Quintano v B W Rose Pty Ltd [2008] NSWSC 956

New South Wales Supreme Court

CITATION : Quintano v B W Rose Pty Ltd [2008] NSWSC 956 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 July 08 JURISDICTION : Common Law Division Professional Negligence List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 July 2008

DECISION : Leave granted to plaintiff to adduce oral expert evidence in chief of Mr Walter.

CATCHWORDS : PROCEDURE – leave granted to adduce oral expert evidence in chief.

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules, r 31.28

CATEGORY : Procedural and other rulings

Luke Quintano (plaintiff) PARTIES : BW Rose Pty Ltd (first defendant) AWS Security Services Pty Ltd (second defendant)

FILE NUMBER(S) : SC 20130/04

COUNSEL : Mr H J Marshall SC w Mr D J Hooke (plaintiff) Mr S G Campbell SC w Mr A B Parker (second defendant)

SOLICITORS : Beilby Poulden Costello (plaintiff) Curwood & Partners (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

BRERETON J

Monday, 28 July 2008

20130/04 Luke Quintano v B W Rose Pty Ltd & 2 Ors

JUDGMENT (ex tempore; on admissibility of evidence; see page 446 of transcript) 1 HIS HONOUR: (NSW) Uniform Civil Procedure Rules, r 31.28(3), provides that, except by leave of the Court or by consent of the parties, the oral evidence-in-chief of any expert is not admissible unless an expert's report served in accordance with the Rules contains the substance of the matter sought to be adduced in evidence. Sub-rule (4) further provides that leave is not to be given as referred to in sub-rule (3), unless the Court is satisfied that there are exceptional circumstances that warrant the granting of leave, or that the report contains merely updates of an earlier version of a report. 2 Mr Walter, a horse trainer, has been asked in chief to express an opinion based on certain assumptions that have been put to him as to the prospects of the plaintiff in his present condition obtaining employment in the racing industry as a trainer. It is not seriously in doubt that that is a matter of opinion, and involves the giving of expert evidence. No report has been served of Mr Walter at all, let alone one that contains the substance of the matters sought to be adduced. 3 In the cross-examination of the plaintiff, and more particularly his father, the second defendant's counsel has suggested that the plaintiff could, despite his disabilities, have some prospects of obtaining employment as a trainer or entering into partnership with another trainer. Although one does not know for certain, it seems unlikely that the defendant will be adducing affirmative evidence to that effect, but it may; I simply do not know at this stage. 4 Nonetheless, the second defendant has raised a case and put to the plaintiff's witnesses a suggestion that that is a possible scenario. That goes beyond testing the claims made in the statement of particulars, which are concerned with how the plaintiff would have progressed in the industry but for his injuries, coupled with an assertion that he is now permanently unfit for employment. 5 It seems to me that the plaintiff should be permitted to answer the case which has now been put without prior notice to the plaintiff's witnesses, by asking this witness a question along the lines contemplated. The circumstance that the defendant has put to the plaintiff a scenario not so far raised in the evidence is a sufficiently exceptional circumstance to justify the grant of leave in this respect under r 31.28. **********