Court Of Appeal Orders A Retrial After Surprise Evidence Is Admitted Midway Through The Trial

Published 12 Feb 2018

Case Study: Allianz Australia Insurance Limited v Mashaghati [2017]


On 1 May 2011 the Respondent, Mr Mehrang Mashaghati was riding his motorcycle along Wynnum Road in East Brisbane when another vehicle driving in the opposite direction suddenly turned across the Respondent’s path. In an attempt to avoid collision, Mr Mashaghati subsequently crashed into a parked car and suffered the following injuries:

  • Closed head injury;
  • A cervical spine injury;
  • A lumbar spine injury;
  • Broken teeth;
  • An injury to his left ankle;
  • A chest injury;
  • An injury to the left side of the pelvis; and
  • Psychological injury.

Liability was admitted by the CTP Insurer (Appellant), however there were opposing opinions by the parties’ medical experts as to the extent of the head injury Mr Mashaghati sustained which led to a dispute in the amount of damages that ought to be awarded to him.

District Court Proceedings

Proceedings in this matter were initiated in the District Court of Brisbane where a claims for damages were brought against the driver who caused the accident. Mr Mashaghati was not an Australian Citizen and was unable to travel to Australia for the purpose of the trial preparation or to give evidence at the trial. He was therefore granted permission to give evidence by video link during the trial.

During trial Mr Mashaghati was called to give evidence and was also cross examined which took approximately 2 days. Unknown to the Appellant solicitors, when the Respondent was giving his evidence during the trial, his solicitors had organised medical experts to attend the trial and observe Mr Mashaghati giving evidence via video link for the purpose of preparing supplementary reports.

On the third day of trial, when Mr Mashaghati finished giving his evidence, Counsel for the Respondent advised the Appellant’s Solicitors that the medical experts had attended the trial and observed the Respondent giving evidence for the purpose of supplying a supplementary report and a copy of that report was subsequently handed over to the Appellant.

The trial Judge was immediately notified of the above and the Defendant submitted that the appellant was prejudiced in its defence of the claim because of the Respondent’s failure to notify them that the medical experts would attend the trial for the purpose of preparing updated medical reports. It was submitted that had they known about the arrangement, then they would have invited their experts to also attend and furnish their own updated reports.

His Honour observed that: “There is no rule in the Uniform Civil Procedure Rules or in general practice that an expert witness ought to be excluded form proceedings. Indeed, an expert witness whose discipline largely depends upon skilled and expert observation may well consider his or her duty being fulfilled pursuant to rule 428 to be present if matters are expected to first emerge during the course of trial” and therefore allowed for the supplementary evidence from the Respondent to be admitted.

The trial judge subsequently accepted the opinions of both the psychiatrist and neuropsychologist and stated that: “Dr Matthew and Ms Anderson were the most recent specialists to view the plaintiff. As such, there should be significant weight placed on their reports.” Accordingly, Judgement was delivered in favour of the Respondent which saw Mr Mashaghati awarded $156,000.00 in damages.

Court of Appeal

The Appellant subsequently appealed the decision on the basis that the admission of the supplementary evidence, which was served midway through the trial, was unfair and prejudiced the Appellant.

McMurdo JA observed that: “The judge was more likely to have been persuaded by the opinions of Dr Matthew and Ms Anderson because each had had the advantage, especially if their impressions of the respondent, from seeing his evidence given, corresponded with the initial impression of the judge”.

While the Court of Appeal accepted that the evidence was important, the Court found that the Appellant was denied an opportunity to tender further evidence based on observations of the respondent as he gave his evidence during trial. Accordingly the Court of Appeal held that the supplementary reports should not have been admitted into evidence during trial.

At Paragraph [87] it was observed that: “The Rules under which such litigation is conducted create reasonable expectation that parties will not engage in conduct such as retaining medical experts to make secret observations with the intention of tendering late reports. There could be no possible point in doing so. If the expert’s views were affected adversely to the side retaining the expert, then rule 549(2) would require disclosure of the fresh opinion

…. The days of the well-plotted forensic ambush leading to victory have been well and truly over since at least the promulgation of Order 39 Rules 29A to 29E of the Rules of the Supreme Court 1900.

… The conduct of the case on behalf of the Respondent, insofar as it was open and in accordance with the rules, gave no indication of the surprise which came later.”

The Court of Appeal overturned the Judgement and ordered a retrial.

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