Roads & Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 6) [2013] NSWSC 1514

Supreme Court New South Wales

Medium Neutral Citation: Roads & Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 6) [2013] NSWSC 1514 Hearing dates: 15 October 2013 Decision date: 15 October 2013 Jurisdiction: Common Law Before: Price J Decision: Report admitted into evidence Catchwords: Evidence - admissibility - whether discretion to exclude should be exercised. Legislation Cited: Evidence Act 1995 s 135 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: In his first supplementary report, Mr Wiltshire writes that he undertook computer simulations to estimate the reactions developed by the excavator's boom hitting the girder at the northern end of the bridge's lift span. He recounts that in running the computer simulations he used the computer resources of the Pacific ESI Pty Ltd and was assisted by Alan Chhor of Pacific ESI, who was responsible for setting up the computer model and running the software used to simulate various impact scenarios. 2Mr Glissan QC contends that without material from Mr Chhor as to the part that he played in the exercise undertaken by Mr Wiltshire the report should not be admitted, as the plaintiff cannot evaluate and test the cogency of the conclusions expressed by Mr Wiltshire. 3On the other hand, Mr Deakin QC points out that Mr Wiltshire was responsible for, inter alia, checking the correctness of the inputs to the computer model and the reliability of the output. 4Section 135 Evidence Act 1995 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". 5The danger of unfair prejudice in the present circumstances may only arise, in my opinion, if there is a challenge by the plaintiff to the software used to simulate the various impact scenarios. This software is apparently known as PamCrash. This is a very different case to that referred to by Mr Glissan in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114, where the evidence of the expert was dependent upon particle size analyses and a chain of possession, which were not in evidence. 6In the present matter, whilst Mr Wiltshire makes use of the PamCrash software, he was responsible for the impact conditions to be simulated, for the interrogation and interpretation of the analysis results, the checking of the correctness of the inputs to the computer model and the reliability of the output. 7I did not understand from Mr Glissan's submissions that there is a challenge to the PamCrash software itself. 8Accordingly, the probative value of the evidence, which is significant, is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff. 9The supplementary report is admitted into evidence as exhibit CD 16.