Millington v Coastal Steel Fabrications Pty Ltd
[2013] NSWSC 841
•24 June 2013
Supreme Court
New South Wales
Case Title: Millington v. Coastal Steel Fabrications Pty Ltd Medium Neutral Citation: [2013] NSWSC 841 Hearing Date(s): 24 June 2013 Decision Date: 24 June 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1)The proceedings are adjourned and the time set aside for hearing vacated.
(2)I list the proceedings for directions before me at 9.30am on 15 July 2013.
(3)I direct that matter number 2013/95068 be listed for directions before me at the same time on the same date.
(4)I direct the defendant's solicitor to notify the plaintiff's solicitors in that matter of my direction within seven days.
(5)I grant leave to the defendant to arrange medical examinations with a neurologist, a psychiatrist, and a specialist in pain management.
(6)I grant leave to the plaintiff to serve any report from Dr Fritsch, Dr Dubossarky, and Dr Spencer if so advised on or prior to 15 July 2013.
(7)I grant leave to the plaintiff to serve a report from a neurologist if so advised.
(8)I return exhibit A to the plaintiff and each court book to the party proffering it.
(9)I reserve the question of costs thrown away by reason of this adjournment.
(10)Leave to each party to arrange refresher examinations with each qualified doctor from whom a report has been served in the proceedings with a view to obtaining a supplementary report for service
Catchwords: PRACTICE AND PROCEDURE-adjournment of civil trial-late discovery of pertinent medical evidence-no question of principle Legislation Cited: Civil Procedure Act 2005
Workers Compensation Act 1987Cases Cited: NA Texts Cited: NA Category: Interlocutory applications Parties: Roy Millington (Plaintiff)
Coastal Steel Fabrications Pty Ltd (Defendant)Representation - Counsel: Counsel: L. King SC with H Chiu and
J. Lee (Plaintiff)
P. Morris SC with R. Perla
(Defendant)- Solicitors: Solicitors: Carroll & O'Dea (Plaintiff)
Moray & Agnew (Defendant)File Number(s): 2011/00403007
EX TEMPORE JUDGMENT
CAMPBELL J: Mr Millington suffered an injury on 21st August 2009 in a work accident. He was employed as a truck driver and in the course of his employment attended the first defendant's premises to pick up a load of steel which ultimately was to be delivered in Queensland. It is unnecessary for me to go into a detailed description of what happened. Suffice it to say that during the course of the loading process Mr Millington fell from the truck. The issue seems to be whether he was knocked off by an act or omission on the part of the forklift driver, the second defendant, or whether he fell because he unexpectedly put himself in harm's way.
There is no doubt that he suffered a frank injury to his right knee and, on my reading of the material with which I was provided in preparation for the hearing of the case, there is a strong body of evidence to suggest that he also suffered an injury to his left knee. Apart from a return to work for a limited time on light duties for limited hours, Mr Millington has been off work since September 2009 and has been in receipt of workers' compensation payments from his employer's insurer.
When the matter was called on for hearing before me this morning, it became apparent that fresh medical issues had arisen. When I say "fresh medical issues" I mean that the very experienced Senior Counsel involved had received instructions late in the piece which may be very material to the resolution of the quantum issues in the case. From what has been said by Mr King SC, who appears with Mr Chiu and Mr Lee for the plaintiff, and by Mr Morris SC, who appears with Mr Perla for the defendant, a significant issue, perhaps the significant issue concerning quantum, is whether all of Mr Millington's complaints and disabilities can be accounted for by the undoubted pathology in his right knee.
The way the fresh issue arose can be put fairly simply. The plaintiff had served a report from a forensic psychiatrist, Dr Klug. I am informed that this occurred towards the end of last year. In his report Dr Klug made mention of a condition of reflex sympathetic dystrophy, these days more properly referred to as chronic regional pain syndrome.
From my reading of the medical evidence that I have been given, it is clear that Dr Dave, the treating orthopaedic surgeon who carried out arthroscopic surgery on each of Mr Millington's knees, had diagnosed that condition in the weeks or months following the accident. In fact, he postponed surgery on the right knee because he regarded that condition as being contra-indicative of the surgery proposed. In the reports that I have read Dr Dave does not ever seem to have expressed a view that that condition had entirely resolved. However, one may infer that he may have had that opinion because in the early part of 2010 he proceeded to carry out the planned surgery, and also carried out surgery a little later the same year on Mr Millington's left knee.
What caught counsel by surprise is that, although Dr Klug mentioned that Mr Millington was going to see a specialist in pain management, unfortunately that circumstance seems to have slipped through the net of the otherwise experienced and diligent solicitors acting for the plaintiff. As it now transpires, his general practitioner referred Mr Millington to a Dr Dubossarsky either at the end of last year or early this year because he saw that specialist on or before 10 January 2013.
That doctor, who is a specialist in rehabilitation medicine, confirmed, as I read his report of 10 January 2013, some ongoing pathology in Mr Millington's knee. He found, for instance, a positive McMurray's test. He said that he found no signs, or symptoms, to suggest a chronic regional pain syndrome, but he did find features of allodynia and on this basis, I infer, again for present purposes, concluded that chronic pain syndrome was the appropriate diagnosis. He instituted a treatment regime augmenting prescription medication that Mr Millington had already been taking.
The first time any of the parties saw that report was just before 1pm today, when Mr King's instructing solicitor was able to have it released by Dr Dubossarsky's rooms and a copy was provided to Mr Morris.
Mr Millington has seen Dr Dubossarsky for a second time on 11th April 2013. Although he does not express clearly his diagnosis on that occasion, I infer, for present purposes only, that he continues to be of the view that Mr Millington has chronic regional pain syndrome because he has continued the previous regime, but increased the dose of a drug called Lyrica, and suggested a trial of Celebrex.
It seems to be common ground for the purpose of the present argument that if Dr Dubossarsky is correct in his diagnosis that may account for what the defendant regards as being an excess of symptoms over those that Mr Millington might reasonably be expected to suffer on the basis of the orthopaedic pathology alone.
Moreover, that diagnosis perhaps derives some support from the opinion of a specialist knee surgeon, Dr Fritsch, whom Mr Millington saw in March of this year. He expressed the view that Mr Millington's signs and symptoms are consistent with neuropathic type pain rather than true mechanical abnormality. This seems to be consistent, as I understand it, with Dr Dubossarky's opinion.
Once again, although there was mention of Dr Fritsch's report by Professor Fred Ehrlich in his report to the defendant's solicitors of April of this year, I am informed by senior counsel that neither of them nor their solicitors had actually seen it until it came to light late last week and was served by the plaintiff's solicitors last Friday.
There are other issues concerning the readiness of the case to proceed. The defendant has drawn to my attention that in the course of case management the plaintiff served a statement from Mr Wayne Blackborrow. Mr Blackborrow was the plaintiff's supervisor at the time of his accident. The expectation of the defendant had been that the plaintiff would call him in his case. That I suppose is understandable given service of the statement.
Mr King has made clear that he does not propose to call Mr Blackborrow, and the defendant is caught short in its expectation. As I remarked during the course of argument, such a change of heart, it seems to me, is no more than the fortunes of war.
I think in any event that matter may well have been curable by giving the defendant leave to short-serve a subpoena on him. I understand that enquiries have been made of him, and that he is available to come to court on Wednesday. I would have taken his evidence then, had I been of the view that the case should proceed.
Another matter not of determinative significance but relevant nonetheless is that the plaintiff's employer, through its workers compensation insurer, issued recovery proceedings in this Court under s 151Z(1) Workers Compensation Act 1987 earlier this year. I am informed that at the first directions hearing before the Registrar on 7 May 2013 the employer successfully resisted the defendant's application to have those proceedings listed for hearing concurrently with Mr Millington's proceedings. This is curious in my experience, because when there are parallel proceedings by the injured worker and his employer against a third party they are almost invariably heard together with the employer's claim riding piggy back, as it were, on the worker's claim. Some might refer to it as a parasitic action.
I should say that, apart from the emergence of the additional medical evidence, there is a very high degree of common ground between the orthopaedic surgeons who had been qualified on behalf of each of the parties. Indeed Associate Professor Ryan and Dr Rowe produced a joint report on 29th April 2013 that I must say largely supports the plaintiff's case, and discloses no differences of opinion between them. As orthopaedic surgeons they have approached the medical questions from the point of view of their speciality. They accept that there is active pathology affecting Mr Millington's knees, which is likely to slowly progress. And his condition based on that pathology renders him unfit for work of a type that he had been accustomed to perform previously. But it may be, as the defendant argues, that the joint report does not provide unqualified support for the full range of symptoms of which Mr Millington complains.
So the new evidence is of some considerable importance, especially as Mr Morris frankly informs me, that there is a significant issue as to credit, that is to say, as to the reliability of what Mr Millington says about the severity of his symptoms and resulting disabilities.
I formed the impression from the argument that both parties are of the view that the state of readiness of the case is such that it really could not sensibly continue to finality this week, even if I were to exclude the contentious material. By the contentious material, I am referring to the reports of Dr Fritsch and Dr Dubossarky, as well as any report from Dr Elizabeth Spencer, a treating psychiatrist, that might emerge over the next day or two.
As I said in argument I could not foist this fresh material upon the defendant in the circumstances of the case, even allowing for some possibility that each of those doctors could be called in the plaintiff's case to give oral evidence and for cross-examination. It seems to me that fairness requires the defendant being given the opportunity to obtain medical examinations of the plaintiff in relevant specialties, notwithstanding that Professor Ehrlich, a man of many qualifications, has excluded the validity of the idea of a neuropathic pain syndrome or condition as explanatory of the plaintiff's condition.
It also strikes me as highly artificial to proceed to determine Mr Millington's case in the absence of what is, as it has now emerged, a considerable body of treating medical opinion which can only, on the face of it, serve to strengthen his case. This body of medical evidence, it seems to me, is capable of being of great importance in the resolution of the issues in the case.
Mr King suggested that, given that I have heard an opening from each of him and Mr Morris, and I am now seised of the issues in the case, and have informed myself, as I have said more than once, by reference to the tender bundle of the parties, that I should take Mr Millington's evidence-in-chief so that the matter would be part heard, and hopefully, by that means, an earlier date for further hearing could be obtained.
Attracted as I was to that proposition, it seems to me that, on reflection, not much is to be gained by it. Given the new material, I would not compel Mr Morris to cross-examine Mr Millington, especially in circumstances where he would have to reserve his position, and forestall its completion, until he received further instructions following the additional medical examinations yet to take place.
Nor would it be fair to leave Mr Millington in a state of suspended animation, in so far as cross-examination is concerned, for what may be a period of , not months, before the hearing could resume.
I am very conscious of the efficiency provisions of s 56 to s 58 of the Civil Procedure Act2005. I am very conscious of the displacement of the cases of other litigants which occurs when a matter is fixed for hearing, which is exacerbated by an adjournment.
However, the efficiency provisions of the legislation are to be exercised for a variety of purposes, including ensuring that the real issues in the dispute are properly determined. It seems to me that an adjournment to enable the parties to obtain this important, further evidence on both sides only furthers that objective.
Moreover, as has been observed in other cases, nothing about the efficiency provisions of the legislation detracts from the fundamental obligation of the court to administer justice according to law, and frequently, even in the 21st century, that objective will require an adjournment to enable parties to obtain proper evidence known to be available.
Accordingly, I propose to adjourn these proceedings. I also propose make further directions in relation to their case management. As I indicated during the course of argument, these directions are to be taken as including the requirement that the plaintiff and defendants fully co-operate with each other in bringing the matter to full preparation as expeditiously as the circumstances will permit.
I will in due course make orders for short service of additional medical reports. I think the way things have fallen out today that all of the experienced lawyers involved in the case are now fully seised of what the issues are, and there can be very little capacity for any further surprise in the process of bringing the relevant evidence together to enable the issues to be decided.
I will not permit any expert evidence to be obtained in relation to the issue of liability. Both parties have come to hearing today without the benefit of such material. I infer from this that a decision was made that expert evidence was unnecessary in the rather straight forward circumstances of the incident giving rise to the plaintiff's injury. The adjournment will not be an occasion to go away and fully rework one's case; rather, it will be an opportunity to make up the obvious deficits that have been exposed by the debate today.
I should say that, although the defendant made complaint about Dr Klug's report, I would not have adjourned the case on the basis of his absence overseas and unavailability for cross-examination. As I have said, his report was served at the end of last year. No notice was given to the plaintiff's solicitors that he was required for cross-examination.
I accept what Mr Morris has told me, that an application was made to the registrar for leave to have the plaintiff examined by a psychiatrist on behalf of the defendant, and the Registrar, no doubt for good reasons at the time made no order. However, circumstances have changed, and I propose to permit the defendant, amongst other examinations, to have the benefit of a psychiatric examination of the plaintiff, if so advised.
For those reasons, I make the following orders:
(1) The proceedings are adjourned and the time set aside for hearing vacated.
(2) I list the proceedings for directions before me at 9.30am on 15 July 2013.
(3) I direct that matter number 2013/95068 be listed for directions before me at the same time on the same date.
(4) I direct the defendant's solicitor to notify the plaintiff's solicitors in that matter of my direction within seven days.
(5) I grant leave to the defendant to arrange medical examinations with a neurologist, a psychiatrist, and a specialist in pain management.
(6) I grant leave to the plaintiff to serve any report from Dr Fritsch, Dr Dubossarky, and Dr Spencer if so advised on or prior to 15 July 2013.
(7) I grant leave to the plaintiff to serve a report from a neurologist if so advised.
(8) I return exhibit A to the plaintiff and each court book to the party proffering it.
(9) I reserve the question of costs thrown away by reason of this adjournment.
(10) Leave to each party to arrange refresher examinations with each qualified doctor from whom a report has been served in the proceedings with a view to obtaining a supplementary report for service.
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