Emery v Coal Mines Insurance Pty Limited (No 1)

The plaintiff in these proceedings alleges that on 24 November 2013, whilst employed by MMG Drill and Blast Pty Limited (MMG) in the capacity of a drill operator, he was injured in the course of manipulating a drill bit and suffered (inter alia) an injury to his right wrist. MMG was placed in liquidation on 6 June 2015 and it is the plaintiff's case that the defendant had entered into a contract of insurance with MMG which covered the liability from which the plaintiff's cause of action is said to arise. The plaintiff sues the defendant pursuant to the provisions of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

A series of objections have been taken to the tender of a number of expert reports (or parts of those reports) which are sought to be relied upon by the plaintiff in the proceedings. This judgment deals with the admissibility of that evidence.

It is appropriate to commence by setting out a number of provisions of the Evidence Act 1995 (NSW) (the Act) which bear upon the resolution of the present issues.

To begin with, s 76 states the opinion rule which is in the following terms:

Section 79 of the Act creates an exception to the opinion rule in respect of opinions based on specialised knowledge and is in the following terms:

Section 80 of the Act is in the following terms:

Finally, s 135 of the Act is in the following terms:

In Dasreef Pty Limited v Hawchar [1] the High Court formulated a number of principles governing the admissibility of expert evidence pursuant to s 79, including the following:

In light of some of the objections taken in the present case, it is necessary to emphasise the necessity for the expert to explain how his or her field of specialised knowledge applies to the facts, so as to produce the opinion. There must be an exposition, by the expert, of the reasoning process which has been adopted. In other words, the expert must explain how it is that the relevant opinion was formed. Courts cannot be expected to act on opinions, the basis of which is unexplained. [7]

Any expert report should be in a form that is conducive to readily apparent satisfaction about compliance with the statutory provisions, and the principles set out above. [8] This requires that any report explain:

Finally, the truth of the assumptions upon which an expert opinion is based need not be established as a condition of admissibility at the time when the question of admissibility is being considered. The ultimate accuracy, and the evidentiary status, of facts addressed in the opinion are not preconditions to admissibility. [10] Whether the facts upon which an opinion is based are established as true is a question that goes to the weight to be attributed to the opinion which is expressed, and not to the issue of admissibility. [11]

With all of these principles in mind, I now address the individual objections.

Dr Hopcroft, a general surgeon, examined the plaintiff for medico-legal purposes and furnished four reports, dated:

It was agreed between the parties that the histories recorded by Dr Hopcroft in his various reports would be limited pursuant to s 136 of the Act as evidence of the history provided, as opposed to evidence of the facts asserted. [12]

Objection was taken to the following passages of Dr Hopcroft’s report of 15 November 2017: [13]

Senior counsel for the defendant submitted that the reasoning process adopted by Dr Hopcroft which led him to the view that the work capacity of the plaintiff was limited, had not been exposed.

Senior counsel for the plaintiff submitted that the reasoning process was evident when the report was read as a whole. Senior counsel also relied on the paragraphs preceding those which were the subject of the present objection, and which are in the following terms: [14]

In my view, the passages to which objection is taken are admissible. Reports of this kind are to be read as a whole and not in a piecemeal fashion. It is evident that Dr Hopcroft’s opinions as to the plaintiff’s capacity for work are underpinned and explained by his diagnosis.

The next objection was to the following further passage of the same report: [15]

Senior counsel for the defendant submitted that this passage of the report amounted to nothing more than a “guesstimate”, absent any accompanying explanation as to the basis upon which Dr Hopcroft arrived at that percentage of loss. It was submitted that Dr Hopcroft’s expressed conclusion amounted to nothing more than an "ex cathedra" statement which was not the subject of any exposed reasoning.

Senior counsel for the plaintiff submitted that in the preceding paragraphs Dr Hopcroft had set out, in some detail, his findings on examination. [16] It was submitted that it was clear, when the report was read as a whole, that it was on the basis of those findings that Dr Hopcroft had determined the loss of efficient use that he had expressed.

In my view, the submission of senior counsel for the plaintiff should be accepted. It is self-evident that Dr Hopcroft’s assessment of loss was based upon his findings on examination.

The next objection was to the following paragraphs of the same report: [17]

Senior counsel for the defendant took particular objection to Dr Hopcroft's use of the word “compromise" and submitted that was unclear from the report whether the use of that term formed part of Dr Hopcroft’s opinion, or whether it was something that the plaintiff had told him and therefore formed part of the history. Further, and in addition to submitting that there was an absence of exposition of any underlying reasoning process, senior counsel for the defendant submitted that the use of the word “compromise" attracted the provisions of s 135(b) of the Act and these particular passages should be excised from the report on the basis that their probative value was substantially outweighed by the danger that they might be misleading or confusing.

Senior counsel for the plaintiff submitted that there was nothing confusing about the use of the word “compromise" and that this became clear when the relevant letter of instructions was considered.

In my view, there is nothing misleading or confusing about these passages. The word “compromise” is an ordinary English word which should be given its ordinary English meaning. The meaning adopted by Dr Hopcroft in arriving at his conclusions is to be drawn from the preceding paragraphs of the report.

The first objection taken was to the following passage: [18]

Objection was also taken to the expression of opinion regarding the plaintiff's injury to his cervical spine: [19]

Senior counsel for the defendant also objected to a further passage in the following terms: [20]

Senior counsel for the defendant submitted that the conclusion of Dr Hopcroft as to the difficulties with the plaintiff's cervical spine was “quite irrational", and that such conclusion was not accompanied by any explanation of why it was that he had reached it. Senior counsel also took particular issue with the fact that Dr Hopcroft had referred the plaintiff for an MRI scan in circumstances where he had examined the plaintiff for medico legal purposes.

Senior counsel for the plaintiff submitted that the basis of these particular opinions were to be found in the paragraphs which preceded them. It was submitted that the fact that Dr Hopcroft had referred the plaintiff for further investigations was not inconsistent with the Expert Code of Conduct and that the form of the report was conventional.

Again, reading the report as a whole, Dr Hopcroft's reasoning processes is in my view sufficiently exposed. To the extent that there may be some “cross over” between his opinions and the history with which he was provided, the latter will be admitted as evidence of the fact.

Further in my view, there is nothing objectionable about the fact that Dr Hopcroft recommended referral for an MRI scan based on the history with which he had been provided. It was open to him to recommend that course if he thought it appropriate. In my view, there is nothing in the Expert Code of Conduct which prohibits that course. Moreover in my view, the fact that Dr Hopcroft made that recommendation does not render his opinion inadmissible, nor does it provide a basis for its discretionary exclusion.

The first of the passages to which objection was taken in this report is in the following terms: [21]

Subsequently, Dr Hopcroft said the following to which objection is also taken: [22]

Finally, objection was also taken to the following further passages of the report: [23]

Senior counsel for the defendant submitted that the various references to chronic regional pain syndrome were inadmissible. It was submitted that Dr Hopcroft had not identified when the development of that syndrome had occurred.

Senior counsel for the plaintiff submitted that the objections taken essentially went to matters of weight rather than admissibility, and were matters which were properly dealt with by way of submission at the conclusion of the evidence.

In terms of the first paragraph to which objection was taken, much of that paragraph appears to me to recount matters of history and should be limited accordingly. However, Dr Hopcroft's diagnosis of the development of a chronic regional pain syndrome is largely unexplained and for that reason, that part of his opinion should be excluded.

In my view, Dr Hopcroft's opinions as to the plaintiff's fitness for work are admissible. His reference to the plaintiff's difficulties in undertaking activities of daily living form part of the history provided and will be limited accordingly.

Dr Dinnen, a Consultant Psychiatrist, examined the plaintiff or medico-legal purposes and furnished three reports dated:

It was agreed between the parties that the history recorded by Dr Dinnen in his various reports would be limited, pursuant to s 136 of the Act, as evidence of the history provided, as opposed to evidence of the facts asserted. [24]

In expressing his opinion, Dr Dinnen said the following: [25]

Objection was taken by senior counsel for the defendant to the italicised portion of that paragraph on the basis that the opinion expressed fell outside Dr Dinnen’s expertise. In the event that I found that the evidence was admissible it was submitted that it should be excluded pursuant to s 135(a) and/or (b) of the Act on the basis that it was unfairly prejudicial, or was misleading or confusing.

Senior counsel for the plaintiff pressed this part of Dr Dinnen's opinion and submitted that it was within his expertise as a psychiatrist to express such a view. Senior counsel submitted that as someone who dealt with people who made varying complaints, it was within the expertise of Dr Dinnen to express an opinion as to whether or not what was said by the plaintiff was accurate.

In my view, this portion of the report should be excluded for a number of reasons. To begin with, it is not clear, bearing in mind the purpose for which Dr Dinnen examined the plaintiff, what he means by the term “genuine witness". Whether the plaintiff falls within that description is a matter for the Court, not a medical practitioner. That aside, the basis upon which Dr Dinnen has expressed that view has not been explained, in circumstances where he examined the plaintiff over what was obviously a limited period of time for medico-legal purposes.

Dr Dinnen expressed the following opinion in the same report: [26]

Senior counsel for the defendant submitted that this passage amounted to no more than Dr Dinnen stating a belief, based upon the history that he took, and his review of clinical notes of Karen Hancock, Psychologist. As I understood it, senior counsel submitted that Dr Dinnen's reasoning process was not properly disclosed.

Senior counsel for the plaintiff submitted that it was evident from a reading of the entirety of the report that Dr Dinnen based his opinion on the history that he had been given, and the impression that he formed of the plaintiff when he interviewed him.

In my view, this part of Dr Dinnen’s report should be excluded. Dr Dinnen has simply recorded the history that he was given, reviewed the plaintiff's treatment by Ms Hancock, and expressed the view that the plaintiff is suffering from an ongoing adjustment disorder with anxiety and depressed mood. He has not explained why he reached that conclusion, or what aspects of the plaintiff's history caused him to do so.

The report of Dr Dinnen of 1 November 2018 [27] followed his examination of the plaintiff on 25 October 2018. The general format of that report was the same as that of the report of 16 November 2017, in the sense that Dr Dinnen recorded the contents of his interview with the plaintiff, his interview with the plaintiff's wife and a review of relevant documentation, before expressing the following opinion: [28]

Senior counsel for the defendant again took objection to that opinion on the basis that the reasoning which supported it had not been exposed. Senior counsel submitted that the report amounted to nothing more than the recording of a history followed by an expression of opinion, without any attempt by Dr Dinnen to explain what aspects of that history led him to form the opinions expressed.

Senior counsel for the plaintiff submitted that when the report was read in its entirety the basis of Dr Dinnen's opinion became clear. It was further submitted that this report supported the admissibility of the opinion expressed by Dr Dinnen in his earlier report.

In my view this report, like the first, is essentially bereft of the exposition of any reasoning process to support the opinion which has been expressed. What the report does is record a history and express an opinion without explaining what it was about that history (or about any other factor) which caused the opinion to be formed.

For these reasons, Dr Dinnen's opinion will be excluded.

Dr Dinnen examined the plaintiff again on 3 June 2019 and provided a further report of 24 July 2009. [29] In the course of documenting the history that he took, Dr Dinnen and said: [30]

In terms of his opinion, Dr Dinnen said: [31]

Senior counsel for the defendant submitted that in a general sense, this report suffered from the same vice(s) as those in the reports which preceded it and was similarly lacking in the exposition of any reasoning process.

Senior counsel for the plaintiff relied upon the documented history and submitted that when the report was read as a whole, the reasoning process which led Dr Dinnen to form his opinion was to be drawn from at that history.

In my view, for the reasons I have already given, when addressing Dr Dinnen’s previous reports, the opinion expressed by Dr Dinnen in this report must meet with the same fate. Fundamentally, Dr Dinnen has failed to explain what aspect(s) of the history that he took, or what other factors, led him to form the opinion that he expressed. The absence of any reasoning process renders the opinion inadmissible.

Suzanne Miller Ravagnani, an Occupational Therapist, provided a report of 31 March 2017. [32] In the course of that report, [33] Ms Ravagnani stated the following:

Senior counsel for the defendant objected to the admissibility of the report on the basis of an absence of any reasoning process. He submitted, in effect, that the report contained a history, and adoption of the history, followed by the expression of an opinion about the plaintiff's requirements.

Senior counsel for the plaintiff submitted that the factors which supported the opinion which had been expressed were to be found in the recitation of the history and background information which appears in the report.

The form of Ms Ravagnani’s report sets out:

Following the recitation of those matters, various opinions are expressed by Ms Ravagnani as to the plaintiff's ongoing needs. There is, in my view, a complete failure on the part of Ms Ravagnani to explain why it is that she came to the view that the assistance that she has identified is required. For example, in terms of the plaintiff's ongoing domestic needs and attendant care, Ms Ravagnani stated: [34]

Ms Ravagnani has not stated (for example) what it was about the visit to the plaintiff's home which caused her to form that view. There is also no explanation of her understanding of the nature and extent of the functional ramifications of the plaintiff's injury, and why those ramifications justify the level of care and assistance which has been recommended.

For these reasons, the opinion of Ms Ravagnani should be excluded.

Ms Ravagnani provided a second report dated 15 July 2019 following a review “by telephone" on 12 June 2019 with the plaintiff and his wife. [35]

In the course of her report, Ms Ravagnani said: [36]

For the reasons previously expressed when dealing with the earlier report, the opinions of Ms Ravagnani contained in this report should be excluded.

There are a series of joint reports which have been prepared by the experts. Senior counsel for the defendant has taken various objections to those reports but has submitted that all of those objections should be deferred until such time as the experts have given evidence and have been cross-examined. The nature and extent of the objections which have been taken are such that in my view, that is an appropriate course. In those circumstances this issue will be addressed in the judgment which is delivered at the conclusion of the proceedings.