Greentree v Sew Simple Australia Pty Limited
[2021] ACTSC 66
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Greentree v Sew Simple Australia Pty Limited |
Citation: | [2021] ACTSC 66 |
Hearing Date: | 9 April 2021 |
Decision Date: | 20 April 2021 |
Before: | McWilliam AsJ |
Decision: | See [57] |
Catchwords: | PRACTICE & PROCEDURE – EXPERT EVIDENCE – Whether leave should be granted to rely on expert reports served late – where plaintiff required further surgery after orders for serving expert evidence were made – where plaintiff failed to communicate the need to serve further evidence with defendant – whether exceptional circumstances |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 1205, 1241 |
Cases Cited: | Steed v McGougall and Anor [2018] ACTSC 233 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 |
Parties: | Debra Ann Greentree (Plaintiff) Sew Simple Australia Pty Limited (ACN 008 587 326) (Defendant) |
Representation: | Counsel J Ronald (Plaintiff) S Bryson (Defendant) |
| Solicitors Blumers (Plaintiff) Moray & Agnew (Defendant) | |
File Number: | SC 401 of 2018 |
McWilliam AsJ:
The plaintiff has brought a claim in negligence against her employer, the defendant. The plaintiff alleges that on 9 June 2016 she was injured when lifting a sewing machine in the course of carrying out her duties at work. The substantive proceedings are listed for hearing on 10 May 2021.
By the present application dated 2 March 2021, the plaintiff seeks leave to rely upon further expert evidence at the hearing, which has been served out of time. The plaintiff seeks to rely on the following four medical reports:
(a)Report of Professor Stevens, psychologist, dated 18 December 2020 (the Stevens Report), served on 12 January 2021;
(b)Report of Dr Beer, orthopaedic surgeon, dated 8 February 2021 (the Beer Report) served on 10 February 2021;
(c)Report of Mr Woolley, occupational therapist, dated 18 February 2021 (the Woolley Report) served on 24 February 2021; and
(d)Report of Dr Buckley, pain specialist, dated 11 February 2021 (the Buckley Report), served on 1 March 2021.
The matter has been listed for hearing since 17 December 2020. At that time, the Court ordered that updated medical reports were to be served within 14 days of receipt, and that any service of primary medical evidence not served to date would require a formal application in proceeding to be made if not agreed by the parties.
The four reports that are the subject of this application are not updating evidence, nor does the defendant consent to any of the reports being admitted at the hearing. Accordingly, a formal application has been made to rely upon the evidence, and the Court must determine whether to grant leave to the plaintiff to do so. It has been convenient to the parties to have the Court determine the issue in advance of the hearing.
In support of the application, the plaintiff relied upon two affidavits of her solicitor, and a bundle of correspondence which included each of the four expert reports. No affidavit evidence was relied upon by the defendant.
The Court’s power to grant leave
The application is said to have been brought pursuant to r 1205 of the Court Procedures Rules 2006 (ACT) (the Rules). That rule does no more than give the Court the power to make certain directions in relation to expert evidence.
The application is in fact governed by r 1241 of the Rules, subrule (3)(a) of which provides that where an expert report is not served in accordance with the directions of the Court, the expert report must not be tendered and is not admissible in the proceeding, except with the Court’s leave.
Where the expert report is not an update to an earlier version of an expert report served within time, the Court must not grant leave under r 1241(3) unless satisfied that there are “exceptional circumstances” that justify giving leave: r 1241(4)(a).
The meaning of exceptional circumstances was discussed in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub), where the NSW Court of Appeal gave consideration to the substantially equivalent procedural rule in that jurisdiction. In Yacoub, Campbell JA (with whom Tobias JA and Handley AJA agreed) extracted what his Honour considered to capture the meaning of the expression ‘exceptional circumstances’ at [66] (formatting as per the original):
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 [(R v Buckland)] (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e)Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
In Steed v McGougall and Anor [2018] ACTSC 233 (Steed) at [18], Murrell CJ applied the above passage in Yacoub.Her Honour had earlier considered the rationale for r 1241 at [17]:
Rule 1241 recognises that the interests of justice encompass not only the interests of a party that is seeking to rely upon an expert report, but also the interests of other parties and the Court’s interest in the efficient case management of matters, ensuring that matters are dealt with expeditiously from a public perspective. Sub-rule (4) of r 1241 enables all interests to be considered by providing that “[t]he court must not give leave to rely upon an expert report in circumstances [such as have occurred in this case] unless satisfied that ... there are exceptional circumstances that justify giving leave”. That is because in the ordinary course of events the parties have adequate opportunity to obtain and serve expert reports at an early stage of proceedings.
The same passage from Yacoub was also referred to in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (Theodorelos) at [92]-[93] per Refshauge J as a ‘very helpful framework from which to consider the application of the phrase’.
In Theodorelos, Refshauge J went on to state at [120]-[122]:
It is clearly in the interests of justice that a party should be able to adduce all the admissible evidence the party wants to adduce. Such evidence should not be excluded simply because the rules require it; that would make the rules a master of the litigation and not the servant.
Nevertheless, the rules are the agreed policy as to the procedural basis on which the litigation in the court is to be conducted, balancing all the relevant interests of the parties, the court and the community.
The purposes of a rule such as r 1241 of the Court Procedures Rules are various but directed towards ensuring that the issues are crystallised well before an action is heard and to preventing prejudice to a party in not knowing what expert evidence needs to be confronted and addressed as well as ensuring that there is time to do so.
The above authorities make it clear that, absent the Court’s satisfaction that exceptional circumstances exist justifying the grant of leave in relation to each expert report, the Court’s residual discretion to grant leave under the rule is not enlivened.
Are there exceptional circumstances justifying leave to rely on the expert reports?
In order to determine whether there are any circumstances that are exceptional – either in isolation or in combination – it is necessary to consider the totality of the relevant circumstances. In this case, that involves an appreciation of the injuries alleged and how they have changed, along with the relevant procedural history.
The plaintiff’s primary argument as to why there should be a grant of leave is that her medical condition has changed significantly since expert evidence was required to be served. She submits that after such orders were made, she required two significant surgeries. As a result of those surgeries, there was a delay in her injuries stabilising, which has created an exceptional circumstance. It is only since the end of 2020, shortly before the listing hearing, that her injuries have stabilised.
The injuries alleged
By way of a summary, the Statement of Claim filed on 3 September 2018 alleges that the plaintiff suffered:
(a)a right shoulder injury,
(b)aggravation of an injury to her upper back,
(c)injuries to her neck, arms, hands, right trapezius, left shoulder,
(d)aggravation of depression and migraines, and
(e)a psychological injury.
The reference to an ‘aggravation’ of certain injuries relates to the fact that the plaintiff had also been involved in a motor vehicle accident in January 2005. As a result, she suffered injuries including to her cervical spine, arms and psychological injury.
The procedural history
Consent orders were made by way of a first directions timetable on 17 October 2018. They included a requirement for the plaintiff to serve expert evidence by 8 February 2019, and a listing hearing to occur on 11 April 2019. That is the only time an order was expressly made in relation to the service of the plaintiff’s expert evidence.
The Court record discloses that on 29 March 2019, the upcoming listing hearing was adjourned by consent. At the time the parties approached the Court for such orders, the solicitor with carriage of the matter for the plaintiff communicated the following:
It has been recommended that the plaintiff undergo spinal surgery and, following this, she may also proceed to shoulder surgery.
At that stage, the plaintiff was already in default of the direction made to serve her expert evidence by 8 February 2019. It seems to have been impliedly accepted that the plaintiff would not be serving her medical evidence at that time. However, the parties did not seek to vacate the order requiring the plaintiff to serve her expert evidence. Had the direction to serve expert evidence been vacated, or, indeed, had there been any correspondence with the defendant about how the further surgeries would impact the progress of her case, the plaintiff would not be in the position she now finds herself.
Ultimately, the listing hearing was adjourned four times, each time by consent. The two further surgeries were the reason for the adjournments. On 30 October 2019, the plaintiff underwent a C5/6 and C6/7 decompression with disc replacement. On 26 May 2020, the plaintiff underwent an arthroscopic right shoulder rotator cuff repair and biceps tenodesis.
The final adjournment of the listing hearing occurred on 24 August 2020. On that occasion, by consent and by orders made in chambers, the Court vacated a listing hearing that was to occur on 17 September 2020. The listing hearing was adjourned to 17 December 2020 and the parties were granted liberty to relist the matter on 7 days’ notice. The parties did not seek any orders about the service of medical reports, and no further direction requiring the plaintiff to serve her expert evidence was made.
When those directions were made on 24 August 2020, the Deputy Registrar informed the parties that:
Given the age of the proceedings, should any further adjournments beyond December 2020 be required, it will be necessary for the plaintiff to file a formal application and supporting affidavit addressing the delays.
Significantly, the effect of the Court’s communication on 24 August 2020 was not that there would be no further adjournments. It was to the effect that if the plaintiff required further time, she needed to explain why, through a formal application and supporting affidavit evidence.
In any event, the plaintiff’s legal representatives did not take that course. The matter came before the Court for the listing hearing on 17 December 2020. The solicitor for the plaintiff apparently raised the service of further medical evidence generally and sought a later hearing date than the date allocated in May 2021. No affidavit was prepared in respect of the further evidence required and the defendant’s solicitors appear to have been totally unaware of the scope of the further evidence that was contemplated by the plaintiff.
The further evidence that is now the subject of this application was either in contemplation or in the process of being prepared at the time the parties attended the listing hearing in December 2020. For example, the plaintiff had undergone assessment with Professor Stevens on 10 December and her solicitors were awaiting imminent receipt of his report at the time the listing hearing occurred. In light of this, it must have been clear to the plaintiff’s legal representatives that the matter was not ready to take a hearing date, yet nothing in evidence or on the Court record shows this was specifically disclosed and communicated by the plaintiff.
The plaintiff might have had forensic reasons for declining to telegraph whether and what further reports were to be served. However, the plaintiff knew that the defendant had not served any psychological evidence and would almost certainly require an opportunity to address it, if the report that the plaintiff had in contemplation was served. The plaintiff’s silence in this regard had the effect of misleading the Court as to the state of readiness of the matter.
Had such matters been properly raised, with supporting affidavit evidence, it would also have been clear to both the defendant and the Court that the matter was not ready to be set down for hearing.
The expert reports
In her affidavit, the solicitor for the plaintiff has frankly conceded that it was not apparent to her that there was a need for evidence from a psychologist, orthopaedic surgeon, occupational therapist and pain specialist. That evidence is somewhat surprising given that, apart from the report of Dr Buckley (the pain specialist), the injuries and disabilities that would require expert evidence were all pleaded from the outset.
However, the four reports give some content to the solicitor’s view. Although the detail of the reports was not explored at the hearing, on closer review I can see that the two surgeries have been the catalyst for this recent tranche of evidence. Before the plaintiff underwent the two further surgeries, injuries such as the plaintiff’s psychological condition may perhaps have been considered to be adequately addressed through clinical records. That position appears to have changed following the surgeries, or at the very least, the utility of obtaining an expert opinion appears to have increased. It may be that the solicitor did not appreciate the value in obtaining the further reports until some months after the second surgery, once the plaintiff’s condition had settled but remained unresolved.
The Stevens Report is directed to the psychological injury component of the claim, including the aggravation or otherwise of the plaintiff’s depression. There was no other formal expert psychological evidence served by the plaintiff, although there are clinical reports and treatment plans that form part of the plaintiff’s clinical history. The opinion of the Stevens Report is that the plaintiff’s depression does not hinder her from working, since it is stable and well-managed. However, Professor Stevens recommended that, as her problem remains her pain condition, the plaintiff undergo a pain management program.
The recently obtained Buckley Report mentions that the plaintiff has indeed been referred to Dr Jain, a pain specialist who has been treating her following the surgery. Dr Buckley examined the plaintiff’s back and shoulder injuries on 4 February 2021. Dr Buckley had previously examined the plaintiff in August 2007 following her earlier motor vehicle accident. That gave rise to a submission from the defendant that the report should have been obtained earlier. However, it is fair to say that the plaintiff’s present condition with respect to pain was affected by the recent surgeries. Consequently, any expert evidence of Dr Buckley either could not have been obtained beforehand as the condition had not been diagnosed, or would have been overtaken due to developments in the plaintiff’s condition after the surgeries.
The Beer Report contains the expert evidence of an orthopaedic surgeon who, on 28 January 2021, examined the plaintiff’s cervical spine and shoulders after the surgeries had been carried out. Those injuries were apparent very early in the proceedings and the plaintiff had ample opportunity to obtain expert orthopaedic evidence. However, in circumstances where further surgery was to occur, it is understandable that a report might be delayed until the outcome of the surgery was known. Given the plaintiff’s back and shoulder injuries are the most serious physical complaints in this case, there would obviously be a need to assess the plaintiff’s condition post-surgery.
The Woolley Report is said to be relevant to damages, in that it assists in quantifying the plaintiff’s present and future home care and assistance requirements. Mr Woolly is an occupational therapist who assessed the plaintiff on 16 February 2021. The plaintiff’s explanation for the delay in obtaining and serving this report was again the two surgeries and the need for her injuries to sufficiently stabilise before an assessment could properly be made. It is uncontroversial that home care and assistance is reasonably a matter which relies on a long-term view of the plaintiff’s injuries once stabilised.
Findings
I accept that the plaintiff’s injuries had not stabilised until late in 2020, and that her medical condition changed significantly after proceedings had commenced. I am also prepared to accept that the four expert reports were most usefully obtained after the plaintiff’s condition had stabilised.
These matters, namely the plaintiff’s ongoing medical treatment and the lack of stability in the plaintiff’s condition, were taken into account procedurally through the numerous adjournments. It is not exceptional that a plaintiff has a need for further surgery after proceedings have commenced. Nor is it exceptional that a medical condition may take some time to stabilise and that the parties and the Court might need to take that into account in how the matter progresses.
Frustratingly though, the plaintiff’s legal representatives overlooked the complementary aspect of the progress of the case. Adjourning a listing hearing was only one piece of the procedural puzzle. Critically, the plaintiff should have communicated with the Court and the defendant about the impact the surgeries would have on the nature and timing of the plaintiff’s evidence. There is no evidence before the Court that the plaintiff addressed this with the defendant through correspondence at all during the period awaiting the two further surgeries.
The consequence of that lack of communication was that the defendant was entitled to assume no further evidence was being served. Accordingly, the defendant has served reports of an orthopaedic surgeon, neurologist and occupational physician, in addition to earlier reports provided before proceedings were commenced.
The defendant is understandably aggrieved to learn, after serving its evidence and after the matter has been set down for hearing, that there are four further expert reports in chief in the plaintiff’s case. It need hardly be said that the conduct of the plaintiff’s case in that regard has been unsatisfactory. Rule 1241 was introduced precisely to prevent situations of this kind from occurring.
Despite the lack of communication, the position remains that the two significant surgical procedures have had a clear impact on the nature and treatment of the plaintiff’s alleged injuries. The Rules and relevant practice direction envisage ‘an adequate opportunity to obtain and serve expert reports at an early stage of proceedings’ (being the language used in Steed, extracted at [10] above). In this case, once the necessity for further surgery was known, the proceedings required an exceptional timeline for the service of expert evidence. That was not achieved.
Instead, the situation has arisen where, absent the leave of the Court, the plaintiff will go to hearing in three weeks with no evidence served since the proceedings commenced. That is an exceptional outcome. The plaintiff has previously served the report of a general surgeon and a neurologist, but those reports were obtained well prior to the commencement of proceedings and much has changed as a result of the surgeries.
If leave is not granted, the plaintiff will be at a considerable evidentiary disadvantage and the Court will not receive the proper assistance it requires to determine the issues in dispute. The cause of that unsatisfactory result may be attributed to an order made during initial directions not being vacated, in combination with a failure to properly communicate the position regarding expert evidence to the defendant and the Court.
I have taken into account the defendant’s submission that there was a period of time after the second surgery and before the listing hearing where the plaintiff’s injuries had probably stabilised and there may have been some opportunity to serve expert reports before the listing hearing. The evidence is unclear about the exact time when stabilisation occurred, and the consequent opportunity for examination with a view to preparing further reports. Further, I consider such an argument is subsumed in the discussion of the failure to raise the necessity to serve further evidence before the matter was set down.
It is exceptional that, following a series of consent orders adjourning the proceedings due to the parties awaiting stabilisation of a plaintiff’s injuries, once those injuries have stabilised, the plaintiff is then deprived of the opportunity to properly present her case. The cause of that apparently unjust outcome is a procedural direction made by consent and the operation of r 1241. As Refshauge J made clear in Theodorelos (see above at [12]), the Rules should serve the progress of the litigation, and not be its master. I am satisfied that the circumstances of this case amount to ‘exceptional circumstances’ under r 1241(4)(a).
The Court’s residual discretion
Once exceptional circumstances are established, it is necessary to consider whether those circumstances ‘justify’ the grant of leave: r 1241(4)(a). This includes the Court giving consideration to other relevant factors. Some of those factors have already been discussed, such as case management considerations, the delay in serving the evidence, the explanation for any delay, and the prejudice to the plaintiff if leave were not granted.
There are two further considerations that are significant and have weighed heavily in the balance on this application: the impact on the proceedings and the prejudice to the defendant. Ultimately, however, they are not determinative of the outcome because they are able to be accommodated by other means.
As to the first, the hearing is now less than a month away. Again, that is in part a product of the plaintiff only filing this application late. The parties then adjourned the hearing of the application by consent due to the unavailability of the plaintiff’s counsel. The outcome of this application should not sound as any encouragement to parties to repeat the conduct of litigation in the manner of these proceedings. What ought to have occurred is an application made to the Court as soon as the issue was identified, with an urgent hearing sought and without regard to the availability of any particular counsel.
As to the second, the defendant did not rely on evidence of actual prejudice. Given the proximity of the hearing date and the content of the reports, it is likely that such prejudice exists in these circumstances. It may also have been increased by the delay of a month in bringing the application on for hearing. Any chance the defendant had of responding to the evidence before hearing must have decreased with that passage of time.
The defendant submitted that even if it was now able to obtain evidence in sufficient time for the hearing to commence as presently listed, what may be lost is the opportunity to choose a particular expert. There may also be cost consequences arising from the request for urgent reports.
There is presently no application to vacate the hearing, and no evidence directed to that question. I consider that, at its highest, granting leave to serve these four reports might result in an adjournment of the hearing to allow the defendant time to address the plaintiff’s case.
There was also some suggestion during the hearing that the expert evidence may narrow the issues and thereby shorten the hearing. It was also suggested that the plaintiff may make certain forensic choices once the defendant discloses what is required to address the evidence. The plaintiff is equally concerned to preserve the hearing date and indicated that even if leave were granted to rely upon the expert reports, she may not rely on a particular report if that meant the hearing in May had to be vacated.
In Steed, Murrell CJ referred to the prejudice to the justice system generally if granting the application would have the consequence of adjourning the hearing: at [21]. That is an important consideration. In this case, in the event that the hearing is to be vacated, the prejudice to the justice system and other litigants may be somewhat ameliorated by the fact that the matter is part of a block listing with other matters listed to commence on 10 May 2021. Further, given the present attitude of the plaintiff to proceed with the hearing in May, this consideration has been afforded less weight.
In light of those considerations, I am satisfied that the circumstances justify the grant of leave. The preferable course is to allow the plaintiff to rely on the reports but then to give the parties the opportunity to consider how to proceed. This would include the defendant being given the opportunity to ascertain the procedural consequences of engaging experts of its choosing, including whether there are any costs consequences arising out of the urgent obtaining of a report. The defendant would then be able to notify the plaintiff so that she may in turn consider her position.
Costs
In the result, the plaintiff has been successful in respect of the application. The starting point would have been an order that costs follow the event.
However, the plaintiff’s success is a result of an indulgence of the Court. In apparent recognition of that fact, the plaintiff has only sought costs in the cause. Nevertheless, the application was only necessary because of the procedural course taken by the plaintiff, including failures to communicate with the defendant. It would not be just for the defendant to incur the plaintiff’s costs of the application in those circumstances.
Subject to hearing from the parties if either party seeks a different order, I propose to order that each party bear their own costs.
Conclusion and orders
Accordingly, the orders of the Court are as follows:
1) The plaintiff is granted leave to rely on the following expert reports:
(a) The report of Professor Stevens dated 18 December 2020;
(b) The report of Dr Beer dated 8 February 2021;
(c) The report of Mr Woolley dated 18 February 2021; and
(d) The report of Dr Buckley dated 11 February 2021.
2) The parties are to bear their own costs of the application.
3) Order 2 is stayed for 7 days and in the event that either party seeks a variation of the order within that time, is stayed until further order.
4) The matter is listed for directions on Tuesday 27 April 2021 at 9.30am before the Senior Deputy Registrar.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Dominic Page Date: 20 April 2021 |
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