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:

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.

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.

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.

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.

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…

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: [2010] VSC 55
Decision Date: 16 February 2010

CaseChat Overview and Summary

In the matter of Baker v Norcross Pty Ltd, the plaintiff sought damages for personal injuries sustained in a workplace accident. The defendant was the plaintiff's employer, and the claim was brought before the Supreme Court. The primary dispute centred on the issue of causation, specifically whether the plaintiff's injuries were a result of the accident in question.

The court had to determine whether the plaintiff was entitled to adduce expert evidence not disclosed in the medical report already served on the defendant. This decision hinged on the interpretation and application of Rule 33.12 of the Supreme Court Rules. The plaintiff argued that the additional expert evidence was necessary to establish causation, a critical element of the claim. The defendant opposed the application, contending that the plaintiff had failed to follow the requisite procedural requirements to adduce the new evidence.

The court considered the procedural rules and the precedents concerning the admissibility of additional expert evidence. It noted that Rule 33.12 allows for flexibility in the admission of expert evidence, provided it is necessary and not used to surprise the other party. The court found that the evidence was necessary to clarify the causation issue and that the defendant was not prejudiced by the late disclosure. Accordingly, the court granted the plaintiff's application for leave to adduce the additional expert evidence.

Orders