Connell v Sund & Anor [2004] VSCA 228

For the 2nd Respondent Mr. R.J. Stanley Q.C. Clements Hutchins & Co.

2. On 10 December 2000 the appellant, Dean Connell (who was the plaintiff in the court below) suffered serious injuries at premises owned by Daryl John Sund (the first respondent) situated at 2221 Maroondah Highway, Buxton, in the State of Victoria. At that time the appellant was a tenant of the first respondent living at these premises. Leonard Sund (the second respondent) was the father of the first respondent. He was at the premises at the time when the appellant suffered his injuries.

5. The injuries were sustained when the appellant climbed a ladder which had been positioned against a tall and heavy tree on the property so that a cable could be positioned for the purposes of felling the tree with the use of a vehicle. Whilst the appellant was on the ladder for the purposes of positioning the cable, the tree suddenly collapsed causing him to fall to the ground. He was taken to hospital by ambulance. He remained in one hospital or another for more than a month.

8. The appellant subsequently brought a claim against the first respondent by writ filed in the County Court on 13 June 2001. Primarily, his allegation against the first respondent was that his injuries were caused by the negligence of the first respondent in requesting and/or permitting the appellant to climb the ladder to position the cable without first informing him that the tree was likely to be unstable because its roots had been previously cut by the first respondent. Further, it was alleged that the method adopted by the respondent for felling the tree was unsafe and unsound because the roots of the tree should not have been cut prior to the positioning of the cable.

11. By an order made in the County Court on 27 August 2002 the writ and the statement of claim were amended so as to join the second respondent who had, so it was contended, participated in the arrangements made for the felling of the tree, and who had come to the premises shortly before the accident occurred for the purposes of supplying the cable and, so the appellant alleged, a four-wheel drive vehicle for use in removing the tree. The allegations of negligence made against the second respondent were much the same as those made against the first respondent.

14. The case was tried in the County Court between 19 and 29 May 2003. The respondents denied liability and the jury returned verdicts on 29 May in favour of the respondents, finding that there was no negligence on the part of either of them which was a cause of the injuries to the appellant.

17. The trial was bitterly contested on all issues; including an allegation that, in participating in the venture, and in climbing the ladder to affix the cable, the appellant had willingly assumed the risk of injury which he ultimately suffered. The respondents, through their counsel, strongly attacked the credit of the appellant and the credibility of the proceedings which he had initiated.

21. The plaintiff was approximately 40 years old at the time of the trial and at material times had resided with his partner, Shannon Hilder, and her two children at the property of the first respondent. The appellant and his partner had known the first respondent for many years. At all relevant times the first respondent also resided at the property.

24. On 22 November 2000 the tree on the property, to which I have referred, sustained some damage as a result of storms which caused it to lose branches. Some days thereafter (precisely when was a matter of dispute), the first respondent dug a trench around the base of the tree in order to cut the root system with a view to eventually felling it in the manner which I have described.

27. The appellant's evidence was that he had casually observed the presence of the trench but was unaware that the roots had been cut and had not spoken to the first respondent about the work which he (the first respondent) was performing in the trench. There was no direct evidence that the appellant had any knowledge of further cutting of roots of the tree performed on the day of, but prior to, the subject incident.

30. On the morning of 10 December 2000 the first respondent did "a final dig" about the tree and cut some further roots. He then tested the stability of the tree using a metal pipe. He called the second respondent (i.e. his father) who came to the premises with a cable and shackle to enable the tree to be pulled down. There was evidence from which it could be inferred that the second respondent's four-wheel drive vehicle was to be used for this purpose. There was also evidence from which it could be inferred that the two respondents had discussed and agreed upon the method for felling the tree.

33. The first respondent had procured a ladder which belonged to the appellant from the appellant's vehicle, and positioned it against the side of the tree. He was about to climb the ladder at about 9.30 to10 a.m., when the appellant came from the house. There was disputed evidence as to the appellant's knowledge of the respondents' plans and methodology for removing the tree, and disputed evidence as to the knowledge and involvement of the second respondent in its removal. Furthermore, there was disputed evidence as to whether the appellant was requested to climb the ladder by the first respondent or whether he volunteered to do so because of his knowledge of prior injury to the first respondent's back. In any event, it was the appellant who climbed the ladder.

36. He had climbed to a distance of some 20 feet above the ground in order to attach the cable when the tree suddenly collapsed taking him with it. The appellant's injuries were particularly severe involving a fracture of the left acetabulum, necessitating open reduction and internal fixation with screws and likely hip replacement surgery in the future; an effusion injury to his left knee; and a fracture of the right wrist. Because he is a painter by trade, his injuries are bound to have a significant impact upon his work capacity in the future.

(i) The verdicts of the jury to the effect that neither the first nor second respondent was negligent were perverse (grounds 1 and 2);

(ii) The trial judge erred in not discharging the jury upon the applications of the appellant, made frequently during the trial, because of the introduction of irrelevant and prejudicial material by the respondents (ground 3);

(iii) The trial judge was in error in failing to direct the jury that they should have no regard to the respondent's contentions that the original statement of claim was based on a fraud (ground 4);

(iv) The judge was in error in refusing to admit the evidence of the expert engineer whom the appellant desired to call (ground 5);

(v) As a consequence, the trial of the action miscarried (ground 8).

The other grounds alleged were inconsequential.

Mis-trial on account of irrelevant and prejudicial material put before the Jury; and his Honour's failure to discharge the Jury as a consequence (grounds 3 and 8)

47. One of the primary issues raised by the appellant's counsel in this Court was that the trial of the action had miscarried because of the introduction of irrelevant and prejudicial material by the respondents to the point where, so it was submitted, the jury was unable to bring an unbiased attitude to its ultimate task. The "proof of the pudding was to be found in the eating" so counsel submitted. A trial which should have taken no more than two to three days, having regard to the very confined fact situation, in fact lasted nearly two weeks. Further, it was submitted that, in the face of a strong factual case suggesting negligence of the respondents, the jury took about half an hour to return verdicts in favour of them, which are now said to be perverse; issues were pleaded and left to the jury which, so it is now said, should not have been pleaded; and there were substantial periods during the trial when the jury were excluded whilst multiple applications for their discharge were made by counsel for the appellant, and strenuously opposed by counsel for the respondents. In short, it was submitted to us that this was a case in which the plaintiff had not received his right to have his case fairly tried, free from prejudice and free from the intrusion of extraneous matters calculated to influence the jury from properly arriving at their determination[1].

50. In this Court counsel for the appellant took us through a large number of what he described as "particulars of unfairness" which had occurred at the trial and which, he submitted, made good this ground of appeal. Counsel for the first respondent challenged each of the particulars upon which the appellant relied and ultimately submitted that no miscarriage of justice had occurred. Although Mr. Stanley, senior counsel for the second respondent, informed the Court that he did not propose to comment on the appellant's submissions relating to "inappropriate questions" asked at the trial, he did, nevertheless, support the contention which had been made at the trial that the appellant had only sued the second respondent "as an after-thought, and because the first respondent was not covered by insurance". Counsel for both respondents submitted during the course of the appeal that, even if the Court was of the view that irrelevant and unnecessarily prejudicial material had been introduced on behalf of the respondents during the trial, this Court should, nevertheless, dismiss the appeal because the verdicts of "no negligence" were inevitable and, accordingly, no substantial wrong or miscarriage of justice had been occasioned to the appellant[2].

53. For reasons which I will hereafter outline, it is my opinion that the appellant has made good his ground of appeal that this trial miscarried as a consequence of irrelevant and prejudicial material being introduced into evidence by the respondents, and as a consequence of the trial judge allowing that material to be introduced, and permitting the trial to proceed before the jury after it had been introduced. Indeed, it seems to me that this trial was removed so far from its proper course as a result of the material, to which I refer, having been introduced that I am far from satisfied that the jury could have arrived at its verdicts free from its influence.

56. There were a number of irrelevant and, in my view, prejudicial matters introduced before the jury, prominent amongst them being the continued reference to the appellant's use of marijuana. Even from this distance, I must profess that I have difficulty in comprehending its relevance to the simple issues in this case - whether they be in respect of liability or quantum - and even its relevance to issues of credit. Yet there was a constant, and concerted, attack on the plaintiff concerning his use of marijuana, even to the point that he used the premises of the first respondent, more than a year after the accident, to grow it hydroponically. When these matters were first broached in the trial during the cross-examination of the appellant by counsel for the first respondent , the appellant's trial counsel objected on the basis that the material was irrelevant and prejudicial. Counsel for the first respondent said he would "make the relevance clear" and thereafter put it to the appellant that he had smoked marijuana on the night before the accident at the Buxton Hotel and again on the morning of the accident whilst he was in bed. These matters were denied by the appellant. Thereafter, when the appellant said that his recollection of the events of the happening of the accident had been clouded by his head injury, it was put by counsel for the first respondent that as the tree started to fall, he had ignored the warning by the second respondent to "jump". The questioning proceeded as follows:

Question "Effectively you're saying no opportunity to jump, is that right?" Answer: "I believe, and I've thought about it for a long time whilst I was in hospital and times after the accident - - By the time the thought process had happened, it was too late." Question: "I'll be putting this to the jury at the end of the case, and it's a matter for them, do you concede the possibility that if you had been smoking marijuana, your judgment had been impaired?" Answer: "Well, I hadn't been, so no." Question: "But do you concede generally when you smoke marijuana occasionally that your judgment is impaired?" Answer: "Not really, no." ... Question: "Do you concede that any part of your judgment, when smoking marijuana, is impaired?" Answer: "No."

60. When trial counsel for the appellant again objected to this line of cross-examination, on the grounds that it was irrelevant and that there was no pleading, either in support of contributory negligence or volenti, which suggested that the appellant's judgment had been "impaired on the day in question because he had been smoking marijuana either that morning or the night before or both ...", the respondents' trial counsel immediately made application to amend the particulars of "contributory negligence" and, in the case of the second respondent, "volenti" to include an allegation expressed in these terms:

"Acting when his powers of mental concentration and visual acuity were impaired by the use of cannabis."

Counsel for the first respondent said that he did not need to further particularise in the manner called for by his cross-examination - namely that the appellant had, as a consequence of cannabis use, "failed to jump when there was a call for him to jump" - because that was a question of fact and "amply covered by sub-paragraphs (b), (c) and (d) in the particulars of contributory negligence already pleaded. Thereafter, the following exchange took place between the judge and counsel for the first and second respondents:

His Honour: "But failing to jump ... in response to an express warning or indication, isn't that a ...?"

First Respondent's Counsel: "We're not drawing that nexus, not in response to the express warning but on my case, on the instructions I've got from [the first respondent] he holds the ladder ... "

His Honour: "But you've put it that he says that he called out to jump?"

Counsel: "That's right, the father said to jump ... Your Honour I do.

That's my instruction and I do understand that there will be evidence from my client, and presumably the second defendant ..."

Counsel for second respondent: "My instructions are very firm on that, ... my client, on the spur of the moment, said:

74. Counsel for the appellant persisted in his claim that these matters were not relevant, and that the amendments sought should not be allowed, but also submitted that the matters to which I have referred in the preceding paragraph were not matters that the respondent could deal with "in running". He said that he could immediately think of a potential four witnesses who would have to be called to disprove the allegations which were being made, namely that the appellant had smoked marijuana at the Buxton Hotel on the night before the accident, and again on the morning of the accident; and that he did not know what access his client would, at that stage, have to those witnesses. He said that, in his submission, it was "really quite unfair" for the appellant to have to meet such an allegation in the running of the trial; that he had opened the case without notice of the matter, and that it was not something that he could easily meet now the jury had been empanelled. He further submitted that trial counsel for the respondents had "nurtured" the allegation for some time without making application to amend their pleadings; and requested further time to determine the course of action which he should take. His Honour then said:

78. Thereafter, without the "issues" being revisited, counsel for the first respondent put the following matters to the appellant:

Question: "We are required to put the evidence that the defendant proposes to call in this case to you ... and I've mentioned the name of Phil Carrigg. Do you know him?"

Question: "Is he someone that you have a smoke with?"

Question: "When I ask you about smoke, I mean is it someone you smoke marijuana with?"

Answer: "Yeh, I used to get it off him so of course I'd have a smoke with him."

Question: "If ... he gives evidence in this case that he's with you on Saturday 9 December 2000, do you recall being in his presence?"

Question: "So, if he gives that evidence, you say it will be false evidence, do you?"

Question: "If he gives evidence that he's with you at the Buxton Pub on Saturday 9 December 2000 and that you're drinking alcohol and smoking marijuana, you don't accept that?"

Answer: "I don't accept that, no. ... I can prove where I was on that night ..."

102. Immediately after this line of cross-examination relating to the events of the night before the accident, trial counsel for the first respondent, asked the appellant whether he knew anything about "hydroponics", to which the appellant answered "No". It was then put in detail to the appellant that he had taken from the Buxton Hotel a "container" in the form of a "crate like structure" and had used it as a facility for establishing a hydroponic system for the nurturing of 12 marijuana plants. It was further put that this had generated an excessive bill from the local electricity supplier for power used. All of this was denied by the appellant. He said that he used the facility for storage purposes and that it was used as a "cubby house" by his children.

105. Following these questions, the appellant's counsel submitted to the judge that, by reason of the amendments which were sought by counsel for the first respondent, the further hearing of the trial should be adjourned because there were a number of "potentially relevant witnesses" from whom he would need to take instructions and who could not be "tracked down" immediately. They included witnesses whom the appellant claimed to have been with on the night before the accident. He again submitted that he had been "put in an impossible situation" in being required to meet the allegation "in running". He submitted that the jury should be discharged and that the trial proceed before the judge. Counsel for the first respondent opposed that course. He submitted that the late amendment of particulars of contributory negligence could not create an "insurmountable injustice" to the plaintiff's case. Counsel for the first respondent went on to submit to the trial judge:

"The plaintiff, your Honour will recall, concedes that on some Sundays he smoked marijuana, but not this Sunday. We're in the common law, this is a robust jurisdiction."

"But the plaintiff wishes - ... that there are witnesses who can support the fact as to whether or not he was taking marijuana on the night before or on the morning, I assume."

"Yes, your Honour, I heard that. If your Honour is minded to discharge the jury and grant an adjournment because the plaintiff wants witnesses in respect of matters that we say are within the broad compass of the defence ..." His Honour: "How does he know that you `re going to allege that he was affected by marijuana on the morning of this accident unless its ... in the particulars." Counsel: "Your Honour, because the truth of the matter lies within the knowledge of the plaintiff."

113. Following the exchange to which I have referred in the preceding paragraph, counsel for the appellant again renewed his application for the jury to be discharged saying that he was concerned that:

"... there's some real injustice being done to [the appellant] in the course of the running of this case by a number of things that have occurred. One is the fact that he is now met with this allegation of contributory negligence in relation to marijuana which I might have been able to deal with in opening [if] he was forewarned in relation to it. ... Then there are other matters in relation to the amount of credit material my learned friends have been endeavouring to use against the plaintiff, including the allegation that he has been cultivating marijuana with hydroponics. ..."

His Honour, without calling upon counsel for the respondents to reply, said that he rejected the application to discharge the jury. He noted that:

"The only relevant issues are the allegations as to the use of marijuana on the day of the accident or the evening before the accident ..."

and that those matters were not of sufficient importance for the jury to be discharged.

120. Thereafter, trial counsel for the second respondent took up the attack. He put it to the appellant that he knew the man, Carrigg, and said:

"Why not admit that he's your dealer. Was he your dealer?"

"No, he wasn't a dealer. I just got some off him occasionally."

"If you're smoking every day you might only need ... "

"I wasn't smoking every day, I don't smoke every day. It's been alleged, but I don't."

130. Shortly after this exchange the Court adjourned for the day; and on the following morning counsel for the appellant renewed his application that the jury be discharged and that the matter proceed before his Honour sitting alone. On this occasion the application was multi-faceted. Firstly it was based on the proposition that counsel for the second respondent had put it to the appellant that he had only amended his claim to join the second respondent because, "at mediation", the appellant had realized that the first respondent was uninsured. (This is a matter to which I shall return.) Furthermore, counsel submitted that the matter of "marijuana" had got out of hand with allegations now being made to the effect that the appellant was hydroponically growing or cultivating marijuana. Counsel for the appellant said:

"Your Honour, having heard my learned friends, it is, in my submission, more clear than ever that what's happening in this trial is that my learned friends are assiduously working to divert the jury from its true task. The facts in this case ... are fairly straight forward. A tree has fallen down with the plaintiff on it and the plaintiff has been injured and ... there is a dispute as to whether the second named defendant contributed to it and ... whether the first defendant asked the plaintiff to go up or whether the plaintiff volunteered - that's the real issue in this case. Insurance is not, and should not be, an issue in this case ...I mean there was an estimate given of this trial of some 5 to 7 days and I am ... trying to stem this, trying to address just the attack that has been made so far ... There are a further four witnesses. ... In addition ... we have other irrelevant matters being introduced such as growing marijuana hydroponically ... We have the allegation of marijuana smoking and what they were doing the night before. It's all going way off the point. ... If it is not done that way [i.e. by judge without jury] not only will the jury be here for a long time by the time these matters of peripheral relevance are put and then to the extent that the plaintiff can and needs to rebut them, are rebutted. But at the end of it all, it's going to be very hard for the jury to keep its eye on the ball, i.e. ... What is the role, the responsibility of the two [respondents] who admit they were there, who admit the tree fell, who admit they were trying to pull it over at the time. In my submission your Honour, because of the way the defendants have gone about this, its getting to a stage where the plaintiff is not going to get a fair trial on those issues."

His Honour said that he would "reserve his ruling" until the following morning and further adjourned the matter. At that stage, the trial judge had not finally dealt with the respondents' application to amend their defences. He noted that they had not yet given the appellant's counsel a copy of the amended pleading. His Honour asked counsel for the appellant whether he had "anything further to say", to which counsel replied that he had "no more to add than what I said yesterday", but that he had taken it from his Honour's responses to him that the judge was going to allow the amendment, although he maintained his objections to it. His Honour then adjourned the trial until the following day.

135. On the next morning counsel for the appellant persisted with his application that the jury should be discharged and that the trial should continue before his Honour alone. He further told the judge that he had "just at this moment" received the proposed amended defence of the second respondent. He noted that counsel for the second respondent wished to incorporate the "marijuana defence" into the defence of "volenti". He again submitted that if the amendment was permitted, and the jury were to be retained, the appellant would be "seriously disadvantaged" in as much as he (counsel) did not have the chance to deal with it in his opening address.

138. In ruling that he did not propose to discharge the jury, his Honour said nothing further about the allegations of "marijuana use"; but said that it was a relevant issue for the jury to consider whether the appellant had formed a belief that the first respondent was not insured, and had - for that reason - decided to join the second respondent in the proceedings. The likelihood that the appellant had formed such a belief, his Honour said, could be influenced by evidence as to whether or not the first respondent had insurance. In those circumstances the insurance issue had not been raised "as a matter of prejudice" but was more directly related to the specific issues in the proceedings. He went on to say that he would need to direct the jury that they should not allow the insurance issue to have an impact on their consideration of the issues of negligence, liability, or the award of damages. He further indicated that the "mediation proceedings" were not to be placed before the jury in any way whatsoever. Following his Honour's ruling, counsel for the first respondent formally made an application to amend the particulars of contributory negligence in the manner to which I have previously referred. Counsel for the second respondent made a similar application to amend the defence of the second respondent, and his Honour ruled that those amendments be allowed. Thereafter, counsel for the second respondent continued to cross-examine the appellant putting to him that he was drinking and smoking marijuana at the Buxton Hotel on the night before the accident with the man Carrigg, allegations which the appellant denied. The appellant said that on the night before the accident he was having dinner at the Cumberland Hotel in Marysville with Shannon Hilder, her children and two of their friends from Melbourne.

141. Following the amendments to the pleadings and the appellant's departure from the witness box, counsel for the respondents continued to explore the plaintiff's "marijuana habits" with other witnesses. Even the appellant's local medical practitioner was asked questions generally about "cannabis addiction" and the possible problems which it creates including "altered sense of time and space and loss of co-ordination". However, he said that the appellant had never been treated by him for any such problem nor had he discussed it with him.

144. Because of the issues raised by the respondents concerning the appellant's movements on the night preceding the accident, evidence was led from Miss Hilder, one of her children and the two friends from Melbourne (namely Mr. and Mrs. George) as to what they were doing on the night before the accident; and specifically whether they (and, particularly, the appellant) were at the Buxton Hotel. Their evidence was that they had not been to the Buxton Hotel; that they had been at the Cumberland Hotel, Marysville, until 11.30 p.m. and that, thereafter, the appellant, Hilder and her children had returned home. This evidence was led to rebut the assertions made by the respondents, and incorporated within their amended pleadings This, in turn, led to further cross-examination by the respondents concerning the appellant's marijuana habits. Miss Hilder was asked questions about hydroponic cultivation of marijuana by the appellant; an allegation which she denied. Even the friends from Melbourne - the Georges - were not spared. Mr. George was asked whether he had ever seen his friend (meaning the appellant) smoking marijuana, to which he replied "Never". Miss Hilder's daughter, Melissa, was asked about the alleged "12 marijuana plants" growing in the container at the back of the house; an allegation which she denied. Then, of course, the first respondent, Daryl Sund, gave evidence of the plaintiff's marijuana smoking habits, the fact that he had seen the plaintiff in bed at 9.30 on the morning of the accident smoking a marijuana cigarette; and then gave evidence that he had "seen the hydroponics" in the container at the back of the house. Appellant's counsel objected to these questions on the ground that they were not admissible, to which the first respondent's counsel replied:

"If I'm not Browne v. Dunn'd, your Honour, I'll move on."

Notwithstanding, counsel asked further questions eliciting from the witness that he had seen "plants growing". Finally, Mr. Carrigg was called by the second respondent, to give evidence that on the night before the accident he had been drinking and smoking marijuana with the appellant. He said, in examination in chief, that, on the night before the accident, he had been at the Buxton Hotel with "other people and with [the appellant]". When asked whether he was doing anything but drinking with the appellant, he said "We would have gone out and shared a ... joint". When it was put to him in cross-examination that a number of people had given evidence that the appellant and others did not leave the Cumberland Hotel until 11.30 p.m., he said "That would surprise me". He said that he was friendly with the first respondent and was living at the first respondent's house at the time of the trial. When it was suggested to him that he was simply wrong about his evidence, he replied :

"I would say I am not. I'm sure he was at the hotel that night."

When it was further put to him that he might be "confusing the night that you think you had the smoke and a drink ... with Dean with another night before the fall", he responded "It could have been".

151. 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."

154. 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]:

"With great respect, in my opinion the fact that the plaintiff didn't complain at the watch-house was not relevant to the issue of whether or not, prior to arrest, he used the offensive words attributed to him and, in my opinion, the defendants would not have been entitled to establish by their own evidence his failure to complain. Whether or not the fact that his failure to complain in the circumstances bore upon the plaintiff's credit was a question to which the trial judge would need to give attention. ... I cannot think that the failure of an arrested man to complain of having been arrested necessarily bears upon the credit to be given to his account upon some issue arising in the trial."

"The evidence which ought to have been rejected in this case clearly tended to, and quite likely did, divert the attention of the jury when considering the real issue. It set up a false issue with which the trial ought not to have been encumbered."

160. In this case the jury were, likewise, "encumbered" with what I have described as the "false issue" which was, as it seems to me, calculated to divert the tribunal's attention from the real issues. Indeed, counsel for the first respondent at the outset of his address told the jury that it was his submission on behalf of his client that "a web of deception" had been constructed by the appellant and that it was going to be a major task of the jury to critically analyse and determine who was telling the truth. Again, at the commencement of his address to the jury, he told them that "believeability or credit" was the "central underlying issue in the background" of the case and that the jury "ought not to accept anything without corroboration of what [the appellant] has told you. So we ask you to reject [his evidence] out of hand". Counsel for the second respondent made similar submissions to the jury. In my opinion, by the time the appellant's evidence had concluded it should have been patently apparent that fairness dictated the discharge of the jury because of the prejudicial material which had been placed before them. Unfortunately, the trial judge did not see it that way because he regarded the material to which I have referred as relevant, either to the issues in the case, or to the credit of the appellant. In my opinion, his Honour was in error. It seems to me that the imputations and assertions made by the respondents' counsel relating to the marijuana use by the appellant were calculated to create such a degree of prejudice against him that "the judge ought not to have entertained confidence that any instruction by him would remove the high degree of mischief introduced into the proceedings ...".[7] For the reasons given, it is my opinion that the trial miscarried, and that there will have to be a re-trial.

163. There was other material of a prejudicial and irrelevant kind introduced into this trial which compounded its unfairness. The following are examples:

(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:

"Did the plaintiff fully appreciate the risk involved in climbing the ladder and did he freely consent to that risk?"

The trial judge told the jury that "if the answer to that is yes, then that defeats in total the plaintiff's claim". That direction, in my view, was in error because it was not the appreciation of the risk in climbing the ladder which was the relevant risk in determining the issue of "volenti", but the appellant's appreciation and assumption of the risk that, in doing so, he was likely to suffer the injury which befell him. Furthermore, it is not possible to determine whether the jury imported its views in respect of this defence into its determination that negligence had not been established against either of the respondents.

171. 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

that the evidence of the second respondent demonstrates that the method adoptedby the respondents for the felling of this tree, and its safety, was or could be, relevantly, the subject of expert evidence. This matter was raised as a ground of appeal taken before this Court. It is unnecessary, because of what has already been said, for the Court to determine it. Nevertheless, because there will have to be a retrial of this action, the matter can be agitated at the retrial.

175. For the reasons which I have given, it is my view that this appeal should be allowed, the judgments entered below should be set aside, and that there should be a new trial.

[1] Cf. per Street, C.J. in Croll v. McRae [1930] 30 S.R. (N.S.W.) 137 at 143.

[7] Smout v. Smout [1989] VicRp 74; [1989] V.R. 845 at 851.