Australia: WA District Court case - Expert Evidence, Finding of Fact, Proving a Causal Link and when the Passage of Time can have an adverse impact on Evidence

Last Updated: 3 March 2013
Article by Ashley Crisp and Neil Keene

Fraser v Burswood Resort (Management) Ltd [2012] WADC 175

At approximately 4:40am on 10 December 2001 Ms Fraser was undertaking her usual 45 minute drive home after completing nightshift as a croupier at Burswood Casino. She alleged having felt no effects of fatigue prior to the event but that she then momentarily fell asleep behind the wheel waking suddenly to find her vehicle was veering off the road causing her to take corrective actions which led to the vehicle losing control and rolling over. She sued her employer in the District Court for damages.

Ms Fraser alleged that the accident was caused by the Defendant:

  • Breaching its duty to provide her with adequate information, instructions and training to ensure that she could recognise the signs of tiredness and fatigue;
  • Failing to warn her of any or all dangers associated with the shift work she was performing; and
  • Did not devise or implement an appropriate or effective protocol to address employee fatigue caused by night shifts.

On 18 December 2012, District Court Judge Stevenson delivered his reasons for decision following trial.

Issues raised at trial included:


Ms Fraser filed her writ within days of the 6 year limitation period following the accident and served the writ on the the Defendant nearly 1 year later.

There were issues at trial as to alleged inconsistency with previous accounts provided to police and investigators closer to the accident date. Witnesses called were also only able to recite their recollection of the accident based on reading material produced closer to the accident which, in turn, compromised their evidence.

There was also the added burden to overcome of proving what standard of care applied at the time of the accident ten years earlier, that is, what did or should the Defendant have known about the risk and what steps were reasonable to prevent the risk in 2001). This required Ms Fraser to obtain and rely on publications provided at the time of the accident which were not easily accessible and came under scrutiny.

Judge Stevenson was clear that the passage of time had impacted on the evidence adduced by Ms Fraser in relation to the circumstances of the accident and on the Defendant in its attempts to obtain corporate records dating back such a significant period of time.

Accuracy and Scope of Expert Evidence

The importance of providing accurate instructions to expert witnesses was also canvassed in this case. Ms Fraser required her expert to make certain assumptions in drafting his reports which, after being proved inaccurate at trial, served to compromise his findings in respect of earlier reports.

The scope of just what an expert can provide his or her opinion as to was also addressed. The expert in this case suggested that Ms Fraser's accident was one consistent with being caused by fatigue which was a view the Judge could not rely on noting that the Court, in addressing causation, had to make a determination on the evidence available and not be informed by statistical data of an increased risk of accident.

The expert was also found to, on occasion, only provide evidence based on general experience, principle or common sense. While he could give evidence as to general terms and concepts relating to fatigue, he could not go as far as giving medical evidence about the physiology associated with the phenomena know as 'micro-sleep' because he had no medical training, experience or expertise.

The expert's impartiality was also brought into question at one stage. This related to an issue that arose in a previous publication authored by the expert which would not have advanced Ms Fraser's case.

The learned trial Judge noted that the expert's refusal to "accept the obvious" demonstrated that he was not acting in accordance with the privilege accorded to an expert and the duty to the court of total impartiality in all aspect of his evidence.

Ms Fraser's lawyers submitted in closing that a Jones v Dunkel inference could be made on the basis that the Defendant had engaged its own expert however had not adopted or relied on the expert's evidence at trial to contradict Ms Fraser's expert's views such that an inference could be drawn that Ms Fraser did fall asleep while driving and that this caused the accident. His Honour did not accept the submission on the basis, inter alia, that Ms Fraser's expert was not himself a 'sleep-expert' and had no formal medical training.

The Decision

Ms Fraser's claim was dismissed.

The principle relied upon by His Honour was outlined by Chief Justice French in Amaca Pty Ltd (under NSW administered winding up) v Booth [2011 CA 53] :

"Causation in tort is not established merely because the allegedly tortuous act or omission increased the risk of injury. The risk of an occurrence and the cause of an occurrence are quite different things."

Judge Stevenson was not persuaded, on the balance of probabilities, that Ms Fraser did fall asleep and that this was the cause of her accident noting it was just as probable the accident was caused by Ms Fraser's own carelessness or inattention leading to her losing control of the vehicle, panicking, braking too heavily and over steering while she was awake.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ashley Crisp
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