McKenna v Karingal Inc (Ruling)

[2021] VCC 1361

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CI-20-04424

KIM SHEREE MCKENNA	Plaintiff
v
KARINGAL INC (ABN 97 468 305 401)	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Warrnambool
DATE OF HEARING:	20 September 2021
DATE OF RULING:	21 September 2021
CASE MAY BE CITED AS:	McKenna v Karingal Inc (Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1361

RULING
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Subject:EVIDENCE

Catchwords:              Admissibility of expert evidence – whether expert engineer’s opinion evidence based upon specialised knowledge, training and experience – plaintiff suffered injury when she stepped or fell from rear platform of a van in the course of work as a disability carer – whether opinion a recitation of the facts presented – whether issues in the proceeding can be determined without the need for expert evidence

Legislation Cited:      Evidence Act 2008; Occupational Health and Safety Act 2004

Cases Cited:Makita (Australia) v Sprowles (2001) 52 NSWLR 705; HG v R (1999) 197 CLR 414; Baulch v Lyndoch Warrnambool & Anor [2008] VSC 420; Rees v Lumen Christi Primary School [2010] VSC 514

Ruling:  Evidence inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC with Mr G Pierorazio	Arnold, Thomas and Becker
For the Defendant	Ms B A Myers with Mr T Storey	Thomson Geer

HIS HONOUR:

1This Ruling concerns an application by the defendant to have the evidence proposed to be given by an engineer and ergonomist, Mr Edward Dohrmann, determined as inadmissible.  I ruled in the course of the trial the whole of the proposed evidence is inadmissible.  These are the reasons.

2The plaintiff, Ms Kim McKenna, suffered injury to her left leg when, in the course of her duties as a disability carer for the defendant, she fell as she stepped from a hoist or platform (“the platform”) attached to the rear of a small bus or van (“the van”) used to transport wheelchair-bound clients of the defendant.  The incident happened on 26 June 2016 when Ms McKenna took two clients on a recreational outing.

3Ms McKenna seeks pain and suffering damages for the injury which she says arose as a result of the negligence of the defendant.

4The particulars of negligence attached to the Statement of Claim plead:

(a)   failing to provide a safe system of work;

(b)   failing to provide a safe place in which to work;

(c)   failing to properly instruct the plaintiff;

(d)   failing to properly supervise the plaintiff;

(e)   failing to properly train the plaintiff;

(f)    failing to have any or any proper system for lowering clients in wheelchairs from the minibus;

(g)   failing to take reasonable care for the safety of the plaintiff in the circumstance;

(h)   failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder.

5The particulars are general in nature and give little insight into the key issues in the proceeding.

6On the day in question, Ms McKenna drove the van to Hopkins Falls, a short drive from her workplace in Warrnambool.  She had with her two clients, one of whom was in a motorised wheelchair.  The other was ambulant.  Both had limited ability to communicate.  When she arrived at the Falls, she parked the van on an area of asphalt, the surface of which she said was somewhat uneven with potholes and depressions.  She opened the side sliding door, and one of the clients got out of the bus.  The other client, in his wheelchair, was towards the back of the van, and secured by straps at both the front and rear which held the wheelchair secure.

7The van had a platform which, by a hoist mechanism, was used to assist in the unloading of the wheelchair from the rear of the vehicle.  Various photographs show the van, the platform, and the manner in which clients in wheelchairs could, with assistance, alight from the van.[1]

[1]Defendant’s Court Book (“DCB”) 23-28

8Ms McKenna entered the vehicle from the side door and released the forward restraints holding the wheelchair in place.  She then went to the rear and opened the rear door to enable her to release the rear restraints.

9Ms McKenna is of short stature, less than 5-feet tall and of large build.  The platform, when raised into the van, presented a barrier against Ms McKenna being able to release the rear straps.  She operated the platform through a control device[2] (“the control”) which operated in two ways.  Firstly, the platform unfolded outwards from the rear of the vehicle, and then descended to the ground.

[2]Photograph DCB 43

10Even with the platform lowered to the ground, Ms McKenna was unable to get close enough to release the rear straps. She used the control to unfold the platform and lower it to the ground.  She then stood onto the platform and raised it to about level with the floor of the van.  This enabled her to gain access to the rear of the van and release the straps.  Having unclasped the strap, she needed to return to the ground, and again enter the van from the side door to ease the wheelchair back out onto the platform.

11As she stood on the platform, she lowered it towards the ground using the control.  She said she stopped the platform about 9 or so inches from the ground.  This, she said, was the way she had been instructed, and was what she observed when other employees performed the same procedure.

12Ms Kenna stepped backwards towards the ground, holding one of the handles on the side of the platform.[3]  She does not recall exactly how she fell as she stepped down, but her left foot twisted on the uneven ground and she fell heavily.  She suffered a serious injury to both her left ankle and left knee.  That injury has required extensive treatment, including surgery.

[3]As depicted in Photograph DCB 26

13Ms McKenna says it was common practice for employees to ride the platform in the unloading process and in fact this was provided for in a safety instruction manual for the relevant vehicle.[4]  According to the opening of counsel for the plaintiff, Mr Brett, following the incident, an instruction was given to employees not to ride the platforms at any time.

[4]Exhibit A

14As to the real issues in the trial, Mr Brett said the following:

“… It really boils down, we would say, to first of all whether there was any instruction given to the plaintiff to ride the hoist to the ground, and not part of the way, and secondly if there was such an instruction given it wasn't enforced.  She would say there was no instruction given.  It was commonplace for people to both climb on the hoist and climb off the hoist when it was above the ground, and not only was that consistent with the limited instruction she had, but it was also the invariable - not invariable, the common practice of her and other workers.”[5]

[5]Transcript (“T”) 11, Lines (“L”) 23 – T12, L1

15In response, Ms Myers, counsel for the defendant, said Ms McKenna had been appropriately instructed and trained in the use of the platform.  She emphasised that the plaintiff had not fallen from the platform, nor tripped from it, but stepped onto uneven ground.[6]  She said that the real cause of the accident was the hazard on the surface of the car park.  Ms Myers said that the plaintiff knew it was necessary to have the platform flat when getting on or off it and there would be evidence she told her manager the next day that she should have lowered the platform completely to the ground.  Additionally, said Ms Myers, the plaintiff was not keeping a proper lookout as to hazards on the surface of the car park prior to stepping off the platform.

[6]T12, L13-23

16Mr Edward Dohrmann, engineer and ergonomist, has provided an extensive report[7] and, for the purpose of this Ruling, I will presume he will give evidence in accordance with that report.

[7]Plaintiff’s Court Book (“PCB”) 63-108

17The defendant takes issue with the admissibility of that evidence.  The defendant submits the whole of the report is inadmissible on three bases.  Firstly, many of the opinions expressed are not relevant to the matters in issue.  Secondly, many of the opinions are outside Mr Dohrmann’s expertise and thirdly, the opinions and conclusions are merely a repetition of the assumed facts with which he was provided.

18In response, Mr Brett conceded all of the matters referred to in paragraph 6 of the report, entitled “The Standards and Guidance Material” were inadmissible, and he did not seek to lead those matters in evidence.  Mr Brett submitted that Mr Dohrmann had appropriate expertise to give an opinion as to whether the system of work was safe.  He emphasised Mr Dohrmann was not only an engineer and ergonomist, but also a safety expert.  He conceded that the particulars of negligence were vague, but that was not unusual in the robust common-law jurisdiction.

19As to the means of injury, he said that Mr Dohrmann had appropriately described how the injury came about as “‘she stepped backwards into this hole, lost balance and fell’”.[8] 

[8]T24, L1-2

20Mr Brett further accepted that in paragraphs 7.1 to 7.13 of the report, Mr Dohrmann did recite the facts with which he had been presented.  He said that the report then made a number of appropriate criticisms of the system of work, at paragraphs 7.16 to 7.20.  These were a matter of appropriate expert opinion.  At paragraph 7.20, Mr Dohrmann referred to the steps the employer ought to have taken to minimise the risk of injury, which, said Mr Brett, was a matter within his expertise as an ergonomist and safety consultant.  He said that the criticisms made on behalf of the defendant were matters appropriate for challenge in cross-examination.

21Mr Dohrmann’s qualifications and experience are set out in his report.  He has an engineering degree.  He holds a post-graduate qualification in ergonomics which he describes as “the science of adapting work processes, environments and products to human abilities and limits”.[9]  He says he has practised in that field since 2007.  His qualification in ergonomics has included a study of biomechanics and anatomy.  He claims to have given opinions in a range of litigation including slips, trips and falls.  He claims to be a “safety advisor and consultant, particularly in the identification of risk and the prevention of occupational injuries”.[10]

[9]        PCB 65

[10]        PCB 65

22Mr Dohrmann received a range of documents and supporting material.[11]  He conducted a video conference with Ms McKenna in July 2021. 

[11]PCB 68-69

23In paragraph 4 of his report, he sets out what he says are “assumed facts”.  This part refers in detail to what he was told occurred at the time of the incident.

24In paragraph 5, he sets out details of his findings when he inspected the area where the incident took place with photographs of vans, both used at the time of the incident, and a van “similar” to that which Ms McKenna claims she drove on the relevant day. 

25It is conceded paragraph 6 is irrelevant.

26Paragraph 7 is headed “discussion and analysis”.

27Paragraphs 7.1 to 7.16 is simply a recitation of what Mr Dohrmann sees as the relevant facts.

28In paragraphs 7.16 and 7.17, Mr Dohrmann states no risk assessment was conducted and if it had been undertaken, the fall risk from the platform would have been identified.  There is no particular expertise brought to bear on this issue.  Whether a risk assessment was undertaken is a matter of fact.  The determination of whether such an assessment would have identified a risk is not a matter which requires any expertise.

29In paragraph 7.18, Mr Dohrmann states that as Ms McKenna had to care for two patients, she said she was rushed.  Again, that is not a matter of expertise.

30In paragraph 7.19, Mr Dohrmann states that information about the risk of falls was widely available to employers.

31In paragraph 7.20, Mr Dohrmann sets out a range of measures which he says were available to the defendant to prevent exposing Ms McKenna to a risk of injury.  These included:

·        By carrying out regular reviews or audits of plant.

·        By conducting a risk assessment.

·        By following Victorian WorkCover reports.

·        By providing better and closer supervision.  In particular, as to the use of the platform.

·        By providing an extra employee to assist.

·        By providing instruction as to the safe operation of the platform, including the need always to ride the platform to the ground.

·        By providing a hoist with an inwardly folding platform which allowed Ms McKenna access to the rear of the bus by ensuring a safety alert document was adhered to.

32In paragraphs 7.22 to 7.32, Mr Dohrmann answered a number of posed questions.  In summary, without any detailed analysis, he concluded the defendant failed to provide a safe system of work, a safe place of work, provided inadequate instructions, supervision, safe plant and equipment, and an adequate risk assessment.

33The law as to the provision of expert opinions is well settled. Section 79 of the Evidence Act 2008 provides that a person may give an expert opinion if he or she has specialised knowledge based upon that person’s training, study or experience.

34In Makita (Australia) v Sprowles,[12] Heydon JA, in a much referred to passage, noted that for expert opinion to be admissible, it must demonstrate that there is a field of “specialised knowledge” in which the witness demonstrates particular training, study or experience and that the opinion proffered must be wholly or substantially based upon that expert knowledge.  His Honour referred to the principals established by Gleeson CJ in HG v R.[13]

[12](2001) 52 NSWLR 705

[13](1999) 197 CLR 414 at paragraphs [39] and [44]

35In Baulch v Lyndoch Warrnambool & Anor,[14] Forrest J, having examined the authorities, distilled a number of principles:

“(a)a party wishing to call an expert witness must clearly identify the field of specialised knowledge in respect of which it is said the witness can proffer an opinion;

(b)a party must then identify the expertise of the witness in that field.  It must be demonstrated that by reason of specialised training, study or experience the witness is truly an expert in that area;

(c)the opinion expressed by the witness must be either wholly or substantially based on that specialist knowledge and not on the everyday knowledge of the common person;

(d)the opinion must be based on clearly identified facts;

(e)the onus rests on the party calling the witness to satisfy the criteria I have just identified.”[15]

[14][2008] VSC 420

[15]At paragraph [14]

36Further, an expert opinion which is no more than a recitation of factual material or observations and which does not apply any scientific reasoning to those facts is not admissible.[16]

[16]Rees v Lumen Christi Primary School [2010] VSC 514 at paragraphs [35], [39]-[40]

37While I do not doubt Mr Dohrmann’s expertise as an engineer and an ergonomist, and even accepting his studies have included some studies in anatomy, I am of the view that his conclusions set out in Part 7 of his report do not bring to bear that expertise upon the issues in the case.  Paragraphs 7.1 to 7.16 is no more than a recitation of facts.  As stated, his view that a risk assessment would have identified a fall risk is not a matter of expertise but of commonsense and general knowledge.  Likewise, the issue of whether an additional employee would have reduced the rush Ms McKenna felt she was under, is not a matter of expertise.  The issue of what publications were available, and whether they were available to the defendant, is, again, not a matter of expertise.

38The only other aspect of his report which could be said to be relevant were the various alternative measures said to be available to the defendant.  Again, none of these conclusions brings any expertise to bear.  They are matters of commonsense, or common knowledge which can be explored in the course of examination or cross-examination of various witnesses.

39In conclusion, I am not satisfied any aspect of Mr Dohrmann’s report brings to bear any particular expertise, training or knowledge to the issues in question in this case.  The whole of the report is inadmissible.

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