Choosing and Instructing the Mental Health Expert Witness: A Lesser Known Aspect of Trevorrow

Abstract

Apart from its significance as the first case to recognise that a member of the “stolen generation” had a cause of action against the government, Trevorrow v State of South Australia (No 5) [2007] SASC 285 is also a pertinent reminder of the extent to which a court will be assisted by an expert, especially when the expert is providing evidence that, whilst within their general training in psychiatry or psychology, is nonetheless outside the expert's clinical or academic experience. The situation becomes worse when experts are inadequately instructed. This article will consider the responsibilities of lawyers when choosing and instructing mental health experts. It will be argued that if the civil jurisdiction rules of court in relation to expert witnesses are followed, then there should be no real need on most occasions to call mental health experts to give oral testimony, except where a pre-trial conference does not lead to the resolution of differences of opinion between the experts.