Hubbard v CPB Contractors Pty Limited [2020] NSWSC 1921

Supreme Court New South Wales

Medium Neutral Citation: Hubbard v CPB Contractors Pty Limited [2020] NSWSC 1921 Hearing dates: 8 December 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: The tender of the report of David Cockbain dated 22 May 2015 is rejected. Catchwords: EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether report admissible — Nature of contents of report — Relevance Legislation Cited: Civil Liability Act 2002 (NSW), s 5B Evidence Act 1995 (NSW), s 79 Cases Cited: Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Jacobs (a pseudonym) v The Queen [2019] VSCA 285 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Texts Cited: Carter v Boehm, 1 Smith L.C., 7th ed. (1876) Category: Procedural and other rulings Parties: Stephen John Hubbard (Plaintiff) CPB Contractors Pty Limited (Defendant) Representation: Counsel: E G Romaniuk SC with P Menary (Plaintiff) M Hutchings (Defendant)

Solicitors: LHD Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2014/280071 Publication restriction: None

REVISED EX TEMPORE Judgment 1. The plaintiff seeks damages in respect of an accident that he says occurred at premises occupied by the defendant on 5 October 2011. He says that on that day he attended at the defendant's premises as part of his duties as a security officer when, whilst attempting to close a gate, he fell in a ditch. The plaintiff alleges that his accident was caused by the negligence of the defendant. 2. The plaintiff tenders a report of Mr David Cockbain of the SAFE Group dated 22 May 2015. The defendant objects to the tender of the report. 3. The defendant says that the opinion, as set out in the report, fails to satisfy the requirements of s 79 of the Evidence Act 1995 (NSW), having regard to the principles set out in well-known cases such as Dasreef Pty Ltd v Hawchar. [1] 4. Whilst the defendant points out that there is no curriculum vitae attached to the report, there is reference to Mr Cockbain's experience and expertise in the body of the report. I do not understand that the primary objection relates to expertise. 5. Mr Cockbain did not attend the scene of the accident. That, of itself, may not render such an expert report inadmissible. By the time that Mr Cockbain might have been able to visit the scene when retained in 2015, it may be unlikely that there would be much similar about the site. 6. The defendant submits that, on a proper analysis of Mr Cockbain's report, it is little more than a recitation of lengthy assumptions, statements of general principle in respect of risk management and occupational health and safety, followed by statements as to what Mr Cockbain believes was foreseeable and then suggestions as to what could have been done to prevent the accident. 7. Mr Romaniuk of Senior Counsel on behalf of the plaintiff accepts that there are some problems with the report and that some of the content of the report may not be necessarily relevant to the issues in the proceedings, but he presses those paragraphs relating to the issue of preventability. 8. Of course, in any action under s 5B of the Civil Liability Act 2002 (NSW), it is necessary for the plaintiff to identify the risk of harm and then establish the elements of s 5B, one of which is foreseeability, another which is that the risk is not insignificant, and another is that there are reasonable precautions which should have been taken by the defendant. 9. Mr Romaniuk presses parts of the report on the basis that Mr Cockbain is qualified and able to offer an opinion on the reasonable precautions which should have been taken. 10. As identified in Makita (Australia) Pty Ltd v Sprowles, [2] "The basal principle is that what an expert gives is an opinion based on facts." 11. The opinion of an expert is not admissible as proof of the facts. As such, I would treat Mr Cockbain's lengthy recitation of the facts as his assumptions. Nor should an expert offer an opinion on foreseeability. Foreseeability is a question of fact to be determined by me. The opinion of a safety expert that a particular accident, such as someone falling in a ditch, should have been foreseeable on the part of the particular defendant is not relevant or admissible. 12. Normally expert reports are necessary in a case in which there is a specialised knowledge that is relevant to the issues between the parties which enables an expert to explain to the Court something about the assumed facts. 13. As Dixon CJ said in Clark v Ryan: [3] "On the one hand … 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." 1. As was further observed by the Court in Honeysett v The Queen: [4] "[23] … Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience." 1. I accept that Mr Cockbain is an expert in occupational health and safety and risk management. His reports are well-known in this Court. However, on any view, much of his report is of little probative value. After the introduction, he then sets out his assumptions (that is, in paras 19 to 45). Although they are identified as facts by Mr Cockbain, they are only assumptions for the purposes of his report. 2. Included in his assumptions are a number of photographs. The source of the photographs is not clear. Bearing in mind that Mr Cockbain did not attend the site, he could not have taken the photographs. I would infer that the photographs were provided to him by the solicitors for the plaintiff but as Mr Hutchings points out, there is no identification of when they were taken. 3. Further, figure 4 purports to be a photograph of the ditch the plaintiff fell into, highlighted by the red lines. It is not apparent from the photograph itself where this ditch might be. It could be anywhere. Further, it is not apparent that there is any ditch in the photograph. 4. I should emphasise that this says nothing about the validity of the plaintiff's evidence but the point raised by Mr Hutchings is that an undated photograph of an area which is not properly identified, which the expert says shows something which is not clear on the face of the photo, can lead to problems in the fact-finding exercise. 5. In the second part of Mr Cockbain's report, that is, pt 6.2, he provides an analysis of risk management, risk assessment, and how it is undertaken. In pt 6.3 he then provides an analysis of how people can see things; that is, visual perception. Plainly, he has no greater expertise than a layperson to offer an opinion on sight. 6. In s 7 he deals with foreseeability and preventability. He includes a number of paragraphs of a general nature, dealing with how many accidents involve injuries to certain parts of the body, and I assume why it is necessary that occupiers identify hazards. Finally, he deals with questions of preventability and provides a conclusion, which is in effect a summary of his report. 7. Mr Romaniuk seeks to rely only on limited paragraphs to the effect that: 1. the defendant could have redesigned the water management aspects of the site so that the drainage ditch was not located in the area where it was; 2. the defendant could also have installed a post to secure the gates in the open position, such that it did not swing into the position where, according to the plaintiff, he needed to go to close it; 3. the defendant could have installed lighting in the area; and 4. the defendant could have installed posts or other barriers so as to prevent persons such as the plaintiff entering the area. 1. It does not seem to me that any of those statements of opinion are really based on any specialised knowledge or expertise. As I said to the parties, I would not need an expert to inform me that if one illuminates the area it is likely that the area will be illuminated and hazards might be more easily seen. 2. Importantly, in considering the admissibility of any expert opinion, it is always necessary to understand what facts are in dispute. In Jacobs (a pseudonym) v The Queen, [5] the Court observed: "[47] In any case in which the admissibility of opinion evidence is in issue, the starting point is to identify precisely the fact in issue to which that evidence is claimed to be relevant. That proposition is trite, yet of fundamental importance. Plainly, evidence that is not relevant to the proof of a fact in issue is inadmissible. Further and significantly, the precise identification of the issue, to which the proposed opinion evidence is relevant, is necessary in order to determine whether, in fact, the evidence is probative of that fact in issue, and, if so, whether the witness, who is to give the evidence, is qualified to express that opinion, and whether that opinion is wholly or substantially based on the witness' expert knowledge." 1. Having regard to my exchange with counsel, I do not understand that there is any fact in issue as to whether the defendant could have installed star pickets or could have installed a barrier or even whether there was a drainage ditch in the area, and I use "the area" in a general sense. 2. It is the defendant's case that there was a barrier across the ditch and there were star pickets in the area, such that the plaintiff could not have fallen into the ditch because it had taken steps to eliminate the hazard by securing the area around the hazard. 3. Whilst no doubt I will hear submissions about all this in due course, it might be inferred that the defendant, if it did so, would have only ever placed a barrier and pickets around the ditch because it felt it necessary to do so. In my view, Mr Cockbain's comments in respect of preventability could not be construed as an opinion based on any specialised knowledge or expertise and his opinion as to preventability could not be relevant to any particular fact in issue. 4. In the circumstances, I am not satisfied that the report is admissible and I reject its tender.