Kim Fisher v Sandara Rotheraine

[2009] NSWDC 269

CITATION:	Kim Fisher v Sandara Rotheraine [2009] NSWDC 269
JUDGMENT DATE:	31 August 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence is admissible
CATCHWORDS:	CIVIL LAW - evidence - admissibility of medical report - whether assumptions in report need to be established to civil standard - are doctor's examinations and observations sufficient
LEGISLATION CITED:	Evidence Act 1995 s 76
CASES CITED:	Rhoden v Wingate [2002] NSWCA 165
PARTIES:	Kim Fisher Sandara Rotheraine
FILE NUMBER(S):	2662/05
COUNSEL:	Ms Welsh Mr B Kelleher
SOLICITORS:	Brydens Compensation Lawyers Hunt & Hunt

JUDGMENT
1. Ms Welsh, who appears for the plaintiff, has tendered a medical report as part of her case. It is a report of Dr Max Ellis, dated 8 April 2009. It contains, on the last page, this assertion: “In the accident, her right knee suffered ligamentous and cartilaginous injury.” Based upon that diagnosis, the author, Dr Ellis, expressed the opinion that the plaintiff required an MRI examination and arthroscopy, and provided an estimate of the cost of such investigations, which was $6,000.

2. Mr Kelleher, who appears for the defendant, objects to the passage which I quoted. His objection is that that passage breaches the opinion rule which is contained in s 76 of the Evidence Act 1995.

3. Ms Welsh relies upon the exception to the opinion rule provided by s 79, which is that a person with specialised knowledge based upon the person’s training, study or experience may express an opinion about a topic.

4. Mr Kelleher’s objection is that although Dr Ellis has specialised knowledge based upon training, study or experience, the doctor has not expressed in the report any basis upon which the diagnosis of right knee ligamentous and cartilaginous injury could be based. Mr Kelleher points to passages in the report, and in earlier reports, which record Dr Ellis examining Ms Fisher’s right knee and noting, for example, swelling and restricted movements. In particular, the doctor noted in examinations that no internal derangement could be demonstrated.

5. Ms Welsh argues that a factual basis for the opinion expressed does not have to be in terms of, for example, the results of radiological examinations. Such an opinion may be informed by an examination of a patient and observations.

6. Mr Kelleher referred me to the judgment of the Court of Appeal in Rhoden v Wingate [2002] NSWCA 165, in particular the judgment of Heydon JA, as his Honour then was. His Honour said at [86]:

“ When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. ”

7. In my opinion, the examination and observations by an expert surgeon of a patient is sufficient to amount to evidence which, if accepted, is capable of establishing the kind of diagnosis which the doctor offered in this case. The weight which one might put on that diagnosis is, of course, another matter, and one which will, no doubt, be the subject of submissions.

8. However, I do regard for those reasons the evidence as admissible and I propose to admit it.

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