Hubbard v CPB Contractors Pty Limited - [2020] NSWSC 1921

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:
E G Romaniuk SC with P Menary (Plaintiff)
M Hutchings (Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2014/280071
Publication restriction: None

REVISED EX TEMPORE Judgment

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.
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.
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]
1. (2011) 243 CLR 588; [2011] HCA 21.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1921
Decision Date: 08 December 2020

CaseChat Overview and Summary

In Hubbard v CPB Contractors Pty Limited, the Federal Court of Australia was tasked with determining the admissibility of a report prepared by an expert witness. The dispute involved the plaintiff, Mr Hubbard, who was injured while working on a construction site and sought damages from the defendant, CPB Contractors Pty Limited. The key issue before the Court was whether the report, which contained the expert's opinion on the cause of the plaintiff's injury, was admissible as evidence. The Court needed to determine the relevance and the nature of the contents of the report in relation to the case.

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