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[2013] NSWSC 411
Supreme Court of NSW
2013-04-23
Beech-Jones J
Original judgment source is linked above.
Judgment - Ex tempore on admissibility 1Objection is taken by senior counsel for the defendant, Mr Burbidge QC, to the tender on behalf of the plaintiff of two expert reports. To address the objections it is necessary to briefly outline the nature of the proceedings. 2The plaintiff sues the State of New South Wales as the legal entity responsible for the conduct of the train service between Sydney and Newcastle on 29 January 2001. On that day, when he was eight years old, the plaintiff was travelling on the train with his two older brothers. Some minutes after the train left Morisset Train Station, the plaintiff fell from the western side of the train and was severely injured. 3It appears to be common ground that the only possible exit point or points from the train were the doors of the train. In particular, it seems at this stage most likely that he exited from one of the doors on the western side of the front carriage as the train travelled northwards. It is fair to say that how the plaintiff could have fallen through the doors is a matter of some conjecture and, the plaintiff submits, ultimately one of inference. In his opening, senior counsel for the plaintiff, Mr Barry QC, submitted that the Court would have to determine how the accident occurred by the process of drawing inferences from the undisputed events, the characteristics of the train and, in particular, the operation of its doors. 4The particulars of negligence alleged against the State of New South Wales are as follows: "a. Failing to take reasonable care for the Plaintiff's safety and well being; b. Failing to maintain the railway doors to prevent them from opening without warning; ... e. Failing to have in place a system or mechanism to identify whether a door remained open at the time for departure of the train from a station; ... g. Failing to observe that a door remained open when the train departed from the previous station; h. Failing to observe or detect that a door had been opened or come open whilst the train was in motion; ... k. Failure to display instructions on the train for a passenger to advise the rail guard and/or train driver of a door malfunction; l. Failure of the driver of the train and/or rail guard to properly check the operation of the train doors before putting the train in motion; m. Failure of the railway staff at each station including but not limited to Morisset on this occasion and on all previous occasions during which rail car DJM8124 was in service, to:- i. Notice a train door not closing properly ii. Inform the rail guard that the door was not closing properly; n. Failure to put remedial measures in place to deal with a door which permitted it to pivot, leaving a gap through which a passenger could fall; o. Failure to put remedial measures in place to deal with a door which became stuck temporarily or permanently in a position where if [sic] left a gap through which a passenger could fall; p. Failure to properly maintain the train doors to:- i. Ensure that they did not pivot when closing and leave a gap. ii. Ensure that they slid smoothly and did not become stuck when closing; q. Failure to train staff in the way in which the door was capable of malfunctioning; and r. Failure to take simple mechanical precautions to prevent the door from pivoting and/or leaving a gap when closing." 5Subparagraph 8(a) does not take the matter very far and subparagraph 8(b) was said, in particulars, not to be relied on. It is noticeable that the manner in which those particulars are framed does not confine the plaintiff to identifying the precise means by which he fell from the train. 6In his opening, Mr Barry QC raised three possibilities as to how the accident happened. The first was that there was deliberate interference with the doors of the train, and in particular interference at Morisset Train Station, that prevented the doors from closing. The second possibility was said to be that the doors opened in the course of the train travelling. The third was what was described as a "trap and grab". That is, the doors on the railcar closed trapping the plaintiff in them when it left Morisset Train Station and he wriggled out of the doors a few minutes later but was ejected as the train went around a sharp bend. 7In his evidence, the plaintiff said that he had some recollection of how the accident happened. He said: "I was standing at the door and the doors suddenly opened". 8During the course of submissions on the admissibility of these experts reports, Mr Burbidge QC submitted that the plaintiff was, in effect, confined to running a case that was consistent with this evidence, namely that the doors were closed and only suddenly opened at the time he fell from the train. I do not accept that contention. There is no reason, as a matter of principle, why the presentation of a plaintiff's case is solely confined to the version of events the individual plaintiff gives in the witness box. In circumstances where, at the time of the accident, the plaintiff was only eight years of age, suffered significant injuries, including head injury, and gives their oral evidence some twelve years later, I see no reason as a matter of practice, or even good forensic sense, why the plaintiff should either limit themselves or be confined to a case which is focussed on the recollections of a boy who was eight years old at the time of the accident.
Mr Donohue's Report 9The first of the two contested reports sought to be tendered was from an engineer, Mr Patrick Donohue. Mr Donohue's report does not address the questions that he was asked to express opinions upon. However, in answer to a question from me yesterday, he stated as follows: "My question that I was answering was what was the system, the design system of the door, all its key components and what could I, as an engineer, identify from that. And from that basis, if I did discover defects, what type of defects were they and were they, if you like, concurrent and running every time there was a run of the train set and therefore what sort of errors could occur to the door and door system." 10The first part of this answer suggests that he was asked, and generally advised upon, the "design system of the door" and its "key components". The second part of this answer suggests that, if he determined that there were defects, he was to express views about the nature of those defects and their consequential effects upon the running of the train system. 11The terms of his report are overwhelmingly concerned with the second aspect of this answer. In particular, he writes at length about various "design defects" in the train doors and how those defects were manifest at the "concept design stage". The overriding theme of his report is summarised by his observation that: "[there] is such a scale of design error in this door that the doors were inevitably going to fail". 12One of the bases upon which Mr Burbidge QC objected to the entirety of Mr Donohue's report is that in addressing itself to design defects in the train doors the report is said to travel outside the pleaded case. In my view, that contention is clearly correct. I have already set out the particulars of negligence. None of them allege that the State of New South Wales was negligent in the design of the door system in place on the train in question or in selecting that door system. 13Mr Barry QC submitted that at least some aspects of Mr Donohue's report have utility in that they are said to provide a description of the doors' operations. In effect, he submitted that it should be admitted in whole or in part for the purpose of elucidating that issue. There are two difficulties with this submission. First, the manner in which Mr Donohue's report is written is such that any observations he makes as to the doors' operation in situ is, at best, only an incidental aside to his criticisms of the design and installation of the doors. Neither the defendant nor the Court should be required to fillet his report in an effort to identify some minor morsel of admissible material. 14Second, to a very large extent, Mr Donohue's report addresses what appears to be the wrong version of the closing and locking mechanism of the train doors. At length, he addresses the operation and allegedly faulty installation of a "Festo" brand closing door mechanism. It appears to be common ground that the relevant brand in use on the train in question was a "Parker Hannifin" brand and that there are significant differences between the two. 15Mr Barry QC submitted that it appeared from some drawings that were annexed to Mr Donohue's report that he did, at least in part, opine upon the Parker Hannifin mechanism. I am not persuaded that he did but, in any event, even if he did it simply adds to the confusion about the evidentiary value of those parts of his reports which could be said to address the operation of the door on the train in question, even assuming those parts can be isolated from his criticism of its design and installation. 16Accordingly, it follows that I reject the tender of Mr Donohue's report. 17For the sake of completeness, I also note that Mr Burbidge QC submitted that the report should be rejected on the basis that Mr Donohue had adopted the role of an "advocate". I understand this submission to be to the effect that Mr Donohue did not adopt an independent or impartial approach to his task but, instead, his conclusions and opinions reflected either his sympathies with or allegiance to the plaintiff in this case. 18In and of itself such a submission, even if accepted as a matter of fact, does not raise a matter that warrants the rejection of an expert's report. In Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588 at [31], the plurality judgment addressed the significance of identifying the particular fact in issue in determining the relevance of an opinion provided by an expert. This is reflected in the reasons that I have already given for rejecting Mr Donohue's report. Further, at [32], the plurality stated: "To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge'. The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience." 19It may be that the use of intemperate and emotional language by an expert in their report will have the consequence that the trier of fact is unable to be satisfied of the second of the two criteria of admissibility referred to in this extract; i.e. the trier of fact will not be satisfied that the opinion given by the witness is "wholly or substantially based" on their specialised knowledge. Such language might instead lead the trier of fact to conclude that the opinion is based upon some personal prejudice or bias held by the expert. However, that said, it is not appropriate on a voir dire to impugn the expert's independence as a means of seeking to establish that their reasons, as recorded in their report, do not in fact reflect their true reasons for giving their opinion (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 54 ACSR 326). Provided that it is apparent from the terms of their report that the opinions that they express are based on their specialised knowledge, then that is sufficient to meet the threshold for admissibility referred to in Dasreef at [32]. 20Questions of bias and the expert assuming the role of an advocate are of course matters which go to the ultimate weight to be attached to the expert's report but generally not to its admissibility. Accordingly, I do not accept the other basis upon which Mr Burbidge QC sought the rejection of Mr Donohue's report.
Mr Clemens' Report 21Mr Burbidge QC also objected to the tender of a report by Mr Klaus Clemens. Mr Clemens is in effect a "safety expert". At the outset, Mr Burbidge QC made two in globo challenges to Mr Clemens' report. First, as with Mr Donohue, Mr Burbidge QC submitted that Mr Clemens had taken on the role of "advocate". I was referred to certain emails passing between Mr Clemens and the plaintiff's solicitors which, it was submitted, indicated a lack of detachment on Mr Clemens' part. I reject this basis of objection for the reasons I have already outlined. 22Second, Mr Burbidge QC submitted that Mr Clemens was not addressing the plaintiff's case which he says is confined to a factual scenario which involved the plaintiff riding on the train, the doors of the carriage suddenly opening up and him being ejected. I have already rejected the premise of this submission that the plaintiff's case is in that way confined. 23I now turn to Mr Clemens' report. In his report, Mr Clemens states that he was asked to address three questions: "1. Were there any failures in safety on the part of State Rail in the circumstances? 2. What was reasonably required for a safe system of work in the circumstances? 3. What reasonable measures you consider were available to State Rail and are likely to have avoided the risk of injury eventuating, as it did, in the circumstances of this incident[?]" 24Mr Clemens describes his qualifications in his report. They include fifteen years experience as a consultant and executive manager with what I understand was the entity operating the New South Wales railway service. He describes his experience in having investigated safety accidents and establishing rail safety systems. He also describes various inquiries and proceedings in which he has given evidence as a safety expert. Although giving expert evidence does not make one an expert, I am satisfied that the balance of the matters that Mr Clemens points to have the consequence that he does have, based on his experience, a specialised knowledge in relation to rail safety matters. 25In the balance of his report, Mr Clemens expresses various conclusions which, in broad terms, fall within the ambit of the three questions that were asked of him. Mr Burbidge QC made various criticisms of his report. I mean no disrespect either to the maker of the report or the criticisms made by Mr Burbidge QC but, in large part, they were not directed to matters of admissibility but to matters of weight. 26However, three matters in particular should be noted. First, in various parts of his report Mr Clemens addresses matters concerning the cause of the plaintiff's accident. It was not submitted that by reason of his experience he was not qualified to express such conclusions. It is otherwise to be noted that, to the extent that these might be said to be ultimately questions for the Court to determine, then the so called ultimate issue rule has been abolished (see s 80(1) of the Evidence Act). Thus, at p 13 of his report, Mr Clemens stated: "Because of its construction a passenger on a V-set has then only three possibilities for leaving the train unassisted by the crew once the saloon doors are closed by the Guard: 1. A broken window to exit through; 2. A broken or failed saloon door to exit through; 3. A broken bellows, which is a heavy curtain of rubber that encloses the walkway between the carrriages. There is no evidence for a broken window or inter-car bellows having been damaged. In my opinion it is unlikely that an eight year old child forced the doors against the pressure of the door motors. The evidence strongly supports the saloon door having failed to close to such a degree that the child fell out or was ejected out by the movement of the train." 27The reference to a "V-set" is to the type of train that the plaintiff was travelling on when he suffered his accident. The reference to the "saloon door" is somewhat controversial. In context, I take it to be a reference to the exterior door to the train. 28Criticism was made of the last part of this extract as to what was the reasoning process that led to the conclusion that the evidence strongly supported the saloon door "having failed to close". I think a fair reading of this passage is that it was really a process of logical exclusion conducted by the author. In effect, the author has identified the only possible means by which an eight-year-old boy could have left a railway carriage travelling at around 100 kilometres an hour. There was no evidence of a broken window or any problem with the walkway between the carriages. This left the door. The writer's experience was such that he did not accept that a child could, of his own motion, have forced the door against the pressure of the door motors. This only left as a logical possibility the conclusion expressed in the last part of the paragraph. Whether or not I accept that reasoning is of course a different matter, but this passage certainly passes the threshold for admissibility as explained in Dasreef at [32]. 29Later, at p 16 of his report, Mr Clemens states: "In my opinion then I conclude that one of the root causes of the door failing to secure the passenger [sic] in the train was an inadequate engineering or operating description of the performance or tolerances of the door which allowed the unsafe mechanism to continue to operate in the network and result in the injuries to the child passenger." 30The reference to the "operating description of the performance or tolerances of the door" in this conclusion is to the preceding discussion in the report where the author contends that the defendant's operating procedures had not clearly identified what constituted a non-functioning door. There is evidence that, after the accident, the doors in the front railway carriage of the train from which the plaintiff fell were tested and that at their base, at least some of them, displayed a gap of approximately 100 millimetres between the two doors where there was supposed to be none. Mr Clemens was critical of the procedures of the defendant in failing to give clear instruction as to whether such a gap indicated the door was not functioning properly and should be put out of service. 31The difficulty with the conclusion that he expresses at p 16 is that without knowing what assumption Mr Clemens made as to the reason why the door did not close one cannot discern how the allegedly inadequate description of door tolerances was causally connected to the plaintiff falling out of the train. For example, if the reason the door remained open was that human intervention had prevented it closing at the last train station then any alleged deficiency in the description of the doors' tolerances would be irrelevant to the fact of the plaintiff falling out of the train. If, on the other hand, the presence of a 100 millimetre gap was said to be somehow connected with the plaintiff falling through the doors then one can see a potential causal connection between a failure to clearly prescribe an acceptable tolerance for the door and the accident. The absence of the explanation of that step has the consequence that, at this point, I cannot be satisfied that the conclusion that Mr Clemens expresses in this paragraph is wholly or substantially based upon his specialised knowledge. In effect, I do not know what it is based upon. The consequence is that I will reject this part of his report but I will grant the plaintiff leave to adduce evidence to clarify it. 32Second, at pp 18 to 19 of his report, Mr Clemens sets out a flow chart of events and conditions which leads from the train arriving at Morisset to the plaintiff falling from the train. In his legend to his flow chart, he indicates what facts are said to be known events and what facts are said to be assumed. 33Mr Burbidge QC was critical of this flow chart, in particular contending that some of the events which were said to be known events were anything but known and were unlikely to be established by evidence. Whether those criticisms are made good or not is not a basis for rejecting the admissibility of the report (see Dasreef at [41]). 34Thirdly, Mr Burbidge QC pointed to the following part of Mr Clemens report on page 17: "Even on straight platforms it is difficult to see the furthest doors because of the oblique angle over the length of the train as illustrated in figure 7. On platforms even slightly curving away from the Guards [sic] position it is impossible to reliably decide that the doors are closed and that there are no obstructions in the door. In my experience this is reflected in the high incidence of passengers being struck or trapped in doors and the less frequent but more dangerous dragged by train or fall from train in the RailCorp network." (emphasis added) Mr Burbidge QC took objection to the last sentence in this extract. 35The difficulty with this last sentence is that it is a wrapped up conclusion about a number of reasonably serious incidents not fixed as to time and without any detail. It does not, in my view, appear to add, or for that matter subtract, from the observations made in the balance of the paragraph. If it was to remain, it would have the potential at the very least to result in an "undue waste of time". The defendant would be entitled to litigate to whatever lengths one could imagine about this characterisation of what has occurred with passengers being trapped or dragged by trains. 36I will reject this sentence under s 135 of the Evidence Act 1995.
Conclusion 37Accordingly, I reject the tender of Mr Donohue's report. 38I reject the third paragraph on p 16 of Mr Clemens' report beginning "[i]n my opinion" and ending in "passenger", but I grant the plaintiff leave to adduce further evidence from Mr Clemens on that topic. 39I reject the sentence beginning "[i]n my experience" and ending "RailCorp network" on page 17 of Mr Clemens' report. 40I otherwise admit the balance of Mr Clemens' report.
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Fuller-Lyons
State of New South Wales
[2011] HCA 21