Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 12) [2018] NSWSC 415 (4 April 2018)

Last Updated: 9 April 2018

Supreme Court New South Wales

Case Name:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 12)
Medium Neutral Citation:	[2018] NSWSC 415
Hearing Date(s):	29 March 2018
Date of Orders:	29 March 2018
Decision Date:	4 April 2018
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Report of Michael Kane dated 13 January 2017 admitted into evidence save that [65] to [74] to be treated as an assumption, and last two sentences of [164], last sentence of [173] and last sentence of [174] are rejected.
Catchwords:	EXPERT’S REPORT – hydrometeorologist – whether qualified to express opinions on hydrometerological functions of flood engineers – whether opinions outside pleaded case – no question of principle
Legislation Cited:	Evidence Act 1995 (NSW), s 79(1), s 135
Cases Cited:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (trading as Seqwater) [2014] NSWSC 1565 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 9) [2017] NSWSC 1116
Category:	Procedural and other rulings
Parties:	Rodriguez & Sons Pty Limited (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Limited (Second Defendant) State of Queensland (Third Defendant)
Representation:	Counsel: J Sexton SC; N Owens SC; R Yezerski; J Taylor (Plaintiff) B O’Donnell QC; A Pomerenke QC; D Piggott; D Klineberg (First Defendant) D Williams SC; HJA Neal; N Simpson (Second Defendant) GA Thompson QC; JM Horton QC; E Morzone (Third Defendant) Solicitors: Maurice Blackburn Pty Ltd (Plaintiff) King & Wood Mallesons (First Defendant) Norton Rose Fulbright (Second Defendant) Crown Solicitor for the State of Queensland (Third Defendant)
File Number(s):	2014/200854

JUDGMENT

1. On 28 and 29 March 2018, I heard argument in respect of an objection by the defendants to portions of the tender by the plaintiff of the report of a hydrometeorologist, Mr Michael Kane, dated 13 January 2017. At the conclusion of argument, I ruled that the report would be admitted into evidence, save that paragraphs 65 to 74 would be treated as an assumption and the last two sentences of paragraph 164, the last sentence of paragraph 173 and the last sentence of paragraph 174 would be rejected. I stated that I would provide reasons for the ruling when the hearing resumed today, 4 April 2018. This judgment constitutes those reasons.
2. The defendants raised two main objections to the tender of Mr Kane's report. The first was that, to the extent that Mr Kane expressed opinions about the conduct or approach of the flood engineers in conducting dam operations in early 2011, it was not demonstrated that Mr Kane's opinions were wholly or substantially based on his training, study or experience (Evidence Act 1995 (NSW), s 79(1)).
3. Second, it was submitted that Mr Kane's opinions and analysis in section 5.3 of his report are inconsistent with the plaintiff's pleaded case such that they lacked relevance or should otherwise be excluded under s 135 of the Evidence Act.
4. As I will explain, there were other incidental objections to parts of the report. Further, during the debate, there emerged a potentially significant issue about the scope of the plaintiff's pleaded case.
5. The objections raised by the defendants are best addressed by outlining the scope and content of Mr Kane's report and then addressing each objection as it arises.
6. A general description of the plaintiff's case is set out in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 9) [2017] NSWSC 1116 (“Rodriguez (No 9)”), which I will not repeat. The hearing of the proceedings is now in its ninth week. The plaintiff's expert on dam operations in flood conditions, Dr Ronald Christensen, whose evidence is referred to below, has already completed his evidence. He was cross-examined for 22 days.

Mr Kane’s Report

7. As stated, Mr Kane is a hydrometeorologist. In brief, a hydrometeorologist combines expertise in understanding weather and climate data, including rain forecasts, with hydrology. In the result, being a hydrometeorologist, Mr Kane is an expert in flood forecasting, although he has never operated a dam or assumed responsibility for dam operations during a flood event or at any other time.
8. In section 3 of his report, being paragraphs 20 to 32, Mr Kane addresses the first issue asked of him, namely, how his expertise as a hydrometeorologist is relevant to the role of a flood operations engineer as described in Seqwater's “Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam” (“the Manual”). In that regard, Mr Kane refers to section 2.5 of the Manual, which provides –

“2.5 Qualifications and Experience of Engineers
Qualifications
All engineers referred to in Sections 2.3 and 2.4 must hold a Certificate of Registration as a Registered Professional Engineer of Queensland and must hold appropriate engineering qualifications to the satisfaction of the Chief Executive.
Experience
All engineers referred to in Sections 2.3 and 2.4 must, to the satisfaction of the Chief Executive,
have:
(1) Knowledge of design principles related to the structural, geotechnical and hydraulic design of large dams, and
(2) At least a total of five years of suitable experience and demonstrated expertise in at least two of the following areas:

� Investigation, design or construction of major dams;
� Operation and maintenance of major dams;
� Hydrology with particular reference to flooding, estimation of extreme storms, water management or meteorology;
� Applied hydrology with particular reference to flood forecasting and/or flood forecasting systems.” (emphasis added)

9. The last two dot points in this description of the qualifications and experience of a flood engineer fall clearly within Mr Kane's expertise and qualifications. In paragraph 30 of his report, Mr Kane refers to those last two dot points and observes that, based on the material he has seen, during the flood event in early January 2011 the flood engineers performed the flood forecasting role. Mr Kane then states –

“As described previously, the role of a hydrometeorologist involves much more than simply pushing a button to run a hydrologic model. The hydrologic forecaster must assess the quality of the observed precipitation, streamflow, lake levels, and other potential data using real-time quality control techniques; adjust hydrologic model states to match existing conditions; assess the quality and applicability of forecasted precipitation products; and run a range of simulations through the hydrologic model to assess the upper and lower bounds of possibilities from which to make decisions.”

10. In section 4 of his report, being paragraphs 33 to 72, Mr Kane addressed the second question asked of him, namely, “What are flood forecasts and what tools and inputs are used to generate them?” In this part of his report, Mr Kane describes the hydrometeorological monitoring network available to the flood engineers at Wivenhoe and Somerset Dams, the weather forecast products that were available to the flood engineers, and the operation of the Real-Time Flood Model (“RTFM”) which is referred to in the Manual and was available to the flood engineers.
11. Three parts of this section of Mr Kane's report are objected to by the defendants. The first is in paragraph 46, where Mr Kane refers to a description given by one of the flood engineers in his affidavit, namely, Mr Ruffini, of the uses he made of weather forecasts during the flood event. By reference to that description, Mr Kane describes Mr Ruffini's and the flood engineers' failure to use precipitation forecasts to “estimate likely dam inflows” as a “critical mistake”. Although the reason why it is said to be a “critical mistake” is not expressly stated, it is clear from the balance of his report that Mr Kane says that the failure to use rain forecasts for the purpose of making what is elsewhere referred to as “operational decisions” meant that, in effect, the flood engineers left themselves too little time to respond to the circumstance of forecast rain actually falling. In this regard, the concept of “operational decisions” includes decisions as to what release strategy to adopt and, in particular, decisions as to how much water, if any, should be released.
12. All of the defendants objected to the expression by Mr Kane of opinions to the effect that the flood engineers erred or acted unreasonably in failing to consider forecast rain in making such operational decisions. The effect of their objection was encapsulated by Senior Counsel for SunWater, Mr Williams SC, who accepted that a hydrometeorologist could comment on the suitability of a particular weather forecast for flood forecasting but submitted that they could not opine on whether such forecasts were suitable for use by flood engineers in making operational decisions.
13. It follows from section 2.5 of the Manual that there is a considerable overlap between the expertise of a hydrometeorologist and a person qualified to be a flood engineer. That said, a hydrometeorologist will not necessarily have knowledge of design principles relating to the structural, geotechnical and hydraulic design of large dams, as a flood engineer must have, or have knowledge of the operation and maintenance of major dams, as a flood engineer might have.
14. It follows that, without more, a hydrometeorologist will not be qualified to opine upon the specific operational decisions required of a flood engineer in a particular circumstance, especially during a flood event. However, the opinion expressed in paragraph 46 of Kane's report is not of that character. Instead, it is a commentary on the general approach apparently taken by the flood engineers that the weather forecasts were such that they could not be used to make or inform operational decisions. In my view, that topic clearly is a matter for a hydrometeorologist to opine upon because it is principally a judgment about the quality of the forecasts and the nature of flood forecasting, although it may involve some knowledge of the general nature and scope of the operational decisions that are to be made.
15. Generally, throughout his report Mr Kane is critical of what he, in effect, describes as the wholesale refusal of the flood engineers to use forecasts in making operational decisions. Although there are some exceptions, Mr Kane does not descend to identify what operational decisions should be made or to criticise a particular operational decision. To the extent that Mr Kane observes the distinction between criticising a refusal of the flood engineers to consider forecasts generally in making operational decisions on the one hand and suggesting a particular operational decision on the other, Mr Kane gives evidence in conformity with his expertise. In that regard, Mr Kane's approach appears to be consistent with the approach of Dr Curtis, a hydrometeorologist to be called by the third defendant and whose report Mr Kane is in part responding to, although I note that the third defendant contended that Dr Curtis has additional expertise that Mr Kane does not.
16. For these reasons, I admitted, over objection, paragraph 46 of Mr Kane's report (as well as paragraph 5 of the executive summary, which repeats the same opinion).
17. The second part of section 4 of Mr Kane's report that is objected to is paragraph 52 in which Mr Kane states that it was “contradictory” for the flood engineers to use 24-hour QPF forecasts to estimate water flows downstream of Wivenhoe Dam but not use them to make operational decisions based on inflow estimates by reference to forecast weather upstream of Wivenhoe Dam.
18. It follows from what I have said that I am satisfied that Mr Kane is qualified to give that opinion. The opinion is directly concerned with the utility of forecasts, a matter that is very much within Mr Kane’s area of expertise.
19. The third part of section 4 of Mr Kane's report to which objection is taken is paragraphs 65 to 72, in which Mr Kane discusses the operation of the RTFM. In this part of the report, Mr Kane states that he was not provided with the RTFM or asked to consider it in detail. Despite that, he sets out an intricate understanding of how the RTFM operates.
20. The defendants contend that, in the absence of Mr Kane stating the basis for his understanding, these paragraphs should be rejected. These paragraphs of Mr Kane's report are only included by way of background to the opinions he expresses later. Accordingly, given the role they play in his report, on 29 March 2018 I indicated that, in the absence of any evidence explaining the basis for the discussion in paragraphs 65 to 72, those paragraphs would be treated as an assumption only. I also stated that, if any party wished, they could seek an order under s 136 of the Evidence Act restricting the use to which that material could be put.
21. In section 5 of his report, being paragraphs 73 to 144, Mr Kane addresses the following question:

“Having particular regard to the defendants’ lay and expert witness evidence, in particular, Dr. Curtis’ report (section 3.4) and the Flood Engineers’ evidence, please provide your opinion on the following:
a) Do you agree with their views on the reliability and utility of the rainfall forecasts available to the Flood Engineers?
b) Whether the Flood Operations Engineers used the rainfall forecasts competently in undertaking flood forecasting during the Flood Event?

22. Mr Kane explains his approach to addressing these questions in paragraphs 73 and 74 of his report, which it is necessary to set out in full:

“73. To answer these questions, I will first describe my understanding of how the precipitation forecasts were to be used according to the Manual and the operational procedures set forth by Seqwater. I will then present my understanding of how the January 2011 event unfolded during a critical time period in this event, January 8 to January 11. I have selected this time period because it was the period of heaviest rainfall during the January 2011 event. In this section of my report, my analysis draws primarily on data and information taken from the January 2011 Flood Event Report as well as the FO Engineers’ affidavits. I have conducted an analysis of key data sets including weather radar, the 24-hour QPFs, PMEs, and a hydrograph analysis for inflows, outflows and storage at Wivenhoe as well as downstream flows at the Moggill stream gauge. I reviewed the modeling runs performed by the FO Engineers and the data they considered during this period to inform their operational decisions. The FO Engineers primarily used the QPFs, and occasionally the SILO Meteograms as precipitation forecast inputs to the RTFM hydrologic model. As I did not perform any additional modeling, all results referred to in this report draws on data from their hydrologic modeling reported in the January Flood Event Report. Given the FO Engineers did not use the PME forecasts for modeling purposes, I cannot report on any hydrologic forecasting results of the PME products during this period.
74. The January Flood Event Report identifies the start date of the January 2011 event as January 6. For that reason, my analysis begins on January 6. However, my analysis does not consider whether or not the January 2011 event in fact commenced on this date. Finally, I will explain the utility of the precipitation forecasts through a chronology of the January 2011 event. This will assess what information was available to the FO Engineers at given points in time and how the information was utilized.”

23. As I will explain, a substantial aspect of the objection to the tender of this part of Mr Kane's report is that, in effect, Mr Kane is propounding a methodology which is inconsistent with the approach to dam operations stated by Dr Christensen in his various reports and in his oral evidence. I will briefly refer to the substance of that methodology later in this judgment. However, at this point it suffices to note that this aspect of the defendants' submission misstates the nature and scope of Mr Kane's opinion.
24. Consistent with paragraphs 73 and 74 of his report and unlike Dr Christensen, Mr Kane does not purport to state an overall methodology for dam operations (and it would follow from what I have stated that I do not accept that he is qualified to do so). Thus, consistent with paragraphs 73 and 74, and unlike Dr Christensen, Mr Kane does not thoroughly review the meteorological conditions in the Wivenhoe catchment prior to 6 January 2011 to determine if a flood event should have been declared prior to that time, nor at any point in his analysis does Mr Kane purport to describe how a release strategy should be either determined or implemented. Instead, Mr Kane simply undertakes a critique of the approach adopted by the flood engineers to the forecasts they received and to the modelling they performed in a period which he describes as a critical period of flood operations.
25. In section 5.1 of his report, Mr Kane refers to and purports to explain the effect of certain parts of the Manual as well as parts of the Flood Procedures Manual dated January 2010, a document the status of which is in issue. This part of his report is objected to on the basis that Mr Kane lacks any specialised knowledge to opine on these topics.
26. One issue in these proceedings is whether the Manual, including those portions which refer to forecasts, has some technical or specialised meaning. On the assumption that they do, then the portions of the Manual and the flood procedures manual addressed by Mr Kane are those that concern the hydrometeorological functions of flood engineers. It follows that, on that basis, Mr Kane is qualified to give the opinions that he does on that topic.
27. In section 5.1 of his report, Mr Kane also addresses parts of the flood engineers' affidavits in which they refer to an email from the Bureau of Meteorology in early December 2010 as justifying the decision not to use forecasts to make or inform operational decisions. The effect of Mr Kane's opinion is that the Bureau of Meteorology's advice did not justify the flood engineers' approach. This part of section 5.1 is also objected to. However, it follows from what I have already stated that the expressing of an opinion on that topic falls directly within his area of expertise as a hydrometeorologist and, in particular, concerns that part of a hydrometeorologist's function which was performed by the flood engineers. Accordingly, I overruled the objections to section 5.1 of Mr Kane's report.
28. Section 5.2 of Mr Kane's report, being paragraphs 85 to 110, is an analysis of the rainfall and forecast data available to the flood engineers during the period 5 January to 13 January 2011. None of the defendants objected to any part of this section of Mr Kane's report.
29. Section 5.3 of Mr Kane's report, being paragraphs 111 to 174, is entitled “Chronology of the January 2011 event with respect to precipitation observations and forecasts.”
30. The entire section is objected to on the basis that Mr Kane's opinion relating to operational decisions of the flood engineers was not based upon his expertise and that his analysis is outside of, and inconsistent with, the plaintiff's pleaded case.
31. In section 5.3.1 of his report, Mr Kane reviews the meteorological conditions in the Wivenhoe Dam catchment area in the period leading up to the January 2011 event, which Mr Kane takes as commencing on or around 6 January 2011. In paragraph 126, Mr Kane states various matters that should have been “at the forefront of a hydrometeorologist's mind leading into the month of 25 January 2011”. It follows from what I have stated that, on their face, these opinions as to a “hydrometeorologist's mindset” are to be taken as including a flood engineer performing a hydrometeorological role.
32. In sections 5.3.2 to 5.3.7 of his report, Mr Kane critiques the approach taken by the flood engineers during the period 6 January 2011 to a point shortly after peak inflow on 11 January 2011. He does this by breaking down the time period into five subperiods, analysing the inflows, precipitation received and precipitation forecasts for each subperiod and then expresses an opinion about what was required either of a hydrometeorologist or of a flood engineer in respect of rainfall forecasts and their use in making operational decisions in that subperiod. The last part of Mr Kane's report, being section 5.4, summarises his opinions on these topics.
33. The following should be noted about this part of his report. First, with some exceptions, the opinions expressed by Mr Kane about what was required either of a hydrometeorologist or of a flood engineer exercising a hydrometeorologist's function observes the distinction referred to earlier between criticising a flood engineer for not using forecasts to make operational decisions on the one hand and purporting to specify what those operational decisions should have been on the other.
34. The exceptions to that are the last two sentences of paragraph 164, the last sentence of paragraph 173 and the last sentence of paragraph 174, in which Mr Kane expressed generalised opinions about the necessity for the flood engineers to make releases either because of forecast conditions or water levels in the dam. It follows from what I have already stated that I consider those opinions to be beyond Mr Kane's demonstrated expertise. For that reason I rejected them.
35. Second, the starting premise for the defendants' objection that this part of Mr Kane's report is outside of and inconsistent with the plaintiff's pleaded case is that the plaintiff's case on breach is exclusively tied to an acceptance of the methodology put forward by Dr Christensen for dam operations as reflected in at least one of his simulations, and, in particular, an acceptance that that methodology was required by the Manual and thus of the flood engineers in early January 2011. I will return to discuss this premise below. However, I will assume it is correct for present purposes.
36. The next step in the defendants' argument was to contrast the approach adopted by Mr Kane in his analysis with the approach of Dr Christensen. In that regard, Dr Christensen's methodology for dam operations involved the selection of a strategy by reference to an eight-day PME forecast and the selection of a release amount by reference to a number of factors, which included an inflow estimate calculated by reference to a four-day PME forecast, with decisions on strategy and release rates to be revisited at least once a day.
37. By contrast, Mr Kane's analysis primarily focused on 24-hour QPF forecasts. Further, as indicated earlier, Dr Christensen's primary simulation commenced on 2 January 2011, although some of his other simulations had different start dates. As stated, Mr Kane's analysis broke up the period between 6 January and 11 January 2011 into five separate subperiods that have no obvious counterparts in Dr Christensen's approach, although some of the subperiods start around the time that some of his simulations commence.
38. However, these comparisons between Dr Christensen's approach and Mr Kane's analysis suffer from the vice that it assumes they were both engaged in the same task. As I have already stated, unlike Dr Christensen, Mr Kane does not enunciate any overall methodology for dam operations during the flood event. Instead, Mr Kane merely critiques the flood engineers' approach to flood forecasting based on the forecast material they had and the modelling they undertook. Further, in the course of undertaking that analysis, he expresses opinions that at least seem reasonably arguable of supporting a number of the opinions of Dr Christensen and, perhaps, supporting an adoption of Dr Christensen's methodology.
39. For example, Mr Kane states that it was unreasonable for the flood engineers to make operational decisions based only on observed rainfall that was falling, and at various points states that prudence warranted the use of PME forecasts for periods longer than the 24 hours associated with a QPF forecast. On any view of the proceedings and the pleadings, there is an issue as to whether the flood engineers were justified in making operational decisions based on rain on the ground only and, if they were not, in determining whether and what forecasts should have been used.
40. Mr Kane's evidence is clearly relevant to those issues. An acceptance of the opinions in his reports, as I have said, could reasonably support much of the reasoning employed by Dr Christensen to justify his methodology and dam operations and could support the adoption of at least one or more of his simulations.
41. When Mr Kane's report is analysed in that way, no basis for exclusion, either on relevance grounds or under s 135, was made out. Accordingly, for that reason, I overruled the defendants' objection to this part of Mr Kane's report other than the small portions that I have noted.

Scope of Pleadings

42. In light of these conclusions, it was not necessary to make a determination of the dispute between the parties of the scope of the plaintiff's pleaded case and, in particular, not necessary to determine at this stage whether the plaintiff's case on breach can only be established if all or a substantial part of the methodology for dam operations outlined by Dr Christensen is found to be what was required of a reasonably competent flood engineer. The resolution of a theoretical debate on that topic, based on speculation about possible findings the Court may make, is a course that should be avoided if possible. However, it is necessary to note three matters at this point.
43. First, an analysis of the scope of the pleaded case, especially in the context of objections to evidence, must have regard to the judgment of Garling J in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (trading as Seqwater) [2014] NSWSC 1565, especially at [87], the effect of which was that the plaintiff was precluded from pleading “states of mind” as breaches by the flood engineers and was instead limited to pleading breaches in the form of “acting inappropriately or failing to act appropriately”.
44. One effect of this is that many of the fundamental differences between the parties as to the approach that should have been adopted in conducting dam operations are not obvious from perusal of the pleadings. This is exemplified in the case of Mr Kane's report, in that most, if not all, of his criticisms of the flood engineers' conduct concern what Garling J referred to as “states of mind”.
45. Second, at least in respect of paragraphs 304 to 309 of the Amended Statement of Claim filed 29 September 2017, the issue whether the plaintiff can make a case of breach of duty beyond the adoption of some or all of Dr Christensen's methodology or one of his simulations appears to turn on the scope of the words “the requirements of the flood mitigation manual as described in the methodology used by Dr Christensen in his reports and summarised in chapter VI of volume 1 of the Christensen reply report at paragraphs 201 to 238”. At first blush, it is difficult to see why that phrase assumes an acceptance of all of Dr Christensen's analysis of the Manual's requirements.
46. Third, in Rodriguez (No 9), at [24] to [31], I addressed the position that might emerge if, as a result of the Court's findings, the plaintiff sought to put forward a further counterfactual simulation in addition to those which Dr Christensen has already testified upon. I simply note that that discussion was directed to causation and not breach. Otherwise, the position adverted to in [29] to [30] of Rodriguez (No 9) still pertains.

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