Haslem v Ventia Utility Services Pty Limited (Ruling)

[2018] VCC 830

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-03515

BARRY HASLEM	Plaintiff
v
VENTIA UTILITY SERVICES PTY LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2018
DATE OF RULING:	12 June 2018
CASE MAY BE CITED AS:	Haslem v Ventia Utility Services Pty Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VCC 830

RULING
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Subject:  EVIDENCE

Catchwords:             Admissibility of expert evidence from an engineer/ergonomist in jury trial – whether sufficient expertise in the area of gas pipe installation – failure of the expert to provide details of calculations as to force and flexibility – failure to provide sufficient detail of suitable alternative systems of work – how application of expertise relates to assumed facts – admissibility of evidence related to Manual Handling Code of Practice  – admissibility of evidence relating to material contained on WorkSafe website

Legislation Cited:     Evidence Act 2008

Cases Cited:Baulch v Warrnambool (Ruling No 3) [2008] VSC 420; Dasreef Pty Ltd v Hawchar [2011] HCA 21; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555; Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; Rees v Lumen Christi Primary School [2010] VSC 514.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Forbes QC with Ms J Frederico	Maurice Blackburn Pty Ltd
For the Defendant	Mr T J Casey QC with Mr M K Clarke	Thomson Geer Lawyers

HIS HONOUR:

Preliminary

1       On the first day of this industrial jury trial, and before the empanelment of the jury, Mr Casey, counsel for the defendant, objected to the admissibility of various aspects of the report of an engineer, Mr Bill Contoyannis.  This Ruling concerns the admissibility of that report, and the further steps which need to be taken in relation to it.

2       In this proceeding, the plaintiff, Mr Haslem, claims for damages as a result of injury to his lower spine suffered in the course of his employment on 14 December 2010.  On that day, he was one of a team laying polyethylene pipes (“poly pipes”) to provide a new gas supply to residents in suburban premises in Essendon. He alleges the injury was caused by the negligence of the defendant, alternatively by its breach of the Occupational Health & Safety Manual Handling Regulations 1999 (“the Regulations”).

3       At the time of the incident, he was standing in a trench feeding the poly pipe into an existing and larger cast iron pipe already in the ground (“the iron pipe”).  From time to time, the poly pipe became stuck as it hit obstructions further along the pipeline.  There were five co-workers standing at ground level, feeding the poly pipe by pushing it into the iron pipe.  The plaintiff’s job was to hold the poly pipe down so that it fed into the iron pipe horizontally and to ensure it did not become damaged on the sharp edges of the iron pipe.

4       At one point, the poly pipe hit an obstruction.  It buckled or flexed where the plaintiff was holding it, and forcefully pressed him against the side of the trench.  He alleges he suffered an injury to his lower back.

The legislation and the authorities

5 Section 76 of the Evidence Act 2008 provides that opinion evidence is inadmissible. Section 79(1) provides an exception, that is, 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.”

6       The authorities as to the admissibility of expert evidence are well known.[1]  From those authorities are distilled the following propositions:

[1]Baulch v Lindoch Warrnambool & Anor (Ruling No 3) 2008 VSC 420; Dasreef Pty Ltd v Hawchar [2011] HCA 21; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555; Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; Rees v Lumen Christi Primary School [2010] VSC 514

(i)the expert evidence must be relevant to the facts or issues in the proceeding;

(ii)the expert must have specialised knowledge, based upon training, study or experience outside that which might be reasonably expected of a tribunal of fact;

(iii)the opinion of the expert must be wholly or substantially based upon that specialised knowledge;

(iv)the opinion must set out with clarity the assumed or observed facts as the basis upon which the expert gives his or her opinion;

(v)the assumed or observed facts must be in substance the same as the evidence given, or to be given, in the trial;

(vi)the opinion must set out with clarity how it is the expert applies his or her specialised knowledge to the assumed or observed facts so as to render his or her opinion.

7       To these established propositions, I would add:

(i)an expert opinion is inadmissible if it purports to answer the ultimate question before the tribunal of fact, that is, as to whether there has been a breach of the duty of care;

(ii)save as to circumstances where it is clear the tribunal of fact could not determine whether or not there has been a breach of statutory rules or regulations without the specialised knowledge of the expert, it is not for an expert to determine whether or not there has been such a breach;

(iii)an opinion of an expert is not admissible if it is no more than an opinion “dressed up” to make it appear to be based upon specialised knowledge, where, in fact, it is within the knowledge or competence of the tribunal of fact to arrive at that conclusion without the need for that specialised knowledge.

8       Sometimes, in order to determine whether an opinion is admissible, it may be necessary to call the expert and for a voir dire to be conducted to determine whether the opinion is admissible.

The report of Mr Contoyannis

9       Mr Contoyannis has qualifications as a mechanical engineer and in biomedical engineering.  He is a member of a number of engineering and ergonomic associations.  He says he has undertaken manual handling assessments, investigated systems of work said to be unsafe and has provided expert opinion in courts in relation to workplace injuries.  He claims his biomechanical experience includes assessment of postures and forces.  He frankly states:

“I do not have experience in the fitting of gas pipes, as would be applicable here.”[2]

[2]Plaintiff’s Court Book (“PCB”) 87

10      He was provided with a range of relevant court documents, an affidavit of the plaintiff sworn 7 December 2016, examined a number of photographs, and interviewed the plaintiff on 20 April 2018.  His report is dated 3 May 2018.

11      In Part 4 of the report, he sets out the “assumed facts”.  Those facts are gleaned from various documents, and his interview with Mr Haslem.  There is reference to Mr Haslem’s experience, the system of work for the installation of the gas poly pipes, the trenches which were dug to enable the poly pipes to be fed into the iron pipe by a team of six workers, five of whom worked at ground level pushing the pipe, one of whom was the plaintiff, who stood in the trench guiding the poly pipe into the iron pipe.  The iron pipe was said to be 100 millimetres in diameter.  The pit was about 1.5-metres deep and about the same distance long.  Mr Haslem was said to be the crew leader and he determined that he would stand in the trench to guide the poly pipe into the iron pipe.  The iron pipe was said to have sharp edges and there was a risk of damage to the poly pipe if it was to scrape along those edges.

12      The poly pipe was said to be bent down from the street level and then pushed to be horizontal with the base of the trench so that it could be fed into the iron pipe on the same plane.  According to the report, the poly pipe would regularly strike something which stopped its progress.  This procedure was said to have been performed in similar situations for about forty years.  Mr Haslem described to Mr Contoyannis:

“… when the polyethylene pipe struck the blockage in the cast iron pipe, the exposed length of polyethylene pipe flexed towards him, pushing and pinning him to the side of the trench. Mr Haslem said that his feet remained stuck in the muddy ground of the trench, and his waist and back were pushed forcefully back onto the side wall of the trench.

Mr Haslem said that he was pushed against the trench wall very quickly … He said that he immediately felt sharp pain in his back as he hit the trench wall.”[3]

[3]PCB 92

13      Mr Haslem prepared a diagram which formed part of Mr Contoyannis’s report.[4]  The first figure depicts the procedure involved in feeding the pipe from the side.  The figure below is said to depict the procedure looking from above.  There is a broken line which is said to depict the movement of the pipe at the time it flexed or buckled.

[4]PCB 93

14      Paragraph 6 of the report made reference to statements obtained from the WorkSafe Victoria website, generally as to obligations upon employers to maintain a safe place and system of work.  There is further reference to the Manual Handling (Code of Practice No. 25, 2000) (“the Code”).  Mr Contoyannis also analysed, in detail, Australian Standard 1470-1986 – Health and Safety at Work – Principles and practices.

15      In paragraph 7, Mr Contoyannis analysed the information and material and came to various conclusions, generally to the effect that the combination of the use of force on the poly pipe, while Mr Haslem was adopting an awkward posture, gave rise to his injury.  He said, in those circumstances, there was high force applied to his lumbar spine, either by his impact upon the trench wall, or by the rapid flexing of his back in an awkward position.

16      In paragraph 7.23, he went on to set out measures which he said were available to the defendant which would reduce the risk of injury.  The measures included a review of the work, application of the principles established by the Code, for the plaintiff to avoid working in a trench, and various devices or pieces of equipment which he said would provide protection against damaging the poly pipe as it was passed through the iron pipe, thus obviating the need for a workman to stand in the trench.  Finally, it was said there ought to have been better and closer supervision.

Analysis

17      Mr Casey took issue with the admissibility of significant parts of the report.  They may be summarised as follows:

·        Mr Contoyannis did not have sufficient expertise nor specialised knowledge to provide an opinion, in particular, given his admission that he did not have experience in the fitting of gas pipes;

·        it was not clear from what source he obtained the assumed facts upon which his opinion was based;

·        there was nothing in his report as to how it was the flex or buckle in the poly pipe occurred;

·        the manner in which he calculated the “critical load”[5] was not clear and the calculations involved indecipherable;

[5]PCB 106

·        there was no clear description of the alternative systems of work or devices[6] which were said to be measures available to the defendant to take to prevent the plaintiff being exposed to risks;

[6]Paragraph 7.23, PCB 102

·        various aspects of his report where he referred to the need for supervision or for workmen to avoid working in a trench were not matters of expertise or specialised knowledge;

·        the information referred to as being obtained from WorkSafe Victoria’s website, and the Code, did not found a basis for civil liability, and in any event, their interpretation is not a matter which requires expertise.

18      In my view, much of the report which presumably will be the basis of evidence to be given by Mr Contoyannis, is inadmissible.  The reasons are as follows:

(a)    Mr Contoyannis makes calculations for the “critical load required for buckling”[7] of the poly pipe.  This is a calculation of significance, as he concludes, as best I understand his report, that the force required to flex or buckle the poly pipe is relatively low.  He uses various assumed measurements of the length, diameter and thickness of the poly pipe.  It will be a matter of evidence to determine whether these calculations are accurate.  He then refers to “flexural modulus”.  It is unclear what this phrase and formula, which follows, means.  He then makes a calculation using the letter “I”.  The formula which follows is quite indecipherable.

[7]PCB 106

He sets an equation which refers to a “k factor” which is, again, difficult to understand.

The issue of the force required to cause a flex or a buckle in the poly pipe may be an issue of significance in this trial as, if little force is required to, as Mr Contoyannis appears to conclude, then it could be said the employer ought to have been alerted to the risk while a workman was standing in the trench.

I do not suggest Mr Contoyannis does not have the expertise to calculate the force required to push the poly pipe or the force required for it to buckle. However, the defendant is entitled to understand the basis upon which Mr Contoyannis concludes little force is required to flex the poly pipe.  The calculations provided are quite indecipherable.  A further supplementary report should be obtained setting out, logically, how he comes to the conclusion he does, using his expertise and specialised knowledge.

It follows that the conclusion he reaches in paragraph 7.8 is inadmissible;

(b)    In paragraph 7.6, Mr Contoyannis says, in pushing the pipe with what he calls an “eccentric load”, this would have been what caused the pipe to flex.  However, there is nothing in the report to establish how he has brought his specialised knowledge to bear to come to that conclusion.  The paragraph is inadmissible;

(c)     In paragraph 7.7, Mr Contoyannis refers to a website from which he has estimated the wall thickness of the poly pipe to be 6 millimetres.  It is not clear the relevance of the website and the relationship of the information to the pipes Mr Haslem was handling.  Unless it is established, by further report or evidence, how Mr Contoyannis has come to the conclusion that parts of the wall thickness used on the day of injury are 6 millimetres, the paragraph is inadmissible, and any calculations which have assumed this measurement also inadmissible;

(d)    In paragraph 7.9, Mr Contoyannis says the crew would have pushed the pipe with “significant force”.  He does not explain how we came to this conclusion, nor what particular expertise he brings to bear.  Without further explanation, the paragraph is inadmissible;

(e)    Likewise, paragraph 7.10.  The conclusion reached is a matter of common sense rather than expertise;

(f)     In paragraph 7.11, Mr Contoyannis says that the injury was caused not only by striking the side of the trench, but also the rapid flexing of the plaintiff’s back in an awkward position.  I have reservations that he has the expertise to draw such conclusion.  It is more within the parameters of the medical specialists.  However, if he is able to show through his “biomechanical engineering” expertise as to how he reached such an opinion, it may be admissible;

(g)    Paragraph 7.13 does not involve the application of any expertise and is inadmissible;

(h)     Paragraph 7.14 does not involve expertise.  It is obvious there are risks involved in working in a trench.  There is no aspect of specialised knowledge to suggest that working in a trench requires planning and risk assessment;

(i)     In paragraphs 7.15 to 7.19, Mr Contoyannis refers to the Code and the obligations placed upon employers to provide a safe place and system of work.  I understand from Ms Forbes, counsel for the plaintiff, that in addition to reference in Mr Contoyannis’s evidence to its provisions, it is proposed that the Code be placed before the jury.

Section 55 of the Occupational Health and Safety Act 1985 provides that the Minister may approve any code of practice “for the purpose of providing practical guidance to employers, self-employed persons and employees …”.[8]

[8]Section 150 of the succeeding legislation, the Occupational Health & Safety Act 2004, provides that a breach of a “compliance code” does not give rise to any civil liability.  Section 168 of the 2004 Act provides s56 of the old Act continues to apply after the repeal of that Act.

There is nothing to suggest any breach of the Code founds a basis in civil liability.  It is clearly a document brought into effect to give guidance to employers and employees in the area of manual handling.

Section 55(8) of the Occupational Health and Safety Act 1985 provides that a person shall not be liable in any civil proceedings by reason only that the person has failed to observe any provision of an approved code of practice.

Section 56 provides that where it is alleged in a proceeding that there has been a breach of the Act or Regulations, a code of practice may be admissible in evidence, although the section would appear to have more application in criminal proceedings.  Nonetheless, I am satisfied relevant aspects of the Code may be placed before the jury to assist them in understanding and interpreting the Regulations.  A clear direction to that effect can be given.  I will need to be satisfied that the relevant aspect of the Code will assist the jury to determine whether there has been a breach of the Regulations.

In Mr Contoyannis’s report, he notes the Code considers tasks involving high force.  He says, in his opinion, the task being undertaken by the plaintiff involved “high force”.  He concluded that exerting high force while standing in an awkward posture with his feet stuck in wet ground, created a risk of injury.  This paragraph suffers from two problems.  The first is that Mr Contoyannis does not explain how he comes to the conclusion that the operation involved “high force”.  The second is that there is no specialised knowledge brought to bear in suggesting that the task involved a risk of injury.  In its present form, paragraphs 7.17 and 7.20 are inadmissible.  If Mr Contoyannis is able to provide a supplementary report in which he details how we came to the conclusion there was “high force” involved, and that he comes to that conclusion using specialised knowledge, then that evidence may be admissible;

The other parts of the report which refer to and consider the Code are inadmissible.

(j)     In paragraph 7.21, Mr Contoyannis says that the plaintiff was placed at risk of injury because it was likely there was an unsafe level of mechanical stress upon his lumbar spine as he had to control the poly pipe being forcefully pushed by the crew while in a narrow trench and without sure footing.  This resulted in an awkward posture and an inevitable imbalance of his torso.  As stated, Mr Contoyannis may be able to give evidence about the amount of force being used by the crew to push the pipe.  This will need to be the subject of a supplementary report.  There is nothing in the report where he sets out how it is he has come to the conclusion that, in combination, the force and the awkward posture placed stress upon his lumbar spine.  As earlier stated, my assessment, absent any detailed explanation from Mr Contoyannis, is that that conclusion is more appropriate for the opinion of the medical expert.  However, again, given Mr Contoyannis’s professed expertise in biomechanical engineering, he may be able to give admissible evidence in that regard.  A supplementary report on this aspect is required;

(k)     In paragraph 7.22, Mr Contoyannis says information about the risks of working in restricted spaces in awkward postures, was widely available to employers.  It may be he can give evidence to that effect, providing he is able to establish by what knowledge or data he came to that conclusion;

(l)     In paragraph 6.6, Mr Contoyannis makes reference to Australian Standard AS 1470-1986 – Health and Safety at Work.  That Standard sets out a range of responsibilities said to apply to employers in order that safe working environments are provided and safe work practices implemented. The Standard would appear very general in its terms, and the matters referred to would appear to be no more than a statement of the duty of care owed at law by employers in the workplace.  Although it was not the subject of argument, I can see no basis upon which that Standard could be admitted into evidence.  There is nothing in Mr Contoyannis’s report as to how he brings specialised knowledge to bear upon the Standard. Paragraphs 6.6 to 6.23 are inadmissible;

(m)   Mr Casey takes issue with the diagram (figure 1)[9] apparently prepared by the plaintiff.  Ms Forbes explained that the diagram depicts the work tasks viewed from the side, and then from the top.  If Mr Haslem confirms in evidence he prepared the diagram and that it showed what occurred, then it is admissible before the jury and maybe referred to by Mr Contoyannis in his evidence;

[9]        PCB 93 and 105

(n)     In paragraph 6.1, Mr Contoyannis referred to the WorkSafe Victoria website and information as to employers’ responsibilities.  Ms Forbes did not press this part of the report was admissible.  Paragraph 6.1 and 6.2 are inadmissible;

(o)    In paragraph 7.23, Mr Contoyannis made reference to measures, including equipment he said was available, or could be constructed, so as to reduce the risk of injury.  The first three bullet points are inadmissible.  He then says a protective cone or flange to avoid damaging the poly pipe being damaged as it entered the iron pipe could have been used.  He refers to rollers on the flange which would allow the poly pipe to be fed into the iron pipe.  He provided a photograph and a website but it is difficult to understand what process is being suggested.  He also suggested a roller guide or trestle, or a flexible pipe or cable feed system, as appropriate alternative pieces of equipment.

The law now requires that in considering the response of a reasonable employer to the risk of injury, and steps which may be taken to avoid that risk, a jury should consider the magnitude of the risk of injury, the chance of it occurring, and the expense or difficulty needed to address it.  It is thus clearly relevant as to whether there were alternative systems of work available which could have reduced the risk of injury, including a system which would obviate the need for a worker to be in the trench.  However, as Mr Casey argues, that alternative system of work should be described with clarity, an appropriate design or diagram provided, and it should address whether such an alternative system may require the employer to construct some mechanical device or purchase it and, if so, at what cost. The evidence should take account of whether such an alternative system was reasonably available.

I am of the view Mr Contoyannis does have the expertise to give such evidence, particularly as to whether any such system would reduce the amount of force required, and thus reduce the risk of the poly pipe flexing or buckling.  However, the evidence needs to be clear as to precisely what alternatives were available and how they were to be obtained or constructed.  The evidence should indicate how it is that such a device would reduce the force required and the risk of buckling.  In its present form, the report is indefinite, and unclear.  A supplementary report ought be obtained which sets out clearly what the alternative system of work being suggested is.

19      In summary, there are many parts of the report which are inadmissible.  Some parts may be cured by a supplementary report.

20      I shall hear further from the parties.

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