Supreme Court New South Wales Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (no 2) [2012] NSWSC 916 Hearing dates: 31 July 2012, 1 August 2012 Decision date: 10 August 2012 Before: Price J Decision: Evidence not admitted Catchwords: Evidence - admissibility - whether opinions expressed were admissible Legislation Cited: Evidence Act 1995 s 55, s 76(1), s 79(1), s 80(a), s 80(b) Cases Cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Court's "Allstate" Judgment No 33) (1996) 64 FCR 79 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Dasreef Pty Limited v Hawchar [2011] HCA 21; [2011] CLR 588 R v GK (2001) 53 NSWLR 317 Category: Procedural and other rulings Parties: Roads and Traffic Authority of New South Wales (plaintiff) Mr Toepfer (defendant; cross-claimant) CGU Insurance Limited (1st cross-defendant) Vero Insurance Limited (2nd cross-defendant) NTI Limited (3rd cross-defendant) Representation: Mr Glissan QC + Mr Manion (plaintiff) Mr Toepfer in person unrepresented (defendant; cross-claimant) Mr Deakin QC + Mr Stockley (cross-defendants) File Number(s): 2009/293003 Judgment 1HIS HONOUR: Mr Deakin QC, who appears for the first, second and third cross-defendants (the insurers) sought to tender a report prepared by Roger Sanders dated 11 June 2012. Mr Toepfer, who self represents Barrie Toepfer Earthmoving and Land Management Pty Ltd, the first defendant/cross-claimant objected to the report being received into evidence, as did Mr Glissan QC, for the plaintiff, the Roads and Traffic Authority of New South Wales. 2On 1 August 2012, I rejected the proposed tender and now provide my reasons for doing so. 3During argument, Mr Deakin identified the relevance of the report as being confined to the cross-claim between the cross-claimant and the insurers. The insurers have denied that they are obliged to indemnify the cross-claimant and particular reliance is placed on paragraph 7(1) of the terms and conditions of the contract of insurance. The insurers contend that the plaintiff's loss and damage was caused directly by the reckless behaviour of the cross-claimant's driver and paragraph 7(1) then operates so as to exclude indemnity under the policy. 4Mr Deakin submitted that Mr Sanders' opinions in the report were relevant to the appropriateness or otherwise of the driver's behaviour which went to the ultimate issue of recklessness. Mr Sanders' specialised knowledge was identified as being "in relation to the responsibilities of a professional driver of a commercial vehicle": T258 28-29. After Mr Sanders' evidence was given on the voir dire on 1 August 2012, Mr Deakin further articulated Mr Sanders' expertise as follows (T293 43-46): "He is an expert on traffic safety and road safety issues and including within that expertise, as we would emphasise... is driver behaviour and assessment of driver behaviour". 5It was contended for the insurers that Mr Sanders had first-hand experience of investigating driver behaviour in vehicle accidents involving heavy vehicles and was able to assist the court with those standards that are reasonable to expect of such a driver. Mr Deakin did not submit that Mr Sanders' specialised knowledge arose from his training or study, but it was said to be founded upon his experience. 6There were passages in Mr Sanders' report that Mr Deakin withdrew from the tender, but the remainder included Mr Sanders' opinions at para 3.2.1 that: "The discussions with Mr Wyborn should have alerted Mr Luck to the probability that the load was over height. If he had any doubt he should have stopped and measured the load. A reasonable and prudent driver exercising due care would and should have travelled at a speed that would have enabled him to stop the vehicle before any bridge strike." 7And at 4.1.1: "Mr Luck should have stopped the vehicle when the excavator arm came into contact with the first beam. The impact noise and jolting of the cabin should have alerted Mr Luck to the severity of the situation. He chose to ignore these warnings. He could and should have stopped the vehicle at the first impact. He had responsibility to both Mr Wyborn and all other road users for their safety. He completely disregarded the obligations that would be expected of a reasonable person." 8And at para 5 Conclusion: "There is really no excuse for any professional driver to be unaware of what his/her legal requirements when driving a truck are ... He made a decision to ignore what was obvious and drove the vehicle along the Pacific Highway to the Hexham Bridge where the collision/incident occurred. The severity of damage was exacerbated by Mr Luck's failure to stop the vehicle when it first contacted an overhead cross beam." 9The opinions expressed by Mr Sanders were founded upon an account of events contained in a letter of instructions from the insurers' solicitors that he had been asked to assume might be accepted by the court. 10During his testimony on the voir dire, Mr Sanders expanded upon his curriculum vitae that was attached to the report. He had been a member of the Victorian Police Force for 30 years. At the time of his retirement from the Police Force in 1999, he was an Acting Chief Inspector Traffic Operations in charge of the Accident Investigations Section. This role involved the co-ordination of investigations into serious death and injury motor vehicle crashes where criminal charges were proposed. His previous rank had been as an Inspector in charge Road Safety Task Force which in part involved the authorisation of traffic briefs of evidence for prosecution, and participating on road safety committees. Mr Sanders said that in 1987, he was in charge of a group called "the State Highway Task Force" that was established because of the government's concern about the "behaviour of commercial heavy vehicle drivers and...that group's role was to enforce and educate the road transport industry into what we regarded as our desire for them to comply with the legislation relating to trucks" T 271 25-30. Mr Sanders explained that his job was to "co-ordinate extensive blitzes, operations involving ...the transport industry" T 271 28-37. 11Mr Sanders gave evidence that he had served in all areas of the Victorian Police Force which included general duties through to highway patrol, motorbike squads and the accident investigation section. In all areas of his duties as a police officer, he had "involvement in enforcement of legislation relating to the behaviour of commercial heavy vehicle drivers": T 271 19-21 Mr Sanders is currently a member of the Victorian Coroner's Transport Industry Safety Group whose function is to look at "safety issues associated with transport and come up with [codes] of practice and mechanisms that might make the road transport industry safer": T 272 23-25. He had been a member of the Coroner's Group since 1997. Following his retirement from the Police Force, he had been a safety consultant to the road transport industry and had presented papers on matters of safety as it relates to the commercial vehicle industry. Mr Sanders' is a member of the Australian Trucking Association Truck Safe Industry Accreditation Council. 12Mr Glissan submitted that Mr Sanders was not an expert in driver behaviour nor did he have the specialised knowledge to enable him to proffer the opinions in his report. Furthermore, the opinions expressed about a reasonable and prudent driver involved the application of a legal standard and should not be admitted into evidence. Another criticism was that the report did not reveal the logical or intellectual process that lead Mr Sanders to arrive at the opinions expressed. 13The opinions expressed by Mr Sanders are not admissible unless they fall within s 79(1) Evidence Act 1995 which provides an exception to "the opinion rule" contained in s 76(1) Evidence Act. Section 79(1) is as follows: "If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 14In Dasreef Pty Limited v Hawchar [2011] HCA 21; [2011] CLR 588, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at [32]: "To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge." 15Mr Sanders' opinions in the passage that has been quoted at [6] above, were in response to a question that had embraced Mr Wyborn's expression of concern about the height of the load to Mr Luck. If any specialised knowledge was required for Mr Sanders' view that "the discussions with Mr Wyborn should have alerted Mr Luck to the probability that the load was over height" and if in doubt Mr Luck should have stopped and measured it, then it was in the field of driver behaviour. Mr Sanders' experience in the Police Force was not focussed upon an analysis of the behaviour of a driver of heavy commercial vehicles, but upon the prosecution of offenders and the enforcement of legislation. His subsequent experience has not been directed at the reasons that such a driver might behave in a particular way. In any event, I do not think that any specialised knowledge was required for these opinions that were expressed in the report. They were plainly a matter of common sense. Although evidence of an opinion is not inadmissible only because it is about a matter of common knowledge, s 80(b) Evidence Act, the opinions expressed by Mr Sanders cannot be described as being "wholly or substantially" based on specialised knowledge. The same observations may be made about Mr Sanders' opinions concerning the stopping of the vehicle at [7] - [8] above. 16The insurers bore the onus of demonstrating that Mr Sanders had specialised knowledge based on his training, study or experience that enabled him to express an opinion as to how Mr Luck ought to have behaved when driving the prime mover and trailer that was carrying the excavator. Furthermore, the insurers were obliged to show that Mr Sanders' opinions about Mr Luck's behaviour were wholly or substantially based on that knowledge. I was not persuaded that the insurers discharged either of these requirements. 17The opinions proffered by Mr Sanders about a "reasonable and prudent driver" in para 3.2.1 and in para 4.1.1 as to the complete disregard of "the obligations that would be expected of a reasonable person" involve the application of a legal standard. Section 80(a) Evidence Act abolished the rule that testimony could not be given upon the ultimate issue but the care with which s 80(a) should be approached, was emphasised by Mason P in R v GK (2001) 53 NSWLR 317 at 326-367, when his Honour said: "judges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions." (footnotes omitted) 18In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Beazley JA considered at [69] that the question whether Bostik owed a duty of care was a question of law to be determined having regard to the facts and circumstances of the case. Evidence could be given "about systems of work, including such matters as what tasks were undertaken, who gave instructions to whom; and what safety measures were in place." However, evidence could not be given "as to what an entity's "legal obligation" was. In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Court's "Allstate" Judgment No 33) (1996) 64 FCR 79 Lindgren J observed at 83 that: "...evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible." (emphasis in original) 19It was no part of Mr Sanders' function to opine that Mr Luck had failed to exercise the due care of a reasonable and prudent driver or that he had completely disregarded the obligations that would be expected of a reasonable person. The opinions that ultimately lead to these concluded views were not based on any specialised knowledge and were in reality no more than submissions as to how he considered that Mr Luck had breached his duty of care. The vice in Mr Sanders' approach is demonstrated in the passage quoted at [8] above, when he said: "there is really no excuse for any professional driver to be unaware of what his/her legal requirements when driving a truck are." 20In my opinion, these views of Mr Sanders are simply irrelevant as they could not rationally affect (direct or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 Evidence Act. 21For these reasons, the report was not admitted. ********** 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. Decision last updated: 25 September 2013