EVIDENCE - expert evidence - reports of experts - whether report complies with Expert Witness Code and principles in Makita v Sprowles - assumptions not stated - lack of analysis and reasons - evidence supplemented in the witness box - need for adjournment to enable other party to obtain expert evidence in reply.

PARTIES : Damien Miljus (Plaintiff) Watpow Construction Pty Ltd (Second Defendant)

COUNSEL : B Gross QC & C J Callaway (Plaintiff) M Scott & B Bradley (Second Defendant)

SOLICITORS : Schreuder Partners (Plaintiff) Gadens Lawyers (Second Defendant)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 The background to this matter is set out in my judgment of 7 June 2010 (Miljus V CSR Ltd [2010] NSWSC 569). 2 The Plaintiff relies on a report of Colin Simpson who is an engineer and in particular an automotive engineer. The report is dated 29 January 2007 and was prepared after an inspection made by Mr Simpson of the site on 18 January 2007. As he noted in the report very significant changes have been made to the access to the property of 8 Rignold Street, Seaforth since the accident. 3 The Second Defendant challenges the admissibility of the report on the basis of what is said in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 particularly at [85]. 4 Mr Simpson identifies the documents provided to him which included a copy of the DVD made by the Plaintiff a short time after the accident and which is now exhibit B in the proceedings. 5 Mr Simpson sets out the history of the accident as he understood it. The only significant part of the history that should be set out is what follows: [1] However, whilst attempting to reverse down one section of the track, which incorporated a bend, the Plaintiff noted that he seemed to lose brakes, the truck then rolling backwards and over towards the left (near side) and over the embankment.

[2] Upon noting that he apparently had a brake failure, the Plaintiff yelled a warning to his father and others in the vicinity but was unable to otherwise control the vehicle and was thus not able to stop it from travelling over the embankment and rolling down the embankment, eventually being stopped by a tree. 6 The report then goes on to deal with the accident site as Mr Simpson saw it in January 2007 and part of that section reads as follows: [3] Comparison of the photographs provided to the writer of the actual accident site, taken on, or about, the day of the accident, notes that the track down which the Plaintiff was attempting to reverse the truck was, at best, slightly narrower than the actual entrance to the site as depicted in Photograph No. 3, i.e. the actual track (exclusive of overhanging vegetation) was certainly no wider than 2600mm.

[4] Therefore, in reversing down the track, the actual width of the "footprint" of the prime mover is the approximate actual width of the track. There is thus, therefore, no room for error in the manoeuvring of the truck along the track, bearing in mind also that the available turning circle of the truck is just 18.8 metres and this then, at full lock, is the only turning circle available to a driver, such as the Plaintiff, in negotiating such a track.

[5] It is also noted from the photographs and, in particular, from the video that it would appear that the accident happened as the Plaintiff was reversing to, or actually attempting to, negotiate a right hand bend in the track (viewed when looking down the track).

[6] If any (small) error was made in the tracking of the rear of the vehicle during the attempt to negotiate this bend, then the near side rear wheel assembly would be in distinct danger of travelling over the unprotected edge of the roadway, thus allowing the vehicle to roll over the embankment as would appear to have, in fact, occurred. 7 Mr Simpson appears to express 2 opinions in the report. The first concerns whether the brakes failed as the Plaintiff believed at the time of the accident. The second opinion was Mr Simpson's explanation of how the accident happened. 8 In relation to the first opinion Mr Simpson said this: APPARENT LOSS OF BRAKES [6] It is noted that the Plaintiff, and others, are of the belief that the brakes "failed" and thus caused the accident. The writer is very familiar with the braking system of this particular vehicle and it is noted that the vehicle has a published gross maximum vehicle mass (GVM) of at least 20,870 kilograms (depending upon rear axle specification). [7] It is also noted that the Plaintiff, be well aware (sic) that he required air pressure to "operate" the brakes, stopped on at least two occasions to allow the air pressure within the braking system to replenish and thus prevent a loss of air "causing the brakes to fail". [8] It should be noted that the Ford LNT 8000 truck is fitted with spring brakes (sometimes referred to as "maxi-brakes") on both rear axles. This form of braking system provides an emergency braking system whereby in the case of a loss of air pressure below approximately 70 psi, the rear axle brakes both automatically apply. Positive air pressure is required to release, or to prevent these brakes operating. [9] The writer is, therefore, of the opinion that it is most unlikely that a lack of air pressure had anything to do with this accident event. Indeed, had there been some fault in the vehicle that caused a complete, or partial, loss of air the brakes would automatically apply without any intervention on the part of the driver, i.e. the Plaintiff.

[10] It is also noted from the statement of the Plaintiff dated May, 2001, Paragraph 12, that he noticed "a slight burning smell which I presumed, was the brake drums". This implies to the writer that the Plaintiff was of the opinion that the brakes were becoming overheated.

[11] From the writer's training and experience in trucks of this particular type, the writer is of the opinion that this also is highly unlikely as the braking system, even at full legal loading, has more than sufficient heat dissipation capacity to allow the brake linings and brake drums to dissipate sufficient heat to prevent overheating and "brake fade". 9 He then went on to explain that the chassis of the vehicle in question was designed to flex to enable the vehicle to be driven over undulating and otherwise unmade road surfaces without damage. He noted that in the case of this particular truck with a concrete agitator on the back it allowed the chassis to flex or twist to one side whilst keeping all 4 wheels on the ground under centrifugal loading. He then went on to say: [12] It is also noted that it would appear that the brakes of the truck, after the accident, were in proper working order as it is clear that some inspection would have been made based on the belief of the Plaintiff that they had "failed" and thus led to the accident event.

[13] The writer is, therefore, of the view that the accident, on the balance of probabilities, was the result of the near side rear wheels travelling over the edge of the embankment which formed the edge of the narrow track, down which the vehicle was being reversed, which then caused the rear of the vehicle to roll towards that embankment, thus causing the sensation to the driver that the brakes had failed. The vehicle would roll backwards without apparent braking effort and would also roll towards the near side (to the right as viewed looking down the incline).

[14] The writer, therefore, forms the view, based on the available evidence, that the Plaintiff's view that the brakes had failed, whilst understandable, is incorrect and that what actually occurred was that the near side rear axles of the truck were inadvertently driven over the embankment, causing the truck to roll down the embankment and down the track as it did so, giving such an impression of brake failure.

[15] In the opinion of the writer, based on the writer's experience in driving and operating such trucks and also as an Engineer, the track down which the Plaintiff was required to drive the vehicle was not suitable, or safe, for such a vehicle in that the track was too narrow, incorporated bends which the truck could not safely negotiate whilst remaining on the centre of the track and which incorporated an unguarded drop to the right hand side (when viewed looking down the track).

[16] In the opinion of the writer smaller trucks, for example 3 or 4 cubic metre capacity, ought to have been employed or, alternatively, concrete should have been pumped to the site from a station at street level.

[17] As the writer understands, this latter alternative was that which was eventually employed for the transfer of concrete to the actual construction site following the Plaintiffs accident. (italics and bold added) 10 To make this judgment easier to understand I have numbered the paragraphs I have set out from Mr Simpson's report although they were not numbered in the original and I have omitted some paragraphs. 11 At an early stage in the proceedings objection was taken to para [12] of Mr Simpson's report. Since there was no evidence to form the basis of that opinion, Mr Gross conceded that that paragraph should be rejected. That immediately gave rise to problems with the subsequent 2 paras (paras [13] and [14]) because each commenced by using the word "therefore". I initially ruled that the remainder of the report was admissible because I did not consider that the word "therefore" when twice used was only dependent, or dependent in any substantial way, on the paragraph that was rejected. I also indicated that the whole of the evidence needed to be weighed up to determine precisely how the accident happened and that that determination would not necessarily only be based upon what the Plaintiff and/or his father and/or Mr Michael gave evidence about. Rather, the determination might involve inference from particular matters that occurred and particular aspects of the scene of the accident. I shall return to a consideration of this aspect of the report presently. 12 When Mr Simpson came to be called to give evidence on the 7th day of hearing (2 June 2010) the Second Defendant and the Plaintiff were the only remaining parties in the case. Mr Scott of counsel for the Second Defendant informed me that he continued his objections to Mr Simpson's report that had been debated the previous week. His principal submission was that the hypothesis put forward Mr Simpson in para [13] of his report was contrary to the evidence that had been given by the lay witnesses, including the Plaintiff. After some short debate I informed Mr Scott that I noted his objection to para [13] of the report but would not exclude it at that stage. I said that Mr Scott could cross-examine Mr Simpson and renew his application to exclude parts of the report after that had been done. I did not consider Mr Scott would be disadvantaged by that procedure. Mr Scott expressed concern that Mr Simpson would give a rationale for the conclusions that he drew which were not contained within his report. 13 Mr Simpson was called and, to clarify what appears in bold in para [14], he gave this evidence in answer to a question from Mr Gross SC: I have never at any time assumed that the truck ended up much differently to where it is shown in the photographs. I am a little surprised that the words "rolled down the embankment" are taken to assume that it just rolled and rolled and ended up down in a gully somewhere. However, be that as it may, the edge on the corner that the nearside wheels are approaching on the approach to the corner is an angled section of roadway, or the shoulder of the road is very heavily cambered so as to eventually drop off to an angle somewhere of the order of 30 or more degrees leading then down into a gully. 14 Mr Scott cross-examined Mr Simpson and then renewed his application to reject the report. He drew my attention in particular to para [85] in Makita and particularly where Heydon JA (as his Honour then was) said: [S]o far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. 15 Mr Scott submitted that Mr Simpson had not set out the facts on which he based his conclusion, particularly in the light of the contrary evidence from the Plaintiff about where the accident happened and the absence of any evidence from Mr Miljus Snr and Mr Michael about the wheels of the truck going off the road on what was described as the right hand bend, that is, the bend in the road that curved to the right if a vehicle was being driven forwards down the road. Mr Scott submitted that there was no statement of what Mr Simpson's understanding of the speed of the vehicle was, nor an analysis of the various forces that would operate by reason of the high centre of gravity to which Mr Simpson referred and in particular at the time when the rear near side wheels were said by Mr Simpson to have moved off the roadway. 16 In my opinion, Mr Simpson has provided a proper basis for his first opinion, namely, that the brakes on the vehicle did not fail as the Plaintiff believed. This is because he set out his knowledge of the type of vehicle concerned including the knowledge that it is fitted with what are called maxi-brakes that provides an emergency braking system where the loss of air pressure in the brakes drops below 70 psi. Although he accepted that there had been no inspection of the brakes after the accident he placed some reliance on a statement which had been provided to him by the Plaintiff's solicitor from a Robert Sabaz who made reference to the working condition of the brakes in the week the Plaintiff was operating out of the Brookvale Depot of CSR. 17 In his oral evidence Mr Simpson said that it would be most unlikely that there could be a sudden brake failure immediately after 2 or 3 occasions when the air pressure had been built up in the brakes in the manner described by the Plaintiff. Because they were working up until a reduction in pressure was noted meant that everything else was working correctly. Mr Simpson said that the replacement of the engine in the vehicle and the shortening of the chassis, about which the Plaintiff had given evidence, could not possibly make any difference to the existence or working of the braking system in the vehicle. 18 The position is not ideal, of course, that there was no inspection of the brakes after the accident. However, I consider that the reasons put forward by Mr Simpson in paras [6] to [11] of his report are sufficient to comply with the requirements of Makita in relation to that opinion. 19 The second opinion of Mr Simpson contained in paras [13] and [14] is not in the same category. Mr Simpson provided a great deal more evidence whilst in the witness box to justify what must really amount only to a hypothesis of how the accident happened. That evidence was provided in response to a number of questions I asked Mr Simpson and also to cross-examination from Mr Scott. None of the analysis provided in those answers of Mr Simpson was contained in his report. That necessarily meant that the Second Defendant and its lawyers were in a position of great disadvantage in being able to test both the hypothesis itself and the explanations given by Mr Simpson for the first time in the witness box. Mr Scott informed me that in those circumstances he needed to obtain instructions to engage an automotive expert. He submitted that Mr Simpson should prepare a supplementary report detailing the substance of the evidence that he had given and any other analysis that Mr Simpson needed to make to justify his conclusions. 20 Mr Gross opposed that course but particularly directed his submissions to the cost that would be involved for a Plaintiff who was having his case conducted by legal advisors on the basis that it was being conducted. It was no secret that the legal advisors were appearing on a contingency basis for the Plaintiff. However, Mr Simpson, as his evidence made clear, was a paid expert who was not operating on a contingency basis. 21 In providing his explanation Mr Simpson had assumed that the Plaintiff's vehicle started to lose traction at a particular point on the road which he does not identify. It must have been close to the right hand bend (and forwards down the road) which enabled him to explain how the rear near side tyres left the road surface. He did not provide any explanation in his report to support how the vehicle turned in such a way that its rear wheels must have come back onto the roadway to enable it to end up in the position identified in photograph 3 of exhibit C. Moreover, because of what he said in para [13] of his report it might have been concluded that Mr Simpson believed the vehicle rolled right off the road. However, he gave the explanation in the witness box that I have set out in para [13] of this judgment. That was also an explanation given for the first time. The hypothesis gained no support from the evidence of Mr Miljus Snr nor from Mr Michael, although it is fair to say that Mr Michael seems to have been facing the other way when the truck started to lose traction. 22 When faced with these considerable inadequacies there are 2 alternatives. One is to reject all that part of Mr Simpson's report leaving the Plaintiff without any engineering support for the mechanics of the accident. The other alternative is to permit the Second Defendant to obtain an automotive engineer to prepare a report to answer both what Mr Simpson had said in his report and also his explanation given in the witness box. The latter course seems fairer to both parties in my opinion although it necessitates an adjournment of the further hearing of the proceedings. 23 In the circumstances of the case being conducted by the lawyers on a contingency basis where the preparation of a further report from Mr Simpson would involve the outlay of more money by or on behalf of the Plaintiff, and because Mr Simpson had given the explanation he wanted to in the witness box, the better course seems to me not to require a further report from Mr Simpson but to regard Mr Simpson's explanations provided in the witness box as supplementing his report. It is that evidence which the Second Defendant needs to meet in any report it chooses to obtain and/or serve. 24 Mr Gross submitted that what I should order was that there be a single expert rather in the nature of a court expert, instead of the Second Defendant being allowed produce its own expert's report. That did not seem a fair process when the Plaintiff still wanted to rely on Mr Simpson's report and his supplementary evidence in the witness box. Speaking generally, a single expert is used in personal injury matters to deal with some aspects of damages (see, for example, Professional Negligence List Practice Note (SC CL 7 para 35(h) and the General Case Management List Practice Note (SC CL 5 para 43)). I do not consider it appropriate to order a single expert in relation to a serious matter of causation in a situation where the Plaintiff has obtained a report and led evidence from its own expert. 25 Mr Gross submitted also that I should order that the Defendant serve the expert report regardless of what conclusion the expert comes to. Although such an approach has been adopted in some jurisdictions in Australia it is not a practice which has been adopted in New South Wales. Although the approach to expert witnesses might be thought to be edging towards such a position, I do not consider it appropriate to compel a party to serve a report if it choses not to do so. It is the more so in the present circumstances where the reason for the adjournment to enable the obtaining of a report by the Second Defendant is that the Plaintiff's report was totally inadequate. 26 The parties agreed that I should reserve the question of costs of the adjournment. 27 The orders that I make are these:

1. Upon the Second Defendant's application proceedings are adjourned part heard to a date to be fixed.

2. The costs thrown away by reason of the adjournment are reserved.

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