I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court. The Magistrate asked her “what’s the estimated duration of the hearing?”
AC: “I don’t have instructions on that, Your Honour”
Court: “Well, how many witnesses do you intend to call?”
AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]
Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?
A recent appeal out of California suggests how such a scenario might play out.
You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.
The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported). The plaintiff appealed.
The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience. The only expert evidence available in this case was supplied by the defendant. It said that he had observed the relevant standard of care.
Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.
The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of injury which she associated with yoga. These were not considered sufficient to raise a causation issue for a jury to resolve.
Stephen the Lawyer 