Supreme Court New South Wales Medium Neutral Citation: Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805 Hearing dates: 20 June 2017 Date of orders: 20 June 2017 Decision date: 20 June 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Orders made in relation to questions to be raised in conclave. 2. Plaintiff to pay the First and Second Defendants' costs of today's application. Catchwords: EVIDENCE – expert evidence – issues for experts in conclave – whether experts should be directed to reach their conclusions on the balance of probabilities – whether Plaintiff's evidentiary statement should be provided as assumptions the experts are to make Legislation Cited: Civil Liability Act 2002 (NSW) Category: Procedural and other rulings Parties: Mile Bogunovic (Plaintiff) Buildcorp Contracting NSW Pty Ltd (First Defendant) Hillsform Civil Contractors Pty Ltd (Second Defendant) Representation: Counsel: T Phan (Plaintiff) G Tzortzatos (First Defendant) A Bond (Second Defendant) Solicitors: NSW Compensation Lawyers (Plaintiff) Curwoods Lawyers (First Defendant) Gillis Delaney Lawyers (Second Defendant) File Number(s): 2014/353091 Judgment 1. These proceedings arise out of worksite injuries sustained by the Plaintiff on 19 November 2012. The Plaintiff is said to have suffered injuries, relevantly for this application, to his neck, his shoulders and his lower back. 2. The proceedings have reached the stage where the orthopaedic surgeons, who have all examined the Plaintiff, are to meet in conclave to prepare a joint report for the Court. 3. A significant issue in the case is the cause of the Plaintiff's ongoing disabilities and the injuries that he sustained in the accident. The Plaintiff, it appears, wishes to assert that the Plaintiff's present condition with those disabilities arises from the accident, whereas the Defendants say that at least to some extent the disabilities and the Plaintiff's present condition are largely or wholly as a result of degenerative changes that were occurring within those particular injured portions of his body. 4. The parties have agreed on eight questions for those experts to answer, and those questions seem to me to be entirely appropriate questions to ask doctors in a conclave. The dispute between the parties has arisen because the Plaintiff wishes, first, to suggest the approach the experts should take to the opinion they express in the joint report and, secondly, to provide the experts with assumptions which are largely taken from the evidentiary statement of the Plaintiff filed 19 April 2016. 5. The first issue arises in this way. The Plaintiff wishes to preface the questions to be answered by the experts with this direction: "Your opinions in respect of the above are to be given on the balance of probabilities, that is, something is more probable than not. Scientific and medical certainty is not required." 1. The barrister appearing for the Plaintiff presses for the inclusion of that statement. She says that counsel who is briefed in the matter considers that it is appropriate the experts should approach their answers bearing that direction in mind. 2. I do not agree. Findings in a civil case are made on the balance of probabilities by a court. A medical expert expresses an opinion, approaching matters, including causation, from a medical perspective. There is a difference, as is well known and is referred to in authorities, between medical causation and causation as the law understands it, whether under s 5D of the Civil Liability Act 2002 (NSW) or at common law. 3. The point is that experts are not required to give their opinions based on the balance of probabilities, nor are they to be concerned with scientific and medical certainty. They give their expert opinion based on their medical knowledge and experience and in the light of the information which has been provided to them by the Plaintiff and their findings on any examination. The Court has regard to those opinions and will have to determine itself whether the Plaintiff proves on the balance of probabilities injuries, disabilities and incapacities arising from those injuries and disabilities. I do not consider it is appropriate that the experts should be directed to approach the matter in the way the Court is obliged to do. 4. The second issue concerns the assumptions on which the experts are to form their opinion. As I have mentioned, each of these experts has examined the Plaintiff and taken a history from him. That history may or may not accord with the material which is contained in the evidentiary statement. The fact that there might be differences between them is frequently a cause for cross-examination at any hearing. 5. It does not seem appropriate to me that the experts should now be required to consider a history that the Plaintiff intends to put forward to the Court, where that history may differ from the history that has been given to those doctors. The doctors are now not in a position where they can ask questions of the Plaintiff to clarify matters or to make them consistent with what they may have been told when they examined him. 6. In my opinion, the experts should provide their joint report based on their own examination of the Plaintiff and their own assessments of the material that they have seen to date. The assumptions contained in the letter of 16 June 2017 from the Plaintiff's solicitors to Curwoods and the statement of the Plaintiff filed 19 April 2016 should not go to the experts in the conclave. 7. The Plaintiff has been unsuccessful in having those matters put forward to the experts in conclave. The costs of today's application should be paid by the Plaintiff to the Defendants. ********** 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: 20 June 2017