Adib v Onur Pty Ltd (Ruling No 2)
[2025] VCC 939
•9 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-24-01002
| MOHAMMAD ADIB (FORMERLY SHOHANI) | Plaintiff |
| v | |
| ONUR PTY LTD (ACN 101 183 804) | First Defendant |
| and | |
| KAPLAN BUILT PTY LTD (ACN 635 616 894) | Second Defendant |
| and | |
| ICON SCAFFOLDING | Third Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19, 20, 23, 24, 25, 26, 27 and 30 June 2025 | |
DATE OF RULING: | 9 July 2025 | |
CASE MAY BE CITED AS: | Adib v Onur Pty Ltd & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 939 | |
RULING
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Subject:EVIDENCE
Catchwords: Workplace injury – negligence – breach of statutory duty – admissibility of opinion evidence contained in WorkSafe Entry Reports
Legislation Cited: Occupational Health and Safety Regulations2017; Occupational Health and Safety Act2004; Evidence Act2008 (Vic); County Court Civil Procedure Rules2018
Cases Cited:Adib v Onur Pty Ltd & Ors (Ruling No 1) [2025] VCC 938; Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 9) [2012] VSC 340; RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Ruling: Parts of the WorkSafe Entry Reports inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms K Popova | Zaparas Lawyers |
| For the First Defendant | Mr F A L Ryan SC Ms C A Kusiak | TG Legal + Technology |
| For the Second Defendant | Mr D Churilov | Barry Nilsson |
| For the Third Defendant | Mr G A Worth | Sparke Helmore |
HER HONOUR:
Introduction
1The background to this proceeding is set out in my first ruling.[1]
[1]Adib v Onur Pty Ltd and Ors (Ruling No 1) [2025] VCC 938
2In the course of evidence-in-chief of Mr Glen Spaulding, a retired WorkSafe inspector, Mr Adib sought to tender two WorkSafe Entry Reports dated 17 October 2019. The reports were authored by Mr Spaulding, who attended the property on the day of the incident.
3The first Entry Report was issued to The Trustee for Onur Family Trust (“the Onur Entry Report”).
4The second Entry Report was issued to Haas Kaplan (“the Kaplan Entry Report”).
5Counsel for Kaplan Built Pty Ltd (“Kaplan”) and counsel for Icon Scaffolding (“Icon”) submitted that parts of the Entry Reports were inadmissible, or ought not to be admitted.
6In the course of submissions, Senior Counsel for Mr Adib conceded that the second paragraph on page two of the Kaplan Entry Report, which referred to regulation 118 of the Occupational Health and Safety Regulations2017 (“the Regulations”) and s21 of the Occupational Health and Safety Act2004, ought to be redacted.[2]
[2]Transcript (“T”) 403-404
7At the conclusion of the parties’ submissions, I ruled that the following parts of the Entry Reports were inadmissible:
(a) In paragraph 2 of the Kaplan Entry Report and the Onur Entry Report – the second half of the first sentence that stated “which is marginally greater the maximum allowable gap of 225mm (per AS/NZ 1576.1)”;
(b) In paragraph 2 of the Onur Entry Report, the first paragraph on page two, which stated “The use of the incomplete or unsafe scaffold may place persons at risk of injury as a result of falling from height”.
8In order not to delay the trial, I gave brief reasons for my ruling and indicated that I would provide a written ruling in due course if required. These are my reasons.
The relevant issues
9A primary issue in the proceeding was the width of the gap between the edge of the scaffolding and the face of the building on the day of the incident.
10Photographs of the scaffolding taken on the day of the incident appeared to show two missing mid rails and a missing plank.[3] Mr Adib did not allege that those matters were implicated in the happening of the alleged incident.
[3]Exhibit P1
11Four excerpts were in contention.
12In paragraph 2 of each Entry Report, Mr Spaulding stated as follows (the words in bold have been added to identify the excerpt in contention (the first excerpt)):
“Due to windows being rebated back from the building line, the gap between the scaffold and the windows was 240mm, which is marginally greater the maximum allowable gap of 225mm (per AS/NZ[S] 1576.1). A plank was missing from a work platform and 2 mid rails were missing. The missing plank and mid rails were reinstated and internal guard rails were installed in front of the windows.”
13In paragraph 2 of the Kaplan Entry Report, Mr Spaulding stated (the second excerpt):
“The use of the incomplete or unsafe scaffold may place persons at risk of injury as a result of falling from height.”
14In paragraph 3 of the Kaplan Entry Report, Mr Spaulding stated (the third excerpt):
“I reasonably believe that the above contravention was remedied at the time of the inspection.”
15On page two of the Onur Entry Report, and page 3 of the Kaplan Entry Report, in what appears to be a pro forma section, the following appears (the fourth excerpt):
“OFFENCE
The following Acts, including any regulations made under them carry varying offences such as failure to meet duties and obligations, non compliance with a notice or direction issued or made by an inspector and hindering or obstructing an inspector in the exercise of their powers:
● Occupational Health and Safety Act2004
● Dangerous Goods Act1985
● Equipment (Public Safety) Act1994
For specific details about offences and subsequent penalties refer to the specific Act or regulation.”
Applicable principles
16The principles applicable to the admissibility of opinion evidence from an expert engaged by a party are well established and were not in dispute.
17The relevant sections of the Evidence Act2008 (Vic) are as follows:
“76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
…
78 Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
79 Exception—opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
…
135General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing: or
(c) cause or result in undue waste of time; or
(d)… .”
18Order 44 of the County Court (Civil Procedure) Rules 2018 regulates the adducing at trial of the evidence of a person as an expert.
19In Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 9),[4] J Forrest J considered the requirement for compliance with Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in circumstances where opinion evidence is sought to be led from an expert who was not “engaged” by the party calling the witness. J Forrest J observed:
[4][2012] VSC 340 (“Matthews”)
“17. There are two other categories of opinion evidence, aside from that of the independent experts, which should now be mentioned.
18. One is that of witnesses not ‘engaged’ by the party calling the witness and who will not provide an expert report in compliance with r 44.03. In the main, these witnesses have been involved in investigations into the fire and its cause and will give evidence as to factual matters surrounding the fire and the allegations made by the parties. It is also sought to lead opinion evidence from these witnesses who, for various reasons, cannot be engaged to provide an opinion. A further issue with these witnesses, as well as the third category, is whether the evidence sought to be adduced is truly an opinion within the meaning of s 79 and r 44.03.
…
26. In my opinion, in this State the general rule should be that a witness expressing an opinion should, where practicable, comply with the provisions of O 44 – and particularly the Code.
27.However, the rule cannot have an application to a situation in which a party seeks to lead opinion evidence from a witness in circumstances where it is either impractical or unlikely that the witness will consent to an engagement to provide a report under the terms of r 44.03. It was not the intention of r 44.03(1) that the party should be shut out from adducing that evidence because of this problem; so much is clear from the opening words of that part of the rule. Rather, the purpose behind r 44.03 is to ensure that experts engaged by the parties for the purpose of providing an ‘independent’ opinion understand their obligation to the Court, as well as the necessity for the report to disclose the essential requirements for the opinion to be admitted as evidence.
28.There is a reality in litigation that needs to be understood in determining whether to exempt a witness who proposes to express an opinion from compliance with O 44 and the Code – it is this: often witnesses who have been involved in the investigation of matters the subject of a particular piece of litigation are not prepared to provide a report compliant with O 44. Many will have valid reasons (including a desire to avoid being caught up in the adversarial system) for not providing a report. In some cases, such witnesses will have been engaged by persons or organisations other than the combatants at the trial. In such cases, the potential witness will often have first hand knowledge of the evidentiary matters and in all likelihood possess a far greater contemporaneous knowledge of the surrounding circumstances under inquiry than a retained ‘independent’ witness. Strict compliance with r 44.03 would shut such opinions out, notwithstanding that the witness has much to offer in ensuring a fair determination of the trial issues.
…
31.Concluding that r 44.03 is confined in its application to an independent expert witnesses does not relieve the party calling a witness to express an opinion, not covered by r 44.03, to conform with a number of essential requirements prior to that witness being permitted to give expert evidence. Absent good reasons, the other parties and the Court should be informed of:
(a) the witness’s training, study or experience;
(b) the facts, matters and assumptions upon which the opinion is based (often this may simply be the observations made by the witness at a particular event);
(c) the substance of the opinion; and
(d) the reasoning underpinning the opinion which is to be expressed.
…
33.In other cases where the evidence has not yet been adduced or placed into written form, it will be necessary for the party calling that witness to provide the details I have identified.”
(emphasis added)
Mr Adib’s submissions
20Senior Counsel for Mr Adib submitted that the excerpts in contention were factual conclusions rather than opinions.
21Alternatively, the first excerpt was a factual matter based on Mr Spaulding’s observation.
22The second excerpt was a statement of fact. Senior Counsel submitted, “You don’t need to be an expert to say that the use of an incomplete or unsafe scaffold may place a person at risk”.[5]
[5]T426
23If the first and second excerpts were opinions, Mr Spaulding possessed relevant specialised knowledge based on his training, study or experience.
24The opinions should be permitted without compliance with Order 44 given Mr Spaulding was not an expert “engaged” by Mr Adib, but an independent expert.
25If the third excerpt correlated to the immediately preceding paragraph (which related to the Occupational Health and Safety Act), Mr Adib would not seek to rely upon it. If it related to other identified problems with the scaffolding, it was admissible.
Defendants’ submissions
26Counsel for Kaplan submitted as follows:
(a) the first excerpt is an opinion on the operation of the Australian and New Zealand Standard 1576.1 (“the Standard”);
(b) the second excerpt is an opinion about scaffolding safety and risk;
(c) neither the first or second excerpt is admissible as a lay opinion as it is not necessary to obtain an adequate account or understanding of Mr Spaulding’s perception of a matter or event;
(d) there was no evidence that Mr Adib sought, but had been unable to obtain, a report in compliance with Order 44;
(e) the reasoning underpinning the opinion as to the operation of the Standard was not expressed;
(f) in Matthews, a ruling was being made in advance of the trial, and the evidence to be adduced from the experts had already been adduced in the Royal Commission. That was not the situation here;
(g) the third excerpt related back to the immediately preceding paragraph, which was not relied upon. It should also be redacted;
(h) the reference to offences in the fourth excerpt was liable to confuse the jury, and/or the probative value was substantially outweighed by the unfair prejudice to Kaplan.
27Counsel for Icon joined in the submissions made by Kaplan and further submitted:
(a) the time for provision of the matters identified in paragraph 31 of Matthews, is not during the evidence-in-chief of the expert witness at trial;
(b) the definition of the working face of a building or structure in the Standard is “opaque”. In that context, the first excerpt must therefore be an opinion, not a statement of fact.
Consideration
28Unlike in Matthews, here, a ruling is being sought in the running of the case. It is not an anticipatory ruling. Nor is it a ruling being sought in circumstances where the witness’ evidence has already been given, and cross-examined upon, in other proceedings.
29There was no evidence before the Court that it was impractical to comply with Order 44, or that Mr Spaulding did not consent to an engagement to provide a report under the terms of r44.03.
30However, given Mr Spaulding’s involvement as a WorkSafe inspector, I find that this is a circumstance where compliance with Order 44 may not have been practicable. That does not relieve Mr Adib of the obligation to conform to those essential requirements, identified at paragraph 31 of Matthews, prior to the witness being permitted to give expert evidence. Of particular relevance here, is the requirement to inform the other parties and the Court of the reasoning underpinning the opinion to be expressed.
The first excerpt
31The first excerpt could be one of two things:
(a) If it was a matter of fact, it would be apparent to the jury if, and when, the Standards were given to them. Mr Spaulding does not need to say it; or
(b) Alternatively, it was an opinion about an interpretation of the Standard.
32In my view, it was likely not a factual conclusion as it was not evidence based upon Mr Spaulding’s observations and/or scientific or specialised analysis.[6]
[6]Matthews at 38
33I find the first excerpt is more likely an opinion, rather than a fact. That is, it is evidence of a conclusion, which is judgmental or debatable, reasoned from facts.[7]
[7]RW Miller & Co Pty Ltd v Krupp (Australia ) Pty Ltd (1991) 34 NSWLR 129
34The reasoning underpinning the opinion is absent.
35In those circumstances, the first excerpt is not admissible.
The second excerpt
36The second excerpt is best described as a “motherhood statement”. As Senior Counsel for Mr Adib acknowledged, the jury did not need to be told something so obvious by an expert.
37As an opinion, the second excerpt appeared to embrace all of the issues identified by Mr Spaulding on the day of his inspection, including those that were not implicated in the alleged fall which was the subject of this proceeding.
38The reasoning underpinning this vague statement was not elucidated in any meaningful way.
39In the circumstances, the second excerpt is inadmissible opinion evidence.
The third excerpt
40I find that the use of the word “contravention” in this excerpt likely related back to the reference to a contravention of the Occupational Health and Safety Act in the immediately preceding paragraph. Mr Adib did not seek to adduce that paragraph.
41If the paragraph remained, it could also be understood in the context of Mr Spaulding’s evidence that the problems he identified with the scaffolding were remedied while he was at the property.
42In those circumstances, I determined that, whilst admissible, counsel would need to take care not to elicit evidence of any contravention of the Occupational Health and Safety Act.
The fourth excerpt
43Senior Counsel for Mr Adib made no submissions in relation to this.
44These are obviously pro forma parts of the WorkSafe Entry Reports.
45In my view, it is not appropriate to delete them. I am not persuaded that there is any unfair prejudice that arises from those sections which significantly outweighs their probative value. It is very unlikely the jury would find them misleading or confusing.
Conclusion
46The following parts of the Entry reports are not admissible:
(a) In paragraph 2 of the Kaplan Entry Report and the Onur Entry Report – the second half of the first sentence that stated “which is marginally greater the maximum allowable gap of 225mm (per AS/NZ 1576.1)”;
(b) In paragraph 2 of the Onur Entry Report, the first paragraph on page two, which stated “The use of the incomplete or unsafe scaffold may place persons at risk of injury as a result of falling from height”.
47The remainder of the two WorkSafe Entry Reports are admissible.
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