Linfox Transport (Aust) P/L v Mercantile Mutual Insurance (Aust) Ltd No. DCCIV-00-574

[2002] SADC 135

LINFOX TRANSPORT (AUSTRALIA) PTY LTD

V

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

[2002] SADC 135

Judge David
Civil Jurisdiction

1. This is an appeal against a decision by District Court Master Norman of the 17^th June 2002.  In his decision Master Norman ruled that the plaintiff provide to the defendant a full and true copy of a report of Mr TJ Sinclair dated the 14^th July 1999 and make full discovery of that report.

2. In its amended Statement of Claim the plaintiff alleged that it owned a prime mover motor vehicle which was being driven on the Gladstone Road to Port Pirie when it came into collision with a Mitsubishi driven by Mr Edward Hollitt, as a result of which Mr Hollitt was killed.  It was alleged that the deceased held a policy of insurance with the defendant in respect of damage caused by his negligence but the defendant has refused to meet the plaintiff’s claim for its loss and damage caused to the prime mover in the collision.  The plaintiff claims declaratory relief, damages, interest and costs.

3. In its amended defence the defendant denies liability and pleads that the loss and damage caused to the plaintiff was not accidental as required by the policy because the deceased breached the policy.  I am told that it is alleged that the deceased committed suicide. 

4. I have been provided with two affidavits of Mr John Radbone on behalf of the defendant dated the 3^rd May 2002 and the 27^th May 2002.  Attached to the affidavit of the 27^th May 2002 is an expert’s report on behalf of the plaintiff from Mr GSJ England dated the 23^rd October 2000.   That report was sent to the defendant’s solicitors.  Mr England says the following:-

   “COLLISION ANALYSIS

   AND RECONSTRUCTION

   4 Blackwood Court

   RIDGEHAVEN.  S.A.  5097

   Telephone: [phone]
   Facsimile: [phone]
   Mobile: [phone]

   23^rd October, 2000.

   Mr Peter SALU
            Lawson Downs
            Sixth Floor, 97 Pirie Street
            ADELAIDE.  S.A.  5000

   Re:  Edward Harold Hollitt – DOD: 13.8.97

   Dear Sir

   With reference to your letter of 17^th October, 2000, the following is my amended report relative to the vehicle collision on the Gladstone to Port Pirie Road, on Wednesday, 13 August, 1997.

   INTRODUCTION

   At about 9.00 a.m. on Wednesday, 13^th of August, 1997, a collision occurred between a Mitsubishi Sigma sedan, S.A. USN‑452, driven by Edward Hollitt, and a Mack prime mover, S.A. WAY‑220, driven by Trevor Kalms, which was towing two Marshall tankers, S.A. YBP‑063 and S.A. YBP‑064, in a ‘B double’ road train configuration.  The collision occurred on the Gladstone to Port Pirie Road, 3.7 kilometres east of National Highway One, and resulted in the death of Edward Hollitt.

   I was provided with the following:

   Letter from Royal & Sun Alliance Insurance Company’s former legal representatives, Scholl Nicholson, to Mercantile Mutual, dated 13 July 1998

   Letter from Mercantile Mutual to RSA, dated 30 September, 1998
                     Letter from Mercantile Mutual to RSA, dated 8 March, 1999

   Coroner’s documents which are in effect a copy of the Police investigation into the collision.

   Autopsy Report

   Forensic Science Report
                     Report of TJ Sinclair & Associates
                     Your letter of 28 July, 1999.

   Your instructions were to provide an opinion as to:

   The line taken by the vehicles involved in the collision and how the collision occurred.

   The witness statements and any observations I may have made in respect of these.

   Whether the accident was consistent with my experience of driver suicide or an intentional act on the part of the deceased.

   The line of sight of various witnesses.

   There are obviously some matters in respect to the investigation on which I cannot comment.  However, I will comment on those matters which are within my area of experience and expertise.

   I have received and read Practice Direction 46, ‘Guidelines for Expert Witnesses in Proceedings in the Supreme Court of South Australia’.”

5. He then went on to give his opinion.  In the body of the report he does not refer again to the material that was provided to him.  The solicitor’s for the defendant then wrote asking for a copy of the report of TJ Sinclair & Associates which was mentioned in the report of Mr England.  A copy of that report dated the 14^th July 1999 was forwarded to the defendant’s solicitors on the 25^th March 2002 but portions were blacked out.  This document is exhibited to Mr Radbone’s affidavit.  The defendant’s solicitors wrote on the 2^nd April 2002 to the plaintiff’s solicitors asking for a full copy of the report disclosing the blacked out parts but that was refused.  The matter came on before Master Norman who held that the defendant “has established an entitlement to the full unedited report of Mr Sinclair and I order its discovery and production by the plaintiff”.  It is against that decision that the plaintiff now appeals.

6. It is argued by the plaintiff that there is no obligation for the plaintiff to provide the report of Mr Sinclair to the defendant as in the circumstances of this matter it does not come within District Court Rule 38A.  I set out the relevant part of that Rule.

   “DCR38.01A(4) provides as follows:

   ‘Upon a request to that effect by another party a party must in relation to an experts report delivered under rule 38.01;

   (a)provide to the other party a list of all documents which have been referred to, or prepared by or at the direction of, the expert in the course of preparing the report.”

7. It is argued by Mr Crocker of counsel for the plaintiff that that Rule does not apply to the present situation because if one takes a narrow view of the words of the Rule it is only those documents which the expert (Mr England in this case) relies on as the basis for what Mr Crocker has described as the “factual substratum” of his opinion that need be disclosed.   Mr Crocker argued that the fact that the material in Mr Sinclair’s report was “provided” to the defendant does not mean that it has to be disclosed unless that material form part of his conclusions.  He further argued that the material that was blacked out could not be part of Mr England’s conclusions.  It was initially very difficult for me to rule on that argument because I did not know what had been blacked out.  However Mr Crocker eventually told me that it amounted to a statement taken by Mr Sinclair a loss adjustor from the deceased’s wife in which she offered the opinion that she did not think that her husband would ever commit suicide.

8. I reject Mr Crocker’s arguments on two counts.  Firstly in my view the words “referred to” clearly mean handed over to the expert.  The words do not say referred to by the expert which is more consistent with Mr Crocker’s interpretation.  Even if the words mean that that material which can be disclosed is only the material that forms the basis of the expert’s opinion there is nothing before me to say that the whole of Mr Sinclair’s report did not play some part in Mr England’s opinion.  No one would really know that until Mr England was thoroughly and properly cross-examined.  It might well be that what the deceased’s wife said to a loss adjustor may not play any part in Mr England’s expert opinion as to the nature of the accident but whether it did or not may be the subject of cross-examination before the trial Judge.  Mr England in his report does not give any hint what material he took into account other than to list those documents that were sent to him.

9. A further argument was put that District Court Rule 38A does not overcome claims of privilege.  It is conceded that the blacked out material attracted legal professional privilege.  However I am of the view that the clear purpose of the Rule is to allow all that material which is referred to an expert in the preparation of his report to be seen by the other side for the purposes of cross-examination and preparation of their own case.  If the material comes within that category it is the clear intention that it overrides questions of privilege. 

10. I agree with the conclusions reached by Master Norman and I dismiss the appeal.