JUDGMENT No. 397 / && CATCHWORDS EVIDENCE - admissibility of witnesses' opinion re cause of motor vehicle accident - whether evidence admissible as that of an expert EVIDENCE - effect of wrongful admission thereof - discretion of appellate court to refuse to order a new trial due to insignificance of such evidence Clark v. Ryan (1960) 103 CLR 486 Sweeney v. Boulton (1984) 2 MVR 124 Jones v. Dunkel (1959) 101 CLR 298 West v. Government Insurance Office of NSW (1981) 148 CLR 62 On Appeal from the Supreme Court of the Australian Capital Territory COMMONWEALTH OF AUSTRALIA Ve CAROLYN JOAN FLYNN as widow of the late LEONARD THOMAS FLYNN A.C.T. No. G87 of 1987 Coram: Forster, Gallop and Spender JJ. Date: 27 July 1988 Canberra. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G87 of 1987 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: CAROLYN JOAN FLYNN as widow of the late LEONARD THOMAS FLYNN Respondent ORDER Judges Making Order Forster, Gallop and Spender JJ. Date of Order 27 July 1988 Canberra. Where Made THE COURT ORDERS THAT: (1) The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G87 of 1987 DISTRICT REGISTRY ee ee GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: CAROLYN JOAN FLYNN as widow of the late LEONARD THOMAS FLYNN Respondent Coram: Forster, Gallop and Spender JJ. Date: 27 July 1988 REASONS FOR JUDGMENT THE COURT: The unsuccessful defendant in an action for damages under the Compensation (Fatal Injuries) Ordinance 1968 has appealed against the judgment for the plaintiff in the sum of $238,589 in the Supreme Court of the Australian Capital Territory. The claim was brought by the plaintiff on behalf of herself and the two infant children of the deceased Leonard Thomas Flynn. The trial of the action was heard on 19, 20 and 21 August 1987 and the judgment of the Court (Miles C.J.) was delivered on 13 November 1987. On the hearing of the appeal the only grounds of appeal argued on behalf of the appellant were that the learned trial judge erred in admitting evidence from 2. Sergeant Brown as to the conclusions which he had drawn from tyre marks on the roadway about the likely path of the vehicle which had made them, and further, that his Honour erred in his ultimate findings of fact about the cause of the subject accident. The trial judge found that the deceased died at about 10.35 pm on Friday, i1 June 1982 from brain injury accidentally sustained on 4 June 1982 in Lathlain Street, Belconnen, at a point approximately 150 metres south of Luxton Street. The accident occurred at about 12.30 am on Friday, 4 June 1982. Police attended at the scene and included Sergeant Geoffrey Graham Brown, whose evidence was the subject of the first ground of appeal. Sergeant Brown gave detailed evidence of his investigations and observations of the scene of the accident from the time of his arrival at about 12.50 am. He was asked in relation to a particular tyre mark whether he was able to determine from which wheel of the deceased's vehicle that tyre mark had come. Counsel for the defendant objected to the admissibility of the evidence which the question was designed to elucidate and the question was ruled inadmissible. Counsel for the plaintiff then endeavoured to qualify the witness as an expert in the investigation of motor vehicle collisions. The witness said that he had had over 10 years' experience in investigating motor vehicle collisions and during about half of that time he was supervising police activities at accident scenes and attended virtually all serious accidents in the Australian 3. Capital Territory during the three years prior to the subject accident on 4 June 1982. In the course of that experience he had looked at skid marks and tyre marks on roadways and drawn conclusions from those marks. The question objected to was then repeated, again objected to and again rejected. Ultimately and over objection by counsel for the defendant, Sergeant Brown was permitted to give evidence that in his opinion the marks on the roadway, together with the other material referred to, led to the conclusion that the southern most tyre marks were caused by the left wheel or wheels of the deceased's vehicle as the vehicle was swung to the right, that the vehicle then rolled over on to its side and slid along the road upside down on that portion of the road where the gouge marks appeared, and then, at the northern end of the gouge marks and alongside the median strip, came back on to its wheels before it rolled backwards and finally came to rest. The first ground of appeal on behalf of the defendant was that the evidence of Sergeant Brown was wrongly admitted in evidence, relying upon the principles stated in Clark v. Ryan (1960) 103 CLR 486, namely that expert evidence of the kind given can only be admitted when it derives from an organised branch of knowledge 1n which the witness 1S an expert. Counsel also relied upon the application of that principle in Sweeney v. Boulton (1984) 2 MVR 124. The principles laid down by the High Court in Clark v. Ryan, supra, relating to the admissibility of 4. expert testimony are differently expressed in the respective judgments of the majority of the court. Dixon C.J. said (at p.491) that the rule of evidence cannot be better put than 1t was by J.W. Smith in the notes to Carter v. Boehm, 1 Smith L.C., 7th ed. (1876) p.577: ""On the one hand', that author wrote, '1t appears to be admitted that the opinion of witnesses possessing peculiar skill 1s admissible whenever the subject-matter of inquiry 1s such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a sclence as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." Then after the citation of authority the author proceeds: 'While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it." Adopted by Harding A.C.J. in Reg. v. Camm (1883) 1 Q.L.d. 136. In R. v. Parker (1912) V.L.R. 152, one of the cases establishing the evidentiary use of finger prints to prove identity, Cussen J, in that connexion said that expert witnesses may give in evidence statements based on their own experience or study but that they cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law. To this should be added the observation made by Vaughan Williams J. during the argument of Reg. v. Silverlock (1894) 2 Q.B. 766, viz. 'No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people.' (1894) 2 Q.B., at p.769. The words 'profession or course of study' have of course a wide meaning and application; see per Lord Russel C.J. (1984) 2 Q.B. at p.771." Menzies J. expressed the rule as follows (at p.-501): "Opinion evidence to account for a happening that is described to a witness 1s admissible only when the happening can be explained by reference to an organized branch of knowledge 1n which the witness 1S an expert. As Lord Mansfield said in Folkes v. Chadd (1782) 3 Dougl. 157 [99 E.R. 589], (as quoted by Lord Merrivale in United States Shipping Board v. The Ship St. Albans (1931) A.C. 632, at p.642), 'the opinion of scientific men upon proven facts may be given by men of science, within their own science'," 5. In applying those principles to the admissibility of the evidence of Sergeant Brown, we are of the opinion that his evidence was inadmissible. The matters upon which he expressed his opinion, namely the course of the vehicle from the commencement of the southern most marks on the roadway, were not matters upon which an ordinary person would not be capable of forming a correct judgment without expert assistance. They were not matters partaking of the nature of a science as to require previous study in order to attain the requisite knowledge. They were matters which the trial judge could judge for himself unencumbered by expert testimony. In the words of Dixon C.J. in respect of the expert witness' evidence in Clark v. Ryan, supra, the evidence of Sergeant Brown really amounted to putting from the witness box the inferences upon which the plaintiff's case rested. ' The question then arises what course this court should take in relation to an award of damages based upon inadmissible evidence. It was submitted on behalf of the plaintiff that as the sequence of events deduced by Sergeant Brown and given in evidence was also accepted and given in evidence by an expert witness called to give evidence on behalf of the defendant, this court would not, in the exercise of its discretion, allow an appeal against the judgment in favour of the plaintiff on the ground of inadmissible evidence. At the same time, it was contended that Sergeant Brown was well qualified to make the deductions he made, and being at the scene and seeing for himself the marks on the road and their relative positions 6. to the deceased's motor vehicle, was 1n a strong position to make those deductions. The submission that the sequence of events as given in evidence by Sergeant Brown was accepted by at least one other expert witness called on behalf of the defendant is correct, and the trial judge made a finding to that effect. His Honour went on to say that the dispute amongst the experts was not the course of the deceased's vehicle before it finally came to rest, but what caused the driver to swing hard to the right just south and west of the median strip. Mr Boris Osman, consulting engineer, gave evidence on behalf of the defendant. Having given evidence of his experience and having had access to the various plans, documents and photographs in evidence and attended at the scene of the accident shortly before giving evidence on 20 August 1987, he expressed his opinion about the general course which the vehicle had taken. Shortly put, his opinion was the same as that previously expressed by Sergeant Brown. In our view the evidence of Mr Osman was no less inadmissible than that of Sergeant Brown and for the same reasons. In the circumstances, the impact of the expressions of opinion by Sergeant Brown are almost insignificant in the general context of the case. It 1s an entirely different situation to one where the inadmissible opinion evidence was adduced only by one side and not by the other. In the circumstances, the ultimate findings of fact 7. made by the trial judge could not reasonably be supposed to have been influenced by the inadmissible evidence of Sergeant Brown and his Honour said so. In any event, findings of fact inconsistent with the common deductions of Sergeant Brown and Mr Osman would have been unreasonable in the circumstances. The principles relating to the exercise of an appellate court's discretion to order a new trial where there has been a wrongful admission of evidence are discussed by Menzies J. in Clark v. Ryan, supra, at pp.503-505. In our view, no consequence whatever should flow from the wrongful admission of Sergeant Brown's opinion about the course of the vehicle. We turn to the ground of appeal relating to the trial judge's findings of fact about the cause of the accident. Shortly put, the argument on behalf of the defendant was that his Honour erred in speculating as to the most likely explanation of the accident rather than applying the test of the civil onus of proof. In expressing his findings of fact about the cause of the accident, his Honour referred to his earlier acceptance of the evidence of Sergeant Brown and Mr Jamieson that the road markings and other indicia on the roadway established that there was "a vicious swing to the right on the part of the deceased when the vehicle was only a metre or so south of the median strip and that the most likely explanation of that violent swing to the right was an over-correction after having turned suddenly to the left". His Honour accepted over-correction as the most likely explanation and found that the reason for 8. the deceased seeking to swerve to the left before the over-correction was the sudden and late realisation that his vehicle was about to collide with the southern end of the median strip. His Honour held that the lack of safety features or warning devices substantially contributed to the failure of the deceased to become aware of the imminent presence of the median strip before that precise moment. The submission in support of this ground was that whilst the effect of Sergeant Brown's evidence had been accurately stated by his Honour, the witness Mr Jamieson had not expressed the opinions attributed to him in the findings of fact about the cause of the accident and, as the evidence of Sergeant Brown was inadmissible, the trial judge was really left to guess as to the cause of the accident, which should have resulted in judgment for the defendant. Counsel relied upon Jones v. Dunkel (1959) 101 CLR 298 per Dixon C.J. at pp.304-305 and West v. Government Insurance Office of New South Wales (1981) 148 CLR 62. It 1s necessary to deal with the evidence of Mr John Jamieson, Senior Transportation Planner with a company of consulting engineers. He gave evidence of having perused the plan of the accident scene which was in evidence and of having visited the scene on 17 August 1987. He had prepared a report which was admitted in evidence without objection. Under the heading "Summary and Conclusions", Mr Jamieson's report states: "At 12.30 am on 3 June 1982, a light truck approached a median island in Lathlain Street, Belconnen. The median apparently had no approach line-marking, reflectors or signing. The truck impacted the island, rolled over, fatally injuring its driver. 9. From the material examined, 1t appears that the island had inadequate warning of its presence. Given the wide nature of the island (4.5m), 1t 1S possible that a driver of an approaching vehicle with its headlights on low-beam would not be able to see the island in sufficient time to perform an evaSive swerve. NAASRA guidelines clearly indicate appropriate treatment for such a site. In the absence of such treatment, it must be concluded that the road environment contributed significantly to this crash." The submission on behalf of the appellant was that that evidence does not amount to an expression of an opinion by Mr Jamieson that the road markings and other indicia on the roadway establish that there was "a vicious swing to the right on the part of the deceased when the vehicle was only a metre or so south of the median strip", as found by the trial judge. In cross-examination Mr Jamieson was referred to his summary and conclusions set out above and in particular that passage where he states that the truck "impacted the 1sland". He was asked whether 1t was an integral part of his opinion that the vehicle in fact impacted with the median strip and he answered in the affirmative. l In re-examination he was asked if 1t would alter his opinion if he were told that, instead of actually impacting with it, the driver swerved at the last minute. The question was objected to, but allowed, and Mr Jamieson answered that his opinion was the same, namely that the driver did not see the approaching median in time because of inadequate line marking and sign posting and the absence of reflectors. He said the driver may have in fact "tried to perform an evasive swerve to the left and it was such a 10. violent swerve that it could have created the vehicle to be unstable". In our view the trial judge has not misunderstood or misinterpreted the substance of Mr Jamieson's evidence which, so far as the cause of the accident was concerned, was substantially the same as that of Sergeant Brown and Mr Osman. We do not accept the submission that his Honour's findings as to the cause of the vehicle veering to the left to avoid the median strip were speculative. Indeed we are of the opinion that his Honour's finding in this respect was the only reasonable finding on the material before him. The appeal is dismissed with costs. I certify that this and the preceeding nine pages are a true copy of the reasons for judgment herein of their Honours Forster, Gallop and Spender JJ. Date: 27 July 1988 Associate Counsel for the appellant Mr B. Maguire QC Mr K. Crispin Australian Government Solicitor Solicitors for the appellant Counsel for the respondent Mr B. Murray QC Mr R. Williams Solicitors for the respondent Colquhoun Murphy Date of hearing 7 July 1988