Expert Report Admitted Despite Lack of Personal Examination

In a civil matter, the court admitted the reports of an expert who did not examine the plaintiff, finding that the expert's opinion was still relevant and admissible based on the reviewed medical evidence.

District Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] (No 3) [2021] NSWDC 841 Hearing dates: 18-22 October 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: I admit the two reports of [NAME]. They will become Exhibit 4. Catchwords: CIVIL –EXPERT EVIDENCE - Objection by Plaintiff to admission of reports by expert who did not examine the Plaintiff. Legislation Cited: Police Regulation (Superannuation) Act 1906 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Procedural rulings Parties: Plaintiff – [NAME] Defendant – [NAME]: Counsel: [redacted] Defendant – [NAME] Solicitors: [redacted] Defendant – [NAME] ([NAME]) File Number(s): RJ00258/2019 RJ00171/2020 Publication restriction: Nil.

Judgment 1. HIS [NAME]: This is an application under Uniform Civil Procedure Rules 2005 r 31.28(4)(a). The Defendant seeks to tender two reports of [NAME], a consultant psychiatrist. The first bears date 7 October 2021 and the second bears date 18 October 2021.

2. The substantive hearing began on 18 October 0221 after I had completed calling over the Special Statutory Compensation List but only the tender of documentary evidence occurred on that day. The oral evidence did not commence until Tuesday, 19 October 2021. Shortly before the luncheon adjournment today, the Plaintiff closed his case. The Defendant now seeks to tender the two reports of [NAME] to which I have referred.

3. It is to be noted that [NAME] has never examined the Plaintiff, nor interviewed him. [NAME]'s reports are based solely on review of such medical evidence as was sent to him and his reports contain his commentary of what was sent to him. The application is opposed by the Plaintiff. It should be noted that [NAME] is not available to give evidence this week.

4. Today is the last day on which the matter is listed for hearing. The curial history of this matter ought be noted. Matter number RJ258 of 2019 was commenced by the filing of a statement of claim on 19 July 2019. I first called the matter over on 9 September 2019 noting that the Plaintiff wished to seek to add to the certificate of incapacity granted by the Police Superannuation Advisory Committee ("PSAC"), a further infirmity of Post Traumatic Stress Disorder ("PTSD"). The matter came before again on 9 December 2019 when the Plaintiff was not ready. The matter then came before me on 24 February 2020 and again I was told what I had been told on 9 September 2019. The matter was then stood over to 6 April 2020. I was not available on that day because of a COVID-19 problem and the matter was placed before [NAME]. [NAME] was told the same thing that I had been told and stood the matter over to call over to be conducted by me on 13 July 2020.

5. In the meantime, the Plaintiff filed matter number RJ171 of 2020 on 19 May 2021. That seeks to either add to the existing certificate of PSAC a further medical condition or alternatively, seeks that a fresh determination be made by the Court pursuant to s 10B(2) of the Police Regulation (Superannuation) Act 1906. Both matters came before me on 13 July 2020, 7 September 2020 and 6 October 2020. 6. 23 November 2020, when I fixed for hearing a separate issue arising from a defence pleaded by the Defendant in matter RJ171 of 2020. Although the matter had been set down for hearing for only one day, on Tuesday 24 November 2020, it became clear to me that I could not determine the separate issue without a full hearing. On that day, I revoked the order for the separate determination of the issue previously identified and set the matter down for hearing for a week commencing on 26 April 2021.

7. However, when the matter came before me on 26 February 2021, it transpired that the matters were really not ready to proceed. On 27 February 2021, I vacated the hearing dates and set the matter down for five days commencing on 18 October 2021, that is the last Monday. I made an order that the Defendant not be liable for any costs thrown away by the adjournment and gave the Defendant liberty to apply for an order for costs against the Commissioner of Police. There was a problem with the production of documents by the Commissioner of Police.

8. The matter was before me on 17 May 2021 when I ordered the Plaintiff to serve a copy of every document upon which the Plaintiff wished to rely, by 4pm on 13 August 2021. I ordered the Defendant to serve all such documents upon which it sought to rely, by 4pm on 17 September 2021. The matter came before me on 2 August 2021 when, no party indicating that he or it had any problem, I confirmed the hearing dates commencing on 18 October 2021. That was in fact the twelfth time the matter was before the Court.

9. I have been told by [NAME] from the Bar table, without any objection, that on 11 August 2021 the Plaintiff sought an extension of time from the Defendant for the service of the documents upon which he relied. The extension sought was until 20 August 2021, and the Defendant consented to that extension.

10. Notwithstanding the time limit that I had imposed and the extension graciously granted by the Defendant, the Plaintiff did not serve a report of [NAME] of 30 August 2021 until 8 September 2021, and did not serve a supplementary report of [NAME] dated 27 April 2021 until 7 October 2021.

11. On the following day, 8 October 2021 the Defendant served [NAME]'s report of 7 September 2021, and requested the Plaintiff to advise if there was any objection to the Defendant's relying upon that report. I have been told from the Bar table, again without objection, that no notice of objection was given to the Defendant, nor was there any request that [NAME] be available for cross-examination. 12. [NAME]'s second report of 18 October 2021 was served on that day; it addresses the matter raised in Dr [NAME]'s second report which was served on 7 October 2021. It was only then, that is on the day the matter was first listed for hearing, that the Plaintiff advised the Defendant that [NAME] was required for cross-examination.

13. In circumstances where the Plaintiff did not comply with my order, or indeed an extension granted by the Defendant to the order, it ill lies in the Plaintiff's mouth to object to the report of [NAME] when notice was only given of his being required on the day the matter was first listed for hearing. In any event the substance of the objection raised by the Defendant goes really to the weight, if any, to be given to [NAME]'s opinions because of what the Plaintiff submits are deficiencies in his reasoning process, or inadequate explanation for what his reasons are.

14. As I said, that goes to the weight to be given to his opinions, and whether they are to be given any weight at al. However, considering the way this case has been conducted, and its long and tortured history, and the difficulty that the Court has had in getting the matter on for trial, it appears to me that special circumstances do exist to permit the Defendant to rely on the reports of [NAME] that have been served out of time and tender those reports, albeit that the doctor is not available to give oral evidence this week.

15. Especially is that so when, if the application were refused, the Defendant would no doubt apply for an adjournment which might be difficult to resist in the circumstances I have already discussed, and that would lead to the matter being adjourned and as currently advised I could not give it a date until sometime next year, my diary for the rest of this year being almost fully committed. I accordingly admit the two reports of [NAME]. They will become Exhibit 4. 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: 14 June 2023