Australia: Joint conferences of experts - a blessing or a curse?

Last Updated: 4 July 2016
Article by Andrew Ross

Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151 (13 February 2015)
Tinnock v Murrumbidgee Local Health District [2015] NSWSC 188 (9 March 2015)
Tinnock v Murrumbidgee Local Health District [2016] NSWSC 86 (9 February 2016)
Tinnock v Murrumbidgee Local Health District (No 2) [2016] NSWSC 87 (11 February 2016)
Tinnock v Murrumbidgee Local Health District (No 3) [2016] NSWSC 88 (12 February 2016)
Tinnock v Murrumbidgee Local Health District (4) [2016] NSWSC 89 (15 February 2016)1
Tinnock v Murrumbidgee Local Health District (5) [2016] NSWSC 109 (17 February 2016)

Introduction

Joint conferences of experts have become common in commercial litigation. Their aims are clear (as described below). They are favoured by both Courts and experts. But parties' lawyers are more equivocal about them.

Andrew Ross, Partner from our Sydney office, considers some of the issues that can occur throughout the life of a matter that can result in joint conferences of experts not always resulting in the efficient resolution of disputes.

The ideal

Practice Note SC Gen 11 of the Supreme Court of New South Wales lists the objectives of a joint conference of expert witnesses as comprising:

  • the just, quick and cost effective disposal of the proceedings.
  • the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called.
  • the consequential shortening of the trial and enhanced prospects of settlement.
  • apprising the Court of the issues for determination.
  • binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed).
  • avoiding or reducing the need for experts to attend court to give evidence.

Unfortunately, joint conferences of expert witnesses do not always produce these outcomes.

Background

In mid-2010, Kylie Tinnock was admitted to Wagga Wagga Base Hospital for treatment. She had developed an incisional hernia after having a caesarean section. Surgery to repair the hernia was performed on 7 June 2010 under the auspices of Dr P. Part of that procedure was performed by the Surgical Registrar, Dr G.

On 9 June 2010, Ms Tinnock was discharged from hospital. She developed an infection and was re admitted on 13 June 2010 for treatment. On 15 June 2010 Ms Tinnock underwent further surgery and remained in hospital for a week. Her condition worsened and she underwent further procedures at the Calvary Hospital, Canberra which were directed to treating what was, by then, a serious case of post-surgical infection.

Ms Tinnock commenced proceedings in 2012, claiming damages for medical negligence against the Murrumbidgee Local Health District ('MLHD'). In essence, her claim was that there were measures available to Dr P in carrying out the repair of the hernia that ought to have been taken which would have had the effect of reducing, if not eliminating, the risk of post-surgical infection.

The first conclave

Experts were retained by both parties and expert reports prepared. A conclave of experts was scheduled for 13 February 2015. The judge hearing the matter made the following comments in relation to the utility of conclaves2:

Conclaves of experts are, in my view, an essential element in the just, quick and cheap disposition of the real issues in cases such as the present. I am acutely conscious that they are not easy to organise nor are they always cheap. However, the benefit to be obtained from joint opinions arising from conclaves is, in my view, usually significant.

As the subsequent history of this case revealed, conclaves are not always without issues.

The troubles with this conclave began when, on the day on which it was scheduled, Ms Tinnock filed an application for it to be postponed. It was only then that she had learned that the MLHD had adopted the position that it was not vicariously, or otherwise, liable for the conduct Dr P. Given MLHD's position, it might have been necessary for Ms Tinnock to apply to add Dr P as a party. In that event, if the interests of MLHD and Dr P diverged, there was a real risk that the joint opinion obtained as a consequence of the conclave would be wasted because Dr P, or any experts subsequently retained by his lawyers, might not have been accepted.

Justice Campbell was less than impressed with MLHD's approach to liability, commenting that3:

Contrary to what the Civil Procedure Act 2005 and the UCPR require, [MHLD's] defence does not identify the real issues, but rather dances around the issue, toys with it, and effectively pretends that it doesn't exist. The time has long since passed that institutions which are experienced litigants can put on defences in such terms and expect the other parties and the Court to take notice of them.

Justice Campbell then considered the issues which it was proposed would be put before the conclave of experts. He concluded that those issues seemed to comprehensively cover all of the allegations in the statement of claim and all the issues which were likely to arise at trial on the question of liability arising out of the surgery.

Justice Campbell also concluded that the risk that any lawyer acting for Dr P would seek to persuade the Court that the joint report of the conclave of experts ought not be relied upon was small and that, even if that risk was to arise, there was no reason why the joint report ought not be admissible, and relevant, to the determination of the issues between Ms Tinnock and MLHD, even if not against Dr P. Justice Campbell refused the application and the conclave proceeded.

The first hearing delays

The case came on for hearing on 9 March 2015, with an estimated duration of five days. Unfortunately, on the preceding weekend, counsel for MHLD became suddenly and acutely ill and was admitted to hospital. Justice Campbell commented4:

It is apparent that the case could not proceed today. Whatever the stringency of modern case management, the law is not totally blind to human vicissitudes and from time to time the unexpected and unfortunate will arise which will de-rail the Court's endeavours to have matters on and heard as soon as practicable.

In an attempt to avoid an adjournment which, Justice Campbell suggested could delay the case by 12 months, the parties proposed that the case be treated as 'part heard' by receipt of the tender of a joint report from the conclave. In adopting that course of action, with the intention of recommencing the hearing on 13 April 2015, Justice Campbell said5:

In preparation for hearing today I have been provided by the parties with a court book which includes a joint report of two consultant psychiatrists, [Dr A] and [Associate Professor R]. Although there are some differences between them as to the precise diagnosis that should be afforded to Ms Tinnock's medical condition, they are in agreement that she has a form of Major Depression as a result of the alleged negligence of [MHLD]. Not only did she suffer a severe infection as a result of the surgery to repair the incisional hernia, but she also underwent a great many procedures to correct the unfortunate outcome of that original surgery and in human terms anyway, understandably, that has had an effect upon her psyche. There is no doubt that she suffers from a psychiatric illness, which seems to be worsening, because of that unfortunate - I use that word neutrally - course of surgical events.

Hopes for a speedy resumption were dashed when, just before the recommencement, a statement from Dr P was served on Ms Tinnock by MHLD's lawyers. As well as setting out his recollection of his treatment of the plaintiff, Dr P's statement introduced a new issue: the point in time when the post-surgical infection became evident. Dr P's contention was that, at no time while he was responsible for Ms Tinnock's care was there evidence of a post-surgical infection.

Dr P's statement was forwarded to Ms Tinnock's and MHLD's experts for consideration. Ms Tinnock also retained Dr K, a micro-biologist, to provide an opinion on the same question. Further delays occurred, with Dr K's report not being provided until 27 January 2016 (over 9 months after the intended recommencement). The defendant's supplementary reports were served on the plaintiff around the same time.

Interlocutory delays

The passage of time also led to the emergence of a number of interlocutory issues, including an application by the defendant to withdraw an admission and the need for the plaintiff to apply for leave to rely on Dr K's report, which had been served out of time.

The defendant's application arose due to ambiguity in the pleadings, in which the defendants had admitted that the "plaintiff developed an infection of the wound" in the context of a chronology which placed this admission between 9 June 2010 (when she was released from the hospital) and 13 June 2010 (when she was re-admitted). This presented a potential problem for the defendants given the new issue raised by Dr P as to the timing (and hence liability for) the outcomes of the infection.

The challenge facing Justice Campbell in determining this application was that conclaves had already been held at which issues relating to the timing of the onset of the infection had been considered as a result of the form of the questions put to the experts. In this respect, he commented6:

When the matter was referred for a conference of experts in accordance with the Rules, the parties were unable to agree upon the questions or issues that should be referred for their consideration. As sometimes happens, perhaps lamentably, each party was allowed to submit their own formulation of questions for consideration by the experts in conference.

In resolving to grant the application, Justice Campbell took into account the ambiguity in the admission, the form of the questions put to the experts (which invited their opinions as to the existence of signs of infection at multiple dates) and the answers given (which indicated the experts had considered the issue).

Having reached that view, Justice Campbell then also granted the application for reliance on Dr K's report, observing that it was obtained as a result of the emergence of the same issue which prompted the application for withdrawal of the defendant's admission.

The problems involving procedural matters and expert evidence did not end there. Justice Campbell was then called upon to rule on issues of admissibility in relation to Dr P's statement, in which he included a description of his 'usual practice' in relation to discussing risks with patients. Justice Campbell rejected the objection and allowed these statements to stand for what they were – statements as to usual practice.

This was followed the next day with an objection to the evidence of Dr R, a senior specialist surgeon. Dr R had been instructed by the plaintiff's lawyers to assess any disfigurement of the plaintiff resulting from the scarring she suffered because of the multiple abdominal surgeries she underwent in 2010. Notwithstanding that his instructions did not seek his opinions on issues of liability, his report nonetheless expressed opinions about "the use of drains in abdominal surgery, the phenomenon of prosthetic surgical-mesh infection, and the desirability of removing the mesh in the face of it as a means of avoiding its deterioration to the very serious type of infection suffered by the plaintiff in this case".

As Justice Campbell explained7:

[Dr R] is a plastic and reconstructive surgeon with a particular interest in the surgery of the hand. The argument about his expertise I think relates to the question that the business, if I may put it that way, of repairing incisional hernias is the business of the general surgeon with an interest in work of that type and that a specialist plastic surgeon has different specialised knowledge and is in a different field of expertise from the four general surgeons who will give concurrent evidence.

Justice Campbell noted that no objection was taken to Dr R's report at the time it was served. While questions had been raised about whether Dr R should be permitted to participate in the conference of experts convened in February 2015, "no frank objection was articulated, propounded and ruled upon at the time the matter was referred".

Justice Campbell referred to the discussion of the admissibility of expert evidence in Dasreef Pty Limited v Hawchar8, identifying three conditions of admissibility:

  1. Relevance: Justice Campbell held that, given the opinion's Dr R had expressed, which were plainly based on his own expertise, this condition had been met.
  2. Specialised knowledge: Justice Campbell held that there 'could be no serious question' that Dr R has 'certain' specialised knowledge and that this was clearly relevant specialised knowledge.
  3. The opinions expressed are in fact substantially based upon the expert's specialised knowledge: Justice Campbell held that this was the case.

Justice Campbell concluded this judgment by stating9:

Naturally of course, as in all cases, different views have been expressed about these questions and the admissibility of [Dr R's] report will go in to the evidential mix to be assessed with the rest of the evidence, particularly the concurrent evidence I will hear this afternoon. I am satisfied that the report is admissible and I will admit it on the tender of Mr Bartley of Senior Counsel.

The Trial

The final twist in the case (thus far10) occurred when, during the trial, Counsel for the defendant flagged his understanding that the joint report recording the apparent agreement about the cause of Ms Tinnock's psychiatric condition did not actually represent Associate Professor R's opinion.

On hearing this news, Justice Campbell11:

  1. Noted that, when such a difficulty arises Practice Note SC Gen 11, and the rules, in particular r 31.27(5) of the Uniform Civil Procedure Rules 2005 (NSW), contemplate that the expert will as soon as possible provide the report to the party by whom he has been qualified explaining the change in opinion from that expressed in the previous report.
  2. Observed that, where there had been a conference of experts that had apparently reached agreement, justice between the parties required that the other party's qualified expert be given the opportunity to deal with the matter.

Responding to these views, the defendants obtained and served a supplementary report from Associate Professor R. The plaintiff objected to the report being received in evidence. Having considered the new report, Justice Campbell said that12:

... it is not so much a situation where [Associate Professor R] has changed his mind as a case of him being mistaken about the true meaning of the first question he answered where he apparently accepted that the psychiatric condition he diagnosed was caused by the surgical complications.

Justice Campbell concluded that13:

... given that the rules and the Practice Note seem to contemplate that an expert may change his or her mind, I proposed to allow the defendant to rely upon the new report.

Unfortunately, the delay caused by the debate on this issue meant that the plaintiff's expert, who had been available for concurrent evidence, had since left the country and was 'in a remote location' where contact was apparently difficult. (As it happened Associate Professor R was also interstate, but had agreed to appear by video link.) As the defendant would not waive its right to cross-examine the plaintiff's expert, the only option was to adjourn the case yet again. In this respect Justice Campbell observed14:

This reflects my expressed view that given the difference which has emerged since the last conference, it is almost certainly essential that they give evidence concurrently...

Conscious of the likely impact of yet another delay, Justice Campbell also said15:

I am well aware that adjournments cause distress and vexation to litigants of a type that cannot be adequately compensated by orders for costs and the like. In this case, Mrs Tinnock has a strong desire to see her case concluded. The matter has been in the lists of first the District Court and then this Court since about 2012, and has been twice adjourned for reasons not of her doing and for which her legal advisers have not been responsible. Likewise, the surgeon, [Dr P], who has given evidence before me, has a strong desire to see the matter finalised. These cases involve potential reputational injury to the professionals involved. Doubtless, he would just as soon see this matter behind him, one way or the other. So both parties have that strong motivation to see the case concluded.

Unfortunately, in the circumstances that have arisen, it is not possible to do procedural justice to the parties without giving them an opportunity to have their psychiatrists give evidence before me before a determination is made, and I propose to grant the adjournment.

Significance

As the circumstances of this matter demonstrate, some of the difficulties that conferences can throw up on more difficult cases include:

  • Conferences between experts with different expertise.
  • Disagreement on the instructions and/or issues to be considered at conferences.
  • The introduction of additional evidence or experts after a conference has been held.
  • The impact of post-conference interlocutory actions.
  • Changes in expert opinions (or claims of improper understanding of the task).

As a result, joint conferences of experts do not always result in the efficient resolution of disputes or, indeed, clarity as to what the views of an expert on significant issues might be.

Some of these issues are unique to conferences, and some may arise even with traditional expert reports. In any event, debate will no doubt continue as to the benefits produced by joint conferences of experts.

Footnotes

1 This judgment deals with the question of privilege in relation to drafts of [Dr P's] witness statements. It is not discussed in this summary.
2 Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151, at paragraph 9.
3 Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151, at paragraph 5.
4 Tinnock v Murrumbidgee Local Health District [2015] NSWSC 188, at paragraph 5.
5 Tinnock v Murrumbidgee Local Health District [2015] NSWSC 188, at paragraph 12.
6 Tinnock v Murrumbidgee Local Health District, [2016] NSWSC 86, at paragraph 15
7 Tinnock v Murrumbidgee Local Health District (No 3), [2016] NSWSC 88, at paragraph 4
8 [2011] HCA 21; 243 CLR 588.
9 Tinnock v Murrumbidgee Local Health District (No 3), [2016] NSWSC 88, at paragraph 13
10 The most recent judgment (No. 5) records that the trial of this matter is presently adjourned for the purpose, inter alia, of the psychiatrists holding a further joint conference to address what Justice Campbell described as "... the following single issue: what is the cause or causes of Mrs Tinnock's psychiatric condition as diagnosed by you?". The trial was scheduled to resume on 16 and 17 June 2016.
11 The most recent judgment (No. 5) records that the trial of this matter is presently adjourned for the purpose, inter alia, of the psychiatrists holding a further joint conference to address what Justice Campbell described as "... the following single issue: what is the cause or causes of Mrs Tinnock's psychiatric condition as diagnosed by you?". The trial was scheduled to resume on 16 and 17 June 2016.
12 Tinnock v Murrumbidgee Local Health District (5) [2016] NSWSC 109, paragraph 8.
13 Tinnock v Murrumbidgee Local Health District (5) [2016] NSWSC 109, paragraph 9.
14 Tinnock v Murrumbidgee Local Health District (5) [2016] NSWSC 109, paragraph 13.
15 Tinnock v Murrumbidgee Local Health District (5) [2016] NSWSC 109, paragraphs 15-16.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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