De Bever v M B Marlow Engineering Pty Ltd (Ruling No 1)
[2013] VCC 1915
•6 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-00366
| ADRIAN DE BEVER | Plaintiff |
| v | |
| M B MARLOW ENGINEERING PTY LTD | First Defendant |
| and | |
| MACKIE PTY LIMITED | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 13, 14, 18, 19, 20, 21, 22, 25, 26 and 27 November 2013, | |
DATE OF RULING: | 6 December 2013 | |
CASE MAY BE CITED AS: | De Bever v M B Marlow Engineering Pty Ltd & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1915 | |
RULING
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Subject: EXPERT EVIDENCE
Catchwords: Plaintiff seeking to rely on engineer’s report – factual basis of making opinion – matters of “common knowledge”
Legislation Cited: Evidence Act 2008, s79 and s80; Occupational Health and Safety Regulations 2007; Expert Witness Code of Conduct
Cases Cited:Baulch v Lyndoch Warrnambool & Anor (Ruling No 3) [2008] VSC 420; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd & Ors [2013] VSC 555; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Velevski v R [2002] HCA 4; Henley v Tu [2009] ACTSC 37
Ruling: Engineer’s report inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A N Murdoch SC with Ms A L Wood | Shine Lawyers |
| For the First Defendant | Mr P D Elliott QC with Mr N K Clarke | Wisewould Mahony |
| For the Second Defendant | Ms N Tsikaris | Wotton Kearney |
HIS HONOUR:
Preliminary
1 On 8 November 2013, prior to the empanelment of a jury, counsel for the first and second defendants applied jointly for a ruling that a purported expert report from a consultant engineer sought to be relied on by the plaintiff should be disallowed, as such report did not comply with the provisions of the Evidence Act 2008 (“the Act”).
2 The report was prepared by the consulting engineer, Mr Richard Lightfoot, (“Lightfoot”), who is employed by Casconult Pty Ltd. The report is dated 7 October 2013, is headed “De Bever v Marlow Engineering Pty Ltd & Mackie Engineering Pty Ltd” and is addressed to the solicitors acting on behalf of the plaintiff. It consists of 21 pages and is found at pages 160 to 180 of the Plaintiff’s Court Book. I shall refer to the impugned report as “the report”.
3 Various submissions were put by counsel for the defendants on one hand, and for counsel for the plaintiff on the other hand. On 13 November 2013, I ruled that the contents of the report were inadmissible and that written reasons would be given at a later date. I now give those reasons.
The proceeding
4 Adrian De Bever, who I shall refer to as “the plaintiff”, was at all relevant times employed by M B Marlow Engineering Pty Ltd, which I shall refer to as “the first defendant”, in the capacity as a boilermaker. The first defendant was engaged by Mackie Pty Ltd, which I shall refer to as “the second defendant” to perform steel fabrication work at premises situated at 94 Market Street, South Melbourne (“the premises”).
5 The plaintiff alleges that on or about 12 March 2008, during the course of his employment at the premises, he stood on a window sill which collapsed, causing him to fall into the void below and suffer injury.
6 The plaintiff alleges against the first defendant that his injuries were caused by its negligence and/or a breach of Part 3.3 of the Occupational Health and Safety Regulations 2007 in that it failed to identify the tasks required of the plaintiff which involved a “fall hazard” and failed to control the risk of the plaintiff falling by means set out in the Regulations.
7 The plaintiff further alleges that the second defendant was an occupier of the premises and breached a common law duty of care that it owed to the plaintiff to take such care as in all the circumstances as was reasonable to see that the plaintiff, whilst at the premises, was not injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
8 The plaintiff also alleges against the first and/or second defendants a general duty of care, the breach of which was a cause of the injuries suffered by the plaintiff.
9 The defendants deny any liability whatsoever and furthermore, if so liable, allege contributory negligence on the part of the plaintiff.
The report
10 The report is broken down into a series of sections, the first of which details the qualifications and experience of Lightfoot. He describes himself as a consulting engineer, holding the degree of Bachelor of Engineering (Mining), Diploma of Civil Engineering, Diploma of Electrical Engineering, Diploma of Mechanical Engineering, and Graduate Certificate of Industrial Hygiene Science.
11 He also holds certificates in Concrete Technology, Quarry Manager’s Superintendent’s Certificate, and is a Fellow of the Institute of Engineers (Australia) and the Institute of Quarrying Australia. The report includes an appendix setting out the curriculum vitae of Lightfoot.
12 The second section of the report details that Lightfoot obtained instructions from the plaintiff’s solicitors by letter dated 12 September 2013 which also enclosed the Statement of Claim, the Defences, Interrogatories delivered on behalf of the first and second defendants and the Answers thereto, statements from the plaintiff, Bronwyn Marlow (the director of the first defendant), Minh Vu (employed by the first defendant at the premises at the time of the injury) and Cameron Stuart (the site manager employed by the second defendant at the premises).
13 Lightfoot also notes that he obtained a circumstance investigation report and interviewed the plaintiff on 13 September 2013 at the plaintiff’s solicitors’ office. There is no issue that Lightfoot did not attend the premises at any time.
14 Lightfoot then sets out in the following sections of the report, his compliance with the Expert Witness Code of Conduct, details of the plaintiff, the first defendant and second defendant, and in particular, notes that he made “assumptions” that:
“1A mobile scaffold could have been erected and used on the first floor.
2A job safety analysis would have addressed safe access and egress when undertaking tasks.”
15 Under section 8, Lightfoot sets out the Statement of Claim, as it then was. Lightfoot then sets out what he calls the “sequence of the accident” in section 10. After speaking to the plaintiff, referring to earlier affidavit material and the various statements with which he was supplied, Lightfoot concludes:
“It was evident from these statements and that of your client who was coming down a ladder carrying the welder on his left shoulder held by his left hand, his right hand was holding the ladder. Your client then put his right foot on the ledge and was about to put his left foot on the window sill when the window sill collapsed.”
16 Under the next section headed “Safe Access and Egress”, Lightfoot states, in part:
“On questioning your client he states that only a ladder was available, however he concedes that with adequate site preparation a mobile scaffold could have been erected on the first floor level and provide a safe platform to work from and a means of supporting the welder He would then only have to climb up onto the scaffolding, undertake the welding with the welder being on the workplatform of the scaffold and when he needed to move to another work location climb down unlock the brakes on the scaffold, push the scaffold to the required location, relock the brakes and then climb back onto the workplatform of the scaffold. This meant that he was not having to carry the welder up and down the ladder or support it as he was standing upon the ladder and was then free to climb up and down the ladder to a suitable workplatform without the necessity of attempting to carry a weight on his left shoulder and attempt to steady himself on the ladder.”
17 Under this section, Lightfoot also refers to the Occupational Health and Safety Regulations 2007, and in particular to the Manual Handling Regulations (which are not relevant to this proceeding) and Part 3.3, which deals with the prevention of falls and identifying a “fall hazard”. Lightfoot sets out the Regulation pertaining to a “fall hazard” and comments:
“As the task was not undertaken from the floor level or a solid construction, the risk of a fall remained and the employer must reduce the risk, so far as is reasonably practicable. In this instance the use of a suitable scaffold.
In the case of the use of a ladder as a control measure −
(a)was it fit for the purpose,
(b)is it appropriate for the duration of the task,
(c)is it set up in a correct manner.”
18 Under the sections “Discussion” and “Assessment”, Lightfoot states, in part:
“From your client’s instruction and the documentation provided and referring to the Occupational Health and Safety Regulations 2007, your client was required to carry out a task working from a ladder supporting a welding machine and attempting to climb down and in doing so sought to steady himself by putting his foot on a window sill which subsequently collapsed. Your client had no control over the system of work and worked within the direction of his employer.
In relation to his employer there appeared to be no reason from your client’s instructions, that a mobile scaffold could not have been erected on the first floor level and moved from place to place thus supporting the welder at all times and removing the hazard that carrying the welder up and down the ladder created. There was no Job Safety Analysis undertaken and there was no proper control of the work site in relation to the task being performed by your client.
In relation to the second defendant, they had control of the site, they needed to ensure that any methods of work adopted by the first defendant were safe and that safe access and egress was available at all times on the site. They needed to check the building for strength of window sills etc and remove all the potential traps.
…
From your client’s instructions it was evident that he was not provided with a safe access and egress to a place of work when required to carry the welder up and down a ladder, support it on his left shoulder and when he did attempt to correct a problem that had arisen in the course of using the ladder, the support that he attempted to gain by the placement of his foot on the window sill failed and he sustained injury.
There appeared to be no reason why a Job Safety Analysis and the identification of hazards had not been undertaken and if such they [sic] had been undertaken then the use of the mobile scaffold for the task your client was performing would have ensured a safe place of work.”
Relevant legal principles
19 In determining the admissibility of the report, the following sections of the Act appear relevant:
“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.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
56Relevant 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.”
Later, the Act states:
“PART 3.3—OPINION
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.
77Exception—evidence relevant otherwise than as opinion evidence
The opinion rule does not apply where evidence of an opinion that is admitted because it is relevant for the purpose other than proof of the existence of fact about the existence of which the opinion was expressed.
78 Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
… .
79Exception – 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.
(2)To avoid doubt, and without limiting subsection (1)—
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i)the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
80Ultimate issue and common knowledge rules abolished
Evidence of an opinion is not inadmissible only because it is about—
(a)a fact in issue or an ultimate issue; or
(b)a matter of common knowledge.”
Later, the Act states:
“135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed 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.
136General discretion to limit the use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing.”
20 I refer to the decision of Baulch v Lyndoch Warrnambool & Anor (Ruling No 3)[1] wherein Forrest J reviewed various cases dealing with the admissibility of purported expert evidence, and thereafter distilled the following principles:
[1][2008] VSC 420
“(a)a party wishing to call an expert witness must clearly identify the field of specialised knowledge in respect of which it is said the witness can proffer an opinion;
(b) a party must then identify the expertise of the witness in that field. It must be demonstrated that by reason of specialised training, study or experience the witness is truly an expert in that area;
(c) the opinion expressed by the witness must be either wholly or substantially based on that specialist knowledge and not on the everyday knowledge of the common person;
(d) the opinion must be based on clearly identified facts;
(e) the onus rests on the party calling the witness to satisfy the criteria I have just identified.”[2]
[2](op cit) at paragraph [14]
21 I also refer to the more recent decision of Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd & Ors,[3] wherein Dixon J stated:
[3][2012] VSC 555
“My summary in Dura[4] of the approach to be taken in assessing admissibility was that admissible expert opinion must demonstrate not just that the opinion, and the experts reasoning of it, has a proper basis in the witness’ specialised knowledge, but also that the opinion, and reasoning, has a proper basis in assumed or observed facts. The matters that will usually be considered at both stages of the inquiry that considers whether the exception under s79(1) renders opinion evidence admissible may conveniently be referred to as four ‘rules’ (one of which is in three parts), which are:
(a)is the opinion relevant (or of sufficient probative value)[5] (the relevance rule);
(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);
(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 (the assumption identification rule);
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 (the proof of assumptions rule);
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)?”[6]
[4][2012] VSC 99 at paragraph [98]
[5]Bearing in mind the discretion under s135 of the Act
[6]See Hudspeth at (op cit) at paragraph [7]
22 Senior Counsel for the first defendant submitted that the contents of the report were not admissible for the following reasons:
(a) The report is “simply” a statement of facts, a recitation of regulations and a statement “without there being any revelation of a process of reasoning that there is a breach”;
(b) That any “opinion” expressed in the report has got to be “wholly or substantially based” on the relevant expertise and that the process of reasoning must be revealed. Reference was made to Makita (Aust) Pty Ltd v Sprowles,[7] wherein Heydon JA of the Court of Appeal of the Supreme Court of New South Wales stated:
[7](2001) 52 NSWLR 705
“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.”[8]
The report makes bald “statements” that the employer is in breach of the regulation pertaining to “fall hazard” without the application of specialised knowledge and without revealing the process of how such a conclusion came about.
[8](Op cit) at paragraph [85]
23 Counsel for the second defendant joined with Senior Counsel for the first defendant in relation to his submissions as to why the contents of the report were inadmissible. Furthermore, she submitted that, insofar as there is reference to the second defendant in the report, any comments made by Lightfoot are not opinions based wholly or substantially on any expertise and that he failed to outline facts upon which any such conclusions are reached. Furthermore, it was submitted on behalf of the second defendant that any “opinion” is not an expert opinion – it is a matter of common sense.
24 Senior Counsel for the plaintiff submitted that there did not appear to be any “real suggestion” that Lightfoot was not a person who is adequately qualified to give an opinion in relation to systems of work and workplace safety.
25 Furthermore, although Senior Counsel for the plaintiff accepted the proposition that Lightfoot could not be permitted to give evidence as to conclusions which may include questions of law – that is to say, whether there has been a breach of a regulation or whether or not there has been a breach of a duty by an occupier – but what he is entitled to do is apply his experience and training to express opinions as to what could and should have been done as a matter of workplace safety based on the facts that he has been given and, impliedly, asked to assume. In this sense, it was submitted what was told to Lightfoot by the plaintiff was an “assumed fact”.
26 Senior Counsel for the plaintiff also made reference to s80 of the Act which provides in part that evidence of an opinion is “not inadmissible only because it is” a matter of common knowledge. Such a reference was made when counsel was queried as to why it was an expert opinion, within the meaning of s79 of the Act, when Lightfoot comments that the regulations were applicable and that a mobile scaffold should have been utilised.
27 Senior Counsel for the plaintiff did accept, appropriately in my view, that Lightfoot “is probably going a bit too far” when he expresses the opinion that the second defendant needed to check the building, the strength of window sills and remove all the potential traps.
Conclusion
28 I accept that the types of matters raised in the report by Lightfoot are generally relevant to the proceeding. Furthermore, I accept that Lightfoot has an expertise in the area of engineering and the use of machinery on industrial sites.
29 However, after consideration of the competing submissions, I am not satisfied that the plaintiff has discharged his onus in establishing that the contents of the report are expert opinions within the meaning of s79 of the Act.
30 I have formed such a view for the following reasons:
(a) Any purported opinion from Lightfoot cannot be said to be based on any clearly identified fact and, seemingly, is largely related to the comment made by Lightfoot that the plaintiff “concedes that with adequate site preparation a mobile scaffold could have been erected on the first floor level and provide a safe platform to work from and a means of supporting the welder”. There is no attempt whatsoever to describe adequate site preparation or what difficulties there may have been to placing a mobile scaffold on the floor on which the plaintiff was working;
(b) The purported “opinions” expressed by Lightfoot amount to, in my view, no more than a statement of common sense and for which no particular expertise would be required. In this sense, it cannot be said that any such opinion is wholly or substantially based on some particular expertise held by Lightfoot. As noted, Senior Counsel for the plaintiff did refer to s80 of the Act, which relevantly states:
“Evidence of an opinion is not inadmissible only because it is about −
(a)…
(b)a matter of common knowledge.”
This particular provision was commented on by Gaudron J in Velevski v R,[9] wherein she stated:
“It was also contended on behalf of V [the appellant] that some of the matters about which the expert witnesses gave evidence, including the displacement of Snezana's nightdress, its missing buttons and a displaced hairclip, which Dr Oettle said were suggestive of a struggle, were not ‘specialised knowledge’ for the purposes of s 79 of the Evidence Act.
The concept of ‘specialised knowledge’ imports knowledge of matters which are outside the knowledge or experience of ordinary persons [17] and which ‘is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience’ [18] . So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act.”[10]
[9][2002] HCA 4
[10](Op cit) at paragraphs [81]−[82]
31 I also refer to the matter of Henley v Tu,[11] a decision of the Supreme Court of the ACT, wherein Besanko J stated:
“Furthermore, s80(b) of the Evidence Act 1995 (Cth), which abolishes the common law rule against the inadmissibility of opinions about matters of common knowledge, permits Mr Davis’ evidence to be based in part, albeit not a substantial part (see s79(1)), on matters of common knowledge.”[12]
[11][2009] ACTSC 37
[12](Op cit) at paragraph [77]
32 Based on such authorities, it is clear enough that an opinion of an expert can contain matters of common knowledge, but the opinion must be wholly or, perhaps more relevantly, substantially based on the particular expertise of the opinion maker. In the circumstances of the present matter, I do not consider such “opinions” advanced by Lightfoot can be viewed as opinions wholly or substantially based on his relevant expertise.
33 Accordingly, I rule that the contents of such report cannot be led from Lightfoot.
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