Gust v Merbein Aged Care Inc (Ruling No 1)

[2018] VCC 601

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-02031

TANIA MAREE GUST	Plaintiff
v
MERBEIN AGED CARE INCORPORATED	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:	1 and 2 March 2018
DATE OF RULING:	5 March 2018
CASE MAY BE CITED AS:	Gust v Merbein Aged Care Inc (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2018] VCC 601

RULING
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Subject:  EVIDENCE

Catchwords:             Application by plaintiff that the DVD produced by expert witness, engineer, engaged on behalf of the defendant, be excluded from evidence

Legislation Cited:     Evidence Act 1958 (Vic)
Ruling:  Application granted.  Evidence be excluded.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with           Mr G Clark	Ryan Legal
For the Defendant	Mr R Kumar with Mr D Churilov	Hall & Wilcox

HER HONOUR:

1       An application was made on Tuesday last week when we had the first jury, before opening, by counsel for the plaintiff, that the DVD produced by expert witness, Dr Culvenor, engineer, engaged on behalf of the defendant, be excluded from the evidence in this case.

2       I was advised the DVD showed a worker pushing a half-full trolley.

3       Counsel for the plaintiff submitted that DVD was of little use as any sort of re-enactment, and of no relevance to the present case as, on all the evidence, the trolley was fully laden at the time the plaintiff suffered injury.[1]

[1]Transcript (“T”) 17

4       Counsel for the plaintiff gave a number of examples from the documents discovered by the defendant and some of it Court documents, as follows:

·        hazard identification report 19.12.12

·        employee incident details

·        a risk assessment document dated 19 May 2013

·        the instructions to Dr Culvenor

·        the particulars of contributory negligence.

5       It was submitted the whole flavour of the defendant’s material, let alone the plaintiff’s, was that the trolley was full.[2]

[2]T19

6       Counsel for the defendant submitted it was premature to exclude the DVD without first having heard from the plaintiff.[3]  It was submitted we should just see what happens when the plaintiff gives evidence, and submitted that the video might be relevant in terms of contributory negligence.

[3]T20

7       However, counsel for the defendant was unable to point to a particular of contributory negligence in relation to which the DVD was relevant and relied on the general allegation of failing to use a proper method, or failing to take care for her own safety.

8       As I indicated during the hearing, what is shown on the DVD is not relevant to any existing allegation of CN.

9       In my view, the DVD could not be relevant at any time, and would serve to confuse the jury as to the circumstances of the incident, as would a photograph of a three-tiered trolley which plaintiff’s counsel sought to rely on when the trolley involved was a five-level trolley.

10      Accordingly, I rule that the DVD be excluded.

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