DAY v PERISHER BLUE PTY LTD

CATCHWORDS: Practice and procedure - conduct of witnesses - conduct of solicitors - coaching of witnesses

Darrel Justin Day - Appellant PARTIES: Perisher Blue Pty Ltd - Respondent

M J McAuley - Appellant COUNSEL: R E Montgomery - Respondent

Low Doherty & Stafford - Appellant SOLICITORS: Dibbs Barker Gosling - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40936/03 DC 7158/01

SHELLER JA McCOLL JA WINDEYER J DAY v PERISHER BLUE PTY LTD This is an appeal from a judgement of the District Court of 1 October 2003 which dismissed a claim made by Day, a J-Bar operator in the ski fields at Guthega, who alleged he was struck by an errant skier in the course of his employment as a consequence of his then employer, Perisher Blue Pty Ltd, breaching its duty of care to Day by failing to provide a safe system of work.

During the course of the trial, it emerged that the witnesses for Perisher Blue Pty Ltd, prior to the trial, had communications with each other and others, including the solicitors for Perisher Blue Pty Ltd, with respect to the form and content of the evidence they were to provide.

While cross-examination revealed the general nature of the communications between the witnesses and others, there was no cross-examination directed at the reliability of the evidence in light of such communications.

The issues before the Court of Appeal included: (i) whether the trial judge erred in accepting the evidence of witnesses for Perisher Blue Pty Ltd in light of the conduct of the witnesses and the solicitors; and

(ii) whether Perisher Blue Pty Ltd breached its duty of care to Day.

Per Sheller JA (McColl JA and Windeyer J agreeing): 1. It is long been regarded as proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. What was done was improper.

2. While the communications opened up areas for cross-examination of the defendant's witnesses which were not pursued, and while it was arguable that the various witnesses' credibility would have survived what was revealed in the case, the failure of the trial Judge to address the attack on the credibility of several of the defendant's witnesses, whose evidence the trial Judge accepted, leads to the conclusion that the trial Judge failed to have regard to critical evidence. Accordingly, the verdict and judgment should be set aside and a new trial ordered.

3. In circumstances where a new trial is ordered it is undesirable to address the other grounds of appeal.

ORDERS 1. Appeal allowed; 2. Set aside the verdict and judgment in favour of the defendant of 1 October 2003; 3. Order a new trial of the proceedings; 4. The respondent/defendant to pay the plaintiff's costs of the hearing before his Honour Judge Patten; 5. The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The defendant's solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40936/03 DC 7158/01

SHELLER JA McCOLL JA WINDEYER J

Monday, 11 April 2005 DAY v PERISHER BLUE PTY LTD Judgment 1 SHELLER JA:

The plaintiff, Darrel Justin Day, appeals from the decision of his Honour Judge Patten given in the District Court on 1 October 2003 dismissing the plaintiff's claim against the defendant and respondent, Perisher Blue Pty Ltd, and entering a verdict and judgment for the defendant. The defendant was the operator of a ski resort at Guthega. One of the ski lifts at the resort was known as the Cowpasture J-Bar. The approach to the load area of the J-Bar was through a queue race that comprised three lanes, defined by rope lines supported by rubberised orange bollards. Each bollard basically rested on its own weight but some stability was provided by metal studs which protruded from the bottom and penetrated the snow. The queue race provided a defined area for assembly and queuing for the lift and ensured that passengers proceeded to the load point in an orderly fashion, each in their proper turn. One lane was designated as the ski school lane. It was closest to the ski slope and at the most favourable angle for approaching skiers. Entry to the other two lanes required an approaching down hill skier to negotiate a more acute angle. 2 The plaintiff claimed that on or about 7 August 2000 in the course of his employment by the defendant as a lift operator on the Cowpasture J-Bar and while loading skiers onto the J-Bar, he was struck by a skier, who had come down an adjacent slope and skied through the ski school line into the plaintiff at speed, injuring the plaintiff. The plaintiff claimed that the defendant failed to exercise reasonable care for his safety which resulted in his injury. 3 One of the defendant's defences was that the accident did not occur at the time or place alleged. This defence failed and it is unnecessary to consider it further.

Trial judgment 4 In considering whether the plaintiff did in fact sustain an accident as he claimed Judge Patten said he thought the plaintiff was quite an impressive witness who gave a straightforward unvarnished account of what happened in which the Judge detected no sign of exaggeration. His Honour said that he thought it more probable than not that the plaintiff was struck by a wayward or out of control skier as he claimed. But he added: "This again, however, begs the question whether the circumstances of the accident were such as to indicate that the defendant was in breach of its duty of care."

Judge Patten rejected the evidence of the plaintiff's witness, Mr Tony Ashbolt, that for the 2002 season, after the accident, the configuration of the queue lines at the J-Bar was changed. 5 The trial Judge turned to the defendant's case. Mr Chris Bevin, a patroller who arrived at the scene shortly after the accident, said he was a professional ski patroller each winter who had worked for the defendant for ten years as both a ski lift operator and patroller. He said he had one season's experience in Canada as a lift attendant and had skied in the USA. He said that every lift he had used, whether in Australia or overseas had designated ski queue lines and that in all his experience he had never heard of an injury to a ski lift operator as a result of a collision with a guest skier. Mr Bevin referred to the display, on the slope approaching the J-Bar queue, of a large yellow sign with the words "Please Go Slow". Persons transgressing such signs or the Alpine Responsibility Code, if detected, were spoken to and warned. 6 Another employee of the defendant was Mr Jai Palmer, who, during the 2000 season, was engaged in a supervisory role. He said that since the 2000 season there had been virtually no alteration to the configuration laid down by the defendant for the queue lines set up at the J-Bar except that it had been moved down the hill a couple of degrees more. There was now a blue net that ran around the edge of the ski school. This was to stop people ducking under the ski school rope. Mr Palmer said that in all his experience of working for the defendant in the snowfields he had never heard of another incident where a lift operator claimed to have been injured by a skier, skiing through the ski school line. 7 Another experienced employee of the defendant, Mr Darryl Dean, told the court that the J-Bar lift operator, facing the queue lines, would have a clear unobstructed view of the ski slope for at least 200 metres, well past the "slow" sign which he said was in the middle of the run. He also gave evidence about the noise which an approaching skier makes. Like Mr Bevin and Mr Palmer, Mr Dean said that he had never heard of another instance where a lift operator had been struck by a skier coming through the ski school line. 8 The defendant called an expert, Mr Gow, who said he had maintained an active consulting practice in matters relating to the ski industry since 1983. The Judge regarded him as eminently well qualified to express his opinions and a very impressive witness. In his report Mr Gow described how lift passengers entered the load area through a queue race which included public lanes and how these were defined. He described what was done to instruct skiers to reduce speed and approach the queue race at an appropriate speed. Mr Gow's opinion was that the use of bollards and ropes to form the queue, as they were in place, was appropriate in the circumstances. Further, he said that as no resort was in a position to monitor and control the activities of individual participants at any given moment, the very existence of the sport, and the commercial infrastructure that made it possible, depended upon the self-regulation of participants through adherence to the Alpine Responsibility Code. On all ski resorts constant vigilance was necessary on the part of all snow resort employees. Mr Gow concluded that the load area of the Cowpastures J-Bar, including both the queue race and the loading point, was designed and laid out within the normal and accepted practices of the Australian and international ski industry. 9 The trial Judge quoted extensively from Mr Gow's evidence and accepted it. As a consequence, his Honour found that the queue lines for the Cowpastures J-Bar on 7 August 2000 were constituted in accordance with international standards and practice. Further, his Honour was satisfied that the lines were not designed to (nor did they) prevent skiers entering them at speed but rather to achieve an orderly and fair system of loading the J-Bar lift. The Judge was satisfied that the skier who struck the plaintiff was a rogue, or inexperienced, skier who ignored his or her obligations under the Alpine Responsibility Code and ignored the terms of the "slow" sign. The duty of the defendant as the plaintiff's employer was to provide a system and place of work as safe as reasonable care and skill could make it. It was plainly foreseeable and neither far fetched nor fanciful that a careless, reckless or inexperienced skier would enter one of the queue lines at speed and present a danger to the lift attendant or, indeed, another skier waiting in the queue. But that conclusion did not necessarily impose a liability upon the defendant bearing in mind that the standard imposed upon it is no higher than one of reasonableness. His Honour said: "In considering whether the defendant breached this standard it is appropriate to take account of the fact that the configuration of the lines complied with international standards and practice, that there was a prominent 'slow' sign displayed, that the Alpine Responsibility Code was widely distributed that the plaintiff was experienced and had clear vision of any approaching skier, that the approach of any such skier would be audible (albeit the evidence was silent as to the degree of this) and that none of the experienced witnesses who gave evidence had ever heard of a similar occurrence. It is also I think relevant to take into account the circumstance that to redesign the configuration of the queue lines so as to render it impossible for them to be entered at speed would defeat the purpose of easy access to the load area especially for beginners. It would also create the problems mentioned by Mr Gow which arise when skiers, in confined spaces, in order to move forward have to use their poles. In the result, I do not think it has been established that there was a breach by the defendant of its duty of care. What occurred was, in my opinion, no more than an unfortunate accident. If the plaintiff had a remedy, in my view, it lay only against the skier who collided with him, apparently in breach of the 'slow' sign and the Alpine Responsibility Code. It follows that there will be a verdict and judgment for the defendant. I order the plaintiff to pay the defendant's costs. "

Appeal 10 The grounds of appeal in the amended notice of appeal relied upon were as follows: "3. His Honour's failure to grant the appellant an adjournment were, [sic] in all the circumstances, a failure to accord the appellant natural justice (given the late service of Mr Gow's report, and the unexplained failure by the respondent to produce documents in response to subpoena, etc). 4. His Honour's admission in to evidence of the report of the respondent's expert, Mr John Gow was, in all the circumstances, a failure to accord the appellant procedural fairness, contrary to s18B of the Arbitration (Civil Actions) Act , and a failure to properly exercise his discretion. 5. His Honour, insofar as he relied on the evidence of the respondent's witnesses erred, given the improper coaching of those witnesses. 6. His Honour failed to give reasons or sufficient reasons for rejecting the appellant's submission as to the unreliability of the respondent's witnesses, given the coaching of those witnesses. 7. His Honour failed to give reasons or sufficient reasons for rejecting the evidence of Mr Toby Ashbolt, who was called on behalf of the appellant." 11 Two additional grounds of appeal were by leave also relied upon. "9. His Honour ought to have awarded costs, in any event, in favour of the appellant, given the respondent's reliance on the report of Mr John Gow dated 12 June 2003 (which only came into existence and was served by the respondent after the Arbitration, the appellant having been successful on liability at the Arbitration). 10. His Honour wrongly rejected the report of the appellant's expert, Mr Weston." 12 The grounds of appeal ultimately relied upon went to procedural matters rather than substantive matters. In the forefront of these were grounds 5 and 6.

Appeal submissions 13 The argument began from what might be regarded as an unpropitious base, namely the consequence of late service of Mr Gow's report. The statement of claim was filed on 12 July 2001 and the defence on 28 November 2001. On 24 January 2002 the plaintiff issued a subpoena to the defendant returnable on 18 March 2002. It was a subpoena issued out of the District Court for early production, warning that an access order under Pt 29 r6C of the District Court Rules would be made after the return date for the subpoena, unless an objection was made to the issuing party before the return date. Paragraph (f) of the schedule required the production of "all medical certificates, medical reports, investigative reports, workers compensation claim forms, accident reports and statements of all witnesses relating to or referring to the applicant which relates to the injury sustained by him whilst in the employment of the respondent." 14 The proceedings went to arbitration which began on 19 August 2002 and occupied 26 September 2002. Neither party relied on expert evidence. On 22 October 2002 the arbitrator made an award in favour of the plaintiff. On 18 November 2002 the defendant filed an application for re-hearing. On 16 June 2003 the plaintiff's solicitor received Mr Gow's report unsigned and dated 12 June 2003. Nothing particularly turns upon the report being unsigned. A signed report was served on 23 June 2003. But the report contained a paragraph 2.0 "Documentation" in which Mr Gow said that in reviewing the matter and preparing his report he had reviewed and/or relied on documents which were listed 1-28. Some of those documents had not been produced on discovery. By this time a hearing had been arranged for 14 to 18 July 2003. 15 On 11 July 2003 an adjournment application was made to Garling DCJ at least in part on the grounds that Mr Gow's report referred to documents which had not been produced on subpoena. Judge Garling refused to grant an adjournment pointing out that the plaintiff was free to apply to the trial Judge. The hearing began on 14 July 2003 when a further application was made by the plaintiff for an adjournment. Mr McAuley for the plaintiff said that the real problem from the plaintiff's point of view was that the subpoena had not been properly complied with. 16 Judge Patten refused the application in a judgment given on 14 July 2003 in which his Honour observed: "The fact that the plaintiff will suffer prejudice if the matter is forced to proceed today is not determinative of Mr McAuley's application. It might be otherwise if such prejudice arose from the wrongful or inappropriate conduct of the defendant, but on the material before me I am not persuaded that is so. In any event to be taken into account is the fact that this matter has been fixed for hearing with an estimate of three days plus to commence today, and the witness has been brought for the hearing from overseas. Moreover, I am by no means satisfied, from what I know about the case today, that the matters now in contention between the plaintiff and the defendant are particularly relevant to the real issue which needs to be decided in the case. In the circumstances I am not persuaded that a case has been made out for the adjournment which Mr McAuley seeks, and I refuse it. By saying that, I do not indicate in any way what my ruling will be in relation to expert reports sought to be relied upon by both the plaintiff and the defendant or as to the admissibility to any particular evidence which either party may seek to adduce. Mr McAuley may have leave at any time to make such further application as may be advised in the light of the conduct of the trial." 17 The plaintiff was called to give evidence on 14 July 2003. His evidence continued in chief for some significant part of that day and then the cross-examination began which continued throughout 15 July 2003 and into 16 July 2003 when some questions were put to the plaintiff about whether he had been snowboarding with Mr Alex Laing. This then occurred:' "McAULEY: I object to that, and I object to any further questions, your Honour, in relation to this subject matter. I envisage that these questions are, at least in part, based on a statement of Mr Laing dated 3 May 2000 which was annexed to Mr Lowe's affidavit sworn 14 July 2003. That document should have been provided in response to a subpoena. It wasn't. Even when the matter was raised with the defendant's solicitors, it wasn't provided. Very belatedly last Friday afternoon it was provided. In the event that - presumably this evidence is - these questions are being asked to lay a foundation, a Browne v Dunn foundation, with a view to calling Mr Laing. The difficulty from the plaintiff's point of view is that if the defendant, as a result of its own failure to comply with a court order - namely, the subpoena - is permitted to ask these questions, the plaintiff is inevitably prejudiced and seriously prejudiced in the conduct of his case. Because effectively, as a result of the failures to comply with the subpoena, the plaintiff's legal representatives have not been able to explore this matter adequately and to institute a variety of inquiries which they could otherwise reasonably have been expected to institute. It's not, as it's been said previously, as part of litigation that one becomes aware of new facts or in the course of a hearing. One does one's best, but this is a very serious matter as far as the plaintiff is concerned. Mr Laing's statement of 3 May 2000 takes his legal representatives entirely by surprise, and there are certainly matters that I would have advised to have been done had we had the opportunity to do so. Effectively, they can't be done and couldn't be done because this material was simply not available. It should have been available. Indeed, even to date, there's been no explanation from the defendant's camp as to why these documents were not produced in the first place." 18 Debate continued and in answer to a question from the Judge as to whether he wanted to make any more submissions the following is recorded:

"McAULEY: Yes, your Honour. I make a further application. I make it on this basis: that obviously I can't at this very moment, for obvious reasons, given that Mr Day is in the witness box, obtain any specific instructions from Mr Day at this moment. But in order to protect his position I make this application, that the further hearing of this matter be vacated because of the prejudice to the plaintiff. The submissions are as previously made. HIS HONOUR: I decline that application Mr McAuley. Yes, Mr Montgomery."

Mr Montgomery appeared for the defendant. 19 On 17 July 2003 after the plaintiff had closed his case, Mr Laing was called as the defendant's first witness. In cross-examination the following interchange took place: "Q. Have you refreshed your memory before giving evidence today? A. I have read over the statements that I gave, yes. Q. Have they helped you to remember? A. Yes. Yes, they have. Q. Are you giving evidence now based on your own recollection and based on what you read of those statements? A. Yes, I am. Q. Have you those statements with you? A. No, I do not. Q. Where are the statements? A. They're in my hotel room. Q. Where's your hotel room? A. Across the road. Q. Would you be able to bring those statements back to the court at 2 o'clock? A. Yes, I believe I could LUNCHEON ADJOURNMENT McAULEY: Q. So, Mr Laing, were you able to find those documents over the lunch? A. Yes, I was, sir. Q. Could you just hand those to the court officer. I seek access to them, your Honour. HIS HONOUR: Yes, I give you access to them. McAULEY: Thank you, your Honour. Q. Did you read each of these documents? A. Yes, I did. I'm sorry, your Honour, I didn't realise. HIS HONOUR: Yes, Mr McAuley. McAULEY: Q. Your evidence is based on each of those documents? A. Yes, it is. Q. You've refreshed your memory from them. A. Yes, I have. Q. The documents have provided you with some guidance as to how you should give your evidence. A. Yes, they have. Q. Where have you been staying? A. Whilst in Sydney? Q. Yes. A. At a hotel across the road. Q. What's the name of it? A. It's the Travelodge, and prior to that another hotel just the other side of the park. Q. You've been here since Monday? A. Sunday -- Q. Sunday night. A. Yes. Q. You've been staying there at the Travelodge, and where else? A. I can't recall the name of the first hotel. Q. You've been staying there with some other witnesses, haven't you? A. Yes, correct. Q. You've discussed your evidence with them. A. Yes. Q. You certainly discussed your evidence with Mr Bevin, did you? A. Yes. Q. You discussed your evidence with Jai Palmer. A. Yes. Q. You discussed your evidence with Darrel Day [Dean]. A. Yes. Q. You're aware of what they're going to say, aren't you? A. Not really, no." 20 In the course of further cross-examination, Mr Laing conceded that he had discussed his evidence with a Mrs Jack, Jai Palmer, Darrel Dean and Mr Bevin; with Jai Palmer "Only over the last four days", with Chris Bevin "Just over the last four days". This interchange took place: "Q. They've told you what they're likely to say, haven't they? A. Depends on what they're asked, I would assume. Q. Yes, but they've told you what they remember about this; what they know about this, haven't they? A. Yes." 21 A little later the witness conceded that Darrel Dean suggested to him when the incident occurred. 22 The bundle of documents produced by Mr Laing after the luncheon adjournment became exhibit K. Amongst the documents in exhibit K was a letter dated 3 July 2003 from Michael Connelly of Dibbs Barker Gosling to the defendant, attention Ken Randall, copies to Darrel Dean, Chris Bevin and Jai Palmer, apparently made available to several people in the defendant's management. The letter was subscribed "Partner responsible: Geoffrey Brookes". I set out the text of the letter omitting formal parts in full: " PERISHER BLUE PTY LTD ats DARREL DAY Our Ref: MKC/GRB/3040333 We refer to the above matter and our recent telephone conference including the relevant witnesses on 27 June 2003, for which we thank you. The teleconference was useful not only introducing us to the respective witnesses but also gave the witnesses an opportunity to understand better the court process and what will be expected of them. As discussed we now take this opportunity to provide you with some possible areas of questioning (to be passed on to the respective witnesses) that each witness can expect to be questioned on at the hearing in the District Court, Sydney commencing 14 July 2003 (listed for 3 days). Darryl Dean Darryl will again be required to attend the hearing and give evidence, as was the case when the matter was listed for arbitration last year. We expect it will be necessary for Darryl to give evidence with respect to the following: s Set up of lift queues at Perisher Blue - in short his evidence would be to simply refute the allegations that the design and layout of the lift queue at Guthega on the day in question was not consistent with best practice at Perisher and resorts elsewhere in Australia and overseas. s Make his own enquiries and satisfy himself of the procedures Perisher had in place as at August 2000 to address the problem of excessive speed on the hill or reckless behaviour by skiers and/or snowboarders (this would obviously include responses such as the placement of signage, actual policing of the resort by ski patrol and other Perisher Blue employees). · Familiarise himself with the distance between where Mr Day would have been working and the position of the lift stop button ie. we intend to present evidence that it was reasonable to believe that Mr Day could have reached the stop button relatively quickly and with little effort or movement (despite an alleged injury). · Make his own enquiries and satisfy himself that Perisher Blue has no other records of prior incidents where a rogue skier has collided with a lift attendant. · If possible make enquiries and satisfy himself of the approximate numbers of skiers and snowboarders that would use the t-bar and j-bar lift load stations at Perisher Blue throughout a given day and/or a given season. · Be familiar with the statement of Graham Weston (we have a document prepared by Darryl Dean dated 23 November 2002). If you feel Darryl Dean is not qualified to give evidence with respect to any of the above points please contact the writer as soon as possible to discuss the matter further. Alternatively if there is an area where Darryl Dean is not completely familiar with the Perisher Blue operations, perhaps Darryl could make his own enquiries and satisfy himself as to the procedures in place so he is in a position to answer questions at the hearing. You will appreciate we ask Darryl to satisfy himself so he is not open to cross-examination on areas where he has only been prepped by ourselves or Perisher Blue. If he has made the enquiries himself he is qualified to answer questions on those areas as a representative of Perisher Blue. Chris Bevin s Be familiar with the statement of Graham Weston. s His recollection of the conditions on the day and the number of guests skiing in the resort on the day of the accident. s His recollection of warning signs in the area. s Previous experience as a lift operator and training undertaken in that role ie. that Perisher Blue lift operators are taught to always face the public whilst working. s His recollection of the conditions of the ropes and bollards forming the ski school and lift line on the day in question - specifically what he means by the words 'scattered bollards' which appear in his statement. s His recollection of visibility on the day and what the plaintiff would have seen. s His opinion as to the likelihood of a guest skier being able to survive a collision and load himself onto the J-bar. s Years of experience with Perisher Blue and various positions held in that time. s Make enquiries and satisfy himself (or based on your own experience) that the system of setting up queue gates at Perisher Blue is consistent with other resorts in Australia and internationally. Prior to confirmation that Chris Bevin was returning to Perisher Blue as an employee this winter we issued a Subpoena to Give Evidence on him. By the time of reading this correspondence we understand Mr Bevin will have been served with the Subpoena to Give Evidence. We note in the teleconference that Mr Bevin is available in any event and will be making every effort to assist Perisher Blue and ourselves in the running of the matter. Jai Palmer · Be familiar with the statement of Graham Weston. · His recollection of warning signs in the area. · Previous experience as a lift operator and training undertaken in that role ie. that Perisher Blue lift operators are taught to always face the public whilst working. · His opinion as to the likelihood of a guest skier being able to survive a collision and load himself onto the J-bar. · Years of experience with Perisher Blue and various positions held in that time. · Satisfy himself with documentary evidence that he was not rostered on for work on the date of the plaintiff's alleged accident (being 7 August 2000). · His recollection of ever re-opening a ski school line at the Cow Pastures J-bar or on any other lift whilst working for Perisher Blue either as a lift operator or as a lift mechanic. · Make enquiries and satisfy himself (or based on your own experience) that the system of setting up queue gates at Perisher Blue is consistent with other resorts in Australia and internationally. Alex Laing We have now managed to contact Mr Alex Laing (former employee of Perisher Blue) who is currently working full-time in a ski/snowboard hire shop in Nuggets Crossing. Mr Laing is willing to cooperate and we have therefore subpoenaed him to give evidence, if required. Mr Laing recalls, albeit with some uncertainty as to the exact date, that he was snowboarding with the plaintiff prior to his alleged incident and witnessed the plaintiff suffering a severe injury to his right leg, which is the same leg the plaintiff alleges he injured as a result of the 7 August 2000 accident. We understand you have provided all witnesses with further copies of their statements and we ask that if you have not already done so provide them with a further copy of the Graham Weston statement, on which the plaintiff will intend to rely. We can confirm the matter is listed for hearing in the District Court, Sydney between 14-16 July 2003. We will remain in contact with you directly with a view to arranging for the above named witnesses to travel to Sydney and participate in a conference with the writer, Geoff Brookes and counsel (Rob Montgomery) prior to the hearing. In all likelihood we envisage having the witnesses travel to Sydney on Sunday night (13 July 2003) with a view to meeting counsel first thing on the Monday morning. The matter has been listed with priority so we are hopeful it will commence on the Monday morning. In the meantime, should you have any queries please do not hesitate to contact the writer." 23 The following matters are to be noted:

On 27 June 2003 a telephone conference took place between Mr Randall and the solicitor including "the relevant witnesses".

That was regarded as giving the witnesses an opportunity "to understand better the court process and what will be expected of them".

The solicitor saw fit to provide Mr Randall with some possible areas of questioning (to be passed on to the respective witnesses).

So far as Darryl Dean is concerned, the solicitor expected it would be necessary for him to give evidence with respect to the following: "set up lift queues at Perisher Blue - in short his evidence would be to simply refute the allegations that the design and layout of the lift queue at Guthega on the day in question was not consistent with the best practice at Perisher and resorts elsewhere in Australia and overseas".

Mr Dean was expected to familiarise himself with the distance between where Mr Day would have been working and the position of the lift stop button "ie. we intend to present evidence that it was reasonable to believe that Mr Day could have reached the stop button relatively quickly and with little effort or movement (despite an alleged injury)".

Mr Randall was to appreciate that the solicitor asked Mr Dean to satisfy himself "so he is not open to cross-examination on areas where he has only been prepped by ourselves or Perisher Blue".

As to Mr Bevin "make enquiries and satisfy himself (or based on your own experience) that the system of setting up queue gates at Perisher Blue is consistent with other resorts in Australia and internationally".

The solicitor's note "in the teleconference that Mr Bevin is available in any event and will be making every effort to assist Perisher Blue and ourselves in the running of the matter". 24 A second document, part of the bundle Exhibit K, was headed "Witness Protocols for Court Cases and Arbitration Hearings". The material in evidence did not indicate who produced or disseminated this document. All that is known is that it found its way into the hands of Mr Laing. It includes the following: " Not about facts about credibility" "Lawyers lead you up the garden path then shut the gate behind you" "Lawyers are there to destroy your credibility not establish the facts"

On the next page was: " Golden Rules 1. Know the facts 2 Do not try to win the case yourself 3. Don't be dogmatic 4. Stay honest."

" 2. Don't try to win the case yourself: Never seek to become the advocate and win the case for Perisher Blue. You will be seen to be a biased witness. You will lose credibility. Rely on the Lawyers to win the case. They are the advocates. · You are there to give independent objective facts. · Do not argue. 3. Don't be Dogmatic: · Don't be dogmatic, ie, 'I am sure this happened' and 'This must have happened'. Say: 'It's possible, but I don't think so' or 'I think it's possible, but I don't think it is likely'. 'In my opinion (In my experience) I believe this happened …' " 25 The document goes on to advise the recipient "Always tell the truth." It was quite plain from the cross-examination of Mr Laing, Mr Bevin and Mr Palmer that they had discussed amongst themselves what the evidence of each of them would be. However, the cross-examination probed no further. Mr Palmer gave this evidence in cross-examination: "Q. You discussed your evidence with Chris, did you? A. No, not the actual evidence, just the case. Not the evidence, just the case. Q. Did anyone warn you not to discuss the evidence with anyone? A. No, they didn't. Q. Did anyone say to you, you might be asked whether you discussed your evidence with anyone? A. Sorry? Q. Did anyone say to you, you might be asked, 'Have you discussed the evidence with the other witnesses?' A. Yes. Q. Who said that to you? A. I've been warned by our other workmate. Q. What did he say to you? A. He said. 'You might be asked whether you discussed the evidence.' Q. When did he say that to you? A. This morning. Q. Who was that who said that to you? A. Darryl Dean. Q. Did he give you some advice as to what to say? A. No, he didn't. Q. So what exactly did he say to you about that? A. He told me that we might be asked have we discussed the evidence. Q. Did he say anything further? A. No, he didn't. Q. In any event, you had discussed what evidence you were likely to give with Darryl Dean, hadn't you? A. No, not really. Q. What do you mean, not really? A. We talked about the case, but - yeah. Q. Yes. He'd investigated this case, hadn't he? A. Yes, he has. Q. You told him what your evidence would be, hadn't you? A. Yes, he should know what my evidence is if he's investigated the case. Q. You in fact had a long discussion with him on at least one occasion as to what your evidence would be, hadn't you? A. No long discussions. Q. Well, you had a discussion, didn't you? A. I've had a discussion, yes. Q. How many occasions did you have a discussion with Darryl? A. Once or twice while we were waiting outside. Q. But you had a discussion before you came to Sydney, didn't you? A. Yes, we have. Q. How many times have you had a discussion with Darryl before you came to Sydney about your evidence? A. Twice. Q. Twice. When you say 'we', who are you referring to? A. Myself, Darryl Dean, Chris Bevin and Sharon Jack. Q. Sharon Jack and - Alex, was he there? A. No, he wasn't. Q. You were all there, were you? A. Yes, we were. Q. How long ago was that? A. From memory, I think one was a week ago, and one was three weeks ago. Q. How long did that discussion of a week ago take? A. 45 minutes. Q. What about the three week conversation? A. Yeah, it was 45 minutes to an hour. Q. You were all there for the whole time? A. Yes, we were. Q. Was there anyone else there? A. Ken -- Q. On each occasion? A. Sorry? Q. On the first occasion, about three weeks ago, who were the people there? A. Ken Randall. Q. Ken? A. Ken Randall. Q. Randall. Who's he? A. He's - I don't know what his actual thing is, his Perisher title is at Perisher Blue. Q. He's one of the bosses, is he? A. Yes, he is. Q. Yes. Anyone else there? A. There was myself, Chris Bevin and Darryl Dean, and Sharon Jack. Q. And Sharon Jack. A. Yep. Q. What about on the second occasion? A. Sharon Jack, myself, Chris Bevin and Darryl Dean. Q. Were you told that Perisher Blue was concerned about this case? A. I was told they were investigating the case, yes. Q. Yes, and that they wished you to assist them in the case? A. To give evidence, yes. Q. But they wanted you to help. A. Yes. Q. Was there discussion on each of the occasions as to the sort of questions you might be asked? A. No, there wasn't. Q. What was the discussion about on the first occasion? A. That the case is going ahead and what dates they will be on and basically what we were expected to wear and where we were meant to be. Q. But there was a discussion for about, what, 45 minutes? A. Yes, there was. Q. On the second occasion for a similar amount of time? A. Yes, there was. Q. Certainly, on the snowfields it's important to ensure safety, isn't it? A. Yes, it is. Q. Incidentally, did you discuss this case, the evidence, with Alex Laing at all? OBJECTION. FORM. Q. Alex Laing wasn't at either of these two meetings. A. No, he wasn't. Q. But he's been with you all this week; since last Sunday night. A. Yes, he has. Q. Have you discussed with Alex Laing your evidence? A. No, I haven't. Q. Has he discussed it with you? A. Yes, he has. Q. What did he tell you? A. That he was there on the day. Q. How many times has Alex discussed his evidence with you? A. I'd say probably twice. Q. No more than twice? A. No. Q. Quite sure about that? A. As far as I can remember, yes. Q. It's only since Sunday. Only twice since Sunday has he told you what he was going to say. A. He hasn't told me what he was going to say, no. He told me what he was here for. Q. That was to say certain things. A. No, it was because he'd been called up to come here. Q. You knew that already, didn't you, when you saw him? A. I did not know Alex was coming until the day before that. Q. But when you saw him, you knew that he was here to give evidence, didn't you? A. Yes, I did. Q. He then told you what he was likely to say. A. No, he didn't." 26 Mr Dean agreed that he had taken two statements from Mr Laing and that he had been told by the management that the case was an important one. He gave this evidence in cross-examination: "Q. Are you quite sure that you haven't discussed Mr Laing's evidence with him? A. Yes, apart from the day he made the statement and the additional comments. Q. Wasn't there a teleconference at some stage involving a number of witnesses? A. There was in regards to - that was Sharon Jack organised that with Alex and Chris and Jai, and the company's administrative officer, Ken Randall. It was basically just in particulars of how we were going to get to court; as funny as it may seem, how to dress; and how to act in court, and no specifics of the case were discussed. It was - I was asked a question about what I did, in as you've asked me, in regards to taking photos and videos, and then there was just a - with the other guys it was just going over their statements. … Q. Who was actually at this conference, from the beginning to end? A. Chris Bevin, Jai Palmer, Alex Laing, myself, Ken Randall and Sharon Jack. Q. What is Ken Randall's position? A. He's the administration officer for Perisher Blue. Q. Was this a teleconference? A. Yes, it was. Q. So who was at the other end? A. Geoffrey Brookes and Michael Connolly. Q. Everyone remained at the conference for the entirety, at least at the Perisher end. A. Yes, they did. Yes. Geoffrey and Michael were on the phone the whole time as well, see. Q. You could see the, could you, or they could see? A. I couldn't, no. I couldn't, it was on the phone. Q. In any event, each of the statements was gone through? A. Yes. Q. When you say 'the statements', what are you referring to? A. The ones that I handed you there; just the written statements from Alex, Chris and ski patrol's statement as well, from Jai. Q. When was it that this took place? A. What's today, Friday - Friday last week. Q. Friday last week. Do you recall what date that was? We should be able to work it out, I think, with the assistance of a diary. A. It's the 11th or the 12th. Q. 11 July? A. 11 July. Q. Is that right? A. Yes. Q. Was there a previous meeting about this case? A. A previous meeting? Q. Yes, before 11 July. A. With everybody in that meeting, or -- Q. With anyone. A. I've had a number of meetings with Sharon Jack about this case. Q. Had there been any previous meetings at which you've attended with the witnesses? A. No. Q. So there wasn't an earlier meeting? A. No. Q. See there wasn't a - are you sure about the date?? Before you answer that question, can I just say this to you; can I suggest to you that possibly you've made a mistake and that in fact the date was 27 June. I'll just see if that's a Friday. That was a Friday. The last Friday in June. Could that be right? A. No, I'm sure it was last Friday. Q. It would be a matter of surprise to you, would it, if you were told that there was a meeting involving Ken Randall and Chris Bevin and Jai Palmer and Alex Laing on Friday, 27 June. A. Just trying to think. I know we had a meeting on Friday just gone. I certainly don't recall one. Q. But what I'm suggesting to you is, perhaps you're mistaken in relation to the earlier date that you gave, I think 11 July. A. No, I remember having a meeting last Friday, because I picked up some cab charges from Jill Salimos, for Sunday. Q. Last Friday, of course, is the Friday before this case commenced. A. Yes, that's right. That why I'm just saying, I remember it being that Friday because I also remember picking up some cab charges from Jill Salimos, the secretary, for Sunday, and I would only have done that a day or so in advance. Q. That's only a week ago, of course, isn't it? A. Yes. Q. In any event, after the meeting that you've told us about, did you receive a letter as to the evidence that you were expected to give? A. Yes. Q. Who was that letter from? A. Dibbs Barker Gosling. Q. Right. Was that a letter addressed to Perisher Blue Pty Ltd? A. Yes it was." 27 He identified the letter as that from Dibbs Barker Gosling of 3 July 2003. He agreed that it had been given to Bevin, Palmer, Laing and Richard Tuck, the General Manager of Finance Administration, and to the OH & S Manager, David Milford. He gave this evidence: "Q. Certainly, to your knowledge, Chris Bevin and Jai Palmer and Alex Laing have each been invited to at least one meeting with the most senior management of Perisher Blue for the purpose of discussing their statements. A. Sharon Jack isn't senior management. She's a manager. She's not senior management. Q. What about Mr Jack? A. Sorry? Q. What about Mr B Jack? A. Bob Jack hasn't attended any of those meetings. I know, as I said, Chris, Jai and myself have had a meeting with Sharon. Alex had a meeting with Sharon when he wrote his statement. But Sharon is not senior management. She's middle management, I guess you'd put it. Q. Mr Bevin, I think, made two statements, didn't he? A. He made a ski patroller statement, and then a statement. … Q. Have you discussed with Jai Palmer his evidence? A. No, apart from the fact that he wasn't there on the day, so he wondered why he had to be here. I said to him I had no idea. Q. Well, you were at a meeting where Jai Palmer's statement was discussed, weren't you? A. Yes, I was. Q. Have you discussed with Chris Bevin your evidence? A. No. Q. Have you discussed with anyone, other than Mrs Jack, your evidence? A. Mr Jack, Mr Fernside. Q. Why have you discussed with Mr Fernside, the financial controller, your -- A. No, Mr Fernside is the mountain operations manager. But Mr Fernside is my manager. Q. Why have you discussed your evidence with him? A. Because he's my manager, and -- Q. What's he got to do with the evidence that -- A. He's just interested in what I had done. I have to quantify my hours that he obviously signs off on each week, and he asked me, you know, what I've done that week, so I've told him what I've done." 28 On 29 July 2003 after the close of the defendant's case and in the circumstance where there was no case in reply, counsel agreed that submissions should be made in writing. There would be no oral submissions. The Judge acceded to this proposal and directions were given for lodging and serving written submissions. That having been done the trial Judge reserved his decision. 29 A good part of the plaintiff's written submissions was directed to the unreliability of the defendant's witnesses, particularly in light of the solicitors' letter of 3 July 2003 relevant parts of which were quoted in the submissions. In his judgment the trial Judge made no mention of this letter or the teleconference. 30 It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, "Not about facts about credibility".

The written submissions at trial 31 The parties placed before the trial Judge substantial written submissions. The plaintiff's written submissions dealt with the defendant's witnesses and submitted that the weight of their evidence had to be measured in the context of what was said in the letter of 3 July 2003 and the fact that they discussed their evidence with other witnesses. In particular, the plaintiff submitted: " Teleconference 148. Mr Dean gave evidence in relation to the teleconference which appears to have occurred on 27 June 2003 and to have involved Sharon Jack, Jai Palmer, Chris Bevin, Alex Laing, Ken Randall as well as Mr Geoffrey Brookes, solicitor and Michael Connolly solicitor (transcript reference 276.13) 149. It would seem that everyone remained at the conference for the entirety, at least at the Perisher end (transcript reference 276.53 and following). 150. It would seem that each of the statements was gone through (transcript reference 277.3 and following). 151. It would seem that there was some confusion in Mr Dean's mind as to the date of the teleconference (transcript reference 2277.43 and following). 151. Nevertheless it seems probable that Mr Dean was in error about the date but otherwise gave an accurate enough account of what occurred. 152. Mr Dean confirmed that following the teleconference he received a letter as to the evidence he was expected to give (transcript reference 278.17 and following). 153. Mr Dean confirmed that document was given to Mr Chris Bevin (transcript reference 278.43 and following). 154. Mr Dean also confirmed that document was also given to Mr Jai Palmer (transcript reference 278.47 and following). 155. The document was given to Mr Alex Laing (transcript reference 278.50 and following), as well as to Mr Richard Tuck the General Manager of Finance & Administration, and Mr David Milford the Occupational Health and Safety Manager. 156. Mr Dean confirmed that the case had been discussed at the highest levels of Perisher Blue (transcript reference 279.7 and following). 157. It is likely that the evidence Mr Dean gave as to discussing the evidence with the various witnesses (transcript reference 279.32 and following) considerably understates the matter. Inappropriate pressure on witnesses as to evidence 158. What appears to have happened here is that each of the witnesses who have been called on behalf of Perisher Blue have been subject to inappropriate pressure and suggestion from various persons as to the nature of their evidence. 159. There would appear to have been a number of discussions amongst the witnesses as to the evidence. 160. With the exception of Mr Laing, there has been a lack of frankness as to the nature of those discussions. 161. There was a teleconference conducted over the phone between Darryl Dean, Chris Bevin, Jai Palmer as well as senior members of Perisher Blue, together with the defendant's solicitors, during which Messrs Dean, Bevin and Palmer have sat through detailed discussions of the evidence each was expected to give. Unreliability of evidence of law witnesses called on behalf of Perisher Blue 162. This quite inappropriate procedure casts very considerable doubt on the reliability of the evidence of each of the lay witnesses called on behalf of Perisher Blue. Absence of explanation from Defendant's Solicitor 163. Given the extraordinary nature of the letter from Dibbs Barker Gosling dated 3 July 2003 (Exhibit K) one might have expected some explanation, perhaps on affidavit to reassure the Court that inappropriate pressure had not been applied to witnesses as to the evidence they were to give and to reassure the Court that in fact the evidence of one witness had not been discussed with other witnesses etc. 164. There was no such evidence from the solicitors for the defendant and the Court is left up in the air as to what might be said in defence of what has occurred. 165. Presumably any evidence that could have been given in this regard would not have assisted Perisher Blue's case. … Discreditable conduct of Perisher Blue 182. It is most unfortunate that the defendant's case in this matter has been tainted by dealings with witnesses which do the defendant very little credit. 183. While from time to time a witness in a case may speak to another witness not realising the significance of what he or she is doing, it is quite a different matter when solicitors acting on behalf of the defendant encourage this sort of behaviour and provide written instructions to witnesses as to what is expected of them. 184. Further, it is quite a different matter when persons in management positions with a major corporation (presumably not unaware of the exigencies of litigation) encourage witnesses to fashion their account of events in such a way as to advance what is perceived as the corporation's interest. 185. In the circumstances the evidence is such that where there is any conflict one would accept the account of the injury provided by Mr Day in preference to any evidence given on behalf of the defendant to advance the 25 July 2000 theory." 32 The defendant replied: "20. The plaintiff's submissions attacking the weight of the evidence given by the Defendant witnesses can be explained and dismissed in short form as follows: (1) Mr Bevin: (1) It was not put to Mr Bevin that he gave evidence under pressure of his employer or of his solicitor or that he had otherwise been influenced against the truthfulness of the evidence which he gave. (2) Despite his evidence of having been a lift operator for four years (Tp 213.10) and his familiarity with the 2000 queue line configuration through his Ski Patrolling, the plaintiff's case on negligence concerning the design of the Ski School line was not put to Mr Bevin at all. (2) Mr Laing: (1) Mr Laing denied that Mrs Sharon Jack told him the date 25 July 2000 (Tp 208.25). (2) Mr Laing denied that he did not have a recollection of the date or that he had been prompted by other people (Tp 209.44).

(3) Mr Laing denied that he was familiar with the other witnesses' evidence (Tp 208.15). (4) Mr Laing was firm in his testimony that he was able to identify the date independently of others because of his association with the following known events: his birthday on 25 July 2000 (Tp 197.55-198.6); the rostered days off and the snow conditions (Tp 202.15). (3) Mr Dean: (1) Mr Dean gave clear evidence that Mr Laing had initially identified to him that the event occurred when both Messrs Day and Laing were on days off in good powder snow (Tp 283.45-.53 and 284). (2) Mr Dean did not feel pressured at all by the defendant (Tp 282.20-.24).

(3) Despite his evidence of familiarity with the Cowpastures J-Bar load including having been a lift operator there in 1992, ski patrolling and investigating the incident, the plaintiff's case on negligence concerning the design of the Ski School line was not put to Mr Dean. (4) Mr Dean's evidence that the lift operator could see an approaching fast skier, hear an approaching fast skier and hear a skier hitting bollards was not challenged in cross-examination and should be taken as accepted by the plaintiff. (4) Mr Palmer: (1) It was not put to Mr Palmer that he had been pressured to give evidence against truth or was otherwise influenced to do so. 21. The plaintiff's submissions that the defendant and indeed the defendant's solicitors coached the defendant witnesses should be dismissed. Despite the seriousness of the allegation, plaintiff counsel (see above) did not suggest to any witness except Mr Dean that their evidence had been pressured or was otherwise untruthful. Mr Dean expressly denied the suggestion. 22. It is unavailable on the evidence for the plaintiff to submit as he has that the evidence of any of witnesses Messrs. Bevin, Laing, Palmer or Dean was influenced by them speaking among themselves. The evidence each of them gave was that they had discussed the case but not what they would say in evidence. It must be borne in mind that the events concerning which they each gave direct evidence did not overlap. The plaintiff's submissions do not challenge the truthfulness of Mr Duckworth whose evidence was that the injury to Mr Day occurred on 25 July 2000. 23. In the end, the witnesses were not given the opportunity to provide the valuable evidence of answering the allegation of untruthfulness made in the plaintiff's submissions. 24. It is unfortunate that the plaintiff's submissions have highlighted selected words in the defendant's solicitors' letter, Exhibit 'K', without indicating in the submission that the highlighting does not appear in the letter. The highlighting changes the context of the letter. The selection of passages changes the context of the letter. The letter expressly reminds not the witnesses directly but the defendant that each of the witnesses was to rely on their own inquiries as to their evidence. The letter, Exhibit 'K', did no more than identify the relevant areas of evidence. It did not suggest evidence. It should be further borne in mind that the date of the letter placed it after the obtaining of witness statements. 25. It is frankly offensive and ludicrous for the plaintiff to submit witness tampering on the basis of Exhibit 'K' when perhaps the majority of civil proceedings in the Courts of New South Wales proceed by witness statements recorded and compiled by legal representatives for the parties. Plainly the input of the solicitor to the witnesses evidence by Exhibit 'K' bears minimal measure of opportunity for influence in comparison with the preparation of witness statements. 26. On the same point, it is worth repeating that it was not put to any of the witnesses that they were prompted in their evidence by either the defendant, the defendant's solicitors or the other witnesses." 33 There is force in the defendant's response. I accept that the disclosure of the solicitors' letter of 3 July 2003 and the witness protocols opened up areas for cross-examination of the defendant's witnesses which were not fully pursued. 34 However, nowhere in his reasons for judgment did his Honour deal with this part of the plaintiff's written submissions. Nowhere did his Honour say anything about the attack on the credibility of several of the defendant's witnesses, whose evidence the Judge accepted, resulting from their taking part in the teleconference and otherwise in discussing their evidence with other witnesses for the defendant. 35 I regard what happened here as of sufficient seriousness prima facie for the papers to be sent to the Legal Services Commissioner. While I accept that it is arguable that the various witnesses' credibility could have survived the attack made upon it in reliance on the solicitors' letter and the teleconference, the trial Judge's failure to deal with these submissions leads to the conclusion that in the result his Honour failed to have regard to critical evidence. Accordingly the verdict and judgment must be set aside and a new trial ordered; compare Mifsud v Campbell (1991) 21 NSWLR 725 at 728. 36 Since in my opinion there must be a new trial I think it undesirable that the Court say anything about the other grounds of appeal relied upon. The defendant must pay the plaintiff's costs of this appeal and should, in my opinion, in the circumstances of this case and despite the fact that there is to be a new trial, pay the costs of the plaintiff of the trial.

Orders 37 I propose the following orders: 1. Appeal allowed; 2. Set aside the verdict and judgment in favour of the defendant of 1 October 2003; 3. Order a new trial of the proceedings; 4. The respondent/defendant to pay the plaintiff's costs of the hearing before his Honour Judge Patten; 5. The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The defendant's solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner. 38 McCOLL JA: I agree with Sheller JA. 39 WINDEYER J: I agree with Sheller JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.