Supreme Court New South Wales Medium Neutral Citation: Roads & Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 5) [2013] NSWSC 1504 Hearing dates: 30 September 2013 Decision date: 15 October 2013 Jurisdiction: Common Law Before: Price J Decision: Reports admitted into evidence. Catchwords: Evidence - admissibility - whether opinions expressed were admissible - whether discretion to exclude should be exercised. Legislation Cited: Evidence Act 1995 s 55(1), s 76(1), s 79(1), s 80(a), s 135 Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 Category: Interlocutory applications 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 30 September 2013, I admitted into evidence the reports of Brian Pearson (ex CD 12 and ex CD 13). Mr Glissan QC who appears for the plaintiff objected to the tender of the reports, but was overruled. I now provide reasons for my decision. 2The first ground of objection to the tender was that Mr Pearson was not qualified to express the opinions proffered in the report. The main thrust of this argument was that the opinions expressed went beyond those of an engineer. The second ground of objection was that the reasoning process or assumptions supporting the opinions are not revealed. Another objection was that Mr Pearson had applied legal tests of apportionment and of betterment which were for the trial judge and not an expert. Mr Glissan also submitted that he was unable to test Mr Pearson's opinions which was unfair to the cross-examiner. He contended that the reports, if otherwise admissible, should be excluded under s 135 Evidence Act 1995. 3The 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." 4In Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 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..." and at [37]: "It should be unnecessary, but it is none the less important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles 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, 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." (footnotes omitted) 5The 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])." 6Mr Pearson was engaged by the first, second and third defendants (the insurers) to provide opinions regarding (ex CD 12 p 4, ex CD 13 p 34): "(a) The costs relating to repairs for damage to the Hexham Bridge identified in Plaintiff's amended particulars of damage and whether such repairs claimed for were consistent with impact by the excavator being driven southbound by the defendant on 15 April 2003; (b) Identifying the extent of any costs claimed for repairs to the bridge for pre-existing damage prior to 15 April 2003; (c) The influence of the repairs stated to be required in Plaintiff's amended particulars of damage by the pre-existing damage to the incident on 15 April 2003; (d) To take into consideration in the formulation of my views on the costs the various reports provided by the experts as identified in Appendix 1; (e) Any other issues I might have regarding the matter of costs." 7Mr Pearson's curriculum vitae is detailed in Appendix 2 of the reports. His experience extends beyond civil engineering and the design, construction and project management of bridgeworks. He is a senior loss adjuster whose adjusting experience over 24 years has covered a wide range of claims including those associated with bridges. In my opinion, Mr Pearson demonstrated that he has specialised knowledge based on his study and experience that enables him to provide the opinions sought. The plaintiff's challenge to Mr Pearson's expertise fails. 8Mr Pearson's evidence, if accepted, could rationally affect the assessment of the probability of the existence of facts in issue in the case, namely the damage caused to the bridge as a result of the defendant's accident, the cost of that damage, the extent of the pre-existing damage and any allowance that should be made for pre-existing damage in determining the plaintiff's claim for damages: s 55(1) Evidence Act. 9The second ground of objection was that Mr Pearson had not revealed the reasoning process or assumptions that support his opinions. Mr Pearson details in Appendix 1, categories A - F (ex CD 12, ex CD 13) the material utilised to compile his reports. He identifies at par 3.1 (ex CD 12), the amended particulars of damage that the plaintiff has filed in the proceedings and at pars 3.6 - 3.12 the assumptions made as to the circumstances of the defendant's accident and as to the existence of pre-accident damage. Mr Pearson then individually refers in section 4.0 to each claimed item which the insurers acknowledge received some damage in the defendant's accident. When discussing Item 1 - Emergency Repairs, his references to the RTA paper entitled "Report of Truck Impact Damage", Worley's report of 12 May 2003, and Professor Ansourian's report reveal the facts and reasoning upon which his opinions expressed in pars 4.5 and 4.6 rest. 10Mr Glissan contended that there was no basis for the opinion expressed at par 4.8 that "[i]n the writer's experience design costs 1) have never exceeded construction costs." The foundation for this opinion is Mr Pearson's extensive experience as a civil engineer and loss adjustor. Mr Glissan was also critical of opinions expressed by Mr Pearson at par 4.13 and at par 4.19. In my opinion, it is plain that Mr Pearson is suggesting that these costs should be divided in proportion to the damages for which the defendant is found to be responsible following the defendant's accident and the pre-existing damage. 11I do not think it is necessary for present purposes to consider each item in the reports but I will refer by way of further illustration to Item 8 - Structural Bridge Repairs. Mr Pearson identifies in par 4.22 the documents detailing the extent of structural repairs required to the bridge and from these documents prepares schedules of damage which delineate the damage to the bridge before and after the defendant's accident. His evidence is presented in a form which makes it possible to determine that the opinions expressed within pars 4.29 - par 4.44 are substantially based on his specialised knowledge. In my view, Mr Pearson's reports disclose the reasoning process and assumptions that support his opinions. 12Another argument advanced by Mr Glissan was that some of the opinions expressed by Mr Pearson involved the application of a legal standard. Mr Glissan referred to the statement in "the Prologue" (ex CD 12 p i): "These items were either previously damaged or are matters of an improvement nature." Mr Glissan understood that to mean "betterment". He referred further to references in the report to "adjustment" being made in amounts claimed for damages. This was said to raise the issue of apportionment which was a matter for the judge and not an expert. 13Section 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] NSWCCA 413; (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) 14I do not consider that the opinions proffered by Mr Pearson on improvements to the bridge or concerning adjustment impinge upon the decisions that I must make. What is ultimately made of his opinions depends upon all of the evidence in the case that is relevant to these issues. 15The report is admissible unless excluded under s 135 Evidence Act. 16Mr Glissan submitted that the plaintiff was prejudiced by the "complete absence of proper, logical, structured reasoning and the failure to disclose either the qualifications of the expert to propound the opinions of his reasoning to enable it to be tested would warrant its exclusion under 135." (T 30/9/13 T1408 L 43-45). He contended that there was little probative value in the report. 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." 19I do not accede to the plaintiff's request to refuse to admit the report. When dealing with each item that forms part of the plaintiff's claim for damages, Mr Pearson extracts from the material in Appendix 1 the assumptions he relies on and explains how he arrives at his opinions. His qualifications as an engineer and loss adjustor are found in Appendix 2. Mr Glissan's ability to cross-examine Mr Pearson is not impeded. There is no danger that his evidence might be unfairly prejudicial to the plaintiff. The probative value of the evidence is not outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff. 20Another matter raised by the plaintiff was that Mr Pearson was not at the expert witness conclave and his report was not admissible absent leave. However, the orders made by McCallum J on 28 June 2012 disclose that the first cross-defendant was to serve further expert evidence by 2 July 2012. Accordingly, there is no substance in this complaint. 21The reports were admitted into evidence and are exhibits ex CD 12 and ex CD 13. ********** 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: 15 October 2013