Baltic v Coles Supermarkets Australia Pty Ltd & Anor

Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Category: Procedural rulings

Parties: Igor Baltic (Plaintiff)
Coles Supermarkets Australia Pty Ltd (ABN 45 004 189 708) (First Defendant)
The Trustee for Arthur Tzaneros Discretionary Trust & The Trustee for Luke Webber Trust (ABN 30 815 135 117) (Second Defendant)

Representation: Counsel:
M Cranitch SC/J McEnaney (Plaintiff)
N Polin SC/K Lloyd (First Defendant)
F Doak (Second Defendant)
Solicitors:
Santone Lawyers (Plaintiff)
McCulloch & Buggy Lawyers (First Defendant)
Bartier Perry Lawyers (Second Defendant)

File Number(s): 2022/00115701

Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

1. On 27 April 2019, at around 11am, Igor Baltic (‘the plaintiff’), a “picker-packer”, sustained an injury to his lower back whilst working at the Coles Distribution Centre in Smeaton Grange, New South Wales. The injury occurred when he lifted a box of Nutella. He claims damages, alleging that his injury was caused by the negligence of the first and second defendants. Both deny liability.

2. The plaintiff seeks to tender a folder of expert medical evidence which Mr Cranitch SC, who appears for the plaintiff, accepts was not served by the plaintiff in accordance with the orders of the Court. The plaintiff’s intention to rely upon this evidence was first foreshadowed by the production of that folder of material at the commencement of the trial.

3. The medical reports sought to be relied upon can conveniently be divided into two categories: first, expert medical evidence relating to the plaintiff’s physical injuries allegedly sustained in the incident on 27 April 2019; and, secondly, expert medical evidence relating to the plaintiff’s alleged psychological symptomatology resulting from his physical injuries.

4. The defendants object to the tender of the material.

The medical reports relating to the plaintiff’s physical injuries

5. Following objection, and brief argument, the plaintiff indicated that, for the expert medical evidence relating to the plaintiff’s physical injuries (located behind tabs 7-55 inclusive of the plaintiff’s tender bundle), it was only sought to tender that material to prove the fact of treatment (including its timing and nature), but not the opinions expressed in the reports.

6. In addition to limiting the use of the evidence in this way, the plaintiff also proposed that, in relation to these reports (and indeed, all medico-legal reports that he seeks to tender), there should be an order limiting the use of the histories contained in the reports – the limitation being that the histories are not evidence of the facts asserted, but merely to establish what the relevant medical expert was told.

7. Not uncommonly, orders limiting the use of evidence in this way are made, and facts are admitted merely to establish the basis for the expert’s opinion: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [75].

8. Here, given the first limitation proposed by the plaintiff, it would be necessary to limit the history more specifically – namely, to establish the basis for the expert’s opinion on the treatment proffered.

9. The defendants indicated that an order limiting the use of the evidence in this way would ameliorate any forensic disadvantage to them, and they would not oppose their tender on this basis.

10. Accordingly, I propose to admit the medical evidence behind tabs 7-55 inclusive of the plaintiff’s tender bundle, but, pursuant to s 136 of the Evidence Act 1995 (NSW), limit the use of the representations within the reports (to be clear, the histories contained within them), to merely establishing the basis for the expert’s opinion on the treatment proffered. Further, pursuant to s 136 of the Evidence Act 1995 (NSW), I limit the use of the evidence to prove the fact of treatment (including its timing and nature).

The medical reports relating to the plaintiff’s alleged psychological injuries

11. In relation to the expert medical evidence relating to the plaintiff’s alleged psychological symptomatology (located behind tabs 56-59 inclusive of the plaintiff’s tender bundle), the plaintiff essentially relies upon the same proposed limitations. The plaintiff submitted that these limitations overcome the prejudice to the defendants occasioned by the late service of the material.

12. The defendants object to these reports being admitted on any basis. They argue that it is unfair, and significantly prejudicial to them, if this material is admitted, given its belated service, and that this is so notwithstanding any proposed limitation suggested by the plaintiff. In aid of these overarching submissions, they emphasise the following matters.

13. First, in the amended statement of particulars filed on 7 May 2025 pursuant to r 15.12 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff particularised that he sustained psychological injury and disabilities as a result of the incident on 27 April 2019. For example, in those particulars, the plaintiff alleges to have, inter alia, suffered psychological injury “including anxiety and depression” and a range of psychological disabilities. Thus, there is no suggestion that any alleged psychological injury and disability was a recent occurrence. On the contrary, the intent to advance such a claim was well known since at least May 2025 and, most likely, well before then.

14. Secondly, notwithstanding the extensive particularisation of psychological injury and disabilities, no expert evidence – of any kind – was served to support these allegations.

15. It is relevant in this respect to note that on 25 July 2025, in the course of a case management hearing in the matter, I made the following notation:

6. Note that, subject to these orders, each party has confirmed that they have served all evidentiary statements and expert evidence upon which they rely and have confirmed their readiness for the hearing commencing 2 February 2026.

16. The defendants, I accept, proceeded on the basis of the evidence served (or, perhaps more relevantly, not served). I have no doubt, and accept, that if this material had been served in a timely way, each defendant would have investigated and addressed this aspect of the claim – most likely through the retention of expert evidence in response.

17. Thirdly, this is not a case where the evidentiary statement of the plaintiff provided the necessary factual integers to establish such a claim, at least with any specificity. As was pointed out by Mr Polin SC, who appears with Ms Lloyd for the first defendant, and Mr Doak, who appears for the second defendant, the plaintiff’s primary evidentiary statement dated 22 May 2025 (exhibit A) was largely, if not entirely, silent upon that aspect of the plaintiff’s claim for damages. Further, to the extent that the plaintiff’s evidence touched upon this issue, it only occurred in the recent evidentiary statement of the plaintiff dated 30 January 2026 (exhibit B). It was submitted by the defendants, and I accept, that the service of this evidence over the course of the weekend prior to the trial commencing did not enable them any realistic opportunity to investigate and respond to that evidence, notwithstanding its somewhat confined nature. The plaintiff, it should be noted, did not argue to the contrary.

18. Fourthly, no evidence has been adduced to provide any explanation for the belated service of this material outside of the case management orders for the service of evidence, other than the suggestion made during submissions that it was possibly the product of oversight (T243.35).

19. It is important to identify the use to which the plaintiff seeks to make of this evidence, with the limitations proposed. He will presumably argue that, given the plaintiff has undergone the psychological treatment referred to in this material, the Court should infer that he has suffered a significant psychological condition necessitating the various kinds of treatment that he may have undertaken from time to time over the past seven years. A finding in those terms would necessarily bear upon – possibly significantly – a number of the heads of damages claimed by him.

20. In my view, in the circumstances, as I have outlined, it would work considerable unfairness and prejudice upon the defendants to admit this material. Accordingly, I reject the tender of the expert medical evidence relating to the plaintiff’s alleged psychological symptomatology (located behind tabs 56-59 inclusive of the plaintiff’s tender bundle).

Orders

21. For the above reasons, I make the following orders:

22. Admit the medical evidence behind tabs 7-55 inclusive of the plaintiff’s tender bundle but, pursuant to s 136 of the Evidence Act 1995 (NSW), limit the use of the representations within the reports (being the histories contained within them) to establishing the basis for the expert’s opinion on the treatment proffered and proving the fact of treatment (including its timing and nature).

23. Reject the tender of the expert medical evidence relating to the plaintiff’s alleged psychological symptomatology located behind tabs 56-59 inclusive of the plaintiff’s tender bundle.

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