Warren v District Council of the Lower Eyre Peninsula (No 2) - [2022] SADC 88

District Court of South Australia
(Civil: Interlocutory Application)
WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 2)
[2022] SADC 88
Reasons for Decision of his Honour Judge Burnett (ex tempore)
27 July 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TRIAL
This is an application by the respondent seeking leave under r 74.3(3) of the Uniform Civil Rules (UCR) to adduce the report of a Professor Alais at trial. Leave was required because the respondent had not obtained the report within seven days of the closing of pleadings as required by r 74.3(2) of the UCR and had obtained the report after the matter had been set down for trial (r 151.12 of the UCR).
The applicant’s claim relates to personal injuries he suffered when he fell 10 metres from cliffs near Greenly Beach Rock Pools on Eyre Peninsula. The applicant claims that the respondent was negligent in failing to erect signs at, what he alleges, was a car park from which the rock pools are accessed, warning of the danger of the cliff and failing to erect barriers that would have prevented or warned the applicant of the danger.
The trial commenced in a limited way in February 2022 when a view was held over two days at sites near Port Lincoln. A mini-opening was made by the applicant so as to be able to understand the locations that were visited on the view, including the site of the incident. The trial is due to re-commence on 22 August 2022, with two weeks set aside, when evidence as to liability will be held. The Court has made orders that all lay evidence be heard before expert evidence.
The expert report of Professor Alais was entirely responsive to an expert report obtained by the applicant.
The applicant opposed the application.
Held:
1. Granting the application and giving leave to the respondent to adduce the evidence of Professor Alais at trial.
2. The application fell to be decided in accordance with the principles set out in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 as elaborated by the Full Court in Channel Seven Adelaide Pty Ltd v Mannock [2010] SASCFC 59 and by Doyle J in PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307 and Stanley J in Saadat v Commonwealth of Australia [2019] SASC 28.
3. The Alais report related to a central issue at trial and provided a basis, if accepted, for the Court to reject the opinions expressed in the report obtained by the applicant. The Alais report was also entirely responsive to the applicant’s expert report and did not raise further issues. The obtaining of the report would not cause the trial to be vacated. These matters favoured the granting of leave.
4. Matters that favoured the refusal of leave include the delay in obtaining the report, the lack of a good explanation for the delay (other than a reconsideration by the respondent’s lawyers of the need for a report) and the prejudice suffered by the applicant. That prejudice was asserted to be the inability to point out matters on the view and the delay in the applicant being able to obtain an expert report in reply. This prejudice was not significant. As the Alais report was responsive, relevant matters were pointed out on the view. Photographs and drone footage taken on the view were the only evidence relied upon by Professor Alais and therefore his opinions could be tested upon cross-examination. Any delay by the applicant in obtaining a report in reply was likely to have only a minimal effect, if any, on the trial.
5. The just resolution of the proceedings requires the respondent to be permitted to rely on the Alais report at trial.
Uniform Civil Rules 2020 (SA) rr 1.5, 74, 151.12, 173.1, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Channel 7 Adelaide Pty Ltd v Manock [2010] SASCFC 59; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Saadat v Commonwealth of Australia [2019] SASC 28; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, considered.

WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 2)
[2022] SADC 88
Introduction

By interlocutory application dated 19 July 2022, the respondent has sought leave to file an expert report of Professor David Alais dated 25 June 2022. As counsel for the applicant has pointed out in her oral submissions, the application is more properly made under r 74.3(4) of the Uniform Civil Rules 2020 (UCR), namely that the respondent be given leave to adduce at trial the evidence of the report of Professor Alais.
The parties agreed that nothing turned on that point. The respondent needs leave because it would otherwise be prohibited from adducing the evidence at trial by reason of rr 74.3(4) and 151.12 of the UCR. Rule 151.12 of the UCR requires leave to be obtained before a new expert report, obtained after the matter was set down for trial, can be relied upon at trial.
The application is supported by the affidavit of Alexander Bubner sworn 19 July 2022.
The applicant opposes the application and relies on the second affidavit of Elise May Walter sworn 22 July 2022.
I heard argument on the application yesterday afternoon, 26 July 2022. Because of the close proximity to trial and the fact that my ruling may have consequences for the parties' preparation for trial, I consider that I should deliver oral reasons as soon as possible. In reaching my decision, I have had regard to the written and oral submissions of the applicant and the oral submissions of the respondent.
Background
I set out some background to the application.
The applicant has brought a claim for personal injuries arising out of an incident that occurred on 18 December 2013.
On that day the applicant fell metres from a cliff, which is situated at what the applicant described as the bottom of a sand dune, to the rock pools below. The applicant claims that the fall was caused by the negligence and wrongful act of the respondent, including the respondent failing to warn the applicant of the danger, and failing to cordon the sand dune by erecting guards or barriers from what is described as the car park to the sand dune.
The relevant timetable of procedural matters is set out in the affidavit of Ms Walter in paragraphs 3 to 8, and relevantly comprises the following:
1.On 3 July 2020 the Court ordered that the matter proceed to trial on the question of liability alone.
2.Pleadings closed on 18 November 2021 when the respondent filed revision 4 of the defence. Therefore, under r 74.3 of the UCR, any expert report was required to be served within seven days of the close of pleadings.
3.The matter was listed for trial on 3 December 2021. On that day the Court ordered that the matter be adjourned to 4 February 2022 for trial, with the trial to continue on 10 February 2022 and 11 February 2022, when a view was to be conducted. The trial date of 4 February was set for the applicant's mini opening and any mini opening that the respondent may make, being limited to matters relevant to the view and the site of the incident. It was not envisaged that the trial would proceed, on 4 February beyond the opening, except for the view.
4.The date of 4 February was later amended to 9 February 2022 for counsel for the applicant to make a mini opening prior to the Court travelling to Port Lincoln to view the incident site.
5.The trial commenced on 9 February by way of opening of the applicant, but as I said, in a limited way so that the Court could understand the view which was to take place on the following days.
6.The view took place at a number of locations outside of Port Lincoln on 10 February and 11 February, including the site of the incident.
7.No witnesses were called in the February hearings.
8.Following the view, at a hearing on 9 March 2022, the Court ordered that the trial on liability continue for two weeks, commencing on 22 August 2022.
9.The applicant has filed and obtained a number of expert reports from Melissa Mellen and Professor Coyle. The reports from Ms Mellen were obtained in December 2020 and September 2021 and February 2022. Ms Mellen is a civil traffic and transport expert.
10.In her first report, Ms Mellen addressed issues such as what risk assessments should be carried out and what engineering requirements there were for the car park, and whether a safe path had been provided to the rock pools. In her second report, she responded to the report that had been obtained by the respondent from Mr Verco dated 1 June 2020. The respondent also provided a further report of Mr Verco. The third report of Ms Mellen, dated February 2022, dealt with further information in relation to the classification, construction and maintenance of Greenly Beach Road. That report arose out of a letter from Wallmans dated 10 December 2021, and further particulars provided by Wallmans, solicitors for the respondent, on that date.
11.More relevantly to this application, the applicant has also obtained reports from Professor Coyle dated 2 October 2020 and 15 August 2021.
12.The respondent has now sought an extension of time to serve the report of Professor Alais, which is responding to the report of Professor Coyle. Wallmans, solicitors for the respondent (and have been solicitors throughout the course of these proceedings), sent a letter to Professor Alais dated 10 May 2022 in which they sought his report. They provided that letter of instruction to the applicant's solicitors on 12 May 2022.
13.The applicant's solicitors responded by letter dated 18 May 2022 in which they stated that, pursuant to rr 74.3(1) and 74.3(2) of the UCR, the expert report was required to be served on them within seven days of the close of pleadings. Rule 74.3(2) of the UCR provides that if a party intends to adduce expert evidence at trial the party must by the due date, that is seven days after the close of pleadings, obtain an expert report. The applicant therefore advised the respondent that it was objecting to any attempt by the respondent to rely upon the expert report at trial. The letter from the applicant's solicitors went on to place reliance on r 173.1 of the UCR, which provides that the Court may exclude evidence at trial if a party has failed to comply with the requirement to give notice of the evidence imposed by, or by an order made under, r 74.3 of the UCR.
I note that r 74.3(4) of the UCR provides that:
If a party wishes to adduce evidence at trial of which notice should have been, but was not given, the party must obtain leave of the Court.
14.The respondent replied by letter dated 2 June 2022 in which it said through its solicitors that:
a)      they intended to rely upon the report, and seek leave of the Court to serve the report and adduce evidence of the report at trial;
b)     the report was in response to Professor Coyle's report of 2 October 2020 and was limited to those matters;
c)      the decision to seek the report was made as a result of matters arising at the view;
d)     obtaining of the report was delayed in that (a) the respondent's solicitor obtained COVID-19, (b) junior counsel left to go to the judiciary, and (c) Professor Alais was overseas.
The letter went on to state that there was no prejudice to the applicant. The letter submitted that there would be substantial prejudice to the respondent if the report could not be relied upon.
The applicant responded by letter dated 10 June 2022 in which they:
a)set out the procedural history and said that the respondent had proffered no good reason for the late expert report, and referred to r 74.3 to which I've already referred, and also r 151.12;
b)the view was completed, and the applicant will not be able to point out matters to the Court on the view;
c)there was insufficient time to obtain evidence in response to Professor Alais' report. There was less than, at that time, 12 weeks to the recommencement of the trial.
The report of Professor Alais was obtained and served on 24 June 2022.
Nature of Report
Before determining the application, it is necessary to consider the nature of the report of Professor Alais and what it seeks to do. The report responds to certain opinions expressed by Professor Coyle. The letter of instruction provided to Professor Alais and the report itself is limited to responding to those opinions of Professor Coyle.
Professor Alais relied on the matters enclosed with his letter of instruction, including a book of documents containing some 275 photographic images of the incident location with its surrounding areas and environment and related aerial footage from a drone. Professor Alais did not attend the incident location.
At paragraph 7 of his report, Professor Coyle claimed that the photographs with which he was provided illustrated a path that was contiguous with a graded car park. Professor Coyle then stated it was down this path that the applicant ran and was unable to stop before falling over the cliff at the end of the path. He stated that there were no visual clues to enable a naive visitor to the location proceeding down the path to see they were approaching a cliff before they were literally in a position to fall off the same.
Professor Alais contested the conclusions of Professor Coyle that:
1.There was something that could be described as a path or even a track;
2.There was a graded parking area.
Professor Alais referred to certain photographs in relation to his conclusion that it was not a path or a graded car park.
Professor Alais also contested the opinion that there were no visible clues that someone who was proceeding down the 'path' would perceive that there were approaching a cliff. Professor Alais referred to primary depth cues and optical cues. I pause here to observe that the nine visual cues referred to were discussed by Professor Alais, by reference to photograph 83 which was described as a gap between bushes where the applicant attempted to access the beach from the car park. That gap between the bushes was something pointed out to the Court on the view.
Professor Alais then responded to Professor Coyle's opinion at paragraph 12 of the report of the decision by the respondent to accept the Coastal Management Plan. Professor Coyle stated in his report that the decision to create the path and/or leave it in situ when the car park was graded and the failure to inform visitors by way of appropriate warning signs or failure to place a barrier, were violations or knowledge-based mistakes.
Professor Alais responded by repeating his denial that there was a path and also referred to a number of photographs and drone footage. Professor Alais also denied there was a car park and referred to four photographs in support of his conclusion.
At paragraph 35 of his report, Professor Coyle stated that apart from environmental factors which led to the belief that it was safe to run down the path, the lack of visual cues to enable the applicant to perceive that he was running into danger were pivotal.
Professor Alais stated that in reaching this decision Professor Coyle relied on outdated research. He further rejected the claim that there were environmental factors which led to the belief on the part of the applicant that it was safe to run down the path. He referred back to the nine visual cues that he said were present, which I have mentioned previously.
Professor Coyle stated that in paragraph 36 of his report that, given the precipitous nature of the drop-off and the complete absence of visual cues, it was clear that even at a moderate running speed, the applicant would not be able to perceive that he was running into danger and react in time.
Professor Alais repeated his denial of the opinion that there was a complete absence of visual cues. He further stated that it strained credibility to say that the applicant had no knowledge that he was running into danger. No further photographs were referred to by him in answering the opinion of Professor Coyle.
Professor Alais responded to the opinion of Professor Coyle in paragraph 38 of his report that at a bare minimum, pictograms of warning signs relating to the fall to the cliff should have been installed at the entrance to the path.
Professor Alais provided his opinion that there was no path and said that, if there was no path, it became moot as to where a sign should be placed. He further referred to the fact that a sign can be installed at regular intervals along the entire coastline where the beach is backed by steep slopes and even sheer cliffs. He further posed the question what would the signs indicate that was not already evident. Professor Alais also commented on the statement of Professor Coyle that the overwhelming majority of young male population would respond to simple pictograms indicating danger cliff. No further photographs were referred to by Professor Alais in responding to this opinion of Professor Coyle.
Professor Alais also responded to the statement of Professor Coyle in paragraph 44 of his report that the appropriate way to design and then place warning signs would have a very significant likelihood of reducing the prospect of tourists proceeding into danger. Professor Alais disagreed with the claim that most people would be expected to take reasonable and appropriate care when advancing through the terrain. No further photographs were referred to in this opinion.
Professor Alais also responded to the statements in Professor Coyle's report about one of the group, with whom the applicant was with on the day of the incident, was able to stop in time before going over the cliff and, further, the opinion of Professor Coyle, that defective signs do result in significant change in risk-taking behaviour.
This analysis of the report of Professor Alais confirms that it is entirely responsive to the report of Professor Coyle. The Alais report is commenting on the opinions of Professor Coyle and stating why they are wrong. The Alais report does not refer to any other evidence in relation to the sites other than some, few in number, photographs and on one occasion some drone footage.
Professor Coyle has already referred to the evidence in support of his opinion relating to matters such as the nature of the path, environmental cues and the nature of the car park. The same evidence will be used by him to refute the opinions of Professor Alais.
Legal Principle
In my opinion the application of the respondent falls to be decided in accordance with the principles of Aon Risk Services Australia Ltd v Australian National University.[1]
[1] (2009) 239 CLR 175.
Although Aon concerned a case that involved an amendment that would cause an adjournment and vacation of the trial, in my opinion it applies equally to cases where a party has failed to comply with a requirement under a rule and is now seeking dispensation from that rule or an extension of time to comply with the rule, particularly where that revision may cause the adjournment or disruption of a trial or some other prejudice to the other party.
Rule 1.5 of the UCR provides that the object of the rules is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of issues in proceeding that have governed by the rules.
In Aon, French CJ held at [24] that:
… Undue delay can undermine confidence in the rule of law. To that extent it's avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but which transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates or adjourn trials …

At [25], French CJ held that:
Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, ‘so far as possible and subject to overriding consideration of justice’, that the limited resources which the State commits to the administration of justice are not wasted by the failure of the parties to adhere to trial dates of which they had proper notice …
At [29], French CJ referred to Queensland v JL Holdings Pty Ltd[2] and the statement that the case management is not an end in itself. In JL Holdings, the Court went on to say that:
Case management … is an important useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supply at that aim.
[2] (1997) 189 CLR 146.
At [30], French CJ went on to say:
It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The plurality, Gummow, Hayne, Crennan, Kiefel and Bell JJ held at [99] that:
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution …
In Aon Risk Services Australia Ltd v Australian National University, the High Court emphasised an application that will, if granted, result in the vacation of a trial date, should be determined in a broader context which also considers first, the efficient use of public resources and the effect on the Court and other litigants for trial dates vacated; second, the public interest in the administration of justice; third, the prejudice to the other party goes beyond matters of costs and cannot be compensated merely for an order for costs and fourthly, the effect on other litigants if Court time is wasted and hearings vacated.
The Full Court of this State in Channel 7Adelaide Pty Ltd v Manock[3] held following Aon, that the relevant principles in deciding whether to permit an amendment that would result in an adjournment of a trial were as follows:
[3] [2010] SASCFC 59.
a)Whether there has been undue delay making the application.
b)The extent to which there will be wasted public resources in granting the amendment.
c)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes.
d)Whether a trial date will need to be vacated or a trial adjourned.
e)Whether there is satisfactory reason for the delay in applying.
f)Whether the points to be raised in the amendment could be raised in any event for trial.
g)The likelihood of strain and uncertainty being imposed on the litigants.
h)Whether any further delay would undermine confidence in the administration of civil justice.
i)Any other prejudice likely to be suffered by the other party.
j)The additional costs likely to be incurred.
Justice Doyle in PPG Development Pty Ltd v Capitanio[4] held that the High Court has now made it plain in exercising any discretion on an application to amend the Court must take into account a number of factors. These overlap with the matters referred to by Bleby J in Channel 7Adelaide Pty Ltd v Manock but were expressed by Doyle J in the following terms:
[4] (2016) 126 SASR 307.
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public’s confidence in the just and efficient administration of justice.
Stanley J in Saadat v Commonwealth of Australia[5] considered a late application to amend a statement of claim and at the same time the late application to rely upon the expert reports of Dr Raeside and Dr Flynn. That application was made on 21 January 2019 in respect of a trial that was commencing on 11 February 2019. Leave was granted ultimately to file an amended statement of claim and the plaintiff in that case was also granted leave to rely on the report of Dr Raeside. Leave was refused to rely on the report of Dr Flynn.
[5] [2019] SASC 28.
Stanley J considered the Aon principles as explained in Channel 7Adelaide Pty Ltd v Manock and Doyle J in PPG.
I consider that I should determine this application in accordance with that approach and consider the matter in light of Aon and also the matters considered by Bleby J and Channel 7 and Doyle J in PPG.
I should exercise my discretion as to whether or not to grant the application of the respondent by reference to those matters.
I have considered the following:
·Nature and importance of the report
Although ultimately it cannot be determined until after trial the importance of the expert report of Professor Alais, it is clear that it goes to the central issues that are in dispute in the action. As such I consider it important to the defence of the respondent. I accept the submission of senior counsel for the respondent to that effect. The report if accepted, provides a basis for the Court to reject the opinions of Professor Coyle. On the other hand Professor Coyle's report, if accepted, provides evidence which the Court might use to find that the respondent was negligent.
·The merits of the report
Again, that is a matter that can be tested only at trial. For the purpose of this application, I am satisfied that the expert report raises matters that are arguable and tenable. No submission was made to the contrary.
·The stage of the litigation and the impact and disruption caused by the late provision of the report
There will obviously be an impact on the applicant by the provision of the report. The matters addressed in the report will need to be considered and refuted by the applicant and likely a report in reply obtained from Professor Coyle. I consider, however, that the applicant has sufficient time from the receipt of the report on 24 June 2022 and from this date, today, 27 July 2022, to consider, digest and assess the report before the resumption of the trial. I am conscious, as counsel for the applicant submitted, that the report has been provided after the trial commenced. However no evidence has been called from witnesses and the trial commenced in February only for the purpose of the applicant making a limited opening so that the view could be understood, and then the view itself held.
·Explanation for the application and the delay in providing the report
There has been considerable delay by the respondent in obtaining the report. The report should have been obtained in November 2021, seven days after the pleadings closed. It was in fact not obtained until 24 June 2022, some seven months later. I accept that the rules are designed to promote the just, efficient, timely, cost-effective and proportionate resolution of proceedings and refer to the decision of Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd.[6] However, as Doyle J emphasised, the interests of justice remain paramount and a punitive response to a late application such as this is not appropriate. I refer to the comments of French CJ in Aon.
[6] (2020) 137 SASR 117.
The report was provided after the matter was set down for trial and therefore, as the applicant submitted, leave is required to adduce evidence of the report at trial pursuant to r 151.12 of the UCR. As counsel for the applicant submitted, the application could have been made earlier. I do not accept that it should have been made on 10 May 2022 when instructions were given to Professor Alais to obtain a report, as until the report was obtained, the prejudice to the applicant could not be ascertained. Certainly the application could and should have been made shortly after 24 June 2022 when the report was obtained.
Senior counsel for the respondent conceded, as the affidavit evidence stated, that the respondent had made a forensic decision not to obtain a report in response to the report of Professor Coyle. The respondent had taken the view that the report of Professor Coyle could be dealt with by way of objection to that report. That evidence and submission provides an explanation, but it is not a matter that supports the exercise of the discretion in favour of the respondent, and in fact is a reason why the application might be rejected.
As Doyle J held in PPG, and adopted by Stanley J in Saadat, the Court should not be too willing to permit amendments, or in this case an extension of time or indulgence, simply as a result of a more detailed consideration being given to an issue by a party's legal representative. This was not a case where the report was obtained because of new information or new documents.
·Sufficient earlier opportunity to obtain the report
It is self-evident that the respondent could have obtained the report at an earlier time and at a time in accordance with the rules. Although the respondent submitted that the report relied upon photographs and drone footage taken of the view, the same observations could have been made had the expert visited the incident site at an earlier point of time.
·Time, cost and inconvenience associated with the delay or disruption
I do not consider that the order sought will cause a delay or disruption of the trial. Orders have been made that all lay witnesses be heard from both parties before expert evidence is heard. Even if Professor Coyle cannot respond to the report prior to the trial commencing, and noting that the Alais report was only responsive to his report, any delay in hearing that final evidence from these two experts is likely to be minimal. In the context of the overall costs of the matter I do not consider these costs to be significant. Likewise, any time delay is also likely to be minimal. There will be a cost in obtaining a responsive report from Professor Coyle, but that would have been incurred in any event if the report had been provided in accordance with the rules.
·The uncertainty and strain of litigation
I do not consider that the provision of the report will cause the trial to be vacated. At most it will cause what I consider to be a minor delay in the hearing of the expert evidence of Professor Coyle and Professor Alais. Any further strain on the applicant I therefore consider to be relatively minor. The incident occurred many years ago and the proceedings were commenced in 2017.
·Impact upon judicial and court resources
In my opinion the impact of judicial and court resources is likely to be minimal, if any. There is no reason, and no submission was made, that the evidence from the lay witnesses from both sides could not be heard, nor the expert evidence from Ms Mellen or Mr Verco. Even if Professor Coyle cannot provide a responsive report by the time that he is due to give evidence, the loss of court time is likely to be minimal. In this regard I note that an order has already been made that he be permitted to give evidence by audiovisual link.
·Impact upon public confidence in efficient administration of justice
As Stanley J held in Saadat at [32], citing Doyle J in PPG:
… delay and disruption not only impact the public … they also serve to undermine public confidence in the ability of the courts to administer justice in an efficient manner when the courts are seen to acquiesce in that delay and disruption …
In the present case I do not consider that there will be relevant delay or disruption to the proceeding for the reasons that I have already expressed. I therefore do not consider that public confidence in the administration of justice will be affected if permission is granted to the respondent to adduce evidence of the latest report.
·Is there further inefficiency caused by the need to revisit interlocutory processes?
In my opinion, other than obtaining leave to adduce evidence of the report in this application, there is no need to revisit other interlocutory processes. No submission was made that any such revision was necessary.
·Vacation of the trial date
For the reasons that I have already expressed, I do not consider that it will be necessary to vacate the trial date. No submission was made that the trial date would need to be vacated.
·Prejudice to the applicant
In the written and oral submissions, counsel for the applicant submitted that the applicant would suffer two forms of prejudice if the respondent were permitted to rely on the Alais report. First, the applicant referred to prejudice in not being able to point out matters to the Court on the view that might be relevant to the opinions expressed by Professor Alais and therefore assisting in refuting the opinions that he expressed in his report. The applicant submitted that the view was conducted on the basis of the evidence that existed at that time and that it would have been helpful to be aware of the visual cues at the time of the view. Second, the applicant referred to the fact that, according to the affidavit of Ms Walter, Professor Coyle will not be able to produce a responsive report prior to the trial commencing.
I have considered both of these matters. I accept that there will be some prejudice to the applicant in not being able to point to matters arising from the report of Professor Alais to the Court on the view, however, I do not consider that prejudice to be significant. That is because of the nature of the report of Professor Alais, and the nature of his conclusions. His report is responsive. Professor Alais says that there was not a path, there was not a graded car park and that there were visual cues to indicate the harsh drop to the cliff.
These opinions are the opposite to the opinions expressed by Professor Coyle. It could therefore be expected that the Court's attention was directed to the relevant matters to observe. I note also that Professor Alais had set out the photographs which he says support his opinion. The basis for the observation that he says supports his opinions is thereby identified and can be tested. I therefore do not accept that the applicant has suffered irredeemable prejudice because of his failure to be able to refer to Professor Alais' observations as to the view.
I note that this is not a case where the respondent itself had the benefit of being able to point these matters to the court on the view as it had not obtained or even instructed Professor Alais at that time. I note also that the photographs are available and will be tendered at trial.
In relation to the prejudice if the applicant is not able to obtain a responding report from Professor Coyle before the trial resumes, I do not consider that prejudice is significant. There was no suggestion or submission, nor can I see that it would be the case, that any responsive report is necessary in relation to the examination or cross-examination of lay witnesses.
Professor Coyle has already expressed his opinion on the matters which are disputed by Professor Alais. The report will only be needed when Professor Coyle and Professor Alais are required to give evidence. That is not likely to be before towards the end of the second week if at that time. There is no evidence that Professor Coyle's responsive report would not be available by that time.
I have weighed up all of the considerations that I have expressed above. I consider that the just resolution of the proceedings requires that the respondent be permitted to adduce evidence of the report of Professor Alais. In coming to this conclusion I consider the importance of the report to the respondent's defence of the claim and the nature of the report that is that it is only responsive to the report of Professor Coyle and responds only to the opinions of Professor Coyle are matters that favour the granting of permission.
In relation to the latter point I accept the submission from the respondent that this is not a case where the report raises new issues that have not been considered before. Professor Coyle has already considered these issues, therefore there is not a new body of material for the experts to consider.
For the reasons that I have expressed I do not consider that the trial will need to be vacated, interlocutory processes to be revisited, or that public confidence in the administration of justice or the impact of judicial and court resources or the uncertainty or strain of litigation will be affected by the granting of permission.
I take into account the fact that there has been delay in obtaining the report, that the reason for that delay does not arise from any new material but simply a reconsideration of the position of the respondent. Although I accept that that reconsideration was genuine I consider these factors go against the granting of leave. Also going against the granting of leave is the prejudice suffered by the applicant that I have described above, although I do not consider that to be significant. I also take into account the fact that the trial has already commenced; however, no evidence has been heard nor was any contemplated to be heard at this stage.
There is no suggestion that the trial needs to be vacated. There will be some additional cost to the applicant which I have taken into account. Taking all these matters into account I consider that the interests of justice require the granting of leave to the respondent to adduce the evidence of Professor Alais at trial.
I note the submission of the applicant that the respondent should not be rewarded by weighing in its favour the disruptive consequences of its own applications. I have not done so. Any disruption is a matter which I consider to be weighing in favour of the applicant I therefore order that the respondent have leave to adduce the evidence of Professor Alais at trial.

I order that the respondent pay the costs of the applicant in relation to the application dated 19 July 2022, and the hearing of argument on that application.
I make that order because the respondent is seeking an indulgence of the Court. The applicant’s opposition to the application was appropriate, even if not ultimately successful.