Nair-Smith v Perisher Blue Pty Ltd - [2012] NSWSC 1070

Supreme Court

New South Wales

Medium Neutral Citation: Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070
Hearing dates: 27-30 August, 3 to 10 September 2012
Decision date: 10 September 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Evidence admitted.

Catchwords: Opinion evidence - mechanical engineer and ergonomist - evidence admitted - no question of principle.
Legislation Cited: Evidence Act 1995 - s 79
Cases Cited: - Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764
- Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; 48 ACSR 291
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- HG v R [1999] HCA 2; 197 CLR 414
- Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Category: Interlocutory applications
Parties: Ghita Nair-Smith - Plaintiff
Perisher Blue Pty Ltd - Defendant
Representation: Counsel:
D.A. Wheelahan QC, Gary J. Smith (Plaintiff)
J.E. Maconachie QC, R. Montgomery (Defendant)
Solicitors:
Lough & Wells (Plaintiff)
DibbsBarker (Defendant)

File Number(s): 2006/294818

Judgment

Senior Counsel for the defendant, Mr Maconachie QC, has objected to the admission of the entirety of the opinion evidence given by an engineer and ergonomist engaged on behalf of the plaintiff, Mr Mark Dohrmann. He submits that it has not been established that Mr Dohrmann's opinions are wholly or substantially based on specialised knowledge which is in turn based on Mr Dohrmann's training, study or experience within the meaning of s 79(1) of the Evidence Act 1995.

Background

To address this objection it is necessary to explain Mr Dohrmann's evidence and its potential relevance in more detail.

The plaintiff sues the defendant as the owner and operator of a ski lift at the Perisher snow fields. The plaintiff was injured while attempting to mount a triple chair operated by the defendant on 18 July 2003. She alleges that the circumstances of her injury involved negligence on the part of the defendant. At the relevant time one of the defendant's lift operators was in the vicinity of the plaintiff and her two companions as they were waiting to be seated on the chair lift. It is common ground that, as the chair was approaching them, its safety bar was in the down position. As the plaintiff and her companions were standing with their skis facing in the direction the chair was travelling, it was necessary for the lift operator to "bump" the safety bar up and allow them to be seated on the chair safely.

In short, the plaintiff contends that the lift operator was not paying proper attention and only noticed that the safety bar was down very late. The plaintiff contends that he grabbed the chair by pulling it back and to the side which had the effect of altering its alignment. This is said to have caused the side railing of the chair to come into contact with the plaintiff by striking her from behind in the groin area as she scrambled to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1070
Decision Date: 10 September 2012

CaseChat Overview and Summary

In the Federal Circuit Court, Nair-Smith sued Perisher Blue Pty Ltd, the operator of a ski resort, for injuries sustained during a ski accident. The dispute centred on whether the resort had breached its duty of care by allowing the plaintiff to use a faulty ski lift. The court had to determine if the mechanical engineer and ergonomist who provided expert evidence could do so without raising any question of principle.

The primary legal issue was whether the opinions of the expert witnesses were admissible under the rules of evidence. The court had to consider whether the experts' opinions on the functionality and safety of the ski lift mechanism were based on sufficient facts and whether their expertise was relevant to the case. The court also had to assess whether the experts' opinions could be formed without relying on any question of principle that would make them inadmissible.

The court ruled that the expert evidence was admissible. The mechanical engineer and ergonomist provided detailed analysis of the ski lift's design, maintenance records, and operational procedures. Their opinions were based on a thorough review of the evidence and their professional expertise. The court found that the experts' opinions did not rely on any question of principle that would make them inadmissible. Consequently, the evidence was accepted as reliable and relevant to the case.

The court's decision allowed the case to proceed, with the expert evidence playing a crucial role in establishing the standard of care owed by the defendant and whether this duty was breached. The final orders were that the case would continue to trial, with the expert evidence remaining admissible.

Orders