Betts v Mackay Casings Pty Ltd
[2009] VSCA 276
•20 November 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3904 of 2008
| JAMIE THOMAS BETTS | |
| Appellant | |
| v | |
| MACKAY CASINGS PTY LTD | Respondent |
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JUDGES: | ASHLEY and BONGIORNO JJA and BYRNE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 November 2009 | |
DATE OF JUDGMENT: | 20 November 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 276 | |
JUDGMENT APPEALED FROM: | Betts v Mackay (Unreported, Supreme Court of Victoria, Harper J, 13 November 2008 | |
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TORTS – Industrial accident – Trial by judge and jury – Jury answer ‘no’ to question whether any negligence or breach of duty of the defendant was a cause of injury to the plaintiff – Alleged errors by trial judge in directions to jury concerning the issue of causation – Alleged lack of balance in judge’s directions – No error established.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S R McCredie | Nevin Lenne & Gross |
| For the Respondent | Mr M F Wheelahan SC with Mr J P Gorton | Wisewoulds Lawyers |
ASHLEY JA:
This is the judgment of the Court.
The appellant, Jamie Betts, was the plaintiff in a civil proceeding in which he claimed pain and suffering damages in respect of injuries allegedly suffered in the course of his employment by the respondent, Mackay Casings Pty Ltd, on 28 August 2000.
The proceeding was tried by a judge and jury at Wangaratta in November 2008. In answer to the question 'Was there negligence or breach of duty on the part of the defendant which was a cause of injury to the plaintiff?' the jury answered 'No.' Judgment was entered for the defendant on 13 November 2008.
Grounds of Appeal
Now the appellant appeals. The following grounds of appeal were pursued today although, as will be seen, the arguments advanced in support of them in some instances sat uneasily with the grounds as formulated:
1.That the Trial Judge failed to adequately or properly relate the law of negligence to the circumstances of this case and the evidence as presented to the jury by the Plaintiff and the Defendant.
2.That the Trial Judge failed to adequately charge the jury with respect to the cause of the Plaintiff’s injury and the Learned Trial Judge failed to indicate or properly inform the jury that the Defendant had never put to the Plaintiff that his back injury was caused by his right leg collapsing. The Trial Judge failed to adequately or properly respond to the objection made by Plaintiff’s Counsel at Transcript Page 575 lines 8-16 with respect to this issue.
3.That the Trial Judge erred or inadequately directed the jury as to what, if any, inferences could be drawn by the jury with respect to the evidence that had been given in the case. In particular the evidence and any inferences that might be drawn from the Clinical Records of Dr Byrne and/or Mr Peter Battlay with respect to how the incident of the 28th August 2000 occurred. The Learned Trial Judge failed to recharge the jury following objection by Plaintiff’s Counsel on this issue. (See Transcript page 630 line 24 to page 631 line 13).
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5.That the Trial Judge failed to adequately or properly deal with and did not properly direct the jury with respect to the evidence and medical report of Dr Bittar and in particular what was mean [sic] by the reference to ‘retail worker’ as contained in the evidence before the jury (see Transcript page 612 line 9-27). The Trial Judge failed to adequately recharge the jury with respect to the evidence of Dr Bittar following the objection made by Plaintiff’s Counsel (see Transcript page 622 line 21 to page 623 line 23).
6.That the Trial Judge failed to redirect the jury following objections by Plaintiff’s Counsel to his summary of the evidence as to how and in what circumstances the Plaintiff suffered injury on the 28th August 2000 (see Transcript page 624 line 20 to page 625 line 3).
7.That the Trial Judge was in error and did not properly apply the law as to the grounds upon which a judge should redirect a jury when he rejected the Plaintiff’s objections in his charge and indicated that such redirection was inviting a ‘floodgates argument’ (see Transcript page 632 lines 4 to 19).
8.That the Trial Judge erred in explaining why Dr Choi fell into a particular category and informing the jury of the circumstances as to why due to procedural rules the doctor could not be called to give evidence (see Transcript page 580 lines 5 to 28).
In our opinion, for the reasons which follow, the appeal should be dismissed.
Matters which were uncontroversial and matters in issue
In August 2000, the appellant was employed by the respondent at its plant in Wangaratta. The plant produced sausage casings from sheep intestines. The appellant worked in the so-called 'green room'. His work involved thawing-out frozen sheep intestines, cutting them to length, placing them into large water-filled tanks which were on trolleys, and moving the filled tanks to the fermentation tanks. None of this was in dispute.
The appellant fell at work on 28 August 2000. That was not in dispute.
Neither again was it in dispute that the floor of the green room became slippery as a result of water and pieces of offal getting onto it.
The appellant's case was that he fell whilst pushing a filled tank. He said that he slipped - he assumed on a piece of gut - and fell heavily on to the floor. He claimed that he injured his low back. It was not in dispute that an MRI performed in 2001 revealed a lesion at the L5-S1 level. It was the appellant's case that this lesion had been caused by the fall. That was in dispute, as was the extent of any pain and suffering attributable to the lesion.
The respondent conceded that, if the appellant fell at work in the circumstances which he alleged, then his fall was attributable to its negligence. But it raised causation issues. It sought to argue, first, that the appellant's fall had a non-negligent cause – that it was attributable to the collapse of his right leg, which had been injured many years before; and second, that the fall, however it occurred, was not a cause of the pleaded injury.
The first of those issues seems to have been the main battleground. The question became whether the appellant's evidence should on balance be accepted, bearing in mind that he was alone at the critical time.[1]
[1]Mrs Kuhle, a witness called for the appellant, said only that she observed the appellant on the floor after he had fallen; and that he had fallen, as we have said, was not in dispute.
Ground 8
Ground 8 was argued first. The complaint articulated today was that the judge had impermissibly introduced into his charge matters which were not in evidence. Specifically, it was complained that the judge had told the jury that a Dr Choi, believed by the appellant to have gone overseas, had been located in Canberra very recently by the respondent, but that he had not been permitted to give evidence because of procedural rules. Although his Honour had directed the jury that it could not draw an inference against either party in the circumstances, and although counsel for the appellant at trial had supported the direction in response to an exception taken by respondent's counsel that the direction had been unduly favourable to the appellant, it was nonetheless submitted today that the direction had impugned the credibility of the appellant's counsel and, as a corollary, of the appellant's case itself.
To explain the submission, we must say something about the circumstances in which Dr Choi did not give evidence. The appellant gave evidence in examination-in-chief that he believed that Dr Choi, a doctor whom he had seen on 30 August 2000 - that is, two days after the fall - was overseas. No attempt was made to contradict that evidence. Then, late in the course of the appellant's case, respondent's counsel asserted from the Bar table that the doctor had been found in Canberra. He sought to adduce evidence from the doctor. Counsel for the appellant successfully objected, relying upon the respondent's non-compliance with Order 33 of Chapter 1 of the Rules.
In the addresses which followed, counsel for the respondent commented adversely on the failure of the appellant to call Dr Choi. Counsel for the appellant responded by telling the jury that there was uncontradicted evidence that the appellant believed the doctor to be overseas. Neither submission did counsel much credit.
Thereafter, there was discussion between the judge and counsel as to what, if any, direction should be given with respect to Dr Choi not having been called as a witness. Each counsel complained about the conduct of the other in final address. In response to the judge's question, counsel for the appellant said that he would not object to the jury being told that it could not draw any inference at all, although he argued that his Honour should say nothing about the matter.
On no view, having regard to counsel’s addresses, could his Honour have said nothing about Dr Choi not having been called. The direction which his Honour gave that no inference should be drawn against either party was neutral. At least, it was not adverse to the appellant. Indeed, as we have already said, it was respondent's counsel who took exception on the footing that the direction had been too favourable to the appellant.
We are now able to return to the contention that, sub silentio, the direction which his Honour gave impugned the credibility of appellant's counsel and so reflected upon the appellant's case. We reject it. His Honour was careful to make the point that the appellant's side had known nothing about Dr Choi's apparent presence in Canberra. It might have been better had he not referred to matters the subject of counsel's submissions which were not in evidence. But we consider that it is far-fetched to imagine that the jury would have drawn out of what his Honour said any impression that, either in a direct or an indirect way, he was reflecting adversely upon the appellant’s case.
Grounds 1, 2, 3, 6 and 7
These grounds were argued together. It is our understanding that this was done because, in different ways, they were said to raise the issue of causation - either because they bore upon what might be called the respondent’s non-negligent explanation for the fall, or else impugned what may be called the appellant's negligent explanation for the fall.
Under cover of ground 1, counsel for the appellant initially submitted today that the judge should have left his client’s case to the jury on the basis, inter alia, that the slippery floor had been a contributing cause to the fall, even if the appellant's right leg had collapsed. That submission was in substance abandoned when counsel rightly conceded that no such case had been pleaded, was supported by any evidence, or had been argued by counsel at trial.
Counsel then drew attention to parts of his Honour's charge in which the learned judge told the jury that the appellant must establish breach and causation. He took us through the pertinent directions one by one, and we debated their content with him. In the end, he conceded, and rightly so, that no complaint could properly be made about any of them.
We turn to ground 2. So far as it seemed to raise a Browne v Dunn[2] point, counsel expressly abandoned it. Although he adhered to the submission that it had never been put to the appellant that he fell because his leg collapsed, he said that the question whether his client had fallen because his leg collapsed had been made sufficiently clear by certain cross-examination in which reference was made to a history said to have been given by the appellant to Dr Choi on 30 August 2000.[3]
[2](1893) 6 R 67.
[3]No point was raised on the appeal, and none was taken at trial, about the form of the particular cross-examination, to which objection might well have been taken.
What counsel sought to maintain in respect of ground 2, and in respect of grounds 3, 6 and 7, was that his Honour had not adequately exposed the state of the evidence on the causation issue because he had not pointed out to the jury that the appellant had denied or had not admitted saying some things attributed to him by Dr Choi and by the respondent’s witness Ms Watson, that he had not been questioned about matters relied upon by respondent's counsel in his final address - most importantly, the contention that the fall had occurred because his right leg had collapsed - because he was not given the opportunity of denying accounts of events recorded by Dr Byrne and Mr Battlay, and because his Honour had not pointed out to the jury that the accounts given to those doctors were not necessarily inconsistent with the appellant’s account given in evidence.
The respondent, as we have said implicitly and should now say expressly, had no positive case to make. Its defence was essentially founded on things which the appellant had allegedly said to others. That defence, so far as it rested on what the appellant had allegedly told Dr Choi on 30 August 2000, had two elements: failure to mention any work incident occurring on 28 August; and, alternatively, mention of an incident in which the appellant's leg had simply collapsed. These matters were highlighted by counsel for the respondent in his final address. Counsel for the appellant met them head on in his address, in which, inter alia, he commented upon the failure of respondent's counsel to put to his client the proposition that the fall had in fact resulted from his leg collapsing.
This was a short trial. The issues were plainly joined. With reference to the issue whether the fall occurred because the appellant's leg collapsed, the learned judge said shortly:
If it was caused by Mr Betts right leg collapsing, for reasons having nothing to do with the state of the floor, then Mr Betts is not entitled to damages.
Counsel for the appellant at trial submitted thereafter that his Honour should tell the jury that this matter had not been put to his client. His Honour said that he would come back to it. He invited counsel to submit references to the evidence. It appears that counsel did not submit references.
But that was not the end of the matter, because his Honour did return to it. He said this:
Considerable controversy has been generated over Mr Betts’ first visit to the Ovens Medical Clinic. On 30 August 2000 he saw a locum at the clinic, Dr Choi. Doctor Choi took notes of the consultation. These included a direct reference to the plaintiff’s longstanding knife wound but no direct reference to any problems with his back. The doctor recorded that in the week before the visit Mr Betts ‘collapsed with pain’. His main problems were noted as weakness and pain, paraesthesia; problems which the defendant submits were clearly associated not with the plaintiff’s back but with his right leg.
The plaintiff for his part strenuously refutes, through Mr Monti, the inferences that he did not mention his back problem when consulting Dr Choi. Indeed, the plaintiff said that himself in his evidence. He says that he did tell the doctor about the fall two days before, and its consequences for his back, and that is consistent with the referral of the plaintiff for X-rays to both feet and ankles.
It is also consistent, Mr Monti submits, with the examination by Dr Choi of Mr Betts’ quadriceps, his hip flexors, his knees and his ankles. If the right leg were the only problem, Mr Mnti submitted, and he did not mention back pain specifically in his notes, why would Dr Choi be examining these aspects of the plaintiff’s physique? Moreover, the notes made on 21 September 2000 contain a direct reference to the plaintiff’s back in an entry made by Dr Choi: ‘Tender low back with associated erector spinae spasm.’
In substance, then, his Honour recounted the appellant's answer, put through counsel, to the issue raised, and in doing so he noted the appellant's evidence that he had reported the accident to Dr Choi.
It appears that counsel for the appellant did not take any further exception after this further direction.
We consider, as the case was conducted, that the learned judge was not obliged to do more than he did – which is not to say that the permitted cross-examination of the appellant was without fault..
That takes us on to the complaint raised in different ways by grounds 3, 6 and 7.
Dr Byrne was called for the appellant. His notes were, or could have been, in the appellant's possession. His evidence could have been no surprise. We can assume also that he gave evidence of Dr Choi's notes by consent.
The history noted by Dr Byrne on 1 February 2001, was that the appellant fell at work in September 2000 causing 'pain plus plus over both hips', and that 'tank rolled on to him'. That history was capable of being understood by the jury as being consistent with the appellant's case, or else as constituting an admission that the accident had occurred in some different circumstances.
Mr Battlay examined the appellant on behalf of the respondent. His report must have been provided to the appellant's side. It was read into evidence by consent. The appellant's side knew what was in it so far as the account which the doctor recorded about the incident was concerned. Again, that account was a version of events which was capable of being understood as being consistent with the appellant's case, or as constituting an admission that the mechanism of the accident had been different - although it was probably more of the latter persuasion.
The judge referred to the respondent's argument to the jury in closing address that the histories given to the two doctors were still different accounts of the incident, which should cause it not to accept the appellant's account of events.[4] His Honour then said that the appellant for his part relied upon his own direct evidence of the event - which was, in effect, to be contrasted with the indirect quality of the attack raised by the respondent by reference to the histories said to have been given to the two doctors.
[4]The argument did not make it clear whether the allegedly different accounts were relied upon as admissions against interest, or simply as going to the appellant’s credit. No point was taken about this by appellant’s counsel at trial.
At trial, appellant’s counsel took exception to this part of the charge, contending that the judge should have told the jury that the history said to have been given to the doctors was consistent with the appellant's account; and that it had not in any event been put to the appellant that he had in fact given such histories.
Concerning the first aspect of the exception, his Honour replied that it was clear what the issue was and that he was not obliged to traverse each piece of evidence. With respect to the second aspect of the complaint, his Honour responded that the plaintiff had the opportunity of clearing the matter up, but had not done so; and that ‘cross-examiners cannot be expected to ask questions when they don’t know the answer’.
Today, counsel first submitted that the allegedly different accounts had not been put to his client. He did not dispute that the accounts once given in evidence could stand as admissions against interest, if the jury so construed them, rather than being simply prior inconsistent statements bearing on credit.
We consider that there was no point to be made in this connection. In so far as Dr Byrne's evidence presented a problem, it was a problem which the appellant had to face and about which he had to make a difficult choice. On the one hand, he wanted to call the doctor, whose evidence was generally helpful. On the other hand, the history which the doctor had recorded was arguably unhelpful. Absent relevant cross-examination, the appellant had no opportunity of explaining any difficulty which the history presented. The problem which arises in such circumstances is by no means uncommon. It does not mean that the respondent had to give the appellant an opportunity in cross-examination to solve it.
So far as Dr Battlay is concerned, the appellant could have challenged the history given, had he desired to do so, in several ways. He could have refused to consent to the doctor's report being tendered. If the respondent had wished to rely upon the doctor’s evidence, it would then have had to call him, and he would have had to face cross-examination. Alternatively, appellant’s counsel could have made an application to recall his client, after the report had been read into evidence, if he thought that a problem then existed.
Today, counsel further submitted that the appellant's case should have been summarised by the judge so as to achieve balance, the summary including the appellant’s argument that there was no relevant inconsistency. That was, as counsel said in answer to the Court's questions, a complaint akin to that made at trial, a complaint which in our opinion was rightly rejected by the learned judge.
Ground 5
This ground concerns a comment by the learned trial judge arising out of evidence given by another doctor, Dr Bittar. The doctor gave evidence that the appellant had said, at the time of examination, that he was a retail assistant, and that he had not worked as a labourer since sustaining injury in August 2000. The doctor opined that the appellant was able to engage in suitable employment as a retail assistant.
In closing address, counsel for the respondent contended that the import of the witness’s evidence was that he had known nothing about the appellant working at the Bright Newsagency - there having been evidence that the appellant was so employed. Counsel for the appellant responded in final address by pointing out that Dr Bittar had indeed obtained a history which accorded with the factual situation that the appellant was working as a retail assistant.
In his charge, the learned judge adverted to the competing submissions, and he did so in a way which made it quite clear, not as a matter of comment but as a matter of fact, that Dr Bittar's evidence accorded with the submission made by appellant's counsel in his final address. But his Honour added a comment, which he identified as such, that whilst the appellant had told the doctor that he was a retail assistant, he had said nothing to indicate that there was any labouring component to that work.
This comment drew an exception from appellant's counsel to the effect that it was somewhat harsh. His Honour declined to redirect.
In our view, this matter was at the periphery. So far as any point was made by the comment, it was a very small point. Whether the judge might have better not made the comment seems to us to be of no consequence in the scheme of things. The question what the appellant was able to do in post-injury employment addressed an issue[5] with which the jury did not have to deal. Further, insofar as what the appellant told Dr Bittar about his work situation could conceivably have borne on the jury’s assessment of his credit when it was considering whether to accept his account of the circumstances of the fall, again we consider that the matter to which his Honour’s comment was directed was at the margin.
[5]That is, the extent of the appellant’s pain and suffering.
Order
The appeal should be dismissed.
ASHLEY JA:
The formal order of the Court is that the appeal is dismissed with costs.
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