Ibrahimi & Ors v Commonwealth of Australia (No 3)

1. [1]

   On 15 December 2010 an incident occurred off the coast of Christmas Island, as a result of which a Suspected Illegal Entry Vessel (“SIEV”) was shipwrecked. A number of persons were injured in that incident, and a number of persons died. The plaintiffs, who are said to belong to a group of persons who have suffered loss and damage by reason of the incident, have brought proceedings against the Commonwealth of Australia.

2. [2]

   It is part of the plaintiffs' case that the Commonwealth was involved in an ongoing operation for the interception of SIEVs in the territorial waters north of Christmas Island. One of the principal issues in the proceedings is whether or not the Commonwealth owed the passengers on board the SIEV a duty to take reasonable care so as to avoid foreseeable harm to them. Broadly speaking it is the Commonwealth’s position that no duty of care was owed, and that if it was, it was not breached in all of the circumstances. Before the hearing commenced before me earlier this week, the proceedings had been the subject of extensive case management.

3. [3]

   The plaintiffs seek to rely upon the expert report of Roderick Douglas Pike dated 24 March 2016. The defendant took objection, in effect, to the entirety of that report.

4. [4]

   I heard argument in relation to the defendant’s objections on 30 September 2016. At the commencement of the proceedings on the next sitting day, namely 4 October 2016, I made orders excluding those parts of the report to which objection had been taken. My reasons for that determination now follow.

GENERAL PRINCIPLES REGARDING ADMISSIBILITY OF EXPERT EVIDENCE

1. [5]

   Before dealing with the specific parts of Mr Pike’s report to which objection has been taken, it is appropriate to set out some of the principles which govern the admission of expert evidence.

2. [6]

   First and foremost, the admission of such evidence is governed by s. 79 of the Evidence Act 1995 (NSW) (“the Act”) which is in the following terms:

3. [7]

   In order for evidence to be admissible as evidence of expert opinion, it is necessary to establish that the opinion is wholly or substantially based on specialised knowledge, and further that such specialised knowledge is based on the person’s training, study or experience: Ocean Marine Mutual Insurances Association (Europe) OV v Jetopay Pty Limited (2001) 20 FCR 146; [2001] FCA 1463 at [13].

4. [8]

   In Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Heydon JA (as his Honour then was) set out (at [41]) a number of principles regarding the admissibility of such evidence. Those principles included the following:

5. [9]

   These observations were approved in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37].

MR PIKE’S QUALIFICATIONS

1. [10]

   In view of some of the objections taken by senior counsel for the defendant to Mr Pike’s report, it is appropriate that I set out in full those passages of the report upon which the plaintiffs rely in order to establish his expertise.

2. [11]

   At p. 2 of his report, under the heading “Expertise” Mr Pike stated the following:

3. [12]

   Annexed to his report was a Curriculum Vitae. Again, in view of the fact that I was taken to that document at some length in the course of submissions by counsel for the plaintiffs, it is appropriate that I reproduce it in full:

THE DEFENDANT’S OBJECTIONS TO THE REPORT

1. [13]

   The defendant objected to a series of paragraphs in Mr Pike’s report. The admissibility of those paragraphs should be considered individually.

Paragraph 4 of the report

1. [14]

   Paragraph 4 of the report is headed “Weather and sea conditions” and is in the following terms:

Submissions of the defendant

1. [15]

   It was submitted on behalf of the defendant that para. 4 purported to summarise the contents of a weather report which has been provided to Mr Pike, and that Mr Pike had proceeded to express opinions regarding the sea conditions on 15 December 2010 based upon the information provided in that report. It was submitted that the nature of the prevailing sea and weather conditions at the material time is a question of fact, and is not a matter in respect of which Mr Pike has any relevant expertise. It was pointed out that Mr Pike is not meteorologist, and has no specialised knowledge based on any training, study or experience which enabled him to express an opinion regarding the weather conditions which prevailed on Christmas Island at the time of the incident.

2. [16]

   Quite apart from these matters, senior counsel for the defendant submitted that Mr Pike had failed to outline the reasoning process which led him to form the opinion he had expressed.

Submissions of the plaintiffs

1. [17]

   Counsel for the plaintiffs submitted that the opinions expressed by Mr Pike as to weather and sea conditions were not matters solely within the province of a meteorologist, and were matters about which a person such as Mr Pike, who was clearly experienced in weather and sea conditions, could give evidence. In this regard, counsel pointed to the fact that Mr Pike was the author of books on a variety of subjects including matters pertaining to storms, wild weather, and the ability of power boats in rough seas.

Consideration

1. [18]

   Documents provided to Mr Pike by the plaintiffs’ solicitors included reports of the Bureau of Meteorology of Western Australia regarding the weather conditions within a 50 nautical mile radius of Christmas Island on the day in question. That material made reference to (inter alia) the expected condition of the sea, the wave height, the level of wind, and the direction of that wind.

2. [19]

   Paragraph 4 of Mr Pike’s report essentially encompasses opinions as to:

3. [20]

   There are a number of difficulties with the admissibility of those opinions.

4. [21]

   Firstly, Mr Pike is not a meteorologist. Whilst he may have published a book entitled “Power Boats in Rough Seas”, and whilst he may also have had experience in what he describes as “rough weather evaluation”, he has no relevant training, study and experience which enables him to express opinions as to matters such as wind speed and wave height. In any event, these are questions of fact, not matters of expert opinion.

5. [22]

   Secondly, what Mr Pike was essentially doing in this part of his report was reproducing (and interpreting) part of the contents of meteorological reports of which he was not the author, and which had been provided to him as part of his instructions. What conclusions are to be drawn from those reports is a question of fact for the court, not a matter for Mr Pike. Moreover, reading a report does not involve the application of any specialised knowledge based upon training, study and experience.

6. [23]

   Thirdly, and even if he were appropriately qualified, the opinions expressed by Mr Pike do not expose any reasoning process which was adopted in forming such opinions. In particular, he has not explained:

Paragraph 6 of the report

1. [24]

   Paragraph 6 of Mr Pike’s report contains his substantive opinions which have been expressed in answer to a series of specific questions which he was asked to consider by the plaintiffs’ solicitors. In view of the approach taken by counsel in the course of submissions, it is appropriate to consider each these opinions separately.

Question 1

1. [25]

   Question 1 was in the following terms:

2. [26]

   In response to that question, Mr Pike stated the following:

Submissions of the defendant

1. [27]

   Senior counsel for the defendant submitted that this part of Mr Pike’s report suffered from a series of shortcomings, including a failure to:

2. [28]

   In the alternative, senior counsel for the defendant submitted that if a conclusion were reached that the evidence was admissible under s. 79, it should nevertheless be excluded under s. 135 of the Act on the basis that its probative value was substantially outweighed by the danger of it being misleading or confusing.

Submissions of the plaintiffs

1. [29]

   Counsel for the plaintiffs submitted that the content of this part of Mr Pike’s report was simply a matter of mathematical calculations based upon a stated formula. Whilst counsel accepted that it “would have been better certainly” if Mr Pike had “gone into a lot more detail and been more fulsome”, he pointed out that Mr Pike was a marine surveyor who had been involved in the design and development of boats, and was thus appropriately qualified to express these opinions.

Consideration

1. [30]

   As I have previously set out, one of the fundamental requirements for the admissibility of evidence of expert opinion is that the reasoning process adopted in order to form the opinion be exposed. In my view, for a number of reasons, there is no such exposition in respect of the opinions expressed by Mr Pike in this part of his report.

2. [31]

   Firstly, in circumstances where the opinion is based to a large extent upon the application of a stated formula, there is no explanation of that formula’s origin or source.

3. [32]

   Secondly, Mr Pike appeared to acknowledge that such formula related “primarily to tugs and vessels with displacement hulls rather than to the small planing boats that are involved in this question”. That acknowledgement obviously raises an immediate question as to the applicability of the formula in the circumstances of the present case. Mr Pike sought to overcome that issue by expressing a belief that the formula would “give a guide”. However, the basis for that belief was not expressed.

4. [33]

   Thirdly, Mr Pike stated that it was “estimated that it would require a bollard pull of 2 tonnes to start making any progress to windward when towing SIEV 221”. The reasoning process which led Mr Pike to express that opinion is not exposed. Similarly, the bases of the estimate(s) that he apparently made are not exposed, nor are the estimates themselves.

5. [34]

   Fourthly, there is no indication of what assumption(s) Mr Pike made about other relevant matters such as the power of the vessel undertaking the towing, or the sea conditions, in arriving at his estimate.

6. [35]

   Fifthly, and bearing in mind his acknowledgement that the Bollard Pull Formula related to vessels of a different kind to those relevant to the present case, Mr Pike proceeded to express his opinions as to the towing capacity of individual types of vessels. The shortcomings of that part of his report include the following:

Question 3

1. [36]

   Question 3 was in the following terms:

2. [37]

   In answer to that question Mr Pike stated the following:

Submissions of the defendant

1. [38]

   The primary objection taken to this part of Mr Pike’s report was that it had no relevance to any fact in issue in the proceedings. Senior counsel for the defendant submitted that it was not in dispute that there were no NAIAD vessels available for use in the relevant area at any time during 15 December 2010.

2. [39]

   Senior counsel further submitted that even if Mr Pike’s opinion in response to question 3 satisfied the test of relevance, it did not satisfy the requirements of admissibility under s. 79 of the Act. It was submitted, in particular, that Mr Pike had failed to:

Submissions of the plaintiffs

1. [40]

   In terms of the objection as to relevance, counsel for the plaintiffs took me to paragraph 39b of the further amended statement of claim. He submitted that there was clearly an issue in the proceedings that a NAIAD vessel, acting as a replacement for the Colin Winchester, could have satisfied the “readiness precaution” which had been pleaded.

2. [41]

   As to the remaining objections, counsel submitted that Mr Pike was appropriately qualified, and that his reasoning was adequately exposed.

Consideration

1. [42]

   Paragraph 39b of the further amended statement of claim pleads that a reasonable public authority in the position of the defendant, owing a duty of care to the plaintiffs, would have (inter alia) replaced the Colin Winchester and the Sea Eye with vessels capable of use as search and rescue vessels. However, the pleadings do not allege that any failure to do so was causative of the damage said to have been suffered by the plaintiffs. In these circumstances, Mr Pike’s opinions are not relevant to any pleaded issue in the proceedings.

2. [43]

   Even if they were relevant, they are in my view not admissible. Given the form in which they have been expressed, Mr Pike’s opinions appear to be based upon his having read a brochure to which he had been referred. That does not involve the application of any expertise. Moreover, his report completely fails to explain why:

Question 4

1. [44]

   Question 4 was in the following terms:

2. [45]

   In answer to that question, Mr Pike stated the following:

Submissions of the defendant

1. [46]

   Senior counsel for the defendant submitted that Mr Pike’s opinions expressed in answer to question 4 had no relevance to any fact in issue. It was pointed out that it was not in issue that there were no NAIAD vessels available for use as towing or rescue vessels at the relevant time.

2. [47]

   Further, it was submitted that whatever Mr Pike’s training study and experience might have been, it did not qualify him to express opinions regarding:

3. [48]

   It was submitted that such matters fell squarely outside the bounds of Mr Pike’s expertise, such that his stated opinions on those subjects amounted to nothing more than pure speculation.

Submissions of the plaintiffs

1. [49]

   Counsel for the plaintiffs relied upon his submissions in respect of question 3.

Consideration

1. [50]

   Mr Pike’s expertise lies primarily in the construction and capabilities of certain types of RHIBs. In answering question 4, Mr Pike purported to express an opinion about when it would have been “preferable” to have certain vessels in position, and when such vessels would have needed to be launched. In my view, those opinions go substantially beyond any expertise which Mr Pike might have.

Question 5

1. [51]

   Question 5 was in the following terms:

2. [52]

   In answer to this question, Mr Pike said the following:

Submissions of the defendant

1. [53]

   Senior counsel for the defendant submitted that Mr Pike’s opinion expressed in answer to question 5 had no relevance to any fact in issue in the proceedings. It was pointed out, in particular, that there was no pleading that the defendant owed a duty to maintain some form of search and rescue capability on Christmas Island that would have prevented SIEV 221 being shipwrecked.

2. [54]

   It was further submitted that the opinions Mr Pike had expressed went to matters that were clearly beyond his field of expertise and that whatever qualifications Mr Pike may have, they did not enable him to express an opinion regarding what search and rescue facilities would have been necessary to prevent the wreckage of SIEV 221, or minimise the resulting loss of life.

3. [55]

   Finally, senior counsel for the defendant submitted that Mr Pike’s opinions in this respect were so vague, and were expressed in such a high level of generality, that it was not possible to identify, much less test, his underlying assumptions of reasoning.

Submissions of the plaintiffs

1. [56]

   Counsel for the plaintiffs again relied on his submissions in respect of questions 3 and 4.

Consideration

1. [57]

   Based on the pleadings in the further amended statement of claim, it is no part of the plaintiffs’ case that the defendant owed a duty to have particular search and rescue facilities in place on Christmas Island at the relevant time. That is the subject matter to which this part of Mr Pike’s opinion goes. In those circumstances his opinion is irrelevant.

2. [58]

   Even if that opinion were relevant, it is beyond any expertise Mr Pike might have. Even allowing for his experience in rescue operations (which, it should be said, is expressed in somewhat vague terms), such experience does not enable Mr Pike to express opinions as to (for example) the proper location of a control centre.

3. [59]

   Further, and quite apart from any other consideration, there is no evidence that Mr Pike has ever visited Christmas Island. In these circumstances, and bearing in mind his areas of expertise, he is in no position to express the optimum location on Christmas Island of a system of detecting of SIEVs.

Question 6

1. [60]

   Question 6 was in the following terms:

2. [61]

   In response to that question, Mr Pike stated the following:

Submissions of the defendant

1. [62]

   Senior counsel for the defendant submitted that question 6, and the opinion expressed by Mr Pike in response to it, had no relevance to any pleaded issue. It was further submitted that even if it did, the matters about which Mr Pike had expressed his opinions fell outside his field of expertise, and did not demonstrate the application of any specialised knowledge based on training, study or experience.

2. [63]

   It was further submitted that even if Mr Pike was appropriately qualified to express such opinions, he had failed to articulate any process of reasoning to support them, such that they were inherently vague, lacking in any meaningful detail, and effectively amounted to nothing more than a bare conclusion.

Submissions of the plaintiffs

1. [64]

   Counsel for the plaintiffs’ submitted that the opinion expressed by Mr Pike in answer to question 6 was not a bare conclusion, but rather a “targeted piece of considered opinion”.

Consideration

1. [65]

   As I have already pointed out, Mr Pike has some experience (stated in imprecise terms) in matters of rescue. However that does not qualify him to express opinions regarding the appropriate time for the initiation of a rescue response.

2. [66]

   Further, I accept the submission advanced by senior counsel for the defendant that Mr Pike’s assertion that certain things should have been “appreciated” amounts to a bare conclusion, and is unsupported by any analysis or reasoning.

Question 7

1. [67]

   Question 7 was in the following terms:

2. [68]

   Mr Pike’s response was as follows:

Submissions of the defendant

1. [69]

   Senior counsel for the defendant submitted that the question of when the Commonwealth should have declared a SOLAS situation on 15 December 2010 was a matter that fell squarely outside Mr Pike’s recognised area of expertise.

Submissions of the plaintiffs

1. [70]

   Counsel for the plaintiffs relied upon his submissions in respect of question 6.

Consideration

1. [71]

   Once again, Mr Pike’s assertion amounts to a bare conclusion, unsupported by any analysis or reasoning.

2. [72]

   Moreover, and for the reasons I have already expressed, Mr Pike’s experience in rescue (such as it is) does not qualify him to express an opinion in these terms.

CONCLUSION

1. [73]

   For the foregoing reasons I exclude those paragraphs of Mr Pike’s report as outlined above.