Evidence: expert reports, assumptions and cross-examination

Garside v Rohan & Ors [2018] QSC 295

Judgement delivered 11 December 2018, Brisbane, by Davis J.

Facts

On 25 November 2014, the Plaintiff was travelling North from Emerald to Capella along the Gregory Highway on his motorcycle. The Plaintiff was travelling behind an Emerald bus, which was a few car lengths behind a green truck. 10km from the JJ Richards Emerald depot, as the Plaintiff moved to overtake the bus, a grey object, half the size of a house brick, fell from the truck, scraping the Plaintiff’s motorcycle fender and colliding with his knee.

The first, second and third Defendants were drivers of JJ Richards vehicles in the vicinity at the time of the injury and the fourth Defendant was the insurer of all JJ Richards vehicles at the relevant time.

Issues

Outlined at [10]

  1. Whether the green truck was driven by any of the first, second, or third Defendants;
  2. Whether the green truck was another vehicle operated by JJ Richards (and therefore insured by the fourth Defendant);
  3. Whether negligence is proved against the driver of the truck;
  4. Evaluation of the past and future economic loss of the Plaintiff.

Decisions on the Issues

  1. No: [14] – [56]

The injury occurred between 6:15 and 6:20 am on the morning of the 25 November 2014. Evidence (including departure and arrival times of the relevant trucks) indicated that the three JJ Richards trucks driven by the first, second, and third Defendants, passed the area of the accident well before 6am [56].

2. No: [57] – [74]

Further, there were no other JJ Richards trucks in the vicinity at the time which would have been travelling North near the accident area at the relevant time [71]. Therefore, the relevant defendant is the Nominal Defendant [74].

3. Yes: [75] – [84]

Given an analysis of the relevant factors under s9 Civil Liability Act 2003 (Qld), including the foreseeability of the risk of an object falling from a commercial vehicle, the seriousness of the harm that could be suffered and the simplicity of the precautions necessary to avoid harm (discussed at [80]), the Court held that negligence was proved against the driver of the truck [83-4].

4. [85] – [145]

Past and future economic loss is evaluated at $723,761.64

Evidentiary Issues

  1. Whether certain opinion evidence is admissible;
  2. Whether a statement relied upon in cross-examination must be tendered in its entirety.

Decisions on the Evidentiary Issues

  1. [146] – [168]: The first evidentiary issue concerned opinion evidence of Dr Gilmore, a mechanical engineer who provided evidence on the likelihood of an object remaining on a commercial vehicle for the 10km distance from the JJ Richards Emerald depot to the point of the accident before becoming dislodged at that point.

[154] Mr Grant Taylor QC, counsel for the Plaintiff, objected to the admission of this evidence on three grounds:

a. the report was delivered beyond the time limited by r 429 of the Uniform Civil Procedure Rules 1999 (Qld);

The Court took account of the purposes of Part 5, Chapter 11 UCPR, and noted the statement of Sofronoff P in Allianz Australia Insurance Ltd v Mashghati [2018] 1 Qd R 429 at [55] that the Court has the power to grant leave to a party to tender a report which doesn’t comply with UCPR r 429. The Court proceeded to state that there was no suggestion in the current case that the Defendant could not meet the evidence of Dr Gilmore, that the experts could not properly be prepared to give evidence, nor that the trial would be delayed as a result of the expert evidence being introduced. Therefore, Davis J stated at [159], “I would, had the evidence been otherwise admissible, been reluctant to exclude Dr Gilmore’s evidence solely on the basis on [sic] non-compliance with r 429”.

b. the report was obtained in breach of paragraph 4 of Practice Direction 2 of 2005; and,

Although a breach of the Practice Direction occurred (as Dr Gilmore’s report was delivered and the Plaintiff’s solicitors objected but weren’t given an opportunity for discussion), again, Davis J stated at [164] that “had Dr Gilmore’s evidence been admissible in QBE’s case, I would have been loath to exclude the evidence because of a breach of the Practice Direction. The breach would though have become relevant to the question of costs.”

c. the opinion evidence is inadmissible in any event, as the underlying factual basis of the opinion is not proven.

At [167], Davis J stated that “none of the assumptions made by Dr Gilmore as to the composition of the object or its weight are proven. … The Court is in as good of a position as Dr Gilmore to assess that”.

Therefore, the evidence was excluded [168].

2. [169] – [182]: The second evidentiary issue concerned a written statement made by the Plaintiff, parts of which were used during his cross-examination.

After outlining the rule in s19 Evidence Act 1977 (Qld) and the current case law at [172] – [180], the Court stated, at [181], that what was considered in those cases was the specific exception which relates to cross-examination of documents only used to refresh memory.

[181] “nothing in R v McGregor [or the cases referred to therein] contradicts the general rule that if the cross-examiner cross-examines on a prior statement and in the course of the cross-examination proves the statement then the statement is admissible”.

The document used in cross-examination was not used to refresh memory, but was a prior statement; therefore, the entirety of the document was required to be tendered [182].

David Cormack – Brisbane Barrister & Mediator

Research by Madeleine Bowater

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