Objections to unserved treatment reports and expert evidence

Not yet available on Caselaw is the interlocutory decision from last week of Macquarrie v Hunter New England Local Health District & Ors 2017 NSWDC (17 August 2017).

During the course of the trial the defendants objected to parts of the plaintiff’s tender bundle and to part of the plaintiff’s expert evidence concerning liability.

The proposed tender bundle included two letters from a specialist (Dr Teo) to a general practitioner, that had been produced on subpoena (at [3]) but had not been served (at [7], [19]). Similar issues arose in relation to other documents. The defendants objected on various bases but of particular interest is the trial judge’s discussion at [22] of whether Dr Teo’s letters contained opinions and therefore required compliance with the expert evidence provisions of the Evidence Act. The trial judge held that there were significant opinions in the letters concerning the plaintiff’s condition at the relevant time. Compliance was necessary and hence the letters were inadmissible ([23]).

The defendants also objected to the tender of five reports of Professor Brew neurologist for reasons including non-compliance with the expert witness code of conduct and the requirements of section 79(1) of the Evidence Act 1995 (NSW) (at [25]).  The plaintiff pointed to ‘late notice’ of the objection and the fact that the defendants had not objected to Professor Brew’s participation in conclaves. At [48] the trial judge held that the reports were not admissible given a number of factors (not all of which are listed here):

  • A failure to meet the requirements of form and comply with the Code.
  • A failure to demonstrate a clear reasoning process.
  • A failure to sufficiently expose the steps taken in reaching the various opinions expressed.
  • A failure to identify matters of significance that otherwise might be expected to be touched upon by him in the reports, including a clear explanation of why various propositions were articulated.
  • The failure to identify any particular neglect by any particular defendant.
  • A disparity between assumed facts and the evidence before the court (see also [50])..

The following day saw the publication of Macquarrie v Hunter New England Local Health District & Ors 2017 NSWDC (18 August 2017), dealing with applications for indemnity costs following (presumably consent) judgments in favour of the defendants on day 14 of the trial. The trial judge ordered that the plaintiff pay the various defendants’ costs on an ordinary basis and then on an indemnity basis after certain dates.

With thanks to Don Munro for noting these two matters.

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