Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063

Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063

The plaintiff's proposed letters and questions were rejected because they were not neutrally expressed, used selective excerpts and leading propositions favourable to the plaintiff, framed issues in a loaded and divisive way, and would entrench positions rather than assist experts independently to identify matters agreed and disagreed. That approach was contrary to the UCPR, the expert Code of Conduct and the practice notes governing expert conclaves. The defendant's proposed questions were appropriately framed and necessary to assist evaluation of causation, including s 5D Civil Liability Act 2002 (NSW) and Watts v Rake/Purkess v Crittenden issues.

Jurisdiction
Australia
Judgment Date
13 August 2020
Procedural Posture
Procedural and Other Ruling in Common Law Personal Injury Proceedings / Case Management Issue Concerning Draft Letters and Proposed Questions for Expert Damages Conclaves
Outcome
The plaintiff's draft letters and proposed questions for the expert damages conclaves were rejected; the defendant's proposed questions and letters were permitted; the question of whether the plaintiff's solicitor and counsel should bear their own costs and fees was reserved.
Legal Topics
['expert Conclaves' 'joint Expert Reports' 'concurrent Evidence' 'case Management' 'causation' 'pre Existing Conditions' 'costs']
['civil Procedure' 'expert Evidence' 'negligence' 'personal Injury'] ['expert Conclaves' 'joint Expert Reports' 'concurrent Evidence' 'case Management' 'causation' 'pre Existing Conditions' 'costs']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Common Law Personal Injury Proceedings / Case Management Issue Concerning Draft Letters and Proposed Questions for Expert Damages Conclaves

Legal Issues

  1. 1 ["Whether the plaintiff's draft letters and proposed questions for expert damages conclaves were consistent with the Uniform Civil Procedure Rules 2005 (NSW) and relevant practice notes concerning joint expert reports and concurrent evidence." "Whether the defendant's proposed questions, including questions about realistic prospects of conditions or treatment occurring without the events relied upon, were appropriate for the expert conclaves." "Whether costs associated with preparation and agitation of the plaintiff's draft letters should be borne by the plaintiff or by his legal representatives."]

Ratio Decidendi

The plaintiff's proposed letters and questions were rejected because they were not neutrally expressed, used selective excerpts and leading propositions favourable to the plaintiff, framed issues in a loaded and divisive way, and would entrench positions rather than assist experts independently to identify matters agreed and disagreed. That approach was contrary to the UCPR, the expert Code of Conduct and the practice notes governing expert conclaves. The defendant's proposed questions were appropriately framed and necessary to assist evaluation of causation, including s 5D Civil Liability Act 2002 (NSW) and Watts v Rake/Purkess v Crittenden issues.

Court Disposition

The plaintiff's draft letters and proposed questions for the expert damages conclaves were rejected; the defendant's proposed questions and letters were permitted; the question of whether the plaintiff's solicitor and counsel should bear their own costs and fees was reserved.

Orders

  • ["The plaintiff's draft letters and proposed questions for the expert damages conclaves are rejected." "The defendant's proposed questions, including questions 6, 14, 26 and 34, are to remain in the list of questions." "The plaintiff bear his own costs of and associated with the preparation by the plaintiff's...