Procedural Direction PIC4 – Expert Witness Evidence
This Procedural Direction concerns the provision of expert evidence in the from an expert report prepared for a party to proceedings, or an expert witness proposed to be called to give evidence in the proceedings.
This Procedural Direction applies to: Workers Compensation Division, Motor Accidents Division
Date of commencement: 1 March 2021
1. This Procedural Direction concerns the provision of expert evidence in the form of:
(a) an expert report prepared for a party to proceedings, or
(b) an expert witness proposed to be called to give evidence in the proceedings.
2. This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).
3. The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.
4. Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.
5. This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).
Applicable legislation and rules
6. Parties should be familiar with the following provisions:
(a) clauses 44, 45 and 46 of the Workers Compensation Regulation 2016 (2016 Regulation), and
(b) rules 34 and 35 of the PIC Rules.
Duties to the PIC
7. A party proposing to call a witness to give evidence as an expert has a duty to ensure the witness is aware of the requirements of this Procedural Direction.
8. An expert witness has an overriding duty to assist the Commission impartially on the real issues in dispute relevant to the expert's area of expertise.
9. An expert witness's paramount duty is to the Commission. An expert witness is not an advocate for a party or the person retaining them.
10. In accordance with rule 35(3), evidence that does not comply with this Procedural Direction is not admissible in the Commission unless the Commission orders differently.
11. An expert’s written report should include:
(a) the name and address of the expert;
(b) an acknowledgement that the expert has read this Procedural Direction and agrees to be bound by it;
(c) details of the expert’s qualifications to prepare the report;
(d) the facts, matters and assumptions on which the opinions in the report are based;
(e) the literature or other material used in making the report. Care should be taken to refer to the appropriate guidelines for medical assessments;
(f) reasons for each opinion expressed. Where several opinions are provided in the report, the expert should summarise them;
(g) any reference to examinations, tests or investigations on which the expert relies should include, to the extent possible, the identity and qualifications of the person(s) who carried them out, findings and dates of any investigations;
(h) if an expert’s opinion is not fully researched because the expert considers that insufficient information is available, a statement that the opinion is no more than provisional. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report;
(i) if applicable, a clear statement identifying that a particular question or issue falls outside his or her field of expertise, and
(j) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
12. If an expert witness changes their opinion on a material matter after providing a report, the expert witness must immediately provide a supplementary report to that effect containing all relevant information as listed above.
Joint evidence, conclaves, conferences and working cooperatively with other expert witnesses
13. An expert witness must promptly comply with all directions given by the Commission, including to confer with another expert witness or to prepare a joint report with another expert witness on any issue. The expert witness must:
(a) exercise professional judgment on that issue;
(b) endeavour to reach agreement with another expert witness on that issue, and
(c) not act on any instructions or request to withhold or avoid agreement with any other expert witness.
14. An expert witness must abide by any direction of the Commission to:
(a) attend a conclave or conference with any other expert witness;
(b) endeavour to reach agreement on any matters in issue;
(c) prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement;
(d) base any joint report on specified facts or assumptions of fact, and
(e) give evidence concurrently with other experts.
15. An expert witness must exercise his or her independent, professional judgment regarding such a conclave or conference and joint report and must not act on any instruction or request to withhold or avoid agreement.
16. Where a party proposes to rely on the oral evidence of a witness, they must lodge and serve a document containing the name of the witness and a signed written statement of the evidence to be given by the witness. Where the witness to be called is an expert witness, the expert report constitutes the statement of evidence given by the witness.
17. A party wishing to call an expert to give oral evidence must demonstrate that the evidence of the expert witness is relevant to, and will assist the Commission in the resolution of, the real issues in dispute.
18. At the telephone conference, the member will address a number of procedural issues, including whether there is a demonstrated need to hear oral evidence from expert witnesses. The member will then advise the parties of the witnesses, including expert witnesses, who will be permitted to give oral evidence in the course of proceedings.