Nicol v Whiteoak & Anor [2011] NSWSC 1467 (29 November 2011)

Last Updated: 13 December 2011

Supreme Court New South Wales

Case Title:	Nicol v Whiteoak & Anor
Medium Neutral Citation:	[2011] NSWSC 1467
Hearing Date(s):	28 & 29 November 2011
Decision Date:	29 November 2011
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	Decline to grant leave for the admission of MFI 3, being the whole of the St George Hospital file relating to the plaintiff, into evidence
Catchwords:	PRACTICE AND PROCEDURE - evidence - admission of hospital reports
Legislation Cited:	Evidence Act 1995 (NSW) - s 135 Uniform Civil Procedure Rules 2005 (NSW) - 31.28
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	Linda Nicol (Plaintiff) Scott Whiteoak as executor of Estate of Steven Whiteoak (First Defendant) Mohamed Mogharbel (Second Defendant)
Representation
- Counsel:	Counsel: R.I. Goodridge (Plaintiff) I.M. Newbrun (First Defendant) In person (Second Defendant)
- Solicitors:	Solicitors: Firths (Plaintiff) Chris Lee Lawyer (First Defendant) In person (Second Defendant)
File number(s):	2009/297817
Publication Restriction:

JUDGMENT

Ex tempore on Admissibility of MFI 3 (T128)

1. I propose to reject MFI 3, which comprises the whole of the St George Hospital file relating to the plaintiff, on the basis that I am satisfied that it is a hospital report within the meaning of Uniform Civil Procedure Rule 31.28. I am not satisfied that the circumstances are exceptional under UCPR 31.28(4) and, accordingly, I decline to give leave for the admission of MFI 3.

2. It is said by the first defendant that there was an agreement between the parties that objection would not be taken to experts' reports. Be that as it may, this document MFI 3, constitutes a hospital report and not an expert's report, and I am told by Mr Goodridge that it was not served until yesterday. Accordingly, it was not served in compliance with the rules.

3. Had I been inclined to grant leave under UCPR 31.28(4) on the basis that there were exceptional circumstances I would, nonetheless, have declined to admit MFI 3 pursuant to s 135 of the Evidence Act 1995 (NSW).

4. The material on which Mr Newbrun relies in MFI 3 principally relates to the plaintiff's alleged drug taking and alcohol use. In particular, there is a note recording "Previous Medical History, "Heavy drinker and smoker, heroin user".

5. The plaintiff has already given evidence. She admitted that she used heroin as a teenager but denies that she has used it since.

6. On the voir dire Mr Goodridge, on behalf of the plaintiff, called two witnesses: one a close friend and housemate of the plaintiff, before and for some period subsequent to the accident, who deposed that she had never seen any indication whatsoever that the plaintiff was a heroin user. The plaintiff's daughter Rachel also gave evidence to a similar effect.

7. I have reviewed the matters referred to in MFI 3 to see whether there is any further matter germane to that drug use, apart from the previous medical history that is noted.

8. There are some references in MFI 3 to a possibility that the withdrawal symptoms from which the plaintiff appeared to be suffering during her time in St George Hospital are related to heroin use or to alcohol use. However, no determination was made by the doctor that the withdrawal symptoms did relate to heroin use.

9. I note also that there is an entry on 19 September 2006 that the plaintiff was calling out that she needs more heroin. There is a note that the doctor asked her whether she used heroin and she replied that she uses it daily. There is also a note that there are puncture marks observed in her right cubital fossa, but there is a question mark "? new/old". 19 September 2006 was a mere three days after the plaintiff suffered a very serious head injury, which had her remain in the intensive care unit at the St George Hospital for approximately two weeks.

10. For this reason, I do not consider that any reliance can properly be placed on that evidence as being an admission. Furthermore it is, obviously, highly prejudicial and, if established, could go to the matters which Mr Newbrun identified, namely, whether the plaintiff is a risk-taker and, furthermore, whether she was able to hold down a regular job and whether I should accept her evidence that she proposed to remain in the same employment henceforth.

11. There are further notes in MFI 3 which relate to the hypothesis that the plaintiff is dependent on heroin, and the effect morphine, which was given to her for pain relief, would have on any withdrawal symptoms.

12. In light of what I have earlier said I do not think that any of this material can properly establish that the plaintiff was in fact a heroin user. Because of its tendency to create unfair prejudice to the plaintiff, to be misleading or confusing and to cause or result in an undue waste of time and cast the onus on the plaintiff to disprove the propositions that seem to emerge from MFI 3, I would, had I otherwise been inclined to admit MFI 3, have refused to admit it in the exercise of my discretion under s 135 of the Evidence Act.

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