Bauer Media Pty Ltd v Khedrlarian (NSWCA 2020)

Key Takeaways

This case demonstrates the need to very carefully consider the assumptions made by an expert in support of his or her opinion to ensure that those assumptions are consistent with and supported by the evidence. Absent such support, the expert’s opinion is of no evidentiary value and probably inadmissible.

Brief Facts 

The plaintiff was employed by a labour hire company, Demand Personnel Pty Ltd (Demand), and performed work at the premises of Bauer Media Pty Ltd (Bauer). She suffered injuries to her neck, shoulders and wrists which she alleged were the result of a failure by Bauer and Demand to provide her with a safe system of work at Bauer’s premises.

Bauer is a magazine publisher and distributer. The magazines would be compiled and bundled before being distributed. The plaintiff’s work involved selecting the number of magazine titles required for each order and placing them on a conveyor belt. There were a number of other tasks that were available such as labelling the bundles.

In the NSWDC, the only material particular of negligence alleged against the defendants was a failure to ensure that a proper system of task rotation took place to reduce or eliminate the risk of injury.

The primary judge found in favour of the plaintiff against Bauer and Demand.

He found that the risk of injury arising out of the work was foreseeable and was actually foreseen. He relied heavily upon an expert report which characterised the hazard to the plaintiff as ’high risk’ and included a recommended precaution of ’job rotation'. The primary judge found that a reasonable employer would not have required the plaintiff to participate in ‘the system of work described in evidence’ and considered that there was no evidence that job rotation would have been an unreasonable burden on the defendant.

Bauer and Demand appealed.

Court of Appeal Judgment

The NSWCA found that the history of injury relied upon by the expert was of a gradual onset of symptoms over many months whilst undertaking a wide range of manual tasks. That was not the evidence given by the plaintiff, nor was it the harm accepted by the trial judge.

The evidence was inconsistent with the proposition that rotation on the conveyor belt would have had any significant ameliorating effect on the risk of harm caused by repetitive actions.

There was no evidence for the view that being rotated occasionally to the manual handling table would have any significant effect. Absent evidence that rotation to different places on the conveyor line did not take place and would have obviated the risk of harm, the claim was bound to fail.

Neither the expert nor the primary Judge explored precisely what rotation was feasible, quite apart from whether the adoption of such ’job rotation‘ would have prevented the injuries claimed to have been suffered by the plaintiff. Therefore, there was no examination of the question of the cost to either Bauer or Demand of such ‘job rotation’. There was no evidence as to the extent of alternative tasks that could have afforded employment for the plaintiff.

The NSWCA allowed the appeal, and held:

1. It was necessary for the plaintiff to identify a particular regime of ‘job rotation’ that, if followed, may have obviated or minimised the risk of injury.
2. The primary judge erred because his conclusion that a breach of duty arose in respect of inadequate job rotation fatally lacked the requisite specificity as to what job rotation entailed.
3. There was no evidence that any reasonable precaution, including a compulsory system of rotation between tasks, would have prevented an injury. The primary judge’s finding that job rotation imposed no burden was not explored in evidence and was not properly available.
4. The expert’s report was, to a significant extent, based upon false assumptions and failed to elaborate upon what precautions should have been taken by Bauer and Demand with respect to job rotation.

Implications

An expert’s opinion is only as good as the assumptions upon which it is based and if the evidence does not support those assumptions, the opinion will carry no weight on an evidentiary basis. In preparing the defence of a claim, it is important to review the facts and determine how the expert’s assumptions may diverge from them in order to identify areas for cross-examination.

It is also not good enough for the expert to make general assertions as to what action could or should have been taken by the employer to avoid injury. The expert must show precisely what would have avoided injury. In this case, it was not enough to simply say ‘job rotation’. It was necessary to identify the jobs to which the worker was to be rotated and the frequency of rotation, as well as, explaining how that would avoid injury.