Plaintiff v First Defendant

2 The proceeding was commenced on 28 August 2018. In his statement of claim,[1] Mr Keegan alleges that he was employed by Auscool to work at a building site in Travancore, where Hickory Group was the head contractor. He alleges that Auscool owed him a duty of care as his employer, and Hickory Group owed him a duty of care as the head contractor and occupier of the Travancore site. He claims to have suffered severe injuries as a result of an incident at the Travancore site on 22 February 2011, and further injury in a second incident at a different building site in Windsor on 8 February 2012. He alleges these injuries were caused by the negligence of Auscool, in respect of both incidents, and by Hickory Group, in relation to the 2011 incident only. He claims injuries to his neck, referred pain in his left shoulder, arm, hand and fingers, and consequential psychiatric injury, in particular depression.

3 Both defendants deny any liability for Mr Keegan's injuries. Unfortunately, the pleadings do not identify the real issues in dispute between the parties. It appears from the joint memorandum of issues, filed on 7 February 2020, that there is a factual dispute about the circumstances of the 2011 incident. The scope of that dispute was not clear when I heard the adjournment application. The statement of claim gives only very general particulars of the negligence alleged in relation to both incidents. There is also an issue about what, if any, injuries were caused by the 2011 incident and the 2012 incident, although again the scope of that dispute remains to be seen.

4 At the first directions hearing on 9 November 2018, the proceeding was listed for trial on 3 February 2020. On 18 October 2019, following an unsuccessful mediation, the plaintiff's solicitors advised the Court that the matter was ready to proceed to trial on 3 February 2020. The trial date was confirmed at a final directions hearing on 13 December 2019, at which the plaintiff was represented by counsel. On 23 January 2020, the plaintiff's solicitors filed a callover form, again confirming that the matter was ready for trial.

5 Unfortunately, no judge was available to commence the trial on 3 February. On 5 February 2020, the Court asked the parties if they wished the proceeding to commence before me on Monday 10 February 2020. The plaintiff's solicitors promptly replied that the plaintiff wished the matter to proceed on 10 February.

6 On Friday 7 February 2020, the plaintiff applied to vacate the trial date, in order that he could join as a third defendant the head contractor for the building site on which the 2012 incident is alleged to have occurred. The application was heard by Clayton JR that afternoon, and dismissed. She gave oral reasons for dismissing the application that included:

(a) the lack of any explanation of why the plaintiff had not joined the proposed third defendant at an earlier time;

(b) the 2012 incident had been pleaded in the original statement of claim, and the plaintiff's solicitors had been aware of the circumstances of the 2012 incident since at least April 2018 and likely beforehand;

(c) the dearth of information as to how it would be alleged that the proposed third defendant was negligent;

(d) the plaintiff was statute barred as against any additional defendant; and

(e) the defendants had been ready to begin the trial since the start of the week, and a trial judge had been allocated for the following Monday.

7 The trial proceeded before me on Monday 10 February. I granted leave to the plaintiff to further amend his statement of claim, to provide some particulars in relation to the 2012 incident. A jury was empanelled on Tuesday morning, and senior counsel for the plaintiff, Ron Meldrum QC, commenced his opening. After lunch on Tuesday, Mr Meldrum withdrew from the case, in circumstances that were both extraordinary and regrettable. I discharged the jury, and adjourned the trial to the following Monday 17 February 2020. The short adjournment was in order to give Richard Attiwill QC, who had just been retained as senior counsel for the plaintiff, time to prepare the case.

8 On the afternoon of 13 February 2020, the plaintiff's solicitors emailed my chambers, advising that they were instructed to seek a vacation of the trial. I heard the application the following afternoon.

9 The adjournment application was supported by an affidavit of Kehela Vandenberg, of Zaparas Lawyers, who has carriage of the proceeding for the plaintiff, under the supervision of the principal of the firm, Peter Zaparas. The affidavit set out some of the procedural history of the matter, although it was by no means complete. Ms Vandenberg deposed that Mr Meldrum and Peter Hamilton of counsel had been briefed from an early stage of the proceeding. She said that, having received advice from Mr Attiwill on 13 February 2020, she was concerned that the plaintiff's case was not ready for trial. She identified three matters of concern:

(a) the need to obtain further expert evidence, as to both liability and causation;

(b) the need to obtain discovery and issue subpoenas in relation to the 2012 incident;

(c) the need to further amend the pleadings.

10 At the hearing of the application, counsel for the plaintiff made a remarkably frank submission that the plaintiff's case had not been properly prepared, that Mr Keegan was presently not able to prosecute his case at the trial, and would be severely prejudiced if the trial proceeded on 17 February 2020. They emphasised that this had occurred through no fault of Mr Keegan. They submitted that the deficiencies in the preparation of the plaintiff's case were only identified by Mr Attiwill after he was briefed on 11 February 2020. The inevitable prejudice to the defendants of an adjournment could, it was submitted, be alleviated by a costs order, which Zaparas Lawyers was prepared to pay.

12 As was submitted for Mr Keegan, the application required me to balance a number of competing considerations, and to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) - to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9(1) of the Civil Procedure Act sets out objects to which I must have regard in furthering the overarching purpose, being:

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

13 For the purposes of s 9(1), the Court may have regard to the matters set out in s 9(2). Those matters include any prejudice that may be suffered by a party as a consequence of the order sought, and the extent to which the parties have had the benefit of legal advice and representation.

14 Auscool drew attention to some other relevant provisions of the Civil Procedure Act, including:

(a) the obligation in s 23 to use reasonable endeavours to narrow the issues in dispute;

(b) the obligation in s 24 to ensure that costs are reasonable and proportionate to the complexity and importance of the issues, and the amount in dispute;

(c) the obligation in s 25 to use reasonable endeavours to act promptly and minimise delay.

15 Both defendants relied on recent appellate authority to the effect that it is no longer the case that a party is entitled to an adjournment in which to amend a pleading or obtain further expert evidence, subject only to payment of costs thrown away. There are now limits on a party's ability to reformulate a claim during a proceeding, having regard to the unfair prejudice to other parties of delay, the efficient use of the Court's finite resources, and the public interest in the timely resolution of disputes.[2] The defendants referred to the considerations identified by the Court of Appeal in Northern Health v Kuipers[3] as being relevant to this kind of application:

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

16 I had regard to these matters, and to the objects set out in s 9(1) of the Civil Procedure Act, in determining Mr Keegan's application.

17 I also considered the decision of Clayton JR in Kinghorn v City of Kingston,[4] in which her Honour was persuaded to vacate a trial so that the plaintiff could obtain further expert evidence. The circumstances of that case - including that the plaintiff was a severely disabled child - are not the same as this one. I note also the Judicial Registrar's concern to ensure that no practitioner would assume from her decision 'that a lack of preparation for trial would inevitably result in vacation of the trial date'.[5]

18 I accepted the defendants' submission, that none of the Northern Health considerations favoured an adjournment:

(a) Granting the application would have caused a substantial delay in the determination of the proceeding. If the trial had been adjourned, it would probably not have been listed again until February or March 2021. That likely delay was particularly troubling given that it is already nine years since the first incident is alleged to have occurred.

(b) While neither defendant attempted to quantify the likely cost of an adjournment, it was obvious that it would have occasioned substantial wasted costs. There are two defendants, both of which had been ready to start the trial since 3 February 2020. Much of the value of the work done by their lawyers to prepare for trial would have been lost if the trial had been adjourned for a year or more. In addition, substantial further costs would have been incurred by all parties if the trial had been delayed for that time.

(c) Adjourning the trial would necessarily have involved some prejudice to both defendants. There is a factual dispute about the circumstances of the 2011 incident, and both defendants propose to call evidence about what occurred. The memories of those witnesses would not have been improved by delaying the trial another year. Hickory Group has no potential liability for the 2012 incident, and it would be burdensome to delay determination of the claim against it while the plaintiff reformulates his case in relation to that incident. Permitting the plaintiff to do so at this stage would have exposed Auscool to prejudice, given that any claim for contribution against a third party is probably statute barred. To put it another way, allowing Mr Keegan more time in which to prepare his case would have involved some injustice to both defendants.

(d) The application was made at a very late stage in the proceeding, after it had been called on for trial. The plaintiff's lawyers had repeatedly told the Court that the matter was ready for trial. Granting the adjournment would have been poor case management, in that it would not have facilitated the efficient, timely and cost-effective resolution of the real issues in dispute.

(e) There is a strong public interest in the timely resolution of disputes. Public confidence in the legal system is undermined when disputes drag on for many years before final hearing and determination. Granting the adjournment sought here would only have added to the perception that justice is too often delayed.

(f) In my view, no satisfactory explanation was given for seeking such a late adjournment of the trial. Ms Vandenberg's evidence did not go so far as to say that the forensic judgments made by the plaintiff's lawyers at earlier stages of the proceeding were necessarily wrong. Zaparas Lawyers remain the solicitors for the plaintiff, which I found difficult to reconcile with the submission that the case had not been properly prepared by them and the original counsel they had briefed. The adjournment was sought on the advice of the plaintiff's new senior counsel, in the same week that the Court of Appeal confirmed that a change in counsel is not an adequate explanation for a late amendment.[6]

19 On the other hand, it was submitted for Mr Keegan that an adjournment was necessary to achieve the just determination of his claim. I was mindful that the medical evidence to be adduced by Mr Keegan is to the effect that he suffers from a disabling neck injury that causes him chronic pain, anxiety, and depression. He claims substantial damages for pain and suffering and loss of enjoyment of life, and damages for economic loss in the order of $1 million. He has a lot at stake in this proceeding. Even so, I was not persuaded that an adjournment was necessary to achieve the just determination of his claim.

20 The first reason why an adjournment was said to be necessary was in order to obtain expert evidence with respect to the liability of both defendants for the first incident, and the liability of the first defendant for the second incident.

21 Until 10 February 2020, the plaintiff had proposed to rely on a report of John Dimopoulos, of Dohrmann Consulting, as to what the defendants reasonably could and should have done in relation to the first incident. Both defendants objected to the admissibility of his opinion, on grounds including that the opinion expressed was not within his area of expertise as a mechanical engineer. They submitted that the opinions expressed were simply matters of common sense, and questions on which the jury would be able to form its own view. Before I could hear and rule on that objection, the plaintiff's solicitors advised that he would not be relying on the report of Mr Dimopoulos.

22 I considered that to be a sensible concession. There is merit in the defendants' submission that, in this case, liability is not a proper subject matter for expert evidence. The question of what, if anything, a reasonable employer and head contractor could have done to avoid a foreseeable risk of injury to the plaintiff is a matter of common sense for the jury to determine. It was telling that neither counsel, nor Ms Vandenberg in her evidence, could identify a recognised discipline in which an expert was to be engaged.

23 In addition, there is a substantial factual dispute in relation to the 2011 incident. It may well be that liability will turn on what in fact happened, rather than what reasonable precautions could have been taken to avoid the risk of injury.

24 The second reason why an adjournment was sought was in order to obtain further expert evidence on the question of causation of Mr Keegan's injuries. It was submitted that he requires the opinion of an appropriately qualified medico-legal expert on the relationship between the injuries sustained as a result of the first incident and the second incident. Several questions were identified, which have not in terms been put to any of the plaintiff's numerous medico-legal experts. It was not suggested that there was any additional history or further imaging to be provided to these experts for their further opinion.

25 It is not uncommon in a common law personal injury proceeding that the medical issues at trial are more sharply focused than the questions addressed in the medical reports produced and served before trial. It is also common that the jury has to resolve a conflict in medical opinion. In this case, the plaintiff's medico-legal neurosurgeon, Mr Mohammed Awad, expresses a different opinion about causation than does the neurosurgeon to be called by Hickory Group, Dr Graeme Brazenor. Dr Brazenor opines that Mr Keegan's neck injury was caused solely by the 2012 incident, and that the 2011 incident had no significant effect. Dr Brazenor's report was served in late November 2019, and at that time the plaintiff's lawyers did not consider it necessary to obtain any report in response. A judgment was apparently made to leave resolution of the differences in medical opinion to the trial, when the respective medical witnesses will give evidence and be cross-examined. The fact that new counsel have taken a different view is not sufficient reason to adjourn the trial.

26 A further issue in relation to expert evidence was the late discovery and service of a report of Dr David Middleton, occupational health and rehabilitation consultant. Dr Middleton's supplementary report dated 27 December 2019 was not served on the defendants until 12 February 2020. In these circumstances, the plaintiff will require leave under r 44.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to adduce the opinions expressed in the supplementary report. The proper course is for him to seek that leave during the trial. Whether leave is granted will depend upon factors including the attitude of the defendants and the extent to which the report expresses new or different opinions from those in Dr Middleton's earlier report of 8 October 2019.

27 The third reason why it was said an adjournment was needed was in order to seek further discovery and to issue subpoenas in relation to the 2012 incident.

28 It is apparent from his affidavit in support of his serious injury application that Mr Keegan has given a clear and consistent account of the 2012 incident from the outset. The 2012 incident has been pleaded from the outset, Auscool discovered documents relevant to it, and it was the subject of interrogatories.[7] It was not seriously suggested that Auscool had not made proper discovery in relation to the incident. There is no reason to believe that it has not discovered all documents in its possession that are relevant to that incident.

29 As to subpoenas, directions were made for the date by which any subpoenas were to be issued. This date was extended twice, with the final deadline being 16 December 2019. The plaintiff's lawyers did not issue subpoenas directed to the head contractor for the Windsor site, where the second incident is alleged to have occurred. It was not explained what documents might now be sought from the head contractor, eight years after the incident occurred.

30 The amendments that I allowed to the statement of claim on 10 February 2020 included a further particular of negligence in relation to the 2012 incident, to the effect that Auscool had not warned Mr Keegan of the risk of concrete falling to the area where he was working. I allowed that amendment in circumstances where there was no suggestion by any party that it would necessitate an adjournment of the trial. I was therefore not attracted to the submission that, having allowed the amendment, I should adjourn the trial to allow for further discovery in relation to the newly alleged failure to warn.

31 The final reason why an adjournment was sought was that the statement of claim requires substantial further amendment, most critically in relation to the particulars of breach. The exact amendments proposed were not outlined, on the basis that they would depend on further expert evidence to be obtained and further documents to be produced.

32 The second further amended statement of claim filed on 10 February 2020 is the fourth version of the pleading filed in the proceeding. It follows a form that is often used in common law personal injuries pleadings drawn by competent and experienced counsel. Unfortunately, this form involves pleading most of the critical matters as particulars, to which a defendant is not required to plead.[8] In this proceeding, the statement of claim pleads as particulars both of the alleged incidents, the alleged breaches of duty, and the alleged injuries. Both defences contain bare denials and non-admissions that do not identify in any meaningful way the real issues in dispute. The pleadings in this case would have been much more informative if the statement of claim had set out 'in summary form a statement of all the material facts' on which the plaintiff relies,[9] rather than putting the detail of the claim in the particulars.

33 That said, the current version of the statement of claim is no less informative than the pleadings in many common law personal injuries matters that go to trial in this Court. The defendants do not complain that they do not know the case they have to meet. While the statement of claim could be significantly improved, including by identifying with precision how each defendant is alleged to have been negligent, I did not consider that this justified adjourning the trial.

34 For these reasons, I dismissed the application to vacate the trial. Zaparas Lawyers accepted that they should pay the defendants' costs of and incidental to the application, and so I made that order as to costs.

[1] As pleaded in the second further amended statement of claim filed 10 February 2020.

[2] AON Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175, [5] (French CJ), [111]-[113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361, [47]; Northern Health v Kuipers [2015] VSCA 172, [28]; Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [40].

[3] [2015] VSCA 172, [28].

[4] [2019] VSC 240.

[5] Kinghorn v City of Kingston [2019] VSC 240, [1].

[7] Plaintiff's interrogatories for the examination of the first defendant dated 8 April 2019, interrogatory 18; second defendant's interrogatories for the examination of the plaintiff dated 15 March 2019, interrogatories 12 and 13.

[8] Turner v Bulletin Newspaper Co. Pty Ltd [1974] HCA 25; (1974) 131 CLR 69, 80 (Barwick CJ); Mutton v Baker [2014] VSCA 43, [47].

[9] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 13.02(1)(a).