Suleski v Sons of Gwalia Ltd
[2005] WASCA 220
•18 NOVEMBER 2005
SULESKI -v- SONS OF GWALIA LTD [2005] WASCA 220
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 220 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:73/2004 | 8 SEPTEMBER 2005 | |
| Coram: | WHEELER JA MCLURE JA MILLER AJA | 18/11/05 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BORIS SULESKI SONS OF GWALIA LTD |
Catchwords: | Appeal Fresh evidence Application at trial to declare witness hostile Application refused Attempt to put before Court new material Turns on own facts Tort Negligence Employer's liability Mining accident Whether employee disregarded instructions to stay away from area where injured Whether employer breached any duty of care in the circumstances Turns on own facts Evidence Application to declare witness hostile Demeanour Whether prior statement inconsistent Turns on own facts |
Legislation: | Nil |
Case References: | Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 McLean v Tedman (1984) 155 CLR 306 McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 Price v Manning (1889) 42 Ch D 372 R v Williams (1913) 8 Cr App R 133 Willis v Magistrate's Court (1996) 89 A Crim R 273 Australian Electrical Electronics Foundry & Engineering Union WA Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145 Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd (2004) 187 FLR 270 Australian Traineeship System and Colchester GR Pty Ltd t/as Shell Service Station Waverley v Wafta [2004] NSWCA 230 CDJ v VAJ (No 1) (1998) 197 CLR 172 Commissioner of Main Roads v Jones (2005) 215 ALR 418 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Fredericks v May (1973) 47 ALJR 362 Halge v George [2004] WASCA 141 Jones v Livox Quarries Ltd [1962] 2 QB 608 Maddalena v CSR Ltd [2004] WASCA 231 Martin v Clarke [2005] WASCA 66 McLellan v Bowyer (1961) 106 CLR 95 Miller v BP Kwinana Ltd [2002] WASCA 201 Mulholland v Mitchell [1971] AC 666 Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312 Nominal Defendant v Owens (1978) 22 ALR 128 Orr v Holmes (1948) 76 CLR 632 Raimondo v South Australia (1979) 23 ALR 513 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Shedden v Patrick (1869) LR1Sc&Div 470 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 Tame v State of New South Wales (2002) 211 CLR 317 Townsend v Collova [2005] WASC 4(S) Westgold Resources v St George Bank, unreported; SCt of WA; Library No 980717; 9 December 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SULESKI -v- SONS OF GWALIA LTD [2005] WASCA 220 CORAM : WHEELER JA
- MCLURE JA
MILLER AJA
- Appellant
AND
SONS OF GWALIA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : SULESKI -v- SONS OF GWALIA LTD [2004] WADC 88
File No : CIV 718 of 1998
(Page 2)
Catchwords:
Appeal - Fresh evidence - Application at trial to declare witness hostile - Application refused - Attempt to put before Court new material - Turns on own facts
Tort - Negligence - Employer's liability - Mining accident - Whether employee disregarded instructions to stay away from area where injured - Whether employer breached any duty of care in the circumstances - Turns on own facts
Evidence - Application to declare witness hostile - Demeanour - Whether prior statement inconsistent - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M D Cole
Respondent : Mr P V Batros
Solicitors:
Appellant : Terrace Law
Respondent : Mullins Handcock
Case(s) referred to in judgment(s):
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman (1984) 155 CLR 306
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3
Price v Manning (1889) 42 Ch D 372
(Page 3)
R v Williams (1913) 8 Cr App R 133
Willis v Magistrate's Court (1996) 89 A Crim R 273
Case(s) also cited:
Australian Electrical Electronics Foundry & Engineering Union WA Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd (2004) 187 FLR 270
Australian Traineeship System and Colchester GR Pty Ltd t/as Shell Service Station Waverley v Wafta [2004] NSWCA 230
CDJ v VAJ (No 1) (1998) 197 CLR 172
Commissioner of Main Roads v Jones (2005) 215 ALR 418
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Fredericks v May (1973) 47 ALJR 362
Halge v George [2004] WASCA 141
Jones v Livox Quarries Ltd [1962] 2 QB 608
Maddalena v CSR Ltd [2004] WASCA 231
Martin v Clarke [2005] WASCA 66
McLellan v Bowyer (1961) 106 CLR 95
Miller v BP Kwinana Ltd [2002] WASCA 201
Mulholland v Mitchell [1971] AC 666
Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312
Nominal Defendant v Owens (1978) 22 ALR 128
Orr v Holmes (1948) 76 CLR 632
Raimondo v South Australia (1979) 23 ALR 513
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Shedden v Patrick (1869) LR1Sc&Div 470
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
Tame v State of New South Wales (2002) 211 CLR 317
Townsend v Collova [2005] WASC 4(S)
Westgold Resources v St George Bank, unreported; SCt of WA; Library No 980717; 9 December 1998
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA. I agree with those reasons and have nothing to add.
2 MCLURE JA: I agree with Miller AJA.
3 MILLER AJA: The appellant appeals against a decision of Martino DCJ in the District Court at Perth on 14 May 2004 when the appellant's action for damages against the respondent was dismissed. The respondent has filed a Notice of Contention whereby it contends that the learned trial Judge's decision should be affirmed on additional or alternative grounds. The respondent has filed a notice of cross-appeal seeking to overturn some of the learned trial Judge's findings at trial and contesting the provisional award of damages which the learned trial Judge made. That provisional award was made by the learned trial Judge in case he was found to have been wrong in his conclusion on the issue of liability. His Honour provisionally assessed damages at a total of $821,215.
Grounds of Appeal
4 There are five grounds of appeal:
(1) The learned trial Judge erred in failing to grant leave to the appellant to cross-examine a witness named Andrew Marcel Loreck in relation to prior inconsistent statements.
(2) The learned trial Judge erred in failing to consider, or properly consider, documentary evidence tendered at trial which contradicted the assertion of Mr Loreck that he had told the appellant to stay on the pit floor of the mine where the accident occurred and not to go onto the berm.
(3) The learned trial Judge erred in concluding that Mr Loreck had told the appellant to remain on the pit floor of the mine in that his Honour failed to consider the totality of the evidence and relied instead solely upon difficulties the appellant had in remembering what had occurred.
(4) If (which was denied) the appellant went onto the berm to mark a face to be excavated contrary to instructions given by Mr Loreck, the learned trial Judge failed to consider whether the giving of the instruction absolved the
(Page 5)
- respondent of any duty of care to the appellant and whether the actions of the appellant amounted only to contributory negligence.
(5) By reason of the fact that the learned trial Judge found for the appellant on many issues, the order as to costs in favour of the respondent was erroneous.
The Evidence at Trial
5 The appellant's claim against the respondent was for damages for personal injuries he allegedly sustained on 9 May 1996 whilst working as a technician at the respondent's open-cut mine approximately five kilometres from Southern Cross in the State of Western Australia. It was the appellant's claim that on the morning of 9 May 1996 he was working on a ledge approximately five metres above the mine pit floor, using powdered lime to mark areas to be excavated. His contention was that he was using that lime to mark the rock face below him when he fell to the mine floor and sustained severe injury.
6 The evidence revealed that the appellant began work at 6 am on 9 May 1996 at the Sunbeam pit. He first went to the office of the geologist where he collected a map. This was a standard instruction for him at the commencement of a morning's work. He then went to the mine pit to observe what progress had been made on work during the night-shift. He returned to the geologist's office and, according to his evidence, he collected two 15-kilogram bags of lime. Lime was used in the mine for the purpose of marking pit walls when the angles of the walls needed to be reduced by excavation or when layers of the ground were being removed to gradually form a pit.
7 The walls of the open-cut mine were approximately five metres high. A ledge or berm was left at the foot of each wall. Five-metre walls were created in two stages. Broken rock was removed to a depth of two and a half metres and once that layer had been removed, the next two and a half metres were taken away.
8 Generally, the system used for marking areas of wall to be excavated was to put lime on the wall to a height of approximately two and a half metres from the pit floor. There was, however, evidence that at times the wall of a pit was marked by a pit technician pouring lime over the edge of the pit wall from the berm above it. There was a conflict of evidence on this point, because the witness Mr Loreck made it clear that,
(Page 6)
- in his view, the only way to mark a pit wall was to do so from the floor of a pit.
9 On 9 May 1996, the appellant spoke to Mr Loreck at about 9 am. Both men were then at the top of the pit. According to the appellant, Mr Loreck told him to go into the pit and mark an area of a five-metre wall within the pit, as indicated on the map which the appellant had collected from the geologist's office that morning. The appellant said that he first repaired a pipe, then took a vehicle and drove into the pit with the two bags of lime. He drove on a small road to go to the top of the ledge which was to be excavated. He was unable to drive onto the ledge as there was insufficient room on a ledge or berm for a vehicle. He got out of the vehicle and carried the two bags of lime with him onto the ledge. He said that he walked approximately 15 metres. The ledge upon which he was walking was three to four metres wide and five metres above the pit floor. He left one bag on the ledge about half a metre from the edge and then took the other bag with him to the edge to "mark-up" the wall. Thereafter he had no recollection of what occurred. He said:
"Last time I remember just one bag's left in the side, another bags I take with me, then going to the edge - to the ledge, to the corner. If not going to the corner very hard to see where to put lime. To this time I remember everything but after that nothing."
10 The appellant was cross-examined in accordance with the contentions that had been filed in the respondent's defence. It was put to him that he had been told by Mr Loreck, on the day in question, to stay on the pit floor. The appellant denied this and contended that Mr Loreck did not tell him to stay on the pit floor and, furthermore, had no experience as a geologist. He contended that there was no instruction to prevent him from marking the face of the rock with lime from a ledge above it and that he had done the same job in a number of pits. They were the Polaris pit, the Jupiter pit and the Mercury pit. Various geologists had allowed him to do this.
11 It was put clearly to the appellant that the instruction of Mr Loreck was that he was to stay with the digger on the pit floor and that under no circumstances had he been instructed to climb the face of the pit to mark out the walls with lime from above. This, the appellant denied. He contended, in fact, that he had been instructed to do exactly what he did.
12 Mr Loreck was called to give evidence on behalf of the appellant. He stated that he had a Bachelor of Applied Science with a major in
(Page 7)
- geology and had graduated from Curtin University of Technology at the end of 1986. He had ten years' experience as a geologist in goldmining. In September 1995 he took the position of open-pit geologist with the respondent at the respondent's Marvel Loch operations. He knew the appellant, who was at all relevant times employed as a pit technician by the respondent. His job specification was to ensure the efficient digging of ore out of the open cut. He elaborated upon his position as follows:
"With the geologist like me he would mark up the ore body. Once that was completed he would then supervise the actual digging of the ore by the digger and loading of the ore onto the trucks. He would document the time of day that the ore was deposited into each truck, and so therefore keep a tally during the day of how many trucks of ore from that particular (indistinct) were trucked out of the mine. That formed the basis of how much ore we knew was mined out of the pit."
"What was the reason you were checking on Mr Suleski?---To see how he was going with the excavation of the ore at the northern end of the pit.
What time was this, roughly?---11 o'clock. Again, it's nearly eight years ago, but between 10 and 11 am.
Were you aware if there were any other people in the pit at the time?---Yes. I remember seeing other people in the pit, yes.
There were other people in the pit?---They were sort of down this area of the pit. Mainly the blast people were working on these rigs.
You said that you drove down there. What happens?---What happens next?
(Page 8)
- Yes?---I drove up near to the northern wall and I see Boris near his vehicle. He was sort of leaning against it and didn't look too very well."
14 Mr Loreck concluded that the appellant looked as if "he had a bit of a tumble". He surmised that he had fallen and took him to the Southern Cross Medical Centre. He observed that the appellant had lime on his left thigh down to the knee. There was some lime at the bottom of the pit.
15 Mr Loreck said that there was lime on the vertical face of the "batter" or side wall of the pit. It was about three-quarters of the way up the wall. That made it about two metres from the pit floor. He could not recall seeing any other lime. The lime he did see was lime that he had put there. He had done that as a consequence of a morning meeting where it was brought to his attention that excavators were to scrape down the batters that morning.
16 In cross-examination, Mr Loreck said that he had first seen the appellant on the morning of 9 May at about 6.30 am at the start of the shift. That was in the office carpark area. Later, at about 10 am, he saw him working on the pit surface staking out a cable route for electrical engineers. That was at a location near the contractor's office. He had almost completed hammering in the stakes to mark the route and it was at that point that Mr Loreck gave him his instructions. The cross-examination proceeded as follows:
"Did you give him an instruction at that stage?---Yes.
Was your instruction for him to go to the pit floor in Sunbeam pit to monitor the digger extracting ore in the pit?---Yes.
Did you ask him to work with the digger operator?---Yes.
And did you specifically tell him that he was to stay with the digger on the pit floor?---Yes.
Why did you give him that specific instruction?---I was concerned for his safety because I didn't want him to go onto the top of - I didn't want him to go up here, basically. I didn't want him to go there.
…
(Page 9)
- Why didn't you want him to go there?---Because I didn't want him leaning over the edge with the bag of lime to pour lime - I didn't want him to pour lime down the top of the face there.
You told him to stay on the pit floor?---Yes."
17 Further cross-examination was as follows:
"Did you at any time instruct him to climb the face of the pit, that's the vertical face of the pit, to mark any area for mining?---No.
And you wouldn't do that, would you?---No.
It would be a crazy thing to do, wouldn't it?---Yes.
It would be highly dangerous, wouldn't it?---Yes.
And anyone with your experience and indeed Mr Suleski's experience should know that. Is that right?---Yes.
You certainly didn't instruct him to carry a 15 kilogram bag of lime up a ramp and stand on a berm to mark the vertical face?---Correct.
You in fact yourself that day had marked the vertical face yourself?---Yes.
Did you do it standing on the pit floor?---Yes.
It's the obvious way to do it, isn't it?---Yes.
It's the safe way to do it?---Yes.
Anyone involved in mining knows that?---Yes."
18 At the conclusion of the cross-examination counsel for the appellant made "an application" which was a somewhat equivocal application to have Mr Loreck declared a hostile witness. The submission was as follows:
"COLE, MR: Yes. Yes, your Honour, I make that application on the basis that this witness has made two previous statements in relation to the matter. He has made a statutory declaration when the matter was subject to investigation.
(Page 10)
- He has also, in terms of an accident report - it was completed by him in relation to this accident, presumably for internal purposes with the defendant, and in neither of those statements is there any mention of this notion that he has told Boris not to go off onto the ledge. And I would wish to put those statements to him as it seems to me it's a matter that you will need to decide in terms of assessing his credibility in respect of the matter. It seems to me it's permissible on the basis that effectively he is to some extent a hostile witness."
- Counsel for the respondent pointed out that it was not a question of whether the witness was "somewhat hostile". Counsel had to make a decision either to seek an order that the witness be declared a hostile witness or not.
19 It appears that the application was then transformed into an application to declare the witness hostile and counsel for the appellant said:
"COLE, MR: Sir, it's not a question of his demeanour, it's a question in terms of the answers that he has given in terms of whether they are consistent with previous statements that he's made and if they are not consistent with those statements then you have the ability, in my submission, to have him declared hostile, not in the sense of demeanour but that's just the general terminology and I am then permitted to cross examine him in relation to those previous statements."
20 Counsel elaborated upon his submission by referring to a statutory declaration made by Mr Loreck and, in particular, to pars 11 and 12 thereof. He said:
"… at 11 he says:
I asked him to supervise the digging of the batters in the open pit. I asked him to work with the digger operator.
Then in paragraph 12:
I expected Boris to work from the pit floor. I did not instruct him to climb the batter or work from an elevated point within the pit.
Then it goes onto other matters that would not be relevant. And in my submission that's a statement that is inconsistent with the
(Page 11)
- evidence that he's given today. Today he has chosen to take his evidence much further.
He wishes to say in his statement that he specifically told Mr Suleski not to go onto the berm because he considered it to be dangerous, and I would say that is entirely inconsistent with that."
- It will be seen immediately that counsel misunderstood the evidence of Mr Loreck. He did not say in evidence that he had specifically told the appellant not to go onto the berm.
21 Counsel for the appellant also referred to an accident investigation report in which it was said that there was no mention of anything that he had said in evidence and in which he had made a recommendation that personnel should ensure that workmen were aware of the correct procedures climbing up and down five-metre faces.
22 The learned trial Judge refused the application and gave the following reasons:
"MARTINO DCJ: Thank you. I refuse the application for an order that the witness Mr Suleski is a hostile witness. Having observed him there's nothing about his demeanour which would indicate to me that he's a hostile witness. Having heard, Mr Cole, the alleged inconsistencies it seems to me in prior statements are not inconsistencies. They are [sic] if anything just don't go to as much detail as his evidence. For those reasons I refuse the application."
Findings of the Learned Trial Judge
23 The learned trial Judge carefully considered submissions in relation to the credibility of the appellant and Mr Loreck. He preferred the evidence of Mr Loreck to that of the appellant in relation to the events of 9 May 1996, but found that it did not follow inevitably that the appellant was intentionally dishonest in his evidence. His Honour concluded that the appellant had memory problems since 9 May 1996 which had affected his ability to recall the events of the day.
24 His Honour had reached a number of important conclusions:
(1) At times, pit technicians at the respondent's Marvel Loch operation did mark walls of pits by pouring lime over the
(Page 12)
- edge of walls, notwithstanding Mr Loreck's evidence that it would be foolish to do so.
- (2) Mr Loreck gave an instruction to the appellant to stay with the excavator on the pit floor on 9 May 1996 because he did not want the appellant to go to the top of the face and pour lime over the edge.
(3) Mr Loreck felt there was a possibility that he might do this if he was not given an instruction to the contrary.
(4) The recollection of Mr Loreck as to the sequence of events that occurred on 9 May 1996 were more likely to be correct than the version given by the appellant.
(5) The evidence of Mr Loreck that he told the appellant to remain with the digger on the pit floor was accepted.
25 The learned trial Judge concluded that, on all the evidence, the appellant had gone to the top of the pit wall to pour lime over the edge and that his injuries were not inconsistent with a fall of approximately five metres. These injuries were thus suffered as a result of the appellant falling from the edge of the berm.
Conclusions of the Learned Trial Judge
26 Having made the preceding findings, the learned trial Judge turned to the question whether the appellant's injuries were suffered as a result of a breach of the duty of care owed to him by the respondent. His Honour correctly pointed out that the respondent owed a duty of care to the appellant to avoid exposing him to unnecessary risks of injury and that duty required the respondent to provide a safe system of work for him and to have regard to the possibility of inadvertence or negligence on his part. Reference was made to Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 and McLean v Tedman (1984) 155 CLR 306. The classic formulation of the duty of care in Hamilton v Nuroof, which has stood the test of time for half a century, was that stated by Dixon CJ and Kitto J at 25:
"The duty, to whomever it falls to discharge it, is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an
(Page 13)
- employer must naturally vary with the circumstances of each case."
27 The obligation to provide a safe system of work was expanded in McLean v Tedman by Mason, Wilson, Brennan and Dawson JJ at 313 as follow:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
28 The learned trial Judge concluded that it was clearly dangerous for the appellant to stand on the top of a five-metre high pit wall to pour lime over the edge. It was also unnecessary to do so because the wall could be marked to a height of approximately two and a half metres from the pit floor and this would give adequate directions to the excavator operator.
29 His Honour concluded that if the respondent had required or permitted the appellant to go to the top of the pit wall to pour lime over the edge, then it would have been in breach of its duty of care to him. However, his Honour's conclusion was that the instruction given by Mr Loreck to the appellant was to remain on the pit floor. His Honour concluded:
"Mr Suleski fell as a result of his disregard of that instruction. His injuries were suffered not as a result of any failure by Sons of Gwalia to satisfy its duty of care to him but as a result of his failure to follow the instruction that had been given to him by Mr Loreck. I conclude therefore that Mr Suleski has not established any cause of action against Sons of Gwalia."
Grounds of Appeal
Ground 1
30 In support of this ground of appeal, counsel for the appellant sought to adduce evidence before this Court. That evidence consisted of an accident investigation report completed by Mr Loreck, a copy of a letter
(Page 14)
- from Mr Loreck to an SGIO assessor, a statutory declaration of Mr Loreck made 14 June 1996 and a transcript of evidence of Mr Loreck before the Director of Conciliation and Review on 10 March 2000.
31 The first two documents were exhibits 36 and 37 at the hearing and so they are already in evidence. No leave was required to put them before this Court.
32 The statutory declaration of Mr Loreck was referred to by counsel for the appellant in his submissions to the learned trial Judge when he sought to have Mr Loreck declared a hostile witness. Although the learned trial Judge does not appear to have looked at the document, this Court was entitled to and has done so. The transcript of evidence before the Directorate of Conciliation and Review was never put before the learned trial Judge, nor was it referred to in the application to declare Mr Loreck a hostile witness. There is no basis upon which it could be put before this Court.
33 Reference to the accident investigation report completed by Mr Loreck reveals that he reported to his employer on the circumstances of the accident in which the appellant was injured. He said:
"No one witnessed the fall of 5 metres. I, Andrew Loreck, knew of the fall when I met up with Boris on the pit floor. He was walking near his vehicle holding his left thigh. He said he had fallen from the 335 RL. He appeared to have no major injurys [sic] that were obvious, though he was shaken by the fall. After a quick conversation with the shift boss who was 15m away it was decided I would drive Boris to the medical centre. I notified the pit superintendent before leaving site."
34 A question on the form which asked for an opinion as to what act/failure to act or conditions contributed most directly to the accident was not completed. A question which asked the writer to indicate what steps could be taken to prevent similar occurrence was answered as follows:
"Ensure personnel are aware of correct procedure climbing up and down 5 metre faces."
35 The faxed letter to the SGIO assessor was dated "Friday June 1996" and in it Mr Loreck expressed an opinion as to what may have happened on the day in question. He said:
(Page 15)
- "The 335RL where is it presumed Boris fell from, represents the northern end of the Sunbeam pit which is being currently mined.
As part of Boris's duty he is required to mark out the orebody with lime.
When I found Boris on the pit floor he told me he had fallen. Since the accident a serviceman told me he observed Boris on the pit floor brushing himself down with lime before I came and found him. The serviceman did not see Boris fall and he was unaware Boris had fallen at the time of the accident. Given this information it is reasonable to assume Boris fell from the 335 RL and was covered in lime during the fall.
Below is a sketch in cross section illustrating what I think happened based on the fact that Boris told me he fell and a serviceman saw him covered in lime."
- Below the last paragraph was a sketch of the "presumed path of fall" of the appellant.
36 The statutory declaration of Mr Loreck contain (in pars 10 - 13) the following:
"I later saw BORIS around 10.00 a.m. where he was working at this task. He had almost completed hammering the stakes in.
I asked him to supervise the digging of batters in the open pit. I asked him to work with the digger operator.
I expected BORIS to work from the pit floor. I did not instruct him to climb the batter or work from an elevated point within the pit.
I did not see BORIS again until around 11.05 a.m. when I went to the floor of the open pit."
37 A comprehensive discourse on the subject of "hostile witnesses" is contained in Cross On Evidence, 7th Australian ed, J D Heydon (at 17375). The general principle is that a trial Judge may allow the examination-in-chief of a hostile witness to be conducted in the manner of a cross-examination to the extent to which the Judge considers necessary for the purpose of doing justice. The discretion of a trial Judge in determining whether or not a witness is hostile is a discretion that can be
(Page 16)
- interfered with on appeal, although not lightly. Indeed, it has been held that there must be exceptional circumstances to justify an appeal on the ground that a witness had been wrongly held to be hostile: R v Williams (1913) 8 Cr App R 133 per Alverstone LCJ at 139.
38 Although it has been said that the Judge's discretion is to be principally guided by the behaviour of a witness and his/her language in the witness box, and demeanour alone may be relied on in declaring a witness hostile, this does not exclude a Judge from taking other means to inform himself/herself whether the witness is hostile. Thus, a witness can be declared hostile on the basis of prior inconsistent statements which a witness denies. A witness is not hostile, however, merely because the testimony of the witness is against the party calling the witness. As has been pointed out, a party in a civil case may call the opposing party and such a witness is not necessarily hostile: Price v Manning (1889) 42 Ch D 372. The proper test on hostility is expressed in Cross on Evidence (at 17375) to "not depend on hostility or any other particular motive but on the incapacity of the party calling a witness to elicit the truth by non-leading questions since the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth".
39 A witness may be declared hostile as late as re-examination. An example of this was Willis v Magistrate's Court (1996) 89 A Crim R 273 where Smith J said (at 279):
"Counsel for Mr Willis did not refer me to any authority which said that it is not open to a party who has called a witness to apply to have that witness declared hostile during re-examination and any such limitation would, in my view, be contrary to principle. The re-examination itself would be confined, however, to matters arising out of cross-examination: see, eg, R v Beezley (1830) 4 C & P 220."
- It was, therefore, open in the circumstances for the learned trial Judge to declare Mr Loreck a hostile witness if he was satisfied that the interests of justice required him to do so.
40 However, when it came to consideration of the merits, it was apparent that there was nothing that Mr Loreck had said in any of the documents to which I have referred which was inconsistent with the testimony he had given before the learned trial Judge. The contents of the accident investigation report were merely an attempt by Mr Loreck to inform his employer as to what he believed had happened to the appellant. The letter to the SGIO assessor was Mr Loreck's conclusion as to what
(Page 17)
- must have happened, and the statutory declaration made 14 June 1996 contained nothing which was inconsistent with the testimony given at trial. At its highest, it omitted some matters which were the subject of cross-examination at the trial. In essence, however, it reiterated that Mr Loreck's instructions to the appellant were to supervise digging of batters in the open pit and to remain on the pit floor with the digger. The statement in par 12 that Mr Loreck did not instruct the appellant to climb the batter or work from an elevated point within the pit was consistent with what he had said at trial.
41 In the circumstances, I can find no basis upon which it can be said that the learned trial Judge erred in failing to grant leave to counsel for the appellant to treat Mr Loreck as a hostile witness. His Honour relied upon the fact that there was nothing in Mr Loreck's demeanour to indicate that he was a hostile witness and no inconsistency at any prior written statement to which reference had been made which suggested hostility.
42 Given that it would have to be exceptional to reverse a trial Judge's ruling on the issue of hostility of a witness, and because there has been nothing shown in the written material which constituted an inconsistency between what had previously been said and what was said in court, I am unable to conclude that the learned trial Judge was in error in any way. I would, therefore, dismiss the first ground of appeal.
Ground 2
43 This ground relies upon the material contained in exhibits 36 and 37 to which I have referred. It contends that the learned trial Judge failed to consider, or properly consider, this evidence as tending to contradict the assertion of Mr Loreck that he had told the appellant to stay on the pit floor and not go onto the berm.
44 I have already pointed out that Mr Loreck did not say that he told the appellant not to go onto the berm. He simply said that he had told him to stay on the pit floor with the excavator operator. As I see it, nothing in exhibits 36 or 37 suggests anything to the contrary. As I have already pointed out, these documents contain attempts on Mr Loreck's part to explain what may have happened to the appellant. It is true that Mr Loreck does not say in these documents that he instructed the appellant to stay on the pit floor. This is the point that counsel for the appellant makes. However, the purpose for which the documents were prepared must be considered. They were preliminary accident reports and questions of exactly what had or had not been said by Mr Loreck to the appellant were not in issue. The learned trial Judge may not have
(Page 18)
- analysed in any detail the contents of these documents, but in my opinion he was not obliged to do so. I can see no substance in ground 2.
Ground 3
45 This ground is really a repetition of the preceding ground. To the extent that it contends that the learned trial Judge did not consider the totality of the evidence, it is in error. The learned trial Judge did consider the totality of the evidence. Exhibits 36 and 37 were clearly before him. There was no obligation on his part to make specific reference to them. His Honour saw the essential conflict as being between the appellant on the one hand, and Mr Loreck on the other, in relation to the instructions that were or were not given on the morning in question. His Honour preferred the evidence of Mr Loreck. Mr Loreck had been called by counsel for the appellant. His evidence was part of the appellant's case. It was not the case that his Honour relied "solely upon the appellant's acknowledged difficulties remembering what had occurred" in reaching the conclusions that he did. His Honour simply concluded that the appellant had problems with his memory which had affected his ability to recall the events of the day in question. He also found him to be a witness who exaggerated generally. A clear finding was made that Mr Loreck had given an instruction to the appellant to stay with the excavator because Mr Loreck did not want the appellant to go to the top of the face. It was not a finding that Mr Loreck had told the appellant not to go to the top of the rock face. In these circumstances, I can see no substance in ground 3.
Ground 4
46 This ground contends that if (which is denied) the appellant went onto the berm contrary to the instructions of Mr Loreck, the learned trial Judge failed to consider certain things. I have already pointed out that it is not the case that the learned trial Judge found that Mr Loreck had instructed the appellant not to go onto the berm. He had simply instructed him to stay on the pit floor.
47 The learned trial Judge considered whether there had been any breach of duty of care on the part of the respondent in the circumstances in which the appellant went of his own motion to the top of the pit wall to pour lime over its edge. His Honour concluded that the appellant had disregarded an instruction to remain on the pit floor and his injuries were thus suffered not as a result of any failure by the respondent to satisfy its duty of care to him, but as a result of his failure to follow the instruction that had been given to him by Mr Loreck. This conclusion was, in my view, open to the learned trial Judge. Instructions had been given by
(Page 19)
- Mr Loreck (on behalf of the respondent) to the appellant as to how he was to perform his work on the day in question. Measures had thus been taken to protect the appellant from any dangers which may have existed at the workplace: see McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 per Gibbs CJ at 7.
48 It is unnecessary to consider the question of contributory negligence because there can be no challenge to the learned trial Judge's conclusion on the question of negligence.
Ground 5
49 This ground relates to the question of costs. The appellant makes the novel submission that, because the respondents succeeded only on some issues, there should have been an adjustment in relation to the award of costs. There is a simple answer to this ground. The appellant failed in his action. It was dismissed. The respondent thus succeeded on the question of its liability to pay damages to the appellant. Although a provisional award of damages was made, the respondent was obliged to contest the issue in case it lost the issue of liability. To the extent that it incurred costs in doing so, it was entitled to be indemnified in costs.
50 I am unable to see any substance in this ground of appeal.
51 It follows that, in my view, the appeal should be dismissed. It is unnecessary in the circumstances to consider the respondent's notice of contention and notice of cross-appeal.
0
30
1