COWIE v O'BRIEN
[2019] SASC 203
•22 November 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master)
COWIE & ANOR v O'BRIEN
[2019] SASC 203
Judgment of The Honourable Justice Kelly
22 November 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
Where plaintiff-respondent made a request for discovery of expert reports – where an email communication between a neonatal medical expert and the appellant-defendants’ solicitors was not disclosed until after the written expert report was prepared – where the Master ruled that the email communication constituted an expert report.
Whether the Master erred in determining that the email communication met the definition of expert report pursuant to r 4 of the Supreme Court Civil Rules 2006 – whether the Master ought to have heard the matter in circumstances where the appellant-defendants had admitted liability – whether the Master erred in concluding that r 160 applied to the email communication prior to the preparation of the written expert report.
Held: no error has been established. The appeal is dismissed. The matter is remitted to the Master to finalise orders consequential on the respondent’s application as determined on 11 September 2019.
Supreme Court Civil Rules 2006 (SA) r 4, r 160, referred to.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"expert report"
COWIE & ANOR v O'BRIEN
[2019] SASC 203Civil: Appeal from a Master
KELLY J.
Introduction
The appellants in this matter are the defendants in an action for damages brought by the respondent, as plaintiff, for physical and intellectual injuries suffered during her birth. The appellants are doctors who were involved in the respondent’s birth.
The appellants appeal against the decision of a Master of this Court, made on 11 September 2019, that an email communication from Associate Professor Nick Evans, a neonatal medical expert, dated 18 March 2015 (‘the Evans email’) is an expert report within the meaning of r 4 and r 160 of the Supreme Court Civil Rules 2006 (SA) (SCR). That decision followed an application by the respondent for the Court to rule on the specific question of whether or not the Evans email is an expert report.
On appeal, the appellants contend that the Master erred by permitting a hearing to proceed on the limited issue of whether the Evans email constituted an expert report in circumstances where the appellants had already admitted liability and where there was therefore no utility in bringing the application. The appellants further contend that the Master erred in concluding that the Evans email itself was an expert report within the meaning of SCR 4, and in finding inferentially that SCR 160 therefore applied to the Evans email prior to the preparation of the formal expert report of Associate Professor Evans dated 4 September 2018. The appellants further contend that the Master erred in not distinguishing between an ‘expert report’ and a ‘communication between an expert and a party relevant to the preparation of a report’, and in consequently finding that the Evans email was not privileged.
Background
The history of the proceedings and the state of the pleadings from time to time are relevant to an understanding of the basis of the respondent’s application before the Master.
The respondent filed her summons and statement of claim on 28 March 2017.
Prior to that, the respondent gave notice by way of the pre-action protocol requirements.
The issue of liability remained in dispute until 19 December 2018 when both appellants admitted liability in their respective fourth defences. Prior to that, in the first,[1] second[2] and third[3] defences of each appellant, the issue of liability continued to be a live one.
[1] Filed on 3 and 12 May 2017 respectively.
[2] Filed on 15 and 16 November 2017 respectively.
[3] Both filed on 27 November 2018.
At the time when discovery was required of any expert report in mid-2017, liability and causation were still in issue.
Neither the list of documents filed by the first appellant on 31 January 2018 nor the list of documents filed by the second appellant on 5 February 2018 contained any reference to a report from Associate Professor Evans. However, as the respondent had become aware that Associate Professor Evans had been consulted by the appellants in relation to the matter, on 18 June 2018, the respondent issued an application to investigate whether such a report had been prepared. That application was heard before the Master on 21 June 2018. At that hearing, counsel for the second appellant advised the Court that Associate Professor Evans had not provided an expert report and that that fact would be confirmed in writing. In a letter dated 22 June 2018 and addressed to the respondent’s solicitors, the second appellant’s solicitor confirmed that no expert report from Associate Professor Evans had been provided.
By email on 28 June 2018, in response to an email from the respondent’s solicitor sent earlier that same day, Associate Professor Evans advised the respondent’s solicitor that he had not prepared a report on the matter.
Subsequently, the first appellant did obtain a written expert report from Associate Professor Evans, dated 4 September 2018. That report was shortly thereafter provided to the second appellant’s solicitors and to the respondent’s solicitors on 7 September 2018, along with various correspondence and hand notes of conversations had with Associate Professor Evans since January 2015, including the Evans email dated 18 March 2015, which was addressed to the solicitors for both the first and second appellants. The Evans email is reproduced in full below:
Dear Andrew, John,
Had a look through the neonatal notes. It’s a bit hard to judge from the Whyalla notes but what information there is doesn’t point to oxygen levels that would be a dominant cause of Georgia’s brain injury. Her first gas at Flinders was mildly acidotic but again not to a degree that would point to severe tissue hypoxia. Her blood pressure measures after she got to Flinders were all normal.
Her postnatal course was a symptom of her antenatal compromise. I can’t exclude a contribution but likely to be minor compared to antenatal. Again there’s no way this can be quantified.
Nick Evans
Later that same day, on 7 September 2018, the respondent issued a request pursuant to SCR 160(5) seeking details of communications between Associate Professor Evans and the appellants since first contact with him in about September or October 2011. Those requested materials were subsequently provided to the respondent in the fullness of time.
The failure to provide the Evans email dated 18 March 2015 at the time it was received was the subject of the respondent’s application and the argument before the Master on 16 May 2019, resulting in the 11 September 2019 decision which is the subject of this appeal. The respondent contended before the Master that the Evans email constituted an expert report and therefore ought to have been disclosed prior to the disclosure of the full written expert report in September 2018. The Master agreed with the respondent’s submission and it is against that finding that the appellants now appeal.
Discussion
I note that there is nothing inconsistent in the Evans email with the written report completed by Associate Professor Evans on 4 September 2018.
I now turn to consider the appropriate definition of an expert report in accordance with the SCR.
SCR 4 defines an expert report as:
expert report means a report in written or electronic form by a medical or other expert on a question involved in an action (including a report by a medical or other expert on another expert report);
SCR 160 deals with the obligation of the parties in relation to an expert report:
160—Pre-trial disclosure of expert reports
(1)A party must, before the relevant time limit—
(a) obtain all expert reports that the party intends to obtain for the purposes of the trial of the action; and
(b) serve on every other party to the action a copy of each expert report in the party's possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not) not previously served on that party.
Exception—
This rule does not apply to reports obtained, or to be obtained from a shadow expert (see rule 161(1)).
(2)The relevant time limit is the end of a period of 60 calendar days after the time limited for making an initial disclosure of documents.
(2A)A party requesting an expert report is to set out in a letter to the expert –
(a) the assumptions the expert is requested to make for the purpose of expressing an opinion;
(b) the materials provided to the expert for the purpose of expressing an opinion;
(c) the questions on which the expert is asked to express opinion.
(2B)A party requesting an expert report is within five business days of sending a letter to an expert under subrule (2A) to serve on each other party to the action a copy of the letter.
(2C)To the extent practicable, when preparing a report (a responsive report) in response to or in the same field of expertise and dealing with the same subject matter as an expert report by another expert (a prior expert), an expert should confer with the prior expert about the assumptions and opinions the subject of their respective reports.
(3)An expert report should—
(a) set out the expert's qualifications to make the report;
(b) set out the facts and factual assumptions on which the report is based;
(c) identify any documentary materials on which the report is based;
(d) distinguish between objectively verifiable facts and matters of opinion that cannot be (or have not been) objectively verified;
(e) set out the reasoning of the expert leading from the facts and assumptions to the expert’s opinion on the questions asked;
(f) set out the expert’s opinion on the questions asked;
(g) identify whether the expert has complied with subrule (2C) and if not why not;
(h) identify the differences (if any) in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any);
(i) comply with any requirements imposed by Supplementary Rules.
(4)However, if an expert has provided a previous expert report to a party, a report complies with subrule (3) if it refers to material contained in the previous report without repeating it.
(5)A party who has disclosed an expert report, and proposes to rely on evidence from the expert at the trial, must, at the request of another party, provide the party making the request with—
(a) a copy of documentary material (including material in the form of computer data) on which an expert has relied for making a report; and
(b) details of any fee or benefit the expert has received, or is or will become entitled to receive, for preparation of the report or giving evidence on behalf of the party; and
(c) copies of written communications and details of any oral communications relevant to the preparation of the report—
(i)between the party, or any representative of the party, and the expert; and
(ii)between the expert and another expert.
…
(8)Notwithstanding subrule (3) but without affecting the obligation of a party to serve expert reports complying with subrule (3) by the relevant time limit in accordance with subrule (1), a party is at liberty at any time before the relevant time limit to obtain and serve a summary expert report that does not comply with subrule (3).
(9)For the purpose of this rule, a summary expert report is a report that sets out in summary form assumptions made and opinions held by an expert on issues relevant in the action.
(10)For the avoidance of doubt, an expert report (including a summary expert report) served under this rule is not subject to legal professional privilege and may be the subject of questions at trial and, if otherwise admissible, may be tendered in evidence at trial.
(11)If a party obtains an expert report (including a summary expert report) before the relevant time limit, unless the Court otherwise orders, the party is within five business days of receipt to serve a copy of the report on each other party to the action.
The appellants contend that the meaning of ‘report’ for the purpose of SCR 160 is a report in the nature of a considered statement in response to a request, following an investigation containing in substance the fact, reasoning and expert opinion in response to the enquiry. The appellants contend that there is a distinction to be made between reports and communications with an expert, which do not have to be disclosed, and the written report of an expert, which does have to be disclosed, based not on the fact of whether it contains an opinion or not, but on the basis of the structure of the report. That is to say, whether the report complies with the criteria set out in SCR 160(3).
I have reproduced SCR 160 in full noting that it includes sub-rules (8) to (11) which explicitly deal with a summary expert report.
Those provisions reinforce the conclusion that the purpose of this rule relating to expert reports is to encourage and facilitate the expeditious resolution of contested issues between litigants. In pursuing that purpose, to use an often-quoted phrase, the rules are servants not masters.
To my mind, the definition of expert report contended for by Mr Livesey QC runs counter to that object. The question of whether a report falls within the definition of either SCR 4 and SCR 160 should not be determined on the basis of form over substance. Such an interpretation would allow a party to evade responsibility for disclosure by simple formatting of advice received to evade the description of a report contained in SCR 160.
Here, the appellants were in possession of the email communication of Associate Professor Evans since 2015. They were in possession of that material at the time when disclosure should have been made in mid-2017. Almost another two years were to pass before the appellants finally admitted liability on 19 December 2018. The timing of that admission appears to be shortly after Associate Professor Evans’ written report was received.
This leads to the appellants’ second contention that the respondent’s application lacked utility at the time it was made and that it was made for a collateral purpose and therefore ought not to have been entertained.
Although it is true that at the date of the application liability was no longer in issue, it had remained in issue until shortly after the written report of Associate Professor Evans was disclosed.
The fact that the appellants obviously regarded the Evans email of 18 March 2015 as something other than an expert report within the meaning of SCR 160 arguably led to the prolongation of the determination of the issue of liability for a period of almost two years. That is, in itself, a reason to reject the appellants’ argument as to the proper interpretation of ‘expert report’ within the meaning of SCR 4 and SCR 160.
In any event, in order to succeed on appeal, it is necessary for the appellants to establish error, such as acting upon a wrong principle, giving weight to extraneous or irrelevant matters, or failing to give any weight or sufficient weight to relevant considerations.
It was not an error for the Master to proceed to determine the application.
This Court should not adopt a technical and narrow approach to the definition of ‘expert report’ which may have the effect of encouraging litigants to prolong interlocutory procedures, the resolution of which distracts the parties from taking steps to a final hearing.[4]
[4] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303, [59] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
To my mind, if the appellants’ contention were to be accepted that would be the likely result. To that extent, it cannot be said that the respondent’s application lacks any utility. The appellants have not established that the Master made any other error which would justify this Court’s intervention.
Conclusion
No error has been established. The appeal is dismissed. The matter is remitted to the Master to finalise orders consequential on the respondent’s application as determined by him on 11 September 2019. I will hear the parties as to costs.
1
0