Waring v Roberts (Ruling No.2)
[2024] VCC 1182
•30 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-02546
| Waring | Plaintiff |
| v | |
| Roberts | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2024 | |
DATE OF RULING: | 30 July 2024 | |
CASE MAY BE CITED AS: | Waring v Roberts (Ruling No.2) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1182 | |
RULING – EX TEMPORE
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Subject: EVIDENCE – PERSONAL INJURY
Catchwords: Admissibility of evidence – Application by plaintiff for leave to rely on supplementary expert report Probative value of evidence - Prejudice to defendant – Interests of justice
Legislation Cited: Evidence Act 1995; Civil Procedure Act 2010
Cases Cited:Dasreefv Hawchar 243 CLR 588
Ruling: Application dismissed. Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr A Theodore | Arnold Thomas and Becker |
| For the Defendant | Ms F Spencer SC with Ms J Zhu | Solicitors for the Transport Accident Commission |
HER HONOUR:
1This is an application by the plaintiff to rely on a late-served supplementary expert report of Blake Winter dated 26 July 2024 (“the second report”) and an application that I revisit my decision on 24 July 2024 to exclude Mr Winter’s report dated 15 April 2024 (“the first report”). In the alternative the plaintiff seeks a voir dire to determine the admissibility of the reports.
2Mr Winter prepared two reports in relation to Mr Waring’s collision with a parked car on 21 December 2016. Mr Waring alleges that he collided with the parked car because he was forced to take evasive action due to the negligence of the defendant.
3Mr Winter was retained by the plaintiff to provide an opinion in his capacity as a forensic engineer. Mr Winter is a mechanical engineer who has additional qualifications in motorcycle collision reconstruction, “Vehicle Forensics & iVE Certification” and crash data retrieval and analysis using the Bosch Crash Data Retrieval System.
4There is no dispute in this case that he is a suitably qualified expert.
5Mr Winter was asked to provide an opinion, amongst other things, about the speed of Mr Waring’s collision, the speed Mr Waring was travelling when he entered the slide that resulted in the collision, and his speed prior to entering the slide.
The first report
6The plaintiff seeks to rely only on section 4.1 of the first report from pages 26 to 30, finishing with the words “overturning and then impacting the Nissan Dualis”.[1] In that section of the report Mr Winter says that he has attempted to ascertain the speed of the motorcycle at the time of the collision and at the time that Mr Robert’s vehicle intruded on its path of travel. Mr Winter has reviewed a single image of the motorcycle at the scene which he reproduced in his report. In that image, scrape marks on the roadway are visible.
[1] Plaintiff’s Court Book (“PCB”) 270-273
7Mr Winter opines that this means that the motorcycle overturned prior to the impact with the stationary vehicle. He opines that sharp turning or a sudden brake application has upset the balance of the vehicle resulting in it overturning.
8He says that the car parks in the area are approximately 2.5m wide and the scrape marks visible on the photograph do not appear to extend across a full car park and are therefore likely to be closer to 1.5m to 2m in length.
9He says he “performed a basic calculation…to indicate that these scrape marks are consistent with Mr Waring’s motorcycle overturning at relatively low speed”.
10He then describes the calculation he has applied as
Where:
V = motorcycle speed (m/s)2
2 = Constant
g = gravitational constant 9.81m/s2
d = distance of slide (1.5 – 2.0m)
grad = 0.13 – 0.22 (for 95% confidence)
1.4 = constant
(“the Hague formula”)
11He explains that the equation was presented by Hague D in a paper “Calculation of speed from motorcycle slide marks (estimate of deceleration rate from published data)”.[2]
[2] Impact - Journal of The Institute of Traffic Accident Investigators (2004) 13 (No 1)
12The Hague formula is based on the premise that a more accurate estimation of deceleration rate can be made if motorcycles are split into two different categories, based on the presence or absence of fairings, crash bars and/or panniers.
13Using the Hague formula Mr Winter estimates the impact speed of Mr Waring’s vehicle was 19km/h to 23 km/h. It is not clear what he means by “impact speed”. He says the damage to Mr Waring’s vehicle is “relatively low level”. He says photographs show minor damage to the front of the motorcycle and reproduces that photograph. He notes a few minor scrapes to the front of the motorcycle, and broken front headlights. He considers this damage consistent with a relatively low speed impact. He says a more severe impact would have caused more extensive damage to the motorcycle. He notes that the damage to the vehicle the motorcycle struck, the Nissan Dualis, is also relatively minor, with a minor distortion to the rear left quarter panel, dislodged and dented rear bumper and dislodged rear wheel arch. He considers that the damage is consistent with a relatively low impact speed and opines that “the damage is so minor that it is likely the impact speed was very low, most likely under 20km/h”.[3]
[3] PCB 723
14He goes on to say “Therefore an approximate speed at the point where the motorcycle overturned is found by adding the speed together using the sum of squares method. This gives a speed at overturn of 28km/h to 31 km/h. The author was not able to determine the speed of Mr Waring’s motorcycle at the time that Mr Robert’s vehicle moved into its path, leading to evasive actions being taken by Mr Waring’s motorcycle, because it is unknown what actions were taken in terms of acceleration, braking etc. Further information regarding the exact braking point, distances covered etc would be required to do this calculation. However, based on the length of the scrape marks and damage to both vehicles, it appears that Mr Waring’s motorcycle was travelling at relatively low speed as it came past Mr Robert’s vehicle, overturning and then impacting the Nissan Dualis.”[4]
[4] PCB 274
Application in relation to the first report
15On 19 April 2024 solicitors for the defendant informed solicitors for the plaintiff that Mr Robert’s objected to Mr Winter’s report on the basis that it was not an expert report, did not fall within the exception set out in s79 of the Evidence Act 1995 and was otherwise not admissible. The defendant’s solicitors informed the plaintiff that if the matter proceeded to trial it would make an application to exclude the report from evidence.
16The trial in this matter commenced on 23 July 2024. At that time the defendant’s counsel informed the Court that she objected to the admissibility of Mr Winter’s first report. The plaintiff informed the Court that he did not seek to admit the whole of the report and confined the part of the report he sought to rely on to part of section 4.1 as set out above.
17Argument about the admissibility of the redacted report was heard on 24 July 2024. The plaintiff submitted that Mr Winter had disclosed his path of reasoning, his opinion was within his area of expertise and the opinion was therefore admissible.
18The defendant submitted that Mr Winter had applied an equation he had found in an article, that article only recently having been provided to the defendant. Mr Winter then plugged in “guesstimates” to come up with a figure. The equation consists of constants, the only variable being the length of the skid marks. Mr Winter had made his “guesstimate” based on one photograph. The Hague paper says that skid marks should be measured from beginning to end, including any gaps. It is not apparent where the skid marks begin on the basis of the photograph. The photograph does not allow for an accurate measure to be made. He has not disclosed how he has measured the skid marks, except by reference to the width of the parking bays, which is not an application of any expertise. He has provided a figure for the speed at overturn by applying the “sum of squares”. No path of reasoning is disclosed for applying the “sum of squares”. The opinion provided is not wholly or substantially based on expertise. Alternatively the opinion is of no or so little probative value that it should be excluded.
19I delivered an ex tempore ruling on the admissibility of the first report, determining that it was inadmissible in that it failed to disclose a path of reasoning, specifically that there was no explanation as to how the length of the skid mark had been assessed. Mr Winter had not explained how he had measured the skid mark, whether he had included what appeared to be a shorter skid mark in front of one of the continuous lengths of skid mark, and where he had commenced and ended his calculation. It was also not clear whether there were skid marks that extended below the area of the photograph. The assumptions upon which Mr Winter had based his calculations were not included. In the equation Mr Winter had performed, the only variable was the length of the skid mark. Without an explanation of how that mark had been measured, the variability of the outcome of the equation was unknown and potentially significant. It appeared to me that Mr Winter had made a “best guess” which I was not satisfied was of sufficient probative value to warrant the opinion being included.
The second report
20On 24 July 2024 the plaintiff sought the second report from Mr Winter.[5]
[5] Second Report of Mr Blake Winter 2.
21Mr Winter prepared a report dated 26 July 2024 which was provided to the Court on 30 July 2024.
22On 25 July 2024 the jury attended a view of the site of the accident. There were gouge marks in the asphalt that appeared to be consistent with the skid marks seen on the photograph. The jury members were asked to observe the gouge marks in the asphalt.
23Mr Winter’s second report says that the “sum of squares” is a method of calculating kinetic energy. Kinetic energy increases linearly with mass but with the square of speed. This means that doubling the mass doubles the kinetic energy, but doubling the speed quadruples the kinetic energy. He says that, when adding multiple parts of a collision together the final kinetic energy (KEf) is obtained by adding the kinetic energy of the first section (slide in this case) (KE1) with the kinetic energy of the second section (impact damage in this case) (KE2). He then provides the formula
KEF = KE1 + KE2
24The formula for kinetic energy is
25Substituting the formula for kinetic energy into the equation gives
26As the mass does not change, it can be removed from the equation, leaving the formula
27Therefore to calculate the final velocity the applicable equation is
28Mr Winter then identified which scrape mark he measured in the photograph reproduced in his report, by marking it with a green arrow. He said he “has made the best attempt possible to scale the images based on the size of the carpark bays”. He reproduced a satellite image from Nearmap dated 23 December 2016 which shows the measurements of the carpark bays. They vary from 2.48m to 2.72m.
29He recalculated the “speed lost in the slide using the original formula for a slide length of 1.0m to 2.5m”. He said this gives a speed lost by Mr Waring’s motorcycle in the slide section of the collision at 17km/h to 25km/h. I assume that this is what he referred to as “impact speed” in his first report. Combined with the 20km/h “damage estimate” using the sum of squares method he says the new range of speed estimate is 26km/h to 32km/h. His original speed estimate was 28km/h to 31km/h.
30He opined that “the exact length of the scrape mark is not of great importance as the analysis is not particularly sensitive to this. Changing the length by 1.5m only changed the calculated speed by 6km/h”.
31He said the discrepancy in width of the parking bays is not significant because of the minor difference the length of the skid mark made to the speed calculation.
32He explained that the “grad” in the Hague formula is not gradient but is “a best fit line based on extensive testing. The grad (0.13 to 0.22) values are modifiers to the best fit line to ensure that the values obtain cover the 95th percentile of all results”.
The plaintiff’s submission
33The plaintiff submits that the second report addresses the deficiencies of the first report in that it:
(a) Explains the sum of squares method;
(b) Explains how the skid marks were calculated;
(c) Explains what the “grad” is in the Hague formula;
34The opinion expressed is properly within Mr Winter’s expertise and the plaintiff says the reports together are important, probative evidence.
The defendant’s submission
35The defendant objects to the admissibility of the second report(and, by extension the admissibility of the first report), on the basis that:
(a) He is prejudiced by its late service as he has no opportunity to obtain expert evidence in response;
(b) It is a very late attempt to rectify the deficiencies of the first report;
(c) In any event the report does not rectify those deficiencies;
(d) The reports are of so low probative value that they ought to be excluded on that basis.
Findings
36By order dated 2 August 2023 the parties were to provide all expert reports concerning liability by 16 April 2024. No new medical or expert reports were to be served except by leave of the court. Any updated reports were to be served by 25 June 2024.
37The second report has been served out of time, and cannot be relied on except by leave of the Court.
38Pursuant to s7 of the Civil Procedure Act 2010 the overarching purpose of the rules of court in civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
39The primary consideration must be the just disposition of those issues.
40After receiving the first report, the defendant formed the view that it was inadmissible.
41It is not for the defendant, nor the Court, to notify the plaintiff of the deficiencies in an expert report in order to provide an opportunity for the plaintiff to address those deficiencies. The defendant is now denied an opportunity to obtain his own expert opinion to challenge the conclusions of Mr Winter. It is no answer to say that the defendant could have obtained his own opinion, and is now in no different position than if he had been unsuccessful in his application to exclude the first report. The defendant was entitled to prepare his case on the basis that the first report comprised the expert liability evidence and to “take his chances” on his application to have it excluded.
42Mr Roberts is now 91 years old. The accident occurred nearly 8 years ago. For those reasons he does not seek to adjourn the trial. I accept that adjourning the trial to enable Mr Roberts to obtain his own expert opinion is not in the interests of justice. I accept that, as a result of the late service of this report, he is prejudiced. For that reason I am not persuaded that leave should be granted to rely on the second report.
43However even in the absence of prejudice to the defendant caused by the late service, I am not satisfied that leave should be granted. During the application I raised a number of questions that are not explained or clarified by Mr Winter in his report. A voir dire was proposed by plaintiff’s counsel as the “time honoured” method of determining those issues. I am not persuaded that a voir dire is the appropriate mechanism to resolve those questions, occurring, as it would, a week into a jury trial in circumstances where the defendant would not be able to obtain opposing expert evidence. A voir dire in those circumstances would appear to me to be an attempt by the plaintiff on a third occasion to rectify deficiencies in his expert material.
44As I understand the Hague formula, it provides an equation to determine the velocity of a motorbike at the point at which it commences sliding. Mr Winter puts it no more highly than that “Hague presents equation 1 for unfaired, partially faired and pannier equipped motorcycles”.
45It is not apparent to me whether the Hague formula is the accepted methodology within Australia of calculating motorcycle speed at the point of commencement of slide. This might be the case, I simply do not know.
46Hague notes that the commencement of sliding speed can be calculated by determining the square root of 2 x (the coefficient of friction) + (the final speed) squared: 1/2
47Hague notes that the final speed will be zero if the vehicle slid to a stop. In the formula he then presents to account for the co-efficient of friction and other variables, Hague does not include the square of the final speed. I assume that the formula assumes a final velocity of zero based on the motorcycle sliding to a stop, rather than sliding into a parked car and consequently coming to a stop.
48Mr Winter accounts for the fact that the motorcycle did not slide to a stop, but was stopped by the parked car, by using the sum of squares method. He appears to add back into the equation his estimate of the speed of the motorcycle at the time it hit the parked car, in order to arrive at the velocity at the time the motorcycle entered into the slide, although he expresses this as the “20km/h damage estimate”.
First variable
49Mr Winter has estimated the velocity of the motorcycle at the time it hit the parked car as 20km/h. He has made this estimate on the basis of his opinion about the damage done to the parked car and the motorcycle. He does not disclose what assumptions he has made about that impact, for example what assumptions he has made about what part of the motorcycle struck what part of the car on impact. The motorcycle, on the plaintiff’s evidence, was sliding with its left foot peg scraping the ground. It is not known where the point of impact was or whether the motorcycle tyre or some other part of the motorcycle came into first contact with the car. I do not know whether this would impact the damage done to the vehicle. The estimate of 20km/h is one variable in the equation used to derive the range of speed at the commencement of the slide.
Second variable
50Secondly, Mr Winter’s report does not satisfactorily resolve the question of the length of the skid marks. He has identified what he has measured and then allowed a larger variation than in his first report. However it is not known whether the skid marks extend beyond the range of the photograph. The plaintiff did not give any evidence about how far he estimated he slid. I do not know whether the skid marks as measured are an accurate representation of the length of Mr Waring’s skid. Mr Winter’s opinion is that the length of the skid mark is not of great importance because the analysis is not particularly sensitive to this. Nevertheless, this is a second variable that alters the outcome of the equation.
Third variable
51Thirdly, Mr Winter explains that the “grad” values are modifiers to the best fit line to ensure that the values obtain cover the 95th percentile of all results.
52As I understand it, this value, which ranges from 0.13 to 0.22 is a co-efficient which modifies the equation and encapsulates all the unknown variables in the data sets examined by Hague within a range of 95%. My understanding is that this means that 95% of the cases analysed by Hague fit within that specified range. Of those cases that do not fit within that range, it is not known what the grad value could be.
53It is not known what figure within that grad range Mr Winter has applied in this equation, or the basis of his choice of that figure. If the modifier is intended to capture the unknown variables there may be matters which make one end or another of that range more appropriate than another. I do not know, from Mr Winter’s report, whether the range he has given of 26km/h to 32km/h is the range based on the variable skid mark distance of 1.0m to 2.5, a range based on a variable grad between 0.13 and 0.22, a combination of both, or an average of both. I have assumed, based on his report, that the variation reflects the range of skid mark distances but this is not clear. The grad used in the equation is a third variable.
Other variable factors
54The Hague paper from which Mr Winter obtained the Hague formula notes that the Hague formula “provides an accurate, easily applied method for estimating the initial speed of a sliding motorcycle. However the results of these calculations, quite correctly, have a very large tolerance – indicative of the large variation in motorcycle deceleration rates. With additional information it may be possible to estimate whereabouts in the calculated range the speed is likely to lie”. The factors considered that might impact the deceleration rate include the nature of the motorcycle, the road texture and the appearance of gouge/scrape marks. In relation to gouge or scrape marks the paper notes “It has previously been suggested that the amount of gouging to the road surface can assist in the estimation of deceleration rate. The suggestion is that deep gouges indicate a stronger interaction with the road surface, increasing the vehicles deceleration rate. The suggestion seems entirely reasonable, although there is currently little supporting data.”
55In his conclusion Hague notes that “An investigator may wish to opine as to where in, or outside, these ranges the speed of a specific motorcycle could lie. Any such opinion should be based on: how forcefully the motorcycle struck the road, the nature of the motorcycle, the surface and the appearance of the slide marks”.
Conclusions
56Nothing in Mr Winter’s first or second report indicates that he has considered any of the other variable matters, despite the apparent presence of gouge marks in the road. Although the range he has derived from his calculations is relatively narrow, between 26km/h to 32km/h, there are at least three variables that inform that calculation – the distance of the skid marks, the estimate of the speed the motorcycle hit the parked car and the unknown value of the grad. The true variation in the estimate of speed at the start of the slide, for example what difference it would make if speed of impact into the parked car was varied by five or ten kilometres, is not known.
57Assessing both reports, I am not satisfied that the path of reasoning properly discloses the variables and allows the jury to understand the basis upon which the range of speed has been calculated, and the nature of the variables applied by Mr Winter.
58The principles for admissibility of expert evidence are set out in Heydon J’s decision in Dasreefv Hawchar:[6]
(a) the opinion is relevant or of sufficient probative value;
(b) the witness has properly based specialised knowledge (the expertise rule);
(c) the opinion is wholly or substantially based on specialised knowledge (the expertise basis rule);
(d) there is a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that the opinion is based on the expert’s specialised knowledge (the statement of reasoning rule).
[6] 243 CLR 588
59I am not satisfied that there is a statement of reasoning which shows how the facts and assumptions relate to the opinion. In particular it is not apparent what assumptions have been relied upon in calculating the speed of impact, and what facts (what grad was applied) have been relied on in the equation to determine Mr Waring’s speed. On that basis I do not consider the reports meet the criteria for admissibility under s79 of the Evidence Act 1995.
60The calculations applied are quite complex. The reports have to be carefully read and analysed to be understood. It is not apparent whether the Hague formula is simply one method for calculating deceleration rates, or is the widely accepted methodology. There are a number of variables which may affect the outcome of the equation. Because of all these matters I consider the report to be of low probative value.
61An expert giving evidence that appears to be based on a mathematical formula to arrive at an answer, even if that answer is within a range, is likely to be highly persuasive to a jury. In all the circumstances I am satisfied that the probative value of this evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. On that basis I would exclude the reports pursuant to s135 of the Evidence Act 1995.
62Accordingly, the plaintiff’s application for leave to rely on the second report of Mr Winter is dismissed.
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