Kalache v Secureclean Pty Ltd (No 1) [2019] NSWDC 716

District Court New South Wales

Medium Neutral Citation: Kalache v Secureclean Pty Ltd (No 1) [2019] NSWDC 716 Hearing dates: 14 August 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: The application by the second defendant is rejected. Catchwords: Evidence. Admissibility of medical report served on the evening before the commencement of the hearing. Prejudice suffered by other party. Whether omission to serve report by oversight "exceptional circumstances". Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Griffith v Kerkemeyer [1977] HCA 45 New South Wales v Tyszyk [2008] NSWCA 107 Category: Procedural and other rulings Parties: Klaudette Kalache (Plaintiff)

Secureclean Pty Ltd (Second Defendant) Representation: Counsel:

R. Lynch (Plaintiff)

O. Dinkha (Second Defendant)

Solicitors:

Gerard Malouf and Partner (Plaintiff)

HBA Legal (Second Defendant) File Number(s): 2017/00220928 Publication restriction: Nil.

Judgement 1. HIS HONOUR: The current proceedings concern an event which occurred on 14 June 2016 when the plaintiff was walking in the Stockland Mall at Wetherill Park. According to par 6 of the further amended statement of claim upon which the plaintiff relies, on that day the plaintiff and her husband were lawfully upon the premises for the purpose of shopping. As she walked within the common area of the shopping centre, she slipped on a liquid substance causing her to fall. The plaintiff brings an action for damages for personal injury. Initially, the only defendant was the occupier of the shopping centre. Those proceedings were commenced on 20 July 2017. On 3 September 2018 the plaintiff filed an amended statement of claim which inter alia joined the current defendant, originally the second defendant Secureclean Pty Ltd which company admits in the defence for further amended statement of claim that it was the contracted cleaning company at all material times at the shopping centre in which the plaintiff fell. 2. The plaintiff's solicitors qualified Dr Y Kai Lee an orthopaedic surgeon who prepared a report dated 19 October 2017. One would infer that the doctor examined the plaintiff on that day or shortly prior there to. The first defendant qualified Dr Seamus Dalton, a consultant in rehabilitation medicine. He examined the plaintiff on 26 June 2018 and prepared a report dated 30 July 2018. That report was addressed to the first defendant's solicitors. Clearly, that report was obtained prior to the joining of the current defendant, the second defendant. The first defendant's solicitors provided to the second defendant's solicitors a copy of Dr Dalton's report on 4 October 2018 and that can be ascertained from par 5 of the affidavit of Ms Natasha Fiodoroff affirmed on 14 August 2019 which is exhibit 1-1 on this application. On 17 December 2018 Ms Fiodoroff instructed a paralegal in her firm to serve a copy of the report of Dr Dalton on the plaintiff. That unfortunately was overlooked by the paralegal and that omission was not detected by Ms Fiodoroff. 3. In the meantime, the plaintiff and the first defendant reached agreement. A consent judgment was prepared and the plaintiff's solicitor signed his or her consent to it on 18 October 2018. The solicitor for the second defendant signed his or her consent to the document on 22 October 2018. It was filed on 22 November 2018 and passed under the seal of the Court. The terms of settlement provided that there was to be judgment for the first defendant against the plaintiff but there was to be no order as to costs. Accordingly it can be seen that in essence from 18 October 2018 as far as the plaintiff was concerned the first defendant was no longer a party to the proceedings. 4. On 22 November 2018, over a month after the plaintiff had signed her consent, through a solicitor, to the consent judgment in favour of the first defendant, and fortuitously on the same day as judgment was entered by the Court, the plaintiff's solicitors had sought to requalify Dr Y Kai Lee. They had arranged for a re-examination by the medical practitioner on 3 December 2018. The doctor was asked to prepare a "refresher report". The plaintiff's solicitors provided to Dr Y Kai Lee a report of a psychiatrist whom they had retained and a report of an occupational therapist whom they had retained but did not provide to Dr Y Kai Lee a copy of the report of Dr Dalton which had been served by the first defendant's solicitors on the plaintiff of 9 August 2018. 5. Significantly as at 22 November 2018, the second defendant had Dr Dalton's report but had not served it. The second defendant only served Dr Dalton's report yesterday. The second defendant now makes an application under UCPR 31.28. The second defendant seeks the leave of the Court to rely upon the report of Dr Seamus Dalton which was only served by the second defendant yesterday. Pursuant to UCPR 31.28(4) there must be exceptional circumstances to warrant the granting of leave. 6. The second defendant relies upon the fact that the second defendant qualified an occupational therapist Mr Peter Williamson who assessed the plaintiff on 15 January 2019 and prepared a report dated 11 February 2019 which was served by the second defendant's solicitors on the plaintiff's solicitors on 12 February 2019. That report records at par 1.8 that Mr Williamson had available to him, inter alia, the report of Dr Dalton of 30 July 2018 and the report of Dr Y Kai Lee of 19 October 2017. At par 3.1, Mr Williamson set out significant findings of Dr Lee and Dr Dalton and summarised Dr Dalton's clinical findings and his diagnoses as well as certain opinions as to causation. Again in par 6.6 Mr Williamson comments upon the assessments made inter alia by Dr Lee and Dr Dalton about the need for domestic assistance to be provided to the plaintiff. Having made his own assessments of what the plaintiff may be entitled to under Griffith v Kerkemeyer, Mr Williamson said this: "The above report is based on Ms Klaudette Kalache's presentation as demonstrated and reported on the day of assessment, and the medical reports of her physical condition as listed above." 1. The problem for the second defendant is that, not having served Dr Dalton's reports upon the plaintiff until yesterday, the plaintiff was unaware that the second defendant wished to rely upon Dr Dalton's report and therefore did not provide it to Dr Y Kai Lee, either at the time of the "refresher examination" on 3 December 2018 or at any time subsequently for either a comment on Dr Dalton's report or a further refresher medical examination during which Dr Dalton's report could be considered. 2. There is no dispute that the report of Mr Williamson has been served and although there may be objections to parts of the report, in essence the report will be admissible as an expert report. As I said, Mr Williamson is an occupational therapist. The plaintiff has also qualified an occupational therapist. Both the plaintiff and the second defendant have qualified a psychiatrist. However, the second defendant has not qualified any doctor in the same field or a similar field as Dr Y Kai Lee. Dr Y Kai Lee is an orthopaedic surgeon. 3. Dr Seamus Dalton is as I said a consultant in rehabilitation medicine. It is clear from the copy of his report that I have read that he carried out a physical examination of the plaintiff similar to a physical examination that would be carried out by an orthopaedic surgeon including an assessment of the plaintiff's nerves and a neurological examination is generally carried out by an orthopaedic surgeon. It is not limited to being carried out by a neurologist or a neurosurgeon. Dr Dalton himself carried out a neurological examination. In essence, Dr Lee and Dr Dalton are in the same specialist field. 4. Dr Dalton commented on the first report of Dr Lee and Dr Dalton's comments are both trenchant and powerful. However he has not been provided with Dr Lee's second report and has not accordingly made any comments on it. One would think that the plaintiff has been at all material times on notice that in essence the second defendant was relying upon Dr Dalton's reports because parts of Dr Dalton's report are extracted in the report of Mr Williamson which was served on 12 February 2018. I do not know what response there is, if any, by the plaintiff's experts to Mr Williamson's report. However the late service by the defendant has precluded the plaintiff from obtaining any opinion from Dr Y Kai Lee about the opinions expressed by Dr Dalton. In other words, were I to give the plaintiff leave under UCPR 31.28 there would be prejudice suffered by the plaintiff. 5. Furthermore the circumstances now in question could hardly be described as "exceptional". Clearly there was omission made by a paralegal in the second defendant's solicitor's office but those sorts of oversights are fairly common in many solicitors' offices. The second defendant had the benefit of Dr Dalton's report from 4 October 2018 and did not ensure that it was served at any time prior to the evening of the commencement of the hearing. Those are not in my view exceptional circumstances and if they might amount to that, those circumstances would be overcome by the prejudice suffered by the plaintiff. The learned counsel for the second defendant referred me to a decision in New South Wales v Tyszyk [2008] NSWCA 107. But it is clear from that case that the proposed tender would not give rise to any significant prejudice but in my view the proposed tender here would give rise or might give rise to significant prejudice to the plaintiff. 6. The application by the second defendant is accordingly rejected.