Assaf v Charisma Developments Pty Ltd (Costs)

[2009] NSWSC 622

CITATION:	ASSAF v CHARISMA DEVELOPMENTS PTY LTD (COSTS) [2009] NSWSC 622
HEARING DATE(S):	15 August 2008
JUDGMENT DATE :	3 July 2009
JUDGMENT OF:	Hulme J at 1
DECISION:	I order the First Defendant pay 80% of the Plaintiff's costs. The order is made against only the First defendant which reflects an agreement arrived at previously between the parties.
PARTIES:	Maher Hamzak Rizk ASSAF Charisma Developments Pty Ltd Oz Formwork Pty Ltd
FILE NUMBER(S):	SC 20026/2006
COUNSEL:	Plaintiff - R Taylor Defendant: Z Officer (Solicitor)
SOLICITORS:	Plaintiff: Keddies Defendant: Henry Davis York

- 36 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

200026/2006
HULME J

Friday, 3 July 2009

ASSAF v CHARISMA DEVELOPMENTS PTY LTD & ANOR

JUDGMENT re COSTS

1 HIS HONOUR: The principal claim in these proceedings was a claim for damages consequent on the Plaintiff suffering injury during the course of his employment on a building site. I found for the Plaintiff and Judgment has been entered. In the course of my principal reasons I expressed concern at the number of medical reports tendered and observed that if the Plaintiff was to pursue an application for costs, his representatives should come prepared to demonstrate that the order should cover more than a smallish proportion of what I may refer to as the legal medical costs and solicitors’ costs in obtaining, perusing and dealing with the reports obtained. I went on to observe that somewhat similar considerations applied to an expert report on the issue of liability that was tendered during the hearing and in respect of which I made comments at the time. That report was by H. & D. Cowling Pty Ltd, the letterhead of which describes the organisation as Specialist Engineering Consultants.

2 In due course Counsel appearing for the Plaintiff did apply for costs, provided, without dissent, some information in that regard and made submissions directed to obtaining an order in the usual unqualified terms. These reasons are directed to that application and the submissions.

3 I should acknowledge at the outset that any need to obtain expert reports is something that solicitors must assess well before the time of trial and, as counsel for the Plaintiff submitted, the test is whether the obtaining of a report was reasonable and necessary at the time the report was obtained, not whether, with the benefit of hindsight, the report was necessary. Furthermore, while solicitors can control what is sought, their opportunity to control what is supplied is significantly more restricted. That is of course not to suggest that they should continue to allow, without protest, doctors to go outside their specialty or legitimate fields.

4 Account must also be taken of s 315 and s 318 of the Workplace Injury Management and Workers Compensation Act 1998. So far as is presently relevant, those sections provide:-

“315
(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.”
318
(1) (a)…
(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.
(2) The court is not to grant leave under this section unless satisfied that:
(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and
(b) the failure to grant leave would substantially prejudice the party’s case.
(3) The regulations may provide for exceptions to this section.

5 No excepting regulations were brought to my attention and my own researches have revealed none.

6 The Plaintiff’s Pre-filing Statement which was dated 24 March 2006 included, under the heading “Liability” reference to 4 items viz. a Workers Compensation Claim form, 21 pages of photographs and, in two parts the report of H & D Cowling Pty Ltd. Under the heading “Medical Reports” reference was made to virtually all of the reports predating January 2006 that I later refer to in a Schedule to these reasons.

7 On the other hand, having practiced or been otherwise involved in the field of personal injury litigation to some degree for over 35 years, one cannot but be conscious of the fact that as time charging and charging for photocopying have become more common and the method of charging means that charges increase with increasing volume of material, the number and size of reports obtained and used have increased, if not exponentially, at least very greatly. Furthermore, not infrequently, the reports deal with matters that, for many years, judges decided without particular difficulty and without the need for reports. Experts are now employed to do the things that solicitors and counsel used to do and costs are incurred in the employment of the experts and in the lawyers reading what the experts have said. It is not apparent that there has been any reduction in legal fees as a result of this “farming out” of work to others.

8 Not uncommonly, much of the reports are, or are almost a waste of time, dependent as they are on an acceptance or assumption that things have occurred as a Plaintiff claims or that a Plaintiff is as disabled as he says he is. Occupational therapy and actuarial reports are some that commonly fall into this category.

9 An appreciation of the issues that arise here requires some reference to the events that led to the proceedings. They are detailed in my principal reasons and it is sufficient to make these reasons understandable if I refer to only the most salient.

10 On 28 January 2003 the Plaintiff suffered substantial injury when he fell through a void left in a plywood “floor” being laid as the surface on which a concrete slab was to be poured. At the time the Plaintiff was employed as a formworker by the Second Defendant, a formwork sub-contractor. The First Defendant in the proceedings is the builder who was undertaking the construction of a block of units on the site and engaged the Second Defendant. The First Defendant’s site supervisor was a Mr John Stojanovski and the Second Defendant’s operations on the site were controlled by a Mr El Jendi. Both were present on site at, and for some time, before the Plaintiff’s fall.

11 The plywood was at ground level and the Plaintiff fell a distance of about 3 metres to the basement level, there being no significant structure between the 2 levels. The void - something of the order of 4 metres by 2.4 or 2.5 metres wide - had been left deliberately, it being located in the area that was destined to be a stairwell. According to the Plaintiff, the void was unfenced. With the exception of that matter of fencing, none of the matters in this or the immediately preceding paragraph were in dispute.

12 For completeness I might mention that in order to facilitate work by the First Defendant’s employees on one side of the void the Second Defendant, at the request of the First Defendant, had erected a “bridge” across the void, the carriageway of the bridge being some planks on which plywood have been affixed. The planks were of a nature commonly used in the erection of formwork and, according to the evidence each weighed between 30 and 40 kilograms and was between 3.6 and 4.5 metres in length. At the time of, and immediately before, the Plaintiff’s fall, he had been engaged in removing the 3 planks from across the stairwell void. The Plaintiff removed one of the planks successfully and, according to him, lifting normally and without any problem. He pulled it until he had it “to” – I infer fully or almost fully on or above – the fixed plywood and then carried it over his shoulder some little distance away to where similar sized planks were being used in the construction of further formwork. The Plaintiff then commenced to remove a second plank which he said was slightly longer than the first. In the course of his doing so the Plaintiff and the plank fell into the void.

13 Notwithstanding the Plaintiff’s stance on the issue of fencing, I preferred evidence from Mr Stojanovski that the void was fenced save and except for gaps, something of the order of 1.2 metres wide where the bridge had been, and that, prior to any removal of it, the bridge itself had been fenced. I concluded the bridge fencing had been removed at a stage of the bridge removal earlier than the removal of the planks and that the gaps had created a risk or at least an opportunity for someone to fall through and that was what had occurred.

14 Sub-headings within the report of H. & D. Cowling Pty Ltd provide an indication of the topics dealt with therein. Some of the sub-headings were:-

6 Specific Failures of Compliance with Legislation

7 Workcover Codes of Practice

8 Workcover Code of Practice – OH & S Induction Training for Construction, 1.4.1999

9 Workcover Code of Practice – Formwork, 22.6.1998

10 The Need for Safety Induction and Training

11 Prevention of Falls and Limitation of Severe-Injury

12 The Need for Safe Manual Handling

13 The Weight of the Timber ‘Walkway’

14 Review of the Alleged Facts in relation to the Responsibilities of the Head Contractor and Employer

15 Barricades

16 Conclusion

15 Mr Cowling’s conclusion was expressed as follows:-

I have already noted that the Plaintiff should not have been directed to undertake heavy manual handling without the employer having carried out a prior assessment.
In my opinion, based on my instructions it was not possible for one person to safely manually handle the said timber “walkway”.
In terms of the physical protection required around the stair opening the following was required by legislation.
Either, complete edge protection using a barricade, or
A means of limiting the height through which a person could fall to a maximum of 2 metres.
The Plaintiff was neither a certificated form worker nor was he a registered trainee.
Accordingly, in my opinion in order to comply with regulation 56 the Plaintiff should not have been permitted, let alone directed to work within a horizontal distance of less than two metres of the edge of any opening which had not been suitably barricaded in advance.
In my opinion if the requirements set down earlier in this report had been met – they are clearly spelled out in the Code of Practice for Formwork – it seems reasonable to suggest that this injury incident would have been prevented.
The corollary being in my opinion that, in the absence of meeting such longstanding duties and responsibilities as set out earlier in this report, the employer and the head contractor have demonstrated their collective failures to ensure a safe workplace.

16 The second of these conclusions was no doubt influenced by an assumption on which Mr Cowling proceeded, presumably reflecting either instructions to him or his misunderstanding of those instructions, that at the time of the Plaintiff’s fall, he was engaged in removing a “walkway” consisting of 3 planks skew-nailed together and which, on Mr Cowling’s calculations, weighed 213 kilograms each.

17 The Report extends to some 15 pages and it’s authors CV to another 3 pages. Attached are 7 appendices totalling some 150 pages, the titles and length of which are as follows:-

A	Expert Witness Code of Conduct	3 pages
B	The OH&S Act 2000 and Occupational Health and Safety Regulations 2001 – Relevant Parts	49 pages
C	NSW WorkCover Code of Practice OH&S Induction Training for Construction, 1.4.99	10 pages
D	NSW WorkCover Code of Practice Formwork, 22.6.1998 – Relevant Parts	53 pages
E	WorkCover Guide to Riggers Masses of materials [including timbers] – Relevant Parts	5 pages
F	National Code of Practice for Manual Handling [NOHSC:2005 (1990)] – Relevant Parts	24 pages
G	Draft National Code of Practice for the Prevention of Falls in General Construction August 2005 – Relevant Parts	7 pages

18 Mr Cowling’s report was tendered but after objection and some critical remarks by me, the tender was limited to the regulations and Codes of Practice included in it. So limited it became Exhibit F.

19 The cost of Mr Cowling’s report was $3,190 including GST

20 I turn to the question of whether the obtaining, and subsequent use, of Mr Cowling’s report was reasonable and necessary. If the void was unfenced as the Plaintiff said, the other matters referred to in paragraphs 10 to 12 above made it inevitable that the Plaintiff would succeed on the issue of liability. For many decades now it has been an elementary principle in the courts’ application of the law of negligence that those controlling building and other work sites have an obligation to protect workmen on such sites from the risk of falling significant distances. Absent other precautions, the obligation of reasonable care extends to fencing, in a manner calculated to prevent such falls, areas where falls might occur.

21 Furthermore, particularly if the void was unfenced, both Defendants clearly breached a number of provisions of the Occupational Health and Safety Act and, having regard to the terms of s 32(1) of the Act, more particularly, the Regulations. Those Regulations include the following:-

(i) An employer must take reasonable care to identify a foreseeable hazard that arose from the conduct of the employer’s undertaking and that has the potential to harm the health or safety of any employee of the employer - Regulation 9.
(ii) An employer must assess the risk of harm to the health or safety of (any employee of the employer) from any hazard identified in accordance with this Chapter - Regulation 10.
(iii) ... an employer must eliminate any foreseeable risk to the health or safety of ... any employee of the employer - Regulation 11.
(iv) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person…using… the premises… - Regulation 34.
(v) A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division - Regulation 35.
(vi) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person… using… the premises – Regulation 36.
(vii) A controller of premises must ... provide any employer who uses the premises concerned as a place of work with information about a foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person ... using ... the premises - Regulation 38.
(viii) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures:

(a) provision and maintenance of
(i) a stable and securely fenced work platform ..
.
(ii) if compliance with subparagraph (i) is not reasonably practical – secure perimeter screens, fencing, handrails ... or
(iii) if compliance with subparagraph (i) is not reasonably practical – other forms of physical restraint - Regulation 56.

22 The positions of the First and Second Defendants as respectively controller of the site and the Plaintiff’s employer and the undisputed matters referred to in paragraphs 10 to 12 lead inevitably to the conclusion that, if the void was unfenced, each defendant had breached a number of these provisions.

23 It follows, as the night the day, that if the presence or absence of fencing was the only issue on the topic of liability, one needed no expert report to assist in the determination of liability.

24 However, any reasonable preparation of the Plaintiff’s case must have involved a recognition that one or other of the Defendants might not accept that there was no fencing and, as occurred might call evidence that such fencing did exist. Accordingly, it was reasonable and desirable for the Plaintiff’s solicitors to have available to them evidence to support other bases of liability. Bases other than the absence of fencing, and their causal relationship with the Plaintiff’s fall are not as obvious and in those circumstances it seems to me that one cannot conclude that the engagement of someone with expert qualifications and the commissioning of a report from him, was inappropriate or unreasonable. Matters possibly relevant include the weight of the planks being moved and any additional strains or risks that may have arisen in consequence of the circumstance that the objects being moved were not wholly in close proximity to the Plaintiff. The matter of training was also of possible relevance.

25 Of course, the fact that the engagement of some expert, and the obtaining of a report, was appropriate does not mean that whatever form that report took and whatever cost that eventuated should be the subject of an order in favour of the Plaintiff against the Defendant. Nevertheless, and although I have reservations about a number of Mr Cowlishaw’s conclusions or their significance so far as the Plaintiff’s injury is concerned, it does not seem to me that they are outside the ambit of the report that the Plaintiff’s solicitor was fairly entitled to seek from someone with qualifications such as Mr Cowlishaw’s.

26 However, the volume of annexures falls into a different category. Their existence and terms were entirely unnecessary unless or until it became apparent that there would be some challenge to those of Mr Cowlishaw’s conclusions as were dependent on them. Furthermore, the Expert Witness Code of Conduct that Mr Cowlishaw specifically identified – Supreme Court Rules 31.17 and 31.28 and Schedule K as at 7 March 2006, the date of Mr Cowlishaw’s report – require that the report of an expert “specify … any literature of other materials utilised in support of the opinions”.

27 The requirement to “specify” is a clear indication that annexation or quotation of the materials was not required and the terms of the rules referred to are themselves an indication that the annexing of 150 pages of so, including matters so elementary in an industrial accident case as large extracts form the Occupational Health and Safety Act and Regulations was inappropriate.

28 I have no direct evidence of what happened when the Plaintiff’s solicitors prepared any copies of Mr Cowlishaw’s report after having received it, the only copies that I have seen being one tendered and one provided for my use. However, having regard to the way cases are prepared these days, I would infer, with a degree of confidence approaching absolute certainty, that all copies included those annexures. At the very least there will have been one copy for each Defendant, copies for Senior and Junior Counsel, one copy for tender and one copy for my personal use – something of the order of 900 pages in all. To the waste involved in this, one might reasonably expect to add time of solicitors and counsel in reading the material (including the extra copies no doubt made on the Defendant’s side of the record).

29 Uninstructed by the matter to which I am about to refer, I would take the view that this waste should lead to the Plaintiff being deprived of costs associated with the waste and having to bear, by set off or otherwise, some of the costs incurred by the Defendant in connection with this material.

30 However, in December 2006 the Uniform Civil Procedure Rules were changed. The new rule 31.27 requires that an expert report “include… any literature or other materials utilised in support of the opinions. “ (my emphasis) In the face of that requirement, I do not feel able to conclude that for Mr Cowlishaw to have done voluntarily about 9 months earlier what, since December 2006 has been compulsory was unreasonable. Accordingly I will make no special costs order in consequence of Mr Cowlishaw’s report.

31 The second area of concern lay in the volume of medical and like reports tendered on behalf of the Plaintiff. It extended to 659 pages, and this in circumstances where there was limited scope for argument except in respect of one issue as it were, at the edges.

32 Although the Statement of Particulars filed managed to list 60 problems, the Plaintiff’s medical complaints fell into six areas:-

Pain the neck;
His right ankle (including the part of his leg adjacent);
His lumbo-sacral spine;
Ulceration and other problems with his gastric system;
Psychiatric and psychological problems;
A sexual disorder.

33 The latter may have been associated with his psychiatric and psychological problems. It does not loom large in the medical reports and is sufficiently insignificant in the current context of costs for me to presently ignore it. Any problems with the Plaintiff’s neck also received little attention. In reports of 23 September 2003, 16 March 2004 and 12 November 2004, Dr Mahony records that there were no present complaints in that regard. Dr Ellis makes a similar observation in his reports of 21 November 2003 and 22 October 2004.

34 Nor do I see any basis for criticising the attention given by those with some specialty in the areas to the issue of the Plaintiff’s psychiatric and psychological problems or difficulties with his gastric system. In the medical area is the attention to the Plaintiff’s right ankle and lumbo-sacral spine that has inspired my reservations together with the content of some of the reports of the doctors apparently specialising in those areas. To these matters may be added portions of two reports dealing with the Plaintiff’s work and domestic capacities consequent on his accident.

35 I also make it clear that I see no basis upon which I could think of criticising the existence or terms of those reports as were sent from one treating doctor to another, or to the Plaintiff’s general practitioner in the ordinary course of the Plaintiff’s treatment. Nor, of course, can the Plaintiff’s side of the record be criticised for the reports address to the Defendants or those standing in their shoes. I may add that there was no evidence placed before me as to when those reports came into the Plaintiff’s solicitor’s hands beyond the fact that they were included in the list of reports forming part of the Plaintiff’s Pre-filing Statement.

36 To appreciate the sheer volume of material and to reduce to some extent the quantity to be referred to in the body of these Reasons, it has been convenient to include as a Schedule to these Reasons, a chronological list of the reports tendered on behalf of the Plaintiff, adding therein reference to the specialties of their authors and a summary of some of them, particularly those addressed to the Plaintiff’s solicitors. I have also included in that Schedule the information presented to me by the Plaintiff’s counsel, without dissent, as to the extent to which payment has already been made for the reports.

37 However, it would be simplistic to consider the matter merely on the basis of the volume of material and it is necessary to reflect on what at least some of that material was. Furthermore, counsel acting for the Plaintiff maintained that most of the reports in this area had been obtained previously in connection with the Plaintiff establishing the 15% threshold under the Workers Compensation Act and only a small proportion were the subject of charge in the proceedings before me.

38 The fact that often a Plaintiff’s condition may not have stabilised at the time of a first report and a considerable period may elapse before first reports and the time of any trial are also often legitimate reasons for obtaining further, or “refresher”, reports. I accept also that it is not unreasonable for a Plaintiff’s legal advisers, having received a report that is not as favourable as might be wished, to seek a report from another doctor and, given the numerous issues that may arise, e.g. the Plaintiff’s current condition, past treatment, whether future treatment is likely, and if so at what cost, the work or pleasure activities that are impossible or should be avoided, it is not necessarily unreasonable for more than one report to be obtained from a doctor. It is also commonly reasonable to seek confirmation of one doctor’s opinion by seeking an opinion from another. Any failure to include in the reports tendered, reports from treating doctors also runs the risk of adverse comment.

39 On the other hand, it does not follow that, whatever may be the situation in respect of the matters mentioned and however much duplication there may be, the cost should be laid at the door of an unsuccessful Defendant. A consideration of the reports in this case leads me to the view that significantly more than were reasonably required were obtained. Furthermore, not only were the number obtained unduly large, but little or no judgment seems to have been exercised by way of limiting the number used in the proceedings and, as I observed in the case of Mr Cowlishaw’s report, no doubt copied and considered numerous times. No attempt seems to have been made to confine doctors to their specialty. While undoubtedly the Plaintiff’s legal representatives were under an obligation to do the best for their client, their obligations were also to “facilitate the just quick and cheap resolution of the real issue in the proceedings”.

40 The material before me does not disclose what information may have been available to the Plaintiff’s solicitors previously but a convenient starting point for present purposes is September 2003 when Dr Mahony, a orthopaedic specialist reported to Keddies. This was over 6 months after the Plaintiff’s accident and the principal operative procedure (to his ankle) and as Dr Mahony’s report makes clear, when a deal of radiological examination had been made of the Plaintiff’s ankle and lumbar spine. Dr Mahony recorded complaints of pain in the ankle and that there had been a comminuted fracture of the tibia involving the ankle joint.

41 Dr Mahony also recorded complaint of lower back pain, observing that he was unable to determine whether it radiated to the lower limbs albeit there was specific pain in the right lower leg. He observed that on examination straight leg raising was possible to about 60 degrees on both sides, that spinal movements were possible in flexion with the fingertips reaching above the knee level and continued, without explanation, “little extension and lateral flexion was carried out and rotation was within normal limits”. Dr Mahony observed that x-rays of the lumbo-sacral spine showed early degenerative changes and annexed a report of Dr Mackie of 12 May 2003. That report was to the effect that a CT scan of the lumbar spine had revealed “a left lateral disc bulge at the L4/L5 level and a shallow central disc bulge at the L5/S1 level with bilateral mild nerve root compression”. Dr Mahony remarked that the Plaintiff had developed symptoms referable to a low lumbar back strain consistent with a fall on 28 January 2003.

42 Dr Mahony further recorded that operation on the Plaintiff’s ankle had been performed by Dr Lunz, whom the Plaintiff had seen a number of times and that the Plaintiff had been referred to Dr Mahony by Dr Al Sayed. Dr Al Sayed is a general practitioner and simple enquiry of the latter could have been expected to provide a good indication of any areas not covered by Dr Mahony.

43 Despite Dr Mahony’s opinion that it was too early to “assess a final prognosis or permanent disability” until about 12 months from the time of injury, the Plaintiff was sent to see Dr Ellis on 18 November 2003 for a medico-legal report. In the report of 21 November 2003 that ensued, Dr Ellis, in addition to addressing the ankle and back problems, observed that the Plaintiff was unlikely to be able to return to physically demanding work, was suffering from internal ulcers as a result of the accident and its sequelae and, for a further 12 months, was in need of 12 hours of domestic care and assistance each week. Dr Ellis also included radiological reports of the Plaintiff’s ankle, dated 28 May and 1 September 2003 and a copy of the same report of Dr Mackie of 12 May 2003 that Dr Mahony had included. Duplicate copies of these reports were included in the Exhibit.

44 Dr Ellis made substantially greater reference to the Plaintiff’s back than Dr Mahony had done. He recorded:-

“Low back pain persists aggravated by bending, lifting, prolonged standing, sitting and walking. Pain spreads to the back of his left leg to the foot and there is numbness and paraesthesiae intermittently in the back of his left leg. His right leg is not affected by referred pain…
He limps constantly because of pain in the left ankle….
ON EXAMINATION
Back : On flexion the fingertips reached the mid calves, other movements, rotation, lateral flexion, extension reduced to ¾ of the normal range, the limits of movement were painful. Spinous processes were tender, alignment normal.
Lower Limbs : Straight leg raise right 60, left 40, ankle and knee jerks equal and brisk, sensation and power in tact on the left side. Probably there were no neurological signs in the right lower limb…
IMPRESSION
As a result of the fall at work on 28.1.03, Mr Assaf has suffered severe injury to his right ankle and significant injury to his back affecting the lumbar spine with damage to the lower two intervertebral discs. Consequent on the back injury there are secondary effects in his left lower limb, referred pain and neurological deficit.”

45 Dr Ellis went on to say that he thought further deterioration would occur in both the ankle function and back and he thought eventually the Plaintiff would require an ankle joint fusion. He also said it was too early to assess permanent impairment.

46 On or about 7 June 2004, Keddies received from Dr Lunz a detailed report concerning the Plaintiff’s ankle. The report referred to reviews and x-ray examinations throughout the period from January 2003 to April 2004, the likelihood of an ankle fusion in the future, that the Plaintiff was then unable to perform pre-injury work, a (guarded) possibility that after such a fusion he might be able to undertake more strenuous duties, that he currently needed assistance with domestic duties but that the extent of this and the nature of his future work activities was best assessed by an occupational therapist or the like. The report identified past and future costs and went on to record an assessment of the Plaintiff’s Whole Person Impairment in consequence of the ankle injury at 15%.

47 In that report Dr Lunz also recorded that X-rays of the Plaintiff’s lumbar spine taken in January 2003 were normal. At Keddies’ requests he provided supplementary reports on 5 November, 1 December 2004 and 6 May 2005. The latter report added nothing to what was said in the report of 1 December 2004 and, so far as can be judged from the terms of the two reports was unlikely to have done so.

48 On 19 October 2004 at the request of Keddies, Dr Ellis saw the Plaintiff again and provided another report dated 22 October 2004. The report was detailed in relation to the Plaintiff’s ankle and back. In relation to the back, the report records similar complaints to those referred to in the November 2003 report except that there was some increase in the sensory and other deficits in both lower limbs and the record of examination indicated a reduction in the range of all movements. Dr Ellis referred again to the CT scan of Mr Mackie and to an MRI of 24 March 2004, said that the Plaintiff had suffered extensive injury to his back that was disabling, and that the Plaintiff was in need of rehabilitation assistance and it was unlikely that he would ever return to physically demanding work. Reference was again made to the Plaintiff’s internal ulceration, that that would need constant supervision and treatment and that the plaintiff needed 12 hours of domestic care and assistance a week. Dr Ellis also included in the report assessments of the Plaintiff’s WPI incapacity. He said that that due of the lumbar-sacral spinal injury was 13%, that due to the right leg 12%, that due to the gastro-intestinal and other internal problems 20% and, combining all 3, there was an impairment of 38%.

49 On 12 November 2004 Dr Mahony, who would seem to have continued to review – one might infer with a view to treatment - the Plaintiff on 12 March, 21 April, 21 July, 13 and 16 August 2004 provided 4 reports, each dealing with a different topic, in response to a request from Keddies. Again, both in the original and in the Exhibit there were numerous copies of radiological reports.

27.03.03	Dr Rooijen	Right ankle
24.04.03	Dr Rooijen	Right ankle
12.05.03	Dr Mackie	CT lumbar spine
12.06.03	Dr Rooijen	Right ankle
18.06.03	Dr Haindl	Bone scan right ankle
30.06.03	Dr Haindl	Bone scan right ankle
01.09.03	Dr Korber	CT scan right ankle
15.10.03	Dr Pereira	Right ankle
29.01.04	Dr Rooijen	Right ankle
11.02.04	Dr Hunter	Lumbo-sacral spine
02.08.04	Dr Angelides	Bone study WRT ankles
13.08.04	Dr Mackie	Right ankle

50 Dr Mahony recorded that on 12 March, 21 April, 21 July and 13 August the Plaintiff complained of low back pain and difficulty with his ankle. The report contains no reference to problems with the left leg and the only examination of the back mentioned was one on 12 March. In that connection Dr Mahony said:-

“Spinal movements were possible in flexion with the fingertips reaching the low thigh. Remaining movements were within normal limits. … Straight leg raising was possible to about 75 on both sides. The tendon reflexes were within normal limits.”

51 Dr Mahony referred to the radiological reports and concluded that the Plaintiff had developed symptoms referable to a low lumbar disc lesion at the L4/5 and lumbosacrol levels with nerve root irritation affecting the lower limbs. The only record in the report of symptoms of such irritation seems to be complaints of a numb feeling in the Plaintiff’s right leg.

52 In one of the other reports of this time Dr Mahony expressed the view that an arthrodesis of the right ankle might be required and estimated the costs of the such a procedure and, as he recommended, removal of the metal that had originally been inserted. In another of the reports of 12 November he responded to questions asked by Keddies advising inter alia that the Plaintiff was unfit for a variety of occupations including labouring, carpentry and formwork, that he should restrict his future activities to ones not involving significant bending, lifting, walking, climbing or squatting and that the plaintiff required domestic assistance with handyman tasks for 10 hours a week. In the fourth report of this time Dr Mahony made an assessment of the Plaintiff’s WPI. He attributed 10% to the Plaintiff’s back, 16% to the ankle, some to other matters, with the total being 29%.

53 It would seem that the Plaintiff had gone on 5 August 2004 to see another orthopaedic surgeon, Dr Kahil. The doctor’s notes of that visit contain detailed reference to the Plaintiff’s ankle and its consequences but no references to other problems. The notes record that Dr Kahil told the Plaintiff that amputation was unlikely. It appears that his only recommendation was that the Plaintiff use a rocker bottom shoe. I was informed without dissent from the bar table that Dr Kahil had supplanted Dr Mahony as the Plaintiff’s treating orthopaedic specialist. Dr Kahil was asked for a report and provided one on 27 February 2005 in which he assessed the Plaintiff as suffering from:-

1. End stage traumatic osteoarthritis of right ankle joint secondly to a pilon fracture.

2. Right S1 nerve root irritation with possible radiculopathy.
3. Stress related peptic ulcers.
4. Depression.
5. Sexual disorder.

54 In the report, Dr Kahil recommended that the Plaintiff have an ankle arthrodesis with bone grafting but that another option was total replacement of the ankle joint. He said that “the irritative right side S1 radiculopathy was too mild for surgery and he should be given a chance for conservative treatment, including activity modification (to avoid twisting, bending and axial loading). Dr Kahil also made an assessment of the Plaintiff’s degree of impairment in respects other than depression - a matter he suggested should be left to a psychiatrist. Otherwise his combined impairment assessment was 49% and the individual components were:-

For the gastro intestinal tract problem 15%
Lower lumbar disc lesions and consequences 10%
Ankle problem 12%
Ankle fracture 8%
Sexual impairment 18%

55 When remarking on the Plaintiff’s back, Dr Kahil said that the Plaintiff complained of lower back pain radiating to the right leg. Recording the results of examination, he remarked that there was mild alteration of sensation on parts of the right foot, that straight leg raising was about 80 degrees.

56 There followed on 11 March 2005 a further report from Dr Mahony providing a further assessment of the degree of impairment from which the Plaintiff suffered. The assessment was:

Lumbar spine 8%
Right lower extremity 16%
Right lower limb – daily living activities 3%
Combined 25%

57 A report dated 27 April 2005 was also obtained from Dr Rea whose letterhead refers to his specialty as “Plastic and Reconstructive Surgery”; “Surgery of the Hand”. Dr Rea thanked Keddies for the large file they had sent him and confined his attention to the Plaintiff’s back and ankle. He observed that the Plaintiff’s scars on the ankle and donor site of the bone graft, presumably associated with the operations the Plaintiff had in early 2003, were flat and, it would appear, displayed no indication of problems. Dr Rea opined that the Plaintiff would not be able to return to his pre-accident type of work, would require domestic assistance of 15 to 20 hours a week for the next 6 months (though he had earlier observed that the Plaintiff was “not limited in any domestic activity as it was not his custom to carry these out”). He said that at the stage of his report joint replacement of the ankle would not be appropriate and it might be better to carry out a fusion operation first. Dr Rea assessed the Plaintiff’s impairment due to the ankle injury at 16%, due to the scarring at 5% with a combined figure of 20%.

58 Dr Rea’s report suggests he gave more attention to the Plaintiff’s back than perhaps did Dr Mahony. Dr Rea recorded a complaint of pain in the lower back radiating down the Plaintiff’s left leg a location that Dr Rea emphasised having noted that in Dr Kahil’s report the pain was said to radiate down the right leg. Dr Rea noted straight leg raising on each side appeared to be of full range.

59 Then on 21 June 2005 a report was received from Dr Korber. The report indicates that Dr Korber, whose letterhead is in the name of Consultant Radiology Services Pty Ltd, reviewed a series of radiological records at Keddies’ request. Although many of the earlier reports do not purport to be exhaustive as to the radiological reports reviewed, it is clear that all those considered by Dr Korber had been considered previously. The following table indicates by whom.

Date	Description	Previous consideration
12.05.03	Lumbar spine x-ray	Dr Mahony 23/9/03 Dr Ellis 21/11/03
12.05.03	Lumbar spine CT	Dr Mahony 23/9/03 Dr Ellis 21/11/03
28.05.03	Ankle x-ray	Dr Mahony 23/9/03 Dr Ellis 21/11/03, 22/10/04
11.02.04	Lumbar spine x-ray	Dr Mahony 12/11/04
12.02.04	Lumbar spine CT	Dr Mahony 12/11/04
24.03.04	Lumbar spine MRI	Dr Ellis 19/10/04 Dr Kahil 27/2/05

60 That was not the end of the doctors’ reports obtained but it may be an appropriate place for me to pause to reflect on the history so far.

61 Prior to 23 November 2004 the date of Dr Kahil’s first report, Keddies had obtained reports from Dr Lunz, Dr Ellis and Dr Mahony. There were no significant differences between them as to the situation of the Plaintiff’s right ankle. Their assessments of the Plaintiff’s WPI in consequence were -De Lunz 15%, Dr Ellis 12% and Dr Mahony 16%. All envisaged that the Plaintiff would or might require an ankle fusion in the future. There was difference in the estimates of the costs of such an operation. Dr Mahony estimated $10,850 while Dr Lunz said $4000 although it is not clear that Dr Lunz was taking into account all of the ancillary expenses to which Dr Mahony referred. Dr Ellis in his report of 22 October 2004 estimated the cost at $10,000.

62 Dr Lunz contributed almost nothing so far as the Plaintiff’s back was concerned and there was a difference in opinion of Dr Mahony and Dr Ellis concerning that. In summary, Dr Mahony had said in September 2003 that early degenerative changes were apparent and that the Plaintiff had developed symptoms referable to a cervical strain and a low lumbar back strain consistent with the fall on 28 January 2003 an, in his report of 12 November 2004 that the Plaintiff had developed symptoms referable to a low lumbar disc lesion at the L4/5 and lumbosacral levels with nerve root irritation affecting the lower limbs. Dr Ellis had said in 2003 that the fall at work caused significant injury to his back affecting the lumbar spine with damage to the lower two intervertebral discs and that in consequence there were secondary effects in his left lower limb, referred pain and neurological deficit. In his October 2004 report, Dr Ellis referred to an increase in the sensory and other deficits in both lower limbs, a reduction in the range of all movements and described the back injury as extensive and disabling.

63 How much of that difference was due to differences in the Plaintiff’s account of symptoms may be a moot point but that difference did justify some further enquiry on the matter. It was not unreasonable therefore for Dr Kahil to be asked to comment. However, I see no basis for concluding that he should also have been asked for yet another report on the Plaintiff’s ankle.

64 (When Dr Kahil did report on 27 February 2005 on the Plaintiff’s ankle he also envisaged fusion. In his assessment of impairment due to ankle problems, he included 2 components, valued at 12% and 8% but it is not clear the extent to which the total should be reduced from the simple addition of these figures. Dr Kahil did not then address the cost of an operation nor the Plaintiff’s work or domestic incapacity.)

65 Dr Kahil’s report on the Plaintiff’s back meant that there were then 3 dealing with that topic. Both by what it said in relation to the straight leg raising and to the limb affected by the radiation of pain and in what it did not say by way of further symptoms, it also raised a question as to the extent of the problem. However, when one adds to the reports of Drs Ellis, Mahony and Kahil the radiological reports, it seems to me that reasonable preparation of that aspect of the Plaintiff’s case had occurred. Although there were differences between the 3 doctors, the differences were not radical and the WPI assessments by them in respect of this aspect were 10% in the case of Drs Mahony and Kahil and 13% in the case of Dr Ellis.

66 The matters to which I have referred lead to the conclusion that, at least so far as any liability of a defendant for costs is concerned, there was no occasion for the obtaining of a report from Dr Rea on either the Plaintiff’s back or ankle beyond possibly a hope that his report would be more favourable.

67 I do not however take the same view in the case of Dr Korber if, as seems to be the case, he was specialist radiologist. Although the records reviewed by him had been considered by the other doctors to whom I have referred, so significant were some of those records that I do not regard it as unreasonable for them to be reviewed by a specialist in that area.

68 However, as is apparent from the schedule the doctors’ reports did not stop at those I have mentioned.

69 On 11 March 2005, Dr Mahony revised his WPI assessment so as to reduce it and limit the matters taken into account.

70 On 12 August 2005 Dr Ellis reported reviewing the file of the treating gastroenterologist and notes from the Bankstown Hospital where the Plaintiff had had some treatment for his internal ailments. The documents relating to that area of the Plaintiff’s problems do not indicate any significant issue and I am unable to see what Dr Ellis could contribute to the topic, even assuming he had some relevant expertise. The terms of the report indicate that he had been asked by Keddies to address a number of additional questions that, when regard is had to what had gone before, seem unnecessary.

71 That last sentence applies also to Dr Ellis’ report of 21 December 2005. His report of 13 June 2006 was appropriately required by way of response to a report from Dr Silver obtained by one of the Defendants.

72 Dr Kahil’s made supplementary reports of 23 September 2005, 16 January 2006 and 27 November 2006 in response to 3 letters of request from Keddies requesting information on the following topics. The first request encompassed items (iv) to (v) the second (vi) to (x) and third request the balance:-

(i) The plaintiff’s fitness for pre-accident employment;
(ii) Whether ankle problems were likely to increase as the Plaintiff aged;
(iii) An opinion as to the cost of all future treatments including consultations with specialists and other doctors, surgery, physiotherapy and medication;
(iv) Whether the Plaintiff had received, and whether he had informed Dr Kahil of having received, any gratuitous domestic care;
(v) Whether the Plaintiff would require domestic assistance with the heavier aspects of domestic duties e.g. home repairs and lawn mowing;
(vi) An opinion in respect of Dr Korber’s report;
(vii) Confirmation as to causal nexus between the Plaintiff’s injuries and accident;
(viii) Opinion as to the Plaintiff’s work capacity;
(ix) Opinion as to the Plaintiff’s need for future treatment and the cost of all treatments;
(x) The hours per week needed by the Plaintiff for domestic care and assistance;
(xi) When the Plaintiff would need both arthrodesis and arthroplasty surgery;
(xii) The cost of both forms of surgery;
(xiii) “Which of the two proposed surgeries” the Plaintiff was “more likely than not to undergo, and when”;
(xiv) The possibility and/or probability of the Plaintiff requiring both proposed surgeries;
(xv) When a second surgery would be required if the first was unsuccessful;
(xvi) The likelihood of the initial surgery being unsuccessful.

73 While undoubtedly some of these matters involved Dr Kahil’s expertise, a number did not. As to others, in light of the information previously available, and Dr Kahil’s first response the enquiry was unnecessary. Summarised that first response was:-

(i) No;
(ii) Yes;
(iii) Very high, although the doctor could not give a certain figure;
(iv) No; and
(v) Yes; The doctor “imagined” 2 days per week but had no experience in assessing the hourly rate for such assistance.

74 Dr Al Sayed provided a report on 10 October 2005. As to 90% thereof it consisted of quoting reports of others and as to about 99% thereof added nothing, even by way of additional authority, to information previously provided and not likely to have been in issue.

75 Some indication of the degree of repetition involved in the reports addressed to Keddies and tendered by the Plaintiff is also apparent from the following list of topics and reports that dealt with those topics:-

Assessments of the Plaintiff’s degree of incapacity.
7/6/04 Dr Lunz ankle 15%
22/10/04 Dr Ellis ankle 12% spine 13% total 38%
12/11/04 Dr Mahony ankle 16% back 10% total 29%
1/12/04 Dr Lunz ankle 15%
27/2/05 Dr Kahil ankle 12% + ~ 8%, back 10% total 49%
11/3/05 Dr Mahony lower extremity and lower limb 16% + ~ 3%, back 8%, total 25%
12/8/05 Dr Ellis total 38%

The Plaintiff’s work and personal incapacities
21/11/03 Dr Ellis
22/10/04 Dr Ellis
12/11/04 Dr Mahony
10/1/05 The Occupational Health Assessment Centre
27/4/05 Dr Rea
23/9/05 Dr Kahil
21/12/05 Dr Ellis
16/1/06 Dr Kahil
13/6/06 Dr Ellis
5/3/07 Prudence Consulting

Assessments of future costs
7/6/04 Dr Lunz
12/11/04 Dr Mahony – excision of metal and arthrodesis
23/9/05 Dr Kahil
16/1/06 Dr Kahil - excision of metal, arthrodesis and arthroplasty
27/11/06 Dr Kahil - excision of metal, arthrodesis and arthroplasty

76 To the matters to which I have so far referred one must add that the Plaintiff also tendered some 77 pages of notes from the Prince of Wales Hospital covering the period January to early March 2003, some 18 pages of notes from the Bankstown Hospital dealing with the Plaintiff’s treatment there in early May 2005 and the numerous reports referred to in the Schedule that were not addressed to Keddies. As might be expected, those other reports added nothing or virtually nothing to the generally later and more comprehensive reports. However, it is to be inferred that the same degree of copying was involved and proper preparation of those receiving the other reports would have involved some consideration of them. One of the obligations of a solicitor preparing a case for litigation is to sort out the wheat from the chaff and not simply copy and employ every piece of paper that is obtained or obtainable. It is apparent that that was not done in this case.

77 In judging the appropriateness of much that was done by way of preparation of the Plaintiff’s case it is also important to bear in mind the following. From the day of the Plaintiff’s accident there could be no doubt he suffered a major injury to his ankle. From no later than Dr Mahony’s reports of 12 November 2004, there could be no doubt that the Plaintiff had suffered in his fall on 28 January 2003 a significant injury to his back. No-one with any experience in the field of personal injury litigation could have the slightest doubt that combined, these 2 injuries would severely limit the Plaintiff’s ability to engage in physically demanding occupations in the future and that, faced with that report of Dr Mahoney and the October 2004 report of Dr Ellis, any judge would so find. Keddies claim to be “Insurance Law Specialists”. They devoted a grossly excessive amount of work after November 2004 in pursuing the topic of the Plaintiff’s work capacity.

78 The extent to which the consequences of those injuries would affect the Plaintiff’s non-working life was a different question but one which was bound to depend a great deal on the Plaintiff and his reaction to the injuries and, in the context of litigation, on the extent to which he would be believed when he said he could not do things or that doing them hurt. In this area also, it seems to me that the effort expended in seeking the opinions of others was substantially out of proportion.

79 I take a similar view in relation to the reports of the Occupational Health Assessment Centre of January 2005 and Prudence Consulting of March 2007. Prior to the first of these the matters referred to in the immediately 2 preceding paragraphs were apparent. So also was the fact that the Plaintiff had some psychiatric and psychological problems referred to in the 2004 reports of Dr Younan and Mr Metry. Assuming Keddies made the most elementary enquiries of the Plaintiff his past employment activities would have been known. So also would be the fact that he had migrated to Australia and that, while his command English was not perfect, it was reasonable. Against this background it is impossible to believe that the degree of study apparent in the 20, or if the Job Markets material is included, 30 page epistle from the Occupational Health Assessments Centre was necessary or reasonable. Certainly is this so in the context of requiring a defendant to pay for it and for all the attention the lengthy document presumably was given thereafter.

80 I should give some indication of the extent of that study and report. A covering letter summarised the result of the Assessment was to the effect that:-

(i) but for the accident the Plaintiff would have continued working as a formworker

(ii) he would have been able to open his own formwork business and follow a number of identified occupations

(iii) post-injury the Plaintiff’s only possible employment option is process work but because of his inexperience in that area, his psychological symptoms and deteriorating physical condition, he was unlikely to be successful in that area.

81 The report fell into 2 parts. It is recorded in the Functional Capacity Evaluation part of the report that it was prepared on the basis of 3 hour sessions with the Plaintiff and documents provided by Keddies. Included in that part of the report are sections dealing with:-

The History of the Injury


Treatment History
(In this section reference is made to the surgical procedures carried out on the Plaintiff and the physical disabilities apparent in the radiological reports.)

Current Pain Description

Current Reported Functional Limitations

Physical Examination
Active Joint Range and Associated Muscle Strength
Cooperation and Consistency of Performance
Physical Work Limitations
The Job Description of his Previous Employment
Current Physical Capacity Compared with that Job Description

82 Unsurprisingly, within that latter section, and which occupied almost a page, there were observations to the effect that the Plaintiff demonstrated an inability to physically undertake the normal duties involved with formwork and was unable to work in jobs requiring prolonged walking, standing or stair climbing due to his ankle symptoms. It was also said that the Plaintiff would be suited to some form of sedentary work that involved manual dexterity but with limited lifting of weight so long as he could frequently change his sitting posture and stand. He was said to be unsuitable for operating a small mixed business.

83 In the Vocational Assessment part of the report are sections dealing with:-

History of the Injury

Current Functioning (setting out the Plaintiff’s reported problems)

Current Treatment

Education and Training

Employment History

Occupational Test Data (Including arithmetic, spelling and reading tests)

Interest Tests (including an explanation of certain “Persuading” and “Organising” scales)

Transferable Skills (i.e. skills possessed by the Plaintiff that might be transferred to a new job)

Post Injury Employment Barriers

(Under this heading it was recorded that there had been administered to the Plaintiff tests for depression, anxiety and Somatisation, i.e. being overly concerned with and thinking too much about physical problems.)

Specialist Opinion
(Under this heading there were quotes from 6 of the specialist medical reports included in the group relied on by the Plaintiff. The selection and context indicates that there must have been a deal of reading of those reports.)

Post Accident Vocational Options and Conclusions
(Included in this section were the following remarks:-

“The Functional Assessment indicates that he is unable to perform his pre-accident occupations of form worker, cook, cleaner or fruit picker.

Mr Assaf reported that, post accident, his occupational goal is to operate a small supermarket…

However the sustained standing and the heavy lifting required significantly limit his capacity in this area.

… Although he has had extensive psychological and psychiatrist treatment, Mr Assaf’s psychological symptoms persist. His constant pain and irritability reduce his employability…

… From a functional point of view, process work would be appropriate if…

However, the vocational assessment indicates that Mr Assaf is unlikely to be successful in this type of work. It is not in line with his work experience or his interest profile.

It is more likely than not therefore, that he will not find suitable work now or in the foreseeable future.”

84 I do not for one moment suggest that it was inappropriate to have someone like the Occupational Health Assessment Centre provide a report on the Plaintiff’s employment prospects. It is just that any such report and the work that lay behind it should be within reasonable bounds.

85 The Prudence Consulting Occupational Therapy and Home Living Skills Report of March 2007 was in response to a request from Keddies for:-

4.1 Your opinion as to the number of hours that our client requires, and will continue to require, with domestic care and assistance. This should be assessed on an hours per week basis.
4.2 Our client’s past and likely future needs for assistance with personal care, domestic duties, home maintenance, repairs, lawn mowing, gardening and the like. This should be assessed on an hour’s per week basis.
4.3 The reasonableness of the assistance that our client has been receiving in relation to domestic care and assistance.
4.4 Kindly quantify your assessment in relation to past and future home care.
4.5 Your opinion as to the equipment and/or modifications which our client may require as a result of his serious injuries.
4.6 The cost of all equipment and/or modifications which may be required.
4.7 Your opinion as to the reasonableness of the equipment and/or modifications that are required.
4.8 Any other matters that you may consider relevant.

86 The report consisted of 21 pages and included information under headings such as:-

History of injury

Psycho-social status
Pain status
Activities of daily living
Features required in accommodation
Past assistance provided
Present future care assistance requirements
Rehabilitation
Child care

87 Under “Activities of Daily Living” the report recorded how the Plaintiff said, by words or demonstration, he did things such as sitting, walking, negotiating stairs and balancing and the extent to which he used a walking stick. The observation was made that the combination of pain and depression limited his ability to stand, move and perform tasks.

88 Also recorded were statements by the Plaintiff and his wife on the various topics listed above including the assistance he had received from her, and the tasks she had taken over from him and the time this took. Recorded also were statement by him such as that pain made it difficult to push and pull a lawn mower and others had been employed to carry out this task.

89 Under the heading “Features Required in Accommodation” the report recommended the installation of grab rails and a shower rail as a means of dealing with a perceived lack of balance on the part of the Plaintiff. The author opined that the physical characteristics of the bathroom were inadequate in that connection.

90 Section by section the report made recommendations many of which simply reflected the statement of the Plaintiff and his wife. Two examples of such recommendations are, “Provision of a utility chair and leg rest” and “Reimbursement of past gratuitous personal care assistance for 1 hour daily for 6 months from 28.1.2003 until 18.8.2003”. Based on the sort of information I have indicated, estimates were made as to what would be required in the future.

91 Reference was made to operative treatment that the Plaintiff would or might need in the future and recommendations were made as to the need for consequent transport, psychological therapy, physiotherapy, Occupational therapy, vocational therapy. The Report listed medical reports and other documents that had been provided to the author. There were some 28 reports from doctors, 3 sets of documents described as “documents produced under subpoena” by Doctors Mahony, Lunz and Metry, and clinical notes from the Prince of Wales Hospital and the Bankstown Hospital. If, as I suspect, these were copies of the notes from the same 2 organisations as were included in the documents tendered, the number of pages in these notes exceeded 100.

92 Finally, after a dozen or so pages devoted to the above matters, the recommendations were then costed out on an item-by-item or hourly basis. The total so arrived at was $289,715.94.

93 Insofar as this Occupational Therapy and Home Living Skills Report includes rates or amounts that can be used in the determination of the Plaintiff’s damages and contained opinions on matters within the author’s expertise such as inadequate facilities available to the Plaintiff the report is useful. However, as a hearsay account of information from the Plaintiff and his wife the report is no better than a statement of particulars or proof of the evidence the Plaintiff and his wife were not unlikely to give. And this latter aspect formed by far the larger part of the report.

94 Furthermore, part of the function of a plaintiff’s legal advisers is to identify and particularise their client’s injuries and disabilities. Doing so involves attention to a plaintiff’s account of such matters and to the various medical reports and other information available. And while there may be occasions when the provision of some such records to occupational therapists and the like is justified, as a general proposition it is a waste of resources for copies of large numbers of such documents to be provided to however many such persons may be engaged for them to peruse and again carry out the tasks that the legal advisers have done.

95 It is clear that this large or wholesale copying of medical reports, their provision to, and consideration by, the authors of both of the reports to which I have referred has occurred in this case. No doubt the costs involved in this waste will have been the subject of charge.

96 One must of course recognise that to some degree a solicitor must leave to any Occupational Therapist or the like engaged a decision as to how to carry out his or her task. On the other hand, a solicitor seeking a report, particularly if the solicitor comes from a firm with a large practice in the field is able to dictate what is sought and to provide assumptions upon which a therapist is asked to proceed, such as that the Plaintiff could not engage in heavy physical work, mow the lawn, make his bed, walk without a stick or needed his wife for half an hour a day to dress him. Nor am I suggesting that there may not be occasion for such a therapist to visit a plaintiff’s home. But the extent of hearsay material and conclusions based thereon in the report of Prudence Consulting is grossly excessive.

97 The various criticisms I have made mean that the whole of the costs incurred in the matters to which I have referred should not be laid at the door of the Defendants. Of course it may be that some would be disallowed in the Assessment process but I do not have sufficient confidence in that regard both in terms of items and amount to lead me to the view that I should simply make the usual unqualified order for costs. Furthermore, I have no doubt that a consequence of the actions on the Plaintiff’s side of the record that I have criticised will have been the incurring of additional costs on the Defendants’ behalf and so far as that has occurred, the Plaintiff should bear those costs.

98 Conscious also from the work I have felt obliged to undertake in the preparation of these reasons, I also regard it as undesirable to make an order that involves detailed assessments of what was reasonable topic-by-topic or item-by-item or how much time was reasonably spent or wasted on particular matters. The matter is further complicated by the fact that some of the costs were incidents of the Plaintiff’s Workers’ compensation claim. Precision is impossible and, confident that the Plaintiff should not receive an unqualified order for costs, it seems to me that the best course is to order that he be paid a portion of his costs, that portion reflecting an impression as to what was reasonable and unreasonable, and a reduction on account of those of the Defendants’ costs that the Plaintiff should bear because of the excesses on the Plaintiff’s side. In that latter connection it is to be borne in mind that there are 2 defendants.

99 In the result I propose to order that the First Defendant pay 80% of the Plaintiff’s costs. That the order is made against only the First Defendant reflects an agreement arrived at previously between the parties.

100 I should make it clear that, although my remarks have included criticisms, express or implied, of the Plaintiff’s solicitors’ conduct in the preparation of his case, those remarks have been in the context of what order should be made in favour of the Plaintiff against the Defendants. I have not sought to address any issue of costs as between the Plaintiff and his solicitors, an issue that raises at least some different considerations and to some degree standards. However, it is apparent that questions arise whether some order should be made under s99 of the Uniform Civil Procedure Act.

101 Having raised that possibility, I propose to stand over that topic for a short time in order to give the Plaintiff and his solicitors time to consider what I have said and to decide what course they may wish to pursue in that regard.

SHEDULE OF MEDICAL REPORTS

Date	Doctor	Specialty	Neck	Back	Right Ankle	Stom- ach	Addressee	Cost	Summary and Remarks
30.01.03	Pereira	Radiology	Dr Solomon	Right Ankle – Accident was 28/1/03
28.02.03	Lunz	Foot & ankle	GIO
10.03.03	Lunz	Foot & ankle	WIMS Injury Management
27.03.03	Lunz	Foot & ankle	Dr Al Sayed
27.03.03	Al Sayed	GP	Dr Younan	Referral
27.03.03	Rooijen	Radiology	Y	Dr Lunz	Right ankle
04.04.03	Saunders	Physiotherapy	Dr Lunz
24.04.03	Lunz	Foot & ankle	Dr Al Sayed
24.04.03	Rooijen	Radiology	Y	Dr Lunz	Right ankle
12.05.03	Mackie	Radiology	Y	Dr Mahony	Lumbar spine – 2 disc bulges
13.05.03	Mahony	Orthopaedic	Dr Al Sayed
28.05.03	Hunter	Radiology	Y	Dr Al Sayed	Right tibia/fibula
12.06.03	Lunz	Foot & ankle	Dr Al Sayed
12.06.03	Rooijen	Radiology	Y	Dr Lunz	Right ankle
18.06.03	Lunz	Foot & ankle	GIO
18.06.03	Haindl	Radiology	Y	Dr Lunz	Bone Scan
25.06.03	Mahony	Orthopaedic	Dr Al Sayed	Original report to Dr Al Sayed included radiological scans and reports
26.06.03	Lunz	Foot & ankle	Dr Al Sayed
30.06.03	Mahony	Orthopaedic	Dr Al Sayed
30.06.03	Haindl	Radiology	Dr Lunz	Bone Scan
07.07.03	Lunz	Foot & ankle	Dr Al Sayed
04.08.03	Lunz	Foot & ankle	Dr Al Sayed
01.09.03	Korber	Radiology	Dr Miniter	Right ankle
15.09.03	Carrick	Endoscopy	Dr Al Sayed
17.09.03	Singh	Pathology	Dr Al Sayed	Gastric, oesophageal etc biopsy
23.09.03	Mahony	Orthopaedic	NC	Y	Y	Keddies	$605	Too early to assess permanent disability. Report includes radiological and blood scans/reports of ankle and lumbar-sacral spine including Dr Mackie 12.05.03, Dr Haindl 18.06.03. Apart from later events, e.g. scans, report largely repeats 13/5/03 report to Dr Al Sayed
15.10.03	Lunz	Foot & ankle	Dr Al Sayed
15.10.03	Pereira	Radiology	Dr Lunz	Right ankle
21.11.03	Ellis	Medico/legal/ surgeon	NC	Y	Y	Y	Keddies	WCI	Lengthy report; too early to assess impairment. Report annexes reports of Dr Korber 01.09.03, Dr Haindl 18.06.03, Dr Hunter 28.05.03, Dr Mackie 12.05.03, Dr Lunz 12.06.03.
29.01.04	Lunz	Foot & ankle	Dr Al Sayed
29.01.04	Rooijen	Radiology	Y	Dr Lunz	Right ankle
31.01.04	Younan	Psychiatry	Dr Al Sayed
11.02.04	Hunter	Radiology	Y	Dr Al Sayed	Lumbo-sacral spine – one disc space narrowing
12.02.04	Chew (Hunter)	Radiology	Dr Al Sayed	CT Lumbar-spine shows 2 discs bulging with impingement of one
26.02.04	Lunz	Foot & ankle	Dr Al Sayed
03.03.04	Lunz	Foot & ankle	Dr Al Sayed
16.03.04	Mahony	Orthopaedic	NC	Y	Y	Dr Al Sayed
22.03.04	Younan	Psychiatry	Dr Al Sayed
24.03.04	Wilson/ Angelides	Radiology	Dr Mahony	MRI Lumbar-spine showing 2 disc protrusions and one annular tear
19.04.04	Lunz	Foot & ankle	Dr Al Sayed
21.04.04	Lunz	Foot & ankle	IRS-total injury management
22.04.04	Mahony	Orthopaedic	Dr Al Sayed	Original included 24.3.04 MRI of lumbo-sacral spine
07.05.04	Tornya	Gastroscopy	Dr Al Sayed
23.05.04	Al Sayed	GP	Y	Y	Y	To whom it may concern	$770 WCI	Report includes much apparent photocopying from other reports. (This may not have been received by Keddies until September 2004)
24.05.04	Younan	Psychiatry	Keddies	$715 WCI
24.05.04	Younan	Psychiatry	Keddies	2 line impairment assessment
24.05.04	Metry	Psychology	Keddies	$660
07.06.04	Lunz	Foot & ankle	Y	Y	Keddies	$880	Detailed report including some past and future needs and costs; assesses ankle impairment 15%; lower limb impairment 36%.
12.07.04	Lunz	Foot & ankle	Y	Dr Al Sayed
22.07.04	Mahony	Y	Y	Dr Al Sayed	Original, but not Exhibit, included 11 prior radiological etc reports
02.08.04	Angelides	Radiology	Y	Dr Mahony	Right ankle – fracture and possibility of infection
13.08.04	Mackie	Radiology	Y	Dr Mahony	Right ankle and lower leg
20.08.04	Mahony	Orthopaedic	Y	Y	Dr Al Sayed	Original but not Exhibit included bone scan report of 2/8/04
20.08.04	Mahony	Orthopaedic	GIO
22.10.04	Ellis	Medico/legal/ Surgeon	NC	Y	Y	Y	Keddies	WCI	Detailed report; much repetition; Plaintiff worse; Assessment of back impairment 13%, Right leg 12%, Gastro-intestinal etc 20%
05.11.04	Lunz	Foot & ankle	Y	Keddies	$330	Reply to letter querying history and assessment
12.11.04	Mahony	Orthopaedic	NC	Y	Y	Keddies	$220	Original and Exhibit included copies of 12 or more prior radiological etc reports including Dr Mackie 13.08.04 & 12.05.03, Dr Angelides 02.08.04, Dr Hunter 11.02.04, Dr Pereira (undated) Dr Van Rooijen (4), Dr Korber 01.09.03, and Dr Haindl 18.06.03 & 30.06.03
12.11.04	Mahony	Orthopaedic	Keddies	Estimate of future costs of ankle surgery
12.11.04	Mahony	Orthopaedic	Keddies	Reply to 12.10.04 letter re Plaintiff’s earning, activity and personal capacity
12.11.04	Mahony	Orthopaedic	Y	Y	Keddies	Assessment of disability for whole person (29%) including ankle, back and incidental components
23.11.04	Kahil	Orthopaedic	Y	Keddies	$100	This seems to be a copy of notes rather than a report and is confined to the topic of the Plaintiff’s ankle
01.12.04	Lunz	Foot & ankle	Y	Keddies	Supplementary and impairment assessment – whole person 15% based on ankle injury
10.01.05	Smith/ Sutton	Occupational physio/ psychologist	Keddies	$1980	31 pages including detailed description of Plaintiff’s complaints, capacities and job markets etc
7.02.05	Stephenson	Orthopaedic	GIO
27.02.05	Kahil	Orthopaedic	Y	Y	Y	Keddies	$550 WCI	Detailed report re ankle and back. Reference to peptic ulcers, depression and sexual problems; Assessment of permanent impairment Gastro-intestinal – 15% Lumbar spine – 10% Ankle problem – 12% Ankle fracture – 8% Sexual impairment – 18% Combined – 49%
03.03.05	Alrubaie	Gastro-enterologist/ endoscopist	Y	Dr Saeed	Keddies sent a copy of this to Dr Ellis pre 12.08.05
11.03.05	Mahony	Othopaedic	Y	Y	Keddies	$110	Assessment of whole person impairment (excluding depression and gastro-intestinal ulceration) at 25%
18.03.05	Hope	Orthopaedic	GIO
22.03.05	Talley	Gastro- enterology/ physician	GIO
27.04.05	Rea	Plastic & Re-constructive surgeon	Y	Y	Keddies	$770 WCI	Reasonably detailed; Includes advice re ankle surgery, work and personal capacities. Scaring noted but no suggestion of problems. Assessment of permanent impairment - Ankle injury – 16%; Scarring – 5%; Total – 20%
06.05.05	Lunz	Foot & ankle	Keddies	$330	Supplementary
16.06.05	Bankstown Hospital	Gastro-enterology investigation	Keddies	Hospital notes
21.06.05	Korber	Radiology	Keddies	$880	Review of prior radiological reports and significance
12.08.05	Ellis	Medico/legal/ Surgeon	Y	Y	Y	Keddies	WCI	References to ankle and back are brief; Assessment of whole person impairment at 38%
24/8/05	Wilding	Work Comp Assessment	Y	Y	Ankle – 14% permanent impairment Spine – 0% permanent impairment (0% does not indicate no injury or symptoms)
22/9/05	Duggan	Work Comp Assessment	Y	Gastric etc – 30% permanent impairment
23.09.05	Kahil	Orthopaedic	Keddies	$550 WCI	Response to questions re future work and domestic capacities and treatment costs
10.10.05	Al Sayed	GP	Y	Y	Y	To whom it may concern	$770	Includes much photocopying of prior reports
21.12.05	Ellis	Medico/legal/ Surgeon	Y	Keddies	Short response to questions
16.01.06	Kahil	Orthopaedic	Y	Y	Keddies	Reply to request – refers to Plaintiff’s work and domestic capacity and includes future medical costs
13.06.06	Ellis	Medico/legal/ Surgeon	Y	Y	Keddies	$88	Response to Dr Silver’s report
21.07.06	Gillies	Gastro-enterology/ physician	Henry Davis York
27.11.06	Kahil	Y	Keddies	Reply to request – includes future costs
05.03.07	Prudence Consulting	Occupational Therapy – home & living skills	Keddies	$2832	21 page report on extent and cost of home care needed – report included details of depression and pain symptoms, medication and made reference to 21 medical etc reports provided
02.07.07	Al Sayed	GP	Dr McKechnie	Referral for pain management

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