Sant, Kathy; Broadbent, Nicholas --- "Joint conferences and concurrent evidence in medical negligence cases" [2015] PrecedentAULA 22; (2015) 127 Precedent 27

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JOINT CONFERENCES AND CONCURRENT EVIDENCE IN MEDICAL NEGLIGENCE CASES

By Kathy Sant and Nicholas Broadbent

As expressed by Heydon JA in Dasreef Pty Limited v Hawchar, expert evidence is ‘a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise’.^[1] Medical negligence cases almost always require resolution of complex issues of fact, necessitating the involvement of expert witnesses. In medical negligence cases in the Supreme Court of NSW, the admission of joint reports and the taking of evidence concurrently has become routine practice.

The purpose of joint reports and concurrent evidence is very much for the experts to reach agreement and identify matters in dispute, thus narrowing the issues and saving court time. Initially, the process was intended to eliminate false disagreement and particularly to deal with the commonly encountered situation where reports are, as ships passing in the night, entirely based upon competing assumptions. In Hudson v Howes & Ors, Garling J said a purpose of the conference was to ‘minimise the areas of disagreement between the experts about their opinions, and maximise the areas of agreement’.^[2] McClellan CJ at CL said in Halverson v Dobler:

‘This process proved both highly productive and efficient and has been of great benefit to me in resolving this case. The discussion was sustained at a high level of objectivity by all participants, each of whom displayed a genuine endeavour to assist the court to resolve the problems. The fact that ultimately they disagreed on critical issues was not due to anything other than a genuine difference of opinion about the appropriate conclusion to be drawn from the known facts.’ ^[3]

For lawyers, the process might seem a forensic and logistical headache: advocates have less control over the direction of the evidence and there are inevitable difficulties associated with getting a number of busy experts to set time aside at the same time. This is particularly so in the medical negligence context, where many experts run busy medical practices and may face commitments that they cannot (or will not) reschedule.

Some of these concerns can be ameliorated with proper preparation. Practitioners need to be familiar with the requirements for preparing a joint report, facilitating joint conferences and with the logistics of concurrent evidence.

JOINT CONFERENCES AND REPORTS

Rule 31.24 of the Uniform Civil Procedure Rules (UCPR) provides that the court may direct expert witnesses to confer:

‘(1) The court may direct expert witnesses:

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on any matters in issue, and

(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d) to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.’

The process is set out in detail in Practice Note (PN) Supreme Court Gen 11. A similar approach may be used in other courts. However, if so, the process should be adapted to the complexity and value of the matter, as preparing for joint conferences can be extremely time-consuming and expensive. Concurrent evidence does not automatically mean the expense of a joint report must be incurred.

The PN envisages that the parties will confer and agree upon the experts to attend, the questions to be answered and the materials to be provided to participating experts, and will generally prepare a joint statement of assumptions. Alternatively, witness statements may be provided.

The joint conference may take place with or without the parties or their legal representatives but, in practice, the experts confer in the absence of the parties and their representatives. In the NSW Supreme Court, the PN prohibits the experts from seeking advice or guidance from the parties or their legal representatives except as provided for in the PN. The only advice or guidance permitted is a joint response from legal representatives or an individual response authorised by all other representatives.^[4]

An independent facilitator is sometimes appointed as envisaged by UCPR 31.24(2)(c).

In the absence of a facilitator, the Supreme Court PN envisages that the participating experts will appoint one of their number to chair.^[5] Being in the chair can increase one’s influence on the outcome of any meeting. An independent facilitator is preferred for liability reports and when there are multiple experts, many questions or complex issues of damages.

Unless the affected parties agree, the content of the discussion between the expert witnesses in the joint conference must not be referred to at hearing.^[6] However, it is not confidential in that the expert is free to disclose what happened in conference to legal representatives. In the Supreme Court, this is explicitly permitted by the PN which states that after the joint report has been signed, the experts may communicate what transpired at the meeting in detail if they wish.^[7] But this should not happen prior to completion and signing of the report.

The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.^[8] Reasons do not have to be provided where matters are agreed. There is nothing to stop the judge from directing that reasons be given for all answers, or reasons may be requested by the parties. However, the latter will likely require agreement between the parties and, on current authority, the failure of the experts to provide reasons will not prevent the report being admitted, even if reasons were requested.^[9]

The joint report will not be the only report available and usually not the only report admitted into evidence. The views of each of the experts should have been explained in their individual reports, generally at much greater length. However, where they did not agree before the conclave and agree after it, there must be something new. That could be a shift in position by one or more experts, or an opinion may have been expressed on the basis of an assumption not previously made, or the report may go into new areas. In each of these scenarios, reasons will not be found in the earlier, individual reports and the parties may not be on notice of the opinion or its basis. Whatever happened at the joint conference to bring about any change in an expert's previously considered position will not be disclosed to the judge and may not be known by the parties. Factors such as force of personality and seniority may play a role. A doctor may be unwilling to contradict a more senior colleague, particularly if the latter was once his or her supervisor or mentor (a common scenario). Reasons are important and a direction for reasons should be obtained if possible.

CONCURRENT EVIDENCE

The preparation of a joint report by experts often culminates in the calling of concurrent evidence at trial. Concurrent evidence appears to be an Australian innovation, pioneered in the NSW Land and Environment Court,^[10] which has gained momentum in other Australian courts and overseas.

Colloquially known as ‘hot-tubbing’, concurrent evidence has been described as:

‘...essentially a discussion chaired by the judge in which the various experts, the parties, the advocates and the judge engage in a co-operative endeavour to identify the issues and arrive where possible at a common resolution of them. Where resolution of issues is not possible, a structured discussion, with the judge as chairperson, allows the experts to give their opinions without the constraints of the adversarial process and in a forum which enables them to respond directly to each other. The judge is not confined to the opinion of one adviser but has the benefit of multiple advisers who are rigorously examined in public.’^[11]

The starting point is again UCPR 31.35, which allows the court to give a number of directions about the way concurrent evidence is taken. The provisions are designed to be facilitative in nature, to allow for different approaches taken by judges, and to ensure that the process runs smoothly. However, the format of the process may give rise to forensic issues: practitioners should consider how directions made might affect the way in which their experts present in court. Moreover, the approach taken by judges differs. Many judges prefer to ask questions based on the joint report before the parties commence their examinations. Practitioners should, in some cases, prepare for the prospect of time-limited cross-examination, or to be restricted to certain topics. When early thought is given to what directions might be made as to the format of concurrent evidence, practitioners are better placed to maintain control of the process.

When commencing proceedings in the NSW Supreme Court, practitioners should take careful note of General Case Management Practice Note of the Supreme Court, Common Law Division 5 (PN 5), which requires the presumptive use of concurrent expert evidence in all proceedings in which a claim is made for damages for personal injury or disability. It should be read alongside Practice Note SC Gen 11 (discussed above). PN5 provides for a series of deadlines which should be closely adhered to, not only to ensure that the process is effective, but also to manage the inevitable logistical stress associated with concurrent evidence. Merely advising experts of a trial date and hoping for the best will not suffice: expert witnesses are often busy professionals whose diaries align about as often as the planets do, so prompt planning and organisation is critical to ensure that they all attend when required.

Proper preparation for concurrent evidence delivers undoubted forensic benefits, and is something that the court has come to expect as a matter of course. As Schmidt J observed in Willett v United Concrete Pty Limited and Anor:

‘That requires not only that the legal representatives familiarise themselves with the processes involved, both prior to and at the hearing, but that experts who are engaged to give evidence, also ensure that they participate properly in the necessary preparatory processes. While this obviously requires experts to spend more time prior to a hearing, identifying what is truly disagreed between them, with a resulting increase in costs for the parties at that stage, this is counterbalanced by the resulting reduction of hearing time and costs and importantly, improving outcomes for parties by ensuring that the experts have a common understanding, before the hearing, as to what they agree and disagree, so that the hearing may be directed to ensuring that the trial judge gains a real understanding of what is in issue between the experts and why. That process has the additional benefit of assisting parties to reach settlements before a hearing, or at least by reducing what is in issue between them.’^[12]

ADVOCACY DURING CONCURRENT EVIDENCE

The role of the judge during concurrent evidence, as expressed above by Justice McClellan, is akin to a ‘facilitator’ or ‘chairperson’ of the discussion. One of the aspects of concurrent evidence that provokes disquiet among practitioners is the fact that their role can be very different to that of the ‘traditional’ common law advocate. Advocates feel they have less control over the process.

The NSW Court of Appeal has considered the point at which judicial intervention has the effect of denying the parties procedural fairness during the provision of concurrent evidence. In Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd, Tobias JA (Spigelman CJ and Santow JA agreeing) held that interventions from the judge are permissible to the extent that the purpose is to clarify the experts’ evidence, rather than to cross-examine the witnesses or challenge their evidence.^[13] In matters where a judge sits without a jury, ‘the judge may intervene to control, to clarify, or to make known a provisional view’.^[14] Where a joint report has been prepared and topics are set, the scope for intervention is likely to be greater.

How an advocate might go about objecting to expert evidence given concurrently is relatively uncharted territory, but objections should be taken where forensically necessary. The risk of objectionable evidence being admitted is not an insignificant one, especially where opinions are being debated between two experts, without any questioning by counsel.

It is debatable whether the better time to take objection is at the stage when questions are being framed, or during concurrent evidence. In a case concerning provision of information, John v Henderson (No. 1), there was a dispute over the questions to be put to experts retained in a medical negligence dispute.^[15] The court’s discussion of ‘open’ questions, matters of law and questions directed to provision of information gave an indication of the way the court might deal with objections to questions.^[16] In that case, Justice Garling said:

‘It seems to me that the appropriate course to follow where I am not positively persuaded that such evidence is wholly irrelevant is to permit the questions to be asked, in the form on which I have settled, of the experts, to note that the plaintiff objects to the evidence being admitted, and to reserve to the trial judge the question of whether any expert evidence on those issues is or is not admissible. Of course, what the experts say may affect that question of admissibility.’ ^[17]

Ultimately, there may be very little room for an advocate to object to large swathes of concurrent expert evidence without appearing entirely obstructive.

Nonetheless, there may be significant benefits to be derived from the ‘hot-tub’ format, particularly where complex expert evidence is involved. Counsel has an opportunity to ask questions, and can prompt his or her expert to engage with the other expert, rather than doing it themselves. Rares J, writing extra-curially, has commented on the fact that this can reduce the number of ‘red herrings’ that might be chased by advocates who do not have as much expertise in the area, but who are simply trying to cover all angles.^[18] This must surely be an advantage of the process; however, practitioners should not expect their experts to possess cross-examination skills, and forensic decisions in a case cannot be placed in the hands of a person who has a duty to provide independent expert opinion. Practitioners should not expect their witness to be able to run their case for them. Possible ‘red herrings’ and other matters of concern should be discussed in confidence with experts before concurrent evidence is given, following joint conferences.

The choice of expert, particularly in the context of the ‘hot-tub’ and joint conference dynamic, is vitally important. It is critical to choose experts who are assertive, well qualified and focused, but not bullies. Bullies, no matter how qualified, are unlikely to impress most judges. A far more impressive witness will be one who is able to quietly and carefully articulate the problems with their colleague’s evidence, including senior colleagues, and provide cogent arguments in favour of an opposing view. They should be confident enough to adhere, where it is sensible to do so, to their opinions as expressed and explain the basis for them.

At an early stage, experts should be given the opportunity to consider the reports of their colleagues and identify any erroneous assumptions or findings that arise from the reports. Input should be obtained from experts to identify with precision the areas of the evidence that are the most contentious, as this will allow lawyers to frame questions for the joint report more accurately. Experts should be given an opportunity to read the pleadings and understand the case as a whole. Such preparation must at all times, of course, be governed by the provisions of the Bar Rules and/or Solicitors Rules relating to practitioners conferring with witnesses.

It is vital that questions for concurrent evidence be framed with care, allowing all experts to express their admissible opinions fully.

Finally, practitioners need to be prepared to return to the primary reports and use those documents as the main tools for examining the experts. There is a strong tendency for the joint report to ‘supersede’ the primary reports; however, the joint report really should be seen as a document designed to narrow the issues, not redefine them. Concurrent evidence is a further discussion designed to narrow the issues even more, and allow the judge to weigh up competing arguments. However, an advocate’s thorough understanding of the primary reports will ensure that the experts (and the court) can be redirected where the discussion goes off-track or becomes unfocused and they can still be used to challenge experts in cross-examination. It will also ensure that sensible objection can be taken where necessary.

Dr Kathy Sant is a barrister at Maurice Byers Chambers, Sydney. PHONE [phone] EMAIL [e-mail].

Nicholas Broadbent is a barrister at Maurice Byers Chambers, Sydney. PHONE [phone] EMAIL [e-mail].

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^[1] Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 622.

^[2] Hudson v Howes & Ors [2010] NSWSC 1503, [2]. The other aims were to produce a joint report and to enable their concurrent evidence to proceed in an ‘orderly and efficient manner’.

^[3] Halverson v Dobler [2006] NSWSC 1307, [110].

^[4] Practice Note SC Gen 11, [30]-[31].

^[5] Ibid, [21].

^[6] UCPR 31.24(6).

^[7] Practice Note SC Gen 11, [27].

^[8] UCPR 31.26.

^[9] X v Sydney Children's Hospitals Specialty Network & Anor (No. 5) [2011] NSWSC 1351; Campton v Centennial Newstand Pty Ltd (No. 1) [2014] NSWSC 304.

^[10] See, for example, BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [121] - [122] per McClellan CJ.

^[11] P McClellan, ‘New Method with Experts – Concurrent Evidence’ (2010) 3 Journal of Court Innovation 259 at 264.

^[12] Willett v United Concrete Pty Limited and Anor [2009] NSWSC 957, [55].

^[13] Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414, [46].

^[14] Ibid [43], quoting Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288, [60] (Giles JA).

^[15] John v Henderson (No. 1) [2013] NSWSC 1435.

^[16] Ibid [19] – [26].

^[17] Ibid [26].

^[18] Steven Rares, ‘Using the ‘Hot Tub’ – How Concurrent Evidence Aids Understanding Issues’ (speech to the NSW Bar Association CPD Seminar, 23 August 2010).