Smith v Children Australia Inc - [2022] ACTSC 310

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…

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 Smith v Children Australia Inc

Details

AGLC: Smith v Children Australia Inc [2022] ACTSC 310
Case: [2022] ACTSC 310
Decision Date: 8 November 2022

CaseChat Overview and Summary

Smith, the plaintiff, brought an action against Children Australia Inc, the defendant, alleging negligence in circumstances that resulted in personal injury. The plaintiff sought an extension of time to serve expert reports and requested further inspection of the location where the injury occurred. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the plaintiff should be granted an extension to serve expert reports, whether the expert reports in reply constituted new reports, and if the plaintiff should be permitted to serve updated expert reports.

The primary legal issue before the court was whether the plaintiff should be granted an extension to serve expert reports. The plaintiff argued that the reports were not ready due to the need for further inspection of the site of the injury. The court considered the necessity for the inspection and the potential impact on the preparation of the reports. Additionally, the court had to determine if the expert reports in reply should be considered new reports, which would require the plaintiff to serve updated reports. The court weighed the plaintiff's need for further inspection against the defendant's right to a fair trial and the potential delay in the proceedings.

The court granted the plaintiff an extension to serve the expert reports, noting that the inspection was necessary to ensure the accuracy of the reports. The court ruled that the expert reports in reply did not constitute new reports, and therefore, the plaintiff was not required to serve updated reports. The court directed the plaintiff to serve any updating reports by a specified date, considering the upcoming mediation. The court also directed the third defendant to answer the plaintiff's interrogatories within 14 days and noted that each party should bear their own costs of the application. The proceedings were stood over for further hearing.

The final orders of the court included an extension of time for the plaintiff to serve the expert reports, a direction for the plaintiff to serve any updating reports by a specific date, a direction for the third defendant to answer the plaintiff's interrogatories within 14 days, and a note that each party should bear their own costs of the application. The court also noted that the plaintiff should be disentitled to claim the costs of the two disallowed reports if she was successful in the proceedings. The proceedings were stood over for further hearing on a specified date.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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