Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3009 ..
If we don't, I think it's fair to say that every dollar creamed off by the competing hired medical guns, every dollar lost through delay or dispute, will be a dollar less for plaintiffs and a dollar more for premiums.
MR STEFANIAK (11.52): Mr Stanhope has certainly, as he often does, very forcibly put his point of view here on this particular matter, and he is largely right. I don't necessarily know that you go and get the most expensive expert, but you certainly go out and you get an expert who is going to do the best job for your particular case. The other side, doing their job as lawyers do, will go out and get an expert who'll do the best job for their case.
At the end of the day, it probably does become a little bit of a nonsense. I can remember, certainly as a solicitor, trying to find experts who would give the best possible slant to my client's case. You'd be doing the wrong thing by a client if you didn't. Everyone does that.
There is, however, one problem with this, which the Law Society quite correctly did flag. It's not only that solicitors are guilty of getting certain types of experts who have a certain slant, but we do have such things as judges. Judges are human beings, as we see, and they are sometimes known as a good plaintiff judge or a good defence judge. I can certainly name you a very good plaintiff judge in this territory, and I could probably name you one judge whom I'd be a little bit more wary to appear in front of, if I was a plaintiff. The Law Society did make the point about that. What happens if the court has to appoint an expert? If it's a plaintiff judge, plaintiff, you are home and hosed because you're going to probably get a plaintiff expert.
I thought, "Yes, that is a very real problem with another section, the role of the expert, 31ZYA."However, I was very pleased to see the Chief Minister had some subsequent amendments. In his proposed amendment No 2, he inserts a further subsection, which, I understand, is a sort of a modified Boland test, where "the expert must have regard to whether the treatment was in accordance with an opinion widely held by a significant number of respected practitioners in Australia in the relevant field". Because of that amendment I'm prepared, certainly, to support the government in terms of what it's got in this substantive section, 31ZW.
The amendment they're moving next-in relation to a significant number of respected practitioners, the college of surgeons or whatever in any relevant field in Australia- would stop perhaps, in my example, the plaintiff judge appointing a plaintiff expert if parties couldn't agree that that expert could not deviate too far away, if that was the case on the facts, from what a significant number of his or her respected peers, as practitioners in Australia, would do. That, I think, gives us a protection against a single expert not bringing fairness to it.
This is an area we will have to watch pretty carefully, because there still can possibly be a propensity for some injustice here. But I think amendment No 2 on the government's list of amendments will largely go towards stopping that happening. And remember, at any rate, the court only appoints an expert when the parties can't agree. I would hope, as a result of this particular piece of legislation, we'll see a lot more cooperation between the parties, because there's a lot more cooperation being forced between the parties.