Thomas v Powercor Australia Limited (Ruling No 7)
[2011] VSC 502
•4 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT HORSHAM
COMMON LAW DIVISION
No. 9166 of 2009
| LAURENCE PETER THOMAS | Plaintiff |
| V | |
| POWERCOR AUSTRALIA LIMITED (ACN 064 651 109) | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Horsham | |
DATES OF HEARING: | 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30 September 2011 | |
DATE OF RULING: | 4 October 2011 | |
CASE MAY BE CITED AS: | Thomas v Powercor Australia Limited (Ruling No 7) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 502 | Amended 6 October 2011 |
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EVIDENCE – Concurrent expert evidence – Order in which evidence should be adduced – ss 9(1)(a), (c) and (d) and 49(1), (2), (3)(a), (b) and (j) Civil Procedure Act 2010 (Vic) – O 44A Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Expert Witness Code of Conduct - Whether a witness should give evidence of factual matters outside of concurrent expert conclave.
WITNESS – Quarantining of witnesses – Whether witness should be exempt from order not to confer with party’s practitioners – Injustice to the other party who may wish to confer with their witnesses.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr L Armstrong and Mr A Fraatz | Maddens |
| For the Defendant | Mr D Curtain QC with Mr D McWilliams and Mr D Wallis | Wotton & Kearney |
HIS HONOUR:
Introduction
This morning, in the fifth week of the trial, nine experts will commence giving evidence in respect of the liability of Powercor for the Horsham Black Saturday bush fire. Their evidence will take at least four days. The experts, bar one, have previously met and prepared a joint report pursuant to orders which I made earlier in the trial.
Yesterday afternoon counsel for Mr Thomas and Powercor raised a number of procedural matters associated with the concurrent evidence session, namely:
(a)the order in which evidence should be led from the witnesses and cross-examined upon;
(b)whether there should be an order preventing the witnesses from conferring with the parties' legal advisors during the course of their evidence;
(c)whether one of the experts, a Mr Phillip Clarke, should give evidence as to factual matters outside the concurrent evidence session.
The issues to be considered
Yesterday after hearing submissions from counsel for Mr Thomas and Powercor, I finalised the issues for the experts to debate as follows:
Topic 1
(a)At the time of construction of the line what was the method of fixing the screws of the pole top assembly to the pole?
(b)This topic covers whether the screws were:
(i)hammered in to the pole, or
(ii)screwed in to the pole or
(iii)both hammered and screwed in to the pole.
Topic 2
(a)When did each of the coach screws become detached from the pole top assembly of the pole?
(b)Over what period of time prior to 7 February 2009 was the pole top assembly not secured to the pole by any of the three coach screws?
(c)Was any and, if so, what part of the detachment of any coach screw from the pole observable in the course of a standard ground based inspection – if so, over what period of time was it observable?
(d)What effect, if any, does the hammering of a screw into the pole have upon its ability to secure the pole top assembly?
Topic 3
(a)Was Powercor’s asset management system of its network reasonable practice?
(b)Was Powercor’s asset management system as applicable to SWER lines reasonable practice?
(c)What is acceptable risk management practice in respect of a SWER line in a high bushfire risk area where:
(i)an asset failure poses a risk of a fire start;
(ii)a fire start poses a risk of serious injury or death.
(d)This topic covers:
(i)Powercor’s adoption of RCM-II:
(ii)The application of RCM-II and Powercor’s Asset Management strategy to:
·SWER lines
·SWER lines such as the RSL
(iii)Whether a proactive maintenance program should have been adopted, as part of an Asset Management Strategy in respect of SWER lines in high bushfire risk areas.
Topic 4
(a)Was there any safe operating lifespan for the assets on the pole (particularly the pole top assembly) and/or the entire RSL?
(b)Did Powercor adopt a maintenance/inspection system which took into account:
- the age of its assets;
- the environment in which the assets were located.(c)If no to (b) should Powercor have adopted as reasonable practice a maintenance/inspection system which took into account:
- the age of its assets;
- the environment in which the assets were located; and
- what was the form of such a system?
(d)If yes to (c) would such a system have prevented or minimised the risk of the pole top assembly being detached from the pole top?
Topic 5
(a)Was the use of the pole cap assembly (and its components) in February 2009 on the pole reasonable practice?
(b)If an alternative form of pole cap assembly had been utilised, would it have prevented or minimised the risk of the pole cap assembly being detached from the pole?
(c)This topic covers:
(i)the use of coach screws in the pole top assembly for the life of the pole cap;
(ii)the use of the three coach screw form of pole top assembly;
(iii)the possible use of other forms of pole top assembly on the pole.
Topic 6
(a)Did reasonable practice require Powercor to retrofit a different form of pole top assembly (such as a universal pole top assembly or a P bracket) to SWER line poles then fitted with the coach screw pole top assembly.
(b)If such assemblies have been retrofitted would one or other have prevented or minimised the risk of the pole top assembly being detached from the pole?
Topic 7
(a)Did Aeolian vibration play any and, if so, what part in the detachment of the pole top assembly from the pole?
(b)As part of reasonable practice should a vibration pole damper have been fitted to conductors on the RSL?
(c)If vibration pole dampers had been fitted to the conductors adjacent to the pole would their use have prevented or minimised the risk of the pole top assembly being detached from the pole?
Topic 8
(a)Was the method of inspection/maintenance of SWER lines adopted by Powercor reasonable practice?
(b)Was the method of inspection/maintenance of the RSL adopted by Powercor reasonable practice?
(c)If no for (a) or (b) what was a reasonable system of inspection/maintenance of SWER lines such as the RLS.
(d)If a different system of inspection/maintenance had been adopted would it have prevented or minimised the risk of the pole top assembly being detached from the pole?
This topic covers:
(i)the adequacy of a five year inspection cycle of SWER lines in high bushfire risk areas;
(ii)the adequacy of a five year inspection cycle of aging assets on SWER lines;
(iii)the state of the pole top assembly in the four years prior to Black Saturday;
(iv)whether a reasonable inspection would have detected the displacement of the coach screws or any inadequacy in the pole top assembly.
Rules of the Court and the Civil Procedure Act
Order 44 of the Supreme Court Rules deals with the provision of expert opinions, in particular, Order 44.03(2) and paragraphs 1 and 2 of the Expert Witness Code of Conduct. Paragraphs 1 and 2 of the Expert Witness Code of Conduct reads as follows:
A person engaged as an expert witness has an overriding duty to assist the court impartially on matters relevant to the area of expertise of the witness.
An expert witness is not an advocate for a party.
Underpinning these provisions is the concept that the expert’s fundamental obligation is to assist the court in arriving at a just determination of the issues it is required to consider. Effect may be given to this object in a trial setting by the application of the Civil Procedure Act. The relevant parts of the Civil Procedure Act are those contained in s 9(1)(a), (c) and (d) and sections 49 (1), (2), (3) (a), (b) and (j):
s.9(1) Court’s powers to further the overarching purpose
In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects:
(a) the just determination of the civil proceeding;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources.
s.49(1) Court’s power to order and direct trial procedures and conduct of hearing
(1) In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2) A direction or an order under subsection (1) may be given or made by the court at any time
(a) before a hearing commences; or
(b) during a hearing.
(3) Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to:
(a) the order in which evidence is to be given and addresses made;
(b) the order in which questions of fact are to be tried;
(j) evidence, including, but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement.
It follows from both the Rules and the Civil Procedure Act that where a court determines to receive expert evidence in a concurrent session, the court is entitled to fashion the process as it thinks fit. However, it must ensure that the parties are afforded procedural fairness. In this context, each of the parties must be given the opportunity to adduce evidence from a relevant expert and to cross-examine an expert giving evidence contrary to that party's interest.
Analysis
The order in which evidence should be adduced
As with the concurrent evidence session on quantum, consideration of a particular issue will be initiated by me, taking the experts through parts of their reports so that I may ascertain the exact nature of the dispute on a particular issue, or for that matter, agreement between the experts. Once that exercise is concluded, the issue is what order should be adopted in terms of adducing evidence and cross-examining witnesses.
Counsel for Mr Thomas contends that he should not have to go first adducing evidence on each topic. Counsel for Powercor responds by saying that it is for Mr Thomas to prove his case. In the normal course of events away from a concurrent evidence session Mr Thomas' counsel would adduce evidence from his experts first.
The first point to be made here is that each counsel seeks, in effect, to obtain a forensic advantage in the presentation of the evidence. That approach, in my view, is inconsistent with the court's task which is to reach a just result with the assistance of impartial experts. Questions of forensic advantage play no part in this exercise. Rather, as the Civil Procedure Act and Order 44 demonstrate, the task should be to devise a procedure that will lead to the best way for the expert opinions to be understood by the court and provide fairness to the parties.
The next point, I suggest, is to focus on the issues the court has to determine in the trial. In this trial on Mr Thomas' case in negligence three basic issues arise:
(a)was there any and, if so, what foreseeable risk of harm to Mr Thomas' property or that of the group members as a result of potential failure of the pole top assembly;
(b) if there was such a risk, what was the appropriate response of a reasonable electricity distributor to such a risk;
(c) in the event that Powercor's response is deemed inadequate, was such an inadequacy a necessary condition of the outbreak of the fire.
In this case, the factual substratum of the experts' opinions is well established by over four weeks of evidence as to factual matters. As a general rule, given the issues to be considered here, it is appropriate that the plaintiff adduce evidence initially. In that way the court can see exactly what is the case in relation to, say, breach or causation as set out by the relevant expert. Then once the plaintiff's experts have concluded their evidence, both in adducing evidence and being cross-examined, the defendant's experts have an opportunity to respond and articulate the defendant's case, subject, of course, to cross-examination.
Finally, each of the experts will have the opportunity to canvass any matters which he feels have not been mentioned[1]. As I mentioned in discussion with counsel, there is only limited scope for re-examination. In my view, it should be confined to issues such as
(a)an attack on a particular witness' expertise;
(b)an attack on a particular witness' credit.
[1]All the experts are male.
Accordingly, I direct that on each issue evidence be first adduced, if counsel wish to do so, by counsel for Mr Thomas and that it then be the subject of cross-examination by counsel for Powercor. Once that process has concluded, counsel for Powercor may adduce evidence which will be the subject of cross-examination by counsel for Mr Thomas.
Having just stated the applicable rule, I have already determined that there should be an exemption. Topic number 3 deals with Powercor's asset management system and the adoption of RCM-II which was introduced by Powercor in 1998. This represented a fundamental departure in a number of respects from the previous SECV practice. In those circumstances, I think it preferable to have the evidence from the Powercor experts first as to the basis for its introduction and the manner of its implementation. This approach was not opposed by counsel for Powercor and I propose to adopt it on this issue alone.
Quarantining of witnesses
I had directed in the course of the concurrent evidence session of the experts on quantum that the witnesses not confer with the parties' lawyers. I made such an order on the basis that the expert witnesses should be able to discuss amongst themselves the relevant issues during the course of the session. This, I thought, may encourage agreement on issues and more importantly, would militate against partisan encouragement or schooling of the witnesses by the parties' legal advisors during the course of the session.
I would have made such an order in respect of liability experts, however, a problem has arisen.
Mr Vincent Power is an expert witness on liability called by Powercor. He has already given evidence as to factual matters in the course of the trial. He is also a senior manager at Powercor and responsible for giving instructions to Mr Curtain and his team and has been present throughout the course of the trial.
Mr Curtain, understandably, seeks that Mr Power be exempted from any order concerning contact with expert witnesses. He may wish to obtain instructions from him on particular issues relevant to the topic under discussion or other matters arising out of the experts' session.
I am satisfied that it would be appropriate for Mr Power to be exempted from a quarantine type order but if I exempt Mr Power, that may work an injustice to Mr Thomas' legal team as they may also want to confer with their experts outside court hours, as Mr Tobin has contended.
Reluctantly, I am satisfied that I should make no order quarantining an expert other than that the witness not confer with his legal advisors if he is under cross-examination.
The evidence of Mr Phillip Clarke
I raised yesterday with the parties the question of Mr Phillip Clarke giving evidence outside the concurrent witness session. Mr Clarke has, at the request of Powercor, provided an expert opinion as to the RCM-II process and its implementation by Powercor as part of its asset management strategy. He has also provided an opinion as to the implementation of the strategy as it affects the issues in this case.
Mr Clarke was, in 1997 and 1998 and later in 2000 and 2001, intimately involved in the process by which Powercor implemented and maintained its asset maintenance program. For part of that time he was the lead consultant at Price Waterhouse Urwick on the program and subsequently wrote the Asset Management Policy Manual for Powercor. He also participated in the training and review of the asset management strategy in 2000 and 2001.
It is clear from his expert witness report that there are a number of factual matters underpinning his opinion directly relevant to the determination of issues such as
(a) the move to a five year inspection cycle;
(b)maintenance of power lines in the form of retrofitting, another form of pole top assembly or dampers.
At a more general level there is the matter of implementation of RCM-II in the form of the Asset Management Strategy Plan.
Mr Power, who has also provided an expert opinion, has given evidence as to factual matters outside of the concurrent evidence session. In my view, Mr Clarke should also give evidence as to factual matters outside the concurrent evidence session. It is unfortunate that this issue was not raised earlier as it may cause inconvenience to the other experts. Mr Clarke's evidence should, as far as practical, proceed before the expert witness sessions dealing with topics 3-8. I propose to commence his individual evidence directly after the conclusion of the sessions dealing with topics 1 and 2 and sit, if necessary, late this afternoon and earlier tomorrow morning.
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