Volvo Group Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Volvo Group Australia Pty Ltd v Simon Blackwood
(Workers' Compensation Regulator) [2014] QIRC
192
PARTIES:	Volvo Group Australia Pty Ltd
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2014/229
PROCEEDING:	Appeal against decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON:	21 November 2014
HEARING DATE:	20 November 2014
MEMBER:	Industrial Commissioner Knight
ORDERS:	Evidence of expert witness Mr Simon Phillips to
be admissible
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether expert witness evidence is admissible - Evidence of opinion - Determined appropriate to hear from witness in expert capacity
CASES:	Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Willett v United Concrete Pty Limited and Anor
[2009] NSWSC 957
Workcover Corporation of South Australia v
Jani-King (SA) Pty Ltd [2005] SAWCT 57 Clark v Ryan (1960) 103 CLR 486 Ramsay v Watson (1961) 108 CLR 642 Taylor v Harvey [1986] 2 Qd R 137 Dekort v Closter [2010] VCC 1640 Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 French v Van Der Giezen [2013] WADC 173 Clark v Ryan (1960) 103 CLR 486
APPEARANCES:	Mr P.B. O'Neill, Counsel instructed by the Appellant Mr J.W. Merrell, Counsel instructed directly by Simon Blackwood (Workers' Compensation Regulator) the Respondent
Ai Group Legal for the Appellant

Decision

[1]      In the course of the hearing on this matter Counsel for the Respondent raised an objection to the admissibility of the evidence of Mr Simon Phillips, witness for the Appellant, on the basis that Mr Phillips did not meet the criteria necessary for an expert witness. At the request of the Commission, arguments were presented by both parties in relation to the objection.

[2]      I have considered the submissions and precedents[1] relied on by both parties in reaching

my decision. It is clear the basic principles on or by which a court or tribunal decides

whether expert evidence is admissible and/or whether someone is an expert witness

2

[1] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Willett v United Concrete Pty Limited and Anor

generally fall into three broad categories. In the first place, the evidence of opinion must be outside the ordinary experience such that this Commission requires expert assistance to draw correct inferences in the matter.

[3]      In this respect I am persuaded, at least in part, by some of the arguments of the Appellant in so far as neither the Commission nor, in my view, a lay person have the ability to form a sound judgment as to the nature of the flooring utilised at the Wacol factory premises, and in particular the nature of the flooring surface and its compliance with Australian Standards. Though I note that in this matter, whilst Mr Phillips has indicated he has performed many in situ tests of various floor static and dynamic co-efficient of friction with various testing devices in the past, these tests were not performed.

[4]      I am also satisfied that at least part of the evidence Mr Phillips proposes to provide falls into an organised body of knowledge, that is, slips and falls in an occupational setting.

[5]      In this context, it is also necessary to consider Mr Phillips qualifications and experience. Mr Phillips has relevant post-graduate and under-graduate qualifications in Occupational Health and Safety. He is also a certified professional ergonomist; a member of the Ergonomist Society; and holds qualifications and experience in workplace assessment. These qualifications and experience in my view are relevant to part of the evidence he has been asked to provide today. In his expert capacity, Mr Phillips has also previously provided advice and assistance to industry, courts and tribunals on a broad cross-section of safety matters, including trips and falls.

[6]      Whilst I do have some sympathy for Mr Merrell's submissions with respect to the final two conclusions contained in Mr Phillips report and in particular, the linkages he has made between Mr Tapp and pedestrian gait dynamics, on balance I think it is appropriate for the Commission to hear from him in his expert capacity.

[7]      It is worth noting however, in these sorts of matters that it is important for the tribunal to weigh up all the evidence. The parties will have an opportunity to file written submissions in relation to the evidence provided by Mr Phillips, particularly on a number of the aforementioned conclusions contained in the expert report."

[8]      Order accordingly.

[2009] NSWSC 957; Workcover Corporation of South Australia v Jani-King (SA) Pty Ltd [2005] SAWCT 57; Clark v Ryan (1960) 103 CLR 486; Ramsay v Watson (1961) 108 CLR 642 ; Taylor v Harvey [1986] 2 Qd R 137; Dekort v Closter [2010] VCC 1640; Indigo Mist Pty Limited v Palmer [2012] NSWCA 239; French v Van Der Giezen [2013] WADC 173.

2 Clark v Ryan (1960) 103 CLR 486.