Plaintiff v Defendant

1 On 16 June 2010, on the seventh day of the trial before a jury of six, the plaintiff's senior counsel announced in the absence of the jury that he sought to call Professor Tronc to give opinion evidence. The court was informed that the plaintiff had filed three written reports of Professor Tronc being 14 July 2009,[1] 14 May 2010[2] and 12 May 2010.[3]

2 The defendant objected to the admission of Professor Tronc's evidence and contended that the plaintiff should first establish that the evidence was admissible. The plaintiff in seeking to establish the admissibility of Professor Tronc's evidence only referred to the report of 14 July 2009. The plaintiff's senior counsel indicated that he would not seek to tender any of the written reports, but that rather he would seek to lead limited oral evidence from Professor Tronc of a portion of his report of 14 July 2009.

3 After hearing submissions on behalf of both parties, I ruled that the plaintiff could not lead the limited oral evidence from Professor Tronc. These are my reasons for so ruling.

4 The plaintiff was employed by the defendant as an integration teacher's aide at the Lumen Christi Primary School in Delacombe, a suburb of Ballarat. The plaintiff alleges that on 13 June 2003, whilst in the course of her employment with the defendant at the school the plaintiff, when endeavouring to restrain an aggressive and violent student, suffered physical and psychological injury ("the restraint"). The plaintiff alleges that subsequent to the restraint she was required to undertake duties in the course of her employment and subjected to directions of the principal which aggravated the injuries in the restraint ("the work directions"). The plaintiff alleges the restraint and work directions caused her physical and psychological injuries.

5 The plaintiff alleges that the defendant as an employer of the plaintiff was at all material times under a duty to the plaintiff to take reasonable care for her safety by providing: a safe place of work; proper and safe plant and appliances for her work; a proper and safe system of conduct for her work and efficient supervision of such work.

6 The plaintiff alleges that the injury suffered by her occurred as a consequence of the defendant's breach of the aforementioned duties and/or negligence of the defendant and its servants and agents.

7 The relevant particulars of negligence or breach of duty included:

(a) failing to instruct or properly instruct the plaintiff;

(b) failing to provide the plaintiff with any or any adequate supervision;

(c) failing to provide the plaintiff with any or any adequate assistance;

(d) failing to provide the plaintiff with any or any adequate equipment;

(e) failing to carry out any or any adequate risk assessment in the tasks required of the plaintiff;

(f) failing to heed complaints made by the plaintiff;

(g) failing to provide the plaintiff with any or any adequate:

(h) ignoring the plaintiff's requests for assistance in respect of the need to be able to adequately control aggressive, violent student behaviour;

(i) Exposing the plaintiff to aggressive violent student behaviour in the circumstances;

(j) failing to take heed of past aggression and violence of the student in establishing work practices and protocols;

(k) failing to recognise the risks created by the aggressive and violent student to the health and welfare of the plaintiff and other students at the school;

(l) failing to implement any or any adequate system of advice to parents, other students and staff in relation to dealing with and consequences of the presence of the aggressive and violent student at the school;

(m) failing to ensure that the Principal had adequate training and experience to properly direct the Plaintiff;

(n) permitting the Principal after and in relation to the restraint to engage in bullying of the Plaintiff by way of humiliation, scapegoating, lack of support, disbelief, ostracism, public abuse, exclusion, denigration, inconsistent and overbearing work demands and intimidation;

(o) permitting the Plaintiff to be subjected to mobbing by others of its staff at the school after the restraint in their lack of support, mirroring the Principal's lack of support, particularly in relation to the Plaintiff's expressed concern about the legitimacy of her actions in effecting the said restraint; check

(p) failing to comply with the provisions of the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Manual Handling Regulations made there under. Check

8 Professor Tronc holds specialised knowledge in the theory and practice of educational administration which includes the training, support and supervision of teachers, teachers' aides and administrative staff.

9 Professor Tronc holds a PhD in educational administration and various other tertiary degrees in education and public administration. Professor Tronc also holds a law degree and is admitted to the New South Wales and Queensland bars. He is the author of many texts on education as well as legal texts and has taught in schools and universities, at one time holding the position of Dean of Field Studies at Griffith University.

10 As mentioned, I was only taken to Professor Tronc's report of 14 July 2009 which I took to be his main report.

11 In his written report of 14 July 2009, Professor Tronc summarised his conclusions and opinions as follows:

1 The plaintiff was the victim of repeated workplace bullying by the Principal. She suffered humiliation, public abuse, exclusion, denigration, lack of support, scapegoating, public humiliation, ostracism, ignoring, powerlessness, disbelief, inconsistent and overbearing work demands, and verbal harassment, as well as discrimination and lack of equity in role expectations.

2. The plaintiff was subjected to a process of "mobbing" by other workplace members, in their lack of support, mirroring the principal's lack of support, particularly in relation to the plaintiff's expressed concern about the legitimacy of the use and justification of restraint measures on behaviourally disturbed children.

3. The plaintiff was not given adequate support nor equitable treatment by the school principal, who failed to respond appropriately to her complaints, her request for assistance, and her reasonable suspicions and concern about possible child abuse.

4. The plaintiff was the victim of "constructive dismissal" resulting from workplace stress, occasioned by workplace bullying and insufficiency of procedural fairness.

5. Mandatorily required risk management and effective supervision processes were not implemented.

6. The available possibility of resolution of the constructive dismissal by use of compassionate transfer was not sufficiently explored.

1. There was deficient application of the integration philosophy, through poor communication lack of training of paraprofessional staff, and the non-prevention of disruptive behaviour jeopardising the learning of the non-disabled students majority.

12 The plaintiff informed the court that she did not intend to rely on some of Professor Tronc's opinions in his report of 14 July 2009 and would not be seeking to tender his written reports. Rather the plaintiff's senior counsel said he would lead from Professor Tronc oral evidence. The plaintiff's senior counsel said he would be inclined to leave out "bullying" which is referred to in conclusions 1 and 4. He said he would not lead conclusion 2 about "mobbing"[4] and conclusions 4 and 6 about "constructive dismissal". He said he would seek to lead a variation of 6 but along the lines that the Principal said that the role of reconciliation or reintegration or rehabilitation was delegated to JLT WorkCover. The plaintiff's senior counsel said that he would probably seek leave to amend the particulars of negligence to cover this alleged conduct.[5] As events unfolded, no such application was made.

13 Accordingly, the conclusionary opinions to be led from Professor Tronc would be as follows:

1 The plaintiff was the victim of repeated workplace bullying by the Principal. She suffered humiliation, public abuse, exclusion, denigration, lack of support, scapegoating, public humiliation, ostracism, ignoring, powerlessness, disbelief, inconsistent and overbearing work demands, and verbal harassment, as well as discrimination and lack of equity in role expectations.

2 The plaintiff was subjected to a process of "mobbing" by other workplace members, in their lack of support, mirroring the principal's lack of support, particularly in relation to the plaintiff's expressed concern about the legitimacy of the use and justification of restraint measures on behaviourally disturbed children.

3. The plaintiff was not given adequate support nor equitable treatment by the school principal, who failed to respond appropriately to her complaints, her request for assistance, and her reasonable suspicions and concern about possible child abuse.

4 The plaintiff was the victim of "constructive dismissal" resulting from workplace stress, occasioned by workplace bullying and insufficiency of procedural fairness.

5. Mandatorily required risk management and effective supervision processes were not implemented.

6 The available possibility of resolution of the constructive dismissal by use of compassionate transfer was not sufficiently explored.

7. There was deficient application of the integration philosophy, through poor communication lack of training of paraprofessional staff, and the non-prevention of disruptive behaviour jeopardising the learning of the non-disabled students majority.

14 The plaintiff's senior counsel sought to summarise the position by saying he would seek to lead the following evidence, as set out in the Professor Tronc's report of 14 July 2009:

(a) viva voce evidence of Professor Tronc's qualifications and expertise;

(b) what was the state of best practice and usual practice in Victoria as at 2003 with respect to strategies and supervisional strategies to be adopted to protect foreseeable harm to teachers, students and teachers' aides;

(c) the deficiencies in the Lumen Christi School (including deficiencies in their communication system) and the procedures the School could have adopted.[6]

15 The defendant objects to the plaintiff's proposed course of leading oral evidence on the limited matters and not relying on the written reports. The plaintiff offers to give the defendant an "outline" of the brief way in which the plaintiff would lead evidence from Professor Tronc and explained generally what evidence the plaintiff would seek to lead as mentioned above. The defendant claims that the plaintiff's proposal does not comply with order 44 of the Supreme Court (General Civil Procedure) Rules 2005. That provides that unless otherwise ordered the defendant is to give the plaintiff a full written report not later that 30 days before the day fixed for trial.

16 The plaintiff's senior counsel did refer to a possible amendment of the particulars of negligence to lead opinion evidence about reintegration or rehabilitation delegated to JLT WorkCover. As indicated above, no such application was made.

17 In my view, the defendant has sufficiently complied with Order 44. There was no suggestion that the evidence to be led from Professor Tronc would differ from that in the report of 14 July 2009, which the plaintiff has had the required notice of.

18 The defendant contends that in relation to those parts of the written report of 14 July 2009 that the plaintiff has not abandoned, in substance Professor Tronc has assumed certain facts to be the case and then found as an opinion that they were the facts. The defendant says that the facts assumed by Professor Tronc were in substance the facts that the plaintiff seeks to make out as her case. The defendant says Professor Tronc's approach adds nothing to the case and to allow it to go in would be unfairly prejudicial to the defendant and misleading or confusing to the jury.[7]

19 Under the heading of "Factual Assumptions: The Subject of the Report" Professor Tronc says as follows:[8]

The factual assumptions on which the report relies are extracted from the medico-legal reports of Margo Murphy, Henrietta Camilleri, Dr Neil Phillips and Bailey Shaw, and the information obtained by those persons in interviews with the plaintiff and in their testing and examinations. In addition, the Report also relies as assumptions, on the factual information contained within the Medical Panel's Reasons for Opinion, dated 18 July 2006.

In the year 2003, the plaintiff was employed as an integration teacher's aide, at the Lumen Christi School, a non-government Catholic school ("the school"), in the State of Victoria. During the course of her duties, while under the ostensible supervision of the Principal and other teachers of the school, the plaintiff sustained physical injury resulting from the conduct of a behaviourally disturbed child. Requests by the plaintiff for professional help and advice from the Principal, in relation not only to the disturbed conduct of the child, but also in relation to reports by the same child of possible criminal behaviour at her home, failed to achieve adequate or appropriate official superordinate support. The plaintiff also sustained psychological injury from a process of workplace bullying and inappropriate management actions/inactions directed at her by the Principal, in which she was denigrated, humiliated, scapegoated, subject to procedural unfairness and her concerns trivialised.

The plaintiff received inadequate training, briefing and debriefing for her role as an integration aide; was subject to inconsistencies and uncertainties of professional demands; was given duties in excess of her training and normal role expectations; was harassed and was the subject of derogatory comments in public; was unsupported in her statutorily mandated concern for reporting reasonable suspicions of child abuse; was subjected to "mobbing" by crony supporters of the Principal; and underwent "constructive dismissal", as a result of stress induced by workplace bullying inflicted upon her by the Principal.

20 Bailey Shaw was not called as a witness. The Medical Panel's Reasons for Opinion of 18 July 2006 was not tendered. It is unclear to me whether the medico-legal reports of Margo Murphy, Henrietta Camilleri and Dr Neil Phillips that Professor Tronc refers to were all tendered.

THE EVIDENCE ACT 2008

21 In determining the admissibility of Professor Tronc's evidence, the following sections of the Evidence Act 2008 ("the Act") appear relevant.

(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.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to -

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

(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.

PART 3.3 - OPINION

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

1. Exception - evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

The opinion rule does not apply to evidence of an opinion expressed by a person if -

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

1. 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.

(2) To avoid doubt, and without limiting subsection (1) -

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following -

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

1. 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. General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

SECTION 79 OF THE EVIDENCE ACT 2008

22 Assuming Professor Tronc's opinions would be relevant to facts in issue, it is necessary to consider whether they would be admissible under s 79 of the Act.

23 The meaning of s 79 has been considered by Gleeson CJ in HG v R.[9] In that case the appellant had been found guilty of sexually abusing the child of his female partner who lived with them both. At the trial the defence had unsuccessfully sought to lead evidence from a child psychologist, Mr McCombie. He had expressed the opinion that the child complainant had been sexually abused and that it was likely that she had been abused by her father, when she had stayed with him for one month, rather than by the appellant.

24 On appeal Gleeson CJ of the High Court of Australia held that it had been correctly excluded as it was not opinion evidence within the NSW equivalent of s 79. Gleeson CJ set out the essential elements of valid opinion evidence. He said:

[39] 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 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 section requires that the opinion is presented in a form which makes it possible to answer that question.

[40] Mr McCombie's report referred to a number of matters he took into account in reaching the conclusions he expressed: things he was told by the complainant, by her mother, and by the general practitioner who referred the complainant for assessment; his training as a psychologist; his experience in counselling victims of sexual abuse; and his knowledge of patterns of behaviour of disturbed children. It is not in dispute that psychology is a field of specialised knowledge, and that a psychologist may be in a position to express an opinion based on his or her specialised knowledge as a psychologist. However, the witness had to identify the expertise he could bring to bear and as Clark v Ryan illustrates, his opinions had to be related to his expertise.

[41] If all that Mr McCombie had said was that, based on his study, training and experience, he considered that the behaviour of the complainant during 1992 and 1993, as recounted to him by others, appeared to be inconsistent with her having been sexually abused during that time, (the plausibility of such a proposition is not now in issue), then that might have been one thing. It would have required identification of the facts he was assuming to be true, so that they could be measured against the evidence; and it would have required or invited demonstration or examination of the scientific basis of the conclusion. However, that was not what the defence wanted from him; if it were, no question of s 409B would have arisen. What defence counsel wanted was evidence of his opinion that, although the complainant had been abused, the abuse had occurred back in 1987 when, for a period of a month, she was in the custody of her father, and that it was the father who was the abuser. That opinion was not shown to have been based, either wholly or substantially, on Mr McCombie's specialised knowledge as a psychologist. 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. He did not put to the complainant, for her comment, the suggestion that she had been abused by her father; the complainant told him she could not remember her father. He does not appear to have considered or investigated the possibility of abuse by some third party. He appears to have inferred, for no apparent reason, that the words "stop it daddy", attributed to the complainant by her mother, referred to sexual as distinct from some other form of abuse.

[42] Logically, there were a number of competing possibilities. The complainant may have been sexually abused by nobody; she may have been abused as she claimed, by the appellant; she may have been abused by her father; she may have been abused by both her father and the appellant; she may have been abused by some person or persons unknown. It was not demonstrated, and it is unlikely, that it is within the field of expertise of a psychologist to form and express an opinion as to which of those alternatives was to be preferred.

[43] To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.

[44] 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. 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.

[45] The evidence in question was not admissible as opinion evidence. (citations omitted)

25 In Makita (Australia) Pty Ltd v Sprowles[10] ("Makita's case"), Heydon JA of the Court of Appeal of the Supreme Court of New South Wales set out the reasons of Gleeson CJ that I have cited and summarised the position under s 79 as follows (which is sometimes referred to as the "Makita Principles"):

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 (at 428), 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."[11]

26 In Makita's case Heydon JA examined the common law approach to the receipt of expert opinion evidence.[12] In doing so he canvassed many cases and texts.[13] It would serve no useful purpose to repeat all the references here, but he did observe that in HG v R,[14] Gleeson CJ had construed the Evidence Act provisions as enacting some of the central elements of the common law that Heydon JA had examined.[15]

27 Among the central elements of the common law he identified were the following propositions.

(a) A prime duty of experts in giving opinion evidence was to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.[16]

(b) It is for the trier of fact to decide whether or not to accept the expert's conclusions.

(c) The trier of fact must arrive at an independent assessment of the expert's opinions and their value, and this cannot be done unless the intellectual basis of the opinions is fully explained to the trier of fact.[17] This involves the expert fully explaining the essential integers underlying his or her opinion.[18]

(d) The weight to be given to the opinions of an expert is to be assessed by the trier of fact in the same way as the weight to be given to the evidence of other witnesses.[19]

(e) What an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.[20]

(f) If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material.[21]

(g) An expert witness' paramount duty is to assist the court impartially. That duty overrides the expert witness' obligation to the engaging party. An expert witness is not an advocate for a party.[22]

(h) The expert opinion assists the trier of fact to decide a relevant issue. It is the trier of fact, however, that must weigh and determine on the whole of the evidence the probabilities of the fact in issue.[23]

(i) The expert's opinion is based on the application of his particular expertise to the assumed or proven facts to come to the opinion that he or she gives.[24]

28 In this case it is also important to keep in mind the observations of Dixon CJ in Clark v Ryan[25] where he held that an expert is not entitled to give opinion evidence on matters the jury was capable of deciding for themselves. In particular he said:

The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J. W. Smith in the notes to Carter v. Boehm. "On the one hand" that author wrote, "it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." Then after the citation of authority the author proceeds: "While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it." Adopted by Harding A.C.J. in Reg. v. Camm.

In R. v. Parker, one of the cases establishing the evidentiary use of finger prints to prove identity, Cussen J. in that connexion said that expert witnesses may give in evidence statements based on their own experience or study but that they cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law. To this should be added the observation made by Vaughan Williams J. during the argument of Reg. v. Silverlock, viz. "No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people." The words "profession or course of study" have of course a wide meaning and application; see per Lord Russell C.J. The evidence of Mr. Foster Joy included much that offended against these principles. Some of it was evidence of opinion that lay outside any qualifications that upon any view however benevolent he could be supposed to possess. Some of it was an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves. Perhaps particular pieces of evidence may be picked out concerning the behaviour of the kind of semi-trailer the defendant Clark drove but Mr. Foster Joy was not qualified by practical experience to give evidence of their behaviour in fact. In short no small part of his evidence was outside the range of opinion evidence by experts and as to more still Mr. Foster Joy was not a qualified expert. The objection to its admissibility should have been sustained. (citations omitted)

29 Thus in applying the Makita principles, informed by the prior common law principles, to the proposed opinion evidence of Professor Tronc, the questions to consider are whether there is a field of "specialised knowledge" and whether there is an aspect of that field in which Professor Tronc demonstrates that by reason of specified training, study or experience he has become an expert?

30 No issue was taken about this element by the defendant and I therefore assume that Professor Tronc is an expert in the theory and practice of educational administration which includes the training, support and supervision of teachers and others involved in teaching children.

31 Further, it was not put to me, and I see no issue with, the assertion that Professor Tronc possesses specialised knowledge in this field for the purposes of s 79 of the Act. The term "specialised knowledge" is not defined in the Act. Giles JA of the Court of Appeal of the Supreme Court of New South Wales stated in Adler and Another v Australian Securities and Investments Commission[26] this is deliberately so and has the effect that the term is not restrictive.

32 Is Professor Tronc's evidence "based wholly or substantially" on his specialised knowledge? His conclusionary opinions that the plaintiff seeks to lead are set out above. In substance, Professor Tronc offers to give the following evidence:

(a) Professor Tronc assumes that the plaintiff received inadequate training for her role as an integration aide and then offers the opinion that the school offered inadequate training for her role as an integration aide.

(b) Professor Tronc assumes the Principal and the school failed to provide appropriate support in relation to her concerns about the disturbed conduct of Jodi and then offers the opinion that the Principal and the school failed to provide appropriate support in relation to her concern.

(c) Professor Tronc assumes the Principal and the school failed to provide appropriate support in relation to the plaintiff's reasonable suspicions about Jodi being the victim of child abuse and then offers the opinion that the Principal and the school failed to provide appropriate support in relation to her reasonable suspicions.

33 Heydon JA in Makita's case elaborates at length on the necessity for the expert to reveal the full reasoning by which the conclusion or opinion of the witness has been reached, so that the tribunal of fact may reach its own independent conclusion, by the application of that reasoning or criteria to the facts proved in evidence. Heydon JA cites with approval Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh[27] where Lord President Cooper said:

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, any more than a technical assessor can substitute his advice for the judgment of the Court ... . 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. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. 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.

34 In my view, Professor Tronc does not express an opinion that is wholly or substantially based on his specialised knowledge based on his training, study or experience. I will take two of examples from the section of his 14 July 2009 report dealing with "(c) Deficiencies in the School's Supervision Processes." Professor Tronc says

The management of the school was deficient in its standards of supervision, in the following ways, as revealed by the factual assumptions:

(i) children in the Leviston-Kavanagh composite class were injured at the school, in the classroom, during the school day, by Kodie, and the classroom was frequently at least partly out-of-control, with at least one parent expressing concern about the safety of her child in that classroom.

(ii) any intervention by Leviston, Kavanagh, or the principal McNamee, or the deputy principal Roberts, or the priest Ryan, was inadequate and ineffective in ensuring the continuing safety of the children in the classroom occupied by Kodie, and of the continuing safety of the plaintiff.[28]

35 In my view, those opinions are merely factual observations which, for them to be drawn, do not rely on any specialised knowledge that is based on his training, study or experience. There is no application of scientific reasoning to assumed or observed facts such that would enable a jury to test the accuracy of the opinions drawn by Professor Tronc and to enable the jury to draw its own independent judgment. In my opinion, the same observations apply to Professor Tronc's opinions on the "(b) Deficiencies evidenced in Failures by the School's Management to Achieve Analogous Ethical and Administrative Governmental Policy Objectives";[29] "(d) Deficiencies in the School's Communication Systems"[30] and on the "(e) Deficiencies in the School's Integration Process."[31] The plaintiff does not seek to lead Professor Tronc's opinions under the heading of "(a) Deficiencies Pertaining to Workplace Bullying".[32]

36 To use the description of Gleeson CJ in HG v The Queen[33] such evidence may be characterised as "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."

37 Are Professor Tronc's opinions based on assumed facts or accepted facts? If so they must be identified and proved in some way other than through Professor Tronc. I find that Professor Tronc has not properly identified the assumed facts. He divides his factual assumptions into two categories. First he relies on unidentified facts taken from unidentified medico-legal reports including of a witness who was not called or going to be called, Bailey Shaw. Secondly, he sets out conclusionary facts which include such facts as "the plaintiff received inadequate training, briefing and debriefing for her role as an integration aide; was subject to inconsistencies and uncertainties of professional demands; and was given duties in excess of her training and normal role expectations..."[34]

38 I find that Professor Tronc has failed to properly identify the assumed primary facts to which he applies his specialised skill based on training, study or experience. Further, those facts that he does identify are conclusions of fact and constitute the very matters that he purports to express as an opinion.

39 He has not applied to primary assumed facts his specialised knowledge - as he has not identified any. He has not disclosed his reasoning to allow the jury to apply it themselves and make their own independent judgment. 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.

40 I find that the proposed opinion evidence of Professor Tronc does not satisfy s 79(1) and is therefore inadmissible.

SECTION 135

41 If contrary to my finding, the proposed opinion evidence sought to be led from Professor Tronc does satisfy s 79(1), then I find that my discretion to exclude the evidence is enlivened under s 135 and that in my discretion I exclude the evidence under s 135.

42 My discretion to exclude the evidence is enlivened if the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing.

43 In this case, Professor Tronc's opinions merely reflect the facts he has assumed. The jury's task is to assess these facts for itself as shown by the particulars of the negligence referred to above. These assumed facts are the very facts that the jury is asked to find in considering the allegation of negligence or breach of duty.

44 The defendant contends that the proposed evidence of Professor Tronc does not amount to an opinion which is of any assistance to the jury in deciding the matters before them, as in substance his conclusions are based on the assumption that his conclusions were the fact.

45 The defendant submits that this approach brings into play ss 135 and 136 of the Act.

46 The task of a court in applying s 135 has been described as a "balancing exercise"[35]. It is one where the probative value must be weighed against several dangers. I find that Professor Tronc's evidence would have little probative value, even if admissible.[36] I find it is substantially outweighed by the danger that his evidence might be "misleading or confusing" to the jury.

47 In my opinion, the jury will not be assisted by a purported expert giving evidence squarely upon the ultimate facts in issue. There are many decisions which speak of the danger arising from evidence of this nature particularly as the evidence is introduced as that of an expert and a Professor.

48 In Evans Deakin Pty Ltd v Sebel Furniture Ltd[37], Allsop J of the Federal Court of Australia drew attention to the distinction between an expert giving expert assistance to a party and an expert giving proper expert evidence:

"676 The report is largely a discursive body of views of someone who understands enough of litigation to put forward an argumentative case for how Sebel could defend these proceedings. There are precious few accounting opinions displayed, and such as there may be are buried. Mr Ross may perhaps be forgiven. He deals, to a degree responsively, with the report of Mr McClintock (that was, largely, not objected to). There may well have been great value in those preparing Sebel's case obtaining the views of Mr Ross. Such views would no doubt have assisted them in analysing and preparing the case and in marshalling and formulating arguments. That is the legitimate, accepted and well known role of expert assistance for a party preparing and running a case. Expert evidence in which a relevant opinion is given to the Court drawing on a witness' relevant expertise is quite another thing. There is no ethical reason why it cannot be given by the person providing assistance, as long as that person and the legal advisers understand and recognise the difference between the two tasks, and keep them separate. This was not a report containing accounting opinions, or any other opinions, based on relevant expertise.[38]

49 Professor Tronc is a highly qualified individual. He is also legally qualified, which has perhaps led to his evidence taking on the characterisation described by Allsop J in the passage cited above.

50 His extensive qualifications give rise to a danger that his evidence would, in the words of Gleeson CJ above, have "a spurious appearance of authority". This, coupled with the fact that that many of his purported opinions appear to be more in the way of conclusions based on the factual assertions, could be misleading for the jury and may lead them to place more weight than was due on Professor Tronc's evidence.

51 In Makita's case Heydon JA warned against the expert usurping the function of the trier of fact. He said:

There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?[39]

52 I find that Professor Tronc's evidence would potentially "usurp the function of the trier of fact"[40], which by its nature would be misleading and confusing for the jury. Under s 80 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. Nevertheless, s 80 does not make admissible expert opinion evidence that does not satisfy s 79(1). Nor does it limit s 135.

53 Using the danger of the opinion usurping the function of the trier of fact as a basis for exclusion of evidence does not conflict with s 80 of the Act. Evidence which is otherwise admissible may be excluded under s 135 of the Act.[41]

54 I find my discretion to exclude his evidence is enlivened under s 135 of the Act. In my discretion, I have decided to exclude his evidence.

55 In exercising my discretion I have taken into account Professor Tronc's failure to identify with precision the facts he relies on, the fact that he assumes many of the very conclusions he draws, the fact that many of his opinions do not appear to involve the application of any specialised knowledge, and if they do, that train of reasoning has not been fully disclosed to the jury, and that the matters Professor Tronc opines on are matters that the jury is capable of deciding itself without expert assistance.

CONCLUSION SECTION 135

56 In my discretion I rule that Professor Tronc's proposed opinion evidence should not be admitted.

[1] During the submissions the plaintiff handed up what was called a court book. It was not otherwise relied on at the trial. I was informed that the reports that had been served on the defendant appeared in that book as follows: 14 July 2009 (104-208), 14 May 2010 (209-226) and 11 May 2010 (227-281)

[7] Tr 673 line 14. [correct line reference?]

[9] [1999] HCA 2; (1999) 197 CLR 414 at 427, [39}-[44]

[10] [2001] NSWCA 305; (2001) 52 NSWLR 705

[12] [2001] NSWCA 305; (2001) 52 NSWLR 705

[13] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59]- [82]

[14] [1999] HCA 2; (1999) 197 CLR 414, at [39]-[44]

[15] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [84]

[16] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59]

[17] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [68] and [79]

[18] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [71]

[19] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [82]

[20] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [64]

[21] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [64]

[22] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [77]

[23] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [67] citing Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645 per Dixon CJ, McTiernam, Kitto, Taylor and Windeyer JJ

[24] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59] citing Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40 per Lord President Cooper and at 42 per Lord Russell

[25] [1960] HCA 42; (1960) 103 CLR 486 at 492

[26] [2003] NSWCA 131; (2003) 179 FLR 1 at 137

[27] 1953 SC 34 at 39-40

[28] Professor Tronc's report of 14 July 2009, p 23

[33] [1999] HCA 2; (1999) 197 CLR 414 at 428, [41]

[35] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397

[36] Ibid, at [10] per Black CJ, Emmett and Midleton JJ: "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

[37] [2003] FCA 171

[38] [2003] FCA 171 at 676

[39] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [87]

[40] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [87]

[41] O'Brien v Gillespie; Commonwealth Bank of Australia v O'Brien (1997) 41 NSWLR 549