Farrugia v Jindi Woraback Children's Centre Inc
[2011] VSC 250
•18 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
No. 2524 of 2010
B E T W E E N
| MARY FARRUGIA | Plaintiff |
| v | |
| JINDI WORABACK CHILDREN’S CENTRE INC. | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16-18 May 2011 | |
DATE OF RULING: | 18 May 2011 | |
CASE MAY BE CITED AS: | Farrugia v Jindi Woraback Children’s Centre Inc. | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 250 | |
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PRACTICE AND PROCEDURE – Expert opinion evidence of an ergonomist – Risk of injury by being required to cut cardboard repetitively with scissors of poor quality – Whether substantially based on a body of specialised knowledge – Whether unfairly prejudicial to a party or misleading or confusing – Danger of the opinion usurping the function of the trier of fact – Evidence Act 2008 (Vic) ss 79, 135.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Richards SC with Mr M. Walsh | Clark Toop & Taylor |
| For the Defendant | Mr P. Elliott QC with Mr J. Gorton | Thomsons Lawyers |
HER HONOUR:
The plaintiff seeks to rely on a report prepared by Mr Mark Hennessy, concerning the plaintiff’s claim in respect of an injury she said she suffered in the course of her work at the Jindi Woraback Children’s Centre.
Mr Hennessy works as a consultant in public health and safety and has qualifications in epidemiology and biostatistics, and a Masters in Public Health. He is accredited by the Human Factors and Ergonomics Society as a Certified Professional Ergonomist.
There is no challenge to Mr Hennessy’s expertise as an ergonomist or otherwise.
In the report to which objection is taken, Mr Hennessy comments on what he describes as the “circumstances” of the plaintiff’s injury. In fact, the report concerns only, as Mr Elliott put it, “the cutting incident”, that is the injury allegedly sustained in 2003 when the plaintiff was required to cut cardboard into rectangles to enable the children to make photo frames.
Apart from a number of medical reports and an interview with the plaintiff, Mr Hennessy was shown scissors said to be ‘similar’ to those being used at the time the plaintiff sustained the injury and cardboard that he describes as a sample of what she was cutting with the scissors.
Mr Hennessy sets out at some length the facts that he has assumed about how the injury occurred. He also describes at some length the regulatory framework, including the Occupational Health and Safety Act 1985 (Vic) and the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic). He then gives his opinion that the plaintiff was placed at risk of injury by being required to cut cardboard repetitively over a period of one hour or more with scissors of poor quality, which required high forces to be exerted repetitively by her right thumb and fingers. According to Mr Hennessy, the task of cutting in the circumstances described required repeated and forceful actions of flexion/extension of the fingers combined with the same movements of the carpometacarpal joint of the thumb and he observes that these are the parts of the body affected by the tenosinovitus and osteoarthritis of which the plaintiff complains.
Mr Hennessy says he is not able to apply the qualitative risk assessment method to the tasks that the plaintiff performed. However, he states that based on his experience, using the scissors to cut cardboard would have been ‘heavy work’ involving repetitive and sustained high forces exerted by the thumb and fingers. If the scissors were blunt or not working well, even higher forces would have been required and the risk of injury would have been higher. This is essentially repeated at paragraph 7.9, in which he opines that cutting cardboard with scissors is a repetitious task involving relatively high forces due to the thickness of the cardboard and that if this task is performed with scissors that do not cut well, because they are blunt or because the blades are not tightly held against each other, then the risk of injury is increased.
In his analysis of what an employer could do to identify and reduce the risk of hazardous manual handling, Mr Hennessy compares the use of blunt or otherwise poor quality scissors with the use of high quality scissors that remain sharp for longer, cut more precisely and have blades that do not separate. He expresses the opinion, based he says on his experience as a practising ergonomist, that one of the measures which employers could take to reduce the risk of hand injuries like those suffered by the plaintiff would be to provide sharper scissors and ensure the scissors were robustly constructed so the blades were held firmly against each other throughout the cutting. There are a number of other measures Mr Hennessy says that an employer could take, including applying the relevant codes of practice. He concludes that cutting hard materials with scissors is hazardous according to the Victorian Code of Practice for Manual Handling (Occupational Overuse Syndrome) and that there are many different ways to make cutting cardboard safer, such as using better designed and/or sharper scissors. He also makes reference to a Stanley knife and a guillotine.
Mr Elliott for the defendant submitted that what Mr Hennessy says is trite: it is no more than if one accepts what the plaintiff says – that she was told to cut out cardboard for over an hour with a blunt set of scissors – then that could have caused her to have an injury and that as an alternative system, she should perhaps have used a Stanley knife or a guillotine. He submits that Mr Hennessy’s evidence is not substantially based on a body of specialised knowledge as there is no particular scientific or quantitative aspect in his report and that a jury may be overly affected by the fact that perfectly ordinary things are said by an expert. In saying there might be better designed scissors than the ones that were allegedly used, Mr Hennessy is not giving the jury any assistance at all, according to Mr Elliott. He is saying nothing that cannot simply be put in the evidence and related to the relevant law, and there is a risk that having the conclusions presented in an expert report will clothe them in a mystique that might unduly influence the jury.
Section 79 of the Evidence Act 2008 (Vic) is an exception to s 76, which makes evidence of an opinion not admissible to prove the existence of a fact about the existence of which the opinion was expressed. By reason of s 79, this rule does not apply to evidence of an opinion that is wholly or substantially based on specialised knowledge based on a person’s training, study or experience.
Although Mr Hennessy sets out at length the regulatory framework and the assumed facts derived from his interview with the plaintiff, I am satisfied that he does express expert opinions as to the consequences of cutting cardboard repetitively over a period of time with scissors of poor quality and as to how the risks associated with such conduct might be reduced or removed. Mr Hennessy is qualified to express opinions about good scissors and bad scissors and the consequences of using bad scissors, particularly on tough materials. Although it may be a matter of common sense that good scissors are less likely to place strain on the fingers and thumb than bad scissors, it is not correct to say there is nothing in Mr Hennessy’s report that smacks of anything of an expert nature that cannot simply be put in evidence.
In my view, Mr Hennessy is able to give evidence based on his specialist knowledge about:
(a) the risk of injury from cutting hard materials with scissors;
(b) the differences between scissors (that is, the characteristics of different types of scissors) so far as the risk of repetitive strain injury is concerned;
(c) why an employer would or should know about the risks of a repetitive strain injury;
(d) what an employer can do to reduce the risk of repetitive strain injury and what could have been done in this case.
Although there is a relatively lengthy description of both assumed facts and the relevant regulatory framework in the report, Mr Hennessy does give evidence about the matters I have mentioned, albeit scantily in some instances. That evidence is not, in my view, merely an expression of common knowledge or common sense. In any event, s 80 now provides that evidence is not inadmissible only because it is a matter of common knowledge.
I am satisfied that the opinions that the plaintiff was at risk of injury based on the assumed facts and as to measures which employers could and should take to reduce the risk of hand injuries were based on Mr Hennessy’s specialised knowledge.
In my view, therefore, the opinions expressed in Mr Hennessy’s report satisfy s 79 of the Evidence Act.
The question then arises as to whether the report should be excluded under s 135 of the Evidence Act, which gives the Court a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might relevantly –
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing.
Mr Elliott submits the report might be unfairly prejudicial to the defendant and be misleading and confusing in that there is a real risk that the facts and the law have been “dollied up”, as Mr Elliott put it, into something that might mislead the jury by causing it to give unnecessary weight to Mr Hennessy’s opinion, to the prejudice of the defendant.
I am not persuaded that it would unfairly prejudice the defendant to admit the report. The defendant may cross-examine Mr Hennessy and may make submissions as to the value of his report. If its factual assumptions are not made out on the evidence, then the report will have little or no weight.
Nor am I persuaded that the jury will be misled or confused by the report. It is a relatively simple document. Indeed, it is this very simplicity that has no doubt led Mr Elliott to submit that it consists only of matters of common sense or within the knowledge or understanding of the jury, which ought not to be given the gloss of expert evidence.
Mr Elliott referred the Court to Stephen Odgers’ Uniform Evidence Law (9th ed, 2010) in which the author suggests that relevant and overlapping considerations for the discretionary exclusion of expert evidence under s 135 would include the likely capacity of the tribunal of fact to properly determine the issue without the benefit of expert opinion.
In Rees v Lumen Christi Primary School,[1] Robson J considered the capacity to exclude expert evidence under s 135 of the Evidence Act where the jury would not be assisted by an expert giving evidence squarely upon the ultimate facts in issue and where there was a danger that the expert evidence would give the evidence “a spurious appearance of authority”. As His Honour observes, it is the trier of fact that must weigh and determine on the whole of the evidence the probabilities of the fact in issue. The expert cannot usurp this function. Indeed, the trier of fact must arrive at an independent assessment of the expert’s opinions and their value, and is to assess the weight to be given to the opinions of an expert in the same way as the weight to be given to the evidence of other witnesses. Justice Robson expressed the view, with which I agree, that the danger of the opinion usurping the function of the trier of fact as a basis for exclusion of evidence did not conflict with s 80 of the Evidence Act. Evidence can be excluded on that basis.
[1][2010] VSC 514.
For the reasons I have given, however, I do not accept that the report is a simple statement of assumed fact and law invested with a mystique by virtue of the author’s expertise or that the jury would slavishly adopt what is said in the report rather than reach its own conclusions on the questions it must decide and in relation to which it will be given clear directions in due course. Although the jury could determine without the assistance of the report that blunt scissors are more likely to cause some kind of strain injury than sharp, well made scissors, overall, in deciding what a reasonable employer would do in the circumstances of the defendant, the jury may be assisted by Mr Hennessy’s evidence. The report does not, in my view, usurp the function of the jury.
Accordingly I do not propose to exclude the report in the exercise of the discretion conferred on the Court by s 135 of the Evidence Act.
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