Hubbard v G4S Custodial Services (Ruling No. 1)
[2013] VSC 584
•24 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 05559 of 2012
| COLIN HUBBARD | Plaintiff |
| v | |
| G4S CUSTODIAL SERVICES PTY LTD | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2013 | |
DATE OF RULING: | 24 October 2013 | |
CASE MAY BE CITED AS: | Hubbard v G4S Custodial Services (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 584 | |
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EVIDENCE – Expert evidence – Admissibility of report of security expert – Failure to make adequate statement of reasoning based on expertise.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr M Ruddle | Nowicki Carbone |
| For the Defendant | Mr R Middleton SC with Ms J Frederico | Wisewould Mahoney |
HER HONOUR:
The plaintiff, Mr Hubbard, was employed as a custodial officer by the defendant, ‘G4S’, at the Port Phillip Prison on 28 May 2010 when he was allegedly injured whilst restraining a prisoner in a hospital cell. He claims that he was injured when a fellow prison officer came to assist and ended up on Mr Hubbard’s back.
Mr Hubbard seeks damages from G4S claiming that it breached its duty to take reasonable care for his safety so as to avoid the foreseeable injury he suffered. He alleges that G4S negligently failed to provide him with a safe place or system of work.
Dr Tony Zalewski is said to be an expert in the development and review of security and safety systems in the field of occupational health and safety. In a report dated 19 September 2013, he answered five questions posed to him by Mr Hubbard’s solicitors. G4S argued that each answer failed to comply with the so-called ‘statement of reasoning rule’. It did not fall within the exception relating to opinion evidence in s 79(1) of the Evidence Act 2008 and was, therefore, inadmissible by virtue of s 76. Counsel for Mr Hubbard resisted this challenge to the admissibility of Dr Zalewski’s opinion.
I ruled that the statement of opinion in answer to the five questions was inadmissible and now state my reasons.
Sections 76 and 79(1) of the Evidence Act 2008 are in these terms:
76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
79 Exception—opinions based on specialised knowledge
(1)If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Each of the parties relied upon this statement of the law by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Dasreef Pty Ltd v Hawchar[1] where their Honours said:
The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in [Makita (Australia) Pty Ltd v Sprowles], that “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”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.[2]
[1](2011) 243 CLR 588.
[2]Ibid 604 [37], citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
Heydon J explained the ‘statement of reasoning rule’ when his Honour said in the same case:
Authority. There is ample authority supporting the view that it is not enough for evidence tendered under s 79 merely to state the expert’s qualifications in a field of expertise and the conclusion. It is necessary to avoid the insidious risk that the trier of fact will simply accept the opinion without careful evaluation of the steps by which it was reached, and hence the evidence must state the criteria necessary to enable the trier of fact to evaluate that the expert’s conclusions are valid. The evidence must reveal the expert’s reasoning – how the expert used evidence to reach the opinion stated. It is not enough for evidence tendered under s 79 merely to state the expert’s qualifications in a field of expertise and the conclusion. Admissibility does not depend on the reasoning being accepted as correct; that is a matter of consideration at the end of the trial. But admissibility does depend on the reasoning being stated.
Principle. In principle, that line of authority is correct. There is nothing in s 79 which suggests that the corresponding common law rule has been abolished and the language of s 79 positively supports its continuance, without a statement of the expert’s reasoning it is not possible to say whether the opinion or substantially based on the specialist knowledge claimed. (Citations omitted)[3]
[3]Ibid 638-9 [129]-[130] citing Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 165 A Crim R 151, 226 [289]-[290]; Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146, 151 [22]-[23]; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397, 420 [107].
The questions and answers
In this case the questions and answers were stated as follows:
1.Whether the officer Mr Plonsker overreacted in the circumstances and caused the Plaintiff’s injury.
On the information provided Mr Plonsker overreacted. The Plaintiff advised he had effective control of the prisoner when Mr Plonsker arrived at the cell. Correctional Officer Rush in her statement supports the Plaintiff in that the prisoner was effectively control i.e. “The prisoner was on the ground and he couldn’t move though he was still yelling …”. It was at that time that Mr Plonsker entered, applied force to the prisoner and incidental to that process collided with the Plaintiff. Mr Plonsker, in his statement acknowledges that ”Colin said to me that they had it under control” and yet Mr Plonsker intervened physically anyway. Intervening in these circumstances increased the risk of injury (sic).
2.What should have been the correct procedure and what should have been undertaken by the Defendant to prevent the Plaintiff from being injured?
In the circumstances of this case I would expect Mr Plonsker to:
1.conduct a quick assessment of risk at the cell door;
2.monitor the effectiveness of the physical controls placed upon the prisoner;
3.not intervene as the prisoner was controlled but rather maintain a position at the cell door to ensure this incident was protected from any potential interference i.e. another prisoner entering the cell; and
4.assist/direct a safe withdrawal of staff once it was determined there was no ongoing medical emergency involving the prisoner (sic).
3. Whether a safe system or procedure was used in the circumstances
A safe system/procedure was not used in the circumstances of this case. There is no evidence within any of the materials that discloses the safe system/procedure to guide staff about how to safely intervene should an urgent or immediate intervention be required. Instructions such as be aware of safety issues is not a procedure that can be used for guidance of staff involved in high risk of incidents. The literature is quite clear that errors will occur where human discretion can be exercised within a system. Hence, the importance of proceduralising or providing step-by-step instructions in documented form and training staff against these procedures (sic).
4.Whether Mr Plonsker should have just kept an eye out and waited for an officer to cuff the prisoner
For the reasons outlined in the (1) and (2) above, in my opinion Mr Plonsker should merely have monitored the situation and only intervene if required by the Plaintiff or another staff member. It must be remembered that the Plaintiff clearly stated he had the incident under control … (sic).
5.What would have been a safe system and method of handling the situation in the circumstances?
A safe system comprises a number of elements developed from a risk assessment and involves protocols, physical measures and competent personnel. Training also forms part of a safe system. The theme clearly articulated throughout the legislation, sector Standards, and Port Phillip Prison operating procedures is safety and security and yet, the system as discovered in this case does not disclose a level of appropriateness that guides staff with minimum exercise of discretion, especially in high risk operations such as physical control of a prisoner. The absence of such guidance within the system means that the system is flawed in the area or areas concerned. This increases risk (sic).
Discussion and Conclusion
The answers given by Dr Zalewski stated his conclusions. His report had previously described the bases of his expertise, referred to documents provided to him by Mr Hubbard’s solicitors, stated background facts about which he had been advised, given an account of information provided to him by Mr Hubbard in interview and noted particular matters in relation to the documents supplied. Dr Zalewski had also referred to some history of the involvement of G4S in Port Phillip Prison.
What he did not do in answering any of the questions was clearly state how he reached his factual conclusions on the basis of relevant expertise, as required by Dasreef.
Each of the answers suffered from the same defect. For instance, Dr Zalewski did not explain what he took ‘overreact’ to mean in question 1. In his answer to question 3, his reference to ‘the literature’ was too broad, as were his references, in answer to question 5, to the ‘security and safety’ ‘theme’ of ‘legislation, sector Standards and Port Phillip prison operating procedures’ and the ‘level of appropriateness’.
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