Parrish v Specialized Australia Pty Ltd (Rulings)
[2020] VSC 15
•6 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 02034
| FRANK PARRISH | Plaintiff |
| v | |
| SPECIALIZED AUSTRALIA PTY LTD (ACN 166 166 874) | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 28 – 29 January 2020 |
DATE OF RULINGS: | 28 – 29 January 2020 (Reasons: 6 February 2020) |
CASE MAY BE CITED AS: | Parrish v Specialized Australia Pty Ltd (Rulings) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 15 |
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EVIDENCE – Expert opinion – Admissibility – No point of principle – Whether opinion relevant - Application of expertise rule – Application of statement of reasoning rule – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.
EVIDENCE – View – No point of principle – Discretionary considerations – Evidence Act 2008 (Vic) s 53.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M D Wilson QC with Ms J Cowen | Slater & Gordon |
| For the Defendant | Ms M Britbart QC with Mr D C Oldfield | Thomson Geer |
HIS HONOUR:
The plaintiff seeks damages for personal injury and consequent economic loss suffered by reason of a fall from his bicycle on 26 April 2015 that he contends was caused by the negligence of the defendant, or alternatively, by conduct in breach of the Australian Consumer Law.
The trial has been split with liability to be determined by a jury and, if necessary, the quantum of the plaintiff’s damages to be assessed by the judge. Prior to jury empanelment, the parties sought a number of evidentiary rulings. The defendant contended that a view would be appropriate. The parties also sought a number of rulings in relation to the admissibility of expert evidence.
View
In this proceeding, the defendant applied for the jury to be taken on a view of the road where the incident occurred. The relevant section of road is a considerable distance from the courthouse and would involve more than two hours' travel in each direction and would likely take a whole day of the trial.
The plaintiff opposed a view arguing it is unnecessary. He points to photos taken the day after the incident by a witness who arrived at the scene of the incident very shortly after it occurred and while the plaintiff was still present. There are other photos of the site, including those taken by experts during the course of site visits.
The defendant contended a view would significantly assist for the jury to resolve issues of fact or to better understand the evidence about precisely how the accident occurred, particularly in relation to the gradient of the approach to the precise point of the road where the incident happened. That was because all of the factors that contributed precisely to the happening of the incident will be in contest, including the speed at which the plaintiff was travelling and the plaintiff's opportunity to make observations about the circumstances of the incident immediately prior to its occurrence.
The manner in which the interference to the plaintiff's front wheel occurred is in contest - whether that was as a result of materials failure in his bicycle or interference from an external object such as a stick or branch becoming caught in the wheel. Observations about the presence of sticks or branches in the vicinity of the road now will not be of any consequence, but it is not suggested by the parties that this is the critical purpose for an inspection.
Whether a view is ordered is a matter which under section 53(1) of the Evidence Act2008 (Vic) is in my discretion.
I am satisfied that if a view were ordered, both the parties and the jury would be present for that view. Taking into account the relevant matters that are identified in section 53(3) of the Act, the critical consideration is whether the view will, in the court's opinion, assist the court in resolving issues of fact or in understanding the evidence.
One relevant matter is the period of time that has elapsed between the accident and the trial of the proceeding. In the four years and nine months since the incident occurred, the place to be inspected may have materially altered. However, the defendant submitted that there was no material alteration in the place of the incident. This assertion was not contested by the plaintiff.
I am required to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[1] I am mindful of the costs and delay occasioned by taking a day out of the trial to conduct this inspection. I must be satisfied that it will be a useful and helpful activity.
[1]Civil Procedure Act 2010 (Vic) s 7.
Bearing all of these considerations in mind, and in particular the opportunity for the use of photographs and similar material, I am not satisfied that it is appropriate for the jury to conduct a view at this point in time. The benefits to be gained from a view do not outweigh the disadvantages, both in terms of time taken and the inconvenience of the jury having to travel so far for the purposes of observing a gradient. It can, I think, be expected that the jury will have an understanding of the nature of roads of the type that are indicated in the photographs and of the fact that there will be gradients in such roads, and no doubt the nature of that gradient can be explained and stressed by witnesses. It may be accepted by the plaintiff in evidence.
I would reserve liberty to the defendant to apply again at a later stage if it appears from the course of cross-examination that the views that I have taken at this stage are not appropriate.
Nevertheless, on the basis of the material that is presently before me, I am not of that mind, and I think that the evidence about the occurrence of the incident is likely to be fairly comprehended without a view.
Expert evidence
On 29 January 2020, I ruled on each of the applications about the admissibility of expert evidence, stating that I would in due course publish my reasons for those rulings.
I ruled that the evidence of Dr Shane Richardson was inadmissible.
I ruled that the evidence of the plaintiff, expressing expert opinion the substance of which is disclosed by an Order 44 statement dated 20 February 2019, was inadmissible.
I granted the plaintiff leave to rely on an additional report prepared by Mr Raoul Luescher dated 27 January 2020 in which he expanded on an observation made in an earlier report relating to quality control standards in the manufacture of the plaintiff’s bike.
I mostly rejected the defendant’s objections taken to the report of Mr Luescher dated 20 December 2018 in paragraphs 9, 14‑18 (inclusive) and 22 in the body of the report and paragraph 4 and part of paragraph 5 in the summary.
Principles
The relevant parts of the Evidence Act, beginning with s 55, state:
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.
Section 56 states:
Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
If evidence is relevant but is evidence of an opinion, the exclusionary rule in s 76 provides:
The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 79(1) provides an exception to that exclusionary rule.
Exception–opinions based on specialised knowledge
If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In Dasreef v Hawchar,[2] the majority stated that when considering opinion evidence, admissibility is to be determined by application of the requirements of the Evidence Act and a two-stage inquiry is required.[3] The first inquiry is why the evidence is relevant. As the majority observed:[4]
Section 76(1)[5] expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact” …. the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding, which the tendering party will ask the tribunal of fact to make. 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 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". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
[2](2011) 243 CLR 588.
[3]Ibid 604 [37].
[4]Ibid 602 [31].
[5]Of the Evidence Act 1995 (NSW), cf. s 76 of the Evidence Act 2008 (Vic).
If relevance is established, at the second stage of the inquiry, admissible evidence must satisfy two criteria. The witness must have ‘specialised knowledge based on the person's training, study or experience’. The opinion expressed in evidence by the witness must be ‘wholly or substantially based on that knowledge’. It is ordinarily the case, as Heydon JA said in Makita (Australia) Pty Ltd v Sprowles,[6] that ‘the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded’.
[6](2001) 52 NSWLR 705, 743 [85], approved in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 604 [37].
In a separate judgment in Dasreef,[7] Heydon J considered the contentions put that the text of s 79 of the Evidence Act rendered the rules developed at common law concerning the admissibility of expert evidence to no longer be useful. Rejecting that contention, in summary, Heydon J explained that the matters that will usually be considered at the second stage of the inquiry - whether the exception under s 79(1) renders opinion evidence admissible - may conveniently be referred to as four ‘rules’ (one of which is in three parts). They are:
[7]Above n 2, 608.
(a) is the opinion relevant (or of sufficient probative value[8]);
[8]Bearing in mind the discretion under s 135 of the Evidence Act 2008 (Vic).
(b) has the witness properly based 'specialised knowledge' (the expertise rule);
(c) is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule); and
(d) is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):
(i) are the ‘facts’ and ‘assumptions’ on which the expert's opinion is founded disclosed;
(ii) is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
(iii) is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule)?[9]
[9]See also the summary list of considerations identified by Austin J in ASIC v Rich [2005] NSWSC 149 [256].
Failure by the party tendering expert opinion evidence to comply with the factual basis rules makes that opinion evidence irrelevant. The tendering party must identify and prove, or at least foreshadow the proof of, the facts relied on by the expert to an extent sufficient to persuade the court that the evidence of opinion is relevant under s 55 of the Act. The tendering party must identify the fact in issue in the proceeding, the probability of which may be rationally affected by the opinion evidence. If the opinion is irrelevant or lack sufficient probative value, it is inadmissible.
Dr Shane Richardson
The plaintiff retained Dr Shane Richardson as an expert. His curriculum vitae describes him as the Principal Forensic Engineer and Managing Director/Owner of Delta V Experts. Dr Richardson has a number of tertiary qualifications, including a Bachelor of Engineering, a Master of Science and a Doctor of Philosophy in civil engineering. The plaintiff has served on the defendant four expert reports authored by Dr Richardson between November 2017 and December 2019, which seek to provide an assessment of matters going to the cause of accident.
Dr Richardson’s evidence, as disclosed in his various reports, is inadmissible on at least two grounds.
First, while Dr Richardson has specialised knowledge and is clearly able to give, and has on many occasions given, expert evidence, I am not satisfied that the opinions that he will propound to the jury are wholly or substantially based upon his expertise as revealed by his curriculum vitae. In other words, he cannot satisfy the expertise rule.
Secondly, I am not persuaded that his reports contain a statement of his reasoning that demonstrates how the ‘facts’ and ‘assumptions’ relate to the opinions he expresses to reveal that his opinions are based on his specialised knowledge. In other words, he cannot satisfy the statement of reasoning rule.
Omitting the repetition of uncontested fact or factual assumptions being made that Dr Richardson has set out as part of his opinion, Dr Richardson’s initial opinion was that:
(a)based on the age and distance ridden, the failure most likely occurred due to a manufacturing defect, which adversely (and catastrophically) limited the useful life of the bicycle;
(b)the front forks on the subject bicycle were defective as they were not able to withstand reasonable compression force;
(c)the conditions Dr Parrish has described in undertaking his journey along Junction Creek Road were not excessive or unreasonable and the expectation of failure under the prescribed conditions should not have warranted an anticipation of catastrophic failure.
Dr Richardson’s first report was dated 23 November 2017. On 23 March 2018 he provided a revised report. The revisions were not marked-up, but I was informed by counsel that they solely related to his certification of compliance with the Expert Witness Code of Conduct.
On 17 September 2018, Dr Richardson, in a supplementary report, was asked by the plaintiff’s solicitors to consider a report authored by Mr Raoul Luescher (another expert retained by the plaintiff) dated 4 December 2018 and then answer a number of questions they posed. Dr Richardson’s supplementary opinion was, in summary, that it was most unlikely that the failure of the bicycle’s front fork was caused by a stick that became trapped in the spokes of the front wheel. Rather, based on the flaws identified by Mr Luescher after examining the carbon fibre fork, failure was most likely due to a manufacturing defect or defects that caused stress concentrations within the fork blade on one or both sides and resulted in premature failure of the fork, causing the plaintiff to crash.
The plaintiff also relies on notes of a conference between Dr Richardson and the plaintiff’s counsel on 18 March 2019. Relevantly, those notes record the witness’ opinion that:
If there is a catastrophic failure of a fork blade or both blades, then the front wheel is no longer held rigid by the fork. This would cause the front wheel to twist or rotate to the side and collapse down and if one fork was initially affected it would have a torsional effect on the other fork (damaging it also), but would not necessarily stop the front wheel in the same manner as if a stick was caught in the front wheel (ie an abrupt block/stop of the front wheel). The rider will fall downwards or to the side as the front wheel collapses.
The defendant attacked Dr Richardson’s qualifications, but to assess whether his qualifications were apposite I must identify what opinion was actually expressed. The evidence likely fails the expertise rule, but it is unnecessary to analyse this submission.
The primary reason for rejecting Dr Richardson’s evidence is that there is no adequate path of reasoning supporting the proposition that the fork failed due to a ‘likely manufacturing defect’. The likely manufacturing defect in contemplation is not identified and Dr Richardson does not reason from an identified defect to a mechanism for failure of the blades of the fork.
Rather, he reasons by reference to the manner in which the predicted failure rate of products can be described by a Bathtub or Weibull curve. Having briefly explained what that is (by reference to a blog at a website named ‘reliabilityanalytics.com’ and with some generic statements attributed to ‘Jiang, R (2015) “Introduction to Quality and Reliability Engineering”’), then without any reference to carbon fibre product failure behaviour or any analysis of the applicability of ‘a typical bathtub curve’ to carbon fibre product, Dr Richardson opines that ‘based on the provided and aforementioned information’, it is his opinion that the subject bicycle had undergone an early failure. It was not in contest that the bicycle had been supplied about a month earlier and had travelled some 1500 kilometres. Early failure was an obvious fact.
Dr Richardson placed the fact of failure at the ‘quality failure’ end of the bathtub shaped curve on a graph of ‘hazard rate’ versus ‘time’. This is a position on the curve where the ‘hazard rate’ is high. It is not possible to identify the steps by which Dr Richardson initially reasoned to this conclusion and, as a result, the jury will be unable to evaluate his opinion to assess its validity and reliability. Alternatively, the apparent steps could not show how that opinion was based on his specialised knowledge.
Although Dr Richardson was shown Mr Luescher’s first report of 4 June 2015, Mr Luescher did not identify a manufacturing defect in this report. Rather, he reported on visual damage and suggested that non-destructive testing may not find typical manufacturing defects, due to the extensive delamination at the point of failure.
Dr Richardson did not himself identify any manufacturing defect, nor explain any possible mechanism of failure of the forks by reference to a manufacturing defect. Without further analysis or reasoning, Dr Richardson then opined that the forks were defective as they were not able to withstand a reasonable compression force. No quantitative analysis was offered. This conclusion appears to be drawn from Dr Richardson’s opinion that the conditions preceding the incident could not be described as excessive or unreasonable, leading him to state that, in his opinion, the front forks of the bicycle should have been capable of carrying the plaintiff.
Presumably, this means that a ‘reasonable compression force’ is the force to which the fork was subject in the conditions prevailing on the ride prior to the failure, whatever that force might be. Self-evidently, the fork was capable of carrying the plaintiff in the conditions preceding the incident. The report does not identify when the compression force varied or when the consequences of unreasonable compression forces became manifest with an explanation drawn from specialised skill, knowledge or experience applied to the mechanism of the failure. Again, the steps in this reasoning process, if that be what it was, are unclear. What emerges is Dr Richardson’s failure to satisfy the statement of reasoning rule.
It is unfair and inappropriate in proper cross-examination to expect a party to challenge this lack of reasoning in the report and risk thereby drawing out some statement of reasoning of which the party has no notice. The law has consistently insisted that the expert show how the ‘facts’ and ‘assumptions’ provided to the expert relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge.[10]
[10]See above n 2 and 6; HG v R (1999) 197 CLR 414; ASIC v Rich [2005] NSWCA 152.
Throughout this ‘analysis’, Dr Richardson in no way reveals how he used any aspect of his ‘expertise’ or his specialised knowledge as described in his curriculum vitae to reach the stated conclusions. It is not necessary to carefully examine his expertise in order to be satisfied that the opinion evidence is inadmissible. However, I will briefly record that, in my view, Dr Richardson’s curriculum vitae did not demonstrate that he had any relevant expertise. Dr Richardson made no effort to identify the relevant part of a broad and extensive curriculum vitae. I do not mean to imply that Dr Richardson does not appear to be a highly qualified mechanical engineer with extensive knowledge in relation to vehicle collisions and failure. What cannot be teased out of this substantial document, however, is any skill, knowledge or experience in manufacturing processes using carbon fibre or in materials failure in bicycles. That proposition could not be contradicted by identifying that the word ‘bicycle’ had been used on numerous occasions throughout the curriculum vitae.
Next, in a supplementary report of December 2018, Dr Richardson purported to answer a number of questions. The first question sought a calculation of the force required to fracture both forks in the reported manner, assuming the bicycle forks were manufactured without fault. Dr Richardson stated that a calculation was not possible without further information that was neither sought nor provided. His evidence in response to that question cannot be admitted. It is irrelevant.
Secondly, he was asked a number of questions based upon accepting Mr Luescher’s findings from ultrasound testing. The first question asked whether the force required to fracture the forks would vary from his answer to the previous question. Bearing in mind that he couldn’t answer the previous question, Dr Richardson responded that less force would be required but gave no reasoning for that conclusion. Dr Richardson again stated that the degree of reduction in the force required depended upon matters about which he did not have instructions.
Dr Richardson was questioned about the force needed to damage the spoke. Noting that the tensile strength of the spoke was not known to him, but without seeking to discover that fact before proceeding, Dr Richardson made assumptions to conclude that a force of approximately 250 newtons was applied to bend the spoke. This opinion is irrelevant unless there will be evidence that the assumptions upon which it is based will be established at trial. I received no assurance that that would occur.
Dr Richardson was asked whether the manufacturing flaws identified by Mr Luescher comprised the structural integrity of the fork, in any and what way. Dr Richardson’s opinion was that those flaws introduced one or more stress concentrations within the structure of the fork that would compromise its structural integrity to an unknown extent, which was only capable of definition by reference to information that he did not possess or require.
Dr Richardson was invited to express an opinion about the stick at the centre of the defendant’s case theory. Dr Richardson’s response was evasive. He considered the question to be without factual basis because the physical post-crash evidence did not support the contention that the crash was caused by a stick. In particular, Dr Richardson opined, as an ipse dixit arrived at in the absence of testing and experimentation, that if there was a stick involved, there would necessarily have been evidence of multiple spoke failure. Accordingly, Dr Richardson dismissed the theory that the failure of the fork was caused by a stick and, without adding any independent reasoning, supported Mr Luescher’s conclusion that stress concentrations within the fork were caused by a manufacturing defect. This opinion was not supported by a proper statement of reasoning. The fact that Dr Richardson thought Mr Luescher’s view appropriate is not a sufficient statement of reasoning.
Dr Richardson produced a further report on 2 December 2019, following discovery by the defendant of x-rays of the front fork taken at the time of manufacture. The questions addressed by the further report were directed to analysing the consequences of areas of voids and porosity that had been identified in the fork’s carbon fibre structure. Again, Dr Richardson’s report simply expresses an ipse dixit, unsupported by a process of reasoning from Mr Luescher’s interpretation of the x‑rays, to a conclusion that the voids would create both a stress concentration and ‘non‑homogenous matrix’ that would compromise the structural integrity of the fork. For the reasons already stated, this opinion cannot be admitted.
Further, to the extent that Dr Richardson purports to add apparent weight to Mr Luescher’s findings, his complete lack of expertise and experience in relation to carbon fibre materials or materials engineering of the relevant type provides a probable explanation for his inability to set out a transparent path of reasoning in respect of such conclusions.
Finally, the further opinion advanced by Dr Richardson in the notes of the conference on 18 March 2019 was not the subject of any report and is subject to the same limitations as other opinions this witness has expressed, namely non-compliance with the statement of reasoning rule. Dr Richardson has not explained any opinion about the manner in which the blades of the fork would lose strength by reason of the materials failure. He was unclear in what precise manner the stability of the front wheel axle would be affected. Without a more precise analysis, and a clear statement of reasoning, the conclusion reached by Dr Richardson becomes a matter of speculation rather than analysis.
Further, Dr Richardson’s opinion, as expressed in the conference note, concludes that the consequence would be that the rider would ‘fall downwards or to the side as the front wheel collapses’. This appears to be a rather trite conclusion that the rider will fall off the bicycle onto the road. A jury will not require the assistance of an expert to reach that conclusion in the circumstances. To the extent that it might be contended that Dr Richardson was seeking to provide a more specific explanation of how the rider might come into contact with the road, he has failed to make that clear. Further, his curriculum vitae gives no indication that he possesses requisite skill, knowledge or experience to undertake such an analysis and express that opinion.
For the foregoing reasons, the whole of the evidence sought to be adduced by the plaintiff from Dr Richardson is inadmissible.
Plaintiff as expert
The next issue is whether the plaintiff could give part of the evidence particularised by his statement of expert evidence pursuant to Order 44. This evidence is irrelevant and is inadmissible for that reason.[11]
[11]Evidence Act 2008 (Vic) s 56(2).
The plaintiff, Dr Parrish, is a doctor specialising in radiology with qualifications in medicine. In his Order 44 statement, he provides an opinion on the mechanism of his fall from the bicycle from an assessment of medical investigation of the injuries that he sustained.
The proper approach to identifying the relevance of expert evidence was identified by the majority in Dasreef, as discussed above.[12] At the first stage inquiry, the plaintiff contended that Dr Parrish’s evidence, if accepted, could rationally affect the assessment of the probability of facts in issue about the mechanism of failure of the fork.
[12][23]–[25] above.
The defendant developed a number of contentions supporting its objection to this evidence, but the admissibility inquiry fails at the first stage.
The key question is to identify the finding that the plaintiff will ask the jury to make. In substance, the plaintiff will contend that the extensive nature of the injuries he sustained established that he experienced extreme axial loading to his skull and spine, followed by a degree of forced flexion. For the purposes of the submission, I assumed, contrary to submissions put by the defendant, that the plaintiff was qualified to undertake that analysis and that his particular conclusions constituted opinion, drawn from the facts and assumptions set out in his statement, that were based on his specialist expertise as a radiologist. I further assumed that the plaintiff’s conclusions about the forced loading and flexion applied to his spine supported his opinion that when he was ejected from his bicycle, there was direct rotational acceleration into the tarmac with an abrupt halt and subsequent forced flexion.
The plaintiff will ask the jury to infer from such conclusions that the plaintiff was not ejected over the handlebars when the rotation of the front wheel of the bicycle suddenly ceased. Rather, he was driven head first into the tarmac when the front fork collapsed.
That inference would require a basis in fact for the jury to draw conclusions about the propulsion and movement of the plaintiff’s body over the time from when the incident commenced until he landed on the tarmac. The expert evidence to be advanced by both the plaintiff and the defendant did not address this aspect of the incident. Although the plaintiff, in his Order 44 statement, postulated two different scenarios about this issue, the plaintiff accepted that there was no evidence supporting one theory or the other about how he landed on the tarmac.
The evidence was directed either at the plaintiff’s theory that manufacturing fault resulted in the failure of the blades of the fork, probably causing him to be ejected from the bicycle onto the tarmac, or the defendant’s theory that a ‘stick’ or other foreign object became trapped in the spokes of the wheel causing sudden breaking that ejected him from the bicycle onto the tarmac in a particular way.
In the absence of an analysis of the biomechanics and the forces that would have been generated in these scenarios, including the changes to the manner in which the wheel of the bicycle would have performed, the plaintiff’s opinion, drawn from his analysis of the medical investigations into his injuries about the forces applied to his body, cannot rationally affect the assessment of the probability of either of those theories.
I am not persuaded that the plaintiff’s opinions about the way that he landed on the road, drawn from a specialist analysis of the medical investigation of his injuries, can rationally affect the assessment of the probability of the cause of his fall from the bicycle as developed in the evidence of other expert witnesses.
Accordingly, Dr Parrish’s evidence is irrelevant and is inadmissible.
Mr Raoul Luescher
Admissibility following service of supplementary report
Mr Raoul Luescher is an expert retained by the plaintiff. Mr Luescher is a consultant in the cycling industry with expertise in bicycle design and failure analysis, including, in particular carbon fibre bicycles. The plaintiff has served on the defendant five expert reports authored by Mr Luescher between June 2015 and January 2020.
The fifth report prepared by Mr Luescher, dated 27 January 2020, was served on that day, a public holiday and the day before the commencement of the trial. In the report, Mr Luescher developed an observation made in an earlier report relating to quality control standards in the manufacture of the plaintiff’s bicycle. He made specific comment on an English translation of the Chinese language standard operating procedure document, in the context of x-rays that have been discovered of the front fork of the plaintiff’s bicycle at the time of its manufacture.
Being short served, the supplementary report has not been served as required by r 44.03(1)(b). In default of service in accordance with the Rules, r 44.03(3)(b) provides that the plaintiff is unable to rely on either the supplementary report or earlier reports without the leave of the court.
The plaintiff submitted that the need to have this document translated explained the delay in arranging for experts to analyse its implications. The document, originally discovered by the defendant in November 2019, was in Chinese. Mr Luescher’s evidence in respect of this document is relevant to the plaintiff’s claim that a duty of care was breached by the defendant.
The defendant objected that the formalities had not been complied with, the opinions expressed were at an unhelpful level of generality and that Mr Luescher lacked appropriate expertise to express the opinions.
Any issues of prejudice to the defendant through late service, and none are presently suggested, can be dealt with if raised as the trial proceeds. I see no reason why the defendant’s experts cannot consider this supplementary report and respond promptly or any reason why the plaintiff cannot immediately deal with that response.
Secondly, I am satisfied that Mr Luescher has expertise to express these opinions. Whether that knowledge and expertise is limited to an extent that affects the reliability of his opinions is a matter for cross-examination. For admissibility purposes, I am satisfied that the expertise rule and the expertise basis rule will not be offended. The substance of Mr Luescher’s evidence concerning the operating standards for manufacturers of carbon fibre bicycles is, for the purposes of considering the admissibility of his evidence, adequately defined by his report.
Accordingly, I grant leave to the plaintiff to rely on all of Mr Luescher’s reports.
Particular objections
That leaves the question of particular objection to passages in Mr Luescher’s evidence. These passages are to be found in his report of 20 December 2018.
Subject to a concession, I reject the objections taken by the defendant to paragraphs 9, 14‑18 (inclusive) and 22 of the body of the report, and paragraph 4 and part of paragraph 5 in the summary. The plaintiff states that he does not propose to lead evidence contained in paragraph 22, and that paragraph 4 of the summary should be read as if the words ‘it is unanimously agreed that’ are deleted.
I accept the defendant’s submission that the final sentence in paragraph 5 of the summary should also be deleted and evidence to that affect should not be led from the witness.
Mr Luescher has specifically relevant expertise including in non‑destructive testing of advanced composite structures (ultrasonics, radiography, thermography), fabrication methods of bicycles and parts, testing methods of bicycle and parts, evaluation of bicycle failures, repair of composite bicycles and presentation of technical information.
Mr Luescher was the lead designer in the technical development of Malvern Star brand of carbon bicycles and more recently was the technical lead for the BC brand Tammar series composite bicycle rims. He has assessed and or repaired over 5,000 composite bicycles and provided damage assessment and reporting for insurance companies. He has given evidence as an expert witness in relation to bicycle design and bicycle failure. Mr Luescher’s training and education include an Associate Diploma of Mechanic Engineering and diplomas in relation to non-destructive testing. He was previously employed as an aerospace technician for Boeing Hawker de Havilland, where he gained experience in aerospace quality control procedures and in drafting quality assurance techniques and procedures.
The defendant objected in relation to paragraph 9 of the report, concerning the damaged spoke, on the basis that that the opinions were expressed at an inappropriate level of generality when measuring and testing could have been undertaken.
In paragraphs 14 to 18 (inclusive), Mr Luescher identifies, for comparative purposes, his examination of other forks that have come into his possession. The defendant has objected to this evidence on the basis of relevance.
I am not persuaded that the comparisons are of no relevance, nor do I consider that the opinion expressed in paragraph 9 is so general that I should regard it as inadmissible. Each of these matters can, if thought appropriate, be pursued in cross-examination.
The defendant also objects to paragraph 18 of the report, where Mr Luescher opines that it is well documented within composite material engineering literature that flaws such as porosity, voids and wrinkles significantly reduce the mechanical properties of the material. The defendant asserts that the full literature search has not been provided and that there is no general academic discussion about the nature of porosity, voids and wrinkles and how such manufacturing features reduce the mechanical properties of a carbon fibre object. I am not persuaded that these statements are too general to be of assistance and I do not accept the submission that such statements are not based on any sort of expertise possessed by the witness.
The defendant’s objections to two paragraphs in Mr Luescher’s summary was resolved by the plaintiff’s concession to remove certain words and by deleting the final sentence of paragraph 5, as directed above.
Mode of trial
Following delivery of these rulings, I proposed empanelling a jury the following morning, 30 January 2020. At that time, the defendant applied that a jury be dispensed with and that the trial proceed by judge alone. It is unnecessary to set out the contentions in support of this proposition, as the plaintiff announced that he consented to the application. Accordingly, I ordered that the trial proceed by judge alone.
Finally, I record that by reason of an earlier case management direction made by the court, the trial had been split, with the issues of liability to be determined by a jury and the issue of quantum to be determined by the judge, if necessary. The basis for this direction was the differing statutory regimes that applied to the assessment of personal injury damages in negligence and for breach of provisions of the Australian Consumer Law.
The parties sought to maintain this position, although to avoid possible difficulties later in the trial, I directed that the plaintiff is to give his evidence, and be cross-examined, on all issues, rather than be called a second time. The evidence of all other witnesses on the issue of quantum will be taken, if needed, after judgment is delivered on the issues of liability.
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