Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd [2013] NSWSC 1926

Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd [2013] NSWSC 1926

Leave should be granted to admit Dr Ellis' reports under r 31.26(5) because, although the general purpose of the joint expert report procedure favoured reliance on the conclave evidence, excluding Dr Ellis' reports at this stage would substantially deprive the plaintiff of the forensic opportunity to present the case he wished to make. Dr Ellis was physically unable to attend court for medical reasons, and, given the age and stage of the proceedings and the adjournment that would be required, it was not reasonably practicable to overcome that unavailability. The reports were therefore admitted, subject to limitations that histories were not evidence of their truth and whole person...

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Procedural and Other Ruling in Personal Injury Proceedings Concerning Admissibility of Medical Reports / Ruling During Hearing on Objections to Tender of Medical Reports
Outcome
The reports of Dr Ellis were admitted, with limitations on the use of histories and whole person impairment evidence.
Legal Topics
['admissibility of Medical Reports' 'limiting Use of Evidence Under S 136 Evidence Act 1995 (nsw)' 'expert Evidence and Joint Reports Under R 31.26(5) Uniform Civil Procedure Rules 2005 (nsw)' 'hearsay Exception Where Witness Unavailable Under S 63 Evidence Act 1995 (nsw)' 'permanent Impairment Assessments']
['evidence' 'civil Procedure' 'personal Injury'] ['admissibility of Medical Reports' 'limiting Use of Evidence Under S 136 Evidence Act 1995 (nsw)' 'expert Evidence and Joint Reports Under R 31.26(5) Uniform Civil Procedure Rules 2005 (nsw)' 'hearsay Exception Where Witness Unavailable Under S 63 Evidence Act 1995 (nsw)' 'permanent Impairment Assessments']

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Procedural Posture

Procedural and Other Ruling in Personal Injury Proceedings Concerning Admissibility of Medical Reports / Ruling During Hearing on Objections to Tender of Medical Reports

Legal Issues

  1. 1 ['Whether the histories recorded in medical reports should be limited under s 136 Evidence Act 1995 (NSW), excluding the ordinary operation of s 60.' 'Whether assessments of permanent impairment made under WorkCover Guidelines or Motor Accident Permanent Assessment Guidelines should be admitted as evidence against the first defendant whose liability was to be quantified under the Civil Liability Act 2002 (NSW).' 'Whether leave should be granted under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW) to adduce reports of Dr Max Ellis despite a joint report from orthopaedic surgeons dealing with the issues.' "Whether Dr Ellis' reports should be admitted despite notices requiring him for cross-examination, having regard to s 63 Evidence Act 1995 (NSW) and his medical unavailability."]

Ratio Decidendi

Leave should be granted to admit Dr Ellis' reports under r 31.26(5) because, although the general purpose of the joint expert report procedure favoured reliance on the conclave evidence, excluding Dr Ellis' reports at this stage would substantially deprive the plaintiff of the forensic opportunity to present the case he wished to make. Dr Ellis was physically unable to attend court for medical reasons, and, given the age and stage of the proceedings and the adjournment that would be required, it was not reasonably practicable to overcome that unavailability. The reports were therefore admitted, subject to limitations that histories were not evidence of their truth and whole person...

Court Disposition

The reports of Dr Ellis were admitted, with limitations on the use of histories and whole person impairment evidence.

Orders

  • ["Leave granted for the admission of Dr Ellis' reports under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW)." 'The reports of Dr Ellis are admitted.' 'The evidence as to whole person impairment contained in the reports will not be evidence against the first defendant.' 'The histories contained in the reports...