Appeal - Appeal from judgments entered on interlocutory summons for summary judgment - Application for extension of time to apply for leave to appeal - Substance of plaintiff's expert evidence - Deficient - Turns on own facts

First Defendant: Application for extension of time allowed. Appeal granted

Second Defendant: Application for extension of time refused

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

The Queen v Turner [1975] QB 834

Tremeer v City of Stirling & Anor [2002] WASCA 281

Anderson v Effexseven (1998) 10 ANZ Insurance Cases 61-424

Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18

Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450

Derby & Co Ltd & Ors v Weldon & Ors (9) [1991] 2 All ER 901

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563

Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994

Girando v Girando (1997) 18 WAR 450

Inform Formwork Pty Ltd v McInnes Concrete Services Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

Re J L Young Manufacturing Co Ltd [1990] 2 Ch 753

Sullivan v West Yorkshire Passenger Transport Executive [1985] 2 All ER 134

Wentworth v Attorney General (NSW) [1984] HCA 70; (1984) 154 CLR 518

1 WAGER DCJ: This is an application by the plaintiff for leave to appeal out of time against the Orders of Registrar Wallace granting summary judgment in favour of the first defendant and the second defendant delivered on 7 June 2005.

2 Order 6 r 11 of the District Court Rules states:

"11(1) A person affected by a judgment, order or a decision of a registrar may appeal therefrom to a judge in chambers.

(2) Such appeal shall be by a notice in writing to attend before a judge without a fresh summons, such notice to be given within five days after the decision complained of or such further time as may be allowed by a judge or by a registrar."

3 The appeal is a complete review de novo which is dealt with by way of a re-hearing of the application which led to the decision the subject of the appeal.

4 This appeal was filed 29 days after the relevant judgments. Although there are no set criteria for determining whether further time should be allowed, consideration should be given to:

(d) the extent of any prejudice to the respondent/s;

(e) whether the delay was intentional or contemptuous or the result of a bona fide mistake or blunder;

(f) whether the delay was that of the litigant or its lawyer;

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 521, Kirby J at 539 - 543.

5 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.

6 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.

7 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.

8 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.

9 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.

10 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.

11 The history of this matter reflects delay and limited compliance to court orders by the plaintiff over a period of nearly four years. The plaintiff breached the entry for trial milestone on four occasions prior to complying. Although both the first defendant and second defendant filed documents over this period, the time delays in doing so were a reaction to the plaintiff's delays rather than any act or intention on either the first or second defendants' parts to make the proceedings as protracted as they have been.

12 In a pre-trial conference on 8 September 2004, the learned Registrar ordered that ... (inter alia):

"1. Unless the plaintiff do by 4 o'clock pm 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;

2. In the event that the first defendant and second defendant shall have received the substance in writing of the plaintiff's expert evidence by 4 o'clock pm on 29 September 2004, the first defendant and the second defendant do deliver the substance in writing of their expert evidence by 31 October 2004;"

13 Twenty eight days later on 29 September 2004, at the deadline ordered, the following was received by both the first defendant and the second defendant from the plaintiff:

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 in 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."

14 No other details were provided to either the first defendant or the second defendant.

15 On 22 November 2004, the first defendant made application by chamber summons seeking an order that the plaintiff's claim against the first defendant be struck out as a result of the plaintiff's failure to comply with par 1 of the Orders made by the learned Registrar on 8 September 2004.

16 The second defendant also applied by chamber summons dated 24 November 2004 for leave to bring the application out of time and for summary judgment pursuant to Order 16 of the Rules of the Supreme Court. The two applications were heard by the learned Registrar on 15 March 2005 and her decision was delivered on 28 April 2005. The learned Registrar made the following orders (inter alia) on that date:

"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 made by Chamber Summons dated 22 November 2004 be adjourned sine die;

3. the application of the second defendant made by Chamber Summons dated 24 November 2004 be adjourned sine die;

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

17 The plaintiff did not apply in writing to the listings officer within 28 days. Both the first defendant and the second defendant re-listed their applications before the learned Registrar in chambers who, on 7 June 2005, ordered that there be judgment for the first defendant and the second defendant against the plaintiff on their respective applications.

18 On 6 July 2005, the plaintiff filed the present appeal against the learned Registrar's decision. The notice of appeal was listed for directions before a Registrar in chambers on 20 July 2005. He ordered that the plaintiff file and serve an application for extension of time within which to appeal, supported by affidavit evidence within seven (7) days. The plaintiff's documents, including the affidavit of Jenette Baker dated 5 August 2005, were filed on 8 August 2005, 19 days later. None of the documents filed on that date referred to the substance of the proposed expert evidence. In fact, the plaintiff has never provided any details or summary of the proposed expert evidence or any indication that expert evidence will be called at trial, except for the document of 29 September 2004 entitled "Substance of Plaintiff's Expert Evidence".

The requirement to give disclosure of expert evidence

19 Order 36A r 3 of the Rules of the Supreme Court states:

"3(1) This rule applies to expert evidence other than medical evidence in actions for personal injury.

(2) Except with the leave of the court or where all parties agree, no expert evidence may be adduced at the trial or hearing of the case or matter unless the party seeking to adduce the evidence has applied to the court to determine whether a direction should be given under this Rule and has complied with any direction given on the application ...

(4) Where an application has been made under this Rule, the court, if satisfied it is desirable to do so, may direct that ....

(b) the substance of all or any expert evidence that a party intends to adduce at the trial or hearing be disclosed in writing to such other parties and within such period as the court may specify."

20 The rule of evidence relating to the admissibility of expert testimony was set out by J W Smith in the notes to Carter & Bowe, 1 Smith LC 7th ed (1876) at p 577 and adopted in Clark v Ryan ([1960] HCA 42; 1960) 103 CLR 486 by Dixon CJ at 491.

"...It appears to be admitted that the opinion of witnesses possessing peculiar skills is admissible whenever the subject matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of the science as to require a course of previous habit, or study, in order to reach the attainment of the knowledge of it."

21 In Tremeer v City of Stirling & Anor [2002] WASCA 281 at [33], it was the judgment of the court that:

"The purpose of rules requiring disclosure of expert evidence is that of ensuring that no-one is taken by surprise at trial and that each party is to have an adequate opportunity to consider, investigate and, if necessary, answer expert evidence to be led by an opposing party."

22 At trial, in order for expert evidence to be admissible, there must be specific evidence of the training, study or expertise of the proposed expert witness expounding his or her specialised knowledge in relation to the relevant subject (Clark v Ryan (supra)). Further, the facts upon which the opinion is based must be known to the court. (The Queen v Turner [ 1975] QB 834 at 840.)

23 Although there is no specific requirement in O 36A that the substance of the facts upon which the opinion is based must be disclosed, nor any specific requirements that the name and precise qualification of the expert be disclosed, there is a requirement that the substance of all or any expert evidence that the party intends to adduce be provided. What is required by way of disclosure is significantly less than the evidence that is required at trial. However, the substance of all or any expert evidence must be disclosed.

Has the plaintiff provided adequate disclosure pursuant to O 36A Rules of the Supreme Court?

24 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".

25 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.

26 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.

The effect of non-compliance with the de bene esse order dated 28 April 2005

27 In Tremeer v City of Stirling & Anor (supra) at p 36 it was the judgment of the court that:

"There is no doubting the proposition that litigation is not merely a matter for the parties and that courts can, and will, take into account the need to avoid disruptions in their lists which inconvenience the courts and prejudice the interests of other litigants (Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 849, per Toohey and Gaudron JJ). But that does not mean that principles established in such cases as Cropper v Smith (1984) 26 Ch D 700 (in which Bowers LJ said at 710, that the object of the courts is to decide the rights of the parties and not punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with rights) can be ignored."

28 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.

29 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.

30 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.

31 Order 16 r 1 enables a defendant to apply to the court for summary judgment which may be ordered if the court is satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily. (see Seamen "Civil Procedure in Western Australia" at 16.1.4.)

32 A case must be very clear indeed to justify the summary intervention of the court to prevent the plaintiff from submitting his case for trial in the ordinary way and once it appears that there is a real question whether of fact or law and that the rights of the parties depend upon it, it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

Is there a serious question to be tried in relation to the first defendant?

33 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.

34 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 or vexatious.

35 The application for an extension of time in which to apply for leave to appeal is granted.

36 The appeal is allowed in relation to the first defendant.

37 The second defendant has further raised that the plaintiff answered the second defendant's interrogatories in a way that was in conflict with the plaintiff's pleadings in the amended statement of claim dated 1 September 2003 and that this conflict renders the plaintiff's case frivolous and vexatious. Specifically, the interrogatory and answer is:

"Question 1

During the material time, did the first defendant require you to use hand and/or power tools? If yes, state:

(f) for what period of time you used each tool on each occasion that you used it.

38 In the amended statement of claim, the plaintiff pleads in par 4:

"the second defendant is a company duly incorporated under the laws of Western Australia and at all material times:

(a) was a manufacturer and/or supplier of vibrating tools including grinders, chipping hammers and pneumatic drills ("vibrating tools");

39 All subsequent references in the plaintiff's pleadings to tools are to vibrating tools.

40 The second defendant's reference in interrogatories to "hand and/or power tools" could relate to tools of a different type from those referred to by the plaintiff as vibrating tools. The answer in the negative to the second defendant's first interrogatory does not support the proposition that the plaintiff's case is frivolous or vexatious.

Conclusions in relation to the second defendant

41 The plaintiff's case against the second defendant relies on the plaintiff adducing evidence that the second defendant did not take reasonable steps to ensure that the plaintiff was not exposed to any reasonably foreseeable risk of injury/hazards. It is pleaded that the tools supplied by the second defendant to the first defendant did not exhibit warnings and/or advice that their extended operation and/or use without adequate work breaks was likely to constitute a hazard and/or likely to cause injury to the operator. In order to support its pleadings, the plaintiff would need to call expert evidence in relation to the potential hazards and operation of the grinders. This is not an area upon which inexperienced persons are likely to prove capable of forming a correct judgment without the assistance of expert testimony. There is no suggestion by the plaintiff that there would or could be expert evidence of this type called at trial. There would be no scope for a court not to uphold the second defendant's contentions without expert testimony because a real question of fact or law does not remain. Without expert evidence, if the matter proceeded, the action would be frivolous or vexatious.

42 Accordingly, the application for an extension of time in which to apply for leave to appeal in respect of the second defendant is dismissed.