DANIEL HERRIDGE AND THE PLAINTIFFS LISTED IN SCHEDULE 1 TO THE WRIT OF SUMMONS -v- ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER [No 3] [2017] WASC 299 (13 October 2017)

2 Before addressing the questions of substance raised by the parties I wish to make some observations about the conduct of the conclave. First, the purpose of the conclave is for the experts to have a comprehensive discussion of issues relating to their field of expertise about which they have expressed their opinion in their reports with a view to identifying matters upon which they are agreed, the points of differences which remain between them and a succinct statement of the position of each of them in relation to each point of difference. The questions are to form an agenda to guide the experts in their conferring. The questions should be at a sufficiently high level of generality that they do not unduly restrain the experts from a comprehensive discussion of the points of agreement and difference arising from their reports. The agenda should not put loaded questions to the experts which may influence the importance attributed to a particular issue or factor. The conclave is not an opportunity to put new questions to the experts which do not properly arise out of or relate to the opinions they have expressed in their reports.

3 Secondly, the conclaves are to be chaired by the Principal Registrar. Direction 5 of the 28 April 2017 orders provides:

The management of the conclaves be otherwise referred to a Registrar of the Court and the parties have liberty to approach the Registrar by correspondence copied to all parties in the Parkerville proceedings.

The Principal Registrar may give directions to facilitate the conclaves as she sees fit, including what material is to be provided to the Principal Registrar. The Principal Registrar will manage the conclaves so as to facilitate the experts addressing the matters raised in their reports and identifying the substance of matters upon which they are agreed, the points of differences which remain between them and a succinct statement of the position of each of them in relation to each point of difference. Subject to those observations I will now address the questions of substance identified by the parties.

During the period 1996 to January 2014 (the period), what practices represented appropriate practice for the electricity distribution industry in Australia, or any part of Australia (including Western Australia) as to:

(a) the procedures to be followed during; and

(b) the timing of;

scheduled inservice asset inspections of wooden poles by an Asset Inspector in areas like the Perth Hills Area (Scheduled Asset Inspections)? Note, in answering this question please limit your consideration to poles owned by network operators, or which network operators do not own but are obligated to maintain.

5 The point of difference between the plaintiffs and Western Power is that Western Power says that the words 'industry practice(s) existed in the electricity distribution industry in Australia' should be substituted for the words 'appropriate practice for the electricity distribution industry in Australia' proposed by the plaintiffs. Western Power says that the issue of what is 'appropriate' is ultimately a matter for the trial judge, having heard evidence of what industry practices exist in and around Australia and of all the applicable circumstances.

6 The ultimate issue rule is that an expert witness may not be asked the question which the court itself has to decide. Cross on Evidence (Online version, 31 July 2017) says at [29125] that the following analysis is thought to be substantially accurate:

It is almost impossible for a rule in those terms to be applied, there are many cases in which an expert has given such an opinion, and a rule in those terms has been doubted in the High Court ... A lesser restriction has been recognised, that the expert may not give an opinion on an ultimate issue where that involves the application of a legal standard for example, that the defendant was negligent, that a risk was reasonably foreseeable, ... This view has been particularly espoused by Glass JA, judicially ... and extrajudicially ... His Honour added ... [in an article]:

'It is no less objectionable for questions to be put to the expert or answers to be given which appeal to a legally irrelevant standard of judgment such as whether the defendant's conduct was or was not wrong, improper, unjustifiable, unreasonable or something which should not have happened.'

These last observations, with which I respectfully agree, are ultimately founded on relevance.

7 Mr Price referred to evidence given in solicitor's negligence cases. In Permanent Trustee Australia Ltd v Boulton Permanent Trustee Australia Ltd (1994) 33 NSWLR 735, at 738 739, Young J said:

The attitude I have taken in this type of case is, I believe, vindicated by the authorities and that is:

(a) to reject evidence in which an expert says that in his or her view a solicitor was negligent in doing or not doing a certain thing. This is the question for the court to decide;

(b) to admit evidence of an 'industry wide' good practice;

(c) to admit, subject to relevance, evidence as to what is common practice amongst solicitors of good repute;

(d) not to admit evidence as to what the expert witness solicitor himself would have done if the purpose for which that evidence is tendered is to have me infer that all good solicitors would have done things that way ...

8 Evidence of industry practice is relevant and admissible. However, the experts should not be confined to existing industry practice. A common practice may be found to be negligent if it is fraught with obvious risks or is otherwise inadequate. The standard of reasonable care is measured by what ought ordinarily to be done rather than what is ordinarily done. The court will be assisted by evidence of industry practice in the electricity distribution industry in Australia. The court will also be assisted by evidence of expert witnesses of any risks arising from or inadequacies in industry practice. The experts may give their opinion of both what industry practices existed and what is appropriate practice for scheduled inservice inspections and inspections in connection with works.

Advantages and disadvantages of different practices

9 In relation to the first question concerning scheduled inservice inspections the third defendant proposed that the question include the words:

If there is more than one industry practice, please provide your opinion on the advantages and disadvantages of each.

10 The third defendant says that the experts' responses will provide little guidance or assistance to the court in determining whether Western Power's practices were appropriate, unless the experts are also asked to identify the advantages and disadvantages of each practice which is a central issue arising from the plaintiffs' and the third defendant's breach case against Western Power.

11 Western Power objects to this question on the grounds that the experts have not given evidence on it in any detail in admissible form and further that it is really a matter for submission rather than something which properly requires expert opinion to determine. Thiess objects on the ground that the question invites the experts to provide some normative assessment which cannot ultimately assist the court in determining the content of the relevant standard of care.

12 It is unnecessary to ask this question. The agenda will include the experts' opinion on appropriate practices of inspection. They should be free to express their opinions on existing practice in the industry in Australia and any appropriate practice and to state their position in relation to each point of difference on these matters with other experts. They should not be unduly constrained in how they express their opinion.

13 The defendants say that in relation to scheduled inservice inspections, the experts should be asked to give their opinions in relation to the following question:

Were any of the practices referred to in answer to [the questions concerning industry practices or appropriate practices] affected by applicable legislation or regulation, and if so, how did the legislation or regulation affect the relevant practice?

14 Western Power says that the applicable regulatory framework will affect practice in different parts of Australia and is therefore a relevant matter to consider when determining whether, or to what extent, the experts' evidence of practice elsewhere is applicable in the Perth hills area. The experts should be given an opportunity to address this to avoid the court having to speculate about how different regulatory frameworks may be relevant to their answers to the questions concerning inspections and their opinions generally. In particular, Western Power says, this will be relevant when the court determines whether, and to what extent, the evidence of practices elsewhere can usefully bear upon the issue of what a reasonable network operator in Western Power's position ought to have done.

15 The plaintiffs oppose this question being asked. They say that the meaning of relevant legislation and regulations is a question of law and the experts' opinion on that subject is irrelevant.

16 The meaning of legislation and regulations is a question of law. Whether legislation or regulations impose any duty upon a network operator, and the content of that duty, is a question of law. Those are matters for the court to determine not the experts. However, the court is likely to be assisted by an expert identifying legislation and regulations which, in the experts' opinion, are relevant to the practice of industry participants in other parts of Australia. Furthermore, the court is likely to be assisted by the expert identifying how practices of network operators elsewhere in Australia are affected by relevant legislation and regulations in that jurisdiction. The question should be included in the agenda for the experts.

17 The parties should further confer upon the questions for the expert conclave 2 and submit a further memorandum of the questions.