Youfen Deng v FYF Pty Ltd (Ruling No.4)
[2023] VCC 1663
•11 September 2023 (Reasons Published 15 September 2023)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-00998
| Youfen Deng | Plaintiff |
| v | |
| FYF Pty Ltd | Defendant |
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JUDGE: | Ginnane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2023 and 11 September 2023 | |
DATE OF RULING: | 11 September 2023 (Reasons Published 15 September 2023) | |
CASE MAY BE CITED AS: | Youfen Deng v FYF Pty Ltd (Ruling No.4) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1663 | |
RULING
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Subject:Evidence
Catchwords: Admissibility of expert evidence – Jury trial
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:Clark v Ryan (1960) 103 CLR 486; Dasreef v Hawchar (2011) 243 CLR 588; Rees v Lumen Christi Primary School [2010] VSC 514
Ruling: Evidence inadmissible
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. Frederico with Ms C. Shambrook | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G. Hevey with Mr T. Storey | Russell Kennedy Lawyers |
HIS HONOUR:
1When a person is a witness in a trial of a proceeding, he or she may not offer an opinion unless his or her evidence falls under an exemption provided by the Evidence Act 2008 (Vic) (“Evidence Act”).
The Plaintiff’s Proceeding
2The plaintiff's Amended Statement of Claim is expressed relevantly as follows at paragraph 5:
Throughout the course of her employment with the defendant company, the plaintiff was required to perform fast paced, heavy and repetitive bending, lifting, twisting, pushing, pulling and overhead reaching when performing housekeeping duties and cleaning rooms (“the work duties”).
3At paragraph 7, particulars of negligence and/or breach of duty are set out as:
(a) Failing to provide and maintain a safe system of work.
(b) Failing to provide a safe place of work for the Plaintiff.
(c) Failing to take care for the safety of the Plaintiff.
(d) Failing to undertake any or any appropriate risk assessment of the Plaintiff’s duties.
(e) Failing to provide the Plaintiff with any or any adequate manual assistance to perform her duties.
(f) Failing to provide the Plaintiff with any or any adequate mechanical assistance to perform her duties.
(g) Failing to properly instruct the Plaintiff.
(h) Failing to properly supervise the Plaintiff.
(i) Failing to rotate the Plaintiff’s duties;
(j) Failing to provide the Plaintiff with adequate breaks;
(k) Failing to allow the Plaintiff enough time to clean the rooms;
(l) Requiring the Plaintiff to manoeuvre heavy double beds without assistance;
(m) Failing to ensure that the furniture in the rooms was suitable for the Plaintiff to move.
(n) Requiring the Plaintiff to clean an excessive number of rooms in a limited amount of time;
(o) Failing to provide the Plaintiff with any or any adequate training;
(p) Failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder.
4At paragraph 8 it is pleaded that:
Further, or in the alternative, the Plaintiff's injuries were caused by breach by the company, in its duty to the Plaintiff pursuant to the provisions of the Occupational Health & Safety Regulations 2007 and, in particular Regulations 3.1.1 - 3.1.3.
PARTICULARS
(a)Failing to carry out any or any relevant hazard identification for the tasks required to be carried out by the Plaintiff;
(b)Failing to eliminate so far as is reasonably practicable, the risk of musculo-skeletal disorder to the Plaintiff;
(c)Failing to reduce the risk of musculo-skeletal disorder so far as is reasonably practicable;
(d)Failing to review and/or revise the risks in relation to musculo-skeletal disorders in the workplace;
(e)Failing to ensure, having identified the tasks the Plaintiff was required to carry out, involved a risk of musculo-skeletal disorder:
(i) eliminating the risk; or
(ii) reducing the risk –
so far as is practicable.
The contestable evidence of opinion
5Mark Hennessy is an Applied Scientist with qualifications by way of a bachelor's degree majoring in physics and physiology, and holds a Graduate Diploma in epidemiology and biostatistics, and a master’s degree in public health. He says that because of training and experience, he has expertise in the causes and mechanisms of accidents and injuries, including workplace accidents and injuries, and in the methods of assessing and reducing risks of accidents and injuries.
6The defendant accepts that Mr Hennessy possesses expertise to offer expert opinions in the areas he professes. Of course, the fact alone that a person has specialised experience in a particular field, will not qualify her or him as an expert capable of giving evidence at trial. I will address this in greater detail later in this Ruling.
7The relevant parts of the Evidence Act, beginning with section 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.
8Section 56 of the Evidence Act 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.
9If evidence is relevant but is evidence of an opinion, the exclusionary rule in section 76 of the Evidence Act 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.
10Section 79(1) of the Evidence Act provides an exception to that exclusionary rule. That is, it provides an exception by way of 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.
11In Dasreef Pty Ltd v Hawchar,[1] the majority of the High Court stated that when considering opinion evidence, admissibility is to be determined by application of the requirements of the Evidence Act and a two-stage inquiry is required.[2] The first enquiry is why the evidence is relevant. As the majority of the court observed:[3]
Section 76(1)[4] expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact"… the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it 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". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
[1] (2011) 243 CLR 588 (“Dasreef”).
[2] Ibid at 604 [37].
[3] Ibid at 602 [31].
[4] Of the Evidence Act 1995 (NSW), cf. s 79 of the Evidence Act 2008 (Vic).
12At the second stage of the inquiry, admissible evidence must satisfy two criteria. The witness must have “specialised knowledge based on the persons training, study, or experience”. The opinion expressed in evidence by the witness must be “wholly or substantially based on that knowledge”. It is ordinarily the case as Heydon JA (as he then was) said in Makita (Australia) Pty Ltd v Sprowles,[5] 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] (2001) 52 NSWLR 705 at 743 [85], approved in Dasreef at 604 [37].
13In a separate judgment of the High Court in Dasreef,[6] Heydon J considered the contention put that the text of section 79 of the Evidence Act rendered the rules developed at common law concerning the admissibility of expert evidence to no longer be useful.
[6] Above n 1 at 608.
14Rejecting that contention, in summary, Heydon J explained that the matters will usually be considered at the second stage of the inquiry, whether the exception under section 79(1) renders opinion evidence admissible - may be conveniently referred to as four ‘rules’ (one of which is in three parts). They are:
1) Is the opinion relevant (or of sufficient probative value);[7]
2) Has the witness properly based ‘specialised knowledge’ (the expertise rule);
3) is the opinion to be propounded ‘wholly or substantially based’ on specialised knowledge (the expertise basis rule);
4) is the opinion to be propounded ‘wholly or substantially based’ on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):
i.are the facts and assumptions on which the experts' opinion is found disclosed;
ii.is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
iii.is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge - the statement of reasoning rule.[8]
[7] Bearing in mind the discretion under s 135 of the Evidence Act.
[8] See also the summary list of considerations identified by Austin J in ASIC v Rich [2005] NSWSC 149 at
[256].
15Failure by the party tendering expert opinion evidence to comply with the factual basis rules makes the opinion evidence irrelevant. The tendering party must identify and prove, or at least foreshadow the proof of, the facts relied on by the expert to an extent sufficient to persuade the Court that the evidence of opinion is relevant under section 55 of the Evidence Act.
16The tendering party must identify the fact in issue in the proceeding, the probability of which may be rationally affected by the opinion evidence. If the opinion is irrelevant or lacks sufficient probative value, it is inadmissible.
The report in issue
17Mr Hennessy prepared a report dated 28 July 2023 at the request of the solicitors for the plaintiff. The plaintiff seeks to call Mr Hennessy and so tender his report. The defendant seeks to exclude the report in its entirety.
18Although the defendant foreshadowed the application to exclude the report before the jury was empanelled, it was agreed that the trial would proceed and the matter of the defendant's application would be determined at a later and convenient stage in the proceeding.
19The application commenced to be heard in the afternoon of Friday 8 September and as well when court resumed early this morning, Monday 11 September 2023. This morning, in light of submissions and arguments made on the Friday, and in anticipation that much of the contents of the report of Mr Hennessy might be determined objectionable in light of exchanges that occurred between the bench and counsel for the plaintiff, Ms Frederico's instructing solicitors prepared a redacted report.
20I have heard brief further submissions by Ms Frederico this morning and equally brief submissions in reply by Mr Storey on behalf of the defendant. The substance of each set of submissions - first on behalf of Ms Frederico - is to maintain the redacted version of the report. That is not to say that Ms Frederico conceded points of objection that I had foreshadowed on Friday. Nonetheless, the plaintiff seeks to press the balance of, or some parts of, the original report.
21Mr Storey's submission in brief compass is that, although the plaintiff's expert has expertise, the content of the report does not provide exposition in respect of the issues upon which the jury will be asked to decide and furthermore does not satisfy the factual basis rule.
22In my judgment the report must be excluded. My reasons apply to the contents of the report in either the unexpurgated or proposed redacted form. Excluding Mr Hennessy's curriculum vitae, the report opens by him setting out the instructions he received to assist him with the preparation of his report, with the purpose of a report being directed at identifying the steps relevant to the prevention or reduction of manual handling injuries having regard to (a) designing the task; (b) the proper allocation of the task; and (c) instruction and training and safe working procedures.
23Mr Hennessy was also asked whether in light of the risks posed by the task, if any, what measures were open to the defendant to avoid or minimise risk of injury having regard to:
a. the system and method of the task;
b. identifying the task through assessment, review or audit, as comprising a risk of strain injury with the prospect of earlier intervention;
c. hazard identification and adequate review of risk control measures; and
d. instruction and training on safe working procedures relating to the task.
24He was asked if it was:
reasonably practicable for the defendant to reduce or eliminate the risk of injury having regard to:
a. the likelihood of the hazard or risk eventuating; and
b. the availability and suitability of risk reduction or elimination.
25Next Mr Hennessy was asked what steps if any, in his opinion, would have avoided or minimised the risk of injury to the plaintiff. Finally, he was asked to comment on any other matters he might consider pertinent.
26At paragraph 3 of his report, Mr Hennessy sets out the documents with which he had been supplied. At paragraph 4 of his report, Mr Hennessy set out the information supplied to him by the solicitors for the plaintiff that include the allegation that “throughout the course of her employment with the defendant, the plaintiff was required to perform fast paced, heavy and repetitive bending, lifting, twisting, pushing, pulling and overhead reaching when performing housekeeping duties and cleaning rooms.”
27He was advised that the plaintiff was employed on a full time basis, however, her hours altered from day to day but that she would generally work about seven hours per day, and she would clean between 15 and 20 motel rooms.
28He was further instructed that on 21 October 2014, the plaintiff fell over when making a bed when she was pulling a large double bed away from the wall and the bed head to make it properly, when she slipped and fell, landing on her buttocks on the ground, because of the excessive force she had to use.
29He was also instructed that on 9 March 2017, the plaintiff moved a large bed when she felt pain in her lower back. Of note is that the instructions Mr Hennessy was provided for the incident on 9 March 2017, do not include that the plaintiff fell over, as has been her evidence in chief.
30At paragraph 5.1 of his report, Mr Hennessy says that he has not carried out an inspection of the premises. Criticism by Mr Storey was made of this. It is a valid criticism so far as the absence of Mr Hennessy’s knowledge of the site is concerned, but the criticism needs to be calibrated by reason that apparently there were substantial alterations made to part of the premises and some furniture in the motel rooms in which the plaintiff worked and before the date when Mr Hennessy was engaged to prepare a report thereby rendering the probative worth of a view debatable.
31However, Mr Hennessy has not interviewed the plaintiff and his report was prepared on the papers.
32Paragraph 6, including sub-paragraphs 6.1 to 6.5 of Mr Hennessy's report, includes references to Standards that do not apply in this proceeding. These are: the Victorian Code of Practice for Manual Handling 2000, the Victorian Home Care Industry: Occupational Health and Safety Guide (Victorian Department of Human Services and WorkSafe Victoria) 2005; and a Health and Safety Solution: Making Beds (WorkSafe Victoria).
33At paragraph 6.3 of his report, Mr Hennessy states that “In 2005 the Victorian Government and WorkSafe Victoria released the Victorian Home Care Industry Occupational Health and Safety Guide”, a document that he describes as a “comprehensive 120 page book with both systemic and detailed practical guidance”.
34Mr Hennessy then states that whilst the guide is not directed at the hotel industry, “most of the material relating to safety aspects of housekeeping tasks is directly applicable”. He then purports to say it contains “authoritative risk assessments of relevant tasks”. However, he does not explain what the safety aspects are, or what the “systemic and detailed practical guidance” comprises or, why, in his opinion, they constitute “authoritative risk assessments".
35At paragraphs 6.4 through to 6.5 of his report, Mr Hennessy copies an extract from the guide entitled “Making Beds”. The content of the guide refers to a risk control strategy that includes that, it if is not practicable to move the bed from the wall, to permanently ensure the bed is fitted with castors. The plaintiff’s evidence given under cross-examination, is that all the beds were on castors.
36At page 13 of his report and at paragraph 7 of it, Mr Hennessy commences what he calls his "Discussion and Analysis". At paragraph 7.3 he directs himself to responding to the first question asked of him, that is to identify the steps that are relevant to the prevention or reduction of manual handling injuries, having regard to:
a. Designing the task;
b. The proper allocation of the task;
c. Instruction and training in safe working procedures.
37What follows from paragraphs 7.4 through to 7.7 of Mr Hennessy's report is a series of extracts from the Victorian Occupational Health and Safety Regulations 2007, including the regulatory definition of “hazardous manual handling”.
38At 7.7 of his report Mr Hennessy states:
Hazardous manual handling can readily be identified by employers through a combination of consulting employees, walkthrough surveys of the workplace, and reference to guidance materials such as that cited in Section 6 above.
39He adds that:
In particular, bed moving and bed making are identified as hazardous manual tasks, and several countermeasures are recommended in each of the aforementioned documents.
40As I have already said, the reference to Section 6 of his report includes, other than a reference to the Occupational Health and Safety Regulations 2007, references to the Code of Practice for Manual Handling, the Homecare Industry Guide and the document from WorkSafe Victoria titled “A Health and Safety Solution, Making Beds”, none of which the defendant is bound by. Furthermore, the Occupational Health and Safety Regulations says nothing about the making of beds.
41Because the defendant is not bound by the Code of Practice for Manual Handling and is not bound by the Occupational Health and Safety Guide, nor the Health and Safety Solution for Making Beds issued by WorkSafe Victoria, it would be wrong and misleading for the jury to be led to believe otherwise by the provision of a report, the findings of which are so inexorably bound up with and dependent on such material.
42Importantly, it is not for Mr Hennessy to defer his opinion to or subjugate his expertise to other authors or other general reports instead of offering opinions derived from his own expertise and specialised knowledge based on observed or assumed facts. Whilst his expertise and specialised knowledge may be built on such publications, his report gives no explanation why he has come to his opinions by reliance on them and deferred to the opinions expressed by others. It is the expertise of others and not Mr Hennessy that is being propounded in much of the report.
43At paragraph 7.8 of his report under the heading “Cleaning and bed Moving involves hazardous manual handling”, Mr Hennessy opines:
In my opinion based on my ergonomics knowledge and experience, cleaning work involves substantial risks for back and shoulder injuries.
44I agree with Mr Storey that this is not a statement of expert opinion.
45At paragraph 7.9 of his report Mr Hennessy states:
In particular, bed moving involves high forces and awkward postures and therefore constitutes hazardous manual handling. My opinion is consistent with the Victorian Homecare Industry Occupational Health and Safety Guide, part of which I have reproduced in Section 6 above.
46It is not to the point, and it is not deductive of Mr Hennessy’s reasoning and his expertise, that his opinion is expressed as consistent with the Homecare Industry Occupational Health and Safety Guide for the reasons I have already expressed.
47To accept the report in redacted form and absent the inadmissible matters, is largely to leave the balance of the report devoid of reasoning that can be attributed to Mr Hennessy’s expertise.
48Mr Hennessy says at paragraph 7.10 of his report:
Therefore, risk control was required under the Victorian Occupational Health and Safety Regulations 2007. One risk control method recommended in the aforementioned guide is to permanently move the bed away from the wall, if practicable.
49To state that risk control may have been required does not require expert evidence. His reference to the aforementioned guide as one that the defendant could have used as a measure of control of risk, even if valid, has the attendant vice that Mr Hennessy again has failed to analyse and explain his own application of expertise, but has assumed and adopted the efficacy of the guide as a means of practical application that might have been adopted by the defendant.
50Mr Hennessy does not grapple with the content of the guide, or other material publications referred to and relied on. Rather than being an expression of his opinion, in my judgment, Mr Hennessy has merely stated that he has found some other set of recommendations in some other instruments or publications. Even if one puts aside the fact that the defendant was under no duty to consider adopting the contents of the same, he has failed to explain their possible mitigating effect to an identified risk based on the application of his own specialised knowledge.
51All of paragraph 7.11 of Mr Hennessy's report is objectionable. The extent of the opinion is to restate his previously expressed opinion that back injuries are a common risk for cleaners and that it is:
consistent with advice from the Victorian WorkCover Authority for the cleaning industry, for example “injury hotspots in the cleaning industry”…
52Mr Hennessy then produces an extract of “injury hotspots” at pages 15 and 16 of his report. This is merely the adoption of statistical data for the most common injuries based on injury claims maintained by WorkSafe Victoria.
53At paragraph 7.12 of his report, under the heading “Reducing risk by appropriate allocation of the work”, Mr Hennessy includes the following:
In my opinion, two obvious ways of allocating work in a low risk manner are: (a) to manage the overall workload on each worker over each shift; and (b) to intersperse heavier physical tasks with less physically demanding tasks, at frequent intervals throughout each shift.
54There is nothing in the report that identifies that Mr Hennessy had relevant information concerning if, or how, there was an allocation of the array of tasks performed by the plaintiff throughout the course of a shift. The opinion fails the factual basis rule. Moreover, even if it be the case that his knowledge should be assumed or presumed, I agree with the submissions made by Mr Storey, that the observation does not constitute the expression of specialised knowledge in a specialised field.
55At paragraph 7.13 of his report, Mr Hennessy expresses his opinion that "In practical terms this means alternating between ‘checkout rooms’ and ‘stay rooms’ as far as practicable; and to vary the tasks within each room." Mr Hennessy has not disclosed if he inquired of the frequency of the different type of rooms cleaned during a shift by the plaintiff, or whether, for example there is an ideal split between the two, and whether such a split was required for each shift or over a period of different shifts. He has not addressed at all, the many tasks the plaintiff explains that she was required to carry out during a shift, and of course, he has not spoken to the plaintiff about any of the activities undertaken by her in the execution of her duties associated with either a stay or a check out room. There is no evidence of any disclosure of facts upon which his suggestion is consistent with, or inconsistent with, how the plaintiff went about her tasks.
56Under the heading “Reducing risk by instruction and training in safe working procedures”, Mr Hennessy first copies regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 that address control of risk. At paragraph 7.16 Mr Hennessy sets out the second enquiry asked of him on which to express an opinion, namely:
In light of the risk/s posed by the task (if any), what measures were open to the Defendant to avoid or minimise the risk of injury? Please have regard to:
a. The system and method of the task;
b. Identifying the task (through assessment, review or audit) as comprising a risk of strain injury with the prospect of earlier intervention;
c. Hazard identification and adequate review of risk control measures;
d. Instruction and training on safe working procedures relating to the task;
57Mr Hennessy then says that a, b and c, have been addressed earlier his report. For the reasons I have endeavoured to express, on no view of the contents of his report has Mr Hennessy in earlier sections addressed a, b and c, by reason of the exposition of specialised skill or knowledge “by identifying the system and method of the task”.
58The balance of Mr Hennessy's report was addressed to d, that is “instruction and training on safe working procedures relating to the task”. Mr Hennessy wrote that "As is typical for most workers, Ms Deng needed to be provided with information about (a) what she was expected to do in her job, and (b) how to do it safely".
59Next, Mr Hennessy referred to a "circumstances report" that included:
Bobby Lu has also provided us with the training manual, which unfortunately is in Chinese (refer to attachment 3). Bobby Lu could not provide any documentation of the Worker signing an acknowledgement that she had read and understood the training manual.
60The defendant says that it is unable to lead evidence that the plaintiff was provided with a training manual and, second, the plaintiff said she was not provided with any documents at all in her employment. Absent Mr Hennessy being able to comment on the contents of any manual the defendant may have supplied at some point in time to some other workers, he is unable to offer an opinion on the adequacy of its contents, or to suggest that had it been provided, it would, by its contents on the two matters he says typically all workers require - namely information about what the plaintiff was expected to do in her job and how to do it safely – been either sufficient or insufficient to have reduced a risk associated with the task.
61Moreover, Mr Hennessy does not suggest that in order to discharge his two "typical imperatives", this can only be achieved by a training manual as opposed to, for example, oral instruction and demonstration. Tellingly, Mr Hennessy states at paragraph 7.21 of his report that:
The training provided to Ms Deng was on-the-job hands-on training. I do not know if this included any instructions about hazardous manual handling, and how to reduce any associated risks.
62Having previously reported that the provenance of any training manual was not known to him, at paragraph 7.20 of his report, Mr Hennessy refers to documents he was provided by the plaintiff's solicitors that included "Training manual of Hotel Housekeeping". He went on to say, “My understanding is that this may be an English translation of a Mandarin instruction manual. I received a document in what may be Mandarin, a language in which I have no written or oral communication skills”.
63At paragraph 7.22 of his report, Mr Hennessy reproduces the training manual document commencing page, that refers to its purpose which is to "Specify the standard of work by housekeeping and the procedures to be followed”. The training objectives listed are:
Room cleaning
Room checking
Bed Clean-up
OH&S
Training process consists of 4 sections: each section is to be completed in one season
64At paragraph 7.23, Mr Hennessy includes an extract from a section of the training manual for making beds that includes:
Practising occupation health and safety procedurals [sic] when making a bed, make sure bending at the knees rather than at the waist.
65Addressing the instruction of bending of the knees, Mr Hennessy at paragraph 7.26 of his report, says:
Bending the knees is a well-recognised general principle for reducing forward flexion of the spine.
66However at paragraph 7.27, Mr Hennessy says:
However, bending the knees is not practical in tasks where the worker's knees are adjacent to a vertical surface, for example, while unloading a product bin, or - in this case - while making a bed. In such tasks, bending the knees moves the worker's spine and shoulders further away from what they are handling, thus increasing leverage on the spine and shoulders, which in turn increases the risk of back or shoulder injury.
67At paragraph 7.29 of his report, Mr Hennessy expresses an opinion, “pulling the bed is a high-risk task because of the high force, and because of the awkward posture, namely reaching down almost to floor level while attempting to exert horizontal pull force. If the person does not pull horizontally, the pull force will be greater.” There is no evidence of or disclosed assumption by Mr Hennessy that the plaintiff was reaching down almost to the floor when moving a bed.
68At paragraph 7.30 of his report, Mr Hennessy says:
The squatting position to pull the bed prevents the powerful leg muscles from being used to exert force, placing more force on the back and shoulder muscles, tendons and ligaments, and other soft tissues. If the person could stand up straight while pulling the bed, they could lean back slightly and exert force with their legs. This would reduce the risk of shoulder or back injury. One way to do this is with a simple, purpose designed hand tool, as discussed later in this Section.
69There is no assumed fact disclosed by Mr Hennessy of how the plaintiff squatted each day or on the days of the alleged falls, rendering the utility of his suggested tool problematic. At paragraph 7.31 of his report he goes on to say:
The main areas of the body exposed to risk for moving beds are the back, shoulders and knees. I base my opinion on my knowledge and experience of manual handling and the human body.
70The fact of the existence of a risk exposure does not call for expert opinion evidence, but even if it did, the opinion goes nowhere in elucidating the application of observed or presumed facts to an application of specialised knowledge in order to eliminate or mitigate the risk of the same.
71At paragraph 7.32 of his report, Mr Hennessy refers to the plaintiff's answers to the defendant's interrogatory number 13 on the method the plaintiff used to pull and push beds. Mr Hennessy then observes that the plaintiff's description of it was uncertain as to whether she bent at her knees, and her evidence was unclear what part of the bed she grasped in order to pull it.
72At paragraph 7.33 of his report, Mr Hennessy has regard to the plaintiff's answer to the defendant's interrogatory number 24, in which she identified the items of furniture that she was required to move in guest rooms.
73Mr Hennessy next proceeds to offer an opinion that “in order to pull a bed that does not have a bed-head or foot attached to it, it is normally necessary to grasp part of the base of the bed.” He says that in his experience, this is relatively low down on typical hospitality beds, which he thought would render the task hazardous because of:
(a) the extreme bending to grip with the hands at about 200 mm above floor height (estimated based on my experience with checking under hotel beds for items that may otherwise be left behind on departure), combined with (b) postural instability while exerting a force against an unpredictable resistance in that posture.
74The opinion depends on heights of beds the plaintiff worked on about which course Mr Hennessy has not disclosed he had knowledge. At any rate, the opinion would be apt to mislead if not confuse the jury given his opinion about the use of castors to reduce risk and the plaintiff’s evidence that the beds had castors. Together with his belief that the plaintiff used her knees to move beds and what he characterised as the equivocal nature of the plaintiff's account given her answer to interrogatory number 13, the opinion is of questionable value.
75Next, at paragraph 7.34 of his report, Mr Hennessy says that in his opinion “moving and/or changing beds was acknowledged by authorities, and by the Defendant, to involve a potential risk of musculoskeletal injuries.” He says that this acknowledgment is consistent with his opinion, based on his specialised knowledge and professional experience.
76In my judgment, paragraph 7.34 is riddled with evidentiary vices because even assuming the same to be so, at paragraph 7.21 of his report, Mr Hennessy acknowledges that the plaintiff was provided with on-the-job hands-on training, but then says that he was unaware if this included any instructions about hazardous manual handling and how to reduce any associated risks. Thus, his opinion is incomplete in an important respect, and rests on an incomplete and unsubstantiated premise. Moreover, as I alluded to earlier, Mr Hennessy proceeds to opine that “It appears that she pushed beds with her knees, which is generally recognised as a way of reducing the risk of back injuries during bed pushing”. Despite not knowing what comprised the instruction or demonstration of hands-on training provided by the defendant to the plaintiff, and having acknowledged that it appears that the plaintiff pushed beds with her knees, which Mr Hennessy says is a recognised way of reducing the risk of back injuries when pushing beds, he then suggests that the only countermeasure that the defendant took in relation pulling beds, appears to have been a vague and impractical instruction to "make sure bending at the knees, rather than at the waist".
77At paragraph 7.39, Mr Hennessy addresses means to eliminate risks associated with moving a bed. He postulated permanently positioning a bed and any adjacent furniture in such a way that the bed may be made without pulling it, and he suggests castors on bedside furniture so it could be moved easily away from the bed. As explained, the beds had castors. How it may be thought that some adjacent bedside furniture that did not have wheels, but that the beds did, might otherwise inhibit the ability to move a bed is not explained. Because an indeterminate number of rooms had changes to them, he is unable to identify the type of bedside furniture, their weight and dimensions, and this applies to other items of furniture as well.
78At paragraph 7.42 of his report, Mr Hennessy suggests that an exposure to injury may be the method of tucking sheets in the way described as “hospital corners” or “army corners”, but there is no evidence by the plaintiff of her having used such methods.
79As to the need to clean under a bed by vacuuming, and the moving of a bed to do so, Mr Hennessy suggests that this could be achieved by a vacuum with a low-profile wand and a tool, or by deploying a second worker to pull the bed or to clean under the bed less frequently. Mr Hennessy does not identify if he had any knowledge of the vacuum used, but he has already said that the bed on castors was a means of reduction in risk, and that, “Normally the bed can be returned by pushing rather than pulling, and this is ideally done with the knees, not the hands, based on my professional experience”. Mr Hennessy earlier observes that this was indeed a means he understood the plaintiff utilised when he wrote, “it appears that she pushed beds with her knees, which is generally recognised as a way of reducing the risk of back injuries during bed pushing”.
80Despite the fact that Mr Hennessy does not address the many other tasks the plaintiff performed during her cleaning exercise, it may be taken from information he received by way of documents provided by the plaintiff’s solicitors, and the interrogatories with which he had been provided, that he understood that the plaintiff had been involved in other activities but unhelpfully his report does not engage with them.
81Lastly, and by relying on the contents of the “guidance material” earlier identified and relied on in formulating his opinion of risk and remediation of the same, he says that this guidance material referred to:
reducing the force to move the bed by fitting and regularly maintaining appropriate castor wheels, including lockable wheels. This enables the bed to be moved easily when needed, but to be locked in place to prevent the bed being inadvertently moved by guests the rest of the time
82The utility of this opinion is negated by his comment that, “I do not have any information about the characteristics of the castors on the beds moved by Ms Deng".
83The balance of the opinion includes the possible use of:
…a simple hand tool which could hook around a castor wheel, and enable the worker to pull the bed without bending down and/or squatting, the advantages of which posture have been discussed earlier in this Section. This could have a T-bar handle to enable the worker to pull with both hands and with straight arms, thus allowing optimum posture and force to be applied. This would reduce the risk of injury, in my opinion, and would be affordable. Such pulling tools - often designed in-house - are common in industry for reaching and pulling difficult-to-reach items, in my experience.
84The reference to a tool is a supplementary opinion, when one has regard to the position expressed by Mr Hennessy in relation to the castors themselves constituting a sufficient mechanism in some instances, and the plaintiff’s admission in her interrogatory to the use of her knees.
85Another risk reduction approach identified by Mr Hennessy, is to have installed floor coverings that were easy to push or pull wheeled equipment on. He said that:
Based on my experience of having undertaken more than one thousand measurements of push forces to move wheeled equipment on carpets (mainly in relation to aged care workplaces), I am able to say that there is a large variation in resistance to movement between different floor covering products, due to either or both of the pile thickness and/or the cushioning on the underside of the carpet. There are some products, including commercial carpets, which provide relatively low resistance to pushing. I do not have any information about the type of floor covering at the Defendant’s premises, or about its resistance to moving beds.
86Mr Hennessy’s opinion sets up a straw man theory, the efficacy of which in any event, is diminished by the absence of any information that Mr Hennessy had available to him in order to render the observation any more than speculative. He was unable, for example, to undertake any testing of friction resistance of floor coverings.
87In my judgment, Mr Hennessy's report offers no more than a recitation of legal obligations and recommendations derived from secondary materials the efficacy of which Mr Hennessy has not engaged with, in order to apply to, or disclose his own scientific reasoning or learned expertise in regard to these issues. In that regard, I refer to Rees v Lumen Christi Primary School.[9]
[9] [2010] VSC 514.
88In addition, even if the assumed facts were not contestable, and all of them had been disclosed, as opposed to assumed by Mr Hennessy, the report provides no, or no sufficient basis, to admit of the requirement for the expression of specialised knowledge in a specialised field. It is a relevant fact that the trial of this proceeding is before a jury. In Clark v Ryan,[10] Dixon CJ held that an expert is not entitled to give opinion evidence on matters the jury was capable of deciding for themselves. In short, if the jury accepts the plaintiff's evidentiary account, they will bring their common sense in assessing if the common law obligation to provide a safe workplace and system of work, and the obligation under regulation to identify risk, control risk, and eliminate or reduce the same as far as is practicable, has been met by the defendant.
[10] (1960) 103 CLR 486 at 492.
89Thus, for the reasons expressed, and based on the principles that have been distilled from case law as applied to the Evidence Act, I am not satisfied that the questions to be decided by the jury involves a field of specialised knowledge, and thus in its entirety, or in its redacted form, the report is inadmissible. I respectfully adopt the exposition of principle expressed by Heydon J in Dasreef, referred to earlier. I am also not satisfied the field of knowledge in which the expert professes expertise, is a necessarily recognised body of knowledge that would be in the circumstances of this case, outside the ordinary experience of women and men. Neither am I satisfied that such expertise as Mr Hennessy possesses would assist the jury.
90I am also not satisfied the report complies with the factual basis rule. I am also not satisfied the report is wholly or substantially based on Mr Hennessy’s expertise and specialised knowledge, but that if it is, then he has not exposed his reasoning to assumed or observed or provable facts.
91If contrary to my finding, the proposed opinion evidence sought to be led from Mr Hennessy does satisfy s 79(1) of the Evidence Act, then I find that my discretion to exclude the evidence is enlivened under s 135 and that in my discretion, I exclude the evidence under s 135. My discretion to exclude the evidence is enlivened if the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing. In this case, Mr Hennessy's opinion merely reflects facts he has assumed. The jury's task is to assess these facts for itself - as shown by the particulars of negligence referred to earlier in these reasons. These assumed facts are the very facts that the jury will be asked to find in considering the allegation of negligence or breach of statutory duty.
92The task of a Court in applying s 135 of the Evidence Act has been described as a balancing exercise.[11] It is one where the probative value must be weighed against several dangers. I find that Mr Hennessy's evidence would have little probative value, even if admissible.[12]
[11] See Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397.
[12]Ibid at [10] per Black CJ, Emmett and Middleton JJ: “probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
93I find that it is substantially outweighed by the danger that his evidence might be misleading or confusing to the jury. In my opinion, the jury will not be assisted by the purported expert giving evidence squarely upon ultimate facts in issue.
94For those reasons, the report - whether in the original form or the form sought to be put before the jury today in redacted form - is inadmissible. I will cause my reasons for ruling to be published to the parties in due course.
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