Workplace health and safety matters occasionally, and unfortunately, involve a fatality, and a coronial inquest may be held to determine the cause of death, which could involve damaging adverse findings against an employer or an employee. Whether the workplace was safe is often a contested issue at the inquest, and interested parties, including the employer, may wish to present evidence from witnesses and experts. Whilst the rules of evidence strictly speaking do not typically apply in such proceedings, which are inquisitorial in nature, a coroner is still bound to act in a procedurally fair manner. Often, however, what is procedural fairness in a particular case can be elusive.
The recent Tasmanian Supreme Court decision in Copper Mines of Tasmania Pty Ltd v Cooper (Cooper) examined the application of principles of natural justice and procedural fairness to a coronial inquest which was investigating three work-related deaths (the Inquest).
Background to the Inquest and Cooper
Cooper involved the return of a general order before the Tasmanian Supreme Court to show cause why an order for relief should not be granted to prohibit the coroner from calling a particular “expert” witness, Mr Webber, at the Inquest.
The Inquest was investigating a temporary platform collapse at Mount Lyell Mine (Mine) in 2013 which fatally injured two employees of Copper Mines of Tasmania Pty Ltd (CMT), and a mud rush in 2014 which fatally injured another employee of CMT (mud rush incident).
In 2014, WorkSafe Tasmania commissioned Mr Webber to prepare a report into safety at the Mine in relation to the mud rush incident. Mr Webber’s report referred to several technical and consultants’ reports (Source Reports). The mud rush incident involved very technical matters covering the appropriate means of mitigating the risk of a mud rush in a mine.
Mr Webber’s evidence had been objected to in an earlier WorkSafe prosecution against CMT in relation to the mud rush incident (Sears v Copper Mines of Tasmania Pty Ltd) and that objection had been upheld, with the effect that the prosecutor did not proceed against CMT and the charges were dismissed. The site manager of CMT was also prosecuted in relation to the mud rush incident. However, this charge was dismissed for similar reasons. As such, there were three interested parties at the Inquest: CMT; a contractor of CMT, Barminco Ltd (Barminco); and the site manager.
CMT was the applicant in Cooper, seeking to prevent the coroner conducting the Inquest from receiving Mr Webber’s evidence. In particular, the coroner proposed to admit the Source Reports without the authors of those reports being required to give evidence.
Barminco and the site manager were respondents, as interested parties, in Cooper.
Arguments of CMT in Cooper
CMT argued in Cooper that Mr Webber’s report did not comply with the principles applicable to the admissibility of expert evidence and that CMT would be denied procedural fairness if Mr Webber gave evidence at the Inquest. Additionally, to tender Mr Webber’s report without calling the authors of the Source Reports would be a denial of procedural fairness.
Section 51 of the Coroners Act 1995 (Tas) (the Act), as is common with legislation applying to inquests, provides that a coroner holding an inquest is not bound by the rules of evidence. While a coroner is not bound by the rules of evidence, it is trite law that a coroner should nonetheless have due regard to them and where the coroner does not strictly apply them, ensure that by not doing so, no real injustice will result. In this way, the source of the application of the rules of evidence at an inquest, limited as they are, is not derived from statute law, but under the common law based on a coroner affording procedural fairness to potentially affected persons.
Considerations of procedural fairness can also be covered under a statute: for example, under s 52(4) of the Act, a person who the coroner considers has a significant interest may appear or be represented at an inquest to call and examine or cross-examine witnesses, and make submissions.
Senior Counsel for CMT submitted that:
... the rules as to the requirements of expert witnesses, but particularly in relation to the identification of expertise, the identification of assumed facts, and subsequent proof of those underlying facts are not mere technical rules of evidence, but are principles founded on fairness and good sense. It submits that in coronial proceedings the reports and evidence of expert witnesses must comply with those rules, at the very least to a substantial degree, to ensure fairness to interested parties appearing before the inquest. It is asserted that to permit expert evidence to be admitted in coronial proceedings that does not comply with those common law rules is to deny procedural fairness to interested parties and to render [trivial] the right to cross-examine the witness as permitted by s 54 of [the Act].
In short, if procedural fairness is not afforded to interested parties, the ability of those parties to engage in a forensic process at an inquest, and advance a position or examine witnesses, if they choose, is compromised. Compliance with the ordinary rules of evidence as they apply to experts means that at least a “gold-standard” level of procedural fairness would at the same time be afforded to the parties in an inquest. However, a tension arises as to whether particular circumstances warrant a gold standard applying, particularly where both fairness and efficiency are legislative requirements; for example, s 9 of the Coroners Act 2008 (Vic).
Barminco and the site manager supported the arguments of CMT and sought exclusion of Mr Webber’s report.
Arguments of the Attorney-General in Cooper
The Tasmanian Attorney-General opposed the orders sought by CMT.
The core arguments of the Attorney-General were:
• the Act confirms that the rules of evidence do not apply to coronial inquests
• the coroner is entitled under the Act to receive the report and give it such weight as he sees fit
• fair hearings (at an inquest) do not equate to adherence to the rules of evidence
The ruling in Cooper
Estcourt J held that even if parts of Mr Webber’s report were not admissible, other parts were admissible and, in respect of those inadmissible parts, CMT would have the opportunity, however difficult, to object to those parts during cross-examination at the Inquest.
Estcourt J held in relation to CMT’s bid to stop Mr Webber’s report being admitted that:
Although the content of natural justice varies from case to case ... there is no doubt that the principles of natural justice apply to coronial proceedings, and that relief in the nature of prohibition is available to prevent their breach ... however, [in the application before the court,] the applicant's principal contention fails … to establish the fact or likelihood of such a breach.
As such, Mr Webber’s report was permitted to be admitted at the Inquest, but the court took a different position on the Source Reports. The authors of these reports were needed to be called as witnesses at the Inquest, particularly on the underlying facts claimed in the reports, as a matter of procedural fairness. This was particularly so where:
... the reports are not scientific data of general application, which may be derived from sources usually relied on by experts, and that Mr Webber cannot himself speak with the relevant specialised knowledge to the particular matters within those reports that are peculiar to the case.
At the time of writing, the Inquest is yet to resume. It is unknown whether, or how, the coroner will use Mr Webber’s report.
Implications
If a party to a proceeding is considering using expert evidence where the rules of evidence do not apply by operation of statute (for example, coronial inquests, various state and federal tribunals, and the Fair Work Commission), there are strong reasons for that evidence to comply nevertheless with the rules of evidence, as they apply to experts, to improve the chances of the expert evidence being admitted and avoid arguments that the:
• facts, assumptions and qualifications on which the report is based cannot be identified
• factual evidence cannot be distinguished from opinion evidence
• the opinion evidence is not from an expert on the area on which the opinion is given
• the reasoning process of the expert is not transparent
• more generally, the evidence to be given does not afford procedural fairness to the other parties
Moreover, with source reports referred to in an expert report, it may be necessary, for procedural fairness reasons, to call the authors of the source reports if there are contentious facts, assumptions or opinions in those source reports, or the source reports contain knowledge not within the expertise of the expert.
Concluding remarks
It is clear that whilst a coronial inquest is typically not bound by the rules of evidence, a coroner should generally adhere to rules of evidence in investigating deaths in order to ensure natural justice or procedural fairness is given. The exact boundaries of natural justice are dependent on context. To the extent that such boundaries are difficult to identify in advance, there are strong reasons for a party to obtain and use expert evidence on the basis that the rules of evidence do apply to avoid the expert evidence not being admitted.
This article was co-authored by Phoebe Blank and was originally published in LexisNexis Employment Law Journal 2018 Vol 24 No 5.
