X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351

X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351

The Second Joint Report was admissible because UCPR 31.26 validly authorises admission of agreed matters in a joint expert report without requiring reasons for agreement, subject to exclusionary discretions. The report was prepared through a process agreed by the parties and mandated by the Court, the later instructions did not require reasons for agreed matters, any apparent inconsistencies or prejudice could be explored through concurrent evidence, the probative value was not substantially outweighed by the dangers identified in s 135 of the Evidence Act 1995 (NSW), and UCPR 31.28 did not apply to joint reports under UCPR 31.26.

Jurisdiction
Australia
Judgment Date
10 November 2011
Procedural Posture
Claim for Damages Alleging Breach of Duties of Care; Interlocutory Application Concerning Expert Evidence / Plaintiff's Interlocutory Application to Exclude the Second Joint Report on Breach of Duty From Evidence
Outcome
Plaintiff's application refused; Second Joint Report on breach of duty admitted into evidence.
Legal Topics
['joint Reports of Experts' 'admissibility of Expert Evidence' 'reasons for Expert Agreement' 'procedural Fairness' 'evidence Act 1995 (nsw) S 135 Discretion' 'uniform Civil Procedure Rules 2005 (nsw) R 31.26']
['practice and Procedure' 'evidence' 'expert Evidence'] ['joint Reports of Experts' 'admissibility of Expert Evidence' 'reasons for Expert Agreement' 'procedural Fairness' 'evidence Act 1995 (nsw) S 135 Discretion' 'uniform Civil Procedure Rules 2005 (nsw) R 31.26']

Case Brief

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Procedural Posture

Claim for Damages Alleging Breach of Duties of Care; Interlocutory Application Concerning Expert Evidence / Plaintiff's Interlocutory Application to Exclude the Second Joint Report on Breach of Duty From Evidence

Legal Issues

  1. 1 ['Whether UCPR 31.26(3) and (4) were invalid because they permitted a joint expert report to be tendered without reasons for matters agreed.' 'Whether UCPR 31.26(3) authorised admission, rather than merely tender, of the Second Joint Report.' 'Whether the Second Joint Report was inadmissible under s 79 of the Evidence Act 1995 (NSW) and the principles in Dasreef and Makita because reasons were not given for unanimous answers.' 'Whether apparent inconsistencies in the Second Joint Report required its exclusion.' 'Whether the Second Joint Report failed to comply with Court directions requiring reasons.' 'Whether the Second Joint Report should be excluded under s 135 of the Evidence Act 1995 (NSW).' 'Whether UCPR 31.28 applied so as to make the Second Joint Report inadmissible because it contained matters outside served reports.']

Ratio Decidendi

The Second Joint Report was admissible because UCPR 31.26 validly authorises admission of agreed matters in a joint expert report without requiring reasons for agreement, subject to exclusionary discretions. The report was prepared through a process agreed by the parties and mandated by the Court, the later instructions did not require reasons for agreed matters, any apparent inconsistencies or prejudice could be explored through concurrent evidence, the probative value was not substantially outweighed by the dangers identified in s 135 of the Evidence Act 1995 (NSW), and UCPR 31.28 did not apply to joint reports under UCPR 31.26.

Court Disposition

Plaintiff's application refused; Second Joint Report on breach of duty admitted into evidence.

Orders

  • ["Refuse the Plaintiff's application to exclude the Second Joint Report on breach of duty from evidence." 'Admit the Second Joint Report on breach of duty into evidence.']