Director of Public Prosecutions v GC Cane Hire Pty Ltd (ACN 147 569 686) (Ruling)
[2019] VCC 1434
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02376
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GC CRANE HIRE PTY LTD (ACN 147 569 686) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 August 2019 | |
DATE OF RULING: | 6 September 2019 | |
CASE MAY BE CITED AS: | DPP v GC Cane Hire Pty Ltd (ACN 147 569 686) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1434 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Pre-trial ruling – Occupational health and safety issues following partial crane collapse – Crane installed by Defendant company – Alleged failure of defendant company to provide safe working environment for employees/non-employees – Alleged failure of Defendant company to provide systems of work without risk to health – Two Crown expert witnesses – Admissibility of Crown expert opinion evidence – Alleged breach of expert witnesses’ Code of Conduct
Legislation Cited: Evidence Act 2008; Jury Directions Act 2015; Occupational Health and Safety Act 2004; Supreme Court Rules – Expert Code of Conduct; County Court of Victoria Practice Note – Expert Evidence in Criminal Trials
Cases Cited:Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Willett v State of Victoria [2013] VSCA 76; Davie v LordProvost, Magistrates and Councillors of the City of Edinburgh 1953 S.C. 34; Gunnersen v Henwood [2011] VSC 440; Dasreef Pty Ltd v Hawchar [2011] HCA 21; R v Farquharson [2009] VSCA 307;
Ruling: Expert opinion evidence admissible
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P J Hannebery QC with Ms J Poole | Solicitor for the Office of Public Prosecutions |
| For the Defendant Company | Mr S T Russell with Mr S K Gardner | Mills Oakley Solicitors |
HER HONOUR:
Introduction
1 I have been asked to rule in relation to the admissibility of two prosecution witnesses, Russell Nisbet and Barry Gartner, both of whom are said to be experts in relation to the matters that they provide opinions on, pursuant to s79(1) of the Evidence Act 2008 (“the Act”).
2 Section 79 is an exception to the general exclusionary rule set out in s76 of the Act in respect of opinion evidence.
3 The defendant company has been charged with failing, so far as was reasonably practicable, to provide and maintain for its employees, a working environment that was safe and without risks to health, in that it failed to provide or maintain systems of work that were, so far as reasonably practicable, safe and without risks to health in the ways particularised on the Indictment (Particulars 1-11). They are also charged with failing to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking, with particulars of the alleged shortcomings detailed on the Indictment under Charge 2 (Particulars 1-11). The alleged commission date for each of the charges is 7th August 2015.
4 The defendant company has pleaded not guilty to each of the charges and challenges the admissibility of evidence which would otherwise be proffered by Mr Nisbet and Mr Gartner.
5 The prosecution of the defendant company was instigated following an incident on 7 August 2015, where a crane which had been installed by the defendant company partially collapsed inside the lift shaft of a multilevel apartment complex which was being built at Southbank ( this event might be referred to as ‘the incident’ or ‘the accident’ or ‘the collapse’ from time to time).
6 The collapse occurred during a process known as “a jump” or “jumping process”, which was a process that the Defendant was also responsible for undertaking. The amended prosecution opening (‘the opening’ or ‘the prosecution opening’), alleges that a 3-tonne counterweight roll of steel rope was dropped from the crane boom to the ground below, and the load hit some scaffolding on the way down and landed in close proximity to the amenities block onsite. After recounting the various observations of the crew from G C Cranes, who essentially state that, to their observation, the centre beam boxes were working correctly and had fully extended into the concrete lift pockets just prior to the collapse, the Opening goes on to indicate the opinions of Mr Nisbet and Mr Gartner.
7 It is convenient to refer to the evidence sought to be relied upon by the prosecution by referring to the prosecution opening insofar as each of these witnesses are concerned:
“Expert Reports
27. In his expert report dated December 2015, Russell Nisbet opines that the initial trigger for the incident relates to the lack of engagement of the central jacking beam retractable box within the pocket to the south side of the lift wall. Mr Nisbet’s opinion is that because the box had not projected sufficiently into the pocket, the bearing length of the southern end of the central jacking beam was inadequate under the full load of the crane. That initial failure triggered a series of subsequent failures and second order effects (such as the outer bottom edge of the concrete pocket shearing) and the crane fell.
28. In Mr Nisbet’s opinion:
(a)The use of the ‘pin visibility’ as the reference for determining the adequacy of the embedment of the boxes into the pocket was flawed and inappropriate;
(b)General Cranes’ Safe Work Method Statement (SWMS) dated 19 May 2015 titled ‘Internal Tower Crane Climb’ contains no specific procedures for ensuring that the central and outer beam retractable boxes are appropriately positioned with adequate bearing length within the central pockets;
(c)There were differences in the required extension differences between the east and west lift shafts and the key people involved in the crane climbing process should have been specifically aware of those differences.
29. On 22 December 2015 Barry Gartner provided an expert report in which he opined:
(a) This crane had already been successfully jumped five times within the western shaft ‘so it is probably an extraordinary circumstance and/or unsatisfactory jumping procedure that has resulted in it falling’;
(b) That the method used by Mr Scarlett to determine that the beams had fully extended into the pockets has ‘a high degree of uncertainty and it is likely that the south side leg had not been inserted far enough into the pocket…and…this has resulted in the collapse of the crane’.”
8 The prosecution opening goes on to state:
“32. There was a risk to the health and safety of GC Cranes employees in their working environment at the Marco Apartments site, namely that if during the climbing operations the jacking beam was inadequately supported then the crane could fall down into the lift shaft.
33.If this happened, persons working in, on or within the vicinity of the crane would be exposed to the risk of death or serious injury by falling or by being struck or crushed by the crane or by parts of the crane.
34. It is alleged that;
(a)there was an identifiable control measure that would have eliminated or controlled that risk;
(b)that it was reasonably practicable for GC Cranes to have adopted that control measure; and
(c) GC Cranes did not adopt the control measure.”
9 I pause here to observe that the risk to the health and safety of GC Cranes’ employees is identified in paragraph 32 as pertaining to the jacking beam being inadequately supported during climbing operations, which is reflective of the conclusions reached by Mr Nisbet and Mr Gartner as to what occurred on the day of the crane collapse.
10 At paragraph 35 of the prosecution opening, the prosecution spells out the alleged failure in relation to Charge 1, which is adopted at paragraph 37 for the purposes of Charge 2:
“35. In charge one it is alleged that GC Cranes failed to provide and maintain a system of work that was so far as reasonably practicable safe and without risk to health in relation to the task of jumping the crane. Specifically, GC Cranes failed to provide and maintain a system of work to mitigate the identified risk by ensuring that the central jacking beam could support the full weight of the crane when the boxes of the outer beams were retracted – for example, a system of work that contained all of the following elements:
(a) painting a brightly coloured line on each box to indicate when that box was fully extended;
(b) requiring employees to check that the pockets were clear of obstructions before extending the boxes into them;
(c) requiring employees to check that they could see the brightly coloured lines on the boxes of the central jacking beam before retracting the boxes on the outer beams; and
(d) providing adequate lighting to enable employees to carry out these checks.”
11 The particulars are also contained in the particulars of each charge.
12 The final two paragraphs of the opening deal with the employees, or persons other than employees, who were said to be exposed to the risk posed GC Cranes’ alleged failures.
13 Accordingly, the identifiable risk referred to in paragraph 32 of the opening, refers to the jacking beam being inadequately supported during climbing operations, and the prosecution then sets out in the opening the means for mitigating this risk; the prosecution goes on to set out a system of work which would ensure that the central jacking beam could support the full weight of the crane when the boxes of the outer beams were retracted. The opening does not specifically state that the defendant failed in relation to each of the elements in the example, but, through my associate, I have clarified that the prosecution does allege that the system of work employed by the Defendant did not involve any of these 4 elements.
14 In their defence response, dated 17 June 2019, the defendant states that the prosecution case against them is flawed and:
“… based on a misunderstanding as to how the accident occurred. The prosecution seek to establish that the accident occurred as a result of the outriggers of the crane not being inserted fully into the pockets prior to the jumping process”.
15 The defence go on to state that if the prosecution failed to establish beyond reasonable doubt that the accident occurred in the way that they allege, then GC Cranes was entitled to an acquittal.
16 Having discussed s61 of the Jury Directions Act 2015, defence now accepts that the prosecution only needs to prove each of the elements of the alleged offences beyond reasonable doubt. However, in circumstances where causation of the accident is a central issue in this matter, with a competing hypothesis proffered by defence, it seems to me that the cause of the crane collapse is inextricably tied to the question of whether Charges 1 or 2 can be proven. Having said this, I am well aware of the fact that the prosecution is not obliged to prove causation of the accident beyond reasonable doubt, and that the charges relate to the inadequacy or otherwise of safe systems of work. However, in circumstances where it is centrally asserted that the inadequate system of work derived from inadequate procedures in order to check that the boxes from the central beam were fully engaged, causation of the accident is a most important matter. This is so, especially because the evidence which would be given by eye witnesses in respect of engagement of the boxes of the central jacking beam on the day in question, essentially flies in the face of the expert evidence as to the engagement of the boxes. Further, defence will rely on expert evidence, which is not objected to, indicating, as I understand it, that the accident may well have been caused by the overstressing of the climbing beam, which had been under engineered to take the full weight of the crane.
17 In essence, defence points to the evidence of the eye witnesses in support of the proposition that the defendant took all necessary precautions to ensure that the boxes were fully extended into the lift pockets, and the system of work employed by GC Cranes to ensure this was not deficient in the ways alleged by the prosecution. Indeed, at paragraph 17 of the defence response, the defendant says that “[t]he suggestion by the prosecution that the retractable boxes were not fully inserted into the pockets is wrong”. Further, defence says that the suggested control measures would not have eliminated the risk and were not reasonably practicable measures. Defence stated that the provision of brightly coloured lines, and requiring employees to check these on the boxes of the central jacking beam before retracting the boxes on the outer beams, was not industry practice and was not reasonably practicable. They stated that there was no obligation on the accused to provide and maintain the elements referred to in paragraph 36 of the prosecution opening in the relevant circumstances.
18 Mr Nisbet and Mr Gartner gave evidence at a contested committal hearing on 20th and 21st November respectively. Mr Nisbet has given evidence before me which was pre-recorded as he was about to go overseas and would therefore be unavailable at the time that he might be required to give evidence in the trial. His evidence was given on the basis that his expertise was still challenged and subject to any ruling that I might give in respect of its admissibility. Therefore, a voir dire and his evidence proper were effectively rolled into one. Mr Gartner gave evidence on a voir dire in respect of his opinion and his expertise although Defence did not cross examine him in respect of the latter, to any great extent. Mr Russell said that Mr Gartner’s evidence was still challenged however, relying on his evidence at the committal hearing.
The Law
19 Section 76 of the Evidence Act 2008 provides that:
“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”
20 Section 79 operates as an exception to this provision, providing:
“(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.
… .”
21 Section 80 provides:
“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.”
22 Each of the parties has referred me to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita), where Heydon JA (as he then was) said:
“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 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 the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure that, the evidence is, strictly speaking, not admissible, and, so far as it is admissible of diminished weight and an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.’” [85]
23 While Makita predates the Victorian Evidence Act, the New South Wales provision referred to in it, is identical to the Victorian s79.
24 I was also referred to a passage from Willett v State of Victoria [2013] VSCA 76, where the principles set out in Makita case were adopted and reference was made to Davie v LordProvost, Magistrates and Councillors of the City of Edinburgh, where Lord President Cooper said:
“‘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, any more than a technical assessor can substitute his advice for the judgment of the Court … 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. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse 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. (referred to at paragraph [145] of Willett v State of Victoria).’”
25 Defence also referred to a passage from Gunnersen v Henwood [2011] VSC 440 at [64] per Dixon J, as follows:
“… What is ordinarily required of an expert is reasoning demonstrating sufficient connection between the opinion expressed and relevant specialised knowledge. If such reasoning is absent, the evidence of the expert will not be admissible to found the proposition expressed by the opinion.”
26 I was also referred to Dasreef Pty Ltd v Hawchar [2011] HCA 21 and R v Farquharson [2009] VSCA 307 at [94]-[100], in further support of this proposition.
27 The parties did not take issue with the applicability of the authorities referred to.
Mr Nisbet-Prosecution Arguments
28 In an Outline of Prosecution Argument, dated 26 August 2019, the prosecution set out the evidence which was sought to be adduced from Mr Nisbet, as being:
“… his independent opinion from a structural engineering perspective as to:
a.the adequacy of jumping procedures and associated measures implemented at the site at the time of/prior to the incident;
b.industry practice relating to internal climbing cranes and the jumping practice; and
c.the structural components of the jumping mechanism, including jacking beams, jacks, support beams of the tower crane and the internal pockets in the elevator shaft being used at the time of the jumping process.”
29 The prosecution then sets out at paragraph 7, the following:
“Relevant to this is his investigation of the incident and his assessment of its cause. In this regard, through the adoption of his report and his pre-recorded evidence, Mr Nisbet’s opinion is that:
a. that the beam was inserted 65mm into the southern box;
b. that the concrete on the southern box was sheared off;
c. that the shearing occurred under load;
d. the shear plane commences at a very sharp line;
e.that this shearing is only consistent with the edge of the beam slicing through the concrete at the distance to which the leg was inserted;
f.that the comparison of the disturbed / undisturbed concrete (which was unchallenged) is consistent with the 65mm insertion at the southern box but a greater insertion at the northern box;
g.that this was the triggering event for the collapse;
h.that the concrete stuck to the end of the southern beam is consistent with this event having occurred;
i.that the full insertion of the beam into the box is the fundamental part of the safe jumping process;
j.that the less contact between the beam surface and the concrete box surface the greater the forces applied to the concrete, and the greater level of risk that the concrete will fail to support the weight of the crane;
k.that the processes employed on the day of the incident, namely the use of the pin as a visual reference point, were inadequate to ensure the beam was fully inserted;
l.that the evidence of Scarlett that he saw the pin 80 to 100mm extended from the box was consistent with the 65mm insertion of the beam and as revealed by the damage to the concrete;
m.that the grey paint / black paint on the extendable leg would not have been visible to those undertaking the task;
n.that the process undertaken on the other crane, namely the painting of a bright pink line that becomes visible when the leg is fully extended, is a simple method that is more effective to ensure the leg is fully engaged than the pin / sound method employed, especially given the poor light conditions in the lift shaft;
o.that the evidence is inconsistent with the collapse commencing with the northern box and certain of the contentions about how such an event is said to have occurred are physically impossible.”
Mr Nisbet-Defence Argument
30 In the Outline of Submissions regarding the evidence of Mr Nisbet, dated 27 August 2019, defence challenges the admissibility of his evidence based on a number of considerations, as follows:
“a.Defence assert that Mr Nisbet’s report did not comply with Rule 44.01 of the Supreme Court Rules – Expert Code of Conduct (‘Code of Conduct’) nor the County Court of Victoria Practice Direction – Expert Evidence in Criminal Trials(‘the Practice Note’) in a number of respects which were said to be:
(i)that despite being placed on Notice at the committal hearing stage in November 2017 about the competing hypothesis to the conclusion that he had arrived at in respect of the crane fall, he had failed to perform any further enquiry which involved a consideration of this alternative hypothesis – that ‘he has inexplicably failed to do so’;
(ii)that he had not requested nor considered further statements made by eye witnesses, Mr Scarlett and Keating in relation to the procedures used during the insertion of the climbing beam into the central north and south pockets, despite knowing of the existence of such statements. Defence said that his lack of enquiry in this regard was not consistent with an overriding duty of an expert to the court to ascertain if there was relevant material contained in such statements which might impact on his opinion.
(iii)defence asserted that there was evidence of cross-pollination of the opinions between Mr Nisbet and Mr Gartner, saying that this was a concerning feature of the case. They then detailed the following contacts between the witnesses and included some references to the evidence in this regard.”
31 I pause here to observe that the Code of Conduct and the Practice Note reflect the same obligations in respect of expert witnesses, so I propose to refer to the Practice Note only in this Ruling.
32 The second objection to Mr Nisbet giving evidence about the matters that the prosecution sought to rely on was that he had exceeded “… his field of expertise by attempting to give evidence despite having:
a) no crane related operational qualifications …;
b) never operated a crane …;
c) never carried out the process of jumping a crane …;
d) no concrete related forensic analysis qualifications …;
e)never been in close proximity to the jumping of an internal climbing crane …;
f)is unaware of the qualifications that a crane jumper would need and didn’t ascertain or take that into account …;
g)no previous Worksafe reports involving examinations of cranes in this context – none involved in examining the actual crane itself …;
h)no qualifications that would enable an opinion to be expressed as to the procedures used; and
i)failed to carry out an assessment of the lifting capacity of the beam at all, and particularly when provided with the Constructioneering calculations from the informant shortly after completing his report.”
33 Defence submitted that Mr Nisbet’s evidence ought to be ruled as inadmissible as it exceeded his area of expertise and also due to what they termed to be “significant breaches of his obligations”, to which I have previously referred.
Evidence of Mr Nisbet’s specialised knowledge
34 At the hearing before me, Mr Nisbet gave evidence that he was a structural engineer who held a Diploma of Civil Engineering from Caulfield Institute of Technology, which is now Monash University. He said that he had worked in the engineering field since the late-1970s, and for the first twenty years or so he was with a multinational Australian engineering company which had offices overseas. He became a director and shareholder of that company in his early- to mid-thirties. He sold out of that company in 1997 and subsequently established his own business “Nisbet Consulting” in 1999. He said that, concurrent with running this business, in the last twenty years he had been involved in the development of a precinct in Docklands with “a delivery of a number of multilevel buildings, commercial primarily buildings.” (T16) He said that he was currently the director of Nisbet Consulting Pty Ltd and had been a director of the company since 1999.
35 Mr Nisbet said that, under the auspices of Nisbet Consulting, he primarily dealt with clients that he had dealt with over a number of years, and had undertaken a range of activities from engineering design of multistorey buildings to advice on demolition of structures, “and over a reasonable period of time I provided some reports to WorkSafe for incidents that had occurred which have caused people to be injured or killed, and I have provided advice as an independent adviser on the basis of my structural engineering background.” (T17) He said that he gave an independent view as to what might have happened, and what could have been done to prevent those sorts of accidents.
36 He was taken to his CV contained in his report, and he agreed that it was accurate, save that he did not include his development experience gained over the past twenty years “concurrent” with his role at Nisbet Consulting.
37 Mr Nisbet’s CV is set out from pages 202 to 204 of the Depositions.
38 At page 202, Mr Nisbet records that he has more than thirty years’ experience in the consulting engineering profession and has undertaken a range of roles from design engineering through to senior management. He states that his key experience includes ultra-high-rise structures and the design and management of major building projects from concept through to completion. He goes on to state that apart from designing new buildings he also specialises in engineering for the demolition of major structures, then goes on to list various demolition-based projects in which he has been involved over the past twenty-five years. He then refers to major projects that “form the backbone” of his structural engineering expertise, including a sixty-eight-level building, and a thirty-three level hotel, both in Singapore, and a twenty-level hotel in the Philippines, as well as a twenty-three-level and a sixteen-level building in Melbourne.
39 His CV goes on to list, chronologically, his various roles from the present time to 1975, and is detailed and extensive. The more relevant parts are as follows:
40 From 1975 to 1976, he was a junior engineer with the Shire of Cranbourne.
41 From 1976 to 1977, he was a design engineer with “DWH Aitken & Associates Pty Ltd”.
42 From 1977 to 1984, he was a design engineer with WL Meinhardt & Partners Pty Ltd:
“In this position, he was responsible for the detailed design, documentation and supervision of commercial and industrial projects that ranged from multistorey commercial and residential developments, to shopping centres, hospitals and industrial structures”.
43 He goes on to list the specific projects in which he was involved as a design engineer, which includes the Rialto Towers.
44 From 1984 to 1986, he was a technical director with the same company and was:
“… responsible for the design and documentation of major building projects. The most significant was five years of project work as project leader on the design, documentation and construction of the 280-metre high 68-level overseas union bank building in Singapore”.
45 He said that this phase included working with project architects and prime contractors on various aspects.
46 From 1986 to 1996, he became a director of “Meinhardt Vic Pty Ltd and Meinhardt Australia Pty Ltd”. He was project director for a number of major projects which he sets out, and which included ten projects in Victoria and seven projects overseas. The projects included various buildings at Monash University, Clayton Campus, and the Peninsula Campus, as well as the Royal Children’s Hospital and St John of God Hospital in Warrnambool. He was also project director in relation to a retail centre in Keilor, and a number of hotel projects in the Philippines, Singapore and Indonesia.
47 From 1996 to 1998, he was the managing director of the same company previously referred to “and Meinhardt International”.
48 He stated that his responsibilities and management activities included “Direct ‘hands-on’ management of the Victorian structural division and the civil, environmental and project management divisions”. He was also “Australian offices coordinator for projects in the Philippines” and was a representative of the Meinhardt Australia technical executive committee, apart from other roles.
49 From 1994 onwards, he was responsible for quality and information technology planning and implementation, as well as being project director for “numerous projects throughout Australia and South-East Asia”.
50 From 1998 to 1999, he was an industry leader with “Brown & Root”, responsible for “the strategic and direct management of the buildings, aviation and civil infrastructure sectors throughout Australia and South-East Asia region”.
51 From 1999 to “current”, he was the director for Nisbet Consulting, which he stated:
“… was formed to provide niche market specialist expertise to the structural engineering sector. This also includes advice relating to the demolition of major facilities and structures. Major project involvement includes shopping centres, multi-unit residential, commercial offices, project planning and management, independent reviewer and expert witness advice and strategic planning relating to mine-site decommissioning”. (Depositions 203)
52 He was taken to four questions which he had been asked to address in his report dated December 2015, as follows:
“a.the adequacy of jumping procedures and associated measures implemented at the site at the time of/prior to the incident.
b.industry practice relating to internal climbing cranes and the jumping process.
c.the structural components of the jumping mechanism including jacking beams, jacks, support beams of the tower crane and the internal pockets in the elevator shaft being used at the time of the jumping process.
d.whether appropriate testing, inspection and maintenance had been performed on the components (listed in Item c. above had been carried out).” (T19)
53 Mr Hannebery of Queens Counsel then asked Mr Nisbet what aspects of his qualifications or relevant training and experience gave him expertise to comment on the first question. He said that as a practising structural engineer, he had been to very many construction sites over time and believed he had ‘the experience that (he) picked up in site techniques and construction techniques, (which) gave him sufficient background information to be able to review the measures implemented at the site at the time of, and prior to, the incident from a structural-engineering perspective, relating to the base support components of the crane.’ (T19-20). When asked what his capacity was to comment on industry practice relating to internal climbing cranes and the jumping process, he said:
“Prior to the incident … I had limited exposure to internal climbing cranes because they’re not … a typically common method of climbing cranes, although they clearly exist … as a consequence of my involvement, I became fairly familiar over an intense period of time as to processes and sequences and … industry practice, I guess from viewing the … processes on the side as well as the statements of the various people that were involved in the process, and I formed a – I guess an opinion about – or enough of – enough knowledge to understand, to respond to that question in the way that I have .” (T20)
54 In relation to the third question he was asked to comment on in his report, Mr Nisbet answered:
“… well I guess my structural background gives me the ability to comment on the design and methodology of supporting the crane, and how – I had a lot of experience, quite clearly, in dealing with buildings that have cranes installed in them, and making sure that the buildings are suitable for the loads that the crane would apply under … lateral and vertical loading conditions and general usage … so experience in designing of lift shafts and understanding how all those things go together. So I guess over a long period of time, some of those things have – have formed … I guess a clear background set of information that I was able to apply in this instance.” (T21)
55 He then went on to give evidence about the steps he took to investigate the questions, which included visiting the site of the crane collapse the day after it had happened, and subsequently familiarising himself with the witness statements which he had set out on page 4 of his report and the exhibits set out on page 5.
56 He said that the material with which he had been provided was sufficient to be able to form opinions about the matters he had been asked to investigate, but added that he needed to attend the site subsequently when the crane was removed, in order to closely examine the inside of the lift shaft from about Level 3 upwards, to where the incident “initially started”. He did this in conjunction with Barry Gartner, who was responsible for taking all of the photographs which appear in the exhibits. He said that they both took measurements and viewed the site. He had also attended a site in Altona in order to view the crane components which had been removed and taken to storage.
57 He said that the information he was provided with, and which he had obtained, enabled him to form an opinion as to the cause of the crane collapse, which he went on to enunciate as follows:
“My opinion is that the initial trigger for the crane collapse was the failure of the supports for the southern extension of the centre crane beam in the pocket on the southern side of the lift shaft, which in turn triggered effectively the full transfer of load to the outrigger on the northern side of the crane, which subsequently failed.” (T23)
58 Mr Nisbet then went on to provide an opinion in relation to the adequacy of the jumping procedures and measures implemented on the day of the crane collapse, saying that these were not “well established for verifying the embedment of the outriggers into the pockets in this particular instance, and that I believe that the processes that based on the information that I had seen, were flawed at the time” (T23-24)
59 He then went on to enunciate his process of reasoning in relation to the cause of the crane collapse, as follows:
“… the process of reasoning evolved during my inspection of the internal part of the lift shaft, and I started on the north side of the lift shaft and viewed as much as I could, and then went to the southern side of the lift shaft and became aware of the sheering of the pocket, the centre pocket at that location, and then I used that information, I guess, to try to reveal more pieces of the jigsaw puzzle to put together what I believed was a logical sequence of events, and … I studied closely the 450 or 400 plus photographs that were taken at the incident site at the time, and of the pieces of the crane that had been removed, and I pieced together a range of other factors that I believe support my view of how the collapse was triggered.” (T24)
60 He agreed that it was important to understand precisely how the crane worked and said that he had developed this at the time. He went on to explain the crane-climbing process. I did not hear defence take issue with his understanding of that process. The explanation of this was also referred to in his report, and he had drawn diagrams in order to explain the process. He went on to give detailed evidence in relation to the importance of the bayonets, or legs, from the central beam being properly embedded into the concrete pockets during the lifting process, so as to ensure that the central beam could take the full load of the crane when the outer beams had been retracted. He spoke of the stresses on the concrete if this did not occur and the extent to which the beam needed to be embedded on either side of the central beam to be fully embedded. He then went on to give detailed evidence about his observations in relation to damage to the southern concrete pocket, and in relation to the appearance of the central beam following the collapse. In essence, he gave evidence that all of his observations and investigation, including measurements of aspects such as the extent of shearing damage to the southern pocket, supported the opinion that he had formed in respect of the cause of the collapse. Further, he gave evidence that the measures that the defendant had put in place in order to ensure proper embedment of the central beam were inadequate, and in relation to measures which could have been employed in order to improve the system of work. These opinions are reflected in the particulars of the example contained in the amended opening and in Charges 1 and 2 of the Indictment. He was critical of the measures taken by the defendant company in order to ensure that the central beam was fully embedded, such as the sighting of a pin at a particular point in the central beam and a change in the shade of the grey paint colour which was said to be used as an indicator of this. He also expressed concern about the state of light in the area, which he viewed as a further impediment to ensuring correct embedment of the central beam.
61 He was cross-examined at length, and his evidence which Defence say is problematic is referred to in their outline of argument to which I have previously referred. In oral submissions, Mr Russell said that as a structural engineer, Mr Nisbet was obliged to consider the alternative hypothesis or possibility as to how the crane had collapsed, and that he had failed to do so, which went to his competence to give opinion evidence in this matter. He said that there was ‘a very firm obligation on an expert to ascertain and effectively carry out all other aspects of an investigation’, and that whilst this was a subjective obligation, I was entitled to ‘test’ this in view of the matter before the Court (T267). Mr Russell submitted that whilst a structural engineer was an appropriate professional to give evidence in a case such as the one before me, that person ought have experience in the lifting process and the use of beams of the type used in the present case, saying that Mr Warhurst, an expert for Defence had significant experience in this respect. He submitted that Mr Nisbet was selective in respect of the aspects of the lifting procedure that the eye witnesses had spoken about, ignoring a number of things that they had said insofar as ensuring that the central beam had fully embedded. He said that it was a very relevant factor as to what one would expect to see and hear when the central beam was fully inserted and that without having the actual experience of having undertaken the jumping procedure, Mr Nisbet was not in a position to give evidence of an expert nature, as to whether the central beam had fully embedded.
62 Mr Russell submitted that his evidence was ‘far from satisfactory’ to the point where it ought be ruled inadmissible rather than going to the weight that a jury might give it. He also invited me to consider his credibility, referring to Mr Nisbet considering the further statements of Mr Keating and Mr Scarlett whilst he was in the witness box rather than taking more time to do so. He said that rather than take time to consider the statements he picked out parts of these which helped him, ignoring parts which did not. Mr Russell then referred to an aspect of what a jury is told in respect of expert witnesses in respect of whether the witness concedes matters ‘that he should concede’ or holds steadfastly to his opinions. Mr Russell submitted that Mr Nisbet was not someone who impressed as being independent, and that this and other alleged breaches of the Code entitled me ‘to assess that subjective view in light of the’ evidence he had given before me. (T270) When I asked Mr Russell as to whether there was any clear evidence that Mr Nisbet had based his opinion on acceptance of Mr Gartner’s opinion as he had submitted, Mr Russell replied ‘we don’t know’, saying that Mr Nisbet did not have any notes in respect of any conversations that he’d had with Mr Gartner. He said that this made it difficult to test his veracity and transparency> Mr Russell said that Mr Nisbet had completely failed to comply with the code in the ways that he had outlined.
63 He said ‘we say it’s an ongoing duty’ referring to the duty of an expert to make all enquiries and considering all of the issues which the expert believes to be appropriate’, that this duty ‘doesn’t stop once you put your report in..’. He said that all of the matters which had been raised with Mr Nisbet in respect of an alternative explanation for the crane collapsing which had been raised with him at the committal hearing ‘should’ve been followed up by him.’(T273) He said that once the matters were raised at the committal hearing he had a duty to follow up with Worksafe and it was no answer to say that he was not asked to do so by Worksafe. He said that it was ‘pretty bizarre’ that a structural engineer would not consider or conduct appropriate tests or perform calculations to see whether the central beam was under engineered, and whether it was capable of withstanding the loads that it would be exposed to. He said that his failure to do so amounted to ‘such a falling short of (his) ‘obligation under the code that it just can’t be excused’. (T275) Mr Russell submitted that Mr Nisbet had refused to even consider whether the other matters to which he referred were matters which ought impact on his opinion. He contrasted his approach to that of Mr Gartner’s, who was prepared to consider that the beam was under engineered.
64 Mr Russell further submitted that Mr Nisbet’s evidence in respect to the damage to the concrete pocket and how this was caused was without forensic foundation, and was really ‘a guess’, in circumstances where, they say, he had failed to carry out any tests to see whether the beam being inserted to the extent of 65mm would have resulted in the damage observed.(T283)
Admissibility of Mr Nisbet’s evidence
65 Having considered the written and oral submissions of each of the parties, I have come to the view that Mr Nisbet does have specialised knowledge based on his training, study and experience which qualifies him to give evidence on the matters that he has in this case, as his opinion or opinions are wholly or substantially based on that knowledge. While it is true that he has no crane related qualifications and had never operated or jumped a crane, and the like, I accept the prosecution’s argument that these matters have little bearing on his ability to express the opinions that he did from a structural engineering perspective. He has a wealth of experience, including hands on experience in relation to design and construction of multi-level buildings, as his evidence revealed. In relation to the jumping procedure, he was able to acquaint himself extensively as to what was involved, and I did not hear Defence to be taking issue with his understanding of this. I accept that he gave evidence within the realms of his professional expertise in relation to his observations and conclusions concerning the embedment of the crane on the occasion in question, and further, his evidence was logical and his reasoning was transparent in respect of the conclusions that he reached concerning the cause of the crane collapse, and the adequacy of procedures employed by employees of the defendant company in ascertaining whether the central beam had been satisfactorily embedded prior to the collapse. The asserted shortcomings with his evidence are matters for argument before the jury, and it will be a matter for the jury as to the weight that his evidence ought be given.
However, I accept that based on Mr Nisbet’s considerable experience in relation to the construction and design of multi-level buildings over a number of years from the perspective of a structural engineer and in view of his evidence concerning his experience to which I have previously referred, he was equipped with specialised knowledge to make the observations, take measurements and express opinions in the way that he has. Further, due to his experience, he was able to understand the hydraulic processes involved in the jumping process, the way that the central beam functioned and the likely sequence of events if full embedment of the central beam was not effected during the jumping process. As stated in his evidence, he had, as a practising structural engineer, attended many construction sites over time and had gleaned knowledge in relation to site techniques, construction techniques, and he was able to review measures which had been implemented at the site. He also had experience from a structural engineering perspective in relation to the base support components of the crane. He was able to give evidence based on his considerable experience and structural engineering background on the design and methodology of supporting the crane as he had had a good deal of experience with buildings which had cranes installed in them and in making sure that the buildings were suitable for the loads that the crane would apply under lateral and vertical loading conditions and general usage. He had experience in designing of lift shafts and understanding how all of the various components involved in the use of cranes in buildings went together.
66 Insofar as he had no concrete-related forensic analysis qualifications, he readily admitted to this but based his opinion in relation to the shearing of the concrete on his visual observations at the scene and what would be expected if the central beam had not been fully embedded, insofar as the concrete pocket was concerned. Further, his evidence in relation to the rubble inside the southern pocket did not require forensic skills in respect of concrete analysis but rather, he pointed to the rubble as supporting his opinion that the southern beam had not fully embedded. Whilst he may have made assumptions in this regard, and in relation to compressed concrete found on the southern end of the beam, these were clearly conveyed in his evidence, albeit that they are open to challenge through cross-examination, which has been done, and can be argued before the jury. However, in my view, the lack of forensic analysis qualifications in relation to concrete, do not preclude Mr Nisbet from giving evidence in relation to his observations and opinions concerning the damage to the lift pocket, the presence of rubble in the pocket, and the compressed concrete to which I have previously referred. For the same reasons, I do not regard the fact that he has not previously provided WorkSafe reports involving examinations of cranes in the present context as a matter which precludes Mr Nisbet from giving evidence in this matter.
67 His extensive experience to which I have previously referred entitles him to give an opinion as to the procedures used by the defendant in relation to the jumping procedure in my view. His reasoning demonstrated a sufficient connection between the opinions that he expressed and his relevant specialised knowledge which he has acquired over many years as a structural engineer.
68 Insofar as defence argued that he had exceeded his field of expertise by attempting to give evidence despite having failed to carry out an assessment of the lifting capacity of the beam at all, and especially when provided with the Constructioneering calculations shortly after completing his report, this is a matter which goes to the weight of his opinion rather than his ability to give one as an expert. As Ms Poole pointed out, this matter really goes to the complaint made by defence in relation to Mr Nisbet’s compliance with the relevant Code of Conduct and Practice Note.
69 Having perused the Practice Note in relation to expert evidence, the obligation to make all enquiries and consider all the issues which the expert believes are desirable and appropriate et cetera (4.1(h)) pertains to the content of all expert reports. Mr Russell argued that these obligations are continuing-that is not what the Code or Practice note say in relation to the contents of reports. Further, as Ms Poole points out, the Practice Note is drafted in terms of the expert’s subjective belief as to what is significant, desirable and appropriate when it comes to preparing these. In this case, Ms Nisbet did not have the calculations at the time that he drafted his report. However, when taken to them in cross-examination, he accepted their accuracy and indicated that his view had not changed. As Ms Poole submitted, Mr Nisbet’s opinion did not change, notwithstanding considering the Constructioneering calculation, albeit that he considered it belatedly. I am of the view that the cross-examination of Mr Nisbet on this matter is relevant to a jury’s assessment of his evidence. I do not regard it as relevant to the admissibility of his evidence pursuant to s79, and it is not of such a nature as to warrant exclusion of his evidence pursuant to s137 Evidence Act 2008. The matters referred to at paragraph 12 of defence submissions concerning alleged non-compliance with the Code of Conduct and Practice Note, and which were advanced in oral submissions, are arguments in relation to the quality of Mr Nisbet’s evidence rather than to its admissibility. None of the matters which have been raised individually or in combination, are of such a nature as to warrant exclusion of his evidence.
70 When one looks at the County Court Practice Note, clauses 2.1 to 2.4 encapsulate the duty to the Court that an expert has as follows:
“2.1An expert has an overriding duty to assist the Court impartially, by giving objective, unbiased opinion on matters within the expert’s specialised knowledge.
2.2This duty overrides any obligation to the commissioning party or to the person by whom the expert is paid.
2.3This duty includes an obligation to inform all parties and the Court promptly if, and whenever, the expert’s opinion changes from that contained in a report served as evidence or given in a statement.
2.4An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.”
71 As previously said, the obligation to make all enquiries and consider all issues which the expert believes are desirable and appropriate et cetera is in relation to the content of their reports. It seems to me that Defence have conflated two different clauses-one pertaining to the content of reports and the other pertaining to an expert’s duty to assist the Court when giving evidence.
72 Further, the obligation in relation to report content is a subjective one, as previously stated. Mr Nisbet gave evidence that he had only been provided with the defence reports within the past ten days to two weeks and did not have the time to consider these. However, having been provided with the competing hypothesis which was put to him, Mr Nisbet did not change his opinion in relation to the cause of the crane collapse. He also, although belatedly, considered the further statements of witnesses, Messrs Scarlett and Keating. Again, the matters that they raised did not result in him altering his opinion. I did not consider his evidence in relation to these matters as breaching his overriding duty to assist the Court, and I did not consider his evidence to be so lacking in probative value or involving a danger of unfair prejudice as to warrant exclusion under s137 of the Evidence Act 2008. However, Defence would not be prevented from criticising Mr Nisbet from not acquainting himself with the further statements and Defence Reports or in respect of failing to conduct further tests or perform calculations if they wish to do so, as long as this is evidence based rather than involving the jury in speculation.
73 The argument set out in paragraph 12(c) of defence’s outline is simply that-an argument, which is ultimately a matter for the jury, in my view. There is no evidence that Mr Nisbet gave an opinion which was anything other than independent of others. The evidence was that Mr Nisbet had one field of expertise and Mr Gartner had another. Although the witnesses had some contact with each other before lodging their reports, there is no evidence from either of them that they were influenced in their own opinions by the view of the other. The email referred to by defence where Mr Nisbet said “I hope and presume there will not be any conflict in our views”, reflects that he does not know what Mr Gartner’s view is, in my view. However, the email is something that can be referred to before the jury in addition to other matters where defence attack the independence of Mr Nisbet’s opinion. As I have said, such matters go to Mr Nisbet’s credibility and the weight which might be placed on his evidence. However, it does not lead me to a view that he has breached the Code of Conduct or Practice Note to such an extent, if he has at all, that his evidence ought be excluded.
74 Finally, paragraph 12(d) refers to an email from Mr Gartner to the informant describing a “cross sharing of ideas”, saying that Mr Nisbet seemingly agreed with the proposition or description.
75 When one goes to the relevant passage in the transcript, Mr Nisbet was shown a document and asked not to read it out loud. He then was asked:
Q:“Do you accept that you met with Mr Gartner in the period of time before December 2015 a short time prior and that you had a cross sharing of your areas of expertise?‑‑‑
A: I believe that's what I tried to explain before, yes.
Q:“So do you accept, having read that document, you accept that that indication of – from Mr Gartner is a true reflection of what occurred when you met up in the week before December 21, 2015?‑‑‑
A:Ah, I accept it as it's written, our areas of expertise are completely different.”
76 The document was tendered for identification only as Mr Nisbet was not a party to the communication. It is not clear to me that he did accept that he and Mr Gartner had engaged in a “cross sharing of ideas”, or that if they had, that these had influenced the opinions that either held. Again, the matter may be pertinent to the weight to be given to Mr Nisbet’s evidence and may be used as an attack upon his credibility as an independent unbiased expert but I do not regard the non-compliance with the relevant Code or Practice Note, if there was one, as warranting exclusion of Mr Nisbet’s evidence.
77 On any view, I find that the evidence of Mr Nisbet is admissible pursuant to s79 and ought not be excluded pursuant to s137.
78 Appropriate directions will be given to the jury in relation to how they must and might treat his evidence as will be the case for all of the expert evidence in this trial. Of course, the arguments of each of the parties in respect of the strength of such evidence will be referred to in the course of these directions.
Evidence of Mr Gartner
79 The evidence sought to be adduced by the prosecution in relation to the evidence of Mr Barry Gartner, metallurgical engineer, is as follows:
(a)the condition of the steel in the beams, components and chain, including wear in tear;
(b) the grade/strength of steel;
(c) the suitability of the steel to undertake the climbing/jumping process;
(d)industry standards, publications and other guidance material for steel used in the support structure of similar cranes;
(e)his general opinion of the cause of the collapse (extract from prosecution submissions dated 27 August 2019).
80 Defence objects to Mr Gartner’s evidence, principally in relation to his ability to give evidence on the cause of the collapse (T226-227); however, Mr Russell further indicated that defence objected to his evidence overall due to his alleged non-compliance with the relevant Codes of Conduct or the County Court Practice Note.
81 The prosecution submitted that Mr Gartner was able to give evidence on the cause of the crane collapse pursuant to s79 of the Evidence Act 2008 for the following reasons:
“a.he is a metallurgical engineer of some 40 years’ experience [229: 31-230, 3];
b.his experience includes investigating a broad range of failures, including structural, mechanical, corrosion and equipment operational failures [230: 9-21];
c.he considers his professional qualifications and experience enabled him to comment on the matters he was requested by WorkSafe to consider as part of his investigation [233: 19-26], save that he did not perform an opinion regarding the suitability of the steel to undertake the climbing or jumping process, that being a matter for a mechanical or structural engineer [T36: 16-19];
d.he considered the material provided to him (as described in Appendix B at page 56 of his report) to be sufficient to enable him to provide his opinions;
e.he formed an opinion regarding the cause of the collapse [T36: 27], consistent with that set out in his report;
f.his opinion included that the southern side of the beam fell away from the concrete pocket, based in part on his observations and understanding of what he perceived to be a sheer fracture of the concrete [238: 18-239: 18]. That understanding was based on his experience [T39: 19-21];
g.his evidence took account of new information provided to him since the date of his report and included his opinion on that information [240: 10];
h.the integral part of his opinion as to the cause of the crane collapse was the tearing upward of the metal on the northern side of the beam but he said that whether that this is the ‘initiation or not is debatable in [his] opinion’ [242: 17-24];
i.he did not read Mr Nisbet’s draft statement [244: 17-18], nor seek to get any information from Mr Nisbet regarding his opinion [243: 10-12];
j.the reason he met with Mr Nisbet was to understand the hydraulics, which was not the area of expertise, and he ‘needed to ask an engineer who had some knowledge of hydraulics whether the sequencing [Gartner] was thinking about could occur or not.’ [244: 6-13];
k.his opinion in relation to the cause of the collapse is based ‘predominantly on the examination of the steel components and the failure features therein’, rather than examination of the concrete in the lift pocket [247: 4-8].”
82 Defence objected to Mr Gartner’s evidence (as set out in their outline of argument dated 27th August 2019) on the basis that:
83 ‘5… his report does not comply with Rule 44.01 of the Supreme Court Rules – Expert Code of Conduct, nor the County Court of Victoria Practice Direction – Expert Evidence in Criminal Trials’, in that:
‘a)’He was a metallurgical engineer and had “an ongoing duty to the Court to make all enquiries and consider all the issues which the expert regards as relevant, and if taking into account the opinion of another expert should attribute that in the report.” Defence submitted that the committal transcript indicated that Mr Gartner had
(i) “…relied on Mr Nisbet in some respects”, referring to D116/124
(i)he relied upon Mr Nisbet in relation to the causation aspects, referring to “Item 4 Second Statement dated 8 August 2019”;
(ii)there was no mention of that in his report or anything about “the Southbank meeting” (D115-116);’
‘b)In addition, the witness stated on the voir dire at trial that he had relied upon Mr Nisbet to assist with his understanding of the hydraulics and to “help put together the pieces of the jigsaw puzzle”;
‘c) The potential for cross-pollination of the opinions between Mr Gartner and Mr Nisbet is a concerning feature of this case. The evidence of Mr Gartner at committal hearing on the voir dire reveals the following contacts between the parties prior to the lodgement of each author’s report on the same date (22 December 2015)’. Defence then point to
‘(i)’the site meeting at Southbank and at Altona, referring to Depositions 120/121;
‘(ii) Southbank Crown Casino lunch meeting – Depositions 115/116;
(iii)Mr Nisbet described this event as a cross-sharing of ideas (see trial, exhibit 2 for identification, shown to Mr Nisbet)’.
84 ‘6’. Mr Gartner exceeded his field of expertise by giving evidence with respect to:
‘(a)His opinion… as to cause of the damage to the southern pocket when he did not have any qualification regarding assessment of damage to concrete structures; D118
‘(b)’That he held a qualification ‘in metallurgy’ and was ‘not a structural engineer’ and, therefore, ‘should not be permitted to give evidence as to the cause of the accident. D129’
(c)That he held ‘no forensic or investigatory qualifications’ which ‘might entitle him to explore and provide an opinion as to the cause of the accident.D118’
Mr Gartner’s evidence-Voir Dire
85 On a voir dire, Mr Gartner gave evidence that he had a degree in metallurgical engineering from the University of Melbourne and for two years before this he did applied science, before changing courses to engineering at Melbourne University. He also completed a Corrosions Certificate at RMIT, post-graduate.
86 He is a member of the Institute of Materials in London as a chartered engineer and a member of the Australian Institute of Engineers as a chartered professional engineer. He is a corrosion technologist member of the Corrosion Association of Australasia. He has experience of over forty years as a metallurgical engineer and had been an investigating engineer, principally in metals, as well as doing materials analyses or testing. He had undertaken “slips and falls” investigations for the last thirty years.
87 He was the sole director of his own company “AMAT Materials Engineering”, having held that role for twenty-three years since the company commenced.
88 He said that his role involved mainly investigating failures of “various situations”, explaining that these involved:
“…a huge, wide range of activities from structural failures, to corrosion failures, to mechanical failures, to principally metal failures but sometimes equipment operational failures where things don't perform as they should have”. (T229-230)
89 He explained that the “slips and falls” investigations involved:
“… where, ah, something might of broken or something - someone might have fallen down for poor design, or whatever, steps … .” (T230)
90 He adopted the truth of his report, dated 22 December 2015, but said that he had gleaned other knowledge in more recent times “at the committal hearing that says to me I didn't know everything at the time.” (T231)
91 He then explained that he did not have “knowledge about the extending of the blocks part of the crane's lifting legs, and normally the over potential extensive stressing relating to that.” (T231). He went on to say that he had just read two statements, being the second statements of Mr Keating and Mr Scarlett.
92 He adopted his Curriculum Vitae as being true and correct, which was set out at pages 337-338 of the Depositions and is annexed to this Ruling. This provides more detail to his evidence in court as to his experience. One of the matters contained in his Curriculum Vitae is the following: “I have attended court as an expert witness on numerous occasions and prepared many hundreds of reports for litigation and arbitration proceedings”. (Depositions 338)
93 At page 337 of his Curriculum Vitae he says:
“Since my first employment in 1973, I have been an investigating metallurgical engineer involved with materials testing, failure investigations of a very wide variety of failures, product development and testing (including testing to Australian and International Standards), heat treatment investigations, corrosion problems, product liability assessment, product engineering design and accident investigations, including slips and falls.”
94 He goes on to list eighteen “more high profile investigations” that he had carried out which reflect a broad array of investigative work from a metallurgical viewpoint.
95 When Mr Gartner gave evidence on a voir dire, defence did not cross-examine him extensively in relation to his expertise. Mr Gartner agreed that he did not have academic qualifications in relation to concrete, although he had been to concrete seminars. He agreed that in relation to the appearance of the concrete pocket, he made a visual assessment of it. He accepted that he had some discussions with Mr Nisbet, but he disagreed that this was for the purpose of trying to get some information from him as to his opinion regarding the cause of the accident. He agreed that he wished to put together “pieces of the jigsaw” and needed his help to do this. He said that the reason that he met with Mr Nisbet at Crown Casino was to understand the hydraulics, which was not his area of expertise. He said he needed to ask an engineer who had some knowledge of the area and whether the sequencing he was thinking about could occur or not. He said that his opinion was based predominantly on the examination of the steel components and failure features therein (T247) (Emphasis mine).
96 Earlier in his evidence on the voir dire, Mr Gartner said:
“… there could be all sorts of features that relate to why it failed this time and not last time and one of those is still the chance of it not being pushed into the pockets adequately or positioned adequately, that it was off-centre or that somebody caused some undue movement of it is either crane driver, the crane operator up the top, all those things become variables that instead of being well and truly in the safety factor, may not be - could be marginal and something could tip it over the edge.” (T242)
97 Mr Gartner went on to say that the tearing upward of the northern beam was an integral part of why the crane fell down “but whether it's the initiation or not is debateable in my opinion”. (T42)
98 When cross-examined, Mr Gartner said that the accident occurred from an overload and it was a question of whether it was a “high safety margin overload or a low safety margin overload”.
99 He agreed that he had read the report of Mr Warhurst, who indicated that the beam was only able to cope with a crane of about 25 tonne, and that on Mr Warhurst’s calculations the crane with the load was 55 tonne. He said that, based on these calculations, “it shouldn't have even been able to erect it in the first place”. When asked if this would be a most probable explanation as to why the northern side of the lifting beam collapsed, he answered:
" It's a - one version, but - but because it's - because of the loss of the safety factor, because of the modification, then it becomes, you know, very probable, yes.” (T245)
100 Mr Gartner was then re-examined by Ms Poole as follows:
“… just in relation to the evidence you've just given in relation to an explanation as to why the northern side collapsed, as I understand your evidence you said it is one version and it goes (sic? ‘does?) become very probable. In relation to your report, your opinion in your report was that the cause of the collapse was the failure of embedment. Just in relation to again just to your expertise in expressing that opinion, can I understand what the basis of that opinion - what that opinion was based on?” (T245)
101 Mr Gartner answered that it was:
“… the fact that the leg had broken away from that pocket, from the level 6 pocket and fallen down and the features of the failure, the metal - metallurgical damage, ah, throughout the system, throughout the … base of the crane, and the tearing away of the steel on the northern side, and falling down and impacting lower down. So, there was a whole … myriad of features that I put into context … based on … the fracture either for initiating of the … south side or the north side, and one of those features was, you know, the ability for the north side hydraulic leg, hydraulic lifting device tearing away from the north side upper surface of the box where it was welded and to me that would have occurred from the south side collapsing … and the hydraulics pulling up suddenly on the north side … causing it to sever because the north side, the welded on plate where the fracture – where it – the failure initiated there, was not deformed, it was flat, … If the north side hydraulic flange connection failed after the north side collapsed and tore away, then in my opinion it would be unlikely that that flange would still be straight at the inner end, and that was a key feature that – and that was the reason I approached Mr Nisbet because I needed to see whether – to test whether hydraulically that was possible, if that was hydraulically possible … that explains to me why the flange of the north side connection to the hydraulic cylinder is not bent in that it was pulled away upon the south side collapsing, as opposed to it being severed by tension after the north side collapsed because to me it should still be bent which its not, if it came away after the north side had peeled up.” (T245-246)
102 When asked by Ms Poole whether he was able to say how the weight of a 55-tonne crane versus a 25-tonne crane impacted, if at all, on his opinion as to the cause of the collapse, he said:
“When I assumed that the crane was designed and built and not modified to a major degree other than a small six centimetre additions to each leg of the lifting section, when I assumed that it had done … l five jumps at least in that lift well, without problem and without any knowledge of any significant modifications that would over-stress the crane, I put into context that the north side of the crane collapsed and tore up under the weight of the whole crane after the southern side was no longer supported. So, that's the context of which I used strength and knowledge of the failure of the northern side. If you take away the safety margins, then the northern side could collapse under the weight of movement or jumping the crane, you know, movement in general, as I mentioned movement of the crane up top, even wind movements, and in the act of jumping or jacking the crane up to the next level, it could be something slightly or significantly – not just slightly, significantly different to the previous five jumps.” (T247-248)
103 He went on to say that his understanding of the modifications which had been made was that there were two 16-metre thick blocks of steel welded onto the end and there was some other modification to the box that contained the lifting legs to make it longer.
Admissibility of Mr Gartner’s evidence
104 In my view, Mr Gartner has specialised knowledge based on his training, study and experience, which entitles him to express the opinions that he does in this matter – his opinion evidence is substantially based on his specialised knowledge as a metallurgical engineer who has considerable experience and knowledge in relation to fractures and failures of metals, as well as corrosion and abrasion of these. He did not profess to be an expert in relation to damage to concrete structures – see Depositions 118 – his opinion substantially concerned the metallurgical aspects of the relevant structures and sequencing of the failure involved in the crane collapse from a metallurgical point of view.
105 Clearly, Mr Gartner gave evidence within his expertise, having specialised knowledge of metallurgical engineering, which he had gained over a forty-year period. He clearly indicated the information he had obtained from Mr Nisbet, was principally in relation to hydraulics which, he acknowledged, was not an area with which he was familiar. His opinion as to the crane collapse was predominantly based on his specialised knowledge, and he had considered the report of a defence expert before giving his evidence on the voir dire. Not only did he consider this evidence, he took it on board and appeared to acknowledge that the centre beam was under-engineered in order to lift a crane which was so heavy. He gave evidence in such a way that was readily transparent, logical and came within his area of specialised knowledge.
106 Defence principally relied on evidence given by Mr Gartner at the committal hearing. At the committal hearing he said that his “principal thing” was to find out whether the metal was of a sufficient grade and then went on to give his opinion in relation to the strength of the central beam to perform previous jumps:
“So therefore the strength was adequate for doing those jumps in the same lift in the same space in the same amount of overhand gap between the pocket and the end of the block and done that on at least three occasions. So therefore my reasoning is that some extraordinary doubled the load had to occur on that side to cause that metal failure.” (D129-130)
107 He went on to say that there was no evidence of fatigue or corrosion in the beam which would suggest that it had been overloaded in the previous jumps. Accordingly, his evidence in relation to the cause of the accident principally derives from his specialised knowledge and reasoning processes within this. As he is an expert with relevant specialised knowledge and has approached causation of the accident from the viewpoint of his specialised knowledge, in my view he holds the necessary qualifications which entitle him to provide the opinion that he has in his report and which he has elaborated on subsequently at the voir dire.
108 Insofar as his alleged non-compliance with the Code of Conduct or the Practice Note are concerned, I do not regard any of the matters raised as being of such a nature individually or in combination as to warrant exclusion of Mr Gartner’s evidence pursuant to s137 of the Evidence Act 2008. The allegation that Mr Gartner“… relied upon Mr Nisbet in some respects” , relates to his meeting with Mr Nisbet for lunch at Crown Casino where he obtained information about the hydraulic cylinders saying ‘I assumed he had hydraulic engineering knowledge, I needed to get an understanding of how the hydraulic cylinders would react after one side let go, and that was important in me trying to establish why …the north side of the centre failed in tension, because each time I see a fracture feature I’ve got to explain how that fracture feature occurred and I was having difficulty with that explanation.” (D116)
109 When asked if, bearing in mind the Code of Practice, whether there was information that he needed to be provided with in order to assist him in regard to expressing his opinion, and whether he would have requested this, he answered: “That’s why I asked to talk to Russell Nisbet, because I couldn’t put a large jigsaw puzzle piece together.” (D 124) – I do not regard Mr Gartner obtaining information about the hydraulics as “taking into account the opinion of another expert” for the purposes of preparing a report. While it might be said that he did not include in his original report that he obtained information from Mr Nisbet and, therefore, did not comply with Clause 4.1(c) of the Practice Note, he has since indicated that he did acquire such information, and I do not regard his actions as depriving his opinion evidence of its probative value or resulting in unfair prejudice. Further, I do no regard such a breach as being so grave on its own, or in combination with anything else that Mr Gartner has done, as to warrant exclusion of his evidence.
110 In relation to the assertion by defence that he relied upon Mr Nisbet in relation to the causation aspects, while Mr Gartner says in his second statement dated 8 August 2019, that he and Mr Nisbet discussed two possibilities as to “how it could be possible to produce a tension load that could initiate the separation of the northern hydraulic cylinder from the top of the outer box of the northern beam”, he certainly does not rely upon Mr Nisbet’s opinion insofar as this is concerned. He makes it clear that he examines the two competing possibilities from a metallurgical point of view, as is evident from page 3 of his statement.
111 As to the failure to mention anything about the “Southbank meeting”, this is a matter that can be put to him in cross-examination, however he makes it clear in his evidence at the committal hearing that there was absolutely no effort to ensure they came up with the same opinion, or that their reports did not conflict. He indicated the purpose of the meeting, and I see nothing in his evidence which would warrant exclusion of this.
112 Insofar as paragraph 5(b) of the defence outline is concerned, again, there is nothing in what Mr Gartner said which warrants exclusion of his evidence in circumstances where the information that he obtained from Mr Nisbet was in relation to the hydraulics, and did not impact on Mr Gartner’s ability to give opinion evidence from the perspective of a metallurgical engineer, which is what he has done.
113 As to paragraph 5(c), the asserted potential for cross-pollination of the opinions between Mr Gartner and Mr Nisbet is a matter which may go to the probative value of their evidence, if at all, in circumstances where each of the expert witnesses has disavowed being influenced by the other. I do not regard the asserted ‘potential for cross-pollination’ to be sufficient so as to exclude Mr Gartner’s evidence – at best, this is a credibility point which ought be assessed by the jury, but for the purposes of my Ruling, I do not regard this aspect to be of such a nature as to warrant exclusion of Mr Gartner’s evidence.
114 Further, I have viewed Exhibit 2, tendered for identification only, being an email between Mr Gartner and Ms Cihangir from WorkSafe, dated 21 December 2015. There is no reference to “a cross-sharing of ideas”, as set out in paragraph 5(c)(iii) but, rather, Mr Gartner says that he and Mr Nisbet “got together last week to consider some points that we thought required cross-sharing over our areas of expertise”. This document was never put to Mr Gartner on the voir dire and I previously referred to it in the context of my ruling regarding Mr Nisbet’s evidence. It is, inferentially, a reference to Mr Gartner obtaining information in relation to the hydraulics at the Crown Casino meeting and takes the matter nowhere, in my view. However, again, this is a matter for cross-examination, rather than a reason to exclude Mr Gartner’s evidence pursuant to s137.
115 Accordingly, Mr Gartner’s evidence is admissible pursuant to s79 and I refuse to exclude it pursuant to s137.
116 Further, I do not regard it as desirable for the jury to be making assessments as to whether there has been compliance with the relevant Code or Practice Note – I consider that the issues raised by defence in relation to Mr Nisbet’s and Mr Gartner’s independence et cetera can be sufficiently addressed by inclusion of evidence pertaining to their meetings, the information that they considered and did not consider in reaching their opinions, and the stage at which they took other evidence or information into account.
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