Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer
[2013] NSWDC 297
•01 November 2013
District Court
New South Wales
Medium Neutral Citation: Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer [2013] NSWDC 297 Hearing dates: 1 November 2013 Decision date: 01 November 2013 Jurisdiction: Civil Before: P Taylor SC Decision: I propose to allow Dr Smith to give evidence. If the report is tendered and no other objection is taken to it, I propose to allow it.
Catchwords: EVIDENCE - joint expert report - evidence in conclave - expert absent - whether expert should be allowed to give evidence separately Legislation Cited: Civil Procedure Act 2005, s 56 Category: Procedural and other rulings Parties: 2009/339941
2012/281640
Kathaleen Nicoll (plaintiff)
Dean Dobeson (first defendant)
Robert Hammond (second defendant)
Sussex Inlet RSL Club Ltd (third defendant)
Kathaleen Nicoll (plaintiff)
The Workers Compensation Nominal Insurer (defendant/cross-claimant)
Sussex Inlet RSL Club Ltd (first cross-defendant)
Dean Dobeson (second cross-defendant)
Robert Hammond (third cross-defendant)Representation: Mr H Marshall SC with Mr G Smith (plaintiff)
Mr J Wilson (The Workers Compensation Nominal Insurer)
Mr R Sheldon (Sussex Inlet RSL Club Ltd)
Lough & Wells (plaintiff)
TurksLegal (The Workers Compensation Nominal Insurer)
Lee and Lyons Lawyers (Sussex Inlet RSL Club Ltd)
File Number(s): 2009/339941; 2012/281640 Publication restriction: No
EX TEMPORE Judgment
The plaintiff seeks to exclude the expert report of Dr Selwyn Smith and his giving of evidence, on two grounds.
The first is that Dr Smith was not available to give evidence jointly with other doctors. Dr Smith participated in a conclave with those other doctors and prepared a joint report. It is said that to allow him to now give evidence would run counter to the injunction in s 56 of the Civil Procedure Act 2005, because it would increase the time and the cost of this litigation.
The second reason or basis for the exclusion of his evidence is that his report is said to be of a partisan nature and an "advice on evidence" to the club.
In respect of the first matter, I have not been provided with any evidence of the reason for Dr Smith's absence from the joint giving of evidence of the other doctors. It seems to me that it would have been preferable for Dr Smith to be available. He may ultimately be tested in cross-examination and be the subject of some criticism in submissions by counsel for his unavailability. But without any exploration of the reasons for his unavailability, and the fact that Dr Smith has now attended during the course of this trial and is available to give evidence, I do not think I should exclude his evidence on the basis of his previously unexplained absence. I think the justice of hearing from Dr Smith outweighs any possible small increase in the time and costs of the litigation.
As to the question of whether the report is of a partisan nature and an advice on evidence to the club, my attention has been drawn to three passages in Dr Smith's report of 10 February 2010 where he refers to matters being "worthy of exploration" or the need for "further clarification" or that a further inquiry would provide "considerable assistance". I do not see these matters as being in the nature of an advice on evidence.
I do not propose to make any final determination about Dr Smith's report at this stage, given that the matters raised might be ventilated in the cross-examination of Dr Smith. If ultimately the report appears properly to bear the description of an advice on evidence then the weight of the report will be diminished. At present I am not persuaded that I should exclude the report altogether.
For those reasons, I propose to allow Dr Smith to give evidence. If the report is tendered and no other objection is taken to it, I propose to allow it.
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Decision last updated: 07 March 2014
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