Abid v Onur Pty Ltd & Ors

1. Onur Pty Ltd ("the employer") and Kaplan Built Pty Ltd ("Kaplan") made no submissions as to the admissibility of the report of Dr McIntosh.
2. At the conclusion of the parties' submissions, I ruled that:

(a) the opinions expressed by Dr McIntosh were matters of expertise beyond the normal understanding of the jury;

(b) Dr McIntosh had the qualifications, training and experience to proffer the opinions he did;

(c) his opinions were wholly or substantially based on his qualifications, training and experience; and

(d) matters in relation to the circumstances of the fall were put to the relevant medical witnesses, and consequently there was not a valid Browne v Dunn[2] point to be made.

1. In order not to delay the trial, I indicated to the parties that I would publish my reasons for that ruling at a later time. These are my reasons.

1. The principles applicable to the admissibility of opinion evidence are well established and were not in dispute. As the objections taken to Dr McIntosh's report were in narrow compass, it is only necessary to set out the relevant principles briefly.
2. The relevant sections of the Evidence Act 2008 (Vic) are as follows:

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

1. 79 Exception - opinions based on specialised knowledge

(1) 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.

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

1. In Parrish v Specialized Australia Pty Ltd (Rulings),[3] John Dixon J summarised the four 'rules' identified by Heydon J in Dasreef Pty Limited v Hawchar[4] relevant to determining the admissibility of expert opinion evidence:

(a) is the opinion relevant (or of sufficient probative value);

(b) has the witness properly based 'specialised knowledge' (the expertise rule);

(c) is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule); and

(d) 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 expert's opinion is founded 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)?"

1. The onus to establish admissibility rests on the party seeking to adduce the evidence.

1. In 1984, Dr McIntosh was awarded a Bachelor of Applied Science from The University of Sydney. Between 1984 and 1990, he practiced as a physiotherapist.
2. In 1991, he was awarded a Master of Biomedical Engineering from The University of New South Wales. His doctorate was awarded in 1995 from The University of New South Wales on the topic: The biomechanics of head injury and pedal cycle helmet performance.
3. At paragraphs 6 to 12 of his report, Dr McIntosh summarised his training, study and experience. He noted that he had applied his expertise in a number of areas, including the study of injury causation, the study of safety systems and devices, crash and accident investigation, gait in normal and special populations, and sporting skills. Dr McIntosh has researched, studied and/or examined:

(a) Biomechanics of impact injury;

(b) Falls - causation, prevention and injuries;

(c) Human movement;

(d) Slips and trips;

(e) The causes and contributing factors to incidents and accidents;

(f) Anthropometry.

1. His extensive curriculum vitae, dated September 2024, was tendered in the application. This included the major research he has completed, his publications, refereed journal publications, conference papers, selected research reports, keynote conference presentations, and his teaching and academic service. He has authored over 250 publications on topics such as motorcycle and bicycle crash investigations, helmet performance in sport and transport, rollover crashes, train crash and railway incident investigation, human tolerance to impact, and human movement.
2. Dr McIntosh is the director and principal of McIntosh Consultancy and Research Pty Ltd. He has held that position since 1999. In that role, he has consulted to Safe Work Australia, WorkSafe Victoria, the Victorian Department of Infrastructure, Transport for New South Wales, VicRoads, the International Rugby Board, International Olympic Committee, Racing Australia, the Australian Football League and many other organisations. He has provided expert testimony in coronial, criminal, civil and human rights jurisdictions and a special commission of inquiry.
3. He is an Adjunct Associate Professor (Research) at the Monash University Accident Research Centre.
4. Dr McIntosh is the chair of the Australian Standards Committee and the International Standards Organisation Working Group responsible for revising the occupational protective helmet standards. He noted:

"... As part of the revision, we introduced methods to improve the protective performance of helmets on construction sites related to falls from low heights and elevated positions. In these roles, I have had a focus on examining hazards, risks and controls for falls in the workplace. I have examined and researched falls, including workplace falls, and fall prevention methods and standards."

1. In summary, Dr McIntosh opined it was not possible for Mr Adib to have fallen through the gap to the ground based on gap dimensions of 240 millimetres, and Mr Adib's body dimensions.
2. Further, it was his opinion that Mr Adib's injuries were not consistent with the alleged fall. Dr McIntosh identified that the ambulance records noted Mr Adib's reports of pain, but recorded no observed bruising/haematoma. The Royal Melbourne Hospital records noted no head injury reported, CT normal; there were no acute fractures and no malalignment of the cervical spine, no neck pain, bilateral 5/5 power in the upper limbs with no paraesthesia. The "clinical synopsis refers to pins/needles along the right hand"; lower back pain was reported, bilateral 5/5 power in the lower limbs, and imaging showed a right L5 pars defect without spondylolisthesis; no evidence of trauma to the thorax and no fractures; no evidence of trauma to the abdomen and no abdominal injuries; no evidence of trauma to the pelvis and no fractures; no evidence of trauma to the upper limbs and no fracture to the right wrist; no evidence of trauma to the lower limbs, right hip flex/extension limited by pain; no external signs of trauma; soft tissue injuries.
3. Dr McIntosh assumed Mr Adib was 180-185 centimetres tall and 79-80 kilograms in weight. He used Pheasant's anthropometric data to determine Mr Adib's likely range of lateral and anterior-posterior dimensions, to conclude it was very unlikely that Mr Adib would move through a gap of 240 millimetres as Mr Adib's main body dimensions would have most likely been at least 240 millimetres. Dr McIntosh opined that Mr Adib would most likely have become stuck in the gap if he had slipped into the gap area.
4. Dr McIntosh opined that Mr Adib's injuries were not consistent with his body interacting with the scaffolding or building during the slip or fall.
5. Dr McIntosh opined as to the likely body movements if Mr Adib had slipped on the scaffolding, and how he would have landed in various scenarios.
6. Dr McIntosh identified the physical injuries he would anticipate being sustained if Mr Adib fell 3 metres, landing on his feet, and alternatively landing on his side. He opined as to the likely speed of an uninterrupted fall of 3 metres.
7. If Mr Adib landed feet first, he would likely have suffered fractures/dislocations or joint ligament injuries, and would then have fallen to the ground, suffering additional injuries as his upper body and head impacted the ground.
8. If Mr Adib landed on his side, the probability of having no external signs of trauma and no bony injuries was very low. A fall height of 2 metres or greater increased the risk of a range of serious to critical injuries. Falling onto his side, Mr Adib would likely have suffered at least moderate head injuries, including external signs of impact, as well as thoracic injuries and superficial injuries.

1. Counsel for Icon submitted Dr McIntosh had specialised knowledge in biomechanics, human factors, ergonomics, injury prevention, falls and anthropometrics. The theme to the majority of his work was safety and injury prevention. He was ideally qualified to express the opinions he expressed.
2. Counsel submitted that it is not correct to suggest that only a medically qualified expert could comment on injury per se. Biomechanical engineering is a discipline applying engineering principles to medicine and biology. Dr McIntosh is highly qualified to opine upon matters of physical injuries in falls and bodily mechanics. In particular, Dr McIntosh has been involved in numerous studies focussing on head injuries specifically, and is a leading expert in that regard.
3. Counsel submitted that all relevant doctors were cross-examined about the injuries, and absence of injuries recorded in the contemporaneous records.

1. Senior Counsel for Mr Adib submitted that Dr McIntosh had no medical qualifications or experience of any type. His opinions:

(a) that Mr Adib could not have fallen through the gap to the ground, and that his injuries were not consistent with the alleged fall;

(b) that the probability of surviving an uncontrolled whole body impact arising from a fall of 3 metres onto the ground with no external signs of trauma, no body injuries, rib or limb fractures is very low;

(c) as to the injuries which would likely have been sustained in such a fall;

each required medical expertise which Dr McIntosh did not possess. Therefore, the opinions were not wholly or substantially based on specialist knowledge.

1. Additionally, Senior Counsel for Mr Adib submitted that Dr McIntosh's opinions should have been put to the medical witnesses. They were not. For that reason alone, it should not be permitted.

1. Mr Adib's alleged fall was not witnessed. That is, the only account of the means by which he came to be on the ground, having been on the first floor of the scaffolding, was Mr Adib's account. Mr Genc, who was present, did not observe him fall.
2. Mr Adib had given differing accounts of the manner of his fall, and the way he landed on the ground prior to trial, and during his evidence.
3. An issue in the proceeding was whether it was possible for Mr Adib to have fallen as he alleged through the gap between the scaffolding and the building.
4. A further issue was the nature and extent of the injuries Mr Adib sustained, and whether such injuries were consistent with the mechanism/s of the fall he described.
5. The objections taken to the admissibility of Dr McIntosh's opinions were narrow.
6. I find that Dr McIntosh is highly qualified and experienced in biomechanics, human factors and ergonomics, injury prevention, safety, human movement and sport, and anthropometrics.
7. I find that Dr McIntosh has the appropriate expertise to opine as to the relevant anthropometric data and the likelihood of Mr Adib having fallen through a gap of 240 millimetres as alleged. Further, Dr McIntosh has the appropriate biomechanical, ergonomic, safety and human movement expertise to opine as to the likely body movements if Mr Adib slipped and fell from the scaffolding, and to opine as to the injuries which would likely be sustained in such a fall.
8. I therefore find that the opinions Dr McIntosh propounded were wholly or substantially based on his specialised knowledge.
9. I find that the opinions expressed by Dr McIntosh are not upon matters which are within the ordinary understanding of the jury.
10. Relevant matters regarding Mr Adib's injuries were put to each of the appropriate medical witnesses called by Mr Adib. In my view, there was no breach of Browne v Dunn[5] established.

1. Dr McIntosh's report dated 2 June 2025 is admissible.

[1] Adib v Onur Pty Ltd and Ors (Ruling No 1) [2025] VCC 938

[3] [2020] VSC 15 at paragraph [25]

[4] [2011] HCA 21; (2011) 243 CLR 588