Smith v Workers' Compensation Nominal Insurer

[2015] NSWSC 376

Supreme Court

New South Wales

Medium Neutral Citation:	Smith v Workers’ Compensation Nominal Insurer [2015] NSWSC 376
Hearing dates:	2 April 2015
Date of orders:	02 April 2015
Decision date:	02 April 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I make the following orders under rule 31.26 Uniform Civil Procedure Rules 2005 (NSW): I grant leave to the cross defendant to lead evidence at the trial from Mr Burchett and Ms Farag notwithstanding that their evidence will touch upon issues that will be dealt with in the joint report of the medical practitioners. I direct that Dr Warwick Stening, neurosurgeon, participate in the conference between Professor Higgs, orthopaedic surgeon, and Dr Mullens, Orthopaedic Surgeon. I direct that experts confer by telephone and produce a joint report by close of business on 13 April 2015. I list the matter at 9 am on Tuesday 14 April 2015 to check the readiness of the parties to proceed to trial on 4 May 2015. Costs of today are costs in the cause.
Catchwords:	PROCEDURE – civil – case management – impact of r 31.26 UCPR on expert evidence of expert’s not part of joint report
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Jimmy Smith (AKA Jamal Zreika) (plaintiff); The Workers’ Compensation Nominal Insurer (defendant)
Representation:	Counsel: N. Galanopoulos (Plaintiff) P. Nathan (Defendant) R. Quigley (Cross Defendant) Solicitors: Drexler & Partners (Plaintiff) Moray & Agnew (Defendant) Gadens Lawyers (Cross Defendant)
File Number(s):	2013/129446

EX TeMPORE Judgment (REVISED)

1. This matter was referred by the Common Law Registrar for directions in relation to the expert conclave which is overdue. This is a personal injuries case. The case against the defendant is purely a case for work injury damages and there is a cross claim against another contractor on the building site.

2. There are five experts going to quantum, two orthopaedic surgeons and one neurosurgeon. In addition, there is a vocational psychologist, Mr Burchett, and a qualified physiotherapist, Ms Farag who has undertaken what is commonly referred to as a vocational assessment of the plaintiff. That has been organised by the cross defendant. The cross defendant is anxious that if the doctors confer and the vocational experts are left out of it, then their evidence will not be admissible except by leave by virtue of 31.26(5) Uniform Civil Procedure Rules 2005 (NSW) which provides:

Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.

3. This application is made to get some guidance from the court in advance of the trial so the cross defendant is not left in the position where it shows up for the hearing and the trial judge excludes the evidence of Mr Burchett and Ms Farag. Neither of the other parties objects, as I understand it.

4. I am in advance of the trial granting leave to the cross defendant to lead

5. that evidence at the trial notwithstanding it will touch upon an issue which will be dealt with in the joint report and I propose to make such a direction or order.

6. As I have said, there were two orthopaedic surgeons and one neurosurgeon, Dr Warwick Stening. Again he is the cross defendant’s medical champion and it has not been proposed so far that he would confer with his orthopaedic colleagues on the basis that different areas of expertise were involved.

7. All of the questions which have been agreed upon by the parties for submission to the experts in conference relate to pre-injury and post injury fitness for work which is, obviously, the central issue in terms of assessing the plaintiff’s entitlement to work injury damages. It seems to me, that at that level of generality, the relevant level of expertise is not orthopaedic or neurosurgery but simply medicine. It seems to me that there is no reason why Dr Stening should be excluded from a conference of experts and I will make a direction that he participates.

8. For the reasons I have expressed, I make the following orders under rule 31.26(5) UCPR.

1. I grant leave to the cross defendant to lead evidence at the trial from Mr Burchett and Ms Farag notwithstanding that their evidence will touch upon issues that will be dealt with in the joint report of the medical practitioners.

2. I direct that Dr Warwick Stening, neurosurgeon, participate in the conference between Professor Higgs, orthopaedic surgeon, and Dr Mullens, Orthopaedic Surgeon.

3. I direct that experts confer by telephone and produce a joint report by close of business on 13 April 2015.

4. I list the matter at 9 am on Tuesday 14 April 2015 to check the readiness of the parties to proceed to trial on 4 May 2015.

5. Costs of today are costs in the cause.

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Decision last updated: 07 April 2015