Skinner v The State of New South Wales

District Court of NSW|2021-02-16

BACKGROUND

The plaintiff applies to the Court for leave to rely upon the expert reports of Dr Alexander Murray and Professor Alexander McFarlane AO, dated 7 November 2020 and 7 December 2020, respectively.
The defendant opposes the grant of leave, on two grounds. First, lateness and secondly, admission of the reports would infringe s 318(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 'WIM Act') and to the extent that the plaintiff seeks to overcome the effect of that provision by seeking leave under s 318(2) of the WIM Act, the plaintiff has not satisfied the conditions for leave.
I propose to deal with the issues concerning s 318 first, which raise more substantive grounds than the lateness objection.
Before I do, I address the relevant background.
Put very broadly, this is a proceeding commenced by a former officer of the New South Wales Police Force (the 'Police Force') for 'work injury damages'. The plaintiff has suffered psychiatric illness following a nearly 20 year career in the service. Throughout that career, in the performance of her general duties, she was exposed to many traumatic incidents. But the plaintiff also asserts that she had difficulties in the workplace itself, with colleagues and supervisors, and she complains of bullying and harassment. Her case, broadly stated, is that in many ways the Police Force negligently failed to take steps to protect her from developing her psychiatric illness. She sues the State as being vicariously liable for the conduct of the Police Force.

The impugned reports

The main part of Professor McFarlane's report of 7 December 2020 amounts to 21 pages. In brief, Professor McFarlane reviewed a series of documents and answered certain questions raised by the plaintiff's solicitors. These included the plaintiff's witness statement (Exhibit B in the proceeding), another witness statement from the plaintiff erroneously dated 5 October 1972 (but apparently Exhibit A in the proceeding), Dr Murray's reports (31 December 2015 and 7 November 2020) and other documents apparently obtained by the plaintiff's legal representatives, which concerned what Professor McFarlane characterised as 'a variety of steps and issues that occurred' during the plaintiff's career in the Police Force. A feature of Professor McFarlane's report is that many of these documents passed without his comment.
Dr Murray's report of 7 November 2020 amounts to no less than 41 pages. The structure of it commences with what might be regarded as something of an overview: how, in his experience of treating police officers with conditions like the plaintiff, psychiatric illness can develop and how it developed in this plaintiff's case, by reference to certain events. At pages 10-11, he then provided a prognosis (something he had previously done in his first report) as to the plaintiff's current situation, compared to what it was likely to have been without the events that occurred. Dr Murray then provided what he calls an 'Annotated chronology', which commenced at page 12 and continued through to the end of the report (pp 12-40). This 'chronology' amounts to a combination of the trauma-inducing events, citation or commentary upon the reports of health practitioners (such as the psychologist, Peter Briggs). The last of those events was identified as being 18 January 2010.

Evidence on the application

In support of this particular application, the plaintiff relies upon all of the testimonial evidence on days 1 & 2 of the hearing and Exhibits A and B in the proceeding. Exhibits A and B were the written statements of the plaintiff which the Court directed could be taken to substitute for oral evidence as the plaintiff's evidence in chief.
The plaintiff also relied upon the affidavit in support of Anita Pershad, sworn 18 December 2020, which was filed with the notice of motion in which the current application is brought.
The defendant formally relied upon the affidavit of Katrina Meredith Jenkins dated 1 February 2021; however, as the oral argument emerged, emphasis was placed principally upon the letters of instruction to Professor McFarlane and Dr Murray for their most recent reports.

SECTION 318 AND ITS INTERPRETATION

In Strasburger Enterprises Pty Ltd trading as Quix Foodstores v Serna [2008] NSWCA 354 Basten JA (with whom Gyles AJA and Hoeben J agreed) at [37] described the scheme created by ss 315, 316 and 318 of the WIM Act as involving "potential traps and strategic decisions for both parties."
Section 318(1)(d) of the WIM Act relevantly provides that a party is not entitled to have any report admitted in the proceedings on its behalf if the report was not disclosed by the party in a pre-filing statement, except with the leave of the Court.
By s318(2), conditions to the grant of leave are that the Court is satisfied that: 1. the 'material concerned' was not reasonably available to the party when the pre-filing statement was served; and 2. the failure to grant leave would substantially prejudice the party's case.
I adopt the following principles. First, the general statutory framework of Part 6 of Chapter 7 of the WIM Act, of which s 318 is one provision, is designed to ensure the parties make full disclosure of their positions, so that by mediation and otherwise, the prospects of settlement can be fully explored (Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 per Hoeben JA (Campbell and Barrett JJA agreeing) at [11]).
In Sohailee v City Projects and Developments Pty Ltd [2019] NSWSC 1452, Cavanagh J spoke to similar effect. His Honour said, at [22], that the statutory purposes are: "to ensure that claimants and employers properly participate in the pre-filing process required by the [WIM] Act; that is, the claimant is required to put the defendant on notice of the particulars of his claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. The purpose of requiring the claimant to do that must be to assist in the process of resolution of the dispute prior to proceedings being pursued and to ensure that the employer/proposed defendant has proper, adequate and complete notice of the claim that is and will be pursued by the injured employee".
I respectfully agree with these observations. In addition to emphasising the value in full disclosure facilitating settlement and giving fair notice of what an injured employee might later claim, another virtue of the framework for disclosure is that if a work-injury proceeding is eventually commenced, full disclosure in advance may also serve to reduce the length and costs of a proceeding and the time for its disposal. In this way, a provision like s 318 of the WIM Act dovetails with the content of ss 56, 57(1)(d), 59 and 60 of the Civil Procedure Act 2005 (NSW) once the litigation has commenced.
Secondly, in effect, the framework imports an 'obligation of forensic diligence' (Australian Winch & Haulage Company Pty Ltd v Collins [2013] NSWCA 327 per Sackville AJA (Emmett and Leeming JJA agreeing) at [140]), meaning the obligation of the party, and its legal advisers, is to take all reasonably practicable steps to amass the evidence it relies upon in support of its claim and articulate its case at or before the time it serves the pre-filing statement.
Thirdly, in terms of the content of the disclosure requirement under s 318(1), as Hoeben JA noted in Wilkinson v Perisher Blue (at [219]), what was required prior to the service of the pre-filing statement was the disclosure of the 'nature and substance' of the evidence. His Honour said, for example, that it would not be expected that a verbatim transcript of evidence be given. But his Honour's general point is that the strictures of s 318(1) do not operate so strictly as to foreclose any elaboration or alteration of the content of a report, or reports, which have been disclosed prior to the pre-filing statement, where there is a legitimate purpose for doing so, consistently with the statutory framework. I will return to Wilkinson v Perisher Blue later when considering the application of these principles in this case.
Fourthly, the power in s 318(2) is remedial in nature and is designed to serve the interests of justice (Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 per McColl JA (Ward JA and Adamson J agreeing) at [91]).
Fifthly, conditions for the grant of leave under s 318(2) are conjunctive.
Sixthly, in my view, the objecting party bears the onus of proving that s 318(1) has been infringed. Once it has done so, the tendering party, being the applicant for leave under s 318(2) that is seeking an exception from the preclusive effect of s 318(1), bears the onus of establishing that both of the conditions in s 318(2)(a) and (b) are satisfied. On the question of onus of proof, although no authority was brought to my attention, I consider that the position is broadly analogous to s 138 of the Evidence Act 1995 (NSW), with the objecting party having to prove impropriety and, having done so, the tendering party has to prove why the evidence improperly obtained should be admitted.
The main contest, raised in the parties' submissions, concerns s 318(2)(a) and the question whether the material concerned was reasonably available.

"Material concerned"

What is the 'material concerned', for the purposes of s 318(2)(a)? The concept is protean, taking its meaning from whichever one of the exclusions in s 318(1)(a)-(d) are applicable. The concept is intended to capture, in a composite way, what was 'reasonably available', to deal with each of those different scenarios. Thus, for s 318(1)(b), it may be the discovery of facts constituting a new or different defence which a defendant wishes to run, contrary to what it had run at the point when it served its pre-filing defence. This appears to be how the expression was construed by Taylor SC DCJ in Ortlipp v Employers Mutual NSW Ltd as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 at [39]-[44]. In this way, the 'material concerned' is, as it were, tied to the particular subject matter in any one of s 381(1)(a), (b), (c) or (d) which is question.
In Wilkinson v Perisher Blue, the employer sought to rely upon witness evidence purportedly not included in its pre-filing defence and objection was taken by the employee under s 318. As indicated in the reasons for judgment, the witness had given evidence the substance of which was disclosed prior to the pre-filing statement. But he did not deal specifically with the alternative system of work, upon which the employer relied at trial, because "at the time the statement was served, that was not part of the appellant's case." It was determined on appeal that such evidence was not reasonably available, so the condition in s 318(2)(a) was satisfied. As I apprehend it, with respect, the decision could be explicable on the basis that because of forensic considerations, a party's case had changed (and was permitted to change) so that the witness had not had opportunity to deal with the case, prior to the pre-filing statement. That being so, on the proviso that s 318(2)(b) was satisfied (which it was), then leave should be granted.
Another case that dealt with an attempt to rely upon evidence was Kubovic v HMS Management [2015] NSWCA 315. In that case, the objecting party (the worker) opposed the tendering party's (the employer) use of surveillance evidence. The worker's argument was that the employer was, in effect, put on notice, before the pre-filing defence was served, that the worker had told two doctors that he had attended a gym before and after the subject accident. The Court of Appeal allowed the employer to adduce the surveillance evidence to impugn the worker's credibility, as it showed, amongst other things, that he had capacity contrary to his evidence. McColl JA, who dissented in the outcome, but whose view on the instant question was agreed with by Ward JA and Adamson J, emphasised that notwithstanding the statutory purpose underlying s 318, the leave requirement recognises that there may be material not disclosed prior to the pre-filing document, which becomes relevant to the outcome and the interests of justice may favour its admission (at [104]). In that case, the surveillance material only came into existence after the pre-filing defence ([29] & [32]), so the issue was really only whether the evidence was reasonably available on the basis of information that the employer had at the time it filed its pre-filing Defence. The Court made the factual determination that it did not. Her Honour also emphasised (at [91] & [104]) that the interests of justice present an important, perhaps paramount consideration. With respect, that must be right, however, in my view, it remains necessary for the tendering party to satisfy the Court of both conditions in s 318(2)(a) and (b), before the Court's takes into account how the interests of justice may play out. It could be said that it is not in the interests of justice for leave to be declined if the tendering party is thereby substantially prejudiced. The initial task is determining whether the conditions in s 318(2)(a) are both satisfied.
Having considered these limited authorities, for the purpose of s 318(2), at least in the context where a party wishes to tender a supplementary expert report based upon information not previously considered, in my view, particular attention needs to be given, in the first instance, to what purpose is sought to be achieved by it.
The second step, in my view, is to determine, in the context of supplementary expert reports, for the purposes of s 318(2)(a), whether there are circumstances - necessarily occurring after the service of the pre-filing statement (or defence) - which justify the supplementary opinion being provided.
In evaluating the validity of that justification, regard has to be made to the text, as well as the objects of s 318(1), within the relevant Part of the WIM Act.
In the affidavit in support of the application to rely upon both experts' reports, the plaintiff's solicitor refers to the service of the report of Dr Vickery on 17 November 2020. If all that Professor McFarlane and Dr Murray sought to do was to put on reports in reply to what Dr Vickery said, then I think it would be clear that the 'information' that each was relying upon in preparation of their report was Dr Vickery's report, then that would plainly would be material 'not reasonably available' to them (and therefore the plaintiff) at the time of the service of the pre-filing statement. Accordingly s 318(2)(a) would be satisfied. But that is not the point of Professor McFarlane's and Dr Murray's latest reports.
In my opinion, for Professor McFarlane's and Dr Murray's reports to be admitted under s 318(2)(a), the plaintiff needs to show that the information upon which they rely to express their opinions was not 'reasonably available' to them when they prepared their reports prior to the service of the plaintiff's pre-filing statement. That construction gives content to the requirement in s 318(2)(a) that the material was not (previously) available. It serves the legislative purpose of ensuring that reports and other written material that is, or are, intended to be relied upon by a claimant is, or are, served on the other side in time for the pre-litigation processes to be considered. It gives meaning to the requirement for a party to exercise reasonable forensic diligence. It also may tend to reduce the scope for disputation, or at least reduce the time required for resolution of that disputation, in the subsequent litigation.
I do not accept, therefore, the plaintiff's submission that in circumstances where an expert provides a report to a party before the pre-filing statement (or defence), and then, later after a proceeding has commenced, is asked to provide new opinions based upon evidentiary material which the expert already actually had in his or her possession, or which were reasonably available to the expert prior to the time of the pre-filing statement (or defence), s 318(1)(a) would necessarily permit the party being able to rely upon the subsequent report. Of course, there are limits in a party's capacity to put all of its cards on the table before filing a pre-filing statement. In the case of a lay witness, as was said in Wilkinson, it is only the nature and substance of the evidence which must be disclosed. Here however, the Court is dealing with a written expert reports served prior to the filing and proposed new expert report served during the proceeding.
Section 318, and the other provisions in Part 6 of Chapter 7 of the WIM Act, is intended to instil discipline and focus in the party's preparation of its pre-filing statement or defence, so that the circumstances are as favourable as they can be to determine whether settlement can be reached prior to the recourse for commencing a work injury damages proceeding. The care needed to prepare such statements, and the evidence underlying it, is one of the reasons why some judges may sometimes take a liberal view when asked to consider granting leave to commence such proceedings out of time because of the substantial period of time required for a claimant to compile the evidence he or she needs in order to participate in those processes (see Gower v State of New South Wales [2018] NSWCA 132 per Simpson AJA at [232]).
This is not to demand a counsel of perfection from lawyers in ensuring that all relevant information is before an expert for a party so that it can be the subject of opinion from an expert prior to the pre-filing statement. This explains the reference in s 318(2)(a) to material being not "reasonably" available. For example, an unexpected, but material change in a claimant's symptomology might provide one instance where information has emerged which was not reasonably available to a treating expert (someone like Dr Murray) when preparing the expert's report, served prior to the pre-filing statement. On the construction I favour, subject to the claimant satisfying the other condition in s 318(2)(b), s 318(2)(a) would present no bar to a claimant obtaining a supplementary report from that treating expert and could obtain leave to have the opinion admitted.

The defendant's preliminary point regarding s 318

The plaintiff raises, as a general answer to the defendant's objection, the proposition that so long as the service of the expert report does not carry the consequence that she wishes to amend her pleading, then s 318 presents no bar to the reliance upon the supplementary report. The plaintiff argued that in circumstances where the plaintiff's pleaded and particularised case has not changed, which is the position here, s 318(1)(d) presents no impediment to the reception of relevant expert opinion evidence.
I do not agree. In my view, that conflates each of the possible situations that apply in s 318(1)(a)-(d), which are discrete and separate. Specifically, s 318(1)(a), (b) and (c) concern changes to a party's pleaded case, but s 318(1)(d) concerns evidence, in a general sense, but 'reports' (including expert reports), in particular. The relevant prohibition for the Court now to consider is s 318(1)(d).
A separate argument, one more related to s 318(1)(d), is that so long as there is no substantial alteration between the content of an expert's report after a proceeding has commenced, and the content of any report prepared prior to the pre-filing statement, there is no infringement of s 318(1)(d).
That submission, in my view, does not come to terms with the restriction in s 318(1)(d). The restriction in that provision makes no comparison between two reports, that is a report that was disclosed prior to the pre-filing statement and another report relied upon in subsequent litigation, than require an evaluative assessment of what is different about them. Section 318(1)(d) refers to only one document, being "the" report.
Accordingly, in my view, the defendant has made out that s 318(1)(d) is offended: the plaintiff is seeking to rely upon "reports" of Dr Murray and Professor McFarlane which had not been disclosed by the plaintiff in her pre-filing statement.
Leave is therefore required under s 318(2).
I will now address the question whether leave should be granted to admit the two reports separately.

Dr Murray's report

There were two letters of instruction sent to Dr Murray. One was dated 8 September 2020. The other was dated 10 September 2020. In the first of those, the plaintiff's solicitors enclosed the witness statements which are now Exhibits A and B, respectively and a 'chronology'. The actual chronology supplied to Dr Murray was not in evidence on the application. I infer that the plaintiff's lawyers, with or without the plaintiff's assistance, authored that chronology. It is not apparent to me the extent to which the chronology was based upon any material which Dr Murray did not have prior to June 2016.
In the letter of instruction of 8 September 2020, the plaintiff's solicitor set out issues in the case and asked Dr Murray to do two things: first, to provide an 'update' generally on issues concerning 'causation, diagnosis and prognosis'. Secondly, Dr Murray was asked to answer two particular questions: 1. "Did the psychiatric pathology (PTSD and Major Depression) caused by the alleged breaches of duty combine to lead to her incapacitation?"; and 2. "But for the breaches of duty (failing to respond and intervene in her trauma exposure and the negligent management style) would she still be gainfully employed in the service or in other industry until normal retirement".
The letter of instruction of 10 September 2020 enclosed further material to enable the expert to provide his opinions with. Three of those documents were reports of an expert nature. Those reports, and the other document referred to, were created prior to the filing of the pre-filing statement.
Having regard to the content of these letters of instruction, in my view, they expressly raise matters for Dr Murray's consideration, especially the content of the defendant's defence, which were not reasonably available at the time that the plaintiff prepared her pre-filing statement. So too does the request for an update. These are purposes which do not infringe s 318(2)(a) of the WIM Act.
I accept that pp 10-11 of Dr Murray's report, which speaks of prognosis and appears relevant on the issue of causation and appear to be relevant to the last paragraph raised of Dr Murray in the 8 September 2020 letter of instruction amount to an 'update' based on more recent information, or at least more recent information supplied to Dr Murray since June 2016.
However, a problem has arisen. Although he goes through the chronology at considerable length, Dr Murray does not clearly, or at all, address the two questions that he has been specifically asked to address 'on the balance of probabilities'. What followed was, with respect, a somewhat discursive summary, and sometimes a commentary, on each of the items of the chronology, without direct linkage to those questions.
The chronology was described in the letter of instruction as being based upon the plaintiff's "first" statement and 'other materials'. To my mind, the plaintiff has not demonstrated that pp 12 - 40 of Dr Murray's report is based upon materials "not reasonably available" to him. Prior to June 2016, the chronology of events ends at June 2010. Rather, those pages of Dr Murray's report can be characterised as a retrospective, based upon his long association with the plaintiff, without express reference to any material (such as documents or observations from examinations) that was not reasonably available to him when the plaintiff's pre-filing statement was served in 2016. In relation to this part of the report, the retrospective has not been shown to be based on information that was not available, or not reasonably available, prior to June 2016.
Accordingly, other than pages 10-11, Dr Murray's report does not satisfy the condition in s 318(2)(a).
If I am wrong, the plaintiff made no submission as to how the plaintiff's case would be substantially prejudiced if the part of Dr Murray's report (pp 12-40), comprising the summary and commentary on the chronology prepared for his consideration, was not admitted. This is in a context where Dr Murray had prepared a report exceeding 50 pages (31 December 2015), supplemented by a very brief report on 29 February 2016, which went into voluminous detail as to the adequacy of steps that the Police Force could have taken and likely causal consequences if it had. I am not persuaded that leave is necessary so as to avoid substantial prejudice to the plaintiff's case. The condition in s 318(2)(b) is not satisfied.
I will return to the part of Dr Murray's report which meets the two conditions in s 318(2) later when dealing with the defendant's lateness objection.

Parties' submissions

In his oral submissions, Counsel for the plaintiff argued that both experts, but specifically Professor McFarlane, should be permitted to engage with the lay and documentary evidence in the case as it has emerged during the litigation. The submission was made that some of that evidence was not available and could not be said to be reasonably available prior to the pre-filing statement. Exhibit B is a prime example. Other documents brought to Professor McFarlane's attention were also not available for his consideration prior to the pre-filing statement. Although I was not referred to evidence on the point in the application, I understood Counsel to say that some of the documentary material provided to Professor McFarlane was only procured through the issue of a subpoena, or subpoenas in the course of this proceeding.
The defendant generally submits that the information referred to by Professor McFarlane in his impugned report, which provides the platform for his supplementary opinion, is information that was reasonably available to him by the time that the plaintiff served her pre-filing statement in June 2016.
Factually, the submission is not entirely correct. The second of the plaintiff's witness statements, Exhibit B, was prepared and signed in August 2019. Plainly it was not and could not be considered by him prior to June 2016. Similarly, Dr Murray's report of 7 November 2020 could also not be said to have been reasonably available to him. That said, it appears that all of the other documents which he reviewed and (as appropriate) provided comment upon in his report, predated June 2016.
About these documents, Counsel for the defendant says that whether or not documents supplied for Professor McFarlane's consideration were obtained in this Court by the use of a subpoena, or subpoenas, in this case, the documents could reasonably have been obtained during the course of the plaintiff's proceedings in the Workers Compensation Commission. Reference was made to power of the Commission to direct the production of documents under the WIM Act, in s 357. It was incorrect to say that the documents could not have been obtained before the commencement of the proceeding. The plaintiff's example of difficulty of obtaining reports from Dr Spruce was a poor example: these were reports of the plaintiff's treating psychiatrist.
More specifically, the defendant submits that the questions raised for Professor McFarlane's consideration, which are answered at pp 18 - 24 of his report, could have been asked of him previously, before the pre-filing statement was served, and represent only an attempt to remedy deficiencies in the existing state of the plaintiff's case.
The defendant's submissions acknowledge that Professor McFarlane is a renowned expert psychiatrist particularly in the field of PTSD, who prepared very comprehensive reports that were served prior to the pre-filing statement. The questions he was asked to consider for the impugned report may have been answered earlier but any such answers would have been proffered on the basis of the information then presently to hand. As an expert, one of Professor McFarlane's ethical responsibilities would have required him to alter his opinion if new information had come to light after his opinion had been expressed. It is a commonplace in ordinary civil proceedings for experts to provide supplementary opinions which, as Professor McFarlane seeks to do here, require reconsideration of earlier views in the light of information subsequently supplied, so long as fairness, and compliance with rules of court so allow.

Pages 1-18 of Professor McFarlane's report

The letter of instruction to Professor McFarlane was dated 13 November 2020. The letter enclosed the plaintiff's statement which is Exhibit B. The letter also enclosed the plaintiff's earlier statement prepared in 2010 for Professor McFarlane's convenience, noting that he had previously received a copy of it. The letter also enclosed a copy of Dr Murray's report, dated 7 November 2020.
Contrary to the impression created by pp 1-18 of Professor McFarlane's report, what the letter of instruction did not do was to ask the expert to review all of the documents which the expert referred to in his report, save as for Exhibit B in the proceeding and Dr Murray's most recent report. That said, the expert was asked to identify any studies or research he may wish to consider.
That being so, save for Exhibit B and Dr Murray's report, there is no factual basis for any submission that all the other documents which Professor McFarlane referred to in his report: (a) were not already in his possession when he had produced his reports in 2014 or 2015; or (b) (alternatively) could not reasonably have been brought to his attention before the pre-filing statement.
That being so, subject to two possible qualifications, I would not allow the plaintiff leave to rely upon pp 1-18 of Professor McFarlane's report, as the plaintiff cannot demonstrate that this part of the report was 'not reasonably available' to the plaintiff when the pre-filing statement was served. The qualifications are contained in the commentary that Professor McFarlane provides in relation to: (a) Exhibit B and (b) Dr Murray's most recent report.
As to Exhibit B, that was a witness statement only prepared in August 2019. Although the defendant at one time signalled an objection to s 318 to that witness statement it did not ultimately pursue it. That being so, I see no reason why s 318(1)(a) would preclude Professor McFarlane from considering it. The plaintiff will still need, however, to satisfy the Court of the leave requirement under s 318(2)(b). I will return to this part shortly.
As to Dr Murray's report, as plainly indicated, I reiterate that, subject to the defendant's lateness objection, I would allow leave to the plaintiff to rely upon pp 10 and 11 of that report. However, a fair reading of Professor McFarlane's treatment (reviewed at section 14, pp 16-19 inclusive) of Dr Murray's report is that this particular section did not influence Professor McFarlane's opinion. That being so, I would not allow that part of Professor McFarlane's report commenting on pp 10 and 11 of Dr Murray's report.
To this point, the result is that in relation to pages 1-17, with the possible exception of section 4 (pp 11-12) of Professor McFarlane's report, concerning Exhibit B, the plaintiff has not satisfied the requirements of s 318(2)(a) of the WIM Act.

Pages 18-22 of Professor McFarlane's report

A fair reading of Professor McFarlane's answers to those questions indicates that it is very hard to discern whether anything said by the plaintiff in Exhibit B (which is, in substance a reprise of what the plaintiff said in Exhibit A - which Professor McFarlane already had available) and anything said by Dr Murray at pp 10 and 11 of that expert's report played any role at all in Professor McFarlane's answers.
Unlike the main letter of instruction to Dr Murray, the letter of instruction to Professor McFarlane did not point to any development since the litigation had commenced in March 2017, or for that matter, since the service of the pre-filing statement, that required answers to the questions that were raised. It was not a case, like Wilkinson v Perisher Blue Pty Ltd, where attempt was made by a witness to give evidence about a case by one of the parties that had changed since the pre-filing statement. Further, in the solicitor's affidavit in support of the application, no justification was supplied as to what had changed, since June 2016, which required answers to those questions, other than the lawyers thinking that the questions should be addressed.
That being so, I am also not persuaded that the answers to those questions, comprising pp 18-22 of Professor McFarlane's report dated 7 December 2020, satisfy s 318(2)(a) of the WIM Act.

Section 318(2)(b)

If I am wrong about my interpretation of s 318(2)(a) and/or its application to Professor McFarlane's report, I would add that I would not be satisfied that the plaintiff would be substantially prejudiced by the rejection of this report.
First, the subtext of Professor McFarlane's report, certainly in his answer 1 is, in effect, "I have had read evidence supplied to me since I formed my views in 2014 and 2015, which I did not have at the time I prepared those reports, and those views have not changed". Ultimately, what will be probative for the plaintiff's case is how those views from 2014 and 2015 will be assessed. Similarly, in his answer to question 4, Professor McFarlane harks back to his report of 15 December 2015.
Secondly, in terms of Professor McFarlane's earlier reports, and in conjunction with the evidence of others (including Dr Murray) and Mr Cockbain, one of the objectives of the exercise, apparent in his answers numbered 2 & 3, seems to be for Professor McFarlane to lend his imprimatur and prestige, as an expert, to the work of other experts to be called by the plaintiff and, in such way, bolster their evidence. Although evidence of that kind may arguably be relevant and admissible, (and no point was taken about ss 135 or 136 of the Evidence Act 1995 (NSW)) there is a real limit to the probative value of evidence of that kind. The evidence of the other experts, Dr Murray and Mr Cockbain, will fall to be assessed on their own merits.
Thirdly, in relation to the part of Professor McFarlane's report which I believe does satisfy s 318(2)(a), concerning his commentary upon the plaintiff's witness statement (Exhibit B), at section 4 (pp11-12) of his report, I do not believe that the plaintiff has established she will be substantially prejudiced by the rejection of that part of his report. Professor McFarlane's only real comment concerned the plaintiff's expression of her emotions was to make what, with no disrespect, appears to be the self-evident opinion that it was an instance of a traumatic episode.
Accordingly, even if I was to be satisfied about s 318(2)(a), I am not persuaded that the condition in s 318(2)(b) is satisfied.
I refuse the plaintiff's application to rely upon Professor McFarlane's expert's report of 7 December 2020.

THE DEFENDANT'S LATENESS OBJECTION

The defendant contends that even if the s 318 bar is passed, as it has in relation to pp 10-11 of Dr Murray's report, leave should be declined to the plaintiff to rely upon the opinion in that part of the report, because of the lateness of service of the report.
Whatever be the requirement for leave, the defendant says that the plaintiff must establish 'exceptional circumstances' for the admission of that part of the report, under r 31.28(4)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR').
The plaintiff says that this is not so. The relevant part in issue represented merely an 'update' of part of Dr Murray's earlier opinion, from his report dated 31 December 2015. Reliance was placed upon the decision of the Supreme Court in Commonwealth Bank v Linvest (No.6) [2017] NSWSC 439 at [12].
I accept the plaintiff's submission. A fair reading of that earlier report, in comparison with pp 10-11 of Dr Murray's most recent report, indicates that this part of the most recent report is an update on his earlier evidence on issues concerning the plaintiff's prognosis and the causal effect of the conduct of the Police Force.
However, with respect to the balance of Dr Murray's report, and the entirety of Professor McFarlane's report, I would not have granted leave under court rules for the reports to be admitted. The proceeding commenced in March 2017 and there is no indication that the defendant has done anything in the conduct of the proceeding which might explain why, in a context of a proceeding that has lasted for nearly 4 years and with a hearing imminent, the plaintiff unilaterally proceeded to obtain expert evidence without seeking the Court's approval in advance; thereby presenting to the defendant, and the Court, something of a fait accompli. Further, for reasons already advanced in connection with the s 318 argument, I do not consider any substantive injustice will arise as a result of that determination.
In the result, under a combination of s 318(2) of the WIM Act and r 31.28(4) of the UCPR, pp 10-11 of Dr Murray's report dated 7 November 2020 is admitted into evidence. Otherwise the plaintiff's application is refused.
Costs of the application are to be reserved.

Amendments 01 March 2021 - Fixed typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2021

Civil Procedure Act 2005(NSW)ss 56, 57, 59, 60

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