New South Wales Supreme Court CITATION : Spiteri v Commonwealth of Australia [2003] NSWSC 391 HEARING DATE(S) : 5/05/03; 6/05/03; 7/05/03; 8/05/03; 9/05/03 JUDGMENT DATE : 9 May 2003 JUDGMENT OF : Shaw J DECISION : Evidence admitted CATCHWORDS : Evidence - expert opinion evidence - concessions by counsel - whether use of evidence goes to relevance LEGISLATION CITED : Evidence Act 1995 (NSW) CASES CITED : Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; PARTIES : Joseph Spiteri - Plaintiff Commonwealth of Australia - Defendant FILE NUMBER(S) : SC 20466/96 COUNSEL : Mr P Hennessy SC with J De Berg - Plaintiff Mr P Jones with A Coleman - Defendant SOLICITORS : Astley, Thompson and Valtas Solicitors - Plaintiff Australian Government Solicitors - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 9 May 2003 20466 of 1996 Joseph Spiteri (Plaintiff) v The Commonwealth of Australia (Defendant) JUDGMENT ON ADMISSIBILITY OF EVIDENCE 1 Shaw J: The plaintiff (Mr Spiteri) alleges that he suffered injury as a result of the negligence of the Commonwealth. In particular, he relies upon an incident which occurred on 31 January 1986 at the RAAF Base at Laverton, when some metal shelving fell on him. He says that he incurred significant problems in relation to pain in his neck and back, and psychological problems as a consequence thereof. He claims damages. 2 On 11 June 1999 McInerney AJ of this Court granted leave for the proceedings to be instituted out of time. 3 At the present stage of these proceedings, there does not appear to be any serious dispute that an accident did occur at the time alleged by the plaintiff or that the plaintiff did incur physical disabilities. There is apparently a dispute as whether the psychological problems experienced by the plaintiff exist and there is a dispute about the causal relationship between the accident and the medical condition of the plaintiff. 4 A number of evidentiary objections have been made to the tender of reports by alleged experts regarding the plaintiff's medical condition. The purpose of this interlocutory judgment is to consider those objections to the tender of the evidence. 5 One volume of documents which the plaintiff seeks to tender is described as "Volume 6 of 8". In that Volume, document 3 is a report prepared by Mr Ross Girdler. As I understand, the plaintiff is not pressing the tender of that report at this stage, and accordingly it is not necessary for the Court to rule on its admissibility. 6 Document 4 in the same Volume is a report which has been jointly signed by Mr Girdler and an accountant Mr Dimitriades. That tender is pressed and objection been taken by the defendant to its admissibility. 7 The qualifications of the experts are put before the Court in an abbreviated way but it is asserted that Mr Girdler, apart from being a geologist, holds the degree of a Master of Rehabilitation Counselling (from which institution is not clear), is a Bachelor of Applied Science and has experience of three years as a rehabilitation counsellor in occupational rehabilitation and nine years assisting people with a disability to access rehabilitation and training. 8 Mr Dimitriades is a qualified accountant. 9 The report does have some infelicities, including various references to a singular or a plural author and some ambiguities as to whether the matters asserted are assumptions based on medical material provided to the experts or whether they are the experts' own view. 10 Mr Hennessey, QC, for the plaintiff, has made it clear that the report is not to be accepted as expressing any medical views about the plaintiff, although material is recorded reflecting the understanding of the authors of the report about medical opinions which had been supplied to them. Those opinions put before the authors of the report are specified in par 1.5 of the report. 11 The defendant says that it is not open to counsel to reconstruct or sub-edit a report of this nature so as to qualify or render admissible material which is not appropriately within the expertise of the authors (to 'Makita-proof' a report; referring to Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705). 12 In my opinion, busy experts may recount the assumptions put before them without necessarily or expressly indicating that they are assumptions. The concession of counsel for the plaintiff is proper and means that the report can be considered by the Court on the qualified basis upon which it is tendered. 13 Some aspects of the report are undoubtedly questions of accounting, for example data concerning calculations of interest in relation to past loss and superannuation benefits. Other material in the report refers to the possibilities of rehabilitation of the plaintiff and what assistance needs to be given to him in order to achieve that rehabilitation or to achieve a reasonable quality of life. On the face of it, it seems to me that those opinions are within the legitimate sphere of knowledge of an accountant and a rehabilitation counsellor. I propose to accept the document as part of the evidence. 14 I am reinforced in that conclusion by the assurance of counsel for the plaintiff that both of those witnesses are available for cross examination. 15 The second objection of substance raised by the defendant to the admissibility of documents tendered by the plaintiff concerns a report of a Mr John Davis, an officer of the Compensation and Rehabilitation Branch of the Department of Defence, dated 24 November 1997 and a subsequent letter written by Mr Davis to a medical practitioner dated 4 November 1999. It seems that Mr Davis was a delegate of a Commonwealth authority in whose remit it was to determine questions concerning the plaintiff's treatment or rehabilitation. In one of those documents, Mr Davis expresses the view that It seems to me that Mr Spiteri is totally dehabilitated by back, arm and neck/head pain. 16 It seems to be common ground that the documents are not formal determinations pursuant to a Commonwealth statute, although the plaintiff indicates that he will seek subsequently to tender such determinations. 17 In pursuing his argument to object to the tender of these documents, counsel for the defendant relies up Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401. In that case, the Court of Appeal considered the tender of determinations made under the Commonwealth Employees' Compensation Act 1930 (Cth) and its successor the Compensation (Commonwealth Employees) Act 1971 (Cth). It is asserted by the defendant's counsel, and not contested by the plaintiff, that the legislation was in pari materia with the legislation applicable to the present case. 18 Hutley JA decided that the determination by a delegate did not constitute an issue estoppel and nor did it constitute an admission by the Commonwealth on liability (at 407). Moreover, and this is the passage which is most favourable to the defendant's objection to the admissibility of this evidence, his Honour said that: Even if the alleged admissions had been admitted in evidence, their probative value would be so low that the jury should have been directed that they added no weight to the evidence already admitted. This evidence the jury must have rejected. 19 However, his Honour was not unequivocal about the admissibility of this material and he said: In my opinion, even if the evidence were admissible, its rejection did not result in any substantial wrong or miscarriage. 20 The other members of the Court generally concurred with what Hutley JA said, but did not make any clear or ultimate finding that the material was inadmissible. Samuels JA (at 409) held that the determination and the failure to appeal against it did not amount to an admission and was otherwise of 'little weight'. Mahoney JA held (at 411) that he did not think: …that the finding of such an admission would have been likely to carry substantial weight with the fact finding tribunal, the jury. 21 It seems to me implicit in the discussion by the Court of Appeal, which of course I am bound to, and would, follow, that the report of the delegate was not, as such, inadmissible, but rather, would not constitute an issue estoppel, or an admission and might have little or indeed no weight in the ultimate disposition of the matter. Whether or not this is the case is not a question I must determine at this stage. 22 Prima facie, the material contained in the documents is logically relevant to the factual issues before the Court. The use to which that evidence can be put is a matter for final submissions. 23 However, reliance is placed by the defendant on s 135 of the Evidence Act 1995 (NSW) which enjoins the Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party. 24 Further reference has been made to s 136 of the same Act which allows the Court to limit the use made of evidence if there is a danger of unfair prejudice, or that the evidence would be misleading or confusing. 25 As presently advised, I think the evidence should be admitted subject to submissions about weight. Given that the Court has a discretion under s 135 of the Act, I would exercise that discretion by indicating that it is more appropriate that the material be before the Court and then giving the parties the right to debate what weight (if any) ought to be accorded to it. That should be done after the defendant has had an opportunity to cross examine Mr Davis. 26 Therefore, I would admit the documents which are in dispute into evidence, on the basis of the plaintiff's undertaking that the authors of those reports are available for cross examination. ****** Last Modified: 05/12/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.