Rees v Lumen Christi Primary School - [2010] VSC 514

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL
COMMON LAW DIVISION

No 1371 of 2007

MARGARET ISABELLE REES	Plaintiff
v
LUMEN CHRISTI PRIMARY SCHOOL	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Warrnambool
DATE OF HEARING:	16 June 2010
DATE OF RULING:	16 June 2010 (reasons delivered 17 November 2010)
CASE MAY BE CITED AS:	Rees v Lumen Christi Primary School
MEDIUM NEUTRAL CITATION:	[2010] VSC 514

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EVIDENCE – opinion evidence – whether evidence within s 79(1) of the Evidence Act 2008 – failure of witness to identify factual assumptions – failure to reveal reasoning from his specialised knowledge that had been applied to assumed facts to enable jury to test reasoning and draw their own conclusions of relevant facts – matters about which opinions expressed capable of being determined by the jury without expert assistance - held evidence did not satisfy s 79(1) - whether discretion under s 135 of the Evidence Act 2008 enlivened – held discretion enlivened - factors relevant in exercise of discretion – discretion exercised to exclude evidence – ss 79(1) and 135 of the Evidence Act 2008

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D G Brookes SC and Mr J Fitzpatrick	Stringer Clark
For the Defendant	Mr P A Scanlon SC and Mr P B Jens	Lander & Rogers

HIS HONOUR:

INTRODUCTION

On 16 June 2010, on the seventh day of the trial before a jury of six, the plaintiff’s senior counsel announced in the absence of the jury that he sought to call Professor Tronc to give opinion evidence. The court was informed that the plaintiff had filed three written reports of Professor Tronc being 14 July 2009,[1] 14 May 2010[2] and 12 May 2010.[3]
[1]During the submissions the plaintiff handed up what was called a court book. It was not otherwise relied on at the trial. I was informed that the reports that had been served on the defendant appeared in that book as follows: 14 July 2009 (104-208), 14 May 2010 (209-226) and 11 May 2010 (227-281)
[2]Ibid
[3]Ibid

The defendant objected to the admission of Professor Tronc’s evidence and contended that the plaintiff should first establish that the evidence was admissible. The plaintiff in seeking to establish the admissibility of Professor Tronc’s evidence only referred to the report of 14 July 2009. The plaintiff’s senior counsel indicated that he would not seek to tender any of the written reports, but that rather he would seek to lead limited oral evidence from Professor Tronc of a portion of his report of 14 July 2009.

After hearing submissions on behalf of both parties, I ruled that the plaintiff could not lead the limited oral evidence from Professor Tronc. These are my reasons for so ruling.

THE RELEVANT ISSUES

The plaintiff was employed by the defendant as an integration teacher’s aide at the Lumen Christi Primary School in Delacombe, a suburb of Ballarat. The plaintiff alleges that on 13 June 2003, whilst in the course of her employment with…

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: [2010] VSC 514
Decision Date: 16 June 2010

CaseChat Overview and Summary

The case of Rees v Lumen Christi Primary School involved the plaintiff suing the defendant school for injuries sustained by the plaintiff during a school-sponsored ski trip. The plaintiff alleged negligence on the part of the school in the organisation and supervision of the trip. The dispute came before the Supreme Court of Victoria. The primary legal issue before the court was whether the opinion evidence provided by the plaintiff's expert witness was admissible under section 79(1) of the Evidence Act 2008. The court had to consider whether the expert's evidence was based on factual assumptions that were not in dispute and whether the expert had revealed the reasoning from his specialised knowledge applied to those facts, enabling the jury to test the reasoning and draw their own conclusions.

The court found that the expert's evidence did not satisfy the requirements of section 79(1) of the Evidence Act 2008 because the expert failed to identify the factual assumptions upon which his opinion was based, nor did he reveal the reasoning from his specialised knowledge that he had applied to those assumed facts. The court concluded that the matters about which the expert expressed opinions were capable of being determined by the jury without expert assistance. Consequently, the court determined that the discretion under section 135 of the Evidence Act 2008 was enlivened. In exercising this discretion, the court considered factors such as the potential for the evidence to mislead or confuse the jury, the importance of the evidence to the case, and the availability of alternative means to present the evidence in an understandable form. Ultimately, the court exercised its discretion to exclude the expert's evidence.

The court's final order was that the opinion evidence of the plaintiff's expert witness was inadmissible. The exclusion of this evidence meant that the jury would not be able to rely on the expert's opinion in determining the liability of the defendant school. The implications of this decision were significant, as it highlighted the importance of experts clearly identifying their factual assumptions and reasoning when providing opinion evidence in court proceedings.

Orders