Plaintiff v Defendants

2 In Dasreef Pty Ltd v Hawchar,[1] the High Court stated that a failure to demonstrate that an opinion expressed by a witness is based on a witness' specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. The court directed that, generally, trial judges confronted with an objection to admissibility of evidence should rule upon that objection as soon as possible.

3 The second defendant, supported by the first defendant, objected to the report of Dr Cubitt, an engineer to be called by the plaintiff. Dr Cubitt provided a report dated 5 October 2010. The primary objection is that Dr Cubitt's expressed opinions are not wholly or substantially based in his specialised knowledge, which is engineering.

4 Section 76 of the Evidence Act 2008 (Vic) provides:

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

Section 79(1) of the Act provides an exception to that admissibility rule.

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.

5 I recently set out the principles that are relevant when considering the admissibility of expert opinion in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 3).[2] In that case, I stated that, in Dasreef[3] the plurality in the High Court stated that when considering opinion evidence admissibility is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made.[4] A two-stage inquiry is required.

6 The first inquiry is why the evidence is relevant.[5] If relevance is established, and no objection was taken that the proposed evidence was not relevant, at the second stage of the inquiry admissible evidence must satisfy two criteria. The witness who gives the evidence must have 'specialised knowledge based on the person's training, study, or experience'. The opinion expressed in evidence by the witness must be 'wholly or substantially based on that knowledge'. It is ordinarily the case, as Heydon JA (as his Honour then was) said in Makita (Australia) Pty Ltd v Sprowles,[6] that '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'.

7 My summary in Dura[7] of the approach to be taken in assessing admissibility was that admissible expert opinion must demonstrate not just that the opinion, and the experts reasoning of it, has a proper basis in the witness' specialised knowledge, but also that the opinion, and reasoning, has a proper basis in assumed or observed facts. The matters that will usually be considered at both stages of the inquiry that considers whether the exception under s 79(1) renders opinion evidence admissible may conveniently be referred to as four 'rules' (one of which is in three parts), which are:

(a) is the opinion relevant (or of sufficient probative value[8]) (the relevance rule);

(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);

(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):

1. are the 'facts' and 'assumptions' on which the expert's opinion is founded disclosed (the assumption identification rule);
2. 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 (the proof of assumptions rule);
3. 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)?[9]

8 In the proceeding, the plaintiff seeks damages for personal injury. The plaintiff was a cleaner, employed by the first defendant, who slipped and fell sustaining injury when cleaning a boys' toilet at the second defendant's school. The plaintiff was cleaning up spilled liquid soap and the third defendant was the supplier of the soap and the dispenser.

9 A brief summary of the content of Dr Cubitt's report is desirable. Dr Cubitt states or describes -

(a) his instructions,

(b) the assumptions of fact that he made concerning the plaintiff's accident,

(c) his inspection of the incident site,

(d) that he conducted tests to determine the corrected coefficient of friction and his interpretation of those tests.

(e) His report refers to parts of the Building Code of Australia 1996 and the requirements of AS 1428.1-1993 - General Requirements for Access - Buildings published by Standards Australia. He expresses the opinion that the tiled floor in the toilet failed to provide an adequate slip resistant surface when wet or covered in soap and the floor failed to comply with the requirements of AS 1428.1-1993 and hence the Building Code of Australia 1996.

(f) Dr Cubitt then analyses an aspect of the requirements of the Occupational Health and Safety Act, expressing the opinion that there was a failure to comply with the requirements of the Occupational Health and Safety Regulations. Dr Cubitt has not directly articulated the particular aspects of this failure although he goes on to refer to an obligation on the persons in control of the workplace to carry out a risk assessment of the pedestrian movement throughout the building and its surroundings. Dr Cubitt suggests that such an assessment would have identified the problem of water and soap on the tiles in the boys' toilets. He then suggests that if the floor in the boys' toilet had a suitably slip resistant surface such as those identified in AS 1428.1-1993 then the probability of the plaintiff slipping on the floor would have been very low.

(g) Dr Cubitt then opines about the risk of soap on the floor from vandalism to toilet facilities before concluding that he neither has the relevant facts nor the relevant expertise to express any opinion. He suggests that the risk of soap spillage onto the floor and the quantity of any spillage could have been minimised by using commonly available products. Its specifications are not identified and no basis either in testing, knowledge or reasoning is offered for the suggestion that the alternative product would perform better in the circumstances. The identified alternative product was not subject to any testing or examination by Dr Cubitt.

(h) In his conclusions, Dr Cubitt restates these propositions with particular emphasis upon the system of supervision of the toilet block, that is, of the behaviour of users of the facility, and the alternative soap dispenser.

(i) Dr Cubitt includes four appendices. Appendix A is photographs taken during the site inspection. Appendix B is general comments on the coefficient of friction. Appendix C is an analysis of friction required for walking on level and sloping surfaces and Appendix D is Dr Cubitt's CV. Although the plaintiff sought to draw on Dr Cubitt's CV in seeking to answer the objections to the report, it is a generic list of dot points providing little concrete information relevant to the issues raised against the report.

10 I ruled that those parts of the report that I have summarised in sub-paragraphs (e)-(h) inclusive of the preceding paragraph are inadmissible.

11 I am satisfied that the remaining parts of the report, evidence Dr Cubitt will give concerning his inspection of the site and his testing of the coefficient of friction, are relevant and that Dr Cubitt's opinions appear to be based on both his expertise and sufficiently identified factual assumptions. Accordingly, I rejected the objection taken by the defendants to sections 1 and 2 (to the end of the first sentence at the top of p 293 of the plaintiff's courtbook) of the report, the certificate dated 5 October 2010 and the appendices to the report. The remainder of the report is inadmissible as it fails to observe either the expertise basis rule or the factual basis rules as I will now explain.

12 At the outset, I observe that there is an appearance that Dr Cubitt has done no more than pay lip service to the obligations under the Expert Code of Conduct. Dr Cubitt does not acknowledge that he is aware of the provisions of the Civil Procedure Act 2010. His report, but not its proposed use in this proceeding, predates the coming into force of that Act. There was no need for a voir dire to resolve the objections to admissibility and Dr Cubitt has not been cross-examined prior to this ruling. For this reason, I make no finding about whether Dr Cubitt's statement, or certification, of compliance with the obligations that the court expects experts to discharge was appropriate in this case. Such statements are common practice. It is unnecessary to restate the importance to the parties in preparing litigation and assessing their risks and to the court in the efficient conduct of trials that such statements and certifications are impartial, independent and reliable.

13 Dr Cubitt's opinions about the risk of soap on the floor from vandalism to toilet facilities and his opinion that the incidence and consequence of sporadic vandalism could have been better controlled are not justified by reference to assumed facts, or Dr Cubitt's expertise, knowledge, or experience as disclosed on the face of his report. He expressly states that he is not an expert in 'supervision in schools'. I am unable to infer from the report that Dr Cubitt could justify, appropriately and admissibly, any aspect of that opinion in the witness box. In any event, such matters should be clear from the report. To transpose the words of Heydon JA in Makita, Dr Cubitt's evidence fails to explain, when it must, how the field of specialised knowledge in which Dr Cubitt professes expertise by reason of 'training, study or experience', and on which this opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded.

14 Dr Cubitt's opinion that the tiled floor failed to comply with the requirements of AS 1428.1-1993 and hence the Building Code of Australia 1996 is not based on 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. Dr Cubitt has extracted a part of the Building Code that relates to general requirements for access to buildings. The report fails to identify why it assumes that this part of the Building Code and the Australian Standard that is referenced, which deals with the floor surfaces on ramps, walkways and landings, has any application to the floor surface of a toilet facility that is not an access way. Dr Cubitt draws further on this Standard when, having expressed the opinion that the tiled floor of the toilet facility has inadequate slip resistance when liquid soap is present, he contends that the probability of the plaintiff slipping would have been very low if the floor had a suitably slip-resistant surface such as those identified in the Standard for ramps, walkways and landings. There is no transparent path of reasoning to this opinion evident in Dr Cubitt's report. Dr Cubitt did not conduct any tests, as he did with the tiles in the toilet, to calculate the variation in the corrected coefficient of friction when water, or water and liquid soap are added in the assumed manner to each of the different surfaces specified by the Standard. It is not apparent that the slip resistant surfaces specified for ramps, walkways and landings were tested with liquid soap present for the preparation of the Standard. The application of specialist knowledge in the expression of this opinion is not evident. Counsel for the plaintiff submitted that there was, constituted by the tiled floor between the trough and the urinal and from the door, a walkway, but this semantic gymnastics with the concept of a floor has not been adopted by Dr Cubitt as part of his reasoning.

15 ISS Hygiene Services Pty Ltd, the third defendant, supported the objection adding that it was prejudiced as it had not been served with the report now being relied on. I am not persuaded that the report in its original form could have been relied on against ISS Hygiene Services, having regard to the issues raised on the pleadings. However, having excluded the section of the report that deals with the soap dispenser, and the suggested need for tamper-proof soap dispensers, the issue of possible prejudice through late service of the report no longer arises.

[1] [2011] HCA 21; (2011) 243 CLR 588 [48], [135].

[2] [2012] VSC 99 (30 March 2012).

[3] [2011] HCA 21; (2011) 243 CLR 588 (22 June 2011) at [31].

[5] Relevance is governed by Part 3.1 of the Act.

[6] [2001] NSWCA 305; (2001) 52 NSWLR 705, 744 [85], approved in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [37].

[7] [2012] VSC 99, [98].

[8] bearing in mind the discretion under s 135 of the Act.

[9] See also the summary list of considerations identified by Austin J in ASIC v Rich [2005] NSWSC 149; (2005) 190 FLR 242 [256].