Gene Daly v John Ryan

On Tuesday, 27 August 2019, in the course of sitting as duty Judge, I made a number of orders including an order that a trial date of 2 September 2019 be vacated and leave be granted to the plaintiff to rely on additional evidence in the proceedings. The defendant opposed the orders allowing the plaintiff to rely on the additional evidence but, in the circumstances, urged the Court to vacate the hearing date if the plaintiff was granted such leave. The plaintiff was also ordered to pay the costs of and incidental to its notice of motion to rely on additional evidence. I was unable to provide reasons on the day the orders were made. These are my reasons for making the orders.

The matter came before me, sitting as duty Judge, on the plaintiff's notice of motion seeking leave to rely on additional evidence. That evidence included additional expert evidence as well as further evidence from the plaintiff himself and two of his relatives concerning his medical history. The plaintiff brings a cause of action in negligence against the defendant following an incident on a rural property in which he was injured in the course of performing work. It is unnecessary, for present purposes, to consider the factual circumstances around his injury. The case proceeded in the usual way with experts providing reports on both sides as to the plaintiff's medical condition. The plaintiff retained a doctor, Dr Pillemer, who provided an opinion that the plaintiff's injuries were the result of the incident at work. The defendant retained an expert, Associate Professor Shatwell. Having obtained a medical history from the defendant, Associate Professor Shatwell’s view was that the plaintiff had a pre-existing injury that may have been exacerbated by the work incident but that the complications or disabilities from the work incident resolved after a few months.

At that stage, the battle lines of the litigation appeared to be clearly established. The question was whether the plaintiff's injuries were a result of the incident at work or, rather, whether he had a pre-existing injury and any injury sustained in the work incident resolved quickly. The matter was listed for hearing and various directions were made including that there be a conclave of the experts. In the course of the conclave, Dr Pillemer changed his initial opinion. There was a conclave report prepared which bears various dates. It appears the conclave was heard on 13 May 2019, that Associate Professor Shatwell signed the report on 14 May 2019 and that Dr Pillemer signed the joint report on 4 July 2019. On the face of the documents, the precise dates are not entirely clear. However, the plaintiff’s solicitor indicated that he received the conclave report on 8 July 2019.

At that stage of the proceedings, the defendant was entitled to take the view, and did take the view, that the issue around the plaintiff's pre-existing injury had been resolved in its favour.

However, on 8 August 2019 Dr Pillemer contacted the plaintiff’s solicitor (or the plaintiff’s solicitor contacted Dr Pillemer) and Dr Pillemer revised his opinion. A further report was prepared. The further report by Dr Pillemer is contrary to the opinion expressed in the joint conclave report and Dr Pillemer returned to the original opinion he held, namely that the plaintiff's injuries and disabilities were the result of the work related incident. It appears that the dispute between the parties on this issue involves, amongst other things, a consideration of the history provided by the plaintiff to the doctors and more generally. The plaintiff made an additional affidavit or evidence statement which sets out in considerable detail his medical history including the extent of his pre-existing injury. He also provided to the defendant, and seeks to rely on, statements from his wife and daughter. Those statements also relate to the plaintiff's pre-existing medical condition and disabilities.

There was some delay on the part of the plaintiff in bringing this action, noting that the case was listed for hearing on 2 September 2019.

The plaintiff's position, which I found to be somewhat unreasonable, was that the defendant should be in a position to meet the additional evidence at the hearing as scheduled. However, as counsel for the defendant pointed out, it had prepared the case on the understanding that the position stated in the conclave report was such that there was no dispute that the plaintiff had a pre-existing injury that was merely exacerbated rather than caused by the incident subject of the litigation. Further, that exacerbation of the injury resolved quickly so that the ongoing disability was the result of the pre-existing injuries. It pointed to a number of additional enquiries and investigations which it could have made had it been informed or aware that there was such a live issue in the proceedings.

Having said that, the defendant very reasonably took the view that it would be unfair or unrealistic to shut out the latest evidence of Dr Pillemer because it would present to the Court a false picture. Namely that the plaintiff’s expert shared Associate Professor Shatwell’s view when he does not. However, the histories taken by each of the doctors, but in particular Associate Professor Shatwell, disclosed other health care professionals with whom the defendant would be entitled to make inquiries before the hearing of the case.

The defendant had a greater concern around the additional lay evidence which, according to the defendant, involved the plaintiff attempting to rewrite his medical history and the narrative surrounding that history.

It is clear that the case cannot proceed on the basis of the joint conclave report and that Dr Pillemer must be entitled to express the view that he currently holds. Once that is accepted it seemed to me impossible for the case to proceed on the date listed. Further, once it was accepted that that date had to be vacated, it seemed equally clear that the plaintiff should not be shut out from presenting fully his evidence as to his medical history including the evidence of his relatives. The defendant will have the opportunity to test that evidence at the hearing and will have enough time to prepare for that exigency.

Because the application to produce the additional evidence came so late, the defendant was not in a position to indicate whether it would need to place additional evidence before the trial Court or whether it would simply rely on Dr Pillemer’s changing opinions and any inconsistencies within the plaintiff's version of his medical history. Accordingly, the defendant resisted the setting of a new trial date immediately, preferring that the plaintiff served its additional evidence and that the matter then go before the Registrar for further directions. Ultimately, I accepted that this was the most sensible and expeditious approach.

There was an argument about costs and whether the costs thrown away by the vacation of the trial date should be borne by the plaintiff. There was no real doubt that the plaintiff would have to pay the costs of and incidental to the notice of motion. Insufficient detail was known to me at the time, and the defendant's revised position is not known at this time, so I took the view that whilst the plaintiff should be required to pay the costs of and incidental to the notice of motion, the question of the costs thrown away by the vacation of the hearing date and the need (if any) to obtain additional evidence should be reserved to be determined by the trial Judge who will have a full and better understanding of the case.

For those reasons I made the following orders: