Suttram Pty Limited v Michelin Australia Pty Limited

[2008] NSWDC 205

CITATION:	Suttram Pty Limited v Michelin Australia Pty Limited [2008] NSWDC 205
JUDGMENT DATE:	17 April 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Objections rejected.
CATCHWORDS:	Negligence - Breach of contract - Objection to tender - Report of expert witness - Compliance with r31.23 Uniform Civil Procedure Rules 2005 - Misleading or confusing evidence
LEGISLATION CITED:	District Court Rules 1973 s135 Evidence Act 1995 r31.23 Uniform Civil Procedure Rules 2005
CASES CITED:	Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain [2002] NSWSC 980 Investment Source v Knox Street Apartments [2007] NSWSC 1128 Makita Australia Pty Limited v Sprowles (2001) 52 NSWLR 705 United Rural Enterprises Pty Limited v Lopmand Pty Limited and Ors [2003] NSWSC 870
PARTIES:	Suttram Pty Limited Michelin Australia Pty Limited
FILE NUMBER(S):	4530 of 2006
COUNSEL:	Mr Sharpe for the Plaintiff Mr Vincent for the (2nd) Defendant

JUDGMENT

1. In these proceedings Mr Sharpe, who appears for the plaintiff, has tendered a report of Carl Veen Tyre Consulting Services dated 31 March 2008. Mr Vincent, who appears for the second defendant, has objected to the tender of that report. His objection needs to be understood by reference to the form of the report of 31 March 2008, which became exhibit VDH in voir dire proceedings which were conducted for me to determine the admissibility of the report.

2. As the author of the report Mr Carl Veen says in the covering letter of the report it is a “compilation of all my reports and correspondence regarding a Michelin truck tyre inspected by me on 5 March 2002”. The report which is tendered comprises the setting out, in almost the exact terms, of four earlier reports provided by Mr Veen. They are reports dated 12 March 2002 (which became exhibit VDC) 5 October 2005 (which became exhibit VDB) a report dated 17 July 2002 referring to a report of Mr Herzog and a further report dated 17 July 2002 (which became exhibit VD2) and which was more by way of a response to correspondence. A further component of the report tendered by Mr Sharpe was a report dated 31 March 2008.

3. The focus of Mr Vincent’s objection was to the first of the reproduced reports, namely the one of 12 March 2002. His objection is based upon non-compliance with r 31.23 of the Uniform Civil Procedure Rules 2005. That rule provides that an expert witness must comply with the code of conduct set out in Schedule 7. It also provides that, unless I otherwise order, “an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it”.

4. The code of conduct contained in Schedule 7 came into existence with the Uniform Civil Procedure Rules in 2005. It appears to be common ground that Part 31 would apply equally to the predecessor to Schedule 7, namely a document which became exhibit VDI in these proceedings and was a schedule to the District Court Rules 1973 and was called “Code of Conduct for Expert Witnesses”.

5. Each of the reports contained in exhibit VDH contains an acknowledgment that Mr Veen has read the code of conduct and complied with it. In this sense, and as Campbell J decided in United Rural Enterprises Pty Limited v Lopmand Pty Limited & Ors [2003] NSWSC 870 at [12], the mandatory rejection of exhibit VDH is not required because the report itself does contain the required acknowledgment. Hence there is no need for me to consider whether I will order otherwise.

6. I understand, however, Mr Vincent’s objection in accordance with the authorities then to be by reason of s 135 of the Evidence Act 1995 that I should refuse to admit the evidence because of a danger that it might be misleading or confusing. As Campbell J says in Lopmand, “the policy which underlies the existence of r 36.13C is one which I should take into account in deciding whether the affidavit should be rejected under s 135. That policy recognises that an expert witness can form a view in circumstances where he or she does not realise that his role is one of the kind set out in the code, and once that view has been formed will find it difficult to retreat from
it”.

7. Mr Vincent’s proposition is that the acknowledgments in a number of the reports in exhibit VDH, and certainly in the primary one dated 12 March 2002, were put on, he says, retrospectively. He refers me to the decision of McDougall J in Investment Source v Knox Street Apartments [2007] NSWSC 1128, where his Honour said at [44], that “as a general rule, expert evidence should not be admitted unless the expert has, at the relevant time, subscribed to the obligations” contained in the relevant code. He also refers to the judgment of Einstein J in Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain [2002] NSWSC 980. As McDougall J, who also referred to the Claude George Rene Cassegrain case, said, at [34], Einstein J held that the court “should not generally countenance attempts by experts retrospectively to adopt the obligations” imposed by the relevant code. I should add that references by their Honours to Part 36 should be read as references to the current Part 31 of the Uniform Civil Procedure Rules 2005.

8. Returning to Campbell J’s judgment in Lopmand’s case, his Honour said, in determining the objection under s 135 of the Evidence Act that “one needs to be very much on guard as to whether there is any real possibility that this sort of process of opinion formation may have influenced the ultimate report which is presented to the court, with the result that the court cannot safely act on it”. The sort of opinion formation process his Honour was referring to is one where an expert can form a view in circumstances where they do not realise that their role is one of the kind set out in the code. His Honour acknowledged that that may happen as a matter of ordinary human psychology without any dishonesty on the part of the expert concerned. His Honour then reviewed the circumstances in that case and concluded that he did not think that there was a risk that the fact that the expert in that case formed his opinions without having the code at the forefront of his mind at the relevant time would result in a real possibility that the court might be misled, or the opposite party unfairly prejudiced because he might be expressing an opinion to the court which is infected by failure to understand his responsibilities as an expert.

9. I am, in this case, satisfied as well that there is not a risk that the fact that Mr Veen formed his original opinion, when preparing the report dated 12 March 2002, without direct reference to the code being to the forefront of his mind, would result in a real possibility that the court might be misled or the opposite party unfairly prejudiced because Mr Veen might be expressing an opinion which is infected by failure to understand his responsibilities as an expert.

10. In stating that view I realise that I have not made reference to an important aspect of the evidence, namely that the original report dated 12 March 2002 was prepared by Mr Veen on instructions from an insurance company. The instructions came some weeks before 12 March 2002. The accident had occurred on 16 February 2002 and the proceedings had issued on 20 September 2006. This is important because one of Mr Vincent’s points was that Mr Veen had prepared his report for a particular client. He thus relied upon the passage in Investment Source where McDougall J said, at [50] clause 2, that there is “a real difference between the role of an expert retained to advise a client and the role of an expert engaged to give evidence. The former owes his or her primary obligation to the client; the latter owes his or her primary obligation to the court”.

11. The reasons I have reached the view that I have are these. First, as Mr Sharpe submits, Mr Veen has long experience in his particular expertise. His experience covers over thirty years. His more recent experience in the last eight years has involved him providing reports for various tyre manufacturing companies, including the second defendant in these proceedings in another matter. He has also provided reports to insurance companies, loss adjustors, lawyers and various police departments. He is, therefore, in my opinion, not an expert who is unduly aligned to a particular party, or I should say a particular institution or a particular interest.

12. Secondly, in cross-examination Mr Veen acknowledged that whenever he writes a report he always tries to remain objective. His primary role is to ascertain the facts and to try to remain objective, as he said. When asked whether he had applied his mind to the code in 2002, he answered yes he applies his mind to the code every time, but with particular regard to the objective requirements. He conceded that he did not make reference to the code in this particular instance when preparing the report of 12 March 2002 because he did not anticipate any litigation. It was simply a report provided to an insurance company.

13. I am satisfied that at the time of preparing his report of 12 March 2002 Mr Veen had a conscious appreciation of an obligation as an expert to maintain objectivity and impartiality. I am satisfied of that from his own evidence and from the fact that he has also advised, in another case, the very manufacturer of the tyre which he was inspecting in this case. It is a conscious appreciation of his need to be objective that I regard as important in determining whether, under s 135 of the Evidence Act his report may be misleading or confusing or unfairly prejudicial. I do not regard this case as containing any such danger. I acknowledge that his original report was provided for a client. But I am satisfied that, as I have found, he regarded the necessity to be objective in the preparation of the report as paramount.

14. I therefore reject the objection to the admissibility of the report dated 12 March 2002.

15. In so far as Mr Vincent’s objection to the balance of the reports contained in exhibit VDH was based on relevance, that objection falls away because the primary report is now admitted. Mr Vincent objected to parts of the reports in the balance of VDH on the basis of the principles set out in Makita Australia Pty Limited v Sprowles (2001) 52 NSWLR 705 at [85]. I am not satisfied that any of the principles set out in that case have been breached but, as Mr Sharpe points out, if they have been then it is Mr Sharpe and his client who are at risk in this case of either having the reports rejected or of being confronted with them bearing significantly less weight.

16. Accordingly, I reject the objections to the balance of exhibit VDH.

oOo