Pieter Hoekstra v Residual Assco Industries Pty Ltd & 2 Ors

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

20127/03 PIETER HOEKSTRA v RESIDUAL ASSCO INDUSTRIES PTY LIMITED (FORMERLY KNOWN AS ADELAIDE STEAMSHIP INDUSTRIES PTY LIMITED)

JUDGMENT - (Re admissibility of expert's evidence and opinions) 1 HIS HONOUR: The Plaintiff has indicated that he wishes to call Mr Stuart G Lye, a marine engineer as an expert witness, and with that in mind, has served and seeks to tender a report from Mr Lye dated 21 May 2002.

2 Objection has been taken to the report on a number of grounds; firstly, that the facts upon which the opinion is based have not been set out in the report, secondly, that the opinions expressed are not expert opinions, and thirdly, that the report does not disclose the reasoning process showing how the opinions expressed are based on the proposed witness' expert knowledge and experience. It is not disputed that Mr Lye is qualified as a marine engineer and competent to express expert opinions on matters within such expertise. 3 Mr Lye says in his report at para 27 that he was furnished with a number of documents, which he described as the Ordinary Statement of Claim, the Report of Arrow Insurance Adjusting and a letter from the Oakes Medical Centre. In paras 28-39 he sets out what he describes as the circumstances of the accident, and in paras 32-39 he sets out a number of details of the subject vessel apparently ascertained by himself when he inspected it on 1 May 2002. This is supplemented by a sketch plan at the end of the report. Finally, in paras 85-104 he sets out additional facts upon which he purports to base his opinions. 4 Whilst it is necessary for the facts or assumptions on which the opinion is based to be set out in the report or the evidence, they do not have to all be set out in a compendious form in one place nor be itemised in any artificial way: Ramsby v Watson (1961) 108 CLR 642.

5 The only problem I see in this regard is the statement that he was provided with, the report of Arrow Insurance Adjusting. I was informed from the Bar Table that this consisted of a paraphrase of the statement made by the Plaintiff to the loss adjustors, a copy of which is now Exhibit H in the trial, and a bundle of documents. Whether he received the actual statement as well or only the paraphrase and, if so, how accurate the paraphrase was, may be a matter of some dispute, and there is no identification of what was comprised in the bundle of documents. These matters could probably be cured by evidence.

6 However, it is in relation to the other two requirements; namely, that the expert opinion must be set out and that the reasoning showing how that expert opinion is based upon the witness' knowledge and experience must be exposed, that gives rise to the difficulties in this case.

7 In Makita (Australia) Pty Limited v Sprowles (2001) NSWCA 305, 52 NSWLR 705, special leave refused 209 CLR 693n, Heydon JA set out the requirements of expert evidence in some detail commencing at para [59] and summarised at para [85], and said that if those requirements are not met, the evidence is not strictly admissible, and, so far as it is admissible, it is of diminished weight.

8 I recently summarised what his Honour said in Rigby v Shellharbour City Council & anor [2003] NSWSC 877 at [15] where I said: "His Honour summarised the relevant principles at para [85] saying in effect that for expert opinion evidence to be admissible it must satisfy the following conditions: (1) it must be agreed or demonstrated that there is a field of specialised knowledge, (2) there must be an identified aspect of that field in which the witness has by specialised training, study or experience become an expert, (3) the opinion must be wholly or substantially based on the witness' expert knowledge, (4) so far as the opinion is based on facts "observed" by the expert, it must be identified and admissibly proved by the expert, (5) so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way, (6) it must be established that the facts on which the opinion is based form a proper foundation for it; that is to say, the opinion of the expert requires demonstration of the scientific or otherwise intellectual basis of the conclusions reached." I went on at [16]: "To put this last point another way, the expert's opinion 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."

9 In the present case, Mr Lye has set out in lettered paragraphs commencing at para 42 the particulars of negligence alleged in the Ordinary Statement of Claim and commented on each of them.

10 I first observe that in my opinion, the purported particulars in sub-paragraph 6 (a), (b) and (c) are not particulars at all, but generalised allegations of negligence. The particulars in paragraphs (d), (e), (f), (g), (h) and (i) are what might be called general particulars relating to any case of negligence for personal injuries brought by an employee against an employer. Only the material set out in sub-paragraphs (j), (k) and (l) can fairly be described as particulars relating to this particular case.

11 Similar considerations apply to the so-called particulars in paragraph 7. I realise that particulars such as those in paragraphs (a) to (i) have regularly been included in statements of claims for over 40 years, to my own certain knowledge, but that does not, in my view, make them "particulars" of the negligence alleged in this particular case.

12 In any event, turning to the report, the opinions expressed are not, in my opinion, the opinions of an expert marine engineer based on his knowledge, training or experience as such. In some cases, they are no more than opinions based on commonsense or the common experience of the community, which does not require any expertise, for example, to say that leaving a steel plate forming part of the floor of a workshop removed is liable to cause danger to whoever came upon the place where the plate is missing without prior notice or warning thereof, is merely commonsense. It is not an opinion that requires expert knowledge, training or experience.

13 Moreover the opinions, particularly those relating to the more general allegations, are simply the expression of opinions on matters which I, as the tribunal of fact, will ultimately have to decide. To that extent they are totally unhelpful and cannot advance the Plaintiff's case at all.

14 It is true that s 80 of the Evidence Act 1995 provides that evidence of an opinion is not inadmissible only because it is a fact in issue or an ultimate issue or a matter of common knowledge. But that provision does not mean that I should be persuaded, or even take into account an opinion on, whether conduct or circumstances proved aliunde amounts to negligence or not.

15 The contents of para 47 might be said to express an opinion in proper work practices in a docking situation, and may, although this is by no means apparent, be based on Mr Lye's experiences as a marine engineer in other maintenance docking operations, but he does not say so, and the Defendants should not be required to guess in advance of the trial whether that is so or not.

16 Moreover he fails to expose his reasoning. He fails in the sense that he fails to relate what he says there with any experience that he has had or any knowledge that he has, and does not give any reason why air hoses, welding leads and oxyacetylene hoses should be removed from the deck's access at completion of the day's work. He does not, for example, say that access to the lower decks will be unimpeded or whether it is to guard against electrical faults or the ignition of flammable materials by reason of the oxyacetylene leaking or whatever.

17 In relation to each of the opinions expressed, similar objections arise. In some cases he refers to the contract documents and the provisions contained therein, but I am in just a good a position to construe the obligations arising out of the contract documents as the marine engineer, unless it be shown there are technical terms used in such documents which require expert exposition; and from what I have seen of those referred to, that consideration does not apply.

18 Mr Gross, senior counsel for the Plaintiff submits that, having regard to the provision of s 80, I should nevertheless admit the report, but I decline to do so as it would not be of any assistance and I consider that within the terms of s 135, its admission might be misleading or confusing and it would invite the defendants to respond to it, which could result in an undue waste of time.

19 He also submitted that Makita proscribes a standard of perfection and is contained in that part of Heydon JA's judgment which was not adopted by the other members of the Court, but, his comments in relation to expert witnesses are based on the long line of previous authority cited by his Honour, and they have been applied a number of times since, although some judges have expressed reservations.

20 In particular it has been said that long detailed reasons for every opinion expressed are not required in industrial accident cases or in cases where doctors opinions are given, but in many such cases the reasoning is implicit; the doctors, having set out the history and having made a clinical examination as described in their report, express an opinion, and it is implicit that their opinions are based on the history, their clinical examination and their experience and knowledge in the particular field.

21 Similar considerations apply to industrial accident cases where an expert engineer or otherwise expresses an opinion on alternative methods of carrying out the tasks involved and it can usually be related to other parts of their report which explains their opinion as to the defects in the system being used at the time of the Plaintiff's accident. None of these considerations apply here. 22 For these reasons, I will not admit the report or permit Mr Lye to give evidence in accordance with it, subject to this exception that paras 32-39 appear to be a matter of observation and measurement by Mr Lye together with the accompanying sketch plan of the relevant parts of the vessel. This evidence is admissible as a matter of observation. **********

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