Bennett v Newcastle City Council (No. 1)

[2023] NSWDC 225

District Court

New South Wales

Medium Neutral Citation:	Bennett v Newcastle City Council (No. 1) [2023] NSWDC 225
Hearing dates:	26-27 April 2023
Date of orders:	27 April 2023
Decision date:	27 April 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See pars [2]-[10].
Catchwords:	CIVIL – EVIDENCE – EXPERT EVIDENCE – OBJECTION - Objection taken to parts of expert report of Denis Cauduro – Whether to admit unsubstantiated evidence - Whether Denis Cauduro has sufficient expertise to give evidence in “cognitive economics”.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Linda Karen Bennett Defendant – Newcastle City Council
Representation:	Counsel: Plaintiff – Mr Anderson, E. Defendant – Ms Epstein, B. Solicitors: Plaintiff – LawPartners Defendant – Moray & Agnew
File Number(s):	2022/00088033
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: Objection is taken to ss 3 and 4 of a report of Denis Cauduro which bears on its cover sheet the date 21 September 2022. The report is divided into five sections. The first section is an introductory section. The second section is headed "The Incident And The Situation" and no objection is taken to any part of that because it is clear what the witness was relying upon. Objection is taken to sections 3 and 4 on the report.

2. Paragraph 3.1 refers to a work: "The relationship between slips, trips and falls and the design and construction of buildings" made in 2008. That is referred to by the author as the "NUARC Report". A copy of it has not been provided to the Plaintiff. The substance of the paragraph is a quotation from that work. The Plaintiff, not having provided the work to the Defendant, the tender of para 3.1 is rejected.

3. A similar objection was made to pars 3.2, 3.3, 3.4, 3.5 and 3.6. I have been told that a copy of the page upon which the extract that is quoted by the author has been provided to the Defendant, but not, for example, the covering pages which might describe the authors, and their qualifications, and the source of the work. I admit the pars 3.2 to 3.5 provisionally. The author is present to be cross-examined and can be cross-examined about the outstanding matters, that is, the authors of the work, their qualifications, et cetera.

4. Paragraph 3.6 refers to three Australian Standards, one published in 2006, one published in 2008, and one published in 2009. Again, extracts of those Standards have been provided but the author does not state how those Standards might be applicable to a building, the substance of which was erected in December 2004. Furthermore, the three Standards quoted give three different values for the recommended level of illumination of various parts of a building open to the public. The document is internally confusing. I reject the tender of par 3.6, but grant the Plaintiff leave to adduce evidence orally that is logical and coherent and explains the witness' opinion.

5. Paragraph 3.7 makes two quotations, the source of the quotations is unknown. The first refers to "perceptual ergonomics". The second refers to "cognitive ergonomics". It is accepted by the Plaintiff that the witness has no expertise in human cognition and therefore what he describes as "cognitive ergonomics" cannot form any part of his opinion. I allow par 3.7 to remain provided that the witness gives evidence as to the source of the quotations.

6. Paragraph 3.8 in my view is an ipse dixit, that is the witness makes a statement without giving any reasons for it. I admit the statement provisionally, the provision being that the Plaintiff explain the reasons for the statement.

7. Paragraph 3.10 is rejected as an issue outside the witness' expertise. Likewise, par 3.11 is rejected because it relies upon "cognitive ergonomics". Paragraph 3.12 is also rejected, that is, a summary which states, inter alia, "Artificial lighting was not adequately provided to Australian Standards" without stating what the Standard is and why it is applicable to this building.

8. There is no objection to have par 3.13. I reject paras 3.14, 3.15 and 3.16. Paragraph 3.14 is postulated on a table quoted from another work, "Body space - anthropometry ergonomics and design", and a copy of which has not been provided to the Plaintiff. It is also problematic as to what the paragraph means and how it might be relevant. Paragraph 3.15 it contains an assertion that this was a "non-conforming stairway", whatever that might be, because he doesn't state to what it is that the stairway ought to have conformed.

9. Paragraph 3.16 is again rejected because the witness, who by background is a builder and whose sole tertiary qualification is a degree of Master in Ergonomics, Health and Safety awarded by the La Trobe University in 2016, is not able to comment on both diagnosis and causation of medical conditions. That paragraph is therefore also rejected.

10. The whole of s 4 is rejected because it postulates that the Work, Health and Safety legislation of this State affected the duty of the occupier of a theatre to which members of the public were admitted for fee or award governed the nature of the duty of care owed by the occupier of the premises to entrants as of right or licensees.