The Supreme Court Professional Negligence List
August State Legal Conference '99 Sydney, 24-27 August 1999 The Hon Justice H D Sperling
Supreme Court of New South Wales
The List
The Professional Negligence List is one of several specialist lists in the Supreme Court. Others include the Defamation List, the Commercial List, the Construction List, and the Administrative Law List. Mostly, cases come into these lists as soon as the proceedings are instituted. Preparation of the proceedings for trial is then supervised by the judge in charge of the list or his or her deputy. That is their distinguishing feature. It is the new way.
The Professional Negligence List is a recent addition. It came into operation on 1 April 1999. It has been in full swing only since conference hearings began in July 1999 under the new arrangements.
Mr Justice Abadee is in charge of the List. I am his back up.
The Rules and the Practice Note
The list is governed by Pt 14C of the Supreme Court Rules and Paractice Note No. 104. Together, the rules and the practice note provide a scheme for management of professional negligence cases in the Supreme Court. Copies of Pt 14C and Practice Note 104 appear as appendices to this paper.
The scheme was designed in close consultation with interested parties, including professional organisations, and with recourse to management regimes developed in other jurisdictions.
The List is designed to accommodate professional negligence claims as defined. That includes what may broadly be described as “medical negligence” and “legal negligence” claims. Pt 14C r 1: Professional negligence is defined as meaning breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional, a hospital, a solicitor or a barrister. Pt 14C r 1: A professional negligence claim includes a claim made by cross-claim. Pt 14C r 2: The List does not take in proceedings in the Equity Division or in the Construction List.
The effect of these provisions is that all proceedings involving a medical negligence claim or a legal negligence claim (as defined) are potentially covered by the professional negligence list, with the exception only of proceedings in the Equity Division or in the Construction List.
There are two ways that proceedings may be entered in the List. The first arises when the proceedings are commenced. Pt 14C r 3(1): A statement of claim or a cross-claim which includes a claim for professional negligence must be endorsed “Professional Negligence List”. Pt 14C r 3(2): The proceedings as a whole are then entered in the List. PN104 para 4: Practice Note 88, which relates to differential case management, does not apply to cases in the Professional Negligence List.
The effect of these provisions is to bring professional negligence proceedings under the supervision of a judge at a much earlier stage than has previously been the case.
Pt 14C r 3(3): As to existing proceedings, the Court may, on application by a party or of its motion, transfer proceedings to the List. That sub-rule is designed to deal with proceedings commenced before the List came into operation, and also with new professional negligence proceedings which have not been instituted in the List as required by the rules. Any attempt to avoid the List will be dealt with under this rule. There has been only one such attempt, so far as I am aware. It was dealt with by an order under r 3(3) and a rap over the knuckles.
A decision has been made to bring into the List all professional negligence proceedings (as defined), whether instituted before or after the commencement of the List on 1 April 1999. A bulk transfer of some 92 legal negligence cases has been made. A bulk transfer of a large number of medical negligence cases is being processed at the time of drafting this paper.
As at 31 July 1999, 73 medical negligence cases had been entered in the List and 115 legal negligence cases, a total of 188 cases. The number of cases in the List will be substantially increased with the bulk transfer of medical negligence cases being processed.
PN104, para 6: When new proceedings are entered in the List, a first conference hearing is immediately appointed for a date approximately three months hence. An earlier conference hearing is appointed for existing cases which are entered in the List
There is a conference hearings list every fortnight, before the judge in charge of the List, Mr Justice Abadee, or myself. There will be 3 weeks of continuous conference hearings in December of this year to accommodate the large number of existing cases coming into the list.
The Court expects that new matters will be substantially prepared for hearing during the period of three months leading up to the first conference hearing. Pt 14C r 6(1): In medical negligence cases, preparation is given a head start by the requirement that a claim (whether by statement of claim or cross-claim) is to be accompanied by an expert report or reports supporting breach of duty of care or contractual obligation, the nature of extent of damage alleged and the causal relationship between breach and damage. Pt 14C r 6(2): Where a medical negligence claim is transferred to the List such a report must be served within 28 days. Pt 14C r 6(1) (the proviso): The Court may dispense with this requirement. That will be done where proceedings have to be commenced urgently, such as where a limitation period is about to expire.
There is no such automatic requirement for an expert’s report in the case of legal negligence cases because they do not always require expert evidence. Pt 14C r 6(3): A report supporting such a claim may be ordered by the Court.
The need for prompt access to or copies of medical and hospital records has been recognised. PN104 para 9: Costs may be awarded in respect of work caused unnecessarily by unreasonable failure to comply with such a request, whether the failure occurs before or after the commencement of proceedings. Unnecessary work might include correspondence, a notice to produce, a subpoena or discovery. So far no such problem has been brought to attention. Perhaps the threat of a sanction in costs has contributed to that.
PN104 para 8: It is expected, in the case of new matters, that by the first conference hearing, that is, approximately three months after the proceedings have been entered in the List, the parties’ solicitors will have conferred; filed defences and cross-claims; held medical examinations; narrowed the issues; agreed on any necessary interlocutory orders, directions and arrangements; prepared a draft timetable for any future management of proceedings, and prepared draft short minutes of any orders or directions to be sought at the first conference hearing.
Pt 14C r 7: Originating process containing a claim for professional negligence is valid for service for four months (shorter than for service of process generally); the court can extend the time. That is not an invitation to delay service. PN104 para 7: Process must be served promptly, in order to allow sufficient time for doing what has to be done prior to the first conference hearing.
PN104 para 10: The primary purpose of the regime and of conference hearings in particular is to ensure that the proceedings are disposed of as justly, as quickly and as cheaply as possible. PN104 para 11: Conformably with that objective, each party not appearing in person must be represented by a barrister or a solicitor familiar with the case and sufficiently instructed to deal with appropriate orders and directions.
PN104 para 11: I should add that particulars, discovery and interrogatories will be ordered only if the need is demonstrated with particularity.
One possible outcome of a conference hearing is that the case may be transferred to the District Court. That will be done where the damages likely to be recovered are modest and the case is not unusually complex. That has already occurred at a conference hearing in one or two cases.
Separate trials on liability and causation of damages will be freely ordered in appropriate cases. That will include some infants’ claims and cases where a medical condition has not yet stabilised. Early hearings on liability and causation of damages will ordinarily be ordered where the assessment of damages has to be deferred. Otherwise, witnesses are needlessly lost, documents may be destroyed and evidence about the events becomes increasingly unreliable. Orders of this kind have already been made.
PN104 para 13: Litigants may expect to be urged strongly to submit their case to mediation. It is increasingly recognised that mediation can provide an early resolution to the mutual satisfaction of the parties. At this stage, the Court has no power to order mediation otherwise than by consent. However, there are reports of a success rate for mediation of about 60% in jurisdictions where mediation is used more extensively and where mediation may be ordered over objection. The same success rate seems to be maintained irrespective of whether the parties consent or not. A compulsory mediation power may be provided by legislation in the not too distant future.
A start has been made in persuading litigants to submit their cases to mediation.
Parties may also expect to be directed to request expert witnesses to confer. The procedure is designed to identify the technical issues in the case and to narrow those issues where possible. PN104 para 18: A party retaining an expert witness is required, at the time of engaging an expert to report, to provide the expert with a copy of the schedule to the Practice Note. The schedule is also to be provided to expert witnesses who have been engaged before commencement of the List. It provides that the court may direct the parties to request expert witnesses to confer on a “without prejudice” basis, to endeavour to agree, and then to make a joint statement to the court, specifying matters agreed and matters not agreed with the reasons for disagreement. The schedule further provides that it is expected that an expert witness will exercise his or her independent, professional judgment in that regard, and will not be instructed or requested to withhold or avoid agreement.
A start has also been made in arranging such conferences between expert witnesses. It is too early to report on the results.
Generally speaking, interlocutory applications in relation to professional negligence cases will be heard on conference hearing days. PN104 para 14: Applications may be made orally at a conference hearing, on notice given by notice of motion or on notice given informally by letter to the registrar; urgent applications and applications by consent may be made at any time by arrangement with the Professional Negligence List judge. Applications in relation to professional negligence cases are no longer listed in the Common Law Division applications list.
When a matter is ready for trial, it is entered in the Holding List, but the proceedings retain their character as professional negligence matters and continue to be subject to the Professional Negligence List rules and practice note. Cases are periodically called up from the Holding List to be fixed for hearing. Expedition may be sought for special cause, as in any other case. Professional negligence cases will be allocated to judges in the Division for hearing in the same way as other cases. They will have no priority over other types of proceedings.
The present listing situation is that cases estimated at 7 days or less are coming on for hearing about three months after entry in the Holding List. Cases estimated at 8 days or more are coming on for hearing about 18 months after being entered in the Holding List. The delay in hearing long cases is a matter of concern, and is receiving attention. There is to be a blitz on long matters generally later this year and early next year. With this and other strategies, it is anticipated that the delay in hearing long matters will be progressively reduced over the next 18 months or so, with all proceedings in the Division , short or long, coming on for hearing within 3 months or thereabouts from entry in the Holding List.
In many instances, professional negligence cases in the List are already being entered in the Holding List, ready for trial, much more quickly than has been the situation to date. So the List is already paying its way.
PN104 para 15: The Practice Note provides for a final conference hearing in professional negligence cases 3 months or so before the date for hearing. That is to ensure that the proceedings will still be ready for trial when they come on for hearing. Such a final conference may already be unnecessary in the case of short matters and may become increasingly unnecessary in the case of long matters as the delay in fixing those matters for hearing is reduced.
To date Justice Abadee has been impressed with the positive way the legal profession has responded to the new regime. I share that view. The support which the List has received from the legal profession is very much appreciated.
The Professional Negligence List and the problem of bias in relation to expert evidence
The Professional Negligence List is likely to be a focus for experiment in relation to expert evidence. This is particularly so because of the problem of bias in relation to expert evidence. I would like to give you my personal views on this topic. They are not necessarily the views of any other judge.
There is an unavoidable tension between the objectives of a judge and the objectives of litigants. The judge wants to get it right. The litigants want to win. This means that judges and litigants look at expert evidence differently.
For a judge, the function of the expert witness is to assist the court to make valid findings. But under the adversarial system, the evidence is presented by the litigants, not the judge. And it is selected on the basis of what will help the party to win, not on the basis of whether it will help the court to find the facts correctly. Indeed, the reliability of evidence is antipathetical to the interests of the litigant except where reliability and the interests of the litigant happen to coincide accidentally.
Natural selection ensures that expert witnesses will serve the interests of their clients in this way. Experts who measure up tend to be kept on and are used again by the same client, the same solicitors and others. Experts who do not measure up tend not to be kept on or, if it is too late, tend not to be used again.
These observations relate to expert witnesses who are retained for the case, rather than to professionals - medical or legal - who have played a part in the course of events giving rise to the proceedings, including treating doctors. Such experts may also be asked to provide an opinion for the purpose of the proceedings, as well as giving evidence about things that occurred. It is to be expected that the opinions of such witnesses may be influenced by a personal interest in the outcome of the case. That is human nature.
Under the adversarial system, the opposing party is relied upon to disclose the weaknesses in the other side’s evidence by cross-examination or by evidence to the opposite effect. That sometimes happens but it may not happen, particularly when expert opinion evidence on both sides is extravagant.
An appearance of objectivity in the expert witness is a marketable attribute, irrespective of whether the witness is objective or not. Unless the witness is or seems to be objective, the witness is of no use to the litigant. That makes the detection of bias in an expert witness difficult. A judge is ill equipped for this task. Nonetheless, many judges believe that they can sometimes recognise bias in an expert witness when it occurs. A recent survey of Australian judges on the topic of expert evidence, sponsored by the Australian Institute of Judicial Administration, bears this out.
The report on the survey by Dr I Freckelton and others was published in July 1999 under the title “Australian Judicial Perspectives on Expert Evidence: An Empirical Study” (the Freckelton report). All judges in Australia, 478 of them, were sent the questionnaire. Judges without trial experience were asked not to respond. 51% of those sent the questionnaire, 244 judges, replied. The response rate for judges with trial experience was thought by the authors to be closer to the 60% mark.
Judges were asked about bias and partisanship on the part of expert witnesses. 65% said they encountered bias “occasionally” (Q2.2). (Here and following, except where indicated, the percentages are of the 244 judges who responded to the questionnaire.) 26% said they encountered bias “often” (Q2.2). 70% said the same expert witnesses appeared regularly before them for the same side (Q 6.7). 85% said they had encountered partisanship in expert witnesses (Q 6.8). Of those, 47% (or 40% of the total respondents) said that was a significant problem for the quality of fact-finding in their court (Q 6.9).
These are significant findings. About 1 in 4 of the judges who responded said they encountered bias often, and about 2 in 5 said that partisanship was a significant problem for the quality of fact-finding.
The authors of the survey invited respondents to make comments. I quote a comment which is said by the authors to have been typical:
In the ordinary run of personal injury work and to a lesser extent in other work, the expert witnesses are so partisan that their evidence is useless. Cases then have to be decided on probabilities as best one can.
Recent developments suggest the courts are likely to respond to the problem of bias in the expert witness more actively than they have done in the past.
Codes of conduct
In 1993, a code of conduct for expert witnesses was set out in ten paragraphs by Creswell J in The “Ikarian Reefer” [1993] 1 Lloyd’s Rep 455, 496 - the “Ten Commandments” for the expert witness. In 1995 and 1997, the code was enthusiastically endorsed on two occasions in the English Court of Appeal. I quote the opening words of the code and the first two numbered paragraphs.
“The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.”
In this country, the Federal Court has issued guidelines for expert witnesses. They are incorporated in a practice direction issued by press release (jointly with the Law Council of Australia) in September 1998. The practice direction requires legal practitioners to provide prospective expert witnesses with a copy of the guidelines when the expert is retained for a report or to give evidence. The guidelines include a statement of the expert’s duty to the court. Four of the guidelines are as follows:
· An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
· An expert witness is not an advocate for a party.
· An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
· If experts are instructed to confer, it would be improper conduct for an expert to be given or to accept instructions not to reach agreement.
A schedule to the Supreme Court practice note is in similar terms to the Federal Court practice direction. PN 104 para 18: The schedule has effect whenever a person is or has been engaged by a party with a view to giving expert evidence; and a copy of the schedule has to be provided to the expert by the engaging party.
Because of the practicalities of the adversarial system of litigation to which I have referred, promulgation of such codes of conduct for expert witnesses and judicial criticism for non-compliance is unlikely, in my view, to have much effect.
Consultation between experts
I have referred to the Federal Court practice direction and the schedule to the Supreme Court practice note. Under those regimes, expert witnesses are put on notice that the court may look to them to confer in good faith and to provide a joint report specifying matters of agreement and matters of disagreement with the reasons for disagreement.
There is precedent for this approach elsewhere. For example, a meeting of experts, presided over by the arbitrator, is commonplace in building arbitrations. It is called a “conclave”.
Judges who have had expert witnesses confer, whether pursuant to a directions power or by informal request, are very enthusiastic about the approach. It seems that, when the experts have to justify their position to a fellow professional, extreme views tend to be moderated. It is one thing to present a biased opinion to a lay audience such as a court, which is ill equipped to evaluate it. It is another thing to do so in discussion with a professional colleague. Once expert witnesses know, before committing themselves to an opinion, that they may have to justify that opinion to a qualified listener, the approach has the potential to reduce biased expert opinions being advanced in reports from the start.
The rules of the Federal Court also make provision for the “hot tub” method. This was developed in the Australian Competition Tribunal and was adapted for use in the Federal Court by Lockhardt J: Re Queensland Independent Wholesalers Ltd (1955) ATPR 41-438, at 40925. The rules provide for experts to give their evidence on the same occasion, beginning with an oral exposition by each, a comment by each on the opinion of the other (or others), followed by cross-examination and re-examination of the experts, either witness by witness on all issues or, alternatively, topic by topic. The approach has obvious attractions but I do not believe it would be practicable or cost effective in the ordinary run of professional negligence litigation.
Court appointed expert
A more direct response to the problem of bias would be for the judges to make use of court appointed experts.
The Supreme Court already has the power to appoint an expert to prepare a report and for the report to be received in evidence, with the parties having a right to cross-examine the appointed expert: Pt 39.
A reading of the literature would suggest that the appointment of an expert by the court has rarely been done, and reasons have been advanced to explain why this is so. It seems, however, that the appointment of a court expert is not as unusual in this country as the literature would suggest. In the Freckelton study, 11% of respondents said they had called an expert witness themselves in the previous 5 years, 3% more than 5 times (Q 9.2). But nearly half of the respondents said they did not have the power to call an expert witness (Q 9.1), so about 20% of judges who believed they had the power to do so had exercised that power in the previous 5 years, with about 5% of those who believed they had the power doing so more than 5 times. Of those who had appointed an expert, 97% said it had been “helpful” or “very helpful” for the quality of the fact-finding process (Q 9.4). 49% of judges thought more use of court appointed experts would be helpful (Q 9.5).
On the most conservative analysis of these figures, an average of 16 court expert appointments a year were made by the 116 judges who considered they had the power to do so. That is, on average, an appointment a year by 1 judge in 7 who considered he or she had the power. Consistently with the data, the true incidence of such appointments might be 2 or 3 times that.
The actual practice of the courts seems to answer the negative rhetoric. So does the response by 1 judge in 2 who thought more use of court appointed experts would be helpful. It would be the fact, however, that it is rare for judges of my own court to appoint an expert.
Some law reform reports have recommended that the courts should have the power to limit the expert evidence to that of a court appointed expert, with the parties not being permitted to call their own experts. That was the recommendation of Lord Woolf in his report on the civil justice system in England and in Wales, “Access to Justice” (1996), which has now been substantially adopted in the Civil Procedure Rules (1999) of the English High Court. Similar recommendations have been made by the Australian Law Reform Commission in a background paper, “Experts” (January 1999), and by the Law Reform Commission of Western Australia in a report “Consultation Paper: Expert Evidence in Civil Proceedings” (December 1998). A similar provision recommended by the Litigation Reform Commission of Queensland in the Uniform Civil Procedure Rules (Qld) (1999).
Referees
The most radical and potentially the most effective way of dealing with the problem of bias in expert witnesses is the referral of technical questions to an expert referee pursuant to Pt 72 of the Supreme Court Rules.
Part 72 gives the court a broad power to refer the whole or part of proceedings to a referee to inquire into and report back on any matter. The referee may inquire into the matter referred out in such manner as he or she thinks fit, subject only to observance of the rules of natural justice. The referee’s report may be accepted, varied or rejected by the court.
There is a further advantage in such references. Apart from the problem of bias in expert witnesses, it is seriously questionable whether courts are the best place to resolve complex technical issues. I refer to findings in the Freckelton study, that a significant proportion of judges had, at least occasionally, encountered evidence from experts which they considered they were not able to evaluate adequately (Q2.4); and that a significant proportion of judges said they often had difficulty in evaluating the opinions expressed by one expert as against those expressed by another (Q 3.7). In addition to those answers, 29% of judges said the courtroom was not, in their view, a forum in which the reliability of expert theories and techniques is adequately evaluated (Q 6.4). 52% said it is and 19% had no opinion or did not answer the question. So, only 1 in 2 judges was sufficiently enthusiastic about the present system to support the courts as a reliable venue for the evaluation of expert theories and techniques, and 1 in 3 judges thought they were not. Many of the judges in the majority qualified their answers.
Prophesy
Speaking for myself - and I cannot speak for any other judge or judges - I think it very likely that all of these approaches will come to be utilised or more utilised in response to the problem of bias in expert evidence. And I would not be surprised if the Professional Negligence List in the Supreme Court proves to be the sharp end of the ship.
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