Yacoub v Pilkington (Australia) Ltd

[2007] NSWCA 290

New South Wales

Court of Appeal

CITATION:	Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
HEARING DATE(S):	4 September 2007
JUDGMENT DATE:	23 October 2007
JUDGMENT OF:	Tobias JA at 1; Campbell JA at 2; Handley AJA at 78
DECISION:	(1) Appeal allowed.; (2) Set aside the orders made in the District Court on 27 September 2006 concerning this matter.; (3) Remit the matter to the District Court of New South Wales for a new trial on all issues, and for determination of how the costs previously incurred in the proceedings in the District Court should be borne.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951 if qualified.
CATCHWORDS:	WORKERS’ COMPENSATION – workplace injury – shoulder injury – manufacture of laminate glass – whether overuse of shoulder in course of employment materially contributed to injury – occupational overuse syndrome – where safety problem foreseen by employer - APPEAL AND NEW TRIAL – appeal from District Court to Court of Appeal – appeal by way of rehearing – where no evidence to justify finding of fact made by trial judge – where erroneous finding of fact critical to determination of matter – miscarriage of justice – requirement for new trial - EVIDENCE – witnesses – expert evidence – District Court – expert’s report – where Respondent served expert’s report on Appellant – where Respondent did not tender expert’s report in proceedings – where Appellant sought to tender expert’s report – where expert witness not available for cross-examination – where tender of expert’s report by Appellant rejected by trial judge – whether failure to accept tender of report involved an error that caused miscarriage of justice – modification of general law of evidence relating to expert’s reports by rules of court – preconditions for admissibility of expert’s report – “back-serving” of expert’s reports – Uniform Civil Procedure Rules 2005, Pt 31 Div 2, rr 31.17, 31.18, 31.19 – District Court Practice Note (Civil) number 1 - PRACTICE AND PROCEDURE – expert’s reports – rules of court relating to use of expert’s reports - WORDS AND PHRASES – “exceptional circumstances”
LEGISLATION CITED:	Civil Procedure Act 2005 Suitors Fund Act 1951 Uniform Civil Procedure Rules 2005
CASES CITED:	Awa v Independent News Auckland [1996] 2 NZLR 184 Ho v Professional Services Review Committee No 295 [2007] FCA 388 Nasr v State of New South Wales [2007] NSWCA 101 R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 R v Kelly (Edward) [2000] 1 QB 198 San v Rumble (No 2) (2007) NSWCA 259 Tory v Megna [2007] NSWCA 13
PARTIES:	Mourice Yacoub - Appellant Pilkington (Australia) Limited - Respondent
FILE NUMBER(S):	CA 40639/06
COUNSEL:	S Norton SC; E Welsh - Appellant J W Dodd - Respondent
SOLICITORS:	Brydens Law Office, Liverpool - Appellant Hunt & Hunt, Eastwood - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	5363/04
LOWER COURT JUDICIAL OFFICER:	Boulton ADCJ
LOWER COURT DATE OF DECISION:	27 September 2006

CA 40639/06
DC 5363/04

TOBIAS JA
CAMPBELL JA
HANDLEY AJA

23 OCTOBER 2007

MOURICE YACOUB v PILKINGTON (AUSTRALIA) LIMITED

Judgment

1 TOBIAS JA: I agree with Campbell JA.

2 CAMPBELL JA: The Appellant is a right-handed process worker. He injured his right shoulder on 23 April 2002 while working at a factory operated by the Respondent. On 27 September 2006 his Honour Acting Judge Boulton dismissed the Appellant’s claim for damages for personal injury.

The Circumstances of the Appellant’s Injury

3 The Appellant had been working in the “white room” at the Respondent’s factory since 18 March 2002. The work on which he was engaged involved being one of a team of four workers that carried out two stages of a process for the manufacture of laminated glass. A motorised roller table runs the length of this room. Any object placed on the table is slowly transported from one end of the table to the other. The four workers divide into two pairs. One pair works at the end of the roller table from which the glass starts its travel, called the feeder end. The other pair works at the other end. The pair located at the feeder end uses machinery to create a sandwich comprising a lower pane of glass, a sheet of thin vinyl laminating material slightly larger than the pane of glass, and an upper pane of glass the same size as the lower pane.

4 The primary judge described the next stage of the process as follows:

“The combined sheet of glass and vinyl interlay then passed on rollers to the second pair of workers, one on either side of the production line. This task was twofold and it seems that it needed to be accomplished within about 45-47 seconds as the sheet moved along the rollers. In the event of a breakage or an emergency the line could be stopped.
Firstly the top sheet of glass had to be aligned manually with the bottom sheet. This was done by each of the workers at opposite corners grasping the corner of the top sheet of glass and ‘flapping’ it to catch a cushion of air under the sheet which could then be moved into position. When this was done each worker took a trimming stick. This was an aluminium stick with a rubber handle at one end and a single edged razor blade fitted to the tip at an angle. This was drawn along the top edge of the glass with the protruding razor blade then passing along the face to the required depth to cut the vinyl. Each worker did half of the leading edge, the side nearest him and then the half of the trailing edge.”

5 The trial judge further described the process:

“Mr Adams [ergonomic expert called by the plaintiff] describes the weight of the stick as ‘less than half a kilogram’. This was a hollow aluminium tube and when in use the tip was in contact with the edge of the glass, the tube itself being held over the glass surface. This is best illustrated in Photograph 7 where the operator is holding the tube beyond the glass edge to draw the razor blade through the vinyl. The resistance to that movement would be minimal. The operation no doubt called for a steady hand but the duration of each of the cuts could not have exceeded a matter of seconds.”

6 He also found:

“The workers did an eight hour shift with a meal break after 4 hours and a ‘smoko’ break in the middle of the second four hour period. It was standard for them to swap ends at the meal break so that those setting up the sheets moved to do the manual alignment/trimming and vice versa.”

7 On the day of the injury the Appellant was working a 2.30 pm to 11.00 pm shift. For the first half of the shift he performed the procedure at the feeder end of the roller table. After the 6.30 pm to 7.00 pm break, he began the manual aligning and trimming task. The trial judge accepted that he sustained a partial tear in the supraspinatus tendon in the right shoulder while he was engaged in trimming the excess vinyl on the leading edge of one of the glass “sandwiches”.

The Time of Injury

8 The judge found that the Appellant was injured at 8:10 pm. No shred of evidence justifies this finding, and the trial judge gave no reason for making it.

9 The Appellant’s evidence, on which he was not cross-examined, was that the injury occurred in the following way:

“Q. Can you remember how far you had to reach across the sheet to cut it?
A. I remember just reaching forward like really low and pulling back fast.
Q. How much force did you have to use when you pulled back?
A. Oh bit of – a lot of force.
Q. And what did you feel?
A. I felt this bad pinch on my right shoulder.
Q. When you say a bad pinch can you just indicate where it was that you felt it?
A. I felt it like just all here.
Q. You’re just indicating there round the top of your shoulder?
A Yep just felt this sharp pain.”

10 He said that thereupon he stopped working and reported his pain to the supervisor.

11 The Appellant (whose recollection of detail concerning the day in question did not seem, from the transcript, to be particularly good) also gave evidence that:

“… soon as I got there I just started doing the trimming for few hours and then the injury happened. …
Q. Can you remember about what time of the evening your accident happened?
A. I think it was – would’ve been 7 o’clock something from memory.”

When cross-examined about that evidence, the substance of his answer was that he could not remember “the times and everything that day” but that it was written somewhere.

12 Later in the cross-examination the following evidence was given:

“Q. Started at seven on the trimming end of the conveyor is what I’m suggesting to you and that you worked there, the glass being processed that night, sorry you reported the pain in your right shoulder at about quarter to 9, so you did it for about an hour and three quarters up until when you got the pain in your shoulder?
A. Yeah, that would’ve been probably right yeah.”

The question of the time at which the incident had occurred was not thereafter returned to in the oral evidence.

13 On the evening of the accident, the Appellant completed a compensation claim form. It put the time of injury as being 8:50 pm, and the time at which he stopped work due to the injury as also being 8:50 pm. It identified the supervisor to whom the Appellant reported the accident as being Mr Shane Ernshaw. Mr Ernshaw was not called as a witness.

14 Another form, an employer’s report of injury form, was also completed, and signed by a director of the Respondent. It also identified the time of injury as being 8:50 pm. The form appeared to be one prepared for an insurer, and so was the type of document concerning which care would ordinarily be taken.

15 The Appellant called as an expert witness Mr Neil Adams, who had qualifications and experience in ergonomics. The history recorded by Mr Adams was that it was at approximately 8:50 pm that the Appellant “suddenly became aware of what he described as a painful pinching sensation in his right shoulder.”

16 The Appellant’s work was carried out under the supervision of an operations manager. At the trial, counsel for the Respondent conceded that a Mr Glen Scott had been employed by the Respondent in that position at the relevant time, and was in court during the hearing. Mr Scott did not give evidence.

17 In these circumstances, the only conclusion reasonably open on the evidence was that, within the margin of error that always exists when the time of an event is later reported on, the incident occurred at 8:45 pm or 8:50 pm.

Relevance of the Time of Injury

18 One of the ways in which the Appellant put his case was that his injury was materially contributed to by overuse of the shoulder in the course of his work for the Respondent. The time at which the injury occurred was an important element in that case.

19 The Respondent had brought into existence a document dated 18 June 1999 that identified each of the steps involved in the work performed by the team of which the Appellant was a member. For each of those steps, the document identified safety problems that were foreseen, and stated the control measure to be taken to avoid that safety problem. Concerning the trimming operation, it identified a safety problem of “strain from trimming smaller sizes”. It identified the control measure as being “rotate tasks with other operators to reduce the risk of strain”. It also said specifically:

“If glass width is less than 2000 mm wide, operators should rotate tasks every block (ie approximately 35 laminates) or 30 minutes, to avoid repetitive stresses from reaching etc.”

20 The Respondent maintained production records relating to the production in the ‘white room”. From that record one can see that on 23 April 2002, in the afternoon shift, various different types of laminated glass were produced. It shows that in the period between 8:00 pm and 8:45 pm 77 sheets of laminated glass, each 2,140 mm long and 920 mm wide, were produced.

21 The trial judge held that this time sheet,

“… would suggest that narrow sheets of 920 mm were being trimmed at the time and that the Plaintiff had been doing this for 10 minutes when injured at 8.10 pm.”

22 Later, the trial judge returned to this topic:

“The time records for the entire shift during which the plaintiff was injured – part of Exhibit M – reveal that glass of width less than 2000mm was passed down the line on four occasions during the shift. The duration for each occasion was 30 minutes (1530-1600), 30 minutes (1800-1830), 45 minutes (2000-2300) and 40 minutes (2220-2300). The Plaintiff was not involved in trimming on the first two occasions which occurred in the first half of the shift or in the last two except for the ten minute period from 2000-2010 when he was injured. It is possible if not likely that that particular run was delayed somewhat by his injury. Excessive duration of trimming the narrower glass is not available as a cause of the Plaintiff’s injury.”

23 The numerals in brackets immediately following “45 minutes” clearly involve a mistranscription from the production record, and should read “(2000-2045)”.

24 Later in his judgment, the trial judge said:

“At page 3 of his Report, Exhibit B, Mr Adams mentions factors associated with Occupational Overuse Syndrome (OOS).
(i) Very frequent and repetitious use of the one set of movements over an extended period of time.
(ii) Maintaining stressful statistically loaded postures for considerable proportions of working time.
(iii) Having repeatedly to use considerable force in a movement or set of movements that are frequently made.
(iv) Being psychologically or physically predisposed in the sense of having a high susceptibility to such a disorder.
As far as the trimming part of the operation is concerned in the present case, (i), (ii) and (iii) are not present and (iv) almost certainly applies.”

25 From these passages, it is apparent that the trial judge’s finding that the injury occurred at 8:10 pm played a critical role in his conclusion that excessive duration of trimming of the narrower glass was not available as a cause of the Appellant’s injury. If, however, the Appellant suffered the sharp pain in his shoulder at 8:45 pm or 8:50 pm, as the evidence suggests, the incident would have occurred immediately after the Appellant had been engaged in an activity – trimming narrow glass for more than 30 minutes, and trimming more than 35 pieces of narrow glass successively – that was contrary to the Respondent’s own safety standard.

26 As already mentioned, the primary judge found that the Appellant sustained a partial tear in the supraspinatus tendon in the right shoulder, and that that injury occurred while he was trimming the excess vinyl on the leading edge of a slab of glass.

27 The report of Mr Adams postulated that the Appellant’s

“… injuries had been developing as a result of cumulative damage caused by his performance over time of work that involved the repeated exertion of significant forces after adopting and maintaining an undesirable posture (ie reaching forwards across a roller table to quite considerable horizontal distances), as opposed to being solely attributable to a single instance of the particular force exertion task that he was performing on 23 April 2003 when he first experienced debilitating pain in his right shoulder.”

28 He cited from Biomechanics in Ergonomics, edited by Shrawan Kumar, Taylor and Francis, 1999:

“A number of cross-sectional and case studies have shown that various disorders were caused in neck and shoulder regions by increased muscle contraction. Onishi et al (1976) reported shoulder muscle tenderness and Bjelle et al, (1979, 1981) and Hagberg (1984) showed degenerative tendonitis of the rotator cuff tendons and chronic myalga due to such exertions. Similarly, neck and shoulder pain and tense necks were reported due to exertion (Herberts and Kadefors, 1976; Hunting et al, 1981; Kukkonen et al, 1983; Kumar and Scaife 1979). Other conditions have also been reported associated with exertion, such as supraspinatus tendonitis, myofascial syndrome and cervicobracial disorders (Hagberg and Kvarnström, 1984; Herberts et al, 1984; Sällström and Schmidt, 1984), and neck and shoulder regional muscle disorders (Blader et al, 1987; Fine et al, 1986, 1970; Westgaard et al, 1986). The argument of association is supported by the observation that when muscle and joint loads were reduced or eliminated the incidence of severity of neck and shoulder disorders also decreased (Hagberg, 1984; Westgaard and Aaras, 1984; Westgaard, et al 1986).
The rapid increase of upper limb repetitive strain injury (RSI) or cumulative trauma disorders (CTD) has been largely attributed to the loads of posture (Armstrong, 1986), force levels (Armstrong et al, 1982; Silverstein, 1986), and repetition of posture and/or force application (Hymovich and Lyndholm, 1966; Kaplan, 1983; Silverstein et al, 1986). All three factors which have been reported to be causally associated, cause exertion of the structures. Awkward, fixed, constrained or deviated postures can overload the muscles, ligaments and tendons and also load the joints in an asymmetrical manner.”

Mr Adams considered in some detail the physical movements involved in the ordinary course of the work that the Appellant performed.

29 Having identified characteristics of the work that the Appellant performed, Mr Adams continued:

“Each of the preceding features of the work is included within the various risk factors that were referred to in Section 2 as potential contributory factors to the development of cumulative trauma-type injuries. The combination of those characteristics in the work that Mr Yacoub performed would have exposed him to a cumulatively high risk of developing injury, with the components of his lower and upper back, his shoulders, and his dominant right shoulder in particular, being the most likely loci for any such injury. The combinations of these risk factors would have resulted in his being exposed to a very significant likelihood of developing injury in those components of his musculo-skeletal system, even though many of the individual forces that he exerted during his working day were relatively small (eg lifting tools that each weighed less than 0.5 kg).”

30 He also stated:

“On the basis of the preceding analysis, I am able quite firmly to conclude that the performance of the task in which Mr Yacoub was engaged at the material time had the potential to impose excessive stresses cumulatively on his musculo-skeletal system. The magnitude of those excessive stresses could well have been considerably above a level that is accepted as being potentially injurious to workers. Mr Yacoub had performed that task on many (literally thousands) of previous occasions, and could well have been developing that injury on a cumulative basis over the period of his employment as an operator in the white room, although I would note that he indicated that he had been aware of tiredness and discomfort, rather than significant pain, prior to the injury occurrence.
Quite clearly, the work that Mr Yacoub performed – work that entailed each of the three task-demand causation factors that are listed in Section 2 as being associated with the development of OOS-type injury, and which frequently required the exertion of quite significant forces – placed excessive demands on his musculo-skeletal system, and exposed him to a very significant risk of developing injuries.”

31 Mr Adams’ report also identified what he said were reasonable preventative actions available that could have significantly reduced the Appellant’s exposure to the risk of injury.

32 Mr Adams’ conclusion concerning causation was:

“On ergonomic grounds I can readily accept that Mr Yacoub sustained injury as a result of the forces imposed on him during the incident that is described in Section 3.1 of this report, quite probably in combination with his cumulative exposure to the risk factors associated with his repeated and rapid performance of the work that is also described and analysed in this report. The ergonomic evaluation performed in Section 4 of this report demonstrates that the work would have imposed cumulatively quite severe and potentially injurious stresses upon his musculoskeletal system – stresses of a kind that are known to lead to injury.
I would regard the cumulative physical stresses inherent in the total workload, including the significant amount [of] lifting that Mr Yacoub performed at excessive horizontal distances from his body, the high rates of significant force exertions that he sustained over long periods of time, as well as the necessity for him to maintain static loading when undertaking a significant proportion of that work, as the primary or proximal causes of the injuries that he sustained/developed.
Among the more fundamental or distal causes, I would emphasise the apparent failure of both the site controller and his employer to have implemented an appropriate (and required) manual handling risk management process to identify and control any risks inherent in the work, together with the ensuing failure to have implemented any reasonable preventative or ameliorative actions, such as those suggested in Section 5 of this report. In particular, I would draw attention to the failure to ensure that he was not required to life any objects from the excessive horizontal distances that were clearly required in the work that I observed.”

33 Mr Adams’ opinion was vigorously challenged in cross-examination. One element of the challenge was that various medical opinions that had been obtained concerning the Appellant gave a diagnosis that made no mention of occupational overuse syndrome or cumulative trauma. The cross-examiner put various of these diagnoses to Mr Adams, and continued:

“Q. … They are not consistent with your main thrust of your reports regarding occupational overuse syndrome and cumulative trauma, that’s correct isn’t it?
A. I wouldn’t say they’re inconsistent. They just don’t recognise the possible contribution of the previous exposure to those forces.”

34 The trial judge ultimately rejected Mr Adams’ opinion, saying:

“Mr Adams’ thesis that the Plaintiff’s shoulder injury was caused by heavy lifting away from the body or by occupational overuse are unpersuasive. The most likely explanation was posture where the Plaintiff was severely restricted. I will come to medical reports of Dr Giblin and Dr Salmon from the time before his accident which described him being in a parlous state.”

35 Immediately prior to reaching that conclusion, the trial judge had given some reasons for rejecting a view that Mr Adams had put forward that the element of the Appellant’s work task that involved lifting the corner of the top sheet of glass to align it imposed significant forces. However, the only reason he gave for rejecting the possibility that the shoulder injury was caused by occupational overuse involved in the trimming activities is that set out at paras [21]-[24] above. It is not possible for this Court to be confident that the trial judge’s rejection of Mr Adams’ view that occupational overuse was a contributing cause was not affected by his mistaken view that the injury occurred at 8:10 pm.

36 Mr Dodd, counsel for the Respondent, submitted that even if there had been an error in the trial judge’s identification of the time of the injury, and his identification of the time of the injury was an integral part of his reasoning process in rejecting the Appellant’s claim, there should still not be an order made for a new trial. That submission was based upon a detailed analysis of the medical evidence in the case. Mr Adams, both in his report and in cross-examination, made clear that he did not have medical training, and that he would defer to medical opinion concerning the diagnosis of the Appellant’s condition. Mr Dodd submitted, in substance, that analysis of all the medical reports showed that doctors had identified various departures from normality in various of the Appellant’s bodily structures, but that no doctor had identified the Appellant as suffering from any condition identified by the doctor as caused by occupational overuse. Solely for the purposes of the present argument, and without making a final decision concerning it, I shall accept that characterisation of the medical evidence. Even so, Mr Adams’ report, considered by itself, contains material on the basis of which it may be open to a trial judge to conclude that overuse, of a kind for which the Respondent is responsible in tort, was a cause of damage to the Appellant. There is no medical evidence that says explicitly that overuse was not a cause of damage to the Appellant. The focus of the medical reports was (understandably) identification of the medical problems from which the Appellant suffers, and considering what, if anything, could be done to alleviate those problems. Whether the medical problems, or any of them, resulted from overuse of a bodily part in the course of working at the Respondent’s premises was not a topic with which the medical reports were immediately concerned. As well, some of the reports appear to associate bodily deficiencies of the Appellant (other than having a torn supraspinatus tendon) with the work done for the Respondent. In those circumstances, having considered the evidence below for myself, I am not in a situation where I can be satisfied that the decision reached by the trial judge was the correct one: cf Tory v Megna [2007] NSWCA 13 at [45]-[46]; Nasr v State of New South Wales [2007] NSWCA 101 at [25]-[27]. Thus the trial process has miscarried, and a new trial is necessary.

37 Ms Norton SC, counsel for the Appellant, accepts that if there is to be a new trial, it would need to be a new trial on all issues. That concession is correctly made. The Appellant had been injured on two occasions before the incident that is the subject of the present litigation. He also sustained another injury after the incident that is the subject of the present litigation. If, at a new trial, a judge finds that the Respondent has breached a duty of care it owed to the Appellant, and thereby caused the Appellant damage, it will be necessary for the precise findings concerning that breach to be used in then disentangling the extent to which the Appellant’s physical and psychiatric condition from time to time since the incident is a consequence of that particular breach of duty, rather than of other injuries he has sustained.

Rejection of Ms Whitby’s Report

38 Mr Adams had prepared a report dated 10 February 2006. The Respondent engaged its own expert in ergonomics, Ms Louise Whitby, to provide a report. She prepared a report dated 7 August 2006. It gave Ms Whitby’s own observations and analysis concerning the tasks the Appellant had been performing, and responded to Mr Adams’ report. The Appellant sought to tender Ms Whitby’s report, but the trial judge refused to accept the tender of the report. The Appellant contends that the circumstances of rejection of that tender, involved error on the part of the trial judge.

39 Ms Whitby’s report was not read by the trial judge before he refused to permit its tender. It was placed before this Court without objection.

Content of Ms Whitby’s Report

40 Though the report’s ultimate conclusion is favourable to the Respondent, it contains some matters consistent with the Appellant’s case. In particular, it includes statements that:

“… some aspects of the work, such as trimming, do involve adverse postures affecting the shoulder.”

41 It contained the statement, presumably derived from instructions, that “teams rotate regularly among themselves – the team actually determines the rotation, not management”.

42 The report also included a copy of an accident investigation and report form, produced by the Respondent, that identified the “time of occurrence” as 8:50 pm, and the “time reported” as 8:50 pm. It confirms that the incident happened at the time the 920 mm-wide glass was being produced, that the blade on the cutting tool did not get stuck on the glass or the vinyl, and that the rollers did not obstruct movement of the blade.

43 Ms Whitby concluded:

“Specifically in relation to the work of the shoulder, my analysis would indicate that the trimming work was bordering on being high risk activity. However, as the work involved regular team-managed rotation to tasks that did not involve full arm extension, or other adverse shoulder postures, then I consider the risk to be somewhat lower ie moderate.”

Events in the Litigation Concerning Ms Whitby’s Report

44 Ms Whitby’s report was served on the Appellant under cover of a letter dated 23 August 2006, that actually arrived in the office of the Appellant’s solicitor on 24 August 2006. The trial occurred on 5, 6 and 7 September 2006. Ms Whitby’s report came to the attention of Ms Welsh, counsel for the Appellant, only on the second day of the trial. At the start of the second day’s hearing, before Mr Adams was called, Ms Welsh, stated that she had only just seen Ms Whitby’s report, and:

“… As things stand I don’t propose to cross-examine the defendant’s expert but there are a couple of matters on which I want to get instructions from the plaintiff, obviously I haven’t done that because he’s in cross-examination so I may have some questions of the plaintiff arising out of this expert’s report and my friend may want to cross-examine. I don’t know whether that’s going to affect the expert being called now, I doubt it very much, because it only goes to factual matters and not to anything that would affect assumptions between experts.”

Clearly at that stage Ms Welsh was assuming that Ms Whitby’s report would be tendered.

45 Early in the evidence in chief of Mr Adams, Ms Welsh established that Mr Adams had read the report of Ms Whitby. Thereupon Mr Dodd said that he would not be relying upon Ms Whitby’s report. The following then ensured:

“WELSH: In that event your Honour I’ll call for the annexures or the appendices to the report because I propose to deal with them through this witness and tender them in the plaintiff’s case.
DODD: I’ll – are they there? Excuse me your Honour.
WELSH: And your Honour, I also propose to tender the report in the plaintiff’s – or seek to tender the report in the plaintiff’s case.
DODD: Yes that’s – original copies have been produced.”

46 Ms Welsh then proceeded to commence asking Mr Adams about criticisms of his report that Ms Whitby made. Mr Dodd objected, on the ground that he was not relying on Ms Whitby’s report. Ms Welsh did not press the line of questioning.

47 At the conclusion of the evidence of Mr Adams, still on the second day of the trial, Ms Welsh tendered one of the annexures to Ms Whitby’s report. The following then ensued:

“HIS HONOUR: Are you going to tender the actual report?
WELSH: Well your Honour I expect I will be, I’m just going to consider my position overnight whether it’s necessary or not.
HIS HONOUR: We might have merely a repeat of the same. I don’t know the line of Ms Whitby’s report obviously, but the cross-examination of Mr Adams has gone very much along the line of distinction between a traumatic single instance type injury and repetitive overuse type injury. But it’s a matter for you obviously.
WELSH: Yes I accept that your Honour.”

48 The next day, Ms Welsh sought to tender the report of Ms Whitby. Mr Dodd objected to that tender. The transcript then records that the following occurred:

“WELSH: Your Honour I don’t wish to rely on any hearsay material in the report on the basis that the facts have to be independently proved. I simply rely on this expert ergonomist’s assessment of the work task which the plaintiff had to perform and her opinion as to the magnitude of the risk posed by performance of the task.
DODD: The objection is maintained your Honour. Quite obviously your Honour in terms of the discussion before it hasn’t been served in the plaintiff’s case and your Honour the – it hasn’t been proved – it hasn’t been subject to cross-examination which it would be subject to otherwise.
HIS HONOUR: Well as I pointed out yesterday if the plaintiff’s legal advisors seek to call Miss Whitby as a witness then – actually if Miss Whitby is not to have her report accepted without the need for cross-examination she would have to be produced for cross-examination. Are you in a position to do that?
WELSH: Well your Honour it’s an unusual situation where those who wish to cross-examine her under the rules have to get her here. I was – having only received the report yesterday we’d not made arrangements for her to be available but I understand that my friend had and I didn’t appreciate that my friend wanted to cross-examine her in any event.
HIS HONOUR: Well having regard to his cross-examination yesterday I think I might’ve suggested that if Miss Whitby did come that she’d probably be subjected to a similar sort of a cross-examination that was accorded to Mr Adams. But it would seem to me to be most unlikely that the defence would simply stand back and allow Miss Whitby’s report to go in unchallenged. Unless you’re in a position to call Miss Whitby for cross-examination then I wouldn’t be prepared to accept her report.
WELSH: In that event your Honour I understand that without objection I can tender appendices 2 and 4 to her report.”

The Appellant’s Submission

49 The Appellant submits that the trial judge’s failure to receive Ms Whitby’s report in these circumstances involved an error that caused the trial to miscarry, in a way quite separate to the miscarriage of the trial resulting from the identification of the time of injury.

50 That submission needs to be evaluated against the background of the applicable rules of court.

Relevant Rules of Court

51 The present provisions of Division 2 of Part 31 Uniform Civil Procedure Rules 2005 (rule 31.17 to rule 31.54 inclusive), controlling the giving of expert evidence, came into effect on 8 December 2006. Thus, it is by reference to the provisions in force in September 2006, not the present provisions, that the correctness of the trial judge’s ruling needs to be determined.

52 Rule 31.17 UCP Rules, as then in existence, stated:

“ expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion, and the facts on which the opinion is formed, and contains the substance of the expert’s evidence that the party serving the statement intends to adduce in chief at the trial.”

Ms Whitby’s report complied with that definition.

53 Rule 31.18 provided:

“(1) Each party must serve experts’ reports … on each other active party:
(a) in accordance with any order of the court, or
(b) if no such order is in force, in accordance with any relevant practice note, or
(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.
(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.
(3) Except by leave of the court, or by consent of the parties:
(a) an expert’s report … is not admissible unless it has been served in accordance with this rule, and
(b) without limiting paragraph (a), an expert’s report … when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and
(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report … served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.
(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:
(a) that there are exceptional circumstances that warrant the granting of leave, or
(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).”

54 Rule 31.19 provided:

“(1A) This rule applies to proceedings in the District Court or a Local Court.
(1) If an expert’s report is served in accordance with rule 31.18 or an order made under that rule, the report is admissible:
(a) as evidence of the expert’s opinion, and
(b) if the expert’s direct oral evidence of a fact on which the opinion was formed would be admissible, as evidence of that fact,
without further evidence, oral or otherwise.
(2) Unless the court orders otherwise:
(a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert’s report has been prepared to procure that attendance, and
(b) … the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which attendance is required.
(3) Except for the purpose of determining any liability for conduct money or witnesses’ expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party.
(4) A party who requires the attendance of a person as referred to in subrule (2):
(a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and
(b) must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.
(5) If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.
…
(7) The party using an expert’s report may re-examine an expert who attends for cross-examination under a requirement under subrule (2).
(8) This rule does not apply to proceedings on a trial with a jury.”

The Application of Rule 31.18(1) to this Case

55 Practice Note (Civil) number 1 of the District Court, made on 9 August 2005 and therefore in force at the time relevant to the present proceedings, makes provision for the parties preparing a timetable of pre-trial steps, and for the holding of a pre-trial conference at which

“… the Court will examine the timetables proposed by the parties and make appropriate directions and orders, including orders for service of medical and expert reports …. The steps in the timetable will become orders of the court that must be strictly complied with.” (clause 3.4)

56 That Practice Note also makes provision for a status conference to occur after the pre-trial conference and at a time when the parties should be ready to take a trial or arbitration date. Clause 7.4 of the Practice Note provides:

“Unless orders are made at the status conference, the court will usually not allow parties to rely on medical reports and expert’s reports served after the status conference (see rule 31.18(1)(a)).”

57 That Practice Note provides one of the means by which an order of the type referred to in rule 31.18(1)(a) could be made.

58 However, we were not informed that there was, in the present case, any relevant order of court, of the kind referred to in rule 31.18(1)(a). Nor were we informed of there being any relevant Practice Note, of the kind referred to in rule 31.18(1)(b). Thus, the appeal has been conducted on the basis that the only requirement that arose under rule 31.18(1) was for each party to serve experts reports not later than 28 days before the date of the hearing.

Modifications of the Law of Evidence by Rule 31.18 and 31.19

59 The effect of rule 31.18(3)(a) is to modify the law of evidence by imposing a precondition upon the admissibility of an expert’s report. That precondition for admissibility is that either (i) the court has granted leave, or (ii) the parties consent, or (iii) the report has been served in accordance with rule 31.18.

60 Rule 31.19(1) contains a further important modification of the law of evidence. Under the general law, an expert’s report would only be admissible if the parties to the proceedings consented to its tender, or if the expert gave evidence (either orally, or on affidavit) to the effect that to the extent to which the report contained matters of fact they were true, and to the extent to which the report contained opinions they were opinions that the expert held. Rule 31.19(1) significantly modifies that general law provision, by enabling the expert’s report to be admitted into evidence (to the extent to which the report contains the expert’s opinion, and contains statements of fact concerning which the expert could have given direct oral evidence) upon it being established only that the report has been served in accordance with rule 31.18, or an order has been made under rule 31.18.

61 Before a provision such as rule 31.19(1) was enacted, the procedural requirements for getting an expert’s report into evidence brought with them the means of enabling any party to litigation who wished to cross-examine an expert to do so. If the expert proved his or her report orally in the witness box, then necessarily that expert was in court, and therefore available for cross-examination. If the expert proved his or her report by an affidavit, the usual course of pre-trial procedure required the affidavit to be served in advance of the hearing, and a rule, akin to the present UCP Rule 35.2, enabled any party who was served with that affidavit to serve a notice requiring the deponent of the affidavit to be present for cross-examination.

62 When rule 31.19(1) made unavailable those techniques for enabling a party who wished to cross-examine an expert to do so, an alternative procedure was needed to achieve the same objective. Rule 31.19(2)-(5) provides that alternative procedure so far as proceedings in the District Court are concerned.

Some Questions of Construction of Rule 31.18

63 Some questions of construction of rule 31.18 arose in the argument. One of them concerned the identification of the expert’s reports that must be served pursuant to rule 31.18(1). One possibility is that the reports required to be served by a party are expert’s reports that that party has commissioned or otherwise caused to be written. Another possibility is that the expert’s reports that must be served are expert’s reports upon which a party intends to rely, regardless of who commissioned or caused to be written those reports.

64 We are informed by counsel that a practice of “back-serving” expert’s reports has developed in the District Court. Under it, if party A has served an expert’s report on party B, and party B wishes to keep open the option of itself tendering the report at the hearing, party B then serves a copy of the report on party A, notwithstanding that it was party A who commissioned the preparation of the report. That practice is presumably a response to uncertainty about the meaning of rule 31.18(1). It has at least the merit of providing a means of warning party A of the possibility that party B might tender the report at the hearing. When so warned, party A is then able to take steps under rule 31.19(2) to have the person who prepared the report at court for cross-examination if party A would wish to cross-examine if the report were to be tendered by party B. Written notification by party B would serve that objective equally well, however, and would avoid the waste involved in copying and serving a report (which could be voluminous) on a party who clearly already has a copy of it.

65 I will not, however, give any further consideration to whether this practice of “back-serving” is required by the rules, because (a) pre-trial directions ought ordinarily contain, as one of the precautions against trial by ambush, specific directions for any party who wishes to rely upon an expert’s report to state that intention to other parties sufficiently in advance of the hearing for the other parties to be able to prepare for that contingency, and (b) in the present case, the report of Ms Whitby was not served by the solicitors for the Respondent upon the solicitors for the Appellant in accordance with rule 31.18(1), nor was that report back-served by the solicitors for the Appellant upon the solicitors for the Respondent. In that circumstance, there has clearly not been service in accordance with rule 31.18(1), regardless of whether there is or is not a requirement under the rules for the Appellant to back-serve the report.

66 Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

67 In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.

68 The Appellant submitted that there were exceptional circumstances in the case, arising from the fact that the report was prepared at the request of the Respondent who served it, but then chose not to tender it. The Appellant submits that unavailability for cross-examination was but one relevant consideration in the exercise of the discretion, and points out that the Respondent called no evidence that it had attempted, but had been unable, to organise the attendance of the witness. However, as will appear, in my view the decision of the aspect of this case relating to Ms Whitby’s report does not depend upon whether there were exceptional circumstances.

Decision Concerning Ms Whitby’s Report

69 When the report of Ms Whitby had not been served in accordance with rule 31.18 by either party, one of the ways in which rule 31.19(1) would have made Ms Whitby’s report admissible without further evidence was closed. However, service of a report in accordance with rule 31.18 is only one of the means provided by rule 31.19(1) for a report to become admissible without further evidence. Another is if the court grants leave under rule 31.18(3) totally excusing service of the report.

70 The sequence of events at the trial concerning the possible tendering of Ms Whitby’s report shows that Ms Welsh only became aware of the report on the second day of the trial. As soon as Mr Dodd stated that he would not be relying on Ms Whitby’s report, Ms Welsh announced an intention to seek to tender the report herself. Her framing that intention as being to “seek to tender” the report is consistent with a recognition of a need for leave to tender the report, rather than being able to tender it as a matter of right, but that language might also show a recognition that the report could be objected to, at least in part, on the basis of not complying with rules of evidence. Mr Dodd gave no indication at that stage of any desire to cross-examine Ms Whitby if Ms Welsh were to succeed in tendering the report. There was, however, no need for Mr Dodd to announce any such intention, because, if the Appellant succeeded in getting the report into evidence, it would then be the responsibility of the Respondent’s lawyers under rule 31.19(2) to procure Ms Whitby’s attendance, and any order of the court shortening the 28-day period fixed by rule 31.19(2)(b), if they wished to cross-examine her.

71 When Ms Welsh returned to the topic of tendering the report, at the end of the second day, neither the judge, nor Mr Dodd, foreshadowed any possibility that Ms Welsh might be required to have Ms Whitby available for cross-examination if the report was to be tendered. Indeed, Mr Dodd said nothing at that stage about wanting to cross-examine Ms Whitby in the event that her report was tendered, and the possibility that Mr Dodd might want to cross-examine was a surmise of the judge.

72 When the topic was returned to on the third day, Ms Welsh made no application under rule 31.18(3) for leave. Nor did the judge himself advert to the possibility of leave being granted under that rule. Thus no order granting leave under rule 31.18(3) was made. That meant that neither of the circumstances provided for by rule 31.19(1) for the report to be admissible simply by being tendered, applied. Thus, the situation was governed by the general law, under which the report could be tendered only by consent (which obviously was not forthcoming), by affidavit (and there was no affidavit from Ms Whitby), or by the author of the report coming to court to prove it, and thereby making herself available for cross-examination.

73 I am left with the feeling that the court’s procedures have not worked well concerning the admissibility of Ms Whitby’s report. That feeling can be traced back to several sources – the lateness of the solicitors for the Respondent in obtaining and serving the report; the apparent failure of court directions to make provision for timely notification by any party of an intention to rely upon a particular expert report; and the failure of all concerned to give consideration to whether exceptional circumstances existed that warranted the granting of leave under rule 31.18(3). The question of whether, had the trial judge turned his mind to it, he would have been appellably wrong in failing to conclude that there were exceptional circumstances only arises if he ought to have considered “exceptional circumstances” at all. However, Ms Welsh made no application for leave under rule 31.18(3). In that circumstance, I am not prepared to conclude that the failure of the trial judge to himself advert to rule 31.18(3) and remind Ms Welsh of the possibility of making an application for leave under that provision, was an error in the exercise of a trial judge’s discretion concerning the conduct of a case of a kind that should be corrected on appeal.

74 In the situation in which the trial judge actually came to consider the tender of Ms Whitby’s report on the third day, where no one had served it in accordance with rule 31.18, no order had been made under rule 31.18(3), there was no consent to the tender of the report, and no affidavit verifying the report was available to be read, the trial judge was technically right in holding that the report could be tendered only if Ms Whitby was at court.

75 Once the judge had made the ruling that he would not accept the report unless Ms Whitby was available, there was no application for an adjournment to enable Ms Whitby’s attendance to be procured, so that the report could then come into evidence consistently with the trial judge’s ruling.

76 In all these circumstances, I do not conclude that the failure of the trial judge to accept the report is a separate error that warrants a new trial.

Orders

77 I propose the following orders:

(1) Appeal allowed.

(2) Set aside the orders made in the District Court on 27 September 2006 concerning this matter.

(3) Remit the matter to the District Court of New South Wales for a new trial on all issues, and for determination of how the costs previously incurred in the proceedings in the District Court should be borne.

(4) Respondent to pay costs of the Appellant of the appeal.

(5) Respondent to have a certificate under the Suitors Fund Act 1951 if qualified.

78 HANDLEY AJA: I agree with Campbell JA.

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