Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling)

• Jurisdiction: Australia Federal only
• Judgment Date: 03 November 2022
• Neutral Citation: [2022] FCA 1318
• Date: 03 November 2022
• Court: Federal Court

Federal Court of Australia

Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling) [2022] FCA 1318

File number:	NSD 806 of 2020
Ruling of:	STEWART J
Date of ruling:	3 November 2022
Catchwords:	EVIDENCE – objection to tender of scientific journal articles – where category one articles were put to an expert witness in cross-examination – where category two articles not the subject of any expert evidence – whether articles admissible and, if so, whether subject to limitation
Legislation:	Evidence Act 1995 (Cth) ss 59, 60, 69, 76, 77, 79, 135, 136, 174 Federal Court Rules 2011 (Cth) Div 23.2 ; Expert Evidence Practice Note (GPN-EXPT)
Cases cited:	ACCC v Air New Zealand Limited (No 5) [2012] FCA 1479; 301 ALR 352 Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 Borowski v Quayle [1966] VR 382 Commissioner for Government Transport v Adamcik [1961] HCA 43; 106 CLR 292 Concha v Murrieta (1889) 40 Ch D 543 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 PQ v Australian Red Cross Society [1992] 1 VR 19 QIW Retailers Ltd & Attorney-General (Cth) v Davids Holdings Pty Ltd (No 3) [1993] FCA 288; 42 FCR 255 R v Karger [2001] SASC 64; 83 SASR 1 R v Patel (No 6) [2013] QSC 64 Roach v Page (No 15) [2003] NSWSC 939 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; 224 ALR 317
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	25
Date of hearing:	1 November 2022
Counsel for the Applicant:	I R Pike SC, A Naylor, R J May and W Lu
Solicitor for the Applicant:	Shine Lawyers
Counsel for the Respondents:	D McLure SC, G O’Mahoney, H Pintos-Lopez, T March and A Reid
Solicitor for the Respondents:	Clyde & Co

REASONS FOR RULING

		NSD 806 of 2020
BETWEEN:	SUSAN KARPIK Applicant
AND:	CARNIVAL PLC (ARBN 107 998 443 / ABN 23107998443) First Respondent ; PRINCESS CRUISE LINES LTD (A COMPANY REGISTERED IN BERMUDA) Second Respondent

STEWART J:

Introduction

1. An issue has arisen with regard to the admissibility of certain learned articles published in scientific journals during the course of the trial of this class action. The issue has arisen after all witnesses have completed their evidence and been excused, and there is no intention to apply to recall any witness.

2. There is a substantial volume of medical-related expert evidence in the trial. Amongst other issues, the evidence is directed at questions such as the incubation period of the SARS-CoV-2 virus, the prevalence of asymptomatic infections of the virus, the modes of transmission of the virus including what the state of scientific knowledge was in that regard in early March 2020, the extent of asymptomatic and pre-symptomatic transmission of the virus, the contagiousness of the virus including with reference to the basic reproductive number (R₀) and the secondary attack rate (SAR), and the significance of a negative SARS-CoV-2 PCR test followed some time later by serology (blood) tests positive for SARS-CoV-2 antibodies. As might be expected, the expert reports are replete with references to learned articles published in scientific journals on which the expert opinions are based.

3. It is uncontroversial that those articles are admissible in evidence. As it was explained in Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [93] by Finn, Sundberg and Mansfield JJ, there is nothing in the Evidence Act 1995 (Cth) that displaces the body of common law that provides that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise as a basis for their opinions. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense that they rely for such data not on their own knowledge but on the knowledge of someone else. That statement was approved in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [110] by Heydon J.

4. Significant in the body of law referred to is Borowski v Quayle [1966] VR 382 at 386-387 where Gowans J quoted the following passage from Wigmore on Evidence (3rd ed) Vol 2, pp 784-785 para 665(b):

The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards. Yet it is not easy to express in usable form that element of professional competency which distinguishes the latter case from the former. In general, the considerations which define the latter are (a) a professional experience, giving the witness a knowledge of the trustworthy authorities and the proper source of information, (b) an extent of personal observation on the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely.

5. It can thus be seen that expert reliance on such learned publications is not excluded by the rule against hearsay (s 59) or the opinion rule (s 76).

6. There are two categories of learned publications the admissibility of which the parties dispute. Common to both categories is that the articles are not referred to in any of the expert reports that have been tendered, confirmed on oath or affirmation and that have been the subject of cross-examination. In the first category are two articles sought to be tendered by the applicant which were put to one of the respondents’ expert witnesses, Professor Catherine Bennett, in cross-examination. The four articles in the second category, which are also sought to be tendered by the applicant, were not referred to in the evidence of any of the experts.

7. The objection taken to both categories of articles is that admission of them would be contrary to the opinion rule in Pt 3.3 of the Evidence Act read together with Div 23.2 of the Federal Court Rules 2011, which deals with parties’ expert witnesses and expert reports, and the Court’s Expert Evidence Practice Note (GPN-EXPT). The short point that is made is that even if it were to be accepted that the opinions expressed in the articles were wholly or substantially based on the authors’ specialised knowledge based on their training, study or experience (as required by s 79(1) of the Evidence Act), the requirements of the Court’s rules and practice with regard to the admission and testing of expert reports have not been satisfied in relation to the articles.

Category two articles

8. It is convenient to deal first with the category two articles, ie, articles that have not been the subject of any witness evidence.

9. The applicant has not referred to any authority which supports the admission of learned articles in category two. The applicant refers to R v Patel (No 6) [2013] QSC 64,...