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Write 12 pages thesis on the topic decision of the high court of australia in dasreef pty ltd v hawchar.
Write 12 pages thesis on the topic decision of the high court of australia in dasreef pty ltd v hawchar. Sections76-80 of the Evidence Act 1995 NSW deal with opinion evidence (Evidence Act 1995). Section 79 provides for expert evidence as opinion based on specialised knowledge although there is no expression of the term ‘expert’ (Ying, 2005, p 76). Section 177 of the Act provides for an expert evidence to be given in the form of certificate with the expert’s name and address and his signature affirming that he possesses specialised knowledge acquired through study, training or experience as mentioned in the certificate.
The certificate should claim that his expert opinion contained therein is based on such knowledge through study, experience or training. This could serve as admissible evidence without the expert attending the court unless the opposing party requires him to tender evidence in person at the court and be subjected to cross-examination. If , after tendering of the evidence by the expert in person , the court feels that there was no need for his personal appearance to tender evidence, costs may be imposed on the party who made such a request for being awarded to the expert (Ying,2005,p78). In fact, the expert evidence is one of the exceptions to the opinion rule as evinced by the section 76. Evidence law does not allow opinion of a witness unless he/ she is an expert in the relevant field. Other witnesses may only testify to the facts as to their existence without being qualified by their opinion.
It is for the court to form an opinion based on the facts testified. This is the position with common law as well (Ying, 2005, p78). According to Phipson (2000), common law rule is that no opinions, inferences or beliefs of individuals are admissible in evidence as proof of material facts. Cross (2004) says that the purpose was to exclude “uncertain and unreliable knowledge”. Apart from section 79, sections 77 and 78 permit lay opinions of witnesses. The decision in Dasreef Pty Ltd v Hawchar (LegalOnline, 2011) questioned the admissibility of what was claimed to be expert evidence under section 79. Although the so called expert was allowed to tender evidence, he did not meet the criteria laid down in section 79 and 177 stated above. Nawaf Hawchar, with a history of employment as stonemason for five and half years from 1999 to 2005 with Dasreef Pty Ltd, claimed to have developed silicosis due to the nature of his job having risk of exposure to silica dust. He was under similar employment in Lebanon earlier to 1996 for one year. In addition, he did private stonemasonry work during the period from 2002 to 2005. Since in May 2006 Hawchar was diagnosed with early stage silicosis and earlier in 2004 for Sclereroderma, he filed claim for damages for injury of contracting scleroderma and silicosis against his employer Dasreef in Dust Diseases Tribunal of New South Wales (LegalOnline, 2011).
