The Full Bench decision in the Endeavour Energy case

Question B2

Why did MR WILLIAMS quote from the Full Bench decision in the Endeavour Energy case? (multiple choice)

(a) It showed only toxicologists are expert witnesses

(b) It showed Commissioner Hunt could allow any evidence that was useful

use extract below

PN25

MR WILLIAMS: And no doubt there’s some guidance that you might take from that.

 

PNN26

THE COMMISSIONER: Well, Mr Williams, you wanted Dr Lewis treated as an expert witness and there was no objection there from you, Mr Reed. But is it your case, Mr Williams, that you object to Dr Pidd being described as an expert witness?

 

PN27

MR WILLIAMS: We don’t object to his evidence because he does express some opinions which appear to be within his expertise and I have some questions for him about issues such as deterrence and they seem to be squarely within his expertise. We do not accept, and we’re confident the Commission would not accept, and I doubt Dr Pidd would assert that he is an expert on the technical issues concerning toxicology and pharmacology. But the reason that we took no formal objection to the whole of the report proceeds from a finding in the Endeavour Full Bench decision and I’ll just read it because the issue arose there. The Full Bench said this:

*** KENNETH JOHN PIDD XN MR REED PN28

 

PN28

Dr Pidd was called to give evidence on behalf of the unions. Although he is not a toxicologist his curriculum vitae demonstrated that he was clearly a person with extensive expertise relating to alcohol and drug use in the workplace, appropriate responses to deal with risks to occupational health and safety as a result of such use, and the efficacy of workplace drug testing. Dr Pidd prepared a report which was filed in the proceedings and which the experts called by Endeavour Energy had the opportunity to comment upon and

criticise. Section 590 of the Act provides that except as otherwise provided FWA –

 

PN29

As it then was of course:

 

PN30

– may inform itself in relation to a matter before it in such manner as it considers appropriate. Section 591 provides that FWA is not bound by the rules of evidence. The Senior Deputy President had the discretion to admit the report and evidence of Dr Pidd as part of the consideration of the matters before him. This was appropriate given Dr Pidd’s considerable experience and expertise and the relevance of the report and evidence of two issues which were under consideration. In many respects it is not only qualified toxicologists who might provide useful evidence to the Tribunal in regard to issue relating to workplace policies and drug testing.

 

PN31

So Commissioner, we anticipated that a Full Bench having said that in similar circumstances, an objection would be overruled and within the framework that binds the Commission we would have to accept correctly so, and therefore we don’t object but we will be, as the Full Bench said, commenting upon and criticising some of the evidence which Dr Pidd purports to give on the basis he is plainly not qualified to give it. And in our submission, which will be our submission on the basis of cross-examination of course, you wouldn’t give weight to Dr Pidd’s technical evidence which he does purport to give apparently based on a literature review, particularly when it’s contradicted by our expert who is profoundly qualified for that task. But it seems to be the approach to accept that it’s a matter for submissions and then of course your consideration.

 

PN32

THE COMMISSIONER: All right.

 

PN33

Mr Reed, what do you have to say about that, also that this Full Bench decision was of August 2012 and has Dr Pidd done anything in his profession since that time that would change the views of this Full Bench to make him more qualified?

 

PN34

MR REED: I don’t really understand the Commission’s question. I mean – – –

 

PN35

THE COMMISSIONER: Well, this Full Bench in 2012.

 

PN36

MR REED: Yes.

 

*** KENNETH JOHN PIDD XN MR REED

 

PN37

THE COMMISSIONER: At paragraph 48 has said that he is not a toxicologist but he is somebody with extensive expertise. I don’t think there has been a declaration that he’s an expert witness and said appropriate weight needed to be given to the evidence, but it’s been the applicant’s position that they wanted Dr Lewis labelled an expert witness. You want Dr Pidd labelled an expert witness, do you?

 

PN38

MR REED: For what it’s worth, yes, but as the Commission has pointed out that the terms “expert witnesses” don’t appear in the Act and at the end of the day the Commission in evaluating the evidence will make an assessment of the probative value of the evidence that’s put forward. The evidence isn’t objected to. We say clearly that Dr Pidd has certain expertise.

 

PN39

My friend is quite correct in that the appropriate way of dealing with any issues about the facts or the opinions expressed by Dr Pidd is to deal with it by way of cross-examination firstly and then to deal with it in final submissions. But to the extent that people might be labelled expert witnesses it’s probably an unnecessary appellation to be applied in the proceedings. The evidence is admitted. The evidence is tested and the Commission makes an assessment of the evidence, its probative value, its weight and any other factors that arise out of those assessments at the end of the day.

 

PN40

THE COMMISSIONER: All right, very well.

 

PN41

So Mr Williams, you don’t otherwise object to the admission of Dr Pidd’s statement?

 

PN42

MR WILLIAMS: On that basis, no, Commissioner, I don’t.

 

PNN43

THE COMMISSIONER: All right, Dr Pidd’s statement will be admitted and marked R1.

 

EXHIBIT #R1 WITNESS STATEMENT OF DR KENNETH PIDD

 

PN44

MR REED: Yes, that’s the evidence-in-chief of the witness.

 

PN45

THE COMMISSIONER: Thank you.

 

***

 

PN323

Well, I think that can be very clear and I agree with you?—Sorry?

 

PN324

I agree with you but – if Arnott’s had the purpose of detecting actual impairment, then that would be a lost cause, wouldn’t it, no matter what they use?—So you’re suggesting that they shouldn’t try and measure impairment in the workforce?

 

*** KENNETH JOHN PIDD XXN MR WILLIAMS

 

PN325

No, Dr Pidd, I’m not at all. I’m suggesting that if that was their objective, that would be a lost cause because there is no testing method which can reliably predict impairment?—But there is a test that can reliably indicate potential impairment – that can reliably indicate drug use has occurred in the previous 12 to 24 hours. Whether that leads to – the only reason you can’t say it doesn’t lead to impairment is purely and simply because unlike breath analysis there is no evidence that could correlate (indistinct) that the amount of drug in the system with levels of impairment. The same thing applies to urine analysis. Blood and breath analysis is something different. There is a large body of research that indicates a certain level is associated with impairment. That research doesn’t exist. It doesn’t mean that the person is not impaired.

 

PN326

Dr Pidd, I think we might have identified the reason for your expressed opinions in this matter. You’ve misunderstood the purpose of the Arnott’s policy. The purpose of the Arnott’s policy is not to detect – limited to detecting impairment. In fact, that would be a lost cause. The policy is to detect drug use.

 

PN327

MR REED: Can I object to this? My friend is making statements. He ought to be asking questions.

 

 

PN328

MR WILLIAMS: All right, I accept that.

 

PN329

THE COMMISSIONER: Well, look, I would like to ask you, Dr Pidd, in terms of your understanding of the risk of impairment, are you limiting that to intoxication or do you accept – let me finish – or do you accept that the risk of impairment to Arnott’s includes the fatigue and the hangover effect?—Yes, I am saying that. But I’m also saying in the evidence I’ve given that in most cases the oral fluid can detect for the length of time that any post- intoxication impairment is likely to be evident

 

PN330

Well, having a look at your table 7A for methamphetamine, you say oral can test the incidence of the taking of it for up to 48 hours and that urine analysis is up to three days. You’ve earlier said that somebody could still be fatigued at 36 hours?—Yes.

 

PN331

So do you say that the oral testing would be sufficient in that circumstance?—Well, the oral testing could detect up to 48 hours in my understanding, which exceeds the 36-hour period.

 

***

 

PN381

Commissioner, thank you. I don’t have any further questions of Dr Pidd.

 

RE-EXAMINATION BY MR REED 11.46AM]

PN382

MR REED: I just have a couple of further short matters for you, Dr Pidd. You were asked some questions about tab 7(a) on page 4 of your report?—Just bear with me until I go back to that. Okay, yes, I have that in front of me now.

 

 

PN383

Under the table itself you cite a number of research papers?—Yes.

 

PN384

Are those research papers relevant to the information that’s supplied in the table?—Yes.

 

PN385

Do you know and, if so, which of those papers were written or contributed to by people with toxicological experience or expertise?—The first one, Alain Verstraete, he’s the man that was responsible for the original (indistinct) and the original European ROSITA studies. He has a history of roadside drug testing, both urinalysis and oral fluid, that extends back to 20 years. He is regarded as one of the world’s leading experts. Kyle Dyer is a colleague at King’s College who is pharmacologist and he basically conducted a literary review of about 20 different studies that examined the drug detection times of oral fluid, saliva – and hair, I think, if memory serves me correct, but I didn’t include that in the table – and he synthesised from that. That’s only a few. I mean, Marilyn Eustice has also produced papers. Marilyn Eustice would be America’s leading expert in this;

Prof Eustice. She is – – –

 

PN386

Just in relation to the papers that you’ve mentioned – – -?—Yes.

 

PN387

On page 4, the Victorian Institute of Forensic Medicine – – -?—That actually wasn’t a paper. It’s a web site; a flier. My point with that was that even accredited reputable laboratories cite these sort of figures as detection periods.

 

KENNETH JOHN PIDD RXN MR REED

 

PN388

What about Ovell that was mentioned earlier. Is that – – -They were clinical studies of particularly looking at detection times in oral fluid for cannabis and they found that it can be detected for much longer periods of time. If you get down to the point to where it is with the sensor cut points of like one microgram per microlitre, it’s very similar to what cannabis is except it doesn’t differentiate between – sorry, urinalysis doesn’t differentiate between occasional and frequent users, and those studies show that if you go down to levels that low, it can detect for periods of up to, you know, eight days in one occasion; but bear in mind they’re levels much lower than what our current cut points are, where the other ones were at levels much higher than that which is the practical levels that are used around the world.

 

PN389

You were asked some questions also about the evidence given in paragraph 8(a) of your report, which is contained at the bottom of page 5?—Yes.

 

PN390

The questions related to your evidence concerning post-intoxication performance. I see you cite there a paper by McGregor and others. Does that paper relate to issues concerning post-intoxication performance?—That goes back to the issue, as I said before, that if your concern is over someone who is a so-called chronic user or someone who may be addicted, their risk to safety if they are in the workplace in terms of performance – it’s really not performance, it’s withdrawal symptoms that can extend for much longer than the window of detection of both oral fluid and urinalysis. McGregor found that it ranged between seven to 10 days, where even with urinalysis methamphetamine is only up to three days. So those people who are in detoxication, if they had been tested on the fifth day they would have come up negative for urinalysis. The same thing would apply if that test was occurring the workplace, but I would put it that it’s highly unlikely a person in that situation would be in the workplace in the first instance.

 

PN391

Thank you?—And anyone who is a chronic – addicted to methamphetamine, it’s unlikely. I can’t really – – –

 

PN392

You were also asked some questions about your evidence concerning the conclusions you had drawn or the research that you referred to about the oral consumption of cannabis and its capacity to be detected by oral fluid testing. Do you recall that?—Yes, do.

 

PN393

All right. You deal with that at paragraph 9(b) on page 7 of your report?—Yes.

 

PN394

Can I just confirm with you does the Milman study from 2010 deal with the detection of orally consumed cannabis?—Yes. It was specifically – it was a follow-on study from what Dr John Lewis cited in his paper and potentially the same finding is in that paper, as well, too, where they looked at medicinal cannabis and they found that, yes, it is problematic trying to detect the active TAC, but if the test detects inactive metabolite, it’s quite good at detecting use.

 

PN395

All right?—From oral administration. Then the other studies I cited there, Newmeyer and Vanderway, looked at not medicinal tablet forms, they looked at oral fluids through dope cookies – or dope brownies as they’re colloquially termed.

 

KENNETH JOHN PIDD RXN MR REED

 

PN396

All right. Is Milman a toxicologist?—I would – the nature of – I know Newmeyer is. I would have to go back and research it, but I would say highly likely he’s either a psychologist or pharmacologist. The team of authors would be in that area.

 

PN397

You said a psychologist or a pharmacologist?—No, sorry, I said a pharmacologist or a toxicologist. Sorry if I had a Freudian slip or something.

 

PN398

That’s all right. There are a lot of words ending with i-s-t that we are using. Your evidence is that Newmeyer has toxicological expertise?—My understanding is – to be a hundred per cent sure, I would have to go back to the paper and look at their affiliations, but it’s unlikely that someone who is publishing in a toxicology journal on the toxicological effects of drugs on the body and method of detection would not have that sort of background.