Plaintiff v Defendant

1 In January 2010 the plaintiff, Rhonda Thomas, was employed by the defendant, the State of Victoria. She predominantly operated a mobile library, known as a 'mobile area resource centre' or the 'MARC van', across seven primary schools in the Gippsland area. Her duties involved loading and unloading books and teaching aides from the van as well as preparing it for children to visit by affixing metal stairs to the side entrance. The plaintiff claims her duties involved heavy, awkward lifting and the application of sustained force to her lumbar spine. She alleges that the defendant failed to take reasonable care of her safety by providing her with a safe place of work and a proper and safe system of conducting the work.

2 This ruling concerns the admissibility of a document discovered by the defendant. The plaintiff seeks to have the document tendered as a business record under s 69 of the Evidence Act 2008 ('the Act'). The defendant objects on grounds that it is not a business record and, even if it is, it falls foul of the hearsay and opinion rules. The defendant further says that, assuming the document is admissible, I should exercise my discretion under s 135 of the Act to exclude it, or parts of it, because its probative value is substantially outweighed by the danger of unfair prejudice.

3 For the reasons that follow, I consider the document is admissible as a business record, and falls within the exceptions to the hearsay and opinion rules. However, in the exercise of the discretion under s 135, I consider that parts of the document - those in which opinions are expressed as to risk and hazardous manual handling - create a danger of unfair prejudice that substantially outweighs their probative value. This is especially so in circumstances where the document was not prepared for the purposes of litigation and so may mislead or confuse the jury. The vice that particularly concerns me is that the jury may incorrectly reason that it carries the force of an expert opinion on liability and causation.

4 I therefore refuse to admit the document as a business record.

5 The plaintiff seeks to have a document entitled 'Lardner MARC Van Assessment' ('the document') tendered into evidence. The document was discovered by the defendant. It is dated 4 August 2011. It was produced by Marsh Pty Ltd ('Marsh') which, I am told, is a consultancy located in Melbourne. The document is not signed although reference is made to a qualified ergonomist, Bronwyn Walker, who performed the assessment and reported back to Marsh.

6 I was informed from the bar table that the plaintiff's solicitors had contacted Marsh and were informed that Ms Walker no longer works at Marsh and that Marsh was not prepared, understandably, to provide Ms Walker's contact details. A Google search was also conducted but did not reveal any information. In the circumstances the plaintiff complains that she is unable to serve a subpoena on Ms Walker to attend court and give evidence as the maker of the document.

7 The document takes the familiar form of a risk assessment, provided upon internal request, with an accompanying manual handling assessment. It states on its cover that it was prepared for the Department of Education and Early Childhood Development.

8 The first section of the document is headed 'Introduction'. It states that the aim of the assessment was to:

1. evaluate the risk factors associated with the tasks performed, equipment used and environment of Rhonda Thomas;
2. review compliance of these against both relevant Australian Standards and the guidelines for manual handling as set out in the Victorian OHS Regulations 2007; and
3. provide advice in relation to the management of these risks to minimise the risk of injury.

It further states that: 'A qualified ergonomist completed an ergonomic assessment for the Lardner MARC Van located at Lardner and District Primary School, Burnt Store Rd, Lardner on the 17th of June 2011.' It describes the methodology used in the assessment as follows:

A qualified ergonomist completed the assessment using guidelines set out in the Victorian OHS Regulation 2007 and requirements defined within relevant Australian Standards referenced below. Risks were identified and controls recommended in accordance with the DEECD Occupational Health and Safety (OHS) risk management procedures to minimise the risk of injury and ensure compliance.

It specifies that the consultant who undertook the assessment was 'Bronwyn Walker, BHSc (Erg), Consultant, Marsh.'

9 The second section is headed 'Assessment Details and Background'. It states that 'Anne Southall, Principal of Lardner and District Primary School, requested an assessment of the Lardner MARC Van following an injury to Rhonda Thomas.'

10 The third section is headed 'Assessment Findings'. It sets out what may be described as the factual matrix for the assessment. It describes, for example, the manner in which the MARC van was to be driven from school to school, the size and contours of the van, visibility issues, the procedure for attaching the metal stairs to the side entrance, the procedure for loading and unloading the van with books and teaching aids, and so on. It is clear from the language used - 'Rhonda reported that she is bending over or crouching on the ground to complete this [task]' - that the information contained in this section was provided either directly by the plaintiff or by other employees who had knowledge of the MARC van.

11 The fourth section is headed 'Recommendations'. It begins by stating that 'Rhonda Thomas and other employees of the MARC Van were consulted with in relation to the tasks undertaken and suggested controls which could be implemented to reduce the risk associated'. It then sets out a schedule with 'Hazards' in one column, a corresponding 'Risk' assessment in another column, and 'Suggested Controls' in a third column. For example, the hazard 'putting steps in place' is assigned an 'extreme' risk rating and it is suggested that 'mechanical steps' be installed; 'loading books into the back of the van' is assigned an 'extreme' risk rating and it is suggested that a 'trolley with bed at waist height' be obtained.

12 The fifth section is headed 'Appendix A'. It again takes the form of a schedule with 'Inspection Item' in one column, a 'Yes', 'No' or 'N/A' in a second column, and 'Description and Location of the Hazard' in a third column. For example, it asks 'Is there frequent or prolonged bending down where the hands pass below mid-thigh height?', to which the answer is 'Yes', and the descriptions 'Return tub placed on floor of van (6 classes per day)' and 'Returning books onto lower shelves' are given. The schedule covers some 17 items in this way and finds that all but two of them constitute hazardous manual handling.

13 The sixth section is headed 'Appendix B'. It contains five black and white photocopied photographs of the MARC van, inside and out, and the metal stairs that attach to the side door. The 'literacy boxes' used to stores books and teaching aides are also depicted.

69 Exception - business records

(1) This section applies to a document that -

(a) either -

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made -

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation -

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

...

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

15 A document that is admissible under s 69 must still conform with the other rules of admissibility. Thus, a document in which an opinion is expressed must not fall foul of the opinion rule, which is to say it must satisfy the exceptions provided for in ss 78 and 79 of the Act.[1] In other words, the opinion must either be based on what the person saw, heard or otherwise perceived and be necessary to obtain an adequate understanding of their perception, or it must be an opinion wholly or substantially based on a person's specialised knowledge, training study or experience.

16 Further, under s 135 the Act, I have a discretion to exclude evidence as follows:

135 General discretion to exclude evidence

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.

And I note that under s 136 of the Act I have a discretion to limit the use that can be made of evidence if there is a danger that it will be unfairly prejudicial to a party or be misleading or confusing.

17 The plaintiff firstly submitted that the document is admissible as a business record. The document was produced by a consultant for the defendant and the name of the person who undertook the assessment, Bronwyn Walker, is included. Nor does the hearsay rule apply because Ms Walker may reasonably be supposed to have had personal knowledge of the asserted facts. Alternatively, if she did not have that knowledge, it may be inferred that it was directly or indirectly supplied by a person or persons, namely Rhonda Thomas and other MARC van employees, who had or might reasonably be supposed to have had such knowledge.

18 The plaintiff secondly submitted that the opinions contained in the document are not fatal to its admissibility. It was submitted that the decision of the Federal Court in Ringrow Pty Ltd v BP Australia Ltd[2] is authority for the proposition that opinions expressed in business records may be admissible depending on the circumstances. The plaintiff submitted that, if the Court is against her on this point, then the hazardous manual handling part of the document should go in (i.e. Appendix A).

19 The plaintiff thirdly submitted that this is not a case where s 135 has any work to do because the probative value of the evidence is high, being evidence that corroborates the plaintiff's evidence, whereas the danger of unfair prejudice is low. This is especially so since the document was discovered by the defendant - indeed it was produced at the defendant's request - and the plaintiff can be cross-examined on all of the matters in the document to establish whether what she reported was accurate and reliable.

20 The plaintiff fourthly submitted, in the alternative, that the document should be admitted in light of the High Court's decision in Nelson v John Lysaght (Australia) Ltd.[3] It was said that Nelson is authority for the proposition that evidence may be adduced to shows that steps were taken to reduce a risk after a plaintiff's injury.

21 The defendant firstly submitted that the document has no author and was clearly not written by Bronwyn Walker. The only 'author' as such is Marsh. In the circumstances it cannot be said that it contains representations made by a person who had personal knowledge of the asserted facts or on the basis of information directly or indirectly supplied by such a person. In short, while the assessor was Ms Walker, the author remains unknown. And to treat Ms Walker as the person whose 'asserted facts' are being relied on is to engage in improper speculation. The Court cannot therefore be satisfied that the document on its face meets the requirements of s 69.

22 The defendant secondly submitted that the document is effectively being relied on as an expert opinion. Yet the Court cannot be satisfied, without knowing more about the document and how it was produced, that the opinions expressed meet the requirements of ss 78 or 79 of the Act. If necessary, the defendant submitted, the Court should divide the document into 'facts' and 'opinions' and only allow the former to be admitted as evidence. In advancing this submission the defendant pointed to the same case of Ringrow. Contrary to what was submitted by the plaintiff, Ringrow was said to be authority for the proposition that where the opinion is not within the province of the person making it, it will infringe the rule. The facts grounding the opinion need to be clear on the face of the document.

23 The defendant thirdly submitted that Nelson does not have any bearing or authority on questions of admissibility. It is solely concerned with a situation where a plaintiff has adduced evidence that changes were made to a workplace to prevent a certain risk, and so an evidentiary onus falls on the defendant to rebut the proposition that those changes should have been introduced earlier (that is, prior to the plaintiff's injury).

24 The defendant lastly submitted that s 135 of the Act has work to do because the probative value of the document is low whereas the danger that it will create unfair prejudice is high. This is especially so in circumstances where opinions are expressed about 'frequent' and 'prolonged' risks of an 'extreme' nature that are not coming from a qualified expert whose opinion has been produced for the purposes of litigation and will be tested by way of cross-examination.

25 I note that the moving party on a question of admissibility must establish matters of fact on the balance of probabilities in accordance with s 142 of the Act.

26 The starting point is to determine whether the document is a 'business record' for the purposes of s 69(1). I consider that it is. It was plainly produced at the request of the defendant and traverses matters that are part of the daily life of Australian businesses. It is common for businesses to get risk assessments done, either prior to or after workplace injuries, and I consider that the representations in the document meet the requirements of the section. I note that, as Button J explained in R v Adams (No 5),[4] the rationale for the 'business records' exception to the hearsay rule is 'one of reliability founded upon regularity and repetition, combined with an absence of motive on the part of a representor to be untruthful (consciously or unconsciously), in the absence of the possibility of subsequent civil or criminal litigation.'[5] The document before me displays all these features: it is a product of the defendant's business practices, which tend towards regularity and repetition, and displays an absence of motive and/or an awareness of pending litigation.

27 There is at first instance some reluctance to construe the document as a 'business record' in that the representations it contains are observations of tasks performed in connection to the MARC van and opinions about those tasks, that is, whether they are being performed in a way that is risky or hazardous. Can such a document be said to be an internal record of a business for the narrow purposes of s 69? The Court of Appeal considered this question in Lancaster v The Queen.[6] That case concerned whether DHS records, on which a neuropsychologist based his opinion, were admissible as business records. The Court of Appeal said:

As has been noted, the judge reasoned that, because the entries "were observations and conclusions about a particular case ... so [that] the various officers could properly perform the statutory duties of child protection in a cautious and prudent way" they were not "records that went to any business purpose or aspect of the department".

With respect, however, that overlooked that, for the purposes of the Evidence Act, "business" includes a profession, calling, occupation, undertaking or activity engaged in or carried on by the Crown in any of its capacities, and thus includes the activities of rendering social welfare services which the DHS exists to provide. As so defined, the records maintained by the DHS of the facts, opinions and activities involved in rendering those services to the complainants were business records.

It is the same with the records of the hospitals and other agencies which were involved. Prima facie, individual patient records maintained by a hospital, doctor or other health care provider are business records of the activities carried on by the health care provider and, therefore, are business records, even though, as the judge put it, they concern the individual patients as opposed to the running of the hospital or health care provider's practice.[7]

I consider that the situation in the case before me is analogous to that which is discussed in the above quoted paragraphs.

28 Importantly, as Vickery J observed in ICM Investments Pty Ltd v San Miguel Corporation [Ruling No 1],[8] s 69 does not 'render business records as such admissible. It concerns representations in a document which is or forms part of a business record ... it is only the defined representations containing an asserted fact (or facts) which may be admitted into evidence. The representations are admissible if s 69(2) is satisfied.'[9]

29 What are the asserted facts relied upon by the plaintiff in seeking to tender the document? The plaintiff submitted that if I am against her in allowing the entire document to be tendered then, in the alternative, I should allow Appendix A. It seems the asserted facts she wishes to adduce are those contained in this latter section. As I have said, this section identifies inspection items, such as 'Is there frequent or prolonged bending down where the hands pass below the mid-thigh height?' Next there is a column asking if that activity occurred: 'Y or N or NA'. Finally, it records the description and location of the hazard, such as 'Return tub placed on floor of van (6 classes per day)' or 'Returning books onto lower shelves.' The representations combine facts and opinions. The facts are the information recorded about the activities themselves. The opinions are the conclusions of the assessor (and author) about whether those activities are hazardous.

30 The next question is whether the hearsay rule applies pursuant to s 69(2). I must be satisfied that the person who made the representation had or might reasonably be supposed to have had personal knowledge. Alternatively, I must be satisfied that he or she made the representation on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of an asserted fact. Here, although the author of the document is unknown, I can be confident that the risk assessment was conducted by Bronwyn Walker and that the findings set out are her findings based on her consultations with Rhonda Thomas and other MARC van employees. I am therefore satisfied that the document meets the requirements of s 69(2) insofar as Rhonda Thomas and those other employees would have given her information on what they saw, heard or otherwise perceived (as required by s 69(5)).

31 As for s 69(3), there was no suggestion from either party that the document was prepared for the purposes of this litigation, or that litigation was even contemplated at the time that it was produced. I therefore do not consider that the 'exception to the exception' applies.

32 Next I turn to the question of whether the opinions expressed in the document are caught by the opinion rule. The starting point is that they are prima facie inadmissible as per s 76. However, because the opinions expressed are wholly or substantially based on Ms Walker's specialised knowledge, training, study or experience, I consider that the exception in s 79 applies. The document records that the assessment was completed by a 'qualified ergonomist', Bronwyn Walker, who completed the assessment and made recommendations 'in accordance with DEECD Occupational Health and Safety (OHS) risk management procedures to minimise the risk of injury and ensure compliance'. Ms Walker's qualifications are set out and there was no suggestion that Marsh was not a company that provides assessments of this kind.

33 Finally I turn to the application of s 135 and my discretion to exclude the evidence. I agree with the defendant that this section has work to do in this case. The document is sought to be tendered on an issue which is central to these proceedings, that is, the plaintiff's place of work, the MARC van and the system of conducting work from the MARC van.

34 Close analysis of the document reveals the following. Section 2 identifies tasks completed by the plaintiff and other employees working in the MARC van or having something to do with it. Section 3 sets out in more detail the nature of the tasks. Section 4 provides risk ratings and controls recommended in accordance with the 'OHS Act 2004 and the DEECD OHS Risk Management Procedure'. This section has a table which assigns a numerical value which is not explained, a rating of risk for hazards, which , in the table is described as 'Extreme' or 'High', a column labelled 'Suggested Controls' and a final column headed 'Reviewed Rating'; and Appendix A, which, I have already described. I note that Appendix A considers 'Inspection Items', whether they are present, not present or not applicable, and a description and location of the 'Hazard'.

35 The document is a 'Risk Assessment' prepared for the defendant. It is not an expert opinion commissioned for litigation. The methodology employed by the author is identified but not readily understood from the face of the document. For example, I do not understand the numerical value assigned in section 4, or why the tasks are considered "Extreme' or 'High'. Appendix A refers to 'Hazards' and it is not clear on the face of the document why the task constitutes a hazard. It is a conclusion with no path of reasoning. Terms such as 'Hazard' and 'Extreme' need to be properly construed in the context of the document. In the absence of such explanation there is the potential for such strong language to unfairly prejudice the jury, or alternatively to mislead or confuse them.

36 The methodology adopted in the preparation of the document clearly requires expert knowledge and training. In order for the jury to properly consider the document to assess the probability of a fact in issue, the methodology and conclusions need some explanation. In the absence of such explanation there is a real risk that the jury may speculate and make unsound conclusions relying on the document.

37 Whether or not the plaintiff can call evidence to introduce the document is not determinative as to whether it is a business record. However, in exercising my discretion under s 135, I note that in practical terms the plaintiff will be able to give evidence herself about the tasks she performed using the MARC van and the system of work. Additional witnesses can be called on this fact in issue. The plaintiff can be asked about her participation in the risk assessment conducted by Marsh/Bronwyn Walker and she can be asked if the report accurately reflects what she told the assessor. The plaintiff and other witnesses can be asked about what, if any, changes occurred and when they occurred. This will ensure that the jury is not invited to speculate about any changes that took place after the document was prepared. Witnesses can be called to determine if any changes made were based on recommendations made in the document. To that end the plaintiff has not said that Anne Southall, the Principal of Lardner and District Primary School who requested the report, is not available to give evidence. These are forensic decisions for the parties.

38 The real vice is to allow the absolute tendering of the document at the outset such that the plaintiff can open her case by reference to it. I consider it has low probative value and is unfairly prejudicial to the defendant. I do not accept that the document speaks for itself. It is not clear what changes, if any, were made to the tasks identified in the document and if the document did spur those changes. These are matters of evidence. There has been no evidence or submission that the plaintiff cannot call evidence about the document, its commission, who participated in it and what if any changes were made as a result of the document.

39 The probative value of the opinions expressed in the document is necessarily low because it was not produced for the purposes of litigation. Ms Walker was not consulted in the ordinary way and asked to give her opinion on the stringent basis required by the code governing expert opinions. Her opinions are for an entirely different purpose, namely for assessing ongoing risk in the workplace and putting in measures to reduce that risk, which, while relevant, should not be mistaken for opinions on the topics of liability and causation. There is a real danger of unfair prejudice to the defendant if the opinions in the document are put to the jury. The jury may reason that the opinions do have some forceful bearing on those topics. I am therefore led to the conclusion that the document may not only create unfair prejudice but also mislead or confuse the jury.

40 In short, I consider that the probative value of the opinions contained in the document does not substantially outweigh the risk of unfair prejudice to the defendant, even if the earlier sections of the document are more benign. While the defendant can cross-examine the plaintiff as to those aspects of the document that she provided information about, crucially, it cannot cross-examine on the fourth and fifth sections in which strong opinions are expressed.

41 I note the conclusion of Hely J in Ringrow that the valuation reports sought to be adduced as business records in that case did not 'squarely address' the issue raised in those proceedings and would have required his Honour to 'infer or deduce from a report prepared for a different purpose' whether it had any relevance or probative value.[10] In other words, since the opinion in the business record was not prepared with litigation in mind, its reasoning process would stand in substitute for submissions made from the Bar table. The valuations in Ringrow were simply that, valuations, which could not speak to the amount of goodwill in the business.

42 Similarly, I consider that the riskiness of the tasks undertaken by the plaintiff and whether they constitute hazardous manual handling are questions of fact for the jury, which should not be pre-empted at the outset. While experts may give opinions about such matters, they do so under strict guidelines and rules, and are generally available for cross-examination. It would be unfair to the defendant to allow such an opinion into evidence in circumstances where the opinion was not produced under stringent conditions and no cross-examination is possible.

43 For completeness, I consider that the plaintiff's submission that Nelson provides an alternative basis to tender the document is misconceived, as that case was concerned with the raising of an evidentiary onus on the part of the defendant and not the admissibility of evidence.

44 I refuse to admit the document as a business record.

[1] Lancaster v The Queen [2014] VSCA 333; (2014) 44 VR 820, 840 [69] (Nettle and Redlich JJA and Almond AJA). See also ICM Investments Pty Ltd v San Miguel Corporation [Ruling No 1] [2013] VSC 463, [43] - [55] (Vickery J).

[2] [2003] FCA 933; (2003) 130 FCR 569 ('Ringrow').

[3] [1975] HCA 9; (1975) 132 CLR 201 ('Nelson').

[4] [2016] NSWSC 1563.

[6] [2014] VSCA 333; (2014) 44 VR 820.

[8] [2013] VSC 463.

[10] [2003] FCA 933; (2003) 130 FCR 569 [27].