Latest on expert evidence in professional negligence cases

A barrister is being sued for negligence in the NSW Supreme Court. The plaintiff sought to tender an expert report of a senior counsel to the effect that a barrister of ordinary competence would have appreciated from the start that the case he had run on behalf of the plaintiff had been hopeless. Mid-trial, the Court refused the tender of the report, and refused an application to tender a varied report with a view to curing the defects which prevented the tender of the original

The Court found that the witness, having 32 years’ practice in the relevant fields probably was qualified to give evidence about what competent lawyers would do in various situations in his fields of practice, even though the evidence of that competence had not been properly set out. At issue was a dispute arising from a conveyance, so there was a large body of practice to assess. Justice Brereton doubted the wisdom of the drafting of the report (‘In the circumstances faced by [the barrister]’, a careful and competent professional would have acted …), but found that this was not one of the numerous cases where the failure to articulate exactly what those circumstances were understood to be rendered the report bad.

By the time the barrister’s conduct fell to be considered, the case the expert said the defendant barrister should have appreciated to have been hopeless had gone against the barrister’s client. What rendered the report inadmissible was ex post facto reasoning backwards from the adverse judgment, an ambiguity in the report, and a lack of articulated reasoning (the two key paragraphs from the judgment are reproduced below). The report was nothing but assertion — just an ipse dixit. The decision is Lucantonio v Klein [2009] NSWSC 853. Justice Brereton summarised the relevant principles helpfully:

8 With the benefit of the helpful submissions of Mr Ashhurst of Senior Counsel, for the third defendant, it is possible for present purposes to summarise the relevant principles as follows (extracted primarily from the following authorities: Fox v Everingham & Howard (1983) 76 FLR 170, 178; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384, 402; Permanent Trustee Australia Limited v Boulton Permanent Trustee Australia Limited (1994) 33 NSWLR 735, 738; Rebelais Pty Ltd v Cameron [1993] ANZ ConvR 457; O’Brien v Gillespie (1997) 41 NSWLR 549, 557-558; MB v Protective Commissioner [2000] 217 ALR 631, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705 [59], [71]):

(1) In a professional negligence case, expert evidence is admissible of an accepted or standard professional practice, conduct or standard. Expert evidence is also admissible of what is commonly considered professional practice of competent and careful professionals in the field.

(2) Expert evidence is not admissible of what the expert would himself or herself have done in the circumstances, at least if that evidence is tendered to support the inference that other careful and competent professionals would have done the same things professionally; nor is expert evidence admissible of what as a matter of law reasonable care is required; that is a question of law for the Court and not for an expert.

(3) Expert evidence of what a competent and prudent practitioner would have done in the particular circumstances of the defendant is not admissible if, in effect, it is no more than one professional commenting on the conduct of another, at least in the absence of evidence that the expert has additional training, study or experience to demonstrate the acquisition of specialist knowledge of what a competent and prudent practitioner would do. However, expert evidence of what a competent and prudent practitioner would have done in certain circumstances may have been admissible if the witness has by training or experience such additional special qualifications or experience as to equip him or her to give evidence with competence of what the general body of competent and general practitioners would do.

(4) Where the expert witness does not sufficiently state the assumed circumstances of the defendant’s position on which the opinion is based, that may impact on the fairness to the defendant of admitting the evidence to such an extent as to warrant its rejection under (NSW) Evidence Act 1995, s 135, even if it is technically admissible.

(5) In any event, the expert must furnish the Court with criteria enabling the evaluation of the expert’s conclusion, including its essential integers and rationale.

(6) Where the professional field in question is that of law, expert evidence is not essential to making (or for that matter defending) a case of professional negligence, because the Court itself is sufficiently equipped to form an opinion about legal practice unaided by expert opinion. That is not to say that such opinion is inadmissible in such a case; to the contrary, it is admissible, but even where adduced it is not conclusive, and the Court is entitled to decide the case contrary to expert evidence where appropriate to do so.

Justice Brereton’s reasons for ruling the report inadmissible were:

’13 I turn then to the objection that Mr Epstein’s report does not sufficiently set out the basis and rationale for his opinion. Essentially, what Mr Epstein’s report does is to commence from the judgments of Austin J and Bryson J, to find that those judgments convincingly demonstrate that a proposition believed to be essential to the Lucantonios’ case against the vendor was fundamentally flawed, and to opine that a barrister would have recognised that from the outset and before the relevant judgments were given. The judgments of Austin and Bryson JJ were ex post facto in this case. What an expert would have to demonstrate was that there was current in the profession at the time of the conduct in question, knowledge, standard or practice applicable to the present circumstances. Mr Epstein does not descend to say, for example, that it was commonly discussed or acknowledged in the profession prior to those judgments that positions such as that adopted on behalf of the Lucantonios were untenable. He does not refer to any professional publications or judicial decisions, prior to those in this case, to demonstrate that that was so.

14 Apparently, his report proceeds on the basis that the reasoning adopted by Austin J and Bryson J ought to have been apparent at the outset to a barrister in [Mr W’s] position. One difficulty with that approach is that the judgments of Austin J and Bryson J proceed on different bases. Austin J found that there was no serious question to be tried, having regard to clauses 6 and 7 of the Standard Conditions of Sale. Bryson J found that the DA plans were not unbuildable, and touched on Special Conditions 31 and 40 of the Contract for Sale. It is simply impossible to tell, from reading Mr Epstein’s opinion, which particular line of argument he is opining should have been apparent to a barrister in [Mr W’s] position. In my view, his opinion is no more than an ipse dixit disclosing no rationale whatsoever. It is no more than one barrister, albeit it be an experienced and senior one, commenting on the conduct of another. In my view, Mr Epstein’s opinion adds nothing to what the Court could, on appropriate argument and facts, conclude itself. It does not meet the standard required of experts’ reports by Makita v Sprowles.’

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