Milanovic v Ventura Transit Pty Ltd (Ruling)
[2022] VCC 909
•20 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-04604
| Zlatko Milanovic | Plaintiff |
| v | |
| Ventura Transit Pty Ltd | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2022 | |
DATE OF RULING: | 20 June 2022 | |
CASE MAY BE CITED AS: | Milanovic v Ventura Transit Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 909 | |
RULING
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Subject:EVIDENCE
Catchwords: Admissibility of expert evidence – whether opinion evidence based upon specialised knowledge, training and experience required – plaintiff suffered injury when he fell from bus, while adjusting a side mirror, in the course of work as a bus driver – 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
Cases Cited:Clark v Ryan (1960) 103 CLR 486; Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15 followed.
Judgment: Evidence inadmissible
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr R Paoletti | Zaparas Lawyers |
| For the Defendant | Mr R Middleton QC with Ms F Spencer | Thomson Geer |
HIS HONOUR:
1.When a person is a witness in a trial of a proceeding he or she may not offer an opinion unless his or her evidence falls under an exemption provided by the Evidence Act. The opinions upon which the plaintiff wanted to rely are those expressed in various paragraphs among the two reports prepared by Mr Lewis. The reports are dated 19 May 2021 and 12 January 2022. I will call the first report the Main Report and the second report the Supplementary Report.
2.The plaintiff says Mr Lewis is an expert. That Mr Lewis has specialised experience in a particular field will not alone qualify him as an expert capable of giving evidence at trial. The defendant objects to the whole of Mr Lewis’s two reports.
Principles[1]
[1] See: Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15.
3.The relevant parts of the Evidence Act, beginning with s 55, state:
Relevant evidence
(1) The evidence that is relevant in a proceeding 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.
4.Section 56 states:
Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
5.If evidence is relevant but is evidence of an opinion, the exclusionary rule in s 76 provides:
The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
6.Section 79(1) provides an exception to that exclusionary rule.
Exception–opinions based on specialised knowledge
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.
7.In Dasreef v Hawchar[2] (‘Dasreef’) the majority of the Court stated that when considering opinion evidence, admissibility is to be determined by application of the requirements of the Evidence Act and a two-stage inquiry is required.[3] The first inquiry is why the evidence is relevant. As the majority observed:[4]
Section 76(1)[5] expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact” …. 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.
[2] (2011) 243 CLR 588.
[3] Ibid 604 [37].
[4] Ibid 602 [31].
[5] Of the Evidence Act 1995 (NSW), cf. s 76 of the Evidence Act 2008 (Vic).
8.At the second stage of the inquiry, admissible evidence must satisfy two criteria. The witness must have ‘specialised knowledge based on the person's training, study or experience’. The opinion expressed in evidence by the witness must be ‘wholly or substantially based on that knowledge’. It is ordinarily the case, as Heydon JA said in Makita (Australia) Pty Ltd v Sprowles,[6] 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’.
[6] (2001) 52 NSWLR 705, 743 [85], approved in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 604 [37].
9.In a separate judgment in Dasreef,[7] Heydon J considered the contentions put that the text of s 79 of the Evidence Act rendered the rules developed at common law concerning the admissibility of expert evidence to no longer be useful. Rejecting that contention, in summary, Heydon J explained that the matters that will usually be considered at the second stage of the inquiry - whether the exception under s 79(1) renders opinion evidence admissible - may conveniently be referred to as four ‘rules’ (one of which is in three parts). They are:
(a)is the opinion relevant (or of sufficient probative value[8]);
(b)has the witness properly based 'specialised knowledge' (the expertise rule);
(c)is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule); and
(d)is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):
(i) are the ‘facts’ and ‘assumptions’ on which the expert's opinion is founded disclosed;
(ii) is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
(iii) is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule)?[9]
[7] (2011) 243 CLR 588, 608.
[8] Bearing in mind the discretion under s 135 of the Evidence Act 2008 (Vic).
[9] See also the summary list of considerations identified by Austin J in ASIC v Rich [2005] NSWSC 149
10.Failure by the party tendering expert opinion evidence to comply with the factual basis rules makes that opinion evidence irrelevant. The tendering party must identify and prove, or at least foreshadow the proof of, the facts relied on by the expert to an extent sufficient to persuade the court that the evidence of opinion is relevant under s 55 of the Act. This the plaintiff failed to do and instead foreshadowing that “lay witnesses” would testify to “facts” Mr Lewis assumed proved.
11.The tendering party must identify the fact in issue in the proceeding, the probability of which may be rationally affected by the opinion evidence. If the opinion is irrelevant or lack sufficient probative value, it is inadmissible.
The claim in negligence
12.The plaintiff was a bus driver employed by the defendant. The bus he was allocated to drive on 13 April 2008 was equipped with side mirrors. The mirrors were affixed to arms that were themselves attached to the sides of the bus. The plaintiff said mirrors were often enough misaligned. He often enough needed to adjust the left mirror in particular to accommodate the best and safest viewing angle for him as a driver. On this day he suffered injury when he fell from bus, while adjusting the left side mirror preliminary to commencing on his route.
13.The plaintiff seeks pain and suffering damages and pecuniary loss damages as a result of the alleged negligence of the defendant. The particulars of negligence are:
a) Failing to provide and maintain a safe system of work;
b) Failing to provide and maintain a safe place of work;
c) Failing to provide any, or any adequate, training and/or induction to the Plaintiff in the performance of his duties;
d) Failing to provide any, or any adequate, instruction to the Plaintiff in the performance of his duties;
e) Failing to provide any, or any adequate, supervision to the Plaintiff in the performance of his duties;
f) Failing to provide the Plaintiff with any, or any adequate, assistance in the performance of his duties;
g) Failing to have any, or any adequate, system of work for the inspection and repair/maintenance of its buses;
h) Failing to repair/rectify/adjust the arms on the misaligned mirror on the bus;
i) Allowing the bus to remain in a state where it had a misaligned mirror prior to, and at the commencement of, the Plaintiff’s shift on or about 13 April 2018;
j) Failing adequately, or at all, to have a system of work for the reporting of defects and responses to the reporting of defects;
k) Failing adequately, or at all, to perform an inspection and maintenance/repair of the bus prior to the commencement of the Plaintiff’s shift on or about 13 April 2018;
l) Failing to issue instructions to the Plaintiff to the effect that he was not to attempt to manually readjust mirrors on buses;
m) Failing to issue instructions to the Plaintiff to the effect that he was not to attempt to manually readjust mirrors on buses, in circumstances where there was a practise by drivers of manually adjusting mirrors, and where another driver had previously suffered injury attempting to manually adjust a mirror;
n) Failing to issue instructions to the Plaintiff to the effect that he must report any issues with bus mirrors to maintenance staff;
o) Failing to issue instructions to the Plaintiff to the effect that he must report any issues with bus mirrors to maintenance staff, in circumstances where there was a practise by drivers of manually adjusting mirrors, and where another driver had previously suffered injury attempting to manually adjust a mirror;
p) Requiring the Plaintiff to complete his duties within excessively demanding timeframes;
q) Requiring and/or causing the Plaintiff to undertake work duties which it knew, or ought to have known, were likely to cause injury;
r) Exposing the Plaintiff to a risk of injury which could have been avoided with reasonable care of the part of the Defendant;
s) Failing to conduct any, or any adequate, risk assessments of the work duties that the Plaintiff was required to undertake;
t) Failing to comply with the Occupational Health and Safety Regulations 2017 (Vic), and in particular Regulations 26, 27 and 28;
u) Failing to provide the Plaintiff with a safe platform to stand upon when undertaking a mirror adjustment;
v) Failing to provide the Plaintiff with a tool he could use to perform a mirror adjustment from ground level, such as a boat hook or a long forked pole.
14.A central plank to the plaintiff’s claim is the provision of a safe system of work and the means that the defendant should have provided to bus drivers to have facilitated the repositioning of side mirrors attached on the arm and the hinge to the side of the bus.
15.The defendant’s objections to the whole of Mr Lewis’s two reports is that they are inadmissible on the following bases:
(a)First, the reports largely comprise a recitation of assumed facts, parts of documents and extracts of ‘standards and guidance material’ and not opinion evidence and the ‘standards and guidance’ material section is wholly objected to.
(b)Second, the other parts of the reports are only potentially relevant and admissible if they set out matters which are necessary to understand admissible opinion evidence and/or the basis of admissible opinion evidence.
(c)Third, to the extent that Mr Lewis’s reports contain opinion evidence:
i. The opinions and conclusions are merely a repetition of the assumed facts and/or opinions that are not wholly or substantially based on any particular expertise or specialised knowledge;
ii. Many opinions expressed are not relevant to the matters in issue;
iii. Many of the assumed facts (and hence the conclusions that essentially repeat the assumed facts) are based on hearsay / inadmissible evidence.[10]
[10] Defendant written submissions, [10].
16.In answer to the written objections made by the defendant, Mr Tobin did not seek to defend in a significant way at least, the following parts of the first report: 7.4, 7.5, 7.12, 7.19, 7.25, the second sentence of 7.30, 7.32, 7.33. There were other paragraphs of the report I raised with Mr Tobin in the course of submissions that I said I anticipated would also need to be excised in the event I was not satisfied that the entire report was inadmissible but in the circumstances, and because I have excluded the whole of the reports, I need not separately address these other parts as they are otherwise covered by my ruling.
17.I note, however, that in regard to the report broadly, Mr Tobin contended that Mr Lewis had appropriate expertise to proffer an opinion on whether the defendant had in place a system of work that was safe and to express his opinion of alternative methods that might have been deployed by the defendant and that might reasonably be considered to have reduced the risk of injury to the plaintiff.
18.Mr Tobin argued that it cannot amount to an objection to admissibility that in preparing an expert report Mr Lewis has recited “facts”. To suggest as Mr Tobin perhaps apprehended the defendant’s objection to be, that all Mr Lewis had done was regurgitate facts, is I think, to misapprehend the kernel of the objection.
19.It is axiomatic that an author of an expert report of necessity must set out the facts upon which opinion is based. The marrow of the defendant’s complaint is that under the rubric of “Assumed Facts”, Mr Lewis has adopted and related the contents of information provided to him by the plaintiff in the course of two telephone conferences. Thus his assumed facts contain assumptions and conclusions not in evidence and by which the proof of the same was not identified. I am satisfied that to clothe such a narrative as proved facts would be to prejudice the jury who would have the report.
20.More acutely of course is the objection by the defendant that 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.[11]
[11] See: Rees v Lumen Christi Primary School [2010] VSC 514.
21.Next the defendant asserted that the assumed facts in any event provide no or no sufficient basis to admit of the requirement for the expression of specialised knowledge in a specialised field. To this objection, Mr Tobin was really unable to meet the force of the several arguments propounded by Ms Spencer in oral address.
Analysis and Findings
22.First, there is no fact in issue that the plaintiff seeking to tender the evidence of Mr Lewis can identify that the opinion proves or assists in proving. The fact that the plaintiff was reaching out to try and change the face of the mirror and fell is not a fact in issue that Mr Lewis by his reports proves or assists in proving. Even if this otherwise, I am not satisfied that either report contains a statement of Mr Lewis’s reasoning that demonstrates how his “facts” and “assumptions” relate to the opinion he expresses in order to reveal that his opinions are based on or require specialised knowledge.
23.Second, some of the assumed facts are based on hearsay and is intended to establish a pattern of work conduct or way of doing things that Mr Lewis said drivers generally adopted at the depot and that at times they did so because of being discouraged from reporting issues they could be expected to resolve themselves, “such as mirror adjustment problems.”[12] Even if ultimately proved by admissible evidence these facts do not call for the application of specialised knowledge. A defence to the admission of the reports is not established by asserting as the plaintiff did that lay evidence would be called to prove various matters.
[12] Main Report, paragraph 7.30.
24.The recitation of Guidelines or Standards that Mr Lewis recites in Part 6 of his first report have no work to do in the proceeding. That he copies into this part of his first report extracts from the Occupational Health and Safety Regulations[13], is not something that calls for the application of specialised knowledge or expertise.
[13] Not pleaded in the Statement of Claim but permitted in the Amended Statement of Claim pursuant to order made on.
25.The assertion that the system of work in place at the depot was unsafe because of the account of matters recited by Mr Lewis that I have already mentioned in paragraph 16 above, and because of the non-provision, for example, of a platform to stand on, a boat hook like tool such as Mr Lewis identified, is objectionable. Mr Lewis did not attend the depot, and he conducted no experiment with the use of a boat hook like tool or any other implement to identify their potential ameliorating effect in adjusting a mirror otherwise than by hand, and least of all by applying any scientific analysis or application of specialised knowledge. The fact that Covid restrictions may very well have precluded such an attendance is unfortunate but that fact cannot render inadmissible evidence, admissible. Anyway, that a rod with a hook might have been of assistance or might not have of assistance depends on the mirror and the hinge and the tool, none of which Mr Lewis tested.
26.In that Mr Lewis reported that it was understandable that a driver in a position to resolve a mirror alignment issue without the provision of mechanical assistance would attempt to do so of their volition and in their own way is not an expression of opinion based on specialised knowledge. This type of statement is rife in the first report but exemplified in paragraphs such as 7.33, 7.39 and 7.40 and 7.42.
27.That Mr Lewis said that the plaintiff was an evidently capable and safe bus driver is an irrelevant comment, and it is not an expert opinion any more so, than is the content of paragraph 7.28 of his report, that is in reality reduced to the somewhat banal observation that short drivers would encounter greater difficulty adjusting the mirror than taller drivers.
28.Paragraph 7.41 invokes matters not pleaded in any event.
29.The opinion expressed by Mr Lewis that a “proper” hazard identification and risk assessment required under Occupational Health and Safety Regulations would have identified that some drivers would stand on the step of the bus to adjust an exterior mirror and so would have prompted intervention to eliminate risk or control it is not an expert opinion. Whether a risk assessment was undertaken is a matter of fact and the determination whether such an assessment would have identified a risk is not a matter which requires any expertise.[14]
[14] McKenna v Karingal Inc [2021 VCC 1361
30.Paragraphs 7.45-7.55 is largely repetitive of earlier content.
31.The alternative measures that Mr Lewis said the defendant could have taken to prevent exposing the plaintiff to risk of injury and identified at paragraph 7.42 of his first report are not conclusions that call for bringing to bear any expertise or specialised knowledge but are matters of common sense, or common knowledge the testing of the correctness of such should properly occur in the course of evidence and cross examination of witnesses.
32.The whole of the Supplementary Report is inadmissible as it is no more than a conglomeration of extracts from documents and such commentary as is interspersed by the author is not expert opinion on matters calling for specialised knowledge.
33.It is a relevant fact that the trial of this proceeding is before a jury. In Clark v Ryan[15] Dixon CJ held that an expert is not entitled to give opinion evidence on matters the jury was capable of deciding for themselves.
[15] (1960) 103 CLR 486, 492.
34.Thus for the reasons expressed and based on the principles that have been distilled from case law as applied to the Evidence Act, I am not satisfied that the questions to be considered involves a field of specialised knowledge and thus in the entirety of the two reports are ruled inadmissible and in the exercise of my discretion I see no utility in undertaking a form of triage on some parts of them both so as to salvage bits of them.
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