Avery v Flood [2013] NSWSC 996

Avery v Flood [2013] NSWSC 996

Separate conclaves were warranted because several experts had expressed no opinion on the discrete causation issue, so requiring their attendance at a causation conclave would have little utility and risk wasted time or unqualified opinions. However, Dr Watson's report contained material capable of informing breach issues under the Civil Liability Act 2002, and excluding him from the breach conclave would create an unacceptable risk of unfairness to the plaintiff; fairness also required Professor Halmagyi to attend that conclave.

Jurisdiction
Australia
Judgment Date
24 July 2013
Procedural Posture
Interlocutory Application / Directions as to Constitution of Expert Conclaves
Outcome
Directions given as to constitution of expert conclaves.
Legal Topics
['expert Conclaves' 'joint Expert Reports' 'breach and Causation' 'informed Consent' 'civil Liability Act 2002']
['civil Procedure' 'expert Evidence' 'medical Negligence'] ['expert Conclaves' 'joint Expert Reports' 'breach and Causation' 'informed Consent' 'civil Liability Act 2002']

Case Brief

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Procedural Posture

Interlocutory Application / Directions as to Constitution of Expert Conclaves

Legal Issues

  1. 1 ['Whether expert witnesses should confer in one combined conclave or in separate conclaves concerning breach and causation.' "Whether Dr Watson should attend the breach conclave despite the defendants' contention that his reports primarily addressed causation." 'Whether Professor Halmagyi should attend the breach conclave if Dr Watson attended.']

Ratio Decidendi

Separate conclaves were warranted because several experts had expressed no opinion on the discrete causation issue, so requiring their attendance at a causation conclave would have little utility and risk wasted time or unqualified opinions. However, Dr Watson's report contained material capable of informing breach issues under the Civil Liability Act 2002, and excluding him from the breach conclave would create an unacceptable risk of unfairness to the plaintiff; fairness also required Professor Halmagyi to attend that conclave.

Court Disposition

Directions given as to constitution of expert conclaves.

Orders

  • ['The following expert witnesses are to confer on the subject matters of their reports, other than such parts of their reports as concern the cause of any injury alleged to have been suffered by the plaintiff: Professor Rawlinson, Dr Marshall, Dr McPherson, Dr Baldwin, Dr Forrest, Dr Hudson, Professor Fagan, Dr...