Surmon v Herald and Weekly Times (Ruling No 1)
[2011] VSC 606
•14 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2010 02221
| KIM SURMON | Plaintiff |
| V | |
| HERALD & WEEKLY TIMES | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2011 | |
DATE OF RULING: | 14 November 2011 | |
CASE MAY BE CITED AS: | Surmon v Herald & Weekly Times (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 606 | |
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EVIDENCE – Opinion evidence of ergonomist – Risks of repetitive cutting with knife – Whether substantially based on a body of specialised knowledge – Whether unfairly prejudicial or misleading or confusing – Evidence Act 2008 (Vic) ss 79(1), 135.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC and Mr M Walsh | Clarke Toop & Taylor |
| For the Defendant | Mr R Stanley QC and Ms M Britbart | Minter Ellison |
HIS HONOUR:
The plaintiff claims damages for injuries which she sustained in the course of her employment with the defendant while performing duties as the finance librarian at the defendant’s Southbank premises between January 2003 and May 2009. She intends to call Mr Mark Hennessy, an ergonomist, to give evidence in support of her case. That evidence will be based on the contents of two reports prepared by Mr Hennessy dated 23 December 2010 and 1 August 2011, which have been served on the defendant. The defendant objects to the foreshadowed evidence of Mr Hennessy which is set out in those reports.
The plaintiff’s duties, while working as a finance librarian with the defendant, involved her each day cutting out articles relating to the top financial companies from four newspapers and placing them into files in the defendant’s library. For that purpose she was provided with four copies of each of The Herald Sun, The Age, The Australian and The Australian Financial Review. Each day the plaintiff’s task was to read each of those newspapers, and to mark the relevant articles with the source and the date, using a felt-tipped red Texta pen for that purpose. She would then cut each of the 16 newspapers down the middle with a Stanley knife in order to split the newspapers in half. Having done that, she would cut out the articles using the Stanley knife. She estimates that each day she cut out between 100 and 150 articles, and that that process took her about two hours.
Having completed that task, the plaintiff would paste the articles onto boards, convey them using a trolley to the library and place them into the large manila folders which are stored in the library. In addition to that task, in the afternoon, after the close of the stock market, the plaintiff was required to extract information concerning the stock and financial markets and to compile a daily stock wrap. In performing that task, she hand wrote the information which she sourced onto two sides of A4 paper. She would then input that information into a computer. She states that she had to perform that task under some pressure of time, because it was necessary to meet the deadlines for publication of the newspaper.
In the middle of 2003, the plaintiff commenced to experience some problems holding and using the pen. She consulted Dr Knight, the company doctor with the defendant, in September 2003. In due course he referred the plaintiff to Dr Isla Williams, a neurologist who made a differential diagnosis of dystonia. She in turn referred the plaintiff to Dr Richard Peppard, a neurologist with some specialty in that condition and the plaintiff saw Dr Peppard in February 2004. He confirmed the diagnosis of dystonia and commenced treating her by a course of Botox injections. On 23 March 2004, the plaintiff lodged a claim with the defendant. However, her work duties continued as before.
Shortly thereafter, the office manager, Ms Debbie Baron, who was in fact the plaintiff’s sister, provided the plaintiff with stamps by which she could record the source and date of the articles without handwriting them on the articles. The plaintiff’s problems nonetheless increased and progressed, and she commenced to suffer from pain, cramp and tremors of the right hand and arm which progressively got worse. In November 2007, she consulted Dr Sleigh, who had replaced Dr Knight as the company doctor. He modified her work station in early 2008, and ultimately, in June 2008, he directed that the plaintiff take two weeks off work. When she returned to work two weeks later, she was placed on limited duties, and she remained on those duties until she was made redundant in May 2009.
The plaintiff brings these proceedings in relation to injuries to her right hand and arm, which includes the contraction of focal dystonia of the right hand and fingers, pain to the right hand, arm and fingers, tremor, anxiety and depression. The plaintiff’s claim against the defendant is based in negligence and breach of statutory duty. As opened, it includes allegations that the defendant failed to carry out any risk assessment of the plaintiff’s duties, it failed to rotate her duties, it failed to supervise the plaintiff in the performance of her duties, it failed to provide any proper instruction to her and it failed to alter the plaintiff’s work method after she had reported to the defendant that she was suffering problems.
As I stated, Mr Hennessy has provided two reports. The second report of 1 August 2011 was provided after Mr Hennessy had the opportunity to visit the worksite, and in that report he confirmed the views which he expressed in his earlier report. For the purposes of the argument which was presented before me, it is I think most convenient to concentrate on the contents of the first report, and then where necessary to give appropriate rulings relating to the second report.
In his first report, Mr Hennessy has set out his qualifications in paragraph 1, and I shall not repeat them at length, other than to summarise them as follows. Mr Hennessy has a Bachelor of Science with honours, a graduate degree in epidemiology and biostatistics, and a Master of Public Health, and he is accredited by the Human Factors and Ergonomic Society of Australia as a certified professional ergonomist.
His work as a consultant covers the field known as public health, specialising in injury prevention and ergonomics, mainly aimed at promoting health and safety, and preventing injuries. He said that his expertise as an applied scientist practising public health and safety comprises two main facets. At times he operates as a technical consultant, and other times as a process consultant. As a technical consultant, he gathers information, analyses it and provides opinions based on the data available to him. His technical consulting expertise includes expertise in the fields of scientific knowledge including anatomy, physiology, anthropometry, which apparently is the dimensions of the human body, biomechanics, ergonomics, epidemiology, and biostatistics.
The main fields of human activity to which he applies that knowledge include to workplace safety, and to other areas involving issues relating to safety of persons. He says that his process consulting role comprises working with organisations and individuals to assess risks they face, and to facilitate change to reduce the risks. He does that through analysis, strategic planning, program development, and implementation, education, and training.
In paragraph 4 of his report Mr Hennessy sets out, in a number of sub-paragraphs, the assumed facts on which he bases his opinion, and I shall return to them in due course. In paragraph 6 of the report, he sets out the relevant provisions of the Occupational Health and Safety (Manual Handling) Regulations 1999, and refers to the Victorian Code of Manual Handling for 2000. In it he also expresses the view that those regulations, and that that code, applied to the work performed by the plaintiff.
Mr Hennessy’s opinions are mainly set out in paragraph 7 of his report. In paragraph 7.2, he expresses the view that he considered that the plaintiff was placed at risk of injury in the circumstances described, and I shall return to that paragraph shortly. In paragraphs 7.3 to paragraphs 7.10 he expresses the view that the handwriting and use of the knife by the plaintiff in the course of her duties with the defendant caused her to suffer from her injury. In paragraphs 7.11 and paragraph 7.12 he notes that the defendant did not carry out any inspection or risk assessment of the plaintiff’s work.
In paragraph 7.13 he expresses views relating to the information available generally to Victorian employees at that time, relating to the risks of musculoskeletal strain injury, and he also purports to comment on the knowledge which the defendant itself had of the plaintiff’s condition. In paragraph 7.14 he then sets out 16 measures which he says that the defendant could have taken to prevent exposing the plaintiff to the risk, which I have assumed to be the risk which he has identified in paragraph 7.2 of his report. Mr Hennessy then summarises his conclusions in paragraphs 8.1 to 8.5.
Ms M Britbart, who appears with Mr R Stanley QC, objected to the admissibility of the whole of Mr Hennessy’s two reports. In the course of submissions and discussions with counsel, Mr J Richards SC, who appears with Mr M Walsh of the plaintiff, correctly conceded that a number of sections of the first report of Mr Hennessy are not admissible, and he would not press them. I agree with the concessions made by Mr Richards in that respect. As a result, Mr Richards conceded, and I accept, that the whole of paragraph 6 will not be led in evidence through Mr Hennessy. Secondly, he has correctly conceded that paragraphs 7.3 to 7.10 will not be led through Mr Hennessy. Those sections of the report are the expression by Mr Hennessy of an opinion that the work which the plaintiff was performing caused her injury. That is a matter for medical science, and not for someone with Mr Hennessy’s qualifications.
Paragraphs 7.11 and 7.12 will not be pressed, they are indeed statements of second hand fact by Mr Hennessy, and are not expressions of opinion, and they will be excluded. Mr Richards also accepts that the last three sentences of paragraph 7.13 will not be led, as they purport to be expressions of opinion by Mr Hennessy as to the knowledge which the defendant had, and that is not a matter which could sensibly be said to be admissible under s 79(1) of the Evidence Act. Those concessions would mean that the opinions expressed by Mr Hennessy in paragraphs 8.1 to 8.3 of his report would thus not be lead and would be properly excluded. The main matters, therefore, which are left in contention are paragraphs 7.2 and 7.14 of Mr Hennessy’s first report.
Ms Britbart objected to those matters. In support of her objection, she made three principal submissions as to why the matters set out in those two paragraphs ought not be admitted into evidence. First, she submitted that the assumed facts, on which Mr Hennessey based his opinion, are not supported by the evidence which has been led in this case, and that therefore the expressions of opinion by Mr Hennessy in those paragraphs are irrelevant. Secondly, she submitted that Mr Hennessy has not properly demonstrated the process of reasoning as an expert by which he has reached the conclusions stated in those parts of his report, and therefore she submitted that it is not possible to determine whether the opinions, so expressed by Mr Hennessy, are substantially or wholly based on the specialised knowledge of Mr Hennessy. Thirdly, she submitted that, in any event, those parts of the report should be excluded and exercise my discretion under s 135 of the Evidence Act 2008.
For the purpose of determining those objections, and in particular the second objection so made by Ms Britbart, a voir dire was conducted and Mr Hennessy gave short evidence in relation to that matter. I shall return to that evidence shortly.
I turn however, firstly, to the submissions made by Ms Britbart in relation to the assumed facts on which Mr Hennessy based his opinion. Ms Britbart pointed to a number of differences between the evidence which has been adduced in this case, particularly from the plaintiff, Ms Kim Surmon, and the matters set out in the statement of assumed facts, and she submitted that those differences are significant and that they lead to the conclusion that any expression of opinion by Mr Hennessy in this case is irrelevant.
In particular, Ms Britbart pointed to matters contained in the first report in paragraphs 4.6, 4.7, 4.9, 4.16 and 7.11 and in the second report also to matters in paragraph 7.5 and 7.6 I turn to each of those maters very briefly.
First, in relation to the first report, paragraph 4.6, Mr Hennessy, in the first sentence, stated that the plaintiff told him that she did the work of cutting out the articles from the newspaper for two to three years on her own. Indeed, that is not the case, because the evidence reveals that at least at the commencement of the time at which she performed those duties the plaintiff did have available casual employees two or three times a week for three to four hours on each occasion. She said in her evidence that the availability of those casual employees diminished over a two year period and by the end of two years she did not have any further assistance.
In my view, while that matter is relevant it does not render of itself the matters stated by Mr Hennessy to be irrelevant. Much will of course depend upon the assessment by Mr Hennessy of the relevance of the availability of the assistance. However, it could not be said that that factor is so determinative as to render the opinion expressed to be irrelevant.
Ms Britbart then pointed to the second sentence in paragraph 4.6 where the plaintiff stated that the work was highly repetitive. Ms Britbart challenged that description, based on the description given of the evidence by the plaintiff in her evidence. In my view, that is very much a matter for the jury to determine whether they accept the description of the task given by the plaintiff to Mr Hennessy and also as to the extent to which that description might differ from the jury’s perception of Ms Surmon’s work in her evidence.
In paragraph 4.7, Mr Hennessy states that he was informed that the plaintiff wrote with a normal ball point pen. In fact that is not the case. The plaintiff performed that duty using a felt Texta pen. That difference may well affect the fifth recommendation contained in paragraph 7.14. I do not think that it renders the opinion expressed otherwise to be irrelevant, but no doubt the defendant will be able to make fertile use of that matter in cross-examination, were I to admit this evidence.
Mr Hennessy also records that the plaintiff held the Stanley knife in what he described as a pincer grip which the plaintiff demonstrated to him. In fact, the photograph, which is contained in the second report, demonstrates a grip which may not in ordinary parlance be understood to be a pincer grip. However, it is relevant that it was Mr Dohrmann who took that photograph, and in his second report he stated that the grip, demonstrated and photographed, did not alter the facts which he recorded in his first report. So, the use by Mr Hennessy of the word “pincer grip” is perhaps somewhat ambiguous and may again be a matter for cross-examination, but does not, it seems to me, point to anything radically different between the evidence in this case and the assumed facts.
The next matter pointed to by Ms Britbart was in paragraph 4.9 because again Mr Hennessy refers to the use of the pincer grip, and again I make the same comments in relation to that.
In paragraph 4.16, Mr Hennessy records that the plaintiff stated that, after some time, she was having difficulty holding the Stanley knife and also turning over the pages of the newspaper. That is not supported by the evidence. However, it is not clear to the extent to which that fact alone affected the conclusions drawn by Mr Hennessy in his report. The matter was not explored in cross-examination in the voir dire, and I understand that there would be very good tactical reasons not to do so. However, it is not clear from the evidence, and particularly from the report, that that matter necessarily would affect the conclusions drawn by Mr Hennessy.
Turning to the second report, in paragraph 7.5, Mr Hennessy noted that the plaintiff’s condition was diagnosed within a month of her commencing duties in the business section. That, in fact, is not so, it was about eight months later, but I do not understand that factor to be particularly salient. Paragraph 7.5 also says about a year after she began to suffer symptoms, she was provided with a rubber stamp to reduce the amount of handwriting; indeed, it was a shorter time than that, but again I do not consider that difference to be sufficiently salient to alter the validity of the opinions expressed. In paragraph 7.6 Mr Hennessy records that no worksite inspection or risk assessment was carried out until many years later, when Dr Sleigh carried it out. In fact, Dr Knight did briefly inspect the plaintiff’s work premises and advised her to use her left hand when transferring the articles to the folders in the library. However, that does seem to me to be particularly relevant, because amongst the matters already excluded are the expressions of opinion by Mr Hennessy as to what was or was not in the knowledge of the defendant.
The only parts of his report which remain at this stage, subject to my ruling, are Mr Hennessy’ identification of the risks and his statement of the steps which were available to the defendant to avoid or alleviate those risks. Looking at all those differences together, in my view there is nothing about the differences between the assumed facts and the evidence which would compel a conclusion that the opinions expressed by Mr Hennessy on those matters must necessarily be different, if the opinions were based on the evidence and not on the assumed facts. In my view, each of the differences involve matters of degree of varying important, and I am not persuaded that the differences between the assumed facts and the evidence is such that the expert is necessarily expressing an opinion which is not relevant to the case.
It is not uncommon for there to be differences between assumed facts on which experts have relied and the evidence. Generally, those differences are matters for the trier of the fact. That is, in this case, the jury.
I would apprehend that there must be something radically or manifestly different between the evidence and the assumed facts in order to entitle, a judge in the position which I am, to rule that, because of those differences, the expression of opinion contained in the report is irrelevant to the case. I am not of that opinion in this case.
I turn, then, to the second submission made by Ms Britbart on behalf of the defendant. That objection was directed to the views expressed by Mr Dohrmann in paragraph 7.2 of his first report, relating to the risk of injury which he believed the plaintiff was exposed to. He expressed his views in the following terms:
“I believe that Ms Surmon was placed at risk of injury in the circumstances described. The basis of the reasoning process leading to that concluded opinion consists in the frequent and repetitive fine motor tasks that she performed using a pincer grip with her right hand, including writing on newspaper articles with a pen and cutting out those articles using a Stanley knife with a similar grip to a pen”.
It was those risks, as I understand it, that Mr Hennessy then purports to address by the steps, which he says ought to have been taken by the defendant, and which he sets out in paragraph 7.14 of his first report.
Ms Britbart, who presented a thorough and persuasive submission in support of her objections, pointed out that, under s 79(1) of the Evidence Act, the evidence of Mr Hennessy as to the matters contained in paragraph 7.2 and thus in paragraph 7.14 is only admissible, if the opinions stated by him are wholly or substantially based on Mr Hennessy’s specialised knowledge as an expert. She submitted that Mr Hennessy had not demonstrated in the report, or in the evidence on the voir dire, that the opinions contained in paragraph 7.2 and in 7.14 are wholly, or substantially, based on his specialised knowledge. In particular, she submitted that Mr Hennessy had not sufficiently disclosed the path of reasoning, by which he reached the conclusions expressed in those parts of his report, in order to demonstrate that those conclusions are based on his relevant field of expertise.
The relevant legal principles are based on the Evidence Act 2008. Section 56(1) of the Act provides that evidence, that is relevant in a proceeding is admissible in the proceeding, except as otherwise provided by the Act.
Section 55(1) provides the definition of relevance, namely:
“Evidence that is relevant in a proceeding is evidence that if it were accepted could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.”
Obviously, the expressions of opinion by Mr Hennessy are relevant to the issues in the case. The question then is whether they are excluded by any other provision in the Act. The provisions relating to expert evidence and opinion evidence are contained in Part 3.3 of the Act. Section 76 states that:
“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”
That rule is very similar to the common law rule. Section 79(1) then provides the exception to what is described as the opinion rule in s 76, namely:
“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.”
It can thus be seen that, under s 79(1), there are two principal preconditions to the admission into evidence of an opinion which purports to be expressed by an expert. In order to be admissible, first, the witness must have specialised knowledge based on training, study or experience, and, secondly, and importantly, the opinion which is sought to be adduced must be based wholly or substantially on that specialised knowledge. Thus, in order that opinion evidence be admissible, it must be demonstrated that the opinion to be expressed is based wholly or substantially on the specialised knowledge of the expert witness who is to be called.
The importance of that latter requirement has been emphasised by the High Court and by the Court of Appeal of New South Wales. In particular I refer to Makita Australia Pty Ltd v Sprowles[1], HG v R[2] and Dasreef Pty Ltd v Hawchar.[3] In HG v R, Gleeson CJ[4] emphasised the importance of that second requirement in s 79 in the following terms:
“In trials before judges alone as well as in trials by jury it is important that the opinions of expert witnesses be confined in accordance with s 79 to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely their own inference of fact) outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority and legitimate processes of fact finding may be subverted.”
[1](2001) 52 NSWLR 705.
[2](1999) 197 CLR 414.
[3][2011] HCA 21.
[4]At 427, [44].
Similar views were expressed by the plurality in Dasreef Pty Ltd v Hawchar. In that case, the plaintiff had suffered silicosis which he claimed to be due to the exposure to silica dust in his place of employment. On appeal, the issue related to the use by the trial judge of evidence by an expert, who had observed, in the course of his evidence, that the plaintiff would have been exposed to a considerable proportion of the dust at the defendant’s premises. The expert himself disavowed any expertise in calculating the levels of dust to which a person might be exposed.
The High Court held that the evidence was not admissible. The court referred[5] to the judgment of Gleeson CJ in HG, and stated:
“It remains useful to record that it is ordinarily the case, as Justice of Appeal Hayden said in Makita, 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.”
[5]Paragraph [37].
The plurality then went on to observe[6] that a failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge, is a matter which goes to the admissibility of the evidence.
[6]Paragraph [42].
Based on those principles, I turn to the evidence which was adduced in this case in support of the matters stated by Mr Hennessy in paragraph 7.2 of his report.
Mr Hennessy repeated and expanded on his expertise, at p 294 of the transcript in the voir dire, and, in particular, he stated that part of his role, involving ergonomics knowledge and knowledge of the human body and causation and biomechanics, involved him identifying risks in workplaces and advising employers how to reduce risks to which employees are exposed.
Subsequently, at p 300, he was asked the basis of the opinions expressed by him in paragraph 7.2 of his report, and at p 301 he stated that his knowledge as an ergonomist includes knowledge of the causes of musculo-skeletal disorders and the common causes are repetition, and originally they were called repetitive strain injuries. They include static muscle contractions, which are forceful contractions, and he said he is guided by the Manual Handling Code of Practice and its predecessors in Victoria, and also by research publications. He stated that his work involved him giving advice to employers whose employees carry out tasks similar to Ms Surmon involving frequent fine motor skill tasks using pincer grips and the like.
And he said that one of the things that is a common cause of problems in office work is substantial writing with a pen, and he often recommends the use of different sorts of pens or changes in work practices. He said that his role as a ergonomist involves him advising employers as to aspects of employment likely to contribute to injury, and particularly involves him identifying ways of reducing the loading of the musculo-skeletal structures, in particular, matters relating to the degree of force involved in the task, the duration of it, the frequency of it, static postures and the need for rest breaks. At p 307, he stated that it was often his role to make that type of assessment and to put together what he had described as an integrated, coherent programme such as the type set out in paragraph 7.14 of his report.
He stated that often in workplaces there are health and safety representatives who may well know the importance of some or many of those steps, but what his expertise brings to bear is the putting together of the integrated programme. He said he does that using his knowledge, theoretical and practical, of the human body, and his ability to identify matters at the workplace which places workers at risk through that type of work.
I have outlined the evidence given by Mr Hennessy in the voir dire in some detail, because it is, I think, critical to the resolution of the difficult issue raised by Ms Britbart. During the weekend I took the opportunity to read the passages to which I have just referred on a number of occasions.
In summary, it seems to me that Mr Hennessy has identified the tasks performed by the plaintiff and the method by which she was required to perform them, which he states constituted the risks set out in paragraph 7.2. He has also described, particularly in his evidence before me, the expertise which he has in biomechanics, and how the body can be placed at risk by overuse, and in particular he has described the knowledge, which he has, of the effect of the performance of repetitive tasks involving fine motor skills, similar to those which he understood the plaintiff to be undertaking in the course of her work with the defendant. And he demonstrated a familiarity with similar types of repetitive fine motor tasks, which place employees at risk of injury.
Thus, it would seem to me that Mr Hennessy sufficiently stated how his expertise, that is his specialised area of knowledge, has enabled him to identify the tasks which considered placed the plaintiff at risk of injury. It is true that he did not describe the precise anatomical processes by which the musculo-skeletal structures are placed at risk, but he has, in my view, demonstrated the tasks which cause the risk, and the nature of the risk, in respect of each of which, in my view, he has demonstrated he has appropriate expertise.
I must say that I consider the question of the admissibility of Mr Hennessy’s evidence, and in particular its compliance with the second requirement under s 79 subsection (1) of the Evidence Act, as a borderline issue. However, based on the matters to which I have just referred, I consider that the evidence which has been adduced on the voir dire is sufficient, although barely so, to demonstrate a sufficient relationship between Mr Hennessy’s field of expertise and the opinion which he expressed, in order to be satisfied that the views, which he ventures in paragraphs 7.2 and 7.14 of his report, are wholly or substantially based on his expertise.
Thus, in my view the views expressed, and the evidence which is purported to be led from Mr Hennessy, and in compliance with s 79(1) of the Evidence Act. I am similarly of the view that the opinion which he expresses in paragraph 7.14 is admissible. Indeed, Ms Britbart, in her submissions, focused mainly on the issue of risk. Mr Hennessy, as I have stated, has shown that he does have the expertise to put together what he describes as an integrated coherent program of steps which an employer should take to avoid the type of risk which is involved.
Therefore in my view the evidence which is to be adduced from Mr Hennessy, does comply with s 79(1) of the Act.
I turn then briefly to the submissions made by Ms Britbart in relation to the discretion under s 135. I would not exclude the evidence under any of the three sub-paragraphs of that section. I do not consider that the evidence is unfairly prejudicial to the defendant. Firstly, Mr Hennessy has identified sufficiently the method by which he has reached his conclusions, and the defendant will no doubt be able to cross-examine Mr Hennessy in relation to those matters. I do not consider that the judgment of the jury will be overwhelmed by the fact that Mr Hennessy comes here to this court as an expert. They will be given the usual direction relating to the method by which they are to critically examine and evaluate the evidence of all experts, including Mr Hennessy. I do not consider the evidence to be misleading or confusing, particularly those parts which remain in the report. Nor do I consider that the evidence would cause or result in undue waste of time.
Accordingly, I would not exclude paragraphs 7.2 and 7.14 of the first report of Mr Hennessy dated 23 December 2010.
In order that there is no misunderstanding, what flows from the ruling, and the concessions made by Mr Richards are as follows. In relation to the first report, Paragraph 6 is excluded. Secondly, paragraph 7.2 is admitted, but Mr Hennessy must in giving that evidence explain, as he did on the voir dire, how the identification by him of the risks is based on his specialised knowledge. Paragraphs 7.3 to 7.12 are excluded. In relation to paragraph 7.13, the first two sentences are admitted, that is going to up to the words “manual handling risks in their workplaces”. However that is subject to Mr Hennessy identifying, as he did on the voir dire, the information about the risks, which he said was available to employers. Otherwise that paragraph in its current form is only conclusionary. The balance of paragraph 7.13 is excluded, and paragraph 7.14 is admitted.
It would follow that 8.1 to 8.3 are excluded, and 8.4 to 8.5 are admitted. In relation to the second report, paragraph 5 was not I think the focus of any objection, and correctly so, and that would be admitted. That is the photographs mainly, and the inspection. Paragraph 7.1 is admitted. Paragraphs 7.2 to 7.6 are excluded. The summary conclusions which are almost, but not quite, identical to the first report. Paragraphs 8.1 to 8.3 are excluded and paragraphs 8.4 to 8.5 are admitted.
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