Li v Toyota (Ruling No 1)
[2010] VSC 450
•30 September 2010 (written reasons 4 October 2010)
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9344 of 2009
| JAMES LI | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 23, 24, 27, 28, 29 and 30 September, 1 October 2010 | |
DATE OF RULING: | 30 September 2010 (written reasons 4 October 2010) | |
CASE MAY BE CITED AS: | Li v Toyota (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 450 | |
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PROCEDURE – Rule in Browne v Dunn – Alleged failure by cross-examiner to put risk assessment obtained by Defendant to plaintiff’s ergonomist – No evidence-in-chief concerning risk assessment – No obligation to cross-examine on the document.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC Mr M Ruddle | Clark Toop & Taylor |
| For the Defendant | Mr D Curtain QC Ms F Ryan | Minter Ellison |
HIS HONOUR:
Introduction
The plaintiff James Li sues his former employer Toyota for injuries sustained by him in the course of his employment with it between October 1999 and May 2008.
A question has arisen in the course of the trial as to whether senior counsel who appears for Toyota has breached the rule in Browne v Dunn[1] in his cross-examination of Mr Mark Dohrmann, a Consultant Ergonomist, called on behalf of Mr Li. Senior counsel for Mr Li argues that a written risk assessment[2] prepared by Toyota should have been the subject of cross-examination of Mr Dohrmann, given that Toyota proposes to rely upon it.
[1](1893) 6 R 67.
[2]Referred to subsequently as “the risk assessment”.
In my view the rule has no application in the circumstances surrounding the cross-examination of Mr Dohrmann. Indeed, if there was any failure to address this issue it was by Mr Li’s legal practitioners and the expert witness himself.
The issues at trial
The trial of this proceeding commenced on 23 September 2010 before a jury of six. Mr Li’s claim centres on his allegation that the system of work at Toyota by which he moved panels from a press to a stillage was defective, and that Toyota was in breach of its common law duty as well as provisions of the Occupational Health and Safety (Manual Handling) Regulations.
Part of the allegation in relation to the breach of the Occupational Health and Safety Regulations (Regulations 13, 14 and 15)[3] is founded upon an asserted failure by Toyota to conduct an adequate risk assessment of the work carried out by Mr Li.
[3]On 30 September senior counsel informed the Court that he no longer relied upon alleged breaches of regulations 13 and 14.
Background facts
In October 2001 the press upon which Mr Li worked throughout the bulk of his working life at Toyota was the subject of the risk assessment now relied upon by Toyota at the trial.
The risk assessment, compiled by two Toyota employees, was described in its affidavit of documents and presumably was available for inspection by Mr Li’s legal representatives.
Both Mr Li and Toyota each engaged consultant ergonomists: Mr Dohrmann for Mr Li and Mr Anstee for Toyota.
In Mr Dohrmann’s initial report provided to Mr Li’s solicitors in June 2006 he made no mention of the risk assessment. Mr Anstee’s report was compiled in July 2010 and served on the solicitors for Mr Li. In that report Mr Anstee mentioned on several occasions the existence of the risk assessment and its relevance to his conclusions.
Mr Dohrmann, on 9 August 2010, prepared a critique of Mr Anstee’s report. Other than saying “If risk assessments on Line 5A have been carried out they should be produced for evaluation”, no other reference was made to it.
Nothing was done by Mr Dohrmann or Mr Li’s solicitors to obtain the risk assessment for his perusal or “evaluation”.
Mr Dohrmann’s evidence
When Mr Dohrmann gave evidence concerning the asserted inadequacies in the Toyota system of work he did so without conducting –
(a)a view of the workplace;
(b)any review of the production records of Toyota (also available to him if he sought them);
(c)any review of the risk assessment.
In the course of evidence-in-chief he was not asked by counsel for Mr Li to express an opinion as to the adequacy or otherwise of the risk assessment. The only mention of the risk assessment in cross-examination was, quite properly, in the context of Mr Dohrmann’s asserted failure as an expert to fully inform himself of all the facts relevant to Mr Li’s work, including the risk assessment. No cross-examination was directed towards the contents of the risk assessment. In re-examination, no evidence was adduced from him concerning the adequacy of the risk assessment (assuming that course to have been permissible).
The rule in Browne v Dunne
In Browne v Dunn[4] Lord Herschell said as follows:
If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.[5]
[4](1894) 6 R 67.
[5]Ibid 70.
In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation,[6] Hunt J said:
A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based. It is this third reason for the application of the first rule in or aspect of Browne v Dunn which is applicable in the present case.[7]
[6](1983) 1 NSWLR 1.
[7]Ibid, 22.
In White v Flower and Hart,[8] Goldberg J concluded after a review of the authorities:
The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which the case is conducted[9]
[8](1998) 156 ALR 169.
[9]Ibid, 218.
Recently in MWJ v The Queen,[10] the High Court (Gleeson CJ and Heydon J) stated the principle in the following terms:
The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.(emphasis added)
It was also said by the other members of the Court:-
We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice’s reference to the appellant’s counsel’s failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.[11] (emphasis added)
[10](2005) 80 ALJR 329 [18].
[11]80 ALJR 329 [38].
Application of the principles in this case
The Browne v Dunn principle casts an obligation upon a cross-examiner only where there is evidence given by a witness in respect of which contradictory evidence is to be led by the opponent in the course of his or her case. On occasions the existence of such contradictory evidence may be so obvious that it is not necessary to put the proposition. For instance, it may be abundantly clear from the exchange of material prior to trial where the issues lie between the parties, and any question of surprise or ambush (one of the principles underpinning the rule) is negated.
In this case there was no obligation whatsoever on counsel for Toyota to cross-examine Mr Dohrmann about the contents of the risk assessment. No evidence had been led from Mr Dohrmann relating to the risk assessment, notwithstanding that Mr Li’s case relates to an inadequate work system. Indeed, one would have thought, in compliance with the Expert Witness Code of Conduct prescribed under Rule 44.01, that Mr Dohrmann would necessarily have dealt with its contents. However, given his failure to address this relevant document, there was no requirement that counsel take up the matter. In other words, there was nothing to challenge as Mr Dohrmann chose to ignore the document, notwithstanding his knowledge of its existence.
In the course of his cross-examination, Mr Dohrmann invited counsel to put the contents of the risk assessment to him. The following exchange took place:-
Question: Here you are giving evidence, no view, no looking at the worksheets, no looking at the risk assessment?” Answer, “If you’d like to furnish me or tell me some of those numbers that you’re referring to there, I’d be very happy to produce an opinion as much if I can.” Question “On the spot?” Answer “If I can.”[12]
[12]T 160.
This, in my view, was disingenuous. Mr Dohrmann was in clear breach of the obligation which he owed to the Court to make “all the enquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the court”.[13] The existence of a risk assessment dealing with the very system of work which was the subject of the litigation was patently a matter of significance which Mr Dohrmann should have considered prior to giving evidence. He knew of its existence and did nothing to procure it for his own consideration apart from a desultory mention in his second report. It was quite wrong of him to raise the issue with counsel in cross-examination as he did and as he ought to have known given his regular appearances in this court and in the County Court.
[13]Expert Witness Code of Conduct Clause 3(h).
In my view if there was any fault attached to Mr Dohrmann’s failure to deal with the risk assessment it lies squarely at the feet of Mr Dohrmann himself or Mr Li’s legal advisers.
Conclusion
There was no breach of the rule in Browne v Dunn by senior counsel for Toyota. No mention of it should be made in the course of the address to the jury by Mr Li’s counsel.
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