Kanar Saber v Omar Ali and the Nominal Defendant (No 3) [2011] NSWDC 190

District Court New South Wales

Medium Neutral Citation: Kanar Saber v Omar Ali and the Nominal Defendant (No 3) [2011] NSWDC 190 Decision date: 05 October 2011 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: I will allow the question. Catchwords: CIVIL - question asked of expert psychiatrist - objection that question asks expert to go beyond expertise - objection that opinion should have been put into a report - opinion is an update of material contained in earlier reports Legislation Cited: UCPR 31.28 Category: Procedural and other rulings Parties: Kanar Saber Omar Ali The Nominal Defendant Representation: Ms EEJ Welsh for the plaintiff Mr J Guihot for the first defendant Mr SE Torrington for the second defendant File Number(s): 2010/301783

Judgment 1. Ms Welsh has asked a question of the expert who is a psychiatrist based upon evidence which he heard this morning from the plaintiff's personal carer. Ms Welsh has asked the witness to describe the ways in which the two conditions which the doctor diagnosed - namely a major depressive disorder and a post-traumatic-stress disorder - play out to show the need for the care which he heard about this morning from the carer. 2. Both Mr Guihot for the first defendant and Mr Torrington for the second defendant object. Mr Torrington objects upon the basis that this witness ought not to be asked any question which asks him to stray beyond his expertise. Specifically he should not be asked to comment on any physical disabilities which the plaintiff may have which in turn may lead to the need for domestic assistance. In my opinion Mr Torrington is right but Ms Welsh has made it clear that she will not be asking any question of this witness which would seek such an opinion. 3. Mr Guihot's objection is based upon UCPR 31.28. He says that the substance of the opinion which Ms Welsh is attempting to get from Dr Clark should have been put into a report. 4. However I would regard it as appropriate for leave to be granted under UCPR 31.28(4)(b) because it seems to me that what is happening is that the doctor is being asked to comment on evidence which he has heard this morning whilst he sat in the back of the court and I would regard it as an update of the material contained in his earlier reports. 5. For that reason I would allow the substance of the question. However I would require Ms Welsh to break the question up into two, to distinguish between the two diagnosed conditions.