Plaintiff v Defendants

Plaintiff v Defendants - [2014] VSC 102 - VSC 2014 case summary — Zoe

Dr Nick Hastings, an engineer engaged by Mrs Matthews, has at the request of her solicitors prepared two reports on asset management. He has also prepared a joint report on the same subject with Mr Alexander Dunn, an engineer engaged by SPI.[1] Dr Hastings is due to give evidence next month.
SPI argues that significant portions of Dr Hastings' two reports are inadmissible on the following grounds:
- (a) in many parts of the reports, Dr Hastings has made findings of fact (rather than relying on assumptions of fact and limiting himself to giving expert opinion) and has therefore ventured outside of his role as an expert. One aspect of this is his alleged failure to distinguish between "primary" and "secondary" findings of fact;[2]
- (b) to the extent that Dr Hastings' reports contain opinion evidence, the reports contain a melange of assumptions of fact and expressions of opinion. Because Dr Hastings has failed to distinguish between assumptions of fact and opinion, it is impossible to determine where the application of expertise exists;[3]
- (c) to the extent that Dr Hastings' reports contain opinion evidence, he has failed to adequately substantiate them or adequately link them to his expertise; and
- (d) Dr Hastings should be characterised as an advocate for Mrs Matthews, giving unsubstantiated opinions and reaching findings of fact that benefit Mrs Matthews' case.
Many of these complaints (particularly that relating to "primary" and "secondary" findings) result from an exhaustive, and exhausting, over-analysis of the contents of the two reports by SPI's lawyers. Although it is necessary to consider each of SPI's complaints, I consider that the primary issue is whether Dr Hastings has sufficiently delineated his assumptions of fact from his expressions of opinion.[4]
In the result, as I explain, I have decided that Dr Hastings' reports are admissible in full. Whilst I accept that the reports are not ideally structured so that the differentiation between assumed fact and opinion requires some thought, having read the reports (and the references to many of the documents upon which Dr Hastings relies), I am satisfied that the distinction can be made. I am also satisfied that Dr Hastings' opinions are referrable to his expertise and sufficiently substantiated. To the extent that SPI is not satisfied as to the accuracy of the assumptions of fact, counsel will be able to challenge these during cross-examination.
Before continuing, I should explain why these objections have been raised now rather than at an earlier stage of the trial. Prior to the trial commencing, I asked the parties to identify any objections to the expertise of a witness. Perhaps over-optimistically, I reasoned that I would have a better understanding of the arguments once the factual evidence had been marshalled and so determined that I would deal with any objections to expert evidence shortly prior to the relevant concurrent evidence session.

[13]

Dr Hastings prepared two reports dated 27 August 2012[15] and 24 September 2012.[16]
The questions asked of Dr Hastings by Mrs Matthews' solicitors for the purpose of his first report were:
1. Describe the principal management system approaches for managing fleets of assets such as an electrical distribution network.
2. What is your opinion as to whether SPI's asset management systems, over such period as is relevant to the condition of its SWER network by February 2009, were in accordance with appropriate asset management practices over the same period?
3. If in your opinion there were aspects of SPI's systems that were not in accordance with appropriate asset management practices, please explain what, if any, consequences the departure(s) from appropriate asset management practices had, or were likely to have had, for the safety and reliability of the Valley Span by February 2009?[17]
Dr Hastings' first report is 38 pages (plus appendices). It commences with a brief outline of its structure, followed by a summary of conclusions in which Dr Hastings outlines his opinion concerning the maintenance policy of the Valley Span.[18] It then provides an introduction to the terms and techniques used (Section 3) and an overview of SPI's Valley Span and Conductor Management Policy (Section 4). What follows is a detailed consideration of various asset management topics, as follows:
- (a) SPI's asset management policies, both as applicable to the Valley Span and applicable to conductors generally (Section 4);
- (b) SPI's policies and practices for data collection and analysis (Section 5);
- (c) asset life spans (Section 6);
- (d) identification of risk of asset deterioration or failure (Section 7);
- (e) asset inspection frequency and procedures (Section 8);
- (f) in-service asset maintenance (Section 9);
- (g) repair or replacement of assets - on either a preventative or predictive basis (Section 10);
- (h) redesign or modification of assets to avoid in-service failures (Section 11);
- (i) the fitting of vibration dampers (Section 12); and
- (j) management of protection devices such as Oil Circuit Reclosers (Section 13).

[20]

In support of the proposition that Dr Hastings has made impermissible factual findings, SPI points to the letters of instruction from Maurice Blackburn to Dr Hastings, saying that Dr Hastings was not provided with assumed facts or limitations but was simply asked to answer open-ended questions. SPI says that this "supports an inference ... that [Dr Hastings] thought his task was to go off and look at the documents, work out what he thought was relevant and find his own primary and secondary facts, going through that material".[23]
Whereas SPI's written submissions relied on the contention that Dr Hastings has engaged in impermissible fact-finding, the core proposition put during oral submissions was that Dr Hastings has not adequately differentiated between assumptions of fact and expressions of opinion, with counsel describing the reports as "a morass of material".[24] Counsel for SPI said the issue is not a matter of "proof of assumption" (i.e. whether the facts ultimately bear out the assumptions that have been made) but rather an issue of "statement of assumption" (i.e. whether the assumptions relied upon are clearly articulated as such).[25]
Counsel for SPI says, I think correctly, that the distinction between assumption of fact and expression of opinion needs to be made clear so that counsel knows what case SPI needs to meet in preparing for cross-examination of Dr Hastings.
SPI also argued during oral submissions that Dr Hastings has failed to properly substantiate his opinions, therefore failing to satisfy the requirement articulated in Dasreef that opinions expressed must be wholly or substantially based on expert knowledge.[26]
Finally SPI says that, in setting out these factual findings, Dr Hastings has effectively been used to "filter the facts" in a manner that is favourable to Mrs Matthews' case and is simply acting as an advocate for Mrs Matthews' position.[27]
SPI did not clearly identify the relief it sought in its written submissions. In discussion with counsel for SPI, two possible courses were suggested:
- (a) that I strike out those passages of the reports that I hold to be inadmissible. This, I suggested, would result in my asking Dr Hastings to redraft his report; or alternatively,
- (b) that I make a declaration as to those matters that I consider to be assumptions of fact (and presumably any that I consider to be findings of fact) and those that are opinion. This, it was argued, would enable counsel for SPI to prepare for and conduct cross-examination effectively.[28]

[23]

As Dasreef makes clear, there are three critical matters that must be established if a party is to rely upon an expert opinion:
- (a) the witness must have specialised knowledge resulting from training, study or experience;
- (b) the opinion expressed must be wholly or substantially based on that knowledge; and
- (c) the opinion must be relevant to the trial issues.
Although it is clear from Dasreef that the determinants of admissibility are the terms of the Evidence Act and not a set of rules gleaned from a raft of earlier cases, it is also apparent (as the extract at [9] demonstrates) that, at least as a matter of procedure, an expert report must set out the factual assumptions that are relied upon by the expert in reaching his or her opinion.
The High Court also explained in Dasreef that the exercise should not, in most cases, be difficult; a microscopic examination of every sentence in a report is unnecessary and unproductive. Rather the question is, as I will explain in a moment, whether the report (or the viva voce evidence) sufficiently identifies the assumed facts and differentiates these from opinion so that the reader can determine how the witness' opinion results from an application of his or her experience. The court and the parties should be able to understand not only the factual basis for the opinion but also the manner in which the expert's expertise has been applied to those assumed facts.
With this in mind, I address the four grounds of objection. Before doing so, however, I should comment on SPI's submissions.
I repeat that, in its written submissions, SPI has undertaken an excruciatingly detailed analysis of Dr Hastings' reports and identified a large number of passages that it says should not be admitted. Ultimately, I think this analysis is distracting and unhelpful. For a court to undertake the same task, and then to undertake the correlative task of determining whether those statements can be unbound, is unthinkable - at this stage of a trial of this size or, indeed, in any trial. Rather, the exercise that I suggest would apply in most cases is this: examine the report as a whole and determine whether the reader can sensibly distinguish between assumed facts and the expression of opinion based on the witness' expertise.

[31]

This leads to consideration of the more general proposition put by SPI: that Dr Hastings has engaged in an impermissible fact-finding exercise.
Mrs Matthews' lawyers provided Dr Hastings with a series of questions; these required him to describe SPI's asset management practices and then to give his opinion as to whether these were appropriate. In other words, Dr Hastings was not provided with a prepared statement of assumptions but was required to derive this information himself from the documents provided.
In my opinion it is clear, from a sensible reading of the two reports, that Dr Hastings has referred to and relied upon the materials provided in order to identify (insofar as is possible when relying on a selection of documents) the nature of SPI's asset management policies and practices. This was a necessary precursor to then offering his opinion as to the appropriateness of these practices. Dr Hastings' descriptions of SPI's policies and practices emanate almost exclusively from the documents and are clearly referenced in his discussion of them. It matters not, for current purposes, whether those assumptions are accurate or reflective of the evidence given in this trial; if they are not, this will, at least, go to the weight of Dr Hastings' opinions.
I simply do not understand the criticism by SPI of the process adopted by Dr Hastings in producing his reports. Surely it is in the interests of justice to permit an expert to examine the materials provided free from the potentially biased or preconceived view of the facts that a party's lawyer may have when providing "assumptions of fact". Even if not so skewed, the assumed facts may be incomplete or inadequately set out due to a lack of expert knowledge on the part of the lawyer.
Accordingly I reject the proposition that these aspects of the reports constitute "findings of fact". Similarly, I see no reason to infer that Dr Hastings was confused about the nature and scope of his role and mistakenly undertook the role of fact-finder.

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Legislation Cited (16)

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