McAndrew v. CMC Cairns Pty Ltd

[2007] QSC 245

[2007] QSC 245

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Brisbane Claim No 5152 of 2003

JAMES ALEXANDER GEORGE McANDREW	Plaintiff/Respondent
and
CMC CAIRNS PTY LTD	First Defendant
and
JASON DALEY	Second Defendant
and
VERO INSURANCE LIMITED	Third Party
and
ZURICH AUSTRALIAN INSURANCE	Fourth Party

CAIRNS

..DATE 03/08/2007

JUDGMENT

HIS HONOUR:  This is an application by the first third party for orders for the appointment for a Court-appointed expert on two issues relating to the assessment of damages.

The first issue is the acquiring of an expert report on the cost of purpose-built housing, and the second issue concerns the cost of vehicle modifications. The pursuit of this application originates from an order made by her Honour, Justice Wilson, on the 18th of May 2007, in which she invited the parties to consider the appointment of an expert in these areas, but failing such agreement, as indeed as happened, the matter now comes back to the Court.

The parties have had ineffectual discussions about the choice of experts. Each side has proposed experts on all areas, but these did not find favour with the other side. It is to be noted that the injuries sustained by the plaintiff occurred in circumstances where any indemnity of the defendant will be done on a public risk policy of insurance, rather than an assessment pursuant to the other statutory regimes.

In relation to the assessment of vehicle modifications, during the course of argument before me, the parties have reached some agreement which will result in the Court appointing Mr Price to advise the Court and the parties on that issue. That appointment as an expert does not, however, prevent the parties from adducing expert evidence in relation to transport associated costs, other than on the question of vehicle modification.

In relation to the cost of modification of a residence, there is quite a sharp divide between the parties. The divide extends to the qualifications of, and differences in expertise of, the experts nominated and questions, though delicately put, about whether witnesses might be biased.

The circumstances are such that if the Court appointed an expert it is likely that each party would appoint a shadow expert to advise then the relation to the cross-examination of the expert which the Court appoints. Were that approach taken of course it would defeat the very object of a joint-appointed and Court-appointed experts which is to reduce the costs of the litigants.

Having experienced the types of divisions that occur between experts of this particular topic in other matters, it seems to me that the interest of the parties, the rights of the parties, and the object of limiting, to the extent one is able, the cost of litigation, lies in allowing each of the parties to appoint their own single expert on the issue of household modification.

Those being my reasons, I will make orders in terms of the draft, which I now initial and place with the papers.

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