Le v Brown; Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown

HER HONOUR: On 28 June 2012, a motor vehicle accident occurred when a prime mover hauling a side-loader bearing a sea container rolled as it turned left off the Hume Highway onto Orange Grove Road, colliding with a number of vehicles. The container had been imported from China, entering Australia at Port Botany. It contained a product in the nature of plastic wood.

Five sets of proceedings for damages for personal injury have been commenced in this Court arising out of that accident. The principal defendants to the proceedings, leaving aside issues of subrogation on the part of various insurers, are the driver of the truck, Mr Brown, and the consignor in Australia of the imported container, Futurewood Pty Ltd.

The proceedings are ready for trial and are listed for hearing on the issue of liability only with an estimate of 5 days commencing on 8 May 2017.

On 15 December 2015, the parties were ordered to serve their liability expert evidence by 29 April 2016. Futurewood now applies for leave to serve an additional expert report being the report of a mechanical engineer, Mr William Bailey. The only party that opposes the leave sought is Mr Brown.

The application is brought by notice of motion filed 13 December 2016 and came before me as Duty Judge on 20 February 2017. The notice of motion does not expressly refer to the power invoked. The relevant rule appears to be r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (in accordance with the provisions of that rule, the application might have sought an extension of time rather than “leave” but nothing turns on that). Rule 31.28 provides:

Part 31 makes extensive provision for close supervision by the Court of parties' reliance upon expert reports. Its plain intention is to contain waste of cost and court time, a vice perceived to have developed owing to a practice of retaining more experts than were needed or fairly warranted by the issues in the proceedings.

The provisions of pt 31 complement the provisions of pt 6 of the Civil Procedure Act 2005 (NSW), which identifies the overriding purpose of the Act and rules of court as being to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Regard must also be had in this context to the contents of Practice Note SC CL 5, which governs proceedings in the General Case Management List in the Common Law Division. The Practice Note contemplates that a party should ordinarily be confined to using two experts in any one field. Clauses 33 and 34 of the Practice Note provide:

The principal issue in the proceedings concerning liability is whether the prime mover and the side-loader rolled due to "load shift" or due to the speed at which the driver was travelling (or, which seems not improbable, a combination of the two). Mr Brown contends that the proposed new report introduces a third potential factor raising a new issue, namely, whether the container ought to have been loaded onto a side-loader, as it was.

The evidence suggests that there are in the industry essentially two kinds of trailers which can be hauled by a prime mover carrying a sea container, a side-loader and what is known as a skel trailer. It was submitted on behalf of Mr Brown that the introduction of the proposed new report will introduce into the proceedings a question whether, owing to the higher centre of gravity of a container loaded onto a side-loader (which, in turn, calls for either a lower weight, or travel at a lower speed, or both), the driver ought to have taken certain steps such as inspecting the inside contents of the container, choosing a different kind of trailer or driving differently. In short, the report potentially raises a new basis of liability on the part of the driver.

A number of mechanical engineers have already provided reports on the issue of liability in the proceedings. The existing reports are conveniently summarised in an annexure to the affidavit of Julia Brabant sworn 17 February 2017 in support of the application.

It is necessary to explain that, before the order for service of liability expert evidence was made in these proceedings, proceedings were heard by Magistrate Stapleton against Futurewood relating to its liability as consignor of the container for breaches of the road transport legislation (specifically, breach of a load restraint requirement). Three reports, all prepared by mechanical engineers, were relied upon by Futurewood in those proceedings. Until now, the approach of the solicitors representing Futurewood in these proceedings has been to rely upon the same material.

According to the schedule prepared by Ms Brabant, the first report served in these proceedings was served by the solicitors representing three of the plaintiffs, being the report of an engineer specialising in transportation, Mr John Jamieson of Jamieson Foley. In May 2016, the solicitors acting for another plaintiff served the reports of Mr Mike Robertson, also an engineer specialising in transportation. The same solicitors also re-served the Jamieson Foley report. The solicitor for the fifth plaintiff also re-served Mr Jamieson’s report.

On 4 July 2016, Futurewood served the reports of the three experts upon whom it had relied in the Local Court proceedings, Dr Tim White, Mr Amandeep Gill and Mr Richard Larson, all mechanical engineers. All of the plaintiffs have re-served some or all of those reports.

In August 2016, the solicitors acting for Mr Brown, the driver of the truck, served further reports by Mr Robertson.

Futurewood served a preliminary report by the proposed new expert, Mr Bailey, on 16 December 2016. The notice of motion bringing the present application was filed shortly before that date.

The issues addressed in the reports served before the provision of Mr Bailey’s preliminary report are conveniently collected in paragraph 5 of the written submissions of Mr O'Keefe, who appears for Mr Brown. That material may be summarised as follows:

Mr O’Keefe’s submissions drew attention to Mr Bailey’s report at pages 229 to 230 of Mr Vardanega’s affidavit. Mr Bailey said “the declared weight of the container indicated it was too heavy to be carried lawfully on the subject vehicle”. He expressed the opinion that “competent drivers and competent freight dispatchers should be aware of the real increase in risk of rollover when operating a side-loader trailer at or beyond the maximum freight capacity” and should take additional care to travel more slowly in that circumstance. He interpreted the telematic data as indicating that the trailer was moving at 50km/h or faster when it entered the central part of the curve. He concluded that the cargo as packed was not a factor that caused the vehicle to roll because it was travelling too fast to prevent rolling even if it was not overweight and the load was secured.

The explanation for seeking to rely on the new report of Mr Bailey was addressed in Ms Brabant's affidavit at paras 23 to 26. In short, Ms Brabant explained that she assumed conduct of these proceedings late last year and that, in doing so, she noted that her predecessor, a solicitor at the same firm, in the course of considering new pleadings, had considered it appropriate to arrange a conference by Skype with a gentleman who lives in China, Mr Xue. Ms Brabant conducted that conference. During the course of it, she says, Mr Xue, "expressed the opinion that the load had been pushed up tight on the far side of the container".

It was explained in oral submissions that the reference to the far side of the container is a reference to the front end of the container. Ms Brabant considered that was contrary to the evidence of Mr Robertson. As a result of her conference with Mr Xue, Ms Brabant considered it appropriate to have the assumptions made by Mr Robertson reviewed independently. It is not clear to me that the information provided by Mr Xue was contrary to any assumption made by Mr Robertson but, even if it was, it was open to Futurewood to address the issue by going back to its existing experts.

During argument on the application, I pressed counsel for Futurewood, Mr Hull, as to the reason for choosing Mr Bailey and for choosing him so recently. It emerged that an aspect of that decision was the familiarity of those representing Futurewood with Mr Bailey's services. I do not use the term "familiarity" in any pejorative sense there, but only to explain that it appears to me to have been a decision driven by considerations of lawyers wishing to work with an expert with whom they have experience: ultimately, in short, a question of forensic choice.

Mr Hull submitted that much of the material in Mr Bailey's proposed report, rather than introducing any new issues, simply introduces a new slant on issues that have been known to the parties from the outset or, at least, for a considerable period of time. The proposition appeared to be that a party is entitled to run the best case it can at any stage and at any cost. That is contrary to the approach dictated by the legislative provisions and the provisions of the Practice Note to which I have referred. It is also contrary to the approach dictated by the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, relied upon by Mr Brown. The written submissions set out lengthy passages from that decision. It is perhaps enough to recite the words of Chief Justice French at [30] as follows:

While it is not presently apprehended that Mr Bailey’s report will prompt vacation of the hearing date in the present case, in my view there is real prejudice to Mr Brown in permitting it to be relied upon at this stage. In some respects, the prejudice is intangible but one can, at least, be confident that the report will generate a round of amendments to the pleadings and will introduce new issues (including a wholly new ground for holding Mr Brown liable). That, in turn, will occasion the need for lawyers and the existing experts to spend additional time considering the new issues and revising material previously prepared, incurring additional costs, all during the important period of preparation leading up to the scheduled hearing.

In all the circumstances I am not persuaded that it is appropriate to grant the leave sought. The application is refused.