O'Halloran v Averal Pty Ltd
[2008] VSC 361
•12 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9388 of 2005
| CHAD O’HALLORAN | Plaintiff |
| v | |
| AVERAL PTY LTD | Defendant |
---
JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 SEPTEMBER 2008 | |
DATE OF RULING: | 12 SEPTEMBER 2008 | |
CASE MAY BE CITED AS: | O’HALLORAN v AVERAL PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 361 | |
---
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin with Mr A. Ingram | Clark Toop & Taylor Lawyers |
| For the Defendant | Mr R.J. Stanley QC with Ms A. Magee | Herbert Geer Lawyers |
HIS HONOUR:
In my opinion evidence in accordance with the tenor of the statement of Michael Cardamone is admissible in part, but in part only. The relevant general principals were summarised by Field Justice Haydon in Makita (Australia) Pty Ltd v Sprowles[1], and summarised in paragraph 85 of his Honour's judgment.
[1](2001) 52 NSWLR 705.
In my view paragraphs 1 to 3 of the statement do reflect admissible evidence as to Mr Cardamone's expertise with respect to knowledge of safe practices in restaurant kitchens. Such knowledge is derived from the experience of 26 years to which he deposes and forms a proper basis for expert evidence as to procedures that might have been adopted at or prior to the time the plaintiff was injured.
It would be a very strange situation if evidence could not be called from someone who operated a restaurant kitchen as to the fact that alternative practices were available. In my view the safe operation of a restaurant kitchen is an identifiable field of specialist practice and the witness has stated facts with respect to experience which are sufficient to justify the admission of evidence from him relating to that field.
In my view it's not necessary that a witness giving evidence with respect to such practices, be a chef. The questions which are in issue do not go to the culinary outcomes achieved by the processes in issue. The plaintiff’s own evidence is that he was injured when working under the instruction and supervision not of a chef, but the owner/operator of the restaurant.
I agree with Mr Stanley that the contents of paragraph 4 are self-evident but taken together with paragraph 5 and 6 they are, in my view, admissible as to Mr Cardamone's general practices with respect to instruction and supervision. I should add that what he says in this paragraph is clearly not hearsay.
The initial portion of paragraph 7 is admissible as identifying management concerns inherent in cooking with hot oil. But the extensive general observations which commence with the sentence, "Some of the ways of reducing these risks when using a deep fryer are", and continuing through five sub-paragraphs, comprise matters, which in my view are too broad and should be excluded.
Paragraph 8 identifies the basis on which the witness statement was prepared. Any evidence before the jury as to alternative practices should be given by reference to Exhibit A and other evidence given at this trial in terms of the starting point for description of alternatives.
Paragraph 9 should not be admitted, it ventures upon matters which are firstly too general and secondly, insofar as they might be confined to actions which the plaintiff on the evidence performed or maybe inferred to have performed, it trespasses onto the ultimate question of fact for the jury, in this case.
Paragraphs 10A and B are on the other hand, in my view admissible. They describe alternative cooking methods which it would be open to the jury to consider when addressing the question whether the plaintiff's injuries were reasonably avoidable by the adoption of an alternative system of work.
Once again, in my view, they go to safe cooking practices within a restaurant rather than culinary outcomes.
10C is not admissible, it goes to an ultimate issue, properly one for the jury.
Paragraph 11 is likewise objectionable in its current form. In my view it again goes to questions of ultimate fact and in part it really amounts to putting from the witness box inferences and hypotheses upon which the plaintiff wishes to rely. It contravenes the general principles which Mr Stanley has put to me by reference to High Court authority.
Paragraph 12 is also in my view a matter for the jury and does not fall within the expertise of the witness.
In addition to the matters foreshadowed in the statement, Mr Tobin tells me that it is proposed to adduce DVD evidence of alternative cooking methods and to produce a further example of a fisherman's basket cooked with the double thickness of a piece of pita bread, rather than the single thickness, which has formed the basis of the pita bread baskets previously produced to the jury. In my opinion, both these classes of evidence are admissible in this case and explicate what would otherwise be the subject of a less than satisfactory verbal description and I so rule.
---
0