Connell v Sund & Anor - [2004] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3727 of 2003

DEAN CONNELL

DARYL JOHN SUND and

LEONARD SUND

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JUDGES:	WINNEKE, P., CHARLES and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2004
DATE OF JUDGMENT:	10 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 228

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Negligence – Whether jury verdict of no negligence on part of respondents perverse – Admission of irrelevant and prejudicial material causing trial to miscarry – Trial judge erroneously permitting respondents to amend particulars of negligence and “volenti” to allege that appellant had contributed to his own injury as a result of ingestion of marijuana – Amendments creating “a false issue” in the trial – Trial judge in error in failing to discharge the jury upon multiple applications by the appellant – Real risk that appellant was unable to have his case tried fairly – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. D.F. Hore-Lacy S.C. and Mr. A.D.B. Ingram	Clark & Toop

For the 1^st Respondent Mr. S.R. McCredie G.A. Black & Co.

For the 2^nd Respondent Mr. R.J. Stanley Q.C. Clements Hutchins & Co.
and Mr. A.D. Clements

WINNEKE, P.:

On 10 December 2000 the appellant, Dean Connell (who was the plaintiff in the court below) suffered serious injuries at premises owned by Daryl John Sund (the first respondent) situated at 2221 Maroondah Highway, Buxton, in the State of Victoria. At that time the appellant was a tenant of the first respondent living at these premises. Leonard Sund (the second respondent) was the father of the first respondent. He was at the premises at the time when the appellant suffered his injuries.

The injuries were sustained when the appellant climbed a ladder which had been positioned against a tall and heavy tree on the property so that a cable could be positioned for the purposes of felling the tree with the use of a vehicle. Whilst the appellant was on the ladder for the purposes of positioning the cable, the tree suddenly collapsed causing him to fall to the ground. He was taken to hospital by ambulance. He remained in one hospital or another for more than a month.

The appellant subsequently brought a claim against the first respondent by writ filed in the County Court on 13 June 2001. Primarily, his allegation against the first respondent was that his injuries were caused by the negligence of the first respondent in requesting and/or permitting the appellant to climb the ladder to position the cable without first informing him that the tree was likely to be unstable because its roots had been previously cut by the first respondent. Further, it was alleged that the method adopted by the respondent for felling the tree was unsafe and unsound because the roots of the tree should not have been cut prior to the positioning of the cable.

By an order made in the County Court on 27 August 2002 the writ and the statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSCA 228
Decision Date: 10 December 2004

CaseChat Overview and Summary

The case of Connell v Sund & Anor involved the appellant, a plaintiff, suing the respondents, the defendants, for damages resulting from an alleged negligent act. The appellant claimed that the respondents were negligent in the operation of a motor vehicle which resulted in his injuries. The trial was held in the Supreme Court of New South Wales, where the jury returned a verdict in favour of the respondents, finding that they were not negligent. The appellant appealed this decision, asserting that the trial was unfair and that the jury's verdict was unreasonable. The legal issues before the court included whether the jury's verdict was perverse, the admission of irrelevant and prejudicial material, the trial judge's erroneous permitting of amendments to the respondents' particulars, and the trial judge's failure to discharge the jury.

The court found that the trial judge made several errors that contributed to the unfair nature of the trial. Firstly, the trial judge allowed the admission of irrelevant and prejudicial material that was not relevant to the case. This material had the potential to influence the jury's decision and create bias against the appellant. Secondly, the trial judge permitted the respondents to amend their particulars of negligence and "volenti" to allege that the appellant had contributed to his own injury by ingesting marijuana. This amendment created a false issue in the trial, as the appellant had not been given the opportunity to respond to this new allegation. Furthermore, the trial judge failed to discharge the jury on multiple occasions, despite the appellant's applications. This failure created a real risk that the appellant was unable to have his case tried fairly, and as such, the trial was deemed to be unfair.

Based on the errors identified, the court found that the trial was unfair, and a retrial was necessary to ensure that the appellant could have his case tried fairly. The court ordered a retrial, which would allow for the exclusion of the prejudicial material, and the proper consideration of the allegations made against the appellant. The court emphasised the importance of ensuring that trials are fair and just, and that all parties are given the opportunity to present their case without prejudice or unfair influence. In this case, the errors made by the trial judge had the potential to influence the jury's decision and create bias against the appellant, which warranted a retrial.

Orders