Miljus V CSR Ltd (No. 2) [2010] NSWSC 598

Miljus V CSR Ltd (No. 2) [2010] NSWSC 598

Mr Simpson's opinion that the truck's brakes did not fail had sufficient reasoning to satisfy Makita because he explained his knowledge of the braking system and why loss of air pressure or brake fade was unlikely. His second opinion about how the accident occurred was inadequately reasoned in the report and was materially supplemented for the first time in oral evidence, placing the Second Defendant at a serious disadvantage. The fairer course was not to reject all of that evidence, but to adjourn the part-heard proceedings so the Second Defendant could obtain automotive expert evidence in reply. A single expert was inappropriate, and the Second Defendant would not be compelled to serve...

Jurisdiction
Australia
Judgment Date
08 June 2010
Procedural Posture
Procedural and Other Rulings / Part Heard Proceedings; Second Defendant's Application for Adjournment Following Challenge to Expert Evidence
Outcome
Proceedings adjourned part heard on the Second Defendant's application; costs thrown away reserved.
Legal Topics
['expert Evidence' 'expert Witness Code' 'makita Principles' 'admissibility of Expert Reports' 'adjournment to Obtain Expert Evidence in Reply']
['evidence' 'civil Procedure'] ['expert Evidence' 'expert Witness Code' 'makita Principles' 'admissibility of Expert Reports' 'adjournment to Obtain Expert Evidence in Reply']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Part Heard Proceedings; Second Defendant's Application for Adjournment Following Challenge to Expert Evidence

Legal Issues

  1. 1 ["Whether Colin Simpson's expert report complied with the requirements for expert opinion evidence stated in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705." "Whether the opinion that the truck's brakes did not fail had a proper evidentiary and reasoning basis." 'Whether the opinion or hypothesis about how the accident occurred was adequately explained in the report or unfairly supplemented for the first time in oral evidence.' 'Whether the proceedings should be adjourned to allow the Second Defendant to obtain expert evidence in reply.' 'Whether a single expert should be ordered or the Second Defendant should be compelled to serve any expert report obtained.']

Ratio Decidendi

Mr Simpson's opinion that the truck's brakes did not fail had sufficient reasoning to satisfy Makita because he explained his knowledge of the braking system and why loss of air pressure or brake fade was unlikely. His second opinion about how the accident occurred was inadequately reasoned in the report and was materially supplemented for the first time in oral evidence, placing the Second Defendant at a serious disadvantage. The fairer course was not to reject all of that evidence, but to adjourn the part-heard proceedings so the Second Defendant could obtain automotive expert evidence in reply. A single expert was inappropriate, and the Second Defendant would not be compelled to serve...

Court Disposition

Proceedings adjourned part heard on the Second Defendant's application; costs thrown away reserved.

Orders

  • ["Upon the Second Defendant's application proceedings are adjourned part heard to a date to be fixed." 'The costs thrown away by reason of the adjournment are reserved.']