Forbes Shire Council v Jones

[1999] NSWCA 419

CITATION:	FORBES SHIRE COUNCIL v JONES [1999] NSWCA 419 revised - 17/11/99
FILE NUMBER(S):	CA 40228/98
HEARING DATE(S):	26 May 1999, 1 June 1999
JUDGMENT DATE:	17 November 1999
PARTIES :	FORBES SHIRE COUNCIL v JOHN WILLIAM JONES & ANOR
JUDGMENT OF:	Handley JA at 1; Powell JA at 64; Giles JA at 65

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 16/96
LOWER COURT JUDICIAL OFFICER:	Christie DCJ QC

COUNSEL:	L King SC/R Cheney (Appellant) B M J Toomey QC/P J Doherty (First Respondent) J D Hislop QC (Second Respondent)
SOLICITORS:	Phillips Fox (Appellant) Palmers, Forbes (First Respondent) Cutler Hughes & Harris (Second Respondent)
CATCHWORDS:	NEGLIGENCE - misfeasance - personal injury caused by tripping over broken pipe in footpath - liability of Council and contractor; DAMAGES - whether award excessive in light of video and medical evidence - whether apportionment between defendants reasonable; CONTRACT - indemnity clause; TRIAL - whether rejection of line of questioning warrants new trial - whether refusal to allow witness to be called for cross-examination warrants new trial - exercise of discretion under District Court Rules Pt 28 r 9(2)
CASES CITED:	Voulis v Kozary (1975) 180 CLR 177 Stead v State Government Insurance Commission (1986) 161 CLR 141
DECISION:	Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed. Orders made.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40228/98
DC 16/96

HANDLEY JA
POWELL JA
GILES JA

17 November 1999

FORBES SHIRE COUNCIL v JOHN WILLIAM JONES & ANOR

NEGLIGENCE - misfeasance - personal injury caused by tripping over broken pipe in footpath - liability of Council and contractor

DAMAGES - whether award excessive in light of video and medical evidence - whether apportionment between defendants reasonable

CONTRACT - indemnity clause

TRIAL - whether rejection of line of questioning warrants new trial - whether refusal to allow witness to be called for cross-examination warrants new trial - exercise of discretion under District Court Rules Pt 28 r 9(2)

The first respondent tripped over a broken pipe and injured his back. He successfully sued the Council (as highway authority) and the second respondent (as works contractor) for negligence, the trial Judge awarding $194,480. Responsibility was apportioned 75% to the Council and 25% to the second respondent. The second respondent, Emoleum Pty Ltd, succeeded in its cross-claim for indemnity under a condition in its contract with the Council. The Council appealed, seeking judgment in its favour in the action. In the alternative it sought a reassessment of damages and the apportionment and challenged the construction of the indemnity clause. The second respondent cross-appealed against the finding of negligence and the apportionment, and sought a new trial, the issue being the conduct of the trial Judge in disallowing certain lines of questioning and refusing to allow an expert witness to be called for cross-examination, and the exercise of his discretion under DCR Pt 28 r 9(2).
HELD , allowing the appeal and dismissing the cross-appeal: (1) The judgment on liability should not be disturbed. (2) The Council’s appeal against the order that it indemnify the contractor succeeded. (3) The damages awarded by the trial Judge were excessive in the light of the video and medical evidence; Voulis v Kozary (1975) 180 CLR 177 applied. (4) The Council and the second respondent were equally responsible and the apportionment should be varied accordingly. (5) Handley and Powell JJA, Giles JA dissenting. The disallowance of the line of questioning in cross-examination, and the refusal to order a witness to attend for cross-examination, did not warrant a general new trial.
ORDERS


(1) Appeal by Forbes Shire Council allowed;
(2) Set aside the judgment and orders of the District Court except as to the liability of the defendants to the plaintiff;
(3) Order that there be a new trial limited to the issue of damages;
(4) Order that the responsibility for the plaintiff’s damages be apportioned equally between the defendants;
(5) Cross-appeal by Emoleum (Australia) Limited dismissed;
(6) The cross-appellant is to pay the appellant’s and the first respondent’s costs of the hearing on 1 March 1999, and four tenths of their costs of the hearings on 26 May and 1 June, and is to pay any other costs of the appellant and the first respondent of the cross-appeal;
(7) The first respondent is to pay 90% of the appellant’s costs of the appeal incurred up to 28 February 1999 and the second respondent is to pay 10% of such costs;
(8) The first respondent is to pay one half of the appellant’s costs incurred after 1 March 1999 not otherwise provided for by these orders;
(9) The first respondent is to have a certificate under the Suitors Fund Act.
(10) The costs of the first trial are to abide the decision of the Judge presiding at the second trial.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40228/98
DC 16/96

HANDLEY JA
POWELL JA
GILES JA

17 November 1999

FORBES SHIRE COUNCIL v JOHN WILLIAM JONES & ANOR
JUDGMENT
1    HANDLEY JA: At 8 o’clock on the evening of 31 October 1995 the first respondent, John Jones, drove his car to Templar Street, Forbes and parked it near the Anglican church. He got out and moved to the footpath. As he stepped on the footpath he said he felt something collapse under him, he caught his foot, and fell on his back. He immediately experienced “bad pain” in his lower back. After a while he got up slowly and walked to the nearby taxi rank where he met his wife.
2    He sued the Forbes Shire Council for negligence as a highway authority and the Council cross-claimed against its works contractor, Emoleum (Australia) Limited, which had resurfaced the footpath in August 1994, seeking indemnity or contribution. The plaintiff then added Emoleum as a second defendant. Emoleum cross-claimed against the Council seeking indemnity under a condition in its work contract.
3    The action was tried by Christie DCJ QC in the District Court at Forbes. He found a verdict for the plaintiff against both defendants for $194,480 and apportioned 75% of the responsibility to the Council and 25% to Emoleum, but then ordered the Council to indemnify Emoleum under the indemnity clause.
4    The Council appealed seeking judgment in its favour in the action and in Emoleum’s cross-claim, and in the alternative a re-assessment of the plaintiff’s damages and a different apportionment. Emoleum lodged a protective cross-appeal against the finding that it had been negligent and should bear 25% of the responsibility. The appeal was heard in a special list for cases against highway authorities.
5    The written submissions for Emoleum signed by Mr Mescher of counsel, served a week before the hearing, relied on the refusal of the Judge to allow him to cross-examine the plaintiff’s expert, Mr Brown, and the Council’s engineer, Mr Duff. These were new trial points which were right outside Emoleum’s grounds of cross-appeal.
6    The problems this created emerged on the afternoon of the first day of hearing after Mr King SC for the Council had been heard on liability and was being heard on damages. It became clear that there was a dispute as to whether the plaintiff’s solicitors had ever been given notice by the solicitors for Emoleum requiring Mr Brown for cross-examination. Mr Mescher claimed to have seen a copy of the relevant letter from his instructing solicitors to the plaintiff’s solicitors. The plaintiff’s solicitors denied ever receiving the original and the copy retained by the solicitors for Emoleum had been lost since the trial.
7    Emoleum wished to rely upon evidence from Mr Mescher corroborating the existence of the lost copy. Accordingly the case had to be adjourned to enable it to brief other counsel, and to file and serve an amended notice of cross-appeal and affidavit evidence. On the adjourned hearing Mr King SC completed his submissions and Mr Toomey QC for the first respondent addressed on liability. After the lunch adjournment Mr Hislop QC for Emoleum read the affidavits of Mr Mescher and his instructing solicitor and both deponents were cross-examined. An affidavit of the plaintiff’s solicitor was also read but he was not cross-examined. Further submissions were received and the case again adjourned part heard to a later date when the hearing concluded and judgment was reserved.
8    The issues concerning the conduct at the trial only arose in Emoleum’s cross-appeal. They would be academic if the Judge’s decision on the scope of the indemnity clause was affirmed. It is therefore appropriate for this question, raised in the Council’s appeal, to be dealt with at the outset.
Construction of indemnity clause

9    Emoleum’s standard terms and conditions were incorporated in its quotation to the Council and in the latter’s order for the work. There was no dispute that those terms and conditions formed part of the works contract. Clause 7 provided:

“ SPECIFICATIONS
7 (a) Clerical and technical errors are subject to correction at any time by Emoleum.
(b) The Customer shall indemnify Emoleum against all claims, damages, demands, penalties, costs, charges and expenses to which Emoleum may become wholly or partially liable through any work required to be done by Emoleum or goods or material to be supplied by Emoleum in accordance with the Customer’s specification”.

10    The works contract comprised Emoleum’s quotation, the Council’s order, and Emoleum’s terms and conditions. The work was defined in the quotation as:

“1 Supply and Lay ACO7 Asphalt 51.00 Tonne $ 210,000
HANDWORK

2 Supply and Lay ACO7 Asphalt 42.00 Tonne $ 153,000

Price Based on One Visit”.

11    The order form provided a space for a description of the works required where the words “as per quote 25332” had been inserted, this being the relevant quotation. The Judge’s reasons for upholding Emoleum’s right to an indemnity under cl 7(b) were as follows:

“reading [the] paragraph in its ordinary meaning and where necessary reading it against the person who relies upon paragraph 7, that is the second defendant, I still find that the clause is sufficiently wide and sufficiently expressed by way of its reference to specifications. I find that it does give to the second defendant an indemnity … from the first defendant … It was argued by the first defendant that there was no specification. Indeed there was very little documentary contractual material between the first and second defendant at all but the specification given by the first defendant to the second defendant was simply to re-bitumenise those portions of the streets of Forbes which were set out in other documents in evidence … That certainly would be a specification sufficient to fall within the ambit of paragraph 7 of the terms and conditions in my view”.

12    I cannot, with respect, accept this interpretation of the clause. The well understood meaning of specification in the construction industry is a document that defines in detail the work to be done. It does not cover a simple order for work such as that given by the Council in this case. No evidence was given of the meaning of the expression “ACO7 Asphalt” and the Court is not able to determine whether it would incorporate into the quotation something which fairly answered the description of a specification. However even in that case it would not appear that the incorporated specification was “the customer’s” for the purposes of cl 7(b). 13    On the construction accepted by his Honour every order from a customer would be a specification so that Emoleum would be entitled to be indemnified in every case, although it was negligent and its customer innocent. The clause however can fairly be read as referring to a case where a customer has required work to be done in accordance with a specification in its ordinary and well understood meaning in the construction industry. 14    It would be reasonable for Emoleum to be indemnified against claims arising from work done and material supplied in accordance with a customer’s specification. If it had properly performed its obligations under the contract, responsibility for damage to third parties could reasonably be imposed on the customer. This construction is fairly open and produces a reasonable result. In my judgment this was the effect of the clause. 15    Mr Hislop QC for Emoleum took a further point on the clause. He submitted that the words “in accordance with the Customer’s specification” only qualified the words “goods or material to be supplied by Emoleum” and not the earlier words “any work required to be done by Emoleum”. I do not read the clause in this way, and if there is an ambiguity it should be read against Emoleum. Under this construction Emoleum would be entitled in every case to be indemnified by its customer for defective work and the words do not require such an unreasonable construction. The Council’s appeal against the order that it indemnify Emoleum must therefore be allowed.

Misfeasance

16    The plaintiff’s case was that a pipe running beneath the footpath and discharging into the gutter at the kerb had been damaged in Emoleum’s work and had broken beneath his foot or being broken caught his foot. His evidence about the circumstances of the accident was challenged in cross-examination, it being suggested that it had occurred at a spot where there was no defect and that he had simply slipped on the kerb. The Council had arranged for the plaintiff to be filmed while participating in go-kart racing, and the Judge found on the basis of this evidence, and the cross-examination, that the plaintiff had exaggerated his complaints and attempted to mislead the Court. 17    Despite these findings the Judge accepted the evidence of the plaintiff and his wife about the site of the accident. She had taken photographs of the broken pipe within a week or two of the accident and these had gone into evidence. The plaintiff saw his general practitioner the day after the accident who recorded a history which was entirely consistent with his evidence. The findings about the site of the accident cannot be disturbed. 18    The broken pipe which caused the accident was shown in a number of photographs in evidence but the Council was a highway authority and as against it the plaintiff had to prove misfeasance; it also had to prove negligence by Emoleum in the course of resurfacing the footpath. Reliance was placed for this purpose on the report of Mr Brown, a consulting engineer with local government experience, who had inspected the broken pipe on 13 March 1996. His report stated:

“The broken pipe which is set into the kerb in Templar Street, Forbes is outside the rear entrance to St John’s Anglican Church and drains a portion of the Church property. I am informed that the Church was built in 1877 and the drainage pipe being of earthenware construction in all probability it was laid at the time the Church was built.
The footpath in Templar Street, … had been recently surfaced with an asphaltic overlay.
In the application of asphaltic overlay the material, being a mixture of bitumen and stone, is preferably applied hot, spread and rolled with smooth drum mechanical roller usually with a weight of not less than one tonne.
The earthenware pipe of nominal 6” diameter … is laid almost on the surface and at best would have had 2” of cover provided by the former pavement.
It was clear from my inspection that the pipe had been recently fractured, probably as a result of being run over by the roller or as a result of being subjected to excessive weight being placed near the end of the pipe.
Having fractured the pipe the broken edges should have been trimmed away so as to remove the protruding jaggered edge which constitute a danger to pedestrians”.

19    The report was tendered by plaintiff’s counsel during his opening and admitted without objection. The plaintiff called no other evidence going to misfeasance or negligence. The Council called Mr Duff, its Chief Engineer, who proved that the pavement work had been done by Emoleum as contractor to the Council. He also said that the work had been supervised by a Council employee, Mr Casamento, who was then working at Shepparton in Victoria. Mr Casamento would have inspected the work (which covered much more than this section of footpath) more than once a day, and each inspection would have lasted 15 to 20 minutes. He should also have checked the work after completion. 20    Mr Mescher was cross-examining Mr Duff to establish that the Council had not complained about the work when the following exchange occurred:

“Q And indeed you are not aware of any written notes by Mr Casamento or anyone else --

His Honour: I disallow these questions. There is no evidence from the other defendant that they made any complaints. You’re dancing at shadows, you’re trying to prove a negative.

Mescher: Q And the reason I put it to you that there was no indication in any of the documents of any complaints made by --

His Honour: I disallow this one too. There’s no evidence that there was any complaint. What are you concerning yourself about it for? If this man had said “we rang up Emoleum and were told ‘hey what have you left here’” you could cross-examine him about it but he hasn’t said anything like that”.

21    Mr Mescher proceeded with his cross-examination for a short time when another exchange occurred with his Honour:

“Q: After it’s swept it would be sprayed with an emulsion would you agree with that?
A Yes.
His Honour: Mr Mescher unless you can establish that this has got some relevance I’m going to disallow it. I haven’t heard a syllable of evidence uttered against your client that this was not done properly. If such evidence turns up you can cross-examine somebody about it but there’s no evidence at the moment. I’m sorry if I appear aggressive about it.
Mescher: Just your Honour I just - yes nothing further”.

22    Mr Doherty, who appeared for the plaintiff, then commenced his cross-examination. He established that after asphalt is laid it is smoothed out by a roller. Mr Duff said it would probably be a one to two ton roller for a footpath. The last question and answer in his cross-examination were:

“Q Could I suggest to you that the weight of the roller was in the vicinity of 7 tons would you disagree with that?

A It’s a fairly open footpath they could have used a bigger roller yes”.

23    Mr Cheney, who appeared for the Council, asked one question in re-examination. No application was made by Mr Mescher to re-open his cross-examination and Mr Duff was excused. 24    The Council then tendered some medical reports and the video and closed its case. Emoleum went into evidence and Mr Mescher tendered some documents and closed its case. There was no case in reply. A short adjournment intervened and the following exchange occurred immediately afterwards:

“Mescher: Your Honour there’s one matter that’s arisen, there is a document I wish to tender but there’s something that’s occurred during the adjournment that I was unaware of which unfortunately may change my position. I don’t know if this is the case but I don’t recall whether or not Mr Doherty tendered a report of Mr Brown or not in the matter.

His Honour: Yes I think it’s in.

Mescher: That report was tendered on the basis that Mr Brown would be available for cross-examination subsequently in the case and that was requested by my instructing solicitors.

His Honour: Well wait a minute.

[Doherty]: When?

His Honour: What was the exhibit number do you remember?

Mescher: C, your Honour as I understand. The reason I ask I don’t recall it being tendered but it is in my notes.

Doherty: Done so --

His Honour: There’s nothing there you’d need to cross-examine about. There’s nothing there that’s in issue. I mean there’s an inescapable inference that your roller broke the pipe but I don’t know where that leads us.

Mescher: Well that’s something I wish to be heard on in due course your Honour.

His Honour: I don’t (doubt) you’ll be heard on it …

His Honour: I refuse you permission to cross-examine the author of exhibit C. That should protect your position”.

25    In his final judgment the Judge said:

“There is some expert evidence … that it is very likely and indeed I think the inference is irresistible … that this pipe was broken at the time that the bitumen surface was relaid in August 1994 … The expert in Exhibit C is of the view that the drainage pipe being of earthenware construction in all probability was laid at the time the Church was built. That seems to me to add very strongly to what I find to be an inescapable inference that this pipe was damaged as at August 1994. It was damaged during the course of work commissioned by the first defendant and performed by the second defendant. Consequently it seems to me that the first defendant and to some extent the second defendant were under an obligation to inspect the works once they were finished and to ensure that no traps such as this broken pipe were left exposed to the members of the public …
It seems to me that the obligation of the first defendant is greater than that of the second defendant because this work was done … under the supervision of Mr Casamento and it was he who was charged with the responsibility of ensuring the job was properly done before the second defendant was to be paid for it. Added to that both the defendants having created this danger … this danger was allowed to remain there … from August 1994 until October 1995”.

26    Mr Brown said in his report that the pipe was “at best” protected by 2” of the former pavement and this is confirmed by the photographs. He thought that the roller would have weighed not less than one tonne, but Mr Duff said in cross-examination that it could have been 7 tons. The photo Exhibit F shows the pipe in question and another pipe coming from the Church encased in the kerb by what appears to be new concrete. 27    The Council did not call Mr Casamento and Emoleum did not call oral evidence although it had at least one witness available. The Council did not establish when, and in what circumstances, the nearby pipe was encased in concrete at the kerb face. The facts relating to the doing of the work were peculiarly within the knowledge of the defendants. Slight evidence from the plaintiff would therefore establish a prima facie case and that case was not answered. 28    In these circumstances the Court can and should find that a 7 ton roller was used, that the pipe which had only minimal protection at the kerb face was damaged by the roller and became a source of danger. These findings establish misfeasance by the Council and negligence by its contractor and support the Judge’s verdict on liability which I would not disturb.

Emoleum’s claim to a new trial

29 Emoleum relies on the rejection of questions by its counsel during the cross-examination of Mr Duff, and the Judge’s refusal to direct Mr Brown to attend for cross-examination. His report, which became Exhibit C, was served on Emoleum’s solicitors in accordance with DCR Pt 28 r 8 in September 1996 or perhaps in September 1997. Under r 9(2), notice for this witness to attend for cross-examination had to be given at least 21 days before the trial. The plaintiff’s solicitor said that no such notice had been received, and that the question of Mr Brown’s attendance for cross-examination was not raised with him before or during the trial. He did receive a letter dated 27 February 1998 from Emoleum’s solicitors but it dealt with other matters. 30 Affidavits by Mr Mescher and his instructing solicitor were filed and both deponents were cross-examined. The solicitor said that she drafted, typed and sent a letter to the plaintiff’s solicitors on 17 February 1998 through the DX giving notice that Mr Brown was required for cross-examination. She had a copy in her file at Forbes and handed the copy to Mr Mescher during the adjournment on the last day of the trial. Mr Mescher recalls receiving the copy, but he did not tender it or show it to Mr Doherty, and it was returned with his brief after the trial. Unfortunately there is no independent evidence which supports the existence of this copy, or the despatch of the original. The solicitor’s file note of 17 February contains a draft of the letter of the 27th, but not of the missing letter. It contains a note “check RF expert”, which the solicitor said meant check request for expert, but it does not establish that such a check was made, or that a request for the expert to attend for cross-examination was ever sent. 31 Although time was short before the hearing, the letter was apparently sent through the DX, and not by fax. It is not referred to in the firm’s postage book. The solicitor’s time sheet, which should have referred to this letter, was not produced, nor was her bill of costs. She did not check to find out whether the letter was still retained on a back-up disk in the firm’s computer. Counsel’s brief which contained the copy was apparently shredded, it seems by mistake, some time after it was returned to the solicitors. 32 The conduct of the trial as disclosed in the transcript and in the evidence in this Court shows that the question of the cross-examination of Mr Brown was not raised with the Judge at any stage before the close of evidence. It was not mentioned when Exhibit C was tendered, and it was not raised at the start of the second day, a Friday, when there was a discussion about a suitable date for the further hearing which was then fixed for the following Tuesday. This of course was the appropriate time for Mr Mescher to mention the need for Mr Brown to attend for cross-examination, as there would have been plenty of time to arrange this, and he could have been called immediately the hearing resumed on the Tuesday. 33 At the start of the hearing on the Tuesday there was a discussion about the length of the case but the cross-examination of Mr Brown was not mentioned. Later that day the plaintiff closed his case without provoking any reference to the cross-examination of Mr Brown. Shortly afterwards the Council closed its case and then Emoleum went into evidence and closed its case, still without the cross-examination of Brown being mentioned. The plaintiff indicated it had no case in reply. After the short adjournment the previously quoted discussion about Mr Brown and Exhibit C occurred. Mr Mescher said he did not recall Exhibit C being tendered (although the transcript records that he was present and did not object) and added “but it is in my notes”. The transcript records Mr Cheney asking when notice to attend had been given, but he was not involved and Mr Doherty, who appeared for the plaintiff, must have asked this question. 34 Mr Mescher did not answer Mr Doherty’s question, show him the copy letter, or seek to tender it, so that there was no evidence before the Judge that the requirements for prior notice under r 9(2) had been met. Mr Mescher’s application thus became one which invoked the discretion of the Judge under r 9(2) to “otherwise order” Mr Brown to attend for cross-examination although no notice under the rule had been given. As such the application was hopeless and was not even pressed. The Judge was given no explanation for the failure to give notice, or the failure to raise the matter earlier during the trial. No indication was given of the matters which would be raised in cross-examination, and this Court still has no evidence on that topic. The intended cross-examination may have been marginal or irrelevant. Emoleum had not called expert evidence to contradict Mr Brown or non expert evidence to undermine his assumptions. No case has been made out for a new trial based on the Judge’s refusal to order Mr Brown to attend for cross-examination. 35 It is not strictly necessary to make any findings on the evidence of Mr Mescher and his instructing solicitor in this Court. However given the extraordinary conduct of the trial, only some aspects of which have been referred to, including counsel’s failure to produce or tender the copy letter, or to answer Mr Doherty’s question, and the extraordinary events outside the trial, including the shredding of the brief, the absence of any time sheet or bill of costs, and the failure to make a complete search of the firm’s computer, and other matters raised in the cross-examination which need not be rehearsed, I cannot be satisfied that the letter in question was ever sent. 36 The Judge’s decision to reject Mr Mescher’s questions to Mr Duff about the absence of complaint did not involve any error. Questions designed to establish positively that there were no complaints took Emoleum’s case no further because there was no evidence that there had been any. 37 The Judge’s last intervention occurred after Mr Mescher had established that the first step in doing the work involved sweeping the pavement before it was sprayed with an emulsion. The Judge said “unless you can establish that this has got some relevance I’m going to disallow it”, and added that he had not heard any evidence “that this was not done properly”. Mr Mescher then abandoned his cross-examination. Shortly afterwards, in the course of exchange when Mr Mescher raised the question of cross-examination of Mr Brown earlier set out, the Judge referred to Exhibit C and said:

“There’s nothing there you’d need to cross-examine about. There’s nothing there that’s in issue. I mean there’s an inescapable inference that your roller broke the pipe but I don’t know where that leads us”.

38    When the Judge said that there was no evidence that “this” had not been done properly he may well have been referring to the work generally, because there was no such evidence. Mr Mescher’s questions had not been directed to the use of the roller, or the size of the roller used. His Honour should not be understood as saying that there was no evidence that the roller had broken the pipe, because there was such evidence, and because he referred to it shortly afterwards. When he did so there was no protest from Mr Mescher. 39    His statement that “there’s nothing there you’d need to cross-examine about. There’s nothing there that’s in issue” was not strictly correct because Mr Brown had stated that a roller would have been used and that this had caused the break in the pipe. Unless this opinion was displaced by other evidence, it provided a basis for a finding of negligence. However by that time both defendants had closed their cases and there was no issue about the use of a roller and its probable weight. 40    Earlier the Judge had invited Mr Mescher to make an application to continue his cross-examination if “you can establish that this has got some relevance”. The Judge added that if there were evidence against Emoleum that “this was not done properly” Mr Mescher could cross-examine about it. 41    Even if the Judge’s statement that there was evidence that Emoleum’s roller had broken the pipe was inconsistent with his earlier statement, the Judge by this time had made his provisional views clear, and if Mr Mescher had been misled he could and should have applied for Mr Duff to be recalled for further-cross examination. No such application was made. Moreover, as previously mentioned, there is no evidence of the nature of any further cross-examination that may have been undertaken but for the Judge’s intervention. This Court should not order a new trial unless it appears “that some substantial wrong or miscarriage” has occurred (SCR Pt 51 r 23(1)). I have not been persuaded that Emoleum’s grounds for a new trial, singly or in combination, meet this requirement and its cross-appeal should therefore be dismissed.

Apportionment

42    The Council challenged the Judge’s decision that responsibility should be apportioned between the defendants, 75% to the Council, and 25% to Emoleum. With respect I cannot support an apportionment which treats the Council as three times more responsible than its contractor. Emoleum held itself out as a road surfacing specialist (AB 223). It did the work and in doing so used a roller which broke the pipe. The inference is open that it used a 7 ton roller which was too heavy for the pavement above this pipe. The inference is also open that it inspected the work after it was done and could and should have noticed that the pipe had been broken. 43    Mr Casamento also inspected the work for the Council and his was probably the last inspection. The Judge found that the defect should have been discovered on inspection and remedied, but in this respect the defendants were equally at fault. There is no evidence that this defect came to the notice of the Council at any later time before the accident. In my judgment both defendants were, for all practical purposes, equally to blame. The Council’s appeal should therefore be allowed on this point, the Judge’s apportionment set aside, and an equal apportionment substituted.

Damages

44    The Council appealed against the Judge’s assessment of damages contending that it was excessive in the light of the video and the plaintiff’s evidence after the video was shown at the trial. 45    The plaintiff did not refer in his evidence-in-chief to any sporting activities after the accident, and had not mentioned these to any of the doctors. The video lasting a couple of hours covered the weekend of 7-8 February, less than 6 weeks before the trial. The plaintiff competed in two go-kart races each day. He also admitted engaging in go-kart racing during 1996 and 1997. The Judge found that the plaintiff had attempted to mislead the Court and “was exaggerating his complaints to some extent to doctors”. He nevertheless found that the plaintiff had suffered “a back injury of some significance and a back injury that will continue to cause him some not insignificant problems over the years to come”. 46    The Judge made the following findings about the video:

“… what was presented on the movie was by no means a one way traffic and there was a number of instances that I observed where the plaintiff was seen to lower himself to fiddle with engines and that sort of thing in what I regarded as a somewhat gingerly fashion, keeping a straight back and dropping down onto his haunches and then bringing himself up from his haunches again in that somewhat awkward manner. It did not occur on every occasion certainly because on one occasion he bent to do up his shoelace”.

47    The plaintiff’s medical evidence was given in report form, the more relevant reports being those of Dr Mutton, Dr Burgess, Dr Sheehy and Dr Morgan. Dr Burgess, in his report of 9 June 1996, said:

“I feel that his level of comfort may very well improve but his disability is permanent and he is unfit for prolonged sitting, standing, stooping, constant bending or heavy lifting”.

48    Dr Mutton in his report of 11 September 1996 said:

“Mr Jones is still complaining of disabling low back and right leg pain that has prevented him from returning to work as a taxi driver”.

49    In his report of 26 November that year he said:

“Unfortunately Mr Jones is still quite disabled by back pain and has been unable to return to work as a taxi driver”.

50    His general practitioner ordered a CT examination which was conducted on 9 November 1995, shortly after the accident. The radiologist found “slight posterior and right lateral disc bulging at L5/S1”. However on 4 September 1997 Dr Sheehy reported:

“I have reviewed the recent MR lumbar scan of Mr John William Jones. It does not suggest any major nerve root compression”.

51    Finally Dr Morgan in his report of 17 February 1998, based on his examination that day, shortly after the events shown on the video, said that the plaintiff’s present complaints included “a continuing low back pain which is aggravated by sitting and driving a car for more than one and a half hours”. He referred to the CT examinations of 9 November 1995 and 26 November 1996, but not the MR lumbar scan seen by Dr Sheehy. He concluded “there is a slight posterior disc bulge at L5/S1, more marked on the left side. There is encroachment on the neural foramina, more so on the left. There is slight encroachment on the thecal sac”. He had earlier noted moderate spasm of the right erector spinae muscle. He reported that the plaintiff had suffered an L5/S1 disc prolapse as a result of his fall, and this was supported by radiological and clinical evidence. The doctor suggested that the plaintiff look at work which was less likely to aggravate his back problems and use a back support in the meantime. His Honour preferred the medical evidence tendered on behalf of the plaintiff to the contrary evidence for the defendants, and in particular accepted the evidence of Dr Burgess. 52    The Council’s medical evidence included the CT report of Dr Mott of 26 November 1996 which had not been tendered by the plaintiff. Dr Morgan quoted this in his report of 17 February except the last sentence: “Comment - Minor L5/S1 disc lesion”. Dr Edwards, in his report of 13 February 1997, recorded that the plaintiff “does not play any sport” and “denies doing any physical work at all”. He reported with details evidence of exaggeration or fabrication he found on examination, and added that this “leads me to doubt the veracity of his complaints”. He could not detect muscle spasm. He concluded:

“I am not convinced his disability is as great as he claims. I believe he should be able to work in full time work as a taxi-driver. Sitting for a prolonged period could cause some discomfort, and he may have to get out of the cab at intervals to ease this discomfort should it occur”.

53    Associate Professor Jones reported (21 January 1998) that he could detect no localised tenderness or spasm in the plaintiff’s back, and no firm signs of neurological impairment. He concluded that the plaintiff:

“has a mild degenerative back impairment which he states was asymptomatic prior to a fall on 31 October 1995. The description of the fall is such as to cause muscular strain but it would be strange for such an incident to have caused multiple disc protrusions in normal discs. I am of the view that a probability exists that a degenerative back condition existed prior to that time”.

54    He accepted that the plaintiff had continuing symptoms in his back “although it is my view that his impairment would not preclude him from working as a taxi driver for 35 hours per week”. 55    Dr Bornstein reported (4 February 1998) that there was evidence on MRI seen by Dr Sheehy of damage to the two lowest discs, it was unlikely that these were spontaneous in origin, and said that he would accept that the plaintiff has mechanical backache on this basis. He continued:

“I cannot understand the leg pain that he is experiencing. This gentleman states that he is improving over time and this would be consistent with what I would expect in terms of the natural history of the condition. Under the circumstances he therefore does appear to have a problem with this back which would restrict his ability for manual tasks. On the other hand I do not believe that it would restrict his ability to simply drive a cab a great deal”.

56    The video was played to this Court and fast forwarded when the parties agreed. It showed the plaintiff bending and squatting. It showed him standing still on a post on top of an Armco fence some height above the ground for 15 minutes and then getting down. It showed him climbing into and out of his go-kart and lifting it at one end and pushing it in front of him. He is also shown lifting an object, which he said had the weight of a sack of potatoes, and loading his trailer with miscellaneous items. He is also shown initiating some mock wrestling with a colleague which went on for some time. 57    The Judge found that the video showed the plaintiff moving “gingerly”, but that was certainly not my impression, and the plaintiff admitted in cross-examination that he was seen getting into and out of his go-kart easily. The video also showed him bending easily to do up his shoelaces. Under cross-examination the plaintiff admitted that since the accident he had been jet skiing, had water skied 5 or 8 times, and had used a chainsaw. 58    The video evidence, and the evidence of the plaintiff before and after the video was shown at the trial, incontrovertibly established that he had been doing much more than “gilding the lily to some extent” in his statements to doctors and in his evidence-in-chief. It also established that he was doing far more than “exaggerating his complaints to some extent”. The Judge’s finding that on occasions the plaintiff moved in “a somewhat gingerly fashion” is not one which I could make or support and the plaintiff himself did not claim this in his cross-examination. 59    The video and the cross-examination fully supported the opinion of Dr Edwards, the 1996 report of Dr Mott (“minor … disc lesion”), and the 1997 MR report of Dr Sheehy (“does not suggest any major nerve root compression”). It also supported the opinions of the defendant’s doctors that the plaintiff should be able to drive a taxi without too much difficulty. 60    The most favourable opinion for the plaintiff from the defendants’ side was that of Dr Bornstein, but he could not understand the leg pain the plaintiff said he was experiencing, and the video showed there was none. Dr Bornstein said “he therefore does appear to have a problem with his back”. If he had seen the film he may well have said that the plaintiff does not appear to have a problem with his back. Dr Bornstein also recorded that the plaintiff’s back was improving and that this is what he would expect. One can imagine what the doctors may have reported if they had seen the video and been provided with a history consistent with the plaintiff’s evidence in cross-examination after the video had been shown. 61    These conclusions demonstrate that the Judge’s awards for past and future economic loss and past and future general damages were grossly excessive and well outside any conceivable range that could be supported. 62    The Judge appears, with very great respect, to have adopted an unduly grudging approach to the video evidence and the cross-examination which followed, and an unduly generous approach to the plaintiff’s evidence-in-chief and the medical reports tendered in the plaintiff’s case. The proper approach is to acknowledge the wisdom of Confucius that one picture is worth a thousand words. This should then be scaled up to reflect the advantage available to a tribunal of fact from a two hour video taken of the plaintiff when he was not aware that he was under surveillance. In this area the law established by Voulis v Kozary (1975) 180 CLR 177 follows common sense. In that case the trial Judge accepted oral evidence in preference to evidence of statements made by the parties recorded in interviews on radio and television. The decision was reversed by the High Court because, as Gibbs and Stephen JJ said at 191, the latter constituted “evidence of the clearest kind” which was “open to no other interpretation”. Jacobs J said at 193 that admissions made in those interviews “must be given very great probative value” which could “only be displaced by a convincing explanation of how they came to be made”. Admissions may be made both by words and by conduct and the admissions made by the plaintiff, by the conduct recorded in the film, were no less compelling than those under consideration in Voulis v Kozary. 63    The following orders should be made:

(1) Appeal by Forbes Shire Council allowed;

(2) Set aside the judgment and orders of the District Court except as to the liability of the defendants to the plaintiff;

(3) Order that there be a new trial limited to the issue of damages;

(4) Order that the responsibility for the plaintiff’s damages be apportioned equally between the defendants;

(5) Cross-appeal by Emoleum (Australia) Limited dismissed;

(6) The cross-appellant is to pay the appellant’s and the first respondent’s costs of the hearing on 1 March 1999, and four tenths of their costs of the hearings on 26 May and 1 June, and is to pay any other costs of the appellant and the first respondent of the cross-appeal;

(7) The first respondent is to pay 90% of the appellant’s costs of the appeal incurred up to 28 February 1999 and the second respondent is to pay 10% of such costs;

(8) The first respondent is to pay one half of the appellant’s costs incurred after 1 March 1999 not otherwise provided for by these orders;

(9) The first respondent is to have a certificate under the Suitors Fund Act.

(10) The costs of the first trial are to abide the decision of the Judge presiding at the second trial.

64 POWELL JA: I agree with Handley JA. 65 GILES JA: I have had the advantage of reading the judgment of Handley JA in draft, and will not repeat his Honour’s account of the relevant evidence and the course of the trial. 66 I agree that, for the reasons given by his Honour, the Council’s appeal against the order that it indemnify Emoleum should be allowed and, subject to the significance of what occurred in relation to the cross-examination of Mr Browne and Mr Duff, the finding that the Council and Emoleum are liable to the plaintiff should not be disturbed. The qualification is important because, for reasons which will appear, I respectfully take different views from those of his Honour in relation to the cross-examination of Mr Browne and Mr Duff, and consider that what occurred in relation to the cross-examination of Mr Duff calls for a new trial on liability at least in relation to Emoleum. But for my conclusion that a new trial on liability is necessary, I would have concurred with his Honour in allowing the Council’s appeal in relation to apportionment and substituting an equal apportionment, and I agree that in any event there should be a new trial as to damages, in each case without wishing to add to his Honour’s reasons. 67 The following are the reasons for my conclusion that a new trial on liability is necessary. 68 The Judge did not refuse permission to Mr Mescher to cross-examine Mr Browne because no notice under r 9(2) had been given, or because even if notice had been given the admission of Mr Browne’s report and the time at which and circumstances in which Mr Mescher raised the matter meant that Mr Browne should not be required to attend for cross-examination. The Judge was told by Mr Mescher that attendance for cross-examination had been requested by Mr Mescher’s solicitors, and he may have gained from Mr Doherty’s “When?” that that was not common ground, but he did not explore the question of notice under r 9(2). Nor did he seek information or submissions as to the time at which or circumstances in which Mr Mescher raised the matter, or explore what Mr Mescher had in mind by way of cross-examination. The Judge did not give an opportunity for exploration, or for information or submissions. 69 Instead, the Judge peremptorily said that there was “nothing there you’d need to cross-examine about” because there was “an inescapable inference that your roller broke the pipe”. Undoubtedly on the evidence as it then stood an inference was available, but the Judge was not privy to Mr Mescher’s instructions, and whether it was an inescapable inference might have been affected by the cross-examination, for example, going to why Mr Browne’s inspection disclosed recent fracture and possible explanations of or other occasions for fracture of the pipe. The Judge refused permission to cross-examine Mr Browne because of a closed mind on the effect of Mr Browne’s report, and in that respect fell into error in the exercise of his discretion. 70 The error does not of itself mean that there must be a new trial on liability. If this Court were to conclude that, on a proper exercise of discretion, the Judge should have refused permission to cross-examine Mr Browne, the immediate significance of the error would fall away. It is therefore necessary, in my view, to reach a conclusion on whether notice under r 9(2) had been given, and so to address the evidence of the plaintiff’s solicitor and of Mr Mescher and his instructing solicitor before this Court. If notice had not been given, then the time at which and circumstances in which Mr Mescher raised the matter, as revealed in this Court, would inevitably have meant failure of the implicit application for an order that Mr Browne attend for cross-examination. 71 Like Handley JA, I am not satisfied that the letter in question was sent. It follows that, although not for the reasons given by Handley JA, the refusal of permission to cross-examine Mr Browne does not of itself impugn the plaintiff’s verdict(s). 72 The peremptory ruling of the Judge when Mr Mescher raised the matter does, however, have some remaining relevance, since it suggests that the judge had a closed mind on the effect of Mr Browne’s report even when he intervened a little earlier in the day to reject questions in the cross-examination of Mr Duff. 73 It was relevant for Mr Mescher to seek to establish through Mr Duff that the Council had not complained to Emoleum about the work. While it may not have been overly persuasive, if Mr Casamento had checked the work and there was no complaint to Emoleum, then the hypothesis that the damage to the pipe occurred after the work had been completed would have received some support - that was an hypothesis urged on this Court by the Council in its appeal. It was no answer to Mr Mescher’s endeavour that there was no evidence of complaint. Mr Mescher properly wanted to make good the different proposition that there was in fact no complaint. 74 Having been rebuffed in this endeavour, Mr Mescher was then cut short in questions about the process of resurfacing a footpath by the Judge’s fairly firm indication that he did not think it of any relevance. This was probably erroneous in itself, since a process involving rolling and the possibility of damage from the roller was clearly under consideration. The significance of the judge’s intervention, however, was more in the reason he gave: “I haven’t heard a syllable of evidence uttered against your client that this was not done properly. If such evidence turns up you can cross-examine somebody about it but there’s no evidence at the moment.” 75 This indicated that the judge did not see the evidence, which at that time included the report of Mr Browne, as showing that Emoleum had not done its work properly. Mr Mescher was told that, for that reason, he need not cross-examine about the process of resurfacing in which Emoleum had engaged. It is true that, as Handley JA has said, Mr Mescher’s questions had not been directed to the use of a roller, or the size of the roller used, but he was not given the chance to get to that part of the process, and, on the contrary, was in effect told that what Mr Browne had said about the fracture of the pipe probably from being run over by the roller in the recent resurfacing meant nothing against Emoleum. Yet the Judge must have thought, as he said a little later in the day, that there was “an inescapable inference that your roller broke the pipe”. 76 The message in the reason given by the Judge for terminating this line of cross-examination was quite misleading, and was objectively incorrect in that what Mr Browne had said about the fracture of the pipe did provide a case against Emoleum. With respect to Handley JA, in my view there was error by the Judge amounting to a substantial wrong or miscarriage. The Judge’s intervention in the cross-examination of Mr Duff meant in a practical sense that Mr Mescher was precluded from endeavouring to deal with the ground on which the plaintiff in due course succeeded on liability, and there was a denial of procedural fairness: cf Stead v State Government Insurance Commission (1986) 161 CLR 141. 77 It may be said that Mr Mescher should have been more forthright, should have queried what the Judge said and tried to continue because the Judge might have come to see the evidence differently, or should have tried to return to cross-examination of Mr Duff after the Judge had spoken of an inescapable inference. Hindsight is wonderful, but the realities of the trial must not be forgotten. The Judge’s interventions in the cross-examination of Mr Duff had been repeated and forceful (“I’m sorry if I appear aggressive about it”). When the Judge spoke of an inescapable inference he was equally forceful, and his ruling and what he said would have given no encouragement to an application to have Mr Duff recalled for further cross-examination. The Judge had not really held that out to Mr Mescher, saying only that if evidence of improper work turned up “you can cross-examine somebody about it”. Counsel should be vigilant and appropriately fearless in the interests of the parties they represent, but they do not have to seek to persuade a judge from a concluded and immovable, albeit erroneous, position. In the circumstances, while Mr Mescher could have done more I do not think that the Judge’s error should be passed over on the ground that there was an opportunity to overcome it which was not taken up. 78 Hence in my view the appeal of Emoleum should be upheld, and there should be a new trial going to its liability as well as to damages. The Council did not adopt this ground of Emoleum’s appeal as a ground of its appeal, presumably because it had not been prevented from leading evidence from Mr Duff and so had not been denied procedural fairness. It would be perhaps incongruous if the Council’s liability remained, but that of Emoleum was overturned, when Mr Mescher’s cross-examination of Mr Duff might have brought out evidence which would have been relevant to the Council’s position as well as that of Emoleum. Since my view in relation to the cross-examination of Mr Browne and Mr Duff is a minority view, I need not address its impact (if any) on the verdict against the Council. For the same reason, when I have indicated my agreement with Handley JA in other respects there is no point in formulating orders reflecting my partial divergence from his Honour’s conclusions.
******