Pasqualotto v Pasqualotto

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0180

ADAM PASQUALOTTO	Appellant
	v
R & L PASQUALOTTO	Respondents

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JUDGES	TATE, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 and 30 October 2012
DATE OF JUDGMENT	19 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 21
JUDGMENT APPEALED FROM	Pasqualotto v Pasqualotto [2011] VSC 550 (Kyrou J)

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PERSONAL INJURY – Negligence – Contributory negligence – Statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety (Plant) Regulations 1995 – Jury trial – Directions – Appellant sustained back injury while working as tobacco picker – Where employer directed appellant to continue working after appellant asked to stop – Employers’ knowledge of prior injury to back – Whether employer failed to provide safe system of work – Whether verdict open – Appeal allowed.

PRACTICE AND PROCEDURE – Whether trial judge erred in application of the rule in Browne v Dunne.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Ingram with Mr G Worth	Clark Toop & Taylor
For the Respondents	Mr M Wheelahan SC with Mr M Rush	Wisewould Mahony

TATE JA:

I agree with the reasons of Osborn JA and the orders his Honour proposes.

OSBORN JA:

I have had the considerable advantage of reading the reasons of Whelan JA in draft. It is unnecessary to repeat his detailed summary of the course of the proceeding and of the evidence at first instance, save to note the following central matters.

The appellant is the son of the respondents. He was born on 10 September 1975 and grew up on his parents’ farm. On 24 May 1994, he suffered injury to his lower back in a car accident. On 18 December 1997, Mr Graham Brazenor performed a double fusion operation at the L4/5 and L5/S1 levels of the appellant’s spine. Subsequent to that operation, Mr Brazenor advised the appellant that he should not work on the farm or perform other manual work involving lifting and bending at the waist.

At the end of December 1998, the appellant started working on his parents’ farm again. He initially performed light duties only, but gradually increased the range of his work, although he avoided a number of heavy tasks. It was accepted by his parents that if he needed a rest as a result of back pain he could take one.

From 2000 onwards, the appellant worked each year as a picker on a tobacco harvesting machine. He was required to sit on the lower level of the harvesting machine as it slowly moved forward along the rows of tobacco plants and to continually stretch and bend to pick mature tobacco leaves. As the machine moved, it created some vibration and the combination of the stretching and bending motions and the vibration placed strain on the appellant’s back. He worked a 12 hour day.

On 17 March 2005, while working on the harvesting machine the appellant experienced back pain and requested the first respondent, his father, to take his place

on the machine. The appellant’s father told him that he could not relieve him and directed him to continue working until the machine reached the end of the row of tobacco plants. The appellant continued working for another one and half hours until the machine reached the end of the row of plants. During that period, he experienced increasing pain and, by the time the machine had reached the end of the row, he was in so much pain that he could not stand up.

Following a number of medical examinations, it was found that the appellant’s L3/4 disc had collapsed. In March 2008, Mr Brazenor conducted fusion surgery at the L3/4 level.

Subsequently, the appellant brought proceedings claiming damages in negligence and for breach of statutory duty against the respondents in respect of the L3/4 injury suffered by him on 17 March 2005.

The appellant’s claim in negligence alleged that the respondents had breached their duty of care to him on three principal bases, identified for the jury by the trial judge:

(a) failing to provide an ergonomically safe seat on the harvesting machine;

(b) refusing the appellant’s request to stop work on the harvesting machine on 17 March 2005; and

(c) failing to exclude harvesting work from the appellant’s duties.

The appellant’s claim for breach of statutory duty relied on the obligation imposed on the respondents by reg 15 of the Manual Handling Regulations and reg 704 of the Plant Regulations to ensure that any risk to the appellant’s back arising from his work on the harvesting machine was eliminated or reduced as far as was practicable.

The trial judge directed the jury that in relation to reg 15 they must be satisfied on the balance of probabilities:

(1) that the picking of tobacco leaves whilst sitting on the harvesting machine involved a risk of musculoskeletal disorder;

(2) that it was practicable to eliminate the risk or reduce it;

(3) that the respondents did not eliminate the risk, or reduce it as far as was practicable, and this was a cause of the appellant’s injuries.

In respect of reg 704, the trial judge directed the jury that the appellant must satisfy it on the balance of probabilities:

(1) that the use of the harvesting machine for picking tobacco leaves involved a risk of injury;

(2) that it was practicable to eliminate the risk or reduce it;

(3) that the respondents did not eliminate the risk or reduce it as far as was practicable;

(4) that the respondents’ failure to eliminate the risk or reduce it as far as was practicable was a cause of the appellant’s injuries.

Evidence was called on behalf of the appellant from an ergonomist, Mr Hennessey, who said, among other things, that it would have been practicable to reduce the stress on the appellant’s back by providing a better seat for him on the harvester which swivelled and/or provided more convex lumbar support and/or provided a higher back rest and/or provided more cushioning reducing exposure to vibration and/or was supported by shock absorbing seat suspension similar to that adopted on a tractor which was described in evidence and/or lowering the appellant’s seat.

The respondents raised a defence of contributory negligence alleging:

(a) the appellant failed to abide by specific medical advice not to engage in farm work; and

(b) the appellant engaged in farm work when he knew or should have known that he was at risk of further injury to his lumbar spine.

The jury was asked five questions, which they answered as follows:

(1) was there negligence on the part of the defendants which was a cause of the plaintiff’s injuries?

Answer: No

(2) was there a breach of statutory duty on the part of the defendants which was a cause of the plaintiff’s injuries?

Answer: Yes

(3) if yes to questions (1) or (2), was there contributory negligence on the part of the plaintiff which was a cause of his injuries?

Answer: Yes

(4) if yes to question (3), by what percentage is it just and equitable that the damages recoverable by the plaintiff should be reduced having regard to his own share of responsibility for his injuries?

Answer: 70 per cent

(5) if yes to questions (1) or (2), what is a fair and reasonable sum to compensate the plaintiff for his past and future pain and suffering including loss of enjoyment of life and his past and future loss of earning capacity?

Answer: Pain and suffering damages $400,000

Loss of earning capacity damages $444,067

On 3 November 2011, the trial judge entered judgment in the sum of $236,287.50, being the jury verdict, less compensation payments of $56,442, reduced by 70 per cent. The appellant was not awarded costs because he failed to achieve 90 per cent of a statutory offer previously submitted to him in accordance with s 134AB(12)(c) of the Accident Compensation Act 1985.

The first ground of appeal is that the jury’s finding that the respondents were not negligent was not open. In my opinion, this ground should succeed and is dispositive of the appeal.

Negligence

In McLean v Tedman,[1] Mason, Wilson, Brennan and Dawson JJ said:

The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer.[2] And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.[3]

[1](1984) 155 CLR 306.

[2]See Fleming, Law of Torts, 6th ed (1983), pp 480-481.

[3]McLean v Tedman (1984) 155 CLR 306, 313.

The duty of care that an employer owes to an employee may vary according to the particular susceptibility of an employee to injury. If the employer knows that the employee has a predisposition to injury then the employer must take special precautions to avoid that injury.[4]
[4]Paris v Stepney Borough Council (1951) AC 367.

This is a case like Perkovic v McDonnell Industries Pty Ltd,[5] in that negligence lies in an imperative order given by the employer to the employee; namely the order of the appellant’s father to keep working when the appellant sought to be relieved from his duties because of pain in his back. The order given was an order no reasonably prudent employer could have given. The critical enquiry is whether, at

the time the order was given, it foreseeably subjected the appellant to a risk of avoidable injury. In my view, it is plain that it did.[6]

[5](1987) SASR 544 (‘Perkovic’).

[6]Cf Von Doussa J, Perkovic, 552.

The basis on which the evidence must be assessed

It is a difficult task to overturn a jury’s verdict. The relevant principles were summarised by Ashley JA in Butcher v Australian Tartaric Products Pty Ltd.[7] As his Honour noted, it has been said that an appellant must show that the jury’s answer to a question was such that ‘no reasonable jury could have given’; that such decisions can only be disturbed ‘in an extreme case … [where they are] unreasonable’; and that ‘the occasions for judicial correction of jury verdicts will be extremely rare.’[8] In JohnFairfax Publications Pty Ltd v Rivkin,[9] Kirby J summarised the position as follows:

I am very mindful of what this Court and the Privy Council said in Hocking v Bell, concerning appellate review of jury verdicts. In this Court, the case is often referred to, and given effect. But neither Hocking v Bell, nor any decision since of which I am aware, obliges an appellate court, performing its function of deciding an appeal from a verdict of a civil jury, to defer to the jury decision if there is the merest scintilla of evidence to support that decision. This is a common misreading of Hocking v Bell. It must be removed from legal thinking.
In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons and in circumstances where only limited means are available to decide how the jury may have reached their conclusion. Nevertheless, the touchstone is – and should be – one of reasonableness. Nothing else would coincide with judicial authority. Nothing else would fit with the appellate court’s duty as a receptacle of statutory power. Reasonableness, rationality and fair process lie at the very heart of our legal system. There is no need to apologise for them, or to dispose of them, in deference to fictitious or absolute notions or a blind faith in finality of legal process that has clearly miscarried.
The position was explained by McHugh J in Fox v Percy in language that I would adopt, word for word, for application in this case:
‘Juries give no reasons. Because that is so, appellate courts must act on the basis that the jury took that view of the evidence that was reasonably open to them and is consistent with their verdict. Nevertheless, in some cases no reasonable view of the evidence can support the verdict. In those cases the appellate court may intervene to set aside the verdict.’[10]

[7][2009] VSCA 303 (‘Butcher’).

[8]John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 (Gleeson CJ 1658 [2]; Kirby J1675 [112], 1677 [119]; Callinan J 1698 [183]).

[9]Ibid.

[10]Ibid 1682, [150]-[152], (citations omitted). Emphasis in the original text.

In approaching the evidence, it is therefore necessary to take the best view of it from the respondents’ point of view consistent with the jury’s verdicts. Adopting this approach, however, the evidence demonstrated at least the following:

· the appellant suffered injury to his back on 17 March 2005 when he was required to continue working after complaining of back pain;

· the respondents knew that the appellant had previously suffered serious injury to his back and was susceptible to further injury, and had modified his duties as a result;

· picking tobacco from the harvester was a 12 hour a day job which required the appellant to continually bend forward and twist from a seated position;

· no risk assessment had been carried out to see whether the appellant was capable of safely performing the picking task;

· the respondents knew that picking had the capacity to cause the appellant back pain, because they had refused to replace his seat upon the harvester when he requested that this be done to reduce pain in his back;

· the respondents had previously adopted a practice of allowing the appellant to rest when he experienced back pain during work other than picking tobacco;

· the appellant’s father was the boss on the farm and directed him to continue working on the harvester when he requested that he be permitted to stop because of back pain;

· the reason the appellant’s father refused his request was the need to maintain five workers upon the machine in order for it to operate at full capacity.

Each of these matters was the subject of evidence by the appellant’s father himself, to which I shall shortly turn.

Before going to that evidence, two further matters should be recorded. First, I respectfully agree with Whelan JA that although the appellant sought at trial to affix the respondents with personal knowledge of direct warnings given by Mr Brazenor to the appellant that he should not work upon his parents’ farm, the jury was not bound to be persuaded that the appellant’s mother received such warnings or that it was negligent of his parents to permit him to work on the farm at all after the double fusion he underwent to his lower spine in 1997.

Nevertheless, it does not follow that the jury was entitled to find that there was no negligence on the respondents’ part in directing the appellant to keep working on 17 March 2005 when he requested to stop work because of pain in his back.

Secondly, it might be argued that the jury’s answer to question (2) and the finding of breach of statutory duty causal of injuries in the circumstances of the case was inconsistent with the answer to question (1). For present purposes, however, it is unnecessary to resolve that issue.

The injury

The significance, for present purposes, of the jury’s answer to the second question and its assessment of damages for pain and suffering are that they make it clear that it accepted that the appellant did suffer substantial injury on 17 March 2005. The jury was not bound to take this view. Indeed the respondents’ counsel urged the proposition in final address that the weight of the evidence favoured the view the appellant was injured gradually over many years and did not suffer significant injury on 17 March 2005. Nevertheless the jury’s verdicts as a whole are only consistent with the view that the appellant did suffer significant injury on 17 March 2005 and the case on negligence must be approached on this basis.

The jury’s conclusion is hardly surprising given the evidence of Mr Kenneth Brearley, a general surgeon, who was called on behalf of the respondents. When the appellant’s description of what occurred after he sought to get off the machine on 17 March 2005 was put to Mr Brearley, he said that what occurred would certainly have a very deleterious effect on the L3/4 disc. When asked by the trial judge ‘… from a medical perspective, Mr Brearley, what do you say about the consequences of that direction that you’ve heard about if the evidence is accepted?’ Mr Brearley said:

I think that it’s entirely inappropriate for the father to – to tell, um, tell the patient to, um, continue with the work when he’s already in pain and complaining about it. I think, ah, that would only certainly worsen the situation and I think it was, um, certainly should not have been done.

The medical opinion evidence of Mr Barrett, Mr D’Ursu, and Mr Bittar supported a like conclusion. Indeed, even Mr Brazenor’s evidence contemplated the possibility of an ‘exacerbation’ of the appellant’s underlying condition and supported the view that activity which involved twisting of the back was inappropriate because of the risk of further injury.

The giving of the direction to keep working

In evidence in chief, the appellant’s father was asked whether he remembered the day in March 2005 when the appellant had an ‘aggravation’ of his back injury. He said:

- - - I remember – I remember that day going down the paddock to pick up the tobacco that was picked - - -
Yes? - - - And, um, him asking me if I could take over and do the last run - - -

Yes? - - - And, um, I said, ‘Look, I can’t. Try and do another run.’ And, um - - -
Then the history unfolded? - - - Yes.

It can be seen that in leading evidence from appellant’s father the respondents’ counsel accepted that the appellant did have an aggravation of his back injury on 17 March 2005 and that there was no dispute that the appellant asked to be relieved from his duties because of back pain, nor that he was told to continue working.

In cross-examination, the appellant’s father agreed that his son asked him to take over because he was in pain. He also confirmed that he told the appellant to do another row.

The reason for the direction

Earlier in his evidence in chief, the appellant’s father had been asked what his attitude was if the appellant asked for a break. He said that:

When – when we started harvest, um, no the - it was pretty hard. You – you couldn’t take a break cos if you’re picking in five you, sort of, had to pick in five all day to – and there wasn’t a problem then but if – when he was spraying or – and he needed a break he could take it yes. …

In elaboration of this answer, he subsequently said that the machine had to operate with the full five pickers on it because with four:

… you won’t have the tobacco to put in your barn and you can’t run the barn half full …

When asked why he could not take over from the appellant when the appellant asked to be relieved, the appellant’s father said he did not take over because he had not only to collect tobacco from the harvesting machine but to constantly check 12 ‘join barns’ on the farm.

Knowledge of the prior injury

At the time the appellant’s father directed the appellant to keep working, he knew that the appellant had suffered prior injury to his lower back and that the consequences of the spinal fusion he had undergone continued to affect his back.

The appellant’s father agreed in cross-examination that he knew that the appellant had undergone ‘a very major surgical procedure’ and that the two lower levels of his spine had been fused so that they were no longer mobile segments.

The overall system of work adopted prior to the appellant’s injury

The appellant’s father said that before the appellant returned to work on the farm after the 1997 fusion, there was an agreement that he would not be required to do jobs which were too hard.

Yes. And did you know that because you were his employer, you had to take reasonable care to provide him with a safe system of work, to provide him with equipment which was safe for him to use and that you had to provide supervision which was appropriate to the tasks that he was required to perform. Did you know you had those obligations legally? - - - Well we spoke about it before – when he wanted to come back on the farm.
Yes? - - - And I needed him on the farm.
Yes? - - - We spoke about if he was – something was going to be too hard, or he couldn’t carry on what he was doing, he could take time off and come home. We spoke about mainly lifting. All the other tasks he – he was – he was fine. I mean, if he wanted to stop, yes he could stop.
Yes? - - - Apart from the harvest that day, well we just didn’t do anything that day. I said, do another run and – but as far as his workload, yes um, when he wanted to take a rest or when he had to, he would.

It can be seen that the respondents took account of the appellant’s back injury in the selection generally of the tasks that he might do and also in the way he was required to do them.

The appellant’s father also agreed with the appellant’s evidence that there was a series of jobs which the appellant was not required to do.

Did you know that your son limited himself in many other different activities on the farm to avoid the risk of injury to his spine? - - - Ah, yes.
Yes. He gave evidence – just excuse me for one minute. He gave evidence that he avoided tasks … such as lifting and bending tasks including the preparing of the greenhouses, rolling out of large rolls of plastic which were used in that task? - - - Yes.
The carrying of the polystyrene trays containing the tobacco seeds which were floated in the 8 inch – 8 inches of water? - - - Yes.
That when the seedlings were ready to be transported down to the fields, other workers got – did that because he couldn’t bend down and lift them out of the – of the greenhouses? - - - Yes.
That he avoided in setting up the irrigation system and laying out the sprays in the fields? - - - Yes.
That he didn’t have to handle the tobacco bins in which the green tobacco leaves were placed. They were about 1 metre by – 1 metre by 1.9 metres – because of the size and difficulty with them? - - - Yes.
Didn’t have to handle the 40 to 50 kilogram bags – they were – they were 40 to 50 kilograms, sorry. That he didn’t work on the top of the harvesting machine at all. That after the tobacco had been dried it was loaded into large boxes. He didn’t have to handle them and – or the bales that weighed up to about 100 kilograms, he didn’t handle them? - - - That’s right.
He didn’t handle the 50 kilogram bags of fertiliser or the 20 litre drums of chemical? - - - That’s right, yes.
And he didn’t have to involve himself in fixing different implements onto the back of the tractor? - - - That’s right.
And that’s a list he came up with giving evidence. So, you agree that he was able to not participate in all of those activities? - - - That’s right.

The list of jobs included jobs excluded both because they involved lifting and bending and because they involved heavy lifting.

In addition, when doing other jobs the appellant’s father said that the appellant was permitted to take a break if he needed one:

And insofar as your approach to him was concerned, what approach did you take to him if he needed to have a spell or things like that? - - -Well he worked at his – at his own pace.
Yes?- - -Um, when he was doing different jobs, like he was spraying and – he needed to take an hour off or take – he could do that.

In cross-examination, the appellant’s father agreed with the following propositions:

The long standing agreement was that if he was ever in pain, he was allowed to go and rest?- - -Yes.
And you’d seen him on numerous occasions over the years, if he was in pain, up to the house to rest?- - -Yes.

I have emphasised the evidence of the first respondent because it represents the best view of the evidence on this issue from the respondents’ point of view reasonably open to the jury.

Nevertheless it should be noted that not only did this evidence accord with that of the appellant himself, it accorded squarely with the case that had been put in cross-examination of the appellant on behalf of the respondents. Counsel for the respondents put to the appellant a series of propositions from a medico-legal report obtained from Mr Brearley in December 2000:

‘He is able to stop working when his back feels particularly uncomfortable’, did you tell him that?---Yes.
Is that the truth?---Yes, like when we're working on the tractors I can go at my own pace, stop when you have to. You're not relying on other workers. You're not on a harvesting machine or planting machine. You work at your own pace.
That was the case always, wasn't it, that you could stop work whenever your back was uncomfortable?---Yes.

Indeed counsel for the respondents went so far as to put their case this way:

This was a sheltered workshop for you back in 2000, wasn't it? That is, without the understanding of your parents you couldn't have possibly worked there, couldn't have maintained a full time normal job as a farmhand?---No.
You agree with that?---Yes.

Counsel for the respondents returned to the agreement between the appellant and his parents near the conclusion of his initial cross-examination of the appellant.

You were asked questions about when you - well, perhaps I'll go back a step. You've told us and you've indeed told doctors that you virtually worked in the sheltered workshop when you returned to work on the farm after your operation because whenever you felt like going home and having a rest your parents understood that was the agreement and away you'd go?---Yes.
That's so, isn't it?---After the first operation?
Yes?---Yes.
Yet on this particular day you said to your father, ‘My back's killing me’, or words to that effect?---Yes.
And he said, ‘Do one more round’?---Yes, I asked him to take over my position.
Yes. Can I ask you this. If you'd physically left the seat at that point in time - - -?---Yes.
---that would leave four seats to the other workers?---Yes.
And if you were on the right side or the left extreme side - - -?---Yes.
---that would mean that you'd go up four alleys instead of five?---That's correct.
That would mean the machine could do the four alleys, not the five and just do a bit more up and down?---Ah, well, it's a lot more efficient running the machine with five men picking than four .
It's 20 per cent better?---Yes.
But it meant maybe you spent - the machine spent at that point in time 20 per cent longer in the field. The job could be done?---Yes.
The job was done after you left?---Yes.
Did it continue the next day?---Yes.
So there was no reason why you couldn't have taken yourself home at this point in time in accordance with the agreement you have with your parents?---No, but father made me stay down there and to continue to work.
He made you stay?---Yes.
Contrary to your agreement?---Yes.

Counsel for the respondents referred to the evidence that the respondents provided a ‘sheltered workshop’ in final address, as a component of the evidence which was said to demonstrate in effect that the fount and origin of the appellant’s injury was his decision to return to farm work, not the actions of his parents. I shall return to this issue shortly.

For present purposes it is sufficient to say that the evidence of the appellant of the arrangement with his parents, the respondents, that:

(a) he refrain from doing particular jobs which stressed his back; and

(b) he could take a break when his work caused him pain;

was overwhelmingly supported by the evidence as a whole.

First, it was the unchallenged evidence of the appellant (no cross-examination was directed to the contrary). Indeed, it was part of the case put in cross-examination of the appellant on behalf of the respondents. Secondly, it was acknowledged in detail by the first respondent, the appellant’s father. Thirdly, it was entirely consistent with the medical evidence as a whole and in particular that called on behalf of the respondents that tasks of the type described by the appellant were likely to cause him back pain.

The nature of the harvesting task

Picking tobacco was a 12 hour daily job undertaken sitting on the harvester and bending and twisting forward in order to pick tobacco leaves. In cross-examination, the appellant’s father agreed that tobacco harvesting was heavy and intense work and that the pickers seated on the bottom row of the machine engaged in continuous bending forward and twisting as they picked tobacco leaves. So much was patent from the evidence as a whole.

The appellant’s father was aware that the work had the capacity to cause the appellant pain. The appellant had requested a modified and more comfortable seat like one which had been supplied for his use on a tractor. The request had been made on the basis that it was necessary to reduce stress on his back:

The evidence in relation to the request of the – for the change of seating – I’ll just use your evidence for the minute. You say that the tractor type seat would have been too big to fit down the rows but there would have been narrower and more comfortable seats than the seats we’ve seen in the photographs which would have been capable of fitting down the rows, wouldn’t there?- - - Ah, yes.
And there was – despite his request there was never any attempt to use any other sort of more comfortable seat for his back on the machine, was there?- - -No.
When he complained and said that he needed a more comfortable seat, I suggest that that was in the context of the fact that he was struggling with some pain in his back and that’s why he made the request?- - -Yes.

No risk assessments had been made

The appellant’s father’s evidence was that no risk assessment had been undertaken of the risk to the appellant of injury resulting from working as a picker during the tobacco harvesting. He did not perceive that the appellant was at risk of sustaining an injury to his spine.

Conclusion on negligence

It may be accepted that it was open to the jury to find the respondents were not negligent in allowing the appellant to work as a picker as such. The evidence was that the appellant had worked on the farm or as a picker for some five years prior to the incident in question and the appellant’s father said that the appellant had not asked to be replaced as a picker during that time. Further, as I have said, it was open to the jury not to be persuaded that the respondents understood Mr Brazenor’s advice was that the appellant should not do such work. Nevertheless, in the combination of circumstances I have described, it could not be concluded that the appellant’s request to be relieved from his duties was other than reasonable and that its refusal was other than unreasonable and negligent.

The evidence showed that the appellant’s father directed the appellant to keep working:

(a) when the appellant asked to be relieved because of back pain;

(b) knowing the appellant had previously undergone fusion surgery to his lower back; and

(c) continued to suffer from limitations in his capacity to do work because of his back condition;

(d) which the respondents accepted justified allowing the appellant to rest when necessary when he was doing tasks other than picking;

(e) and at a time when the appellant was working a 12 hour day doing work which patently imposed strain on his back by reason of bending and twisting; and

(f) which the appellant was required to do sitting upon a seat which he had previously complained about because of pain he suffered when working upon it.

The justification for the giving of the order was that it was necessary in the appellant’s father’s mind to maintain full output from the harvester for the balance of the day.

In my view, the jury was bound to conclude that the respondents breached their duty of care to the appellant by requiring the appellant to continue working for the purpose of maintaining full production output over the 1 ½ hours in question.

A safe system of work would, as a minimum, have recognised the possibility that the appellant might require a rest of the type the respondents permitted him when undertaking other duties. Further, it is simply not open to an employer consistent with the duty of care owed to an employee to require the employee to undertake work which involves a directly foreseeable risk of injury to the employee of the type here in issue.

It is not to the point that the appellant’s father did not himself foresee the degree of injury and consequent pain which the appellant might suffer as a result of being required to continue working. It is sufficient that it was plainly objectively

foreseeable that the appellant might suffer further injury to his back and consequent pain and suffering if required to continue working.

It may also be the case that it was impractical for the appellant’s father to take over from his son on 17 March 2005 when he was asked to do so because of duties he had to fulfil elsewhere and, in particular, at the receiving barns. If that were the case, however, the obvious practical course was simply to continue harvesting with one less picker (ie reduce the number of rows able to be harvested in one pass) or stop harvesting 1 ½ hours early. A safe system of work would either have provided for the situation which arose by supplying a potential alternative picker or have accepted some limited reduction in output.

The commercial imperative supporting operation of the harvester at full capacity could not displace the employer’s duty to take reasonable care for the appellant’s safety health and welfare.

The primary answer to the case on negligence advanced at trial on behalf of the respondents in final address was simply one of causation. It was put that the real and substantial cause of the appellant’s injury was his choice to resume farm work contrary to medical advice and express warnings. The fundamental difficulty with this argument is that whilst the appellant’s own actions might well found a very substantial finding of contributory negligence, they could not relieve the respondents from their non-delegable duty to provide a safe system of work. For the reasons I have explained the first respondent’s direction to continue working on 17 March 2005 cannot be characterised as an objectively reasonable discharge of this duty in all the circumstances of the case.

The further grounds of appeal
The consequence of accepting ground 1

If it is accepted that ground 1 of the appeal should succeed, counsel for the respondents conceded that the question of contributory negligence must be re-opened.

This is because the resolution of the question of contributory negligence must weigh in the balance the fault of the respondents. The making of an apportionment as between the appellant and the respondents of their respective shares of responsibility for the appellant’s injury involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage.[11] Culpability in this sense refers not to moral culpability but to the degree of departure from the standard of care expected of each of the employer and the employee.[12]
[11]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494.
[12]Butler v Rick Cuneen Logging Pty Ltd [1997] 2 VR 99 (Winneke P, 103 with whom Charles and Callaway JJA agreed).

It was submitted on behalf of the appellant that there could be no finding of contributory negligence in the present case because the conduct that caused injury was performed pursuant to an express direction of the employer.

I do not accept that this is so. As Whelan JA explains, the primary basis on which contributory negligence was put was that the appellant was negligent in undertaking work upon his parents’ farm at all given the terms of Mr Brazenor’s warnings and advice. It was also put that undertaking work involving bending and twisting was directly contrary to Mr Brazenor’s advice. The appellant may relevantly be thought to have acted negligently either when the appellant commenced working on his parents’ farm or when he commenced working as a picker as part of the harvesting team in 2005, or on the day he was injured, knowing that the work would be contrary to Mr Brazenor’s instructions because it involved bending and twisting his back.

It does not seem to me that the subsequent direction of the appellant’s father to continue working must necessarily be seen as excluding contributory negligence

on the appellant’s part. The direction was not one as to the manner of work[13] but simply its continuation.

[13]Cf Prestinenzi v Steel Tank & Pipe Consolidated [1981] VR 421 (Kaye J, 437-8).

The contributory negligence alleged is not that the appellant failed to show commonsense in the manner he did the work but that he should not have undertaken the work at all.[14]
[14]See the discussion of Ashley J in Kulczyski v Metalex Pty Ltd [1995] 2 VR 377, 409-10.

The contributory negligence is not alleged to have been constituted by a simultaneous contribution to the happening of the injury but by the anterior creation of the context in which the injury was caused.

Likewise, I do not accept the appellant’s submission that the employment of the appellant by the respondents, knowing of the risk that further work posed to his back, somehow broke any potential causal connection between Mr Brazenor’s warnings and the culpability of the appellant’s subsequent conduct. First, the extent of the respondents’ awareness of the warnings given by Mr Brazenor was a contentious issue of fact upon which the appellant may not have persuaded the jury. Secondly, the appellant knew the nature of the surgery he had undergone and the fact that his back was at risk of further injury. On the respondents’ case, he was warned from undertaking work of the very type he was doing when injured. Whether, as the appellant submits, any advice given by Mr Brazenor was overwhelmed by the actions of the respondents, who employed the appellant under an unsafe system of work, was a question of fact for the jury.

The question then arises whether this Court should seek to resolve the issue of contributory negligence itself. In my view, it should not. On the one hand, the terms of Mr Brazenor’s warnings, upon which the primary allegation of contributory negligence rests, were contested; and much might turn upon what the jury found was precisely said and the circumstances in which it was said. On the other hand, whilst I have explained the basis on which I would conclude the jury was bound to find the appellant was injured as a result of the respondents’ negligence, the case against the respondents was also put on the basis of breach of statutory duty and it is not possible to unwrap the basis on which the jury found this claim to be made out.

Accordingly, in my view this Court should set aside the jury’s answer to question (1) and declare that the answer to question (1) is ‘Yes’.

Questions (3) and (4) should be remitted for rehearing in accordance with law. It will be for the trial judge to determine after hearing the parties how that rehearing should proceed.

The appellant is entitled to retain his verdict for breach of statutory duty and the assessment of quantum made in respect of it. Grounds of appeal directed by way of criticism to the course of the conduct of the trial in respect of the issue of contributory negligence have been overtaken by the conclusion to ground 1.

I would only add the following observation. In order to found a finding of contributory negligence it will not be necessary for the respondent to establish both that:

(a) the appellant continued to work on the farm after Mr Brazenor had warned him in December 2000 that if he did so he would virtually guarantee demolition of one or more segments above the fusion block; and

(b) that the injury to the plaintiff’s L3/4 disc was caused gradually in the period from 1997 until March 2005 rather than solely by the incident of 17 March 2005.

The trial judge charged the jury in respect of both these propositions in consequence of the way the matter was put to him on behalf of the parties at trial, but the second finding postulated was not necessary to a finding of contributory negligence.

The preliminary factual questions raised by the case on contributory negligence were whether:

(a) the appellant continued to work on the farm after Mr Brazenor had warned him in December 2000 that if he did so he would virtually guarantee demolition of one or more segments above the fusion block; or

(b) the appellant undertook picking work on 17 March 2005 after Mr Brazenor had warned him in December 2000 not to undertake work involving bending and twisting his back.

WHELAN JA:

Introduction and overview

Adam Pasqualotto, the appellant, has a significantly damaged back. He has had two disc fusion operations. The first was on 18 December 1997 when his discs at L4-5 and L5-S1 were fused. The second was on 20 March 2008 when the discs at L3-4 were fused.

The first fusion operation in 1997 was to correct a disc prolapse suffered as a consequence of a motor vehicle accident in 1994. The second was to correct damage in the discs immediately above the 1997 double fusion. That damage occurred as a consequence of work he performed as an employee on his family’s tobacco farm. The tobacco farm was owned by his parents. They are the respondents.

Adam Pasqualotto sued his parents alleging that he suffered injury on 17 March 2005 while harvesting tobacco. The system of work required him to sit on a plastic seat on a harvesting machine which moved through the tobacco plants. In all, five persons worked on the machine at the one time. Adam Pasqualotto and two other pickers were required to sit on plastic seats and to bend and twist picking

leaves. The three pickers put the leaves into a container which was then mechanically lifted to two employees working on a platform above the pickers.

As seems to be the accepted and long standing practice in personal injury litigation, Adam Pasqualotto’s statement of claim alleges almost no material facts. As the matter was litigated his case, in broad overview, was as follows:

· He had a pre-existing injury at L4-5 and L5-S1 which predisposed him to further spinal injury.

· His parents, as his employers, were aware of his previous spinal injury and were obliged to devise a system of work which was safe for him.

· They did not do so. This was because the harvesting machine upon which he was required to work was unsafe for him as it required him to bend and twist while seated on a plastic chair; and because, although they had previously agreed with him that he could cease work whenever he was in pain, on the day in question, 17 March 2005, he requested to cease work but was told by his father to continue for another hour and a half.

· A new injury was suffered on 17 March 2005 as a result of the bending and twisting on the harvesting machine after he had asked his father to cease work and had been told to continue.

· His parents were negligent and had breached their statutory duties.

· While he had recovered well from the double fusion operation in 1997, the injury suffered on 17 March 2005 had rendered him significantly and permanently disabled.

The respondents’ defence also contains almost no material facts, but the defence as litigated was, in broad overview, as follows:

· Adam Pasqualotto never fully recovered from the double fusion operation in 1997.

· He had been specifically warned by the neurosurgeon who had performed that operation, Mr Brazenor, that he should not go back to work on the family farm and that if he did so that would virtually guarantee further injury to the discs above his double fusion. That is the very injury he did in fact suffer, not as a result of any incident on 17 March 2005, but progressively over the years from 1998 or thereabouts after he had returned to work on the family farm.

· His parents were not negligent or in breach of their statutory duties, but if they were he was guilty of contributory negligence by returning to work on the family farm in contravention of his neurosurgeon’s warning.

· He had exaggerated his incapacity and his loss of earnings.

The appellant sought a trial by jury, and that trial before a jury of six began on 6 October 2011.

At trial the appellant never departed from the position that he suffered a fresh injury on 17 March 2005, albeit that it was an injury to which he had been predisposed by his earlier injury. But the appellant sought to meet the case being put on behalf of the respondents by arguing, again in broad overview:

· They knew as much about his condition and his neurosurgeon’s warnings as he did.

· They had been continuously in breach of their obligations to him, particularly their obligation to provide a safe system of work, over all the years he worked on the farm after his double fusion operation and those breaches ‘subsumed’ or ‘broke the chain of causation’ in relation to the neurosurgeon’s warnings.

· He could not be contributorily negligent for working as directed, in accordance with the employers’ unsafe system, and using the employers’ unsafe equipment.

As the trial progressed, the appellant expanded the thrust of the negligence case against his parents so as to encompass an allegation of negligence constituted by directing or permitting him to do harvesting work at all, given his known spinal condition. This was, in a sense, an appropriation of aspects of the respondents’ case and led to an objection by senior counsel for the respondents that that way of putting the case to the jury was outside the pleadings. The trial judge allowed the appellant to put his case to the jury on that basis.

Two evidentiary issues pursued by the appellant at trial in relation to the neurosurgeon’s warnings were that the warnings were not as emphatic as the respondents asserted; and that, in any event, the appellant’s mother, who is the second respondent, was present when the appellant consulted with the neurosurgeon so that the respondents were just as aware of the warning (whatever its terms) as was the appellant.

On 25 October 2011 the jury delivered its verdict. The jury found that the respondents had not been negligent, but that they had breached their statutory duties. The jury assessed the damages for pain and suffering at $400,000, which was the figure that counsel for the appellant had submitted to them in his final address, and assessed loss of earnings and loss of earning capacity at $444,067, which was less than the figure which the appellant’s counsel had submitted ought to be the assessment in his final address. The jury found the appellant had been guilty of contributory negligent to the extent of 70%.

Counsel on behalf of the appellant unsuccessfully applied to the trial judge for judgment ‘non obstante veredicto’ in relation to the finding of contributory

negligence. The trial judge rejected that application and published reasons for doing so.[15] The trial judge entered judgment in accordance with the jury’s verdict.

[15][2011] VSC 550.

The appellant now seeks to have the judgment entered pursuant to the jury’s verdict set aside and for this Court to determine the issue of contributory negligence or to remit the matter for re-trial limited to issues of liability. The notice of appeal sets out 12 grounds. In summary, the grounds are these:

1. The jury’s finding that the respondents were not negligent was not open.

2. The jury’s finding that the appellant was contributorily negligent was not open or its finding as to the extent of contribution (70%) was not open.

3. The trial judge misdirected the jury in relation to contributory negligence.

4. The trial judge wrongly refused the appellant’s application for judgment ‘non obstante veredicto’.

5. The trial judge should not have permitted the neurosurgeon, Mr Brazenor, to give evidence which contradicted the appellant’s evidence about his mother’s attendance at consultations because the substance of that evidence had not been put to the appellant, in breach of the rule in Browne v Dunn.[16]

[16](1893) 6 R 67.

Given the nature, and the breadth, of the attack on the jury’s verdict and the complaint as to the refusal to exclude aspects of Mr Brazenor’s evidence, it is necessary to review the trial in some detail. When reviewing the trial I will refer to the parties as the plaintiff and the defendants.

The plaintiff’s opening

Immediately before empanelment of the jury the plaintiff applied for leave to amend the statement of claim to expand the allegations of breach of statutory duty. Specific allegations were introduced of breach of regs 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999 and regs 702, 703, 704, 708 and 716 of the Occupational Health and Safety (Plant) Regulations 1995.[17] Leave was granted. In the event, those were the causes of action upon which the plaintiff succeeded.
[17]There was a general allegation of a failure to comply with the Occupational Health and Safety Act 1985 and/or the regulations made thereunder in the particulars of negligence.

The manual handling regulations relied upon required, in substance, that an employer identify tasks involving hazardous manual handling, ensure a risk assessment is made, and ensure any risk is eliminated or is reduced so far as is practicable. The plant regulations relied upon required, in substance, that an employer identify hazards associated with the use of plant, ensure an assessment is made to determine any risk, ensure any risk is eliminated or reduced so far as is practicable, undertake specified maintenance, and give specified training, information and instruction.

Before empanelment there was a discussion before the trial judge about the position of Mr Brazenor. Counsel for the plaintiff suggested to the judge that the defendants’ refusal to agree to the admission into evidence of a particular CT scan was because the defendants were ‘seeking to force the plaintiff’ to call Mr Brazenor. Counsel for the plaintiff told the trial judge that he had repeatedly told counsel for the defendants that the plaintiff would not be calling Mr Brazenor. In response, senior counsel for the defendants advised that the defendants would put Mr Brazenor on their list of witnesses but whether he was called by the defendants or not would remain to be seen.

Mr Brazenor became a central figure in the trial. He was the neurosurgeon who had treated the plaintiff over many years and who had performed both the fusion operations, in 1997 and in 2008. It was a fairly remarkable aspect of the case that the plaintiff did not propose to call him. It was an aspect of the case that counsel for the defendants sought to highlight at every opportunity.

The plaintiff opened the case to the jury explaining that the defendants were the parents of the plaintiff but that the crucial relationship was that of employers and employee. The plaintiff’s counsel outlined the spinal injury suffered in the accident in 1994 and the surgery performed by Mr Brazenor in 1997. He told the jury that the plaintiff had recovered well from that.

The plaintiff’s counsel then referred to the decision to go back to the farm and said that his parents knew of his limitations because of the spinal surgery. He told the jury that the family reached an agreement that he could work to his limitations and if his back became painful he would be given permission to rest.

The plaintiff’s counsel told the jury that the plaintiff’s evidence would be ‘that his mother regularly had travelled to see his specialist in Melbourne and attended appointments with him in Melbourne. He cannot recall attending those appointments alone. It’s his case that his mother was aware of any restrictions to which he might have been subject … ‘.

The plaintiff’s counsel outlined the non-delegable duty of an employer in relation to the system of work and made specific reference to case law in relation to the employer’s duty to take account of the particular circumstances of the employee.[18]
[18]When counsel for the defendants subsequently complained about this aspect of the plaintiff’s opening it became clear that the plaintiff’s counsel had in mind Paris v Stepney Borough Council [1951] AC 367, the case concerning the one-eyed man who injured his good eye because of a failure to provide and require the use of goggles.

The plaintiff’s counsel told the jury that the plaintiff had participated in the harvesting between 1999 and 2005 but that his condition deteriorated in March 2005 and by 17 March 2005 he was aware of increasing symptoms while harvesting that day. He told the jury that he was in significant pain and asked his father if he could go home in response to which his father said that he should complete one more run. This involved a further one and a half hour’s work. The plaintiff’s counsel told the jury the plaintiff suffered a further injury, above his existing double fusion, at the level L3-4.

The plaintiff’s counsel told the jury that the plaintiff consulted Mr Brazenor again on 16 May 2005 with his mother and that an injury at L3-4 was confirmed. The jury was told that the plaintiff struggled on through 2005 to 2008 until Mr Brazenor performed a further fusion operation on L3-4 on 20 March 2008.

The plaintiff’s counsel told the jury that damages were not claimed for the injury suffered in the car accident which was at L4-5 and L5-S1. He had recovered well from that injury. Damages were claimed for the injury he suffered at L3-4 from which he had had a very poor recovery. He suffered significant pain ‘in consequence of this last injury’. His consequent disability was outlined and the basis upon which negligence was alleged was explained. Reference was then made to the two causes of action introduced by the amendment just before empanelment based upon the regulations.

The plaintiff’s counsel encapsulated the case as being one where the employers had knowledge of the major spinal injury which the employee had suffered and thereby had an obligation to devise a system of work appropriate for him. They were negligent because they did not do so. There had also been a failure to comply with the relevant regulations. As to causation, the plaintiff’s counsel told the jury that the position was the same as would exist if a claimant had pre-existing degenerative changes in their back. The plaintiff’s counsel told the jury that the pre-existing injury as a result of the car accident was relevantly analogous to pre-existing degenerative changes. The plaintiff’s counsel said that if a work event occurred and ‘if that was enough to render that degeneration symptomatic, in other words, painful, then the work would be a cause even though the underlying degeneration might have predisposed the person, it’s the work that’s a cause of injury and that’s the important thing’.

In relation to contributory negligence, and in particular the allegation that the plaintiff had returned to work on the farm against medical advice, the plaintiff’s counsel told the jury the following:

The advice as to medical matters and the risk of injury to his spine, our evidence will be that the plaintiff [believes] that he was never precluded from working entirely on the farm. In fact he believes it was well known to all practitioners who treated him that he was working on the farm. It was well known to his parent that he was working subject to a double level fusion and his evidence will be that his mother accompanied him to medical appointments and she too was aware of any restrictions to which he [was] subject.[19]

[19]The bracketed words correct obvious typographical errors in the transcript.

The plaintiff’s counsel told the jury there had been a ‘round table family discussion’ and it had been agreed that the plaintiff would continue to work on the farm but that if he was ‘in trouble and had any increased symptoms in his back’ then he would go and rest his back. The plaintiff’s counsel told the jury that the important thing was that the plaintiff’s back ‘gave way’ on the very day that his father had refused to let him rest and told him to keep working. That, the plaintiff’s counsel said, was ‘the crux of the case’.

The plaintiff’s counsel told the jury that if they were to find that he was guilty of some contributory negligence by exposing himself to the risk of injury by going back to the farm then that contributory negligence would have to be small because of the heavy onus cast upon the employers and because ‘what really brought him undone’ was the fact that he was required to keep working having asked his father to stop on 17 March 2005.

What the plaintiff’s counsel told the jury about damages reflected what he had said about causation. He said:

The damages which you will award are limited to the damage attributable to his L3-4 disc injury, not the L4-5 and L5-S1. The two lower fused levels were injured in a car accident as you have heard and they are not compensated for in this case. But the point which we will make … is that the plaintiff had recovered particularly well.

In the light of the subsequent progress of the trial, the verdict, and the matters raised on appeal, the features of the opening address which are noteworthy are these:

1. The plaintiff’s case was that there was a physical injury suffered on 17 March 2005.

2. The plaintiff’s case was that he had suffered two separate physical injuries, one in the car accident in 1994 at L4-5 and L5-S1, and one on 17 March 2005 while working for his parents at L3-4. The plaintiff was not putting a case of aggravation of pre-existing injury. The case was a new injury to which he was predisposed by the earlier injury.

3. As to the warnings, the plaintiff’s counsel did not specifically address warnings by Mr Brazenor, in the sense of using Mr Brazenor’s name. He said that the plaintiff believed he had not been precluded from working on the farm, and that his parents knew of ‘any’ restrictions to which he was subject. It was said that the mother had attended appointments with him. The plaintiff’s counsel did not say she had attended every appointment. The only specific appointment which the jury was told the plaintiff’s mother had attended was the one on 16 May 2005, after the 17 March 2005 incident.

Evidence of the plaintiff

Mr Brazenor’s treatment of the plaintiff, and his role in the trial, became an issue early in the plaintiff’s evidence-in-chief. When the plaintiff was being asked about seeing Mr Brazenor in 1997, senior counsel for the defendants objected to the plaintiff giving evidence of Mr Brazenor’s diagnosis since the plaintiff was not going to call Mr Brazenor.

The plaintiff was asked about his consultations with Mr Brazenor in 1997 and the following interchange occurred:

Were you accompanied on that occasion when you went to see Mr Brazenor - - - Yes, I believe so, yeah. I was, I always went with someone to my doctor’s appointments, or with Mr Brazenor any way.
Who was that person do you remember? - - - It was either, I think it was my mother that came down with me that time there.
Or possibly a girlfriend? - - - Yes. She came to one of my appointments. I don’t even know exactly which one, whether it was the first one or the second, I don’t recall which appointment.

The plaintiff was asked about the operation which Mr Brazenor performed in December 1997. He said that his parents were in Melbourne with him during that operation. He was asked about appointments with Mr Brazenor after that first operation and the following interchange occurred:

What can you recall as to who accompanied you on the check ups that you had, who if anyone accompanied you on the check ups that you had with Mr Brazenor? - - - The first one. The first one definitely my parents drove me down to, for the appointment.
Your mother and father? - - - Yes, yes.
As those continued during the later part of 98 and into 99 who to the best of your recollection accompanied you to the appointments with Mr Brazenor? - - - My mother.
How did the recovery from the first operation – following on from the previous question, when you say your mother accompanied you down, when Mr Brazenor saw you did he see you alone? - - - No. I believe my mother came to the appointment with me.

The plaintiff described how he recovered from the first operation and said he ceased seeing Mr Brazenor in either 1999 or 2000. He said that he discussed his condition with his parents. The plaintiff said:

We had informal discussions about what I could do on the farm or any restrictions, if I had to stop work or take a break, sort of basically just, you

know, work at your own pace. If you ever have to come home or stop work just do so at your own, own pace.

The plaintiff said that Mr Brazenor was quite aware that he was working on the farm.

The plaintiff described the incident on 17 March 2005. He said that it was early to mid-afternoon. He was picking on the harvesting machine. His father was on the tractor collecting the filled bins at the end of each run. He said:

I then asked him to take over my position on the picking machine because my back was starting to cause me some, cause trouble, I was in pain, and he basically said I can’t do another run and I might take over when you get back down to the other end.

The plaintiff said that ordinarily when he asked to rest his parents were ‘fine with that’, but on this occasion his father had said: ‘I can’t take over now and do another run’. The plaintiff said he did another run which took an hour and a half or thereabouts. When he got to the end of the run his back was ‘quite painful’. He said:

… I made it to the end and I recall not being able to actually stand up out of the chair. I sort of rolled off and ended up on all fours because of the amount of pain I was in …

He said his father took him home and the harvesting continued without him.

By way of emphasising the effect of the incident on 17 March 2005, the plaintiff compared a trip he had taken to the USA in February 2005 where he had had no problems at all, with a trip which he took in July 2005 where he had experienced very significant difficulty. The plaintiff described consulting Mr Brazenor again and the further fusion operation which Mr Brazenor performed in March 2008. He described the pain and disability which he was continuing to suffer.

The first issue raised with the plaintiff in cross-examination related to Mr Brazenor, and the fact that he was not being called as a witness by the plaintiff in the trial. The plaintiff was asked about how often he had seen Mr Brazenor. He agreed that no-one would know his back better than Mr Brazenor. He was asked questions directed towards contrasting Mr Brazenor’s extensive involvement with the plaintiff as his treating neurosurgeon with the very limited involvement of the medico-legal experts who the plaintiff would be calling.

The plaintiff was asked at length about what he had told Mr Brazenor and what Mr Brazenor had told him about working on the farm. The questioning focused on warnings Mr Brazenor was said to have given the plaintiff repeatedly about doing farm work. It was put to the plaintiff that:

[In December 2000 Mr Brazenor] had told you that you, if you continued to do the work that you were doing on the family farm, would virtually guarantee the demolition of the disc immediately above the L4-5, that is the L2-3? What do you say about that? - - - He may have said that, yes.
He did say it, didn’t he? - - - I don’t recall him saying, it’s written … [20]

Senior counsel for the defendants and the plaintiff then had an interchange about the plaintiff having seen reference to this warning in one of Mr Brazenor’s reports. Senior counsel then put to the plaintiff that he had not followed Mr Brazenor’s advice and that he had gone back to work on the farm contrary to his advice. The plaintiff agreed that that was so.

[20]The reference to L2-3 was an error.

After dealing with other matters, senior counsel for the defendants returned again to Mr Brazenor’s warnings. This time the plaintiff agreed that in December of 2000 Mr Brazenor had told him that if he continued with farm work he would virtually guarantee demolition of his L3-4 disc and that that was something he had warned him about many, many times.[21] When asked why he continued working on the farm after being given this advice he said that his father wanted him on the farm and that he wanted to be there.
[21]This time the correct reference to L3-4 was made.

The plaintiff was then asked questions as to whether he had told his general practitioner, a Dr Briggs, after the incident on 17 March 2005 that there had been a ‘slow decline’ in his condition rather than a specific incident.

Dr Briggs himself was unable to give evidence because of his own medical condition. His records were produced by another doctor from the practice, Dr Bennie. Dr Bennie was interposed during the plaintiff’s cross-examination and he produced medical records which suggested that the complaint made in March 2005 was of an exacerbation of pre-existing injury and slow decline. He agreed that the history given was unrelated to any incident on 17 March.

When the plaintiff’s cross-examination resumed the plaintiff said that he did not recall telling Dr Briggs that there had been no event which triggered the injury.

Senior counsel for the defendants then returned again to the issue of Mr Brazenor’s warnings. Senior counsel was asking about who attended appointments with Mr Brazenor before the first fusion operation and then began asking about who went into the consultation room when he was accompanied to Mr Brazenor’s appointments. When asked whether ‘they’, being a reference to his parents, would go into the room with him he initially said yes and then said that his father would not do so. He was then asked:

Did he ever go into the room with the doctor? - - - Ah, not that I can remember. Maybe not my father but my mother was always – always with me on most - whenever she came down.

He was then taken through specific dates upon which Mr Brazenor had allegedly warned him. In relation to a warning allegedly given on 9 February 2000 that he should not seek ongoing employment on the farm, the plaintiff said:

That’s the advice he gave me, yes. But to me that doesn’t tell me, ‘Adam, don’t work on the farm any more’.

After further questioning, the judge asked the plaintiff to confirm that he drew a distinction between a doctor commanding or directing him not to work on the farm and giving him advice not to work on the farm. The plaintiff did confirm that he was making that distinction.

The questioning on this subject continued for some further time and, in substance, the plaintiff agreed that Mr Brazenor had given him strong advice against working on the farm which he had deliberately decided to ignore because he wanted to stay on the farm and that is what he loved doing.

It was put to him that he and his mother had seen Mr Brazenor on 16 May 2005 in response to which the plaintiff replied: ‘Quite possibly, yes.’ He agreed that on that occasion Mr Brazenor had told he and his mother that the demolition of the L3-4 was precisely the reason why he had advised him not to go back into the family tobacco business.

In re-examination the question of Mr Brazenor’s warnings was addressed and the plaintiff was asked about his parents’ knowledge of what he could do on the farm. He responded:

They fully understood the extent of the operation I had and that, you know, I could perform the tasks that were better suited to me and if need be, stop when I had to, obviously to rest or not to injure myself or my back any more.

He was asked about Mr Brazenor’s ‘tone’ when giving advice. The plaintiff said that he was ‘laid back about the – um – knowing me that I was on the farm’.
Further evidence called on behalf of the plaintiff

The plaintiff called a physician, Mr Lewis, an occupational therapist, Ms Arnold, and a physiotherapist, Mr Jamieson, from the Epworth Facility for Rehabilitation, who described the plaintiff’s pain and disabilities consequent upon the second injury.

The plaintiff called an orthopaedic surgeon, Mr Brian Barrett, who saw the plaintiff on a referral from his general practitioner in July 2011. In evidence-in-chief he was asked about the significance of the 17 March 2005 incident and he said:

… the injuries to the disc are progressive … you can start to split the disc and you don’t feel it … as time goes on, that split gets further and further out … [addressing 17 March 2005 specifically] … obviously there’s been a significant insult to the physical integrity of the disc … obviously a significant worsening at that time because of that particular activity …

In cross-examination Mr Barrett was asked to endorse the warnings which it was said Mr Brazenor had given, including the ‘guaranteed demolition’ warning. He did so. Mr Barrett said he would have warned the plaintiff against performing any farm work.

In re-examination the critical contentious issue in the case was brought into sharp focus. Mr Barrett was asked questions about what an employer who was present and heard the warnings ought to do. Objection was taken to the question, and the answers became hard to follow but the thrust of the area of contention between the parties must have been very clear to the jury by then. One of the most important points the defendants wished to make was that the plaintiff was to blame for his own injury because he went back to farm work against very strong medical advice that he not do so. The plaintiff’s response to that was twofold. First, the plaintiff sought to reduce the strength of the advice that was given. Secondly, and more importantly, the plaintiff’s case was that any warning given to the plaintiff had also been given to the defendants, in particular to the second defendant, the plaintiff’s mother.

Evidence was given on behalf of the plaintiff by Mr Plover, an actuary.

Two neurosurgeons gave evidence on behalf of the plaintiff, Mr Paul D’Urso and Mr Richard Bittar.

Mr D’Urso expressed the opinion that the incident on 17 March 2005 had ‘contributed’ to the symptoms which the plaintiff had subsequently suffered and ‘probably has contributed to some degree’ to the damage to the L3-L4 disc. Mr D’Urso expressed the opinion the plaintiff was permanently incapacitated for full time work. In cross-examination he said the L3-4 disc had degenerated progressively and that its failure was the result of ‘cumulative bi-mechanical stress and activity’. Mr D’Urso was asked about what were said to have been Mr Brazenor’s warnings. Mr D’Urso’s opinion was that his own warnings would

have been less emphatic against all farm work and would rather have been directed towards restrictions on farm work.

Mr Bittar expressed strong opinions about the significance of the 17 March 2005 incident, saying that the work that day ‘played a significant role in the L3-4 disc prolapse and his requirement for surgery’. In cross-examination he was asked about Mr Brazenor’s warnings and he endorsed them. He said he would have warned the plaintiff not to go back to farm work at all.

Evidence was given by Ms Sillcock, an occupational physician, as to the plaintiff’s continuing capacity for work.

The plaintiff called evidence from an expert ergonomist, Mr Mark Hennessy. Mr Hennessy had examined the harvesting machine. He expressed the opinion that the plaintiff had been put at risk by being required to work in a plastic chair with minimal lumbar support and in circumstances which were hazardous because he was required to work in an awkward posture. He detailed a great range of steps which might have been taken to address this risk including compliance with the relevant regulations, as pleaded by the plaintiff, responding appropriately to the plaintiff’s request to stop work, and providing a better seat.

In cross-examination Mr Hennessy agreed that he had never seen a tobacco harvesting machine before. He agreed that this machine constituted an improvement on manual harvesting. He agreed that if Mr Pasqualotto Senior on his family farm had produced or procured a machine in accordance with Mr Hennessy’s requirements that may well have been ‘a world first’. He was also asked about prior assessments he had made of equipment used on a small family farm and he agreed that he could not think of a prior case where he had undertaken that task. He agreed that if he went back to his office to see if he could find one he might come back empty handed.

The plaintiff called Ms Velisaris who is a clinical psychologist and who addressed issues of pain management.

The plaintiff’s case then closed.

The defendants’ case

The first witness called by the defendants was a general surgeon, Mr Kenneth Brearley. Mr Brearley had initially seen the plaintiff at the request of the plaintiff’s solicitors for a medico-legal opinion in relation to the car accident in 1994. He had seen the plaintiff in 1999 and in 2000 and had seen him again in 2007. He gave evidence as to the plaintiff’s condition in 2000. Mr Brearley’s evidence was that the plaintiff was suffering symptoms and had a limitation in his work capacity. To that extent, this was inconsistent with the plaintiff’s case that he recovered very well from the first operation. He was asked about Mr Brazenor’s warnings and he agreed with them. When asked what his advice would have been to the plaintiff about performing farm work he responded: ‘No, absolutely not’.

In cross-examination Mr Brearley agreed that the plaintiff had had a good result from the double fusion operation after the car accident. It was put to him that the real issue was not whether he did work on the farm but what work he did, in response to which Mr Brearley said: ‘He should be limited very much indeed’. He suggested that he could have done management duties. He agreed that he never should have been doing harvesting work. When the description given by the plaintiff in his evidence of what had occurred on 17 March 2005 was read to him, Mr Brearley expressed the opinion that the events that day ‘would certainly have a very deleterious effect on the L3-4 disc … a very bad, sort of, management there, I would say’. He went on to suggest it was entirely inappropriate for the father to tell the ‘patient’ to continue working when he was already in pain.

In re-examination he agreed that the likely outcome of non-adherence to the advice not to work on the farm was a ‘significant increase in his back pain and significant increase in destruction of the L2-3 disc - L3-4 disc’.

The next witness was the plaintiff’s father, the first defendant. Before he was called counsel for the plaintiff raised Browne v Dunn.

Counsel for the plaintiff submitted that nothing had been put to the plaintiff suggesting that his parents would dispute what he had said about his father’s conduct or about his mother’s attendance with him at consultations with Mr Brazenor. Senior counsel for the defendants submitted that the plaintiff had given no direct evidence of his mother’s attendance on any specific occasion where the warnings were given. After hearing submissions, the trial judge observed that he agreed with counsel for the plaintiff in relation to the father’s conduct but that as to what had been said about the mother’s attendance at the appointments he agreed with the submissions which had been made by senior counsel for the defendants that the plaintiff had not been specific in his evidence on that issue and that his evidence was ‘open to interpretation’. In the course of this interchange counsel for the plaintiff suggested that the knowledge of the employers about the plaintiff’s condition was the central point in the case. During this interchange no reference was made to evidence which might be given by Mr Brazenor. The context in which this interchange took place was the impending evidence of one or other or both of the defendants. The expressed concern was that they might give evidence of matters not put to the plaintiff.

The defendants called two further witnesses, the plaintiff’s father, Renato Pasqualotto, and Mr Brazenor. The plaintiff’s mother was not called.

In evidence-in-chief Mr Renato Pasqualotto was asked about the plaintiff’s work on the farm after the first operation. The following interchange occurred:

And are you able to tell the court generally, given that he’d had the previous back operation, what approach firstly did Adam take to his work, that you observed? - - - Well he started off with lighter duties.
Yes? - - - As he come back and after 12 months, he was capable of doing most of the – most of the work, apart from the heavy, heavy lifting and - - -
Yes, did he avoid the heavy, heavy lifting? - - - Yes.
Yes. And were there – can you recall whether there were any other matters that he avoided, apart from the heavy, heavy lifting? - - - No.
And insofar as your approach to him was concerned, what approach did you take to him if he needed to have a spell or things like that? - - - Well he worked at his – at his own pace.

He also said that if he needed to have a spell he’d take a spell.

Mr Renato Pasqualotto was asked about the harvesting machine. He described how the machine had made harvesting easier for the workers by eliminating lifting. He described the care that he took of the machines. He said he bought the machine new and that he played no part in its design.

When asked again about the plaintiff’s return to work on the farm after the car accident Mr Pasqualotto said:

He – he was, um, he was pretty right when he – he came back – I – apart from the heavy lifting and that. He was quite capable of doing everything he had to do apart from try and avoid some of those heavier lifting jobs.

He was asked about harvesting and he said it was not possible to take a break whilst harvesting because you are picking in a team of five. He was asked about 17 March 2005. He said that ‘towards the end of the day’ his son had asked if he [the father] could take over and do ‘the last run’. He said he had responded that he could not and had said to him that he should try and do another run. He gave an explanation in his evidence of why it was that he had not been able to take over at that point. He was asked why the machine had to have five people on it and he gave an explanation of why the job could not be done by four. Both explanations concerned the need to ensure the storage bins were not left half full.

He was then asked about harvesting more generally. He said that during harvesting the pickers worked 12 hours a day. He said that the plaintiff had been part of the picking team from when he came back on to the farm right up until 2005.

Mr Pasqualotto said that the plaintiff had never before asked for someone else to take over during harvesting.

He was asked about the seat on the harvesting machine and whether a different kind of seat, such as the kind which he had on his tractor, might have been used on the harvesting machine. He said that a seat like that would not have worked because of its size.

In cross-examination Mr Renato Pasqualotto agreed that he was the ‘boss’ and that he determined how the farm was run and what the employees should do. He agreed that the harvesting work was heavy and intensive involving continuous bending and twisting and that the new machinery had not changed that aspect of the work for pickers. He agreed that he had been with his son in hospital in 1997 and that he knew he had had a fusion operation. He agreed that he did not change the harvesting system after Adam’s fusion operation.

Breach of the rule in Browne v Dunn – Ground 12

The appellant contends that counsel for the respondents failed to comply with the rule that contradictory evidence must be put to a witness, by not challenging the appellant’s evidence about the second respondent’s attendance at consultations with Mr Brazenor, and that as a consequence the trial judge ought to have precluded the respondents from leading evidence from Mr Brazenor about attendance at consultations by the second respondent. The relevant rule is usually known as the rule in Browne v Dunn.

The relevant consultations were those which occurred after the first operation in 1997 and before the incident on 17 March 2005. In his evidence-in-chief Mr Brazenor identified four specific consultations where he gave warnings. They were on 12 December 1998, 14 April 1999, 9 February 2000 and 15 December 2000. In cross-examination he accepted, after being pressed, that he had warned the appellant about farm work every time he saw him.

The aspects of Mr Brazenor’s evidence which are critical to this ground of appeal are his evidence that his recollection was that the appellant’s mother rarely attended consultations and that he saw her only once or twice throughout the whole course of his treatment of the plaintiff (that is, not just the period between the first operation and the incident on 17 March 2005), that his habit was to note the attendance of those who came to consultations, and that the only time he had noted the appellant’s mother’s attendance was on 16 May 2005 (that is, after the relevant period for these purposes).

The issue of the mother’s attendance at Mr Brazenor’s consultations was important because it was a significant matter relied upon by the appellant in order to meet the respondents’ case that he was responsible for the injury he suffered because he had been warned not to go back to farm work. One of the things the appellant wished to establish was that the respondents, as a result of the mother’s attendance at relevant consultations with Mr Brazenor, were aware of any advice or any warnings which Mr Brazenor gave the appellant.

It was known from the outset of the trial that the mother’s attendance at appointments with Mr Brazenor between the first operation and the incident on 17 March 2005 was an important matter. Counsel for the appellant opened to the jury that the appellant would give evidence about his mother’s attendance at Mr Brazenor’s consultations. Counsel’s opening in that respect fairly reflected what the appellant’s own evidence subsequently was. The appellant did not purport to be able to say that his mother attended specific consultations, but rather said that she regularly attended appointments with him.

The proposition that the appellant did not consider that Mr Brazenor had ‘precluded’ him from working on the farm was also opened to the jury, and that also reflected what the appellant’s own evidence subsequently was. This potentially complicated the issue because it was not clear that the advice the appellant says he received was the same as the advice Mr Brazenor says he gave.

In his evidence-in-chief it seems to me that the appellant gave as much detail as he could recall about his mother’s attendances at consultations with Mr Brazenor. I have previously observed that the evidence he gave in that respect was open to different interpretations. He was cross-examined about that evidence. As I have previously quoted, under cross-examination his evidence was that his mother was ‘always – always with me on most, whenever she came down.’

As I indicated earlier, the appellant’s counsel announced before empanelment that he did not intend to call Mr Brazenor, notwithstanding that he was without any doubt the appellant’s principal treating medical practitioner. Prior to empanelment, counsel for the respondents had indicated that they might call Mr Brazenor themselves.

Counsel for the appellant at trial first raised the issue of Browne v Dunn in the context of the impending evidence of the first respondent, the appellant’s father. As I indicated in my earlier review of the trial, the trial judge accepted some of the matters put in that context by counsel on behalf of the appellant but did not accept what was then being put in relation to the evidence of the mother’s attendance at appointments. At that point counsel for the respondents maintained that no evidence had been led from the appellant to the effect that his mother had been present when a warning by Mr Brazenor was given.

The judge indicated then that he was ‘inclined to agree’ with senior counsel for the respondents and he made reference to what he described as a change of mind mid-sentence. This seems to me to have been a reference to the answer in cross-examination to which I have just referred (‘always’, ‘most’, whenever’).

In response to counsel for the appellant quoting a passage from the appellant’s evidence-in-chief which counsel for the appellant interpreted as meaning that other than an occasion when his girlfriend attended his mother went on all other occasions, the trial judge said:[39]

That’s right and that might enable you then to submit to the jury that an inference can be drawn that she was there at a particular time but I don’t think it engages a Brown v Dunne point.

[39]There is a typographical error in the transcript.

The first respondent gave evidence about his wife’s attendances on Mr Brazenor which was not subject to objection. His evidence was, it seems to me, generally supportive of, or not inconsistent with, the appellant’s evidence on this issue. But he was vague on this issue, which is perhaps unsurprising given the elapse of time. Significant reliance was placed by the appellant’s counsel on the answer to interrogatories. As I have earlier explained, that answer was not necessarily consistent with the appellant’s case on this point.

Mr Brazenor was called by the respondents and the Browne v Dunn issue arose again in the course of his evidence-in-chief. He was asked by the respondents’ counsel whether he could say ‘from your records’ whether the appellant’s mother was present on any of four specific occasions (12 December 1998, 14 April 1999, 9 February 2000 and 15 December 2000) when he said he had warned the appellant about returning to farm work. Counsel for the appellant objected to the question on the basis that it had not been put to the appellant in cross-examination and his Honour responded:

Mr Ingram, we debated this in the absence of the jury and I made a ruling at that time.

His Honour allowed the question to be asked.

Counsel for the appellant raised the matter again in the course of Mr Brazenor’s cross-examination when he interrupted an answer to his own question to object that the witness’s evidence had not been put to the appellant. The judge sent the jury out and emphasised to counsel for the appellant in firm but polite terms that a ruling had been made on that issue.

When the jury returned, Mr Brazenor continued his answer. That was the answer where he said that the only consultation at which he had noted Mrs Pasqualotto as being present was the one on 16 May 2005 and that it was his ‘habit’ to record those present.

In the course of the interchange between counsel for the appellant and the trial judge during Mr Brazenor’s cross-examination (in the absence of the jury) the trial judge twice referred counsel to the fact that he could apply under s 46 of the Evidence Act2008 (Vic) to recall the appellant. Counsel for the appellant responded saying that a recall of the appellant would be ‘tactically a disastrous course to follow.’

Counsel for the appellant never explained why recalling the appellant in order to address evidence which it was contended had never been put to him would be tactically disastrous. The opportunity to recall the central witness after the other party’s case has been closed in order to deal with a matter which opposing counsel had failed to put can be tactically advantageous. I do not know why it was seen to be ‘tactically disastrous’ in this case. It may have been disastrous if the appellant had been recalled and could not give any convincing response. But the reasons for counsel’s conclusion, whatever they were, were not proffered. In his reply

submissions on this appeal counsel for the appellant submitted ‘it is not for the appellant to try to redress the respondents’ failure … by recalling the applicant’.[40]

[40]Appellant’s reply to the Respondent’s submissions, p. 3.

After Mr Brazenor’s evidence had concluded, the trial judge raised the issue again. He said that he had been thinking about the matter and that he had looked at the transcript closely and had come to the view, subject to hearing the parties further, that there had been a failure to put matters to the appellant that ought to have been put and that he proposed to deal with it in his charge. For the third time, he referred counsel for the appellant to the option of applying to recall the plaintiff under s 46 of the Evidence Act.

In the charge the trial judge said the following:

The next topic I want to deal with is what I will call the ‘fair go in court rule’. There is an important rule of practice in our courts and it operates this way. If a witness gives evidence and the other party intends to call evidence which is contrary to the evidence given, or to put a proposition to the jury contradicting the other side’s case, then cross-examining counsel should put to that witness that contradictory evidence or proposition. There is a good reason for this. It gives the witness a chance to deal with the contrary evidence or proposition and it gives the party who has called the witness the opportunity to call additional evidence when the issue is raised in cross-examination.
For example, if hypothetically a party intends to call a person to say that a witness that is being cross-examined made a threat, that party must ask the witness during the cross-examination whether he or she made the threat. It is only fair that this be done so that the witness has a chance to deal with that matter.
In this case you will recall that on a number of occasions Mr Middleton [senior counsel for the respondents] put to the plaintiff what he expected Mr Brazenor would say about the advice that he gave to the plaintiff. However, Mr Middleton did not put to the plaintiff that Mr Brazenor would say that the plaintiff’s mother never accompanied him in the consultation room other than on one occasion, 16 May 2005, which he had recorded. You can take into account the fact that the plaintiff was not given the opportunity to deal with this matter in deciding what weight to give Mr Brazenor’s evidence on this matter.

Later the trial judge summarised for the jury of the appellant’s counsel’s submissions in final address on this aspect of the case.

Browne v Dunn itself concerned a trial in which a series of parties gave evidence in relation to a transaction. They were not cross-examined on their evidence, and submissions were then made to the jury to the effect that the particular arrangement was a sham. The House of Lords expressed its disapproval of this course in very strong terms.[41] The point at issue in that case was a failure to put to a witness matters on the basis of which it was subsequently to be submitted that that witness was not telling the truth. Lord Herschell LC admitted an exception in a case where notice had distinctly and unmistakably been given so that it was not necessary to waste time in putting the matter to the witness,[42] and Lord Morris observed that sometimes a witness’s evidence might be so incredible as not to require cross-examination.[43] The effect of the judgments in Browne v Dunn was that counsel should not have been permitted to make submissions to the jury to the effect that a witness’s evidence was not credible when that witness’s evidence had not been challenged in cross-examination.
[41]Browne v Dunn, 70 (Lord Herschell) and 76-7 (Lord Halsbury).
[42]Browne v Dunn, 71.
[43]Browne v Dunn, 69.

The ambit of the rule in Browne v Dunn has expanded beyond the specific circumstance dealt with by the House of Lords in that case so as to encompass, not simply an obligation to put matters on the basis of which a submission was subsequently to be made that the witness was not to be believed, but any contradictory evidence proposed to be called and the ‘nature of the case’ proposed to be relied upon in contradiction to the witness’s evidence, including where that case relies upon inferences to be drawn rather than directly contradictory evidence.[44]
[44]Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16 (‘Allied Pastoral’).

A comprehensive analysis of the rule in Browne v Dunn was undertaken by Newton J in Bulstrode v Trimble.[45]After a detailed review of the authorities, Newton J concluded that the rule in Browne v Dunn has two aspects. First, it is a rule of practice and procedure designed to achieve fairness to witnesses and a fair trial between the parties. The second aspect relates to the weight or cogency of the evidence. That is, evidence which is unchallenged ought to be accepted, or ought to be accepted in the usual case. This analysis of the dual character of the rule has been adopted in Australia ever since.[46]
[45][1970] VR 840 (‘Bulstrode’). Newton J’s analysis relied heavily on detailed submissions by counsel in the case, Mr W F Ormiston later Ormiston JA of this Court.
[46]Allied Pastoral, 18; Advanced Wire & Cable Pty Ltd v Victorian WorkCover Authority v Mohamed Abdulle [2009] VSCA 170, [13] (‘Advanced Wire’).

Newton J in Bulstrode observed that where the first aspect of the rule (fairness) was under consideration, the situation ‘in many cases’ could be remedied by recall of the witness or witnesses.[47] That is less likely to be the case in criminal cases than in civil ones.
[47]Bulstrode, 847.

Newton J in Bulstrode made a number of relevant observations about the second aspect of the rule (weight). He observed that if evidence is unchallenged in cross-examination that will often be a very good reason to accept it; this, he said, is no more than common sense.[48] Notwithstanding that, a tribunal of fact is not required to accept evidence because it has not been challenged in cross-examination,[49] but the failure to cross-examine a witness as to a particular matter is something which ought to be taken into account.[50]
[48]Bulstrode, 848.
[49]Bulstrode, 849.
[50]Bulstrode, 849-850.

In Allied Pastoral Hunt J in the New South Wales Supreme Court observed that Newton J’s observations about the second aspect of the rule in Browne v Dunn might be considered doubtful in the light things Gibbs J (with whom Stephen and Murphy JJ agreed) said in the High Court decision in Precision Plastics Pty Ltd v Demir.[51] I do not think that is the case. What Gibbs J said in Precision Plastics was that a jury might be ‘bound’ to accept unchallenged evidence. But it is clear that what he meant, and then said, is that in particular circumstances it would be unreasonable for a jury to do otherwise. The particular circumstance which Gibbs J was addressing in Precision Plastics was evidence given by an injured plaintiff which was not only unchallenged in cross-examination but which was entirely uncontradicted by other evidence.
[51](1975) 132 CLR 362, 371 (‘Precision Plastics’) – not 372 as cited in Allied Pastoral, 18.

This Court has confirmed that the rule in Browne v Dunn does not mean that contradictory evidence, which should have been put to the witness but which was not, cannot be considered; rather, it is a matter of weight for the Court to take into account.[52]
[52]Advanced Wire, [14]. That is also the position at which Hunt J eventually arrived in Allied, see 26.

The appellant’s complaint here concerns the first aspect not the second aspect of the rule in Browne v Dunn. On any view, what the trial judge said in the charge correctly instructed the tribunal of fact as to the significance of the failure to cross-examine on the issue of weight.

What is put here is that what occurred was unfair to the appellant and resulted in an unfair trial. What is submitted is that the only way in which the trial judge could fairly have addressed the position was to preclude the evidence given by Mr Brazenor about the mother’s attendance at appointments altogether.

Where the rule in Browne and Dunn is not complied with, the trial judge has a discretion as to how best to address the unfairness. The judge may permit, or may order, the recall of a witness. A party might be precluded from addressing on a particular matter. The judge may give directions to the jury and make comments. In some cases only a new trial can adequately address the unfairness.[53]
[53]See Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1.

The possibility of precluding the calling or leading of the contradictory evidence at all, in a civil case, was not one of the options Newton J referred to in Bulstrode,[54] but that possibility was referred to in the Supreme Court of South Australia not long after the Bulstrode decision.[55] It was also referred to as an option by Hunt J in Allied Pastoral.[56]
[54]See particularly 847 and 850.
[55]Reid v Kerr (1974) 9 SASR 367, 375.
[56]Allied Pastoral, 22.

It is clear that a failure to comply with the rule in Browne v Dunn does not require the judge to preclude leading the contradictory evidence.[57]
[57]Fleet v District Court of New South Wales [1999] NSWCA 363, [64] and Scalise v Bezzina & Ors [2003] NSWCA 362, [97].

A case particularly relied upon by the appellant in support of the contention that the trial judge in this case ought to have precluded the respondents from leading the contradictory evidence is the decision of the Court of Appeal of New South Wales in Payless Superbarn (NSW) Pty Ltd v O’Gara.[58]
[58](1990) 19 NSWLR 551 (‘Payless’).

Payless concerned a jury trial in the District Court where a plaintiff had claimed damages for personal injury suffered when she allegedly slipped on a grape on a supermarket floor. It was not put to the plaintiff during her evidence that there had been no grape on the floor when she fell. The respondents then sought to call the manager of the supermarket to give evidence that there had been no grape there. The trial judge refused to allow that evidence to be led.

The New South Wales Court of Appeal considered the trial judge’s decision to preclude the calling of the contradictory evidence in some detail but, in the end, that was not the basis upon which the appeal was decided. The basis upon which the appeal was decided was that the appellant had failed to make out a case for a new trial because of the high degree of improbability that the proposed evidence from the manager would have influenced the jury at all.[59]
[59]See Payless, 558 (Clarke JA) and 552 (Priestly JA).

As to the judge’s decision to preclude the calling of the evidence, Clarke JA (with whom Priestley and Meagher JJA agreed) observed that that had been an ‘extreme step’ which would ‘not normally’ attend a breach of the rule in Browne v Dunn.[60] The Court did not have a transcript of the argument before the trial judge or of the trial judge’s reasons and Clarke JA speculated that there may have been irreparable prejudice because of the unavailability of witnesses to be recalled or there may have been cogent reasons why the course of discharging the jury was not a preferable course to rejecting the evidence.[61]
[60]Payless, 557.
[61]Payless, 557-8.

The course of precluding the evidence was seen as extreme but not necessarily erroneous. Clarke JA said:

However as I have sought to point out it may be going too far to say that a judge is never entitled to reject evidence which is relevant and otherwise admissible because of a breach of the rule in Browne. My tentative view in this case is that the appellant has failed to demonstrated that his Honour erred.[62]

As the matter was discretionary, the principles in House v The King[63] applied.[64] Clarke JA expressed a ‘tentative’ view that error had not been demonstrated in that case, but decided the appeal on the ground that the contradictory evidence could not have affected the outcome in any event.

[62]Payless, 558.

[63](1936) 55 CLR 499.

[64]Payless, 557.

In this context observations by Gummow, Kirby and Callinan JJ in MWJ v R[65] are relevant. They said:

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put.

[65][2005] HCA 74, [40].

It can be argued that the provisions of the Evidence Act 2008 fortify an approach whereby contravention of the rule is to be addressed by recall of the witness rather than exclusion of the evidence in all but exceptional cases.[66] Section 56 provides that relevant evidence is admissible except as otherwise provided by the Act. The Act expressly and specifically deals with breach of the rule in Browne v Dunn by providing in s 46 for the Court to give leave to recall the relevant witness. That argument was not put here, and in view of the conclusion I have otherwise reached it is unnecessary to consider it. Section 11 of the Evidence Act would also be relevant to a consideration of that argument.
[66]See ALRC Report 38 (1987) at [115]; Cross on Evidence at [17460]; The New Law of Evidence, 2^nd Edition (Anderson, Williams and Clegg) at 638, [135.8]; JCV Uniform Evidence Manual, notes to s.46.

Returning then to what occurred here, the position seems to me to be as follows.

The judge initially ruled that the rule in Browne v Dunn had not been engaged. He made that ruling in the context of a concern that the respondents (not Mr Brazenor) might give evidence contradictory to the appellant. As matters transpired, that concern did not eventuate. A complicating factor at that time was that it remained a matter of controversy as to what the warning was.

When Mr Brazenor gave evidence-in-chief and objection was taken the trial judge ruled that his prior ruling applied.

The evidence that Mr Brazenor then gave contained an element which was new. That was that he had the habit of recording who attended and that he had not recorded the mother’s attendance except on one occasion, 16 May 2005, a date outside the critical period.

In this respect, it seems to me that the most concerning aspects of Mr Brazenor’s evidence from the appellant’s point of view were given during cross-examination. After Mr Brazenor’s evidence, the confusing complication raised by the controversy as to what the warning was dissipated, so much so that the appellant’s grounds of appeal now expressly rely on Mr Brazenor’s version of his warnings (grounds 3(c), 7(c), 8(c), 9(a)(iii)).

After the evidence but before addresses, the judge told the parties he had reconsidered the position and had determined that there had been a failure to comply with the rule in Browne v Dunn.

Over the course of what I might call the Browne v Dunn controversy during the trial, the judge effectively invited counsel for the appellant to apply under s 46 of the Evidence Act on three occasions. Thus, he repeatedly invited counsel for the appellant to take the course which the High Court has observed ‘almost always’ mitigates or cures any unfairness created by failure to comply with Browne v Dunn.

The judge addressed the issue of weight (the second aspect of the rule in Browne v Dunn) in appropriate terms in the charge.

No application for a discharge of the jury was ever made.[67] The only alternative course proposed to the trial judge was exclusion of the evidence, the course Payless describes as ‘extreme’.
[67]In the appellant’s written submission (at [10]) reference is made to the fact that breach of the rule can be a basis for discharge but what is submitted ought to have been done here is ‘the disallowance of this evidence of Mr Brazenor’.

In my view this ground of appeal should be rejected.

One submission made was that the trial judge made no ruling. Clearly, he did. He permitted the contradictory evidence of Mr Brazenor to be led on the basis that the rule in Browne v Dunn had not been engaged, but he formed a different view after his evidence and he advised the parties that he had done so. So, eventually the position was that the judge found there had been non-compliance and the issue was how it was to be addressed.

Where there is non-compliance with the rule in Browne v Dunn a trial judge has a number of avenues which may be pursued in the exercise of his discretion. As what is in issue is a discretionary judgment, an appellate court will only intervene if there has been a demonstrated error or if the decision is such that it can be inferred that some error must have been made. No such error has been demonstrated here. The obvious course to address the position which arose was to recall the appellant. The judge invited that course three times. It would have been an extreme and unusual course to address the situation by precluding the respondents from leading relevant and admissible evidence. It has not been demonstrated that the judge was in error in refusing to take that course.

Interwoven into the submissions as to Browne v Dunn are references to the respondents’ failure to call the second respondent and to Jones v Dunkel.[68]
[68](1959) 101 CLR 298.

There is no separate ground of appeal on this basis, but the failure to call the second respondent was said, in effect, to compound the unfairness of the breach of the rule in Browne v Dunn. The judge dealt with the Jones v Dunkel issue in his charge in appropriate terms and added a comment helpful to the appellant. This factor does not alter my conclusion on this ground of appeal.

Erroneous directions as to contributory negligence – grounds 8 and 10

These grounds, in substance, contend that the trial judge ought to have directed the jury that the issue of contributory negligence was not open in this case as a matter of law. I have read in draft the reasons of Osborn JA on this issue and I agree with what he has said.

Jury verdict on contributory negligence not open – grounds 3, 4, 5, 6, 7 and 9

I would reject these grounds of appeal. The test in relation to appellate intervention on a jury verdict as to apportionment is relevantly the same as that which applies to other jury verdicts in the civil context. A verdict on apportionment will only be set aside if it is such that no reasonable jury could have reached that conclusion.[69] In my view, this is not such a case, substantially for the reasons I have set out in my analysis of grounds 1 and 3.
[69]Zoukra v Lowenstern [1958] VR 594, 596.

Non obstante – ground 11

I would reject this ground. The errors contended for are the same as those contended for in other grounds of appeal which I have rejected for the reasons given.

[2013] VSCA 21

19 February 2013