| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HILLMARL PTY LTD -v- DOVEBEACH PTY LTD t/as MANDURAH COMBINED TYRE AND BATTERY SERVICE [2002] WADC 234 CORAM : COMMISSIONER GILES HEARD : 21-25 OCTOBER 2002 DELIVERED : 7 NOVEMBER 2002 FILE NO/S : CIV 780 of 1999 BETWEEN : HILLMARL PTY LTD (ACN 065 609 850) Plaintiff
AND
DOVEBEACH PTY LTD t/as MANDURAH COMBINED TYRE AND BATTERY SERVICE
Defendant
MILLERS TYRE SERVICE (WA) PTY LTD (ACN 009 037 923)
Third Party
Catchwords: Expert evidence - Admissibility - Area of expertise - Adequacy of qualifications - Experience rather than formal qualifications
Legislation: Nil
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Result:
Evidence ruled admissible Representation:
Counsel:
Plaintiff : Mr M R Herron
Defendant : Mr A S Stavrianou
Third Party : Mr R J L McCormack
Solicitors:
Plaintiff : McAuliffe Williams & Partners
Defendant : Pynt & Partners
Third Party : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Ballato v Pezzano, unreported; SCt of WA; Library No Library No 930474; 26 August 1993
Clark v Ryan (1960) 103 CLR 487
Marchesano v R [2000] WASCA 225
Case(s) also cited:
Nil
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1 COMMISSIONER GILES: I am asked to rule on the admissibility of reports, and other documents prepared by Mr Robert Mackinlay and evidence proposed to be given by Mr Mackinlay who is called as an expert witness by the plaintiff in these proceedings.
2 The proceedings relate to the cause or causes of an accident on 1 March 1998, in which a prime mover veered off a road, and crashed, killing the driver. The plaintiff's case is that the front right steerer tyre of the prime mover blew out, causing the driver to lose control of the vehicle. The defendant who supplied a tyre to the plaintiff prior to the accident, denies that this was the cause of the accident. However, it says that if the tyre that it sold to the plaintiff did fail and cause the accident, then it was due to the driver's use of the tyre after it was sold by the defendant, and/or to the mechanical condition of the truck. 3 In the third party proceedings, the defendant says that if it is found that the tyre it had sold to the plaintiff failed, and this caused the accident, then this was due to the third party's negligence or breach of contract in selling it the tyre. 4 The third party, admits it sold a tyre to the defendant knowing it would be immediately sold to the plaintiff for use as a front steerer tyre on the deceased's truck. It does not admit that the tyre alleged to have blown out was the tyre it sold to the defendant. It says that if it is the tyre it sold, which is alleged to have blown out, that it did not in fact blow out. Further, or in the alternative, the third party says that if the tyre caused the accident, it had been damaged since the third party sold the tyre, or had been re-grooved, or became worn after it was sold, or had been subject to undue stress as a result of steering defects on the truck. 5 As will be seen from this brief outline of the respective parties' positions, the reason for the tyre failing is a central issue in the proceedings. 6 The plaintiff has called Mr Mackinlay as an expert witness on tyres. He has examined a tyre, which on the plaintiff's case is the tyre in question, and has written two reports and other documents. The plaintiff seeks to rely on these reports and to call Mr Mackinlay to give evidence about, and explain his findings. The defendant and the third party contend that Mr Mackinlay's evidence, is inadmissible because he is not sufficiently qualified to give evidence as an expert, and that he has failed to establish and cannot establish, as a fact, those matters relied on to reach his conclusion.
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7 As a consequence of these objections, Mr Mackinlay gave evidence as to his qualifications and expertise and was cross examined.
8 Mr Mackinlay has a trade certificate as an automotive mechanical engineer. He initially qualified in the United Kingdom and received his Australian certification in or about 1983 when he completed a one or two year trade certificate course at Carlisle Technical College. He has been an examiner for the Institute of Automotive Mechanical Engineers and is an Associate of the Society of Automotive Engineers. He described an automotive mechanical engineer as simply being "a mechanic". He is not himself an automotive engineer, describing that as more of the professional rather than the hands-on area of expertise. 9 Mr Mackinlay gave evidence that he has worked in the automotive industry specialising in tyres from November 1997 to the present. From November 1979 he has worked principally for various entities associated with the production and sale of tyres, including Goodyear Tyre and Brake Service, South Pacific tyres (the manufacturers of Goodyear, Dunlop, Olympic and other tyres) and Goodyear Earthmoving Australia Pty Ltd. In October 1997 he ceased being employed by Goodyear, and since that time to the present he has operated a consultancy, including being engaged by Goodyear as a field engineer. This is for a region in Asia, from the Russian south border to Malaysia, and involves assessing the performance of various tyres in the mining industry, and making recommendations about the design of tyres in light of local conditions. He also consults to the legal and insurance industries concerning matters to do with tyres. 10 During his working life he has had considerable experience with assessing the performance of tyres, including normal passenger motor vehicles, light trucks and prime movers, and tyres used in the heavy mining industry, which is his current area of specialisation. 11 Mr Mackinlay has no formal scientific training beyond his trade certificate. However in the years since he first began working in the tyre industry in November 1979 he has extensive practical experience in all aspects of tyre performance. This has included testing tyres under various conditions (not in a laboratory but under real conditions), examining the causes of various performance defects and making recommendations to manufacturers concerning the rectification of those defects.
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12 He has both been trained in these areas by engineers and has trained others, in particular retail store personnel, in matters to do with tyre construction and performance.
13 From time to time has worked with scientifically trained technicians in the tyre industry such as engineers and chemists. 14 Mr Mackinlay agreed that he had never driven a prime mover truck and has never worked on one in the sense of repairing mechanical faults of a prime mover. He readily agreed that he had no qualifications in accident investigation although he has given advice to insurers concerning the role of particular tyres in motor vehicle accidents. 15 The report of Mr Mackinlay dated 18 September 1998, identifies a particular tyre which was provided to him for inspection and sets out the tread depths remaining on various locations on the tyre. This is the tyre alleged to have been on the truck and to have blown out immediately prior to the accident. 16 The report provides some details concerning the provenance of the tyre. Mr Mackinlay comments on the wear pattern and tread depth on the tread of the tyre and other features of its condition which he ascertained from examination of it. 17 He speaks in his report of the corrosion present throughout the steel cable structure of the carcase and belt package. At pp 16 – 18 of his report, he makes some comments under the heading "Conclusions" which include, controversially for this case, comments on the likely effect of defects in the steering mechanism of the prime mover on the tyre failure. 18 It is argued by counsel for the third party, Mr McCormack that Mr Mackinlay simply does not have the qualifications to comment on any of these matters at all. He complains that the report provides no details as to the author's instructions nor to the alleged facts upon which the report is based. He points to concessions made by Mr Mackinlay in cross-examination that he has conducted no scientific study, nor does have the qualifications to conduct such a study into the precise mechanism whereby the tyre had become worn, or failed. 19 Mr Stavrianou for the defendant, has queried Mr Mackinlay's qualifications reporting a number of sections of the report, in particular challenging the witnesses' expertise to reach the conclusions between pp 16 and 18 of the report.
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The law of expert evidence
20 In order for expert opinion to be accepted by a court two fundamental things must be established. The first of these is that there must be a recognised body of knowledge which bears on the fact in issue in the case The evidence of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance (Clark v Ryan (1960) 103 CLR 487). 21 Secondly, the witness who purports to be an expert must be sufficiently expert in that body of knowledge to enable him or her to assist the court Ballato v Pezzano, unreported; SCt of WA; Library No Library No 930474; 26 August 1993 at 5). 22 A course of study of course is not of itself necessary. Intensive practical experience in some fields may be sufficient in the absence of formal technical qualifications. This was acknowledged by the High Court in Clark v Ryan (supra) at 491, and has been further acknowledged in a number of decisions in the WA Supreme Court, including, Ballato v Pezzano (supra), at 6 and Marchesano v R [2000] WASCA 225 at 7 23 It must also be remembered that expertise is often a matter of degree. 24 The court must not allow the calling of a purported expert whose role is simply to put in "apparently scientific terms" propositions which have no basis in a scientific discipline or body of knowledge. 25 It goes without saying that the alleged facts upon which the witness bases his or her opinion must also be declared by the expert in his or her report or viva voce evidence, and independently proved to the requisite standard. 26 I have no doubt that there is a recognised and organised body of knowledge concerning the construction, design, and performance characteristics of tyres. I have no doubt that various scientific disciplines such as automotive engineering, chemistry, and many other fields of scientific endeavour all have some contribution to make to that organised body of knowledge. 27 This is not a question upon which a judge or jury could be expected to have the ability to make a decision without the assistance of expert knowledge. The construction and performance of a tyre under various
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conditions, particularly on a heavy vehicle, is beyond the common knowledge of the average person. Although the fundamentals of tread depth and inflation of a tyre should be known by most people who drive a vehicle, this is a far cry from the level of expertise required to comment on the failure of a tyre in a particular case. This is in essence acknowledged by the defendant and third party to this action already, by foreshadowing their intention to call expert witnesses themselves on the reasons for the failure of the tyre. 28 The next issue to be determined is whether Mr Mackinlay is an expert within the meaning of the law. 29 I am of the view that his extremely lengthy experience specialising in the design and performance of tyres, qualifies him in terms of a "course of previous habit …" as referred to by Dixon CJ in Clark v Ryan. This is clearly the present views of the Supreme Court, the point having been thoroughly discussed by the Full Court in Marchesano (supra). 30 As observed above, there are many disciplines which will have expertise to bring to bear upon a study of a particular object such as a tyre. Possibly only a complete picture could be drawn with the contribution by experts in some or all of those fields. 31 I consider that Mr Mackinlay is entitled to offer an opinion concerning the reasons, for the tyre he has been asked to examine, failed. Whether his opinion is surpassed by individuals with different qualifications who maybe called by the defendant or the third party is a matter for consideration after having heard that evidence. 32 The complaints made by Mr McCormack concerning the form of the report, and the failure of Mr Mackinlay to set out his instructions clearly, is in my view a matter of form. One becomes accustomed to seeing expert reports set out in a particular way which is thought to be convenient for the court. However, the presentation of Mr Mackinlay's reports do not go to his expertise as such. They simply go to his experience in providing evidence for a court, which in itself is not a recognised area of expertise. Of course if in cross examination it emerges that Mr Mackinlay's instructions, or other assumptions underlying his report are flawed, the weight of his opinion may well diminish or disappear altogether. 33 The adequacy of the processes engaged in by Mr Mackinlay, the facts or alleged facts with which he was provided, the tests he did or did not conduct and the basis upon which he has drawn certain conclusions
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will no doubt be subject to vigorous cross-examination. This is entirely proper. However, none of these matters go to whether Mr Mackinlay has the appropriate level of expertise in the field to satisfy the requirements of expert evidence. In my view he does, and the plaintiff should be permitted to tender his report and call him to give evidence. Ultimately, whether that report or parts of it are accepted by the court is a question that can only be determined at the conclusion of all the evidence including all of the expert evidence to be adduced by the parties. 34 I am also asked to rule on what has been termed the "pureClark and Ryan" point. This is because a paragraph appears in one of Mr Mackinlay's reports which deals with the effect on the prime mover on the tyre blowing out. 35 In Clark v Ryan the court ruled as inadmissible evidence from a consulting engineer which purported to describe the movement and tendencies of a semi trailer in an articulated vehicle. This was because it was held that the evidence of that particular witness on this point lay outside his own expertise, and some of it was within the ordinary capacity of the jury (per Dixon J at 492). The purported expert was relying on his experience rather than any course of study, and his experience was principally as an engineer concerned with the construction and repair of engines and building construction (Menzies J at 502). 36 The case is not authority for the proposition that no expert can ever comment on the behaviour of an articulated vehicle involved in an accident. It was decided on the facts before the court at that time. While bearing a superficial resemblance to the facts in this case, it dealt with a different kind of accident, different issues, a different area of expertise, and all 42 years ago when fields of knowledge were far less numerous and sophisticated than they are today.
Admissibilty of MFI-11 37 MFI-11 was a statutory declaration sought to be tendered through an investigator, Mr Luck. The statement was made by a Mr Sherry, the manager of the defendant's Mandurah branch office. It is put by the plaintiff as an admission against interest, and therefore admissible as an exception to the hearsay rule. 38 Objections were made by the third party and the defendant concerning its admissibility. I have requested further submissions from the parties concerning two issues relating to this document:
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39 It would be convenient if written submissions could be made on this matter and I will hear counsel's proposals as to the timing of these submissions. The court will rule on the document at the commencement of the adjourned proceedings on 10 December 2002.
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