Primary Examination for the Bachelor of Laws

QUESTION FOUR:

On 1 August 2010 a Toyota Corolla collided with a Lamborghini Diablo in the intersection of North Terrace and Frome Road. The Corolla had been travelling east and making a right-hand turn from North Terrace on toFrome Road when the Lamborghini, which was travelling west along North Terrace at 50 kph, hit it head-on in the middle of the passenger side of the Corolla. The Lamborghini was wrecked beyond repair. Its owner has now commenced an action for negligence in the District Court of SA against the driver of the Corolla.Should the Court take a view of the intersection?

The Plaintiff’s case is that the Defendant commenced a right-hand turn when it was not safe to do so. The Plaintiff wants to call an expert witness, a traffic surveyor, to testify that the driver of a car waiting to turn right from North Terrace on to Frome Road has an unrestricted view of all oncoming traffic travelling west along North Terrace. On what basis would Defence Counsel oppose this evidence?

As part of the Defence case, Defence Counsel intends to callthe Chief Statistician of the Adelaide City Council Roadworks Unit to testify that two days after the collisiona routine survey of road users and pedestrians using North Terrace indicated visibility was restrictedby a series of signs and barriers which were in place as part of the North Terrace upgrade. Is evidence of the routine survey admissible? Can it be raised, for the first time, after the Plaintiff has closed its case?

10 MARKS

1. 
   At common law opinion evidence is inadmissible unless one of the exceptions apply ie exception for experts. Is the expert here sufficiently expert? Consider relevant tests. Conclusion – depends on which test is applied. Does the evidence add anything to knowledge of trier of fact? Should it be inadmissible because is normal every-day knowledge for judge sitting in Adelaide?
   
2. 
   Failing to raise evidence with plaintiff expert would be potential breach of rule in Browne v Dunn. Where the rule in Browne v Dunn is breached there are several possible remedies or sanctions including
   

recall of the witness (specifically confirmed in s46 CEA); allow a party to reopen its case so as to lead evidence to rebut the contradictory evidence; making adverse comments about the party in breach to the jury; more readily accept the evidence of a witness to whom contradictory evidence was not put.

3.