Lawyers and expert at risk for costs
A case study in the importance of compliance with overarching obligations, O44 and the Expert Code of Conduct by lawyers and experts and the serious consequences that can flow from any non compliance.
The hapless plaintiff, Mrs Hudspeth, has finally succeeded in obtaining an award of damages against her employer for injuries she sustained in 2005 when she slipped on a soapy mess she was cleaning up in a school toilet block. She commenced her proceedings in 2009. Her success comes after the jury in the first trial found against her. An application made on her behalf in the course of final addresses to discharge the jury had been rejected.
The events giving rise to that application prompted the trial judge, Dixon J, to instigate an inquiry under s29(1) of the Civil Procedure Act 2010 (Vic) (CPA) into the conduct of the plaintiff’s lawyers and one of her experts. Their conduct highlights the critical importance of compliance with overarching obligations and O44 concerning the use of expert evidence, and the consequences of contravention. After the jury decision against her, Mrs Hudspeth appealed the trial judge’s decision not to discharge the jury.
Court of Appeal
A majority in the Court of Appeal (Tate and Whelan JA) allowed the appeal and remitted the matter to the trial judge for determination. Dixon J completed the trial and awarded damages against the employer. His Honour also separately completed his inquiry and has found that the plaintiff’s senior counsel breached s21 of the CPA (obligation not to mislead or deceive) and s26 (obligation to disclose existence of documents) in relation to the third report. His Honour further found that the expert breached s21 and failed to adhere to the Expert Code and that the plaintiff’s solicitors had breached s26 (but not s21) concerning the third report.
The consequences of those contraventions is yet to be determined. What led to this? In essence, the problem arose because the expert produced three differing versions of his report, the last of which was found to have been altered at the suggestion of senior counsel. The alterations went to the facts on which the expert proceeded. At least some facts were obtained directly by the expert from the plaintiff during a visit to the school. The change to the second report contradicted a fact which the expert had been told by the plaintiff; namely that she had not previously seen evidence of vandalism of the soap dispensers. The change was made by the expert’s assistant without his prior approval but adopted by him. The change was not marked up and nor was the date of the report changed. The difference between the two reports became know when the first report was served with the order of 44 statement.
Plaintiff’s senior counsel realised on the eve of trial that there were inconsistencies in the history of events between an early statement of Mrs Hudspeth and the facts recited in the expert report. He dictated a series of further changes to the assumed facts to the expert’s secretary which were incorporated into a third report and thereafter agreed between counsel and the expert. The signed version of the third report was provided to plaintiff’s senior counsel (but not the solicitors) but it was never served. Its existence came out in the course of cross examination of the expert about the inconsistency between his first and second reports. None of Ms Hudspeth’s lawyers or the expert volunteered the existence of the third report when opportunity arose during the trial. This led to the unhappy events which have unfolded.
Order 44.03(3) provides that where an expert has changed his or her opinion on a material matter expressed in an earlier report or where a supplementary report is provided it must be served on all parties forthwith. In default of such service neither the earlier report or the supplementary report can be relied upon without the court’s leave. Had the third report been served as required, leave may or may not have been given to rely on it but certainly the matter would not have evolved the way it did.
In final addresses, senior counsel for the school suggested that the events surrounding the various iterations of the expert’s report was due to the plaintiff’s “legal team” instructing the expert to change his report so as to provide consistency and thus to mislead the jury. This led to the plaintiff’s discharge application which was refused. The trial judge was of the view that there was sufficient grounding for the comments. He sought to deal with the matter in his summing up but the majority in the Court of Appeal effectively reasoned that this was too little too late (coming 7 days after the offending statement).
Although the appeal was successful Tate and Whelan JA made clear that they considered the primary reason for the miscarriage of the first trail lay with the plaintiff’s senior counsel and her solicitors. The plaintiff/appellant received her costs of the appeal from the school but her senior counsel and solicitors (at the trial) were ordered to contribute 40% each towards the school’s liability for those costs. The plaintiff’s senior counsel and lawyers were also denied any of their own costs. The costs of the trial itself were reserved to Dixon J.
The above highlights the importance of compliance with the CPA, O44 and the Expert Code. Experts work on facts and assumptions. It is the lawyers’ responsibility to get these right. It is also their responsibility to check and understand the report received. Errors and omissions can be cured if promptly addressed.
Courts are increasingly moving towards parties agreeing the facts and assumptions on which expert opinion is to be provided. Lawyers must comply with the provisions of Part 4.6 of the CPA, notably s65G which provides to the effect that unless the court otherwise orders a party must seek directions as soon as practicable if it intends to adduce expert evidence at trial, or becomes aware that it may do so.
  VSC 14
  VSCA 3
  VSCA 78; Warren CJ, who dissented in the appeal, agreed with the remitter and the orders for costs
 The plaintiff having settled with the school shortly before the remitted hearing proceeded;  VSC 542
  VSC 567; summary of findings at  –
 Plaintiff’s senior counsel decided not to serve the third report but to deal with the changed circumstances in a different way;  VSC 567 at 
Ian Percy – CommBar profile