Objection has been taken by senior counsel for the defendant to various parts of a series of reports of Dr Caldwell, Orthopaedic Surgeon, which are sought to be relied upon by the plaintiff. In order to place these objections into some context it is necessary for me to set out a number of factual matters.
The plaintiff has brought proceedings against the defendant in negligence arising out of surgery which was conducted by the defendant in France on 3 January 2011. Shortly put, on 6 December 2010 the plaintiff was playing professional Rugby League in France when he suffered a rupture of the anterior cruciate ligament in his right knee. The defendant, an Orthopaedic Surgeon, carried out an operative procedure in the course of which he reconstructed the plaintiff's anterior cruciate ligament. After a period of rehabilitation and post‑operative review by the defendant, the plaintiff returned to Australia in August of 2011. He has given evidence to the effect that his intention at that time was to train with a local football club with a view to building up strength in his knee so that he could return to playing competitive Rugby League in France the following year.
Due to various circumstances, including the fact that he continued to experience pain in his knee, the plaintiff decided that he would not return to France but would continue training in Australia. He has given evidence that in September of 2011, whilst he was in the course of doing a particular training drill, he felt a click in his right knee which caused pain, as a consequence of which he fell to the ground. He consulted his general practitioner, Dr McGeoch, who referred him to Dr Halpin. Dr Halpin, who saw the plaintiff in October 2011, referred him to Dr Caldwell.
When the plaintiff first saw Dr Caldwell in November of 2011, he was advised that he would need revision surgery. Dr Caldwell then performed a right knee arthroscopy on the plaintiff on 28 February 2012. Testing of fluid which was drained from his knee in that operation confirmed the presence of an infection. The plaintiff thereafter underwent further surgery by Dr Caldwell.
As one might expect in the circumstances that I have outlined, Dr Caldwell, having operated on the plaintiff, reported periodically to Dr Halpin. The plaintiff seeks to rely on a series of those reports, as well as a medico‑legal report provided by Dr Caldwell. In the course of those reports Dr Caldwell expressed a number of adverse views about the standard of the surgery carried out by the defendant. The plaintiff seeks to rely on those opinions. The defendant objects to them.
Further, and again as one might expect given the circumstances in which Dr Caldwell's reports were generated, there has been no acknowledgement by Dr Caldwell of the Expert Witness Code of Conduct ("the Code"). It was in these circumstances that on 5 April 2019 those acting for the defendant wrote to the plaintiff's solicitors stating:
"Please advise whether Dr Caldwell will adopt the Expert Code of Conduct for the purpose of this proceeding or whether he is going to provide a written statement as a witness at the hearing of this matter."
There was no response to that correspondence.
On 12 July 2017 the plaintiff's solicitors wrote to Dr Caldwell posing a series of questions and asking him for his report. The final paragraph of that letter stated:
"We ask you to kindly incorporate in your report an acknowledgement that you are aware of the Uniform Civil Procedure Rules 2005 ‑ sch 7 Expert Code of Conduct and agree to adhere to it. If you require a copy of the Expert Code of Conduct (current version ‑ 9 December 2016), please advise."
Dr Caldwell then provided a report of 10 August 2017, part of which is the subject of some of the objections which are now taken. There was no reference to the Code in that report. Having received it, the plaintiff's solicitors again wrote to Dr Caldwell on 30 August 2017 stating, amongst other things:
"In our report request we indicated that we required you to acknowledge that you would comply with the witness code of conduct for the purpose of your report. A copy of the code is attached. Will you please confirm with us that you agree to adhere to the witness code for the purpose of your first report and this supplementary report."
Again at the conclusion of that correspondence the following was stated:
"We ask you to kindly incorporate in your report an acknowledgement that you are aware of the Uniform Civil Procedure Rules 2005 ‑ Schedule 7 Expert Code of Conduct and agree to adhere to it. A copy of the Expert Code of Conduct (current version ‑ 9 December 2016) is attached."
On 17 October 2019, Dr Caldwell wrote to the plaintiff's solicitors acknowledging his awareness of the Code and agreeing to be bound by it:
"I am writing to confirm that I have read the Schedule7 Expert Witness Code of Conduct. I understand that the general duties to the Court [sic] is not to advocate for any particular party, but to give an impartial assessment of the matters relevant to the area of my expertise."
Having set out a short précis of his professional background, and having acknowledged that he had read the Code and agreed to be bound by it, Dr Caldwell said:
"My opinion is based on the material presented to me and my observations of the findings during my examination and surgical treatment of Mr Lucas Miller."
The objections taken to those parts of the reports of Dr Caldwell are as follows.
Firstly, in his report of 1 November 2011 [1] to Dr Halpin, Dr Caldwell stated:
"Frankly, I think he has had a poorly done reconstruction without good stability and his medial side is still loose."
In that report specific objection has been taken to the expression of opinion by Dr Caldwell that the plaintiff had undergone a "poorly done reconstruction".
Secondly, objection is taken to that part of Dr Caldwell's report of 9 November 2011 [2] to Dr Halpin, in which he stated that X‑rays:
"...confirm that the femoral position of his tunnels are quite vertical, in almost the 12 o'clock position and are not really suitable for a successful ACL reconstruction."
Objection is taken to the reference to the femoral tunnel position "not really (being) suitable for a successful ACL reconstruction".
Thirdly, in an operation report of 28 February 2012 [3] Dr Caldwell firstly made reference to an examination "indicating inadequacy of the reconstruction", before going on to express the view that "the graft was manifestly inadequate", and "completely in the wrong position". Both of those passages are objected to, as well as Dr Caldwell's opinion that the graft was "highly" vertical.
Fourthly, in an operation report of 13 March 2012, [4] objection is taken to the reference by Dr Caldwell, having explored the notch in the knee, to there being "a completely malpositioned graft in a very inverted position".
Fifthly, in a further report of 1 April 2015, headed "To Whom it May Concern", Dr Caldwell again expressed the opinion that X‑rays showed that the plaintiff "had a poorly positioned graft in a quite vertical position." Objection is taken to that part of that report.
Sixthly, in the report of 10 August 2017 [5] addressed to the plaintiff's solicitors, objection is taken to the references by Dr Caldwell to the fact that X‑rays "showed that (the plaintiff) had a poorly positioned graft", as well as to the fact that the position of the femoral tunnel "was often wrong and too vertical, leading to a lack of control of rotational stability".
Seventhly, in a further report to the plaintiff's solicitors of 7 September 2017 [6] Dr Caldwell again expressed the opinion that the plaintiff "had a poorly performed reconstruction with incorrect positioning of the graft." Objection has been taken to that expression of opinion, as well as to the expression of opinion that the plaintiff "would have required re‑surgery in any event".
Finally, objection is taken to an arthroscopy report in which Dr Caldwell has noted a "v slim badly placed graft."
The bases of these various objections are essentially twofold. Firstly, senior counsel for the defendant submitted that I should reject the tender of the identified parts of the reports because of the absence of any acknowledgement by Dr Caldwell of his understanding of, or a willingness to be bound by the Code. Senior counsel stressed the importance of the Code and the rationale which underpinned its introduction. He submitted that in these circumstances the omission of any reference to it could not be rectified (as it were) ex-post facto by the letter recently provided by Dr Caldwell.
Secondly, and more substantively, senior counsel submitted that in each case there had been no exposition of any reasoning process by Dr Caldwell to underpin the opinions that he had expressed.
Senior counsel for the plaintiff firstly submitted that in circumstances where Dr Caldwell is a well‑known orthopaedic surgeon, and a well‑known witness, and in circumstances where he had provided the correspondence to which I earlier referred, the irresistible inference was that he was aware of the Code, aware of the obligations that it imposed upon him, and had agreed to be bound by it.
As to the remaining objection, senior counsel for the plaintiff submitted that in each case the reasoning process which underpinned the opinions expressed was to be drawn, in each case, from the balance of the report, and from those parts of each report which preceded the expression of such opinions. Taking, as an example, the report of 1 November 2011, it was submitted that the reasoning process leading to the opinion that the plaintiff had undergone a poorly performed reconstruction was to be found in the history which was recorded by Dr Caldwell, his assessment of the radiological investigations, and his findings on examination.
To the extent that objection was taken to the admissibility of parts of the reports because of the absence of any reference to the Code, r 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) is in the following terms.
31.23 Code of conduct
(1) An expert witness must comply with the code of conduct set out in Schedule 7.
(2) As soon as practicable after an expert witness is engaged or appointed:
(a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or
(b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct, must provide the expert witness with a copy of the code of conduct.
(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.
(4) Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert's report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.
That rule confers a discretion on the Court to admit an expert report, notwithstanding the absence of a reference to the Code. An ex-post facto adoption of the Code is not necessarily unusual. Whether it will provide a sufficient basis on which to exercise the discretion to admit the evidence is something that must be determined according to the facts and circumstances of the particular case. There have been instances in which evidence has been admitted in such circumstances. [7] Equally, there have been instances in which such evidence has been excluded. [8]
In O'Reilly v Western Sussex NHS Trust (No 2) [9] Garling J, when faced with making a similar determination, concluded [10] that there were several factors which were relevant to the exercise of his discretion, including the fact that the expert in that case was an experienced expert who had previously given evidence in this Court, as well as other Courts in Australia. The relevant factors also included that there was evidence that the expert had in mind the substance of the Code, that he was not adopting the role of an advocate for one party, and that he was expressing his opinion independently and objectively. In all those circumstances his Honour was satisfied [11] that it was in the interests of justice for the evidence to be admitted. He concluded that he had no reason to doubt that in his reports, and in the course of giving evidence, the expert would act in accordance with the Code.
In my view, similar observations can be made in the circumstances of the present case. One cannot doubt Dr Caldwell's experience, and I am satisfied from the letter that he recently provided to the plaintiff's solicitors that he had the Code in mind at least when preparing his most recent reports to the plaintiff's solicitors.
However, there is a second and more substantive objection which has been taken to the admissibility of this evidence, namely whether the opinions expressed by Dr Caldwell comply with s 79 of the Evidence Act 1995 (NSW) (the Act) which governs the admissibility of expert opinion.
Fundamental to the admissibility of expert opinion evidence is an exposition, by the expert, of how the field of specialised knowledge in which he or she is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed, so as to produce the opinion propounded. [12] In other words, in order to be admissible under s 79 the expert must set out and expose the reasoning process which led to his or her expressions of opinion.
In each case where objection has been taken by the defendant to parts of Dr Caldwell's reports, I am not satisfied that the reasoning process has been exposed.
Firstly, in terms of his report to Dr Halpin of 1 November 2011, I am unable to accept the submission that the basis of Dr Caldwell's expression of opinion that the plaintiff underwent a poorly performed reconstruction is exposed from what precedes it. The fact that Dr Caldwell undertook a clinical examination, the fact that he made reference to X‑rays, and the fact that he was aware of the history giving rise to the plaintiff's knee problem, does not expose any reasoning process at all. Using this report as an example, in order to be admissible it would be necessary, in my view, for Dr Caldwell to explain what it was about the examination which he conducted which led him to form the view that he did, and what it was about the history of the plaintiff's difficulties which led him to form that view. Merely documenting the fact of an examination and the fact of a history exposes no reasoning process whatsoever.
Similar observations may be made in relation to the balance of the objections which have been taken. In the report of 9 November 2011 Dr Caldwell expressed the view that what had been done was "not really suitable for a successful ACL reconstruction". He expressed that view by reference to X‑rays which he viewed at the time of preparing his report. Whilst he confirmed what the images showed, he did not explain how they demonstrated why the ACL reconstruction had not been successful. In that respect, his opinion suffers from the same vice as that contained in the report of 1 November 2011.
In the operation report of 28 February 2012 [13] Dr Caldwell did not explain why there was an indication of inadequacy of the reconstruction, and what led him to that particular view. He referred, in expressing that opinion, to the fact of his examination, but in my view the report is bereft of the exposition of the reasoning process which led him to the opinion that he expressed. Similar observations can be made in relation to other parts of the report to which objection was taken, in the course of which Dr Caldwell referred, amongst other things, to the manifest inadequacy of the graft. There is no indication at all as to why, or on what basis, he came to that view.
Similarly, in the operation report of 13 March 2012 [14] Dr Caldwell did not explain how the graft was malpositioned. I do not accept the submission that Dr Caldwell's observation that the graft was malpositioned, and in an inverted position, should be categorised as an observation, or a statement of fact. It is an expression of expert opinion which is absent, in my view, a proper foundation.
In his report to the plaintiff's solicitor of 10 August 2017 [15] Dr Caldwell again made reference to a "poorly positioned graft". That is essentially a repeat of the opinions he previously expressed, and is similarly bereft of the exposition of any process of reasoning which led him to form that view. In my view it is no answer to say that such matters were evident from an X‑ray.
The report of 1 April 2015 which is addressed "To whom it may concern" essentially repeats the observations contained in the report of 1 November 2011 and those observations should be rejected for the reasons that I have previously stated.
Similarly, in his report of 7 September 2017 Dr Caldwell did not explain why he formed the view that the reconstruction was poorly performed. It must be emphasised that such matters are not to be left to guess. There is also no reasoning process underpinning Dr Caldwell's expressed view that the plaintiff would have required re‑surgery in any event.
For the same reasons, the observation of Dr Caldwell in the arthroscopy report, namely that there had been a "very slim badly placed graft", should be excluded.
It may well be that in the vast majority, if not all, of these instances, the absence of exposition of a reasoning process is due to the circumstances in which the reports were prepared. As I have already observed, the majority of them are in the nature of reports sent by Dr Caldwell to Dr Halpin documenting the plaintiff's progress, in circumstances where it was Dr Halpin who referred the plaintiff to Dr Caldwell in the first instance. In that regard the position is not dissimilar from that which was considered by the Court of Appeal in Sudesh Sharma v Insurance Australia Limited (t/as NRMA Insurance). [16] I accept that for the purposes of correspondence of that nature it may well have been within Dr Caldwell's province to express the opinions that he expressed. However, where they are sought to be relied upon as an expert opinion, s 79 of the Act requires a far more stringent approach to be taken. The circumstances in which the reports were prepared do not provide a reason to ignore the provisions of the Act which govern the admissibility of the opinions contained within them.
For those reasons, I uphold the objections to Dr Caldwell's reports which have been made by the defendant.
[2]
Endnotes
Exhibit A, p.207.
Exhibit A, p.205.
Exhibit A, p.203.
Exhibit A, p.201.
Exhibit A, p.189.
Exhibit A, pp.193-194.
Barak Pty Ltd v WTH Pty Ltd trading as AVIS Australia [2002] NSWSC 649.
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC at 980.
[2017] NSWCA 55.
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Decision last updated: 27 February 2020