and Allan Hodder v Tracey Hamilton and John Paul Fitzpatrick
[2014] VSCA 279
•6 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0019 | |
| ALLAN HODDER | Appellant |
| v | |
| TRACEY HAMILTON and JOHN PAUL FITZPATRICK | Respondents |
---
JUDGES: | SANTAMARIA, BEACH and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 November 2014 | |
DATE OF JUDGMENT: | 6 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 279 | |
JUDGMENT APPEALED FROM: | Hodder v Hamilton & Fitzpatrick (County Court of Victoria at Melbourne, Judge Brookes, 17 February 2014) | |
---
ACCIDENT COMPENSATION - Occupiers’ liability - Jury trial - Application to discharge jury - Evidence - Cross-examination - Re-examination - Whether cross-examination impermissible - Whether re-examination arose out of cross-examination - DVD purporting to be a re-enactment of the accident - Whether DVD admissible- Whether DVD admissible in re-examination - Whether probative value of evidence substantially outweighed by the danger that the evidence might be confusing - No substantial wrong or miscarriage occasioned in the trial by the rejection of the tender - Evidence Act 2008, ss 55, 78 and 135(b) - Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2) - Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J P Brett | Arnold Thomas & Becker |
| For the Respondents | Mr C J Blanden QC with Mr B G Mason | Hunt and Hunt |
SANTAMARIA JA
BEACH JA
KYROU JA:
Introduction
On 8 March 2010 the appellant, Allan Hodder, visited premises at 34 Thomson Street Tatura to inspect a leaking roof. The first respondent, Tracy Hamilton, owned the premises and lived there with the second respondent, John Paul Fitzpatrick. The appellant attended the premises at the request of the second respondent. While the appellant was at the premises, he climbed a ladder that he had placed adjacent to a chimney to inspect the roof. The ladder fell while the appellant was standing on it, and the appellant sustained a severely comminuted fracture of his right ankle.
In March 2012, the appellant commenced a proceeding in the County Court against the respondents claiming that they were negligent and that they breached the duties of care they owed the appellant as occupiers of the premises.
On 11 February 2014, the appellant’s proceeding came on for hearing in the County Court before a judge and jury of six. On 17 February 2014, after a trial lasting five days, the jury returned a verdict for the respondents. Judgment was subsequently entered for the respondents against the appellant, and the proceeding was dismissed.
The appellant now appeals from the judgment entered against him. In summary, the appellant makes complaint that the judge erred when:
(a)ruling that the appellant was not permitted to adduce in re-examination a DVD showing a re-enactment of the actions giving rise to the accident as the appellant believed they had occurred;
(b)refusing to permit the appellant to adduce opinion evidence in re-examination as to the ease with which it was possible to perform the actions shown in the DVD; and
(c)refusing to discharge the jury.
The appellant’s complaints relate to matters that occurred during the evidence of the appellant, who was the first witness to give evidence at trial. While the application to discharge the jury was based upon questions asked in cross-examination of the appellant, the application was not made until after the conclusion of the appellant’s evidence, the calling of an orthopaedic surgeon and the reading to the jury of a report from a psychologist.
The parties’ cases at trial
The appellant’s case at trial was that he was standing on the ladder looking at the roof when he felt the ladder start to shake. The appellant described the second respondent coming up the ladder after him and going around him on to the roof. It was contended that this caused the ladder to move and subsequently slip away from the wall, leading to the appellant suffering injury.
The respondents’ case was that, contrary to the appellant’s case, the second respondent was the first to climb the ladder. The second respondent said that he was on the roof when the appellant started to climb the ladder, and that, while the second respondent was climbing up the roof with his back turned to the ladder, the second respondent heard the ladder slip and the appellant fall.
The appellant’s evidence-in-chief
The appellant gave evidence of the circumstances in which he attended the premises, leading up to the positioning of the ladder against the house. As to the circumstances of the accident, the appellant was asked and answered the following questions:
And then what happened after that? --- I made sure it was firm on the ground, approximately 70-degree angle, as the recommended height. And I said to John, “Hang on while I get up and have a look.” I got up one rung below the gutter-line, I said, “I can see the problem.” And the next thing I felt the ladder shake and I said, “For fuck’s sake, John.”
Then what happened? --- John stepped to the side of me, onto the roof and with him going around the front of the ladder, hanging on to it, caused the ladder to slip away and catch the top of the gutter as it was going down and I landed on the ground, on top of the ladder, with face down.
A little later in his evidence-in-chief, the appellant was asked and answered the following question:
When John went around you up the ladder, did he step right onto the roof?---Yeah, he stepped around straight onto the roof.
Later on, the appellant was asked and answered the following questions:
Thank you. I think you’ve already said this, but could you just try to expand on the way the ladder slid, the direction it slid? --- The way the ladder slid and the direction it slid? --- The ladder was leaning at approximately a 70 degree angle — can I have that ruler, please, and probably a book or something? The ladder was leaning against the spouting at approximately a 70 degree angle and when the second defendant stepped around me on to the roof and around the front of the ladder, it caused the ladder to slide away like that, grab the top of the gutter, go down probably about six foot, hit the brick wall and go out.
I think you might have mentioned it took the guttering with it? ---It pulled the guttering down.
After John stepped on to the roof, how much time elapsed between then and when you commenced to fall? --- 20 seconds at the most.
Did you have any conversation? --- The only thing I said was, “I can see the problem” and I said, “For fuck’s sake, John”, and that’s the last words I spoke in going up the roof.
And then it is immediately after that that the ladder began to slide? --- Yeah. As soon as I said, “I can see the problem” he’s on the ladder, come up, stepped around me and as soon as that happened, the ladder has slipped away.
As soon as he stepped around you, the ladder slipped away? --- Yeah.
When you said, “I can see the problem”, where was he? --- It was in the valley.
No, where was he? --- He was on the ground.
The appellant’s cross-examination
In cross-examination, the appellant described the ladder as having a rubber foot, and said that the foot of the ladder was on damp grass at the time of the accident. In cross-examination, the appellant was asked and answered the following questions:
In terms of the then decision to go up the ladder, I take it you were — you say you’re the first one up the ladder? --- The first one up the ladder, yes.
And as I understand what you say, you get to a position so you can see on to the roof? --- Correct.
And you’ve indicated in the diagram, by drawing on it, where you say the rung was, upon which you were standing when the incident occurs. Can I just ask you how many rungs up was that, do you know? --- It was approximately three metres and so it’s about nine rungs up? --- Approximately nine, yeah.
And when you stop on that rung, where is the guttering in relation to your body? --- Off to the left.
At what - - - ? --- The gutter?
The gutter? --- The gutter is probably — me legs are probably 18 inches above that rung.
I’m sorry, I didn’t understand that. I wonder if I could ask you — trouble us by getting out of the witness box and just showing the members of the jury where you say the guttering was in relation to your legs as you’re standing on the ladder? Perhaps if you move around to the front? --- Me legs were about there, just a step away from being able to get up on to the roof.
Your Honour, I think, if my learned friends agree, the plaintiff is indicating about mid-shin high. The guttering is at mid-shin height; is that right? --- Maybe down a little bit lower.
Maybe even a little bit under mid-shin? --- Me foot there — the gutter’s — yes, shin height, sorry.
Go back into the witness box, if you would. Can you indicate to the members of the jury how far above the gutter the ladder extended? --- The gutter was approximately 1500 above gutter line — the ladder extended approximately 1500 mill above the gutter line.
So where was the top of the ladder in relation to your body? --- The top of the ladder probably would have been level with me head.
Level with your head? --- M’mm.
Are you able to say to the members of the jury whether you were leaning against the ladder or whether you were holding on to the ladder with both hands? What were you doing? --- I was standing there hanging on with both hands, just at the angle of your body as you walk up the ladder.
Had you reached the position you’ve just described, and stopped, prior to the incident occurring? --- Correct.
And how long had you been stationary in that position, do you think, before you say Mr Fitzpatrick comes up the ladder behind you? --- I stopped, I looked and you could see in an instant what the problem was, so I would have been stopped only five or 10 seconds, as long to say, “I can see the problem”.
I just want to get the sequence correct. You say you climbed the ladder and you climb to the position that you’ve just described; is that correct? --- Correct.
You don’t pause earlier or stop? --- No.
You don’t sort of get to a position where your head and shoulders are above the gutter line and you don’t look up from there, you keep going to the position - - -? --- I had to get up high to see the valley because it’s going up around behind the roof.
So you go straight up to the position that you’ve just described? --- Correct.
And you stop there and look at the roof? --- As I got to that position, I looked at the roof and you could see it straightaway.
And you say you’re there for how long before you feel, on your description, the ladder shake? --- As long as it took. Like I said, I can see the problem. As soon as I said, “I can see the problem”, I could feel the ladder start moving.
Did you turn around or look down or do something when you felt the ladder moving?---I didn’t have time to.
You’ve got yourself on about rung number nine, you say; is that right? --- Correct.
So do you say that the defendant, Mr Fitzpatrick, then — he goes very quickly up the ladder, is that what you’re saying? --- A young 30-year-old, yeah.
So he doesn’t just sort of climb up calmly and slowly, one rung at a time, he almost runs up the ladder? --- Like a rat up a drainpipe.
A rat up a drainpipe? --- That’s how quick.
And you’re standing in the position you’ve described? --- Correct.
And do you remember — when you’re standing there, are you standing effectively upright? --- Yeah, of the angle of the ladder, square to the ladder, in a climbing angle.
You’ve got both hands on the ladder? --- Correct.
And have you got your arms out straight or are they like this?
How are they? --- I don’t remember exactly, but they’re probably about there (demonstrating).
And you tell the members of the jury at the time of this incident you’re about physically the same size as you are now? --- Correct.
I wonder if you could do us a favour. Would you mind standing for us and just turn side on to the jury. Stay in the witness box? --- I just turn out there, they can’t see me legs.
Don’t worry about your legs. Just stay in the witness box.
Turn side on to the members of the jury and put your arms in the position that they were in? --- (Demonstrating).
So this is how about arms were? --- I believe they would be, yeah.
So the ladder is where your hands are; is that correct? --- Yes.
As we see it? --- Yeah.
And your feet are on the ladder? --- Well, they’d have to be, wouldn’t they?
And you say that Mr Fitzpatrick, with you in that position, steps around you on to the roof? --- Well, I believe he did, unless I lent forward as he come up past me.
How did he step over, or around, you onto the roof?---It can be done.
How did he do it? --- Well, speak to my barristers.
They weren’t there, Mr Hodder? --- Well, there’s a DVD.
They’re not going to help us. You’re the one who was there, you’re the one who says Mr Fitzpatrick somehow gets around you onto the roof. I want you to the tell the jury how he did it? --- I’ll have to show them the DVD because I don’t know how he did it.
You don’t know how he did it? --- He come up and stepped around me. What am I to say?
So he, obviously, is in a position where, on your version of events, his feet can’t be on the same rung that your feet are on? --- Why can’t one foot go between two feet?
Are you saying that’s what happened? --- I believe that is what he’d have to do for him to get on the roof.
Did you see that happen? --- How in the fucking hell would you see it happen?
Did you feel it happen? --- All I felt the ladder started to slip away as he got on the roof.
Which side of you did he go, left or right? --- There’s only one side he can go, the right.
You say that he steps — where does he go when he gets onto the roof? --- He stepped on to the valley iron.
Stepped on to the valley iron, the one where the problem was that you say existed? --- Yes, down below from the problem.
Right. Is the valley iron not immediately in front of you as you’re on the ladder? --- Not with that style of roof, no, because it’s flash down into it. The valley’s cut short behind the chimney.
So you say he stepped into the valley iron? --- He stepped onto the valley iron, extension of the valley iron.
Did he push off you or where were his hand when he did this? --- I beg yours?
Did he push off you or the ladder, or did he just do it no hands? How did he manage to get on to the roof? --- I don’t know how he done it, it happened that quick.
And you say as a result of this manoeuvre, it’s not that — the ladder doesn’t go sideways, that is not what you say happened? --- It doesn’t fall sideways, it slipped backwards.
Just slipped down? --- Slipped backwards, out from the building.
So as you’re standing on the ladder, the ladder descends underneath you, goes down underneath you? --- The ladder goes down like that.
So the bottom of it moves out from the wall? --- And when it hit the wall approximately six foot down, it hit the brick wall and it catapulted back out because the distance the ladder was above the eaves, the eaves were a couple of foot, so when the ladder come down, being five foot above the roof, approximately, it had to fall and hit the brickwork.
Counsel for the respondents then put the respondents’ case to the appellant. Specifically, it was put to the appellant that the second respondent went up the ladder before the appellant. The appellant denied this proposition. The appellant was asked and answered the following question:
So it would stand to reason, wouldn’t it, that if the same process that was adopted inside was adopted outside, that is, the smaller, more agile Mr Fitzpatrick actually goes firstly up into the roof and then you look, if you were doing the same thing outside, he would go up on to the roof and then you’d climb the ladder and look? --- Incorrect.
Later on in the cross-examination, the appellant was asked and answered the following series of questions:
You don’t remember. If he says that occurred, would you take issue with that, would you disagree, or you just don’t know? --- I can’t agree or disagree because I didn’t hear him.
As you described the events to Mr Hore-Lacy, you described a definite gap between Mr Fitzpatrick somehow going around you and on to the roof and the fall? --- Correct.
What you said — this is transcript 53, Your Honour — you were asked this question by Mr Hore-Lacy, “After John stepped on the most”? --- Correct.
Right. So if you count to 20, that’s a pretty significant gap between him performing the manoeuvre you say he performs and the ladder falling? --- It is a significant gap, but I’m not 100 — that’s what I said, approximately 20 seconds, but after an accident happens and you’re in shock - - -
But you say, despite being in shock, you were certain what had occurred, which was Mr Fitzpatrick had performed this extraordinary manoeuvre somehow getting around you on to the roof and that had destabilised the ladder? --- Correct.
Subsequently, the appellant was cross-examined about what he did or did not say following the accident. The appellant was asked and answered the following questions:
Right. What you didn’t say to Mr Fitzpatrick immediately after this event was something along the lines of, “What the hell were you doing?” you didn’t say that, did you? --- ”What the hell are you doing?”
Yes, “Why on earth would you go”, as you described it, “like a rat up a drainpipe up the ladder, somehow hands free clamber around you on to the roof and cause the ladder to fall over?” That, as you describe it, is the most extraordinary and ridiculous manoeuvre anybody in their right mind would ever undertake and you say nothing to him at all? --- Only what I said when he was coming up the ladder.
Why didn’t you say something to him when you were on the ground, now injured, almost inevitably as a result of an event like that occurring?---It’s a bit late to say anything then, isn’t it, when you’re wanting help?
Why would you say nothing to him? --- Well, I was in shock and I said I was buggered and then Ms Hamilton, or the first defendant, at the time, went in, come out with the phone and she was on the phone.
As you describe the accident, it is entirely, totally and unarguably the fault of Mr Fitzpatrick, isn’t it? --- I never followed Mr Fitzpatrick at all.
I don’t think you understood. As you have described the accident occurring, the sequence of events and what happened, it is absolutely, totally and unarguably Mr Fitzpatrick’s fault that you fell? --- Of course it was.
Right. So why don’t you say anything to him immediately after the incident about what he did or why he did it or swear at him or do something? --- I swore at him coming up, mate.
But you say nothing afterwards? --- Well, I’m in pain and I want a bloody ambulance.
Why don’t you say anything to the ambulance people, when they arrive and you give them a history of what occurred, about this event occurring in the way you’ve described, about your mate climbing over you when you’re on top of the ladder and causing the ladder to fall? --- I think there was more important things, to get to hospital and get the bloody matter fixed.
What about when you get to hospital then? Why don’t you tell them at the hospital that that’s what happened? --- What’s the sense in telling them?
Well, they asked you what happened? --- Yeah, and I said, “The ladder slipped away.”
Yes, because you know what you told the hospital, don’t you? --- I said, “The ladder slipped away.” Did I have to go into a full story why it slipped away?
…
And you know that the history that it [the ambulance report] gives does not include any allegation of the ladder being pushed over or moved over or somebody climbing over you or anything like that, does it? --- No, I don’t say that.
No. It just says that you were standing on the third step from the ground when it slipped due to the surface? --- I believe that’s a misprint.
There was then further cross-examination about what the appellant said in relation to the circumstances of the accident as follows:
All you said is you were standing on a ladder and you fell off. That’s not what you’ve told the members of the jury, you’re not telling them you’re standing on a ladder and you fell off. You are saying you are standing on a ladder and some lunatic leaps over the top of you, onto the roof and pushes the ladder over? --- I didn’t say he pushed the ladder.
MR HORE-LACY: He’s not saying that.
HIS HONOUR: Just a minute, there is an objection. No, he didn’t use the word lunatic, Mr Blanden.
MR BLANDEN: I’m sorry, Your Honour. That’s is my characterisation of behaviour.
HIS HONOUR: Yes, it is.
MR BLANDEN: I will withdraw it. You say this extraordinary sequence of events occurs causing the ladder to fall? --- Correct.
But you say nothing about at all about it to the hospital when you get there? --- Well, I don’t think it’s anything — they didn’t ask me nothing about it, they was asking me about me medical examine (sic), not how the accident happened.
The appellant’s re-examination
The appellant’s re-examination commenced with the following questions and answers:
It has been put to you that what your evidence in effect is that you while you were standing on the ladder, do you understand that? --- Yes, I know he said it was impossible but - - -
It is not the first time you’ve heard that suggestion, is it? --- No.
Okay. As a result of that, did you create a DVD? --- Correct.
Showing somebody - - -
Objection was then taken by the respondents on the basis that this re-examination did not arise out of cross-examination.
After extensive argument, during which the judge watched the DVD, the judge ruled that the DVD ‘would be relevant as to whether it was possible for an adult male to manoeuvre himself around [the appellant] whilst standing on the ladder’. The judge found that this was an issue raised in cross-examination. However, the judge refused the tender of the DVD, saying:
In my view, the reconstruction, whilst relevant, would be likely to at least confuse the jury as to the mechanics of what happened just prior to the incident the subject of these proceedings. I will reserve leave to the plaintiff to adduce evidence in re-examination, if so advised, along the lines that a re-enactment took place in July of 2013 and whilst in a certain position on the ladder, an adult male ascended the ladder and was able to circumvent his body onto a flat roof.
In giving this ruling, the judge noted the submission of the respondents’ counsel that the re-enactment was different from the appellant’s evidence in that in the DVD:
(a) the ladder was stabilised;
(b)the appellant’s arms were not flexed in the way shown in the witness box;
(c)the roof in the DVD was a flat roof, in contrast to the roof at the premises on the day of the accident; and
(d)the appellant was wearing boots, compared with bare feet at the time of the accident.
Having delivered his ruling, there was then a further exchange between the judge and counsel, during which the judge said that his ruling was that the appellant could not show the DVD ‘at the moment’. The judge did not foreclose the possibility that something else might occur in the trial which might permit the DVD to be tendered.
Additionally, there was the following exchange between the judge and senior counsel for the appellant:
HIS HONOUR: No, not at this stage. You’ve told me that you don’t know whether the maker can be called. At this stage I will reserve your right to re-examine along the lines that a re-enactment took place and what he observed but without giving an opinion as to how easy it was. He can say that an adult male ascended the ladder behind him whilst he was standing on the eighth rung of a structure that was about shin height and he was able to circumvent a path around him on to the roof, if you’re so minded.
MR HORE-LACY: Can I say how easily it was done?
HIS HONOUR: No. I have already ruled that that would be an opinion. He doesn’t know how easy it was.
Both before and after the judge’s ruling, senior counsel for the respondents told the judge that he would not take issue with the fact that a re-enactment had occurred or make any submission that ‘the result [of the re-enactment] was anything different from the way the plaintiff has said’.
Following the judge’s ruling and these further exchanges, the appellant gave evidence of the re-enactment, including describing two people coming up the ladder behind him and stepping onto the roof. As foreshadowed in argument, no issue was subsequently taken by the respondents in relation to this evidence during the course of the trial.
The rejection of the tender of the DVD
In our view, the judge was correct to reject the tender of the DVD. While the judge rejected the tender on discretionary grounds, applying s 135(b) of the Evidence Act 2008, properly analysed, the attempt to tender the DVD involved an attempt to examine the appellant during re-examination on a matter that did not arise out of cross-examination. Such an attempt was, of course, impermissible.[1] It is of note that while the judge ruled that the question of whether it was possible for an adult male to manoeuvre himself around the appellant was an issue raised in cross-examination, the judge later stated in argument that cross-examining counsel did not in fact put that the appellant’s version was impossible. In the circumstances, and with respect to the judge, it is difficult to see how the re-examination to which objection was taken arose out of cross-examination.
[1]Unless the leave of the court was obtained.
Further, the relevance, and therefore the admissibility, of the DVD was and is a matter capable of debate.[2] The DVD was said to be a re-enactment of the appellant’s belief of the actions that occurred that gave rise to the accident. From a number of the appellant’s answers in cross-examination, it is plain that the appellant did not see the second respondent climb the ladder behind him, and that the appellant did not know how the second respondent got around him and onto the roof.[3] In such circumstances it is difficult to see how the DVD was probative of anything.
[2]See s 55 of the Evidence Act 2008.
[3]See for example the appellant’s answers in cross-examination extracted above: ‘Well, I believe he did, unless I leant forward as he come up past me’; ‘I’ll have to show them the DVD because I don’t know how he did it’; ‘I believe that is what he’d have to do for him to get on the roof’; and ‘How in the fucking hell would you see it happen’.
Turning to the application of s 135(b) of the Evidence Act, we see no error in the judge’s conclusion that, given the differences between the re-enactment and the appellant’s evidence, the tender of the DVD would have had the capacity to confuse the jury as to the mechanics of what actually happened on the day of the accident. While the appellant makes complaint that the judge’s ruling does not follow the statutory language of s 135(b) of the Evidence Act, in our view there is nothing in this point. It would have been better if the judge’s ruling had followed the statutory language. However, it needs to be remembered that this was an evidentiary ruling on a short point given after substantial argument. In the circumstances, we are not persuaded that the judge failed to apply the correct test when he determined as a matter of discretion not to permit the tendering of the DVD during the appellant’s re-examination. In any event, such probative value (if any) as the DVD might have had was substantially outweighed by the danger that the DVD might be confusing.
Next, the appellant made complaint about the judge’s refusal to permit him to give evidence as to the ease with which the others in the re-enactment climbed around him and made their way onto the flat roof shown in the DVD. In our view, the judge was right to conclude that the appellant could not give his opinion about such matters.[4] While it might have been possible to ask the appellant whether he was aware from his own observation as to any difficulty in, or associated with, the relevant activity, no such precise question was framed for his Honour’s consideration. In the circumstances, we are not persuaded that there was any error by the judge in the rulings he gave concerning the permissible scope of the appellant’s re-examination. Further, and in any event, given the differences between the re-enactment as the appellant’s evidence (such as it was, having regard to the appellant’s admitted lack of opportunity to make relevant observations), we are far from persuaded that a question of the type foreshadowed would have been relevant.
[4]We note that, while the appellant called in aid s 78 of the Evidence Act in relation to lay opinion in argument before this Court, no mention of s 78 was made by either side at trial. As a result, the judge was deprived of the opportunity of considering the issues relevant to that section. The failure of the appellant to rely on s 78 at trial deprives this Court of the ability to know whether the section might have been relevantly engaged in respect of any proposed evidence the appellant might have been able to give, had some specific question been framed for the judge’s consideration.
Finally, we should say in respect of the judge’s rulings in relation to the DVD and appellant’s re-enactment that, even if there was a basis for the tendering of the DVD or for obtaining some evidence from the appellant as to the ease with which the activity shown in the DVD was performed, the rejection of this evidence did not occasion in the trial any substantial wrong or miscarriage.[5] At no time did the respondents contend that the appellant’s version was impossible. They merely contended that it was improbable, and that the circumstances deposed to by the second respondent were more likely. Each side’s case was adequately put before the jury. The evidence of the re-enactment, which was not so significant as to require the appellant to attempt to tender the DVD in evidence-in-chief, and which suffered from the problems we have identified, was not of great moment in the context of the trial as a whole. The actual contents of the DVD were even less significant, once the appellant was permitted to give evidence of the re-enactment, which evidence was then not relevantly disputed or challenged by the respondents.
[5]See r 64.23(2) of the Supreme Court (General Civil Procedure) Rules 2005.
The application to discharge the jury
The appellant contends that the judge erred in failing to discharge the jury. While the application to discharge the jury was based upon what was said to be impermissible language and comments made by the respondents’ counsel in cross-examining the appellant, the application was not made to the judge until after the evidence of two subsequent witnesses had been received. In argument before this Court, the appellant complained about the use of the expressions ‘extraordinary manoeuvre’, ‘extraordinary and ridiculous manoeuvre’ and the likening of the second respondent to a ‘lunatic’ by the respondents’ counsel during the cross-examination of the appellant.
There is nothing in these complaints. The relevant parts of the appellant’s cross-examination were directed to the significant issue of why the appellant had either not complained to the second respondent about the actions of the second respondent or why these matters were not mentioned to others after the accident occurred. The words used were not some gratuitous characterisation engaged in by counsel for the respondents. As the judge said in rejecting the discharge application, counsel’s characterisations were consistent with the appellant’s evidence-in-chief relating to the actions of the second respondent.
While the use of the word ‘lunatic’ was perhaps not ideal, the word was withdrawn almost immediately it was uttered. As to the balance of the language used in the cross-examination, we agree with the judge that there was nothing wrong with this in the context of the appellant’s evidence and the appellant’s description of the accident. The cross-examination in this case was a far cry from the cross-examinations in respect of which this Court and the High Court have been critical from time to time. Further, that the cross-examination was anodyne is demonstrated by the lack of objection taken to it by the appellant’s trial counsel during the cross-examination of the appellant.
Conclusion
The appeal must be dismissed.
- - -
0
0
0