Bell by her tutor Angela Salmon v Rail Corporation NSW

HER HONOUR: This is an action for damages for personal injury arising out of a railway accident in which the plaintiff, while seated at the edge of a railway track, was hit by a train that had just left Gymea train station. The proceedings have been relisted today on the application of both parties for a determination by the Court as to a contest concerning the appropriate form of questions proposed for the liability experts.

Each party has qualified an engineer to address issues relating to the defendant's liability. Pre-trial directions were made for the two engineers to confer in advance of the trial and to provide a joint report to the Court. However, that process has been delayed by the failure of the parties to agree on the questions on which they should be asked to confer.

That contest has been determined this morning by a combination of my indicating what I regard to be the proper approach and the parties reacting to that indication with commendable cooperation. A position has been reached where the questions are now agreed on the understanding that the defendant's position is protected in respect of objections it has flagged will be taken at the hearing.

The approach I indicated I would take to determining the matters raised is that, in my view, the purpose of a conclave between opposing experts in the period leading up to the trial, and the requirement that a joint report be prepared, is to determine areas of common ground between the experts, such as to narrow the areas of contest at the trial.

The defendant objected to some of the questions proposed by the plaintiff on the basis that the answers to those questions would not be admissible at trial. I indicated my view that, whilst the defendant's position should be protected and preserved in that respect, any such contest should not be determined in the duty list but, rather, by the trial judge. Accordingly my approach was to take a broader scope as to the permissible questions and to preserve the parties’ entitlement to argue the ultimate determination of objections, such as those flagged by the defendant, before the trial judge.

Separately, one of the defendant's objections related to the extent of the plaintiff's expert's expertise. That foreshadowed objection has been taken into account in a reformulation of the question, again on the understanding that it remains open to contest that issue at trial.

On that understanding, the parties are agreed that the proposed questions for the liability experts will be as follows: