Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor

Judgment 1JOHNSON J: Senior counsel for Telstra Corporation Limited ("Telstra") has tendered reports of Dr Jeffrey Brock dated 10 May 2010 and 11 July 2010. Objection is taken by Endeavour Energy ("Endeavour") to the tender of the reports. 2As the report of Dr Brock dated 10 May 2010 makes clear, he is a medical practitioner, a qualified Army pilot and an experienced aviation accident investigator. 3Dr Brock was retained by the solicitors for Endeavour on 31 October 2008 to provide a report. The reports which are objected to by Endeavour were provided to the solicitors for Endeavour. Those solicitors were corresponding with Dr Brock as recently as 22 February 2012. 4On 23 March 2012, the solicitors for Telstra notionally re-served Dr Brock's reports on Endeavour. I infer that that step was taken because Endeavour had given notice that it was not intending to rely upon the reports of Dr Brock at this hearing. 5On 30 April 2012 (that is one week before the commencement of this hearing), Endeavour informed Telstra that Dr Brock was required for cross-examination. At about the same time, it appears that Endeavour gave notice that objection would be taken to Dr Brock's reports. 6Senior counsel for Endeavour submits that Dr Brock's reports are inadmissible because there is a failure to expose in the reports his reasoning process for the conclusions reached. Reliance was placed by Mr McIlwaine SC upon the well-known statement of Heydon JA in Makita (Australia) Pty Limited v Sprowles [2001] HCA 305; 52 NSWLR 705 at 743-744 [85], recently applied by the High Court of Australia in Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588 at 604 [37], and in this Court by McDougall J in Bone v Wallalong Investments [2012] NSWSC 137 at [22]-[37]. 7Mr Fagan SC, for Telstra, submits that Dr Brock's first report discloses his reasoning so as to satisfy the relevant requirements as referred to in those authorities. 8To the extent that there was any area where further reasoning may be considered appropriate (and he submitted that there was no such area), Mr Fagan SC sought leave under Rule 31.28 (3) and (4) Uniform Civil Procedure Rules 2005 ("UCPR") to adduce oral evidence. He relied on the course of events that had seen Dr Brock's reports no longer relied upon by Endeavour, and very recently relied upon by Telstra. 9Mr McIlwaine SC opposes any grant of leave under Rule 31.28. He submits that a foundation for a grant of leave has not been demonstrated and that it would, in any event, be prejudicial to Endeavour if Dr Brock gave oral evidence of these matters for the first time at this hearing. 10Dr Brock's first report dated 10 May 2010 sets out, in sufficient detail, Dr Brock's own substantial expertise and experience in the areas of aviation medicine, aviation itself (including the use of helicopters) and aviation accident investigation, including helicopter crash investigation. Dr Brock is well familiar with the model of Bell helicopter involved in this accident. 11Dr Brock's first report contains, as well, a summary of the injuries sustained by Mr Simeon Edwards, including head injuries, brain injury and other bodily injuries. 12Dr Brock then provided answers to a series of questions posed by the solicitors for Endeavour. It is these areas which have attracted the objection. He was asked to express an opinion as to the causes of injuries and he explained various matters (at page 4 of his report). 13He then said at paragraph 3: "The most likely cause of the plaintiff's closed head (traumatic brain) injury is from blunt trauma by a high energy glancing blow to the right side of his head by a main rotor blade. The facial fractures and lacerations are probably attributable to contact with other protrusions in the cockpit such as the over-head roof console containing switchology. The blood spatter pattern to the roof console supports this mechanism of injury." 14The solicitors for Endeavour then posed to Dr Brock questions as to what difference, if any, the wearing of a helmet by Mr Edwards would have made to the injuries sustained by him. Dr Brock proceeded, in some detail, at page 5 of his first report, to explain the significant difference which the wearing of a helmet would have had to the injuries sustained by Mr Edwards. He nominated the type of helmet or helmets which could have been worn and explained what he knew about the availability of those helmets at the relevant time. 15In my view, Dr Brock's report is not deficient in the manner submitted by Endeavour. It does not fail to comply with what has been called the "statement of reasoning rule". 16It is necessary to fairly read Dr Brock's first report as a whole. It is also necessary to keep in mind that many of the factual matters surrounding this accident appear not to be in real dispute. The location of Mr Edwards in the helicopter, the damage to the helicopter itself, its position on the ground and the injuries sustained by Mr Edwards are all referred to in evidence and, to date at least, have not been the subject of any dispute. The obvious fact is that Mr Edwards was not wearing a helmet. Indeed, it was that factor no doubt that led the solicitors for Endeavour to seek an opinion from Dr Brock in the first place. 17I have given particular consideration to paragraph 3 (which I have quoted at [13]) because it was that paragraph which Mr McIlwaine SC focused upon as the part of the report that failed the "statement of reasoning rule". I do not accept that submission. 18In my view, having regard to what is said in the report, Dr Brock has explained sufficiently how he has come to the view concerning causation of the unchallenged serious head injuries sustained by Mr Edwards. He has referred to features of the injuries, and aspects of damage to the cockpit of the helicopter and the location of a blood spatter pattern as bearing upon these matters. The "statement of reasoning rule" does not require a lengthy statement of reasons for a particular opinion being reached. In my view, the deficiency contended for by Endeavour is not present in this report. 19I reject Endeavour's further submission that Dr Brock had not exposed sufficiently his reasoning on the helmet issues. There is an ample expression of reasoning in support of the conclusions which he has reached. 20I observe, as well, that Endeavour's Amended Statement of Claim, filed as recently as last Monday, continues to plead against Precision Helicopters Pty Limited ("Precision"), breaches of duty by reference to the failure to provide suitable helmets and to ensure that they were worn. On the pleadings, at least, Endeavour itself continues to maintain a case against Precision that the helmet issue is a significant issue in these proceedings. This can only relate to the injuries sustained by Mr Edwards, and the impact on those injuries if he had been wearing a helmet. 21If there was any paucity of reasoning in the reports (and I do not think there is), I would without hesitation grant leave to Telstra to examine Dr Brock under Rule 31.28(3) and (4) UCPR. Dr Brock was Endeavour's witness until shortly before the hearing. The fact that Dr Brock's reports were to be objected to and that he was required for crossexamination by Endeavour, were only communicated seven days before the hearing. 22If the point had been reached where leave to examine Dr Brock was required, Telstra has demonstrated exceptional circumstances that would warrant the grant of leave for the adducing of further evidence from Dr Brock. 23In my view, the reports comply with the requirements of the law. If Endeavour wishes to explore or contradict the conclusions of Dr Brock, or his reasons for those conclusions, then the appropriate course is to do so by way of crossexamination. 24I am satisfied that the reports of Dr Brock are admissible and I overrule the objection to their tender. .