Morgan v Owners of Strata Plan 13937

[2005] NSWSC 1304

CITATION:	Morgan v Owners of Strata Plan 13937 & anor [2005] NSWSC 1304
HEARING DATE(S):	21-24 November 2005
JUDGMENT DATE :	22 November 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	EVIDENCE - expert evidence - expert "safety consultant" - opinions no more than common sense, or speculation not based on training experience or study - report rejected
PARTIES:	Thomas Patrick Morgan (plaintiff) The Owners Strata Plan No 13937 (first defendant) Dennis Hales Strata Plan Management Pty Limited (second defendant)
FILE NUMBER(S):	SC 020049/03
COUNSEL:	T D F Hughes (plaintiff) A D M Hewitt SC (defendants)
SOLICITORS:	G H Healey & Co - Ashfield (plaintiff) Curwood & Partners (defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Brereton J

Tuesday 22 November 2005

020049/03 Thomas Patrick Morgan v The Owners Strata Plan No 13937 & Another

JUDGMENT – (On tender of expert report; see page 142 of transcript) (ex tempore - revised 21 December 2005)

1 HIS HONOUR: The plaintiff tenders a report of Richard Spencer dated 19 February 2003.

2 Mr Spencer describes himself as a chartered safety professional. He holds the qualifications of Graduate Diploma Applied Science in Occupational Health and Safety which he obtained from the University of Western Sydney in or about 1997, and a Masters in Safety from the same institution which he obtained in about late 1998, as a result of a combination of three years part time course work, and a thesis, which thesis was on the topic of aspects of military safety in war and peace, apparently in a Naval setting. Prior to his interest in safety, Mr Spencer has a background in marine engineering. He is a chartered marine technologist and, in the past, a marine engineer.

3 Part One of his report sets out the information which he has received and perused. Part Two contains some particulars of the plaintiff and Part Three of the defendant. Part Four sets out the substance of an interview which he had with the plaintiff and a conclusion which he drew from the facts elicited. Part Five summarises his understanding of the incident before embarking on a commentary on a report by the defendant's expert, which is not yet and may never be in evidence. Part Six comments on the defendant's expert report, again being a report which is not yet and may never be in evidence.

4 Part Seven, entitled "Engineering Opinion", includes a diagram depicting what are said to be the mechanics of the plaintiff’s fall based on assumptions taken from the plaintiff's instructions. The author proceeds to offer the opinion that the gait of the plaintiff in a forward stumble would have increased significantly as he fought to gain his balance, and "it is suggested" the velocity of his feet would have increased, and that on reaching the rain-wetted area his "smooth soled shoes it is theorised for a split second rode on a layer of water in an aquaplaning effect overcoming the friction value of the floor surface”. The witness says that it is "conceivable" that that effect would have nullified the friction-retarding effect of the shoes on the tiles.

5 Part Eight of the report is entitled "Ergonomic Considerations" and purports to set out why the plaintiff might not have been aware of the presence of the mat and what the defendant should have been aware of having regard to the demands placed on pedestrians in human factor terms. It includes an opinion as to the extent of any contribution made by the plaintiff to the accident, and an opinion that the plaintiff was put at a foreseeable risk of injury and hurt. Part Nine refers to Australian Standards for Residential Pavements. Part Ten refers to factors affecting the difficulty which the plaintiff might have in perceiving the presence of a tripping hazard, and Part Eleven, entitled "Risk Analysis", sets out a number of factors which would contribute to risk in the relevant setting, and concludes with the opinion that the plaintiff would not be expected to have the reflex action or psychomotor or locomotor skills to avoid the fall once he was in two distinct out of balance states. Part Twelve identifies a number of steps which it is suggested that the defendant could have taken to avoid risk; relevantly, none of them appears to involve any particular application of science, knowledge or study. Part Thirteen summarises the witness's conclusions.

6 The fundamental issues in the present case are whether the defendant as occupier was in breach of the duty which it undeniably owed the plaintiff as an entrant by allowing carpet scraps or mats to remain in the premises where they might be used to hold open the secure door and occasion a tripping hazard to entrants or by failing to post warnings about the presence of carpet mats or scraps. Secondly, there is an issue as to exactly how the accident occurred.

7 It does not need an expert to say that stairways and steps pose dangers to people who walk up and down them. It does not need an expert to explain what steps can be taken to reduce that risk. Insofar as the report goes to issues of risk assessment and reasonable response to foreseeable risk, I do not consider that it adds anything to what might be argued without such evidence. The risks associated with stairs and steps are a common everyday matter of human knowledge, as are the precautions which can be taken in respect of them.

8 My mind has been more exercised by whether the opinion of Mr Spencer may assist in explaining the mechanics of the accident in circumstances where it is suggested that the plaintiff's explanation is an implausible one. As I understand Mr Spencer's evidence, he in effect suggests that it is at least a conceivable one. However, that suggestion is based on the passage which I have quoted above, involving a suggestion that the velocity of the plaintiff's foot movement would have increased, and a theorisation that his smooth-soled shoes may have aquaplaned for a split second. I do not read the report, in expressing that opinion, as being based on any particular training, experience, or learning of the witness, but on mere surmise and speculation. It is that surmise and speculation which is the fundamental basis for the opinions which the witness expresses in the area in which his opinion might otherwise have been relevant.

9 In short, his conclusions contained two paragraphs, being the sixth paragraph on page 23 and the third paragraph on page 25 which, were they in fact based on expert training, knowledge and experience, might have been admissible, but as I read his report they are not so based.

10 For those reasons, in my opinion the report adds nothing to the evidence in the case and I reject the tender.

11 This is not intended to preclude the plaintiff from re-tendering so much of Mr Spencer's report as responses to the defendant’s expert report, if the latter is tendered in the defendant’s case. Nor of course does it preclude the plaintiff from using, as arguments, the theories and propositions which Mr Spencer has developed.

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