Supreme Court New South Wales Medium Neutral Citation: Roads & Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 4) [2013] NSWSC 1420 Hearing dates: 18, 19 September 2013 Decision date: 24 September 2013 Jurisdiction: Common Law Before: Price J Decision: Report admitted into evidence. Catchwords: Evidence - admissibility - whether opinions expressed were admissible - whether discretion to exclude should be exercised. Legislation Cited: Evidence Act 1995 s 76(1), s 79, s 135 Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 Texts Cited: Stephen Odgers, Uniform Evidence Law, 10th ed (2012) 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: Counsel: Mr Glissan QC + Mr Manion (plaintiff) Mr Deakin QC + Mr Stockley (cross-defendants) Solicitors: Mr J Saxton & Mr J Davis Robert Saxton Primrose Dunn solicitors (plaintiff) Mr B Hedges & Ms L Antoun Walker Hedges & Co solicitors (cross-defendants) File Number(s): 2009/293003 Judgment 1HIS HONOUR: On 19 September 2013, I admitted into evidence a report of Professor Ansourian. Mr Deakin QC who appears for the first, second and third defendants (the insurers) objected to the tender of the report, but was overruled. I now provide reasons for my decision. 2The principal basis of the objection was that Professor Ansourian had not identified the key assumptions from the four volumes of material that enabled him to express the opinions in the report. Mr Deakin cited Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and HG v The Queen [1999] HCA 2; (1999) 197 CLR 414. 3Another argument was that Professor Ansourian had limited experience in "dynamic forces that are brought to bear as a result of a truck impact" which was said to be the relevant area of dispute in the case (T18/09/13 T1224 L11-12). Mr Deakin further submitted that should the court conclude that s 79 Evidence Act 1995 was satisfied, the report should be excluded under s 135 Evidence Act. 4The opinion rule 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: s 76(1) Evidence Act. An exception to the opinion rule is found in s 79(1) Evidence Act: "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." 5In Dasreef Pty Limited v Hawchar, 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..." and at [37]: "It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles [2001) 52 NSWLR 705 at 743-744 [85]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (2001) 52 NSWLR 705 at 744 [85], that "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', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered." 6The plurality judgment in Dasreef Pty Ltd v Hawchar provides an authoritative statement of the principles governing s 79(1). A helpful distillation of the propositions that can be derived from the plurality judgment is provided by Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209]: "Section 79 assumes that opinion evidence is tendered to prove the existence of a fact. It is necessary to identify why the evidence is relevant: that is, why the evidence, if accepted, can rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding (Evidence Act, s 55(1)) (at [31]). To be admissible under s 79(1), the evidence must satisfy two criteria. First, the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the opinion expressed by the witness must be wholly or substantially based on that knowledge (at [32]). It follows that the party tendering an expert report must demonstrate that the author has specialised knowledge based on training, study or experience that enables him or her to express an opinion on a matter that is relevant to an issue in the proceeding. The tendering party must also be able to demonstrate that the opinion was wholly or substantially based on that knowledge (at [35]). These requirements explain why the opinion should be presented in a form which makes it possible to determine whether the opinion is wholly or substantially based on specialised knowledge (at [36], citing HG v The Queen [1999] HCA 2; 197 CLR 414, at 427, per Gleeson CJ). Ordinarily, the evidence of the expert must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is substantially based applies to facts assumed or observed to produce the opinion propounded (at [37], citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, at [85], per Heydon JA). A failure to demonstrate that an opinion is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight (at [42])." 7It appears that for Professor Ansourian's evidence to be admissible under s 79 of the Evidence Act, the plaintiff must demonstrate that he has specialised knowledge based on his training study or experience that enables him to express an opinion that is relevant to an issue in the case. The plaintiff must also demonstrate that the opinion was wholly or substantially based on that knowledge. The evidence must also be presented in a form which reveals the facts and reasoning on which the opinion rests: Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 per Schmidt J at [176]. 8It is unnecessary to detail Professor Ansourian' s extensive curriculum vitae. Mr Deakin's challenge to the professor's expertise was confined to the area of dynamic forces on steel structures as a result of impacts. During the voir dire, Professor Ansourian's evidence on this topic included the following: "Q. Any investigation of vehicles, perhaps substantial vehicles travelling at speed into fixed structures that you can recall that you were called upon to measure? A. No, I don't recall. Q. In particular, any experience at all in high impact analyses and the effect that high impacts can have on steel structures, such as the Hexham Bridge? A. When you are teaching dynamics, then that sort of analysis is included and it is paramount in that subject so, you know, you deal with dynamics in the same way that you deal with statics; following Newton's Laws, I repeat. Q. Do you agree that high impact analyses especially do give rise to special considerations in determining what the effect of an impact is? A. No, I don't." (T18/09/13 T1210 L18-31) 9Professor Ansourian gave evidence of his extensive investigation in 1991 of a coal reclaimer which "collapsed due to plasticity actions, failure of components and some dynamic effects" (T18/09/13 T1209 L46-47). In cross-examination following the admission of the report, he explained that due to "jet lag", he failed to mention two major dynamic analyses he had undertaken being the Newcastle earthquake Workers Club collapse and an explosion analysis at Port Botany (T19/09/13 T1284 L5-14). 10In my opinion, Professor Ansourian demonstrated that he has specialised knowledge based on his study and experience that enables him to carry out a dynamic analysis of the truck impacts and express opinions on the dynamic forces on steel structures as a result of those impacts. As such, the insurers' challenge to Professor Ansourian's expertise fails. 11Turning to the main thrust of Mr Deakin's objection, a close analysis of the Professor's report reveals the facts and reasoning on which his opinions rest. At page 3.2, the Professor identifies the Reference Documents upon which his opinions are founded. Documents 1-7 are in evidence and are relevant to the issues in the case. When considering damage to the bridge prior to the accident, Professor Ansourian makes particular reference to document 1 (the Parvez Shah or Fok report) and expressly mentions each item of pre-existing damage. Professor Ansourian identifies documents 2,3 and 4 as the sources of his exposition of the damage sustained in the accident which is recounted at pages 7-12 of the report. In my opinion, it is unnecessary for Professor Ansourian to make specific reference to each item of that damage when expressing his opinions on the repairs following the collision of 15 April at pages 4-7 of the report. 12The assumptions and reasoning upon which Professor Ansourian based his opinions on the suitability and extent of the repair measures are set out at pages 12 -14 of the report. The same observation may be made on the topics of Dynamics of Tower Span, Dynamics of Lift Span and Lift Span Warp that occupy pages 15-22 of the report. 13Mr Deakin was critical of the Conclusions expressed at pages 23 and 24 of the report. He submitted that the foundations for these opinions had not been laid in the body of the report. Mr Deakin specifically objected to conclusion 7 and part of conclusion 8 which resulted in that material not being read. Conclusion 1 is not admissible, but the remaining paragraphs summarise what had been stated by Professor Ansourian in the body of the report. It seems to me that the criticism of the remaining conclusions is unfounded. The report is admissible unless excluded under s 135 of the Evidence Act. 14The focus of Mr Deakin's application for the exclusion of the report by the exercise of the discretion under s 135 was on the following words that appear at section 10 on page 23: "The investigation was based on supplied documentation, an inspection of the repaired bridge, and a conference with officers of the RTA." 15Mr Deakin contended that the court was in as good a position to read the documents as the expert, that when Professor Ansourian inspected the bridge it had been repaired and the conference had not been with RTA officers but with the RTA lawyers. Mr Deakin argued that as privilege had been claimed, he could not explore what may have been derived by the Professor from that conference and the insurers were unfairly prejudiced. 16During his evidence on the voir dire, Professor Ansourian recalled that he had not met with RTA representatives but with Mr Glissan, his assisting counsel and solicitors. 17Section 135 Evidence Act relevantly provides: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party..." 18The term "probative value" is defined in the Dictionary to the Evidence Act as follows: "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 19There is no substance in the contention that the court was in as good a position to read the documents as the expert. These were the reference documents upon which Professor Ansourian based his opinions. The Professor's inspection of the bridge after it had been repaired is unsurprising and certainly could not engender any prejudice to the insurers, let alone unfair prejudice. Discussions between senior counsel and an expert are not unusual and do not create an unfair prejudice because of an inability to cross-examine upon what was said at the conference. 20Mr Deakin directed the court's attention to page 377 [1.3.4340] of Stephen Odgers, Uniform Evidence Law, 10th ed (2012) and made further submissions as to the exclusion of the report. He mentioned the degree of reliability of the particular field of expertise; whether the facts observed by the expert had been identified and proved; and the reliance by the expert on what he had been told by Mr Gooley as to the description of the accident. 21I have already referred to Professor Ansourian's expertise, and the identification by him of the facts and reasoning on which his opinions rest. Contrary to Mr Deakin's submission, Professor Ansourian did not give evidence on the voir dire that he had relied on Mr Gooley for the circumstances of the accident. Professor Ansourian details at page 20 of the report the assumptions as to the speed of the impacting vehicle and the length of contact that he used in carrying out his analysis. 22The probative value of Professor Ansourian's evidence is not outweighed by the danger that the evidence might be unfairly prejudicial to the insurers. 23The report was admitted into evidence and is exhibit VVV. ********** 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