Bell by her tutor Angela Salmon v Rail Corporation NSW

[2016] NSWSC 839

Supreme Court

New South Wales

Medium Neutral Citation:	Bell by her tutor Angela Salmon v Rail Corporation NSW [2016] NSWSC 839
Hearing dates:	15 June 2016
Date of orders:	15 June 2016
Decision date:	15 June 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Ruling as to form of questions for experts’ conference
Catchwords:	EVIDENCE – expert evidence – where Court had ordered experts to confer in advance of hearing – contest as to questions to be posed – principles to be applied
Category:	Procedural and other rulings
Parties:	Amanda Bell (by her tutor Angela Salmon) (Plaintiff) Rail Corporation NSW (incorrectly sued as State of New South Wales)
Representation:	Counsel: R Royle (Plaintiff) R Cavanagh SC (Defendant)     Solicitors: Stacks Goudkamp (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2011/32273
Publication restriction:	None

Judgment

1. HER HONOUR: This is an action for damages for personal injury arising out of a railway accident in which the plaintiff, while seated at the edge of a railway track, was hit by a train that had just left Gymea train station. The proceedings have been relisted today on the application of both parties for a determination by the Court as to a contest concerning the appropriate form of questions proposed for the liability experts.

2. Each party has qualified an engineer to address issues relating to the defendant's liability. Pre-trial directions were made for the two engineers to confer in advance of the trial and to provide a joint report to the Court. However, that process has been delayed by the failure of the parties to agree on the questions on which they should be asked to confer.

3. That contest has been determined this morning by a combination of my indicating what I regard to be the proper approach and the parties reacting to that indication with commendable cooperation. A position has been reached where the questions are now agreed on the understanding that the defendant's position is protected in respect of objections it has flagged will be taken at the hearing.

4. The approach I indicated I would take to determining the matters raised is that, in my view, the purpose of a conclave between opposing experts in the period leading up to the trial, and the requirement that a joint report be prepared, is to determine areas of common ground between the experts, such as to narrow the areas of contest at the trial.

5. The defendant objected to some of the questions proposed by the plaintiff on the basis that the answers to those questions would not be admissible at trial. I indicated my view that, whilst the defendant's position should be protected and preserved in that respect, any such contest should not be determined in the duty list but, rather, by the trial judge. Accordingly my approach was to take a broader scope as to the permissible questions and to preserve the parties’ entitlement to argue the ultimate determination of objections, such as those flagged by the defendant, before the trial judge.

6. Separately, one of the defendant's objections related to the extent of the plaintiff's expert's expertise. That foreshadowed objection has been taken into account in a reformulation of the question, again on the understanding that it remains open to contest that issue at trial.

7. On that understanding, the parties are agreed that the proposed questions for the liability experts will be as follows:

1.    On the assumptions you make in your report, at what distance would an object have been visible:

(a)    Without lights;

(b)    With marker lights; and

(c)    With ditched lights; and/or

(d)    With heads lights.

2.    What is your expertise to answer question 1?

3.    What regulations, protocols, guidelines or standards governed the use of lights in this location at the time of the accident?

4.    Please identify, with specific reference to the parts, the information in 3 above.

5.    What are your assumptions about:

(a)    The lights in use on the train at the time of the accident;

(b)    When the driver first saw the plaintiff;

(c)    When the driver could have seen the plaintiff; and

(d)    The delay in changing any instruction, protocol, guideline, standard with regard to the lighting in respect of the report.

6.    What is the distance that the subject train would take to come to a complete stop if the train was travelling at the following speeds at the time that the driver applied all available braking mechanisms?

[And then the parties will insert the speeds].

7.    With reference to the OTSI Report:

(a)    What changes in lighting did you understand to be recommended;

(b)    What is your understanding as to whether those changes were implemented and, if so, when?

(c)    Having regard to your answer to (b), do you consider they could or should have been implemented earlier?

8.    What warnings, if any, could have been given to the plaintiff by the driver that the train was approaching?

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Decision last updated: 04 August 2016