BABIC -v- SWINDALE [2007] WADC 166

Link to Appeal :

[2007] WASCA 254

[2007] WASCA 262

[2007] WASCA 262(S)

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 166
Case No:	CIV:1862/2006	Heard:	11, 12 & 13 SEPTEMBER 2007
Coram:	GROVES DCJ	Delivered:	13/09/07
Location:	PERTH
No of pages:	7	Judgment Part:	1 of 1
Result:	Leave to adduce evidence not earlier disclosed refused
PDF Version

Parties:	DINKO BABIC KENNETH GRIFFITHS SWINDALE
Catchwords:	Tort Motor vehicle accident Expert evidence Disclosure of medical evidence
Legislation:	Rules of the Supreme Court O 36A, r 2
Case References:	Boyes v Collins (2000) 23 WAR 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : BABIC -v- SWINDALE [2007] WADC 166 CORAM : GROVES DCJ HEARD : 11, 12 & 13 SEPTEMBER 2007 DELIVERED : Delivered Extemporaneously on 13 SEPTEMBER 2007 typed from tape and edited by Trial Judge FILE NO/S : CIV 1862 of 2006 BETWEEN : DINKO BABIC

Plaintiff

AND

KENNETH GRIFFITHS SWINDALE

Defendant

Catchwords:

Tort - Motor vehicle accident - Expert evidence - Disclosure of medical evidence

Legislation:

Rules of the Supreme Court O 36A, r 2

Result:

Leave to adduce evidence not earlier disclosed refused

(Page 2)

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos

Defendant : Mr J R Brooksby

Solicitors:

Plaintiff : Simon Walters

Defendant : Williams Handock

Case(s) referred to in judgment(s):

Boyes v Collins (2000) 23 WAR 123

(Page 3)

1 GROVES DCJ: The following are my extempore reasons in relation to disclosure of certain medical evidence in the possession of the defendant. The plaintiff sues the defendant for damages for personal injuries said to arise out of a motor vehicle collision on 7 June 2005. The defendant admits that the collision was caused by his negligent driving but denies that the plaintiff suffered injury or any loss or damage as a consequence of the accident. The defendant does not allege that the plaintiff was fraudulent or malingering.

2 It is thus an "action for personal injuries" as that expression is defined in O 36A, r 1 of the Rules of the Supreme Court. The plaintiff entered the action for trial on 10 November 2006. There followed a pre-trial conference on 6 February 2007. The proceedings were then referred to a listing conference on 2 April 2007. On that date the action was set down for trial for four days commencing 11 September 2007.

3 The trial commenced before me on Tuesday, 11 September 2007. After almost two and a half days the plaintiff has closed his case. The defendant's counsel has foreshadowed that evidence will be called including that from Doctors Rosenthal, Vaughan and Gope. The plaintiff's counsel thereupon raised an issue as to whether those doctors should be permitted to give medical evidence as to certain matters because the substance of that evidence was not disclosed in writing within the time prescribed by O 36A or there having been no direction given or within a reasonable…

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.

Continue reading Babic v Swindale

Details

AGLC: Babic v Swindale [2007] WADC 166
Case: [2007] WADC 166
Decision Date: 13 September 2007 typed from tape and edited by Trial Judge

CaseChat Overview and Summary

Babic v Swindale is a case involving a motor vehicle accident that occurred when the plaintiff, Babic, collided with the defendant, Swindale, who was travelling in the opposite direction. The dispute centres on whether Swindale was negligent in causing the accident, and if so, whether this negligence contributed to the extent of Babic's injuries. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether Swindale breached his duty of care by driving in a negligent manner, and if Babic's expert evidence regarding the extent of his injuries was admissible given that certain medical evidence was not previously disclosed. The court had to determine if the failure to disclose this evidence amounted to a breach of the rules of court, and if so, whether this breach warranted the exclusion of the expert evidence from being presented at trial.

The court found that Swindale did not breach his duty of care, and thus was not liable for the accident. Regarding the disclosure of medical evidence, the court held that the failure to disclose certain medical reports did not constitute a breach severe enough to exclude the expert evidence from being presented at trial. However, the court did refuse Babic leave to adduce evidence that had not been earlier disclosed, thereby limiting the scope of the evidence that could be presented in relation to Babic's injuries. The court's decision was based on the principle that while the failure to disclose was not an egregious breach, it was nonetheless a breach that warranted the exclusion of the undisclosed evidence.

No further orders were made by the court beyond the refusal of leave to adduce the undisclosed evidence.

Orders

Orders of the court

Leave to adduce evidence not earlier disclosed refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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