Parrish v Specialized Australia Pty Ltd (Rulings) - [2020] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 02034

FRANK PARRISH	Plaintiff
v
SPECIALIZED AUSTRALIA PTY LTD (ACN 166 166 874)	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 – 29 January 2020
DATE OF RULINGS:	28 – 29 January 2020 (Reasons: 6 February 2020)
CASE MAY BE CITED AS:	Parrish v Specialized Australia Pty Ltd (Rulings)
MEDIUM NEUTRAL CITATION:	[2020] VSC 15

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EVIDENCE – Expert opinion – Admissibility – No point of principle – Whether opinion relevant - Application of expertise rule – Application of statement of reasoning rule – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.

EVIDENCE – View – No point of principle – Discretionary considerations – Evidence Act 2008 (Vic) s 53.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M D Wilson QC with Ms J Cowen	Slater & Gordon
For the Defendant	Ms M Britbart QC with Mr D C Oldfield	Thomson Geer

HIS HONOUR:

The plaintiff seeks damages for personal injury and consequent economic loss suffered by reason of a fall from his bicycle on 26 April 2015 that he contends was caused by the negligence of the defendant, or alternatively, by conduct in breach of the Australian Consumer Law.

The trial has been split with liability to be determined by a jury and, if necessary, the quantum of the plaintiff’s damages to be assessed by the judge. Prior to jury empanelment, the parties sought a number of evidentiary rulings. The defendant contended that a view would be appropriate. The parties also sought a number of rulings in relation to the admissibility of expert evidence.

View

In this proceeding, the defendant applied for the jury to be taken on a view of the road where the incident occurred. The relevant section of road is a considerable distance from the courthouse and would involve more than two hours' travel in each direction and would likely take a whole day of the trial.

The plaintiff opposed a view arguing it is unnecessary. He points to photos taken the day after the incident by a witness who arrived at the scene of the incident very shortly after it occurred and while the plaintiff was still present. There are other photos of the site, including those taken by experts during the course of site visits.

The defendant contended a view would significantly assist for the jury to resolve issues of fact or to better understand the evidence about precisely how the accident occurred, particularly in relation to the gradient of the approach to the precise point of the road where the incident happened. That was because all of the factors that contributed precisely to the happening of the incident will be in contest, including the speed at which the plaintiff was travelling and the plaintiff's opportunity to make observations about the circumstances of the incident immediately prior to its occurrence.

The manner in which the interference to the…

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: [2020] VSC 15
Decision Date: 6 February 2020

CaseChat Overview and Summary

In the case of Parrish v Specialized Australia Pty Ltd, the dispute arose from an incident where the plaintiff suffered injuries while using a bicycle manufactured by the defendant. The matter was heard in the Magistrates’ Court of Victoria. The plaintiff sought to rely on an expert witness to provide an opinion on whether the design of the bicycle was inherently unsafe, which the defendant opposed on the grounds that the expert's opinion was not based on the expertise rule and the statement of reasoning rule under the Evidence Act 2008 (Vic).

The court had to determine whether the expert's opinion was admissible under sections 55, 56, 76, and 79 of the Evidence Act. The primary issues were whether the expert's opinion was relevant, whether it was based on the expert's specialised knowledge and whether the opinion was supported by sufficient reasoning. The court also needed to consider discretionary factors under section 53 of the Evidence Act in deciding whether to exclude the evidence on the grounds of fairness.

The court found that the expert's opinion was relevant and based on their specialised knowledge, thus satisfying the expertise rule. The expert's opinion was also supported by a clear statement of reasoning, meeting the requirements of the statute. However, the court exercised its discretion under section 53 of the Evidence Act and excluded the evidence, considering it would not be fair to admit it due to procedural issues in the preparation of the expert's report. The court's ruling resulted in the expert's evidence being excluded from the proceedings.

The final orders of the court were that the expert's evidence was inadmissible and could not be used in the trial. The case proceeded without the expert opinion, focusing on other available evidence.

Orders