Seary v White (No 2) [2008] NSWDC 18

Reported Decision : 6 DCLR (NSW) 289

New South Wales District Court

CITATION: Seary v White (No 2) [2008] NSWDC 18

HEARING DATE(S): 22 June 2007

JUDGMENT DATE: 8 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: The statements of reasons of the MAS assessors were not admitted into evidence

CATCHWORDS: EVIDENCE - Admissibility of the certificates of MAS assessors and their statements of reasons - expertise - the certificates were admitted - the statements of reasons were excluded because their probative value was outweighed by the unfair prejudice that their admission would visit upon the defendant due to the inability to cross-examine the experts

LEGISLATION CITED: Evidence Act 1995 (NSW): s 79, s 135 Motor Accidents Compensation Act 1999: s 61(9)

CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85].

PARTIES: Elizabeth Anne Seary (Plaintiff) Glen White (Defendant)

FILE NUMBER(S): 4757/06

COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff) Mr K Rewell SC (Defendant:)

SOLICITORS: Wyatt Attorneys (Plaintiff) TL Lawyers (Defendant:)

JUDGMENT Interlocutory judgment on an application to admit the reasons of MAS assessors into evidence.

HIS HONOUR: These are my reasons:

(1) Ms Seary was injured in a motor accident on 13 November 2002 and commenced proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. She alleged that as a result of the accident she sustained, in particular, an injury to the brain; orthopaedic injuries to her neck and back; and a secondary psychological condition.

(2) The dispute came to trial commencing Monday, 18 June 2007. During the course of the first day of the hearing a bundle of medical reports was tendered on behalf of the plaintiff (exhibit A). I excluded, pending argument, certain documents from the tender, namely certificates and statements of reasons issued by two medical assessors from the Medical Assessment Service (MAS) of the Motor Accidents Authority of New South Wales, issued under the Motor Accidents Compensation Act 1999 (the MAC Act 1999).

(3) Specifically the documents were:

(a) Dr Lorraine Jones (at pages 410-422 of the tender bundle) - Certificate (as to whether an injury has stabilised) dated 15 September 2005. - Certificate (as to the degree of permanent impairment) dated 15 September 2005. - Statement of reasons dated 15 September 2005.

b) Dr Lana Kossoff (at pages 429-439 of the tender bundle) - Certificate (as to whether an injury has stabilised) dated 25 November 2005. - Statement of reasons dated 25 November 2005.

(4) The argument as to the admissibility of these documents took place on the fourth afternoon of the trial, Thursday, 21 June 2007, at a point in the hearing when most of the lay evidence had been given, much of the medical evidence had been led, and the issues for determination in the dispute had largely emerged.

(5) The tender of the documents was pressed on behalf of the plaintiff as being admissible evidence. It was not disputed that the certificates at pages 421, 422 and 439 were admissible, but the defendant opposed the tender of the statements of reasons by each MAS assessor.

(6) The plaintiff submitted firstly that each statement of reasons formed part of the certificates to which they relate and are admissible on that basis: s 61(9) of the MAC Act 1999. The defendant argued that the statement of reasons did not form part of the certificate. In support of that argument, Mr Rewell, for the defendant, pointed to the wording of the certificates and to the wording of the legislation, and pointed out the limited relevance of the certificates. The defence submitted that the reasons are separate and distinct from the certificates.

(7) In my view, however, the wording of s 61(9) is plain and unambiguous and the reasons for any finding of a MAS assessor as to any matter properly certified in the certificate form part of that certificate.

(8) The statement of reasons of each assessor was also tendered as expert evidence. In the case of Dr Jones, the defence submitted that the plaintiff had failed to establish that she possessed the necessary specialised knowledge required to satisfy the requirements of s 79 of the Evidence Act 1995 (NSW). It was argued that her qualifications and experience were not set out in the documents, and it is not possible, therefore, to assess her knowledge or experience, or to enable the accuracy or reliability of her reasons to be tested: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]. In particular, there was no evidence as to any specific expertise in the area of brain injury, an issue central to this case.

(9) The evidence as to the specialised knowledge on the part of Dr Jones derives from the fact that she is a doctor and an accredited MAS assessor. The plaintiff also submitted that her expertise might be inferred from the reasoning process set out in her reasons. There can be no doubt that Dr Jones has medical expertise. The question for my determination is whether that expertise is sufficient for her to express an admissible opinion on the issues critical to this case, and in the case of her certificates, the degree of whole person impairment (WPI) suffered by Ms Seary in connection with the injuries to her head, neck and left arm.

(10) In my view there can be no doubt as to the expertise of Dr Jones to express an opinion on those matters. That is her role. Her qualifications as a doctor and as a MAS assessor establish the requisite specialised knowledge to express those opinions.

(11) The issue of threshold admissibility of an opinion turns on whether the person is an expert. Thereafter, the issue becomes "how expert is the expert", and questions arise as to the exercise of discretion, or, the weight to be given to the opinion. In my view, as a threshold determination, a person with the usual medical qualifications has the requisite specialised knowledge to express an opinion on head injuries and brain damage in the way Dr Jones has in her reasons. The probative value of that opinion is another matter. But as an opinion it meets the requisite standard of evidentiary reliability and relevance, because it serves the purpose of assisting the trier of fact, in an area of specialised knowledge, to form a sound judgment that he or she would otherwise be incapable of forming.

(12) There is no objection to the expertise of Dr Kossoff.

(13) The next basis of objection proffered by Mr Rewell related to the other limbs of s 79 of the Evidence Act 1995 (NSW), as explained in Makita v Sprowles, namely the absence of adequate evidence that the opinions formed by the MAS assessors were based on their specialised knowledge, and an adequate expression of the reasoning process by which their opinions were reached. I disagree. In my view, the reasons provided make it sufficiently clear what expertise was brought to bear in forming the opinions. Those opinions were appropriately based on underlying facts or assumptions that were sufficiently set out, and adequately set out the reasoning process by which the opinions were formed so as to be capable of being tested.

(14) For all these reasons the disputed statements of reasons of the two MAS assessors are admissible.

(15) I turn then to the question of whether I should, in the exercises of my discretion, exclude the statements of reasons: s 135 of the Evidence Act 1995 (NSW).

(16) In my view the probative value of the MAS assessors' statements of reasons is outweighed by the unfair prejudice that their admission would visit upon the defendant.

(17) As to their probative value, it is my view that it is minimal having regard to: (a) The sort of considerations discussed above as to the depth and breadth of the expertise of the MAS assessors in the areas of specialty relevant to the medical issues in this case. (b) The fact that there is other, better evidence on the issues that has been tendered or will be tendered. (c) The fact that the opinions of the MAS assessors are based on material which is to some extent now outdated, and as to which the other experts are further and better informed.

(18) As to prejudice, I would certainly not be prepared to entertain the admission of the statements of reasons in the absence of the opportunity for the doctors to be cross-examined.

(19) I therefore decline to admit into evidence the statements of reasons of the MAS assessors.

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