Rhoden v Wingate

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40757/01 DC 8345/00

SHELLER JA HEYDON JA PEARLMAN AJA

Tort - negligence - personal injury - collision between motorcycle and motor car - absence of direct testimonial evidence - difficulty of ascertaining relevant facts

Evidence - expert opinion evidence - Evidence Act 1995 (NSW) s 79 - expert reports - admissibility - requirement that opinion be based on assumptions capable of proof by admissible evidence Practice - tendering of expert evidence - where called early in party's case - where not in satisfactory form - objections to evidence - time appropriately taken - appropriate procedure where objection taken after close of plaintiff's case - failure to follow - consequences

The plaintiff sustained personal injury when his motorcycle collided with the defendant's motor car. He sued the defendant in negligence but was unfit to give direct testimonial evidence because of his injuries, and relied on reports made by expert witnesses which became Exhibits B, C, M and N. The defendant did not testify. On day one of the trial Exhibits B and C were tendered. The defendant objected to passages from B and the whole of C. The trial judge admitted Exhibit A, excluding the passages objected to on the ground that they referred to material not before the court. Exhibit B was admitted in total. On day two of the trial Exhibit M was admitted without objection. On day three of the trial Exhibit N was tendered. The defendant objected to certain passages. The objection was upheld and Exhibit N admitted without those passages. Later on day three, after the close of the plaintiff's case, the defendant objected to "the opinions expressed in [all] these reports", seeking total exclusion of the expert opinions on the ground that they were based on facts not proved in evidence, and therefore were inadmissible. The trial judge excluded the reports totally as "unduly prejudicial" to the defendant under Evidence Act 1995 (NSW) s 135(a). The plaintiff was unable to call evidence in meeting the defendant's objection, its case having closed. A verdict was entered for the defendant. The plaintiff appealed. Held, (Heydon JA, Sheller JA agreeing, Pearlman AJA dissenting), allowing the appeal and ordering a retrial, the exclusion of the expert reports after the close of the plaintiff's case was in error and denied the plaintiff due process of law and a fair trial. Accession to the defendant's application at that late stage would have been satisfactory only on the condition that the plaintiff be able to reopen his case as of right: [73]. Per Heydon JA:

1. The plaintiff's primary argument for the admissibility of the expert evidence was neither referred to nor dealt with at trial. The impugned opinion was not "based on" material in certain "quotes"; "the quotes" were only the source of a theory the expert rejected, not the source of a theory propounded by him: [76]-[77].
2. The extent of, and basis for, the trial judge's rejection of the expert evidence was defective. a. The facts referred to by the expert were tolerably clear. They related to different theories of the course of events, not the experts' opinions themselves: [78]-[86] b. Complete rejection of the reports was in any event unnecessary because excision of problematic passages would not have rendered the reports useless. There was evidence which, if accepted, was capable of establishing the truth of the assumptions underlying the expert opinion: [87]-[99].
3. The trial judge disabled herself, by an erroneous exclusion of the expert reports, from considering the totality of the plaintiff's case, and from understanding the experts' reasoning. It could not be said that acceptance of the reports would not have resulted in a different outcome: [101]-[104]. O R D E R S

2. The verdict and orders of the trial judge in favour of the defendant are set aside.

4. The defendant is to pay the plaintiff's costs of the appeal.

5. The costs of the proceedings in the District Court to date are to be in the discretion of the trial judge conducting the new trial.

6. The defendant is to have a certificate under the Suitors' Fund Act if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40757/01 DC 8345/00

SHELLER JA HEYDON JA PEARLMAN AJA

21 June 2002 RHODEN v WINGATE Judgment 1 SHELLER JA: In an Arcadian forensic setting, if expert evidence is to be used, a party would first put its primary factual material before the court either in chief or in the course of cross-examining its opponent's witnesses and then call expert witnesses to express opinions based on assumptions of fact that that party claimed the court would find proved to its satisfaction on the evidence. In practice that order of events is rare. In the first place parties are expected to exchange expert reports before trial; Pt 28 r 8(3) of the District Court Rules 1973. Attempts to produce a consensus between experts are and should be encouraged. In the second place, expert witnesses cannot fairly be asked, except at high cost, to travel to courts, sometimes away from Sydney, to wait for the case to be called and then for that late stage in the evidence to be reached. Frequently, expert reports are tendered at an early stage. Often the judge is called upon to consider them without hearing the expert witnesses. 2 In the present case, it was convenient to call part of the plaintiff's expert evidence early in his case. If in an expert report, which is tendered, facts are assumed which are legitimately in issue and have to be proved or if the report is to be admitted conditionally upon those facts being proved, the facts to be proved should be clearly identified. As Heydon JA has pointed out in his draft reasons for judgment, which I have had the benefit of reading and with which I agree, part of some of the reports tendered by the plaintiff were rejected and other parts were admitted. No condition was imposed and no undertaking obtained from counsel. In my opinion, once the plaintiff had closed his case, the defendant should not have been permitted to apply to exclude the evidence which the trial Judge had already unconditionally admitted. If this was to be done it could only be done on the basis that the plaintiff's case was, on the application of the defendant, reopened and then the challenge made. Alternatively, the defendant upon the close of the plaintiff's case, could have moved the court for an order directing the entry of judgment in the defendant's favour. However, the price of doing so was that he might not adduce evidence or further evidence in the proceedings; Pt 26 r 8 of the District Court Rules. 3 The confusion, which flowed from counsel for the defendant being permitted to make the application he did after the plaintiff's case closed, is fully chronicled in Heydon JA's reasons for judgment. I am troubled by the absence of any effective protest from the plaintiff's counsel. The trial Judge did not receive the assistance to which she was entitled in dealing with what was an unusual application. It had no merit and should have been refused. However, the injustice to the plaintiff in the result was such that I have come to the conclusion that this Court must make the orders that Heydon JA proposes. Accordingly, I agree with that course. 4 HEYDON JA: This is an appeal by an unsuccessful plaintiff against a decision by Gamble ADCJ on 26 July 2001 that there should be a verdict for the defendant. The trial took place on 25-27 June 2001. The plaintiff, who was riding his motorcycle along Station Road, Albion Park, on 24 November 1996 behind the defendant's motor vehicle, alleged that the defendant caused him to suffer injuries by negligently attempting to turn right into the driveway of 8 Station Road from the left hand side of the road. 5 The capacity of the trial judge to establish the facts was gravely hampered by the absence of direct testimonial evidence. The plaintiff's injuries rendered him unfit to give evidence. The defendant chose not to give evidence. The defendant also chose not to call any eye witnesses, even though statements of several eye witnesses had been procured who were apparently favourable to the defendant's cause. 6 What were the competing positions of the parties as to how the accident was caused? The question has an illusory and indirect character in circumstances where one party could not offer an account of what had happened, and the other would not. However, the primary position advanced by the bulk of the plaintiff's experts and in the Statement of Claim was that the defendant decided to turn right into his driveway and initially moved onto the left hand side of the road in order to improve the angle of his approach, which was obstructed by a pole adjacent to the driveway. This manoeuvre left the portion of the left hand side of the road adjacent to the double centre lines free. This in turn caused the plaintiff to think that part of the road was clear for his own approach. The defendant then attempted to drive his car across the plaintiff's path when there was neither the time nor the space in which to do so. A collision took place on the left hand side of the centre lines with the motorcycle striking the car at an obtuse angle. 7 The defendant's version, as appearing partly in the statements of witnesses available to the experts but not called to give evidence and partly in the Defence, was that the defendant's car approached his driveway very close to the centre lines. He came to a halt or near halt. Then he began to turn before being struck by the plaintiff's motorcycle at an acute angle as a result of the plaintiff driving too fast, failing to keep a proper lookout, failing to notice the defendant's brake lights or right hand indicator and attempting to pass the plaintiff on the wrong side of the road across the double lines.

Ground 1: rejection of the plaintiff's expert evidence

The ground 8 This ground was: "The Trial Judge erred in rejecting the expert opinion evidence called in the case for the appellant concerning the reconstruction of the accident." 9 To understand that ground, it is necessary to examine the extremely unusual course of events at the trial.

Mr Nunn's evidence 10 The first witness at the trial was Mr Nunn, a friend of the plaintiff's. On the afternoon of the accident but after it, he made various observations of the scene: "I saw paint on the road. I saw a mark on the road inside that paint. I saw debris on the side of the road. I also saw blood on the road. I seen a mark on a tree nearby, a oil or perhaps a burnt stain on the grass nearby, and more debris."

He further described the mark, which was inside a yellow three sided marking, as follows: "It was a mark on the road. It was about four inches long. It was in a tear shape, if I could put it in that description. It started shallow on one end and got deeper at the other end, and looked new."

He was cross-examined with considerable aggression, but not so as to suggest that his observations about that mark were erroneous.

Objection to Mr Jamieson's evidence 11 The next witness was Mr Jamieson. After Mr Jamieson gave his name and occupation, namely that of consultant traffic engineer, counsel for the plaintiff tendered two reports which Mr Jamieson had prepared, dated 1 December 1998 and 9 June 2000. The transcript appearing in the appeal papers does not fully record what happened next, and when it became apparent during the hearing before this Court that a precise record of what happened next was desirable, the parties arranged for the production of a further transcript. It is important to set out what that transcript records. 12 First, counsel for the defendant said: "I have copies of those [two reports] if your Honour please and I have some objections to them at, probably now would be as good a time as any for me to make my objections."

The trial judge assented to that course. 13 Counsel for the defendant then said: "If your Honour pleases, if you go to the first report which is dated 1 December 1998, the date is right down at the bottom right hand corner your Honour. If your Honour would then go to page 11 of that report your Honour will see I, from the middle of page 11 in a statement, etc, I object from there to the end of the page. Then if your Honour goes to page 15, at the bottom of the page, the last paragraph starting ['One estimate'] to the end of that paragraph. Then on page 16 in the penultimate paragraph on page 16 where it starts 'also' to the end of that paragraph."

The material on page 11 was a statement by Mr Nunn. The passage on page 15 objected to was a short one: "One estimate contained in the material put the impact between 60 km/h and 80 km/h. This analysis would not disagree with that estimate."

The passage on page 16 objected to was also short: "Also, there was some discrepancy between the witnessed pre-crash speed of the motor cycle versus the physical evidence. Various witnesses suggested the motor cyclist was travelling at high speed. However some of these estimates relied on noise rather than visually viewing the moving motor cycle." 14 Counsel for the defendant then continued: "Then in relation to the report dated 9 June, your Honour will notice there are several things about this report of 9 June. The first is that it does not actually purport to be this witness' sole report, it's a joint report. If your Honour turns to page 15. Secondly, this is a report which in essence comments upon the report of the defendant's expert which is not before your Honour, so that our first submission in relation to this report is that it's not admissible because it doesn't contain any material which is anything other than rebuttal, so it's a rebuttal of something which is not yet in evidence. And as my Learned Junior reminds me, the Rules of the District Court make no provision for joint reports, for joint expert reports, and the final thing is that if your Honour goes to page 15, if your Honour is against me in all of those and allows this report into evidence then the whole of page 15 we object to. Now if your Honour would like me to amplify those objections and give my reasons I am prepared to do so now."

The trial judge assented to that course. 15 Counsel for the plaintiff indicated that he did not press the half page of material objected to on page 11 of the 1 December 1998 report. 16 Counsel for the defendant then said: "The next objection is on page 15. It's simply purporting to deal with an estimate. It's really a comment on somebody else's evidence and it's a comment on somebody else who is unidentified and it's objectionable for each of those reasons and should be struck out. Page 16, again the objection is that it's a comment on other persons' evidence without identifying the witnesses to whom he refers and the opinion is really nothing more, it's not an expert opinion, it's nothing more than a comment about the cogency of somebody else's view. Your Honour, at the back of that report is a statement from Michael Nunn, and I take it that that is similarly not pressed by my learned friend."

Investigation then apparently revealed that the statement so identified was not included. 17 Counsel for the defendant then turned to the report dated 9 June 2000. He said: "The first thing as I have already submitted is that it is a joint report. On its face it purports to be a joint report. There are several things to be said about that. The first is as I've already submitted the rules make no provision for a joint report but even leaving that to one side the problem with which the court is confronted is that there is no way of being able to identify those opinions which represent the opinions of Mr Jamieson and those opinions which represent the opinions of Mr Schnerring, or whether they happen to coincide in every respect. Secondly, as I say, on its face the report simply consists of rebuttal and if your Honour goes to page 4 of this report your Honour can see the force of that submission. …"

Page 4 of the report said: "A perusal of the lists of material reviewed by Mr Jamieson and Mr Keramidas indicated that the same set of material was not reviewed by both authors. Mr Schnerring in his supplementary report relied on material made available to Mr Jamieson. Mr Keramidas appears to have obtained additional material directly from one of the investigating Police officers (then Senior Constable Mark Sculthorpe)."

Counsel's point was that Mr Keramidas was the author of a report which had been served on behalf of the defendant. 18 Counsel continued: "… and the obvious question is, what is your Honour supposed to do with all that? None of that material is before the court; none of that forms part of the primary material, and in our submission the whole report is flawed and fails and ought not to be received into evidence as an expert report because the primary facts upon which the report purports to be based are simply missing."

By "that material", counsel may have meant Mr Keramidas' report or he may have meant "the lists of material reviewed by Mr Jamieson and Mr Keramidas". 19 Counsel for the defendant then completed his submissions by saying: "Then if your Honour goes to the next page, page 5, your Honour will see that again the report simply amounts to comments on somebody else's report which is not before your Honour. And again, what is your Honour supposed to make of all that? So it ought not to be received into evidence in that form. Those are the submissions, if your Honour pleases."

Counsel for the defendant did not advance any argument against the reception of page 15 of the second report, despite having objected to it at the outset; the trial judge later appeared to treat the objection as having been withdrawn, for she did not reject page 15 of the second report and did not mention it in the course of her rulings. 20 Counsel for the plaintiff then put the following arguments: "Page 15 of the first report as it is, I emphasise as it is, we would postpone the tender but we have no doubt our expert witness will be able to tell your Honour who made the estimate. If that is the case then it is admissible because he is quite entitled to give an estimate of who provided certain information to him and then offer his professional opinion. That's what he's there for in terms of his qualifications. In relation to page 16, the same applies. If we are able to establish which witnesses he is talking about then he is entitled to offer his opinion if it is as always appropriately based and based on his professional qualifications. In relation to joint reports the matter will be overcome simply with the passage of time. Mr Schnerring will be called as a witness and my friend will be able to determine very readily what parts, if any, or in whole, they have jointly signed the report. Now, it is a joint report. There is nothing to prohibit joint reports. Dealing with the - well I emphasise - if the authors of the reports are available to give evidence concerning the contents of the report and they are, and Mr Schnerring as I say will be called. So far as a rebuttal report is concerned these reports as your Honour is probably aware are a day to day experience dealing with one side's litigation serving a report and then the other replying as it were. In a vacuum well then the report of Mr [Keramidas] presumably would be tendered out of order, then presumably Mr Jamieson would come back and then give some further evidence. That's impractical and one would assume that Mr Jamieson will be providing evidence to your Honour and his report in part or in whole will be tendered. If that's not going to be the case then in the interests of the litigation proceeding smoothly then my friend should tell your Honour and then we won't waste your Honour's time with having any evidence from Mr Jamieson in rebuttal because if he's not being called and they're not going to rely on the report, that there seems little point." 21 Counsel for the defendant replied to the plaintiff's arguments as follows: "Your Honour, it would not have escaped your Honour's attention that this case is being run in a somewhat unusual way. The plaintiff is not apparently able to give any evidence of the circumstances of the accident. The witness that was called presumably to establish objective evidence is the last witness, Mr Nunn, and I don't want to say anything about his evidence at this stage. Usually in a case involving an accident such as this litigation one would expect that there would be a police officer or officers and other evidence led to establish things such as road dimension, point of impact, width, etcetera, line markings, what was discovered at the scene of the accident and so on. It seems that we are not going to be given, the court is not going to be given that kind of evidence. What is being done is Mr Nunn is called and now we've got Mr Jamieson with his views and opinions. The difficulty that the plaintiff is confronted with is that if in truth the primary facts are never established upon which Mr Jamieson's first report purports to be based then this whole report will ultimately be of no value, it will fall to the ground, and your Honour knows there's plenty of authority in support of that legal principle. Mr Jamieson is being called in the absence of any real relevant primary facts. Now, that's a course that's entirely open to the plaintiff. My learned friend can call his case any way he wants to, but the risk that he's now facing is that unless the primary factual material is called then this report will have no probative value and there will be nothing for me to reply to. So that my learned friend's taunting of me to say, well indicate to her Honour whether you are going to call anybody, or whether you are going to call your expert, the obvious and simple answer to that taunt is it depends on whether you prove a case, and the way the case is being structured at the moment it's rather surprising that we haven't seen the police officer and we haven't seen other witnesses who would be the logical and obvious witnesses to call to lay an evidentiary basis for the foundation of this report of Mr Jamieson. Now, I don't want to say any more but that is in fact where we are currently standing. With Mr Jamieson being called none of these primary facts in truth being established at this stage, if the evidence never progresses beyond that stage then this report will never have any probative value." 22 To this counsel for the plaintiff replied: "That's true, your Honour, but we'll just have to wait and see who we're going to call because if your Honour would accept, yes Mr Jamieson has some personal commitments that can't be put off later in the case and he's available today and that's why he's being called out of order." 23 A most important but obscure part of the debate then began. It will be necessary later to examine what it signified. "HER HONOUR: Where my mind was going was to a related matter. When I look at the objections to the first report on pages 15 and 16 Mr Jamieson is relying on the material. I then go back to page 3 and I see the material and it's the type of material that Mr Stitt has referred to, that is the transcript of the police statements, that primary material. What my slow mind was trying to get around was how we could delay the tendering of those particular paragraphs on pages 15 and 16 until there is an evidentiary basis for them, that is a basis on which Mr Jamieson can comment, can express an opinion, because the expert report, the material on which the expert report expressed an opinion must be before the court it seems. (emphasis added) [Counsel for the defendant]: If your Honour pleases. [Counsel for the plaintiff]: Your Honour, it doesn't have to be before the court at all. It only, if at a later stage it doesn't live up to the claims then your Honour can make a decision at that time but in the meantime you will have Mr Jamieson's evidence. HER HONOUR: Yes, I'm looking at ultimately …, --- [Counsel for the plaintiff]: I agree entirely. HER HONOUR: As [counsel for the defendant] says there's nothing I can do with this expert's report unless I have some evidence. [Counsel for the plaintiff]: That's right. There's no problem under the Evidence Act of ruling something inadmissible later on down the track or doing whatever your Honour wants to. But in relation to Mr Jamieson he's here right now and ready to give his evidence."

The trial judge's rulings on Mr Jamieson's evidence 24 The actual rulings of the trial judge are then recorded as follows: "Report number one, we will receive with the passage on page 11 struck out, that we have already identified and that's the second half of the page, beginning with 'In a statement made by Michael Nunn'. You've conceded that and the passages that [counsel for the defendant] has identified are currently not before the court then that's that final 'one estimate' and on page 16 the paragraph also down to 'moving motor cycle'. In relation to the joint report, if both the experts are to be called then, though it's rather messy, perhaps, I see no objection to receiving a report from them. In relation to page 4, I take that first sentence to mean, 'perusal of the lists of material reviewed by Mr Jamieson and Mr [Keramidas]' indicated that Mr Jamieson and Mr [Keramidas] didn't see the same material not that Mr [Schnerring] and Mr Jamieson didn't see the same material, because the next sentence is 'Mr [Schnerring] saw the same material as Mr Jamieson has' in which case the material on which they rely is clear and one assumes that if Mr [Keramidas'] report is tendered we will know the material on which he bases his opinion and Mr Jamieson and Mr [Schnerring] ought to be able to then identify the gap for us. The nature of the report, although I haven't read it, as a rebuttal of another report - my experience is that is no objection to an expert report, and is standard practice in this court, and indeed one encourages experts. I think the code of practice encourages experts to compare notes and to discuss each other's reports, that's most helpful, so I think the report is unobjectionable on that basis. Page 5, that covers that point that it's a comment on Mr [Keramidas'] report. If Mr [Keramidas'] report never comes into evidence, then so be it. There is I think - [counsel for the plaintiff], you would find it difficult to make use of this report. Those are my rulings in respect of those matters." 25 Though the principal transcript does not record this clearly, the 1 December 1998 report was marked Exhibit B, subject to the deletion of the passages on page 11 (not pressed), page 15 (rejected) and page 16 (rejected). The 9 June 2000 report was marked Exhibit C, with the trial judge noting but not resolving a possible difficulty that might arise if Mr Keramidas' report, to which it replied, did not come into evidence. This difficulty did not in fact come to have any decisive significance, and the supposed difficulty occasioned by Exhibit C being a joint report did not come to have any significance at all.

Mr Jamieson's oral evidence 26 Mr Jamieson then gave more than six pages of evidence in chief. Among it was the following: "HER HONOUR: Q. What material did you have, Mr Jamieson? A. On page 3 of my report dated 1 December 1998, I was supplied with various documents and photographs and so on [including statements of persons not called as witnesses], and that's listed. I also looked at the site on 20 November 1998. [Counsel for the plaintiff]: Q. On the basis of the material listed, you record a view, how do you say the accident happened? A. I reviewed this material I have listed on page 3, which included the descriptions of damage and so on, including the photographs of the motor cycle that I have shown in my page 12, and also paint marks made on the road, which I have included in my figure 8. On the basis of that material I had available to me at that time, it was evident that an impact occurred between a turning Volvo and a motorcycle travelling in approximately the same direction as the original travel of the Volvo. What focussed my attention was the angle of impact, which related to the likely pre-impact movements of the Volvo. The matters which determined the angle of impact were the damage to the Volvo, the damage to the motorcycle, the rest position of the motorcyclist and the movement of the motorcycle itself after impact. The remaining piece of the puzzle, in my view, was a position of a power pole immediately next to the driveway in which the driver was evidently turning into, which dictated the angle in which the driver needed to enter the driveway. Taking all those matters into consideration, it was clear in my mind that it was a quite obtuse angle impact. That means nearer 90 degrees rather than zero degrees, or should I say, greater than 45 degrees which defines an obtuse angle impact. Combined with the paint mark left on the roadway, it appeared that the Volvo commenced to turn right into a driveway but most relevantly it appeared to turn right not from near the centre line of the road but rather from somewhere to the driver's left as he was proceeding along and then by the time he reached an area near the centre of the road -- OBJECTION. SPECULATION. LEGAL ARGUMENT. [Counsel for the plaintiff]: Q. Where were we, Mr Jamieson? A. We were having a turning Volvo and the physical evidence which comprised the marking on the roadway is presumably marked by investigating police - that's an assumption I made - the described damage to the Volvo and the quite distinct damage to the motor cycle combined with the witnessed rest position of the motor cyclist and the witnesses - or the recorded I should say - post impact path of the motor cycle, all were totally consistent with an obtuse angle impact which occurred on the motor cyclist's correct side of the road. And, as my report said, some witnesses had different views. Q. In terms of the speed of the motor cycle, do you wish to say anything about that, at the point of impact first of all, if that is possible? A. From a physics viewpoint it's possible to create a broad guide based on the damage sustained to both vehicles and the so-called throw distance of the motor cyclist and one can only produce a range of speeds, there is no science to produce a precise number but the damage in the throw distance appeared not to be inconsistent with a impact speed in the 60s or 70s." 27 Certain photographs were then tendered and admitted as Exhibits D and E. Mr Jamieson indicated aspects of the photographs which "gave weight to my view that it was an obtuse angle impact". He was then asked about a diagram in Exhibit B called "Figure 10": "Q. Figure 10, what does it represent so far as your opinion is concerned? A. Figure 10 was plotted to represent the impact geometry as suggested by the physical damage to the respective vehicles and the mark on the road. Q. Does it purport to demonstrate in a drawing or diagram how the accident impact took place? A. Well, it demonstrates the impact geometry and the reason I have got the dotted lines marked 'swept path' is simply the physical constraints of a vehicle turning, a vehicle can't spin on its axis. That's why I put in those dotted lines so implicit in figure 10 is the pre-crash movements of the Volvo, constrained as it was by its turning restriction."

The "mark on the road", it may be inferred, was that described by Mr Nunn. 28 While Mr Jamieson's reports did not expressly conclude that the second theory of the accident illustrated in Figure 10 was correct, he did doubt the first theory, his rejection of the first theory pointed strongly to the second, he appeared to regard the physical evidence as pointing to the second theory, his oral evidence supported the second theory, and his colleague Mr Schnerring supported the second theory "strongly". The cross-examination did not shake Mr Jamieson even though the record of it extends over thirty-nine pages and was conducted with much force and ability. There was no re-examination. The first day's proceedings then ended.

The events of the second day 29 The opening part of the second day was taken up with the evidence of Mr Dent, an officer of the Roads and Traffic Authority, the tendering of exhibits through him, and the evidence of Mr Gosling, another officer of the Roads and Traffic Authority at the material time. Mr Schnerring, an engineer, who was the joint author of Exhibit C, then entered the witness box, and a report of his prepared for Jamieson Foley and dated 11 January 2000 was tendered and marked Exhibit M. The transcript records that it was admitted without objection. His evidence in chief is recorded over three pages. He was asked, without objection, whether he adhered to the following passage in Exhibit M: "The damage to the two vehicles involved in the crash supports the view that the Volvo sedan was turning from either the left part of the westbound lane or from the road shoulder on the southern side of the road, and that Jason Rhoden was passing the Volvo near to the centreline but on the correct side of the road at impact."

He said he did. He also said that there was nothing in the report which he wished to alter. The record of his cross-examination, which extends over twenty-five pages, does not reveal any shaking of his opinions. 30 Another officer of the Roads and Transport Authority, Mr Chapman, then gave evidence, and the second day concluded.

The events on the morning of the third day 31 The third day opened with the calling by the plaintiff of Mr Wingrove, a transport engineer. His report of 4 May 2001 was tendered. The operative part of it was three pages long; paragraphs 5-7, being part of one page, were objected to by counsel for the defendant and rejected. According to the transcript, there was no other objection, and the report was admitted without paragraphs 5-7 and numbered Exhibit N. Those paragraphs criticised the accuracy of what two persons, who were not called to give evidence, said in their witness statements. Mr Wingrove's evidence in chief is recorded over about three pages. The transcript records the following in the course of his evidence in chief: "Q. Did you come to any conclusion as to where the Volvo sedan commenced to make its turn into what ended up being the drive way of the owner's house? OBJECTION. NOT INCLUDED IN REPORT. REPHRASE QUESTION." 32 The cross-examination is recorded over more than five pages. After some brief re-examination, short evidence was given by the plaintiff's father about his clothing, and Mr Northy gave evidence about Honda motorcycles.

The defendant's application to exclude the opinion evidence called by the plaintiff 33 The principal transcript then records: "WITNESS EXCUSED CLOSE OF CASE FOR PLAINTIFF LEGAL ARGUMENT" 34 Lest there be any doubt that the legal argument took place after the plaintiff had closed his case, the trial judge recorded that fact in a judgment she gave after the legal argument. Further, an additional transcript recorded that legal argument over ten pages. It commenced thus: "[Counsel for the plaintiff]: That's our case with this proviso by arrangement with my friend he accepts what I said from the bar table and maintain from the bar table that the plaintiff cannot remember the circumstances of the accident. [Counsel for the defendant]: Your Honour, there is a submission which I wish to make at this stage in relation to exhibits B, C, M and N. Your Honour, the submission is this that each of those exhibits purports to be an expert report. The submission of the defendant is that none of the opinions expressed in those reports has any probative value and those opinions should not be accepted as evidence for the following reasons." 35 The reasons which counsel for the defendant then developed were, first, that an expert opinion was not valuable unless the facts on which it was based were proved by admissible evidence; and, secondly, that if they were not, the opinion based on them "falls to the ground" and "is itself inadmissible". He said that much of the material on which Mr Jamieson said he relied in composing Exhibit B was not in evidence; and that the report did not identify specifically which particular items among the totality of the material listed by Mr Jamieson was relied on. He said that the same applied to Exhibit N. He made the same submission about Exhibit C, with the additional point that Exhibit C, unlike Exhibit B, had not identified the totality of the material, whether tendered or not, which had been examined. He said that Exhibit M was simply an examination of which of the two "crash scenarios" described in Exhibit B was more likely, and hence did not stand on any factual basis of its own. 36 Counsel for the plaintiff made the following primary point: "The reasons why the reports are admissible are as follows: (1) that the experts qualifications are not in issue; (2) that the mere fact that we do not establish the factual basis of accounts that we reject in forming our opinion is ill founded. If Mr Jamieson or Mr Schnerring said on one occasion, I think they said it on 7 or 8 occasions, 'we reject the eye witness accounts in coming to our conclusion.' It wouldn't have mattered one jot if we tendered the statements. Our submission would still be their opinion is based on a rejection of these accounts. What they do say is, having rejected those accounts, this is what we based our opinion on. In relation to Jamieson, physical inspection of the scene, photographs and positions of the vehicles according to the accounts. He's entitled to do that and I argue this strongly to your Honour. Assume that there are no witnesses to a motor vehicle accident. One is dead, the other one is sufficiently maimed or incapacitated that they cannot remember and there are no eye witnesses. Is it seriously put that a accident reconstructionists who in fact are regularly called in fortunately such rare cases to say this is my opinion based on what I have and in many instances it's an inspection of the scene. It's an inspection of photographs, debris, et al. It's plainly admissible. The weight, the interpretation, the cogency of all of the contents of these things is ultimately a matter for your Honour." 37 He then referred to Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846 and quoted the first sentence in the passage set out in [38] below. He then said: " … is there any issue that they're the right photographs, is there any issue that is it the right car, is it the right motorcycle, is it the right street. All of those things we say are established unequivocally as facts. He's entitled to then say, well, look on the basis of those matters alone I offer my opinion … ." 38 Counsel for the plaintiff then quoted the last three sentences of the following passage from Paric's case: "It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence … . But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal ( Wigmore on Evidence , (1940) 3rd ed, vol II, para 680, p 800; 2 Wigmore, evidence para 680 (Chadbourn Rev 1979), p 942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and commonsense. As Wigmore states (at pp 941-2, Chadbourn Rev), 'the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect.'" 39 Counsel for the plaintiff then said: "The reason his Honour may have already considered why contrary versions are put in our reports so that the expert can say whether they agree with them or not. We don't have to establish whether they are factual or not. If they are according to the defendant, well that will be established at some stage. They are argued by the experts rejected and then their opinion is offered in a standard we say application of the rules." 40 Counsel for the plaintiff then argued that if, as he contended, the evidence was admissible under ss 76-80 of the Evidence Act 1995, it ought not to be rejected under s 135 (which gives the court a discretion to exclude evidence when its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or unduly wasteful of time). He submitted that the plaintiff's expert evidence was not unfair or prejudicial, and it saved time. He then referred to various authorities discussed in Odgers, Uniform Evidence Law (4th ed), page 182, but apologised for not having the volumes in court: "This is meant, and I emphasise this, of no criticism of my friend but I wasn't aware as to precisely what application he was to make." 41 Counsel for the defendant then rebutted some of the plaintiff's arguments, repeated his own in greater detail, and put arguments which he had not put in chief, as a secondary position, to the effect that the evidence should be rejected under s 135. 42 Counsel for the plaintiff then put further arguments, only one of which need be noted: "It would not have escaped your Honour's attention that my friend introduced in cross-examination these competing versions. Put to them, kept on putting to them, 'Well why do you reject these eye witnesses' and they gave their version why they did. So not only is it admissible in their oral evidence as to why they did it but their reasons as to why."

The reasons for judgment granting the defendant's application 43 The trial judge then adjourned until after lunch. On resumption she delivered a judgment dealing with the defendant's application. 44 The trial judge referred to various cases and then said: "Those authorities lead me to suggest that there are three tasks for me in this case. One, to assess from the expert reports and from the oral evidence whether Messrs Jamieson, Schnerring and Wingrove have identified the facts they were assuming to be true sufficiently to enable them to be measured against the evidence and then secondly, to assess whether the end product, that is those parts of their reports and evidence that are based on such identifiable evidence are relevant under section 55 and thirdly, if relevant, then whether they should be excluded under section 135 as prejudicial." 45 She then said that Mr Jamieson's report, Exhibit B, was in large measure not related to primary material quoted or summarised in the report. She said that Mr Jamieson's discussion of two competing hypothetical explanations for the accident was "based on a selection of unspecified evidence". She said: "If I were to hold such evidence to be relevant under section 55, which I do not, it would put the defendant in the impossible position of having to adduce all the evidence relied on by all the reports in order to be confident that it was able to rebut the suppositions being put forward by Mr Jamieson." 46 The trial judge then turned to a discussion of how s 135 had been applied in other cases. She continued: "Other aspects, I think, of the report of 1 December which may lead to even greater prejudice, are the fact that there, as against the two versions put against each other as hypotheticals, are the references in the report to such things as 'not all witnesses' in paragraph 5, 'pavement markings noted by police' and then further comment in paragraph 5.1 following that, the comment 'noted marks on the eastbound lane' which are probably by the police but could be anyone, references to 'various witnesses', 'some material suggested' and finally, in paragraph 6, 'if one took the witness statements at face value' and the other comment, 'however, various physical evidence did not support this' and in paragraph 6, as well, 'the discrepancies between the witnessed pre crash speed of motor cycle and the physical evidence'. All that is very general and unspecific. As the report of the 11 January 2000, exhibit M, depends on the two versions set up in exhibit B, it falls with that report. Exhibit C, the review of Mr Keramidas's report is difficult to assess in the absence of that report, but I suspect it too was founded on the same general evidence as exhibit B and M, and when considered with them, Keramidas report will not be admissible. Exhibit N, the report of Colin Wingrove of 4 May 2001, in the absence of any factual evidence against which to assess this report, it can best also be hypothetical, and as it's based very generally on the same evidence as the other reports it suffers the same problems as those reports. My conclusions are then that the reports of Jamieson, Foley and Associates of 1 December '98, 11 January 2000 and the report of 9 June 2000 and the report of Colin Wingrove of 4 May 2001, should be excluded under section 135[(a)]." 47 It is difficult to follow the passage just quoted so far as it analyses Exhibit B without setting out paragraphs 5, 5.1 and 6, to which it refers. As far as possible, phrases which the trial judge placed in quotation marks or phrases similar to those phrases, are emphasised. The last phrase emphasised to which the trial judge referred was part of a paragraph on page 16 of Exhibit B which had been rejected when Exhibit B was originally tendered on 25 June 2001. " 5. CRASH ANALYSIS From the material, there appeared to be two basic versions of the crash presented. The version presented by the witnesses (some evidently independent) involve the westbound Volvo approaching number 8 Station Road on its right, occupying road space close to the centre line, coming to an almost halt. Just as it commenced its turn right into the driveway, the Volvo was impacted on the right rear quarter by an overtaking motorcycle. The alternative version implied that the Volvo had not been close to the centreline but rather had been towards the left, possibly near the southern kerb of Station Road, and commenced either a full right turn towards the driveway, or a U-turn. The resultant impact occurred on a westbound lane when the Volvo was straddling the centreline at an obtuse angle. Figure 9 overleaf shows plot of the crash scene at a scale of 1:200 showing: · the east-west alignment of Station Road, · the pavement markings, · the position of the driveway at number 8 Station Road, · the positions of the utility pole adjacent to the driveway and the street tree. Also plotted on the Figure 9 was the 'swept path' needed by a turning Volvo if it was to drive straight into the driveway and allowing for the proximity of the pole. This swept path was plotted from Australian Standard AS2890.1, Supplement 1 - 1988, ' Templates - Off Street Parking '. The most relevant element of Figure 9 is that due to the proximity of the utility pole, any driver wishing to manoeuvre a large sedan into the narrow driveway would need to have effectively come to a complete stop before tightly turning right. Figure 10 overleaf shows a similar plot to Figure 9 but shows a version which may have happened based on the plaintiff's version. That is, the Volvo is occupying (say) the southern kerb parking lane and commences a right turn or U-turn with an impact resulting in the westbound lane. 5.1 Relative Merits of Versions The issues which arise from these versions concern the discrepancies between the 'witness' statements versus the described damage to the Volvo and the road markings. Also issues are raised which relate to the impact speed. In relation to the damage to the Volvo, if the impact took place as noted in Figure 9 it would be almost certain that scraping would take place all along its right side given the relatively acute angle of this impact. However, statements suggested that a major engagement took place on the right rear corner of the Volvo, indeed deflating the right rear tyre and not marking the vehicle any further. This would suggest a more obtuse angle collision. The associated issue involves the pavement marking as noted by the Police . It was suggested that the initial engagement point took place on the westbound lane. It was noted that the various other marks noted on the oncoming eastbound lane appeared to be post-impact marks from metal scraping and so on. Therefore, based on the Volvo's damage description (which suggests an obtuse angle impact) as well as the impact point being on the westbound side, a picture emerges that the Volvo had turned from a portion somewhere further south of the centreline. This is shown in Figure 10. Against this, are the statements of various witnesses which unambiguously described the crash as shown in Figure 9. These witnesses would need to be tested, in relation to their unobstructed views. 5.2 Impact speed Some material suggested the motorcycle had accelerated rapidly from the Princes Highway, accelerating through several gears before reaching the area of impact. The involved motorcycle, like a typical modern motorcycle is able to accelerate at extraordinary rates, rivalling that of racing vehicles. From a crash research viewpoint, taking into consideration: · the sideswipe damage to the left of the motorcycle, · the indentation type damage described to the left rear quarter of the Volvo, · the absence of scraping towards the front of the Volvo, and most importantly · the alleged post-impact movement of the Volvo which allegedly involved the driver simply driving ahead into the driveway after impact, would combine to mean the impact between the turning Volvo and the motorcycle was not excessive. … 6. Summary and Conclusions This crash involved a collision between a westbound Honda motorcycle and a turning Volvo sedan on a suburban collector street in fine daylight conditions. As a result of the collision, the motorcyclist received serious and permanent injury. Two versions of the crash were reviewed in the material. The first version put forward by the driver and various witnesses suggested the Volvo almost came to a stop near the centreline of this collector road in order to make a sharp right turn into a tight driveway. The geometry of this turn was restricted due to the proximity of a utility pole adjacent to the driveway. As the Volvo turned across the centreline, it was allegedly struck on its right rear quarter. The alternative version implied suggested that the Volvo was not near the centreline when it made its turn but rather made its turn from either the left part of the westbound carriageway or indeed the kerb on the southern side of the road. This version possibly involved the Volvo performing a U-turn rather than turn right into the driveway. It was clear that if one took the witness statements on face value , the driver's version (the Volvo being close to the centreline) should be accepted. However, various physical evidence did not support this . That evidence involved: · the isolated nature of the damage described to the right rear quarter of the Volvo, suggesting an obtuse angle impact, · the mark on the westbound side of the carriageway suggesting the motorcycle was on its correct side of he road at the moment of impact. Also, there was some discrepancy between the witnessed pre-crash speed of the motorcycle versus the physical evidence . Various witnesses suggested the motorcyclist was travelling at high speed. However some of these estimates relied on noise rather than visually viewing the moving motorcycle."

Events during the defendant's closing address 48 After the trial judge finished delivering that judgment, the defendant tendered various exhibits, the defendant closed his case, counsel addressed, and judgment was reserved. 49 One further event, however, took place to which it will be necessary to return. It took place in the final address of the defendant against the following background. When, before lunch on 27 June 2001, counsel for the defendant made the application which led to the exclusion of Exhibits B, C, M and N, he did so in carefully chosen language. He did not in terms apply for the "reports" to be excluded. He only applied for the "opinions" not to be accepted as evidence and said "The opinions in these reports are not admissible". Indeed, at one point he corrected himself by saying "These reports, the opinions expressed in these reports, are not admissible". If any observer thought that the defendant may have been reserving to himself a right to contend that something other than the opinions in the reports survived the attack on the opinions, that thought received confirmation after lunch. The trial judge dealt with the submission by excluding, not the opinions only, but the totality of the reports. In final address counsel for the defendant contended, according to the trial judge, that he "understood that ruling to relate only to the opinion evidence contained in the reports and sought to rely on parts of Exhibit B as evidence in his case. In part, his submission relied on s 60 of the Evidence Act." The trial judge rejected the defendant's submissions for various reasons which she gave in her judgment of 26 July 2001. She might have given another reason, namely, that the argument rested on an inconsistency. Before lunch, counsel for the defendant had drawn attention to the passage in Exhibit B in which Mr Jamieson set out first the defendant's theory of the accident and then the plaintiff's theory of the accident. The passage was: "The version presented by the witnesses (some evidently independent) involve the westbound Volvo approaching number 8 Station Road on its right, occupying road space close to the centre line, coming to an almost halt. Just as it commenced its turn right into the driveway, the Volvo was impacted on the right rear quarter by an overtaking motorcycle. The alternative version implied that the Volvo had not been close to the centreline but rather had been towards the left, possibly near the southern kerb of Station Road, and commenced either a full right turn towards the driveway, or a U-turn. The resultant impact occurred on the westbound lane when the Volvo was straddling the centreline at an obtuse angle." 50 Before lunch counsel for the defendant said of this passage: "What Mr Jamieson does in this case is to point out that there are two competing theories as to how this accident happened. If your Honour goes to the exhibit itself on page 14 the expert says this, at the top of the page: 'Crash analysis. From the material there appeared to be two basic versions of the crash presented.' Just stopping there, what material? The answer to that is that it's part or all of the material that is referred to in his document, most of which is not proved and most of which is not before your Honour. He goes on to say this: 'The version presented by the witnesses involved a west-bound Volvo, etcetera, occupying the road space.' And then in the next paragraph: 'The alternative version implied that the Volvo, etcetera." How is it that your Honour is able to make any judgment about these competing versions which Mr Jamieson sets forth, it's Mr Jamieson's analysis of what witnesses are saying in statements which are not before your Honour and which witnesses. Which ones is he relying upon? Is he relying on the police officer who isn't called and whose statement is not before your Honour? Is he relying upon some other witness whose statement is not before your Honour? Looking at the document itself it's simply not possible to determine what facts Mr Jamieson relied upon, what facts he weighed and what facts he formed - or what facts formed the basis of his opinion." 51 Though the trial judge did not see the matter in this way, that pre-lunch submission protested too much. A fair reading of the passage in Exhibit B is that the first theory described by Mr Jamieson rested on material which he had quoted on pages 4 and 10-11. On page 4 he quoted from the police "P4 Traffic Collision Report" which was composed by Senior Constable Carney, which listed Mr Norton and Mr Jiminez as witnesses, which no doubt followed an interview with the defendant, and which concluded that the plaintiff was responsible for the accident. That report was in evidence in its own right. On pages 10 and 11 Mr Jamieson quoted at some length from statements made by Senior Constable Carney, the defendant, Mr Jiminez and Mr Norton. Senior Constable Carney's statement concerned his observations of physical features of the scene after the accident, parts of which arguably supported the defendant's theory of the case and parts of which supported the plaintiff's theory according to Mr Jamieson. All of the other three statements remaining in those parts of pages 10 and 11 which had not been rejected on the original tender of the report were favourable to the defendant. It would be tedious to demonstrate by minute textual analysis that every ingredient in the first theory corresponds with what is said in the three eye witness statements quoted on pages 10 and 11, but it is so. These eye witness statements were not in evidence in their own right, and nor was Senior Constable Carney's statement. Though the trial judge's reasons for judgment do not identify precisely which parts of Exhibit B counsel for the defendant was relying on in final address, it is very likely to have been the eye witness reports which on their face were damaging to the plaintiff. To have submitted before lunch that Mr Jamieson's opinions were inadmissible because they were based on material "most of which is not proved and most of which is not before your Honour", and then to have submitted after lunch that in fact that material was before her Honour because only the opinions had been removed from Exhibit B by reason of the ruling just made, was to have advanced inconsistent submissions. This was magnificent, but it was not war.

An evaluation of what happened 52 The course adopted by the trial judge of rejecting four exhibits after initially receiving them, and doing so after the plaintiff had closed his case, must be regarded as a very unusual one. It is a course which could only have been justified if all the objections propounded by counsel for the defendant on 27 June 2001, after the plaintiff's case had closed, had been foreshadowed on tender of each of the four exhibits and, by consent, reserved for argument until after the close of the plaintiff's case. Whether events of that kind took place is a controversial question to be examined below. But putting on one side the possibility that they did, the course adopted was adopted only after the following things had happened.

(a) When Exhibit A was tendered, counsel for the defendant adopted the wholly orthodox course of saying: "probably now would be as good a time as any for me to make my objections" - that is, "now", not after the plaintiff's case closed.

(b) Counsel for the defendant made three objections to specific parts of Exhibit B, all of which succeeded.

(c) Counsel for the defendant objected to Exhibit C only on the basis that it was a reply to Mr Keramidas' report. When the trial judge eventually rejected Exhibit C on 27 June 2001, though she said the fact that it was a review of Mr Keramidas' report made it difficult to assess, the actual ground of rejection was that it suffered the same vice as Exhibit B and Exhibit M: "I suspect it too was founded on the same general evidence as exhibit B and M".

(d) Exhibit M was admitted without any objection at all, either to particular parts or on general grounds.

(e) Exhibit N was admitted without objection, except to one part. The defendant's perception of the balance as being unobjectionable is highlighted by the fact that one objection to a question in Mr Wingrove's evidence in chief was that it did not relate to material included in his report, Exhibit N, which suggests that far from the report being inadmissible, it was the touchstone of admissibility.

(f) There was evidence in chief in which the expert witnesses adhered to all (Mr Schnerring) or parts of their reports or gave further reasons for their conclusions. To a large extent this was not objected to. Extensive cross-examination of the three experts took place based on documents they relied on, observations they made and photographs they had taken or seen. Neither the evidence in chief nor the evidence in cross-examination was objected to or rejected at the time on 27 June 2001 when Exhibits B, C, M and N were rejected. It is difficult to follow this oral evidence without recourse to the diagrams and other parts of the reports to which it frequently refers, and if the reports suffered from vices rendering them inadmissible the oral evidence does as well; yet neither the defendant nor the trial judge saw any incongruity in this outcome. Some attempt was made to contend on appeal that the oral evidence was admissible in its own right, but that is questionable: for example, the first answer of Mr Jamieson quoted in [26] above reveals that his oral evidence was based on the same material as his written. In short, if what happened did not go too far, it did not go far enough. For example, if the trial judge were minded to reject Exhibit M in its totality, something should have been done about that part of Mr Schnerring's evidence in chief in which he adopted the concluding opinion stated in that report and stated that nothing he had learned since his report affected his opinions in it. 53 One reason why the trial judge took the unusual course just described is that the trial itself followed an unusual course. In motor accident cases the plaintiff usually gives evidence first, but here the plaintiff could not give evidence at all. Where possible, in civil cases generally experts who give oral evidence give it last. Often it is not possible, but if this happens, the factual findings which may then arise from the evidence for which the plaintiff contends can be put to the experts as assumptions, and their opinions sought on those assumptions; the factual possibilities for which the defendant may contend can also be put to them, either by the plaintiff or by the defendant, with a view to seeing whether or how far those opinions would alter. Mr Jamieson gave evidence at an unusually early time because he could not give evidence later. The process of putting assumptions in distinct terms to the witnesses in oral evidence or framing the report around assumptions did not happen either with his report or the reports of the other experts. It is to be hoped that the expert reports used in this case do not find their way into the precedent books, because to some extent neither the reports nor any other parts of the witnesses' evidence in chief were characterised by a clear and distinct indication of what it was they were assuming, what it was they had observed for themselves, and what it was they wished to state, on the strength of those assumptions or personal observations, by way of expert opinion. If the plaintiff has suffered an injustice not capable of correction on appeal as a result of what happened at the trial, it was an injustice which was partly self-inflicted. 54 In summary, there were three deficiencies in what the trial judge did. The first relates to the time at which she did it. The second relates to her failure to deal with, or even refer to, the plaintiff's primary argument. The third relates to the basis of and extent of her rejection of the evidence.

The time of the trial judge's ruling 55 The moment when the plaintiff's case closes is one of the most significant moments in a civil trial. 56 If the matter is examined from the point of view, admittedly an unimportant one, of a spectator observing the ebb and flow of a forensic battle, commonly the plaintiff's case appears at its weakest as the time for closing that case draws near. So far as the plaintiff has control over the evidence desirably to be tendered, that evidence will have been tendered. So far as that evidence is testimonial, it is likely that it will have been damaged by the defendant's cross-examination and it is certain that it will not yet have been restored by any admissions or other confirmatory evidence which might emerge from testimony called by the defendant if and when the defendant goes into evidence. 57 If the matter is examined from the point of view of the plaintiff, the decision about when the case should be closed turns on an estimation of whether the evidence tendered up to that point will suffice for victory even if answered, or will suffice if not answered in whole or in part. Once a decision is made to close the case as a result of that assessment, it cannot thereafter be revoked. The plaintiff may make considerable progress in cross-examining the defendant's witnesses, but the defendant may not call any witnesses, or any witnesses who can usefully be cross-examined. The plaintiff can call evidence in answer to the defendant's case, but only if the defendant does advance a case, and the plaintiff can only do this as of right if the answering evidence is truly in rebuttal. If the plaintiff thinks the case in chief needs bolstering, the case in reply is vulnerable to a charge that the plaintiff's case is being split, and the plaintiff will have to appeal to the trial judge for favourable exercise of a discretion to permit the plaintiff to reopen the case. The outcome of that appeal is risky and uncertain. 58 From the point of view of the defendant, the moment when the plaintiff's case is closed makes it necessary to answer particular questions. One question is whether a submission that there is no case to answer should be made. This is a difficult decision, since if the submission fails no evidence can be called by the defendant: Supreme Court Rules Part 34 rule 8; District Court Rules Part 26 rule 8. Even if the defendant decides not to submit that there is no case to answer but does decide to call some evidence, a decision must be made as to whether or not the plaintiff's evidence on particular points is such that inferences arising from it may more confidently be drawn if it is not contradicted by a witness available to the defendant. 59 None of the forensic decisions which the parties may have to make just before and just after the close of the plaintiff's case can be made rationally unless there is some stability and certainty in the evidentiary position at that stage. That is why, as a class, counsel for defendants are rightly rigorous in insisting that counsel for plaintiffs clearly mark the moment when the case for the plaintiff is closed. That is why blithe remarks by counsel for plaintiffs such as "I close my case E and O E", or "I close my case subject to a few small documentary tenders" excite strong reactions from counsel for defendants, and cause them to demand either that the case be closed unconditionally or that the specific document which the plaintiff wishes to reserve liberty to tender is identified with precision. And that is why counsel for defendants are vigilant about the merit of any claim by a plaintiff to have a case in reply as of right. 60 In at least civil cases tried without juries, if one puts aside evidence admitted only conditionally or de bene esse, or evidence admitted subject to relevance, or evidence admitted subject to specific objection, evidence which has been admitted will generally remain admitted however much subsequent events may damage its weight. That is why debates about admissibility take place at the moment a document is tendered or a question is asked. If it were not so, the court and the parties would be confronted by an ever-changing sea in which items of evidence slither about indecisively with questions about ultimate admissibility hanging over their heads. That would lead to even more uncertainty and confusion, in difficult trials, than that which is inevitably generated by conflicting bodies of evidence the weight of which is hard to evaluate. 61 When expert evidence is called early in a party's case, and where it is not in satisfactory form, a dilemma arises. Both of these conditions arose in this trial. At one extreme, counsel for the defendant could have objected to particular parts of the reports and permitted the rest to enter the evidentiary material in the case, trusting to the success of arguments in final address based on the inherent weakness of the reports and to his own skill in cross-examination in destroying whatever modest strength they had. At the other extreme, counsel for the defendant could have objected to the totality of the reports on a variety of formal grounds, hoping that if he succeeded, counsel for the plaintiff would not obtain leave to elicit the evidence in classical style by extracting from the witness in chief in non-leading questions what it was that the witness personally observed, what it was that the witness assumed which he did not personally observe, and what, in the light of that material and the witness's expertise, the witness's opinions were. Alternatively, counsel for the defendant may have hoped that even if counsel for the plaintiff did obtain that leave, the unexpected nature of the forensic crisis would have made it impossible for counsel for the plaintiff to get the evidence out in its most powerful form. 62 The course actually adopted by counsel for the defendant lay between these extremes. He did object to parts of the reports, and so far as he maintained them he was wholly successful. He did not object to the balance, which meant that the reports were marked as exhibits. He did cross-examine the makers of the reports with considerable skill. But he went rather further. He flagged at the very least an ultimate submission that the reports were valueless for various reasons. Yet his cross-examination tended to give to parts of the written reports an oral foothold in the evidence, just as the questions of counsel for the plaintiff in chief had done with other parts. If the alternative approach had been adopted of seeking rulings on the objections at the outset, it would have been necessary to employ the same policy with the evidence in chief of the witnesses so far as it was given orally, by objecting to opinions not based on identifiable observations or assumptions, and by cross-examining in so discriminating a way as to avoid the written parts of the expert reports achieving some status in the oral evidence. As it was the materials before the trial judge had a broken-backed character: the four reports, having been included at one stage, were out by the end, but a significant amount of oral evidence either adopted them or was difficult to follow without them. A further disadvantage of the intermediate course which the defendant adopted was that it deprived the plaintiff of a chance of mending his hand by curing the deficiencies in the reports. Had the vital application to exclude the evidence been made just before the plaintiff closed his case, he could have made documentary tenders as of right and called new witnesses such as Senior Constable Carney as of right. He could even have recalled earlier witnesses - not as of right, but pursuant to leave which would have been easy to obtain if the interests of justice supported the application and if the defendant were not prejudiced: Brown v Petranker (1991) 22 NSWLR 717 at 728. The defendant would have had difficulty in establishing prejudice in view of the constricted nature of his complaints made two days earlier about the expert evidence. The fact that the vital application to exclude the evidence was made just after the plaintiff closed his case meant that he would have had to have pursued the course of seeking leave to reopen his case. The plaintiff did not pursue that course. It is not clear why he did not, but the reason may lie in the fact that it would have been inauspicious and perilous - much more so than the course of seeking leave to recall witnesses before the plaintiff's case had closed. 63 There was another intermediate course which the defendant might have taken; indeed he submitted to this Court that he did take it. That course would have been to object to particular parts of the evidence as each report was tendered, but flag the objections ultimately taken successfully after the plaintiff's case closed, and indicate that if the primary material received into evidence did not match the assumptions on which the experts appeared to be proceeding, then the reports should be excluded. This approach would have required one of several possible steps. One would have been an explicit request to the trial judge not to admit the reports until just before the plaintiff's case closed. This did not occur. Another would have been to request a ruling that the reception of the reports was conditional on the tender of specified primary evidence. This did not occur either. Yet another, and similar, technique would have been to request a ruling that the admissibility of the reports be conditional on the plaintiff's undertaking to tender specific primary evidence. This too did not occur. Another possible step would have been to preserve the right to apply, either just before or just after the plaintiff's case closed, for the evidence which had been admitted to be rejected. It would also have been desirable to couple these techniques with a policy of objection to oral evidence in chief and a policy of self-denial in cross-examination aimed at preventing the oral evidence from remedying the deficiencies of the written. 64 On appeal the defendant in his written submissions did not deal with the proposition that the argument about the admissibility of the exhibits after the plaintiff's case closed took place too late. It had been flagged in the plaintiff's written submissions by a reference to the application having been made at "the heel of the hunt". The defendant submitted: "Whether the reports are excluded on the basis of not being relevant or sufficiently relevant under sections 55, 56 and 135 or merely in the exercise of her Honour's discretion under section 135 does not matter. It is submitted that it was available to her Honour to properly reject the reports … at the end of the appellant's case when most of the primary material provided to the experts and appears to be the basis of the 'competing versions' was not adduced into evidence, thereby leaving no proper factual basis for the expression of any such opinion. To otherwise admit the reports and the opinions into evidence would allow the expression of opinion based on facts not adduced in evidence and not sufficiently identified within the framework of the report to enable her Honour as the trier of fact to be able to identify the factual basis upon which the expression of expert opinion is made. In such circumstances even if the reports were admitted into evidence the weight properly to be given to same would be so little to be of negligible value."

This assumes that it was for the plaintiff after the close of his case to seek to "admit" into evidence documents which had already been admitted, and begs the question of whether it was right for the defendant to seek to have them excluded at that time. 65 In the argument before this Court, which was conducted before a transcript of what happened when Exhibits B and C were admitted early in Mr Jamieson's evidence on 25 June 2001 had been obtained, counsel for the defendant described the background as being that: "the objection taken by [counsel for the defendant at the trial] was first general, and then specific as to certain parts, and her Honour dealt with the specific parts. The general objection was on the basis of the need to prove the underlying facts before they went into evidence, and … the appellant's counsel … conceded the necessity to prove the background facts. And it's on that background that one has a better understanding as to how this case was conducted and why the application was made at the end of the plaintiff's case."

The defendant submitted that the conclusion that that was the background was fortified by the fact that when counsel for the defendant made his successful objection after the close of the plaintiff's case, counsel for the plaintiff did not protest that it was too late to be making the objection. The account advanced to this Court was based on the recollection of junior counsel, who appeared both at the trial and on the appeal, and was passed on by leading counsel who was not the counsel who had led at the trial. 66 A similar position prevailed in the plaintiff's camp: there had been a change of leading counsel but not junior counsel. Leading counsel for the plaintiff on the appeal informed the court that the recollection of junior counsel was that no undertaking was given in relation to proof of primary facts and that the four reports were not admitted subject to any undertaking or condition. 67 These different recollections of junior counsel, offered as they obviously were in good faith, are not necessarily inconsistent. However, the defendant's account of the background, leaving aside for the moment the actual terms of what was said on 25 June 2001 when Exhibits B and C were tendered, does not fully explain the following circumstances: that the trial judge did not say anything about the point which counsel for the defendant was making having been reserved for consideration after the plaintiff's case was closed; that counsel for the defendant did not open his application by making reference to any right he had earlier reserved to do so; that counsel for the plaintiff during the argument which led to the rejection of the four exhibits said that he had not been "aware as to precisely what application [counsel for the defendant] was to make"; that one of the reports went in without any objection; that another report went in with only three paragraphs objected to and no record of any objection; and that a question was objected to on the basis that its subject-matter was not included in that report. On the other hand, the plaintiff's account does not explain why counsel for the plaintiff did not protest about the timing of the objection. 68 The transcript of the argument when Exhibits B and C were tendered was procured by the parties after the close of argument in this Court. It is in large measure quoted at [12]-[24]. It reveals that the recollections of junior counsel were not only advanced in good faith, but have some reliability in the sense that each has arguable support in what was said. The reason why the recollections differ lies in the enigmatic quality of the exchanges near the end. 69 Counsel for the defendant started by objecting to what became Exhibit B by complaining of three specific passages. He then complained about the whole of what became Exhibit C, but on specific grounds. One was the ground that it was a joint report: he said the rules did not allow for joint reports and it was impossible to identify which of the opinions in it were Mr Jamieson's and which were Mr Schnerring's. He also said the report was a report in answer to that of Mr Keramidas, and was inadmissible until Mr Keramidas' report was admitted. That concluded the address of counsel for the defendant in chief on the admissibility of the two reports. After counsel for the plaintiff had addressed, counsel for the defendant advanced an entirely new line of attack, but as initially framed it is not clear that it was an attack on admissibility as distinct from weight. Counsel said: "The difficulty that the plaintiff is confronted with is that if in truth the primary facts are never established upon which Mr Jamieson's first report purports to be based then this whole report will ultimately be of no value , it will fall to the ground, and your Honour knows there's plenty of authority in support of that legal principle. Mr Jamieson is being called in the absence of any real relevant primary facts. Now, that's a course that's entirely open to the plaintiff. My learned friend can call his case any way he wants to, but the risk that he's now facing is that unless the primary factual material is called then this report will have no probative value and there will be nothing for me to reply to." (emphasis added)

The submissions in this vein did not appear to go beyond a warning that ultimately the report might lack weight: they did not warn that an application might be made to have it excluded from evidence. 70 The trial judge then raised the possibility of delaying the tender of the two short passages objected to on page 15 and page 16 of Exhibit B until there was an evidentiary basis for them. Counsel for the defendant expressed agreement with that course - presumably in relation to those two passages. Counsel for the plaintiff appeared to suggest a different course, namely that the two passages on pages 15 and 16 should be admitted, but rejected later if the evidence did not support them. At this point the thinking of the participants in the debate may well have diverged. It is possible that senior counsel for the defendant thought he was reserving the right later to have the evidence, so far as it had been admitted, rejected if the underlying factual assumptions were not made good: that would correspond with the recollection of junior counsel for the defendant. It is possible that the trial judge, though not initially of the view that that course was available, came to the view that it was. And it is possible that while counsel for the plaintiff thought that the two offending passages should be admitted subject to later rejection, he did not contemplate the possibility that once the balance of the material was admitted it would be rejected later: that would correspond with the recollection of junior counsel for the plaintiff. At all events, the trial judge did reject those two passages because she said, in a passage in the main transcript of proceedings which is either ill-expressed or ill-recorded, something was "currently not before the court". But whatever the precise thinking of the participants at the close of the debate, there was not, when the language is objectively construed, any express and clear reservation by counsel for the defendant to himself of liberty to do what he did two days later, namely to apply to have the already admitted evidence rejected. Nor was there any such reservation by the trial judge of liberty to counsel for the defendant to do that. And there was certainly no liberty to do that at a time which could be very prejudicial to the plaintiff, namely after the plaintiff had closed his case. When the trial judge spoke of "how we could delay the tendering of those particular paragraphs of pages 15 and 16", she cannot have been contemplating that there should be a delay until after the close of the plaintiff's case. She certainly did not explicitly say so. When counsel for the plaintiff said "if at a later stage it doesn't live up to the claims then your Honour can make a decision at that time" and when he spoke of there not being a problem about "making something inadmissible down the track or doing whatever your Honour wants to do", he was probably only talking about the paragraphs on pages 15 and 16. But even if he is to be construed as speaking more widely, he cannot have been contemplating this decision or ruling happening after he had closed his client's case. He certainly did not explicitly say so. Whether or not there was something to be said for taking the course of reserving liberty to the defendant to make an application of the kind he made, the only rational time for it to be done was before the plaintiff closed his case, not after. Even if there was merit in permitting the defendant to apply after the plaintiff closed his case, that course could not have been justified in this case without consent and unless liberty had been expressly and clearly reserved. Reservation of liberty to pursue so extraordinary a course would call for bluntly explicit language. That language is absent. 71 Even if the concluding part of the debate on 25 June 2001 about Exhibit B and Exhibit C supports the defendant's position, which it does not, there is nothing equivalent to be found in relation to Exhibit M and Exhibit N. Counsel for the defendant contended that the position for these exhibits was covered by the earlier objection. That inference cannot be drawn in view of the vital importance of the matter, in view of the fact that the transcript records no statement by counsel for the defendant when Exhibit M and Exhibit N were tendered formally renewing his objection and reserving his position, and in view of the fact that Exhibit M was tendered a day after Exhibit B, and Exhibit N was tendered two days after. 72 The defendant in this appeal criticised the plaintiff for failing to have sought leave to reopen his case and call further evidence which might have saved him from his predicament. That criticism does not come well from the party primarily responsible for the plaintiff's predicament. What happened to the plaintiff was so antithetical to the nature of a modern civil trial that the plaintiff cannot be said to have had due process of law, and that condition of things was not negated by the fact that he could have sought an indulgence in the discretionary favour of the court. 73 In short, the trial judge erred in excluding the expert reports at the time she did, at least without receiving or imposing on the defendant as a condition of acceding to his application that the defendant consent to the plaintiff being able to reopen his case as of right, because, in the absence of a clear agreed understanding in advance that she might do that, the plaintiff was in consequence denied a fair trial.

The failure to deal with the plaintiff's primary argument 74 The primary argument advanced by the defendant during the debate on 27 June 2001 was that Mr Jamieson had examined, and relied on, police and telephone statements from eye witnesses (eg the defendant himself, Mr Jiminez, Mr Norton and Mr Carter); and that so far as they were relied on, the opinions which Mr Jamieson rested on the perceptions recorded in those statements were inadmissible since those statements never entered the evidence. Coupled with this argument was the contention that to a large extent Mr Jamieson had failed to indicate what materials he was relying on. The plaintiff's primary argument was that though these statements were referred to, they were not relied on as the basis for Mr Jamieson's opinion. Their role was to lay the basis for the theory of the accident which Mr Jamieson understood the defendant to be contending for, and which he exposed to critical examination by reference to his own theory, the photographs of the road and the vehicles, and descriptions by witnesses of the road and the vehicles. The plaintiff argued in substance: "There are two versions of the accident. One is supported by the driver and various witnesses. The other is supported by the damage to the vehicles and the mark on the western side of the road observed by Mr Nunn. The inferences from the latter material suggest that there are errors in what the witnesses say. But if they do not give evidence, the only evidence will be that which supports the latter theory." If Mr Jamieson had propounded opinions on the assumption that what the eye witnesses said was right, those opinions would lack any foothold if the eye witnesses did not testify. But he did not propound opinions on the basis of what they said was right. He referred to what they said only to illustrate the theory of the accident which competed with his own. His own theory stood on factual assumptions entirely independent of what those witnesses might say. The force of this submission by the plaintiff is highlighted by the tactic which the defendant employed in final address. 75 It will be remembered that having succeeded, in arguments advanced before lunch on 27 June 2001, in getting the trial judge to remove Exhibits B, C, M and N from evidence, counsel for the defendant in final address submitted that he "understood that ruling to relate only to the opinion evidence contained in the reports and sought to rely on parts of Exhibit B as evidence in his case". The defendant submitted that so far as Exhibit B contained quotations from the statements of uncalled eye witnesses (including the defendant) which were favourable to the defendant, they should remain in evidence, and the material should be admitted as evidence of the facts asserted pursuant to s 60 of the Evidence Act 1995. The trial judge rejected the submission. Thus the tactic failed. But the fact that the tactic was employed highlights how the material emanating from the absent witnesses was not relied on by Mr Jamieson to support his opinions. Rather he relied on his opinions to cast doubt on the correctness of the material. He was not assuming the facts stated by the eye witnesses to be true in order to state an opinion. Rather he assumed facts appearing from photographs of physical objects or observed those facts, arrived at an opinion as a result, and considered that that opinion showed that some of the "facts" stated by the eye witnesses were untrue. 76 The trial judge does not record the argument which the plaintiff advanced. She did not deal with it. It does not appear to have made any impact on her mind. The argument was directly inconsistent with the reasoning of the trial judge in rejecting the reports. For example, she dealt with pages 4 and 10-11 of Exhibit B in a particular way. It will be remembered that on page 4 Mr Jamieson quoted part of the police "P4 Traffic Collision Report" - a document which was compiled by Senior Constable Carney, referred to Messrs Norton and Jiminez as witnesses, and no doubt had input from the defendant. It will also be remembered that on pages 10-11 Mr Jamieson quoted from a report by Senior Constable Carney about the physical features of the scene after the accident, and from three eye witness statements, none of which were independently in evidence. The trial judge said: "Much of this report is unobjectionable in that it quotes from the materials used, for instance on pages 4 and pages 10 to 11 where there appear extracts from the police report and from statements of five witnesses and police officers. In that they are quotes only, they may be objectionable because they are out of context and incomplete but the quotes could provide the evidence on which the opinion is based and if the statements were put in evidence the quotes and the opinions attached could not be assessed."

Contrary to what the trial judge apparently thought, the P4 material was in evidence in its own right. Further, the trial judge overlooked the fact that she had already rejected the latter half of page 11, being a quotation from a statement of Mr Nunn, on 25 June 2001, so that the relevant material was not "statements of five witnesses and police officers", but three witnesses and one police officer. But the primary point for present purposes is that the trial judge proceeded on the understanding that Mr Jamieson's "opinion is based" on the material in "the quotes". So to proceed was to overlook what counsel for the plaintiff had pointed out: "the quotes" were only the source of a theory which Mr Jamieson rejected, not the source of a theory which he propounded. 77 The argument advanced by the plaintiff on 27 June 2001 was not only not considered by the trial judge, but was valid. If there were any force in the defendant's contention that the opinions of Mr Jamieson were based on the material he had not clearly identified, that proposition would deserve consideration, but that contention derives no force either from the statements of Senior Constable Carney and the eye witnesses, or any other material supportive of the defendant's theory of the accident, because Mr Jamieson did not agree with that theory.

Errors in the trial judge's reasoning 78 Confidence in the correctness of the trial judge's reasoning rejecting the four exhibits on 27 June 2001 is not increased by the fact that it rested in part, as has been seen, on her criticism of evidence she had already rejected on 25 June 2001 (such as the passage on the last half of page 11 and on page 16 of Exhibit B), her criticism of material she thought was not in evidence but which was (the P4 material) and her misconception of what Mr Jamieson was relying on for his opinions and confusion of it with material he was pointing to as the source of the competing theory. 79 Another problem is that the trial judge exaggerated the difficulties of understanding Mr Jamieson's first report, Exhibit B. In the third last paragraph of her reasons for judgment on that subject, quoted at [46] above, she found various expressions in the report which she placed in quotation marks to be "very general and unspecific". It is proposed to deal with each of these (apart from the last, which was part of a passage already rejected on 25 June 2001) in categories. 80 Had the trial judge grasped the argument of counsel for the defendant, she would have understood that the references to "witnesses", "various witnesses", "some material suggested" and "the witness statements" were all references to the eye witnesses whose statements had been quoted on pages 10 and 11, and would have concluded that a failure to identify them properly, to the extent that pages 10-11 did not do so, did not matter because those materials were not the basis of Mr Jamieson's opinion. 81 A close reading of Exhibit B would have revealed that the "pavement markings noted by police" (Mr Jamieson's actual words were "the pavement marking as noted by the Police") referred to the mark on the road about four inches long in a tear shape, which started shallow at one end, got deeper at the other, looked new, and was observed by Mr Nunn just after the accident. The photographs revealed that that mark was on the western side of the road. It was what is conventionally called a "gouge mark" and what counsel for the defendant in cross-examining Mr Nunn called a "slash mark". That there was such a mark is incontestable, if only because Mr Nunn was not cross-examined on that point. There was also much other evidence of it. It was mentioned frequently in Mr Jamieson's report. It was described in Senior Constable Carney's statement, quoted on page 4, as "a scrape mark … in the westbound lane". Mr Jamieson himself referred to that mark several times, once as identified in a photograph "of impact area showing mark on westbound carriageway" and as a "painted mark on roadway which possibly was the impact area" (page 13). He also referred to "the mark on the westbound side of the carriageway suggesting the motorcycle was on its correct side of the road at the moment of impact." 82 The point is that whatever else can be said in criticism of Mr Jamieson, it was tolerably clear what mark he was talking about. Though to some extent he sourced the mark in material not independently admitted, namely Senior Constable Carney's statement, he also sourced it in a photograph, and Mr Nunn's evidence, together with much other photographic evidence, gave independent support for its existence. 83 The next expression with which the trial judge had difficulty was "noted marks on the eastbound lane". (Mr Jamieson's actual words were: "It was noted that the various other marks noted on the oncoming eastbound lane appeared to be post-impact marks from metal scraping and so on.") It is likely that this is a reference to marks in the eastbound lane described in Senior Constable Carney's report, but it does not matter what the reference was to and it does not matter that the existence of the marks was not independently established: Mr Jamieson did not rely on them to support his theory, and excision of that passage would not have damaged either the intelligibility or the force of Mr Jamieson's reasoning. 84 The next expression which the trial judge found "very general and unspecific" was "However, various physical evidence did not support this". The paragraph in Mr Jamieson's report using that expression is: "It was clear that if one took the witness statements on face value, the driver's version (the Volvo being close to the centreline) should be accepted. However, various physical evidence did not support this. That evidence involved: · the isolated nature of the damage described to the right rear quarter of the Volvo, suggesting an obtuse angle impact, · the mark on the westbound side of the carriageway suggesting the motorcycle was on its correct side of he road at the moment of impact."

That makes it entirely clear what Mr Jamieson was referring to: the damage to the car and the gouge mark. 85 Contrary to the trial judge's view, Mr Jamieson thus made the material he was relying on in forming his opinion about the accident - the facts he was assuming - tolerably clear. But was there sufficient independently admissible evidence of that material to enable Mr Jamieson's opinions to remain the evidence? This was an issue to which little attention was given by trial counsel or the trial judge: it was much more significant on appeal. In effect, the key parts of Mr Jamieson's reasoning, leaving aside his criticisms of the reliability of the eye witnesses whose evidence was never tendered in its own right, and taking into account his knowledge of the general layout of the area, were:

(a) the damage to the right rear quarter of the defendant's car suggested an obtuse angle impact;

(b) if there was a gouge mark on the westbound side of the carriageway and if it had been made during the accident, that suggested that the point of impact was there and that the motorcycle was on the correct side of the road;

(c) the damage to the two vehicles, and the movement of the car after impact, suggested an impact speed as low as 60 kilometres per hour. 86 When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. On the appeal the defendant put no submission suggesting that the test was more onerous for the plaintiff in this case. For present purposes let it be assumed that it is not less onerous. 87 Was there evidence, at the close of the plaintiff's case, which, if accepted, was capable of establishing the truth of the assumptions underlying Mr Jamieson's opinion? 88 The damaged condition of the two vehicles was a matter established by numerous photographs: as to the car, there were seventeen photographs in Exhibit D, twenty-one in Exhibit K and four in Exhibit O. As to the motorcycle, there were nine photographs in Exhibit E, two in Exhibit J, twelve in Exhibit K and two in Exhibit O. (Those two in Exhibit O were part of Mr Jamieson's report, Exhibit B.) When the defendant went into evidence he tendered a further four photographs of the car (Exhibits 2 and 3) and four of the motorcycle (Exhibits 5 and 6). 89 Further, Mr Jamieson personally inspected the site. Mr Dent gave evidence of the condition of the vehicles. Mr Gosling gave evidence of the scene immediately after the accident. Mr Schnerring inspected the motor car and examined photographs of the motorcycle. Mr Wingrove inspected the site. In all this material there was evidence capable of supporting inferences favourable to the factual assumptions on which Mr Jamieson, and indeed the other two experts, were operating. 90 That leaves the gouge mark. It was clear there was a gouge mark. Mr Nunn said there was. He drew a plan indicating it. He was not cross-examined to suggest that there was no gouge mark. The actual cross-examination of him assumed that there was a gouge mark where he said it was but contended that that was all he saw. And there were photographs of it (eg Exhibit L and Exhibit O). When the defendant went into evidence, he tendered a further photograph of the gouge mark (Exhibit 4). It was not clear when the gouge mark was made, but an inference was open, based on Mr Nunn's perception that it was recent, that it was caused by the accident. That inference could also be based on an inference that the police officers who attended the accident marked the gouge mark with yellow paint. That is not an inference which any of the experts in terms drew, though Mr Jamieson in his oral evidence in chief made that assumption. While it is true that there is no testimonial evidence, or admissible hearsay evidence, as to why the yellow paint was placed around the gouge mark, by whom, and when, it is not an unreasonable inference that at the scene of an accident being investigated by the police at which a "new" gouge mark was observed, the investigating police officers would be likely to place a yellow paint mark there. The defendant submitted to this Court: "If the marking on the roadway inside the yellow paint line was created by the police to indicate a point of impact (as is suggested in the appellant's case) there has been no attempt to explain how the contents of the P4 report, in particular the diagram, is inconsistent with same."

This is curiously phrased. There was never any suggestion that the mark "inside" the yellow paint lines was created to indicate a point of impact. In the middle of a long answer and just after he was interrupted by an objection, Mr Jamieson referred to "the physical evidence which comprised the marking on the roadway as presumably marked by investigating police - that's an assumption I made". Before the objection, he had referred twice to the paint on the road. Plainly by the word "marked" he meant the placing of the paint, and plainly by "the marking on the roadway" he meant the gouge mark. If the submission is meant to commence: "If the marking on the roadway inside the yellow paint line, which paint line was created by the police to indicate a point of impact", that is not a proposition which Mr Jamieson in terms advanced or assumed. Mr Jamieson did not rely on the placing of the yellow paint around the gouge mark by the police as a decisive assumption in his reasoning: rather he relied on the existence of the gouge mark itself. When in Exhibit B Mr Jamieson used the words "the pavement marking as noted by the Police", he meant the gouge mark observed by the police, not the yellow paint. It may not be possible to say that the police painted the yellow marking to indicate a point of impact. But the fact that they painted it, if that fact can be inferred, suggests that they thought it had some relevance to the accident. It is true that the contents of the P4 indicate a point of impact on the other side of the centre lines, but the P4 relied on the statements of eye witnesses, including the defendant, and the plaintiff's experts considered that the objective circumstances suggested some error in the perceptions underlying those statements. It is in those reports, which admittedly were excluded, that there can be found a not unpersuasive "attempt to explain" the matter. 91 The defendant's argument that a vital ingredient in Mr Jamieson's reasoning was an assumption that the gouge mark inside the yellow lines indicated the point of impact, and yet there was no evidence that it did, was advanced to this Court but not, so far as appears from the appeal papers, to the trial judge. This gouge mark issue highlights the extent to which there was a concentration before the trial judge on immaterial issues on 27 June 2001. On that day the defendant and the trial judge concentrated on the evidence supporting the theory which Mr Jamieson rejected, not the evidence supporting the theory supported. The gouge mark question also highlights how if the point had been taken in distinct and detailed fashion on 25 June 2001, when Mr Jamieson's reports were tendered and his evidence in chief given, the parties could have concentrated more on how the gouge mark, and the yellow paint, came to be on the road, when and why. Indeed only general criticisms of the reports were made on 25 June 2001, and even when they became more specific on 27 June 2001, no reference was made to the gouge mark. 92 Of course, it was possible that the plaintiff's experts had misread the condition of the vehicles and possible that the gouge mark had been made before the accident. It was also possible that they had misapplied their expertise and reasoned erroneously. But these were matters for the ultimate decision of the trial judge. They were not adequate grounds on which to reject the evidence, particularly after it had already been admitted. 93 A further problem with the trial judge's reasoning turns on the legal test she applied. The trial judge in considering whether to reject the exhibits set out three questions which she said the authorities required to be asked. They were quoted at [44]. She said that the first task was "to assess from the expert reports and from the oral evidence whether [the three experts] had identified the facts they were assuming to be true sufficiently to enable them to be measured against the evidence". However, she confined her analysis to the expert reports, and did not inquire whether the oral evidence had adequate identification of those facts. It follows from her reasoning that she thought the expert reports did not. That conclusion was criticised above at [74]-[77]. 94 All she said about the second question, relating to relevance under s 55, was that the evidence was not relevant. This question did not arise in view of her answer to the first question. 95 She then turned to the third question, which also did not arise in view of her answer to the first question, and excluded the reports. In her judgment of 26 July 2001, she said that her ruling on 27 June 2001 was that the reports "should be excluded pursuant to s 135(a) of the Evidence Act 1995". She also said that expert evidence could be excluded "because it is not relevant or sufficiently relevant under ss 55, 56 and 135" and that in her ruling she was "concerned about the relevance and reliability of the materials used by the experts in the reports". 96 These remarks may rest on a conceptual confusion. Evidence which is arguably to be excluded under s 135 is ex hypothesi evidence which is otherwise admissible, and hence is relevant. Section 55(1) provides: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."

Evidence which is not credible has no probative value at the end of the day, but it may be relevant. That is because in assessing relevance the court has to operate on the basis that the evidence is accepted. However, if evidence, even if accepted, has no probative value, it is irrelevant. 97 The inquiry which the trial judge ought to have carried out in relation to relevance, if she thought it proper to deal with relevance at all as a distinct topic in view of her conclusions about the inadequate identification of assumptions, would have turned on an application of s 55(1) to the circumstances. The inquiry would have to commence by postulating that the evidence was to be accepted, and then examining whether it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. One fact in issue was the point of impact: two of the plaintiff's experts placed it on the left hand side of the centre lines, while the particulars of the Defence suggested the contrary, and the eye witness material on pages 10-11 of Exhibit B, which counsel for the defendant contended remained in the evidence even after the trial judge had excluded Exhibit B, placed it on the right hand side. The reasoning of Mr Jamieson and Mr Schnerring might have been right or it might have been wrong, but it did conclude in the plaintiff's favour on that issue. Accordingly it is hard to see how the trial judge came to conclude that the evidence was irrelevant. Another fact in issue concerned the question whether the path which the defendant intended to pursue was that indicated in Figure 10; if it was, the probabilities of a finding of negligence against the defendant increased. If Mr Jamieson's evidence were accepted, it rendered findings favourable to the plaintiff more likely. Hence the evidence was relevant from that point of view as well. Indeed, counsel for the defendant in his arguments both on 25 June 2001 and on 27 June 2001 did not contend that the evidence was irrelevant, only that it was of no probative value (on 25 June 2001) and inadmissible for non-statement of assumptions or under s 135 (on 27 June 2001). 98 Turning to the trial judge's discussion of s 135(a), she found prejudice to the defendant in the need to tender all the evidence referred to in all the reports; in the risk of unproved assumptions being wrongly given some weight or being put to some unforeseen use; and in the difficulty of dealing with the "very general and unspecific references" in Mr Jamieson's report which was Exhibit B and in equivalent parts of other reports. In her judgment of 26 July 2001 she laid particular stress on the last factor. She said: "One of the concerns I had in rejecting the evidence was the difficult position resulting for the Court and the Defendant in identifying and assessing unspecified evidence on which the reports rely.

She also said: "Even those parts of the evidence which are first hand suffer from the difficulty that the materials set out in the reports are selections only from possibly larger documents. This deprives the documents of their context and makes them difficult to interpret and less reliable." 99 So far as the last type of criticism is concerned, it has been demonstrated above that the "very general and unspecific references" fall into two categories: references to material supporting the theory of the case Mr Jamieson doubted, and references to material supporting the theory which he and Mr Schnerring favoured. It has also been demonstrated that it is reasonably clear what Mr Jamieson was referring to. Even if the references to the material supporting the theory favouring the defendant were obscure, some endeavour could have been made to excise them while retaining the balance of the reports. The other items of prejudice, so far as they differ from that item, lack reality. The defendant was under no obligation to tender anything; if the plaintiff's experts' assumptions remained unproved on the balance of probabilities that would be extremely damaging to the weight of their opinions; and the risk of the material being put to some unforeseen use was curable by appropriate addresses. In short, the trial judge's s 135(a) reasoning is not convincing.

Conclusion on Ground 1 100 In my opinion Ground 1 is made out. 101 On the hearing of the appeal, the plaintiff accepted initially that the only realistic order to be made was an order for a new trial. Later he contended that if one took into account the evidence which the trial judge had admitted and the evidence which she ought not to have rejected, together with the paucity of evidence called by the defendant, there should be a verdict for the plaintiff. That submission must fail. One reason why it must fail is that counsel for the defendant appearing on the appeal forcefully advanced arguments based on an analysis of certain photographs comprising Exhibit L for questioning the validity of Mr Jamieson's opinion as to the probable point of impact. Precisely how powerful those arguments are is difficult to evaluate, because, although the photographs had been available to the defendant, shown to Mr Nunn, marked for identification during his evidence, used in cross-examination of him in some detail, and tendered during Mr Gosling's evidence (ie after Mr Jamieson had left the witness box but before Messrs Schnerring and Wingrove entered it), they were never put to the plaintiff's experts at the trial with a view to obtaining their views on the arguments in question. The fact that the photographs were not put to the experts suggests that the issue of where the point of impact was loomed much larger on appeal than it did at the trial, and more precise criticisms of the expert evidence at the trial might profitably have isolated this as a crucial issue earlier. However this may be, it cannot be concluded on a balance of probabilities that even if the plaintiff's experts are correct in their theory of how the accident happened, the defendant was negligent. That was a real possibility flowing from their theory, but it is appropriate that the facts be properly examined at a new trial conducted in the light of all admissible evidence and with a sound perception of the issues involved. Yet another consideration is that there was some evidence of contributory negligence in the form of speeding. This Court could not easily arrive at a conclusion on that issue, and a new trial would be needed to deal with it. A new trial limited to contributory negligence is highly inappropriate. 102 This Court is obliged not to grant a new trial unless some substantial wrong or miscarriage was occasioned to the plaintiff. The defendant contended in effect that his case was so strong that there was no miscarriage of justice and that a new trial would be futile. He relied on the argument based on the photographs referred to above. As was indicated, the strength of that argument is difficult to estimate. He relied on the lack of direct evidence in relation to the gouge mark, and that point has been dealt with. He pointed to the contradiction between the experts' assumptions as to the point of impact being at the gouge mark and the diagram in the P4, which placed it across the centre lines. However, the P4 was in another respect criticised by Mr Jamieson on reasonable grounds; the persons on whose observations the P4 was based did not enter the witness box; and one of them, the defendant, had a very strong interest of his own to serve in what he said to the police, and a knowledge that the plaintiff was unable to contradict him, at least immediately: as things have turned out, that inability proved permanent. Further, though the P4 was tendered by the plaintiff, if he had not tendered it, he would have had good prospects of preventing the defendant from tendering it by reason of the operation of ss 63, 64, 69(3) and 135 of the Evidence Act. The defendant also pointed to what he said was a contradiction between Mr Jamieson (who said the angle of impact between motorcycle and car was obtuse) and Mr Wingrove (who said it was acute). The trial judge seemed to find this evidence contradictory as well. There was, however, no contradiction. Mr Wingrove said it was not a T-bone collision (ie one in which the angle of impact of motorcycle and car was at or near 90 degrees), but was one with a lower angle of impact. This he called "an acute angle type impact". Mr Jamieson's opinion was not inconsistent with this. Mr Jamieson said the angle of impact was "greater than 45 degrees which defines an obtuse angle impact". 103 The case of the plaintiff, unassisted as it is by his own evidence, may or may not be powerful, but it cannot be said that the outcome of a second trial would inevitably be the same as the first. 104 The trial judge's discussion, in her reasons for judgment of 26 July 2001, of the expert evidence was unsatisfactory. She said: "There is no direct evidence of the accident. Experts called for the Plaintiff estimated the speed of his motorcycle at impact to be between 60-100kph, but their estimates were not based on independent calculations. A yellow marking on the road surrounding a gouge in the bitumen was interpreted as a police marking of the site of some contact with the road by the Volvo or motorcycle. This was one of the principal reasons for the experts' assessment that the impact had occurred on the left hand or 'correct' side of the road. The P4 report, probably adopted by the RTA report prepared by Mr Dent, suggested the collision occurred on the other side of the road. Those reports stated the Plaintiff had crossed the double lines to overtake the Volvo. The other evidence supporting the Plaintiff's case that the collision occurred on the left hand side of the road related to the angle of impact of the motorcycle and the Volvo. Two of the three experts said this was an obtuse angle suggested from the confined area of the damage to the Volvo. The third expert, Mr Wingrove, accepted that the damage to the Volvo may have indicated an acute angle of impact, but he thought the damage to the motorcycle was not necessarily consistent with such an impact. I find this evidence inconclusive and insufficient to discharge the Plaintiff's onus of proof."

She did not, however, say that Mr Wingrove, like Mr Jamieson, fixed the collision on the left hand side of the road. She did not discuss why the experts' opinions were propounded. Since at the time the experts gave evidence in chief counsel for the plaintiff was operating on the assumption that the report or reports of each expert were in evidence, and since substantial written material explaining their positions was withdrawn by reason of the court's ruling after they left the box, it is not surprising that there was no satisfactory discussion of the expert evidence. There is no ground of appeal contending that the trial judge failed to comply with the duty to give reasons. But the reasons which were given reveal that it cannot be assumed that the outcome would have been the same had the ruling excluding the evidence not been made. There was a miscarriage in that the trial judge disabled herself, by an erroneous decision to reject the four exhibits, from considering the totality of the plaintiff's case and understanding the detail of the experts' reasoning. That case was significantly stronger with the reports than without because they contained a much more detailed exposition of the experts' position than their oral evidence in chief.

Other grounds 105 In view of the plaintiff's success in relation to Ground 1, it is not necessary to consider the other grounds of appeal.

2. The verdict and orders of the trial judge in favour of the defendant are set aside.

4. The defendant is to pay the plaintiff's costs of the appeal.

5. The costs of the proceedings in the District Court to date are to be in the discretion of the trial judge conducting the new trial.

6. The defendant is to have a certificate under the Suitors' Fund Act if qualified. 107 PEARLMAN AJA: Introduction On 24 November 1996 the Appellant's motorcycle collided with the Respondent's motor vehicle in Station Road, Albion Park. The Appellant suffered injuries and brought a claim in the District Court alleging that the Respondent caused the collision by his negligence. The quantum of damages was agreed between the parties and the only issue for determination was the question of liability.

108 In a judgment delivered on 26 July 2001, Gamble ADCJ held that the collision did not involve any negligence on the part of the Respondent and her Honour entered a verdict for the Respondent. The Plaintiff now appeals from that decision.

109 It was common ground in the court below and in this Court that, immediately before the collision, the Appellant was riding his motorcycle in a westerly direction along Station Road. The Respondent had also been travelling in a westerly direction along the same road, and, immediately before the collision, the Respondent was in the course of executing a right hand turn into the driveway of No 8 Station Street. The Appellant's motorcycle collided with the Respondent's Volvo at a point in the vicinity of the rear wheel on the driver's side of the Volvo. The grounds of appeal

110 In essence, the Appellant's grounds of appeal are as follows:

(1) The trial judge erred in rejecting the written reports of experts called in the Appellant's case; (2) Whether or not the experts' written reports were admitted in evidence, the trial judge erred in concluding that there was no evidence of negligence on the part of the Respondent. The experts' reports and the course of the trial

111 The Appellant tendered four written expert reports. The first two were those of Mr J R Jamieson, a consultant engineer with Jamieson Foley & Associates Pty Ltd, dated respectively 1 December 1998 and 9 June 2000. According to the transcript of the hearing, objections were taken to the tender of each report, but the transcript available at the hearing in this Court was incomplete as to the precise nature of those objections. Accordingly, the Appellant was directed by Sheller JA, the presiding judge, to furnish after the hearing a more complete transcript. I will return to what is revealed in the fuller transcript in due course, but suffice it to say at this stage that each of these reports was admitted unconditionally and marked as ex B and ex C respectively.

112 Mr F W Schnerring, also a consulting engineer with Jamieson Foley & Associates Pty Ltd, compiled the third report. No objection was taken to its tender, and it was admitted into evidence as ex M.

113 The fourth report was that of Mr C J Wingrove, a transport engineer. According to the transcript, objection was taken to its tender, and, after legal argument, it was admitted into evidence as ex N with pars 5, 6 and 7 struck out.

114 All three experts were called to give evidence in the Appellant's case, and they were extensively cross-examined on their respective reports by Mr Stitt QC, who was appearing on behalf of the Respondent at the time.

115 At the close of the Appellant's case, Mr Stitt made an application to have each of exs B, C, M and N excluded on the ground that the basis for each of the respective opinions in those reports had not been proved on the evidence and that as a consequence the probative value of each of the reports was outweighed by their prejudicial effect.

116 After a short adjournment to consider the application, the learned trial judge delivered an ex tempore judgment in which she exercised her discretion to exclude all four reports pursuant to s 135 of the Evidence Act (NSW) 1995. Section 135 provides as follows: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 117 Her Honour dealt extensively with ex B, finding that many parts of it were not based on evidence extracted in the report or on material identified as having been used but not appended to the report. In particular, her Honour found that two hypothetical versions of how the collision occurred prepared by Mr Jamieson (and to which I refer later) were not based on specified evidence. She went on to identify the same faults with each of the other exhibits, and, on the basis that they each contained essentially unfounded opinion, she rejected each of them as being unfairly prejudicial to the Respondent.

118 The Respondent's case was then presented, which consisted of the tender of a number of photographs, after which counsel addressed, and her Honour reserved her decision. In her reserved judgment, her Honour returned to the question of the admissibility of the four written reports. It appears that she did so in order to deal with a submission of Mr Stitt that the four reports should not be excluded in their entirety, that only the opinion evidence contained in them should be rejected, and that the Respondent should be entitled to rely on other parts of the reports pursuant to s 60 of the Evidence Act. Her Honour rejected this submission, and the four reports remained excluded.

119 In her reserved judgment, her Honour traversed the evidence before her, excluding, as she had earlier ruled, the four expert reports. In particular, she noted the P4 Traffic Collision report, which showed the Volvo turning across double lines and the motorcycle colliding with it on the eastbound, or "wrong", side of the road. She noted also the oral evidence from the experts called by the Appellant, and, in particular, Mr Jamieson's view that the Volvo had commenced its turn into the driveway from somewhere to the driver's left. Ultimately, she made what she described as "findings of fact". She noted the conflicting evidence as to how the collision occurred, namely, that some evidence supported a finding that the impact had occurred on the left hand or "correct" side of the road, and other evidence supported a finding that the collision occurred on the other side of the road. She noted that two of the three experts expressed an opinion that the angle of impact was obtuse, and the third expressed the opinion that it was an acute angle. She also noted the uncertainty of the evidence about the estimated speed of the motorcycle at the impact. Ultimately, her Honour said: "I find this evidence inconclusive and insufficient to discharge the Plaintiff's onus of proof. I am not satisfied that the Defendant did anything to cause the collision between him and the Plaintiff". (RAB p 35 - 36)

120 On behalf of the Appellant, Mr Toner SC submitted that an objection to the admissibility of the totality of the reports should have been taken at the outset, and if successful, presumably no oral evidence from the experts would have been received. But once the oral evidence was received, it made it unsatisfactory to exclude the written reports. He pointed out that each report had been served in time, that the opportunity to cross-examine the experts about them had been fully taken, and that, had the reports remained in evidence, the Respondent could have called for those of the underlying documents which were not tendered and could have led evidence about the contents of the reports, in particular, about the two hypothetical versions of the collision. 121 In his written submissions, Mr Toner also claimed that the discretion under s 135 ought not to have been exercised. Mr Toner relied in this respect on Quick v Stoland (1998) 87 FCR 371, contending that the reasons there advanced by Branson J for concluding that the discretion ought not to have been exercised paralleled the position in this case. However, Mr Bartlett SC, appearing for the Respondent, sought to distinguish Quick v Stoland on the basis that, in that case but not in this case, most of the essential material on which the relevant opinion was based had been in evidence. I agree with this submission. Mr Jamieson compiled a long list of the material that he had examined. Most of it was not in evidence in the proceedings. In particular, the police statement of the eyewitness was not tendered, nor were other statements made to the police, nor was the statement of one of the investigating police officers. Mr Schnerring relied upon the same material, and, in addition, directed his attention to the report of a traffic engineer, Mr Keramidas, which also was not tendered. Mr Wingrove also relied on the same material. 122 A point which illustrates the lack of foundation evidence is the question of the painted yellow mark on the roadway. It had been observed on the roadway by Mr M T Nunn, an off-duty police officer who was a friend of the Appellant and who attended the scene of the collision after it had occurred. The yellow mark was also evident in some of the photographs. Mr Jamieson believed that mark to have been placed there by the police as possibly indicating the impact area, and he used this fact as one of the physical indicators of how the collision occurred. But there was no evidence about who placed it there and for what purpose. 123 The opinions expressed by Mr Jamieson, Mr Schnerring and Mr Wingrove were of little value unless the facts upon which those opinions were based were proved (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at pars 64 - 86). It was clearly open to the learned trial judge to conclude that, in the absence of the material and evidence I have mentioned, the assumed facts that underpinned the respective opinions in the reports had not been proved.

124 Mr Bartlett submitted that no prejudice to the Appellant could have resulted from the course that the trial took, because each of the experts furnished oral evidence as to their respective reconstructions of the collision. Thus, Mr Jamieson explained at length his view as to how the accident happened and in particular asserted that the impact occurred at an obtuse angle. Mr Schnerring agreed with that opinion and Mr Wingrove also dealt with the angle of impact. In particular, some of the oral evidence was directed to specific identifiable parts of the written reports and accordingly, in his submission, those parts were incorporated into the evidence, despite the rejection of the actual reports. Thus, Mr Jamieson specifically adverted to figure 10 depicted in ex B as demonstrating the impact geometry and Mr Schnerring expressly adopted par 2 of his report. The admission of the expert reports

125 At first I had formed the impression that her Honour's discretion had miscarried when she rejected the four expert reports. I felt that Mr Terracini SC, who was then appearing as counsel for the Appellant, had conducted the Appellant's case under the impression that each of the reports had been unconditionally admitted into evidence and that their later rejection after the Appellant's case had closed left the Appellant in a disadvantageous and unfair position. However, the fuller transcript reveals that not to be the case.

126 Mr Stitt had objected to certain parts of ex B and to the whole of ex C on the basis that the latter was simply a rebuttal of the report of another expert which was not in evidence. However, he also couched his objection in broader terms. As to ex B, the transcript reveals that Mr Stitt said: The difficulty the plaintiff is confronted with is that if in truth the primary facts are never established upon which Mr Jamieson's first report purports to be based then this whole report will ultimately be of no value, it will fall to the ground … My learned friend can call his case any way he wants to, but the risk that he's now facing is that unless the primary factual material is called then this report will have no probative value and there will be nothing for me to reply to … (T 25 June 2001 p 3 - extract of legal argument)

127 In response, Mr Terracini said: … if at a later stage it doesn't live up to the claims then your Honour can make a decision at that time but in the meantime you will have Mr Jamieson's evidence … There's no problem under the Evidence Act of ruling something inadmissible later on down the track or doing whatever your Honour wants to do … (T 25 June 2001 p 4 - extract of legal argument)

128 This exchange puts to rest my concern that the Appellant's case was conducted under a misapprehension that there was no likelihood that the expert reports would ultimately be rejected. Mr Stitt outlined that risk in plain terms, and Mr Terracini accepted it. It is true that the submissions were made in relation to ex B, but they were based on general principle and they must be taken to apply equally to all the expert reports. I turn then to consider the evidence contained in the expert reports and given in oral evidence.

129 Two of the expert reports were particularly important so far as regards the critical issue in the case, namely, the question of whether the Respondent was negligent. They were ex B and ex M.

130 In ex B, Mr Jamieson proffered two hypothetical versions of the collision. The first, which he sketched and called "figure 9", was based on statements from witnesses, including an eyewitness. This version described the Volvo as commencing its turn close to the centre line of the roadway and the collision occurring on the eastbound or "wrong" side of the road. The eyewitness was not called to give evidence at the trial and his statement was not in evidence. However, Mr Jamieson concluded that figure 9 was not supported by the physical evidence. Taking into account in particular the obtuse angle of impact, and the yellow paint mark on the roadway, Mr Jamieson adopted an alternative version, which he sketched as "figure 10". This version suggested that the Volvo commenced its turn from the left part of the westbound carriageway or from the kerb on the southern side of the road and that the collision occurred on the westbound or "correct" side of the road.

131 Mr Jamieson did not conclusively adopt either version, but recommended that the evidence of witnesses upon which figure 9 was based "should be tested in the light of the physical evidence which contradicts their statements".

132 Mr Schnerring put forward the following conclusions in his report (ex M): Figures 9 and 10 of Mr Jamieson's report of 1 December 1998 (the reference is to ex B) showed two versions of the crash involving Jason Rhoden … an examination … of the photographs of the damage to the motorcycle strongly supports the version of the crash shown in Figure 10 of Mr Jamieson's report. Damage to the Volvo and to the motorcycle does not support the version of the crash shown in Figure 9 of Mr Jamieson's report.

The damage to the two vehicles involved in the crash supports the view that the Volvo sedan was turning from either the left part of the westbound lane or from the road shoulder on the southern side of the road, and that Jason Rhoden was passing the Volvo near to the centreline but on the correct side of the road at impact. The oral evidence

133 In relation to his opinion as to how the collision occurred, Mr Jamieson made the following statement in giving evidence in chief: That means nearer 90 degrees rather than zero degrees, or should I say, greater than 45 degrees which defines an obtuse angle impact. Combined with the paint mark left on the roadway, it appeared that the Volvo commenced to turn right into a driveway but most relevantly it appeared to turn right not from near the centre line of the road but rather from somewhere to the driver's left as he was proceeding along … (T 25 June 2001 p 15)

134 This evidence was illustrated by figure 10, which showed the "swept path" of the Volvo commencing from the left part of the westbound carriageway. In further evidence in chief, Mr Jamieson explained that figure 10 "was plotted to represent the impact geometry as suggested by the physical damage to the respective vehicles and the mark on the road" (T 25 June 2001 p 17). Mr Jamieson was extensively cross-examined about figure 10 and what it depicted.

135 Mr Jamieson's cross-examination concluded as follows: Q. And is it accurate to say that really the whole of your first report, which is exhibit B, was to set forth on the information which was then available to you, what was in essence two competing theories about the point of impact and the way in which the collision occurred? A. Yes. Yes.

Q. And the reason that you were unable to come to any concluded view in that report was because, as you said, it depends upon which factual version was ultimately accepted? A. And what further physical evidence became available.

Q. So would it be fair to say that your first report, exhibit A (sic) is a report which is to some extent an interim report and a report which merely sets forth competing versions of point of impact and cause of collision? A. I think it goes slightly beyond that, but I couldn't disagree with that general proposition. (T 25 June 2001 p 59 - 60)

136 In giving oral evidence, Mr Schnerring did not repeat in terms the two paragraphs expressing his conclusion that I have quoted above. The only direct reference to them occurred in examination in chief, where he was asked, apparently in reference to the second paragraph - "Do you adhere to paragraph 2 of that report?" He replied: "Yes, I do." (T 25 June 2001 p 82). In cross examination, he was asked whether the account given in the eyewitness statement set out in Mr Jamieson's report was consistent with the damage to the Volvo, and he rejected that proposition. He was also asked if he agreed that the point of impact was at an acute angle, and he rejected that proposition also. Conclusion

137 The trial judge had a discretion to exclude evidence under s 135 of the Evidence Act, and she had a discretion to do so although the evidence had already been admitted. (Peacock v The King (1991) 13 CLR 619 at 634; Reg v Burns (1883) 9 VLR 191 at 195 - 196). Her Honour excluded the evidence in circumstances where it had been foreshadowed early in the trial (before the experts had given oral evidence) that one of the expert reports might later be excluded on the basis that the assumed facts upon which the expert had based his opinion had not been proved. The Appellant's counsel acknowledged that possibility and accepted that her Honour had power to take the course she ultimately did. The fact that this circumstance related to only one of the four reports that were excluded does not alter the position as regards the other three reports. The most important report was ex B, but the submissions made by counsel applied equally to the other three reports. 138 The conclusion that I have reached on this aspect is that her Honour did not err. It was open to her to reject the expert reports in the manner that she did. But it clearly would have been preferable to admit those reports provisionally on the basis that evidence would later be admitted as a foundation for the assumed facts upon which the opinions were based (cf s 57 Evidence Act). This would have made it clear beyond doubt to the parties, especially to the Appellant on whose behalf they were tendered, that the expert reports were at risk of ultimate rejection. 139 Furthermore, in par 121 - 123 I have explained my conclusion as to why it was open to the trial judge to find that the assumed facts upon which the expert opinions had been based were not proved, and hence to exercise her discretion to exclude the expert reports under s 135 of the Evidence Act. 140 Nevertheless, despite the exclusion of the reports, the principal opinions of both Mr Jamieson and Mr Schnerring were given in oral evidence (for whatever their value, in the absence of proved basal facts). Their opinion as to the circumstances of the collision were graphically illustrated in figure 10, which was referred to, especially in the examination in chief and the cross examination of Mr Jamieson. Her Honour had had the opportunity of seeing figure 10, but it could have done no more than assist her Honour in understanding Mr Jamieson's oral evidence as to how the collision occurred. It was not determinative of or different from his opinion, and its exclusion could not have been critical.

141 There was conflicting evidence about how the collision occurred, about whether the angle of impact was obtuse or acute, and about the speed of the motorcycle. Furthermore, Mr Jamieson had made it plain in giving his oral evidence that his opinion was subject to confirmation on the facts as proved. It was her Honour's duty to determine whether the evidence, taken as a whole, demonstrated, on the balance of probabilities, negligence on the part of the Respondent. She discharged that duty and her decision should not be disturbed. 142 For these reasons, I would dismiss the appeal with costs.

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