Aviga v Boral Resources (Country) Pty Ltd

Case •

[2024] NSWDDT 5

•

17 May 2024

Dust Diseases Tribunal


New South Wales

Medium Neutral Citation: Aviga v Boral Resources (Country) Pty Ltd [2024] NSWDDT 5
Hearing dates: 8 April 2024; 18 April 2024
Date of orders: 17 May 2024
Decision date: 17 May 2024
Before: Strathdee J
Decision:

(1) The Notice of Motion filed 18 April 2024 is dismissed.

(2) I reserve the question of costs for the trial judge.

(3) The matter is listed for further directions on 3 June 2024 in the Dust Diseases Tribunal general list.

Catchwords:

DUST DISEASES TIRBUNAL – Parties to the proceedings – nomination of experts allowed or disallowed – interests of justice

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Dust Diseases Tribunal Act 1989 (NSW)

Dust Diseases Tribunal Rules 2019 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Davies v State of New South Wales [2013] NSWSC 1277

Category:Procedural rulings
Parties: Sonny Esekia Aviga (Plaintiff)
Boral Resources (County) Pty Limited (Defendant)
Representation:

Counsel:
Mr D Hooke SC and Mr A Schonnell appeared for the Plaintiff
Mr D Toomey SC appeared for the Defendant

Solicitors:
Maurice Blackburn (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2023/54319

Judgment

INTRODUCTION

  1. By Statement of Claim filed 17 February 2023, Sonny Esekia Aviga (‘the plaintiff’) seeks damages, interest and costs from Boral Resources (Country) Pty Limited (‘the defendant’) and an order pursuant to section 11A of the Dust Diseases Tribunal Act 1989 (NSW) with regard to any future condition he may develop as a consequence of his exposure to silica dust whilst working in the Mugga One and Mugga Two Quarries (‘the Quarries’), quarrying and processing rock from the Quarries.

  2. The matter was listed for directions before me on 8 April 2024, at which point the defendant raised the issue of the medical evidence upon which the plaintiff wished to rely. As the matter was in the general directions list, I directed the defendant to file a Notice of Motion outlining the relief that was sought, and made orders with regard to the service of evidence in support of the Motion.

  3. The defendant filed a Notice of Motion (‘the Motion’) on 18 April 2024, the morning of the hearing this application, some five minutes before I was on the bench. It did not provide any written submissions, despite written submissions being requested.

  4. The plaintiff filed and served written submissions in anticipation of the defendant’s Motion, and helpfully agreed to accept short service of the Motion, which it received just before I came onto the bench.

  5. The Motion seeks the following order:

‘Orders pursuant to UCPR 31.20 that the plaintiff be limited in respect of those issues in the case calling for opinion evidence from a respiratory physician or like expert, to the evidence of Dr Jonathon Burdon (‘Dr Burdon’)’.

  1. The defendant read the affidavit of Stephen David Taylor-Jones (‘STJ’) dated 16 April 2024, which became exhibit 1 on the Motion. The plaintiff read the affidavit of Jonathan Walsh (‘JW’) dated 10 April 2024, which became exhibit 2 on the Motion.

BACKGROUND

  1. Relevant to this application, I note that the proceedings were previously before the Court on 26 June 2023. On that occasion, I made case management orders by consent. Those orders included directions regarding expert witnesses. The specific terms of the orders were that the parties were to serve expert evidence they intend ‘to rely on at mediation’.

  2. It is not contentious that the plaintiff complied with those case management orders, and that the defendant did not. The defendant served its defence five months late, and its expert evidence between two and three months late. By reason of the defendant’s default, a mediation that was ordered to take place by 4 December 2023 did not occur until 13 February 2024.

  3. In essence, the defendant seeks orders that the plaintiff is only permitted to rely on the earlier Respiratory Physician, Dr Burdon, who had been retained by the plaintiff and had provided two reports dated 15 June 2023 and 26 July 2023 which had been served on the defendant.

  4. Dr Burton’s reports had been provided to various experts that the plaintiff sought expert opinions from. These reports were attached to the Form 1 Statement of Particulars filed on 29 August 2023, and served on the defendant. Those expert reports are as follows:

  • Dr Joel Singer (‘Dr Singer’), psychiatrist, provided a report dated 5 June 2023, which makes no reference to Dr Burdon’s opinion;

  • Bjorn Shakespeare (‘Mr Shakespeare’), functional assessor, provided a report dated 27 July 2023, which makes passing references to Dr Burdon’s opinions;

  • Jasmine Grey (‘Ms Grey’), occupational therapist, provided a report dated 8 August 2023, which relies on the prognosis opinion given by Dr Burdon;

  • Irinah Jurkowski (‘Ms Jurkowski’), vocational assessor, provided a report dated 16 August 2023, which makes references to Dr Burdon’s opinions;

  • Kain Elsmore (‘Mr Elsmore’), forensic accountant, who provided a report dated 25 August 2023, which makes no reference to Dr Burdon’s opinions.

  1. Mr Elsmore provided a supplementary report which was served and two reports from Dr Kevin Hedges (‘Dr Hedges’), occupational hygienist, relevant to liability only.

  2. With the exception of Mr Elsmore’s supplementary report, all of the plaintiff’s expert reports relevant to quantum were served prior to 28 August 2023 in accordance with the case management orders that I had made, by consent.

  3. The solicitor for the plaintiff requested from the defendant a copy of their defence, which was not responded to, an agreement as to the appointment of a mediator, which was not responded to, and a request for a response to those earlier requests, which was not responded to.

  4. On 18 December 2023, in contravention of the case management order that I had made, the defendant forwarded to the plaintiff its defence, a report of Associate Professor David McKenzie (‘A/Prof McKenzie’) dated 25 August 2023 and a joint report from Dr Benson Sheng (‘Dr Sheng’) and Andrew Hook (‘Mr Hook’) dated 14 November 2023. The correspondence also agreed to the appointment of a mediator, but indicated that the defendant would not be in a position to mediate until February 2024 as it was waiting for a report from Dawn Piebenga (‘Ms Piebenga’), occupational therapist (see annexure ‘E’ to exhibit 2 on the Motion).

  5. Upon the defence being served, the plaintiff became aware for the first time that the following issues were in dispute:

  1. the applicability of the law of the Australian Capital Territory and a denial of the entitlement to provisional damages under that law; and

  2. contributory negligence.

  1. A/Prof McKenzies’s report raised issues that were not addressed by Dr Burdon, including the plaintiff’s co-morbidities and his Polynesian ancestry.

  2. There was a further directions hearing before me on 19 December 2023 where I made an order that the parties mediate by 13 February 2024 and I listed the matter before me for a further directions hearing on 26 February 2024. The matter was not set down for hearing.

  3. The parties participated in a mediation on 13 February 2024 and the matter did not resolve. Subsequent to the mediation, the plaintiff sought further and better particulars of the defence (see annexure ‘H’ to exhibit 2 on the Motion).

  4. On 21 February 2024, the plaintiff wrote to Professor Yates (‘Prof Yates’) to request her to assess the plaintiff and provide an expert report. Although the plaintiff says that he has no obligation to explain why Prof Yates was retained, JW has provided evidence (in exhibit 2 on the Motion) that explains this decision. JW deposes that it was informed by his perception of the quality of Dr Burdon’s reports, the fact Dr Burdon had not assessed the plaintiff in person, issues raised in the defendant’s defence (not served until 18 December 2023) and an assessment of the probability of the case proceeding to trial.

  5. In exhibit 2 on the Motion, JW explains his decision to retain Professor Yates as follows:

  1. it did not offend any direction as to the use or service of expert evidence, the previous orders having been couched in terms of reliance at mediation;

  2. it was made prior to the allocation of trial dates;

  3. it established a hitherto unidentified fact, that the plaintiff’s silicosis had progressed between 2020 and 2023; and

  4. it did not breach any statute, rule, practice or convention.

  1. The plaintiff was assessed by Prof Yates on 7 March 2024 and her report dated 26 March 2024 was received by JW on 26 March 2024 and served on the defendant on 28 March 2024.

  2. Of importance is that Prof Yates opined that the plaintiff’s radiology demonstrated a progression of silicosis between 2020 and 2023. On that basis JW requested a report from Professor Catherine Jones (‘Prof Jones’), expert radiologist, requesting a medico-legal report on the plaintiff’s radiology.

  3. Prof Jones report was received by JW on 7 April 2024 which confirmed disease progression, and was served on the defendant that day.

  4. At a further directions hearing on 8 April 2024 before me, the defendant indicated that they would be serving further expert evidence.

RELEVANT LEGISLATION

  1. The Civil Procedure Act 2005 (NSW) (‘CPA’) relevantly provides:

‘56Overriding purpose (cf SCR Part 1, rule 3)

  1. The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

  2. The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

  3. A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A)   (Repealed)

  1. Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)—

  1. any solicitor or barrister representing the party in the proceedings,

  2. any person with a relevant interest in the proceedings commenced by the party.

  1. The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

  2. For the purposes of this section, a person has a relevant interest in civil proceedings if the person—

  1. provides financial assistance or other assistance to any party to the proceedings, and

  2. exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

Note—

Examples of persons who may have a relevant interest are insurers and persons who fund litigation.

  1. (Repealed)

  1. Objects of case management

    1. For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

    1. the just determination of the proceedings,

    2. the efficient disposal of the business of the court,

    3. the efficient use of available judicial and administrative resources,

    4. the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

    1. This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

  2. Court to follow dictates of justice

    1. In deciding—

    1. whether to make any order or direction for the management of proceedings, including—

    1. any order for the amendment of a document, and

    2. any order granting an adjournment or stay of proceedings, and

    3. any other order of a procedural nature, and

    4. any direction under Division 2, and

    1. the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

    1. For the purpose of determining what are the dictates of justice in a particular case, the court—

    1. must have regard to the provisions of sections 56 and 57, and

    2. may have regard to the following matters to the extent to which it considers them relevant—

    1. the degree of difficulty or complexity to which the issues in the proceedings give rise,

    2. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

    3. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

    4. the degree to which the respective parties have fulfilled their duties under section 56 (3),

    5. the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

    6. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

    7. such other matters as the court considers relevant in the circumstances of the case.

    1. The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) relevantly provides:

    ‘31.17   Main purposes of Division (cf Queensland Uniform Civil Procedure Rules 1999, rule 423; United Kingdom Civil Procedure Rules 1998, rule 35.1)

    1. The main purposes of this Division are as follows—

    1. to ensure that the court has control over the giving of expert evidence,

    2. to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

    3. to avoid unnecessary costs associated with parties to proceedings retaining different experts,

    4. if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

    5. if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

    6. to declare the duty of an expert witness in relation to the court and the parties to proceedings.

31.18   Definitions (cf SCR Part 36, rules 13A and 13C; DCR Part 28, rule 8; LCR Part 23, rule 1D)

  1. In this Division—

  2. court-appointed expert means an expert appointed pursuant to rule 31.46.

  3. expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

  4. expert witness means an expert engaged or appointed for the purpose of—

  1. providing an expert’s report for use as evidence in proceedings or proposed proceedings, or

  2. giving opinion evidence in proceedings or proposed proceedings.

  1. expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based.

  2. hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

  3. parties’ single expert means an expert engaged pursuant to rule 31.37.

Subdivision 2Expert witnesses generally 

31.19Parties to seek directions before calling expert witnesses

  1. Any party—

  1. intending to adduce expert evidence at trial, or

  2. to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

  1. must promptly seek directions from the court in that regard.

  2. Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

  3. Unless the court otherwise orders, expert evidence may not be adduced at trial—

  1. unless directions have been sought in accordance with this rule, and

  2. if any such directions have been given by the court, otherwise than in accordance with those directions.

  1. This rule does not apply to proceedings with respect to a professional negligence claim.

31.20Court may give directions regarding expert witnesses

  1. Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.

  2. Directions under this rule may include any of the following—

  1. a direction as to the time for service of experts’ reports,

  2. a direction that expert evidence may not be adduced on a specified issue,

  3. a direction that expert evidence may not be adduced on a specified issue except by leave of the court,

  4. a direction that expert evidence may be adduced on specified issues only,

  5. a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

  6. a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,

  7. a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,

  8. a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,

  9. any other direction that may assist an expert in the exercise of the expert’s functions,

  10. a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

DISCUSSION

  1. The plaintiff does not oppose an order being made that each party be limited to reliance on the evidence of one expert witness in the speciality of respiratory physician. Further, the plaintiff accepts that his reliance on Prof Yates may extend the proceedings and increase costs, but he submits that the time lost and expense incurred will be negligible.

  2. The defendant relies on Part 6 Division 1 of the CPA and submits that as the plaintiff is still working, there was no urgency for JW to request a report from Prof Yates and wait for its receipt, noting the time that he refers to in exhibit 2 [39]-[41]. The defendant also asserts that if the plaintiff is entitled to rely on Prof Yates, this will necessitate the defendant having to seek further opinion from the experts it has retained, which will create further delay and an increase of costs.

  3. The defendant submits that the plaintiff made a forensic decision as to which expert he would qualify, and then rely on and serve on the defendant.

  4. A careful and close analysis of Prof Yates’ and Dr Burdon’s opinions reveals they reached substantially the same conclusions, save that Prof Yates identified progression of the plaintiff’s disease.

  5. The following table illustrates the comparison of the conclusions reached by Prof Yates and Dr Burdon:

Issue

Burdon

Yates

Diagnoses

Silicosis and COPD.

Silicosis and COPD. She also identified autoantibodies consistent with silica-related connective tissue disease.

Causation

Silica exposure caused the silicosis. Silica exposure and smoking made equal contributions to the COPD.

Silica exposure caused the silicosis. Silica exposure and smoking made equal contributions to the COPD.

Impairment

15%

15-20%

Prognosis

Likely slowly progressive, especially with further exposure.

Likely slowly progressive irrespective of further exposure.

Loss of life expectancy

5 to 10 years.

5 to 10 years.

  1. The following table illustrates the extent of reliance on Dr Burdon’s conclusions.

Expert

Extent of Reliance on Dr Burdon

Ms Grey, occupational therapist

Ms Grey relies on Dr Burdon's opinion that the plaintiff's life expectancy has likely been reduced by 5-10 years. On instructions from the plaintiff's solicitors, Ms Grey provides two assessments based on 5 and 10 years of lost life expectancy. She did not rely on Dr Burdon to estimate rates of disease progression.

Ms Jurkowski, vocational assessor

She quotes passages of Dr Burdon's report. She also answers a question that refers to Dr Burdon's opinion:

"We note Mr Aviga is presently employed with Boral. However, Dr Burdon has opined the following: 'Mr Aviga should cease working for Boral and seek employment elsewhere in an occupation where he will not be exposed to silica or other dusts.' In your expert opinion, and on the balance of probabilities, is Mr Aviga likely to ever be able to obtain paid work in any occupation, which he is reasonably suited by virtue of his education, training and experience? Please provide reasoning."

Her answer is largely independent of Dr Burdon's opinion. It could not be seriously suggested that her answer would be different if faced with Prof Yates' report.

Professor Jones, radiologist

N/A.

Kain Elsmore, forensic accountant

N/A.

The accountant's calculations are based on assumptions supplied by the plaintiff's solicitor. He has not had independent regard to Dr Burdon's opinions.

Dr Singer, psychiatrist

Nil.

Ms Shakespeare, functional assessor

Two passing references are made to Dr Burdon's report. There is no obvious reliance on Dr Burdon and his opinions are irrelevant to her conclusions.

  1. The issue of progression of the plaintiff’s disease is an issue upon which the parties will have to revert to their other experts in any event, and goes more to the likelihood of progression rather than prognosis in the event of progression. The plaintiff also asserts, and I agree, that because of the similarity of their conclusions, the assumptions relied upon by other expert witnesses in the formulation of their opinions remain unchanged.

  2. Reconciliation of the expert evidence is a straightforward matter. In my view, it can largely be achieved by the following questions: ‘Does Prof Yeats’ opinion cause you to change the opinions expressed in your previous report(s)? If so, how and why?’.

  3. I am of the view that Prof Yates’ opinion has not recast the plaintiff’s case, and that it is highly likely that the opinions of the other experts will remain constant. Dr Burdon’s opinion itself did not drastically alter the nature of the case when the treating physician, Dr Hurwitz, had already diagnosed both silicosis and COPD.

  4. The plaintiff’s submission is that there is minimal prejudice to the defendant, save as to the extent that it is now confronted by a new expert.

  5. I note that the defendant has served five expert reports which make minimal reference to Dr Burdon’s opinions.

  6. Importantly, the reports obtained from A/Prof McKenzie make no reference to Dr Burdon’s reports. The most recent of A/Prof McKenzie’s reports, dated after the plaintiff had served Prof Yates’ reports, makes no reference to Prof Yates’ views.

  7. It is apparent that the defendant made a forensic decision to not forward Prof Yates’ report to A/Prof McKenzie and request his views. This would have occasioned little, if any, additional expense, yet the defendant chose not to do so.

  8. In making directions regarding expert evidence, I accept that the Tribunal should have regard to rules 31.19 and 31.20 of the UCPR. UCPR rule 31.20(2) identifies the directions a court may make. These directions include a direction limiting the number of expert witnesses that may be called to give evidence on a specified issue.

  9. UCPR rule 31.17 makes reference to the reliance on expert witnesses, and rule 31.17(e) allows for the court to make orders as to the number of experts to be relied upon. In my view, it does not, however, provide the power to dictate whom those witnesses will be.

  10. The plaintiff has agreed that if he can rely on Prof Yates’ opinions, then he will not tender or rely on Dr Burton’s reports. This complies with rule 31.17(e) of the UCPR, as the plaintiff has indicated that he will only rely on one respiratory physician.

  11. This applies equally to rule 31.20 of the UCPR which refers to the number of expert witnesses, but not whom.

  12. I am not aware of any power that the Tribunal has to give a direction that would restrict a party’s choice of expert.

  13. The defendant submits that the Tribunal ought be very cautious in making the order to allow the plaintiff to rely on Prof Yates’ opinions, as if the plaintiff is allowed to do this, then a defendant may also wish to do so. The defendant also asserts that this ‘may open the floodgates’ for parties in other proceedings.

  14. In my view, each case and each application must be decided on its merits based on the facts and issues peculiar to the case. Even if I thought that the orders in the Motion should not be made because it may ‘open the floodgates’, that is a matter that should not affect my decision. Further, if I think that the interests of justice are better served by the refusal of the application in this matter, which I do, then that is the course I should adopt.

  15. In coming to my determination, I have had regard to Part 6 of the CPA. As with the UCPR, Part 6 of the CPA does not contain any power to dictate a party’s choice of witness. I must also have regard to section 56 when making any orders, including interlocutory ones. However, that is not a standalone power, and serves only to inform the powers confirmed elsewhere in the CPA and in the UCPR. I must also have regard to section 58, which requires that a court must act according to the dictates of justice, and I accept the plaintiff’s submission that this could hardly be achieved by dictating a party’s choice of witness.

  16. I am not aware of, and the parties have not been able to draw my attention to, any authority which would support the making of the orders sought. Whilst the defendant has referred my attention to the matter of Davies v State of New South Wales [2013] NSWSC 1277, I am of the view that the circumstances of those proceedings can be easily distinguished from this claim, and that it is not an authority which would influence my determination, and it has not done so.

  17. The Dust Diseases Tribunal Rules 2019 (NSW) do not empower the Tribunal to restrict a party’s choice of expert witness, nor are there any practice notes to that effect.

CONCLUSION

  1. I accept that a party is free to prepare a case of their choosing within the confines of practice and procedure. The right to assemble evidence and prove a case is central to the adversarial system of justice. To do so would traverse ordinary common law to choose the evidence which they wish to put before a court.

  2. Moreover, I do not believe that the Tribunal has the power to restrict a party’s choice of expert witness.

  3. The plaintiff’s reliance on Prof Yates over Dr Burdon is unlikely to cause any substantial cost or expense, and any prejudice to the defendant is de minimus.

  4. Given the stage of the proceedings, whereby a trial date has not yet been set and a hearing would, in any event, be several months away given the Tribunal’s commitments, there is no principled case management reason to make restrictive directions in respect of expert evidence.

  5. This is especially so in circumstances given the defendant’s disregard for case management orders to date, which occasioned delay. Further, the late service of the defence which pleads contributory negligence (based on cigarette smoking), was the first instance that the plaintiff became aware of this allegation. That has created a need for the plaintiff to qualify an addiction expert, to which the defendant may wish to respond.

  6. Unfortunately, delay and an increase in costs will inevitably occur, and even if I did have the power, which I do not believe I have, the interests of justice would require that the application be refused.

ORDERS

  1. I make the following orders:

  1. The Notice of Motion filed 18 April 2024 is dismissed.

  2. I reserve the question of costs for the trial judge.

  3. The matter is listed for further directions on 3 June 2024 in the Dust Diseases Tribunal general list.

**********

Decision last updated: 17 May 2024

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Davies v State of New South Wales [2013] NSWSC 1277