Black Saturday: The lessons of expert advice

Black Saturday is a day of devastation and destruction etched in Victoria’s history. Seven years on, people still seek answers as to what caused the series of bushfires and who is responsible.

The Kilmore East-Kinglake litigation offers lessons in the law for the future. Court cases can turn on surprising things, like working out what caused a power line to make a spark that started a fire. This raises more questions: should someone have done something to prevent it? Should they be held legally responsible for the fire?

You need a lot of expert evidence to have any chance of resolving it. You need to know how conductors work, how power lines act in extreme weather conditions. Our legal system has a long-established way of hearing expert evidence, but it is ill equipped to deal with these kinds of complex scientific questions.

When the stakes are as high as they were in Matthews v SPI Electricity Pty Ltd & Ors, a case about the fire that raged through the Kilmore East area on Black Saturday, the procedural decisions made by the Court are crucially important.

An unusually large number of experts – 40 – gave evidence. They included experts on how fires spread, on metallurgy, on high-level physics, mechanical engineering and on industry practice.

The scale and complexity of the expert evidence required the presiding judge, Justice Jack Forrest, to do things differently than he would for a normal case. He had to adopt different procedures for managing the expert evidence.

So, did this novel approach to the management of experts in this case improve the outcome?

My research project, which was supported by the Supreme Court of Victoria, assessed the impact of some of these different procedures the Court adopted, and whether the judges, barristers, solicitors and experts involved thought they were successful in bringing the knowledge of the experts into the courtroom.

Nearly 6000 plaintiffs

A court has to determine whether anyone is legally responsible for an event occurring. In this case, it had to figure out whether anyone was responsible for the fault in the power line and the fire that it caused.

The almost 6000 plaintiffs in the class action sought more than $1 billion in damages from the power distributer, the asset manager of the lines, and the State Government for failing to properly maintain the lines and prevent the fire.

There were expert conferences to figure out what the experts agreed and disagreed about before the trial. The Court heard evidence from experts concurrently, with up to nine experts giving evidence at the same time. Justice Forrest also appointed two assessors to assist him with the most complicated parts of the evidence.

The project was an opportunity to explore things that judges and lawyers usually take for granted. How should the experts be selected and should the Court control this selection? How should the Court group the experts for the expert conferences? What was the appropriate procedure for hearing evidence concurrently from nine experts? How should the assessors interact with the judge and the experts? How these questions are answered can have a profound impact on the outcome of a trial.

The case settled after the trial concluded but before judgment was handed down, which means the parties were never able to see how Justice Forrest applied the evidence he heard in Court. Nevertheless, the participants said some of the different procedures adopted – such as the associate justice moderating the larger expert conferences, or the assessors taking part in the examination of experts – helped the parties and the Court better understand the expert evidence.

They also raised some concerns, including a perception that there was a lack of transparency on how experts were briefed, and how expert-led investigations can be problematic without the input of lawyers to help assess whether the gain the additional work might provide is worth the increased cost.

One thing is very clear from the research. A trial like this is a collision of two very different worlds. The lawyers were very focussed on the outcome of the case, whereas the experts were much more interested in finding answers, not necessarily who was at fault.

The experience in this case helps us better see the tension between the aims of science and the aims of a trial. A trial and a scientific inquiry are trying to do different things: a trial seeks to allocate responsibility on the basis of probability; whereas scientific inquiry aims for a more complete and certain understanding, that is not necessarily constrained by the need to reach judgment.

It shows just how much work has to be done to better incorporate scientific knowledge into our justice system.

Banner image: Kinglake National Park after the fires. Picture: Wikipedia