Ronchi v Portland Smelter Services Ltd

[2003] VSC 179

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

No. 1362 of 2001

ANTHONY MARK RONCHI	Plaintiff
v
PORTLAND SMELTER SERVICES LTD	Defendant

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JUDGE:	HARPER J
WHERE HELD:	Warrnambool
DATE OF HEARING:	15 May 2003
DATE OF JUDGMENT:	15 May 2003
CASE MAY BE CITED AS:	Ronchi v Portland Smelter Services Ltd
MEDIUM NEUTRAL CITATION:	[2003] VSC 179

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RULING – Expert evidence – Inadequacy of Order 44 statement – Application for leave to adduce evidence beyond the Order 44 statement – Leave granted to adduce evidence in accordance with certain limitations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr N Bird	Stringer Clark
For the Defendant	Mr P Rose SC with Mr G Moloney	Hunt & Hunt

HIS HONOUR:

1. I have before me a report dated 20 May 1999 prepared by Mr C Russell Purdey on behalf of CR Purdey &Partners Pty Ltd, Consulting Engineers.  The plaintiff now seeks to adduce evidence from Mr Purdey.  A question asked of the witness was objected to by counsel for the defendant on the basis that it took Mr Purdey beyond that which was the substance of the document purporting to be the Order 44 statement.

1. In my opinion the objection should be allowed.  It seems to me that the area to which Mr Purdey was being taken was indeed beyond the scope of the report.  It was a matter of substance, and accordingly, Order 44 had not been complied with in the sense that the plaintiff was seeking to adduce evidence which went to the substance of the expert's opinion, but which was not included in a statement served in accordance with Order 44.

1. The question now becomes whether leave should be granted to the plaintiff to adduce evidence through Mr Purdey that goes beyond the report.  Mr Tobin has set out a number of heads under which he wishes to adduce such evidence.  He also wishes to adduce evidence in response to matters put to earlier witnesses under cross-examination.

1. It seems to me that I ought to grant Mr Tobin leave to adduce evidence of the matters set out in the first four of Mr Tobin's heads.  I will state my note of those heads for the purposes of the transcript.  They are as follows:

(1)Where the "ride" of a vehicle would produce repetitious vibrations in the operator of the vehicle, then the operator would be susceptible to injury as a result.

(2)Appropriate work practice is to minimise that repetition so far as possible.

(3)If it is likely that repetitious vibrations will result from the proposed use of a piece of machinery, then those designing the environment in which the machinery will operate should go to appropriate experts - of which in this case there were a number.

(4)The system designed and put in place must include provision for appropriate maintenance.

1. The fifth head as I have noted it was "If the system cannot be designed for appropriate and safe use by particular employees, then the employer must not require that employee to undertake the relevant tasks." 

1. The last head seems to me to be one which goes directly to the question before the jury.  It is not appropriate in my opinion for someone such as Mr Purdey to himself give evidence of what in effect is reasonable work practice.  It is for the jury to determine what is reasonable in all the circumstances;  and to do so after they have been assisted by such expert evidence as goes to that point, but which does not usurp the jury's function in deciding that question.  It may be possible for Mr Tobin to so frame his questions of Mr Purdey, that the line will not be crossed.  If it is not possible then the questions should not be asked.  If it possible then I think Mr Tobin should have leave to ask them.

1. The same principle applies in relation to a number of the other heads put forward by Mr Tobin.  They too, it seems to me, suffer from the defect that if taken to their logical conclusion, they would involve Mr Purdey in expressing his view of the ultimate question - i.e. whether or not the defendant in this case provided the plaintiff with a safe system of work.

1. Mr Purdey must not trespass on that question, he must not impose his view of what is reasonable upon the jury.  As I have already indicated, it is pre-eminently the jury as the representatives of the community who must decide what is reasonable in the particular circumstances of this case.

1. Nevertheless, provided Mr Purdey does not trespass on that aspect of the jury's function, it seems to me that even if questions under the heads as I have outlined them would not fall within the four corners of the report of 20 May 1999, Mr Tobin should in the circumstances be allowed to ask those questions.

1. In coming to that conclusion, I take into account in particular my view that the area to be covered is not one likely to take the defendant by surprise or cause any injustice to the defendant.  It is regrettable that Order 44 has not been complied with in this case;  but ultimately the question whether to give leave to adduce evidence that has not been the subject of an Order 44 statement, must depend upon the justice of the particular case.

1. It seems to me that justice would best be served in this case if Mr Tobin were to be allowed to adduce the evidence to which I have referred, limited in the way to which I have referred.

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