Warner v Brisbane City Council

[2012] QDC 283

[2012] QDC 283

DISTRICT COURT

CIVIL JURISDICTION

JUDGE DEVEREAUX SC

No 1354 of 2012

STEVEN ALLAN WARNER	Plaintiff
and
BRISBANE CITY COUNCIL	Defendant

BRISBANE

..DATE 13/08/2012

JUDGMENT

CATCHWORDS
PROCEDURE - INFERIOR COURTS - QUEENSLAND - DISTRICT COURTS - CIVIL JURISDICTION - PRACTICE - PROCEDURE BEFORE TRIAL - OTHER MATTERS - where trial date expedited - where plaintiff sought leave to adduce additional medical expert evidence at trial - where there was insufficient time for defendant to obtain further opinion before trial - whether expedited trial date prevented witness being called without leave of the court

PROCEDURE - COSTS - where trial dated expedited - where plaintiff sought leave to adduce further expert evidence - where application dismissed - whether applicant had caused unreasonable delay in terms of s. 318 Workers' Compensation and Rehabilitation Act 2003

HIS HONOUR:  This is a pre-trial, perhaps a premature application for leave to adduce evidence from a neurologist, Dr Todman.  Briefly, the chronology of the proceedings is as follows:

On the 3rd of August 2010 the plaintiff got hurt when he fell at work. On the 19th of July 2011 the notice of claim for damages was filed, served. There are two orthopaedic doctors engaged by the parties, Dr Pentis for the plaintiff and Dr Boys for the defendant. On 20 March 2012 a compulsory conference was held under section 289 of the Workers' Compensation and Rehabilitation Act 2003. On 13 April 2012 the claim and statement of claim were filed, and in it the injuries pleaded in paragraph 6 are: soft tissue injury to the right shoulder; fibrous union fracture to right clavicle; soft tissue injury to back; soft tissue injury to hip; soft tissue injury to pelvis; soft tissue injury to groin region; fracture to left superior and inferior pubic rami.

The notice of intention to defend was filed on the 11th of May 2012. On 14 May 2012 a statement of loss and damage was served. The reply was filed on the 15th of May. Also on the 15th of May, upon the plaintiff's application, the Court ordered for an expedited trial in accordance with rule 468 of the Uniform Civil Procedure Rules.

The orders included that the trial be given a priority status in terms of the timetable to apply to the management of the proceedings and in the allocation of a trial.  The next order was the Court dispense with the signing of a request for a trial date.  Then, that the plaintiff provide the defendant with expert engineering report of Justin O'Sullivan by no later than 25 May 2012; that the defendant arrange for the plaintiff to be examined by a specialist to assess his kidney disease and provide a copy of the report to the plaintiff by 5 July 2012;  that the defendant is to serve the plaintiff with a copy of an expert engineering report it intends to rely on by 22 June 2012; and that the costs of the application be in the cause.

On 18 May 2012 trial dates were allocated, namely 20-22 August this year.  This was, of course, all unusual.  The normal procedure for getting trial dates was skipped.  There was no formal request for a trial date document as required by rule 467.  It is inescapable that the plaintiff represented himself to Judge Noud as being ready for trial according to rule 467(4).  After the application the plaintiff's solicitor reviewed the evidence needed for trial and obtained further advice on evidence from counsel.  The solicitor deposes to advising the defendant by email on 19 June 2012 that he intended to have the plaintiff examined by a particular neurological specialist.  By e-mail 22 June 2012 the defendant objected to the use of any further evidence.  Other correspondence followed.

The plaintiff was examined by Dr Todman on 17 July, and the plaintiff's solicitor received Dr Todman's report on 18 July and sent it by e-mail to the defendant later on the same day.  The correspondence includes notice of the plaintiff's willingness to be examined by a neurologist from a panel of three proposed by the defendant before trial.  The respondent has tried but it cannot obtain an examination of the plaintiff and a report before the trial date.

The respondent argues the attempt to call Dr Todman is in breach of rule 548(4)(c). That rule resides in part 2 of chapter 14 of the UCPR. These rules relate to personal injury and fatal accident proceedings. Rule 547 provides the plaintiff must serve on the defendant a written statement of loss and damage, signed by the plaintiff, within 28 days of the close of pleadings, and it goes on to list the details required. They include the names of doctors who have examined the plaintiff.

Rule 548 provides that the statement of loss and damage must contain certain documents.  Item 1 on the list is hospital and medical reports.  Sub rule (4) then provides,
"At the trial the defendant may call or tender evidence not identified in the plaintiff's statement of loss and damage or not given to the defendant under this part only if

(a) the evidence is called or tendered by consent; or
(b) the evidence is called or tendered in cross-examination: or
(c) the Court, for special reason, gives leave." 

The respondent argues the evidence cannot be led without establishing special reasons, and there are none.

The argument goes, certainly the receipt of counsel's advice on evidence, after setting the case for trial and perusing documents obtained by the defendant upon third party discovery, were not special reasons.  The respondent argues the plaintiff's case, so far as the nature and extent of the injury goes, is presented in the pleadings and statement of loss and damage as reliant on the orthopaedic reports.  No neurological injury is pleaded, nor is any expressly asserted for that matter, in Dr Todman's report.  Alternatively, the defendant submits that if the plaintiff is still investigating his case the plaintiff must elect to keep the trial dates and abandon reliance on Dr Todman or lose the trial dates. 

The plaintiff argues it's doubtful leave is required because no new injury is to be proved; that is, the pleadings need no amendment, and the statement of loss and damage can and would be updated.  The plaintiff argues the defendant has had notice of the intention to seek a neurological examination since June.  As a matter of precaution the application is brought so the parties know where they stand at trial.  The plaintiff also argues that the carriage of the claim since Judge Noud's orders were made has been in accordance with the spirit of the rules embodied in rule 5. The raising of a new report does not offend section 470 because it provides that after the filing of the request for a trial date a party may do certain things only with the Court's leave, namely, amend a pleading; request particulars; make an application in the proceeding.  The plaintiff submits that rule 470 is not offended because the plaintiff seeks none of those things.

Mr Trotter for the plaintiff submitted this in his written outline. "One of the reasons it is considered that the report of Dr Todman will assist the Court and the just and expeditious resolution of the real issues of the case is that the two orthopaedic specialists currently involved, Dr Boys and Dr Pentis, have entirely different views about the assessment of the injury.  Dr Boys is of the view that the pelvic injury and the lower spine injury must be treated separately, whereas Dr Pentis is of the view that the pelvic/lower spinal injury cannot be separated at all as it is part of the same region." 

It is common ground that the plaintiff suffered inter alia fractures of his pubic rami and injury to his lower back.  Because there is a spinal injury it is considered prudent to obtain the opinion of a neurologist.  Dr Todman has perhaps agreed with Dr Boys insofar as he has assessed the spinal injury only, but has left the pelvic injury to the orthopaedic specialist.

I don't propose to go to the reports in any detail but it is useful to point out these matters.  In Dr Pentis's first report he refers to tenderness in the lower lumbar region of the spine lumbar sacral, and with respect to x-ray examination, the reported fractured clavicle and fractures of the pelvis.  In his first report Dr Pentis concluded that the impairment, "Is such that it would be ascertained using 15.3 and 16.19 as a 15 per cent whole person impairment due to the fractures sustained and the decreased range of movement."  I should say that as I read that, that is an assessment of the lower body injuries.

Dr Boys made this comment in his report, "Dr Pentis would appear to have made a combined assessment relating to the pelvis and lumbar sacral spine...It is noted that this gentleman has suffered undisplaced, non-articular fractures of the pelvis which have healed.  In this context a zero per cent impairment of the whole person would be quantified, referable to the past pelvic injury.  Mr Warner could be reasonably assessed as suffering a five per cent impairment of the whole person, referrable to the lumbar spine...I believe it would be reasonable to apportion three per cent of the whole person to the effects of constitutional degenerative change within the lower spine.  A two per cent impairment of the whole person might be apportioned to the aggravation sustained to this gentleman's degenerative lower back condition in the subject fall."

In a second report Dr Pentis repeats his assessment that the fractures to the pelvis and the soft tissue injuries in that region combined with the degeneration in the lower back, which have been further aggravated by the accident, and further soft tissue injuries in the region would constitute a 15 per cent whole person impairment.  He then says, "It is difficult to completely dissociate injuries that involve the lumbar sacral region and the pelvis as it is an interacting area and the function of one depends on the functioning of the other as well, mobility, stance, balance, attachment of the musculature and ligaments."

The point made with respect to Dr Todman's report is that he clearly distinguishes between the fracture and the soft tissue injury in this sense.  He says, "The current symptoms have stabilised and are likely to represent a permanent state of affairs...That is, clinical history and examination findings are compatible with a specific history, namely, chronic musculo-ligamentous strain to the lumbar spine.  This represents an eight per cent whole person impairment which is the upper part of the range of five to eight per cent based on the level of symptoms and effects on ADLs as well as noting muscle spasm, restricted movements and reticular complaints.

"There is also an impairment referable to the pelvic fracture, but this would be in the realm of the orthopaedic surgeon, Dr Pentis.  Although there have been occasional episodes of low back pain in the past, there is no evidence of any pre‑existing condition and no discount on this impairment." 

So, in essence, the plaintiff submits that Dr Todman's report would help the Court in forming a conclusion about the otherwise disparate evidence of opinion of Doctors Pentis and Boys.

Rule 427 of the UCPR provides that subject to subrule 4, an expert may give evidence-in-chief in a proceeding only by a report. Subrule 2 provides that the report may be tendered in evidence only if the report has been disclosed as required under rule 429 or the Court gives leave. Rule 429 provides that a party intending to rely on a report must, unless the Court otherwise orders, disclose the report (a) if the party is a plaintiff, within 90 after the close of pleading. The other parts don't necessarily apply. The pleadings closed on 15 May. The report was disclosed on 18 July. So by virtue of the mechanism whereby the claim became listed for trial, the report is disclosed within the time required by rule 429, but I expect that it was never contemplated that the parties would be so close to trial within 90 days of the close of pleadings.

If these circumstances subsisted at trial and if the plaintiff required leave to adduce the evidence of Dr Todman, if I were the trial Judge I would not grant it, but I doubt the plaintiff requires leave to rely on the evidence of Dr Todman.  Still, the situation that has emerged is unsatisfactory.  Ultimately, the plaintiff submits the report of Dr Todman would assist the Court by commenting on the same facts but with the advantage of a different specialty.  It's difficult to understand what that means absent a thorough examination of the witnesses.

If Dr Todman is merely commenting on orthopaedic injuries perhaps his opinion is not admissible.  Perhaps he is adding a neurologist's view of the severity of the injuries on the basis that he is differently qualified from the orthopaedic surgeons and has some advantage over them.  Either way the plaintiff is seeking an advantage by calling a witness who is either simply adding another opinion or introducing a new specialty.  The defendant should have the opportunity to have the plaintiff examined by a neurologist if the plaintiff is to adduce the evidence of Dr Todman.  This seems to require the trial dates to be vacated.

During the hearing Mr Trotter made plain that, should I reach this view, the plaintiff would take a certain course.  I'll hear further submissions on whether I'm required to make any orders.

...

HIS HONOUR:  I'm not satisfied that I should award costs in favour of either party because I'm not satisfied that the application has been brought because of unreasonable delay.  The relevant delay argued is that of the plaintiff.  The trial, having been given its listing dates on 18 May, it was about a month later that the plaintiff's solicitor advised the defendant by e-mail that he intended to arrange for the plaintiff to be examined by a particular neurological specialist.

In the compressed timeframe of this claim there is some argument about whether that is an unreasonable delay, but I act on the deposition of the solicitor who says that following the application for setting the trial down, he undertook a further review of the evidence needed for trial and obtained a further advice on evidence from counsel, and in the circumstances I'm simply not satisfied that that amounts to an unreasonable delay of the bringing of this application.

The further context is what I've discussed during argument which is that, although the application was dismissed, there is a real sense in which it was brought for the benefit of all parties so that the parties would know their position at trial.  The application was for leave to adduce the evidence of a doctor and I at least doubt that that leave was necessary.  In fact, perhaps because of the compressed timetable, that's the case; it wasn't necessary.

In any case, the application isn’t pressed and it's to be dismissed, but I'm not satisfied there should be an order for costs, given section 318C requires an unreasonable delay by one of the parties. I am not satisfied that's made out. I won't order costs.

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