Jackson v Pacific International Lines (Private) Limited (No 1)

This is an interlocutory judgment concerning the admissibility of expert reports on liability. The hearing is currently ongoing.

The plaintiff is Amie Jackson. She is represented by L King SC together with C J Callaway of counsel. Pacific International Lines (Private) Limited is the first defendant, it is represented by G Parker SC together with A Schonell of counsel. Patrick Stevedores Holdings Pty Ltd is the second defendant. It is represented by S L Flett of counsel.

On 22 August 2018, the plaintiff was injured during the course of her employment with the second defendant on the 22 August 2018 while on board ‘MV Kota Lambang’, a container ship owned and operated by the first defendant which was then berthed at Port Botany.

The plaintiff worked as part of a ‘gang’ of approximately 10 – 12 stevedores. The gang was tasked with unloading the shipping containers of the vessel following its recent arrival at the Port Botany terminal. At the time of her accident the plaintiff was working on a transverse walkway at Bay 19/21. The width of that walkway was 60cm. The containers were secured by lashing bars (heavy-duty metal rods). The lashing bars securing the containers at that location were the largest, and known as “three-high” bars, meaning that they could be used to lash together three containers. The weight of each three-high bar was in excess of 23kg. The lashing bars varied in length.

As part of the unloading process, the stevedores were required to remove the lashing bars used to secure the containers and place them into designated stowage hooks (also known as ‘stowage racks’ or ‘lashing racks’). The stowage hooks were the property of vessel and were suspended from the top rail of the walkway railing. It was the practice for Australian stevedores not to lay any lashing bars on the decks of the ship’s walkways. In addition, permanent storage racks were located aligned fore and aft on each side of the main deck, some distance away from the area where the plaintiff was working.

On the night of the plaintiff’s accident, there were three types of stowage hooks present on board the vessel. Two were of a different appearance to the type associated with the plaintiff's accident.

The plaintiff commenced her shift at 9:00pm on 22 August 2018. When the plaintiff walked along the walkway in Bay 19/21 at approximately 9:30 – 9:45pm, two of the newer loaded stowage hooks suddenly gave way, causing multiple lashing bars to fall onto her right foot, pinning her.

The stowage hooks which failed had been supplied to the first defendant on about 10 August 2018 in Singapore, approximately 12 days before the plaintiff's accident.

As to the first defendant’s liability, the plaintiff alleged:

As to the second defendant’s liability, the plaintiff alleged:

Each party called their own expert witnesses on the practice, procedure and regulations regarding safety protocol and duties relating to stevedoring. Each of the experts provided written reports and together provided a joint report. They gave concurrent evidence.

The plaintiff called Mr David Dubos (Mr Dubos) of David Dubos Consulting Pty Ltd. The first defendant called Captain Roger King (Captain King) of TMC Marine Pty Ltd. The second defendant called Mr Joel Maybury (Mr Maybury) of Gibson Minto & Aiton Pty Ltd.

Unusually, the experts gave concurrent evidence before rulings were made in relation to the admissibility of their evidence. On 16 July 2025, the expert witnesses gave evidence in conclave. Mr Dubos and Mr Maybury were present in court while Captain King was located in Kochi, India and so he gave evidence via AVL. Due to time pressures with the availability of the experts, a decision was made to deal with the admissibility of and objections to the experts’ reports after they had given concurrent evidence. During the conclave, the experts were largely in agreement with each other.

The evidence of each of the expert witnesses was objected to by each of the other parties. In this judgment, firstly I will address whether the experts’ reports comply with s 79 of the Evidence Act 1995 (Cth) (Evidence Act).

In their joint expert report and in evidence given during the conclave, the experts agreed on most issues. They were all impressive experts.

The general rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: Evidence Act s 76.

An exception is provided for expert evidence by s 79 of the Evidence Act. It relevantly reads:

In CSL Australia Pty Limited v Formosa [2009] NSWCA 363, the Court of Appeal discussed the liability of a shipowner to stevedores. Having reviewed several authorities, including judgments from the High Court and from the House of Lords, the Court of Appeal per Allsop P, Basten JA and Handley AJA agreeing stated at [69]:

In Makita (Australia) Pty Ltd v Sprowles (2011) 52 NSWLR 705, the Court of Appeal (Heydon JA, Priestly and Powell JJA agreeing) stated at [85]:

This statement was approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] per French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ (‘Dasreef’).

In Mattock v State of New South Wales (New South Wales Department of Education) (No. 1) [2021] NSWSC 477 I provided an overview of expert evidence at [7]-[8] (citations omitted):

Although it is always the case, it has been emphasised that expert opinion evidence must meet the primary threshold, being relevance — what fact in issue does the tendering party assert the evidence proves?: Dasreef at [31].

‘Specialised knowledge’ stands in distinction from ‘common knowledge’; it is knowledge which is beyond the knowledge of persons who have not, by training, study, or experience, acquired an understanding of the relevant subject matter: Honeysett v The Queen (2014) 253 CLR 122 at [23] (‘Honeysett’).

Knowledge “connotes more than subjective belief or unsupported speculation … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”: Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579 at 590 per Blackmun J quoted with approval in R v Tang (2006) 65 NSWLR 681 at [138] per Spigelman CJ and in Honeysett at [23].

So that the court is able to ascertain that an opinion is based wholly or substantially on specialised knowledge, it is necessary that the expert tendering their evidence differentiate between (1) the assumed facts upon which the opinion is based; and (2) the opinion: HG v The Queen (1999) 197 CLR 414 at [39] per Gleeson CJ (‘HG’); Honeysett at [24].

In accordance with the terms of s 79 of the Evidence Act, where expert evidence is not based wholly or substantially on their specialised knowledge, the exception will cease to operate and the opinion will not be admissible. Where experts

Finally, it is important to restate that not all evidence produced from experts is opinion evidence. “Evidence given by an expert sometimes involves nothing more than imparting knowledge and sometimes involves nothing more than giving a technical description of events and processes in which the expert was involved”: Lang v The Queen (2023) 278 CLR 323 at [5] per Kiefel CJ and Gageler J.

I will set out each of the expert’s training, study or experience to ascertain whether they have the relevant specialised knowledge, followed by my findings.

Mr Dubos provided three expert reports dated 16 May 2022 (‘Dubos Report 1’), 7 March 2025 (‘Dubos Report 2’) and 23 May 2025 (‘Dubos Report 3’). Mr Dubos is a safety engineer consulting in industrial management with qualifications in safety science, ergonomics and management. He also has extensive experience in providing expert reports for solicitors in litigation for personal injury and workers’ compensation.

As to his qualifications and experience, he holds a Graduate Diploma in Safety Science from the University of NSW and a Graduate Management Qualification from the Australian Graduate School of Management at the University of NSW. The Graduate Diploma in Safety Science included major studies in Safety Engineering and Ergonomics.

Mr Dubos has been working in the field of occupational health and safety since 1984 and has regularly conducted safety audits and safety inspections involving the identification of safety hazards in a broad range of premises. This was in relation to the rectification of injury hazards to members of the public, employees, visitors and other persons on a large range of premises managed by various organisations. Since the early 1990s, Mr Dubos has conducted safety audits involving inspections of premises, equipment and systems of work where safety hazards involve being struck by falling objects; being struck by a moving plant or vehicles such as forklift trucks; manual and materials handling systems; slip, trip and fall hazards; machinery operations and a series of other hazards.

Mr Dubos is also a Chartered Professional Member of the Safety Institute of Australia and a Registered Safety Practitioner of the Safety Institute. In addition to this, he has been a member of the Human Factors and Ergonomics Society of Australia since 1988. His principal areas of practice involve providing professional advice and applying safety engineering and ergonomic management techniques for private enterprise and government, since 1984. He was formerly the Business Manager Risk Management on a national basis for MMI Insurance and Risk Management Consultant for MIRA Consultants and GIO Australia Safety. He has been Managing Director of David Dubos Consulting Pty Ltd for over 25 years.

For the purpose of his reports, Mr Dubos relies on a conference he had with the plaintiff on 13 April 2022 and various documentary evidence.

Counsel for the first defendant submitted that Mr Dubos did not have the requisite specialised knowledge based on his training, study or experience. It was submitted that although Mr Dubos was an industrial safety consultant involved in risk minimisation and although he may have experience of the sort of accident that occurred, he did not have the requisite expertise in relation to a vessel. Counsel submitted that Mr Dubos inappropriately treats the ship as “some sort of floating work platform” (T265 [22]-[30]). All three of Mr Dubos’ reports were objected to in whole.

Counsel for the plaintiff submitted that Mr Dubos does have the requisite specialised knowledge to write an expert report on liability in regard to the vessel that was in port at Botany Bay when the accident occurred. It was said that he had the requisite expertise to analyse the cause of the failing of the portable lashing rack/hooks. It is noted that Mr Dubos has only been on two conveyor ships and written two reports on other vessels that have been berthed at Port Botany (T264 [11]).

Captain King provided a report dated 5 February 2025. He holds a current Certificate of Competency as a Master Mariner, issued by the Australian Maritime Safety Authority. This certificate is unlimited for size of vessel and area of operation. To obtain professional qualifications as a seafarer, he studied a Diploma of Nautical Science at the Australian Maritime College.

He is also a Member of Lloyds Panel of Special Casualty Representatives. He also holds Certificates in Maritime Salvage Law, Marine Warranty Surveying and Oil Spill Response. He has served in various ranks including as Master on a range of blue water vessels including bulk carriers, container vessels, RO-ROs, general cargo vessels, anchor handling tugs and supply vessels, harbour tugs and offshore tugs/survey vessels.

At paragraph 1.10 of his report dated 5 February 2025, Captain King states:

He maintains the following professional memberships: Company of Master Mariners Australia; Associate Fellow of The Nautical Institute; International Institute of Marine Surveyors; Permanent International Association of Navigational Congresses (PIANC); and Master Mariners Association of Tasmania.

From 1984 to 1998 Captain King worked for BHP on container ships (T193 [42]-[45]). For 18 months he was the second officer and then chief officer on a ‘RORO’ ship (a ‘roll-on/roll-off’ ship designed to carry wheeled cargo). He then joined a six-crane, four-hold ship first, as a second officer and then as the chief officer. This ship would transit between various Australian and New Zealand ports (T193 [49]-194 [6]). In 1987 as a deck cadet, he completed a round-the-world voyage on a ship called the Australian Venture (T194 [8]-[12]). Captain King has personally observed lashing bars fall to the deck from an overly full rack (T198 [48]-199 [14]).

Captain King has never sailed on the MV Kota Lambang or any of her sister ships (T197 [9]-[10]). Captain King prepared his report based on documentary evidence.

The plaintiff objects to the whole of Captain King’s report on the basis that paragraph 1.10 (the substance of which is produced above) demonstrates that he does not have the relevant expertise. If Captain King’s reports are admitted into evidence, counsel for the plaintiff objects to paragraphs of Captain King’s reports, citing non-compliance with s 79 of the Evidence Act on the bases that they contain statements of law, that they are irrelevant and that they are beyond his expertise.

Mr Maybury provided four reports dated 30 August 2018 (‘Maybury Report 1’), 26 March 2025 (‘Maybury Report 2’), 8 May 2025 (‘Maybury Report 3’) and 19 May 2025 (‘Maybury Report 4’). In Mr Maybury’s curriculum vitae which is annexed to an affidavit of his dated 10 July 2025, he lists his qualifications as including: Diploma of Marine Operations/Surveying; Advanced Diploma in Cargo Surveying — Expert Stowage Lashing & Securing Surveys; Advanced Diploma in Cargo Surveying — Expert Heavy Lift & Project Cargo Inspection; Diploma of Stevedoring Operations; Certificate III & IV in Business; High Risk Licenses in Crane — CB, CO, CP, in Dogging — DG and in Forklift — LF.

Mr Maybury is also part of the Australian Institute of Marine Surveyors. He has extensive frontline and hands-on stevedoring experience. He began his frontline and hands-on involvement with stevedoring in 1995 and concluded it in 2016 when he took a position with Gibson Minto & Aiton Pty Ltd (a marine and cargo surveyor) in a consultancy capacity.

On 23 August 2018 (the day after the incident), Mr Maybury attended the ship in order to conduct an investigation but did not inspect the racks that failed as they were not made available to him (T215 [30]-[49]).

After reading and assessing the experts’ curricula vitae, reports, and joint report and carefully observing them when they gave expert evidence and were cross-examined, I formed the view that all experts had the requisite training, study and experience and that their opinions were substantially based on that knowledge. Further, the experts set out their paths of reasoning when coming to each of the conclusions they reached.

While Mr Dubos’ experience is based on workplace health and safety, the plaintiff’s injuries occurred when the lashing hooks failed, causing the lashing bars to fall on the plaintiff’s lower leg and foot, seriously injuring her. Mr Dubos is well-qualified to provide an opinion of the accident. In these circumstances, Mr Dubos’ reports are admissible.

In the contingency that the reports were generally admitted, each of the parties raised specific objections to various paragraphs and sentences of each of the expert reports. Those objections are dealt with below.

The specific objections are numerous and often lack merit.

The first defendant objects to sentences four, six, seven and nine of par 13 on the grounds that it is hearsay and prejudicial. Paragraph 13 is as follows, the sentences objected to are underlined:

Evidence is not admissible under the hearsay rule if that evidence is of a previous representation made by a person and evidence of that representation is adduced to prove the existence of fact intended to be asserted by the representation: s 59(1) of the Evidence Act. The metrics referred to by Mr Dubos in par 13 are not adduced to prove that those metrics correctly describe the incident. They are adduced to make clear the foundations on which his opinion is formed. Mr Dubos explicitly disavows any attempt at calculating the exact force with which the plaintiff was hit: “we do not have a precise weight for each lashing bar that struck the Plaintiff” (at par 19). Therefore, they are not caught by the hearsay exclusion. Nor is the evidence prejudicial, as it does not seek to prove the details of the accident but simply sets out the assumptions relied on to form the expert opinion. I do not give those statements weight in proving the details of the accident.

The first defendant objects to pars or parts of pars 64-65, 69, 77, 82, 86, 91, 93-94, 105, 108, 113, 117, 122, 124, 127-128 in their entirety on the bases that they do not fall within the s 79 exception, that Mr Dubos has a lack of expertise, and that there is an “insufficient/no path of reasoning” demonstrated. Further, I note that the first defendant repeatedly objects on the basis that the opinion is “not opinion evidence within s 79”; however, it does not specify why or how that is a ground of objection independent of the two mentioned in the preceding sentence. Those objected-to paragraphs are as follows. Where only part of the paragraphs is objected to, I underline those parts:

As to the recurrent objection that Mr Dubos does not have the requisite expertise (the necessary ‘specialised knowledge’ based on ‘training, study or experience’), I have already determined that all experts have the necessary specialised knowledge based on training, study or experience. Those objections which rearticulate that objection are otiose. I will only deal with grounds of objection not relating to lack of expertise (specialised knowledge based on training, study or experience).

Paragraphs 64-65 of the first report of Mr Dubos are objected to on the basis that there is “insufficient/no path of reasoning”. However, in pars 62-63 Mr Dubos sets out the findings of Maybury Report 1 (created 8 days after the incident) as to the reason for the failure of the lashing racks. It is based primarily on these findings that Mr Dubos forms the opinion expressed in pars 64-65. The objection is dismissed.

Paragraph 77 is objected to on the same basis. However, in pars 66-76 Mr Dubos sets out the process of risk assessment and hazard control and the good practice thereof. It is against this standard that he comes to the opinion expressed in par 77. He says that given the nature of the offending lashing racks themselves, a proper risk assessment and hazard control process would have identified them as hazardous and not fit for purpose. The objection is dismissed.

The first sentence of par 82 is objected to on the same basis. However, Mr Dubos sets out in pars 78-81 good practice relating to the management of risks posed by falling objects. It is against this standard that he comes to the opinion expressed in the first sentence of par 82. I note that Mr Dubos opinions are caveated to put the reader on notice that the opinions are formed only on the information provided to him. It is open to the defendants to debase the opinions, for example, by proving that the good practice set out by Mr Dubos was adhered to, or that it is an erroneous account of good practice. The objection is dismissed.

Paragraph 86 is objected to on the same basis. However, in par 85 Mr Dubos sets out the good practice relating to the securing of loads and it is against this standard that he forms the opinion expressed in par 86. The objection is dismissed.

The third sentence of par 91 is objected to on the same basis. Again, in par 90, Mr Dubos sets out the good practice relating to the provision of safe work environment. It is against this standard that he forms the opinion expressed in the third sentence of par 91. The objection is dismissed.

Paragraphs 93-94 are objected to on the same basis again. However, yet again, in par 92 Mr Dubos sets out the good practice relating to the management of risks relating to falling objects. It is against this standard that he forms the opinion expressed in pars 93-94. The objection is dismissed.

Paragraphs 105, 108, the second sentence of pars 113 and 117 are objected to on the same basis. The good practice relating to access and egress is set out in pars 101-104, 106-107, 109-112 and 114-116. It is against this standard that Mr Dubos formed the opinions expressed in objected-to paragraphs. The objections are dismissed.

Paragraphs 122, 124 and 127-128 are objected to on the same basis. However, pars 120-121, 123 and 125-126 set out the statutory duties owed by the first defendant. The opinions expressed in pars 122, 124 and 127-128 are mostly rehearsals of formerly expressed opinions but merely juxtaposed to the statutory duties of the first defendant. It is against this standard that Mr Dubos comes to his final conclusions. The objections are dismissed.

All of the specific objections to Dubos Report 1 are dismissed.

This second report of Mr Dubos was created for the specific purpose of responding to the report of the first defendant’s expert, Mr King.

The first defendant objects to pars or parts of pars 19, 20, 21, 25, 26, 27, 29, 30, 33, 34, 35, 36, 37, 43, 45, 46, and 47-48 on various bases including that they are irrelevant, argumentative, and not within the s 79 exception. Those paragraphs are as follows. Where only part of the paragraphs is objected to, I underline those parts:

The last sentence of par 19 is objected to on the basis that it is irrelevant and that it is an opinion. That sentence contests some statements by Captain King in his report. As will be seen below, those paragraphs of Captain King’s which are contested have been admitted into evidence, so it is natural that an analogous expert’s issue with those statements also be admissible. The objection is dismissed.

Paragraph 20 is objected to on the basis that it is “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that it contains “insufficient/no path of reasoning”. Paragraph 20 sets out purely factual matters. It is not an opinion. Those factual matters are necessary to make the report comprehensible. The objection is dismissed.

The third sentence of par 21 is objected to on the basis that it is hearsay and prejudicial. That sentence is hearsay, the objection is upheld.

The second and third sentences of par 25 are objected to on the bases that it is “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that it contains “insufficient/no path of reasoning”. Those sentences are lay opinion and are merely combative. They are not an opinion based on specialised knowledge. The objection is upheld.

Paragraphs 26-27 are objected to on the same bases. Paragraph 26 contains an opinion about the capacity of the first defendant to oversee the infrastructure of its ship. It is an opinion based on Mr Dubos’ specialised knowledge as to worksite safety. The objection is dismissed. Paragraph 27 contains an opinion on the capacity of the second defendant to take care for its employee. It is an opinion based on Mr Dubos’ specialised knowledge as to worksite safety. The objection is dismissed.

The third sentence of par 29 and the second sentence of par 30 are objected to on the basis that they are irrelevant. As will be seen below, I have held that the parts of Captain King’s reports to which those paragraphs refer are inadmissible. For this reason, the paragraphs in response are irrelevant and hence, inadmissible. The objections are upheld.

The third and fourth sentences of par 33 are objected to on the bases that they are irrelevant, ‘opinion’, argumentative, and that Mr Dubos has a lack of expertise. Those sentences comment on the capacity of the first and second defendants to secure the plaintiff’s safety. Such an opinion is clearly relevant, and Mr Dubos has the requisite specialised knowledge. The objection is dismissed.

The second and third sentence of par 34 are objected to on the bases that they are irrelevant, ‘opinion’, argumentative, and that Mr Dubos has a lack of expertise. Again, those sentences proffer an opinion on the capacity of the second defendant to ensure the safety of its employee. That is clearly relevant and Mr Dubos, a safety expert, has the requisite knowledge. The objection is dismissed.

The last two sentences of par 35 and the whole of pars 36-37, 43, 45-48 are objected to on the bases that they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, that it contains “insufficient/no path of reasoning”, and they are “argumentative”. Those paragraphs deal with Captain King’s interpretation of the Work Health and Safety (Managing Risks in Stevedoring) Code of Practice 2017 (Cth) (the Code) and the application of that interpretation to the facts of the case. As will be seen below, although some of Captain King’s explicit legal analysis has been excluded, much has been left in where it is inextricable from his factual opinion evidence (for example in par 6.3.9 of his report). Mr Dubos sets out only so much law as is necessary to deal with Captain King’s report and for that reason, the objections are dismissed.

The objections to the third sentence of par 21, to the second and third sentences of par 25, to the third sentence of par 29 and to the second sentence of par 30 of Dubos Report 2 are upheld. The rest are dismissed.

The first defendant objects to pars 27 and 44 on the basis that they are hearsay and prejudicial. It objects to pars or parts of pars 23, 26-27, 31, 33-35, 38-39, 41, 44, 52-53 and 55-56 on the bases that Mr Dubos does not have the requisite expertise or that the opinions expressed reveal an insufficient or no path of reasoning. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

Paragraph 23 is objected to on the basis that it is speculative and “not opinion evidence within s 79”. That paragraph sets out a counterfactual scenario of what could have occurred had the lashing racks been assigned a ‘safe working load’. As a safety expert, Mr Dubos is competent to give an opinion on this matter. The objection is dismissed.

Paragraph 26 is objected to on the basis that Mr Dubos has a lack of expertise and that the conclusion shows no path of reasoning. That paragraph deals with the relationship between the first defendant, its policy and actions with regard to the lashing rack and the plaintiff’s injury. As a safety expert, Mr Dubos is competent to give an opinion on this matter. The objection is dismissed.

Paragraph 27 is objected to on the basis that is it hearsay and prejudicial. The paragraph is not hearsay as it is not adduced to prove the existence of the fact sought to be proved by the section of Mr Maybury’s report referred to. It is provided to provide context and background for the following paragraphs. The objection is dismissed.

Paragraph 31 is objected to on the basis that Mr Dubos has a lack of expertise and that the opinion displays an “insufficient/no path of reasoning”. Mr Dubos has qualifications in safety engineering and also in worksite safety. He clearly has the requisite specialised knowledge to make a comment on the nature of the lashing rack provided by the first defendant and whether, in all the circumstances, it was providing a safe workplace. The objection is dismissed.

The phrase “was not fit for purpose” in par 33 is objected to on the basis that Mr Dubos has lack of expertise and that no path of reasoning is demonstrated. For the same reason as given above, this objection is dismissed.

The phrase “was specified and supplied as deficient in reinforcing strength and” in par 34 is objected to on the bases that Mr Dubos has a lack of expertise and that no path of reasoning is demonstrated. For the same reasons as given above, the objection is dismissed.

The phrase “held about 30 lashing bars, which as has been pointed out in my previous reports, is a significant weight” in par 35 is objected to on the bases that it is hearsay, that Mr Dubos has a lack of expertise and that there is “insufficient/no path of reasoning”. I agree that the first half of this sentence in par 35 is hearsay, but the second half is not. Therefore, only the objection to the words “held about 30 lashing bars” is upheld. The rest is dismissed.

Paragraphs 38-39 and 41 are objected to because they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that they reveal “insufficient/no path of reasoning”. Those paragraphs set out how the first defendant should have behaved with respect to the lashing racks. For the reasons already expressed, these objections are dismissed.

Paragraph 44 is objected to on the basis that it is hearsay. The objection is dismissed. The quotation is not adduced to prove its contents, but rather to comment on, and is not therefore hearsay. The objection is dismissed.

Paragraphs 52–53 are objected to on the basis that it is “not opinion evidence within s 79”. This is a serious failure to particularise an objection. The objection is dismissed.

Paragraphs 55-56 are objected to on the bases that they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that they reveal “insufficient/no path of reasoning”. Again, for the reasons given above, the objections are dismissed.

The objection to the words “held about 30 lashing bars” in par 35 is upheld, all of the other objections to Dubos Report 3 are dismissed.

The plaintiff objects to pars or parts of pars 1-5, 2.3.3-2.3.6, 2.4.1-2.4.2, 3.3.12-3.3.15, 4.1.1-4.2.12, 4.3.12-4.3.13, 4.3.15-4.3.16-4.3.18, 4.4.1-4.4.8, 5.1.1-5.4.10, 6.1.2-6.1.7, 6.2.1-6.2.3, 6.2.5-6.2.10, 6.3.1-6.3.9, and 6.4.1-6.4.3 on the various bases that they contain statements of law, that they are inaccurate, that they are irrelevant or that they are beyond the expert’s expertise. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

The final sentence of par 1 and the whole of par 2 are objected to that they are statements of law. I agree that they are statements of law. However, it is my view that those statements are not made to prove their accuracy, but to contextualise Captain King’s reports and to make known the standards against which he forms his opinions. The objections are dismissed.

The second sentence of par 3 is objected to on the basis that it is inaccurate. So, I make an order under s 136 of the Evidence Act to limit the use of that assertion to being the factual basis on which Captain King forms his opinions. The objection is dismissed.

The final sentence of par 4 is objected to on the basis that it is irrelevant. I do not see how it is irrelevant as it bears on the question of whether the second defendant breached their duty of care to the plaintiff. The objection is dismissed.

The final sentence of par 5 is objected to on the basis that it is a “non-expert conclusion”. That sentence is not opinion evidence, it is merely a statement of fact. Therefore, the exclusionary rule does not apply. The objection is dismissed.

Paragraphs 2.3.3-2.3.6 are objected to on the basis that they are irrelevant. I agree with this view. It is not clear on what basis the second defendant’s ‘Terms and Conditions’ are relevant — do they form part of its employment contract with the plaintiff? Do they enlarge or define the second defendant’s duty of care? The objection is upheld.

Paragraphs 2.4.1-2.4.2 are objected to on the basis that they are irrelevant. For the same reasons as above, I agree. The objection is upheld.

Paragraphs 3.3.12-3.3.15 are objected to on the basis that they are irrelevant. These paragraphs record events which occurred after the injury, and therefore, in this factual matrix, are irrelevant. The objection is upheld.

Paragraphs 4.1.1-4.2.12 are objected to on the basis that they are irrelevant. Those paragraphs contain a general overview of container stowage. I agree that those paragraphs are irrelevant and unnecessary to understand Captain King’s report. The objection is upheld.

Paragraph 4.3.12 is objected to on the basis that it contains a non-expert conclusion. I agree, it is lay opinion; that is, not formed from specialised knowledge based on training, study or experience. The objection is upheld.

Paragraph 4.3.13 is objected to on the basis that it is “beyond expertise”. In cross-examination, Captain King conceded that he had no welding or fabricating qualifications, and that he lacked expertise to comment on welds (T205-206). The objection is upheld.

The last sentence of par 4.3.15 is objected to on the basis that it is “beyond expertise”. Although this is true in a sense, it could more accurately be described as lay opinion. The objection is upheld.

Paragraph 4.3.16 is objected to on the basis that it is “beyond expertise”. The objection is upheld on the basis that it is lay opinion.

The final sentence of and the phrase “by the stevedores” in par 4.3.17 is objected to on the basis that they are “beyond expertise”. I do not see how this is the case given that Captain King is an expert mariner and such an opinion is clearly based on his specialised knowledge as such. The objection is dismissed.

Paragraph 4.3.18 is objected to because it is “not expert opinion and irrational”. At present, I do not see why the opinion expressed in par 4.3.18 is irrational. Further, an opinion that a shipworker should have acted in a certain way clearly emerges from the specialised knowledge of an expert mariner. The objection is dismissed.

Paragraphs 4.4.1-4.4.7 are objected to on the basis that they are irrelevant. Those paragraphs contain an overview of container discharge and loading operations and outline the responsibilities of certain crew members in this process. The objection is dismissed but for the quotation in par 4.4.6 from the second defendant’s ‘Sydney Autostrad Terminal Welcome Information for Vessels’, which is irrelevant; for that part, the objection is upheld.

Paragraph 4.4.8 is objected to on the basis that it is a legal opinion. I do not think that par 4.4.8 contains a legal opinion, although it could be read that way. Rather, it explains general practice on container ships in relation to duties and responsibilities. Captain King is competent to provide an opinion on that point, and that opinion is relevant. The objection is dismissed.

Paragraphs 5.1.1-5.4.10 are objected to on the basis that they contain a legal opinion. I agree that those paragraphs contain an extensive and impermissible legal exegesis beyond what could be considered necessary to contextualise Captain King’s evidence. Captain King’s view of the law in this regard is irrelevant and therefore inadmissible. The objection is upheld.

Paragraph 6.1.2 is objected to on the basis that it contains a legal opinion. I agree, Captain King is carrying out a process of statutory construction. His view of the meaning of the law is irrelevant and so inadmissible. The objection is upheld.

Paragraph 6.1.3 is objected to on the bases that it contains a legal opinion and is beyond expertise. The paragraph attempts to mark out the metes and bounds of the second defendant’s common law duty of care. Captain King’s legal opinion on this matter is irrelevant and hence inadmissible. The objection is upheld.

Paragraph 6.1.4 is objected to on the basis that it is irrelevant. That paragraph deals with Captain King’s interpretation of the allocation of responsibility between the first and second defendants in his capacity as a master mariner. The objection is dismissed.

Paragraph 6.1.5 is objected to on the basis that it is irrelevant. I agree that the opinion expressed in par 6.1.5 is irrelevant and teeters on legal exegesis. The objection is upheld.

Paragraph 6.1.7 is objected to on the basis that it is a legal opinion and that it is irrelevant. I disagree that par 6.1.7 contains a legal opinion, rather, it contains Captain King’s opinion, as a master mariner, on the structure and division of responsibility of peoples involved in container shipping. The objection is dismissed.

The last sentence of par 6.2.1 is objected to on the basis that it is a matter of legal construction and beyond expertise. Although the opinion expressed in that sentence involves legal analysis, it also involves questions of fact the determination of which almost necessarily require marine expertise. The objection is dismissed.

Paragraph 6.2.2 is objected to on the basis that it is irrelevant. I disagree with this contention. Captain King is setting out the regular practice surrounding the stowage of lashing bars. This is relevant to the case and requires the assistance of expert evidence. The objection is dismissed.

Paragraph 6.2.3 is objected to on the basis that it is “beyond expertise”. That paragraph describes the relationship between the first and second defendants with respect to the lashing racks. I do not see how that is beyond Captain King’s expertise. The objection is dismissed.

Paragraph 6.2.5 is objected to on the basis that it is beyond expertise. It considers a counterfactual scenario of what would have happened had the second defendant conducted themselves properly. This is clearly within Captain King’s expertise as an expert mariner. The objection is dismissed.

Paragraph 6.2.6 is objected to on the basis that it is irrelevant. That paragraph discusses handrails and the hanging of lashing racks from them. Captain King disapproves of this practice. It is not clear at this stage whether this is relevant to the issues at hand, but it probably is. As a result, the objection is dismissed.

Paragraph 6.2.7 is objected to on the bases that it is beyond expertise and irrelevant. The paragraph contains a counterfactual scenario of what would have happened had appropriate directions been given with respect to the lashing racks. This is relevant to causation and is clearly within Captain King’s expertise. The objection is dismissed.

Paragraph 6.2.8 is objected to on the basis that it is beyond expertise. The paragraph contains a comparison of the different lashing racks on board their ship, and particularly their structure and composition. It speculates on the reason for failure of the weld. Captain King, as noted above, does not have specialised knowledge in welding. The objection is upheld.

Paragraphs 6.2.9-6.2.10 are objected to on the basis that they are speculation. That an opinion is speculative is not a ground for inadmissibility. At most, the fact that an opinion is speculative could go to relevance (evidence is relevant if it could rationally affect the assessment of the probability of a fact in issue: s 55 Evidence Act). The opinions are not so speculative that they are irrelevant. The objections are dismissed.

Paragraphs 6.3.1-6.3.9 are objected to on the basis that they are not expert opinion. Those paragraphs contain an engagement with the first report of Mr Dubos and also contain legal analysis. It is not explained why these paragraphs are not expert opinion. They contain legal analysis, but it seems to me, only so much to engage with the report of Mr Dubos. The objection to those paragraphs is dismissed.

Paragraphs 6.4.1-6.4.3 are objected to on the basis that they contain conclusions beyond expertise. Those paragraphs contain Captain King’s analysis on good practice with respect to lashing operations. He is well-qualified to provide analysis on this, and this is clearly relevant to the case. The objection is dismissed.

The objections to pars 2.3.3-2.3.6, 2.4.1-2.4.2, 3.3.12-3.3.15, 4.1.1-4.2.12, 4.3.12-4.3.13, 4.3.15-4.3.16, 4.4.1-4.4.7, 5.1.1-5.4.10, 6.1.2-6.1.3, 6.1.5 and 6.2.8 of the King Report are upheld. The rest are dismissed.

The first defendant objects to parts of the section entitled ‘Cause of Incident’ and to parts of the section entitled ‘Remarks’ on the bases that Mr Maybury ventures opinions outside his expertise and that no path of reasoning is revealed. Those sections are reproduced below. The sentences objected to are underlined. I have added paragraph numbers for convenience but note they do not correspond with the numbering in the actual report:

The first defendant seeks an order under s 136 of the Evidence Act to limit the use of the impugned sentence in par 1 to demonstrating the author’s observation. However, the objected-to sentence begins with “it appears”, so it is already internally limited to the author’s own observation. No order will be made.

Paragraphs 2 and 3 are objected to on the basis that Mr Maybury has a lack of expertise or that there is “insufficient/no path of reasoning”. Mr Maybury has extensive qualifications which have given him specialised knowledge to be able to form opinions on the quality of lashing racks (with which pars 2-3 concern themselves). I draw attention to two particular qualifications of his: Diploma in Cargo Surveying — Expert Stowage Lashing & Securing Surveys; and Advanced Diploma in Cargo Surveying — Expert Heavy Lift & Project Cargo Inspection. As to the contention that there is an insufficient or no path of reasoning, Mr Maybury clearly states in the preceding paragraph that his opinion is based on physical inspection of the ship and the lashing racks. The objections are dismissed.

Paragraph 6 is objected to on the bases that it is not an opinion within s 79, that Mr Maybury has a lack of expertise, that there is “insufficient/no path of reasoning” and that it is prejudicial. Mr Maybury attended the ship; and there is ample material setting out the bases on which he comes to the conclusion that the racks should be removed. I do not see why the conclusion is prejudicial. The objection is dismissed.

All objections to Maybury Report 1 are dismissed.

The first defendant objects to pars or parts of pars 2.1-2.7, 3.19-3.21, 3.22-3.25.1, 4.3.1, 4.8.1, 4.10.1, 4.15.1, 4.16.1 and 5.2 on the various bases that they are speculative, that Mr Maybury does not have the relevant expertise, or that the paths of reasoning through which the opinions were achieved are not adequately set out. Paragraph 3.20 is objected to on the basis that it is hearsay. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

Paragraphs 2.1-2.7 are objected to on the bases that they contain opinion “not within s 79”, that Mr Maybury has a lack of expertise, and that there is “insufficient/no path of reasoning”. As expressed, Mr Maybury has ample specialised knowledge. Paragraphs 2.1-2.7 are mostly replicated from the first report of Mr Maybury. I dismissed the objections made in that context, and the objections are also dismissed here.

Paragraphs 3.19-3.25.1 deal with the first report of Mr Dubos. Many of the paragraphs therein are objected to on the basis that they are hearsay. However, they are adduced to be commented on, not to prove the truth of their contents. They are not hearsay. The objections to pars 3.20, 3.21, 3.22, 3.23, 3.24 and 3.25 are dismissed.

The first defendant objects to pars 3.19, 3.20.1, 3.22.1, 3.23.1, 3.25.1 on the bases that they are not expert opinion evidence within s 79, that Mr Maybury has a lack of expertise, and that there is an “insufficient/no path of reasoning”. Those paragraphs comment on passages from Mr Dubos’ first report. These objections are all dismissed.

Paragraph 4.3.1 is objected to on the same bases. I have held that the passage of Captain King’s report on which it comments (namely, par 6.1.5) is inadmissible. It follows that par 4.3.1 is also inadmissible. The objection is upheld.

The last sentence of par 4.8.1 is objected to on the basis that it is not expert opinion evidence within s 79. The plaintiff fails to identify why this is the case. The objection is dismissed.

Paragraph 4.10.1 is objected to on the bases that it is not expert opinion evidence within s 79, that Mr Maybury has a lack of expertise, and that there is an “insufficient/no path of reasoning”. That paragraph comments on the structural design of the lashing rack. Mr Maybury has extensive seafaring and cargo-related experience. He is clearly competent to give an opinion in these terms. The objection is dismissed.

Paragraph 4.15.1 is objected to on the basis that it is ‘speculative, conclusion, opinion not within expertise’. The paragraph reconstructs what might have happened when the first defendant was procuring the lashing racks. I agree that this paragraph is so speculative that it is irrelevant. The objection is upheld.

Paragraph 4.16.1 is objected to on the same basis. Again, I agree that the paragraph is so speculative that it is irrelevant. The objection is upheld.

Paragraph 5.2 is again objected to on the same basis. I agree that the paragraph is so speculative that it is irrelevant. The objection is upheld.

The objections to pars 4.3.1, 4.15.1, 4.16.1 and 5.2 of Maybury Report 2 are upheld. The rest are dismissed.

The plaintiff objects to parts of questions and answers 1, 6-8, 10-13, 18 and 20. The first defendant objects to the whole of questions and answers 1 (except Captain King’s opinion), 2, 5, 6-10 (except Captain King’s opinion) and to Mr Dubos’ answers to questions 14, 17, and 19. Those questions and answers are as follows. The plaintiff’s objections are in bold while the first defendant’s objections are underlined:

The plaintiff did not provide reasons for its objections to the joint report (in bold).. As to the defendant’s objections, the formulaic ‘opinion not within s 79, lack of expertise, insufficient/no path of reasoning’.

The plaintiff’s objection to Captain King’s statements in response to question 1 (namely, “[t]here is a latent defect in the manufacture”; and “[t]his constituted a latent defect in the manufacture process”) is upheld. As noted above, Captain King does not have specialised knowledge in welding, nor do I think the knowledge normally held by a master mariner is such as to allow Captain King to comment so specifically on the cause of the failure of the lashing hook.

The plaintiff’s objection to Captain King’s response to question 6 is dismissed. Captain King comments on the good practice which can be expected of a ship owner when sourcing and fitting new equipment. This is clearly within his expertise and of relevance to the case. For the same reason, the objection to Captain King’s response to question 7 is also dismissed.

The plaintiff objects to the first sentence of Mr Maybury’s response to question 8. The plaintiff has not explained the basis of this objection. It is dismissed.

The plaintiff also objects to Captain King’s third answer to question 8. Again, the plaintiff has not explained the basis of this objection and I do not see why it should not be admitted. It is an opinion within the expertise of a master mariner. The objection is dismissed.

The plaintiff objects to parts of Captain King’s response to question 10. The plaintiff has not explained the basis of the objection. Those parts of Captain King’s report relate to the good practice relating to the introduction of new equipment onto a vessel. The objection is dismissed.

The plaintiff objects to most of Captain King’s response to question 11. That response treats the possible ways persons such as the first and second defendants could have or should have responded to the legal requirements of the Code. Although this contains some legal analysis, it is mostly a question of fact requiring expert opinion. The objection is dismissed.

The plaintiff objects to parts of Captain King’s response to question 13. That response refers to the stevedoring Code in response to a question of whether a certain course of action was safe. Although Captain King’s answer involves perhaps a little too much legal analysis, it provides important factual matters and expert opinion. In such a narrowly confined situation, the question of whether the Code covers a certain situation is a mixed question of fact and of law. The objection is dismissed.

The plaintiff objects to most of Captain King’s response to question 18. Captain King gives his opinion on what are the roles and responsibilities of certain crew members in respect to the fitting of such an item of equipment as a lashing hook. This is within his expertise as a master mariner. The objection is dismissed.

The plaintiff objects to two part of Captain King’s response to question 20. I cannot see on what basis those objections are made. It is my view that the opinion expressed in them are within his expertise. The objection is dismissed.

The first defendant objects to the entirety of Mr Dubos’ and Mr Maybury’s answers to question 1. Both those experts have the requisite specialised knowledge to comment on the failure of the lashing hooks. The objection is dismissed.

The first defendant objects to the entirety of the answers to question 2. They are objected to on the basis of, among other things, relevance. The named ‘Store Requisition’ has not been put before the Court. Nor has the Court’s attention been drawn to the named photograph. This question and answers are irrelevant. The objection is upheld.

The first defendant objects to the entirety of the answers to question 5. The answers to question 5 are somewhat unimpressive. They form opinions which a lay witness could have formed, but for particular details. However, certain aspects are enlightening. The objection is dismissed.

The first defendant objects to the entirety of Mr Dubos’ and Mr Maybury’s answers to questions 6-10. Those questions and answers deal with the good practice regarding the ordering and fitting of equipment such as the lashing rack. Mr Dubos and Mr Maybury both have the necessary specialised knowledge to form opinions on these matters and to comment on what would have been good practice and the result of such good practice. The objections are dismissed.

The first defendant objects to Mr Dubos’ answer to question 14. That question and answer related to the normal practice of stevedores. I agree that Mr Dubos’ expertise does not extend to the actual practice of stevedores regarding lashing racks and their storage. The objection is upheld.

The first defendant objects to Mr Dubos’ answer to question 17. That question and answer relate to the failure of the lashing hooks. Mr Dubos has qualifications in safety engineering. He clearly has the specialised knowledge to form such an opinion. The objection is dismissed.

The first defendant objects to Mr Dubos’ answer to question 19. That question refers to the apportionment and allocation of responsibility between the ship’s crew and the stevedores. As mentioned, Mr Dubos is not a maritime expert. He does not have the requisite specialised knowledge to comment precisely, in this way, on the relationship between stevedores and the ship’s personnel.

The plaintiff’s objection to the two clauses of Captain King’s statement in response to question 1 is upheld. The rest are dismissed.

The first defendant’s objections to the entirety of the answers to question 2, to the answer of Mr Dubos to question 14 and to the answer of Mr Dubos to question 19 are upheld. The rest are dismissed.