Plaintiff v Defendants

Supreme Court of Victoria|2014-03-11|Before: J FORREST J

EVIDENCE - Recall of second defendant's witness for cross-examination by plaintiff - Expert evidence - Admissibility - Limitations to cross-examination - Restriction on leading questions - Expertise - Evidence Act 2008 (Vic) ss 42, 79 - Civil Procedure Act 2010 (Vic) s 65H - Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 44.

Dr David Havard, an expert engineer engaged by UAM, produced a report which addressed the question of the cause of the failure of the Valley Span on Black Saturday. He then gave evidence in a concurrent evidence session relevant to that issue in November/December 2013. Counsel for Mrs Matthews now seeks to cross-examine Dr Havard on issues relating to breach. SPI's written submissions originally opposed any cross-examination, but in oral argument, senior counsel for SPI confined his submissions to the imposition of conditions on the questioning of Dr Havard by Mrs Matthews' counsel.
I have decided that counsel for Mrs Matthews should be permitted to cross-examine Dr Havard. At the present time, this should not be subject to any limitations. My reasons follow.

An outline of Dr Havard's expertise is set out in his written report. Extracted in part, it states that Dr Havard:

... has over 50 years experience solving the mechanical and civil engineering problems of power delivery systems. His work involves analysis of problems and finding solutions, particularly those problems involving vibration, wear and fatigue. These problems have occurred on station structures, underground cables, overhead distribution and transmission conductors, hardware, and towers. ...

Since establishing his own company, Dr. Havard continues to provide engineering services to utilities on control of vibration and galloping, and testing and analysis of components of transmission systems, as well as providing training of staff in these topics. Dave has been conducting open and in-house training courses for utility staff for over ten years. These courses have focussed mainly on degradation and upgrading of transmission lines. He is a long time active member of IEEE, CEA and CIGRÉ, where he has served as Convenor of CIGRÉ Study B2, "Overhead Lines", Working Group 11 "Mechanical Behaviour of Conductor and Fittings". Dr. Havard has authored over 200 published papers and reports including contributions to a number of Standards and reference books related to vibration in overhead lines for the electric power industry. ...[1]

Further details are contained in Dr Havard's CV, attached to his written report. In addition he provided further details of his experience at the commencement of the concurrent evidence session.[2]

Dr Havard was u instructions from UAM to opine as to the following matters:
- (a) How or in what way did the Valley Span conductor fail? Please describe the mechanism and cause of failure.
- (b) What caused the Valley Span conductor to fail? Please identify all relevant factors.
- (c) To the extent not covered in (a)-(c) [sic] above, in your view, was the misalignment of the helical termination fitted to the Valley Span conductor at pole 39 causative of the conductor failure? If not, why not? If so how and to what extent did it contribute to the failure? If you are unable to express a definitive view on the first question in this sub-paragraph, please answer it in terms of its relative likeliness of being causative (e.g. highly likely, likely, unlikely, highly unlikely, etc.) giving your reasons.
- (d) When, in your view, did the misalignment of the helical termination occur? In particular, is it likely to have been introduced either as a construction defect or a defect introduced with the resagging of the line during maintenance? Or could it have occurred as a result of galloping or other serious vibration induced by weather conditions and/or other conditions/circumstances? In giving your opinion on this question, please take into account and comment upon the markings which appear on the thimble and express a view on whether they indicate that the conductor could have been in different locations on the thimble on different occasions.[3]

In the course of the trial, more than twenty experts have been engaged by Mrs Matthews, SPI and UAM to give opinion evidence on various matters which go to questions of breach and causation. Where appropriate, the experts have been organised into subject-specific conclaves. In some cases they have prepared joint reports and will give or have given evidence in concurrent evidence sessions.
Conclave 4 (which undertook a qualitative analysis of the loads and stresses on the Valley Span) is composed of Prof Alexander Baitch and Messrs Henry Hawes and Harry Better (engaged by Mrs Matthews), Dr Simon Barter (engaged by SPI), and Dr Havard (engaged by UAM). These experts gave oral evidence with the members of Conclaves 1 and 3 during a four-week concurrent evidence session in November/December 2013. This session dealt solely with the question of the cause of the failure of the Valley Span on Black Saturday.
At the end of that concurrent evidence session the question arose as to which experts should be recalled to deal with the issue of breach. Professor Baitch and Mr Hawes had, in their individual reports, opined on this issue and SPI, as it was entitled to, sought to cross examine both experts.
Dr Havard (as his CV demonstrates) is a very experienced mechanical and civil engineer in the electrical industry in North America. As I mentioned, his report,[4] dated 17 August 2012, dealt with the issue of causation, focussing on the role, if any, of the misaligned helical termination on the failure of the conductor. His conclusions drew heavily on a laboratory simulation he used to endeavour to replicate this piece of infrastructure and its effect on any potential fracture of the line. Dr Havard concluded in his report that the misalignment did not cause or contribute to the conductor failure; if anything it may have increased the life of the conductor.[5] He did not in terms deal with questions relating to breach.[6]

Dr Havard's evidence during the concurrent evidence session

During the course of the November/December 2013 concurrent evidence session Dr Havard said the following:

DR HAVARD: I would say a little bit about damping because damping is something we studied extensively within one of the CIGRE working groups that I belong to and we put out a guide on safe tensions for conductors to avoid fatigue failures. The two parameters that are important for damping are the tension over mass and the value for tension over mass and the value for the tension over mass for this conductor is exceedingly high, and the second one is span length.

HIS HONOUR: For the three test conductors are we talking about?---

DR HAVARD: All conductors of all sizes. Vibration relates to tension and it relates to length. Where we have conductor spans of comparable length - and now I am talking about those that go across fjords in Norway where they can be up to five kilometres long, there is frequently a damping system added to the middle of the span, as well as damping at the ends. So this particular span, if it had been in the company I work for in Ontario Hydro, we would have added what we call a wave trap in the middle. Lines of this size that go across rivers, for example, would have extra dampers at mid-span to trap waves because the benefit of dampers is limited. It has a length component to it. So in the middle of the span we would put a pair of dampers. Those would be, in that case, Stockbridge dampers but they are located at a particular separation so they are effected at all frequencies. That is a practice that is a standard practice in most utilities. While I mention damping again, the bridging conductor is also a damper. There were talks about whether it was responding to Aeolian vibration and it oscillates at its own natural frequencies. It's a very low tension element and you can just twang this one and you can see that it will vibrate at its own natural frequencies and at those frequencies it's acting as a damper.

Large parts of northern Europe use what they call a Bretelle damper which underslings the suspension point and joins the two spans each side and that has served as a damper routinely on larger transmission lines and it is geometrically not too different from the bridging conductor. So we have two parallels to the bridging conductor that show that it has damping properties. Damping, I think, is a critical thing that we should have been talking about a little bit more. The lack of dampers, in my view, is a critical element in this failure and I believe the Australian Standards clearly show that this should have had dampers on it.[7]

Part 4.6 of the Civil Procedure Act 2010 (Vic)[8] regulates expert witnesses and expert evidence. Section 65H reads as follows:

65H Court may give directions in relation to expert evidence

(1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.

(2) A direction under subsection (1) may include, but is not limited to-

(a) the preparation of an expert's report;

(b) the time for service of an expert's report;

(c) limiting expert evidence to specified issues;

(d) providing that expert evidence may not be adduced on specified issues;

(e) limiting the number of expert witnesses who may be called to give evidence on a specified issue;

(f) providing for the appointment of-

(i) single joint experts; or

(ii) court appointed experts;

(g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding.

(3) A direction under subsection (1) may be given at any time in a proceeding.

Also of relevance is Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)[9] which applies to expert evidence.
Rule 44.03 requires a party who intends to adduce expert evidence at trial to serve a copy of the expert's written report not later than 30 days before the commencement of the trial and that this report shall state the opinion of the expert (among other things). Dr Havard's report, dated 17 August 2012, was filed by UAM in accordance with r 44.03.
Relevantly, r 44.05 reads as follows:

Save with the leave of the Court or by consent of the parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order.

Section 42 of the Evidence Act 2008 (Vic)[10] enables the Court to disallow leading questions in particular circumstances:

(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which-

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and

(b) the witness has an interest consistent with an interest of the cross-examiner; and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court's power to control leading questions.

Should Dr Havard be cross-examined by counsel for Mrs Matthews and if so, on what terms?

A judge has the power to prevent counsel cross-examining a witness (or to limit cross-examination).[11] However, it is a fundamental principle of adversarial civil litigation that a party's cross-examination of an opponent's witness is not confined to the matters addressed by that witness in evidence in chief.
Turning to each of the points raised by SPI in its written and oral submissions. First, I do not accept that Mrs Matthews should be prevented from cross-examining Dr Havard simply because a snippet or snippets of evidence on breach was "volunteered rather than adduced" from him. Assuming that this is a correct characterisation, it is no basis for preventing cross-examination.
Whilst I accept that ss 49(3) and 65H of the CPA would enable a court to limit cross-examination of Dr Havard, there is no basis to do so in the context of this case. Merely because the answers Dr Havard has given were provided in a concurrent evidence session addressing the question of causation does not preclude counsel for another party from cross-examining at large a witness called by his or her opponent (as is the case here).
This has always been the case in common law trials: cross-examination is at large provided the subject is relevant and the evidence is otherwise admissible. Dr Havard can be cross-examined on his opinion relevant to breach provided his evidence complies with s 79 of the Evidence Act. Alternatively, if his evidence be of factual matters, then it would need to flow from his personal knowledge of the facts deposed to.
I also note that, procedurally, r 44.05 of the Supreme Court Rules creates no obstacle to cross-examination by counsel for SPI.
Second, I do not accept SPI's contention that Dr Havard is, in some way, in "the plaintiff's camp". He is not. He is retained by SPI's co-defendant UAM and, merely because he has given a broad hint that his evidence may be of some utility to Mrs Matthews' case on a single issue does not mean Dr Havard is in her camp.
Third, I do not accept SPI's submission that I should not permit leading questions being asked by counsel for Mrs Matthews of Dr Havard. Section 42 of the Evidence Act permits me to disallow leading questions in certain (non-exhaustive) circumstances. In the case of the matters listed for consideration in s 42(2), these are merely matters to be taken into account - they do not require disallowance of leading questions. In any case, I am not satisfied that the three conditions have not yet been satisfied: I do not accept that Dr Havard's evidence in chief can be generally characterised as unfavourable to Mrs Matthews' case; that Dr Havard can be characterised as having an interest consistent with that of the cross-examiner; or, that Dr Havard is sympathetic to Mrs Matthews generally or on a particular point. In relation to s 42(3), I am not satisfied at the present time that the facts would be better ascertained without the use of leading questions.
Fourth, I do not accept SPI's submission that Mrs Matthews should give notice of the matters on which her counsel will seek to cross-examine Dr Havard. In my opinion, as counsel for Mrs Matthews pointed out, this would serve no real purpose. Mrs Matthews' lawyers do not know what Dr Havard is going to say. If there is any unfairness to SPI it can be the subject of an application during or after Dr Havard's evidence.
Finally I do not consider it necessary for Dr Havard to give evidence on a voir dire in order to establish his expertise. At the present time, I am satisfied that Dr Havard is qualified to give evidence on the issue of vibration and the use of dampers.

Counsel for Mrs Matthews will be permitted to cross-examine Dr Havard. At the present time no conditions should be imposed on the scope of the cross examination.

SPI ELECTRICITY PTY LTD (ACN 064 651 118) First Defendant

OF ENVIRONMENT AND PRIMARY INDUSTRIES Third Defendant

SPI ELECTRICITY PTY LTD (ACN 064 651 118) Plaintiff by Counterclaim

(ACN 060 674 580) First defendant to Counterclaim

OF ENVIRONMENT AND PRIMARY INDUSTRIES Second Defendant to Counterclaim

COUNTRY FIRE AUTHORITY Third Defendant to Counterclaim

STATE OF VICTORIA Fourth Defendant to Counterclaim

CAROL ANN MATTHEWS Fifth Defendant to Counterclaim

[1] EXP.UAM.0001.0001, 0007. Dr Havard's CV is located at Appendix 2 to his written report: EXP.UAM.0001.0001, 0074-88.

[3] Letter of instruction to Dr Havard extracted in Dr Havard's expert report: EXP.UAM.0001.0001, 0060.

[5] See eg Executive Summary of Dr Havard's report: EXP.UAM.0001.0001, 0002.

[6] There are some oblique references in Dr Havard's report said by counsel for Mrs Matthews to deal with breach. I do not think the issue is defined that clearly.

[11] CPA s 49(3); see also Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 6) [2011] VSC 294, [15].

Court (General Civil Procedure) Rules 2005

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