Zhang v Hardas [2018] NSWSC 219

Supreme Court New South Wales

Medium Neutral Citation: Zhang v Hardas [2018] NSWSC 219 Hearing dates: 22 February 2018 Decision date: 22 February 2018 Jurisdiction: Common Law Before: Leeming JA Decision: Admit the report of Dr Robert Cooke dated 7 August 2017 into evidence. Catchwords: PRACTICE – expert evidence – admissibility of expert's report served shortly before trial – requirement to obtain leave – whether exceptional circumstances established Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005, r 31 Category: Procedural and other rulings Parties: Yingjie Zhang (Plaintiff) George Hardas (Defendant) Representation: Counsel: C T Barry QC, E Grotte (Plaintiff) M Fordham SC, C P O'Neill (Defendant)

Solicitors: Walker Law Group (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2013/235239

EX TEMPORE Judgment 1. LEEMING JA: Today is the fourth day of the trial, set down for hearing over ten days. Flagged at the outset of the trial was a large objection to the expert report of Dr Robert Cooke, Senior Consultant Orthopaedic Surgeon, served in the plaintiff's case. He is the only orthopaedic surgeon giving evidence in the plaintiff's case. The essence of the dispute is that the plaintiff requires leave in order to tender his report, and the defendant contends that leave should not be granted. 2. The interlocutory history of this litigation, which need not be explained in any detail for present purposes (these reasons will be somewhat abbreviated as it is now 12 past 4 on Thursday afternoon, the Court is not sitting tomorrow and Dr Cooke who is in Queensland is presently scheduled to give evidence on Monday) led to repeated orders for the provision of his report being made in 2017, culminating in an order made in November 2017 that any expert evidence served after 25 December 2017 may not be relied upon. 3. Throughout that history, and at least in the second half of 2017, the plaintiff continued to advise that she would be relying upon Dr Cooke's report, and indeed a short report of 20 pages, described on its face as a draft, was provided in August 2017. Rule 31.28 of the Uniform Civil Procedure Rules applies. That rule relevantly 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 ... (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 ... (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. Thus subrule (3) precludes admitting the report unless leave is granted, while subrule (4) conditions the exercise of discretion pursuant to which leave may be granted. 2. I need to say something about the nature of the report that was served on 5 February 2018. The report as finalised is dated 7 August 2017, and I have heard unchallenged evidence that shortly after that date the report in its finalised form has been in the possession of the plaintiff's solicitors. I return to this below. 3. The report is some 153 pages. In light of delays (by that I intend no criticism) in relation to the production pursuant to a call of documents disclosed in the plaintiff solicitor's evidence this morning in support of this application, the Court has already dealt with, and at some length, numerous objections to the report without prejudice to the defendant's overriding objection to its entirety because of the late service. 4. The first section of the report, roughly speaking pages 2 to 24, deals with 40 questions which were asked and answered. To some considerable extent that evidence has been rejected. What has been admitted, and in particular the answers to questions 5, 6 and 7, are on my comparison roughly equivalent to those in the draft that was provided in the middle of last year. 5. The overwhelming bulk of the 153 page report comprises a history provided by Dr Cooke of Ms Zhang. 6. There is also, at pages 54 to 58, an account from the perspective of an orthopaedic surgeon of the operation of the "Activator" device used by the defendant chiropractor which is central to this trial. And there is also in answer to question 8 three or four pages of analysis not found in the draft report, likewise directed at a level of detail so far as I can see which is appropriate to the expertise of the doctor, as to the effect of the "Activator" device upon the various structures surrounding the spine. 7. I do not think that it can be said that the report "merely updates an earlier version of a report" that has been served, for two reasons – (1) the early report was only served as a draft, and (2) there are substantial new aspects of it, although it is also true to say that the answers to a majority of the questions are either identical or materially identical to those which were served some six months ago. 8. I proceed on the basis that it is necessary for the plaintiffs to satisfy me that there are exceptional circumstances that warrant the granting of the leave. The following matters contribute to there being exceptional circumstances in this case. 9. First, the reason that the report was served in February rather than last August is that on the uncontested evidence before me, the plaintiff, Ms Zhang, repeatedly instructed her solicitors not to do so. 10. The inability of the plaintiff's solicitors to obtain instructions is a recurring theme in the correspondence which has been placed before me in support of this application. The proceedings, indeed, disclose a number of unusual features, of which, for present purposes, it suffices to mention only two. The first is that a witness statement of no fewer than 1,060 paragraphs has been made by the plaintiff. The second is the joint report of two psychiatrists, Professors Robertson and Phillips, called by each side, and there is, in a case where a large number of matters are in issue, no dispute that Ms Zhang, today - and I would infer, in the second half of 2017 – "has many features of a depression spectrum disorder (probably a major depressive disorder), but also may have symptoms consistent with a somatic symptom disorder." The professors add that "both of those disorders are recognisable psychiatric disorders within DSM 5 nosology". 11. The plaintiff's case is that the alleged breach of duty by the defendant has been the factual cause, within the meaning of s 5D(1), of her psychiatric condition. That, of course, is not something to be determined on this application, nor shall I do so. But Mr Barry invites me to proceed on the basis that it is at least possible that the plaintiff's psychiatric condition is a contributing cause of the unusual instructions given by her in this proceeding. The result was that the plaintiff (contrary to s 56(3) of the Civil Procedure Act 2005 (NSW)) failed to comply with directions intended to bring about the smooth running of the trial. 12. Mr Fordham says, and quite correctly, that one cannot without more attribute the failure to obtain instructions to the more generalised psychiatric diagnosis that the professors have given. But the question for me is whether there are exceptional circumstances, and one contributing matter is the fact that this is a plaintiff who, on any view, is psychiatrically injured, who sues a defendant for damages for that psychiatric injury, and whose conduct in failing to give instructions to serve the report may well be connected with that psychiatric injury. That is scarcely a usual case. 13. Secondly, all that I have seen in this litigation over the last four days persuades me that those assisting the defendant are providing a high level of legal services towards his defence. I think the evidence does not state so expressly, but I am prepared to infer that appropriate experts have been retained to respond to the report of Dr Cooke which was repeatedly, throughout the second half of 2017, advised would be forthcoming and, indeed, had been supplied in draft. 14. The experts retained by the defendant within the scope of whose retainer I would infer fell the foreshadowed report of Dr Cooke, are Dr Rutkowski and Professor Anderson. The evidence before me points, very persuasively, to the timing difficulties that those two individuals are subject to having regard to the late service of Dr Cooke's report. That said, despite its very substantial volume, there is a high degree of overlap with the questions he answers in his final report compared to what Dr Rutkowski and Professor Anderson have now had since last August in draft. Importantly, it is not suggested that receipt into evidence of Dr Cooke's report will bring about a situation where the trial cannot proceed in a way that is fair to the defendants. 15. To the contrary, it has been acknowledged by Mr Fordham, with conspicuous candour, that, especially if leeway is given to adduce oral evidence in response, the trial will be able to proceed even if Dr Cooke's report is admitted. 16. The third matter is that doing the best I can, the long anticipated, although only belatedly served in final form, evidence of Dr Cooke is likely to prove far from peripheral. It appears to be centrally relevant to the issues before me. I interpolate, that may be one reason why the plaintiff, according to the evidence before me, has been concerned to continue to liaise with him and to delay the service of his report, and also perhaps why two experts both of whom are to give evidence before me next week, are available to the defendant to respond to it. 17. I note I have been told that this is a proceeding where the hearing date has been twice vacated, and it is common ground at the Bar table, so far as I understand it, that this is a trial in which every effort should be made for it to continue in the time that has been set down. 18. I am highly sympathetic to the defendant's position that much has been done by way of repeated application to this Court, as the timetable for production of evidence continually slipped. That is a matter that can, of course, be dealt with by way of costs, but as Mr Fordham rightly says, there comes a time when the late production of a report should simply be excluded. It is for that reason that the Uniform Civil Procedure Rules require exceptional circumstances to be made out in a case such as this. 19. Balancing all of those matters together, I think this is a case where exceptional circumstances have been made out. On the basis that, although nothing precise so far has been articulated, I will, through exercises of discretion, do whatever can be done to minimise the prejudice to the defendant, I am minded to grant the leave required to admit the report of Dr Robert Cooke dated 7 August 2017 into evidence.