Supreme Court New South Wales Medium Neutral Citation: Dailhou v Kelly; State of NSW (NSW Department of Education & Training) v Kelly (No 1) [2014] NSWSC 1213 Hearing dates: 26 August 2014 Decision date: 26 August 2014 Jurisdiction: Common Law Before: Adamson J Decision: Allow the report of Dr Buckley on the basis of life expectancy. Catchwords: CASE MANAGEMENT - the importance of directions regarding expert reports and joint conclave - report served outside these directions admitted but use limited to single issue Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Proceedings No: 2010/158994 Peter Michael Dailhou (Plaintiff) Maurice Kelly (Defendant) Proceedings No: 2011/233293 State of New South Wales (NSW Department of Education & Training) (Plaintiff) Maurice Kelly (Defendant) Representation: Counsel: Proceedings No: 2010/158994 E Welsh/N Tzatzagos (Plaintiff) R Cavanagh SC/CJ Callaway (Defendant) Proceedings No: 2011/233293 A Combe (Plaintiff) R Cavanagh SC/ CJ Callaway (Defendant) Solicitors: Proceedings 2010/158994 Federation Law Pty Limited (Plaintiff) McCabes Lawyers Pty Ltd (1st and 2nd Defendants) Proceedings 2011/233293 Rankin Ellison Lawyers (Plaintiff) McCabes Lawyers Pty Limited (1st and 2nd Defendants) File Number(s): 2010/158994; 2011/233293 Judgment Objection to report of Dr Stephen Buckley dated 29/04/14 1Objection is taken by the defendants to the report of Dr Stephen Buckley dated 29 April 2014, except insofar as Dr Buckley opines on the life expectancy of the plaintiff. 2Mr Cavanagh SC, who appears on behalf of the defendants, submitted that detailed directions were made by this Court which required experts to meet in conclave concerning the injuries sustained by the plaintiff in the fall the subject of the proceedings which occurred on 25 June 2007. 3On 5 February 2014, a direction was made that the plaintiff was to serve a report on life expectancy by 14 April 2014. That did not occur. However, when the matter came before the Court on 12 March 2014, an extension of time was granted and the Registrar directed the plaintiff to serve a medical report on life expectancy by 20 May 2014 and made consequential directions relating to the meeting in conclave of life expectancy experts, who were Dr Buckley on behalf of the plaintiff and Dr Slezak on behalf of the defendants. 4The plaintiff served the report of Dr Buckley on 29 May 2014. No point is taken about its having been served nine days outside the directed time. However, the objection is that Dr Buckley has opined in his report dated 29 April 2014 on matters which are outside his remit relating to life expectancy. He expresses views in that report which pertain to the causation of the accident, injury suffered in the accident, investigations carried out and examinations carried out by Dr Buckley, causation, prognosis, requirements for care, exercise, handyman and fitness for work. These matters are objected to on the basis that Dr Buckley did not participate in the joint conclave of experts which was attended by Dr Bodel, an orthopaedic surgeon qualified by the plaintiffs, Dr Schutz, an orthopaedic surgeon retained by McDonald's (who were the defendants in other proceedings which have been resolved but which were to be heard together with these proceedings), and two orthopaedic surgeons qualified by the defendants: Dr Caldwell, who specialises in the knee and Dr Burrow, who specialises in the shoulder. 5Although it might be said that the evidence of Dr Buckley ought be taken into account since he has examined the plaintiff and expressed an opinion, it would, in my view, not be consistent with the principles of case management and efficient conduct of the proceedings which are provided for in the Civil Procedure Act 2005 (NSW ) to allow his report to be relied upon on all issues. Directions made by the Court for the orderly and efficient conduct of proceedings ought not be ridden over roughshod by parties who serve reports of experts who have not participated in the joint conclave process. 6Accordingly, I propose to allow the report of Dr Buckley on the basis of life expectancy, but not as to the other matters. However, I do not consider it to be practical to segregate the opinion on life expectancy from the body of the report since there may be matters in the body of the report that are germane to the opinion on life expectancy. Accordingly, the report of Dr Buckley will be admitted in its entirety, but its use will be limited to the issue of life expectancy. ********** 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: 03 September 2014