Long v IS Industry Fund Pty Ltd (No 2) [2020] NSWSC 1541

Long v IS Industry Fund Pty Ltd (No 2) [2020] NSWSC 1541

Dr Sharman's reports were admissible because a qualified medical opinion that Mr Long was unable to perform any remunerative work and had no prospect of returning to the workforce as at a later date could rationally affect the Court's assessment of whether he satisfied the TPD definition at the earlier relevant date. The defendants' criticisms about timing, intervening events, assumptions, medical material and the formulation of the TPD question were matters for evidence, cross-examination, weight and submissions at the second-stage hearing, not grounds for exclusion. The defendants did not identify sufficient unfair prejudice, misleading or confusing effect to justify exclusion under s 135.

Jurisdiction
Australia
Judgment Date
02 November 2020
Procedural Posture
Application Concerning Payment of a TPD Benefit Under an Insurance Policy / Ruling on the Papers Under S 192 a of the Evidence Act 1995 (nsw) on Admissibility of Expert Reports for the Final Second Stage Hearing
Outcome
The defendants' objection was rejected and Dr Sharman's reports will be admitted into evidence.
Legal Topics
['admissibility of Expert Medical Reports' 'relevance' 's 135 Discretion' 'tpd Benefit Claim' 'separate Question' 'second Stage Hearing']
['evidence' 'civil Procedure' 'insurance'] ['admissibility of Expert Medical Reports' 'relevance' 's 135 Discretion' 'tpd Benefit Claim' 'separate Question' 'second Stage Hearing']

Case Brief

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Procedural Posture

Application Concerning Payment of a TPD Benefit Under an Insurance Policy / Ruling on the Papers Under S 192 a of the Evidence Act 1995 (nsw) on Admissibility of Expert Reports for the Final Second Stage Hearing

Legal Issues

  1. 1 ["Whether Dr Peter Sharman's reports dated 22 February 2018 and 10 September 2018 would be admissible at the final hearing pursuant to s 192A of the Evidence Act 1995 (NSW)." 'Whether the reports were irrelevant because they were prepared years after the relevant date for assessing total and permanent disablement and addressed an allegedly incomplete or erroneous TPD definition.' 'Whether the reports should be rejected under s 135 of the Evidence Act 1995 (NSW) because their probative value was substantially outweighed by unfair prejudice, or by the danger that they might be misleading or confusing.']

Ratio Decidendi

Dr Sharman's reports were admissible because a qualified medical opinion that Mr Long was unable to perform any remunerative work and had no prospect of returning to the workforce as at a later date could rationally affect the Court's assessment of whether he satisfied the TPD definition at the earlier relevant date. The defendants' criticisms about timing, intervening events, assumptions, medical material and the formulation of the TPD question were matters for evidence, cross-examination, weight and submissions at the second-stage hearing, not grounds for exclusion. The defendants did not identify sufficient unfair prejudice, misleading or confusing effect to justify exclusion under s 135.

Court Disposition

The defendants' objection was rejected and Dr Sharman's reports will be admitted into evidence.

Orders

  • ["Dr Sharman's reports dated 22 February 2018 and 10 September 2018 will be admitted into evidence."]