Matthews v SPI Electricity (Ruling No 39)
[2014] VSC 109
•19 March 2014 (reasons delivered 24 March 2014)
| 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 | 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 ago, Mrs Matthews filed a notice of intention to adduce opinion evidence from Mr Hawes.[2] It confirms that Mrs Matthews now seeks to lead evidence from Mr Hawes in relation to many aspects of the asset inspection process. SPI and UAM oppose the admission of this evidence.
[2]“The Hawes notice” (CRT.CAM.521.0001).
As a result two issues have arisen:
(a)First, in relation to what is disclosed in the report: UAM submitted that Mr Hawes does not have the relevant expertise to give opinion evidence about what should and should not have been seen from a ground-based inspection of poles 38 and 39 and, accordingly, certain segments of the report should be struck out.
(b)Second, in relation to the contents of the Hawes notice, SPI and UAM contend that Mrs Matthews should not be permitted to adduce this evidence at all at this late point in the trial.
I have concluded that the report is admissible. Mr Hawes’ evidence as to a ground-based inspection of the two Valley Span poles is appropriately based on his expertise: namely, it is made from the perspective of an electrical engineer. It is relevant to the case against both SPI and UAM. However, the evidence that Mrs Matthews’ proposes to adduce from Mr Hawes, as set out in the Hawes notice, will not be permitted. It opens up new issues and has been served far too late. My reasons follow.
My decision on the issues was delivered orally on 19 March 2014 with my reasons reserved. This was to enable Mr Hawes to give evidence on 20 March 2014, in accordance with the trial calendar.
Legislative Provisions
Evidence Act 2008
I repeat what I have set out in Ruling No 38[3] in relation to ss 76 and 79 of the Evidence Act 2008 (Vic).[4]
[3][2014] VSC 102, [7]-[9].
[4]“Evidence Act”.
I extract again part of the majority’s reasons in Dasreef Pty Limited v Hawchar,[5] in relation to s 79 of the Evidence Act 1995 (NSW):[6]
In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence, that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.[7]
[5](2011) 243 CLR 588 (“Dasreef”).
[6]Section 79 of the Evidence Act is identical to the New South Wales provision.
[7](2011) 243 CLR 588, 602-3 (emphasis added).
Section 55 of the Evidence Act goes to relevance, stating:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to-
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Civil Procedure Act 2010
Part 4.6 of the Civil Procedure Act 2010 (Vic)[8] deals with expert witnesses and expert evidence. Section 65F sets out the “main object” of Part 4.6, being 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 a court.
[8]“CPA”.
Section 65H provides that:
(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—
…
(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;
…
Section 65K provides that:
(1) A court may give any direction it considers appropriate in relation to the giving of evidence by any expert witness at trial.
(2) Without limiting subsection (1), the court may direct that any expert witness –
…
(b) give evidence concurrently with one or more expert witnesses;
…
Supreme Court (General Civil Procedure) Rules 2005
Rule 44.05 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)[9] reads as follows:
[9]“Civil Procedure Rules”.
44.05 No evidence unless disclosed in report
Save with the leave of the Court or by consent of the parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order.
Background to this application
Mr Hawes is a semi-retired civil engineer with four decades of experience in the design, construction and maintenance of overhead lines in Queensland (predominantly transmission lines). Mrs Matthews’ proposed list of experts, dated 30 May 2013, sets out his expertise and the issues on which he was intended to opine:
(a) Civil engineering, specialising in line design, line construction and management, wind engineering and wind impact on powerlines
(b) Line design, wind induced vibration, protection from wind-induced vibration
Of Mr Hawes’ three reports, only the first, deals with the question of ground-based inspections and the observation of pole top defects.
As I have already mentioned, Mr Hawes gave evidence as part of a four-week concurrent evidence session held in November and December 2013. This session dealt with why the Valley Span failed on Black Saturday. During this session, Mr Hawes’ evidence extended beyond causation into questions of breach, concerning issues related to asset management and engineering.
At the time I decided that it was not appropriate for evidence relating to breach to be dealt with during that session and that Mr Hawes would return in 2014 to be cross-examined on his opinions concerning breach.
Until that point, the possibility of Mr Hawes opining on matters concerning asset inspection – as opposed to matters concerning asset management and engineering – had been mentioned in passing by counsel for Mrs Matthews at different points during the course of the trial. The prospect of him doing so in a conclave was first formally raised in December 2013. On 14 February 2014, Mrs Matthews filed written submissions proposing that Mr Hawes be included as a member of Conclave 15, the “asset inspection conclave”.[10] Conclave 15, at that time, comprised two other experts, Mr Robert Lowe (engaged by Mrs Matthews) and Mr Kent Gosden (engaged by UAM). Mrs Matthews’ submissions also attached a revised version of Mr Hawes’ CV in support of the application.
[10]SUB.CAM.014.0001.
On 5 March 2014, Mrs Matthews made a formal application that Mr Hawes be included in Conclave 15 and participate in the concurrent evidence session concerning asset inspection. However, I determined that Mr Hawes would be separately cross-examined on matters relevant to breach contained in his report. Similarly, I decided that Messrs Lowe and Gosden would also give evidence individually.
During the discussion of the composition of the concurrent evidence session it became clear that counsel for Mrs Matthews intended (if permitted) to lead evidence from Mr Hawes concerning the asset inspection of the Valley Span prior to Black Saturday (in addition to questions of asset maintenance and engineering, as already anticipated). Specifically, counsel indicated that he would seek to lead evidence regarding the “detectability” of defects in poles 38 and 39, their associated infrastructure, and in the Valley Span conductor itself.[11] This included splits in pole 39, elongated bolt holes in pole 39, the misaligned helical wrap at pole 39, the loose and/or missing coach bolt at pole 39, and the mud staining at both poles 38 and 39. Further, Mrs Matthews intended for Mr Hawes to express an opinion as to whether the defects “…should have been detected and maintenance should have been applied.”[12]
[11]T17489.
[12]T17487-91.
As a consequence, I made orders directing Mrs Matthews to file a document setting out the substance of the evidence that she sought to adduce from Mr Hawes in relation to asset inspection. The Hawes notice was filed on 12 March 2014.
Evidence already adduced concerning inspection of the Valley Span
The question of what, if anything, should have been seen and done in relation to defects on pole 39 has already been addressed by a number of witnesses with training and experience in pole inspections. In particular, there was Mr Jason Leech, the UAM asset inspector who was the last person to inspect poles 38 and 39 prior to Black Saturday.
Mr Thomas Reuel (formerly a Powercor asset performance officer) and Mr Warren Knop (formerly a compliance enforcement officer at the Office of the Chief Electrical Inspector) have been called by Mrs Matthews and gave evidence concerning what could be observed of the pole top defects on pole 38 and 39. They did not give evidence as to what should be reported as a consequence.
The following witnesses were cross-examined by counsel for Mrs Matthews as to whether particular defects should have been reported in accordance with the Asset Inspection Manual[13]: Mr Denis McCrohan (the SPI maintenance manager), Mr John Costolloe (who was responsible for developing the AIM), and Mr Maurice Braden (the UAM asset inspection trainer who trained Mr Leech).
Mr Hawes’ amended CV
[13]“AIM”: SPN.005.001.0204.
Returning now to the question of expertise. Mr Hawes’ qualifications as a highly experienced engineer in the electricity industry are not in issue. As I previously noted, on 14 February 2014 Mrs Matthews’ lawyers filed a revised version of Mr Hawes’ CV. It contained significant additional information when compared with the CV already tendered.[14] I extract below, in reverse chronological order, those parts of the revised CV that are new.
[14]The original version of Mr Hawes’ CV was attached as Appendix 1 to the report.
The amended CV added the following in relation to Mr Hawes’ experience from January 2005 – July 2006 as Manager of Transmission Line Maintenance for Powerlink Queensland:
During this period regular inspections of various types of overhead line construction and maintenance were carried out several times each week, from the ground
(using binoculars) Elevated Platform Vehicles, from helicopters or by climbing structures, to assess defects, degradation or wear of components and to advise field maintenance linesmen.[15]
[15]SUB.CAM.014.0001, 0011.
The following was inserted concerning Mr Hawes’ experience from July 1998 to January 2005 as Manager of Business Development (engineering):
During this period he also carried out specialist ground based inspections (utilising binoculars) of overhead line maintenance with Tenaga National Berhad line staff in Malaysia as part of a consultancy investigations.[16]
[16]SUB.CAM.014.0001, 0011.
Mr Hawes’ experiences as Manager of Transmission Line Development from 1996 to June 1998, and as the Senior Civil Design Engineer in transmission from 1995-1996 for Powerlink Queensland, were enlarged upon as follows:
Field inspections of various types of overhead line construction were frequently carried out either from the ground (with binoculars) Elevated Platform Vehicles, from helicopters or by climbing structures, to assess defects, degradation or wear of components and to advise field maintenance linesmen and construction personnel.[17]
[17]SUB.CAM.013.0001, 0011-0012.
An identical paragraph to that at [30] was also inserted in relation to his experience as the senior design engineer from 1977 to 1995 for the Queensland Electricity Generating Board, the Queensland Electricity Commission and Powerlink Queensland.
More generally, the revised CV also includes the following comments concerning Mr Hawes’ experience as a civil engineer on transmission lines:
This included engineering support for the structural and electrical design on wood pole and concrete pole distribution designs (SWER, LV, 11kV, 33kV and 110kV construction); investigation of major defects ; investigation of damage from wind storms and aeolian vibration; standard design drawing preparation; and material specifications (including specification and design recommendations for use of vibration protection.
Field inspections of various types of overhead line construction were frequently carried out either from the ground (with binoculars) Elevated Platform Vehicles, from helicopters or by climbing structures, to assess defects, degradation or wear of components and to advise field maintenance linesmen and construction personnel.[18]
[18] SUB.CAM.014.0001, 0012.
The fresh details in Mr Hawes’ updated CV are surprising. They appear to have been inserted with the intention of demonstrating that Mr Hawes is qualified to give the additional evidence Mrs Matthews now seeks to adduce; namely comments going to ground-level field inspections utilising stabilised binoculars with a view to assessing defects and degradation of components. In contrast, the CV first tendered makes no mention of this form of expertise
The contents of the report and its antecedents
When instructing Mr Hawes to prepare the report, Mrs Matthews’ lawyers put the following questions to him:
1.In what respects, if at all, did the:
(a) design (including placement);
(b) construction; or
(c) maintenance;
of the Valley Span as in place prior to 7 February 2009 depart from appropriate powerline engineering practice, as appropriate practice stood at any relevant time prior to February 2009? In providing your opinion, please include specific consideration of:
(i)topography and wind conditions around the Valley Span;
(ii)indicators, if any, of wind-induced vibration of the conductor on the Valley Span;
(iii)vibration dampers;
(iv)appropriate practice in respect of retrofitting components, or replacement of aged or obsolete components;
(v)any other matters you consider relevant.
2.If in answer to Question 1 you conclude that the design, construction or maintenance of the Valley Span departed from appropriate powerline engineering practice:
(a) how, if at all, was each departure likely to affect the risk that the Valley Span would not be safe, or not operate safely; and
(b) what are your conclusions as to whether each departure in fact affected the safety or safe operation of the Valley Span?
3.What is the design function of the clevis and thimble assembly (“clevis assembly”) holding the helical wrap and forming part of the termination assembly on Pole 39 on the Valley Span, and what risks for the safety or reliability of the Valley Span were likely to arise if the clevis assembly was not functioning correctly?
4.What if any features of the clevis, thimble and helical wrap on Pole 39 are relevant to an assessment as to:
(a) whether the helical wrap was properly seated in the thimble groove, or alternatively had dislocated so that it was jammed or partly jammed between the outside edge of the thimble and the inside edge of the clevis;
(b) if the wrap had dislocated as described in (a), the probable approximate period of time over which it had been dislocated; and what are your conclusions as to each of those matters?
5.If in answer to Question 4 you conclude that the helical wrap had dislocated, what if any features of the clevis, thimble, helical wrap or conductor are relevant to indicate whether the dislocation:
(c) had any and if so what effect on the functioning of the clevis assembly;
(d) had any and if so what effect on the type or extent of mechanical or other loads on the conductor at the distal (western) end of the helical wrap; and what are your conclusions as to each of those matters?[19]
[19]Mrs Matthews’ list of questions for experts dated 15 June 2012: CRT.SPN.201.0001, 0004-0005.
Pausing here it will be noted immediately that there was no question directed to the issue of asset inspection or the observability of defects of the pole. Nor was the adequacy of the asset inspection mentioned.
Turning now to the content of the report (produced in response to the above questions). Under the heading “Maintenance” the following appears:
[a]n appropriate ground inspections [sic] make [sic] use of stabilised binoculars and should have identified and report [sic] most defects.[20]
Mr Hawes then refers to the AIM which states, in relation to general ground-level inspections of conductors using stabilised binoculars, that:
[a]ny detailed assessment of the condition of conductors needs to be carried out at conductor level.[21]
After detailing the various “defects” that should have been observed from the pole top, Mr Hawes concludes:
[i]n my opinion, failure to carry out such an investigation is departure from appropriate powerline engineering practice.[22]
[20]EXP.CAM.005.0001, 0032 (line 931).
[21]EXP.CAM.005.0001, 0033 (line 935).
[22]EXP.CAM.005.0001, 0032 (line 947) (emphasis in original).
As to the detail of the defects set out in the report, Mr Hawes identifies the following in relation to pole 39:
a) A significant longitudinal shrinkage crack existed in the pole top that also aligned with the in line conductor termination eye bolt passing through the pole. Refer Figure 18.
b) The conductor attachment eyebolt hole on the side facing pole 38 was significantly elongated. Refer Figure 19 and Figure 21.
c) The preformed helical termination fitting appeared to have been the original fitting installed in 1966 and was significantly corroded.
d) The preformed helical termination thimble, based on material provided to me, had been removed from the pole with evidence of having been misaligned and jammed against into the clearance space of the connecting clevis fitting.
e) The conductor used in the span had significant surface corrosion and pitting. (Refer comments on Conductor Design Serviceability Line 422.)
f) Two of the conductor strands had fractured sometime prior to the final failure on 7 February 2009.
g) No vibration dampers had been installed on the 1046m span.
h) Significant wear had occurred to the overhead bridging conductor in the post insulator groove on the top of the pole. Refer Figure 25.
i) Corrosion and wear ‘mud’ staining of the pole top insulator skirt and wash onto the galvanised insulator support cap are evident.
j) This pole was burnt in the immediate above ground zone as a consequence of the fire on 7 February 2009, and only the butt section in the ground and the top 2.5m section remained available for inspection.[23]
[23]EXP.CAM.005.0001, 0033-0034 (lines 960-1010).
In relation to Pole 38, Mr Hawes describes certain defects that he alleges should have been identified with an appropriate inspection from the ground (using stabilised binoculars):
a) A zone of significant longitudinal pole top cracking exists in the vicinity of eye bolt conductor termination position at the top 1050 of the pole. Refer Figure 22.
b) The conductor attachment eyebolt on the side facing pole 39 had significant elongation above the eye bolt. Refer Figure 22.
c) Significant wear to the overhead bridging conductor in the post insulator groove on the top of the pole was clearly evident with ‘mud’ stains. Refer Figure 26.
d) Corrosion and the characteristic vibration wear ‘mud’ staining on the pole top insulator skirt and wash onto the galvanised insulator support cap are clearly evident.[24]
He concludes this section by stating:
Each of these items in my opinion, from an engineering perspective, are clearly of a nature that should have been noted for further engineering investigation.[25]
[24]EXP.CAM.005.0001, 0036 (lines 1048-1063).
[25]EXP.CAM.005.0001, 0036 (line 1064).
Should any part of the report be excluded?
There is no basis to exclude any part of the report identifying the items on poles 38 and 39 that, in Mr Hawes’ opinion, could have been observed from a ground-based observation. It is clear, as Mr Hawes states, that his opinion as to the ability to observe particular defects is based on his engineering expertise.
Ultimately, SPI did not contend that the report was inadmissible in the case against it.
In relation to the case against UAM, I do not accept UAM’s submission that Mr Hawes lacks relevant expertise. It is artificial, in the extreme, to endeavour to exclude this opinion on the basis of lack of expertise (i.e. Mr Hawes has no asset inspection experience). There is a common thread in the expertise of both an asset inspector and an engineer in this context: the ability to observe and analyse the structural integrity of an overhead powerline. This alone differentiates Mr Hawes’ position from that of Mr Basden, the expert hygienist in Dasreef.
An engineering opinion as to what may or may not have been seen from a ground-based inspection of the Valley Span infrastructure has s 55 relevance in the case against UAM. At the very least it is one piece amongst all of the other pieces of evidence relating to a ground-based inspection of the two poles. The question of what weight, if any, is to be attached to the opinion is a matter for final submissions.
Should Mr Hawes be permitted to give opinion evidence as proposed in the Hawes notice?
In contrast to the limited content concerning ground-based inspection in the report, the Hawes notice broadens the scope of the evidence sought to be led from Mr Hawes extraordinarily. Mrs Matthews now seeks to elicit Mr Hawes’ opinion on five new matters:
(a)the quality of the ground-based asset inspection of poles 38 and 39 carried out in February 2008;
(b)the reporting of any observed defects by an asset inspector;
(c)the role and response of a technical assessor upon the reporting of a defect by an asset inspector;
(d)whether it would have been necessary for poles 38 and 39 to have been inspected using an elevated work platform (i.e. a cherry-picker) upon further assessment by a lines engineer; and
(e)what a person could observe of the pole 38 and 39 pole tops from an elevated work platform and what the appropriate maintenance would be for certain defects.
Apart from an oblique inference that may be drawn in respect of (a), not one of these matters was, as I will demonstrate, mentioned in the context of asset inspection in the report.
Content of the Hawes notice in comparison to with the report
I have summarised below relevant parts of the Hawes notice, indicating matters upon which Mrs Matthews proposes that Mr Hawes give evidence. I have italicised those parts that raise material not previously addressed by Mr Hawes in the report.[26]
[26]I note that in this analysis I have only considered the report up to and including sub-section 2 of Part B (“Maintenance”): beyond this point Mr Hawes’ opinions rely on a closer examination of the assets than a ground-based inspection of the assets. Section 2 concludes at EXP.CAM.005.0001, 0036.
On the question of ground-based inspection techniques, the Hawes notice says:
3.1 … that appropriate ground-based inspection techniques for inspecting overhead line assets of the kind and in similar terrain as poles 38 and 39 would have included:
a. Use of stabilised binoculars
b. Using the stabilised binoculars, examination of the conductor and the pole fittings from at least 3 positions.
…
3. 2 That an asset inspector exercising appropriate care and skill and using an appropriate inspection technique during February 2008 would have observed defects listed below on the top of poles 38 and 39 (in addition to the already reported changes in insulator discs and sound-wood measurements)[27]
[27]CRT.CAM.521.0001, 0003. I note at this point that the report as compared to the Hawes notice makes no reference to applicable reporting codes.
I note that although Mr Hawes referred in the report to a ground-based observation using stabilised binoculars and the AIM, he says nothing about the role of an asset inspector and asset inspection techniques in February 2008.
In relation to pole 38 and ground-based observations, the notice contains the following:[28]
(a)Excessive[29] mud staining on the pole top insulator – code 25C priority P2
(b)Pitting of the tie wires and bridging conductor “tails” (on either side of the pin insulator – code 25C priority P2[30]
(i) Apparent elongated strain assembly eyebolt hole on the east side of Pole 38[31] – no report required
(ii) Shrinkage splits in the wood around the pole top[32] – no report required
(iii) Corrosion of the conductor in the span, visible from the area around Pole 38[33] – code 25C priority P2.
[28]CRT.CAM.521.0001, 0003 and 0004.
[29]The report refers to “[c]orrosion and wear ‘mud’ staining of the pole top insulator skirt and wash onto the galvanised insulator support cap”: EXP.CAM.005.0001, 0034.
[30]The report refers to mud staining but does not characterise it as excessive: EXP.CAM.005.0001, 0036.
[31]The report refers only to elongation of the conductor attachment eye bolt hole, not the strain assembly eye bolt hole: EXP.CAM.005.0001, 0036.
[32]The report refers to “a zone of significant longitudinal pole top cracking … in the vicinity of eye bolt conductor termination position at the top of the pole”: EXP.CAM.005.0001, 0036.
[33]The report refers to “significant corrosion” “in the span between pole 38 and pole 39 recovered after the fire”; it does not make any comment as to where the corrosion would be observable from: EXP.CAM.005.0001, 0011 and 0013.
On the same topic, the Hawes notice says the following in relation to pole 39:[34]
[34]CRT.CAM.521.0001, 0003-0005.
(a)significant longitudinal (vertical) shrinkage and cracking at the top of Pole 39, comprising:
(i)an east-west transverse split aligned to the strain assembly eyebolt (no report required) on the west side; and
(ii)a split aligned to the pole-cap coach bolt on the east side (code 8 priority P2)[35]
[35]Subparagraphs (i) and (ii) appear to be additional detail.
(b)significant vertical splitting of the pole near ground-level (deduced from post-fire burn evidence on Pole 39) – Asset Inspection Manual does not appear to permit reporting of splits if surrounding wood is otherwise sound:
(i) Eye bolt holes:
i.Apparent elongation of the strain assembly eye bolt hole on the western side of Pole 39 – code 26 or 45 (Asset Inspection Manual unclear), priority P9 Apparent elongation of the back stay assembly eye bolt hole on the eastern side of Pole 39[36] – no report required
[36]The report refers to elongation of the conductor attachment eye bolt hole rather than any stay attachment eye bolt holes.
(ii) Coach bolts:
i.Loose (because located in split) or missing coach bolt on the east side of Pole 39 – code 8 priority P2 (compulsory rating nominated by Asset Inspection Manual)
ii.Protruding coach bolt on the south-western side of Pole 39 – code 8 priority P2
(c)misalignment of the preformed helical on the western side of Pole 39 – code 26 priority P1 (30 days, but phone-in required):
(i) Pitting of the bridging conductor “tails” on Pole 39[37] – code 25C priority 2 (compulsory rating nominated by Asset Inspection Manual)
(ii) Corrosion of the conductor in the span, visible from the area around Pole 39[38] – code 25C priority P2 (compulsory rating nominated by Asset Inspection Manual, but condition around Pole 39 less severe than Pole 38)
[37]The report refers to “Significant wear to the overhead bridging conductor in the post insulator groove on the top of the pole”: EXP.CAM.005.0001, 0034. It also refers to corrosion to “the termination tails of the conductor over the top of each pole”: EXP.CAM.005.0001, 0012 and 0013. There is no reference to pitting of the bridging conductor.
[38]As I have noted in relation to pole 38 the report refers to corrosion in the span but it does not make any comment as to where the corrosion would be observable from: EXP.CAM.005.0001, 0011 and 0013.
The Hawes notice goes on to say the following:
3.3 … the inspector during the February 2008 inspection if exercising appropriate care and skill would have observed (if they existed at the time):
(a) any broken conductor strand in situ adjacent to Pole 39; or
(b) any missing section of conductor strand adjacent to Pole 39.[39]
[39]CRT.CAM.521.0001, 0004. I note that the report does not comment on what an asset inspector would or would not have observed.
In relation to reporting codes and priorities for strand defects (which, as I have noted, are not mentioned in the report), the Hawes notice indicated that Mr Hawes would give the following evidence:
3.5 … That detection of a broken strand, or a missing section of strand, should have been recorded by the asset inspector using code 25B with priority P1 (30 days) and telephoned by the inspector to the UAM data support team or SPI network operations centre.[40]
[40]CRT.CAM.521.0001, 0005.
In relation to the reporting of P1 defects, the Hawes notice indicates that Mr Hawes would give evidence that:
3.6 … reporting of the P1 defects listed above, being:
(a) the misaligned helical at Pole 39; or
(b) any broken or missing conductor strand at Pole 39;
should have caused the attendance of a line crew at Pole 39 (whether or not a technical assessment was also done in the interim) within not more than 30 days after receipt of the report…[41]
[41]CRT.CAM.521.0001, 0006.
In relation to non-P1 reports, the Hawes notice indicates that Mr Hawes would give the following evidence:
3.7 Upon receiving the report of the defects the technical assessor should have undertaken an on-site, ground-based technical assessment (assuming no photos were taken by the asset inspector during February 2008).
3.8 … that a technical assessor exercise appropriate skill and care should have:
In relation to Pole 38:
(a)confirmed the “priorities” of the above-listed defects on Pole 38 with not less than the priority codes described; and
(b)taken photographs of the pole-top attachments and conductor and referred the pole for further assessment by the SPI line design engineers, as a pole showing evidence of significant wind-induced vibration damage and a conductor past its safe service life; and
(c)initiated the SPI procedure to ensure attendance by a maintenance crew (equipped with an elevated work platform truck or similar apparatus) (“cherrypicker”) and completion of all necessary remedial works within 90 days after the inspector’s report…
In relation to Pole 39:
(d)confirmed the “priorities” of the above-listed defects on Pole 39 with not less than the priority codes described; and
(e)further observed the following:
(i)significant vertical splitting of the pole near ground-level …;
(ii)apparent elongation of the backstay eye-bolt hole on the east side of Pole 39 …;
(iii)the presence of two mid-span splices.
(f)by reasons of the matters in (d) and (e), taken photographs of the pole-top attachments and conductor and referred the pole for further assessment by the SPI line design engineers, as a pole showing evidence of significant wind-induced vibration damage and a conductor past its safe service life.
(g)initiated the SP AusNet procedures to ensure attendance by a maintenance crew equipped with a cherrypicker and completion of all necessary remedial works within 90 days after the inspector’s report…[42]
[42]CRT.CAM.521.0001, 0006-0007.
I pause here to observe that this is all new material: the report makes no mention of reporting practices and/or the task of technical assessors upon the identification of reportable defects.
In relation to line design engineer or line crew attendance and remedial work, the Hawes notice indicated that Mr Hawes would give the following evidence:
3.9 … that any attendance by a line engineer for further assessment, or line/maintenance crew in response to a work order, initiated by the pole-top defect reports described above would have required attendance with a cherrypicker
3.10 Upon examination from a cherrypicker of the Pole 38 pole-top during 2008 or prior to February 2009, the appropriate maintenance action would have been:
(a) for a maintenance crew – to refer the Valley Span to the SPI line design engineers to consideration whether to replace the Pole 38 pole-top assembly and Valley Span conductor;
(b) for an investigating line engineer – a work order for replacement of Pole 38 pole-top assembly and replacement of the Valley Span, to be completed before the declaration of the fire season for the 2008/2009 summer period.[43]
[43]CRT.CAM.521.0001, 0007.
The notice goes on to detail what a linesman or investigating engineer would have observed upon examination from a cherry picker (namely, the defects identified by Mr Hawes) and then sets out “the appropriate maintenance action in response to” those observations:
3.11 Upon examination from a cherrypicker of the Pole 39 pole-top during 2008 or prior to February 2009:
(a)any exercise of appropriate care and skill by an attending linesman or investigating line engineer would have observed:
(i)each of the pole-top defects referred to …;
(ii)any broken or missing strands …;
(iii)the remnant tie-wire in the groove of the pole-top insulator;
(iv)the mud-staining within the groove of the pole-top insulator;
(v)the presence of two existing splices on the Valley Span.
(b)the appropriate maintenance action in response to the observations in (a) would have been:
(i)if a broken or missing conductor strand was present, or occurred during work – a work order for the high-priority replacement of the whole of Pole 39 and its pole-top assets including the Valley Span conductor (plus the bridging assembly on Pole 38 as described above), possibly with the temporary measure of detaching the existing conductor, removing the helical, cutting out the stranded section and splicing in a replacement section, installing a new helical and reattaching the conductor pending the urgent retrieval from stores of a replacement pole, conductor and pole-top attachments suitable for Pole 39;
(ii)if no broken or missing conductor strand was present or occurred in the course of attendances/work – at a minimum, a rebuild of the Pole 39 poletop assembly including detachment of the conductor, removal of the damaged helical wrap and bridging conductor, replacement of the pole-cap and insulator (because of the inability to rotate the insulator to site coach bolts in solid wood) with a P-bracket assembly, and re-attachment of the conductor with re-siting of a new helical wrap (normally associated with installation of a replacement thimble) prior to the declaration of the fire season for the Kilmore area for the 2008/2009 summer period.[44]
[44]CRT.CAM.521.0001, 0008.
I pause again: this is new and unheralded material. It extends into extraordinary detail that is not mentioned in the report and has never been canvassed with witnesses called by SPI and UAM.
The notice goes on to state that Mr Hawes will give evidence that, upon examination of the Pole 39 pole-top from a cherry picker during 2008 or prior to February 2009, an attending linesman or investigating line engineer would have observed the defects mentioned above. This in turn would have resulted in appropriate maintenance action. It further states that this work:
3.12 … would more likely than not have resulted in the damaged section of the conductor which failed on 7 February 2009 either being:
(a) replaced …; or
(b) or repositioned inside the new helical wrap...[45]
[45]CRT.CAM.521.0001, 0009.
Again, the above content is consistent with the thrust of other parts of the notice, in effect advancing a proposition never put in terms to SPI or UAM witnesses. By contrast, the report makes no mention of the circumstances in which a linesman or investigating line engineer ought to be summoned to attend and conduct further inspection, what they would or should have observed, and what remedial work ought to have followed.
Analysis
I have concluded that Mrs Matthews should not be permitted to adduce evidence based on the Hawes notice for the following reasons.
First, I have been at pains in this case to make it clear to the parties that, as a general rule, experts will not be permitted to go outside the scope of the opinion(s) expressed in their report(s). Otherwise the trial would be in a shambles. As is clear from the summary, the matters contained in the Hawes notice do not simply particularise matters already identified in the report. The evidence that Mrs Matthews now seeks to adduce from him is new and breathtaking in its scope. Indeed, one could easily conclude that Mrs Matthews’ lawyers have assembled the contents of the Hawes notice after reflecting upon the evidence given in the trial to date, with the intention of plugging perceived gaps in Mrs Matthews’ case against both SPI and UAM.
I accept the submission of SPI and UAM that, on a fair reading of the report, Mr Hawes’ instructions, and the original version of his CV, it is clear that Mrs Matthews did not intend for Mr Hawes to opine on asset inspection practices in February 2008 and thereafter. Rather, as I have just said, his expertise was clearly directed to issues concerning asset maintenance and engineering practices. His evidence concerning inspection was essentially limited to what could be seen from ground level. I think that it is abundantly clear, as per his instructions, that he confined his observations of the tops of poles 38 and 39 to general questions of maintenance and the appropriate engineering and maintenance response in the event of any “significant maintenance issues of importance”. He did not opine as to appropriate asset inspection practices, and, particularly, not to those that should have been employed between February 2008 and Black Saturday.
I reject the submission of counsel for Mrs Matthews that the evidence sought to be adduced is necessary to deal with issues raised in Mr Gosden’s report (filed in February 2013). Counsel argued that, as I have discouraged reply reports in the course of this trial, such evidence could only have been adduced in a concurrent evidence session involving Messrs Hawes and Gosden: given that I ruled against a concurrent evidence session for asset inspection, counsel for Mrs Matthews says the lawyers were left with no choice but to file the notice and seek to adduce evidence individually on this point.
There is no substance in this submission. Mr Hawes was provided with Mr Gosden’s report on 6 March 2013.[46] Mrs Matthews could readily have sought leave at that time for Mr Hawes to file a report in reply – as has been done in numerous other instances in this trial. Indeed, Mr Hawes filed a second report on 5 April 2013, responding to a report filed in August 2012 by another expert on the question of vibration. As I have said, I infer from the solicitors’ conduct, including Mr Hawes’ instructions and the terms of the report, that it was not intended at that time for Mr Hawes to opine on the matters now set out in the Hawes notice.
[46]As evidenced by a list setting out all documents provided by Mrs Matthews’ lawyers to her experts: CRT.SPN.084.0001, 0025.
The contents of the notice go far beyond those of the report and consistent with the provisions of R44.05 Mrs Matthews should not be permitted to adduce evidence beyond the limits of the report.
Second, Mrs Matthews seeks to have Mr Hawes opine on a number of matters that are well beyond his engineering expertise, namely, inspection reporting and practice, and the role of a technical assessor in responding to a defect report.I do not accept that Mr Hawes’ expertise extends into the specialised aspects of asset inspection practice (even if one accepts the content of the new CV): There is no basis for concluding that he has the requisite “specialised knowledge” to opine on issues such as allocation of priority codes under the AIM or upon the role of technical assessors.
Third, and this flows from the second point, read together and in contrast to documents already tendered, the Hawes notice and Mr Hawes’ revised CV raises the spectre that Mr Hawes is not truly an expert on these asset inspection issues but an advocate for Mrs Matthews’ case. This is particularly so in his proposed evidence as to the use of technical assessors and a maintenance crew working from a cherry picker. I repeat what I said in Ruling No 38:[47] The importance of the distinction between expert and advocate was first emphasised by Dixon J in Clark v Ryan,[48] a seminal case on opinion evidence,[49] under the common law and later emphasised by Gleeson CJ in HG v The Queen[50] in which his Honour said:
… in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.[51]
[47][2014] VSC 102.
[48](1960) 103 CLR 486.
[49]The High Court held that expert witnesses are not permitted “to attempt to point out to the jury matters which the jury could determine for themselves” and held that in that case, an expert witness had given evidence outside the scope of “expert evidence”: Ibid, 491-2.
[50](1999) 197 CLR 414.
[51]Ibid, 429 [44].
Fourth, significant prejudice will be occasioned to SPI and UAM if Mrs Matthews is permitted to adduce evidence in accordance with the Hawes notice. In particular, UAM and SPI have not had an opportunity to put the matters the subject of the Hawes notice to their witnesses, as required by the rule in Browne v Dunn.[52] These witnesses include, at the very least, Mr McCrohan (SPI’s witness specialising in asset inspection) and Mr Leech (UAM’s asset inspector who inspected the Valley Span in February 2008).
[52](1894) 6 R 67.
At this late stage of the trial, one which has now run for over 180 days, recalling a number of witnesses to satisfy Mrs Matthews’ application would be inimical to the efficient, timely and cost-effective resolution of the dispute, as required by the CPA.
Fifth, there are matters in the Hawes notice that go beyond the case as put by Mrs Matthews’ statement of claim.[53] I set out paragraphs 3.4(b), (e), (g), (k) and (l) of the Hawes notice (extracted below) identifying particular defects which Mr Hawes said should have been observed and reported by an asset inspector in February 2008:
[53]PLE.CAM.001.0001.
On Pole 38:
(b) Pitting of the ties wires and bridging conductor tails on Pole 38 – code 25C priority P2.
…
(e) Corrosion of the conductor in the span, visible from the area around Pole 38 – code 25C priority P2.
On Pole 39:
…
(g) Significant vertical splitting of the pole near ground-level – AI Manual does not appear to permit reporting of splits if surrounding wood is otherwise sound.
…
(k) Pitting of the bridging conductor “tails” on Pole 39 – code 25C priority 2 (compulsory rating nominated by AI Manual).
(l) Corrosion of the conductor in the span, visible from the area around Pole 39 – code 25C priority P2 (compulsory rating nominated by AI Manual, but the condition around Pole 39 less severe than Pole 38).[54]
[54]CRT.CAM.521.0001, 0004-5. The parts of the Hawes notice referred to above beginning at [46] are very similar but, whereas this extract is a direct quote from the Hawes notice, the earlier references compile and paraphrase more than one reference.
These go well beyond Mrs Matthews’ pleaded case. I set out the particulars of breach against SPI attached to paragraph 19 (dated 4 October 2013) of Mrs Matthews’ statement of claim as follows:
(xii-c) if JL had received appropriate pole-top inspection training as described in “b” “xii-b” above, JL during the February 2008 inspection would have detected and reported, as maintenance items, some or all of the following:
(i)the fact that one strand of the conductor had broken immediately adjacent to the helical wrap on Pole 39;
(ii)the fact that a significant split in the wood of Pole 39 extended from the pole-top down into or very near the strain assembly bolt-hole;
(iii)the fact that the Pole 39 strain assembly bolt-hole appeared elongated;
(iv)the fact that there was an incorrect configuration of the helical wrap in the thimble on Pole 39;
(v)the fact that there was significant visible “mud-staining” on the Pole 38 pin insulator;
(vi)the fact that there were loose or missing coach bolts on Pole 39 and that the Pole 39 pole cap was loose; and …[55]
[55]PLE.CAM.014.0001, 0007-0008.
I have at various times, in pre-trial directions and throughout the course of the trial, emphasised to the parties that I will not entertain the adducing of any evidence that goes beyond a party’s pleaded case.
In summary, for the reasons I have set out, it is inimical to the interests of justice to permit Mrs Matthews to rely upon the contents of the Hawes notice.
Conclusion
No part of the report will be excluded. However, Mrs Matthews will not be permitted to adduce evidence from Mr Hawes as outlined in the Hawes notice.
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
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