Supreme Court New South Wales Medium Neutral Citation: Joel Joseph Cabides v Commonwealth of Australia [2014] NSWSC 445 Hearing dates: 14 April 2014 Decision date: 14 April 2014 Before: Rothman J Decision: 1. Application for a separate determination of the questions raised in the motion, notice of which was filed on 3 March 2014, dismissed; 2. Otherwise, motion dismissed; 3. Costs reserved, to be decided by the trial judge. Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Makita (Australia) Pty Ltd v Sprowles 2001 NSWCA 305; (2001) 52 NSWLR 705 Category: Interlocutory applications Parties: Joel Joseph Cabides (Plaintiff) Commonwealth of Australia (Defendant) Representation: Counsel: K. Andrews (Plaintiff) M. McCulloch SC with P. Jones (Defendant) Solicitors: File Number(s): 2013/00106981 Publication restriction: None Ex TEMPORE Judgment 4The substantive proceedings between the parties seeks damages for alleged negligence. Liability has been admitted and the assessment of damages has been listed for a 4-week hearing commencing 19 May 2014. 5The plaintiff is a tetraplegic following an accident on a basketball court during a course for the Royal Military College in Duntroon. Damages will be significant. 6The plaintiff by motion of notice filed 3 March 2014 seeks orders the effect of which, is to exclude the expert report of Professor David Strauss, Dr Robert Shavelle and Professor Michael DeVivo. 7Each of the reports deals with life expectancy issues, which is a substantial issue in the proceedings relating to damages. 8Professor Strauss and Dr Shavelle prepared reports in which they refer to previous studies and articles by each of them (which articles are provided) and in turn depend upon a life table relating to longevity calculated for the plaintiff based on a study conducted in the United States using the United States Model Systems SCI database. As must be obvious, SCI stands for Spinal Cord Injuries. 9Evidence before the Court, albeit on an interlocutory basis, describes the materials and methods used in the SCI study. The study was performed on patients ventilated during admission between the years of 1981 and 2005. 10Detailed descriptions of the history, eligibility criteria, data collection, data quality control procedures, and current status of the National Spinal Cord Injury Statistical Centre (NSCISC) database were relied upon. 11In order to be included in the study, individuals whose circumstances are recorded were required to be ventilator dependent on discharge from inpatient rehabilitation. A definition of ventilator dependent has been provided. 12Demographic data were collected by trained individuals over a period of 30 years, using a standardised protocol, which data was sent to the NSCISC database. A neurological examination was performed prior to the model system discharge in accordance with that which was then (i.e. at that time) the most current version of the international standards. 13As is obvious for a longevity study, a date of death was recorded in relation to a number of patients. This was recorded by utilising different sources, including social security records, follow-up data collection activities, and individual state death indices online. Persons not reported as deceased were assumed to be alive. There are comparable studies with a level of 92.4% sensitivity compared with 99.5% for the NSCISC database study. 14Causes of death are documented from three sources including the death certificate, the hospital discharge summary or autopsy report. Again, the same methods were used as were used in national studies for the United States, except that, in the case of these statistics, any death caused by the original injury to the spinal cord (or other conduct that caused the spinal cord injury) was excluded from consideration. 15Essentially, the plaintiff's application seeks orders under s 192A of the Evidence Act 1995 and/or s 66(2) of the Civil Procedure Act 2005 (including Part 28 r 28.2 of the Civil Procedure Rules 2005) for a number of remedies; the effect of which is: (1)A ruling that the evidence relying upon the original studies is inadmissible; (2)In the alternative, the Court order a determination on a separate question on the admissibility of the foregoing expert reports. 16The plaintiff, accurately, summarises the situation with the report as being one involving a study of 435 persons requiring ventilatory support. For obvious reasons, the persons have not been chosen randomly, even amongst those suffering such injuries. Moreover, not all persons suffering such injuries are included in the study group. 17The plaintiff has sought and has not been provided with access to the original database material. The plaintiff wishes to test the accuracy of the database information and the relevance of the database information having regard to the different factual circumstances associated with these proceedings as against the patients recorded in the study. 18The possible factual differences are manifest: the existence or otherwise of brain injury; the cause of death and its relevance to the circumstance of the plaintiff; the extent of other injuries suffered by the patients in the study; the relative fitness of the patients prior to the accident, compared to the fitness of the plaintiff; and, most importantly, the level of medical support, and quality of medical support, available to the patients whose circumstances have been summarised in the database. 19One of the major issues is the well-known and significant difference of the availability of relatively inexpensive medical treatment in Australia as against the medical treatment that may be available in the United States. Moreover, it is unclear whether any of the persons in the study had available medical treatment the cost of which was indemnified by insurance or medical fund payments. 20There are other experts relevant to the question of life expectancy that have been qualified by the defendant and a number that have been qualified by the plaintiff. The reports of Professor Strauss and Dr Shavelle rely upon peer-reviewed articles, some of which they have authored, and, it is said by the defendant, not on the original database or the contents thereof. Reliance upon peer reviewed articles to form an opinion is not unusual. 21Ultimately, the issue is one that involves the exercise of discretion, to be exercised judicially and I take it into account the following facts, amongst others: (1)The trial is listed in approximately 4 weeks; (2)Rejection of the report of Professor Strauss and Dr Shavelle would be an irremediable prejudice to the defendants at this late stage; (3)The trial is before a judge alone and not before a jury; (4)It is an exceptional matter to order the separate trial of a matter such as this, or at all, and, ordinarily, the trial should take its ordinary course; (5)Notwithstanding the immediately proceeding criterion, inconvenience of a determination at a preliminary stage is countered by s 192A of the Evidence Act and will often lead to greater convenience because of the effect on the knowledge of the parties during the hearing as to what may or may not be adduced; (6)The overriding purpose and the mandate to the Court, legal practitioners and parties being the overriding purpose to the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues between the parties. 22There is much to be said for the plaintiff's submission that the studies in the United States may not be wholly applicable to the circumstances in Australia or wholly applicable to the particular circumstances of the plaintiff. However, that is an argument that may be advanced as conveniently to the trial judge as it is at a preliminary hearing or to me on the motion. 23The alternative suggestion that there be a preliminary hearing on the admissibility of the evidence is, in effect, a motion that would seek to repeat an argument on the primary relief agitated before the Court today. It seems to me, the material is either objectionable and ought not be admitted, or is a matter that should be dealt with by the trial judge in what ever way is convenient during the period already allocated. 24Ultimately, the decision is one, as already stated, for the exercise of discretion. The impugned expert reports generally comply with the criteria adumbrated in Makita and would, but for these particular issues, be admissible and able to be used by the defendant. 25The basis for the opinion of the impugned reports are expressed in them, as has been stated. They rely upon earlier articles, which, in turn, rely upon sourced data. The sourced data is not available to anyone other than for the purpose of medical research. 26The difficulties associated with that proposition, the fundamental differences between the Australian and United States medical facilities and the inability of the experts to support the sourced data are each matters that the plaintiff can adequately raise with the trial judge to influence the ultimate decision as to which of the experts' assessment of longevity should be preferred. 27One issue that was of great concern to the Court through the agitation of the motion is the proposition that the plaintiff would be surprised by the provision of the sourced data later during the course of preparation for the hearing or, even worse still, during the hearing itself. My exchange with counsel for the defendant satisfied the Court that the sourced data will not be relied upon during the hearing by the defendant. Nor will the particular circumstances of the patients, whose longevity has been measured in the study. I mean by the foregoing, relied upon beyond that which is already reported in the earlier articles. 28I have placed reliance upon that assertion as one which will not result, to any greater degree that is already the case, in prejudice the plaintiffs' position. Were it otherwise, a different result may have eventuated and/or other remedial orders may have issued. 29Ultimately, it is my view that the issue agitated in the motion is a matter, if it were continued to be raised, that should be dealt with by the trial judge and not on a preliminary basis by way of ruling. 30In those circumstances, the Court makes the following orders: (1)Application for a separate determination of the questions raised in the motion, notice of which was filed on 3 March 2014 dismissed; (2)Otherwise, motion dismissed; (3)Costs reserved, to be decided by the trial judge. ********** 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. Decision last updated: 16 April 2014