Wright v KB Nut Holdings Pty Ltd as Trustee for the Kerrie-Ann Stevenson Family Trust Trading as Bonapartes Services Apartments  QDC 56 (14 March 2012)
This case involves a successful application by the Defendant to adjourn a trial (on the hearing date) to obtain further expert evidence in circumstances where, in the words of Judge Robin QC, “the dimension of the proceeding had changed considerably” in the days leading up to trial.
The Plaintiff was pricked by a needle lodged in the staircase inside her holiday unit on 20 April 2009. As a result of this incident, the Plaintiff became convinced that she had contracted a HIV-type disease and sought damages for a resultant psychiatric injury. The Plaintiff commenced proceedings against the Defendant, the owner of the serviced apartments.
The Plaintiff’s expert, Dr Byth provided two reports on 22 April 2010 and 15 September 2010 in which he diagnosed the Plaintiff as suffering from a psychiatric injury with a PIRS rating of 17%.
The Defendant obtained a report from Dr Whiteford, dated 1 December 2010. At the time of Dr Whiteford’s examination of the Plaintiff, she had been conclusively cleared of suffering any HIV-like complications as a result of the needle incident and, as a result, Dr Whiteford opined her psychiatric symptoms would settle. Dr Whiteford did not provide a PIRS assessment.
The Plaintiff’s solicitors subsequently instructed Dr Byth to review new medical evidence relating to the Plaintiff’s condition after she suffered a “reversal in her psychiatric state” on Christmas Day 2011. The additional evidence included details of her admissions to various institutions and reports of treating GPs. In light of this new information, Dr Byth provided a report six days before the trial in which he increased his PIRS assessment of the Plaintiff to 34%. Then, two days prior to the trial, Dr Byth conducted an examination of the Plaintiff and increased his PIRS assessment even further to 57%. This report was provided to the Defendant on the day before the trial.
Given the fresh evidence in relation to her condition and the resultant comments of Dr Byth, the Defendant was expectedly anxious to have the Plaintiff re-examined by Dr Whiteford. Notably, a Further Amended Statement of Claim filed on the day prior to the trial had increased the Plaintiff’s claim for damages from $387,400 to $685,729.
The Defendant applied to have the trial adjourned to enable it to obtain a further report from Dr Whiteford.
The Court noted the importance of a PIRS assessment and the consequential ISV in such proceedings, and its prima facie significance in determining the amount of damages to be awarded. In reaching its decision, the Court noted that it was the Defendant who would ultimately have to pay any damages assessed, and that the additional medical evidence, which had only become available recently, had resulted in a “quantum leap”. The Court concluded that in light of these facts, if there was to be a fair trial, it had no option but to grant the requested adjournment to enable the Defendant to obtain further evidence.
This case demonstrates a situation where a party may seek an adjournment where the parameters of the proceedings have changed significantly in light of facts and evidence which were not previously known or able to be obtained prior to signing a Request for Trial Date. Such issues of course turn on the facts of each case, but it is obvious that the new evidence would need to be of substantial potential significance, as it was in this case, to justify an adjournment.
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