Fogg v Kane Constructions (NSW) Pty Limited; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 4)

[2014] NSWSC 1822

Supreme Court

New South Wales

Medium Neutral Citation:

Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 4) [2014] NSWSC 1822

Hearing dates:

6 February 2014

Decision date:

06 February 2014

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

The tender of the reports of Mr Contoyannis and Mr Campion is rejected.

Catchwords:

EVIDENCE - damages claim for personal injury - reports of expert witnesses on liability - opinions expressed on a variety of issues including the respective responsibilities of each of the Defendants - whether reports admissible - reports rejected

Legislation Cited:

Evidence Act 1995

Cases Cited:

Dasreef Pty Limited v Hawchar [2011] HCA 821, 243 CLR 588
Boland v Hoffmann [2011] NSWSC 330

Texts Cited:

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Category:

Procedural and other rulings

Parties:

Arthur Brent Fogg (Plaintiff)

Kane Constructions (NSW) Pty Limited (First Defendant in 2011/316330)

Hutchison Construction Services Pty Limited (Second Defendant in 2011/316330)

Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (Defendant in 2012/241074)

Representation:

Counsel:
Mr HJ Marshall SC; Mr GJ Smith (Plaintiff)
Mr RJ Cheney SC (Kane Constructions (NSW) Pty Limited)
Mr NJ Polin (Hutchison Construction Services Pty Limited)
Mr PA Rickard (Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast)
Solicitors:
Lough & Wells (Plaintiff)
Lee & Lyons Lawyers (Kane Constructions (NSW) Pty Limited)
Moray & Agnew (Hutchison Construction Services Pty Limited)
Goldbergs Lawyers (Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast))

File Number(s):

2011/316330; 2012/241074

Publication restriction:

Nil

Judgment

1. JOHNSON J: The present proceedings involve a claim by the Plaintiff, Arthur Fogg, against various Defendants claiming damages as a result of personal injury said to have been sustained as a consequence of a fall at a work site at Kiama on 13 October 2008.

1. There are three Defendants, Kane Constructions (NSW) Pty Limited ("Kane"), Hutchison Construction Services Pty Limited ("Hutchison") and Les Quatre Musketeers trading as Plastamasta South Coast ("Plastamasta").

1. The hearing of the proceedings has extended over a number of days. The present ruling relates to the admissibility of certain expert reports served on behalf of the Plaintiff and Hutchison.

1. Objection is taken by Mr Cheney SC for Kane, supported by Mr Rickard, counsel for Plastamasta, to the admissibility of the entirety of the expert evidence on liability which has been served. Mr Polin, counsel for Hutchison, and Mr Marshall SC for the Plaintiff, indicated earlier today, areas of objection to the opposing reports but a desire, at least on the part of the Plaintiff, that the Plaintiff's expert reports be admitted.

1. Submissions have reached a point where Mr Marshall SC has acknowledged the force of the submissions directed to the rejection of the liability reports. In effect, nothing has been said in support of their tender. However, the tender of the reports has not been withdrawn. It remains a matter for the Court to make a ruling. In the light of events, however, these reasons may be relatively concise.

1. The reports of Mr Contoyannis, the liability expert for the Plaintiff, were both dated 16 February 2012. The reports were directed to Kane and Plastamasta. At that stage, Hutchison was not a party to the proceedings.

1. Thereafter Mr Campion, the liability expert for Hutchison, prepared a report dated 18 February 2013.

1. The two liability experts met, in accordance with directions of the Court, and prepared a joint report dated 22 November 2013, which would be the foundation for concurrent evidence if this evidence was allowed.

1. The circumstances of the Plaintiff's fall may be summarised, perhaps at the risk of over simplification, as being a twisting of the lower left leg (including the ankle) whilst he and another person were carrying a heavy piece of Villaboard on what may be described as an uneven surface at the Kiama Pavilion work site on 13 October 2008.

1. That relatively straightforward scenario has then triggered expert reports, where the two authors have proffered opinions on a range of matters, including what is said to be the risk of carrying out such an activity and, more directly, opinions with respect to the respective responsibilities of Kane, Hutchison, Plastamasta and, indeed, the site foreman, with short opinions being expressed without any elaboration as to the foundation for the opinions.

1. These observations should not be interpreted as being an attack upon the good faith of the authors of the reports. The problem is that evidence of this type must satisfy the requirements of s.79 Evidence Act 1995.

1. Objection is taken upon the basis that the proffered expert evidence is not given by a person with specialised knowledge based upon the person's training, study or experience, with the opinion being wholly or substantially based upon that knowledge.

1. In the present case, I am satisfied that these reports fail at the first hurdle to satisfy the requirements of the Evidence Act 1995. They constitute clear examples, in my view, of the difficulty where conclusions and opinions are expressed by persons in the guise of expert reports, which really involve factual propositions (based upon an element of common sense) accompanied by a recital of legal propositions, which are for the Court to determine and not the experts.

1. The reports clearly attract the criticisms expressed by the High Court of Australia in Dasreef Pty Limited v Hawchar [2011] HCA 821, 243 CLR 588 at 602-603 [32], 604 [37] and 626 [99]. The observations of McCallum J in Boland v Hoffmann [2011] NSWSC 330 at [18]-[19] and [41]-[42] also have direct application in this context.

1. The position is further complicated by the fact that the factual scenarios which the two authors have addressed in writing would require some significant supplementation, if evidence was to be given by those persons which would be relevant to the decisions to be made in this case. However, that is a practical complication that would have been necessary to be resolved, if the point was reached where the two authors were allowed to give evidence in the first place.

1. I am well satisfied that the reports of Mr Contoyannis and Mr Campion should not be admitted as evidence in the proceedings.

1. I reject the tender of the reports of Mr Contoyannis dated 16 February 2012 (MFI 19). I reject the tender of the report of Mr Campion dated 18 February 2013 (MFI 22). I reject the tender of the joint report of Messrs Contoyannis and Campion dated 22 November 2013, which lies behind Tab 3 in Exhibit AG, where it has resided pending a ruling on the objection.

1. Accordingly, there is no need for concurrent evidence from Messrs Contoyannis and Campion, who cannot give admissible evidence in the proceedings.

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Decision last updated: 19 December 2014