Mattock v State of New South Wales (New South Wales Department of Education) (No 1)

[2021] NSWSC 477

Supreme Court

New South Wales

Medium Neutral Citation:

Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477

Hearing dates:

5 May 2021

Date of orders:

5 May 2021

Decision date:

06 May 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

.

Catchwords:

Admissibility of expert’s report

Legislation Cited:

Evidence Act 1995 (NSW), s 79

Cases Cited:

Dasreef (2011) 277 ALR 611

Allstate Life Insurance Co v Australia and New Zeeland Banking Group Ltd (No 5) (1996) 64 FCR 73

Risk v Northern Territory [2006] FCA 404

Texts Cited:

Miiko Kumar, ‘Admissibility of Expert Evidence: Proving the Basis for an Expert’s Opinion’ Sydney Law Review, VOL 33:427 2011

JD Heydon, Cross on Evidence (Butterworths, 7th ed, 2004)

Category:

Procedural rulings

Parties:

Daniel Francis Mattock (Plaintiff)
State of New South Wales (New South Wales Department of Education) (Defendant)

Representation:

Counsel:
M Niel QC with R di Michiel (Plaintiff)
M Fordham SC with S Love (Defendant)

Solicitors:
Stacks Goudkamp (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2018/190832

Publication restriction:

Nil

Judgment

1. HER HONOUR: This judgment concerns the admissibility of an expert’s report on liability.

2. The plaintiff seeks damages for personal injury arising out of a head clash he sustained while playing a hybrid/creative game during a physical education and sports studies (PASS) class. on 29 June 2012 at Eden Marine High School (the school). This hybrid/creative game is a unit in PE programme which involves mixing the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game. It enables students of different abilities to get involved and practice different skills.

3. The defendant objects to the whole report of Ken Armanasco dated XX February 2018 being tendered in evidence. The defendant submitted that Mr Armanasco is not qualified to give evidence about touch football or teaching, he is not qualified in first and his opinions are legal conclusions.

4. The plaintiff submitted that Mr Armanasco’s expertise in the field of sport is of itself sufficient and, when this is considered in combination with his educational and risk management qualifications, this provides full qualification.

5. Section 79 of the Evidence Act 1995 (NSW) relevantly reads:

“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.

…”

What is expert evidence?

6. A helpful summary is contained in an article “Admissibility of expert evidence: Has the basis rule survived s 79 of the Evidence Act?” by Hugh de Kock dated November 2014.

7. Expert evidence is a species of opinion evidence. A common definition of the term “opinion” is “an inference drawn or to be drawn from observed and communicable data”: Dasreef (2011) 277 ALR 611 per Heydon J at [53] quoting from Allstate Life Insurance Co v Australia and New Zeeland Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. Generally speaking, evidence of someone’s opinion, as opposed to facts directly observed, is inadmissible. s 76 of the Evidence Act 2008 (Vic). The law therefore draws a distinction between facts and inferences based on facts, although this distinction is not always easy to draw: Risk v Northern Territory [2006] FCA 404 at [472]-[473]. It is the business of witnesses to state facts, whereas it is the function of the judge or jury to draw inferences based on the facts put in evidence: JD Heydon, Cross on Evidence (Butterworths, 7^th ed, 2004).

8. Expert evidence is a reasoned inference or set of inferences (the opinion) drawn by someone with specialised knowledge from facts that the expert has either observed or assumed. The opinion must be based, at least substantially, on that person’s specialised knowledge: Miiko Kumar, ‘Admissibility of Expert Evidence: Proving the Basis for an Expert’s Opinion’ Sydney Law Review, VOL 33:427 2011 at 427 Expert evidence is admissible as an exception to the general rule that evidence of an opinion is inadmissible: s 79 of the Evidence Act.

The expert’s evidence

9. In 1986, Mr Armanasco completed a Bachelor of Applied Science (Physical Education) and a Diploma of Education at the Phillip Institute of Technology. While he qualified as a PE teacher some 30 odd years ago, other than the practical components of his degree he has not taught PE at a secondary school. It is beyond doubt that he is a highly qualified gymnastics coach. Mr Armanasco holds a Graduate Certificate in Occupational Health & Safety. He has been appointed to the Victorian WorkCover Authority OH&S practitioner panel and ergonomics.

10. Mr Armanasco gave more detailed evidence than was contained in his CV as to his qualifications and experience. He gave evidence that to ensure accuracy when preparing his report, he looked up the rules that were available but he also knew the rules from playing touch rugby as a player, and also as a student of physical education he learned the rules. He has not coached touch rugby (T228.10-21).

11. He has codesigned new gymnastics at RMIT University. Sometimes other sports would come to that facility and he would provide some specific training such as diving, soccer, basketball. He would teach them injury minimisation techniques and landing skills (T222.47-50). Mr Armanasco says that these skills are relevant to rugby and fundamental to AFL (T222).

12. At RMIT he looked at the organisation of school sporting events, again including setting up equestrian and ensuring that proper safety facilities were in place, first aid medical facilities were in place, access for emergency vehicles was in place, so it really was around managing the risk around the, the events, rather than the skill components, that was the responsibility of the physical education staff.

13. He covered safety audits and reviews of school which involved a general safety audit or gap analysis where there might be some issues with safety or managing risk including outdoor activities and excursions. He said his team then work with the physical educators to help them understand risk management and how that should be integrated within physical education programs (T225.1-23). His physical education degree also included biomechanical and physiological training (T227.41-42).

Resolution

14. Taking the above into account, it is my view that Mr Armanasco does not have the specialised knowledge in teaching or supervising physical education to secondary school students and in particular the hybrid/creative game that mixes the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game. It is on this basis that I have rejected the expert’s report of Mr Armanasco.

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Decision last updated: 27 May 2021