Decision of the High Court of Australia in Dasreef Pty Ltd v Hawchar - Essay Example

? Decision of the High Court of Australia in Dasreef Pty Ltd v Hawchar HCA 21 (22 June . The decision of the High Court of Australia in Dasareef Pty Ltd v Hawchar [2011] HCA 21 handed out on 22 June 2011 involves the admissibility of expert evidence of Dr Basden for the side of Hawchar in evidence of his having contracted silicosis during his employment with Dasareef Pty Ltd. Although the evidence of Dr Basden was considered inexact and imprecise as to the numerical or quantitative calculation of silica exposure and an hence inadmissible evidence as contended by the appellant Dasareef and conceded by the courts below and the High Court, the latter allowed the claim of Hawchar and dismissed the appeal by Dasareef Pty Ltd for the reasons that the fact of his illness of silicosis was incontestable regardless of inadmissibility of the expert evidence. a) What is expert evidence? Sections76-80 of the Evidence Act 1995 NSW deal with opinion evidence (Evidence Act 1995). Section 79 provides for expert evidence as opinion based on specialised knowledge although there is no expression of the term ‘expert’ (Ying, 2005, p 76). Section 177 of the Act provides for an expert evidence to be given in the form of certificate with the expert’s name and address and his signature affirming that he possesses specialised knowledge acquired through study, training or experience as mentioned in the certificate. The certificate should claim that his expert opinion contained therein is based on such knowledge through study, experience or training. This could serve as admissible evidence without the expert attending the court unless the opposing party requires him to tender evidence in person at the court and be subjected to cross-examination. If , after tendering of the evidence by the expert in person , the court feels that there was no need for his personal appearance to tender evidence, costs may be imposed on the party who made such a request for being awarded to the expert (Ying,2005,p78). In fact, the expert evidence is one of the exceptions to the opinion rule as evinced by the section 76. Evidence law does not allow opinion of a witness unless he/ she is an expert in the relevant field. Other witnesses may only testify to the facts as to their existence without being qualified by their opinion. It is for the court to form an opinion based on the facts testified. This is the position with common law as well (Ying, 2005, p78). According to Phipson (2000), common law rule is that no opinions, inferences or beliefs of individuals are admissible in evidence as proof of material facts. Cross (2004) says that the purpose was to exclude “uncertain and unreliable knowledge”. Apart from section 79, sections 77 and 78 permit lay opinions of witnesses. The decision in Dasreef Pty Ltd v Hawchar (LegalOnline, 2011) questioned the admissibility of what was claimed to be expert evidence under section 79. Although the so called expert was allowed to tender evidence, he did not meet the criteria laid down in section 79 and 177 stated above. Nawaf Hawchar, with a history of employment as stonemason for five and half years from 1999 to 2005 with Dasreef Pty Ltd, claimed to have developed silicosis due to the nature of his job having risk of exposure to silica dust. He was under similar employment in Lebanon earlier to 1996 for one year. In addition, he did private stonemasonry work during the period from 2002 to 2005. Since in May 2006 Hawchar was diagnosed with early stage silicosis and earlier in 2004 for Sclereroderma, he filed claim for damages for injury of contracting scleroderma and silicosis against his employer Dasreef in Dust Diseases Tribunal of New South Wales (LegalOnline, 2011). Alleging that his employer Dasareef had exposed him to unsafe levels of silica dust whist under his employment, Hawchar produced during the trial, an expert evidence of Dr Kenneth Basden as a competent person to give an expert opinion about his Silicosis condition by virtue of his qualifications as a chartered chemist, chartered professional engineer and retired senior lecturer in the School of Chemical Engineering and Industrial Chemistry at the University of New South Wales. It was found that Scleroderma was not a dust disease and the Tribunal dismissed his claim for damages in respect of Scleroderma. But he did not oppose it because he could have a claim under the Workers Compensation Act 1987 (NSW). Tribunal however found that Dasareef was responsible for a proportionate exposure to silicosis as 20 out 23 parts, balance being attributable to Hawchar’s work in Lebanon and Australia outside Dasareef. Thus, the Tribunal ordered damages of $ 131,130.43 subject to further award on account of certain silica-related diseases (LegalOnline, 2011). Dasareef contested the Tribunal’s award in the Court of Appeal, NSW which dismissed his appeal except in respect of questions of costs which the Tribunal was asked to reconsider. Dasareef contended that the Tribunal judge “erred in admitting evidence as to the numerical level of respirable silica dust in Mr Hawachar’s breathing zone” and that he also “erred in relying on his “experience” as a “specialist tribunal” (LegalOnline,2011). b) What place does it have in seeking to resolve disputes on technical issues? Section 79 expects expert witness to possess specialised knowledge which should be capable of being identified. Court cannot entertain an expert’s opinion evidence if the specialised knowledge he claims to have cannot be adequately identified as held in NFFM Property Pty Ltd v Citibank Ltd (No 7) (1999). The specialised knowledge can only be acquired through training, study or experience which qualifies one as an expert. There should be clear evidence of his being an expert in the relevant field of knowledge. Thus the study, experience or knowledge of an insurance-loss assessor for 50 years was not considered as an expertise qualified to tender opinion evidence on the physics involved in the movement of vehicles in the decision relating to Clark v Ryan (1960). Similarly, in O’Brien v Gillespie (1997), a solicitor with a practice of only six months, was not considered as an expert to give an opinion on conveyancing practice. A person can become an adhoc expert by virtue of a particular experience such as expertise in a foreign language and numerous listening experience to taped conversations in the language just as a translator was considered capable of identifying speakers on a tape as held in the decision of R v Leung and Wong (1999). Thus, an expert’s opinion must come from his specialised knowledge. He cannot give opinion outside his field of knowledge. Such opinions are considered as irrelevant and cannot be justified under section 79 and fall under section 76 as inadmissible. In R v F (1995), it was considered by the New South Wales Court of Criminal Appeal that a paediatrician specialist’s opinion on psychiatry or psychology though based on her reading, should not have been entertained as expert evidence. In Australian Cement Holdings Pty Ltd v Adelaide Brighton ltd (2001), the Supreme Court of NSW held that an accountant could be considered to give an expert opinion on the accounting standards and principles and not on the standard of conduct of company directors although he had 40 years of experience in dealing with the conduct of company directors. In HG v R (1999), a psychologist who interviewed a child and her mother in a sexual assault case, was not considered as an expert to give opinion that child’s sexual abuse took place in a given year and that her natural father was probably responsible and not the accused. “The majority felt that the psychologist’s opinion was not based on his specialised knowledge, but rather on speculation, inference, and personal and second hand views of the child’s credibility”(Ying,2005, p79). All these decisions are based on the provision of section 79 which insists on the possession of specialised knowledge on the subject matter of dispute or the fact or position on which he is called in to give his opinion. The expert evidence requirement makes specialised knowledge mandatory so that it can assist the court in forming opinion on technical issues involved. A witness’ casual connection to the field of knowledge is not considered an expertise. This strict adherence to the rule enables the court to stay firm without being swayed by non-experts claiming to be experts. c) What important considerations did the Court consider were significant when considering expert evidence? Evidence of the expert was taken on ‘voire dire’ (oath). Although the opposing party objected to the admissibility of evidence, the trial judge did not rule on the admissibility immediately or within a reasonable time or before the party tendering the evidence closed the case. This would have prevented the plaintiff to make amends in case of rejection of his expert’s evidence (LegalOnline, 2011). A trial judge is entitled to withhold his ruling on the admissibility of the evidence until the judgment is delivered only for a very good reason. The High Court felt that the present one was not a fit case to defer admissibility ruling until judgment. It further added that the primary judge used the expert Dr Basden’s evidence for the “purposes for which it was not admissible” and the purpose for which “it may be doubted that Mr Hawchar had sought to tender it”(LegalOnline,2011). The opposing party Dasareef had objected to the expert evidence on more than 70 counts which the primary judge did not address individually as to the merit of each objection. However, the primary judge had observed that Dr Basden’s evidence lacked in numerical expression of the plaintiff’s exposure to silica. Dr Basden had also admitted that he could not measure the actual amount of dust Hawchar inhaled during the period of his employment with Dasareef. Neither a “numerical opinion about the time-weighted average”of Mr Hawchar’s exposure to silica. All that Dr Basden could answer during the evidence on ‘voire dire’(oath) was that respirable silica in Hawchar’s breathing zone would have been as many as 500 or 1000 times the permissible levels of exposure and qualified it as a “ballpark” estimate. This would show that Dr Basden’s evidence could be only proffered for a limited purpose but the primary judge based his calculations for the levels of silica exposure based on Dr Basden’s evidence (LegalOnline, 2011). It has been observed “The dangers of building estimate upon estimate to yield some apparently precise calculation of the time weighted average exposure to respirable silica are evident. Several premises necessarily underpin the use of those estimates in this way. Unless each of those premises has been exposed in the course of argument for consideration by the parties there are serious risks not only that the calculation pretends to an accuracy it does not have but also that the parties are not afforded procedural fairness.”(LegalOnline, 2011, p7). More than that, it was observed by the court that the primary judge implicitly admitted the evidence of Dr Basden while the question arose whether “ Howchar using an angle grinder to cut stone in the course of working for Dasareef he was exposed to dust concentrations at least 1000 times greater than the permissible limit?”. The primary judge’s seemed to have answered that question in the affirmative based on Dr Basden’s evidence and this was the main point of appeal by Dasareef in the Court of Appeal as observed by the High Court of Australia since section 32 of the Dust Diseases Tribunal Act (1989) provided for appeal against the order of the Tribunal on a point of law or an issue of rejection or admission of evidence. In the appeal, the Supreme Court of Australia had to address the issue whether Dr Basden’s evidence showed sufficient expertise on his part to proffer an opinion as regards the measurement of silica “the way he did”. The Supreme Court had observed that cross examination of Dr Basden showed that his opinion was not precise but an estimate drawn from his experience. The court of appeal further said that although the expert’s opinion was “contestable and inexact”, the comment on the expert must come from another expert. Hence, lack of reasoning would not make the present expert’s opinion inadmissible (LegalOnline, 2011). Apart from the disputed evidence of Dr Basden, Dasareef also questioned the primary judge’s right to rely on his own experience gained through handling several cases at the Tribunal. This was also not considered by the Supreme Court which stated that Tribunal judge’s action was not illegitimate and cited decisions in ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales(2004) and JLT Scaffolding International Pty Ltd (in liq) v Silva (1994).. The High Court observed that for an evidence to be admissible under section 79(1), it must comply with two requirements. One, the witness who tenders evidence must have specialised knowledge acquired through his training, study and experience. Second, opinion must be wholly and substantially based on that knowledge. The court pointed out that Dasareef’s grievance before all the three courts including the High Court was that Dr Basden did not give any opinion about the numerical or quantitative level of silica Hawchar was exposed to. The High Court explained that numerical or quantitative level meant that there should be a value assigned capable of being calculated just as the primary judge did. In one sense Dr Basden’s description of exposure to dust at 1000 thousand times or more the permissible levels for a one time operation. But it could not be a foundation for “calculation of the time weighted average level of exposure of a particular worker” (LegalOnline, 2011). Dr Basden’s use of the term “of the order of” could only serve as a measure of approximate expression. Thus, it would appear that Dr Basden did not mean to give an opinion about the numerical or quantitative level of silica exposure. He also affirmed this in his ‘voire dire’. (oath)(LegalOnline, 2011). “Read as a whole, Dr Basden's written report is better understood as offering an opinion about what measures could have been taken to prevent Mr Hawchar contracting silicosis if he was exposed to respirable silica at levels as much as 1000 times greater than permissible levels. And in Dr Basden's evidence on the voir dire, that was what he said he was doing”(LegalOnline,2011, p 9). The High Court observed whether or not Dr Basden’s expert opinion had the backing of his sufficient training, study or experience in the relevant field of knowledge could only be inferred from evidence furnished by him. Hence section 79 “requires that the opinion is expressed in a form which makes it possible to answer that question” (LegalOnline, 2011, p 10). The High Court recalled what was stated by Gleeson CJ in HG and Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) that admissibility of opinion evidence must be in accordance with Evidence Act and not by interpretation of out of context statement from some decided cases. The expert’s evidence must show how the specialised knowledge gained from training, study or experience would apply to the facts of the case so as to produce an opinion. Thus, it requires a little “explicit articulation or amplification” of the subject matter opined about once the expert has finished description of his qualifications and experience during the time of tendering evidence. The High Court pointed that Dr Basden only gave evidence of his training, study and experience without asserting how these conditions helped him give an opinion except by way of a “ballpark” figure. In his written report, he mentioned that he had seen only once before the use of an angle grinder in the manner depicted in the photograph he produced. He could not give evidence of any other instance of the use of the angle grinder or his measurement of silica dust exposure previously. Thus, the High Court felt that there was no way the primary judge could conclude that numerical or quantitative opinion given by Dr Basden was based wholly and substantially on his specialised knowledge gained through training, study or experience (LegalOnline,2011). d) What conclusions did the Court make about the evidence given? The High Court observed that the opinion evidence of the expert lacking in the basis of his specialised knowledge through training, study or experience would only fail in admissibility and not in lending some weight. Section 25 (3) Dust Disease Tribunal Act (1989) permits “Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties.” (1989, p15). Considering the lacunae in the expert evidence given by Dr Basden, the High Court of Australia ruled that the expert in fact neither gave or intended to give a basis for calculation that could be justified as relevant within the meaning of sections 55 (1) and 76 (1) of Evidence Act 1995 NSW. The Court of appeal therefore erred by its contrary findings. The High Court was categorical that the expert evidence failed to satisfy the two criteria of the section 79(1) of Act. However, the majority opinion held that absent the expert evidence, there was other evidence to justify award of damages at first instance. Hence, the High Court of Australia ruled that even though there were errors in decision of the Supreme Court, the Court of Appeal, dismissing the appeal by Dasareef must be upheld. The principle applied was that the expression in section 76 (1) “to prove the existence of a fact” did not distinguish between fact and opinion or between fact and law. It does not also restrict the opinion tendered to matters of fact alone. “Rather, its purpose is to direct attention to the finding urged by the tendering party and to the relevance of that finding in terms of section 55 (1).” (Dasareef Pty Ltd, 2011, p1). As regards the unduly delayed ruling on admissibility of evidence by the Tribunal judge, the High Court of Australia ruled that except for a very good reason, the trial judge should not defer his decision on the admissibility until judgment. And the exception under section 25 (3) of the Dust Diseases Tribunal Act as stated above for use by the Tribunal judge was not found to be applicable. And without an application by a party citing an earlier judgment regarding an issue of general nature, the Tribunal cannot apply the determination of an issue in previous proceedings. Thus, in the light of the undeniable evidence of Hawchar having contracted silicosis, evidence as to the cause of silicosis, evidence as to the methods of avoiding injury, the High Court of Australia (2011) held that Dasareef’s appeal against the liability should be dismissed. Dasareef was also ordered to pay Mr Hawchar’s costs. At 10, the Court states that “because there was no dispute whether at trial, on appeal to the Court of Appeal, or in this Court, that Mr Hawchar suffers from silicosis or that silicosis is a disease caused only by exposure to silica dust”(Spearrit and Chong,2011, no page no.) , Dasareef’s appeal should be dismissed. 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Australian Essential Evidence 3/e, NSW, Australia, Routledge, Cavendish Publishing (Australia) Pty Ltd. Spearrit Andrew and Chong David (2011). Curwoods case note: Australia: Silicosis exposure- High Court overrules the Court of Appeal on the admissibility of expert evidence and the issue of judicial notice. < http://www.mondaq.com/australia/x/137168/Silicosis+exposure+High+Court+overrules+the+Court+of+Appeal+on+the+admissibility+of+expert+evidence+and+the+issue+of+judicial+notice > accessed 13 Sept 2011. Ying Colin (2005). Australian Essential Evidence 3/e, NSW, Australia, Routledge, Cavendish Publishing (Australia) Pty Ltd. Read More