Ibrahimi v Commonwealth of Australia (No 3)

[2016] NSWSC 1438

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahimi & Ors v Commonwealth of Australia (No 3) [2016] NSWSC 1438
Hearing dates:	30 September 2016
Date of orders:	04 October 2016
Decision date:	04 October 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [73]
Catchwords:	EVIDENCE – Expert opinion evidence – Admissibility of expert report – Whether witness appropriately qualified to express opinions – Whether the reasoning process leading to those opinions was exposed in the report – Evidence excluded
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ocean Marine Mutual Insurances Association (Europe) OV v Jetopay Pty Limited (2001) 20 FCR 146; [2000] FCA 1463
Category:	Procedural and other rulings
Parties:	Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant
Representation:	Counsel:    M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O’Meara and R Jedrzejczyk - Defendant   Solicitors: The People’s Solicitors - Plaintiffs Australian Government Solicitor - Defendant
File Number(s):	2013/377410
Publication restriction:	Nil

Judgment

1. On 15 December 2010 an incident occurred off the coast of Christmas Island, as a result of which a Suspected Illegal Entry Vessel (“SIEV”) was shipwrecked. A number of persons were injured in that incident, and a number of persons died.  The plaintiffs, who are said to belong to a group of persons who have suffered loss and damage by reason of the incident, have brought proceedings against the Commonwealth of Australia.

2. It is part of the plaintiffs' case that the Commonwealth was involved in an ongoing operation for the interception of SIEVs in the territorial waters north of Christmas Island. One of the principal issues in the proceedings is whether or not the Commonwealth owed the passengers on board the SIEV a duty to take reasonable care so as to avoid foreseeable harm to them.  Broadly speaking it is the Commonwealth’s position that no duty of care was owed, and that if it was, it was not breached in all of the circumstances. Before the hearing commenced before me earlier this week, the proceedings had been the subject of extensive case management. 

3. The plaintiffs seek to rely upon the expert report of Roderick Douglas Pike dated 24 March 2016. The defendant took objection, in effect, to the entirety of that report.

4. I heard argument in relation to the defendant’s objections on 30 September 2016. At the commencement of the proceedings on the next sitting day, namely 4 October 2016, I made orders excluding those parts of the report to which objection had been taken. My reasons for that determination now follow.

GENERAL PRINCIPLES REGARDING ADMISSIBILITY OF EXPERT EVIDENCE

5. Before dealing with the specific parts of Mr Pike’s report to which objection has been taken, it is appropriate to set out some of the principles which govern the admission of expert evidence.

6. First and foremost, the admission of such evidence is governed by s. 79 of the Evidence Act 1995 (NSW) (“the Act”) which is in the following terms:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

7. In order for evidence to be admissible as evidence of expert opinion, it is necessary to establish that the opinion is wholly or substantially based on specialised knowledge, and further that such specialised knowledge is based on the person’s training, study or experience: Ocean Marine Mutual Insurances Association (Europe) OV v Jetopay Pty Limited (2001) 20 FCR 146; [2001] FCA 1463 at [13].

8. In Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Heydon JA (as his Honour then was) set out (at [41]) a number of principles regarding the admissibility of such evidence. Those principles included the following:

if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge;

there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, he or she has become an expert;

the opinion expressed must be wholly or substantially based on the expert knowledge of the witness;

so far as the opinion is based on facts observed by the expert, those facts must be identified, and their admissibly proved, by the expert;

so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way;

it must be established that the facts on which the opinion is based form a proper foundation for such opinion;

there must be a demonstration or examination of the scientific or other intellectual basis of the conclusions reached. In other words, the evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts which are assumed or observed, so as to produce the opinion which is propounded;

if all of these matters are not explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge; and

if the court cannot be sure of that, the evidence is strictly speaking not admissible. So far as it is admissible, it is of diminished weight.

9. These observations were approved in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37].

MR PIKE’S QUALIFICATIONS

10. In view of some of the objections taken by senior counsel for the defendant to Mr Pike’s report, it is appropriate that I set out in full those passages of the report upon which the plaintiffs rely in order to establish his expertise.

11. At p. 2 of his report, under the heading “Expertise” Mr Pike stated the following:

“My curriculum vitae is attached to this report as Exhibit RDP2. In relation to this case I have written three books about the handling and operation of boats in rough seas, namely Fast Boats and Rough Seas, Fast Boat Seamanship, and Powerboats in Rough Seas. I have also written the Fast Boat Seamanship Manual for the US Coast Guard and The Complete RIB Manual, the latter covering all aspects of the construction, operation and handling and maintenance of Rigid Inflatable Boats (RIBs). This latter book was written to mark the 50th.anniversary of the building of the first RIB and I was involved in the design, building and testing of that first RIB. I have since been involved in the design, development, operation and testing of RIBs of a wide variety of sizes.

In my work as an Inspector of Lifeboats for the Royal National Lifeboat Institution (RNLI) in the UK I had considerable experience in the operation of boats in rough seas including the testing of new designs of lifeboats in bad weather and the evaluation of various RIB rescue boat designs. I also had experience of organising search and rescue operations involving lifeboats and other vessels.

I have carried out training and familiarisation courses on rescue and patrol boats for the British Royal Marines, the Singapore Police Coast Guard, RNLI lifeboat crews and the US Coast Guard This communication is confidential and is prepared for the dominant purpose of providing the Plaintiff with professional legal services relating to an Australian proceeding

Specific to this case I have experience of driving Zodiac and Naiad RIBs in rough seas and have driven catamaran boats of various sizes.

12. Annexed to his report was a Curriculum Vitae. Again, in view of the fact that I was taken to that document at some length in the course of submissions by counsel for the plaintiffs, it is appropriate that I reproduce it in full:

CURRICULUM VITAE

Name: RODERICK DOUGLAS PIKE (DAG PIKE)

Date of Birth: 28.1.33

Marital Status: Married. Four Children, Seven Grandchildren

Nationality: British

Address: 12, Upper Cranbrook Road, Bristol BS6 7UN

Phone: [phone]

Email: [email protected]

QUALIFICATIONS

Master (H.T.) Certificate of Competency 1958

Yachtmaster Ocean Certificate of Competency 2012

VHF Operators Certificate

First Aid Certificate

PROFESSIONAL BODIES

Fellow and ex-Member of Council of Royal Institute of Navigation.

Fellow of the Institute of Marine Engineering, Science and Technology

Associate Fellow of the Nautical Institute

AWARDS

Castrol Trophy 1

986

Bluebird Trophy 1986

Runner up to Yachtsman of the Year 1989

Pioneri di Mare 2002 (Italian)

Runner up to Yachtsman of the Year 2008

Lifetime Achievement Award 2008

Lifetime Achievement Award 2009

MEMBERSHIP

Committee member Westbury Park Community Association

Committee member Royal Institute of Navigation Small Craft Group

Member of All-party Ports and Maritime Group-House of Commons

Member of All-party Writers Group-House of Commons

POSITIONS HELD

1950 - 1953 Merchant Navy Apprentice, Nourse Line

1953-1954 Deck Officer, New Zealand Shipping Company

1954-1963 Deck Officer rising to Captain, Trinity House Lightvessel Service.

1963-1973 Inspector of Lifeboats, Royal National Lifeboat Institution.

1973-1974 Cormorant Fisheries Ltd.

1973-date Marine Surveyor, Consultant, Writer and Author

1983-1995 European Agent for Offshore Surveys (Overseas) Ltd., Consultancy.

1993-2001 Editor of World of Power (part time)

1995 - Started Dag Pike Associates – a design and consultancy company. Expert witness and marine specialists

EXPERIENCE

Extensive experience in most aspects of the marine world, particularly high - speed craft. This is largely based on practical experience and is particularly related to fast monohulls and catamarans up to 60 metres

in length and speeds up to 100 knots. Experience in rough weather evaluation gained when testing new designs of lifeboats and rigid inflatables for rescue work. Experience in evaluating all types of power

craft, in the leisure, military and workboat categories on a practical and analytical basis in order to identify and offer solutions to handling and propulsion problems. Experience with very high performance in offshore racing, and testing and evaluating new designs including ground effect craft. Extensive experience with gas turbine powered boats of a wide variety of types over 30 years with speeds up to 130 - mph. Recently drove a 7 metre gas turbine hydroplane at 150 mph and a 36 foot catamaran at 155 mph. As a writer, many articles have been produced about all aspects of shipping, yachting and workboats both in terms of marketing and technical matters (see book list below).

Experience with the fishing industry including spending time at sea with fishing vessels, carrying out survey work on fishing vessels, involved with the marketing side of the fishing industry and writing Fishing Boats and Their Equipment, a book to guide small fishing boat owners and operators.

Experience in administration and organisation with voluntary bodies gained from 10 years with the RNLI where responsibilities included the administration of 50 lifeboat stations covering boat and facility maintenance, and repair and crew and support team efficiency as well as training. Experience in organising and budgeting for major projects such as Atlantic and Round the World record attempts.

Extensive experience of the yacht market worldwide, particularly the production powerboat and the cruising yacht sectors. Market surveys and assessments have been carried out for yacht and workboat builders and engine manufacturers, as well as making assessments about the future potential of markets based on financial and political factors. Clients have also included major propulsion and electronic companies both in the UK and abroad. Consultant to electronic companies on new product development. Consultant to propulsion companies on high speed ferry designs and requirements. Consultant on fast ferry and RIB operations in the Scilly Isles and the West Coast of Scotland. Consultant on hull design and modifications to increase speed and performance. Consultant to several marine companies on public relations and promotion.

Experience in the design and development of wheelhouse design and control systems for high-speed craft to optimise operations under high speed and rough sea conditions. Consultancy work in the design and optimisation of wheelhouse design and associated electronics for high-speed craft and luxury motor yachts. Experience in the development and design of patrol boats, both military and para-military, and search and rescue craft, particularly high performance craft including seating, safety and security. Experience in the health and safety aspects of operating small craft, including yachts, work boat and fast craft including patrol boats and interceptors with particular application to shock mitigation. Development of a system to allow blind people to navigate at sea. Experience in negotiating and conflict resolution through work with the RNLI and through later work on various projects and consultancy work. Board experience as a member of the Council of the Royal Institute of Navigation for nine years.

Extensive experience in rigid inflatable development extending from developing and building the world's first craft of this type. Advising on the design and development of rigid inflatables for a number of clients. Retained as consultant by North Sea oil companies to develop rigid inflatables and their launch and recovery systems for use in offshore oil operations. Extensive experience in the development and evaluation of rigid inflatables used for patrol and rescue work. Also the development and testing of very high-speed rigid inflatables. Consultant to New Zealand RIB builder. Design and development work on all sizes of rigid inflatable. Patented launch and recovery davits for fast rescue boats that were subsequently built by Kenz in Holland. Experience and consultant on combined rescue and pilotage operations.

Extensive practical experience in rescue operations, having been rescued at sea 12 times and having rescued others 13 times. Also experience in coordinating search and rescue operations involving ships and offshore installations. Experience in developing and evaluating marine safety equipment.

Extensive training experience gained from training lifeboat crews in all aspects of navigation and boat handling. Training courses in boat handling and operation run for several North Sea oil operators mainly using rigid inflatables. Training courses for several para-military operators in high-speed boat operation and interception techniques. Patrol boat surveys and analysis for various authorities. Have recently written the Fast Boat Seamanship Manual for the United States Coast Guard, which covers every aspect of fast boat operations and use.

Powerboat race consultant to King Hussein of Jordan 1990. Consultant on Hoverspeed Great Britain and Destriero Atlantic record attempts. Project member for round the world record attempt.

Development of rig and platform evacuation systems based on 20 years' experience with offshore safety. Consultancy work for several offshore oil related companies. Extensive survey experience on fishing vessels, yachts and fast craft. Evaluation of alternative ferry designs for German company. Consultant to military authorities on navigation and communication electronics. Patrol boat surveys and consultancy in Sweden, Bahamas and Singapore. Wrote the Fast Boat Seamanship Manual for the US Coast Guard

Acting as expert witness in both civil and criminal court cases. These relate to a wide variety of subjects based on navigation, fast vessel experience, RIBs, weather and sea conditions, safety and seamanship. These cases have involved fishing vessel refits and condition, fast boat accidents, rigid inflatables, and with HM Customs and Excise on drug smuggling cases. References include the Treasury Solicitor and top maritime solicitors. Experience of critical analysis of evidence and statements. Experience of risk control and decision making

Market surveys relating to various aspects of the workboat, leisure and fishing boat industry.

Has acted as project director for the restoration of Virgin Atlantic Challenger II

Consultant and trials skipper on Wally Power 118 very high speed (70 knots) yacht project and adviser of several fast yacht projects. Extensive experience with fast motor yachts with speeds of over 50 knots. Has developed many advanced techniques for high speed navigation including specialised electronic navigation systems

Recently completed a contract with the Health and Safety Executive to study the fast rescue craft and their launch and recovery systems used in the North Sea Offshore Oil operations and to recommend improvements.

Observer on board an escort vessel in the second Cod War off Iceland

Observer on the tow out of the largest offshore gravity platform from Norway to the North Sea

Chairman of Shipping and Workboat Conference in Perth, Australia in 1992 and two Royal Institute of Navigation electronic navigation conferences. Chairman of Safety in RIBs conference at Weymouth Extensive experience of public speaking , TV and radio and in presenting papers at conferences

Skipper of Magellano 74 long range cruising yacht on pioneering 2000 mile Mediterranean voyage 2010

1948 Participated as crew in first ocean sailing race

1969 Participated in first Round Britain Powerboat Race

1984 Navigator of winning boat in Round Britain Race

1985 Navigator of attempt on Atlantic Record by Virgin Atlantic Challenger

1986 Navigator of successful Atlantic Record attempt by Virgin Atlantic Challenger II.

1987 Navigator of successful Round Ireland Record attempt

1988 Offshore powerboat racing World Championship winner.

1988 Navigator of attempt on Atlantic Record by Azimut Atlantic Challenger

1989 Navigator of Atlantic Sailing Record attempt

1990 Navigator Class Winner Venice to Monte Carlo Race

1991 Navigator Class Winner Venice to Monte Carlo Race

1992 Skipper and Navigator of successful attempt on Round Britain Record

1992 Navigator of successful attempt on London to Monte Carlo Record

1995 Navigator of rigid inflatable in 1000-mile race in Italy.

1996 Navigator of winning rigid inflatable in Round Scotland Race

2001 Navigator of successful attempt on Round Italy record

2001 Navigator on successful attempt on Monte Carlo to London record

2001 Navigator on successful attempt on Round Britain record

2002 Navigator of attempt on Gothenburg – Dover record

2002 Drove a gas turbine powered hydroplane at 150 mph

2003 Drove a 36 foot catamaran at 155 mph

2008 Navigator of winning boat in Round Britain Powerboat Race

2010 Travelled at 36 knots in a foil assisted sail boat

45 years experience of offshore powerboat racing at the top level.

Has made more attempts at the Atlantic record than anyone

Current projects include advising on the design of a high speed, self-righting patrol boat and developing designs for low motion superyacht tenders. Developing the world's fastest (60 knot) self-righting lifeboat

and autonomous rescue boats for ships.

PIONEERING EVENTS

Building the first RIB in the World Skipper of the World’s first large deep hull

Participating in the Round Britain Race in the World’s first stepped deep vee hull

The only two times winner of the Round Britain Powerboat Race

Navigator of the first boat to beat the Atlantic records of the ocean liners

Has participated in more Atlantic record attempts (6) that anyone

Oldest participant and winner of the 2008 Round Britain Powerboat Race at age 75

Conducted first 2000 miles sea trial on new Azimut Magellano 74 as skipper

Has promoted and encouraged safety at sea for over 40 years.

Involved in the development of advanced navigation techniques for high speed navigation.

BOOKS PUBLISHED

1974 Powerboats in Rough Seas, Adlard Coles

1976 Motor Sailers, Stanfords

1978 Electronic Navigation for Small Craft, Adlard Coles

1979 Fishing Boats and Their Equipment, FN Books

1988 2nd Edition of above book, FN Books

1992 3rd Edition of above book, FN Books

1982 Coal Transport, Financial Times

1983 Contributor to Encyclopaedia Britannica

1985 Blue Riband Atlantic Challenge, Virgin Books

1986 Electronics Afloat, Nautical Pub

1987 Sea Rescue, Sigma Projects USA.

1988 The Challenge of the Atlantic, Patrick Stephens

1988 Sea Rescue Units, Rourke Enterprises USA

1988 Practical Motor Cruising, Adlard Coles

1989 Fast Boats and Rough Seas, Adlard Coles

1989 Powerboat Cruising, Hearst Books USA

1990 Fast Boat Navigation, Adlard Coles

1991 Electronic Charts, Robertson

1992 Boat Electrical Systems, Adlard Coles

1993 Motor Sailers, Adlard Coles

1993 RORC Manual Of Safety and Survival, David & Charles

1993 RORC Manual of the Weather, David & Charles

1994 Inflatables, Adlard Coles

1995 The Sextant Simplified, Reeds.

1997 Electronic Charts, C-Map.

2002 Fast Boat Seamanship Manual – US Coast Guard

2003 Fast Powerboat Seamanship – International Marine USA

2006 Challenges – Dag Pike’s Autobiography - Bosun Publications

2008 50 ways to Improve Your Navigation – Adlard Coles

2008 50 ways to Improve your Weather Forecasting – Adlard Coles

2008 50 Ways to Improve Your Powerboat Driving – Adlard Coles

2008 Disasters at Sea – Adlard Coles

2009 Storms and Wild Water – Adlard Coles

2010 The Hidden Harbours of SW Britain – Imrays

2011 The Hidden Harbours of Wales – Imrays

2012 Cruising Under Power – Adlard Coles

2012 Cruising Under Sail – Adlard Coles

2013 The Complete RIB Manual – Adlard Coles

2013 The Hidden Harbours of the North West – Imrays

2014 Be Your Own Boat Surveyor – Adlard Coles

2014 Magnum Marine – Electra/Mondodori/Magnum

2015 Practical Navigation - Imrays

2015 The Hidden Harbours of the West Coast of Scotland - Imrays

PAPERS PUBLISHED

1982 Wheelhouse Design for Workboats - Workboat Conference, Brighton.

1982 Rigid Inflatables as Workboats - Workboat Show, New Orleans.

1984 Satellite Navigation for Yachts - Royal Institute of Navigation Conference, London

1985 Developments in Fast Rescue Craft - Netherlands Nautical Safety Institute

1987 High Speed Navigation - Royal Institute of Navigation

1991 Electronics for Superyachts - Superyacht Conference

1993 Fast Ferry Navigation - Journal of Navigation

1994 Critical Aspects of Fast Craft Operation - Norway

1995 The Collision Risk with Fast Ferries - Journal of Navigation.

1998 A Question of Speed - Safety of Navigation Conference

1999 Chairman of Safety in RIBs conference - RIBEX

2000 Collision Regulations and Fast Craft – Journal of Navigation

2001 Collision Regulations and Fast Craft - Journal of Navigation

2004 AIS – The Small Craft Point of View – RIN Conference

2005 The Health and Safety and Training for Fast Craft – RINA SURV Conference

2006 The Past, Present and Future of RIB Design – Keynote address at RINA RIB Conference

2007 Health and Safety Issues for Launch and Recovery Systems – ASNE Conference

2008 Defining Positions – Royal Institute of Navigation NAV 07

2009 Speed versus Seaworthiness – Royal Institute of Naval Architects SURV Conference

2008 Chairman of conference on electronic navigation - Royal Institute of Navigation

2009 The Past Present and Future of RIBs – IBEX Conference Miami

2010 Chairman of conference on electronic navigation – Royal Institute of Navigation

2015 A Holistic Approach to Shock Mitigation - Patrol and Riverine Conference, London

THE DEFENDANT’S OBJECTIONS TO THE REPORT

13. The defendant objected to a series of paragraphs in Mr Pike’s report. The admissibility of those paragraphs should be considered individually.

Paragraph 4 of the report

14. Paragraph 4 of the report is headed “Weather and sea conditions” and is in the following terms:

I have had access to the comprehensive weather report produced by the Bureau of Meteorology covering the period in which the incident occurred as well as various reports on the prevailing weather and sea conditions. From this it would appear that the wind was blowing from the WNW at between 25 and 30 knots which equates with force 6 on the Beaufort Scale. As the wind had only recently switched around to this direction the waves are unlikely to have reached full maturity and from the wind evidence and that seen on the various video evidence of the rescue I would estimate the average wave height in the vicinity of the incident to be 2.5 metres in the open seas. Closer inshore where the waves were impacting the cliffs the videos show a series of reflected waves returning out to seaward from the cliffs. Where these reflected waves interacted with the incoming waves the sea conditions were considerably rougher with wave heights estimated to be in the region of 3 to 4 metres.

The east side of the island where the two ships, Pirie and Triton, were initially located would have been in the lee of the land and the seas here would have been slight with the wave height increasing significantly as the vessels moved north and became exposed to the full force of the wind.

Submissions of the defendant

15. It was submitted on behalf of the defendant that para. 4 purported to summarise the contents of a weather report which has been provided to Mr Pike, and that Mr Pike had proceeded to express opinions regarding the sea conditions on 15 December 2010 based upon the information provided in that report. It was submitted that the nature of the prevailing sea and weather conditions at the material time is a question of fact, and is not a matter in respect of which Mr Pike has any relevant expertise. It was pointed out that Mr Pike is not meteorologist, and has no specialised knowledge based on any training, study or experience which enabled him to express an opinion regarding the weather conditions which prevailed on Christmas Island at the time of the incident.

16. Quite apart from these matters, senior counsel for the defendant submitted that Mr Pike had failed to outline the reasoning process which led him to form the opinion he had expressed.

Submissions of the plaintiffs

17. Counsel for the plaintiffs submitted that the opinions expressed by Mr Pike as to weather and sea conditions were not matters solely within the province of a meteorologist, and were matters about which a person such as Mr Pike, who was clearly experienced in weather and sea conditions, could give evidence. In this regard, counsel pointed to the fact that Mr Pike was the author of books on a variety of subjects including matters pertaining to storms, wild weather, and the ability of power boats in rough seas.

Consideration

18. Documents provided to Mr Pike by the plaintiffs’ solicitors included reports of the Bureau of Meteorology of Western Australia regarding the weather conditions within a 50 nautical mile radius of Christmas Island on the day in question. That material made reference to (inter alia) the expected condition of the sea, the wave height, the level of wind, and the direction of that wind.

19. Paragraph 4 of Mr Pike’s report essentially encompasses opinions as to:

1. wind speed;

2. wave height; and

3. weather conditions on the east side of the island.

20. There are a number of difficulties with the admissibility of those opinions.

21. Firstly, Mr Pike is not a meteorologist. Whilst he may have published a book entitled “Power Boats in Rough Seas”, and whilst he may also have had experience in what he describes as “rough weather evaluation”, he has no relevant training, study and experience which enables him to express opinions as to matters such as wind speed and wave height. In any event, these are questions of fact, not matters of expert opinion.

22. Secondly, what Mr Pike was essentially doing in this part of his report was reproducing (and interpreting) part of the contents of meteorological reports of which he was not the author, and which had been provided to him as part of his instructions. What conclusions are to be drawn from those reports is a question of fact for the court, not a matter for Mr Pike. Moreover, reading a report does not involve the application of any specialised knowledge based upon training, study and experience.

23. Thirdly, and even if he were appropriately qualified, the opinions expressed by Mr Pike do not expose any reasoning process which was adopted in forming such opinions. In particular, he has not explained:

1. why it “appeared” that the wind had been blowing at a particular speed from a particular direction;

2. the basis of his estimate of the wave height; and

3. why the seas on the east side of the island would have been “slight with the wave height increasing significantly as the vessels moved north and became exposed to the full force of the wind”.

Paragraph 6 of the report

24. Paragraph 6 of Mr Pike’s report contains his substantive opinions which have been expressed in answer to a series of specific questions which he was asked to consider by the plaintiffs’ solicitors. In view of the approach taken by counsel in the course of submissions, it is appropriate to consider each these opinions separately.

Question 1

25. Question 1 was in the following terms:

“Do any of the following vessels have the capability to tow a vessel like the “SIEV 221, in the sea conditions experienced on 15 December 2010 (prior to its contact with the shore) at Christmas Island away from the immediate danger? If so, please explain your opinion.”

1 Zodiac 733 Hurricane;

2 Zodiac 733 Hurricane’s (sic);

1 Norsafe 850 RHIB;

2 Norsafe 850 RHIBs;

Wiltrading Pursuit 640 vessel;

LeisureCat vessel ‘Colin Winchester’;

LeisureCat vessel ‘Sea-Eye’.

26. In response to that question, Mr Pike stated the following:

a. QUESTION 1

This question relates to the towing capability of the various RIBs and rescue boats that were potentially available for the rescue work and whether they could have towed SIEV 221 away from the shore or at least to have stopped it going ashore. Bollard pull is a measure of the towing capability of a vessel and relates to the pull that can be generated with the engines operating at full power. There are formulae to calculate bollard pull but these relate primarily to tugs and vessels with displacement hulls rather that than to the small planing boats that are involved in this question. However I believe that the formula will give a guide and for instance using the formula for the Norsafe RIBs it shows that a pull of 5 tonnes could be achieved. In order to translate this into a conservative estimate of the bollard pull available for small craft the calculated figures have been halved.

Bollard Pull Formula used:-

BHP (Engine power in HP x 0.9 x 1.10 ÷ 100 = Bollard Pull in Tonnes

Boats with water jet propulsion would achieve a higher bollard pull than those with propellers. A water jet is effectively a pump and it can develop close to full thrust even at low speeds. This would make water jet propulsion the preferred choice for a boat required to tow and there would also be a much reduced risk of getting the tow rope around the propeller. With propeller propulsion such as in the case of an outboard powered boat the propeller revolves at high speed on full power and the pitch of the propeller is normally selected to generate maximum thrust at close to full speed. At lower speeds the propeller is much less efficient and there is considerable slip when full power is applied at low speeds such as when towing and thus there would be a considerable reduction in the thrust available.

To act as a towing vessel there is a requirement for the boats to be fitted with a suitable attachment point for the tow rope. It has not been possible to determine whether such an attachment point was fitted in any of the boats except for the Zodiacs where what looks like a substantial towing post can be seen attached to the transom in one of the photos attached to the Coroner's report. It is estimated that it would require a bollard pull of 2 tonnes to start making any progress to windward when towing SIEV 221.

a. 1 Zodiac 733 Hurricane

This RIB is quoted as being diesel powered and water jet propelled but the power is not stated. From the Zodiac Hurricane brochure the maximum power that can be installed is 315 hp and it is likely that this would be a single engine installation. Given this power and propulsion I would estimate the bollard pull at around 1 tonne and with this available the boat may have been able to reduce the drift of SIEV 221 but it is doubtful if any forward motion could be generated.

b. 2 Zodiac 733 Hurricanes

With a combined pull of possible 2 tonnes it could have been possible for the two Zodiacs working together to make some progress to windward but it would be very slow.

c. 1 Norsafe 850 RHIB

These Norsafe RIBs are powered by twin 233 hp diesel engines coupled to water jet propulsion. This combination would make them an effective towing vessel and my calculations show that the bollard pull could be around 2 tonnes. This would have been adequate to hold the vessel in position and to stop drift in the prevailing conditions and to possibly make progress to windward.

d. 2 Norsafe 850 RHIBs

With a combined bollard pull estimated at 4 tonnes two of the Norsafe RIBs working together should have been able to tow SIEV 221 to windward at slow speed in the prevailing conditions.

e. Wiltrading Pursuit 640 vessel

I am unable to determine the engine type, power and the propulsion system of this RIB but from the photo is does appear to be powered by an inboard engine with the propulsion system not determined. From its size of 6.4 metres in length I would doubt whether this RIB would generate adequate thrust to be able to either tow or to hold SIEV 221 but it could possibly reduce the rate of drift.

f. LeisureCat vessel Colin Winchester

This is an outboard powered catamaran powered by a pair of 175 hp engines. Although powerful, with this type of engines the bollard pull generated is likely to be quite low so I would doubt whether there would be sufficient 'pull' available to have a major impact on the movement of the SIEV 221.

g. LeisureCat vessel Sea Eye

This is a similar vessel to the Colin Winchester and so the same comments apply.

Submissions of the defendant

27. Senior counsel for the defendant submitted that this part of Mr Pike’s report suffered from a series of shortcomings, including a failure to:

1. identify any source for the “Bollard Pull Formula”;

2. identify who was responsible for developing the formula;

3. explain the nature of the formula;

4. explain how the formula was used for the purposes of any relevant calculations that were performed;

5. disclose such calculations;

6. explain the basis for the stated belief that the formula would “give a guide” to the towing capabilities of the vessels which were the subject of question 1; and

7. set out the bases for the calculations which were expressed.

28. In the alternative, senior counsel for the defendant submitted that if a conclusion were reached that the evidence was admissible under s. 79, it should nevertheless be excluded under s. 135 of the Act on the basis that its probative value was substantially outweighed by the danger of it being misleading or confusing.

Submissions of the plaintiffs

29. Counsel for the plaintiffs submitted that the content of this part of Mr Pike’s report was simply a matter of mathematical calculations based upon a stated formula. Whilst counsel accepted that it “would have been better certainly” if Mr Pike had “gone into a lot more detail and been more fulsome”, he pointed out that Mr Pike was a marine surveyor who had been involved in the design and development of boats, and was thus appropriately qualified to express these opinions.

Consideration

30. As I have previously set out, one of the fundamental requirements for the admissibility of evidence of expert opinion is that the reasoning process adopted in order to form the opinion be exposed. In my view, for a number of reasons, there is no such exposition in respect of the opinions expressed by Mr Pike in this part of his report.

31. Firstly, in circumstances where the opinion is based to a large extent upon the application of a stated formula, there is no explanation of that formula’s origin or source.

32. Secondly, Mr Pike appeared to acknowledge that such formula related “primarily to tugs and vessels with displacement hulls rather than to the small planing boats that are involved in this question”. That acknowledgement obviously raises an immediate question as to the applicability of the formula in the circumstances of the present case. Mr Pike sought to overcome that issue by expressing a belief that the formula would “give a guide”. However, the basis for that belief was not expressed.

33. Thirdly, Mr Pike stated that it was “estimated that it would require a bollard pull of 2 tonnes to start making any progress to windward when towing SIEV 221”. The reasoning process which led Mr Pike to express that opinion is not exposed. Similarly, the bases of the estimate(s) that he apparently made are not exposed, nor are the estimates themselves.

34. Fourthly, there is no indication of what assumption(s) Mr Pike made about other relevant matters such as the power of the vessel undertaking the towing, or the sea conditions, in arriving at his estimate.

35. Fifthly, and bearing in mind his acknowledgement that the Bollard Pull Formula related to vessels of a different kind to those relevant to the present case, Mr Pike proceeded to express his opinions as to the towing capacity of individual types of vessels. The shortcomings of that part of his report include the following:

1. in terms of his opinion as to the towing capability of a single Zodiac 733 Hurricane vessel, Mr Pike estimated the bollard pull to be “at around 1 tonne”, which led him to form the view that such a vessel “may have been capable to reduce the drift of SIEV 221”. The basis of Mr Pike’s estimate, and any assumption(s) he may have adopted to reach it, are not stated, nor is there any explanation of why the drift of SIEV 221 could have been reduced;

2. Mr Pike’s opinion as to the towing capacity of two Zodiac 733 Hurricanes is based upon a “combined pull” of possibly 2 tonnes. The basis of the conclusion that there is such a combined pull available is not stated. Why it “could” have been possible for two such vessels “to make some progress windward” is also not stated;

3. Mr Pike’s opinion as to the capability of 1 Norsafe 850 RHIB is based upon calculations of the bollard pull which, according to him, would have been adequate to hold SIEV 221 in position and stop drift. The calculations are not set out. The basis of the opinion that a Norsafe 850 RHIB could have held SIEV 221 in position is not stated;

4. Mr Pike’s opinion as to the capability of 2 Norsafe 850 RHIBs is based upon a combined bollard pull of 4 tonnes. Again, the basis of that estimate, and the calculations adopted in order to arrive at it, are not stated, nor is the basis for the opinion that such vessels should have been able to tow SIEV 221;

5. in respect of his opinion as to the capability of a Wiltrading Pursuit 640 vessel, Mr Pike expressly acknowledged that he was not in a position to determine the engine type, power and propulsion system of this type of vessel; and

6. in respect of his opinions as to the respective capabilities of the Colin Winchester and the Sea Eye, Mr Pike failed to provide any basis for his opinion that the bollard pull generated was likely to be quite low.

Question 3

36. Question 3 was in the following terms:

“Assume that instead of vessels ‘Sea-Eye’ and ‘Colin Winchester’, the Volunteer Service on the Island had alternatively been trained and provided with 1 or more fully functional NAIAD vessels. Could these types of vessels have assisted in the towing operation in such sea conditions as they were on 15 December 2010?

37. In answer to that question Mr Pike stated the following:

QUESTION 3

The brochure giving the specification for the Naiad RIBs shows them to be powered by outboard motors. These could have helped with the towing operation but the fact that they have fast turning propellers would have reduced their capability for towing. This towing capability is likely to be much improved if water jet propelled versions of these RIBs were specified.

Submissions of the defendant

38. The primary objection taken to this part of Mr Pike’s report was that it had no relevance to any fact in issue in the proceedings. Senior counsel for the defendant submitted that it was not in dispute that there were no NAIAD vessels available for use in the relevant area at any time during 15 December 2010.

39. Senior counsel further submitted that even if Mr Pike’s opinion in response to question 3 satisfied the test of relevance, it did not satisfy the requirements of admissibility under s. 79 of the Act. It was submitted, in particular, that Mr Pike had failed to:

1. set out the factual basis which informed his opinions, and

2. explain how he had applied any specialised knowledge, based on his training study and experience, to form his opinions.

Submissions of the plaintiffs

40. In terms of the objection as to relevance, counsel for the plaintiffs took me to paragraph 39b of the further amended statement of claim. He submitted that there was clearly an issue in the proceedings that a NAIAD vessel, acting as a replacement for the Colin Winchester, could have satisfied the “readiness precaution” which had been pleaded.

41. As to the remaining objections, counsel submitted that Mr Pike was appropriately qualified, and that his reasoning was adequately exposed.

Consideration

42. Paragraph 39b of the further amended statement of claim pleads that a reasonable public authority in the position of the defendant, owing a duty of care to the plaintiffs, would have (inter alia) replaced the Colin Winchester and the Sea Eye with vessels capable of use as search and rescue vessels. However, the pleadings do not allege that any failure to do so was causative of the damage said to have been suffered by the plaintiffs. In these circumstances, Mr Pike’s opinions are not relevant to any pleaded issue in the proceedings.

43. Even if they were relevant, they are in my view not admissible. Given the form in which they have been expressed, Mr Pike’s opinions appear to be based upon his having read a brochure to which he had been referred. That does not involve the application of any expertise. Moreover, his report completely fails to explain why:

1. the outboard motors could have helped with the “towing operation”;

2. fast turning propellers would have reduced the towing capability of a NAIAD vessel; and

3. why such towing capability could be improved in the postulated circumstances.

Question 4

44. Question 4 was in the following terms:

“If your answer to question 3 is ‘yes’ please identify the last point in time at which the vessel(s) would need to be in the vicinity of SIEV 221 to tow it away from immediate danger of the shore and your opinion of when the vessels would need to have been launched from the Ethel Beach boat ramp in order to arrive by that time.”

45. In answer to that question, Mr Pike stated the following:

QUESTION 4

If the Naiad RIBs were propelled by water jets then the last time they would have had to have been in the vicinity of SIEV 221 in order to connect a tow rope and tow it away would have been 0640. With outboard powered versions of the Naiad then I estimate that it would have been preferable to have been in position at least 10 minutes earlier to avoid having to tow the vessel out from the challenging conditions close inshore.

The distance from the Ethel Beach launching ramp to the site of the casualty is 5 nautical miles. From the launching point to North East Point is 3 miles and here the sea conditions would have allowed full speed to be used so this section could have been covered in 6 minutes. Then would follow 2 miles in adverse head seas where speed would drop to around 20 knots or less so add another 6 minutes, making a total of 12 minutes. This means that the vessels would have needed to be launched and moving at 0628 at the latest but preferably at 0620 or earlier.

Submissions of the defendant

46. Senior counsel for the defendant submitted that Mr Pike’s opinions expressed in answer to question 4 had no relevance to any fact in issue. It was pointed out that it was not in issue that there were no NAIAD vessels available for use as towing or rescue vessels at the relevant time.

47. Further, it was submitted that whatever Mr Pike’s training study and experience might have been, it did not qualify him to express opinions regarding:

1. the time at which any NAIAD vessel(s) should have been launched; and

2. when they would have reached SIEV 221.

48. It was submitted that such matters fell squarely outside the bounds of Mr Pike’s expertise, such that his stated opinions on those subjects amounted to nothing more than pure speculation.

Submissions of the plaintiffs

49. Counsel for the plaintiffs relied upon his submissions in respect of question 3.

Consideration

50. Mr Pike’s expertise lies primarily in the construction and capabilities of certain types of RHIBs. In answering question 4, Mr Pike purported to express an opinion about when it would have been “preferable” to have certain vessels in position, and when such vessels would have needed to be launched. In my view, those opinions go substantially beyond any expertise which Mr Pike might have.

Question 5

51. Question 5 was in the following terms:

“In your opinion what would have been the minimum necessary search and rescue capability on the Island, to have prevented the SIEV 221 foundering on the rocks and/or to have mounted an effective search and rescue response that would have minimised the loss of life to the maximum extent reasonable possible?”

52. In answer to this question, Mr Pike said the following:

QUESTION 5

There are several solutions to this. Assuming that a boat or boats would be stationed at Flying Fish Cove then to allow for the option of launching at Ethel Point ramp it would need to be road transportable which would restrict its size to a maximum of around 10 metres. Then in the situation of the SIEV 221 where considerable numbers of casualties are involved two boats would be more effective than one as one boat can only recover a certain number of casualties at any one time. So probably the optimum solution would be two monohull RIBs of 8 to 9 metres in length with diesel power coupled to water jet propulsion. An option could be one larger RIB that can carry a jet ski or similar mobile rescue vehicle for launching over its stern. This would give a better towing capability but with two boats there are better options of maintaining some SAR capability if one boat is out of action for maintenance or repair. To facilitate the launch and recovery of the boats a more specialised

trailer design would extend the weather conditions in which these boats could be used.

In addition to capable search and rescue craft, early detection of a possible casualty is vital in preventing casualties rather than coping with the casualty after it has got into trouble so some system of detection either visual of electronic would help. In the circumstances of Christmas Island this would best be located on the north of the island where the potential casualties tend to occur. Such a facility could also act as the control centre for SAR activities and it is likely that SIEV 221 could have been detected and diverted to the sheltered east side of the island before it got into trouble.

Submissions of the defendant

53. Senior counsel for the defendant submitted that Mr Pike’s opinion expressed in answer to question 5 had no relevance to any fact in issue in the proceedings. It was pointed out, in particular, that there was no pleading that the defendant owed a duty to maintain some form of search and rescue capability on Christmas Island that would have prevented SIEV 221 being shipwrecked.

54. It was further submitted that the opinions Mr Pike had expressed went to matters that were clearly beyond his field of expertise and that whatever qualifications Mr Pike may have, they did not enable him to express an opinion regarding what search and rescue facilities would have been necessary to prevent the wreckage of SIEV 221, or minimise the resulting loss of life.

55. Finally, senior counsel for the defendant submitted that Mr Pike’s opinions in this respect were so vague, and were expressed in such a high level of generality, that it was not possible to identify, much less test, his underlying assumptions of reasoning.

Submissions of the plaintiffs   

56. Counsel for the plaintiffs again relied on his submissions in respect of questions 3 and 4.

Consideration

57. Based on the pleadings in the further amended statement of claim, it is no part of the plaintiffs’ case that the defendant owed a duty to have particular search and rescue facilities in place on Christmas Island at the relevant time. That is the subject matter to which this part of Mr Pike’s opinion goes. In those circumstances his opinion is irrelevant.

58. Even if that opinion were relevant, it is beyond any expertise Mr Pike might have. Even allowing for his experience in rescue operations (which, it should be said, is expressed in somewhat vague terms), such experience does not enable Mr Pike to express opinions as to (for example) the proper location of a control centre.

59. Further, and quite apart from any other consideration, there is no evidence that Mr Pike has ever visited Christmas Island. In these circumstances, and bearing in mind his areas of expertise, he is in no position to express the optimum location on Christmas Island of a system of detecting of SIEVs.

Question 6

60. Question 6 was in the following terms:

“In your opinion, based on the material provided, what is the latest point in time at which the Commonwealth authorities should have initiated a rescue response to the SIEV 221? Please explain your answer?

61. In response to that question, Mr Pike stated the following:

QUESTION 6

Time is often critical in any rescue response and when the call to the on-call officer was made at 0545 this should have been the time for a rescue response to be initiated. The SIEV was off Rocky Point and heading towards Flying Fish Cove when first sighted and was close inshore. It should have been appreciated that no landing or safe haven would be found in Flying Fish Cove in the prevailing conditions and even with the engine operational the SIEV might have found it challenging to motor out of the cove so a rescue operation should have been initiated either to guide the SIEV to safer waters or to be prepared to take the passengers and crew ashore if the vessel itself could not make it to a safe haven.

Submissions of the defendant

62. Senior counsel for the defendant submitted that question 6, and the opinion expressed by Mr Pike in response to it, had no relevance to any pleaded issue. It was further submitted that even if it did, the matters about which Mr Pike had expressed his opinions fell outside his field of expertise, and did not demonstrate the application of any specialised knowledge based on training, study or experience.

63. It was further submitted that even if Mr Pike was appropriately qualified to express such opinions, he had failed to articulate any process of reasoning to support them, such that they were inherently vague, lacking in any meaningful detail, and effectively amounted to nothing more than a bare conclusion.

Submissions of the plaintiffs

64. Counsel for the plaintiffs’ submitted that the opinion expressed by Mr Pike in answer to question 6 was not a bare conclusion, but rather a “targeted piece of considered opinion”.

Consideration

65. As I have already pointed out, Mr Pike has some experience (stated in imprecise terms) in matters of rescue. However that does not qualify him to express opinions regarding the appropriate time for the initiation of a rescue response.

66. Further, I accept the submission advanced by senior counsel for the defendant that Mr Pike’s assertion that certain things should have been “appreciated” amounts to a bare conclusion, and is unsupported by any analysis or reasoning.

Question 7

67. Question 7 was in the following terms:

“At what point in time should the Commonwealth authorities have declared a “SOLAS” situation? If the point in time is different to your answer to question 6, please explain why that is so and the difference, if any, in the appropriate response at each point in time.”

68. Mr Pike’s response was as follows:

QUESTION 7

A SOLAS situation should have been declared at 0545 at the same time as the confirmed sighting of the SIEV was made, considering the prevailing weather conditions. It is difficult to understand why this decision was delayed until 0639, nearly one hour later although by that time all of the available assets were nearly involved.

Submissions of the defendant

69. Senior counsel for the defendant submitted that the question of when the Commonwealth should have declared a SOLAS situation on 15 December 2010 was a matter that fell squarely outside Mr Pike’s recognised area of expertise.

Submissions of the plaintiffs

70. Counsel for the plaintiffs relied upon his submissions in respect of question 6.

Consideration

71. Once again, Mr Pike’s assertion amounts to a bare conclusion, unsupported by any analysis or reasoning.

72. Moreover, and for the reasons I have already expressed, Mr Pike’s experience in rescue (such as it is) does not qualify him to express an opinion in these terms.

CONCLUSION

73. For the foregoing reasons I exclude those paragraphs of Mr Pike’s report as outlined above.

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Decision last updated: 10 October 2016