INTRODUCTION
The decision of DP (a pseudonym) v Bird [2021] VSC 850 offers valuable guidance for the selection and briefing of expert witnesses, as well as how the Court expects expert witnesses to conduct themselves in the course of forming their opinions.
The matter concerned allegations of child sexual abuse perpetrated by a Catholic priest, Father Bryan Coffey, in 1971 against the Plaintiff, who claimed to have suffered psychiatric injury as a result.
The Plaintiff and the Defendant relied upon the expert evidence of Associate Professor Carolyn Quadrio and Dr Alan Jager respectively, both forensic psychiatrists.
THE IMPORTANCE OF EXPERTISE
Forrest J observed that A/Prof Quadrio clearly had superior specialist knowledge of institutional and child abuse having specialised in the area for a number of decades. His Honour noted that her experience included lecturing on the subject of institutional abuse and its psychological consequences, as well as practising as a clinician and forensic specialist in the management and assessment of the consequences of trauma since 1990, including with clients who had been abused by clergy. It was noted further that A/Prof Quadrio had conducted independent medical examinations in a number of historical abuse proceedings, as well as consulted for numerous bodies, including the Royal Commission into Institutional Responses to Child Sexual Abuse.
By contrast, Forrest J observed that Dr Jager was a general forensic psychiatrist with no specialised experience in the area of institutional or child abuse. While His Honour acknowledged that Dr Jager had prepared a number of reports for the purposes of litigation, it was pointed out that those reports covered a wide range of subject areas.
LESSONS IN OPINION FORMATION
Forrest J was critical of the conduct of both experts in reaching their respective opinions. Dr Jager, for reasons His Honour found ‘incomprehensible’, failed to read any of the materials provided to him about the Plaintiff prior to their consultation. His Honour expressed doubt furthermore, that the 43 minute meeting conducted via Skype would have been sufficient to enable Dr Jager to develop a proper understanding of the Plaintiff’s condition. A/Prof Quadrio in turn, was not provided with any materials prior to her consultation with the Plaintiff and, as such, based her opinion on the history provided to her by the Plaintiff alone. As a consequence, A/Prof Quadrio’s opinion became almost impossible to accept when material from the Plaintiff’s treating practitioners, which was at odds with that history, was adduced at trial. In hindsight, and noting her obligations under the expert witness code of conduct, His Honour observed that it may be that A/Prof Quadrio should have requested further information from the Plaintiff’s lawyers or, alternatively, considered that there was insufficient research or data to reach a concluded opinion.
Forrest J ultimately gave no weight to either expert’s opinion, even after A/Prof Quadrio attempted to remedy the situation with the preparation of a supplementary report informed by the relevant material. By that time, His Honour reasoned, A/Prof Quadrio’s opinion had already been influenced by her acceptance of the Plaintiff’s account.
THE INHERENT VALUE OF TREATING PRACTITIONERS
A large portion of the evidence adduced at trial came from earlier statements made by the Plaintiff to his treating psychologists. Relevantly, in a number of those accounts, the Plaintiff attributed his behavioural and psychological issues to wholly different events, and frequently failed to refer to the relevant abuse at all.
Perhaps unsurprisingly, Forrest J ultimately preferred the opinions of the Plaintiff’s treating psychologists, stating that while they may not have the expertise of A/Prof Quadrio, they did have the significant advantage of having seen the Plaintiff in a clinical setting, far removed from the influence of litigation.
CONCLUSION
This decision serves as a cogent reminder to lawyers and expert witnesses alike to be proactive about obtaining a full picture of the relevant facts and evidence before assessment and opinion formation take place.
Should you wish to speak with Tarryn Jeffery or another member of Nevett Ford’s litigation team, give us a call on (03) 9614 7111 or email melbourne@nevettford.com.au