Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805

Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805

The proposed balance-of-probabilities direction was inappropriate because that is the court's standard for findings, not the method by which medical experts should formulate opinions. The proposed assumptions from the Plaintiff's evidentiary statement were also inappropriate because the experts had already examined the Plaintiff and taken histories, and should prepare their joint report based on their own examinations and assessments of the material seen to date rather than a history they could not clarify with the Plaintiff.

Jurisdiction
Australia
Judgment Date
20 June 2017
Procedural Posture
Procedural and Other Ruling Concerning Expert Evidence in Personal Injury Proceedings / Pre Trial Application About Questions and Assumptions for Orthopaedic Surgeons in Conclave
Outcome
The Plaintiff was unsuccessful on the application; orders were made concerning questions for the expert conclave and the Plaintiff was ordered to pay the First and Second Defendants' costs of the application.
Legal Topics
['expert Evidence' 'expert Conclave' 'causation' 'balance of Probabilities' 'assumptions for Expert Reports']
['evidence' 'civil Procedure' 'personal Injury'] ['expert Evidence' 'expert Conclave' 'causation' 'balance of Probabilities' 'assumptions for Expert Reports']

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Procedural Posture

Procedural and Other Ruling Concerning Expert Evidence in Personal Injury Proceedings / Pre Trial Application About Questions and Assumptions for Orthopaedic Surgeons in Conclave

Legal Issues

  1. 1 ['Whether experts in conclave should be directed that their opinions are to be given on the balance of probabilities and that scientific and medical certainty is not required.' "Whether the Plaintiff's evidentiary statement and proposed assumptions should be provided to the experts as assumptions for their joint report."]

Ratio Decidendi

The proposed balance-of-probabilities direction was inappropriate because that is the court's standard for findings, not the method by which medical experts should formulate opinions. The proposed assumptions from the Plaintiff's evidentiary statement were also inappropriate because the experts had already examined the Plaintiff and taken histories, and should prepare their joint report based on their own examinations and assessments of the material seen to date rather than a history they could not clarify with the Plaintiff.

Court Disposition

The Plaintiff was unsuccessful on the application; orders were made concerning questions for the expert conclave and the Plaintiff was ordered to pay the First and Second Defendants' costs of the application.

Orders

  • ['Orders made in relation to questions to be raised in conclave.' "Plaintiff to pay the First and Second Defendants' costs of today's application."]