Atkinson v Coles Supermarkets Pty Ltd

[2020] NSWSC 1063

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063

Hearing dates:

26 and 29 May, and 11 June 2020

Date of orders:

11 June 2020

Decision date:

13 August 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The plaintiff’s draft letters and proposed questions for the expert damages conclaves are rejected.

See paragraph [47] for additional costs order.

Catchwords:

CIVIL PROCEDURE — court administration — case management — practice notes — expert conclaves — issue as to the drafting and provision of questions to expert damages conclaves — plaintiff’s proposed questions contrary to Uniform Civil Procedure Rules 2005 (NSW) and practice notes concerning joint expert reports and concurrent evidence — proposed questions rejected

Legislation Cited:

Civil Liability Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Category:

Procedural and other rulings

Parties:

David Arthur Atkinson (Plaintiff)
Coles Supermarkets Pty Ltd (Defendant)
Linfox Australia Pty Ltd (Cross-Defendant)

Representation:

Counsel:
P Beale / J Doyon (Plaintiff)
D Talintyre (Defendant)
N Brown (Cross-Defendant)

Solicitors:
CMC Lawyers (Plaintiff)
Lander & Rogers Lawyers (Defendant)
Meridian Lawyers (Cross-Defendant)

File Number(s):

2017/171732

Publication restriction:

Nil

Judgment

1. The plaintiff, Mr Atkinson, is a 49-year old former truck driver. He has sued the defendant, Coles Supermarkets Pty Ltd (“Coles”) by Statement of Claim filed on 8 June 2017. Mr Atkinson says that on 13 August 2015, whilst he was employed with Linfox, he was injured whilst attempting to unload a truck that had been loaded by Coles staff.

2. Mr Atkinson alleges that Coles was responsible for packing, loading and securing the loads in the truck, and that they had done so in an unsafe manner which caused the load to shift within the truck, jamming the rear roller door. He says that in the course of attempting to open the roller door he sustained serious injuries, in particular to his left shoulder. There is an issue regarding a subsequent right shoulder injury and its causal relevance to the case.

3. In the process of case-managing the proceedings in May and June 2020, an issue arose regarding the competing approaches of the parties to the drafting and provision of questions to the various expert damages conclaves.

4. Argument in relation to this issue was heard on 26 and 27 May 2020 and 11 June 2020. On 11 June 2020, having had the benefit of written and oral submissions, I indicated my view that the plaintiff’s solicitor’s proposed letters and questions were contrary to the Uniform Civil Procedure Rules 2005 (NSW), contrary to any useful approach to the medical issues in the proceedings and contrary to the relevant Practice Notes dealing with joint expert reports, expert conclaves and concurrent evidence.

5. When I indicated my conclusion on that issue, rejecting the plaintiff’s proposed questions and the form of letters proposed by the plaintiff, and allowing the questions and letters proposed by the defendant to be provided to the conclaves, and despite my analysis and reasons having been articulated during exchange with counsel on 11 June 2020, counsel for the plaintiff, Mr Beale, requested that I provide formal reasons for my decision. These are my reasons.

What are the injuries for which claim is made?

6. In his Statement of Claim filed on 8 June 2017, Mr Atkinson alleged, under the heading “Particulars of Injuries” the following:

“(a) injury to the left shoulder;

(b) shock; and

(c) general bodily and psychological trauma.”

7. In his Amended Statement of Claim filed 14 September 2017, the same injuries are recorded.

8. In his Further Amended Statement of Claim filed 13 September 2018, the Particulars of Injuries were amended to add the following:

“(d) consequential injury to the right shoulder;

(e) consequential injury to the right shoulder as a result of overuse of the right arm/shoulder and/or as a result of reasonable and necessary treatment/rehabilitation for the left shoulder injury”.

9. It is worth noting that in each iteration of its Defence, Coles did not admit the injury loss or damage alleged and denied that it was caused or contributed to the injuries alleged by anything it did or failed to do.

10. In an Amended Statement of Particulars dated 25 June 2019, additional injuries are listed as “bilateral shoulder rotator cuff injuries”, and “continuing pain and restricted range of movement to the right shoulder”.

11. In that Amended Statement of Particulars there is an extensive list of “Particulars of Continuing Disabilities” including multiple descriptions of pathology in both the right and left shoulders. The list is critical to an understanding of the relevance of the nature of the pre-existing and post-event injury and pathology. The list has been reproduced as an appendix to this judgment.

12. Those listed disabilities underpin large claims for past and future gratuitous care, past out-of-pocket expenses, future domestic assistance at commercial rates, equipment, past and future loss of earning capacity and loss of superannuation.

The issues raised in the expert reports regarding causation

13. In his report dated October 2017, Dr Maniam, an orthopaedic surgeon, described the treatment Mr Atkinson had on his left shoulder which included surgery in February 2016. Mr Atkinson gave a history that he returned to work but was complaining of persistent pain in both shoulders. Mr Atkinson was dissatisfied with the operative results on the left shoulder and did not want to have any surgery on his right shoulder. There is reference to an MRI of the left shoulder performed on 23 October 2015 which showed, amongst other things, mild acromio clavicular joint osteoarthritis. Reference is also made to an MRI of the right shoulder on 19 October 2016 which showed, amongst other things, AC joint osteoarthritis.

14. In terms of prognosis, Dr Maniam concluded that Mr Atkinson’s pain has not responded to conservative treatment and surgery, and that currently Mr Atkinson:

“…continues to experience pain the left, mainly due to the surgical operation and the right due to overuse having not been able to effectively use the left arm. The prognosis does not appear to be very bright for the future and I feel that there will be constant reoccurring pain and constant stiffness.” (Emphasis added).

15. A further report of Dr Maniam set out his findings on assessment on 13 May 2019, and provided comments responsive to two orthopaedic reports served by Coles.

16. Dr David Maxwell, orthopaedic and spinal surgeon retained by Coles reviewed Mr Atkinson on 22 November 2018. He took a history of the incident and noted Mr Atkinson’s history that when he commenced an exercise regime at the gym, he developed pain in his right shoulder and found it difficult to drive a truck. He returned to see Dr Haber and had an ultrasound of his right shoulder which showed some calcification in the subcapsular tendon which may have been associated with a small partial tear. He had follow-up MRI scans of his left shoulder which showed no re-tear of the subcapularis tendon. He had physiotherapy for the right shoulder, but the pain has persisted.

17. Dr Maxwell went through the ultrasound and MRI investigations, as well as reviewing a report from Dr Champion, Rheumatologist, dated 15 May 2018, served on behalf of Mr Atkinson. Issue was taken by Dr Maxwell in respect of the conclusion that Mr Atkinson had “a right shoulder strain secondary to overuse to compensate for the left shoulder injury”. Dr Maxwell concluded that there was some “overstatement” of ongoing disabilities and that the initial incident in which the injury to the left shoulder was said to have been sustained, “seemed relatively minor” and that there seemed to be “psychological factors at play”.

18. Dr Champion’s report, relied upon by Mr Atkinson, included an assessment in May 2018. Dr Champion stated a history of the incident provided by Mr Atkinson, described the treatment and various opinions and the MRI and CT examinations, and concluded that Mr Atkinson now has “a chronic pain disorder which impairs his sleep, restricts the function of each shoulder and is causing substantial and distressing psychosocial problems”. Dr Champion stated that he believed that Mr Atkinson is genuine and that this case has been “badly managed” by his Linfox employers and by the early GP evaluation, and also by the insurers “in creating difficulties in accepting liability, particularly of the right shoulder.”

19. In respect of the injury to the right shoulder Dr Champion says this:

“In the course of the exercise regimen, Mr Atkinson is adamant that this is how it happened and associate Prof Haber agreed, he acquired pain in his right shoulder similar to that which occurred on the left side and probably at least at times worse than the left shoulder had been. There proved to be a similar underlying pathology revealed by imaging,… I accept that the right shoulder disorder was an indirect consequence of the left shoulder injury in that it occurred in the course of rehabilitation…”. (Emphasis added).

20. Dr Reiter, a Consultant Rheumatologist, reviewed Mr Atkinson in December 2018 and Dr Buckley, a Rehabilitation Physician, reviewed Mr Atkinson in January 2018. They both addressed these issues. Dr Buckley concluded in respect of the right shoulder injury that Mr Atkinson “subsequently while at the gymnasium exercising his left shoulder injured his right shoulder in a not dissimilar manner" and now has "bilateral shoulder rotator cuff impairment”, which he described as permanent.

21. Dr Alan Home, an Occupational Physician who assessed Mr Atkinson for Coles in November 2018 offered the view that the majority of the features he elicited on examination, particularly on the right side, are consistent with age-related degenerative change in the shoulder rotator cuff and AC joint and that he anticipated that the right shoulder condition arose due to a combination of factors including driving duties in the period between June and September 2016 and the gymnasium based exercise while strengthening his left shoulder. He noted that:

“The majority of the imaging findings are those of underlying degeneration rather than acute trauma. Neither the driving duties or the gymnasium strengthening, which was quite modest, would be sufficient to cause a right shoulder condition in the absence of the underlying degenerative changes.” (Emphasis added).

UCPR and Practice Notes

22. Practice Note SC Gen 11 titled “Joint Conferences of Expert Witnesses” provides, amongst other things:

“…

Introduction

4. The objective of this Practice Note is to facilitate compliance with any directions of the Court given pursuant to Division 2 of Part 31 of the UCPR.

Objectives of joint conferences

5. The objectives of such directions for a joint conference of experts include the following:

the just, quick and cost effective disposal of the proceedings;

the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;

the consequential shortening of the trial and enhanced prospects of settlement;

apprising the Court of the issues for determination;

binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and

avoiding or reducing the need for experts to attend court to give evidence.

…

Joint report

25. Pursuant to UCPR Rule 31.25 and paragraph 4 of the Code, the report should specify matters agreed and matters not agreed and the reasons for non agreement.”

23. Schedule 7 of the UCPR provides the expert Code of Conduct. This is not a meaningless incantation. As made clear in paragraph [2] of the Schedule titled “General duties to the Court”:

“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.”

24. That professional independence is emphasised in paragraph [6] of the Schedule titled “Conferences of experts”:

“Each expert witness must—

(a)  exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the court and in relation to each report thereafter provided, and must not act on any instruction or request to withhold or avoid agreement, and

(b)  endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.”

25. The UCPR provides for conferences between experts:

31.24   Conference between expert witnesses

(1)  The court may direct expert witnesses—

(a)  to confer, either generally or in relation to specified matters, and

(b)  to endeavour to reach agreement on any matters in issue, and

(c)  to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d)  to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

(2)  The court may direct that a conference be held—

(a)  with or without the attendance of the parties affected or their legal representatives, or

(b)  with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c)  with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

(3)  An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.

(4)  Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(5)  An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.

(6)  Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.

Damages and causation issues: principles – s 5D Civil Liability Act 2002 (NSW) and Watts v Rake/Purkess v Crittenden

26. The expert evidence served in the proceedings makes it clear that there is a significant issue about causation - raising squarely the need for the Court to assess with care, all of the expert and other evidence, to make the necessary s 5D Civil Liability Act 2002 (NSW) findings. Section 5D provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

27. Mr Atkinson carries the onus of proof on this issue:

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

28. Coles on the other hand, carries an evidentiary onus to assist the Court to disentangle what injuries and disabilities arise from the incident in question rather than a pre-existing injury or condition. The reports relied upon by the defendant - Dr Maxwell and Dr Home - meet that evidentiary onus. The extent to which those ongoing disabilities would have occurred in any event, or are caused or contributed to by pre-existing conditions is the most important damages issue at trial, raising squarely the issues discussed in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

29. Given those countermanding considerations and the analyses that will be required of me as the trial judge to resolve them, clearly any joint report of the relevant experts which addresses with clarity the medical issues that underpin those considerations is not only of great assistance, but a necessary component of the evidence at trial.

30. It has long been recognised that there is value in the experts discussing those medical issues between themselves without the interference of closed, uninformed, leading or confined questions from counsel that can, on occasion, obfuscate and obscure the issues, rather than elucidate them.

31. The “real issues” sometimes emerge late in the preparation of proceedings. Another advantage of the conclave process is those late-emerging issues can be distilled clearly and neutral questions posed and answered.

32. It is of immeasurable value to the Court, and to the parties for that matter, to have the experts address these critical questions in a neutral environment with open, relevantly directed questions that allow the real issues to be the subject of discussion and a joint report prepared before the trial commences. It can aid settlement discussions. It saves time. It enhances the quality and relevance of the expert evidence focus.

33. The problem with the letters drafted by the plaintiff’s legal representatives is that they were not neutrally expressed and instead sought to hamstring the process by extracting select comments from individual expert reports, that referred largely to matters potentially favourable to the plaintiff’s case, and to by entirely leading questions “invite” the experts to “discuss each of the above issues and thereafter advise whether you agree in relation to the above issues, or whether you disagree…”.

34. Schedule 7 (the Expert Witness Code) and Supreme Court Practice Note 11 were not referred to nor proposed to be included.

35. A number of the “issues” were put in a startlingly loaded fashion, for example in the proposed letter to the orthopaedic conclave, the letter was divided into two distinct parts under the headings “Dr Maniam” and “Dr Maxwell”. When referring to the defendant’s expert’s views, negative language was deployed:

Q.26: “Dr Maxwell has trouble understanding how the plaintiff could have torn his subscapularis tendon as a result of the subject accident”

Q.28: “Dr Maxwell doubts whether the…”

Q.29: “Dr Maxwell does not consider there was any significant pathology…”

         as opposed to the way the view of Dr Maniam, the plaintiff’s expert’s, views were presented, that is, as a medical fact:

Q.3: “The plaintiff has atrophic changes in his left deltoid”

Q.5: “The plaintiff sustained a consequential injury to his right shoulder which was caused by the subject accident”

36. This employs a divisive tone with the effect that argumentative propositions are raised to be agreed with or shot down, rather than questions asked that elucidate and clarify the medical views that inform the issues for determination. Both the structure and the content dictates entrenchment of positions, not objective clarification of issues for the assistance of the Court.

37. The same unacceptable style infects the draft letters proposed for the conclaves for the rehabilitation experts, occupational therapists and rheumatologists.

38. The objections to this approach were succinctly set out in the letter of the defendant’s solicitor dated 25 May 2020:

“1. We refer to your draft proposed letters for the expert conclaves between the Plaintiff’s and Defendant's orthopaedic surgeons, occupational therapists and rheumatologists.

2. Our position is that the proposed letters for the medical expert conclaves are unacceptable, in particular, the scheme adopted of selective excerpts from the experts’ respective reports.

3. We consider this ultimately amounts to impermissibly leading the experts as to which aspects of their reports/opinions are relevant to be discussed by them.

4. We also disagree that questions should not be asked of the experts (which we say was her Honour's intention, given the precise wording of her orders made on 8 May 2020).

5. We will provide our proposed draft questions this week.”

39. The plaintiff’s solicitor’s reply was prompt, but unenlightening:

“We refer to the above matter and to your correspondence dated even date regarding draft proposed letters for the medical expert conclaves.

We disagree with your position.

We are attempting to distil the issues identified by each expert so that they can be meaningfully discussed.

We look forward to receipt of your draft questions.”

40. The defendant’s solicitor attempted to further the debate in a subsequent email later the same day:

“We respectfully disagree with the plaintiff’s disavowal of putting questions to the medical/quantum experts for the purposes of their respective conclaves. Nothing in Annexure A of Practice Note CL 1 derogates from the more specific content of Practice Note SC Gen 11, which we note has been in operation since 2005, applies to all civil proceedings before the Court and has to be provided to the experts.

We note that clause 6 of the Gen 11 PN requires the parties to agree on the questions to be answered and clause 7 requires experts to attend who have expertise pertinent to the questions to be asked. Clause 8 provides that the questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration. Clause 9 provides that the questions to be answered should be framed to resolve an issue or issues in the proceedings and, if possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.

We further disagree with the plaintiff's proposed scheme of providing the experts with excerpts from their respective reports, which may mislead the experts into failing to consider other parts of the materials briefed which they may otherwise consider are relevant to forming their answers to the questions asked. Such selective leading of the expert witnesses, however well-intentioned, has the risk of contaminating the conclave process with the views of the lawyers for the parties.”

41. All of the issues raised by the defendant’s solicitor in these communications are pertinent and correct.

42. The questions proposed by the defendant’s solicitor were appropriately framed and the preamble directing the experts is reflective of a proper approach, for example:

“Q.1: Has the plaintiff ever suffered from an orthopaedic condition in his left shoulder?

Q.2: If so, what is your diagnosis of that orthopaedic condition in his left shoulder?

Q.3: If so, was that orthopaedic condition in his left shoulder caused by his attempts to lift the roller door of his trailer and/or move roll cages within or off the trailer on 13 August 2015 (together, the events of 13 August 2015)?

Q.4: If you do not consider any orthopaedic condition in his left shoulder was directly caused by the events of 13 August 2015, was that orthopaedic condition in his left shoulder aggravated by the events of 13 August 2015?

Q.5: Did any pre-existing medical condition contribute to any orthopaedic condition diagnosed in his left shoulder after 13 August 2015?”

43. Issue was taken by counsel for the plaintiff regarding questions 6, 14, 26 and 34 in the defendant’s proposed list of questions:

“Q.6: Is there any realistic prospect that the plaintiff would still have suffered from any orthopaedic condition in his left shoulder if the events of 13 August 2015 did not occur?

…

Q.14: Is there any realistic prospect that any treatment the plaintiff has received for his left shoulder would still have been required if the events of 13 August 2015 did not occur?

…

Q.26: Is there any realistic prospect that the plaintiff would still have suffered from any orthopaedic condition in his right shoulder if overuse or the rehabilitation program did not occur?

…

Q.34: Is there any realistic prospect that any treatment the plaintiff has received for his right shoulder would still have been required if overuse or the rehabilitation program did not occur?”

44. In my view these questions are appropriate and necessary for proper evaluation of the s 5D causation / Watts v Rake issues and so I ruled that they are to remain in the list of questions.

Conclusion

45. It is surprising to me, given the well-worn rules and practice notes about what is required to be done with expert conclaves, that I have been required, in 2020 to have to set out in judgment form, the problems with the plaintiff’s entirely wrong-footed approach.

Costs

46. On 29 May 2020 I ordered that the plaintiff bear his own costs of and associated with the preparation by the plaintiff’s solicitor (and counsel associated with settling of) the plaintiff’s instructing letters for the damages conclaves.

47. The focus of writing this judgment has directed my attention to the fact that it would arguably be unfair for the plaintiff himself to have to bear the costs of this misconceived work by his solicitors (and barristers if involved) and that I should, at an appropriate time, make an order that protects Mr Atkinson from any responsibility to pay for this work on a solicitor client basis. Accordingly I make this additional order:

1. I reserve the question as to whether I should order the plaintiff’s solicitor and counsel to bear their own costs and fees associated with the preparation of the draft letters for the expert conclaves and the costs associated with agitating these issues on 26 and 29 May 2020 and 11 June 2020, such issue to be the subject of submissions and to be dealt with at the end of the hearing when dealing with the costs of the proceedings.

**********

Particulars of Continuing Disabilities (2528557, pdf) Particulars of Continuing Disabilities (2528557, pdf)

Amendments

27 August 2020 - Typographical corrections in paragraphs 13, 20 and 28.

Decision last updated: 27 August 2020