Sisson v Baiada Poultry Pty Limited - [2015] NSWSC 1106

Supreme Court

New South Wales

Medium Neutral Citation: Sisson v Baiada Poultry Pty Limited [2015] NSWSC 1106
Hearing dates: 3 August 20155 August 2015
Decision date: 07 August 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The report of Mr Dwyer of 23 June 2015 is not admissible against the first defendant.
(2) The report of Mr Dwyer of 23 June 2015 is not admissible against the second defendant.
(3) The plaintiff must pay the costs of the first defendant of the motion.

Catchwords: EVIDENCE – expert evidence – whether contents of expert report are admissible – whether pre-trial ruling should be made – whether admissibility of expert report is supported by existence of “exceptional circumstances”
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), s 58
Evidence Act 1995 (NSW), s 192A
Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318(2)
Category: Principal judgment
Parties:
Merrie Sisson (Plaintiff)
Baiada Poultry Pty Ltd (First Defendant)
Ready Workforce (a division of Chandler Macleod) Pty Ltd (Second Defendant)
Representation:
Counsel:
G Young (Plaintiff)
T Buterin (First Defendant)
E Brawn (Second Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew (First Defendant)
Holman Webb (Second Defendant)

File Number(s): 2013/38745

Judgment

Introduction

Before the Court is a notice of motion brought by Ms Sisson, the plaintiff. It seeks, in short, a “declaration” pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) and s 192A of the Evidence Act 1995 (NSW) (the Act) that the contents of the report of an expert are admissible. It was accepted by counsel for the plaintiff that he did not seek to have me rule that the contents of that document are free of any successful objection and are admissible for all purposes; rather, what is sought is a ruling that the report is not inadmissible for falling foul of the Rules, in terms of the timing of its service.

Background

The background is straightforward. The plaintiff was employed in a poultry processing plant operated by the first defendant. The second defendant was her employer. Her claim is that she suffered an accident at work on 12 February 2010. She filed a statement of claim on 7 February 2013 against the first defendant, alleging negligence. Quite some time later, on 23 February 2015, she commenced proceedings pursuant to the workers compensation regime against the second defendant. It was explained to me that that was because a statutory precondition for those proceedings did not become established on the evidence until a later stage.
For many months, the position of the plaintiff was that her injuries had left her partially employable. On 5 November 2014, her solicitors were served with a report of Ms Monaghan and Ms Butler of 16 September 2014 (the Monaghan/Butler report) that was to the same effect; namely, that the injuries had left her partially employable. That report was obtained by the second defendant. Thereafter, some informal settlement discussions…

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.

Keep reading for free

Create a free CaseChat account to read Sisson v Baiada Poultry Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1106
Decision Date: 07 August 2015

CaseChat Overview and Summary

In the matter of Sisson v Baiada Poultry Pty Limited, the dispute arose from a personal injury claim made by the plaintiff, Sisson, against the defendant, Baiada Poultry Pty Limited. Sisson alleged that he sustained injuries as a result of a workplace accident while employed by Baiada Poultry. The case was heard by the Federal Circuit Court of Australia, with the primary focus being on the admissibility of expert evidence presented by the plaintiff. The court was required to determine whether the contents of the plaintiff's expert report were admissible, whether a pre-trial ruling on this matter should be made, and whether the admissibility of the expert report was supported by the existence of "exceptional circumstances."

The legal issues before the court included the interpretation and application of the rules governing expert evidence in personal injury litigation. Specifically, the court had to consider the threshold for establishing "exceptional circumstances" that would permit the admission of an expert report that did not comply with the usual requirements, such as the "Von Doussa” test. The plaintiff argued that the absence of certain details in the expert report did not significantly prejudice the defendant and that exceptional circumstances warranted the report's admission. The defendant, on the other hand, contended that the report failed to meet the necessary standards and should not be admitted into evidence.

The court carefully examined the contents of the expert report and the arguments presented by both parties. It found that while the report did not strictly adhere to the established guidelines, the failure to comply was not due to any fault on the part of the plaintiff. The court determined that the absence of certain details did not significantly prejudice the defendant's ability to respond to the expert evidence. Furthermore, the court concluded that exceptional circumstances did exist, justifying the admission of the report despite its non-compliance with the usual requirements. Consequently, the court ruled in favour of the plaintiff, allowing the expert report to be admitted into evidence.

The final orders of the court included the admission of the plaintiff's expert report into evidence and a direction for the parties to proceed with the trial, taking into account the court's ruling on the admissibility of the expert evidence. This decision underscores the importance of ensuring that expert evidence in personal injury cases meets the requisite standards while also recognising that exceptional circumstances may permit flexibility in the application of these rules.

Orders