Stewart v Fehlberg[2008] QSC 203

SUPREME COURT OF QUEENSLAND

[1] McMEEKIN J: There are two applications before me in which each of the parties seek directions principally as to the calling of expert witnesses.  The directions sought are that the respective parties ‘be permitted to call’ those witnesses who it is proposed will express expert opinions in the matter.  The applications were apparently prompted by a belated recognition that there ought to be at least some attempt to comply with the provisions in the Uniform Civil Procedure Rules contained in Part 5 Chapter 11.  In saying that I should record that the plaintiff’s submission was that there was no requirement on the parties to seek the directions sought in the applications. 

[2] The defendants’ application went further in seeking an order that ‘pursuant to Chapter 10 of the Uniform Civil Procedure Rules that one expert be permitted to be called in relation to each medical condition’. 

[3] The defendants also sought leave to file and serve an amended defence.  That was not opposed.  The matter has become complicated as one of the defendants’ experts, Dr Alison Reid, a neurologist, has diagnosed that the plaintiff is now suffering from Parkinson’s disease.  As the plaintiff concedes, in justice, the defendants must be allowed to raise that issue.

The Nature and Progress of the Claim

[4] The plaintiff’s claim is for damages for personal injury allegedly sustained as a result of an electric shock suffered at the premises of the first defendant whilst he was in the employ of the second defendant.

[5] The plaintiff asserts that the electric shock injury occurred on 5 February 2000.  The claim and statement of claim was filed on 31 July 2002.  On 23 July 2007 a further amended statement of claim was filed in which the plaintiff pleaded a left shoulder injury for the first time.  The trial in the proceedings is set for hearing on 22 September next – about three weeks away. 

[6] There is substantial debate between the parties as to what, if any, injury was sustained by the plaintiff as the result of any electrical shock.  To that end reports have been obtained on both sides of the case (the defendants being represented by the same solicitor and counsel) from witnesses having expertise in various disciplines including psychology, neurology, orthopaedic surgery, psychiatry and finally from general physicians, two of whom claim, or are said to claim, expertise in electrical injuries.  These reports have been obtained without regard to the expert evidence provisions in the Uniform Civil Procedure Rules contained in Part 5 Chapter 11 and without regard to the requirements of Practice Direction 2 of 2005. 

Does the Court Have Power to Prevent the Calling of a Witness?

[7] Mr Morton, who appeared for the plaintiff, submitted that there is no express power in the Court to force a party to call only one expert save and unless the Court has itself appointed an expert whether on application by one of the parties or otherwise.  Mr Morton relied on Rules 429I, 429J, 429N(1) and (2). 

[8] Mr Morton also submitted that Practice Direction 2 of 2005 does not compel either party to make application to the Court.  That was so because of the involvement of the employer as second defendant.  The provisions of the WorkCover Queensland Act 1996 govern the plaintiff’s claim against that defendant.  Paragraph 6 of the Practice Direction expressly provides that paragraph 5 of the Practice Direction, which is the provision compelling parties to apply to a court for directions, does not apply to a proceeding for a claim under the WorkCover Queensland Act 1996.  This is such a proceeding on his submission. 

[9] He pointed out as well that the Practice Direction came into effect on 12 April 2005, long after the proceedings in this matter commenced.  He submitted that paragraph 4 of the Practice Direction does not therefore apply.  It reads:

‘Either before commencement of any such proceeding, or soon afterwards, a party intending to call expert evidence on a substantial issue should raise with all other parties the prospect of their jointly appointing an expert, who would become the only expert to give evidence on that issue (unless the court otherwise ordered) (rr 429G(1), 429H(6)).’

[10] Mr Morton submits that as the commencement of the proceedings and any time ‘soon afterwards’ had long since passed by the time the Practice Direction came into force, neither party was bound by it.

[11] To my mind these submissions should not be accepted.  The Court retains throughout control over its own proceedings.  Mr O'Driscoll, who appeared for the defendants, pointed out that there is express power in the Rules to limit the number of witnesses, including expert witnesses, that a party may call on a particular issue:  Rule 367(3)(d). 

[12] Further, Mr Morton’s submissions pay scant regard to the purpose behind the introduction of the rules relating to the receipt of expert evidence contained in Part 5 Chapter 11 of the UCPR.  The purposes of Part 5 were explained in Rule 423 to include:

‘(a)...

(b)Ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court;  and

(c)Avoid unnecessary costs associated with the parties retaining different experts;  and

(d)Allow, if necessary to ensure a fair trial of a proceeding, for more than one expert to give evidence on an issue in the proceeding.’

[13] Those rules were introduced in July 2004 and prior to the retention of any of the experts in these proceedings, according to the submissions received from the bar table.

[14] Thus by the time these various experts were retained to assist in the matter, Rule 429G was in place.  Whilst the plaintiff side did inform the defendants solicitors of their wish to engage a Dr Fish there was no real attempt to agree to a joint expert, so far as I can discern from the material, in relation to any of the disciplines said to be relevant here.  In those circumstances subrule 429G(2) provided:

‘(2)If parties to a proceeding are not able to agree on the appointment of an expert, subject to Rules 429I and 429K, any party who considers that expert evidence may help in resolving a substantial issue in the proceeding may apply to the court for the appointment of an expert to prepare a report on the issue.’

[15] Rule 429I then set out the procedure that was to be followed on such an application.  The rule required that the party applying for the appointment of an expert name three experts who were qualified to give expert evidence on an identified issue and the court was then to appoint an expert based on the material before it, not necessarily restricted to the three nominated.

[16] Mr Morton’s submission was that subrule 429G(2) was not mandatory in its terms – it providing that a party ‘may’ apply to the court, not ‘must’ apply, should that party perceive a need for expert evidence.  He contrasted those provisions with the mandatory terms of paragraph 5 of the Practice Direction requiring a party to file an application for directions.  The intention expressed in paragraph 6 of the Practice Direction to exclude proceedings for a claim to which the Motor Accident Insurance Act 1994 and the Workers Compensation Rehabilitation Act 2003 or its predecessors meant, he submitted, that parties to such a proceeding were at liberty to appoint whatever experts they pleased and to call them. 

[17] I am not at all convinced that that was the intention of the requirements in the Practice Direction or that sub rule 429G(2) was meant to be merely permissive.  As to the first point, the claims to which the Acts referred to in the Practice Direction apply were ones where inevitably medical reports, at least, would have been obtained prior to proceedings and where the legislation required that the actions be certified as ready for trial prior to the mandatory conferences that preceded the commencement of the proceedings. Thus it was evidently wasteful to then mandate an application for directions concerning the obtaining of expert evidence in every case. But when the parties did perceive that new evidence was required then regard had to be given to the rules and the purpose behind them.

[18] As to the second point, rule 429G has virtually no purpose if all it did was to remind litigants and the profession that they were entitled to seek directions from the court about the calling of evidence. The evident purpose of Chapter 11 Part 5 of the UCPR was to put in place a regime controlling the calling of expert evidence. Parties who choose to ignore the rules do so at the risk that the evidence may be rejected when it comes to the attention of the court that the intent behind the rules and practice direction has been ignored. That was the approach adopted by Cullinane J in Moore v Queensland Rail & Anor., an unreported decision from the Mackay circuit court.

[19] In any case the Court retains its inherent jurisdiction to control its own processes and the rules contained in Part 5 Chapter 11 of the Uniform Civil Procedure Rules provide guidance as to how that inherent jurisdiction should be exercised.

[20] I approach the applications then on the basis that there ought ordinarily to be only one expert in any given field and I should permit multiple experts only if the justice of the case so requires.

The Discretionary Factors

[21] At this stage of course I am in no position to judge the validity of the competing opinions or to consider what, if any, alternative experts might be better placed to assist the court.  Neither side has put forward a panel of three qualified experts to be appointed as the one expert in relation to each of the disciplines relevant.  Both sides wish to be permitted to call those practitioners that they have already engaged.  I am in no position to choose between those various experts as one having any greater or particular expertise that would be of assistance. 

[22] Of significant concern is the cost position – the parties have substantially prepared for trial and the trial is now only weeks away.  To discard the work undertaken by these various experts and insist on a single expert at this late stage would be wasteful.  Balanced against that is the taking up of the time and resources of the Court in hearing and deciding between multiple experts, but there is no guarantee that there will be any significant saving, at least in this case, on that ground.

[23] Subject to what I have to say about two of the experts that the plaintiff wishes to call it seems to me that the interests of justice will be best served by permitting the parties to call the practitioners that they have already engaged.

The Electrical Shock Injury Experts

[24] The reservation that I have relates to the plaintiff’s application to be permitted to call a Dr C Andrews and a Dr R Fish.  It is said that both those men have particular expertise in electrical shock injuries.  Dr Andrews’ qualifications include those of engineer as well as general medical practitioner but with a special interest in electrical shock injuries.  Dr Andrews’ formal academic qualifications include a degree in Bachelor of Engineering (Electrical – Control) with first class honours (his honour’s thesis being in relation to ‘Computer Control and Optimisation of Renal Dialysis’), a Master of Engineering Science (with his thesis topic being ‘Development of a Micro-processor Controlled Digital Plotter’), a diploma of computer science, an MBBS with second-class honours awarded in 1982 and a PhD awarded in 1993, his thesis topic being ‘Studies in Aspects of Lightning Injuries’.  Whilst Dr Andrews is a general practitioner his curriculum vitae indicate that his current area of medical practice is in anaesthesia and intensive care with specialty interests in obstetric, paediatric and dental anaesthesia and ‘ICU’ (which I take to be a reference to intensive care unit).  His curriculum vitae also indicate an interest in ‘electro-medicine generally and especially in the high voltage context’ and refers to numerous publications of his, many of which relate to electrical and lightning injuries.

[25] Dr Fish is a research professor in bio-engineering at the University of Illinois.  He would seem to have somewhat similar qualifications to Dr Andrews.  His curriculum vitae indicate that he obtained a ‘B.S.’, which I take to be a Bachelor of Science, in electrical engineering with ‘high honours’.  He obtained a ‘M.S.’, which I take to be a Master of Science, in electrical engineering followed by a PhD in bio-mechanical engineering in June 1972.  He obtained an ‘M.D.’ which I take to be equivalent to an MBBS, in June 1976.  Dr Fish has worked as an emergency physician for 25 years (since 1977) and has been an emergency department director for eight years.  He too has published extensively.  Some of his papers relate to electrical injuries.

[26] Mr O'Driscoll, for the defendants, does not concede that there is any recognised area of expertise relating to electric shock injuries.  No evidence was led one way or another on the point save that I was referred to the curriculum vitae of Drs Andrews and Fish respectively.  I have referred to Dr Andrews’ medical practice above. So far as his practical experience goes Dr Fish refers to treating approximately 50 patients with electrical and lightning injuries over a period of 25 years.  As well he records that he taught a course on the ‘physiology of electrical injury’ at the University of Illinois.  He does not say over what period of time he taught that course, nor was I referred to any section of his curriculum vitae in which he asserts that the study of electrical injuries is a specialty study.

[27] Dr Fish has not seen the plaintiff.  In this he can be contrasted with Dr Andrews who has seen the plaintiff on a number of occasions over the years.  In his report Dr Fish examines the report of other practitioners and expresses his opinions as to whether the symptoms or signs recorded or observed are consistent with and caused by the alleged electric shock incident. 

[28] For present purposes my concern is that the plaintiff proposes to call two witnesses with substantially similar expertise (I note that Mr Morton was not able to direct me to any significant difference in their expertise) one of whom has not seen the plaintiff but relies on his understanding what has been written in the reports of other medical practitioners.

[29] Because of the way in which the parties have gone about the preparation for trial, I am not given the information that I need to determine whether either of these alleged experts is necessary to help resolve the issues in the trial.  Of particular interest is the identification of the precise issue in the proceeding that needs the assistance of Dr Andrews and Dr Fish (or some other person claiming expertise in electrical injuries) which cannot be satisfactorily dealt with by the numerous specialists already retained by the parties.  So far as I can see from the material, neither Dr Andrews nor Dr Fish asserts that those having expertise in neurology, psychiatry, psychology or orthopaedic surgery are not appropriately equipped to address the question of whether a symptom of injury complained of is causally related to an electrical shock.

[30] It seems to me that if indeed there is a particular area of expertise involving electrical shock injuries, and if the symptoms of such injuries fall outside the area of expertise of those medical practitioners already identified by the parties, then this was precisely the case that cries out for the appointment of a person that the parties can both accept as an acknowledged expert in the field and upon whom the Court could rely to give the necessary guidance.  That can be best achieved, as the rules require, by the precise identification of the issue, the naming of at least three experts with relevant qualifications and with each party having full opportunity to put before the Court material to decide on the selection of an expert.

[31] Where, as here, that procedure has not been followed and where, as here, the trial is only weeks away, and where, as here, it is far from clear that there is any relevant area of expertise then I am not prepared to appoint an expert on my own initiative. I think it inevitable that the trial would be delayed substantially if I adopted the course of seeking a panel of three “experts” assuming there is the relevant area of interest.

[32] Drs Andrews and Fish fall into different categories.  Dr Andrews is a medical practitioner who has seen the plaintiff.  He is entitled to inform the Court as to his observations and opinions within his medical expertise (subject to the control the court retains over its processes). As I presently understand the plaintiff’s case, his opinions will be that the symptoms and signs that he has observed in the plaintiff are consistent with an electrical shock injury. 

[33] It seems to me that Dr Fish is in a very different category.  Mr Morton submitted:

‘Dr Fish on the other hand has conducted an historical review of all of the records and opinions expressed and against the published literature conducts an assessment of the validity or otherwise of the opinions expressed.’

[34] The phrase ‘opinions expressed’ is intended, I take it, to be a reference to the opinions expressed by other medical practitioners.  It seems to me that it would be a rare case where it is appropriate for one expert to effectively mark the report of another expert where the subject of the various reports has not even been seen.  It is not demonstrated that Dr Fish has any greater expertise than, or different expertise to, Dr Andrews in relation to electrical shock injuries.  It is not demonstrated that Dr Andrews is not quite capable of carrying out a historical review of the medical records relating to the plaintiff and nor is it demonstrated that Dr Andrews cannot review the relevant published literature and indicate why it is that that published literature supports his contention of the causal connection. 

[35] Effectively the plaintiff seeks to support Dr Andrews’ opinions by the calling of another expert with more or less the same qualifications, but with the grave disadvantage of never having seen the plaintiff. The difficulties in cross-examining Dr Fish on the opinions of third parties, and who it is proposed to call by telephone from the United States of America, are manifest. I should say that I am in some considerable doubt as to whether Dr Fish’s views on whether the opinions expressed by other experts conforms with ‘published literature’ is indeed relevant to any issue that I have to decide.

[36] Mr Morton has drawn my attention to the remarks of Thomas J (as he then was) in King v Nolan [1992] 2 Qd R 498 where his Honour was dealing with the exclusion of evidence not disclosed allegedly in breach of the relevant rules of court.  Thomas J said:

‘In the absence of a specific provision requiring the exclusion of relevant evidence it is unthinkable that a court should or could exclude relevant evidence as a means of some sort of sanction or punishment for breach of a procedural rule.  Whilst there are certain recognised areas in which a judge has a discretion to exclude admissible evidence, especially in criminal jurisdiction, in general he has no right to deprive a party the right to call relevant admissible evidence.’

[37] Here there is no suggestion that Dr Fish’s report ought to be excluded as a sort of sanction or punishment for breach of a procedural rule.  Rather, the issue is whether a party should be permitted to call multiple experts on an issue where it is not shown that it is in the interests of justice that the Court should receive the second report.

[38] It seems to me that the rules to which I have referred plainly evince an intention that the Court should receive evidence from only one expert on an issue, that if there are to be multiple experts then the onus lies on the party seeking to call the evidence to demonstrate that it is in the interests of justice that multiple experts be allowed and that onus has not been discharged here.  The nature of such a determination of course permits a review of the decision should different circumstances be demonstrated.

Mr Hoey

[39] The plaintiff applied for leave to call as an expert a Mr S Hoey.  No report has yet been obtained from Mr Hoey.  Mr Hoey is an occupational therapist.  No evidence was led as to why, at this late stage, the views of an occupational therapist were required.  In his submission Mr Morton related the need for an occupation therapist to this late issue of the alleged onset of Parkinson’s disease.  He frankly conceded that it was not shown that Mr Hoey had any particular expertise in distinguishing between the effects of an electric shock injury and the effects of Parkinson’s disease.  Again Rule 429I has not been complied with.  Given the absence of any demonstrated need for an occupational therapist, the absence of any particular expertise that might assist in the resolution of the relevant issues and the failure to comply with the Rules, I am not prepared to permit Mr Hoey to be called at this stage.

The Electrical Experts

[40] The plaintiff’s application seeks permission to call as an expert witness a Mr L Eadie.  Mr Eadie is apparently an employee of Ergon Energy who carried out testing of the equipment involved in the alleged electric shock incident.  Mr O'Driscoll informed me that his side too intended to call an employee of Ergon Energy who had also been involved in the testing, a Mr Andrews.  It seems to me appropriate that directions be given pursuant to Rule 429I UCPR, that is that the experts (and I assume that is what they are) meet and identify the matters on which they agree, the matters on which they disagree and the reasons why, and attempt to resolve any disagreement.  The parties have not given any consideration to this provision.  I will direct the parties to agree on a set of orders reflecting the requirements of Rule 429B or if agreement cannot be reached that they each provide me with the orders they think meet the case and I will give the necessary directions.

[41] Given the imminence of the trial, and the overlapping of some of the disciplines, it is not practical to insist on all the experts conferring and identifying issues on which they agree and disagree save in one respect. I was informed that Dr Todman is to examine the plaintiff in the near future to provide an opinion regarding the diagnosis of Parkinson’s disease. This is a discrete issue on which only he and Dr Reid, of the experts so far engaged as I understand matters, will provide opinions. If there is any disagreement between them then it should be a relatively simple matter to identify the matters relating to that diagnosis on which they agree and disagree and why there is any disagreement.

Directions

[42] I give the following directions:

(a)That the plaintiff be permitted to call the following persons as expert witnesses in these proceedings:

(i)Dr C Andrews;

(ii)Dr D Todman;

(iii)Dr C Cantor.

(b)That the first and second defendants be permitted to call the following persons as expert witnesses in these proceedings:

(i)Dr Maureen Field;

(ii)Dr Peter Boys;

(iii)Dr Edward Ringrose;

(iv)Dr Alison Reid;

(v)Dr Michael Likely.

(c)That within seven days the parties agree on an appropriate form of orders directing:

(i)Mr Eadie and Mr Andrews to meet and identify the matters on which they agree, disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

(ii)Dr Todman and Dr Reid to meet and identify the matters on which they agree, disagree (and the reasons why) in respect of the diagnosis of Parkinson’s disease and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

and failing agreement between the parties as to the appropriate form of orders, that the matter be re-listed for hearing forthwith for further direction.

(d) That the parties be at liberty to call Messrs Eadie and Andrews to provide expert opinion evidence as they may be advised in the event that there is disagreement between them;

(e) That the defendants have leave to amend their defence as they may be advised to assert the allegation that the plaintiff is now suffering from Parkinson’s disease and any consequential amendments thereby required.

(f) That the parties have leave to call expert witnesses to give evidence by way of telephone.

(g) That the parties have liberty to apply on the giving of two days notice.

[43] The costs of each application will be reserved.