Nibaldi v Genazzano FCJ College Limited

1. The claim was cast in very broad terms in the Further Amended Statement of Claim dated 11 November 2024:

"5. As a consequence of the nature of her employment and the requirement to perform repetitive, heavy and/or awkward manual handling particularly in June 2018 and April 2020, the plaintiff sustained injury.

1. The plaintiff's injuries were caused by the breach by the defendant of the duty described in paragraph 4 and the negligence of the defendant (particularly principal Karen Jebb), its servants and/or agents.

(c) Failing to ensure sufficient staff were employed by the defendant.

(d) Requiring the plaintiff to perform heavy, repetitive and awkward manual handling and associated tasks.

(e) Requiring the plaintiff to perform heavy, repetitive and awkward manual handling and associated tasks under time pressure.

(h) Requiring the plaintiff to perform heavy, awkward and repetitive manual handling in circumstances whereby it was clear she was experiencing an injury.

(i) Failing to heed the plaintiff's request for assistance.

(j) Failing to provide adequate support to the plaintiff.

(l) Failing to provide suitable employment to the plaintiff.

(m) Failing to provide the plaintiff with any or any adequate training.

(n) Failing to provide the plaintiff with any or any adequate instructions.

(o) Failing to provide the plaintiff with any or any adequate supervision.

(p) Failing to carry out any or any adequate risk assessment of the tasks required.

(q) Failing to comply with Australian Standard AS1470-1986 Health and Safety at Work - Principles and Practices including clause 2.2, clause 2.3, clause 4.2, clause 5.1, clause 5.2 and 5.7.

(r) Failing to carry out any or any adequate review or audit of manual handling work performed by the Plaintiff.

(s) Failing to provide the Plaintiff with any or any adequate training in manual handling risk assessment and in safe manual handling methods.

(t) Failing to implement any or any adequate regular schedule of inspection and maintenance of library equipment.

(u) Failing to replace a worn timber trolley with unsuitable wheels with which the Plaintiff was required to transfer books.

(v) Failing to provide the Plaintiff with any or any adequate resources, time, and assistance to complete the task of moving books.

(w) Failing to apply weight limits to trolleys which the Plaintiff was required to push/manoeuvre.

(x) Requiring the Plaintiff to repetitively reach to heights and bend to below knee level for the removal of books.

(y) Failing to have books placed upon shelves at a height from which they could be easily removed/removed without risk.

(z) Failing to take heed of the significant amount of manual handling in the task of moving book collections.

(aa) Failing to take heed of restrictions imposed upon the Plaintiff by reason of her previous back surgery.

(bb) Failing to provide the Plaintiff with any or any appropriate safe work plan for the activities which she was required to perform.

(cc) Requiring the Plaintiff to push/manoeuvre trolleys:

(i) upon which there was a small diameter of castors;

(ii) upon a narrow castor rolling surface contact area;

(dd) Requiring the Plaintiff to push trolleys with castors attached which sank into carpet and increased the floor resistance against the trolley and castors.

(ee) Requiring the Plaintiff to push trolleys upon which were castors inappropriate for the task especially when heavily loaded on a carpeted surface.

(ff) Failing to provide any or any adequate handles on trolleys the Plaintiff was required to push/manoeuvre.

(gg) Failing to comply with the provisions of the Occupational Health and Safety Regulations 2017 (as amended)

1. Further, and in the alternative, the plaintiff's injuries were caused by reason of the breach or breaches by the defendant of its duties pursuant to the provisions of the Occupational Health and Safety Regulations 2017 (as amended) on and from 18 June 2017.

Without limiting the generality of the foregoing, failing to comply with:

(a) Regulation 26 in that insofar as was reasonably practicable it failed to identify hazardous manual handling being undertaken by the Plaintiff.

(aa) Regulation 27 (1) and if it was not reasonably practicable to eliminate a risk of a musculoskeletal disorder associated with hazardous manual handling, failing to reduce the risk insofar as is reasonably practicable in accordance with Regulations 27 (2) (a) (i)-(iii)-(d) inclusive.

(ab) If it is found that the defendant did comply with Regulation 27(1) and (2), insofar as is reasonably practicable and a risk of musculoskeletal disorder associated with hazardous manual handling remained, the defendant failed to reduce the risk insofar as is reasonably practicable by using information, instruction or training in accordance with regulation 27(3).

(ac) Without affecting the generality of sub-Regulations 27 (1)(2)(3) and (4), the defendant was required in accordance with r 27(5) to determine any measure to control the risk of a musculoskeletal disorder associated with hazardous manual handling by taking into account the following -

(iv) duration or frequency of the hazardous manual handling;

(v) environmental conditions including heat, cold and vibration that act directly on a person undertaking hazardous manual handling.

(ad) Failing to review and if necessary revise any measures implemented to control risk under sub-Regulation 27 by complying with sub regulation 28(1) -

(i) before the alteration is made to anything, process or system of work involving hazardous manual handling, including a change in the place where that work is undertaken; or

(ii) if new or additional information about hazardous manual handling becomes available to the defendant; or

(iii) if an occurrence of a musculoskeletal disorder at a workplace is reported by or on behalf of an employee; or

(iv) after any incident occurs to which Part 5 of the Act applies that involves hazardous manual handling; or

(v) if for any other reason, the risk control measures do not adequately control the risks; or

(vi) after receiving a request from a health and safety representative."

1. The principles applicable to the admissibility of opinion evidence are well established and were not in dispute.
2. The relevant sections of the Evidence Act 2008 (Vic) ("the Act") are as follows:

(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.

(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.

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.

1. 80 Ultimate issue and common knowledge rules abolished

Evidence of an opinion is not inadmissible only because it is about -

(a) a fact in issue or an ultimate issue; or

(b) a matter of common knowledge.

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

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing: or

(c) cause or result in undue waste of time ...

1. In Parrish v Specialized Australia Pty Ltd (Rulings),[1] J Dixon J summarised the four "rules" identified by Heydon J in Dasreef Pty Limited v Hawchar[2] 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. In Makita (Australia) Pty Ltd v Sprowles,[3] Heydon JA explained the necessity for an expert to reveal the full reasoning by which the opinion expressed was reached. The purpose is so that the tribunal of fact may assess that reasoning to determine whether to accept the opinion. Heydon JA cited with approval Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh[4] as follows:

"... Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury ... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence ... In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. ...

1. In HG v The Queen, Gleeson CJ said:[5]

"... An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. ... the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the sections requires that the opinion is presented in a form which makes it possible to answer that question.

This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. ... ."

1. In Rees v Lumen Christi Primary School,[6] Robson J considered the admissibility of the opinion evidence of an expert in educational administration. A particular issue was whether the expert had sufficiently revealed the path of reasoning for those opinions. Robson J highlighted Heydon JA's explanation of that issue in Makita.
2. Robson J found the expert had not applied his specialised knowledge to primary assumed facts and had not disclosed his reasoning to allow the jury to apply it themselves and make their own independent judgment. He found that, "Rather, his opinions are merely a means of repeating the facts he assumes and is merely a means of advocating the factual basis of the case the plaintiff seeks to put".[7]
3. The onus to establish admissibility rests on the party seeking to adduce the evidence.

1. Mr Dohrmann's report is dated 30 June 2023.
2. Section 1 of the report sets out Mr Dohrmann's qualifications and experience. In brief, he is a "professional consulting engineer" and holds postgraduate qualifications in ergonomics. Mr Dohrmann identifies particular experience qualifying him to give an opinion in this case in the following way:

"I have also examined and advised employers on risks associated with the pushing or pulling of wheeled equipment (including trolleys)."

1. There is no dispute that engineering and ergonomics are fields of specialised knowledge.
2. Section 2 of the report summarises Mr Dohrmann's instructions and the scope of the report. He was provided with a letter of instruction dated 3 April 2023.
3. Section 3 sets out the documents and material provided to Mr Dohrmann. These included photographs identified at paragraphs 3.1 and 3.2 of his report. The photographs were of a timber trolley and its castors, and of bookshelves in the library.
4. Section 4 of Mr Dohrmann's report contains 59 paragraphs of "assumed facts". These assumed facts include what Mrs Nibaldi told Mr Dohrmann when he interviewed her on 14 April 2023.
5. At paragraphs 4.10 to 4.15 inclusive of the "assumed facts" section of his report, Mr Dohrmann gives some analysis and opinion of the castors of the wooden trolley from the photographs supplied to him
6. Mr Dohrmann attended the Genazzano library on 12 April 2023. He set out details of his inspection in section 5 of his report.
7. At the inspection, Mr Dohrmann took photographs of the library, library shelves, a metal-framed trolley (then in use in the library), and some sample books. He measured the metal-framed trolley, the heights of the library shelves, and the distance between shelves. He weighed two books. Mr Dohrmann said that he was not able to inspect a timber trolley as he was informed the timber trolleys had recently been disposed of.
8. Section 6 of Mr Dohrmann's report comprises "Standards and guidance material".
9. Section 7 of Mr Dohrmann's report contains his "Discussion and analysis".

1. Senior Counsel for Mrs Nibaldi advised the Court that no reliance was placed on the following parts of the report:

(a) Paragraph 2.3 - the extract of the letter of instruction dated 3 April 2023;

(b) Section 6;

(c) Paragraph 7.4 - the words "and unsafe";

(d) Paragraph 7.5 - the words "and unsafe";

(e) Paragraph 7.45 - the words "and likely unsafe";

(f) Paragraphs 7.49 to 7.62 inclusive.

1. Senior Counsel submitted that the remainder of the report was admissible. Mr Dohrmann was expressing opinions within his field of expertise based on his inspection and assumed facts.
2. Senior Counsel for Mrs Nibaldi submitted that Mr Dohrmann does not express medical opinions, but as an ergonomist is entitled to express opinions as to risk of injury.
3. Senior Counsel for Mrs Nibaldi submitted that Mr Dohrmann was unable to inspect the timber trolleys used in the library in 2018 as they had been disposed of. He was therefore expressing opinions about the trolleys based on the best material available to him. Counsel developed this submission as follows:[8]

"So we say that his expression of an opinion on the basis of his experience in looking at castors of that nature and how castors of that nature perform when they are rolling over carpet and his experience of testing various objects when they were rolling over carpet with castors of that nature. That's an observation or an opinion he expresses on the basis of experience and testing in the past."

1. Insofar as excerpts of the report were inadmissible, Mrs Nibaldi intended to seek a further report from Mr Dohrmann excluding same rather than redacting them.
2. Genazzano accepted that it was not possible for Mr Dohrmann to inspect the timber trolleys in use in June 2018 as they had been disposed of prior to Mr Dohrmann's involvement.
3. Senior Counsel for Genazzano submitted that the jury ought not to be infected by what is advanced as an opinion by Mr Dohrmann which does not descend into any specific detail sufficient to underpin the opinions he attempts to advance. Mr Dohrmann's path of reasoning is not sufficiently exposed.
4. For example, at paragraphs 7.4, 7.5 and 7.45 of his report, Mr Dohrmann opines that the forces involved in moving the timber trolley were likely "high":

(a) that assessment was apparently based on the description of the task of pushing the trolley given to him by Mrs Nibaldi. Beyond the broad description from Mrs Nibaldi, Mr Dohrmann does not specify the weight of the trolley or of the loads upon it;

(b) there is no path of reasoning exposed as to how Mr Dohrmann concluded that the forces to be applied were "high";

(c) the expression "high" is not a term of art, and Mr Dohrmann does not explain what he means by it;

(d) Mr Dohrmann states that his opinion is, in part, based upon:

"... my frequent assessment of the efforts required to move similar trolleys over carpeted surfaces on many occasions in the last 15 years ..."

yet he does not provide sufficient detail for this experience to be tested.

1. Senior counsel for Genazzano submitted that much of section 7 of Mr Dohrmann's report comprises opinions which are merely a restatement of facts assumed, for example in relation to the April 2020 incident:

"7.24 Each book needed to be reached, inspected and placed on a cart, the loaded cart pushed to the bell tower, and the books removed and re-shelved.

7.25 It is likely that this job was repetitive, awkward and done over long duration.

7.26 These three well-known strain injury risk factors, when combined, create a risk of injury, and Mrs Nibaldi was exposed to this risk when undertaking this task."

1. Mr Dohrmann refers to the Victorian Code of Practice for Manual Handling, and states that he carried out a risk assessment on the activities performed by Mrs Nibaldi in June 2018 and April 2020. He does not identify the instructions or assumed facts he deployed.
2. Save for his analysis of the photographs of wheels of a timber trolley, Mr Dohrmann did not conduct any relevant testing.
3. At paragraph 7.44 of his report, Mr Dohrmann is impermissibly expressing a medical opinion. Further, the identified path of reasoning for that opinion is merely a restatement of assumed facts and/or is not sufficiently disclosed:

"7.45 The basis of this concluded opinion is in the high ... levels of stress to which she was exposed when undertaking her duties as a library technician under the circumstances described, when forcefully pushing a partially loaded timber trolley in June 2018 and later when assisting with the movement of the history book collection in April 2020."

1. At paragraph 7.48, Mr Dohrmann identifies a series of measures which he opines were available to Genazzano to prevent exposing Ms Nibaldi to "risks such as this". The reference to the various standards and guidance material in Section 6 is to be excised from the report. The issue of whether the plaintiff's duties involved "hazardous manual handling" is an ultimate issue, and a question of fact that does not require the support or explanation of an expert. Many of the matters raised by Mr Dohrmann in that paragraph are commonsense and do not require expert opinion.
2. In summary, Senior Counsel for Genazzano submitted that Mr Dohrmann did not sufficiently reveal his path of reasoning such that his reasoning could be tested by the jury. His opinions are largely a recitation of assumed facts. Many of his opinions are upon matters of commonsense that do not require expert opinion.

1. Paragraph 7.2 simply repeats assumed facts.
2. Paragraph 7.3 notes that Mr Dohrmann was not able to measure "the precise efforts required to initiate or sustain movement of the trolley across the library carpet". Despite assuming that the carpet present at the time of his inspection was the same carpet as of 2018 and 2020, Mr Dohrmann did not undertake any testing of the "efforts", precise or otherwise, required to initiate or sustain movement of a trolley.
3. In paragraphs 7.4 and 7.5, Mr Dohrmann opines that the forces involved in moving the timber trolley were "likely high". He states this opinion is based on Mrs Nibaldi's description that the task was difficult, the photographs of "the trolley", and his frequent assessment of the efforts required to move similar trolleys over carpeted surfaces "on many occasions in the last 15 years".
4. As Mr Dohrmann states that he relies upon his particular experience assessing similar trolleys over carpeted surfaces, he ought to identify the nature and extent of that specialised knowledge. He does not do so.
5. In paragraphs 4.10 to 4.15 and 7.6, Mr Dohrmann identifies the features he observed about the castors from the photographs of the trolley with which he was provided. There is no particular expertise brought to bear on these observations.
6. At paragraphs 7.7 to 7.13, Mr Dohrmann opines as to the way the castors on the trolley interacted with the carpet of the library. He did not state that he conducted any testing of the carpet, nor of castors similar to those at issue. To the extent that these paragraphs contain expressions of opinion within Mr Dohrmann's expertise, the opinions are expressed at a level of generality that does not permit the jury to evaluate the reasoning.
7. In paragraphs 7.14 and 7.15, Mr Dohrmann does not identify why the absence of handles on the trolley increased the sideways forces to steer the trolley.
8. Paragraphs 7.16 to 7.18 simply repeat assumed facts.
9. In paragraph 7.19, Mr Dohrmann opines that Mrs Nibaldi was exposed to a risk of injury. It is not entirely clear, but this opinion appears to be based on the two preceding paragraphs containing assumed facts. No path of reasoning is identified. Mr Dohrmann does not identify how his expertise is brought to bear on this issue.
10. Paragraphs 7.20 to 7.24 simply repeat assumed facts.
11. In paragraphs 7.25 to 7.27, Mr Dohrmann opines that the task being undertaken by Mrs Nibaldi in April 2020 was likely "repetitive, awkward and done over long duration". There is no particular expertise brought to bear. No sufficient path of reasoning is identified.
12. Paragraphs 7.28 to 7.33 contain descriptions of the Code of Practice for Manual Handling. Mr Dohrmann's description of the Code of Practice is not admissible for the same reason that it was conceded that section 6 of his report was inadmissible.
13. In paragraphs 7.34 to 7.40, Mr Dohrmann expresses opinions as to the applicability of the Code of Practice to the tasks he has assumed Mrs Nibaldi was undertaking in June 2018 and April 2020. Again, this is not a matter of expertise. No sufficient path of reasoning is identified.
14. In paragraph 7.42, Mr Dohrmann correctly acknowledges that Mrs Nibaldi's physical capacity as of April 2020 was a matter for medical opinion.
15. In paragraph 7.43, Mr Dohrmann's observation does not bring any particular expertise to bear.
16. In paragraphs 7.44 and 7.45, Mr Dohrmann expressed a "concluded opinion" that Mrs Nibaldi was placed at risk of injury. The basis for the opinion was described as the high level of stress forcefully pushing a timber trolley in June 2018 and later, "when assisting with the movement of the history book collection in April 2020". Once again, Mr Dohrmann is not bringing any particular expertise to bear and does not sufficiently identify his path of reasoning.
17. In paragraphs 7.46 and 7.47, Mr Dohrmann expresses opinions as to what information is known to employers. This is not a matter of expertise.
18. In paragraph 7.48, Mr Dohrmann identifies various measures available to Genazzano to prevent exposing Mrs Nibaldi to a risk of injury. Many of these matters do not require any expertise but are matters of commonsense or common knowledge.
19. Mr Dohrmann has expertise as an engineer and ergonomist. However, I am not satisfied that the opinions he expresses in section 7 of his report are wholly or substantially based on Mr Dohrmann's specialised knowledge. Insofar as they are expressions of expert opinion, Mr Dohrmann has not sufficiently identified his path of reasoning to enable those opinions to be evaluated by the jury. Furthermore, the process of reasoning Mr Dohrmann has engaged in appears to have gone beyond his field of expertise as an ergonomist and engineer.

1. I am not persuaded that Mr Dohrmann's report satisfies s79(1) of the Act. The opinion evidence contained therein is inadmissible.

[1] [2020] VSC 15 at paragraph [25]

[2] [2011] HCA 21; (2011) 243 CLR 588

[3] [2001] NSWCA 305; (2001) 52 NSWLR 705 ("Makita") at paragraph [59]

[4] (1953) SC 34 at 39-40

[5] [1999] HCA 2; (1999) 197 CLR 414 at paragraphs [39] and [44]

[6] [2010] VSC 514 ("Rees")