Joel Joseph Cabides v Commonwealth of Australia [2014] NSWSC 445

Joel Joseph Cabides v Commonwealth of Australia [2014] NSWSC 445

The motion was dismissed because, in the exercise of discretion, the impugned expert reports generally complied with Makita and relied on peer-reviewed articles rather than the unavailable source database; the trial was imminent and exclusion would cause irremediable prejudice to the defendant; the trial was before a judge alone; concerns about the United States data, medical-system differences and inability to test source data could adequately be raised before the trial judge; and the defendant assured the Court it would not rely on the source data or individual patient circumstances beyond what was already reported in the articles.

Jurisdiction
Australia
Judgment Date
14 April 2014
Procedural Posture
Interlocutory Application in Negligence Damages Proceedings / Plaintiff's Motion Filed 3 March 2014 Seeking Exclusion of Expert Reports or Separate Determination of Admissibility Before Assessment of Damages Hearing
Outcome
Motion dismissed; costs reserved to the trial judge.
Legal Topics
['expert Evidence' 'admissibility of Expert Reports' 'separate Determination of Questions' 'assessment of Damages' 'life Expectancy Evidence']
['civil Procedure' 'evidence' 'negligence'] ['expert Evidence' 'admissibility of Expert Reports' 'separate Determination of Questions' 'assessment of Damages' 'life Expectancy Evidence']

Case Brief

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Procedural Posture

Interlocutory Application in Negligence Damages Proceedings / Plaintiff's Motion Filed 3 March 2014 Seeking Exclusion of Expert Reports or Separate Determination of Admissibility Before Assessment of Damages Hearing

Legal Issues

  1. 1 ['Whether the expert reports of Professor David Strauss, Dr Robert Shavelle and Professor Michael DeVivo should be excluded from evidence.' 'Whether there should be a separate preliminary determination on the admissibility of the expert reports.' 'Whether concerns about the United States spinal cord injury study data and its applicability to the plaintiff should be dealt with by the trial judge.']

Ratio Decidendi

The motion was dismissed because, in the exercise of discretion, the impugned expert reports generally complied with Makita and relied on peer-reviewed articles rather than the unavailable source database; the trial was imminent and exclusion would cause irremediable prejudice to the defendant; the trial was before a judge alone; concerns about the United States data, medical-system differences and inability to test source data could adequately be raised before the trial judge; and the defendant assured the Court it would not rely on the source data or individual patient circumstances beyond what was already reported in the articles.

Court Disposition

Motion dismissed; costs reserved to the trial judge.

Orders

  • ['Application for a separate determination of the questions raised in the motion, notice of which was filed on 3 March 2014, dismissed.' 'Otherwise, motion dismissed.' 'Costs reserved, to be decided by the trial judge.']