Divall v Mifsud

Divall v Mifsud - [2005] NSWCA 447 - NSWCA 2005 case summary — Zoe

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Wednesday 14 December 2005 DIVALL & ANOR v MIFSUD Judgment 1 IPP JA: Save in one respect I agree with the reasons of M W Campbell AJA. I agree with the orders proposed by his Honour. 2 The respect in which I differ from M W Campbell AJA is in regard to the admissibility of Mr Kent's statement. 3 As M W Campbell AJA points out, Mr Kent gave the following evidence under cross-examination: "Q. Does the statement contain a reproduction of the conversation that you say you had with James Mifsud? A. As far as I'm aware, yes. Q. Do you say that that - what is contained in the statement is consistent with your evidence here today? A. Yes." 4 By these two answers, Mr Kent admitted that the statement he gave set out the conversation that he had with Mr Mifsud and that his statement in that respect was consistent with his evidence given in Court. Counsel for Mr Divall, despite earlier claiming privilege for the statement, did not object to these questions. 5 Had cross-examining counsel, instead of asking the two questions which I have set out, again called for the statement - and had the statement been produced and tendered as an exhibit - that statement would have been admitted into evidence unless counsel for Mr Divall had objected. I can see no difference in principle between the admission of a privileged statement into evidence in circumstances where counsel for the party holding the privilege does not object, and oral evidence given by a party of the contents of that statement in circumstances where counsel for the party holding the privilege does not object. 6 In my opinion the failure by counsel for Mr Divall to object to Mr Kent's evidence amounted to Mr Divall knowingly and voluntarily agreeing to Mr Kent giving the privileged evidence. In my opinion, by the conduct of his counsel, Mr Divall waived his claim to privilege. 7 McCOLL JA: I have read M W Campbell AJA's reasons in draft. I agree with the orders proposed by his Honour and, save in one respect, with his Honour's reasons. 8 Insofar as the admissibility of Mr Kent's statement is concerned, I agree with Ipp JA that Mr Divall waived his claim to privilege in respect of that statement. 9 Campbell AJA has set out the facts relevant to this issue. I will not repeat them save as necessary. Section 119 of the Evidence Act 1995 entitles a client to object to evidence being adduced if, relevantly, that evidence would disclose a confidential communication between a lawyer acting for the client and another person that was made for the dominant purpose of the client being provided with professional legal services relevant to Australian court proceedings to which the client was a party. There was no dispute that Mr Kent's statement constituted such a communication. 10 Although Mr Wilson initially claimed privilege over the statement, he did not object to counsel for Mr Mifsud asking two further questions the answers to which he conceded disclosed the substance of Mr Kent's statement. His failure to object to those questions meant that the substance of Mr Kent's statement had been "knowingly and voluntarily disclosed to another person": s 122(2) Evidence Act; Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 431 [12]. 11 M W CAMPBELL AJA:

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The Circumstances 14 On 27 December 2000 the respondent (whom I shall refer to as Mifsud) telephoned Andy Divall the son of the first appellant (whom I shall refer to as Divall) and asked if he could have the use of an Isuzi tilt tray truck for a time for a task which he wanted to perform. Mifsud worked from time to time for a business apparently conducted by the two Divalls and was familiar with the truck and had driven it. 15 Andy Divall said that he could use the truck - which it is common ground was owned by Divall - but that he would need to arrange it with the second appellant (who I shall refer to as Mason). Mason was then using the truck in his role as an employee of the Divalls. 16 Mifsud arranged with Mason that he would collect a utility of Mason's and drive it to a work site of some drainage work where he would pick up the truck from Mason. 17 Mifsud arrived at the site at 442 Red Hill Road Marulan at about 9.30 am. There were some pipes to be unloaded from the truck for use on the site. This had to be done before Mifsud could have the truck. 18 Mifsud said that when he arrived this process was in train. He denies at any time entering the cabin of the truck or operating any of the controls. It is common ground that at the time the ensuing accident occurred the truck was in neutral, with its engine running and the maxi brake off. 19 Mifsud further said that he saw Mason step off the rear of the truck, step into an excavator that was there and commence to lift a pipe from the rear of the vehicle. 20 At that time he was standing at the rear near side of the vehicle. As the unloading commenced he turned away and then noticed the truck start to roll forward. He said that he attempted to get away by walking briskly forwards towards the front of the truck but he tripped and the truck rolled over him. He denied emphatically that he had attempted or intended to attempt to enter the moving vehicle to try and stop it. 21 Mason, on the other hand, says that following a suggestion by Mifsud as to how best to unload the pipes, Mifsud entered the cabin of the vehicle, started the engine, engaged the "power take off" which required that the truck be in neutral and then went to the side of the truck where the lift controls were. 22 It is common ground (apart from a possibility of mechanical failure which the Judge rejected) that one or other man failed to secure the vehicle from within the cabin. The principal issue in the case was which man. 23 A Mr Goich was present. He said that Mifsud did enter the cabin, then get out and go to the area where the controls were. Whilst in conflict with Mason on other issues he supported him on the principal issue. 24 A Mr Kent (whose involvement I will refer to later) went to the scene arriving whilst Mifsud was still pinned under the vehicle. He gave evidence before Judge Armitage that in response to a question as to what happened Mifsud said "I was tilting the tray and the truck ran away. I run round the front to get into the cab to stop it."

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29 The Judge later said: "The plaintiff was unshaken in cross-examination in this basic account of the accident. He was however faced with the considerable difficulty that even on his evidence in chief, he ran towards the front of the truck when it started to roll, rather than to one side, where one would have thought that he would have been safer. His explanation for what might be thought to be this extraordinary conduct was that he did not run to the side because he thought the pipes may roll in that direction, and he protested that "it happened in a split-second" and "I acted as best I could". It was put in submissions by the defendant that the reason the plaintiff behaved this way was that he believed himself to be responsible for the truck rolling, because he had been at the controls immediately before it did so. After careful consideration I do not think that the plaintiff's behaviour was consistent only with the belief that he was responsible for the truck rolling. I think it is more likely to have been a last minute reaction on his part in the agony of the moment, which given more time he may not have made. ……. Many other things were put to the plaintiff in cross-examination, but as I have said, he was not in my opinion shaken in his account of the accident itself and of the events immediately before it, and in particular in his evidence that he was not at the controls of the truck, either in the cabin or at the side where the tipper controls were, before the truck started to roll." 30 After concluding that Mr Kent's evidence (as with that of Mr Goich) did not corroborate Mason's contention that Mifsud was in control of the truck Judge Armitage went on: "For these reasons the determination of this last mentioned issue depends on a straight comparison of the evidence of the plaintiff and Mr Mason. I have thought very carefully about this, and it is one of the reasons why I reserved my decision, but I think when I compare the plaintiff's interest in establishing his version as truthful, because of the obvious monetary gain involved, with Mr Mason's interest in exculpating himself and his employer from any share in the responsibility for the accident, because of the obvious fact that both potentially faced prosecution either by the police or the WorkCover Authority or both, I prefer the evidence of the plaintiff. There are several reasons for this. The first and least important is that his demeanour was acceptable, in that he readily answered questions put to him, did not appear evasive and on occasions made admissions against interest. The second reason is that it seems to me inherently unlikely as a matter of commonsense that even if the plaintiff was in a hurry for the truck, Mr Mason would have invited a person like the plaintiff who was not employed by the owner of the truck at the worksite to enter it and operate the controls when it was just as convenient, at least in my view, for Mr Mason to do so himself. It is true that he was prepared to lend the plaintiff the truck, but why involve him in a job his employer was doing, with the risk that something might go wrong, for, at least in my view, no particularly good reason? The third and most important reason for accepting the plaintiff's evidence about this over that of Mr Mason is that Mr Mason did not in his statement to the police mention what he later said in evidence about Mr Goich helping him, and about the plaintiff suggesting the "rolling method" of unloading the pipes to him. For reasons already expressed I think these were important details which, were they accurate, Mr Mason would have been keen to mention to the police. Their absence from the police statement causes me to doubt the accuracy of Mr Mason's recollection in his evidence generally, and in particular as to the plaintiff's being in the cabin of the truck or at the tipper controls at the rear passenger's side before the accident." 31 There was a conflict in the evidence between Mifsud and his wife in relation to a damages issue. The Judge considered Mifsud a more reliable witness than his wife. Relevantly for present purposes he said: "Another submission with which I should deal is that the defendants said the plaintiff was an unreliable witness because his evidence disagreed in one material particular from that of his wife, who also gave evidence."

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Disposition 35 Judge Armitage found that Mifsud made "a mistaken attempt to gain control of the truck himself". 36 That finding is completely at odds with Mifsud's repeated denial that he had not done so and his assertion he had moved as he had because he was afraid the pipes would strike him. It necessarily involves an implicit finding that Mifsud had given false evidence and that his denial was not believed. 37 Mr King of Senior Counsel, who appeared with Mr Halligan of Counsel for Mifsud, submitted that there may have been an honest mistake. I think that proposition untenable. There was no suggestion at trial or on this appeal that Mifsud's memory was affected by the accident or otherwise and he gave much detailed evidence. 38 The written submissions put that "it was for the trial judge to determine what parts of the evidence were important to him and what parts not". 39 No doubt that statement in true as far as it goes, however, before the Judge reaches that conclusion he is bound to consider the relevant material before him. The submission does not put, hardly surprisingly, that the implicit finding of untruthful evidence on a material matter was unimportant in a case where questions of credit were central. 40 There is nothing in the judgment to suggest that the Judge considered whether and to what extent the untruthful evidence which he had found affected the credit of Mifsud. 41 In Malco Engineering Pty Ltd v Ferreira (Supreme Court, March 1994, unreported) the trial judge expressly did not take into account untruthful evidence on material matters in assessing the worker's credit on other issues. A new trial was ordered. Handley JA said: "This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false. In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker's evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings." 42 In this case the Judge has not expressly set aside the untruthful evidence. However, nothing appears from the judgment to suggest that he has performed the duty set out by Handley JA, which depends upon the fact of the untruthful evidence not how it was dealt with in Malco. 43 It seems inescapable that the experienced Judge either inadvertently overlooked this issue or failed to refer to it in his reasons. 44 Having regard to the detailed account of the Judge's reasoning set out in the judgment and the reference to the possible credit issue relating to the wife's evidence, it would seem that overlooking the issue is the more likely of the alternatives. If so there has been, with respect, an error of law. With credit issues to the forefront, I consider that a retrial is the appropriate remedy. I propose that a new trial be ordered. 45 If, on the other hand, his Honour did consider the matter and decided he would, nonetheless accept Mifsud's account, he was bound to refer to this important issue in his reasons and say something, even if brief, as to why he adopted that course. 46 The duty of a judge to give reasons was discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 280 B-C and 281 B-C, in Mifsud v Campbell (1991) 21 NSWLR 725 and in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 47 Beale is a case in which the trial judge took an adverse view of the credit of a plaintiff without referring in his judgment to apparently strongly corroborative evidence or giving reasons for reaching his view despite such evidence. 48 In this case the judge has taken a favourable view of the credit of Mifsud without referring in his judgment to the clearly significant finding of untruthfulness on a material issue or giving reasons for reaching his view despite such finding. 49 In Beale Mason P (with whom Meagher and Sheller JJA agreed), speaking of the statement of reasons for decision, said at 3: "Nevertheless, there is a miscarriage where what is and is not disclosed involves a breach of the principle that justice must not only be done but must be seen to be done." 50 Mason P also said at 3: "……However, the appellant's case and (incidentally) her credibility were corroborated at critical points by three witnesses …….Yet the trial judge made no reference at all to their evidence, and offered nothing by way of reasons as to why their corroborating evidence should be ignored." 51 In proposing a retrial on the relevant issue in Beale Mason P said at 1: "…..the appellant is entitled to a re-trial ……because the reasoning process exposed by the learned trial judge leaves the appellant with a justifiable sense of grievance." 52 In my opinion, the same result should follow in this matter.

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What Occurred 55 The appellants called at the trial Mr Tony Kent. He said that he was the bulk transport allocater of Divall's Bulk Haulage and Earth Moving. On 27 December 2000 Mason telephoned him and told him that Mifsud had been injured. He asked "where Andy was". Mr Kent did not then know. 56 Kent gave evidence in chief: "Q. Just pausing there, who's Andy? A. Andy Divall. Q. Yeah well who is he? A. He's the boss, he's the owner manager or part owner. Q. Is he the son of John Divall? A. Yes he is, yes. Q. Is John Divall still involved in the business? A. Not really actively no." 57 In evidence in chief Mr Kent said that he rang Andy Divall on his mobile and was asked to go to the scene. He did so and found Mifsud pinned under the truck. He asked what happened and was given the reply "I was tilting the tray and the truck ran away. I run round the front to get into the cab to stop it." 58 In cross-examination Mr Kent said that he had made a statement to an investigator from the NRMA. He had not looked at it since a couple of days after making it. 59 The statement was called for. Mr Wilson, then Counsel for Mifsud, claimed privilege, clearly enough under s 119 of the Evidence Act 1995 (the Act) whilst offering to produce the document to the Court but opposing access. 60 At that point the claim was upheld. 61 Mr Kent, still in cross-examination, gave the following evidence: "Q. Does the statement contain a reproduction of the conversation that you say you had with James Mifsud? A. As far as I'm aware, yes. Q. Do you say that that - what is contained in the statement is consistent with your evidence here today? A. Yes." 62 Subsequently, the trial Judge raised the possible application of s 122(2) of the Act. The exchange that followed included the following: "HIS HONOUR: So prima facie there's section 119 privilege. Then we go to section 122. We see that in 122(2) there is knowing and voluntary disclosure of at least some of the contents of this statement because this witness has given evidence and has said in evidence that he said that he included in his statement the conversation with Mr Mifsud, the plaintiff. The question is whether the substance of the communication has been disclosed. The witness has said several times that in various ways he is giving evidence which is contained in this statement. Is there not then disclosure of the substance of the evidence contained in the statement within section 122(2)? WILSON: But is that disclosure of, your Honour, made by the party, the client or a party? Your Honour I've not considered this issue, your Honour could I reflect upon it over - HIS HONOUR: If a client or party calls evidence from the witness. WILSON: Yes that's the argument I can see. HIS HONOUR: That's a disclosure isn't it?" 63 After lunch the exchange continued: "HIS HONOUR: You want to apply to look at the statement. I have raised section 122 with you. I anticipate, as I did yours, Mr Halligan's argument which will be why I shouldn't look at the statement and compare it with the evidence of the gentleman, see if the substance of the statement has been disclosed and if it has give me a look at it. WILSON: Yes. HIS HONOUR: Because they waive privilege he will say. What do you say? WILSON: Your Honour could I raise merely two points in opposition to that argument your Honour raises? The first is that the result of that process is that every witness who gives evidence under oath in proceedings such as these will, in the process of giving evidence be waiving privilege over a document which came into existence and which attracted the client privilege. HIS HONOUR: Whereas the old rule used to be you don't get to look at the statement unless the witness has refreshed his memory from it which this fellow hasn't." 64 Mr Wilson's second point was based on the provisions of s 34 of the Act to which, as the matter has subsequently been argued I do not need to refer, except that during discussion about it the Judge said: "The only one I take away, the elements of section 122(2) are made out when the client or party who has knowingly or voluntarily disclosed to another person the substance of the evidence, and we see some exceptions there which don't include giving evidence in Court, the mechanism is that under section 118 you're entitled to privilege on the document prima facie. That privilege may be waived by disclosing the substance of the evidence. I keep being reminded, of course, that one must forget the common law and approach the Evidence Act in the sense that it makes substantial modifications to the common law. It may be that this is such a modification because the real law, as used to be, you can't get the statement until the witness says he's refreshed his memory --." 65 Mr Halligan accepted that the privilege was that of Mr Wilson's client but went on: …"but as soon as the material is treated to any form of disclosure from the witness box ……" 66 Mr Wilson put that the results of Mr Halligan's argument would be "that every witness who gives evidence, potentially, unveils the privilege on an otherwise privileged communication and if that was the intention of the legislature then it would have been more precisely expressed." 67 The exchange continued: "HIS HONOUR: I see what you mean. I think I should look at the statement and at least before I give a decision arm myself with an opinion about whether or not, in fact, the substance of the evidence has been disclosed before I decide the legal question. You don't object to me doing that? WILSON: Your Honour I'm happy to concede that the substance of the statement has been disclosed by the evidence. ……… HIS HONOUR: When I think of what the interests of justice suggest I do not see any plain words preventing it and I think, on your concession that the substance of the statement is disclosed, I think I should permit it." 68 The document was produced. His Honour making an order "under s 122(2) of the Evidence Act 1995 that statement of witness Mr Kent be produced to the Court and to the plaintiff." 69 Subsequently the document dated 6 September 2001, that is some ten months after the accident and some two and one half years before the trial, was tendered and admitted. 70 The feature which became significant is that in the document Mr Kent said that at the accident he had spoken only to Mason and a fireman. There was no reference to the conversation with Mifsud referred to earlier [49]. 71 This omission was the principal basis upon which the Judge set aside the evidence of Mr Kent.

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The Appellants' Submissions 75 The written submissions pointed out, as was common ground, that Mr Kemp had not attempted to revive his memory from the document. It was put that there was no consent to disclosure and no evidence that the client or party had knowingly or voluntarily disclosed to another person the substance of "the evidence". Consequently, it was argued, the provisions of s 122(2) were not engaged. 76 In further written submissions it was put that inadvertent production of a privileged document did not constitute waiver as it was not "knowingly and voluntarily disclosed to the other side." 77 It was submitted that the two short passages relied upon by Mifsud should not be looked at in isolation but against the background that, amongst other things, Counsel for the appellants continued throughout to assert that the document was privileged. 78 The submissions accepted that "it is a question of fact whether the defendants knowingly and voluntarily abandoned the claim for privilege ……." 79 It was put that the answers did not disclose the substance of the privileged document. In particular reference was made to the absence in the document to any conversation with Mifsud. 80 Section 122(2) was not engaged, it was argued, because, amongst other things, Mr Kent was not a client or party and there had been no comment by Counsel knowingly and voluntarily disclosing the substance of a privileged document. 81 It was asserted that the answering of questions in Court amounted to a disclosure under compulsion of law. 82 It is convenient to say that I will not recount the submissions of the appellants or Mifsud on the issue as to whether there has been substantial disclosure. In my view the concession of Mr Wilson [59] forecloses that issue against the appellants. 83 Mr Bartlett of Senior Counsel, who appeared with Mr Wilson for the appellants, put that there was nothing in the conduct of the appellants inconsistent with their claim for privilege. He submitted that to allow waiver to be held from the simple answer "yes" to the question whether a prior statement had been made would defeat the purpose of s 122.

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Disposition 94 I have set out in some detail the exchanges between the Bench and Bar because it is from those exchanges that the reasoning of the Judge appears. As he observed later the issue was dealt with "on the run". 95 With respect I have come to the view that his Honour focussed on "the interests of justice" in the instant case and the disclosure of the substance of the statement, as conceded, and did not have adequate regard to the elements of the statutory scheme set out in s 122. 96 His Honour seems to have taken the position that the calling by a party of a witness, who subsequently makes substantial disclosure, is sufficient for that to be disclosure by the party. A position Mr King did not seek to advance, albeit the initial written submissions appeared to do so. 97 His Honour did not proceed on the basis that Mr Kent was an employee or agent of Divall and made no reference to the absence of objection to certain questions which form the foundation of Mr King's principal submission. 98 The way in which the Judge has phrased his account of what he puts as Mr Kent's evidence and the observation "if a client or party calls evidence from a witness … that's a disclosure, isn't it" raises the possibility that his Honour thought the relevant evidence had been given in chief. 99 Had that occurred it could be said that, at least, usually, the party had knowingly and voluntarily disclosed the material. However, that was not the position. 100 Whether the Judge did approach the matter in this way or not, his judgment does not establish the necessary foundation for loss of the privilege he had originally upheld. 101 It remains to consider whether the evidence, considered afresh, provides such a foundation. 102 Mr King contended that the failure of Mr Wilson to object to the two questions upon which Mifsud relies [53] amounts to a waiver of privilege such that it should be held that the appellants knowingly and voluntarily disclosed the material of which Mr Kent spoke. 103 I do not agree. 104 As indicated earlier Mr King relied upon the views of Einstein J in Global Medical Imaging Management. In that case a question arose as to waiver of privilege under s 122(2) based upon, amongst other things, the material contained in an unresponsive answer during cross-examination by a witness who was the managing director of a party. 105 Einstein J said at 4: "Once the cross-examiner, even in relation to a non-responsive answer, continues into the general area treated with, and there is no objection in terms of that area and no attempt to have what seems to have been non-responsive, struck out from the transcript, it seems to me that the first defendant no longer has any ground for the proposition that it cannot be taken, by its conduct in the proceedings, to have knowingly and voluntarily disclosed to another person the substance of the evidence or, more particularly, to have acquiesced in the knowing and voluntary disclosure by, in this case, Mr Skrzynski, in that regard." 106 This passage, however, was preceded by the following: "Importantly, the plaintiff's counsel in relation to the cross-examination went further and sought to build upon those earlier answers, doing so in the fashion that I have already set out [appearing at transcript pages 466 to 467]. In short, Mr Rares reminded the witness that he had said that he had formed an opinion that in terminating the Term Sheet, AMIL had acted within its rights, or words to that effect, and asked him what steps he took to form that opinion. The answer was that Mr Skrzynski had instructed Mr Riley to liaise with AMIL's solicitors before sending the termination letter and to get their advice on the wording and ' any issues that we should be aware of in taking that step '." 107 It is clear that the "continuing into" was of significant degree. I do not consider the two questions asked in this matter can be so characterised. 108 Einstein J distinguished a case of Eden Productions v Southern Star Group (2002) NSWSC 116 in which Gzell J rejected a claim of waiver. The basis of the distinction was the relative status of the witness in relation to the Companies by which they were called. However, Gzell J made a number of observations, with which I respectfully agree, of application to the present matter. 109 In Eden an employee of a party in cross-examination gave an answer which was claimed to be a waiver of privilege by the party. Counsel so arguing relied upon an American text, McCormick on Evidence, 4th ed at 131: "Of course, if the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to the communications so disclosed." 110 Gzell J said: "253. The Evidence Act 1995 , s 122(2) provided that Pt 3.10 Division 1 did not prevent the adducing of evidence if a client had knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made in certain circumstances irrelevant for present purposes. Section 117(1) defined the term "client" to include an employee or agent of the client. Section 122(3) provided that s 122(2) did not apply to a disclosure by a person who was, at the time, an employee or agent of a client unless the employee or agent was authorised to make the disclosure. 254. Jealous guarding of waiver of client legal privilege by third party disclosure is a clear feature of the legislation and in that context I gain little assistance from the American text. 255. I did not regard the failure to object to Mr Anderson's testimony as constituting a waiver by the client. In my view, the provisions contrast waiver by the client itself and waiver by an employee or agent of the client. If an employee or agent is said to have waived privilege that cannot, in my view, constitute a waiver in terms of s 122(1) of the Evidence Act 1995 and must be determined under s 122(2) and then only if the authority of the employee or agent is established as required by s 122(3).

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111 I would not, myself, go so far as to say that a failure to take an objection or objections may not in all the circumstances of a particular matter amount to a waiver. Questions of extent and degree could well arise. A relevant factor, as in this case, is the circumstance that a claim for privilege was being pressed and maintained otherwise than for the two relied upon answers. 112 In Sovereign at 5 Austin J, dealing with a situation where a document for which privilege was being claimed was produced by mistake, said of the phrase "knowingly and voluntarily": "Whatever may be the precise limits of those words, they do not apply in a case where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness." 113 I agree with that view. I do not consider, in the circumstances of this matter, that the failure of Mr Wilson to object amounted to a waiver. 114 This is not a case in which the non-objector has sought forensic advantage. The two "yeses" can have added nothing, in a practical sense, to the credibility of the witness or the acceptability of his evidence. Further, it was the cross-examiner who chose to ask the questions. It appears to have been accepted that the questions did nothing to advance the resolution of the issues to be determined other than the possibility that Counsel for the appellants might not be suspicious or alert enough to object. It could not be suggested that Counsel for Mifsud, or indeed the Judge hearing the case, would imagine that Mr Wilson had suddenly decided to abandon the claim for privilege which he had successfully pursued. 115 I accept Mr King's submission that s 122(2)(c) does not assist the appellants for the reasons he put. 116 I do not consider that waiver under s 122(2) has been established whether or not Mr Kent was an employee or agent. 117 A claim based upon s 122(4) fails whether Mr Kent was an employee or agent or not because it is necessary for Mifsud to show the "express or implied consent" of the appellants, or at least one of them. The only matter relied upon to establish such consent is the absence of objection to the two questions mentioned. I do not consider that absence to establish that consent. 118 With respect, neither the Judge's reasoning nor the evidence supports the loss of the privilege initially upheld. 119 Mr King acknowledged that if that were the view taken the appropriate course was to order a new trial. I so propose.

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Ground of Appeal 3 120 The third ground with which I deal (which is ground 4 in the Notice of Appeal) is as follows: "His Honour erred in finding that the actions on the part of the second appellant were relevantly causative as to the plaintiff's injuries" 121 Causation was not raised as a defence at the trial. I am of the opinion that the appellants should not be permitted to rely upon this ground now. However, before setting out shortly my reasons for that view it is convenient to say something of the ground. 122 The foundation for that ground was expressed in the written submissions as follows: "In our submission the sole cause as to his injuries is Mr Mifsud deliberately and voluntarily placing himself in a position of obvious danger in chasing the truck in order no doubt to get into the cabin and bring it to a halt when there was no reasonable need to do so, thereby severing the causal link with any fault of Mr Mason in causing the truck to roll." 123 Mr Bartlett put that the following passage from the judgment of Mason CJ in March v Stramare (E & M H) Pty Ltd (1990 - 1991) 171 CLR 506 "is directly on point". His Honour said at 517: "Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it." 124 Mr Bartlett submitted that Judge Armitage's findings, whilst dealing with the question of contributory negligence [25], so corresponded with this statement of principle that as a matter of law the appellants are entitled to a verdict. 125 I do not agree. The question whether the consequence that eventuated is one not readily foreseeable by A is a question of fact. In my opinion it would be well open to a judge to conclude that, with a number of men standing around a truck which starts to move off, one of them, especially an experienced truck driver, as Mason knew Mifsud to be, might try to enter and stop the truck. 126 The point is not a verdict point and the reasoning in Hampton Court Ltd v Crooks (1957) 97 CLR 367, on which Mr Bartlett relied, does not apply. 127 At the commencement of the trial the following exchange took place: "HIS HONOUR: What are the issues? WILSON: Your Honour, the critical issue on the question of liability is whether or not the driver of the vehicle identified in the pleadings namely the second defendant, a Mr Mason, was the driver of the vehicle at the time the alleged accident occurred. HIS HONOUR: I follow. Who is the alternative? WILSON: The plaintiff. HIS HONOUR: I follow, it's one of those. WILSON: That's the main issue in the case. His honour: All right, I am familiar with that kind of thing. And if the plaintiff gets up on that issue as it were, what's the next? If the plaintiff gets up on that issue. WILSON: Yes, your Honour. HIS HONOUR: Are there threshold issues or anything of that sort? WILSON: Not in terms of general damages, but depending on the evidence, there may be some issues under the Act in terms of economic loss and the like." 128 There was no suggestion that causation was raised as a defence. It was always the appellants' case that Mifsud had attempted to stop the truck. The argument founded upon that contention was that his attempt supported the view that he felt guilty for being responsible for it running away. It was not used at trial on the issue of causation, albeit it was relied upon in relation to assessment of comparative fault on the issue of contributory negligence. 129 Mr Bartlett, as I understood him, put that having lost on the issue as to who was the driver and succeeded on the contention that Mifsud tried to stop the truck, the appellants should be allowed to reframe their case and rely upon an issue not put, although it was available to be put, at the trial. Mr Bartlett put that the Judge having found as he did "then he has to consider the causation point." That is so only if causation was an issue and it was not. 130 In Multicon Engineering Pty Ltd v Federal Airports Corporation (CA, 15 October 1997, unreported) Mason P, with whom Gleeson CJ and Priestley JA agreed, said at 13: "Since this is an appeal by way of rehearing, the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (1986) 162 CLR 1 at 7-9. A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial." 131 The present case is a rehearing and these principles apply. Whilst the facts relating to the alleged attempt to stop the vehicle were quite extensively investigated in the evidence this was not from the perspective of a causation issue. I think there is at least a possibility that additional aspects of the evidence and a different presentation of the case might have met the new ground, to the extent that it existed to be met. 132 In Multicon Mason P said at 13: "However there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court 'may find it expedient and in the interests of justice to entertain the point.' ( Water Board v Moutsakos (1988) 180 CLR 491 at 497). The rule is not an absolute one, as evidenced by this Court's decision in Della Patrona v Director of Public Prosecutions (Cth) No 1 (CA, unreported, 1 September 1985). However: 'It is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial. ( Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR at 24.)' In Coulton , Gibbs CJ, Wilson and Dawson JJ said that: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'" 133 In my view it would not be "in the interests of justice" to permit the appellants to repudiate on appeal the stance they adopted on trial as to the relevant issues - which did not include causation. 134 I propose that the appellants not be permitted to rely upon this ground.

[35]

TOTAL $134,000 137 It was agreed that the minor arithmetical error of $100 should be adjusted when the Court made its orders. 138 The head of damage challenged in the cross appeal was that for "non-economic loss "which the respondent contended should have been for a larger sum. 139 It was accepted by both parties that the Judge had fallen into error in his approach to the assessment of this head. Judge Armitage said: "As I have said, the maximum available to the plaintiff by way of non-economic loss damages is $271,000. The Act does not contain a table, as did the Motor Accidents Act, upon which I am required to place the plaintiff's injuries in proportion to a most extreme case. Nevertheless it seems to me proper when awarding non-economic loss damages to have regard to the maximum available and see where the plaintiff sits in relation to a most extreme case, which words do not appear in the statute but would appear to describe the sort of case where one might award the maximum damages allowable under the statute. Performing this process, it seems to me that the plaintiff falls at about one-third of a most extreme case, and accordingly I assess his non-economic loss damages at $90,000. Under s 137(3) of the Act, no interest can be awarded on this sum." 140 The Motor Accidents Act 1999 provides, in respect of non-economic loss, for a threshold degree of permanent impairment (s 131) and for a statutory maximum which may be awarded (s 134). Neither of these limits have any application to this case. As was pointed out in the respondent's written submission the applicable statutory maximum was in fact $329,000. It does not, as the Judge pointed out, provide for a comparative exercise with a most extreme case or any other such formula. 141 That being so, the appropriate damages are to be determined in accordance with common law principles. Such principles leave no room for the concepts of a most extreme case, a fixed maximum sum (other than as a statutory cap) or findings made on a proportional or percentage basis. 142 The appellants have indicated that they are willing to abide the assessment at first instance or reassessment by this Court. Mr Bartlett submitted that the sum awarded, apart from its method of calculation, was "around the mark". 143 Mr King has not sought a retrial on damages but invited the Court to dismiss the appeal or award a "bit more". He contended that the respondent has suffered a dramatic and serious injury with fractures and surgery and continuing difficulties. The case, he submitted calls for more than $90,000. 144 Neither side challenged the findings upon which Judge Armitage based his award, nor his substantial acceptance of the respondent on matters relating to damages. 145 Accordingly, it is appropriate for this Court to consider for itself an appropriate amount to be awarded for non-economic loss. If the figure is not such as to lead to the conclusion that the respondent has suffered an injustice the cross-appeal should be dismissed. (HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 at [50]). If it is such a figure then, if there is to be a retrial as I propose, it would be appropriate for the Court to make a finding accordingly. 146 Judge Armitage found the respondent's evidence on damages "generally acceptable". He was born on 5 February 1966 in Malta and came to Australia as an infant. He was at the time of the accident and at the time of the trial conducting a turkey raising business. 147 The Judge said:

[36]

"As to pain and suffering, the plaintiff gave evidence that in the accident his body was trapped under the rear wheels of the truck with the differential just about his head and the wheels on his pelvis and right leg. He said that the truck was lifted off him by means of chain attached to the excavator and that he was taken to Goulburn Base Hospital where he remained in intensive care until 5th January 2001. During the time he was in hospital his right leg was swollen and it had to be drained. He had to return to the hospital for the same purpose on 5th February 2001. He was told that he had suffered a pneumothorax, i.e. a punctured lung, on both sides, and had shortness of breath for two or three months after the accident. He also had fractured ribs which caused pain for two or three months after the accident. He still suffers some shortness of breath. He does not take medication for it. He injured both shoulders, one more than the other, which was the left. He is right-handed. He still experiences restriction of movement in both shoulders to a considerable degree, which he described in the witness box. He does not presently take medication for the effect of the accident but takes it for diabetes which is not alleged to be connected to the accident. He is still obliged to elevate the right leg from time to time when it swells. Immediately after leaving hospital he was not able to look after himself, and others had to attend to his personal hygiene. He sat in a recliner chair, as suggested by a doctor at the hospital. He had to sleep in a sitting position. This state of affairs improved in about March 2001 when he was able to sleep in a lying position in the recliner chair. He remained dependent upon his wife until July 2001 and was only able to look around the farm at this time. His parents stayed on occasions for two or three days at a time and helped during this period with looking after the children and the farm. Despite the continuing restriction of movement the plaintiff suffers, he does not currently undergo physiotherapy."

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148 It is not necessary to set out the whole of the Judge's analysis of the medical evidence. His Honour said: "The report of Dr Margaret Beevors, general surgeon, of 22nd January 2001 establishes that the plaintiff suffered in the accident bilateral rib fractures with pneumothorax, a fractured right pelvis (pubic rami), soft tissue injury to the right lower limb and bilateral fractures of the humeral necks, and comments that surprisingly he has recovered well generally. Dr Beevors' subsequent reports describe the recovery process. In her last report dated 9 October 2001 to the plaintiff's general practitioner Dr Loxton Dr Beevors remarks on fairly good range of movement in the right shoulder without pain, and left shoulder abduction being limited to about 50 degrees of active and passive glenohumeral abduction. She says the right thigh has improved a great deal, but that there is still some swelling. ……….. ….. Dr Jerome Goldberg, an orthopaedic surgeon specialising in shoulder surgery, and his report ……. of 6 November 2001 remarks that the plaintiff has bilateral proximal humeral fractures in acceptable position, but that these are complicated by capsulitis. He makes recommendations as to exercise and remarks on the possibility of further surgery in the event of avascular necrosis developing. He did not say this was a probability. ……………… …. Dr Andrew Leicester, orthopaedic surgeon who after requiring an ultrasound, found that there was no full thickness tear of the rotator cuff and simply advised a conservative approach. …………. Dr Loxton, the plaintiff's general practitioner in a report of 26 February 2002 speaks of ongoing disability in the form of pain in the shoulder and restriction and weakness of movement especially on the left side, which wakes the plaintiff at night and causes difficulty in overhead movement. She expects him to achieve three quarters of normal range of motion with a relatively painless shoulder. She does not comment on the other continuing disabilities to which the plaintiff drew attention in his evidence, which I accept. …………. Finally in the plaintiff's medical case, Dr Richard Deveridge, orthopaedic surgeon provides a report of 24th June 2003 addressed to the plaintiff's solicitors on a qualified basis, and he refers to the plaintiff's ongoing disability as being referable to bilateral shoulder fractures and extensive contusions to the right lower limb. He thinks the multiple fractured ribs and bilateral pneumothorax and the fractured pelvis are reasonably recovered, but I note the plaintiff's ongoing complaints as to shortness of breath and I accept them. Dr Deveridge refers to a lumbar strain injury, but there is no reference to that in the treating materials as I read it and I [am] not prepared to accept that the plaintiff suffered such a strain in the accident. Apart from that, I accept Dr Deveridge's opinion as it seems reasonably congruent with the plaintiff's symptoms, which I accept as truthfully described in the witness box, and with the opinions of the treating doctors. Dr Deveridge finds the plaintiff restricted on an ongoing basis from performing heavy physical work, and especially heavy lifting, pushing, dragging and reaching actions. Such actions are likely to be involved in most if not all of the occupations I have listed above as being those in which the plaintiff engaged before the subject injury, and before he took up turkey farming. That the plaintiff would experience a considerable degree of restriction in these occupations is undoubted. I shall come to that fact when dealing with the question of future economic loss."

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Judgment (43 paragraphs)

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Cases Cited (13)