In brief - What happens when the expert ventures outside the realm of specialised knowledge?
Litigators should be aware of the decision of Menz v Wagga Wagga Show Society Inc (No 1)  NSWSC 1446, in which the Supreme Court of New South Wales emphasised that the admissibility of expert opinion evidence depends on whether or not it falls within the parameters of an expert’s specialised knowledge.
Rider crushed by spooked horse relies on expert's opinion in suing for damages
The plaintiff in these proceedings had been crushed by a horse that she was riding at the Wagga Wagga Agricultural Show on 28 September 2012. She alleged that her horse was “spooked” by a loud noise created by children in the near vicinity of the racecourse, which ultimately caused her to incur multiple injuries.
There was little doubt, on the evidence, that the horse was in fact spooked in the manner described by the plaintiff, and that she suffered significant injury as a direct result of this. The main issue in this case was the alleged liability of the defendant.
Mrs Debbie Smyth, a retired horse trainer, riding instructor and judge at agricultural shows, was qualified for her written opinion on liability by the plaintiff. Mrs Smyth produced a report dated 2 September 2016 which was consequently relied upon by the plaintiff, and objected to by the defendant on the grounds that certain opinions expressed were not based on her field of specialised knowledge.
Court upholds defendant's submission that expert not properly qualified on certain opinions
Counsel for the plaintiff submitted that Mrs Smyth, when her report was read holistically and her experience take into account, was appropriately qualified to express all of the opinions contained within her report. Counsel for the defendant, on the other hand, submitted that Mrs Smyth was not properly qualified to opine in respect of legal issues, nor any matters which were not based upon her specialised knowledge, notably with respect to the organisation and staffing of agricultural shows and generally, the behaviour of children.
Ultimately, the Court decided to uphold the defendant’s objections to Mrs Smyth’s report, ruling that the opinions to which objections were taken went beyond her area of expertise to a substantial degree. In making its decision, the Court referred to section 79 of the Evidence Act 1995 (NSW) to determine the admissibility of Mrs Smyth’s report. The Court reiterated that to satisfy the provisions of this section, the opinion which is expressed must be wholly or substantially based upon the person’s specialised knowledge. Any application to adduce further evidence, in order to provide an evidentiary basis for the admissibility of an expert report, will be denied on the basis that rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) applies, unless circumstances are “exceptional” to warrant the making of such an order.
Implications for litigators
While the outcome of this decision is not surprising, litigators should be aware that reliance on expert evidence will only succeed if the expert in question is appropriately qualified, has been briefed properly and limits his or her opinions to that expert's field of expertise.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.