Green v Emergency Services Telecommunications Authority
[2014] VSCA 207
•10 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0158
| GLENYCE RUTH GREEN | Appellant |
| v | |
| EMERGENCY SERVICES TELECOMMUNICATION AUTHORITY | Respondent |
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| JUDGES | ASHLEY, PRIEST and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 July 2014 |
| DATE OF JUDGMENT | 10 September 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 207 |
| JUDGMENT APPEALED FROM | Green v Emergency Services Telecommunication Authority (Unreported, County Court of Victoria, Judge Lacava) |
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ACCIDENT COMPENSATION – Workplace injury – Negligence and breach of statutory duty – Jury trial – Verdict for defendant – Recent invention – Legal practitioners – Counsel’s duties – Attack on plaintiff – Unjustified allegation of concoction and collusion between plaintiff and solicitor – Duty of counsel to ensure that evidence exists justifying allegation – Appeal allowed – New trial ordered.
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Wyles QC with Mr C S Smale | Saines Lucas Solicitors |
| For the Respondent | Mr M F Wheelahan QC with Mr S E Gladman | Thomson Geer |
ASHLEY JA
PRIEST JA
SANTAMARIA JA:
Introduction
Glenyce Ruth Green, the plaintiff in proceedings in the County Court, appeals against judgment for the defendant entered on 11 October 2013.
By writ issued on 10 September 2012, the appellant sued her employer, the Emergency Services Telecommunication Authority (‘ESTA’), claiming that in the course of her employment as a call-taker and fire-dispatcher she had sustained personal injuries as a result of her employer’s negligence or breach of statutory duty.
At trial, the appellant’s case centred upon an allegation that she suffered injury to her hands, wrists, arms and shoulders as the result of an excessive work-load undertaken by her on Black Saturday— 7 February 2009[1] — in unsatisfactory working conditions. That was the burden of the opening by her senior counsel,[2] and of her evidence in chief. Senior counsel opened to the jury that, ‘we’ll be asking you to find that it was the work on that day [Black Saturday] that caused [the injuries] to all start up’.
[1]The appellant also relied, more broadly, on work undertaken by her during the 2008–2009 fire season.
[2]He was not counsel who appeared for the appellant in this Court.
After a trial lasting nine days, on 11 October 2013 a jury of six returned a verdict for the defendant, finding that there was no negligence or a breach of a statutory duty which was the cause of injury, loss or damage to the appellant. Judgment was thus entered for ESTA, and the appellant was ordered to pay costs.
By Notice of Appeal dated 25 October 2013, the appellant seeks to set aside the jury’s verdict and consequential orders, and seeks an order for a retrial.
For the reasons that follow, we would allow the appeal.
Grounds of appeal
There are 11 grounds of appeal, grouped under three headings — ‘Conduct of counsel’ (grounds 1 to 3), ‘Conduct of the trial judge’ (grounds 4 to 8) and ‘The Workload Document’ (grounds 9 to 11).
The fate of this appeal, as will be seen, lies in the resolution of issues raised by grounds 1, 2 and 3. We should set them out in full:
Conduct of Counsel
1. The trial of the proceeding miscarried because leading counsel for the Respondent alleged both in cross examination of the Appellant and in his final address to the jury that her complaint that her injuries were affected by her duties at about the time of the Black Saturday bushfires in early 2009 was first made after she consulted her current solicitors, and was therefore a recent invention (‘the recent invention allegation’), in circumstances where the medical reports showed earlier complaint.
2. The trial of the proceeding miscarried because leading counsel for the Respondent, in seeking to establish the recent invention allegation, cross examined the Appellant on the histories she had given to doctors and which were recounted in their reports, but in putting these histories to her, failed to put to the Appellant those parts of the histories contained in each report which were inconsistent with the recent invention allegation.
3. The trial of the proceeding miscarried because, in the scope of objecting to the scope of re-examination, leading counsel for the Respondent assured the court that he had only put to the appellant in cross examination that she had not mentioned Black Saturday to any doctor up to April 2011, when in fact he had put to the Appellant that she had made no such complaint until after she had first attended on her current solicitors, which was, on the evidence, in late 2011 or early 2012.
We must make it clear at the outset that, in pursuing grounds 1 to 3, appellant’s counsel relied upon two distinct, though related, matters. Most importantly, counsel submitted that leading counsel for the respondent at trial (who it is convenient to describe as ‘respondent’s trial counsel’) in substance alleged, by cross-examination of the appellant, and in his closing address, that the appellant’s evidence implicating her work on Black Saturday in the causation of her injury was a concoction, late-arrived at in collusion with her then solicitor. Less significantly, as argument proceeded, counsel submitted that cross-examination of the appellant about histories which she had given to a number of doctors had been unfair, because the histories had been selectively quoted so as to convey to the appellant a false impression.
Both aspects of the submissions can be described as relating to ‘recent invention’. But they must not be conflated.
Grounds 4 to 8, ‘Conduct of the trial judge’, claim that the trial miscarried because the trial judge —
· erroneously directed the jury that it was open to them to find that the recent invention allegation was made out;
· failed to require counsel for the respondent to put to the appellant those parts of the histories contained in the medical reports which were inconsistent with the recent invention allegation;
· refused to permit counsel for the appellant to re-examine the appellant on those parts of the histories contained in the medical reports which were inconsistent with the recent invention allegation;
· failed to intervene to provide appropriate directions to the jury to ensure a fair hearing, in circumstances where counsel for the respondent repeatedly made the allegation of recent invention in cross-examination of the appellant, despite the existence of contrary evidence; and
· failed properly to redirect the jury about evidence of earlier complaints by the appellant linking her injuries to Black Saturday, despite the absence of such complaint to her general practitioner.
The last group of grounds, grounds 9 to 11, ‘The Workload Document’, claim that the trial miscarried because —
· counsel for the respondent misled the appellant in cross-examination that Exhibit 6 (Table 1, Work Records) set out her total workload — whereas it represented only a component of it — thereby ‘improperly’ obtaining concessions from the appellant as to the extent of her workload;
· having obtained concessions from the appellant while she was under a misapprehension as to the effect of Exhibit 6, counsel for the respondent was thereafter permitted to use those concessions in the cross-examination of other witnesses and in his final address; and
· the trial judge failed properly to direct the jury that the ‘incorrect representations’ made by counsel for the respondent about Exhibit 6 were misleading, and the concessions made should be disregarded because they were made on the basis of an misapprehension induced by the respondent’s counsel.
As will become clear, there is nothing in the grounds grouped as ‘Conduct of the trial judge’ or ‘The Workload document’, but aspects of the complaints collected as ‘Conduct of counsel’ must be upheld.
Before turning to consideration of the submissions made in support of the grounds of appeal, however, it is necessary briefly to summarise the essential factual background.
Factual background
The appellant was born on 30 April 1963.
Having been educated to Year 11, the appellant thereafter worked in various retail jobs until her first marriage in 1984. She was engaged in home duties until her separation from her husband in 2000, recommencing paid work in retail trade in 2001.
In 2002 the appellant commenced employment with VicRoads as a call-centre operator. She remarried in 2003, and has since lived in a family consisting of her and her husband, her two children from her first marriage and two children from her new husband’s first marriage.
On 12 July 2004, the appellant commenced full-time employment with ESTA as a call-taker. In 2007 she was appointed as a fire-dispatcher.
In July 2009 the appellant commenced training as a call-taker in the police section of the ESTA call centre. Her training occupied six weeks. She qualified as a police call-taker in September 2009. The appellant ceased working for ESTA, however, on 28 September 2009 — apart from a period of some five to six hours work in April 2012 — because of pain arising from alleged overuse injuries to her hands, wrists, arms and shoulders. It was the appellant’s case at trial that she had not been fit for employment since 28 September 2009, and that in addition to her physical injuries she had also been diagnosed as suffering from a related anxiety and depression.
Pleadings
Despite the manner in which her case was initially pleaded — in her original statement of claim she alleged that she had sustained injury as a result of her work between 2004 and 2009 — at trial the appellant made no allegation against ESTA of breach of duty with respect to the period of her employment prior to the 2008-2009 fire season, nor with respect to her brief subsequent work as a police call-taker. Indeed, during the course of the final address by leading counsel for ESTA, the judge informed the jury that the parties had ‘agreed to confine the case [so that] the plaintiff’s allegations against the defendant are that it was negligent and/or breached its statutory duties to the plaintiff in the 2008/2009 fire season, that is the period of the fire season leading up to Black Saturday and the period immediately after it’.
During the trial, consistently with her claim as thus advanced, the appellant’s Statement of Claim was amended in two tranches. In its final form, the relevant pleading was as follows:
2. The Defendant is a public authority that is responsible for inter alia the provision and control of emergency communications for the State of Victoria.
3. At all material times the Plaintiff was employed by the Defendant as a call taker and radio dispatch operator at the defendant’s premises at Mt. Helen, in the State of Victoria (‘the premises’).
PARTICULARS
(a)The Plaintiff’s employment commenced on 12 July 2004;
(b)The Plaintiff was employed full-time;
(c)The Plaintiff was employed to take emergency and non-emergency calls for CFA and radio dispatch. She was required to record the content of each phone call on to a computer via a keyboard and mouse.
4. At all material times, in the performance of her work, the Plaintiff was under the supervision and control of the Defendant, its servants and/or agents.
5. During 2008 and 2009 and in particular in the course of the fire season including 7 February and the days following the Plaintiff undertook repetitive and strenuous work in which she was required to use her hands to operate a keyboard and mouse and adopt an awkward posture for long periods without sufficient break in her duties or rotation of duties (‘the work duties’) as a result of which activities she was placed under undue strain.
With respect to breach, the appellant alleged that ESTA had been negligent in failing to provide reasonable care for her safety by failing to provide her with a safe place of work, proper and safe equipment, and a proper and safe system of conducting her work with adequate training, induction and supervision. She further and in the alternative alleged that she suffered her injuries as a result of a breach by ESTA of statutory duties imposed by the Occupational Health and Safety Act 1999, the Occupational Health and Safety (Manual Handling) Regulations1999 and the Occupational Health and Safety Regulations 2007. Her essential case was that during the 2008-2009 fire season, and especially on ‘Black Saturday’ (7 February 2009), ESTA was negligent in requiring her to undertake repetitive and strenuous work without proper breaks.
ESTA denied any negligence or breach of statutory duty, contending that the appellant’s injuries were not caused by her employment as a fire-dispatcher during the 2008-2009 summer period or by any breach of duty during that period.
Three questions were posed for the jury’s answer. First, was there negligence on the part of the defendant which was a cause of injury, loss and damage to the plaintiff? Second, was there a breach of statutory duty by the defendant which was a cause of injury, loss or damage to the plaintiff? Third, if ‘yes’ to either the first or second question, in what sum did the jury assess the plaintiff’s damages? The jury answered each of the first two questions, ‘no’.
The conduct of the respondent’s trial counsel with respect to the allegation of recent invention — grounds 1 to 3
Further evidence relied upon
Before turning to the submissions of the parties concerning grounds 1 to 3, we should refer to evidence additional to that led at trial upon which the appellant sought to rely on the appeal.
By a Summons filed 16 July 2014 (that is, less than a week before the day fixed for hearing of the appeal), the appellant made application to rely on two affidavits for the purposes of the appeal. It was submitted that the affidavits should be received, not as constituting evidence going to the merits of the decision as to liability, but because they contained matters, and explained context, bearing on the unfairness or injustice said to flow from the conduct of the trial.[3]
[3]Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260, [77], [96].
Counsel for the respondent[4] did not object to the Court receiving the two affidavits for the purpose identified by the appellant. The Court resolved to receive them.[5]
[4]Who were not respondent’s trial counsel.
[5]See Supreme Court (General Civil Procedure) Rules 2005, r 64.22(3).
The first affidavit was sworn by Mr Ian Vinson — he being the third solicitor consulted by the appellant with respect to her injuries — who had the care and conduct of the appellant’s case at trial. He deposed that he became aware of the allegation of recent invention which was first made on the second day of the trial. (The solicitor instructing the plaintiff’s counsel in court on Mr Vinson’s behalf was the deponent to the second affidavit, Mr Orry Pilven.) Mr Vinson exhibited to his affidavit notes of interview taken by him on the first day that the appellant consulted his firm, that being 8 February 2012. The notes show that the appellant made specific reference to her duties on Black Saturday as being relevant to her injuries.[6]
[6]See [35] below.
Mr Vinson further deposed that, having become aware of the allegation of recent invention — which he took to involve ‘repeated accusations that the Plaintiff had concocted a history in collusion with [him]’ — he wrote to the respondent’s solicitor by email on 3 October 2013 (the fourth day of the trial) drawing attention to his notes of interview (and other material) in which the appellant linked her problems to Black Saturday. In his email, he indicated that he was ‘quite happy to have [his] notes of interview tendered to the Court’, and he asked that the respondent’s counsel retract his allegations in open court.
Later the same day, Mr Vinson further wrote to the respondent’s solicitor, advising that the appellant’s second solicitor had also obtained a history from the appellant (dated 26 September 2011) in which Black Saturday figured. Mr Vinson also provided the respondent’s solicitors with various transcript references where it was said that the allegation of concoction was to be found.
Mr Vinson’s correspondence did not move the respondent’s solicitor. On the afternoon of 3 October 2013, he wrote to Mr Vinson by email saying that, having reviewed the transcript reference and discussed the matter with his client, they did ‘not consider there to be a basis for the assertions’ that he had made.
It was further the case that the first solicitor consulted by the appellant had also made a note, dated 1 September 2011, in which the appellant tied her injuries to her shift on Black Saturday.
As indicated above, the second affidavit was sworn by Mr Orry Pilven. He deposed that the notes of that consultation, and Mr Vinson’s notes of 8 February 2012, were handed by him to the appellant’s senior counsel on the afternoon of 3 October 2013; and that counsel, in his presence, then handed them to respondent’s trial counsel.
Mr Pilven also deposed that on the morning of the following day, 4 October 2013, he gave senior counsel for the appellant the file notes of the second solicitor dated 26 September 2011 (where, as we have said, reference was made to the relevance of Black Saturday). In his presence, senior counsel for the appellant then passed the notes to respondent’s trial counsel.
We should pause to observe that, having ourselves examined the file notes of the three solicitors which were provided to the respondent’s lawyers, it is plain that in providing instructions to each, the appellant referred to her duties on Black Saturday as being relevant to her injuries. Thus, when speaking to the first solicitor that she consulted on 1 September 2011, the appellant made clear reference to her shift on Black Saturday, complaining that for four days it was busy; that despite that no extra staff were put on; and that there was no opportunity to take a break. The notes of the second solicitor whom she consulted, dated 26 September 2011, also make distinct reference to ‘significant and strenuous work on Black Friday (sic.)’. Finally, the file notes of the third solicitor consulted, Mr Vinson, dated 8 February 2012, make conspicuous reference to the hours that the appellant was required to work on ‘Black Saturday February 2009’; that ‘Given the emergency situation she needed to stay continually at her desk’; that ‘There should have been breaks’; and that ‘there was inadequate staffing’.
Delivery of the notes of the three solicitors to counsel and the solicitor for the respondent, however, containing — as they obviously did — reference by the appellant to the relevance of the events of Black Saturday to her injuries, apparently continued to leave the respondent’s lawyers unperturbed. Despite a demand that the allegation of concoction and collusion be retracted, the solicitor for the respondent did ‘not consider there to be a basis for the assertions’ that had been made. Moreover, respondent’s trial counsel did not — as he ought to have — withdraw the allegation of concoction and collusion. Indeed, nothing at all was done by the respondent’s advisors to retract the imputation that the appellant had concocted a version revolving around Black Saturday in collusion with Mr Vinson.
The appellant’s submissions
In this Court, senior counsel for the appellant made very serious allegations of misconduct against respondent’s trial counsel.
He submitted that respondent’s trial counsel had made an allegation of recent invention against the appellant, in circumstances where it was an extraneous issue and must have been known to be false. Counsel for the appellant contended that the burden of the allegation of recent invention allegation was that the appellant had, in collusion with her instructing solicitors at trial, concocted the suggestion that her pain and injury were related to Black Saturday. Making the allegation, so it was argued, constituted ‘a serious dereliction of duty and misconduct by counsel’.[7] Here, of course, appellant’s counsel was addressing what we have described as the most important aspect of the matters argued under cover of grounds 1 to 3.
[7]Rees v Bailey Aluminium Products Pty Ltd (2009) 21 VR 478 (‘Rees’), 490–1 [32].
The submission further proceeded that the appellant had consulted three solicitors, the first and second having been consulted late in September 2011. It was the third, Mr Vinson, consulted on 8 February 2012, who was a partner in the firm of her ‘current solicitors’ and who represented her at trial. Counsel for ESTA had expressly put to the appellant in cross-examination that it was only after she saw her ‘current solicitors’ that ‘Black Saturday became a relevant factor in any way whatsoever, whether it be to doctor or to lawyer’.
It was then submitted that ‘there was evidence, and it lay in the very court room in which the parties were’,[8] that the allegation of collusion and concoction was baseless. In his brief and in the court books, and in the solicitors’ notes provided to the respondent’s side, respondent’s trial counsel had material which demonstrated unequivocally that the appellant had referred to Black Saturday as being relevant to her injuries before she consulted Mr Vinson. Some reports referred to the period covering ‘Black Saturday’ without using that label.
[8]Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260, [105].
Counsel for the appellant submitted that, even had counsel for ESTA been entitled, based on the material in his possession, to put to the appellant that up until late 2011 or early 2012 she had not linked Black Saturday to her injury when speaking to doctors, that could not have provided a basis for the allegation that her solicitors were complicit in the concoction which was alleged. Such an allegation, it was submitted, was tantamount to an allegation that the solicitors entered into a conspiracy to deceive the court. It could never be made without a firm basis in fact. No such basis existed. Counsel for ESTA had in his possession evidence to the contrary. An allegation of this kind was very prejudicial, and was ‘about as serious an allegation in relation to the conduct of a court proceeding by counsel as could be made’.[9]
[9]Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [2014] VSCA 3, [217].
Appellant’s counsel further contended that, notwithstanding that he knew the allegation of recent invention to be false, respondent’s trial counsel repeated it to the jury in his closing address.
Finally, when the Court sought answer to how it could be said that justice had miscarried when senior counsel for the appellant at trial had done little or nothing to remedy the perceived prejudice to the appellant’s case — whether by calling Mr Vinson (or the other history-takers) in rebuttal of the extremely serious allegation which had been made; by seeking the consent of the respondent’s lawyers to tender the various solicitors’ notes of their consultations with the appellant; or by seeking discharge of the jury — counsel submitted that the prejudice to the appellant’s case was irremediable. Notwithstanding the inaction of trial counsel, he submitted, the Court should nonetheless conclude that there had been a substantial miscarriage of justice.
Addressing the second of the matters identified in [9] above, it was submitted for the appellant in writing that respondent’s trial counsel, in his cross-examination of the appellant, had deliberately refrained from putting to her passages in medical reports which clearly demonstrated that she had linked Black Saturday and her injury. The appellant, so it was argued in writing, was deliberately and unfairly led to believe that histories in the medical reports which counsel was putting to her did not record her linking Black Saturday and her injury. Further, appellant’s counsel submitted, the trial judge did not — despite protests — permit the position to be corrected.
On the oral hearing of the appeal, however, appellant’s counsel conceded, having regard to the particular course adopted by counsel below, that his client could not succeed in her appeal in reliance upon the allegedly incomplete way in which histories which she had given to doctors were put to her in cross-examination. For reasons which we will later explain, we consider that the concession was correctly made.
The respondent’s submissions
Counsel for the respondent in this Court did not resile from an allegation of recent invention that had been pressed by trial counsel. By that, he was referring to the allegation that Black Saturday had not featured in histories given to doctors, or in statements made in other documents, early on in the piece. Counsel submitted that there was a substantial body of evidence to support ESTA’s case that the appellant’s injuries were not caused by work on Black Saturday which is, of course, a different matter. In written submissions counsel pointed to a variety of sources to support the contentions just mentioned. It is unnecessary to set them out.
Counsel further submitted that there was a proper basis for it being suggested to the appellant that the attribution of the onset of her injury to her work on Black Saturday coincided with her retainer of new solicitors, being the solicitors acting for her at trial. That submission focussed simply upon the asserted availability of evidence which could establish a temporal connection. Again, a variety of sources was identified. Again, it is unnecessary to set them out.
Counsel argued, again, that not only was the suggestion of recent invention open on the available material, but that senior counsel for the appellant at trial had accepted this was so. Thus there was no miscarriage or improper admission of evidence, and it was not now open to the appellant to complain.[10]
[10]General Motors-Holden Pty Ltd v Moularas (1964) 111 CLR 234, 242–3 (Barwick CJ); Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
Moreover, counsel submitted, it had been open to the appellant to adduce admissible evidence in re-examination, or to call other witnesses to give admissible evidence, to meet ESTA’s case of recent invention. Instead, so it was argued, senior counsel for the appellant impermissibly sought to take the appellant in re-examination to medical reports in the court book that were not in evidence, and did little else to meet the allegation.
Counsel submitted that in consequence of these various matters this Court should reject the appellant’s contentions. In particular, it should reject as baseless the submission that respondent’s trial counsel had alleged recent invention allegation had been an allegation of a concoction by the appellant in collusion with her solicitor, and that respondent’s trial counsel knew such an allegation to be false. Mr Vinson’s reaction to the impugned cross-examination was, it was argued, subjective; and the impressions he gained from it were not reactions that the jury would have had. That the cross-examination with respect to recent invention was proper could be gauged, counsel submitted, from the failure of trial counsel for the appellant to object to it, or to take some other action (such as to seek a discharge of the jury). It was submitted that the Court should conclude from the inaction of the appellant’s counsel at trial that they did not perceive any perceptible risk of justice miscarrying. The Court, being limited to the dry record of the trial, was not imbued with the atmosphere that had prevailed, and hence should be loath to conclude that there had been any miscarriage of justice flowing from the cross-examination of respondent’s trial counsel.
We should repeat that, to their credit, counsel for the ESTA on the appeal did not seek to put any obstacle in the way of the appellant introducing the affidavits of Mr Vinson and Mr Pilven. That was a perspicuously fair course to adopt.
Discussion
In resolving grounds 1 to 3, it is necessary to disentangle the two separate — yet connected — themes of the of the allegation of recent invention pursued by the respondent at trial.
The theme of lesser importance for the purposes of this appeal involved the allegation of recent invention based upon the appellant’s failure to link her symptoms to her duties on Black Saturday when she was initially assessed by medical experts, and in what she said in injury report and claim forms.
As the respondent’s counsel submitted in this Court, there was a body of material available, in the form of medical reports and related documents, which tended to show that the appellant had made no association of her symptoms to the events of Black Saturday until sometime in mid to late 2011. Subject to the question whether incomplete and thus unfair use was made of the documents in cross-examination, in our view it was legitimate for the respondent’s trial counsel to mount an attack on the appellant’s credit by cross-examining her on her failure in early consultations and in other documents to attribute her symptoms to Black Saturday. Under the general rubric of recent invention, it was proper to utilise the material in an endeavour to demonstrate that the appellant’s history had evolved over time so as to eventually link the symptoms to Black Saturday (when no such link initially had been ventured) and thus to cast doubt on the essential credibility of her case. Thus, subject to the qualification respecting unfair use in what preceded it, the following passage of cross-examination by respondent’s trial counsel was unexceptionable:
Mrs Green, in a very, regrettably lengthy way, I was asking you about histories that you’d given to doctors you had seen at the request of the defendant?---Yes.
They include the following names; Ms Triggs, Professor Robert Helme, Andrew Miller the surgeon, Dr Kornan the psychiatrist, Dr Baker and Dr Duke, and then Jager in October 2011?---Sorry, what was the last one?
Jager was the last one I asked you about?---Yes, sorry.
In October 2011?---Thankyou.
But perhaps we'll come to the point. I put this to you, that up until April 2011, with Triggs, Helme, Miller, Kornan, Baker and Duke?---Yes.
You did not advise in your history to them, that is any of them, that you regarded Black Saturday as a significant aspect of the history of your developing condition, not one?---Yes.
Do you agree?---Or no, sorry, I’m not sure I'd say- Yes, I agree.
The first, and critical, theme of the allegation of recent invention identified in [9] above was, according to the submissions for the appellant, that the appellant’s attribution of her symptoms to Black Saturday was born of concoction in which her solicitors were complicit. The first question to be answered is whether such an allegation was made. In our opinion, it was. As will become clear, however, the allegation of concoction and collusion was not made directly. It was hinted at. It was insinuated. It came by a side wind. The following extracts of the cross-examination of the appellant by respondent’s trial counsel give the flavour of what occurred:[11]
[11]Emphases added.
Could I suggest to you that you didn’t link [the symptoms to] Black Saturday until you saw your current solicitors in 2011? ---No, I think I linked it to the busier time, whether it was Black Saturday, or whether it was the fire season.
…
And if you believed that the work of Black Saturday had been a significant factor in causing you to lose the job that you loved, and had intended to stay till 65, surely the first thing you would do would be to tell (a) your treating doctors and (b) any other doctors that ask, it's all flared up on Black Saturday?---I didn’t tell the doctors about Black Saturday. I understand that I didn’t tell the doctors about Black Saturday. It was traumatic enough without putting extra pressure on that. I understand that sounds like a cliche, I do, but Black Saturday was traumatic enough for the people that suffered on Black Saturday, so, afterwards when I left, and, yes, after I’d done police, and yes, when I could do no more, we went back through, you know, we as in myself, and noticed the increase in movement of your hands, and yes, Black Saturday was increased, yes, and so was the police, yes.
But I’m putting to you no, you didn’t tell any doctors including your general practitioner?---I didn’t tell the defendant's doctors, no, because I didn't think it was necessary to drag Black Saturday into it.
But I’m talking about your own doctors; Dr Hassett?---Only that I talked about it with him.
I'm saying you did it?---I understand you're saying that, yes.
No one. You didn’t tell your side, doctors, you didn’t tell the doctors engaged by the defendant. Black Saturday just doesn’t get it as a significant feature anywhere up until we get into 2011 which we’ll come to?---Yes.
…
What I suggest to you is that in terms of preparation for this case that was the first time, that is after you’d had - you had the services of [the first solicitor], they had come and gone, you’d seen some other person by the name of [the second solicitor], and then over to your current solicitors. That’s the first time that Black Saturday became a relevant factor in any way whatsoever, whether it be to doctor or to lawyer? ---Yes. Sorry, I didn’t know you were waiting.
…
You see what I suggest is that that became an issue not here, not in May, not in September, not during 2010 when you’re seeing all these doctors in 2011 not a mention of Black Saturday until you see these lawyers up here?---It wasn’t a mention of Black Saturday, it was just over heavier duties if you like, busier times. I just didn’t want to be mentioning Black Saturday all the time, that was all. Whether it was a }ire season - - -
What about-- -?---Excuse me, whether it was a fire season over the summer, or whether it was Black Saturday, or whatever you want to name it at the time, or police work, it was still increased duties, or busier times.
What about mentioning it once? Not, “I didn’t want to keep on mentioning Black Saturday”, you haven’t stopped mentioning Black Saturday since you got involved with these lawyers I suggest? ---(No audible response.)
Two years after the event?---Everybody has asked when the- injury if you like occurred, and I’ve always said when I was busier, or when after Black Saturday yes, because I was busier.
When did it occur to you that Black Saturday was responsible for some sort of injury to you?---When? Sorry. During the year because you have to look back – when you talk to doctors you look back, and I know there’s not a mention of it, but you look back to think when – when it could have happened, when were you busier, when you had increased duties, etcetera. So we went back to the fire season and we went to – which Black Saturday falls under-- -
But who went back?---Well me.
You went back?---Yes.
But you told the doctors that it happened when you were doing the police work?---I told the doctor there were increased duties, yes.
You didn’t tell them about Black Saturday-- -?---I didn’t say it happened during the police, I said I was cross trained to do police, so duties increased, yes.
But you didn’t say that you had increased duties on Black Saturday you didn’t mention it for two years until these lawyers get involved, and brings us all here?---I just mentioned increased duties regardless whether it was fire season, or whether it was police.
In his final submissions, respondent’s trial counsel said this:
… What I'm putting is that – sometimes the law is a pretty obvious sort of term, but it became a recent invention. It wasn’t there in 2009, 2010 and 2011. It has come about by reason of ultimately, we submit, court proceedings, after all these doctors and things have been told nothing about it.
…
So that then brings me to the repetition of my brief - this time brief - submission to you that all of these claim forms, doctors, lawyers, everything, why would it be that February '09 would not be mentioned? Yet it forms the basis of the claim against us.[12]
…
[12]Our emphases.
We reject the submissions of counsel for the respondent in this Court so far as they contended that that the cross-examination of the appellant at trial did not amount to an allegation of collusion between the appellant and her current solicitor to concoct a history which identified the germination of the appellant’s injuries as arising from her duties on Black Saturday. Having read the whole of the cross-examination, we are left in no doubt that such an allegation was the thrust of the cross-examination. As we have already said, the allegation was raised by insinuation. Counsel did not put the allegation to the appellant directly. But put it he unmistakeably did, by a side wind and by innuendo. To adopt Pope’s well-known aphorism, counsel ‘Was willing to wound, and yet afraid to strike’.[13]
[13]Alexander Pope, An Epistle to Dr Arbuthnot (1735). See Reid v Kerr (1974) 9 SASR 367, 374 (Wells J); Garrett v Nicholson (1999) 21 WAR 226, 243 [54] (Pidgeon J); R v Morrow (2009) 26 VR 526, 541 [51] (Redlich JA); R v Boyle (2009) 26 VR 219, 230 [40] (Weinberg JA, Williams and Coghlan AJJA); R v Chalmers (2012) 115 SASR 150, 153 [12] (Kourakis CJ); Visy Packaging Holdings Pty Ltd v Commissioner of Taxation [2012] FCA 1195, [194] (Middleton J).
Then, in the passages cited at [56] above, counsel asserted in his final address that nothing had been said by the appellant about the significance of Black Saturday in 2011, and he associated the emergence of that account with the initiation of court proceedings. He asserted also that the appellant had said nothing to her earlier solicitors about the matter. Those assertions were irreconcilable with documents which Mr Vinson had provided to the respondent’s lawyers, and they furthered the insinuation conveyed by the cross-examination. The proceeding was initiated by the appellant’s then-current solicitor, as emerged clearly from cross-examination of the appellant. In the third passage of cross-examination noted at [55] above (commencing ‘What I suggest’) the insinuation was conveyed[14] that the appellant’s first two solicitors had informed her that she had no case to advance. That gave added force to the insinuation — conveyed by the entirety of the pertinent cross-examination — that the significance of Black Saturday was a concoction which the appellant had arrived at in collusion with Mr Vinson.
[14]As it was by other passages of cross-examination which need not be cited.
A sensible juror might rationally have reached the conclusion that we have. Even bearing in mind the respondent’s submission that Mr Vinson’s subjective state of mind would not necessarily reflect that of the jury, we are fortified in our view by the fact that Mr Vinson himself interpreted the cross-examination as a clear accusation that he and the appellant had colluded in a concoction. Indeed, having read the transcript of the trial, and taking due notice of the fact that it is difficult to recapture the mood of the courtroom by recourse to the paper record, we are firmly of the view that it would have been well understood by the jury that such an allegation was being made.
To allege that the appellant and her solicitor had connived to manufacture a false history — in effect, to attempt to pervert the course of justice — was a very serious accusation to advance. In ordinary practice, the occasions upon which counsel would be justified in making such an allegation would rarely present themselves. Of course, such an allegation could never be made without solid justification, and could not properly be made without very firm foundation. Counsel enjoy a considerable and unique privilege in the presentation of a client’s case in court. The right of audience carries with it complete immunity from liability for defamation.[15] It need hardly be expressed, but that privilege should not be abused. With the privilege goes a concomitant responsibility.[16] Serious allegations of misconduct — as was the case here — must not be made by counsel unless such allegations are reasonably justified by the material available to him or her.
[15]Strange v Hybinett [1988] VR 418, 423–4 (Gray J).
[16]Ibid 425 (Phillips J).
Recently, in Rees v Bailey Aluminium Products Pty Ltd and Anor,[17] the Court (Ashley and Redlich JJA, and Coghlan AJA) discussed the duties of counsel:[18]
An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel.[19] Whilst counsel has a duty to his client and to his opponent, his paramount duty is to the Court and to truth and justice.[20] The obligation not to mislead the Court or cast unjustifiable aspersions on any party or witness arises as part of this duty. In the discharge of that duty, counsel must exercise an independent discretion or judgment to ensure that the conduct of their client’s case is in accordance with the dictates of the administration of justice.[21] Where counsel alleges criminal conduct or some lesser but serious discreditable misconduct against a witness or party without a proper foundation to do so, counsel is in breach of that paramount duty, such conduct being viewed as an abuse of process for which counsel can be sanctioned.[22] The Victorian Bar Practice Rules prescribe that counsel may not make such a serious allegation unless it is ‘reasonably justified by the material then available to the barrister’[23] and that such an allegation is appropriate ‘for the robust advancement of the client’s case on its merits’.[24] Counsel is prohibited from cross-examination which suggests criminality, fraud or other serious misconduct on the part of any person unless counsel ‘believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion‘.[25] Similar restrictions apply to counsel in drafting pleadings and affidavits.[26] Thus, counsel must form an independent judgment as to whether the evidence or the information within his position can justify a serious attack on the character of a witness or party.
The joint judgment of Winneke CJ, Barry and Gowans JJ in Chatzipantelis emphasises that a failure by counsel to observe his (or her) duty to ‘his client but also his duty to his opponent, to the Court and to himself, as well as his paramount duty to truth and justice … will not infrequently result in the trial aborting, with consequent delay, expense and frustration’.[27]
In Strange v Hybinett the court found that counsel, carried away by his own rhetoric, had overstepped the mark of legitimate advocacy so as to require the jury’s verdict to be set aside.[28] Counsel for the plaintiff had alleged corruption on the part of the solicitor for the defendant when there was no evidence to support the claim. The allegation was made the more damaging because it was represented as counsel’s personal opinion. Gray J referred to counsel’s right of audience which carries with it a complete immunity from liability for defamation and which is accompanied by a corresponding duty to ensure that the privilege is not abused.[29] His Honour cited the following passage from Lord McMillan’s book, Law and Other Things:
It is no small responsibility which the State throws upon a lawyer in thus confiding to this discretion the reputation of the citizen. No enthusiasm for his client’s case, no specious assurance from his client that the insertion of some strong allegations will coerce a favourable settlement, no desire to fortify the relevance of his client’s case, entitles the advocate to trespass, in matters involving reputation, a hair’s breadth beyond what the facts as laid before him and duly vouched and tested will justify.[30]
[17](2008) 21 VR 478.
[18]Ibid 490–1 [32]–[34].
[19]White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Aboriginal Land Counsel (1990) 71 LGRA 201, 203–4.
[20]Chatzipantelis v Grimwade Castings [1996] VR 242; Vozza v Tooth and Co Ltd (1963) NSWR 1675.
[21]Giannarelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ);
[22]White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169.
[23]Rule 31; Advocacy in Practice (JL Glissan, 4th ed), [10.6].
[24]Rule 31(a).
[25]Rule 38(a).
[26]Rule 34.
[27][1966] VR 242, 246.
[28][1988] VR 418, 422 (Murphy J).
[29]Ibid 423-4.
[30] p. 191-2.
We have already accepted that it was legitimate for respondent’s trial counsel, making fair use of histories provided to doctors and the contents of documents of which the appellant was the author or signatory, to cross-examine her upon what we have identified as the first theme of recent invention. But that is not to the point, since we are firmly of the view that the serious allegations of concoction and collusion made by counsel were not justified by the material in his hands. Moreover, even if counsel wrongly thought, before beginning cross-examination, that such an allegation was open, he could not legitimately have continued to maintain that state of mind when provided with the notes of the three solicitors that the appellant had consulted, and, in particular, Mr Vinson’s notes.
Once it must have become obvious to respondent’s trial counsel that an allegation of concoction and collusion — express or implied — could not properly be maintained, he should have unequivocally and unreservedly retracted it (as embarrassing as that might have been to counsel personally, or to his client’s case). He did not do so.
In our opinion, the accusation of collusion to concoct a bogus history had the manifest potential to poison the appellant’s case. There were, however, possible antidotes, four of which we discuss below.
First, counsel for the appellant could have objected to the cross-examination. He did not specifically do so. Instead, he conceded that cross-examination as to recent invention was open. However, (a) it could not be understood to have been a concession that respondent’s trial counsel was entitled to cross-examination as to concoction and collusion; (b) the concession was made in the course of debate as to whether certain cross examination might infringe upon legal professional privilege; (c) it was made before Mr Vinson’s communications with the respondent’s lawyers.
Second, appellant’s counsel could have sought the consent of the respondent to tender the file notes of the three solicitors so as to dispel any spectre of concoction. Given the attitude of the respondent’s solicitor,[31] however, we are far from sanguine that such a course would have been sanctioned by the respondent.
[31]See [29] above.
Third, appellant’s counsel could have called Mr Vinson, or sought to recall the plaintiff, to provide a triumphal and resounding riposte. To anybody experienced in advocacy, that option presents as an obvious — indeed, an almost elementary — response to what had occurred. But that course was not adopted.
Counsel’s failure to adopt it is, on the face of it, somewhat baffling. It is not that counsel was not appraised of Mr Vinson’s reaction to the cross-examination. Again, the failure to adopt that course could not sensibly be viewed as having been a forensic decision. In a hard-fought case, the risk presented by an allegation not merely of recent invention, but of recent invention which was the product of concoction by collusion between the appellant and her solicitor, had no realistic benefit for the appellant’s case.
We were invited by respondent’s counsel to conclude that the position adopted by the appellant’s trial counsel demonstrated that those in court did not understand an allegation of concoction to have been made. But Mr Vinson’s reaction shows, at best for the respondent, that those in court were not of one mind. Those in court, of course, critically included the jurors; and we have already expressed the opinion that a reasonable juror may well have inferred that such an accusation had indeed been made.
In oral argument on the appeal it was suggested for the appellant that a reason for not adopting the strategy of calling the solicitor might have been that counsel for the respondent may then have had carte blanche to cross-examine on privileged material, privilege having been waived by production of the file notes. We regard that suggestion as somewhat chimerical, however, since the judge had ample powers to circumscribe the scope of any cross-examination necessitated by the reckless allegations of respondent’s trial counsel, so as to protect the appellant from any further unfairness and so as to ensure that the respondent did not profit from the unjustifiable conduct of its counsel.
Fourth, counsel for the appellant could have asked for a discharge of the jury. He did not do so. Counsel for the respondent on the appeal submitted that we ought as a result to conclude that there had been no miscarriage of justice.
We acknowledge the force of the notion that, generally speaking, a litigant is bound by the conduct of his or her counsel; and that, again generally speaking, the failure of a litigant’s counsel to adopt a readily available strategy at trial so as to endeavour to remedy or ameliorate wrongful prejudice to his or her client ought tell against the litigant on appeal. Certainly it cannot be gainsaid that the failure of counsel in this case either to call the appellant’s solicitor to rebut the concoction allegation, or to seek discharge of the jury, are formidable obstacles in the way of the appellant. They are not, however, insurmountable.
In our opinion the appellant is entitled to succeed on the grounds now under discussion despite the actions — perhaps inaction — of her counsel. Although the failure of her trial counsel to endeavour to remedy what had occurred at trial is a significant factor in determining whether the jury’s verdict should be set aside, it is not necessarily fatal. The appellant must persuade the Court that, notwithstanding the failures of her counsel, there has nonetheless been a substantial miscarriage of justice. In the long run, this Court’s jurisdiction to order a new trial must depend on the demands of justice.[32] We are persuaded that there has been a substantial miscarriage of justice, and that the demands of justice warrant an order for a retrial.[33] In our opinion, the allegation of collusion to concoct a false history was so insidious that it was not readily curable — at least putting an application to discharge the jury, the fate of which is speculative, to one side — by any of the forensic strategies that we have earlier discussed.[34] The well had been poisoned. In our view, the conduct of respondent’s trial counsel caused irreparable damage to the appellant’s case. The impressions that would have been generated by the assertions that he had made concerning the conduct of the appellant and her solicitor would have been impossible to erase.[35]
[32]Kenyon v Barry Bros Specialised Services Pty Ltd [2001] VSCA 3, [19] (Winneke P; Phillips JA and Charles JA agreeing).
[33]Supreme Court (General Civil Procedure) Rules 2005, r 64.22(2).
[34]At [64]-[71] above.
[35]Strange v Hybinett [1988] VR 418, 424–4 (Gray J), citing Vozza v Tooth [1963] NSWR 1675, 1683.
We add this. As was the situation in Rees, the verdict in favour of the respondent was explicable on the evidence properly before the jury. It was not obviously aberrant. But, as the Court said in Rees:[36]
… while it may be said that an aberrant result in association with counsel’s misconduct may tend to suggest that the former is the product of the latter, it may be doubted that it can be safely concluded that an explicable verdict in the presence of such misconduct tells against the misconduct having been, actually or potentially, operative in the verdict. It may be said that in a finely balanced, or difficult, plaintiff’s case, such misconduct might provide the tipping-point. The conclusion that a trial was unfair is not dependent upon an assessment that the disadvantaged party was likely to have succeeded were it not for the improper conduct.
[36]Rees 519 [135].
For the foregoing reasons, we would set aside the jury’s verdict and the judgment entered thereon and would order a retrial.
Claimed shortcomings of the trial judge with respect to the allegation of recent invention — grounds 4 to 8
These grounds focussed largely upon what we have called the lesser aspect of the recent invention allegation, and the appellant’s argument that the judge erred in one or more ways by not ensuring that the allegation, made in cross-examination of the appellant, that she had not given a ‘Black Saturday history’ to doctors, was fairly put.
The appellant’s submissions
Counsel for the appellant submitted the trial judge failed to recognise the serious unfairness caused by the conduct of counsel for ESTA with respect to the allegation of recent invention. In particular, it was contended that the trial judge should have:
· directed ESTA’s counsel to put the material allegedly omitted from the doctors’ reports;
· allowed counsel for the appellant to put the material omitted from those reports in re-examination;
· ruled that the allegation the appellant’s solicitors were complicit in the allegation of recent invention allegation be withdrawn without qualification;
· not charged the jury that the recent invention allegation was open on the evidence;
· when redirecting the jury about the appellant’s giving of her medical history, not focused exclusively on that given to Dr Hassett to the exclusion of other doctors’ reports (which, it was submitted, recorded a long history of complaint of increasing pain from the 2008-2009 fire season, and which, in two cases, made explicit reference to Black Saturday); and
· having failed to take any of these steps, discharged the jury of his own motion.
Ultimately, counsel submitted that the judge’s directions concerning the recent invention allegation ‘gave rise to a real risk that the jury would use the [recent invention allegation] as a basis to reason impermissibly’.[37]
[37]Wilson v Collingwood Store Pty Ltd [2014] VSCA 20, [61].
The respondent’s submissions
The respondent submitted that it was open to the jury to conclude that the appellant’s symptoms were not attributable to Black Saturday, and that the attribution was a recent invention (as was put by ESTA’s counsel in an elaborate fashion in his final address). No parts of the histories, so it was argued, were inconsistent with ESTA’s case of recent invention. Counsel argued that the attempt to re-examine the appellant by reference to medical reports that were not in evidence was impermissible. Further, there was no occasion for the trial judge to intervene to provide any particular directions to the jury.
Counsel drew attention to the fact that the trial judge summarised the evidence of the witnesses on the question of causation, and that when a submission was made at trial that that the judge had not referred to the evidence of Dr Hassett’s cross-examination to which counsel had referred the jury in his address, the judge then referred the jury to Dr Hassett’s evidence in terms that were ‘unexceptional’. In so far as the appellant had submitted that the trial judge should have directed the jury’s attention to medical reports that were not in evidence, the respondent submitted that — understandably — such a submission was not made to the trial judge and should be rejected by this Court.
Discussion
In light of the conclusions we have reached with respect to grounds 1 to 3, it is unnecessary to say much concerning grounds 4 to 8.
The judge can hardly be criticised for failing to direct the respondent’s counsel to put to the appellant aspects of the histories in medical reports that were omitted from the cross-examination by counsel for the respondent. He was not asked to do so.
Nor can the judge legitimately be criticised for failing to direct that counsel for the respondent withdraw the allegation that the appellant’s solicitor had colluded in the supposed recent invention. He was not asked to do so.
Further, the judge cannot be criticised for neglecting to charge the jury that the recent invention allegation was not open on the evidence. Senior counsel for the appellant had conceded that it was — although, as we have observed, the nature of the concession, on analysis, was far from clear. In the adversarial setting of a trial, the judge was not required to second-guess counsel’s concession.
So far as the criticisms directed to the judge’s charge concerning the evidence of Dr Hassett are concerned, it seems to us that the respondent’s submission that the directions were ‘unexceptional’ should be accepted. The judge showed a preparedness to redirect when supposed deficiencies in his charge were drawn to his attention. Counsel did not press for any redirection on the matter now complained of. There is nothing in the criticism of the judge’s direction concerning the evidence of Dr Hassett.
As to the criticism that appellant’s counsel was not permitted to put to his client in re-examination parts of the medical histories omitted in cross-examination, it is clear that during re-examination appellant’s counsel sought the opportunity for his client to look at the defendant’s Court Book, and to refer her to parts of the histories noted in the medical reports that had not been elicited in cross-examination. He was not permitted to do so. Nor should he have been. It had not been elicited that the appellant had read the medical reports at the time when the relevant matters were fresh in her memory and ‘found by [her] to be accurate’.[38] And although the appellant could have given evidence of what she told various doctors (as prior consistent statements to rebut recent invention),[39] she could not do it by reference to documents of which she was not the author, or which she had not read at a time when the events were fresh in her memory and found to be accurate.[40] The proper time to object to any unfair and misleading ‘cherry-picking’ by the cross-examiner was at the time that cross-examination was proceeding. Had legitimate complaint been made to the trial judge about the unfair nature of the cross-examination, we have little doubt that his Honour would have intervened. He was not asked to do so. Rather, counsel attempted to put more complete histories by a method that was not open to him. The judge cannot be criticised for complying with the rules of evidence.
[38]Evidence Act 2008, s 32(2)(b)(ii).
[39]Evidence Act 2008, s 108(3).
[40]Evidence Act 2008, s 32(2)(b).
Finally, the suggestion that the judge should have discharged the jury of his own motion is wholly without merit. There was nothing presenting itself to the trial judge that could have led him to the view that it was necessary to take the drastic step of discharging the jury of his own motion. The appellant was represented by very experienced senior and junior counsel and, in the absence of flagrant incompetence, was entitled to rely on them to adequately protect the appellant’s interests.
We would reject grounds 4 to 8.
Errors with respect to the ‘workload’ document — grounds 9 to 11
The appellant’s submissions
Although on the hearing of the appeal appellant’s counsel did not abandon grounds 9 to 11, he treated them, he said, ‘with a light touch’, and he conceded that ‘if we only had a point like this we wouldn’t be here’.
In written submissions it had been contended that counsel for ESTA cross-examined the appellant with a view to minimising her workload in the relevant period. Counsel produced a Table, and put to the appellant that it recorded all her work as an employee of ESTA. Having made that representation, counsel then obtained the concession that the Table recorded the appellant’s workload for January 2009 as being a total of two hours’ work for the month. That concession, it was submitted, was highly prejudicial to the appellant’s case, since it must significantly have influenced the jury who were being asked to find an ‘over-use’ injury.
Although the appellant initially expressed doubts that the Table did record all her work, counsel for ESTA insisted that it did. It was submitted that he made that representation to the appellant four times, and made it once to the judge in her absence. In the light of the appellant’s doubts, however, ESTA’s counsel informed the trial judge that he would ‘seek some brief instruction’ to clarify exactly what it was the Table recorded. Lunch followed. Immediately after lunch, ESTA’s counsel — without referring to the Table — suggested to the appellant that, on a peak day, and leaving aside Black Saturday, she would only work as a dispatcher ‘about 30 per cent of the time’. The appellant accepted that suggestion.
It had been submitted in writing for the appellant that it was only after obtaining that concession that counsel for ESTA made any attempt to put his new instructions and clarify the scope of the work recorded by the Table. He did this, so it was argued, in a manner calculated to conceal from the appellant and the jury the true import of what he was now conceding; that is, that the Table only recorded the minor part of the appellant’s work (being as a call-taker), and did not record the major part of her work (that of a dispatcher).
It was submitted that, notwithstanding that the appellant’s concessions about her workload were wrongly extracted from her by ‘erroneous assurances’ about a matter peculiarly within ESTA’s knowledge, counsel for ESTA wrongly and unfairly put those concessions to another witness, and repeated their substance in his opening address.
Finally, it was contended that the trial judge failed to require counsel for ESTA to state plainly to the jury that his extensive cross-examination of the appellant on the implications of the Table had been founded on the misconception that the Table recorded all her work. Moreover, the trial judge failed, so it was submitted, to direct the jury about the Table and concessions obtained by its misuse.
The respondent’s submissions
In written submissions, counsel for the respondent submitted that following that part of the cross-examination of the appellant impugned in this Court, several clarifications were sought from the appellant. First, prior to the lunch adjournment on 2 October, the trial judge questioned the appellant in order to clarify the situation with respect of the completeness of the ‘workload document’. The appellant said that she doubted that it recorded her entire workload. Respondent’s trial counsel then continued the clarification. Second, after the lunch adjournment — and the opportunity to seek further instructions — counsel corrected himself, and put to the appellant that the ‘workload document’ enshrined all of her work as a call-taker, but not as a dispatcher, and that dispatch was about 30 per cent of her workload. The appellant agreed. In the latter clarification, counsel referred specifically to the document.
In light of these matters, counsel for the respondent submitted that the appellant had been afforded the opportunity to clarify her understanding of the extent of the work set out in the Table. Clarification was made, and put clearly so that the jury could understand it. Hence no concessions were obtained ‘improperly’. The cross-examination after the lunch adjournment was, it was submitted, open and transparent, and was not done in a manner calculated to obscure the import of the correction. Further, the appellant was re-examined about the Table, and clarified again that it did not include messages that came to her via call-takers.
In so far as the appellant further claimed that counsel for ESTA ‘wrongly and unfairly’ used concessions relating to the ‘workload document’ in cross-examination of other witnesses, and in his opening address, it was submitted that the only witness (other than the appellant) who was referred to the document was Mr Hayfield. His evidence in chief was that the document only reflected the incoming telephone calls, and not the calls coming in from other call-takers. Counsel for the respondent at trial put to Mr Hayfield in cross-examination the appellant’s evidence that dispatch work occupied about one third of the day on a busy day. Mr Hayfield disagreed and thought that it would be a fair bit more than 30 per cent of the time. Accordingly, it was said, no ‘concessions’ obtained improperly during cross examination of the appellant were ever put to Mr Hayfield.
Counsel for the respondent submitted that the part of the opening address of ESTA’s counsel with which the appellant took issue did not relate to or refer to the ‘workload document’. Rather, so it was put, counsel foreshadowed that evidence would be called that the appellant’s workload was less than 50 per cent even at busy times. Such evidence was then given by witnesses called by the respondent — Mr Ellis, Ms Armstrong and Ms Edwards.
Finally, in so far as the appellant alleged that the trial judge failed to direct the jury properly that respondent’s trial counsel had made ‘incorrect representations’ respondent’s trial counsel about the workload document, the respondent denied that any ‘incorrect representations’ were in the end made about the document. It was argued that the appellant had the opportunity to clarify her evidence in relation to the workload document; and that, during his final address, appellant’s senior counsel told the jury that they could forget the workload document and related cross examination. The respondent pointed out that no request for any particular direction about the document was sought during the trial, and that no relevant exception was taken to the trial judge’s charge.
Discussion
There is nothing in grounds 9 to 11. Although they were not specifically abandoned, counsel for the appellant in effect conceded that the appellant could not succeed on these grounds alone.
To dispose of these grounds it is sufficient to observe that the thrust of the respondent’s submissions should be accepted. It is plain, in our view, that respondent‘s trial counsel did not understand his instructions relating to the impugned document or the document’s purport. So much would have become abundantly clear to the jury following the luncheon adjournment on 2 October 2013, when counsel specifically and unequivocally corrected earlier inaccurate assertions that he had made in his cross-examination to the effect that the document included all of the appellant’s work. Counsel made plain that his assertions were inaccurate, and that the document only recorded the appellant’s history as a call-taker not as a fire-despatcher. In those circumstances, it is unlikely that any prejudice flowed to the appellant’s case from the error-laden cross-examination. If anything, when it became clear that the impugned cross-examination was founded on a fallacious premise, it is likely that would have redounded to the respondent’s prejudice (or, at least, would have been seen by the jury as reflecting poorly on counsel).
Whilst it is regrettable that respondent’s trial counsel had not taken more care to understand the substance of the Table before launching upon cross-examination which was accordingly calculated to be misleading, any possibility of harm to the appellant’s case was eliminated by the correction later made.
Grounds 9, 10 and 11 cannot be upheld.
Conclusion
For the foregoing reasons, we would allow the appeal, set aside the orders made at trial and direct that a new trial be had. We would hear the parties on the question of costs.
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