Suttram Pty Limited v Michelin Australia Pty Limited (No 3) [2008] NSWDC 233

New South Wales District Court

CITATION: Suttram Pty Limited v Michelin Australia Pty Limited (No 3) [2008] NSWDC 233

JUDGMENT DATE: 21 October 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Reports of the expert are admissible.

CATCHWORDS: ADMISSIBILITY OF EXPERT REPORTS - Opinion rule - Specialised knowledge - Misleading or confusing - Probative value - Relevance

LEGISLATION CITED: Evidence Act 1995

PARTIES: Suttram Pty Limited Michelin Australia Pty Limited

FILE NUMBER(S): 4530/06

COUNSEL: J L Sharpe (Plaintiff) A R Vincent (Second defendant)

SOLICITORS: Fraser Clancy (Plaintiff) Deacons (Second defendant)

JUDGMENT

1. This case concerns an accident involving a truck on a highway. The plaintiff owner of the truck claims that the accident was the result of a defective tyre manufactured by the second defendant. The second defendant denies that claim.

2. The second defendant, through its counsel, Mr Vincent, has tendered four reports by a man named Henry Herzog. Mr Sharpe, who appears for the plaintiff, objected to three of the reports based upon the opinion rule contained in s 76 of the Evidence Act 1995 . The only reason that he did not object to the fourth report is that the fourth report is dated 7 October 2008 which is after the argument and judgment on the objection concerning the opinion rule.

3. I delivered judgment on Mr Sharpe's objections on 26 September 2008. As I record in that judgment, Mr Sharpe's objections focused on four areas. In each of those areas I reached the following conclusions. In the first area, where the objection was that there was no area of specialised knowledge which the witness Mr Herzog had, I concluded that Mr Herzog has specialised knowledge in an area known as tyres and tyre failure. Insofar as the second objection that Mr Herzog lacked appropriate experience in any area of specialised knowledge, I concluded that Mr Herzog's experience was sufficient to provide the basis for his specialised knowledge. I also concluded that his studies at university and, to some extent, his training, contributed as well to his specialised knowledge. Mr Sharpe's third objection was that Mr Herzog failed to articulate reasons for the opinions expressed in the reports. I concluded that all of the opinions expressed by Mr Herzog in his reports were clearly founded on the experience and study, with particular reference to his experience in observing the behaviour of a large number of tyres over many years. I concluded that is was not necessary for the witness to qualify every opinion he expressed by reference to the specialised knowledge based upon his training, study or experience. The evidence of his experience and study which has provided him with the specialised knowledge provided sufficient articulation of how that specialised knowledge applied to the facts assumed or observed by him so as to produce the opinions which he had expressed. Mr Sharpe's final argument on the admissibility under the opinion rule was that Mr Herzog had become an advocate for his client and attacked other experts. I concluded that those arguments did not go to the question of whether the reports fell within the exception to the opinion rule contained in s 79 of the Evidence Act which Mr Vincent argued, applied.