Glover v Australian Ultra Concrete Floors Pty Ltd
[2003] NSWCA 80
•24 April 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80
FILE NUMBER(S):
40050/01
HEARING DATE(S): 11/04/03
JUDGMENT DATE: 24/04/2003
PARTIES:
David John Glover (Appellant)
Australian Ultra Concrete Floors Pty Limited (Respondent)
JUDGMENT OF: Sheller JA Hodgson JA Ipp JA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): N213/95
LOWER COURT JUDICIAL OFFICER: Newman J
COUNSEL:
In Person (Appellant)
W K Dodd SC/H M Silvester (Respondent)
SOLICITORS:
In Person (Appellant)
Sparke Helmore (Respondent)
CATCHWORDS:
PRACTICE AND PROCEDURE - Admission of fresh evidence - Supreme Court Act 1970, ss 75A(8) and 75A(9) - Failure to plead a positive case - The surprise rule. D
LEGISLATION CITED:
Supreme Court Act 1970, ss 75A(8), 75A(9)
Workers Compensation Act 1987
DECISION:
(1) The evidence contained in the affidavits which were identified and taken as read in Court on 11 April 2003 should be admitted in evidence on the appeal (2) On the basis of that evidence the appeal should be allowed (3) The verdict below be set aside and a new trial ordered (4) Costs of the first trial and of the appeal will be in the discretion of the judge hearing the new trial.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40050/01
N 213/95SHELLER JA
HODGSON JA
IPP JA24 April 2003
GLOVER V AUSTRALIAN ULTRA CONCRETE FLOORS PTY LIMITED
FACTS
The appellant brought a claim for damages for personal injuries against the respondent, his former employee. He asserted that on 1 May 1994 he was injured when he slipped on concrete slurry and fell on the concrete floor of the respondent’s factory while assisting in the manufacture of concrete beams. It was the appellant’s contention that the respondent was negligent in allowing the concrete slurry to remain on the concrete floor where he was working.
A significant challenge to the appellant’s version of how he sustained his injury arose when counsel for the respondent put to the appellant in cross-examination that, the appellant had told Mr Higgins (a director of the respondent) that the appellant’s wife had pushed him over. The appellant denied this. In Mr Higgins’ examination in chief, Mr Higgins stated that the appellant had told him that he was limping as a result of his wife pushing him over. Mr Higgins was not cross-examined about this evidence.
Another challenge related to the evidence of Mr Thompson. The appellant testified that Mr Thompson (an employee of the respondent) was working nearby when the accident occurred and that he told Mr Thompson that he’d hurt his back. Mr Thompson, in evidence in chief, stated that he had not seen the appellant slip or fall, nor had he seen signs in the slurry of a person having fallen. His Honour remarked that Mr Thompson had stated he was unaware that the appellant had an accident on 1 May 1994 and maintained this position in cross-examination.
His Honour held that the appellant had “failed to establish that the accident occurred as he said it did” and dismissed the appellant’s claim. The appellant appealed against this order. When the appeal commenced, the appellant applied for leave to adduce the evidence of several witnesses.
HELD per Ipp JA (Sheller JA and Hodgson JA agreeing)
Findings of the trial judge
With regard to Mr Thompson’s evidence, Newman J made two errors: Mr Thompson had not testified that he was unaware of the alleged accident and was not challenged in cross-examination as to whether the appellant had told him of the injury.
The application to lead fresh evidence
Pursuant to s 75A(8) of the Supreme Court Act 1970, special grounds existed for the admission of evidence contained in an affidavit by the appellant’s former wife, Mrs Glover, which effectively rebutted Mr Higgins’ evidence that the appellant’s injuries were caused by his wife pushing him over. The evidence satisfied the three conditions that need to be met before fresh evidence can be admitted: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 per Clark JA.
(a)The evidence could not have been obtained with reasonable diligence for use at the trial for the following reasons. First, Mrs Glover could not be subpoenaed as she was living in England. Second, due to a stressful divorce from the appellant, Mrs Glover was positively obstructive. Third, the respondent’s pleadings (in the form of a non-admission) would have indicated to the appellant that the manner in which his injury was sustained would not be contested with any vigour. The respondent’s positive case at trial that the appellant lied about the manner in which he was injured was tantamount to alleging fraud and, although it is not incumbent upon the respondent to plead fraud: Jazairy v Najjar (1998) 27 MVR 498; Ghazal v Government Insurance Office (NSW) (1992) 29 NSWLR 336, the failure to plead the positive case was such as to take the appellant by surprise when raised in cross-examination. The appellant’s subsequent failure to seek an adjournment so as to obtain Mrs Glover’s evidence did not demonstrate any lack of diligence on his part, because Mrs Glover’s intransigent attitude toward the appellant meant that an adjournment to call her would have been futile and costly; and
(b)The evidence, when taken together with the evidence of Mr Swan, was such that there was a high degree of probability that it would have led to a different verdict; and
(c) The evidence was credible.
Evidence contained in an affidavit by the appellant, dated 21 March 2003, concerning a conversation between himself and Mr Swan (an employee of the respondent) was admitted under s 75A(9) of the Supreme Court Act as a matter occurring after the date of the trial. The approach set down in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296 was followed. The evidence could not have been obtained with reasonable diligence for use at the trial, because the appellant could not have known about the conversation at the relevant time (the conversation occurred after judgment was delivered). The evidence was credible and probative to a high degree, especially when coupled with Mrs Glover’s evidence.
Pursuant to s 75A(8) of the Supreme Court Act, special grounds existed for the admission of evidence from Mr Clay (an employee of the respondent) that the appellant had told him that he had slipped in the slurry and hurt his back. The evidence met the conditions set down in Akins v National Australia Bank. A subpoena in respect of Mr Clay was issued, but service was unsuccessful because Mr Clay could not be found at the address given. In combination with the state of the pleadings, due diligence did not require the appellant to take further steps to find Mr Clay. Mr Clay’s evidence was credible and probative to a high degree, particularly when considered together with the evidence of Mr Swan and Mrs Glover.
Pursuant to s 75A(8) of the Supreme Court Act, special grounds existed for the admission of evidence from Mr Carter (an employee of the respondent) relating to the accident and Mr Thompson’s awareness of the accident. The evidence met the conditions set out in Akins v National Australia Bank. Although the appellant should have known prior to the trial that Mr Carter could testify about the accident, it was not clear whether the appellant had any discussion with Mr Carter prior to the trial through which he might have learnt of Mr Carter’s evidence concerning Mr Thompson’s awareness of the accident. Further, the appellant had attempted to find Mr Carter, but could not. In conjunction with the state of the pleadings, it is reasonably arguable that the evidence could not have been obtained with due diligence for use at the trial. The evidence, when taken with that of Mrs Glover, Mr Swan and Mr Clay was probative and nothing suggests that it was not credible.
Pursuant to s 75A(8) of the Supreme Court Act 1970, special grounds existed for the admission of evidence from Mr White (a director of the respondent), who stated, in an affidavit, that Mr Higgins had told him that the appellant had injured his back at work. Strictly speaking the appellant’s explanation as to why Mr White did not give evidence contained in his affidavit at the trial did not comply with the conditions set down in Akins v National Australia Bank. However, as the appeal should in any event succeed, it would serve no purpose in not admitting Mr White’s testimony.
ORDERS
The evidence contained in the affidavits, which were identified and taken as read in Court on 11 April 2003, should be admitted in evidence on the appeal.
On the basis of that evidence the appeal should be allowed.
The verdict below be set aside and a new trial ordered.
Costs of the first trial and of the appeal will be in the discretion of the judge hearing the new trial.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40050/01
N 213/95SHELLER JA
HODGSON JA
IPP JAThursday 24 April 2003
DAVID JOHN GLOVER v ULTRA CONCRETE FLOORS PTY LIMITED
Judgment
SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by Ipp JA. His Honour’s reasons explain why the Court allowed the appeal and ordered that the verdict in favour of the respondent be set aside and that there should be a new trial. I agree with what Ipp JA has said.
HODGSON JA: I agree with Ipp JA.
IPP JA:
The dismissal of the appellant’s claim at trial and the orders made on appeal
The appellant brought a claim for damages for personal injuries against the respondent, his former employer. The appellant asserted that on 1 May 1994 he was injured in an accident that occurred while he was at work. He alleged that he slipped and fell on the concrete floor of the respondent’s factory while assisting in the manufacture of concrete beams. He contended that his injuries were caused by the respondent’s negligence or breach of statutory duty.
The appellant’s claim was heard before Newman J in the Supreme Court. His Honour found that the appellant had “failed to establish that the accident occurred as he said it did”. He dismissed the appellant’s claim.
The appellant appealed against the order dismissing his claim. Although he had been represented by senior counsel at the trial, he was unrepresented on the appeal.
When the appeal commenced, the appellant applied for leave to adduce the evidence of several witnesses who had not testified at the trial and additional evidence from Mr Julian White, a witness who did testify. At the conclusion of argument the Court ordered that certain of the evidence, the subject of the application, be admitted in the appeal. The Court held that, on the basis of that evidence, the appeal would be allowed and ordered that the verdict brought down by Newman J in favour of the respondent be set aside and that there should be a new trial. The Court further ordered that the costs of the trial and the costs of the appeal would be in the discretion of the judge hearing the new trial. The Court indicated that it would give reasons for its decision at a later stage. I set out below my reasons for joining in the decision of the Court to make these orders.
The appellant’s version of the accident
The respondent manufactured pre-stressed reinforced concrete floor beams. The appellant was employed by the respondent as its factory manager.
At the trial, the appellant testified that he was injured while working on a machine called a slide former. The slide former was mounted on rails along which it moved while producing concrete floor joists. Cement mix passed through the machine and was extruded underneath in such a way as to form concrete beams.
The working of the slide former was described by Newman J as follows:
“9.The machine moves along an area which is some 110 to 120 metres long taking 2 to 2 ½ hours to complete its journey. Having completed its journey and having extruded concrete so beams are formed, is then lifted by a crane on to a parallel bed and the process is repeated as the machine travels in the opposite direction.
10.Between the two parallel beds exists an area which was variously described in the evidence some times as a channel but in fact appears to be merely a concrete divide. The beams which are created by the process are cut into required sizes which cause the concrete slurry to enter the divided area. As the machine moves along it is necessary for a person to clean the beams as they are created by using a steel trowel.
11.After the beam is so cleaned and as the machine continues its progress it is necessary for a plastic cover to be pulled over the cleaned beams so, as I understand the evidence, to ensure that they remain clean. In order to carry out the cleaning process of the beams it is necessary for the person performing that task to stand in the divided area between the two beds.”
It was the appellant’s case at trial that on 1 May 1994 a Mr Scott Thompson was driving the slide former and he, the appellant, was standing in the divided area between the two beds, cleaning the freshly made concrete beams and covering them with plastic covers. At the time, there was concrete slurry on the floor of the divide. The appellant slipped and fell backwards as he turned to pull a plastic cover over some beams. He asserted that the divide had been made slippery by the concrete slurry.
Essentially, it was the appellant’s contention that the respondent was negligent in allowing the slurry to remain on the concrete floor while he was working there.
After falling, the appellant felt immediate pain in his lower back and right leg. He went home to change his trousers which had become wet. He returned to work and continued working although the pain in his back and right leg became worse. Eventually he saw a general practitioner who had x-rays taken and referred him to an orthopaedic surgeon, Professor Ghabrial. On 27 May 1994, when seen by Professor Ghabrial, the appellant’s symptoms were quite severe. Professor Ghabrial recommended surgery and on 8 June 1994 excised a prolapsed and sequestrated disc.
The respondent’s principal challenges to the appellant’s case
At trial the plaintiff’s evidence as to the accident, the respondent’s conduct, his competence as a manager, and the quantum of his damages generally, were challenged by the respondent.
Two significant challenges to the appellant’s version of how he came to be injured were based on the evidence of Mr Spencer Higgins, a director of the respondent, and Mr Scott Thompson, an employee of the respondent.
The challenge based on the evidence of Mr Higgins first became manifest in the course of the appellant’s cross-examination. Counsel for the respondent put to the appellant that Mr Higgins had seen him limping and had then inquired how that had come about. Counsel asked the appellant whether he had answered Mr Higgins by saying that his wife had pushed him over. The appellant replied in the negative.
Mr Higgins, in his examination in chief, said that he had visited the respondent’s factory on 5 May 1994. There he saw the appellant and noticed that he was limping. He said he asked the appellant what had happened to him and the appellant replied that his wife had pushed him over. Mr Higgins was not cross-examined about this evidence.
Of course, the proposition that the appellant was injured when his wife pushed him was entirely inconsistent with the version propounded by him.
The challenge based on Mr Thompson’s evidence was less direct.
In a claim form, completed by the appellant, he stated that Mr Thompson was a witness to the accident. The appellant testified that Mr Thompson was working on the front of the slide former when he slipped and fell. He did not testify that Mr Thompson had actually seen him slip and fall.
In the course of the appellant’s cross-examination the following exchange relating to Mr Thompson’s knowledge of the incident occurred:
“Q. Did you ever ask Scott Thompson if he saw you slip or stumble or fall?
A. I didn’t ask him, I told him. As soon as I got up from the floor I told him I had hurt my back and I was going down to get someone else to help on the machine.
Q. I put to you that you never said anything to Scott Thompson on 1 May about hurting your back or about slipping over.
A. Yes I did, yes.”
In his evidence in chief Mr Thompson said that he had not seen Mr Glover slip or fall on the day in question. He did not, however, give any evidence in chief to refute the appellant’s testimony that he, the appellant, had told Mr Thompson as soon as he had got up from the floor that he had hurt his back. Understandably, senior counsel for the appellant did not cross-examine Mr Thompson on the latter issue.
When cross-examined, Mr Thompson said that at the position where he was standing he would not have been able to see the appellant fall, but would have seen “the damage that he had caused to the product”. His evidence, in essence, was that he had seen no signs in the slurry of a person having fallen.
The respondent submitted that on the basis of Mr Thompson’s evidence it was unlikely that the accident had occurred as the appellant alleged.
The findings of the trial judge
Newman J observed that the respondent challenged, on a number of fronts, the appellant’s evidence as to the accident. His Honour then proceeded to discuss these challenges.
The first of the challenges to which his Honour made reference was the fact that a diary kept by the appellant did not make any mention of him suffering injury. The appellant’s explanation for this was that he did not think it necessary to record matters relating to himself. Nevertheless on 20 April 1994 he had made an entry referring to the fact that he had gone home sick. For my part, I would not regard the absence of any diary entry relating to the appellant’s injuries as significant, and I do not think that Newman J attached particular weight to this.
The second challenge was based on the evidence of Mr Higgins to the effect that the appellant told him that his limping was caused by his wife pushing him over. Newman J remarked that Mr Higgins had deposed that, in this context, the appellant had made no mention of hurting his back at work. I understood this to mean that Newman J inferred that, according to Mr Higgins’ account of what the appellant said to him, the appellant had been injured by his wife pushing him over, and this had not occurred at work. In any event, Mr Higgins’ account of the appellant’s explanation for his injury was entirely different to the case presented by the appellant.
The third challenge was described by Newman J as follows:
“Mr Scott Thompson stated that he was unaware that the plaintiff had an accident on Sunday, 1 May. The plaintiff, in chief, had deposed that he had told Mr Thompson of the injury. Mr Thompson, when challenged in cross-examination, maintained his position”.
This observation by Newman J contains two errors. Firstly, Mr Thompson had not testified that “he was unaware that the plaintiff had an accident on Sunday, 1 May”. Mr Thompson had merely stated that he had not seen the appellant slip or fall. Secondly, Mr Thompson was not challenged in cross-examination as to whether the appellant had told him of the injury. Accordingly, his Honour erred in saying that, when Mr Thompson was challenged in cross-examination on this issue, he maintained his position.
Apart from these three challenges, Newman J observed:
“I should add that there were some other minor challenges to the plaintiff’s veracity in relation to the subject accident.”
These included the inconsistencies in the histories given by the medical practitioners to which I have made reference above.
Newman J then stated:
“Excluding the third matter of challenge I am of the view that any of the matters standing alone would not, of themselves, cause me sufficient doubt to conclude that the plaintiff had not established his case on a balance of probabilities.
However, when taken in combination I find myself driven to the conclusion that doubt created by these matters is such that I am not satisfied that the plaintiff has, on a balance of probabilities, established his case.”
The “third matter of challenge” concerned Mr Thompson’s statement he had not seen the appellant slip or fall. It was not entirely clear to me whether his Honour considered this challenge to be decisive against the appellant, but it seems from the opening words of the passage quoted in the preceding paragraph that that was his Honour’s view.
The learned judge proceeded:
“However, the evidence of Messrs Higgins and Thompson when viewed in combination with the other evidence to which I have referred, casts such doubt on the plaintiff’s account of the subject accident as to prove fatal to his case.
I accept Messrs Higgins and Thompson as being truthful and reliable witnesses and wherever their testimony is in conflict with that of the plaintiff, I prefer their evidence to that of the plaintiff. Such is the doubt I entertain that I find that the plaintiff has, on a balance of probabilities, failed to establish that the accident occurs as he said it did.
It follows that the plaintiff’s claim must then fail and there must be a judgment for the defendant”.
It is apparent from the observations of the learned judge which I have quoted above that he rested his decision substantially on the testimony of Messrs Higgins and Thompson which he regarded as reliable and which he preferred to that of the appellant. The other matters relied on by his Honour were significantly less important to his decision, although they played a part in it.
The application to lead fresh evidence
I now turn to the appellant’s application to lead fresh evidence. The appellant sought to tender the evidence of many witnesses. On a first reading of the material, without any assistance from the appellant himself, it seemed that an extensive part of it related, at best, to issues of credibility that would not easily lead this Court to conclude that the decision of the trial judge should be overturned. However, the Court identified particular aspects of the evidence of certain witnesses that did seem to have an important bearing on the issues raised by the appeal. When the appeal commenced, the presiding judge explained to the parties that the Court, initially, wished to hear argument only in relation to the evidence it had so identified, and argument proceeded in relation to that evidence alone. Eventually the Court admitted the evidence of the witnesses it had so identified and did not give any further consideration to the evidence of the other witnesses (the latter evidence being held to be unnecessary for the decision of the Court).
The admission of fresh evidence: general principles
By s 75A(8) of the Supreme Court Act 1970 the Court shall not receive evidence as to matters that occurred before the trial except on special grounds. In regard to what “special grounds” may comprise, Clarke JA (with whom Sheller JA and Powell JA agreed) said in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160:
“Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are:
(1)It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(2)The evidence must be such that there must be a high degree of probability that there would be a different verdict;
(3) The evidence must be credible.
There is a general discretion under s 75A(9) to admit evidence as to matters occurring after the date of the trial, but this discretion is not at large and regard must be had “to the context in which [the discretion] arises and also to the general public interest in the finality of litigation” per Gleeson CJ in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296.
The fresh evidence concerning Mr Higgins
The evidence admitted was directed at the testimony of Messrs Higgins and Thompson. I shall first deal with that which concerned Mr Higgins.
The appellant tendered an affidavit dated 3 August 2001 by his former wife, Mrs Veronica Glover. In that affidavit she stated that on 1 May 1994 at about 6.00 am she and the appellant attended at the factory. At that stage, according to her, the appellant was fit and well. At about 9.30 am that morning, she noticed the appellant in a sitting position and a few minutes later he came up to her holding his back. His trousers were wet with concrete slurry. She said that she then “realised what had happened”, that is, the appellant had been injured when falling into the slurry. She arranged for one of the men to take over his job and she took the appellant home. She returned a few minutes later and spoke to Mr Thompson. Mr Thompson asked her how the appellant was and she replied, “He should be OK, he’s badly strained his back”. Mrs Glover stated that she never pushed the appellant and hurt his back, whether at home or at work.
Mrs Glover’s testimony, in effect, rebutted the inference that arose from Mr Higgins’ evidence, namely, that the appellant’s injuries had been caused by his wife pushing him over.
In her affidavit, Mrs Glover explained why she had not given evidence at the trial. She stated:
“During the last two years [the appellant] and I have gone through an extremely stressing and hard fought divorce which has just culminated in our marriage annulment or decree absolute in February 2001.
From around February 1999 I refused to have anything to do with David and would not help him with his compensation claim in Australia. All things were left to my solicitors to sort out.
…
Since finding out about the result of the Court’s judgment in Australia and obtaining the decree absolute to our marriage I have reconsidered my position and am now prepared to help him present the real facts in the matters before the Court.”
The appellant also sought to tender an affidavit by his former solicitor, Mr A E Noronha. In that affidavit Mr Noronha stated that, prior to the trial, the appellant instructed him that due to the break up of his marriage, Mrs Glover had no intention of giving evidence on his behalf. As Mrs Glover was overseas, Mr Noronha was not in a position to subpoena her. Mr Noronha explained further that Mrs Glover had obtained an injunction against Mr Glover using his funds and would not release sufficient funds for him to attend the trial. Eventually, Mr Glover was able to raise sufficient money to come to Australia and, according to Mr Noronha, “we were able to have urgent conferences on the Monday morning just prior to the hearing to prepare the case”. He said that Mrs Glover refused to assist the appellant in any way.
The issues arising in regard to the admission of the evidence of Mrs Glover and Mr Noronha
Newman J attached significant importance to the evidence of Mr Higgins that the appellant had told him that he had been pushed over by his wife. Had the testimony of Mrs Glover been before him and had he accepted that evidence it is likely, in my opinion, that his Honour would not have dismissed the appellant’s claim. In my view, Mrs Glover’s evidence, when viewed alone, came close to meeting the second test for the admission of fresh evidence laid down by Clarke JA in Akins v National Australia Bank. For the reasons that I give later, I concluded that it was indeed highly probable that Mrs Glover’s evidence - when taken together with the evidence of Mr Allen Swan (referred to below) - would have led to a different verdict.
There was nothing that suggested that the evidence of Mrs Glover was not appropriately credible and I considered that it met the third test for admission laid down in Akins v National Australia Bank.
The substantial argument on appeal concerning the evidence of Mrs Glover revolved around the first test in Akins v National Australia Bank, namely, whether the appellant had shown that the evidence could not have been obtained with reasonable diligence for use at the trial.
Reasonable diligence and the evidence of Mrs Glover
Mr Noronha, in his affidavit, described the difficulties experienced by the appellant in obtaining any assistance from Mrs Glover prior to the trial. She was living in England, she could not be subpoenaed, she refused to assist in any way, and was positively obstructive. Mrs Glover confirmed these matters.
In my opinion, on these grounds alone, it was shown that Mrs Glover’s evidence could not have been obtained with reasonable diligence prior to the commencement of the trial.
Mr Dodd SC, senior counsel for the respondent, suggested that the appellant could have sought an adjournment as soon as he realised that Mr Higgins was going to testify that the appellant had told him that Mrs Glover had pushed him. This should have occurred when this was put to the appellant in cross-examination. The appellant did not then seek an adjournment to be able to call Mrs Glover.
In my opinion, however, the appellant’s omission to seek an adjournment for the purposes of calling Mrs Glover was perfectly understandable. At that stage, Mrs Glover had adopted an intransigent attitude to him and refused to assist or co-operate in any way. An adjournment for the purposes of obtaining Mrs Glover’s evidence would have been futile and costly.
The non-admission in the respondent’s defence
My conclusion that there was no failure to exercise reasonable diligence in the omission to call Mrs Glover as a witness at the trial was reinforced on another ground. This other ground concerned the state of the pleadings and, in particular, the non-admission plea by which the respondent answered the appellant’s detailed allegations as to how the accident occurred. This “non-admission” ground applied to all the witnesses identified by the court as providing evidence that was potentially relevant in the appeal. Although I considered that, irrespective of this ground, Mrs Glover’s evidence should be admitted, it is convenient to deal with the non-admission plea at this stage.
The appellant pleaded in his statement of claim that the accident occurred on 1 May 1994, at approximately 10.30 am, when he slipped on the slurry on the concrete floor while assisting in the manufacture of concrete beams. The respondent’s defence stated merely that it did not admit the allegations in question.
The respondent denied the allegations of negligence and, in the alternative, pleaded contributory negligence on the part of the appellant. The respondent did not admit the appellant’s allegations as to the injuries suffered by him.
The respondent expressly raised payments it had made to the appellant under the Workers Compensation Act 1987. It alleged:
“The defendant says that payments by way of compensation pursuant to the provisions of the Workers Compensation Act, have been made by the defendant to, for and on behalf of the plaintiff and the defendant raises these payments and any further payments which it may make to, for or on behalf of the plaintiff pursuant to the Act as a defence to this action”.
The general impression the defence gave was that the main thrust of the respondent’s resistance at trial was to be the denial of the allegations of negligence and a challenge to the extent of the damages suffered by the appellant. The non-admission of the accident, coupled with the assertion that worker’s compensation had been paid, would have indicated to the appellant, at least prior to the commencement of the trial, that the proof that the accident occurred as asserted by him would largely be a formality and would not be contested with any vigour.
The respondent’s case at trial, however, was a different kettle of fish. Mr Higgins’ testimony that the appellant told him that he had been pushed by his wife and did not say to him that he had hurt his back at work, meant, if accepted, that the appellant was giving an entirely false version as to how he came to be injured. Mr Thompson’s evidence, in substance, also was to the effect that the appellant was not injured as he had alleged.
Thus, the respondent’s case at trial was that the appellant lied when he said that he had been injured by slipping and falling at work. This was tantamount to alleging fraud.
It was not incumbent upon the respondent to plead fraud in answer to the appellant’s claim: Jazairy v Najjar (1998) 27 MVR 498 at 506 to 508; Ghazal v Government Insurance Office(NSW) (1992) 29 NSWLR 336 at 347. But as Mason P (with whom Sheller JA and Powell JA agreed) pointed out in Jazairy v Najjar at 506, there is a duty, in fairness, to confront a plaintiff with such a contention before it is proper to rely upon it. In Ghazal v Government Insurance Office (NSW) Mahoney JA at 347 emphasised the necessity to make clear at an appropriate time that an allegation of the nature of fraud is to be made and that it will be a real issue at the trial.
I accept that in the cross-examination of the appellant it was made clear that the question whether the appellant was injured at work was going to be a serious issue at the trial.
It is also to be noted that this is not a case where it is said that the judge erred in failing to accept a plaintiff’s version in circumstances where an allegation of fraud, or conduct akin to fraud, was not made clear at an appropriate stage (as in Ghazal and Jazairy v Najjar). The failure to plead the positive case asserted at the trial was, however, contrary to the surprise rule and goes a long way, on its own, in providing a satisfactory explanation for the appellant’s failure to call more witnesses to bolster his case that an accident occurred as alleged by him.
The ambush theory of litigation was given its quietus by Heydon JA in Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116. His Honour gave unqualified approval to the statement of Allsop J in White v Overland [2001] FCA 1333 at [4] that:
“[I]t should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are”.
Heydon JA at [127] observed that it is no longer open to practitioners, even practitioners in personal injury work, “to maintain poker faces, to keep their guards up at all times, and to let opponents who are proceeding in ignorance continue in that course”. His Honour stated further at [128] that:
“[E]ven in personal injury litigation the ambush theory of life has been abandoned in District Court trials as much as in Supreme Court trials”.
Heydon JA presciently warned at [129] of the prospect of ambushed parties seeking to tender further evidence.
The “cards on the table” approach is now common practice in many jurisdictions: See Boyes v Colins (2000) 23 WAR 123 at 143 to 144; Southwell v Tomomoto (1992) 109 FLR 12 at 17; Khan v Armaguard Limited [1994] 1 WLR 1204 at 1209,. The public interest in requiring the full disclosure of a party’s case before trial is recognised by Pt 15 r 13 which requires parties to plead specifically any matter which, if not so pleaded, may take the other party by surprise.
In my opinion, the respondent’s non-admission plea in answer to the appellant’s detailed description of the accident contained in the statement of claim, together with reliance by the respondent on the workers compensation payments made by it, would have resulted in the appellant being taken by surprise when, during the course of the trial, it was first made plain that the respondent was seeking to make an affirmative case in regard to the question whether the appellant was injured by an accident at work in the manner asserted by him.
In Crook v Derbyshire [1961] 1 WLR 1360 a plaintiff sustained injuries as a result of a fall which she alleged occurred because of the insecurity of a hand rail. At the date of the trial the hand rail was in a secure position. The plaintiff and other witnesses alleged that a board, securing the hand rail, had been affixed after the accident. This was denied by the defendant and two other witnesses. The last witness for the defence was the previous occupier of the premises who was positive that the board was in position at the date of the accident because he had instructed a firm of joiners a few years previously to insert it. The joiners were not called at the trial. The trial judge accepted the evidence for the defence and dismissed the plaintiff’s action. Subsequently the plaintiff’s solicitors ascertained from the joiners that they had not inserted the board at any time. The plaintiff’s statement of claim had asserted that the hand rail had not been safely affixed. The defence amounted to a general traverse of the allegations of negligence. The fact that no real indication had been given to the plaintiff that the date of the repair work to the hand rail was material weighed with Ormerod LJ in concluding (at 1365) that it did not appear to him “that there was anything unreasonable in the conduct of the plaintiff or those advising her in not searching so diligently that this evidence might possibly have been discovered”. Harman LJ (at 1366) and Pearson LJ (at 1368) were of a similar mind.
In my view, having regard to the state of the pleadings, due diligence did not require the appellant to go further, prior to him being cross-examined, to attempt to obtain the evidence of Mrs Glover. Having regard to the pressures on the appellant, both financial and otherwise, to complete the trial once it had commenced, and having regard to the apparently insuperable problems of obtaining any co-operation from Mrs Glover, I did not regard his failure to seek an adjournment for the purposes of obtaining her evidence as demonstrating any lack of diligence on his part.
In the circumstances, I concluded that special grounds existed for the admission of Mrs Glover’s evidence.
Reasonable diligence and the evidence of Mr Swan
The appellant also sought to lead new evidence bearing upon the trial judge’s (erroneous) finding that Mr Thompson had stated that he was unaware that the appellant had had an accident on 1 May 1994.
The appellant tendered an affidavit by himself, dated 21 March 2003, in which he referred to the conversation that he had had with Mr Allen Swan, a former employee of the respondent. According to this affidavit Mr Swan was away from the respondent’s factory from 25 April to 17 May 1994 as he was then on three weeks holiday. Thus, he was not at work when the appellant had his accident. The appellant said that he therefore did not think it necessary to call Mr Swan as a witness at the trial.
On 3 October 2000 (after Newman J had delivered his judgment) the appellant met Mr Swan by chance. The appellant told Mr Swan that Mr Thompson had testified that he had not seen the accident. According to the appellant Mr Swan then replied, “can you remember me coming around to visit you just after the accident? Well it was Scott Thompson who I’d bumped into at the shops who told me how your accident happened”.
Mr Swan refused to provide the appellant with an affidavit setting out his account of his conversation with Mr Thompson as recounted to the appellant. The appellant explained to Mr Swan that he could subpoena him to testify and Mr Swan replied that that would be preferable.
Mr Dodd referred the Court to a memorandum of advice dated 10 September 2001 by junior counsel then acting for the appellant in which he referred to an affidavit by the appellant in which the following was stated:
“At the time of the hearing of my case before his Honour Judge Newman J despite my best efforts I was unable to locate either Mr Allen Swan or Mr Craig Carter”.
I have not been able to find an affidavit by the appellant in which this was said. However, even if the appellant did attempt to locate Mr Swan, it is apparent that it could not have been for the purposes of finding out what Mr Thompson had said to him as the appellant could not have known about the conversation on 3 October 2000, that having taken place after judgment had been delivered.
Accordingly, the admission of the evidence relating to Mr Swan’s conversation with Mr Thompson fell to be decided under s 75A(9) of the Supreme Court Act, as being a matter occurring after the date of the trial. The approach in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296 applied to this evidence.
The trial judge’s acceptance of Mr Thompson as a credible witness was a significant lynch pin of his decision. As I have mentioned, his Honour’s findings regarding Mr Thompson contained two patent errors. Particularly, when regard is had to these errors, the evidence concerning the conversation on 3 October 2000 undermining Mr Thompson’s version of events would be likely to have considerable probative effect.
It is also to be noted that, on Mrs Glover’s evidence, Mr Thompson knew on the morning of 1 May 1994 that the appellant had been injured at work by falling into the slurry while working in the divide. The probative value of the evidence said to be available from Mr Swan would be reinforced by Mrs Glover’s testimony.
Further, there was nothing to suggest that the evidence said to be available from Mr Swan was not credible.
For those reasons I concluded that the appellant’s evidence as to the testimony that Mr Swan would give about the conversation on 3 October should be admitted.
The effect of admitting the evidence of Mrs Glover and that relating to Mr Swan
Once the evidence of Mrs Glover and that relating to Mr Swan was admitted as fresh evidence, the result of the appeal was inevitable. If their evidence were to be believed by a trial judge (and as I have said, there was nothing to suggest that their evidence was not credible), the likelihood of a finding being made that the appellant was injured as he alleged would be strong.
Accordingly, I was of the opinion that on the basis of their evidence alone, the appeal should be upheld.
The Court, however, ordered that the evidence of the other witnesses identified by it should also be admitted and my reasons for that decision follow.
The evidence of Mr Clay
The Court identified three other witnesses whose evidence was particularly relevant to the issues raised in the appeal. These were Mr Aaron Clay, Mr Craig Carter and Mr Julian White.
Mr Clay was an employee of the respondent at the time of the appellant’s accident. On 1 May 1994 Mr Clay commenced work at about 5.45 am and during the course of the morning received instructions from the appellant as to work he was doing. According to Mr Clay, at that time there was nothing physically wrong with the appellant who appeared to be fit and well. At about 9.30 am Mr Clay saw the appellant limping. He could see that the appellant had been hurt and was in a lot of pain. The appellant told him that he had slipped in the slurry and hurt his back.
According to Mr Noronha, prior to the trial he issued a subpoena in respect of Mr Clay but the service was unsuccessful. Mr Clay could not be found at the address given. Mr Noronha stated that he could not locate Mr Clay prior to the conclusion of the trial.
In the circumstances, having regard to the attempts made by the appellant to find Mr Clay, and particularly the non-admission in the respondent’s defence, I was of the view that, prior to the trial, due diligence did not require the appellant to take further steps to find Mr Clay.
Mr Dodd submitted that once it became plain to the appellant that his version of how he was injured was seriously contested, he should have applied for an adjournment. I was not persuaded by this argument. It is one thing to be apprised, properly and prior to the trial, of the case one has to meet. It is another to learn, midway through the trial, that the defence actually mounted is very different to that pleaded. In the latter event, circumstances may be such that it is readily understandable why a party takes a practical decision to proceed with the trial and not seek an adjournment. In the case of the appellant, he had waited several years for his day in court. In addition, he had had to struggle to obtain the costs necessary to pay for his travelling expenses from England to Australia. An adjournment would mean further delay and additional costs. He could not be certain whether he would find Mr Clay and whether Mr Clay would be a co-operative witness. I considered that in these circumstances the appellant’s omission to seek an adjournment did not amount to a lack of due diligence on his part.
In my view, Mr Clay’s evidence was credible and probative to a high degree (particularly when considered together with the evidence of Mr Swan and Mrs Glover). Accordingly, I concluded that the evidence of Mr Clay should be admitted.
The evidence of Mr Carter
In an affidavit dated 18 June 2001 Mr Carter stated that on 2 May 1994 he noticed that the appellant “was in a bad way” and required help from the men to do his work. The appellant told him that he, the appellant, had slipped on the wet slurry while cleaning the beams.
Mr Carter also stated that on 15 May 1994, Mr Thompson told him and some other men about the accident the appellant had had and said that it was a pity that it was the appellant, and not his wife, that had had the accident.
In an affidavit dated 7 June 2002, Mr Carter stated that he was told by a person to whom he had made a job application that the latter had been informed by Mr Thompson that Mr Carter was a trouble maker, very unreliable and always having time off work. This occurred in early November 2001 and shortly thereafter Mr Carter telephoned Mr Thompson and asked why he had said those things about him. Mr Thompson said “you must know the reason I stuck it up you. You’re the one who spilt the beans about David Glover. I’ve seen the affidavit you signed, and Bill Saddington [a director of the respondent] passed it on to me. You put me right in it”.
The appellant should have known prior to the trial that Mr Carter was in a position to testify about the accident. On the other hand, it was not clear from the material before the court whether the appellant had any discussion with Mr Carter prior to the trial through which the appellant might have learnt of his evidence concerning his conversation with Mr Thompson on 15 May 1994. The memorandum of advice dated 10 September 2001 by junior counsel (referred to above) indicated that the appellant attempted to find Mr Carter but could not.
I considered it reasonably arguable, particularly in the light of the non-admission in the defence, that the appellant’s failure to call Mr Carter at the trial was not due to lack of diligence on his part. Mr Carter’s testimony, when taken with that of Mrs Glover, Mr Swan, and Mr Clay, was probative and there was nothing to suggest that it was not credible.
In those circumstances, and having concluded that the appeal should in any event succeed on the strength of the evidence of Mrs Glover and the appellant’s account of the evidence to be given by Mr Swan alone, and having decided that the evidence of Mr Clay should be admitted as well, I considered that there would be little point in refusing to allow the Mr Carter’s evidence to be admitted on the appeal. I therefore formed the view that Mr Carter’s evidence should be admitted.
The evidence of Mr White
The last witness identified by the court was Mr White who, between 1991 and 1995, was a director of the respondent. In an affidavit dated 18 June 2001, Mr White said that early in May 1994 Mr Higgins had told him that the appellant had injured his back at work on “Sunday” (presumably 1 May 1994). He gave other evidence that bore upon the issues relevant to the appeal.
Mr White testified at the trial on behalf of the appellant. He gave no evidence about any discussion he had with Mr Higgins.
Strictly speaking, the appellant’s explanation as to why Mr White did not at the trial give the evidence contained in his affidavit of 18 June 2001 failed to comply with the tests laid down in Akins v National Australia Bank. Nevertheless, applying the same reasoning as set out in paragraph 88 above in regard to Mr Carter, I considered that as the appeal should in any event succeed, it would serve no purpose in not admitting Mr White’s testimony.
The order for a new trial and the orders as to costs
The appellant sought only a new trial. This was entirely appropriate as it would be impossible to determine on the material before this Court which of the witnesses was in fact telling the truth. This is a matter for the trial judge at the new trial. The trial judge would be best equipped to deal with any questions of costs that might arise.
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