Andrenacci v Australia Pacific Airports (Melbourne) Pty Ltd
[2017] VCC 188
•27 February 2017 9 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-00870
| DAYANA ANDRENACCI | Plaintiff |
| v | |
| AUSTRALIA PACIFIC AIRPORTS (MELBOURNE) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2017 | |
DATE OF RULING: DATE OF REASONS: | 27 February 2017 9 March 2017 | |
CASE MAY BE CITED AS: | Andrenacci v Australia Pacific Airports (Melbourne) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 188 | |
REASONS FOR RULING
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Subject: OCCUPIER LIABILITY
Catchwords: Admissibility of expert evidence; duties of experts to court; Expert Code of Conduct
Legislation Cited: Evidence Act 2008; Civil Procedure Act 2010
Cases Cited:Dasreef Pty Ltd v Hawchar [2011] HCA 21; Honeysett v R [2014] HCA 29; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors [2014] VSC 567
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith with Ms K Manning | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G Worth | Sparke Helmore |
HER HONOUR:
Preliminary
1 The plaintiff seeks damages for injuries she suffered when walking on a motionless travelator at Melbourne Airport on 11 April 2010.
2 The plaintiff sought to lead evidence from consultant engineer, Mr Mark Dohrmann, who provided a report dated 30 July 2014 (“first report”), in support of her claim that the defendant was negligent and/or breached its statutory duty as occupier of Melbourne Airport.
3 At the commencement of the proceedings, Mr Glenn Worth, counsel for the defendant, objected to Mr Dohrmann’s first report, being admitted as expert evidence. He submitted that Mr Dohrmann’s report was inadmissible on the basis he had failed to comply with the Expert Witness Code of Conduct (“the Expert Witness Code”) and section 79 of the Evidence Act (2008) (“the Evidence Act”). In the alternative, he submitted that the Court should exercise its discretion under section 135 of the Evidence Act, primarily on the basis that any probative value arising from his report would be substantially outweighed by the danger that such evidence might be misleading or confusing. The defendant made no objection in relation to Mr Dohrmann’s qualifications as an expert witness.
4 The parties agreed that it was appropriate to hold a voir dire so as to enable me to determine whether or not Mr Dohrmann’s evidence should be admissible.
5 On 24 February 2017, Mr Dohrmann gave viva voce evidence in a voir dire.
6 At the commencement of his evidence, only the first report of Mr Dohrmann, dated 30 July 2014, had been served upon the defendant’s solicitors. Unbeknownst to the defendant, on 17 March 2015, Mr Dohrmann had subsequently forwarded an email to Mr John Melia of Melia Lawyers (“the plaintiff’s former solicitors”), in which he raised doubts as to the reliability of the photographs contained in his first report (“the email”). Further, Mr Dohrmann had also prepared a supplementary report, dated 26 October 2015, at the request of the plaintiff’s former solicitors (“the supplementary report”). Neither the email, nor the supplementary report, had been served upon the defendant’s solicitors.
7 Approximately 50 minutes into his cross-examination, Mr Worth asked to inspect Mr Dohrmann’s file, at which time the email and the supplementary report were subsequently discovered.
8 On 27 February 2017, I ruled that Mr Dohrmann’s evidence be excluded pursuant to section 135 of the Evidence Act and that I would publish my reasons at a later time.
9 Separate to my consideration of the admissibility of Mr Dohrmann’s evidence, the non-service of both the email and the supplementary report raise very serious concerns for me in relation to compliance with the overarching obligations required of solicitors and experts under the Civil Procedure Act (2010) (“the Civil Procedure Act”). On my own motion, following the conclusion of the plaintiff’s damages claim, I will hold a separate inquiry into these matters.
Relevant background
10 The plaintiff’s former solicitors issued damages proceedings in this Court on 25 February 2013.
11 On 18 December 2012, the plaintiff’s former solicitors sent a letter of instruction to Mr Dohrmann seeking his expert opinion in this matter.
12 On 29 January 2013, Mr Dohrmann interviewed the plaintiff by telephone.[1]
[1]Plaintiff’s Court Book (“PCB”) 174
13 On 31 January 2013, whilst at Melbourne Airport for unrelated purposes, but in response to the instructions he had already received in this matter,[2] Mr Dohrmann used his mobile phone to take photographs of the travelator on which the plaintiff slipped.[3] Mr Dohrmann included three such photographs in his first report, at paragraphs 5.7, 5.8 and 5.9.
[2]Transcript (“T”) 57, L11-22
[3]PCB 177
14 On 22 July 2014, Mr Dohrmann interviewed the plaintiff in person and conducted an inspection of the relevant travelator.[4]
[4]PCB 174
15 On 30 July 2014, Mr Dohrmann completed his first report, and subsequently forwarded it to the plaintiff’s former solicitors.
16 On 17 March 2015, Mr Dohrmann forwarded an email to Mr John Melia, in relation to the photographs in his first report, taken on 31 January 2013. The relevant parts of the email are as follows:
“…You will recall a report I sent you on Dayana’s claim (report dated 30 July 2014). In it, I presented some photos I took on 31 January 2013 (see 5.9, for instance).
I said that the image appears to show smooth ridges on its walking surface, contrasting with the “castellated” (ridged) edging now present. I say that the January 2013 surface appears to be smoother.
One of our engineers (John Dimopoulos) recently attended a view of the same travelator. The Plaintiff brought photos that predate January 2013 and pre-date Dayana’s fall. These photos appear to show a castellated surface on the relevant travelator.
I cannot explain the discrepancy between my observations (using my January 2013 photos) and the earlier ones, but it raises doubt as to whether the travelator surface has ever been altered. When asked by our engineer, the defendant’s people at his view said that it “had not altered”.
This note is to suggest caution before assuming there has been any change. Otherwise, my opinions, based largely on the tests we conducted, do not change”.[5]
[5]MFI 4
17 On 14 September 2015, the plaintiff’s former solicitors forwarded copies of the two expert reports provided by Dr John Culvenor, who had been retained by the defendant in this matter, to Mr Dohrmann.[6]
[6]Ibid.
18 I was informed by Mr Smith, counsel for the plaintiff, that on 14 September 2015, Zaparas lawyers (“the plaintiff’s current solicitors”), received the plaintiff’s file from the plaintiff’s former solicitors, as they had, by this time, been instructed to act on her behalf in this matter.[7]
[7]T55, L4-11
19 On 26 October 2015, Mr Dohrmann provided a supplementary report, addressed to Mr John Melia, at the office of the plaintiff’s former solicitors.[8]
[8]MFI 4
20 Mr Smith submitted that previous correspondence from Mr Dohrmann had never been forwarded to the plaintiff’s current solicitors.[9]
[9]T55, L12-18
Defendant’s objections to Mr Dohrmann’s evidence
21 The defendant raised a multitude of objections in relation to Mr Dohrmann’s first report. In summary, these were as follows:
(1) Incorrect photograph of the travelator
22 At paragraphs 5.6, 5.8 and 5.9 of his first report, Mr Dohrmann included photographs taken on 31 January 2013.
23 In paragraph 5.11 of his report, Mr Dohrmann stated that these photographs demonstrate the travelator to have “smooth ridges on the walking surface”, before noting that the surface subsequently changed to have castellated ridges. Further, at paragraph 7.4, Mr Dohrmann stated that the “present surface appears to be less smooth and thus of higher friction than the surface shown in the 2013 photographs.”[10]
[10]PCB 184
24 Mr Worth submitted that the photograph at paragraph 5.9, taken on 31 January 2013, showed the travelator to have a different surface to that which can be seen in a subsequent photograph, taken by Mr Dohrmann on 22 July 2014, and that the photograph taken on 31 January 2013 had been included in his report by mistake.
25 Mr Dohrmann was cross-examined on how he came to label the photograph at paragraph 5.9. His answer was as follows:
“I don't know. My suspicion about that photograph is that it is not the travelator surface but in fact, the part of the area either at the approach landing or the departure landing. It looks like many others of that sort. I didn't identify it at the time so I can't help you further.”[11]
[11]T 64, L 11-16
26 Mr Dohrmann said that he came to the opinion that the January 2013 photographs were not part of the relevant travelator surface about four days prior to the commencement of the proceedings. However, he did not explain the basis for this change of opinion, nor did he write to the plaintiff’s current solicitors to inform them of such a change.[12]
[12]T 64, L 17-31
(2) Incorrect gradient measurement
27 In his first report, Mr Dohrmann stated that the gradient of the travelator was 10 degrees, but he did not explain the basis upon which he had measured it.[13]
[13]PCB 180
28 In cross-examination, Mr Dohrmann stated that he had used an Inclinometer, an application on his mobile phone, to measure the gradient.[14] He further stated that he was content to record the gradient at 10 degrees, as it accorded with his own experience as an engineer who had estimated many gradients in the past.[15] Mr Dohrmann said he did not consider it necessary to seek a copy of the building plans to confirm his gradient measurement.[16]
[14]T 44, L12-14
[15]T 44, L27-31
[16]T 44, L25-26
29 In his supplementary report, Mr Dohrmann conceded that the defendant’s expert, Dr John Culvenor, had measured the travelator’s gradient at 12 degrees, and he accepted this to be the correct measurement. Further, Mr Dohrmann stated that such a difference did “not diminish his critical assessment of the travelator”.[17]
[17]MFI 3, at page 1
(3) Reference to outdated and irrelevant standards
30 In his first report, Mr Dohrmann relied heavily upon Australian Standard (“AS”) 3661.1 – Slip Resistance of Pedestrian Surfaces, in circumstances where this Standard was revised in 2002, the new standard being Australian Standard 4663 – Slip Resistance of Existing Pedestrian Surfaces. Mr Worth further criticised Mr Dohrmann for referring to an irrelevant Australian Standard, that being AS4586 – Slip Resistance Classification of New Pedestrian Surface Materials.
31 Mr Worth submitted that the most relevant standard was AS1735.5 – Lifts, Escalators and Moving Walks, as it specifically deals with travelators.
32 Whilst Mr Dohrmann conceded that AS4586 had marginal relevance in this case, he did consider it necessary to focus on standard AS3661.1, in part for historical reasons, and in part because it drew a “line in the sand”[18] as to what coefficient of friction level was safe, versus unsafe.[19] He said that as the subsequent standard, that being AS4663, does not have a minimum coefficient friction level,[20] he considered AS3661.1 to still be relevant.[21]
[18]T29, L11-25
[19]PCB 181
[20]T30, L19-31. T31, L1-19
[21]T26, L30-31, T27, L1-4
33 Mr Dohrmann considered that AS1735.5 was of no direct relevance to this case. He stated that whilst it relates to travelators, it does not deal directly with slip resistance, and therefore he did not consider it relevant to the issues on which he was asked to give an opinion.[22]
[22]T27, L14-19
(4) Use of the SlipAlert test instead of the Tortus test
34 During cross-examination, Mr Dohrmann accepted that AS3661.1, 4586 and 4663 each require that the Tortus test be used to assess the slip resistance of a dry floor surface.[23] However, Mr Dohrmann conceded that he had not performed the Tortus test,[24] and that he had instead performed the SlipAlert test, an alternative test method, which he felt was less error-prone than the Tortus test.[25] In such circumstances, Mr Dohrmann did not consider the Tortus test to be relevant.[26]
[23]T35, L27-30
[24]T35, L31
[25]T74, L18-20
[26]T36, L13-14
(5) Inadequate recognition of literature or the “cut and paste job”
35 Mr Worth identified three sections of Mr Dohrmann’s first report, in which the content was almost identical to material available on other websites. It was contended that Mr Dohrmann had cut and pasted significant slabs of material from the websites into his report, such that it was impossible to distinguish between his opinion and that of the expert from whom the material had been taken.
36 On page 11-12 of his report, paragraphs 6.1 to 6.5 were copied almost entirely from the website “safeenvironments.com.au”.[27]
[27]MFI 1
37 Mr Dohrmann accepted that most of that material had been extracted from the SafeEnvironment website, save for “a little bit”[28] of editorial adjustment, “but nothing substantial”.[29] However, he resisted a suggestion that he had “copy pasted”.[30] He considered that in circumstances where he had “read, considered and deemed worth including”,[31] the contents of the SafeEnvironment report, a footnote in which he stated that he had drawn upon such material, was sufficient acknowledgement.[32]
[28]T37, L15
[29]T37, L15-16
[30]T37, L11-18
[31]T37, L24
[32]T37, L26-31, T38, L1-3
38 It was put to Mr Dohrmann that in copying and pasting the content from that website, he had inadvertently included the irrelevant reference to AS4586, which related to new pedestrian surfaces.[33] Mr Dohrmann did not accept that proposition when it was put to him in cross-examination.[34]
[33]T38, L11-18
[34]T38, L11-17
39 On page 21 of his report, Mr Dohrmann listed a number of factors which can contribute to the risk of a slip accident. This material was also attributable to another engineer, Mr John Dimopoulos.[35] Mr Dohrmann said that he had obtained the permission of Mr Dimopoulos to list those factors and, as he agreed with them, he considered it was appropriate to copy over such opinions and provide a reference to the source at the foot of the page.[36] However, Mr Dohrmann could not identify those parts of the report that were in his words, and those parts that were written by Mr Dimopoulos.[37]
[35]PCB 191
[36]T70, L8-21
[37]T71, L1-2
40 Finally, on page 25 of his report, Mr Dohrmann copied two paragraphs, almost identically, from a Global Safe Technologies website, regarding a British Government review of the SlipAlert test in the United Kingdom.[38] In this instance, Mr Dohrmann did not acknowledge the source of such material.[39]
[38]MFI 2
[39]T41, L22-24
41 In cross-examination, Mr Dohrmann said that he could not remember the website off-hand,[40] but when shown an extract from the website, he agreed that “the majority of what is from that website is replicated in my report.”[41] He stated that, whilst they were not his own words, he had copied over such paragraphs as he considered them to be “significant and relevant to the report that I prepared.”[42] Mr Dohrmann was unable to provide an explanation as to why there was no acknowledgment of this source.[43]
[40]T39, L17
[41]T40, L30-31
[42]T41, L22-24
[43]T41, L25-30
(6) Incorrect reference to the Australian Building Code
42 In Appendix 1 of his first report, Mr Dohrmann stated that AS3661.1 has been superseded by successive standards, but that it remains the authority named in the Building Code of Australia. He therefore went on to state that it “carries the force of law under the respective State building acts in sections dealing with the slip resistance of pedestrian surfaces.”[44]
[44]PCB 188
43 When provided with a copy of the Building Code of Australia which was relevant to the class of buildings at Melbourne Airport, Mr Dohrmann acknowledged that the AS3661.1 was not in it.[45]
[45]T65, L22-29
(7) Misleading summary of Australian Standard Handbook HB197
44 On page 15 of his first report, Mr Dohrmann referred to Australian Standard Handbook HB197 - An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials (“ HB197”) as a helpful handbook, and noted that it would have assisted the defendant in providing information on the identification, assessment and control of the risks of slipping.[46]
[46]PCB 185
45 Mr Worth cross-examined Mr Dohrmann on his failure to acknowledge that, in HB197 there is concern regarding the reliability of slip resistance tests, including the pendulum test. Mr Dohrmann stated that he did not agree with such opinions, and stated further, that as the pendulum test related only to wet surfaces, he did not consider it necessary to refer to in the context of his report.[47]
[47]T43, L9-13
(8) Incorrect reference to a non-existent Appendix A
46 Mr Dohrmann stated that his first report included, in Appendix A, a copy of HB197.[48] However, a copy of HB197 was not actually included in his report. Mr Worth suggested to Mr Dohrmann that the reference to Appendix A was a further example of him cutting and pasting from previous reports. Mr Dohrmann denied this.[49]
[48]PCB 190
[49]T71, L12-13
47 Mr Smith submitted that Mr Dohrmann’s failure to include an extract of HB197 was of no significance, as its contents were summarised in other parts of his report.
Admissibility of expert evidence
48 Section 79(1) of the Evidence Act sets out two conditions in relation to the admissibility of an expert opinion. These are:
(1)the witness must have “specialised knowledge based on the person’s training, study or experience”;[50] and
(2)the opinion must be “wholly or substantially based on that knowledge”.[51]
[50]s79(1)
[51]s79(1)
49 In considering this application, Mr Worth referred me to the High Court decisions of Dasreef Pty Ltd v Hawchar[52] and Honeysett v R[53]. In both cases, the High Court considered the criteria that must be satisfied for an expert opinion to be admitted in to evidence.
[52][2011] HCA 21
[53][2014] HCA 29
50 In the more recent case of Honeysett, the High Court held that an opinion from an expert in anatomical characteristics was inadmissible, as the opinion was held ultimately to be a subjective opinion, that was not a matter of expert evidence. In a joint judgment of French CJ, Kiefel, Bell, Gageler and Keane JJ, it was stated that the expert opinion must be:
“… substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.”[54]
[54](supra) paragraph 24
Should Mr Dohrmann’s evidence be admitted under Section 79 of the Evidence Act?
51 Mr Smith submitted that Mr Dohrmann’s opinion is substantially based on his specialised knowledge and that his report, despite some errors, explains why he forms the ultimate view that he does. Mr Dohrmann stated that, in his opinion, the Tortus test is unreliable[55] and that AS3661.1 offers guidance as to what constitutes a minimum coefficient of friction level.[56] As a qualified expert, it was submitted that Mr Dohrmann should be permitted to explain his expert opinion in relation to both of these matters, and in relation to his ultimate conclusion that the plaintiff was placed at risk of injury, because of the “slipperiness of the surface, taking into account its gradient.”[57]
[55]T74, L18-20
[56]PCB 181
[57]PCB 184
52 Mr Worth did not challenge Mr Dohrmann’s qualifications to provide an expert opinion, but instead, stated that his multiple failures to comply with the Expert Witness Code, are sufficient for his evidence to be disallowed under section 79 of the Evidence Act. I am of the opinion that the failings identified above are better considered in assessing whether or not to exercise my discretion under section 135 of the Evidence Act.
Should Mr Dohrmann’s evidence be excluded under Section 135 of the Evidence Act?
53 Section 135 of the Evidence Act provides a general discretion to exclude evidence in circumstances where the probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time; or
(d)unnecessarily demean the deceased in a criminal proceeding for a homicide offence.[58]
[58]S135 of the Evidence Act 2008 (Vic)
54 Mr Worth submitted that I should exclude Mr Dohrmann’s evidence on the basis of subparagraphs (a), (b) and (c), but focused primarily on subparagraph (b), on the basis that there was danger Mr Dohrmann’s evidence might be misleading or confusing.
55 I consider Mr Dohrmann’s report to contain some minor errors or oversights which, whilst not desirable, are not sufficiently significant for me to render these aspects of his evidence, on their own, inadmissible. These matters are as follows:
·Mr Dohrmann’s incorrect measurement of the gradient of the travelator.
Although it would have been preferable for Mr Dohrmann to identify in his report that he had measured the gradient with an application on his phone, I do not consider his failure to do so sufficient to render his opinion on the gradient inadmissible. I accept his evidence that the measurement on his phone accorded with his own expert knowledge, and that he was satisfied to accept such a measurement without requiring the travelator’s plans from the defendant. Mr Dohrmann then appropriately conceded that his gradient measurement was wrong, and that it was at a greater level than he had previously estimated. For the purpose of this application, I do not consider the difference between 10 to 12 degrees to be of significance, nor the manner by which Mr Dohrmann came to measure it.
·Mr Dohrmann’s reference to the new pedestrian surface Standard within his report.
Whilst Mr Dohrmann stated that its relevance was in demonstrating the history of the Standards over time, I consider it was more likely included as an inadvertent “cut and paste” from the SafeEnvironments website. Nonetheless, I do not consider this to be of any significance in the overall opinion provided by Mr Dohrmann.
·Mr Dohrmann’s incorrect reference to Appendix A, in circumstances where there is no Appendix A.
I consider this to be a further example of inadvertence, and not one of significance.
·Handbook HB197 was only referred to in a limited sense.
I accept Mr Dohrmann’s explanation as to why he did not quote those parts of the report he did not agree with. I accept his explanation that the concerns expressed in relation to the pendulum test, are only relevant to a wet surface. As the testing in this case was of a dry surface, I do not consider such an omission to be of significance.
56 Mr Worth submitted that paragraph 7.6 was misleading, as Mr Dohrmann did not reference other factors relevant to his opinion. I consider that paragraph 7.6 is a very short summary of his overall opinion, and that it must be read in conjunction with the balance of his report. I therefore make no criticism of it.
57 While I am not overly concerned with the matters referred to above, I do have serious misgivings in regards to other more significant aspects of Mr Dohrmann’s reports and his viva voce evidence. When considered collectively, these misgivings, together with my concern as to breaches of the Expert Witness Code, are such that I am satisfied Mr Dohrmann’s evidence should be excluded pursuant to the discretion provided under section 135 (b) of the Evidence Act, on the basis there is a real danger that such evidence might be misleading or confusing. The matters of concern are as follows:
(1)Mr Dohrmann’s photograph at 5.9 of his report is misleading and confusing.
It is entirely unsatisfactory that Mr Dohrmann took this photograph, two days after speaking to the plaintiff by telephone, and included it in his first report. He wrongly identified it as being a changed surface. When he realised his likely error, he emailed the plaintiff’s former solicitor, but failed to refer to this change in his supplementary report. Further, when he was given additional information regarding this matter four days prior to giving evidence, Mr Dohrmann failed to provide a supplementary report correcting this change of opinion.
Shortly after the commencement of his cross-examination, Mr Dohrmann was asked to confirm that he had read and understood the Expert Witness Code of Conduct Form 44A. The following examination then ensued:
“Q: You've declared that no matters of significant, which I believe to be relevant have, to my knowledge, been withheld?---
A:Yes.
Q:Is that true?---
A:That is.
Q:Do you wish to revise anything you've said in that paragraph
there?---
A:No.”[59]
[59]T26, L22-27
This was an opportunity for Mr Dohrmann to state his change of opinion in relation to the legitimacy of the photograph at paragraph 5.9. Instead, he said nothing. It was only when he was directly cross-examined that he acknowledged that photograph at 5.9 was incorrectly labelled.
It is extraordinary that an expert would include an incorrect photograph within a report, and I consider the answers Mr Dohrmann provided in cross-examination in relation to the photograph of “I don’t know”[60] and “…my suspicion”[61] to be careless and unprofessional. I also consider Mr Dohrmann’s subsequent reliance on that photograph, to allege that the travelator surface had changed, such that it was now less slippery, together with his failure to either adequately acknowledge or bring this error to the attention of the Court at the earliest possible time, to be entirely unacceptable and to demonstrate significant unreliability on his part. I therefore consider that there is a real risk that his evidence, if admitted, may be misleading.
(2)There are three separate sections in Mr Dohrmann’s first report which are effectively “cut and paste” jobs from other sources. Two of these sources were briefly acknowledged, whilst there was no acknowledgement at all of the third. I consider this akin to plagiarism, and I believe it to be entirely unprofessional for an independent expert, who is subject to the obligations imposed by the Expert Witness Code, to have engaged in such conduct so flagrantly.
(3)Mr Dohrmann referred to AS3661.1, as being named in the Building Code of Australia and carrying “the force of law”.[62] This is a significant overstatement, and is such a fundamental error that it causes me to have little confidence in his reliability as a witness.
(4)Mr Dohrmann failed to refer to either the email or the supplementary report until directly asked. He then sought to explain his conduct on the basis that, as an expert experienced in giving evidence, he only directly answered the questions asked of him.[63] Further, he had assumed that such documents would have been exchanged with the defendant’s solicitors.[64] I find this conduct entirely unsatisfactory and disingenuous, and it again causes me great concern as to his reliability as a witness.
At the commencement of his evidence in chief, Mr Smith only referred Mr Dohrmann to his first report, and made no mention of the email or the supplementary report. At this point, given his involvement in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors[65], I consider that Mr Smith’s reference to only the first report should have rung alarm bells for Mr Dohrmann. Further, when asked at the commencement of cross-examination to confirm that no matters of significance had been withheld, he ought then to have raised the error in paragraph 5.9.
[60]T 64, L11-12
[61]T 64, L11-14
[62]PCB 188
[63]T47, L14-20
[64]Ibid.
[65][2014] VSC 567
58 Under the Expert Witness Code, the general duty to the court is expressed as follows:
“2. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.”
59 I am not confident that Mr Dohrmann would assist the court impartially when giving evidence.
60 For the reasons outlined above, I have significant concerns as to Mr Dohrmann’s repeated breaches of the Expert Witness Code and the general misleading and confusing nature of his first report and viva voce evidence, such that I consider his evidence should be excluded pursuant to section 135 (b) of the Evidence Act.
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