10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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HOW SHOULD WE USE EXPERT MEDICAL EVIDENCE
TO ASSIST IN FACT-FINDING?

Joan Dwyer OAM

Introduction

Two weeks ago, I retired on a compulsory age retirement after 21 years as a Senior Member of the Commonwealth Administrative Appeals Tribunal (“the AAT”). Over the last 21 years, I conducted many hundreds of Tribunal hearings. My estimate is that approximately 75% of them involved contested medical issues[1], mainly in Social Security, Workers’ Compensation and Veterans matters. When I came to the Tribunal, I already had reservations about whether the adversarial system was the best way of determining contested issues of fact[2]. My experience on the Tribunal has reinforced those concerns. I have formed the view that the adversarial system is not the best way to deal with expert evidence. Today I will focus mainly on expert medical evidence, but the same issues arise in respect of all expert evidence.

As I have written earlier[3], when I started questioning the merit of the adversarial system, shortly after I started practice as a litigation lawyer, it was almost sacrilege to do so in this country. Continental legal systems, on the whole, give the Courts an inquisitorial role, rather than the role of an umpire between the parties, which is the Anglo/American model. In Australia, a few eminent voices had questioned whether the current system was the best[4], but on the whole any criticism fell on deaf ears.

The problems relating to expert evidence in an adversarial system have been aptly described by Professor Langbein, an American legal academic. He wrote[5]:

German courts obtain expert help in lawsuits the way Americans obtain expert help in business or personal affairs. If you need an architect, a dermatologist, or a plumber, you do not commission a pair of them to take pre-ordained and opposing positions on your problem, although you do sometimes take a second opinion. Rather, you take care to find an expert who is qualified to advise you in an objective manner; you probe his advice as best you can; and if you find his advice persuasive, you follow it.

That seems to me to encapsulate the problem with the traditional way of calling medical evidence. We hear mainly from partisan medico-legal expert witnesses adopting pre-ordained positions, rather than from the experts most likely to be able to inform and assist the Court or Tribunal in understanding the medical issues.

Things have changed within the common law system a great deal over the last fifteen years. There is now recognition of the need for some management by courts of the litigation process[6]. Perhaps the changes are mainly in order to make courts and Tribunals more productive in terms of performance, and to reduce legal costs, but they also acknowledge that, even if the adversarial system is best, it is not perfect. Some of the most significant changes have been concerned with the calling of expert evidence, but it is still early days for any valuable evaluation.

The problems with expert evidence are not new. They were pointed out by Jessel MR in 1877 in Thorn v Worthing Skating Rink (1877) 6 Ch D 415, at 416:

…the mode in which expert evidence is obtained is such as not to give the fair result of scientific opinion to the Court. The man may go, and does sometimes, to half-a-dozen experts. … He takes their honest opinions, he finds three in his favour and three against him; he says to the three in his favour, Will you be kind enough to give evidence? and he pays the three against them their fees and leaves them alone; the other side does the same. It may not be three out of six, it may be three out of 50. I was told in one case…that they went to 68 people before they found one. … That is an extreme case no doubt, but it may be done, and therefore I have always had the greatest possible distrust of scientific evidence of this kind, not only because it is universally contradictory, and the mode of selection makes it necessarily contradictory, but because I know of the way in which it is obtained.

There does not seem to have been much improvement in the 125 years since.

Problems with Medical Evidence in Hearings

I have prepared a list of nine problems with medical evidence which I have encountered using the adversarial system. Some of you, both doctors and lawyers, may well have other problems to add to the list.

1. Unavailability of best medical experts

One issue is that often we do not get the best medical experts because they avoid litigation. They want to do medical work, not legal work.

2. Medico-legal experts – partisan opinions

The adversarial legal system has led to the development of a group of medical expert witnesses whose expertise is not confined to their medical specialty, but is more focussed on their willingness to be called as expert witnesses. Courses are taught to medical practitioners on giving evidence and books are published on the topic. I understand why, as giving evidence can be a daunting experience for a person who is not a lawyer, but what we really need are the medical opinions of medical expert witnesses, not their advocacy skills.

Unfortunately, in our adversarial system, there is a danger that, as was pointed out by Langbein, “[t]he more measured and impartial an expert is, the less likely he is to be used by either side”[7].

The High Court case of Vakauta v Kelly (1989) 87 ALR 633 is interesting. It was an appeal from a decision of the NSW Court of Appeal dismissing an appeal from Hunt J of the Supreme Court of New South Wales. When Hunt J was told that Counsel for the General Insurance Office (GIO) intended to call three named doctors, he referred to them as “that unholy trinity.” Later, during discussion with Counsel, His Honour referred to the GIO’s “usual panel of doctors who think you can do a full week’s work without any arms or legs.”

Clearly Hunt J’s comments were both indiscreet and exaggerated, but they do reflect a problem which is well known and should be recognised. Although the High Court allowed a new trial, their Honours acknowledged that a Judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of medical experts who are frequent witnesses. The High Court recognised that the system of administration of justice in personal injury cases could not function if such views meant that the Judge was disqualified from hearing that case.

Thus, it seems that the course to be adopted is that a Court or Tribunal should be discreet and keep its views to itself. Or would it be better to change the system so that we no longer have such partisan witnesses? The High Court did not consider that issue. Nor did it consider the fact that although a court or tribunal is aware of the bias of a particular medical witness, a jury takes that evidence at face value.

One would need to be naďve and gullible to believe that a court or tribunal does not recognize that certain expert witnesses, who are regularly called on behalf of one party, will give evidence in a way that most favours that party. In specialties where expert medical evidence is rarely called, there are no medico-legal specialists. Expert medical witnesses drawn from those in active practice usually have less of a tendency to see their role as one of advocacy, rather than giving an expert professional opinion.

Surveys of Australian judges’ and magistrates’ perspectives on expert evidence, conducted by the Australian Institute of Judicial Administration, have identified a perceived lack of objectivity as a concern held by judges and magistrates about expert witnesses[8].

3. Distortion of experts’ opinions by the legal process, in particular by cross-examination.

Sometimes an expert medical witness who is very knowledgeable in his or her field, and who has prepared a report setting out his or her opinion, will be cross-examined in terms of fine legal distinctions, or, one may say, pedantic semantics, so that the witness will appear to depart from the previously considered opinion. At the end of the evidence, it is not clear whether that represents a real change of opinion or whether the medical expert is simply thinking, ‘I’ll agree to anything to get out of here and get on with my real work’; or ‘you are completely misconstruing what I am saying but I can’t handle the argument with you in terms of legal distinctions any longer’. One issue which seems much more important to lawyers than to scientists is the distinction between a possibility and a probability. When a medical witness describes something as “the obvious possibility”, is that any different from saying it is the most probable explanation? Yet that can develop into an argument as to the legal significance of the words “possibility” and “probability” [9].

Recently I was told of a medical witness who, after a lengthy period in the witness box, said to the Court words to the effect of, “I’m sorry, this process just doesn’t seem to be allowing me to explain my opinion. Can I please just tell you what I think and why?”. I think we can all sympathise with that witness and recognise the problem he faced. The question is, what can we do to improve things? We must always make sure the expert is allowed to tell the Court or Tribunal “what I think and why”.

The situation was aptly described by a Dr Felix Meyer, who contributed to the discussion following a speech by Mr Charles Gavan Duffy to the Medico-Legal Society in 1932. He is recorded as saying that an expert witness went through three phases; firstly, “uncomfortable anticipation of an unpleasant experience” secondly, “ the still more uncomfortable experience of being cross-examined; and, thirdly, the dissatisfaction which arose from a feeling that by reason of procedural limitations he had been prevented from getting properly before the court just what his opinion was.”

That passage confirms an impression I often have, that the expert evidence has been so tailored by the legal process that we do not hear the true opinions of the experts. I had some confirmation that my perception can be correct at a dinner party recently. I was sitting beside an aviation engineer. There was some talk about hearing processes and he said that for some years he had been involved in a large piece of litigation, as one of a number of expert aviation engineers. He explained that the litigation had been protracted with a number of interlocutory steps, but he said there was only a narrow area of dispute between him and the other experts, all of whom were well known to each other because the field is very specialised. He felt sure that if he and the other experts had been given, perhaps a day, to discuss the matter freely between themselves, the whole issue could have been resolved years ago, at vast saving in time and money.

4. Wasting of time of medical experts

At times I have felt concerned, particularly for example when an eminent oncologist is giving evidence, that he could be doing much more useful work in his consulting room, rather than sparring with a lawyer who is trying to obfuscate the expert opinion, rather than allow it to be clarified. That problem is exacerbated where it is clear, even to me, that the person cross- examining has not understood some of the basic concepts relevant to the field of expertise. The witness either has to start explaining from the most basic level, or simply becomes impatient with the process, and as I said before, just lets it happen in order to get away. The problem is particularly worrying because of a current shortage of doctors in some specialties, particularly in rural areas. In a recent matter of Re Harrington and Military Rehabilitation and Compensation Commission[10], a psychiatrist asked to be excused after she had given her evidence, rather than stay to hear and comment on the evidence of other psychiatrists. She explained that the shortage of consultant psychiatrists in rural Australia meant her absence left a lot of teams without access to a psychiatrist.

5. Insufficient attention given to opinions of treating doctors

Much reliance is placed on the opinions of medico-legal experts, who usually will have seen the applicant only once or twice, for sessions of at most an hour each time. I would prefer there to be more attention given to the history and opinions of treating general practitioners and specialists. We trust the management of our health problems to treating doctors. Why should we not rely on the same experts when sorting out issues of legal liability? I would like to see reliance placed primarily on the treating team, and other expertise called in only if the court or tribunal itself considers it will be helpful, or agrees with a submission that another view should be obtained for clarification, or because there is a genuine medical conflict of opinion as to a relevant issue.

6. The problems of the hearing process

One side’s expert witnesses, usually those for the applicant, give evidence first. The evidence given by those expert witnesses is taken into account when the respondent’s expert witnesses are called. If they raise new issues, perhaps in response to suggestions from the legal team calling them, which were not disclosed by their reports, the applicant’s witnesses may need to be recalled. Although the courts and tribunals may agree to recall a witness, issues of cost and time delays mean that an expert witness is rarely recalled. That may leave some issues unanswered, even though there may be an answer. This happens in respect of issues which did not seem important at the beginning of the hearing, but which acquire more importance during the hearing process.

When listening to expert medical evidence, I have often wondered whether the opinions would be expressed in the same terms, if a professional colleague of the witness was listening to the evidence being given.

7. ‘Shopping’ for expert opinions

Another problem, as adverted to by Jessell MR, in the passage I quoted earlier, is that even though each party at a hearing is able to produce one or more expert witnesses to support their arguments, the court or tribunal has no idea how many others might have been approached. Sometimes a potential witness will say, when approached to provide a report that he or she could not provide an opinion in support of the conclusion or argument on which the party seeking an opinion is intending to rely. That person therefore is not used in the hearing, but the Court or Tribunal is not told that they were approached. Further, there is never evidence as to the standing or reputation of the expert witness who finally appears, only formal qualifications and hospital appointments are given in evidence.

8. Refusal to produce an expert medical opinion

A related problem arises where a respondent has sent an applicant for examination by a chosen expert, but does not produce that expert’s report unless compelled to do so by the Court or tribunal. The reason for not producing the report is, no doubt, because it is favourable to the applicant.

In Re McMaugh and Australian Telecommunications Authority (1991) ALD 393, the AAT dealt with that problem using its power under s 37(3) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to require the respondent to produce the report. I have, three times that I can recall, followed Re McMaugh. In each matter, my decision to use that power was hotly contested by the respondent, but once my decision was made, the matter, or at least the aspect relevant to the report in question, was quickly settled by recognising the applicant’s entitlement to compensation. However, had the applicants been more fragile, or had their legal representatives not been prepared to fight (and maybe bear the costs of) the matter right up to that stage, then the claims may have been settled on less favourable terms, in the mistaken belief that there would be a contest as to the medical evidence.

On one occasion, I was so troubled by the tactics of the Australian Government Solicitor, in running a case up to hearing, when many months earlier they had received their own expert advice supporting the applicant’s claim, that I arranged for the District Registrar to write to the CEO of the Australian Government Solicitor. The letter explained my concern that the tactics were inconsistent with the Model Litigant policy, which Commonwealth litigants are expected to follow. The CEO’s reply did nothing to alleviate my concern.

I suggest there should be amendment to court and tribunal legislative provisions, and to all personal injury and compensation or pension legislation, requiring that whenever an applicant attends for a medical examination by a respondent’s medical expert, a copy of the report should promptly be provided to the applicant or his or her legal representative. Why should it not be sent by the medical expert to both parties at the same time?

9. Legal practitioners seeking biased medical witnesses

The issue of an insurer not only shopping around for an expert with a particular view, but actually preferring biased medical evidence was referred to in Federal Parliament by Mr Edwards, the Member for Cowan (WA) on 27 November 2000. The Member is himself a veteran, who lost his legs when severely wounded during his service. He raised the problems “TPI” (Totally and Permanently Incapacitated)[11] veterans have in claiming payments under the Death and Disablement sections of their superannuation policies. Mr Edwards spoke of one Naval veteran who has a psychiatric condition after being wounded when serving on HMAS Hobart. The veteran worked for many years for St John’s Ambulance, but finally gave up and was accepted as TPI. When he claimed on his superannuation policy, the trustees of the superannuation fund required him to attend a Perth Professor of Psychiatry for a report on his condition. He did so and the Professor confirmed his condition. However, the underwriters did not accept that opinion. I will read from Hansard what happened next:

Then [the insurer] insisted that Mr Holmes attend a Dr Mustac, a psychiatrist who was well known amongst the veteran community for a bias towards insurance companies. Also, at the same time, he was requested to attend a vocational specialist … , who happened to be located with Dr Mustac to ascertain what employment Mr Holmes could undertake. As Mr Holmes had attended a medical professional selected by the superannuation fund and as he had already been deemed T&PI and could not undertake employment, he refused to attend [the psychiatrist] or the vocational specialist. This did not deter [the insurer] … or Dr Mustac, who proceeded to provide … a medical report anyway – this all without seeing Mr Holmes – and this report has been denied to Mr Holmes.[12]

Mr Edwards referred to another case where the same underwriter required a Vietnam veteran to attend the same psychiatrist. I am reading again from Hansard:

[The veteran] was well aware of Dr Mustac’s leanings to insurance companies and, because of this, submitted a list of seven eminent psychiatric professionals to [the insurer] … which he advised he would be happy to attend and would they choose one. They refused and insisted he attend Dr Mustac.[13]

The West Australian Sunday Times of 19 September 2004 reported that Dr Mustac was banned for 6 months in 2004, after a Medical Board Inquiry found he misused a memory test “to arrive at his damning assessments”; and that he faced further disciplinary charges. Even if he is no longer in practice, I fear there are others of similar leanings still in practice and still preferred by respondents and their legal representatives, because of the adversarial nature of our legal process.

I remember a file which shocked me many years ago. I was listed to hear a claim for compensation in a psychiatric matter. The applicant was reported to be very fragile and suicidal. The respondent sent the applicant to a total of 9 psychiatrists because the first 8 supported the claim. At the hearing the Respondent attempted to defend the claim on the basis of the ninth opinion. I was listed to hear it. We got as far as the start of the hearing. It settled after I pointed out that I would draw an inference from the fact that the first eight were not called. I indicated that I would also comment in my reasons on my concern about the damage to the well-being of the applicant in requiring attendance on so many psychiatrists, each of whom required the applicant to tell the story of the traumatic events which had precipitated the condition.

MEASURES CURRENTLY BEING PROPOSED

The second and third parts of this paper were intended to describe measures being proposed to address the problems of expert evidence in an adversarial legal system, and to describe my own experience of using one of those methods, commonly known as ‘the hot tub.’

Unfortunately, I can do no more than a short sketch of these two aspects in the time allowed.

Serious attempts at law reform started with Lord Woolf’s reports to the Lord Chancellor in the UK in 1995 and 1996. Lord Woolf recommended radical reforms which, as you would expect, aroused great opposition from the legal profession; but they were introduced anyway. Similar reforms have now been introduced by the Federal Court and most Australian Supreme Courts. The reforms include:

  1. Guidelines explaining to expert witnesses that their duty is to the court, not to the party who engages and pays them.
  2. Declarations by experts that they accept this obligation
  3. A preference for court appointed joint experts, instead of expert witnesses for each party
  4. Where there are experts for each party on an issue, a requirement that the experts confer without lawyers present before giving evidence, to see if they can agree on their evidence and if not, to narrow the areas of dispute
  5. A requirement that if opposing expert evidence is to be given on an issue, it be given by all the experts at the same time and in front of each other (ie in what has been called a ‘hot tub’) and that it be more like a discussion than formal evidence in chief and cross examination
  6. The use of assessors to assist a court with technical or scientific evidence.

Some here may know more than I do about the measures introduced in different jurisdictions. My experience is mainly confined to ‘hot tubs’, which I have used and found helpful in three hearings. I believe that preliminary steps in two other matters, where I had directed that concurrent evidence be given, led to the matters resolving without a hearing.

I am also very attracted to the idea of a court or tribunal appointed single expert. There is no provision for that in the AAT Act, so I have not used it; but I commend it to those of you who are interested in the topic.

The AAT’s experience with concurrent evidence

Justice O’Connor, when President of the AAT, pioneered the use of hot tubs.

In October 2002, the Tribunal commenced a study of the use of concurrent evidence. Unfortunately, although the study was originally proposed to finish in April 2003, there is still no report available. It was decided that in order to be of value, the study would need to consider 50 hearings in which evidence of expert witness was given concurrently. The decision was made that only New South Wales hearings would be studied. Because of the rate of settlement, which may increase once cases are identified as suitable for concurrent evidence, there have not yet been 50 hearings in New South Wales in which concurrent evidence was heard, since the study began. I am informed that a decision has been made to stop the study and write the report on the data currently available. We need to think about why there have been so few cases.

The President of the Tribunal, Justice Downes, delivered a paper on the New South Wales experience of using concurrent evidence in Tasmania on 27 February 2001[14]. The paper discusses the technique and anecdotal evidence as to how tribunal members, expert witnesses and the parties have reacted to the experience of evidence been given concurrently. The tribunal has also produced guidelines explaining the concurrent evidence procedure.

My experience using concurrent evidence.

I have decided to use concurrent evidence in five matters, of which two resolved before hearing and three proceeded to hearing and decisions[15].

In one the applicant withdrew after I had arranged for a letter to be sent to the parties outlining the evidence we had heard and the questions we intended to ask the expert witnesses.

The other case which resolved was settled. It was clear that the settlement was because of the decision to hear concurrent evidence. The expert witnesses were two Professors of Orthopaedic Surgery, one from Melbourne and one from Sydney University. The question to be considered was the method by which a chronic compensable knee injury should be repaired. The treating orthopaedic surgeon had recommended a particular procedure using carbon fibre rods. His opinion was endorsed by the Professor from Melbourne. The Sydney Professor, who had not seen the applicant, recommended a different and less costly release procedure.

I was listed to hear that matter with a colleague who is a medical general practitioner. We felt there was something inappropriate about us, with our limited expertise of orthopaedic surgery, having to decide the issue. We asked for the Professors to give their evidence concurrently so that any issues which arose could be discussed with both of them. We also requested that they confer prior to the day of the hearing to identify the matters to which they agreed and those as to which they disagreed. The two Professors, who knew each other very well, spoke on the telephone. They found that there was no real difference between them. They agreed that the simple release procedure should be performed and that depending on the result of an arthroscopy, it may be necessary to advance to the other more complex procedure. The matter settled on the basis that there be an arthroscopy and release performed, but that if at arthroscopy any lesion on the medial femoral condyle appeared to be dominant, the resurfacing procedure with carbon fibre rods would also be undertaken. We considered that to be an eminently sensible approach to the matter. Even if the second, and more expensive, procedure had to be undertaken, the amount saved in legal costs would no doubt have comfortably covered the cost.

In Re Temple and Repatriation Commission [2001] AATA 490, I delivered a decision after hearing concurrent evidence. The question was whether a veteran suffered from asthmatic bronchitis. If so, under the system of Repatriation Medical Authority Statements of Principle, which had to be applied by the Tribunal, his war-caused smoking habit would mean he was entitled to pension. The alternative diagnosis was bronchial asthma. If he suffered from that condition, and not from bronchitis, the smoking habit did not give him any entitlement. There were two eminent respiratory physicians called as witnesses. They were, as you would expect, well known to each other. In their reports, they had originally both diagnosed his condition as bronchial asthma. One of the experts changed his opinion in a later report, after having been referred to the relevant SoPs. The language of his report showed that he had turned his mind not only to medical issues but also to the question of what arguments could be advanced to help the applicant.

The evidence was that the preferable diagnosis from the veteran’s point of view, of bronchitis, required a history of cough and mucous production. At first, in consultation with the medical experts, the veteran said that he did not cough up much sputum. By the time of the hearing, he said he had minimised his complaint, when he had seen doctors earlier. He did not explain why he had done so, but he said that he did produce a lot of sputum.

In evidence, one expert had suggested that the difference between the two diagnoses “may have more legal than medical significance” [16]. I said at paragraphs 40-42 of my reasons:

At the conclusion of the first day of hearing the Tribunal expressed concern about the difficulty choosing between the different opinions of the two doctors both of whom are eminent Melbourne respiratory physicians. A further problem was that … Dr Hart said that he could accept that Mr Temple may suffer from some obstructive bronchitis as well as asthma, …

The Tribunal suggested that it would be assisted by both doctors giving evidence together, which is sometimes colloquially described as a “hot tub”. The parties and the doctors co-operated and a resumed hearing was arranged on that basis.

At the resumed hearing Dr Pain and Dr Hart sat in the witness box together. The proceeding started with the Tribunal summarising the evidence already given.

I said at paragraphs 52-56:

I have concluded that if Dr Pain, who is the Director of Thoracic Medicine at the Royal Melbourne Hospital, says that in his opinion Mr Temple fits the definition of asthmatic bronchitis in the SoP, except for the last sentence which he says is meaningless, I have no basis on which to reject his opinion. I am reasonably satisfied that that is an appropriate diagnosis for Mr Temple.

This is beneficial legislation as was explained by the Federal Court in Repatriation Commission v Hawkins (1993) 117 ALR 225.

Mr Temple could be diagnosed as suffering from bronchial asthma with chronic bronchitis, but he would then not succeed in his claim to have his disease found to be war-caused. The evidence of Dr Pain is that Mr Temple can also, and in Dr Pain’s current view, more appropriately, be diagnosed as suffering from asthmatic bronchitis.

There is no evidentiary basis for me to reject Dr Pain’s professional opinion as to a matter directly within his field of specialty. According to Dr Pain and Dr Hart the last sentence of the definition in the SoP cannot be applied, as the first part of the SoP requires that the person be suffering an asthmatic component. Thus I do not regard that sentence as providing any basis for rejecting Dr Pain’s opinion that Mr Temple suffers from asthmatic bronchitis as defined in SoP Instrument No. 73 of 1997.

I also commented at the end of the decision, at paragraph 67:

The practice of calling two medical expert witnesses together is still unusual within the Tribunal. I consider it appropriate to record how helpful I found it to be and to express the Tribunal’s appreciation to the doctors for their cooperation, and to the representatives for their assistance in making the necessary arrangements. I suggest that the approach be adopted more frequently. There is benefit in a more investigative and less adversarial approach. I will ask the District Registrar to send a copy of these Reasons for Decision to Dr Pain and Dr Hart and also to the Chairman of the Repatriation Medical Authority. The Authority should be aware of the comments of Dr Pain and Dr Hart as to the difficulty of applying the definition of asthmatic bronchitis in SoP Instrument No. 73 of 1997.

The second matter in which I used concurrent evidence was Re Studd and Secretary to the Department of Agriculture, Fisheries and Forestry [2003] AATA 897. In that matter, the Tribunal said at paragraph 6:

In a directions hearing, prior to the hearing of the matter, the Tribunal indicated that it considered this would be an appropriate matter in which to have concurrent expert evidence. Arrangements were accordingly made for the two experts, Dr Brooke-Taylor and Dr Desmarchelier to give evidence at the same time. Before giving evidence they had the opportunity to speak together to see if they could identify the matters on which they agreed, and the issues that were in dispute between them.

Once again, because the field of food science is very specialised and narrow, the two experts were well known to each other. The issue was whether the manufacturing process for Roquefort cheese was “heat treatment… using a time and temperature combination”, as set out in the relevant standard in the Australian New Zealand Food Standards Code.

Although the reports from the two experts made it seem there was a significant difference of opinion, when they gave evidence together it was apparent that the bacteria reduction method used for Roquefort cheese was not a “heat treatment” as specified in the Code. Therefore, regardless of its safety, we could not allow the importation of the cheese. The cheese, which had been imported to provide the basis for a test case, was buried with a full funeral procession including a hearse and considerable media coverage[17].

The third hearing was Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384. The issue was whether compensation continued to be payable in respect of schizophrenia which had developed during the veteran’s service, and from which he continued to suffer. There were some logistic difficulties in having the four psychiatrists who gave evidence do so concurrently. The treating psychiatrist was the rural consultant referred to earlier, who asked to be excused after giving her evidence because of the shortage of rural psychiatrists. Another lived in Tasmania and had to attend a funeral for part of the day. Professor Burrows and Dr Epstein, who had both provided medico-legal reports, were available to give concurrent evidence.

The issues were complicated, mainly because the condition had developed and been accepted as compensable more than 30 years earlier. The decision that compensation continued to be payable was essentially a decision on a legal rather than a medical issue.

Concluding thoughts as to the use of concurrent evidence.

It is my view that hearings should be investigative and not adversarial. This is assisted where experts in the same field of expertise give evidence concurrently. I consider there is value, not only in having them hear each other’s evidence, but also in them knowing that their evidence will be heard by their peers.

There is certainly value for the court or tribunal in having all experts on one issue present at the same time, so that the same question can be addressed to all, and they are all answering questions from the same factual background, and with the same assumptions as to matters relevant to their expertise.

I also think it is important that the experts confer before the day of hearing, even if only over the telephone. The conference of experts should take place without any legal input; and after the conference, the experts should prepare a joint report, which they all sign.

If the experts meet and confer well prior to the hearing, the costs of preparing for a hearing may be saved. They should in my view meet without lawyers present. In some matters, it may be appropriate to give the medical witness all the medical records. In others, that would not be necessary. If the medical experts considered they had been asked the wrong questions, they should be free to point that out in their reports. At the hearing there should be no additional material given to the experts. In a rare case, when something relevant has been discovered after the reports were prepared, that additional information should be given to the experts for them to prepare a joint additional report taking that material into account, before the hearing.

I recognize that there will be concern about the additional cost of this procedure, and also concern about the reduced input by lawyers. There should be cost savings in matters settling or taking less time to hear, which will justify the additional costs incurred by having conferences of experts. The sooner they are held, the more savings there should be.

With more experience better ways to prepare for concurrent evidence will be developed. Sometimes it will be appropriate to require the parties to agree on the relevant questions before the hearing, and to submit them to the tribunal for approval before sending them to the experts.

This procedure would place more of an onus on lawyers and the tribunal to prepare statements of agreed facts and statements of the relevant issues for the experts to consider at their conference. It may on occasions be necessary to hold a directions hearing, at which lawyers and experts as well as the tribunal participate.

Making the best use of concurrent evidence would probably require courts and tribunals to become involved and familiar with the file earlier, to identify the issues and give directions as to steps to be taken. However, that would be worthwhile because of the higher rate of appropriate settlements, and because it can shorten the time taken at the hearing.

At the hearing, I consider each expert should make his or her opening statement, or else answer questions from the court or tribunal, but at that time there should not be repetition of what is already written in the agreed report. I do not consider that there should be examination in chief or cross-examination after that. There should however be questions for clarification of the opinions of the experts, either from one expert to another, from the tribunal, or from Counsel through the tribunal. At the end of the procedure each expert should be asked whether he or she wishes to add anything to what has been said.

If the procedure reduces the use of medico-legal experts, and instead relies more on experts chosen for their expertise in their area of specialty or training, in my view that will be an improvement. I recognise that the methods used will need to be adapted to suit the needs of particular hearings and will also need to be fine-tuned. I think the sooner we start using concurrent evidence more widely, the sooner we will make the necessary improvements and adaptations. The issue of costs needs consideration.

Court or tribunal appointed experts.

I would also like to see amendment to rules and regulations to allow for the appointment of tribunal expert witnesses and tribunal assessors. That could be done by agreement if possible but, if not, the court or tribunal should have power to decide to appoint an expert witness. After all, as Brennan J said in Bushell v Repatriation Commission (1992) 109 ALR 30, at paragraph 43:

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the board and the AAT is an administrative decision- maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.

I do not consider the power to appoint a court or tribunal appointed expert witness would be used frequently at first, but there is reason to believe that once it is used, the value of impartial experts will be appreciated.

I commend Justice McLellan’s paper on Proportionality – Cost Effective Justice[18] to those interested in this topic. He discusses the recent experience of the Land and Environment Court of New South Wales. The theme of his paper is that in recent years it has been realised that the traditional adversarial process is not the only way to resolve disputes. Some of the problems he highlights are specifically relevant to the Land and Environment Court, but others are relevant to hearings before any court or tribunal in which expert witnesses are giving evidence.

His Honour describes changes in his court since March 2004, when the court decided that whenever expert witnesses are required, a court expert will be appointed. When he wrote his paper in excess of 160 experts had been appointed and 56 of those cases had been completed, 34 by settlement. The others had taken significantly less time at hearing than was previously the case.

Justice McClellan explained that a Court expert “will add useful information to any discussion”. By leave other experts may also be called. He also pointed out that the parties must agree on the expert to be chosen and they share the expert’s fee. His Honour stated:

I have received reports from members of the Court, practitioners and experts themselves about their opinion of the quality of the evidence given by court appointed experts. The consistent comment … is that the evidence from persons appointed as court experts reflects a more thorough and balanced consideration of the issues than was previously the case. This is not surprising when discussions with the experts confirm the pressure that they feel as the “court expert” is to ensure that the report they produce considers all relevant matters and, most importantly, provides a balanced analysis of the situation. Given our understanding of the problems with expert evidence in the past, these comments are not surprising, but they are a significant confirmation of the need for change.

Although the move to appoint court experts initially met with significant resistance from the legal profession, I believe that resistance is now diminishing. With the change has come a clearer understanding of the deficiencies of the old approach and the benefits which change can bring. For the experts, it is about giving back to them the opportunity to use their expertise without obligation to a client and the ability to express their views without the distortions that can come from the adversarial process.

Another significant advantage of a court expert in merit appeals is that the parties have an opportunity to discuss with an expert, who has no brief for either side, and who both sides have confidence in, the merits and problems of the particular proposal.

CONCLUSION

The aim of the hearing process should be to reach a correct and just decision. The current adversarial system is now widely recognised as being in urgent need of improvement, particularly in respect of its use of expert evidence. It is my belief that if the procedures which I have described were introduced, they would play, and soon be recognised as playing, a significant part in making the hearing process more fair and efficient.

[1] AAT statistics show in June 1999, 84% of AAT compensation cases sampled used expert witnesses, 77.9% in veteran’s affairs and 20.8% in social welfare. See Alston, B., Sourdin, Dr T. & Repton, A., Part one: Empirical information about the Administrative Appeals Tribunal, ALRC, June 1999, p. 32.

[2] See J Dwyer, “Overcoming the Adversarial Bias in Tribunal Procedures”, (1991) F L Review 252.

[3] Ibid

[4] See R Eggleston, “What is Wrong with the Adversary System” (1975) ALJ 428; I F Sheppard, “Court Witnesses – A Desirable or Undesirable Encroachment on the Adversary System” (1982) 56 ALJ 234; G Osborne, “Inquisitorial Procedure in the Administrative Appeals Tribunal – A Comparative Perspective” (1982) 13 F L Review;

[5] H Langbein “The German Advantage in Civil Procedure” (1985) 52 Uni Chicago L Review 823 p837.

[6] See for example The Right Hon. Lord Woolf, Interim Report to the Lord Chancellor of the Civil Justice System in England and Wales (June 1995); The Right Hon. Lord Woolf, Report to the Lord Chancellor of the Civil Justice System in England and Wales (July 1996); NSW Law Reform Commission, Issues Paper 25: Expert Witnesses, (November 2004); Australian Law Reform Commission, Adversarial Background Paper 6 (January 1999).

[7] Langbein, p835.

[8] Freckelton I, Reddy P & Selby H. (2004) Australian Judicial Perspectives on Expert Evidence: An Empirical Study, Australian Institute of Judicial Administration Incorporated, Research Report.

[9]Re King and Military Rehabilitation and Compensation Commission [2005] AATA 89

[10] [2005] AATA 384

[11] This is a common way of referring to the special rate of pension payable under s 24 of the Veterans’ Entitlements Act 1986.

[12]Parliamentary Debates Legislative Assembly, 27 November 2000, (Mr Edwards, Member for Cowan)

[13] ibid note 6

[14] Hon Justice Garry Downes AM “Concurrent Expert Evidence in the Administrative Appeals Tribunal: The New South Wales Experience”, Paper presented at the Australasian Conference of Planning and Environment Courts and Tribunals, Hobart, 27 February 2004.

[15]Re Studd and Secretary to the Department of Agriculture, Fisheries and Forestry [2003] AATA 897, Re Temple and Repatriation Commission [2001] AATA 490 and Re Harrington & MRCC [2005] AATA 384.

[16]Re Temple, paragraph 27.

[17]The Age newspaper, 6 October 2003.

[18] Justice P. McClellan,”Proportionality – cost effective justice? The recent experience of the Land and Environment Court” paper to AIJA annual Conference (2004)

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