Suttram Pty Limited v Michelin Australia Pty Limited (No 2) [2008] NSWDC 231

New South Wales District Court

CITATION: Suttram Pty Limited v Michelin Australia Pty Limited (No 2) [2008] NSWDC 231 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE: 26 September 2008

JURISDICTION: District Court of NSW

JUDGMENT OF: Cogswell SC DCJ

DECISION: Opinion rule does not apply. Falls within section 79 exception (specialised knowledge).

CATCHWORDS: OPINION RULE - Expert evidence - Specialised knowledge

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Australian Securities and Investments Commission v Rich [2005] NSWCA 152 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

PARTIES: Suttram Pty Limited (Plaintiff) Michelin Australia Pty Limited (2nd defendant)

FILE NUMBER(S): 4530 of 2006

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

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

1. This is a judgment on the question whether evidence tendered by one party falls within an exception to the opinion rule contained in the Evidence Act 1995.

2. This case concerns an accident involving a truck on a highway. The plaintiff, which is the 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. The second defendant is Michelin Australia Pty Ltd.

3. Counsel for Michelin has tendered three reports by a man named Henry Herzog together with correspondence with Mr Herzog. The three reports purport to contain Mr Herzog's opinions on questions said by Michelin to be relevant to the outcome of these proceedings. Because those reports contain opinions they are not admissible because of s 76 of the Evidence Act which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.