Mr Schofield suffered serious injury to both of his shoulders when he slipped and fell in a supermarket at Bondi in August 2013. He has since had five surgeries to his shoulders, most recently in August 2016. He will require further surgery. Breach of duty has been admitted. The matter is listed for hearing in November 2017. The parties have engaged orthopaedic and psychiatric experts, who have produced joint reports. A joint report from accounting experts is imminent. Mr Schofield had also served a 15 August 2016 report from Dr Ting, an occupational therapist, which was considered by the joint experts.
On 10 April 2017 Registrar Bradford made orders in preparation for the November hearing, which required the expert conclaves to be conducted, with joint reports be issued to by 16 June, for Mr Sutton to serve refresher medical evidence by 30 June and the defendant to serve such evidence by 31 August.
On 31 July 2017 without prior notice or application to the Court, Mr Schofield served a report of Dr Dias, a consultant occupational physician.
Practice Note SC CL 5 deals with expert evidence called in personal injury actions. It identifies the Court's concern at the number of experts qualified and called, whose opinions may be overlapping and the time, cost and delay involved. It is provided at clause 34 of the Practice Note that the number of expert witnesses giving evidence on behalf of a party shall be limited to "one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability".
The defendant objected to evidence being called from Dr Dias and by motion filed on 3 August 2017, sought an order that his report be excluded from being admitted at the hearing and in the alternative, that the hearing be vacated, with a costs order in its favour on an indemnity basis, being made forthwith. The reasons for the defendant's motion were explained in the supporting affidavit of Mr Moroney, the defendant's solicitor, and were developed in oral submissions.
The issues arising included that Dr Dias had been instructed with correspondence and reports of other doctors which had not been served on the defendant, or considered by the joint experts; that the joint experts had not had an opportunity to consider Dr Dias' report; that the defendant had not had an opportunity to respond to his report; and that Dr Dias had been engaged in order to undermine the common views which the orthopaedic experts had reached about future treatment and economic loss and accordingly, to undermine the Court's processes.
Further, given Mr Sutton's foreshadowed application to amend and extend his claim for economic incapacity, medical treatment costs and future surgery, the defendant's position was that Mr Schofield needed to be examined by a rehabilitation specialist, Dr Dalton. That would require the hearing to be vacated and it was proposed that Drs Dias and Dalton should then also produce a joint report, which the other experts would be given an opportunity to consider.
By the time of the hearing of the motion, the amended statement of particulars had been served, as well as other reports of treating doctors, Dr Sonnabend, Dr Tan, Dr Burne and a supplementary report of Dr Diaz of 28 August. A further motion was filed at the hearing, objecting also to reliance on those reports and the amended statement of particulars.
In a further affidavit Mr Moroney explained the steps he had taken to ascertain whether Mr Schofield's experts and those the defendant sought to engage, Dr Dalton, Dr Mitchell, an occupational physician and Mr Hook, a vocational counsellor, could undertake the further work required of them, before the November hearing. It emerged that further work would also have to be undertaken by the accounting experts, in relation to the amended particulars.
For Mr Schofield, the reason for engaging Dr Dias was explained to have been what amounted to representative error, namely a late appreciation arrived at by counsel only in June 2017 that there was an evidentiary gap in his case. It was also accepted that in the circumstances, an application ought to have been made under r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), for leave to serve Dr Dias' reports. The other reports were argued to have fallen within r 31.28(4)(a), as merely updating earlier reports already served, although it was accepted that in their reports Drs Tan and Dr Burne may have gone beyond providing a treating doctor's report, given opinions they had expressed as to Mr Schofield's future.
Leave is not to be granted under r 31.28, unless "exceptional circumstances" warranting the grant of leave are established.
The defendant's case was that such circumstances had not been demonstrated. The meaning of that phrase arose to be considered in San v Rumble (No 2) [2007] NSWCA 259, there in the context of the s 153(1) of the Motor Accidents Compensation Act 1999 (NSW). Reference was there made at [62] to Oreb v Willcock (2005) 146 FCR 237; [2005] FCAFC 196 at [66], where Lander J considered that the ordinary meaning of the word "exceptional circumstances … must be unusual or out of the ordinary". Reference was also made to Ho v Professional Services Review Committee No 295 [2007] FCA 388 where Rares J said at [26] that exceptional circumstances:
"… can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional."
For his part, Mr Schofield contended that exceptional circumstances did exist, but opposed the hearing being vacated, despite the late service of the amended particulars and the reports, contending that what had to be done by way of further preparation for the hearing in November, including examination, preparation of further reports and further expert conclaves, could all be accommodated within the time available. As to the rehabilitation expert Dr Dalton, who could not examine him within that time frame, Mr Schofield's position was that the defendant should engage another expert.
I concluded that justice required that the leave Mr Scholfield sought should be given, but that the hearing had to be vacated, as a result. These are the reasons for those conclusions.
Both the Court and the parties are bound by the obligations imposed by s 56 of the Civil Procedure Act 2005 (NSW), which requires that the overriding purpose there specified, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, be given effect by the Court, when exercising any of its powers under the Act and the Rules. Section 57 requires that the for the purpose of furthering that overriding purpose, the proceedings must be managed having regard to the objects specified in s 57(1), namely:
"(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."
In deciding whether to make any order or direction for the management of proceedings, the Court must also seek to act in accordance with what the dictates of justice require and in doing so, must take into account the matters specified in s 57(2)(b):
"(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
Bearing those considerations in mind, I concluded that a combination of matters had established the exceptional circumstances which were in issue, but that the result of that conclusion was that justice also required that the hearing be vacated.
On the evidence, Mr Schofield's medical conditions are complex and will continue to cause him serious problems in the years ahead, which are not entirely predictable. So far has undergone five surgical procedures and, the experts agree, will require more, given the nature of his injuries, despite his treatment to date, which has also included unconventional procedures, such as stem cell treatment. Thus far the treatments Mr Schofield has undergone have resulted in him being unable to work, in total, for over a year. He has already received an interim payment for some of those procedures.
It was not suggested that the reports in issue were not relevant to Mr Schofield's claims, supporting as they do the claim that he now wishes to advance, that the result of his injuries, the treatment he has received and will further require, is that his working life will come to an end five years sooner than it otherwise would have. I cannot see, in justice, that Mr Scholfield can be precluded from advancing that claim, in the circumstances he now appears to face.
The failure to make the application which ought to have been made under r 31.28, was not that of Mr Schofield, but of his legal representatives. The reports obtained from Dr Diaz, served in July and August 2017, outside the time fixed by the Registrar even for service of refresher reports and without necessary leave, was, it was candidly explained, both because of a late realisation that there was an evidentiary gap in his case and because of the nature of the consequences of Mr Schofield's injuries and the results of the surgeries he has undergone, the last in August 2016.
Contrary to what the defendant contended, it must be accepted that engaging Dr Diaz was not the result of an attempt to undermine the common views which the orthopaedic experts had reached in June. That is both because of counsel's submissions as to the circumstances in which Dr Diaz came to be engaged and because it was confirmed that Mr Schofield would rely on the orthopaedic expert he had retained, notwithstanding what had been agreed in the joint report.
I also do not accept that such representative errors are commonly made, as was submitted for the defendant. Undoubtedly the nature of Mr Schofield's injuries, treatments and recovery time contributed to that outcome.
I also accepted that some of the reports did fall within r 31.28(4)(b), as refresher reports, either in whole or in part. I was also satisfied that in the case of those that did not, the defendant must have a fair opportunity to meet Mr Schofield's altered case. I was not, however, satisfied that all that needed to be done to meet Mr Schofield's altered case, could be accomplished within the time available prior to the hearing.
The result, if justice was to be done between the parties, in the circumstances, was that the price of the leave which Mr Schofield sought had to be the vacation of the hearing, as well as a costs order.
The matter is now listed before me, on Thursday, 7 September at 9.30am. The parties having been directed to confer as to a further timetable and as to the appropriate costs order, given that what had been sought was an indemnity costs order, payable forthwith.
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Decision last updated: 01 September 2017