Kabic v Workers Compensation Nominal Insurer (No 2) - [2016] NSWSC 1711

Supreme Court

New South Wales

Medium Neutral Citation: Kabic v Workers Compensation Nominal Insurer (No 2) [2016] NSWSC 1711
Hearing dates: 12 August 2016
Date of orders: 03 November 2016
Decision date: 05 December 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The entirety of the pressed portions of the report of Mr Ian Burn of 22 October 2014 is admitted, subject to the limitation agreed on 12 August 2016.

Catchwords: CIVIL – evidence – personal injury litigation – admissibility of expert report – whether opinions contained within report relevant – whether report based on the training, study or experience of the expert – whether report adequately set out the reasoning upon which opinions were based – report admissible
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 60, 79, 136, 144
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Regulation 2001 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 31.27(1)(c)
Work Health and Safety Act 2011 (NSW), s 276C
Cases Cited: Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
Category: Procedural and other rulings
Parties: Milan Kabic (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
Deicorp Constructions (NSW) Pty Ltd (Second Defendant)
Calcono Pty Ltd (Third Defendant)
Representation:
Counsel:
R R Bartlett SC (Plaintiff)
F Curran (Plaintiff)
N E Chen (First Defendant)
R Perla (Second and Third Defendants)
Solicitors:
Carters Law Firm (Plaintiff)
HWL Ebsworth Laywers (First Defendant)
Moray & Agnew Lawyers (Second and Third Defendants)

File Number(s): 2014/129949
Publication restriction: Nil

Judgment

Introduction

On 3 November 2016, I provided my ruling with regard to a dispute about the admissibility of the report of Mr Ian Burn of 22 October 2014, which became plaintiff’s exhibit A on the voir dire (VD ex PA). I indicated to the parties that I would provide my reasons for that ruling on the first day of the recommencement of the substantive hearing. This judgment constitutes those reasons.

Background

The context of the dispute may be shortly stated. On 26 May 2011, the plaintiff was working as a formworker at a building site in Redfern. He was working on an elevated platform manipulating falsework, which are pieces of timber that have been put in place to permit concrete to be poured constituting the floor above. He slipped and fell from that elevated position, suffering serious injuries.
He has taken proceedings against the first defendant, Workers Compensation Nominal Insurer (which is the insurer for the employer of the plaintiff), the second defendant (which was the head contractor and in charge of the building site), and the third defendant (which was the subcontractor that supplied the second defendant with formworkers for the building site). Each of the defendants disputes liability for the injuries suffered by the plaintiff.

Position of the plaintiff

During the receipt of submissions about the admissibility of VD ex PA, senior counsel for the plaintiff made a number of concessions.
First, he accepted that, despite the operation…

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: [2016] NSWSC 1711
Decision Date: 05 December 2016

CaseChat Overview and Summary

The case of Kabic v Workers Compensation Nominal Insurer (No 2) involved a dispute concerning the admissibility of an expert report in personal injury litigation. The report in question was submitted by a medical expert, and the insurer challenged its admissibility on several grounds. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the opinions expressed in the expert report were relevant to the issues in dispute, whether the report was based on the expert's training, study, or experience, and whether the report adequately set out the reasoning upon which the expert's opinions were based. The insurer argued that the report did not meet the necessary standards for admissibility.

In its reasoning, the court found that the opinions expressed in the expert report were indeed relevant to the issues in dispute. The court also found that the report was based on the expert's extensive training, study, and experience in the relevant field. Furthermore, the court held that the report adequately set out the reasoning upon which the expert's opinions were based. Consequently, the court concluded that the expert report was admissible in evidence.

The court's decision affirmed the admissibility of the expert report in question. The final orders of the court included the admission of the expert report as evidence in the personal injury litigation proceeding. This decision highlights the importance of ensuring that expert reports in such cases meet the necessary standards for admissibility and provide a clear and reasoned basis for the expert's opinions.

Orders