Is it really expert evidence? Milanovic v Ventura Transit Pty Ltd [2022] VCC 909

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By Stuart Eustice, Partner, Holly White, Lawyer

Background

The plaintiff was a bus driver employed by the defendant. In the course of his employment, the plaintiff had to adjust the bus’s side mirrors as they often became misaligned. On 13 April 2008, while adjusting the side mirror, the plaintiff fell from the bus and sustained injury. The plaintiff commenced proceedings against the defendant seeking damages in negligence.

The plaintiff provided an expert report and supplementary report providing an opinion as to whether the defendant had a safe system of work in place and expressing the expert’s opinion regarding alternative methods which might have been deployed by the defendant to reduce the risk of injury to the plaintiff.

Admissibility of Expert Evidence

For an opinion based on specialised knowledge to be admissible:

  1. the opinion must be relevant;
  2. the witness must have ‘specialised knowledge based on the person’s training, study or experience’;
  3. and the opinion expressed must be ‘wholly or substantially based on that knowledge’.

While the Court accepted some parts of the reports may be admissible, it ruled the entirety of the two reports inadmissible, noting ‘there is no utility in undertaking a form of triage on some parts … so as to salvage bits of them’.

The Court accepted the defendant’s submissions, finding:

  1. the reports were a conglomeration of extracts from documents and such commentary was not expert opinion requiring specialised knowledge; and
  2. the expert made various irrelevant comments.

The court noted an expert is not entitled to give opinion evidence on matters the jury was capable of deciding for themselves.

This case serves as a reminder to parties that an expert report should not merely regurgitate facts and information and must proffer an expert opinion (and be relevant) in order to be admissible.

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