Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : PRATT -v- HISMELT CORPORATION PTY LIMITED & ANOR [2005] WADC 225

Procedure - Whether claim was frivolous, vexatious or an abuse of process - Whether claim should be struck out - No disclosure of the nature of non­medical expert evidence to be adduced - Whether claim can be maintained without non­medical expert evidence - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 16, O 36A r 2, O 36A r 3

2 BUSS JA: The appellant applies for leave to appeal against Wager DCJ's decision allowing the respondent's appeal against Registrar Wallace's order in the District Court that there be judgment for the appellant.

3 In the District Court action, the respondent was the plaintiff, and the appellant was the first defendant. Hitachi Power Tools Australia Pty Ltd (Hitachi), which is not a party to this appeal, was the second defendant. The nature of the respondent's claim is set out conveniently in the reasons of the learned Judge, at [5] - [10]:

The plaintiff's action was commenced on 6 November 2001. The action against each defendant is for damages in relation to personal injury allegedly sustained while carrying out work between August 1997 and January 1998.

The amended statement of claim alleges that the plaintiff was employed by Kiam Corporation. Kiam Corporation contracted with the first defendant to provide the plaintiff's services at a processing plant in Kwinana. It is pleaded that the first defendant had overall responsibility for supervising all work conducted by all workers and provided direct supervision of, direction and control to the plaintiff in his manner of performance of all work undertaken at the premises including boiler making/welding duties, his work schedule and hours of work undertaken and had overall responsibility for the safety of all workers at the premises.

The plaintiff pleads that the first defendant owed a duty of care to take reasonable steps to ensure that the plaintiff was not exposed to any reasonably foreseeable risk of injury and to ensure that it properly supervised, directed and controlled work undertaken at the premises so as not to expose the plaintiff to any reasonably foreseeable risks of injury.

It is pleaded that the first defendant breached its duty of care to him by requiring him to regularly work between 70 to 80 hours per week using vibrating grinders supplied by the second defendant without any adequate work breaks and generally required him to work in a manner which resulted in him being exposed to the risk of injury.

In respect of the second defendant, the plaintiff pleads it was the manufacturer and/or supplier of vibrating tools including grinders and that it had supplied grinders to Kiam Corporation. It is pleaded that the second defendant owed a duty of care to the plaintiff to take reasonable steps to ensure that the plaintiff was not exposed to any reasonably foreseeable risk of injury and to take such care as was necessary so that the plaintiff did not suffer injury or damage by reason of any dangers due to the use of the vibrating grinders. The plaintiff pleads that the second defendant breached

its duty of care to him by failing adequately to identify and/or reduce the hazards to which the plaintiff was exposed by using the vibrating grinders.

The plaintiff pleads that he experienced injury as a result of using the vibrating grinders for excessive hours ('the accident') and that the accident was caused by the negligence of the first defendant, its servants and/or agents and that both the first and second defendants breached their duties of care. Breach of statutory duty is also pleaded.

4 On 16 June 2004, Registrar Wallace ordered, at a pre-trial conference, relevantly, that:

[E]ach party have leave to adduce expert evidence at the trial of this action, the substance in writing whereof to be delivered by the plaintiff by 3 August 2004 and the first and second defendants by 31 August 2004.

5 The respondent did not comply with this order, and it came on for hearing again before Registrar Wallace on 8 September 2004. On that day, the Registrar ordered, relevantly, that:

[U]nless the plaintiff do by 4.00pm on 29 September 2004 deliver to the defendants the substance in writing of his expert evidence, the plaintiff be thereafter precluded from adducing expert evidence at the trial of this action.

6 On 29 September 2004, the respondent served on the appellant and Hitachi a document entitled 'Substance of the Plaintiff['s] Expert Evidence', which said:

Take notice that the plaintiff intends to produce [sic] expert evidence at the trial of this matter of which the substance is as follows:

1. The use of grinders in industry has been known to cause arm and hand injuries in workers and their use is known to be a significant risk in the contraction of arm and hand injuries by workers.
2. Industry has been aware of these dangers for many years prior to the date the plaintiff alleges the contraction of his injuries as a result of exposure to vibrating equipment.
3. As a general proposition the higher the frequency of vibration and the longer the exposure, the greater the risk of injury.
4. Introduction of regular breaks from the use of such equipment or rotating workers through jobs such that they are not continually exposed to vibration would significantly reduce the risk of injury.

7 The appellant, pursuant to the Registrar's order of 8 September 2004, applied by chamber summons, dated 22 November 2004, for the statement of claim to be struck out and for judgment to be entered for the appellant. An affidavit dated 19 November 2004, sworn on behalf of the appellant and in support of that application, said the respondent had not, to date, served any further or better substance of expert evidence. Hitachi applied, by chamber summons dated 24 November 2004, for leave to bring the application out of time and for summary judgment pursuant to O 16 of the Rules of the Supreme Court 1971 (WA). After hearing the applications on 15 March 2005, the Registrar delivered written reasons (Pratt v Hismelt Corporation Pty Ltd [2005] WADC 80) on 28 April 2005, and ordered, relevantly, that:

1. the evidence of the plaintiff's non-medical expert be taken de bene esse, and to that end the plaintiff do within 28 days apply in writing to the Listings Officer for a hearing date, giving all parties' unavailable dates;
2. the application of the first defendant...be adjourned sine die;
3. the application of the second defendant...be adjourned sine die;

1. there be liberty to apply on 7 days' notice to have the first defendant's/second defendant's application/s relisted before Registrar Wallace;

8 The respondent did not apply for a hearing date within the stipulated period and consequently the appellant and Hitachi re-listed their applications before the Registrar. On 7 June 2005, the Registrar ordered that there be judgment for the appellant on its application, and also judgment for Hitachi on its summary judgment application.

9 The respondent appealed, out of time, against the Registrar's decision to enter judgment against him. Wager DCJ heard the appeal. In relation to the appellant, her Honour allowed an extension of time within which to apply for leave to appeal, granted leave, and allowed the appeal. In relation to Hitachi, her Honour dismissed the application for an extension of time within which to apply for leave to appeal.

10 The appellant applies for leave to appeal against the learned Judge's decision to allow the respondent's appeal against the Registrar's order that there be judgment for the appellant.

11 On 1 May 2006, Pullin JA ordered that the application for leave be heard with the appeal.

1. in determining that there was a serious issue to be tried between [the respondent] and [the appellant] when:

1.1 her Honour found [the respondent] did not serve the substance of his expert evidence in writing before 29 September 2004 (paragraphs 26 and 30 of her Honour's reasons for decision)

1.2 her Honour found that [the respondent] was unable to or had chosen not to call expert evidence (paragraph 30 of the reasons for decision)

1.3 her Honour found that (paragraph 41 of the reasons for decision):

1.3.1 [the respondent's] case against [Hitachi] relied upon [the respondent] adducing expert evidence in relation to the potential hazards of operating grinders

1.3.2 the issue was not one upon which inexperienced people could form a correct judgment without the assistance of expert testimony

1.3.3 without that expert evidence, the action against [Hitachi] would be frivolous or vexatious if it was allowed to proceed

1.4 her Honour ought to have found that [the respondent's] case against [the appellant] also relied upon [the respondent] adducing expert evidence in relation to the potential hazards of operating grinders.

13 The learned Judge's decision was interlocutory and leave to appeal is therefore required.

14 In general, an applicant for leave must demonstrate that the relevant decision was wrong or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would occur if the decision were left unreversed. See Wilson v Metaxas [1989] WAR 285 at 294. It must be emphasised, however, that these are not rigid or exhaustive requirements, and leave may be granted if, in all the circumstances, it is in the interests of justice to grant leave. See The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

15 The learned Judge found, at [24] - [26], that the respondent had not provided adequate disclosure pursuant to O 36A of the Rules of the Supreme Court:

Although there is no requirement that the name and specific qualifications of the expert be disclosed, the plaintiff's document does not give any indication of the discipline of the expert or experts it proposes to call. It is unclear whether the expert is an engineer, a doctor, or a fabricator of machine tools. There is no indication to the first defendant or the second defendant of the type of evidence to be adduced. Further, there is no definition of 'grinder', nor is there a definition of 'industry'.

Paragraph 2 states 'Industry has been aware of these dangers for many years...' The length of time, the type of danger and whether industry refers to the manufacturer of the grinder or the supervision of the worker who uses the grinder is unclear. The type of equipment referred to, the degree of vibration, the type of injury and the proposed work practices that may address these concerns are not specified.

The 'Substance of the Plaintiff's Expert Evidence' is so vague that inexperienced persons are given virtually no assistance in relation to the nature of the science, the nature of the study (if appropriate) and how the opinion relates to the facts in issue, nor does it allow the opposing party to properly investigate expert evidence of its own.

16 The learned Judge made the following findings, at [28] - [30], regarding the respondent's non-compliance with the de bene esse order dated 28 April 2005:

The plaintiff's failure to comply with the learned Registrar's order of 28 April 2005 to apply within 28 days in writing to the Listings Officer for a hearing date for evidence de bene esse is a failure to comply with a case management order only.

It is, however, relevant that since the date of the failure to comply with the order, the plaintiff has not made any application in relation to the order, has not sought an extension of time to comply with the order and, at this de novo hearing has not filed any affidavit evidence in relation to the substance of expert evidence, nor indicated in any way any details of potential evidence.

In order to have provided the document to the first defendant and second defendant on 29 September 2004, the plaintiff must have sought the opinion of a proposed expert witness. Given that adequate disclosure in relation to the substance of the evidence has not been provided, nor has any explanation been offered for its absence, the only inferences to be drawn are that the plaintiff is either unable to or chooses not to call expert evidence. Regardless of whether it is an inability or a choice not to call expert evidence, the lack of evidence or any indication of the substance of the evidence and its effect on the plaintiff's case must be considered.

17 The learned Judge then set out the applicable principles in relation to summary judgment applications. I note, however, that, unlike Hitachi, the appellant had not applied for summary judgment, but for an order that the respondent's claim be struck out and for judgment to be entered for the appellant. Her Honour found, at [33] - [34], that there was a serious question to be tried in relation to the appellant:

The issue in relation to the first defendant is whether the plaintiff was properly supervised, directed and controlled in work undertaken at the premises so as not to be exposed to any reasonably foreseeable risks of injury. It is pleaded that the duty of care was breached because the plaintiff was required to regularly work between 70 to 80 hours per week using vibrating grinders without any adequate work breaks, and that he was generally required to work in a manner which resulted in him being exposed to the risk of injury.

Evidence could be adduced to support the pleadings by the plaintiff, co-workers and others who have been associated with the type of operation conducted by the first defendant. These are not issues that would necessarily require expert evidence to be given in order for the issue to be proven. Accordingly, even if expert evidence is not adduced by the plaintiff at trial, there would still be a serious question to be tried and there is the potential for the plaintiff to adduce relevant and admissible evidence on the issues at trial. Regardless of the prejudice to the first defendant and the failure to comply with the order by the learned Registrar, the matter warrants a hearing and cannot be dismissed as being frivolous and vexatious.

18 Counsel for the appellant accepted, properly, that Registrar Wallace struck out the respondent's claim and entered judgment for the appellant on the ground that the respondent's claim was frivolous, vexatious or an abuse of process.

19 Order 36A r 2 of the Rules of the Supreme Court applies to medical evidence in actions for personal injuries. Order 36A r 3 applies to expert evidence, other than medical evidence, in such actions.

20 Counsel for the appellant also accepted that Registrar Wallace's orders related to non-medical expert evidence. Counsel said, in the course of argument (ts 6 - 7):

The [appellant] could adduce ... without leave an opinion or evidence from a doctor saying the [appellant] has worked these hours with this equipment and I find on the basis of ... a physical examination of the [appellant] that that is most likely the cause of his injuries. That would be expert evidence that does not require leave to be adduced ...

21 At a trial of the District Court action, non-medical expert evidence would have been relevant to the issue of causation. In particular, whether the vibrations produced by the grinders which the respondent used in his work, in the circumstances of their use, including the duration and frequency of use, caused or materially contributed to his alleged injuries. A subsidiary question, in respect of which non-medical expert evidence would have been relevant, is whether the grinders in question had a tendency or capacity, if used in circumstances, including for a duration and frequency, comparable to those applicable to the respondent, to cause or materially contribute to injuries of the kind which he allegedly suffered. Generally, see Wigmore on Evidence (Chadbourn revision, vol 2, 1979) at 523 - 524 [441].

22 In my opinion, the relevant orders made by Registrar Wallace did not preclude the respondent from adducing evidence from himself, co-workers and others to the effect that they had used the grinders in question and that, based upon their personal experience, the equipment produced vibrations, of a specified nature and extent, which had a particular physical effect on them. Also, the Registrar's orders did not preclude the respondent from calling suitably qualified medical practitioners (for example, occupational physicians) to give evidence as to their opinions, and as to findings and opinions recorded in medical literature, of the effect on workers of relevant exposure to vibrations caused by the grinders in question or comparable equipment. If the respondent called evidence, of the kind I have just described, at a trial of the District Court action, it could not be concluded, on the materials before Registrar Wallace, the learned Judge or this Court, that the respondent's claim had no reasonable prospect of success. Certainly, it could not be concluded that the action was frivolous, vexatious or an abuse of process.

23 The learned Judge's decision, allowing the respondent's appeal against Registrar Wallace's order, was, with respect, correct. Her Honour's decision was not wrong or even attended with sufficient doubt to justify the grant of leave. The grounds of appeal do not have a reasonable prospect of success.