Maddison v Ambulance Service of NSW [1995] NSWCC 2; (1995) 11 NSWCCR 42 (14 February 1995)

[1995] NSWCC 2; (1995) 11 NSWCCR 42 (Matter No. 30867/94)

MADDISON v. AMBULANCE SERVICE OF NSW

Compensation Court of New South Wales: Armitage J

14 February 1995

Proceedings to obtain compensation - Determination of claims - Procedure before hearing - Medical reports not served within prescribed time - Reports tendered - Discretion to admit - Workers Compensation Act 1987, section 135 - Compensation Court Rules 1990, Part 23, rule 8

Evidence - Admissibility - Documentary evidence - Statutory provisions as to statements in documents - Medical reports in proceedings before Compensation Court - Reports not served within prescribed time - Reports tendered - Discretion to admit - Workers Compensation Act 1987, section 135 - Compensation Court Rules 1990, Part 23, rule 8

S.B. Lowe, for the applicant

M.C. Newton, for the respondent (NEM Insurers Guarantee Fund)

J.P. Gleeson, for the respondent (GIO)

Ex tempore

ARMITAGE J: Part 23, rule 8 of the Compensation Court Rules 1990 (the CC Rules) provides in subrule (1) that the rule applies subject to:

"(a) any order made by the Court at any time."

and then makes the requirement in subrule (3) that the report be served 28 days before the hearing.

This, of course, is in the context of section 135 of the Workers Compensation Act 1987, as amended, which in subsection (1) reads:

"A medical report is admissible in evidence in proceedings before the Compensation Court",

and in subsection (2) reads:

"Sub-section (1) is subject to any provision of the rules of the Compensation Court or the regulations relating to the giving of notice of the admission in evidence of the medical report".

It is obvious that Part 23, rule 8 is a provision of the CC Rules to which subsection (2) refers and, therefore, subsection (1) must be read as being subject to Part 23, rule 8.

In Dawson v. Hall (1994) 10 NSWCCR 388, the following situation arose. The plaintiff had been treated by a Dr Polgar. That doctor's report came to the attention of the defendant at the trial only as a result of a subpoena directed to the doctor which elicited production of the report. The defendant cross-examined on the report but the plaintiff objected to the tender of the report by the defendant relying on Part 28, rule 9 of the District Court Rules 1973, because it had not been served 28 days before the hearing.

Handley JA at 392, expressed the view that the report could not have been one which the defendant "intended" to tender 28 days before the date of hearing, because it could not have been aware of the

existence of the report as it had not been within its possession 28 days before the hearing and that consequently Part 28, rule 9(2) could not apply. There does not appear to be a precise equivalent to that subrule in the CC Rules.

However, more relevantly to the present case, his Honour then expressed the view at 392 that even if Part 28, rule 9(2) did apply, so that the defendant was required to serve the report if it intended to tender it at the trial, nevertheless, the discretion to admit the report, despite non-service, should have been exercised. The discretion referred to, I apprehend, is that in Part 28, rule 9(3) where the requirement of service 28 days before the trial operates "Unless the Court otherwise orders", a phrase identical in operation with that in Part 23, rule 8(1)(a) of the CC Rules, viz. "subject to any order made by the Court at any time". See also Part 28, rule 8(1)(a) of the District Court Rules, which imports a discretion identical in terms with Part 23, rule 8(1)(a) of the CC Rules.

The basis upon which Handley JA held that the discretion ought to have been exercised to admit the report, even if the Rules required its service, is expressed at 392, where he said this:

"The case for such an exercise of a discretion was, with respect, overwhelming. The report was not prepared for the purposes of litigation. It was written more than a year before the accident. The defendant did not know of its existence in time to serve it 28 days before the trial (Rule 9(4) [sic]). At that time the report was not part of the evidence the defendant intended to call at the trial. The defendant was not seeking to ambush the plaintiff because the report had already been used extensively in cross-examination and the plaintiff could have led evidence in reply. If there was any ambush it was by the plaintiff's use of the rule to exclude a business record such as this."

Applying that dictum to the present case, the situation seems to me to be as follows.

In July 1994 the respondent, in the interests of the Government Insurance Office, obtained Dr Bodel's reports. It then refrained from serving them until nearly the end of January this year. It served them out of time on the applicant's solicitor who then, within a period of approximately two weeks, and before today's date, re-served them on the solicitors appearing in the interests of the Government Insurance Office.

At the close of the applicant's case, counsel appearing in the interests of the Government Insurance Office by leave, Mr Gleeson, then did not tender Dr Bodel's reports. The applicant or his legal

advisers could not have known until that point that the respondent, in the interests of the Government Insurance Office, did not intend to tender Dr Bodel's reports and, indeed, had every reason to believe that they would be tendered in view of their service upon them.

At that point, counsel appearing by leave for the respondent, in the interests of National Employers Mutual Insurers Guarantee Fund, unsuccessfully attempted to tender Dr Bodel's reports and I rejected that tender for reasons given earlier this morning and the applicant's counsel then attempted to tender Dr Bodel's reports, and for reasons then given, and before I became aware of the decision in Dawson v. Hall, I rejected the tender.

It seems to me, however, on reconsideration of the matter, in light of the reasons of Handley JA in Dawson v. Hall, that the discretion I have to admit the reports is wider than I had thought in that, in that case, though not in the present one, the report concerned had not been served upon the party against whom it was proposed to tender it at all and yet it was held that there was a discretion to admit it under the Rules.

In this case, the respondent, in the interests of the Government Insurance Office, had known of the existence of Dr Bodel's reports since last July. Since last July it has had the opportunity of qualifying another doctor, whether of the same specialty as Dr Bodel or not, to obtain another opinion as to the causation of the applicant's symptoms and, in particular, another opinion as to whether or not "injury", within the sense defined by the Workers Compensation Act 1987, had occurred to the applicant in the course of or arising out of his employment by the respondent during the period of risk. This it desisted from doing, right up until the present day, apparently on the basis that it was content with the reports of Dr Sheehan and Dr Rowe, which were tendered in the interests of the respondent, as represented by Mr Newton, in the interests of NEM Insurers Guarantee Fund.

It is agreed from the bar table that Dr Rowe's reports were not served until 25 October 1994 and Dr Sheehan's until 1 September 1994, and yet Dr Bodel's reports were received by the solicitors for the Government Insurance Office in this case soon after their date, on 27 July 1994, and no attempt was made by those solicitors to qualify another doctor.

In these circumstances I am unconvinced that any real prejudice arises to the Government Insurance Office in its defence of the current proceedings by the admission of two reports in evidence

which it itself caused to be served on the party tendering them and in circumstances where that party only became aware of the existence of those reports, and of the opinions expressed in them, as a result of service of the reports upon them by the solicitors for the Government Insurance Office.

In those circumstances it seems to me ludicrous to suppose that real prejudice has occurred to the Government Insurance Office as a result of admission of the reports and in those circumstances I propose to admit them.

Reports admitted

Solicitors for the applicant: Moroney Rutter & Mantach

Solicitors for the respondent (NEM Insurers Guarantee Fund): N.W. Aussel

Solicitors for the respondent (GIO): Moray & Agnew