Josic v State of Victoria (Department of Education and Training) (Ruling No. 1) [2024] VCC 1108 (24 July 2024)

Last Updated: 26 July 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

GENERAL LIST

Case No. CI-23-03265

DERVA JOSIC	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)	Defendant

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JUDGE:	Her Honour Judge Magee
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2024
DATE OF RULING:	24 July 2024
DATE OF REASONS	26 July 2024
CASE MAY BE CITED AS:	JOSIC v STATE OF VICTORIA (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1108

RULING
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Subject: Admissibility of Evidence

Catchwords: Expert opinion – admissibility – whether opinion relevant – application of expertise rule

Legislation Cited: Evidence Act 2008 (Vic) ss 55, 56, 76, 79, 135.

Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Rees v Lumen Christi Primary School [2010] VSC 514; Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279

Ruling: Evidence of Mr Bill Contoyannis is inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Smietanka with Ms A Tate	Zaparas Lawyers
For the Defendant	Mr A Macnab SC with Mr T Storey	TG Legal & Technology

HER HONOUR:

INTRODUCTION

1. The plaintiff seeks damages for personal injury suffered by reason of an incident on 13 June 2017 which she contends was caused by the negligence of employees of the Department of Education and Training.
2. The plaintiff alleges that the State of Victoria was vicariously liable for the actions of the employees of the Department of Education and Training, pursuant to s.23(1)(b) of the Crown Proceedings Act.
3. In the particulars of negligence, the plaintiff has alleged, inter alia;

(g) Failing to instruct the Plaintiff to wear sports shoes to the professional development session

(h) Failing to direct the Plaintiff to remove her shoes prior to playing basketball

(i) Failing to instruct the Plaintiff how to safely throw a basketball into the hoop in circumstances where the Plaintiff was not wearing sports shoes

(j) Requiring, inviting and/or permitting the Plaintiff to play basketball in circumstances where she was not wearing sports shoes or other appropriate shoes

(l) Failing to instruct the Plaintiff that she did not need to and/or should not jump when shooting the basketball

4. The proceeding was listed for hearing as a jury trial to commence on 24 July 2024 with an estimate of 5-7 days.
5. On 24 July 2024, before a jury was empanelled, the defendant objected to evidence of Mr Bill Contoyannis forensic engineer of Dohrmann Consulting which was set out in two reports dated 11 April 2024 and 19 June 2024.^[1]
6. Submissions were made by Mr Storey, Junior Counsel for the defendant and Ms Smietanka, Lead Counsel for the plaintiff.
7. After hearing submissions from both parties, I ruled that evidence of Mr Bill Contoyannis was inadmissible.
8. As I did not wish to delay the empanelment of a jury any further than necessary, I indicated that I would publish my reasons for this ruling in due course.
9. These are my reasons for so ruling.

PRINCIPLES

10. In order to determine the admissibility of Mr Contoyannis’ evidence, the following sections of the Evidence Act 2008 (Vic) (the Act) are relevant:

Section 55 Relevant Evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding...

Section 56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

Section 76 The opinion rule

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Section 79 Exception–opinions based on specialised knowledge.

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Section 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing: or

(c) cause or result in undue waste of time...

11. In Dasreef v Hawchar,^[2] the majority of the High Court stated that when considering opinion evidence, admissibility is to be determined by application of the requirements of the Evidence Act and a two-stage inquiry is required.^[3]
12. The first part of the test is to ask is why the evidence is relevant. As the majority observed:^[4]

“Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact” ... the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.”

13. If relevance is established, then the second test arises – whether the exception under s 79(1) of the Act renders opinion evidence admissible.
14. First, under s 79 of the Act the witness must have ‘specialised knowledge based on the person's training, study or experience’ and second, the opinion expressed in evidence by the witness must be ‘wholly or substantially based on that knowledge’.
15. As explained in a separate judgment in Dasreef,^[5] Heydon J said that the question of whether the exception under s 79(1) of the Act applies may be considered in the light of four ‘rules’ (one of which is in three parts). They are:

1. Is the opinion relevant (or of sufficient probative value);^[6]

2. Has the witness properly based 'specialised knowledge' (the expertise rule);

3. Is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule); and

4. Is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):

• are the ‘facts’ and ‘assumptions’ on which the expert's opinion is founded disclosed;
• is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
• is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule).

16. Failure by the party tendering expert opinion evidence to comply with the factual basis rules makes that opinion evidence irrelevant.
17. Where the expert fails to apply his or her specialised knowledge to the primary assumed facts, does not disclose a path of reasoning and appears to have merely repeated the facts assumed, any opinion expressed will not satisfy s 79(1) and will be inadmissible.^[7]
18. The tendering party must identify and prove, or at least foreshadow the proof of, the facts relied on by the expert to an extent sufficient to persuade the Court that the evidence of opinion is relevant under s 55 of the Act.
19. The tendering party must identify the fact in issue in the proceeding, the probability of which may be rationally affected by the opinion evidence.
20. If the opinion is irrelevant or lacks sufficient probative value, it is inadmissible.
21. If the opinion of the expert is not based on the ‘specialised knowledge based on the person's training, study or experience’ of the witness and second, the opinion expressed is not ‘wholly or substantially based on that knowledge’, it is not expert opinion and does not fall within the exception provided in s 79.

Mr Bill Contoyannis

22. The plaintiff retained Mr Bill Contoyannis as an expert. He describes himself as a ‘consulting mechanical engineer with a master’s qualification on biomedical engineering science’.^[8] According to his curriculum vitae (CV) he holds a number of tertiary qualifications which include a Bachelor of Engineering (Mechanical) and a Master of Engineering Science (Biomedical Engineering).
23. Mr Contoyannis’ evidence, as set out in his two reports, is inadmissible on at least two grounds.
24. The first ground is that whilst he has specialised knowledge and is able to give, and has previously given, expert evidence, I am not satisfied that the opinions it is proposed that he provide to the jury are wholly or substantially based on his expertise as revealed by his CV. In other words, he does not satisfy the expertise rule.
25. Secondly, I have not been persuaded that his reports contain any statements of his reasoning which demonstrate how the ‘facts’ and ‘assumptions’ relate to the opinions he expresses which reveal that his opinions were based on his specialised knowledge. In other words, he does not satisfy the statement of reasoning rule.
26. His opinions venture into the area of speculation as to the circumstances of the incident – he makes assumptions beyond the what the plaintiff told him about the incident.
27. One example of this speculation is found in his first report where he recalls that the plaintiff told him the following:

“4.31 Ms Josic said that she had made a “few” attempts at shooting for goal and each time she would bend her knees and shoot the ball by extending her arm and her legs as she did so. Consequently, she said that she would jump up a little as she had a shot.

4.32 Ms Josic said on one of the shots, having released the ball, she landed awkwardly on her right foot and rolled her ankle.”^[9]

28. Mr Contoyannis was not told that the plaintiff had to change directions quickly or apply high forces to the ground. He assumed that the plaintiff undertook the following activities on the day of the incident:

“7.12 ...

Jumping and landing - applying high forces to the ground; therefore requiring cushioning and often support for the ankle; and

Changing directions quickly - applying high lateral forces over a short period of time; therefore, requiring good slip resistance and often support for the ankle.”^[10]

29. Another example is where he referred to the following features without any indication of the source of that information:

“7.16 Forces acting on the body during landing, such as basketball rebound landing, have been shown to be up to 7 times body weight... The increased forces acting on the body, together with a hard, raised heel, and elastic sides providing minimal support, therefore predispose the ankle to injury.

(footnote omitted)

7.17 The hard surface of the basketball court would also provide little shock absorption during landing.”^[11]

30. Whilst the question of the force of landing in shoes may well be an appropriate question to be addressed by a biomechanic,^[12] it still requires the witness to properly undertake testing and provide an expert opinion.
31. Mr Contoyannis did not conduct any tests other than measuring the heel height of the boots worn by the plaintiff in 2017.
32. In his second report he opines that ‘sports shoes’ would have greatly reduced the risk of injury. This opinion is a very generic and generalised one. It does not provide any information as to any particular feature of a specific sports shoe. It is a mere comment.
33. In his second report Mr Contoyannis asserted that he had at some undisclosed time in the past whilst at Monash University, designed athletic footwear with a normal heel for shock absorption and energy return which was never apparently produced or placed on the market.
34. A review of Mr Contoyannis’ CV does not demonstrate that he has any relevant expertise in relation to assessing sports shoes or making any comparative comment in relation to shoes. According to his CV he was involved with Monash University when undertaking his Master of Engineering Science in 2003.
35. There is insufficient evidence to establish that Mr Contoyannis holds any specific skills knowledge or expertise which would enable him to provide an expert opinion about sport shoes.
36. Further Mr Contoyannis did not provide a path of reasoning to support his opinion regarding sport shoes.
37. In addition, Mr Contoyannis’ evidence has very little probative value and would be unfairly prejudicial to the defendant. If I had not excluded his evidence under s 79, I would have done so under s 135 of the Act.

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^[1] PCB 112-143 and 144-149

^[2] [2011] HCA 21; (2011) 243 CLR 588

^[3] Ibid 604 [37]

^[4] Ibid 602 [31]

^[5] Above n 2, 608

^[6] Bearing in mind the discretion under s 135 of the Act.

^[7] Rees v Lumen Christi Primary School [2010] VSC 514 at [38] and [39]

^[8] PCB 114

^[9] PCB 122

^[10] PCB 131

^[11] PCB 132

^[12] Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279 at [135] and [136]