Matthews v SPI Electricity (Ruling No 38) - [2014] VSC 102

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) AND ORS	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 & 6 March 2014
DATE OF RULING:	21 March 2014
CASE MAY BE CITED AS:	Matthews v SPI Electricity & Ors (Ruling No 38)
MEDIUM NEUTRAL CITATION:	[2014] VSC 102

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EVIDENCE – Expert opinion based on specialised knowledge – Differentiation of primary and secondary facts – Expert as advocate – Admissibility – “Basis rule” – Necessary to distinguish fact and opinion – Evidence Act 2008 (Vic) s 79 – Civil Procedure Act 2010 (Vic) - Supreme Court (General Civil Procedure) Rules 2005 (Vic).

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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 the First Defendant	Mr J BR Beach QC with Mr P H Solomon SC Mr B F Quinn SC Mr D J Farrands Mr C O Parkinson Mr J H Kirkwood & Mr L Stanistreet	Herbert Smith Freehills
For the Second Defendant	Mr R Ray QC with Ms E M Brimer	Holman Fenwick Willan
For the Third, Fourth and Fifth Defendants	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 Fulbright Australia

HIS HONOUR:

Introduction

Dr Nick Hastings, an engineer engaged by Mrs Matthews, has at the request of her solicitors prepared two reports on asset management. He has also prepared a joint report on the same subject with Mr Alexander Dunn, an engineer engaged by SPI.[1] Dr Hastings is due to give evidence next month.
[1]SPI is no longer calling Mr Dunn and does not rely on his reports.
SPI argues that significant portions of Dr Hastings’ two reports are inadmissible on the following grounds:
(a) in many parts of the reports, Dr Hastings has made findings of fact (rather than relying on assumptions of fact and limiting himself to giving expert opinion) and has therefore ventured outside of his role as an expert. One aspect of this is his alleged failure to distinguish between “primary” and “secondary” findings of fact;[2]
(b) to the extent that Dr Hastings’ reports contain opinion evidence, the reports contain a melange of assumptions of fact and expressions of opinion. Because Dr Hastings has failed to distinguish between assumptions of fact and opinion, it is impossible to determine where the application of expertise exists;[3]
(c) to the extent that Dr Hastings’ reports contain opinion evidence, he has failed to adequately substantiate them or adequately link them to his expertise; and
(d) Dr Hastings should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 102
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of Matthews v SPI Electricity (Ruling No 38) was heard in the Supreme Court of Victoria. The dispute arose from a claim brought by the plaintiff, Matthews, against SPI Electricity for damages related to an electrical accident. Matthews alleged that SPI Electricity was negligent in the maintenance and inspection of electrical infrastructure, resulting in injuries. The court had to determine the admissibility of expert evidence presented by both parties.

The central legal issue was whether the expert evidence provided by both sides complied with the evidentiary requirements set out in the Evidence Act 2008 (Vic) and Civil Procedure Act 2010 (Vic). Specifically, the court needed to determine if the experts' opinions were based on specialised knowledge derived from their training, study, or experience, and if the opinions were properly distinguishable from the underlying facts. The court also had to consider whether the experts acted more as advocates than impartial analysts, which could affect the admissibility of their evidence.

The Supreme Court held that the experts' evidence should be distinguished between primary facts, which are observable and verifiable, and secondary opinions, which are derived from the primary facts. The court emphasised the need to differentiate between the two to ensure that the evidence was based on reliable principles and methods. Furthermore, the court underscored the importance of experts acting impartially, refraining from advocacy. The court ruled that while the experts' opinions were based on specialised knowledge, the manner in which they presented their evidence bordered on advocacy, which was impermissible. Consequently, parts of the evidence were deemed inadmissible.

The final orders of the court were that certain sections of the expert evidence provided by both Matthews and SPI Electricity were to be excluded from the trial. The court provided specific directions on the admissibility of the remaining expert evidence, ensuring that it adhered to the requirements set out in the Evidence Act 2008 (Vic) and the Civil Procedure Act 2010 (Vic).

Orders