Jermen v Shell Company of Australia Ltd and Anor

CITATION : Jermen v Shell Company of Australia Ltd and Anor [2003] NSWSC 1106 HEARING DATE(S) : 17/09/03; 18/09/03; 19/09/03; 26/09/03; JUDGMENT DATE : 2 December 2003

JUDGMENT OF : Shaw J DECISION : Evidence admitted.

CATCHWORDS : Evidence - whether opinion evidence of people in the professional soccer industry possess special knowledge based on experience - whether permissible to agree to be bound by the expert Code of Conduct after filing of statements Civil Liability Act 2002; LEGISLATION CITED : Evidence Act 1995 s 79 Supreme Court Rules 1970 Pt 36 rr 13A, 13C; Sch K ACCC v Emerald Ocean Pty Ltd [2002] FCA 740; All State Life Insurance Company v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79; Barak Pty Ltd v WTH Pty Ltd [2002] NSWSC 649; Commissioner for Children and Young People v V (2003) 56 NSWLR 476; Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980; Godfrey v NSW (No 1) [2003] NSWSC 160; (2003) 25 NSWCCR 291; Harding v Bourke (2000) 48 NSWLR 598; HG v The Queen (1997) 197 CLR 411; CASES CITED : Hyde v Energy Australia (1999) 92 IR 409; Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485; Langbourne v Sate Rail Authority NSW [2003] NSWSC 537; Norris v Blake (No 2) (1997) 41 NSLWR 49; Quick v Stoland Pty Ltd (1998) 87 FCR 371; R v Yilditz (1983) 11 A Crim R 115; Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; Velevski v The Queen (2002) 76 ALJR 402; Western Sydney Area Health Service v Gibson (2001) 109 IR 359; Marin Jermen - Plaintiff PARTIES : Shell Company of Australia Limited - First defendant Colchester GR Pty Limited - Second defendant FILE NUMBER(S) : SC 20256/02 L King, SC with A McInerney - Plaintiff COUNSEL : D Miller with G Young - Defendants

Carroll & Associates Solicitors - Plaintiff SOLICITORS : Vardanega Roberts Solicitors - First defendant Moray and Agnew Solicitors - Second defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Shell Company of Australia Limited (First defendant);

JUDGMENT 1 Shaw J: This interlocutory judgment concerns the admissibility of a number of statements which have been characterised in the course of argument as expert opinion evidence. 2 The submissions raise interesting and novel questions concerning the application of the relatively new rules of this Court which require expert witnesses to consider, adopt and apply a Code of Conduct (see Schedule K to the Supreme Court Rules 1970). These provisions commenced on 1 March 2000 and are now embodied in Part 36 r 13C of the Rules and Sch K. 3 Mr Jermen was a soccer player who in 1999 was employed on a full time basis by the Sydney United Soccer Club and who was, in the past, also employed by various overseas teams. His role in the teams was as a striker; a player intended to score goals for the team. How promising his career was to be, whether he was an actual or potential 'star' is a matter of controversy in these proceedings. 4 The plaintiff says that at or about 11.40 am on 12 April 2001 he drove his motor vehicle into the Darlinghurst Shell Service Station, a premises said to have been designed and operated by the first defendant and, a facility that invited customers onto the premises for the sale of petrol. The plaintiff says that he went to purchase petrol and when walking back to the drivers door of his vehicle, he stepped onto a metal plate in the driveway of the service station which is alleged to have been defective in that when he stepped onto the plate with his right foot, the edge of the plate gave way into a cavity about 30 cm deep below the surface of the driveway and the plaintiff's right foot fell into that cavity. The plaintiff felt immediate pain in his right foot, ankle and heel. 5 The result of the alleged injury was a substantial requirement for medical treatment including surgery on 11 June 2002 and intensive, regular physiotherapy. The result of the surgery, according to the opinion of 7 November 2002, of Dr John Harrison, orthopaedic surgeon, was that, although the wounds healed without complication, problems of discomfort at or behind the right heel continued. It is said that he is not able to run, jog, or twist confidently upon his right leg. If that diagnosis is correct then it is understandable that the plaintiff was greatly hampered in terms of his career prospects in the international soccer playing labour market. 6 The evidence that is the subject of this application relates to certain statements concerning the potential of the plaintiff as a soccer player and the prospects of his career in the international soccer player labour market. 7 The statements which the plaintiff seeks to read and which are the subject of objection, have been made by deponents Drago Zulj, General Manager of the Sydney United Soccer Club; Edward Krncevic, Professional football coach; Lou Sticca, FIFA licensed Players Agent for Tribal Sports Management Pty Limited; Andrew Paschalidis, Media Commentator, Fox Sports Australia; John Didulica, General Counsel for the Professional Footballers' Association. There is also a letter dated 30 April 2003 from a Mr Paul Okon which has been tendered. With some minor exceptions, contained in the evidence of Mr Didulica, the defendant objects to the admission of the statements and the letter on a number of bases. 8 There has, of course, been no objection to the Court looking at the documents in order to determine these points of objection. The material which is tendered is illustrated by the following comments of Mr Zulj, that is, since the injury to the plaintiff, Sydney United Soccer Club had decided not to go ahead with an offer of a five-year professional contract. Other, more contentious comments include a view that the injury may stop the plaintiff playing for a long time, or 'it may put an end to his career'. The opinion is then proffered that, prior to the plaintiff being injured, he had a 'very good future in soccer' and he 'had the potential to go all the way'. Subsequent to expressing these views, Mr Zulj attested by affidavit that he had later read a copy of the Expert Witness Code of Conduct contained in Sch K of the Supreme Court Rules. His proposed evidence is to say that, having now read that Code, he agrees to be bound by it and does not wish to alter the opinions earlier provided. 9 This is the common situation will all other proposed witnesses. In other words, they affirm earlier views on the 'star' potential of the plaintiff after having read the Code of Conduct. 10 Another example of this evidence is that of Mr Krncevic who has been the head coach of the South Melbourne Football Club. He proffers a view that the plaintiff was an 'exceptional player' and was 'capable of playing in any league in the world'. He gives examples of other comparable Australian soccer players who are leading professional footballers now playing in Europe. He also expresses the view that a footballer's professional peak occurs at the age of 28 or 29 years and that the average professional footballer retires at the age of 33 or 34 years. 11 Other statements are to like effect, including observations that the opportunity to play in Europe is highly sought after by players and that the plaintiff, at the age of 28, should now be at the top of his game. 12 The letter from Leads United to the plaintiff's instructing solicitors of 30 April 2003 proffers the view that a player playing in Europe receives 'considerably more exposure´ than he would if playing in an Australian soccer league. It is said that competing in Europe can lead to many other opportunities, depending on performance. It is further said that many professional footballers continue to play 'at the top level' until the age of approximately 35 years. 13 It is in this context that the question arises as to whether this evidence is admissible: (a) when the rules of this Court regarding the Code of Conduct were not complied with; and (b) if admissible despite this breach, whether it is admissible pursuant to s 79 of the Evidence Act 1995. 14 Another question on this first aspect is whether it is acceptable for the proposed witnesses to swear to adhere, ex post facto, to abide by the Code. 15 However, prior to coming to the question whether non-compliance with the rules means that the evidence should be rejected, the defendant objects that there has not been proper service of this material and, more substantially, it is said that the opinions are not expert opinions but rather guesses or some other speculative opinion rendered inadmissible pursuant to s 76 of the Evidence Act. 16 As to the lack of proper service, attention is drawn to the provisions of the Rules (Part 36 r 13A(3)(c)) requiring that expert reports should be provided 'not later than 21 days before the date on which the Court determines the date for trial' with the exception that the court may otherwise order. It is said by the defendants that since the matter was called over before Whealy J on 9 May 2003 these statements should, in the ordinary course of events, have been filed 21 days prior to that event, since at that call over Whealy J fixed the matter for trial to commence on 17 September 2003. The Court has express power in the Rules to waive compliance with the provision as to the date of service, and would in any event have an inherent power to do so. The Rules of this Court should be the servant, and not the master, of justice. That is, the rules should not act so as to frustrate or otherwise limit the requirements of doing justice between parties: Harding v Bourke (2000) 48 NSWLR 598 at 603 per Mason P (with whom Meagher and Heydon JJA agreed); see also Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 367; Hyde v Energy Australia (1999) 92 IR 409. I am unable to identify any prejudice to the defendants in relation to the late service of these reports, especially in the context where the trial has been adjourned, substantially because of the availability of counsel, until next year. In these circumstances the defendants have enough time to consider the material, formulate appropriate cross examination (if the material is admitted) and consider whether alternative evidence should be tendered in the defendants' case. In these circumstances I would 'otherwise order' and waive compliance with the Rule regarding service of the material proposed to be tendered. 17 The second point suggests that each of the witness' statements about the plaintiff's abilities and prospects are subjective and no more than predictive opinions. However it is conceded that the fact that the opinions are not supported by a scientific approach is not a basis to reject the evidence: Norris v Blake (No 2) (1997) 41 NSLWR 49 at 68 per Clarke JA. It is also accepted that these statements are informed by the witnesses' knowledge of the plaintiff and the football industry generally. However, it is said that these statements combine speculation, inference, personal, and second hand views constituting a process of reasoning which goes well beyond a field of expertise: HG v The Queen (1997) 197 CLR 411 at [41] per Gleeson CJ. 18 Section 79 of the Evidence Act allows the admission of material by a witness based upon his or her specialised knowledge. That term is not defined in the statute except as knowledge gained through study, training or experience. Gaudron J in Velevski v The Queen (2002) 76 ALJR 402 at 416 [82]: The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which is sufficiently organised or recognised to be a sufficiently reliable body of knowledge or experience. So to say, is not to say that an expert cannot have regard to matters of ordinary experience in formulating his or her opinion. So much is expressly acknowledged by s 80(b). 19 The courts have accepted opinion evidence in a wide variety of areas of specialised knowledge. The plaintiff gives examples as follows: s Marketing: Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [7]; s Physical education and weight management programmes: ACCC v Emerald Ocean Pty Ltd [2002] FCA 740 at [13]; s Attitudes of a community: R v Yilditz (1983) 11 A Crim R 115; s Investor behaviour: All State Life Insurance Company v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85; s Behaviour of prison escapees: Godfrey v NSW (No 1) [2003] NSWSC 160; (2003) 25 NSWCCR 291. 20 In Quick v Stoland Pty Ltd (1998) 87 FCR 371 a Full Court of the Federal Court of Australia considered admissible the opinion of an accountant that a company was insolvent. Branson J said (at 375): [the accountant's] opinion as to the company's insolvency are heavily based on matters of fact and, in some cases, arguably unsubstantiated factual inferences. However, it seems to me, that [the accountant's] specialised knowledge does qualify him to form views and to make judgments as to solvency based on financial statements and other material of the kind he refers to in his report. 21 Her Honour went on to note that: The weight appropriate to be accorded to such opinion is, of course, another matter. 22 Finkelstein J said (at 383): It may be doubted whether [the accountant] did give the evidence of an expert. Much of what he said would have been apparent to the trial judge from his own examination of the books of account. However, the reasons for decision show that the trial judge received some assistance from the opinions expressed by [the accountant] and this is a sufficient basis for holding that his evidence was admissible. 23 On the other hand Emmett J thought that there was a 'real question' as to whether the opinions expressed on insolvency were admissible (at 381). 24 In an article entitled, After Objectivity: Expert Evidence and Procedural Reform (2003) 25 Sydney Law Review 131, by Gary Edmond, (at 158) the author said: Both judges and scientists routinely draw upon images of objectivity to describe their practices. There may, however, be differences in the way each conceptualise and use these images in particular situations. Even though the procedural reforms imply that replacing the obligation to parties with a paramount duty to the court experts will, in effect, be (more) 'objective' this does not guarantee that (groups of) scientists and judges will maintain similar interests or share understandings or the implications of objectivity in specific instances. 25 In my opinion, the court would be assisted in the determination of the plaintiff's case by knowing such matters as his potential earnings; the plaintiff's abilities (beyond the evidence already adduced of the number of goals scored in past seasons); the average age at which a professional soccer player will generally retire; and the utility of exposure of a football player by securing contracts in Europe. These matters seem undoubtedly relevant and are not matters about which the Court could take judicial notice. They are matters within the experience of people involved in the professional soccer industry, especially those occupying significant positions in that field of endeavour. Whether these opinions are controversial I do not know at this stage, but I regard the material, in general, and perhaps with some specific exceptions with some witnesses, it is admissible as expert opinion evidence. 26 The substantial argument was whether the material can or should be admitted given, what was said by the plaintiff to be an 'inadvertent' non-compliance with the Rules regarding the expert Code of Conduct. 27 It is obvious that the Rules Committee of this Court regarded the Code as an important reform designed to rectify traditional difficulties in the courts dealing with expert evidence, where in some circumstances the idea of experts as 'guns for hire' had become not only unsatisfactory but notorious. It is therefore, very important that the rules be complied with and no decision of this Court should encourage the view that compliance can be lightly disregarded. Nevertheless, there is undoubtedly some area of leeway whereby material could be admitted without disturbing the general notion that compliance should be regarded as a matter of importance. 28 The purpose and intention of Part 36 r 13 is illuminated by some background considerations. As I have said, Part 36 commenced on 1 March 2000. At the Supreme Court Annual Conference in September 1999 Sperling J delivered a paper entitled, Expert Evidence: The Problem of Bias and Other Things. His Honour there recommended the promulgation of a Code of Conduct for expert witnesses. The paper suggested that in personal injury cases, and to a lesser extent in other matters, expert witnesses were partisan and the evidence often useless. 29 In a paper delivered to the General Surgeons Scientific Meeting of September 2000 Abadee J (The Expert Witness in the New Millennium) referred to the existence of the Code and said, inter alia: …adherence to the Code will contribute to the elimination of the hired gun expert and return the expert to the traditional role of being an objective witness furnishing independent opinion for the courts benefit…the code too will serve a utilitarian purpose. It will help the expert to respond to or be relieved of attempted outside influence by those who engage him/her, and also better enable him/her to assert full independence and impartiality. The code (and new Rules) will assist in keeping experts within their true expertise, and compliance will also assist in ensuring that the courts obtain the best expert assistance. 30 Without setting out the full text of Part 36 r 13C it is reasonable to summarise its effect that as soon as practicable after engaging an expert the person should provide the expert with the Code contained in Sch K. Unless an expert witnesses report contains an acknowledgement that the expert has read the Code and agrees to be bound by it, the report, 'shall not be admitted into evidence': Part 36 r 13C(2)(b)(ii). However, it is important to note that Part 36 r 13C(2) begins with the words, 'unless the court otherwise orders'. The rule recognises a discretion to admit the evidence where compliance has not been observed. To take an absolutist position, that evidence should never be admitted where there has been a strict failure to apply the process, would render nugatory those opening words. In my view, those words plainly indicate a residual discretion, to be exercised judicially in appropriate circumstances, to allow material to be tendered -notwithstanding the overwhelming desirability of compliance and the policy underlying the new regime. 31 It has been held by this Court that a failure to comply with Pt 36 r 13C of the Rules is not a ground for rejecting so-called expert evidence though 'the court's stand on ensuring as much as it can that expert evidence is free from suspicion as possible must be backed up by the profession': Commissioner for Children and Young People v V (2003) 56 NSWLR 476 at 483 per Young CJ in Eq; see also Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 per Campbell J. 32 Thus, with respect, I would not embrace the language used by Einstein J in Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 where (at [9]) his Honour adopted an approach of 'strict compliance' with the relevant rules. It should be said that his Honour's rigorous approach to the rules seems to have been influenced by the commercial character of the case and the fact that his Honour was faced with complex commercial litigation (see [14]). I think there is force in the plaintiff's submission that the interests of justice in such complex litigation might be different from the considerations relevant to the determination of justice to an injured plaintiff at common law. Two other judges of this Court have 'otherwise ordered´ in the context of this discourse: see Barrett J in Barak Pty Ltd v WTH Pty Ltd [2002] NSWSC 649 and Levine J in Langbourne v Sate Rail Authority NSW [2003] NSWSC 537. This illustrates an area of discretion, albeit limited, given the weight that must be accorded to the policy underlying the Rules. 33 I think it is relevant that in the present case the solicitors in the present case have gone back to the potential witnesses and presented them with the Code then obtained evidence that the potential witnesses would adhere to what they had said having then had regard to the Code. Hence, it seems to me that, subject to a number of procedural qualifications, the affidavits and statements should be admissible, subject to cross examination and argument as to weight. It is also relevant that the rules contemplate that the rules provide that an expert may give oral evidence of his or her opinion subject to the leave of the court where the evidence is not covered by the expert's report. The plaintiff has applied to adduce oral evidence from each of the witnesses, but I think that is a matter that should be dealt with in the course of the trial after hearing submissions from the defendant as to whether such leave should be granted. 34 The defendant's take a number of more particular objections to aspects of the proposed evidence. The plaintiff candidly concedes some deficiencies in that material. 35 Without being exhaustive some examples include that the evidence of Mr Paschalidis does not indicate his qualifications or experience as a player, coach or football administrator. Thus, the material is deficient is showing this proposed witness' specialised knowledge in assessing soccer players. Mr Zulj is the General Manager of the Sydney United Soccer Club but there is a similar lack of detail as to his qualifications and/or experience. I do not think it necessary to go into further detail on the objections to the other material because in my opinion they can be dealt with at trial as each witness is called. In my view, the plaintiff is essentially correct in characterising these detailed objections to the statements as generally related to the form of the evidence and the weight to be attributed to it. They go to submissions as to the plaintiff's earning capacity and the effect of the Civil Liability Act 2002 (NSW) and, in particular, the effect of s 13 of that Act. 36 My view is that the plaintiff should be given leave to adduce supplementary oral evidence which may further qualify the witnesses, but, as a matter of procedural fairness, the defendants should be given adequate notice of that material. 37 The trial is scheduled to recommence on 2 February 2004. In my view, it is consistent with procedural fairness if the plaintiff were to file and serve a statement of further evidence to be adduced from the proposed witnesses on or before 15 December 2003 to give the defendants a reasonable time to consider the material. In addition, if the plaintiff desires, in the light of the specific objections taken, to recast the material as a matter of form, then any such document should likewise be filed and served on or before 15 December 2003. 38 What I have said is predicated upon the obvious proposition that it would be open to the defendants to pursue their objections to the specific aspects of this evidence, to cross examine at large on these issues and to put submissions as to the weight that should be accorded to that evidence in all the circumstances. 39 I make orders and directions in accordance with his judgment and reserve the matter of costs.

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