A warning for experts and those who brief them

Whilst not medical negligence claims, we draw your attention to three recent District Court of NSW decisions of Her Honour, Gibson DCJ concerning applications for approval of infant settlements (Saleh by his tutor Abusaleh v Li [2017] NSWDC 305; Kandil by his tutor Kandil v Halliday [2017] NSWDC 327; and Tartak by her tutor Tartak v Zada [2017] NSWDC 330).  In each of these claims which involved motor vehicle accidents, Her Honour took issue with the expert evidence of the plaintiffs’ psychiatrist, who was the same expert in all three matters.

Specific issues noted in the judgments by Gibson DCJ in relation to this expert included:

1. a failure to correctly interview and diagnose the plaintiff;
2. the Court’s refusal to approve settlements having regard to the expert’s opinions as, if accepted, this would suggest that the settlement was not sufficient;
3. the allocation of an inappropriately large whole person impairment having regard to the diagnosis made;
4. the expert’s opinion being out of proportion to the few symptoms suffered by the motor vehicle accident; and
5. the similarities in the expert’s reports across different matters suggesting a ‘cut and paste’ rather than an actual diagnosis and compliance with the Code of Conduct for Expert Witnesses.

In the decision of Saleh by his tutor Abusaleh v Li, settlement was not approved and the matter was stood over with a direction that the plaintiff obtain additional psychiatric evidence to enable the Court to determine if the settlement was appropriate. That was because the Court found that the plaintiff’s expert psychiatric report was in stark contrast to the benign views taken by the plaintiff’s treating child psychologist and general practitioner. The purpose of requiring the plaintiff to obtain a further report from an alternative expert was to see if the plaintiff’s expert’s views were in fact correct, and if not, then the application for approval could proceed.  Gibson DCJ stated that the Court has an obligation to ensure that settlements involving persons under a disability accurately reflect the quantum of the claim, which is why the procedure under ss75-77 Civil Procedure Act 2005 (NSW) was established.

In both Kandil by his tutor Kandil v Halliday and Tartak by her tutor Tartak v Zada, Her Honour stated that having regard to the manner in which the reports of the expert in question failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, the expert and the reports were to be referred to the HCCC.

Post by Emma Ellis and Karen Kumar