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[2011] NSWSC 330
Supreme Court of NSW
2011-04-15
McCallum J
Original judgment source is linked above.
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.
Materials to be placed before the experts 23The first objection by the second to eighth defendants relates to the materials to be placed before the experts. The plaintiff seeks to include seven resource documents which are not referred to in any of the experts' reports. Mr Joseph stated that those documents were presented "on the assumption that they will be tendered before the court, and the experts should have considered them". The basis for the foreshadowed tender was not articulated. Whether or not the documents are liable to be admitted into evidence in due course, I do not think that is sufficient warrant for their inclusion in the body of material the experts are required to read and consider in advance of the joint conference. It can only serve to increase the scope of their task, when no good reason has been identified for doing so. The material provided to the experts should be confined to what is reasonably necessary to enable them to consider questions properly posed for their discussion.
The questions to be answered 24The next objection relates to questions 1 to 4 in the plaintiff's document, which focus on the relative safety of a stairway with a quarter or half landing (not used in the present case) and a stairway with winders (used in the present case). The vice of those questions is said to be that they require a comparison, without reference to any standard or criteria, of whether one type of staircase is "safer" than another. The defendants submitted, "that invites an idiosyncratic response not limited to a consideration of whether the staircase as installed was outside accepted industry standards/practice in 2005. In the absence of any correlation with or to accepted industry practices/standards, and given that all stairs are "inherently dangerous", such an enquiry is meaningless in terms of the legal standards applicable in this case". 25Mr Joseph submitted that the experts' opinions as to the choice of staircase would assist the court. He rejected the notion that the plaintiff's case should be limited to the issue of compliance of the staircase with the Building Code of Australia or "accepted industry practice", noting that conduct may be lawful or in accordance with industry standards and yet not meet the standard of reasonable care. He submitted that the questions as to the comparative assessment of the different staircases were relevant to assessing other issues relating to breach of duty and causation. He submitted, further, that those issues fall to be considered in accordance with the guidance provided, in particular, by sections 5B and 5C of the Civil Liability Act 2002 and are not confined to accepted industry practice. 26I accept that the questions entail some vice in adopting indeterminate points of reference. In my view, however, although the questions are not articulated in the terms of any identified legal test to be applied by the court, the experts' answers to those questions are at least capable of assisting the court to some extent in the resolution of the issues in dispute. 27A separate objection was taken to question 2(d) on the grounds that it calls for an opinion as to the position of "a reasonably competent owner". I accept, as submitted on behalf of the defendants, that the expert builder and architect witnesses should not be called upon to provide an opinion on that issue since it does not call for any application of their expertise. I do not see any point in reserving that question for the trial judge, as urged by Mr Joseph. With the omission of question 2(d), questions 1 to 4 should be included in the joint statement. 28The next group of objections relates to a series of questions that rest on the concept of "risk of injury" (questions 7, 8, 9, 10, 11, 12, 35, 36, 37, 39, 40 and 59). The defendants submitted that those are meaningless enquiries "unless correlated to some accepted industry practices or standards as a point of reference". The defendants noted that al l staircases involve a "risk of injury" which is self-evident. The defendants also objected to q uestions 30, 31 and 45, which are directed to increased or diminished risk. Those questions were not previously objected to and in my view should be included in the joint statement. 29Questions 7, 9 and 11 are in a category of their own, being directed to the availability of publications in which certain risks of injury are described. Mr Joseph submitted that the availability of publications is a matter of expert opinion going to the issue of reasonable foreseeability. The defendants did not take issue with that proposition but noted that the issue of the availability of such material is not referred to in any of the expert reports and that the question is in the nature of cross-examination. 30I do not think that is a ground for objection in itself. Indeed, the early identification of proper areas for cross-examination, having the potential to produce agreement and to obviate the vices of an adversarial approach, is entirely consistent with the objects of the joint expert conference process. Questions 7, 9 and 11 should be included in the joint statement. 31Questions 8, 10 and 12 ask the experts whether it is accepted (presumably by the experts) that the risks identified in each preceding question were real. Mr Joseph said that those questions were directed to the assessment of the risk. Separately, he submitted that the questions proceed on the assumption that the risks exist (the question apparently being, assuming the risks exist, whether they are real). I do not think questions in those terms are helpful. Questions 8, 10 and 12 should be omitted from the joint statement. 32Questions 35, 36 and 37 ask "what construction features would reduce a risk of injury" to persons using a staircase with identified features. I do not accept that such inquiries are meaningless unless correlated to an objective industry practice as a point of reference, as contended on behalf of the second to eighth defendants. Ultimately the trial judge will have to make that judgment, and it may not be an easy one to make on the strength of such evidence, but it does not follow that the opinions of the expert as to measures available to reduce risk would not be of any assistance to the court. A comparator is identified (the features of the stairs identified in each question). Questions 35, 36 and 37 should be included in the joint statement. 33The defendants submitted that questions 38 and 39 should be rejected, posing an alternative form of question. I see no difficulty with the plaintiff's question 38 in its present form. That question should be included in the joint statement. 34The plaintiff's question 39 is: Did the subject handrail at the point where the winders are located provide diminished hand support to a person descending the stairs (especially given it is vertical)? 35The alternative form proposed by the second to eighth defendants is: Did the handrail and newel post provide adequate hand support for a person descending the stairs? 36The vice of the plaintiff's formulation is the use of the comparative term "diminished hand support", which in that context is without meaningful content. The defendants' version is preferable and should be included in the joint statement in lieu of the plaintiff's. A similar difficulty arises in respect of question 40, which asks whether the interruption to the continuous hand railing presents "an increased risk of injury". Without clear identification as to the circumstance with which it is being compared, the answer could not assist the court. Q uestion 40 should be omitted from the joint statement. 37The final objection in this group was to question 59. That question is directed to whether some form of delineation of the leading edge of the stairs would have reduced the risk of injury. In that context, it is clear that the comparison is with stairs without such delineation. I would not have excluded that question on that ground alone. Separately, the defendants complain that the question is irrelevant since no expert says that the stairs were inadequately delineated. Whilst that suggests that this is a non-issue, I would not feel confident in excluding this question with the limited appreciation I presently have of the issues that may arise. However, a separate objection to question 59 was also included on a different basis (the last group of objections considered below). Accordingly, it will be necessary to return to that question. 38The next group of objections relates to the plaintiff's questions 13 , 14 and 15, which the defendants submit go to a false issue. Those questions are: 13. Was the subject staircase drawn by the designer unsuitable for construction because of insufficient risers and/or a lack of access to the office at mezzanine level? 14. If the answer to the preceding question was yes, should this have been apparent to the builder during construction. 15. If the answer to question 13 is yes, should the builder have sought further clarification about the stairway from the designer? 39The defendants contended that it is common ground that, as constructed, the staircase has sufficient risers and that any lack of access to the office at mezzanine level, even if established, is causally irrelevant. The plaintiff identified a series of issues to which those questions may relate. It is simply not possible to analyse those competing contentions in the context of an application of the present kind. For the reasons discussed above, it is appropriate to accommodate the questions reflecting the broader view of the issues. Questions 13 to 15 should be included in the joint statement. 40The next group of objections is to the plaintiff's questions 16, 17, 18, 19, 20, 34 and 52. Question 52 was not previously objected to except as to part (d), which was directed to the conduct of a reasonable owner. Question 52(d) should be omitted for the reasons identified above in respect of question 2(d). Otherwise, question 52 should be included in the joint statement. 41As to the balance, the defendants submitted that those questions: call for idiosyncratic opinions about what is "reasonable" or what "should" be done, not limited by reference to any industry or legal standard, or to the application of any building/architectural expertise, as distinct from whether something is simply "the right thing to do" in some 'Good Samaritan' sense". The questions are framed in a way which invites idiosyncratic 'opinions', not dependant upon the expert's field of specialised knowledge, which may be invested with a spurious appearance of authority. These are clear examples where the Court should not allow its time to be wasted by permitting such questions to be put to experts and then sorting out the results of such enquiries through unnecessary cross examination and submission. 42There is a deal of force in that complaint. The questions are poorly framed and are not well directed to the issues that call for the expertise of the experts within the group proposed for the joint conference. They reflect a triumph of enthusiasm over disciplined analysis and in my view should be excluded from the joint statement. 43The next objection is to questions 26, 27, 28 and 33. The second to eighth defendants submit that those questions invite opinions about foreseeability which do not require any application of the specialised knowledge of the experts within the group proposed for the joint conference, but instead call for an assessment of normal human behaviour. In the context of these questions, the defendants reiterated the submission that it is legally foreseeable (that is, not far-fetched or fanciful) that a person can fall anywhere, at any time, on any surface. 44In my view, there is force in those submissions. The foreseeability of the risks in question is not a matter as to which the court requires the assistance of any expert. Those questions should be excluded from the joint statement. 45The final group of objections by the second to eighth defendants relates to questions said to require the consideration of factors outside the field of expertise of builders or architects (questions 46, 47, 48, 49, 50, 51, 53, 54, 55, 57 and 59). Question 50 is in a different form from the others objected to under this ground and was previously agreed to. That question should be included in the joint statement. 46As to questions 53 to 55, the second to eighth defendants appeared to be joining in a submission put on behalf of the first defendant, who contended that questions as to lighting and its effect are outside the expertise of the present group (implicitly, in putting that submissions, the second to eighth defendants appeared to have abandoned two of the questions proposed in their competing document, considered below). In my view, the questions relating to lighting are outside the scope of the relevant expertise of the proposed joint conference. Questions 53 to 55 should be excluded from the joint statement. Question 56 falls with those questions. 47As to all of the questions in this group, the second to eighth defendants submitted further that the questions call for consideration of the particular characteristics of the first defendant, Mrs Hannelore, in terms of "risk" and, in any event, call for the application of expertise in human movement and mechanics of falling. 48In my view, there is force in those complaints. The questions in effect ask the experts to express opinions as to past facts concerning how Mrs Hannelore fell. Mr Joseph submitted that the questions are permissible and the objection is a matter going to weight. In my view, however, the questions fall at the hurdle of simply being outside the realm in which the court may properly be assisted by the specialised training, education and experience of builders and architects. Questions 46, 47, 48, 49, 51, 57 and 59 should be omitted from the joint statement. Questions 58 and 60 fall with questions 57 and 59. 49Questions 23 to 25 were not pressed by the plaintiffs. All other questions propounded by the plaintiff were the subject of agreement between the parties. 50It follows that the joint statement should include the following questions from the plaintiff's version: 1, 2 (except 2(d)), 3, 4, 5, 6, 7, 9, 11, 13 to 15, 21, 22, 29, 30, 31, 32, 35 to 38, the defendants' version of 39, 41 to 44 (with amendments as agreed), 45, 50 and 52 (except 52(d)).
Form of questions propounded by the second to eighth defendants 51The plaintiff did not object to the inclusion of the questions proposed by the second to eighth defendants. The first defendant objected to question 16 as propounded by the second to eighth defendants, which asks, on an identified assumption whether it was reasonable for winders to be incorporated in the staircase as constructed. The basis for the objection was that the question of reasonableness of that conduct is the ultimate question for the court's determination and not a proper matter for determination by the experts. In my view, that objection should be upheld, notwithstanding the abolition of the ultimate issue rule. The question calls for a broad conclusion in respect of which a "yes" or "no" answer would not, in my view, be of any assistance to the court. Question 16 should be omitted from the joint statement. 52Question 20 posed by the second to eighth defendants prompted a similar objection by the first defendant. The question asks whether the treads provide "a reasonable non-slip surface". I agree with the submission of the first defendant that the word "reasonable" should be replaced with the word "appropriate". 53Finally, the first defendant objected to two further questions initially suggested by the second to eighth defendants going to the question of lighting (as already noted, it was implicit in their final position that the second to eighth defendants abandoned those questions). Questions 27 and 28 in the second to eighth defendants' draft should be omitted from the joint statement for the reasons identified above in respect of the plaintiff's questions 53 to 55.
Joint statement of assumptions 54The parties provided differing versions of the inaptly named "joint statement of assumptions" for the experts. That is not a dispute which the court should have to resolve. If agreement truly cannot be reached, the proper approach is to identify alternative assumptions within the body of a single document. In the meantime, I direct the parties to use their best endeavours to reach a joint statement.
The experts to attend 55It was submitted on behalf of the second to eighth defendants that the plaintiff's expert, Mr Bailey, should participate in the joint conference. The directions I made on 14 March 2011 did not include him as one of the experts who should attend the joint conference. Mr Bailey is not a builder or an architect. His expertise is in the relatively new field of ergonomics. Nonetheless, it was submitted that, since he had purported to express an opinion as to the application of the BCA, he should be included in the group so as to have an opportunity to defend his opinions on such matters. 56I think it would be preferable to confine participation in the joint conference (and in due course the concurrent evidence of the experts) to a group having like expertise. On that basis, I am not inclined to add Mr Bailey to the group. However, I will give the plaintiff an opportunity to consider that issue further in light of the rulings I have given in this judgment and having regard to the provisions of rule 31.26, the impact of which was not specifically addressed in the context of this issue. 57I direct the parties to prepare a joint statement of questions and assumptions for the experts in accordance with these reasons for provision as soon as reasonably practicable to the experts identified in my directions made on 14 March 2011.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2011
Molly Erica Hoffmann Boland (by her tutor Jason Mark Boland)
Hannelore Hoffmann & Ors
(1999) 197 CLR 414
(2007) 234 CLR 330