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Case Study – Aitkenhead v Kaufline and Insurance Australia Ltd t/as NRMA Insurance (No 2) [2014] ACTSC 82 (15 April 2014)

Acknowledgment of Codes of Conduct

In this Case Study we consider the requirement, under the Court Procedures Rules 2006 (ACT), that expert witnesses be provided with a copy of the expert witness code of conduct when they are engaged by legal counsel and subsequently acknowledge that they have read and agreed to be bound by this prior to giving oral evidence. This rule is replicated in civil procedure legislation across the nation. We also consider the consequences of failure to do the above and when this may prove fatal to the expert evidence provided without such acknowledgment.

Facts

This decision concerns expert reports prepared by two surgeons in connection with the plaintiff’s case against the defendant. The facts of the litigation are not relevant to the specific issues raised in relation to the expert reports.

Counsel for the defence objected to the surgeons’ expert reports on the basis that the two doctors had not acknowledged in writing that they had read the code of conduct identified in Schedule 1 of the Court Procedures Rules 2006 (ACT), nor had they agreed to be bound by it. The experts did, however, acknowledge compliance with the expert witness code of conduct provided in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW). Counsel for the defence also noted that the plaintiff’s solicitors failed to provide either doctor with a copy of the relevant ACT code of conduct as soon as practicable after each doctor was engaged.

The defendant contended that these errors prevented the expert witnesses from giving oral evidence (under rule 1203(2) of the Court Procedures Rules 2006 (ACT) extracted below) and by virtue of rule 1203(3) of the same act rendered the service of the expert reports invalid.

Relevant Statute 

COURT PROCEDURES RULES 2006 (ACT) – REG 1203

Expert witnesses to agree to be bound by code of conduct

(1)     If a party to a proceeding engages an expert witness, the party must give the expert witness a copy of the code of conduct as soon as practicable after the expert witness is engaged.

(2)     An expert witness must not give oral evidence unless—

(a)     the expert witness has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceeding, that the expert witness has read the code of conduct and agrees to be bound by it; and

(b)     a copy of the acknowledgment has been served on all active parties affected by the evidence.

(3)     If an expert report does not contain an acknowledgment by the expert witness who prepared the report that the expert witness has read the code of conduct and agrees to be bound by it, service of the expert report by the party who engaged the expert witness is not valid service.

(4)     This rule does not apply to a doctor who has treated the plaintiff.

Relevant Authorities

Ample case law has considered the issue of noncompliance with a parallel provision of the UCPR (this being rule 31.23) which requires that expert witnesses are provided with, and subsequently adopt, a code of conduct.

In Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd (Hodder)[1], Young JA disagreed with the trial judge’s statement of principle on this issue. The trial judge had held that where an expert prepared a report without regard to the Code there was “a real risk that the expert will have committed to a particular form of opinion,” and hence an ex post facto adoption of the Code will not cure the problem. Young JA acknowledged the validity of this view but noted that it could not be elevated into a general rule. Rather, each case must be considered on its merits and the court is thus open to consider that the real risk was in fact non-existent or minor.

Commenting on Young JA’s holding in Hodder, Ball J in Welker v Rinehart (No 6)[2] (Welker) made the following comments:

In my opinion, it follows from what Young JA said that it is necessary to consider all the circumstances of the case in order to determine whether the objectives sought to be secured by UCPR r 31.23 have been affected by the non-compliance. Those circumstances include the nature of the instructions that were actually given to the expert, the expert’s prior familiarity with the code, the extent to which the report on its face appears to comply with the code and the evidence subsequently given by the expert concerning the question whether he or she complied with the code at the time and whether his or her opinions have been affected by non-provision of it. It is for the party seeking to lead the evidence to satisfy the court that the non-compliance with UCPR r 31.23 has not affected the objectives of the rule, or that there are other reasons which justify a departure from it.”

In Welker, the experts in question read the relevant code of conduct after preparing their reports and swore an affidavit acknowledging that they had read the code of conduct and confirming the opinions expressed in their reports. However, none of the experts confirmed that at the time of preparing the report they had complied with the code or were familiar with the obligations of giving expert evidence. The instructions to the experts did not explicitly require the expert to act independently, and rather contained language consistent with an approach which was not grounded in independence. As a result, it was held that the reports in Welker read as though the author saw their task as an advocate for the instructing party’s case. As a consequence, Ball JA was not satisfied that the requirements of the rules should be dispensed with.

Arguments 

Counsel for the plaintiff argued that the similarities between Schedule 1 of the Court Procedures Rules 2006 (ACT) and Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW) rendered the substantive content of the obligations under both codes identical. It was further argued that since the experts agreed to be bound at least by the equivalent code of conduct in New South Wales, there was sufficient basis for dispensing with the requirements of the rule. This argument was based on the circumstances of the current case where nothing in the letter of instructions suggested any partisanship, and where each of the doctors had previously given evidence in court and were likely to be well and truly familiar with the nature of the obligations under the Code.

Counsel for the defence, while accepting that the doctors had previously served as expert witnesses, drew attention to the shortcomings of the letters of instruction provided to the doctors. Namely, they highlighted that the instructions lacked copies of the expert witness code and references to the obligations under it, which are required under law to be provided to expert witnesses, to support their argument that the service of the expert witness reports should be held to be invalid. 

Held 

The Court in this case emphasised that the requirement to provide a copy of the Code to experts when they are retained attempts to establish a system which ensures that the terms of the Code are made evident to new and experience expert witnesses alike.

Despite this emphasis, the Court in Aitkenhead utilised its discretion to make an order under rule 6 of the Court Procedures Rules 2006 (ACT) to dispense with the requirements under rule 1203. The basis for this decision was as follows:

  • The experts accepted an obligation to comply with a code of conduct which was substantially the same as that required under the Court Procedures Rules 2006 (ACT).
  • The experts had been involved in court proceedings before and were likely to be aware of the obligation to prepare a report in a manner consistent with the Code and give evidence in a manner consistent with the Code.
  • Nothing in the letters of instruction or the terms of the reports provided any indication that the witnesses had not prepared their reports in a manner consistent with the Code.
  • Notice of the objection was only given shortly before the witnesses were called to give evidence, though the hearing commenced several months prior. 

Conclusion & Lessons Learnt 

Counsel should ensure that letters of instruction to expert witnesses contain a copy of the relevant expert witness code and that expert witnesses are made aware of their obligations under these in order to fulfil their obligations under rule 1203 (and equivalent rules across state based civil procedure rules). This will assist in preventing the potential inadmissibility of expert evidence due to the failure to comply with such rules. The Court specifically emphasised that legal counsel should be familiar with this obligation:

any solicitor purporting to be competent to accept instructions in a personal injury case in the Australian Capital Territory should be familiar with the obligations under rule 1203 and routinely give effect to those rules when instructing experts. Similarly, if the circumstances permit it, any such solicitor should take steps to attempt to remedy any defect of which they are aware in relation to their compliance with rule 1203”.

The Court in this case also noted the practice of some prudent legal counsel with respect to ensuring their expert’s familiarity with the code of conduct in requesting that their expert witness sign and return a copy of the relevant Code with their report. This practice is not specifically required by the Rules however it may be a sensible approach to ensure compliance with the requirements.

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[1]  [2011] NSWCA 279

[2] [2012] NSWSC 160