Cho v Dayoub [2024] NSWDC 97

In this case, the court ruled on the effect of an expert's reliance on a party's accounts, and another expert's scepticism of the same.

Background

In late 2014, the plaintiff moved next to the defendant in Burraneer. They lived peacefully until 2019, when the defendant erected a vertical steel beam immediately adjacent to the boundary wall between his and the plaintiff's properties. This led the plaintiff to file complaints to the Sutherland Shire Council.

Subsequently, a series of incidents involving alleged property damage, verbal exchanges, and physical confrontations happened. On Christmas eve 2019, the defendant purportedly sprayed the plaintiff with water and threatened her, and these were partially captured on CCTV.

Charges were filed against the defendant, who faced a common assault conviction in 2021. The plaintiff, claiming significant emotional distress, was hospitalised multiple times. The plaintiff alleged that, as a result of the defendant's conduct, she had suffered and continued to suffer loss and damage.

Expert evidence

The plaintiff relied on the evidence of a medico-legal psychiatric expert, Dr EP, who provided five reports detailing her psychiatric condition and its causes. Dr EP found symptoms consistent with a Major Depressive Episode, characterised by severe anxiety and panic attacks, which according to plaintiff, began after negative interactions with her neighbour, and worsened following further unpleasant encounters.

Dr EP's diagnosis was influenced significantly by the plaintiff's self-reported history and the stressful circumstances she described, suggesting a causal relationship between these events and her psychiatric diagnosis. In assessing the weight of Dr EP's expert evidence, the court found his approach problematic. This is because the reports highlight a reliance on the plaintiff's account of events, making the expert opinion heavily dependent on the accuracy and truthfulness of the plaintiff's statements, especially considering the discrepancies in the plaintiff's recounting of events.[395]

In his subsequent reports, Dr EP reiterated his diagnoses and continued to base his opinions on the plaintiff's narratives and self-reported symptoms. The court repeatedly found this methodology to have implications on the credibility and weight of his expert opinion, especially in light of the court's findings that contradict the plaintiff's accounts in significant respects. Dr EP's acceptance of the plaintiff's narrative without apparent scepticism or independent verification ultimately undermined the strength of his testimony in the court's eyes.

Meanwhile, the defendant relied on reports of Dr JR, who also provided several medicolegal reports. Unlike Dr EP, Dr JR was skeptical about the plaintiff's reliability as a historian and the accuracy of her allegations against the defendant. Dr JR noted that plaintiff's psychopathology seemed to exist well before her issues with the defendant, suggesting her claims needed independent verification.

Dr JR pointed out inconsistencies in the plaintiff's account during his consultation and expressed doubts about the truthfulness of her allegations, leading to difference in opinion with Dr EP's prognosis, stating it could only be considered reasonable if the plaintiff's history was entirely accurate, which he doubted due to potential underlying paranoid states.

Ultimately, Dr JR diagnosed the plaintiff with a Generalised Anxiety Disorder that predated her interactions with the defendant, critiquing her reliability due to inconsistencies and potential falsifications in her historical account. The court, however, was also concerned with Dr JR's approach, feeling it was too closely aligned with one party's perspective.[423]

The court found that Dr EP tended to accept at face value and without question the veracity of the plaintiff's statements, while Dr JR was overly sceptical, or in some instances simply rejecting of the reliability of the plaintiff's account of events. The court said that the medicolegal experts should have relied upon their specialised knowledge, having regard to the nature and extent of the absence of agreement with respect to the facts, other than the "facts" as they were revealed by the CCTV footage of Christmas Eve 2019.

The court said that it would have afforded more weight to their opinions, had the experts expressed their opinions on the long-accepted basis of identified factual assumptions.[427]

Key Takeaways:

  • It is problematic for the court when an expert witness relies too heavily on one witness' account of events without the expert testing that account factually. Less weight may be given to their report if the witness' testimony relied upon by the expert is found to have inconsistencies or errors of fact.
  • Conversely, where an expert is overly sceptical, or simply rejects the reliability of a witness' account of events, this may also be detrimental to the expert's credibility.
  • It is important for medicolegal experts to base their opinions on specialised knowledge, rather than solely on the parties' accounts. Experts should consider factual assumptions beyond what is presented by the parties to enhance the weight of their opinions.

Read the full decision here.

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