District Court New South Wales Medium Neutral Citation: Thornton v State of New South Wales [2015] NSWDC 251 Hearing dates: 23 October 2015 Date of orders: 23 October 2015 Decision date: 23 October 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Statements by plaintiff to medical experts admissible. Catchwords: PROCEDURE – medical expert reports – objections – statements of plaintiff - admissibility Legislation Cited: Evidence Act 1995, s 62, s 64, s 67 Cases Cited: Osborne Metal Industries v Bullock (No.1) [2011] NSWSC 636 Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed 2014, Thomson Reuters (Professional) Australia Limited) Category: Procedural and other rulings Parties: John Edward Thornton (plaintiff) State of New South Wales (defendant) Representation: Counsel: Ms E Welsh (plaintiff) Mr J E Maconachie QC with Mr M S Spartalis (defendant) Solicitors: Stacks/The Law Firm (plaintiff) Crown Solicitor's Office (defendant) File Number(s): 2013/363898 Publication restriction: None Judgment 1. The State of New South Wales takes a number of objections to reports of medical experts, which contain instructions given by Mr Thornton to those experts. The objection is not that the material should be rejected as evidence of what Mr Thornton told the relevant doctors but that it should not be evidence of the truth of what Mr Thornton told the doctors. 2. In times past such evidence would be rejected under the hearsay rule. One of the exceptions to the hearsay rule in the Evidence Act 1995 is s 64 which provides: "64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made. …" 1. Mr Thornton has concluded his evidence. However, he remains available to give evidence and is prepared to return to the witness box to be cross-examined in the event that evidence of representations given in the medical reports warrants further cross-examination. 2. In my view, the terms of s 64(3) provide that representations made by Mr Thornton to a doctor can be evidence of the truth of those representations if the elements of the provision are satisfied. One element is that Mr Thornton is available to give evidence about the asserted fact. He is. 3. Secondly, the representation may be given by a person who saw, heard or otherwise perceived the representation being made. Subject to considerations of the particular representation, that element may be satisfied by the doctor's evidence, including by what is contained in the doctor's report. I note that the doctors in each case are also available to give evidence, although they have not yet been called. 4. The State referred to [1.3.1800] at 274 of the Uniform Evidence Law by Stephen Odgers (11th ed 2014, Thomson Reuters (Professional) Australia Limited) where the decision of McDougall J in Osborne Metal Industries v Bullock (No.1) [2011] NSWSC 636 is summarised as his Honour having decided that where a person who has made the representation had testified but had not given any evidence of the representation and where no offer was made to recall the person to the witness box to allow him to be cross-examined then s 64(3) did not apply because the terms of s 64(1) indicate that subs (3) is concerned to ensure that the person "is available to give evidence about an asserted fact". 5. There is a footnote in Odgers' book to the reference to the judgment of McDougall J. It indicates that his Honour added at [27] that if he were wrong in that construction that there were powerful reasons for exercising the discretion under s 135 not to admit the document in any event. 6. In this instance, although Mr Thornton has concluded his evidence, he remains available and prepared to return to the witness box and be further cross-examined. Thus, the primary concern raised by McDougall J is not present. Further, the question of whether Mr Thornton did or did not give evidence in the witness box to the same effect as that which is contained in the representations in the doctors' reports was not the subject of submission, and so I cannot be satisfied either way of that. But, in any event, the terms of s 64(3) remove the application of the hearsay rule to representations made by a person available to give evidence when there is evidence by a person who saw, heard or otherwise perceived the representation being made, and (see s 62 of the Evidence Act 1995) where the representation is within the personal knowledge of the person making the representation, in this case, Mr Thornton. 7. Of course, the admissibility of this material says nothing about the weight that the material might properly be accorded in deciding the truth of the matters represented. That weight might be affected by the extent to which the witness himself has given direct evidence about the truth of the matters asserted in the representation. 8. Accordingly, as a general rule, a statement by Mr Thornton about something he claims personally to have seen, heard or otherwise perceived is admissible if evidence of the statement being made is given by a doctor. It is admissible not only as to what he told the doctor but as to the truth of the matters the subject of the representation. 9. The State also submitted that s 64(3) of the Evidence Act 1995 only has application to circumstances which are within the ambit of s 64(2). In my view, there is nothing in the text of section 64 which requires the elements of s 64(2) to be satisfied in order for s 64(3) to be satisfied. The provisions cover different circumstances, namely, when a person is not reasonably available to give evidence (subs (2)) or when a person is available and is to be called to give evidence (subs (3)). In this regard the notice provisions in s 67(2) of the Evidence Act 1995 apply to s 64(2) but not to s 64(3), and thus a failure to give notice does not preclude admissibility under s 64(3). 10. I propose now to turn to the particular examples the subject of objection to determine whether they fit within this general construction of s 64(3). ********** 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: 05 November 2015