Solicitors:
MGL Lawyers for the plaintiff
George Khoury & Co for the third and fourth defendants
File Number(s): 2019/00181425
[2]
BACKGROUND
This proceeding involves a claim by the plaintiff, who is a tiler by trade, for damages for personal injuries he suffered following a fall through the void of a bathroom in premises at Drummoyne on 12 April 2018.
The plaintiff commenced this suit on 11 June 2019. His pleading, as amended, featured claims against five defendants: the first and second defendants were owner occupiers of the premises; the third and fourth defendants had been performing construction works; and the fifth defendant was also someone who had allegedly performed some works. It is a matter of controversy what the relationship was between the third and fourth defendants and the fifth defendant, who happens to be their son; albeit that Counsel for the third and fourth defendants described him as being "estranged" from the third and fourth defendants.
Less than a week before the trial, the plaintiff settled his claim against the first and second defendants. Previously, the plaintiff obtained a default judgment against the fifth defendant, with damages to be assessed.
What is presently in issue is a tender by Counsel for the third and fourth defendants of a report by Dr Seamus Dalton, a consultant physician, dated 2 October 2020 as an expert report [1] . Dr Dalton had been engaged by solicitors for the first and second defendants. Amongst other things, Dr Dalton referred to and commented upon an expert report of Dr Giblin, an orthopaedic surgeon engaged by the plaintiff, which report was prepared on 15 April 2019.
This tender was made during the course of cross-examination of the plaintiff. Senior Counsel for the plaintiff objected to the tender on two bases. First, no prior notice had been given by the third and fourth defendants of their intention to rely upon Dr Dalton's report, contrary to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Secondly, for the purposes of s 136 of the Evidence Act 1995 (NSW), the plaintiff argues that admitting the evidence would cause 'unfair prejudice' to the plaintiff.
Some further circumstances relevant to the procedural chronology are as follows:
1. As at the date this proceeding commenced, the Court's Practice Note DC (Civil) said this about expert reports:
"8.6 Unless orders are made at the status conference, the Court will usually not allow parties to rely on medical reports and experts' reports served later than 28 days before the status conference. Reports which are not served in accordance with the Court's orders are usually inadmissible (see rule 31.28)"
In Schedule 1, titled 'Standard Orders for Hearings', the Practice Note also stated:
"3. Each party is to prepare a schedule of medical and expert reports and any other documents which are to be served. A copy of the schedule is to be served upon the other party/parties at least 3 days prior to the hearing date.
4. The schedule is to contain the dates of the reports and the dates of service."
1. On 18 September 2020, via a direction made on Online Court, the defendants were directed to serve expert medical evidence upon which they relied by 17 October 2020;
2. Senior Counsel for the plaintiff accepts that the plaintiff was served with Dr Dalton's report, but only as part of the case of the first and second defendants; and not in the case against the third, fourth and, for that matter, fifth defendants;
3. Counsel for the third and fourth defendants acknowledged that her clients were served with Dr Dalton's report, as part of the first and second defendants' case against the plaintiff, at least before the mediation occurred in July 2021;
4. Counsel for the third and fourth defendants accepts that her clients did not engage their own expert to respond to Dr Giblin's evidence;
5. It was only last Friday, 10 September 2021, on the eve of the hearing that the third and fourth defendants learned that the plaintiff's proceeding against the first and second defendants had settled.
Rule 31.28 of the UCPR falls within Division 2 of Part 31. To place this rule in context, rule 31.17 identifies multiple purposes of Division 2. Collectively, they manifest a policy that parties cannot unilaterally obtain expert evidence or serve it whenever they like. Rule 31.19 generally imposes an obligation on parties intending to adduce expert evidence to seek directions from the Court. So strict is that obligation that, subject to a contrary order by the Court, by r 31.19(3), expert evidence cannot be adduced at trial unless directions have been sought.
Rule 31.28 provides for disclosure of expert reports. It stipulates relevantly:
"(1) Each party must serve experts' reports and hospital reports on each other active party -
(a) in accordance with any order of the court, or
(b) if no such order is in force, in accordance with any relevant practice note, or
(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used."
Rule 31.29(2) - (3) provides parties who have been served with expert reports under r 31.28 with the opportunity to require the attendance of the expert for cross-examination; however that opportunity is practicably affected by how much time the opposing party has since being served with its adversary's report.
A clear purpose, when reading rr 31.28 and 31.29 together, in the rules is to ensure that parties are not ambushed at trial by their adversaries relying upon expert reports without prior notice. To the contrary, the Court rules and the parts of the applicable Practice Note clearly stipulate times for service of reports. This was augmented in this case by directions by the Judicial Registrar.
It is apparent that the third and fourth defendants have not served this report in accordance with r 31.28(1)(a), r 31.28(1)(b) or r 31.28(1)(c) of the UCPR.
Accordingly, in accordance with court rules, the third and fourth defendants require the Court's leave to rely upon Dr Dalton's report. Further, that leave cannot be granted unless the Court is satisfied that there are "exceptional circumstances" that warrant the grant of leave. In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], Campbell JA set out certain principles relevant to determining whether exceptional circumstances arose, for the purpose of the court rule.
The only circumstance alluded to here is that the third and fourth defendants were taken by surprise at the plaintiff's settlement with the first and second defendants; which meant that the first and second defendants, who commissioned Dr Dalton to prepare his report, would play no further role in the proceeding.
However, it is very relevant to my determination of whether to grant leave that not only did the third and fourth defendants have opportunity to commission their own expert to respond to Dr Giblin's report, but they also had the opportunity if, having chosen not to engage their own expert, to notify the plaintiff that they reserved the right to rely upon Dr Dalton's report; and to do so in compliance with the court's directions for the parties to serve their evidence by certain stipulated dates. This is the practice of 'back-serving' of expert reports noted by the Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [63]. By not taking that opportunity, the third and fourth defendants allowed themselves to become hostage to the possibility that they had no right, but would have to seek the Court's leave, to rely upon Dr Dalton's report in the event that the plaintiff settled with the first and second defendants. One of the many circumstances that the Court is to taken into account on an application of the present kind is the use that a party could have made of opportunities to do certain things (s 58(2)(b)(v) of the Civil Procedure Act 2005 (NSW)).
In a personal injury matter involving multiple defendants, it seems to me to be a common place, if not an obvious and foreseeable occurrence, that a plaintiff may settle with one or more defendants, but not another or others. I am not persuaded, therefore that it is an exceptional circumstance - irrespective of the breadth of that expression - that when a plaintiff settles with one defendant, that defendant's expert report will ordinarily not be available for use by another. I would go further and say that if, as has occurred here, only one defendant takes an active role in defending a proceeding, but another has been relatively passive; it is not altogether surprising that a plaintiff may, on the faith of the strength of the evidence arrayed against him or her, respectively, might be more inclined to settle a claim with the more active defendant than the more passive one. I do not regard that circumstance as being 'exceptional' either.
I take into account that, as a matter of fact, the plaintiff is aware, and has been aware for some length of time, of the content of Dr Dalton's report. But following its settlement with the first and second defendant, it could not be said that it has had notice of its likely tender by the third and fourth defendants. More pertinently, because of the lateness of the notice of tender by the third and fourth defendants, the plaintiff has practicably lost the opportunity of requiring Dr Dalton to attend for cross-examination for which r 31.19 provides. That would work an injustice to the plaintiff. Set against that is the inability of the third and fourth defendants to rely upon the report commissioned by other parties when they could have, but did not, notify the plaintiff of an intention, or at least a reservation of the right, to rely upon the report. If there be any injustice at all to the third and fourth defendants, it must be procedurally very slight and then of its own making.
To the extent that Ms Sinclair relies upon representations or statements made about expert evidence in the mediation, those statements or representations are inadmissible. The circumstance that she says some of the parties notified the others of expert reports to be relied upon may or may not infringe the Practice Note, but is no bar to the plaintiff relying upon Dr Giblin's report when, as I understand the position, that report was served in accordance with Court directions. The circumstance that the third and fourth defendant allegedly could not afford their own expert report is irrelevant.
I am not satisfied that exceptional circumstances arise which indicate that leave should be granted to the third and fourth defendants to rely upon Dr Dalton's report. I reject the unconditional or unqualified tender of his report. It is unnecessary to consider whether the report should be examined under s 136 as "unfairly prejudicial".
On the other hand, Counsel for the third and fourth defendants has cross-examined the plaintiff with a view to pointing out discrepancies between his evidence in chief and what is contained in history or statements attributed to the plaintiff by Dr Dalton. This has apparently been done with an objective of establishing a basis for challenging Mr Zheng's credit on the basis of inconsistent statements. In my view, and a view which was advocated by Junior Counsel for the plaintiff in argument, it is permissible for parts of Dr Dalton's report which were referred to in cross-examination, and specifically drawn to the plaintiff's attention for his consideration, to be adduced but limited, under s 136 of the Evidence Act 1995 (NSW) to his credit generally.
In my view, it is now appropriate for the third and fourth defendants to take Dr Dalton's report and redact it, or otherwise conceal those parts which were not the subject of cross-examination; and re-tender the part that I have permitted on the limited basis indicated. This should desirably be done after conferring with the plaintiff's legal representatives in the hope that further argument on the tender might be avoided, or at least limited.
[3]
Endnote
Initially, Counsel for the third and fourth defendants argued that it could be admissible as a business record, but withdrew that argument after it had been indicated that the report had been prepared whilst a proceeding was on foot and could therefore not qualify as a business record.
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Decision last updated: 17 September 2021