In Long v IS Industry Fund Ptd Ltd (No 2)  NSWSC 1541, the NSW Supreme Court addressed complaints of irrelevance and prejudice levelled at an expert report. Justice Barr clarifies the thresholds for sections 55 and 135 of the Evidence Act 1995 (NSW) (‘The Act’).
The proceedings in Long v IS Industry Fund Ptd Ltd (No 2) concerned whether the plaintiff, Mr Long, was entitled to a TPD benefit.
The Plaintiff engaged occupational physician Dr S to produce an expert witness report in support of the plaintiff’s insurance claim. The plaintiff had sustained the injuries relevant to the TPD claim in 2011, whilst the expert conducted his assessment and reporting throughout 2018. Dr S opined that Mr Long had not been able to work for six months prior to his assessment of Mr Long’s condition, and that furthermore Mr Long would never be able to return to work in the future.
The Defendant insurance company argued that the extent of the irrelevance of Dr S’s report was enough to warrant its exclusion under s 135 of the Evidence Act. IS Industry Fund Pty Ltd (‘IS’) listed several aspects of the report which it believed had the capacity to be unfairly prejudicial, misleading, or confusing, so as to outweigh the probative value of the report.
These included that:
- The expert had based his opinion on irrelevant assumptions.
Dr S provided an opinion on the physical capability of Mr Long to perform work six and a half years following the accident and therefore did not account for events between the accident and the relevant date of the report that may have further contributed to the plaintiff’s disablement. Furthermore, the period of disablement relevant to the TPD Policy was 6 months after the date of injury. 
- The expert had responded to incorrect questions or applied the incorrect test.
Dr S based his conclusions on an incomplete version of the policy relevant to the assessment. In addition, the expert’s test (whether the claimant has a “real chance” of performing some kind of remunerative work without significant time off work) did not address or encompass the TPD Policy’s requirement that the claimant be unable to perform a range of lower paid alternative occupations as a result of his injury. 
In summary, the defendants argued that Dr S’s reports “were prepared so long after the date of disablement, and the evidence that [the expert] has properly taken into account all relevant subsequent events is so insufficient, that the probative value of his reports is so little that their tender should be rejected in limine”. 
Decision and Reasoning
The Court nonetheless admitted the reports into evidence. Notably, the court dealt with the issues of Relevance under s 55 of The Act and Prejudice under s 135 of The Act separately.
Justice Barr drew attention to the inclusive effect of Section 55 of the Evidence Act which defines as ‘relevant’ any evidence that “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.” That is, evidence is relevant even where it may become the subject of debate as to its factual reliability and the weight the court should ascribe to it. - Any further forensic and detailed discussions about the report should be left to the second-stage hearing.
In this instance, the court found that Dr S’s evidence still had the capacity to provide relevant forensic information to the court. Details of Mr Long’s condition years after the date of his injury could still disclose facts about the condition of the claimant at a time closer to his injury, and by extension the plaintiff’s eligibility for the TPD Policy.  The assumptions on which Dr S based his report did not align with those in the Policy and “that crucial assumptions upon which the opinion is founded are unsubstantiated” were insufficient to render the reports outside of the scope of relevance under s 55, even where the court at the second stage hearing may decide that the report is unreliable or should be given little weight. At - Justice Barr also commented that the “real chance” test was the correct one, in conformity with the decision in TAL Life ltd v Shuetrim (2016) 91 NSWLR 439.
The Court also concluded that Dr S’s report did not contain sufficient prejudice to warrant exclusion under section 135 of the Evidence Act.
The Defendant’s claims that the expert’s report was weak or unfounded contradicted its own argument that the report would unfairly prejudice the defendant at the second-stage hearing. The Defendants had not specifically provided any details in the expert’s report that would disadvantage the Defendants, and instead gave examples that showed up the inconsistencies or impertinence of the plaintiff’s case. The Court applied its belief that “Defendants are not usually prejudiced by inadequate evidence led by a plaintiff”.
- The court will not exclude a report at the preliminary hearing stage unless it contains very clear demonstrable issues that evidently hinder the just, quick, and cheap resolution of the matter. If the report appears in some way relevant to assessing the probability of the facts in the matter, then the court will reserve finer issues to do with the reliability and prejudicial nature of the report for the second stage hearing.
- Section 135 of the Evidence Act addresses a distinct issue from that of relevance under s 55 of the Evidence Act. The threshold for relevance (whether the report is capable of affecting the assessment of the probability of a fact in issue) is low and will generally include most reports which exhibit a logical link to an issue of fact in a matter. A report which lacks relevance does not automatically become subject to the operation of s 135, which requires a strong logical link between the content of an expert report and its unfairly disadvantaging effect on the other party.
- A weak expert report from one party is not by default a ground on which the other party can claim prejudice.