Threlfall v TBS Building Services Pty Ltd, Kane Constructions Pty Ltd, Port Phillip City Council and 350Q BBS Pty Ltd (Ruling No 2)

[2010] VCC 1318

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES – COMPENSATION

GENERAL DIVISION

Case No. CI-09-05565

PETER ANTHONY THRELFALL	Plaintiff
v
TBS BUILDING SERVICES PTY LTD	First Defendant
and
KANE CONSTRUCTIONS PTY LTD	Second Defendant
and
PORT PHILLIP CITY COUNCIL	Third Defendant
and
350Q BBS PTY LTD	Fourth Defendant
(formerly BURNS BRIDGE SERVICES PTY LTD)
and
LUMLEY GENERAL INSURANCE LIMITED	Third Party

---

JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Warrnambool
DATE OF HEARING:	23, 24, 25, 26, 27, 30, 31 August and 1, 2, 3, 6 September 2010
DATE OF RULING:	7 September 2010
CASE MAY BE CITED AS:	Threlfall v TBS Building Services Pty Ltd, Kane Constructions Pty Ltd, Port Phillip City Council and 350Q BBS Pty Ltd (Ruling No 2)
MEDIUM NEUTRAL	[2010] VCC 1318
CITATION:

RULING
---

Catchwords: Final address to the Jury – Matters not put in cross-examination – Rule in

Browne v Dunn.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N R Bird with	Maddens Lawyers
Mr J J Fitzpatrick
For the First Defendant	Mr P A Scanlon QC with	Lander & Rogers
Mr P B Jens
For the Second Defendant	Mr D R Myers with	Wotton & Kearney
Mr D McWilliams
For the Third Defendant	Mr T J Casey QC with	DLA Phillips Fox
Mr A J Fraatz
For the Fourth Defendant	Mr R W Dyer	Moray & Agnew
For the Third Party	Mr McWilliams
HIS HONOUR:

1          This trial is now at the stage of address by counsel to the jury.

2           Mr Jens, on behalf of the first defendant, has raised aspects of the addresses by counsel for the second, third and fourth defendants about which he submits comment ought be made by me to the jury. In essence, he says that an aspect of the address by each of those defendants was inappropriate given the failure to put the detail of the matter to the relevant witness in cross- examination.

3          The submission in relation to the address by Mr Dyer, on behalf of the fourth defendant, concerns what he said to the jury about Mr John Tidey, the director of the first defendant and his completion of a JSA[1]. This was a document filled out by Mr Tidey relating to the task being undertaken by the plaintiff at the time he suffered injury. According to Mr Tidey’s evidence:

[1]             Job Safety Analysis – Exhibit D2 C (also referred to as a Job Safety Assessment)

• He received a telephone call from someone at the Council (he was unable to identify who) requesting that he arrange for workers to attend at the Council premises to complete work in the gallery area[2]. His evidence was that he was advised by the Council representative that all the “paperwork” had been done. He stated that he asked as to the particular task to be undertaken and as a result of the advice given, completed the JSA over the telephone.

• He did not attend the Town Hall premises and make an inspection himself.

• According to the document, it was completed on 21 November 2007, the day of the plaintiff’s accident and describes the activity being undertaken as “take plasterboard into site”. Under “hazards”, is stated “no visible hazards”. Mr Tidey said in evidence this was what he was told by the Council employee.

• The JSA was completed before the plaintiff’s injury.

[2]             The gallery refers to an area of the Council building marked in yellow in Exhibit D2 J

4          That part of the address of Mr Dyer on behalf of the fourth defendant which was the subject of complaint by Mr Jens was as follows:[3]

“The employer has a duty that it can’t delegate and in the circumstances of this case to suggest to you, while not calling any of its own evidence, that a document dated 21 November 2007, and this is the JSA, had to be completed because a phone call was made by the Council on that day, when you have heard from Mr Mirams that he was there for some days at least earlier, and it was done over the phone, it beggars belief. It just, in my submission, didn’t happen, it’s something that’s been done to protect the position of TBS vis-à-vis what they presumed were going to be the consequences of having an unsupervised, undirected worker suffer a serious injury whilst he was employed on another site.” (emphasis added)

[3]             T823, L2

5          Likewise, Mr Jens is critical of the address of Mr Casey on the same point. Mr Casey submitted to the jury:[4]

“He [John Tidey] comes up with a fanciful story about someone at the Council phoning him on the morning of the accident and before it happened. Phoned him out of the blue to request him to fill in a JSA. This person, whom he can’t identify, told him to write in the JSA that there were no hazards. Now remember, he says this is before the accident. So, he faithfully filled in ‘no hazards’ on the form. I want you to think about this piece of evidence because it will affect your decision on whether Mr Tidey is a man upon whose evidence you can generally rely. Firstly, just think of the coincidence of an employee of a Council phoning out of the blue on the morning of the accident requesting a JSA. It was Mr Tidey who had ordered the delivery of the plaster sheets. It is highly unlikely that any employee of the Council would know that plaster sheets were going to be delivered to site that day. Secondly, why would you raise a JSA for the task of carrying sheets of plaster from the front of the building into the gallery when, for all other aspects of the work, no JSA was written or provided? Why just do it for what happens to be the relevant circumstances leading to the accident and not otherwise? It’s clear, members of the jury, that this was filled in by Mr Tidey after the accident. It was filled in by him in an endeavour to cover up for his own failures. If you are satisfied with that, then Mr Tidey has sought to mislead you for his own purposes. ….” (emphasis added)

[4]             T838, L27

6          Further, Mr Jens submits the address of Mr Myers on behalf of the second defendant is to be criticised. Mr Myers said to the jury:[5]

“So call on Mr Tidey, in you go into the witness box, what’s your name? I mean gee whiz, he started lying pretty much immediately, you know. Terrible word, isn’t it? … It’s all here. Inventing, so we get the phantom phone call, suddenly there’s a phantom phone call, ‘a bloke rang me’, you needed a bit of an urgent JSA. No problem just do it over the phone. Yes, right, no hazards. … .” (emphasis added)

[5]             T856, L22

7          The criticism by Mr Jens in respect of these aspects of the various addresses is that it was never put to Mr Tidey in the course of cross-examination that the phone call from the Council on 21 November 2007 was a fabrication nor that Mr Tidey had completed this JSA after the event in order to protect the position of the first defendant. He submits the rule in Browne v Dunn[6] requires that in order to go to the jury with these submissions, it was necessary to first put the matters to Mr Tidey and give him the opportunity to respond. According to Mr Jens, that was never done by any of the defendants.

[6] (1893) 6 R 67

8          In response, Mr Casey, for the third defendant stated that any obligation he had was satisfied by his cross-examination of Mr Tidey at Transcript pages 478 to 485. In particular, he referred to a passage[7] as follows:

[7]             T483, L17

“Q:	Who is responsible, you wrote what?---
A:	Yes, John Tidey, yes.
Q:	So what you’re saying is that on this morning, out of the blue, you get the phone call from the Council and in that phone call you are invited to write ‘no visible hazard’, is that what you’re telling the jury?---
A:	Absolutely.
Q:	You just complied, you followed it through?---
A:	When you’ve got men working for a Council the size of the City of Port Phillip you comply, you don’t ask questions, you send the men down. This job was an urgent one and was over the scheduled hourly rate but I complied.”

9          While the general tenor of this aspect cross-examination was incredulity, it was not put to Mr Tidey the phone call was a fabrication and the JSA was completed after the event.

10        On behalf of the second defendant, it was put by Mr McWilliams that given he had called Mr Tidey, it was not possible to cross-examine him and in particular, not possible given the constraints of non leading questions, to suggest to Mr Tidey that he was lying.

11        Likewise, Mr Dyer submitted that any obligation he had was met by his cross- examination. He submitted this was clear from Transcript page 508 to 511. In particular, he asked:[8]

[8]             T511, L12

“Q:	This Job Safety Analysis worksheet, if the work in that gallery area had gone on for some days prior to 21 November 2007, does it not strike you as unusual that on that day someone would telephone you from the Council and ask you to prepare a Job Safety Analysis?---
A:	As I said earlier, it’s very odd … .”

12        Again the cross-examination carried a note of incredulity. At that point I interrupted Mr Dyer, suggesting that the area of cross-examination in respect of the JSA had been covered by Mr Casey, although saying that if he had a different aspect, it could be put to the witness.

13        The first matter to be determined is the obligation of counsel and in putting matters which had not been the subject of specific challenge in cross- examination. In my view, there is little doubt that the law requires that if counsel is to address a jury on the basis that evidence of a particular witness had been made up, falsified or concocted, that that allegation be put in cross- examination. That is the clear effect of the rule in Browne v Dunn.[9] It is a rule of fairness and is intended to give the witness an opportunity to deny the allegation.

[9]             See further, Baulch v Lyndoch Warrnambool Inc [2010] VSCA 30, at paras 13-25

14        The real question in issue is whether or not the substance of what was said in addresses was in fact put to the witness, Tidey, in the course of cross- examination.

15        The address of Mr Dyer, on behalf of the fourth defendant, was to the effect that at least the phone call said to have been received by Mr Tidey “didn’t happen”. It is possible the address could be further interpreted to say that the completion of the JSA was only done after he learned of the incident and because of it.

16        In my view, these matters were not covered by Mr Dyer in the course of cross- examination. Certainly various aspects about the JSA were put, but nowhere was it suggested that the telephone call did not happen, alternatively, the JSA was not completed until after the event.

17        Likewise, Mr Casey, on behalf of the third defendant, submitted to the jury that Mr Tidey completed the JSA after the accident and filled it out in an endeavour to cover up his own failures. True it is Mr Casey queried various aspects of Mr Tidey’s evidence. His cross-examination was in part that the story being told by Mr Tidey was fanciful. But the particular allegation contained in the address was not specifically put.

18        Mr Myers, on behalf of the second defendant, suggested of Mr Tidey that “he started lying pretty much immediately”. He described the telephone call from the Council as a “phantom phone call”. Again, I am not satisfied that this was specifically put to Mr Tidey . I accept this would have been difficult as Mr McWilliams was able only to lead evidence from the witness.

19        Therefore in respect of the address of each of counsel for the fourth, third and

5   RULING

second defendants, on this particular aspect of their address there was a breach of the rule in Browne v Dunn. In my view, it is no solace to the second defendant that it called Mr Tidey and was unable to cross-examine him on the point.

20        In making these comments, I acknowledge common law injury claims such as this exist in a robust jurisdiction. Counsel, quite properly, in the course of persuading a jury to a particular point of view inject colour and enthusiasm into addresses. Considerable theatrical licence is granted. There is nothing improper in suggesting to a jury that a particular witness ought not to be believed for a range of reasons including:

• the demeanour of the witness;

• the failure of the witness to responsively answer questions;

• inconsistencies in the witnesses’ evidence;

• the improbability of a certain event occurring in the circumstances claimed

and for many other reasons.

21        Nonetheless, something as significant as the invention of a telephone call and the quite improper concoction of a document after an injury to protect the position of the first defendant ought specifically to have been put.

22        In these circumstances, I propose to charge the jury as to the following:

• That the matters put in address were not put specifically to Mr Tidey and he was denied the opportunity to refute the allegations.

• Given these matters had not been put, that aspect of Mr Tidey’s evidence that he did receive a telephone call from the Council as a result of which he completed the JSA were not contradicted.

6   RULING

• That the jury may have regard to this failure to challenge Mr Tidey in determining whether or not to accept this aspect of his evidence.[10]

[10] See Bulstrode v Trimble [1970] VR 840 at 848

- - -

1   RULING

2   RULING

3   RULING

4   RULING

7   RULING