Te Kani v Peninsular Trolley Collections & Anor (Ruling)
[2023] VCC 204
•20 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-9-06163
| TAIPU HEMI TE KANI | Plaintiff |
| v | |
| PENINSULAR TROLLEY COLLECTIONS PTY | First Defendant |
| LTD and | |
| WOOLWORTHS GROUP | Second Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2023 | |
DATE OF RULING: | 20 February 2023 | |
CASE MAY BE CITED AS: | Te Kani v Peninsular Trolley Collections & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 204 | |
RULING
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Subject:EVIDENCE
Catchwords: Relevance – Opinion – Admissibility of expert report
Legislation Cited: Evidence Act 2008
Cases Cited:Dasreef v Hawchar (2011) 243 CLR 588
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Parrish v Specialized Australia Pty Ltd [2020] VSC 15
Ruling: Some portions of the report ruled inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the First Defendant For the Second Defendant | Mr R Middleton KC Mr P Elliot KC | Wisewould Mahony Thomson Geer |
HER HONOUR:
1The parties seek a ruling as to the admissibility of two reports by Brendan Grimes, a qualified ergonomist. The plaintiff conceded that part 6 of the report of 26 November 2021 which recites various standards, guidelines and regulations in relation to occupational health and safety was not relevant. The plaintiff did not seek to press the admissibility of paragraphs 7.31 to 7.79 of that report. The defendants submit that the opinion is irrelevant, is not an opinion based on specialised knowledge and is speculation and assertion.
2The relevant parts of the Evidence Act 2008, 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.
3Section 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.
4If 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.
5Section 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.
6This requires an assessment of whether the opinion evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.[1]
[1] Dasreef v Hawchar (2011) 243 CLR 588.
7If relevance is established, the expert opinion must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is based applies to the facts assumed or observed so as to produce the opinion propounded.[2]
[2] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743, [85].
8This necessarily requires a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that that opinion is based on the specialised knowledge (‘the statement of reasoning rule’).[3]
[3] Parrish v Specialized Australia Pty Ltd [2020] VSC 15; Dasreef v Hawchar (2011) 243 CLR 588, 608.
9At issue in the proceeding is whether the system requiring the plaintiff to remove eight (or some other) number of trolleys from a bay was a reasonable system of work and whether it exposed him to a risk of injury. The risk of injury identified is the risk that using high force would be more likely to cause a person to become unstable and fall than using a lower force.
10The opinion of Mr Grimes clearly could, if accepted, rationally affect the probability of the existence of a fact in issue in the proceeding.
11Mr Grimes is a certified Professional Ergonomist and Certified Occupational Health and Safety Professional, who has practiced in the field of ergonomics since 1991. He describes ergonomics as the science of adapting work, processes, environments and products to human abilities and limits. He has developed safety management systems, safe operating procedures and safe work measure statements in a variety of industries. He has provided manual handling training to a range of workers including those in the retail sector.
12Mr Grimes was provided with a number of documents identified in his report and asked to assume a set of facts. Those facts include the following:
(a) The plaintiff was moving a load of eight trolleys, strapped together, out of a trolley bay at the time of the incident;
(b) He stepped back only his left foot, leaned back and landed on his right foot, rolling his right ankle. The front of his body landed on the trolley;
(c) One of the difficulties in moving trolleys was that they frequently had defective wheels and this made the movement of trolleys extremely difficult on occasions;
(d) He was required to work very quickly and the work was constant for at least three hours or more;
(e) He generally moved eight trolleys at a time;
(f) He was provided limited initial training including an induction and verbal training. He was provided no supervision, no refresher courses, and no further information or instruction;
(g) The repair and maintenance of trolleys was as per the Repair and Maintenance Specifications of the Second Defendant’s contract with Ausmart and the trolley Collection Services Agreement; and
(h) The Trolley Collection Services Agreement set out what trolleys could and could not remain in service.
13Mr Grimes’ first report sets out his site inspection. During the site inspection Mr Grimes pulled eight trolleys strapped together out of a trolley bay and recorded the forces measured. He measured the ‘peak force’ in five trials. He measured peak force and average force in two trials. He explains the average or continuous force is the force required to keep the trolleys moving.
14He recorded peak forces varying between 17.94 kg force and 44.23 kg force. He recorded the results of the two trials where both peak and average forces were measured. In the first trial the peak load (kg force) was 35.26 and the average load was 5.5337. In the second trial the peak load was 43.1 and the average load was 10.8075.
15He explained the variability in peak and average loads measured as follows:
The results appeared to depend on two main factors, either friction against the railing or adjacent trolleys; or the direction of trolley wheels (ie whether they were facing the direction of travel or not). It did not appear that the wheels of the trolleys were damaged or deficient.
16He measured the results obtained against the ‘Snook tables’ which he briefly describes as tables ‘based on controlled experiments using psychophysical evaluation and can be used to find the percent of an industrial population capable of sustaining the efforts tabulated in lifting, lowering, pushing, pulling ad carrying. The Snook tables provide guidance as to the proportion of the population that should be able to do the tasks as a regular part of daily work’.
17He estimated that the task of pulling eight trolleys out of a bay would occur approximately once every five minutes. He provided a table which shows different initial forces and sustained forces and the percentage of the male population for whom the task is acceptable. He reproduces this table for the female population.
18The table for men is as follows:
Percentage of population for which task acceptable
Men
10
25
50
75
90
Initial force
51
45
39
32
27
Sustained force
42
37
31
25
19
19He has established how his expertise is relevant to the opinion he expresses and the facts and assumptions upon which his opinion is propounded.
20From this table he draws the following conclusion:
This suggests that the sustained forces for keeping trolley load (8 trolleys) rolling would be expected to be performed by all males and females. However several of the starting or initial forces recorded to get the trolleys moving, would suggest that less than 50% of men…could exert such forces to get the trolleys moving safely. The recordings obtained over 40kg-f would preclude females from performing the task safely and around 25% of males.
21He goes on:
It is assumed that damaged or deficient wheels would result in higher forces to get the load moving and would likely increase the rolling or continuous load. However, I was unable to substantiate these claims while testing.
22He also noted that the wheels on the trolleys were not all facing in the same direction, some were at a 90 or 180 degree angle and it took some time for the wheels to turn to allow the trolleys to move in the same direction. He says it ‘did appear’ that the wheels did not all turn smoothly each time, and there was some sideways movement until wheels ‘corrected’ but he could not state that the wheels were jamming or getting stuck.
23He observed that the higher readings appeared to occur when trolleys got stuck on the railing or adjacent trolleys or if the wheels were not facing the direction of travel. Lower readings appeared to coincide with no impact or scraping of adjacent trolleys or railings and when the wheels lined up with the direction of travel.
24He concluded that wheels not lining up, or trolleys impacting adjacent railings or other structures, would likely increase the forces required to pull the trolleys out of the bay.
25He then opines:
It is likely that, trying to move eight trolleys at a time, especially pulling them out of the trolley bay, was likely to pose a risk of injury. The forces required, as described above in the testing performed, were often high but also unpredictable. Trolleys getting caught on adjoining rails, adjacent trolleys and/or wheels that were damaged or simply not facing in the direction of travel, all posed risk of injury to the plaintiff. Once the necessary forces were applied, required to get the trolleys moving, in these situations, could easily have resulted in some degree of uncontrolled movement, which the plaintiff seems to have experienced, when injuring his ankle (sic). As he reported, by leaning back on the left leg suggesting he was trying to exert more force, to get the trolleys moving. He rolled his ankle as he stepped back and put his weight on his right foot.
26He says the forces were ‘often high’ after conducting seven trials with peak load results ranging from 17.94 to 44.23. While it is not clear whether an assessment that a force is high is made by reference to the Snook table, some other industry standard, or Mr Grimes’ own experience and expertise as an ergonomist, his expertise as an ergonomist assessing the forces on the human body and the operation of forces in work systems would qualify him to express this opinion.
27Based on the Snook tables, he has reached a conclusion as to the percentage of the male population who would be able to undertake the task safely.
28Mr Grimes provided a supplementary report to which objection is also taken. The defendants submit it does not render the opinion of Mr Grimes admissible and was served very late. In this report, Mr Grimes explains that the Snook tables are ‘an industry standard’ and have been used by ergonomists for several years. He explains that to use the Snook tables he:
(a) selects the height of application of force (floor to hands);
(b) selects push or pull distance;
(c) finds the closest force in the table corresponding to the height (in this case 104cm), distance (approximately 2-3 metres to pull trolleys out) gender and repetition (one every five minutes);
(d) finds the corresponding percent of population who can perform this task without stress.
29The application of the Snook tables then gives Mr Grimes the table he has provided in his report which is reproduced above.
30Dixon J said in Parrish and Specialized Australia Pty Ltd,[4] ‘It is unfair and inappropriate in proper cross examination to expect a party to challenge this lack of reasoning in the report and risk thereby drawing out some statement of reasoning of which the party has no notice’.
[4] Parrish v Specialized Australia Pty Ltd [2020] VSC 15.
31He says in his opinion the trolleys, moved in the way they were expected to be moved, constituted an occupational hazard and that ‘as outlined above’ the forces required to pull the trolleys out of the trolley bay were likely to exceed ‘recommended safe levels’.
32While he does not set out the recommended safe levels he has:
(a) provided a table which shows the percentage of the population who are expected to be able to perform the task safely;
(b) the results of his own experiments; and
(c) concluded that the results of that experiment demonstrate forces that exceeded the safe level.
33This amounts to a sufficient statement of reasons for his conclusions. The defendants are provided with Mr Grimes’ conclusions and armed with enough information to understand how Mr Grimes has come to his conclusions and to appropriately cross examine him on those conclusions. His failure to identify what a safe level is or what would constitute high force is a limitation but does not render the opinion inadmissible.
34The supplementary report which explains the Snook tables is admissible. Though late served, it is not apparent that either defendant is prejudiced by its late service and it assists the Court in understanding the primary report.
35Mr Grimes also expresses an opinion about the maintenance and upkeep of the trolleys, including the process to identify defects and perform regular maintenance. He sets out the assumptions upon which his opinion is based. It was submitted by counsel for the plaintiff that, as an ergonomist, Mr Grimes is an appropriate expert to assess a safe workplace. However nowhere in his opinion does he explain why his expertise and experience qualify him to express the opinions he expresses about the maintenance and upkeep of trolleys.
36He quite correctly discloses the facts and assumptions upon which his conclusions are based, which include monthly inspections of trolleys, yearly maintenance of trolleys, and that damaged trolleys would be returned to circulation without being repaired. He concludes that the maintenance and upkeep of trolleys was likely to be inadequate, and that inspection and maintenance was insufficient.
37There is no attempt to explain how his expertise enables him to express this opinion by, for example, setting out industry standards as to appropriate inspection and maintenance regimes or explaining why trolleys would require more frequent inspection or maintenance than that provided.
38This failure to establish how his expertise enables him to express this opinion renders the opinion inadmissible. Those parts of his report which deal with the maintenance and upkeep of trolleys are inadmissible.
39He then makes a number of recommendations to reduce or eliminate the risk of injury to the plaintiff. These include:
(a) undertaking a risk assessment that included measuring forces and comparing them to recommended safe levels to determine safe maximums;
(b) reducing the number of trolleys moved at one time, based on the risk assessment. He says he conducted a trial using seven trolleys which recorded ‘more favourable’ peak forces of 18.66kg-f. He says limiting trolley collections to five with a strap ‘seems more reasonable’;
(c) that the first defendant should have provided a powered trolley moving machine such as a Muvit machine which would have reduced manual handling;
(d) ‘more regular and better managed repair and maintenance’ to ensure damaged trolleys were removed from service;
(e) more ongoing training;
(f) clearer and less ambiguous training about the maximum numbers of trolleys that could be moved.
40He has not established how his expertise would enable him to opine on training and supervision, nor has he set out a statement of reasons as to his conclusions that the first defendant ought to have provided more ongoing training, information and supervision. These recommendations cannot rationally affect the assessment this jury must undertake as to whether the plaintiff’s injuries were caused by the negligence, or breach of statutory duty, of one or both of the defendants. Therefore these opinions are inadmissible.
41Finally, he opines on the application of Occupations Health and Safety Regulations 2017 and whether they were adhered to in the workplace. This is a matter for the jury and his opinion on this is irrelevant. The admissibility was not pressed by the plaintiff.
Ruling
42The following parts of the report are inadmissible:
(a) All of part 6 (which is not pressed);
(b) 7.16 – 7.25;
(c) 7.29(d) – (f); and
(d) 7.31 – 7.79.
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