Supreme Court New South Wales Medium Neutral Citation: Menz v Wagga Wagga Show Society Inc (No 1) [2018] NSWSC 1446 Hearing dates: 25 September 2018 Date of orders: 25 September 2018 Decision date: 25 September 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [48] Catchwords: EVIDENCE – Expert opinion evidence – Whether opinions expressed were based upon the expert's specialised knowledge – Where expert had training and experience in matters involving the management of horses – Where expert purported to express opinions regarding the duties and responsibilities of personnel employed and/or officiating at agricultural shows – Where expert purported to express opinions regarding the behaviour of children – Where the expert report which was sought to be tendered was bereft of the exposition of any reasoning process explaining the opinions which were expressed and to which objection was taken – Evidence excluded Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Security and Investments Commission v Rich [2005] NSWSC 706 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 HG v R (1999) 197 CLR 414; [1999] HCA 2 Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 Category: Principal judgment Parties: Kerrie Anne Menz – Plaintiff Wagga Wagga Show Society Inc – Defendant Representation: Counsel: M Cranitch SC, M Inglis & R Wathukarage – Plaintiff J Sexton SC & D Kelly – Defendant Solicitors: Commins Hendriks Solicitors – Plaintiff Mason Black Lawyers – Defendant File Number(s): 2015/285709 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The plaintiff in these proceedings sues the defendant for damages she sustained in an incident on 28 September 2012 when she was effectively crushed by a horse that she was riding at the Wagga Wagga Agricultural Show. It is the plaintiff's case that her horse was "spooked" by a loud noise created by children in the near vicinity which caused her horse to fall. There appears little doubt on the evidence given thus far that the horse was spooked in that way, and that the plaintiff suffered significant injuries which are not (and are not likely to be) in issue. There is, however, a significant issue in terms of liability. 2. The plaintiff has qualified Mrs Debbie Smyth, a retired horse trainer and riding instructor, as an expert and has served a report dated 2 September 2016. Senior counsel for the defendant has taken objection to parts of that report. 3. In (1) of her report Mrs Smyth details her qualifications in the following terms: "My responses and comments are based on my past 20 years' experience as a competent horsewoman and past winner of many champion lady rider awards both at State and national level. In addition to my successful showing career, my horse management experience and skills were gained from a very early age growing up on a horse breeding stud property on which the family business of horse breaking, training, racehorse training, showing and riding skills were carried out." 1. In (2), Mrs Smyth lists a number of her achievements which, on any view of it, are extensive. They include: 1. being the leading horse trainer and riding instructor at a horse stud in New South Wales between 1977 and 1988; 2. being a trainer and rider of champion horses in many events over consecutive years; 3. representing her State at various Australian youth championships with consistent success; 4. acting as a judge at numerous agricultural shows; and 5. having trained and ridden horses, from first handling to school master level. 1. Ms Smyth's riding experience ranges from stock work to national competition. Her general experience includes racehorse training and educating, dressage, sporting events, trick riding and trail riding. As an adjunct to this experience, Mrs Smyth has trained and mentored students in all aspects of horse riding and management, and has instructed and conducted riding schools at pony clubs and adult riding clubs throughout Australia. She has also judged at agricultural and all breed horse shows throughout New South Wales, the Australian Capital Territory and Queensland, and has trained numerous metropolitan and regional race winners. 2. The specific objections taken by senior counsel for the defendant to Mrs Smyth's report are as follows. 3. Commencing at (7) under the heading "Executive Summary" Mrs Smyth said the following: "[7] I have outlined my findings below in my answers to your questions and it is my opinion that the incident involving Mrs Kerri Anne Menz falling from her horse and suffering catastrophic injury was both foreseeable and preventable. [8] Based on the information supplied to me by Commins Hendriks Solicitors, my knowledge and experience as a former successful show competitor and competent horse trainer/rider and instructor, it is my opinion that the Wagga Wagga Show Society ought to have provided stewards/marshals at the warm up/marshalling area and at the point of entry from the trotting track into the showground at the 2012 Wagga Wagga show. [9] In my opinion if the Show Society had provided these necessary stewards/marshals at these key points of the showground, it would have prevented the children from playing on the greyhound track. [10] In my opinion the Wagga Wagga Show Society neglected their duty of care to the horse competitors by not providing stewards/marshals at these key points. Furthermore, when any of the Show Society members became aware of the children playing in that area, they failed to take immediate action to remove the children from the, "No go zone." 1. Commencing at (24) under the heading "Answers to your questions," Mrs Smyth was asked: "Should the Show Society have taken steps to remove young children playing on the greyhound track near the warm up area?". 1. She responded: "Yes, the Show Society should have taken steps to remove the children from the warm up area." 1. At (25), in answer to the same question, she said: "A Show Society official or representative should have gone over to the children and removed them from the area or the announcer could have put it over the loud speaker for the children to leave the greyhound track and ask for the parents to come and collect the children. The children should not have been on the greyhound track in close proximity to the horses and they should have been removed." 1. Commencing at (26) she was asked: "Should there have been a marshal in the warm up area?". 1. She responded: "Yes in my opinion there should have been a marshal in the warm up station marshalling area." 1. At (27) she stated: "Therefore there would be a lot of horses within the warm up station marshalling area at any time and it can become very congested." 1. At (28) she stated: "The marshal is also there to oversee the safety of the competitors working their horses in the warm up area and ensure the horses are working in the same direction when the area becomes congested to avoid people running into each other." 1. At (29), having made reference to the size of the warm up area, she said: "Which would be approximately 40 horses within the warm up area at any time...therefore it is necessary for a marshal to be in attendance at all times to ensure the safe running of the warm up area." 1. Commencing at (30) she was asked: "Should a Show Society steward or marshal who was aware of the children playing on or near the greyhound track, jumping off the fence, kicking the sign and/or running under the butting have taken steps to remove them?" 1. She responded: "Yes, a Show Society steward or marshal who was aware of the children playing on or near the greyhound track, jumping off the fence, kicking the sign and/or running under the butting should have taken steps to remove the children." 1. At (31) she stated: "A Show Society steward or marshal would or should have seen the children playing on the greyhound track. There were four rings running in the showground which were all clearly invisible to the greyhound track and warm up area...the steward would have had plenty of time while a class was being judged and should have gone over to the children and removed them." 1. At (32) she stated: "Based on the information provided to me by Commins Hendriks Solicitors, there are four witness statements of Cassandra MacDonald, Jessica Post, Renee Huggard and Taylor Sutherland that all state that they saw the children playing on the greyhound track near the warm up area on both days of the show...the officials of the Show Society ought to have seen the children playing on the greyhound track and in particular the stewards in the four show rings ought to have seen the children playing in the "No go zone" and taken steps to remove them from that area." 1. At (33) she stated: "The Show Society should have appropriate people with horse experience and instructed them correctly in all aspects of safety working as stewards or marshals at the show." 1. At (34) she stated: "A Show Society steward ought to have seen the children and immediately remove them from that area once they became aware of the situation. Not only were the children not allowed to be there, the stewards should have foreseen the risk they were putting the competitors at when the children spooked the horses in that area." 1. At (35) she was asked: "Should the warm up area have been supervised?" 1. She responded: "Yes in my opinion the warm up station marshalling area should have been supervised. A steward in this area at a major show is essential to the smooth running of the ring events. The steward's duties are as follows: To ensure the safety of competitors in a confined crowed (sic); To ensure the horses were working in the same direction; To ensure the competitors knew where they had to go for each ring; To ensure the competitors were riding their horse in a safe manner; To ensure the show jumping competitors took the correct route to the show jumping area; To ensure the competitors did not ride their horses on the trotting track or the greyhound track; To ensure the general public did not walk out onto the trotting track, greyhound track or warm up area; To call up the competitors and have them marshalled ready waiting for the next class to go into the rings for judging." 1. At (36) she was asked: "Should children have been prevented from entering the warm up area?" 1. She responded: "Yes the children should have been prevented from entering the warm up area." 1. She continued at (37) and (38): "I have been asked to assume that there were no Show Society stewards supervising the warm up area. In my opinion there should have been a steward at the warm up station marshalling area and also at the point of entry of the trotting track. If there had been a steward at those key points, it would have been prevented the children crossing the trotting track to gain access to the greyhound track and warm up area. [38] In my opinion the Wagga Wagga Show Society neglected their duty of care to the horse competitors by not having a steward at the point of entry to the trotting track and the warm up station marshalling area. At a major show it is essential they have stewards overseeing the safe running of a warm up station marshalling area and to prevent the general public from entering those areas." 1. Under the heading, "Concluding comments" (commencing at (39)) Mrs Smyth said the following: "It is vital that the Show Society have properly instructed people working as stewards/marshals at the show in the horse areas for the smooth running of the horse events and for the safety of the competitors." 1. She continued at (40): "I further believe there should have been better signage on the greyhound and trotting track, signs saying, 'Keep off' or 'Keep out' or 'No public access'. The only signage I'm aware of is a greyhound track sign that states, 'No slipping past this point." 1. Finally, at (41) she said: "Based on the information provided to me by Commins Hendriks solicitors and my knowledge and experience as a former successful show competitor it is my opinion that if the Wagga Wagga Show Society had undertaken these normal safety precautions to have stewards/marshals at the key point of the showground being the point of entry for the trotting track and the warm up/marshalling area, the incident which resulted in catastrophic injuries to Mrs Kerrie Anne Menz would have been avoided." 1. Although the objections taken by senior counsel for the defendant were expressed in a number of separate propositions, they essentially boil down to two matters, namely that Mrs Smyth is not properly qualified to opine in respect of: 1. legal issues; and 2. matters not based upon her specialised knowledge. 1. It is submitted, in particular, that she is not qualified to express opinions on what agricultural show officials are there to do, or the behaviour of children. 2. Senior counsel for the plaintiff did not accept either of those propositions and submitted that when Mrs Smyth's report was read as a whole, and when her qualifications were taken into account, she was appropriately qualified to express all of those opinions. 3. There is absolutely no doubt that Mrs Smyth is an experienced horse person, and is experienced in (amongst other things) the behaviour of horses. The issue which arises is whether or not those opinions to which objection has been taken are based upon her field of specialised knowledge as I have outlined it. 4. The admissibility of expert opinion evidence is determined by reference to s 79 of the Evidence Act 1995 (NSW) which is in the following terms: 79 Exception: opinions based on specialised knowledge (1) 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. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 1. In order to satisfy the provisions of s 79 the opinion which is expressed must be based wholly or substantially upon the person's specialised knowledge: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]. The importance of that requirement was observed by Gleeson CJ in HG v R (1999) 197 CLR 414; [1999] HCA 2 at [44]: "Experts who venture opinions outside their field of specialised knowledge may invest those opinions with serious appearance of authority and legitimate processes of fact finding may be subverted." 1. His Honour went on to observe that the opinions of the expert in that particular case provided a good example of the mischief to which he referred, and which was to be avoided. 2. In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 the Full Court of the Federal Court of Australia observed (at [23]): "The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached, thus a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown by exposure of the reasoning process to be based on relevant specialised knowledge." 1. In the present case the specialised knowledge of Mrs Smyth is as I have outlined it. In my view, the opinions to which objection has been taken go substantially beyond her area of expertise. The report discloses nothing in terms of training, study or experience in, or specialised knowledge of, the organisation and staffing of agricultural shows, or the behaviour of children. 2. Moreover, there is no exposition of any reasoning process which demonstrates that the opinions to which objection has been taken are based upon any specialised knowledge. That, in my view, is because the specialised knowledge which would allow a witness to express such opinions is not knowledge which Mrs Smyth possesses. 3. In the event that the objections were upheld, senior counsel for the plaintiff foreshadowed an application to adduce further evidence of Mrs Smyth's background and experience in order to provide a proper evidentiary basis for the admissibility of the opinions in question. Senior counsel submitted that in seeking to take that course, he was not proposing to add to the substance of the report, but was simply seeking to supplement what had already been stated in it. Senior counsel for the defendant objected to that course. 4. Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("the Rules") is in the following terms: 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties: (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 1. In my view, the circumstances of the present case fall squarely within r 31.28(3)(c). I do not accept that Mrs Smyth's report contains the substance of the matters which are now sought to be adduced in evidence. What is sought to be adduced is further evidence to render the opinions in question admissible. 2. Further, oral evidence‑in‑chief of an expert cannot be permitted except by leave of the Court. Under r 31.28(4) leave is not to be granted unless I am satisfied that there are exceptional circumstances that warrant it. The term "exceptional circumstances" is not defined in the rules and accordingly it must be given its ordinary meaning. Each case must be determined on its own facts, the overriding consideration being the just determination of the proceedings: Australian Security and Investments Commission v Rich [2005] NSWSC 706. 3. For a number of reasons I am not satisfied that the circumstances of the present case are properly regarded as exceptional. 4. Firstly, and as I have already noted, the report of Mrs Smyth is dated 2 September 2016. That is almost two years ago. There has been ample time for the plaintiff's representatives to address any perceived shortcomings in the report by the provision of a further report if that was sought to be necessary. 5. Secondly, these issues have arisen because the defendant has taken what I have determined to be a proper and legitimate objection to parts of the report of Mrs Smyth. That is hardly an unusual course. It is obviously not uncommon in any litigation for one party to object to the evidence of the other. There was no direction in the present case of which I have been made aware which required the defendant to foreshadow its objections at some earlier time. 6. Thirdly, if I were to grant leave, it would place the defendant in a situation where it was faced with additional evidence, of which it was not previously on notice, and which it would not (at least immediately) be in a position to meet. That in my view would result in an injustice to the defendant in circumstances where, as I have said, the report of Mrs Smyth is two years old and where the plaintiff's representatives have had ample time to consider, and if necessary address, the admissibility of its contents. 7. Accordingly, I exclude those parts of Mrs Smyth's report to which objection was taken by senior counsel for the defendant, and I refuse leave to the plaintiff to adduce further oral evidence-in-chief. ********** 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: 27 September 2018