An important question about the management of a personal injury case fixed for hearing for five days commencing on 18 June 2018 has arisen for resolution by this Court. I say at once that I will not be the Trial Judge as I will be absent on leave when the trial is to be conducted. My enquiries overnight have indicated that the matter has not been allocated to any particular Judge at this stage, which is not unusual in the general list of the Common Law Division. The case is estimated to take five days or less. The allocation of the matter to a Trial Judge is likely to depend upon the exigencies of the List as they then appear to the List Judge in the period leading up to the hearing.
The matter was set down for hearing after appropriate case management by the Registrar on 6 November 2017. I think it can be fairly said the case is one of some complexity. The plaintiff's cause of action is in respect of a serious head injury he suffered at the Christmas Carnival at Wingham on 9 December 2010. That event was conducted by the Wingham Chamber of Commerce Incorporated, which is the defendant. The plaintiff was on the defendant's premises in the course of his business as a showman operating a sideshow for reward and for the enjoyment of the patrons of the Christmas Carnival. At about the scheduled end of the carnival a riot broke out involving many apparently intoxicated persons, some of whom armed themselves with metal stakes or star pickets and engaged in gratuitous criminal violence.
The plaintiff, who as I understand the facts, may have been seeking to intervene for the protection of others, was attacked by one such drunken thug, struck with a star picket and suffered very serious head injuries. Without downplaying the seriousness of the ongoing consequences for him as reflected in the parties' agreement as to some heads of damage disclosed in the evidence before me, he has made what at the time must have seemed an unlikely, if not remarkable, recovery.
[3]
The issue
The problem that has arisen is that notwithstanding the attempts of experienced counsel and solicitors to reduce the issues for determination by the trial judge, liability remains in hot contest. Each side has armed themselves with the opinion of a security expert: on the plaintiff's side a Mr Smith; and on the defendant's side, a Dr Zalewski. In compliance with the rules and the usual practice, Mr Smith and Dr Zalewski met in conference and produced a joint report that happily produced much agreement on the issues for their consideration, but not complete agreement.
From my discussion this morning with Mr Johnson of Counsel for the plaintiff and Mr Parker of Senior Counsel for the defendant that the differences between the experts relate to what a reasonable person in the position of the defendant would have perceived about the risk that materialised from a properly conducted risk assessment and what the response of that reasonable person would have been in accordance with section 5B(1)(c) of the Civil Liability Act 2002 (NSW). No doubt expert evidence can inform the answer to those questions.
Unhappily, as the solicitor for the defendant frankly acknowledges that when the matter was before the Registrar on 6 November 2017, despite checking the availability of lay witnesses and counsel, he overlooked checking Dr Zalewski's available dates. From reading the affidavit that may have arisen out of an unfortunate misapprehension about whether Dr Zalewski was going to be required for cross-examination.
It has led to a problem. Dr Zalewski will be out of the country during the trial, him having arranged and paid for an overseas holiday in blissful ignorance that he would be required to give evidence in this case. He will be in Canada during the hearing and would be available to participate in concurrent evidence if his attendance was permitted by audio visual link (AVL). The defendant moves for an order to that effect. The plaintiff objects to that course.
Mr Johnson submits that the cross-examination of the experts may involve as much as a full hearing day; that there are a large number of discovered documents that need to be put to Dr Zalewski to test his opinion in relation to the areas of disagreement; and it is said that the cross examination on the documents could not be conveniently done if Dr Zalewski is in a remote location. Counsel for the plaintiff submits unless the expert is here in person, the plaintiff will not be able to put his case fully and robustly.
[4]
A suggested compromise
I should say that the parties have agreed that if it is otherwise convenient to the Court, having regard to the requirements of ss 56-60 of the Civil Procedure Act 2005 (NSW), they are content to take all available evidence during the week commencing 18 June 2018 and then allow the matter to stand over for further hearing on some date or dates suitable to the Trial Judge after Dr Zalewski has returned to the country.
As I have said, one difficulty with that approach is that because the identity of the trial judge is not currently ascertainable, it is unknown what that judge's other commitments subsequent to the week of 18 June 2018 are or will be. Therefore it is impossible to say when the judge could resume the part-heard hearing in this case.
[5]
Submissions of the plaintiff
Mr Johnson has referred me to authority in relation to questions of this kind and in particular to the decision of McDougall J in Walker Charlotte Street v Rio Tinto Services [2014] NSWSC 535. Whereas one always benefits from the insights of that wise judge, essentially every case must turn on its own facts and the matter must be one for the exercise of the judge's discretion in all of the circumstances of the particular case. I notice in that case McDougall J disallowed the application for taking evidence by AVL and directed that the evidence be taken on examination by the trial judge as examiner at a convenient time. That was essentially because the witness concerned was a central lay witness whose credit was very much in issue and at stake. Justice could not be done to the parties, or perhaps to the witness, if those issues were investigated by way of AVL. The present case concerns, of course, as I have said, an expert and whereas there may be robust cross-examination I doubt it could be said that Dr Zalewski's credit was very much in issue.
I did explore with Mr Johnson the prospect of compiling a bundle of potentially relevant documents that could be forwarded to Dr Zalewski in electronic form, to be accessed by him during the cross-examination. Mr Johnson indicated that the documents are potentially voluminous, involving police statements and documents produced by the defendant in relation to this annual event over many prior years. In particular, as I understand it, evidence will be led at the trial that there was a not dissimilar disorderly incident in the previous year and in other years. These may be significant factors, of course, in assessing the issues of the foreseeability and preventability. Mr Johnson tells me that those matters will need to be investigated in quite some detail.
[6]
Defendant's submissions
Dr Zalewski is prepared to make himself available for cross-examination by AVL during his holiday. The defendant's solicitor, Mr Jason Francl has demonstrated from his affidavit that arrangements can be made for an AVL to be established with each of the various hotels where the expert will be staying on each day of the week of 18 June 2018 in various locations in the Canadian Rocky Mountains. In particular, it seems that Dr Zalewski's itinerary would permit him to be available from his hotel at Lake Louise in the Province of Alberta at 10:00 am on Wednesday, 20 June 2018. It seems to me that that may be a suitable date and time given that it would allow a full day, if Dr Zalewski is up to it, after his travels, for the expert evidence.
As I understand the affidavit, it will be about 6:00 pm on the previous evening in Canada at 10:00 am on the Wednesday morning here. If the evidence goes for the full day, as Mr Johnson thinks it may (having regard to the importance of the issues for the parties that may well be correct) we will be asking Dr Zalewski to be giving evidence between 6:00 pm and 11:00 pm, which may not be entirely ideal in terms of him maintaining his concentration in cross-examination, even allowing for the usual breaks.
[7]
Decision
There is the risk that if the concurrent evidence might take a day, it might take more than a day, which will lead to inconvenience not only for the witness but more importantly for the parties and the Court if the evidence cannot readily resume at 10:00 am Sydney time on Thursday, 21 June 2018.
Fixing a time that would suit Dr Zalewski in Canada is basically an arbitrary exercise. Although the Wednesday morning appeals to me, because it is the middle of the week, and thus enables lay evidence to be taken on the Monday and Tuesday, it is well recognised that it is eminently preferable for the modern procedures of taking concurrent expert evidence that all of the lay evidence of both sides touching upon the issues relevant to the opinion of experts should be taken before the experts are called to give concurrent evidence. In this way the differences between the parties in terms of primary fact are much better identified and usually greatly reduced when compared with the perception of the parties at the commencement of the trial. That facilitates the expeditious taking of expert evidence because it facilitates better directed questioning of the experts.
Although the general rule is that all witnesses should give their evidence orally in Court, I am not of the view that evidence by AVL is, or should be, an infrequent or rare exception. It seems to me that the experience of the common law Judges, both in the civil and criminal sides of the jurisdiction, is that evidence by AVL is quite common these days. Although the requirements of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and of the rules must be observed, once engaged, the exercise of the discretion to permit evidence by that means will not be applied sparingly, at least not necessarily.
Given what I have been told about the nature of the lay evidence yet to be called, it may not be in the best interests of the conduct of the case that the evidence of Dr Zalewski be taken at the fixed time of 10:00 am on Wednesday, 20 June 2018 concurrently with the evidence of Mr Smith if there is a real risk that not all the lay evidence will be in. That is not to say that practice must be rigidly adhered to in every case but it is a question which has to be balanced in the overall scheme of things.
Although I am of the view that I could direct that the evidence proceed on the Wednesday, with Dr Zalewski participating by AVL, the considerations are evenly balanced. In the end, acknowledging that it will be better and more efficient if Dr Zalewski's evidence is taken in person and as the parties have agreed about the preferable course, I have decided that I should make a direction confirming the hearing is to commence on 18 June 2018, but permitting the concurrent expert evidence of Mr Smith and Dr Zalewski to be taken at a further hearing, on a date to be fixed by the trial judge suitable to the parties and the Court.
[8]
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Decision last updated: 30 May 2018