Matthews v SPI Electricity Pty Ltd (Ruling No 32)
[2013] VSC 630
•18 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4788 of 2009
| CAROL ANN MATTHEWS | Plaintiff |
| V | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (According to the attached schedule) | Defendants |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 18 November 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 32) | |
MEDIA NEUTRAL CITATION: | [2013] VSC 630 | |
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PRACTICE AND PROCEDURE – Scope of role of assessors appointed to assist the Court – Transparency of communications between assessors and the Court – Civil Procedure Act 2010 (Vic) s 7, 9, 65H, 65F, 65M; Supreme Court Act 1986 (Vic) s 77.
PRACTICE AND PROCEDURE – Concurrent expert evidence sessions – Identification of matters in dispute prior to concurrent evidence session – Provision of questions to experts.
PRACTICE AND PROCEDURE – Concurrent expert evidence sessions – Restriction on communications between experts and the parties and/or the parties’ solicitors during the concurrent evidence session.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Richter QC with Mr T Tobin SC Mr A J Keogh SC Mr L W L Armstrong & Ms M Szydzik | Maurice Blackburn |
| For SPI Electricity Pty Ltd | Mr J Beach QC with Mr P H Solomon SC Mr B Quinn SC Mr D Farrands Mr C Parkinson Mr J Kirkwood & Mr L Stanistreet | Herbert Freehills Smith |
| For USC | Mr R Ray QC with Ms E Brimer | Holman Fenwick Willan |
| For the State parties | Mr C M Caleo SC with Mr P E Anastassiou SC Ms W A Harris SC Mr S A O’Meara SC Mr P Zappia Ms A L Robertson Dr M D Rush Mr N McAteer Mr A D Pound Ms J Firkin Mr J Heeley & Mr L Brown | Norton Rose Fullbright Australia |
HIS HONOUR:
Introduction
The factual evidence in Mrs Matthews’ case against SPI has concluded[1] and a number of concurrent evidence sessions are scheduled for November and December 2013 and March 2014.
[1]Subject to the tender of a small number of documents.
On Monday 18 November 2013, 10 experts[2] commenced the first of the concurrent evidence sessions, dealing with issues relevant to the cause(s) of the failure of the Valley Span conductor on Black Saturday.
[2]The experts have met in a number of conclaves identified by subject-matter. On the question of the conductor break there have been three conclaves: conclaves 1, 3 and 4.
This ruling addresses three matters:
(a) the provision of questions to the conclave 1, 3 and 4 experts;
(b) a limitation on communications between the conclave 1, 3 and 4 experts and the parties and their solicitors during their concurrent evidence session; and
(c) the scope of the role to be played by the two assessors that have been appointed to assist the court in relation to the expert evidence of conclaves 1, 3 and 4.
Background
In mid-2012, I provided a ruling concerning the organisation of the experts and grouped them into various conclaves.[3] The members of each of these conclaves have provided individual reports (in some cases, multiple reports). They have also prepared one or more joint conclave reports identifying areas of agreement and disagreement between conclave members.
[3]Matthews v SPI Electricity & Ors (Ruling No 10) [2012] VSC 379.
The members of conclaves 1, 3 and 4 – who deal with matters that go to the cause(s) of the failure of the Valley Span conductor on Black Saturday – were initially grouped into three conclaves that dealt with:
(a) conclave 1 – failure of the conductor;
(b) conclave 3 – quantitative analysis of the loads or stresses on the conductor; and
(c) conclave 4 – qualitative analysis of the loads or stresses on the conductor.
On 18 April 2013, I provided another ruling on the question of whether it was possible for me to determine the cause(s) of the failure of the Valley Span conductor without the assistance of a suitably qualified person with appropriate engineering and/or physics qualifications. The options I considered were:
(a) sitting alone;
(b) sitting with the assistance of an assessor(s); or
(c) referring this question to a special referee.
I reached the view that, given the technical nature of the matters considered by conclaves 1, 3 and 4, it was not appropriate for me to sit alone. I also decided that it was also inappropriate to make a referral to a special referee. Ultimately, I determined that the court should appoint one or perhaps two assessors to provide me with assistance in relation to this question. As I said in that ruling:
The appointment of an assessor will enable me to seek advice and guidance on scientific and engineering points which are beyond my ken, notwithstanding the assistance of the experts and the parties. I do not have Heerey J’s confidence that I could reach a decision without such assistance but I am sure of one thing – the judicial task can be better performed with such assistance and the likelihood of a fair determination enhanced.
I anticipate that I will need that assistance both before and during the expert witness concurrent evidence sessions as well as subsequently when reviewing the evidence given. I apprehend no restriction imposed by either s 65M of the CPA “to assist the Court” or s 77 of the SCA to “hear the proceeding…with their assistance” in the scope of the assistance provided by an assessor. However, it must be borne firmly in mind that the decision and the exercise of the judicial power is that of the judge and the judge alone.[4]
[4]Matthew v SPI Electricity & Ors (Ruling No 19) [2013] VSC 180 [34]-[35] (“Ruling No 19”).
Subsequently I appointed Professor David Nowell of the University of Oxford, and Emeritus Professor Robert Randall of the University of New South Wales, to assist me in resolving the issues considered by conclaves 1, 3 and 4 as to the fracture of the conductor.
Principles
Part 4.6 of the Civil Procedure Act 2010 (Vic)[5] deals with expert witnesses and expert evidence. The objects of Part 4.6 are set out in s 65F as follows:
The main object of this Part is to further the overarching purpose by-
(a)enhancing the case management powers of a court in relation to expert evidence in civil proceedings;
(b)restricting expert evidence to that evidence which is reasonably required to resolve a civil proceeding;
(c)emphasising the primary duty of an expert witness to the court.
[5]“CPA”.
Section 65H of the CPA provides:
(1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.
(2) A direction under subsection (1) may include, but is not limited to-
(a)the preparation of an expert’s report;
(b)the time for service of an expert’s report;
(c)limiting expert evidence to specified issues;
(d)providing that expert evidence may not be adduced on specified issues;
(e)limiting the number of expert witnesses who may be called to give evidence on a specified issue;
(f)providing for the appointment of-
(i)single joint experts; or
(ii)court appointed experts;
(g)any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding.
(3) A direction under subsection (1) may be given at any time in a proceeding.
Section 65M of the CPA specifically provides for the appointment of an assessor(s) “to assist the court”.
Section 65M does not give any further guidance or limitation upon the potential role of assessors in assisting the court. However, it must necessarily be limited by the objects set out in s 65F as well as the overarching purpose of the CPA (set out in s 7) and the court’s powers to further the overarching purpose (set out in s 9). Sections 7 and 9 of the CPA are extracted, in part, below:
7 Overarching purpose
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
9 Court’s powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects-
(a)the just determination of the civil proceeding;
…
(c)the efficient conduct of the business of the court;
…
(f)the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to-
(i)the complexity or importance of the issues in dispute; and
(ii)the amount in dispute.
Section 77 of the Supreme Court Act 1986 (Vic)[6] provides:
[6]“SCA”.
77 Assessors
(1) The Court may in any proceeding call in the assistance of one or more specially qualified assessors and hear the proceeding wholly or partially with their assistance but shall not be bound by their opinion or findings.
…
As I said in Ruling No 19, I see no explicit restriction in either the CPA or the SCA to the scope of the assistance to be provided by the assessors, other than the assessors’ roles being carried out in conformity with the overarching purpose set out in the CPA and according procedural fairness to the parties.
First issue: Questions for the experts
On 13 November 2013, after consultation with the assessors and with the assistance of the parties, I finalised a set of questions to be put to the expert witnesses in this concurrent evidence session. These questions are set out in the Annexure to this ruling.
These questions were provided to the experts and the experts were requested to provide the court with brief preliminary responses by close of business on 15 November 2013.
The purpose of these questions is twofold:
(a) First, to identify what appear, at least at this stage of the proceeding (and based on evidence adduced to date), the disputed matters that are of central importance when determining the cause(s) of the failure of the Valley Span on Black Saturday. The intention is that these questions will serve as a guide to the evidence adduced during the concurrent evidence session.
(b) Second, in obtaining a brief, preliminary response from each of the experts prior to the commencement of the concurrent evidence session I hope, to put it colloquially, to get a sense of the lay of the land in advance of the concurrent evidence session. I am hopeful that this will assist me in making any further direction(s) concerning the expert evidence.
Both of these purposes reflect the overall aim of Part 4.6 of the CPA and are supported by the breadth of the powers set out in s 65H of the CPA.
However, there are two points I should emphasise concerning the questions:
(a) First, the experts have been directed to limit their responses to no more than one paragraph per question and to exclude detailed explanation. I recognise that this places limitations on their answers. However, these are preliminary responses only. They are not binding and the experts will have the opportunity to expand on their answers in the concurrent evidence session.
(b) Second, although the intention is that the questions identify the remaining important points of contention, it may be that other areas of dispute arise either out of the fourth joint report[7] or out of the concurrent evidence session. The list of questions is a guide to the relevant issues but it is not intended to prohibit discussion of other matters – provided the evidence is germane to the question of the cause(s) of the failure of the conductor. The aim of the questions is to keep the expert and myself “on track” and focussed on the issues of greatest importance.
[7]Which the experts finalised on 14 November 2013.
Second issue: Quarantine of the experts
On 13 November 2013, I made an order precluding the expert witnesses of conclaves 1, 3 and 4 from communicating with the parties or the parties’ solicitors in the period commencing 9:00am on 10 November 2013 until the conclusion of their concurrent evidence session.
I also ordered that this restriction not operate between 10:00am on 16 November 2013 and 12:00pm on 18 November 2013. The basis for this exception is that these experts finalised their joint report on 14 November 2013 and provided individual answers to the questions set out in the Annexure to this ruling by close of business on 15 November 2013. In these circumstances, I consider it reasonable – perhaps necessary – for the parties to have a final opportunity to consult with their experts prior to their experts giving evidence. This exception ceases at 12:00pm on 18 November 2013, being the date and time when the concurrent evidence session is scheduled to commence. After that, and subject to any further order, the experts will be “quarantined” until the conclusion of their concurrent evidence session.
Third issue: Scope of the role of the assessors
The principles
As I have already noted, neither the CPA or SCA set out specific limitations upon or guidance concerning the appropriate role of assessors appointed pursuant to s 65M of the CPA and s 77 of the SCA.
Counsel for Mrs Matthews helpfully drew my attention to judicial consideration of the role of assessors.
The use of assessors to assist a judge in understanding scientific, technical or medical matters is time honoured. Viscount Simon LC in Richardson v Redpath, Brown & Co Ltd[8] said of the role of medical assessors:
But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.[9]
[8][1944] AC 62.
[9][1944] AC 62, 70 cited in Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269, 274-5 (de Jersey CJ, Thomas JA and Demack J).
The decision of Barker J of the High Court of New Zealand in Beecham Group Ltd v Bristol Myers Co[10] concerned a case where one of the parties had objected to the appointment of a scientific advisor – principally on the basis that there was uncertainty as to the role of the advisor. His Honour said as follows in relation to the role:
(a) The Court, at the commencement of the hearing, should define the role of the scientific adviser. As far as I would be concerned, his role would merely be to consider the submissions and assist the Judge in Chambers to understand them; if the adviser proffered any views of his own, either contrary to any submission or as additional matters for the Court to consider, then the Judge should seek the comments of counsel.
(b) The Judge should make it quite clear to the adviser that the legislation reposes the power of decision in the Judge alone, and that therefore he should not transgress his role of pure adviser.
(c) At the conclusion of the hearing, I would envisage that the scientific adviser’s service would be terminated. By that stage, the Judge should, with the adviser’s assistance, have obtained a sufficient grasp of the issues involved.[11]
[10][1980] 1 NZLR 185 (“Beecham”) as cited in Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368, 369-70.
[11][1980] 1 NZLR 185, 188 cited in (1997) 78 FCR 368, 369-70.
It appears that Beecham was the first occasion in a New Zealand case in which an advisor had been appointed. In fact, as the following extract demonstrates, things played out slightly differently in the course of the trial and subsequently (as his Honour noted):
[the scientific adviser] assisted me towards an understanding of difficult concepts of stereochemistry involved – a necessary basis for any intelligent decision on the merits of the appeal. …
… Counsel were happy that the adviser, in the course of the hearing, should comment on any scientific matters raised by counsel’s submission; if he had any thoughts of his own, I encouraged him to articulate them in open Court and to seek counsel’s reactions. Any major question which occurred to the adviser – not being simply a technical instruction to myself in the scientific area – was referred to counsel for their comment.
… after due discussion with counsel, I considered it appropriate to confer with the adviser after judgment had been reserved to ensure that every statement in this judgment of scientific fact or principle was correct. … [the scientific adviser] fully appreciated the limits of his role. He was at all times well aware that, under the legislation, he, as scientific adviser, was not empowered to make the ultimate decision on the appeal but now that he was employed purely in the capacity of a scientific adviser to the court.[12]
[12][1980] 1 NZLR 185, 195 cited in (1997) 78 FCR 368, 370.
Beecham was relied upon in the Federal Court decision of Genetic Institute Inc v Kirin-Amgen Inc (No 2),[13] a patent infringement proceeding in which the applicant had applied for the appointment of an assessor under s 217 of the Patents Act 1990 (Cth). That provision allowed the court to appoint an assessor “to assist it in the hearing and trial or determination of any proceedings under this Act” (s 217). Heerey J said the following in relation to the role of an assessor:
There is no question of an assessor giving any judgment or making any order (even by consent) or otherwise exercising any judicial functions. An assessor is appointed to assist the judge, both in hearing and trial and/or in determination of any proceeding. The judgment in the case, the exercise of the judicial power, remains that of the judge. In exercising judicial power, a judge is routinely assisted by persons who are not judges: counsel, solicitors, witnesses, the judge’s associate and secretary and other Court staff.[14]
and
How the assessor appointed under s 217 performs his or her role in the actual conduct of this case will of course be governed by law, including the rules of natural justice. It is not appropriate at this early stage to lay down any detailed prescription. Suffice to say that the practical experience of Beecham shows how an appointment can work well and be of great assistance to a trial judge, without infringing natural justice.[15]
The scope of the role of the assessors
[13](1997) 78 FCR 368 (“Genetic Institute v Kirin-Amgen”).
[14](1997) 78 FCR 368, 371.
[15](1997) 78 FCR 368, 372.
The primary role of the assessors is to assist the court in understanding the evidence of the experts. Applying the CPA, combined with the principles of natural justice and the guidance from the cases I have referred to, I set out below the scope of the role of the assessors in this case:
(a) The assessors’ role is to assist the judge. The decision is that of the judge alone.
(b) The assessors will sit with me during the concurrent evidence sessions. If they wish, they may question the experts (or counsel) in this context. Such questioning however will be limited to clarification of the evidence; that is, where they consider the evidence to be ambiguous, unclear or incomplete.
(c) I may consult with the assessors while sitting if I find a point of evidence unclear and seek their immediate input as to an appropriate or useful inquiry to make.
(d) I will consult with the assessors whilst in chambers on matters raised by the experts in their oral evidence and in their individual and joint reports. This may include advice as to any questions the assessors think I should ask counsel or the experts in order to determine the questions at hand.
(e) I will seek the guidance of the assessors on technical matters upon which I lack the requisite knowledge to understand without qualified assistance. This may include “lessons” on matters fundamental to, for example in this case, fracture mechanics or vibration.
(f) If the assessors raise a theory or opinion that has not previously been identified by the parties, I will discuss this with counsel.
(g) The assessors may from time to time provide me with advice on matters over which there is dispute between the experts. Such advice is not binding and the determination of a particular issue rests with the judge.
(h) I anticipate that I will consult with the experts immediately after the conclusion of the concurrent evidence session and, from time to time, while drafting the judgment. This is likely to include seeking confirmation from them that I have properly understood the meaning of the expert evidence of conclaves 1, 3 and 4. I repeat, however, that their role is confined to providing advice and ensuring that I have comprehended the evidence given. I also repeat that the decision on these issues is mine and mine alone
SCHEDULE OF PARTIES
BETWEEN
CAROL ANN MATTHEWS Plaintiff
and
SPI ELECTRICITY PTY LTD (ACN 064 651 118) First Defendant
UTILITY SERVICES CORPORATION LIMITED
(ACN 060 674 580) Second Defendant
SECRETARY TO THE DEPARTMENT
OF ENVIRONMENT AND PRIMARY INDUSTRIES Third Defendant
COUNTRY FIRE AUTHORITY Fourth Defendant
STATE OF VICTORIA Fifth Defendant
and
SPI ELECTRICITY PTY LTD (ACN 064 651 118) Plaintiff by Counterclaim
and
UTILITY SERVICES CORPORATION LIMITED
(ACN 060 674 580) First defendant to Counterclaim
SECRETARY TO THE DEPARTMENT
OF SUSTAINABILITY AND ENVIRONMENT Second Defendant to Counterclaim
COUNTRY FIRE AUTHORITY Third Defendant to Counterclaim
STATE OF VICTORIA Fourth Defendant to Counterclaim
CAROL ANN MATTHEWS Fifth Defendant to Counterclaim
ANNEXURE – Questions for the expert witnesses
1. Did mechanical fretting contribute to the failure of the Valley Span (VS) conductor?
a. Did fretting produce the depressions in strands 3 and 2 of the Valley Span (VS) from which the fatigue cracks grew?
b. Did fretting cause the development of the martensite layers in the depressions, the development of the quench cracks in those martensite layers, and the initiation and propagation of the fatigue cracks from those quench cracks?
2. Did arc damage from lightning contribute to the failure of the VS conductor?
a. Was it responsible for the formation of martensite layers in the depressions on strands 2 and 3?
b. Was it responsible for the formation of quench cracks in those martensite layers?
c. What was the impact of the quench cracks, if any, on the stresses required to initiate and propagate fatigue cracks in strands 3 and 2?
3. “Knock down” factor:
a. What is meant by a “knock down” factor on fatigue life in the presence of a stress concentrator? Is it affected by the amplitude of the stress applied?
b. Can a “knock down” factor be meaningfully applied to understand the fatigue life of the VS conductor?
c. If it can be meaningfully applied, what was the “knock down” factor for the Valley Span as a result of any arc damage?
4. The 45 degree crack plane:
a. What is the significance of the 45 degree fracture planes on strands 2 and 3 of the VS conductor, if any?
b. Are the 45 degree crack planes explained by torsional or other loading types?
c. If torsion, how might such torsional stresses be generated?
5. Did Aeolian vibration (AV) contribute to failure of the VS conductor?
a. Did AV occur on the VS?
i.What is AV?
ii.Under what conditions does AV occur?
iii.Is there any physical evidence of AV having occurred on the VS prior to BS?
iv.Does any data/modelling indicate that AV occurred on the VS prior to BS?
b. Did AV contribute to the initiation and propagation of the fatigue cracks in strands 2 and 3 that led to the failure of the VS conductor?
6. Did factors other than AV contribute to the failure of the VS conductor?
a. Other sources of loads or stresses:
i. Strong wind events / buffeting
ii. Transient events (if unrelated to AV)
b. Did any of these sources of loads or stresses contribute to the initiation or propagation of the fatigue cracks in strands 2 and 3 that led to the failure of the VS conductor?
c. Did the misalignment of the helical termination have any significant effect on reducing the life of the conductor?
7. Spiral vibration dampers:
a. If AV was present in the VS, would spiral vibration dampers have prevented or delayed conductor failure?
i. If dampers would have only delayed failure, what would have been the extent of that delay?
b. If AV was not present in the VS, would spiral vibration dampers have prevented or delayed conductor failure?
8. Assuming that strand 3 broke first, followed by strand 2 and then strand 1, how much time elapsed between strands 3 and 2 breaking? (This question ignores any second break of strand 3 which occurred distal to the point of the conductor failure as a result of bending stresses due to that strand hanging loose)
9. Are the VS field test results reliable/of assistance when considering the above questions?
a. Do any of these asserted limitations affect the reliability of the Vazey field test?
i. Use of new rather than aged conductor
ii. Location of strain gauges vis-à-vis helical wrap
iii.Use of different hardware including new pole 39
iv.Height of test conductors (impact of winds/turbulence)
v.Tension of test conductors
vi.Configuration and type of strain gauges
10. Are any of the other expert tests/modelling reliable/of assistance when considering the above questions?
a.Havard laboratory trial (re misaligned helical termination)
b.Gates laboratory tests
c.Barter:
i.bending, tension and torsional fatigue tests;
ii.fracture mechanics analysis re cyclic stress range and number of cycles required to initiate and continue fatigue cracking
d.Meehan Finite Element model
e.Potts:
i.Finite element model
ii.Laboratory conductor tests
f.Better’s test rig
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