Salman v Hornsby Shire Council

[2023] NSWDC 506

District Court

New South Wales

Medium Neutral Citation:

Salman v Hornsby Shire Council [2023] NSWDC 506

Hearing dates:

20 - 21 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [67]

Catchwords:

EVIDENCE – expert evidence – case where plaintiff complains of falling after stepping on area in children’s playground – expert states qualification as ergonomist – whether expert qualified to express opinions – whether reasoning process to opinions is disclosed to satisfy requirement that the opinion is substantially based upon specialised knowledge

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW), s 79, 135, 136

Cases Cited:

Bennett v Newcastle City Council (No.1) [2023] NSWDC 225

Lang v R [2023] HCA 29

Category:

Procedural rulings

Parties:

Kathie Beatrice Salman (plaintiff)
Hornsby Shire Council (defendant)

Representation:

Counsel:
E Anderson (plaintiff)
D Ronzani (defendant)

Solicitors:
Gerard Malouf & Partners (plaintiff)
Mills Oakley (defendant)

File Number(s):

2022/00081971

Publication restriction:

Nil

JUDGMENT

Background

1. In this proceeding, the plaintiff, Ms Salman brings an action for damages in negligence after falling on a playground surface at Lessing Park on 28 February 2021. She sues Hornsby Shire Council for what she contends is its responsibility for the care and maintenance of the surface on which she fell.

2. Ms Salman wishes to tender a report by Denis Cauduro dated 10 August 2022. The Council generally objected to the admissibility of the report but also had some more specific objections. His report and curriculum vitae were Exhibit VD1. The report runs to 55 pages (including a single appendix).

Summary of Mr Cauduro’s report

3. Mr Cauduro inspected the place where the accident occurred on 26 June 2022. This was about 15 months after the accident. He indicated that he had interviewed Ms Salmon two days before.

4. In the Executive Summary of his report, Mr Cauduro referred to his experience over the last 35 years as a Project Manager and Supervisor on Building and Construction sites. He spoke of his inspections of ‘thousands’ of workplaces as a safety professional and ergonomist, including, amongst other things, the construction of playground areas and the inspection and maintaining of access and egress ways. He asserted his capacity to comment upon accepted construction practices, on quality control and finishes, on safe (and unsafe) construction practices. He spoke of his capacity to undertake hazard identification and risk assessment processes with respect to construction site health and safety processes.

5. He also identified his specialised knowledge in the fields of ergonomics and safety management including ‘all aspects of physical, cognitive and perceptual capabilities and limitations and of normal human behaviours relevant (amongst other things) to the evaluation of workplaces and other environments to identify potential hazards.

6. In the ‘summary of experience’ contained in his curriculum vitae, Mr Cauduro made the following statements. He had:

• 30 years’ safety experience, including OH&S and WHS systems;

• Over 25 years’ experience of design and construction of building projects, including, but not limited to, pathways and roads.

• A Masters Degree in Ergonomics, Health and Safety from La Trobe University in 2016

• He had completed a ‘Super Safe Certificate Counsel Master Builders 2013’

7. In his current position, apparently running his own firm (Cauduro Worksafe Pty Ltd), Mr Cauduro indicated that he had, amongst other things, conducted engineering and safety assessments of floor surfaces; and conducted Australian standards for stairways and walkways. He indicated that he had provided assessments for ‘slip, trip and fall investigation,’ and ‘slip testing of surfaces’ to Australian Standards.

8. He listed his memberships with the ‘Safety Institute of Australia’ and ‘Human Factors and Ergonomics Society of Australia.’

9. His report was structured into four sections. These were:

1. The information and assumptions used to base his description of the incident and relevant characteristics of the situation (section 2);

2. ‘ergonomic evaluation,’ in which he opined on the probability of physical injuries being sustained in the circumstances (section 3);

3. ‘safety considerations,’ in which he opined upon preventative measures that would have been available to the defendant (section 4);

4. Inferences he drew about causation (based on ergonomic evaluation), foreseeability of injury and preventability (section 5).

10. Section 2 Mr Cauduro’s report is titled ‘The Incident and the Situation’. After referring (at sub-section 2.1) to the plaintiff’s history of the incident, in sub-section 2.2 Mr Cauduro identified ‘relevant characteristics of the situation.’ In this sub-section, Mr Cauduro:

• Commented upon a photograph (1) indicating a height differential between the ‘soft fall material’ and the bark chip area;

• Asserted a lack of compliance of the maintenance and inspection of the playground area with two discrete Australian standards;

• Asserted that the soft pall area and pine bark were not maintained at a level (and taking photographs 3 – 5, inclusive) indicating the slope of the ‘soft fall edge’ within the playground.

• Noted that an email from an information officer in the Council suggested no maintenance records for Lessing Park from 21 March 2019 to 4 June 2021.

11. In section 3, amongst other things, Mr Cauduro opined that Ms Salman’s ‘visual and perceptual concentration’ were directed to the task of walking along the soft fall area. (paragraph 3.2).

12. In section 4, Mr Cauduro cited requirements in AS/NZS 4486: 1 ‘Playgrounds and playground equipment, Part 1 (running to approximate 12 pages). From this, he inferred that the Council did not conduct regular and routine maintenance.

13. Specifically, at paragraph 4.6, he commented upon documents being in the public domain which he considered readily available to the defendant containing detailed information about the identification of potential trip and fall hazards. He opined, specifically, that the defendant ‘should have known about the different surfaces between the soft fall and bark chip area’ prior to the incident. He also opined that had the defendant ‘complied with all the various obligations/recommendations set out in these types of documents, the playground area would have been rendered considerably more safer than it was at the material time.’

14. At paragraph 4.6, Mr Cauduro opined that it should reasonably be expected that the defendant should have known about relevant OH&S legislation.

15. At paragraph 4.7, he opined about the costs of maintaining and repairing the playground surface area.

16. At paragraph 4.8, he opined about what he thought were the defendant’s responsibility for implementing proactive procedures for regularly assessing and replacing potentially hazardous components of infrastructure.

17. At paragraphs 4.9-4.11 he referred to Work Health and Safety Regulations and what they said (in Chapter 3) about identifying risks to health and safety, and the Management of Risk of Fall. Specifically, at 4.17, he opined that if the defendant had acted properly, it would have identified the need to replace the compacted back ship area and maintain it in that condition. At paragraph 4.18, he identified some specific preventative measures that could have been implemented, which he emphasised was not exhaustive. These were: (a) regular inspections of the playground area, topping up of the compacted bark chip area to ensure it was level with the soft fall area; (c) barricading off the swing area until maintenance work was completed and assessed as safe; (d) placing notices that there was a trip and fall hazard.

18. At section 5, Mr Cauduro expressed views about causation, probability/foreseeability and preventability.

The defendant’s objections

19. The Council’s objections were substantially reduced to writing (MFI 5) although they were somewhat elaborated at the hearing by its Counsel. I note that Counsel for the Council did not seek to cross-examine Mr Cauduro on a voir dire.

General objections

20. The Council’s general objections were as follows.

21. First, Mr Cauduro was acting as an advocate for a party. His conclusions were tainted.

22. Secondly, his qualifications were limited and did not extend to expertise in human cognition. Reference was drawn to his sole tertiary qualification being a Master’s Degree in Ergonomics, Health and Safety.

23. To the extent that he referred to ‘human cognition,’ it was suggested that this fell outside the specialised knowledge of an ergonomist and, further, that his opinions were so infected by what he said on that subject as to suggest the whole of his opinions should be rejected. The Council’s Counsel drew my attention to the rejection of Mr Cauduro’s expert opinions in another decision of this Court by Nielson DCJ, being Bennett v Newcastle City Council (No.1) [2023] NSWDC 225 at [5]. In oral argument, Counsel elaborated that Mr Cauduro’s report and curriculum vitae did not demonstrate knowledge in cognitive ergonomics or perceptual ergonomics.

24. Counsel characterised Mr Cauduro as conflating OH&S and Work safety requirements with general requirements (presumably directed) to an occupier of land’s requirements in the common law and under the Civil Liability Act 2002 (NSW).

25. Thirdly, the Council submitted that the opinions did not pass the standard for admissibility under s 79 of the Evidence Act 1995 (NSW) It contained only a set of conclusions without revealing the reasoning process to enable the trier of fact to evaluate them. The conclusions were substantially speculative.

26. If, however, these criticisms were really directed to weight, the Court should exclude the evidence in its discretion under s 135 of the Evidence Act.

27. In opposition to the Council’s objections, the plaintiff’s Counsel argued that Mr Cauduro was qualified.

Ruling on general objections

28. I reject the Council’s submission, at the point of admissibility, that Mr Cauduro has not discharged his responsibility to the Court or acted as an advocate. The submission was no more than one of bare assertion. To the extent that there is force in the Council’s submissions about other aspects of Mr Cauduro’s opinions, that might be one thing. For quite some time now, experts have been permitted to express opinions on what might be called the ‘ultimate issues’ and although it may fairly be said that Mr Cauduro has done this in his report, that does not justify the accusation that he is acting as an advocate for Ms Salman. The situation may change if and when Mr Cauduro is cross-examined, but at this point, this objection has no merit.

29. I further reject the characterisation of Mr Cauduro as being only a builder. That overlooks his learning and practical experience in the field of ergonomics.

30. There is prima facie force in what the Council says about ‘cognitive and perceptual capabilities,’ which is not something that is elaborated. However, I do not accept the sweeping proposition that the entirety of Mr Cauduro’s views and opinions are essentially rendered useless because a failure to articulate what this expression means. Council did not descend to identifying what part or parts of Mr Cauduro’s opinions were infected by this suggested area of expertise.

31. The next general point is one of a failure to disclose the expert’s reasoning process, what might colloquially be known as the ‘Makita’ objection. This objection has potentially greater force.

32. This particular objection, and the principles relating to expert opinion evidence more generally, was considered recently by the High Court in Lang v R [2023] HCA 29 where, although the High Court closely divided on the result, the principles were essentially agreed to. At [11], in the joint judgment of Kiefel CJ and Gageler J (as the Chief Justice then was) observed that one principle for the admissibility for expert opinion evidence is that “the inference drawn by the expert which constitutes the opinion be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed”. This principle applies as much to the common law as it does to s 79 of the Evidence Act. The other member of the majority, Jagot J (at [434]) said, with reference to earlier authority, that what is required for admissibility of expert opinion is that expert evidence "must be presented in a way that makes it possible for a court to determine that it is [substantially] based" on the person's training, study, or experience.

33. At [13], Kiefel CJ and Gageler J observed that “(r)easoning sufficient to demonstrate that the opinion formed by an expert is the product of the application of his or her specialised knowledge need not be limited to formal induction or deduction. Speculation, however, is not reasoning. Nor is intuition.’

34. As to how much a professional might be expected to disclose to establish a transparent link between expertise and the application of specialised knowledge, at [433], Jagot J said:

“Much will depend on the field of expertise and the nature of the opinion given. Accordingly, in Dasreef Pty Ltd v Hawchar, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that, for example, "a specialist medical practitioner expressing a diagnostic opinion in [their] relevant field of specialisation is applying 'specialised knowledge' based on [their] 'training, study or experience', being an opinion 'wholly or substantially based' on that 'specialised knowledge', will require little explicit articulation or amplification once the witness has described [their] qualifications and experience, and has identified the subject matter about which the opinion is proffered".

35. At [15], Kiefel CJ and Gageler J remarked upon “the distinction ….. between … whether a process of reasoning engaged in by an expert is sufficient to demonstrate that his or her opinion is the product of the application of specialised knowledge and the question of the extent to which a process of reasoning engaged in by an expert through the application of specialised knowledge is clear and convincing. Both questions can be described as going to the utility or value of the opinion.”

36. As all of the judges constituting the majority indicated, admissibility of expert opinion is not be considered against assumptions that: (a) the opinions are solely based upon the application of specialised knowledge or (b) that the opinions are themselves justified (Kiefel CJ and Gageler J at [12] & [16]; Jagot J at [435]-[436]). These observations have particular salience when addressing Council’s specific objections to the evidence later in these reasons.

37. At [17], Kiefel CJ and Gageler J explained that the cogency of reasoning of an expert is not just a matter for weight. It can also relate to admissibility, but only in so far as the degree of cogency of the reasoning bears on the extent to which the resultant opinion has the potential to assist the tribunal of fact in drawing requisite inferences and further, can affect any ‘calculus’ a Court is required to undertake if and when it be suggested (as it is in this case) that the probative value of the evidence is outweighed by its prejudicial effect.

38. Mr Cauduro’s asserted field of expertise - ergonomics – was in my view an area that was capable of assisting the resolution of a central issue in the case: whether at the area in the playground that Ms Salman stepped on, the surface, or mix of surfaces, was safe for persons in Ms Salman’s position to be on.

39. Did Mr Cauduro expose reasoning demonstrating that he applied his specialised knowledge in a way that led to the formation of his opinions?

40. I do not accept the Council’s criticism that Mr Cauduro’s resort to OH & S or work safety requirements was irrelevant or in some way was so conflated with his other opinions as to render those opinions incompatible. To so reason is to presume or proceed upon the unarticulated and unproven premise that OH&S or work safety requirements are incompatible or conflict with the standards an occupier of land (or an entity responsible for its condition) should reasonably be required to adhere to in order to prevent safety or hazardous risks to entrants upon that land. That is not to say, however, that such conflation may not reduce the weight of his opinions, which is a matter that will need to be considered in the light of all of the evidence. But I do not think that it renders inadmissible the opinion under s 79.

41. Nor, in that particular respect, do I think this part of Mr Cauduro’s reasoning means that the opinions should be excluded under s 135 of the Evidence Act. This is not a case of trial by jury and, informed, as I expect I will be by reasoned submissions of the parties, do not regard myself as likely to misuse Mr Cauduro’s opinions.

42. Mr Cauduro’s opinions are fairly to be read as a whole. As indicated in the executive summary, they are structured with reference to a combination of discrete topics.

43. Reading his opinion, as a whole, in my view, at the risk of over-simplification, Mr Cauduro has exposed certain basic premises leading to opinions expressed in section 5 of his report:

1. there was a height differential between the soft fall material and the bark chip area (section 2);

2. there had been no maintenance in the park in the lead up to the accident after 20 March 2019;

3. there are Australian Standards in place (1997) for the maintenance of playgrounds and playground areas (section 4)

4. an entity (ie Council) in the Council’s position (as a ‘controller of a site’) would be expected to know of OH&S legislation and Workplace Health and Safety legislation and regulations.

5. Council would have had a process for identifying risks and hazards

44. I reiterate that this statement of premises is hardly exhaustive. But it is sufficient statement to address the general challenge that Mr Cauduro’s reasoning process for conclusions (essentially stated in section 5 of his report, but inferentially also 4.16-4.18) is not disclosed.

45. Many of these premises may be contentious. Some may ultimately be found to be wrong. But for present purposes, what counts is that they are identified.

46. I reject the Council’s generalised objections to Mr Cauduro’s report.

47. As to s 135, as I have to an extent already suggested, Council’s recourse to that provision is itself at such a generalised nature as to preclude its acceptance.

48. I now address Council’s specific objections.

Specific objections

Section 2

49. The Council argues that the ‘histories and material including the photographs relied upon’ are not admissible as to the truth. I infer from this that the substantive limitation is a reference to the matters in section 2 of the report – it could not properly be suggested that, say, the content of the Australian Standards in paragraph 4.2 of the report and following, which apparently would fall part of the ‘material’ that Mr Cauduro report, or the content of legislation or regulations that he relied upon, should not be regarded for the truth of what is asserted. The same goes for the expert’s reliance upon correspondence from the Council dated 8 July 2021 (which is a business record).

50. It is notorious that histories provided by clients to expert professionals (typically medical professionals to provide a basis or assumptions (can be admitted for a hearsay purpose under s 60 of the Evidence Act (eg Guthrie v Spence (2009) 78 NSWLR 225 per Campbell JA (Basten JA and Handley AJA agreeing) at [75]) and in my view the evidence would be admissible under the provision. The real question to my mind is whether there should be a limitation on the evidence under s 136 of the Evidence Act.

51. I accept that such limitation should be imposed upon subsection 2.1.

49. Section 2 provides a mix of evidence. To some extent, paragraphs within the subsection of the report represent instructions provided to Mr Cauduro by Ms Salman and/or her solicitors (eg paragraphs 2.1.1 – 2.1.7). In relation to the matters in those paragraphs, whilst there might not have been complete alignment between what is contained in those paragraphs and the evidence that Ms Salman eventually gave in her evidence in Court, there is substantial similarity. Counsel for the Council had opportunity to cross-examine Ms Salman on prior statements and indeed utilised that opportunity to cross-examine her on what she told some of the medical professionals. I do not consider that a limitation should be placed on this particular evidence.

50. Paragraph 2.2.1 merely puts into words what might otherwise be seen in photographs 1 and 2. There is no reason for a limitation upon the admissibility of that paragraph.

51. Paragraph 2.2.2 is an opinion based on matters that are referred to elsewhere in the report: Mr Cauduro referred to an email from the Council (at paragraph 2.2.7) and Australian Standards at paragraphs 4.2 and 4.3.

52. Paragraphs 2.2.3 and 2.2.4 may be regarded as assumptions about matters about which, I perceive are not disputed. There is no need for a limitation in either rrespect.

53. Paragraphs 2.2.6 and 2.2.7 are plainly instructions, but they are based upon documents identified which would be admissible as business records. There is no need for a limitation on those paragraphs.

54. There is other direct evidence that the expert is entitled to give. This includes what appears in paragraph 2.2.5 as well as the photographs numbered 1-5 (incl). This evidence is evidence for the truth of what is asserted – the condition of the playground on the date that the photos were taken, which might be capable of proving the condition of the playground, and the underlying surfaces, on the date of the accident.

Section 3

58. The Council submits that the content of this section falls outside Mr Cauduro’s expertise and he is not qualified to opine on matters requiring medical diagnosis or causation matters.

59. I agree that paragraphs 3.1 and 3.4 fall outside Mr Cauduro’s expertise and, alternatively, he does not articulate how his specialised knowledge has been applied to express the conclusion. I agree with the Council that Mr Cauduro has no entitlement to express views appropriate for medical practitioners.

60. The assertion at paragraph 3.5 that Mr Cauduro has experience in ergonomics permits him to comment on physical injury causation may be correct so far as it goes, leaving aside its self-serving nature. But what is missing here is articulation of reasoning to connect the field of speciality with the asserted conclusion. By physical injury, I sense that Mr Cauduro is distinguishing the physical element of causation from the scope of liability element. But causation is a mixed legal conclusion of fact and/or law. Clearly ergonomists are not experts on everything connected with slip and fall accidents on surfaces and by these paragraphs. In my view, Mr Cauduro here is impermissibly seeking to arrogate to an expert a factual conclusion to be reached by the tribunal of fact, without exposition. The paragraphs are inadmissible.

61. In my opinion, with respect to paragraphs 3.2 and 3.3, similarly, it is not demonstrated how an ergonomist is qualified to opine on this plaintiff’s (or any other person’s) visual and perceptual concentration or upon the plaintiff’s assumed failure to notice something was relevant to her own protection of her own interests; the latter being another question of mixed fact and law. Those paragraphs are also inadmissible.

62. The Council’s objection to section 4 is rejected. I have touched on this earlier. Mr Cauduro’s field of expertise, as an ergonomist, qualifies him to opine on the safety of surfaces in a playground.

63. Specifically, the content of paragraph 4.1 is not speculative but, I am satisfied, is substantially based upon his specialised knowledge. This part of his evidence demonstrates the point adverted to by the High Court recently in Lang that not everything that an expert says needs to be the result of an application of specialised knowledge. The objection to 4.1 is overruled.

64. The Council’s objection to paragraphs 4.2 and 4.3 amounts, in substance, to the contention that Mr Cauduro’s evidence is wrong; by reason of his failure to consider other facts. This is demonstration of another point of the High Court in Lang the admissibility of expert evidence is not conditioned upon the impugned opinion being incorrect. The objections to those paragraphs are also overruled.

65. The balance of the Council’s objections to section 4 unhelpfully do not refer to paragraphs. To the extent that criticism is made of Mr Cauduro’s evaluative descriptions ‘reasonable,’ or ‘obvious,’ as betokening a lack of reasoning, this again is rejected. For this objection to be seriously considered and weighed, it was incumbent upon the Council to identify the substance of the evidence. It is not for the Court to figure it out for itself. The stated objections to paragraph 4 are overruled.

66. The Council’s objections to section 5 of Mr Cauduro’s report are centred upon the contention that the expert’s opinions are fundamentally flawed in that they are wrongly predicated upon the basis that the NSW Work, Health and Safety legislation affects a duty (if owed) of a local authority for a park. This again, is the same objection as that which applied to paragraphs 4.2 and 4.3 which I addressed before: namely, that because an opinion, or assumption underlying it is wrong, the evidence itself is inadmissible. That objection meets the same fate as the objections to paragraphs 4.2 and 4.3.

Conclusion

67. My conclusions are:

1. Section 3 of Mr Cauduro’s report (encompassing paragraphs 3.1-3.5) are inadmissible.

2. The balance of Mr Cauduro’s report is otherwise admissible.

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Decision last updated: 21 November 2023