Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian

1. [1]

   McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. [2]

   MACFARLAN JA: I agree with Leeming JA.

3. [3]

   LEEMING JA: Ms Mary Khedrlarian claimed that she suffered injury at her workplace on 27 February 2011. She was employed by Demand Personnel Pty Ltd, a labour hire company, but was working in premises occupied by Bauer Media Pty Ltd, which traded as “Network Services Company” at Moorebank. Her work involved the repetitive lifting of bundles of magazines at a conveyor belt. As will be seen below, substantial difficulties confront any attempt to summarise with any precision what she had been doing on 27 February 2011.

4. [4]

   Ms Khedrlarian sued both companies in the District Court. Her claim against Demand Personnel was for “modified common law damages” pursuant to Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW), to which the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f). On the third day of the hearing, the primary judge recorded that “Demand announced that it may be in administration or possibly in liquidation”. In an appeal in which issue was taken with almost every aspect of the orders made by the primary judge, no dispute was raised in relation to the substitution of the Workers Compensation Nominal Insurer for the second defendant, and I shall refer to the two defendants as “Network” and “the Nominal Insurer” respectively.

5. [5]

   A trial took place over five days from 13-17 November 2017. The primary judge delivered an oral judgment on Monday 20 November 2017 in which his Honour found that there should be judgment in favour of Ms Khedrlarian against both defendants. His Honour made findings relating to non-economic loss, out-of-pocket expenses, domestic assistance, future care and past and future wage loss which enabled the parties to calculate judgments in the amount of $544,885.13 against Network and $497,585 against the Nominal Insurer. Those calculations reflected (a) the different measures of damages available against each defendant, (b) the fact that workers compensation payments were to be repaid in the amount of $104,269 pursuant to s 151A of the Workers Compensation Act and (c) the apportionment of liability between the defendants made by his Honour, two-thirds to Network and one-third to the Nominal Insurer, as modified by s 151Z of the same Act.

6. [6]

   Network has appealed. No fewer than 21 grounds were ultimately pressed (two were abandoned during the hearing). Two grounds (grounds 1 and 2) related to the failure to exclude all or parts of an expert report tendered by Ms Khedrlarian. Three of the grounds (grounds 5-7) challenged the findings of breach of duty, insofar as his Honour had found that Network had (a) failed to undertake any form of risk assessment, (b) failed to implement a system of rotation in the workplace, (c) failed to supervise and instruct Ms Khedrlarian and (d) failed to instruct her in the use of a hook knife. Grounds 8 and 9 maintained that the primary judge had erred in failing to deal with causation under s 5D of the Civil Liability Act, and had erred in impliedly finding that any breach of duty was causative of Ms Khedrlarian’s injury. Ground 10 challenged the apportionment of damages between the defendants. The remaining 13 grounds challenged the quantification of her loss.

7. [7]

   The Nominal Insurer has by cross-appeal raised substantially the same challenges to the findings of liability made by the primary judge. It sought to maintain the apportionment ordered by the primary judge. It made a more confined challenge to his Honour’s findings of damages.

8. [8]

   For the reasons which follow, I have concluded that both appeals must be allowed. Somewhat unusually, the most convenient course is to commence with the reasons of the primary judge, so as to explain why each of the grounds of appeal based on breach and causation is established. In order to explain why it is impossible to address the other grounds, and why a retrial is unavoidable, it will be necessary then to turn to the competing evidence and the absence of many findings of primary fact.

The reasons of the primary judge

1. [9]

   The revised reasons of the primary judge occupy 35 double-spaced pages. Most of the first two pages deal with procedural matters. Pages 2-13, under the heading “Facts”, deal with seemingly uncontroversial aspects of the general nature of the work performed, and then the plaintiff’s history of the events of 27 February 2011 and her consultations with various medical practitioners thereafter. In relation to most of that history, the judgment reads as a series of findings.

2. [10]

   Ms Khedrlarian was, in 2011 a 52-year-old widow, who had been born in Lebanon and educated until she was around 12 years old. She gave evidence in part in English but in part via an interpreter.

3. [11]

   It is uncontroversial that, as the primary judge recorded at pp 2-3, Ms Khedrlarian had been employed by a labour hire company since 2006 and from that time had been working at premises occupied by Network, first at Villawood and then at Moorebank. The primary judge recorded that there were two sorts of work:

4. [12]

   The primary judge stated that some eight months before February 2011, a new form of knife, a “hook knife”, was introduced to be used to cut the straps or tapes holding magazines together. That too seems to have been uncontroversial, although whether Ms Khedrlarian was trained in its use was and is in issue. She gave evidence in chief that when she was cutting the straps with the hook knife, she felt “electric” feelings in her arms.

5. [13]

   It is uncontroversial that Ms Khedrlarian’s last day at work was 27 February 2011, and that later that year, in July, she made a workers compensation claim based on an incident on that day. That claim was preceded first by a solicitor’s letter dated 28 March 2011 requesting a copy of the claim said to have been completed at the time, and secondly by a series of letters dated early May 2011 by Ms Khedrlarian’s current solicitors also asking for details of her claims, to which the response was made that “No Incident Report or Injury Report completed or submitted”.

6. [14]

   In relation to the actual events of 27 February 2011, the judgment is phrased in terms of Ms Khedrlarian’s testimonial evidence. Those passages are as follows:

7. [15]

   The primary judge also recorded Ms Khedrlarian’s evidence as to how her work involved her lifting bundles of magazines and cutting the straps holding them as follows:

8. [16]

   Mr Neil QC, who with Mr Chrysostomou appeared for Ms Khedrlarian, confirmed that he did not seek to read those passages as amounting to findings, as opposed to a recitation of his client’s evidence. That concession was properly made. The contrast in the language of the reasons, which shifts from statement of (uncontroversial) background to recitation of Ms Khedrlarian’s (controversial) evidence, is quite striking.

9. [17]

   Under the heading “Plaintiff’s Disability” — an area hotly in contest at trial — the reasons were once again framed almost wholly in terms of what Ms Khedrlarian said she could or could not do. The judgment then summarised the evidence of Ms Sylvia Khedrlarian, the plaintiff’s daughter, the expert evidence of Mr David Cockbain (which is relevant to grounds 1 and 2 and which may be deferred until those grounds are addressed), and the lay evidence of Ms Joanne Usher (formerly employed by Demand Personnel) and Mr Ryan Martin (production manager with Network). Both Ms Usher and Mr Martin had seemingly given evidence at interviews conducted by a representative of Allianz in its capacity as the workers compensation insurer. Their statements were fairly short and dated 14 and 15 December 2011. Ms Usher’s statement attached the solicitor’s correspondence referred to above and other documents referred to below. Both referred to how Ms Khedrlarian was rotated and supervised, to which reference will be made below.

10. [18]

    Under a separate heading “Findings”, there follows a passage occupying slightly less than two pages between pages 24-26. Despite its heading, the section contains no “findings” as such. Instead, it reproduces various uncontroversial propositions of law, as to the duties owed by an employer and a host employer. No criticism was expressed as to the formulation of those duties. They closely adhered to paragraphs 1-6 of the plaintiff’s written submissions. However, the reasons did not go on to mention the principles governing breach or causation set out on the following pages of those written submissions.

11. [19]

    The final section in the judgment dealing with liability was headed “Breach of Duty of Care”. All parties addressed this section at length in their submissions on appeal. It is convenient to reproduce the entirety of this section, which occupies less than a single page:

12. [20]

    The remaining nine pages of the judgment deal with quantification of damages, although in two places reference is arguably made to questions of breach and causation. The primary judge preferred the evidence of the plaintiff’s medical experts (on the basis that “they have seen the plaintiff more consistently”). His Honour concluded that:

13. [21]

    The primary judge then dealt with the issue whether Ms Khedrlarian’s inability to work arose from her lower back condition, a matter as to which she was cross-examined at some length, and the primary judge concluded as follows:

The findings of breach must be set aside

1. [22]

   The entirety of his Honour’s reasons on breach of duty of care has been reproduced above. Those reasons appear to identify four breaches of duty, relating to (a) rotation, (b) supervision, (c) training and (d) risk assessment.

2. [23]

   Three sentences were directed to rotation. The primary judge drew a contrast between the “system of rotation” in the evidence of Mr Ryan and Ms Usher, but concluded that there was “no evidence that in practice, the system was actually implemented”. That finding that rotation was not implemented may well have been available, but it was incorrect to proceed on the basis that Mr Ryan and Ms Usher’s evidence was confined to evidence of the system, as opposed to what actually happened when Ms Khedrlarian was working. Ms Usher’s evidence was:

3. [24]

   This portion of Mr Martin’s evidence was reproduced verbatim by the primary judge, and on one view might be regarded as confined to evidence of system. I doubt that is the preferable view, because the middle paragraph is directed to Ms Khedrlarian personally. However, Ms Usher’s evidence, which was not reproduced by the primary judge, was explicitly directed to Ms Khedrlarian’s rotation. It is impossible to reconcile that evidence with his Honour’s statement that there is no evidence that rotation was implemented in practice. Further, the primary judge appears to have paid no regard to the safety checklists in evidence, each of which recorded that rotation of tasks was used to avoid repetitive works (see below).

4. [25]

   In relation to supervision, Ms Usher had said in her statement:

5. [26]

   This passage of her statement was not mentioned by the primary judge. It amounted to unchallenged evidence of supervision. Further, Ms Khedrlarian described Mr Martin as a “supervisor” in cross-examination. She gave evidence as follows:

6. [27]

   Once again, there was a conflict in the evidence as to supervision.

7. [28]

   In relation to training, Ms Usher’s statement annexed copies of the training courses undertaken by staff, including a document apparently signed by Ms Khedrlarian on 16 November 2009 headed “Safe Cutting Techniques incl; handout of Network Services Operating Procedure for Safety Knives” and “Manual Handling”. The document addressed those issues. That is the document to which the primary judge referred, and it is true that there was no evidence of any document as to training with a hook knife.

8. [29]

   However, contrary to the finding by the primary judge, there was also evidence that Ms Khedrlarian was given some instruction in relation to the use of a hook knife. The change from a stanley knife to a hook knife was not a matter which had been pleaded, but was introduced in the plaintiff’s evidence in-chief, without objection, as follows:

9. [30]

   In relation to risk assessment, Ms Usher’s statement annexed to it a number of “safety checklists”, which I would regard as covering at least in part the function of a risk assessment. One dated 3 February 2011 (less than four weeks before the incident) asked and answered 71 questions, including the following items:

10. [31]

    Another of the safety checklists was dated 24 September 2009. It included the following items:

11. [32]

    So far as I can see, there was no evidence explaining the different answers to the first question reproduced above from the 2009 and 2011 checklists. Nor was there evidence as to what use was then made of the completed checklists, although Ms Usher’s evidence discloses that there was an “OH&S Committee”.

12. [33]

    Thus, at least in relation to the issues of rotation, supervision and training, there was competing evidence contrary to the findings made by the primary judge, to which his Honour appears to have had no regard.

13. [34]

    Further, the statements of Ms Usher and Mr Ryan were tendered by the plaintiff, at the instigation of counsel for Network, on the basis that they had been provided to Mr Cockbain. They had been prepared for a different purpose, but no limiting order was sought or made under s 136 of the Evidence Act 1995 (NSW). There was no cross-examination. They addressed each of the four matters found by the primary judge to amount to breaches.

14. [35]

    True it is that there was evidence given by Ms Khedrlarian, almost seven years after the event, that she worked each three-hour stint at the same place. However, there was no attempt in the reasons of the primary judge to reconcile the unchallenged evidence of Mr Martin and Ms Usher with what Ms Khedrlarian had said. Nor was there any attempt to reconcile the finding that there was “no supervision of the plaintiff at any stage in her work” with what had been said by Mr Martin and Ms Usher.

15. [36]

    As Ipp JA stated in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28], it is not sufficient to set out the conflicting bodies of evidence and conclude, without analysis, that the judge prefers one body to another. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:

16. [37]

    In relation to rotation and supervision, at trial Network made submissions based on the unchallenged evidence of Mr Martin and Ms Usher. These were neither recorded nor addressed.

17. [38]

    In relation to training with the hook knife, the evidence was limited, but pointed squarely to some measure of training being provided. Whether or not the training was adequate is a separate issue, but it was wrong to say that there was no evidence that any instruction was given.

18. [39]

    In relation to risk assessment, once again Network made submissions based upon the existence of an OH&S Committee and the completion of the risk checklists. Once again, these were neither recorded nor addressed.

19. [40]

    I conclude that the process of making each of the four findings of breach has miscarried. All were inconsistent with competing evidence which appears not to have been considered by the primary judge. The findings as to rotation, supervision and training turn upon a rejection of unchallenged testimonial evidence (either of Ms Usher and Mr Martin, in the case of rotation and supervision, whose statements were tendered by the plaintiff, or of Ms Khedrlarian herself, in the case of training). The finding as to risk assessment is more finely balanced, but in my view more was required than is found in the reasons to conclude that the forms which seem regularly to have been completed and retained were merely discarded without thought being had to attending to the risks, and that the OH&S Committee was entirely ineffectual.

Which findings of breach were causally connected to Ms Khedrlarian’s injury?

1. [41]

   Secondly, it is unclear whether the primary judge regarded the four findings of breach as being each individually causative of damage, or cumulatively caused damage. Mr Neil maintained that the judgment could be supported on any of the findings individually, but if necessary he relied upon them collectively.

2. [42]

   It is certainly conceivable that the failure to rotate between repetitive jobs could be causative of injury to Ms Khedrlarian. In the case of the alleged failure to train as to the use of the hook knife, causation is possible, but would seem to involve intermediate findings as to the mechanism of the injury and the consequences of the training. It is somewhat harder to see how the breaches based on risk assessment or failure to supervise could be causative of injury, at least without further intermediate findings.

3. [43]

   But at no stage in the reasons of the primary judge were the individual breaches ever connected with Ms Khedrlarian’s injury. In reaching that conclusion, I have had regard to the paragraphs in the section of the reasons addressing quantification (which are reproduced above), especially the last:

4. [44]

   I do not regard that passage as a separate finding as to liability, although certainly the note in the second sentence is directed to the reasonableness of a response (albeit seemingly by both defendants). But the passage is to be read as a whole. It is in a section dealing with quantification, as is reflected in the opening words “takes into account”. The passage is naturally read as looking back to findings already made, rather than as a supplementary finding of breach made in the middle of the section dealing with quantification of damages. I accept that an alternative reading is available, but even if it is, that does not deal with the substantial problem of the absence of meaningful findings of causation, to which I now turn.

No findings of causation

1. [45]

   The principal reason for the absence of clarity is that, on a fair view, nowhere in the judgment is there any analysis of causation. In the case of Ms Khedrlarian’s claim against Network, that analysis was governed by s 5D of the Civil Liability Act, and would have involved findings of factual causation and scope of liability. It would also have involved grappling with the notion of “risk of harm” in s 5B of that statute. In relation to Ms Khedrlarian’s claim against the nominal insurer, the analysis in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 for breach and March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 for causation would apply. As it happens, the analysis would probably have been similar at common law and pursuant to statute: cf Vincent v Woolworths Ltd [2016] NSWCA 40 at [48].

2. [46]

   Nowhere is it explained why, but for the absence of rotation, or supervision, or training, or effective risk assessment, Ms Khedrlarian’s injury would not have occurred.

3. [47]

   To be fair, the pleadings did not assist. The drafters of the statement of claim and Network’s defence eschewed mentioning the Civil Liability Act or risk of harm.

4. [48]

   However, this was not a case like some where the trial judge was unassisted by submissions. To the contrary, causation was quite elaborately addressed in the parties’ written and oral submissions. The plaintiff took the trouble to provide written submissions, advising of the different regimes applicable in relation to each of the defendants. Junior counsel for the plaintiff elaborated orally, and in some detail:

5. [49]

   Likewise, counsel for each defendant squarely addressed causation. For example, counsel for the Nominal Insurer said:

6. [50]

   On appeal, Ms Khedrlarian’s written submissions relied, although without a notice of contention, upon what Gaudron J had said in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1; [1992] HCA 27, and in particular upon this passage:

7. [51]

   I do not agree that this is an answer to the absence of findings. First, this passage of Gaudron J's judgment is not to be understood as altering the law of negligence. There is nothing in her Honour's reasons suggesting that such a result was intended to be conveyed. Further, the passage is preceded by the words “And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed”, referring to Duyvelshaff v Cathcart and Ritchie Ltd and Quigley v Commonwealth. That demonstrates that her Honour was not purporting to state a general principle of law as to onus, but rather a matter of evidentiary onus which might arise in a particular case.

8. [52]

   This is supported by what has been held in this Court subsequently, in TC by his tutor Sabatino v New South Wales [2001] NSWCA 380 at [57]-[74] (Mason P, with whom Priestley and Beazley JJA agreed), where earlier appellate decisions of this and other courts are considered; see also, more recently but to the same effect, Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 at [144].

9. [53]

   The types of cases where the principle may apply include the case of a direct physical injury (such as the injury to the boy’s hand in Betts v Whittingslowe (1945) 71 CLR 637; [1945] HCA 31). But in the present case, nothing in the case presented by Ms Khedrlarian caused the evidentiary onus to shift to either of the defendants.

Absence of findings of primary fact

1. [54]

   But this is not merely a case where the primary judge made conclusory findings, without seeking to reconcile conflicting evidence, and failed to make findings as to causation. Due allowance is to be given for the fact that his Honour’s reasons were delivered orally. On a charitable reading of the reasons, the findings of breach carry with them findings in accordance with Ms Khedrlarian’s evidence as to the absence of supervision and the absence of training with a hook knife. But an even more fundamental difficulty with his Honour’s reasons, with respect, is that no findings have been made in relation to the matters of primary fact which are the starting point for the legal analysis of breach, causation and damage.

2. [55]

   The starting point is: what was Ms Khedrlarian lifting on 27 February 2011? Great difficulty is immediately encountered. Both as originally filed and as amended, her statement of claim (which was not verified) alleged that:

3. [56]

   Ms Khedrlarian’s “Workers Injury Claim Form”, dated 5 July 2011 (more than four months afterwards), stated that “I was working on the line and felt a sharp pain on the right side of my neck and shoulder area” and that when she was injured she was “picking magazines on the line”. Some of the medical practitioners she saw later in 2011 recorded that she had been lifting weights of up to 20 kilograms. Her evidence in chief, on 13 November 2017 (more than six years later) was that she was picking what she described as a “heavy load” comprising between 25-30 books or magazines. She was cross-examined about this, and it was put to her that “the total final bundle would never exceed 11.5 kilos”. That accorded with the (unchallenged) evidence of Mr Martin (which the primary judge reproduced):

4. [57]

   There are obvious difficulties with Ms Khedrlarian’s assertion as to the weight of the bundles she was lifting, although it may be expected that a person whose occupation involved the repetitive lifting of variously sized bundles of magazines for some years might develop a relatively acute sense of the relative weights of those bundles. But the problem in this Court is that there is no rational or fair way in which a finding could be made as to the weight of the bundle she was lifting on 27 February 2011.

5. [58]

   I have considered whether, given the unchallenged evidence of Mr Martin, the Court should proceed on the basis that no finding inconsistent with his evidence should be made. It was suggested, both in this Court and at trial, that the system was computerised, such that it was impossible for a bundle weighing more than 11.5kg to be assembled. However, Mr Polin did not take the primary judge, or this Court, to evidence of that fact, save insofar as it was asserted as a conclusion by Mr Martin. Given the way the trial was run, I do not think that would be fair. It would involve rejecting what appears to have been the dogmatic evidence of Ms Khedrlarian, maintained in cross-examination.

6. [59]

   Next, there was an unresolved conflict in Ms Khedrlarian’s evidence as to the onset of her injury. Her Workers Injury Claim Form made no mention of any symptoms prior to 27 February 2011. However, in her evidence in-chief, she said that after she began using a hook knife, she began experiencing a pain which she described as “electric” going into her right wrist. The form stated that she had not previously had another injury/condition or personal injury claim that related to this injury/condition. Further, a history contained in a letter from one of her treating doctors stated:

7. [60]

   When confronted with this, Ms Khedrlarian gave evidence which is difficult to understand clearly:

8. [61]

   Thirdly, Ms Khedrlarian gave evidence in part in English (which was imperfect), and in part through an Arabic interpreter. Parts of her evidence are difficult to understand merely from the transcript. In particular, there is some difficulty in understanding precisely from what height she was lifting the bundles of magazines and to what height she was depositing them. The order was placed on a table at around the height of her abdomen and then she gave evidence of getting the magazines as follows:

9. [62]

   The plaintiff then sought to explain the process of taking magazines from pallets in accordance with the order as follows:

10. [63]

    After the luncheon adjournment she gave the following evidence:

11. [64]

    Relying upon the transcript alone, I would — albeit with some hesitation — infer that the magazines lifted by Ms Khedrlarian were at approximately waist height. However, I am far from satisfied that I fully understand the mechanism described by Ms Khedrlarian as to how she claimed her injury occurred. I am quite confident that significant aspects of her evidence are not recorded in the transcript, in part because of the familiar imperfections of transcript (especially where an interpreter is used) and in part because some of her evidence was by way of gesture and physical demonstration.

12. [65]

    In the absence of primary findings of fact, it is not possible to determine the challenges to the apportionment of liability and the quantification of damages.

The orders this Court can make

1. [66]

   The primary judge made no findings whatsoever as to what precisely Ms Khedrlarian was doing, or whether there was (in accordance with her testimonial evidence but contrary to some relatively contemporaneous documents) a sensation of pain in the two months prior to 27 February 2011, and, if so, the location of that pain.

2. [67]

   The appeal in this Court is by way of rehearing, and this Court may, if it is able to do so, make all necessary findings of fact. A new trial is to be avoided, unless all other courses would resort in some substantial wrong or miscarriage: UCPR r 51.53. I have considered whether it is possible, through making findings of fact favourable to Ms Khedrlarian, to determine whether a further trial can be avoided, because the proceedings would inevitably be dismissed. No party sought a retrial.

3. [68]

   Let it be assumed, favourably to Ms Khedrlarian, that she never rotated and potentially remained doing the same repetitive tasks over a series of three-hour shifts. If, in accordance with her pleading and her (challenged) testimonial evidence, those tasks involved lifting magazines weighing up to 15kg, then I would be reluctant to conclude that there had been no breach of duty by either defendant, or that Ms Khedrlarian had failed to discharge her onus of establishing that such breach was causative (either at common law or in accordance with s 5D) of her injury. True it is that Mr Polin submitted that there had been no suggestion of any other injury in the previous five years. That is relevant, but I do not regard that as being dispositive of the issue of breach. I am also conscious that on one view Ms Khedrlarian was merely taking individual magazines or small bundles of them and assembling an order, but to proceed on that basis would amount to a rejection of her evidence that she was lifting 15 kg.

4. [69]

   I think there is a possibly a further difficulty, somewhat different in nature, confronting an attempt to resolve this litigation without a retrial, although in light of the parties’ stance it was not explored in argument. The primary judge admitted into evidence the report of Mr Cockbain. The introduction of that report includes the following:

5. [70]

   The report contains opinions which are favourable to Ms Khedrlarian on the issues of breach and causation. True it is that, as Network and the Nominal Insurer submit, a powerful case may be advanced in support of the inadmissibility of all or parts of the report, both because Ms Khedrlarian’s evidence did not establish its assumptions, and because its reasoning process was not set out. Let that be assumed, although one difficulty in doing so is the absence of findings of primary fact.

6. [71]

   Ordinarily, the orders resulting from a successful challenge to the admissibility of evidence are a retrial. In the present case, the appellants seek (a) verdicts in their favour and (b) the exclusion of expert evidence favourable to Ms Khedrlarian. That strikes me as at least potentially unfair. The report was admitted, after argument, on the second day of the hearing. The plaintiff’s case had not closed (counsel had expressly reserved his position on closing his case in relation to the undetermined objection to the expert report). Had the report been rejected, it is unclear what course the plaintiff would have taken. It is unclear whether steps would have been taken to adduce further expert evidence, or whether an adjournment would have been sought, and, if so, whether it would have been granted. It may very well have been the case that the trial would have proceeded on the same evidentiary basis as it did, but that is not something that one can be confident of at this stage. Had the report been rejected, Ms Khedrlarian may have applied to adduce evidence in chief from Mr Cockbain, or sought an adjournment. Whether either course would have been permitted is unclear, but I do not think the possibility could be discounted. Accordingly, insofar as the appellants submit that Mr Cockbain’s report should be excluded from the evidence and on that basis there are incurable gaps in the evidence in relation to breach and causation, I am not satisfied that there would be no substantial injustice to Ms Khedrlarian.

Orders

1. [72]

   For those reasons, the appeal must be allowed and the orders made by the primary judge set aside. In circumstances where I am unpersuaded that this Court can make findings itself to determine the litigation, it is impossible to avoid the cost and expense of a retrial.

2. [73]

   In this Court, Ms Khedrlarian sought to defend all aspects of the reasons of the primary judge. There is no reason for costs of the appeal not to follow the event. Costs of the first trial should abide the outcome of the retrial. Neither the notice of appeal nor the cross-appeal, nor (so far as I can see) elsewhere in the appeal materials is there identified whether any orders as to costs were made in the District Court. Network seeks an order setting aside “any costs orders made in the District Court”. Such order is too broadly framed; it does not follow from the outcome of this appeal that any and all interlocutory costs orders ought to be disturbed. If any costs orders were in fact made following the trial consequent upon Ms Khedrlarian’s success, then they should be set aside, and Network or the Nominal Defendant should apply to this Court within the 14 days specified in the rules identifying them so that that can occur.

3. [74]

   I propose these orders.

4. [75]

   Following delivery of this judgment, an application was made, within the time specified by UCPR r 36.16, for a suitors’ fund certificate for Ms Khedrlarian. The Court acceded to that application, entering the following order on 1 November 2018 in chambers: “Order that Ms Khedrlarian be granted a certificate under the Suitors’ Fund Act 1951 (NSW).”