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Expert Blog

Admissibility of Disagreements in Joint Expert Reports: Bezer v Bassan

The Purpose of Joint Expert Reports 

The purpose of joint reports is to aid in achieving the “just, quick and cheap” resolution of proceedings, as outlined in s 56 of the Civil Procedure Act 2005 (NSW). A joint report should identify the real issues in dispute, eliminate issues not in dispute, provide succinct presentation of the evidence of the experts on matters not agreed, and avoid or reduce the need for experts to attend court to give evidence.

Bezer v Bassan [2019] NSWCA 50 involved a joint report prepared by two experts that contained numerous disagreements. One of the issues on appeal was whether parts of the joint expert report that did not record agreement between the experts should have been admitted into evidence by the primary judge, with this being contrary to section 31.26(4) of the Uniform Civil Procedures Rules (UCPR).  This case is a pertinent reminder that lawyers and experts alike should ensure that joint expert reports align with the provisions of the court in which evidence is being given, or else risk expert evidence being rendered inadmissible.

Incident Summary

The appellant and his stepbrother, the respondent, were travelling in a vehicle that veered off the road, tumbling and rolling several times, before coming to a stop. The absence of any indication of braking suggested the driver fell asleep and crashed the vehicle due to fatigue.

The appellant suffered severe injuries, while the respondent was only slightly injured. The appellant claimed damages from the respondent in proceedings commenced in the District Court of NSW. The primary issue at the hearing was whether it was the appellant or the respondent who was driving the vehicle at the time of the accident. Each claimed the other was the driver.

The appellant engaged Dr Thomas Gibson to provide expert crash investigation evidence, while the respondent engaged Mr William Keramidas to provide expert evidence in the same area. The experts prepared individual reports and, following a conference between them, a joint report. They also gave oral evidence, both individually and together.

Appellant’s Objection to Tender of Sections of Joint Expert Report

There were various points of disagreement between the experts. These included whether the driver’s seatbelt was in use, the trajectory of the vehicle after it left the road, and whether the seatbelt could span the appellant’s girth.

Ground 8 in the Notice of Appeal specified that:

The Primary Judge erred in law by over-ruling an objection by the appellant to the tender by the respondent of material in joint experts’ reports going beyond matters that were the subject of agreement by the experts, contrary to UCPR 31.26(4) and thereafter erroneously had regard to such material when making her central findings of fact”. [56]

Rule 31.26(3), of the UCPR states that joint reports may be tendered at the trial as evidence of any matters agreed. Rule 31.26(4) states that, in relation to any matters not agreed, a joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.

The only disagreement identified by the court as being material was the issue of whether the driver’s seatbelt was applied at the time of the accident. Mr Keramidas opined that the driver’s seatbelt was not worn at the time of the incident, while Dr Gibson claimed he had insufficient information to express an opinion.

The section of the joint report containing Dr Gibson’s opinion was not tendered. The primary judge accepted Mr Keramidas’s views and there was no challenge to the finding on appeal.

The focus of the appeal submission, then, was the admission of the opinion of Mr Keramidas, despite being in disagreement with Dr Gibson’s opinion.

Is it Admissible?

The opinions Mr Keramidas expressed in the joint report were consistent with his views in earlier individual reports, which had already been admitted into evidence. As the admission of that evidence of the opinion was not challenged on appeal, the court found it was equally justified in admitting the further expression of it in the joint report. Rule 31.26(4) was thus applicable to render the evidence admissible.

The appellant then made a further submission which contended that “almost all the rest of the joint report concerned answers to questions that were not the subject of agreement” and therefore should have not been admitted. He conceded, however, that none of these answers were critical to the outcome of the case.

Takeaways

This case is a pertinent reminder that lawyers should consider and ensure that joint reports prepared in their matters meet the requirements of any relevant court provisions, whether the UCPR, or otherwise. This is particularly relevant in cases where new opinions appear in supplementary or joint reports, or previously stated reasoning changes.

Considering that in many expert conclaves lawyers are not permitted to be present, lawyers should also ensure that their experts are aware of any relevant provisions that may affect issues of admissibility.

Generally, evidence in joint expert reports is admitted only as much as it is helpful, clear, and necessary in resolving issues in dispute. Portions of a report may be considered inadmissible if they do not assist in clarifying matters in dispute.

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