New South Wales Supreme Court CITATION : Sendy v The Commonwealth of Australia [2002] NSWSC 546 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 21148/96 HEARING DATE(S) : 17 June 2002 JUDGMENT DATE : 19 June 2002 PARTIES : John Patrick Sendy (Plaintiff) The Commonwealth of Australia (Defendant) JUDGMENT OF : Dunford J COUNSEL : PE Blacket SC (Plaintiff) CC Branson QC / DJ Brogan / IS McLachlan (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : PRACTICE & PROCEDURE - admissibility of evidence - rulings in advance of trial - undesirability CASES CITED : Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 DECISION : See para 4. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Wednesday, 19 JUNE 2002 21148/96 John Patrick Sendy v The Commonwealth of Australia JUDGMENT 1 His Honour: In these proceedings the plaintiff claims damages for personal injuries allegedly suffered by him as a crewmember of HMAS Melbourne when it came into collision with HMAS Voyager on 10 February 1964. The statement of claim was filed 14 October 1996 along with a notice of motion for extension of time. The latter was heard on 16 December 1999 and judgment delivered the following day. 2 The proceedings have now been set down for trial but because of the plaintiff's cardiac condition the hearing has been expedited and arrangements made by me to take evidence on commission from the plaintiff and other local witnesses, including doctors, in Adelaide commencing on 1 July 2002. 3 By notice of motion filed in court on 28 May, as amended by notice of motion filed in court on 17 June, the defendant has sought a number of orders, namely: (a) Leave to amend the defence; (b) That the admissibility of specified statements, reports and articles be considered and determined prior to the commencement of the hearing on 1 July 2002; (c) That the plaintiff be refused leave to rely on such specified statements, reports and articles; (d) That the plaintiff's claim for economic loss be restricted so as not to include any loss of income for the period 1 July 1979 to 30 June 1990 and costs. 4 On 28 May I stood the application for amendment of the defence over to the hearing, indicating that as the proposed amendments went only to damages they were probably unnecessary. On 17 June I heard submissions in relation to the other orders sought, and at the end of the submissions I declined to give the rulings sought, refused (at least for the time being) any application to vacate the fixture for taking evidence on commission and indicated I would give my reasons for doing so today, which I now do. 5 Breach by the defendant of its duty of care is admitted and the issue between the parties is as to damages. As I understand the plaintiff's case it is that as a result of his experiences at the time of the collision he developed various psychiatric conditions, including post traumatic stress disorder which led to substance abuse (namely alcohol and tobacco), which in turn led to his present life-threatening cardiac condition. 6 The defendant, as I understand it, denies the plaintiff suffered from PTSD, denies the connection between that and the substance abuse and denies that the substance abuse is a cause of the plaintiff's present cardiac condition. Alternatively, the defendant will argue that if the plaintiff suffered PTSD, that condition is a result of his service in the Vietnam War, and not his experiences relating to the Melbourne/Voyager collision. 7 Apart from some articles from medical journals which speak of general research into the relationship between substance abuse and cardiac disease - which are clearly inadmissible by themselves, although they may be referred to by other expert witnesses when giving their evidence - the main submission on behalf of the defendant is that the various reports do not contain sufficient histories (in some cases no histories) into the plaintiff's background to justify the opinions expressed showing the alleged connection between his various conditions and that, accordingly, the opinions are inadmissible in accordance with the principles recently discussed by the Court of Appeal in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705. In particular, complaint is made that there are no detailed histories of the extent of his alcohol and nicotine consumption at any particular time or for any particular period during more than thirty-eight years since the collision, especially during his Vietnam service, whether there was any family history of alcohol abuse, whether the plaintiff received any warnings about the dangers of continued use or abuse of alcohol or nicotine, and it is also submitted that some of the doctors trespassed beyond their fields of expertise. 8 The defendant further submits that in the absence of being served with reports from the plaintiff setting out these various matters, it has not had the opportunity or any need to qualify its own experts in these fields, and consequently cannot be ready for trial and, particularly in the absence of proper histories, cannot effectively cross-examine the plaintiff. 9 In my opinion it would be a mistake to examine each report or each doctor in isolation, particularly in advance of the trial or of the plaintiff giving evidence. The plaintiff is entitled, if he can, to prove the links in his case from a series of experts complementing each other and it may be only after all the evidence is in that a proper decision can be made as to which parts of the evidence of the various medical witnesses are properly admissible as expert evidence. Some doctors may not have seen the plaintiff but may still be able to say that if propositions A, B and C are established, their opinion would be X, leaving it up to the plaintiff to establish A, B and C independently. At the end of the day, if the plaintiff has failed to prove the hypotheses on which an expert opinion is based, the expert's opinion will be inadmissible; but it may not be possible to determine this issue until the completion of the evidence. 10 Supreme Court Rules Pt 36 r 13A requires that the expert's reports which must be served contain the "substance" of the expert's proposed evidence. In some cases the report may be expressed in terms which would not come within the proper expression of an admissible expert opinion but it may, nevertheless, contain the "substance" of the expert's evidence which can be expressed orally and in appropriate terms at the hearing. This is another reason for not giving the rulings in the nature sought in advance of the hearing. 11 As to the defendant's complaint that there is nothing in the reports about whether the plaintiff received any warnings of the dangers of continued use or abuse of alcohol or nicotine, this amounts to the defendant seeking assistance in respect of an issue on which it carries the onus of proof, namely, contributory negligence. 12 It will be for the plaintiff to prove his history and if he fails to do so obvious consequences will follow. Meanwhile, it is and has for some time been open to the defendant to make enquiries as to his history through its own expert witnesses, as it has in fact done through Dr Champion and Dr Roldan, and by making enquiries of personnel who served with the plaintiff in Vietnam. It was not necessary for the defendant to wait until it received what it regarded as "proper" or "adequate" histories before making its own investigations. 13 Similarly, there was no need for the defendant to wait until it received what it regarded as "satisfactory" medical reports on the links between PTSD, substance abuse and cardiac disease before it qualified its own experts, at least in a preliminary general sense. 14 The nature of the plaintiff's claim on damages has been known since the service, shortly after 18 October 2001, of the statement of particulars under Pt 33 r 8A. Indeed, the defendant has in fact not been inactive. It had the plaintiff examined by Dr Champion, psychiatrist, on 22 February 2002 who furnished a report dated 26 February 2002, but which was only served on the plaintiff's solicitors as recently as 29 May and Dr Roldan, psychologist, who saw him on 6 September 2001 and whose report was also served on 29 May. Apparently he was also seen on behalf of the defendant by Dr Phillips, whose report has not been served. Both Dr Champion's and Dr Roldan's reports contained detailed histories and a detailed opinion on the relevant issues by Dr Champion. I expect there may be some objection at the trial to some of the opinions expressed by Dr Roldan as being outside his field of expertise, and if there are such objections, they will then need to be determined. 15 In any event the plaintiff swore an affidavit dated 30 November 1998 in support of his application for an extension of time, and from the bottom of page 8 that affidavit contains considerable history as to his drinking and tobacco use. In my opinion the defendant has known for some time the essential elements of the plaintiff's claim for damages, including the history on which he relies. 16 An expedited hearing having been granted because of the plaintiff's life-threatening disease, I would be most reluctant now or at any later stage to grant any adjournment, and although I have reserved leave to the defendant to apply for an adjournment at a later stage, that should not be regarded as an indication that such adjournment is likely to be granted. It will need to be considered on its merits at the relevant time. 17 In the meantime I am satisfied that the plaintiff has provided sufficient information of the case sought to be made, so that the defendant is not disabled from properly answering the plaintiff's case and, for the reasons given above, I am satisfied that all questions of admissibility of expert evidence should not be determined before the hearing and in some cases the ruling may need to be deferred until after all the evidence is complete. 18 Costs of the motion are reserved. ********** Last Modified: 06/26/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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