Innes v Rail Corporation of NSW
[2012] FMCA 737
•24 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| INNES v RAIL CORPORATION OF NSW | [2012] FMCA 737 |
| PRACTICE AND PROCEDURE – Affidavits – admissibility of expert reports – whether purported experts have specialised knowledge based on their training, study or experience – whether opinion of experts wholly or substantially based on specialised knowledge – whether expert reports admissible. |
| Disability Discrimination Act 1992 (Cth), ss.5 & 6 Evidence Act 1995, s.79(1) |
| Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCR 146 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Dasreef Pty Limited v Hawchar [2011] CLR 588 |
| Applicant: | GRAEME INNES |
| Respondent: | RAIL CORPORATION OF NSW |
| File Number: | SYG 2646 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 August 2012 |
| Date of Last Submission: | 15 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Edwards/Mr B Fogarty |
| Solicitors for the Applicant: | Public Interest Advocacy Centre |
| Counsel for the Respondent: | Ms K Eastman/Mr T Glover |
| Solicitors for the Respondent: | Ashurst |
ORDERS
The affidavit and evidence of Klaus Clemens shall not be admitted.
Objection to the admission of the affidavit and evidence of Neil Buck dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2646 of 2011
| GRAEME INNES |
Applicant
And
| RAIL CORPORATION OF NSW |
Respondent
REASONS FOR JUDGMENT
Mr Innes is the Federal Disability Commissioner. He is blind. He travels regularly from his home in Roseville to Central and around the state utilising the train services of the Rail Corporation of New South Wales. He claims that upon thirty-six journeys he undertook between 28 March 2011 and 9 September 2011, either no announcements were made prior to the train arriving at certain stations en route or such announcements as were made were inaudible. He claims that this failure caused him anxiety and distress because he was unable to be confident of where he was upon the journey. He has brought proceedings in this court alleging that the action of the Rail Corporation breached ss.5 and 6 of the Disability Discrimination Act 1992 (Cth).
“Section 5
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
Section 6
Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Mr Innes particularly relies on the provisions of s.5(2) and s.6(2) and as a result puts much in issue the question of “reasonable adjustments”. Mr Innes filed affidavits in this matter on 21 November 2011, 2 May 2012 and 28 June 2012. In none of those affidavits does he set out what he considers reasonable adjustments ought to be but in his complaints to the Australian Human Rights Commission he states:
“I seek the following as resolution of this complaint:
1.A written undertaking by RailCorp that the relevant audio equipment on all trains will be checked to ensure that it is working effectively in all carriages on or before ninety days from the resolution of this complaint and a commitment that such equipment will be rechecked at least once every six months.
2.That all current and future RailCorp employees who are required to manually deliver on train announcements receiving training in the use of such equipment within ninety days of the resolution of this complaint and that such training is revised at least once every twelve months.
3.A written undertaking from RailCorp that regular audits of the delivery of on train announcements will occur as part of their regular train audit procedure.”
On 6 June 2012 the respondent filed an affidavit of Anthony Eid. That affidavit set out in some detail the ways in which the respondent had dealt and proposed to deal with what it accepts as its obligation to provide clear and audible announcements on trains. This affidavit and its exhibits would constitute the respondent’s evidence of “reasonable adjustments”.
Those acting for Mr Innes filed two affidavits purportedly constituting expert evidence in reply. One of the reports was written by Mr Klaus Clemens and the other by Mr Neil Lindsay Buck. The respondent objects to the admission into evidence of either of these reports.
In support of her arguments Counsel for the respondent has referred me to Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCR 146; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Dasreef Pty Limited v Hawchar [2011] CLR 588. In this latter case the plurarity; French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ commenced discussion about admissibility under s.79(1) of the Evidence Act 1995:
“[30]Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". That exclusionary rule is referred to in the Evidence Act as "the opinion rule". Subsequent provisions of the Evidence Act provide a number of exceptions to the opinion rule. Section 79(1) provides that:
"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."
[31] Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
[32] To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge".
At [37] they opined:
“[37]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, 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".
And finally at [42]:
“[42]A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.”
The Clemens report
Mr Clemens is the managing director and owner of Requirements Management Australia. He provided a CV as an annexure to his report. He holds a MBA (Technology), a Certificate in Financial Management, a Bachelor of Manufacturing (Chemical) Engineering, a Diploma of Applied Science (Chemistry). He is a member of the Institute of Engineers Australia and Railway Technical Society Australia and a member of the National Fire Protection Agency of America (Rail Transport Division). Since 2000 he has run a consultancy that he established to build on his management experience in the New South Wales State Rail Authority from 1988 to 2000. His consultancy has advised Metro Trains Melbourne on fire and life safety assessment of suburban trains and enclosed railways; Fortescue Metal Group on rail accreditation; the Waterfall Special Commission Enquiry; the SRA on the Parramatta Rail Link tender evaluation and other substantial railway connected organisations. There is no specific reference to providing consultancy services in relation to occupational health and safety or in relation to communication systems, particularly oral communication systems, either in railways or elsewhere. His CV entry relating to his work at the State Rail Authority indicates considerable experience with scheduling and rostering, timetable development, safety management systems and signalling. He undertook work for INDEC Consulting which advised the Victorian State Government on transport matters but his work there appears to have involved investigating design faults and some replacement and refurbishment options.
The letter of instruction to Mr Clemens was dated 3 July 2012. He was provided with a copy of the Points of Claim, a copy of the complaints made by Mr Innes to AHRC, a copy of the Disability Standards for Accessible Public Transport and a copy of Mr Eid’s affidavit. He was informed:
“Mr Innes’ claims specifies 36 separate incidences. Those 36 incidences occurred over a period of 24 business weeks during which time Mr Innes used RailCorp train services approximately eight times a week being a total of 192 journeys. Thus the 36 incidences affected approximately 18.75% of the journeys taken by Mr Innes during the given period (or approximately 1 in 5 journeys) “failure rate””.
Mr Clemens was requested to report under two headings. The first was “Maintenance and Repair Issues”:
“(a) We request that your report:
(a)address itself to the question of what, if any, additional steps, in maintenance and repair, RailCorp could take in relation to its existing stock to improve the likelihood of clear and audible announcements being made on all RailCorp trains and reduce the Failure Rate from 18.75% and
(b)in the context of any additional steps you identify, your assessment of the sufficiency/adequacy of the steps presently taken by RailCorp as set out in Mr Eid’s affidavit resulting in the above-mentioned Failure Rate.
In addressing these two broad questions, you should indicate what you consider to be a minimum achievable Failure Rate in percentage terms based on what is presently done compared to what could be done. You should specify, where possible, how much each stop might be said to reduce the Failure Rate (as a percentage where possible). If there are any additional costs or operational difficulties associated with the additional steps you identify please quantify the cost, describe the difficulties and set out how they might be addressed. In considering all these matters we further ask that you consider the role of the following matters (but not be limited by those matters) in improving, or detracting from the success rate of making clear, audible announcements on all RailCorp trains.
1.The types of on-board announcement systems used on all RailCorp trains, including the specific pieces of hardware crucial to the proper functioning of the system.
2.The reliability of each type of system and/or piece of hardware.
3.The cost of replacing those systems.
4.The cost of retrofitting all order trains with equipment suitable to providing automated, clear and intelligible announcements, including:
a.a general overview of the process involved and
bthe likely period of time it would take to retrofit all trains having regard to the need to decommission trains while still providing the services advertised;
5.Present and potential steps taken to monitor, inspect and maintain the effective operation of on-board announcement systems.
6.The most common types of mechanical faults, defects or malfunctions in on-board announcement systems including how they manifest (e.g. whether they can effect only one carriage or all), the likely causes, the period in which they could be fixed and the period in which they should be fixed.
7.The present and potential systems for checking on-board announcement systems.
8.Your knowledge of Failure Rates in other jurisdictions (eg: the London).”
It will immediately be seen that the task given to Mr Clemens is a very substantial one. It would appear to be a task requiring the collection of a very substantial amount of evidence, all of which would have to be proved in order for any report upon it to have validity. The report would also need to indicate the connection between Mr Clemens’ views expressed and his expertise. It should also be noted that “failure rate” is a defined term. It comes from Mr Innes’ own observations of his trips, mostly along the North Shore of Sydney. Notwithstanding this exceptionally narrow geographical sample the failure rate is applied universally to the whole of the respondent’s network which covers not only the North Shore but the west and south west of Sydney and within the state. It seems to me that if Mr Clemens is to opine with any authority upon ways in which to reduce the failure rate universally, which is what it appears he is being asked to do, he must first establish what that failure rate really is and cannot rely upon Mr Innes’ small and geographically restricted sample. This he has not attempted to do.
After Ms Eastman had addressed me at length upon the alleged failings of Mr Clemens’ report, Ms Edwards, who appeared for Mr Innes, made a very substantial redaction to it. What was left consisted of a rehearsal of Mr Innes’ claims and the preparation of tables identifying the faults themselves and the types of railcar in which he travelled. After doing this the report states:
“Five (28%) of the Tangara trains had a fault reported on them by the Guard. Two (13%) of the 15 S-Set trains also had a fault reported on them by the Guard. If I assume Mr Innes sampling is random for selecting individual train sets within a train type population; then I conclude that there is a systematic problem with the PA system on the T & S sets based upon the high incidence of failure results recorded in the METRE data base compared to my experience in the Melbourne fleet. I discuss this further later in the report when I consider maintenance issues.
Mr Innes also travelled on an H-Set otherwise known as an Outer Suburban Car (OSCAR) a very late model train with the most modern automated on-board passenger information system including automated next station announcements, according to Mr Eid’s affidavit at paragraph 48. No fault was recorded in METRE for this train and this suggests to me that Mr Innes personal requirements for volume and clarity may be very particular. Alternatively the rail environment can be very noisy and anyone who has been on trains with a large group of school children will know the ambient noise present so it is difficult to assess why the ORCAR [sic] PA did not meet Mr Innes requirements.” [emphasis in original]
There is nothing in these statements which indicates how Mr Clemens, based upon his training, study or experience, comes to this conclusion which applies to the entire fleet. Mr Clemens makes reference to his experience in the Melbourne fleet but does not state what it is and the fleet standard section in the report has been deleted. I can see nothing in the evidence of Mr Clemens’ training, study or experience which would enable him to make these comments.
The next piece of the report that remains deals with supervision. It states:
“Supervision
Supervise means to have the charge and direction of or have the direction and oversight of the performance of others. In my view the Supervision of the Guards needs to include an effective process for providing direction and oversight of their performance. A review of the forms in AE-1-38 titled “Special Announcement, Uniform and Grooming Checks” as described in paragraph 87 of Mr Eid’s affidavit, indicates to me from the briefness of comments provided in the 174 pages of one page reports; that the direction and oversight provided is superficial and without real effect on the subject of the need for Guards to fulfil their role in providing Journey Information to passengers. It is no surprise to me then that the results of the Customer Service survey at AE-1-37 pages 425, 426 & 427 with respect to journey information demonstrate such low levels of compliance by the Guards on this subject.
James Reason a world authority on human performance and error management in his book titled “Managing the Risk of Organisational Accidents” at figure 9.4, page 209, provides a culpability decision tree that provides some framework for addressing the Guards performance. Reproduced in attachment E. Putting aside the second column on the question of “unauthorised substance” the model can be translated to the document process for making announcements as illustrated in the figure below.” [emphasis in original]
Mr Clemens is critical of a document produced by the respondents but there is no indication of how this criticism is arrived at from his expertise. Again he makes reference to the general, rather than to the specific 36 journeys that Mr Innes complains about. Supervision is again referred to in the context of some anonymous checks that have been instituted by the respondents to monitor compliance with the respondent’s standard instructions to guards. He produces a table of the failure of guard’s announcements taken from one of Mr Eid’s exhibits in which the highest percentage of non observant activity is 17%. He then says:
“This RailCorp data shows very high levels of non-compliance by Guards with the documented procedure General Orders 36 […] [it] demonstrate[s] such low levels of compliance by the Guards on this subject that I believe the process of Supervising Guards to comply with their training in respect to providing travel information is out of management’s control. RailCorp needs to establish effective measures to achieve compliance such as a structured process discipline as outline [sic] in the previous figure. Nor should it be reactive to issues as suggested by Mr Eid’s affidavit at 87 (c) “Since mid-April 2012 random compliance checks has [sic] been increased in all sectors”.” [emphasis in original]
Leaving aside the breadth of this assertion based as it is upon a very small sample, there is no indication of any connection between the finding and Mr Clemens’ expertise, neither is there any definition of either “very high levels of non compliance” or “low levels of compliance”. Generally, the whole of this section seems to me to be a section upon which expertise is required in human resources and that Mr Clemens does not have.
The next remaining section refers to a system that is being put in place by the respondents called “Test Toning”. Mr Clemens does not appear to have any qualifications in sound engineering or experience which would enable him to comment authoratively on the Australian standard sound systems for emergency purposes for speech intelligibility to which he refers. Notwithstanding this he comes to the following conclusion:
“The use of the Test Tones to test the function of the PA system as described in AE-1-34 & 35 fails to provide a standard description or measure for “intelligibility” or the volume or clarity of the Test Tone. This allows the maintainer to decide and as was seen in the METRE results of AE-1-12, summarised in the following table some Guards Operating Standards are different to the Maintainers who found half of the faulty trains had no faults with the PA reported faulty by the Guard. In my view this has resulted in their not being a standard of maintenance for the PA on the RailCorp fleet.” [emphasis in original]
Whilst these observations are interesting and could have formed the basis of cross examination of Mr Eid, from which admissions may or may not have been made, they are remarks which do not emanate from Mr Clemens’ expertise and there is certainly no basis shown for utilising the test reports as indicative of the whole of the RailCorp fleet.
Mr Clemens then provides a further table entitled “Summary of PA faults recorded by RailCorp’s Metre Database on the trains travelled on by Mr Innes”. Six faults are referred to from which Mr Clemens comes to the following conclusion:
“Also I can conclude that on average, from a small sample, it took 2.3 days to attend to the PA fault and the range was 4 days. In my experience this is too long and PA faults should be attended to in the Yards each night as a matter of course.” [emphasis in original]
Regrettably we are not told what part of his experience leads him to this view.
Mr Clemens’ report concludes:
“My opinion and conclusions listed above are wholly or substantially based upon my field of specialised knowledge and also being wholly or substantially based upon the facts that I have applied both assumed and observed.
Based upon my experience as a passenger, fleet engineer and railway executive in my view the high incidence of incomplete announcements demonstrated tin the data provided, for whatever reason, is indefensible for a public transport service business.
My assessment of the proposed further actions to improve the performance of the Guards in making manual announcements would result in a 10% improvement in performance and be both reasonable and practical for RailCorp to implement. I do not consider it practical to consider RailCorp could achieve an organisational reorganisation that would achieve that described as High Performance with it’s [sic] present ownership structure.”
The first paragraph contains two problems for the applicant. There is firstly no demonstration there or elsewhere in the report of how his opinion and conclusions are based upon his field of specialised knowledge. Secondly, there is no identification of what facts he has assumed and what facts he has observed. The second paragraph makes reference to his experience as a passenger, fleet engineer and railway executive. But he is being asked his opinion as an expert in the particular matters to which his attention has been drawn. There is no relevance in his experience as any one of those three categories. The third paragraph provides a figure for an improvement but there is no scientific basis shown for the production of that figure. It seems to have been plucked out of the air.
As Ms Eastman rightly says, the court should not allow the introduction of a report purely to enable the party presenting the report to utilise his cross examination for the purposes of buttressing a report’s fundamental weaknesses. If a report cannot stand as served then it should not be used. I am not prepared to admit Mr Clemens’ report.
Mr Buck’s evidence
Mr Buck is a consultant and director of Neill Buck & Associates Pty Limited. He has clearly had experience of providing expert evidence to courts because he commences his report letter with:
“Particulars of Training, Study and Experience”
He states:
“I have specialised knowledge in areas of compliance, risk management and complaint handling. I have acquired this specialised knowledge through many years experience as a compliance consultant and regulator and through relevant training and study in these areas.”
He then sets out his work experience of over 15 years providing compliance and risk management consulting services to corporate, government and not for profit clients. His services have included:
“Designing and conducting reviews and investigations of business systems and procedures:
· Providing advice to organisations on how to manage regulatory and legislative risks; and
· Developing and delivery training on these issues.”
I am satisfied from the balance of Mr Buck’s CV that he has substantial experience in compliance practice and risk management. He has also had extensive experience as a trainer and educator in those areas. He states under the heading “Scope of this Report”:
“This Report sets out my expert opinion based on my specialised knowledge and expertise in the areas of compliance, risk management and complaint handling in relation to the systems and processes that RailCorp has in place for ensuring that its guards make audible announcements on trains. The specific questions that I was asked to address in relation to this issue are set out in the letter form the Public Interest Advocacy Centre (PIAC) dated 11 July 2012 and attached to this Report at “G”.”
Mr Buck was sent a letter very similar to that sent by Mr Innes’ solicitor to Mr Clemens. That letter also defines “failure rate” with reference to Mr Innes’ 36 journeys and asks him to indicate what he considers might be a minimum achievable failure rate “based on what is presently done compared with what could be done.” In Mr Buck’s report he defines the questions he was asked to address as follows:
“The two broad questions I was asked to address in my report were as follows:
(a)what, if any, additional steps, in terms of human resource management, RailCorp could take in relation to its staff, including but not limited to guards and drivers, to improve the likelihood of clear and audible announcements being made on all RailCorp trains and reduce the Failure Rate from 18.75%; and
(b)in the context of any additional steps I identified, my assessment of the sufficiency/adequacy of the steps presently taken by RailCorp as set out in Mr Eid’s affidavit resulting in the above-mentioned Failure Rate.”
There are two problems with this “scope of works”. Firstly, there is no basis for assuming that the failure rate on the RailCorp system as a whole is 18.75%. Secondly, there is no evidence in Mr Eid’s affidavit that results in that failure rate. There is a third and perhaps most serious problem. That is that Mr Buck is asked to make his report “in terms of human resource management”. This is not a skill he professes to have. Mr Buck sets out his assessment framework:
“Assessment Framework
In addressing these questions, I have applied the assessment framework that I typically use when assessing whether an organisation has met its compliance and risk management obligations. In particular, I have considered the following:
(a)Does the organisation have a system in place for identifying and rating risks?
(b)Does the organisation have systems and procedures to manage those risks effectively including an effective compliance program, competency based program training and assessment programs and reporting arrangements consistent with the nature of the risk?
(c)Does the organisation have a culture that encourages reporting?
(d)How does the organisation assess the effectiveness of its compliance and risk-management program?
In considering these questions, I also take into account the principles that have been set out in Australian Standards relating to the design, development, implementation and review of compliance, risk and complaint handling procedures. These Standards include the Australian Management (AS 3100:2009) and the Australian Standard for Risk Management (AS 3100:2009) and the Australian Standard for Customer Satisfaction – Guidelines for Complaints Handling in Organisations (ISO 10002L2006). Copies of these Standards are attached to this Report at “H”, “I” and “J” respectively.”
Mr Buck also sets out his factual findings and assumptions. These refer to Mr Innes’ affidavit and his report of the failure rates on the journeys he complained about and the findings of a survey contained in Mr Eid’s affidavit in relation to manual announcements which indicated a 28% non success rate. Mr Buck then proceeds to the questions he was asked and responds to them not in terms of human resource management but more in terms of compliance programs. However, I can see that it is arguable that the introduction of compliance programs and their competent monitoring could have the required human resources effect of improving the standard of communication. Mr Buck commences by suggesting that the respondents establish competency standards for the making of audible announcements and makes reference to a standard “TLIC3057A Perform guard duties as part of electric passenger train operations”. There is a complaint that Mr Eid was not cross examined about this but that is not a reason for not admitting the report as a whole. He goes on to suggest:
“Establish suitable test and assessments for measuring and assessing competency standards in making audible announcements.”
and continuing with other suggestions along the same lines. Given that these proposals are all classed within the general definition of compliance they are clearly within Mr Buck’s expertise.
Mr Buck then proceeds to respond to the second question stating:
“In the context of any additional steps you identify, your assessment of the sufficiency/adequacy of the steps presently taken by RailCorp as set out in Mr Eid’s affidavit resulting in the above-mentioned Failure Rate?
My comments above apply.
In my view, the steps presently taken by RailCorp as set out in Mr Eid’s affidavit are inadequate for the following reasons:
· they fail to provide a competency based standard for audible announcements;
· they fail to provide a system for consistent assessment of a competency for audible announcements;
· they fail to adequately identify and communicate the risk to RailCorp and to Mr Innes and other blind and vision impaired people of the failure to make an audible announcement; and
· they do not appear to extend disciplinary procedures to drivers and others who may be aware of a failure by a guard to make an audible announcement.”
He then proceeds to address the question:
“What is a reasonable failure rate for announcements.”
He does that in this way:
“What is a reasonable failure rate for announcements?
I am not able to be specific but it seems to me that given the risks, a 28% failure rate is unacceptable. In my view, given the risks identified above, it would be reasonable to expect that except for mechanical malfunction there should be no failure rate for guard initiated audible announcements.
All customers should be able to know where they are on the network, be able to be informed of the impending stop so that they may move to an exit and where a delay or emergency occurs, customers should be informed clearly and in a timely manner.
The matters raised by Mr Innes and their potential for a catastrophic event should be part of any training program so that guards and others understand the significance of this risk from the perspective of those groups mentioned above and the travelling public generally.”
This is clearly not an answer supported by evidence for the reasons given in the first sentence but it does not seem to me to be something which should permit the court to exclude the entire report. If it is not cross examined upon it will stand as a piece of evidence which provides the court with very little assistance.
Mr Buck’s report does not end there. There are a series of comments under the heading:
“Other factors I addressed”
The individual sub headings are essentially a critique of the arguments that Mr Eid puts up indicating that the respondent has and is making reasonable adjustments. Again they are looked at purely from a compliance point of view. If truth be told that is how they appear to have been approached by Mr Eid. Compliance in this context meaning the preparation of programs to achieve a particular goal and the monitoring of those programs to ensure that they are carried out effectively. Mr Buck’s evidence does not go to any engineering or mechanical matters upon which he clearly has no expertise but is all about managing the staff in order to produce the result of reducing the number of failed announcements. Whilst I can see that there are opportunities within the report for cross examination I do not think that this is a report which should be excluded. I also do not think that the fact the report does not really embrace the whole of the letter of instructions as a fatal defect. It seems to me that Mr Buck, being an experienced witness, has carved out of the letter of instruction those matters on which he is qualified to opine and then does so. I would admit Mr Buck’s report.
In making the finding in relation to Mr Buck I do not exclude the ability of the respondent to put up further arguments that have been flagged concerning the admissibility of parts of the report. For example, the concern expressed that the report is a “report in reply” rather than evidence in chief or that there might be matters in the report which were not put to Mr Eid. If the respondent wishes the court to deal with such matters then it is required to provide me with written submissions seven days before the date fixed for hearing of Mr Buck’s evidence and for the applicant to respond three days prior.
The court is able to hear Mr Buck’s evidence on 12 October at 10:15am if that is convenient to the parties.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 24 August 2012
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