Schofield v Serenity 5 Pty Ltd - [2017] NSWSC 1168

Supreme Court

New South Wales

Medium Neutral Citation: Schofield v Serenity 5 Pty Ltd [2017] NSWSC 1168
Hearing dates: 31 August 2017
Date of orders: 31 August 2017
Decision date: 01 September 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Leave to rely on expert reports granted.
Hearing dates vacated.
Parties to confer as to a further timetable and as to the appropriate costs order.

Catchwords: PROCEDURE – personal injury – notice of motion – expert reports – order sought for expert reports to be excluded from being admitted at the hearing and in the alternative, the hearing be vacated – Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – exceptional circumstances – leave sought to rely on expert reports granted – hearing dates vacated – costs – reasons
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ho v Professional Services Review Committee No 295 [2007] FCA 388
Oreb v Willcock (2005) 146 FCR 237; [2005] FCAFC 196
San v Rumble (No 2) [2007] NSWCA 259
Category: Procedural and other rulings
Parties: Phillip Stanley Schofield (Plaintiff)
Serenity 5 Pty Ltd (Defendant)
Representation:
Counsel:
Mr SE McCarthy, counsel (Plaintiff)
Mr N Polin SC (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2014/371744
Publication restriction: None

Judgment

Mr Schofield suffered serious injury to both of his shoulders when he slipped and fell in a supermarket at Bondi in August 2013. He has since had five surgeries to his shoulders, most recently in August 2016. He will require further surgery. Breach of duty has been admitted. The matter is listed for hearing in November 2017. The parties have engaged orthopaedic and psychiatric experts, who have produced joint reports. A joint report from accounting experts is imminent. Mr Schofield had also served a 15 August 2016 report from Dr Ting, an occupational therapist, which was considered by the joint experts.
On 10 April 2017 Registrar Bradford made orders in preparation for the November hearing, which required the expert conclaves to be conducted, with joint reports be issued to by 16 June, for Mr Sutton to serve refresher medical evidence by 30 June and the defendant to serve such evidence by 31 August.
On 31 July 2017 without prior notice or application to the Court, Mr Schofield served a report of Dr Dias, a consultant occupational physician.
Practice Note SC CL 5 deals with expert evidence called in personal injury actions. It identifies the Court’s concern at the number of experts qualified and called, whose opinions may be overlapping and the time, cost and delay involved. It is provided at clause 34 of the Practice Note that the number of expert witnesses giving evidence on behalf of a party shall be limited to “one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that…

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.

Continue reading Schofield v Serenity 5 Pty Ltd

Details

AGLC: Schofield v Serenity 5 Pty Ltd [2017] NSWSC 1168
Case: [2017] NSWSC 1168
Decision Date: 01 September 2017

CaseChat Overview and Summary

The matter before the court involved a personal injury claim by the plaintiff against the defendant. The plaintiff alleged that they had suffered personal injury as a result of a car accident. The case was being heard in the Local Court of New South Wales. The defendant applied for an order to exclude expert reports from being admitted at the hearing and, in the alternative, for the hearing to be vacated. The basis of the application was Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that expert evidence may only be adduced if the evidence is necessary to resolve an issue in the proceeding.

The court had to determine whether the defendant's application was made in accordance with the requirements of Rule 31.28 and whether exceptional circumstances existed that warranted the exclusion of the expert reports or the vacation of the hearing. The court had to consider the relevance and necessity of the expert reports to the issues in dispute and whether the defendant's delay in seeking to exclude the reports or vacate the hearing constituted exceptional circumstances.

The court found that the defendant's application was made in accordance with the requirements of Rule 31.28. However, the court found that the expert reports were necessary to resolve the issues in dispute and that the defendant's delay in seeking to exclude the reports or vacate the hearing did not constitute exceptional circumstances. The court noted that the defendant had been aware of the need for expert evidence for some time and had not sought to exclude the reports or vacate the hearing until shortly before the hearing. The court found that the defendant's delay was not excusable and that the expert reports should be admitted at the hearing. The court vacated the hearing dates and ordered that the parties bear their own costs of the application.

The court's decision highlights the importance of timely and diligent conduct in personal injury cases. The court found that the defendant's delay in seeking to exclude the expert reports or vacate the hearing did not constitute exceptional circumstances and that the expert reports should be admitted at the hearing. The court's decision also emphasises the importance of ensuring that all necessary evidence is adduced at the hearing to resolve the issues in dispute. The court's decision serves as a reminder to parties in personal injury cases to act promptly and diligently to ensure that the proceedings are conducted in an efficient and effective manner.

Orders