Express law No. 37

11 May 2006

Admitting medical evidence in personal injuries cases
from experts that have not been agreed upon or court appointed

A recent decision of Master Harper in the ACT Supreme
Court casts doubt on the validity of section 84 of the Civil
Law (Wrongs) Act 2002 (ACT).

Yani Pappas v Victor Noble

[2006] ACTSC 39 (Harper M, 27 April 2006)

In an action for damages for personal injuries, Master
Harper allowed the treatment notes of a plaintiff's
general practitioner to be admitted into evidence. Section
84 of the Civil Law (Wrongs) Act 2002 (ACT), which
would have prevented the evidence from being admitted,
was held to be inconsistent with the relevance provision
in section 56 of the Evidence Act 1995 (Cth). The
restriction therefore had no effect by virtue of section
28 of the Australian Capital Territory (Self-Government)
Act 1988 (Cth).

Master Harper also considered it arguable that the restriction
was contrary to the right to a fair trial contained in
section 21(1) of the Human Rights Act 2004 (ACT).
He did not determine the issue finally given his decision
on the inconsistency point.

Background

The plaintiff sought to tender a copy of a general practitioner's
treatment notes, which were expected to contain matters
of both fact and opinion. The relevance of the treatment
notes was not in question.

The defendant objected on the grounds that it was contrary
to section 84 of the Civil Law (Wrongs) Act, which provides:

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).

Findings

The plaintiff could admit the expert evidence.

Section 84 of the Civil Law (Wrongs) Act was held to be
inconsistent with section 56 of the Evidence Act 1995 (Cth),
which states:

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

Section 55 of the Evidence Act 1995 (Cth) provides:

(1) The evidence that is relevant in a proceeding is
evidence that, if it were accepted, could rationally
affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the
proceeding.

Given the treatment notes were regarded as relevant, the
Commonwealth law and Territory law operated inconsistently.
This inconsistency was resolved by reference to section
28 of the Australian Capital Territory (Self-Government)
Act 1988 (Cth). This section provides:

(1) A provision on 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.

Subsection (2) defines 'law' to include a
Commonwealth law and an 'enactment' is defined
in section 3 to mean an act of the ACT Legislative Assembly.
Master Harper had no hesitation in reaching the conclusion
that the subsection in question could not operate concurrently
with the provision of the Commonwealth law.

Master Harper also considered a further argument that
the restriction operating by virtue of section 84 might
fall foul of the Human Rights Act 2004 (ACT). Section
21 of that Act deals with the right to a 'fair hearing',
providing:

(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 an public hearing.

Master Harper stated:

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.

However, having formed the conclusion that the evidence
was admissible, Master Harper considered it unnecessary
to make a declaration of incompatibility under the Human
Rights Act.

Implications

The decision affects any proceeding in which a party seeks
to adduce expert evidence relating to a medical issue.
Section 82 of the Civil Law (Wrongs) Act defines a 'a
medical issue' as an issue relating to:

(a) the medical condition or prospects of rehabilitation
of a person; or

(b) the cognitive, functional or vocational capacity
of a person; or

(c) the question whether particular medical treatment
amounts to professional negligence.

Section 84 allows a party to rely on such evidence only
if it comes from an expert that is either agreed to by
both parties or is appointed by the court. The decision
has cast doubt on whether this restriction can apply. Master
Harper's decision suggests that parties may decide
which, and how many, experts to rely upon, subject to the
issue of the relevance of that material.

By rendering section 84 ineffectual, the decision threatens
to undermine the progressive aims of the section. The section
was introduced in response to the recommendations of the
national Review of the Law of Negligence Report 2002 (The
Ipp Review). The goals of the amendment were summarised
in the explanatory memorandum:

This new regime should remove some of the adversarial
process, as it will provide for medical experts to assist
the court rather than their respective parties. This
regime will also reduce costs in litigation, as parties
will share the cost of one medical expert rather than
having at least one medical expert for each party.

Of course, this will be of particular relevance to the
Territory's scheme given the operation of the Commonwealth
Evidence Act in the Territory courts. The states have all
enacted state specific versions of the Evidence Act.

Other provisions of the Civil Law (Wrongs) Act restrict
the admission of evidence. These sections include:

  • section 131(1), which restricts the admission into
    evidence of any statement or admission made in connection
    with the making or acceptance of an offer to make amends
    in relation to an action for defamation. However this
    section is consistent with section 131 of the Evidence
    Act which restricts the admission into evidence of any
    communication made, or document prepared, in connection
    with an attempt to negotiate a settlement of the dispute.
  • section 139N(2), which provides that an incriminating
    answer, document or thing that is produced in accordance
    with section 139N(1) in a civil action for defamation
    is not admissible in proceedings for criminal defamation.
    Although this section would seem to restrict the admission
    of relevant evidence, it is consistent with the privilege
    against self-incrimination contained in section 128 of
    the Evidence Act.
  • section 199(4), which creates a privilege that covers
    any document prepared for, or in the course of, a neutral
    evaluation session. However, this section is also consistent
    with protection offered by section 131 of the Evidence
    Act concerning evidence of settlement negotiations.

Although these sections restrict the admissibility of
evidence, they are nevertheless capable of operating concurrently
with the Evidence Act, unlike, as Master Harper found,
section 84 of the Civil Law (Wrongs) Act, which restricts
the admission of evidence that the Evidence Act would have
held to be admissible.

The decision raises a question of the impact on the operation
of the Supreme Court Rules 1937 (ACT) and its regime for
service of material which frequently has the potential
to restrict the admission of otherwise relevant material.
However, section 11 the Evidence Act provides:

(1) The power of a court to control the conduct of a
proceeding is not affected by this Act, except
so far as this Act provides otherwise expressly
or by necessary intendment.

Those provisions of the Supreme Court Rules are unlikely
to fall foul of the Evidence Act because it does not render
something inadmissible in the same way that the offending
section 84 does, but merely provides a regime to enable
the parties and the Court to deal with the material in
a fair manner.

Regarding the Human Rights Act, it is unlikely that a
decision based on Master Harper's preliminary comments
regarding the potential incompatibility of the section
with the legislatively entrenched right to a fair hearing
would be sustainable. Cases in other jurisdictions have
held that it is only in exceptional circumstances that
the unavailability of a witness could potentially render
a criminal trial unfair: see for example, R v
Scott [1998] NSWCA 60485/98 (Unreported, Grove, Newman
and Levine JJ, 8 December 1998). This type of argument
would be even less likely to succeed in the context of
a civil trial where the consequences to either party are
less severe.

As an aside, section 86(2) of the Civil Law (Wrongs) Act
permits the court to appoint additional experts where a
single expert is not qualified to give an opinion on all
the medical issues or where the court considers the interests
of justice otherwise require it. Given this provision,
and the reference to the broad test of the 'interests
of justice', it would seem that parties have to opportunity
to avoid the restrictions of section 84 without reference
to the inconsistency created by sections 55 and 56 and
the Evidence Act.

Text of the decision is available at: http://www.courts.act.gov.au/supreme/judgments/pappas.htm

For further information please contact:

Marianne Peterswald
Senior Lawyer
T 02 6253 7260 F 02 6253 7383
marianne.peterswald@ags.gov.au

Important: The material in Express law is provided
to clients as an early, interim view for general information
only, and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.