Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2013] NSWSC 1646

Supreme Court New South Wales

Medium Neutral Citation: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2013] NSWSC 1646 Hearing dates: 24 October 2013 Decision date: 24 October 2013 Before: Adamson J Decision: Allow the report of Professor Byard dated 5 January 2013 Catchwords: EVIDENCE- admissibility of expert report- whether expert can opine as to safety of product without testing- expert can reason as to qualities based on experience- whether reasons sufficient to support conclusions- whether expert biased- opinion based on experience Legislation Cited: Evidence Act 1995, s 79 Cases Cited: Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Category: Interlocutory applications Parties: Born Brands Pty Ltd (First Plaintiff) Hayley Birtles-Eades (Second Plaintiff) Sally Birtles (Third Plaintiff) Nine Network Australia Pty Ltd (First Defendant) Gabriella Rogers (Second Defendant) Georgie Gardener (Third Defendant) Representation: Counsel: CA Evatt and RKM Rasmussen (Plaintiffs) TD Blackburn SC and ATS Dawson (Defendants) Solicitors: Beazley Singleton Lawyers (Plaintiffs) Johnson Winter and Slattery (Defendants) File Number(s): 2011/115199 Publication restriction: Nil

Judgment 1Mr Evatt, who appears on behalf of the plaintiffs, has objected to the tender of Professor Byard's report dated 5 January 2013 on several bases. First, that Professor Byard has not been established to be qualified on the testing of products used as sleep positioners, including Babywedge. Secondly, that he is not open-minded and has displayed a bias against the plaintiffs' product, Babywedge. Thirdly, he has not given sufficient reasons to support his opinion. Fourthly, his conclusions about the quality of Babywedge are outside the field of his expertise. Fifthly, he has made assumptions without sufficient basis. 2These objections were formulated after Mr Evatt had asked Professor Byard several questions which were put variously as part of a voir dire on his expertise and also as cross-examination. Accordingly I had an opportunity to hear Professor Byard's responses to the allegations that he lacked relevant expertise and that he was not acquainted with the Babywedge product. 3I am satisfied that none of these objections ought be upheld. 4First, the plaintiff submitted that Professor Byard was not qualified on the testing of products used as sleep positioners and has no experience with the Babywedge product itself. Section 79 of the Evidence Act 1995 provides that if a person has specialised knowledge based on the person's training, study or experience the opinion rule does not apply to evidence of the opinion of that person that is wholly or substantially based on that knowledge. 5I am satisfied that Professor Byard has considerable experience in ascertaining the cause of death in infants by suffocation. He has been present at a number of death scenes and taken part in, or been aware of, autopsies on young infants who have apparently died of suffocation, or other unknown cause which may be consistent with suffocation. 6Live testing to ascertain the susceptibility of young infants to death by suffocation through various products cannot, by its nature, be carried out. However testing is not the only means of scientific inquiry, which can proceed from deduction from basic principles and observation. I am satisfied that Professor Byard is able to express an opinion on the characteristics of such products notwithstanding the absence of live, or any other, testing. I am satisfied by the expression of his opinion that he is able, by experience and observation, to apply his expertise to reason as to the respective qualities of such products, including Babywedge and to express an opinion on those matters. 7Mr Evatt cross-examined Professor Byard about features of the Babywedge that were said to distinguish it from other baby devices, including its composition from open cell foam and its detachable bolsters which are attached by Velcro, perpendicular to the line of the bolster. Although Professor Byard said that these features did not alter his opinion that Babywedge is potentially dangerous, he admitted that testing would be required to ascertain and quantify the relative benefits of these features and that he was not qualified to carry out such tests. I do not consider that these matters affect the admissibility of Professor Byard's opinion. 8The second objection was that Professor Byard was not open-minded. It is apparent from Mr Evatt's cross-examination that Professor Byard is very concerned about the use of sleep positioners or other equivalent baby devices for young infants. In his opinion, whilst such devices may assist some infants to sleep and provide some relief from reflux, they carry an unacceptable risk of suffocation which can lead to death. Professor Byard explained that he is an opponent to such devices on the basis of his view that their use carries an unacceptable risk. 9I do not consider that Professor Byard's opinion means that he is not open-minded or that he is biased, but rather that he has come to a considered opinion after years of relevant experience. This is not a matter that ought lead to the rejection of his report. 10The third objection is that he has failed to give sufficient reasons in his report. Mr Evatt relied on Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705. Although the reasoning in Professor Byard's report has been augmented by considerable explanation in the course of his examination on the voir dire and cross-examination by Mr Evatt which were conducted together, I am satisfied that the reasons in the report are ample to explain the conclusions which he has reached. In my view, there is none of the characteristics of Professor Morton's evidence that were found to lead to its inadmissibility in Makita. To borrow the words of Heydon JA in Makita at [87], Professor Byard's report is an expression of expert opinion rather than a series of oracular pronouncements. He does not, in my view, usurp my function, which is relevantly to determine the truth or falsity of the plaintiff's imputations and the contextual imputations. I regard his report and evidence as providing me with the necessary scientific criteria to test the accuracy of the conclusions. I regard his evidence as intelligible. It contains references to materials, including several scientific papers and other publications. 11The fourth objection is that Professor Byard has expressed an opinion about the quality of Babywedge which is outside his field of expertise. 12In the course of the questions asked by Mr Evatt, Mr Evatt asked some questions to which Professor Byard himself took some exception, in that they potentially fell outside his area of expertise, including questions relating to the materials from which the two Babywedges in evidence were constructed and the relative qualities of the foam and the covering material. Nonetheless Mr Blackburn, who appears for the defendant, did not object to these questions and in my view it was open to Professor Byard to express a conclusion, albeit a qualified one, having regard to the limitations which he declared as to his expertise in that matter. 13The fifth objection is that Professor Byard made assumptions, including about Babywedge and other products, without sufficient basis. 14The general tenor of Professor Byard's evidence is that there are certain characteristics of sleep positioners which Babywedge also exhibits. Photographs of the sleep positioners are in evidence and I have two actual Babywedge products in evidence. Professor Byard did not have the manufacturer's specifications for each the other sleep positioners or for the two versions of Babywedge that are in evidence. Nonetheless I consider that the assumptions he made were reasonable assumptions and reasonable inferences that could be drawn by an expert, such as Professor Byard, having regard to the information he had as to these products. 15I allow the report of Professor Byard of 5 January 2013.