Beaven v Wagner Industrial Services Pty Ltd

This recent decision includes some interesting observations by the Court of Appeal in relation to the use of hearsay in an expert report. At first instance, the expert’s report was admitted into evidence without objection containing a hearsay statement by the appellant to the expert.  The appellant had not relied upon the hearsay statement in the report as proof of the fact at trial, but sought to do so on appeal. The question on appeal was in effect whether the respondent’s failure to object amounted to a waiver. The Court affirmed that the absence of objection does not amount to a waiver of the operation of the hearsay principle.

Fraser and Philippides JJA and McMeekin J

24 October 2017

In the course of this ultimately unsuccessful appeal against the dismissal of a claim for damages for personal injury, the court considered a “vexed” question “of some significance in much litigation”; [2] specifically, whether hearsay evidence in an expert report which was tendered and not objected to became admissible to prove the truth of that statement. [2], [57].

The hearsay statement reported by the expert

The appellant’s cause of action had been based upon an alleged failure to train in basic manual handling techniques, albeit there was no direct evidence of the extent of the training by the respondent nor of the full extent of the training that he had received in the course of his career. The appellant invited the court to draw an inference as to the training given or not given. [35].

In that regard, on appeal (but not at trial) he solely relied upon a statement he had made to his ergonomist as providing “the missing proof”. The statement read:

“In regard to manual handling training Mr Beaven could not recall any training session and no input regarding the avoidance of applying efforts at full reach nor any input in regard to stressful postures.” [31], [32], [44].

The absence of an objection

Relevantly, at trial the respondent did not object to the statement in the report. In that regard, Fraser J commented that it was “difficult to see” the need for any such objection to its admission in order to prevent the report’s admission being regarded as evidence of the truth of that fact, noting:

“There may be particular cases in which the circumstances make it prudent for a party to clarify the position, or even to take an objection, but ordinarily the mere absence of an objection should not transform an expert’s statement of a fact upon which the expert’s opinion is based into evidence of the truth of that fact”. [5].

The principle in Robert Bax & Associates v Cavenham

In Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476, [46], Muir J held that “generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put”.

However, in considering the status of the hearsay evidence in dispute McMeekin J (with whom Fraser and Philippides JJA agreed) formed the view that “a real question mark” existed over whether the principle identified in Robert Bax applied to statements in expert reports of asserted facts upon which the expert’s opinion was based. [3], [54]. His Honour Justice McMeekin was sceptical. He expressed the view that whilst there may be instances where an expert’s statement of another person’s assertion of a fact is admissible as original evidence of that fact, those cases are exceptional and it remains the general rule that in the majority of cases an expert’s statement of a fact asserted by another person is not admissible evidence of the truth of that fact: see Ramsay v Watson (1961) 108 CLR 642, 648–649.

Was the hearsay statement to the expert proof of the fact?

In dispensing with the appeal and finding that the statement contained within the expert report ought be given nil probative force [53], [73] the court noted the following matters:

• a statement that someone does not recall a stated event does not equate to a statement that the event did not in fact occur; [45]
• at the time of tender there was no indication that the statement was intended to be relied on as proof of the fact; [48]
• the respondent was entitled to assume that relevant admissible evidence would be presented to support the appellant’s cause of action, however that was not the case; [53]
• hearsay statements in expert reports “stand in a special and different category to hearsay statements in other documents”; [57]
• to implement a requirement that counsel formally object to such material on each occasion a report was led in evidence would create unnecessary work; consume court time without any benefit; and potentially result in rewarding unmeritorious cases. [64].

A de Jersey