Burling v Leemac Nominees Pty Ltd & Anor [1999] VSCA 45

Court of Appeal (Vic)|1999-04-14|Before: BROOKING, PHILLIPS and BUCHANAN, JJ.A.

ACCIDENT COMPENSATION - Proceeding brought to recover compensation - Amended to claim also leave to sue at common law - Allegation of injury disputed - Plaintiff disbelieved and claims dismissed - Whether procedural error in course of trial. EVIDENCE - Expert witness - No notice of evidence given as required - Exercise of discretion to admit - Leave given on terms of adjournment - Whether discretion miscarried - Appeal dismissed: County Court Rules, Chap. I r.44.05, Accident Compensation Act 1985 s.52(1).

On 13 March 1996, Colin Burling ("the plaintiff") filed a writ in the County Court to commence this proceeding. In his statement of claim he alleged that on 15 August 1995 he sustained personal injury arising out of or in the course of employment and that as a result of that injury he was totally incapacitated for work. His claim for compensation under the Accident Compensation Act 1985 having been rejected on 12 December 1995, he now sought an order for weekly payments and other forms of compensation under that Act. The defendants were the plaintiff's erstwhile employer and FAI Workers Compensation (Vic.) Pty Ltd, by whom the plaintiff's compensation claim had been rejected.

At the time of the injury the plaintiff was a car salesman working at a car yard in Moorabbin. It was the plaintiff's case that on 15 August 1995, whilst at his place of employment, he suffered injury to his lower back while single-handedly shifting his employer's Harley-Davidson motorcycle from a parked position near the front of the yard over a distance of some ten yards to a position near the office.

The defendants denied the plaintiff had sustained injury as alleged. It was their case that the plaintiff had not shifted the motorcycle at all and that his version of the incident was wholly concocted. Whether that was so was the critical issue of fact at trial.

When the trial was brought on in the County Court on 10 April 1997 the plaintiff obtained leave to amend his pleading to add an allegation that he had suffered "serious injury" within the meaning of s.135A of the Accident Compensation Act and a prayer for leave to bring proceedings for damages at common law. Plainly that was to be considered in the context of the proceeding already on foot and the issues raised by it.

By the time the trial had gone five days there was a clear conflict of evidence. On the one hand, the plaintiff swore that he had shifted the motorcycle, with its steering locked, through a long and tedious process from its parked position near the front of the yard to a position close to the office, and this for the sake of security while the car yard was shut overnight. On the other hand, the plaintiff's employer swore that when he left the car yard at about midday he had left the motorcycle near the front of the office and that accordingly it needed no shifting. Further, the employer swore that he found it impossible to move the motorcycle manually, it was so heavy. By the end of the fifth day no expert evidence had yet been called.

On the sixth day of the trial, plaintiff's counsel was handed an Order 44 statement of the evidence of one Mark Dohrmann, an engineer who defendants' counsel intended to call as his next witness. Plaintiff's counsel immediately objected to the evidence being led on the ground that Order 44 had not been complied with, submitting that the plaintiff was thereby deprived of the opportunity to consider the evidence before presenting, and indeed closing, his case and without himself consulting an expert. He submitted too that no reason had been vouchsafed for the defendants' non-compliance with Order 44, there having been a solicitor's memorandum made some twelve months earlier about the possibility of calling expert evidence.

Defendants' counsel attempted to argue that Order 44 had no application inasmuch as the claim, inserted by amendment, for leave to bring proceedings for common law damages was a claim that ought properly to have been made by originating motion, not by writ, and Order 44 applies only to a proceeding commenced by writ. By the same token, so far as the rest of the plaintiff's claim was concerned, the proceeding was properly commenced by writ and, as the evidence sought to be led bore directly on that part of the proceeding and as the only proceeding before her Honour was one commenced by writ, the judge acted upon the footing that Order 44 applied, and I cannot say that she was wrong. On that basis the defendants were in default under Order 44 for not having given at least ten days' notice of Mr Dohrmann's evidence. The question then was whether leave should be granted under rule 44.05.

As already indicated, plaintiff's counsel made strong objection to the defendants' being permitted to call the evidence notwithstanding non-compliance with Order 44. Her Honour heard submissions and ruled that leave should be granted, but on terms. She granted an adjournment of some 14 days but required Mr Dohrmann to give his evidence before commencing the adjournment. His evidence was in substance that it was not possible for one adult to apply the force needed to shift the motorcycle as the plaintiff claimed he did.

During the adjournment the plaintiff retained another engineer, one Lightfoot, to consider the possibilities. When the trial resumed on 30 April, Mr Dohrmann was recalled for cross-examination, but he first gave additional evidence in chief to qualify his earlier opinion in the light of Mr Lightfoot's intervening report. The plaintiff then re-opened his case and called Mr Lightfoot, who expressed his opinion that he was able to move the motorcycle, albeit only over short distances of two or three inches at a time.

Written submissions were then delivered by both parties and judgment was given on 15 June 1997. In detailed and comprehensive reasons for judgment, her Honour rejected the plaintiff's version of events, saying "that the plaintiff's claim that he shifted the bike is improbable". Her Honour gave a number of reasons for this conclusion, including the circumstances of moving the motorcycle, which to the plaintiff's knowledge was extremely heavy and which he had never been required to move previously; the lack of any credible explanation by the plaintiff as to how precisely he did manage to shift the bike; Mr Dohrmann's evidence about the effort needed and the improbability of one adult being able to shift the motorcycle single-handedly; and the plaintiff's failing, as the judge found, for some three months to report the incident to others, including doctors. The judge did not accept the employer's evidence that he had left the motorcycle close to the office on the day in question but she did accept his evidence that it was beyond his capacity to shift it on his own.

The judgment runs for some 34 pages and I have scarcely done justice to it by this brief summary. Suffice it, however, to add for present purposes that her Honour concluded as follows:

"Taking all of these matters into consideration, I am not satisfied that it is more probable than not that the plaintiff injured himself as he said he did in compensable circumstances on 15th August 1995. Accordingly the plaintiff's claim fails."

The formal order was one of dismissal, encompassing the plaintiff's claim to compensation under the Accident Compensation Act and his claim for leave to bring proceedings for damages at common law.

The plaintiff now seeks to appeal, contending that there was a want of procedural fairness at the trial in the trial judge's allowing the defendants' application for leave to call Mr Dohrmann as a witness notwithstanding non-compliance with Order 44. In seeking to appeal on such a basis, the plaintiff faces considerable obstacles. First, there is no doubt but that under Order 44 the trial judge was given a discretion which she purported to exercise. The exercise of discretion can be overturned on appeal only in accordance with well established principles which are found in cases such as House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499. According to these principles such an appeal can succeed only after the appellant demonstrates that the trial judge proceeded upon some erroneous principle, was mistaken as to the facts, took into account irrelevant considerations or ignored considerations to which she was bound to have regard, or perhaps arrived at a decision which was manifestly unreasonable. The question is not how the appellate court would have exercised the discretion for itself, but whether, according to the principles I have mentioned, the appellant demonstrates appealable error in the exercise of the discretion below. Then there is the further obstacle that the High Court has enjoined appellate courts to be slow to overturn in particular an exercise of discretion on a matter of practice and procedure: Adam P. Brown Male Fashions Pty Ltd v. Phillip Morris Inc. [1981] HCA 39; (1981) 148 C.L.R. 170.

We have heard the submissions of the plaintiff who appeared this morning in person and have had the benefit of written summary of argument prepared on his behalf. The document filed this morning was, I should add, fairly lengthy and certainly comprehensive. Suffice it to say that, having considered what has been said both orally and in writing, I am unable to detect appealable error in the exercise of the discretion of the judge.

It is true that the defendants did not really provide any satisfactory explanation for not having given the notice required under Order 44, but it is equally true that, in giving leave, the judge did not thereby give leave to the defendants without seeking to compensate the plaintiff for such prejudice as that involved. Thus an adjournment was granted for the plaintiff to consider this fresh evidence and, as 14 days were allowed, it can scarcely be said that the plaintiff was denied a proper adjournment. It proved sufficient time for the plaintiff to obtain his own evidence and, as it happened, the plaintiff had the added advantage of hearing Mr Dohrmann's evidence-in-chief, at least in the main, before the adjournment commenced. While it may be accepted that the granting of leave under Order 44 was to the prejudice of the plaintiff, the effect of that prejudice was surely overcome by the very healthy adjournment that was allowed. At all events, I am not persuaded to the contrary.

This morning the plaintiff emphasised, both orally and in the written submission, that when the trial resumed after the adjournment the course followed was such that Mr Dohrmann was allowed to give further evidence-in-chief. But that possibility was adumbrated when the adjournment was granted and plaintiff's counsel then indicated that he would be content should that occur. Nor did he express any objection when Mr Dohrmann was giving his further evidence. He made no other complaint and sought no further adjournment.

As I have said, in my opinion no appealable error has been demonstrated. That absolves me from considering whether in this case, if there was error, it was error of law as required under s.52 of the Accident Compensation Act. An appeal under s.52 may be brought without leave, but is authorised only on a question of law.

It follows from the foregoing that the appeal cannot succeed. The plaintiff acknowledges that insofar as he seeks to appeal against the judge's refusing to give him leave to commence proceedings for damages at common law, he must have an extension of time from this Court. As for the rest of it, he needs no extension. If the other members of the Court share the views I have expressed, in all of the circumstances of this particular case I would refuse an extension of time so far as the same may be necessary and otherwise dismiss the appeal.

The order of the Court is that the application for extension of time is refused to the extent to which an extension is necessary, and that otherwise the appeal is dismissed with costs.

At a glance

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Judgment (23 paragraphs)

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