Plaintiff's substance of expert evidence - Deficient - whether judgment should be given in favour of each defendant - Turns on own facts

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

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

Doubikin Holdings Pty Ltd v Grail Pty Ltd (1989) 5 WAR 563

Drummond-Jackson v British Medical Association and Others [1970] 1 WLR 688

Dyson v Attorney-General [1911] 1 KB 410

Jones v Dunkel & Anor [1959] HCA 8; (1959) 101 CLR 298

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

Riches v Director of Public Prosecutions [1973] 1 WLR 1019

Trade Practices Commission v Arnotts Ltd (No 5) (1990) FCR 324

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

Anderson v Effexseven (1990) 10 ANZ Ins Cas 61- 424

Custom Credit Corporation Ltd v Miller [1964] QWN 2

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

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

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

Wentworth v A-G (NSW)(1984) [1984] HCA 70; 154 CLR 518

1 REGISTRAR WALLACE: Now before me are two applications, one brought by each defendant. The first defendant's application was made by chamber summons dated 22 November 2004, and on its face it seeks an order that the plaintiff's claim against the first defendant be struck out, consequential to par 1 of my orders made in pre-trial conference on 8 September 2004.

2 The second defendant's application was made by chamber summons dated 24 November 2004, and on its face it seeks leave to bring the application out of time and summary judgment pursuant to O 16 of the Rules of the Supreme Court. Each defendant also seeks the costs of its application. The two applications were heard by way of special appointment on 15 March 2005, when I reserved my decision.

3 It is appropriate for me to note at the outset that the plaintiff's action was commenced on 6 November 2001, and briefly to outline the nature of the plaintiff's claim against each of the two defendants.

4 The plaintiff's claim in this action against each defendant is for damages in respect of personal injury allegedly sustained during the course of carrying out his work between August 1997 and January 1998. According to the statement of claim, the plaintiff, who is currently aged 40 years, was at all material times employed by Kiam Corporation. Kiam Corporation contracted with the first defendant to hire the plaintiff's services to the first defendant at a processing plant at Naval Base, Kwinana, which is where the work in question was undertaken. It is pleaded that the first defendant had overall responsibility for supervising all work carried out at the plant, and that the first defendant provided direct supervision, direction and control to the plaintiff in the manner of performance of all work at the plant, including boilermaker/welding duties, the plaintiff's schedule and the plaintiff's hours of work. It is also pleaded that the first defendant had overall responsibility for the safety of all workers undertaking work at the plant.

5 The plaintiff pleads that the first defendant owed the plaintiff a duty of care to ensure, inter alia, that the plaintiff was not exposed to any reasonably foreseeable risks of injury and to ensure that it properly supervised and controlled the plaintiff's work so as not to expose the plaintiff to any reasonably foreseeable risk of injury.

6 As against the second defendant the plaintiff pleads that it was the manufacturer and/or supplier of vibrating tools, and that it supplied such vibrating tools to Kiam Corporation. The plaintiff pleads 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 to see that the plaintiff did not suffer injury or damage by reason of any dangers which were due to the use of the vibrating tools.

7 The plaintiff further pleads that, between August 1997 and January 1998, the first defendant required the plaintiff, in the course of his employment, regularly to work for between 70 and 80 hours per week, for extended periods of up to 63 days without a break, and to operate the vibrating tools supplied by the second defendant for excessive hours without any or any adequate work breaks.

8 It is pleaded that the vibrating tools did not exhibit warnings and/or advice that their extended operation or use, without adequate breaks, was likely to constitute a hazard or cause injury to the operator.

9 According to the plaintiff, the first defendant breached its duty of care to him by, inter alia, requiring him to work excessive hours and/or operate the vibrating tools for excessive hours, by failing to provide him with adequate work breaks, and generally requiring him to work in a manner which resulted in his being exposed to the risk of injury.

10 According to the plaintiff, 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 likely to be exposed by use of the vibrating tools it supplied to the Kiam Corporation, and failure to warn of the risks of injury associated with the use of its vibrating tools.

11 (For the sake of completeness, I note that the plaintiff also pleads a cause of action based on breach of statutory duty, but it is not necessary for the purpose of these reasons to examine that part of the pleadings in detail.)

12 The injuries which the plaintiff claims resulted from each defendant's breach of its duty of care include bilateral pain syndrome in the hands, wrists, elbows and forearms, reduced strength, muscle wasting, anxiety and depression. The plaintiff's treatment has included open bilateral carpal tunnel release surgery and narcotic based medication.

13 Turning now to consider the nature of the two applications to be determined, I note that there is significant overlap. Essentially, the two can be dealt with together insofar as they relate to the issue of the plaintiff's expert evidence. The second defendant's application for judgment has an additional ground (relating to a pleading issue) which will be addressed separately.

14 As a preliminary matter, I note that whilst, on the face of it, each application for judgment has been made at a very late stage in the proceedings, the circumstances are such that there has been no undue delay. Neither defendant's application will fail on that ground, therefore, and leave is granted to the second defendant to bring its O 16 application out of time.

15 It is now appropriate for me to examine precisely what has prompted the making of these two applications for judgment. On 8 September 2004, I presided on a pre-trial conference, during the course of which I made, inter alia, an order in the following terms:

"Unless 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."

16 As counsel for the first defendant observed at the hearing, I made the order in those terms so that if the plaintiff were to continue to fail to disclose the expert evidence that he would need to rely upon in order to succeed at trial, there would be a remedy available to both defendants. To that end, I ordered that there be liberty to apply on seven days' notice for a directions hearing.

17 It is apparent from the affidavit of Martina Ana Sedic, sworn on 26 November 2004 and filed in support of the second defendant's application, that at approximately 20 minutes to four on the afternoon of 29 September 2004, the plaintiff's solicitors faxed to the defendants a document which bore the heading "Substance of the Plaintiff's Expert Evidence".

18 Since the text runs to some 10 lines only, and given the assessment I am required to make, it is appropriate that I include it in full within the body of these reasons. It reads:

"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."

19 I note that the substance is signed by way of a stamp of the plaintiff's solicitors. No details are given in relation to the identity of the expert or his/her qualifications and particular areas of expertise. There is, importantly in my view, no statement of the factual evidence upon which the expert's opinion is based.

20 It was submitted at the hearing by counsel for each of the defendants that such document cannot be regarded as constituting a proper substance of the plaintiff's expert evidence. Accordingly, it was submitted, there has been essential non-compliance with my order, and such non-compliance would have the consequence of the plaintiff's being unable to adduce expert evidence at the trial.

21 It is appropriate at this point to ask, "Why does the court make orders for exchange of expert evidence pursuant to O 36A of the Rules of the Supreme Court?"

22 Expert evidence is not admissible for the purpose of providing guidance to a trial judge in respect of matters within his or her own ordinary capacity. Rather, the evidence of an expert is admissible in cases where the subject-matter of inquiry is such that inexperienced persons are unlikely to be capable of forming a correct judgment on it without assistance Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486.

23 In making my order requiring the plaintiff to disclose to the defendant the substance in writing of its expert evidence, I was satisfied that such evidence would be required for the plaintiff to have any prospect of succeeding (on the issue of liability against each defendant) at trial. That remains my view. It is clearly stated at par 33 of the judgment of the Full Court of the Supreme Court of Western Australia in Tremeer v City of Stirling and Anor [2002] WASCA 281 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."

24 It is also relevant to note at this point the words of Anderson J in the Full Court of the Supreme Court of Western Australia judgment in Pownall v Conlan Management Pty Ltd (1995) WAR 370. At p 390, his Honour stated:

"Expert evidence is to be judged like any other evidence. It must be comprehensible, and reach conclusions that are rationally-based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them."

25 Clark v Ryan (cited earlier) is authority for the proposition that it must be established that the expert witness has, by reason of his calling or course of study the appropriate area and level of expertise.

26 Except in a straightforward and uncomplicated case, the opinion of an expert witness is admissible only when the facts upon which the opinion is based are expressly stated by him; Trade Practices Commission v Arnotts Ltd (No 5) (1990) FCR 324.

27 It was submitted at the hearing by counsel for the plaintiff that Doubikin Holdings Pty Ltd v Grail Pty Ltd (1989) 5 WAR 563 is authority for the general proposition that a party need do no more than give the substance of the opinion and that the material upon which that opinion is based does not need to be provided. I have now had the opportunity to read the case in question, and I do not consider that the case is, in fact, authority for the proposition claimed.

28 In my opinion, the plaintiff's obligation in delivering the substance in writing of its expert evidence was to deliver a detailed summary of the material to be produced at trial, in accordance with the principles I have just identified.

29 I now turn to assess what the plaintiff actually delivered to the defendants by way of the substance of expert evidence, and I make the following observations:

(a) to the extent that a document headed "Substance of the Plaintiff's Expert Evidence" was delivered to each defendant prior to the deadline there was compliance in form with my order;

(b) the content of the document delivered, however, falls far short of the detailed substance of expert opinion required by the defendants in order for them to be able properly to brief their own experts.

(I take, by way of example, the following statement from the plaintiff's "substance of expert evidence":

"As a general proposition, the higher the frequency of vibration and the longer the exposure the greater the risk of injury."

In my view, that statement is vague, ambiguous and entirely unhelpful to the defendants.);

(c) there is no indication of the expert's qualifications, experience or area of particular expertise; and

(d) there is no statement of the facts relied upon by the expert in formulating his/her opinion.

30 Counsel for the first defendant submitted that the fact that the plaintiff had chosen not to file any affidavit in opposition to the application might reasonably be regarded as a situation of the type identified in Jones v Dunkel & Anor [1959] HCA 8; (1959) 101 CLR 298. That is, the paucity of detail provided might reasonably be taken as an indication that no expert report had yet been obtained by the plaintiff, and, given the fact that the plaintiff had had the opportunity to put before the court evidence in support of his position but had declined to do so, it might lead to my drawing an adverse inference in that regard.

31 Having expressed the view that I regard the plaintiff's substance of expert evidence as seriously inadequate, am I now bound to find:

(a) that my order has simply not been complied with;

(b) that the plaintiff must as a consequence, now be precluded from adducing expert evidence at the trial;

(c) that the inevitable consequence will be that the plaintiff's claim against each of the defendants must fail; and

(d) that judgment should therefore be given in favour of each defendant against the plaintiff today?

32 I acknowledge that Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 is authority for the proposition that if a claim is bound to fail it should be dismissed. Also, O 16 of the Rules of the Supreme Court clearly provides for the summary dismissal of a plaintiff's action in a proper case.

33 I note that in addition to the power to give judgment pursuant to O 16, the court has an inherent jurisdiction to stay or dismiss every action which it is satisfied is frivolous, vexatious or an abuse of the court's process.

34 Indeed, there is authority for the proposition that the dismissal of proceedings may be required for justice to be done, by preventing defendants from being harassed and put to expense by hopeless litigation: Riches v Director of Public Prosecutions [1973] 1 WLR 1019. That is, of course, the contention of the two defendants in this case.

35 Having said that, I must bear in mind that the court should exercise its coercive powers to terminate an action summarily only with the greatest care and circumspection, and only in the clearest case; Dyson v Attorney-General [1911] 1 KB 410. Also, I am mindful of the fact that there is clear High Court authority in the case of Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 for the principle that a case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff from submitting his claim for trial in the ordinary way.

36 In my view, it is also highly relevant for me to take into account the fact that this action has been on foot for some 3 ½ years, and that it is almost ready to go to trial.

37 The consequences to the plaintiff if I were now to dismiss his action on the basis of a deficiency in the substance of his expert evidence would be disastrous. His entire claim would stand forever barred and he would inevitably find himself facing very substantial legal costs without ever having had a trial on the merits.

38 On the other hand, I am extremely sympathetic to the position of the defendants, and I readily acknowledge that it would be wholly inappropriate for them to be required to proceed to trial in the current circumstances.

39 When I ask myself, "Is the very nature of the plaintiff's action so obviously untenable that it cannot possibly succeed?" The answer must be "No, it is not" - that is why the action has been able to progress to this stage. Yet the plaintiff cannot succeed at trial without proper expert evidence, and the defendants are entitled to know what that evidence will be and to be given the opportunity to obtain their own expert evidence.

40 In addressing this issue of the plaintiff's defective substance of expert evidence, I have formed the view that each application has, in the circumstances, been reasonably and properly brought - ie that the default is entirely on the plaintiff's part. I shall be making my orders on that basis.

41 At this point, it is probably appropriate for me to address the issue of the second defendant's application for judgment against the plaintiff based on a pleading point. Certainly, I was persuaded at the hearing by counsel for the second defendant that the plaintiff's claim, as presently pleaded, is untenable against the second defendant in the light of the plaintiff's recent answers to interrogatories (which are irreconcilable with the plaintiff's pleading).

42 For me properly to dismiss the plaintiff's claim against the second defendant on that basis, however, I would have to be satisfied that the plaintiff's statement of claim, even if leave to amend were granted, would be insufficient, if proved, to entitle the plaintiff to damages against the second defendant; Drummond-Jackson v British Medical Association and Others [1970] 1 WLR 688. I am not so satisfied, and I was not prepared at the hearing to entertain the plaintiff's counsel's oral application for leave to amend the statement of claim. Rather, I directed that any application for leave to amend be brought by way of chamber summons with supporting affidavit. Any such application will clearly stand or fall on its merits, but it seems to me that if the plaintiff were not to be granted leave to amend his claim against the second defendant would be bound to fail.

43 I have given careful consideration to the question of whether or not the position of each defendant might be properly safeguarded whilst allowing the plaintiff one last chance to proceed with his action. The course I have decided to take is to make orders that will have the effect of requiring that the evidence of the plaintiff's expert be taken de bene esse on a date in the near future, with the defendants being required to obtain their experts' reports only after the evidence of the plaintiff's expert has been given and recorded (either by transcript alone or by videotape). This will protect the defendants from being put to further unnecessary expense.

44 I realise that this decision will not be entirely to the plaintiff's satisfaction, but it is less harsh than my dismissing his entire action summarily. It does mean, of course, that if the plaintiff has not already engaged an expert he must do so immediately, or effectively abandon his action.

45 In having made this decision, I note that O 38 of the Rules of the Supreme Court is framed in very wide terms. That is, the court may in any cause or matter, if it appears necessary for the purposes of justice, make an order (in Form 25) for the examination of any witness on such terms as the court shall think fit, and on such terms as to costs as it shall think fit.

46 I shall hear counsel in relation to the appropriate form of such orders, and in relation to costs.