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In the trial of this personal injuries case, the respondent’s credit was in issue. Without giving any notice to the appellant of his intention, the respondent’s counsel had invited the respondent’s medical experts to attend court to view the respondent’s evidence at trial and to furnish further reports, which they did. The appellant objected to the tender of the new reports. The trial judge allowed the tender of the new reports and refused to grant an adjournment for the appellant to obtain and furnish further reports in response. The Court of Appeal held that, the trial judge erred in allowing the tender of the fresh reports because he did not identify any “special reason” (see r 548(4) of the Uniform Civil Procedure Rules 1999) and the appellant was denied the opportunity to meet the new evidence. Further an adjournment was appropriate given the denial of procedural fairness to the appellant. In the circumstances, the court considered that a retrial was necessary.
Sofronoff P and McMurdo JA and Applegarth J
9 June 2017
Here, the court addressed fairness considerations surrounding the admission of fresh expert evidence which was critical to the outcome of a case, midway through a trial. The respondent was injured in a motor vehicle accident and the appellant admitted liability. Consequently, the only issues at trial were quantum and causation. . At trial, the most contentious injuries became the respondent’s alleged closed head injury and alleged resultant psychological injury, both of which were critical to quantum. . The respondent’s credit was “a major issue” during the trial  and it was evident that he had self-reported to the two medical experts whom he instructed. . The respondent, a resident of Germany,  departed the jurisdiction and was not able to be re-examined by any of the experts before trial. .
On the third day of the trial, after cross examination of the respondent had concluded, the respondent’s two medical experts informed counsel that due to their observations of the respondent’s evidence, they wished to furnish additional reports. , . The appellant’s counsel advised the court that he foreshadowed an objection to the proposed tender. . The following day, one of the two reports was tendered and, counsel for the appellant objected to its tender, relying on s 51B of the Motor Accident Insurance Act 1994 and rr 427, 429 and 548 of the Uniform Civil Procedure Rules 1999. . He argued that the appellant had been denied the possibility of meeting the new evidence because of the lack of notice provided by the respondent’s legal representatives regarding their intention to invite the two experts to observe the respondent give evidence and to give further reports based upon those observations. .
The learned trial judge gave leave to allow the fresh report to be admitted. . In due course, when the second fresh report was tendered, it too was admitted into evidence on similar grounds. .
Irregularities in the conduct of the trial
In its review of the matter, the court observed that given the particular constraints at trial, with the plaintiff being outside the jurisdiction for an extended time, it was understandable that his advisers might endeavour to supplement their reports with fresh opinions. That said, the court regarded their omission to do so prior to trial as unusual. . The court was also critical of the respondent’s legal representatives’ failure to notify the appellant about their intention to invite the two experts to observe the respondent give evidence, noting that it was “difficult to avoid the inference that the failure to disclose his presence was purely tactical”. .
The court concluded that the learned trial judge’s discretion miscarried in giving leave to the respondent to tender the fresh reports. The court identified a number of flaws in the conduct of the trial. Firstly, the primary judge had fundamentally erred because he relied on r 427 of the UCPR. The relevant rule was r 547. . Rule 548(4) contained an absolute prohibition against admission into evidence of a report that had not been disclosed in a personal injury proceeding as required by r 547, even if relevant and otherwise, apart from r 548(4), admissible. To overcome that prohibition an applicant must demonstrate a “special reason”. . This was a “material error of law that vitiated the exercise of discretion”. .
In addition, the admission of the fresh reports served to “not only deny the appellant an opportunity to meet new evidence by its own evidence” but also denied the court the benefit of such evidence. . Thirdly, the court found that his Honour had erred in identifying the issue of the respondent’s credit as apparently constituting a basis for the exercise of discretion under r 548(4). –.
Refusal of an adjournment
Counsel for the appellant also sought an adjournment, arguing that it was unfair that they had not been afforded a chance to overcome the prejudicial nature of the evidence and submitting that it was necessary to enable the appellant’s experts to have an equal opportunity to observe the plaintiff. . That application was refused. The trial judge expressed the view that it had been the defendant’s choice to elect not to avail itself of the opportunity of ensuring that its experts attend court and observe the plaintiff – a matter “for their own forensic consideration”. He also curiously observed that the defendant might have “alerted [its] experts to the prospects” of the respondents engaging experts to furnish reports “with the most contemporary of evidence”. .
The court regarded the above reasoning as problematic. Specifically, the President succinctly observed:
“… there was no occasion for the appellant’s legal representatives to have “alerted their experts to the prospects” of the respondents engaging experts to furnish reports upon the bases of facts that would be denied to their opponent’s experts. The Rules … create a reasonable expectation that parties will not engage in conduct such as retaining medical experts to make secret observations with the intention of tendering late reports ... The days of the well-plotted forensic ambush leading to victory have been well and truly over since at least the promulgation of Order 39 Rules 29A to 29E of the Rules of the Supreme Court 1900. ... No rational barrister would have expected his opponent to conduct the case in the manner in which this case was conducted for the respondent.” .
Taken as a whole (see errors identified at , , ), Sofronoff P expressed the view that the factors the trial judge took into account did not amount to any justification upon which to refuse to grant an adjournment but, instead, a reason to grant one. .
Noting that, critically, the fresh evidence had been expressly relied upon by the trial judge in his finding that the respondent had suffered a brain injury warranting substantial compensation, the court took the view that a retrial was necessary. .
A de Jersey