Johnston v Rooty Hill RSL Club Pty Limited

[2014] NSWDC 256

District Court

New South Wales

Case Name:	Johnston v Rooty Hill RSL Club Pty Limited
Medium Neutral Citation:	[2014] NSWDC 256
Hearing Date(s):	27 October 2014
Decision Date:	27 October 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	I reject the first report. The second report is admitted subject to the rulings in [18]-[22]
Catchwords:	EVIDENCE - expert report - no testing - opinion not based on training, study and experience
Legislation Cited:	Evidence Act 1995, s 135
Cases Cited:	Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 Honeysett v R [2014] HCA 29 Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555
Category:	Procedural and other rulings
Parties:	William Johnston (plaintiff) Rooty Hill RSL Club Pty Limited (defendant)
Representation:	Counsel: Ms E Welsh (plaintiff) Mr N Polin SC (defendant) Solicitors: Brydens Law Office (plaintiff) Sparke Helmore Lawyers (defendant)
File Number(s):	2013/204561

JUDGMENT

1. The plaintiff seeks to tender two reports of Neil Adams dated respectively 1 April 2013 and 16 December 2013. Mr Adams is an ergonomist with a master's degree in Ergonomics and Safety Management.

THE FIRST REPORT

1. The first report contains comments with respect to the adequacy of the lighting and states that there is risk of injury due to the slipperiness of the surface where the plaintiff fell.

2. In the report, Mr Adams concedes that he undertook no inspection at night, the time when the fall occurred. He also concedes that he made no slip resistance measurements on the surface where the fall occurred.

3. In respect of both lighting and the slip resistance of the surface, Mr Adams accepted a need to return to conduct objective measurements of lighting levels and the slip resistance of the surface if those matters were necessary to be proved.

4. The plaintiff did not press the first report in respect of the lighting but did press it in respect of the slip resistance.

5. Mr Adams' opinion was based upon a "close visual and tactile inspection I made of that surface" and the thousands of measurements of slip resistance he had done of "pedestrian surfaces, including on many painted concrete surfaces". He opined that it was "more probable than not that the painted kerb would be inadequately slip resistant in wet conditions, and even more so having regard to its gradient". I note there is no evidence that he touched or observed the surface when wet.

6. An opinion of slipperiness without proper testing was rejected in Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [42]-[49].

7. Mr Adams accepts that, "usually by undertaking objective measurements", one determines the contribution a surface might make to a risk of slip (paragraph 3.1.2) and indicates a number of factors, most of which are not given further consideration by him. Further, his conclusions at paragraph 3.1.5:

   "In my opinion, it is unlikely that in clean and wet conditions the painted sloping surface on which Mr Johnston slipped could produce an average coefficient of friction that is sufficiently high to enable that surface to be categorised as adequately slip resistant"

   leave uncertain the basis of his views.

8. Mr Adams also states at paragraph 3.1.7:

   "Although I did not make objective measurements on the painted kerb when it was clean and dry, I anticipate it would be adequately slip resistant when it was in that condition. However, I am also confident that an average coefficient of friction of considerably less than 0.4 would [be] obtained by making objective measurements on that surface in wet conditions".

9. These passages underline the uncertainty about the basis of Mr Adams’ opinion.

10. Mr Adams gives opinions about slip resistant surfaces in "external walkway areas". He does not connect these opinions to the particular area of the fall. He does not identify why, if he does reach this view, the particular surface is an "external walkway area", see paragraphs 3.1.5 and 4.5.

11. Further, Mr Adams states at paragraph 3.1.9:

    "Mr Johnston would have experienced a marked reduction in the level of slip resistance available to him when he stepped onto the painted section of the kerb from the asphalt/concrete surfaces on which he had been walking since existing from the Club. His gait would have been appropriate to those more textured surfaces as a result of his experience of walking on them, through a process of adjustment undertaken in the usual sub-conscious manner that pedestrians commonly adopt when tailoring their gait to the level of slip resistance available to them. Pedestrians are in general, and Mr Johnston would have been in the particular circumstances that obtained, more susceptible to slipping on first encountering a new surface that unexpectedly provides a substantially lower level of slip resistance than the preceding surface. Thus, even if the painted surface had been even modestly slip resistant, there would have been some potential for him to slip and fall due to the comparatively lower level of slip resistance afforded by that painted and sloping surface compared to the textured and approximately level concrete/asphalt surfaces across which he had most recently been walking."

12. This assumes a first step onto the surface, which is not established by but is contrary to the evidence given by and case maintained by the plaintiff. Nor is any qualitative measure given of the “approximately level concrete/asphalt surface”, the “sloping surface” or the difference between the slip resistances of the different surfaces.

13. In view of Mr Adams' concession at paragraph 2.2.2, namely,

    "If it is considered essential to the resolution of this matter to prove that the sloping painted surface would have been slippery in wet conditions, it will be necessary to conduct objective measurements of slip resistance on that surface",

    I am not satisfied that Mr Adams' opinion in respect of slip resistance is based on his scientific expertise. The opinion does indicate to me that it is any more than an opinion that a lay person could give looking at the gradient and the painted surface and surmising what it might be like when wet. It bears the indicia of a conclusion that sloping, painted, wet surfaces are more commonly slippery, without any real scientific analysis of the level of the slope, the type or features of the paint or underlying concrete. I am not satisfied that his opinion without more is of sufficient probative value that it should not be excluded under s 135 of the Evidence Act 1995; see Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2012] VSC 555 at [7].

14. Although other parts of the first report not directed at the particular site do not suffer from a lack of scientific measurement and analysis, none of them have any specific application to the particular fall of the plaintiff. The plaintiff was not able to identify where general comments about slip, fall and safety considerations could impact on the particular matter before me.

15. Other parts of Mr Adams’ first report are speculative as to what patrons of the club might do (see paragraph 2.2.3), how the colour difference of the surface might appear in low lighting conditions (paragraph 2.2.4), what might "necessarily" be observed in good lighting (paragraph 2.2.7) and how clubs "tend to refuse admission to people wearing joggers in poor condition" (paragraph 2.2.8), none of which involve his expertise, see generally Honeysett v R [2014] HCA 29 at [43]-[46]. The report also contains assumed facts stated as conclusions (paragraphs 2.2.5 and 2.2.6).

16. In my view, the first report does not as a whole manifest features indicating that it was substantially based upon Mr Adams's training, study and experience. Rather, it contains scientific references and refers to the need for and the absence of measurement, which suggests it is not. Therefore, it is my view that it should not be admitted under s 79 of the Evidence Act 1995. I reject the first report.

THE SECOND REPORT

1. The second report deals with the lighting. The first part of the report up to and including paragraph 1.3 on p 3 was not objected to and is allowed. The defendant challenges the relevance of light measurements at certain locations not identical to the place of the fall. I propose to allow those passages: the probative value or weight can be considered in submissions.

2. I limit the use of the final two sentences of paragraph 1.5 to evidence of assumptions. Also, the words "when it was...at the material time" in the final complete sentence on p 3 paragraph 1.6 are limited to the same extent.

3. I reject the remainder of paragraph 1.6 on the basis that the ability and timing of a person's eyes to adjust to changes in light has not established to be within the expertise of Mr Adams. That passage also suffers from the uncertainty concerning what assumptions Mr Adams made about the lighting and the timing of the plaintiff's walk to the place of the fall.

4. I reject paragraph 2.1 on the same basis that the first report was rejected. In paragraph 2.2 I reject the final line after the first word on p 4 on the basis of consistency with my conclusions about Mr Adams' lack of expertise in relation to the human eye adjusting to light. I reject paragraph 2.3 on the basis that the extent and level of the buildings and the light are not identified.

5. Consistent with these rulings, I reject the final sentence of paragraph 2.4 but allow the first. I reject paragraph 2.5 on the basis that the area is not identified except that to say it is not the location of the fall. Otherwise the second report is admitted.

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