New South Wales Supreme Court CITATION : Hudson v Howes & Ors [2010] NSWSC 1503 HEARING DATE(S) : On the papers JUDGMENT DATE : 22 December 2010 JUDGMENT OF : Garling J DECISION : Plaintiff's list of questions are to be amended as specified, and a list of factual assumptions is to be included. CATCHWORDS : PRACTICE AND PROCEDURE – Expert witnesses – Conference of expert witnesses before trial – Assumptions of fact to be put to expert witnesses at conference – Questions to be put to expert witnesses at conference. - EVIDENCE – Expert opinion evidence – Basic principle that opinions must be based on assumed facts – Not a function of expert witnesses to make opinions based on their own unstated findings of fact from evidence provided to them CATEGORY : Procedural and other rulings R v Fowler (1985) 39 SASR 440 CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731 Trade Practices Commission v Arnotts Limited (No.5) (1990) 21 FCR 324 Robert Hudson (P) Penny Howes (D1) PARTIES : Rodney Howes (D2) Moruya Jockey Club Limited (D3) Racing NSW (D4) FILE NUMBER(S) : SC 2009/297858 Slater & Gordon Lawyers P) Wotton Kearney (D1) SOLICITORS : Wotton Kearney (D2) Edwards Michael Lawyers (D3) Edwards Michael Lawyers (D4) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GARLING J WEDNESDAY, 22 DECEMBER 2010 2009/297858 HUDSON v HOWES & ORS JUDGMENT Joint Conference of Liability Experts 1 HIS HONOUR: The Court has ordered that there be a joint conference of the experts who express opinions on issues relating to liability in this proceeding. 2 The aim of any such conference is to: (a) minimise the areas of disagreement between the experts about their opinions, and maximise the areas of agreement; (b) enable the production of a joint expert report which records the areas of agreement and of disagreement, together with a short statement from each expert as to their respective opinions on the issues which are not agreed; and (c) to enable the concurrent evidence of the experts to proceed in an orderly and efficient manner. 3 Directions have been given that the parties confer to attempt to agree upon the assumptions of fact which the experts will be asked to make for the purpose of expressing their opinions and the questions which they will be asked to answer. 4 It is apparent from the material which the Court has received that the parties have not succeeded in their attempts to agree on these matters. 5 Accordingly, it is necessary for the Court to determine what matters are to be put to the experts and to give directions to enable the conference to occur in an appropriate manner. Nature of the Claim 6 The plaintiff, Robert Hudson, a qualified horse trainer, was working in his capacity as a trainer at the Moruya Race Track on 19 January 2004. In that capacity, and whilst Mr Hudson was in the mounting enclosure leading a horse in and assisting a jockey to mount it, he was kicked by another which was also in the mounting enclosure called "Elytra Bid". 7 Elytra Bid was owned by the first defendant, Mrs Penny Howes and trained by the second defendant, Mr Rodney Howes. 8 Mr Hudson, the plaintiff, alleges that the first two defendants, Mrs Howes and Mr Howes, knew or ought to have known that Elytra Bid had a disposition which led to it misbehaving, being violent, and kicking out with its hind legs. 9 He alleges that there were a series of things which could have been done by Mrs Howes and Mr Howes to have avoided his injury, including warning Mr Hudson of the propensity of Elytra Bid, asking the stewards to exempt Elytra Bid from the mounting enclosure and keeping Elytra Bid under close control either by using a closer reign, placing it in a corner facing away from other horses, obtaining the assistance of the clerk of the course, or generally keeping proper control of the horse. 10 The plaintiff also sues the Moruya Jockey Club Limited and Racing New South Wales for a variety of breaches of their duty of care which include that the mounting enclosure was too small and an allegation that they failed to ensure that Elytra Bid was kept under proper control. 11 As a result of being kicked by the horse, the plaintiff, Mr Hudson, alleges that he suffered serious injuries and has suffered and will continue to suffer significant economic loss, and that he has required and will continue to require significant medical assistance, and domestic care and assistance. Expert Opinions 12 In this case, the plaintiff relies upon the expert opinion of Mrs Debbie Smyth, a retired horse trainer and riding instructor, who has prepared two reports, the first dated 16 January 2007 and the second dated 10 February 2010. 13 It is clear from a perusal of the first of the two expert reports of Mrs Smyth that she has, at the request of the then solicitors for the plaintiff, not only been provided with some documents upon which to form her opinion, but that she has also, herself, spoken to and taken statements from a number of people who observed what happened or else who are themselves experienced horse trainers. 14 The facts upon which her opinion appears to be based are those contained in paragraphs 34 through to and including 38 of her report of 16 January 2007. However, it is not easy to tell whether the statements which she has annexed to her report also contain facts to which she has had regard. 15 The first and second defendants have retained Dr Andrew McLean, the director of the Australian Equine Behaviour Centre, to give his opinion. His opinion is contained in two reports dated 17 November 2010 and 18 November 2010 respectively. The assumptions of fact upon which his opinion are based are set out in paragraphs 5.1 through to and including 5.16 on pages 4 to 6 of his first report. 16 It is to remembered that the basal principle is that the opinion which is given by an expert must be based on facts. Those facts have to proved in the ordinary course by the party relying upon them. Where there are facts which are not within the expert's own knowledge, then the expert is asked to make assumptions of the facts upon which the opinion may be based: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731 [64] per Heydon JA. The facts proved must correlate to some degree with those assumed for the purposes of the expert opinion because unless that is so, there is no rational relationship between the expert's opinion and conclusion and the facts proved: Makita at 732 [64]. 17 It is no part of the function of an expert to be asked to read evidence, whether in statement or transcript form, and upon the basis of the entirety of that material which the expert reads to express a conclusion without identifying the facts or matters upon which that conclusion is based. 18 King CJ said in R v Fowler (1985) 39 SASR 440 at 443 this: "The course which was sought to be adopted in the present case of asking the opinion of the witness as to the possible mental condition of the accused at the time of the alleged crime, based not upon assumed facts, but upon a reading of the whole of the evidence and the accused's account of his drug ingestion, is not acceptable and such evidence cannot be admissible. It involves the expert in making his own unstated findings of fact and his own interpretation of them. … If, therefore, evidence of opinion is to be adduced …, it is of the utmost importance that the assumptions of fact upon which the opinion is arrived at be clearly stated and that the evidence be confined to opinions expressed upon those stated assumed facts." 19 Beaumont J considered the same question in Trade Practices Commission v Arnotts Limited (No.5) (1990) 21 FCR 324. At 330 he said: "In my opinion, [the] authorities establish that there is a rule of evidence at common law that, except in a straight-forward, uncomplicated case, where the facts are admitted and readily identified, the opinion of an expert is admissible only where the premises, that is to say, the facts, upon which his or her opinion is based, are expressly stated. It follows that, in a complex case, where facts are not readily identifiable, it is not permissible to put the whole of the transcript and documentary evidence to the witness en bloc." 20 In Makita at [85], Heydon JA said: "In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts upon which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applied to the facts assumed or observed so as to produce the opinion propounded." Parties' Proposals 21 The plaintiff has submitted a document entitled "Plaintiff's Brief for Liability Expert". Part A of that document is headed "History to be Assumed". Notwithstanding the promise of the heading, Part A contains no stated assumptions of fact. 22 Part B contains "Plaintiff's List of Questions". Questions 1, 2, 6 and 9 are general questions which relate to opinions which could be expressed by the experts and are matters of general application, rather than specific application by reason of any facts, matters or circumstances in this case. Those questions are entirely permissible. 23 Questions 3, 4, 5, 7 and 8 seek opinions based upon what occurred at Moruya in the mounting enclosure on 19 January 2004, when the plaintiff's injuries were sustained. 24 By way of example, question 7 is in the following form: "7. If you accept the witness statements of Ray Silburn, Jan Carter, Robert Motbey, Darrel Hope and Kevin Sweeny that Elytra Bid had a known propensity to kick, what actions, if any should have Robert Howes [sic] undertaken when preparing Elytra Bid to enter the mounting enclosure." 25 Besides the fact that the witness statement of Kevin Sweeny is not included in the list of documents to be given to the experts, no doubt a matter which could be remedied, the framing of this question would come within the practice deprecated by King CJ and Beaumont J in the authorities to which I have earlier referred. 26 As well, the balance of the questions which are asked assume facts to be in the mind of the experts without articulating them. For example, question 4: "4. In your view, did Robert Howes [sic] fail to exert adequate or proper control over the horse and what could Robert Howes [sic] [have] done to reduce the probability of the harm occurring." is a question which assumes a knowledge of facts which occurred leading up to the incident in question. But those facts are not specified. 27 I would not permit questions 3, 4, 5, 7 and 8 contained in Part B of the Plaintiff's Brief for Liability Expert to be put to the joint conference unless and until the plaintiff encapsulates clearly and succinctly the assumptions of fact which the experts are to be asked to assume for the purpose of the expression of their opinion. 28 There is clearly a different factual construct between each of the parties. The factual construct contended for by the defendants is to be found in paragraphs 11 through to 16 of Part 5 of the first expert report of Dr Andrew McLean. It seems to me that the factual construct contended for by the plaintiff is to be found in paragraphs 35 to 38 inclusive of the first report of Mrs Smyth. By reference to the statements attached to that report, there may be other matters of fact upon which the plaintiff relies as being relevant to the opinion of the experts. It is a matter for the plaintiff to identify and articulate with precision all of the assumptions of fact which he wants the experts to make. 29 The experts should then be asked to consider, as alternatives, each of these sets of assumptions of fact and to answer the questions, by reference separately to each of the sets of the assumptions of fact, which are posed by the parties. Directions 30 Accordingly, I give the following directions with respect to the assumptions of fact and questions to be asked of the experts: (1) The list of questions contained in Part B of the Plaintiff's Brief for Liability Experts are to be submitted to the joint conference for an expression of opinion by both of the experts providing that: (a) the plaintiff sets forward under Part A, with precision, the assumptions of fact which each of the experts are to be asked to make for the purpose of answering the questions set out in Part B; and (b) question 7 is reframed to read as follows: " If you assume that Elytra Bid had a known propensity to kick, what actions, if any, should Rodney Howes have undertaken when preparing Elytra Bid to enter the mounting enclosure ". (2) The defendant is to submit its Brief to the Experts in accordance with the document as submitted to my Associate on 21 December 2010. (3) Both experts are to be asked to answer the questions posed respectively by the plaintiff and the defendants, having regard to both alternative sets of assumptions of fact. (4) I grant liberty to apply. ********** 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.