McKenzie v Day (No 1) [2016] NSWDC 235

District Court New South Wales

Medium Neutral Citation: McKenzie v Day (No 1) [2016] NSWDC 235 Hearing dates: 16 August 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Application to adduce expert evidence allowed in part Catchwords: CIVIL – Application by plaintiff to adduce expert report – Expert a safety and risk management advisor – Opinion that steps of a staircase "Camouflaged" – "Camouflage" inapt description - Whether it would be within the expert's expertise to comment on the need for contrasting colours to draw attention to different surfaces Category: Procedural and other rulings Parties: Lesley McKenzie (Plaintiff) Lucy Day (Defendant) Representation: Counsel: Mr F Curran (Plaintiff) Mr J Guihot (Defendant)

Solicitors: Carrol & O'Dea (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2015/103378 Publication restriction: No

Judgment 1. HIS HONOUR: I have been called upon to consider the report of Mr David Cockbain of 2 October 2015, which has been marked exhibit K, subject to any proper objection. The defendant objects to [63] of the report, which says this: "The writer is of the opinion that the brown tiles used on the subject stairs created a camouflage and were insufficient, in the absence of nosings, to provide the plaintiff with adequate visual cues of the edge of the step (Figure 5)." Figure 5 is a copy of part of the photograph which is numbered 1 in exhibit L, a series of 11 photographs taken between 2.30pm and 3pm on Tuesday, 16 April 2013, the day after the plaintiff's fall. 1. Mr Cockbain has a Master's degree in Applied Science in Safety Management. He also has a Graduate Diploma in Applied Science specialising in Occupational Health and Safety and a Diploma in Occupational Health and Safety. The tertiary institution which provided Mr Cockbain with his Master's degree and perhaps his diplomas has not been identified. Additional qualifications stated by Mr Cockbain in his report are that he is a Justice of the Peace, which is completely irrelevant, a fellow of the Safety Institute of Australia, a companion member of Engineers Australia and "CPRM", the exact significance of which is not explained. He also states that he is a principal Safety Auditor from an Institution in London and that he is a chartered generalist occupational health and safety professional with the Safety Institute of Australia. Paragraph [3] of his report says this: "The writer practices as a safety and risk management advisor, specialising in the identification of hazards, assessment of risks and the development and implementation of risk control measures and prevention of injuries to people in workplaces, public places and private homes." In the following paragraph he tells me that he has over 20 years' experience in occupational health and safety and risk management. 1. Paragraph [6] of the report provides a chapeau and then 13 areas of work in which he has practised or does practise. The chapeau and the first two areas of work are these: "In particular, the writer wishes to highlight his special professional expertise with respect to this matter based on more than 20 years of experience as a safety engineer, consulting occupational health and safety specialist, auditor, trainer and risk manager. The various nature of this work includes: • Research into the mechanism of slips, trips, missteps and falls as part of an ongoing study and research program. • The testing of pedestrian walk and working surfaces and development of risk management control strategies for various organisations." 1. Before the paragraph to which objection is taken by the defendant, Mr Cockbain sets out a number of matters, commencing [58]. The first of these paragraphs commences with an observation about the visual field of a walking person, being a moving and dynamically changing field and comments on the visual field of a pedestrian. He points out that objects or targets falling within the effective field are easily detected and identified, whereas those outside the field boundaries are not perceived unless they draw attention by moving, flickering or changing contrast, such as colour changing. 2. Paragraph [59] contains a quotation from a medical text book, Bennett and Rabbett's Clinical Visual Optics 3rd ed (1998) Ch 3, together with certain comments made on what is quoted, the comments clearly being matters raised by Mr Cockbain which he believes affect the current case. Paragraphs [60] and [61] are these: "[60] The ability of the eye to perceive that an object is separate from its background depends partly upon the relative luminance of the object distinct from the ground. A person will find it difficult to identify a difference in height between two differing ground levels, or the presence of steps if there are no distinguishing features between the two levels. [61] This difficulty is significantly enhanced at night, or in areas of darkness or shadows, where illumination of the steps/walking path is minimal. The provision of adequate lighting is important to enable hazards in a walking path to be visibly detected and prevent the risk of falls." 1. Paragraph [62] of the report refers to inappropriate coverings for steps and provides a black and white illustration of part "camouflaging" the steps in a staircase. The caption on the illustration refers to the carpet depicted giving a "visual distraction" without the provision of visual cues to the stairs on the staircase. 2. Figure 5 which Mr Cockbain provides to illustrate what he describes as the camouflage of the staircase of the steps in question is not a good reproduction of the photograph which is before me as exhibit L1. Furthermore, it is truncated and omits visual cues contained in exhibit L1, being a rubbish bin sitting on the tread of the first step on the right hand side and a potted plant on the left hand side of the first tread and then on the left hand side another potted plant on the second tread but the garbage bin on the first tread obscures another object which appears to be a metal bucket on the right hand side of the second tread. Mr Cockbain did not conduct any inspection. He merely based his opinion on the photographs. Figure 5 in his report is, in my view, not a good reproduction of exhibit L1. I have read, for the purpose of making the current ruling, up to [70] of Mr Cockbain's report. I apprehend completely that which the expert is trying to draw to my attention is the fact that, in the absence of any nosing on each of the treads, there was not a visual prompt to a person using the set of two stairs in question. However, it is the use of the word, "camouflage" which appears to have led to the objection that has been made. The word "camouflage" is apt to describe a deliberate attempt to disguise what is beneath the camouflage itself or to distract a person's vision, such that the observer misperceives what is behind the camouflage. There is no suggestion in the current matter that there has been any deliberate camouflage. 3. Another part of the objection made by the defendant is that this is really a matter for common sense, a matter for the tribunal of fact to take into account as to whether the steps can be adequately perceived by a person using steps. Mr Guihot has pointed out much of what is quoted by Mr Cockbain is, in fact, a matter of common sense and that, for example, the expert quoting from a medical text book would have the same or give to the expert the same expertise as it would to a barrister who quoted a medical textbook to seek to explain what had occurred in a particular case in which he or she was briefed. 4. On the question of expertise, however, I bear in mind that this expert has been, for more than 20 years, involved in testing pedestrian walking surfaces and the working surfaces for employees in order to develop risk management control strategies. I would accept that it is within his expertise to consider contrasting colours as a method of drawing attention to persons of there being some irregularity or, for example, to draw to the attention of a pedestrian a change in the level of the walking surface. In other words, I accept that it would be within the expert's expertise and in his background to comment on the need for contrasting colours to draw attention to different surfaces. 5. It appears to me that the vice in [63] is the use of the word "camouflage". I therefore take the view that [63] of the report should be redacted by deleting the words "created a camouflage and" so that the sentence reads, "The writer is of the opinion that the brown tiles used on the subject stairs were insufficient, in the absence of nosings, to provide the plaintiff with adequate visual cues for the edge of the step..." 6. CURRAN: Your Honour, I think that the same correction would be made to the following page where Figure 5 is referenced as, "An extract from photograph provided by the instructing solicitor depicting the camouflage created". 7. HIS HONOUR: How about I strike out the words after "depicting"? 8. GUIHOT: Or Just "after solicitor". 9. HIS HONOUR: That's right. All words from "depicting onwards."