New South Wales District Court CITATION: Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 160 JUDGMENT DATE: 24 February 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Application under s 136 of Evidence Act 1995 refused. CATCHWORDS: CIVIL LAW - application to strike out opinion evidence of an expert witness - application to limit use of evidence under s 136 Evidence Act 1995 LEGISLATION CITED: Evidence Act 1995 s 136 PARTIES: Suttram Pty Limited Michelin Australia Pty Limited FILE NUMBER(S): 4530/06 COUNSEL: Mr Sharpe (plaintiff) Mr Vincent (2nd defendant) JUDGMENT 1 Mr Sharpe, counsel for the plaintiff, makes two applications. One of them is to strike out a substantial part of the evidence of a witness. The other, as an alternative, is to limit the use made of that evidence under s 136 of the Evidence Act 1995. The application to strike out the evidence relates to the evidence of a Mr Herzog, an expert called by the defendant. There was a voir dire over the question of whether Mr Herzog was qualified to offer opinions on various matters in this case. I ruled that he was qualified to offer opinions. Mr Sharpe argues that now that Mr Herzog is giving evidence in the proceedings as an expert, his qualifications to offer opinions have effectively fallen away under cross-examination. 2 Mr Sharpe referred to various questions in cross-examination asked by him of Mr Herzog about various publications. Mr Sharpe's purpose in asking the questions was to seek information about the reasoning process behind Mr Herzog's opinions. At several stages, Mr Sharpe asked in cross-examination about articles or books that the expert referred to. It must be said that the answers offered by Mr Herzog were somewhat inadequate. He was able to offer what he recollected to be the name of a book named Materials Engineering. He could only remember the first name of the author. He also thought that one of his undergraduate lecturers wrote a book as well, named Plasticity of Polymers. I should add that Mr Herzog is a qualified engineer, having done his undergraduate degree at Monash University and a Masters in engineering at the University of New South Wales. 3 Mr Sharpe argues that the basis of the witness being able to offer opinions has been reduced to a negligible state. I do not agree. In my opinion, one of the significant bases upon which he is offering his opinion are his qualifications as an engineer. In addition, he has experience in dealing with tyres and rubbers. It is true, as I said, that his answers to the questions about publications were inadequate. 4 That is not, in my opinion, a sufficient basis to strike out his evidence. I hold that view for two reasons. One is that, as with many examples of opinion evidence, the question of the weight to be given to the evidence is something which cannot be finally explored or argued until the evidence is in. This is such a case. I think the more appropriate time for a submission to be made about the weight to be given to this evidence - because of any argued lack of connection with academic writings - should be during addresses. 5 The second reason is that, in my opinion, the matter might have been explored during the adjournment. Mr Herzog was cross-examined about the publications on 23 October 2008. The plaintiff's representatives have attempted to track down the publications through the Internet without success. They complain that they are at a disadvantage, and it is unfair to be asked to conduct a case when they cannot access the publications referred to by the witness. That is a matter, in my opinion, which might have been made the subject of an application before me or a request for particulars of the defendant. Mr Herzog has just said in evidence before this application that the publications he was referring to are kept at home, and he would be able to provide the information, given an opportunity. 6 As to Mr Sharpe's application to limit the use of the evidence, by reference to s 136 of the Evidence Act, he refers to evidence given yesterday by Mr Herzog. Under cross-examination, Mr Herzog offered two explanations for the accident which is the subject of this case. One is a phenomenon called "aquaplaning." The second was driver error. The aquaplaning, the plaintiff argues, is the first time it has heard of the cause of the accident being attributed to such a phenomenon. Mr Sharpe argues that that point ought to have been included in an expert report. There is some force in that point but, as Mr Vincent argues, the evidence about the aquaplaning emerged in fairly open-ended cross-examination. I am not being critical of the cross-examination at all but it did emerge through Mr Sharpe exploring, no doubt for good forensic reason, the witness' explanations for the cause of the accident. As Mr Vincent observed, the cross-examination could have been limited to questions to the effect that, "No explanation for the cause of the accident was offered in the reports." 7 For that reason I do not propose to grant the application under s 136 of the Evidence Act. ********** 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. 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