Nair-Smith v Perisher Blue Pty Ltd

Supreme Court of NSW|2012-09-10|Before: Beech-Jones J, Gary J

Judgment 1Senior Counsel for the defendant, Mr Maconachie QC, has objected to the admission of the entirety of the opinion evidence given by an engineer and ergonomist engaged on behalf of the plaintiff, Mr Mark Dohrmann. He submits that it has not been established that Mr Dohrmann's opinions are wholly or substantially based on specialised knowledge which is in turn based on Mr Dohrmann's training, study or experience within the meaning of s 79(1) of the Evidence Act 1995.

Background 2To address this objection it is necessary to explain Mr Dohrmann's evidence and its potential relevance in more detail. 3The plaintiff sues the defendant as the owner and operator of a ski lift at the Perisher snow fields. The plaintiff was injured while attempting to mount a triple chair operated by the defendant on 18 July 2003. She alleges that the circumstances of her injury involved negligence on the part of the defendant. At the relevant time one of the defendant's lift operators was in the vicinity of the plaintiff and her two companions as they were waiting to be seated on the chair lift. It is common ground that, as the chair was approaching them, its safety bar was in the down position. As the plaintiff and her companions were standing with their skis facing in the direction the chair was travelling, it was necessary for the lift operator to "bump" the safety bar up and allow them to be seated on the chair safely. 4In short, the plaintiff contends that the lift operator was not paying proper attention and only noticed that the safety bar was down very late. The plaintiff contends that he grabbed the chair by pulling it back and to the side which had the effect of altering its alignment. This is said to have caused the side railing of the chair to come into contact with the plaintiff by striking her from behind in the groin area as she scrambled to be seated. While it is not in dispute that the plaintiff was struck in the groin and that the lift attendant raised the safety bar manually before the plaintiff and her companions were seated, the defendant strongly disputes the balance of the plaintiff's case as to how her injury occurred. 5Even on this brief and incomplete description of the circumstances of the accident and the parties' respective positions it is apparent that a number of questions arise as to the mechanical operation of the chair lift, the appropriateness of the defendant's procedures and instructions to its lift operators in dealing with the circumstance of a safety bar being down as well the conduct of the lift operator at the time of the accident.

The Tender and the Hot Tub 6On the seventh day of the hearing, senior counsel for the plaintiff tendered four reports from Mr Dohrmann. They were admitted, along with that part of the joint report from all the experts on liability which recorded Mr Dohrmann's answers to certain questions (see below), subject to the objection being taken by the defendant as to his qualifications to opine on the matters stated. This approach was adopted with the agreement of the parties because what is known as the "hot tub" method of examination was to be utilised for the receipt of oral evidence from the experts on liability including Mr Dohrmann. As part of that process Mr Maconachie QC asked various questions of Mr Dohrmann relevant to his objection. At the conclusion of the oral evidence Mr Maconachie QC made submissions in support of his objection and the plaintiff responded in writing. Although the evidence has been received and the trial is continuing it appropriate for me to rule on the admissibility of Mr Dohrmann's evidence prior to the close of the plaintiff's case (see Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [123] per Heydon J). Mr Dohrmann's Expertise and Reports 7Mr Dohrmann's resume reveals that he has a Bachelor of Mechanical Engineering and what is described as a Graduate Certificate in Human Engineering (Ergonomics). He is a member of the Institute of Engineers of Australia and of the Ergonomic Society of Australia. His resume includes the following: "[Mr Dohrmann] is a consulting engineer and ergonomist who has worked in occupational health and safety since 1976. His engineering skills are applied to devising inventive solutions to difficult workplace problems involving ergonomics, workplace design and injury prevention. His clients include corporations, government departments, local government authorities, unions and private companies. Since 1978 he has inspected and advised on injury prevention and risk management in several hundred establishments, and has trained over five thousand people in safety. A recognised authority on overuse strain injury, he has provided expert evidence in over 6000 legal cases since 1978. He has publications in the fields of ergonomics, visual display terminals, safety and office planning. [Mr Dohrmann]'s tertiary education was at Loyola College (classics, history), Campion College (philosophy) and Monash University (engineering). Trained in the control of explosives, electrical and radiation hazards, he worked first as an exploration engineer in the oil and gas fields of France, the Algerian-Sahara and northern Italy. Following further studies in ergonomics, [Mr Dohrmann] was appointed lecturer in Ergonomics at Lincoln Institute of Health Sciences, Melbourne (now La Trobe University). He directed the post-graduate ergonomics program (1975-1981), completing consulting assignments in the design of special play equipment for retarded children, industrial professional training in ergonomics, and the resolution of industrial health and safety issues. [Mr Dohrmann] is a frequent speaker on the ergonomic aspects of health and safety. He has travelled on assignments through the U.K., Europe, United States and China to study and lecture on industrial and occupational health and safety. He has designed management information systems, including original software, in the area of injury and accident analysis, and has received two national awards for technical communication and instruction. His interests include strain injury prevention, adult education and the technical needs of people with disabilities. On the Queen's Birthday 1994, [Mr Dohrmann] was awarded the Order of Australia." 8The Oxford Dictionary defines ergonomics as the scientific study of the efficiency of man in his working environment. Given that injuries and accidents involve significant costs no doubt this concept of efficiency includes a component of safety. 9Mr Dohrmann has provided four reports. It is difficult to ascertain from his reports what he was asked to opine upon, other than the circumstances of the accident generally and the reports served by experts retained by the defendant. No point concerning this was taken by the defendant. Ultimately the relevant issue is the admissibility of the opinion he expresses rather than the questions he was asked. 10Mr Dohrmann's first report is dated 20 November 2007. He did not inspect the chairlift prior to providing this report although he was provided with a significant amount of material and assumed facts. These are clearly identified in the report. The opinions he expresses in that report are set out in the heading "Discussion and Analysis". Subject to one particular matter to which I will return, I was not taken to any particular conclusion expressed in this section of his report with a view to demonstrating that it was not (or was) wholly or substantially based on his training, study or experience. The section contains a variety of observations. The critical conclusions appear to be in paragraph 7.10 in which he expresses the opinion that the injuries sustained by the plaintiff are consistent with the account of events that she gave. In paragraph 7.11 he identifies a number of measures the defendant could have taken to prevent exposing the plaintiff to the risk that eventuated on 18 July 2003. 11Mr Dohrmann's second report is dated 26 August 2008. This report supplements the first and followed his inspection of the chairlift and an interview with the plaintiff. It appears that his inspection involved him viewing the chair lift in operation although he was not able to stop the machine to make measurements or inspect it closely. The report explains the operation of the chair. One aspect of the explanation is the subject of particular criticism, and it is a matter to which I will return. The relevant opinions are set out under a heading entitled "Discussion". In that part of his report he discusses the plaintiff's version of events. He notes that his discussion is subject to various constraints notably that he was still not in possession of measurements of various aspects of the chair, including for example the chair's dimensions, its weight, the "pitch angle of the chair seat when it is hanging vertically without swinging", etc. Ultimately he concludes that he continues to hold the opinions he expressed in his first report. 12Mr Dohrmann's third report is dated 10 November 2009. This report was prepared following access being given by the defendant to the chair lift. A colleague of Mr Dohrmann's, who is also a professional engineer, took measurements and obtained photographs. Consequently, this report provides information concerning the measurements and characteristics of the chair, including for example its pitch, roll, seat height and speed, etc. Based on that information, he provides opinions concerning the capabilities and operation of the chair lift, and what the chair lift operator could or could not have done when confronted with a safety bar in the down position in the available time based on that quantitative information. 13Mr Dohrmann's fourth report is dated 30 June 2010. In that report he responds to, inter alia, a number of experts' reports served by the defendant. One of the reports to which he responds is a report from Mr Charles Needham, an engineer retained by the defendant. Mr Needham examined the sideways pendulum motion of the chair. His report is relied on by the plaintiff to demonstrate that, in the time interval between intervention by the lift operator and the chair striking the plaintiff, it was not possible for the chair to have moved off its alignment to her right and then swing back sufficiently far to her left to enable the right railing to strike her in the groin, assuming she had not moved as she stated in her evidence.

The Joint Report 14Pursuant to orders made by the Court, Mr Dohrmann participated in an expert conclave with experts retained by the defendant. The conclave resulted in minutes being prepared which recorded a series of questions posed for the experts and their answers to at least some of those questions including those of Mr Dohrmann (the "joint report"). 15Mr Dohrmann provided answers to questions 1.1 to 1.16 which concern characteristics of the chair lift machinery and the manner of its operation. He did not provide answers to questions 1.17, 2.2, 2.14 and 2.15 of that document and nothing further need be said about them. Mr Dohrmann also declined to answer aspects of questions 2.1, 2.2, 2.4, 2.5 and 2.6, which asked whether the conduct of a lift attendant in specific circumstances was "in accordance with accepted and international industry practice". However Mr Dohrmann did answer that part of those questions which asked whether such conduct was "reasonable". Mr Dohrmann also addressed questions 2.9 to 2.13 which concern the operation of the chair lift machinery and what would be expected of a lift attendant on the chair loading platform.

Submissions and Some Brief Principles 16In opposing the tender, Mr Maconachie QC referred me to the passage from the judgment of Gleeson CJ in HG v R [1999] HCA 2; 197 CLR 414 at [39]-[41] and in particular that part of the judgment at [41] in which his Honour concluded as follows in relation to the psychologist's report in that case: "On the contrary, a reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist." 17Similarly, Mr Maconachie QC submitted that Mr Dohrmann was only providing an "expert idiosyncratic personal subjective view" that was not wholly or substantially based upon his training, study or experience. Mr Maconachie QC made a number of particular points concerning Mr Dohrmann's evidence which I will address below. 18The plaintiff noted that Mr Dohrmann has a multitude of accreditations in addition to thirty years experience as a safety consultant. Her submissions described Mr Dohrmann as a consulting engineer and ergonomist who has worked in occupational health and safety for more than 30 years. It was submitted that Mr Dohrmann is an expert in his field and, in particular, due to the depth of his experiential and academic knowledge he is able to devise and implement systems which are safe for the public. 19The plaintiff referred me to the well known statement by Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]: "In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41])." (emphasis added) 20To this discussion, I would add two further points. First, in some cases it is unnecessary that all the links between the witness's area of expertise and opinion be spelled out fully "because the linkage is apparent from the nature of the specialised knowledge" (see Dasreef at [37]; Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; 48 ACSR 291 at [34] per Austin J). Second, at the threshold of deciding admissibility of an expert's report, it is not the task of the Court to analyse what is the true factual basis upon which an opinion by an expert was informed. It is sufficient if the report discloses the facts and reasoning process that the expert asserts justifies the opinion expressed (see Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [135]-[136] per Spigelman CJ).

Mr Dohrmann's evidence allowed 21I have described Mr Dohrmann's qualifications. It is clear that mechanical engineering is an area of specialised knowledge, and that Mr Dohrmann is a person with training, study and experience in that area. The area of ergonomics was not discussed in Mr Dohrmann's oral evidence but the passages from his resume reveal that is an area of study with identified educational qualifications. In the case of Mr Dohrmann he holds postgraduate qualifications and has practised in the field continuously since 1976. The description in Mr Dohrmann's resume suggests that, at least in his case, it is a logical extension from his background in mechanical engineering; i.e. he has expertise in the capabilities and operation of machinery as well as their interaction with humans in work and recreational contexts. 22For the purposes of Mr Dohrmann, I am satisfied that he has "has specialised knowledge" in the fields of mechanical engineering and ergonomics based on his "training, study or experience" in both. 23The next question that arises is whether Mr Dohrmann's opinions are wholly or substantially based on that specialised knowledge. Although the submissions on this matter addressed the nature of Mr Dohrmann's expertise, both the terms of s 79(1) and the passage from Makita that I have extracted above illustrate the inter-connected nature of the inquiry concerning the expert witnesses' expertise and qualifications, the nature of the opinion they provide and the reasons supporting it. The submissions on the admissibility of Mr Dohrmann's reports did not descend to identify much less differentiate between the various opinions that has expressed. However, that does not relieve me of the task of doing so. 24The opinions that Mr Dohrmann expresses in his third and fourth reports are, in my view, clearly matters that are wholly or substantially based upon his specialised knowledge in the areas I have identified. They address the operation of a piece of machinery by reference to various calculations and parameters that he has been provided with. He comments upon the opinions of others as to the characteristics and performance of the chair lift machinery. He provides opinions as to how both the operator and the plaintiff "could" have acted in light of that analysis and, in respect of the lift operator, should have acted. In context the former opinions involve the application of his specialised knowledge in engineering and the latter in ergonomics. 25Subject to considering the particular criticisms made by Mr Maconachie QC which I address below, the same conclusions follow in relation to the answers Mr Dohrmann gave in the joint report. His answers to a number of questions only concerned matters as to the mechanical operation of the chairlift which his engineering qualifications and experience clearly enabled him to address. The other answers concerning either procedures of the defendant and the conduct of the lift operator in operating the chairlift are based on his qualifications and experience in both engineering and ergonomics. 26The opinions expressed by Mr Dohrmann in his first and second reports are problematic. The first report suffers from the obvious difficulty that it was not based upon any inspection. If there is a problem with the first report it stems from the lack of concrete information that he was working with and this is addressed by his subsequent reports. To read those reports it is necessary to consider his first report so that in a sense its admissibility has to be considered in light of its successors. That said, the critical opinions in the first report concerning whether the injuries sustained by the plaintiff were consistent with his assessment as to the manner of the operation of the machinery, and the steps that could have been taken to avoid it appear to be wholly or substantially based on his specialised knowledge of engineering and ergonomics. 27The second report merely provides more substantial reasoning for the opinions expressed in the first report. There are aspects of the first and second reports that appear to contain speculation as to factual scenarios that do not appear to be based on his specialised knowledge. However, I was not presented with any sentence by sentence objections to his report. I regard these parts of the report as leading into the critical conclusions whose admissibility I am addressing. 28I will address a number of specific points made by Mr Maconachie QC. One specific criticism arose out of a passage of the cross examination of Mr Dohrmann. He was referred to paragraph 7.4 of his first report in which he provided a description of the triple chair as being "fairly heavy". He was asked at the time that he wrote the report whether he had any "quantitative measure of the mass or weight of the triple chair" and he said it was likely that he did not, but that he had used his experience as a recreational skier to make an informed estimate of its weight. This was said to be an example of him opining on matters based upon his experience as a recreational skier, rather than his experience as an engineer. In my view, this contention is misconceived. Section 79(1) is directed to whether the "opinion" is wholly or substantially based on his specialised knowledge. Mr Dohrmann's assessment of the mass or weight of the triple chair is not an opinion, but a fact upon which his opinions are based. He is entitled to use his knowledge as a lay person concerning that fact in order to form his opinion. Whether this is an adequate factual basis for his opinions is a different matter but to the extent that it was imprecise it was addressed by his later reports in which figures are provided. 29Another specific criticism of Mr Dohrmann was his lack of any experience in the operation of chair lifts given that he opines on their operation and what was reasonably to be expected of those who owned and operated them. In my view, Mr Dohrmann's lack of specific experience in dealing with chair lifts does not affect the admissibility of his evidence. I have described his experience as both an engineer and ergonomist. A ski lift is just another machine which interacts with members of the public to provide transport for their recreational activities. There are obvious similarities (and no doubt some differences) between it and other machines that perform similar functions albeit in different settings such as building lifts. Nothing in the evidence has identified any special feature of the operation or circumstances of chair lifts which makes them so unique that someone with engineering and ergonomic expertise could not analyse and assess their safe operation. To the contrary one might expect that someone with a broader knowledge of machinery and ergonomics generally might be in a better position to discuss their safe operation than someone who has specifically focused on chairlifts. 30The final specific matter put in relation to Mr Dohrmann's evidence concerned the following passage in his second report: "There is one rarely-used emergency stop system which causes a concrete block to drop elsewhere, and which instantly stops dead the entire movement of the cable. The violence of the stop can throw people forward. I was told that tow operators were instructed never to use this form of emergency stop unless there was a very dangerous or injury-threatening risk observed." 31Mr Dohrmann was cross examined about this aspect of his report. It was suggested to him that the emergency stop system to which he was referring was a concrete block that was depicted in a photograph shown to him during cross examination. He rejected the suggestion. Mr Dohrmann explained that he had no particular knowledge of this aspect of the system, but was instead relying on something he was told by the solicitor for the defendant at the time he undertook the inspection which preceded the second report. Mr Dohrmann said that he "didn't put a lot of weight on this" and that solicitor "mentioned he might have been speculating himself". He stated that he had only included it in his report "in [a] fair way, in the way that it was picked up by me to complete the picture, that's all". Mr Dohrmann was questioned as to why, if he was told about such a device, he did not make further enquiries and attempt to see it either in operation or at least inspect it. The cross examiner was implicitly critical of his failure to do so. 32Whatever can be made of this exchange, in my view it has nothing to do with the admissibility of Mr Dohrmann's evidence. This passage is to be found in that part of his second report in which he outlines the operation of the chairlfit, based on what he observed. As I have stated, this report was prepared following an inspection at which he was not in a position to make measurements or operate the machinery. Nothing in this evidence supports the contention that Mr Dohrmann's opinions are not based wholly or substantially on his specialised knowledge. 33It follows that I accept the tender of Mr Dohrmann's reports and oral evidence. His reports, the joint report in so far as it refers to his answers, and his oral evidence will be treated as evidence in the proceedings.

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: 10 September 2012

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