O'Callaghan v Murray River North Pty Ltd
[2006] WASCA 179
•7 SEPTEMBER 2006
O'CALLAGHAN & ANOR -v- MURRAY RIVER NORTH PTY LTD [2006] WASCA 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 179 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:23/2005 | 22 MAY 2005 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 7/09/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | MICHAEL DENIS O'CALLAGHAN CGU INSURANCE LTD MURRAY RIVER NORTH PTY LTD |
Catchwords: | Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3, s 7(5) |
Case References: | Wyong Shire Council v Shirt (1980) 146 CLR 40 Brandi v Mingot (1976) 51 ALJR 207 Claremont Petroleum NL v Cummings (1992) 110 ALR 239 Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350 Grays Haulage Co Ltd v Arnold [1966] 1 All ER 896 Hooi v Brophy (1983) 52 ALR 710 John T Ellis Ltd v Walter T Hinds [1947] 1 KB 475 Kuligowski v MetroBus (2004) 220 CLR 363 March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 McDermott v Australian Associated Motor Insurers Ltd (1983) 2 ANZ Cas 60536 Meridian Global Funds Management Asia Ltd v Securities Commission (1995) 1 AC 500 Modbury Shopping Centre v Anzil (2000) 205 CLR 254 Mulcahy v The Motor Vehicle Insurance Trust (1981) ANZ Ins Cas 60453 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Rickards v Lothian (1913) 16 CLR 387 Smith v Leurs (1945) 70 CLR 256 Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16 Vines v Djordjevitch (1955) 91 CLR 512 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'CALLAGHAN & ANOR -v- MURRAY RIVER NORTH PTY LTD [2006] WASCA 179 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- First Appellant (First Defendant)
CGU INSURANCE LTD
Second Appellant (Second Defendant)
AND
MURRAY RIVER NORTH PTY LTD
Respondent (Third Party)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : VAN DER WEGEN -v- O'CALLAGHAN & ORS [2005] WADC 26
File No : CIV 1228 of 2002
(Page 2)
Catchwords:
Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3, s 7(5)
Result:
Appeals dismissed
Category: A
Representation:
Counsel:
First Appellant (First Defendant) : Mr C L Zelestis QC
& Ms C L Mould
Second Appellant (Second Defendant) : Mr C L Zelestis QC
& Ms C L Mould
Respondent (Third Party) : Mr D R Williams QC
& Mr R E Keen
Solicitors:
First Appellant (First Defendant) : Lavan Legal
Second Appellant (Second Defendant) : Lavan Legal
Respondent (Third Party) : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Brandi v Mingot (1976) 51 ALJR 207
Claremont Petroleum NL v Cummings (1992) 110 ALR 239
(Page 3)
Douglas-Brown v Commissioner of Police (1995) 13 WAR 441
Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350
Grays Haulage Co Ltd v Arnold [1966] 1 All ER 896
Hooi v Brophy (1983) 52 ALR 710
John T Ellis Ltd v Walter T Hinds [1947] 1 KB 475
Kuligowski v MetroBus (2004) 220 CLR 363
March v E & MH Stramere Pty Ltd (1991) 171 CLR 506
McDermott v Australian Associated Motor Insurers Ltd (1983) 2 ANZ Cas 60536
Meridian Global Funds Management Asia Ltd v Securities Commission (1995) 1 AC 500
Modbury Shopping Centre v Anzil (2000) 205 CLR 254
Mulcahy v The Motor Vehicle Insurance Trust (1981) ANZ Ins Cas 60453
Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679
Rickards v Lothian (1913) 16 CLR 387
Smith v Leurs (1945) 70 CLR 256
Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16
Vines v Djordjevitch (1955) 91 CLR 512
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
(Page 4)
1 WHEELER JA: These two appeals arise out of a claim by Mrs Van Der Wegen for damages for personal injuries she suffered in a motor vehicle accident at Christmas Island in 2001. A vehicle driven by the first appellant, Mr O'Callaghan, rolled over. She was a passenger in it. It was alleged that Mr O'Callaghan drove whilst so affected by alcohol as to be unable safely to operate the vehicle. Mr O'Callaghan admitted his negligence. There was an allegation in relation to contributory negligence by Mrs Van Der Wegen, with which it is not necessary to deal. The respondent, Murray River North Pty Ltd ("MRN"), is a builder which was doing building work on Christmas Island in 2001. Both Mrs Van Der Wegen and Mr O'Callaghan were members of its workforce. MRN was the hirer of the vehicle Mr O'Callaghan was driving at the relevant time.
2 Mr O'Callaghan claimed contributory negligence against MRN. He alleged that MRN owed a duty of care to Mrs Van Der Wegen, the breach of which caused or contributed to the accident. In broad, the allegation was that MRN was negligent in failing to prevent vehicles it hired being driven by its employees and subcontractors while under the influence of alcohol, when it knew or ought to have known that they were being driven by drivers who had consumed alcohol.
3 CGU, the second appellant, claimed that MRN, being the hirer of the vehicle, was relevantly an owner of it under the policy of insurance issued by CGU and that MRN was in breach of a warranty in that policy because the vehicle was driven by Mr O'Callaghan while he was under the influence of intoxicating liquor. It therefore alleged that, pursuant to the terms of the policy and s 7(5) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), it can recover from MRN any sums it has paid or is liable to pay Mrs Van Der Wegen.
First appellant's claim against the respondent
4 This appeal concerns the application of well established principles. In the often quoted words of Mason J (as his Honour then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The
(Page 5)
- perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probably of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action .... "
5 The trial Judge made the following findings of fact, all of which were supported by the evidence. Each team of workers had its own vehicle. The allocation of a vehicle to each team was not done in any formal way, but each team made arrangements to ensure it had a vehicle and ensure that it was available for the team's use.
6 The entertainment and social interactions on Christmas Island included visiting taverns. There were other activities available such as golf, fishing and swimming. However, conditions on Christmas Island were "not easy". As I understand it, his Honour was referring to the evidence that it was hot and humid, and that entertainment opportunities were limited, although there were sporting activities of the type described by his Honour, and there were lounges and televisions available in a recreation room.
7 The evidence did not establish that it was the practice among members of the MRN workforce to consume alcohol to excess, or to drive while under the influence of alcohol. There was evidence that some people had been seen to drive after consuming alcohol.
8 There was a range of evidence from members of the workforce about what arrangements, if any, existed for a "skipper" or driver who did not drink when members of the workforce took a vehicle to a tavern. His Honour did not draw an overall conclusion from that evidence, but summarised it. There was evidence suggesting the use of an informal skipper system, in at least some teams, with some regularity. There was also evidence that some people were available to go to a tavern to pick up people who had been drinking if they needed a lift. Of the range of evidence on this topic, his Honour was satisfied that Mr O'Callaghan's evidence, which was that it was the usual practice for members of his team to go to a tavern after work each day and that no arrangements were made for a driver not to drink, was the "least accurate".
9 In relation to the use of vehicles, it seems not to have been in dispute that there were at least occasions on which keys were left in a vehicle by whoever had been driving it, so that the opportunity was there for others to take it. There seems to have been no evidence of any occasion, other than the one giving rise to this appeal, on which a vehicle was taken
(Page 6)
- without permission. There was a range of evidence referred to by his Honour to the effect that if a member of a team wanted to use a vehicle, he would have to ask a supervisor.
10 The vehicle in question on this evening had been driven to the Christmas Island Club by Mr Berry, a supervisor. He had consumed one beer, and had told some members of the workforce that he would take them back to the accommodation, if they wished. However, the vehicle was taken from the Christmas Island Club, by Mr O'Callaghan, without Mr Berry's permission.
11 There was a memorandum issued by MRN on 15 January 2001 which read as follows:
"MEMO
TO ALL MURRAY RIVER NORTH EMPLOYEES AND SUBCONTRACTORS ON CHRISTMAS ISLAND
FROM RICHARD MACHELL
DATE 15 January, 2001
RE Policy on the use of MRN Vehicles on Christmas Island
1 Vehicles are available for use for work purposes only, in consultation with MRN Site Supervisor.
2 Vehicles may be made available for use in non working hours at the discretion of MRN Site Supervisor, subject to the following conditions-
• Approval must be obtained from MRN Site Supervisor prior to proposed use[.]
• Vehicles may not be used by a person who has consumed or may be affected by alcohol[.]
• Any damage sustained to the vehicles will be repaired and paid for by the borrower, regardless of the reason for the damage.
• Oil, fuel and Water etc are the responsibility of the user to check, as is the condition and use to which vehicles are put. Damage resulting from a failure to check vehicles prior to use will be the responsibility of the borrower.
- • Vehicles must be driven in a responsible manner, bearing in mind that they are leased by Murray River North.
- It is also noted that vehicles may be hired through Soong Car Rental for those persons unable to comply with these requirements."
12 His Honour found that MRN did not monitor closely whether that memorandum was complied with. However, his Honour found that "there was no obvious and blatant disregard" of the memorandum, even by Mr O'Callaghan's team. His Honour concluded that there was nothing to suggest that MRN knew or ought to have known that its vehicles were being driven by members of the workforce while they were under the influence of alcohol.
13 The first appellant asserts that establishing breach of MRN's duty of care did not depend on proving that it knew or should have known that workers had driven vehicles when too intoxicated to do so safely. The first appellant asserts that, given the obvious dangers of allowing vehicles to be used for group visits to taverns, there was a breach of duty of care by MRN because it did "nothing effective" to mitigate those dangers. The first appellant submits that the dangers should have been mitigated in a number of ways. One method which was mentioned, but was not pressed on appeal, was the provision of a bus or taxi service. Another was the institution of a "skipper system", and another was by ensuring that supervisors enforced any requirement to obtain permission before driving a vehicle, in particular by ensuring that the practice of leaving keys in vehicles ceased.
14 It was the first appellant's submission that it was only necessary to prove that there was a "serious danger" that a person would consume alcohol to excess and drive, for the first appellant to establish liability. However, as the passage quoted from Wyong Shire Council demonstrates, it is not enough, to establish liability, to prove that a danger is foreseeable. In the present case, it can be accepted that it is plainly foreseeable that when persons visit taverns, they will sometimes drink, and may do so to excess. It is plainly foreseeable that if vehicles are available to them, they may drive having consumed alcohol to excess. However, it is necessary to consider the likelihood of the risk materialising, the severity of possible consequences, and what measures may be taken to reduce or remove the risk.
(Page 8)
15 The severity of possible consequences does not require consideration in this case. The dangers inherent in driving a vehicle having consumed alcohol to excess are well known.
16 As to the likelihood of the risk materialising, there was evidence that some people had driven vehicles after having consumed alcohol. There was no evidence that, prior to this occasion, anyone had driven a vehicle after consuming alcohol to excess. The findings to which I have referred suggest, on the contrary, that, by and large, members of the workforce, as one would expect of adults who understand the obvious danger, had taken steps directed to ensuring that it was not "necessary" for anyone to drive after having had too much alcohol.
17 The first appellant's submissions in this respect boil down to the following submission, which was made in broadly similar terms more than once by the first appellant's counsel:
"That's the scene, that there are 35 men, these are hot, humid, shocking conditions, 45-degree days, conducive to the development of a thirst of the kind that Australian men were [sic] typically satisfied with several hours at the tavern drinking beer and the like."
18 That is, at bottom, an appeal for judicial notice to be taken of the prodigious "thirst" of Australian working men which is part of the nation's folklore. I do not think it is permissible to make such an assumption. So far as the men in this workforce were concerned, the evidence was that most consumed alcohol moderately, that some consumed it to excess, and that some consumed it not at all. There was no evidence that any members of the workforce had previously been irresponsible in their mixing of alcohol and driving.
19 The evidence that some men had driven after drinking does not establish that those men had driven while incapable of controlling a vehicle or while their ability to do so was impaired. Rightly or wrongly, it is accepted in the community that, although it is preferable not to drive after consuming any amount of alcohol, limited consumption is not incompatible with the proper control of a vehicle. The questioning of the witnesses by counsel for the appellants was carefully confined to the issue of whether any men had been seen to drive after having consumed alcohol. The issue of whether any person had driven while apparently incapable of doing so properly was not explored (for example, AB 255).
(Page 9)
20 In short, it is probably correct to assert, as the first appellant does, that it is inevitable that in a population of men who visit taverns and have access to vehicles, one, or some, of them will at some time consume alcohol to excess and drive after having done so. That is particularly so, because of alcohol's well recognised ability to impair judgment. However, there is nothing to suggest that the risk was any more likely to materialise in this group of men than in any other group of generally responsible adults, and what evidence there was pointed to a contrary conclusion.
21 Accepting that there was a risk of the kind I have described, the question then arises of what should have been done about it by the respondent in addition to the circulation of the memorandum to which I have referred. Here, too, the first appellant faces considerable difficulty. The suggestion that a bus or taxi service should have been made available was not pressed, no doubt because there seems to have been no evidence about the possible expense of such a service or its likely usage. In relation to this latter question, it is not clear how such a service would have been superior to the informal provision of driving services by those men who did not drink and who were known to be available for picking others up if necessary.
22 In relation to the requirement that supervisors be required to keep control of keys of a vehicle, or to designate some responsible person to do so, there are a number of obvious difficulties. One is that, as counsel for the first appellant conceded, it is not always easy to ascertain whether another person has consumed alcohol, or has done so to excess. In this case, for example, Mrs Van Der Wegen's evidence was that there was nothing in the first appellant's behaviour to suggest that he was intoxicated or unable to control a vehicle. The position changed when she later observed his driving erratically and observed him avoid a breathalyser (AB 19). It appears that he may have been driving because the person who often was the driver of a group of people (because that person did not drink very much) had on this occasion been drinking to excess (AB 80, 136 - 137). Supervisors presumably would be required to carry out or institute some reliable system of breathalyser testing, or something of that kind.
23 As to the way in which a permission system would have worked, that was explored with counsel for the first appellant in the following exchange:
(Page 10)
- "WHEELER JA: ... How would the supervisors enforce a permission system? Would that mean they wouldn't be able to drink?
ZELESTIS, MR: By keeping the keys in their pockets.
WHEELER JA: And they wouldn't be able to drink.
ZELESTIS, MR: They would have to arrange a skipper for themselves.
WHEELER JA: It goes further than that because they would have to ensure that they weren't so affected themselves by alcohol as to not be able to judge correctly whether to give permission.
ZELESTIS, MR: They could either decide that they were or weren't going to drink or only going to drink a little. The first thing they needed to do is to keep the keys in their pockets, so that vehicles weren't just left with keys in the ignition for any worker to go for. … "
24 It is clear that such a system would not remove the potential for alcohol-impaired judgment. A potential risk would be that supervisors themselves may drink to the extent that they would be unable to control vehicles effectively or to make accurate decisions as to whether or not anyone should be allowed to use a vehicle. Further, there seems to have been no exploration in the evidence of how many supervisors there were, whether it would have been practical to require them not to consume alcohol at all, or whether it would have been possible to institute some sort of roster system so that there was always a supervisor who did not consume alcohol, and so on. The position is complicated by the fact that the evidence established that there were a number of taverns at which alcoholic beverages were consumed, and that alcohol was sometimes taken on excursions such as picnics.
25 Similar observations may be made in relation to the suggestion that there should have been a formal "skipper" system instituted. While the suggestion is superficially appealing, that also was explored with counsel, who said the following:
" … The second thing is that they could have instituted a more formal skipper system on a Friday evening of designating
(Page 11)
- somebody to be the driver and keeping the keys in the pocket, so the system wouldn't break down.
WHEELER JA: When you say they should have instituted that system, how would that have been instituted?
ZELESTIS, MR: The company should have insisted that the supervisors be responsible for such a system. It had to come from above the individual supervisors. We don't say that the team supervisors had to invent the system. It should have been designed and insisted upon by the senior management, Mr Machell and Mr Best.
BUSS JA: Would that have required the team supervisors to have attended the tavern on a regular basis, because presumably the tavern was not only frequented on Friday but would that mean in essence that when a group of men or some men or maybe even one man wants to go to the tavern, he has to be accompanied by the supervisor who remains there until a group of men are ready to leave and go home?"
26 This last question was not addressed. Rather, counsel returned to an allegation that there was a particular problem with Friday nights, so that even if the measures which he suggested were not practicable to be enforced at all times, there should have been some particular system relating to Friday nights. It is convenient now to deal briefly with that question. It does not appear that any particular stress was laid before his Honour upon the allegedly peculiar nature of Friday nights. Certainly his Honour gave it no separate consideration in his reasons for decision.
27 It is not clear why Friday night should have been a night of particular significance, since the evidence was that Saturday was a working day. Having read all of the evidence referred to in par 6 of the first appellant's written submissions, which deal with this issue, it is my view that there was no practice established by the evidence whereby on Friday nights most of the workforce, or any considerable number of them, went to the Christmas Island Club, or anywhere else, either for the purpose of consuming considerable amounts of alcohol, or at all. The witness Mr Morgan, expressly denied that Friday was different from other nights. Some witnesses, such as Mr Berry, said that there was "a bit of a practice" for people to go to the Christmas Island Club on Friday nights (in Mr Berry's case in response to a leading question). The evidence of the first appellant himself was simply that he went to the Christmas Island
(Page 12)
- Club on a regular basis on Fridays. He said "the team" (that is, the particular team he worked in) went there, but his evidence was also that on other nights they went to a different tavern. So far as remaining there on Friday was concerned, his evidence was that some would stay at the Christmas Island Club for a meal, some would go to other taverns, and some would apparently go back to their accommodation for the evening meal which was provided there. In my view, there was no "practice" in relation to Friday nights to which it was necessary for his Honour to have regard.
28 I would dismiss the first appellant's appeal.
Appeal by the second appellant
29 The Motor Vehicle (Third Party Insurance) Act 1943 (WA) provides (s 7(5)) that where an insured has committed any breach of any term, condition or warranty of a policy, the insurer (here, the second appellant) may effect a recovery from the insured person liable in respect of any such accident and from the owner. The third party, as hirer, is deemed to be the owner for these purposes (s 3). The policy is in the form set out in the schedule to the Act and the warranty is in the following terms:
"The owner warrants that the vehicle will not be -
a) …
b) …
c) driven by or in charge of himself or any other person who is … under the influence of intoxicating liquor.
It shall be a defence to any action in respect of the warranty contained in subclause (c) [of the Schedule to the Motor Vehicle (Third Party Insurance) Act 1943] if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent."
30 It was common ground on the pleadings that the warranty was breached (AB 34). The second appellant's case at trial was not that there was any specific knowledge on the part of MRN of Mr O'Callaghan being drunk on this occasion, nor was it that there was evidence that any director or officer of MRN specifically condoned this particular incident.
(Page 13)
31 The heart of the second appellant's submissions in relation to this ground appears to be that found in pars 23 through to 25 of its written submissions which read as follows:
"23. The judge's finding was effectively based upon the finding that it had not been proved by the second appellant that it was the practice of the respondent's workers to drive while under the influence of alcohol or that the respondent was aware of any such practice: [95], AB1/131. This approach was erroneous.
24. A failure by one party to prove an alleged fact is not the same as proof by another party that the alleged fact did not occur: Kuligowski v MetroBus (2004) 220 CLR 363 at 385 - 6 [60].
25 The onus of proving the defence was upon the respondent."
32 In that context, the second appellant submits that, on the proper construction of the defence to breach of the warranty, reckless disregard of the prospect that a vehicle will be driven by an intoxicated person precludes proof of absence of knowledge or consent. There is an issue, which is not entirely clear on the authorities, concerning the extent to which it is open to impute knowledge by reason of "reckless disregard" once an absence of actual knowledge or consent has been proved. However, having regard to the facts of this case, it is not necessary to consider that issue.
33 The difficulty with this appeal is that the assertion in par 23 about his Honour's approach is not correct. His Honour's reasons make it clear that he was positively satisfied that MRN did not know and that there was no reason why it ought reasonably to have known that its requirement that the drivers of vehicles hired by it not drive under the influence of alcohol was not complied with ([111]). Although his Honour's reasons in relation to the breach of warranty claim are briefly expressed, it seems to me that they are capable of being supported by the detailed reasons which he gave in relation to the practices surrounding the use of vehicles and the consumption of alcohol.
34 Further, the concept of "reckless" disregard of the prospect that a vehicle will be driven by an intoxicated person, requires that the person said to be reckless be aware of the risk and either take no steps, or take inadequate steps, to prevent the risk from materialising. For the reasons
(Page 14)
- that I have given, there is, of course, always a risk that persons who have access to vehicles at places where alcohol is consumed may drive those vehicles while under the influence of alcohol. However, having regard to the evidence and the findings which I have described, it was, in my view, open to his Honour to conclude that MRN's issuing of the memorandum quoted, and its requirement that persons wishing to use vehicles seek permission, were adequate steps to prevent the risk from materialising and were steps which had the result that MRN could not be found to have recklessly disregarded the prospect that one of its vehicles would be driven by an intoxicated person.
35 The second appellant also submits that the respondent's staff who were responsible for controlling the use of vehicles "constituted relevant agents whose knowledge and consent would be attributed to the respondent". It is submitted that the supervisors Mr Machell and Mr Best were not called to give evidence, and so it was not proved that they did not know of, or consent to, a practice of driving while intoxicated. As to Mr Berry, who did give evidence, it is submitted that he left the vehicle outside the tavern, with the keys in it "when it was obvious that a person who was under the influence of intoxicating liquor could decide to drive it".
36 His Honour did not deal with the submissions referring to named individual supervisors, when considering the warranty issue. That is not surprising, since counsel for the second appellant at trial had this discussion with his Honour:
"MARTINO DCJ: What do you say about how the third party knew that first defendant was under the influence of alcohol?
MANGAN, MS: Because the evidence will be that the third party knew the culture of heavy drinking in the camp sites or work sites that they operated and controlled and that the obligation to prevent your vehicles from being driven by someone under the influence of alcohol isn't simply limited to one individual at one particular time. There's a duty to inquire and control the use of the vehicles so that that doesn't happen. The breach of- warranty arises from their failure to do that.
MARTINO DCJ: I see, so no specific knowledge of this person being drunk on this occasion.
MANGAN, MS: No. It's not a case where there will be any evidence led that a director or officer of Murray River North
(Page 15)
- specifically condoned this particular incident, but it's a general practice, a usual practice as pleaded, that was exercised and that's what happened in this case."
37 This question, as formulated at trial, was one concerned only with a "general practice". It was in that context that the respondent did not call Mr Machell or Mr Best, and in that context that Mr Berry's evidence was given. Had it been suggested that the knowledge or behaviour of particular individuals was in issue, the respondent might have run its case differently. It is too late to raise on this appeal, a case departing from that put at trial.
38 I would dismiss this appeal also.
39 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
40 BUSS JA: I agree with Wheeler JA.
17
1