Plaintiff’s expert evidence ruled to be inadmissible for failing to satisfy the requirements of Makita

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By Stephen Aroney, Partner and Cassandra McAlary, Lawyer

On 26 November 2021, the Supreme Court of New South Wales in Attwells v White (No. 2) 2021 NSWSC 1520 handed down its decision that the plaintiff’s expert reports were inadmissible. This matter was heard before Lonergan J on 24 November 2021.

Background

The proceedings involve:

  1. A claim of negligence against a solicitor and barrister (the co-defendants) in relation to the advice provided to the plaintiff (the professional negligence proceedings).
  2. The associated proceedings between the solicitor and the plaintiff were ordered to be heard concurrently with the professional negligence proceedings (the fees proceedings).

Three weeks before the hearing, the plaintiff, Mr Attwells, filed a notice of motion seeking leave to rely upon a costs consultant’s report (Ms Davitt’s expert evidence). The issue of admissibility and relevance of Ms Davitt’s expert evidence was adjourned for determination by the trial judge at the hearing.

Issues for determination

The plaintiff’s key argument was that they required Ms Davitt’s expert evidence to assess and determine the reasonable legal costs incurred by the plaintiff, which was the subject of the claim for damages against the co-defendants.

The co-defendant’s position was that Ms Davitt’s expert evidence:

  1. Was “generalised”;
  2. Did not provide any substantive reasoning or methodology as to how figures were calculated;
  3. It was ambiguous what had been considered when she referred to “global issues”; and
  4. Did not comply with the requirements of the leading authorities being:
    1. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”); and
    2. Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (“Dasreef”).

Reasoning for decision

The trial judge, Lonergan J agreed with the co-defendants submissions and referred to the principle of Makita in which Heydon J set out the requirements (below) for admissibility of evidence tendered as expert opinion evidence:

  1. It is a requirement that the witness has “specialised knowledge”;
  2. It is a requirement that the witness shows specified training, study or experience;
  3. The witness has become an expert;
  4. The opinion must be “wholly or substantially based on the witness’s expert knowledge”;
  5. It is a requirement that the opinion is based form a proper substance for it; and
  6. It is a requirement to show demonstration and criteria of the analysis and how conclusions are formed.

Decision

Lonergan J remarked that it appears the purpose of Ms Davitt’s expert evidence was to assist the plaintiff in proving the “costs as damages,” and the only relevance of Ms Davitt’s evidence was to support the lay evidence which had already detailed all the costs incurred and claimed by the plaintiff. Her honour observed that Ms Davitt’s expert evidence fell far short of the requirements of an expert report and said that it would provide little assistance to the court.

Take Away

It is a reminder that care must be taken when briefing an expert to ensure that proper instructions and documents are provided to the expert and that the expert’s report sets out a logical, reasoned analysis with specific findings and conclusions based on the expert’s experience and qualifications.

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