Baker v Norcross Pty Ltd (Ruling No 1)

[2010] VSC 55

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8119 of 2007

BARRY BAKER	Plaintiff
v
NORCROSS PTY LTD	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF RULING:	16 February 2010
CASE MAY BE CITED AS:	Baker v Norcross Pty Ltd (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 55

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PROCEDURE – Trial of claim for damages for personal injuries – Causation issue – Application by plaintiff for leave to elicit expert evidence not contained in report of medical practitioner served on defendant – Rules of the Supreme Court O 33.12.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Philbrick SC and Mr J Gorton	Maurice Blackburn
For the Defendant	Mr D Curtain QC and Ms M Taaffe	Wisewoulds

HIS HONOUR:

1. In this case, the trial commenced last Tuesday, 9 February.  The plaintiff has given evidence, his wife has given evidence, his general practitioner and treating physiotherapist have given evidence.  In addition, Dr Lewinsky, the rehabilitation specialist who attended to the plaintiff for a period of a couple of years from 2000, has given evidence.

1. The plaintiff now intends to call Mr Kevin Siu, the neurosurgeon who performed two operations on him in 2004 and 2005.  Mr Philbrick this morning outlined to me some evidence, which it is intended or wished to call from Mr Siu, which is additional to and indeed different to that contained in his report concerning a critical issue in the case. 

1. Mr Curtain, Queen’s Counsel for the defendant has objected to the calling of the evidence. He has submitted that that evidence has not been the subject of any report served on behalf of the plaintiff, and therefore the plaintiff is not entitled to call that evidence, unless I give leave under Rule 33.12 of the Rules of the Supreme Court. He submitted that there would be prejudice to the defendant, should I give the plaintiff leave to call such evidence.

1. In essence, Mr Siu in his report stated that he was unable to address the question whether the 1991 incident, which the plaintiff claims in this case was a cause of his problem, was related to the injury of which the plaintiff now complains.  Mr Philbrick has informed me that this morning he had the opportunity to confer with Mr Siu, and Mr Siu on consideration of the matter is prepared to say that he is of the opinion that the sequelae complained of by the plaintiff are consistent with a disc injury suffered by him as a result of the 1991 incident at work.  Mr Philbrick outlined to me a number of matters, in some detail, in relation to that which Mr Siu intends to relate.  In terms of explanation, Mr Philbrick stated that today was the first occasion on which he had conferred with Mr Siu. 

1. He did state that it has been difficult to both locate and bring Mr Siu to the court.  At the same time, there is force in Mr Curtain’s observation that Mr Siu was the treating surgeon, who operated twice on the plaintiff, and whose evidence is of great moment in the case. It is fair to express a degree of disquiet that evidence of such moment in the trial, relating to the critical issue in the case, has only been notified to the defendant at this very late stage.

1. The procedures provided by Rule 33.12 are important both to the proper disposition of trials, and also to the ability of the parties to negotiate settlement, either before a case, or at an appropriate stage during it.  Mr Curtain submits if I were to grant the plaintiff leave, the defendant would suffer prejudice.  In doing so, he has quite properly and candidly accepted that he cannot point to any prejudice of the defendant in the actual conduct of the defence of the plaintiff’s claim.

1. He is correct in making that concession.  Dr Pilbrow and Dr Lewinsky have both at this stage postulated the view that the plaintiff’s problems do arise from disc damage, particularly at the L4/5 level, arising from the 1991 incident, and that view has also been supported by the physiotherapist, Mr Guiliano.  More significantly, my attention has been drawn to the reports of Mr Bittar and Mr Brazenor, neurosurgeons, who deal with this issue, and who in particular both identify disc damage caused in the 1991 incident, and they both express different views as to the ongoing sequelae which might have followed from that incident.  Nevertheless, as Mr Philbrick correctly points out, the issue has been and will be well on the table, regardless of whether Mr Siu gives evidence as to it or not. 

1. Mr Curtain has also properly accepted that the late provision of the oral report of Mr Siu would not prejudice, or could not have prejudiced, the parties in the statutory offer scheme made by them under the Accident Compensation Act.  The structure of that scheme is such that the statutory offers were completed before the issue of proceedings in this case, and therefore, a fortiori, they were complied with before the requirements of Rule 33.12 came into effect in relation to the obligations of the parties in this proceeding.  Mr Curtain has submitted to me that the defendant has, nonetheless, been prejudiced in its out of court negotiating position in this case, because if it had known the views of Mr Siu at an earlier stage as a result of a proper service of a report containing those views under Rule 33.12, the defendant would have been in a position to treat with the plaintiff out of court, and potentially to have settled the case with him.

1. I accept that to some extent the defendant has suffered some prejudice in that regard. However, Mr Philbrick is correct in pointing out that the degree of prejudice so sustained by the defendant is at best somewhat speculative.  It is in the realm of hypothesis  as to whether the defendant would have changed its position in out of court negotiations, the extent to which it would have done so, and particularly whether it would have done so to make an offer acceptable to the plaintiff. 

1. It is important that reports be served, in order to encourage parties to treat with each other out of court, and it is possible that the defendant may have made an offer acceptable to the plaintiff.  However, that is very much a matter of speculation.  To that limited extent I am persuaded the defendant has suffered prejudice.  On the other hand, at the same time in my view the prejudice to the plaintiff, should I shut out the calling of the evidence would be very substantial.  It is important that parties be entitled to call admissible evidence in court that deal with the main issues of the case.  In a case such as this, where the defendant has quite properly not argued that the calling of that evidence would adversely affect its ability to handle the evidence, or would have adversely affected the manner in which it has already conducted the case, quite clearly the balance of prejudice would weigh heavily against the plaintiff, in terms of the conduct of the case itself, were I to shut the plaintiff out from calling evidence which is otherwise admissible and relevant in the proceeding.

1. Further, the defendant has correctly conceded that it could not have been prejudiced in its out of court offer procedures required under the Accident Compensation Act.  Whilst there has been some prejudice to the defendant arising out of its negotiating position, as I say, that prejudice is somewhat speculative, and would be significantly outweighed by the prejudice unfairly visited upon the plaintiff, should I shut out this relevant evidence.

1. Accordingly, I am prepared to give leave to the plaintiff to call evidence from Mr Siu in accordance with that outlined to me by Mr Philbrick pursuant to Rule 33.12 of the Rules of the court.