Expert witnesses; Questions for experts in conferences

John v Henderson (No 1) [2013] NSWSC 1435 dealt with a dispute over the questions to be put to experts retained in a medical negligence dispute. Although the questions ultimately settled are not of general relevance, the Court’s discussion at [19] – [26] of ‘open’ questions, matters of law and questions directed to provision of information is quite helpful:

19 In my view, for proceedings in the Professional Negligence List, it is undesirable to frame questions as though they were interrogatories being asked of the experts, and to frame questions in a way which invites the experts to confine themselves to a single word answer such as “yes” or “no”. Experience suggests that obtaining agreement to questions framed in this way is likely to be very different.


20 In my view, this process is more akin to the delivery of joint interrogatories than a process to which I have earlier referred which is to enable the experts in a joint conference to express their opinions, and by mutual discussion, determine whether the opinions on various issues are the same or can be agreed or whether there is a fundamental difference between them leading to their non-agreement on one or more issue.


21 It is not generally appropriate, in my view, to ask direct questions of the experts which are matters of law which are appropriate for a judge.


22 Here, except in cases where the parties are agreed, the questions have been framed to invite discursive answers, and answers which it is hoped will elicit the real difference in the opinions between the experts retained by the parties.


23 One matter of substance which was debated between the parties was whether, given that this is a case with respect to the claim for breach of the common law duty of the provision of information, advice or warnings, was whether the opinion of the experts and common practice as that term is understood, is relevant for the experts to express an opinion on.


24 Senior counsel for the plaintiff pointed to the terms of the judgment of the High Court of Australia in Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479 and submitted that the adequacy of advice or information provided to the plaintiff is a matter solely for the determination by the Court and not one in the resolution of which expert opinion has any role to play.


25 Counsel for the defendant submitted by reference to the judgment of Gleeson CJ in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, that whilst expert opinion in this area of discourse was not determinative of the issue, it was nevertheless relevant. It seems to me that it cannot be said, at this stage of the management of these proceedings, that the opinion of these experts on those questions is wholly irrelevant, and necessarily therefore, inadmissible. I am reluctant in the absence of forming such a firm conclusion by a determination at this early stage of the proceedings, to fundamentally affect the final course of the proceedings.


26 It seems to me that the appropriate course to follow where I am not positively persuaded that such evidence is wholly irrelevant is to permit the questions to be asked, in the form on which I have settled, of the experts, to note that the plaintiff objects to the evidence being admitted, and to reserve to the trial judge the question of whether any expert evidence on those issues is or is not admissible. Of course, what the experts say may affect that question of admissibility.