Petrovic v Taara Formwork (Canberra) Pty Ltd

[1982] FCA 218

Re: ZIVAN PETROVIC
And: TAARA FORMWORK (CANBERRA) PTY. LIMITED (1982) 62 FLR 451
No. ACT G31 of 1982
Courts - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Kelly(1) and Fitzgerald(1) JJ.

CATCHWORDS

Courts - Practice and Procedure - Discretion of trial Judge - Trial of action for damages - Witness as to critical medical issue absent due to death of relative - Lay witness not in attendance although need for presence foreseeable - Application for adjournment for relatively short period - Application refused - Whether discretion correctly exercised - Whether admission of liability may be withdrawn on appeal.

Courts - Practice and procedure - Trial of action for damages for personal injuries - Expert witness unable to attend court following death of mother - Application for adjournment - Opportunity to call lay witness requested - Whether adjournment should have been granted - Discretion of trial judge - Whether discretion correctly exercised.

Evidence - Film taken by insurance investigator admitted in evidence - Whether film should have been previously shown to plaintiff or medical witnesses - Finding of trial judge.

HEADNOTE

The plaintiff appellant (the appellant) was awarded an amount of $38,938 and costs in an action for personal injuries heard in the Supreme Court of the Australian Capital Territory, constituted by a single judge. The appellant contended that the sums awarded for general damages ($15,000) and future economic loss ($15,000) were too low and sought a retrial of the action limited to the issue of damages.

The appellant had sued his employer, the defendant respondent company (the respondent) for damages following two separate physical injuries which he received in the course of his employment.

The case pleaded for the appellant was that he would be unable to work for an indefinite period as a result of his injuries which included a functional illness and disability. The respondent contended that the appellant was a malingerer who had exaggerated his incapacity to work.

The hearing commenced on Thursday 24th June, 1982, and the appellant was cross-examined about building activities he had carried out after the accident for a contractor, Mr. P. The following Friday afternoon, counsel for the appellant advised the court that a psychiatrist, Dr. T., was unable to attend court as her mother had died that morning. An adjournment was requested until Monday 28th June, 1982, for the purpose of calling Dr. T. and also the lay witness Mr. P., to give evidence on behalf of the appellant, but the adjournment was refused. Counsel for the appellant then tendered Dr. T.'s report and closed the case for the appellant.

The first witness for the respondent was an insurance investigator who had taken a film of the appellant which was admitted in evidence and shown to the court. Subsequently, the respondent's defence was amended to admit liability for the second accident, but the respondent continued to deny liability for the first accident and maintained a plea of contributory negligence for both accidents.

The appellant's three relevant grounds of appeal were that the learned trial judge had erred in law: (1) in refusing an adjournment to permit the appellant to call Dr. T., his psychiatric witness, as a functional illness and disability was an essential element of the case; (2) in failing to grant the appellant an adjournment to call the witness, Mr. P.; (3) in permitting the defendant to show films of the appellant without such films having been shown or put to the appellant or put to any of the medical witnesses.

Held: (1) It was open to the learned trial judge to form the view which he took of the film of the appellant which had been shown to the court and which gave a vastly different picture from that portrayed by the appellant in evidence.

(2) The learned trial judge's refusal to give the appellant a further opportunity to call the witness Mr. P. was not unfair to the appellant as the need for Mr. P.'s attendance was plainly foreseeable.

(3) It was less than satisfactory to refuse the appellant an adjournment so late on a Friday afternoon when a witness whom he wished to call was absent for such an excellent reason as the death that day of her mother and it was plain that otherwise the witness would have attended the court.

Squire v. Rogers (1979) 39 FLR 106; McInnis v. The Queen (1979) 143 CLR 575; Bloch v. Bloch (1981) 55 ALJR 701, referred to.

(4) Accordingly the appeal would be allowed.

(5) A new trial of the appellant's action against the respondent would be ordered to be held, limited to assessment of damages.

HEARING

Canberra, 1982, October 15. #DATE 15:10:1982

APPEAL.

The appellant appealed from a decision of the Supreme Court of the Australian Capital Territory constituted by a single judge and sought a retrial of the action for personal injuries limited to the issue of damages.

The facts appear in the judgment.

P.L.R. Sheils, for the appellant plaintiff.

R.J. Burbidge Q.C. and J.S. Hulme, for the respondent defendant.

Cur. adv. vult.

Solicitors for the appellant plaintiff: Pamela Coward & Associates.

Solicitors for the respondent defendant: Curwood & Derkenne.

J.D. WHITEHEAD

ORDER

1. The appeal be allowed.

2. There be a new trial of the appellant's action against the respondent limited to the assessment of damages.

3. The respondent pay the appellant's costs of this appeal and of the first trial. Orders accordingly.

JUDGE1

The appellant was at all material times an employee of the respondent and sued the respondent for damages in respect of personal injuries which he received in the course of his employment on two separate occasions. On the first he injured his left shoulder and on the second his lower spine.

The learned Judge of the Australian Capital Territory Supreme Court before whom the action was tried found for the appellant and awarded him an amount of $38,938.00 and costs. The appeal seeks a re-trial of the action limited to the issue of damages. The appellant complains that the sums awarded for general damages ($15,000) and future economic loss (also $15,000) were too low. His submission is for the purposes of the appeal wholly founded upon the complaints which he makes about the course which the trial took.

The hearing commenced on Thursday 24 June 1982 and the only witness that day was the appellant himself. Towards the end of his examination in chief he was asked questions relating to activities which he had carried out in and about building operations after the accidents. He was cross-examined that day on this matter at some length. The cross-examination extended to activities which he carried out on behalf of a friend, a formwork contractor, one Rudi Pasic. None of that is particularly surprising, since it was the appellant's case, as pleaded, that as the result of relatively minor physical injuries he would be unable to work for an indefinite future period. Included in the medical reports which the appellant produced to the respondent prior to trial were reports from a psychiatrist, Dr. M.R. Tennant. After referring to what she had been told by the appellant, Dr. Tennant's final report of 10 May 1982 concluded:-

"He was mildly depressed when seen - that his condition was chronic and would not improve and that he could not hope to return to a full and active working life.
His overall condition had deteriorated. He had become much more confirmed in a sick role and his goals had become those of adjusting to his sickness.
At this time, I felt much less confident that he could be returned to any full-time working situation although I believe he can probably do part-time work where he can take his own time and rest as necessary. He has work skills that do enable him to get more casual work in the carpentry or maintenance line."

If the appellant had fully disclosed his activities to his legal advisers one would expect that it would have been obvious to them well prior to the trial that Mr. Pasic might be required and should be available to give evidence. They probably ought have suspected that the respondent would have film of the appellant. In any event, by the time the Court adjourned on the Thursday afternoon, they can have been in no doubt whatever from the cross-examination that it was at least a real possibility that Mr. Pasic would be required to give evidence. No attempt was made to contact him at that point.

On the Friday the appellant's evidence continued. Then his wife and several doctors were called. Counsel thought that the last doctor had not arrived when the time came to call him on the Friday afternoon and dealt with some ancillary matters. The following passage appears in the transcript:-

"MR.SHEILS: Your Honour, I propose to tender to your Honour some answers to interrogatories. I understand there is agreement about some financial matters. Dr. Tennant was to come this afternoon but her mother died this morning and we have been notified that she cannot get here. I will ask your Honour for an adjournment because I am going to call her. Dr. Niewiadomski was to come this morning we were hoping but he could not get here at that stage and he cannot come this afternoon. I am sorry, your Honour, he is hoping to be here by 3.30. At one stage it was anticipated that he could not come. He was the general practitioner at the time of the accident. I have no doubt I can fill out that time because I have got other matters to put to your Honour.
Your Honour, I feel in the circumstances I should inform your Honour that I am going to try and contact Mr. Pasic who is not, of course, in Canberra. He is in New South Wales and ask him to come to court.
Dr. Niewiadomski is here, your Honour, I did not realise that. Perhaps I should raise these matters afterwards. Might I call Dr. Niewiadomski?
HIS HONOUR: Yes."

The doctor was then called. At the end of his evidence counsel for the appellant tendered a schedule containing certain wage details, a copy of a 3% table prepared by an actuary, and some answers to interrogatories. It was then about 3.45 on Friday afternoon, 25 June 1982.

It is convenient to let the transcript describe what then occurred:-

"MR. SHEILS: Subject to being able to call Mr. Pasic, who I will attempt to contact during the weekend, and Dr. Tennant who I understand will be available on Monday, that will be the case for the plaintiff. It is now, your Honour, only quarter to four and I would have to ask your Honour to adjourn the proceedings. I am sorry, I have no other witnesses.
HIS HONOUR: What is the defendant's attitude?
MR. HULME: Your Honour, I am in terrible trouble on Monday. Would your Honour excuse me for a moment?"

(There was then some discussion of the likely duration of an action listed for hearing on the following Monday.)

"MR.HULME: Your Honour, I have one witness who is outside with some film now. That is my present intention and one doctor's report, Dr. Copland, who is not available today. I propose to tender his report. He will probably be available on Monday. He is returning from overseas. So, my case is probably something of the order of, at least in chief, half an hour long. I would be content for my learned friend to tender Dr. Tennant's reports in the circumstances without calling her. I would oppose an application for adjournment until Monday. MR. HULME: My situation gets worse as the week - next week progresses. It is not just Monday, your Honour. That is the difficulty. I appreciate any efforts which your Honour was prepared to make to try to meet me but - - -
HIS HONOUR: Well, Mr. Sheils, in the circumstances I have to refuse your adjournment, do I not?
MR. SHEILS: No, your Honour does not, with respect. Your Honour, I am not content to tender Dr. Tennant's medical report. Both parties have to address. We cannot finish the matter today and I remind your Honour that your Honour has in fact found other counsel in difficulties, myself amongst them, and I handed back the night before a High Court brief to appear in your Honour's court so that I would not be part-heard. It is something that has to be done in a running list. I have not dragged this case out and I do not suggest my friend has. I have done my best to meet his convenience and I have no doubt he has done his best to meet mine but after that attack which I could not have foreseen about Mr. Pasic who is down in Malua Bay, not here, or Batemans Bay, and not a person I can contact on the phone in the middle of the day in Canberra and say, please come to court, we are going to have to call you to decide - to help his Honour decide what is the real situation in this, it would be grossly unjust if I am not given the opportunity to call him.
HIS HONOUR: Anything else?
MR. SHEILS: Yes, your Honour. We cannot finish the matter today.
HIS HONOUR: You have said that.
MR. SHEILS: And I am in grave difficulty myself if the matter is put over after Monday to any other day during the week because I will be in another court. That is all I can say, your Honour.
HIS HONOUR: Mr. Sheils, I appreciate that it is not an easy position for counsel to be in and I appreciate, doing the best you can for this plaintiff you would like to call Mr. Pasic - - -
MR. SHEILS: And Dr. Tennant.
HIS HONOUR: Well, perhaps Dr. Tennant as well - I do not agree with you that it is grossly unjust nor do I agree with you that you could not, or those instructing you, reasonably have anticipated an attack upon the plaintiff's capacity to work. It is, it seems to me, staring at everybody from the medical reports that his account of his capacity to work as a result of these two accidents may not be entirely reliable. That being so, I do not agree that it could not reasonably be anticipated by those acting for this plaintiff, properly instructed - and I stress, properly instructed - that Mr. Pasic might be necessary. I refuse the application for an adjournment.
MR. SHEILS: Well, your Honour, I have informed my learned friend that I do not consent to Dr. Copland's report being tendered. I want to cross-examine him.
HIS HONOUR: Yes.
MR. SHEILS: And that would mean my learned friend has got to have an adjournment.
HIS HONOUR: He has not applied for one so far, Mr. Sheils.
MR. SHEILS: May it please your Honour. And there is also the matter of what time your Honour is going to sit to today.
HIS HONOUR: Well, I am still here.
MR. SHEILS: May it please your Honour.
HIS HONOUR: Yes, Mr. Hulme, we are in your case.
MR. HULME: Your Honour, has my learned friend closed his case?
HIS HONOUR: Well, I do not know. Is that your case, Mr. Sheils?
MR. SHEILS: Save that I have applied for the adjournment and I cannot have it, that is my case. There is no other evidence I can call. Your Honour refuses the adjournment to call Dr. Tennant, I think?
HIS HONOUR: Yes.
MR. SHEILS: Then I will have to tender her report and what I have said about it is noted on the transcript."

After a further exchange between the learned trial Judge and counsel for the appellant, Dr. Tennant's reports were admitted without objection. Counsel for the respondent then called his first witness. By this time it was clear that the case for the appellant had been closed.

The respondent's first witness was an insurance investigator who had observed and filmed the appellant. Counsel for the appellant objected to the film because it had not been shown to the appellant during his cross-examination. It was admitted and shown; the witness in evidence explained the film and described his observations. When his evidence-in-chief was finished at 4.29 p.m. his Honour indicated that he proposed to rise at 4.30 p.m. and he did so, adjourning to 10 o'clock on the morning of Monday, 28 June 1982.

On that morning a specialist physician was called by the respondent. He gave evidence and was cross-examined. The insurance investigator was then recalled and cross-examined. Counsel addressed until 12.23 p.m. when the matter was adjourned and decision reserved.

During the course of his address counsel for the respondent deleted certain paragraphs of the defence with the effect that the respondent admitted liability to the appellant in respect of the second accident whilst continuing to deny liability in respect of the first accident and maintaining a plea of contributory negligence in respect of both accidents. By amendment to its defence the respondent in effect admitted, with respect to the second accident, failing to provide and maintain a safe system of work, failing to carry on its operations so as to avoid exposing the appellant to unnecessary risk of injury, failing to distribute formwork in a safe manner and causing the appellant to work in cluttered, cramped and uneven areas.

By a cross-appeal the respondent seeks to have this Court hold, only if we are of opinion that the appeal should succeed, that the damages awarded to the appellant should be reduced by reason of the appellant's contributory negligence in failing to pay proper regard to his footing and failing to handle the formwork in a safe manner. It is convenient to say immediately that this attempt by the respondent, which was related to the conclusions to be drawn from the findings and the appellant's own evidence, in our view wholly failed. No narrow view of our function is involved in our refusal to hold that, in tugging at a piece of wood and failing to twist it in order to free it, the appellant was in part responsible for the fall which occurred when it suddenly became free.

We turn, therefore, to the relevant grounds of appeal which are in the following terms:-

"2. An essential element of the plaintiff's case being a functional illness and disability the learned Trial Judge erred in law in refusing an adjournment to the plaintiff at 3.45 p.m. on Friday afternoon to permit the plaintiff to call his psychiatric witness on the following Monday morning in circumstances where the witness was unavailable on the Friday because her mother had died that morning.
3. The Learned Trial Judge erred in law in failing to grant the plaintiff an adjournment at 3.45 p.m. on Friday afternoon to the following Monday to enable the plaintiff to call a witness who was a resident of a town in the South coast of New South Wales and whose evidence was material to matters raised with the plaintiff by Counsel for the defendant in cross examination during the course of the Friday.
4. The Learned Trial Judge erred in law in permitting the defendant to show films of the plaintiff and in taking such films into consideration without such films having been shown or put in any way to the plaintiff in cross examination or without wuch films having been put to any of the medical witnesses."

In order to understand the significance of the appellant's complaints, it is necessary to extract passages from the judgment below. After outlining the circumstances of the accident and summarizing the effect of the evidence of the other medical witnesses called by the appellant the learned trial Judge continued:-

"I find that he suffered some sort of injury to his back but he has grossly exaggerated the symptoms. He claims now that his back is not better than when he finished work permanently in early 1980. His evidence was that he cannot lift heavy things, cannot stand for long and that he can only work for a little while providing that work is not too heavy and provided he can rest for about an hour by sitting or lying down. He said that he could not even do a part-time job. According to him he cannot walk very far. He said that sometimes he cannot even walk 100 yards. But the evidence establishes that there are no neurological signs to support his complaints of pain and he has a full range of movement in his back. There are just no objective signs to support his complaints of pain.

The defendant produced evidence of the plaintiff in and about his home at Malua and at a building site at Surf Beach. The plaintiff admitted that he had assisted a friend in the construction of the friend's home in repayment for the assistance which the friend had given to the plaintiff to the value of some $10,000 in the construction of the plaintiff's home. The film shown in evidence showed a vastly different picture to that portrayed by the plaintiff in evidence. He could be seen walking at times quite briskly and at the building site he was obviously doing work which demonstrated a capacity to lift and carry building materials of significant weight and with his left arm in particular.
. . . I turn to consider the plaintiff's loss of earning capacity. It was submitted on behalf of the plaintiff that he has not totally lost his earning capacity but rather that he is capable of doing work in the building trade but is not capable of sustaining that work on a full-time basis. In my view the plaintiff is capable of much more work than he has been prepared to admit in evidence. He is probably not capable of full-time work yet. But he is only 36 years of age and he has the skills to get work in the building trade.
I have finally come to the conclusion that it is reasonable to allow the plaintiff a sum which will reflect a further period of adjustment which he will undoubtedly have to make at the end of which period he will probably be capable of full-time work. I fix this period at a little in excess of 12 months and provisionally assess damages for loss of earning capacity at $15,000. Special damages are agreed at $1948.
My provisional assessments in summary are:
General damages $15,000
Loss of earnings to date $7,000
Loss of earning capacity $15,000
Special damages agreed $1,948
Total $38,948
Having considered that amount as a global sum I think it is safe to proceed on my provisional assessment. There will be judgment for the plaintiff for the sum of $38,948."

We find no need to deal with ground 4 as a separate ground in detail. At times it seemed that the submission for the appellant was not that his Honour's finding (that the film showed a vastly different picture to that portrayed by the appellant in evidence) could not be sustained but that it differed from the view of the film which the appellant urged upon him. Although the film was not shown to us, counsel for the appellant seemed to concede that his view of what it showed might well have been different from the impression formed by the Judge, and that it was open to the Judge to form the view which he did. However that may be, it was not suggested that there was any particular matter in the film, except in point of detail, which was not dealt with at length in the examination and cross-examination of the appellant. The appellant's submission, advanced only in general terms, was that the appellant or his doctors might have been able to deal with some unspecified matters shown in the film had they been given the opportunity. It seems sufficient to say that what a defendant must put to a plaintiff or his witnesses in order to ensure that they have a fair opportunity to comment upon a positive case to be advanced by the defendant must be a matter of judgment and degree and cannot be decided in the abstract by reference to generalized propositions. No particular matter was pointed to by the appellant and we are of opinion that this ground fails.

Likewise, having regard to the way in which the trial was conducted for the appellant, we can find nothing whatever unfair to the appellant in any refusal to give him a further opportunity to call Mr. Pasic. The situation in which the appellant found himself on the Friday afternoon was, so far as the absence of Mr. Pasic was concerned, a situation plainly foreseeable and entirely of his own making.

It remains to deal with ground 2 of the Notice of Appeal. The matter which it raises must, we think, be seen in the context of the obvious importance to the appellant of the evidence of his psychiatrist. Whether and to what extent the appellant was permanently incapacitated for work was clearly an issue affecting greatly the quantum of the damages which he might hope to recover. In the assessment of that issue his physical disabilities were of relative insignificance and his claim to permanent unemployability, wholly or in part, was fundamentally related to the assertion that he had a functional illness and disability. It was at the forefront of the respondent's case that he was a malingerer. The appellant's credibility was in issue, and it was known that there was a film which the respondent proposed to put in evidence. The reference to a film in the argument on the application for an adjournment must have conveyed to all who heard it that the respondent proposed to call evidence to contradict the appellant's claims about his incapacity to work. The learned trial Judge has in fact found, without any detailed reference to the issue of functional overlay, that the appellant was guilty of gross exaggeration in his evidence.

The circumstances in which an appellate court will review the exercise of a discretion to grant or refuse an adjournment have often been considered, e.g. by the Full Court of this Court in Squire v. Rogers, (1979) 27 A.L.R. 330, and by the High Court in McInnis v. The Queen, (1979) 54 A.L.J.R. 122 and Bloch v. Bloch, (1981) 55 A.L.J.R. 701. It is adequate for present purposes to observe that for the appellant to succeed he must show that refusal of the adjournment produced, in the circumstances, such an injustice that there should be a re-trial. In assessing what justice requires, it is no doubt appropriate to take into account a variety of circumstances, including any disadvantage which will accrue, or has accrued, to the respondent including any forensic advantage which a re-trial will provide to the appellant.

It is not sufficient that we think that an adjournment should have been granted. The learned trial Judge seems to have been influenced by the state of the list and by a suggestion that a hearing on the following Monday might prove less than convenient to counsel for the respondent. There seems to have been considerable confusion. Part of what was said suggests that it was known that the matter would go on on Monday. Other parts suggest that it was inevitable that it would go on on the Monday unless the Court sat well beyond 4.30 p.m. For example, counsel for the respondent mentioned that its medical witness was not available on the Friday but would be available on the Monday. Further, he mentioned that the evidence in chief of his witnesses would take about half an hour. Obviously, cross-examination would be expected to take the hearing past 4.30 p.m. on the Friday. In other parts counsel for the respondent mentioned that a further hearing on the Monday was unsuitable to him and that his position would grow worse as the week progressed. Yet, when his Honour did adjourn at 4.30 p.m. on the Friday to 10 o'clock on the Monday morning, he did so without protest from counsel for the respondent who duly arrived to conduct his case. It was less than satisfactory, we think, to refuse a plaintiff an adjournment so late on a Friday afternoon when a witness whom he wished to call was absent for such an excellent reason as the death that day of her mother when it was plain that she otherwise would have attended.

We do not know what evidence Dr. Tennant would have given. It was apparently not opened either earlier or during the course of the application for adjournment. We were told during the hearing of the appeal by counsel for the appellant that he had had a conference with Dr. Tennant prior to the commencement of the hearing and that the evidence which she would have given would have involved a significant amplification and qualification of the last paragraph of her report.

However, it does not seem to us that we are required to enter into such questions. We do not think that it can be gainsaid that the appellant was entitled to call his psychiatrist, particularly having regard to the vital importance in the case of the issue of his credibility and whether or not he was malingering. It is impossible to assess the impact of Dr. Tennant's evidence had she been requested to comment or to express an opinion in the light of the evidence which the appellant had given or which the respondent sought to establish by the film or the evidence of its insurance investigator.

The respondent submitted that even if the adjournment should have been granted the appellant had an adequate opportunity to correct any situation which had occurred when the matter continued on into the Monday and that he elected not to do so as a matter of forensic tactics. It was said that he could have applied then to reopen his case or he could have sought to call the additional evidence in reply. However, we are not prepared to hold that it was unreasonable of counsel for the appellant to proceed on the basis that, having been required to close his case on the Friday afternoon when an adjournment was refused and he had no other witnesses available, the learned trial Judge had in the circumstances effectively ruled against any later attempt by the appellant to adduce the evidence in question.

The final matter advanced on behalf of the respondent was that if there was to be a re-trial on the question of damages there should be a re-trial on all issues. It was said that the respondent's decision to delete its denial that it was negligent in respect of the second accident was a decision made in the circumstances as they stood on the Monday morning and that it ought not to be held to it if we now permit those circumstances to be changed by ordering a new trial. We are unable to agree with that submission. One of the circumstances which existed when the respondent made the decision to delete the relevant paragraph of its defence was the prospect that the appellant would appeal because of the refusal of the adjournment.

However unusual such a course may be, we are of opinion that in the particular circumstances of this case the appeal should be allowed and a re-trial ordered limited to the issue of damages.