Miller v Jones (No 3) [2019] NSWSC 1444

Procedural Posture

Negligence Action Arising Out of a Surgical Procedure / Procedural Ruling on Objection to Admissibility of Expert Reports

Legal Issues

1. 1 ['Whether the two reports of Dr Devitt were relevant to facts in issue in the proceedings.' 'Whether the expert opinions in the reports sufficiently exposed the intellectual basis and reasoning process required for admissibility under s 79 of the Evidence Act 1995 (NSW).' 'Whether the reports should be excluded because they did not contain an acknowledgment that the expert had read and agreed to be bound by the Expert Witness Code of Conduct.' 'Whether the second report should be excluded as misleading and confusing under s 135(b) of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The first report was excluded because, although the absence of an express Code acknowledgment would not by itself have required exclusion, the report stated a bare opinion that the surgery was in keeping with a reasonably competent surgeon without exposing the reasoning process and intellectual basis required by s 79. The second report was excluded because its references to athletes, elite athletes and Australian Rules Football statistics were not relevant to the plaintiff, a Rugby League player, even allowing for the breadth of s 55; alternatively, it would have been excluded under s 135(b) as misleading and confusing.

Court Disposition

The two reports of Dr Devitt were excluded.

Orders

• ['The two reports of Dr Devitt will be excluded.']