On 3 November 2016, I provided my ruling with regard to a dispute about the admissibility of the report of Mr Ian Burn of 22 October 2014, which became plaintiff's exhibit A on the voir dire (VD ex PA). I indicated to the parties that I would provide my reasons for that ruling on the first day of the recommencement of the substantive hearing. This judgment constitutes those reasons.
Background
The context of the dispute may be shortly stated. On 26 May 2011, the plaintiff was working as a formworker at a building site in Redfern. He was working on an elevated platform manipulating falsework, which are pieces of timber that have been put in place to permit concrete to be poured constituting the floor above. He slipped and fell from that elevated position, suffering serious injuries.
He has taken proceedings against the first defendant, Workers Compensation Nominal Insurer (which is the insurer for the employer of the plaintiff), the second defendant (which was the head contractor and in charge of the building site), and the third defendant (which was the subcontractor that supplied the second defendant with formworkers for the building site). Each of the defendants disputes liability for the injuries suffered by the plaintiff.
Position of the plaintiff
During the receipt of submissions about the admissibility of VD ex PA, senior counsel for the plaintiff made a number of concessions.
First, he accepted that, despite the operation of s 60 of the Evidence Act 1995 (NSW), many of the statements made to Mr Burn and recounted in his report, should not be admissible for a hearsay purpose; in other words, he accepted that their effect should be limited by s 136 of the Evidence Act.
Secondly, the transcript shows that he did not press two portions of the report in which Mr Burn ventured to express an opinion about whether impact by a human body with different surfaces would cause greater or lesser injuries, on the basis that Mr Burn is not medically qualified or experienced.
Apart from those concessions, however, senior counsel submitted that the report is relevant (s 55 of the Evidence Act); falls within s 79 of the Evidence Act; and is not liable to exclusion on any other basis.
Submissions of the first, second and third defendants
Counsel for the second and third defendants helpfully provided me with detailed written and oral submissions setting out his objections. Senior counsel for the first defendant adopted those submissions.
Counsel for the second and third defendants explained that his objections are founded on a number of over-arching propositions.
The first is that the purported expert opinions expressed in VD ex PA do not comply with s 79 of the Evidence Act. The second was that the document does not comply with r 31.27(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), in that it did not adequately set out the reasoning upon which the proposed opinion evidence was based.
In that regard, a global objection was taken to the document as a whole, on the simple basis that the report repeatedly fails to set out the reasoning upon which Mr Burn came to the opinions that he has expressed. That had the effect, it was submitted, that one could not determine whether or not the opinions expressed were based upon the "training, study or experience" of the proposed witness, as required by s 79 of the Evidence Act.
Separately, counsel provided me with a detailed analysis of each of the "sub-opinions" expressed in the document. Without reciting them seriatim, it was said that some of the statements or opinions of Mr Burn were irrelevant (and therefore did not comply with the basal rule of admissibility to be found in s 55 of the Evidence Act); many of the opinions were not "wholly or substantially" based upon the training, study or experience of the witness; and that there was a repeated failure to provide reasoning for the opinions expressed therein.
Separately, it was said that extracts from the Occupational Health and Safety Act 2000 (NSW), and the Occupational Health and Safety Regulation 2001 (NSW) (both of which, it may be noted, were repealed in 2012 by s 276C of the Work Health and Safety Act 2011 (NSW)) were not anchored to any other part of the report: they simply appear within the document unexplained.
Finally, I was taken to the decision of Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77. In that case, a report by Mr Burn was found by the Court of Appeal to have been wrongly admitted at trial. It was said that the reasoning of the Court of Appeal in that case applied by analogy to my determination in this case.
Determination
I respectfully reject all of the submissions made by counsel for the second and third defendants, and adopted by senior counsel for the first defendant. That is so for the following reasons.
First, consideration of the curriculum vitae attached to the report of Mr Burn and the summary (at para 3 on p 1 of his report) of the experience upon which his opinions are based, shows the following.
He holds a Bachelor's Degree in Civil Engineering. He holds a Master's Degree in Engineering Science. He has completed many short courses relevant to safety on building sites. He is a member of a number of learned organisations connected with construction. He has professional experience as a building engineer, extending for a period well over three decades.
In short, Mr Burn undoubtedly has the training, study and experience to express opinions about building sites generally, common practice on them, and practices on them that are safe and unsafe. His training, study and experience with regard to such topics extends far beyond that of a lay person sitting as a tribunal of fact (whether as a member of a jury or a judge sitting alone), who may never even have ventured onto such a site.
Secondly, to the extent that portions of the report speak of common practice on building sites, and of events that have been known to occur on building sites, I consider that Mr Burn is perfectly permitted to give evidence of such matters, based upon his longstanding practical experience. They are not matters that require elucidation by reasoning. Rather, they are observations that he has made over many years of exposure to such worksites.
Thirdly, I do not accept that any sub-opinion in the document, or the over-arching opinion, is not based on sufficiently revealed reasoning. To give but one example, at the bottom of p 3 of his report Mr Burn in summary states that he had been told that the plaintiff was working on a platform constructed of formply. He goes on to say that formply is constructed with coatings designed to stop poured concrete adhering to the surface of the formply. That is done not only to improve the finish of the concrete, but also to permit the formply to be stripped from the concrete after the latter has "cured" (that is, set).
Mr Burn goes on to say "any surface that is designed to facilitate stripping and prevent adhesion of fresh concrete as it cures is going to be potentially slippery under dry conditions[,] slippery under wet conditions".
Contrary to the objection, I do not accept that it was incumbent upon Mr Burn to provide further reasoning for the proposition that smooth surfaces when dry do not generate great friction, and that when wet they are slippery. Indeed, I respectfully think that that is so obvious a proposition that no reasoning need be provided for it, pursuant to s 144 of the Evidence Act. And as the High Court of Australia made clear (admittedly in the different context of an exceptionally brutal multiple murder) in Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 at [82], an expert witness is not prohibited from founding or partly founding his or her opinion on the well-known rules of physics such as gravity, momentum, inertia, and the like.
In similar vein, Mr Burn expressed the opinion at para 6 of p 4 that, on the assumption that the formply upon which the plaintiff was allegedly standing was wet, "the risk of slipping on the wet formply surface in the assigned work area therefore was not being avoided". Again, such a statement borders on common sense; as I have said above, it is not inadmissible for that reason. I reject not only the submission of counsel that that opinion had no relevance to the issues that I must decide, but also the submission that it does not fall within s 79 of the Evidence Act.
I shall not tarry to engage further with the detailed analysis with which I was provided. Suffice to say, I consider that the entirety of the contents of the report of Mr Burn is either: a setting out of his training, study and experience; a summary of the materials with which he was provided; a summary of the assumptions that he was asked to make; a statement of his experience of practices and events within the building industry; and expression of various opinions, the reasons for which are amply revealed, very often because they are founded upon incontrovertible laws of physics or human experience.
Two matters remain to be resolved.
The first is that it true that extracts from the Occupational Health and Safety Act, and the Occupational Health and Safety Regulation appear in the report without them being linked to any opinion expressed by Mr Burn. But that is of no great moment: senior counsel for the plaintiff would be entitled to place those statutory instruments (and indeed, any other legislation or regulation, or other legal material) before me as a matter of law.
Finally, analysis of Murray v Sheldon Commercial Interiors Pty Ltd shows that that was a very different case. In particular, at [22]-[23] of the judgment it is made clear that the assumptions upon which Mr Burn had expressed his expert opinions in that matter were different to the evidence in the trial, and the findings of the primary judge. For that reason alone, the opinions were of no weight.
And in any event, great caution must surely be exercised in reasoning by analogy with regard to questions of admissibility from judgments in other matters. Inevitably, such questions very much turn upon their own facts.
Order
It is for the foregoing reasons that on 3 November 2016 I provided the following ruling:
1. The entirety of the pressed portions of the report of Mr Ian Burn of 22 October 2014 is admitted, subject to the limitation agreed on 12 August 2016.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 December 2016
Parties
Applicant/Plaintiff:
Kabic
Respondent/Defendant:
Workers Compensation Nominal Insurer
Legislation Cited (5)
Occupational Health and Safety Act 2000(NSW)
Occupational Health and Safety Regulation 2001(NSW)