Mayne v M T T (No 1)

[1991] TASSC 81

Serial No 65/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Mayne v M T T (No 1) [1991] TASSC 81; A65/1991

PARTIES:  MAYNE
  v
  M T T

FILE NO/S:  62/1982
DELIVERED ON:  23 August 1991
JUDGMENT OF:  Underwood J

CATCHWORDS:

Evidence — Course of Evidence — Re-opening case view not evidence — Oversight by counsel not calling evidence to prove what was seen on view — Factors relevant to discretion.

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  A65/1991
Number of paragraphs:  5

Serial No 65/1991
List "A"
File No 62/1982

MAYNE v THE M T T (NO 1)

REASONS FOR JUDGMENT  UNDERWOOD J

23 August 1991

1. This application to reopen the plaintiff's case to call further evidence was made after the defendant's submission that there is no case to answer and election to call no evidence. No ruling has been given upon the submission of no case to answer.

1. The evidence sought to be led is the visibility of the plaintiff to the defendant's driver as he drove the bus along the street towards the point of impact. I have a discretion to grant the application. The existence of a general discretion to allow evidence to be given "late in a cause" was recognised in Williams v Davies 149 ER 481 at p482. There is no basis for suggesting that the exercise of the discretion is subject to any specific constraints. See Nicholl & Breeze v Bower 117 ER 1090. The justice of each case will dictate the appropriate manner in which the discretion should be exercised. I reject any suggestion that cases such as Watson v Metropolitan (Perth) Passenger Transport Trust [1965] W.A.R. 88 and Schuster v Sawtschenko (No 2), Chambers J 10/70 lay down criteria which must be satisfied before the application can be granted. All the circumstances of each case must be taken into account. This is illustrated by Hughes v Hill [1937] SASR 285 in which case the determining factor was the deliberate decision made during the course of trial not to call the evidence that was later sought to be called after the defendant had given evidence. In that case Cleland J said at p287:

"In any case in which evidence had been omitted through inadvertence, or which was not known to the plaintiff's counsel and could not by due diligence have been discovered before he closed his case, I would not hesitate to allow further evidence to be given ..."

1. The defendant opposed the application. Learned counsel submitted that if the order sought is made the defendant will suffer prejudice because an election was made to call no evidence and he had ready a witness from Queensland whom he sent away uncalled.

1. The defendant also submitted that if the application is allowed, the defendant would be deprived of an opportunity to win the case on the submission of no case to answer. It was contended that the thrust of the submission of no case was that there was no evidence of the movements of either the bus or the plaintiff in the moments immediately prior to impact and that this submission encompassed the matter about which the plaintiff now wishes to adduce evidence. It was submitted that the defendant's no case submission alerted the plaintiff to the need to call the evidence she now seeks to call. The following matters are relevant to the exercise of my discretion:

1There was no evidence of the movements of either the bus or the plaintiff in the moments immediately prior to impact and the defendant's submission that there was no case to answer was founded on this proposition.

2Granting the application now made will not entitle the plaintiff to adduce any evidence of the movements of either the plaintiff or the bus in the moments immediately prior to impact.

3There was evidence from which an inference could, not should or ought, be drawn that the defendant's servant did not see the plaintiff prior to impact.

4There was evidence from which an inference could be drawn that the slightest evasive action by the bus would have avoided the collision.

5It follows from the last two matters that the opportunity of a prudent driver, situated as was the defendant's driver as he approached the scene of the accident, to see the plaintiff playing on a bicycle is an important consideration on the issue of a breach of the duty of care he owed the plaintiff.

6It was not part of the defendant's submission that there was no evidence of this. It was raised by me with the defendant's counsel during the submission of no case to answer. Until I drew attention to the absence of this evidence learned counsel for the defendant was proceeding on the basis that there was evidence in the form of the view of the scene which I took during the course of the trial.

7This view enabled me to form some perception of the view a prudent driver would have had of the car park in which the plaintiff had been riding her bicycle and the street ahead on the side of which were standing at least two and perhaps three pedestrians. However, because counsel agreed that the view was not to be taken as evidence I could not take into account that which I saw. However, P1, an aerial photograph, prima facie indicates that there was nothing to restrict that view into the car park.

8I am satisfied that the failure to adduce the evidence of the view of a driver in the position of the defendant's driver was entirely due to inadvertence.

9Had this application been made at the end of the plaintiff's case but before the defendant had been put to its election there is no doubt that the justice of the case would have required that it be granted.

10Provided the defendant is no longer bound to its election, the justice of the case still requires that the application be granted. Once the defendant is freed from the election it made and permitted to call any evidence it wishes, no prejudice will result from an order granting the application. It was not submitted that the conduct of the defendant's case prior to making an election to call no evidence and the submission of no case to answer was in any way affected by the absence of the evidence now sought to be called.

1. In the circumstances therefore, the application will be granted. The plaintiff is given liberty to adduce evidence with respect to the view which was open to a driver approaching the point of impact along Currajong Street at the relevant time. At the conclusion of that evidence the defendant is given leave to adduce any evidence it wishes to adduce or to make any submissions it wishes to make. Accordingly, it is not appropriate to make a ruling at this stage on the submission of no case to answer. If such a submission is made again, after the conclusion of the further evidence for the plaintiff, it will have to be considered in the light of all of the evidence that the plaintiff adduces.