Brumby v Mt Arthur Coal Pty Ltd; Ready Workforce (A Division of Chandler MacLeod) Pty Ltd v Mt Arthur Coal Pty Ltd

[2024] NSWSC 1626

Supreme Court

New South Wales

Medium Neutral Citation:

Brumby v Mt Arthur Coal Pty Ltd; Ready Workforce (A Division of Chandler MacLeod) Pty Ltd v Mt Arthur Coal Pty Ltd [2024] NSWSC 1626

Hearing dates:

6 December 2024

Date of orders:

6 December 2024

Decision date:

18 December 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Refuse leave for the defendant to rely on the report provided by chiropractor, Dr Elliott, to the solicitors for the defendant on 28 October 2024.

(2) Refuse leave to the defendant to call Dr Elliott to give evidence in the proceedings.

Catchwords:

CIVIL PROCEDURE – where defendant’s solicitor sought an expert report from plaintiff’s treating chiropractor close to the trial date – where plaintiff’s treating chiropractor had been subpoenaed to give evidence – where chiropractor under mistaken impression provision of report for defendant’s solicitor “adhered to the legal obligations imposed by the subpoena” – no waiver of patient/chiropractor privilege – where no evidence was provided as to why there was not earlier investigation by subpoena – expert report not allowed to be tendered by defendant – oral evidence of chiropractor not permitted to be called by defendant

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346

White v Overland [2001] FCA 1333

Category:

Procedural rulings

Parties:

2021/00038170
Nathan John Brumby (Plaintiff)
Mt Arthur Coal Pty Ltd (Defendant)

2020/00149934 (Workers Compensation recovery proceedings)
Ready Workforce (A Division of Chandler MacLeod) Pty Ltd (Plaintiff)
Mt Arthur Coal Pty Ltd (Defendant)

Representation:

2021/00038170

Counsel:
B Dooley SC with P O’Rourke (Plaintiff)
P.M. Morris SC with A Schonell (Defendant)

Solicitors:
Whitelaw McDonald Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

2020/00149934 (Workers Compensation recovery proceedings)

Counsel:
D Ronzani (Plaintiff)
P.M. Morris SC with A Schonell (Defendant)

Solicitors:
Hall & Wilcox (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2021/00038170; 2020/00149934

Publication restriction:

Nil

JUDGMENT

1. Nathan John Brumby has sued Mt Arthur Coal (“Mt Arthur”) alleging that an employee of Mt Arthur negligently injured him in an accident on 2 May 2018 at its open cut mine outside Muswellbrook, New South Wales. He has claimed he suffered a serious back injury that has prevented him from working at all since late 2018.

2. A significant issue in the case is whether that is true, and the extent to which the well-documented pre-existing degenerative changes in his back, as well as the prior and subsequent back injuries and aggravations caused by accidents, (particularly on his motorbike), were the - or a - cause of Mr Brumby’s claimed need for surgery, inability to work, and ongoing pain and disability.

3. An issue has arisen as to whether Mt Arthur should be allowed to rely on a report obtained by its solicitors from a treating chiropractor in October 2024, and whether Mt Arthur should be allowed to call that chiropractor to give oral evidence.

4. Mr Brumby, via his counsel Mr Dooley SC, objects to that course being taken because the report should not have been obtained from Dr Elliott in the way that it was - i.e., without any consent by or notice to Mr Brumby - it was served too late and was not prepared and served in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the Civil Procedure Act 2005 (NSW), the Expert Witness Code of Conduct and the case management orders made by the Court. Second, no expert should be permitted to give oral evidence that has not been the subject of a report that has been prepared and served in accordance with the Court’s orders and rules.

5. Mt Arthur, via its counsel Mr Morris SC, submitted that material evidence about the true position of Mr Brumby’s pre-accident injuries, back pain and treatment should be before the Court, and that includes Dr Elliott’s potential oral and report evidence, because he was treating Mr Brumby from 2008 up to two weeks before the accident the subject of these proceedings. He argued that the records Dr Elliott produced on subpoena in September 2024 indicate that there had been over that period many treatments to Mr Brumby’s lower back. Mr Morris submitted that the fact that the records produced by Dr Elliott are in a kind of abbreviated code rather than a narrative means that it is not fair to Mt Arthur to not have the clarity to explore with Mr Brumby what parts of his body were treated by Dr Elliot and why, and so the Court is being denied relevant, helpful material that bears on the issues it has to determine.

6. On 6 December 2024, I made orders upholding Mr Brumby’s objections to the report of 28 October 2024 and the calling of Dr Elliott by Mt Arthur for the reasons that follow.

Procedural chronology

7. In a statement of claim filed on 10 February 2021 in the District Court at Gosford, Mr Brumby alleged that on 2 May 2018, whilst in the process of waiting for his dump truck to be filled by an excavator shovel being operated by an employee of Mt Arthur, the rear of his truck was struck violently either by a very large rock or the excavator shovel, causing injury to Mr Brumby. The injuries were particularised in the statement of claim as including soft tissue injury to the back, including injury to L4/5 and L5/S1 levels, and a disc protrusion.

8. In a statement of particulars filed on the same date, Mr Brumby alleged that he has continuing pain, weakness and restriction in his back and right leg, has difficulty sitting for long periods of time without pain, difficulty standing for long periods without pain, difficulty carrying out bending and twisting activities without pain, difficulty carrying out heavy lifting without pain and diminished sensation of the right leg, as well as anxiety, depression and irritability.

9. Mr Brumby claimed that he has a need for continuing out-of-pocket expenses for his general practitioner, physiotherapy, hydrotherapy and pain killers, as well as occupational rehabilitation support. He claimed that he has required domestic assistance at an average rate of 12 hours per week for 12 months and after that, 8 hours per week to date. He has also claimed a need for 4 hours per week of paid domestic assistance for the future to be provided at a commercial rate.

10. Mr Brumby also alleged that he has been unable to work since October 2018 and has an ongoing loss of wages at the rate of over $1,500.00 net per week. He also claimed loss of past and future superannuation, plus leave loading entitlements and income tax instalments deducted in respect of workers compensation payments made to him.

11. Mt Arthur filed a defence in 2021 denying liability, denying responsibility for any injuries and denying that causation, as required by s 5D of the Civil Liability Act 2002 (NSW), was satisfied. There is also an allegation of contributory negligence particularised in the defence as “failing to keep a proper lookout”, “failing to take reasonable care” and “placing himself in a position of peril”.

12. The proceedings were transferred to this Court in 2023 and various case management orders have been made in this Court, including the date by which all of the defendant’s medical and expert reports must be served. That date expired many months ago.

13. In November 2023, pursuant to Court orders, the plaintiff filed and served a lengthy and detailed evidentiary statement in which there were a number of references to the fact that he had received treatment from a chiropractor, Dr Elliott, for back pain and other problems since September 2008.

14. On 18 September 2024, 10 months later, the solicitor for Mt Arthur issued a subpoena to produce documents to Dr Elliott. On 19 September 2024, three pages of treatment records were produced. On 26 September 2024, the parties were given access to those documents.

15. On 24 October 2024, a subpoena to give evidence was filed and shortly after served upon Dr Elliott. The subpoena stated that Dr Elliott was required to attend Court from 2 to 13 December 2024 unless excused. It included the usual provisions that failure to attend would be considered to be contempt of court and a person who does not comply with the subpoena can be arrested.

16. The covering letter provided with the subpoena by HWL Ebsworth did little to explain that the requirement for Dr Elliott to be at Court would be limited to a certain date and time within the date span of 2 to 13 December 2024. On the contrary, the letter stated that Dr Elliott must attend on the first day, and gave no assurances as to the limited engagement and time that would be required for him to assist the Court if he was called. That subpoena and the letter attached were not copied to the solicitors for Mr Brumby.

17. On 28 October 2024, there was a telephone conversation between Mr Hay, the partner at HWL Ebsworth with conduct of the matter on behalf of Mt Arthur, and Dr Elliott. A letter of 28 October 2024 by Mr Hay to Dr Elliott stated as follows:

“As discussed, we would be grateful if you could provide a report providing further details of your treatment of Mr Brumby…”

and requested that he include in the report:

“The history he gave you, the symptoms he complained of and of those symptoms, your diagnosis and the treatment you provided, and how his condition progressed”.

18. There is no suggestion that Mr Brumby was asked whether he consented to this course, and there was no communication to Mr Brumby’s solicitors advising that this further report had been sought.

19. Later that day, Dr Elliott provided a report addressing those things in broad terms. There was no reference to the Expert Witness Code of Conduct as is required for any expert report.

20. A letter dated 12 November 2024 by Dr Elliott to Mr Brumby’s solicitors indicates that Dr Elliott was under a misapprehension as to the legal requirements imposed on him by virtue of the subpoena, stating that he:

“… thought he had acted in compliance with the subpoena and the subsequent request from Mr Hay providing the required report as outlined by legal directives. To the best of our knowledge this process adhered to the legal obligations imposed by the subpoena”.

21. During argument I invited counsel for Mt Arthur to provide any file note of the conversation Mr Hay had with Dr Elliott on 28 October 2024, but none was forthcoming. There was no affidavit from Mr Hay explaining the context or content of his interactions with Dr Elliott.

22. I must therefore proceed on the basis of the material that was tendered on the application. That includes the letter of Dr Elliott to Whitelaw McDonald, Mr Brumby’s solicitors, which demonstrates a deep misunderstanding as to what he was permitted or required to do under “compulsion of law”. To the extent that there could be any assertion of a waiver of Mr Brumby’s chiropractor/patient privilege, the provision of the report by Dr Elliott was under a mistaken understanding of what was required of him by the subpoena and was wholly without Mr Brumby’s knowledge or consent. There was, in the circumstances, no waiver.

23. On 6 November 2024, the orthopaedic surgeons met to discuss various questions posed by the parties. It is evident from the joint report that the participants had Dr Elliott’s report and treatment records, but the only role this material seems to have played is that it was it acknowledged as part of the history. No questions were directed to the orthopaedic surgeons that required them to evaluate the report.

24. On 14 November 2024, the joint orthopaedic report was provided to the parties. On 26 November 2024, the plaintiff’s solicitor formalised a schedule of objections for the Court, which included a wholescale objection to Dr Elliott’s report being deployed in the trial. Although I was informed that there had been discussions between the parties around the time of the questions being prepared for the orthopaedic conclave, (i.e., prior to 6 November 2024), no evidence about those discussions was tendered on this application.

Mr Brumby’s submissions as to why the report should not be allowed into evidence and Dr Elliott should not be allowed to be called to give evidence

25. Mr Dooley submitted that the report was served in breach of UCPR rr 31.23 and 31.28(3)(c).

26. Rule 31.23 provides:

31.23   Code of conduct

(1)  An expert witness must comply with the code of conduct set out in Schedule 7.

(2)  As soon as practicable after an expert witness is engaged or appointed—

(a)  in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or

(b)  in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,

must provide the expert witness with a copy of the code of conduct.

(3)  Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.

(4)  Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

27. Rule 31.28 provides relevantly for disclosure of experts’ reports:

31.28   Disclosure of experts’ reports and hospital reports

(1)  Each party must serve experts’ reports and hospital reports on each other active party—

(a)  in accordance with any order of the court, or

(b)  if no such order is in force, in accordance with any relevant practice note, or

(c)  if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2)  An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3)  Except by leave of the court, or by consent of the parties—

(a)  an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c)  the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4)  Leave is not to be given as referred to in subrule (3) unless the court is satisfied—

(a)  that there are exceptional circumstances that warrant the granting of leave, or

(b)  that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

28. Mr Dooley submitted, correctly, that there are no exceptional circumstances that warrant leave being given. Litigation by ambush has long been held to be unacceptable: see White v Overland [2001] FCA 1333 at [4]; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [21]-[32]; and Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 at [160]-[164].

29. Mr Dooley submitted that if leave is granted, there is a significant risk that the trial will be made more complicated, the orthopaedic expert conclave may have to be redone and there would need to be an adjournment to deal with the issues. The existence of Dr Elliott’s involvement was set out clearly in Mr Brumby’s statement served 12 months ago and the delay in dealing with that material on the part of Mt Arthur’s solicitors remains unexplained.

Submissions of Mt Arthur as to why Dr Elliott’s report and oral evidence should be received

30. Mr Morris’ primary submission was that what is contained in Dr Elliott’s report of 28 October 2024, and the evidence that he plans to lead from Dr Elliott, is factual evidence, not expert evidence.

31. Mr Morris argued that because the report is confined to a statement of observations, a recount of things Mr Brumby told Dr Elliot and the treatment Dr Elliot in fact carried out, it is not an expert report or expert evidence at all.

32. Secondly, Mr Morris submitted that the Court should receive all relevant evidence that informs the issues, regardless of when it was provided, because the additional report and oral evidence to be led will be limited to only “explaining” the 3 pages of subpoenaed records which are elliptical because of the shorthand adopted in the notes by Dr Elliott.

33. Mr Morris also argued, rather faintly, that Mr Brumby did not disclose Dr Elliott as a “treating doctor or hospital” in answers to the request for further and better particulars sent and replied to in 2023, and that Mr Brumby could have been more forthcoming in his 2023 statement in his description of how often he consulted Dr Elliott and for what specific problems.

Decision

34. I find Mr Morris’s submissions unpersuasive.

35. First, it is patently wrong to characterise Dr Elliott’s history-taking, assessment, and treatment administered to Mr Brumby as “factual evidence”. Clearly it is expert evidence. The context in which Mr Brumby consulted Dr Elliott was as patient and chiropractor. Whilst he refers to himself as “Dr” Elliott, there is no evidence that he was or is a medical practitioner, and so there was no obligation upon Mr Brumby to identify his treating chiropractor in the October 2021 answers to the request for particulars regarding “any hospital or doctor’s clinic at which he was treated during the 5 years prior to 2 May 2018 and to date”. In any event, Dr Elliott’s treatment role was described in the detailed November 2023 statement of Mr Brumby.

36. Second, it is not correct to submit that the Court should receive all relevant evidence, regardless of when it is exchanged and in what circumstances. Case management orders made under the UCPR and the Civil Procedure Act require orderly preparation and service of the evidence sought to be led. Particular rules apply to the preparation and service of expert medical evidence for obvious reasons.

37. This is so that the other party can make forensic decisions as to what evidence to call or not to call, and so the proceedings can be justly and efficiently determined in a cost-effective and timely way: ss 56 and 57 of the Civil Procedure Act.

38. Section 57 of the Civil Procedure Act requires me to consider the dictates of justice, including, amongst other things, the degree to which any party made use of any available opportunity and the degree of expedition with which it has approached the proceedings.

39. The delay of 10 months between the service of Mr Brumby’s detailed evidentiary statement and the issue of the subpoena to produce to Dr Elliott could have been explained by affidavit, but was not.

40. The interface between the defendant’s solicitor, Mr Hay, and Dr Elliott on 28 October 2023 could have been explained in an affidavit of that solicitor, but was not.

41. Third, significant court time and costs would be wasted if leave was now granted to Mt Arthur to pursue the course it has belatedly decided to take. Forensic decisions have been made by Mr Brumby’s legal team based on what was served in accordance with the Court’s orders. Mr Brumby has given evidence and been cross-examined over three days. He should not now be ambushed by expert evidence that is not contained in an appropriately prepared, rule-compliant expert report.

Orders

42. The orders made on 6 December 2024 were accordingly:

1. Refuse leave for the defendant to rely on the report provided by chiropractor, Dr Elliott, to the solicitors for the defendant on 28 October 2024.

2. Refuse leave to the defendant to call Dr Elliott to give evidence in the proceedings.

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Decision last updated: 19 December 2024