Donald v Rail Corporation of New South Wales (No 7) [2015] NSWSC 1934

Supreme Court New South Wales

Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 7) [2015] NSWSC 1934 Hearing dates: 20 – 23; June 2015; 2 – 5; 9 – 10 November 2015 Date of orders: 10 November 2015 Decision date: 10 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: I admit the report of 25 June 2008 as Exhibit 1D23 Catchwords: EVIDENCE – admissibility of medical report – objection to limit use of medical history in report – medical history to stand as a statement against interests where inconsistent with plaintiff's evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 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 Burbidge has tendered a report of Dr Wyatt of 25 June 2008. There are other reports of Dr Wyatt in evidence as Exhibit R. Mr Campbell objects to the report, only on the basis that I should limit the use to which I put the history recorded in the report under s 136 of the Evidence Act 1995 (NSW). That is to say, Mr Campbell says I should not receive the history as evidence of the truth of the matters recorded, and he refers me to statements of the Court of Appeal such as those in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 about the care with which a trial judge should utilise apparently inconsistent histories in medical reports, bearing in mind doctors take histories for purposes different from the purposes of a Court required to find facts. 2. I accept the force of that submission so far as it goes, however, it seems to me, that those considerations go not to the admissibility of the record of the history, but rather to the care with which the evidence should be scrutinised in due course. 3. In my judgment the history recorded in a medical report such as this, to the extent to which it is inconsistent with the account given by the plaintiff, is a statement against interest and to that extent is admissible as an admission. I decline to limit the use to which the material can be put. 4. I admit the report of 25 June 2008 as Exhibit 1D23.