Menz v Wagga Wagga Show Society Inc (No 1)

The plaintiff in these proceedings sues the defendant for damages she sustained in an incident on 28 September 2012 when she was effectively crushed by a horse that she was riding at the Wagga Wagga Agricultural Show. It is the plaintiff’s case that her horse was “spooked” by a loud noise created by children in the near vicinity which caused her horse to fall. There appears little doubt on the evidence given thus far that the horse was spooked in that way, and that the plaintiff suffered significant injuries which are not (and are not likely to be) in issue. There is, however, a significant issue in terms of liability.

The plaintiff has qualified Mrs Debbie Smyth, a retired horse trainer and riding instructor, as an expert and has served a report dated 2 September 2016. Senior counsel for the defendant has taken objection to parts of that report.

In (1) of her report Mrs Smyth details her qualifications in the following terms:

In (2), Mrs Smyth lists a number of her achievements which, on any view of it, are extensive. They include:

Ms Smyth’s riding experience ranges from stock work to national competition. Her general experience includes racehorse training and educating, dressage, sporting events, trick riding and trail riding. As an adjunct to this experience, Mrs Smyth has trained and mentored students in all aspects of horse riding and management, and has instructed and conducted riding schools at pony clubs and adult riding clubs throughout Australia. She has also judged at agricultural and all breed horse shows throughout New South Wales, the Australian Capital Territory and Queensland, and has trained numerous metropolitan and regional race winners.

The specific objections taken by senior counsel for the defendant to Mrs Smyth's report are as follows.

Commencing at (7) under the heading "Executive Summary" Mrs Smyth said the following:

Commencing at (24) under the heading "Answers to your questions,” Mrs Smyth was asked:

She responded:

At (25), in answer to the same question, she said:

Commencing at (26) she was asked:

She responded:

At (27) she stated:

At (28) she stated:

At (29), having made reference to the size of the warm up area, she said:

Commencing at (30) she was asked:

She responded:

At (31) she stated:

At (32) she stated:

At (33) she stated:

At (34) she stated:

At (35) she was asked:

She responded:

At (36) she was asked:

She responded:

She continued at (37) and (38):

Under the heading, "Concluding comments" (commencing at (39)) Mrs Smyth said the following:

She continued at (40):

Finally, at (41) she said:

Although the objections taken by senior counsel for the defendant were expressed in a number of separate propositions, they essentially boil down to two matters, namely that Mrs Smyth is not properly qualified to opine in respect of:

It is submitted, in particular, that she is not qualified to express opinions on what agricultural show officials are there to do, or the behaviour of children.

Senior counsel for the plaintiff did not accept either of those propositions and submitted that when Mrs Smyth’s report was read as a whole, and when her qualifications were taken into account, she was appropriately qualified to express all of those opinions.

There is absolutely no doubt that Mrs Smyth is an experienced horse person, and is experienced in (amongst other things) the behaviour of horses. The issue which arises is whether or not those opinions to which objection has been taken are based upon her field of specialised knowledge as I have outlined it.

The admissibility of expert opinion evidence is determined by reference to s 79 of the Evidence Act 1995 (NSW) which is in the following terms:

In order to satisfy the provisions of s 79 the opinion which is expressed must be based wholly or substantially upon the person's specialised knowledge: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]. The importance of that requirement was observed by Gleeson CJ in HG v R (1999) 197 CLR 414; [1999] HCA 2 at [44]:

His Honour went on to observe that the opinions of the expert in that particular case provided a good example of the mischief to which he referred, and which was to be avoided.

In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 the Full Court of the Federal Court of Australia observed (at [23]):

In the present case the specialised knowledge of Mrs Smyth is as I have outlined it. In my view, the opinions to which objection has been taken go substantially beyond her area of expertise. The report discloses nothing in terms of training, study or experience in, or specialised knowledge of, the organisation and staffing of agricultural shows, or the behaviour of children.

Moreover, there is no exposition of any reasoning process which demonstrates that the opinions to which objection has been taken are based upon any specialised knowledge. That, in my view, is because the specialised knowledge which would allow a witness to express such opinions is not knowledge which Mrs Smyth possesses.

In the event that the objections were upheld, senior counsel for the plaintiff foreshadowed an application to adduce further evidence of Mrs Smyth's background and experience in order to provide a proper evidentiary basis for the admissibility of the opinions in question. Senior counsel submitted that in seeking to take that course, he was not proposing to add to the substance of the report, but was simply seeking to supplement what had already been stated in it. Senior counsel for the defendant objected to that course.

Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) is in the following terms:

In my view, the circumstances of the present case fall squarely within r 31.28(3)(c). I do not accept that Mrs Smyth’s report contains the substance of the matters which are now sought to be adduced in evidence. What is sought to be adduced is further evidence to render the opinions in question admissible.

Further, oral evidence‑in‑chief of an expert cannot be permitted except by leave of the Court. Under r 31.28(4) leave is not to be granted unless I am satisfied that there are exceptional circumstances that warrant it. The term "exceptional circumstances" is not defined in the rules and accordingly it must be given its ordinary meaning. Each case must be determined on its own facts, the overriding consideration being the just determination of the proceedings: Australian Security and Investments Commission v Rich [2005] NSWSC 706.

For a number of reasons I am not satisfied that the circumstances of the present case are properly regarded as exceptional.

Firstly, and as I have already noted, the report of Mrs Smyth is dated 2 September 2016. That is almost two years ago. There has been ample time for the plaintiff’s representatives to address any perceived shortcomings in the report by the provision of a further report if that was sought to be necessary.

Secondly, these issues have arisen because the defendant has taken what I have determined to be a proper and legitimate objection to parts of the report of Mrs Smyth. That is hardly an unusual course. It is obviously not uncommon in any litigation for one party to object to the evidence of the other. There was no direction in the present case of which I have been made aware which required the defendant to foreshadow its objections at some earlier time.

Thirdly, if I were to grant leave, it would place the defendant in a situation where it was faced with additional evidence, of which it was not previously on notice, and which it would not (at least immediately) be in a position to meet. That in my view would result in an injustice to the defendant in circumstances where, as I have said, the report of Mrs Smyth is two years old and where the plaintiff's representatives have had ample time to consider, and if necessary address, the admissibility of its contents.

Accordingly, I exclude those parts of Mrs Smyth’s report to which objection was taken by senior counsel for the defendant, and I refuse leave to the plaintiff to adduce further oral evidence-in-chief.