Searle v Commonwealth of Australia (No.7) [2022] NSWSC 1805

Supreme Court New South Wales

Medium Neutral Citation: Searle v Commonwealth of Australia (No.7) [2022] NSWSC 1805 Hearing dates: 10 March 2022 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Common Law Before: Garling J Decision: See [13], [15] Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion — what use may be made of assumptions made by an expert about a hypothetical situation Legislation Cited: Not Applicable Cases Cited: Searle v Commonwealth of Australia [2022] NSWSC 1326 Texts Cited: Not Applicable Category: Procedural rulings Parties: Clayton William Searle (P) Commonwealth of Australia (D) Representation: Counsel: N J Kidd SC / D Meyerowitz-Katz (P) K Andronos SC / S Keizer (D)

Solicitors: Levitt Robinson (P) McCullough Robertson (D) File Number(s): 2016/45027 Publication restriction: Not Applicable

EX TEMPORE Judgment 1. Yesterday I ruled that two reports by Mr Matthew Hunter were, notwithstanding the objection of the defendant, admissible as expert reports. The reasons for my decision may be found in Searle v Commonwealth of Australia [2022] NSWSC 1326. The plaintiff seeks to rely on further reports that Mr Hunter has prepared relating to other sailors whose claims for damages are being assessed. Noting my earlier ruling, the defendant does not contest the admissibility of the reports. There has, however, been further dispute about the use which may be made of certain aspects of Mr Hunter's reports, necessitating this judgment. 2. Each of the reports is in a similar form. One of the paragraphs in each of the reports contains a series of sub-paragraphs which I ruled were admissible in my previous judgment on the basis that they represented assumptions made by Mr Hunter, and upon the basis of which assumptions, he calculated arithmetically losses which could have been incurred because of the absence of a Certificate IV in Engineering qualification. They had been tendered as facts which were established by the report. 3. The paragraph numbers differ between reports, but they each appear directly under a heading, "Calculation of earning capacity." The Commonwealth has provided a schedule which identifies those sub-paragraphs as being assumptions across each report. I am satisfied, broadly, that schedule correctly reflects, across all reports, the reasons for judgment on admissibility which I gave yesterday. 4. Mr Hunter has been called to give evidence today. The plaintiff has sought to tender those assumptions, as I will refer to them, as being either evidence of fact or, alternatively, as being reasonable estimations made by Mr Hunter of the key factors which would impact upon an assessment of the loss which each claimant has sustained. 5. Objection was taken to the lifting of the limitation by way of assumption, and a voir dire has been conducted. Mr Hunter was the only witness on the voir dire. Mr Hunter's evidence makes it plain that, in the case of each claimant, where he has identified a specific possible employer and a specific enterprise bargaining agreement covering the relevant tradesperson category and the relevant geographical area for each climate, he has no actual knowledge of the workings specifically of that particular employer at any particular place. He freely accepts that he has not worked for such a company, either directly as an employee or else has done any consulting work for them. 6. My sense of the evidence given by Mr Hunter, both in evidence in chief and in cross‑examination on the voir dire, was that he had made these assumptions on the basis of his general industry knowledge which I have described in my earlier ruling, knowledge gained from specific inquiries or research which he has made into employers in particular geographical areas, and knowledge gained by interviewing applicants for positions as apprentice tradespeople or as qualified tradespeople in the business in which he was employed at the relevant time. As a consequence of recruiting a significant number of staff from the east coast of Australia during those periods, he has applied that knowledge and the facts which he has obtained to express the assumptions which he has. 7. In my view, those matters are an inadequate basis to allow for the Court to read these various subparagraphs as anything other than assumptions. I do not think they can be read as reasonable estimates. The reason for that is principally twofold. 8. The estimate is based on the hypothetical construct that the particular claimant would obtain a position with a particular employer under a particular enterprise bargaining agreement. That construct, hypothetical though it may be (given that Mr Hunter has no specific experience of any of those employers) cannot be added to as a reasonable estimation of that employer's work simply based on general industry experience and his general knowledge. Something more would be required before an estimate or a reasonable estimate could be made as to what might happen with the claimant with that employer. 9. Secondly, I do not understand the substance of what Mr Hunter himself said he was doing to constitute a reasonable estimate of a claimant in such a position. Accordingly, I would not be prepared, on the basis of the evidence in the voir dire, to admit it so as to establish that the limitation placed upon the admission of the various subparagraphs ought be removed and the paragraphs understood as reasonable estimates of what, in fact, would have happened had a claimant obtained work with the identified employer. 10. However, even allowing for the fact that the various subparagraphs and the contents must remain as assumptions, the evidence is, in my view, nevertheless admissible because it is relevant to an assessment of the value of a lost opportunity to obtain work if the claimant had a particular qualification, here a Certificate IV in Engineering in one or other of the identified trade streams. 11. In coming to this conclusion, I understand the submission put by senior counsel for the Commonwealth that there are many integers and variables which have not been taken into account and which may not be able to be taken into account, which would affect the weight to be given to the evidence which was given on the voir dire. 12. However, I am satisfied that the nature of the exercise on which I am embarked, which is the assessment of a loss of a chance to obtain a position in the absence of a particular educational qualification, may nevertheless be informed by the evidence given by Mr Hunter, and therefore, that evidence is admissible. As I say, the weight to be given to it is a matter which can abide the balance of the evidence and the ultimate submissions by counsel. Accordingly, the evidence given on the voir dire this morning by Mr Hunter will be admitted on the trial. 13. I decline the plaintiff's application to remove the limitation on the various sub‑paragraphs identified in various reports, namely, that the matters set out in those sub‑paragraphs are assumptions made by the author. 14. I should add to this ruling that in the course of the voir dire, senior counsel for the Commonwealth objected to one or other question. I reserve to senior counsel the opportunity, when the transcript is available tomorrow, to draw my attention to any one or other question to which he takes objection by reason of form, qualifications or otherwise. 15. However, that said, in my view, the evidence generally is admissible, but subject to the expressed limitations.