Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177 - QSC 2017 case summary — Zoe

[37]

[20] Any observations or directions I make on this matter are to assist the parties to formulate issues which their respective experts will address. The earlier direction which I made for the parties to attempt to agree on the issues to which expert opinion is to be directed is a common order made in the context of case management. It is intended to avoid the problems which arises when Expert A does not address certain issues which Expert B is asked to address by another party. Having respective experts address different issues tends to increase costs and delay. The opinions of experts, and their expert reports, are like ships passing in the night. Having experts address the same issues avoids the problems associated with Expert A not being required to address certain issues formulated by the other party until trial, sometimes in the course of cross-examination, at which point it sometimes emerges that Expert A and Expert B agree on certain issues.

[21] Having experts in the same field address agreed issues does not prevent a party from asking an expert briefed by it to address additional issues, if this proves necessary. It does not prevent a party from cross-examining the other side's expert about issues which have not been agreed between the parties, being issues to which expert opinion may be directed. Whilst these courses remain open to the parties, the costs associated with them should be avoided, if possible, by having experts in the same field address the same issues.

[22] Having the parties agree, if possible, on the issues to which expert opinion is to be directed also seeks to avoid problems which may arise at trial if an expert has been asked to address a false issue or non-issue, sometimes at great cost, with the result that substantial parts of an expert report are unnecessary or ruled inadmissible.

[23] The duty of an expert is to assist the Court in carrying out its duty, irrespective of by which party the experts has been engaged.[1] The Court's duty is to determine the real issues in dispute expeditiously and at a minimum of expense.

[38]

[24] The parties' differing formulation of the issues to which expert opinion should be directed, and their submissions, may appear to present the Court with a choice between having experts in the same field address a very general question or a series of specific questions. However, there is nothing wrong in principle with having expert opinion directed to both a general issue and specific issues, provided they are relevant issues to which expert opinion might appropriately be given.

[25] It is essential to recall that the determination of whether the embankment and its alleged breach led to the deaths of 12 people, as outlined in the particulars to the defendants' pleading, is a matter for the tribunal of fact, not the experts, to decide. Still, the tribunal of fact at the trial will be assisted by expert evidence in determining that issue. If the experts are asked a general question, of the kind proposed by the plaintiffs, then any evidence they give in addressing that issue and advancing an expert opinion will need to comply with the rules of evidence, including exposing the process of reasoning and the facts and assumptions upon which any opinion is based. In answering a general question an expert may address a series of subsidiary issues which explain the experts' process of reasoning.

[26] Accordingly, I see no objection in principle to the experts being asked to address one or two general questions, appropriately formulated, which are broadly reflective of the sting of the imputations and the essence of the defences of truth which rest on the general proposition that the collapse of the embankment led to a surge in the floodwaters and the loss of 12 lives. Nor do I see any objection to the experts being asked to address more specific questions which reflect the essential components of paragraph 1(h) of the defendants' particulars of truth. This is because, as the defendants' submissions note, it is for the defendants to prove their truth defence, as particularised. Accordingly, it is appropriate that expert opinion be directed, to the extent that admissible evidence may be given by an expert, to the general issue raised by the truth pleas and the components of paragraph 1(h) of the relevant particulars.

[40]

[27] In formulating issues to which expert opinion is to be directed, the parties have sensibly avoided generating a multiplicity of questions based upon the truth of specific imputations. However, each publication is different, as are the imputations which must be defended. For example, Imputation 18(a) requires the defendants to prove the substantial truth of an imputation to the effect that the plaintiffs caused the death of 12 people when the embankment "burst in two places, resulting in lethal waves of millions of tons of water flooding into and devastating the rural town of Grantham". Imputation 71(b) requires the plaintiffs to prove the substantial truth of the imputation that the embankment "burst and caused a tsunami which killed people in the Grantham flood disaster". Imputation 83(a) requires the defendants to prove that the embankment burst "causing a wall of water to surge through Grantham". These are a few examples.

[28] The present point is that it may be convenient for the experts to address the nature and extent of any "surge" in the floodwaters which caused devastation and loss of lives in Grantham. Their evidence will allow the tribunal of fact to decide whether there was "a surge in the floodwaters" (to quote paragraph 141(a)(iv) in relation to Imputation 15(b)) or "a significant surge in the downstream floodwaters" (to quote paragraph 141(a)(v)(2) in respect of certain meanings pleaded in paragraph 18 and other imputations). Ultimately, it will be for the tribunal of fact to determine, if the matters contained in particulars 1(h) are proved, whether they prove the substantial truth of specific imputations.

[29] I approach the matter on the basis that the defendants' plea about a significant surge in the floodwaters, as particularised, concerns a surge that was experienced in the town of Grantham which resulted in the rapid destruction or inundation of objects, including buildings in its path, and which caused the death of 12 people who were trapped in, or washed from homes or vehicles, or otherwise caught in the path of the surge.

[41]

[30] It is important for the parties and the Court to address at this stage, lest there be any misunderstanding, the point raised in the defendants' submissions that the issue is not with the "flooding of Grantham", but the additional impact upon the flood event by the collapse of the levee. The plaintiffs contend that the sting of the imputations is that the embankment "caused the flood". That is not quite right, or at least is not clear. The sting of the imputations is that the embankment and its breach caused a particular kind of flood (variously described as a "lethal wave", a "tsunami" or a "wall of water"). The imputations do not suggest that the town of Grantham was otherwise unaffected by flooding when this distinct event occurred.

[31] As I apprehended it, the plaintiffs' imputations are not to the general effect that a breach in the embankment caused flooding in the town of Grantham. It seems to be assumed in the plaintiffs' reply that Grantham was the subject of flooding, irrespective of the operation or breach of the embankment. I apprehend that the sting of the imputations is not about the flooding of Grantham, or even, in a general sense, the role which the embankment played. It is more about the additional effect of the release of waters contained by the embankment upon flooding in the town of Grantham, and specifically at the locations in which 12 people died. More precisely, it is whether the additional effect was in the form of a significant surge in existing floodwaters.

[32] As I understand the defendants' pleading, they appreciate that it is not sufficient for them to prove that the release of water after the embankment was breached led to a steady increase in the height of existing flooding in the town of Grantham. In seeking to prove the substantial truth of a variety of imputations of which I have given three examples, the defendants seek to prove that objects in the path of the waters that were released as a result of a rapid breach were rapidly destroyed or inundated by "a surge in the height (of between one and two metres), mass and velocity of the existing floodwaters".

[33] This is the essence of the truth defence and the principal matter to which expert opinion should be directed.

[34] The relevant area of expert opinion is hydrology. The expert opinion depends upon assumptions being made by the experts about the alleged breach in the embankment, and the nature and timing of that breach being proven by the defendants in evidence.

[42]

[35] I am not familiar with the anticipated lay evidence to be called by the parties or the factual assumptions which hydrologists will be asked to make in formulating expert opinions. I should note that I have not read any reports of the Commission of Inquiry into the Grantham floods. Any such findings do not bind the tribunal of fact in this case. In any event, I have only a general recollection of some media coverage that occurred when the Commission of Inquiry into the Grantham floods released its report.

[36] If the parties wish, I will read a précis of evidence of anticipated lay witnesses to better understand the anticipated state of the evidence from lay witnesses in this case about the nature and timing of the breach of the embankment. Presently I proceed on the basis of the pleadings. As noted, the defendants propose to prove that the embankment suffered a rapid breach in around two to four places along its length at or about 4.00 pm, releasing a torrent of water downstream.

[37] In reply, the plaintiffs plead that the true facts are that the breach of the embankment did not lead to a surge in the floodwaters, and in consequence the loss of lives because:

The collapse or failure of the quarry embankment resulted in water filling a quarry pit situated next to the quarry embankment;

The quarry pit absorbed floodwater and in fact operated to delay the flood;

The water that engulfed the town of Grantham on 10 January 2011 would have occurred regardless of the existence of the quarry or the quarry embankment by reason of the sheer magnitude of the water which fell on that day;

The collapse or breach or erosion of the quarry embankment did not cause or materially contribute to the flooding of Grantham; and

The existence of the quarry embankment did not have a material impact on the damage caused by the flooding at Grantham and did not cause the loss of lives.

[38] The plaintiffs' further amended reply filed 21 March 2017 does not particularise whether the breach in the quarry embankment occurred at or about 4.00 pm, or whether the breach was a rapid one in around two to four places along its length. However, I apprehend from the assumptions which the plaintiffs propose for the purpose of expert opinion that different scenarios are contemplated including:

Early/Slow Breach - the breach started shortly after commencement of overtopping and the embankment took about 15 to 20 minutes to erode;

Late/Slow Breach - the breach started slightly later in the flood and eroded completely within 1 minute.

[39] If, as I apprehended, the parties do not agree about the nature and timing of the breach or breaches in the embankment, then it will be necessary for the relevant experts to give opinions based upon different scenarios. Subject to further submissions and assistance about what the evidence is expected to be concerning the process and timing of breach, it seems appropriate that the experts address the matter on the basis of different scenarios.

[40] Ideally, experts would express their final opinions after the relevant lay evidence is given at trial, and it may prove necessary for the experts to revise any opinion given in a report in the light of evidence which emerges at the trial. However, it will assist pre-trial preparation and the resolution of the matter if experts consider issues which are the proper subject for their expert opinion on the basis of either agreed facts (to the extent the facts can be agreed by the parties) or on the basis of different factual scenarios.

[46]

[48] The purpose of the foreshadowed expert opinion is to enable the tribunal of fact to decide whether the defendants have established the substantial truth of a variety of imputations. It is to assist the tribunal of fact to make findings of fact. As earlier indicated, I see no objection in principle to the experts being asked one or two fairly general questions, and being required in accordance with the laws of evidence to explain the process of reasoning, including assumptions made, in reaching a particular opinion. In doing so, it is likely that any experts will formulate and address a number of subsidiary issues. In addition, and having regard to the manner in which the defence has been formulated, it seems appropriate for the experts to address certain issues which form part of that specific defence. The essential elements of that defence, as particularised in subparagraph 1(h), may be stated as follows:

The embankment caused floodwater to back up behind it;

The build-up of floodwater caused the embankment to suffer a rapid breach in around two to four places along its length at around 4.00 pm;

The breach or breaches released a torrent of water downstream towards the town of Grantham;

A surge in the height (of between one and two metres), mass and velocity of the existing floodwaters occurred;

This surge (and not some different and more graduated increase in the existing floodwaters) resulted in the rapid destruction or inundation of objects, including homes and vehicles, in its path resulting in the death of 12 people.

[49] Element 1 does not appear to be disputed. The second element seems to be disputed and issues seemingly arise as to the timing and process by which the embankment was breached, including when the breach started, the number of breaches and the period which it took for the embankment to erode. Similarly as to the third element, the manner in which water flowed after the embankment was breached appears to be in dispute. The fourth element would seem to be critical, particularly in the light of the reply which alleges that after the embankment failed, water filled a quarry pit next to the embankment and the quarry pit absorbed floodwater and delayed the flood. In any event, the existence and size of any "surge" after the waters left the vicinity of the quarry is in dispute. More importantly, whether the waters which were released produced a surge having a height of between one and two metres in the town of Grantham is in dispute. Finally, there seems no dispute that extreme flooding in the town of Grantham caused the death of 12 people.

[53]

[53] The questions proposed above address, to some extent, questions of causation, namely whether the existence and then breach of the embankment "caused or materially contributed"[2] or simply caused (along with other causes) the rapid destruction or inundation of objects, including buildings and vehicles, in the town of Grantham and the deaths of 12 people. They do not necessarily address the issue of causation as that concept is known in the law. It is unnecessary to essay principles of causation or the fact that in some legal contexts the "but for" test is an inadequate test of causation. In the context of factual causation, something may be regarded as "a cause" of a consequence if it played a part, perhaps only a relatively minor part, in an outcome. In the present context, the existence and breach of the embankment may be said to have played a part in the flooding of Grantham. Both parties appear to accept that it did. The defendants' case is that it caused a surge in the existing floodwaters of between one and two metres to hit the town with devastating consequences. The plaintiffs' case in reply is that this did not occur and, in fact, after the embankment was breached the quarry pit operated to delay the flood.

[54] That said, proof of causation as an element of the defence would appear to require the defendants to prove that the existence and then breach of the embankment caused the rapid destruction and inundation of objects, including houses and vehicles, in Grantham, whereas such rapid destruction and inundation, and consequential deaths, would not have occurred but for the embankment's existence. Paragraph 1(h) of the particulars asserts this in its use of the words "but for".

[55] This aspect of causation is disputed by the plaintiffs who plead that the water that engulfed the town of Grantham would have occurred regardless of the existence of the quarry or the quarry embankment by reason of the sheer magnitude of the water which fell on that day.

[56] The tribunal of fact will be required to determine this causal question which might be formulated as follows:

[63]

[58] The plaintiffs' proposed assumptions include a "no breach" scenario which asks the experts to assume that the embankment remained fully intact throughout the flood.

[59] I am not sure of the purpose of this assumption or scenario. It seems to be accepted that the embankment did in fact breach, although not necessarily in the manner particularised in paragraph 1(h) or at the time alleged.

[60] I do not rule out the possibility that this scenario may be relevant in some context. Some of the imputations relate to the construction of the embankment and whether it required and obtained necessary approvals. It may be that there is a scenario along the lines that if the construction of the embankment had been the subject of approval and been constructed in accordance with that approval, then the embankment, as constructed, would not have breached. However, as presently advised, this does not appear to be a real issue. If, however, it is then it may be necessary to include a "no breach" scenario and require experts to address the factual scenario of the embankment being constructed but not breaching. It may be that I made a wrong assumption and there is evidence available at trial that the embankment did not in fact breach. I seek the parties' clarification about the "no breach" scenario.

[61] Presently the relevant causal question centres on the existence of the embankment, as constructed. Some attention may need to be given to what assumptions experts are required to make about the presence of some form of pre-existing embankment or land form which did not require approval. The causal question may need to concentrate upon the embankment to the extent that it was constructed after a certain date without approval. In this sense the imputations and proof of their truth may focus upon an unapproved increase in the height of an embankment and not the complete embankment, as constructed. I have not addressed the issues of causation with an eye to such complexities.

[62] The essential causal issue which arises by reason of paragraph 141(a)(v)3[3] of the defence and subparagraph 1(h) of the particulars is the likely course of events had the embankment not been constructed. The issue concerns the past hypothetical fact of what would have occurred on 10 January 2011 if the embankment had not been constructed. This seems to be an appropriate matter for a separate specific question for suitably qualified experts.

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