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The admissibility of expert reports

Newsletter 01 May 2015

A significant interlocutory application was recently heard in the NSW Supreme Court involving the admissibility of expert reports.

The defendant performed a bilateral endoscopic thoracic sympathectomy on the plaintiff on 6 February 2007. Post-operatively the plaintiff complained of severe thoracic pain, post-traumatic stress disorder, depression, anxiety, hormonal secretion and suppressed libido.

The plaintiff made no complaint that the procedure was not properly performed. The issue before the Court was what warnings should have been given in relation to the risks associated with the surgery and what of the plaintiff’s disabilities were caused by the procedure.

The defendant contested the admissibility of a number of reports served by the plaintiff.

In his judgment delivered on 8 March 2015, Harrison J ruled that a number of the plaintiff’s report were inadmissible. In doing so he referred to Makita (Aust) Pty Ltd v. Sprowles [2001] 52 NSW LR 705 where the Court held:

‘If evidence tendered an expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge; so far as the opinion is based on facts” observed by the expert, they must be identified and admissibly proved by the expert’.

Harrison J ruled that the following reports were inadmissible:

  • A professor in neurology from Boston Massachusetts as he had not examined the plaintiff nor had performed this type of surgery;
  • A Melbourne professor who was a physician medical researcher who was not a surgeon and had not examined the plaintiff;
  • An endocrinologist whose curriculum vitae did not indicate specialised knowledge in the surgical field;
  • A research neuro-scientist who was not medically trained and had not examined the plaintiff; A professor in pharmacology and therapeutics who was not medically qualified and had not examined the plaintiff;
  • A professor in psychology who was not medically qualified and had not examined the plaintiff; and
  • A chiropractor who was not medically qualified but had examined the plaintiff and whose views were not supported by scientific reasoning and method espoused in Makita v Sprowles.

This case reinforces the importance to qualify proper experts. All matters in the NSW Supreme Court are case managed through the professional negligence list. It seems most likely that defendant doctors will make similar challenges to plaintiff’s experts who have not been properly qualified or lack true expertise in the appropriate field of medicine.

Don Munro, Partner

Newsletter 01 May 2015
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