HER HONOUR: This is an action for damages for personal injury allegedly suffered by the plaintiff while she was driving a truck during the course of her employment at the Ulan Colliery. The first defendant was the manager of the mine. The second defendant is the owner of the mine.
The plaintiff's injuries are alleged to have occurred when a tyre on the truck she was driving exploded which, in combination with an alleged defect in the road on which she was travelling, is said to have resulted in her losing control of the truck and being jolted, jarred and twisted in her seat. She complains of injury to the back and lower leg together with psychological injuries as a result of the pain suffered due to those physical injuries.
This judgment determines an application by the second defendant for leave to rely on an expert report. Leave is required because the report was served late, some time after the time within which the Court had directed that any expert liability evidence be served.
The relevant chronology may be summarised as follows. The incident allegedly resulting in the plaintiff's injuries occurred in June 2012. Proceedings were commenced in the District Court in 2014. Directions were made in that court for the plaintiff to serve liability and medical evidence by 30 October 2014, which she did. On 16 October 2014, the plaintiff served a report of Jason Wagstaffe dated 2 September 2014. The defendants had been ordered to serve liability and medical evidence by 27 November 2014. Neither defendant served any expert report in response to the report of Mr Wagstaffe.
Mr Wagstaffe's report records that he is, "a professional consulting engineer holding formal qualifications in both occupational health and safety and risk management." His tertiary qualifications would apparently not qualify him to be admitted to the profession of civil engineering or mechanical engineering. Apart from being a Justice of the Peace, he holds a Graduate Diploma MIRM, a Graduate Diploma in Mine Ventilation and an Associate Diploma of Engineering (Coal Undermanager) as well as being an OHS&E auditor and a Member of the Safety Institute of Australia. His report states that, in addition to those qualifications, he has more than 20 years' experience as a safety engineer, consultant health and safety specialist, coal mine supervisor, coal mine risk and compliance specialist, auditor trainer and risk manager. He recites his experience in those fields. It is not clear whether there will be a challenge at the hearing to the admissibility of the report on the grounds of expertise (or lack of it) but none has been foreshadowed.
The proceedings were listed for hearing in the District Court in May 2015 but that date was vacated by consent on the basis that the plaintiff's physical condition was not settled at that stage and further investigation was required. Ultimately she had lumbar spinal surgery in late 2015 as a result of those further investigations. In the meantime, it appears that the first defendant went into external administration.
After the plaintiff's surgery in November 2015, she retained her current solicitors in place of the solicitors on the record at the time the proceedings were commenced. The new solicitors took steps to have the proceedings transferred to this Court. The first mention of the proceedings in this Court was on 31 March 2016. On that occasion there does not appear to have been any suggestion that either defendant would wish to rely on an expert liability report. I draw that inference on the basis of the directions made by the Registrar that date, which related only to the service of updated medical evidence, a requirement that the plaintiff serve an evidentiary statement and an order for mediation. There is no mention in the orders of any suggestion that the defendants would seek to rely upon an expert liability report.
The proceedings came back before Registrar Bradford on 15 September 2016. It appears to have been shortly before that directions hearing that the second defendant for the first time foreshadowed the prospect of serving an expert liability report. According to the affidavit of the solicitor now on the record for the plaintiff, Ms Baldwin, the information that she was given at that stage was that the second defendant intended seeking expert liability evidence "on how/why the tyres could burst".
The plaintiff initially opposed that order but, upon the parties agreeing that a hearing date could be sought as well as an order for the second defendant to serve expert liability evidence, that opposition was withdrawn. At that directions hearing, Registrar Bradford made what I understand to be the first and only order for service of expert liability evidence by the defendants, directing that to occur by 9 December 2016. The directions made that day also required the plaintiff to serve evidentiary statements from any witness upon which she intends to rely by 20 October 2016. The proceedings were also stood over to 30 September 2016 for call-over to allocate a hearing date.
At the call-over on 30 September 2016, the proceedings were allocated a hearing date with an estimate of six days commencing on 4 September 2017, some six weeks hence. Those directions also required the parties to return to Court on 15 December 2016 for a timetable to be set regarding conclaves. However, that direction was overtaken by events that occurred at the call-over on 30 September 2016, when orders were made as follows:
"Experts in their respective areas of expertise are to confer and provide a report on matters agreed and disagreed setting out the reasons for their disagreement. Such conference is to take place by 31 March 2017. The report from the experts is to issue by 28 April 2017."
The parties were also directed at the call-over to file and serve a final joint memorandum of issues in dispute and agreed facts executed by counsel by 19 May 2017. They were further directed to file affidavits as to readiness by 2 June 2017, all working towards the hearing date in early September 2017.
The proceedings were listed for a final directions hearing on 9 June 2017. Shortly before that directions hearing, the solicitor for the plaintiff, Ms Baldwin, again circulated e-mails with a view to curing an apparent slippage in the timetable. In particular, she noted that the parties were supposed to have held concurrent meetings of like experts and to have obtained reports from the experts by the end of April. The correspondence was directed to arranging or agreeing upon dates when that might occur so as to appease the anticipated response of the Registrar to the fact that it had not yet occurred. It was only in the course of that correspondence, shortly before the directions hearing on 9 June 2017, that the second defendant first indicated that, notwithstanding the fact that the time for serving expert evidence had passed, it was considering obtaining and serving an expert report.
Ms Baldwin's first response to that suggestion was, understandably, that that would cause her client difficulty at that late stage. Ultimately, on 9 June 2017, the plaintiff indicated her objection to any extension of the period within which expert evidence might be served by the defendants, noting that no such evidence had been served. Ms Baldwin informed the Court that she had not seen any report, was unaware of the identity or speciality of the foreshadowed expert and did not know what would be required to test that evidence or whether it would be necessary to obtain evidence in reply.
The Registrar sought to address those concerns by requiring the second defendant to serve the draft report upon which it sought to rely so as to enable the plaintiff to form a view as to whether she consented to or opposed the second defendant relying upon an expert report at that late stage. The draft report was to be served by 23 June 2017. On that date, the second defendant served the report of Mr Griffiths in respect of which leave is now sought.
Mr Griffiths is a qualified engineer holding a Bachelor of Mechanical Engineering and a Masters Degree in Biomedical Engineering and being a Fellow of the Institute of Engineers. His report dated 23 June 2017 answers specific questions as to the likely effect on the truck of the explosion of the tyre, including the likely mechanical result and the likely effects on the driver. He provides a series of opinions relating to the interrelationship between the explosion of the tyre and the alleged default in the haul road.
At the time the report was served, the solicitor for the plaintiff requested that the second defendant also serve correspondence including annexures and draft reports between it and Mr Griffiths. The service of that material reveals that the second defendant had in fact been in possession of a draft report from Mr Griffiths as early as 21 March 2017. Notwithstanding that fact, it was not until 1 June 2017 that the second defendant first informed Ms Baldwin that it was intending to attempt to reply on a liability expert report.
As noted in the submissions relied upon by the plaintiff in the present application, the Court must in determining whether to grant leave have regard to the provisions (including the mandatory considerations) of sections 56 and 58 of the Civil Procedure Act 2005 (NSW). Rule 31.28 of the Uniform Civil Procedure Rules 2005 relates specifically to the serving of experts' reports. That rule relevantly provides:
31.28 Disclosure of experts' reports and hospital reports
(cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)
(1) Each party must serve experts' reports and hospital reports on each other active party:
(a) in accordance with any order of the court, or
(b) if no such order is in force, in accordance with any relevant practice note, or
(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.
(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.
(3) Except by leave of the court, or by consent of the parties:
(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and
(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and
(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.
(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:
(a) that there are exceptional circumstances that warrant the granting of leave, or
(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
In accordance with that rule, the test for granting the leave sought is whether the second defendant has established the existence of exceptional circumstances. Mr Parker SC, who appears with Mr Brown for the plaintiff, drew my attention to the decision of the Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 in which that same expression was considered in the context of a rule which is relevantly similar to the rule under consideration in the present case.
The main judgment in that case was given by Campbell JA, with whom Tobias and Handley JJA agreed. His Honour said at [66] of the judgment:
Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
I had occasion to consider the same issue in proceedings for medical negligence in this Court in Harris v Bellemore (Supreme Court (NSW), McCallum J, 28 May 2009, unrep). The circumstances of that case were somewhat different from the present case, the report in question having been provided only after the commencement of the hearing of the proceedings. Significantly, however, the approach I took was to require the party seeking leave to rely upon the late report, in that case the plaintiff, to establish exceptional circumstances in accordance with the rule.
The Court of Appeal upheld that decision in Harris v Bellemore [2011] NSWCA 196 at [106]. Probably the only principle to arise from the Harris litigation relevantly for present purposes is that it is appropriate for the Court to consider an application for leave by reference to the plain language of the rule and, in particular, to inquire what are the exceptional circumstances relied upon for seeking to rely upon an expert report served late.
The provisions relating to the service of expert reports should not be considered to be unduly draconian. They were introduced in response to the Court's concern that the use of expert evidence was becoming cumbersome and unduly expensive in litigation of this kind. A raft of provisions relating to expert evidence reveals the Court's determination that the rules relating to experts should serve the provisions of the Civil Procedure Act to which I have referred, always remembering that the overriding purpose of the Rules is to enable the Court to determine the real issues in the proceedings in a manner that is just, quick and cheap.
The second defendant identified three features of the present case which it was submitted amount to exceptional circumstances within the meaning of the rule.
First, it was submitted that the physical circumstances surrounding the accident are unclear from the plaintiff's evidentiary statements and other places in which she has identified the nature of the alleged defect in the haul road. I was not taken to any particular unclear or inconsistent statement by the plaintiff but was informed that she has at various stages given different descriptions of the alleged defect including different descriptions of the extent or size of that defect. In the statement of claim it is described only as a "defect". I was informed that elsewhere the plaintiff has described it as a pothole and that her description of its size has varied enormously.
I do not think the existence of inconsistencies in descriptions of the circumstances surrounding an accident can be regarded as anything exceptional in personal injury litigation in this Court. It is, rather, the norm. As submitted by Mr Parker, disputes as to the facts are grist to the mill; the resolution of such disputes is very much what courts do in their day-to-day business.
The second matter identified as being exceptional was the difficulty encountered by the second defendant in obtaining access to a truck of the same model as the truck involved in the incident. That was because, by the time the expert indicated that he wished to inspect a model of the right kind of truck, there was no longer one in the possession of the second defendant and it was necessary to trace one. One has now been identified and could readily be made available to any expert retained by the plaintiff. I do not think that is a factor that contributes to any case of exceptional circumstances. Had the second defendant acted more promptly, it is possible that it would have been easier to obtain access to a model of the correct truck, although I accept that is a matter of speculation. In any event, I do not think it is anything particularly exceptional.
Finally, the second defendant submitted that there would be benefit to the Court in hearing the evidence of an appropriately qualified expert in circumstances where the second defendant submits that the plaintiff's expert is not appropriately qualified or at least brings to bear a different kind of expertise to that held by the expert now proposed by the second defendant. I would not regard that as a consideration that necessarily falls into the balance of what is and is not exceptional circumstances. Rather, it is a premise on which the application proceeds that the expert whose report is sought to be relied upon is one who is appropriately qualified and who is able to assist the Court with potentially relevant expertise. The disparity between the qualifications of the two experts is a circumstance to be taken into account, but I do not think it is particularly exceptional.
The explanation for the late service of the report is, in my respectful opinion, unsatisfactory. The solicitor for the second defendant gave evidence that he made a conscious decision not to retain an expert until completion of the service of the plaintiff's lay evidence. In fairness to the solicitor, it should be recorded that there was some confusion as to whether the plaintiff's evidence was closed. The plaintiff was in breach of the order to serve evidentiary statements by 20 October 2016 and did not serve one report until 26 October 2016. The solicitor for the second defendant then wrote on 3 November 2016 seeking confirmation as to whether the plaintiff had finalised her evidence.
The response was:
"There is likely to be one further statement. It is currently with the witness for execution. I anticipate being in a position to serve it next week."
However a statement was not served the following week and there was no further correspondence on the issue until the solicitor for the second defendant wrote again on 30 January 2017 in relation to the question of experts.
That letter said,
"'Despite our numerous requests, we have not been served with further lay evidence or received confirmation as to whether you still intend to rely on a further lay witness statement.
I am not aware of any additional 'numerous requests' other than those to which I have referred in correspondence. In any event, the letter said,
"In circumstances where the plaintiff has not completed the service of her lay evidence we have not been in a position to engage an appropriate expert on the liability."
With great respect to those representing the second defendant, who are experienced and capable solicitors, I do not think that was a fair characterisation of their position. They were not only able to engage an expert at an earlier point in time but in my opinion ought to have done so having regard to the directions that had been made.
To allow the second defendant at this late stage to rely upon the report of an expert mechanical engineer would, in my assessment, cause real prejudice to the plaintiff. It seems likely that it would result in the loss of the hearing date. As the evidence in these proceedings reveals, this Court is under a significant burden in allocating hearing dates with parties waiting up to a year and sometimes longer to obtain a date. From my own experience in the conduct of the defamation list, I am aware that parties often wait for more than a year to obtain a date in the order of six days, the kind of period sought in the present case.
The plaintiff's injuries were incurred in 2012, more than five years ago. It would be unfair, in my view, to force her on without any opportunity to obtain an expert report to respond to the proposed report by the second defendant. I am not persuaded that the reasons for late service of the report amount to exceptional circumstances within the meaning of the rule. For those reasons the application is refused.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 September 2017