Turnbull v Kyogle Council [2024] NSWSC 342

Supreme Court New South Wales

Medium Neutral Citation: Turnbull v Kyogle Council [2024] NSWSC 342 Hearing dates: 3 April 2024 Date of orders: 3 April 2024 Decision date: 03 April 2024 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1. The plaintiff has leave to rely on the report of Dr Carnavas dated 13 November 2023 but only to the extent that the report concerns the manner in which the plaintiff was riding his motorcycle at the time of his accident, specifically including speed, braking and control of the motorcycle. 2. The plaintiff is to pay the defendant's costs of the notice of motion. Catchwords: CIVIL PROCEDURE – time – extension of time – notice of motion seeking leave to rely upon expert report – duplication with report of a separate expert – limited leave granted Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules (2005) NSW, rr 1.12, 31.28(4) Cases Cited: Kuypers v Ashton Coal Operations Pty Ltd & Anor [2015] NSWSC 1122 Category: Procedural rulings Parties: Simon Charles Turnbull (Plaintiff) Kyogle Council (Defendant) Representation: Counsel: Mr J Tryon (Plaintiff) Mr R Gambi (Defendant)

Solicitors: Somerville Laundry Lomax (Plaintiff) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2021/216575 Publication restriction: Nil

JUDGMENT 1. The plaintiff was riding his motorcycle on 5 May 2019 when he was injured in an accident on Summerland Way in Grevillia. The defendant is the local council having responsibility for the roadway at the scene of the accident. The plaintiff blames the defendant for his injuries, alleging that the defendant had negligently maintained the state of the roadway, including the use of appropriate signage. The plaintiff says the defendant should not have permitted there to be loose gravel associated with previous roadworks. 2. The plaintiff filed a statement of claim on 29 July 2021. 3. The defendant, by its defence, has denied negligence and raised specific defences under the Civil Liability Act 2002 (NSW). It has also alleged contributory negligence on the part of the plaintiff. The contributory negligence is directed towards the manner, including speed, in which the plaintiff was riding his motorcycle. 4. The plaintiff wishes to rely on an expert report of a Dr Carnavas dated 13 November 2023 in support of his allegations. The defendant opposes such reliance. 5. The defendant's opposition led the plaintiff to file a notice of motion on 6 February 2024 in which he seeks the leave of the court to rely on the above report. 6. The motion is supported by an affidavit of Mr Ben Crawford dated 6 February 2024. Mr Crawford is a solicitor acting on behalf of the plaintiff. 7. The defendant relies on an affidavit of its solicitor, Mr Matthew Gerathy, dated 16 February 2024. 8. The reason that the plaintiff needs leave is that on 14 March 2022 a direction was made that the plaintiff was to serve his expert liability evidence by 14 May 2022. On 16 May 2022 the plaintiff served an expert report of a Mr Gerard Coffey dated 30 March 2022. Notably the defence was filed on 4 May 2022 so that Mr Coffey had not considered any of the allegations of contributory negligence. 9. Mr Coffey's curriculum vitae (CV) indicates that he has an advanced diploma in engineering from the Canberra Institute of Technology and that his competencies and experience, in summary, include 28 years working in Local and Territory Government, knowledge and experience in roadwork maintenance and traffic control, management of roadways and supervision of bitumen sealing. 10. Consistent with his qualifications Mr Coffey's report concludes that there was loose aggregate on the roadway following tarmac spraying; that there was a "lack of after-care traffic control and signage"; that there had been "nonconforming work practices and methodology relating to the gravel patch stabilisation works"; and there had been a "nonconforming emulsion sealing process" at the site of the accident. 11. Mr Coffey concluded: "In conclusion, the actions of Council in conducting the Heavy Patch repairs in the manner in which they did and in absence of appropriate signage and other contributing nonconformance factors was, in my opinion, so unreasonable that no Council could have properly considered their acts or omissions to be a reasonable exercise of, or failure to exercise, their statutory powers." 1. The defendant was directed to serve its expert material by 31 January 2023. Adopting the plaintiff's method of being a little late, the defendant, on 6 February 2023 served a report of a Mr Grant Johnston of the same date. 2. Mr Johnston's CV indicates that he has a primary degree in civil engineering and a Masters degree in "Traffic and Pavements Engineering." In addition, he has a Graduate Diploma of Biomedical Engineering. 3. Mr Johnston's CV also sets out the many accident reconstruction courses he has completed. 4. In the course of his report, from [7.36], Mr Johnston specifically deals with the report of Mr Coffey. He ultimately disagrees "with many of the qualitative comments made by Mr Coffey." 5. In his ultimate conclusions Mr Johnston says the accident involved "a single vehicle loss of control … ." He acknowledges "that there was a failure of the resealing works with excessive loose aggregate present on the roadway particularly in the eastbound lane." However, he continues: "It appears however to be undisputed that the windrow was not the cause of the loss of control as it simply did not occur in the part of the lane. The forensic evidence appears to suggest that the departure from the roadway occurred as a result of rider braking in the area containing the scattering of loose stones as opposed to the motorcycle simply falling over in the windrow of loose aggregate. This braking occurred at the start of the second tighter part of the curve suggesting that independently of the loose aggregate on the roadway the rider may have misjudged the corner and not taken account of the reduced advisory speed as a result of the second smaller radius portion of the corner." 1. Clearly therefore, Mr Johnston while accepting some failings on the part of the defendant, squarely places the cause of the accident on the manner in which the plaintiff rode his motorcycle. Mr Johnston's report was the first time substance was given to the defendants allegations of contributory negligence. 2. Following receipt of Mr Johnston's report a second report was commissioned from Mr Coffey to answer Mr Johnston's report. The second report of Mr Coffey is dated 1 May 2023 and was served on 2 May 2023. In this report Mr Coffey concludes: "In summary, the critical area of disagreement with Mr Johnston's report is the disregard for Councils legal obligations regarding their RMCC with the RMS, Council's non-adherence to its own approved PMP and the non-compliance with the mandatory ITPs, particularly the Provision for Traffic ITP." 1. To possibly help explain the summary, I note: 1. RMCC is the Road Maintenance Council Contract; 2. RMS refers to the Roads and Maritime Service; 3. PMP is the defendant's Project Management Plan; and 4. ITP is the defendant's Inspection Test Plan. 1. The defendant submitted that Mr Coffey had actually carried out an accident reconstruction. I agree that he did so but only in the broadest terms. He does not consider specific aspects of the riding of the motorcycle from the riders perspective as to his speed, braking and control of the motor cycle. 2. The report of Dr Carnavas was served on 5 December 2023. Dr Carnavas has a Bachelors degree and PhD in mechanical engineering. He says that for the past 16 years he has "performed forensic investigations related to mechanical engineering … ." He continues: "I have been involved in more than 750 investigations. About a third of these have considered motor vehicle accidents." 3. The plaintiff's solicitors asked Dr Carnavas to consider four issues: "Issue 1. What risk of harm to the Plaintiff did the Council's patch repair on the subject road surface create? Issue 2. What you consider to be the cause of the Plaintiff's loss of control of his motorcycle based upon the material briefed. Issue 3. You might also please provide any disagreements you have with the report of Mr Johnston in respect of the manner in which the Plaintiff was riding and controlling his motorcycle at the relevant time as he traversed the loose gravel and entered the corner. Issue 4. Is it your opinion, based on the material provided, that the Plaintiff's motorcycle fell to the roadway, and travelled to its ultimate resting place as a result of the excess gravel as described being on the roadway as opposed to the Plaintiff misjudging the corner as suggested by Mr Grant Johnson." 1. The first issue differs little from the issues considered by Mr Coffey. The remaining three issues focus on the manner in which the plaintiff was riding his motorcycle and in particular on the opinion on this aspect given by Mr Johnston in his report. 2. In his conclusions Dr Carnavas makes a number of criticisms about the actions of the defendant in respect of signage, the effects of previous roadworks and the inability of a motorcycle rider "to identify denser patches of loose gravel in the centre of the roadway on or immediately adjacent to recently resurfaced roadway areas because there was insufficient contrast." 3. Dr Carnavas says he disagrees with Mr Johnston about the cause of the accident and "the adequacy of the Defendants signage." He ends: "I consider that the Accident was caused by the reduced friction of the roadway surface due to its contamination with loose gravel." 1. Dr Carnavas's conclusions are effectively an amalgam of his opinions about the defendants' actions in respect of the roadworks (particularly signage) and his reconstruction of the manner in which the plaintiff was riding his motorcycle. 2. The last directions hearing prior to the service of Dr Carnavas's report was on 7 September 2023. No mention was made on behalf of the plaintiff as to the possibility of a forthcoming report. It is conceded by the plaintiff that prior to the service of the report, no notice was given to the defendant. 3. There is no doubt that Dr Carnavas's report has been served outside of the time limits imposed by the Court. This means that an extension of time is required pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In deciding this question, I think the dictates of justice as between the parties should prevail. 4. The plaintiff also seeks leave pursuant to UCPR r 31.28(4). I agree with the defendant that this rule is not relevant to the issues at stake in this motion. I am primarily concerned with whether or not the plaintiff should be entitled to have a duplication of expert opinion on the defendant's liability. 5. Practice Note SC CL 1 deals with expert witnesses from [44]. This paragraph is otherwise not relevant. Paragraphs 45 and 46 are relevant. They state: "45. Where it is considered that an unnecessary expert has been qualified or is sought to be called to give evidence, the Court may: reject the tender of the expert's report; refuse to allow the expert to be called; and disallow any costs incurred in qualifying the expert, in having the expert's report prepared or in calling the expert to give evidence. 46. As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to: (a) one medical expert in any specialty, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant specialty concerning that disability; and (b) two experts of any other kind." 1. My reading of paras 45 and 46 is that a court can make restrictive orders where it considers an unnecessary expert has been retained, but, the necessity for there to be only one expert is limited to medical experts. Other than medical experts, the number is limited to two. 2. Applying paras 45 and 46 to the current matter and putting aside for the moment the delay and failure to give notice of Dr Carnavas's forthcoming report, I think the solution is to allow the report but only to the extent that it does not duplicate the areas of expertise covered by Mr Coffey. 3. The plaintiff submitted that I should allow him to rely on Dr Carnavas's report but leave questions of admissibility to the trial judge. This, it was submitted, was the approach taken by Campbell J in Kuypers v Ashton Coal Operations Pty Ltd & Anor [2015] NSWSC 1122. His Honour certainly made orders to that effect, but my reading of his reasons is that the questions he was reserving to the trial judge concerned technical aspects of evidence arising under the Evidence Act 1995 (NSW) and not any overall questions of admissibility. 4. The defendant is entitled to know the case it will have to meet at the hearing. It would not be a just solution to leave the overall question of admissibility to effectively the last minute. I also note that the parties are due to go to mediation on 24 May 2024. It will assist the attitude of both parties at the mediation to know the scope of the evidence that is respectively in their favour or against them. 5. The solution I have posed above effectively means that Dr Carnavas's report should be limited to his opinion about the plaintiff's manner of riding his motorcycle. Lest there be any doubt, this will specifically include questions concerning speed, braking and the plaintiff's control of his motorcycle. 6. No hearing date has yet been set, I think the relevance of the plaintiff acting without giving notice sounds more in costs than any other issue. For that reason, I intend to award the defendant the costs of this motion. The plaintiff should have notified the defendant that he considered that Mr Johnston's report covered matters beyond those covered by Mr Coffey and that consideration was being given to retaining an expert to deal with those matters that fell outside Mr Coffey's report. 7. I also note that Dr Carnavas had received preliminary instructions prior to 16 December 2021 but was never asked to carry out any reconstruction analysis until 5 October 2023. Once again, no explanation was provided for the delay in confirming his instructions after December 2021. 8. I make the following orders: 1. The plaintiff has leave to rely on the report of Dr Carnavas dated 13 November 2023 but only to the extent that the report concerns the manner in which the plaintiff was riding his motorcycle at the time of his accident, specifically including speed, braking and control of the motorcycle. 2. The plaintiff is to pay the defendant's costs of the notice of motion.