Pappas v Noble [2006] ACTSC 39 (27 April 2006)

Last Updated: 22 May 2006

YANI PAPPAS v VICTOR NOBLE [2006] ACTSC 39 (27 April 2006)

EX TEMPORE JUDGMENT

EVIDENCE - admissibility - assessment of damages for personal injury - clinical notes of treating medical practitioner - whether rendered inadmissible by Territory statute - whether Territory statute inconsistent with Commonwealth Act - Territory statute held ineffective to extent of inconsistency - notes admissible.

CIVIL AND POLITICAL RIGHTS - human rights - right to fair hearing - whether statutory provision rendering relevant evidence inadmissible compatible with right to fair hearing.

STATUTES - interpretation - Australian Capital Territory - whether provision of Territory statute inconsistent with Commonwealth Act - admissibility of evidence in personal injury action.

Civil Law (Wrongs) Act 2002, ss 82, 84

Evidence Act 1995 (Cth), ss 4, 56

Australian Capital Territory (Self-Government) Act 1988 (Cth), s28

Human Rights Act 2004, ss21, 30

No. SC 148 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 27 April 2006

IN THE SUPREME COURT OF THE )

) No. SC 148 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: YANI PAPPAS

Plaintiff

AND: VICTOR NOBLE

Defendant

ORDER

Judge: Master Harper

Date: 27 April 2006

Place: Canberra

THE COURT ORDERS THAT:

The clinical notes of the plaintiff's general practitioner be admitted into evidence.

1. In this action for damages for personal injury counsel for the plaintiff tenders a copy of the notes of the plaintiff's treating general practitioner. I have not read through them or looked at them in any detail, but it is common ground that although they may largely consist of recording of factual matters, inevitably they will contain some expressions of opinion by the general practitioner.

2. In the circumstances counsel for the defendant formally objects to the tender by reason of section 84 of the Civil Law (Wrongs) Act 2002. That section is in the following terms:

Limitation on expert medical evidence.

Expert medical evidence may be given in a proceeding in a court based on a claim only by -

(a) an expert appointed by the parties under section 85 or section 89(1) (an agreed expert); or

(b) an expert appointed by the court under section 86 or section 89(2) (an appointed expert).

3. A claim is defined to mean a claim, however described, for damages based on a liability for personal injury. Evidence is defined to mean evidence given orally or in writing. Expert medical evidence is defined to mean opinion evidence on a medical issue given by an expert in relation to the issue.

4. Medical issue is defined as an issue which relates to (a) the medical condition or prospects of rehabilitation of a person or (b) the cognitive, functional or vocational capacity of a person. Those definitions are found in section 82 of the Act: I have paraphrased them by deleting portions which are not relevant to an action of the present kind.

5. The provisions are contained in Chapter 6 of the Civil Law (Wrongs) Act which establishes a regime, the intention of which appears to be to permit the giving of expert medical evidence by a single expert either agreed between the parties or appointed by the court, and to make the opinion evidence of any other medical expert inadmissible. This would mean that the opinion evidence of a treating doctor, such as the general practitioner in this case, would be inadmissible.

6. There appear to me to be two difficulties with the application of section 84 and the achieving by the legislation of its apparent object. The first relates to an inconsistency between section 84 and the provisions of the Commonwealth Evidence Act 1995.

7. That Act provides in section 4 that the Act applies in relation to all proceedings in a Federal court or an ACT court, and ACT court is defined in the Dictionary so as to include the Supreme Court of the Australian Capital Territory. Thus it is clear that the Commonwealth Evidence Act applies to all proceedings in this court, including the present action.

8. In relation to admissibility of evidence, the Evidence Act 1995 provides in section 56 as follows:

Relevant Evidence to be Admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

9. There is no suggestion that any opinions expressed by the general practitioner in the tendered notes would be irrelevant to the issues to be determined in the action, and I take it to be conceded on both sides that such evidence is relevant and would be admissible were it not for section 84 of the Civil Law (Wrongs) Act.

10. In these circumstances there is an inconsistency between those provisions in the two Acts. In relation to inconsistency, section 28 of the Australian Capital Territory (Self-Government) Act 1988, an Act of the Commonwealth Parliament which may be described as operating in a similar way to a state constitution in relation to the Australian Capital Territory, relevantly provides as follows:

Inconsistency with other laws

(1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

11. Law is then defined so as to include a Commonwealth Act, and enactment is defined elsewhere in the Self-Government Act to mean a Territory Act such as the Civil Law (Wrongs) Act.

12. It does not seem to me that section 84 is capable of operating concurrently with section 56 of the Commonwealth Evidence Act 1995. It would be capable of operating concurrently if the word "only" were deleted from it. Whether one reads section 84 by deleting the word "only" or whether one simply treats it as having no effect in relation to the present tender, one arrives at the same outcome, that the general practitioner's notes are admissible.

13. I should make brief mention in case it might be thought that I am in error in those conclusions, of another argument which might have been raised without the necessity to refer to Commonwealth legislation. The Human Rights Act (2004) of this Territory provides in section 21(1):

Fair trial

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

14. There seems to me a respectable argument that a provision in another Territory Act which makes inadmissible evidence which would otherwise be relevant and admissible and which might be determinative of issues in the trial of a civil action, might well be categorised as inconsistent with the right to a decision after a fair hearing. That is to say, a plaintiff who is not permitted to call evidence from a treating medical practitioner of that practitioner's opinion, so that the Court is limited in relation to medical opinion as to diagnosis and prognosis to that of a single expert, may well complain that he or she has not had a fair trial.

15. Section 30 of the Human Rights Act 2004 provides that in working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred. Working out the meaning of a Territory law is defined in subsection 3 to mean:

(a) resolving an ambiguous or obscure provision of the law; or

(b) confirming or displacing the apparent meaning of the law; or

(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the law in any other case.

16. Applying that section to section 84, it seems to me that section 84 cannot be described as ambiguous or obscure, nor as a provision having an apparent meaning capable of being displaced by interpretation. The apparent meaning does not in itself lead to a result that is manifestly absurd or is unreasonable, simply to a result which is inconsistent with a right established by the Human Rights Act.

17. In the circumstances it does not seem to me that section 84 is capable of being interpreted in such a way that it is consistent with the right to a fair trial under section 21 of the Human Rights Act. The court is given power to make what is called in the Act a declaration of incompatibility. This is not a case where it is appropriate for the court to go as far as that, involving as it does notice to the Attorney-General and to the Human Rights Commissioner, and the provision of an opportunity to the holders of both of those offices to intervene in the proceedings.

18. Having regard to the decision at which I have arrived in relation to the inconsistency between section 84 of the Civil Law (Wrongs) Act and section 56 of the Commonwealth Evidence Act 1995, it seems to me that that is sufficient to decide the objection and that it would not be appropriate to proceed further with the procedure available under the Human Rights Act. For those reasons the objection is overruled. I admit the general practitioner's notes into evidence. They will be Exhibit B.

I certify that the preceding eighteen (18) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 3 May 2006

Counsel for the plaintiff: Ms L Walker

Solicitors for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr MA McDonogh

Solicitors for the defendant: Sparke Helmore

Date of hearing: 27 April 2006

Date of judgment: 27 April 2006