This decision marks an important change in mood in how hearsay evidence in documents is dealt with in Queensland, overturning a longstanding practice of admission by default.
The plaintiff brought a claim against his employer for a back injury from opening the door of his truck. The plaintiff failed at trial on the basis that there was no breach of duty. The plaintiff’s focus on appeal was the question of whether the plaintiff received appropriate manual handling training. However, manual handling training had not been an issue at trial and the plaintiff had not given evidence about training. In order to overcome this deficiency in the evidence, the plaintiff relied upon the report of the plaintiff’s ergonomic expert who had recorded the plaintiff’s statement to him that there was no training.
The plaintiff relied upon a 2012 Queensland Court of Appeal decision which stated that it was a long-established principle in Queensland that if a party failed to object to a document containing hearsay evidence, that evidence would become admissible.
The 2017 Court of Appeal categorically rejected this principle, at least insofar as it related to expert reports. Expert reports were a ‘special and different category’ because of the proof of assumption rule. Experts were required to make assumptions of fact for the purposes of formulating their opinions. However, such assumptions must ultimately be proved by direct evidence at trial. The opposing party could not object to the expert reports on the grounds of the hearsay assumptions but this was not to be taken as an admission of hearsay evidence.
To hold otherwise would allow a party to effectively ‘bootstrap’ their case by tendering an expert report without calling the witnesses (including the plaintiff) to substantiate the assumptions. This could be performed deliberately to avoid exposing those witnesses to challenge on cross-examination and would be tantamount to misleading the court.
The Court could find no evidence of a ‘longstanding practice’ in Queensland of allowing otherwise inadmissible hearsay evidence in through documents and suggested that the grounds for objection applied equally applicable to non-expert documents. The Court considered previous cases which had applied the principle and suggested the results may be different now.
Beaven v Wagner Industrial Services
This decision will have an important impact on trial preparation in Queensland as it had been the practice for plaintiffs to rely upon assumptions in experts’ reports to backfill the gaps in a plaintiff’s evidence. This decision reinstates the correct practice of a more vigorous testing on the basis of the expert’s assumptions and stopping the ‘bootstrapping’ of plaintiffs’ cases