Glover v Fuller - [2022] ACTSC 144

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Glover v Fuller
Citation:	[2022] ACTSC 144
Hearing Date:	3 June 2022
DecisionDate:	22 June 2022
Before:	McWilliam AsJ
Decision:	(1) Leave is granted to the defendant to serve expert evidence from the following: (a) Mr Jeff Williams, aquatic event consultant; (b) Associate Professor Paul Miniter, orthopaedic surgeon; (c) Dr McGill, rheumatologist; and (d) Mr Stretton, occupational therapist. (2) Service of the said expert evidence is to be completed on or before 29 July 2022. (3) The plaintiff has leave to serve any reply evidence on or before 26 August 2022. (4) The costs of the application are to be paid by the defendant.
Catchwords:	PRACTICE AND PROCEDURE – Application for leave to file expert evidence out of time – rules 1205, 1241 and 1401 of Court Procedures Rules 2006 (ACT) – where neither party complied with timelines for service of evidence – where matter listed for hearing and no expert evidence has been served by defendant – whether extension of time in the interests of justice
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1205, 1241, 1401
Cases Cited:	Alam v Australian Capital Territory [2019] ACTSC 153 Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors [2017] ACTSC 223 Pryce v Dunlap [2016] ACTSC 338 Russell v Glen [2020] ACTSC 81 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Parties:	Jack Glover (Plaintiff) Daniel Fuller (Defendant)
Representation:	Counsel D Crowe (Plaintiff) S Walsh (Defendant)
Solicitors Maliganis Edwards Johnson (Plaintiff) Barry Nilsson. Lawyers (Defendant)
File Number:	SC 281 of 2018

McWilliam AsJ:

The plaintiff in this proceeding was 12 years old when he participated in a recreational activity described as “tubing”. That involved being carried in an inflatable tube or “biscuit”, which was towed by a speedboat along the water at Burrinjuck Dam in New South Wales. The tube flipped, which the plaintiff alleges caused him to suffer a range of injuries to the spine, back and shoulders, which have led to cognitive and physical disabilities. He has brought a claim in negligence against the defendant, who was the driver of the speedboat, alleging that by failing to have a spotter, driving the boat in a manner that predisposed the tube to flipping and disregarding the risks to the plaintiff when this occurred, the defendant negligently caused a wrenching injury to the plaintiff’s spine.

The defence to the allegations includes that the plaintiff’s injuries were due to pre-existing vulnerabilities in his back (including a pars defect and stress fractures in his lower back) rather than any negligent conduct by the defendant. Causation is thus a substantial issue in the proceeding, which is listed for final hearing, commencing on 5 September 2022.

The interlocutory application for determination

Before the Court is an application (filed 2 May 2022) by the defendant for leave to serve expert evidence. Expert evidence has been served by the plaintiff. A separate aspect of the application dealing with answers…

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.

Continue reading Glover v Fuller

Details

AGLC: Glover v Fuller [2022] ACTSC 144
Case: [2022] ACTSC 144
Decision Date

CaseChat Overview and Summary

Glover v Fuller is a personal injury case brought by the plaintiff, Jack Glover, against the defendant, Daniel Fuller, who was the driver of a speedboat involved in an incident where the plaintiff suffered alleged spinal, back and shoulder injuries. The plaintiff is claiming that the defendant was negligent in driving the boat in a manner that predisposed the tube to flipping and disregarding the risks to the plaintiff when this occurred. The defence to the allegations includes that the plaintiff's injuries were due to pre-existing vulnerabilities in his back rather than any negligent conduct by the defendant. The matter is listed for final hearing, commencing on 5 September 2022.

The defendant made an application for leave to serve expert evidence outside of the usual timelines. The application was initially pursued under r 1241(3) of the Court Procedures Rules 2006 (ACT) (Rules) but was orally amended during the hearing to seek leave under r 1401 of the Rules. The Court considered the relevant legal issues and concluded that the applicable discretionary test was what the interests of justice require. The Court considered matters relevant to the exercise of its discretion, including the importance of the issues, volume and character of the evidence, and complexity of the case, as well as the need for a proper explanation for any delay. The Court found that the interests of justice favoured granting leave to the defendant to serve expert evidence.

The Court granted leave to the defendant to serve expert evidence from the following: Mr Jeff Williams, aquatic event consultant; Associate Professor Paul Miniter, orthopaedic surgeon; Dr McGill, rheumatologist; and Mr Stretton, occupational therapist. The defendant was required to complete service of the expert evidence by 29 July 2022. The plaintiff was granted leave to serve any reply evidence on or before 26 August 2022. The costs of the application were to be paid by the defendant.

Orders