Lidster v SPC Ardmona Ltd
[2012] VSC 180
•2 May 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WANGARATTA
COMMON LAW DIVISION
No. S CI 2007 1339
| COLIN ROLAND LIDSTER | Plaintiff |
| v | |
| SPC ARDMONA LIMITED | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 30 April and 1 - 2 May 2012 | |
DATE OF RULING: | 2 May 2012 | |
DATE OF REASONS: | 4 May 2012 | |
CASE MAY BE CITED AS: | Lidster v SPC Ardmona Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 180 | |
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ACCIDENT COMPENSATION - Workplace injury – Negligence – Claim for damages – Accident Compensation Act 1985, s 134AB.
PRACTICE AND PROCEDURE – Jury trial – Application by plaintiff to discharge jury – Pleadings – Particulars – Plaintiff denied opportunity for a view - Jury discharged – Adjournment – Mode of trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T.S. Monti with Mr M.W. Seelig | Nevin Lenne & Gross |
| For the Defendant | Mr J.T. Rush RFD QC with MR R.H. Stanley | Wisewould Mahony |
HIS HONOUR:
Introduction
By writ issued 16 November 2007, Colin Roland Lidster, the plaintiff, claims damages from SPC Ardmona Limited, the defendant. The plaintiff’s claim is that on 18 May 2004, while working in the course of his employment with the defendant, he “tripped upon a broom situated upon a platform surround as a result of which he twisted his back and fell very awkwardly and thereby suffered injury”.[1] The plaintiff alleges that the injuries he sustained were caused by the negligence of the defendant, its employees or agents. At the time of his alleged accident, the plaintiff was employed by the defendant at the defendant’s premises in Young Street, Mooroopna.
[1]Paragraph 4 of the plaintiff’s statement of claim.
By its defence, the defendant denies that it was negligent and, in the alternative, alleges that the plaintiff was guilty of contributory negligence.
On 1 May 2012, a jury was empanelled to hear this proceeding. On that day, the plaintiff’s case was opened, the plaintiff gave evidence-in-chief and he was cross-examined for an hour and 15 minutes.
On 2 May 2012, the plaintiff’s treating orthopaedic surgeon, Mr Hillier, was interposed. Mr Hillier’s evidence took an hour and a half, before the plaintiff was re-called to continue being cross-examined. After being cross-examined for a further half an hour, senior counsel for the plaintiff made complaint that the plaintiff had been “dead set ambushed”.
Ultimately, after opportunities were given to the parties to obtain instructions, the plaintiff applied to discharge the jury. After hearing submissions, I acceded to that application and gave very brief reasons for so doing. Additionally, I said I would provide more detailed reasons in due course. These are those reasons.
Background to the application
In his statement of claim, the plaintiff pleaded the accident he alleges in the following terms:
“4. On or about the 18th day of May 2004 while working in the course of his employment by the defendant at [premises occupied by the defendant in Young Street Mooroopna], the plaintiff tripped upon a broom situated upon a platform surround as a result of which he twisted his back and fell very awkwardly and thereby suffered injury.”
In paragraph 5 of his statement of claim, the plaintiff pleaded that his injuries were caused by the negligence of the defendant. The following particulars of negligence were pleaded:
“(a) Failing to instruct or properly instruct the plaintiff.
(b) Failing to provide the plaintiff with any or any adequate supervision.
(c) Failing to provide the plaintiff with any or any adequate equipment.
[There is no particular (d)].
(e)Failing to carry out any or any adequate risk assessment of the task required of the plaintiff.
(f) Failing to remove the said broom.
(g) Failing to warn the plaintiff of the danger of the said broom.
(h)Permitting the said broom to remain in a position in close proximity to –
(i) machinery;
(ii) the platform upon which the plaintiff was working.
(i)Failing to provide any or any adequate receptacle into which the said broom could be placed.
(j)Permitting the said broom to remain laying (sic) loose upon a platform where the plaintiff was employed.
(k)Failing to provide any or any adequate container and/or attachment into which the said broom could be placed.”
On 19 September 2007, the plaintiff’s solicitors wrote to the defendant’s solicitors in the following terms:
“We are required to undertake a view of the area/premises in which our client sustained injury.
Kindly provide us with convenient dates and times for the required view to take place.
We look forward to hearing from you.”
The defendant’s solicitors did not reply to the plaintiff’s solicitors’ letter of 19 September 2007.
On 24 September 2007, the plaintiff’s solicitors wrote to the defendant’s solicitors in the following terms:
“We refer to our letter dated 19 September 2007.
We require a view of the premises at where our client suffered injury, the subject of his WorkCover claim.
Kindly provide us with convenient dates and times for the view to take place.”
The defendant’s solicitors did not reply to the plaintiff’s solicitors’ letter of 24 September 2007.
On 26 May 2008, the plaintiff’s solicitors again wrote to the defendant’s solicitors. The relevant part of this letter provided:
“Furthermore, we require a view of the defendant’s premises. Kindly provide us with convenient dates and times for the view to take place.
We look forward to hearing from you.”
No written reply was made by the defendant’s solicitors to the plaintiff’s solicitors’ letter of 26 May 2008.
On 1 March 2011, the plaintiff served an order 44 statement of Richard Lightfoot, a consulting engineer. In that statement, under the heading “Layout of the premises”, Mr Lightfoot stated:
“Your client provided a schematic of the layout of the premises. Stock was transferred from the warehouse. It was placed on conveyors and each layer of canned product was separated by a cardboard layer. When getting material ready for re-packing and labelling, workers first had to remove the top cardboard layer. If this cardboard was in good condition, it was dropped onto a cardboard pile. As each subsequent layer of product was removed, the cardboard spacer was removed. Whilst facing the conveyor, your client had to check the cans for excessive damage or indeed ‘blown’ cans. ‘Blown’ cans were cans that had not sealed properly and their contents had rotted resulting in the swelling of the cans. These damaged cans had to be dropped into a rotten fruit bin while other damaged cans that were still intact were then packed into cardboard cartons on a pallet so they could then be sold as ‘damaged stock’.
Once the stock had left the initial conveyor and moved to another conveyor past a long platform, your client walked along and checked for any other damaged product or product that fell from the conveyor. The stock then passed the labelling machine and then an inspection, were packed in cartons and finally to a stacker where once the pallets were filled they were removed by forklift.
Your client instructs that there were two brooms. One adjacent to the input section on the ground floor. This broom had a broom holder and was used to push off rotten containers that the magnet separating plate would not lift off. The second broom with no broom holder was placed against the handrails of the platform adjacent to the conveyor. This broom was used to clean the upper deck level and at times this broom was used to straighten up the layers of used cardboard.”
Under the heading “Cleaning up duty”, Mr Lightfoot went on:
“Your client was also required to clean up under the machine for any damaged or ‘blown’ cans so that the pallet unloading mechanism operated correctly and came down to the lower level to allow the full pallets to be loaded.”
Under the heading “Assessment”, Mr Lightfoot stated:
“From your client’s description of the work that he undertook, the frenetic pace that he indicates that workers were required to adopt because of the limited workforce and the volume of material that had to be processed, this meant that safe access and egress needed to be provided. It was evident that had a suitable holder been provided then this would have ensured that the broom on the upper level was stored in a safe location.”
Additionally, under the heading “Inspection”, Mr Lightfoot stated:
“The writer believes that the workplace needs to be inspected if the matter proceeds to trial. It is necessary to ensure that photographs are taken to illustrate the size of the production facility and diversity of tasks your client performed, the narrowness of the walkway, the potential of a tripping hazard in the case of the broom falling and now the location of the broom holder [this was a reference to a second broom holder which the plaintiff alleges was installed after 18 May 2004].”
During the course of opening the plaintiff’s case on liability, Senior Counsel for the plaintiff said:
“Now what happened to the plaintiff? Well, on 18 May 2004 while working afternoon shift the plaintiff was employed to work on what is known as the depalletizer it is called and the plaintiff will give you some evidence about that and tell you what it was and how it worked and what his job was. But in opening this case to you I would like to try and give you some information that will help you understand what the evidence will be that the plaintiff will give in relation to the depalletizer.
But what you might think, Madam Forelady and members of the jury, sounds like a pretty simple event and pretty simple accident in fact was an accident which occurred, we say, because of the system of work that the plaintiff was subjected to. The plaintiff suffered the injury when working on the depalletizer which required him to work on an elevated platform operating a machine which deposited cans of canned fruit in very large numbers, somewhere on the evidence between 150,000 to 300,000 cans a night, so it is a pretty busy job.
While operating the depalletizer, in order to get to a log jam on a conveyor belt in rapid quick time he moved around the corner of the platform and a broom which had been supplied to him to perform various activities and which had been stood up by him against a rail on a platform had slipped somewhat and moved further out into the platform because of the vibrations of the heavy machinery which shuddered and vibrated and caused the broom on this occasion to move its angle from being stood upright like that to further out into the walkway of the platform like that and the platform - the width of the platform was already compromised because of the fact that there were boxes and buckets associated with the production process situated on one portion of the platform so it reduced the width of it and he had to - he will tell you he had to get to this log jam quick - rapid quick, it was his job, because if he didn’t there’s a pile up, stock is damaged and the line has got to be stopped and if the line is stopped the supervisors are there saying to him ‘What in the hell have you stopped the line for?’
So, in the course of moving quickly he has stepped on the broom, it caused him to trip and almost fall, he wrenched and jerked his back as he grasped for the rail to stop himself from falling and in the process of that he suffered an immediate onset of very severe pain in the lumbar spine and down one of his legs.
To help you understand this procedure, I am going to pass up to you a plan which the plaintiff has drawn of his work station, the depalletizer and the conveyor belts associated with it and just slowly explain to you what his tasks were and where things were situated. The reason why there’s a plan and not something more concrete in terms of what existed at the time is because since the Ardmona production ceased and a lot of it was moved to Shepparton, the area of the plant in which the plaintiff was working was dismantled and so it is no longer available to be seen or observed where the plaintiff was working.
So I will pass up to you, members of the jury, six copies of the plan drawn by the plaintiff. I think we have given one to our learned friend and one for His Honour and at the same time, members of the jury, we will pass up the only two photographs which are in existence of this work station and whilst they are helpful to a considerable degree, if there were more photographs I’m sure they would be more helpful but it will help you understand what I’m about to explain to you. …
… I’ll explain to you what the plaintiff would tell you about the system. That big capital H is in fact a hydraulic lifter and the cans are deposited - they come on a pallet and they’re deposited on the lifter and they are lifted hydraulically up to about the mesh belt and the purpose of the procedure is to get the cans inspected as they arrive and then placed on a conveyor to go down the conveyor line down to the far right-hand of the page which is where the labelling machine is situated and the cans are then labelled. Now that is the purpose of the procedure.
So the hydraulic lifter lifts the cans in their clusters of 12 or 24 and then a magnet will – they’ll come on the pallet stacked in clusters, the lifter lifts them to the height of the mesh belt. A big magnet will drop down onto the cans and the magnet then operates so as to move them across towards the mesh belt and deposit them on the mesh belt and then they go down the mesh belt. They come to the corner where a conveyor belt exists and those cans which are not removed because they’re damaged, in that they’re either rusty or dinted or sometimes blown with the contents coming out of them, they get to the conveyor, they go down the conveyor belt. There’s a bottle neck, you’ll see marked, two-thirds to the right hand side of the page, where they’re jammed up, the cans are jammed up and then one by one they come out of that bottle neck onto the conveyor which runs at quite a rapid rate, the last part of the conveyor, straight down into the labelling section where the cans are labelled.
The plaintiff works on the walkway and his job is to run that procedure. His job to remove rusty cans which come out of the warehouse, which is where these cans come from, dented cans which are placed into the gate sales pallet which is on the left hand side of the page in the middle of the three squares. So he has boxes in front of him and if the cans are dinted and still can be sold he puts them in the box and he stacks them on that pallet so they can go to gate sales. If the cans are blown and the contents are exuding from the cans he has got to put them in the blown cans waste bin which you’ll see at the bottom of the page, it’s written upside down, blown cans waste. He has got to put the blown cans in there. When the cans are deposited on the mesh belt he has to remove from them, before the magnet begins to operate, a cardboard top which covers the cans. He has two receptacles to remove that cardboard to, one is where the cardboard is damaged to the extent it can’t be reused and the other is where the cardboard is not damaged where it can be reused. He is to stack the cardboard he removes from each cluster of cans in either one of those two pallets.
His job is to make sure that that procedure runs appropriately, properly and keeps running. It’s an enormous volume of cans that come through there each shift, as I said somewhere between 150, sometimes up to 300,000 cans. His job is to make sure that damaged cans are removed as we have outlined to you, and placed where they have to be placed. If there’s a jam up he has got to attend to it. If there’s problems on the line with the cans he has got to get to it and he has got to get to it quick, he has got to keep that belt running. If he doesn’t there’s questions asked, what is happening up there, what are you doing?
He has also got to make sure the cans are the right way up because they have a code on the lid of them which tells SPC what the fruit is, because the cans are unmarked and the date which they were canned. So he has got to make sure that all the cans are the right way up. He has got to cover a fair bit of territory in the course of his job, as you can see with three sections of it. Sometimes the cans fall to the ground. You will see some stairs on the top left hand side of the page, he has got to go down those stairs, go around to the back of the machinery at the top of the page and get under the machinery to remove the cans. Sometimes when the cans arrive on the pallet they are shrink wrapped or partially shrink wrapped. Sometimes the forklift driver removes the shrink wrap, sometimes he doesn’t. Sometimes even if he does he needs assistance so sometimes the plaintiff goes around to help with the removal of the shrink wrap.
The equipment which is provided to the plaintiff, members of the jury, consists of the following. Two brooms, two ordinary household hair brooms. He will tell you he uses the brooms to perform a number of different activities. One, he uses it as a rake on the mesh belt, if he has to reach across to the far side to get a can. Two, he uses it to sweep the floors. Three, he uses it to bang down the pile of good cardboard, which he will tell you he did very regularly, to knock it into a square and to bang it down so he could keep feeding the good cardboard onto it. He also used to use it to - sometimes when the magnet deposited the cans on the mesh belt not all the cans would detach from the magnet, so he'd use the broom to knock the cans off the magnet onto the mesh belt.
The employer provided two brooms. Funnily enough in this case, despite what we have told you and the evidence we’ll give you, the employer doesn’t even admit – doesn’t even admit - that the plaintiff was provided with a broom or brooms in its defence which it served upon us in the time that led up to this proceeding. So we have to prove the existence of brooms, we will do it because if you look in the top left hand corner you see a walkway, as written. You see a little circle and it’s written upside down by the plaintiff, ‘broom holder’. So there is a broom holder situated in that position. He has got two brooms but, members of the jury, he hasn’t got another holder for the other broom. So the system employed by him and others who worked up there was that they would - for the second broom, they’d lean it against anything that was convenient to lean it against; the rails of the platform, the control panel or anywhere they could lean it. Sometimes he’d lay it on the top of the good cardboard pile because there was nowhere - the defendant provided no receptacle into which the broom, the second broom, could be placed.
Now the plaintiff suffered his injury in the manner in which I’ve told you on 18 May 2004. On 25 May 2004 the defendant, in its occupational health and safety accident incident investigation report, wrote this. This is precisely one week after the plaintiff's accident, signed by a shift manager, supervisor, team leader whose signature we can’t quite decipher but it doesn’t matter. Under the heading of causes, and this document will be tendered in evidence in the course of this case. Under the heading causes of the accident this person has written, this supervisor or manager, ‘Broom left in wrong place, unsafe place.’ Then under the heading of list corrective action for each cause and proposed completion date, ‘Make up broom holders to get the broom in a safe place by 25 May 2004.’
So their investigation reports they are to make up a broom holder to get the broom in a safe place. Indeed, we will call evidence from another witness because the plaintiff did not go back to this work place, we will call evidence from another witness who worked after the plaintiff’s accident. He will tell you that not long after the plaintiff’s accident, probably at about the time that document is written, another broom holder - in fact a broom holder sufficient to take two brooms was welded to the platform of the walkway. At the bottom of the page you will see, the plaintiff has written upside so you'll have to turn your document upside down, ‘New broom holder put there after my accident’, and you will see the circle. In fact there were two broom holders, cylindrical steel pipes, or aluminium, were welded to the walkway so that two brooms could be placed in that position. Until then the second broom was placed anywhere, anywhere at all.
The plaintiff will tell you that this is a pretty chaotic workplace and workstation. He was running hither and thither at times where there were jam-ups and problems with cans exuding their contents. He was running up and down the platform and at times having to move very quickly.
He will tell you that this accident occurred when he was slightly around the corner from where the broom was situated which he fell upon which was somewhere towards the far end of the blown cans waste on the walkway to the right of the blown cans waste where he placed it against the rails of the platform. He will tell you that he was working on the walkway somewhere near the control button attending to one of the pallets along there when he noticed a jam-up further down the line and as he noticed the jam-up he moved quickly to get down to the jam-up to do his job to unjam it to keep the thing running and in the course of that he will tell you that the broom had moved out and in his rush to get there he stood on the broom, tripped and suffered injury in the circumstances we have described.
One of the causes of the broom moving in this case you will be told by the plaintiff and by others - or at least one other - that this whole procedure, this whole mechanised procedure occurred with much shaking and shuddering at times - it happened very quickly, the whole thing just went ‘bang’ and shook and shuddered and it shook everything - everything meaning the distance of the worksite, including the broom - if it had been stood up, often times the broom fell to the floor completely, sometimes it just moved its position as it did on this occasion, but there was a constant problem with the shaking and shuddering of this equipment.”[2] (Emphasis added)
[2]T21.19 – T23.21 and T24.14 – T30.5.
In evidence-in-chief, the plaintiff gave evidence on the issue of liability consistent with the way in which his case had been opened.
On the first day the plaintiff was cross-examined (1 May 2012), the plaintiff was asked some questions about the machine he was operating on 18 May 2004. He was asked and answered the following questions:
“That machine still operates, doesn’t it, in Shepparton?‑‑‑I don’t know if they took it over there or not, I wouldn’t have a clue. All I know, I heard they pulled it down ‑ ‑ ‑
You know don’t you that it was moved from Ardmona to SPC in Shepparton?‑‑‑No I don’t. As far as I knew they were just pulling it down and that was it.
It is called the depalletizer section, isn’t it?‑‑‑That machine is, yes.”[3]
[3]T103.17 - .25.
On the second day he was cross-examined (2 May 2012), a number of photographs of a mesh belt and conveyor lines with cans were put to the plaintiff. In the course of doing this, senior counsel for the defendant put to the plaintiff “We will be adducing evidence that what you see is exactly the same as what you used?”.[4] The plaintiff denied this proposition. During the course of this cross-examination, the plaintiff was heavily challenged about his description of the line and work area and the evidence he gave about these matters in evidence-in-chief. In respect of the photographs tendered by the defendant,[5] senior counsel asserted to the plaintiff, “Those photographs were taken while the machine was operating at lunch time yesterday and what I wanted to suggest to you just so you understand it is that the frequency with which you are saying you got blown cans is an exaggeration”.[6] Notwithstanding the suggestions made to him in cross-examination, the plaintiff maintained that there were material differences between what was shown in the defendant’s photographs and the position as he said it was in May 2004. At this point, senior counsel for the plaintiff made an objection and took issue in relation to the defendant’s discovery. More relevantly, so far as the present application is concerned, senior counsel for the plaintiff went on:
“But further, Your Honour, my instructing solicitor on my instructions he has gone to go and find a file note, asked for a view of this machinery and was told that it no longer exists. Your Honour, words fail me in relation to the production of these photos being put to the plaintiff in this manner in light of the absence of discovery and in light of being told that the machinery no longer exists.”[7]
[4]T152.7.
[5]Exhibits 3, 4, 5, 6 and 7.
[6]T155.21 - .24.
[7]T158.18 - .24.
Subsequently, senior counsel for the plaintiff informed me from the Bar table that his instructing solicitor (Mr Suta) had a clear recollection that he was told by Mr Corridon, the solicitor for the defendant, that a view was impossible because the work area and machinery did not exist.[8]
[8]T163.29 – T164.2.
The plaintiff’s application
In advancing his application to discharge the jury, senior counsel for the plaintiff submitted:
“… [W]e submit, Your Honour, there is no possible way, in view of the way the plaintiff has been cross-examined and in view of the fact that we have been denied the opportunity of examining this equipment, despite our serious endeavours to which we didn’t even receive the courtesy of a reply and as it eventuates, now that the plaintiff has seen the machinery, he says quite massive changes have been made to it which are significant in terms of the way the liability issue is before the court.”[9]
[9]T165.9 - .18.
In essence, the plaintiff wanted the opportunity to properly investigate (both by reference to discovery and additional witnesses) the proposition that the line as shown in the defendant’s photographs was or was not the same as the line as it was in May 2004. The plaintiff contended that he had been denied the opportunity to carry out this investigation by the conduct of the defendant’s solicitors in asserting that the work area and machinery no longer existed.
The position of the defendant concerning what Mr Suta was told can be found in the following exchange:
“HIS HONOUR: Yes. Perhaps I will hear from Mr Rush. Mr Rush, do you concede that Mr Corridon told Mr Suta that the line was not available for inspection?
MR RUSH: No, we don’t, Your Honour.
HIS HONOUR: So if I was to act on that basis you would require Mr Suta to get in the witness box and give some evidence.
MR RUSH: No, I don’t require that at all. I can’t concede it because Mr Corridon doesn’t have a recollection of it, that’s the position.
HIS HONOUR: Then perhaps I will put it another way. You are content for me to act on Mr Suta’s belief without him going in the witness box?
MR RUSH: Yes, I am, Your Honour.
HIS HONOUR: All right, yes, go on.
MR RUSH: I would ask for a little bit more time just so we can fully answer ‑ ‑ ‑
HIS HONOUR: I am more than happy to give you the time you need, Mr Rush, because it seems to me to be a very serious matter.”[10]
[10]T165.19 – T166.6.
A little later in the application, senior counsel for the defendant submitted:
“… [C]an I just say the entirety of the cross-examination in relation to the photographs has not asked one question this morning about a broom. The entirety of the cross-examination was the mechanism with some additional photographs in relation to the way in which the transverse came over, dropped the cans, the belt worked and it went on to a conveyor and whether it was chaos and chaotic - the word that Mr Monti used. That is the only issue.
Now that is an issue that we have attempted - rather than ask for a discharge of the jury yesterday, we have attempted to meet in the course of getting instructions. We wouldn’t have got them in the course in which we got them yesterday but for the opening. It has to be put in that context, Your Honour. There isn’t one pleading in the statement of claim that would indicate that the plaintiff was working under pressure of work, that he made a complaint, that it was chaotic. It is all related to a broom handle.”[11]
[11]T166.17 – T167.4.
Senior counsel for the defendant went on:
“… [W]e have a case about a broom and a broom holder. … And not a case of a system of work was such that it required me to run around as though it didn’t matter. That has never been a case that has been put anywhere, either to Mr Lightfoot in instructions or anywhere else, not put. To at this stage be saying - to be complaining in the sense of something that came into operation, on the best we can understand it, in 2008 at SPC - not in 2007 and was news to our instructors when we made the enquiry that it was in operation yesterday, that is how this matter developed.”[12]
[12]T167.22 – T168.3.
Resolution of the plaintiff’s application
The present case was one where the plaintiff’s solicitors wanted a view of the relevant work area and equipment. They conveyed this wish to the defendant’s solicitors in no less than three letters, none of which were responded to. It is apparent from the material that at some time between 26 May 2008 and 1 March 2011, Mr Corridon told Mr Suta that the relevant work area no longer existed. Indeed, on 1 March 2011, Mr Suta wrote to the plaintiff enclosing a copy of Mr Lightfoot’s report of 22 February 2011, and stated:
“You will see that Mr Lightfoot indicates that an inspection of the work area is required. That is of course not possible given that the work area as it was, no longer exists.”
The communication by Mr Corridon to Mr Suta that the work area no longer existed was, to say the least, unfortunate in the circumstances of this case.[13] The failure to rectify this incorrect statement at any time before cross-examination of the plaintiff commenced was even more unfortunate.
[13]I should say for the sake of completeness that on 3 May 2012 (after hearing evidence from the plaintiff’s general practitioner Dr Leffler), junior counsel for the defendant stated from the Bar table that he was instructed by Mr Corridon to say that Mr Suta’s recollection of matters was likely to be correct as it accorded with instructions Mr Corridon had received from his client.
The defendant resisted the plaintiff’s application on the basis that the plaintiff’s claim as pleaded was confined to a dispute about a broom and a broom holder. It was put by the defendant that, so confined, all of the plaintiff’s evidence about the work area and the work process was irrelevant. It was then said that, rather than the defendant asking for a discharge of the jury on the plaintiff’s opening (or during his evidence-in-chief), the defendant attempted to meet the case.
I reject those submissions. While it is true that there are no particulars of negligence alleged in the statement of claim concerning the system of work, the speed of the work process or any lack of assistance, on the pleadings there was always a real likelihood of evidence being given about both the general state of the work area and any reasons why the plaintiff may have been distracted from, or did not see, the broom. Common law pleadings in personal injury cases are frequently drawn at a high level of generality, and without reference to individual scene setting, or background, facts. So much is demonstrated by the defendant’s defence in this case which contains some uninformative particulars of contributory negligence (if they can be called particulars) such as “failing to take care of his own safety” and “failing to use his commonsense”.
In any event, even on the pleadings, the work area and system of work could not have been thought by the defendant to be irrelevant. The defendant’s particulars of contributory negligence also include the following:
“(v)if the work caused him any difficulty then failing to notify his superior of the same;
(vi)if he required assistance then failing to notify his superior of the same;”
Further, even if there could have been any doubt in the minds of the defendant’s solicitors as to the boundaries of what was relevant on the pleadings, the issue was put beyond doubt when they were served with Mr Lightfoot’s order 44 statement (extracts of which I have set out above). In the light of the pleadings and the material served prior to trial, the plaintiff was entitled to open and present the case that was in fact put. Any application for a discharge as suggested by senior counsel for the defendant would have been bound to fail.
By asserting that the work area no longer existed, the defendant denied the plaintiff an opportunity to properly investigate and pursue his claim in accordance with the rules. While Senior Counsel for the plaintiff described what had occurred as a “dead set ambush”, it is sufficient for me to repeat what I said when I discharged the jury. In my view, the plaintiff has been unfairly taken by surprise as a result of what has occurred, and has been unfairly denied the opportunity to properly prepare and present his case on liability.
The question then arose as to the further hearing and determination of this proceeding. Senior Counsel for the plaintiff submitted:
“We say that this is a jury case and it should proceed with a jury. On the basis of the opening of my learned friend and the chaos and the like there is now, from our perspective, to answer the case that is being put against us in the course of events we have some work to do, so it is not ready to proceed from our point of view. We can’t provide the engineering drawings. We want to go back now and find the material in relation to production lines of 2004. We will, we understand, have a complete answer to the plaintiff’s case.”[14]
[14]T171.1 - .11.
As both sides wanted time to further investigate matters, and having regard to what I have said above, I concluded that it was appropriate to discharge the jury. However, I also concluded that the valuable time and resources that had been expended in trying the case to its present position would not be wasted. In the circumstances, I ordered the jury to be discharged and the matter to proceed as a cause before me (with any evidence that could be taken during this circuit being taken, and the balance of the proceeding being heard in Melbourne).
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