Expert witness conclaves: Probability and statements

Although not a medical claim and despite the reasons being quite brief, Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805 has two interesting aspects.

Firstly, the plaintiff argued that the questions for the expert orthopaedic surgeons (in circumstances where the cause of the plaintiff’s disabilities was in dispute)  should include the sentence: “Your opinions in respect of the above are to be given on the balance of probabilities, that is, something is more probable than not. Scientific and medical certainty is not required.”

At [7]-[8] the court said:

I do not agree. Findings in a civil case are made on the balance of probabilities by a court. A medical expert expresses an opinion, approaching matters, including causation, from a medical perspective. There is a difference, as is well known and is referred to in authorities, between medical causation and causation as the law understands it, whether under s 5D of the Civil Liability Act 2002 (NSW) or at common law.

The point is that experts are not required to give their opinions based on the balance of probabilities, nor are they to be concerned with scientific and medical certainty. They give their expert opinion based on their medical knowledge and experience and in the light of the information which has been provided to them by the Plaintiff and their findings on any examination. The Court has regard to those opinions and will have to determine itself whether the Plaintiff proves on the balance of probabilities injuries, disabilities and incapacities arising from those injuries and disabilities. I do not consider it is appropriate that the experts should be directed to approach the matter in the way the Court is obliged to do.

Secondly, the plaintiff sought to provide the experts with assumptions which were largely taken from the evidentiary statement of the plaintiff. It is not clear from the judgment whether the plaintiff was seeking to obtain the views of the defendant’s experts on different assumptions than had been put to them. In any event the Court said at [9]-[11]:

…each of these experts has examined the Plaintiff and taken a history from him. That history may or may not accord with the material which is contained in the evidentiary statement. The fact that there might be differences between them is frequently a cause for cross-examination at any hearing.

It does not seem appropriate to me that the experts should now be required to consider a history that the Plaintiff intends to put forward to the Court, where that history may differ from the history that has been given to those doctors. The doctors are now not in a position where they can ask questions of the Plaintiff to clarify matters or to make them consistent with what they may have been told when they examined him.

In my opinion, the experts should provide their joint report based on their own examination of the Plaintiff and their own assessments of the material that they have seen to date.

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