Matthews v SPI Electricity was a class action arising out of the Black Saturday bushfires in Victoria in 2009. Carol Matthews was the lead plaintiff in a claim against electricity provider SPI Electricity where it was alleged the defendant’s faulty equipment caused the fire in Kilmore East/King Lake. The matter settled in July 2014 for $500 million. The instant decision was in respect of an interlocutory application brought by the defendant in respect of two expert reports prepared by one Dr Nick Hastings, an engineer engaged by the plaintiff, on the asset management of the defendant (ie. that state of maintenance of the defendant’s electricity conductors).

Summary

J Forrest J considered the three critical matters in determining admissibility were:

1. That the witness must have specialized knowledge resulting from training, study or experience;
2. The opinion expressed must be wholly or substantially based on that knowledge; and
3. The opinion must be relevant to the trial issues.

J Forrest J thought that it was clear from Dasreef v Hawchar that admissibility was based on section 79 of the Evidence Act 2008 (Vic), and not on the common law, and that ‘at least as a matter of procedure, an expert must set out the factual assumptions that are relied’ on.

The defendant argued the reports were inadmissible on the grounds that the expert had made findings of fact, as opposed to relying on assumed facts and providing an opinion on them, had not adequately differentiated between assumptions of fact and expression of opinion, and as such it was not possible to determine where the application of expertise existed.

The expert had not been provided a statement of assumed facts by the plaintiff’s solicitors, but was provided with the relevant source documents (ie. maintenance policies and practices). He described these documents and offered an opinion on them, the point of contention in respect of delineating between facts and opinion. Forrest J conceded the reports were not ideally structured, but that it was clear, ‘from a sensible reading,’ that is reading the reports as whole rather than undertaking an ‘excruciatingly detailed analysis,’ as the defendant had done, to delineate between the assumed facts and the expressions of opinion.