O'Reilly v Western Sussex NHS Trust (No.2) [2013] NSWSC 1659

O'Reilly v Western Sussex NHS Trust (No.2) [2013] NSWSC 1659

The Court exercised its discretion to admit Professor Tattersall's reports and permit reliance on his evidence because he was an experienced expert witness familiar with the Expert Witness Code of Conduct, had prepared his reports consistently with its substance, and the non-compliance resulted from the plaintiff's lawyers' oversight rather than any knowing refusal by the expert. The defendants raised the objection very late after intensive case management, after their own experts had addressed Professor Tattersall's opinions, and after a joint conference involving him; in those circumstances they had waived, or at least their delay weighed against, the objection. Other expert reports in...

Jurisdiction
Australia
Judgment Date
08 November 2013
Procedural Posture
Common Law Procedural Ruling on Admissibility of Expert Evidence / Plaintiff's Motion During Trial After Defendants Objected to Professor Tattersall's Expert Reports and Oral Evidence
Outcome
Plaintiff granted leave to rely on Professor Tattersall's reports dated 31 August 2012, 2 October 2012 and 23 October 2013 despite non-compliance with the Expert Witness Code of Conduct requirement; the late service objection to the 30 April 2013 report was left for further submissions.
Legal Topics
['admissibility of Expert Reports' 'expert Witness Code of Conduct' 'uniform Civil Procedure Rules 2005 R 31.23' 'overriding Purpose' 'fair Trial' 'late Objection to Evidence']
['evidence' 'civil Procedure' 'expert Evidence'] ['admissibility of Expert Reports' 'expert Witness Code of Conduct' 'uniform Civil Procedure Rules 2005 R 31.23' 'overriding Purpose' 'fair Trial' 'late Objection to Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Procedural Ruling on Admissibility of Expert Evidence / Plaintiff's Motion During Trial After Defendants Objected to Professor Tattersall's Expert Reports and Oral Evidence

Legal Issues

  1. 1 ["Whether the plaintiff should have leave under r 31.23(3) and r 31.23(4) of the Uniform Civil Procedure Rules 2005 to rely on Professor Tattersall's reports and oral evidence despite the reports not acknowledging or adopting the Expert Witness Code of Conduct in schedule 7 of the UCPR." 'Whether the interests of justice, the overriding purpose and any prejudice to the defendants justified admitting the expert evidence notwithstanding non-compliance.' "Whether the defendants' late objection, after case management and expert engagement involving Professor Tattersall, should affect the exercise of discretion."]

Ratio Decidendi

The Court exercised its discretion to admit Professor Tattersall's reports and permit reliance on his evidence because he was an experienced expert witness familiar with the Expert Witness Code of Conduct, had prepared his reports consistently with its substance, and the non-compliance resulted from the plaintiff's lawyers' oversight rather than any knowing refusal by the expert. The defendants raised the objection very late after intensive case management, after their own experts had addressed Professor Tattersall's opinions, and after a joint conference involving him; in those circumstances they had waived, or at least their delay weighed against, the objection. Other expert reports in...

Court Disposition

Plaintiff granted leave to rely on Professor Tattersall's reports dated 31 August 2012, 2 October 2012 and 23 October 2013 despite non-compliance with the Expert Witness Code of Conduct requirement; the late service objection to the 30 April 2013 report was left for further submissions.

Orders

  • ['Order, pursuant to rule 31.23(3) and 31.23(4) of the Uniform Civil Procedure Rules 2005, that the plaintiff have leave to rely upon the reports of Professor Tattersall dated 31 August 2012, 2 October 2012 and 23 October 2013, notwithstanding that those reports do not adopt the Expert Witness Code of Conduct...