District Court New South Wales Medium Neutral Citation: Matte v Delandro (No 1) [2018] NSWDC 233 Hearing dates: 21 – 23 May 2018 Date of orders: 23 May 2018 Decision date: 23 May 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: Reject the tender of Mr Hall's report of 14 August 2017 and the tender of exhibit VD1. Catchwords: CIVIL – EVIDENCE – Expert reports – Whether report is admissible as expert evidence Legislation Cited: Evidence Act 1995 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Davie v City of Edinburgh 1953 SC 34 HG v The Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Category: Procedural and other rulings Parties: Karm Sabah Matte (Plaintiff) Yvonne May Delandro (Defendant) Representation: Counsel: Mr R McIlwaine SC (Plaintiff) Mr J Catsanos (Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2017/50922 Publication restriction: Nil Judgment 1. HIS HONOUR: The defendant seeks to rely upon a report made by Mr Christopher Hall on 14 August 2017. The report appears to have been served upon the plaintiff's solicitors on 28 August 2017. Mr Hall is an engineer. He has for many years been involved in the field known as "Accident Reconstruction." On Monday afternoon the defendant tendered the defendant's "Tender Bundle." It included the report of Mr Hall. Subject to any proper objection, I marked that as exhibit 1. I had the opportunity of reading that exhibit on Monday afternoon and on Tuesday, yesterday, I drew attention at the re-commencement of the hearing to what I thought were deficiencies in the form of Mr Hall's report. 2. Seeking to address those perceived deficiencies, the defendant's lawyers asked Mr Hall to provide the calculations behind the opinions expressed in his report. Those calculations have been marked exhibit VD1. The plaintiff objects to the whole of Mr Hall's report previously marked exhibit 1 as well as to the further handwritten notes which are exhibit VD1. 3. It is important to bear in mind the relevant legal principles. The locus classicus in this area of law is contained in the judgment of Lord President Cooper in Davie v City of Edinburgh 1953 SC 34. Commencing at 39, his Lordship said this: "Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." 1. His Lordship's dictum was quoted with approval by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59]. Although the case decided by the Lord President arose under Scots law, his Honour's dictum has been acknowledged to represent the common law. At [83] Heydon JA pointed out that expert evidence in this State is now primarily regulated by the Evidence Act 1995. His Honour went on to set out the relevant pieces of the Evidence Act. His Honour then cited the decision of the High Court of Australia in HG v The Queen (1999) 197 CLR 414 at 427, in particular the reasons of Gleeson CJ between [39] and [44]. His Honour Heydon JA then continued thus: "85. In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise." 1. Subsequently, in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; the correctness of the paragraph I have just quoted from Makita v Sprowles was held by the High Court to be a correct exposition of law. 2. When I first read Mr Hall's report its deficiencies became clear to me. For example, par 7.11 of Mr Hall's report says this: "In the case of the Yamaha motorcycle, it was assumed that it slid to rest over a distance of 2.6-2.8 metres. A sliding motorcycle fitted with a full fairing, such as the Yamaha R1, will typically decelerate while sliding at a rate of 0.3-0.5g, with the higher levels normally associated with more pronounced surface markings (as opposed to scuffing from the fairing). In this incident, the footrest engaged heavily with the road surface, and consequently I have assumed a level of 0.4g when taking into account the road slope. It was estimated that the post-impact speed of the motorcycle was approximately 15-17kph." The report does not make explicit how the witness came to that view of the post-impact speed of the motorcycle which had been ridden by the plaintiff. In exhibit VD1 a calculation is provided to explain that. At the top of p 2 of that exhibit is contained this matter: "Motorcycle slides 2.8 metres at a=0.41g (4% downhill). Therefore, post-impact [speed] of motorcycle = Which equals 4.74 metres per second. Which equals 17 kilometres per hour." I can understand the 2.8. It represents the maximum distance over which the witness assumed that the motorcycle slid. I can understand 0.41, that is given at the commencement of that formula, but again I do not know what it represents, other than some portion of the speed of gravity. I do not know the significance of the 9.8. Furthermore, what the formula represents has not been stated. 1. It is normal, since Makita v Sprowles was decided, for an expert to state the formula, then to explain what each symbol in the formula stands for and then to give the value of each of those symbols and then set out the formula with the values in it, leading to a mathematical result. Here, the formula has not been explained. 2. Furthermore, all of the calculations contained in exhibit VD1 do not set out the formula or formulae relied upon, nor when a symbol is used is its meaning identified. 3. Furthermore, when one goes back to par 7.11, which I have quoted, one will see there is an assumption used to explain the distance that the Yamaha motorcycle slid before coming to rest. I do not know, nor in particular does learned counsel for the plaintiff know, where that distance commenced. I thought that it might be from either the end of a tyre mark shown on the police survey, exhibit 8, or from the commencement of scrape marks shown on the same survey. But when I apply my ruler and the scale given on the survey, neither of those things is at all apparent. How Mr Hall arrived at the assumption at the commencement of para 7.11 of his report is not at all clear and must be the subject of explanation. However, that explanation is required to be given in the report. It has not been. 4. Despite the vigorous opposition of Mr Catsanos to the objection taken by the plaintiff and his vigorous assertion that everything that has been required to be explained in Mr Hall's report has been explained in the combination of Mr Hall's original report and exhibit VD1, it is not at all apparent to me and, in my view, not explicit in the report, the formula or formulae that he used and a number of other assumptions. One might glean from the combination of the original report and exhibit VD1 certain things. However, this is a case in which the plaintiff has not retained any expert, as far as I am aware, and like Mr McIlwaine SC, if I were acting for the plaintiff I would not be able to cross-examine the witness properly because there is much that is still unexplained in his report, meaning the original report of 14 August 2017 and the supplementary workings, if I may use that expression, exhibit VD1. 5. Exhibit VD1 is, in itself, not complete because, while it provides the workings so that one who may know something about mathematics could indicate whether the workings are correct, it does not set out what the formulae are. On the second half of p 2 of exhibit VD1, after providing an "X", the calculation to provide the speed of the plaintiff after the impact, some 30kph, Mr Hall sets out the "conservation of momentum in X direction". "X direction" is the direction that would have been taken by the defendant's motor car had the accident not occurred. However, after a large number of calculations, for which the formulae have not been given, the calculations conclude that the speed of the motorcycle at the time of impact was most likely between 70 and 80 kph. However, the motorcycle was in fact travelling in Y direction, according to figure 4, contained under par 7.9 of Mr Hall's primary report. This may all be perfectly clear to Mr Hall and it might be perfectly clear to other engineers, but it is not at all clear to me and therefore, I can accept that it is not at all clear to Mr McIlwaine. 6. Furthermore, what is not made explicit is the reasoning process adopted by the witness. Mr Catsanos submits that what is being required of Mr Hall would make expert reports extremely lengthy and perhaps turgid. However, it is very common, as I have earlier mentioned, for reports of this nature, since Makita v Sprowles was decided, to include any formula or formulae used, the meaning of symbols in those formulae and the values explicit to those symbols in the case in question. That is not a difficult thing to do, and allows counsel to check the formula, for counsel to check the mathematics, and it allows other experts to comprehend what the expert has done. 7. As Heydon JA makes clear in [85] of his reasons in Makita v Sprowles one of the things which must be stated is the opinion with a demonstration or examination of the scientific or other intellectual basis of the conclusions reached. And that has not been made explicit in this case by the quotation of the appropriate formulae and the matters to be taken into account in the application of those formulae, the facts of the case. If those matters are not made explicit, the report is not admissible according to Heydon JA (as he then was). 8. Furthermore, we have reached the position where the report of Mr Hall was made on 14 August 2017, that is well into last year. Over eight months have elapsed since it was made. It was served on 28 August 2017, and nearly eight months have elapsed since that time. But to remedy the perceived deficiency it was necessary to generate exhibit VD1, but that was only given to learned counsel for the plaintiff at 3.18pm yesterday afternoon, and one can wholly accept that he is not in a position to test the opinion, and clearly exhibit VD1 could not have been, and has not been, served in accordance with the Rules or the Practice Note. 9. Reluctantly but for good reason, I therefore reject the tender of Mr Hall's report of 14 August 2017 and the tender of exhibit VD1. ********** 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: 29 August 2018