A failure to remove a cable causing trip or a failure in admission of opinion evidence causing slip?

 

Judgment date: 16 April 2019
Citation: Hawkesbury Sports Council v Martin [2019] NSWCA 76
Jurisdiction: New South Wales Court of Appeal

Principles

• Section 79 of the Evidence Act 1995 (NSW) makes admissible evidence of an opinion which is wholly or substantially based on "specialised knowledge" that, in turn, is based on the witness's training, study or experience.
  
  
• An 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.¹
  
  
• The requirement that expert opinion be based on the witness's specialised knowledge based on training, study or experience is a matter that goes to its admissibility, not its weight.²

Background

On 4 August 2012, the plaintiff tripped and fell on a steel cable strung between low timber posts forming a fence separating a car-park area from playing fields, sustaining injury.

The park was community land vested in the Hawkesbury City Council and maintained and managed by the Hawkesbury Sports Council (the Councils). In November 2011 a row of large light grey concrete blocks, spaced about 1.45 meters apart, had been installed immediately behind and parallel to the existing cable fence, on the playing field side. The spacing of the concrete blocks did not correspond with that of the timber posts.

The Plaintiff claimed that on approaching the field from the car-park she went to walk in-between a gap of the concrete blocks, and tripped on the cable which she did not see. The Plaintiff argued that when the row of concrete blocks was added, they had the likely effect of distracting the attention from the continuing presence of the steel cable. Specifically it was said that the positioning of the concrete blocks created the impression that access could be gained to the playing field through one or more of the spaces between them, and for someone doing so the shading from overhead trees and the similarity between the colour of the cable and the brown earth and gravel in shade made it difficult visually to detect the cable.

The Councils argued that the presence of the cable was obvious, making remote the likelihood that someone taking care for their own safety would fail to observe it.

District Court of New South Wales Decision

The plaintiff successfully claimed damages against the Councils for negligence in the District Court, although there was a reduction of 30% for contributory negligence on the basis that had the plaintiff been keeping a proper lookout she would have seen the cable whether in shade or not.

With respect to competing expert evidence, the trial judge³ preferred the opinions of expert reports served by the plaintiff. A significant aspect of the plaintiff's expert's opinion concerned the visibility of the steel cable. In the expert's opinion, "the cable was a similar colour to the shaded ground and the pedestrian's attention was attracted by the bulk and size of the concrete blocks".⁴ The Councils had taken objection on the basis that the expert lacked "expertise or experience with respect to matters of perception".⁵

The trial judge found that the installation of the blocks, but with the retention of the cables, created a risk of injury by tripping of which the defendants ought to have known and against which they were required to take precautions, such as removal of the cable after the blocks were installed.

New South Wales Court of Appeal Decision

The Councils appealed against the findings of liability and quantum. The plaintiff cross-appealed against the finding of contributory negligence. Councils' issues on appeal can be summarised as:

1. the trial judge erred in admitting opinion evidence not based on specialised knowledge;
   
   
2. the trial judge erred in finding that there was a risk against which the Councils were negligent in failing to take precautions; and
   
   
3. the trial judge erred in awarding of damages for domestic assistance where the provider of that assistance was in receipt of a carer pension which required him to be available to care for the plaintiff full-time; and adequacy of reasons as to the quantification of damages.
   
   

The majority of the Court of Appeal, Meagher JA and Emmett AJA (with Simpson AJA dissenting) allowed the Councils' appeal. The District Court verdict and orders in favour of the plaintiff were set aside and instead a verdict was entered for the Councils together with costs.

The majority held that reports by a qualified civil engineer and building consultant that were served by the Plaintiff do not identify the field of "specialised knowledge" in which the expert has expertise by reason of his "training, study or experience" that is applied and relied on to justify his opinions as to matters of visual perception and vision science. The expert evidence that a pedestrian's view would be attracted by the "bulk and size of the concrete blocks" with the consequence that it was likely that "he/she would not discern the cable" ⁶ was therefore inadmissible⁷.

The majority concluded the evidence established that the risk of someone tripping and falling on the steel cable was "obvious" ⁸ and for that reason that the risk of harm was not established to be "not insignificant". Further, the risk was not such that a reasonable person in the Councils' position would have taken the precaution of removing the cable notwithstanding that the burden of doing so may not have been onerous and that the social utility of retaining the cable was questionable.⁹ The fact there had been no prior similar accidents was also a factor to take into consideration, although not the primary factor, when determining whether there had been a breach of duty.

In dissent, Simpson AJA considered the expert's qualifications provided a sufficient basis for inferring his expertise to express an opinion as to risks that pedestrians, entrants or users of a structure might fail to observe.¹⁰ Her Honour concluded the expert evidence established that the juxtaposition of the original cable fence and the concrete blocks constituted a risk of harm that was foreseeable and not insignificant, and further that the Councils' failure to take precautions was negligent.¹¹

Because the appeal against Councils' liability was upheld, the appeal as it related to quantum and the plaintiff's cross appeal against the finding of contributory negligence did not arise. However, Meagher JA and Emmett AJA agreed with Simpson AJA's resolution of the damages issues and noted they would have rejected Councils' appeal against the award for past and future gratuitous domestic assistance.

Why this case is important

This case demonstrates the importance of ensuring the correct match is made between an issue of contention and qualifying an expert with the specialisation required to give expert opinion on that issue.

Where the Court was considering whether to admit expert evidence from a civil engineer, structural designer and building consultant as to whether a pedestrian’s view of a cable would be hampered by a large concrete block in the vicinity, it was concluded that the specialisation required in this instance concerned visual perception and vision science and the expert evidence was therefore inadmissible.

Further, it is crucial that experts identify the field of "specialised knowledge" in which they have experience by reason of their training, study or experience that is applied and relied on to justify their opinions.

In addition, the case serves as a reminder that in circumstances where the provider of gratuitous domestic assistance was already in receipt of a carer pension (even when required to care for the plaintiff full-time), this will not prevent the plaintiff being awarded damages for domestic assistance where there has been an escalation of the plaintiff's care needs as a result of injuries sustained in an accident.

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¹ per Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705; [2001] NSWCA 305 at [85]
² see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (at 42]
³ Delaney ADCJ
⁴ Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [25]
⁵ Ibid [95]
⁶ Ibid [31]
⁷ Pursuant to section 79 of the Evidence Act 1995 (NSW)
⁸ Within the meaning of s5F of Civil Liability Act 2002 (NSW)
⁹ Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [37-41]
¹⁰ Ibid [118]
¹¹ Ibid [140-142]