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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1063
Decision Date: 13 August 2020

CaseChat Overview and Summary

Atkinson v Coles Supermarkets Pty Ltd involved a plaintiff, Atkinson, who sought damages for injuries sustained in a slip-and-fall accident at a Coles Supermarket. The primary dispute centred on the correct methodology for drafting and providing questions to expert witnesses involved in a damages conclave, particularly in light of the Uniform Civil Procedure Rules 2005 (NSW) and relevant practice notes. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the plaintiff's proposed questions for the expert damages conclave were in compliance with the Uniform Civil Procedure Rules 2005 (NSW) and the relevant practice notes. Specifically, the court needed to determine whether the questions were aligned with the procedural requirements for joint expert reports and concurrent evidence. The plaintiff's proposed questions were contentious, with the defendant arguing they were not in line with the established legal framework.

The court examined the Uniform Civil Procedure Rules 2005 (NSW) and the accompanying practice notes, which provide guidelines on the preparation and submission of expert evidence. It found that the plaintiff's proposed questions deviated from these requirements, as they were not sufficiently aligned with the rules concerning joint expert reports and concurrent evidence. Consequently, the court rejected the plaintiff's proposed questions, affirming that adherence to the procedural guidelines was essential for maintaining the integrity of the legal process.

The court's decision underscored the importance of following established legal protocols in the preparation of expert evidence. By rejecting the plaintiff's proposed questions, the court reinforced the necessity for compliance with the Uniform Civil Procedure Rules 2005 (NSW) and the practice notes, ensuring that all parties engaged in the legal process adhere to the required standards.

Orders