Focus: 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) Services:
Insurance Industry Focus:
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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