IN THE HIGH COURT OF JUSTICE RHONDA TAYLOR. And

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV Between RHONDA TAYLOR And PRIEST TITRE PRESIDENTIAL INSURANCE COMPANY LIMITED ANDY SOOKHOO LATCHMAN BOLA INDUSTRIAL RENTALS LIMITED NEW INDIA ASSURANCE COMPANY OF TRINIDAD AND TOBAGO LIMITED Claimant Defendants BEFORE : MASTER MARGARET Y MOHAMMED Appearances: Mr. Azeem Mohammed for the Claimant Ms. Reeyah Chattergoon for the third, fourth and fifth named defendants DECISION- EVIDENTIAL OBJECTIONS 1. This decision concerns the distinction between evidence of fact and expert opinion in the context of a personal injury claim where the witness statement of a medical doctor was filed by the claimant without permission having been sought. On May 16, 2011 I ruled that I would not allow any evidence to be led at the hearing of the assessment of damages on the costs of future surgery due to the claimant s failure to plead this in her statement of case ( my previous ruling ). On May 27, 2011 I gave permission to the Page 1 of 12

2 claimant to file and serve witness statements for her witnesses namely Dr. Rasheed Adams, Dr. Henry Bedaysie and Lise Montrichard. The claimant had filed witness summaries for these witnesses on September 16, 2010 in compliance with the directions given by Master Paray-Durity. 2. On June 16, 2011 the witness statements for Dr. Bedaysie and Lise Montrichard were filed and served 1. On June 24, 2011 the third, fourth and fifth defendants ( the defendants ) filed a notice of evidential objections with respect to certain paragraphs of the evidence of both witnesses. I dealt with the objections of Lise Montrichard s witness statement and after hearing submissions from both parties on paragraphs 7, 8, 9, 12, 13, 15, 16, 17, 18 of Dr. Bedaysie s witness statement ( the offending paragraphs ) I reserved my decision. This decision therefore concerns Dr. Bedaysie s witness statement only. 3. This case is a personal injuries claim arising from a motor vehicle accident which took place on July 25, The action was instituted on January 23, 2009 and at the case management conference on June 29, 2009 the claimant was awarded judgment against the defendants by the Honourable Madame Justice Pemberton and permission was granted to discontinue the proceedings against the first and second defendants. Notably, at that hearing the Judge gave the claimant permission to amend the statement of case at paragraph 13 to include the pleading with respect to the claimant s injuries as particularized and to include facts with respect to the updated medical reports and at paragraph 15 to include the costs and the updated medical reports. The statement of case was never amended. THE PLEADED CASE 4. Paragraphs 12, 14 and 15 of the statement of case set out the particulars of claim for general and special damages for the claimant. Paragraph 12 sets out the particulars of 1 The claimant s attorney indicated that he would not be filing any witness statement for Dr Adams Page 2 of 12

3 injury sustained by the claimant as a result of the accident. This paragraph also refers to the reports of Dr. Fidel Rampersad, radiologist dated August 2, 2008, Dr. Piysuh P. Siwach, radiologist dated September 30, 2008 and Dr. Henry Bedaysie, Neurosurgeon dated November 13, 2008 all which are attached in the first schedule as are required by Part 8.10 CPR in actions for personal injury claims. 5. Paragraph 15 of the Statement of Case sets out the details of the claim for the special damages. The items pleaded for special damages were : Medical report (Dr. Fidel Rampersad) 400 Medical Report (Dr. Henry Bedaysie) - Medical visits 650 MRI Report 5900 Transportation to be supplied Police Report 50 Medication to be supplied Purchase of Chin Collar at A.A. Laquis Ltd. 285 Services Ortopedicos T.T. - Loss of earnings from to date and continuing at $6,000 per month - TOTAL CLAIM - Full details are contained in the Second Schedule of damages attached. As stated previously there was no pleaded case for costs for future surgery. DR. BEDAYSIE S WITNESS STATEMENT 6. Paragraph 1 sets out the qualifications of Dr. Bedaysie. He is a specialist medical doctor in Neurosurgery and a registered member of the medical board of Trinidad and Tobago. He has been a Specialist Neurosurgeon for the past 27 years. Paragraphs 2 and 3 Page 3 of 12

4 confirm that he examined the claimant on November 12, 2008 and indicated his findings upon the examination. Paragraph 7 speaks to Dr. Bedaysie s agreement with Dr. Adams assessment of future cervical fusion surgery for the claimant and the cost of the surgery. Paragraph 8 gives his assessment of the effect of the future surgery on the claimant. Paragraph 9 refers to my previous ruling namely the disallowance of the costs of future surgery. 7. Paragraph 12 speaks to the type of future medication, physiotherapy and medical attention which the claimant would require for the rest of her life to manage her pain if she does not have surgery. Paragraphs 13 and 15 indicate the impact that the claimant s injuries would have on her day to day activities and her ability to work as a Casino Dealer. Paragraph 16 concerns the doctor s recommendation for domestic help for the claimant for the future. Paragraph 17 is the doctor s assessment that the claimant is now unfit to work in her present job as a Casino Dealer and he gives his assessment of the claimant s permanent partial disability of 80%. Paragraph 18 is his fee of $10, to attend court. THE SUBMISSIONS 8. The defendant objected to paragraph 7 of Dr. Bedaysie s witness statement on the grounds of hearsay, admissibility and in particular since it infringed my previous ruling of disallowing any evidence with respect to future surgery. With respect to paragraphs 8 and 9 the defendants also objected on the ground of relevance. Paragraphs 12,13,15,16,17,18 were objected to on the basis of relevance and that the evidence sought to be adduced is a departure from the pleaded case and to allow this evidence would be prejudicial to the defendants. 9. In support of these objections Ms. Chattergoon referred me to the following authorities. Page 4 of 12

5 (a) Top Hat Yachts Ltd v Evelyn Petersen and ors. 2 The judge found that parts of the evidence in a witness statement for the claimant was that of an expert and since the procedure contained in Part 33 CPR was not followed she disallowed the paragraphs with that evidence. The judge also disallowed all other evidence for which there was no factual basis in the statement of case on the basis that they offended Part 8.6 of the CPR (b) Charmaine Bernard v Ramesh Seebalack 3 The Judicial Committee of the Privy Council stated that where general damages are claimed, the statement of case should identify all the heads of loss that are being claimed and that a detailed witness statement or a list of documents cannot be used as a substitute for a short statement of all facts relied on by the claimant 4. (c) Perestrello v United Paint Co Ltd 5. The court was of the view that a mere statement that the plaintiffs claimed damages is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to a fair warning. (d) Anand Rampersad v Willies Ice Cream Ltd 6. The court confirmed that apart from express statutory exceptions it is not competent for a party to prove a fact by producing a document in which that fact is recorded without calling the maker of the document to say that what he wrote in the document represented a true statement of fact. 10. Ms. Chattergoon also provided the following authorities to the court and the attorney for the claimant in support of her submissions: Jet Holding Ltd and ors v Cooper Cameron (Singapore) Pte Ltd and anor 7 ; Charles David Pty Ltd v Qualico Central Meat 2 CV decision of Pemberton J on February 1, UKPC 15 4 Para. 16 (2010)UKPC 15 5 (1969) 3 All ER Civ Appeal No 20 of (2006)SGCA 20 Page 5 of 12

6 Packers Montreal Ltd 8 and Civil Evidence for Practitioners 2 nd Ed 9 which addressed the issue of admissibility of hearsay evidence. 11. In response, the crux of the attorney for the claimant s submissions was that Dr. Bedaysie is a medical expert under Part 33 of the CPR and as such it is for the court to determine the weight, if any, to be attached to his medical expert opinion. THE ISSUES 12. The issues which have arisen out of these objections and submissions are: (a) Is Dr. Bedaysie an expert under Part 33 of the CPR in this matter? (b) If he is not an expert, can he be a witness of fact? PART 33 CPR-EXPERT EVIDENCE 13. Part 33 of the CPR governs the use of experts before the court. Rule 33.5 is clear that a party cannot call an expert witness or put in an expert s report without the court s permission. Once the court has given this permission the expert s overriding duty is to the court since its duty is to help the court impartially on all matters relevant to his expertise and this duty overrides any obligations to the persons from whom he has received instructions (Rule 33.1). 14. The expert s report must set out the facts or assumptions upon which his opinion is based and must clearly indicate if any particular matter or issue falls outside his expertise (Rule 33.2). He can apply to the court for directions and it is the court that directs the date on which the report is due (Rule 33.5). The expert s report must be addressed to the court and not to any person from whom he received instructions (Rule 33.9) CarswellOnt Pages and 227 Page 6 of 12

7 15. The contents of his report must give details of his qualifications, any literature or other material on which he has relied in the making of his report, indicate the persons who carried out any tests which he has used in his report, give details of the qualifications of those persons, summarise any range of opinions and give reasons for his opinion (Rule 33.10(1)). 16. At the end of the report there must be a statement indicating that he understands his duty under Rules 33.1 and 33.2, he has complied with that duty, that all matters are within his knowledge and are of expertise relevant to the issue and he has given details which may affect the validity of the report. More importantly, there must be attached to the expert s report copies of all written instructions given to the expert, supplemental instructions or a note of oral instructions (Rule 33.10(3)). 17. Part 33 therefore controls the volume, quality and impartiality of expert evidence. Blackstone s Civil Practice 10 summed up the changes on expert evidence brought about by the CPR as the effect of the CPR has been to restrict what was formerly the parties almost unhindered right to call their own experts to give evidence in court. I would only add that the new procedure under Part 33 also limits the cost in the use of experts. ANALYSIS 18. When I examine the pleadings, paragraph 12 of the statement of case refers to Dr. Bedaysie s report of November 13, 2008 as required by Part 8.10 in claims for personal injuries. A copy of the said report is also attached to the statement of case. The direction given by Master Paray-Durity on April 22, 2010 was for the parties to file and serve witness statements on or before September 16, There was no direction or order appointing any expert or granting permission for the filing of any expert report as ed at page 632 para 52.1 Page 7 of 12

8 required by Part The witness summary of Dr. Bedaysie filed on September 16, 2010, does not indicate that he is being called as an expert witness under Part On May 27, 2011 when I gave permission for the witness statement of Dr. Bedaysie to be filed and served it was in the context of the witness summary which was already filed. At that time I was of the view that he was one of the claimant s witnesses. Therefore the assertion at paragraph 19 of Dr. Bedaysie s witness statement that I state that I understand my duty to the Court as set out in rules 33.1 and 33.2 of the Civil Proceedings Rules and I have complied with that duty. The Medical Report hereto attached includes all matters within my knowledge and area of expertise relevant to the issue on which my expert evidence is given. I have also given details in my report of any matters which to my knowledge might affect the validity of my report has taken me by surprise since there is was no permission by the court allowing him to be an expert under Part In Vanessa Garcia v North Central Regional Health Authority 11 Aboud J. addressed the issue of whether 2 doctors who were employed with the defendant were experts within the meaning of Part 33. In that case, one of the doctors gave information concerning the claimant s medical records which were in the possession of the defendant and the other gave his medical opinion on the cause and likely resulting effects of such an injury as sustained by the claimant. Aboud J. allowed the defendant to call the 2 intended witnesses at the trial on the basis that the two doctors are not experts within the meaning of Part 33, or within the definition of Lord Wilberforce. They are not independent or uninfluenced by the exigencies of litigation. They are seeking to defend the professional integrity of their hospital, and in that sense, I do not mark their evidence as inherently unbiased, independent, or non-tendentious. Leave to use their witness summaries under Part 33 were not required because while they are witnesses with expertise they are not regarded by me to be expert witnesses within the 11 CV Page 8 of 12

9 parameters of Part 33. Whatever use I can make of their evidence at the trial will depend on what weight I ascribe to their testimony, bearing in mind, at all times, that they are likely to be serving the defendant s interest above those of the court. In that sense, I treated the issue as one of weight to be determined at the trial, rather than one of admissibility to be determined at the case management stage On appeal, the Court of Appeal allowed the defendant to call the doctor who proposes to give evidence of the claimant s medical records but not the doctor who is expressing his medical opinion. Archie C.J. commented on the distinction in procedure between the common law and the CPR where he said where you have a rule which requires an expert s evidence, you have something that has statutory reports that require an expert evidence to meet certain criteria, then if you admit that it is expert evidence, then it must meet those criteria, otherwise it is hearsay In addressing the admissibility of expert reports in Martin Phillip Revenales v Eric Charles 14 Dean Armorer J. heard arguments on whether Part applied to experts who were not court appointed but who were intended to testify in favour of a particular party. The court held that all experts under the Civil Proceedings Rules have a duty to provide independent assistance to the Court. Moreover failure to provide information required by Part of the Civil Proceedings Rules is fatal and would result in the Court s rejection of the expert report It appears to me that the insertion of the statement at paragraph 19 (which I have set out in paragraph 20 aforesaid) is an attempt by the claimant to circumvent the procedure for the appointment of an expert under Part 33 and to sneak through the backdoor a claimant s witness under the guise as an expert appointed under Part 33. In the circumstances I do not view Dr. Bedaysie as an expert within the meaning of Part CV Para CA 118/2011 Transcript page 6 14 CV CV at paragraph 14 Page 9 of 12

10 since no permission was given for him to be called as an expert under Part 33. Indeed there is no evidence that any permission was ever sought by the claimant for Dr. Bedaysie to be an expert under Part 33. The failure to follow the procedure under Part 33 is fatal and therefore I find that Dr. Bedaysie s evidence as contained in his witness statement is not admissible as expert evidence under Part Further, while it is true that the court can grant permission at any time to allow an expert report I do not share the view that to do so at this stage would further the overriding objective in dealing with the case justly. I am of the view that it is now too late to make such an application since the court is now deprived of its supervisory function to ensure that several of the requirements with which an expert has to comply are followed. In any event, to allow the offending paragraphs to stand as expert evidence would prejudice the defendants and put this court at a serious disadvantage in assessing the evidence. DR. BEDAYSIE AS A WITNESS OF FACT 25. In light of my aforesaid ruling I will now examine if Dr. Bedaysie can be a witness of fact and if any of the paragraphs of his witness statement are admissible in this context. The lack of a clear definition of expert in Part 33 may have caused some confusion in the use of experts and may have caused some persons to try to reclassify expert evidence as one of fact. In the cases of Gall v Chief Constable of the West Midlands 16 and Kirkman v Euro Exide Corporation 17 it was held that medical witnesses can be witnesses of fact depending on the evidence which such witnesses are permitted to give. Gall and Kirkman are authorities for the position that if the medical witness is stating the nature of the injuries which the doctor observed upon examination of the claimant, while he is relying on his knowledge and experience as a professional person he is giving evidence of facts and not an expert opinion. 16 (2006)EWCA 2638(QB) 17 (2007) EWCA Civ 66 Page 10 of 12

11 26. Paragraphs 1-5 of the witness statement of Dr. Bedaysie set out certain facts namely: his qualifications, the injuries he found upon examination of the claimant, his medical report dated November 12, 2008 which was annexed to the statement of case, the MRI report on the Lumbar Spine which was also annexed to the statement of case and the MRI report on the Cervical Spine which was not annexed to the statement of case but it was disclosed to the defendants in the discovery process. All the information in these paragraphs is not new. In this regard, these are statements of facts and not opinion and I allow these paragraphs to stand. 27. However, paragraphs 7, 8 and 9 of Dr. Bedaysie s witness statement express his medical opinion on the future surgery for the claimant. These paragraphs are struck out for 2 reasons namely: the failure by the claimant to plead the costs of future surgery in her statement of case and they express Dr. Bedaysie s medical opinion. 28. Paragraphs 12 and 16 express Dr. Bedaysie s medical opinion on the future expenses which the claimant would incur due to her injuries. They are struck out since they were not pleaded in the statement of case and they express his medical opinion. Paragraph 13 is Dr. Bedaysie s medical opinion on how the claimant s daily activities would be affected due to her injuries and paragraph 15 is the doctor s recommendation based on his medical opinion. Paragraphs 13 and 15 are also struck out since they express his medical opinion. Paragraph 18 is the doctor s fee for attendance to give evidence.this cost was not pleaded in the statement of case and is therefore struck out. CONCLUSION 29. Dr. Bedaysie is not an expert under Part 33 CPR in this matter since the procedure set out therein was not followed. It is now too late to make such an application since the court is now deprived of its supervisory function to ensure that the expert has complied with the requirements of Part 33. Page 11 of 12

12 30. Dr. Bedaysie can be called by the claimant as a witness of fact. However, the offending paragraphs are struck out since they express his medical opinion and are not consistent with the pleaded case. ORDER 31. Paragraphs 7,8,9,12,13,15,16,17 and 18 of the witness statement of Dr. Bedaysie filed June 16, 2011 are struck out. The claimant to pay the defendants costs to be assessed. Dated this 3 rd day of October, 2011 Margaret Y Mohammed Master of the High Court (Ag.) Page 12 of 12