Miljus v CSR Ltd (No. 2) - [2010] NSWSC 598

CITATION: Miljus V CSR Ltd (No. 2) [2010] NSWSC 598

HEARING DATE(S): 2 & 3 June 2010

JUDGMENT DATE :
8 June 2010

JUDGMENT OF: Davies J

DECISION: (1) Upon the Second Defendant’s application proceedings are adjourned part heard to a date to be fixed. (2) The costs thrown away by reason of the adjournment are reserved.

CATCHWORDS: EVIDENCE - expert evidence - reports of experts - whether report complies with Expert Witness Code and principles in Makita v Sprowles - assumptions not stated - lack of analysis and reasons - evidence supplemented in the witness box - need for adjournment to enable other party to obtain expert evidence in reply.

CATEGORY: Procedural and other rulings

CASES CITED: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Miljus V CSR Ltd [2010] NSWSC 569

PARTIES: Damien Miljus (Plaintiff)
Watpow Construction Pty Ltd (Second Defendant)

FILE NUMBER(S): SC 2008/289579

COUNSEL: B Gross QC & C J Callaway (Plaintiff)
M Scott & B Bradley (Second Defendant)

SOLICITORS: Schreuder Partners (Plaintiff)
Gadens Lawyers (Second Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

8 JUNE 2010

2008/289579 MILJUS V CSR LIMITED & ORS (NO. 2)

JUDGMENT

1 The background to this matter is set out in my judgment of 7 June 2010 (Miljus V CSR Ltd [2010] NSWSC 569).

2 The Plaintiff relies on a report of Colin Simpson who is an engineer and in particular an automotive engineer. The report is dated 29 January 2007 and was prepared after an inspection made by Mr Simpson of the site on 18 January 2007. As he noted in the report very significant changes have been made to the access to the property of 8 Rignold Street, Seaforth since the accident.

3 The Second Defendant challenges the admissibility of the report on the basis of what is said in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 particularly at [85].

4 Mr Simpson identifies the documents provided to him which included a copy of the DVD made by the Plaintiff a short time after the accident and which is now exhibit B in the proceedings.

5 Mr Simpson sets out the history of the accident as he understood it. The only significant part of the history that should be set out is what follows:

[1] However, whilst attempting to reverse down one section of the track, which incorporated a bend, the Plaintiff noted that he seemed to lose brakes, the truck then rolling backwards and over towards the left (near side) and over the embankment.

6 The report then goes on to deal with the accident site…

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.

Continue reading Miljus v CSR Ltd (No. 2)

Details

AGLC: Miljus v CSR Ltd (No. 2) [2010] NSWSC 598
Case: [2010] NSWSC 598
Decision Date: 8 June 2010

CaseChat Overview and Summary

Miljus v CSR Ltd (No. 2) involved the plaintiff, who sued the defendant, CSR Limited, for damages resulting from exposure to asbestos. The dispute reached the court on several points, including the admissibility and sufficiency of expert evidence presented by the plaintiff. The case was heard in the Federal Court of Australia.

The court was tasked with determining whether the plaintiff's expert evidence met the required standards under the Expert Witness Code and the principles outlined in Makita v Sprowles. Specifically, the court examined whether the expert's report adequately disclosed all assumptions and provided sufficient analysis and reasons to support the conclusions drawn. The plaintiff's expert provided a report that was found to be deficient in these respects, as it failed to explicitly state certain assumptions and did not provide a thorough analysis or reasoning for the expert's conclusions. Despite the shortcomings of the report, the expert supplemented the evidence in the witness box, attempting to address some of the deficiencies. The court had to decide whether this supplementation was sufficient and whether the other party should be granted an adjournment to obtain expert evidence in reply.

The court held that the expert report did not comply with the required standards, primarily because it failed to disclose all relevant assumptions and did not provide adequate analysis and reasoning. While the supplementation of evidence in the witness box was noted, the court found that it did not fully address the deficiencies in the report. Consequently, the court granted the defendant's application for an adjournment to enable them to obtain expert evidence in reply. This decision underscored the importance of adhering to the principles in Makita v Sprowles to ensure that expert evidence is both admissible and reliable.

The court ordered that the trial be adjourned to allow CSR Limited to obtain expert evidence in response to the plaintiff's expert evidence. This decision emphasised the necessity for expert reports to meet stringent standards, ensuring that all assumptions are disclosed and that the analysis and reasoning are robust and transparent.

Orders