Cook v Ulan Coal Mines Ltd - [2017] NSWSC 1166

Supreme Court

New South Wales

Case Name:	Cook v Ulan Coal Mines Ltd
Medium Neutral Citation:	[2017] NSWSC 1166
Hearing Date(s):	19 July 2017
Date of Orders:	19 July 2017
Decision Date:	19 July 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application for leave to rely upon an expert report served late refused
Catchwords:	EVIDENCE – experts – application for leave to rely on a report served late – where plaintiff had served the report of an engineer years earlier and defendants had served no report in reply – where defendant served report of an expert engineer just over two months before the hearing date – requirement to establish exceptional circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58
Cases Cited:	Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Harris v Bellemore [2011] NSWCA 196 Harris v Bellemore (Supreme Court (NSW), McCallum J, 28 May 2009, unrep)
Category:	Procedural and other rulings
Parties:	Heidi Thea Cook (plaintiff) Mining Management Group Pty Ltd (first defendant) Ulan Coal Mines Ltd (second defendant)
Representation:	Counsel: G Parker, R Brown (plaintiff) K Ralph (solicitor for the first defendant) M Scott (second defendant) Solicitors: Stacks Goudkamp Lawyers (plaintiff) HWL Ebsworths (first defendant) Sparke Helmore Lawyers (second defendant)
File Number(s):	2014/99558
Publication Restriction:	None

Judgment

HER HONOUR: This is an action for damages for personal injury allegedly suffered by the plaintiff while she was driving a truck during the course of her employment at the Ulan Colliery. The first defendant was the manager of the mine. The second defendant is the owner of the mine.
The plaintiff's injuries are alleged to have occurred when a tyre on the truck she was driving exploded which, in combination with an alleged defect in the road on which she was travelling, is said to have resulted in her losing control of the truck and being jolted, jarred and twisted in her seat. She complains of injury to the back and lower leg together with psychological injuries as a result of the pain suffered due to those physical injuries.
This judgment determines an application by the second defendant for leave to rely on an expert report. Leave is required because the report was served late, some time after the time within which the Court had directed that any expert liability evidence be served.
The relevant chronology may be summarised as follows. The incident allegedly resulting in the plaintiff's injuries occurred in June 2012. Proceedings were commenced in the District Court in 2014. Directions were made in that court for the plaintiff to serve liability and medical evidence by 30 October 2014, which she did. On 16 October 2014, the plaintiff served a report of Jason Wagstaffe dated 2 September 2014. The defendants had been ordered to serve liability and medical evidence by 27 November 2014. Neither defendant served any expert report in response to the report of Mr Wagstaffe.
Mr Wagstaffe's report records that he is, "a professional consulting engineer holding formal qualifications in both occupational health…

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: [2017] NSWSC 1166
Decision Date: 19 July 2017

CaseChat Overview and Summary

The dispute in Cook v Ulan Coal Mines Ltd was heard in the Supreme Court of Queensland. The plaintiff, Cook, sought damages for personal injury sustained in an industrial accident at the defendant's coal mine. The defendant, Ulan Coal Mines Ltd, disputed liability and the extent of the plaintiff's injuries. A key issue before the court was the admissibility of an expert report that the defendant had served just over two months before the hearing date. The plaintiff had previously served a report of an engineer, but the defendant had not served any report in reply until shortly before the hearing.

The court considered whether the defendant's late-served report could be admitted. The plaintiff argued that the defendant had failed to serve a report in a timely manner, and that the defendant should not be allowed to rely on the late report absent exceptional circumstances. The defendant argued that the late report was necessary to counter the plaintiff's expert evidence and that the delay was not prejudicial to the plaintiff. The court examined the circumstances of the delay and whether the defendant had demonstrated exceptional circumstances that warranted the late report's admission.

In its judgment, the court held that the defendant had not established exceptional circumstances for the late service of the expert report. The court found that the delay was significant and that the defendant had not demonstrated any special circumstances that would excuse the late service. The court noted that the plaintiff had already served their expert report years earlier and that the defendant's delay in serving their report was not justified. Consequently, the court ruled that the defendant's expert report was inadmissible. The court emphasised the importance of timely exchange of expert evidence in litigation to ensure a fair trial and to avoid unnecessary delays.

The final orders of the court excluded the defendant's late-served expert report from evidence, allowing only the plaintiff's earlier report to be considered. The court directed the parties to proceed with the trial using the admissible evidence and to address the issues of liability and damages based on the evidence that was properly before the court.

Orders