Ball v Eldarin Services Metro Pty Ltd (Ruling No 3)

[2011] VCC 292

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

DAMAGES AND COMPENSATION

Case No. CI-09-03307

STEPHEN BALL	Plaintiff
v
ELDARIN SERVICES METRO PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2011
DATE OF RULING:	2 March 2011
CASE MAY BE CITED AS:	Ball v Eldarin Services Metro Pty Ltd (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2011] VCC 292

RULING

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Catchwords: Application to discharge the jury on grounds of inadmissible evidence being led.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore QC with	Tasiopoulos Lambros & Co
Mr G J Sala
For the Defendant	Mr R H Gillies QC with	Lander & Rogers
Ms M Tsikaris
HIS HONOUR:

1          My ruling is required upon an application to discharge the jury on the basis of evidence given by a witness called on behalf of the defendant, Mr Roy McLaughlin, which was to the effect that in carrying out the work which the plaintiff was undertaking in the course of the activity which he alleges gave rise to his injury; namely the lifting of a pit lid and other associated tasks, the plaintiff, when lifting the pit lid, was not complying with the defendant’s system of work.

2          It is not in issue that an allegation of this nature forms no part of the defendant’s defence in the proceeding and, accordingly, that the defendant will not seek to rely upon this evidence. Further, I accept that the evidence was volunteered by Mr McLaughlin in circumstances in which Junior Counsel for the defendant posed an innocent question which elicited a surprising response from him.

3          Nevertheless, a considerable amount of evidence has been adduced upon this issue, both in the form of exhibits and evidence given by the plaintiff and Mr Richard Lightfoot (an engineer) and it is clear:

• that the method which was employed by the plaintiff to lift the pit lid as described in his evidence is different to that described by Mr McLaughlin (and that the plaintiff’s version potentially assists him in his case both as to liability and causation) and;

• that it is open to the jury to make a finding that the method employed by the plaintiff to lift the pit lid unreasonably exposed him to a risk of injury; or was in breach of the duty imposed upon the defendant by reason of the provisions of the Occupational Health and Safety Manual Handling Regulations 1999.

4          This is a proceeding in which the defendant mounts an extremely forceful attack upon the plaintiff’s credit, veracity, and reliability as a witness.

5          In making this comment, I should not be taken to be critical of the defendant’s conduct in this regard or of the way in which Counsel for the defendant have conducted the trial.

6          It is a fact, however, that the evidence of the plaintiff as to the circumstances in which in his injury was occasioned is in issue and that it is specifically put that the plaintiff has fabricated parts of his evidence so as to improve his case against the defendant upon the issue of liability and causation.

7          It is submitted on behalf of the defendant that I should direct the jury that they are to ignore the evidence given by Mr McLaughlin on this issue; that the defendant will not rely upon the evidence and effectively disclaim it; and that the combined effect of that process will be to appropriately deal with the problem which has arisen so as not to deny the plaintiff the opportunity of a fair trial.

8          In considering the issue which arises, I take account of the fact that the jury is required to follow any direction which I give to them, that they should ignore the evidence which they have heard. I do consider the prejudicial effect of the evidence to be substantial however, in that the jury has heard evidence that the plaintiff did not comply with the defendant’s system of work.

9          I further take into account that the evidence of Mr McLaughlin generally will be relied upon by the defendant and I perceive that the defendant will invite the jury to prefer the evidence of Mr McLaughlin to that of the plaintiff upon every issue about which there is a discrepancy between them. I consider this factor to be of some significance in the outcome of this application, bearing in mind that the jury will be required to comply with a direction by me that they should ignore the evidence given by Mr McLaughlin as to the system which should have been employed by the plaintiff to lift the lid, but that I will be required to direct the jury that in all other respects it is for them to decide as to the evidence which they should accept when a conflict arises between the evidence of the plaintiff and Mr McLaughlin.

10        In addition, I consider that the issue which has arisen gives rise to particular difficulty given the circumstances of this case in which an attack is mounted upon the plaintiff’s credit; a specific allegation is made that he has fabricated his evidence as to the circumstances in which his injury was occasioned (which allegation I regard as forming the fulcrum of the defendant’s defence in this proceeding), and the jury has heard evidence which even now may be operating to cause them to consider whether the inconsistency between Mr McLaughlin’s evidence and that of the plaintiff arises by reason of dishonesty on the plaintiff’s part.

11        In these circumstances, have a real concern that, notwithstanding a direction given by me that the jury should ignore the evidence which gives rise to this application, they will be influenced inappropriately by evidence which they have heard and should not have heard, and that there is a real risk that a miscarriage of justice may arise should the matter continue as a trial by jury.

12        In these circumstances, I am of the opinion that I should make an order discharging the jury in this matter.

13        I have earlier indicated that it is my present position that the matter should continue before me as a cause. I have not, however, heard the parties on this issue and I will give them the opportunity to address me upon the issue. I will also hear the parties as to whether I should stay the order which I propose to make with respect to the discharge of the jury.

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