Alapic v Venture Campbellfield Pty Ltd (Deregistered) (No 2)
[2024] VCC 1849
•11 November 2024 (Unrevised) 22 November 2024 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-00731
| KATICA ALAPIC | Plaintiff |
| v | |
| VENTURE CAMPBELLFIELD PTY LTD (DEREGISTERED) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2024 | |
DATE OF RULING: | 11 November 2024 (Unrevised) 22 November 2024 (Revised) | |
CASE MAY BE CITED AS: | Alapic v Venture Campbellfield Pty Ltd (Deregistered) (No 2) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1849 | |
RULING (No 2)
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Subject:Expert evidence admissibility
Catchwords: Voir dire – expertise – risk – risk of injury – expert evidence – whether expert evidence admissible
Legislation Cited: Evidence Act 2008 (Vic); County Court Civil Procedure Rules2008 (Vic)
Cases Cited:HG v The Queen (1999) 197 CLR 414; Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; Baulch v Lindoch Warrnambool & Anor (Ruling No. 3) [2008] VSC 420; Surmon v Herald & Weekly Times (Ruling No 1) [2011] VSC 606
Ruling: Certain parts of the expert opinion ruled inadmissible
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M A Hartley KC with | Maurice Blackburn Pty Ltd |
| A C Dimsey | ||
| For the Defendant | D McWilliams SC with N Dunstan | Wisewould Mahoney |
HIS HONOUR:
1The plaintiff in this case seeks to adduce evidence from Mr Contoyannis in accordance with a report of his dated 21 February 2024.[1]
[1]Exhibit voir dire P1
2It is the plaintiff’s case that, throughout the course of her employment with Venture Campbellfield Pty Ltd from late 1999 to 2016, she sustained injury to her left foot. This was described in evidence as metatarsalgia and a Morton’s neuroma. It is pleaded that such injuries resulted from her requirement to perform strenuous manual handling while operating a draping machine which attached vinyl to plastic parts. Specifically, the operation of that machine required her to repeatedly rise up onto her tiptoes while leaning forward to place and remove the parts in the machine.
3The defendant objects to certain parts of Mr Contoyannis’ report: not its entirety. Those objections can be classed into the following categories:
(a) Section 6: irrelevancy to the ultimate opinion; alternatively, a failure to explain how the cited material is used in reaching the opinions proffered by Mr Contoyannis;
(b) Section 7, subparagraphs 7.2, 7.4, 7.5, 7.6 and 7.7 – not the witness’s area of expertise, but, rather, medical opinion;
(c) subparagraphs 7.8, 7.9, 7.10, 7.11, 7.12 and 7.19 – not expert opinion and also medical opinion;
(d) subparagraphs 7.1.3, 7.1.4, 7.1.5, 7.1.6 and 7.1.7 – not expert opinion and rather commonsense;
(e) subparagraphs 7.18 and 7.27 – no path of reasoning;
(f) subparagraphs 7.21 – refers to the Code of Practice for Manual Handling (the Code), which is not pleaded.
Relevant principles
4The relevant principles were broadly not in dispute. There was no doubt that the opinion of Mr Contoyannis were relevant to the issues in this case. As the evidence is opinion evidence, it must satisfy s79(1) of the Evidence Act2008 (Vic), which states:
“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.”
5As was said by Gleeson CJ in HG v The Queen:[2]
“This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. … .”
[2](1999) 197 CLR 414 at 429, paragraph [44]
6Later, in the seminal decision of Makita Australia Pty Ltd v Sprowles,[3] Heydon JA stated:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. … .”
[3](2001) 52 NSWLR 705 at paragraph [85]
7To add to those principles, I will also make some reference to order 44 of the County Court Civil Procedure Rules 2008 (Vic) (“the Rules”). I do not need to set this rule out in broad compass, simply mention it, as it was raised by the parties briefly. I will address that submission later on.
The Defendant’s application
8A voir dire was held on day six of the trial and Mr Contoyannis was called and cross-examined. It is broadly accepted that he has expertise as a professional consulting mechanical engineer with a Masters’ degree in biomedical science.[4] I will not repeat his extensive curriculum vitae, given the objections were not directed to his expertise wholly. Most relevantly in cross-examination, Mr Contoyannis conceded that, while he could give evidence as to loads, postures and risk of injury, he could not opine on the causation of the injury. He readily conceded many of the subparagraphs in Section 7 fell foul of this bright line which separated his evidence from that of a medical expert.[5] He explained that he had intended to convey, in those paragraphs at Section 7, matters only to do with risk of injury and not addressing the issue of causation of the injury itself.
[4]Exhibit voir dire P1
[5] T 484
9The plaintiff’s counsel accepted that concession, however argued that this meant Mr Contoyannis ought to be permitted to give evidence in that manner only and steer clear of any opinion on medical causation. Before coming to deal with that, I will deal with matters sequentially, in accordance with the principles I have set out above and beginning with the objection in respect of Section 6.
10The plaintiff submitted that Mr Contoyannis was simply setting out the broad knowledge base on which he was drawing for his opinion. The defendant submitted it was completely unclear in what way the broad sweep of materials listed informed Mr Contoyannis’ opinions ultimately expressed. I accept the defendant’s submission. To draw on what his Honour Heydon JA stated in Makita:
“… the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is … and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. … .”
11Here, there is simply no effort to link the specialised knowledge, which I infer is obtained through the listed materials in Section 6, to the opinion ultimately expressed. I rule reliance on Section 6 inadmissible, save for the reference to the Code of Manual Handling, which I will deal with under subparagraph 7.28 below.
Section 7
Subparagraphs 7.2, 7.4, 7.5, 7.6, 7.7
12The plaintiff conceded that Mr Contoyannis could not give evidence as to medical causation of the injury. However, the plaintiff submitted that he ought be allowed to give evidence confined to “risk of injury”. This was said to rely on order 44 and his Honour J Forrest J in Baulch v Lindoch Warrnambool & Anor (Ruling No. 3),[6] in which his Honour essentially opined that order 44 was not a straitjacket limiting a witness simply to the words of their report. His Honour said, at paragraph 8:
“… It does not in my view inhibit a party from leading further evidence at the trial of the proceeding to endeavour to satisfy the court that the expert has the relevant expertise or that the opinion flows from that expertise and its application to the facts.”
[6][2008] VSC 420 at paragraphs [7]-[9]
13Dealing with the paragraphs as they currently are, they clearly and impermissibly stray into purported medical opinion. This is outside the witness’ expertise, and such evidence cannot satisfy the test in s79. I rule out these paragraphs. I would add that that it is not possible, as the plaintiff urges, to parse each paragraph to identify whether it goes to injury or risk of injury, because each paragraph is tied up so intimately with the causation of injury.
14Further, I do not accept that Mr Contoyannis’ evidence given in these paragraphs can simply be confined by transposing the words “risk of injury” in place of the word “injury.” They are two entirely different concepts. To reach the conclusion that something leads to an injury, or “risk of injury” involves an exposition of very different paths of reasoning, for example. There is no notice of what that is. This, too, makes the proposed evidence inadmissible.
Subparagraphs 7.8, 7.9, 7.10, 7.11 and 7.12
15For the same reasons as immediately above, these paragraphs are inadmissible.
Subparagraphs 7.13, 7.14, 7.15, 7.16 and 7.17
16These paragraphs were objected to as being an expression of no more than “commonsense.”[7] I took that to mean that it was not an expert opinion, in that it was not specified how it arose from Mr Contoyannis’ specified field of study. The plaintiff pointed to the case of Surmon v Herald & Weekly Times (Ruling No 1) in support of her counter argument.[8] While that case dealt with a slightly different objection (incongruity of the factual evidence to the assumptions of the expert), his Honour Kaye J made the point that the evidence on the voir dire can be useful in determining the issue as to admissibility. Here, the report of Mr Contoyannis, itself, does not adequately link his specialised knowledge to the “discomfort policy”. However, in the voir dire, that link was made, stemming from his experience in risk assessment in workplaces and the need to proactively engage the workforce in identifying risk.[9] On the basis of that evidence in the voir dire, I consider these sections of his report admissible.
[7] T487 L15
[8][2011] VSC 606
[9] T487 - 488
Subparagraphs 7.18 and 7.27
17I uphold the objections of the defendant in each of these paragraphs, as there is no adequate path of reasoning exposed. These paragraphs are inadmissible.
Subparagraphs 7.19
18This paragraph was objected to on the basis that it was an expression of impermissible medical opinion.[10] I do not uphold this objection. The words of the written report do not attempt to elucidate any medical opinion. Further Mr Contoyannis made clear in evidence that his opinion was focused on the risk of injury. This is consonant with his expression of his opinion in subparagraph 7.19.
[10] T 491 L5 – L8
Subparagraph 7.21
19The defendant objects to this paragraph on the grounds that the Code has not been pleaded. However, quite clearly, the issue of risk assessment has been an issue between the parties.[11] In that circumstance, while the specifics of the Code have not been pleaded, Mr Contoyannis is, in fact, setting out the basis for his expert opinion as to why the duties of the plaintiff constituted a risk and was subject to being assessed. That squarely falls within the parameters of what his Honour J Forrest J was referring to in the quote set out above from Baulch. On that basis, I consider this paragraph of Mr Contoyannis’ report is admissible.
[11]See paragraph 10(ii) of the Further Amended Statement of Claim
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