Where an expert witness has been extensively involved in a party's investigation before being retained to prepare an expert report, and has been exposed to information beyond the material disclosed as the factual basis for the report, the report may be inadmissible as a whole under the Makita principles if the court finds it was inevitable that excluded information influenced the opinion-forming process. The failure need not be traced to specific facts crossing the barrier; a general finding of inevitability based on the circumstances suffices. In the alternative, such a report is liable to exclusion under s 135 on the basis that the risk of unconscious reliance on excluded material creates a danger of unfair prejudice substantially outweighing probative value. Courts will take a sceptical approach, analogous to the solicitor conflict of interest cases, to claims that an expert can compartmentalise information from prior involvement.
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