Laoulach v El Khoury

[2010] NSWSC 595

CITATION:	Laoulach v El Khoury [2010] NSWSC 595
JUDGMENT DATE :	3 June 2010
JUDGMENT OF:	Price J at 1
DECISION:	Evidence admitted.
CATCHWORDS:	PRACTICE and PROCEDURE - evidence - expert's report - whether opinions supported by evidence - whether report admissable
LEGISLATION CITED:	Evidence Act 1995 s 79, s 136
CATEGORY:	Procedural and other rulings
CASES CITED:	ASIC v Rich [2005] NSWCA 152
PARTIES:	Robert Laoulach Plaintiff Robert ElKhoury First Defendant Danny Ibrahim Second Defendant Charbel Ibrahim Third Defendant Mickey Beaini Fourth Defendant
FILE NUMBER(S):	SC 2007/265236
COUNSEL:	Mr B Dooley SC & Mr G Hickey (Plaintiff) Mr R Cavanagh & Mr C Purdy (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

2007/ 265236 Laoulach v El Khoury

JUDGMENT

1 HIS HONOUR: The defendants object to the admission into evidence pursuant to s 79 Evidence Act 1995 of the report of Peter Burge dated 22 April 2009. Mr Burge is a consulting marine engineer and marine surveyor. The principal objection is that Mr Burge has made assumptions in reaching his conclusions which the evidence in the plaintiff's case does not support. Mr Cavanagh for the defendants first identified the assumed facts in par 13(l) as being unsupported by the testimony of the plaintiff and his brothers Sam and Badui Laoulach.

2 The assumed facts in par 13(l) are as follows:

“Mr Laoulach recalls that at various times whilst the vessel was anchored it was swinging around, at times pointing parallel with the beach and at other times the bow was pointed in an easterly direction, away from the beach towards the heads of Botany Bay."

3 Neither the plaintiff nor his brothers gave evidence of the vessel swinging around whilst anchored with its bow at various times pointing in different directions. It follows that the assumed facts in paragraph 13(l) are not supported by the testimony of the plaintiff and his brothers.

4 The next complaint concerns the content of par 20. Although Mr Burge makes reference in the paragraph to the plaintiff's recollection, it is evident that his opinion as to the cause of a boat at anchor to swing around with a changing wind direction and to rise and fall is founded on the Bureau of Meteorology observations and the Beaufort Wind Scale. This material is in evidence and is exhibit K.2.

5 There was further criticism by Mr Cavanagh of the opinions expressed by Mr Burge which were based on the assumption that the boat was swinging on its anchor. Included in the defendants' complaint was par 37 in which Mr Burge makes reference to the boat dragging its anchor. These opinions are clearly based on the Bureau of Meteorology material.

6 Although the facts assumed by Mr Burge include the recollection of the plaintiff, which the plaintiff did not repeat in his testimony, the opinions which Mr Burge expresses as to the movement of the boat and the dragging of the anchor are admissible. The underlying facts include the material from the Bureau of Meteorology and the process of reasoning by which Mr Burge forms his opinions is readily apparent. The absence of evidentiary support for the assumed facts in par 13(l) goes to the weight to be given to the opinions, not to their admissibility: see ASIC v Rich [2005] NSWCA 152 per Spigelman CJ at 94. I propose, however, to limit the use that is to be made of what is stated to be the plaintiff's recollection in par 13(l) pursuant to s 136 Evidence Act to avoid the danger of unfair prejudice to the defendants. The contents of paragraph 13(l) are admitted only as going to the facts assumed by Mr Burge and not as to the truth of what is said to be the plaintiff's recollection.

7 There is no merit in the defendants' criticism of the opinions expressed in pars 36, 39, 40 and 41. All of these opinions fall within Mr Burge's expertise and are admissible.

8 The plaintiff did not press in its tender par 23 and par 35 after the word "vessel" in the second line to the end of the paragraph.

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