Zraika v Walsh

Whether the order ought be made

Whether the risk of CMV infection ensued and caused the plaintiff's condition is plainly relevant to the principal remaining issue in the proceedings. Although the plaintiff bears the onus on causation on the balance of probabilities (s 5E of the Civil Liability Act 2005 (NSW)), the evidence would appear to provide a basis for the hypothesis that trauma was at least a possible cause. The evidence of at least one expert elevates the prospect to a likelihood. Although the question of causation is a legal one and not to be determined by the expert evidence alone (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [137] per Spigelman CJ), such evidence is highly significant in the present case.
The proposed test of the Guthrie sample is likely to be more probative than other samples already tested, for the reasons given in Professor Rawlinson's report. If the test is negative, it may exclude CMV altogether; if positive, it provides some support for hypothesis (3) set out above, which would assist the defendants' case.
But for the timing of the application, the matters in favour of making the order would be overwhelming. The gravamen of the plaintiff's opposition is that the making of the order could jeopardise the hearing date and add to the costs of the hearing. Moreover, Mr Higgs SC, who appeared with Mr Boyd on behalf of the plaintiff, submitted that it was not possible to predict how long the plaintiff would need to respond adequately to new evidence since his solicitors would almost inevitably need to identify and retain an expert virologist. Because of the likely commitments of persons of suitable expertise, it would, Mr Higgs submitted, be almost inevitable that the hearing date of 6 July 2015 would be lost. Moreover, expert conclaves which have already taken place might need to be reconvened with Professor Rawlinson and a further expert retained by the plaintiff.
Mr Higgs relied on Aon Risk Services Australia Ltd v Australian National University [2009] HCA; 239 CLR 175 (Aon) and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 (Expense Reduction). In Expense Reduction, the High Court applied Aon in the context of litigation in New South Wales to which the Civil Procedure Act 2005 (NSW) (the Act) applied. Mr Higgs submitted that, unlike a Royal Commission, adversarial civil litigation is to be conducted by reference to directions made for its orderly and efficient conduct. He contended that a hearing date (particularly where one has already been given and vacated) ought not be disrupted even where there is the prospect of potentially significant evidence becoming available. Mr Higgs emphasised Dr Harbord's opinion that testing of the Guthrie sample would be futile in light of the results of other tests.
Mr Butcher, who appeared on behalf of the defendants, submitted that Professor Rawlinson's evidence suggested that the test was not futile in that, because of the time at which the Guthrie sample was taken, the results of testing for CMV are likely to be more probative than later tests. He contended that the interests of justice favoured the order being made. He submitted that the question of causation was complex and that the delay had been fully explained. He also pointed to the lack of response by the plaintiff's solicitors to his instructing solicitors' letter of 18 March 2015.
Section 58(2) of the Act makes the matters referred to in s 56 and s 57 mandatory relevant considerations for the purposes of determining the dictates of justice: see also Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36]-[47].
The matters which I am obliged to take into account under s 57 are listed in s 57(1)(a) - (d). They relate to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings. All but the first matter weigh heavily in the balance against the making of the order. However, because of the importance of the question of causation and the potential probative value of the evidence sought to be obtained as a result of the order (which cannot be obtained without such an order, the plaintiff's consent not having been forthcoming), I consider that the "just" determination of the proceedings tends to favour the making of the order.
The matters which I may, as distinct from must, take into account, include the degree of difficulty or complexity to which the issues in the proceedings give rise: s 58(2)(b)(i) of the Act. I am satisfied that the identification of a cause of the plaintiff's condition is both difficult and complex and has involved consideration by different experts with various sub-specialities. Although there is no onus on the defendants to establish that the plaintiff's condition was caused by something other than the collision, their forensic prospects would be substantially improved were they able to do so.
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 activity is also a relevant matter: s 58(2)(b)(ii). Although the hearing date has already been vacated, this does not seem to indicate anything other than a conscientious attempt by the defendants' solicitors to investigate reasonable avenues to identify the cause of the plaintiff's condition and explain how it came to pass.
The degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective party is also relevant: s 58(2)(b)(iii). The evidence establishes that the impetus for this forensic inquiry came from a suggestion from Dr McLean, an expert retained by the defendants' solicitors. As soon as the suggestion was made the defendants' solicitors sought to investigate it and to obtain the plaintiff's solicitors' consent to the test being undertaken. I regard the delay as having been fully and satisfactorily explained.
Another matter which is germane to the exercise of my discretion is the use that any party has made or could have made of any opportunity available to the party in the course of the proceedings: s58(2)(b)(v). The defendants sought the plaintiff's consent to the test being undertaken in March 2015, before they received the report of Professor Rawlinson. Had consent been given at that time, the test could have been done some time ago when the hearing date was not as close. This is not to say that the plaintiff's' solicitors were not entitled to resist the application on the grounds that the time for the defendants to put on their expert evidence had long past but, had they made their position clear immediately, it may well have been that the motion could have been dealt with sooner. It was, of course, open to the defendants' solicitors to ascertain the position by contacting the plaintiff's solicitors again to obtain their response.
Although there is a risk that the hearing date will be jeopardised if the test is undertaken and comes back positive, there is also a prospect that the results of the test will be negative. This may be to the plaintiff's advantage and would not jeopardise the hearing date. This matter also weighs in favour of the order being made. It is undesirable that significant questions of causation be decided without evidence which might enable the issues to be determined with greater certainty.
Section 56 identifies the overriding purpose of the Act and UCPR as being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". I do not consider that it would be just for the defendants to be denied the opportunity of at least ascertaining the result of a test of the Guthrie sample. Although if the test is positive it may be necessary to adjourn the proceedings to permit the plaintiff time to investigate its significance and qualify a further expert, sight ought not be lost of the importance of a significant matter being decided on the whole of the relevant evidence. Although the consequences of making the order would be neither quick nor cheap if the proceedings were delayed, the consequences of not making the order would be that a possibly significant forensic avenue remains unexplored and the Court would be left to determine an important question in the absence of evidence which might be of paramount importance.
The Supreme Court Act 1970 (NSW) contemplates, by s 75A(7) and (8), that fresh evidence can be taken into account on appeal, albeit it only on "special grounds" if the evidence does not relate to matters after the hearing. I regard these provisions as an indication of the concern that factual issues be determined by reference to probative evidence. The results of the retesting of the Guthrie sample may turn out to be both "highly probative" (in that they could well make a difference to the result) and "credible" (being two of the three tests for "special grounds" before fresh evidence can be adduced on appeal: Atkins v National Australia Bank (1994) 34 NSWLR 155 at 160 per Clarke JA). In these circumstances it would not be consistent with justice for the defendants to be deprived of the opportunity to have this done when there is nothing to suggest that their solicitors were not acting with reasonable diligence and, indeed, much evidence to show that they have acted with speed and diligence to try to get this evidence so that it is available at the hearing. It is obviously preferable that such evidence be available to be weighed with all other evidence at the trial.
Section 59 of the Act provides that in any proceeding the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceeding and its final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case. It is a matter of speculation what the results of the test proposed by the defendants will be. It is by no means inevitable that any party will apply for the hearing date to be vacated once the results of the testing of the Guthrie sample are known. It is not necessary to repeat what I have said above, beyond adding that I consider that it is necessary for the fair and just determination of the issues in dispute to permit the defendants to have the Guthrie sample retested.
On balance I am persuaded that the defendants ought be permitted to have the Guthrie sample retested. This does not amount to a decision that the hearing date ought be vacated, since the need for any such application has not yet arisen.

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