Australia: Exercise Care When Electing Not To Lead Expert Evidence

Last Updated: 19 November 2008
Article by Vijay Edwards

Wilkinson v BP Australia Pty Limited [2008] QSC 171


Defendants are often called upon to consider whether expert evidence is required to defend a claim. When a plaintiff does not serve expert evidence, there is a temptation for a defendant to decline to serve expert evidence. Why take the risk that your report will prove the plaintiff's case?

In this case, the Queensland Supreme Court held that, despite the plaintiff not disclosing any expert evidence as to the failure of a metal strip to meet the required level of slip resistance, the plaintiff had nonetheless satisfied the evidentiary burden in proving that the metal strip posed a significant slipping hazard. The plaintiff was successful in his claim for damages in absence of any expert evidence.


The plaintiff, Mr Wilkinson was employed as a fuel tanker driver. In the course of his employment he was required to attend BP Australia Pty Limited's fuel terminal to fill trailers with distillate fuel.

It was necessary for Wilkinson to enter a part of the fuel terminal called the bay loader. That required him to step up from a concrete apron onto the entry to the bay loader. The step was estimated to be about 75 centimetres. On the edge of the step was a metal strip of some 75 millimetres in width. The strip was described by Wilkson as 'glassy, smooth steel'. It was located in the natural place to put a foot on mounting the step.

Wilkinson gave evidence that he entered the bay loader and then stepped up on to the step with his right foot. As he did so, he placed his foot on the metal strip. His foot then slipped out from under him going backwards causing him to fall forward and injure his right knee.


The principal issue was whether the metal strip on the edge of the step into the bay loader of the fuel depot presented a risk of injury against which BP should have guarded.

In its defence, BP submitted that that there was no evidence to support the plaintiff's contention that the step constituted a slipping hazard. The only relevant evidence led was from Wilkinson himself. His account was:

'On numerous occasions I have walked back in there and slipped but I've never injured myself, and probably to the point where it was pretty much a conscious act to make sure I wasn't stepping on it, I'd step clearly over it onto the actual concrete area instead of the steel itself. On that particular day and that hour of the day, it slipped my mind and I got on it and that's when the incident occurred.'

Wilkinson agreed that he had attended at the fuel terminal on every working day for approximately 10 years prior to the incident. He had ascended the step from the apron on probably thousands of occasions and was intimately familiar with the whole area.

Wilkinson also conceded he had gone through an induction procedure on many occasions. Part of that procedure dealt with hazard awareness and reporting. The procedure required that if a worker became aware of any hazard or defect in the premises it was the worker's responsibility to put in a report about it. Wilkinson agreed that despite inductions and instructions to report hazards and defects in the plant he had not reported this defect.

BP submitted that Wilkinson had failed to establish that there was any significant risk of slipping based on the combination of:

  • The plaintiff failing to file any hazard / defect report prior to the subject incident
  • The absence of any evidence from any other driver that the metal strip presented a slipping hazard
  • The absence of any of the usual sort of evidence that one would expect in a case such as this, such as testing of the coefficient of friction of the metal strip.

The court dismissed BP's submissions and held that:

  • Wilkinson's attitude to reporting hazards and / or defects was influenced by his perception of when his responsibility arose. It was clear from his evidence that he thought his responsibility was triggered if he was hurt and he considered that to be the attitude of others in the workforce. As a consequence, the fact that he did not file a report did not mean that his evidence about prior incidents of slipping was not truthful
  • The absence of evidence other than that from Wilkinson cuts both ways. BP submitted that if the metal strip was a hazard then there would have been dozens, if not hundreds, of truck drivers who had come to the premises over the years who would have become aware of it. No witnesses were called to support Wilkinson. But equally, no witnesses were called by BP to deny Wilkinson's allegation
  • Even more significantly, BP led no evidence of its own as to tests of the coefficient of friction of the metal strip. If anything, BP had available to it far more resources than a mere truck driver. The claim that a shiny metal surface was slippery was hardly inherently improbable. A negative inference could be drawn as a result the absence of such evidence being led by BP
  • Once the hazard was reported by Wilkinson, BP's terminal manager fitted anti-slip tape to the metal strip to eliminate the hazard. Therefore, BP accepted the criticism in the defect report supplied by Wilkinson as legitimate and thought it appropriate to take action. Wilkinson's evidence was the only evidence presented to the court. The court found that that Wilkinson gave his evidence in a very forthright manner and there was no reason to think that he was doing other than his best to tell the truth.

The only criticism of Wilkinson's credit was his failure to file a hazard / defect report. The court found that such failure to do so was perfectly explicable. The court was therefore satisfied that the metal strip constituted a slipping hazard and that the risk was foreseeable.

The next question to be determined by the court was whether BP's response to the risk, in doing nothing, was reasonable. In making a finding that BP response was not reasonable, the court held that the risk of slipping was significant and, therefore, BP should have taken steps to eliminate the hazard. The court then went on to find that the provision of anti-slip tape to the metal strip was a practical and effective cautionary measure in meeting the risk.

The court concluded that Wilkinson had established his case.


When a plaintiff does not disclose expert evidence to support an allegation of an alleged failure to comply with the required standards, the plaintiff may fail to satisfy the evidentiary burden. However, in cases where a plaintiff provides compelling lay evidence as to defects, and the defendant fails to disclose any expert evidence in response, a court may be inclined to rely upon the plaintiff's lay evidence in making an adverse finding against the defendant. This is more so the case in situations where the defendant has significant resources at its disposal to obtain such evidence.

Defendants must be mindful when deciding whether expert evidence is required to assist in defending a claim. Consideration should not be restricted to responding to plaintiffs' expert evidence and should take into account plaintiffs' claims as a whole.

Had BP disclosed expert evidence confirming that the metal strip was not a hazard or, alternatively, had led positive evidence that the metal strip did not pose a risk of injury, then the Queensland Supreme Court's decision may have been in BP's favour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.