Supreme Court New South Wales

• Medium Neutral Citation: Goldsmith v Bisset [2014] NSWSC 1272
• Hearing dates: 09/09/2014
• Decision date: 18 September 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) The questions set out in Annexure A are those to be submitted to the joint conclave of road accident reconstruction experts, namely, Mr William Keramides, and Mr Warwick Kiernan.

(2) Notice of Motion filed 1 September 2014 otherwise dismissed.

(3) Defendant to pay the plaintiff's costs of the Notice of Motion.

• Catchwords: PROCEDURE - civil - interlocutory issues - directions - preparation for hearing - orders made for conclave of experts - attempts made by plaintiff to draft questions to put to experts - defendants refused to agree on questions - Practice Note No. SC Gen 11 -requires that parties should agree on the questions to be answered - failure of defendants to comply with Practice Note and Court orders - questions to be put to experts
• Legislation Cited: Civil Procedure Act 2005; Evidence Act 1995; Interpretation Act 1987
• Cases Cited: Campton v Centennial Newstan Pty Ltd [No.2] [2014] NSWSC 177
• Category: Interlocutory applications
• Parties: Charmayne Goldsmith by her tutor, the NSW Trustee & Guardian (P); Luke Bisset (D)
• Representation: Counsel: J Maconachie QC (P); W Fitzsimmons (D); Solicitors: Carroll & O'Dea (P); Sparke Helmore (D)
• File Number(s): 2006/298059

Judgment

1 On 1 September 2014, the plaintiff, Charmayne Goldsmith, who brings these proceedings by her tutor, the NSW Trustee & Guardian, filed a Notice of Motion seeking the following orders:

"1. Pursuant to Pt 31 rule 31.20 the liability experts be provided with the letter of instruction drafted by Carroll & O'Dea Lawyers and annexed to the affidavit of Lucinda Katherine Holt at annexure D for the purpose of preparing their report in accordance with the orders of the Supreme Court dated 30 June 2014.

2. The experts be provided with any additional or alternative questions that the Court thinks fit.

3. Any other such order as this honourable Court deems fit.

4. The Respondent to pay the costs of the Motion." (sic)

2 The orders sought were opposed by the defendant, Mr Bisset, who was the respondent to the Motion.

3 The dispute concerned two accident reconstruction experts: Mr Warwick Kiernan, retained by the plaintiff, and Mr William Keramides, retained by the defendant.

Procedural History

4 On Sunday, 25 January 2004, the plaintiff was riding her bicycle on Cheyenne Drive, Lamington, near the intersection of Dale Crescent, when she was struck by a motor vehicle being driven by Mr Bisset, the defendant.

5 She was apparently seriously injured.

6 Proceedings were commenced by the filing of a Statement of Claim in 2006.

7 On 30 June 2014, the Common Law Registrar made the following orders, and gave the following directions:

(a) Matter listed for hearing on 27 October 2014 with an estimated duration of 5 days.

(b) Liability experts in their respective areas of expertise are to confer and provide a report on the matters agreed and disagreed, setting out the reasons for their disagreement.

(c) Such conference is to take place on 19 September 2014.

(d) The report for the experts is to issue by 17 October 2014.

(e) Matter stood over for further directions on 19 September 2014.

8 The Registrar also indicated that the relevant part of the hearing on liability would be heard in Albury.

Correspondence between the Parties

9 On 16 July 2014, the solicitors for the plaintiff prepared a draft letter of instruction which it was proposed to send to the liability experts. That letter set out a series of questions which the plaintiff's solicitors suggested were apt for the experts.

10 The solicitors for the defendant responded on 25 July 2014. They opposed sending the draft letter. With respect to the questions which were proposed, the solicitors for the defendants said this:

"(i) No question should be addressed to the experts that require them to make a judgment or assessment as to whether a witness should be accepted as truthful or their evidence as accurate. Similarly, nor should they be asked to express an opinion about any matter or fact which is particularly the function of the trial judge to decide. ...

...

(iv) Questions which experts are asked to answer are normally properly directed to the subject matters which fall within their expertise. The questions are posed to them in the context of assumptions which will ultimately be proved by the evidence ..."

11 The letter did not proffer any alternative questions to be considered by the experts.

12 On 5 August 2014, the solicitors for the plaintiff wrote to the solicitors for the defendant asking them to nominate what alternative questions they suggested should be put to the experts.

13 In the absence of a response to that letter, on 27 August 2014, the solicitors for the plaintiff sent a further letter to the solicitors for the defendant. This letter attached a further proposed letter of instruction to the experts for their joint conclave, proposing somewhat different questions, but maintaining some of the original questions.

14 By letter dated 28 August 2014, the solicitor for the defendant responded. In part, that letter read:

"Each of the experts have prepared extensive reports and their respective positions are clearly identified in those documents.

It ought be possible for the two experts to confer and identify between themselves the areas and opinions where they are in agreement and the matters where there is disagreement between them. They should set forth their reasons for the disagreement (if any).

....

We do not think it is necessary for specific questions to be submitted to these experts and we are of the opinion that they should simply be asked to meet in conclave and prepare a joint report. Such an approach is just, cheap and quick . They are both experienced experts familiar with their obligations to the court.

We are more than happy to argue this matter before the court but, frankly, we regard it as unnecessary and a waste of time and costs." (sic)

15 As a consequence of this response, the Motion was filed. It was returnable before the Court on 8 September 2014, and was referred by the Registrar to the Duty Judge for hearing.

16 When the matter was listed before me on that day, a solicitor employed by the firm who acts for the defendant, informed the Court that senior counsel who was briefed for the defendant was overseas, she was not adequately informed about all of the issues in the proceedings because the solicitor on the record was based in Canberra and not Sydney, and she sought an adjournment for four weeks. That adjournment was opposed. I declined to grant the adjournment for that length of time, and stood the matter over to the following day, 9 September 2014, for hearing.

17 On that day, Mr W Fitzsimmons of counsel appeared for the defendant. He informed the Court that he was not briefed on the hearing of the matter, and was thus not completely aware of all of the issues likely to be raised at a final hearing, but was content to argue the matters raised by the Notice of Motion.

Practice Note

18 Practice Note No.SC Gen 11 applies to these proceedings. The making of a Practice Note is authorised by s 15 of the Civil Procedure Act 2005. It has an effect akin to a statutory rule. A Practice Note may be disallowed by a resolution of either House of Parliament: ss 40 and 41 Interpretation Act 1987.

19 The objectives of joint conferences as set out in that Practice Note include the identification and narrowing of issues in the proceedings during preparation for a joint conference, and by discussion between the experts at the conference, appraising the Court of the issues for determination, and binding experts to their position on issues thereby enhancing certainty as to how the expert evidence will come out at the trial.

20 Clause 6 of the Practice Note specifically requires that the parties should agree on the questions to be answered by the experts at the joint conference.

21 The Practice Note in clauses 7, 8 and 9, clearly contemplates that the parties will address the issues which arise in the proceedings, and which are relevant to the expert evidence, and then to prepare questions addressing those issues which are then to be addressed by the experts at their conference.

22 Clause 11 of the Practice Note requires that the participating expert should be provided in advance with the questions on the issues which are to be addressed at the conference.

23 Clause 16 of the Practice Note is in the following terms:

"The experts should provide their respective opinions in response to the questions asked based on the witness statements or assumptions provided. Where alternative assumptions are provided the experts should provide their respective opinions on the alternative assumptions."

24 It was open to the experts to specify in their joint report any other question which they believe it would be appropriate for them to consider.

25 I have had occasion to discuss the importance of joint conclaves of experts, and the obligations of parties to ensure compliance with case management directions relating to joint conclaves: see Campton v Centennial Newstan Pty Ltd [No.2] [2014] NSWSC 177. Compliance with a Practice Note issued by the Court is in no different category.

Discernment

26 An order having been made for a joint conference of experts, and the preparation of a joint report, then in accordance with the Practice Note and their obligations under s 56 of the Civil Procedure Act, the parties were obliged to prepare questions for submission to the experts. The defendant's attitude was contrary to the Court's order, contrary to the Practice Notice and demonstrated a complete failure to comply with his obligations to the Court under s 56 of the Civil Procedure Act.

27 It seems that the solicitors for the defendant, whether on the advice of senior counsel or not is unclear, paid no heed to the obvious advantages which proper preparation of questions for a joint conclave of experts would have had. It seems that they simply arrogated to themselves the right to ignore the Court's order, and to ignore the requirements of the Practice Note.

28 Other than advancing the proposition that the experts were well-known to each other, and were experienced and therefore should be able to determine for themselves what matters they would discuss at a conference, there was no proper basis, particularly in this case, for the solicitor for the defendant to expect that the Court would excuse compliance with the preparation of questions to be placed before the experts.

29 The initial set of questions proposed by the plaintiff may have been the subject of legitimate criticism but, particularly having regard to the terms of the letter in which they were contained, ought to have been responded to, and in a way which demonstrated compliance by the solicitor for the defendant with the Court's orders.

30 It is important to note that orders made by the Court with respect to the holding of joint conclaves of experts, whether by consent or not, as a result of which the provisions of the Practice Note are engaged, are orders made in furtherance of the overriding purpose of the Civil Procedure Act. The Court has an interest in ensuring that they are complied with. Because they are orders which are likely to affect the efficient conduct of the hearing, it cannot be assumed that even if the parties consented to vacation of the orders, the Court would approve of such a course.

31 If the solicitors for the defendant had a proper basis for amending or vacating the orders for a joint conclave, or else seeking to be excused from compliance with the Practice Note, then the proper course to be followed would be to restore the matter to the court's list and to promptly move the Court for a variation of the orders, or for the need to comply with the Practice Note.

32 Contrary to the proper practice, the solicitors for the defendant simply unilaterally decided to ignore the Court's order and the requirements of the Practice Note. No evidence was tendered by counsel for the defendant which sought to justify or explain this unacceptable conduct.

What Questions Should Be Put to the Experts?

33 Enough has been said to indicate that in this matter questions ought to have been formulated so as to enable them to be put to the experts in advance of the joint conclave.

34 The Notice of Motion of the plaintiffs sought orders giving effect to this procedure. Debate took place about the wording of these questions. There was some agreement between the parties.

35 Senior counsel for the plaintiff pointed out that one danger in this matter in framing questions in a particular way was that it was quite uncertain as to what evidence would eventually be led at trial as to the factual circumstances of the relevant accident. Apparently, it is uncertain what witnesses will be available to give evidence at the trial.

36 Whilst that may be so, the factual circumstances of and surrounding this particular accident are relatively simple. There are a number of statements from people who record their observations in various forms, which the Court may or may not ultimately accept. These various versions have been provided to the experts. Unless the Court otherwise orders, these versions, if relied upon by the experts, are admissible as proving the facts there stated: s 60 Evidence Act 1995.

37 The role of the accident reconstruction expert in such a circumstance is not to engage in an exercise of preference according to the balance of probabilities of one witness's evidence over that of another. That would be to substitute the expert's role for that of the trial Judge.

38 However, it is permissible for an expert applying their expertise, based upon assumptions of fact which they have been asked to accept, or calculations and investigations which they have themselves made, to express a view as to whether it is possible for a particular factual version to be an accurate description of what occurred.

39 An analogy is sufficient to demonstrate the use of an expert in this circumstance. Let it be supposed that a witness describing an accident was to say that the driver's view of the roadway was obscured by the setting sun into which the car was directly heading. If the car was described by the witness in all other respects as heading in an easterly direction, or any direction other than due west, an expert would be entitled to express a view that it was not possible on those assumptions of fact for the witness to be correct in saying that the setting sun was shining directly into the driver's vision. It would equally be possible for the expert witness to express the view that if the car was in fact heading directly into the setting sun, then it could not have been travelling east, as the witness had suggested, but must have been travelling west.

40 This analogy, although imperfect, demonstrates that there is a permissible way in which experts can be asked to comment with respect to the accuracy of witness statements. But in so doing, they are analysing the possible factual account from the perspective of their expertise, and applying their expertise to that account to demonstrate that, taken literally, that account is not a possible account of the circumstances.

41 However, it is not possible, speaking generally, for an expert witness to consider two accounts and indicate which he or she prefers. That is a confusion of the expert's role, with the role of the Court.

42 In order to make possible the formulation of the questions to be put to the experts, the parties provided to the Court all of the expert reports.

43 In light of the fact that the parties could agree on some, but not all, of the questions to be put to the experts, and in light of the fact that objections were taken to some of the questions which were said to be relevant, the Court has proceeded to determine which questions should be put to the experts.

44 It is convenient for the Court to encapsulate those questions in an annexure to the judgment.

Orders

45 I make the following orders:

(1) The questions set out in Annexure A are those to be submitted to the joint conclave of road accident reconstruction experts, namely, Mr William Keramides, and Mr Warwick Kiernan.

(2) Notice of Motion filed 1 September 2014 otherwise dismissed.

(3) Defendant to pay the plaintiff's costs of the Notice of Motion.

**********

ANNEXURE A

GOLDSMITH v BISSET

QUESTIONS FOR CONSIDERATION AT JOINT CONCLAVE OF ACCIDENT RECONSTRUCTION EXPERTS

A. Point of Impact and Orientation

Having regard to:

(a) the physical layout of the area between Colley Street and Dale Crescent, along the length of Cheyenne Drive, as depicted in the photographs annexed to the Keramides report of 12 August 2009, and the Kiernan report of 6 December 2011; and

(b) physical evidence from:

(i) the defendant's motor vehicle;

(ii) damage to the plaintiff's bicycle;

(iii) injuries suffered by the plaintiff;

(iv) the distribution of the debris noted by the police officer at the scene of the accident;

(v) any other physical evidence you may consider relevant

1. What was the location of the point of impact between the motor vehicle and the bicycle on the roadway?

2. What was the orientation of the plaintiff's bicycle when struck?

B. The Plaintiff's Movements before Impact

Having regard to:

(a) the answers given in A1 and A2 above, and the assumptions upon which those answers are based; and

(b) these assumptions of fact:

(i) a child on a bicycle was seen heading in a southerly direction on Dale Crescent by the passenger in the defendant's motor vehicle;

(ii) the defendant's motor vehicle was travelling at between 40kph and 50kph;

(iii) the observation in (i) was made at the first available time when such observation could physically be made:

1. Is it possible that the child on a bicycle in Dale Street was the plaintiff?

2. If it is possible, what are the various factors of time, space, speed, movement and path of travel which would support the probability that it was the plaintiff?

3. What are the various factors of time, space, speed, movement and path of travel which would tell against the probability that it was the plaintiff?

C. Effect of Sun on Visibility of Defendant

Having regard to:

(a) the make and model of the motor vehicle which the defendant was driving, namely a 1997 Mitsubishi Magna; and

(b) the orientation of Cheyenne Drive, and the defendant's vehicle, as the defendant travelled towards the point of impact; and

(c) the sun's location at the time of, and immediately prior to, the collision:

1. Is it possible that the sun directly affected the visibility of the defendant driver?

2. If so, in what respect or respects?

3. Is it possible that the sun indirectly through glare, or otherwise, affected the visibility of the defendant driver?

4. If so, in what respect or respects?

D. Other issues

Are there any other issues which either expert regard as relevant to the Court's determination of who, if anyone, was responsible for the subject collision? If so, are the experts agreed or disagreed upon such issues and the answers to such issues?

Amendments

08 October 2014 - corrected paragraph numbering
Amended paragraphs: 45

Decision last updated: 08 October 2014