Plaintiff v Defendant

3 The defendant contends that Mr Bailey does not have the expertise to provide such an opinion. Further, that any opinion he does express is not based upon any field of specialised knowledge, and finally that his opinion is no more than common knowledge and therefore is not admissible.

4 This is the fourth day of the trial before a jury of six in Warrnambool. The plaintiff and several medical practitioners have given evidence; in particular Professor Naughton, the head of the General Respiratory and Sleep Medicine Division at the Alfred Hospital, and a past president of the Australian Sleep Association, has given evidence as to the consequences of sleep deprivation and steps that can be taken in the workplace to avoid such deprivation.

5 Yesterday afternoon I determined that Mr Mark Dohrmann, an engineer and ergonomist, did not have sufficient specialised qualifications to express an opinion as to the effects of sleep deprivation and steps which could be taken to minimise or obviate such risks. I permitted Mr Dohrmann to give evidence on the voir dire as to his expertise and knowledge and have taken the same course today with Mr Bailey. This ruling is necessarily constrained by the need to deliver it speedily so as to not inconvenience the jury any more than is necessary. The jury has waited patiently while I have considered my decision.

6 I have been much assisted by the submissions made by both Mr Fitzpatrick, junior counsel for the Plaintiff and Mr Middleton, junior counsel for the Defendant and thank them for their assistance.

7 I wish now to mention a point that arose in the course of yesterday's application in respect of Mr Dohrmann's evidence, but not today, because I think it is of some significance and that I should express my view upon it now. It involves the application of Order 44 in relation to determination of this issue. It was suggested yesterday, although faintly I think, that I am constrained in determining whether to admit the evidence of an expert by reference to the contents of that expert's report alone.

8 In my view such an approach is wrong. Order 44 is designed to ensure that fully reasoned and articulated expert reports are provided by the parties prior to trial. This enables the parties to gauge the strengths of the expert's opinion, or for that matter its weaknesses. It is also designed to ensure that the expert appreciates that he or she has an obligation to the court in terms of providing an unbiased report based on that expert's field of expertise. It does not in my view inhibit a party from leading further evidence at the trial of the proceeding to endeavour to satisfy the court that the expert has the relevant expertise or that the opinion flows from that expertise and its application to the facts.

9 A party, in my view, has the substantive right to lead such evidence provided it satisfies the legal test as to the provision of that opinion. Order 44 ensures, at least in a procedural fashion, that the parties know the nature of the opinion and its basis and hopefully its lack of bias. Accordingly it is appropriate to permit a party to lead further evidence on an application such as this. I note that on this application Mr Middleton did not contend otherwise. Of course if something emerges from that evidence that takes the other party by surprise then that can be dealt with by an appropriate application.

10 I turn to the principles relevant to the admissibility of expert evidence. Given the pressures of time on circuit the starting point must be the decision of Gleeson CJ in HG v R.[1]

"The opinions of Mr McCombie were never expressed in admissible form. 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. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s79 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 section 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 s79, 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. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided."

11 Subsequently, in the oft cited decision of Makita Australia Pty Ltd v Sprowles,[2] Heydon JA collected and analysed many of the relevant authorities concerning the giving of expert evidence. His conclusion was as follows:[3]

"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] HCA 2; (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"."

12 There are two other appellate decisions which require reference. The first is that of the Full Federal Court in Ocean Marine Mutual v Jetopay[4] in which Black CJ, Cooper and Emmett JJ said as follows:

"The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account:

• the factual context in which a report was produced;

• the description and designation of the person making the report;

• the contents and language of the report and the nature of the assertions made in it;

• the expressed qualifications of the person making it as set out in the report.

However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.

The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge."[5]

13 Finally there is the decision of the Court of Appeal in this State in Ronchi v Alcoa.[6] Somewhat ironically that case involved a Warrnambool jury sitting in this court considering a claim arising out of the employment of a worker against his employer which Eames JA (with whom Buchanan and Nettle JJA agreed) cited with approval the passage from Heydon J in Makita[7], which I have set out at para 11. It is clear therefore that in this State the propositions articulated by Heydon J in Makita Australia Pty Ltd v Sprowles are determinative of an application such as this.

14 I think that the principles from these cases can be distilled as follows:

(a) a party wishing to call an expert witness must clearly identify the field of specialised knowledge in respect of which it is said the witness can proffer an opinion;

(b) a party must then identify the expertise of the witness in that field. It must be demonstrated that by reason of specialised training, study or experience the witness is truly an expert in that area;

(c) the opinion expressed by the witness must be either wholly or substantially based on that specialist knowledge and not on the everyday knowledge of the common person;

(d) the opinion must be based on clearly identified facts;

(e) the onus rests on the party calling the witness to satisfy the criteria I have just identified.

Application of the principles to Mr Bailey's evidence

15 I now turn to the application of those principles to the evidence sought to be adduced from Mr Bailey. The first issue is the field of expertise; Mr Bailey disavows any expertise in sleep deprivation. Rather he has experience of many years in personnel and human resource management. It is this which is said to enable him to give evidence as to the appropriate management of employees on consecutive shifts and the management of fatigue which may flow from engaging in those shifts. I am prepared to accept that there is a field of specialised knowledge in this area of shift management and rostering and the impact of fatigue in determining such arrangements. I do not accept the defendant's contention based upon the judgment of Menzies J in Clark v Ryan[8] that this is a matter of such common experience that a jury's task is not assisted by such evidence. In my view it is an area of specialist knowledge.

16 The second question then arises as to whether Mr Bailey has the requisite training, study or experience to be regarded an expert in the identified area. The plaintiff bears the onus of persuading me that he has such expertise. Mr Bailey's qualifications are set out in his report and were amplified when he gave evidence on the voir dire. I summarise these qualifications as follows: in 1972 he completed the Australian Diploma of Human Resources Management at RMIT, which included the obtaining of certain qualifications from the Golden Gate University. This was a five years part-time course and covered human resources management. Shortly thereafter he was employed as a personnel manager with Target Australia between 1972 and 1975. From 1978 to 1981 he was employed by the Slade Consulting Group in recruitment consulting, and since 1981 has conducted, as a founding partner and managing director, Bailey Shaw & Partners Pty Ltd. It is said to specialise in senior management and professional recruitment and human resources consulting services. He is a life fellow of the Australian Human Resources Institute and he is a life fellow of the Recruitment and Consulting Services Association.

17 In the course of the voir dire he frankly disclosed that his primary role has been in recruitment, and indeed that he specialises in executive recruitment. This is clear from the imprimatur contained in the Bailey Shaw logo, which reads, "Specialists in executive recruitment." Although he has managed his own staff at Bailey Shaw the following factors are relevant to analysis of his expertise. Firstly, he has undertaken no study of or trained in or been involved in matters germane to this case, namely staff rostering in general and in particular staff rostering to avoid the effects of fatigue. His primary expertise is confined to recruitment. Secondly, and although I do not consider it critical, he has no experience in the management of workers employed in the health area. Finally, I think there is force to the suggestion made by Mr Middleton that his opinion flows not from any expertise in this area (which I am unable to identify), but rather from human experience and his reading of certain awards which have been either been obtained by him or provided to him. This does not make him an expert.

18 In summary I am not satisfied that he has the necessary expertise to give the evidence disclosed in his Order 44 statement.

[1] [1999] HCA 2; (1999) 197 CLR 414, [39] and [44]

[2] [2001] NSWCA 305; (2001) 52 NSWLR 705

[3] [2001] NSWCA 305; (2001) 52 NSWLR 705 [85]

[4] [2000] FCA 1463; (2000) 120 FCR 146

[5] [2000] FCA 1463; (2000) 120 FCR 146 [21] - [23]

[6] [2008] VSCA 83

[7] [2008] VSCA 83 [54]

[8] [1960] HCA 42; (1960) 103 CLR 486