Evidence: it’s rather useful

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.

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Image from here

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.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

The oil of speculation

Expert evidence comes in many shapes and sizes.  Circular shouldn’t be one of them.

On2 February 2014 Rose Peralta entered a California supermarket to buy bread.  As she approached the bakery her left foot slid and she fell, suffering injury.  She did not see anything on the floor before or after falling but said she felt as though she had slipped on oil or grease.  She was observed to be wearing shoes with a 3-inch stiletto heel.

Peralta issued proceedings in the Los Angeles County Superior Court.  She relied on an opinion from a civil engineer.  The engineer opined that the flooring would be dangerously slippery if grease or oil were present, and that the fall would not be expected to occur without such substances on the floor.

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The defendant sought summary dismissal of the claim which was granted: Peralta v The Vons Companies Inc (L.A. Co. Sup. Ct, Oki J, 14 February 2017, unreported).  Peralta appealed.

The appeal was dismissed.  Concerning the engineer’s opinion the Court said –

Peraltas … attempt to establish there was a slippery substance on the floor through Avrit’s declaration, in which he opines that the manner in which Rose fell is consistent with a slip created by a foreign substance. Mere conjecture, however, is “legally insufficient to defeat summary judgment.” (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) The mere possibility that there was a slippery substance on the floor does not establish causation. Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to Vons, Peraltas cannot sustain their burden of proof.

The opinion was considered to be, in effect, speculation.

Peralta v The Vons Companies Inc (California Court of Appeal, 30 May 2018)

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

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The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.

 

The War got in the way

One of the beauties of law reports is that every so often you stumble across a long-forgotten case that you would otherwise never consider. This happened to me recently, when I found a case where the war got in the way of a plaintiff.

The case might be one of the earliest motor-accident injury claims. In the early twentieth century a lady named Wilkie was sitting in a jinker (a type of horse drawn buggy). The jinker was hit by a bus operated by the Melbourne Motor-Bus Co Ltd. She brought proceedings in the County Court of Victoria for her injuries. The jury rejected the claim and found for the defendant.

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Horse and jinker (Image from here)

The plaintiff applied for a new trial. Before her application could be heard, she learned that some of her witnesses – soldiers in the Australian Army – were to leave the state on 4 April 1916 (one might infer that they were to leave for the War). On 3 April 1916 she applied to the Supreme Court of Victoria for an order for their oral examination. Section 4 of the then Evidence Act 1915 relevantly provided that

It shall be lawful for the Supreme Court … in any action or suit depending … in any county court … upon the application of any of the parties to such action or suit to order the examination on oath upon interrogatories or otherwise before some person to be named in such order of any witnesses within Victoria … ; and by the same or any subsequent order … to give all such directions touching the time place and manner of such examination … and all other matters and circumstances connected with such examinations as appear reasonable and just….

The modern analogue of this section is §4 of the Evidence (Miscellaneous Provisions) Act 1958.

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Bus belonging to the defendant (Image from here)

A’Beckett J dismissed the application on the grounds that he had no jurisdiction. His concern seems to have been that because jury in the case at first instance had dismissed the claim, there was no pending case (presumably, at least, not until the plaintiff had successfully sought a new trial).

Wilkie v Melbourne Motor-Bus Co Ltd [1916] VLR 211