Before the Court is a notice of motion brought by Ms Sisson, the plaintiff. It seeks, in short, a "declaration" pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) and s 192A of the Evidence Act 1995 (NSW) (the Act) that the contents of the report of an expert are admissible. It was accepted by counsel for the plaintiff that he did not seek to have me rule that the contents of that document are free of any successful objection and are admissible for all purposes; rather, what is sought is a ruling that the report is not inadmissible for falling foul of the Rules, in terms of the timing of its service.
Background
The background is straightforward. The plaintiff was employed in a poultry processing plant operated by the first defendant. The second defendant was her employer. Her claim is that she suffered an accident at work on 12 February 2010. She filed a statement of claim on 7 February 2013 against the first defendant, alleging negligence. Quite some time later, on 23 February 2015, she commenced proceedings pursuant to the workers compensation regime against the second defendant. It was explained to me that that was because a statutory precondition for those proceedings did not become established on the evidence until a later stage.
For many months, the position of the plaintiff was that her injuries had left her partially employable. On 5 November 2014, her solicitors were served with a report of Ms Monaghan and Ms Butler of 16 September 2014 (the Monaghan/Butler report) that was to the same effect; namely, that the injuries had left her partially employable. That report was obtained by the second defendant. Thereafter, some informal settlement discussions took place, but they did not bear fruit. On 11 May 2015, the matter was set down for a five day trial, to commence on 7 September 2015.
On 11 May 2015, no mention was made on behalf of the plaintiff of the possibility of relying on a further expert report, above and beyond those already served. And yet on 26 June 2015, a report of Mr Dwyer of 23 June 2015 was served upon the first and second defendant. It is that late service with the hearing date pending that led to this dispute being placed before me urgently as Duty Judge.
Submissions
Resolution of the motion was complicated by the fact that the first and second defendants took diametrically opposed positions. It was also complicated by the fact that (at my request) the parties set forth their primary and contingent positions. Finally, the hearing of the motion was noteworthy for the fact that counsel for the plaintiff firmly eschewed a solution that commended itself to me at all times; namely, the vacation of the hearing date with the plaintiff to pay the costs thrown away as a result. The firm refusal of the plaintiff to rely on that solution should be respected; if it causes adverse forensic consequences to accrue to the plaintiff, so be it.
The final complication is that it was agreed that, as between the plaintiff and the first defendant, the Rules and the Civil Procedure Act 2005 (NSW) are apposite. However, as between the plaintiff and the second defendant, s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) contains the test to be applied by me.
The primary position of counsel for the plaintiff, after discussion between Bench and Bar table, was that, far from pressing the motion, it should be stood over to the trial judge.
His secondary position was that, if I were of the view that the matter must be resolved now, he had established exceptional circumstances that overcome the prohibition in the Rules.
His tertiary position was that either the trial judge or I could undertake a "winnowing" of the report of Mr Dwyer, whereby matters that are truly new are excluded, but matters that are capable of being characterised as merely in reply to the Monaghan/Butler report are admitted.
The primary position of counsel for the first defendant was that the question simply must be resolved now, otherwise his client will be prejudiced by its inability to call evidence on the question at the hearing. He submitted that the resolution should be that the report is ruled inadmissible, because the plaintiff has not established exceptional circumstances.
His secondary position was that, contrary to the position of the plaintiff, the hearing date should be vacated.
The primary position of counsel for the second defendant was that there is a different test pertaining to the admissibility of the report as against his client, pursuant to a different statute. That extra level of complication should be left to the trial judge.
His secondary position was that, if the matter must be determined today, the report should be rejected, because it does not comply with that separate regime.
Turning first to the admissibility of the report as against the first defendant, the plaintiff accepted that, pursuant to the Rules, he needed to show exceptional circumstances in order to be permitted to rely upon the report. He submitted that they had been made out. That was said to be based upon the complication arising from the proceedings against the second defendant being brought at a late stage, and pursuant to a different regime; and the fact that the possibility of settlement put things in abeyance to a degree for quite some time.
As for the second defendant, its counsel emphasised that the late service of this document (which asserts for the first time that the plaintiff is completely unemployable - in stark contrast to her previous position maintained over many months) substantially prejudices the second defendant. Affidavit evidence demonstrated that it is simply impractical for the solicitors for the first defendant to obtain a report in answer to the report in dispute before the hearing date. That means that, through no fault of its own, the first defendant will be bereft of expert evidence to counter the claim of the plaintiff that she is completely unemployable. The fact that the Monaghan/Butler report has been obtained on behalf of the second defendant was said to be no answer; after all, the interests of the first and second defendants are not identical, and it could very well be that the first defendant would have wished to have obtained its own report.
In short, the final position of counsel for the first defendant was that I should rule that the evidence is inadmissible for failing to comply with the Rules. In the alternative, he submitted that I should vacate the hearing date (contrary to the wishes of the plaintiff), so that the plaintiff will be able to rely on the report at a hearing many months from now, and so that the first and second defendants will be able to address that report properly.
The position of the plaintiff and the second defendant was ad idem: I should stand the question of the admissibility of the report against the second defendant over for the consideration of the trial judge. In other words, by the close of the first phase of the hearing, they were content for me to make that order, as it pertained to the admissibility of the report as against the second defendant, by consent.
But the first defendant was subsequently permitted to make the point that that would give rise to the possibility of the report being admitted against his client, but not against the second defendant (or indeed vice versa). I reconvened the Court so that I could receive the submissions of all parties on that new contention.
Whilst counsel for the first defendant accepted that, as a matter of strict theory, it would be possible to divide up the evidence and the factual findings in that way, as a practical matter it would be a highly undesirable result, possibly productive of injustice. After all, he submitted, it would be strange indeed if a plaintiff were, on the admissible evidence, found to be partially employable as against one defendant, but completely unemployable as against the other, in the one proceedings, brought by the one allegedly injured person, arising from the one alleged accident.
Determination
Turning to my determination, as I have said, I would have thought that the simplest solution that would ensure that all parties could properly place all relevant evidence before the court would be to vacate the hearing date, with costs almost certainly to be ordered against the plaintiff. But I repeat that counsel for the plaintiff firmly disavowed any such application. Accordingly, I put it to one side.
Secondly, in most circumstances I would be inclined not to exercise any power under s 192A of the Act. To my mind, in many, perhaps almost all cases, questions such as this should be left to the trial judge, who will understand all of the issues, appreciate the true significance of the disputed report, and appreciate the true significance of the delay in its service.
But that general rule will not always apply. In this case, I think there is force in the submission of the first defendant that it is completely inappropriate for his client to be left in the position of not knowing what (if anything) it could or should do to seek to meet this evidence at a hearing that the plaintiff has submitted should not be vacated. I accept that the question of the admissibility of the report against the first defendant cannot conveniently be left in abeyance by me.
For that reason, in the unusual circumstances of this matter, I propose to exercise my power to determine this limited question of admissibility pursuant to s 192A of the Act.
Turning first to the dispute between the plaintiff and the first defendant, I am by no means satisfied that the plaintiff has established exceptional circumstances. To my mind, the circumstances of a plaintiff suing both a place of employment pursuant to the Civil Liability Act 2002 (NSW) and an employer pursuant to the workers compensation regime is not unusual, let alone exceptional. Nor is the fact that settlement negotiations took place during preparation for a civil trial. And nor is the fact that the expert recently qualified by the solicitors for the plaintiff has seemingly taken a more pessimistic view than experts previously qualified by them.
I accept that the authorities with regard to the Rule state that it must be read in light of s 58 of the Civil Procedure Act 2005. But I do not accept that the first defendant should be prejudiced by way of the absence of evidence at a hearing that is to proceed in a little over a month at the insistence of the plaintiff, and by not knowing whether that is to occur.
As for the secondary position of counsel for the plaintiff, I do not consider that it would be apposite for either the trial judge or me to undertake a line by line analysis of the report of Mr Dwyer, seeking to determine (if such a thing is possible) which matters are merely in reply and which matters are truly new. That seems to me to be quite unworkable. In any event, even if that were able to occur, the first defendant would still be in no position to respond to any material in the report of Mr Dwyer that is admitted into evidence.
To summarise my findings with regard to the dispute between the plaintiff and the first defendant: first, I consider that I should deal with the matter before the trial. Secondly, I am not prepared to vacate the trial date, in light of the firm opposition of the plaintiff to that course. Thirdly, the plaintiff has not established exceptional circumstances that would permit the admission of the report of Mr Dwyer. Fourthly, I do not propose to attempt to undertake a "winnowing" of the disputed report. It follows that I shall make an order that the report of Mr Dwyer is not admissible against the first defendant.
Turning to the position between the plaintiff and the second defendant, the joint submission that resolution of this question should stand over to the trial judge is an attractive one. Until the supplementary hearing, I was inclined to order it.
Generally, I would be slow indeed to refuse to make a consent order in the circumstances. But on reflection, I accept the submission of the first defendant that to make that order runs the risk of there being "inconsistent verdicts", to use that term in an imprecise way. I accept that it is no small step to refuse to make a consent order with regard to an important notice of motion. Still and all, having decided that I should proceed to rule whether the report is inadmissible against the first defendant, I consider that I am constrained to determine the same question as between the plaintiff and the second defendant. I think that to do otherwise could well lead to an irrational result, redolent of injustice.
Turning to determine that question, I accept the secondary submission of the second defendant. In other words, I am not satisfied that the plaintiff has established the preconditions for a grant of leave in s 318(2) of the Workplace Injury Management and Workers Compensation Act. In particular, expert evidence pertaining to the future employability of the plaintiff has been available for very many months to her solicitors.
It follows that the disputed report is not admissible against the second defendant either.
Finally, it should be noted that all counsel accepted that it is well established that evidentiary rulings such as these are not "set in stone", and are liable to revisitation by the trial judge if circumstances change in a significant way.
Costs
Turning to costs, in light of my determination it is inevitable that the plaintiff must pay the costs of the first defendant of the motion. However, because, in truth, there was no dispute extant between the plaintiff and the second defendant by the end of the hearing, and in light of the fact that I shall ultimately make an order that neither the plaintiff nor the second defendant sought, I do not propose to make any order for costs as between those two parties.
Orders
I make the following orders:
1. The report of Mr Dwyer of 23 June 2015 is not admissible against the first defendant.
2. The report of Mr Dwyer of 23 June 2015 is not admissible against the second defendant.
3. The plaintiff must pay the costs of the first defendant of the motion.
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Decision last updated: 14 August 2015