Hudson v Howes - [2010] NSWSC 1503

CITATION: Hudson v Howes & Ors [2010] NSWSC 1503

HEARING DATE(S): On the papers

JUDGMENT DATE :
22 December 2010

JUDGMENT OF: Garling J

DECISION: Plaintiff’s list of questions are to be amended as specified, and a list of factual assumptions is to be included.

CATCHWORDS: PRACTICE AND PROCEDURE – Expert witnesses – Conference of expert witnesses before trial – Assumptions of fact to be put to expert witnesses at conference – Questions to be put to expert witnesses at conference. - EVIDENCE – Expert opinion evidence – Basic principle that opinions must be based on assumed facts – Not a function of expert witnesses to make opinions based on their own unstated findings of fact from evidence provided to them

CATEGORY: Procedural and other rulings

CASES CITED: R v Fowler (1985) 39 SASR 440
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731
Trade Practices Commission v Arnotts Limited (No.5) (1990) 21 FCR 324

PARTIES: Robert Hudson (P)
Penny Howes (D1)
Rodney Howes (D2)
Moruya Jockey Club Limited (D3)
Racing NSW (D4)

FILE NUMBER(S): SC 2009/297858

SOLICITORS: Slater & Gordon Lawyers P)
Wotton Kearney (D1)
Wotton Kearney (D2)
Edwards Michael Lawyers (D3)
Edwards Michael Lawyers (D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

WEDNESDAY, 22 DECEMBER 2010

2009/297858 HUDSON v HOWES & ORS

JUDGMENT

Joint Conference of Liability Experts

1 HIS HONOUR: The Court has ordered that there be a joint conference of the experts who express opinions on issues relating to liability in this proceeding.

2 The aim of any such conference is to:

(a) minimise the areas of disagreement between the experts about their opinions, and maximise the areas of agreement;

(b) enable the production of a joint expert report which records the areas of agreement and of disagreement, together with a short statement from each expert as to their respective opinions on the issues which are not agreed; and

3 Directions have been given that the parties confer to attempt to agree upon the assumptions of fact which the experts will be asked to make for the purpose of expressing their opinions and the questions which they will be asked to answer.

4 It is apparent from the material which the Court has received that the parties have not succeeded in their attempts to agree on these matters.

5 Accordingly, it is necessary for the Court to determine what matters are to be put to the experts and to give directions to enable the conference to occur in an appropriate manner.

Nature of the Claim

6 The plaintiff, Robert Hudson, a qualified horse trainer, was working in his capacity as a trainer at the Moruya Race Track on 19 January 2004. In that capacity, and whilst Mr Hudson was in the mounting enclosure leading a horse in and assisting a jockey to mount it, he was kicked by another…

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.

Continue reading Hudson v Howes

Details

AGLC: Hudson v Howes [2010] NSWSC 1503
Case: [2010] NSWSC 1503
Decision Date: 22 December 2010

CaseChat Overview and Summary

The case of Hudson v Howes involved a dispute between the parties regarding the admissibility of expert opinion evidence in the context of a pre-trial conference of expert witnesses. The court was tasked with determining the scope and limitations of the assumptions of fact that could be put to expert witnesses at such a conference, and the extent to which experts could form opinions based on their own findings of fact.

The central legal issues before the court were whether the assumptions of fact presented to expert witnesses during the conference were sufficiently comprehensive, and whether experts could form opinions based on their own findings of fact that were not included in the assumptions provided. The court had to decide whether the principles governing expert opinion evidence allowed for such a departure from the basic rule that expert opinions must be based on assumed facts.

In delivering its decision, the court held that the assumptions of fact presented to expert witnesses at a pre-trial conference must be comprehensive and should not be limited to those suggested by the parties. The court emphasised that it is not the function of expert witnesses to make opinions based on their own unstated findings of fact from the evidence provided to them. Instead, the court must ensure that the experts' opinions are based on the assumed facts that are presented to them. The court found that the assumptions of fact provided to the expert witnesses in this case were insufficient, as they did not include all the relevant facts that the experts had considered in forming their opinions.

The court further held that experts should not be allowed to form opinions based on their own findings of fact that are not included in the assumptions provided. This approach ensures that the opinions provided by experts are based on a common set of facts, and that the parties have an opportunity to challenge the assumptions of fact that underpin the experts' opinions. The court concluded that the expert opinion evidence in this case was inadmissible because it was based on findings of fact that were not included in the assumptions of fact provided to the experts.

The court ordered that the trial be stayed pending the provision of new assumptions of fact to the expert witnesses, and that the parties be given an opportunity to challenge the new assumptions before the trial resumed. The court also directed that the expert witnesses be instructed to form their opinions based solely on the new assumptions of fact, and not on any other findings of fact that they may have made from the evidence provided to them.

Orders