Kurray; Higgins & Ors; Justin & Ors; Trimboli & Ors v Brinkworth & Ors

[2022] SASC 97

Supreme Court of South Australia

(Civil)

KURRAY; HIGGINS & ORS; JUSTIN & ORS; TRIMBOLI & ORS v BRINKWORTH & ORS

[2022] SASC 97

Judgment of the Honourable Chief Justice Kourakis  

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PROPERTY LOSS - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CLASS ACTIONS OR GROUP PROCEEDINGS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - EXPERT REPORTS AND EXPERT EVIDENCE - DISCLOSURE OF REPORTS

On 11 January 2021, a fire ignited on a private property located at Blackford, South Australia. The Applicants in four separate actions have commenced a class action, claiming property loss and damage and consequential economic loss in negligence and private nuisance. The Applicant's claim is that the fire was the result of certain negligent acts and omissions by the then owners of the property (collectively referred to as the Brinkworths) which caused an unreasonable interference with their enjoyment of the rights associated with their land.

This is an interlocutory application brought by the Brinkworths in three of the four actions pursuant to rule 74.4 of the Uniform Civil Rules for the provision of information laying behind what they contend is an expert report discovered by the Applicants in one of the actions.

Held, per Kourakis CJ:

The letters submitted by the Brinkworths as being an 'expert report' are not an expert report or reports for the purposes of rule 74 of the Uniform Civil Rules. The application is dismissed.

Uniform Civil Rules 2020 (SA) rr 74, 74.2, 74.3, 74.3(1), 74.3(2), 74.4, 74.10, 74.12, referred to.

KURRAY; HIGGINS & ORS; JUSTIN & ORS; TRIMBOLI & ORS v BRINKWORTH & ORS
[2022] SASC 97

1. HIS HONOUR: This is an interlocutory application in an action brought by Ms Trimboli and others against Benjamin Brinkworth and others in action CIV‑21‑012765.  That action has been consolidated with a number of other actions to which I will refer generally as the Lucindale bushfire class action.  The interlocutory application is brought by the Brinkworth parties pursuant to rule 74.4 for the provision of information laying behind what they contend are two expert reports discovered by the Trimbolis.

2. Before going to these reports, I make these observations about the rules.  First, the definition of an expert report is a written report by an expert relevant to the issues in the proceeding in question and includes a summary expert report.  By necessary implication, the definition means a report which contains an expert opinion.  An expert who reports on matters of empirical fact of which a lay person may testify does not provide a report within the meaning of the definition.  That construction is supported by the reference in the definition of an expert report to a summary expert report with a summary report.  The expression ‘summary report’ does not seem to have an existence independently of its reference in the definition of ‘expert report’ and in Rule 74.12.  Rule 74.12 commences: ‘A party may seek and an expert may provide a written report that sets out in summary form assumptions made and opinions held by an expert.’  A party may choose to seek a report from an expert setting out his or her opinion summarily or at great length.  The only matter of significance for the purpose of conducting litigation in accordance with the rules, is whether the report, which would otherwise be privileged, must be served on the other parties, and whether the report is in a form which will allow the expert opinion evidence to be adduced at trial.  The effect therefore of Rule 74.12 is to make it clear that a summary report need not address all of the matters specified in Rule 74.10 but must address paragraphs (a), (b), (o) and (p) of that rule.  A summary report need only: state the name and address and opinions of the expert, attach copies of documents that record instructions given to him or her and be signed.  Leaving aside the attachment of documents and the record of instructions, the main purpose of Rule 74.12, in the context of the definition of ‘expert report’, is to confirm what I would in any event have implied, which is that an expert report is a written report which contains the opinion to which an expert is prepared to put his or her name.

3. Turning to Rule 74.3, sub-rule (1) provides: ‘A party must, within seven days of the close of pleadings, serve on the other parties a copy of each expert report in the party’s possession.’  Importantly, the sub-rule concludes with the words in parenthesis: whether or not the party intends to rely on the report at the trial.  Rule 74.2 requires that early notice to be given by a party who seeks a report, after the commencement of proceedings, by the provision of the other parties of the letter seeking that report.  However, it is accepted by both parties before me, and with respect I think it is the sensible meaning of the rule, that sub-rule (1) of 74.3 applies to reports whether obtained before proceedings were commenced or during the course of proceedings.  Rule 74.3(2) prescribes the form a report must take if a party intends to adduce at trial evidence of the opinion expressed in an expert report.

4. We are not concerned here with the form a report must take for the opinion to be adduced at trial because the obligation to serve reports on other parties, imposed by sub-rule (1) of 74.3, applies whether or not the party intends to rely on the report at trial.  The purpose of sub-rule (1) extends beyond preventing an ambush of one party by another who has not provided a copy of the relevant report in advance, because sub-rule (1) applies whether or not the party intends to rely on the report which must be served.  The purpose of sub-rule (1) is to advance the fair and just resolution of differences in expert opinions by ensuring that all parties are informed of those opinions early in the proceedings.

5. The applicants have emphasised, and I accept, that the consequence of the provision of an expert report under Rule 74.3 is to waive privilege in the communications which would otherwise be privileged, which lie behind that report.  A construction which abrogates that important privilege will not be given to a Rule unless the text clearly manifests an intention to do so.

6. The documents which the Brinkworth parties say are expert reports for the purpose of Rule 74, are two letters of a forensic bushfire consultant, Mr Simon Cox, dated 18 May and 28 July 2021.  The letters were prepared and provided to the Trimbolis’ solicitors, Moray & Agnew, in support of a pre-action application to gain access to the Brinkworth’s property which was suspected to be the source of the Lucindale bushfires.  That application was brought because the Brinkworths had initially denied access but they relented after the pre-action proceedings were brought.  It was therefore not necessary to make any orders in that pre-action proceeding.  The proceedings are still extant but only because the question as to who should bear the costs of the application is yet to be resolved.

7. After taking that access, the plaintiffs engaged a Mr Richard Wood and Mr Marsden-Smedley as their forensic bushfire experts.  They have informed the Brinkworth parties that they will not call and do not intend to rely on any evidence from Mr Cox.

8. The letters of Mr Cox, on their terms, state that Mr Cox had formulated two hypotheses about the bushfires.  The first was as to the course of the Lucindale bushfires.  The second, which is necessarily dependent on the first, is a hypothesis on why or how the Lucindale bushfires spread from that source.

9. As to the first hypothesis, in his letter of 18 May 2021, Mr Cox explained that he had obtained a Situation Map from the South Australian Country Fire Service on which was superimposed the shape of the heel of the fire.  He then estimated the rates of spread relying on the weather conditions recorded by the Bureau of Meteorology for Cape Jaffa at the time of the fire.  Mr Cox superimposed his postulated spread from the source onto the Situation Map of the actual fire.  From that comparison he formulated the hypothesis that the fire commenced at or about the location described by the coordinates [which he sets out] on the property known as ‘Westlands’.

10. Mr Cox went on to say that notwithstanding the formulation of that hypothesis it was necessary for him to examine any remaining indicators of the fire spread on the property in order ‘to confirm (or otherwise) that this was the case’.

11. In his letter of 28 July 2021, Mr Cox referred to that hypothesis as to the source as ‘My estimate’.  His second letter explains that it is an estimate based on assumptions that the fires spread unimpeded.  He then continued ‘I therefore reiterate the importance of attending onsite to make a more accurate assessment of the vegetation and terrain with respect the initial behaviour of the fire and to examining any remaining indicators of fire spread direction in conjunction with those recorded by the notes and photographs [of the fire service and the police], for the purpose of refining my estimate of the fire origin’.

12. I read Mr Cox’s use of the word ‘estimate’ in the context of his reference to a hypothesis in his first letter.  I accept and acknowledge that an estimate may be the subject of an expert opinion, and be admissible as such.  However, on reading the letters together, that is not how Mr Cox has used the word ‘estimate’.  I read the word ‘estimate’ in his second letter to be a reference to the hypothesis stated in his earlier letter.

13. So much is clear because Mr Cox then continued by explaining that only after having an opportunity to refine or confirm his estimate/hypothesis would he be in a position to consider the fire cause.  It follows that Mr Cox did not see himself as being in a position to give a considered opinion on the cause of the fire before taking access to the property in order to confirm, or prove false, his hypothesis.

14. I accept that the hypothesis with respect to the fire source was not based entirely on the material found in the Situation Map of the South Australia Country Fire Service.  It was a hypothesis formed after Mr Cox modelled fire spread from the Bureau of Meteorology data.  For that reason, if contrary to what I have just found, Mr Cox was expressing an opinion, I would find that Mr Cox was not merely relaying someone else’s opinion.

15. The second hypothesis mentioned in Mr Cox’s letter of 18 May 2021 was a hypothesis that the fire was caused by the rekindling of a burn off on the Brinkworth’s property.  However, Mr Cox explicitly said that that was a hypothesis which he formulated after viewing a SACFS fire investigator’s report in which that investigator’s opinion that the probable cause was a rekindling of the burn off  was recorded.  However, again, Mr Cox made it clear that it was no more than a hypothesis: ‘However in order to test this hypothesis it would be necessary to determine the propensity of the materials within and/or beneath the heat to support smouldering combustion from when it was last burnt until the date of the subject fire.  In order to do so it would be necessary for me to examine the remains of the heap in situ’.

16. Even if that paragraph expresses an opinion, as Mr Floreani has contended, it is plainly no more than the adoption, without any further work by Mr Cox, of the hearsay opinion of another fire source investigator.  I should elaborate on the distinction I have drawn between a hypothesis and an opinion in the context of the rules on expert reports.

17. An opinion is a scientific conclusion actually reached by an expert following the application of his/her expertise to assumptions, or proven or known facts.  A hypothesis is not an opinion, it is a step in an investigation, the purpose of which is to reach an opinion if that is possible and supported by the results of the investigation.  It is wrong and unscientific to embark on an investigation holding the view that the investigation is likely to confirm the hypothesis.

18. For that reason I reject the submission that the hypothesis spoken of by Mr Cox was a preliminary opinion to the same effect.  Mr Cox made it clear that he would not be able to form an opinion until he had completed his investigations.

19. Accordingly, the letters of Mr Cox are not an expert report or reports for the purposes of Rule 74.

20. Mr Besanko made certain alternative submissions, should I have ruled against him on his primary contention, that the letters of Mr Cox were not an expert report because they did not contain an opinion.

21. The first of those was that even if Mr Cox’s hypotheses were opinions, they were not relevant to an issue because they were simply a comment on an opinion of others and did no more than set out the opinions of others.  I have dealt with that contention in the course of the reasons I have already given.  I would have accepted that submission with respect to the cause of the fire, but not with respect to its source.

22. Next, Mr Besanko submitted that even if the letters of Mr Cox contained relevant opinions, rule 74.4 did not apply to them because that rule was limited to obtaining the information behind the reports on which a party intends to rely.  I do not accept that submission.  Rule 74.4 applies to any report which has been discovered by one party to another, allowing the party to whom it was discovered to request the background information.  A discovered expert report, in context, means an expert report which has been served pursuant to 74.3(1) or (2).

23. Rule 74.3(1) expressly includes reports which a party may not intend to rely on.  Textually therefore it is difficult to limit rule 74.4 by reading words in limiting it to only a subset of the reports which may be served pursuant to 74.3(1), namely the reports on which a party intends to rely.

24. In any event that would be contrary to what I discern of the broader purpose of subrule (1) which extends beyond safeguarding against an ambush. If the provision of a report is to serve that purpose then, as a general rule, the background information, which is the subject of 74.4 must also be provided.

25. Finally, Mr Besanko advanced the submission that some of the requested information went beyond what was allowed by Rule 74.4.  In particular he referred to the request to provide all photographs taken by Mr Cox at his site visits after the date of the letters, and any correspondence post dating the letters.

26. I accept that submission.  Insofar as the photographs postdate the letters of Mr Cox, they could not be material on which he relied.

27. The same is the case with respect to the correspondence.  If the correspondence revised an opinion expressed in the earlier letters, noting that I have found that no opinion was expressed, then that subsequent correspondence in itself would be a report, and the parties would be bound to serve it.

28. For those reasons I dismiss the application which has been made by way of paragraph 1 of the written submissions filed in advance of this hearing.

29. RULING COMPLETED 11.51 A.M.