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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3007 ..
MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.45): The government opposes the amendment, Mr Speaker. Experts are engaged by plaintiffs and defendants as an integral part of a claims process for both plaintiffs and defendants, both before and after a claim is lodged.
The evidence that an expert might give falls into three broad categories: the medical condition or prospects of rehabilitation of a person; the cognitive, functional or vocational capacity of a person; and the question whether a particular medical treatment amounts to a professional negligence. The evidence is employed to establish or refute claims of the presence of negligence or the quantum of loss. Expert witnesses are a very significant cost driver in litigation and civil claims.
A number of difficulties exist in relation to expert witnesses in Australia and other common law countries like the United Kingdom. Experts are perceived to lack independence from the party that engaged them. They're essentially regarded as no more than hired guns.
Excessive or inappropriate expert reports are obtained by parties; experts sometimes fail to provide reports in the appropriate timeframe; and the appearance of experts in court is problematic. Even a short appearance may require the expert to set aside a number of days. Simply put, there's a widely held view that experts are hired guns that give the evidence they're paid to give.
Most Australian jurisdictions have identified the use of expert witnesses as a significant issue, but strongly entrenched legal interests have strongly opposed proposed reforms. The major exception to that is the United Kingdom. Lord Woolf, the author of civil reforms in the United Kingdom, argued in his access to justice reports that the use of experts was a major problem in the civil justice system.
Expert witnesses significantly increase the cost and complexity of litigation. Expert witnesses are a major source of delay in proceedings. Lord Woolf proposed that there be a single joint expert where possible. In 1996 he said in relation to this issue:
It was a basic contention of my interim report that two of the major generators of unnecessary cost in civil litigation were uncontrolled discovery and expert evidence. No-one has seriously challenged that contention. In the interim report I made it clear in general terms that I wanted to retain what was best in the English adversarial system.
Any substantial curtailment of the parties' rights to adduce the expert evidence of their choice would certainly be a significant move away from the adversarial tradition. For that reason alone many contributors to the enquiry regarded it as unacceptable. My concern, however, is with access to justice and hence with reductions in cost, delay and complexity.
The argument for the universal application of a full red-blooded adversarial approach is appropriate only if questions of cost and time are put aside. The present system works well for lawyers and judges but ordinary people are kept out of litigation.
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