Smith v Children Australia Inc
[2022] ACTSC 310
•8 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Smith v Children Australia Inc |
Citation: | [2022] ACTSC 310 |
Hearing Date: | 4 November 2022 |
DecisionDate: | 8 November 2022 |
Before: | McCallum CJ |
Decision: | (1) That the time within which the plaintiff may serve the report of Ian Burns dated 2 September 2022 is extended to 5 September 2022. (2) The time within which the plaintiff may serve the report of Dr Camaris dated 22 August 2022 is extended to 5 September 2022. (3) Direct the plaintiff to serve any updating report of Dr Brooder or Ms Stevenson by close of business on 6 December 2022. (4) Note that that direction has been made because there is a mediation scheduled for 9 December 2022 and in circumstances where counsel for the plaintiff does not have instructions as to whether it is achievable. (5) Further note that, in the event the mediation is not successful, it would be open to the plaintiff to seek a further extension in respect of any updating report. (6) Direct the third defendant to answer the plaintiff’s interrogatories within 14 days. (7) Direct each party bear her or its own cost of the application but note that the plaintiff should be disentitled to, in the event she is successful in the proceedings, claim the costs of the two disallowed reports, the report of Dr Brooder and the report of Ms Stevenson. (8) Stand the proceedings over before McCallum CJ on Thursday 15 December 2022 at 9am. |
Catchwords: | CIVIL LAW ─ CIVIL PROCEDURE ─ Expert evidence ─ Service of expert reports ─ where the plaintiff seeks an extension of time to serve an expert report ─ where the plaintiff seeks further inspection of the place the injury is alleged to have occurred ─ whether expert reports in reply constitute new reports ─ whether the plaintiff should be permitted to serve updating expert reports |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 715, 1205, 1211, 1241, 1242 |
Cases Cited: | Pryce v Dunlap [2016] ACTSC 338 |
Texts Cited: | Practice Direction No 2 of 2014, ACT Supreme Court |
Parties: | Nicole Harding Smith ( Plaintiff) Children Australia Inc t/as Ozchild Incorporated Association ( First Defendant) Barnardos Australia (Third Defendant) |
Representation: | Counsel L Edwards ( Plaintiff) A Muller ( First Defendant) D Kelly (Third Defendant) |
| Solicitors United Legal ( Plaintiff) Hall & Wilcox ( First Defendant) Moray & Agnew Lawyers (Third Defendant) | |
File Number: | SC 22 of 2021 |
McCallum CJ:
These are proceedings for damages for personal injury allegedly caused when the plaintiff pushed hard against a locked security door which failed to open, causing her a sudden onset of sharp pain to the right wrist. The plaintiff's evidence is expected to be that she swiped her security pass over the security lock to the door and that a green light indicated that the lock mechanism had released, or would release, but that the door did not move. The first defendant was her employer. The third defendant was the tenant in control of the premises. The proceedings have been through the interlocutory processes and are now listed for hearing next April.
Last Friday, an application came before the Court brought by the plaintiff seeking an extension of the time within which to serve certain expert reports and also making an application for inspection of the door. The application is mainly opposed by both active defendants. In order to understand their opposition to the relief sought, it will be necessary to record the procedural history. Before turning to that, however, it is appropriate first to explain the statutory context in which the application falls to be determined, including the rules concerning expert reports which, of course, inform the Court's expectation of the parties as to the manner in which proceedings will be conducted.
It is appropriate at the outset to recall the terms of s 5A of the Court Procedures Act 2004 (ACT) which provides:
5A Main purpose of civil procedure provisions
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the main purpose includes the following objectives:
(a) the just resolution of the real issues in civil proceedings;
(b)the efficient use of the judicial and administrative resources available for the purposes of the court;
(c)the efficient disposal of a court’s overall caseload;
(d)the timely disposal of civil proceedings;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
It is also relevant to recall the provisions of Practice Direction 2 of 2014 which states that it was published for the purpose of facilitating “the just resolution of the real issues in proceedings with a minimum of delay and expense.” The Practice Direction contemplates that proceedings of this kind should ordinarily be brought to a state of readiness to receive a hearing date within approximately seven months after the first directions hearing, the paradigm being for the Court to hear a matter within 12 months of commencement.
It may be accepted that this is the ideal standard and that it will not always be able to be achieved. The Court must be vigilant to do justice according to the individual circumstances of a case. There will always be cases in which the expectations of the Court cannot be achieved. To force every case into those expectations would carry the risk of throwing the baby out with the bath water. It is also to be recalled that frequently in proceedings of this kind there is an imbalance of resources between an injured employee/plaintiff and an insured defendant. That said, the specific rules in relation to the provision of expert reports need to be considered in the context of the two overriding considerations to which I have referred: the provisions of s 5A of the Court Procedures Act and the content of the Practice Direction.
Rule 1205 of the Court Procedures Rules 2006 (ACT) is a broad rule which confers extensive power on the Court to control the use of experts in proceedings including by limiting the time within which expert reports are to be served and the number of experts who may be called to give evidence on an issue. Rule 1211 provides further scope to control the use of expert witnesses by empowering the Court to direct expert witnesses to meet, identify the matters on which they agree and disagree, state the reasons for any disagreement and try to resolve the disagreement. Those provisions, and like provisions in other jurisdictions, were introduced to address concern as to the duplication, expense and delay often caused by expert evidence, particularly in personal injury proceedings where experts were often polarised and, for want of a better expression, sometimes presented as guns for hire.
The powers conferred by those two rules give the Court a substantial measure of control, from which there may be implied a responsibility, to prevent the incurring of unnecessary costs and delay in personal injury proceedings.
Rule 1241 supports those powers by limiting the admissibility of an expert report that has not been served in accordance with the rule. The requirement of the rule is that each party must serve its expert reports in accordance with any direction made by the court: r 1241(1). Rule 1241(3) imposes a requirement for leave to tender any report not served in accordance with the rule (except where all active parties agree). Rule 1241(4) provides that the court “must not give leave under subrule (3) unless satisfied that there are exceptional circumstances that justify giving leave” or that the report only updates an earlier version of a report served in accordance with the rule.
As explained by Mossop J in Pryce v Dunlap [2016] ACTSC 338 at [6], r 1241(4) (which imposes the requirement to establish exceptional circumstances) speaks to the point at which a part seeks to tender the report. I respectfully agree with his Honour’s observation at [7] that:
[I]f a direction is made, for example under r 1401, then that will mean that an expert report served in accordance with such a direction is served in accordance with directions referred to in r 1241(1) and hence r 1241(3) is not triggered.
In other words, even where (as here) a previous timetable has been and gone without service of the material sought to be relied upon, it remains open to a party to seek further directions permitting the service of expert reports provided the application is brought in advance of the hearing. Once the hearing has commenced, the position will be governed by r 1241(3).
For completeness, I note that Mr Edwards, who appears for the plaintiff, also referred to r 1242 which deals with the topic of supplementary expert reports. That rule provides:
1242 Supplementary expert reports
(1) If an expert witness changes in a material way an opinion in an expert report that has been served, the expert witness must provide a supplementary expert report (a supplementary report) to the party who engaged the expert witness (the engaging party) stating the change and the reason for it.
(2) The expert witness may provide the engaging party with other supplementary reports (also a supplementary report).
(3) If an expert witness provides a supplementary report under this rule, the engaging party, and any other party having the same interest as the engaging party, must not use an earlier expert report (including an earlier supplementary report) on an issue to which the earlier report relates unless the engaging party has served a copy of the supplementary report on all active parties on whom the engaging party served the earlier report.
Whilst the language of the heading of the rule suggests that it may apply to reports in the nature of updating or responding reports (which are addressed in r 1241), an examination of the content of the rule indicates that it is rather directed to the circumstances where an expert witness changes his or her opinion before giving evidence, triggering a requirement for the party that served the report to inform others of the change of opinion by serving the supplementary report.
In summary, it is clear from a combination of the provisions and the Practice Direction to which I have referred that parties commencing proceedings for personal injury need to have turned their minds to the question of expert evidence ideally before even commencing the proceedings and certainly at an early stage. It is necessary for the parties to identify whether expert evidence is required and to seek directions from the Court as to its service at an early stage. All of that should happen, including the service of expert reports, before the listing hearing. That is because, apart from anything else, the Practice Direction contemplates that proceedings should be ready for hearing by the time they are allocated a hearing date at a listing hearing. The service of expert reports in advance of the listing hearing is also necessary to facilitate the making of any appropriate directions under r 1211 for joint conclaves of experts.
It may be observed in this context that the directions made by the Court in these proceedings, which adopted orders proposed by the parties, could have been clearer. The Court must accept some responsibility for that. In particular, the directions included a direction inserted by me, presumably at the request of the plaintiff, for her to be permitted to serve evidence “in reply” by a certain date. It may have been helpful for that direction to specify whether it encompassed evidence of the kind referred to in r 1241(2).
Against that background, I turn to the chronology of the procedural steps taken in these proceedings. The date of the plaintiff's accident was 29 June 2017. Unfortunately, and I accept that this would have made the task for the plaintiff's solicitors more difficult, they received instructions from the plaintiff only on 17 June 2020. They acted promptly to ensure the commencement of proceedings within the limitation period, filing an originating claim and statement of claim in the Magistrates Court on 24 June 2020. It can be accepted that they would not have had an opportunity within that short period to obtain any expert liability evidence.
In light of the extent of the plaintiff's injuries, the matter was transferred to this Court in February 2021 and, on 12 February 2021, directions were made by the Senior Deputy Registrar to progress the matter towards a listing hearing approximately seven months later, on 23 September 2021.
That timetable was interrupted as a result of the restrictions imposed during the COVID‑19 pandemic, which was said to have delayed some of the steps. There was also the interposition of the need for the plaintiff to have further surgery. The defendants accepted that they would need to receive further evidence about that and respond to any expert evidence dealing with it.
On 24 November 2021, there was a site inspection when a previous electrical engineer retained by the plaintiff examined the door. Thereafter, the plaintiff's solicitors made several requests for the provision of particulars in relation to the door and those were not provided.
On 21 April 2022, I made directions fixing the timetable which required the plaintiff to serve her expert liability and quantum evidence on or before 10 June 2022. Shortly after that date, perhaps prodded by remarks I had made on that occasion, the solicitors for the third defendant provided the particulars that had been sought. The plaintiff served some expert evidence on 10 June 2022 but not all of the evidence upon which she now seeks to rely.
On 17 August 2022, the plaintiff identified a potential new electrical engineer, Mr Burns, as a suitable expert. He has provided a report dated 2 September 2022, which was served on the defendants on 5 September 2022.
The first issue raised by the application is the question of Mr Burns' report. First, the plaintiff needs an extension of the time within which to serve that report. As just indicated, it was served on 5 September 2022 in circumstances where, in accordance with the timetable, it ought to have been served by 10 June 2022. The defendants opposed the service of that report simply on the basis that it was not served in accordance with the requirements of the rules to which I have referred.
The plaintiff contends that the report is necessary because liability is in dispute. So much may be accepted. As I have indicated, in an ideal world, an expert report on liability would have been obtained before the plaintiff even made a decision as to whether to commence proceedings. I am of the view that the interests of justice require that the plaintiff should be permitted to rely on the report of Mr Burns. Accordingly, I propose to extend the time for service of that report until 5 September 2022.
The second issue concerning Mr Burns is more complex. The plaintiff seeks an order under r 715 of the Court Procedures Rules authorising her and her advisers to inspect the door at the premises controlled by the third defendant. The third defendant opposes the order, principally I think because there has already been an inspection and no explanation has been put forward as to why that expert did not end up providing a report that was served by the plaintiff.
The only explanation for the failure to provide a report from the previous expert who examined the premises is that recorded in a letter dated 14 June 2022 where the plaintiff's solicitor said:
In light of your client's refusal to provide the full particulars sought in our letter dated 8 December 2021 and 22 March 2022, the plaintiff has been unable to obtain a report from its liability expert.
The explanation is inadequate. It does not enable the Court to judge whether the particulars truly constrained the provision of a report or whether, rather, the plaintiff sought to obtain a report from a different expert for other reasons.
Further, as submitted by Mr Kelly on behalf of the third defendant, there must be a real question both as to the utility of a further inspection and as to what will flow if that is permitted at this late stage. Mr Kelly noted that the prospect of a report from an expert critical of the electronic mechanism of the door might require the joinder of further parties; that is, the parties who were responsible for the preparation of or installation of the door.
Presently, the negligence case against the third defendant alleges a simple failure to provide safe access. Mr Kelly tells me that the evidence will be that this door was used hundreds of times a day without incident or problem. What the third defendant faces at the moment is therefore a case involving a generic allegation of deficiency. If that is fine-tuned into an allegation of a deficiency of the system itself, so Mr Kelly submitted, it will not be the third defendant who is responsible.
In the circumstances which I have outlined, that is, the Court's expectation in light of the statutory regime that the parties will move promptly on issues of this kind, coupled with the points made by Mr Kelly as to the doubtful utility of obtaining a further inspection and the likelihood that if it generates a further report there will be further delay, I do not think a second inspection should be authorised at this stage.
I note in that context that I recall suggesting to counsel for the plaintiff at the directions hearing on 21 April 2022 (not, I hasten to add, counsel who has appeared on the present application) that there was power under the rules for the Court to order an inspection of exactly the kind now sought. The plaintiff's representatives have, I regret to say, simply not moved promptly enough in taking these steps. I do not think that approach should be rewarded by granting them an indulgence to the detriment of the defendants.
The second issue raised by the application is the question of medical reports served late, in one instance under the guise of being a report in reply permitted by an earlier direction made by me on 21 April 2022. The reports in question are, first, a report of Dr Ron Brooder, consultant neurologist, and secondly, a report of an occupational therapist, Ms Stephenson, dated 5 September 2022.
In each instance, the complaint in short is that, whereas those reports are characterised by the plaintiff as being either in reply or merely refresher reports of the kind permitted by r 1241(2), they are in substance completely new reports. During argument at the hearing of the application, I asked Mr Kelly what was new, my purpose being to ascertain whether there was any real prejudice to the defendants. He answered that that was indeed the point: that in order to ascertain what was new, the defendants would in effect have to start all over again, working out what opinions were expressed against them and how to respond to them.
Mr Kelly submitted, and I accept, that there is a real possibility that acceptance of the reports at this stage would require the defendants to make fresh appointments for the examination of the plaintiff which, although the hearing is still some months away, is likely to prove difficult in the current circumstances of the medical profession, which is still playing catch up after the COVID-19 pandemic.
I accept that there is real prejudice and detriment to the service of the main object of the civil procedure provisions in allowing the new reports at this stage. I note, however, that the rules permit the Court to order an expert who has provided more than one report to consolidate the report into a single report. Further, as already indicated, the rules permit the service of what is properly an update of a previous report.
In my view, in order to achieve a fair balance between the interests of the plaintiff and the potential prejudice to the defendant, the plaintiff should be permitted to serve a further single report of each of Dr Brooder and Ms Stephenson, which is properly framed as an updating report off the back of their respective previous reports.
I make the following orders:
(1) The time within which the plaintiff may serve the report of Ian Burns dated 2 September 2022 is extended to 5 September 2022.
(2) The time within which the plaintiff may serve the report of Dr Camaris dated 22 August 2022 is extended to 5 September 2022.
(3) Direct the plaintiff to serve any updating report of Dr Brooder or Ms Stevenson by close of business on 6 December 2022.
(4) Note that that direction has been made because there is a mediation scheduled for 9 December 2022 and in circumstances where counsel for the plaintiff does not have instructions as to whether it is achievable.
(5) Further note that, in the event the mediation is not successful, it would be open to the plaintiff to seek a further extension in respect of any updating report.
(6) Direct the third defendant to answer the plaintiff’s interrogatories within 14 days.
(7) Direct that each party bear her or its own cost of the application but note that the plaintiff should be disentitled, in the event she is successful in the proceedings, to claim the costs of the two disallowed reports, the report of Dr Brooder and the report of Ms Stevenson.
(8) Stand the proceedings over before McCallum CJ on Thursday 15 December 2022 at 9am.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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