Spiteri v Visyboard Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7722 of 2000

RAYMOND MICHAEL SPITERI
	Appellant
v.
VISYBOARD PTY. LTD.	Respondent

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JUDGES:	ORMISTON, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	2 and 3 June 2004
DATE OF JUDGMENT:	25 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 132

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TORT – Negligence – Industrial accident – Amendment sought during trial to amend Statement of Claim – Earlier cross-examination of plaintiff on assumption that new claim not relied upon – Whether prejudice to defendant – Jury – Not sought by plaintiff but notice given by defendant – Trial jury disagreement and discharge – Whether judge correct to direct continuation of trial before judge alone – Order 47.02 of County Court (General Civil Proceedings) Rules – Judgment given against plaintiff – Findings based on credit of plaintiff challenged on appeal – Whether factual findings correct.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.A. Riordan with Miss L. Krejus	GPZ Legal Pty.
For the Respondent	Mr J.H.L. Forrest, Q.C. with Ms S. Hinchey	Lander & Rogers

ORMISTON, J.A.:

This appeal arises out of the dismissal by a County Court judge of an action for personal injuries said to have been suffered by the appellant in the course of his employment with the respondent. There were originally some 39 grounds of appeal spread over twelve pages which the appellant sought to increase by twelve grounds producing a document some 18 pages long, but, shortly before the hearing of the appeal, commonsense prevailed and a significant number of issues were removed from the dispute, albeit that there remained a large number of grounds though directed to three primary issues. The principal area of dispute arises out of a claim that the judge wrongly failed to exercise his discretion on an application on the third day of the trial before a jury to permit the appellant to amend his statement of claim to add essentially a claim that his injuries were caused by the heavy nature of his work and the respondent’s failure to provide a safe system of work, in addition to the existing claim based on a fall in the respondent’s factory on a specified occasion likewise said to be caused by the respondent’s negligence. The judge’s exercise of discretion was attacked as being unduly unfair to the appellant, preventing him from presenting the whole of his case as it appeared at the trial. The second main ground of dispute arose out of claims by the appellant that the judge wrongly proceeded to determine the trial for himself after the jury had failed to agree after a day’s deliberation and thus had to be discharged. It was said that the judge wrongly deprived the appellant of his right to a jury trial and that such a retrial should have been directed. Finally a number of grounds are taken in relation to the judge’s findings leading to his dismissal of the action. They may all be described as errors of fact, constituted either by the judge’s failure to accept the appellant’s version of the events or by erroneous inferences or conclusions said to have been drawn by his Honour for that purpose, as well as incorrect or inadequate consideration of confirmatory evidence given by other witnesses. Two substantial sets of grounds alleging an earlier wrongful refusal to discharge the jury (grounds 7 to 9B) and alleging errors in the judge’s charge to the jury (grounds 19 to 30) were abandoned before this Court.

Circumstances leading to proceeding

It is necessary to set out briefly the factual background, although it will be more convenient to deal with the specific factual matters raised by the appellant in the course of describing and dealing with the arguments put on his behalf. The appellant was aged 41 at the time of the principal incident relied on by him, namely a fall inside the respondent’s factory, where he had been employed there as a printer from some date in 1996. On 19 March 1997 he was working on an upper level in the factory attempting to change certain cylinders and analock rollers used in a printing machine. At this point, about two storeys above ground level within the factory, there was also an overhead crane used in certain circumstances to lift these pieces of equipment from one part of the factory to another. As the plaintiff tried to loosen the two items he rose up to check a sling but hit his head on the crane, although originally the appellant alleged that the crane had moved so as to hit him. The appellant said that after hitting his head he moved backwards along the narrow platform on which he was standing but fell, again backwards, to the next level below, called Unit 5, which was likewise a metal gangway. He landed on his buttocks, although that was disputed. The alleged distance of the fall was somewhere between four and eight feet[1] and the complaint of the appellant, at least when the proceeding began, was that the respondent had failed to provide a safe workplace primarily because were no rails on the upper level (Unit 6) to prevent his falling down in the circumstances he alleged. Although the appellant had hit his head, that had required only that stitches be inserted by the respondent’s doctor, Dr Myers, whom he saw on that same day.
[1]In the end it appeared not to be disputed that the distance was four feet.

Other employees of the respondent, called as witnesses by the appellant, were present at the time of the fall but I believe it is accurate to say that none in fact saw the appellant fall. Daniel De Prada heard a loud bang and looked up to see the appellant at Level 5 doubled over holding his head but did not mention that he was on his buttocks. Dean Griffiths heard a cry and a thud but saw nothing of the appellant’s movements until he had come downstairs. Fred Whitworth, who seemed to have some responsibility within the respondent for health and safety, said that he went over to see the plaintiff who was by then on his “backside” at ground level but he did not see the accident and he made no mention of a fall in the diary note he made at the time.

As already stated the appellant saw Dr Myers on the morning of the alleged accident who sutured the cut. She said also that after climbing onto the bed the appellant had complained of left hip pain, coming back towards the groin, but she did not assess it further and said there was no mention of a fall so far as her notes were concerned. The appellant was off work for a day-and-a-half but continued to work thereafter for about three to four weeks. He said that he then had from time to time “a grabbing pain in the left groin” spreading to the hips and buttocks.

The appellant next saw a doctor when he visited his general practitioner some two-and-a-half weeks after the incident with the crane, on 7 April 1997. The appellant complained of the pain just described, suggesting that it resulted from “heavy lifting”. Dr Carter diagnosed a hernia in his left side and referred him to a specialist, Dr Goldwasser. Dr Carter’s evidence confirmed this account stating that he deduced that the hernia was due to heavy lifting and the nature of the appellant’s work but said the appellant had not mentioned a fall at the respondent’s premises. The left hernia was repaired by Mr Goldwasser by an operation on 28 April 1997, as a result of which the appellant stayed off work for some six weeks and then returned to light duties.

During this period, on 12 May 1997, the appellant submitted a claim for accident compensation arising out of his left hernia but again made no mention of a fall at work. After the operation the appellant continued to have pain in the same area as the hernia and returned to Dr Carter to investigate the causes. A CT scan was ordered with no significant result other than that both Dr Carter and Mr Goldwasser advised the plaintiff late in 1997 to lose weight and to exercise.

The appellant returned to normal duties with the respondent in September 1997 and remained until March 1998, although he said that he continued to have mild to severe pain in the groin, back and hips during this period. He said from time to time he had a throbbing pain which went from his back down his legs to his feet. Dr Carter said the first time that back pain was noted by him was in May 1998.

During this period, somewhere about the beginning of the football season for 1998, the appellant began as a trainer with the Carlton Football Club and for that season he received some $1,394 from the Club.

The appellant then saw Dr Carter again three times in April and May 1998 and was diagnosed on this occasion with a right-sided hernia which was also repaired by Mr Goldwasser on 22 June 1998. It was about this time that he first complained of low back pain which, so it seems, he had never previously suffered. In April the appellant submitted a further claim for accident compensation arising out of the right hernia but again the claim made no mention of a fall at work. The appellant said in relation to both claims that he had never related the hernias to having had a fall.

It is not entirely clear when the appellant ceased work in the first half of 1998 but he was off work for some four weeks after the second hernia operation. After that he returned to light duties but never thereafter returned to normal duties. The light duties consisted of cutting out and preparing colour samples using a Stanley knife and placing them in a folder. He said it required him to stand and bend regularly. During that period the appellant said that he had constant back and groin pain and difficulty in coping with those light duties. In November 1998 there was a meeting at which the appellant was told there was no longer a job for him with the respondent because of his injuries. In fact he attended work each day and was given general duties, including even work on one of the printing machines which he formerly carried out.

Again in March 1999 the appellant was told that there was no job for him within the respondent’s corporate group but was asked if he would like to do other work elsewhere. The appellant said that as he was a trainer with the Carlton Football Club he would like to do a masseur’s course. The respondent said that the appellant could go on WorkCover and it paid the appellant a cheque for $3,000 to attend the course. Unfortunately, the appellant missed the beginning of the course and returned the cheque. Later he was told that the respondent had changed its policy in relation to the course.

From May to July 1999 there were further discussions about the appellant’s rehabilitation which led to an offer from the respondent dated 22 July, which the appellant accepted. There was some dispute as to whether the respondent really wanted him to accept the offer but evidence was given that various officers tried to reassure the appellant that it was a genuine offer. Again he returned to the light duties involving the use of a Stanley knife and the cutting of standards. The appellant said that he continued to suffer pain from bending while doing that work. It seems that the appellant ultimately ceased work with the respondent in mid-August 1999. In fact his services were terminated on 17 March 2000.

The appellant was unable to recommence his duties as a trainer with Carlton until the beginning of 2000. He did so then and ultimately became chief trainer at an annual salary of $16,000. His duties there consisted of tasks such as strapping ankles and assisting to carry people off the ground on stretchers, but he said it was easy work which involved only a little running and jogging. The work involved attendance at the football club on three training days and on match days. Although it is not disputed that the respondent knew of his dealings with the Carlton Football Club, it was not accepted that they knew how much he was doing or that he was paid $16,000. It seems the appellant conceded that he did not inform the workcover authority of that payment because he was not asked about it.

There was medical evidence as to the appellant’s complaints that he could not move easily and that he was suffering pain from his back down his legs so as to be unable to stand erect properly. There was much dispute as to how the appellant was able to act as the head trainer at Carlton. A video tape recording was made of his activities at Carlton which included the appellant’s running on to the MCG with a stretcher and helping to take off one footballer. There was much cross-examination about that and many questions were put to the various expert medical witnesses. Other evidence as to the appellant’s medical condition will be referred to later in this judgment.

Proceeding and trial

The appellant commenced the proceeding against the respondent in the year 2000 alleging, as already remarked, that he suffered from hernias and various back injuries as a result of the fall from the position on the printing press when he was struck by a crane. The appellant did not seek a jury in his writ but notice requiring a jury was given on behalf of the respondent. No amendments were made to the pleadings before trial.

At the trial the appellant’s case proceeded for approximately two days before application was made on his behalf on the third day to amend the statement of claim after his cross-examination had concluded. There seems little doubt that up to that stage the case had been run on the basis of a single incident being the fall which had resulted from the appellant’s hitting his head against the crane. The appellant had asserted that, by reason, in particular, of the failure of the respondent to have a guard rail on the printing press at the level at which he was working at the time, he fell to the next level and suffered injuries which included both the hernias and, in particular, the back and leg pains from which he continued to suffer as described above. The respondent’s case, as put to the jury at that time, consisted in a denial that there was any fall, or at least any injury resulting from a fall, and an assertion that any back and leg pains were not connected with the original incident but resulted from the lifting which he had been required to do in the course of his ordinary duties with the respondent.

The appellant by his counsel therefore then sought to add paragraphs to the statement of claim so as to make an alternative claim based on the heavy nature of his work with the respondent including the need to bend and to push and lift heavy objects. The appellant also sought to add a claim based on a specific incident on 7 April 1997 resulting from the heavy lifting and pushing of reels and cylinder trolleys. The particulars of negligence and breach of contract required relatively little amendment but it was proposed to add a further particular asserting that the respondent had required the appellant to push heavy reels and trolleys. In the circumstances the application was oral so that there was neither a summons nor a supporting affidavit, but counsel called her instructing solicitor to explain, so far as that was possible, how a claim based on heavy pushing and lifting had been omitted from the statement of claim to that stage.

So far as I can gather, the application was made, at least in the first place, in order to amend the pleading in running, so that the trial might continue, on the assumption that the respondent could not have been taken by surprise, nor prejudiced, by any such amendment. There was no application as such to discharge the jury or to adjourn the trial, nor any offer made to pay the costs thrown away by any such adjournment or otherwise. The learned judge suggested in the course of submissions on behalf of the appellant, at a relatively early stage of the argument, the consequential possibility that stringent conditions might be imposed, including abortion of the trial as well as orders for costs. When he suggested to counsel that it might be pointless proceeding with the present trial, she hesitated in the sense that she said that, if the respondent objected (which seemed almost certain) and if the judge were otherwise against her client on the application, then she believed that she would have to take instructions as to whether or not the appellant would continue with his application. She thought it might not be what the appellant desired or might not be in his best interests. Unfortunately that issue was never faced again, except that towards the very end of counsel’s submission the judge again referred to the possibility of the trial being aborted. On this occasion he also raised the possibility of prejudice by reason of the nature of questions asked on behalf of the respondent, but counsel merely stated that there could be no prejudice by reason of that questioning. Junior counsel for the respondent relied in argument almost entirely upon the prejudice which would arise by reason of the questions put on behalf of his client in the course of cross-examination, and the answers thereto, stating that those questions and answers would lead to “very obvious prejudice that cannot be overcome by any form of adjournment or otherwise”. Counsel for the appellant did not seek to respond to that succinct argument.

The learned judge rejected the application and that rejection is now the subject of the first grounds of this appeal. His Honour stated, as had effectively been conceded, that the case sought to be put by way of amendment was quite different from the claim based on the single incident of the appellant’s head striking the crane and his falling to a lower level of the printing press. His Honour then sought to analyse the prejudice alleged on behalf of the respondent and the extent to which that prejudice could be overcome. He sought to apply Howarth v. Adey[2], the only case cited in argument, saying that often applications are allowed because any injustice can be compensated for by the imposition of terms relating to costs and the like. However, he said that, although costs would have been wasted, there could have been an order for costs if the prejudice alleged could have been overcome at a further trial. In his opinion no order he could make could compensate for that because of the nature of the cross-examination. The judge in substance concluded, in terms which will have to be examined, that the questioning explicitly or implicitly involved an admission that the hernias (at least) were caused by heavy work at the respondent’s premises. His Honour believed that if the amendment were allowed then it would be possible for the appellant to say that, not only had he suffered injury due to the heavy work, but also that that was the “very thing that was put in the first trial against him” and that there was no way of remedying that situation.
[2][1996] 2 V.R. 535.

Upon the application being rejected the trial resumed, although some six days later another application was made, this time to discharge the jury on the basis that a particular witness would not be called whose opinion had been put in cross-examination of the appellant’s witnesses. This application was also rejected by the trial judge and was originally the subject also of the present appeal, but the relevant grounds were abandoned before argument commenced before this Court.

After that application had been rejected by the learned judge, he nevertheless directed the jury as to the failure to call the particular witness. Thereafter counsel for the appellant addressed the jury and after some further argument the judge delivered his charge and the jury retired to consider its verdict. Numerous exceptions were taken by counsel for the appellant as to various aspects of the charge and in relation to certain redirections. Again those formed the basis for a substantial number of grounds of appeal that likewise have been abandoned.

The jury could not agree and, after a direction by the judge as to the bringing in of a majority verdict, they reiterated their inability to reach a verdict. In consequence, the jury was discharged without verdict some two days after they had been sent out, and after having deliberated for somewhat over eleven hours.

Counsel for the appellant then made application for a new trial by jury. Counsel for the respondent, however, submitted that any further trial should be without a jury and that his Honour should proceed, pursuant to rule 47.02(3) of the County Court Rules, to direct trial without jury and to hear the trial himself on the evidence earlier adduced. His Honour accepted that the onus rested on the respondent to satisfy him that an order should be made directing trial without jury. Likewise counsel for the appellant accepted that decisions such as Pezzimenti v. Seamer[3] gave the judge a discretion whether or not to direct a further trial by jury or whether to direct a continuance of the trial by the judge himself. The judge, however, was persuaded by the respondent’s arguments and in particular relied on what he stated to be a number of relevant circumstances, namely that (1) a new trial would probably be considerably longer than the first trial because of the cross-examination and the calling of other witnesses; (2) the length of the trial would cause additional expense which could not be covered by the Appeal Costs Fund; (3) a new jury trial would cause inconvenience to witnesses and parties being required to attend; and (4) the trial could be brought to an end without injustice to the parties. The application for a new trial by jury was therefore rejected and his Honour proceeded to hear argument as to the merits of the case. His decision to proceed to determine the matter himself is likewise the subject of a number of grounds of appeal which have been argued before us.
[3][1995] 2 V.R. 32.

Shortly afterwards the learned judge delivered a judgment dismissing the appellant’s claim with costs. A number of grounds of appeal were directed towards his Honour’s findings on the merits and, although at one stage it appeared that those grounds were not being pursued, it is preferable to deal with them on the assumption that the appellant maintains his arguments in relation to them.

Judge’s refusal to allow appellant to amend statement of claim

In substance the appellant claims that the learned judge imposed too strict a test when considering his application to amend the pleadings so as to allege a new case based on a failure to provide a safe system of work, in that the respondent unduly required the appellant to push heavy reels and cylinder trolleys and that such heavy duties resulted in his suffering injuries on 7 April 1997, in particular the hernias and the back injury of which he continued to complain.

The respondent emphasised to a significant degree that the late decision to amend came only after cross-examination of the appellant was completed and his case based on a fall on 19 March was appearing difficult to sustain. Moreover, it was alleged that the appellant and his advisers had been well aware of a potential claim based on the heavy nature of his duties in that the accident compensation claims had identified his hernia and back conditions and the appellant himself had not to that time connected those conditions specifically with the fall. Undoubtedly there had been a deliberate decision not to include the “heavy duties” claim at an earlier stage and in particular not to seek to amend the statement of claim before the trial got under way. Although the circumstances might differentiate the present case from others where it is only during the course of evidence that a different factual scenario emerges which requires an application to amend so as to allege a differently based cause of action, I would doubt that the deliberate choice not to include a claim ought ordinarily to have any great bearing on the question whether an amendment should be allowed. There may be fringe cases of excessive delay or comparative prejudice, where the choice made, may have a bearing upon the conditions to be imposed when amendment is permitted, but it would not seem the kind of application where the choice and the decisions made by the plaintiff’s legal advisers ought to be visited on the client. That would frequently require an unproductive enquiry of the kind here conducted which led to little more than a dispute as to whether solicitor or barrister, including the barrister who drew the statement of claim, was to blame. Moreover it is more than arguable, in circumstances such as the present, that no claim against the advisers could be made in respect of such a decision made when in the course of a trial, with the consequences that ensue from that conclusion.

Rather the enquiry should be, as Howarth v. Adey seems firmly to establish, as to what the justice of the case requires having regard to all the circumstances including the conduct of both plaintiff and defendant and their legal representatives. It is ordinarily the consequences to those parties of what has occurred up to the time when the amendment is sought which ought to be examined.

The present case is unfortunate inasmuch as the application was made in running and without its precise nature being worked out on paper. As a result it seems that the application was at least in the first place directed primarily to amending the pleadings in the course of a jury trial in which the appellant as principal witness for himself had given most of his evidence and whose cross-examination by then was complete. Of course the cross-examination could have been reopened, but the issue arose more in the context of how the respondent as defendant to the claim had sought tactically to resist the appellant’s claim. Not surprisingly since, as was conceded, the appellant had “placed all his eggs in the one basket”, by basing his case entirely on the fall from the upper level of the printing press, it was easy for the respondent to point to other circumstances which made it the more likely that the particular condition of the appellant during later periods was caused by other events and in particular by the heavy nature of the work which he was ordinarily asked to perform. As it turned out this was made easier by the fact that the appellant had not complained of any back pain for about a year and such pain as he had complained of, through his hip, groin and thigh, seemed capable of explanation by reference to the two hernias which he suffered and of which he had first complained on 7 April 1997, when the appellant himself seemed to attribute that condition to heavy lifting at work.

Perhaps it was thought at the time that the facts supporting the proposed amendment had so clearly come out in evidence that there would be no difficulty in obtaining leave to amend to allege those facts, but, as the argument was presented, there seemed to be no allowance for the possibility that the jury would have to be discharged, the trial adjourned and a new trial directed, with consequential orders for costs thrown away to be paid by the appellant, possibly on a solicitor-client basis. No such course was suggested, nor any undertaking proffered in the customary way so as to concentrate attention on what might occur at a new trial. A perusal of the transcript of the application shows that it was not until some time into the application that the judge himself indicated that the present trial might have to be aborted and stringent orders for costs might be the penalty for obtaining the amendments. To that stage one gains the impression that the appellant’s legal representatives thought that the evidence was sufficient to justify expansion from a single incident claim to one based on heavy pushing and lifting at work over some period of time.

His Honour’s observations produced a reaction from counsel who said that the appellant might have to consider his position. Almost immediately it seemed clear to counsel that at the least she would have to take instructions as to whether to continue with the application because she did not believe that her client wished the trial to go off or even that that was in his best interests. There was an adjournment of nearly three-quarters of an hour but the issue just discussed was thereafter diverted by the judge’s enquiring whether the appellant wished to call evidence. In fact evidence was called from the instructing solicitor as to the circumstances leading to the decision made not to amend before trial. The relatively brief cross-examination was directed to show only that it was clear that the appellant’s legal representatives were aware of potential claims based on heavy duties at a time well before the trial commenced. A draft amended statement of claim seems to have been put forward containing the relatively simple amendments required. Counsel asserted in general terms that the respondent was “in no way prejudiced or taken by surprise”. Seemingly this was because on the one hand the appellant had made accident compensation claims and in part because the circumstances were well known in that both single incident and general claims were based on an alleged failure to provide a safe system of work. It was some time before his Honour again raised the question of prejudice arising from the manner in which the respondent had conducted its case, especially by counsel’s putting in cross-examination the alternative cause of the appellant’s condition to the appellant in order to show that his version, dependent on a fall, ought not to be accepted. The response by counsel was simply that the questions put by the respondent’s senior counsel were directed to what the appellant himself had alleged and that, in her submission, it was not based on what the respondent “thought and believed it was”. They were “two totally different things”.

Counsel for the respondent in his brief submissions at the time made clear the fundamental objection to the adjournment was the prejudice which the respondent would suffer by reason of the way in which it had conducted its defence so far, albeit that it had not yet gone into evidence itself. Moreover the application still seems to have continued as one relating to an amendment for the purposes of the current trial, but nevertheless his submissions were made on the alternative bases that it might affect the current trial or that it might result in some trial starting again in the future, at which there would equally be prejudice in that, as he expressed it, the conduct of its defence “is going to come back to haunt our client [in] any litigation involving this man’s employment with Visyboard”. Tactical decisions had been made having regard to the existing pleadings. Counsel for the appellant did not seek to reply.

In the course of argument before this Court a distinction was sought to be raised between admissions made explicitly in the course of a trial, even in the course of cross-examination, and questions put to test a party’s case which depended essentially upon putting to a plaintiff what he or she had previously said or what was presently alleged, being seemingly inconsistent with the case run at the trial. The latter, it was contended on behalf of the appellant, could not lead to any evidence being called, in particular at a later trial (it being unnecessary or irrelevant at the current trial) to show the nature of the defendant’s case by way of defence inasmuch as it could not constitute evidence of admissions against interest. A distinction was then drawn between that kind of defence case and a case from which it might be inferred that the defendant’s positive defence was a set of facts upon which the plaintiff could seek to rely. Indeed, the stronger the contrast drawn by a defendant, the more likely it is to provoke an application to amend by a plaintiff. That may be thought to be unfair, although on closer analysis it may simply be that a better informed defendant is taking tactical advantage of the weakness of the plaintiff’s case. If the defendant succeeds in discrediting the plaintiff’s case in that way, so be it, but it does not necessarily follow that it is always right to refuse a plaintiff under such disadvantage the opportunity to remedy what are in fact only pleadings, if the amendment sought truly reflects a factual case which the plaintiff could otherwise make out. Prejudice may thus be thought to require some more permanent disadvantage to a defendant in such circumstances and that would ordinarily require the defendant to show that the course it adopted could be in fact used to discredit its defence to the newly reformulated claim. That would obviously arise if the defendant had chosen to adduce evidence positively asserting the alternative unpleaded set of facts or if it otherwise had chosen positively to assert in cross-examination, in order to discredit the plaintiff’s existing claim, an inconsistent set of facts which might otherwise have founded a claim and which subsequently become the subject of a successful application to amend the statement of claim. On the other hand, prejudice could rarely arise if all that the cross-examining party had chosen to do was to try to discredit the plaintiff by asking questions as to inconsistent allegations he or she had made in the past.

The difference between the two approaches is not unimportant and the Court gave counsel an opportunity to put in supplementary submissions on this matter so as to discuss the authorities of which there are a small number in this country, largely set out in paragraph [17525] of Cross on Evidence (Australian loose leaf edition). In broad terms those cases also suggest that there may be a distinction between putting direct admissions or inconsistencies (to the plaintiff), in which case a question which does not get a responsive answer cannot be used later by way of evidence, and a line of questioning or other conduct from which an inference may be drawn adverse to the defendant as to the nature of its case, because the defendant has made direct assertions, presumably on instructions, which could otherwise form the basis for an unpleaded claim by the plaintiff.

Nevertheless, before dealing with what might be seen to be a question of principle and its application to the present case, it may be useful to refer in some greater detail to the manner in which the respondent conducted its defence in cross-examining the appellant. In essence questions over a number of pages of transcript were relied upon to support the contention of prejudice, the point being raised in a number of ways. The first question (and answer), barely five minutes into the cross-examination, was expressed in these terms:

“Mr Spiteri, the defendant in this case, makes it clear, contends that whatever the condition of your back might have been before this accident in March of 1997, you certainly did not injure your back at that time; that is what is going to be put. Also it will be put that the injuries that you have suffered in terms of your hernias were in no way related to any fall but were related to your heavy work at Visyboard and elsewhere; you agree with that, do you not?---I agree with Visyboard but not elsewhere.
You agree that your hernias are caused by the nature of your heavy work at Visyboard?---Yes.”

There was an objection which was overruled, but it is now said that it was overruled because the last question meant only that the plaintiff had claimed that his hernia problems were due to heavy work and that did not connote any admission on the part of the respondent.

The cross-examination continued for some time along similar lines, in particular relying on a claim for accident compensation against the respondent made some five or six weeks after the fall but without reference to it. The substance of the questioning was that, although counsel was criticising the appellant, and seeking to attack him upon the basis that he had misstated his various claims, the attack was on the claim at that time pleaded and counsel was seeking in effect an admission, which the respondent did not then wish to dispute, that the real basis of any claim from May 1997 onwards was that his later compensation claims were accurate. The respondent wished to accept them as true in order to destroy the case opened against it. So a few minutes later questions were put to this effect:

“Did you make a claim that you had suffered your hernia as a result of heavy lifting and also pushing reels and pushing cylinder trolleys in May of 1997?---That is right. That is what I think was [put] down, yes, that is what I think I put down.”

Then a few lines on:
“With respect to the hernias, I suggest to you that you, at all times, maintained that your hernias were caused by the heavy work which involved the pushing?---The job, yes.”

These questions seem directed, however, to what the appellant himself had earlier stated.

In the course of very extensive cross-examination the issue reverted from time to time to the cause of the appellant’s condition, especially his back pains. Usually the questions were put in a form in which the appellant’s previous allegations, and not infrequently his failure to make an allegation, were used to suggest that his present attribution of the pain to the fall from the printing press was not correct. However, direct allegations were made from time to time, for example:

“And the fact is, in the course of your work you were required to engage in fairly heavy lifting from time to time, were you not?---That is right, yes.
And you were required to push reels?---Yes.
And that can be quite heavy?---Yes.
Pushing work?---Yes.
…
You have to push?---Yes.
So it can be very strained and you can be straining a lot doing that?---For sure, yes.
And then pushing cylinder trolleys…they are very heavy when filled up?---The trolleys are, yes yes.”

There could be little doubt, so far as the trial then being conducted before the jury was concerned, that this line of questioning implied, at the very least, that the respondent asserted that the appellant’s hernias and back condition were attributable to the heavy pushing, lifting and the like which he had been required to perform when working for the respondent. Tactically, such suggestions appeared likely to be effective because the appellant to that time had “placed all his eggs in the one basket” by asserting that both those conditions resulted from a fall from the upper level of the printing machine on the 19 March 1997. It was in the interests of the respondent and legitimate for its counsel to point out that, regardless of whether that was causative of the appellant’s conditions at the time of trial, it was a far more likely basis than a fall which, although only a few weeks before a hernia was detected came almost a year before any back condition was the subject of any significant complaint. Counsel for the respondent, conscious of the way in which the appellant’s case had been pleaded to that stage and how it had been opened to the jury, could, for the purposes of the cross-examination, safely assert not only that the appellant’s injuries did not result from the alleged fall but also that the respondent conducted its business by unduly requiring the appellant to push and lift heavy weights and reels and that its conduct thereby was the cause of those very injuries. In a sense it was a risky ploy, since it attributed blame to the respondent in any event, but the respondent’s hypothesis was clearly inconsistent with the single incident claim being made by the appellant at the trial.

In these circumstances there could not be the slightest doubt that the conduct of the defence to that stage made it highly prejudicial to allow any amendment of the pleadings in running so as to permit the appellant for the purpose of the trial then under way to claim in the alternative that the respondent’s negligent system of work in requiring him to push and lift heavy weights and the like was a cause of his injuries. Whether or not the assertions in cross-examination by counsel amounted to admissions against interest (which shall be examined below), the inference to be drawn from the whole of the cross-examination and the manner in which the respondent was conducting its case was such as to make it clear that the respondent was asserting that its various activities were responsible for the appellant’s condition, though they were not those which the appellant himself had claimed as part of his case to that stage. It would have been quite unreasonable to allow the amendments sought in circumstances where the trial was to continue before the same jury.

Whether the appellant at the time also sought the adjournment of the trial and the consequent discharge of the jury leading to a new trial on amended pleadings is by no means so clear, but I shall continue to discuss the appellant’s submissions upon the assumption that, at least by the end of the appellant’s argument below, some such alternative procedural orders were being sought. Admittedly counsel suggested that her client might well be unhappy about the trial being aborted and that she might have to seek instructions if the conditions imposed on an order for leave to amend involved an adjournment and the payment of costs. Whether that remained the appellant’s position is again not clear, for counsel did not return to the question, but the application proceeded so I shall likewise assume for present purposes that an application to adjourn and the like was implicit in the submissions. One may, however, observe that it is highly undesirable in such circumstances not to indicate what precise course is being sought, or at least to indicate that the appellant is willing to subject himself or herself to conditions appropriately worked out. It is not appropriate to allow a trial to go off, whether by discharge of jury or otherwise, in circumstances where there is not a clear undertaking to make any appropriate payment of costs or fulfil any other relevant conditions, thereby leaving the defendant unsure as to the outcome of the litigation.[4]
[4]I am not suggesting that payment must be instantaneous or that circumstances may not arise where an undertaking, especially to pay costs, will not be fulfilled, but the defendant should be able to return to court to seek an order in those circumstances founded on the want of proper prosecution of the case.

Upon the assumption that the appellant was willing to submit to appropriate conditions to enable the trial to be adjourned and recommenced afresh on the amended pleadings, somewhat different considerations would apply. Primarily the jury in a second trial will not have heard the cross-examination here conducted on behalf of the respondent and so will not be struck directly by the inconsistency of the case seemingly put on behalf of the respondent during the cross-examination and any case subsequently to be made denying not only the original claim, but also, and more importantly, the added alternative claim of the appellant. Prejudice at a fresh trial before a jury could only arise if the questions and answers in cross-examination already referred to could be tendered before the jury and relied upon as explicit or implicit admissions against interest by the respondent. One might add that if, contrary to the appellant’s desires, the trial were to be conducted before a judge alone, it would have been very difficult to prevent the judge from looking at the transcript; on the other hand, the admissibility of that material at a trial before judge alone would still be resolved upon the same principles and a judge could be asked to rule on that material and then to disregard it if it were inadmissible, without there being any miscarriage of justice, for frequently judges have to examine inadmissible material before ruling accordingly.

The appellant contended that the questions and answers referred to above did not contain any admissions, primarily because it contended that questions in cross-examination cannot, on conventional principles, be treated as evidence at a trial. That, however, is an oversimplification, as the respondent contended on this appeal. The conventional direction that questions are not evidence but only the answers given thereto may in broad terms be correct. Nevertheless there is little doubt that in certain circumstances the way in which a party conducts its case, in particular by putting questions in cross-examination, may lead to what may be described as implicit admissions on behalf of that party which may be taken into account at a trial. As relatively little reference was made to authority on this issue, the parties were given leave to file supplementary submissions as to the law and its application to the cross-examination in this case. As previously noted, counsel had their attention drawn to paragraph [17525] in Cross and the authorities cited therein, so that, in the submissions subsequently filed, reference was made to the following cases: R. v. Robinson[5]; Lander v. The Queen[6]; R. v. Birks[7]; R. v. Quinn[8]; R. v. Sargent[9]; R. v. Clark[10] and Goldsmith v. Sandilands[11].
[5][1977] Qd.R. 387.
[6](1989) 52 S.A.S.R. 424.
[7](1990) 19 N.S.W.L.R. 677 (primarily on a failure to cross-examine).
[8]Court of Appeal, 10 October 1997, unreported BC9705170.
[9](2001) 80 S.A.S.R. 184.
[10][2001] N.S.W.C.C.A. 494 (again a case involving a failure to put a question in cross-examination).
[11][2002] HCA 31 at para.[107] per Callinan, J.

Of those authorities only Robinson and Lander provide detailed assistance, although nothing in the other cases demonstrate any disagreement with what is there stated. In Robinson Dunn, J. (with whom Wanstall, A.C.J. and Douglas, J. agreed) said[12]:
[12]At 394.

“The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error.”

In Lander a more specific issue arose namely whether unanswered or denied questions in cross-examination might amount to evidence which could corroborate the evidence of an accomplice. The South Australian Full Court there concluded that it could not, because only positive evidence could amount to corroboration.[13] But Robinson was quoted with approval and it was further stated that use might legitimately be made of matters which arise in the course of cross-examination and generally in the conduct of an accused’s case for the purpose of evaluating evidence, but not so that inferences drawn from that conduct could amount to evidence of the facts in issue. In the present case the appellant, in accepting what was stated in these cases, has asserted that questions put in cross-examination “cannot constitute admissible evidence”. On the other hand, counsel concede:
“This rule does not prevent a judge [or] jury drawing an inference from the conduct of a part[y’s] case. Such conduct may include assertions made by a cross-examiner. This is so as questions reflect counsel’s instructions.
If cross-examining counsel ‘”puts” occurrence[s] to witnesses, he “put[s]” them in accordance with his instructions ... The instructions may be inferred from the questions … Whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel.’”

For this latter proposition the appellant cited and accepted what was said in the judgment of Dunn, J. in Robinson at 394. Likewise, counsel for the appellant concede that there have been other instances where questions put in cross-examination have been held to be relevant and admissible so as to demonstrate inconsistency, at least between questions put at committal and at trial.[14]

[13]See esp. at 442.

[14]See Quinn per Brooking, J.A. (with whom Batt, J.A. concurred), at [33]: see also at [29]-[32].

Counsel for the appellant nevertheless said that at a subsequent trial neither of these principles was applicable. In the first place they suggested that the conduct of a case as observed by judge or jury is relevant only during the trial at which that conduct becomes evident, so that evidence of these matters cannot be led at a subsequent trial. It was asserted that they do not then involve or constitute part of the conduct of the case by counsel, presumably at that trial. Secondly, they distinguished what was said in Quinn as being only applicable where inconsistency appears between the case made at committal and the case made at a trial, asserting for some unexplained reason that the cross-examination at committals should be treated differently. As to the latter point, I see no reason to treat questions put in cross-examination at a committal less stringently; indeed, there may be good reason to treat the questions put at a cross-examination more leniently, inasmuch as it is a traditional means of obtaining information about the Crown case which is otherwise unobtainable and which may not reflect any considered decision as to the manner in which the case at trial will be conducted, making fair allowance, however, for the potential use of explicit questions which could only derive from a client’s instructions.

What is more important to resolve is whether the appellant might at a subsequent trial be entitled to use questions put in cross-examination which are in substance unanswered as a means of allowing jury (or judge) to draw an inference as to the nature of that party’s case by reason of the conduct of the case by counsel at the earlier trial. At first sight it would seem curious that the material could not be similarly relied upon, although at the original trial there would of course have been no need to adduce evidence as to that conduct of the case. One may concede difficulties in adducing evidence in an appropriate form at a second trial inasmuch as the inferences to be drawn may depend upon a variety of material which could not fairly be adduced separately at a second trial. On the other hand, where the inference as to counsel’s instructions is derived from specific questions, there would seem no reason in principle why that material ought not to be admissible at the second trial, subject only to the judge making clear by appropriate directions and at appropriate times how that “evidence” may be used by the jury. Moreover, there would seem to be no good reason why the particular questions could not be used, at least in cross-examination, by counsel for the appellant if relevant witnesses were called by the respondent in a second trial. Again, inconsistency might be demonstrated in a number of ways, depending upon the questions relied upon. In essence, therefore, conduct of a case by counsel on behalf of a party ought not, at least in principle, be confined to conduct at the original trial, for any relevant inference ought also to be available in any case where it may likewise be inferred that what was done by counsel was done upon instructions, which is the only basis upon which the material may be used by judge or jury in any event.

In the present case I consider that the concession made in the supplementary submissions by counsel for the appellant is sufficient to justify a conclusion of potential prejudice, inasmuch as a number of specific questions could be adduced as part of the appellant’s case to show how the respondent conducted its case at the first trial. One need only refer to the last passage described in detail where the question put on behalf of the respondent was to the effect that “in the course of your work you were required to engage in fairly heavy lifting …”, and thereafter it was put that pushing work “can be very strained and you can be straining a lot doing that” (i.e. pushing reels of paper, to which there was later added a reference to the pushing of “very heavy” cylinder trolleys). That was the gist of the case put, presumably on instructions, by the respondent as a matter of tactics at this trial. There can be no doubt that the inference was that the respondent, for tactical reasons, conceded that pushing reels and trolleys was very heavy work. Not merely was the question put but the answer was given, albeit by the appellant, so that the respondent’s tactical case was made out to the extent that the injury suffered by the appellant could properly be attributed to the heavy work done in the course of his employment, as indeed the respondent itself asserted. I find it difficult to believe that that material could not have been adduced against the respondent at a second trial. Even if I be incorrect as to that, there remained a very significant risk that the questions could properly be used in the course of cross-examination of the respondent’s witnesses. At a second trial, in order to avoid liability, having regard to the nature of the evidence called in the first trial, it would be incumbent on the respondent to call at least some evidence as to the nature of the work performed by the appellant, if it was to avoid the inference that what the appellant was required to do involved heavy pushing and lifting. The questions referred to may have been put to some of the respondent’s witnesses to show inconsistency.

Consequently, I conclude that the respondent would suffer prejudice by reason of having to conduct the trial a second time after it had conducted its defence at the first trial in the way that it did. In the circumstances, therefore, no adjournment of the trial in order to permit the amended statement of claim to be relied upon by the appellant at a new trial ought to have been allowed. The application to amend was therefore properly dismissed whether or not it was subject to implied conditions or not, even though the appellant otherwise had satisfied the tests laid down in Howarth v. Adey. I add only that at one stage it was suggested on the appeal that one of the conditions which might have been imposed was that the appellant should not rely upon the material which I have just discussed. That was not an undertaking proffered at the trial on behalf of the appellant, nor did it form part of the argument in the course of the application before the trial judge. It would be unreasonable now to suggest that that condition ought then to have been imposed when it was not then mentioned by counsel. The grounds relating to the application to amend should therefore be rejected.

Whether judge wrong to direct continuation of trial before judge alone

When the jury was unable to reach its verdict, after having been informed that they could bring in a majority verdict, it was necessary for the trial judge to discharge the jury. The choices that lay open to the judge at that stage, having regard to the statutory provision in s.46(3) of the Juries Act 1967, as here applicable, and the provisions of Order 47.02 of the County Court Rules, meant that the judge had a choice as to whether he would direct a new trial before a jury or judge alone or whether he would order that the matter proceed before him without jury so that he might determine the matter for himself upon the evidence called before the jury. The relevant principles and the manner in which the Court should approach the exercise of this discretion were conceded on both sides to have been authoritatively laid down by the Full Court in Pezzimenti v. Seamer[15] which makes clear the nature of the discretion and the factors which may be taken into account. There was no dispute that the observations of Brooking, J. in that case were to be applied, and it likewise has been conceded on behalf of the respondent that the onus rested on it as defendant in the circumstances to show that a trial should take place in a mode different from that previously embarked upon, i.e., that the trial should be conducted by judge alone rather than by a new trial before a jury.
[15][1995] 2 V.R. 32. See also Altmann v. Dunning [1995] 2 V.R. 1 (F.C.).

The judge reached the conclusion that it was not appropriate to direct a new trial by a jury but that he should proceed to hear the case himself. He took some four specific factors into account, namely, (1) that if a new trial were held before a jury, it was probable that the new trial would be considerably longer than the first trial as a result of cross-examination based on the existing transcript and by reason of the likelihood that other witnesses would be called; (2) that the length of trial would cause considerable additional expense to the parties which could not be met entirely by the Appeal Costs Fund; (3) that any new trial would cause inconvenience to witnesses and parties because of the need to attend again; and (4) that by proceeding to hear the case he could bring the trial to an end without injustice to the parties. He noted that it had not been submitted to him that he as the trial judge could not make fair and impartial findings based on the existing evidence. It should be noted also that the trial judge made reference to the fact that questions of court efficiency were not presently irrelevant because of the increase over the years in litigation, but it was by no means clear that that was a factor which the judge in the end took into account. It seems that the efficiency with which the judge was ultimately concerned was only that of resolving the dispute between the particular parties, a consideration which cannot be denied as having a bearing on the exercise of the relevant discretion.

It being conceded that the question involves the exercise of a discretion, at this stage, that is on appeal, the burden now rests on the appellant to show that the discretion has been wrongly exercised, either because the judge has wrongly taken into account certain considerations or failed to take into account relevant considerations or because the decision reached in the exercise of his discretion is such that no judge could reasonably have come to that conclusion. The appellant said that it undertook to satisfy that burden but not by a direct attack based on the irrelevance of the factors directly specified by the judge. Rather he sought by his counsel to demonstrate the omission of a relevant factor which it was contended demonstrated a fundamental error of approach, or by omitting generally a number of considerations said by the appellant to have been excluded from the judge’s consideration.

The principal point, as I would discern it, was a contention on the part of the appellant that he had a right to a jury trial which ought not to be taken away from him except for good and significant reasons. The premise on which the argument was founded was that the first trial was in fact before a jury. Now at one time in the history of the law a trial by jury, even in civil matters, was perceived to be a fundamental right, although it is presently not necessary to examine the reasons behind this approach of the common law. The fact is that in this State for many years neither plaintiff, nor for that matter defendant, has had an unqualified right to insist on trial by jury. Again it is not necessary to examine this history which appears sufficiently from the cases referred to in this part of the judgment, but trial by judge alone has been the conventional method of trial for many years, except in personal injury cases where, by choice of one or other of the parties, civil jury trials have remained common. See generally Williams Supreme Court Practice paras.47.02.15 and 47.02.20. But it has depended upon the choice of one or other party so that, for many years, plaintiffs were accustomed to seek trial by jury and later, for a significant period even extending up to the present, defendants have frequently, though not invariably, given notice in accordance with the rules.

Subject to the restrictions prescribed in the Accident Compensation Act 1985, unless one or other party gives notice that he or she requires trial by jury, all proceedings shall be tried without a jury unless the Court orders to the contrary: see para.47.02(3) of the County Court (General Civil Procedure) Rules. If a party desires trial by jury, then it is entitled to give an appropriate notice under para.(1) of r.47.02, in the case of a plaintiff by endorsing a notice to that effect on the writ or, in the case of a defendant, by written notice to the plaintiff and to the Registrar within ten days of last appearance by any defendant. If notice is given under paragraph (1), nevertheless the Court may direct trial without jury if it reaches the opinion that the proceeding “should not in all the circumstances be tried before a jury”: see para.47.02(2). Thus the balance under the present rules has shifted in the sense that actions will ordinarily be tried by judge alone unless one or other of the parties gives notice seeking a jury or unless the Court specifically orders that there be a jury trial.

The consequential change in attitude to trial by jury may be seen in the following passage from the judgment of Gaudron, McHugh and Hayne, JJ. in Gerlach v. Clifton Bricks Pty. Ltd.[16] where it was said, in rejecting an appeal based on the failure of a judge to direct trial by jury:

“The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice, is a startling proposition. It is true that, assuming the order dispensing with the jury should not have been made, a party to litigation has been wrongly deprived of the mode of trial which it desired. But that party has had a trial which, for present purposes, must be assumed to have been a trial according to law. No error in the conduct of that trial (as distinct from the mode of trial) has yet been established.”

Although the relevant provisions, both in statute and rules, in New South Wales are somewhat different, the proposition was clearly intended to have general application.

[16](2002) 209 C.L.R. 478 at 485.

What here occurred, of course, did not involve the learned judge depriving the appellant of a mode of trial which he had chosen or to which otherwise he may be said to have had a right. The appellant as plaintiff commenced his proceeding without endorsing any notice for trial by jury on his writ. If nothing more had occurred then the rules would have required the trial to have taken place before a judge alone. In fact what occurred was that the respondent as defendant gave a notice that the proceeding be tried by jury in accordance with the rule. The matter therefore proceeded to a trial conducted before a jury. As it turned out the respondent paid the jury fees only for the first day and the appellant chose, pursuant to s.15(4) of the Juries Act 1967, to pay the jury fees thereafter. Why he chose to pay the jury fees is not known but one must assume that it was upon advice and that, in the circumstances of the case as it then stood, he preferred the trial to continue before a jury. That decision, however, is not comparable to the one made by a plaintiff who endorses a request for jury on the writ or by a defendant who gives notice thereafter in accordance with the rules. In each of the latter cases one may say that the party giving notice for trial by jury has on the face of it a right to a jury trial, subject only to that being taken away in accordance with the rules. If a plaintiff (or defendant) has specifically chosen that mode of trial, then it should not be taken away without good reason.

In my opinion, therefore, the only person with a right to trial by jury was the party who had exercised its rights under r.47.02(1) which was the respondent as defendant. The appellant had chosen not to give notice requiring jury trial and, by reason of r.5.08(2) of the rules “the plaintiff shall be taken to desire trial without a jury”. The fact that jury fees have been paid by one side or the other ought to be of no consequence, for that is not the exercise of a right to require trial by jury, but a decision made in the particular circumstances of a case to seek continuation of that mode. If it were otherwise, a party might be disadvantaged in circumstances not dissimilar to the present because he or she seeks to bring a particular trial to an end albeit by a method which that party has not first chosen (or is taken to have desired and chosen). In the present case it would not have been fair to deny the appellant a trial by judge alone (if that was what he continued to want) merely because he had

chosen here to pay the jury fees.[17]

[17]The present case can be contrasted with the unreported decision of this Court in State of Victoria v. Psaila [1999] VSCA 193, where the Court held that it was unfair to exercise the discretion so as to order a trial by judge alone where the defendant had chosen to give notice requiring trial by jury: see especially per Brooking, J.A. at paras.[21]-[27], in which the other members of the Court (Ormiston and Batt, JJ.A.) concurred, although they dissented on another issue in the case. It may be noted, however, that what was said in Psaila may have to be qualified in due course by reason of the observations of the majority in Gerlach.

There being no right in the appellant to claim trial by jury at a second trial, the issue is to be resolved solely by considering in what circumstances the Court may overturn a discretion exercised in a procedural matter. The gist of the appellant’s case being that he had a right to jury trial, that factor was irrelevant in the exercise of the discretion. None of the matters raised by the judge himself were directly criticised as being factors which might not be taken into account, although there was some cavilling with the factual matters stated. The appellant suggested that too much emphasis had been given to the administrative convenience of the Court, to which reference had been made in passing by the judge. Although one should now be cautious in placing heavy weight on such a factor, I do not see that in this case it was given undue emphasis. None of the other matters raised showed any relevant error, assuming for present purposes that the burden had rested on the respondent as defendant. There is therefore no basis upon which one can say that the discretion to direct continuance of a trial before judge alone was wrongly exercised, having regard to the existing authorities, so that the appellant has not made out the grounds relied on in relation to the judge’s decision to continue the trial before himself as a judge sitting alone.

Whether the judge’s conclusions of fact were erroneous

The judgment ultimately handed down by the learned judge was, as noted previously, largely based on his assessment of the credibility of the appellant. In essence his Honour held, after referring to a number of unsatisfactory aspects of the appellant’s evidence, that he could not accept that evidence unless there were other evidence which could satisfy him that the events recounted by the appellant had taken place. Again he found no sufficient support from that other evidence. The primary issue at this stage was whether the incident alleged by the appellant took place, namely the fall from the upper level which the appellant alleged took place after his head struck a crane, but there was the further not unimportant question of whether any such fall or other injury caused the condition of which he now made primary complaint, namely the pain in his back and legs.

The appellant faces a very heavy task in overcoming findings based primarily on his credibility. It is unnecessary to set out in full the well known authorities especially in the High Court to the effect that an “appellate court will be bound generally to defer to any conclusions on the question of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses”, in contrast with the power of appellate courts to draw inferences from otherwise undisputed evidence.[18] Counsel therefore concentrated on what were said to be errors of fact relied on by the judge in forming his impression of credibility, as well as alleged failures to give appropriate weight to the independent evidence supporting the appellant’s contention that he fell from the upper level of the printing press. Although many examples of supposed error appear in the written outline, counsel did not choose to take the Court to them, describing only a very few examples. To what extent counsel was inviting the Court still to consider the many other contentions and transcript references appearing in the outline was not clear, but the argument was otherwise undeveloped. Counsel cannot expect the Court to trawl through large numbers of transcript references, unless it sees it fair specifically to agree to follow that course; counsel for the respondent are ordinarily entitled to know how the material is put against them, so that they can respond accordingly. In the present case respondent’s counsel’s outline, though not lacking in detail, remained an outline and did not condescend to deal with each one of the transcript references in the 26 pages of the appellant’s so-called outline. As the appellant’s counsel chose only to rely on a few matters in the course of oral argument, I shall concentrate on them, but shall also attempt generally to deal with the other matters raised.
[18]See, e.g., Walsh v. Law Society of New South Wales (1999) 198 C.L.R. 73 at 92 per McHugh, Kirby and Callinan, JJ. and Rosenberg v. Percival (2001) 205 C.L.R. 434 at 444, 488 and 505 at paras.[27], [164] and [222]-[223].

The difficulty facing the appellant is that his own evidence of the fall and its consequences was by no means consistent and the supporting witnesses’ accounts were likewise inconsistent. Doubtless the weakness of the case as presented and as revealed in the course of cross-examination provoked the application to amend which failed and which has been dealt with earlier in this judgment. Unfortunately these inconsistencies must be seen as critical to the appellant’s case, for, as the learned judge correctly pointed out, unless he was satisfied on the balance of probabilities that the plaintiff fell, then his case on liability likewise was bound to fail. Moreover, unless it was shown that the appellant fell from one level to another, it would be difficult for the appellant to make out any case in negligence for that depended on the alleged failure of the respondent to provide a safe workplace, inasmuch as he had claimed that it negligently failed to provide suitable guard rails to prevent the alleged fall.

As to his credibility, the appellant’s case suffered at the outset from some initial inconsistencies. The case was originally pleaded as one resulting from his being struck by a crane which caused him to lose balance and thus fall, whereas in evidence-in-chief (as in fact it had been opened before the jury) the appellant alleged only that in getting up from doing his assigned task, fixing a hook to a roller, he himself hit his head on the crane so as to cut it and lead to the need for the stitches inserted by Dr Myers. Secondly, the appellant exaggerated the extent of the alleged fall, from the sixth to the fifth levels, by saying in evidence that it was some six to eight feet and then agreeing in cross-examination that it was only some four feet, the distance thereafter accepted by the appellant, as appears in his counsel’s summary of facts. The appellant’s counsel placed heavy emphasis on the judge’s seemingly misstating the appellant’s exaggeration of the distance as amounting to a claim that he had fallen eight to twelve feet. Although it is correct to say that in oral evidence the first claim was six to eight feet, in fact both in his affidavit in support of an application pursuant to s.135A of the Accident Compensation Act 1986 and in the required claim form signed by him (each put in evidence and appearing in the Appeal Books) the appellant had asserted that he had fallen six to twelve feet below the upper level. Although one may concede that the judge misstated the figures slightly, there is no doubt that at one stage the appellant was asserting a fall of up to twelve feet, whereas there seems now no dispute that it was only four feet.

Thereafter there were a good many more inconsistencies on the part of the appellant, as the trial judge pointed out. When he first went to a doctor he complained neither of a fall nor of any backache or injury to his back. Indeed the pain which ultimately led to his (first) hernia condition, whatever caused it, was only incidentally mentioned to Dr Myers. But the respondent rightly concentrated on various allegations, inconsistent with the story that he fell and inconsistent with his general account of how he came to suffer from the hernias and, more particularly, his back condition.

In general terms, on this issue of credibility, the learned judge concluded that the appellant had persistently exaggerated his injuries and thus concluded that he was not suffering to the extent that he claimed in his evidence. In the end the appellant had said that he was unable to go back even to light duties with the respondent, notwithstanding its considerable efforts to retrain him for lighter work. Those lighter duties did not involve the bending and pushing which was previously required of him. At the same time he saw it possible to take on the task of being a trainer with the Carlton Football Club, in due course becoming the head trainer. Although he may be commended for obtaining some exercise in this way, the video tape taken of his activities on the field were assessed by the judge, correctly in my opinion, as showing a person whose abilities to move were far greater than he had described and which he said had prevented him from performing even the light duties offered to him.

In particular, the appellant has sought to refute one of a number of factors relied on by the judge as evidencing the appellant’s lack of credit worthiness, namely that his Honour said that it was “not the plaintiff’s case that he staged a recovery in his health between August ’99 when he claimed he had to discontinue [his attempted return to work with the respondent] and the year 2000, and in particular the August final of 2000 when he sprints across the MCG”. Here, however, the appellant had been in a dilemma for the purposes of the trial, or at least his legal advisers were in some dilemma. There is no doubt that the appellant had said that he found the substantially lighter duties cutting the stencils and the like with the respondent still too difficult to perform because of his back pain. Nevertheless, the appellant’s advisers were well aware that, by the time the football season commenced the following year, the appellant had recommenced acting as a trainer for the Carlton Football Club and that his activities as head trainer at the Grand Final had been video-taped later in the year 2000. They had to explain how it was that the appellant so soon after rejecting the lighter duties with the respondent, had become capable of running around the MCG without apparent difficulty and performing a number of duties which might appear to judge or jury inconsistent with his attitude to performing lighter duties. The evidence thus tended to be equivocal, in the sense that it sought to explain some improvement in the appellant’s condition consistent with his ability to act as head trainer and yet consistent also with a total incapacity to perform other work, if his activities as trainer could fairly be described as work. Not surprisingly for the purpose of this argument the appellant has called in aid certain concessions made in cross-examination on behalf of the respondent which not surprisingly was seeking to demonstrate that the appellant’s ultimate condition was not as bad as he made out.

Nevertheless it was not the essence of the appellant’s case that he had “staged a recovery” by the time he had become head trainer with the Carlton Football Club; far from it, for his case at trial was that he was totally unable to perform any other work, so that his future economic loss was put to the Court based, in part, on conventional calculations based on a total absence of future income, but so as to make allowance only for the income he could be expected to earn as a trainer over the following five years or so. Therefore the present submission on behalf of the appellant that “he had recovered between the discontinuance of the return to work in July 1999 and August 2000” is a gross oversimplification. Even the medical evidence now primarily relied upon shows only that his overall physical condition had improved, largely through exercise, but noted that he still had “persistence of pain in his spine”. Looking, however, at the case originally made by the appellant he claimed in evidence-in-chief that he “continued on having pain even up to today. I still have pain in the back and in the legs and in the groin so I just continued on to have pain …”. More importantly for this purpose, even though a number of attacks had been made on his credit in the course of cross-examination, counsel re-examined the appellant to this effect:

“From the time you had the fall to the time when – well, in fact from the time you had the fall has your back ever got better?---No.
Has it got worse?---No, the pain is all the same. It’s been – yes, it’s been the same.”

I shall not refer to the other passages relied on, as contained in the medical evidence generally, for this reason only: assuming that concessions were made by some doctors either in evidence-in-chief or cross-examination that the appellant’s improved fitness had led to some lessening in his back condition by the time of trial in late 2000, it was still “not the plaintiff’s case” that he had recovered to an extent that he was able to obtain conventional work, even consisting in light duties. All the appellant through his counsel was prepared to concede at trial was that some calculation should be made to reduce damages for future economic loss by taking into account the stipend of $16,000 a year received for his duties as head trainer with the Carlton Football Club. So far as I have been able to discover, there was no evidence led as to attempts to obtain other light work after he turned down the offer of further light duties with the respondent nor, except in the most general terms, that he could obtain some such work perhaps after being retrained as a masseur. In other words, the appellant’s claim as to partial recovery in 2000 might fairly have been regarded by the judge as a concession to meet the exigencies of the case, namely, that he had been engaging in activities, captured on video tape, which showed a comparatively injury free person moving in various ways across the Melbourne Cricket Ground. The point of criticism therefore made, at some length and in some detail, is thus of no consequence.

Again counsel for the appellant have made detailed and elaborate criticisms of succinct findings made by the judge as to how the appellant presented to various doctors in 1998, 1999 and finally in 2000 just a few months before the trial. The point of reaching these conclusions and referring to the apparent condition of the appellant was not in any way because the judge accepted as accurate what had been said to the doctors or the limited findings they could make based on his movements and complaints. Rather what the judge was trying to do was to lay a basis for a contrast between the appellant’s apparent condition in each of these years with his activities as a football trainer especially in the year 2000 when the video tape was made. Counsel seem not to have perceived the point of these findings for undoubtedly, as was pointed out in detail in the written outline, there was much evidence which qualified this, so that for other purposes it may have been relevant to look at that other evidence. The issue was one concerning credit and the object was to contrast the complaints made and the physical condition which the appellant purported to demonstrate with his ease of movement as a trainer on the football field. So when the judge is criticised for saying that the particular category of evidence had given “a picture of an invalid incapable of performing the lightest of part-time clerical work”, it should be realised that he was not seeking to accept that that was the fact but rather seeking to demonstrate that the appellant was showing an incapacity which was so much exaggerated that it was difficult to believe the appellant on most of his critical allegations. Indeed, in relation to a complaint made as to the witness Marshall’s evidence, the surgeon later gave evidence to the effect that he had seen the video tape from which he had concluded that the appellant’s apparent incapacity was inconsistent with what he then observed, thereby confirming his ultimate view that the appellant was not truly disabled.

To be fair to counsel for the appellant, the point that was sought to be made was that there was a difference between what had been observed in 1999 (and earlier) and what was said to be the appellant’s improved condition in the year 2000. As already stated, there may have been some modest improvement but not to the extent that would support the argument put on this appeal, nor to the extent of showing that the judge’s conclusions as to his credit were erroneous. Moreover, Mr Marshall’s final observations were made when the appellant had seen him towards the end of the football season for the year 2000 when his alleged improvement during that year should have resulted in his giving a different picture of fitness to Mr Marshall at that last examination. It was thus an irrelevant comparison.

For the purpose of testing the appellant’s credibility, the judge had also drawn attention in part to the appellant’s continued submission of WorkCover claims in the form of unqualified certificates of unfitness for work right up to the end of September 2000. Moreover his Honour had drawn attention to the fact that the appellant had not advised WorkCover that he had been paid or was entitled to be paid $16,000 by the Carlton Football Club for his activity as a trainer. The judge noted that on some forms, despite the doctor’s certificate of unqualified unfitness, the appellant had filled in the back of the form by ticking the appropriate box to the effect that he had engaged in paid employment, and on other forms he had somewhat curiously ticked both the “have” and the “have not” boxes relating to engagement in paid employment, on each occasion with the Carlton Football Club. Counsel for the appellant contended that the judge had misunderstood the tenor of the evidence and the way in which such payments should be taken into account as “notional payments” for the purpose of calculating accident compensation payments. The judge was criticised for concluding that the appellant had never advised WorkCover that he had been paid or was entitled to the $16,000 from the Carlton Football Club. There can, however, be no doubt that the appellant conceded in cross-examination that he had not told the WorkCover Authority of his payment of $16,000 or, as he qualified it, that he had told it that he had been paid, presumably for his activities as a trainer, but that “I don’t disclose the amount, that is – I mean, they didn’t ask me the amount”. In fact, as he explained, he had done no more than fill out the form and write on the back of it that he had been employed by the Carlton Football Club. As to making a disclosure of the sum or sums paid (or earned) there seems much more confusion. At one stage the appellant said that he received a letter from the WorkCover insurer asking him to provide details of his earnings and that he had made a phone call but he never said in evidence, so far as I am aware, whether he told the insurer that he was receiving payments and in particular how much they were. In answer to some questions from the judge it appeared that the appellant had gathered that the payments would be used to calculate appropriate deductions from the WorkCover payments, but again there seems no statement that the sum either of $16,000 or payments on a monthly or other basis were disclosed to those responsible for paying his accident compensation.

Secondly, as to the annual salary of $16,000 paid by Carlton Football Club to the appellant as head trainer, the judge commented that the appellant could not explain to his satisfaction why he had asked the club to put that payment “on hold”. This request was recorded in a memorandum of the club but the appellant’s answers to the effect that he did not need the money at the time and that “we kept that money in reserve just to pay bills” seemed a strange response, at least to the judge. The way in which a witness answers questions in the witness box is essentially a matter for assessment by the judge (or jury) who is able to observe the way in which that witness answers the questions, especially those put in cross-examination. The appellant submitted that in fact it had been conceded a little later on behalf of the respondent that the appellant had been paid monthly by the club for his services as trainer. This was said to have been conceded by counsel for the respondent, but in substance all that occurred was that the payments were put by counsel directly to the appellant who had agreed that they had been made essentially on a monthly basis, although there had been a subsequent larger payment in July 2000. That may well have been the case, but the issue was as to why the appellant had asked for the $16,000 to be put on hold and as to the manner in which he sought to explain that in the first place without then and there divulging that in fact he had received the money on an almost monthly basis. It is a small matter of credit but the appellant’s contentions do not answer it.

In short the appellant has not succeeded in showing that the judge was not entitled to reach the conclusions he did on the question of the appellant’s credit. There were other important factors as well, one of which was the failure to complain of any back injury for well over a year after the alleged fall occurred. It is perhaps easier to attribute the cause of the hernias to what had occurred when the appellant had injured himself, but even then the appellant’s answers, largely attributing those difficulties to the heavy pushing and lifting duties he was required to perform detract very significantly from the strength of any inferences that might be drawn by reason of his suffering from the hernias. At best they were as much attributable to the alleged fall as they were to the heavy duties he was required to undertake, for his evidence did not convincingly show that the hernias resulted from any fall. In any event the appellant’s claim for damages arising separately from the hernias was in the end negligible.

The appellant’s contentions next sought to attack the judge’s second line of argument leading to his refusal to accept the appellant’s account of the alleged fall. The judge, having reached his conclusion as to the appellant’s credibility, then properly turned to consider whether there was other evidence which could satisfy him over and above the appellant’s unsupported testimony as to the alleged fall.

This evidence from other witnesses has already been summarised and it may be observed in general terms that for various reasons it provides no independent evidence that the appellant fell from level 6 to level 5 of the printing machine on the day in question. The arguments put on behalf of the appellant are again long-winded and, I regret to say, tendentious.

My concern over the nature of the examination and criticism of the judge’s findings may be seen in counsel’s analysis of the evidence of the first relevant witness, Mr De Prada. It cannot be denied, nor did counsel seek to do so, that Mr De Prada was not looking towards the appellant at the time of the incident but was facing in the opposite direction. He had heard a bang or noise and then looked around but his view was obstructed to some extent. What he said was that he saw the appellant doubled over and holding his head, whatever precisely was the kind of noise he had heard. There is no dispute that the appellant did hit his head, but the question is what happened thereafter. The witness had repeated himself in somewhat different terms saying that the appellant was “like bent over, like sort of crouching bent in half”. From this, without more, it may have been possible to infer that the witness saw the appellant seated on level 5 with his buttocks on the ground. The judge, however, pointed out in his reasons for judgment that what he saw was the appellant standing on the level 5 platform and that, because he was standing, it was hard to infer that he had already risen from the seated position which the appellant had claimed he was in. If that were the case, then the judge’s conclusion seems eminently reasonable.

What is disturbing, however, is that the appellant’s counsel assert that “at no stage in Mr De Prada’s evidence did he say the appellant was standing” and further that it was “not apparent” how the judge had made his finding that Mr De Prada had seen the appellant standing. The fact is, contrary to that submission, Mr De Prada had agreed in response to some questions from the judge that he saw the appellant standing up. These were the relevant questions and answers:

“Could you demonstrate that? [referring to the appellant being ‘doubled over holding his head’]---He was bent over and just like holding his head.

Standing up and bending over holding his head?---Yes. Sort of, yes.” (Emphasis added.)

It is clear that the witness then demonstrated this after getting out of the witness box and repeating that the appellant was ”bent over and was holding his head”, but there is no suggestion from the judge or from counsel that he had shown that the appellant was not standing. The question received an almost entirely responsive answer, certainly one which was not challenged thereafter.[19] Nevertheless, in setting out in counsel’s outline a number of statements relating to the appellant’s position beginning immediately before this particular question and finishing immediately afterwards, the words “standing up” have been, most regrettably in my opinion, omitted. For obvious reasons I cannot accept this contention on behalf of the appellant and it is unnecessary further to examine the likelihood or otherwise of a person seated on the ground being described as “bent over like sort of crouching …”.

[19]A similar pair of questions and answers appeared in the cross-examination.

Two other submissions about Mr De Prada’s evidence may likewise be rejected. There was an elaborate argument to the effect that the noise was loud so that it was more likely that the appellant had fallen onto his buttocks rather than that he jumped down from level 6 to level 5 after hitting his head. The logic of the contention escapes me. Secondly Mr De Prada’s undoubted failure to say after he came down to ground level that the appellant had alleged he had just fallen is treated again in an obscure way as supporting the proposition that that was what he really had said. Counsel relied upon what Mr De Prada could not remember as to what happened on another occasion. The connection with the present facts escapes me also. The evidence given directly by Mr De Prada was that the appellant had “just said he hit his head”, after which Mr De Prada had left. Undoubtedly, if there had been convincing evidence that the appellant had then claimed to another witness that he had fallen, this matter may have been of some consequence but the direct evidence lends no support to the appellant’s contention on this point.

So far as the next witness is concerned, there was some support for a conclusion that the appellant had said, when he reached ground level, that he had fallen on his backside. This was part of the evidence Mr Whitworth gave in evidence-in-chief. Unfortunately for the appellant the judge did not accept Mr Whitworth’s evidence on this issue. One difficulty was that Mr Whitworth had likewise not seen the incident and that what he recalled seeing was the appellant seated on his backside at ground floor level, not at level 5. No other witness, not even the appellant so far as I am aware, supported a view that he was seated when he descended to ground level and had spoken to Mr De Prada and Mr Whitworth. A more significant reason for the judge’s rejection of this aspect of Mr Whitworth’s evidence was that he made a diary note which had made no mention of the appellant’s claim that he had fallen and had simply referred to the appellant’s statement that he had hit his head on the machine and had been sent to the doctor for treatment. The appellant sought to challenge the judge’s conclusion about the diary note and his reasons why the claimed fall might or might not have been included in it, but in the end it was the judge who saw the witness, heard his cross-examination and was entitled to reach a conclusion as to the reliability of his testimony in all the circumstances. Again I cannot accept the appellant’s contentions in this regard.

The third of the direct witnesses, if so they can be described, was Mr Griffiths but he heard only a cry out and then a thud while he was at the washbasin. When the appellant came downstairs he had asked him what had happened to which he had merely responded “I’ve just smashed my head”, without more. The only other “evidence” was that when he came to work the next day Mr Griffiths had been told by a person unnamed that the appellant “had fallen”, but in what manner was not, of course, the subject of any further detailed material. This material was clearly hearsay and suffers from the perennial vices of that kind of evidence, namely, that the reliability of the account is uncertain, its source is not in this case stated and there has been no opportunity to cross-examine the provider of that hearsay material. It cannot assist the appellant’s case. There was a further curious submission on behalf of the appellant[20], but even if one was to guess at its real substance it is not persuasive.
[20]It reads: “The evidence of Griffith as to what he heard and you is non consistent with a fell than any other explanation” (sic).

The rest of the judge’s reasoning on credit depended on an analysis of the medical evidence, or more precisely, on evidence from doctors as to the kind of complaints made by the appellant over the period from the time of the incident. What has already been summarised above clearly enough shows how uncertain the connection was between the incident on the printing machine and the ultimate alleged back condition, which undoubtedly, as the judge recognised, would have been one causing significant pain. One may accept, indeed, that the appellant did suffer from some form of back condition over the succeeding two or three years and it was such as to make it difficult for the plaintiff to continue his employment as a printer with the respondent. The problem is to connect that condition with the event of 19 March. There seems little doubt that complaints directed to any back condition were not made until the following year, in about April 1998, some thirteen months after the alleged fall. In fact his own doctor, Dr Carter, did not know of any fall until September 1997 at which stage the complaint was, as it had been on 7 April 1997, one complaining of a hernia. Both the appellant and his doctor seemed at that early stage to attribute the condition to the heavy pushing and lifting required of the appellant in his work at Visyboard.

In my opinion it is unnecessary to trace the precise histories given by the appellant further. Whatever may be said to refute this on his behalf, the delays in making a relevant complaint of a fall and in particular of a back condition render it less likely that there was such a fall and more particularly that the fall was a contributing cause to his back condition. None of the matters raised in the written or oral submissions of the appellant provide a basis for concluding that the judge’s view of this material was erroneous. It was essentially a matter going to credit and the judge, after hearing the appellant in particular, was entitled to reach the conclusion he did as to the reliability of his account.

Because the judge was unable properly to be satisfied that the appellant’s account of a fall on 19 March 1997 was accurate, it follows that his conclusion that the appellant had not made out that part of his case dependent upon a fall cannot otherwise be successfully attacked. There being no proper basis upon which this Court could substitute a holding that there was a fall, not only must these grounds

be rejected but the appeal as to the merits of the appellant’s claim must be dismissed.

For the foregoing reasons the appeal should be dismissed.

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Ormiston, J.A., I agree that this appeal should be dismissed for the reasons given by his Honour.

CHERNOV, J.A.:

I have also had the considerable advantage of reading the draft reasons for judgment of Ormiston, J.A and I, too, agree that the appeal should be dismissed for the reasons given by his Honour.

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[2005] VSCA 132

25 May 2005