In New South Wales, the use of expert witnesses in the Personal Injury Commission is subject to section 35 of the Personal Injury Commission Rules 2021 and Procedural Direction PIC4 – Expert Witness Evidence.
Personal Injury Commission Rules 2021
Under Rule 34(1), a party to Commission proceedings who proposes to rely on the oral evidence of a witness must lodge, together with the information and documents required to be lodged and served under rule 67, a document containing (a) the name of the witness; and (b) a written statement of the evidence to be given by the witness, signed by the witness.
Rule 35(1) states that the report of the expert witness constitutes a written statement of the evidence to be given by the witness for the purposes of rule 34(1)(b).
Rule 35(2) states a party proposing to call a witness to give evidence as an expert witness has a duty to ensure the witness is aware of and adheres to any procedural direction concerning the use of expert witnesses.
Under Rule 35(3) expert evidence that does not comply with the procedural direction referred to in sub-rule (2) is not admissible in Commission proceedings.
Procedural Direction PIC4
Procedural Direction PIC4 – Expert Witness Evidence concerns the provision of expert witness evidence in the form of an expert report prepared for a party to proceedings, or an expert witness proposed to be called to give evidence in the proceedings.
Procedural Direction PIC4:
- applies to Workers Compensation matters and Motor Accident matters before the Commission
- commenced 1 March 2021
- outlines the duties of the expert witness
- prescribes the content that should be included in an expert’s written report
- outlines the requirements of the expert witness in terms of:
- attending a conclave or conference with any other expert witness
- working cooperatively with other expert witnesses
- preparing joint reports on matters agreed and matters not agreed
- giving evidence concurrently with other experts
- outlines the basis on which the Commission will hear the oral evidence of expert witnesses.
It should be noted that an expert’s written report should include an acknowledgement that the expert has read Procedural Direction PIC4 and agrees to be bound by it.