Engaging Expert Witnesses during the Pandemic

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With the implementation of social isolation policies, digital communication and eCourtrooms will now become the main format for conducting trials. Whilst Courts have released guides on virtual proceedings, the pandemic restrictions will no doubt affect the conduct of matters outside of court as well.

The Queensland Supreme Court in its Judgement for Tyndall v Kestrel Coal Ptd Ltd [2020] QSC 56 is the first personal injury case in Australia to hand down orders in relation to Coronavirus infection prevention.  The straightforward manner in which the court dealt with the circumstances of the pandemic presents some handy advice on how to engage and work with expert witnesses in the context of travel bans and social distancing measures.

Case Summary

Mr Tyndall was a miner who alleged that operation of various equipment on his worksite had resulted in his developing vibration-induced white finger syndrome. The Defendant requested that the Plaintiff be examined by both a vascular surgeon and a rheumatologist. The plaintiff agreed to an examination by the latter but not the former. [2]

After discussing the obligations of claimants under section 282 of the Workers’ Compensation and Rehabilitation Act 2003 (‘WRCA’), the Court concluded that the circumstances were not unduly unreasonable nor repetitious so as to relieve Mr Tyndall of the obligation to visit a vascular surgeon nominated by the Defendants. [23]

In addition to the decision on the scope of the WRCA, the parties sought various procedural orders from the court, including on the means of facilitating the medical examinations in conformity with Covid-19 social distancing policies. They agreed on the need for orders from the Court which could provide for issues regarding physical contact and travel that the plaintiff and experts may encounter due to coronavirus-related policies and health concerns. [26]

Ultimately, the Court made orders allowing for the possibility of a remote medical assessment. It held that: ‘In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the [medical examiners]. [28]

What should Lawyers and Experts keep in mind?

Courts will first address issues of law regarding expert witnesses before making orders regarding how best to accommodate the provision of expert witness assessments and reports. This case indicates that courts will assist parties with case management issues, down to the level of plaintiff-expert communications and the terms of expert engagement.

In order for matters to progress as smoothly as possible, we suggest considering the following steps when engaging an expert witness:

1. Consult your Expert

It is conceivable that in some cases it may not be obvious to courts what alternatives exist to allow expert witnesses to conduct their examinations without infringing on infection prevention policies. In such cases, parties will benefit from attending directions hearings prepared with reasonable and effective alternative methods of allowing expert witnesses to conduct their examinations. This will require consultation with experts before the hearing in order to gauge what options are available in the first place.

It is equally important in these circumstances that experts inform their instructing lawyers if any proposed alternative to onsite or in-person examination substantially compromises the accuracy or reliability of their reports. As experts hold a duty to assist courts impartially, they are not permitted to substantially compromise the standard of reporting in order to suit the needs of either or both parties.

2. Consult the other side

As the circumstances surrounding the COVID-19 pandemic continue to unfold, the cooperation of parties in agreeing to alternative arrangements for expert examination and reporting will become crucial in managing cases effectively. Even where expert witness examinations do not require the involvement of any person from the opposing party, consider that encumbrances on the pace of filing and court documentation may still occur because of the need to cater for alternative reporting methods.  

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