Aitkenhead v Kaufline and Insurance Australia Ltd t/as NRMA Insurance

Supreme Court of the ACT|2014-04-15|Before: Ball J

Under rule 6 of the Court Procedure Rules 2006, the requirements of rule 1203(1) and (2) are dispensed with in relation to the reports of:
- (a) Dr Searle dated 13 March 2010, 27 January 2011, 8 November 2011 and 8 October 2013; and
- (b) two reports of Dr Conrad dated 22 February 2010 and two reports dated 2 October 2013.

1. The plaintiff has applied orally for an order under rule 6 of the Court Procedures Rules that in relation to certain reports of Dr Searle, an orthopaedic surgeon, and Dr Conrad, a surgeon, the requirements of rule 1203(1) and (2) be dispensed with. The circumstances in relation to which that application is made are as follows. Collectively, eight reports of Doctors Searle and Conrad have been served by the plaintiff and are sought to be relied upon. The hearing of these proceedings commenced in November 2013 and were adjourned part heard until yesterday. Today is day three of the hearing and the plaintiff has now concluded his evidence. Yesterday counsel for the defendant gave notice to counsel for the plaintiff that the reports of Doctors Searle and Conrad would be objected to on the basis that those doctors had not acknowledged in writing that they had read the code of conduct identified in schedule 1 of the and agreed to be bound by it. As a consequence, prevented the witness from giving oral evidence, and provided that service of the expert report was invalid service.

2. The defects in the process by which the doctors were engaged and reported are twofold. First, contrary to the obligation in rule 1203(1), the plaintiff's solicitors did not give Dr Searle or Dr Conrad a copy of the expert witness code of conduct as soon as practicable after the doctor was engaged. Second, in relation to each of the reports, while the doctor has indicated in the body of report compliance with at least the expert witness code of conduct provided in schedule 7 to the Uniform Civil Procedure Rules 2005 of New South Wales, the ACT expert witness code contained in schedule 1 is not identified has having been read, nor has the doctor said that he will comply with it.

3. Mr Roberts SC, who appears for the plaintiff, submitted that, having regard to the similarity between schedule 1 and schedule 7, the substantive content of the obligations under those codes are identical. He points to the decision of Ball J in Welker v Rinehart (No 6) [2012] NSWSC 160. In that case his Honour referred to the authorities in the New South Wales Supreme Court dealing with noncompliance with the requirement of UCPR rule 31.23 which requires provision to expert witnesses and adoption by them of schedule 7 of those rules. In particular, he referred to the decision of the New South Wales Court of Appeal in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279. In that case Young JA disagreed with the trial judge's statement of principle that where an expert had prepared a report without regard to the Code there was "a real risk that the expert will have committed to a particular form of opinion," and hence an ex post facto adoption of the Code will not cure the problem. Young JA said that while that view has some validity it cannot be elevated into a general rule. Each case needed to be considered on its merits and the court may consider that the real risk was in fact non-existent or minor. Having referred to this decision, Ball J continued (at [35]):

In my opinion, it follows from what Young JA said that it is necessary to consider all the circumstances of the case in order to determine whether the objectives sought to be secured by UCPR r 31.23 have been affected by the non-compliance. Those circumstances include the nature of the instructions that were actually given to the expert, the expert's prior familiarity with the code, the extent to which the report on its face appears to comply with the code and the evidence subsequently given by the expert concerning the question whether he or she complied with the code at the time and whether his or her opinions have been affected by non-provision of it. It is for the party seeking to lead the evidence to satisfy the court that the non-compliance with UCPR r 31.23 has not affected the objectives of the rule, or that there are other reasons which justify a departure from it.

In that case each expert had sworn an affidavit saying that he had now read the Code and confirmed the opinions expressed in the report. None, however, said that he complied with the code at the time he prepared the report. None said that he had any familiarity with the obligations of an expert giving evidence. The letter of instructions did not give any hint that the expert was to act independently and, indeed, contained language consistent with a less than independent approach. The reports in that case read as if the author saw his task as an advocate for the instructing party's case. As a consequence, his Honour was not satisfied that the requirements of the rules should be dispensed with.

4. Mr Roberts submitted that having regard to the certification in each of the reports that the witness agreed to be bound by at least the equivalent code of conduct in New South Wales, that provided sufficient basis for dispensing with the requirements of the rule in circumstances where there was nothing in the letter of instructions which suggested any partisanship, and where each of the doctors was a doctor who had previously given evidence in this Court and was likely to be well and truly familiar with the nature of the obligations under the Code.

5. While counsel for the defendant accepted that each of the witnesses was a witness who had previously given evidence in the Court he pointed to the terms of rule 1203 and the fact that each and every letter of instructions had failed to provide a copy of the expert witness code or make any reference to the obligations under it.

6. For the purposes of the application the reports in question were not tendered and as a consequence I cannot say anything about their content. Similarly, the dispensation was sought prior to either doctor commencing his evidence and as a consequence there is no oral evidence led that would add to the plaintiff's entitlement or claim to entitlement to an order under rule 6. However, having regard to the position adopted by the parties I proceed on the basis that there was nothing in the reports which would suggest that the witness has acted in a manner inconsistent with that witness's obligations under the ACT Code or the New South Wales Code.

7. The goal of the Code is to ensure that as far as practicable, where experts are engaged by the parties, the expert evidence given to the Court reflects an independent opinion of the witness which is expressed in admissible form in circumstances where the witness has a duty to the Court and a duty to cooperate with other expert witnesses giving evidence in the case.

8. The obligations in the codes are, in substance, the same. Each provides the statement of the expert's general duty to the court (ACT Code clause 1.2 and NSW Code, clause 2), sets out a requirement of the form for expert reports (ACT Code clause 1.3, NSW Code clause 5), sets out the requirements in relation to a conference between experts and the duty of experts to work cooperatively with each other (ACT Code clause 1.4 and NSW Code clauses 4, 6).

9. The requirement to provide a copy of the Code in rule 1203(1) is an attempt, even in relation to witnesses who have given evidence many times before, to put in place a process which will ensure that the salutary terms of the Code are brought to the attention of the witness. In order to ensure that the witness has done more than merely ritually set out a reference to the Code at the end of his or her report, some solicitors go beyond the requirements of the Rule and request that the expert witness sign and return a copy of the Code with the witness's report. This is a useful process as it reinforces with the witness the significance of the witness's duty of independence and impartiality. However, it is not specifically required by the Rules.

10. There was no explanation as to why the solicitors for the plaintiff so persistently failed to comply with their obligations under rule 1203 in circumstances where that had the potential to jeopardise the admissibility of expert evidence put forward on the part of the plaintiff.

11. In my view, any solicitor purporting to be competent to accept instructions in a personal injury case in the Australian Capital Territory should be familiar with the obligations under rule 1203 and routinely give effect to those rules when instructing experts. Similarly, if the circumstances permit it, any such solicitor should take steps to attempt to remedy any defect of which they are aware in relation to their compliance with rule 1203.

12. Notwithstanding, these criticisms in the present case I will exercise my discretion to make an order under rule 6 dispensing with the requirement of rule 1203 to the extent that is necessary, because:

(a) Each witness has accepted an obligation to comply with the Code which is substantially equivalent to that in Schedule 1.

(b) The witnesses, having regard to their previous involvement in cases in this Court, are likely to be aware of their obligation to prepare a report in a manner consistent with the Code and give evidence in a manner consistent with the Code.

(c) There is nothing in the letters of instructions, or the terms of the reports, which would give any indication that the witness has not prepared his report in a manner consistent with the Code.

(d) Notice of the objection was only given shortly prior to the witnesses being called to give evidence in circumstances where the hearing commenced several months ago.

13. As a consequence, I will dispense with the requirements of rule 1203(1) and (2) under rule 6 of the Court Procedures Rules in relation to the reports of Dr Searle, dated 13 March 2010, 27 January 2011, 8 November 2011 and 8 October 2013 and two reports of Dr Conrad dated 22 February 2010 and two reports dated 2 October 2013

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Counsel for the plaintiff: I D M Roberts SC, A R Muller

Civil Procedure Rules 2005

Procedure Rules 2006

Civil Procedure Rules 2005

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