Kiely v AAT Port Kembla [2016] NSWSC 66

Supreme Court New South Wales

Medium Neutral Citation: Kiely v AAT Port Kembla [2016] NSWSC 66 Hearing dates: 1; 2; 3; 4; 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1)The matter is adjourned for further hearing before me on Thursday 28 April 2016 with an estimate of one day plus. (2)That the parties' rehabilitation medicine specialists, Dr Jones and Dr Ho, are to re confer and produce a supplementary joint report prepared in accordance with UCPR, r 31.26(2) by 19 February 2016. In that conference, the experts are to consider the additional material provided under cover of, and the questions raised by, the letter drafted by counsel, as settled by me and initialled by me, dated today. (3)List the matter for directions, and to check readiness to proceed, before me at 9.30am on 23 February 2016. (4)The defendant is to serve any witness statement concerning the circumstances in which it agreed "without admission of liability" to indemnify the worker's compensation insurer in respect of worker's compensation to, for or on behalf of Mr Kiely by Thursday 24 March 2016. (5)Plaintiff to have liberty to apply in chambers for short service of any subpoenas necessitated by the service of any such evidentiary statement as contemplated by o 4. (6)The costs of the hearing to date are costs in the cause. Catchwords: PROCEDURE – Miscellaneous procedural matters – other matters EXPERT EVIDENCE – joint expert report – procedure – when one expert changes mind – supplementary report Category: Procedural and other rulings Parties: John Kiely (Plaintiff) AAT Port Kembla Pty Ltd (Defendant) Representation: Counsel: D. Hooke SC (with G Smith) (Plaintiff) G. Parker SC (Defendant) Solicitors: Lough & Wells Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2014/61222

1. Mr Kiely sues AAT Port Kembla Pty Ltd for damages for personal injuries received by him on 15 March 2011. On that day he was in the course of his employment with a company known as Brailey Transport picking up a load of timber from the defendant's premises. The precise circumstances in which he received his injuries are hotly contested and I think it sufficient for present purposes to say he suffered injuries when he was run over by a forklift truck driven by one of the defendant's employees. The case which initially commenced in the District Court was removed into this Court some time last year and set down for trial for five days commencing on 1 February 2016. 2. The trial has been conducted with great efficiency by Mr Hooke SC who appears with Mr Smith for the plaintiff, and Mr Parker SC who appears for the defendant. And apart from one matter which I am about to mention, there is no doubt that the evidence, at least, would have concluded before me within the time estimated by the parties, even if it had been necessary to grant some short adjournment to enable addresses to conclude. 3. The matter which I have averted to is that in accordance with the court's usual procedures, and the directions made by the registrar, all of the quantum experts, including two rehabilitation medicine specialists, in their separate categories, met in conference and produced joint reports. 4. The rehabilitation medicine specialists produced a report which indicated on the face of it that they had managed to agree upon the answer to each question or issue directed to them by the parties for their attention. They were expected to give their concurrent evidence at 3pm yesterday, and it was the expectation of counsel and myself that their evidence would be relatively short, say not exceeding one hour in duration. Just before the luncheon adjournment, which was taken a little later than usual to complete an earlier round of concurrent evidence, I was informed by Mr Hooke that he had been told by his expert that she had changed her mind about her agreement with the answer to a critical question which the rehabilitation specialists had considered. And that question was in relation to prescription for care, whether paid or unpaid, necessary for Mr Kiely to accommodate the disabilities resulting from his injuries. As I have said, obviously a crucial matter in any case of this type, having the capacity to very substantially to affect the measure of damages that may be awarded if Mr Kiely succeeds on liability. 5. Under the experts' code of conduct, an expert has an obligation to inform the Court if the expert has had reason to alter his or her opinion as expressed in a previous report. As r 31.27(4) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), which was drawn to my attention by Mr Parker, also makes clear when that occurs it is the obligation of the expert to prepare a supplementary report informing the parties, and the Court of the reasons for the change in opinion, and setting out the new opinion formed. No such report had been prepared, and when the matter was debated before me, Mr Parker strongly submitted that given the previous agreement and the expectation that the evidence from the experts would proceed on the basis of it, his client was prejudiced by the change of opinion in circumstances where the reasons for that change were unexpressed. 6. I accept the force of that argument. I observe in passing that it is the duty of an expert in the preparation of a joint report to state the matters agreed, and in the event of disagreement, to state the reasons for that disagreement: UCPR, r 31.26(2). Accordingly, the proper procedure in circumstances where an expert has had a change of heart is for the expert to prepare a supplementary report explaining the change of position. The same rule and practice applies where there has been a conference and the production of a joint report. Of course the other expert or experts who have participated in the conference must have the chance to themselves prepare a supplementary report explaining why they may disagree with the other expert's changed opinion. 7. That this is the practice is recognised by Practice Note SG Gen 11 which deals with joint expert evidence. It makes quite clear that the general rule that an expert who changes his or her opinion has an obligation to inform the Court applies equally to joint reports. This is made clear because that practice note provides that, notwithstanding the change, counsel may cross‑examine the expert on the basis of the previous joint report. 8. In an effort to give effect to the overriding purpose to avoid any unnecessary adjournment, I directed that the experts confer with counsel for both parties to enable, in substance, the plaintiff's expert to explain her change of position and the reasons for it, and the defendant's expert to say whether he disagreed with that changed position, and if so, the reasons for his disagreement. To facilitate the case proceeding, I arranged to extend the usual court sitting times to take the experts concurrent evidence after-hours if necessary. 9. Unfortunately for reasons that were fully explained by counsel, although the joint conference with the experts and counsel took place, it was not possible for the issues to be worked through in the time that was available yesterday afternoon, even allowing for the extended sitting hours I was prepared to direct. And it seemed to me that in all the circumstances, as explained by counsel, that the interests of justice required that the matter be adjourned to enable the experts to re‑confer without being under undue time-pressure, to produce a supplementary joint report as contemplated by the rules. Although this is unfortunate, it seemed to me that no other measure could be taken which would avoid the necessity for an adjournment. 10. For those reasons I make the following directions and orders. 1. The matter is adjourned for further hearing before me on Thursday 28 April 2016 with an estimate of one day plus. 2. That the parties' rehabilitation medicine specialists, Dr Jones and Dr Ho, are to re‑confer and produce a supplementary joint report prepared in accordance with UCPR, r 31.26(2) by 19 February 2016. In that conference, the experts are to consider the additional material provided under cover of, and the questions raised by, the letter drafted by counsel, as settled by me and initialled by me, dated today. 3. List the matter for directions, and to check readiness to proceed, before me at 9.30am on 23 February 2016. 4. The defendant is to serve any witness statement concerning the circumstances in which it agreed "without admission of liability" to indemnify the worker's compensation insurer in respect of worker's compensation to, for or on behalf of Mr Kiely by Thursday 24 March 2016. 5. Plaintiff to have liberty to apply in chambers for short service of any subpoenas necessitated by the service of any such evidentiary statement as contemplated by o 4. 6. The costs of the hearing to date are costs in the cause.

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Amendments 15 February 2016 - Paragraph 10 (5) "a short service" changed to "for short service" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2016