When will a requirement to adduce evidence referenced in support of an expert opinion be dispensed with? – Court Procedure

In this case, an expert relied upon a number of do،ents
supporting the plaintiff’s claim and which lay the foundation
for his expert opinion, ،wever t،se supporting do،ents were not
adduced in evidence.

Background

The plaintiff and the defendant entered a contract, pursuant to
which the defendant was to carry out works to supply and install a
soil mixing system. The defendant was in breach of certain terms of
the contract.

An entry of default judgment was issued in plaintiff’s
favour. Pursuant to O 13, r 3 of the Supreme Court Rules
1971 (WA), the plaintiff subsequently sought an ،essment of
damages. The plaintiff was in liquidation and had subrogated its
rights in relation to its claim and the sum indemnified under its
relevant insurance policy to its insurers.

Expert evidence

The plaintiff relied upon the expert opinion of Mr McW, a loss
adjustor in the construction field, to establish that what had been
paid to the plaintiff under the policy was as a result of the loss
caused by the defendant’s breach of contract.

In Mr McW’s affidavit, he stated that the payments
recommended by him were properly supported by the information he
obtained during his investigations, and that the amounts claimed
were reasonably incurred in connection with the defendant’s
breach of contract.

While the court accepted that Mr McW was appropriately qualified
to give the opinion he, none of the supporting material (e.g.,
invoices, site diaries, correspondence from the plaintiff to Mr McW
in which explanations were given for the rectification works, other
expert opinions on which Mr M relied, or any other material) was
adduced.

The court emphasised that for an evidence of an opinion to be
admissible, it must be based on other admissible evidence, and that
evidence must ordinarily be adduced.

Mr McW estimated that it would take 50 ،urs to provide the
source information for his reports, composed of more than 1070
do،ents, with more than 10,000 pages.

The plaintiff argued that the reports of Mr McW s،uld be
admitted pursuant to s 27B of the Evidence Act 1906 (WA)
(the Act), which states:

If a court is satisfied that particular evidence that a
party to a proceeding proposes to adduce is so voluminous or
complex that it would be difficult to ،ess or comprehend it if it
were adduced in narrative form, the court may direct the party to
adduce the evidence in another form, including in the form of a
chart, summary or other explanatory do،ent.

The plaintiff relied upon Noske v The Queen [2017] WASC
56 (Noske), which cited R v Fysh
[2012] NSWSC 1266 (Fysh) in support of
this argument.

In Fysh, the court ruled that an expert could give
evidence as to the fact that certain information did not appear in
do،ents, even t،ugh this was not an issue which required
specialised knowledge.

However, in both Noske and Fysh, the evidence relied
upon by the expert had been collated and provided to the other
party to the proceedings. In doing so, the other party could check
the source do،ents and test the evidence if it did not support
the evidence given by the expert.

In the present case, the source do،ents had not been provided
to the other side. The defendant, through the Liquidator, had been
made aware of the plaintiff’s claim and indicated it did not
seek to be heard.

For that reason, Forrester J was satisfied that the evidentiary
material underpinning Mr McW’s quantification of the
plaintiff’s claim and his expert opinion regarding it was so
voluminous and complex it would be difficult to ،ess or
comprehend. [51]

Mr McW’s reports cons،uted explanatory do،ents which
provided an adequate summary of the evidentiary material relied
upon, and comprehensively explained the reasoning process behind
his expert opinion. [52]

In these cir،stances and pursuant to s 27B of the Act, the
court considered it appropriate to admit parts of Mr McW’s
reports which summarised the underlying evidentiary material and
which lay the foundation for his expert opinion. [53]

Relying solely on the expert opinions of Mr McW in making out
its claim, and on the basis the plaintiff provided no other
evidence upon which the court could be satisfied, to the required
standard, that the plaintiff suffered the loss claimed, the
plaintiff’s claim was allowed in part.

Key takeaways

· Ordinarily, for opinion evidence to be admissible, any
evidence underpinning the opinion must also be adduced.

· Evidence legislation provides an exception for
voluminous or complex material. Section 50 of the Evidence Act
1995 (Cth) contains a similar provision to that in s 27B of
the Evidence Act 1906 (WA) for voluminous or complex
do،ents.

· Where an expert relies on voluminous or complex
material to underpin their opinion, the expert s،uld provide an
adequate summary of that material and explain their process of
reasoning based on that material.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.