Judge offers expert evidence advice

Expert evidence must be relevant, the Queensland Law Society’s Personal Injuries Law Conference in Brisbane was told on Friday.

That caution was among the practical advice offered by Justice David Boddice when he delivered the keynote address to more than 80 practitioners gathered at Law Society House.

The Court of Appeal judge’s session dealt with the efficacy of expert evidence in the court, and it was chaired by Luke Murphy, an Accredited Specialist (Personal Injuries Law) and Deputy Chair of the QLS Accident Compensation & Tort Law Committee.

“Courts do not admit expert reports for entertainment. They are not diaries of psychological distress. They are not essays in medical theory. Their purpose is specific. It is to assist the court with the determination of matters outside ordinary human experience,” Justice Boddice said.

He said it was incumbent upon a practitioner to ask themselves: ‘what is the issue that the opinion is meant to address?’, and ‘is this person an expert in the field?’.

When a report from an appropriately qualified expert is received, the practitioner should read it carefully to ensure that it does, in fact, address the relevant issue, he said.

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“In the same way that irrelevant cross-examination is objectionable, so too is expert evidence that answers a question that no one asked,” Justice Boddice said.

“The report may be beautifully written, rich in references, and technically admissible but if it doesn’t address the question the court must answer, it is unhelpful.”

QLS President Genevieve Dee, Justice Boddice and
session chair Luke Murphy.

He said practitioners should also carefully read the report to ensure that it contains a clear and concise statement of the expert’s reasoning for the conclusion reached in respect of the relevant evidence.

“An expert must do more than merely assert a conclusion,” he said.

“The expert must explain the steps along the process of reasoning so that the judge, and also the advocates in challenging it, can understand what those steps are and where appropriate, challenge the legitimacy of a particular step.

“Courts are concerned not only with the credentials of an expert; they are more concerned with the logical process that connects their knowledge to their opinion and ultimately to the facts in dispute.”

Justice Boddice said the expert’s process must be available for scrutiny.

“The key assumptions upon which the expert opinion is based must be identified in the report, the material that the expert has relied upon must be identified in the report, and the relevance of the particular material to the opinion expressed must be identified in the report,” he said.

“I would caution that practitioners should always keep in mind that the court is not required to accept expert evidence merely because it is not contested.

“The court may give little or no weight to an expert opinion if it is not properly reasoned even if it is the only opinion before the court.”

Using case examples, Justice Boddice also reminded practitioners that an expert report “must not become a vehicle for advocacy or fiction” and “must be anchored in facts”.

“Many times, an expert report is just a recording of what the claimant says of their symptoms, not necessarily what is supported by the evidence or indeed what is contained in other medical reports,” he said.

“An expert report based solely on an acceptance of one side’s version of events, to the exclusion of a consideration of the other side’s version risks being found to be of little or no persuasive value.

“A report that does consider those things can be of extraordinary persuasive value to the trial judge because in those circumstances, a judge has the confidence that the expert has considered the very position that the judge ultimately concludes is the true factual position of the circumstances of the case.”

His Honour headlined a list of speakers at the full-day conference, which covered topics including the National Injury Insurance Scheme, psychosocial hazards, advancing instructions and common law claims.

The conference, worth seven CPD points, was followed by networking drinks.