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;

(ii) the further submission was advanced that the report should be admitted under r 31.18A.

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 the tender of a joint experts' report, it by no means deprives the report of any utility in the proceedings and at trial.

7 Practice Note SC Gen 11 identifies the objectives of joint conferences by experts as including:

§ "The identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;

§ The consequential shortening of the trial and enhanced prospects of settlement;

§ Apprising the court of the issues for determination;

§ Binding experts to their positions on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross examination of a participating expert called at the trial who seeks to depart from what was agreed); and

§ Avoiding or reducing the need for experts to attend court to give evidence."

(Emphasis added)

8 On my reading of r 31.25, in the absence of any relevant agreement between the plaintiff and the defendants, save for consideration of r 31.25(6), there is no basis for the introduction of the report here sought to be tendered under r 31.25.

9 A consideration of whether the report may be admitted by reason of r 31.25(6) takes one back to the provisions of rr 31.18 and 31.18A and to the second basis upon which Mr McCulloch argued that the report should be admitted into evidence.

10 Rule 31.18 provides for the service of expert reports on the opposing party as a threshold requirement to the admissibility of such reports. "Expert's report" is defined in r 31.17 as meaning

"a written statement by an expert…that sets out the expert's opinion, and the facts on which the opinion is formed, and contains the substance of the expert's evidence that the party serving the statement intends to adduce in chief at the trial."

11 It is to be observed that the joint experts' report here sought to be tendered does not satisfy that definition. In particular, it does not set out the facts on which the opinion is formed.

12 Under r 31.18A where an expert's report as defined is served in accordance with r 13.18, the report is admissible as evidence of the expert's opinion subject to the requirement that he is available for cross examination. However, a report will only be admissible to the extent that the expert has the specialised knowledge required by s 79 of the Evidence Act and provided the opinion contained in the report is "wholly or substantially based on that knowledge". A further requirement bearing upon admissibility of an expert report as defined is that it must sufficiently identify the basis upon which the opinion has been expressed: Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705.

13 The signatories to the joint report were obviously regarded as qualified to address the questions which were posed for their consideration, otherwise they would not have been called upon to attend the conference. However, the very way in which the questions were framed for the consideration of the experts, and deliberately framed in accordance with para 9 of Practice Note SC Gen 11 (or, in this case, its predecessor), would provide for "yes" or "no" answers. The scheme behind joint expert reports does not call for or provide for disclosure of the reasoning processes of the signatories to the report. It may be that each signatory arrived at the answers given by a different path of reasoning, depending upon his particular expertise.

14 However, if the report is admitted into evidence, the cross examiner would not be aware in advance as to the particular use that the witness made of his expertise in answering the questions answered nor of the path of reasoning which led him to those answers.

15 Notwithstanding Mr McCulloch's submissions, it seems to me, looking at the report here, that it ought not to be admitted on either of the grounds advanced by Mr McCulloch.

16 It does not follow, of course, as earlier indicated, that the report has no possible role to play at this trial. In particular, the report may be used in cross examination of a participating expert who seeks to depart from the answers to which he subscribed in the joint report.

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