Gene Daly v John Ryan [2019] NSWSC 1211

Gene Daly v John Ryan [2019] NSWSC 1211

Because Dr Pillemer no longer accepted the opinion expressed in the conclave report, the proceeding could not fairly be tried on the basis that he shared Associate Professor Shatwell's view. The plaintiff therefore should be allowed to rely on Dr Pillemer's further report and, once the imminent trial date had to be vacated, should also be allowed to present the additional lay evidence concerning his medical history. Fairness to the defendant required time for any further enquiries and directions rather than proceeding on the listed trial date. The plaintiff, having brought the application late, was to pay the costs of the notice of motion, while costs thrown away by the vacation of the...

Jurisdiction
Australia
Judgment Date
10 September 2019
Procedural Posture
Negligence Action Arising From Workplace Injury on a Rural Property / Plaintiff's Notice of Motion for Leave to Rely on Additional Evidence Shortly Before Trial
Outcome
Leave granted to the plaintiff to rely on additional evidence; trial date vacated; plaintiff ordered to pay costs of the notice of motion; costs thrown away reserved to the trial Judge.
Legal Topics
['additional Expert Evidence' 'lay Evidence' 'expert Conclave Report' 'vacation of Trial Date' 'costs of Notice of Motion' 'costs Thrown Away']
['civil Law' 'negligence' 'personal Injury' 'civil Procedure' 'evidence'] ['additional Expert Evidence' 'lay Evidence' 'expert Conclave Report' 'vacation of Trial Date' 'costs of Notice of Motion' 'costs Thrown Away']

Case Brief

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Procedural Posture

Negligence Action Arising From Workplace Injury on a Rural Property / Plaintiff's Notice of Motion for Leave to Rely on Additional Evidence Shortly Before Trial

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on additional expert evidence after his expert changed opinion following a conclave report.' 'Whether the plaintiff should be granted leave to rely on additional lay evidence about his medical history.' 'Whether the imminent trial date should be vacated if leave to rely on additional evidence was granted.' 'How costs of the notice of motion and costs thrown away by vacation of the trial date should be dealt with.']

Ratio Decidendi

Because Dr Pillemer no longer accepted the opinion expressed in the conclave report, the proceeding could not fairly be tried on the basis that he shared Associate Professor Shatwell's view. The plaintiff therefore should be allowed to rely on Dr Pillemer's further report and, once the imminent trial date had to be vacated, should also be allowed to present the additional lay evidence concerning his medical history. Fairness to the defendant required time for any further enquiries and directions rather than proceeding on the listed trial date. The plaintiff, having brought the application late, was to pay the costs of the notice of motion, while costs thrown away by the vacation of the...

Court Disposition

Leave granted to the plaintiff to rely on additional evidence; trial date vacated; plaintiff ordered to pay costs of the notice of motion; costs thrown away reserved to the trial Judge.

Orders

  • ['Leave be granted to plaintiff to reply upon the report of Dr Pillemer dated 12 August 2019.' 'Leave be granted to plaintiff to rely upon the statement of Jonnica Daly dated 16 August 2019.' 'Leave be granted to plaintiff to rely upon the statement of Olivia Daley dated 16 August 2019.' 'Leave be granted to...