Bersee v State of Victoria
[2020] VCC 1940
•10 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION GENERAL LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-19-01219
| ARTHUR BERSEE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSALAMANDRIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 November 2020 |
| DATE OF RULING: | 10 December 2020 |
| CASE MAY BE CITED AS: | Bersee v State of Victoria |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1940 |
REASONS FOR RULING
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Subject: EVIDENCE
Catchwords: Opinion – expert evidence – orthopaedic engineer – admissibility of expert evidence
Legislation Cited: Evidence Act 2008
Cases Cited: HG v The Queen [1999] HCA 2; Makita (Australia) Pty Ltd v Sprowles
(2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21
Ruling: Expert report not admissible
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr P Hayes QC with Mr J Angenent | Patrick Robinson & Co Lawyers |
For the Defendant | Ms B Myers with Ms F Blair | Minter Ellison |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Preliminary
1Dr Bersee claims damages for a psychiatric injury he sustained during the course of his employment as a woodwork teacher at Williamstown High School. Dr Bersee claims that he was initially required to teach up to 22 students in the woodwork room, but that, in 2014, this increased to 25 students per class. Specifically, he claims the defendant was negligent for requiring him “to teach a greater number of students than the woodworking workspace safely accommodated”. Further, Dr Bersee claims the defendant was negligent for requiring him to teach an excessive number of classes, with inadequate preparation time, as well as insufficient assistance to maintain the woodworking equipment. Dr Bersee claims the defendant’s negligence caused him to suffer a psychiatric injury.
2Dr Bersee also claims that, as a result of his psychiatric condition, his attention and concentration was impaired such that he was distracted in woodwork classes, which resulted in injuries to his hands in May 2014, May 2015 and October 2015.
3Dr Bersee seeks to call Dr Andrew Short, an orthopaedic engineer, in relation to an opinion dated 6 February 2020. This expert report was served on the defendant soon thereafter. In March 2020, Dr Bersee sought leave to amend the Statement of Claim to include a claim for negligence in relation to unsafe guarding on machines in the woodwork room, resulting in physical injuries to him. The application was made before his Honour Judge Pillay and, on 20 March 2020, he ruled that the Statement of Claim could not be amended to expand Dr Bersee’s claim in that way. At the time his Honour ruled on this, he also ordered that the report of Dr Short could not be admitted as evidence.
4There is no transcript of the application before his Honour Judge Pillay, and his ruling does not provide an analysis of the report of Dr Short. It would
appear that his Honour denied Dr Bersee’s ability to rely upon this report, based upon his ruling that the Statement of Claim could not be amended to include a claim that the defendant was negligent for not guarding its machines. In such circumstances, I permitted Mr Hayes to make submissions as to the admissibility of this report, based upon the pleading in the trial presently before me.
5The defendant objected to Dr Short’s report being admitted for the following reasons:
(i)that Dr Short had failed to establish he is sufficiently qualified to provide an expert opinion in this matter;
(ii)that his path of reasoning is inadequate;
(iii)that there is no adequate explanation for the late reliance on this report.
6I indicated to the parties that, in considering the admissibility of this report, I would not consider the defendant’s submissions in respect of what it considered was unexplained late reliance on this report. Instead, in the event that I was satisfied that Dr Bersee should be permitted to rely upon Dr Short’s report, I would then hear from the defendant as to any prejudice it would suffer from this, and whether an adjournment of the proceedings was required and justified.
Principles relevant to admissibility of expert evidence
7The starting point for the admissibility of evidence, is s55(1) of the Evidence Act 2008 (Vic), which provides that:
“evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
8Section 79(1) of the Evidence Act deals with the admissibility of opinion evidence.
9Mr Hayes referred me to the decisions of HG v The Queen (HG)1and Makita (Australia) Pty Ltd v Sprowles (Makita).2Both cases set out the principles relevant to the consideration of whether an expert opinion is admissible.
10In HG, Gleeson CJ stated that:
“the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.”3
11In Makita, Heydon JA stated that for an expert report to be useful:
“it was necessary for it to comply with a prime duty of experts in giving evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.”4
12The principles outlined in Makita were subsequently approved by the High Court in Dasreef Pty Limited v Hawchar (Dasreef).5 Heydon J stated that s79 identifies two criteria for opinion evidence to be admissible:
“The first is that the witness who gives the evidence ‘has specialised knowledge based on the person’s training, study or experience’; the second is that the opinion expressed in evidence by the witness ‘is wholly or substantially based on that knowledge’.6
Dr Short’s opinion
13There were aspects of Dr Short’s report which Mr Hayes accepted were inadmissible given his Honour Judge Pillay’s previous ruling and, in particular, the parts relevant to the guarding of machines. However, there were two aspects of Dr Short’s report which Dr Bersee seeks to rely upon.
(i) class size
14
Dr Short referred to the 2006 Building Code of Australia and stated that in the Code there was a provision for escape in case of emergency. Dr Short then
[1999] HCA 2
(2001) 52 NSWLR 705
[1999] HCA 2 at [39]
(2001) 52 NSWLR 705 at [59]
[2011] HCA 21
Ibid at [32]
referred to paragraph D1.13 of the Code, which set out the recommended square meters per person for areas in different types of buildings, including the following rooms:
“School:
General classroom : 2m2 per person; Multi-purpose hall : 1m2 per person; Staffroom : 10m2 per person;
Trade and practical area – Primary 4m² per person; Secondary: As for workshop.
Workshop:
For maintenance staff: 30m² per person;
For manufacturing processes: As for factory.
Factory:
(a) machine shop, fitting shop or like place for cutting, for cutting, grading, finishing or fitting of metals or glass, except in the fabrication of structural steelwork or manufacture of vehicles or bulky products: 5m² per person;
(b) areas used for fabrication and processing other than those in (a): 50m² per person;
(c) a space in which the layout and natural use of fixed plant or equipment determines the number of persons who will occupy the space during working hours: Area per person determined by the use of the plant or equipment.”
15Dr Short also referred to the Victorian Government Schools Agreement 2013, and its provisions in respect of class size.
16Dr Short then stated that he was of the opinion that the Building Code of Australia states “in a roundabout way” that there is meant to be 5m² per student in a woodwork space and that, as the woodwork room at Williamstown High was 99m², the “building is designed for escape provision for 20 students in the area”.
17I consider Dr Short’s reference to Building Code requirements in respect of evacuation irrelevant to the circumstances in which Dr Bersee claims to have
suffered his psychiatric injury. If Dr Bersee’s injury had come about due to a fire evacuation of students, that Code would be highly relevant. However, in this case, Dr Bersee’s complaint is about the number of students in relation to the safe supervision and noise generated by them, not his concern in relation to their safe evacuation. I therefore consider Dr Short’s opinion on this aspect of his report fails to satisfy the test of relevance under s55 of the Evidence Act.
18However, even if such evidence was relevant, Dr Short’s opinion that the Code in a “roundabout way” requires 5 square metres per student in a woodwork room, is vague and non-specific, with no explanation as to the basis of his opinion on this. Indeed, it was for Mr Hayes to explain the assumptions that needed to be made by looking at the table, and moving from the requirements of a trade and practical area in a secondary room, then a workshop and then a type of factory, to adduce where the 5 square meters came from.
19This explanation, and the reasons for it, were not given by Dr Short. I consider that this aspect of his opinion fails to satisfy what Heydon JA stated in Makita, is expected of an expert’s opinion – that it furnishes the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. Nor does it satisfy the expectations identified by Gleeson CJ in HG. I therefore rule this aspect of Dr Short’s report is also inadmissible under s79 of the Evidence Act.
(ii) Cognitive load
20The second aspect of Dr Short’s report which Dr Bersee seeks to rely upon is his opinion in respect of cognitive load.
21Dr Short stated:
“The mechanism of the finger injuries was complex and due to many factors that added layers of cognitive load.”
22In a footnote, Dr Short gave the following example of cognitive load:
“When writing this report at home I had noise and requests from my family, the television, the radio and the childcare centre over the fence. These noises and requests generated a load on my working memory (cognitive load) so it was difficult for me to write. My working memory is limited by capacity and time. I had to retreat to my office where there were no noises that I had I might have to respond to – I finished the report in less time than it would have been finished at home.”
23Dr Short stated at the time of the incident on 16 October 2016:
“Dr Bersee may have been fatigued with six classes in a row and two days every week, which can lead to a person to make poor decisions and be slow to react and be complacent.
The noise in the classroom was too high and this is also a distraction and adds to the cognitive load.”
24In a footnote to the above paragraph, Dr Short stated:
“I learnt about cognitive load at Monash University Accident Research Centre (MUARC) during my post doctorate there from 2002-2004.”
25In his report, Dr Short describes himself as an orthopaedic engineer. He has a BA (with Honours) in Natural Sciences from Trinity College, in Dublin. Dr Short subsequently obtained his Doctorate of Philosophy in Engineering Science at the University of Oxford, which was in photogrammetry, including developing image processing techniques to track the progress of knee replacements. In his curriculum vitae, Dr Short stated that this photogrammetry and mathematics later assisted him to conduct CCTV analysis and vehicle collision analysis.
26Dr Short’s Post Doctorate was in accident statistics at Monash University’s Accident Research Centre. He previously lectured in Human Injury Mechanics at the University of Melbourne and is an Honorary Fellow there. Dr Short is on the board of editors for the Journal of Forensic Biomechanics and has been on the ASTM committee for safety in sport equipment. In addition, Dr Short has been a member of the Australian Academy of Forensic Sciences since 2013. Dr Short won a Victorian WorkSafe Award for a kick out rail concept now used at multiple race tracks in Victoria. Dr Short stated that
he has provided opinion in over 1000 court cases, and is a co-author of a chapter on “Slips, Trips and Falls” in “Handbook of Human Motion” published in 2018, and an author of a chapter on Expert Evidence in “Traffic Accidents Investigation Analysis and Reconstruction” published in 2008.
27On the face of his curriculum vitae, I am not satisfied that Dr Short has sufficient specialised knowledge in the concept of cognitive load. He is eminently qualified as a Doctor of Philosophy with a specialised interest in engineering and physical accidents, and if this involved a negligence claim for Dr Bersee’s hand injuries, there could be no question as to Dr Short’s expertise in commenting on the causes relevant to that. However, in respect of his specialised knowledge in cognitive load, Dr Short simply stated that he “learnt” about this whilst doing his post doctorate studies. I consider his vague reference to some learning on this topic insufficient to qualify him has an expert. As for Dr Short’s difficulties writing his report from home, that may well accord with many people’s experiences during recent COVID-19 restrictions, but that is not a basis to constitute specialised knowledge.
28Mr Hayes submitted that it would be open for Ms Myers to cross-examine on his expertise. However, that presumes that, on the face of it, Dr Short’s expertise is sufficient to justify him being called to give evidence, and such cross-examination would then go to the weight of his opinion. For the reasons stated above, I am not satisfied that Dr Short has sufficient specialised knowledge to permit him to give evidence on this.
29However, even if I accepted that Dr Short was sufficiently qualified, I once again consider his opinion on Dr Bersee’s cognitive load to be so vague, that it fails to provide sufficient criteria to enable me to sensibly evaluate the validity of his conclusions. I consider that there was no adequate statement of reasoning within his report, and therefore Dr Short’s opinion on this must be inadmissible.
30For those reasons, I will not permit Dr Bersee to rely upon any aspect of Dr Short’s opinion.
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