James v Launceston City Council

[2004] TASSC 69

[2004] TASSC 69

CITATION:            James v Launceston City Council [2004] TASSC 69

PARTIES:  JAMES, Gerald Robert
  v
  LAUNCESTON CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 161/2000
DELIVERED ON:  2 July 2004
DELIVERED AT:  Hobart
HEARING DATE:  6 April 2004
JUDGMENT OF:  Slicer J

CATCHWORDS:

Evidence – Admissibility – Opinion evidence – Expert evidence – In general.
Evidence Act 2001 (Tas), ss77, 79.
Clark v Ryan (1960) 103 CLR 486, applied.
Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 80 FCR 276, referred to.
Aust Dig Evidence [55]

REPRESENTATION:

Counsel:
           Plaintiff:  F V Moore
           Defendant:  S B McElwaine
Solicitors:
           Plaintiff:  Archer Bushby
           Defendant:  Shaun McElwaine

Judgment  Number:  [2004] TASSC 69
Number of paragraphs:  16

Serial No 69/2004
File No LDR 161/2000

GERALD ROBERT JAMES v LAUNCESTON CITY COUNCIL

ORAL RULING   SLICER J

2 July 2004

1. These reasons for judgment are published following a ruling given at trial on the admissibility of certain evidence.  They are published separately from the main judgment since the issue is confined to an evidentiary point which might arise in some future case involving the interpretation of the Evidence Act 2001 ("the Act").

1. Objection was taken to portion of the proof of evidence of Caroline McCormack, an occupational therapist who had assisted the plaintiff in his general rehabilitation, and, in particular, his suitability for employment following a motor vehicle accident.  Her qualifications were not in dispute, but her capacity to give certain opinion evidence was challenged. 

1. The Act, s79, states:

"79  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."

Her experience in her field of expertise and her capacity to give opinion evidence was stated as:

"I am an occupational therapist and rehabilitation consultant employed by CRS Australia.  I have been employed by CRS for 3 years approximately.  As an occupational therapist my role with CRS is to assess the potential of injured persons to return either to their previous jobs or to some alternative employment, and to assist them in achieving a return to work.

I attained a Bachelor of Occupational Therapy degree in 1994 at the University of Queensland.  I attained a Post Graduate Certificate in Driver Rehabilitation and Education from Latrobe University in 1999.  I commenced work within a few months of graduating in 1994, at the North West Regional Hospital in Burnie.  I worked both with inpatients at the hospital and at a community based level (in the manner of an outreach service).  I held that position for approximately 12 months, whereafter I commenced work with Latrobe Community Health Services in Moe, Victoria, providing community based occupational therapy."

1. The general discipline and area of expertise qualifies her evidence as being one which is relevantly accepted within a general field (Osland v R (1998) 197 CLR 316) and her general experience acquired within her discipline and through her work is within the framework of a "reliable body of knowledge" (HG v R (1999) 197 CLR 414; Velevski v R (2002) 76 ALJR 402). Portion of that test requires consideration of whether an opinion is based "wholly or substantially on that knowledge". In this case, the evidence sought to be led concerns the functionality of the plaintiff in relation to the performance of certain tasks (Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2001] NSWSC 123). The experience of the witness in the area of occupational therapy constitutes knowledge within the meaning of the Act, s79 (Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111; Price v R [1981] Tas R 306).

1. It is appropriate to commence with the challenged evidence comprised in the supplemental proof of the witness, namely:

"In my opinion as a result particularly of his back injury and its effects upon him, as well as his inability to cope with customers or the general public, there was little employment to which he would be suited.  If he had not had his back injury, he would have been suited to a much greater range of employment options.

Given the limitations he has in relation to his eyesight, Gerald James would, prior to his injury, have been a person who would have relied upon his physical labour to earn an income. … I have been able to find employment positions for other clients who have trouble with their eyesight, and also with anger management, but who do not have Gerald James' physical limitations as a result of back injury.

My experience working with people with chronic pain such as Gerald James has, is that they react to this chronic pain by making irrational and poor decisions about the activities in which they will engage and this occurs largely by reason of their frustration at doing nothing."

The operative words of the above passage are "there was little employment to which he would be suited" and "he would have been suited to a much greater range of employment options". 

1. That is the opinion expressed.  It might be predicated on the findings of others, eg, blood tests, sight capacity and the like, which might require separate proof, but it remains an opinion within the meaning of the legislation.  The second sentence of the first paragraph is unexceptional.  A significant back injury would preclude a "greater range of employment options".  It is the significance and extent of the injury which governs the opinion.  That remains a matter for the ultimate fact finder but the assumption or acceptance by the witness of an asserted or supported fact does not, of itself, deprive the evidence of its "opinion nature". 

1. The first sentence of a second impugned passage might be susceptible to a claim that it suggests a "major impediment" as a fact rather than opinion.  Rather than examine each word and its context, that portion of the proof was excluded since it added little or nothing to the second sentence which is a statement of opinion, namely the existence of a back injury providing difficulties to an occupation which is of a sedentary nature.

1. That opinion might require factual underpinning, eg, whether the account of pain is real or illusory, but the opinion of suitability for or difficulty in a particular form of work remains appropriate evidence within s79 (Barbosa v Di Meglio [1999] NSWCA 307, HG v R (supra), Clark v Ryan (1960) 103 CLR 486). The next passage related to general experience, namely the inter-relationship between chronic pain and the choice or decisions about work related activity. It is within the province of the witness. Counsel for the defendant assumed that the addition of the words "such as Gerald James" has an import which deprived the opinion of its proper characteristics. The objection sought to elevate the particular to a significance which it does not possess. The addition of the words adds no weight to the general statement. The question in issue is whether the plaintiff, as a matter of fact, comes within the general statement of opinion.

1. Objection to material comprised in the first proof requires consideration of the statement giving rise to the reasoning.  The statement is governed by the claim that:

"My decision to close Gerald's program is based on the following facts:-

nIt appeared Gerald was experiencing increased pain and was physically uncomfortable following the 35 minute visit to 'Roadrunners' suggesting he has no, or at best, extremely limited work capacity given the following:

-    This visit did not involve any participation in work activities and was observation only.

-    Gerald had the opportunity to change positions as required during the visit, flexibility that would not [sic] available in many workplaces.

-    Most places of employment are not legally able to employ someone for less than a 4 hour period unless exemption has been obtained.  It is my opinion that Gerald would not be able to sustain employment for a 4 hour block.

-      Gerald's back condition excludes him from participation in manual type work.

-      Gerald's poor tolerance of both static (sitting) and dynamic (walking, standing) postures would result in sedentary positions being unsuitable. His eyesight precludes him from driving and pen/paper based work environments.

-      Discussion with Gerald's doctor who did not consider him fit for participation in re-employment."

The portion emphasised in italics was not pursued by counsel for the plaintiff and was excluded at trial.  It is reproduced here simply to show the context in which the impugned evidence was given.

1. The reasoning process leading to the formation of an opinion must be exposed so that it demonstrates that the opinion is based on specialised knowledge (Ocean Marine Mutual Insurance Association (Europe) OV v JetopayPty Ltd [2000] FCA 1463, Idoport (supra)).  Likewise, the facts on which the opinion is based must be identified and proved either by the expert himself or herself or established by other evidence (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).

1. Here the facts, that is, the existence and nature of injury, must be separately proved, but such does not preclude a statement of opinion.  Here the opinion, strictly expressed, is that a rehabilitation programme was stopped because of the stated and identified reasons. 

1. The last section of the opinion, namely discussions with a general practitioner to which no objection was taken, illustrates the point.  They were the reasons adopted by the witness for her decision. 

1. There is a distinction between admissibility of evidence and the use, notwithstanding the import of the Act, s77, to which it can be put (Clark v Ryan (supra)). 

1. Here exception could be taken to one sentence, namely the capacity to sustain employment for a four hour block if that assertion or opinion stood alone.  But it does not seek to stand alone as an assertion of fact, but as part of a reasoning process. 

1. The real question is use of material. It would appear that the Act, s77, permits the use of evidence submitted for one purpose to prove a fact in respect of which the opinion is expressed, in the same way as hearsay evidence admitted in accordance with the Act, s60 (see Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 80 FCR 276). If the evidence here was led solely to establish a "fact", such as extent of injury, then a discretionary exercise under the Act, ss135 and 136, would be warranted. In other words, evidence of capacity to work a four hour block goes to reasoning and not to the fact of incapacity.

1. For those reasons, the evidence "such as Gerald James" was excluded.  The other evidence was admitted.  The evidence of capacity to "sustain employment for a four hour block" was not received as evidence of a fact, but as a reason why certain rehabilitative processes were not undertaken.