The plaintiff claimed for personal injuries sustained when his motorcycle collided with the rear of a horse float towed by the first defendant when the first defendant turned into the path of the plaintiff. The compulsory insurer (second defendant) alleged the plaintiff was travelling too fast to be seen by the driver when turning and despite the Traffic Regulations were not negligent – Brown v Holzberger  2 Qd R 639 and Sibley v Kais (1966) 118 CLR 424.
The plaintiff denied he was travelling too fast, primarily because he was “running-in” a new engine and gearbox that had recently been installed on his motorcycle. The plaintiff sustained significant injuries, which also included the plaintiff not being able to recall the collision and a period leading up to it.
During the trial the plaintiff sought to rely on the report of Dr Kahler, the second defendant objected. The second defendant had obtained a report from Dr Carnavas, and both experts prepared a joint report.
Davis J considered Uniform Civil Procedure Rules 1999 (Qld) r 5, r 423 and in particular r 429:
“429 Disclosure of report A party intending to rely on a report must, unless the court otherwise orders, disclose the report— (a) if the party is a plaintiff—within 90 days after the close of pleading; or (b) if the party is a defendant—within 120 days after the close of pleading; or (c) if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party.”
To the extent there was non-compliance with r 429, his Honour excused it having regard to Allianz Australia Insurance Ltd v Mashaghati  1 Qd R 429 at  – .
Justice Davis next turned to consider if the expert opinion was admissible and found :
Expert opinion evidence is admissible if:
- there is a recognised field of study;
- the witness is an expert in that field;
- the opinion is based on the witness’s experience and expertise in the field; and
- the opinion evidence is probative of a fact in issue.
Justice Davis noted that in Queensland there is no recognised field of expertise of ‘traffic accident reconstruction’, but that the science of engineering was, and to that extent evidence based on engineering science the opinion would be admissible, subject to relevance. His Honour noted the limitations of this because problems arise “when there are unknown variables or assumptions so that the opinion cannot be said to be properly founded in the field” . Justice Davis noted the limitations of expert evidence in traffic accident cases generally – Fox v Percy (2003) 214 CLR 118 and Anikin v Sierra (2004) 79 ALJR 452.
Relevantly, because the plaintiff could not recall the collision and speed leading up to it, Dr Kahler included in his report some photographs of the roadway leading up to the collision area and intersection area. His Honour accepted the photographs were relevant but found that the opinions were not based on science and that it was open to the Court to draw its own conclusions :
“These opinions are, with respect, not truly based on any science. They are simply conclusions which are drawn from physical evidence. No science or expertise is identified as the basis upon which the conclusions are drawn. The Court is in as good a position as Dr Kahler to consider the evidence and draw conclusions as to the movement of the two vehicles and of Mr Brown in the accident. The objection was properly taken and the evidence was excluded.”
Next, Justice Davis considered the document “A Guide to Road Design Part 3: Geometric Design” included in Dr Kahler’s report considering reaction times of drivers. His Honour excluded it because reaction times of drivers “is significantly undermined by the variables in any particular case” .
Many of the other conclusions of Dr Kahler were excluded either by concession or by rulings by his Honour because the opinions were not based on the science of engineering, but assumptions drawn from the physical evidence, which Justice Davis found the Court was in as good a position to assess the evidence as the expert .
David Cormack – Brisbane Barrister & Mediator