Day v Perisher Blue Pty Ltd

Reported Decision: 62 NSWLR 731

Court of Appeal

CITATION:	DAY v PERISHER BLUE PTY LTD [2005] NSWCA 110
HEARING DATE(S):	2 March 2005
JUDGMENT DATE:	11 April 2005
JUDGMENT OF:	Sheller JA at 1; McColl JA at 38; Windeyer J at 39
DECISION:	1 Appeal allowed; 2 Set aside the verdict and judgment in favour of the defendant of 1 October 2003; 3 Order a new trial of the proceedings; 4 The respondent/defendant to pay the plaintiff's costs of the hearing before his Honour Judge Patten; 5 The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6 The defendant's solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner.

CATCHWORDS:	Practice and procedure - conduct of witnesses - conduct of solicitors - coaching of witnesses
LEGISLATION CITED:	N/A
CASES CITED:	N/A
PARTIES:	Darrel Justin Day - Appellant Perisher Blue Pty Ltd - Respondent
FILE NUMBER(S):	CA 40936/03
COUNSEL:	M J McAuley - Appellant R E Montgomery - Respondent
SOLICITORS:	Low Doherty & Stafford - Appellant Dibbs Barker Gosling - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	7158/01
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

CA 40936/03
DC 7158/01

SHELLER JA
McCOLL JA
WINDEYER J

DAY v PERISHER BLUE PTY LTD

This is an appeal from a judgement of the District Court of 1 October 2003 which dismissed a claim made by Day, a J-Bar operator in the ski fields at Guthega, who alleged he was struck by an errant skier in the course of his employment as a consequence of his then employer, Perisher Blue Pty Ltd, breaching its duty of care to Day by failing to provide a safe system of work.

During the course of the trial, it emerged that the witnesses for Perisher Blue Pty Ltd, prior to the trial, had communications with each other and others, including the solicitors for Perisher Blue Pty Ltd, with respect to the form and content of the evidence they were to provide.

While cross-examination revealed the general nature of the communications between the witnesses and others, there was no cross-examination directed at the reliability of the evidence in light of such communications.

The issues before the Court of Appeal included:

(i) whether the trial judge erred in accepting the evidence of witnesses for Perisher Blue Pty Ltd in light of the conduct of the witnesses and the solicitors; and

(ii) whether Perisher Blue Pty Ltd breached its duty of care to Day.

Held:

Per Sheller JA (McColl JA and Windeyer J agreeing):

1. It is long been regarded as proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others and particularly not with other potential witnesses.…