Sprowles v Makita (Australia) Pty Limited

[2002] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S242 of 2001

B e t w e e n -

VICKI JANE SPROWLES

Applicant

and

MAKITA (AUSTRALIA) PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 MAY 2002, AT 2.04 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with my learned friend, MR H.W.H. BAUER, for the applicant.  (instructed by Shephard & Shephard)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR P.M. MORRIS, for the respondent.  (instructed by Moray & Agnew).

GLEESON CJ:   Mr Gross.

MR GROSS:   Your Honours, the Court of Appeal judgment has become somewhat of a primer in New South Wales courts for dealing with expert evidence and has created real difficulties for experts and legal representatives seeking to use expert reports.  It involved, as your Honours will see, appellate rejection on the basis of lack of validity and reliability of an expert scientific report by a distinguished professor of applied physics which was not only admitted without objection as to its admissibility and with concessions as to his expertise in the field, but where there was no contrary expert called by the other party, where the bases for ultimate rejection by the Court of Appeal were neither explored in cross‑examination nor, to a large extent, raised for consideration by the trial judge.

Your Honours, there are two aspects of the proposed appeal.  One relates to the use made of what was said to be a prior history of no other injuries or incidents or complaints and, secondly, in ‑ ‑ ‑

GLEESON CJ:   Just before you go any further, if we were to grant special leave to appeal, what we would be doing would be reviewing the Court of Appeal’s factual finding in relation to the expert and other evidence.  We presumably would not be reviewing the statement of principles about expert evidence.

MR GROSS:   With respect, there are questions of principle which I will identify.

GLEESON CJ:   Why?

MR GROSS:   Could I move to that, if I may?

GLEESON CJ:   Yes.

MR GROSS:   The core principle expounded by Justice Heydon and adopted by Justice Powell and perhaps, implicitly, by Justice Priestley who did not address the matter, was that it is necessary for an expert to identify, reveal and demonstrate the factual and intellectual bases of his opinion and fully expose and explain the processes of reasoning relied upon.

Now, your Honours, Justice Heydon took this principle to require a number of features in the expert evidence which go well beyond earlier statements of principle and certainly beyond existing practice in New South Wales courts.  Firstly, Justice Heydon required that written publications, in this case the Australian and British Standards, mentioned by the expert, he said, “must be annexed or exhibited or else in evidence so that its context and reasoning can be assessed.”  On the same subject, Justice Powell held that because the Australian Standards and the British Standards were not in evidence it was “not possible to know whether what Professor Morton wrote in his report” concerning them was accurate, complete or valid.

Just on that aspect, the Australia Standards and the British Standards were mentioned by Professor Morton, however, were treated as being largely irrelevant and we submit that it was error to actually require him, or the party calling him, to put those documents into evidence.

GLEESON CJ:   Where do we find the professor’s report?

MR GROSS:   It would have been convenient – it is not in the book.  It is not in the book, as such, although we will find the relevant extracts at pages 101 to 103 of the ‑ ‑ ‑

GLEESON CJ:   That is my problem.  I know that we can see some – we have read some extracts from it.

MR GROSS:   Yes.

GLEESON CJ:   We just do not have the report.

MR GROSS:   No, we just do not have the report on the basis that – I suppose we took the view that expert evidence or the actual evidence at trial and appeal level should not be replicated in the book.  However, your Honours, the first matter we identify is that two judges basically say that to give effect to the principle described you actually have to put those materials into evidence so that the Court can judge whether or not the witnesses describe them accurately.

Now, that, in our submission, takes the concept of the expert as…..too far and requires you not only to identify his texts but also, like an errant schoolboy, to empty out his pockets and demonstrate what he has so it can be checked.  Your Honours, we submit that just went too far.  The second aspect ‑ ‑ ‑

GLEESON CJ:   Where do we find that principle being stated?

MR GROSS:   Your Honours, in Justice Heydon, 159 in the book.

GLEESON CJ:   Yes.

MR GROSS:   I am sorry, are you talking about the principle, per se, or are you talking about this particular aspect?

GLEESON CJ:   You said that there was a principle stated about what experts have to do in relation to exposing reports and the like on which they rely.

MR GROSS:   Yes, 159 at lines 15 to 35.

CALLINAN J:   That is right, is it not?  It is not possible to assess the context unless you can read the report – to read the standards, for example.

MR GROSS:   Yes.  The first thing is that the standards he did not, per se, place reliance upon.  He mentioned them as being measures of slipperiness but he placed his reliance upon the American Standards.  But, in any event, his reports and evidence were received without objection and it was open to either party to tease out the material by reference to the actual data, even the modern rules in relation to expert ‑ ‑ ‑

GLEESON CJ:   But this discussion begins in paragraph 90, does it not?

MR GROSS:   In paragraph 90, yes.

GLEESON CJ:   All that Justice Heydon is saying is that there is a problem and he says the first problem in Professor Morton’s evidence is so and so.  Where do we find the statement of this principle that you say produces the result that all experts have to empty out all their pockets like schoolboys?  All he is saying is that, “In this case I have this problem with this expert’s report.”

MR GROSS:   Your Honour, he identifies that as a problem but in a number of places he describes the principle as requiring the witness to identify, reveal and demonstrate the factual intellectual basis for the opinion and to fully expose the processes of reasoning but where – obviously, he took that as requiring that you cannot just treat the expert’s statement about where those standards or other tests lead you.  That is an ipse dixit.  You actually have to vouch for it by providing documentation.  Now, I accept, your Honour ‑ ‑ ‑

CALLINAN J:   I do not think that is right.  If you look at paragraph 93, his Honour quotes Professor Morton and he quotes – he is putting something in the passive voice rather elliptically, perhaps:

it is usually accepted –

and then, quite correctly, his Honour says:

He did not say who the persons were who shared this usual acceptance.

MR GROSS:   Your Honour, that is the second aspect where we say there is error because in that particular principle he required that an expert asserting a scientific proposition which is usually or generally accepted should actually identify the persons who shared this usual acceptance and why they had these views.  Now, that, of course, involves hearsay considerations, but if you talk about a general proposition ‑ ‑ ‑

CALLINAN J:   No, it does not.  No, not for an expert.  He says what the general opinion is of a particular body of people learned in the field is, but he never identified the body.  I mean, I know that in the United States – for example, the United States armed services used to have certain standards in relation to slipperiness and those standards were quite different form the civil standards in the United States and I have no reason to suppose that similar differences might exist in other countries.  So, you would need to know by whom it was accepted because different standards might be required in different situations.

MR GROSS:   But he is talking about general acceptance by those who test in the field and where the general proposition relates to measures of dynamic friction.  Now, with respect, both sides can ask questions about what you mean by generally and by whom.  It is unfair, as it were, to create a trap for the party by allowing that evidence to go in, without objection, without even raising the point and then coming back ‑ ‑ ‑

CALLINAN J:   No, not at all.  The other side might take the view that the material just is not sufficiently probative to worry about and decide to leave it alone entirely.

MR GROSS:   Your Honour, they do not call an expert and, with respect, if someone is asserting general acceptance, that is an opinion which, of course, is properly founded in the Evidence Act where evidence can be given based upon the witness’ training, experience, reading and the like.

GLEESON CJ:   And the witness can answer the ultimate question according to the Evidence Act.

MR GROSS:   Yes.

GLEESON CJ:   But if you look at page 157 which introduces this entire discussion that you are complaining about, Justice Heydon quotes in his paragraph 86, paragraph [23] from a judgment of the Full Court of the Federal Court and then he says there was no objection taken to this evidence but the question is as to its weight, and the rest of the discussion of this subject goes to the weight of the evidence.

MR GROSS:   Your Honour, that is so, but in the end he is depriving it of weight on grounds which basically are admissibility arguments and, of course, the advantage of taking objections to admissibility is that it puts parties on notice so they can repair their position, take supplementary oral evidence and the like.  If, in fact, you are allowing opinions just to go in and then, in effect, the ultimate attack comes not at trial level after the evidence is in but at appellate level, that, with respect, is creating a situation where parties are sandbagged, that is, ambushed by a surprise at a stage where it should not be occurring.

So, with respect, to talk about it as having no weight is basically to say this has no materiality or is not sufficiently proven to be admissible in evidence, therefore it should be discarded altogether.  Now, that, in our submission, is a very unwieldy way to deal with expert evidence.

CALLINAN J:   What is wrong with paragraph 94 on page 160?

MR GROSS:   The 0.4 is the point below which it is acknowledged that, in fact, you have undue slipperiness.  The references there are a bit confusing but ‑ ‑ ‑

CALLINAN J:   No, but what is wrong with it as a statement:

The difference between p.34 and 0.4 is not great mathematically, but whether it was crucial must depend on scientific issues of which the trial judge was told nothing.

MR GROSS:   With respect, that is an incorrect characterisation because it is clear, as has already been pointed out by the expert, that it was common consensus that below .4 you have a situation of slipperiness which should not be allowed to exist.  So, the difference between .3 and .35 on the one hand and the others is one is below, the other is not, and that is how you test slipperiness.  So that to suggest that there is not much of a difference in the numbers and it depends on scientific issues where the trial judge was told nothing, that cannot be so.

You have a professor of applied physics basically explaining physical principles in relation to resistance and the way in which you test slipperiness.  With respect, his expertise, the fact that he has that training, enables him to express some things relatively compendiously.  He does not have to, with respect, as it were, start at scratch and commence a first year physics lesson for the parties or the court.

GLEESON CJ:   What do you say about page 98, the second last line, in the judgment of Justice Priestley?  In one sense, all that Justice Heydon is doing is saying in a much more elaborate way what Justice Priestly said very succinctly.  He said he thought that Professor Morton’s opinion was clearly wrong.

MR GROSS:   Could I go to Justice Priestley, firstly, if I can, just to deal with that?  Professor Morton’s evidence is basically put aside by Justice Priestley because of the lack of evidence of other slipping incidents occurring on the stairs and he finds that that outweighs what might be in the expert’s opinion accepted by the judge.  Now, of course, the problem there is that there was just a void on the point.  There was not evidence that there had been no complaints or no injuries or no falls, rather, there was just no evidence either way on the point.

GLEESON CJ:   How did Professor Morton’s opinion address the significance of the fact that no one else ever slipped on these slippery steps?

MR GROSS:   The first thing is, that was never proven that there was no other injuries, et cetera.

GLEESON CJ:   Just take the facts set out.  Again, it is unfortunate that we cannot see Professor Morton’s report, but did Professor Morton in his report address the question of whether anybody else ever slipped on these slippery steps?

MR GROSS:   No, he had not, and that, itself, is a matter for judicial assessment because you have to work out why you have a void in the evidence, that is, no evidence either way, no one saying no complaints, no one saying there were complaints.  Of course, when you have slipperiness, you can have near falls, you can have near misses, matters not complained of and, of course, the parties have unequal access to witnesses on that point.

GLEESON CJ:   Now, the plaintiff, herself, was a regular user of these steps, was she not?

MR GROSS:   Yes, your Honour.

GLEESON CJ:   Did she ever find them slippery before?

MR GROSS:   Your Honour, what she said was she did not have problems with them but that she had to be careful and she usually hung onto the railing so she did not slip.  Your Honours, we have summarised that evidence in our own submissions.  So, there was an extra witness, a female witness, who was not accepted on the complaints point, that is, her observations were not accepted by the trial judge.  Then, finally, there was just one other witness, Mr Firth, who basically said he personally had not experienced any problems.

GLEESON CJ:   I might be mistaken and confusing it with something else, but am I right in thinking there was about 10 years between the time the slip occurred and when Professor Morton came to address this problem?

MR GROSS:   There was a long gap.  On the other hand, both the trial judge and the Court of Appeal accepted there was no material difference in the stairs, or indeed in the shoe, having regard to the effluxion of time so valid comparisons could be made.  Of course, he is an expert and was able to analyse the way in which the stairs were made with a wet trowel method which creates a smooth, hard surface.  He was familiar with the method of making them.

GLEESON CJ:   Did the plaintiff continue to use these stairs after her fall?

MR GROSS:   If she was getting down from the car park to the office, I cannot imagine how else she would do it and she obviously continued ‑ ‑ ‑

GLEESON CJ:   Over how many years did she continue to use the stairs after she fell?

MR GROSS:   I just have a funny feeling it was about – I will have to check the chronology on that but she continued on, I think – it is a 1986 accident and she leaves the place of employment it looks like in the early 1990s some time.  In 1993 she worked for another company.  So she continued on.  Now, we do not know what adjustments she made.  I am not sure the matter was ever explored as to what the situation was, subsequently, but, your Honours, the evidence is just not available to ‑ ‑ ‑

GLEESON CJ:   I am not sure, Mr Gross, I have to say, whether this case shows anything more than the nasty things that can happen to an expert’s report if somebody decides to take to it.

MR GROSS:   But, your Honour, it is the character of the attack.  It is setting standards which we submit are too demanding when one looks at how expert reports are created and when one looks at the fact that extra evidence can be given to deal with shortfalls in the proof of the

admissibility of reports, but if objections are not taken by defendants, it is very unfair, in our submission, to take those points later.

CALLINAN J:   No, it is not necessarily so at all.  The defendant, or the other side, takes the chance that it lacks any probative value or it is so inherently contradictory that he or she does not have to worry about it.  It may be a risky thing to do, but the fact that no objection is taken does not elevate the report to such a position as requires a judge to accept it.

MR GROSS:   I will finish now, if I may, but the trial judge accepted it.  The Court of Appeal basically said it had no weight and therefore was necessarily outweighed by ‑ ‑ ‑

CALLINAN J:   Well, the trial judge was in error to accept it and the Court of Appeal was totally correct in reaching that conclusion.

MR GROSS:   Yes.  Your Honours, they are my submissions.

GLEESON CJ:   Yes, thank you, Mr Gross.  We do not need to hear you, Mr Hislop.

MR HISLOP:   May it please the Court.

GLEESON CJ:   The factual issue at the centre of this case was whether the stairs on which the plaintiff/applicant fell were slippery.  There was a strong attack on her credit.  There was no evidence that anyone else experienced slipperiness of the stairs, notwithstanding their use over many years.

The plaintiff’s evidence was supported by an opinion of Professor Morton.  The unanimous decision of the Court of Appeal turned upon the assessment made by the members of the Court of Appeal of the cogency of Professor Morton’s evidence.  The decision of the court was essentially factual.

The case presents no question of principle suitable to a grant of special leave and we are not persuaded that the interests of justice require that there be such a grant.  The application is refused with costs.

AT 2.24 PM THE MATTER WAS CONCLUDED