X v Sydney Children's Hospitals Specialty Network & Anor (No 3) [2011] NSWSC 1332

Supreme Court New South Wales

Medium Neutral Citation: X v Sydney Children's Hospitals Specialty Network & Anor (No 3) [2011] NSWSC 1332 Hearing dates: 28 October 2011 Decision date: 28 October 2011 Jurisdiction: Common Law Before: Adamson J Decision: 1. Decline to rule that the document entitled "Mead Movement Checklist" is inadmissible. Catchwords: PRACTICE AND PROCEDURE - Evidence Act ss 69, 78 and 79 - evidence - opinion evidence - business records. Legislation Cited: Evidence Act 1995 (NSW) - s 69, s 78, s 79 Cases Cited: Lithgow City Council v Jackson [2011] HCA 36 Category: Interlocutory applications Parties: - "X" (Plaintiff) - Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant) - Dr Brian Kearney (Second Defendant) Representation: Counsel: - K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff) - M.J. Windsor SC, S.A. Woods (First Defendant) - J.K. Kirk SC, Ms V.A. Thomas (Second Defendant) Solicitors: Paul A. Curtis & Co (Plaintiff) GILD Insurance Litigation (First Defendant) Blake Dawson (Second Defendant) File Number(s): 2002/069388 Publication restriction: Suppression order in respect of Plaintiff

Judgment

Objection to document entitled "Meade Movement Checklist" (T234) 1Objection has been taken to a document which is contained in the records of the Marsfield Baby Health Centre ( Marsfield ). It is a two-page document entitled "Meade Movement Checklist" (the Checklist ). 2The Checklist contains a list of movements or activities and beside each there are two options: "PRESENT" or "EMERGING". For example: "Present toy 20-25 cm from baby's face and move toy horizontally 180 degrees. i. Baby follows the toy degrees with eyes" 3One can discern from the Plaintiff's clinical notes from Marsfield the names of the persons who may have performed the test, but there is no evidence as to their qualifications. Furthermore, the test is labelled "results only valid if used with training" but there is no evidence as to whether the persons who may have performed the test have received any training to do so. 4The Defendants contend that the Checklist is not, as the Plaintiff submits, a document that records observations as to the Plaintiff's capacity to move on the day of the test, but rather that there is contained in the document opinion evidence. The Defendants rely on Lithgow City Council v Jackson [2011] HCA 36 and say that, even if I am satisfied that the Meade Movement Checklist is admissible as a business record pursuant to s 69 of the Evidence Act 1995 (NSW), I ought reject it on the basis that it does not comply with s 78 of the Evidence Act . 5I consider that the Checklist (of which the example set out above is typical) contains observations rather than opinions. 6Had I considered that the Checklist contained opinions rather than observations, I would have rejected it on the basis that it does not comply with s 78 (lay opinions), since evidence of the opinion is not necessary to obtain an adequate account or understanding of the person's perception of the matter or event within the meaning of s 78(b). Nor does it fall within the exception to the opinion rule s 79 (opinions based on specialised knowledge) because of the lack of evidence of the qualifications of the person or persons who performed the test. 7Nonetheless, the Checklist as filled in is, in my opinion, a business record of Marsfield which records observations made of the Plaintiff on 9 April 1996, but does not contain opinions. 8The weight to be given to any of the matters recorded in this document is quite another question and I will take some persuasion to place any substantial weight on it. Nonetheless, I do not consider that the weight of this document is so slight as not to warrant its admissibility pursuant to s 69 of the Evidence Act .