Tuesday, 11 November 2014
In this edition of expert matters our Forensic team discuss a case which found the appellant’s senior counsel and solicitors personally liable to pay 40% each for a respondent’s costs of the appeal for interfering with an expert’s report. This case highlights that the expert’s overriding duty is to the Court and not to be an advocate for its instructing party.
 

Background

This was a personal injury case on appeal from the Victorian Supreme Court. The appellant (‘Ms H’), a cleaner, fell whilst she was cleaning up a boys’ bathroom at a suburban school where liquid soap had been spilt onto the floor. 
 
Ms H was suing her employer, Scholastic Cleaning and Consultancy Services Pty Ltd (‘the first respondent’ or the ‘employer’) and the owner of school, Roman Catholic Trust Corporation for the Archdiocese of Melbourne (‘the second respondent’ or the ‘school’) for damages related to injuries sustained during the fall.
 
The trial, which was heard in front of a jury, resulted in judgment in favour of the two respondents. However, Ms H appealed that decision because of comments made by the second respondent’s senior counsel in his closing address at trial. Those comments related to the conduct of Ms H’s legal team regarding expert evidence during the trial.
 
The appeal was upheld as it was ruled that the comments by the second respondent’s senior counsel had prejudiced Ms H in the eyes of the jury. The case was ordered to be re-tried by the trial judge and Ms H’s senior counsel and solicitors ordered to each indemnify the second respondent for 40% of its liability to pay Ms H’s costs of the appeal, as their conduct had provoked the comments made by the second respondent’s senior counsel.
 

Issue

‘Mr D’, an engineer, was retained by Ms H’s solicitors to provide an expert report. He provided three reports, two both dated 9 April 2010 and the third dated 12 November 2012. This later report was not served.
 

Reports dated 9 April 2010


At trial 
It came to light during the trial that there were two versions of the 9 April 2010 report which differed primarily in the use of the word ‘not’ in relation to whether Ms H had reported previous incidents of vandalism in the toilet block. Under ‘Assumed facts’, paragraph 4.24 of the reports differed:1
 
“In one version paragraph 4.24 reads as follows:
 
Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed.

During evidence in the trial this version was referred to as the one ‘with the not’ [‘no prior vandalism’].
The other version at paragraph 4.24 reads as follows: 
 
Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.
 
During evidence in the trial this version was referred to as the one ‘without the not’ [‘prior vandalism’].” 
 
The ‘Documents and materials’ section of both reports stated that the ‘Assumed facts’ (including paragraph 4.24) were obtained from certain documents and an interview between Mr D and Ms H at the school at a time after the incident. “…Mr [D] was clear in his evidence at trial that the source of what was said at paragraph 4.24 was the appellant herself at the interview…”2 
 
The difference in the two expert reports first became apparent during the trial when Mr D was being examined in chief. He was being taken through his report by Counsel when it became apparent that Mr D was referring to the no prior vandalism report, whereas Counsel was referring to the prior vandalism report. Mr D identified the no prior vandalism version as being the correct one because it was consistent with his contemporaneous notes in relation to prior soap dispenser damage.
 
Mr D identified that the prior vandalism report was a draft which he subsequently corrected to no prior vandalism version to make things in line with what Ms H had told him in interview. He specifically denied that the alteration to paragraph 4.24 was as a result of any contact between himself and Ms H’s solicitors.
 
Crucially, this version was inconsistent with Ms H’s testimony at trial, which referred to prior vandalism.
 
On appeal
On appeal, additional material in the form of affidavits and submissions gave a different account as to the two versions of the 9 April 2010 expert report. In contrast to Mr D’s explanation at trial:
 
  • The first version was the no prior vandalism version. It was served on the respondents and also on a firm of solicitors acting in related litigation, who contacted Ms H’s solicitor and suggested there was an inconsistency in this report in relation to what was said about prior incidents of vandalism. Ms H’s solicitor contacted an employee of Mr D’s, and “As a consequence of that contact, and without any reference to Mr D himself, a new version of the report with the same date was produced and forwarded to the appellant’s solicitors containing the version of 4.24 ‘without the not’ (prior vandalism).”3 In respect of this, Mr D stated “it was ‘common practice’ for solicitors, including the appellant’s solicitors’ firm, to ‘liaise’ with members of his staff in relation to ‘typographical and other minor errors to be dealt with, which did not require review by me’. The appellant’s solicitors’ firm denied that and said “there was no general arrangement whereby amendments to reports would be requested and granted without review by Mr [D] personally.” 4
  • The second version was the prior vandalism report, but when it was served on the respondents, it was called simply an ‘updated report’. The significant change of fact was not identified in the covering letter, and the ‘Documents and materials’ section was unaltered.
Several issues were identified during the appeal process:
 
  1. The second version of the report (prior vandalism), was not in fact a report that Mr D had prepared and authorised.5
  2. The second version did not comply with Order 44 of the Rules6 as it failed to identify an important source of factual information, being instructions from Ms H’s solicitors.7 
  3. The relationship between Ms H’s solicitor and Mr D, which led to alterations without approval to the second version, was “inconsistent with the proper independence to be expert witness”8 Confusingly, at trial Mr D identified that the correct version was the first, no prior vandalism, version, but on appeal changed that view to identify that the correct version was the second, prior vandalism, version. 
 
“His position now that the version ‘with the not’ (no prior vandalism) is the incorrect one is a remarkable departure from his evidence in trial.”9 
 
 
We include a table below setting out the differing positions Mr D apparently took during the proceedings:
 
Report At Trial On Appeal
First version Prior vandalism No prior vandalism
Second version No prior vandalism Prior vandalism
'Correct' version No prior vandalism Prior vandalism


Tate JA summed:
 
“Whatever the motivations may have been, and whatever misunderstanding there were, the effect of what occurred as that [Ms H’s] solicitors altered the account of what the appellant has told [Mr D] in the course of his interview with her.” 
 

Report dated 12 November 2012

Cross examination at trial revealed the existence of a third report of Mr D, dated 12 November 2012 which was never served (a contravention by Ms H’s senior counsel of Order 44 the Rules11)12. The third report was based on Ms H’s senior counsel’s instructions which resulted in different ‘Assumed facts’ to Mr D’s previous report and conformed with the appellant’s evidence. Again, like the prior vandalism version of the 9 April 2010 report, the instructions or dealings with Ms H’s senior counsel were not disclosed in the ‘Documents and materials’ section. Whelan JA stated: “Thus, if the report were read in isolation it was open to be interpreted, in relevant respects, as an account of what [Mr D] had been told by [Ms H]... In that respect the report, on its face, was misleading.”13 
 

Counsel for the school’s closing address 

The situation surrounding the three expert reports of Mr D resulted in senior counsel for the school stating in his closing address at trial:
 
“This [referring to the alleged inconsistency in the versions of events] was recognised during the course of the trial by the legal team acting for [Ms H] and led to [Mr D] being instructed to alter his report and to change many of the assumed facts so that an appearance of consistency would be provided to you. If that had happened, then you would have been misled. [Ms H’s] legal team and [Mr D], however, didn’t get away with it. Their attempt at deception to you about the assumed facts was exposed.
- - - 
In this case [Ms H’s] legal team imposed on [Mr D] to abandon his duty to the Court for the purpose of obtaining a forensic advantage for [Ms H], namely, to present her as a reliable witness when indeed the opposite was true. [Mr D], acting in accordance with the rules of conduct, should have resisted that pressure and refused to alter his report because he would have honestly believed that he had set out her version of events as she narrated them to him out at the [school]. But no, you know, he prepared a third report meekly complying [with] the request of [Ms H’s] legal team.” 14
 
The trial judge’s refusal to discharge the jury following these remarks of senior counsel for the school was the subject of grounds 1-3 of the appeal. The inference that Ms H’s legal team was deceptive or sought to mislead the Court by interfering with the evidence of Mr D was deemed as unjustifiable and unfairly prejudiced the jury against Ms H. The “comments went beyond what was justified by the evidence as it then stood”15. However, the Court of Appeal found that:
 
“…in my view the fundamental cause of what went wrong in this trial, of which the unjustified statements by senior counsel for the second respondent were the culmination, was the manner in which the appellant’s lawyers dealt with the expert, [Mr D], and his reports. That would have been my conclusion had the issue been confined to what happened in relation to the 12 November 2012 report, but it is now fortified by what happened in relation to the two versions of the 9 April 2010 report.”16 
 

Findings

Responsibility for the miscarriage of the first trial was assigned to both parties – first to the school, but to a greater extent to Ms H’s senior counsel and solicitors, who provoked the comments made by senior counsel for the school. 
 
The majority in the Court of Appeal decided that Ms H, the appellant, should not be responsible for any costs associated with the appeal. Consequently, Ms H’s senior counsel and the solicitors were ordered to each indemnify the school for 40% of the second respondent’s liability to pay Ms H’s costs of the appeal. Tate JA stated:
 
“The set of forensic decisions made by [Ms H’s senior counsel] at trial clearly provoked the response made by senior counsel for the [school] that was the immediate or direct cause of the mistrial … the conduct of [Ms H’s solicitors] relating to the two versions of the 9 April 2010 report came close to the behaviour of which senior counsel for the second respondent wrongly complained at trial in relation to the 12 November 2012 report, namely, that [Ms H’s] legal team had sought to have [Mr D] alter his record of the version of events [Ms H] had narrated to him at the school … the existence of the two versions of the 9 April 2010 report contributed to the regrettable suspicion between the legal practitioners at trial and the misconduct since revealed further justifies the need for an adverse costs order to be made personally against the firm of [Ms H’s] instructing solicitors.”17

 

Significance

This case highlights three important aspects in the Expert Witness Code of Conduct :
 
  1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.
  2. An expert witness is not an advocate for a party.
  3. (c) Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide the facts, matters and assumptions on which each opinion expressed in the report is based;
 
Whilst experts are appointed by parties to a dispute, they have a primary duty to inform the Court of their opinion in their area of expertise. They must be an advocate for their opinion and not an advocate for their instructing party (this means disagreeing with the client if necessary). Experts must support their opinions by listing all instructions and sources relied upon.
 
The credibility of the expert and their opinion is lost if the instructing lawyers or counsel manipulate the report in a manner designed to assist their clients’ case. Experts must ensure that any changes to the report reflect their opinion and comply with all aspects of the Expert’s Code of Conduct – as it is their reputation that is at risk! 
 

Overseas decision

KordaMentha recently published a Forensic blog on this topic which related to a Canadian decision, Moore v Getahun19 in the Ontario Superior Court of Justice. In this decision the trial judge was highly critical of the way a medical expert [Dr T] discussed a draft copy of his report with counsel and made changes based on their suggestions stating “Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable”. For more information on this case you can view our blog here.


 
1. Para 22-24 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
2. Para 26 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
3. Para 33(f) of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
4. Para 33(g) of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
5. Para 35 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
6. Rule 44.03(2)(d) of the Supreme Court (General Civil Procedure) Rules 2005 which states: “The report shall state the opinion of the expert and shall state, specify or provide the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed).”
7. Para 37 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
8. Para 40 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
9. Para 41 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
10. Para 38 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
11. 44.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 2005
12. Para 109 of Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3 (6 February 2014)
13. Para 102 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 3 (6 February 2014)
14. ara 4 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 3 (6 February 2014)  Para 68 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
15. Para 68 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
16. Para 69 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
17. Para 3 of Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014)
18. Form 44A Expert Witness Code of Conduct of the Supreme Court (General Civil Procedure) Rules 2005
19. Moore v. Getahun, 2014 ONSC 237