Supreme Court New South Wales Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 2) [2015] NSWSC 1663 Hearing dates: 20; 21; 22; 23; June 2015; 2 November 2015 Date of orders: 02 November 2015 Decision date: 02 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: I reject the first defendant's application to recall the plaintiff for further cross-examination Catchwords: PROCEDURE – civil – application to recall plaintiff for cross-examination – following email exchange between plaintiff and first defendants solicitors – where first defendant wants to put to the plaintiff he was lying over certain matters Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Browne v Dunn (1893) 6 R 67 Category: Procedural and other rulings Parties: Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant) Representation: Counsel: DR Campbell SC with S Longhurst (Plaintiff); RJ Burbidge QC with A Casselden (First Defendant); M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff); Hicksons Lawyers (First Defendant); Moray & Agnew Lawyers (Second Defendant) File Number(s): 2010/349997 ex tempore judgment (revised) 1. This is a claim for personal injuries in which the plaintiff claims substantial damages from his employer and post employer for personal injuries received at work as long ago as 2008. The injury claimed is a back injury. There can be no question that the plaintiff was required to perform heavy work involving jack-hammering and heavy lifting working replacing sleepers in the city circle railway tunnels. It is unlikely that there will be much dispute that, whatever the cause of it, he had pathology in his back amenable to surgery because part of his treatment involved a laminectomy and spinal fusion at L5‑S1. He has been in receipt of workers' compensation virtually ever since 2008. 2. When the hearing commenced before me on 20 July last I was told at the outset that the original estimate that had been given by the parties of a five day hearing was unfortunately inaccurate and that the case would go much longer that it. This seemed to be accepted by all counsel. The statement proved to be accurate because the case proceeded before me over four days at then when the only oral testimony taken was the evidence of the plaintiff, and some short evidence going to quantum from his mother. 3. When outlining his case to me Mr Burbidge of Queens Counsel, who appears with Mr Casselden for the first defendant, explained that the plaintiff's credibility is of paramount importance and that there would be a great deal of lay evidence from the first defendant. I think that statement was made good at least in as much as the plaintiff was cross‑examined, with respect, by Mr Burbidge on some part of the four days that were taken for the hearing at that time. The matter has now been set down for further hearing before me with an estimate of one week plus, that is to say, that the matter may yet run for in excess of five days, I do not know, perhaps for as many as ten. 1. From the course of the cross‑examination it was evident, as I have said, that the first defendant challenged the reliability of virtually everything the plaintiff said about the nature of his work; how he came to be injured, whether at work or perhaps somewhere else seemed to be the implication; whether he was injured at all; and the nature and extent of any ongoing disabilities and incapacity. 2. A feature of the plaintiff's case is that he complains of virtually constant unremitting pain unamenable to relief by any of the treatment he has so far had over the space of about seven years. When he saw the operating surgeon Dr Peter Bentivoglio on 31 March this year, as recorded in his report of 4 May 2015, he told him that he was taking as many as 20 Panadeine Forte tablets a day. I do not think there is any issue in this case that Panadeine Forte is a drug that can only be obtained, lawfully anyway, from a chemist by doctor's prescription. 3. This caused Dr Bentivoglio to comment: He needs to be reviewed by a pain clinic to rationalize his pain medication. Taking 20 Panadeine Forte a day is totally incorrect. I have told this directly to him. He should not take more than 8 a day. If this is not enough he needs to have something else added to that medication. 1. I am unaware of whether he has had recent pain management, in any event, he was cross‑examined about those matters on 27 July 2015. Specifically he was asked about whether he had been told by Dr Bentivoglio, inter alia, that he was taking too many Panadeine Forte (212.15T). Although the plaintiff's answer, I must say, is just a little bit difficult to decipher he does seem to have acknowledge, in his evidence, that he was given that advice. He said in part: The only day I was told that is only about my last appointment with Dr Bentivoglio and he said that, "We're getting to the stage where you're having too many and we've got to see some other pain source.'" [sic] So, then he wrote to Dr Ajam, which I don't longer see, and I'm getting another doctor in Dubbo, and it's quite hard to get GIO with the paperwork and everything, and we're just getting that settled out now. So you're talking about something that is actually right now that's only been given to me to do. So don't try to make out that it was four years ago and that the doctors said "You need to swap your pain relief." [sic] 1. I should interpolate, as Mr Campbell SC has reminded me, there is a history in this case of the plaintiff having suffered a significant closed head injury some years before the alleged industrial accident, which might account for some of his mode of expression and presentation. At least doubtless Mr Campbell will so submit at conclusion of the case. 2. The cross‑examination about that topic continued until the following page. Mr Donald said he got the prescription for Panadeine Forte from Dr Ajam, his doctor in Wollongong. He was asked whether he had got anything from the doctor in Dubbo whose name he was unable to remember. This evidence is at 213.20T: Q. Did you get a prescription from him for Panadeine Forte? A. No. 1. It must be said that at this stage, as at other stages, of his evidence the plaintiff was, to say the very least, somewhat argumentative. But I think the evidence is tolerably clear in as much as he acknowledged that he had given that history, at least by implication, to Dr Bentivoglio; that Dr Bentivoglio had told him to stop taking so much medication at the time he last saw him; that he had received prescriptions only from Dr Ajam for that drug; and that he had not received a prescription for it from the doctor he saw in Dubbo, whoever that doctor is. 2. I have taken all this time to deal with this matter because at the commencement of proceedings this morning Mr Burbidge made an application for the plaintiff to be recalled for further cross‑examination on this topic of the plaintiff's consumption of Panadeine Forte. Mr Burbidge has informed me that he wishes to put to the plaintiff that when he said to Dr Bentivoglio, and at other times, that he was taking as many as 20 Panadeine Forte per day for his pain he was lying. It might be said that there are nuances to this, in as much as the evidence before me on this application seems to demonstrate: that there is no evidence of any prescription for Panadeine Forte since March of this year and there is now an admission offered through the plaintiff's solicitor that he has not taken any prescription pain killing medication since Dr Ajam's last script. I am getting ahead of myself. 3. This particular issue arose in a series of emails exchanged between the solicitor for the first defendant and the plaintiff's solicitor. The first email is from the defendant's solicitor and is dated 28 October 2015, that is last Wednesday, some three and a bit months after the case was adjourned. It referred to the evidence of the use of up to 20 Panadeine Forte tablets per day and asked for some "particulars" of the issue of prescriptions, to enable leave for short service of a subpoena to be sought. I will allow myself to comment that there had been ample time to issue any subpoenas without any order for short service if this issue was at the centre of the first defendant's case in relation to the nature and extent of any injury and ongoing disability. 4. In any event, there were, with respect, some inconsistencies in the responses emanating from the plaintiff's solicitor, but however that may be, at 4.40pm on 29 October 2015 the plaintiff's solicitor responded and corrected the inconsistency in clear terms by saying the plaintiff has not taken any prescription pain-killing medication since the last of Dr Ajam's scripts. The last Dr Ajam script has been put before me as Exhibit VD2. It proves, as I have said, that it was was filled on or about 27 March 2015. Exhibit VD2 is, in fact, the invoice from the Bayview Medical Centre at Warrawong confirming the script was filled on that day. 5. That document was provided to the first defendant by the second defendant, the employer, although Mr Windsor of Senior Counsel reminds me the employer and the insurance company managing the claim do not necessarily have the same interests in the proceedings and he does not appear for the insurer ??. In any event, he has informed me that the document provided through his client or solicitor was produced to the Court in response to one subpoena or another before the matter commenced before me on 20 July 2015. 6. Now, Mr Campbell, as I have said, opposes Mr Burbidge's application. He points to the fact that every opportunity was given and taken for the first defendant to cross‑examine the plaintiff when the matter was last before me. He reminds me of the difficulties of the plaintiff's presentation, which he will submit, as I have said, might be due to his head injury and in any event says that he will not take any Browne v Dunn (1893) 6 R 67 point about this passage of evidence if the defendant, as I understand it, were to submit that the evidence given by the plaintiff about consuming 20 Panadeine Forte tablets per day was inconsistent. 7. Although the plaintiff's evidential statement (Exhibit A1) refers to the consumption of up to 20 Panadeine Forte per day, his actual evidence before me seems entirely consistent with the material that has been put before me today to justify this application for further cross‑examination. I appreciate that there may be a very significant and large difference between a defendant being in a position to put to me that for the very many reasons, fully covered and rehearsed in the thorough, exacting and detailed cross‑examination of the plaintiff that there are difficulties with accepting the plaintiff's evidence at almost every point, on the one hand, and being in a position to say he has lied about a matter, on the other. If that latter submission is to be put, well, with great respect, whatever the attitude of learned senior counsel for the plaintiff, it needs to be put to the plaintiff directly so that he can have the opportunity of answering it in court on his oath. 8. My difficulty with the application is that having recounted his evidence on the last occasion about this matter, I am not persuaded that the material relied upon to found the application is substantially inconsistent with what he said on that occasion. In coming to that conclusion I bear in mind what I have said about the previous thorough and exacting cross‑examination. Sure enough Mr Burbidge has indicated to me that the necessary further cross‑examination is short, and I accept that it would be; however, that is not the point. Mr Burbidge acknowledges that this is an exceptional application, as I would expect of senior counsel of his eminence. However, that being so, I do not think the evidence or materials put before me are exceptional, or prove that the case is exceptional. Doubtless there will be much for the first defendant to work with when addressing me about what I should, and should not, accept of the plaintiff's account. Doubtless there will be much for the plaintiff's legal representatives to put on his side of the ledger. However I am not persuaded that the interests of justice between the parties, or the overriding purpose of civil litigation encapsulated in s 56 of the Civil Procedure Act 2005 (NSW) require me to allow the cross‑examination of the plaintiff to be re-opened. ********** 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: 10 November 2015