Smith v Ulan Coal Mines Limited

Supreme Court of NSW|2019-09-20|Before: Campbell J, Mason P, Lonergan J

Kells Lawyers (Plaintiff) Spark Helmore Lawyers (Defendant) File Number(s): 2016/173109

Judgment

This matter is listed for final hearing commencing on 14 October 2019, with an estimate of 10 days. The plaintiff claims damages for personal injury for what is referred to as a high pressure hydraulic fluid injection injury to his left non-dominant hand which occurred on 1 June 2014 while he was working as an electrician in the coal mine operated by the first defendant, Ulan Coal Mines Ltd ("Ulan"). The plaintiff was employed by a labour hire company and his services had been lent by his employer to Ulan. His claim against Ulan is based upon the principles discussed by Mason P in TNT Pty Ltd v Christie (2001) 65 NSWLR 1; NSWCA 47. A claim for work injury damages against his employer has resolved.
By Notice of Motion filed on 17 September 2019 pursuant to directions made by Lonergan J on 13 September 2019, the plaintiff seeks leave to rely upon: 1. the amended evidentiary statement/expert report of mines inspector, Wally Koppe filed and served on 12 September 2019; and 2. the Further Amended Statement Of Claim ("FASOC"). The orders sought are related in as much as the amendments, which are to be found in proposed new paragraphs 7, 8, 9 and 10 of the particulars of breach of duty by Ulan, derive directly from page 17, paragraph 75.17 (a) - (d) of Mr Koppe's statement.

The issues for determination

The grounds on which objection is raised to Mr Koppe's statement/report are as follows: 1. the expert report when first prepared did not comply with the requirements of Rule 31 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). That is to say Mr Koppe did not state that his attention had been drawn to the requirements of the expert's code of conduct and that in providing his opinion he had agreed to be bound by it; 2. his report has not been served in accordance with the direction given by the Registrar for service of expert evidence and accordingly is not admissible except by leave which may only be granted under UCPR 31.28 in exceptional circumstances; 3. the expert opinion of Mr Koppe raises four new issues, I will detail later later; and 4. its admission would impose unfair forensic prejudice on the Ulan at this late stage of preparation for hearing.
I should say that the approach of Ulan was quite nuanced. Mr Koppe was the mine inspector who investigated the plaintiff's injury. His notes and factual report have been available to the parties since they were first produced under subpoena in 2016. They have been referred to in the expert report of Mr David Cockbain who has been qualified to give evidence on behalf of the plaintiff. It has always been expected that Mr Koppe would give evidence as to the results of his investigation, just not that he would be enlisted as an expert in the plaintiff's case.
Moreover, and perhaps a little paradoxically, Ulan says in any event, the matter is probably not ready for trial because the conferences or conclaves of expert witnesses, particularly the liability experts, have not been held and no joint reports have been produced. Ulan says that it has made every effort to arrange these conclaves in compliance with the Court's directions and the non-compliance should be laid at the plaintiff's feet.

The issues for trial

It is important to record that there are real issues of primary fact to be determined in this case. As I understand it, the plaintiff's case is that the hydraulic fluid injection injury to his left hand was caused by the sudden and unexpected release of hydraulic fluid from a large mining machine he was working on. Mr Koppe's investigation and testing of relevant components of that machine failed to detect a leak that may have been the cause of the plaintiff's injury. Moreover, Ulan's expert, hydraulics engineer Mr Parish, has questioned whether the plaintiff's injury could have been sustained in the manner claimed. From this, there are very significant issues of primary fact about what happened and why.

Apparent non-compliance with UCPR 31.23

UCPR 31.23 requires an expert witness to comply with the expert code of conduct set out in schedule 7 to the Rules. It requires the legal practitioner engaging the expert to provide him or her with a copy of the Code of Conduct. UCPR 31.23(3) provides: [U]nless the Court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert by whom it was prepared that he or she has read the Code of Conduct and agrees to be bound by it.
In its original form, Mr Koppe's statement did not contain the required acknowledgment. His amended statement signed on 11 September 2019 does. The addition of the acknowledgment is the only substantial amendment made.
As the express words of UCPR 31.23(3) make clear, the absence of an acknowledgment from an expert's report does not engage an inflexible exclusionary rule. The Court retains a discretion. In the exercise of that discretion, the Court will, of course, prefer substance over form. Where it appears that the expert in preparing the report has been guided by impartiality, independence from the parties and a motivation to assist the Court rather than the party retaining him, there will have been substantial compliance with the Code. However mere retrospective inclusion of the required acknowledgment in an amended report will not satisfy the requirements of the sub-rule unless it can be shown that there has been substantial compliance in the sense I have already discussed.
For my part, I am satisfied that Mr Koppe's statement was prepared in substantial compliance with the Code. He has undoubted expertise as a mechanical engineer working in the mining industry. Between 1998 and 2015 he was employed as inspector of mechanical engineering in the Mines Safety Department for the New South Wales government. He continued to work part-time for the department from 2015 until June 2016. He has 28 years' experience as an inspector. Although it is apparent, including from what was said at the hearing before, that his report was prepared as a result of a conference with Senior Counsel for the plaintiff, I am satisfied, from his background, his previous role, and the terms and content of the report, that when providing it, Mr Koppe substantially complied with the requirements of the Code of Conduct in relation to impartiality, independence and an understanding that the role of the expert was to assist the Court and not the party qualifying him or her to give evidence. Were this the only concern, I would permit the plaintiff to rely on Mr Koppe's opinions.

Non-compliance with UCPR 31.28

UCPR 31.29 makes an expert report admissible in evidence if it has been served in accordance with UCPR 31.28. The latter rule requires an expert's report to be served in accordance with any order of the Court; if no order has been made, then in accordance with any relevant practice note; or if there is no order or practice note in force, the report must be served no later than 28 days before the date of the hearing for which the report is to be used.
In this case, the Registrar made orders for the service of liability expert reports as long ago as 16 December 2016 requiring that the plaintiff's liability expert reports be served by 23 December 2016. Mr Cockbain's principal report was served in compliance with this order. On 7 June 2018 orders were made permitting the plaintiff to serve further witness statements by 10 July 2018 and a supplementary report of Mr Cockbain was apparently served in reliance upon this order on 7 June 2018. No further order had been sought by the plaintiff permitting the service of Mr Koppe's report until the current Notice of Motion.
Ulan points out that although the late service of Mr Koppe's report can be cured by leave. Leave is not to be given unless the Court is satisfied that there are exceptional circumstances that warrant the grant of leave: UCPR 31.28(4).
"Exceptional circumstances" is not a defined expression. To be exceptional, to say the least, the circumstances need be unusual or out of the ordinary, although they need not necessarily be unique or very rare.
There is no real explanation provided for the lateness, in terms of the orders I have referred to, of the service of Mr Koppe's statement or report. It does seem apparent from what was said at the hearing, that Mr Koppe was interviewed by Senior Counsel for the plaintiff in preparation for the hearing prior to the service of the first version of his report on 28 August 2019. I infer that at or about that time a forensic decision was made to attempt to qualify him as an expert.

Four mew matters

Ulan submits that on four matters, the opinions expressed in the report go beyond the contents of Mr Koppe's original factual report of his investigation. These matters are identified at [52] of the written submissions prepared by Ms Cameron of Counsel who appeared for Ulan on the hearing before me. Once again they are inter-related.
The first matter is at page 14, paragraph 75.2 of Mr Koppe's statement. Although he could not identify a leak during his investigation, he expresses the view that a leak could have occurred in the process of "stone-dusting" apparently carried out, which he was unable to identify. In his view, the amount of hydraulic oil he saw on the ground around the machine and on an oily rag which the plaintiff is said to have moved immediately prior to his injury was indicative of a leak. The limited amount of the excess oil, suggesteed to Mr Koppe that the "leak was only present for a short period".
This is related to the question about whether Ulan had performed work on the machine to fix a leak before Mr Koppe arrived at the mine to commence his investigation, on the day following the plaintiff's injury. What he said about this is the second new matter complained of by Ulan. This possibility had been referred to in Mr Koppe's original documentation and had also been raised by the Chief Inspector of Coal Mines, in a report of 11 June 2014, which also dealt with unrelated matters (Exhibit A). However, in his statement, Mr Koppe expressed the "opinion" that the leak, or the machine had been "interfered" with after the plaintiff's oil injection injury. He provided three possible means of how the "interference may have occurred".
There is no question that employees of Ulan entered the investigation site during the period after the occurrence of the plaintiff's injury and before the arrival of Mr Koppe at the mine. During this period the site should have been isolated. To this extent then, there is no doubt that there has been a degree of "interference". The possibility of repair or replacement of a faulty part by Ulan prior to the arrival of Mr Koppe was already a live issue in the proceedings. I am informed that witness statements have been served already by Ulan from employees dealing with this issue and denying that any leak was detected and repaired, or any fitting affected by a leak was replaced before Mr Koppe's arrival.
I understand that the use of the noun "interference" can be pejorative. That is to say, it can be suggestive of Ulan or its employees deliberately covering up the cause of the plaintiff's injury. If that is the intended implication, it must be pointed out that there has been no prior allegation of the deliberate engagement in nefarious misconduct by, or on behalf of, Ulan. In his inspection report (Exhibit A), the Chief Inspector referred to inadvertent conduct by tightening a leaky fitting up prior to the site being isolated. He said, "[I]t is not an offence". If, then, the possibility of "interference" is being escalated to the level of misconduct, it should not be permitted at this late stage. Notwithstanding the failure of Mr Koppe's 2014 investigation to exclude the possibility of "change" in the condition of the machine before the site was isolated, the escalation of the allegation should not be permitted at this late stage, notwithstanding the earlier investigation and preparation of witness statements relevant to this issue by Ulan.
However, despite the infelicitous language of "interference" I am not satisfied that Mr Kopp should be taken as suggesting anything pejorative, let alone nefarious in his use of that expression. It does seem that Ulan have anticipated the issue of whether the condition of the machine was "changed" in the aftermath of the plaintiff's injury and prepared itself to meet it.
The third fresh matter said to be contained in paragraph 64 of the report. It is in the following terms: I observed during the test that the pendent/umbilical control for the boot end was in close proximity to the two outer hydraulic fittings. As the pendent control could be picked up and moved around, it is possible that such a control could have been in a position close to Mr Smith where he may have inadvertently bumped it when interacting with the fittings. (References to annexed photographs omitted). Ulan submits it is prejudiced because in his original report, Mr Koppe recorded that "all statements indicate no controls were being operated at the time of the injury". I interpolate that the statement that witnesses said that no controls were being operated, is not necessarily inconsistent with inadvertent operation of a control. On the other hand, the statement contained in paragraph 64 is quite speculative, and it is not clear to me that it is wholly or substantially based on Mr Koppe's specialised knowledge as a mechanical engineer.
The fourth and final area of new material relates to the averments in paragraphs 7, 8, 9 and 10 of the particulars relating to Ulan's liability in the FASOC which, as I have said at paragraph [2] above, derive from page 17, paragraph 75.17(a)-(d) of Mr Koppe's statement. Of these four, the first two relate to the nature and extent of available "sleeving" and "guarding" of the hydraulic fittings to avoid escaping pressurised hydraulic oil coming into contact with a worker. The latter two relate to modifications to the machinery itself. First, by reducing, in an unspecified way, the number and length of fittings "substantially". And, secondly, by eliminating "metal to metal sealing".
I am of the view that the first two matters referred to in paragraphs 7 and 8 are no more than amplifications of the particulars already provided in the existing pleading at paragraph 3(d). In truth, they are not new matters. However, I accept that the matters of the modification of the machinery sought to be pleaded in paragraphs 9 and 10 are new matters. They are of a very general nature, remain unexplained by the absence of necessary detail and probably involve the re-design, at least in part, of the machine. It may be that Mr Parish could deal with these matters, but that is far from certain given the vagueness with which they have been expressed. I also accept the force of Ulan's argument that matters of design are the concern of the manufacturer of the machinery which Ulan is not. Those matters are likely to change the nature of the case that Ulan has to meet.

Other general issues

Ulan referred me to the important principles relating to case management identified by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, summarised by the Court of Appeal in Hannaford v Commonwealth of Australia [2014] NSWCA 297 at [60]. I accept that no very satisfactory explanation has been given for the late service of Mr Koppe's statement. I accept, as does Ulan, that it was always to be expected that Mr Koppe would be called to give evidence at the trial. The substance of his views was always known because of the early production under subpoena of his records prepared in the course of his duties as a mines inspector in 2016. Contrary to submissions of Ulan, I am not of the view that he has expressed opinions inconsistent with his investigation report other than in the two respects I have already identified. The provision of this detailed statement now provides both parties with a better understanding of the evidence he will be called to give.
It seems to me that acceding, at least substantially, to the plaintiff's application will not cause substantial delay. Obviously at this stage of the proceedings, a most important consideration is the preservation of the time set aside for the hearing if that can be done fairly to both parties and in the broader interests of the public. I am of the view that there is less disruption, delay and wasted costs involved in acceding to the plaintiff's application (not entirely), than in denying it. While there will be a degree prejudice to the defendant, the prejudice is not irreparable. Mr Koppe's statement or report does not alter the issues that the parties intend to litigate. Although his report is long and detailed, I expect Mr Parish (who is overseas until today) will be able to deal with the matters raised and should be given the opportunity to provide a supplementary report, if that can be done in the time available. If there is some real difficulty with this an application can be made for directions from the trial judge when the matter is allocated.
I am not of the view that granting the plaintiff's application will lessen public confidence in the judicial system. Allowing a party to proceed on a detailed proof of evidence from an expected witness and to amend pleadings to reflect that evidence advances the overriding purpose in as much as it promotes the identification of the real issues in dispute, bringing them to trial sooner rather than later.
I accept that it is the usual practice of the Court reflected in the Rules and Practice Notes, for experts to confer and produce a joint report setting out matters agreed, disagreed, and in respect of the latter, the reasons for the disagreement in advance of the trial. These practices generally pay dividends in the efficiency of the trial process, even if they may increase the compliance costs of civil litigation imposed for the parties. I also accept that Ulan has taken all reasonable steps to attempt to comply with the Court's previous directions for conferences by experts.
It would have been better, obviously, if the Court's normal practices had been adhered to. However, as I have said the greater evil here is not non-compliance with usual practices but the great risk that the hearing dates will be lost, costs wasted and justice delayed. Given there are limited number of liability experts (at the most three), subject to the final say of the trial judge, I would think it better to dispense with conferences, joint reports and concurrent evidence and to take the evidence of the liability experts individually. I very much doubt that, in this case, that procedure will add significantly to the length of the trial.
As I have said what happened to cause the plaintiff's injuries and why seem to be the principal issues in the case. Doubtless experts can give evidence of hypothetical possibilities provided that evidence is wholly or substantially based upon their specialised knowledge and the facts, or assumptions, relied upon are stated with clarity. But they cannot say what in fact happened as in the end those findings must depend upon acceptable lay accounts, even if those accounts are to be weighed and assessed in the light cast on the issues by the expert evidence.
I should also say that it is not obvious to me that the, now, three experts possess the same qualifications. Mr Cockbain is a safety engineer, Mr Koppe is a mechanical engineer and Mr Parish is a hydraulic engineer. Mr Parish may also hold qualifications as a mechanical engineer, but I am unsure. Although "blended conclaves" are not unknown, care has to be exercised before deciding whether they are appropriate. It is one thing to direct that two mechanical engineers confer and produce a joint report and another to order that a mechanical engineer and a structural engineer, say, confer and produce a joint report. Their disparate expertise would suggest that they are likely to approach the issues from different view-points. Different view-points may assist the Court in the fact finding process, but it does not follow that it is appropriate that differently qualified experts should confer to produce a joint report.

Medical experts

It is unfortunate perhaps that the medical experts have not conferred to produce a joint report. There may yet be opportunities for that to happen given, in my experience, medical experts very frequently confer by telephone rather than in person. If it is not possible for telephone conferences to be arranged and joint reports produced at this late stage, I would be of the view that the need for conferences and joint reports should be dispensed with in the interests of preserving the hearing date.
I appreciate that at this stage the parties should be preparing chronologies, a joint memorandum of issues, Court books and written openings. Dealing with Mr Koppe's statement might somewhat divert the defendant's resources, but only so far as Mr Parish is concerned. Dispensing with expert conferences and joint reports may in fact make compliance with the other requirements of the Practice Note easier.

Decision

So far as granting leave to the plaintiff to rely upon the amended statement of Mr Koppe is concerned, I find that there are exceptional circumstances within UCPR 31.28(4). Those circumstances are the combination of considerations that Mr Koppe's primary records have been available to both parties since 2016, it was always expected that he would give evidence, he was known to be an expert, and it is almost inevitable that opinion evidence would have fallen out from him in the witness box. The preparation of a detailed statement in advance of the trial enhances the fairness of the process. I would, however, exclude paragraph 64, and paragraph 75.17 (c) and (d). I would also refuse the plaintiff leave to run a case, by reference to Mr Koppe's opinions and his use of the word "interference", suggesting in any way that Ulan "covered up" the cause of the plaintiff's injury during the period between its occurrence and the arrival of Mr Koppe at the mine to carry out his investigation. It follows, given their interrelationship, that new particulars 7 and 8, but not 9 and 10 in the FASOC should be allowed.
My orders are: 1. Grant leave to the plaintiff to proceed on the basis of the further amended statement of claim relying upon particulars of breach of duty of the first defendant in paragraphs [7] and [8], but not paragraphs [9] and [10]; 2. Grant leave under Rule 31.28(4) Uniform Civil Procedure Rules 2005 (NSW) to the plaintiff to rely upon the amended evidentiary statement or report of Wouter Johan Koppe of 11 September 2019 with the exception of paragraph 64 and paragraph 75.17(c) and (d), provided Mr Koppe is made available for cross-examination if required. 3. Direct that the plaintiff is not to suggest by reference to sub-paragraphs 75 (3), (4), (5) and (6) of the report that the first defendant engaged in any conduct of a deliberate cover-up during the period between the occurrence of the plaintiff's injury and Mr Koppe's arrival at the mine to commence his investigation. 4. Grant leave to the first defendant to serve any expert report including from Mr Parish in response to Mr Koppe's statement or report by 10 October 2019. 5. Dispense with the need for Mr Cockbain, Mr Parish and Mr Koppe to meet, confer and produce a joint report. 6. Direct, subject to the discretion of the trial judge, that Mr Cockbain, Mr Parish and Mr Koppe may give evidence individually rather than concurrently. 7. Unless the parties agree that it can still be done, and subject to the discretion of the trial judge, dispense with the need for quantum experts of like qualification to confer and produce joint reports stating matters agreed, matter disagreed and in respect of the latter the reasons for the disagreement. 8. Direct the plaintiff's solicitors to provide a list of all material provided to Mr Koppe for the preparation of his statement and a copy of any part of that material, at the request of the first defendant, not already within the possession of the first defendant. 9. Refuse the first defendant's application for adjournment and confirm the date for commencement of the hearing of 14 October 2019. 10. Costs are in the cause.

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: 23 September 2019

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