Pham v Ronstan International Pty Ltd (Ruling No 1)
[2013] VCC 962
•7 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-01641
| DUC HOANG PHAM | Plaintiff |
| v | |
| RONSTAN INTERNATIONAL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2013 | |
DATE OF RULING: | 7 August 2013 | |
CASE MAY BE CITED AS: | Pham v Ronstan International Pty Ltd (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 962 | |
RULING
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Subject: EVIDENCE
Catchwords: Personal injuries jury trial – evidence – expert evidence – admissibility of evidence of consultant in public health and ergonomist
Legislation Cited: Evidence Act 2008, s76, s79(1), s80; Occupational Health & Safety (Manual Handling) Regulations 1999 and 2004; Manual Handling Code of Practice
Cases Cited:Pritchard v Ardingly Pty Ltd (Unreported, VSC, Kellam J, Ruling 10 October 2003); Makita (Australia) v Sprowles (2001) 52 NSWLR 705; Baulch v Lyndoch Warrnambool & Anor (Ruling No 3) [2008] VSC 420; Rees v Lumen Christi Primary School [2010] VSC 514; Dura(Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99; Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd & Ors [2012] VSC 555
Ruling: Parts of proposed evidence inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F O’Brien SC with Ms M Lang | Ryan Carlisle Thomas |
| For the Defendant | Mr M Titshall QC with Ms L Glass | Hall & Wilcox |
HIS HONOUR:
1 In this proceeding, for trial by judge and jury commencing on 6 August 2013, the plaintiff seeks damages for injury he alleges he sustained in the course of his employment with the defendant over the period from 1 January 2005 to 31 August 2007.
2 According to his Statement of Claim, the plaintiff alleges that as a result of repetitive and arduous work duties, in particular relating to feeding steel into a blanking machine, he suffered injury to his lower spine “resulting in severe discogenic Pain Disorder”, and resultant Adjustment Disorder.
3 Before the jury was empanelled, Mr Titshall, for the defendant, raised objection to various aspects of two reports of an expert witness proposed to be called by the plaintiff, Mr Mark Hennessy, dated 19 September 2012 and 1 August 2013. Mr Titshall submitted that if Mr Hennessy was to give evidence in accordance with the opinions set forth, those opinions were not admissible principally on the bases that they were not expert opinions; alternatively, that the opinions expressed were matters to be determined by the jury without the need for expert evidence.
4 According to his curriculum vitae, Mr Hennessy claims to be a consultant in public health and safety. His academic qualifications include a Bachelor of Science with Honours, a Graduate Diploma in Epidemiology and Biostatistics, and a Master of Public Health. He is a certified ergonomist with the Ergonomics Society of Australia. He is a member of various professional bodies and claims a range of experience in ergonomics, community safety and public health. He claims that he has consulting expertise in anatomy, physiology (including exercise physiology), anthropometry (the dimensions of the human body), physics, biomechanics, ergonomics, epidemiology and biostatistics. His Bachelor of Science degree was obtained with studies in physics and physiology. He claims to have consulted widely in the public and private sector in accident prevention, general health and safety, and specifically in workplace health and safety. He has completed projects for the Victorian WorkCover Authority. He has given expert evidence in court cases and undertaken manual handling risk assessments. He states that he has lectured at various institutions in the areas of public health and safety.
5 For the purposes of this ruling, I will presume that Mr Hennessy will give evidence substantially in accordance with the assumed facts and opinions set forth in his reports. As with any trial, the basis of his opinions will depend upon the evidence given by the plaintiff and other witnesses as to what occurred in the workplace, and the nature and detail of the tasks he was required to undertake.
6 Section 76 of the Evidence Act 2008 provides that an opinion is not admissible in evidence.
7 Section 79(1) provides an exception:
“(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.”
8 Further, s80 provides:
“Evidence of an opinion is not inadmissible only because it is about-
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.”
9 For the purpose of this ruling, I have had regard to the principles established by various authorities, including Pritchard v Ardingly Pty Ltd,[1] Makita (Australia) v Sprowles,[2] Baulch v Lyndoch Warrnambool & Anor (Ruling No 3),[3] Rees v Lumen Christi Primary School,[4] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3)[5] and Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd & Ors.[6]
[1](Unreported, VSC, Kellam J, Ruling 10 October 2003)
[2](2001) 52 NSWLR 705
[3][2008] VSC 420
[4][2010] VSC 514
[5][2012] VSC 99
[6][2012] VSC 555
10 In Pritchard, Kellam J (as he then was) concluded that in an industrial injury trial, it was impermissible for an expert (in that case an engineer) to give an opinion that, based upon assumed facts, there had been a breach of the Occupational Health & Safety Act or the Manual Handling Regulations or the Manual Handling Code of Practice. His Honour said that was a matter for the jury to hear evidence on the matter, for the Regulations and the Code of Practice (if appropriate) to be tendered into evidence and for the jury to determine, after submissions and charge, whether there had been a breach.
11 In this proceeding, the plaintiff alleges a breach of the Occupational Health & Safety (Manual Handling) Regulations 1999 as a particular of negligence, and as a separate statutory cause of action. There is no breach of the associated Code of Practice pleaded. Those Regulations were repealed on the 1 July 2007. Thus part of the period over which they plaintiff claims he suffered injury is not covered by those Regulations. Ms O’Brien indicated the plaintiff may apply for leave to amend his statement of claim to include the 2007 Regulations.
12 I have had regard to the principles referred to by Forrest J in Baulch as follows:
“(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.”[7]
[7]Baulch (supra) at paragraph [14]
13 Further, in Hudspeth, Dixon J set out four “rules” relevantly applicable. They are:
“(a) is the opinion relevant (or of sufficient probative value)[8] (the relevance rule);
(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);
(d) is the opinion to be propounded ‘wholly or substantially based’ on facts assumed or observed that have been, or will be, proved … (the factual basis rules).”[9]
[8]bearing in mind the discretion under s135 of the Act
[9]Hudspeth (supra) at paragraph [7]
14 Counsel for the parties helpfully agreed that certain aspects of Mr Hennessy’s report, if given in evidence, were inadmissible. My ruling relates only in respect of those aspects of the reports which remain in dispute.
15 At the outset I would make general comments as to three areas where the proposed evidence breaches the principles to which I have referred:
(a) Mr Hennessy has no medical qualification. It is not clear the extent to which he has training and expertise in matters medical. As part of his science degree he has undertaken ‘major studies’ in physiology, but there is no detail as to what those studies involved. He claims ‘consulting expertise’ in anatomy, physiology anthropometry and epidemiology, but there is no detail as to what that expertise is or the training and experience involved. Ergonomics is the study of the efficiency of persons in their work environments[10]. I accept the study and practice in that area would involve knowledge of the structure of the human body, in particular the spine, but I have distinct reservations as to whether Mr Hennessy could give evidence that a certain work duty would cause damage to or be a risk of injury to a disc in the spine, This is particularly so in this case as I was advised by Counsel there is no medical nor radiological evidence to the effect the plaintiff has suffered a disc injury such as a bulge or prolapse;
[10]Concise Oxford Dictionary (3rd ed)
(b) In accordance with the principals established in Pritchard[11], to the extent Mr Hennessy purports to give an opinion that, upon the basis of certain assumed facts, there has been a breach of the Manual Handling Regulations or the Code of Practice, either because there has not been a risk assessment undertaken or the work duties constitute ‘hazardous manual handling’ as defined, and therefore the workplace is unsafe, is impermissible. That is a matter for the jury to determine;
[11]Pritchard (supra)
(c) Broad statements that certain work practices are unsafe without any detailed analysis, bringing to bear Mr Hennessy’s particular expertise, as to why that is the case, is impermissible.
I will analyse the various parts of the reports which are contentious.
The first report of Mr Hennessy dated 19 September 2012
(1) Paragraph 7.2
16 The paragraph begins with the phrase “I believe … .”. However, in the course of evidence, Mr Hennessy would presumably say that the paragraph reflected his opinion, rather than belief. The opinion that follows is a statement that the plaintiff’s work duties placed him at risk of injury. The statement is not a matter of expert analysis, but rather a general statement which will be a matter, ultimately, for the jury to determine. Paragraph 7.2 is inadmissible.
(2) Paragraph 7.3
17 Mr Hennessy provides an opinion that the plaintiff’s work duties in various areas caused “gradual weakening of his intervertebral discs, culminating in severe pain and in damage …”. The paragraph is inadmissible for two reasons: As stated, there is no medical opinion to the effect that the plaintiff has suffered an intervertebral disc injury, or any medical evidence to the effect that there has been a “weakening” of the plaintiff’s intervertebral discs. In any event, even accepting Mr Hennessy has some knowledge of anatomy and physiology, the issue of whether work can cause weakening or damage to an intervertebral disc is, in my opinion, within the province of a medical practitioner expert in the area of the spine, intervertebral discs and related structures, such as orthopaedic surgeons or neurosurgeons. Paragraph 7.3 is inadmissible.
(3) Paragraph 7.4
18 Paragraph 7.4 is inadmissible as it states that the plaintiff’s work duties were “hazardous” within the meaning of the Manual Handling Regulations. In accordance with Pritchard, that is a matter to be determined by the jury.
(4) Paragraph 7.5
19 By paragraph 7.5, Mr Hennessy says that in respect of a particular aspect of the work, namely operating the pedal on the blanking press, there was a loading placed upon the plaintiff’s hips and pelvis and lumbosacral spine. This caused a force to be exerted by certain muscles on intervertebral discs which “acted as a fulcrum for the leverage transmitted through the hips and sacrum”. Mr Titshall points out that there is no reference in this paragraph to the regularity with which, nor a precise description as to how the plaintiff operated the pedal. Even if Mr Hennessy had the medical expertise to give the opinion (which I am not satisfied he has), there is no reference to any link between the forces which he says were exerted upon the hip muscles and other structures resulting in injury to the plaintiff’s lower spine. There is no reference to any medical practitioners to substantiate the claim. Paragraph 7.5 is inadmissible.
(5) Paragraph 7.6
20 Ms Lang, for the plaintiff, submitted that paragraph 7.6 ought be read in the context of paragraph 7.5 and was a statement in support of the proposition that the use of foot pedals ought not be undertaken when a worker is standing. However, the reference to the text simply and rather blandly states “that foot pedals not be used for operation of machines by an operator who is standing …”. There is no detail in the paragraph as to how and in what circumstances the foot pedal ought not be used. There is no scientific analysis on the issue. Paragraph 7.6 is inadmissible.
(6) Paragraph 7.7
21 Again, Mr Hennessy makes reference to the “compression of his lumbar intervertebral discs”. He frankly admits that he did not know the weight of the box which was being lifted by the plaintiff such as to cause that compression, and therefore is unable to calculate the risk. The opinion is a medical opinion, and in any event, so vague as to be of no real relevance. Paragraph 7.7 is inadmissable.
(7) Paragraph 7.11
22 The first bullet point is a reference to the Manual Handling Code of Practice. It is a matter for the jury to determine whether there has been a breach without the need for expert evidence.
23 Bullet point 11 refers to the plaintiff as being a person of short stature and light frame and he therefore ought to have been deployed to another area of the factory where the work made lesser physical demands. However, there is no expert analysis of the relationship to the plaintiff’s stature and work duties. If the opinion is no more than a statement that persons with a short stature and light frame cannot do heavier work, then that is a matter within the province of the jury. If not, there is no expert analysis on the issue. The opinion is inadmissible.
(7) Paragraph 8
24 In paragraph 8, Mr Hennessy, sets out his summary and conclusions. For the reasons set forth above, sub-paragraphs (a), (b) and (f) are inadmissible. Sub-paragraph (e) may be admissible if there are alternative duties which can be identified in the body of the report which were available. I reserve whether this part of the report is admissible at this point.
The second report of Mr Hennessy dated 1 August 2013
(1) Paragraph 5.3
25 Mr Titshall contends that the task the subject of the opinion has not been the subject of any medical opinion such as to determine whether it would be a risk of injury. Mr Hennessy has relied upon the accuracy of the history provided by the plaintiff. This part of the report may be admissible, depending upon the evidence given by the plaintiff and others as to the task. Its admissibility will depend upon whether there is expert medical opinion to the effect that the task could cause a risk of injury to the plaintiff.
(2) Paragraph 5.8
26 In that paragraph, Mr Hennessy gives the opinion “It appears to me from the photograph that the task is too high for him to perform comfortably”. The opinion is inadmissible. There is no expert knowledge brought to bear as to why the task is too high for the plaintiff. Further, whether it can be performed “comfortably” or not is not an issue in the proceeding. The issue is whether a task was likely to be a cause of injury to the plaintiff. Paragraph 5.8 is inadmissible.
(3) Paragraph 5.12
27 The simple statement that the plaintiff found the task of carrying bags of raw material up a mobile ladder “difficult” is not a relevant issue. There is no basis upon which Mr Hennessy provides any expertise on the issue. Paragraph 5.12 is inadmissible.
(4) Paragraph 7.3
28 The task of carrying bags of material up a set of steps and into a hopper is said to be a “high risk task” based upon the weight of the bags, their bulk and the period during which the bags were held. However, there is no detailed analysis as to why it was a “high risk task”. There is no definition of what such a task represented. It is uncertain whether that is a reference to the Manual Handling Regulations. There is no expert path of reasoning established by the witness. Paragraph 7.3 is inadmissible.
(5) Paragraph 7.5
29 This paragraph asserts that because of the plaintiff’s relatively short stature and slight build, that he was not particularly strong. There is not necessarily any co-relation between stature, build and strength. In any event, there is no detail as to why the plaintiff had to “worked too hard with too many hazardous manual handling tasks”. Paragraph 7.5 is inadmissible.
(6) Paragraph 7.6
30 This paragraph refers to whether or not manual handling risk assessments have been undertaken. This is a matter for determination by the jury from the evidence, and not a matter of expert opinion.
(7) Paragraph 8
31 The summary and conclusions of Mr Hennessy are set forth in paragraph 8. By reason of the matters referred to above, sub-paragraphs (a), (b), and (f) are inadmissible. Sub-paragraph (e) may be admissible if the report discloses there were alternative ways to carry out the tasks available.
32 I have given consideration as to whether a voir dire ought be conducted and Mr Hennessy give evidence as to his particular knowledge, training and experience and how that bears upon the opinions he has provided. However, there is such a paucity of material from his report to satisfy me that he has the qualification to give the opinions he has given, and the opinions are so flawed for the reasons stated above, that such an investigation would essentially mean his reports would have to be set aside and new reports provided. A voir dire would be of little assistance.
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