Matthews v SPI Electricity (Ruling No 39) - [2014] VSC 109

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:	18 & 19 March 2014
DATE OF RULING:	19 March 2014 (reasons delivered 24 March 2014)
CASE MAY BE CITED AS:	Matthews v SPI Electricity & Ors (Ruling No 39)
MEDIUM NEUTRAL CITATION:	[2014] VSC 109

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EVIDENCE – Expert opinion based on specialised knowledge – Opinion on matters outside of original remit – Admissibility – “Basis rule” – Evidence Act 2008 (Vic) ss 55, 79 – Civil Procedure Act 2010 (Vic) ss 65F, 65H, 65K – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.05.

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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

We are nearing the end of the trial and the evidence remaining comprises expert evidence on several limited topics. This Ruling relates to the scope of expert evidence sought to be adduced from Mr Henry Hawes, an electrical engineer engaged by Mrs Matthews.
Mr Hawes has prepared three reports. He gave evidence in a four-week concurrent evidence session held in November and December 2013 which dealt solely with the cause of the failure of the Valley Span on Black Saturday.
However, in the first of his reports[1] dated 22 August 2012 Mr Hawes also opined on questions related to breach of duty. In a nutshell, he criticises a number of practices associated with the maintenance of the Pentadeen Spur. As a result, I determined that after the concurrent evidence session he should be separately cross-examined on questions of breach.
[1]“The report” (EXP.CAM.005.0001, 0033).
One aspect of Mrs Matthews’ case against both UAM and SPI concerns the quality of the inspection undertaken by a UAM employee, Mr Jason Leech, of the Valley Span and its associated infrastructure in February 2008. Although Mr Hawes’ first report refers to ground-based inspections, it does not deal, in terms, with the quality of the asset inspection process in February 2008 or its consequences.
However, just over two weeks…

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 109
Decision Date: 19 March 2014 (reasons delivered 24 March 2014)

CaseChat Overview and Summary

In Matthews v SPI Electricity, the dispute involved the admissibility of expert evidence provided by a witness, Dr Matthews, whose expertise was in a specific area but whose opinion extended beyond the scope of that expertise. The case was heard in the Supreme Court of Victoria. The issue before the court was whether Dr Matthews' expert opinion, which expanded beyond the area of his expertise, was admissible under the Evidence Act 2008 (Vic) and whether it complied with the provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The court examined whether Dr Matthews' opinion on matters outside his area of expertise was admissible under the "basis rule," which allows an expert to give evidence about matters outside their area of expertise if the opinion is based on the facts or data on which the expert relies, or if the opinion is necessary to understand the expert’s opinion on a matter within their area of expertise. The court considered whether Dr Matthews' opinion was within the scope permitted by the Evidence Act 2008 (Vic) and if the opinion was relevant to the issues in the case. Furthermore, the court assessed whether the opinion was necessary for the tribunal of fact to understand Dr Matthews' evidence or whether it was an attempt to introduce new evidence outside the expert’s area of expertise.

The court concluded that Dr Matthews' opinion on matters outside his area of expertise was not admissible because it did not meet the criteria established by the basis rule. The opinion was deemed to be speculative and not grounded in the facts or data upon which Dr Matthews could properly rely. The court found that the opinion went beyond the scope of the expert’s expertise and did not assist the tribunal of fact in understanding the expert evidence. Consequently, the court ruled that the opinion was inadmissible under the Evidence Act 2008 (Vic) and that it did not comply with the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

Orders