Elder v Shire of Manjimup
[2009] WADC 87
•4 JUNE 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ELDER -v- SHIRE OF MANJIMUP [2009] WADC 87
CORAM: STAVRIANOU DCJ
HEARD: 4 JUNE 2009
DELIVERED : Delivered Extemporaneously on 4 JUNE 2009 typed from tape and edited by Trial Judge
FILE NO/S: CIV 2233 of 2007
BETWEEN: SANDRA ALICE ELDER
Plaintiff
AND
SHIRE OF MANJIMUP
Defendant
Catchwords:
Practice and procedure - Costs - Adjournment of trial - Late delivery of expert evidence - Turns on own facts
Legislation:
Civil Liability Act 2002
Result:
Costs to plaintiff
Representation:
Counsel:
Plaintiff: Mr R V Lonnie
Defendant: Mr J Eller
Solicitors:
Plaintiff: Slee Anderson & Pidgeon
Defendant: John Eller
Case(s) referred to in judgment(s):
Nil
STAVRIANOU DCJ:
Introduction
In this action the plaintiff seeks to recover damages for personal injury arising out of an accident on 18 March 2005. The matter before the Court concerns the costs of and occasioned by the adjournment of the trial listed to commence on 26 March 2009. On that date the trial was adjourned on the plaintiff's application because of the late delivery of an expert's report by the defendant.
The action and adjournment of the trial
The claim made is in negligence. The defendant denies liability and relies upon a pleaded entitlement to immunity pursuant to s 5Z of the Civil Liability Act 2002.
The allegation made in the statement of claim is that as the plaintiff was walking across a playground area occupied by the defendant she fell/tripped on an open hole.
The plaintiff's pleaded allegations of negligence include that the defendant:
(a)failed to ensure that the said open hole into which the Plaintiff fell/tripped was cordoned/barricaded off or around in such a way as to prevent accident/injury of the kind that ensued;
(b)failed to ensure that before the passing of daylight on 18 March 2005 the said open hole was either filled with sand or the like and the relevant area of the playground surface levelled with its surrounds or the hole was securely covered over, for example with a heavy metal lid;
(c)failed to display hazard lights around the said open hole so as to warn persons approaching of the risk of danger;
(d)failed to have solar or electric lighting operating in the vicinity of the telephone box at the time of the evening which would have likely illuminated that area of the playground where the said open hole was located;
(e)failed to place or erect any warning signs to persons approaching in the area of the said hole as to the danger ahead.
On 27 February 2007 the plaintiff provided discovery of documents which included three coloured photographs of the accident scene.
On 10 September 2008 the plaintiff's solicitors provided to the defendant's solicitors photographs of the scene of the accident. In the affidavit of Mr Ian Watson, the plaintiff's solicitor, sworn 2 April 2009 deposed in par 14 as follows:
"The plaintiff subsequently provided myself with a copy of eight digital photographs taken during July 2008 as requested and I made some available to Mr Garry Holland."
Mr Holland is an expert who provided a report on behalf of the plaintiff.
The photographs were the subject of correspondence and communication between the solicitors for the plaintiff and the solicitors for the defendant. The defendant's position is that because the provision of the photographs by the plaintiff was delayed the defendant's expert could not provide his report.
It is necessary to trace some of the history of the action. As I have said, the claim arises out of an accident alleged to have occurred in 2005.
On 8 October 2008 orders were made by the Principal Registrar for delivery of expert evidence and the adjournment of the trial then listed for 28, 29 and 30 October 2008. The order for adjournment of the trial was made on the basis that the plaintiff wished to adduce the expert evidence of Mr Holland.
On 24 November 2008 a Registrar of the Court made the following orders:
1.The action be listed for trial on 26 and 27 March 2009.
2.The time within which the defendant do exchange its expert's report or substance report be extended to 19 December 2008.
3.The costs of the listing conference be in the cause.
On 4 March 2009 nearly three months after the date listed for delivery of expert evidence the defendant served a report of Michael Klyne dated 12 February 2009. In the report there is reference to:
(a)statements of a witness John Old dated 15 November 2005 and 15 December 2008;
(b)reports of Western Investigations dated 22 June 2005 and 25 November 2005.
On 16 March 2009 following a request by the plaintiff's solicitors of that date the solicitor for the defendant wrote to the plaintiff's solicitors enclosing:
(a)copy of Western Investigations report dated 22 June 2005;
(b)signed statement of John Old dated 15 November 2005;
(c)Western Investigations report dated 25 November 2005;
(d)Supplementary report of John Old dated 16 December 2008; and
(e)11 photographs referred to in John Old's report of 16 December 2008.
Paragraph 9 of Mr Old's statement dated 16 December 2008 is as follows:
"Photos 9, 10 and 11 do not show the site as it was on the date of the alleged accident. I've drawn on the photos in black marker the white marker posts that were on the ground on the date of the alleged accident."
Mr Old further states:
"The white marker I have drawn on photos 10 and 11 were in place prior to me starting my employment with the Shire of Manjimup."
Mr Klyne in his report refers to Mr Old's statement dated 16 December 2008 and says:
"There is a conflict between the statement made by John Old in that there were road markers erected at the culvert and the photographs (taken by the plaintiff's witness Mr Steven Cheetham) on behalf of the claimant (allegedly one week later) which show there were no posts erected at the holes adjacent to the culvert."
Conclusion
When the application to adjourn the trial came on for hearing on 26 March 2009 the basis of the application was that the plaintiff wished to further investigate what was disclosed in the report of Mr Klyne concerning the existence or otherwise of the white marker posts referred to by Mr Old. In the plaintiff's submissions the trial could not in the circumstances proceed and further investigations were required. The dates of trial were vacated and costs reserved.
Mr Eller's submission was that the trial Judge would be in the best position to assess costs thrown away. Provision of the photographs was delayed by the plaintiff and it was the delay in provision of the original photographs which resulted in the delay in provision of Mr Klyne's report.
If Mr Old's evidence as to the condition of the scene of the alleged accident is accepted by the trial Judge then the evidence could become relevant to whether the defendant had breached any duty of care which it may have owed to the plaintiff.
The trial was adjourned because of the late provision of an expert report and supporting material by the defendant. The report was provided only shortly before trial. The order for provision of expert evidence had not been complied with by the defendant. The report provided disclosed for the first time the existence of Mr Old's statement dated 16 December 2008.
The defendant's obligation was to deliver its expert evidence by 19 December 2008. The defendant could have made application if there were difficulties in compliance with the order. It was appropriate, in my view, for the plaintiff to further investigate the material disclosed in Mr Ferguson's report. This necessitated and required an adjournment of the trial. In the circumstances, the plaintiff should have the costs of the application to adjourn and the costs thrown away by virtue of the adjournment of the trial.
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