Expert Postcards Following directions 18/11/2014

18 November 2014
Dailhou v Kelly; State of NSW v Kelly (No 1) [2014] NSWSC 1213; Dailhou v Kelly; State of NSW v Kelly (No 2)
[2014] NSWSC 1207
The Supreme Court of New South
Wales confined the use of an expert’s
report to a single issue because its
author had not attended an expert
conclave and it addressed other
matters that went beyond the Court’s
directions.
The case involved a primary school teacher, Mr Dailhou, who travelled to
Sydney to attend an education conference. In the evening, Mr Dailhou was
browsing in a nearby bookshop, when he was injured in a fall – allegedly from
the ground floor, down a flight of stairs, to the basement level. He sued the
bookshop owner for negligence.
The Court directed the plaintiff (Mr Dailhou) to serve a medical report on his
life expectancy by 20 May 2014.
The plaintiff served a report by Dr Buckley on 29 May 2014. Although no
point was taken about its lateness, the defendants objected to Dr Buckley’s
report on the basis that it addressed matters outside the remit relating to life
expectancy.
Specifically, the report expressed Dr Buckley’s views on ‘causation of the
accident, injury suffered in the accident, investigations carried out and
examinations carried out by Dr Buckley, causation, prognosis, requirements
for care, handyman and fitness for work’.
Dr Buckley had not participated in a joint conclave of experts attended by four
other doctors.
The Court considered that to allow all of Dr Buckley’s evidence would have
been inconsistent with the principles of case management and efficient
conduct of proceedings provided for in the Civil Procedure Act 2005 (NSW).
Although Dr Buckley’s report was admitted in its entirety, it was allowed only
on the question of life expectancy, and not the other matters.
This case reminds litigants and their lawyers to seek suitable directions from
courts before obtaining expert evidence and to comply strictly with directions
made. Failure to do so may waste some or all of the resources invested in
preparing the expert evidence, and may damage the litigant’s prospects at
trial.
“Directions made by the Court
for the orderly and efficient
conduct of proceedings ought
not be ridden over roughshod
by parties who serve reports
of experts who have not
participated in the joint
conclave process.”
Adamson J.
Matthew Ashby
Partner, Brisbane
+61 7 3834 9297
Other Forensic contacts
Greg Meredith
Head of Forensics
Partner, Melbourne
+61 3 9604 5118
Peter Holmes
Partner, Adelaide
+61 8 8100 7663
Wynand Mullins
Partner, Sydney
+61 2 9286 9921
Every month, Ferrier Hodgson examines the latest expert witness news. If you have any comments or suggestions, please email
Jessica Mead. If you know of others you think would be interested to receive Expert Postcard, please send us their details.
If you would like to change your subscription details click here and select "Want to know More?".
If you wish to see previous editions of the Expert Postcard click here.
Ferrier Hodgson is not a law firm and we do not present these summaries as legal advice.
For more information about our se rv ice s, ple ase contact one of our office s. Or find out more at:
www.fe rrie rhodgson.com:
Melbourne: Greg Meredith
+61 3 9604 5118
greg.meredith@fh.com.au
Sydney: Wynand Mullins
+61 2 9286 9921
wynand.mullins@fh.com.au
Adelaide: Peter Holmes
+61 8 8100 7663
peter.holmes@fh.com.au
Singapore: Tim Reid
+65 6416 1400
tim.reid@fh.com.sg
Brisbane: Matthew Ashby
+61 7 3834 9297
matthew.ashby@fh.com.au
Perth: Martin Jones
+61 8 9214 1405
martin.jones@fh.com.au