Supreme Court New South Wales Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.2) [2013] NSWSC 1659 Hearing dates: 08/11/2013 Decision date: 08 November 2013 Jurisdiction: Common Law Before: Garling J Decision: Order, pursuant to rule 31.23(3) and 31.23(4) of the Uniform Civil Procedure Rules 2005 that the plaintiff have leave to rely upon the reports of Professor Tattersall dated 31 August 2012, 2 October 2012 and 23 October 2013, notwithstanding that those reports do not adopt the Expert Witness Code of Conduct contained in schedule 7 of the UCPR. Catchwords: EVIDENCE - expert evidence - admissibility of evidence - compliance with r 31.23 of Uniform Civil Procedure Rules 2005 - whether discretion should be exercised under r 31.23(3) of UCPR - interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial - overriding duty of trial judge to ensure a fair trial - overriding purpose of UCPR Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Fatal Accidents Act (UK) 1976 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Hodder Rook & Associates Pty Limited v Genworth Financial Mortgage Insurance Pty Limited [2011] NSWCA 279 O'Reilly v Western Sussex Hospital NHS Trust [2010] NSWSC 909 Ray Fitzpatrick Pty Limited v Minister for Planning [2007] NSWLEC 791 Category: Procedural and other rulings Parties: Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3) Representation: Counsel: Mr Bartley SC / Mr Toomey (P) Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3) Solicitors: Beilby Poulden Costello (P) Kennedys (Australasia) Pty Ltd (D1, D2, D3) File Number(s): 2011/187028 EX TEMPORE Judgment 1The plaintiff, Sue Ellen O'Reilly, claims damages pursuant to the Fatal Accidents Act (UK) 1976, and for personal injury by way of psychiatric injury arising out of the death of her husband, Dr David O'Reilly, on 2 November 2006. She alleges, and the defendants deny, that the late Dr O'Reilly's death was caused by, or materially contributed to by, negligence on the part of the defendants, Mr Poushin and Mr Sen, both specialist medical practitioners, for whose negligence the first defendant, the Western Sussex National Health Service Trust, is said to be vicariously liable. 2Separate proceedings were commenced in 2009 and 2011. Those separate proceedings were consolidated on 12 September 2011 pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 with the consent of all parties. 3The matter first came before me for judicial case management on 21 December 2012. Prior to that time the matter had been in the Registrar's list for management. Studdert AJ had, on 20 August 2010, delivered a judgment on an application brought by the defendants for a stay of proceedings: see O'Reilly v Western Sussex Hospital NHS Trust [2010] NSWSC 909). 4On 21 September 2012, the Court made orders requiring the parties to serve their evidence in accordance with a designated timetable. The matter returned to court on a number of further occasions after the plaintiff had eventually complied with the Court's order to serve expert reports. That compliance included service at the time of two reports of Professor Martin Tattersall dated 31 August 2012 and 2 October 2012. 5In those reports, but in particular in the report of 2 October 2012, Professor Tattersall discussed, from the perspective of his expertise as a cancer specialist, various issues about the nature of the lesion or tumour likely to have been present in the late Dr O'Reilly's left colon in November 2003. That report made no reference at all to the Expert Witness Code of Conduct which is to be found in Schedule 7 of the UCPR. Indeed, no report of Professor Tattersall makes reference to that Code. 6Rule 31.23(3) of the UCPR provides that: "Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it." 7Both the Expert Witness Code of Conduct and this rule, and the cognate rule about giving oral evidence, rule 31.23(4) of the UCPR, are, or at the very least ought to be, very well-known to all practitioners involved in litigation in this Court. Although contained in the UCPR, which were introduced in 2005, substantially identical provisions existed for many years prior to 2005 in the Supreme Court Rules 1970. 8On 22 February 2013, when the matter was before the Court for directions and the defendants were represented by senior counsel, considerable discussion took place as to the appropriate arrangements for the hearing of the proceedings. This was necessary because it was appropriate for the Court to take some expert evidence in London and some in Australia. The issue debated was the sequence of the taking of that evidence, and in particular, whether the evidence of Professor Tattersall and an expert gastroenterologist, Dr Gavaghan, ought be heard by the Court in Sydney before, or else after, the expert evidence was taken in London. 9Senior counsel for the defendants submitted that the Court should schedule this tranche of expert evidence to be heard after the hearings in London because of, at least, the prospect that evidence relevant to their expert opinions may emerge during the London hearings. The Court accepted that submission. 10On 15 March 2013, at a further directions hearing, the Court confirmed that the hearing of the proceedings would commence in London on 7 October 2013, proceed there for a period of two weeks and then resume in Australia on 4 November 2013 for such period of time as was necessary to enable the completion of the hearing. The fact of Professor Tattersall giving evidence and the location and timing of his giving evidence was raised in the course of the directions hearings and case management hearings on a number of further occasions, including as recently as 30 October 2013. Again, the issue of Professor Tattersall's giving of evidence was discussed before the Court on 4 November 2013. 11On none of these occasions was any issue raised by either the plaintiff or the defendants about the fact that none of Professor Tattersall's reports had acknowledged and adopted the Expert Witness Code of Conduct. Nor was any suggestion made that rule 31.23 of the UCPR would be relied upon to object to the admission into evidence of those reports. 12In particular, on 4 July 2013, when senior counsel for both parties were present at the directions hearing, the question of objections to evidence was raised. At that time, it was the position that Professor Tattersall might be able to give his evidence in London. The Court was told that the parties were hoping to reach an agreement on objections, which would obviate any need for rulings. Senior counsel for the defendants added "If they are as to form, they can be dealt with as a matter of weight by the trial judge". 13After a further discussion about some possible complexities about an examiner taking evidence on commission being asked to rule on objections, the Court was assured by senior counsel for the plaintiff that both senior counsel for the defendants, and he, would "go through the statements and reduce the objections to a minimum". 14As well, during the course of that directions hearing, the attention of the parties was drawn to the provisions of s 192A of the Evidence Act 1995 which permits parties to obtain rulings on the admissibility of evidence in advance of the commencement of a hearing. No application was made by either party for a ruling under that provision in advance of the hearing. 15Against this background of intensive case management, it came as somewhat of a surprise to the Court when shortly before Professor Tattersall was to enter the witness box to give his oral evidence as the last witness to be called on the issue of liability, for the defendants to make an objection to the admission into evidence of the reports of Professor Tattersall, and to his giving any oral evidence at all in reliance on the provisions of r 31.23, his failure to include an acknowledgment of the Expert Witness Code of Conduct in his reports and his failure to adopt the Code. 16As a result of this objection, the Court granted leave to the plaintiff to file a motion seeking such relief, as was appropriate, to enable Professor Tattersall to give evidence. On 8 November 2013, I granted leave to the plaintiff to file in Court such a motion. It sought the following orders: "Pursuant to rule 31.23(3) the Court grant leave to the plaintiff to rely on the reports of Associate Professor Tattersall dated 31 August 2012, 2 October 2012, 30 April 2013 and 23 October 2013 appearing at annexures C, E, G and J to the affidavit of Courtney Poulden sworn in proceedings on 7 November 2013." 17In support of that motion, the plaintiffs relied on the affidavit of Mr Poulden of 7 November 2013. No objection was taken to that affidavit and the defendants did not seek to cross-examine Mr Poulden upon the contents of it. Accordingly, I accept the evidence which is contained in it. Mr Poulden explains that he did not draw the provision of the Expert Witness Code of Conduct to Professor Tattersall's attention. He says that his explanation for that is that it was an omission or oversight on his part. He also deposes to the fact that he has engaged Professor Tattersall to provide expert reports in a number of matters previously. He says, and I accept: "It has in the past been my invariable practice to include the Expert Witness Code of Conduct at the time of engaging an expert witness, to ask the relevant witness to acknowledge that they have read and that they agree to be bound by the code." 18In addition, the plaintiff called Professor Tattersall to give evidence. Professor Tattersall informed the Court in his evidence, which I accept, that he has given evidence in this and other courts in Australia on a number of occasions prior to this time. He says, and I accept, that he is now, and has at all relevant times to this case, been familiar with the Expert Witness Code of Conduct. He says that at the time he wrote the report of 2 October 2012 and the subsequent reports, he was aware of the Expert Witness Code of Conduct and that in writing those reports, he wrote the reports in a way which reflected his understanding of that Code of Conduct. I accept that evidence. 19The defendants did not lead any evidence on the motion. 20The motion requires me to consider and exercise a discretion which is contained in the UCPR. In so doing, I am obliged to give effect to the overriding purpose contained within s 56 of the Civil Procedure Act 2005. That overriding purpose is, "... to facilitate the just, quick and cheap resolution of the real issues in the proceedings". As well, as the trial judge, it is necessary in overseeing the conduct of this trial, that I keep in mind that the role of the trial judge is to ensure that a fair trial is had between the parties; see Hodder Rook & Associates Pty Limited v Genworth Financial Mortgage Insurance Pty Limited [2011] NSWCA 279 at [38] and [39]. 21The defendants submit that the reports of Professor Tattersall ought not be admitted, and his oral evidence not permitted because of, firstly, non-compliance with the UCPR; secondly, that notwithstanding Professor Tattersall's evidence, the Court could not be satisfied that he has in fact applied the Code in expressing his opinions; and thirdly, that there is a risk of the kind referred to by Jagot J in Ray Fitzpatrick Pty Limited v Minister for Planning [2007] NSWLEC 791 at [29]. 22This is a risk which can be described as the risk that an expert who has not prepared a report under the discipline of the applicable code of conduct, will form an opinion from which thereafter he or she would find it difficult to retreat. As her Honour says, "This risk is a fundamental problem not capable of subsequent rectification by retrospective adoption of the Expert Witness Code of Conduct." 23Without identifying each of the relevant authorities, it is clear that since Jagot J's judgment was delivered, there have been a number of occasions on which, notwithstanding the existence of that risk, expert reports which did not identify the Code and agree to adopt it, have been permitted to be tendered into evidence. 24As well, the defendants object to the admission of the report of Professor Tattersall dated 30 April 2013, on the basis that it was not served and that they did not receive it until very recently. On that question I propose in this judgment to only deal with the issue of whether or not the report should be excluded because of non-compliance with r 31.23 of the UCPR, as I have not yet heard full or satisfactory submissions about excluding that report on the basis of late service. To the extent, therefore, that I am dealing with each of the reports of Professor Tattersall, I am dealing with them on the basis of the arguments advanced on the issue of failure to adopt and acknowledge the Expert Witness Code of Conduct. 25In support of the orders being made, the plaintiff submits that, firstly, the evidence of Professor Tattersall is sufficient to persuade the Court that no substantial injustice can arise because he has failed to acknowledge and adopt the Expert Witness Code of Conduct. 26Secondly, the plaintiff submits that the failure of the expert to adopt the Code came about as a result of an omission by the plaintiff's lawyer, for which she was in no way responsible. 27Thirdly, that the defendant's conduct prior to now, and in particular the fact that Professor Tattersall's reports have been provided to the defendant's experts for comment and more recently at the request of the defendant's solicitors, Professor Tattersall participated in a joint conference with Professor Price and apparently has produced a joint report, means that the Court should take the view that the defendant's solicitors have encouraged the further involvement of Professor Tattersall, that the plaintiff's having acceded to that, and, having done so in the absence of any knowledge that any objection would be taken to his evidence, it is not now in the interests of justice that such an objection if taken, ought to be upheld. 28There are some additional factors which are relevant to note. Firstly, this objection is taken very late in the proceedings and without previous warning to the plaintiff or to the Court. Secondly, the four reports of the defendants' expert, Professor Price, and the five reports of the defendants' expert, Professor Phillips, do not refer to, acknowledge or adopt the Expert Witness Code of Conduct which is contained in schedule 7 of the UCPR. This is notwithstanding that in Professor Phillips' case he acknowledges in his report of 5 January 2011, that he received a copy of the Code from the solicitors who retained him. 29Had an objection been taken by the plaintiff to those witnesses giving evidence, I would have needed to determine that question by reference to the witnesses' positions, their expertise and the fact that each of them acknowledged a different Expert Witness Code of Conduct in their reports. That issue did not arise because the plaintiff sensibly took no objection. 30The factors which seem to me to be relevant in considering the exercise of my discretion are as follows: firstly, Professor Tattersall is an experienced expert witness who has previously given evidence in this and other courts in Australia; secondly, his evidence is, and I accept it, that in writing his report of 2 October 2012 and his subsequent reports, he had in mind the substance of the Expert Witness Code, and in particular, that he was not expressing an opinion as an expert in the role of being an advocate for one party, and that he was expressing an opinion on the basis of his independent objective opinion to be tendered in due course to the Court. 31I have no reason to doubt from Professor Tattersall's evidence that he knows of the proper role of an expert witness and has undertaken it in his reports. The exception, which is noted to the first email of 31 August 2012, is to my mind of no substance at all since that email does not in fact express any opinion relevant to any of the issues in this case, although it does contain some contextual material. 32The second matter which I take into account in the exercise of my discretion, is that the failure of Professor Tattersall to make any mention of the Expert Witness Code of Conduct can be attributed directly to the inadvertent failure of the plaintiff's lawyers to provide him with a copy of the Code and to draw his attention to it. That is a failure which was accepted without challenge by the defendants. In other words, I am not confronted with a circumstance in which the expert witness has been provided with the Code and has, in the full knowledge of it, expressly refrained from acknowledging or adopting it. 33Thirdly, the stage of this trial that has been reached has, as a matter of fact, involved interaction between Professor Tattersall and the other experts and an exchange of their views. For example, there are reports from the defendants' experts commenting on Professor Tattersall's opinions. As well, as is obvious from what I have earlier said, at the request of the solicitors for the defendants, Professor Tattersall has recently met with, at least by electronic means, Professor Price and has engaged in a professional discussion with her by way of a joint conference and a joint report has been prepared. 34Fourthly, the defendants in my view, by not raising any objection to the admissibility of Professor Tattersall's reports or his oral evidence on the basis of a failure to adopt and acknowledge the Expert Code, in the circumstances of this case and in particular having regard to the course of case management, and the course of the exchange of expert witnesses and the joint conference to which I have just referred, must be taken to have - and I should say particularly in the absence of any notification of any objection to this evidence until shortly before it was called - waived their entitlement to object to the evidence on that basis. 35Fifthly, even if I am wrong in that respect, their silence in the face of case management hearing and, in the face of the duties on parties and lawyers contained in s 56 of the Civil Procedure Act, is not to be taken as a waiver of any objection, I nevertheless am entitled to have regard to the absence of any objection until the present time as a factor in the exercise of my discretion. 36Sixthly, this case is replete with expert reports which have not adopted the Expert Witness Code of Conduct, pursuant to Schedule 7 of the UCPR. To exclude the reports of one expert on that basis would be unfair. 37Lastly, I can see absolutely no prejudice to the defendants in the circumstances of this case at the present stage in the evidence of Professor Tattersall being admitted, notwithstanding the failure to adopt the Expert Witness Code of Conduct. 38Any discretionary exercise of power must be to give effect to the overriding purpose, as stated above. As well it must be an exercise of discretion which reflects the interests of justice for both parties and the obligation of the presiding judge to ensure a fair trial. 39In this case I am persuaded to exercise my discretion to allow the admission into evidence of the reports of Professor Tattersall, notwithstanding his failure to comply with the obligation set out in r 31.23 of the UCPR and I am prepared to order that those reports be so admitted. I do so because, in light of the matters to which I have just referred, I am overwhelmingly satisfied that it is in the interests of justice for his evidence to be admitted and that I have no reason to doubt that in his reports and giving his evidence, Professor Tattersall will do so in accordance with the Expert Witness Code of Conduct. 40Accordingly, on the basis that the only objection to the reports is that they do not acknowledge and adopt the Expert Witness Code of Conduct, I would indicate that I would otherwise order within the meaning of r 31.23(3). 41However, there remains to be determined the issue of whether the absence of service of the report of 30 April 2013 should preclude the admission of that report and it will be necessary for me to hear further submissions on that question before finalising the orders with respect to that report. 42I make the following orders: (1)I order, pursuant to rule 31.23(3) and 31.23(4) of the Uniform Civil Procedure Rules 2005 that the plaintiff have leave to rely upon the reports of Professor Tattersall dated 31 August 2012, 2 October 2012 and 23 October 2013, notwithstanding that those reports do not adopt the Expert Witness Code of Conduct contained in schedule 7 of the UCPR. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2013