Expert evidence and ordinary human experience

In Verryt v Schoupp [2015] NSWCA 128, the court dealt in passing with the admissibility of a psychiatrist’s expert opinion report. The author had been asked to comment about an accident when a 12 year old child was allowed to hold onto a motor vehicle, to be towed along while on a skateboard.

Dr Quadrio expressed the view that such a boy was likely to be trusting of the judgment of the adult present and to go along with what the other boys were doing. She considered that a child in the respondent’s position was likely to have lacked any real understanding of the danger of the activity in which he was engaging: [38]

Meagher JA at [51] noted:

The questions which Dr Quadrio was asked to consider did not require or involve any psychiatric assessment of the respondent, either current or at any earlier point in time. Those questions did no more than invite her to express views as to how she thought an ordinary boy of 12 was likely to have acted and thought in the circumstances in which the respondent found himself in January 2007. That subject was not one that her evidence showed to be a field of “specialised knowledge” in which she was expert by reason of her training, study or experience: cf Evidence Act, s 79(1); Dasreef Pty Ltd v Hawchar[2011] HCA 21; 243 CLR 588 at [37].

And at [58]:

Dr Quadrio’s views were with respect to matters of ordinary human experience. Unlike the position under the common law, and because of s 80(b), they were not inadmissible for that reason alone. However, they were not shown to be based on any specialised knowledge of a 12 year old child’s ordinary behaviour in circumstances such as those confronting the respondent. For that reason the evidence was not admissible under s 79 and, if objected to, should have been rejected.

Sackville AJA commented at [96] that legal representatives need to consider carefully whether an opinion elicited from an expert can be presented in a form that satisfies s 79(1) of the Evidence Act. Equally, the representatives of a party served with an inadmissible or irrelevant expert report should be astute to object in a timely fashion to the report being admitted into evidence. Cases can and should be resolved justly and speedily without reliance on expert evidence of dubious utility.

Ultimately however the admission of the evidence did not result in any material error: [60].

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