Bailey v Illawarra Shoalhaven Local Area Health District [2015] NSWSC 910 (Bailey) is a recent reminder of the principles enunciated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) that expert witnesses must identify and establish the factual basis of their opinion and their reasoning process in order to satisfy a court that their opinion is based on specialised knowledge. In Bailey the plaintiff sought to adduce a doctor’s report she contended was relevant to the assessment of damages she had sustained. Harrison J rejected the plaintiff’s application to rely on the expert report.


To be accepted by a court, an expert’s opinion must be:

  1. relevant to the issues that remain to be determined;
  2. relevant to the claims particularised in the Statement of Particulars;
  3.  expert opinion, ie., it must be capable of empirical verification and more than a statement of hypothetical opinions based upon an assumed proposition; and
  4. served within the time ordered by the court.

The facts

Bailey is concerned with the birth and death of the plaintiff’s son, Aaron Hoare.  Mr Hoare was born with cerebral palsy. Mr Hoare died in adulthood from complications arising out of the condition.

The only issues which remained to be determined at hearing (set down for August 2015) are limited to the assessment of damages sustained by the plaintiff.  The plaintiff made a claim for the cost of past gratuitous domestic services and attendant care provided to the deceased during his lifetime and until his death.  Harrison J divided this claim into two categories, namely

  1. services provided by the plaintiff to her son and including the provision of physical assistance and the performance of practical tasks required in his care; and
  2. the provision of what Harrison J stated is variously described as “emotional support, socialisation and companionship” or “psychological and emotional care”.

The plaintiff also made a third claim for services provided by the deceased’s grandparents (the plaintiff’s parents).  This claim is for the provision of emotional support, assistance to the plaintiff in the provision of physical assistance to the deceased and assistance to the plaintiff with household activities and accompaniment to appointments.

The plaintiff sought to rely on a report prepared by Dr Smith, a psychiatrist (Smith Report).  Dr Smith described the instructions received from the plaintiff as follows:

You have requested my opinion in regard to the significance of the importance of the relationship between [the plaintiff] and her son Aaron.  You have also asked whether the level of involvement provided by Ms Bailey was essential for Aaron’s care and his psychosocial and developmental wellbeing.


Harrison J held the Smith Report inadmissible and considered that the opinion should be rejected.  In the judgment, Harrison J provided four reasons for rejecting the application.

The Smith Report was irrelevant to the issues that remained to be determined.  The Smith Report considered the plaintiff’s claim for the provision of emotional support given to the deceased that the plaintiff had been provided coincidentally with the provision of the deceased’s other physical care needs.  To allow the plaintiff to make separate claims for emotional support and physical care provided to the deceased simultaneously would, Harrison J held, be double counting.  To the extent that no such claim could be made, the Smith Report dealt with an irrelevant issue.

The Smith Report dealt only with the relationship between the plaintiff and the deceased.  It did not deal with the emotional support provided to the deceased by his grandparents.  In circumstances where the claim for provision of emotional support was primarily concerned with the emotional support given by the deceased’s grandparents, the discussion of the relationship between the plaintiff and her son had no bearing upon the claim.  The Smith Report was therefore irrelevant for this reason as well.

Further, the Smith Report did not support the plaintiff’s claim that the assistance she provided to the deceased was “over and above normal parenting”.  Harrison J rejected the contention made in the report that the “emotional support, socialisation and companionship” provided to the deceased by the plaintiff was over and above normal parenting, finding that these are all things that a parent usually provides in their capacity as a parent.  By contrast, Harrison J noted that the Smith Report failed to ventilate certain conduct particularised in the Further Amended Statement of Particulars that Harrison J found did appear to be tasks over and above normal parenting.

Applying the principles propounded in Makita, Harrison J found that the opinion Dr Smith provided was not strictly expert opinion.  His expressions were not traceable to him as an accepted repository of specialised knowledge in psychiatry. [1]  Dr Smith did not examine the plaintiff or the deceased.  Consequently, Harrison J found that the views expressed by Dr Smith:

… were no more and no less than a statement of hypothetical opinions based upon the assumed proposition that the plaintiff’s presence and attention to her son was better for him, and therefore more beneficial to his overall progress and comfort, than if she remained absent

This opinion, while accurate, was not tied to an expression of expert opinion and was therefore inadmissible.

Finally, the report was served late.  Harrison J found that the defendant should not be required to attempt to qualify an expert to meet the Smith Report in circumstances where Dr Smith’s views were based on general expressions of opinion and largely unverifiable hypothetical assumptions, the proceedings had been on foot since 2011 and the plaintiff had had adequate time to serve the report.

This judgment is a timely reminder to lawyers to consider the purpose of expert witness opinion and to ensure that instructions provided to expert witnesses are relevant to the issues that remain to be determined by a court.  It is also a reminder of the obiter given by Lindgren J in Harrington-Smith v Western Australia (No 7) [2003] FCA 893 that

[l]awyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports… but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.[2]