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. SUBMISSIONS 1. Senior Counsel for the Nominal Defendant acknowledges that Mr McDonald who, as I say, was in an advantageous position, deployed an investigative technique not previously utilised in his earlier reports during the fluid process of the conclave that began with Mr McDonald suggesting that photogrammetric analysis might be useful to answer a specific issue of damage, and ended with a signed report prepared after 11 iterations. 2. He submitted that there was no question that any further or better photographs could be taken than those which Mr McDonald had taken. Further, there was no dispute that the photogrammetic analysis can be useful and possibly even very probative. He submitted that although there was a margin for error in relation to the software and an avowed degree of subjectivity, in circumstances where no other expert doubted the integrity of Mr McDonald's analysis, the other experts were quite capable, during the process of evidence being taken concurrently, to point out if and where they doubted the results and the basis for such doubts. The most appropriate course is to allow the evidence in the joint report in and let all the experts deal with it. 3. There is force to these submissions. Nevertheless, I cannot discount the possibility that Mr Johnston would have been in a more informed position to address the issues of damage on the basis of photogrammetic analysis had he had fair opportunity to conduct his own analysis, using his own software. The lateness with which Mr McDonald has applied this particular form of analysis – which was omitted from his two earlier reports – was not explained. 4. There was some brief debate on the voir dire whether Mr Johnston's software might generate higher quality image than Mr McDonald's software. It is unnecessary now to determine that debate. Because of the late notice and timing for this new analysis, Mr Johnston has been deprived of that opportunity to extol his version. 5. I do not consider that it is fair to expect Mr Johnston to deal with this on the run, during the process of concurrent evidence, having been deprived of the opportunity to conduct his own analysis. I accept that there is a not insubstantial measure of prejudice if I was to permit the impugned evidence to go in. I note, in this regard, that the Nominal Defendant has not suggested that there be an adjournment of this proceeding to enable Mr Johnston to deploy it. At this point, I note, we are in day 4 of a hearing estimated and fixed to run for 5 days. 6. The case was set down for a hearing with a conclave preceding it by a week. Mr Johnston was entitled to proceed on the basis that the discussion in the conclave of Mr McDonald's analysis would substantively centre upon the methodology he deployed in those earlier reports. It did not. Instead, Mr McDonald, without prior notice, suggested an altogether new methodology during the conclave itself. I accept the colourful characterisation of Senior Counsel for the plaintiff that he went off on a frolic. I emphasise that there is no criticism here of Mr McDonald's sincerity: plainly he considers that this methodology is useful. 7. But the time was well past for him to deploy this methodology during the conclave and it is unfair to require Mr Johnston to deal with the results of that methodology, on the run, during this hearing without him having had the chance to perform his own analysis. 8. I am fortified in these views by the circumstance that the Nominal Defendant's Senior Counsel yesterday described Mr McDonald's conclusions based upon this form of analysis as being "confirmatory" of his earlier views. In other words, no significant detriment will be occasioned to the Nominal Defendant if, as I have decided, the impugned part of the joint report is rejected. The concession confirms my own view that it is not in the interests of justice for the impugned part of the report to stand. 9. I therefore reject the part of the answer to question 9 in the joint expert report commencing with the second paragraph. POSTSCRIPT Subsequent to this ruling, various other parts of the evidence were rejected. ********** Amendments 06 August 2020 - Minor change to catchwords. 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. Decision last updated: 06 August 2020