Matthews v SPI Electricity Pty Ltd (Ruling No 34)

[2014] VSC 40

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:	21 February 2014
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 34)
MEDIA NEUTRAL CITATION:	[2014] VSC 40

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EVIDENCE – Use of model of electricity pole which fallen conductor was strung from – Relevance – Scope of application of Evidence Act 2008 (Vic) s 53 – Application of common law to in-court demonstrations – Civil Procedure Act 2010 (Vic) ss 1, 7, 8, 9, 49.

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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 Ms J Firkin Mr A D Pound Mr J Brereton Mr L Brown Ms J Swanwick & Mr J Heeley	Norton Rose Fullbright Australia

HIS HONOUR:

Introduction

1.We are near the end of the trial but points still arise about which the parties cannot agree.  This time it is about whether Mrs Matthews should be allowed to use a scale model of pole 38 as an aid in one of the forthcoming concurrent evidence sessions.

2.An important issue in this trial is whether the settings applied by SPI to a fault protection device known as an oil circuit recloser (OCR) on Black Saturday were appropriate.  In particular, should the “re-close” function of the OCR have been suppressed?  The next round of expert concurrent evidence (comprising members of Conclaves 6A, 6B and 6C) will deal with this issue. 

3.In determining this point it is important, if possible, to determine the sequence of events surrounding the fall of the length of the broken conductor that remained attached to pole 38. 

4.A 1.8 by 0.9 metre scaled model of pole 38 and its surrounds has been created by Maddigans, a surveying company, at the request of Mrs Matthews’ solicitors.  Mrs Matthews proposes to use the model in the course of the OCR concurrent evidence session.  Her lawyers say that this model will assist the experts and the Court.  SPI objects to the use of the model contending, primarily, that it raises the prospect of Mrs Matthews’ experts expounding new theories as to the manner in which the conductor fell.

5.I ruled, after reviewing written submissions and hearing oral argument, that the model may be used in court but solely as an aid to my understanding of the evidence.  My reasons now follow.  

Submissions

6.Counsel for Mrs Matthews wish to use the model, so it is said, for the limited purpose of assisting the Court in understanding the evidence to be adduced in the concurrent evidence session.  It is accepted that the model cannot be used as independent evidence of any fact in issue.  

7.Mrs Matthews also contends that it is not necessary for the model to be an exact replica of the original (although it is said that a high level of diligence and care was taken in creating it).[1]  She says that, if SPI is concerned as to the accuracy of the model, the appropriate solution is for SPI to make submissions as to the weight that should be afforded to evidence given in connection with the model.

[1]On this point she refers to R v Neilan [1992] 1 VR 57, 74-5.

8.SPI objects to Mrs Matthews’ use of the model as an aid during the concurrent evidence sessions on three grounds:

(a)   First, SPI says that it has not been provided with the opportunity to review what it describes as the “elaborate stages in the development of the model”.  It says that checking those stages would be complex, timely and costly.

(b)   Second, SPI says that Mrs Matthews’ use of the model during the concurrent evidence is unnecessary as the experts’ joint reports are perfectly understandable by the Court without further aid.

(c)    Third, SPI says that if Mrs Matthews is allowed to use the model there will be a risk that the experts will give further supplementary opinions that go beyond their reports, and/or that inadmissible evidence will be introduced in relation to the movement of the conductor as it fell to the ground (the latter being an issue of critical importance).

9.During oral submissions it became clear that, if Mrs Matthews limits her reliance on the model to that of an aid, the first objection falls away.  The second was only pressed faintly.  In the case of the third, senior counsel for SPI argued that the model will effectively become a conduit for Mrs Matthews’ lawyers to adduce new evidence from the experts not previously raised in their individual or joint reports. 

Analysis

10.Section 53 of the Evidence Act 2008 (Vic) regulates the use of demonstrations and experiments. It provides (among other things) that:

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

Then, by s 54, the trier of fact is entitled to utilise observations on a view or in the course of a demonstration or experiment as part of the evidentiary material. 

11.It was, I suspect, the risk of the model being used in such a way (encouraged by a very detailed letter of the model’s construction from Mrs Matthews’ lawyers to SPI’s lawyers) that provoked the resistance of SPI to the use of the model.  In Evans v R,[2] Heydon J set out the common law position in relation to views, demonstrations and reconstructions as follows:

It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony.[3]

His Honour also held that s 53 of the Evidence Act does not apply to conduct inside the courtroom:

[T]he ordinary meaning of the text of s 53, taking into account its context in the Act and the purpose or object underlying the Act, which includes the expeditious conduct of trials, is that s 53(1)-(3) does not apply to conduct inside the courtroom.[4] (emphasis added)

[2](2007) 235 CLR 521 (“Evans”).

[3]Evans (2007) 235 CLR 521, 574 (Heydon J), citing Ormerod, “A prejudicial view” [2000] Criminal Law Review 452, 453.

[4]Evans (2007) 235 CLR 521, 579 (Heydon J).

Two conclusions follow from these statements of principle. First, and simply, s 53 is not applicable in this case as the model is sought to be used inside the courtroom. Second, accepting that the Evidence Act does not apply to in-court demonstrations, the common law applies and so strict rules of proof attach to such an exercise.[5]

[5]  See, eg, Evans (2007) 235 CLR 521, 540 (Kirby J), 576 (Heydon J); see also Scott v Numurkah Corporation (1954) 91 CLR 300.

12.Accordingly, the fears of SPI that the use of the model may provide some evidentiary foundation for Mrs Matthews’ experts to expound new opinions appear to be unfounded.  This is particularly so given that counsel for Mrs Matthews now eschews any reliance upon the model as an evidentiary foundation for the experts’ opinions.

13.As I have said, the result is that the common law (as modified by other relevant legislation) must apply in circumstances where a model is used to assist a court in the evaluation or understanding expert evidence. In determining whether to allow the use of a model, s 49 of the Civil Procedure Act 2010 (Vic) (CPA) is relevant:

49  Court’s power to order and direct trial procedures and conduct of hearing

(1)   In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.

(2)   A direction or an order under subsection (1) may be given or made by the court at any time-

(a)   before a hearing commences; or

(b)   during a hearing.

…

14.The overarching purpose referred to is set out in s 7 of the CPA being “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”.[6] Section 8 requires a court to give effect to the overarching purpose in the exercise of its powers and s 9 sets out a number of further objects to be taken into consideration when seeking to give effect to the overarching purpose.[7]

[6]CPA s 7 (emphasis added).

[7]Including: “the just determination of the civil proceeding”: CPA s 1(a).

15.It follows that, notwithstanding the Evidence Act and the common law position in relation to a demonstration or an experiment in court for the purposes of admission into evidence, s 49 of the CPA enables a court to authorise the use of a model to assist in the comprehension of a particular piece of evidence in facilitating a just resolution of the trial.

16.Indeed, the use of aids to assist a court in understanding the evidence given in a trial is a long-standing practice permitted by the common law.  For many decades in common law trials in this and other States, counsel have used models of various parts of the human anatomy to assist juries and judges considering medical issues germane to the determination of a case.  In Evans, Heydon J, in rejecting that s 53 governed court room demonstrations, said the following:

In short, “[d]emonstrations are frequently given in the witness box …, both by ordinary witnesses and by professional witnesses such as medical or pathological experts.  It is common for an ordinary witness by physical actions … to support oral evidence of an observed actions…” On the accused’s argument, “demonstrating” how a car accident occurred by the use of models, “demonstrating” distances by the use of the hands, … or “demonstrating” what the posture of a person was, or how a knife or a gun was held, or how a blow was struck, or where an organ in the body is … - all these common forensic events, which are illustrations of witnesses communicating more clearly by actions than they can in words, would call for a s 53 / s 192 inquiry.[8] (emphasis added)

[8] (2007) 235 CLR 521, 578. Section 192 relates to the giving of leave or directions in relation to a particular matter.

17.Similarly, in R v Burles and Murphy, for example, it was said that “minor demonstrations, such as the capacity of a plaintiff to bend a knee, or the course of vehicles illustrated by the use of models, are not infrequent”.[9]

[9][1964] Tas SR 256, 257 (Gibson ACJ).

18.Returning now to this case.  Mrs Matthews wishes to use the model merely as a demonstration aid during the Conclave 6A, 6B and 6C concurrent evidence session.  Having inspected the model – it was delivered by Mrs Matthews’ lawyers to the Court on 17 February 2014, upon my request – I am satisfied that, used solely as an aid to understanding, the model is likely to be of assistance to me in understanding the evidence that is given by the various experts. 

19.I do not accept that use of the model has been rendered superfluous by the presence of many, many photographs of the pole.  As I have said I think it will be helpful to any explanation the experts wish to make to enhance my understanding of the issues surrounding the fall of the conductor and the operation of the OCR.  Moreover, this is an important part of Mrs Matthews’ case and it is important that any aid that can be utilised to ensure a just resolution of this proceeding be deployed.  The model is just such an aid.

20.I repeat that its use must be strictly confined to that of an aid: the model will be permitted for the limited use of providing me with a reference point as to what the experts are speaking about when giving concurrent evidence.  In particular, the parties will not be permitted to use the model to conduct any form of test or experiment and will not be permitted to rely on the model as an evidentiary base upon which to establish the sequence of events after the conductor broke.

21.With its use limited in this way, I am not satisfied that the use of the model itself creates a prospect that Mrs Matthews’ witnesses will use it in order to raise new theories concerning the sequence of events at pole 38 after the conductor broke – the concern raised by senior counsel for SPI.  Senior counsel for Mrs Matthews has made it clear this is not his intention.  In any event, the scope of the expert evidence will be dealt with by me, if and when it arises as an issue, in the course of the general management of the expert concurrent evidence session, in accordance with the rules of evidence and procedure.

1. I am satisfied that the model should be utilised in the way I have indicated.

   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 ENVIRONMENT AND PRIMARY INDUSTRIES    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