Australia: Seeking leave to tender supplementary expert evidence in Qld personal injury proceedings

IN BRIEF - A PARTY MAY BE DENIED LEAVE TO TENDER SUPPLEMENTARY EXPERT EVIDENCE IF INSUFFICIENT NOTICE IS PROVIDED TO THEIR OPPONENT

In Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, the Queensland Court of Appeal reiterated that in personal injury claims litigated in Queensland, Chapter 14, Part 2 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) requires the parties to put their expert evidence "cards on the table, face up"*.

SUPPLEMENTARY MEDICAL EVIDENCE ACCEPTED BY TRIAL JUDGE

Mr Mashaghati (the plaintiff) suffered a head injury in a motor vehicle accident in 2011. Liability was admitted by the CTP insurer but expert medical opinions obtained in 2012 and 2013 from two neurologists, a neuropsychologist and two psychiatrists, were divided as to whether the plaintiff had suffered a mild organic brain injury, a post-traumatic stress disorder, or both.

Following the accident, the plaintiff returned to Germany and gave his evidence to Court by way of video-link on 29 February 2016 and 1 March 2016. The video evidence was not recorded.

Without advising the defendant, arrangements were made by the plaintiff's legal representatives for a psychiatrist and a neuropsychologist to sit in the Court and monitor the plaintiff's evidence. These experts were asked to provide supplementary reports, which were disclosed to the defendant's counsel, although not immediately.

The psychiatrist considered that the manner in which the claimant gave his evidence reinforced his view that the plaintiff had suffered a minor brain injury.

The neuropsychologist considered that the evidence permitted her to conclude that the plaintiff had probably suffered a minor brain injury.

The supplementary reports were admitted into evidence by the trial judge over the objection of the defendant's barrister and the defendant's request for an adjournment was refused.

The trail judge accepted the opinions of the psychiatrist and neuropsychologist who had observed the plaintiff giving evidence by video-link, because they had the advantage of assessing the plaintiff more recently than the other experts. In addition, the experts' observations about the plaintiff's behaviour corresponded with what the trial judge had observed.

DISCLOSURE RULES GOVERNING PERSONAL INJURY MATTERS

The Court of Appeal held that the supplementary reports should not have been accepted into evidence, and that the adjournment ought to have been granted.

The trial judge had incorrectly proceeded on the basis that he had a broad discretion under Rule 427 (2)(b) of the UCPR to grant a party leave to tender evidence which had not been disclosed in accordance with the UCPR. His discretion miscarried because he did not consider the provisions of Chapter 14, Part 2 of the UCPR which relates specifically to proceedings for damages for personal injury or death. Under Rule 548 of the UCPR, evidence not identified in the plaintiff's statement of loss and damage can only be tendered if that is done by consent, or if the evidence is tendered in cross-examination, or if the court gives leave for "special reason".

The Court of Appeal commented that it was understandable that the plaintiff's legal representatives would want to obtain supplementary medical opinions, and that the cost of bringing the plaintiff back to Australia for those examinations may have been prohibitive. What was not explained is why interviews could not have been arranged between the plaintiff and the experts by video-link prior to the hearing, or why the plaintiff's representatives did not tell opposing counsel that the experts would be in the Court observing the plaintiff's evidence with a view to providing supplementary opinions. The defendant was denied an opportunity to arrange for the experts it had briefed to observe the plaintiff's evidence, and it had limited opportunity to prepare cross-examination of the medical witnesses briefed by the plaintiff.

The reasons which the trial judge gave for preferring the evidence of the plaintiff's witnesses served to illustrate the corresponding forensic disadvantage affecting the defendant.

The Court rejected that the existence of credit issues in the case could ever constitute a "special reason" warranting a grant of leave under Rule 548 of the UCPR. (Note that Rule 551 (4) of the UCPR imposes a similar obligation on defendants and their insurers.)

The Court of Appeal overturned the District Court judgment, ordered a retrial, and awarded the defendant its costs of the appeal.

WHAT TO DO IF SEEKING THE COURT'S LEAVE TO TENDER EXPERT EVIDENCE LATE

Circumstances can arise where a party is unable to strictly comply with rules governing disclosure of expert evidence.

Where a party requires a grant of leave from the Court, it is important that legal practitioners direct the trial judge to the correct rules controlling the exercise of the judge's discretion.

In the present case, the Court of Appeal observed (at [87]) that "the days of the well-plotted forensic ambush leading to victory [are] well and truly over". In personal injury claims, it is important to be frank with opposing legal practitioners and to provide them with sufficient information and notice to allow them to address any forensic disadvantage that a grant of leave may cause. If this is done, the prospects of obtaining the grant of leave will be enhanced, and the risk of appeal reduced

*The expression that a party must "put its cards on the table, face up" is traced to the reasons of Pincus JA in Parr v Bavarian Steak House Pty Ltd [2000] QCA 429.

Stuart Unwin
Insurance and reinsurance
Colin Biggers & Paisley

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