Anthony Glohe v Nicholas Simington

[2016] NSWDC 129

District Court

New South Wales

Medium Neutral Citation:	Anthony Glohe v Nicholas Simington [2016] NSWDC 129
Hearing dates:	23 - 27 November 2015; 30 May 2016
Date of orders:	30 May 2016
Decision date:	30 May 2016
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	Evidence admitted.
Catchwords:	TORTS - Negligence - Road accident cases – liability of drivers of vehicles – failure to look-out – pedestrian accidents; EVIDENCE – admissibility – opinion evidence – expert opinion – other matters – objection pursuant to UCPR 31.28(3)(c) – whether additional questions in chief after adjournment merely update on earlier report - circumstances giving rise to grant of leave – proceedings part heard from country circuit – leave granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Anthony Glohe (Plaintiff) Nicholas Simington (Defendant)
Representation:	Counsel: Mr D Toomey SC with Mr D Woodbury (Plaintiff) Mr P Ryan (Defendant)   Solicitors: Toby Tancred Solicitor (Plaintiff) Moray & Agnew (Newcastle) (Defendant)
File Number(s):	2014/239297
Publication restriction:	None

Judgment

1. Mr Urquhart is an expert who has been called to give evidence by the defendant in this case. The case started in Orange last year. Mr Urquhart has provided reports which have been served. The reports pre date last year's evidence. During last year's proceedings further evidence was given. Mr P D Ryan, who appears for the defendant, wants to ask Mr Urquhart additional questions based upon the evidence which was adduced last year; in other words, to ask him to marry up his assumptions with the evidence last year given. No updated report has been served.

2. Mr D R Toomey SC, who appears for the plaintiff, objects to the question because it will amount to oral expert evidence-in-chief without a report having been served. His objection is taken under UCPR 31.28(3)(c). Mr Ryan replies that his expert could have been asked these questions had the proceedings continued in Orange last year instead of becoming part heard.

3. I think there is some force in Mr Ryan's argument and it may be reflected in UCPR 31.28(4)(b). That provides that I may not grant the leave exempting a party from compliance with UCPR 31.28(3) unless I am satisfied that "the report concerned merely updates an earlier version of a report that has been served." An alternative provided by subs (4) is that "there are exceptional circumstances that warrant the granting of the leave."

4. I think Mr Ryan is right that, if the case had not finished last year, he would have been able to ask Mr Urquhart questions based on evidence given the same day or on earlier days so that his evidence could be up to date and relevant. Ideally, his client ought to have asked these questions of Mr Urquhart and then asked him to put his replies into a report which should have been served. But the course being taken by Mr Ryan is little different from the scenario I have described, where he would be able to ask these questions if the proceedings had occurred all over a day or two.

5. For those reasons, I propose to allow the questions.

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Decision last updated: 12 July 2016