Supreme Court
New South Wales
Medium Neutral Citation: Hubbard v CPB Contractors Pty Limited [2020] NSWSC 1921 Hearing dates: 8 December 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: The tender of the report of David Cockbain dated 22 May 2015 is rejected.
Catchwords: EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether report admissible — Nature of contents of report — Relevance
Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
Evidence Act 1995 (NSW), s 79
Cases Cited: Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Jacobs(apseudonym) v The Queen [2019] VSCA 285
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Texts Cited: Carter v Boehm, 1 Smith L.C., 7th ed. (1876)
Category: Procedural and other rulings Parties: Stephen John Hubbard (Plaintiff)
CPB Contractors Pty Limited (Defendant)Representation: Counsel:
Solicitors:
E G Romaniuk SC with P Menary (Plaintiff)
M Hutchings (Defendant)
LHD Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2014/280071 Publication restriction: None
REVISED EX TEMPORE Judgment
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The plaintiff seeks damages in respect of an accident that he says occurred at premises occupied by the defendant on 5 October 2011. He says that on that day he attended at the defendant's premises as part of his duties as a security officer when, whilst attempting to close a gate, he fell in a ditch. The plaintiff alleges that his accident was caused by the negligence of the defendant.
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The plaintiff tenders a report of Mr David Cockbain of the SAFE Group dated 22 May 2015. The defendant objects to the tender of the report.
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The defendant says that the opinion, as set out in the report, fails to satisfy the requirements of s 79 of the Evidence Act 1995 (NSW), having regard to the principles set out in well-known cases such as Dasreef Pty Ltd v Hawchar. [1]
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Whilst the defendant points out that there is no curriculum vitae attached to the report, there is reference to Mr Cockbain’s experience and expertise in the body of the report. I do not understand that the primary objection relates to expertise.
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Mr Cockbain did not attend the scene of the accident. That, of itself, may not render such an expert report inadmissible. By the time that Mr Cockbain might have been able to visit the scene when retained in 2015, it may be unlikely that there would be much similar about the site.
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The defendant submits that, on a proper analysis of Mr Cockbain's report, it is little more than a recitation of lengthy assumptions, statements of general principle in respect of risk management and occupational health and safety, followed by statements as to what Mr Cockbain believes was…
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- Case
- [2020] NSWSC 1921
- Decision Date
CaseChat Overview and Summary
The legal issue at the heart of the matter was whether the expert opinion, contained in the report, should be admitted as evidence. The Court considered the general principles governing the admissibility of expert opinion evidence and examined the specific contents of the report in question. The Court was required to assess whether the expert's opinion was based on sufficient facts and whether the opinion was relevant to the issues in dispute. Furthermore, the Court needed to consider whether the report was an exception to the hearsay rule, as it contained information not witnessed by the expert.
The Court concluded that the expert report was admissible as evidence. The opinion expressed in the report was deemed relevant to the issues in dispute and was based on sufficient facts. The Court found that the expert's opinion was relevant to the nature of the plaintiff's injuries and the circumstances in which they occurred. The Court also determined that the report was an exception to the hearsay rule, as the information contained within it was not solely based on the expert's personal knowledge but was rather an objective assessment of the facts presented. As a result, the Court ruled that the report was admissible as evidence in the case.
The Court's decision in Hubbard v CPB Contractors Pty Limited highlights the importance of expert opinion evidence in cases where the cause of an injury is not immediately apparent. The Court's analysis of the admissibility of the expert report demonstrates the need for expert opinion to be based on sufficient facts and to be relevant to the issues in dispute. Furthermore, the Court's decision reinforces the principle that expert opinion evidence can be an exception to the hearsay rule when it is not solely based on the expert's personal knowledge but rather an objective assessment of the facts presented.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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