District Court New South Wales Medium Neutral Citation: Thornton v State of New South Wales (No 2) [2015] NSWDC 252 Hearing dates: 23 October 2015 Date of orders: 23 October 2015 Decision date: 23 October 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: I do not reject the hospital notes on the basis of their time of service. Catchwords: PROCEDURE – admissibility of hospital notes – whether order for service of expert reports covered hospital notes - whether hospital notes are "hospital reports" – whether a "hospital report" is an "expert's report" Legislation Cited: Uniform Civil Procedure Rules 2005, Pt 31 Div 2, r 31.18, r 31.28 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. On 19 May 2014 the Judicial Registrar made orders including order 3 which stated, "Plaintiff to serve medical and other expert reports by 30 July 2014." Mr Thornton did not serve upon the State of New South Wales the hospital notes from John Hunter Hospital by that date, but did serve them more than 28 days before the hearing. 2. Rule 31.28 of the Uniform Civil Procedure Rules 2005 provides: "31.28 Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. …" 1. The question to be determined is whether order 3 of the Judicial Registrar setting a time for service of "medical and other expert reports" was an order that covered the hospital notes. 2. Rule 31.18 of the Uniform Civil Procedure Rules 2005 provides a definition for both an expert's report and a hospital report as follows: "expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based. hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial." 1. A proper construction of the term, "hospital report", includes the hospital notes sought to be tendered. The hospital notes are written statements which concern Mr Thornton and are intended to be adduced in evidence. The term "hospital report", speaking generally, embraces all of the material produced by the hospital which is sought to be tendered. 2. Once it is determined that the hospital notes are within the definition of "hospital report" in r 31.18 the real question, frankly acknowledged by the State, is whether the reference in order 3 to "medical and other expert reports" embraces "hospital report[s]". 3. Although alternative constructions of order 3 are available, in my view, the use of the word "other" in the Registrar's order means that the order was directed to medical expert reports and other expert reports. The quality of being "expert" material seemed to be accepted by the State. It submitted that the order embraced "medical material of an expert nature". 4. Thus, the Registrar's order raises the question: whether a "hospital report" is an "expert's report" under Part 31 Division 2. In my view, it is not such a report. Although an "expert's report" extends beyond an "expert witness" who is engaged to give opinion evidence for the purpose of the proceedings, nevertheless, an expert's report requires a statement that sets out the expert's opinion, and the facts and the assumptions of fact on which the opinion is based. I would not regard that as characteristic of the statements contained in a hospital report. For this reason, I conclude that hospital reports including hospital notes are generally not within the ambit of an "expert's report" in all cases. 5. The State referred me to the title of the division: "Provisions applicable to expert evidence generally". The title of the division is generally not part of the legislation, subordinate legislation in this case, but can be taken into account in construing provisions within the division. However, the title is insufficient to persuade me that a hospital report is necessarily an expert's report. 6. Rule 31.28 states that, "Each party must serve experts' reports and hospital reports". If hospital reports were expert reports, then the last three words of that quotation would be otiose. Whilst surplus words in legislation are not unknown, the clear distinction between experts' reports and hospital reports in r 31.28 fortifies me in the view that a hospital report is not an expert's report in the terms of Division 2 of Part 31, nor is it an expert's report in the terms of order 3 made by the Judicial Registrar on 19 May 2014. 7. For those reasons, I am of the view that a failure to serve hospital notes by 30 July 2014 was not a breach of order 3 made by the Judicial Registrar on 19 May 2014, nor a breach of r 31.28(1)(a). In other words, there was not, at the stage of service of the hospital notes, an order of the Court dealing with hospital notes. Thus, the relevant provision of r 31.28 is sub rule (1) para (c), which required service at least 28 days before the date of the hearing. That obligation was satisfied. 8. Accordingly, I do not reject the hospital notes on the basis of their time of service. ********** 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