Supreme Court New South Wales Medium Neutral Citation: Soma-Devan v SCentre Shopping Management Pty Ltd t/as Westfield Hurstville (No 2) [2024] NSWSC 95 Hearing dates: 31 January 2024 Date of orders: 31 January 2024 Decision date: 31 January 2024 Jurisdiction: Common Law Before: Dhanji J Decision: (1) The plaintiff has leave to rely on the report of Dr Christopher Canaris dated 23 August 2023. (2) The plaintiff has leave to rely on the report of Dr Mark Ridhalgh dated 22 September 2023. (3) The plaintiff has leave to rely on the report of Kayleen Engelsman, occupational therapist, dated 22 June 2023. (4) The plaintiff has leave to rely on the vocational assessment report of Eleanor Eshel dated 27 July 2023. (5) The plaintiff has leave to rely on the amended statement of particulars filed 18 October 2023. (6) The plaintiff is to pay the defendants' costs on the motion. Catchwords: CIVIL PROCEDURE – notices of motion – expert evidence – where plaintiff sought leave to rely on expert reports – context of delay – amended particulars - renewed claim for psychiatric injury - overriding purpose and objects of case management – rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - exceptional circumstances established - leave granted to plaintiff to rely on expert reports – orders made CIVIL PROCEDURE – subpoena to plaintiff's solicitor – client legal privilege claimed – waiver – scope of subpoena narrowed – objection withdrawn Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Irfan v Western Sydney Local Health District [2023] NSWSC 845 Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWCA 93 Category: Procedural rulings Parties: Prashadhinee Soma-Devan (Plaintiff) SCentre Shopping Management Pty Limited trading as Westfield Hurstville (First Defendant) Ezko Property Services (Aust) Retail Pty Ltd (Third Defendant) Representation: Counsel: M McAuley (Plaintiff) D Talintyre (First Defendant) C Coventry (Third Defendant) Solicitors: Paul A Curtis & Co (Plaintiff) HWL Ebsworth Lawyers (First Defendant) Wotton & Kearney (Third Defendant) File Number(s): 2018/331214 Publication restriction: Nil EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: Listed before me for hearing this morning were two notices of motion, the first brought by the plaintiff in the substantive proceedings, the second brought by the first defendant. 2. It is helpful to first say something of the substantive proceedings. The plaintiff in those proceedings claims an entitlement to damages as a result of injury occasioned when, according to her claim, she slipped and fell on an ice cream at Westfield Hurstville on 26 November 2015. 3. The first defendant is the proprietor of the shopping centre. The third defendant is the cleaning contractor engaged by the centre. Whilst named as first and third defendants I note that they are the only relevant defendants in the proceedings. 4. The matter is listed for hearing for ten days commencing on 12 August 2024. By her amended notice of motion filed on 15 January 2024, filed pursuant to leave granted on 11 January 2024, the plaintiff seeks the following orders: "1 The Plaintiff to have leave to rely on the report of Dr Christopher Canaris dated 23 August 2023. 2 The Plaintiff to have leave to rely on the report of Dr Mark Ridhalgh dated 22 September 2023. 3 The Plaintiff to have leave to rely on the report of Kayleen Engelsman, Occupational Therapist dated 22 June 2023. 4 The Plaintiff to have leave to rely on the Vocational Assessment Report of Eleanor Eshel dated 27 July 2023. 5 The Plaintiff to have leave to rely on the Amended Statement of Particulars filed 18 October 2023. 6 Costs in the cause. 7 Such further orders as this Court considers appropriate." 1. The first and third defendants appear in opposition to the orders sought in relation to Dr Canaris and Dr Ridhalgh. The third defendant initially opposed the order in relation to Ms Engelsman. Ms Engelsman is an occupational therapist. The third defendant's opposition to Ms Engelsman's report was withdrawn after the plaintiff made clear in the course of the hearing that whilst a report had earlier been obtained from another occupational therapist, Ms Petrovska, Ms Petrovska would not be called at the hearing. The result is that only one occupational therapist is intended to be called by the plaintiff, that being Ms Engelsman. In those circumstances the third defendant's opposition to the plaintiff being granted leave to rely on her report was withdrawn. 2. The first defendant by its amended notice of motion sought orders that it be granted immediate access to documents produced by the plaintiff pursuant to a subpoena issued by the first defendant filed in this Court on 11 October 2023. That matter was set for hearing before me on the basis that the plaintiff opposed the orders sought by the first defendant. 3. The two motions were, at least initially, heard together. The evidence tendered was tendered in both motions. A court book was provided containing the motions, evidence, and written submissions. The court book was admitted into evidence. It is unnecessary to list all of the material before me. Ultimately, the parties relied on only a limited subset of the evidence which was tendered, reference to which was made in the oral submissions. 4. It is convenient to say something more about the background to the claim. The plaintiff was at Westfield Hurstville on 26 November 2015. She was at the time holding in her arms her newborn daughter when she, on her case, slipped on, as I have indicated earlier, an ice cream which had apparently been spilt in her vicinity. She was taken to hospital where it became apparent there were fractures to a number of vertebrae. 5. Subsequent to her injury the plaintiff had two further children and at various points returned to her work as a psychiatric registrar, although I note that the evidence is that she last worked as a psychiatric registrar in October 2018, shortly before the birth of her third child. 6. It is apparent from what I have said that the injury in this matter occurred a considerable time ago. The proceedings have a somewhat lengthy and unhappy history. It is significant to note that history in the context of the plaintiff's desire to rely on the report of Dr Canaris in support of a claim for psychiatric injury. 7. The plaintiff's initial statement of particulars filed in 2018 listed psychiatric injuries and disabilities including "possible post-traumatic stress disorder" and "anxiety/depression". Despite the initial indication in the particulars, on 18 January 2019 the plaintiff's solicitor sent a letter to the first defendant's solicitor advising "the plaintiff will not be pursuing any claim in respect of psychological injury" and noted that in accordance with instructions, (I interpolate, instructions not to pursue such a claim), the plaintiff's solicitor cancelled the plaintiff's appointment with the psychiatrist retained by the first defendant. 8. Nonetheless, on 12 April 2019 the plaintiff filed amended particulars which added reference to psychiatric injury, at least insofar as the particulars stated, "pain worse with lifting and bending accentuated by stress and anxiety or depression". On 16 September 2019 the plaintiff filed further amended particulars removing all references to psychiatric injuries and disabilities. Subsequently, on 11 May 2022 the Registrar made an order by consent noting that "the plaintiff has served all primary expert medical evidence". 9. The plaintiff in her evidentiary statement filed in June 2023 asserts that the initial claim for psychiatric injury was filed by her solicitors "in error and without [her] instructions". 10. The matter was listed before his Honour Chen J on 28 April 2023 on which date the parties agreed on consent orders. Neither those consent orders nor the parties' preceding correspondence contained any reference to further primary expert evidence and the matter was subsequently adjourned to 26 May 2023. 11. On 23 May 2023, shortly before the listing on 26 May, the plaintiff's solicitor sent a letter to the first defendant's solicitor advising that the plaintiff would be filing a further amended statement of particulars reinstating her claim for psychiatric injury and advising that a medicolegal consultation with Dr Christopher Canaris had been arranged for 24 August 2023. On 25 May 2023 the plaintiff filed the forecast amended statement of particulars. 12. On 26 May 2023 the matter was again before Chen J. His Honour made various orders including the following: "2 Direct that the plaintiff serve her further evidentiary statement dealing with her psychiatric claim by 30 June 2023 5pm. 3 Order that the plaintiff serve any vocational expert evidence and evidence from an occupational therapist in reply by 28 July 2023. 4 Direct that in the event that the plaintiff relies upon a report from Dr Chris Canaris, consultant psychiatrist, that such report be served by 15 September 2023. 5 Note that in relation to the further evidentiary statement served by the plaintiff in relation to any psychiatric injury alleged and any report from Dr Canaris that the defendants are to consider their ability to meet and respond to that report and the question of whether the plaintiff is to be given leave to rely upon that further evidence, if served, will be dealt with on the next review of the matter. 7 Order that if the defendants object the plaintiff being given leave to rely upon her further evidence in relation to her psychiatric injury and/or the report from Dr Canaris that the defendants are to file and serve an outline of submissions directed to any objection that they have, limited to no more than on page, by 10 November 2023 5pm. 8 In the event that the defendants, or one of them, object to the psychiatric evidence from the plaintiff and/or the report from Dr Canaris that the plaintiff is to file and serve a response to any submissions filed, limited to no more than one page, by 17 November 2023 5pm." 1. On 30 June 2023, the plaintiff filed her further evidentiary statement, a statement of her husband, and a statement of her mother, each of which included evidence relevant to the claim for psychiatric injury. The plaintiff's supplementary statement in particular contained material going to the explanation for the delay in her claim for psychiatric injury. 2. On 14 September 2023, the plaintiff served the report of Dr Canaris. Dr Canaris diagnosed the plaintiff as suffering "adjustment disorder with mixed anxiety/depression" and "somatic symptoms disorder with predominant pain." The report noted that the plaintiff had not had any psychological or psychiatric treatment prior to the medicolegal assessment of Dr Canaris. The first defendant notes that Dr Canaris did not suggest the plaintiff has post-traumatic stress disorder which has some relevance having regard to what was suggested by way of self-diagnosis by the plaintiff. 3. Subsequent to those matters, in October 2023, the first defendant's solicitor served on the plaintiff's solicitor the subpoena, the basis for the orders sought by the first defendant in its notice of motion. 4. Later, on 17 October 2023, the plaintiff served on the defendants a report of Dr Mark Ridhalgh, orthopaedic surgeon. The plaintiff had at this time already served a report from an orthopaedic surgeon, Dr Michael Johnson, dated 25 February 2019. There is no issue that Dr Johnson is still practising and available to provide medicolegal reports and, in those circumstances, the defendants' position is that any further updating reports from an orthopaedic surgeon ought to come from Dr Johnson. 5. Thus, as I have indicated, in issue are the orders sought by the plaintiff seeking leave to rely on the report of Dr Canaris and the report of Dr Ridhalgh. 6. With respect to the first defendant's motion, the subpoena issued by the first defendant sought production by the plaintiff's solicitor of "a clear, sharp copy of all memoranda, file notes and correspondence concerning your conference/s with the plaintiff in around May 2023 referred to in paragraphs 81 to 88 of the sealed evidentiary statement of [the plaintiff]". That material was produced. However, the plaintiff opposed access being granted to the defendant on the basis that the material was subject to legal professional privilege or, perhaps more properly, client legal privilege. 7. In the course of the hearing this morning the plaintiff indicated that her concern was that the subpoena caught a wide range of material well beyond that concerning simply her claim for damages based on psychiatric harm. On the plaintiff, through her counsel, indicating that concern, the first defendant narrowed the scope of the subpoena limiting the material sought to material relating to the psychiatric claim. This then led to a withdrawal by the plaintiff of the objection to the subpoena as narrowed. 8. As a result of the modified positions of the parties, I made an order requiring the plaintiff to provide the material produced in answer to the subpoena together with a further copy of that material containing the plaintiff's proposed redactions in accordance with the narrowed scope of the subpoena. It was agreed by the parties that I would, based on that, rule on the material; that is, I would make a determination as to the material falling within the scope of the narrowed subpoena, access orders to which will subsequently be made. It is consequently unnecessary to deal with the first defendant's motion further. It is anticipated that in due course orders will be made granting access to the material answering the limited scope of the subpoena and otherwise dismissing the motion. 9. I return then to the plaintiff's motion, and, firstly, the report of Dr Canaris. The first defendant, whose oral submissions before me today and submissions generally were adopted by the third defendant, submitted that r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') applies. The first defendant did not, in writing, submit that the rule applied. This was despite submitting that it applied to the report of Dr Ridhalgh. The third defendant in its written submissions suggested the rule "may" apply. Rule 31.28 provides: 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital 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 or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital 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 or hospital 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). 1. I have already made reference to order 4 made by Chen J on 26 May 2023. The report was filed in accordance with that order. The result is the report has been served "in accordance with an order of the Court" within r 31.28(1)(a). There has been at least literal compliance with the rule. Of course, Chen J did not rule that if served in compliance with the order the plaintiff was entitled to rely on the report. His Honour, in order 5, made plain that the plaintiff would nonetheless require leave to rely on the report. His Honour's orders, it might be noted, are no doubt the result of the long and unhappy history of the matter. 2. Quite apart from the report being served in accordance with Chen J's order, there is some reason to doubt that r 31.28 would apply in any event. Cavanagh J in Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 found that the rule goes to the admissibility of expert evidence which is ultimately a matter for the trial judge. Harrison J, as he then was, in Irfan v Western Sydney Local Health District [2023] NSWSC 845 summarised the effect of his Honour's reasons at [23] to [29] stating at [23]: "In Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433, Cavanagh J concluded that UCPR 31.28 is not applicable in circumstances similar to the present (albeit in that case where no hearing date had been fixed). His Honour held that on proper construction, UCPR 31.28 goes to the admissibility of expert evidence, which is ultimately a matter for the trial judge. His Honour observed at [23]–[29]: '(a) the purpose of UCPR 31.28 is to ensure that each party is aware of the relevant expert reports that will be relied on by the other party well before the hearing. (b) UCPR 31.28(4) applies to an application for leave under UCPR 31.28(3), which concerns admissibility of reports not served in accordance with UCPR 31.28. UCPR 31.28(4) does not concern applications for leave to serve a report contrary to the orders of the Court, nor to applications for an extension of time to serve a report late but before the hearing. (c) consequently, his Honour did not need to consider whether or not there were "exceptional circumstances" relating to late service of the report." 1. Whatever the position, r 31.28 is at least, as submitted by the defendants, informative of the approach which a court should take. Arguably, the situation is analogous to that which applies in the context of legal professional privilege where the provisions of the Evidence Act 1995 (NSW) do not directly apply to interlocutory arguments but are limited to the adducing of evidence. In that context, despite some historical differences, the position has evolved to the point where the common law, which is applied at the interlocutory stage, is consistent with the provisions of the Evidence Act: see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 543; [2013] HCA 46. In the present context it may be a strong argument against allowing leave to rely on the report if circumstances are such that it is clear that the evidence will not be admissible at the hearing of the matter. 2. Ultimately, as Harrison J noted in Irfan at [40]: "The rules, including UCPR 31.28, should be our servants, not our masters". The overriding principles concerning the Court's ultimate objective and the objects of case management are set out in ss 56 and 57 of the Civil Procedure Act 2005 (NSW). Those sections provide: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)— (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person— (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note— Examples of persons who may have a relevant interest are insurers and persons who fund litigation. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects— (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. It is clearly the case that there is no absolute right to amend pleadings at any stage of litigation. The High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 said at [103] that in the context of case management where one party seeks the exercise of discretion in its favour to the detriment of another, an explanation will be called for: "Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules." 1. At [111], their Honours stressed that: "All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend." 1. See also Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWCA 93 at [22] on which the defendants also rely. 2. I turn then to resolution of the issue with respect to the Canaris report. The plaintiff claims the defendants are liable to compensate her for her injuries. She, somewhat belatedly, claims her injury includes psychiatric injury. The hearing is not until August this year. The defendants do not say they cannot meet the evidence now sought to be relied upon by the plaintiff. That, however, is not the sole consideration. 3. The defendants stress the plaintiff's lack of psychiatric examination or treatment during the almost eight year period between the incident and the plaintiff's assessment by Dr Canaris in August 2023. The defendants submit that that delay is such that the plaintiff ought not be permitted to bring the psychiatric claim so late in the proceedings, particularly after she had given notice of the claim in 2018 but withdrew it in 2019. 4. In the context of that delay it is necessary to have regard to the explanation provided by the plaintiff. In her supplementary evidentiary statement filed 30 June 2023 the plaintiff states at par 13 that she is less able to cope "both physically and emotionally". She says: "This realisation has come to me gradually and reluctantly. I have only come reluctantly to a realisation of the extent of my injury. I have only reluctantly come to a realisation that the fall on 26 November 2015 has not only had physical effects, but emotional effects." 1. She states at pars 27 to 28: "27. All my training, both as a doctor, and as a psychiatrist, has reenforced the proposition that one ought not treat oneself. 28. With respect to my own emotional wellbeing, it was hard to assess myself. Indeed, it would have been unprofessional of me to try to do so." and further at par 30: "I recognise only now, with the benefit of hindsight, that my way of dealing with the aftermath of the injury has been to engage in avoidant behaviours." 1. The plaintiff goes on to say at par 41: "I am aware of circumstances where a doctor I know has disclosed a condition to AHPRA, by way of example, an anxiety disorder, which does not impact on his or her ability to practice medicine, and due to that disclosure, has had enormous difficulty obtaining registration to practice." She then states at pars 51 to 56: "51. I did my best to ignore my feelings after the injury on 26 November 2015, and I tried to carry on best I could. 52. Looking back, I realise I was not a good judge of my own situation. 53. I was trying to be "[s]toic" beyond my capacity. 54. I did not want to acknowledge that I was emotionally affected by the injury on 26 November 2015, not merely physically affected. 55. I wanted to do everything that I had planned to do before the injury – to be a spouse, a mother, a psychiatrist. 56. I did not acknowledge my own limits." 1. In seeking to address the plaintiff's proffered explanation, the defendants point to evidence apparently supporting a claim for psychiatric injury which existed prior to the plaintiff's withdrawal of the claim. The first defendant referred to the plaintiff's first evidentiary statement filed in 2021 in which she states at pars 40 to 50: "I have been affected emotionally" and "I find it distressing to recall the injury and no longer like going to large shopping centres". 2. The defendants further point to evidence of the plaintiff's husband and mother suggesting the presence of evidence of psychiatric injury from a time proximate to the fall in 2015. It is not the plaintiff's case, however, that she did not have any psychiatric issues from a time relatively soon after the physical injury. Rather, it is her case that she was in denial, at least as to the extent or significance of that injury. In that regard, whilst the plaintiff's husband's statement is supportive of the early presence of psychiatric harm, he also states at par 80: "I am aware that [the plaintiff] has had some emotional challenges since the injury on 26 November 2015 but has been reluctant to face them". 1. Her mother in her statement at par 14 describes the plaintiff as "[s]toic, almost to the point of stupidity". 2. Of more significance perhaps is the report of Dr Andrew Porteous of 11 February 2019. Dr Porteous is an occupational physician. He noted that the plaintiff reported to him ongoing pain, that her mood was dropping and that she had not had any treatment for this. In his opinion, having made reference to the untreated low mood reported by the plaintiff, the plaintiff needed a review by a psychiatrist or psychologist to "clarify whether she has psychological sequelae from the subject accident and ongoing pain". He noted she would likely need a course of psychotherapy which an, (I interpolate, appropriate), specialist will be able to comment on. 3. The defendants stress that despite that opinion and other evidence of the presence of psychiatric injury, nothing was done in the years that followed until events leading to this motion. That material, in existence either prior to the withdrawal of the claim for psychiatric injury or at least well before any attempt to reinstate the claim for psychiatric injury suggests, on the defendants' case that the plaintiff made an informed withdrawal and subsequent non-pursuance of any claim for psychiatric injury. As such, the effect of the defendants' submissions is that having made such an informed determination she ought not be able to reinstate that claim essentially on a whim. That may do some disservice to the defendants' submissions. They were not so broad as that. 4. Certainly, it can be accepted that the plaintiff should have done more to bring any claim for psychiatric harm significantly earlier than she has. It might be the case that in that regard her solicitor should have done more. Insofar as the plaintiff herself was working as a psychiatric registrar there is no evidence before me that as a result of that position she would necessarily be more self-aware with respect to her own condition than a layperson. 5. Dr Canaris reported that the plaintiff reported to him that she was "very resistant to the notion that she might have any mental health issues speaking of the stigma associated with this in the hospital system". Other evidence, particularly that of the plaintiff, suggests her circumstances and particularly her professional circumstances were such as to motivate her to minimise, in her own mind, her psychiatric state. 6. The first defendant points to the plaintiff's evidentiary statement and self-diagnosis that she was suffering from psychiatric illness, "most likely post-traumatic stress disorder," and posits that this is different to the diagnosis of Dr Canaris. That may be so, and ultimately may be something which casts doubt as to the veracity of her claim. But that is something that can be tested at hearing. It does not to my mind mean that the claim should not be brought. 7. Ultimately, looking at the evidence as a whole, the evidence by way of explanation for the withdrawal of the claim for psychiatric injury bespeaks a plaintiff who was not motivated to do all she could to extract the maximum possible in damages from the defendants. Rather, it speaks to a reluctance on her part to acknowledge the extent of harm to her despite the existence of evidence suggesting psychiatric or psychological injury. The renewed claim for such injury is consistent with her belated acknowledgment and understanding of the extent of that injury. 8. I accept that the defendants have not had the opportunity to have the plaintiff examined by a psychiatrist at an earlier stage as a result of the late attempt to reinstate the claim for psychiatric injury. To the extent that the plaintiff, if allowed to rely on the report of Dr Canaris, would obtain a forensic advantage, there is no suggestion that that would be a forensic advantage deliberately obtained. Forensically it would be an unwise strategy. There is firstly uncertainty as to whether a plaintiff in the position of this plaintiff would ultimately be allowed to rely on the amended claim. Secondly, the defendants will, no doubt, take forensic advantage of the plaintiff's disavowal of any psychiatric injury warranting inclusion in the claim as a result of the plaintiff's instructions to her solicitors in 2019 to exclude any claim for psychiatric injury. 9. The defendants do have access to a large volume of medical records dating from the time of the accident. Nonetheless, it is relevant to have regard to the fact that they may have had a psychiatrist examine the plaintiff at a significantly earlier time and they will consequently suffer prejudice as a result if the plaintiff is allowed to rely on Dr Canaris. 10. The defendants also point to the adverse impact on the costs of the proceedings if the plaintiff is allowed to rely on the report of Dr Canaris. That too is a relevant consideration. The defendants submit that those costs will include the need to qualify not only a psychiatrist but also a forensic psychologist. Whether experts in both fields will need to be engaged does not need to be determined by me today but can be resolved at further case management review of the matter. 11. There are clearly a number of considerations to be balanced. No doubt the issue could have been addressed significantly earlier. It would have been far preferable had that been done. Conversely, it is undesirable that the plaintiff should be shut out of seeking compensation for the entirety of harm done to her in the event that liability is established. 12. Ultimately, having regard to the various factors to be weighed in the balance, and particularly the time available between now and the hearing in August, I am of the view that leave should be granted to the plaintiff to rely on the report of Dr Canaris. 13. I turn then to the report of Dr Ridhalgh. As indicated earlier, the plaintiff originally retained Dr Michael Johnson. The plaintiff's explanation for engaging a different orthopaedic surgeon in Dr Ridhalgh is that attempts were first made to obtain a refresher medical examination with Dr Johnson. The plaintiff, however, objected to the fee for the consultation and report, that fee being $5,000 plus GST. As a result of the view of the plaintiff's solicitor that that fee was excessive, contact was made with Dr Ridhalgh who agreed to review the plaintiff and provide a report for $2,500 plus GST. 14. While the plaintiff's desire to control costs is laudable, the economic merit of the decision to engage a different orthopaedic surgeon might be doubted given the argument it has generated. The defendants point out that pursuant to UCPR r 31.19 the plaintiff was obliged to seek directions from the Court with respect to her intention to adduce evidence from a second orthopaedic expert but failed to do so. The defendants further point out that pursuant to UCPR r 31.20 the Court is empowered to limit the number of expert witnesses who may be called to give evidence on a specified issue. 15. The defendants submit that orders were made for the plaintiff to serve her primary expert evidence some years ago and as I have previously indicated, on 11 May 2022 she consented to a notation by the Court that she had in fact done so. The defendants submit that pursuant to UCPR r 31.28 she is not entitled to rely on the Ridhalgh report unless she can demonstrate that exceptional circumstances exist that warrant the granting of leave pursuant to UCPR r 31.28(4)(a). 16. As I have already indicated, some doubt attends to whether r 31.28 applies directly to this situation. Be that as it may, there is merit in applying at least the intent of that rule to the present situation. The present case is somewhat unusual. The plaintiff submits that she is not seeking to rely on two orthopaedic surgeons covering the same area, but rather has obtained an up to-date report from Dr Ridhalgh in the context of the earlier report from Dr Johnson. She stresses that the defendants have at all times known that she claims injury to her back and relies on the evidence of an orthopaedic surgeon. 17. Notably, the defendants advised in the course of the hearing that they would not object to a refresher report being obtained from Dr Johnson. That would be a report within the terms of r 31.28(4)(b). It is relevant to note, particularly in the light of that indication, that the plaintiff's counsel confirmed that Dr Johnson will not be called by the plaintiff at the hearing of the matter. 18. The impact of Dr Johnson not being called in relation to the admissibility of his report, or the use to which it might be put, will be a matter for the trial judge. But what the plaintiff's indication demonstrates to me is that it does not seem that the plaintiff is seeking to rely on two experts in the sense of two current experts covering the same field. Rather, the situation seems to be, at least in a practical sense, one of a single orthopaedic surgeon, that is, Dr Ridhalgh, in the context of an earlier report from 2019 that may be at best a matter of historical interest. 19. The situation is not the precise situation contemplated in r 31.28(4)(b) but it is to my mind broadly similar. Allowing the plaintiff to rely on the report of Dr Ridhalgh seems to me to be preferable to throwing away the time and expense involved in obtaining that report for the purposes of obtaining a further refresher report from Dr Johnson. In the circumstances, I am of the view that the situation is sufficiently exceptional such that the plaintiff should have leave to rely on the report of Dr Ridhalgh. 20. I turn then to the question of costs. The defendants submitted that even if the plaintiff is successful the defendants should nonetheless have their costs on the motion together with costs thrown away. The plaintiff submitted that costs should be in the cause; that these sorts of amendments to a plaintiff's case are in the nature of personal injury claims. 21. The defendants' criticisms of the plaintiff's conduct of the case, as I have indicated, have some merit. It is that conduct which has led to the motion before me. Whilst I would not allow costs thrown away, in my view, the defendants should at least be entitled to costs on the motion. I make the following orders: 1. The plaintiff has leave to rely on the report of Dr Christopher Canaris dated 23 August 2023. 2. The plaintiff has leave to rely on the report of Dr Mark Ridhalgh dated 22 September 2023. 3. The plaintiff has leave to rely on the report of Kayleen Engelsman, occupational therapist, dated 22 June 2023. 4. The plaintiff has leave to rely on the vocational assessment report of Eleanor Eshel dated 27 July 2023. 5. The plaintiff has leave to rely on the amended statement of particulars filed 18 October 2023. 6. The plaintiff is to pay the defendants' costs on the motion. ********** 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: 13 February 2024