Rigby v Shellharbour City Council

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

20724/01 RHIANNON RIGBY BY HER TUTOR CAROLE LYNNE RIGBY v SHELLHARBOUR CITY COUNCIL & ANOR

JUDGMENT ( On admissibility of evidence) 1 HIS HONOUR: Objection has been taken to a number of documents contained in a folder relating to liability, tendered by the plaintiff.

2 The folder consists of 4 sections, described as follows:

B: Death of the late James Michael Byrne C: Council of the Shire of Shellharbour E: Expert's Reports S: Southlake BMX Club Inc.

3 Objection is taken, firstly, to the material in section B, relating to the death of the late Mr Byrne, on the grounds of (a) relevance and (b) that much, if not all, of the material is hearsay within the provisions of s 59 of the Evidence Act 1995.

4 In relation to this latter aspect, the evidence is tendered on the basis that it is admissible under ss 63 and/or 64 of the Act. In both cases, notice is required pursuant to s 67, and the time for giving notice is fixed by the Supreme Court Rules Pt 36 r 13D whilst s 68 provides for objections to be notified.

5 I am informed that, although notice of a kind was given pursuant to s 67, such notice was out of time, but the defendants have given notice of objection pursuant to s 68, and it is not pressed that the defendants will suffer any unfair prejudice arising out of the late service of the notices under s 67. I am therefore satisfied that it is appropriate to admit the material, provided that I am satisfied it is relevant.

6 As to relevance, objection is taken on the ground that Mr Byrne's death resulted from a different accident at a different jump, or hump, in the course. There is a dispute as to whether he was wearing a helmet, although the reports seem to indicate that he was wearing a helmet which was not securely fastened, so that it fell off before he hit the ground. It is not suggested that his accident occurred in the same way as the plaintiff's accident.

7 I am satisfied that, generally speaking, the material is admissible on the issue of foreseeability, notwithstanding the differences between the plaintiff's accident and that of Mr Byrne. It is evidence that accidents could, and in fact did, occur at the BMX track of the general nature of that which befell the plaintiff. 8 However the report of the engineer, Mr Moir, relating to Mr Byrne's accident, was not produced until after the plaintiff's accident occurred, so that it could not provide any form of notice to the defendants prior to, or relevant to, preventing the plaintiff's accident, and so has not been shown to be relevant, as a whole, although parts of it, insofar as it describes the location and so on, may be relevant. If such material becomes relevant, the evidence can be given at a later stage.

9 The pleadings in the proceedings brought by Mr Byrne's widow are totally irrelevant and will be excluded. The newspaper report is "second-hand" hearsay and, therefore, does not come within the terms of ss 63 or 64, and is not admissible.

10 It was also submitted that the whole of the material should be excluded pursuant to ss 135 and/or 136 of the Act. In my view, having regard to the basis on which I propose to admit the general evidence relating to the death of Mr Byrne, I am not satisfied that it is unfairly prejudicial to the defendants, nor is it misleading or confusing, and it will not lead to any undue waste of time. I, therefore, decline to exercise my discretion to exclude it under s 135.

11 I have already indicated that I regard it as relevant only on the issue of foreseeability. I do not anticipate that it can be shown to be relevant on any other basis, but as there is no jury, it is not necessary to make a formal ruling at this stage, pursuant to s 136, limiting the use to which such evidence may be put.

12 In section B documents 1 and 2 are admitted, 2A is rejected, 3 to 13 are admitted, there is no 14, 15 is rejected except for annexure E to the affidavit, 16 to 20 are rejected. 13 I turn now to consider the Expert's Reports of Mr Moir dated 27 July 1999 and 16 September 2003 in section E. The objection is on the ground that they do not sufficiently comply with the principles relating to the admissibility of expert evidence detailed in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305, 52 NSWLR 705.

14 In that case, commencing at para [59], Heydon JA reviewed the cases which emphasise the need for the expert, provided he is sufficiently qualified in a field of specialised knowledge, to furnish the tribunal of fact with the necessary scientific criteria and his process of reasoning for testing the accuracy of his conclusions, so as to enable that tribunal to form its own independent judgment by the application of such criteria to the facts proved in evidence. His Honour referred to a number of cases including Davey v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39 - 40, quoted at length in para [59] of the judgment.

15 His Honour summarised the relevant principles at para [85], saying in effect that for expert opinion evidence to be admissible it must satisfy the following conditions: (1) it must be agreed or demonstrated that there is a field of specialised knowledge, (2) there must be an identified aspect of that field in which the witness has, by specialised training, study or experience, become an expert, (3) the opinion must be wholly or substantially based on the witness' expert knowledge, (4) so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, (5) so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way, (6) it must be established that the facts on which the opinion is based form a proper foundation for it; that is to say, the opinion of the expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached.

16 To put this last point another way, the expert's opinion must EXPLAIN how the field of specialised knowledge, in which the witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded.

17 His Honour went on to point out that unless these matters are made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge, or on a combination of speculation, inference, personal and second-hand views as to credibility of the relevant witness, or a process of reasoning which goes well beyond the field of expertise. Unless the reasoning process is exposed, the opinion is, strictly speaking, not admissible and, so far as admissible, is of diminished weight. 18 His Honour went on to quote with approval what was said by the Full Court of the Federal Court in Ocean Marine Mutual Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 at [23] as follows: "The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge".

19 Provided these matters are contained in the expert's report or evidence, they do not have to be stated in any particular order, so there is no objection to stating the conclusions before stating the reasoning which leads to such conclusions.

20 In the present case, objection is taken, firstly, to Mr Moir's qualifications. 21 Generally speaking, matters (1) and (2) above may be taken together and the "specialist field" of the so-called "expert" must not be construed unreasonably narrowly. For example, in R v Rose [2002] NSWCCA 455, 55 NSWLR 701, where the issue was whether wheel dust on the appellant's car came from the road leading to the scene where the body was found, the evidence of a geologist was held admissible when, although he had no experience of dust samples specifically, he did have extensive knowledge of the minerals within the samples.

22 There are matters in his CV which indicate he has at least some expertise in investigating cycling and motorcycle accidents, the investigation of dynamic forces and deceleration and the effectiveness of helmets in such situations, and the efficacy of warning signs and messages. There maybe some differences between ordinary bicycles and motorcycles, on the one hand, and BMX bikes, on the other, but I would infer, in the absence of evidence to the contrary, that there are some principles of dynamics and such matters which would be common to all two-wheel vehicles.

23 However, the final ruling on his qualifications will be deferred until he has been cross-examined. Prima facie, he would appear to be capable of giving evidence of the dynamics of someone riding a two-wheeled vehicle over a bump, and the effectiveness of helmets in such situations.

24 Whether the platform overlooking the airport, or the track itself, would be an allurement for children is, I am satisfied, not a matter for expert opinion from an engineer, or anyone else, but is a matter for the tribunal of fact, having regard to its own knowledge of the human condition.

25 Similarly, the availability of fencing and the type of fencing available hardly seems to me to be a field of expertise for an engineer, although the cost of different types of fencing may well be an area of expertise.

26 Turning to his actual report of 27 July 1999, paragraphs 1.1, 1.2, 1.3 and 1.4 do not appear to be matters of expert opinion. Paragraphs 1.3 and 1.4 appear to be merely matters of his own observation, which evidence, of course, he could give, although it is not an expert opinion. As regards 1.5, he does express opinions, without reasons, and the issue will be whether those reasons are expressed later in his report.

27 Paragraph 4 sets out the factual basis on which he based his report, some of which he observed by himself; some of which is based on the observations of others. It will be necessary for those matters not based on his own observations to be proved by other evidence.

28 Paragraph 5 is merely his own factual description of the track, and is clearly admissible.

29 Paragraph 6.3 expresses an opinion, but without any reasoning. It may, however, be a matter of common experience, and it is not necessary to finally rule on that at this stage.

30 Paragraph 6.4 and the third paragraph of paragraph 6.5 are objectionable because the reasoning on which they are based is not exposed. In particular, although he refers to the correct technique, he does not state what that correct technique is, or how he is aware of it. Nor does he say on what basis he forms the opinion that a novice rider "would not intuitively adopt the appropriate technique".

31 He seems to have assumed that the plaintiff was not wearing a full-faced crash helmet, but does not distinguish such a helmet from an ordinary helmet, nor explain why the differences are significant.

32 He then goes on to say that it is essential that a special BMX bike is used. Apparently the plaintiff was using a type of mountain bike and he does not set out the relevant differences between the two types of bike or why such differences are significant.

33 The second last paragraph of 6.6 seems to suggest an application of the process of reasoning commonly referred to as "res ipsa loquitur", and he then goes on to say that it is not known to what extent the plaintiff's bike conformed with track riding safety requirements. If he does not know, I fail to see how he can say that it failed to comply with track riding safety requirements. Nor does he specify what those track riding safety requirements are.

34 Paragraph 6.7, subparagraph (a), is irrelevant, as the plaintiff did not fall off the steep sides at the top of the starting pad. In subparagraph (b) the part in brackets is clearly irrelevant. In subparagraph (c) the reference to a "potential conflict with other riders" would appear to be irrelevant, because there were no other riders involved with the plaintiff's accident. The rest of subparagraph (c) merely seems to be saying that, if the person cannot go on to the track, such a person cannot be injured on the track.

35 Paragraph 6.7 (d) seems to be merely a repetition of paragraph 6.4. As to (e), if the plaintiff was riding a BMX bike, it would appear to be irrelevant. As to (f), the "normal safety requirements" are not specified. These may be a matter of specialised knowledge, or they may not.

36 This problem is continued in paragraph 6.8, where he talks about the construction and maintenance of the track being "below standard", but he fails to indicate what the standard is. Moreover, the paragraph appears to be directed largely to other aspects of the track, as appears from the following paragraph, where he talks of some of the mounds. The only mound relevant in this case is the mound where the plaintiff met her injuries.

37 Paragraph 6.9 does not express specialist engineering opinions.

38 Then, in paragraph 7.1, he refers to "generalised standards for a BMX track", but he does not specify what those standards are, or where they can be found. Accordingly, the Court is not in a position to measure the alleged non-compliance with them.

39 Paragraph 7.2 (d) refers to bicycles and their riders passing scrutineers before being allowed on the track, but he does not specify whether this is a reference to checking their bikes, their helmets or their previous experience.

40 Then, in his later report of 16 September 2003, he generally describes fencing found at other parts of the complex, and warnings. These are matters of observation, and can be proved. I might add, they were also observed by myself on yesterday's view.

41 Similarly, the Penrith Panthers' track at St Marys is a matter of observation. The relevance of it may be a matter for future argument.

42 In view of these deficiencies in the report, it seems to me that the appropriate course, at this stage, is to reject the report. I will allow evidence to be given in accordance with those parts of it containing his observations of the scene, and subject to him being cross-examined as to there being a specialised field of knowledge, and his training, study or experience of that specialised field, to allow evidence of opinions which are substantially in accordance with such report, provided his reasoning is exposed and it is shown that such reasoning is based on his specialised knowledge. If this is not done, the opinions will carry no weight and will be disregarded.

43 For the reasons I have already given, I reject his report relating to the death of Mr Byrne. The documents rejected from section B of the folder will be marked for identification 1, and Mr Moir's reports from section E marked for identification 2.

Last Modified: 10/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.