4. Recent Developments in Other Jurisdictions

Updates and background for this project (Digest)

• Introduction
• The “Woolf” reforms in England and Wales
• Australian jurisdictions

INTRODUCTION

4.1 This chapter discusses a number of other jurisdictions which have experienced significant reforms in relation to expert witnesses. These developments are instructive in indicating possible directions for reform in New South Wales.

THE “WOOLF” REFORMS IN ENGLAND AND WALES

4.2 In 1994, a comprehensive reform of the civil justice system in England and Wales was begun with the appointment of Lord Woolf, one of the most senior judges, to review existing rules and procedures. In his Interim and Final Reports, Lord Woolf found the existing system to be too expensive for litigants; slow in bringing cases to a conclusion; inequitable in favouring wealthy litigants over those who are under-resourced; and too complex and incomprehensible for many litigants. He also said that the system was too adversarial in approach, allowing the parties, rather than the courts, effectively to run cases.¹

4.3 Lord Woolf found expert evidence to be an area that presented major problems and needed reform. During the consultation process he carried out, a strong view emerged that the use of expert witnesses was a source of excessive expense, delay and increased complexity. Another major concern was the failure by experts to maintain independence from the party instructing them. Furthermore, Lord Woolf observed that a large litigation support industry had grown among professions such as accountants, architects and others, and new professions had developed such as accident reconstruction and care experts. He declared that this went against all principles of proportionality and access to justice, and also created an ethos of what is acceptable, which has a very damaging effect on the civil justice system.²

4.4 The linchpin of Lord Woolf’s recommendations on the civil justice system was judicial case management, under which judges are responsible for controlling litigation at all stages. Judges and court staff should ensure that proportionality is maintained between the importance and complexity of a dispute, the procedural means employed, and costs incurred, in its resolution. Within that framework, Lord Woolf made the following recommendations:

• Single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge or where it is not necessary for the court directly to sample a range of opinions;

• Parties and the court should always consider whether a single expert should be appointed and, if this is not appropriate, indicate why not;

• Where opposing experts are appointed, they should adopt a co-operative approach and produce, where possible, a joint investigation and report, indicating areas of disagreement that cannot be resolved;

• Expert evidence should not be admissible unless all written instructions (including letters subsequent upon the original instructions) and a note of any oral instructions are included as an annexure to the expert’s report;

• The court should have a wide power, which could be exercised before the start of proceedings, to order that an examination or tests be carried out in relation to any matter and a report submitted to the court;

• Experts’ meetings should normally be held in private. When the court directs a meeting, the parties should be able to apply for special arrangements, such as attendance by the parties’ legal advisers;

• Training courses should provide witnesses with an understanding of the legal system and their primary duty to the court.

4.6 The following is a survey of some significant aspects of the CPR, court guidelines and practice directions, and the relevant case law.

Greater control of the use of expert evidence

4.7 To call expert evidence, parties need permission from the court; and, if a party seeks such permission, it must identify the field of expertise of the expert and, if possible, specify the individual expert to be called.⁵ This is much more prescriptive than the former rules, which stated that expert evidence could be adduced either by agreement of the parties or with leave of the court.⁶

4.8 Where a court is called upon to determine whether a person should be permitted to give expert evidence, the judge (in addition to deciding whether or not the expert evidence is admissible) needs to be satisfied that such evidence will genuinely be of assistance in determining the matters that are in issue. The burden rests upon the party who seeks permission to adduce the expert evidence to show that it will assist the judge.⁷ If the parties instruct experts without waiting for the court to give permission, they are at risk of not recovering the costs of doing so if the court subsequently decides that expert evidence was not necessary.⁸

Experts’ overriding duty to the court

4.9 The rules provide that it is the duty of experts to help the court on matters within their expertise, and that this duty overrides any obligation to the person from whom they receive instructions or by whom they are paid. The Practice Direction to CPR Part 35 has a catalogue of experts’ duties, which is based on the duties specified in case law:⁹

1. Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2. An expert should assist the court by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate.

3. An expert should consider all material facts, including those that might detract from his or her opinion.

4. An expert should make it clear when a question or issue falls outside his or her expertise and when he or she is not able to reach a definite opinion, for example because he or she has insufficient information.

5. If, after producing a report, an expert changes his or her view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

Experts’ request for directions from the court

4.11 To assist expert witnesses in carrying out their functions, they may file a written request with the court for directions.¹¹ This gives them direct access to the court, either to clarify or amend instructions, or to seek directions: for instance, as to the extent to which they are bound to answer inquiries raised by a party to the proceedings or as to the meaning of a particular direction issued by the court.

Discussions among experts

4.12 The court may, at any stage, direct experts to discuss among themselves the case or their evidence. The object of the experts’ discussion is for them to identify and, if possible, agree on issues; and to identify those on which they disagree. The court may direct what the experts are to discuss; and that they prepare a statement for the court showing the issues on which they agree and those, with reasons, on which they disagree. Discussions between experts are privileged, and any agreement between them cannot bind the parties, save where they agree to be bound by such agreement.¹²

Written report

4.13 The general rule is that expert evidence, in so far as it is permitted, is to be given in a written report.¹³ The report must include:

• the expert’s qualifications; details of literature relied on; a summary of any range of opinions on the subject covered by the report and reasons for the expert’s opinion;

• a statement of “the substance of all material instructions” received by the expert, which should include a summary of all instructions and facts referred to therein which are relevant to the report or any opinion expressed in it;

• a statement that the expert understands his or her duty to the court and has complied with that duty; and

• a statement of truth, verified and in the prescribed form.¹⁴

Written questions

4.15 Four weeks from the receipt of the expert’s report, a party can put to that expert one set of questions solely for clarification of the report.¹⁶ Questions that go beyond mere clarification can be put with permission of the court or the agreement of the other party.¹⁷ Answers to the questions are treated as part of the report.¹⁸ If an expert does not respond to a written request, the court has discretion to disallow the expert’s evidence or to deny the party calling him or her the costs of the expert.¹⁹

Single joint expert

4.16 Arguably, the most significant and controversial recommendation of Lord Woolf’s Report concerning expert evidence is the use of single joint experts. The CPR implements this recommendation by providing that, where two or more parties wish to submit expert evidence on a particular issue, the court may direct that a single joint expert give evidence on that issue only.²⁰ There is no presumption in favour of the appointment of a single joint expert.²¹ It is left for the instructing parties to choose the expert, but, if they cannot do so, the court can select from a list prepared by the parties or can direct selection by some other means.²²

Court guidelines

4.17 The Code of Guidance on Expert Evidence encourages courts to appoint a single joint expert, particularly in cases where the sums involved are not large and the issues are not complex.²³ The Queen’s Bench Guide and Chancery Division Guide both indicate the circumstances in which a single joint expert will be required as a matter of practice:

In very many cases it is possible for the question of expert evidence to be dealt with by a single expert. Single experts are, for example, often appropriate to deal with questions of quantum in cases where primary issues are as to liability. Likewise, where expert evidence is required in order to acquaint the court with matters of expert fact, as opposed to opinion, a single expert will usually be appropriate. There remains, however, a body of cases where liability will turn upon expert opinion evidence and where it will be appropriate for the parties to instruct their own experts. For example, in cases where the issue for determination is as to whether a party acted in accordance with proper professional standards, it will often be of value to the court to hear the opinions of more than one expert as to the proper standard in order that the court becomes acquainted with a range of views existing upon the question and in order that the evidence can be tested in cross-examination.²⁴

Case law

4.19 The guidelines issued by various courts reflect the case law. For example, in Simms v Birmingham Health Authority,²⁶ the claimant claimed substantial damages from the defendant for negligent management of his delivery at birth, which resulted in severe disabilities, cerebral palsy in particular. The first instance court had ordered a single joint expert to prepare opinion evidence on liability and causation. The appeal court overturned the order because the case was “extremely complex” and the issues covered in the expert’s report were so important to the likely outcome of the case that the parties should be entitled to instruct their own experts.

4.20 In Oxley v Penwarden²⁷ it was held on appeal, in a medical negligence case, that an issue as to correct diagnosis was not appropriate to be dealt with by a single joint expert witness. It was said that there was no presumption in favour of the appointment of a single expert witness and that this was a case in which the parties should be free to call their own evidence. The observation was made that, if there was more than one school of thought on the issue, parties would be unlikely to agree, a judge would then be required to appoint an expert from one particular school of thought, and that would effectively decide an essential question in the case without the opportunity for challenge.

4.21 The same considerations relating to the complexity of the case, the nature of the issues and the amount of the claims are at play when a court appoints a single joint expert, but one of the parties (almost always a party which is unhappy with the view of the single joint expert) wants to introduce evidence from an additional expert witness. In Daniels v Walker,²⁸ involving a claimant struck by a car when he was about six or seven years old, there was no issue of liability and the single main issue concerned the nature of the care that the claimant would require for the rest of his life. The parties agreed that there should be a joint report prepared by an occupational therapist. When this was presented, the defendant’s insurers were concerned that the suggested cost far exceeded the care costs they had paid in similar cases. The trial judge refused the defendant’s leave to obtain and rely on the evidence of the defendant’s own care expert, but invited them to put written questions to the single joint expert. On appeal, the Court of Appeal decided that the trial judge had come to the wrong decision. Lord Woolf, who gave the leading judgment, made the following points:

• The fact that a party has agreed to the appointment of a single joint expert does not prevent that party from obtaining a report of another expert or, if appropriate, to rely on the evidence of another expert;

• In substantial cases (such as the particular case on appeal) the correct approach is to regard the instruction of an expert jointly appointed by the parties as the first step in obtaining expert evidence on a particular case. If, having obtained the report, a party, for reasons that are not fanciful, wishes to consider further information before making a decision as to whether or not to challenge the whole or part of the expert’s report, it should, subject to the discretion of the court, be permitted to obtain that evidence. However, the dissatisfied party should initially consider whether its concerns could be satisfied by asking questions on the joint report.

• While it is difficult to make generalisations, where there is a modest sum involved, a court may take a more rigorous approach. Because of the modest amount involved, it may be disproportionate to obtain a second report in any circumstances. At most, what should be allowed is to put questions to the expert who has already prepared a report.²⁹

• the nature of the issue or issues;

• the number of issues between the parties;

• the reason the new expert is wanted;

• the amount at stake, and if it is not purely money, the nature of the issues at stake and their importance;

• the effect of permitting one party to call further expert evidence on the conduct of the trial;

• any delay in making the application;

• any delay that the instructing and calling of the new expert will cause;

• any other special features of the case; and

• the overall justice to the parties in the context of the litigation.

4.24 Peet v Mid-Kent Healthcare Trust³¹ is another Court of Appeal decision in which Lord Woolf gave the leading judgment. This was a medical negligence claim where the claimant was a twin who had been born suffering from severe cerebral palsy. The defendant offered to pay 95% of the full liability quantum of damages, which was accepted. The trial judge ordered seven single joint experts: an education specialist, an employment consultant, a nursing specialist, an occupational therapist, a physiotherapist, an architect and a speech therapist. The main issue on appeal was whether the claimant’s parents could have a conference with the single joint experts without the presence of the defendant’s lawyers.³² More relevant for present purposes, however, are the statements of Lord Woolf regarding the appropriateness of the use of the single joint experts in such a case. He distinguished between medical and non-medical evidence, and said that in the great majority of cases where there is a need for non-medical evidence, such evidence should be given by a single joint expert; it is only by doing so that cost can be controlled.³³

4.25 In sum, the case law in England currently encourages the appointment of single joint experts in routine cases where the claims involved are modest. In more complex cases, where there is a major issue on liability or causation, courts in England do not ordinarily order a single joint expert. The same may apply to a quantum issue which is substantial and the main issue in the case. However, in personal injury cases, single joint experts are likely to be ordered, as in Peet v Mid-Kent Healthcare Trust, in relation to elements of the claim requiring non-medical expert evidence. If a single joint expert is instructed on a substantial issue and one or both parties wish to instruct an additional expert, the court may be constrained to permit them to do so.³⁴

4.26 The apparent aversion of English courts to using single experts in relation to liability and causation issues in substantial cases has been criticised. It is said that the more critical to the case and the more difficult the question for expert opinion, the stronger the argument for confining the evidence to that of a single expert witness. Otherwise, the judge, who is unqualified in the field relating to the expert evidence, has to choose between expert witnesses who have been selected because they support one side or the other. It is arguable that the appointment of a single expert witness in such cases would be likely to produce a better result.³⁵

AUSTRALIAN JURISDICTIONS

Introduction

4.27 Four Australian jurisdictions have recently reformed the rules relating to expert witnesses: Queensland, the Federal Court, the Family Court, and the Australian Capital Territory. As already indicated, Australian developments have been much influenced by the Woolf reforms in England.

4.28 The main features of these reforms may be summarised as follows.

4.29 The newer approaches feature the formulation of standards, either in rules of court or (as in NSW) as a code of conduct forming a schedule to the rules. To a considerable extent, such codes reflect statements by judges, some of them quite early, relating to expert witnesses. What is new is the attempt to formulate such standards in a coherent and authoritative form, and require expert witnesses to acknowledge and adhere to them.

4.30 Many of the other new measures must be understood against the background of a significant and evident move by courts to increase their control over the flow of cases and the conduct of litigation, a prominent feature of the Woolf reforms. Much effort by judicial officers and other court personnel now goes into “case management”. In general, the courts are actively involved in making a variety of pre-trial orders associated with the preparation of the case for trial. The primary goals of case management are to minimise delay and to reduce public and private costs. The new activism is also intended to assist early settlement of cases, by ensuring that mediation or other dispute settlement mechanisms are utilised, and that the real issues in dispute are identified as clearly and as early as possible. The courts’ close scrutiny of the preparation of the case for trial is designed to ensure, as far as possible, that evidence is available on time and cases are not adjourned because a party is taken by surprise at the last moment, and that the issues have been so clearly defined that time is not wasted with irrelevant or marginally relevant evidence. Although not everyone may be convinced that it has achieved its aims, active case management is now an integral part of the functioning of the civil courts. It forms part of the context in which the role of expert witnesses is to be considered.

4.31 One of the objects of case management is to ensure transparency and disclosure. This applies to expert evidence as well as to other types of evidence. Thus we find rules and practices designed to ensure that expert reports to be relied on in evidence are disclosed to the other party well before the hearing.

4.32 These objectives have led to requirements that the experts consult with each other prior to the hearing, and identify (sometimes in a report to the court) the matters on which they agree and those on which they disagree. The arrangements for such consultation – orders requiring that steps be taken within specified times – form part of the case management process.

4.33 In some jurisdictions, notably the NSW Land and Environment Court, there has been a trend to a practice, commonly called “hot-tubbing”, in which experts give evidence concurrently in the course of a general discussion presided over by the judge. The parties’ lawyers also participate in the discussion, rather than proceed to the traditional separate sequential examination and cross-examination of each expert witness.

4.34 Finally, the newer Australian rules move (to varying degrees) towards the use of a single expert witness rather than a number of experts called by each side. This important measure will be considered in detail in Chapter 7. For reasons that will be explained, the Commission will use the term “joint expert witness” for this concept.

Queensland

4.35 In 1999, Queensland adopted Uniform Civil Procedure Rules, which generally apply to the Supreme, District and Magistrates Courts. They contain provisions on expert witnesses with respect to:

• duty of experts;³⁶

• requirements on the contents and form of an expert’s report; ³⁷

• disclosure of the expert’s report; ³⁸ and

• the process of admitting the expert’s report as evidence, including cross-examination of the expert.³⁹

Single experts

4.37 An expert may be appointed in the Supreme Court in one of three ways:

1. If two or more parties agree that expert evidence may help in resolving a substantial issue in the proceeding, they may, in writing, jointly appoint an expert to prepare a report on the issue.

2. If parties cannot agree on the appointment of an expert, any party who considers that expert evidence may help in resolving a substantial issue in the proceeding, may apply to the court for the appointment of an expert to prepare a report on the issue.

3. The court may, on its own initiative at any stage of a proceeding, if it considers that expert evidence may help in resolving a substantial issue in the proceeding, appoint an expert to prepare a report on the issue.⁴²

4.39 In deciding whether or not to appoint an expert, the court may consider:

1. the complexity of the issue;

2. the impact of the appointment on the costs of the proceedings;

3. the likelihood of the appointment expediting or delaying the trial of the proceeding;

4. the interests of justice; and

5. any other relevant consideration.⁴⁴

4.41 Where the court has appointed an expert, it may, on its own initiative or on application by a party, appoint another expert to prepare a report in relation to the issue if the court is satisfied that:

1. there is expert opinion, different from the first expert’s opinion, that is or may be material to deciding the case;

2. the other expert knows of matters, not known by the first expert, that are or may be material to deciding the issue; or

3. there are other special circumstances.⁴⁷

Experts appointed before proceedings have started

4.43 If there is a dispute that will probably result in a proceeding in the Supreme Court, and obtaining expert evidence immediately may help in resolving a substantial issue in the dispute, an expert witness, intended to be the only witness to give evidence on an issue in the event of litigation, may be appointed by agreement of the disputants or by the Supreme Court on application of the parties.⁴⁹

4.44 Justice Margaret Wilson of the Queensland Supreme Court gave an example of when this might happen:

Suppose a building under construction has collapsed causing all manner of economic and personal damage; the cause of the collapse needs to be established; there will no doubt be litigation between the owner, the designer and the builder, but that can be expected to take months if not years to reach a conclusion; in the meantime the site needs to be cleared and construction recommenced.⁵⁰

The Federal Court

4.46 The Federal Court, in consultation with the Law Council and other professional bodies, has considered reforms on the use of expert witnesses, which resulted in the promulgation in 1998 of new court rules and a Practice Direction.⁵³ The reforms were patterned after the recommendations of the Woolf Report. The relevant Federal Court Practice Direction contains provisions concerning experts’ duty to the court, the form and content of the expert’s report, and conferences between experts.⁵⁴

4.47 The Federal Court has, however, differed from the English reforms in two important respects. First, while the English reforms were underpinned by a policy of complete control by the court over the use of expert evidence, the calling of expert evidence in the Federal Court is “subject to the control of the parties, with the Court taking some control in exceptional cases.”⁵⁵ Unlike the English rules,⁵⁶ the Federal Court rules do not require parties to seek the permission of the court before they can call expert witnesses. Secondly, the Federal Court has not adopted the concept of the single joint expert introduced in England, although its court rules contain provisions in relation to court-appointed experts.⁵⁷

4.48 Some of the provisions of the Federal Court’s rules concern the manner in which evidence of expert witnesses is received at the trial. The rules include provisions for concurrent evidence (hot- tubbing) to which we have referred. They provide that the court may direct:

• that expert witnesses give evidence after all or certain factual evidence has been led;

• that, after factual evidence has been led, expert witnesses file and serve an affidavit or statement indicating whether they adhere to their earlier opinions or whether, in light of factual evidence led at the trial, they wish to modify those opinions;

• that expert witnesses be empanelled together and occupy a point in the courtroom appropriate for giving expert evidence (not necessarily in the witness box);

• that an expert witness give an oral exposition of his or her opinion, including views about the opinions offered by another expert witness;

• that expert witnesses be cross-examined in a certain manner or sequence, or

• that the cross-examination or re-examination of expert witnesses be conducted by completing the cross-examination or re-examination of one witnesses before the other, or by putting to each expert witness in turn each question until cross-examination or re-examination is completed.⁵⁸

• greater clarity and coherence, in that experts are required to prepare written submissions that are set down as a connected argument and, when giving oral evidence, the same connected thread runs through it, rather than being a series of disconnected responses to questions by counsel;

• experts are able to define for their purposes points of agreement and disagreement; and

• experts are taken as far away from the adversarial field as possible.⁵⁹

4.51 The procedure has now been adopted in some Australian jurisdictions including the Family Court⁶⁰ and the NSW Land and Environment Court.⁶¹

The Family Court

4.52 The use of expert evidence in the Family Court has been the subject of comment and evaluation in recent times by the Australian Law Reform Commission,⁶² the Family Court’s Future Directions Committee,⁶³ and in a judgment of the Full Court of the Family Court.⁶⁴ In 2002, the Family Court published a discussion paper containing procedural reform recommendations relating to expert witnesses. Those recommendations have been adopted and are now part of the Family Law Rules 2004 (Cth), which replaced the Family Law Rules 1984 (Cth), and became effective in December 2004. The concerns that led to the reform of the rules on expert witnesses include:

• partisanship/lack of objectivity of experts;

• experts exceeding their area of expertise; and

• the need for greater clarity of evidence.

Greater control of expert evidence

4.54 Parties who seek to tender a report or adduce evidence from their own experts must, as a general rule, apply to the court for permission to do so.⁶⁶ In this respect, the Family Court has adopted the approach in England of giving the court greater responsibility and control over the use of expert evidence, rather than allowing expert evidence to be adduced at the option of the parties. The court is required to consider whether expert evidence is necessary and, if so, who should give that evidence. A party is not, however, prevented from obtaining advice on technical aspects from the party’s own expert.⁶⁷

4.55 When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:

1. the purposes of the court rules dealing with expert evidence;⁶⁸

2. the impact of the appointment of an expert witness on the costs of the case;

3. the likelihood of the appointment expediting or delaying the case;

4. the complexity of the issues in the case;

5. whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and

6. whether the expert witness has specialised knowledge, based on the person’s training, study or experience: (i) relevant to the issue on which evidence is to be given; and (ii) appropriate to the value, complexity and importance of the case.⁶⁹

4.56 The rules confirm an overriding duty of expert witnesses to the court, prevailing over any obligation to the person instructing or paying the experts’ fees.⁷⁰ The rules spell out in detail the duties of expert witnesses. For example, expert witnesses are required to give an objective and unbiased opinion on matters that are within their knowledge and capability; to carry out their functions in a timely way; to avoid acting on an instruction to withhold agreement when attending a conference of experts; to consider all material facts, including those that may detract from their own opinion; to tell the court if a particular question falls outside their expertise; to produce a report that complies with the rules; and to tell the court if their report is based on incomplete research or inaccurate or incomplete information.⁷¹

4.57 Expert witnesses can ask the court to make orders to assist them to carry out their functions.⁷² This might be where the expert’s duty to the court conflicts with the instructions of a party or where such instructions are inadequate. It may be to assist a single expert where there are conflicting instructions from opposing parties, or where the expert believes the brief is outside his or her expertise, or where the expert believes it would be inappropriate to release a report to a party for some reason. It may be in relation to a dispute about fees. Such direct access to the court emphasises the expert’s independence.⁷³

4.58 If an expert witness does not comply with any of the rules, the court may:

1. order the expert witness to attend court;

2. refuse to allow the expert’s report or any answers to questions to be relied on;

3. allow the report to be relied on, but take the non-compliance into account when considering the weight to be given to the expert witness’s evidence; and

4. take the non-compliance into account when making orders for an extension or abridgment of a time limit; a stay of the case; interest payable on a sum ordered to be paid; or costs.⁷⁴

4.59 The rules allow the use of two types of expert witnesses: (a) experts appointed by each party; and (b) single experts who may be agreed to by the parties or ordered by the court. The rules encourage parties to appoint a single expert.⁷⁵ Those who appoint a single expert do not require the permission of the court to tender a report or adduce evidence from that single expert.⁷⁶

4.60 The court may also, of its own motion or upon application by parties seeking permission to adduce expert evidence, order the appointment of a single expert. When considering whether to appoint a single expert, the court may take into account any of the following factors:

1. the main purpose of the court rules (which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case)⁷⁷ as well as the purposes of the rules specifically dealing with expert evidence;⁷⁸

2. whether expert evidence on a particular issue is necessary;

3. the nature of the issue in dispute;

4. whether the issue falls within a substantially established area of knowledge; and

5. whether it is necessary for the court to have a range of opinion.⁷⁹

1. there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

2. another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

3. there is another special reason for adducing evidence from another expert witness.⁸⁰

4.62 The new rules feature an increased emphasis on the disclosure of matters relating to experts’ reports and their communications with a party. The intention is to help the parties and their experts to focus on the real issues and improve the quality and integrity of the expert’s report, and thereby to narrow the issues and enhance the chances of settlement.⁸¹

Instructions

4.63 All instructions to an expert witness must be in writing and must include (a) a request for a written report; (b) advice that the report may be used in an anticipated or actual case; (c) the issues about which the opinion is sought; (d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and (e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.⁸² A summary of the instructions must be attached to the expert’s report.⁸³

Expert’s report

4.64 Any expert report obtained by a party in a parenting case must be provided to all other parties. The obligation of disclosure extends to a supplementary or further report. Legal professional privilege does not apply in relation to an expert’s report that must be disclosed.⁸⁴ Overriding the legal professional privilege in this context is considered to be in the best interests of children and is aimed at reducing the over-interviewing of children; ensuring full disclosure of matters affecting children; and reducing the issues between the parties.⁸⁵ A party who fails to disclose an expert’s report may not use that report at trial.⁸⁶

Experts’ fees

4.65 A party who has instructed an expert witness must, if requested by another party, give each other party details of any fee or benefit received or receivable by the expert witness.⁸⁷ This is a requirement adopted from the South Australian Supreme Court Guidelines for Expert Witnesses and is intended to monitor any arrangements that could be said to lead to bias on the part of a witness, such as a contingency fee arrangement or a fee disproportionate to the work involved.⁸⁸

Provision of information

4.66 A party can apply for an order that another party provide information to an expert to enable a report to be prepared.⁸⁹ This addresses the situation where one party has an easily available source of expert information to which the other party does not have access and such information is necessary to allow an expert witness to carry out his or her functions properly. Hence, for example, a party may ask the court for an order that information generated by an in-house expert of the other party be provided to an expert witness in the proceedings.⁹⁰

Conduct of trial with experts

4.67 The Family Court has adopted the Federal Court’s “hot-tub” provisions. The rules provide that the court may order an expert to clarify evidence after cross-examination; require certain factual evidence be led before an expert is called; permit a party to close their case subject only to the evidence of an expert; require all experts on a subject to be sworn and available to give evidence in the presence of each other; and require an expert to give an opinion about the evidence of another expert.⁹¹

4.68 The provision for an expert to clarify the expert’s evidence for the judge (which is not found in the Federal Court rules) was inserted on the recommendation of some experts’ groups, who considered that that expert witnesses might not have been able properly to communicate their evidence due to the adversarial way in which trials were conducted.⁹²

Australian Capital Territory

Introduction

4.69 Recent reforms in the ACT relating to expert evidence have focused on two distinct, yet interrelated measures. The first measure involves the inclusion in the ACT Supreme Court Rules of provisions that enable expert evidence to be given concurrently. Secondly, legislation has made it obligatory to use only “agreed experts” (that is, one expert jointly appointed by the parties) or “appointed experts” (court-appointed experts) in all personal injury cases.

Concurrent evidence

4.70 Pursuant to Order 39 Division 9 of the Supreme Court Rules 1937 (ACT), the court may manage the way in which parties adduce expert evidence in certain situations. This is essentially when two or more parties to a case each wish to call expert witnesses to give a professional opinion on the same or a similar issue.⁹³ In such circumstances, the court is able, on application of one of the parties or by its own initiative, to direct:⁹⁴

• that the expert witnesses confer;

• that the expert witnesses produce a report indicating where their opinions agree and differ;

• that the expert witnesses give evidence only after all factual evidence on the question has been given and each party has closed its case on the question subject only to the expert evidence;

• that after all factual evidence has been led, a party which called an expert witness file and serve on each other party an affidavit by that witness stating where the witness adheres to his or her earlier opinion or wishes to modify it in any way;

• that expert witnesses be sworn in one after another, with each explaining his or her opinion and/or commenting upon the other experts’ opinions; or

• that expert witnesses be cross-examined and re-examined by putting each question to them in turn.

Civil Law (Wrongs) Act 2002 (ACT)

4.72 In September 2003, the Civil Law (Wrongs) Act 2002 (ACT) (the “Wrongs Act”) was amended as one of the measures undertaken by the ACT government to reform tort law and, in particular, the law of negligence, as a means of addressing the perceived crisis in medical indemnity and public liability insurance.⁹⁷ The amendments introduced new measures to improve “case processing and management” in personal injury cases.⁹⁸ One such measure was the establishment of a new regime that regulates the extent to which expert medical evidence could be adduced by parties.⁹⁹ This new regime is now contained in Chapter 6 of the Wrongs Act.¹⁰⁰

4.73 Chapter 6 applies only to claims for damages relating to liability for personal injury,¹⁰¹ whether brought in tort, contract, breach of statutory duty or another form of action.¹⁰² Personal injury is defined as bodily injury, including mental or nervous shock and death, which may arise from road traffic accidents, but not from workplace injuries.¹⁰³

4.74 Expert medical evidence may only be given in a proceeding by one expert who has been jointly selected by the parties (an agreed expert) or, failing any agreement, an expert appointed by the court.

4.75 The new regime encourages the parties to a proceeding to agree in writing to joint appointment of one professional to give expert medical evidence in the proceeding.¹⁰⁴ The agreed expert is able to give evidence on any issue on which the expert is so qualified given his or her field of expertise.¹⁰⁵

4.76 In circumstances where the parties cannot or do not agree on an expert, either party may make an application to the court, or the court may of its own initiative, appoint a professional to give expert medical evidence in the proceeding.¹⁰⁶ The court must not appoint a medical expert unless it is satisfied that he or she is an expert on the issue in question.¹⁰⁷ As with agreed experts, appointed experts may only give evidence on an issue on which they are so qualified given their field of expertise.¹⁰⁸

4.77 When making an application to the court for the appointment of a particular expert, a party must outline in affidavit evidence such things as:¹⁰⁹

• Attempts made by the parties to agree on a joint medical expert;

• The issues in the case for which expert medical evidence is sought;

• A list of qualified persons, why they are so qualified and an estimate of their hourly fee for the giving of expert medical evidence; and

• Any other matters that the party believes to be relevant to the application.

4.79 The new regime provides that, in certain circumstances, more than one expert may be used in a claim for damages for personal injury. The court may appoint additional experts where there are two or more issues arising in the proceeding that require expert evidence and the agreed or appointed expert already involved does not have the necessary qualifications to give evidence on all the issues;¹¹⁰ or where the court considers that the interests of justice require that an additional expert or experts be appointed.¹¹¹ The legislation specifically provides that the court may not appoint another expert on the same issue unless it is required in the interests of justice.¹¹²

4.80 In general terms, the costs associated with either an agreed or appointed expert are to be paid by the parties equally, or by agreement between them, or according to order of the court.¹¹³ A party may, when making an application to the court for the appointment of a particular expert, also apply for a particular order about costs relating to that expert. In such circumstances, the supporting affidavit must also address why the particular costs order should be made.¹¹⁴

4.81 The Wrongs Act expressly provides that the primary duty of an agreed or appointed expert is to the court and that he or she is not an advocate for a particular party.¹¹⁵ The role of the expert is to assist the court impartially on the issue on which he or she is giving evidence.¹¹⁶ As such, parties have an obligation to ensure that all information relevant to the issue on which the expert is giving advice is forwarded to the expert and, if the expert is not briefed jointly, that each party has equal opportunity to do so.¹¹⁷ The agreed or appointed expert has the power to write to the registrar of the court to seek directions as to the expert medical evidence he or she is to give in a case.¹¹⁸

4.82 Expert evidence is given by the filing of a written report with the court, which must comply with any practice direction relating to a code of conduct for agreed or appointed experts.¹¹⁹ Once the written report is tendered as evidence at the commencement of a proceeding, the expert must, on reasonable notice, be available for cross-examination.¹²⁰

4.83 Although this matter relates more to substantive and procedural law, we note for completeness that Chapter 6 expressly provides that, when an agreed or appointed expert is called upon to give an opinion as to whether a particular treatment amounts to medical negligence, he or she must have regard to whether the treatment was in accordance with an opinion widely held by a significant number of respected practitioners in the relevant field.¹²¹

4.84 Chapter 6 applies only to causes of action arising after its commencement. At the time of writing this report, no case has yet come to trial that is based on a cause of action that attracts the application of Chapter 6 of the Wrongs Act, and thus there is no evidence yet available that demonstrates how this legislation is working in practice.¹²²

2. H K Woolf, Access to Justice (Interim Report to the Lord Chancellor on the civil justice system in England and Wales, HMSO, London, 1995) at 181; H K Woolf, Access to Justice (Final Report to the Lord Chancellor on the civil justice system in England and Wales, HMSO, London, 1996) at 137.

3. See Preamble to the Code of Guidance on Expert Evidence.

4. See The Admiralty and Commercial Courts Guide (6th edition, 2002) para H1.1 (witness statements in admiralty and commercial proceedings). Court guides are published giving guidance for proceedings in the Admiralty and Commercial Courts, the Chancery Division, the Queen’s Bench Division, mercantile courts, the Patents Court and the Supreme Court Costs Office.

5. Civil Procedure Rules 1998 (Eng) (hereafter cited as “CPR”) r 35.4(1).

6. Rules of the Supreme Court 1965 (Eng) (hereafter cited as “RSC”) O 38 r 36.

7. Clarke v Marlborough Fine Art (London) Ltd (No 3) [2002] EWHC 11 (Ch).

8. In Coker v Barkland Cleaning Co, TLR, December 6, 1999, where the issue was whether the claimant in a personal injury case had been hit by a machine on the factory floor, the claimant, who won the case, failed to recover the cost of instructing an expert as the court decided expert evidence was unnecessary.

9. See National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68.

10. Stevens v Gullise [1999] BLR 394 and [1999] 11 CL 47.

11. CPR r 35.14(1) and (2).

12. CPR r 35.12.

13. CPR r 35.5(1).

14. CPR Practice Direction 35 para 2.2-2.5. See also CPR r 35.10(3) and r 35.3.

15. CPR r 35.13.

16. CPR r 35.6(1) and (2).

17. CPR r 35.6(2)(c)(i) and (ii).

18. CPR r 35.6(3).

19. CPR r 35.6(4).

20. CPR r 35.7.

21. Oxley v Penwarden [2001] CPLR 1.

22. CPR r 35.7(3).

23. Code of Guidance on Expert Evidence para 35.

24. See The Queen’s Bench Guide (2000) para 7.9.5; Chancery Division Guide para 4.11.

25. Commercial Court Guide at H2.3-H2.4.

26. Simms v Birmingham Health Authority [2001] Lloyd’s Law Reports 382.

27. Oxley v Penwarden [2001] CPLR 1.

28. Daniels v Walker [2000] 1 WLR 1382.

29. See also Daniels v Walker [2000] 1 WLR 1382; Layland v Fairview New Homes Plc [2002] EWHC 1350 at para 27-32.

30. [2001] CP Rep 68.

31. Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210.

32. The Court of Appeal affirmed the Master’s order that the claimant’s parents could not have a conference with the single joint experts in the absence of the other party.

33. Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210.

34. See A May, “The English High Court and Expert Evidence” (2004) 6 Judicial Review 353 at 382.

35. H D Sperling, “Commentary on Lord Justice May’s paper: ‘The English High Court and Expert Evidence’” (2004) 6 Judicial Review 383 at 387-388.

36. Uniform Civil Procedure Rules 1999 (Qld) r 426.

37. Uniform Civil Procedure Rules 1999 (Qld) r 428.

38. Uniform Civil Procedure Rules 1999 (Qld) r 429.

39. Uniform Civil Procedure Rules 1999 (Qld) r 427.

40. The new rules also contain important provisions on requirements relating to an expert’s supplementary report, the court’s power to direct experts to hold joint meetings, immunity of experts and costs.

41. Uniform Civil Procedure Rules 1999 (Qld) r 429F. It has been suggested that, if the rules work well in the Supreme Court, their operation will probably be extended to the District Court and the Magistrates Courts: Justice Margaret Wilson, The New Expert Witness Rules (Breakfast Address to the Australian Insurance Law Association, Brisbane, 28 October 2004) at para 14.

42. Uniform Civil Procedure Rules 1999 (Qld) r 429G.

43. Uniform Civil Procedure Rules 1999 (Qld) r 429H(6), r 429N(2).

44. Uniform Civil Procedure Rules 1999 (Qld) r 429K(1).

45. Uniform Civil Procedure Rules 1999 (Qld) r 429J.

46. Uniform Civil Procedure Rules 1999 (Qld) r 429K(2).

47. Uniform Civil Procedure Rules 1999 (Qld) r 429N.

48. Uniform Civil Procedure Rules 1999 (Qld) r 429H(6).

49. Uniform Civil Procedure Rules 1999 (Qld) r 429S, r 429R.

50. M Wilson, The New Expert Witness Rules (Breakfast Address to the Australian Insurance Law Association, Brisbane, 28 October 2004) at para 22.

51. M Wilson, The New Expert Witness Rules (Breakfast Address to the Australian Insurance Law Association, Brisbane, 28 October 2004) at para 21-22.

52. R Jacob, “Court-appointed Expert v Party Expert: Which is Better?” (2004) 23 Civil Justice Quarterly 400.

53. Federal Court Rules 1979 (Cth) O 34A; Federal Court, Practice Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia (15 September 1998). The Practice Direction has been superseded by a new one issued on 19 March 2004.

54. Federal Court, Practice Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia (19 March 2004).

55. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at para 13.54.

56. See CPR r 35.4(1).

57. Federal Court Rules 1979 (Cth) O 34.

58. Federal Court Rules 1979 (Cth) O 34A r 3(2)(c)-(i).

59. Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR 41-593.

60. See para 4.67 below.

61. See para 6.49 – 6.52.

62. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 1999) Chapter 8.

63. Family Court of Australia, Future Directions Committee Report (2000) at 40-42.

64. W and W [2001] FamCA 216.

65. Explanatory Statement to Family Law Rules 2004 (Cth).

66. Family Law Rules 2004 (Cth) r 15.51. Permission under this rule is not required in the case of a single expert witness or if a child representative intends to tender a report or adduce evidence at a hearing or trial from one expert witness on an issue.

67. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.51.

68. These are: (a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; (b) to restrict expert evidence to that which is necessary to resolve or determine a case; (c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; (d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and (e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice: Family Law Rules 2004 (Cth) r 15.42.

69. Family Law Rules 2004 (Cth) r 15.52(3).

70. Family Law Rules 2004 (Cth) r 15.59(1) and (2).

71. Family Law Rules 2004 (Cth) r 15.59(3).

72. Family Law Rules 2004 (Cth) r 15.60.

73. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.60.

74. Family Law Rules 2004 (Cth) r 15.64.

75. See Family Law Rules 2004 (Cth) r 15.52(3)(c).

76. Family Law Rules 2004 (Cth) r 15.44(2).

77. Family Law Rules 2004 (Cth) r 1.04.

78. See Family Law Rules 2004 (Cth) r 15.42.

79. Family Law Rules 2004 (Cth) r 15.45(2).

80. Family Law Rules 2004 (Cth) r 15.49.

81. Explanatory Statement to Family Law Rules 2004 (Cth) Overview.

82. Family Law Rules 2004 (Cth) r 15.54(2).

83. Family Law Rules 2004 (Cth) r 15.62(b).

84. Family Law Rules 2004 (Cth) r 15.55.

85. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.55.

86. Family Law Rules 2004 (Cth) r 15.58.

87. Family Law Rules 2004 (Cth) r 15.56.

88. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.56.

89. Family Law Rules 2004 (Cth) r 15.57.

90. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.57.

91. Family Law Rules 2004 (Cth) r 15.70.

92. Explanatory Statement to Family Law Rules 2004 (Cth) r 15.70.

93. Supreme Court Rules 1937 (ACT) O 39.9 r 49F(1).

94. Supreme Court Rules 1937 (ACT) O 39.9 r 49G.

95. Supreme Court Rules Amendment Subordinate Law 1999 (ACT) No 26 r 1.

96. Explanatory Statement to the Supreme Court Rules Amendment Subordinate Law 1999 (ACT) No 26 at 1; See para 4.48 – 4.51 of this report.

97. See Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT) s 2. See also Australian Capital Territory, Parliamentary Debates (Hansard) Legislative Assembly, 24 June 2003, the Hon J Stanhope, Attorney General, Second Reading Speech at 2245; Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT) at 2.

98. Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT) at 2.

99. Australian Capital Territory, Parliamentary Debates (Hansard) Legislative Assembly, 24 June 2003, the Hon J Stanhope, Attorney General, Second Reading Speech at 2246; Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT) at 2.

100. The new regime was introduced in the Civil Law (Wrongs) Amendment Bill 2003 (ACT) as new Chapter 3c. However, pursuant Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT) s 55, the Civil Law (Wrongs) Act 2002 (ACT) was renumbered.

101. Civil Law (Wrongs) Act 2002 (ACT) s 83(1). Chapter 6 applies only to claims that are based on a cause of action that arises after its commencement on 8 September 2003: Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT) s 2.

102. Civil Law (Wrongs) Act 2002 (ACT) s 82.

103. Civil Law (Wrongs) Act 2002 (ACT) s 1 and s 83.

104. Civil Law (Wrongs) Act 2002 (ACT) s 85(1).

105. Civil Law (Wrongs) Act 2002 (ACT) s 85(3).

106. Civil Law (Wrongs) Act 2002 (ACT) s 86(1).

107. Civil Law (Wrongs) Act 2002 (ACT) s 86(4).

108. Civil Law (Wrongs) Act 2002 (ACT) s 86(6).

109. Supreme Court Rules 1937 (ACT) O 39.8A r 45.

110. Civil Law (Wrongs) Act 2002 (ACT) s 86(2)(a).

111. Civil Law (Wrongs) Act 2002 (ACT) s 86(2)(b).

112. Civil Law (Wrongs) Act 2002 (ACT) s 86(3).

113. Civil Law (Wrongs) Act 2002 (ACT) s 90.

114. Supreme Court Rules 1937 (ACT) O 39.8A r 45(g).

115. Civil Law (Wrongs) Act 2002 (ACT) s 87(2)-(3).

116. Civil Law (Wrongs) Act 2002 (ACT) s 87(1).

117. Civil Law (Wrongs) Act 2002 (ACT) s 88.

118. Supreme Court Rules 1937 (ACT) O 39.8A r 49A. Note that, pursuant to the definition of expert in Supreme Court Rules 1937 (ACT) O 39.8A r 43, r 49A applies to both agreed and appointed experts.

119. Supreme Court Rules 1937 (ACT) O 39.8A r 49B-49C.

120. Supreme Court Rules 1937 (ACT) O 39.8A r 49D-49E.

121. Civil Law (Wrongs) Act 2002 (ACT) s 87(4). This provision was the subject of an amendment to the original Civil Law (Wrongs) Amendment Bill 2003 (ACT). See Australian Capital Territory, Parliamentary Debates (Hansard) Legislative Assembly, 24 June 2003 at 3011-3013.

122. Information supplied by Master Harper of the Supreme Court of the ACT (11 May 2005).