APPEAL COURT SLAMS COMPO BIKER’S MEDICAL EXPERT “AMBUSH”

An alleged affiliate of notorious Brisbane motorcycle gang members must do battle for a second time to gain compensation from the driver whose careless U-turn in May 2011 on Wynnum Road in East Brisbane, is responsible for his serious impact injuries .

Queensland’s Court of Appeal has ordered a retrial of the injury compensation claim by Merhang Mashaghati – an Iranian born citizen of Germany – for the injuries he sustained in the accident.

It ruled trial judge Dean Morzone “miscarried his discretion” by awarding Mashaghati a total of $156k in September 2016, thereby necessitating a re-staging of the four day contest in the coming months.

The protagonist found himself barred from attending last year’s District Court hearing after the surprise cancellation of his Australian visa after flying out to Europe to visit family.

Before departure, he underwent a round of consultations with medical experts – including Orthopedist Malcolm Wallace – for the preparation of reports to support his injury compensation claim.

Wallace’s colleague Thomas Kossman – who practices in Australia and in Germany – presumably saw Mashaghati for the purpose of his report, in his rooms in Stuttgart.

Mashaghati’s evidence at the trial had to be given by video link.

Lacking the usual opportunity to get updated medical reports prior to the trial, his lawyers embarked upon a plan to have two of their experts – psychiatrist Joe Matthew and neuropsychologist Debbie Anderson – sit in court to observe the plaintiff’s video testimony on the first day of the trial.

Nothing wrong with that, you might think.

A furore erupted at lunchtime on the third day of the trial when a copy of Dr Matthews’ supplementary report – produced from his observation of our hero’s testimony – was handed over.

The following day Ms Anderson’s supplementary report was also provided.

Unprepared for this “behind the back” strategy, CTP insurer Allianz complained vigorously of the trickery that had been performed upon it.

Judge Morzone dismissed its protests as “sour grapes”.  The insurer’s real complaint – according to his honour – was that it had lacked the foresight to do the same so as to make their own observations.

On appeal, Justice Walter Sofronoff disagreed.

He and Justices Applegarth and McMurdo all reasoned that “no rational barrister would have expected his opponent to conduct the case in such a manner”.

Court rules “create a reasonable expectation the parties will not engage in retaining medical experts to make secret observations,” he observed. “The days of the well-plotted forensic ambush are well and truly over”.

The appeal judges ruled that the court below had erred by overlooking the requirement in UCPR rule 548(4)(c) that the opinion an expert intends to present to the court be reduced to writing and identified in the party’s statement of loss and damage. The only exception being, where a “special reason” persuades a court to exercise its discretion to the contrary.

Without such a “special reason” having been advanced on behalf of  and considered by the trial judge, it was far too late to present supplementary reports mid-trial, in their view.

The admission of the late medical reports therefore constituted a mistrial.

Court President Sofronoff dismissed the suggestion that Dr Matthew and Ms Anderson had been “better fulfilling their duty to the court as experts” – the justification for the strategy advanced by Mashaghati’s lawyers.

It was not suggested that the experts were there other than on a paid basis at the request of the legal team but the court felt compelled to to explain that an expert’s duty to assist the court “does not involve any requirement to attend the trial when neither party has made a request to the expert to attend,” Sofronoff wrote. “There is no obligation for an expert to initiate a search for facts without a retainer to do so.”

Mr Mashaghati’s retrial will probably occur later this year. Because his video testimony was not recorded, presumably he will be required to submit to video consultations before then from his home in Germany with Allianz’s experts Harvey Whiteford (psychiatrist) and John Cameron (neurologist) to allow them to produce opinions to counter those made by their well-meaning counterparts.

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127 Sofronoff P and McMurdo JA and Applegarth J 9 June 2017

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