O'Halloran v Averal Pty Ltd

[2008] VSC 353

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

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 SEPTEMBER 2008
DATE OF RULING:	12 SEPTEMBER 2008
CASE MAY BE CITED AS:	O’HALLORAN v AVERAL PTY LTD
MEDIUM NEUTRAL CITATION:	[2008] VSC 353

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC 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:

1. Mr Tobin desires to tender through the plaintiff part of a DVD which shows the cooking of a basket comprised by a sheet of pita bread by way of submersion in the oil of a deep fryer.  The DVD shows the depression of the piece of pita bread within the oil in the deep fryer by way of a ladle held in the left hand of the cook, and the manipulation of the edges of the pita bread with tongs held in the right hand of the cook during the cooking operation.

1. I should add it also shows other means by which the pita bread might have been cooked, but these are not sought to be shown by way of the plaintiff's evidence, and I am concerned simply with the plaintiff giving evidence adopting the first operation which I have described.  Mr Tobin submits that the evidence depicts the manner in which the plaintiff says his superior demonstrated the job should be carried out, in turn, he submits that the plaintiff's evidence is, in substance, that he attempted to act in accordance with the demonstration, although he cannot say how far he went in doing so.

1. Mr Stanley submits that the DVD should not be admitted for two reasons.  Firstly, it is said it is irrelevant, and secondly, it is said that circumstances shown in it are materially inconsistent with, or not verified by, the plaintiff's evidence.  Insofar as the first objection is concerned, it is put that the plaintiff's evidence is that after he had been instructed by Mr Montebello as to how to cook the pita basket, Mr Montebello left the kitchen, and it was implied that the plaintiff was to continue to keep cooking pita breads.

1. The plaintiff says he did not split the pita bread himself, that had been done by Mr Montebello, but he remembers placing a split piece of pita bread in the fryer and plunging it with the ladle.  He also says that the ladle was in his right hand.  He has no memory of anything after plunging the pita bread into the fryer with the ladle until waking up on the floor, having been injured.  He is unsure whether, when he put the pita bread in the fryer, he put it in with his hand, or whether he used tongs.

1. The plaintiff's injuries, as he has described them to the jury, were principally to his right hand, and to the lower side of his right forearm.  As such, they bear the obvious inference that his right hand, and the lower side of his right arm, travelled into the hot oil in the deep fryer.  It seems to me that the DVD is capable of being regarded as relevant, because it demonstrates the relationship of the hand holding a ladle of the type which the plaintiff has identified and the hot oil during the cooking operation, which the plaintiff has stated he was instructed to perform.

1. More particularly it shows the positioning of the hand above the hot oil and placing pressure down towards the oil in order to hold the pita bread submerged.  It may be that ultimately the jury are not satisfied that the plaintiff sustained a loss of consciousness only after having burnt his hand.  It may be either, as Mr Stanley suggests, that he blacked out prior to burning his hand or that the jury is simply unable to decide whether he blacked out before or after burning his hand.

1. Despite this uncertainty, however, it seems to me that the relationship between the hand, the ladle, and the oil is one which is potentially susceptible of criticism as an inadequately safe system of work and that the DVD is explanatory of this relationship and the system in which the plaintiff was involved.  Accordingly, taking the view as I must at this point of time of the evidence from the point of view most favourable to the plaintiff, I'm not prepared to rule that it is irrelevant. 

1. The second ground of objection is that there are material discrepancies between what is shown on the video and the plaintiff's evidence.

1. Firstly, it is said that there is no evidence as to what the plaintiff was doing with tongs, if anything, at the time he was injured.  I accept that this is so, but the plaintiff's evidence is that what is shown on the video is what was demonstrated to him as to the manner in which to use the tongs during the cooking operation.  Further, and in any event, on one view at least, the question of what was done with the tongs is essentially irrelevant.

1. If it is accepted the plaintiff's right hand was injured, the critical question is on one view simply whether the manoeuvre with the ladle was a reasonably safe one or not and in all the circumstances of the case, including the nature of instruction that the plaintiff was given, as a relatively inexperienced teenager, working in a commercial kitchen. 

1. It is next said that the DVD is not reasonably demonstrative of the matters in issue, including the use of the ladle, because it shows the frying of a single slice of divided pita bread rather than an undivided double piece of pita bread.  It seems to me that despite the uncertainty Mr Stanley has established in cross-examination as to whether what was fried was a divided or undivided piece of pita bread, it would be open to the jury on the basis of the plaintiff's evidence in chief as the evidence currently stands to take the view that what was fried was in fact what he first described, namely a split piece of pita bread.

1. Ultimately both the plaintiff and the defendant’s witnesses will be describing something that happened some seven years ago, and I do not myself regard this question as having been finally resolved by the plaintiff's answers in evidence to date. 

1. The next discrepancy pointed to is that the cooking has been timed to take some 50 seconds, whereas the plaintiff's evidence, and as I understand it the evidence to be called on behalf of the defendant, will say that the relevant cooking operation took 15 to 20 seconds.  Presumably the relevant cooking time depends in part on variables such as the temperature of the oil.

1. It does not seem to me that this factor materially effects the sense in which the DVD might be helpful to the jury. 

1. There is a further discrepancy between the DVD and the plaintiff's evidence, although this was not dwelt on by Mr Stanley, namely that in the DVD the cook is holding the ladle in the left hand rather than the right hand, but again it seems to me that this circumstance is one which will be readily appreciated by the jury. 

1. Each of the circumstances I have referred to are matters well capable of exploration in questioning by counsel and indeed in final address.

1. In my view their relative significance is well capable of fair exploration by the defendant and there is no reason that they should be regarded individually or cumulatively as requiring the exclusion of the DVD and I propose to admit it.  They do not rob the DVD of relevance or deprive it of any potential probative weight. 

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