Supreme Court New South Wales

• Medium Neutral Citation: Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304
• Hearing dates: 24-27 February 2014; 17-21 March 2014
• Decision date: 21 March 2014
• Jurisdiction: Common Law
• Before: Hall J

Decision

(1)The defendant's application to exclude from evidence the joint reports of the four conclaves referred to in [16] from evidence, is refused.

(2)I will hear the parties on the question of costs.

• Catchwords: PRACTICE AND PROCEDURE - Expert evidence - Joint reports of experts - Admissibility of joint reports - Whether reasons are required for agreement between experts - Whether conclave failed to identify the material it relied upon - Whether consideration of extraneous material by the conclave constituted an irrelevant consideration - Whether experts are required to be provided with a joint statement of assumptions - Whether the questions asked of the conclave were drafted in terms that addressed relevant issues and matters appropriate for consideration by experts - Whether the joint reports are inconsistent with the common law "statement of reasoning" rule - Whether the joint reports are inconsistent with the Makita principle - Application of s 79 of the Evidence Act to joint reports of experts - Whether Court should exercise discretion to exclude the joint reports under s 135 of the Evidence Act
• Legislation Cited: Civil Procedure Act 2005; Evidence Act 1995; Uniform Civil Procedure Rules 2005
• Cases Cited: Ainsworth v Burden [2005] NSWCA 174; Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002; Collins v Sydney Ports Corporation [2012] NSWSC 115; Dasreef Pty Ltd v Hawchar [2011] HCA 21, (2011) 243 CLR 588; Gillett v Robinson [2011] NSWSC 1143; Goddard v Central Coast Health Network [2013] NSWSC 1932; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Re GHI (a Protected Person) [2005] NSWCA 466; Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392; X v Sydney Children's Hospitals Specialty Network (No 4) [2011] NSWSC 1310; X v Sydney Children's Hospitals Specialty Network (No 5) [2011] NSWSC 1351; X v Sydney Children's Hospitals Specialty Network (No 6) [2011] NSWSC 1353
• Texts Cited: Australian Law Reform Commission Report 102, "Uniform Evidence Law" (2006); Judicial Review of Administrative Action, Aaronson, Dyer & Groves (LawBook, 3rd ed, 1973); Ritchie's Uniform Civil Procedure NSW
• Category: Interlocutory applications
• Parties: Ian Barry Campton (Plaintiff); Centennial Newstan Pty Ltd (Defendant)
• Representation: Counsel: B Dooley SC; P O'Rourke (Plaintiff); M Joseph SC; D Stanton (Defendant); Solicitors: Whitelaw McDonald (Plaintiff); Sparke Helmore (Defendant)
• File Number(s): 2012/70316

Judgment

Proceedings

1 These proceedings were commenced by Statement of Claim filed on 2 March 2012. An Amended Statement of Claim was filed on 7 March 2012.

2 The plaintiff seeks damages for alleged negligence arising from a workplace accident on or about 1 July 2010. At all material times the plaintiff was employed by the defendant, Centennial Newstan Pty Ltd, as an underground mine deputy.

3 On or about 1 July 2010 he was a passenger in a PJB vehicle being driven by a fellow employee, Mr Fletcher. It is alleged that this vehicle was being driven at an excessive speed over a very rough road, when it struck a hole in the road, causing the plaintiff to bounce heavily in the vehicle.

4 The plaintiff alleges that he sustained spinal injuries to the lumbar area of his spine, necessitating two operations, undertaken by Dr Ferch, neurosurgeon.

5 The plaintiff has not returned to any form of remunerative employment since the accident, with the exception of approximately two weeks spent working for the defendant on light duties immediately following the accident.

6 The plaintiff's claim is for damages, inter alia, for past and future economic loss, and past and future treatment.

Medical Reports

7 On 24 February 2014 the plaintiff tendered a bundle of documents entitled "Plaintiff's Medical Reports" (Exhibit "A"). This bundle contains, amongst others, the reports of the plaintiff's treating doctors, including in particular those of his treating general practitioner, Dr Whittaker, and his neurosurgeon/spinal surgeon, Dr Ferch. Exhibit "A" includes:

(1) Reports of Dr Damien Whittaker dated:

(a) 6 August 2010

(b) 28 October 2010

(c) 5 September 2011

(d) 20 December 2011

(e) 16 May 2012

(f) 12 August 2013

(g) 5 September 2013

(h) 16 February 2014

(2) Report of Dr M Edger dated 23 August 2010.

(3) Reports of Dr R Ferch dated:

(a) 5 August 2010

(b) 7 September 2010

(c) 20 September 2010

(d) 26 October 2010

(e) 29 March 2011

(f) 28 April 2011

(g) 20 March 2012

(h) 5 April 2012

(i) 28 June 2012

(j) 5 July 2012

(k) 25 July 2012

(l) 3 August 2012

(m) 13 November 2012

(n) 14 March 2013

(o) 27 March 2013

(p) 15 April 2013

(q) 20 August 2013

(r) 21 May 2013

(s) 9 July 2013

(4) Reports of Dr John MF Grant AO OBE, Consultant Neurosurgeon dated:

(a) 3 June 2011

(b) 26 April 2012

(c) 29 August 2012

(d) 29 November 2012

(5) Reports of Dr Barry C Bracken (who participated in the orthopaedic conclave) dated:

(a) 27 July 2011

(b) 3 May 2013

(c) 16 August 2013

(d) 28 August 2013

(e) 13 September 2013

(6) Reports of Dr AG Hopcroft (who participated in the orthopaedic and diabetes conclaves) dated:

(a) 1 September 2011

(b) 4 April 2013

(c) 22 July 2013

(d) 30 August 2013

(e) 24 October 2013

8 Pursuant to directions made on 10 March 2014, the defendant has provided a copy of the medical reports upon which they propose to rely, namely:

(1) Dr FJ Harvey, 30 October 2012 (x2)

(2) Dr Harvey, 26 November 2012 (x2)

(3) Dr Leonard Lee, Consultant Medico-Legal Psychiatrist, 28 August 2013

(4) Dr Harvey, 16 September 2013 (x2)

(5) Dr Ivan Thomas Lorentz, Consultant Neurologist, 16 September 2013

(6) Dr Lorentz, 19 September 2013

(7) Dr Harvey, 20 September 2013

(8) Dr Myles RJ Coolican, Orthopaedic Surgeon, 20 September 2013

(9) Dr Coolican, 11 October 2013

(10) Dr Harvey, 14 October 2013

(11) Dr Harvey, 18 October 2013

(12) Dr Coolican, 24 October 2013

(13) Dr Coolican, 9 January 2014

(14) Dr Coolican, 4 February 2014

Part-Heard Hearing

9 The four-day hearing commenced in East Maitland on 24 February 2014. The hearing was then adjourned part-heard to Sydney.

10 The plaintiff was examined in chief and cross-examined on 24 February 2014, 25 February 2014, and 26 February 2014.

11 In addition, Dr Whittaker and Dr Ferch were called for cross-examination. Their evidence was heard on 27 February 2014.

12 Evidence of Mr Rodney Grant Howell, mine-worker, in relation to the subject accident, was taken on 26 February 2014.

13 The proceedings were subsequently set down for directions on 10 March 2014, and the hearing was adjourned until 17 March 2014 in Sydney.

History of the Conclave Reports

14 On 23 July 2013 Garling J made orders as follows:

"4. Direct that the evidence of the liability experts take place concurrently.

5. Order the liability experts to meet and prepare a joint report setting out issues agreed and issues disagreed by 13/9/13.

6. Order that the plaintiff is to serve all further expert medical evidence upon which he proposes to rely by 4pm 30/8/13.

7. Order the defendant to serve all expert medical evidence upon which it proposes to rely by 4pm 20/9/13.

8. Direct that the medical experts are to give their evidence concurrently.

9. Direct that the medical experts are to meet in joint conference and prepare a joint report setting out all matters upon which they are agreed and matters upon which they are disagreed, such joint report to be provided to the parties and to the Court by 4pm 11/10/13..."

15 Subsequent orders were made by Registrar Bradford on 28 January 2014 relating to the conduct of the conclave, including:

(1) An order that Dr Whittaker is to attend the conclave.

(2) The defendant is to file and serve a statement of issues in dispute by 3/02/2014.

(3) As to the diabetes conclave:

(a) The plaintiff's questions as set out in letter dated 19/12/2013 to go to conclave as well as defendant's question for the Diabetes conclave being pages 16-20 attached to Annexure "G" to Mr Grimes affidavit.

(4) As to the orthopaedic conclave:

(a) The plaintiff's questions are to be sent to the conclave, as set out in Annexure "C" to the affidavit of Mr Grimes.

(b) In addition to the documents to be provided to the doctors on the orthopaedic conclave, a joint memorandum of issues in dispute is to be provided by 3 February 2014.

(c) Defendant question not allowed.

(5) As to the vocational conclave:

(a) The plaintiff's questions are to be sent to the conclave in accordance with Annexure "D" to the affidavit of Mr Grimes.

(b) The defendant's question not allowed.

16 In total, there were four conclaves:

(1) An orthopaedic conclave, convened on 7 February 2014 and attended by Dr Bracken, Dr Harvey, Dr Hopcroft, and Dr Millons.

(2) A diabetes conclave, convened on 6 February 2014 and attended by Dr Hopcroft, Dr Lorentz, and Dr Whittaker.

(3) An occupational therapists conclave, convened on 17 February 2014 and attended by Ms Ravagnani and Ms Hughes.

(4) A vocational conclave, convened on 7 February 2014 and attended by Mr Ravagnani and Mr Bass.

17 Each conclave produced a separate joint expert report. Each of these reports, together with associated correspondence, were tendered on 24 February 2014 and comprise the documents in Exhibit "B". They were tendered subject to the issue of admissibility being finally determined on a subsequent date. I will refer to the reports collectively as the "conclave reports".

18 At a directions hearing on 21 February 2014 Mr Joseph SC for the defendant indicated that he would object to the admissibility of the conclave reports.

19 On 27 February 2014, I directed the parties to provide written submissions on this issue.

20 Mr Joseph and Mr Stanton provided the "Defendant's Submissions on Orthopaedic Conclave Report" dated 5 March 2014 ("Defendant's Submissions"). Mr Dooley SC and Mr O'Rourke provided the "Plaintiff's Outline of Submissions in Respect of Admissibility of Conclave Reports" dated 4 March 2014 ("Plaintiff's Submissions").

21 On 17 March 2014, Mr Joseph referred to the fact that since preparing his written submissions, he had become aware of the judgments in the following cases: X v Sydney Children's Hospitals Specialty Network (No 4) [2011] NSWSC 1310, (No 5) [2011] NSWSC 1351, (No 6) [2011] NSWSC 1353; Collins v Sydney Ports Corporation [2012] NSWSC 115; Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392 and Goddard v Central Coast Health Network [2013] NSWSC 1932.

22 The transcript records:

"Mr Joseph submitted that insofar as the rules sought to avoid those fundamental rights in the adversarial system, the rules should be disregarded or ignored and that the rules were therefore arguably ultra vires of the Court to bypass ss 55 and 56 and common law associated with those decisions. He referred his Honour to the case of Makita": T521, 17 March 2014.

23 Mr Joseph did not, however, analyse the reasons for the decisions referred to above, or modify or withdraw any of the submissions advanced on behalf of the defendant in its written submissions referred to in [20] above.

24 The contents of these submissions will be addressed below.

Relevant Legislative Provisions

(a) Joint Expert Reports

25 The relevant rules relating to conclaves and joint expert reports are found in UCPR Pt 31, Division 2, "Provisions Applicable to Expert Evidence Generally", in particular UCPR 31.24-31.26.

26 Rule 31.17 sets out the main purposes of the Division, which include:

"(a) to ensure that the court has control over the giving of expert evidence,

(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings..."

27 The provisions of sub-rules (a), (b) and (c) are of particular importance to the defendant's application to exclude the conclave reports and to the medical evidence more generally in these proceedings.

28 Under r 31.24(1), the Court is empowered to direct expert witnesses to confer and

"(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

"(d) to base any joint report on specified facts or assumptions of fact".

29 Uniform Civil Procedure Rule 31.26(2) requires any joint report subsequently prepared by experts must specify matters agreed and matters not agreed and the reasons for any disagreement.

30 Uniform Civil Procedure Rule 31.26(3) provides, "The joint report may be tendered at the trial as evidence of any matters agreed". However, the report must still be admitted into evidence "in the ordinary way": Practice Note SC Gen 11, clause 34.

31 Uniform Civil Procedure Rule 31.26(4) provides:

"In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court."

32 Uniform Civil Procedure Rule 31.26(5) also provides:

"Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report."

(b) The Practice Notes

33 The Practice Notes also offer guidance on concurrent evidence and the preparation of joint expert reports.

34 Practice Note SC CL 5 relates to expert evidence, and states that:

"32. The Court is concerned about the number of experts often expected to give evidence in personal injury cases. The practice of having a large number of experts qualified, both medical and otherwise, whose opinions may be overlapping and whose reports either are not used or are of little assistance to the Court when tendered, is costly, time consuming and productive of delay."

35 Practice Note SC CL 5 provides that "all expert evidence will be given concurrently unless there is a single expert appointed or the Court grants leave for expert evidence to be given in an alternate manner": clause 37.

36 Practice Note SC Gen 11 is entitled "Joint Conferences of Expert Witnesses".

37 Clause 5 of Practice Note SC Gen 11 states that the objectives of a joint conference of experts include the following:

(1) The just, quick and cost effective disposal of the proceedings;

(2) The identification and narrowing of issues in the proceedings, given the joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;

(3) The consequential shortening of the trial and enhanced prospects of settlement;

(4) Apprising the Court of the issues for determination;

(5) Binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial;

(6) Avoiding or reducing the need for experts to attend court to give evidence.

38 This Practice Note must be provided to the experts (clause 10), and instructs the experts as to the requirements of their joint report, specifically:

"25. Pursuant to UCPR Rule 31.25 and paragraph 4 of the Code, the report should specify matters agreed and matters not agreed and the reasons for non agreement.

...

28. The report should be set out in numbered paragraphs and should be divided into the following sections:

· statement of agreed opinion in respect of each matter calling for report;

· statement of matters not agreed between experts with short reasons why agreement has not been reached;

· statement in respect of which no opinions could be given e.g. issues involving credibility of testimony;

· any suggestion by the participating experts as to any other matter which they believe could usefully be submitted to them for their opinion; and

· disclosure of any circumstances by reason of which an expert may be unable to give impartial consideration to the matter."

39 Practice Note SC Gen 11 foreshadows that a joint expert may be cross-examined at a trial if an expert seeks to depart from what was agreed: clause 5.

Submissions

The Respective Contentions on Behalf of the Parties

40 Mr Joseph submitted that "given all the limitations concerning the conclave, the most effective way forward is the [sic] have concurrent evidence on all expert matters, and disregard the conclave reports": Defendant's Submissions at p3, [12].

41 As to the question of the admissibility of the conclave reports generally, Mr Joseph's submissions may be summarised as follows:

(1) The experts were not provided with a joint statement of assumptions, apparently contrary to clause 10 of Practice Note SC Gen 11.

(2) The joint reports did not contain an acknowledgement that the experts had read and agreed to be bound by the Expert Witness Code of Conduct.

(3) The questions asked of the conclave were too broad, which in turn resulted in vague and/or meaningless answers.

(4) The answers provided by the conclave contained only opinions, not reasons.

(5) The conclave failed to identify what it relied upon when giving its opinions.

(6) The conclave considered extraneous material, which amounted to an irrelevant consideration.

(7) Given the credit of the plaintiff has been so clearly challenged, as has his conflicting histories given to doctors, the strength of any opinion must be tested against this issue by concurrent evidence.

42 Mr Joseph also made submissions relating to the admissibility of each of the conclave reports specifically.

43 Mr Dooley submitted the Court should direct that all parties be directed to the conclave evidence, and that no further medical evidence be taken orally: Plaintiff's Submissions at [71].

44 In support, Mr Dooley noted the following matters:

"2. Principles behind the requirement for full exposition of thought process and reliance on expertise include:

(a) Court may not be able to understand opinions so as to decide the weight to accord it.

(b) Court not able to assess whether it corresponds to facts which the Court finds at the end of trial.

(c) Court will not be able to assess whether opinion is one wholly or substantially based on expert's knowledge.

(d) Unacceptable difficulties for cross-examiner, who should not have to perform in the dark or engage in a "task of teasing out in cross-examination all the circumstances witness had in mind".

(e) Cross-examining party not to be left in a disadvantage in deciding whether and how to meet the evidence.

3. Bearing this in mind, the approach to the joint reports should be properly viewed in the following circumstances:

(a) To look at the joint report in the context of the expert's individual reports each of the doctors have prepared in relation to the matter.

(b) That the questions posed to the doctors are those which were determined by order of the court after argument by both parties.

(c) That there is no substantial difference in the opinion of all the doctors as to the cause of injury, the disabling effect of injury and incapacity (except to extent).

4. Each of the doctors has an accurate history of injury.

5. Thereafter the doctors have been provided with a history of treatment and complaints which is entirely uncontroversial and unaffected by any of the evidence to date.

6. In the determination of final diagnosis, each of the doctors go through a similar process.

7. Dr Hopcroft in his report of 1 September 2011 (p102-106) sets out the history, examination, a review of the radiological information and opines;

'This patient has suffered a significant aggravation to a low grade pre-existent asymptomatic lumbar spondylitic condition by way of work related injury in which he incurred acute wedge compression fracturing of L2 and L3 with narrowing of the L2/3 disc, and L4/5 disc protrusion to the left with left sided sciatica. Those injuries are entirely consistent with the mechanism of the injury.'

8. Dr Bracken in his report of 27 July 2011 goes through a similar process set out at p5 (Exhibit A p100) and in addition in his report of 16 August 2013 at p4 (Exhibit A p153) confirming that the plaintiff not only aggravated and accelerated degenerative changes at multi levels in his low back but also caused a disc prolapse at the left side of the L4/5 with conduction defect at L5 nerve root. The doctor thereafter sets out the surgical history.

9. Dr Harvey in his report of 16 September 2013 goes through the history until post fusion and p6.8 sets out the effect of the spinal fusion but does not set it out in the same detail as Drs Bracken and Hopcroft; although in his report of 30 October 2012 at p7 he sets out his views on causation.

...

28. The factual basis of each of the experts' reports has been established.

29. In the circumstances of this case, the factual basis of all the medical reports is accepted and remains unchallenged.

30. The mechanism of the injury remains unchallenged.

31. The nature and extent of disability remains unchallenged.

32. The only differential the court may need to consider is whether it should be properly defined as a 'structural injury' as distinct from 'aggravation of degenerative changes'."

(a) Failure to Provide a Joint Statement of Assumptions

45 UCPR r 31.18 defines an "expert's report" as:

"...a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based".

46 Mr Joseph submitted this requirement was not complied with, by virtue of the joint experts not being provided with a joint statement of assumptions to be made. It is submitted this is contrary to clause 10 of Practice Note SC Gen 11.

47 However, clause 10 relevantly provides:

"The materials to be provided to each of the participating experts should include...relevant witness statements or, preferably, a joint statement of the assumptions to be made by the experts, including any competing assumptions to be made by them in the alternative (which should be specified clearly as such)" (emphasis added).

48 In these proceedings, the plaintiff's three evidentiary statements were provided to the joint experts, in compliance with the requirements of clause 10.

49 It should also be noted that in respect of the orthopaedic conclave, the experts were directly asked to consider the plaintiff's evidentiary statements in question 5.

(b) Questions Asked of the Conclave

50 Mr Joseph argued that the questions asked of the conclave were "open ended, non specific and lacking with any precision": Defendant's Submissions at p3, [1].

51 It should be noted, however, that despite the defendant objecting to the questions, all questions were submitted to the conclaves, following argument before Registrar Bradford, pursuant to the orders made by the Registrar.

52 In light of the issues in the proceedings, I consider that the questions were drafted in terms that addressed relevant issues and matters appropriate for consideration by the experts.

(c) Failure to Provide Reasons

53 Mr Joseph submitted that the joint experts failed to provide reasons for their agreement and/or disagreement in their report, and instead, simply stated their opinions: Defendant's Submissions at p4, [6]. This, it is argued, is contrary to s 79 of the Evidence Act, the common law "statement of reasoning" rule, and the Makita principle: Defendant's Submissions at p2, [6(d)].

54 With regard to question 4, Mr Dooley noted that "all the experts agree that the nature and reasons for their disagreement is the actual definition of the baseline pathology. This clearly identifies their reasoning process": Plaintiff's Submissions at [15].

55 Mr Dooley also noted in relation to question 5 that all experts agreed on the need for a spinal fusion, and that "the nature of this is both set out in the reports and set out in the joint expert report": Plaintiff's Submissions at [17].

56 Mr Dooley submitted that in relation to question 6, which relates to the plaintiff's work capacity, each of the doctors "set out a significant reasoning process and their agreement or disagreement": Plaintiff's Submissions at [18].

(d) Failure to Identify the Material Relied upon by the Conclave

57 Mr Joseph relied upon what was described as an apparent failure by the experts to identify the material upon which they rely.

58 Mr Joseph observed:

"Quite unfairly the conclave was given a massive amount of material, without any assistance as to the relevant parts for consideration of any question asked of it. Absent this, the Court would be speculating whether or not the conclave considered the material provided, even though it states the documents were provided to 'assist' in its answer to question 1": Defendant's Submissions at p2, [7] (emphasis added).

59 In Mr Joseph's submission, it was contended that this was:

"compounded when the conclave considers fitness for work, where they seem to form the opinion on what they saw on their examinations...without consideration of any "improvement" or otherwise as revealed in the plaintiff's statements": Defendant's Submissions at p3, [9].

60 In response, Mr Dooley relied upon the fact that the experts set out in question 1 all the material upon which they relied: Plaintiff's Submissions at [10].

61 He further submitted that the conclave was not required to have to set out each document to which it had recourse. He submitted: "It is sufficient if they set out in question 1 the material they have been provided with": Plaintiff's Submissions at [37].

(e) Consideration of Extraneous Material

62 Mr Joseph argued that the transcript of the conclave indicates that matters beyond the material referred to in answer to question 1 was provided and considered in the conclave, including Dr Hopcroft mentioning the result of the diabetes conclave and its views, as well as his opinions of Dr Whittaker: Defendant's Submissions at p3. Mr Joseph raised concerns about how Dr Hopcroft's opinion on Dr Whittaker may have impacted the other experts. Additionally, there was the DVD, which had only been seen by Dr Harvey prior to the conclave: Defendant's Submissions at p5, [17].

63 Mr Joseph's submission was that these are all irrelevant considerations.

64 Mr Dooley responded by submitting that Mr Joseph had failed to identify the way in which the consideration of extraneous material is relevant to, or affected, the outcome: Plaintiff's Submissions at [39].

65 Mr Dooley also submits that "the issue of diabetes goes to the possible alternative diagnosis for the cause of the foot drop, loss of feeling in the thighs and left toe. It is appropriate that diabetes be ruled out, which it was": Plaintiff's Submissions at [39].

66 I will return to the question as to whether the transcript of the conclave may be referred to in these proceedings.

(f) Credit of the Plaintiff

67 Mr Joseph argued that:

"...given that the credit of the plaintiff has been so clearly challenged, as has his conflicting histories of complaints to doctors, the strength of any opinion must be tested against this issue by concurrent evidence": Defendant's Submissions, p3 at [11].

68 Conversely, Mr Dooley submitted that after two and a half days of cross-examination of the plaintiff, "there has been no relevant credit issue that has been raised": at [38].

69 I note at this point that clause 19 of Practice Note SC Gen 11 states that:

"The experts should accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer."

Consideration

70 An application to exclude the joint expert report requires consideration of the following matters:

(1) The provisions of the Civil Procedure Act 2005, the Evidence Act 1995, and the Uniform Civil Procedure Rules 2005 relating to expert evidence and joint reports.

(2) The relevant principles and approach to be observed when applying these provisions.

(3) The issues arising in the proceedings, in this case the assessment of damages.

(4) The exercise of the discretion to exclude evidence under s 135 of the Evidence Act, and whether this discretion may or should be exercised to exclude the joint expert reports.

71 These matters will be considered below.

(i) Relevant Provisions and Applicable Principles

72 The defendant's submission was that the conclave reports, including in particular, the joint orthopaedic report, infringe the common law statement of the reasoning rule in Dasreef Pty Ltd v Hawchar [2011] HCA 21, (2011) 243 CLR 588 ("Dasreef") and s 79 of the Evidence Act. This submission was developed without reference to case law authorities that have analysed the conclave/joint expert report provisions referred to above.

73 It was Mr Joseph's submission that the conclave reports do not disclose the basis and/or reasons for the joint opinions expressed in them. Mr Joseph sought to support this submission by reliance upon s 79 of the Evidence Act.

74 As discussed below, the submissions relied upon by the defendant are to be considered by reference to the broader operation and the provisions of the Civil Procedure Act, Evidence Act, and Uniform Civil Procedure Rules.

75 The interaction between those provisions has been recently considered and analysed by this Court (her Honour Adamson J) in X v Sydney Children's Hospitals Specialty Network (No 5) [2011] NSWSC 1351.

76 In that case, the plaintiff made an application that a joint report prepared by the relevant experts regarding breach of duty following a joint conference ought not to be admitted into evidence. The plaintiff's application was rejected.

77 In determining the application, a number of issues were considered and determined by her Honour, including, in particular:

(1) Alleged inconsistencies between the joint report and the common law "statement of reasoning" rule.

(2) Alleged inconsistencies between the joint report and the "Makita principle".

(3) The requirements of natural justice.

(ii) Common Law Statement of Reasoning Rule

78 In Dasreef, Heydon J stated that s 79 of the Evidence Act left the statement of reasoning rule intact and, accordingly, an expert's report which did not reveal the expert's reasoning would not be admissible under s 79, even though the opinion fell within the specialised knowledge of the expert: at [129]-[130].

79 Adamson J, following consideration of the High Court's judgment in Dasreef, observed:

"...I consider that UCPR 31.26(3) and (4) are not invalid in so far as they provide that experts need not provide reasons for agreement. In any event, to the extent to which s 79 applies, I do not consider that it excludes a report prepared in accordance with the UCPR, notwithstanding that no reasons for agreement are required. The joint report is authorised by the UCPR and there is no relevant inconsistency by reference to which UCPR 31.26(3) and (4) would be rendered invalid. The common law rule can be abrogated by statute. Even though Heydon J found that it had not been abrogated by s 79 of the Evidence Act , I consider that it has been, to the limited extent described above, in respect of joint expert reports prepared in accordance with the UCPR": at [35] (emphasis added).

80 Her Honour in so determining the operation of the joint expert report provisions, relied upon the following matters:

(1) The statement of reasoning rule must be read in the context of the Civil Procedure Act, Evidence Act, and Uniform Civil Procedure Rules.

(2) The statement of reasoning rule is excluded by UCPR 31.24(1)(c) and 31.26(2) because these rules plainly contemplate that experts are not required to give reasons where there is agreement.

(3) Section 190(3) of the Evidence Act provides that a court in a civil proceeding may order that one or more of the provisions in s 190(1) (which includes s 79) do not apply in relation to evidence if relevantly, the application of those provisions would cause of involve unnecessary expense or delay.

(4) The requirements of s 56 of the Civil Procedure Act.

(5) The objectives of joint conferences, as contained in clause 5 of Practice Note SC Gen 11.

81 It was argued for the defendant in that case:

"...the reports are prepared under the time pressure of the court system and also of the experts themselves, who can be expected to have other professional commitments. To require reasons to be given for agreement would not only be expensive and time-consuming but it might have the tendency to inhibit the process, and perhaps to deter participation by experts": at [33].

82 This observation finds support in the reasons of Harrison J in Gillett v Robinson [2011] NSWSC 1143, wherein his Honour stated:

"...In any event, the experts are not required to give reasons in circumstances where they agree. This seems to be apparent from UCPR 31.26(2) indicating that a joint report "must specify matters agreed and matters not agreed and the reasons for any disagreement": at [45].

83 Further, with regard to r 31.26, Ritchie's Uniform Civil Procedure NSW notes that:

"...the rule probably assumes that the experts statement of agreement is in fact a conclusion based on specialised knowledge for the purposes of s 79 of the Evidence Act, and for that reason dispenses with any additional requirement that their reasoning process be expressly articulated in the joint report": at [31.26.10].

(iii) The Makita Principle

84 The Makita principle was articulated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705:

"In short, if evidence tendered as 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, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded": at 744.

85 In X v Sydney Children's Hospitals Specialty Network (No 5), the defendant submitted that the joint reports were nonetheless admissible for the reasons outlined in respect of the common law statement of reasons rule. In the alternative, it was submitted that the requirements of Makita were satisfied when the expert reports and the joint reports are read together.

86 Although Adamson J did not consider it necessary to determine the alternative argument by virtue of her Honour's reasons in respect of the submissions on the common law statement of reasons rule, her Honour observed:

"Mr Kirk emphasised that the First and Second Joint Reports were produced in the context of exchange of medical reports and following agreement of the questions to be posed of the experts in the joint conferences. He submitted that the experts, in the joint conferences, discussed the questions with each other to seek to find agreement. That the agreement may be recorded in a simple one-word answer does not make it devoid of reasons because the answer is to be seen in the context of the prior reports. Mr Kirk submitted that one can infer that the agreement reflects the reasons of the expert or experts whose original reports contended for the answer which was ultimately agreed to be the correct one. I consider there to be significant force in the alternative argument": at [55]-[56].

(iv) The Requirement for Natural Justice

87 With regard to the requirements for natural justice, Adamson J considered that UCPR r 31.24 or r 31.26 do not "involve any material abrogation of the requirements of natural justice": at [40].

88 In this respect, her Honour considered it to follow that "experts are not to be constrained by the contents of their reports when participating in a discussion in a joint conference": at [41].

Discretion to Exclude Evidence Under s 135 of the Evidence Act

89 Section 135 of the Evidence Act confers a general discretion on courts to refuse to admit evidence if its probative value is substantially outweighed by the danger the evidence might:

(1) Be unfairly prejudicial to a party; or

(2) Be misleading or confusing; or

(3) Cause or result in undue waste of time.

90 Alternatively, if there is a risk of the evidence being unfairly prejudicial or misleading or confusing, the court is also empowered to limit the use of that evidence: s 136.

91 Joint expert reports are liable to exclusion under s 135: Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002 at [3] (per Black J).

92 I do not consider any basis at all has been established that would properly require the exercise of the discretion under s 135 to exclude the conclave reports.

93 Those joint reports directly assist the court in its mandatory obligations under s 56 of the Civil Procedure Act, as well as upholding one of the purposes of UCPR Division 2, namely: "to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings": UCPR r 31.17(a). In these proceedings the conclave reports express agreement between specified members of the conclaves and, as required by UCPR r 31.26(2), identify matters of disagreement. In those respects the joint reports achieve several of the "purposes" expressed in UCPR, r 31.17.

94 With regard to whether the conclave reports could be considered unfairly prejudicial to the defendant, they are not, of course, "unfair" merely because one or more may tend to damage the case of a party or support the case of an opponent: Ainsworth v Burden [2005] NSWCA 174.

95 Section 135, as explained by the Australian Law Reform Commission, is directed towards "whether there is a real risk that the evidence will be misused", or "the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis ie on a basis logically unconnected with the issues in the case": ALRC Report 102, "Uniform Evidence Law" (2006), [16.24].

96 In considering whether the evidence could be "misleading or confusing" so as to warrant exclusion, the following observation was made by Campbell J in Re GHI (a Protected Person) [2005] NSWCA 466:

"As to section 135(b), there is something bizarre in submitting to a judge sitting alone that he or she should reject evidence on the ground that it might mislead or confuse him or her. I propose to trust myself, so far as that is concerned": at [8].

97 In fact, Adamson J in X v Sydney Children's Hospitals Specialty Network (No 5) found there to be "considerable force" in the submission that far from it being unfair to admit the conclave report:

"...it would be unfair to reject it, in circumstances where the Court proposed to admit the individual reports of the experts who had participated in the joint conferences, since on several occasions consensus had been reached in the joint conference which would not be apparent from reading the individual reports which preceded the joint conferences...I accept that it would be potentially misleading to admit evidence which reflected an expert's historical view, which had changed in the light of discussion which had been not only authorised and agreed to by the parties, but also mandated by the Court": at [65].

98 Her Honour proceeded to consider that, with regard to whether the admission of the report would result in an undue waste of time:

"Far from saving time, what the Plaintiff proposed would not only consume substantially greater court time but it would also set at nought the time consuming and expensive process in which the parties have engaged to get to the point of the preparation and finalisation of the [report]": at [68].

99 On the same basis, and for the same reasons, I consider it would not at all be unfairly prejudicial to the defendant to admit the conclave reports.

100 Additionally, I note that the defendant has had the benefit of cross-examining both treating doctors, Dr Whittaker and Dr Ferch, and as well as cross-examining Dr Hopcroft and Dr Bracken and adducing further evidence from Dr Harvey during concurrent evidence taken on 19 March 2014 and 21 March 2014.

101 Accordingly, this is not a case which, as the evidence presently stands, would require the exercise of discretion to exclude the conclave reports.

The Individual Joint Expert Reports

(1) Orthopaedic Conclave

(a) Submissions on the Orthopaedic Conclave

102 Mr Joseph noted there is no evidence that the conclave considered the issues of the pre-existing right ankle and left knee disabilities: Defendant's Submissions at p5, [20].

103 Further, he submitted that questions 3, 4, 7 and 8 do not identify any specific history, symptomatology, point of time, or complaints. As a result of this, it is argued, the court will be unable to identify the assumed facts upon which the answer depends: Defendant's Submissions at p4, [7].

104 In response, Mr Dooley's submission was that question 3 required only the injuries, symptomatology and disabilities to be set out: Plaintiff's Submissions at [14].

105 Further, in terms of question 7, Mr Dooley submitted that this relates to prognosis, and:

"Against the background of their previous reports and their joint expert report, it merely remains for them to set out, as they in fact have, that the nature of the plaintiff's problems will continue and hence make him unemployable": Plaintiff's Submissions at [20].

106 Accordingly, he submitted: "The reasoning process is clear and identifiable and provides a basis for understanding how they have reached this joint opinion": Plaintiff's Submissions at [22].

Question 5

107 Mr Joseph submitted that the conclave seems to have limited its answer to question 5 to one examination, namely Dr Harvey's 2013 examination.

108 The answer to question 5 also states "it is consistent...". Mr Joseph submitted this does not identify what it is consistent with, nor whether it is consistent with other medical material or statements. In his submission, this leaves open other causative agents and would justify oral concurrent evidence: Defendant's Submissions at p5, [14].

Question 6

109 The answer to question 6 includes "...have difficulty with keeping at work...".

110 Mr Joseph submitted this was meaningless and does not identify what keeping or work means, and further, that the answer fails to include reasons for the opinion: Defendant's Submissions at p5, [15].

Question 7

111 It is argued that "given is no unanimous answer to question 7 it should be subject to oral concurrent evidence": Defendant's Submissions at p5, [18].

Question 8

112 Mr Joseph objected to the answer given to question 8, submitting it is without any factual or assumptive basis: Defendant's Submissions at p5, [19].

(b) The Orthopaedic Opinions in the Joint Report

113 The joint expert report of the orthopaedic surgeons recorded the following matters of agreement:

(i) Drs Hopcroft and Bracken agreed that the MRI scan showed quite clearly a very large L4/5 left sided disc protrusion. It also showed some bulging of the L2/3 disc and he also had some pre-existent of the spondylitic change: p 4.

Dr Millons stated that, "we need to look at the cause and effect. The cause was that the plaintiff was bounced around and the pain in his back and his left sciatica came straight from that so therefore something has happened at that time": p 4.

Dr Harvey did not think that the disc protrusions referred to by Drs Hopcroft and Bracken were a direct result of the accident. He thinks that they could have been rendered symptomatic by that and he then referred to the degenerative process aggravated by the accident.

(ii) All experts were in agreement that the accident on 1 July 2010 gave rise to the need for surgery performed by Dr Ferch, being microdiscectomy rhizolysis: p 4.

The experts agreed that because the outcome of the surgery was not as expected, the plaintiff continued to have disabling left-sided sciatic foot drop and that he ultimately came to double level fusion with spaces inserted: p 4.

Dr Harvey did not think that those protrusions were a direct result of the accident. He thinks they could have been rendered symptomatic by it: p 4.

Dr Bracken expressed strong disagreement with the opinion of Dr Harvey. He stated that in the greater sum of cases "... this stems from a traumatic event": p 5.

(iii) The experts expressed the joint opinion that there was impairment and that as a consequence the plaintiff's spinal fusion he would have difficulty with keeping at work, and that he would be unfit for work which involved heavy lifting and/or bending: p 6.

114 In relation to the differences of opinion, the following matters, inter alia, were recorded:

• Dr Hopcroft believed that if you fused two segments of a spine with the pathology in question, taking into account changes at L2/3 level, the changes at L2/3 can deteriorate more rapidly simply by the fusion: p 6.

• Dr Millons agreed with Dr Hopcroft and believed that based on what is stated in the previous dot point there would be "little chance that the plaintiff would be able to do any work at all really": p 6.

• Dr Millons stated that the plaintiff was 62 years old, that he has had "failed back surgery" and "a wonky L2/3 disc and on that sort of history, there's not a lot really that this man's going to be able to do". He noted that he never saw the DVD of the plaintiff: p 6.

• Dr Bracken was of the opinion that the plaintiff was unemployable, and that "he would definitely be unfit for his previous work duties in a coal mine. As far as any alternative related work, he doesn't think he could qualify for any of it."

• Dr Harvey disagreed with the above statements by Drs Hopcroft, Millons and Bracken. He did not think the plaintiff would be completely unemployable. He saw a DVD in which the plaintiff was undertaking his activities on a day and he was moving fairly freely doing various things. He thinks he would be fit for light work, but is quite happy to accept that he wouldn't be fit for heavy work which involved much lifting or bending: p 6.

115 In relation to the plaintiff's capacity for employment, the joint report records:

"AH, DM and BB agree that the plaintiff would be unemployable on his history. FH believes that he would be fit for light duties": p 7.

(ii) The Diabetes Conclave

116 On 6 February 2014, a joint expert report was signed by Dr Alan G Hobergh, Dr Damien Whittaker and Dr Ivan T Lorentz. Dr Lorentz was retained by the defendant. He has not examined the plaintiff and relied upon material referred to in his reports.

117 The members of the diabetes conclave expressed their unanimous agreement on several matters and included additional comments on matters to which the joint report relates.

118 The following matters are recorded in the joint report:

(1) That it was unanimously agreed that the symptoms of which the plaintiff complains on the balance of probability is far more likely to have been a consequence of the injury to his spine sustained on 1 July 2010 and not to his "sub-optimally controlled diabetes": at [4].

(2) It was unanimously considered by the members that on the balance of probabilities the plaintiff's Type 2 diabetes will have no impact on his future employment and to the plaintiff's express desire to work until the age of 70 and has had no effect on his employment in the past: at [6].

(3) It was unanimously accepted that "increasing numbness of the left leg" is rare in insulin-dependent diabetes and less so in Type 2 diabetic patients, but is extremely common in patients whose lumbar spinal pathology had been radiologically proven as in the plaintiff's case: at [15].

(4) It was unanimously accepted that unilateral foot drop is a rare symptom in diabetes but common in spinal injuries with proved nerve root compression from discal prolapse: at [18].

(5) It was unanimously accepted that the plaintiff's diabetic status would not have been a cause of his inability to return to his previous employment as an underground coal miner as he had no constant symptoms of peripheral neuropathy before his back injury and controlled or sub-optimally controlled diabetes mellitus does not prevent a patient from working in underground mining: at [20(f)].

(6) In relation to the multiple symptoms listed under question 21, it was stated that it was "universally accepted" that the symptoms were far more in keeping with a proximal nerve root compression than of diabetic peripheral neuropathy: at [21(b)].

(7) It was "universally accepted" that the symptoms were probably not caused by his diabetes and it was far more likely they were probably caused by his back pathology and left L5 nerve root compression with intermittent effects on the right side: at [21(c)].

(8) It was "universally accepted" that the plaintiff's diabetes will not limit his work capacity considering that he would have worked to 65 or 70 had he not injured his back. It was universally accepted that he is currently not fit for his normal occupation of an underground miner and that that capacity is not due to his diabetes melitis but due to the significant residual problems he suffers from his back injury and surgery and nerve root compromise. It was universally accepted that his diabetes melitis will not affect his capacity to undertake domestic activities inside and outside his home but that his spinal pathology would. It was unpredictable whether his diabetes melitis would ever affect his ability to undertake domestic activities inside and outside his home and was dependent on how long the plaintiff lived: at [23].

(9) It was "universally accepted" that the answer to this question was that this patient had a radiological proven cause of his left foot drop, namely an L4/5 lateralised major disc protrusion and that it unilaterality dismisses the likelihood of diabetes in the plaintiff causing the problem: at [25].

119 The joint report sets out, on the basis stated at [8], a series of answers to questions at 9 to 32 of the joint report. All documents supplied to the conclave were read by the members of the conclave: at [33].

120 The joint report records the unanimous agreement of the members of the conclave on specific aspects in the above band of questions including, in particular at [20] and [25]. The answers to those questions display a detailed consideration to each. Specific comments by one or members of the conclave are recorded by way of additional explanatory comments.

121 The diabetes conclave report fulfils the purpose to be served by the joint report rules which is to determine the (medical) matters and issues upon which the experts agree and to record any that are not subject of agreement. This is precisely what the members of the conclave, all eminently qualified, did in the subject conclave and joint report.

122 The matters and issues upon which they agreed dealt with all that were central to the plaintiff's claims in the proceedings and arising on the defendant's Amended Defence. Those included the specific disabilities that are referable solely to the plaintiff's diabetes and to the issue as to whether his diabetic condition would have adversely affected or limited his working life to at least 70 years.

123 I do not here refer to each criticism set out in the defendant's submissions in relation to the conclave report. The submissions for the defendant do not extend to demonstrating how or on what basis such matters could provide a foundation for either challenging the joint report as a report that falls within the conclave provisions nor how they go to admissibility nor to the exercise of the discretion under s 135 of the Evidence Act. I state immediately, notwithstanding the multitude of matters raised in the defendant's submissions, they do not establish invalidity, inadmissibility whether in terms of the exclusion provisions in s 135 or otherwise.

124 It is not to be overlooked that in the agreed position between the members of the conclave, the defendant's chosen expert, Dr Lorentz, expressed his opinion by participating in the unanimous agreement on the matters recorded in the joint report.

125 There is no basis for the application to exclude the joint report. The application to exclude the diabetes conclave joint report from evidence is refused.

(iii) Vocational Assessment Conclave

126 On Friday, 7 February 2014, Mark Ravagnani and Sebastian Bass participated in a joint conference.

127 On 20 February 2014, a joint expert report was produced arising from the conclave.

128 The report identifies the material available to the members of a conclave. They stated, at page 5, that they were not qualified to offer an opinion on the medical aspects of the plaintiff's claim but accepts that he sustained injury involving the lumbar spine, as specified in the joint report.

129 The members of the conclave stated that there were no differences in their opinion regarding the plaintiff's injuries, symptomatology and disabilities: p 5.

130 Both experts agreed that the plaintiff had suffered a significant career disruption and a lasting vocational disability as a result of his injuries, insofar as he was unable to return to his pre-injury job: p 6.

131 Both agreed that a limited subset of the sales and service employment options provided by Mr Bass may be potentially suitable occupational alternatives: p 6. However, they disagreed on the plaintiff's "realistic chances of gaining such employment".

132 The differences were set out at pages 6-7 of the report. Mr Ravagnani expressed the view that the plaintiff would not secure or maintain full or part-time employment now or in the future. Further, he also expressed his view that it was highly unlikely that he would find an employer willing to provide him with light part-time work suitable to him.

133 Mr Ravagnani then set out his reasons for his opinion.

134 Mr Bass is of the opinion that the vocations that were referred to in his report of 11 October 2012 were "entry-level jobs". It was noted that the plaintiff's "solid work history and overall presentation" was such as to likely satisfy a potential employer concerning reliability. It was noted that the plaintiff "... presents as a man who is 'as good as his word'": p 7.

135 He suggested that employers of delivery drivers require reliable employees and the plaintiff would be able to fulfil the requirements of such jobs and that there are employers who prefer mature and reliable workers: p 7.

136 In the Defendant's Submissions, it is stated:

"21. This conclave suffers from of the vices identified above": p 5.

137 The brief submissions then refer to a number of matters including questions 2, 3 and 4, and criticise the way they are framed.

138 There were also further criticisms made as to the absence of any identification of "assumptions" referred to.

139 Insofar as the defendants rely upon the "vices" ventilated in respect of the orthopaedic conclave report, my assessment and disposition of those matters equally applies in determining the vocational assessment conclave report. I do not consider that the matters otherwise raised in the defendant's written submissions at [22]-[26] provide any basis upon which either the validity of the joint report or its admissibility is adversely affected.

140 The defendant's submissions again do not address how it is suggested, and upon what basis any of the matters referred to in its written submissions either render the joint report inadmissible, nor does the defendant identify any basis upon which the proper exercise of the discretion under s 135 ought be exercised.

141 There is no basis for the exclusion of the joint conclave report.

(iv) Occupational Therapists Conclave

142 On Monday 17 February 2014, the joint conference was held between Susan Ravagnani and Claire Hughes.

143 A joint report was produced dated 18 February 2014.

144 The report identifies the documentation that was available to assist the conclave: p 2.

145 The report specifies agreement as to the nature of the lumbar spinal injuries and the surgical interventions carried out on the plaintiff on 13 September 2010 and 8 April 2013.

146 Both members of the conclave set out their agreement on the residual symptoms and disabilities that apply to the plaintiff: p 3. It was noted that Ms Hughes had not assessed the plaintiff since he underwent his second surgical procedure. Ms Ravagnani reassessed him on 6 August 2013.

147 The members of the conclave expressed no differences in opinion regarding the plaintiff's injuries, symptomatology and disabilities.

148 Both agreed on the requirement for assistance with his personal care consequent upon the injuries sustained in the accident, but disagreed on the extent of assistance and duration required: p 4.

149 In relation to the first 12 weeks following surgery in 2013, the total hours were essentially agreed, that is 45 hours of assistance with personal care tasks following surgery of April 2013: p 4. However, Ms Ravagnani is also of the opinion that the plaintiff also required assistance for a further six months while he continued to recover.

150 As to the differences in relation to assistance with personal care tasks, these are addressed in the report at page 5. Each member of the conclave then specifies the basis for and calculations of the extent of assistance required following surgery on 13 September 2010 and post-spinal fusion in April 2013.

151 The differences in calculation accordingly are set out in the joint report at pp 5-6.

152 The issue of "Past Care - Domestic Assistance" is similarly discussed on the basis that both agreed that the plaintiff had a requirement for assistance with internal domestic activities following the accident after each surgical intervention. However, they expressed their disagreement on the extent of assistance and duration required as set out on those pages of the joint report.

153 Each member of the conclave then addressed the issue of the requirement for assistance with external domestic activities in a similar manner.

154 The differences are clearly stated and the calculations resulting from those differences are set out in the joint report.

155 So far as "Future/Ongoing Assistance - Personal Care" is concerned, the members of the conclave set out their opinion in terms that, assuming the plaintiff's functional capacity remains unchanged, he requires no ongoing personal care assistance.

156 The members of the conclave then address a situation if there should be deterioration in the future.

157 As to "Future/Ongoing Assistance - Domestic Tasks", both members of the conclave agreed that the plaintiff was likely to continue to require assistance with the heavy internal domestic tasks and all external domestic tasks, but disagreed with the extent of assistance required. Each sets out the differences and the resultant calculations.

158 The report then separately deals with the agreement and areas of disagreement in relation to "treatment & exercise", "equipment" and "accommodation requirements".

159 In the defendant's submissions it was contended that the questions to the conclave were not part of any order by Registrar Bradford. However, both experts were retained respectively by the plaintiff and the defendant and had issued previous reports which were available to the parties.

160 It is customary in personal injury litigation cases where there is no issue that the plaintiff suffered significant injury and was required to undergo surgery, that the assessment of functional capacity falls within the expertise of occupational therapists. The evidence of such experts assists the Court in determining the requirements for support or care in a particular case and the need for equipment and other support mechanisms. It is the common experience of this Court that the legal representatives of the parties, based on occupational therapists reports, produce agreed schedules as to rates, hours etc, leaving the Court to determine only those residual issues, if any, upon which agreement cannot be reached. In this way the Court time and costs of the parties are minimised.

161 The conclave joint report is to be read in the context of the individual reports of the members of the conclave. The individual matters set out in the written submissions for the defendant at [59]-[74] raise a number of criticisms but do not relate the submissions to the provisions of the UCPR that determine the admissibility of joint reports of conclave members. Nor do the submissions address how, or upon what basis, the matters relied upon would warrant the exclusion of the joint report under s 135 of the Evidence Act. I have earlier addressed in relation to the orthopaedic conclave report the issues that determine the admissibility of joint reports. The observations there made have application with the criticisms directed to the occupational therapists conclave report.

162 Upon consideration, I have concluded that there is no basis for the application to exclude the joint occupational therapists report. The application to exclude the joint report from evidence is refused.

Conclusions

163 The defendant's written submissions propound propositions and arguments that are contrary to accepted legal principles at a number of levels:

(1) The submissions proceed upon the assumption that a conclave report, like an "expert report", is subject to the obligation to disclose underlying reasons for agreement. It is not. Under UCPR r 31.24(1)(c) and r 31.26(2) such an obligation has been abrogated in respect of expert reports.

(2) The submissions focus upon the conclave reports without reference to the individual reports of the conclave participants each had earlier provided. Such an approach is contrary to the approach this Court has adopted. The conclave report is to be considered in the context of prior reports: X v Sydney Children's Hospital Specialty Network (No 5) at [55]-[56].

(3) The submissions criticise the absence of "assumptions" and assumed facts regarding questions 3, 4, 7 and 8. Clause 10 of Practice Note SC Gen 11 provides for the provision of "witness statements or preferably a joint statement of the assumptions to be made by the experts ...". The orthopaedic conclave, as noted above, was provided with the three evidentiary statements of the plaintiff as to factual matters. (The defendant did not provide any witness statements to the conclave.) These statements complied with clause 10 of Practice Note SC Gen 11.

(4) The submissions assume that the joint report of a conclave is an "expert's report" and therefore must comply with the requirements for such reports. However, the submission overlooks that the "statement of reasoning rule" has been excluded by UCPR 31.24(1)(c) and 31.26(2), as these rules contemplate that the experts are not required to give reasons where there is agreement. There was agreement in this orthopaedic conclave between Drs Bracken and Hopcroft. Dr Millons, though not expressing an opinion on the nature of any discogenic lesion caused by the accident, expressed an opinion not inconsistent with that of Drs Bracken and Hopcroft:

"the pain in his back and left sciatica came straight from that so therefore something has happened at that time": Orthopaedic conclave report at p 4.

164 The members of the conclave (Drs Hopcroft, Millions and Bracken) were in agreement on the plaintiff's capacity for employment with Dr Harvey expressing his own view:

".... AH, DM and BB agree that the plaintiff would be unemployable on his history. FH believes that he would be fit for light duties": Orthopaedic conclave report at p 7.

165 Finally, the defendant's written submissions rely upon the "irrelevant considerations" principle, or a principle that is recognised principle of administrative law: Defendant's Submissions at p3, [3] and p5, [17]. There is an unwarranted assumption that the "irrelevant considerations" ground of judicial review applies to the conclave joint reports.

166 There is no basis identified in the defendant's submissions for the operation of that principle upon which the recognised grounds for judicial review can apply. The defendant's submission proceeds on an assumption that the "irrelevant considerations" ground of judicial review applies to the participants in a medical conclave.

167 It is well accepted that the process of statutory interpretation is the starting point with respect to such a ground: Judicial Review of Administrative Action, Aaronson, Dyer & Groves (LawBook, 3rd ed, 1973) at p 255. The defendant's submissions make no reference to any such "starting point".

168 Finally, UCPR 31.26(3) provides express authorisation for the admission at trial of any matters agreed in a joint report.

169 The defendant's submission as to "irrelevant considerations" is, with respect, devoid of merit and is rejected.

170 The application to exclude from evidence the four joint expert reports, for reasons set out above, is without merit and must be refused.

Transcript of Conclave Proceedings

171 Uniform Civil Procedure Rule 31.24(6) provides that "unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing".

172 This sub-rule is to be understood and construed in its context. UCPR r 31.24(1) provides for the making of a direction by the Court to expert witnesses "to confer" either generally or in relation to specified matters. The "content of the conference" referred to in UCPR r 31.24(6) would include the discussions of expert witnesses directed to confer and in particular their discussion of evidentiary statements, medical records and other records.

173 The "content" of the conference, as referred to in r 31.24(6), would include a transcript of discussions between the expert witnesses of a conclave.

174 Uniform Civil Procedure Rule 31.24(6) evidences a specific intention to ensure that experts who participate in a conclave should be able to freely discuss matters within their area of specialty in a way which does not deter or impair free and open exchanges by the experts of their opinions, with the objective of finding, wherever possible, common ground, and expressing agreement upon matters that are relevant to the issues in the proceedings.

175 It has been noted that the emphatic terms in which UCPR r 31.24(6) is expressed, namely, that "the content of the conference...must not be referred to", supports this construction.

176 The phrase "must not be referred to" in r 31.24(6) is a broad expression and is not limited to tendering a transcript of a conclave. It would extend to precluding anyone during a hearing of proceedings from making reference to the content of the transcript and from otherwise utilising the transcript as evidentiary material.

Decision

177 Whether circumstances may arise requiring the exercise of the discretion to depart from UCPR r 31.24(6) in rare cases, does not, in my assessment, arise in the context of the present case. No matters, in other words, have been identified that would be sufficient to warrant a departure from the general position as stated in the Uniform Civil Procedure Rules. I have taken into account in that respect the matters raised in submissions at T 20 March 2014 at pp 737-738.

Orders

(1) The defendant's application to exclude from evidence the joint reports of the four conclaves referred to in [16] above from evidence, is refused.

(2) I will hear the parties on the question of costs of the application.

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Decision last updated: 24 March 2014