Gambian v Spotless Services Australia Limited (Ruling)
[2020] VCC 1397
•9 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-01232
| AUDREY HAZEL GAMBIAN | Plaintiff |
| v | |
| SPOTLESS SERVICES AUSTRALIA LIMITED (ACN 005 309 320) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2020 (via Zoom hearing) | |
DATE OF RULING: | 9 September 2020 | |
CASE MAY BE CITED AS: | Gambian v Spotless Services Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1397 | |
RULING
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Subject: EVIDENCE
Catchwords: Expert witness – whether proposed evidence is expert evidence
Legislation Cited: Evidence Act 2008.
Cases Cited:Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Baulch v Warrnambool & Anor(Ruling No 3) [2008] VSC 420; Rees v Lumen Christi Primary School [2010] VSC 514; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555
Ruling: The evidence proposed to be led by the plaintiff from Caroline Dean is not admissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr G Clark | Shine Lawyers |
| For the Defendant | Ms R N Annesley QC with Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
1 In this matter, the plaintiff seeks an award of damages against the defendant in respect of injuries which she alleges were caused by bullying and harassment on the part of a co-worker and an unsafe system of work implemented by the defendant.
2 The plaintiff and the co-worker were, at all material times, employed by the defendant.
3 During the trial, the plaintiff sought to call evidence described as expert evidence from Ms Caroline Dean, a sociologist. The plaintiff has filed and served a report[1] and a supplementary report[2] from Ms Dean.
[1]Dated 26 February 2020 at page 426 of the Joint Court Book (“JCB”)
[2]Dated 28 July 2020 at JCB 470A
4 The defendant submitted that the evidence in accordance with those reports was inadmissible. On the following day, I upheld the defendant’s submission. I gave brief reasons at that time and indicated that I would provide more detailed reasons for my ruling in due course. These are those reasons.
5 The defendant objects to the proposed evidence from Ms Dean, on the basis that:
· the reports fail to disclose the facts and assumptions upon which her opinions are founded;
· the reports, in part, contain opinions that are in part irrelevant;
· most of her opinions are not wholly and substantially based on her training, study or experience;
· some of her opinions expressed, fail to disclose any path of reasoning;
· some of the opinions are properly matters for the Court’s judgment and not matters for evidence of a witness, expert or otherwise.
6 Ms Dean was engaged by the plaintiff’s solicitors and requested to provide a report concerning the following issues:
(a)the relevant human resource and management practices in existence at the time the plaintiff’s injury was sustained as they applied to the defendant;
(b)the reasonableness of the identified human resource and management practices, as at November 2012 to 14 May 2013, as they applied to the defendant;
(c)the response of the defendant to a petition by staff of Caterpillar of Australia Pty Ltd (“Caterpillar”) calling for the plaintiff’s replacement as chef manager;
(d)the letter from the defendant to the plaintiff dated 10 May 2013 and whether it was contrary to the defendant’s human resource and management practices;
(e)whether or not the plaintiff’s injury could have been avoided by the implementation of ‘improved’ and/or ‘other’ reasonable human resource and management practices by the defendant.
7 Ms Dean came to the following conclusions:
(a)the defendant failed to provide the mechanisms and practices to prevent bullying and harassment to create a safe workplace for all employees. Additionally, the defendant failed to effectively and promptly address the bullying and harassment of the plaintiff;
(b)the defendant ought to have foreseen a number of potential risks arising from:
(i)a lack of comprehensive induction for new employees;
(ii)a lack of job descriptions for cafeteria staff;
(iii)a lack of regular and ongoing performance reviews and feedback mechanisms;
(iv)a lack of regular one-on-one catchups or staff meetings;
(v)a lack of manager support and supervision, or management intervention to support the plaintiff to address the conflict that had occurred with Ms Bowen;
(vi)a lack of adequate training in appropriate workplace behaviour;
(vii)a lack of support services such as an employee assistance program for the plaintiff and Ms Bowen;
(b) the defendant failed to:
(i)provide or upskill the operations managers to adequately recognise, address and resolve conflict as it arose;
(ii)adequately address concerns raised by the plaintiff;
(iii)take all reasonable steps to prevent bullying and harassment in the workplace;
(iv)comply with Performance Management Guidelines;
(v)understand the impact and damage that ongoing and unresolved bullying and harassment has;
(vi)provide appropriate grievance processes (including natural justice principles) for the plaintiff in addressing the petition against her;
(c)the defendant operated from a physical safety and hazards perspective, which created a culture of tick-box compliance at the expense of psychosocial safety and a preventative mindset;
(d)the defendant was unable to provide a safe working environment for the plaintiff. There were no processes in place to help identify bullying and/or harassment or the ability to recognise risk areas that had the potential for bullying or harassment to occur;
(e)in a culture focused largely on physical safety and hazard reduction, where staff were not provided with adequate training or a comprehensive understanding of appropriate workplace behaviours, and where inappropriate behaviours were ineffectively addressed, there is a significant risk that bullying, and harassment would occur.
Principles
8 I have taken into account the provisions of s55, s76 and s79(1) of the Evidence Act 2008 (“the Act”). I shall not repeat those in full in these reasons.
9 Courts have considered the principles applicable to expert evidence on a number of occasions.[3] The principles were conveniently set out by Forrest J in Baulch v Lyndoch Warrnambool & Anor (Ruling No 3)[4] at paragraph [14]:
[3]Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]; Baulch v Lyndoch Warrnambool & Anor(Ruling No 3) [2008] VSC 420; Rees v Lumen Christi Primary School [2010] VSC 514; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555
[4]ibid
(a)A party wishing to call an expert witness must clearly identify the field of specialised knowledge in which it is said the witness can proffer an opinion;
(b)A party must then identify the expertise of the witness in that field. It must be demonstrated that by reason of specialised training, study or experience, the witness is truly an expert in that area;
(c)The opinion expressed by the witness must be wholly or substantially based on that specialised knowledge and not on the everyday knowledge of the common person;
(d) The opinion must be based on clearly identified facts;
(e)The onus rests on the party calling the witness to satisfy the criteria identified here.
10 To be added to those principles should be that it is necessary for the party calling the witness to demonstrate that the opinion evidence sought to be led is relevant to the issues in the proceeding.
11 In Makita, 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’; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of 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 (1999) 197 CLR 414, 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’.”[5]
[5]Makita (Aust) Pty Ltd v Sprowles (supra) at [85]
The qualifications of Ms Dean
12 The qualifications of Ms Dean are:
·Bachelor of Arts (Sociology and Journalism) – University of Tasmania
·Certificate IV in Training and Assessment from the Skills Institute Tasmania
·Narrative Mediation – the Narrative Centre, Tasmania
·Strengths Deployment Inventory Facilitator – Personal Strengths Australia.
13 The significance of any of those qualifications to the matters in issue in this proceeding were, in my opinion, not spelt out in either of the reports relied upon or in submissions made to me.
14 I accept that Ms Dean has been connected with a number of organisations which are involved with bullying one way or the other. For instance, under the heading “Previous work and other projects”, it is stated that these include:
·Challenge Bullying (Not for Profit) – founder and chairperson – information support and advocacy.
·International Association of Bullying and Harassment in Workplaces – financial member.
·She provided a submission in 2016 to the Tasmanian Law Reform Institute concerning workplace bullying.
·She has provided consultancy services on workplace bullying and unresolved conflict to unidentified chief executive officers, senior management and human resources persons. She has been involved, in a manner not particularised, in workplace bullying and conflict investigations.
·She has undertaken audits of an unidentified nature of organisations’ cultural characteristics to determine whether they hinder or support the prevention of workplace bullying.
·She is involved in face-to-face training of employees, managers, senior leadership and corporate and community boards on workplace bullying awareness, prevention and resolution.
·She is employed by The Skills Institute as a workplace bullying, interpersonal conflict, people management and interpersonal skills specialist.
15 There is no evidence as to whether her qualifications, courses, roles or activities involved any, and if so what, study or training with regard to any aspects of bullying or harassment. Further, I am unable to conclude, on the material before me, that that they assisted her to gain experience relating to bullying or harassment and, if so, the extent of such experience.
16 I consider that “human resources” and “management practices” are broad and imprecise terms. Human Resources is a term referring to recruitment and placement of staff and, no doubt, many other matters. Management practices is a term that relates to virtually all aspects of managing a business.
17 The term “bullying” is itself broad and takes in a wide range of behaviours. It is not defined in any statute. It might be the case that various companies have their own definitions of the term and their own practices for dealing with bullying. Such definitions might be inadequate or excessive. They are not definitive of legal duties owed by an employer.
18 Compliance by an employer with its own definitions and rules can hardly ensure that an employer is found to have acted reasonably in relation to a workplace dispute or practice.
19 Here, the principal issues were always –
· Was there bullying or harassment of the plaintiff?
· If so, was the defendant’s response (if any) to it, reasonable?
· What was the scope of the duty of care owed by the defendant to the plaintiff?
· Was there a breach by the defendant of that duty of care?
20 Any evidence (expert or otherwise) that an employer could have taken different steps to those taken by the employer were, in my view, irrelevant. The question is whether the actions or inaction on the part of the employer were reasonable having regard to the circumstances.
The proposed evidence
21 Ms Dean’s reports contain a wide range of opinions.
22 These are all based on her opinion that there was bullying and harassment of the plaintiff by Ms Bowen and by the defendant. She adopts the definition of bullying published by WorkSafe Australia – that is, “repeated and unreasonable behaviours, actions, or conduct directed towards a worker or group of workers that create a risk to health and safety”.
23 Whether or not the plaintiff was the subject of bullying or harassment in the course of her employment between November 2012 and May 2013 is a matter for the Court to decide – not for Ms Dean or any other witness.
24 At paragraph 58 of her first report, Ms Dean acknowledges that it is not always easy to recognise behaviours or actions as bullying. This, I consider, implies that certain behaviour or actions might be recognised by some persons as bullying but not by other persons.
25 Ms Dean opines in paragraph 60 that the health of a person experiencing bullying is impacted and that they may experience a range of physical and psychological symptoms. This would be, in my opinion, evidence that she is not qualified to give. Opinions concerning the likely cause of physical or psychological symptoms may be given by a person with appropriate medical expertise. The same would apply to consideration of the degree of exacerbation caused by bullying to any pre-existing mental health condition.
26 The opinions of Ms Dean expressed in paragraphs 61 involve a consideration of what was a reasonable response of an employer to workplace disputes involving co-workers. There could, of course, be many different responses – active or inactive. In all likelihood, depending on the facts, there will be numerous reasonable responses including the taking of no action at all. These must be considered prospectively and not retrospectively. Having read the opinions provided in paragraph 61, I consider that none of these involve any special qualifications, study or personal experience. The decisionmaker, in considering whether the employer’s response was reasonable, would not, in the circumstances of this matter, require expert advice or guidance.
27 In paragraph 62 and following, Ms Dean opined concerning some of the defendant’s written policies in place at the relevant time and the reasonableness and adequacy of those policies. She also considered whether the defendant had followed all of its own policies. Of course, it is tempting for a plaintiff in a workplace injury claim to submit that it is relevant that an employer did not adhere to its own policies. But mere non-compliance with in-house policies are of questionable relevance. What will be relevant is whether, by not complying with its own policies, it is demonstrated that the employer’s response was, when considered prospectively, unreasonable, taking all of the circumstances into account including the nature of the behaviour of the plaintiff and the co-worker, and any knowledge concerning vulnerability or susceptibility to injury of the employee. These matters are factual. No expert evidence was required to enable the decision maker to analyse or understand the evidence in order to reach a decision.
28 In paragraphs 97 and following, Ms Dean opines as to the reasonableness of the defendant’s response to its receipt of the petition. This is not, in my view, a matter which could involve expertise. Even if it could be established that a person could have expertise in such a matter through study, training or experience, I consider that a decision maker would not require the assistance of such a witness to understand and determine the issue.
29 In considering this matter, I have not taken into account the parts of Ms Dean’s reports dealing solely with Caterpillar’s duties and conduct.
30 In summary, I have concluded that Ms Dean’s proposed evidence is not admissible.
31 The onus rests on the plaintiff to satisfy the criteria for Ms Dean’s evidence to be admissible. I am not persuaded that she has discharged that onus.
32 I am not persuaded that Ms Dean’s proposed evidence:
(a) is based on any clearly identified field of specialised knowledge;
(b) is based wholly or substantively on specialised knowledge based on her training, study or experience.
(c) is based on such specialised knowledge as opposed to the everyday knowledge of the common person.
(d) is based on clearly identifiable facts.
33 I am satisfied that most of Ms Dean’s report involves her views on issues that are properly to be determined by the Court.
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