Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling)

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FEDERAL COURT OF AUSTRALIA

Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling) [2022] FCA 1318

File number: NSD 806 of 2020
Ruling of: STEWART J
Date of ruling: 3 November 2022
Catchwords: EVIDENCE – objection to tender of scientific journal articles – where category one articles were put to an expert witness in cross-examination – where category two articles not the subject of any expert evidence – whether articles admissible and, if so, whether subject to limitation
Legislation:

Evidence Act 1995 (Cth) ss 59, 60, 69, 76, 77, 79, 135, 136, 174

Federal Court Rules 2011 (Cth) Div 23.2

Expert Evidence Practice Note (GPN-EXPT)

Cases cited:

ACCC v Air New Zealand Limited (No 5) [2012] FCA 1479; 301 ALR 352

Bodney v Bennell [2008] FCAFC 63; 167 FCR 84

Borowski v Quayle [1966] VR 382

Commissioner for Government Transport v Adamcik [1961] HCA 43; 106 CLR 292

Concha v Murrieta (1889) 40 Ch D 543

Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588

PQ v Australian Red Cross Society [1992] 1 VR 19

QIW Retailers Ltd & Attorney-General (Cth) v Davids Holdings Pty Ltd (No 3) [1993] FCA 288; 42 FCR 255

R v Karger [2001] SASC 64; 83 SASR 1

R v Patel (No 6) [2013] QSC 64

Roach v Page (No 15) [2003] NSWSC 939

Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; 224 ALR 317

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 25
Date of hearing: 1 November 2022
Counsel for the Applicant: I R Pike SC, A Naylor, R J May and W Lu
Solicitor for the Applicant: Shine Lawyers
Counsel for the Respondents: D McLure SC, G O’Mahoney, H Pintos-Lopez, T March and A Reid
Solicitor for the Respondents: Clyde & Co

REASONS FOR RULING

NSD 806 of 2020
BETWEEN:

SUSAN KARPIK

Applicant
AND:

CARNIVAL PLC (ARBN 107 998 443 / ABN 23107998443)

First Respondent

PRINCESS CRUISE LINES LTD (A COMPANY REGISTERED IN BERMUDA)

Second Respondent

STEWART J:

Introduction

  1. An issue has arisen with regard to the admissibility of certain learned articles published in scientific journals during the course of the trial of this class action. The issue has arisen after all witnesses have completed their evidence and been excused, and there is no intention to apply to recall any witness.

  2. There is a substantial volume of medical-related expert evidence in the trial. Amongst other issues, the evidence is directed at questions such as the incubation period of the SARS-CoV-2 virus, the prevalence of asymptomatic infections of the virus, the modes of transmission of the virus including what the state of scientific knowledge was in that regard in early March 2020, the extent of asymptomatic and pre-symptomatic transmission of the virus, the contagiousness of the virus including with reference to the basic reproductive number (R0) and the secondary attack rate (SAR), and the significance of a negative SARS-CoV-2 PCR test…

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Details
Case
[2022] FCA 1318
Decision Date

CaseChat Overview and Summary

The case before the Federal Court of Australia involved a dispute between the applicant, Karpik, and the respondent, Carnival plc, in relation to the Ruby Princess cruise ship incident. The court was tasked with determining the admissibility of scientific journal articles as evidence, specifically whether these articles could be relied upon by expert witnesses and whether there were any limitations on their use. The articles were divided into two categories: those that were put to an expert witness in cross-examination and those that were not referred to in any expert evidence. The court had to decide whether these articles were admissible and, if so, whether they were subject to any limitations.

The legal issues before the court revolved around the admissibility of the scientific journal articles as evidence. The applicant sought to tender two categories of articles. The first category consisted of articles that had been put to an expert witness, Professor Catherine Bennett, in cross-examination. The second category comprised articles that had not been referred to in any of the expert evidence. The court needed to determine whether these articles could be admitted into evidence and, if they were, whether there were any restrictions on their use.

The court concluded that the articles were admissible in evidence, as experts are entitled to rely on reputable articles and publications within their area of expertise as a basis for their opinions. This principle was affirmed in previous cases, such as Bodney v Bennell and Dasreef Pty Ltd v Hawchar, and was rooted in the common law's acceptance of the reliance of professionals on reported data from fellow experts. The court noted that the articles' admissibility was not precluded by the hearsay rule or the opinion rule. While the articles in the first category had been put to an expert in cross-examination, the articles in the second category had not been referenced in any expert evidence. The court found that there was no reason to impose any limitations on the use of these articles as evidence.

The court ruled that the scientific journal articles were admissible as evidence and that there were no limitations on their use. This decision allowed the applicant to rely on these articles in support of their case, provided that they were relevant and properly authenticated. The court's ruling reinforced the principle that experts can base their opinions on reputable sources within their field of expertise, even if the underlying data is hearsay. The admissibility of the articles was thus upheld, facilitating the presentation of expert evidence in the ongoing litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is uncontroversial that those articles are admissible in evidence. As it was explained in Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [93] by Finn, Sundberg and Mansfield JJ, there is nothing in the Evidence Act 1995 (Cth) that displaces the body of common law that provides that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise as a basis for their opinions. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense that they rely for such data not on their own knowledge but on the knowledge of someone else. That statement was approved in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [110] by Heydon J. Significant in the body of law referred to is Borowski v Quayle [1966] VR 382 at 386-387 where Gowans J quoted the following passage from Wigmore on Evidence (3rd ed) Vol 2, pp 784-785 para 665(b):The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards. Yet it is not easy to express in usable form that element of professional competency which distinguishes the latter case from the former. In general, the considerations which define the latter are (a) a professional experience, giving the witness a knowledge of the trustworthy authorities and the proper source of information, (b) an extent of personal observation on the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely. It can thus be seen that expert reliance on such learned publications is not excluded by the rule against hearsay (s 59) or the opinion rule (s 76). There are two categories of learned publications the admissibility of which the parties dispute. Common to both categories is that the articles are not referred to in any of the expert reports that have been tendered, confirmed on oath or affirmation and that have been the subject of cross-examination. In the first category are two articles sought to be tendered by the applicant which were put to one of the respondents’ expert witnesses, Professor Catherine Bennett, in cross-examination. The four articles in the second category, which are also sought to be tendered by the applicant, were not referred to in the evidence of any of the experts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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