The new expert evidence rules have effected a fundamental change in the way in which many trials will be conducted in the civil jurisdiction of our Courts. I would recommend practitioners read the paper “The Duties and Responsibilities of an Expert Witness” of Paul Freeburn SC, Issue 19 of Hearsay, for an excellent theoretical analysis of the new rules and the philosophy behind the new rules.
As far as I am aware the first decision of the superior Courts in enforcing the new expert evidence rules was the decision of Cullinane J in Moore v. Queensland Rail and Another1. In Moore’s case, on the first day of trial, Justice Cullinane raised with the parties in Court the non compliance with the expert evidence rules and, despite the submissions of both the plaintiff and the defendant, adjourned the trial. The adjournment was a costly exercise for both plaintiff and defendant, who were both represented by senior and junior Counsel and who had expended not inconsiderable sums in retention of their own experts.
Justice Cullinane’s decision in Moore v. Queensland Rail and Another was the first strong warning from the Supreme Court that it intended to apply the new expert evidence rules. This warning has been repeated by Justice McMeekin on at least two occasions.
The new rules are now being applied by the Courts such that litigants can no longer presume that they have a right to call any number of expert witnesses on any particular expert issue. Practitioners would be familiar with Stewart v. Fehlberg and Another2 where Justice McMeekin refused to permit the plaintiff to call an expert (a Dr Fish, a research professor in bioengineering from the University of Illinois) but did allow the plaintiff to call a Dr Andrews, a medical practitioner with an interest in electrical shock injuries. In this regard, it is to be noted that Dr Andrews had significant formal academic qualifications, including a Bachelor of Engineering in Electrical Control with First Class Honours, a Master of Engineering in Science, an MBBS with Second Class Honours and a PhD in his thesis topic of “Studies in Aspects of Lightning Injuries”.
The plaintiff wished to call by Dr Fish and Dr Andrews, ie, two experts on the same issue. Justice McMeekin did not permit this to occur. The result was hardly surprising.
Justice McMeekin provides guidance in paragraphs 16 or 17 of the proper interpretation of paragraph 5 of Practice Direction 2 of 2005 (which excludes the cases which have been litigated under the Motor Accidents Insurance Act 1994 or Workers’ Compensation and Rehabilitation Act 2003 schemes from the operation of the new expert evidence rules.
In this regard, Justice McMeekin said at paragraph 17:-
“As to the first point, the claims to which the Acts refer to in the Practice Direction apply were ones where inevitably medical reports, at least, would have been obtained prior to proceedings and where the legislation required that the actions be certified as ready for trial prior to the mandatory conferences that preceded the commencement of the proceedings. Thus it was evidently wasteful to then mandate an application for directions concerning the obtaining of expert evidence in every case. But when the parties did perceive that new evidence was required then regard had to be given to the Rules and the purpose behind them.”
Justice McMeekin warned in paragraph 18:-
“The evident purpose of Chapter 11 Part 5 of the UCPR was to put in place a regime controlling the calling of expert evidence. Parties who chose to ignore the Rules do so at the risk that the evidence may be rejected when it comes to the attention of the Court that the intend behind the Rules and Practice Direction has been ignored. That approach was adopted by Cullinane J in Moore v. Queensland Rail and Another, an unreported decision of Mackay circuit Court.”
Justice McMeekin then said at paragraph 20:-
“I approach the applications then on the basis that there ought ordinarily to be only expert in any given field and I shall permit multiple experts only if the justice of the case so requires.”
Justice McMeekin continued at paragraph 30:-
“It seems to me that if indeed there is particular area of expertise involving electrical shock injuries, and if the symptoms of such injuries fall outside the area of expertise of those medical practitioners already identified by the parties, then this was precisely the case that cries out for the appointment of a person that the parties can both accept as an acknowledged expert in the field and upon whom the Court could rely to give necessary guidance. That can best be achieved, as the Rules require, by the precise identification of the issue, the naming of at least three experts with relevant qualifications and each party having fully opportunity to put before the Court material to decide on the selection of an expert.”
That the new expert evidence rules have important effect has been reaffirmed by Justice McMeekin’s unreported decision Simpson v. Brett and Suncorp General Insurance Limited3.
The following exerts from Justice McMeekin’s well reasoned decision in Simpson v. Brett and Suncorp General Insurance Limited adequately demonstrate the current position on the new expert evidence rules.
“…
The plaintiff’s application seems to have prompted a belated recognition on the plaintiff’s side that they had best get their house in order to comply with the expert evidence rules, contained in chapter 11, part 5, and practice direction number 1 of 2005, to the extent it applies to an action of this type.
The defendant appears, and Mr Crow of counsel who is appearing on the defendant’s behalf, has indicated that there is no dispute from the defendant’s side about experts being called in the same area in which the defendant has obtained leave, that is, an orthopaedic surgeon, a neurosurgeon and a psychiatrist.
The plaintiff’s application, however, seeks that it be entitled to call two orthopaedic surgeons, as well as the neurosurgeon and psychiatrist that has already been retained, and in addition, a clinical anatomist, Dr Lynton Giles, and Ms Katherine Purse, an occupational therapist. The defendant objects to the plaintiff having leave to all the additional orthopaedic surgeon and Dr Giles and Ms Purse on a number of grounds.
Apparently, there are no authorities to guide me in the exercise of the application of the rules in the practice direction. The only case that counsel has been able to refer me to is my own decision in Stewart v. Fehlberg 2008, QSC[203], which is of course hardly an authority that guides me. It appears to me that the evident purposes of the expert evidence rules as set out in rule 423 is to limit the number of experts called on any given issue provided that can be done without compromising the interests of justice and without, it follows, affecting the prospects of a fair trail of the proceeding.
The applicant has not set out to demonstrate why it is that it would be in the interest of justice that any of the three contested witnesses be called. It is the fact that Dr Giles first provided a report to the plaintiff’s solicitors long ago in December 2000, and prior to the introduction of chapter 11 part 5 of the rules, and prior to the introduction of the practice direction in 2005. His subsequent report of 24 March 2006, however, was after both the introduction of the rules and of the practice direction. …
So it can be accepted that Dr Giles has some expertise in the anatomy of the spine. What is not shown, however, is that he has any expertise that goes beyond that held by competent neurosurgeons and orthopaedic surgeons, who are of course trained in the anatomy of the lumbar spine and who are trained to operate on that part of the body.
There is no attempt by the applicant to show how it is that Dr Giles’ opinions fall outside the area of expertise of a competent orthopaedic surgeon, or a competent neurosurgeon, and how they will assist the Court in arriving at a just resolution of the case. All it seems to be is that the plaintiff would like to have one more opinion to put in the mix.
It is far from clear to me that Dr Giles’ opinions do agree with Dr McGuire’s, another orthopaedic surgeon that the plaintiff seeks to rely on. They may or may not; it is difficult to follow his opinion. But it highlights the problem that the more people who are called to express their opinions, and they are only opinions, then the more opinions we are likely to receive and the more confusing the picture gets. There might well be good reasons why in particular cases Dr Giles would be of assistance. It maybe that he has particular expertise on a particular problem, not within the normal expertise of an orthopaedic surgeon or a neurosurgeon, but that is not shown as the case here It would seem that he was retained initially to comment on the prospect of a pre existing degeneration impacting on the plaintiff’s presentation subsequent to the subject accident.
That is a matter that is normally addressed in every back case in which I’ve had experience over the years by the orthopaedic surgeons and neurosurgeons. It is squarely within their area of expertise and there is nothing shown here to demonstrate any special knowledge that Dr Giles can bring here to demonstrate any special knowledge that Dr Giles can bring to bear on the question. Thus, my view is that the clear object of the rules being to limit the number of expert witnesses, and indeed to limit where possible the experts to one, let alone one on each side, that an onus comes onto the plaintiff in this case to demonstrate why it is that the Court needs to hear the opinions of Dr Giles. [my underlining]
I should mention that further objection is taken that to some extent Dr Giles marks the reports of other experts, and that does not advance the matter much at all. I agree that to the extent his report does so, and it is certainly not limited to that, it isn’t helpful. In my view, the plaintiff hasn’t attempted to discharge the onus that comes on it, given the rules, and I’m not prepared to give leave for Dr Giles to be called.
In the case of the orthopaedic surgeons, there are two that the plaintiff advances — Dr Pentis and Dr McGuire. Again, there might well be cases where an orthopaedic surgeon ha some special expertise that would justify the calling of two on the one side of the case. I have been in cases myself as counsel where three and four were called on each side, with ever mounting confusion as to the probable result. Here, I have not attempted to compare the various opinions. …
No attempt is made to show here that Dr Pentis and Dr McGuire have any differing expertise, or that there is any particular reason why one should be called over the other. It would appear that Dr Pentis saw the plaintiff the earliest, and has seen him on three occasions to Dr McGuire’s one. Thus it would seem that he is the logical expert to be called, although Mr McGowran, who appears on behalf of the applicant, tells me that the plaintiff’s preference is to call Dr McGuire. I will not rule on that; I do not think it appropriate that the Court do so. Rather, what I will rule is that the plaintiff have leave to call one orthopaedic surgeon, given that there is nothing in the material to demonstrate any need, in the interests of justice for there to be two. It is a matter for the plaintiff to decide which orthopaedic surgeon he wises to call, and at this stage my order will simply be that the plaintiff have leave to call an orthopaedic surgeon, on the understanding that it is between Dr Pentis and Dr McGuire that the choice be made. But that is a matter for the plaintiff, and I will give a direction that the plaintiff indicate which orthopaedic surgeon he intends to rely upon prior to trial.
Finally, there is the matter of the occupational therapist, Ms Purse. Ms Purse provided a report on 3 August 2005, by which time the expert evidence rules and practice direction were in place. Her assessment was carried out however in March of that year prior to the introduction of the practice direction, but subject to the introduction of the rules. The report, in my view, adds very little to the case. Mr Crow, who appears on behalf of the respondent, submits that it really covers the same ground as is covered by the orthopaedic surgeons and neurosurgeon who have already been retained by the plaintiff.
Effectively, Ms Purse says that Mr Simpson complains of an impairment of function caused by chronic back pain, and that as a result, he has the usual limitations that in my experience are a common feature of virtually every back case, if I can put it that way, and that is, limited capacity to lift, walk, stand and sit, and difficulties adopting certain postures.
It is not demonstrated how it is that an occupational therapist adds anything to the material in this case. There are of course cases where the occupational therapist can provide guidance as to the needs of a plaintiff in terms of his domestic assistance, but here, the only comment that Ms Purse can make is that accepting Mr Simpson’s complaints, he has significant restrictions in his capacity to work as a carpenter or labourer, or in an occupation with similar high demands that are made on a back.
Whilst it is necessary, no doubt, for a plaintiff to lead that sort of evidence, that is commonly done through orthopaedic surgeons and neurosurgeons, and again, I cannot see that it is demonstrated that there is any need to repeat that evidence through Ms Purse.
I should say that the approach that the plaintiff’s side takes to the application seems to be that they have virtually the right to call whatever witnesses they please. There has been no attempt to demonstrate what it is about the evidence of these witnesses that should assist the Court in reaching a just decision, and why it is that the experts that they already have such as the orthopaedic surgeon and the neurosurgeon, could not give the same evidence, as they often do. …” [my underlining]
Graeme Crow
Footnotes
- An unreported decision from the Mackay circuit Court
- [2008] QSC 2003
- (unreported) Rockhampton Supreme Court 8 December 2008
