STATE FORESTS OF NSW v Scott Leslie DINNERVILLE [2004] NSWCA 127

New South Wales Court of Appeal

CITATION : STATE FORESTS OF NSW v Scott Leslie DINNERVILLE [2004] NSWCA 127 HEARING DATE(S) : 6 April 2004 JUDGMENT DATE : 6 April 2004

JUDGMENT OF : Mason P at 1; Giles JA at 45; Ipp JA at 46 DECISION : Appeal dismissed with costs.

PARTIES : STATE FORESTS OF NSW v Scott Leslie DINNERVILLE FILE NUMBER(S) : CA 40885/03 COUNSEL : Appellant: D G T Nock SC Respondent: D Campbell SC / R F Wilkins SOLICITORS : Appellant: Leigh Virtue & Associates Respondent: Boyd & Longhurst

LOWER COURT District Court JURISDICTION : LOWER COURT DC 51/01 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 4O885/03

MASON P GILES JA IPP JA

Tuesday 6 April 2004

STATE FORESTS OF NEW SOUTH WALES v SCOTT LESLIE DINNERVILLE JUDGMENT 1 MASON P: This is an application for a new trial with respect to a trial in the District Court before judge and jury. Part 51 Rule 23 of the Supreme Court Rules stipulates that the Court shall not order a new trial in such a matter unless it appears to the Court that some substantial wrong or miscarriage has been occasioned. 2 The respondent, to whom I shall refer as the plaintiff, sued the appellant, to whom I shall refer as the defendant, for damages in the District Court. The plaintiff had been employed as a field worker between about February 1994 and February 1997. His claim was that the employer was negligent in requiring him to prune trees with a new type of shears, introduced by the employer, that were said to have caused injuries to his right wrist and hand, and damage to the carpal tunnel in the right wrist. 3 The trial took place at Orange before Williams DCJ and a jury of four. The main issues were negligence and whether the plaintiff's injuries were work-related and continuing. A set of agreed questions were used as the basis of addresses by counsel and were put to the jury to assist them. Nevertheless, the jury brought in a general verdict in the plaintiff's favour in the sum of $283,062.68 and the learned trial judge entered a verdict and judgment accordingly (subject to agreed statutory adjustments: see Red 9). The jury's finding of negligence is not in dispute in the appeal. 4 The appellant seeks the new trial because of the directions given or not given to the jury as to how they should resolve the medical issues; in particular, issues as to any conflicts between the testimony of doctors who gave oral evidence and were cross-examined on it and the testimony of doctors who were not called to give oral evidence and whose reports were simply read to the jury. 5 Part 28, Rules 8 and 9 of the District Court Rules prescribe procedures for the exchange and use of expert reports. Except by leave or consent, oral expert evidence in chief is not admissible unless that evidence is covered by the expert's report served in accordance with Rule 8. This rule does not, however, preclude the party who has served the report from calling the expert to give oral evidence in chief. That choice is left to the parties and their legal advisers. 6 Rule 9 effectively throws upon the party wishing to challenge the evidence of a witness whose report has been served the burden of procuring the attendance of that witness by the service of a subpoena or otherwise. Unlike the Supreme Court counterpart, Rule 9 extends to jury trials. 7 It appears that each party served copies of medical reports within the time limits prescribed. There may have been a minor dispute about the lateness of one of several reports by one of the doctors who gave oral evidence, but that is not a matter of present concern. 8 The plaintiff was the first and principal witness at trial. He gave evidence of his work history, including his employment by the defendant. In late 1996 he was provided with a new type of pruning shear. Thereafter, pruning became more difficult and he gradually developed pins and needles in his fingers and pain in his elbow, especially on the right hand side. The pain used to wake him up at night. He bought a Thermo-skin elbow guard which helped at first. Eventually he consulted Dr Rickard-Bell, a general practitioner at Bathurst. Later he was referred to a neurologist, Dr Hughes. 9 Dr Rickard-Bell treated the wrist with a steroid injection and subsequently surgically released the carpal tunnel. Unfortunately, the pain continued, despite the plaintiff going onto light duties. The symptoms would recur whenever he returned to pruning. 10 The plaintiff's employment came to an end in February 1998 when he was taken into custody following conviction for a criminal offence. At the prison farm he tried doing pruning but found that his symptoms returned. The plaintiff was still being treated for the hand and wrist problems up to the time of trial in May 2003. He said that the adverse symptoms were continuing. 11 In final address, counsel for the defendant told the jury: The medical evidence is clear, he's got a carpal tunnel problem. The dispute in the medical evidence is whether it's ongoing related to his employment or not. The defendant's doctors say it isn't, the plaintiff's doctors say it is. 12 This was a fair summation of the medical issues, although somewhat exaggerated as to the effect of the defendant's doctor's evidence. 13 The plaintiff was cross-examined on many topics but it was never suggested to him that his complaint of pain in the wrist and arm were feigned. To the limited extent that he was challenged on the matter, the plaintiff adhered to his position as to significant continuing pain and disabilities. He was corroborated as to injury by the evidence of his father, his former wife and two workmates. 14 Medical evidence was adduced by the plaintiff from his treating doctors and one medical practitioner apparently retained for medico-legal purposes. The defendant adduced evidence from doctors who appear to have been retained for medico-legal purposes. Two doctors gave oral evidence for the plaintiff. They were Dr Rickard-Bell, the treating general practitioner, and Dr Bertouch, a consultant rheumatologist. The evidence of other doctors relied upon by the plaintiff and defendant respectively were given by means of their reports being read to the jury. In all but one instance, this was done by consent and on the basis that it was common ground that the doctor was unavailable to be called. The jury were informed about this. 15 For a while there was a contretemps in the absence of the jury about the defendant's failure to call one of its doctors, Dr Potter. Initially, counsel for the defendant told the Court that it was intended that this doctor would be called as a witness. This decision was revised during the trial. The plaintiff's counsel raised objections to portions of his reports on various evidentiary bases. It was complained that the doctor should be called to be cross-examined when it had previously been indicated that this would occur. This issue was ultimately resolved in a manner that is no longer in issue. Agreed portions of the doctor's report were read to the jury in the manner of the earlier reports that had been treated this way. 16 Dr Rickard-Bell treated the plaintiff over several years in relation to the injury. He gave evidence of symptoms reported and treatment provided by himself and specialists. Nerve conduction studies were performed by a specialist neurologist, Dr Hughes. They confirmed Dr Rickard-Bell's diagnosis of carpal tunnel syndrome (Black 162-3). Dr Rickard-Bell administered a steroidal injection on 11 February 1997. The carpal tunnel was decompressed by surgical procedure on 4 March 1997. There was physiotherapy. The early post-operative results were favourable but the recurrence of symptoms was reported following a return to pruning work in April 1997. 17 Dr Rickard-Bell's evidence spanned thirty two pages of transcript. He gave a detailed account of symptoms reported, matters of anatomy and treatment provided. He expressed clear opinions as to his diagnosis of the condition, its cause and its likely long term duration. He explained in detail why he attributed the plaintiff's symptoms to the use of the pruning shears provided by the defendant. He expressed views as to the work the plaintiff could and could not handle and the treatment required for his continuing problems. In chief, Dr Rickard-Bell was taken in evidence to the views of other treating doctors. On occasions he explained them or commented on them. As to some issues he deferred to the evidence of specialists. 18 Dr Rickard-Bell was cross-examined at trial by counsel for the defendant, but it is difficult to see the lines that were being pursued. He was not confronted with the opposing medical views expressed in the reports of the defendant's doctors. On my reading of the cross-examination, there was really no serious challenge to the main thrust of his testimony in chief. 19 Dr Bertouch, a rheumatologist engaged for forensic purposes, also gave evidence for the plaintiff. Based upon a history from the plaintiff that he obviously accepted, he gave evidence corroborating Dr Rickard-Bell's diagnosis, prognosis and treatment. He very much doubted that there would be any improvement in the future. He observed no evidence supporting the view that the plaintiff was constitutionally predisposed to carpal tunnel syndrome. Dr Bertouch accepted that a second surgical procedure was a possibility but he was very guarded as to its likely success. He too was not confronted in cross-examination with the opposing body of medical opinion. 20 The plaintiff had served reports from two other doctors, Dr Harrison, an orthopaedic surgeon, and Dr Morgan, a rehabilitation specialist. As indicated, it was agreed that neither was available to give evidence at trial. Without objection their reports were read to the jury. Before Dr Morgan's report was read, the jury were told (Black 204): Of course, I will say this to you, whether it's a witness for the plaintiff or the defendant, if that turns out to be the case, that having the report read to you, you are entitled to accept that report as part of the evidence in the proceedings. Of course, unlike, for example the last two doctors who were called, the maker of the report isn't available to be asked questions by Mr Campbell [counsel for the plaintiff at trial] and more importantly by Mr Arden [counsel for the defendant], so you'll have to bear in mind, when considering the value you place upon that report - and it's entirely a matter for you what value you place on the report - the fact that the witness hasn't, you know, been tested, as it were by examination and cross-examination, so just bear that - it may in the long run not be much of an issue, but it's something to bear in mind. 21 Dr Harrison's reports were read and immediately after that occurred the judge said to the jury (Black 220): Yes, well again ladies and gentlemen just remind you that the reading of these medical reports falls into the same category as the reading of the report that we had yesterday from Dr Morgan. 22 These reports were lengthy, they recorded histories from the plaintiff and expressed firm opinions favourable to the plaintiff's case as to the injury being work related and the likelihood that it would continue. 23 At the close of the plaintiff's case, counsel for the defendant proceeded without objection to read the reports of his medical witnesses. They were Dr Edwards, a surgeon, Dr Harvey, an orthopaedic surgeon, and Dr Hughes, a consultant orthopaedic surgeon. These reports did not dispute the diagnosis of carpal tunnel syndrome but they either disputed or gave only qualified support for the work-relatedness of that symptom and they expressed robust opinions as to the plaintiff's present fitness for work. 24 Counsel for the defendant then sought to tender a report from Dr Potter, a rheumatologist. He was the doctor that the defendant had originally indicated would be called. Counsel relied on Part 28 Rules 8 and 9. Counsel for the plaintiff protested and threatened to comment on the unavailability of Dr Potter for cross-examination (Black 253). In the course of discussion, in the absence of the jury, it was recorded (Black 253) that there was an agreement by plaintiff's counsel that he would not comment on the absence of the doctors whose reports had earlier been read, but it was made plain that that arrangement would not extend to Dr Potter. 25 Counsel for the defendant relied on the rules and asserted his right to tender the report. The debate continued with references to s 135 of the Evidence Act. Ultimately, portions of the report were excised by agreement or direction of the trial judge. The upshot was that counsel for the defendant read the balance of Dr Potter's report and then closed the defendant's case. 26 Before counsel addressed the jury, the judge told the jury (Black 267) that