Hendricks v El-Dik (No 3)
[2015] ACTSC 417
•3 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hendricks v El-Dik & Anor (No 3) |
Citation: | [2015] ACTSC 417 |
Hearing Date: | 3 September 2015 |
DecisionDate: | 3 September 2015 |
Before: | Mossop AsJ |
Decision: | See [17] |
Category: | Ruling on Evidence |
Catchwords: | EVIDENCE – Objection to admission of expert evidence served late in proceeding – assessment of reason for late service, significance of expert evidence, prejudice to objecting party, potential disruption to proceeding – turns on own facts |
Parties: | Mohgamat Hendricks (Plaintiff) Walid El-Dik (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr A Black SC, Mr A Muller and Mr D Crowe (Plaintiff) Mr J Poulos QC and Mr B Wilson (First and Second Defendants) |
| Solicitors Slater & Gordon (Plaintiff) Sparke Helmore (First and Second Defendants) | |
File Number: | SC 460 of 2013 |
Introduction
The plaintiff has objected to the tender of a report of Dr Robert Casey dated 28 August 2015. That is a report which, for the first time in this case, provides expert evidence about the nature of the controller on the electric motor the subject of these proceedings. I will refer to that motor as the accident motor. The amount of power and the acceleration able to be produced by the accident motor have been the subject of expert investigation for some time. By orders dated 19 March 2015 I directed that the experts participate in the preparation of a joint expert report and produce such a report by 15 May 2015. The parties were then permitted to serve any supplementary liability expert reports by 29 May 2015. Although testing of electric motors for the purposes of preparing the joint expert report took place on 29 April 2015, the process of preparation of the joint expert report took longer than expected with the result that the joint expert report was only finalised and dated 24 August 2015. It became available to the parties shortly thereafter. The relevant experts who participated in the process were Dr Robert Casey, a mechanical engineering consultant, Mr William Keramidas, a traffic engineer, Mr Grant Johnston, a traffic engineer, and Mr Alan Joy, a traffic engineer. My statement of the particular expertise of these witnesses is inevitably inadequate and fails to give full recognition to the details of their qualifications. The point to note at present is that Dr Casey is the only mechanical or electrical engineer involved at present and he has been retained by the defendants. No report of a similarly qualified person has been served by the plaintiff.
Following the provision of the joint expert report further instructions were received by two of those experts. As a result of the plaintiff’s solicitors obtaining further data from the Australian Federal Police, Mr Johnston produced a further report dated 27 August 2015 relating to the estimated speed of the first defendant’s vehicle as he reversed out of the driveway. As a result of the service of this report, Mr Keramidas produced a further report dated 28 August 2015 in response to Mr Johnston’s report.
The other activity that took place after the provision of the joint expert report was that the defendants requested Dr Casey to undertake an inspection of the controller of the accident motor. That request arose out of matters that occurred during the joint testing exercise which was the subject of the joint expert report. For the purposes of the joint testing exercise the experts fitted three different electric motors to two different bicycles. The performance of those motors was then tested by measuring the speed and acceleration of the bicycles under different conditions, in particular: going up or down a 2% incline and when the rider was pedalling or not pedalling. Two of the motors were nominally 500 W motors and one of them was nominally 200 W. The performance of one of the motors, the 200 W motor, was found to be much more powerful than expected. It in fact performed much more like a 500 W motor than a 200 W motor. That was discovered to be because the controller which regulated the power delivered from the batteries to the motor was such that it delivered greater power than would be expected or required if the motor was to be operating at 200 W. As a consequence of this, the experts, who were intending to make a comparison between the performance of a 200 W motor and a 500 W motor, were not able to make reliable use of the nominally 200 W motor for the purposes of their testing. Instead, because of the linear relationship between the energy delivered to the motor and its performance, they were able to mathematically adjust the results from the 500 W motors so as to be able to estimate with reasonable accuracy the performance of a 200 W motor. The fact that the experts had unexpectedly discovered for themselves the possibility that a change in the controller for an electric bicycle motor might substantially affect its performance resulted in the solicitors for the defendants making a request of Dr Casey to examine the controller for the accident motor to see whether it too was designed to produce an electrical input to the motor greater than the 500 W for which the motor was designed. This would assist in determining whether the accident motor was likely to have performed in the same manner as the tested 500 W motors or whether, because of an increase or decrease in the electrical power delivered to it, it would have operated differently.
As a consequence of the request, Dr Casey examined the controller of the accident motor. The result of that examination is described in the report of 28 August 2015 which is objected to. He compared the controller of the accident motor with the controller of one of the tested motors. That comparison demonstrated that instead of having seven MOSFETs the controller of the accident motor had 15 MOSFETs. A MOSFET is a metal oxide semiconductor field effect transistor. The report of Dr Casey explains that in general terms the electrical current that the controller can supply to a motor is dependent upon the number of MOSFETs. Because of this he says: “I would expect the power available to the bicycle in question would be about twice what was considered as part of the joint testing in Canberra”. He therefore concluded that this will impact on some aspects of the joint expert report because all experts at the time of preparing the report believed that the 500 W motors tested in Canberra were representative of the accident motor and controller.
He says that he now believes “that the joint testing in Canberra is not representative of the bicycle at the time of the accident”.
Submissions in relation to the tender of the report
The objections to the tender of the report were twofold.
First, the conclusions in the joint expert report at page 345 of exhibit 1 were referred to and those conclusions, it was submitted, were unlikely to be affected by any change in the power output of the controller to the accident motor. That was because the maximum speed of the bicycle was identified and then minimum and likely speeds at the time of impact were estimated having regard to the impact damage caused in the accident rather than the maximum speed of the bicycle. As a consequence the submission was that as the evidence stood the additional report of Dr Casey was unlikely to affect the opinion of the relevant experts.
Second, the plaintiff submitted that he did not accept, at this stage, the accuracy of the conclusions of Dr Casey. He would plainly need an opportunity to properly consider and address the additional evidence. If the report was admitted there was potential prejudice to the plaintiff because he had not retained an electrical engineer and would be required to obtain advice prior to any further discussion by the experts and certainly prior to the experts giving oral evidence.
The defendants submitted that the issue was an important issue of fact which may indicate that the conclusions of the joint expert report were not applicable in the circumstances. In order to explain how the conclusions in the joint expert report might be altered, the defendants called Mr Keramidas on the voir dire. The effect of the evidence of Mr Keramidas was that while the change in the power delivered to the accident motor may increase its acceleration it would be unlikely to increase the overall maximum speed by more than a kilometre or two. However the change in acceleration may have some effect on some of the issues dealt with in the joint expert report because it might affect the precise location of the plaintiff at particular times and affect what he could see or the response times to unexpected events. Mr Keramidas was not in a position to articulate specifically the consequences of Dr Casey’s report. He was of the view that he would need to talk to the other experts involved in the case, presumably including Dr Casey, in order to formulate precisely how his opinion had changed.
Senior counsel for the defendants indicated that his understanding (and it was put no higher than that) was that any changes arising out of the further investigations of Dr Casey could be addressed by a joint meeting of the experts taking approximately a couple of hours. He did, however, indicate that it was proposed to have Dr Casey produce a further report which would provide a more detailed explanation of the consequences of the increase in power to the accident motor.
Consideration and conclusion
While the submission of the plaintiff as to the effect on the estimated maximum and minimum speeds identified at page 345 of exhibit 1 appears, in the light of the evidence of Mr Keramidas on the voir dire, to be generally accurate, Mr Keramidas’ evidence does disclose that there may be some consequential effects on other aspects of the experts’ opinions arising from the increase in acceleration to the accident motor’s maximum speed. Therefore it is not possible to say that there will be no likely change to the opinions expressed in the joint expert report or that any changes will be insignificant.
I also accept that if the evidence is to be led then the plaintiff needs a fair opportunity to get advice upon it and respond to any such evidence. That opportunity must have regard to the fact that the plaintiff has not, to date, found it necessary to serve any expert evidence from a mechanical or electrical engineer. Clearly providing this opportunity has the possibility to disrupt the orderly progress of the hearing and, worse, the potential to result in the hearing being unable to be completed within the allotted time and hence having to be adjourned for a significant period before it can be completed. I refer to “possibility” and “potential” because at this stage the full consequences of the new evidence cannot be assessed. Senior counsel for the plaintiff quite properly indicated that it may be possible for the plaintiff to fairly respond to the additional evidence in a way which means that the case can be completed within the allotted time. While it is difficult to assess the potentially disruptive consequences at this time I have also had regard to the fact that the case is a significant one where damages, if liability is established and subject to any consideration of contributory negligence, have been agreed at $12 million. Further it is one where the plaintiff, who is a quadriplegic, has a very strong interest in having the proceedings determined promptly.
An important consideration as to whether or not to permit the evidence is the reason or explanation for its late service. I accept the submission of senior counsel for the defendants that the reason that the report was served late was that it was an issue which only became apparent upon provision of the joint expert report to the parties. Having regard to the date of the joint expert report any issues arising out of that expert report could only be addressed late. The joint expert report was prepared outside the timetable provided for by the directions made by the Court but, in the period prior to the commencement of the hearing, the parties appeared to be content with such a situation because they were satisfied that the joint expert process was proceeding in an orderly and constructive fashion. The terms of the joint expert report appear to me to bear out the fact that the experts have cooperated in order to produce a report which addresses the relevant issues and which is of assistance to the Court. Further it is important to note that the directions that the Court made contemplated that further expert reports going to liability were permitted to be served by 29 May 2015, that is, within two weeks after the completion of the joint expert report.
Although arising out of the terms of the joint expert report the additional report of Dr Casey was clearly commissioned by the defendants in order to advance their forensic interests. That is understandable. The issue which Dr Casey’s report addresses does appear to me to be a fundamental one which arises out of the terms of the joint expert report, namely, the discovery by the experts that a change in the controller for a motor nominally rated at a particular number of watts could substantially change its performance. It is not unusual and quite appropriate that cooperative testing by experts subject to the expert witness code of conduct may well generate new and potentially unexpected issues that need to be investigated. If the experts do not of their own initiative undertake that further investigation it is appropriate that parties, after the joint expert process is concluded, may seek to direct the experts to those additional issues. In the present case that possibility appears to have been contemplated by the timetable set by the Court on 19 March 2015. Whether or not further expert reports arising out of such a request can be admitted into evidence is very much dependent upon the circumstances. However in this case the effect of the controller on the performance of the accident motor does appear to me to be a core issue which may affect the validity of the conclusions (or some of them) in the joint expert report and therefore is a matter which should be permitted to be the subject of evidence so long as the plaintiff has a fair opportunity to deal with it. The case is, therefore, different to other situations where reports are sought to be served late in which the explanation for late service is less likely to be persuasive such as:
(a)economic or other decisions to brief counsel at a late stage during the course of preparation for a hearing;
(b)a lack of diligence on the part of the lawyers responsible for preparation of the case;
(c)an unexplained change in forensic position.
In my view substantially because:
(a)the line of enquiry leading to the new expert material has arisen directly and obviously out of the terms of the joint expert report; and
(b)the orders of the Court previously made contemplated the possibility that further individual expert reports could be served following the preparation of the joint expert report; and
(c)there appears on the information available to me now to be reasonable prospects that the admission of the new material will not prevent the case from being concluded in the time available;
I conclude that, notwithstanding that the report was served later than the directions permitted it to be served, the report should be admitted into evidence.
I will therefore admit the report of Dr Casey dated 28 August 2015. That means that all of the objections to the defendants’ expert liability bundle which became exhibit 5 have been dealt with. I deferred ruling on the defendants’ general objections to the reports in exhibit 1 based on the existence of the Casey report but as a consequence of my decision in relation to the Casey report I reject those general objections and admit the expert reports in exhibit 1 including, for the avoidance of doubt, the report of Mr Johnston of 27 August 2015 and the joint expert report dated 24 August 2015.
That course will also generate the need for some further directions. Subject to any submissions of the parties I propose to make directions and orders to the following effect:
- The defendants serve upon the plaintiff any further report from Dr Casey and Mr Keramidas arising out of the inspection by Dr Casey of the controller of the motor involved in the accident by 4.30 pm today.
- The plaintiff serve a further report from Mr Joy, Mr Johnston or any other expert responding to the report of Dr Casey dated 28 August 2015 or the reports served pursuant to the previous order by a date to be fixed.
- That each expert participate in a further meeting either in person or by telephone not later than a date to be fixed after I have heard submissions.
- I will hear the parties as to whether or not a further joint expert report should be prepared arising out of such a meeting.
- I will reserve the question of costs arising out of the admission of the report of Dr Casey dated 28 August 2015.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 1 February 2016 |
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