Molly Erica Hoffmann Boland (by her tutor Jason Mark Boland) v Hannelore Hoffmann & Ors

Judgment 1The plaintiff in these proceedings is an infant who sustained a traumatic brain injury as a baby when her grandmother stumbled and fell whilst carrying her down a set of stairs. 2The grandmother is the first defendant to the proceedings. The stairs were part of an internal staircase in a house owned by another member of the family (the eighth defendant). The second defendant is a builder who was retained by the eighth defendant to carry out extensions to the house in question (including the construction of the relevant staircase). The third to sixth defendants are timber joiners allegedly retained by the second defendant to design and construct the staircase. The seventh defendant is an architectural designer who provided an earlier architectural design for an internal staircase for the house. The circumstances in which he was joined as a defendant are explained in my earlier judgment: Hoffman v Boland [2010] NSWSC 296. 3The proceedings raise a number of issues as to the design and construction of the stairs. Each of the parties except for the eighth defendant has qualified an expert with expertise in either building or architecture to give opinion evidence on those issues. On 14 March 2011, I made a series of directions pursuant to rule 31.24 of the Uniform Civil Procedure Rules requiring those experts to confer in relation to matters to be specified in a joint list of assumptions and questions. The orders contemplated that the parties would reach agreement as to the content of such a document. Regrettably, that has not occurred. This judgment determines the disputes between the parties as to those matters. As the joint meeting of experts is presently scheduled for 28 April 2011 and the hearing is listed to commence on 2 May 2011, it was necessary to hear the argument at short notice so as to provide the parties with a prompt ruling. 4Before turning to the detail of the matters in dispute, it is appropriate to bring to mind the principles that govern joint conferences of expert witnesses. Expert evidence is governed by division 2 of part 31 of the UCPR. The main purposes of those rules are expressly stated within the rules themselves, in rule 31.17. Importantly for present purposes, those purposes include restricting expert evidence to that which is reasonably required to resolve the proceedings and avoiding unnecessary costs. 5The court has power under the rules to direct expert witnesses to confer, "either generally or in relation to specified matters": rule 31.24. Directions may be made under that rule requiring the experts to endeavour to reach agreement on any matters in issue and to prepare a joint report as to matters agreed and matters not agreed. Those provisions reflect the experience of this court that private conference among experts is generally more conducive to the proper resolution of difference of opinion than are adversarial processes in open court. 6To the extent that the experts reach agreement in conference, their joint report may be tendered as evidence of the matters agreed. In relation to matters not agreed, however, the report has no different status from any other material and may only be used in accordance with the rules of evidence: rule 31.26. That rule further provides that a party may not adduce evidence from any other expert witness on the issues dealt with in the joint report. 7Where directions are made for a joint conference of experts, the process of preparing for the conference is governed by Practice Note SC Gen 11. As with division 2 of part 31 of the UCPR, the practice note contains its own express statement of the objectives of such directions. In publishing the practice note, the Chief Justice evidently contemplated that even where agreement is not reached, the joint conference process will have considerable utility. The objectives of the process (set out in clause 5 of the practice note) include the identification and narrowing of issues, identifying and limiting the issues on which contested expert evidence will be called, apprising the court of the issues for determination and binding experts to their position on issues. It is specifically noted in the statement of objects that the joint report may be used to cross-examine an expert who seeks to depart from what was agreed. 8Clause 6 of the practice note states that the parties should agree on the experts to attend, the questions to be answered and the materials to be placed before the experts. In the present case, there is disagreement as to each of those matters. 9It was submitted on behalf of the builder (the second defendant) that the issues determinative of his liability (and that of the timber joiners, the third to eighth defendants) are: (a)whether the staircase as installed was outside accepted industry standards or practice in 2005, including by reference to the Building Code of Australia; and (b)if so, whether there was any reasonably practicable alternative measure which could have been taken by the defendant(s) other than the staircase as installed. 10On that premise, the second defendant submitted that, in place of the 60 questions formulated on behalf of the plaintiff, the only questions that the experts should be addressing were the two questions set out above. It was noted that those questions do not involve consideration of the distinct questions whether the staircase could have been designed, constructed or installed differently within accepted industry standards or practice; or whether any individual builder or architect would have chosen to design, construct or install a different staircase within accepted industry standards or practice. 11In an attempt to achieve a consensus position, however, the second to eighth defendants collaborated in producing a combined alternative set of questions which accommodated some of the issues sought to be raised by the plaintiff in a form that removed some of the verbiage objected to by the defendants. Regrettably, consensus was not achieved, each group resorting to a defence of its version in written submissions provided to the court. 12The second to eighth defendants submitted that the determination of the disputes that remained should be informed by the following propositions derived from recent authorities (quoting from the written submissions provided by Mr Sexton on behalf of the second defendant): (a) All stairs are inherently, but obviously, dangerous. Many measures might be implemented to make stairs as safe as human skill could possibly make them but the duty in relation to stairs, like any other aspect of the physical state and condition of premises, is only to take such care as is reasonable in the circumstances: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32]; Hilas v Todbern Pty Limited [2007] NSWCA 315 at [10]; Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at [11 ]; (b) Any person using stairs may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety: Stannus v Graham (1994) Aust Torts Rpts 82-293 at 61,566 col a.2 Wilkinson at [32]; (c) The response required to satisfy any duty to take reasonable care does not become more onerous if it is known or ought to be known that what is reasonably required may not be sufficient to prevent all foreseeable occurrences which may cause injury. That is because the duty is to exercise reasonable care, not "to prevent potential harm": Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [18], [43], [51] to [56]. 13Mr Joseph, who appeared for the plaintiff, submitted that the approach contended for on behalf of the defendants was unduly confined. He submitted that the court should be cautious in rejecting questions sought to be put to the experts at this stage. The proper approach, he submitted, was to allow the experts to consider the questions proposed and to leave it to the trial judge to determine whether they should be "admitted" or not. 14That submission must of course be assessed in the context of the provisions as to admission of the joint report to which I have already referred. As already noted, rule 31.26 provides that the joint report may be tendered as evidence of the matters agreed. It is otherwise subject to the rules of evidence (indeed, even as to matters agreed, a joint report is presumably not immune from the overriding rule that evidence that is not relevant is not admissible). 15As I read the relevant requirements, it does not appear to be contemplated that the joint report will become evidence concerning any of the matters not agreed, except for limited purposes. As already noted, the practice note evidently contemplates that an expert should be bound to a position recorded in a joint report at pain of being cross-examined as to his prior inconsistency if his evidence in the proceedings is otherwise. Separately, rule 31.26 precludes a party from adducing evidence from any other expert witness on the issues dealt with in the joint report, as to which the joint report would stand as proof for that limited purpose. 16However, there is no automatic entitlement to tender the joint report to prove any opinion other than those as to which the experts have agreed. In that circumstance, it might be thought that, where the parties have a different perception as to the breadth of the issues in the proceedings, the objectives of the joint conference discussed above will be better achieved if the position of the party that perceives the issues more broadly is accommodated, with the corollary that he will have to bear the evidentiary consequences. If the experts agree, their agreement will be admitted (presumably subject to relevance). If not, the parties will be confined to the content of their reports served, with the added constraints that their experts will be bound by any further concession made during the joint conference and that a party may not adduce evidence from any other expert witness on the issues dealt with in the joint report . 17In those circumstances, the defendants' apprehensions as to the consequences of inclusion of questions for the experts in terms said to be broader than or inconsistent with accepted legal principle are, in my view, misplaced. 18Conversely, there is force in some of the concerns expressed on behalf of the second to eighth defendants as to the vice of permitting too broad an approach. The second defendant placed reliance on the remarks of Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at [44]: Experts who venture 'opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge, may invest those opinions with a spurious appearance of authority, and legitimate processes of fact finding may be subverted. 19Mr Sexton submitted that the 'spurious appearance of authority' applies equally to opinions proffered by experts on matters which, although falling within their area of experience or qualification, do not call for any application of their expertise. He submitted that the Court should be astute to control the process of joint expert evidence by restricting the matters considered by the experts to those which are capable of informing the legal standards by which the matter is to be determined. Plainly, there is force in that contention. 20In their initial submissions in response to the plaintiff's proposed joint questions, the second to eighth defendants stated that they had no objection to the following questions in the plaintiff's document: questions numbered 5, 6, 21, 22, 29 to 32, 41 to 45, 50, 52(a), (b) and (c) and 53. Frustratingly, an outline of submissions provided after the matter was listed for a hearing to determine the disputes first identified embraced a stricter approach, apparently extending the objection to questions 30 to 32, 45, 50, the whole of 52 and 53 (although question 32 does not in fact appear to have been addressed in the submissions). It was not my intention in listing the matter for hearing at short notice to unravel such little agreement as had been achieved. Except as indicated in these reasons (as in the case where a new objection plainly stands or falls with an existing objection) I consider it appropriate in the circumstances to hold the second to eighth defendants to their position first stated. 21I should note the separate position of one party. Mr Campbell, who appeared for the first defendant, sat quietly at the bar table, rising only to indicate his general agreement with the questions posed by the plaintiff, subject to one well-founded exception to which I shall return. In addition, Mr Campbell proposed two additional questions to which no party had any objection. Those questions should be included in the joint questions. 22I turn to consider the defendants' objections against the foregoing considerations. For ease of reference, the plaintiff's questions will be attached as a schedule to this judgment.