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.