Mouzakzak v The Nominal Defendant (No. 2) [2020] NSWDC 422

District Court New South Wales

Medium Neutral Citation: Mouzakzak v The Nominal Defendant (No. 2) [2020] NSWDC 422 Hearing dates: 27-30 July 2020 Date of orders: 30 July 2020 Decision date: 30 July 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 22 Catchwords: PRACTICE AND PROCEDURE – admissibility of parts of joint expert report produced by 4 experts – late inclusion of new methodology of analysis by one of the defendant's experts – whether procedurally fair to admit evidence relating to new methodology – lack of notice for inclusion of new methodology – plaintiff's experts not given opportunity to respond Category: Procedural and other rulings Parties: Ms S Mouzakzak The Nominal Defendant Representation: Counsel: Mr H Marshall SC and Mr J Tryon (Plaintiff) Mr K Rewell SC (Defendant)

Solicitors: Prominent Lawyers (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2018/231550 Publication restriction: Nil

Judgment

BACKGROUND 1. The trial has reached the stage where the lay evidence has concluded and the expert liability evidence is to begin. The parties have each chosen two experts. For the plaintiff, the liability experts are Mr Johnston and Mr Hall. For the Nominal Defendant, the experts are Mr McDonald and Mr Sculthorpe. The field of specialty is engineering. 2. At issue now is the admissibility of part of the content of a joint expert report, prepared after a very recent joint conference. Specifically, objection is taken by the plaintiff to a substantial part of Question 9 including, as I understand it, some photographs and a diagram. 3. In substance, the plaintiff complains that in the impugned part of the joint report, Mr McDonald had deployed a certain mode of investigation, experiment or analysis known as photogrammetry, which had not previously been deployed by him in his earlier reports and which he had introduced, for the first time, in the joint conference between the experts. The plaintiff complains that this course has been procedurally unfair since, relevantly, the plaintiff's experts, and Mr Johnston in particular, have not had opportunity to conduct comparable photogrammetry analysis and therefore respond to Mr McDonald's analysis in this respect. 4. It is notable that alone amongst the experts, Mr McDonald actually saw the damaged vehicle the subject of the proceeding. It is accepted that the selection of photographs which he compiled is of the highest quality of the photographs that all of the experts had taken. Further, it became readily apparent that Mr Johnston and Mr Hall – the plaintiff's experts – have respect and high regard for Mr McDonald and trust in his integrity in undertaking photogrammetric processes. 5. It is unnecessary for me to be overtly technical in what comprises photogrammetry analysis for the purpose of these reasons. Suffice to say, it involves a selection of a sample of photographs, relevantly of the car; a particular reference point is selected (such as a door lock); and from that reference point, measurements are made to other parts of the vehicle. Mr McDonald utilised computer software to position cameras and, with the application of principles of trigonometry, an accurate, or 'scaled' picture may emerge as to where damage to the vehicle can be ascertained. It is accepted, I think, that a not insignificant level of subjectivity is required when selecting the points. 6. It is pertinent to note part of the process by which the joint report was prepared. 7. Firstly, all 4 liability experts prepared multiple reports in advance of the conclave. Relevantly, all of them had been prepared and served by February 2020. The case was set down for hearing many months ago with a hearing date confirmed in May 2020. I was informed from the Bar Table that an issue emerged as to whether the Nominal Defendant's experts could respond to a recent report from Mr Hall. That issue was recently resolved by the Civil List Judge who, on limited terms, granted Mr Sculthorpe the opportunity to respond. 8. The experts commenced their conclave on Monday, 20 July 2020. They did not, however, sign a report until the first day of the trial, which was 27 July 2020. It was explained to me that most of the experts conclaved by way of a 'Zoom' video conference. At any rate, there were many iterations of the report. 9. It appears to be the position that the notion that Mr McDonald might be able to deploy photogrammetric analysis was touched upon, in a somewhat limited way, during the Zoom conclave that occurred. 10. Mr Johnston said that it was limited to analysing damage to the Mercedes Benz vehicle on its right side of the vehicle sill forward of an A-pillar. As I understood his evidence, given on the voir dire, because of a long working association with Mr McDonald, Mr Johnston acceded, or perhaps acquiesced, to his use of this software for that purpose. Mr Johnston indicated that he considered that Mr McDonald strayed beyond consideration of the location of the sill cover. 11. At any rate, as it appears in the answer to question 9, Mr McDonald has utilised the results of his photogrammetry analysis as part of his general answer to the very significant issue of whether damage to the driver's side was consistent with a collision with an unidentified vehicle. As the transcript will indicate, it is plainly the case that this photogrammetric mode of analysis has been used in a broader sense. 12. In Mr Johnston's response to what Mr McDonald said in answer to question 9, Mr Johnston noted that he used a different software product which could produce a comparable analysis, in order to respond to Mr McDonald's photogrammetric analysis. This, he said in his evidence, would not only cost US$3,000, but would probably require him to spend a week to conduct such analysis. 13. As I understood him, Mr Hall does not have access or even familiarity with this type of software to engage in a comparable exercise.