Tabet bht Sheiban v Mansour - [2006] NSWSC 770

CITATION: Tabet bht Sheiban v Mansour & Ors [2006] NSWSC 770

HEARING DATE(S): 19-31 July, 1-2 August 2006

JUDGMENT DATE :
3 August 2006

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: The joint report of the experts is not admitted into evidence.

LEGISLATION CITED: Supreme Court Rules
Uniform Civil Procedure Rules
Evidence Act

CASES CITED: Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705
Tabet by her tutor Sheiban v Mansour [2006] NSWSC 754

PARTIES: Reema Tabet by her tutor Ghassan Sheiban (Plaintiff)
Dr Albert Mansour (1st Defendant)
Dr Maurice Gett (2nd Defendant)

FILE NUMBER(S): SC 20239/01

COUNSEL: G.B. Hall QC/Dr R. Pincus (Plaintiff)
M.T. McCulloch SC/T. Berberian (Defendants)

SOLICITORS: Miller Goddard Solicitors (Plaintiff)
Blake Dawson Waldron (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Thursday 3 August 2006

20239/01 REEMA CATHERINE TABET by her tutor GHASSAN SHEIBAN v DR ALBERT MANSOUR & ANOR
JUDGMENT
(On admissibility of joint experts' report)

1 HIS HONOUR: On 27 July 2006 I delivered an earlier judgment in this matter, stating my reasons for granting leave to the plaintiff to adduce expert evidence inconsistent with the content of the joint experts' report concerning the lumbar puncture on 13 January 1991: [2006] NSWSC 754.

2 Yesterday Mr McCulloch pursued the tender of the report and, having heard the competing submissions of counsel and having considered the matter over the luncheon adjournment, I stated my conclusion that the report ought not to be admitted into evidence. I now publish my reasons for that conclusion.

3 Mr McCulloch submitted that the report should be admitted on two bases:

(i) that it was a report prepared for the purposes of r 31.25 of the UCPR and that it was admissible under that rule;

4 I will not repeat what I wrote in the earlier judgment above referred to in paras [6], [7] and [8], save to restate the conclusion expressed in para [8] of the earlier judgment that there is no evidence here that the parties, when appointing the joint conference or at any subsequent time, agreed to be bound to the tender of the report which was provided by the experts. In the absence of such agreement, it does not seem to me that the report can be introduced into evidence either under r 31.25(4) or (5).

5 I observe that I am, in this judgment, referring to the Uniform Civil Procedure Rules rather than the counterparts in the former Supreme Court Rules. When submissions were made yesterday, it was to r 31 that counsel addressed their submissions. The effect of r 31.25 of the UCPR is identical with the effect of Pt 36 r 13CA of the earlier rules.

6 As I observed in the earlier judgment, whilst in the absence of an agreement between the parties r 31.25 does not make provision for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 770
Decision Date: 3 August 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Common Law Division, the case of Tabet bht Sheiban v Mansour and Others [2006] NSWSC 770 was heard by Studdert J over the course of several days in July and August 2006. The dispute involved Reema Tabet, represented by her tutor Ghassan Sheiban, who was suing Dr Albert Mansour and Dr Maurice Gett for professional negligence. The case centred on the admissibility of a joint report from the experts appointed by the parties, which was a point of contention between the plaintiff and the defendants. The central legal issue before the court was whether the joint experts' report should be admitted into evidence. Counsel for the defendants, Mr McCulloch, argued that the report should be admitted under rules 31.25 and 31.18A of the Uniform Civil Procedure Rules. The plaintiff's counsel countered that the report should not be admitted in the absence of an agreement between the parties to be bound by the report.

The court found that the joint experts' report could not be admitted into evidence. Studdert J held that there was no evidence that the parties had agreed to be bound by the report when appointing the joint experts or at any subsequent time. Without such an agreement, the report could not be introduced under rule 31.25. Additionally, the report did not meet the definition of an "expert's report" under rule 31.18, as it did not set out the facts on which the opinion was formed. The court also noted that while the report could play a role in cross-examining participating experts, it did not satisfy the requirements for admissibility under rule 31.18A. Therefore, the court concluded that the joint experts' report should not be admitted into evidence.

Orders