A recent judgment in the NSW Supreme Court considered the admissibility of new opinions arising out of joint expert conferences. In this article, Andrew Ross examines the judgment and its potential broader implications for expert opinions expressed in joint reports and concurrent evidence.
On 2 September 2012, the father of Christopher Bezer ('Chris') and his step-brother, Troy Bassan died in a car accident. Four days later, Chris and Troy set out from Mendooran in rural New South Wales to see a lawyer in Dubbo about their father's funeral.
At about 10.15 am, the ute Chris and Troy were travelling in ran off the road about 20 kilometres south-west of Mendooran. It travelled around 50 metres before tumbling end on end and coming to rest. Chris was severely injured and had to be extracted from the ute by emergency workers. Troy was only slightly injured and was able to climb out. There were no signs of braking on the road or roadside, suggesting that the driver had fallen asleep.
Chris and Troy had different stories about the trip and the crash.
Chris said that initially he was driving, but he soon asked Troy to drive because he felt tired. They changed positions, put their seatbelts on and recommenced their journey, with Chris having his seat reclined to enable him to sleep. The next Chris knew was that the vehicle left the road and crashed.
Troy said that, when they left Mendooran, he was in the passenger seat, which was reclined. He fell asleep. When he awoke, the vehicle had crashed and was on its side. Chris's foot was "slightly across" his face. Troy moved it off, unbuckled his seatbelt and climbed out. He had 'bits of conversation' with Chris, who was in great pain and could not feel his legs. Chris said to him, amongst other things:
"Mate, can you – I don't have a licence, can you say you were driving for insurance reasons."
Troy agreed. As a result, Troy told a witness at the scene, an ambulance officer, police officers, nurses and a doctor that he had been driving the vehicle when it crashed.
Chris subsequently claimed damages from Troy in proceedings commenced in the District Court, alleging that Troy was the driver. Troy said that Chris was the driver.
At first instance, the District Court found that, on the balance of probabilities, Chris was the driver. This finding was based on a variety of lay and expert evidence, much of which (the Court found) suggested that Troy was in the passenger seat and was wearing his seatbelt whereas Chris was driving without his seatbelt. That evidence included bruising to Troy's left shoulder and torso, which Troy's expert concluded indicated he was both wearing a seatbelt and that he was in the passenger seat. It also included evidence on the extent to which the passenger side seatbelt had been extended, which the same expert concluded was not far enough to fit around Chris's waist. Chris was described as "a large man who was aged 29 and weighed in the range of 110 to 140 kilograms at the time of the accident", while Troy was aged 19 and weighed less than 50 kilograms.
The issues on appeal related mostly to the primary judge's approach to dealing with the evidence on the main issue in contention. However, one of the grounds of appeal was somewhat novel. It related to the treatment by the primary judge of a joint expert report prepared by the two traffic accident experts. This ground was described as follows:
The Primary Judge erred in law by over-ruling an objection by the appellant to the tender by the respondent of material in joint experts' reports going beyond matters that were the subject of agreement by the experts, contrary to UCPR 31.26(4) and thereafter erroneously had regard to such material when making her central findings of fact such that the process of fact finding engaged in by her miscarried.
That joint expert report had been prepared in the usual way, and included each expert's views on whether, on the evidence, the identity of the driver could be established. The primary judge admitted the joint report into evidence and referred to it in her reasons.
The Court dealt with this issue in the following terms1 :
[The appellant's] submission contended that the primary judge erred in admitting those parts of the Joint Expert Report of Mr Keramidas and Dr Gibson which did not record agreements between them. The only such material identified in the submission as being, of itself, of any materiality was Mr Keramidas' opinion as to whether the driver's seatbelt was being worn at the time of the accident. In a passage in the Joint Expert Report that was not tendered, Dr Gibson said that there was insufficient evidence to reach that conclusion.
The appellant relied upon the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 31.26 [set out below].
The opinion of Mr Keramidas which was the focus of the appellant's submission was, by the time of the tender of the Joint Report, already in evidence as part of Mr Keramidas' supplementary report of 30 March 2017. As the admission of that evidence of the opinion was not challenged on appeal, it is sufficient to regard the matters leading to that admission as equally justifying the admission of the further expression of it. Rule 31.26(4) was thus applicable to render the evidence admissible.
The appellant's supplementary submission then contended that 'almost all the rest of the joint report concerned answers to questions that were not the subject of agreement' and ought not to have been admitted. He conceded however that none of these answers were of themselves critical to the outcome of the case.
The opinions of Mr Keramidas expressed in the Joint Report largely, if not wholly, simply reflected opinions that he had expressed in his earlier individual reports, both of which had been admitted into evidence. In the absence of any specification by the appellant of any opinion that went beyond what Mr Keramidas had earlier said, the appellant's submission should be rejected.
Rule 31.26 of the UCPR, referred to in the judgment above, is as follows:
31.26 Joint report arising from conference between expert witnesses
- This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1)(c).
- The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.
- The joint report may be tendered at the trial as evidence of any matters agreed.
- In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.
- Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.
The preparation of joint expert's reports is now commonplace in many jurisdictions in Australia. The Federal Court has described the purpose of joint meetings of experts (that being the context in which joint expert reports are typically prepared) as follows2:
The purpose of the conference of experts is for the experts to have a comprehensive discussion of issues relating to their field of expertise, with a view to identifying matters and issues in a proceeding about which the experts agree, partly agree or disagree and why.
The purpose of the joint expert report is expressed in similar terms3:
At the conclusion of the conference of experts, unless the Court considers it unnecessary to do so, it is expected that the experts will have narrowed the issues in respect of which they agree, partly agree or disagree in a joint-report. The joint-report should be clear, plain and concise and should summarise the views of the experts on the identified issues, including a succinct explanation for any differences of opinion, and otherwise be structured in the manner requested by the judge or registrar.
Given the process discussed in these statements, it would not be surprising (and, indeed, it might be thought to be desirable) that experts who have engaged constructively in a 'comprehensive discussion of issues relating to their field of expertise' may alter some of their previously expressed opinions. While one likely outcome might be the envisaged 'narrowing' of the issues in contention, another might be the clarification of the bases for residual differences in opinions or, indeed, the expression of a new opinion on a relevant matter.
While the Court in this matter did not reject the admissibility of the joint report, the argument raised may have more force in other cases. Lawyers may need to consider whether joint reports prepared in their matters meet the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 31.26 or other similar provisions, especially where new opinions appear in those reports or the bases given for previously stated opinions change. During many joint expert conferences and the associated preparation of joint reports, communication with lawyers is not permitted. There is therefore limited opportunity for deficiencies in the admissibility of joint reports to be rectified before they are signed. Reminding experts of the UCPR requirements prior to joint conferences may limit problems later.
Of course, yet further issues relating to the admissibility of expert opinions may also arise after the tendering of the joint report, particularly in the context of the less structured approach to the provision of expert evidence in the context of concurrent evidence.
1 At paragraphs 57-61
2 Expert Evidence Practice Note (GPN-EXPT), paragraph 7.4
3 Expert Evidence Practice Note (GPN-EXPT), paragraph 7.10
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.