Cassie Masters by her tutor William Masters v Sydney West Area Health Service

Reports of David De Freitas 11There was an initial challenge to the expertise of Mr De Freitas. Certainly the material contained in his first report of 12 June 2012 was slight as far as his expertise went. A supplementary report of 21 September 2012 was tendered and that expanded on some of his experience. 12It is necessary to say something about his qualifications to understand the challenge that is made to his reports. He says this: I have worked in the photographic industry for 25 years. During this period I have gained knowledge in both traditional and digital photography and the printing process. This includes printing negatives in a darkroom environment as well scanning film and outputting photographic prints from these scans. This experience allows me to accurately comment on how film types and lighting conditions as well as processing and printing methods can all effect (sic) the result of the end printed matter. I have also attended industry courses regarding colour management, reading and understanding of control strips (when reading colour balance of chemistry and papers) and making corrections to bring processes into control. 13I expressed the view during the hearing that in an area that is not normally encountered as an area of expertise it is difficult to come to a view about whether the person put forward as an expert has the specialised knowledge required by s 71 Evidence Act without the benefit of a voir dire. Neither party suggested that there should be such a voir dire hearing. 14Ultimately, the Plaintiff's counsel said that the thrust of the application was not to say that Mr De Freitas was incapable of giving a report as an expert. Rather, the challenge was to the substance of the report. This was said to be because it does not inform the real issues in the proceedings. 15Mr De Freitas was provided digital files containing the photographs that had been taken of the Plaintiff in the first few days of her life and asked to comment in the following way: Please consider the photographs and provide your opinion on whether the photographs constitute a reliable basis upon which any conclusions can be drawn in relation to the Plaintiff's skin tones at the time the photographs were taken. Please comment specifically upon whether the following issues, and any other identified by you, are relevant in determining the accuracy of photographic representation of skin tones: 1. Camera and it (sic) setting (i.e. white balance); 2. Lighting (natural/fluorescent/flash); 3. Film (if appropriate); 4. Processing process (whether film or digital); 5. Photographic paper; 6. Reproduction system (i.e. printer/colour photocopier). 16Mr De Freitas made comments on the photographs in three groups. In respect of all of them he said the photographs had been taken by an amateur photographer (non-professional) probably using a consumer based camera (non-professional SLR camera). 17In relation to the pictures numbered 126, 131, 132, 143 and 148 he said this: The files supplied appear to show an (sic) reasonably accurate colour balance including colour accurate skin tones and clean wipes. This however does not guarantee accuracy to the actual colour of the skin tones as the camera and printer "auto" setting processors will colour-correct any unbalanced colour at the time of shooting. 18In relation to pictures 149, 151, 157 and 159 he said this: The films supplied seem to show a more yellowing skin colour balanced to the files listed in [the first group]. This however does not guarantee accuracy to the actual colour of the skin's tones as the camera (including flash) and printer auto settings processes will colour-correct any unbalanced colour at the time of shooting. Generally a professional photo lab aims to produce an industry standard print which is colour balanced for a clean, warm (Yellow rather than cool blue) skin tones. This is considered to be most pleasing to the human eye. Other factors determining the end result are the type of photographic paper used (professional or consumer) as well as the chemistry used plus the adherence of the lab to ensure calibration of their equipment, papers & chemistry. This relates to all the mentioned files in this report. The consumer camera when set on auto will produce a warmer (yellowish) colour. 19Finally, in relation to picture numbered 163 he said this: This photograph was shot using available light and not a flash. This is shown clearly by the blue/magenta cast across the whole photo. Because of this, this image cannot be used to show accurately the skin tones of the subject at the time of the photograph. 20His conclusion in relation to all of the photographs was this: It is my belief that lighting during the image capture and the interpretations of operators during the printing process does not allow for one to make an accurate judgment of the colour of the child's skin when only dealing with digital images supplied. It is also worth noting that unless a monitor has been professionally calibrated to industry standards it cannot be used to accurately view a digital file. This is because most consumer monitors do not represent with 100% accuracy the colours of the digital file, whether those files are colour accurate or not. 21Although it seemed at first from the Plaintiff's written submissions that the Plaintiff did not consider that Mr De Freitas's evidence about the photographs went to a real issue in the proceedings it became clear at the hearing of the Motion that that was not the point of complaint. The Plaintiff is correct in not taking that point because, to the extent that the photographs are relied upon by the Plaintiff's experts, what those photographs demonstrate might be thought to go to a crucial issue, namely the extent and development of the jaundice in the first few days of the Plaintiff's life. 22The authorities suggest that care must be taken in relation to photographic evidence and, in particular, the reliance by a judge on his or her own interpretation of photographic evidence: Short v Barrett (Court of Appeal - 5 October 1990 - unreported). That is why an expert in the area may be an important or even an essential witness so that the photographic evidence can properly be considered and dealt with: Blacktown City Council v Hocking [2008] NSWCA 144 at [170] - [172]; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326. 23The evidence of Mr De Freitas, if properly given in an expert's report that complies with the provisions of r 31.27 UCPR would be admissible in the proceedings. 24At the time Mr De Freitas prepared his report he did not know what camera had been used, nor what times the photographs were taken, nor about the paper used to print the photographs. That information was subsequently provided by the Plaintiff's solicitors to the Defendant's solicitors on 7 February 2013. It was disclosed that the camera was a Nikon Cool Pix L10, that the camera setting was automatic, that the photographer was an amateur photographer and that the photographs were provided on a CD rather than printed. The letter also disclosed that the photographers were taken at various times on a number of days with the earliest being taken at 11:26am and the final ones being taken at 6:59pm, all in late April 2008. In that regard, for what it is worth, it may be accepted that daylight saving had concluded before the days on which the photographs were taken so that the light from outside would vary from full daylight to darkness. 25The Plaintiff made various criticisms about the report of Mr De Freitas but during the hearing it became clear that many of the criticisms were made because it was not realised that Mr De Freitas had available to him certain materials that were not set out in his report. For example, the Plaintiff criticised the fact that Mr De Freitas did not appear to know that the issue in the case was about the Plaintiff suffering jaundice. However, that was contained in the letter of instructions to Mr De Freitas which was tendered at the hearing of the Motions. It transpired further that (as noted earlier), subsequent to the provision of Mr De Freitas's report information had been provided by the Plaintiff's solicitors about the date and time of the taking of the photographs together with details concerning the identity of the camera and the photographers. Moreover, on 7 February 2013, many months after those Motions were filed, the Defendant's solicitors provided information in a letter to the Plaintiff's solicitors explaining a number of matters contained in Mr De Freitas' report. 26All of this is a good example of why there should be better communication between solicitors in these matters before Notices of Motion are filed and money wasted in boxing at shadows. 27In addition, Mr De Freitas, who appears inexperienced in the preparation of expert reports, should have been assisted when preparing the report so that he understood it was necessary to set out either the facts he was given or the assumptions that he made. For example, one of the Plaintiff's criticism of Mr De Freitas's report is that the term "unbalanced colour" is not defined or explained in any way. The Plaintiff was right in so asserting but the day before the Motion was listed for hearing the Defendant's solicitors provided the letter which sought to set out definitions and explanations including what that term meant. Although that was doubtless of assistance to the Plaintiff's lawyers, the information was essentially expert evidence that ought to have been included in the report. It is not appropriate to supplement an expert report by a letter from the expert's solicitors containing definitions and explanations. 28What is clear is that the report of Mr De Freitas does not comply with the principles in Makita (Aust) v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 nor with the definition of "expert's report" in r 31.18 UCPR nor with r 31.27 UCPR. It does not set out facts and assumptions of fact on which Mr De Freitas's opinion is based. It uses terms such as "auto" and "unbalanced" and "colour correct" without any explanation of what these terms mean. It makes statements about the necessity for a monitor to be "professionally calibrated to industry standards [or otherwise] it cannot be used to accurately view a digital file", but gives no explanation about what that means. It contains conclusions unsupported by reasoning. 29Nowhere does it appear in Mr De Freitas's report that he understands the relevant issue from his point of view to be the appearance, development and progression of jaundice in the Plaintiff's skin so that his comments about the accuracy of what is depicted in the photographs can have some proper context. 30Some examples of where unexplained conclusions are reached in the report are these. In paragraph 1(b), when commenting on the first group of photographs, Mr De Freitas says that the files supplied appeared to show a reasonably accurate colour balance including colour accurate skin tones. He says, however, that this does not guarantee accuracy to the actual colour of the skin tones as the camera and printer "auto" setting processes will colour correct any unbalanced colour at the time of shooting. Standing alone, I do not know what "colour correct" means nor what "unbalanced colour" means. Mr Woods of counsel for the Defendant says that the explanation can be found at the conclusion of paragraph 2(b) where Mr De Freitas says "the consumer camera when set on auto will produce a warmer (yellowish) colour." However, it is not self evident that the two statements mean the same thing. This is particularly so when earlier in paragraph 2(b) Mr De Freitas talks about yellow rather than blue skin tones being more pleasing to the human eye. 31A further example appears in the conclusion to the report. First, it is not apparent whether the conclusion is for the whole report or to the discussion of picture 163 because it appears on the page discussing that picture. Secondly, the words "it is my belief" at the beginning of the conclusion make the sentence ambiguous. Is Mr De Freitas saying that he does not know what the lighting was so that an accurate judgment cannot be made of the skin colour, or is he saying that he does know but because of the particular lighting he is not able to say whether it is accurate or not? 32A further problem with the report is that the information which should have been available to Mr De Freitas which has now been supplied under cover of the letter of 7 February 2013 from the Plaintiff's solicitors to the Defendant's solicitors, appears to me to be significant. The letter contains details of the camera used, the monitor used, who took the photographs and what time they were taken. Mr De Freitas's conclusions may well be affected by this information. 33The report does not comply with r 31.27 nor the principles in Makita and must be rejected in its present form. As I have indicated, Mr De Freitas appears to need assistance in the preparation of the report and I commend to the Defendant's lawyers the well researched and argued article by Garth Lake SC and Philippe Doyle Gray concerning the assistance that counsel can give to settle expert reports contained in Bar News, Summer 2012 - 2013 edition, p 56. In particular, I consider the conclusions the authors reached at p 66 are correct. 34It is not possible to reach a firm conclusion upon whether Mr De Freitas is an expert within the meaning of s 79 Evidence Act. Prima facie, the Plaintiff would not be precluded from challenging his expertise at the hearing if she wished to do so. One way of limiting the likelihood of a challenge would be for Mr De Freitas to be more expansive in the details of his experience and qualifications, particularly the courses he has undertaken, whilst working in the photographic industry. 35It follows from my conclusions concerning Mr De Freitas's report that the relief sought in paragraphs 1 and 2 of the Defendant's Notice of Motion must fail. However, I will return to this matter later.

Reports of Professor Lui and Ms Lewis 36I turn now to consider the Defendant's Notion of Motion. It seems to me that it has two aspects to it. The first concerns the use that may be made of photographs by persons expressing opinions about them. The second, which is inextricably linked with the Plaintiff's Motion and the report of Mr De Freitas, is whether, because of what Mr De Freitas says, the evidence of experts relying upon the photographs is reliable evidence. 37The Plaintiff has served three reports from Associate Professor Kei Lui. His first report of 20 July 2009 had regard to the following documents:

1. Anti-natal clinical notes relating to Karen Masters, Blue Mountains District Anzac Memorial Hospital;
2. Clinical records of Blue Mountains District Anzac Memorial Hospital in relation to Karen Masters;
3. Clinical records of Blue Mountains District Anzac Memorial Hospital in relation to Cassie Masters;
4. Clinical records of Nepean Hospital in relation to Cassie Masters;
5. Clinical records of Children's Hospital of Westmead in relation to Cassie Masters;
6. Clinical records of Australian hearing on Cassie Masters;
7. Sydney West Area Health Service final red course analysis report relating to Cassie Masters;
8. Working chronology prepared by Maurice Blackburn Lawyers in relation to Karen Masters and Cassie Masters;
9. New South Wales Expert Code of Conduct. 38A reading of that report shows that Professor Lui answered the questions asked of him on the basis of those documents and his expertise. He was then asked some further questions and he provided answers to those questions in his second report. 39On 23 May 2011 the Plaintiff's solicitors wrote again to Professor Lui enclosing a CD containing the 11 photographs of the Plaintiff. The letter asked: Given this photographic evidence, could you please confirm whether or not they cause you to alter or strengthen your opinion, as summarised above and as per your reports? 40Professor Lui provided his third report of 16 June 2011. In relation to the first three photographs taken (126, 131 and 132) he said that the Plaintiff did not show any jaundice. 41He did not comment on the next three photographs (143, 148 and 149). In relation to photographs 150 and 151 he said the Plaintiff appeared jaundiced involving face and upper trunk at the age of 51 hours. He then made reference to the medical records made shortly after those photographs were taken. 42In relation to photographs 157 and 159 where only the side and back of the Plaintiff's head were in the picture he said she was clearly jaundiced. He said the skin tone when compared with the Plaintiff's siblings would be consistent with at least a deep facial jaundice. He then made reference to a nursing note made some 12 hours after photograph 157. 43In relation to the final photograph, 163, he said that the Plaintiff was being treated with phototherapy and receiving intravenous fluids so it was not possible to comment on the skin colour in the photograph. 44Mr Woods drew attention to a number of authorities concerning the use to which the photographs may be put. In particular, he drew attention to what was said both by Spigelman CJ and Tobias JA in Blacktown City Council v Hocking at [7]-[13] and [167]-[172]. What Tobias JA said in that case has been referred to favourably in a number of subsequent cases including Warren v Gittoes at [2] and Twynam Agricultural Group Pty Ltd v Williams at [66]. Those cases were particularly concerned with a judge making findings of fact from photographs unsupported by evidence or assistance from experts. That is not the issue in the present case. The issue is put more in terms of whether the expert medical witnesses are experts in interpreting photographs, particularly because of the sort of matters raised by Mr De Freitas in his report. Mr Woods submits that they are not and that their reports are of no utility as a result. 45Considering that Professor Lui provided two reports expressing his opinion based on matters entirely unrelated to the photographs, I do not think that there is any basis for rejecting his third report where he uses the photographs as a further assistance in coming to the opinions that he had earlier expressed. His instruction (set out in paragraph 39 above) is highly relevant in that regard. 46If during the course of the trial the trial judge is of the opinion, for reasons given by Mr De Freitas or otherwise, that the photographs are entirely unreliable, then no doubt some or all of Professor Lui's third report will be rejected. However, it is entirely premature to reach a conclusion about that at this stage. Even if I was of the opinion that Mr De Freitas's report was admissible in its present form I would not consider it appropriate to determine in advance of the trial that the photographs should be rejected nor that expert evidence partly reliant on photographs should be rejected. Mr De Freitas's opinions may be weakened by cross-examination or otherwise. The matter is entirely academic where Mr De Freitas's report is rejected in its present form. 47The further issue is raised by reason of the fact that Professor Lui viewed the photographs electronically rather than in hard form. This is an area where Mr De Freitas appears to have raised a technical issue about the appropriate calibration of the monitor upon which Professor Lui viewed the photographs. 48Whilst I can understand the difficulty, the better solution is for information to be provided about the monitor used by Professor Lui and the calibration used so that Mr De Freitas is in the position to reproduce the images in a similar way and provide his own comments upon them within the bounds of his expertise. Further, Professor Lui will be able to be cross-examined about what he observed in that regard. 49The Plaintiff's solicitor retained Ms Moyra Lewis, an expert midwife, for an opinion about the care provided to the Plaintiff from a midwifery point of view. There were three letters of instructions. The first set out a summary of the facts and asked if she would be prepared to provide an opinion. When she indicated that she would do so a brief of material was forwarded to her consisting of relevant hospital notes similar to what was provided to Professor Lui. Before she provided her report a third letter went to her enclosing the CD containing the 11 photographs. She was asked six questions in that letter concerning the nursing notes and other hospital material that was provided to her. Questions 2 and 3 asked: 2. In your opinion, do the enclosed photographs demonstrate that Cassie had signs or symptoms of jaundice on 22 or 23 April 2008? Please elaborate. 3, Please comment on the observations made by the nursing staff in the progress notes regarding Cassie's skin colour on 22 and 23 April 2008. In your opinion do their observations accord with the photographs enclosed? 50The report she provided on 4 April 2011 answered the six separate questions asked of her. In relation to question 2 she said this: In my opinion I believe that the enclosed photos do indicate that Cassis (sic) had signs of jaundice on 22 and 23 April 2008. In the photographs taken by Cassie's family dated 22 April 2008 at 12:50; 13:53 hours it appears that Cassie is jaundiced in the face. In the photographs at 15:45 and 15:46 hours, when she is being bathed, it can be noted that Cassie is jaundiced in the face, neck and upper torso. The photograph dated 23 April 2008 at 18:59 hours clearly shows Cassie is becoming more jaundiced cephalically. 51Her answers to question 3 contrasted some entries in the nursing notes with what Ms Lewis observed on the photographs. When providing her opinion Ms Lewis sometimes expressed a firm opinion about what the photographs show and on other occasions expressed a more tentative opinion by saying "it appears" that she is jaundiced. Her conclusions in that regard seem to allow for the fact that the photographs should not necessarily be taken as conclusive of what appears in them. 52What is quite clear, however, is that Ms Lewis does not base her opinion entirely upon her interpretation of the photographs. In particular she has regard to the contemporaneous nursing notes. 53There does not appear to be any basis for suggesting that, even if Mr De Freitas's opinion is accepted, Ms Lewis' opinion should be rejected. The weight that might be given to it will be a matter for the trial judge after weighing up what Mr De Freitas says and all of the other evidence, including the photographs, on the issue of jaundice. If there is any issue about what Ms Lewis observed when she viewed the CD on her monitor that matter can also be dealt with in the way I have suggested in relation to Professor Lui. 54I do not consider there is any basis for any of the relief contained in the Defendant's Notice of Motion. In my opinion the authorities referred to earlier (paragraph 10) in relation to r 31.20 are of limited usefulness for the relief sought by the Defendant. Chapman concerned the practice in the Equity Division of determining whether or not an expert should be allowed. That practice has no application to a professional negligence claim: r 31.19(4) UCPR. CFS Managed Property involved an application for a separate question concerning expert evidence. 55On the assumption that Mr De Freitas is shown to be an expert and his report is put into admissible form, the report raises factual questions that touch on the admissibility of the expert reports of the Plaintiff. How his opinions impact on the admissibility of those reports is a question of fact to be decided at the trial. His conclusions are not so obviously correct that it would be appropriate to rule on the admissibility of the photographs or Plaintiff's experts' reports at a preliminary stage. 56At the hearing of the applications the parties agreed that I should express preliminary views about costs. If those views were accepted there would not need to be a further appearance and further costs would be saved. 57My preliminary views are these. The Plaintiff has been successful in challenging the admissibility of Mr De Freitas's report. Although the Motion was put on the basis of the report's being inadmissible by virtue of s 79 and s 135 Evidence Act the motion was argued principally on the basis that the report did not comply with the rules regarding experts reports and the principles in Makita. The Plaintiff should have her costs of her motion of 31 July 2012. The Defendant has not been successful on its motion and should pay the Plaintiff's costs of that Motion. 58The orders I make are these: (1) On the Plaintiff's Notice of Motion filed 31 July 2012, order that the report of Mr David De Freitas dated 12 June 2012 is inadmissible by reason of failing to comply with r 31.27 UCPR. (2) Dismiss the Defendant's Notice of Motion filed 14 August 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2013