Supreme Court New South Wales Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 6) [2015] NSWSC 1751 Hearing dates: 20 – 23; June 2015; 2 – 5 and 9 November 2015 Date of orders: 09 November 2015 Decision date: 09 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: I reject the tender of the letter of 13 May 2013 Catchwords: EVIDENCE – admissibility of purported admission in letter from second defendant – application of s 79 Evidence Act – Lithgow City Council v Jackson Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 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. Mr Campbell SC tenders a letter dated 13 May 2013 under the hand of an officer of AAI Limited trading as GIO which is a scheme-agent for the New South Wales WorkCover Scheme. He tenders it substantially to obtain evidence of an opinion expressed in these terms: "After carefully considering the documentation on your claim file, we have determined that you do not have capacity for work." He submits that that is an admission on behalf of the second defendant. As against the first defendant he says that it is a statement of opinion of a person who has expertise or specialised knowledge in accordance with s 79 of the Evidence Act 1995 (NSW). Both Mr Burbidge QC and Mr Windsor SC object to its admission into evidence. 2. Mr Windsor takes the point that in addition to joining issue under the applicability of s 79, that, in any event, if it is an admission, it is one made by the scheme agent and not by the employer. 3. I will set out the argument more fully. Mr Campbell presses the tender on the basis of s 69 of the Evidence Act. Quite clearly the letter from the GIO to Mr Donald is a business record and I accept Mr Campbell's submission that the representation it contains was not caught by the provisions of s 69(3), that is to say, the representation was made in the course of the GIO's business as a scheme-agent administering the Workers Compensation Scheme and not for the purpose of conducting, or in connection with, these proceedings or any other proceedings. 4. However, in Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, the High Court held that opinions contained in business records were admissible only if the exceptions to the opinion rule in Pt 3.3 of the Act were properly engaged. This is manifestly not a lay opinion. If it is an admissible opinion, it needs to satisfy the conditions of admissibility contained in s 79 of the Act, dealing with expert opinions. That is to say, it has to be demonstrated that the maker of the opinion has specialised knowledge based on the person's training, study or experience and also that the opinion is wholly and substantially based upon that knowledge. 5. I would infer from the present contents of the document that the maker of the opinion is a person who, no doubt, has some training and experience in handling Workers Compensation claims, however, in my judgment it cannot be said that an opinion that you do not have capacity for work is one which is wholly or substantially based on that kind of specialised knowledge. In reality, the file that the author of the letter reviewed in forming that conclusion would contain medical records, vocational assessments and other disparate documents drawn together from different specialties. In truth, it is an inferential decision‑making process for the purpose of administering Mr Donald's claim, rather than an opinion expressed by the author, wholly and substantially based upon his or her training or experience. One might read very many medical records in the course of one's work without ever becoming a medical expert. 6. I reject the tender against the first defendant. 7. I am also of the view that as against the second defendant, the fact that it is not an expert opinion prima facie makes is inadmissible. 8. Section 81 of the Act provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. However, in my opinion, to the extent to which admissions may be exceptions to the opinion rule, the same reasoning referred to in the Lithgow City Council v Jackson case applies and it needs to be shown that to the extent to which an admission is expressed in an opinion, it is necessary that the conclusion fits in to one of the established exceptions to the opinion rule, which this does not. It may be that otherwise the admission is one made with authority, given that the scheme-agent probably has authority to make statements about the workers compensation entitlements of Mr Donald on behalf of the employer in accordance with s 87 of the Act, but it is unnecessary to go down that path, given what I have said about the opinion rule. 9. This is different from the sort of admission that arises from the payment of compensation benefits where the conduct of the person paying the benefits bespeaks an acceptance of the ingredients of entitlement to that benefit to be assessed as part of the whole body of evidence in the case. 10. I reject the tender of the letter of 13 May 2013. ********** 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: 23 November 2015