Collopy v Parks Victoria (Ruling No 2)

[2024] VCC 1930

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-05851

PETER ANTHONY COLLOPY	Plaintiff
v
PARKS VICTORIA (ABN 95 337 637 697)	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Geelong
DATE OF HEARING:	30 July 2024
DATE OF RULING:	10 December 2024
CASE MAY BE CITED AS:	Collopy v Parks Victoria (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1930

RULING
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Subject:EVIDENCE

Catchwords:              Workplace injury – negligence – breach of statutory duty – admissibility of expert evidence

Legislation Cited:      Evidence Act 2008 (Vic)

Cases Cited:Collopy v Parks Victoria (Ruling No 1) [2024] VCC 1929; Parrish v Specialized Australia Pty Ltd [2020] VSC 15; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Davie v  Magistrates of Edinburgh (1953) SC 34; Rees v Lumen Christi Primary School [2010] VSC 514

Ruling:  The evidence of Mr Bill Contoyannis is inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S C Bailey with Ms S Fernando	Arnold Thomas & Becker
For the Defendant	Mr R Kumar with Ms J E Clark	Wisewould Mahoney

HER HONOUR:

Introduction

1The background to this proceeding is set out in my first ruling.[1]

[1]Collopy v Parks Victoria (Ruling No 1) [2024] VCC 1929

2Mr Collopy sought to rely upon three reports of Mr Bill Contoyannis, forensic engineer, dated 11 February 2022 (“first report”), a supplementary report dated 23 March 2022 (“second report”) and a second supplementary report dated 10 July 2024 (“third report”).

3Parks Victoria submitted that the reports of Mr Contoyannis were inadmissible in whole or part.

4At the conclusion of the parties’ submissions, I ruled that Mr Collopy had not established that any of the opinion evidence of Mr Contoyannis was admissible, and that I would provide my reasons for that ruling in due course.  These are those reasons.

The relevant issues

5Mr Collopy alleges that he suffered a number of injuries in the course of his employment as a ranger due to the negligence and/or breach of statutory duty of Parks Victoria.

6Mr Collopy alleged that he was required to perform “physically demanding and ergonomically unsafe manual handling tasks” including pruning, brush cutting, digging and shovelling; and lifting and carrying heavy materials, tools and equipment while walking over long distances on rough and unstable surfaces.”

7The relevant particulars of negligence or breach of duty included:

“(a) Failing to instruct or properly instruct the Plaintiff.

(b) Failing to provide the Plaintiff with any or any adequate supervision.

(c) Failing to provide the Plaintiff with any or any adequate equipment.

(d) Failing to prescribe and/or enforce a safe system of work.

…

(g) Failing to provide a safe workplace.

(h) Failing to undertake a risk assessment in regard to the hazardous  nature of the work required.

…

(n) Failing to provide the Plaintiff with any or any adequate assistance for the performance of the work duties, whether manual or mechanical.

…

(p) Causing or allowing the Plaintiff to lift heavy materials, equipment and tools.

…

(u) Failing to rotate the Plaintiff’s work duties, either adequately or at all.

(v) Causing or allowing the Plaintiff to repetitively perform the same duties during the course of his working day without sufficient breaks.

(w) Requiring the Plaintiff to walk on steep inclines or steep declines on uneven and rough ground whilst carrying and lifting heavy tools, equipment and materials.

(x) Requiring the Plaintiff to walk over long distances whilst carrying and  lifting heavy tools, equipment and materials.

…

(z) Failing to comply with the Occupational Health and Safety Regulations 2007 (Vic), and in particular Regulations 3.1.1, 3.1.2 and 3.1.3.

(aa) Failing to heed complaints as to the work duties and injuries sustained by him in the course of his employment … . ”

8Mr Collopy’s claim is broadly framed and related to his work between December 2006 and December 2013.

Applicable principles

9The principles applicable to the admissibility of opinion evidence are well established and were not in dispute.

10The relevant sections of the Evidence Act 2008 (Vic) are as follows:

“Section 55    Relevant Evidence

(1)The 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.

… .

Section 56 Relevant evidence to be admissible

(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)Evidence that is not relevant in the proceeding is not admissible.

…

Section 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.

…

Section 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.

…

Section 135 General 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 …

… .”

11In Parrish v Specialized Australia Pty Ltd,[2] J Dixon J summarised the four ‘rules’ identified by Heydon J in Dasreef Pty Limited v Hawchar[3] relevant to determining the admissibility of expert opinion evidence:

[2][2020] VSC 15 at paragraph [25]

[3](2011) 243 CLR 588

“…

(a) is the opinion relevant (or of sufficient probative value);

(b) has the witness properly based ‘specialised knowledge’ (the expertise rule);

(c) is the opinion to be propounded ‘wholly or substantially based’ on specialised knowledge (the expertise basis rule); and

(d) is the opinion to be propounded ‘wholly or substantially based’ on facts assumed or observed that have been, or will be proved, or more specifically (the factual basis rules):

(i)      are the ‘facts’ and ‘assumptions’ on which the expert’s opinion is founded disclosed;

(ii)      is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and

(iii)     is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge (the statement of reasoning rule)?”

12In Makita (Australia) Pty Ltd v Sprowles,[4] Heydon JA explained the necessity for an expert to reveal the full reasoning by which the opinion expressed was reached.  The purpose is so that the tribunal of fact may assess that reasoning to determine whether to accept the opinion.  Heydon JA cited with approval Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh[5] as follows:

“… Expert witnesses, however skilled or eminent, can give no more than evidence.  They cannot usurp the functions of the jury or Judge sitting as a jury … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence … In particular the bare ipsi dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.  … .”

(emphasis added)

[4](2001) 52 NSWLR 705 (“Makita”) at paragraph [59]

[5](1953) SC 34 at 39-40

13In Rees v Lumen Christi Primary School,[6] Robson J considered the admissibility of the opinion evidence of an expert in educational administration.  A particular issue was whether the expert had sufficiently revealed the path of reasoning for those opinions.  Robson J highlighted Heydon JA’s explanation of that issue in Makita.

[6][2010] VSC 514 (“Rees”)

14In Rees, Robson J found the expert had not applied his specialised knowledge to primary assumed facts and had not disclosed his reasoning to allow the jury to apply it themselves and make their own independent judgment.  He found that “[r]ather, his opinions are merely a means of repeating the facts he assumes and is merely a means of advocating the factual basis of the case the plaintiff seeks to put.”[7]

[7]Rees at paragraph [59]

15The onus to establish admissibility rests on the party seeking to adduce the evidence.

Mr Contoyannis’ opinion

16Mr Contoyannis is a consulting mechanical engineer.  In 1986, he was awarded a Bachelor of Engineering (Mechanical) from the University of Melbourne.  In 2003, he was awarded a Master of Engineering Science (Biomedical Engineering) from Monash University. 

17At paragraph 1.1 of his first report, Mr Contoyannis stated that he has:

“… practised in the field of biomedical and rehabilitation engineering for about thirty continuous years as an incident investigator specialising in risk identification and injury prevention.”

18At paragraph 1.17 of his first report, Mr Contoyannis stated that the specific experience which he had which qualified him to provide an opinion in this case was:

“… obtained in investigating and providing expert opinion in a number of workplace injuries that were attributed to unsafe systems of work, unsafe use of machinery and equipment, or unsafe manual handling.  I have assessed workplace situations where equipment and/or manual handling was involved, and I have provided advice on measures to improve the safety of those workplaces, both as a safety consultant and in the context of litigated personal injuries claims and about the practicability of various possible risk control measures.  This has included work involved in the maintenance and care of gardens, reserves and other open space areas.”

19Junior Counsel for Parks Victoria submitted:

(a)   Mr Contoyannis has no, or limited, expertise to give the opinions which he gives;

(b)   Mr Contoyannis’ reports contain no, or insufficient, paths of reasoning to support his opinions;

(c)   Mr Contoyannis’ opinion that Parks Victoria has not complied with their job safety analyses (JSAs) was not an expert opinion, but rather a restatement of what Mr Contoyannis was told by Mr Collopy;

(d)   Mr Contoyannis relied upon assumed facts which are not relevant, and will therefore not be proven;

(e)   Mr Contoyannis’ third report was late served and was not served in accordance with any leave of the Court.

20Leading Counsel for Mr Collopy conceded that the following parts of Mr Contoyannis’ reports were inadmissible:

First report dated 11 February 2022

Paragraph 4.20 from “… and had asked …” to the end of the paragraph.

Paragraph 4.23

Paragraphs 6.1 to 6.38 inclusive

Paragraph 7.4 from “Alternatively there was no suitable equipment which he was able to use”.

Paragraphs 7.18 to 7.26 inclusive.[8]

[8]Transcript (“T”) 74-76

21Leading Counsel for Mr Collopy identified the following opinions, which Mr Collopy intended to rely upon:[9]

[9]T78-81

First report dated 11 February 2022

“7.10     Mr Collopy was provided with equipment to perform his tasks however the adequacy or otherwise of such equipment is related to the duration over which he performed the tasks as well as the requirement to carry them to and from the areas where such tasks were performed as well as loading them onto and off his vehicle.

7.11For example while the brush cutter he was using (see Figure 2) is adequate for such purposes it should not be used continually over an entire shift.

…

7.15Rotation of duties and outsourcing are part of an entire workforce assessment process and I do not have enough information (nor do I believe it is in my scope of providing an expert opinion) to identify all of the skills and staff in other parts of the enterprise which may be applicable and suitable for rotating through these areas (I also note that there had been an assessment of the staff resourcing required which would likely have looked at all the skills required across the board (see paragraph 4.23).

7.16Once a workforce wide assessment has been made, suitable rotation of tasks with other areas or with other staff will form part of the rotation roster.  Other staff can also be trained to perform specific duties if this assessment finds that there are not enough workers competent to do all duties required.

7.17However, in this case, where there is (sic) evidently tasks which constitute hazardous manual handling, the rotation of duties either with existing staff or through outsourcing will in my opinion be warranted and should have formed part of the risk control measures required.  (Again, I note: ‘Correct number of people tasked to the job’ is listed as a risk control in the JSAs.)

…

7.31 When an employee reports any difficulty, or reports pain or injury, it is critical that there is direct observation or inspection of the task or work area to establish if the tasks are contributing to the difficulties any employee is having or the injury is present.  This assessment is beyond the general hazard identification and risk assessment for a given task.  The assessment is specific to how the tasks m[a]y effect (sic) the employee who is reporting the difficulty or the injury.

7.32Further this assessment needs to be carried out as soon as one is aware of the employee reporting difficulty, pain or a specific injury as is the case here.  The assessment will likely also include a relevant health professional.”

Third report dated 10 July 2024

“7.8       It is true that a supervisor may not be able to assess the biomechanical forces to which a worker may be exposed, however, when an employee reports any difficulty, or reports pain, it is critical that there is ‘consultation with employees; and direct observation or inspection of the task or work area’ to establish if the tasks are contributing to the difficulties any employee is having.  This assessment needs to be carried out as soon as one is aware of the employee reporting pain or, as should occur, when the employer solicits information regarding any difficulty or pain that the employees are experiencing.  In this case, comparison with already identified risks should have been identified.

…

7.10As stated above, I continue to hold the opinions expressed in my earlier reports …, and I add the following comments regarding measures and the system of work which could and should have been implemented.

7.11Having established the JSAs for common tasks performed by Mr Collopy (and other park rangers) a system of work could have followed a procedure as below:

·      The JSAs identify the hazards, risks and controls (as they currently do);

·      The JSAs also identify the number of workers required to undertake the tasks and the roles the workers need to contribute to;

·      The JSAs also identify the tools, equipment, materials required for the task;

·      The JSAs also consider how long a task should take;

·      The supervisor allocates a task to the appropriate amount of workers and time to the tasks which require completion (a task would be identified and allocated to a team, individual, etc);

·      The workers, having been trained in the JSAs will ensure they have the following from the depot prior to tackling a task:

-The task itself defined (location, descriptions etc)

- Materials required (and accounting for the ‘scope’ of the tasks e.g.  one bench Vs four benches, repair Vs replacement)

- equipment required (specific to those tasks) including trolleys, powered barrows, vehicles etc

- The workers required (if a single person task, team of two or four etc).

·      The booklet of JSAs will also go with the workers to the task.

7.12Once the appropriate factors above are in place, the workers will review the JSA and ensure the hazards identified are controlled and accounted for prior to commencing the task.  Any variation of the JSAs should result in a:

·      Re-assessment of the task

·      Postponement of that task

·      Modification of the JSA to include the identified variations and account for them according to a hazard identification

·      Any combination of the above.”

Analysis

22Leading Counsel for Mr Collopy submitted that the opinions essentially relate to systems of work.  Mr Contoyannis’ qualifications and experience enabled him to express such opinions.[10]

[10]T81-T83

23In the course of argument, Leading Counsel for Mr Collopy was asked to identify where in Mr Contoyannis’ reports he set out the path of reasoning for each of the opinions Mr Collopy wished to rely upon.  A global submission was made that:[11]

“… what the expert has done is, he has taken the assumed facts and he has applied his own expertise … I’ve already taken Your Honour to, to express an opinion with respect to the system of work.  That is, in effect, the pathway he has taken.  … .”

[11]T86

24Leading Counsel for Mr Collopy candidly acknowledged that Mr Contoyannis simply set out assumed facts and his conclusion, and could not identify the exposition of a path of reasoning.[12]

[12]T87-T89

25In my view, those concessions were appropriately made by Leading Counsel for Mr Collopy.

26I find that Mr Contoyannis likely is suitably qualified to express an expert opinion on the adequacy or otherwise of a system of work in an industrial accident case; however, his reports fail to identify how he has used his specialised knowledge upon the facts assumed to arrive at his opinions.  As I have noted, Leading Counsel for Mr Collopy ultimately conceded this deficiency.

27In the circumstances, it is unnecessary to consider the other issues relevant to admissibility which were raised by Parks Victoria.

Conclusion

28Each of the reports of Mr Contoyannis is inadmissible.

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