Christodoulou v Tunstall Square Fruit and Vegetables Pty Ltd

[2010] VCC 1638

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01179

MARIA CHRISTODOULOU	Plaintiff
v
TUNSTALL SQUARE FRUIT & VEGETABLES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11,12, 15, 16, 17 & 18 November 2010
DATE OF RULING:	18 November 2010
CASE MAY BE CITED AS:	Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1638

RULING

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Catchwords: Admissibility of expert evidence of ergonomist.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Zaparas Lawyers
Ms P R Riddell
For the Defendant	Mr P A Scanlon QC with	Thompson Lawyers
Ms H Donmez
HIS HONOUR:

1          An issue arose in the course of this trial as to the admissibility of evidence proposed to be given by Mr David Trembearth of WSP Environment & Energy. I was advised that the evidence was to accord with the report dated 27 August 2010. That report is an ergonomic report relating to the system of work which the plaintiff was undertaking over the relevant period of her employment, in particular on the 16 January 2008, as a result of which it is alleged she suffered injury to her right shoulder.

2          Mr Scanlon, on behalf of the defendant, took issue with the proposed evidence of Mr Trembearth on the following bases:

• Much of the opinion evidence of Mr Trembearth was essentially a medical opinion, and he had no sufficient medical qualification to give that opinion.

• Pursuant to the provisions of s.79 of the Evidence Act 2008, Mr Trembearth did not have “specialised knowledge based on … training, study or experience …” to give the opinion proposed.

• In part, Mr Trembearth’s opinion and conclusions were matters of common knowledge within the capacity of the jury to determine without expert evidence.

• In part, the conclusions were a matter of the ultimate issue in the proceedings and for the jury to determine.

• If the opinions were permitted pursuant to s.80 of the Evidence Act 2008, then I ought to exercise my discretion in s.135 of the Evidence Act to refuse to admit the evidence.

3          On 17 November 2010, I permitted a voire dire to be conducted with evidence given by Mr Trembearth as to the nature and extent of his training and experience, and whether the specialised knowledge derived therefrom was sufficient to enable him to render the opinions proposed in the report.

4          Mr Trembearth’s résumé contains details of his professional qualifications, certification, awards and appointments, and professional affiliations and experience.[1] Mr Trembearth also gave evidence specifically as to his training and experience as follows:

[1]             Report at pages 20-28

(a)	He has studied extensively in the areas of anatomy, biomechanics and injury movement. As part of his Bachelor of Applied Science in Human Movement, he studied physiology and anatomy.
(b)	He originally qualified as a teacher in mathematics and physical education and taught in that field for approximately ten years.
(c)	He then undertook studies in clinical massage, particularly in relation to the treatment of injuries, including workplace injuries. He ran a number of clinics and practised as a clinical masseur for seven years.
(d)	He then became involved in the area of workplace rehabilitation and worked over an extensive period in the placement of injured workers back into the workplace. This, he said, required extensive knowledge of stressors and strains placed upon the body and the risk of injury as a result. Over a number of years, he worked to ensure workplaces complied with safety requirements such as to prevent injury.
(e)	He worked for seven years as an ergonomist for a large company and was involved in hazard identification, reduction of workplace injuries and rehabilitation of injured workers.
(f)	He taught anatomy, physiology and pathology at Victoria University of Technology in Massage Therapy, particularly in the area of trigger point therapy.
(g)	He has advised various institutions, including courts, and in particular large supermarket chains in the establishment of safe working systems, including for cashiers at check out counters.
(h)	He is experienced in and advised in the area of “reach envelopes”, that is the safe placement of reach zones at workstations where various objects are reached for and lifted over different distances.
(i)	His further qualifications, experience and training as is set forth in his résumé.

5          Mr Trembearth described ergonomics as the science of the study of the workplace and how humans interact within it. The discipline considered the impact of the workplace and of tasks undertaken therein upon the human body.

6          In a general sense, I was impressed by the nature and extent of Mr Trembearth’s academic qualifications in the areas of physiology and anatomy and his knowledge and experience in relation to the impact of a workplace and work duties upon the musculoskeletal system.

7          Turning then to Mr Trembearth’s report which is said to be the basis upon which it is proposed he give evidence, paragraphs 1 to 8 set forth various preliminary matters and detail the facts and assumptions upon which Mr Trembearth’s opinion is based. It is noted that he did not have a view of the premises, but that is a matter for cross-examination rather than any basis to reject his evidence.

8          Paragraph 9 of his report is concerned largely with the Occupational Health and Safety Act 2004 (“the Act”), the Occupational Health and Safety (Manual Handling) Regulations 1999 and 2000 (“the Regulations”) and the Occupational Health and Safety (Manual Handling) Code of Practice 2000 (“the Code”).

9          Paragraph 9 is largely a recitation of the Act, the Regulations and the Code and the requirements of employers as are contained therein. There is no basis, in my view, to allow Mr Trembearth to simply recite to the jury the Regulations and whether, on the evidence of the case, there was a breach of the Regulations or the Code. The Regulations have been tendered into evidence, and it will be a matter for the jury to be satisfied whether the Regulations have been breached. To allow Mr Trembearth to do so would be to run the risk of investing his opinion on the matter with the appearance of authority with the added risk that the fact finding task of the jury would be subverted.[2]

[2]             See Baulch v Lyndoch Warrnambool (Ruling No 3) [2008] VSC 420 at paragraph 10. See further, Pritchard v Ardingly Pty Ltd (Unreported VSC, 10 October 2003, Case no. 1371 of 2002), Ruling of Kellam J.

10        I will not permit Mr Trembearth to give the evidence as is proposed in paragraph 9 of his report.

11        In paragraph 10, the author gives his “opinion and discussion”. In paragraph 10.1, he refers to the various tasks which the plaintiff undertook, describes the hazards involved, and refers to the risk of Musculoskeletal Disorder (MSD). Further, in paragraphs 10.4 and 10.5, he refers to the physical actions, in particular the lift by the plaintiff of a watermelon and the forces those actions and that lift were likely to place upon the plaintiff’s right arm and shoulder. He said that those actions and the lift were likely to injure or aggravate tissues of the shoulder joint. He states further, that the repetitive lifting over various reach distances would place a particular force upon the shoulder joint depending upon the distance lifted. In particular, he states:

“It takes three times the effort to lift a 4 kilogram load held 60 centimetres in front of the body than it does to lift the same load 20 centimetres in front of the body. Looking at this scenario in another way, lifting a 4 kilogram load held 60 centimetres in front of the body requires the same effort as lifting a 12 kilogram load held 20 centimetres in front of the body.”

12        In my view, these are matters of expertise beyond the normal understanding of the jury. Further, I am satisfied that given Mr Trembearth’s qualifications, training and experience, he does have sufficient expert knowledge to give the opinions set forth in paragraphs 10.1, 10.4 and 10.5 of his report, providing those opinions are constrained to the area of the shoulder joint.

13        Attachment 3 to his report is entitled “Rotator Cuff Injury Mechanisms”. This attachment describes the various areas of the rotator cuff, the muscles and other soft tissues used by the body in various lifting actions, and the mechanism of possible injuries, including a tear to the supraspinatus tendon. In my view, Mr Trembearth does have sufficient knowledge of the area to refer to this document, to describe the area of the rotator cuff and its mechanics. I will not, however, permit that document to be provided to the jury as to do so would give inappropriate emphasis to his evidence. Counsel for the defendant will have the opportunity to cross-examine him on this issue, inter alia, as to whether he would defer to the opinion, particularly of a surgeon expert in shoulder surgery.

14        The first sentence of paragraph 10.2 is no more than a conclusion of fact and is not permissible. The second sentence is a matter of evidence before the jury. The third sentence is permissible and within Mr Trembearth’s expertise.

15        Paragraph 10.3 is inadmissible. In the first place, it attempts to make a determination as to whether there was a breach of the Regulations. In the second place, it purports to make statements as to the knowledge of Mr El Moustafa, one of the directors of the defendant, on the issue of workplace safety.

16        Paragraph 10.6 is inadmissible as it is irrelevant. It refers to the ergonomic design of a cashier workstation and refers to figure 4 as an example. Under the heading “Shoulders and Arms” is said:

“●	keep the shoulders relaxed – not shrugged up or slumped-down
●	keep your elbows close to your body
●	keep work at about elbow height.”

17        This description of the body posture is not relevant to the present case. This case relates to the forceful and repetitive use of the plaintiff’s right arm in lifting objects at her counter and at other places. Paragraph 10.6 is inadmissible.

18        Likewise, paragraph 10.7 is inadmissible. It talks about levels of fatigue and whether the plaintiff ought to have sat on a stool. That issue is not pleaded nor part of the case.

19        Generally, paragraph 11 is a summary of the author’s opinion. It is in part a statement of opinion based upon the requirements of the Regulations and the Code, and in part a conclusion from the various matters referred to in paragraph 10. The only aspects of paragraph 11 which are, in my view, admissible, are:

(a)	The proposed alternative workstation referred to in attachment 4 to the report which talks of a “feeder area” containing a conveyor belt to assist in the delivery of the fruit and vegetable items to the plaintiff’s weigh station. It also refers to items being placed closer to the cashier to avoid the risk of a lift.
(b)	In the final bullet point on page 17 of the report is reference to the rotation of work duties on a regular basis so as to ease the physical aspect of the plaintiff’s duties.

20 While it might be said the two matters referred to above are matters of common knowledge, and upon which the jury does not require assistance in its deliberations by expert evidence, s.80 of the Evidence Act 2008 does permit such opinions. In my view, it is not appropriate to reject those opinions and exercise my discretion as contained in s.135 of the Act as I am not satisfied that the “… probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party or … cause or result in undue waste of time”. The use of the word “substantially” places a heavy onus on the parties seeking to exclude the evidence.[3]

[3]             See Odgers – ‘Uniform Evidence Law in Victoria’ – paragraph 1.3.14540

21 To the extent that the balance of the matters raised in paragraph 11 come within the ambit of s80 of the Act, there is the risk that such opinions invest in the minds of the jury the appearance of authority, and subvert their fact finding task.[4] On that basis I exercise my discretion pursuant to S135 of the Act to refuse to admit that evidence.

[4]             See Baulch v Lyndoch Warrnambool and Pritchard v Ardingly Pty Ltd (supra)

22        I will permit Mr Trembearth to give evidence in accordance with this Ruling.

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