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. 4. In addition to taking objections under the opinion rule, Mr Sharpe argued that the reports should be excluded pursuant to section 135 of the Evidence Act . I concluded that even if I accepted Mr Sharpe's argument in full, any such misleading or confusing aspect of the reports would not be such as to result in the probative value being substantially outweighed by such danger. 5. I make reference to that judgment and my conclusions because Mr Sharpe took further objections to specific passages in the various reports of Mr Herzog. He has helpfully articulated those objections in a document dated 29 September 2008, to which Mr Vincent has equally helpfully responded by a document dated 20 October 2008. 6. Many of Mr Sharpe's objections are to relevance. I can find no parts of any of the reports which I would exclude as being irrelevant. Questions may arise as to the weight to be placed upon various aspects of the reports, and they are issues which can be addressed in cross-examination and in final addresses at the end of the case. All of the material contained in Mr Herzog's reports is relevant in my opinion to a fact in issue in these proceedings, namely the cause of the accident which is the subject of these proceedings. In particular, Mr Sharpe focuses on the reports where Mr Herzog responds to reports provided to him emanating from the other party, namely the plaintiff. I regard Mr Herzog's responses to those reports as relevant because they are commenting on opinions expressed on a fact in issue in the case by other experts who have been called in the proceedings. 7. Other objections taken by Mr Sharpe are that various opinions expressed in the reports are outside the specialised knowledge of the witness. As I concluded in my judgment of 26 September 2008, Mr Herzog has specialised knowledge in the area of tyres and tyre failure. I regard none of the opinions expressed by him as venturing beyond that area. It may well be that some of the opinions expressed carry less weight than other opinions or might expose Mr Herzog to cross-examination on the basis for his conclusions but, as said, I do not find that any of the opinions have strayed outside his area of specialised knowledge. 8. For the reasons given already in my previous judgment, I do not find that Mr Herzog has failed to sufficiently articulate how the field of specialised applied to the facts he was asked to assume or which he observed so as to produce the opinions that he expressed. 9. One or more objections are taken upon the basis of the facts which Mr Herzog assumed in expressing his opinion. For example Mr Sharpe, objecting to the fifth paragraph on page 4 of the report of 31 May 2007 (exhibit VDJ2), takes issue with expressions used such as "vibration" and "jiggling". These are matters which, in my opinion, go to the weight which might be placed upon Mr Herzog's evidence after he has been cross-examined on such issues. 10. One objection taken by Mr Sharpe is to the seventh paragraph on page 4 of the report dated 24 July 2007 (exhibit VDK2). There is some force in his argument that the witness assumes a knowledge, an expertise, as to what truck drivers ought to know. Once again I regard that as a matter about which a expert witness may express an assumption and which ought to be exposed in cross-examination. 11. The fourth report, which is dated 7 October 2008 and which I have admitted on the voir dire as exhibit VDM, is a report from Mr Herzog where he comments on a report of an expert qualified on behalf of the plaintiff, namely Dr Casey. Mr Herzog's report in turn comments on Dr Casey's responses to 12 questions put to Dr Casey by the plaintiff's solicitors. Objection is taken to the whole of that report on a number of bases. The first is relevance, the second is that the report is outside the area of specialised knowledge of the witness and the third is that it is argumentative. In addition, an objection is taken under section 135 of the Evidence Act . 12. I do not uphold any of those objections. I regard the report as relevant, because it is a report by an expert commenting upon the report of another expert which in turn responds to questions put to that expert, those questions being based upon transcript in these proceedings. I regard the responses as being within the area of expertise, which I described in my earlier judgment. The report is argumentative. That is not a reason to exclude it. It is understandably argumentative in the sense that it is responding to the report of another expert. The report clearly has probative value on its face. The extent of that probative value will depend, of course, upon submissions. But I do not regard any aspect of it as being so misleading or confusing or time wasting that its probative value is outweighed. 13. Accordingly, for those reasons, I propose to admit into evidence in the proceedings the report of Dr Herzog dated 24 July 2007 - that is, exhibit VDK2 - the report of Mr Herzog dated 31 May 2007 - that is, exhibit VDJ2 - the report of Mr Herzog dated 23 May 2008 - that is, exhibit VDL1 - and the report of Mr Herzog dated 7 October 2008 - that is, exhibit VDM. oOo 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.