Turner v Norwalk Precast Burial Systems Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0117

GARTH TURNER	Applicant
v
NORWALK PRECAST BURIAL SYSTEMS PTY LTD	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2025
DATE OF JUDGMENT:	6 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 94
JUDGMENT APPEALED FROM:	[2023] VCC 1843 (Judge Pillay)

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PRACTICE AND PROCEDURE – Procedural fairness – Self-represented litigant – Nature of duty owed by trial judge to self-represented litigant – Respondent succeeded at trial on no case submission – Where applicant evinced misconception that he was entitled to adduce further evidence through respondent’s witnesses – Failure of trial judge to appropriately correct misconception – Appeal allowed.

PRACTICE AND PROCEDURE – Action for negligence – Where respondent succeeded on no case submission because applicant unable to establish factual causation under s 51(1)(a) of the Wrongs Act 1958 – Where s 51(2) may have provided alternative means of proving causation – Where failure to explain the terms of s 51(2) – Appeal allowed.

TORTS – Negligence – Causation – Effect of s 51(2) of Wrongs Act 1958 – Meaning of ‘appropriate case’ discussed.

Evidence Act 2008, ss 37, 38; Wrongs Act 1958, s 51.

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Doughty-Cowell v Kyriazis [2018] VSCA 216; Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68; Powney v Kerang and District Health (2014) 43 VR 506; Roberts v Harkness (2018) 57 VR 334; Strong v Woolworths Ltd (2012) 246 CLR 182; Trkulja v Markovic [2015] VSCA 298, discussed.

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Counsel
Applicant:		Mr JA Ribbands
Respondent:		Mr S Moloney
Solicitors
Applicant:	(Victorian Bar pro bono scheme)
Respondent:	Barry Nilsson Lawyers

BEACH JA
KENNEDY JA
J FORREST AJA:

The applicant arranged for the installation of a septic tank system on his property in Seaton. He alleges that this system was missing a part — variously described as an ‘aerator arm’, or ‘aerator shaft’ — which caused him to suffer recurrent Helicobacter Pylori (‘HP’) infections, sickness, loss and damage.
The applicant brought a case in negligence and contract against the manufacturer of the septic tank system in the County Court. He alleged that the system was improperly installed and maintained. By the time the matter came to trial, the applicant was self-represented. He gave evidence himself. He also adduced evidence from his friend, Ms Berry, who assisted him at the trial. However, at the conclusion of this evidence, the respondent made a no case submission on the basis that the applicant could not prove his case in respect of causation. More particularly, that he could not prove that the fitting of the aerator arm would have averted his injury.
The judge upheld the no case submission and gave judgment for the respondent.
The applicant now seeks leave to appeal the judge’s decision on the basis of two proposed grounds:
(1)the judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial;
(3)the judge erred in ruling in favour of the respondent’s no case submission:
(a)without having considered whether it was an appropriate case to invoke s 51(2) Wrongs Act 1958 (‘Wrongs Act’), as is required by the Act;
(b)without providing the applicant, as an unrepresented litigant, the opportunity of proving causation by an alternative means under s 51(2) if factual causation could not be established.[1]

Background[2]

[1]The applicant originally advanced a further proposed ground (2) that the judge improperly applied the wrong test in considering the no case submission because the test should have been applied more favourably to the Applicant as an unrepresented litigant. However, this was abandoned at the hearing of the application. How proposed ground 3 came to be advanced is described later in these Reasons.

[2]This summary is based on the background provided by the judge in Turner v Norwalk Precast Burial Systems Pty Ltd [2023] VCC 1843, [2]–[14] (‘Reasons’). The judge generally accepted the applicant’s evidence for the purposes of the no case submission.

The applicant was born in August 1948. He first worked as an apprentice carpenter and, having qualified in that trade, worked thereafter in house construction. In addition to working as a sub-contractor, he also built houses on his own account for the purposes of resale for profit.
Prior to 2012, the applicant was in good health and engaged in full-time work.
In October 2003, the applicant purchased land at 161 Johnson Lane, Seaton (‘the site’). He built a barn and stored tools on the site, but did not live there.
On 14 March 2008, the applicant applied to the local council to install a septic tank system manufactured by Taylex Pty Ltd[3] (‘the septic system’) on the site. He engaged Leigh Gordon Bros Pty Ltd[4] to purchase and install the septic system.
[3]Taylex Pty Ltd was subsequently bought out by Norwalk Precast Burial Systems Pty Ltd (the respondent).
[4]The judge accepted that this entity was the authorised representative of the respondent: Reasons, [5].
On 7 August 2008, the application was granted. On 15 October 2008, Mr Leigh Gordon signed and provided a licensed plumber’s certificate of compliance in respect of the installation of the septic system and the council subsequently issued an approval for the use of the system. As the judge described it:
With the approval, council set out the site for the installation of the septic tanks and an area known as the effluent dispersal area. To explain this very briefly and broadly at this stage: waste water flushed from the house, being from the toilet, shower, washing machine and sinks, would flow out of the house via a drainage pipe to the Taylex unit located at the rear of the property. After going through a process in the Taylex unit, it would then be pumped through pipes which ran to an area adjacent to the house and which were covered by grass.[5]
[5]Reasons, [5].
During the period 2008–2011 the applicant did not live at the site as there was no fully constructed house there. However, he contacted Mr Gordon on numerous occasions to attend the site to perform maintenance on the septic system. This did not occur, and Mr Gordon advised the applicant in 2011 that Leigh Gordon Bros Pty Ltd had ceased to operate.
The applicant subsequently contacted Mr Andrew Taylor, a person employed by the respondent, who attended the site on 18 October 2011. Mr Taylor told the applicant that an aerator arm was missing from the septic system. The applicant’s evidence was that Mr Taylor told him that he would arrange for the aerator arm to be sent to another tradesperson who would then come and install it. The applicant believed that this would be done shortly after Mr Taylor’s visit.
However, an aerator arm was not installed and the applicant alleges that the septic system was not operating as it ought to have.
The applicant began to feel sick in about 2012, suffering symptoms of reflux. Things worsened during 2013 as he obtained a certificate of occupancy and began living at the site on a full-time basis. He required hospitalisation on a number of occasions during 2013 and 2014 and returned a positive test for HP. HP is a bacteria which is spread by the faecal/oral route.
The applicant ceased work in about 2013 and has not worked since that time. He required antibiotic treatments for persistent HP infections throughout 2014, 2015 and 2016.
On the recommendation of another tradesman, the applicant contacted Mr Robert Shaw from ‘H2O Solutions’, in late 2016. The applicant’s evidence was that Mr Shaw told him that he was aware of ‘the problem’, as he had been sent the aerator arm some time ago by the respondent, but that he had not got around to installing it. The applicant picked up the aerator arm from Mr Shaw and installed it himself, with the assistance of telephone instructions from Mr Shaw.
The applicant’s case was that his symptoms lessened during 2017, but that he continued to require courses of antibiotics to finally clear the HP from his system. The HP infection was finally cleared in April 2019 after seven bouts of antibiotics. The applicant has not been troubled by a recurrent HP infection since, although he continues to suffer other symptoms. He sold the site in 2019 and no longer lives there.
In October 2018, Slater and Gordon filed a proceeding on behalf of the applicant against the respondent alleging the improper installation and maintenance of the septic system. The applicant’s case was brought in negligence and, alternatively, in contract. On 22 April 2021, Slater and Gordon ceased to act for the applicant.
By orders made on 15 November 2022, Judge Tran set the proceeding down for trial commencing on 15 September 2023. She also ordered the respondent to file and serve a draft statement of issues which was subsequently filed. The issues identified included whether any breach of contract or duty of care by the respondent caused loss and damage to the applicant.
The trial was subsequently conducted on 15, 18, 19, 20 and 21 September 2023. The applicant remained self-represented, but, as indicated already, was assisted by his friend, Ms Berry. The respondent’s counsel was Mr Makowski.
Given the applicant alleged that he was denied procedural fairness, it is necessary to outline, in some detail, the course of the trial.

Course of the trial

The judge raised at the outset whether the applicant was going to give evidence and, upon clarifying that he was, he told him that he needed to give ‘all [his] evidence’ which needed to cover ‘all aspects’ of his case. The judge explained the ‘ground rules’, indicating that the applicant would give evidence first, then he would be cross-examined by Mr Makowski, and that he would then be re-examined. The applicant could then make a decision about whether Ms Berry would give evidence and should also tell the judge what documents he wished to tender. After that, his case would ‘conclude’ and Mr Makowski’s case ‘will begin’. He added that it was ‘entirely up to him [Mr Makowski] how he runs his case. We’ll see.’
After proceeding to explain the concept of opening submissions, the judge asked Mr Makowski if there was anything that should be elaborated upon so that the applicant could better understand the process. Mr Makowski replied ‘no’, but ensured that the judge had the statement of agreed issues. The judge then asked Mr Makowski: ‘you don’t have to commit to this, but if you were to go into evidence, how many witnesses do you anticipate calling?’ Mr Makowski replied that he had ‘potentially two’, being Mr John Taylor and his son, Andrew Taylor who had many dealings with the applicant and inspected the septic system in October 2011. As mentioned earlier, it was Mr Andrew Taylor who, on the applicant’s account, failed to install (or arrange for the installation of) the aerator arm of the system.
Ms Berry then made an opening on behalf of the applicant.
At the completion of this opening, the judge invited Mr Makowski to make a statement, but he indicated that he was not going to say anything at that stage and that he would prefer to do an opening at the close of the applicant’s case. When pressed as to what the central issues in dispute were, he identified a number, including the content of the duty and causation.
The applicant then proceeded to give evidence, with the assistance of the judge. This assistance included the provision of transcript and the statement of issues, as well as the statement of claim. The applicant was then cross-examined.
Following the cross-examination, there was an exchange between the judge and the applicant about his imminent re-examination during which time the judge inquired about whether Ms Berry was available. In the course of dealing with this matter, the applicant indicated that he had ‘one other question’. He was asked to stand up and the following exchange occurred (‘the first exchange’):
MR TURNER: Was about the two witnesses on your – when are they – they will likely to be called?
HIS HONOUR: Well, at this stage, Mr Turner, we’re uncertain if there will be any evidence from the [respondent]. I’ll wait to hear about that. But your case has to finish first before Mr Makowski makes a decision whether he calls anyone to give evidence.
MR TURNER: Is that right, Your Honour? Yeah.
HIS HONOUR: It is.
MR TURNER: Yep, yep. No – no problem, because – yes, yes.
HIS HONOUR: So we’ll just wait and see what happens when your case finishes.
MR TURNER: Yes, yes, Your Honour, no problems.
HIS HONOUR: All right, thank you.
As will be seen, below, this exchange is one of two passages upon which the respondent places particular reliance.
Ms Berry was then called and gave evidence for a relatively short time.
Once Ms Berry withdrew from the witness box, the judge stated to the applicant that it was his case and he had to ‘prove every element of it’. The judge indicated that he wanted the applicant to be absolutely certain that Ms Berry could not give any other relevant evidence and therefore gave him overnight to consider this issue.
Following this discussion, the judge also addressed Mr Makowski and said that he did not need to hear ‘a final position’ from him at that point, but asked ‘how does tomorrow look?’ Mr Makowski’s response was that they would continue going through tendering of documents and objections, see what Ms Berry said, and that he would ‘prefer to reserve [his] position until the [applicant’s] case is closed’. The judge then adjourned the court.
The following day, the applicant sought to ask only one further question of Ms Berry who was recalled, at which point the applicant was asked if that was the only evidence he wished to call from Ms Berry. The following exchange then occurred (‘the second exchange’):
MR TURNER: Yes, Your Honour. The – my cross-examination of the [respondent’s] witnesses, all the relevant information is in there, because the – the rest of it’s all only hearsay. We’ve decided just to stick with the facts that we can bring to the court.
HIS HONOUR: All right, Mr Turner. As you know, you are a self-represented litigant.
MR TURNER: Yes.
HIS HONOUR: And while I can assist you to identify the issues in the case, I cannot step into your shoes and conduct your case for you.
MR TURNER: Yep.
HIS HONOUR: So, once again, I would remind you, it is your case to prove - -
MR TURNER: Yes.
HIS HONOUR: - - - all the elements in your cause of action. One of the elements in your cause of action relates to what's called your damages.
MR TURNER: Yes.
HIS HONOUR: Your compensation, and that is based around your pain and suffering.
MR TURNER: Yes.
HIS HONOUR: Now, I advised you about that on Friday, I gave you time yesterday to consider whether you could call evidence from Ms Berry that went to any of the issues in dispute in the statement of claim and in – set out in the statement of issues.
MR TURNER: Yes.
HIS HONOUR: I’ve given you that time. I’ve asked you again - - -
MR TURNER: Yes.
HIS HONOUR: - - - whether or not you want to call any evidence from Ms Berry, and you now indicated to me you don’t wish to call any further evidence from her?
MR TURNER: Yeah, no, Your Honour. There – the evidence that I’ve presented is – is the only evidence that we’ve got. I think there's only one point left – left to prove.
HIS HONOUR: Well - - -
MR TURNER: And – and – and that’s because it – it – it with – and that – in the opposition, and when I can cross-examine then, or there’s a list of – of offence. I can’t give you any more than that, because the – the doctor’s evidence is the – three doctors and Dr Johnstone, his report, on me.
The judge then indicated that he was only speaking to Ms Berry’s evidence. There was then no further evidence adduced from Ms Berry. Instead, a number of further documents were tendered, and the applicant was briefly recalled in order to effect such tender. The documents included medical reports of three gastroenterologists: Associate Professor Paul Desmond, Dr John Coleman and Dr Andrew Jakobovits.
The judge then gave the applicant ‘one last chance’ to tell him if there was any further evidence he wished to call. A number of documents were discussed. At the conclusion of that discussion, the applicant indicated that those documents were all that he wanted to add. The judge then stated:
All right, so that means once you’ve put all of your evidence in, I will ask you a formal question, which is, ‘Have you closed your case, Mr Turner?’ And when you say to me, ‘Yes, I have’, that means that all the evidence in your case is in and you will not be permitted to call further evidence, unless during the course of the [respondent’s] case something comes up and you wish to put additional documents to them which you can prove through one of those witnesses. All right?
The applicant responded, ‘yes’, whereupon the judge said that once his case was closed it was an indication that the evidence that he had called was sufficient to succeed in his case. The applicant then agreed that he was ready to close his case, and the judge stated that he marked his case as closed.
The judge then turned to Mr Makowski, asking him what was ‘the situation’, whereupon Mr Makowski immediately responded (without taking instructions, or asking for time) that the respondent ‘proposes to make a no case submission’. He also indicated that he was content to be put to his election.
The judge then explained to the applicant that the respondent had applied to proceed to a ‘no case’ submission. By that, the respondent was saying that the applicant had not made out the elements required to be successful so that it was pointless to go on and that the respondent was ‘not obliged to call any evidence’. In response to this explanation, the applicant stated:
Yes. No, Your Honour, the cross-examination of his clients, to me, will be the whole approach of the whole case.
The judge replied that there was no obligation on the respondent ‘to call any evidence’. He also stated that he had stressed from the outset that the applicant had to satisfy all the elements in his cause of action set out in the statement of claim and statement of issues. Following these statements, the applicant stated:
I was waiting – waiting for the cross-examination of them. That – I – I don’t understand the law the way youse [sic] people do, no.
The judge subsequently granted leave to the respondent to make the no case submission, heard submissions and reserved his decision.
By reasons delivered on 18 October 2023, the judge accepted the no case submission and gave judgment for the respondent.

Judge’s reasons

The judge noted that the respondent’s no case submission was based on a failure in respect of causation. More particularly, the respondent’s submission was that the applicant had not adduced evidence in relation to the following matters:
(a)assuming the septic system was missing the aerator arm until January 2017, whether it emitted any HP through the effluent pipes which were located in the lawn areas; and
(b)even if the system did emit HP, whether it caused the applicant’s HP infection i.e. whether the applicant ingested HP coming from that system.[6]
[6]Reasons, [20].
The judge observed that the applicant called in aid a temporal connection between beginning to reside at the site and the onset of the HP infections to demonstrate that the fitting of the aerator shaft would have averted his injury.[7]
[7]Reasons, [23].
In relation to the first point, the judge found that there was no evidence as to whether the septic system emits HP with, or without, the aerator arm. Similarly, there was no evidence as to how servicing would have remedied the situation. In fact, there was no evidence which explained the operation of the system at all.[8] The judge considered that there were many questions which were not answered, including whether the system emitted HP at all, even when fully functioning; what was the function of the aerator arm; and whether the operation of the aerator arm would have killed the HP.[9]
[8]Reasons, [24].
[9]Reasons, [28].

The judge concluded that, given that the applicant was unable to explain ‘the basic workings’ of the septic system in relation to its treatment of HP the applicant was unable to raise his allegations of infection from the system above being a mere possibility. He therefore upheld the no case submission on this point alone, which applied equally to the contract case.[10]
[10]Reasons, [30].
However, the judge also considered that there was no evidence that the source of the HP infections was ingestion of HP found on the lawn, that is, there was no evidence as to how the effluent went into the lawn, or how it went from there via oral route into the applicant’s body. He observed that the photographic evidence suggested that the effluent lines were below ground and that there was no evidence how HP emitted by underground effluent lines could find its way into the applicant.[11]
[11]Reasons, [31]–[32].
The judge also considered that the medical opinions did not assist the applicant’s case on causation given they were based on incorrect assumptions and inaccurate history that was not supported by the evidence.[12]
[12]Reasons, [33]–[38].
The judge considered that the case could not be resolved without further expert evidence and that, while there was a temporal link, this was insufficient. He concluded that the applicant could not prove that the lack of the aerator arm led to HP contaminated effluent being present in the effluent pipes and that the applicant had ingested HP from that source.[13] For similar reasons the case also failed in contract.[14]

Whether the trial judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial (ground 1)

Applicant’s submissions

[13]Reasons, [41].

[14]Reasons, [45].

In written submissions, the applicant submitted that he was confused in relation to the procedural aspects of the trial. He highlighted various extracts from the transcript where he indicated that the cross-examination of the respondent’s witnesses was important to his case. He submitted that he only became aware for the first time when the respondent was making its no case submission that there was a possibility that the respondent would not call a witness. He submitted that this then exposed the shortcomings in his case, which had not previously been brought to his attention.
The applicant accepted that the judge extended a considerable degree of latitude towards him, but emphasised that it was the occasion when judicial assistance was required, but not provided, which was critical and that point in time arose in the opening submissions of the parties. Thus the applicant’s submission was that the judge was made aware at the commencement of the trial of the evidence to be adduced on the part of the applicant, with no expert reports filed on questions of liability. Given that the respondent informed the court that causation was in issue, the absence of expert evidence was a powerful indicator of a potential hiatus in the applicant’s case, and this must have been apparent to the judge and to counsel for the respondent. The provision of expert evidence was also not a task one could expect a self-represented litigant to properly undertake without assistance.
The applicant submitted that there were two solutions. First, the judge ought to have declined the request for a no case submission and required the respondent to lead evidence. Secondly, the trial could have been adjourned to allow expert evidence to be obtained by the applicant.
However, the applicant also submitted that the adjournment might be avoided if processes were adopted to ensure the applicant was fully aware of the relevant procedural steps, including the need to ensure that he was able to prove all aspects of his case without being reliant on cross-examining the respondent witnesses. The applicant also submitted that the requirement to ensure that the applicant was aware of such matters further rested on counsel for the respondent. Thus the obligation of ensuring a fair trial could be discharged by the judge seeking an indication from opposing counsel as to whether anything other than what might be perceived as ‘the usual trial process’ was to be employed. The applicant submitted that if the judge had raised the possibility of a no case submission and counsel declined to respond, then that might have been relied upon to refuse the submission were it to be made.
In oral submissions, counsel[15] clarified that the real complaint was that the applicant had laboured under a misapprehension that he had the entitlement to cross-examine the respondent’s witnesses.
[15]The court was grateful for the assistance provided by counsel who were retained for the applicant via the Victorian Bar’s pro bono scheme.
The applicant again accepted that the judge offered a significant degree of assistance to the applicant, but that it was found wanting when it was actually required. Hence, simply saying that the applicant had to ‘prove his case’ was insufficient where the applicant was aware that he had to adduce all the evidence that he had, but had an expectation that he would be able to cross-examine the respondent’s witnesses. There was no timely warning that the respondent might not call evidence and might elect to make a no case submission.
Counsel submitted that the warning to the effect that it was the applicant’s ‘case to prove’ was insufficient, where the applicant was plainly labouring under a misapprehension that the evidence he had to give was that which he was able to personally offer. In those circumstances, the judge should have identified the consequences of either a no case submission, or a decision on the part of the respondent to not call evidence. The judge did not correct the applicant’s misapprehension that he was entitled to cross-examine the respondent’s witnesses to support his case.
Counsel also submitted that, given the changes in approach to litigation reflected by the Civil Procedure Act 2010, counsel for the respondent should have also informed the court of his intention, or at least informed the judge that he might not call any evidence in support of his case.
Counsel submitted that the matter should be remitted because it was possible that some other step might have been taken once the applicant properly understood his rights. Various possibilities were canvassed, including the possibility of applying for a short adjournment and/or relying on the medical evidence to fill the causation ‘gap’.
Respondent’s submissions
The respondent highlighted that the judge was very patient, and went to great lengths to explain the court processes to the applicant. This included the judge’s explanation that the applicant needed to give all his evidence and that it was his responsibility to prove his case.
The respondent highlighted the second exchange, above. He submitted that, prior to closing his case, the judge expressly warned the applicant that it was his duty to prove his case.
The respondent also rejected the suggestion that there was a duty to warn the applicant that his case may be ‘no-cased’ at the time of the openings, which was said to be wrong in principle for a number of reasons. The respondent highlighted that in Protean (Holdings) Ltd (rec and mgr apptd) v American Home Insurance Co,[16] this Court made clear that no reference is made to a no case submission in openings, but that it is usually made at the end of a plaintiff’s case. It also highlighted the multifaceted nature of the judicial discretion in respect of a no case submission. The respondent’s submission was that a judge should not, on his or her own motion, raise the hypothetical prospect of a no case submission.
[16][1985] VR 187, 237 (Tadgell J) (‘Protean’).
The respondent also submitted that there was no practical injustice here given that the applicant’s case was doomed from the start and that he had no more evidence to call. The respondent also highlighted that no submission was made as to the ultimate correctness of the decision to dismiss; no application was made for an adjournment; and that no case was cited for the proposition that the respondent’s counsel possessed a duty to assist the applicant and therefore discover a process to enable the applicant to prove his case.
In oral submissions, counsel challenged the suggestion that the applicant had an entitlement to be told that the respondent might choose not to call evidence. He also submitted that the applicant was advised anyway, twice, by reason of the two relevant exchanges set out, above. Finally, he submitted that the applicant’s failure to prove causation was always going to entitle the respondent to judgment.
The respondent rejected the suggestion that the applicant was labouring under a misapprehension that he would have opportunity to cross examine the respondent’s witnesses. He emphasised that the applicant was told during the first exchange that there was uncertainty if there would be any evidence from the respondent.
The respondent also rejected the suggestion from the bench that the applicant should have been told that he could consider whether he wanted to call the potential witnesses himself. The respondent accepted that the applicant was never told that the applicant could call the witnesses himself but submitted that the applicant was fairly provided with the opportunity to conduct his case, citing a number of references where assistance was extended to the applicant. The respondent submitted that the applicant did not possess a right to receive a running commentary from the judge as to the legal sufficiency of his case.

Legal framework

When considering the obligations of a judge in respect of a self-represented litigant, the authorities highlight the flexibility of the applicable requirements.
In Trkulja v Markovic (‘Trkulja’),[17] this Court examined a number of authorities, as well as the rationale for a judge’s duty in respect of self-represented litigants, before also highlighting the protean nature of the duty:
Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.[18]
[17]Trukulja v Markovic [2015] VSCA 298.
[18]Ibid [37] (citations omitted) (Kyrou, Kaye JJA and Ginnane AJA).
The Court further stated:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[19]
[19]Ibid [39] (citations omitted).
The Court also observed that the judge should not become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times and to all parties.[20]
[20]Ibid [41], citing McWhinneyv Melbourne Health (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141]–[142] (Bell J).
In 2018, this Court delivered two further decisions where a self-represented litigant complained about a lack of procedural fairness: Roberts v Harkness[21] and Doughty-Cowell v Kyriazis (‘Doughty-Cowell’).[22] In the second of these decisions, that of Doughty-Cowell, the Court helpfully collated the following relevant principles, highlighting the need to avoid ‘practical injustice’:
[21](2018) 57 VR 334; [2018] VSCA 215.
[22]Doughty-Cowell v Kyriazis [2018] VSCA 216.
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
·the nature and complexity of the issues in dispute;
·the nature and complexity of the submissions which the party wishes to advance;
·the significance to that party of an adverse decision; and
·the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.[23]

Analysis

[23]Ibid [63] (Maxwell P, Beach and Niall JJA) (citations omitted).

It may be accepted that the judge was courteous and patient, and provided extensive assistance to the applicant. It may also be accepted that the judge informed the applicant that he needed to prove his case.
Nevertheless, the critical issue was whether the judge’s assistance was sufficient given the persistent statements made by applicant that he wanted to elicit evidence from witnesses whom he believed would be called by the respondent. More particularly, where the applicant appeared to be labouring under a misconception that he would have an entitlement to elicit that evidence.
The first issue which arises is whether the applicant was evincing any such misconception which should have been apparent to the judge. In challenging such a conclusion, the respondent pointed to the first exchange where the judge expressly told the applicant that it was ‘uncertain’ if there would be any evidence from the respondent.
If this was the only exchange there may be some force in the respondent’s position. However, it was not the only exchange. Rather, on the following day, during the second exchange, the applicant indicated that ‘all the relevant information’ he sought to adduce would be derived from his ‘cross-examination of the [respondent’s] witnesses’. After being told that it was his case to prove, the applicant then reiterated that he could ‘cross-examine then’.
There are limits to how many times a judge should be expected to correct any misconception. However, it was apparent that the applicant continued to be under his misconception despite the judge’s earlier reference (to the situation being ‘uncertain’). The judge’s statement that it was the applicant’s case to ‘prove’ failed to squarely address that misconception. The applicant might have believed that he could still ‘prove’ his case through the respondent’s witnesses. In fact, he continued to make reference to being able to ‘cross-examine’ after being told that it was his case to prove.
In our view, then, the applicant evinced a serious misconception that he would be able to adduce further evidence through the respondent’s witnesses. In fact, it was only after the no case submission commenced (and the judge explained that there might be no obligation on the respondent to call any evidence) that the applicant appeared to appreciate that he could not cross-examine the respondent’s witnesses (the Taylors) whom he had been ‘waiting for’ and whom counsel for the respondent had said he proposed to call as part of its case — admittedly with qualifications but such that were not readily apparent to a layperson.
For reasons given already, the judge’s statement that the applicant needed to ‘prove his case’ was insufficient to disabuse the applicant of his serious misconception. In fact, the judge appears to have (inadvertently) compounded the applicant’s misconception shortly prior to the closure of his case by referring to ‘the course of the [respondent’s] case’ and indicating that the applicant might want to put additional documents to ‘them’, which the applicant could prove ‘through one of those witnesses’.
We thereby consider that the judge failed to appropriately correct the apparent misconception and thereby failed to ensure that the applicant, as an unrepresented litigant, had the degree of assistance required to ensure a fair trial and avoid ‘practical injustice’.
It is unnecessary to be prescriptive about what the judge ought to have done. However, at the very least, we consider that the applicant should have been expressly told, prior to closing his case, that the respondent might not call witnesses at all, in which case the evidence would be finished at the end of his case. Given that the applicant clearly wished to adduce ‘all the relevant information’ from the respondent’s witnesses, we also consider that the judge should have told the applicant that he was able to, and might choose to, call those witnesses himself. If such a path was taken, he could then have been advised about his ability to subpoena the Taylors (and particularly Andrew Taylor) and if necessary, in the course of their evidence to make an application to cross-examine them under s 38 (or perhaps to ask leading questions of them under s 37) of the Evidence Act 2008.
In its supplementary submissions delivered subsequent to the hearing, the respondent spent three pages arguing that the calling of either of one or other of the Taylors would not have affected the ultimate result. To a large extent, the submissions make good the argument of the applicant. Much is said in these submissions (or, to put it bluntly, speculated) about the evidence that they could or could not have given and their expertise in relation to the operation of the septic system and the dispersal of effluent from the septic system.
The Taylors were involved in the manufacture and inspection of the septic system. Contrary to the respondent’s submission, it may well be that their experience would have enabled them to give evidence as to not only the manner in which the septic system operated, but also the potential for the dispersal of effluent This, in conjunction with the evidence of the gastroenterologists (discussed later) and the drawing of reasonable inferences, may well have advanced the applicant’s case significantly. At the very least it simply cannot be said that their evidence could have made no possible difference to the result.[24] In such circumstances, the matter ought be sent back to the judge.[25]
[24]Stead v State Government Insurance Commission (1986) 161 CLR 141, 146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54.
[25]In oral argument, the parties agreed that, in the event this Court decided that the appeal should be allowed and the proceeding remitted, then the matter should be sent back to the trial judge for further hearing and determination in accordance with these reasons.

In coming to these views, we are acutely aware of the difficulties faced by a judge in the intense and dynamic atmosphere of a trial court. It is important not to set unrealistic standards in such a setting. Thus, we do not accept the applicant’s submission that the specific possibility of a ‘no case submission’ should be expressly acknowledged in openings. We would however observe that some of the difficulties in this case might have been avoided if a clearer statement was made about the way the case would proceed at the time of those openings when the judge was outlining the ‘ground rules’. Such a statement would ordinarily include some of the matters the judge referred to (about the applicant making an opening address and adducing evidence). However, such a statement should also include a statement to the effect that, at the conclusion of a plaintiff’s case, a defendant will have a decision about whether they call evidence or not. If a defendant calls witnesses, then a plaintiff will be entitled to cross-examine those witnesses, but if they do not, then the plaintiff will not have such an opportunity and the evidence will be finished at the conclusion of a plaintiff’s case.
Insofar as the applicant made complaint about the conduct of respondent’s counsel, it may be accepted that a no case submission is ordinarily not made until after a plaintiff closes their case. Judges and trial lawyers understand how the rule operates. However, consistent with the overarching purpose, there is much to be said for the proposition that counsel ought ensure that a self-represented litigant has, at least, some notice in clear language of the possibility that a defendant might not call any witnesses at all. References to a ‘no case submission’ without any mention as to how in real terms it will impact on a self-represented litigant’s case is inadequate. This is particularly so when the Taylors had been flagged by counsel as potential witnesses at the commencement of the trial. We also consider that some of the exchanges between the judge and counsel in this case were unlikely to have been understood by the applicant (e.g. as to whether counsel had a ‘final position’). This tended to underscore the comparative disadvantage of the applicant as a self- represented litigant.
Suffice to say, then, that counsel’s reticence fortifies us in our conclusions.
The result is that the applicant has made out proposed ground 1 and the proceeding should be remitted to the judge.

Should the judge have considered s 51(2) of the Wrongs Act and/or alerted the applicant to its availability? (ground 3)

The respondent admitted that it owed the applicant a duty to take reasonable care ‘to ensure that the septic system it manufactured, distributed and sold was reasonably safe for use’. On the evidence adduced at trial, that duty extended to the exercise of reasonable care in the installation and maintenance of the septic system.
Determining whether that duty of care was breached by the respondent and whether there was any causal link between the asserted breach and the applicant’s HP infection fell to be determined solely by the application of the Wrongs Act. This has been the situation in this State for over twenty years.
Of specific relevance to this proposed ground and the judge’s decision to enter judgment for the respondent on the no case submission are the provisions of s 51, which deal with causation:
General principles
(1)A determination that negligence caused particular harm comprises the following elements—
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The only question argued by the respondent on the no case submission was the applicant’s failure to establish a causal link between his HP infection and the operation of the septic system. Although no mention was made of the relevant provisions of the Wrongs Act, it can be assumed that (probably inadvertently) the submission was directed solely to factual causation under s 51(1)(a).
The judge did not, in his reasons for acceding to the no case submission and dismissing the applicant’s claim, refer to the Wrongs Act either generally or specifically to s 51(1) or s 51(2). It is also clear, upon a reading of the transcript, that these provisions were not mentioned by either party or the judge in the course of any discussion during the trial, and certainly not during the course of the respondent’s no case submission. Nor were they referred to in the applicant’s proposed notice of appeal or the accompanying written case in this Court.
We thought it necessary at the commencement of this application to raise this issue (i.e. the failure of the judge to consider s 51 of the Wrongs Act) and its ramifications with counsel for both parties. It seemed to us to be arguable that the provisions of s 51 (and, more particularly, as will be discussed in a moment, s 51(2)) were potentially engaged and, also, again arguably, that these should have been drawn to the applicant’s attention before there was any resolution of the respondent’s no case submission.
Having referred the parties to the provisions of s 51, we invited counsel for the applicant to consider whether his client wished to file an application to amend his grounds of appeal and file any written supporting submissions. This course was not objected to by counsel for the respondent who, of course, was given the opportunity to respond. Each party filed supplementary submissions.
The applicant’s proposed ground 3 is set out at [4] above and both parties filed submissions relevant to it.
In his reply, counsel for the applicant appropriately withdrew the submission that it was mandatory for the judge to have considered the application of s 51(2) as proposed ground 3(a) implied. There was no obligation on the judge to consider the section. As this Court explained in Powney v Kerang and District Health (‘Powney’),[26] s 51(2) does not have universal application. An appropriate case is not every case.
[26](2014) 43 VR 506; [2014] VSCA 221 (‘Powney’). See also 5 Boroughs NY Pty Ltd v Victoria [No 2] [2022] VSC 494.
Given the effective abandonment of ground 3(a) this left only the question, under ground 3(b), as to whether the judge should have provided the applicant with the opportunity of proving causation by recourse to s 51(2).
Given our conclusion in relation to ground 1 and the remitter of the proceeding to the trial judge, consideration of this ground is not essential. However, given that this case will need to be reconsidered by the judge we have also addressed this issue.
Medical evidence
Two gastroenterologists provided reports relevant to the relationship between the septic system and the applicant’s acquisition of HP. Associate Professor Desmond, in his report of 24 July 2018 concluded:
It is my opinion that his original symptoms of epigastric pain, heartburn and reflux are consistent with a Helicobacter infection. Helicobacter pylori is a bacteria that is spread by the faecal-oral route so it is very conceivable that his initial infection is related to the malfunctioning pump on his septic system, as he would be exposed to faeculate material from working around the pump on the land where it was released.
Dr Jakobovitz, a consultant gastroenterologist and hepatologist, had been provided with a copy of Associate Professor Desmond’s report and on 19 April 2022 provided the following assessment to the applicant:
You were diagnosed in early 2015 with a Helicobacter pylori infection and it is likely this was acquired when you were in contact with sewage which was not appropriately treated in a plant installed by Taylex. Professor Paul Desmond has accepted that this was the likely route of acquisition of Helicobacter pylori which is acquired by the faecal oral route. I would agree that this is probably how you acquired the Helicobacter infection.

Applicant’s submissions

The crux of the applicant’s argument, as it then turned out, was that procedural fairness required that the section be brought to his attention by the judge so as to allow him the opportunity to argue for the section to be applied by the judge.
The applicant pointed to the evidence of the two gastroenterologists engaged by the applicant: Associate Professor Desmond, opining that it was ‘very conceivable’ that the applicant’s infection was related to the system and Dr Jakobovits’ opinion that the system was ‘probably’ the source of the applicant’s HP.
It was argued that Dr Coleman’s report (obtained by the respondents) did not contradict what was said by the other gastroenterologists.
It was then contended that, given there was no other suggested source of exposure to HP, the installation of the septic system remained the only possible cause. This, it was then said, should have been part of the consideration of whether s 51(2) could be relied upon.
In those circumstances, it was said that if the applicant had been alerted as to the availability of s 51(2), he could have relied upon the section if he failed to establish causation under s 51(1).

Respondent’s submissions

The respondent commenced its submissions by correctly asserting that there was no mandatory obligation upon the Court to consider s 51(2) — the point was subsequently conceded by the applicant.
The respondent then contended that the requirements s 51(2) had not been met by the applicant and that for s 51(2) to be engaged, it must be demonstrated that:
(a)this is an appropriate case;
(b)section 51(2) can be applied ‘in accordance with established principles’;
(c)factual causation cannot be established; and
(d)responsibility for the harm should be imposed on the negligent party.
The respondent said that only the third criteria had been established, namely, that s 51(1) was not satisfied.
The respondent submitted that the applicant had not identified any scientific uncertainty concerning the mechanism of infection, which made it impossible for him to prove the cause of his harm. Further, the applicant had clearly not proved ‘all he possibly could and was thereby prevented from establishing causation’.
Then, it was said that this was not a case in which the application of the test of factual causation produced an anomalous or unjust result.
The applicant argued that given the facts of this case it was neither appropriate nor in accordance with established principles to engage s 51(2) to bridge the evidentiary gap. This case did not fall within a Fairchild v Glenhaven Funeral Services Ltd (‘Fairchild’)[27] type case which the High Court adverted to in Strong v Woolworths Ltd (‘Strong’).[28]
[27][2003] 1 AC 32 (‘Fairchild’).
[28](2012) 246 CLR 182, 194–5 [25] (French CJ, Gummow, Crennan and Bell JJ); [2012] HCA 5 (‘Strong’).
It was then said that even if the applicant had been alerted to the availability of the section and relied upon the provision and it had been considered by the judge, it was inevitable that the judge would have refused to apply s 51(2) and therefore no injustice arose by the judge’s failure to do so.
The respondent also argued that it was necessary for notice to have been given of reliance upon s 51(2) and that this had not been done, notwithstanding that the applicant had, for a considerable time, been represented by lawyers. It was said that the absence of a lawyer at the trial did not entitle the applicant to have the trial judge change the pathway of a case which his lawyers had previously determined.

Analysis

In Adeels Palace Pty Ltd v Moubarak (‘Adeels Palace’),[29] the High Court said:
It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.[30]
[29](2009) 239 CLR 420; [2009] HCA 48 (‘Adeels Palace’).
[30]Ibid 440 [44] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).
The application of the provisions of s 51 in the context of this case operated as follows:
(a)Section 51(1) required the applicant to establish that the negligent act or omission (as established by ss 48 and 49) of the respondent was a ‘necessary condition of the occurrence of the harm’.
(b)If the applicant failed in that regard, then s 51(2) — the evidentiary gap provision — may be engaged ‘in an appropriate case’ and ‘in accordance with established principles’
In Adeels Palace, the High Court said of the analogous New South Wales provision to s 51(2) — s 5D(2) of the Civil Liability Act 2002 (NSW) — which refers to an ‘exceptional’ rather than ‘appropriate’ case:
Section 5D(2) makes provision for what it describes as ‘an exceptional case’. But the Act does not expressly give content to the phrase ‘an exceptional case’. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the ‘but for’ test of causation is not met. In such a case the court is commanded ‘to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’. But beyond the statement that this is to be done ‘in accordance with established principles’, the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.
At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised that the ‘but for’ test was not always a sufficient test of causation. But as s 5D(1) shows, the ‘but for’ test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).
Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an ‘exceptional case’ where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles.
It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd, where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now.[31]
[31]Ibid 443 [54]–[57] (emphasis in original) (citations omitted).
Subsequently, in Strong[32] the majority of the High Court observed that the additional route provided by s 52(2) or its analogues to establishing causation appeared to be designed to address two situations in which causation could not be established applying the ‘necessary condition’ test, namely:
(a)Bonnington Castings v Wardlaw (‘Bonnington’)[33] type cases, which involve ‘the cumulative operation of factors in which the contribution of each factor to that harm is unascertainable’;[34] and
(b)Fairchild[35] type cases, which involve ‘negligent conduct that materially increases the risk of harm in circumstances in which the state of scientific or medical knowledge makes it impossible to prove the cause of the plaintiff’s harm’.[36]
[32](2012) 246 CLR 182; [2012] HCA 5.
[33][1956] AC 613 (‘Bonnington’).
[34]Strong (2012) 246 CLR 182, 194 [25] (French CJ, Gummow, Crennan and Bell JJ); [2012] HCA 5.
[35][2003] 1 AC 32.
[36]Strong (2012) 246 CLR 182, 194 [25] (French CJ, Gummow, Crennan and Bell JJ); [2012] HCA 5.
Then, this Court in Powney,[37] examined the provision in some detail. In that case, at the last moment in the course of the trial of a medical negligence claim, counsel for the plaintiff had sought that the judge direct the jury to consider the application of s 51(2) when deciding causation. The basis of claim was relatively simple: whether a negligently given Pethidine injection was the cause of a serious infection suffered by the plaintiff whilst in hospital.
[37](2014) 43 VR 506; [2014] VSCA 221.
The Court held that s 51(2) could only be considered and applied by a judge — not the jury. But in the course of reaching that conclusion, the Court examined the application of s 51(2):
Therefore, it can be accepted that s 51(2) is a recognition by the legislature that in certain cases the ‘but for’ test may produce anomalous or unjust results, and a court may, in an appropriate case, ‘bridge the evidentiary gap’.
For the following reasons, it is clear, in our view, that the trial judge was correct in rejecting the appellant’s counsel’s submission that the jury determine the issues raised by s 51(2). First, an appropriate case is to be determined ‘in accordance with established principles’. An analysis of the established principles, as required by the subsection, could only occur by judicial scrutiny of authority and a determination as to whether the appellant was able to rely on the provisions of the section. Similarly, only judicial scrutiny can resolve the operative part of s 51(2) – namely, ‘whether or not and why responsibility for the harm’ should be imposed on the negligent party. It is worth repeating a portion of the extract from Adeels Palace at [81] above in relation to s 5D(2) of the Civil Liability Act 2002 (NSW):
Whether, or when, s 52(2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.
And in Strong, the court said:
Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this Court. Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.
And subsequently:
The determination of factual causation under s 5D(1)(a) is a statutory statement of the ‘but for’ test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.
…It follows that the exercise under s 51(2) requires a normative judgment to be made by the trial judge — not the jury.
This result is consistent with the approach endorsed by the High Court in relation to the application of a normative test as required by the scope of liability provisions, s 51(1)(b) and s 51(4).
Further, this approach conforms with the intentions of the legislature, which clearly regarded it as a task of the judicial officer to consider whether the evidentiary gap should be bridged by recourse to s 51(2), as the paragraphs of the Second Reading Speech and Explanatory Memorandum demonstrate:
[T]he court is to consider, amongst other relevant things, the value judgement of, whether or not and why responsibility for the harm should be imposed on the negligent party.
This proposition is also consistent with the observations made in the Ipp Report as to the making of ‘a value judgment about the allocation of costs of injuries and death’ in determining whether to impose responsibility on a negligent party. Of course, factual causation (the requirements of s 51(1)) remains within the province of the trier of fact — in this case, the jury. On the other hand, however, identifying the circumstances in which s 51(2) (or, for that matter, s 51(1)(b)) might be engaged was a task for the judge. On this basis alone, the trial judge was clearly correct in leaving only the question of factual causation to the jury.
We would add that neither at the trial nor on appeal did the appellant submit that the trial judge ought to resolve the s 51(2) point.
Second, to engage s 51(2) it must be determined that negligence ‘cannot be established as a necessary condition of the occurrence of the harm’ for the purpose of factual causation. Accordingly, in this case, it was necessary for the Court to be satisfied that the appellant was unable to establish factual causation under s 51(1)(a) prior to s 51(2) being engaged. …
Third, we think it clear, contrary to the submissions of appellant’s counsel, that the section was not intended as a fall back provision in a conventional case for a plaintiff who is unable to establish factual causation. Rather, it was designed to accommodate cases quite out of the ordinary — particularly those involving exposures to a particular agent on multiple occasions, all of which contributed to a disease process but factual causation could not be attributed to a specific exposure. Alternatively, it was to be employed where scientific evidence may be developing in identifying the level of exposure to a particular agent necessary to produce injury.[38]
[38]Ibid 524–5 [83]–[97] (Osborn, Beach JJA and J Forrest AJA) (emphasis in original) (citations omitted).

As we said at [40] above, the respondent’s no case submission turned on the lack of evidence as to the following matters:
(a)assuming the septic system was missing the aerator arm until January 2017, whether it emitted any HP through the effluent pipes which were located in the lawn areas; and
(b)even if the septic system did emit HP, whether it caused the applicant’s HP, i.e. whether the applicant ingested HP coming from that system.
The judge, as we set out at [41]–[46], accepted these submissions holding that the evidence on the first point did not go past that of a possibility and that on the second point there was insufficient evidence.
In Oakley v Insurance Manufacturers of Australia Pty Ltd,[39] Kaye J (as his Honour then was) examined a large number of authorities in which no case submissions had been entertained.[40] His Honour set out six broad principles which emerge from those authorities. It is only necessary to recite the first two:
(1)Where a no case submission is made in a trial by jury, the role of the judge is to determine whether, on the view of the evidence most favourable to the party against whom such a submission has been made (‘the respondent party’), the jury could (not would) find in favour of the respondent party.
(2)The test which is applicable, where a judge is sitting without a jury, is less stringent. In such a case the judge may uphold a no case submission, notwithstanding that the evidence, on the view most favourable to the respondent party, could support a judgment in favour of the respondent party.[41]
[39][2008] VSC 68 (‘Oakley’).
[40]Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22; Protean [1985] VR 187; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Clarey v Permanent Trustee Co Ltd [2005] VSCA 128; Sarkis v Deputy Commissioner of Taxation (2005) 59 ATR 33; [2005] VSCA 67.
[41]Oakley [2008] VSC 68, [3] (citations omitted).
The exception in (2) to the general principle applies to a case where the judge may think the only evidence to contradict the no case submission is close to worthless by reason of credit or reliability.
We have set out above at paragraphs [64] and [65] the judge’s duty in relation to self-represented litigants, as explained in Trkulja. The question here is, did legitimate judicial intervention require the judge to advise the applicant of the application of s 51(2) to his claim against the respondent at this stage of the trial?
To repeat what we set out at [65]: it is elementary that a judge ought to ensure that a self-represented litigant understands his or her rights, so that he or she is not unfairly disadvantaged by being in ignorance of those rights.
Section 51(2), in an appropriate case, provides a plaintiff with an alternative method of establishing causation if s 51(1) cannot be satisfied. What constitutes an appropriate case depends entirely upon the facts and circumstances surrounding the case. The individual requirements of the section need to be considered, and a value judgment then needs to be made by the trial judge after examining all the evidence presented in the course of the trial as to whether the section should be engaged.
The Victorian legislature chose to use the word ‘appropriate’, rather than ‘exceptional’ in the evidentiary gap provision. It is not prescriptive and does not identify the type of case to which it might apply. That leaves much to the judge’s determination although the bar to be cleared in this State is patently less than that of an exceptional case as in New South Wales.
As we mentioned earlier, the judge concluded that the applicant could not prove that the lack of the aerator arm led to HP contaminated effluent being present in the effluent pipes and that the applicant had ingested HP from that source.[42]
[42]Reasons, [41].
However, by the end of the applicant’s case, the following had been established (at least on a prima facie basis):
(a)that it was likely that the applicant was, from 2012 onwards, suffering from HP infection which could be caused by exposure to faeculent material;
(b)that the pipes of the septic system ran under the area adjacent to the house where the applicant lived from 2013;
(c)that it was ‘very conceivable’ that the applicant’s HP infection was related to a malfunctioning pump on the septic system, as ‘he would be exposed to faeculent material from working around the pump on the land where it was released’ —Associate Professor Desmond and Dr Jakobovits, in agreement;
(d)there was no alternative explanation for the applicant’s HP infection or his symptoms consistent with that infection.
The essence of the evidence of both gastroenterologists (Desmond and Jakobovitz) is that contact with the faeculate material could produce HP. The septic system contained such material, and its end product was distributed through the area close to the house. It can be readily inferred that the system operating properly should not distribute such material.
There is no authoritative case law as to what constitutes an appropriate case under s 51(2). Certainly, dust disease cases such as those fitting the facts in Bonnington and Fairchild[43] may be covered by it. However, there is nothing in the wording of the provision which would limit its application to that type of case alone. In Powney, this Court said it would not be available in a simple case. We agree but this was not such a case.
[43]These were both dust disease cases. Ironically, s 51(2) does not apply to dust diseases cases, as Part 10 of the Wrongs Act is excluded and common law principles apply.
Contrary to the respondent’s submissions, s 51(2) may have provided the judge with an alternative means to resolve the evidentiary gap he identified: the evidence of the two gastroenterologists as to the likely cause; the temporal connection between the applicant’s HP infection and the operation of the septic system; and the lack of an alternative explanation for his infection, all meant that this might have been ‘an appropriate case’ in which to invoke s 51(2).
Contrary to the respondent’s submission, the point was not hopeless. Given that the applicant only needed, on the no case submission, to establish a prima facie case on causation, the need to advise him of his ability to rely upon s 51(2) if he failed on factual causation under s 51(1)(a) was all the more important. To engage in a lengthy debate, as the respondent would invite us to do, about when s 51(2) might be engaged is pointless — as long as it was arguable on the no case submission that it may be utilised then we consider that the applicant should have been appraised of its availability.
In our opinion, in those circumstances it was appropriate for the judge to explain to the applicant the terms of s 51 and particularly s 51(2). Of course, it was no part of the trial judge’s task, as Trkulja explains, to advise the applicant how to then engage that provision. That was a decision for the applicant — but he had to know of the existence of the provision.
The applicant should be granted leave to amend his notice of appeal, to appeal on ground 3(b), which has also been established.
Finally, we should mention three things: first, nothing that we have said detracts from the statement in Powney that, in normal circumstances, a party should give notice as to reliance upon s 51(2). We think, however, that to insist in all cases upon a party pleading reliance on the section may be too extreme. Each case turns on its own circumstances and the primary consideration is that the judge and the parties are not taken by surprise by reliance upon the provision if s 51(1) is not satisfied.
Self-evidently, this obligation will not necessarily extend to a case involving a self-represented litigant, who cannot be expected to have knowledge of the intricacies of the Wrongs Act — indeed, which escaped, it would appear, the attention of all the lawyers associated with this piece of litigation.
We reject entirely the proposition advanced by the respondent that once his lawyers had not pleaded nor relied upon s 51(2) at some point prior to the trial commencing then, in effect, the applicant — a self-represented litigant — was bound by their conduct and precluded from relying upon the section at trial. No authority was cited for this proposition, and it runs counter to the concept of a fair trial according to law, as well as the obligations on a judge to ensure that a fair trial is afforded to a self-represented litigant.
Second, and this flows in part from what we have just said, we are acutely aware of the fact that no reliance on the section was mentioned by the applicant either before the trial or in its course. The conclusion we have reached may seem to place too high a burden on a judge who, as we said earlier, clearly carried out his task conscientiously and diligently. However, the applicant was unrepresented and this statutory provision (which has been in force for over twenty years) may have made a real difference not only to the success of the respondent’s no case application but, perhaps, to the end result.
Third, it may be that ultimately the applicant’s case cannot be established whether s 51(2) is engaged or not. But that is not the point. The applicant’s right to a fair trial requires that he be given the opportunity to prove his case according to law. And that can only be achieved by remitting the case to the judge.

Conclusion and disposition

The applicant should be granted leave to amend his notice of appeal to include proposed ground 3(b). Leave to appeal on grounds 1 and 3(b) should be granted, and the appeal allowed. The order of the County Court dismissing the proceeding should be set aside. The proceeding should be remitted to the County Court for further hearing by the judge in accordance with these reasons.

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[2025] VSCA 94

6 May 2025