X v Sydney Children's Hospitals Specialty Network (No 5)
[2011] NSWSC 1351
•10 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351 Hearing dates: 7 November 2011 Decision date: 10 November 2011 Jurisdiction: Common Law Before: Adamson J Decision: 1) Refuse the Plaintiff's application to exclude the Second Joint Report on breach of duty from evidence.
2) Admit the Second Joint Report on breach of duty into evidence.
Catchwords: PRACTICE AND PROCEDURE - Expert evidence - Joint reports of experts - Whether reasons are required for agreement between experts - Procedural fairness Legislation Cited: - Civil Procedure Act 2005 (NSW) - s 9, Schedule 3, s 56
- Evidence Act 1995 (NSW) - s 11(1), s 79, s 135, s 190, s 192
- Uniform Civil Procedure Rules 2005 (NSW) - r 31.26, r 31.27Cases Cited: - Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002
- Dasreef Pty Ltd v Hawcher [2011] HCA 21
- Gillett v Robinson [2011] NSWSC 1143
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705Category: Interlocutory applications Parties: - "X" (Plaintiff)
- Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant)
- Dr Brian Kearney (Second Defendant)Representation: Counsel:
- K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff)
- M.J. Windsor SC, S.A. Woods (First Defendant)
- J.K. Kirk SC, Ms V.A. Thomas (Second Defendant)
Solicitors:
Paul A. Curtis & Co (Plaintiff)
GILD Insurance Litigation (First Defendant)
Blake Dawson (Second Defendant)
File Number(s): 2002/069388 Publication restriction: Suppression order in respect of Plaintiff
Judgment
These proceedings concern a claim for damages in which the Plaintiff, through her tutor, alleges that the First Defendant, which runs a public hospital, and the Second Defendant, a paediatrician, breached the duties of care that they owed to her. The Plaintiff suffered from a rare condition known as hyperinsulinism. If untreated, the condition can lead to hypoglycaemia, which can manifest itself in seizures. The Plaintiff's mother first brought her to the First Defendant's hospital on 9 May 1996 and she came under the care of the Second Defendant on 10 May 1996. The Plaintiff's condition was not diagnosed until 21 June 1996. There is no allegation of negligence post-diagnosis. Accordingly this case turns, in part, on the acts and omissions of the Defendants in this six-week period.
Expert evidence on breach of duty has been served from experts of the following specialities: paediatricians, paediatric neurologists and a paediatric endocrinologist.
On 7 November 2011, the Plaintiff made an application that the joint report prepared by the experts on breach of duty following a joint conference on 8 September 2011 ( the Second Joint Report ) ought not be admitted into evidence. At the conclusion of the oral application, I rejected the Plaintiff's application and admitted the Second Joint Report into evidence in the proceedings. So as not to delay the further conduct of the proceedings I indicated that I would provide reasons in due course for my decision. These reasons follow.
The background to the preparation of the Second Joint Report is somewhat lengthy and I propose to set it out in summary form.
On 17 November 2010, the Court directed a joint conference of experts to take place by 4 February 2011 with a joint report to be prepared by 25 February 2011. This conference did not ensue in accordance with the directions because of disputes between the parties about the formulation of questions and the assumptions to be given to experts. It was not until 30 March 2011 that there was agreement as to the questions, the various assumptions and the material to be provided to the experts.
A document dated 30 March 2011 entitled "QUESTIONS CONCERNING BREACH OF DUTY" was prepared by agreement and contained directions for the experts. It included the following instruction: "Please give reasons for your answers, including explanation of any matters which are not agreed between you."
On 31 March 2011 there was a joint conference of experts on the question of breach of duty. Mr Curtis, the Plaintiff's solicitor, in an affidavit sworn on 20 April 2011, paragraphs 1 to 11 of which were tendered by the Second Defendant in opposition to the Plaintiff's present application, deposed that as at 20 April 2011 the Plaintiff had served nine reports from six experts on liability, and the two Defendants had served twenty-one reports from nine experts on liability.
In accordance with orders made by Johnson J, a joint expert conference on breach of duty was convened on 31 March 2011 at Melbourne Airport ( the March Joint Conference ). Ten specialist medical practitioners attended: seven in person and three by telephone. The Plaintiff's solicitor deposed, and I accept, that the process of preparation for and the conduct of the joint conference resulted in substantial expenditure on experts and substantial professional fees and Counsel's fees, including both Senior and Junior Counsel. The parties agreed on the eighteen questions (most of which have multiple parts) to be put to the experts.
Following the March Joint Conference the experts provided their report to this Court on 18 April 2011 ( the First Joint Report ). The First Joint Report substantially comprised one-word answers to the 18 questions which had been posed. Notwithstanding the instruction referred to above that the experts give reasons for the answers, no such reasons were given for the agreed answers and other answers were accompanied by limited commentary.
On that day, 18 April 2011, the Plaintiff filed a Notice of Motion for orders in respect of the joint conference on breach of duty, including an order that the First Joint Report was not a joint report that complied with the requirements of the UCPR or with the directions made for the March Joint Conference.
On 21 April 2011, Rothman J heard the Plaintiff's Notice of Motion and refused to make the order sought by the Plaintiff referred to above. However, Rothman J ordered that the joint conference on breach be reconvened so that the experts could provide further explanation of their answers in accordance with a schedule to be agreed between the parties. The parties ultimately agreed on the form of the schedule on 29 April 2011. Issues relating to the March Joint Conference and the First Joint Report contributed to the vacation of the trial date which was ordered by Johnson J on the Plaintiff's application on 3 May 2011.
A further agreed document was prepared which was entitled "RECONVENED EXPERTS CONFERENCE ON BREACH OF DUTY". This document, unlike its predecessor, did not expressly require reasons for agreed matters to be given. Instead, the document contained the following passage:
"In particular, the experts are asked to provide more information as to the assumptions on which they relied in providing the answers set out in that document, to identify any of their number who did not consider themselves in a position to answer the question and to state the reasons for any disagreement."
Attached to this document was a Schedule, which was also the subject of agreement between the parties, with several columns which provided for reasons of any expert who disagreed with the answer to the question and for different answers to be given, depending on which assumptions were made.
There were subsequent consequential orders requiring the parties to agree on a facilitator for the preparation of a further joint report following the reconvened conference. The reconvened joint conference on breach of duty ultimately took place on 18 September 2011 ( the September Joint Conference ) and a report of the reconvened conference, which was facilitated by Ms Walker of Counsel, was received by the parties on 7 October 2011 ( the Second Joint Report ), not long before this trial commenced on 24 October 2011.
The Plaintiff put several arguments in support of her contention that the Second Joint Report ought not be admitted into evidence. These arguments, in summary form, are as follows:
a UCPR 31.26(3) and (4) are invalid and accordingly the tender of the Second Joint Report is not authorised by the Rules ( the Invalidity Argument ).
b Although UCPR 31.26(3) provides that a joint report may be tendered at the trial as evidence of any matters agreed, it does not follow that it is admissible in evidence ( the Tender Argument ).
c The Second Joint Report is inadmissible because it fails to comply with s 79 of the Evidence Act 1995 (NSW), in that the experts did not give reasons for their answers where the questions were answered unanimously and does not comply with the principles articulated by Heydon J in Dasreef Pty Ltd v Hawcher [2011] HCA 21 ( Dasreef ) and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ( Makita ), reflected in UCPR 31.27 and the Expert Witness Code of Conduct ( the Makita Argument ).
d There are unexplained inconsistent answers for various questions throughout the Second Joint Report ( the Inconsistency Argument ).
e Even if the UCPR do not require reasons to be given where matters are agreed, the Court directed that the experts provide reasons and accordingly the Second Joint Report ought be rejected since it failed to comply with the Court's directions ( the Directions Argument ).
f To the extent that it is admissible, the Second Joint Report ought be rejected pursuant to s 135 of the Evidence Act because its probative value is substantially outweighed by the danger that it might be prejudicial to the Plaintiff, misleading or confusing and a cause or result in undue waste of time ( the Unfairness Argument ).
On the day following the day on which I had admitted the Second Joint Report into evidence, Mr Connor, Senior Counsel for the Plaintiff, raised a further argument as to why the Second Joint Report ought be excluded, namely that it did not comply with the requirements of UCPR 31.28 since it contained matters which were outside the content of reports which had been served in accordance with UCPR 31.28 ( the Report Argument ) and asked that I deal with that argument in my reasons for admitting the Second Joint Report.
I propose to deal with each of these arguments in turn.
The Invalidity Argument
UCPR 31.26 provides for conferences and joint reports of expert witnesses. Those Rules state in part:
"(1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c).
(2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.
(3) The joint report may be tendered at the trial as evidence of any matters agreed.
(4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.
(5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report."
Mr Connor SC accepts that the rule-making power conferred by s 9 and Schedule 3 of the Civil Procedure Act 2005 (NSW), particularly [7] ("The admission and exclusion of evidence and the manner in which evidence is to be tendered") and [25] ("Matters relating to expert evidence") prima facie authorises UCPR 31.26.
Mr Connor submits that on the face of it the regime established by these Rules is one in which:
a) the experts are not required to provide reasons for matters agreed;
b) what took place during the conference is not justiciable; and
c) the joint report is admissible as evidence of matters agreed.
Mr Connor directed my attention to historical versions of these Rules, but I do not think that those historical versions shed any particular light on the argument and therefore do not propose to set out the historical versions of these Rules. Suffice it to say that significant changes have been made to the form of the Rules since their initial making in 2005.
Mr Connor contends that the effect of the matters in (a), (b) and (c) referred to above is that UCPR 31.26(3) and (4) are invalid as they purport to authorise the infringement of three fundamental principles: the statement of reasoning rule, the requirement for natural justice and the obligation of the Court to decide matters in dispute in civil proceedings.
Alleged inconsistency with the statement of reasoning rule
Mr Connor placed reliance on Heydon J's reasons in Dasreef and in particular those passages in which the so-called "statement of reasoning rule", which requires an expert to give reasons for his or her opinion, is described. Heydon J decided that s 79 of the Evidence Act left the statement of reasoning rule intact and that, accordingly, an expert's report which did not reveal the expert's reasoning would not be admissible under s 79, even though the opinion fell within the specialised knowledge of the expert.
Mr Connor argued that since the common law statement of reasoning rule was not abrogated by s 79 of the Evidence Act , it was not open to the UCPR to purport to authorise the giving of opinion evidence by way of conclusion, or unadorned opinion, absent the giving of reasons. Since UCPR 31.26 contemplates in terms that experts will not be required to give reasons for their answers where there is agreement, the rule cannot stand.
Mr Kirk (whose submissions were adopted by the First Defendant) had several answers to this proposition. First, he said that the rule must be read in the context of the Civil Procedure Act , the Evidence Act and the UCPR. He said that UCPR 31.26(3) does not exclude s 135 if its admission would be unfairly prejudicial. He accepted what Black J said in Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002 ( Barescape ), namely that the rule is permissive and not mandatory. Black J said, at [3]:
"In particular, I do not consider that 31.26 requires the admission of a joint report which does not comply, or where the reports of the separate experts which it incorporates do not comply with the requirements of s 79 of the Evidence Act 1995 (NSW), or where that report or reports is or are liable to exclusion under s 135 of the Evidence Act."
Mr Kirk also contended that the "statement of reasoning rule" was excluded by UCPR 31.24(1)(c) and 31.26(3) because these rules plainly contemplate that the experts are not required to give reasons where there is agreement. The fact that reasons for agreement, as opposed to disagreement, are not required is also evident from [25] of the Practice Note SC Gen 11.
Mr Kirk then turned to the relationship between the UCPR and the Evidence Act and pointed to three provisions in the Evidence Act relevant to such relationship.
First, he said that s 11(1) of the Evidence Act provided that the power of a court to control the conduct of a proceeding is not affected by the Act and that such powers included the power to make rules and practice notes to govern the conduct of proceedings, including the admissibility of joint reports prepared after joint conferences.
Secondly, Mr Kirk referred to s 190(3) of the Evidence Act which provides that a court in a civil proceeding may order that any one or more of the provisions in s 190(1) (which include s 79) do not apply in relation to evidence if, relevantly, the application of those provisions would cause or involve unnecessary expense or delay. Although this provision does not apply strictly to Mr Connor's argument, Mr Kirk submitted that it was consistent with a reading of s 11 that permitted a Court in a civil proceeding to modify the application of the rules of evidence in certain circumstances. Although s 190(3) contemplates that it might be done by order in a particular case, s 11 contemplates that rules of general operation might be made that have effect in civil cases generally.
Thirdly, Mr Kirk submitted that s 192 of the Evidence Act , which confers a power on a Court to give leave on terms, and referred to s 192(2) which lists the matters that are to be taken into account in a determination of whether such leave ought be given. He relied on: the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing (s 192(2)(a)); the importance of the evidence (s 192(2)(c)); and the nature of the proceeding.
Mr Kirk also referred to s 56 of the Civil Procedure Act which provides that the Court must seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute in the proceedings when it interprets any provision of the Civil Procedure Act or the Rules.
Mr Kirk also submitted that there were several good reasons why the rules did not provide for reasons to be given where experts agree on the answer to a question posed in a joint conference.
First, the reports are prepared under the time pressure of the court system and also of the experts themselves, who can be expected to have other professional commitments. To require reasons to be given for agreement would not only be expensive and time-consuming but it might have the tendency to inhibit the process, and perhaps to deter participation by experts.
Secondly, he said that the objectives of the joint conference ought be taken into account in construing the UCPR. SC Gen 11, [5] provides an inclusive list of the objectives of directions for a joint conference. Mr Kirk placed particular emphasis on the penultimate objective which reads:
" ... binding experts to their position 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)."
Substantially for the reasons given in the course of Mr Kirk's submissions set out above, I consider that UCPR 31.26(3) and (4) are not invalid in so far as they provide that experts need not provide reasons for agreement. In any event, to the extent to which s 79 applies, I do not consider that it excludes a report prepared in accordance with the UCPR, notwithstanding that no reasons for agreement are required. The joint report is authorised by the UCPR and there is no relevant inconsistency by reference to which UCPR 31.26(3) and (4) would be rendered invalid. The common law rule can be abrogated by statute. Even though Heydon J found that it had not been abrogated by s 79 of the Evidence Act , I consider that it has been, to the limited extent described above, in respect of joint expert reports prepared in accordance with the UCPR.
The requirement for natural justice
Mr Connor submitted that the effect of a joint report being admissible in respect of matters agreed was to deny natural justice, and that accordingly the rules purporting to authorise its admission were invalid. He said that if it be accepted that an expert could advance matters in a joint conference which were outside the matters contained in the expert's report, then that involved a denial of natural justice because the party potentially disadvantaged by a discussion of new matters in the joint conference would not have the opportunity to consider whether to counter that new material before the joint conference.
Mr Connor pointed to the fact that the Second Defendant had qualified a paediatric endocrinologist, Dr Cameron, to attend the joint conferences and said that the Plaintiff had not qualified a paediatric endocrinologist in reliance on the reports of Dr Cameron but that it appeared that Dr Cameron had made a contribution to the joint conferences which went beyond what was in his written report and that the Plaintiff was, accordingly, denied natural justice.
Mr Kirk contended that since the questions which the experts were required to answer were agreed to by the parties, it could not be said that the parameters of the discussion at the joint conference had not been defined and confined by reference to the issues in the case. Therefore even if an expert went outside the four corners of what had been articulated in his or her report, such expert would be constrained by the agreed issues in the case.
Mr Windsor, Senior Counsel for the First Defendant, said that the Plaintiff had qualified a paediatric endocrinologist, Dr Hindmarsh, but had not relied on his reports and that, accordingly, the absence of a paediatric endocrinologist qualified by the Plaintiff at the joint conferences could not be attributed to any denial of natural justice but rather to a forensic choice.
The principles of natural justice can be abrogated by legislation or by delegated legislation. The extent to which they are abrogated is a matter of statutory interpretation. However, I do not need to consider the operation of these principles since I do not consider that UCPR 31.24 or 31.26 involve any material abrogation of the requirements of natural justice.
I consider it to follow from the provisions set out above that experts are not to be constrained by the contents of their reports when participating in a discussion in a joint conference. The requirements of natural justice would generally be met by the presence of an expert retained by the opposing party at the joint conference and the requirement for reasons for matters not agreed to be given. In circumstances where this was not sufficient to accord natural justice, or if it were established to be unfair for any other reason, the discretion under s 135 of the Evidence Act would apply and the report could be rejected by the Court on the basis of unfair prejudice.
Furthermore, admission of the Second Joint Report into evidence is not the end of the matter. The Court, as has occurred in the instant case, has made directions for concurrent evidence, which takes place in the course of the hearing. The reasons for the experts' agreement on particular matters can be explored in the course of the concurrent evidence, by the court, and by the parties, or if there is no order for concurrent evidence, by cross-examination of the experts. Although it is conceivable that a joint report will be the end of the matter, it will have that effect only if any party does not seek to cross-examine any author of the joint report (in which event one could reasonably conclude that the matter agreed between the experts was no longer in issue between the parties).
That a party has the right to cross-examine a participant in a joint report appears to be uncontroversial. For example, Harrison J said, at [45] in Gillett v Robinson [2011] NSWSC 1143:
"Mr Coren [who appeared for the plaintiff] did not seek to challenge the opinions or answers of the experts during his cross-examination of them, as he could have done, if he was concerned to expose some problems that arose from either the form or the content of the joint experts' report."
Abrogation of judicial function
Mr Connor submitted that UCPR 31.26 is invalid as it amounts to an abrogation of a judicial function in that it substitutes the agreement of experts (who are not obliged to give reasons for their answers) for the determination of the Court (which is obliged to give reasons for decision).
Mr Kirk submitted that the effect of the rules was not that the Court is deprived of control of the questions for determination in so far as they correspond to the questions outlined in the Second Joint Report, nor that admission of the Report precludes cross examination on the issues. Mr Kirk accepted that UCPR 31.26 does not preclude the operation of s 135 which confers a power on the Court to reject evidence which would be unfairly prejudicial.
The Plaintiff's submission can be shortly addressed. The Court is not bound by the agreement of experts in a joint report. Where matters are in issue between the parties (even if not between the experts) the Court is required to determine the matter and to give reasons for its decision. The processes referred to above in connection with the Natural Justice Argument have the potential to inform the Court of the basis of the experts' reasoning as well as to permit the parties to challenge both the fact of, and basis for, the agreement.
In conclusion I do not consider any of the grounds advanced by Mr Connor to warrant my finding UCPR 31.26(3) or (4) to be invalid.
The Tender Argument
The Plaintiff submitted that UCPR 31.26(3) is expressed in terms of tender and not admissibility, and that the fact that the Rule provides that a joint report may be tendered at the trial as evidence of any matters agreed does not make it admissible.
The Defendants contended that the Plaintiff's proposition that there is a difference between tendering and admitting a document is untenable since UCPR 31.26(3) and (4) are obviously dealing with admissibility. I accept the Defendants' contention. There would be no utility in a rule that provided that a report may be tendered, if the rule did not provide for the admissibility of the report. The question whether a joint report must comply with s 79 to be admissible is dealt with below. The Defendants do not contend that s 135 is excluded in respect of joint reports.
I consider that UCPR 31.26(3) authorises the admission into evidence of a joint report prepared in accordance with the rules, subject to rules of exclusion such as s 135 of the Evidence Act . I consider that s 79 may apply in some respects to joint reports in the sense that an expert ought not be permitted to participate in the answer to a question that is outside his or her area of specialised knowledge. However, for the reasons set out above in relation to the statement of reasons argument, I do not consider that s 79 operates in the same way in respect of joint reports under UCPR 31.26(3) as it does in relation to the reports or opinions of individual experts.
Accordingly, I reject the Tender Argument.
The Makita Argument
Mr Connor, for the Plaintiff, contended that, even if UCPR 31.26(3) is valid, the Second Joint Report is inadmissible since it does not comply with s 79 of the Evidence Act since s 79 does not exclude the common law requirement for reasons and no reasons are expressed.
In response, Mr Kirk submitted that, for the reasons given above in connection with the Invalidity Argument, the Second Joint Report is admissible notwithstanding that the experts have not provided reasons for the answers to matters where those answers are agreed.
In the alternative, Mr Kirk submitted that when the expert reports and the Second Joint Report were read together, the requirement for reasons was satisfied. In support of this submission, he referred to the joint judgment in Dasreef , at [37], and in particular the following passage:
" ... it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita , that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness 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'. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily."
[Emphasis added.]
Mr Kirk emphasised that the First and Second Joint Reports were produced in the context of exchange of medical reports and following agreement of the questions to be posed of the experts in the joint conferences. He submitted that the experts, in the joint conferences, discussed the questions with each other to seek to find agreement. That the agreement may be recorded in a simple one-word answer does not make it devoid of reasons because the answer is to be seen in the context of the prior reports. Mr Kirk submitted that one can infer that the agreement reflects the reasons of the expert or experts whose original reports contended for the answer which was ultimately agreed to be the correct one.
I consider there to be significant force in the alternative argument. However it is not necessary to determine it for the purposes of this application because I consider for the reasons I gave in disposing of the Invalidity Argument that the common law requirement for reasons to be stated which Heydon J in Dasreef found not to have been abrogated by s 79 does not apply to joint reports prepared in accordance with the UCPR.
The Inconsistency Argument
The Plaintiff contends that because the Second Joint Report is not unambiguous, it ought be rejected on that ground. I understand this to be a separate ground, in addition to the Unfairness Argument which is dealt with below. The Plaintiff, in her written submissions, sets out various instances in which it is said that the Second Joint Report requires further elucidation to reconcile apparently irreconcilable answers.
For example, the Plaintiff directs my attention to the experts who, with one exception, opined that it was a departure from reasonable standards for the First Defendant not to test the Plaintiff's blood at the time of first presentation on 9 May 1996. Mr Connor then points to the experts' answer to a question as to whether the First Defendant departed from reasonable standards in testing the Plaintiff's blood on 10 May 1996, obtaining a low reading and then not doing any further investigation. In his written submissions in support of the Plaintiff's present application, Mr Connor asks rhetorically:
"If it were a breach of duty for Dr McCaskill not to test the Plaintiff's blood glucose, how was it not a breach of duty for the Hospital to do the test, obtain an abnormal reading but do nothing in response? Why else was Dr McCaskill supposed to test the Plaintiff's blood glucose but to see whether it be low and respond accordingly?"
I accept that there are difficulties in reconciling all of the answers given to all of the questions. If the Second Joint Report were not to be the subject of concurrent evidence, there could be some real unfairness in its admission. However, I am satisfied that it records agreement between experts who have conferred on two separate occasions with the assistance in the latter case of a facilitator. I am not disposed to reject the Second Joint Report merely because I am not presently able entirely to reconcile matters such as those adverted to by Mr Connor in his written and oral submissions, of which a single example has been set out above.
The Directions Argument
In the recitation of the background to the preparation of the Second Joint Report set out at the beginning of these reasons I set out extracts from the instructions given to the experts before the March and September conferences respectively. The documents which went to the experts were in both cases the subject of agreement. The document which was provided to the experts in advance of the September conference did not require reasons for agreed matters to be given. It can be taken to have superseded the document provided in advance of the March conference which did require reasons. Accordingly, I do not consider that it can properly be said that the experts did not comply with the directions of this Court, or the agreed instructions of the parties, in preparing the Second Joint Report.
For these reasons, I reject the Directions Argument.
The Unfairness Argument
Most, if not all, of the arguments put by the Plaintiff in support of the Unfairness Argument have been dealt with above. In particular the argument that the joint conference itself amounts to a denial of natural justice, the apparent inconsistency between answers given, and the lack of reasons for agreed matters are relied upon by the Plaintiff as a reason why I ought exercise my discretion under s 135 to exclude the Second Joint Report.
The Plaintiff relies on each of the three bases in s 135 as a basis on which I ought exclude the Second Joint Report. Mr Connor says that the probative value of the Second Joint Report is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Plaintiff, be misleading or confusing and cause or result in a waste of time.
In support of the submission that I should refuse to admit the Second Joint Report by reason of s 135(a), the Plaintiff alleges that there was a denial of natural justice which arose because the experts at the joint conferences were not confined to the contents of their served reports and because there were no reasons given for the answers in respect of matters agreed.
Mr Windsor, for the Second Defendant, submitted that far from being unfair to admit the Second Joint Report, it would be unfair to reject it, in circumstances where the Court proposed to admit the individual reports of the experts who had participated in the joint conferences, since on several occasions consensus had been reached in the joint conference which would not be apparent from reading the individual reports which preceded the joint conferences. There is considerable force in this submission. I accept that it would be potentially misleading to admit evidence which reflected an expert's historical view, which had changed in the light of discussion which had been not only authorised and agreed to by the parties, but also mandated by the Court.
For the reasons given above, I do not consider there to be any real danger that the Second Joint Report might be unfairly prejudicial to the Plaintiff, although on its face it is substantially adverse to the Plaintiff's case. I do not consider that the matters raised by the Plaintiff give rise to any unfairness, particularly in circumstances where the Plaintiff's legal advisers consented to the process, the form of questions and the form of instructions to the experts which led to the Second Joint Report.
In support of the submission that I should refuse to admit the Second Joint Report by reason of s 135(b), the Plaintiff relies on the same matters raised as in the Inconsistency Argument. Although I accept that at least the example of apparently irreconcilable answers referred to above could potentially be misleading and confusing, I do not consider the danger that it might be so to outweigh the probative value of the Second Joint Report. Two days of court time have been allocated to question of the experts arising from the Second Joint Report. Much of the report is unambiguous. The balancing exercise contemplated by s 135 favours its admission.
In support of the submission that I should refuse to admit the Second Joint Report by reason of s 135(c), the Plaintiff alleges that it would be preferable for the experts' reports to be tendered and for there to be concurrent evidence strictly divided by specialty: in other words, the paediatricians could give evidence together, and then the paediatric neurologists could give concurrent evidence. Far from saving time, what the Plaintiff proposed would not only consume substantially greater court time but it would also set at nought the time consuming and expensive process in which the parties have engaged to get to the point of the preparation and finalisation of the Second Joint Report.
For the foregoing reasons I decline to exclude the Second Joint Report on any of the three bases set out in s 135 of the Evidence Act .
The Report Argument
Mr Connor argued that the Second Joint Report ought be rejected because it does not comply with UCPR 31.28, which provides as follows:
"(3) Except by leave of the court, or by consent of the parties:
(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and
(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and
(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence."
Mr Kirk submitted that UCPR 31.28 (3)(c) is plainly directed to evidence in chief and not to a joint report prepared in accordance with UCPR 31.26. He submitted that it was designed to prevent counsel seeking to rectify perceived inadequacies or omissions in written reports that had been served by adducing further oral evidence at the hearing of the matter.
I accept Mr Kirk's submission. I do not consider UCPR 31.28 to have any application to a joint report prepared in accordance with UCPR 31.26, since the rules are obviously directed to different matters. The former is directed to individual reports of experts, or hospital reports and does not address the admissibility of joint reports of experts following joint conferences. For these reasons I reject the Report Argument.
For the reasons referred to above, I admitted the Second Joint Report into evidence in these proceedings.
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Decision last updated: 16 November 2011
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