Dairy Farmers Co-operative Milk Co Ltd v Acquilina

This is an appeal from the judgment of the Full Court of the Supreme Court of New South Wales (Herron A.C.J. and Macfarlan J., Hardie J. dissenting) setting aside the verdict of a jury in favour of the appellant, which had been the defendant in an action in which the present respondent was plaintiff, and ordering a new trial. The notice of appeal to the Full Court listed twenty-eight grounds but the one upon which the majority decided in favour of the unsuccessful plaintiff was that at the trial evidence which the plaintiff's counsel had sought to elicit from a witness Beccaris had been wrongly rejected.

The action was a claim for damages for negligence by a worker against his employer for failing to clean up the steel floor of a cool room in which the plaintiff worked moving cases containing bottles or cartons of milk. His case was that on the night of 12th November 1956 milk which had been spilt and oil which had dropped from trolleys upon the floor had been allowed to accumulate so that the floor became slippery, causing him while at work to slip, fall and suffer injury to his back. That this was the plaintiff's real case was hardly apparent from the declaration or from the very unusual statement of particulars which mentioned a miscellany of some twenty acts or omissions ranging from "no warning" to "too many obstructions and obstacles near the plaintiff's work" but did include the following statements relating to the floor - "floor too slippery and otherwise unsafe to work upon", "floor too greasy and oily", "allowing soap and other slippery substances to accumulate on floor", "allowing milk and other liquids to accumulate on floor thus rendering it slippery".

In the course of the plaintiff's case, evidence was given that the steel floor of the cool room did become slippery from spilt milk and this could be effectively washed away by hoses. Thus the plaintiff's own evidence, given without objection, included the following: - "Q. What happens to the milk when it spills on the floor? A. It sticks on to the floor. Q. Does it have any effect? A. Yes, it is more slippery that way. Q. What was the state of the floor at the time that you fell? A. There was a lot of milk and it was very slippery. Q. What effect does hosing have on the milk and oil on the floor? A. It cleans the floor. Q. And as far as slipperiness is concerned what is the effect on the floor after the hoses have been used? A. It is not slippery then because it is clean".

It also became clear that the defendant employed men during the day whose duties included hosing the floor of the cool room in question but it did not do so at night. When night hosings occurred, they were done by men employed for other tasks and only when authorized by the foreman. There was also evidence that on the night when the plaintiff allegedly slipped and fell (i.e. 12th November 1956) the men were busy and the foreman did not authorize washing down the floor. There was, therefore, evidence upon which the jury could find, if it saw fit to do so, that upon the night in question the floor of the cool room was slippery and that it was so because of lack of care for which the defendant was responsible.

In support of the plaintiff's case the witness Beccaris was called and expressly put forward as an expert. He described himself as a refrigeration engineer with cool-room experience and gave evidence of his qualifications as a refrigeration engineer. He also gave evidence at the date of the trial (i.e. April 1961) he was employed for eight or nine months by Fresh Food and Ice Co. Ltd. - a company carrying on the same kind of business as the defendant - in the capacity of a refrigeration engine driver installing and maintaining plant at these premises. A number of questions were asked about the effect of the spilt milk on floors, which were objected to and rejected, perhaps upon the footing that if evidence of this sort was a matter for an expert at all, it was not for an expert qualified as a refrigeration engineer. Finally, however, after a good deal of skirmishing, the following questions were asked and answered: - "Q. What experience had you had as to the effect of spilling milk on the floor - do not tell us the results for the moment, until His Honor rules, but have you seen it or experienced it? A. Yes, about six or seven years. Q. Do you in fact know the effect of spilling milk on to a steel floor? A. Yes. Q. What is the effect? (Objected to; allowed). A. The effect of spilling milk on a steel floor creates a very greasy surface and you slip very easily".

Then followed questions of which the following are typical: - "Q. What is the recognized method of dealing with the spillage of milk on a steel floor? (Objected to; rejected). Q. If milk is spilt on a floor of a freezing-room, is there a recognized method or practice of removing it? (Objected to; rejected)".

These particular questions may have been rejected because of their form. They may also have been rejected because they related to the existence of a recognized method or practice in 1961 rather than in 1956. The examination then proceeded to existing practices at the premises of the witness's employer to avoid spilt milk making the floor slippery. These questions were in general objected to and rejected. The ground upon which his Honour rejected the questions does not appear but it appears that many of them were too wide in that they related to the floors of the premises generally e.g. "Q. Do not give details for the time being, but when and if milk is spilt in your present location, what are the methods adopted to deal with the situation? (Objected to; rejected). Q. What is done as a matter of practice at the Fresh Food where people might have to walk, if milk is spilt in the place? (Objected to; rejected)".

Further questions were, however, confined to steel floors: thus the following questions were asked: - "Q. Confine yourself exclusively to any portion of Fresh Food where there is a steel floor upon which milk is spilt. What do they do? (Objected to; rejected)".

The ground for the rejection of this last question does not appear but presumably it was because either it was not confined to the floors of a cool-room or it did not relate to 1956. The examination concluded as follows: - "Q. When milk gets down to the freezing point does it tend to get more or less slippery? (Objected to; allowed). A. When milk gets down to freezing point it sort of thickens and creates a greater lubricating factor; therefore it becomes more slippery. Q. When it gets into that stage, is that after it has been on the floor for some time? A. That is after it has been on the floor for some time. Q. To get it in that stage, is any additional step necessary to be taken? (Objected to). A. Yes, warm water to shift it off the floor. Q. You said you could remove it by pouring hot water on it? A. Using warm water or hot water. Q. I gather from that reply that until it gets hardened or into the semi-frozen condition you could get at it with ordinary water up till that stage? A. Approximately; yes. Q. Would this be a fair way of putting it, that the colder it gets the more you would want to have the water warm? A. The colder it gets, the harder it would be to remove".

The Full Court considered in general that the evidence of Beccaris which was rejected should have been admitted. Macfarlan J., with whose judgment Herron A.C.J. expressed his concurrence, having referred to the learned trial judge's ruling that Beccaris could give evidence on matters upon which he was qualified to speak as an expert refrigeration engineer, said that he could also speak "on what he had seen if in accordance with legal principle evidence of such a kind was admissible". His Honour then indicated two points upon which it was contended his evidence should have been admitted. The first was "the hazards due to the properties and general characteristics of milk spilt in cold or freezing rooms and the methods that could be or were adopted for overcoming the consequences of this spillage". As his Honour said, this evidence was given. The second was as to the practice generally adopted to overcome the effect of the spillage of milk. His Honour, after referring to Beccaris's evidence that milk spilt upon a steel floor makes it slippery, said: - "The witness was then asked a number of questions as to the recognized methods of dealing with the spillage of milk on a steel floor, and what is done to avoid milk making the surface slippery. This evidence was rejected. The witness was also asked whether there was a recognized method or practice of removing milk spilt on the floor of a freezing room, and this evidence was rejected. He then gave evidence, without objection, that the Fresh Food & Ice Company Limited, the place of his then employment, was a concern much the same as the defendant and that broadly its operations consisted in the storing and distribution of milk in bottles and cartons. He was then asked, "what is done as a matter of practice at the Fresh Food & Ice Company where people might have to walk, if milk is spilt in the place?" and that evidence was, on objection, rejected". About this there are two observations to be made. The first is that the particular question to which his Honour last referred was properly rejected, for it was altogether too wide. Secondly, in so far as the evidence that it was sought to introduce was that it was a practice of the industry to have floors effectively washed down when necessary by those employed for the purpose of doing so, that evidence was before the jury and the difference between the defendant's own practice during the day and at night was obvious; in so far as it was sought to go further and prove some particular practice in a different although comparable factory some five years after the event, it was inadmissible.

A careful survey of the whole of Beccaris's evidence has satisfied us that, notwithstanding the rejection of particular questions which might have been admitted, no evidence was eventually rejected that was admissible and could, in the circumstances, have had any effect with the jury. Having reached this conclusion, there is nothing in the decision of this Court in Balenzuela v. De Gail [1] that requires the granting of a new trial on the ground that evidence was wrongly rejected. It appears to us that this decision was misunderstood by the Full Court in this case, as it was in the case of Mann v. Dumergue (unreported). Balenzuela v. De Gail [1] does not warrant the statement of Herron A.C.J. that "when relevant evidence is rejected on the authority of Balenzuela v. De Gail [1] I cannot see how a new trial can be avoided" nor that of Macfarlan J. that "where relevant evidence has been wrongly rejected there must be a new trial of the action". What is clear from every judgment in Balenzuela v. De Gail [1] is that a new trial ought not to be ordered if the Court is satisfied that if the rejected evidence had been received it could not have affected the jury's verdict. In two cases since Balenzuela v. De Gail [1] this Court, while considering evidence was wrongly rejected, refused to order a new trial: see McLellan v. Bowyer [2] and Mann v. Dumergue [3] . The law laid down in Balenzuela v. De Gail [1] is no different from that laid down in Crease v. Barrett [4] decided more than one hundred years earlier. Here the plaintiff's case was that spilt milk makes floors slippery and washing them down with a hose cleans them and, whereas the defendant did employ men to hose down during the day, it did not do so at night. That case was proved up to the hilt and was not disputed. Nevertheless the jury, for reasons which seemed good to them, found for the defendant in a case of which the Acting Chief Justice said: - "The defence was that the plaintiff has not suffered any accident or fall, his condition being solely related to a congenital condition of his back, and that any exaggeration of it was merely due to the cold conditions under which he worked. As the plaintiff was alone when the accident was alleged to have happened, and as it was said that he had given contradictory versions of the cause of his condition to medical men, the jury were invited to discard his account and to reject the allegations as to unusual slipperiness of the floor and want of cementing or cleaning methods as irrelevant. It may well be that they took this view, and found a verdict for the defendant but this is pure speculation on my part. On reading the transcript, I was rather of the opinion that this was a typical case for workers' compensation if any redress was open to the plaintiff, and not one for damages at common law".

1. (1959) 101 C.L.R. 226. 2. (1959) 101 C.L.R. 226. 3. (1959) 101 C.L.R. 226. 4. (1959) 101 C.L.R. 226. 5. (1959) 101 C.L.R. 226. 6. (1961) 106 C.L.R. 95. 7. Unreported - H.C. 20th May 1963. 8. (1959) 101 C.L.R. 226. 9. (1835) 1 C. M. & R. 919 [149 E.R. 1353.]

Before leaving the matter of Beccaris's evidence, we think it is desirable to observe that no notice should have been taken of his affidavit dated 11th December 1961 which was filed on behalf of the present respondent in the Supreme Court before the hearing of his appeal there and in which Beccaris deposed to cleaning methods adopted at the premises of the New South Wales Fresh Food and Ice Co. Ltd. and the types of floors to be found and the cleaning methods adopted prior to November 1956 in refrigerating rooms in Queensland and New South Wales.

Many of the other points raised were disposed of in argument and here we only want to refer to two.

His Honour was asked to permit a witness Sammitt to give evidence through an interpreter. What his Honour said as to this in the course of Sammitt's examination in chief was as follows: - "I feel that his English so far has been good enough to give evidence. It may be the interpreter can come forward and if there is any particular word he does not understand, you can ask me and I will clear it up through the interpreter". From time to time thereafter the interpreter was used for the purpose his Honour indicated. It was contended before us, however, that it was an error not to permit the witness to give evidence in his native tongue. The general proposition that a witness is entitled to give evidence in his native tongue is one that cannot be justified. It appears to us that in adopting the course which he did, his Honour was not only exercising his discretion but was exercising it wisely. We agree with the decision of the Full Court of the Supreme Court of New South Wales in Filios v. Morland [1] that there is no rule that a witness is entitled as of right to give evidence in his native tongue through an interpreter and that it is a matter in the exercise of the discretion of the trial judge to determine on the material which is put before him whether to allow the use of an interpreter and the exercise of this discretion should not be interfered with on appeal except for extremely cogent reasons.

Finally, in the course of the cross-examination of Dr. Streimer, cards recording entries made by him in relation to the plaintiff's visits to him - when he was told how it was that the injuries occurred - were produced and on these he was cross-examined. These cards were subsequently tendered by counsel for the defendant and admitted over the objection of counsel for the plaintiff. Without going into unnecessary detail, what happened was that the witness swore that he had made notes on the cards of what he was told and had refreshed his recollection therefrom before giving evidence. When he was asked to read from one of the cards, he said that there was written thereon that the plaintiff said that he "fell on the 12th of the 11th, 1956". Challenged, he said that the word was not "fell" but "slipped". The questions and answers were as follows: - "Q. Will you show me where it is written here, "He says he fell"? (Document handed to witness). A. I must apologise. The word "slipped" - Q. Do not apologise. It is not written there? A. No. Q. The word is not written there? A. Not "fell", but "slipped". Q. The word "slipped" is written there? A. Yes. Q. Is that what you say? Where is the word "slipped"? A. Down in the corner at the top. Q. Do you tell His Honor and the gentlemen of the jury that that word which is written at an angle of about 45 degrees is "slipped"? Is that what you say? A. Yes. Q. And you swear it? A. Yes. I remember that - Q. You swear that that is the word "slipped"? A. Yes".

It appears upon inspection of the card clearly that the word to which the doctor referred was neither "fell" nor "slipped". Alterations in different ink also appeared on the card. Counsel for the defendant suggested to the jury that it was "stooped" but that does not clearly appear. Despite the argument to the contrary we have no doubt that, in the circumstances narrated, the card was admissible and the jury were entitled to look at it for the purpose of deciding what credence to give to the evidence of the witness. In the way in which the question of what was written on the card arose it is unnecessary to consider whether the card became admissible under the Evidence Act, s. 54, as an earlier inconsistent statement; here it was simply a case of allowing the jury to see the very word which the witness swore that he had then and there read to them from a paper in his hand. That it was a document in the handwriting of the witness was immaterial. What was important was that the witness had purported to read a particular word both as "fell" and as "slipped", and the jury were entitled to look at the written word to determine whether he had misread it to mislead them. We do think that in the course of his summing up the learned trial judge was at one point in error in telling the jury that what was written upon the card might help them to decide whether the plaintiff's evidence of the occurrence giving rise to his injury was the truth of the matter but, almost as soon as his Honour had done so, he added, "the law says that this evidence of a previous inconsistent statement by Dr. Streimer, in this case can be looked at only to cut down the evidence of that witness and is not evidence in fact of the particular issue, so that you can use this card to cut down the evidence of Dr. Streimer". It was perhaps because of this retraction that no objection was taken by counsel for the plaintiff to the earlier observations; but whether this was so or not the fact that no objection was taken precludes reliance upon them here by reason of O. XXII, r. 15, of the Rules of the Supreme Court.

We are therefore of the opinion that the Full Court was in error in deciding as it did and we have come to the conclusion that the other grounds relied upon to justify the order for a new trial have not been made out.