Johnson by her next friend Alicia Johnson v St George Community Housing Limited

[2022] NSWSC 1297

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Johnson by her next friend Alicia Johnson v St George Community Housing Limited [2022] NSWSC 1297

Hearing dates:

21 September 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The plaintiff is granted leave pursuant to UCPR 31.28 to rely on the report of Dr Ray Hope dated 2 September 2022.

(2) I note that the parties will liaise regarding any other orders they consider necessary or helpful in further preparation of the matter, those orders are to include a date for the experts to meet and conclave and a further date for mediation. The parties are to notify my chambers by email later today as to the agreed further orders.

(3) The defendant is to pay the plaintiff’s costs of the notice of motion.

Catchwords:

CIVIL PROCEDURE – admissibility of expert report – service out of time – leave – supplementary report updates an earlier version of a report that has been served in accordance with rule 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) – leave granted to rely on the report

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Emily Johnson by her next friend Alicia Johnson (Plaintiff)
St George Community Housing Limited (Defendant)

Representation:

Counsel:
D Toomey SC / S.J Holmes (Plaintiff)
G Mahony (Defendant)

Solicitors:
Longton Legal (Plaintiff)
Carter Newell Lawyers (Defendant)

File Number(s):

2020/00126728

Publication restriction:

Nil

REVISED EX TEMPORE Judgment

1. On 28 April 2020 the plaintiff filed a statement of claim via her mother, her tutor, alleging that a large glass sliding door at [REDACTED], came free from its housing on 30 July 2017 and fell onto her causing her injuries. She was one year old at the time and is now five years old. It was alleged that the defendant, St George Community Housing Ltd (“St George”), was the owner and occupier of the premises and that it was negligent in failing to maintain or repair the door.

2. On 31 August 2020 St George filed a defence admitting ownership of the premises, asserting that it was the landlord only and not the occupier, and referring to the terms of the lease agreement. St George admitted the existence of the glass sliding door, but denied it was liable, did not admit the scope of the duty of care alleged in the statement of claim and in effect, denied liability altogether. St George also pleaded contributory negligence on the part of the child Emily's mother, who is her tutor in these proceedings.

3. On 10 June 2021 a directions hearing before the Common Law Registrar took place, and amongst other things, the plaintiff was ordered to serve her expert liability evidence by 29 July 2021 and St George was to serve theirs in response by 23 September 2021.

4. On 5 August 2021 so six days late but not a delay that has any relevance or moment at all in my view, a report of Dr Ray Hope from Gilmore Engineers dated 4 August 2021 was served on the solicitor for St George. This report was prepared on the basis of a virtual inspection of the door and premises, noting that the State of New South Wales was in the middle of a COVID-19 epidemic and there were Public Health Orders in place at the time that limited both access to interstate travel but also, relevantly an attitude of care in respect of unnecessary physical visits to persons' homes. I take judicial notice of that latter point, it not being one specifically raised by the parties but to my mind a relevant consideration at that particular point in the COVID-19 epidemic.

5. On 27 September 2021 the Common Law Registrar extended time for the defendant to serve its expert evidence in reply, quite generously, to 17 December 2021. That is an extension of two months to the previous timetable.

6. On 20 December 2021 a report of Mr Frank Soto, Engineer, dated 17 December 2021 was served. His report included reference to three inspections of the door: one on 21 August 2017 (before this litigation had commenced), one on 19 November 2021 and another on 10 December 2021. Mr Soto noted in the introduction to his report that the inspections in 2021 were to “collect further details and measurements to use in compilation of this report”. He also noted an extensive series of documents he had reviewed received from his instructing solicitors on 28 October 2021 and that those documents included interviews and video recordings.

7. On 3 February 2022 the Common Law Registrar made an order that the experts on liability confer and prepare a joint report by 26 August 2022.

8. On 11 February 2022, the matter came before Cavanagh J for the allocation of a hearing date, if he thought appropriate, as well as orders directing the matter towards hearing. Emily's matter was listed for hearing but confined to the liability issue, an issue that is shared with her mother's nervous shock claim. As I understand it, the mother's nervous shock claim is listed for hearing as well on the date his Honour allocated, which is 17 October 2022 with a five-day estimate. I understand Emily has claimed damages for injuries to her head, so understandably that aspect of the litigation has been, for the moment, put to one side.

9. His Honour ordered, relevantly, that the liability evidence in one matter be evidence in the other and that in effect, the liability issue is to be heard and determined together, that the parties participate in a mediation by 2 September and that the matters have a further status review on 12 August before his Honour.

10. In the meantime, on 19 May 2022, an amended statement of claim was filed which included a particular added to paragraph 13 referring to a prior incident at the premises in January 2016 where the door came free from its housing, following which the defendant was notified and a work order dated 15 January 2016 was prepared.

11. On 20 May 2022, St George's solicitor filed a defence in the same terms as its prior defence.

12. On 12 August 2022, at the status review before Cavanagh J, further orders were made. The lawyers for the plaintiff, having apparently raised the need for Dr Hope to visit the premises led to his Honour ordering specifically that Dr Hope conduct a view of the premises by 2 September 2022 and for the parties' liability experts to confer and prepare a joint report by 16 September 2022. There was also leave given for a further statement of claim to be filed by 19 August 2022. The hearing date was confirmed and the date by which a mediation was to take place was pushed back to 20 September 2022.

13. I interpolate that counsel for the defendant, Ms Mahony, made the submission that at this point the legal representatives for the plaintiff should have raised the issue of leave to serve a further report. However, in my view, such an order would have been premature and meaningless in circumstances where there was no clarity as to whether a further report would be required to be prepared until the inspection had taken place.

14. His Honour made a fresh order regarding service of statements of oral evidence of each lay witness that the plaintiff intended to adduce on any and all questions of fact to be decided at the hearing in October and required that material be served by 16 September 2022.

15. As I understand the affidavit of Ms Martin, solicitor for the defendant, affirmed on 19 September 2022, that material was served on 14 September 2022 and included a statement of a handyman who attended the property on 14 August and some photographs and videos taken two weeks after the incident. Paragraph 10 of the affidavit of Ms Martin makes it clear that this material has not previously been disclosed to the defendant and so their expert has not yet had the opportunity to consider that material in the course of forming his opinion.

16. On 18 August 2022 a further amended statement of claim was filed. It included a further statement of fact in paragraph 12 in respect of the defective nature and operation of the door and added some further particulars of negligence which provided specificity as to what the plaintiff asserts were the failures of the defendant.

17. On 29 August 2022 the solicitor for the plaintiff wrote to St George's solicitor to put them on notice that there was an intention to serve a supplementary report of Dr Hope.

18. An affidavit of the solicitor for the plaintiff was read in support of the notice of motion. The notice of motion was filed on 8 September 2022 and seeks leave pursuant to r 31.28 to rely upon the report of Dr Ray Hope dated 2 September 2022. The affidavit provides a useful procedural background and appended relevant correspondence as well as the reports of the experts in question.

19. Amongst that correspondence is the email notification I have just referred to regarding the intention of the plaintiff's solicitor to serve a further report of Dr Hope. That email of 29 August was sent at 4:17 pm.

20. At 4:24pm a response was forwarded by the solicitor with conduct of the matter on behalf of the defendant which included the following assertions:

“We in turn put the plaintiff on notice that the defendant will object to the reliance by the plaintiff on any supplementary report served by Dr Hope including its consideration in the upcoming expert conclave.”

21. In my view, a communication of that type is of an obstructive quality that ought not ever be forwarded in proceedings in this Court. It is evident that email was sent without having had the opportunity to consider what was in Dr Hope's report. It indicated an attitude that no matter what was in Dr Hope's report, the defendant would not accede to it being deployed in the proceedings at all, absent an order from the Court.

22. Whilst there is no harm in being robust in defending one's client's interests, it is in my view contrary to the requirements of s 56(3) of the Civil Procedure Act2005 (NSW) to send correspondence that so clearly indicates an attitude where no further correspondence, discussion, consideration or flexibility would be extended, particularly in litigation involving a child and a corporate structure, but really in any litigation.

23. On 2 September 2022 the plaintiff's solicitor served, by email, the supplementary report of Dr Hope.

24. Certainly in the background, as correctly pointed out by Ms Mahony, there were email discussions between the parties about potential other arrangements in the proceedings including dates and times for conclaves and other matters of preparation. I note specifically, as correctly submitted by Ms Mahony, the correspondence is completely courteous and is co-operative about a number of aspects of preparation, but unfortunately does not at any point address or relax the particular attitude taken in respect of Dr Hope's supplementary report.

25. On 2 September 2022 an email was forwarded by the solicitor for the defendant objecting to late service and reliance upon Dr Hope's report, asserting that the report “raises new matters” that Mr Soto has not previously "had opportunity to consider or respond" and that it is evidence that should have been included in evidence-in-chief, the time for which service of which has passed. The letter continued as follows:

“3. If the plaintiffs wish to rely on the report:

(a) A motion should be filed seeking the appropriate leave to do so;

(b) The liability expert conclave will need to be adjourned until such time as the matter of the report's inclusion into evidence is resolved with your client paying any costs thrown away by reason of the adjournment; and

(c) Should leave be granted for your client to rely on the report, our client will require time to consider and respond to it. We anticipate that such action will likely necessitate the vacation of the mediation and trial date. Should that be the case, we will seek our client's costs thrown away by reason of those vacations.”

26. The letter goes on to assert that given those matters, in particular the provision of the report on 2 September, the liability conclave “cannot proceed on 5 September” and that it will be rescheduled for the earliest opportunity "should the plaintiffs agree that they do not wish to rely on Dr Hope's 2 September 2022 report".

27. There is nothing in that correspondence that indicates any flexibility at all regarding the deployment of Dr Hope's supplementary report in the proceedings.

28. Turning to the report of Dr Hope, it cannot be said to be a short document. It is, including his curriculum vitae, 20 pages long. It describes his inspection and testing, including photographs, some of which occupy most of a page, and sets out his views in response to the matters raised in Mr Soto's report. This part is 17 pages.

29. I should note at this stage I accept the submissions of senior counsel for the plaintiff, Mr Toomey, that Dr Hope set out a case theory as to what happened and how the door fell on the day in his first report in August 2021. This further report largely consists of responding to assertions by Mr Soto as to the inadequacy of Dr Hope's approach to measurements and analysis in the first report and to that extent is clearly a supplementary report in reply.

30. I do not accept the submission made by Ms Mahony that the report raises “new matters”. It is very much a supplementary report in response to matters raised by the defendant’s expert. If in responding to Mr Soto's report and criticisms, which are many, Dr Hope carries out a further examination and measurements so that he can respond, it is not a persuasive complaint to be made that Mr Soto himself had not done all relevant measurements. Mr Soto had a number of opportunities to visit the premises and indeed when invited to do so again in late August 2022, apparently told the solicitor for the defendant that he did not need another inspection because he had had many inspections already.

31. On 8 September 2022 the defendant filed a defence to the further amended statement of claim adding a new allegation of reliance on a 59 page “Condition Report” and an evidentiary statement of a named person. Quite apart from the merits of any such approach, the defence is defective in that it pleads evidence not facts as required by the Uniform Civil Procedure Rules 2005 (NSW). The same criticism can be applied to the defendant in its earlier defence where it asserted reliance upon “the plaintiff’s statement”, (which is apparently an incorrect reference to a statement by the plaintiff’s tutor).

32. In terms of submissions made today, Mr Toomey pointed out a number of matters that underpinned the unfortunate position his clients have been placed in of needing to spend costs and the Court's time on making an application like this in litigation that is one that contains fairly circumscribed issues.

33. First, the inspection occurred because the defendant's expert proposed that Dr Hope attend the site because of the suggestion that should he do so, and carry out the analysis Mr Soto carried out, he would change his case theory as to what happened and why the door fell on the child on that day.

34. Second, there was a proposal made by the legal representative for the defendant that both experts go together but Mr Soto advised that he did not need to go again because he had viewed the door many times.

35. Third, the case theory provided by Dr Hope as to why the door fell was because the track at the top of the door was pushed up and so cleared the top of the door and removed the lateral stability. The case theory of Mr Soto was to the contrary, that it was lifted off the lower track and over the lip of the lower track, leaving it clear of the upper track and thus it fell that way. Dr Hope has always adhered to his case theory and the supplementary report really only responds to criticisms made of that case theory by Mr Soto's report.

36. As set out in the affidavit of Ms Martin, which was read on behalf of the defendant in opposition to the order sought by the plaintiff, as at 19 September 2022, Dr Hope's report has not been given to Mr Soto, although I was informed by Ms Mahony that Mr Soto was at least told, on 2 September 2022, that there was a supplementary report of Dr Hope.

37. It mystifies me as to why the report has not been provided to Mr Soto to read. Apparently even today the report still has not been provided to Mr Soto. I consider this approach to be in contravention of the solicitor's obligations under s 56 of the Civil Procedure Act and an obstructive and inappropriate approach to this stage of the litigation. Regardless of whether the Court granted leave for the report to be used or not, it is still inappropriate to take no steps to further the litigation and put the expert in a position to be able to deal with the issues and indicate whether they are problematic for him or not. Instead, it appears from the correspondence in the affidavit of Ms Martin to be presumed that the views would be problematic, and to be presumed that a further inspection will be required, and to be presumed that delays will inevitably occur that are so significant that a mediation cannot take place and a hearing date four weeks away cannot proceed.

38. The affidavit referred to some reservations by the current tenants to allowing a further inspection if Mr Soto requires one, but it seems to me the affidavit has a number of gaps and does not explain why that presents as an ongoing problem. It is asserted that the tenants are away “the week commencing 19 September”. But, again, I do not see that as an insurmountable obstacle. There is no clarity in the affidavit as to when they will be returning, and whether other arrangements can be made for access.

39. In short, Mr Toomey SC submitted that the supplementary report of Dr Hope does not provide any new opinion, it is just an update, and the affidavit material does not provide any basis upon which to conclude that there is prejudice to the defendant so any complaints of prejudice are without substance.

40. Ms Mahony drew my attention to certain technical aspects of Dr Hope's supplementary report. In particular, on page 10 at the top of the page, certain measurements had been taken using Vernier Callipers that have not been taken by Mr Soto, and the conclusions on page 17 of the report indicate certain physical examinations and physical testing took place, including some video evidence of that physical testing, and Mr Soto needed an opportunity to consider all of that carefully, to (potentially) carry out further inspections and conduct further measurements, prepare a report, if he thought appropriate, and then the experts would meet and conclave and subsequently assist the Court with, no doubt, what the Court will order as joint evidence.

41. All those points are correct. The defendant of course needs an opportunity to examine that material and respond and this makes the almost three-week delay in providing the report to the expert even more mystifying and difficult to justify.

42. The factual issues in this trial relate to a door and its attachment to premises. They are within short compass, and no doubt with the expertise of the relevant engineers, these matters can be attended to quite quickly. It seems to me those kinds of tasks do not in any way endanger a revised timetable taking this matter to hearing and they certainly do not endanger the hearing date four weeks away.

43. Simple co-operation between the parties could have adjusted the dates in the timetables and the Court could have made those orders in Chambers. Unfortunately, instead the plaintiff was required to file a notice of motion on 8 September.

44. I do not accept the submission made that a delay between 2 September and 8 September of four working days is “delay”. I consider that the notice of motion was filed with appropriate alacrity and had to be filed given the intransigent position indicated by the defendant.

45. In my view the parameters of the issues set out in the supplementary report of Dr Hope are confined and not new. They relate, in the main, to his physical inspection of the door where he saw other signs that it appears Mr Soto has either missed, or did not think were relevant or important enough to comment upon. It seems to me that position can be quickly remedied and should be remedied. In making that remark I am not in any way being critical of any expert but, as we all know, issues about which a matter is decided that rely upon experts can often not be confined to the relevant ones until shortly before trial. Hence the purpose of the conclave and joint evidence.

26. There is nothing in the affidavit material that suggests there is any impediment to a conclave taking place very soon and the experts assisting the Court at the trial. An appropriate timetable can be agreed or imposed by the Court to facilitate matters, and it seems to me an appropriate course is for me to require the parties to liaise on those matters because I am persuaded that I should grant the order sought in the plaintiff's notice of motion.

27. I should note in making these observations and reaching the view that I have, Rule 31.28, as correctly pointed out by Ms Mahony, provides certain parameters for disclosure of experts' reports. That rule requires that each party must serve their expert reports in accordance with any order of the Court, and that an application to the Court for an order, other than an order solely for abridgement or extension of time, may be made without serving a notice of motion. Except by leave of the Court, or by consent of the parties, an expert report is not admissible unless it has been served in accordance with this rule. As also correctly pointed out by Ms Mahony, the court is not to give leave unless it is satisfied that there are exceptional circumstances that warrant the granting of leave, or that the report concerned merely updates an earlier version of the report that has been served in accordance with the requirements of the rule.

28. I am satisfied that sub rule 4(b) applies and that this report is an update to the earlier report that was served in accordance with the orders of the Registrar in 2021.

29. As this Court has said on a number of occasions, all decisions made under the UCPR have to be in compliance with the overriding purpose of the Civil Procedure Act which is to facilitate just, quick and cheap resolution of the real issues in the proceedings.

30. In this case, the real issues in the proceedings are why this door fell on this child on that day. The experts retained are the people that can assist the Court in that regard. It is not just, quick or cheap to be obstructive regarding co-operation between those experts to refine and communicate with each other about what are those, in this case, engineering issues, that between those experts can be either solved or resolved or can be the subject of evidence to assist the Court.

31. Section 57 of the Civil Procedure Act discusses the objects of case management. It discusses the reasons for them being the just determination of proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of proceedings. It seems to me that this case is an illustration of where those obligations and requirements have not been sufficiently thought about by the defendant and so this Court has had to take time on a duty day to deal with a matter that really should have been the subject of co-operation between the parties, and not have required the plaintiff to go to the time and expense of filing a notice of motion.

32. The orders I make are as follows:

1. The plaintiff is granted leave pursuant to UCPR 31.28 to rely on the report of Dr Ray Hope dated 2 September 2022.

2. I note that the parties will liaise regarding any other orders they consider necessary or helpful in further preparation of the matter, those orders are to include a date for the experts to meet and conclave and a further date for mediation. The parties are to notify my chambers by email later today as to the agreed further orders.

3. The defendant is to pay the plaintiff's costs of the notice of motion.

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Amendments

28 September 2022 - Redaction of location.

Decision last updated: 28 September 2022