Traeger v Harris - [2010] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TRAEGER -v- HARRIS [2010] WADC 89

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 1 JUNE 2010

DELIVERED : Delivered Extemporaneously on 1 JUNE 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 1276 of 2009

BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant

Catchwords:

Application to vacate trial

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

Case(s) referred to in judgment(s):

Nil

PRINCIPAL REGISTRAR GETHING: The plaintiff makes application to vacate the trial of this action listed for 10 days to commence on 2 August 2010. The plaintiff's application is brought at a directions hearing which had been scheduled as part of the case management in the action. In support of the application, the plaintiff has filed affidavits by his solicitor, Mr Potter, dated 31 May 2010 and 1 June 2010.
The application takes as its context orders I made on 13 May 2010 where I allowed the defendant leave to amend his defence. A critical paragraph in the amendment was par 5 of the then defence. In its unamended form, it provided, and I quote:
"Further, if the Plaintiff suffered any injury, loss or damage, which is denied, such injury loss or damage was caused by the Plaintiff's pre-existing cognitive behavioural condition."
In its amended form as par 7, it provides:
"Further, if the Plaintiff suffered any loss or damage, which is denied, such loss or damage was caused by or contributed to by the plaintiff's pre-existing cognitive behavioural condition, ADHD, secondary behavioural dysfunction, local hypoperfusion in the left orbito-frontal cortex, multiple sociopathic behaviour traits, bilateral posterior parietal hypoperfusion, depression, alcohol addiction, alcohol and substance abuse, possible Major Depressive Disorder, possible Obsessive Compulsive Disorder and Scheuermann's disease."
In making the order on 13 May, one of the factors in consideration then was the extent to which an order in those terms might impact on the then pending trial.
As part of the balancing exercise, in the orders of 13 May, I made an order that the plaintiff have leave to adduce further expert evidence on the issues raised by any amendments. I also made an order on 13 May as part of the general case management that:
"by 28 May 2010 the defendant do provide the plaintiff with a draft index of the book of the medical evidence (including paramedical evidence such as the reports of Ms Vidovic and Ms Jodrell) the defendant then intends to tender at the trial of the action and to indicate which, if any, of the documents contained within that book the defendant seeks to have tendered at the trial of this action without the need to call the author of the document to give evidence."
In support of its application, the first point made by the plaintiff is that there are five medical reports pending. The first is from a Dr Shubb, a psychiatrist, with the appointment being on 30 June 2010. Dr Shubb is a new witness, and this is the first time the defendant has sought a medico-legal opinion on psychiatric issues. There are then updated reports from Dr Fong (the appointment being on 10 June 2010); Dr Connaughton (the appointment being on 8 June 2010); Ms Vidovic (the appointment being on 21 June 2010) and Ms Jodrell (the appointment being on 23 June 2010).
The plaintiff drew my attention to the fact that, historically at least, some of these experts have not provided their reports in a timely fashion. The plaintiff makes the point that in order for him to efficiently prepare for the trial, he needs to have the complete set of the expert evidence. Otherwise he faces the prospect of having to get responsive expert evidence in a fragmented format.
In one sense, the defendant's expert evidence is responsive to the plaintiff's case. However, in another sense, it is the primary expert evidence in relation to the issues raised in par 7 of the defence.
The key issue in whether or not the trial dates be vacated is to balance the risk of injustice between the plaintiff and the defendant.
The risk of injustice to the plaintiff is that the plaintiff will not be able to prepare responsive expert evidence in a timely fashion. In this regard, I accept the plaintiff's proposition that it is appropriate that the plaintiff have the full suite of the defendant's medical evidence, at least from this stage of reviews, before putting the evidence to its experts.
It seems to me that the critical issues to go to the experts are not so much the underlying factual history, but the opinions generated from that factual history. It is the opinions generated that are likely to be the subject of hot contest at the trial.
The other prejudice that the plaintiff puts forward is that on its current assessment, the 10 days allowed is not going to be sufficient. Counsel for the plaintiff is of the view that it is more likely to take 15, probably 20 days on the basis of the material currently before him.
The prejudice to the defendant by pushing the trial dates back is basically that he may have to incur additional costs and additional medical reviews in preparing the matter finally for trial. I can see no substantive prejudice to the defendant's case by vacating the trial dates.
It seems to me that there are two key factors here which suggest that it is appropriate to vacate the trial dates.
The first is that the defendant was not by 28 May 2010 in a position to comply with par 5 of the orders made on 13 May 2010 that it indicate which documents contained in the index to the plaintiff's book of medical evidence may be tendered at trial without the need for the author to call evidence. In a letter to the plaintiff's solicitors dated 25 May, the defendant's solicitors stated:
"We request an extension of time within which to comply with this order as we are intending to adduce further evidence, and we are concerned about the potential prejudice to the plaintiff to proceed on the basis that some of the medical practitioners will not need to be called to give evidence."
In a subsequent letter of 28 May 2010, the defendant's solicitors state:
"At this stage, we are unable to determine which other medical reports can be tendered by consent, however we anticipate that there will be others, and we will advise you as soon as possible."
It seems to me that in a trial due to take 10 days that, at this stage, if a party is not able to identify with confidence the reports that are going to be tendered by consent, that to me is an indicator that it is not ready for trial.
The second indicator is the briefing letter to Dr Kim Fong dated 31 May 2010, which is annexed to Mr Potter's affidavit of 1 June 2010. This briefing letter comprises some five pages of single spaced text. In part, I am advised by counsel for the defendant, this is based on historical material relevant to the plaintiff's medical condition which has been recently obtained by subpoena. However, it seems to me that a brief of this complexity is going to be met with an equally complex and detailed response. This then suggests to me that the nature of the responsive evidence that the plaintiff is going to need goes a lot further than merely updating the current suite of medical evidence. In particular, it goes further along two fronts. Firstly, it brings into the equation detailed historical information from the plaintiff; and secondly, it brings into play the amendments to the defence.
It seems to me that balancing the risk of injustice in light of those two factors, the appropriate order is to vacate the trial dates. The court is able to re‑list a trial, which I would provisionally allocate for at least 15 days, at various dates within October and November 2010.
It seems to me that the appropriate way to proceed in this matter is to vacate the trial dates and to stand over for further argument two issues, namely whether or not the defendant's defence complies with the orders I previously made, and the question of leave to adduce expert evidence in relation to what might be described as paramedical evidence. I will stand these issues over for a further hearing and at that hearing we can allocate trial dates.
That then leaves the issue of costs thrown away by reason of the vacation of the trial dates. I will hear from counsel on that issue.