Expert evidence by reports alone: A burden on the trial judge & a risk for the litigants

In Cupac v Cannone [2015] NSWCA 114 the NSW Court of Appeal has again expressed concern at the practice of tendering conflicting expert reports without assisting the trial judge by arranging conclaves, concurrent evidence or cross examination.

At [14] – [18]:

  1. The appellant and several lay witnesses called on his behalf gave evidence at the trial. Despite the parties tendering a large number of medical and medico-legal reports, none of the medical witnesses gave oral evidence. This was a consequence of the parties’ agreement that the primary Judge should be asked to deal with the claim on the basis of the written reports, without any of the doctors being required for cross-examination.
  2. The approach taken by the parties imposed an extremely difficult task on the primary Judge. His Honour pointed out (at [95]) that he was faced with a “quandary” because of “the untested extremes of medical opinion between the two sides”. His Honour had to assess the extent of the appellant’s injuries and continuing disabilities, as well as the extent of impairment of his earning capacity, on the basis of differing opinions, some of which were very difficult to reconcile. He also observed (at [62]) that the case would have been an appropriate one:

“for the parties to have organised concurrent evidence between the experts to allow the court to have the benefit of discussion between the doctors.”

  1. This Court has repeatedly commented on the burden placed on a trial judge when the parties simply tender medical reports and decline to cross-examine the authors of the opposing party’s medical reports. It has also commented on the risks that the party bearing the onus of proof takes in adopting this course.
  2. In Manly Municipal Council v Skene [2002] NSWCA 385, Heydon JA acknowledged (at [22]) that there are numerous practical reasons why the “classic model” of the common law trial is often not adhered to in the District Court in personal injuries cases:

“In many cases the range of dispute is narrow. It is socially more desirable for doctors to spend much more time treating patients than giving, or waiting to give, evidence. The classical theory of trial may consume disproportionate amounts of time and money compared to the District Court system of written reports exchanged in advance and supplied by experts who are rarely cross-examined.”

But his Honour also pointed out (at [21]) that where apparently well-qualified experts give conflicting opinions and these opinions are not tested in oral evidence, the process can be seriously deficient:

“To the extent that civil litigation – a law suit – attempts to arrive at a just resolution of the dispute by a rational approach to the underlying facts, it tends towards the irrational that the law suit should be decided on imperfect materials which could have been improved – expert reports having deficiencies, both in their manner of expression and in their being based on a fragmented set of factual assumptions.”

  1. In Majkic v Bonanno [2008] NSWCA 253, Bell JA identified (at [26]) the potential difficulty for the party bearing the onus of proof if the conflicting evidence of experts is not tested:

“It is common for cases in the District Court to proceed with the tender of conflicting medical reports, without the authors being required for cross-examination. This places an added burden on the judge, who must carefully analyse the assumptions upon which each report is based against the facts that have been established to determine which opinion is to be accepted. Where the expert evidence is in conflict and no rational basis emerges for preferring one opinion to another, the result is likely to be that the party with the onus fails: Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48].”

See also Ainsworth v Ainsworth [2002] NSWCA 130 at [71] (Sheller JA); State Forests of New South Wales v Dinnerville [2004] NSWCA 127 at [42] (Mason P).