Connell v Sund & Anor [2004] VSCA 228

Connell v Sund & Anor [2004] VSCA 228 - VSCA 2004 case summary — Zoe

[68]

I have traversed the evidence and the assertions about the appellant's use of marijuana at some length because, in my view, it supports the appellant's contention that this trial became unfair as a result of the constant reference to this aspect of the appellant's habits by counsel for the respondents. In my opinion, the evidence was irrelevant to the issues of liability and, likewise, was irrelevant to the issues of damages. As I have said before, the issues in this case were clear cut and in short compass. The appellant was either requested to climb the ladder or, alternatively, volunteered to climb the ladder. The undeniable fact is that he did climb the ladder to a point where his head was level with the peak of the tree and was about to descend when the tree gave way and the plaintiff fell to the ground with it. Neither respondent had originally pleaded that the appellant's use of marijuana, either on the night before the incident or on the morning of the incident, was in any way causally connected with the accident or the injuries received. That matter was broached for the first time whilst the appellant was in the witness box and, thereafter, it appears to have developed "a life of its own". It was suggested, in seeking to amend the pleadings so as to include an allegation concerning marijuana use, that it was relevant to the liability issue because such use had possibly clouded the plaintiff's judgment and his "sense of space and time" whilst he was doing what he did. Indeed, it was contended that the appellant's failure to hear and heed the second respondent's exhortation of "Jump Dean, jump" was a consequence of his prior ingestion of the drug. That proposition, in my view, only has to be stated to reveal its absurdity. And yet, that was - so far as I can see - the basis upon which the proposed amendment was supported. But, on any view, there was no evidence in the trial which could have supported the proposition that the use of marijuana suggested by the respondents was causally related to the appellant's climbing of the ladder, or his willingness to assume the risk of injury. In my view the evidence of the appellant's general practitioner would not have done so. That evidence was of a general nature and, in any event, was introduced well after the amendment. The judge was, in my view, in error in permitting the pleadings to be amended to allege, as a particular of contributory negligence and also as a particular of "voluntary assumption of risk", the allegation relating to the ingestion of marijuana. All that did was to create a false issue in the trial which allowed prejudicial material to go before the jury which they should not have had access to. Indeed, I agree with the remarks made by the appellant's trial counsel during the course of one of his applications to discharge the jury that, at the end of the day, it was "going to be very hard for the jury to keep its eye on the ball - i.e. ... the responsibility of the two men, the two [respondents] who admit they were there, who admit the tree fell and who admit they were trying to pull it down at the time."

[69]

The "false issue", created by the amendments to the pleadings, was one to which the appellant was bound to respond by calling a number of witnesses to rebut the suggestion that he had been smoking marijuana on the night before the accident. The appellant was not to know that the witness upon whom the respondents were intending to rely in support of this proposition would admit doubt as to the identity of the particular night. The issue became "false" simply because ingestion on the preceding night or on the morning of the accident (even if established) could not be made relevant to the issues of liability in the manner suggested. Furthermore, I doubt very much whether the evidence of marijuana ingestion relevantly bore on the plaintiff's credit worthiness. I cannot think of how the fact that he had smoked marijuana either on the night before this accident or on the morning of the accident, could bear upon the credit to be given to his account of how this accident occurred, or the consequences which it had. Much of course must depend upon the issue to be proven and the circumstances. However, for the reasons which I have stated, it seems to me that counsel for the respondents took liberties to which they were not entitled. The assertion that the appellant had been responsible for growing marijuana hydroponically was the assertion of the commission of a criminal offence. If it went to anything in this trial, it could have only gone to the appellant's credit. Nevertheless, it would seem that counsel were not prepared to regard themselves as bound by the appellant's answers on this topic, because evidence was sought to be led on the matter from the first respondent; and the appellant's partner and her daughter were cross-examined on this topic. It appears that counsel for the respondents regarded their pursuit of the matter through other witnesses as legitimate lest they be accused of breaching the rule in Browne v. Dunn[3]. In this regard counsel were mistaken. Indeed, the events which occurred in this case are similar to those considered by the High Court in Ready v. Brown[4] where the plaintiff had claimed damages for an unlawful assault by police; the police alleging that he had been lawfully arrested for "offensive language". He was cross-examined as to why he had made no complaint, at the watch-house, of his arrest without cause. He gave reasons which the defendants were then allowed to refute by adducing other evidence. Barwick, C.J. said[5]:

[74]

(a) The suggestions made by counsel for the respondents to the appellant, during the course of cross-examination, that his partner was engaging in a fraud against the Social Securities Department.

(b) The proposition put to the appellant, during the course of his cross-examination by counsel for the second respondent, that the first statement of claim which had been issued on his behalf against only the first respondent was a "fraudulent claim"; and that he had only joined the second respondent by way of subsequent amendment to his statement of claim because he had found out, at a mediation conference, that the first respondent was uninsured. The first of these propositions was based on a document (Exhibit C) which had been prepared by the appellant's partner and a further typewritten document, typed by the first respondent's sister (Exhibit D), which had been signed by the first respondent in which the first respondent asserted that he had asked the appellant "to take the cable up the tree" and that the appellant had "no knowledge of the preparation or weakness of the tree". These documents were not of the appellant's making and, so the evidence suggested, had been prepared whilst the appellant was still in hospital. There was a dispute between the parties as to the circumstances in which the documents had come into existence, but it was far from clear that the appellant had knowledge of, or was responsible for, the use made of them. The statement of claim was, of course, a document prepared by the appellant's lawyers and it remained far from clear that the appellant was in any way concerned in mis-statements of fact which were made in it; nor is it apparent to me that anything so contained amounted to a "fraud" upon the first respondent. Furthermore, it seems to me that it was wrong to assert as an issue going to the appellant's credit, as the second respondent did, that the second respondent was joined to the claim because the appellant became aware "at mediation" that the first respondent "was uninsured". The joinder of the second respondent was a matter for the appellant's solicitors and it is, in my view, a fallacy to assert that the second respondent was only joined because the appellant had ascertained that the first respondent was uninsured. There was nothing in the evidence which suggested that the appellant was the person responsible for the joinder of the second respondent, or that he had himself determined to join the second respondent because he had ascertained that the first respondent was uninsured. On this appeal, Mr. Stanley, on behalf of the second respondent, sought to contend that this was a fair inference to draw, but I am far from satisfied that this was so.

(c ) Trial counsel for both respondents sought to assert at the trial that the appellant had willingly assumed the risk of injury. There was no evidence, in my view, to support the defence of "v_olenti_". The evidence given in respect of this matter was all one way. Each of the respondents asserted that they believed that the tree was "stable"; and that also was the substance of the appellant's evidence. On this appeal counsel for both respondents were prepared to concede that there was no evidence to support that defence and that it should have been withdrawn from the jury. The defence of "volenti" was ultimately left to the jury by the trial judge on the following basis:

[77]

On this appeal, it was contended by counsel for each of the respondents that this Court should conclude that, even if it was of the view that prejudicial material had been wrongly introduced into the trial, no substantial miscarriage of justice had occurred because, on any view, it was clear that the appellant's claim was bound to fail because there was no evidence upon which the jury could reasonably find that either respondent was negligent. It was put by respondents' counsel that the sole basis upon which the appellant had left his case to the jury on the substantive issue of negligence was "a failure by the respondents to warn that the tree was unsafe". I am not prepared to accept this submission because it seems to me, upon a perusal of the whole of the transcript, that this was not the sole basis upon which the appellant's case was founded or left to the jury. The appellant had asserted, both in counsel's opening and closing addresses, that the jury could find negligence on the basis that the respondents had employed an unsafe method of felling the tree; namely by cutting the roots of the tree prior to encouraging or permitting the appellant to scale the ladder for the purposes of affixing the cable. On behalf of the second respondent, Mr. Stanley contended that, even if this allegation was open and was relied upon by the appellant throughout the trial, this Court should still conclude that such allegation could not be made good against his client because there was no evidence upon which the jury could have concluded that his client was a party to the method adopted. Although the evidence against the second respondent was not as strong in this regard, as it was against the first respondent, I am satisfied that there was evidence upon which a jury properly instructed, could have found that the second respondent was a party to the method devised for the felling of the tree. There was evidence that he had been present on the day before the tree was ultimately felled, and on the day it was felled, and from which it could be inferred that he had discussed the method of the felling of the tree with the first respondent. The second respondent gave evidence to the effect that he could see no reason why the tree was unsafe when the ladder was used by the appellant. As he acknowledged, he was a person experienced in tree felling, and he was aware that the roots of the tree had been cut. Indeed, that evidence called into question a ruling which his Honour had made before the commencement of the trial in which he had excluded evidence which the appellant proposed to lead from a person claiming to be expert in tree felling, who was prepared to express the opinion that the method adopted for the felling of this tree - namely the cutting of the roots before scaling a ladder to attach the cable - was an unsafe method to adopt. It is true that the opinion of this so-called expert (who described himself as a "chartered professional engineer") did not set out his qualifications for expressing the opinion. This, however, was not the basis upon which his Honour excluded the evidence. His Honour ruled that the opinion expressed was not a subject for expert opinion but was a matter of fact which could be determined by the jury. The matter of the admissibility of the expert's opinion was not thereafter the subject of further discussion between appellant's counsel and the judge. It does, however, seem to me

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Judgment (81 paragraphs)

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