Industrial Relations Commission of New South Wales in Court Session CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2003] NSWIRComm 470 PROSECUTOR: Stephen Finlay McMartin PARTIES : DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady. FILE NUMBER: 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - admissibility of expert evidence in relation to risk assessment and risk management - admissibility and the evidentiary use that may be made of information in authoritative scientific publications - Australian Standards articles and other articles admitted to the extent that they are relied upon in expressing opinion as to risk management and risk assessment by way of general principles - rulings as to admissibility or otherwise of disputed passages in expert witness statement. LEGISLATION CITED : Occupational Health and Safety Act 1983 Coal Mines Regulation Act 1982 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Sydneywide Distributors v Red Bull Australia Pty Limited (2002) FCAFC Wright v Edgell Birdseye No 53/1992: Judgment No B65/1995 CASES CITED : WorkCover Authority of NSW (Inspector Mulder) v Arbour Products International (Australia) Pty Limited (2000) NSWIR Comm 12: 14 February 2000 PQ v Australian Red Cross Society and ors (1992) 1 VR 19 John Fazio v The Crown: SCCRM-97-29 Judgment No 6196 (1997) 69 SASR 54 R v Lam (2002) NSWCCA 377: 7 November 2002 HEARING DATES: 12/09/2003; 12/11/2003 DATE OF JUDGMENT: 12/16/2003 PROSECUTOR: Mr S Crawshaw SC Mr B Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke Mr S Rothman SC LEGAL REPRESENTATIVES: Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady Mr B Hodgkinson SC Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 16/12/2003 Matter No's IRC 3198/00 - 3249/00 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 470 1 I have before me a statement made by Inspector Neil Buggy dated 20 October 2003. Inspector Buggy has been called by the prosecution as an expert in risk management and risk assessment. 2 A number of objections have been pressed by the defendants in relation to certain passages in Inspector Buggy's statement. Inspector Buggy has given his evidence and I now rule on those disputed passages in his statement. 3 In addition to his statement, there are two appendices attached: (i) Appendix A is the letter of instructions to Inspector Buggy from the prosecutor's solicitor. (ii) Appendix B sets out the assumptions that Inspector Buggy is asked to make for the purposes of the expert opinion he expresses in Parts C and D of his report. 4 As well as the above appendices, there are two volumes of documents that formed the documentary material provided to Inspector Buggy for the purposes of the opinions he expresses. 5 No issue was taken by the defendants to Inspector Buggy as an expert in the field of risk assessment generally. The major basis for the defendant's objections to Inspector Buggy's statement in part is, as I would express it, firstly that Inspector Buggy's knowledge of risk assessment is of such a general nature that he is not able to express an opinion as to specific matters going to the implementation of risk management and risk assessment in the mining industry as he purports to do. Second, objection is taken to Inspector Buggy's reliance on a number of authoritative articles about risk assessment and risk management in expressing the opinions that he does. Reliance on such articles in part, it was contended, makes it impossible for the Court to be sure that the opinion is based wholly or substantially on Inspector Buggy's own specialised knowledge. 6 Further, specific objection was taken to Inspector Buggy's use of material subpoenaed from the defendants that went to the issue of risk management safety audits and other matters and his interpretation of those documents for the purposes of expressing some of the opinions that he does. 7 In the first instance, I restate the principles that are acknowledged as representing the basis on which expert evidence is to be considered generally admissible. I refer to the well known passage in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at para [85] as follows: 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 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. 8 In emphasising that passage, I note also the Full Court of the Federal Court in Sydneywide Distributors v Red Bull Australia Pty Limited (2002) FCAFC at [16] and [17] has held that many of the matters referred to by Hayden JA (as he then was) in Makita: '... involved questions of degree requiring the exercise of judgment ... and that, in trials by a judge alone, they should commonly be regarded as going to weight rather than admissibility.' 9 At the outset, Inspector Buggy was quite clear as to the basis and extent of his expertise in the area of risk management and risk assessment. As he said on page 17 of his statement: The knowledge I possess in the area of risk management, including the use of risk assessment, is based on the application of training and experience over time, within the various roles I have held in the substantive or relief capacity with my current employer . This knowledge is based upon generic aspects of risk management and risk assessment. The writer does not profess to be experienced with any particular risk identification system or study, nor any particular risk analysis approach, which may be adopted for particular application in specialised areas. (emphasis added) 10 As well, on page 32 of his statement, Inspector Buggy confirms that he has 'no experience in the underground mining industry.' Accordingly, he says, he is 'unable to provide any direct comparison of relative performance in 1996 between the underground mining industry and industry in general within New South Wales.' He confirmed his lack of knowledge about the mining industry in evidence before me. 11 Further, Inspector Buggy's knowledge of the relevant provisions of the Coal Mines Regulation Act and Regulations was and is limited to an extract of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 that was provided to him by the prosecutor's solicitors as part of material for him to peruse prior to preparing the statement before me. 12 Having regard to those clear limitations that Inspector Buggy himself acknowledges, I would consider the major import of Inspector Buggy's opinion evidence to be that of expressing general principles of risk management and risk assessment that, in his opinion, would have, indeed should have, been incorporated into workplace safety considerations in 1996. In his opinion, the legislative obligations imposed on employers by the Occupational Health and Safety Act 1983, would have embraced risk management and risk assessment policies and procedures, admittedly with flexibility as to the form of such policies and procedures. Given that the Occupational Health and Safety Act 1983 applied to the mining industry as much as any other in 1996, in Inspector Buggy's opinion, the general principles of risk management and risk assessment would have applied equally to that industry, as any other. As a general proposition, that would be difficult to argue against I would have thought. What might be arguable is how those general principles were applied in practice in particular industries in 1996 specifically, in relation to the matters before me, the coal mining industry. That is the point, I believe, where the defendants take issue with Inspector Buggy as to the opinions he expresses beyond the general principles he has identified. 13 In Part B of the letter of instructions from the prosecutor's solicitors, Inspector Buggy was asked to answer questions and express his opinion about, for example, what was involved in risk management in 1996 and what were the minimum requirements for a risk management system in 1996? 14 There were other questions in similar vein, all predicated on asking Inspector Buggy about relevant circumstances and approaches involved in relation to risk assessment and risk management as they existed in 1996 - some seven years ago. 15 By November 1996, Inspector Buggy had been with the WorkCover Authority for just on two years. During that time he had completed a Diploma of Injury and Illness Management and Prevention with the WorkCover Authority in 1995. That, it seems, was a prerequisite for all inspectors employed by WorkCover. In short, it would be fair to say, the bulk of Inspector Buggy's knowledge and expertise in the area of risk assessment and risk management has been obtained from 1996 onwards. That he is now being asked to project his current accumulated knowledge and expertise back to 1996 and, in doing so, somehow discounting or ignoring the past seven years to a precise point in his overall memory as to expertise and knowledge at that time is, on any view, fraught with great difficulty. I accept that Inspector Buggy has generally sought to do so but that does not discount the caution that I believe should accompany the receipt of his opinions expressed in 2003 as to what were the standards applying in risk management and risk assessment in 1996 except in the most general of terms. 16 In Part B of his report, Inspector Buggy was asked and answered the following question: Q8. In 1996, based upon your training, study and experience you are asked to express an opinion, in the context of the minimum standard for risk management including risk assessment required in industries in general in NSW, as to whether you adopt, acknowledge, reject or place any qualification on all or part of each of the following publications: [a] Australian Standard AS 1470 - 1986 " Health and Safety at Work - Principles and Practices ." [b] " Health and Safety Notes - Hierarchy of Hazard Controls " published in July 1992. [c] " Hazpak - Making your Workplace Safer, A Practical Guide to Basic Risk Assessment " published by WorkCover in about 1992. [d] In 1993 the CCH Australian " Journal of Occupational Health and Safety - Australia and New Zealand " in volume 9 Number 6 December 1993, reproduced various papers from a mining safety conference called " Mine Safety International 1993 ." The paper by E Davies titled Safe Production performance principles and practice. [e] The WorkCover publication titled "Six steps to occupational health and safety, Duty of Care in OHS" published in February 1994. [f] The " Australia/New Zealand Standard - Risk Management " or ("AS/NZS 4360:1995"). [g] "Due Diligence at Work," the 1996 publication of the Industrial Accident Prevention Association (IAPA) of Canada. In particular, would this publication have helped employers, managers and supervisors implement a health and safety system or program in the workplace to protect their employees? 17 In expressing his opinions in relation to the above articles, Inspector Buggy stated: My opinions are provided only in terms of risk management and risk assessment, and not on the entire body of any one publication unless otherwise identified. 18 At the outset, objection was taken by counsel for the defendants to the admissibility of the Standards documents identified as [a] and [f] above. That objection is based primarily, it was contended, on the fact that the Australian Standards documents are guidance documents only and do not have any force of law unless they are called up into a regulation or Code of Practice. The second major objection is based on Inspector Buggy's lack of direct knowledge or experience in the mining industry or underground coal mining. 19 In support of its objections on this issue, counsel for the defendants relied on the decision of Wright J of the Supreme Court of Tasmania in Wright v Edgell Birdseye No 53/1992: Judgment No B65/1995, where, in relation to reliance placed by counsel on Standards Association publications, his Honour said at para [38]: It has been my experience in the past that from time to time, counsel for an injured plaintiff has sought to rely upon Standards Association publications as constituting some kind of standard, design or operational criteria, non-compliance with which constitutes prima facie evidence of negligence. This is not necessarily so. Frequently such publications provide valuable guidance within an industry and, on many occasions, engineering or other experts will acknowledge the publication as being an appropriate and recognised authority within a particular field. Such is not always the case however and disputes between experts as to the status and acceptability of published standards is by no means unknown. Without expert endorsement or agreement between counsel an SAA Australian Standards Publication will not normally be admissible in evidence and will certainly not constitute an unassailable basis for a finding of negligence. (emphasis added) 20 The above passage was referred to by Marks J in WorkCover Authority of NSW (Inspector Mulder) v Arbour Products International (Australia) Pty Limited (2000) NSWIR Comm 12: 14 February 2000 where, in relation to a relevant Australian Standard before him, his Honour stated: However, the standard having being admitted into evidence without objection, I am prepared to accept it was constituting an expert opinion concerning the specific and general matters to which it refers. Accordingly, I propose to approach the contents of the Standard as representing an expert expression of opinion, albeit one which is accepted having regard to the qualifications contained within the document itself (some of which I have referred to), and subject of course to the acceptance of any contrary expert evidence. 21 Counsel for the prosecution, in responding, indicated that the decision of Wright J in Wright v Edgell Birdseye was, if anything, authority for the proper admission of the Australian Standards documents before me as part of Inspector Buggy's statement. He makes that submission relying on the very words of Wright J in the penultimate paragraph of the passage quoted in para [38] above and particularly the words 'without expert endorsement.' In other words, counsel for the prosecution contends, Inspector Buggy as an expert has endorsed the Standards documents and as such, they are admissible in evidence as part of the authoritative material upon which he relies to express the opinions that he does. Further, counsel for the prosecution also relied on the decision of McGarvie J in PQ v Australian Red Cross Society and ors (1992) 1 VR 19 where his Honour considered the admissibility and the evidentiary use that may be made of information in authoritative scientific publications. As he said at page 34: It is made clear in Borowski v Quayle (1966) VR 382 that expert witnesses may not only base opinions they give in evidence on such data, but may give evidence of fact which is based on such data. Expert witnesses may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information in the sense that they rely for such data not on their own knowledge but on their knowledge of someone else. further: ... an expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it .... the data relied on may be a statement of fact or opinion. and: When an expert witness bases evidence on data in an authoritative scientific publication, it is the evidence of the witness which is thus put before the Court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness (authorities excluded). 22 The above passage was relied upon with approval by the Court of Criminal Appeal of South Australia in John Fazio v The Crown: SCCRM-97-29 Judgment No 6196 (1997) 69 SASR 54: paras [41] to [43]. See also R v Lam (2002) NSWCCA 377: 7 November 2002. 23 The principles enunciated by McGarvie J in PQ V Australian Red Cross have been consistently adopted and applied at first instance and appellate level. 24 It is apparent that, to the extent that he adopts the articles referred to in whole or in part, Inspector Buggy does so within the ambit of his area of expertise. That is, the general principles of risk management and risk assessment. Further, he states that in considering the scientific publications that he has, that the opinions he expresses are 'provided only in terms of risk management and risk assessment.' Accordingly, I am satisfied that the Australian Standards articles that are the subject of objection by the defendants as well as the other five articles identified above, may be admitted to the extent that Inspector Buggy relies upon them in expressing his opinion as to risk management and risk assessment by way of general principles. I do not admit these publications as authority in support of any opinions expressed by Inspector Buggy in relation to risk management and risk assessment specific to the coal mining industry or to the mining industry other than as matters going to general principles. 25 As the decision in Makita makes abundantly clear, the ultimate admissibility or otherwise of Inspector Buggy's opinions as expressed must be that those opinions are based wholly or substantially on Inspector Buggy's field of specialised knowledge. 26 Inspector Buggy's field of specialised knowledge is the general principles of risk management and risk assessment. He has no specialised knowledge or practical experience as to the proper application of the general principles of risk management and risk assessment in the mining industry either as applicable in 2003 or, I would conclude, in 1996. It is against that background and having regard to my earlier comments and conclusions that I deal with the admissibility or otherwise of those passages in Inspector Buggy's statement that are the subject of objection by the defendants as follows: (i) Page 31: The paragraph commencing with the words ' In consideration of ' to the end of that paragraph concluding with the words 'and the risk assessment process.' That paragraph is deleted. Absent any expertise or knowledge by Inspector Buggy about the underground mining industry, he cannot make any conclusive statement as to comparisons or differences as between the coal mining industry and other industries in New South Wales in 1996. (ii) Page 34: The paragraph commencing with the words 'Given that it was known ' down to and including the words to the end of that paragraph concluding with the words 'was known (Assumption R 3 ) . ' That paragraph is admitted having regard to the opinions expressed as to risk assessment based on the assumptions relied upon as identified in that paragraph. (iii) Page 34: The paragraph commencing with the words 'I am of the further opinion' to the conclusion of that paragraph ending with the words 'is unable to determine if this occurred. ' That paragraph is deleted. It is an opinion predominantly based on speculation as to a factual situation that Inspector Buggy has no specialised knowledge of on which to base the opinion expressed. (iv) Page 37: The last sentence of the first paragraph on that page commencing with the word ' However ' and concluding with the word ' undertaken.' That sentence is deleted. The unequivocal assertion of fact made by Inspector Buggy as part of his opinion is based primarily on one page of a 49 page document which has no accompanying explanation that would enable Inspector Buggy to make such an unequivocal assertion of fact in relation to a matter that he has no factual knowledge of and in an industry with which he is unfamiliar. (v) Page 37: The last sentence of the third paragraph on that page commencing with the words 'The compulsion ' and ending with the words 'meaningful risk evaluation. ' That sentence is deleted. It is an assumption made by Inspector Buggy excluding any other considerations as to the context in which that document was produced and its application in the area of safety audits being undertaken by the corporate defendant Oakbridge Pty Ltd. (vi) Page 38: The second sentence of paragraph 4 commencing with the words 'This exhibit does ' and ending with the words 'time of the audit.' That sentence is deleted. It is based on speculation on the basis of the appearance of a comment on one page of a 53 page document dealing with occupational health and safety bench audits conducted in 1995 in relation to a factual background that Inspector Buggy has no knowledge and no specialised knowledge of. (vii) Page 41: The third paragraph, second sentence commencing with the words 'From the information' to the end of that paragraph ending with the words 'in relation to this consideration .' Those sentences are deleted. It is opinion expressed on the basis of dot point information and any conclusions drawn from that can only be speculative and of negligible weight. (viii) Pages 44 and 45: Commencing with the first paragraph on page 44 with the sentence commencing with the words 'After perusing this document ' down to and including all paragraphs over to page 45 ending with the words 'the old working of Y WC.' Those paragraphs are deleted. The opinions expressed are based on a document identified as a draft report of the Department of Mineral Resources included in the minutes of a meeting of mine management of the corporate defendants. There is nothing to indicate the basis upon which such a draft document was included in the minutes of the mine managers meeting. There is nothing to indicate what reliance, if any, the defendants were required to place upon that document and there was no evidence elicited by the prosecution from the very person whose name appears on the document, that is, Mr B R McKensey, Chief Inspector of Coal Mines, to attest as to what, if any, was the status of that document. On that basis, no reliance could be placed on any assumptions or opinions expressed on that document, and accordingly those paragraphs that do seek to do so are deleted. (ix) Page 46: The third paragraph commencing with the words 'Given the assumptions' to the end of that paragraph ending with the words 'the old workings of Young Wallsend Colliery .' That paragraph is deleted. It is an opinion expressed based on assumptions given to Inspector Buggy. In relying on those assumptions Inspector Buggy expresses opinions as to factual matters in relation to the presence of water in circumstances that he has no specialised knowledge of relevant to an industry that he has knowledge or experience of. (x) Page 46: The third paragraph commencing with the words 'The assumptions provided ' to the end of the paragraph including the words ( 'Assumption R3 :') That paragraph is admitted relying on the assumption indicated by Inspector Buggy. (xi) Page 46: The fourth and final paragraph on that page commencing with the words 'Given that risk control ' down to and including the words ( evacuate in a direction away from point of inrush ). That paragraph is deleted. It is speculative and based on factual matters in the underground mining industry as to the presence of water about which Inspector Buggy does not purport to have any expertise. (xii) Page 47: The fourth paragraph commencing with the words 'This is supported by exhibit P86 ' to the end of that paragraph ending with the words 'the old workings of YWC .' This paragraph is admitted except for the words 'from the old workings of YWC .' (xiii) Final paragraph on Page 47 commencing with the words 'It is observed ' to the end of that paragraph ending with the words 'prior to this audit .' That paragraph is deleted. It is an opinion based on one page of a document and without any other information, is speculative at best. Further, it speculates as to a factual situation that Inspector Buggy has no knowledge of. (xiv) Page 48: The first two full paragraphs commencing 'With the qualification that it is unclear' down to the end of the second paragraph on that page ending with the words 'the old workings of YWC .' Those paragraphs are deleted. They are qualified, speculative and express an opinion about underground mining work which Inspector Buggy does not purport to have any specialised knowledge of. No reliance can be placed on the opinions expressed in relation to those matters upon which he expresses an opinion relevant to underground mining work and his belief as to the reaction and actions of individuals in factual circumstances he has no knowledge of. (xv) Page 49: The second last paragraph commencing with the words ' In consideration of' down to and including the words ' and mock emergency drill .' That paragraph is deleted for the reasons as detailed in relation to (xiv) above. (xvi) The last paragraph on page 49: The first full sentence is deleted such that that paragraph now commences with the words 'Likely controls' down to and including the words 'mock emergency drill .' The first sentence is deleted because it is an opinion based on speculative conclusions that Inspector Buggy makes as to the likely source of water at C heading on facts about which he has no specialised knowledge. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.