Gray v Robbins [1999] VSCA 30

5. After a hearing lasting some six days in February of 1998, the jury returned a verdict for the respondent. The judge entered judgment for the respondent in accordance with that verdict and ordered the appellant to pay the costs of the action.

8. By her notice of appeal filed on 5 March 1998, the grounds of which were amended by leave given by this Court today, the appellant appeals against the verdict and judgment and seeks a new trial. The point of her appeal is really a very narrow one. The appellant contends that the trial miscarried as a result of the trial judge wrongly admitting into evidence, over the objection of appellant's trial counsel, a written statement made by one Dr Kim Glass on 16 February 1998, and, further, by reason of the trial judge's inadequate directions to the jury in respect of the use which they could or could not make of that statement.

11. The judge admitted the statement into evidence pursuant to the provisions of s.55(1) of the Evidence Act 1958 which provides (insofar as is relevant):

"(1) In any legal proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if - (a) the maker of the statement had at the time of the making of the statement personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding."

Sub-section 5(b) of s.55 relevantly provides that the condition that the maker of the statement be called as a witness need not be satisfied where:

"He is out of Victoria and it is not reasonably practicable to secure his attendance".

Sub-sections 7 and 9, which are also relevant to the matters raised in the appeal, are as follows:

"(7) The court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in sub-section (1) or sub-section (2) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence, notwithstanding that the maker of the statement or the person who supplied the information (as the case may be) is available but is not called as a witness." "(9) The court may in its discretion reject any statement or defer the admission of and subsequently reject any statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be then admitted or, as the case requires, should be admitted at all."

19. The statement of Dr Glass, which was read to the jury, but not introduced into evidence as an exhibit, was in a somewhat unusual form because it is intituled "Statement of Dr Kim Glass", but purports to have been "sworn at Christchurch" on 16 February 1998 before a person who described himself as a "Pharmacist".

"I am a legally qualified medical practitioner. I worked at the Sandringham Hospital between February 1994 and October 1994. I am now working at Lyttelton Health Centre as a general practitioner. I am unable to attend Court as I presently reside in New Zealand. I saw the plaintiff in the Casualty Department of the Sandringham Hospital on 5 April 1994. It appears that I saw the plaintiff at around 10.10 a.m. and that I made the following entry: `Lacerated right lower leg (shin) on piece of wood in the bush on Sunday night. No active treatment initially as none available. Has had it dressed by clinic. Has not been able to afford to fill in script! On examination - open wound right lower shin - ?needs grafting - plan/W (discussion with) Mr Robbins - admit - NBM (nil by mouth) from lunch - IV cephlin (pen. allergic) - consent Ph: (previous history) - asthma, on prednisilone - last 2/7 (2 days) 5-6 cms x 2 cms Looks slightly infected.' I filled in the consent to operative treatment form and witnessed the plaintiff sign this form prior to surgery on 5 April 1994. I do not recall obtaining the plaintiff's consent or signing the consent form. If I was present when Mr Robbins saw the plaintiff and explained the nature of the surgery to the plaintiff I would not go over that again but would execute the consent form if the surgeon had not done so. I cannot recall whether Mr Robbins saw the plaintiff prior to surgery. My recollection is that he was a surgeon who was generally available and was the surgeon that I most often saw in the Emergency Department compared with other surgeons. I do not believe I would have been sufficiently experienced to decide whether or not the plaintiff required a skin graft. I am positive that I would have contacted Mr Robbins before discussing treatment of the plaintiff and the need for admission. It is likely that he would have seen the plaintiff before she was admitted to theatre. If I explained to the plaintiff the nature of the operation which she was undergoing I would have told her: 1. That she needed an operation which would probably be performed under a general anaesthetic although this depended upon the surgeon; 2. That the precise nature of the operation would be decided by the surgeon and not by me; 3. That with a split skin graft, skin would be taken from the donor site which would be decided by the surgeon and that a scar might be left at that site, the wound would be cleaned and the graft would be applied and that it would take some time to heal; 4. That the healing time would depend on the operation and how it went. I did not nominate the donor site on the consent form. I would not have obtained the plaintiff's consent to the use of a particular donor site because this is a matter for the surgeon to decide. I would not have volunteered to a patient that they would be required to stay in hospital for any set period of time following an operation as the period required for recovery depended on the result of the operation."

24. Dr Glass, the maker of the statement, had been on 5 April 1994 the admitting medical officer at the Sandringham Hospital. At the time of trial she was living in and practising in Christchurch New Zealand. The appellant contends that, as a consequence of the improper admission of her statement, a substantial miscarriage of justice has occurred as a result of which this Court should be prepared to set aside the verdict and orders made below and grant a new trial - see Rule 64.23(2) of the General Rules of Procedure in Civil Proceedings 1996; Howarth v Adey [1996] VICSC 4; [1996] 2 V.R. 535 at 542.

27. In order to better understand the point at issue, it is necessary to refer, briefly, to the relevant evidence given at the trial and the issues which it raised.

30. It was not in contest that the appellant, then aged 20, had suffered a penetrating wound to her right shin and Easter Sunday of 1994 when she was on a camping holiday and stumbled over a tree stump. The wound was apparently painful and did not resolve quickly. On Easter Tuesday she went with her mother to the Sandringham Hospital.

33. They arrived at the hospital at about 9.30 a.m. What happened thereafter is the subject of dispute. The appellant and her mother said that, in the casualty ward of the hospital, they spoke to a lady doctor (now identified as Dr Glass) who told the appellant that she would probably need a skin graft. The appellant said Dr Glass explained to her the nature of the operation and told her that the "donor site" was usually the buttocks or the thigh and asked her which she would prefer. She nominated "the thigh". Glass then said she would have to call the plastic surgeon on the telephone. She then left the room, presumably to do so, and returned to say that the surgeon could do the operation on the afternoon of that day. The appellant was then given by Dr Glass a form entitled "consent to operation" which she signed.

36. The appellant's mother corroborated this evidence in its material respects. The "consent form", dated 5 April 1994, was produced at the trial as Exhibit A. It was signed by the appellant and also by Dr Glass "in confirmation". The form noted that the appellant consented to "the operation of skin grafting to laceration (of) right lower leg being performed upon myself" and that "the nature and effect of the above operation have been explained to me by Dr Kim Glass". The appellant's signature to the "consent" was witnessed by Dr Glass who also confirmed that she had "explained to the patient the nature and the effect of the above operation" and that "in her opinion, she (that is the appellant) understood this explanation".

39. The appellant said she was then admitted to the hospital and put into a bed in another ward. The, "Patient Registration" card, also in evidence, shows that the ward that to which she was admitted was "ward F2" and that she was admitted for "a minimum period of 1 night". The card also records that she was admitted at 11 a.m. The "casualty card" of the hospital, which was also produced at trial, records the time of the appellant's attendance in casualty as "9.50 a.m."

42. The appellant's mother said that, not only was she present in the casualty ward when Dr Glass gave the explanation of the operation to which the appellant attested, but also that she accompanied the appellant to the bed ward where she remained with her for some time until she went home to get lunch for her husband. She later returned to the hospital at about 1.30 to 2 p.m. and remained with the appellant until sometime after 3 p.m.

45. The appellant said that at no time before the operation did she speak to the respondent. She said that in the afternoon she spoke to the anaesthetist prior to the administration of an injection. She said she was taken to the operating theatre and next recalls waking up in a recovery room, whence she was taken back to the ward. She said that she was suffering severe pain in the right foot and, when she had asked why, she was told that skin had been taken from her right instep which she said was contrary to what she had been told was going to happen and contrary to the instructions she had given to Dr Glass. She said the first time she spoke to the respondent was on the following day, 6 April 1994, at about 4.00 p.m. when he was doing his rounds. She said that she then asked him why he had taken skin from her instep and that he had replied words to the effect that "it was appropriate". She also said that, if she had been told that the instep was to be the donor site, she would not have agreed to it. The appellant's mother said that at about 12.30 p.m. on the day following the operation she had returned to the hospital to see the appellant and was present when the respondent arrived. She confirmed that she was present when the appellant asked him why skin had been taken from the foot and not the thigh and she basically corroborated the appellant's evidence of the doctor's response.

48. It was this evidence which formed the basis of the appellant's case against the respondent. It was her case, for which support could be found in the evidence, that it was not only highly unusual but also inherently risky to take skin from the instep for the purposes of grafting. Not only was the site productive of poor quality skin, but because it was a pressure and weight bearing site, it exposed the patient to the risk of slow healing, pain and infection, to all of which risks the appellant claimed she had succumbed. It was, thus, the thrust of her case that the respondent should have advised her about these "material risks" inherent in the operative procedure which he had chosen to perform and thereby given her an informed choice as to the site from which the "donor skin" was to be taken. It was the failure to consult her and to inform her of the risks inherent in the operation, so that she could make the choice as to whether she would accept them, that underlay her allegation of negligence against the doctor. (See Rogers v Whitaker [1992] HCA 58; (1992) 175 C.L.R. 479; Chappel v Hart (1998) A.L.J.R. 1344 at 1357 (per Gummow, J.) and 1366 (per Kirby, J.).

51. The evidence upon which the appellant based her case was strongly disputed by the respondent. His evidence was that he had seen and consulted with the appellant and had explained the nature of the treatment. He said that he had seen her in the casualty ward of the hospital and had found her to be a difficult patient, which caused him to remember her. He said that she had at first refused to come into hospital and then refused to have treatment of an operative kind and had only, when pressed, consented to a skin graft. He said that she had specifically refused to allow skin to be taken from the thigh because the scar would be unsightly and it was because of this that he raised with her the possibility of taking skin from the instep, a more obscure site. She had agreed to this but he said that he told her that he would "reserve the right to take the graft from her thigh in the theatre if it proved to be impracticable to take it from the instep". She agreed to this, he said, and it was on this basis that he admitted her into the ward. He said he had told her that she would have to remain there for "up to three weeks" and, although she protested, she eventually reluctantly agreed.

54. The respondent's evidence in this respect was tested. He agreed that he had "billed the hospital for a pre-operative consultation" but denied that that was the reason he was now saying that he had had one. His "consultation list" for that day, which was Exhibit D at the trial, was put to him. This showed that he had arranged it see patients at quarter hourly intervals at his Cheltenham rooms between 9 a.m. and 12.15 p.m. Exhibit D showed that the patient he had arranged to see at 12 noon (one Prasad) had not been "crossed off" the list but no evidence was given as to what that designated. The "list" also showed that he had arranged to see patients at his Frankston consulting rooms at quarter hourly intervals between 2 p.m. and 3 p.m. It was put to him that with such a full list of appointments it was unlikely that he had seen the appellant in the casualty ward in the morning, to which he agreed, but he said that he may have seen her between 12.30 and 1 p.m. or, alternatively, after 3 p.m. when he had finished at Frankston. He could not say ultimately which time it was. He also said that Dr Glass was or may have been present when he explained the treatment to the appellant, after which he caused the "consent form" to be signed. He agreed that the operation had taken place at about 4 p.m. It was not in dispute that the operation which he had performed was carried out in a competent manner.

57. It will be obvious from the recital of this evidence that there was a real dispute at trial as to whether a consultation had occurred between the appellant and the respondent before the operation, in the course of which the respondent had explained the nature of the treatment which he had proposed to give and to which she had consented. It was in respect of this dispute that the statement of Dr Glass became significant. It became significant because the matters in it were, in my view, capable of being used by the jury either as providing corroboration of the respondent's evidence upon the critical factual dispute in the case or as being potentially destructive of the appellant's evidence in respect of that dispute. In particular her statement that "it is likely that he [i.e. Robbins] would have seen the plaintiff before she was admitted to theatre" went to the heart of the matter in dispute.

60. The admission of the Glass statement, no doubt because of its assumed significance, became the subject of debate at the trial. Its existence was first canvassed on 16 February 1998 when the appellant's case was about to close. Counsel for the respondent told the judge that he "foreshadowed" having a signed statement from Glass which he would be "seeking...to have admitted" pursuant to s.55 of the Evidence Act. At that stage, counsel for the appellant said that he would "have to consider our position on that".

63. On the following day, 17 February 1998, counsel for the respondent produced the signed statement of Glass and said that he proposed to tender it pursuant to s.55. Counsel for the appellant objected to its tender on a number of grounds. These included:

(1) That it had not been demonstrated that it was not reasonably practicable to secure the attendance of Glass as a witness at the trial. (See s.55(5)(b).)

(2) That its admission should be refused under ss. (9) of s.55 because the interests of justice warranted its exclusion. It was said that the statement was self-contradictory and, in any event, wholly based on supposition. It was, so it was said, unfair to allow in such a statement when the maker of it could not be cross-examined.

(3) That it was produced at the "eleventh hour" and the attendance of the witness could easily have been secured or, alternatively, arrangements could have been made to secure her evidence by way of video link.

69. The matter was stood down to see whether arrangements could be made to secure the evidence of Glass by video link. Counsel for the respondent eventually announced that such facilities could not be arranged advantageously to Glass until 3.30 p.m. on the following day. He submitted that "it is not very satisfactory to wait for a whole day". Appellant's counsel contended that the matter should be adjourned until the video link could be arranged, to which respondent's counsel responded:

"I would be very reluctant to apply for an adjournment of this case for 24 hours given the evidence foreshadowed in that statement. It would be different if Dr Glass was a critical witness in the sense that 'Yes, I can remember exactly what happened...' but it is not that sort of evidence". To which his Honour replied: "Yes, certainly she does not seem to have much of a memory of what happened".

73. His Honour then ruled that it would be "appropriate to admit the statement in evidence, subject to my making appropriate comments with respect to the fact that the maker...has not been subjected to cross-examination and, in general, the nature of the evidence contained... . There is not much in the way of positive statement...of Dr Glass, but rather a fair bit of supposition... . But I will certainly be commenting upon what weight should be given to it...".

76. It seems that his Honour took the view that the document containing the statements of Dr Glass should not be given to the jury as an exhibit but, rather, should be read to the jury by counsel for the respondent. Counsel for the appellant continued to object but the statement was in fact read. Following that counsel for the respondent closed his case.

79. On 17 February 1998 counsel for the respondent addressed the jury. He does not appear to have mentioned Glass' statement or its imperfections. Counsel for appellant also addressed the jury on 17 February and the following day. He referred to Glass' statement in some detail, noted its inconsistencies and suppositious nature and invited the jury to reject the respondent's account that he had consulted with the appellant before the operation.

82. His Honour "summed up" the case to the jury on 18 and 19 February 1998. In the course of doing so he referred to the statement of Glass on two occasions. On 18 February his Honour said:

"You consider what the witness has to say both in evidence-in-chief and cross-examination, remembering that cross-examination is the tool employed by the law to test the evidence as well as the credibility of those who give it. In that respect you will recall that the statement of Dr Kim Glass, who is in New Zealand was read to you. Although she swore up to that statement, her evidence has not been tested by cross-examination in the manner that other witnesses have so that is something to bear in mind with respect to her evidence which is before you in the form of that sworn statement having been read to you. I will say something further with respect to her evidence when I come to it particularly".

86. On the following day his Honour returned to Glass' statement. He said:

"With respect to that period there is also the statement of Dr Glass which was read to you. As I mentioned to you, it has not been subjected to cross-examination in the manner that the rest of - the other witnesses has been and so you have to bear that in mind in deciding what weight to give to her evidence as read out to you. In her statement she said that she did not recall obtaining the plaintiff's consent on signing the consent form and that she cannot recall whether Mr Robbins saw the plaintiff prior to surgery. Her evidence in general certainly gives the impression that she has not got any real recollection of what occurred and you might recall that on more than one occasion she says, 'I would have done this and I would have done that' rather than having any actual recollection of what occurred. It is not surprising, I suppose, that she does not have an actual recollection of what occurred. As I say, there is a fair bit of supposition there and I think it is a question as to what weight you can give to her evidence because of those matters I have just referred to."

That, as it seems to me, is the sum total of what his Honour said to the jury about the statement which he admitted into evidence. Whether or not it was substantial compliance with his Honour's previously stated intention that he would "certainly be commenting upon what weight should be given to it" is, in my view, debatable.

91. Some time after the jury had retired on 19 February 1998 the judge re-assembled the court to tell counsel that "some matters have come out from the jury". He read to counsel two questions which the jury had asked. They were:

"1. We, the jury, would like to know what happened to Mr Robbins' 12 o'clock appointment with Mr Prasad at the Cheltenham rooms as it is not crossed out. 2. Can we have the statement by Kim Glass?"

95. Counsel agreed that the jury should not be given the statement of Dr Glass. Counsel for the appellant maintained his submission that the document was, as he put it, "an utterly mischievous document" which should neither be tendered to the jury nor re-read. He reminded his Honour of his objections to the document and that "it has now become very apparent that real weight is being applied to this evidence". His Honour, in answer to the jury's questions, told them that there was no evidence before them as to what had happened to the 12 o'clock appointment with Mr Prasad" and that they should not speculate about it. He further told them that as "as a matter of fairness" they should not be given the statement of Dr Glass but that he would read it again to them. This he did. He jury retired. Shortly afterwards they returned a verdict in favour of the respondent.

98. On this appeal it was submitted by Mr Forrest, Q.C., who appeared with Mr Webster for the appellant, that his Honour should not have allowed the tender of the Glass statement and he further submitted that, in the events which had happened, it was clear that the statement's admission and the directions given in respect of it had caused a substantial miscarriage of justice to occur.

101. Mr Forrest submitted that s.55(1) only permits statements in a document to be admitted if those statements tend to establish a relevant fact in issue at the trial. He contended that the statements made in the document by Dr Glass were merely based on supposition and could not in any shape or form be properly admitted to establish any relevant fact in issue at the trial and certainly were not probative of the critical fact as to whether there had been consultation between the appellant and the respondent in which advise as to treatment had been given.

104. Although this objection to the admissibility of the statements had not in form been made at the trial, Mr Forrest contended that it was necessary for the trial judge to have turned his mind to the admissibility of the statements before he could admit them or determine whether, in the exercise of his discretion, they should be excluded.

107. Mr Forrest further submitted that, in any event, the judge had wrongly admitted the evidence because he could not have been satisfied on the material before him that it was not reasonably practicable to secure Dr Glass' attendance either in person or by the application of the provisions of s.42E of the Evidence Act which enables the court to direct, inter alia, that a person give evidence to the court by audio visual link from any place outside Victoria.

110. Mr Forrest also submitted that the trial judge had failed properly to exercise his discretion under sub-s.(9) of the section. In support of this submission he contended that his Honour had not in terms considered whether it would be inexpedient in the interests of justice to admit the statement which he was prepared to categorize as "supposition" and that if he had, in fact, turned his mind to the justice of the matter, including the fact that the statements had been produced after the appellant and her mother had given their evidence, he would have been driven to the conclusion that the interests of justice required the exclusion of the material.

113. In response to these submission, Mr Brookes, who appeared on behalf of the respondent in this Court, submitted that the judge was entitled to find that it was not "reasonably practicable" to ensure the attendance of Dr Glass because "reasonable practicability" involves a balancing of expense against the significance of the statements. In the environment of the trial, he submitted, it was clear that the judge had taken the view, which Mr Brookes said was correct, that the statements were of no great significance in the context of the evidence. Although he conceded that many of the statements made by Dr Glass did not tend to establish the truth of any material fact, his submission was that they were too innocuous as to drive this Court to the conclusion that a miscarriage of justice has occurred.

116. I have not attempted to canvass all of the arguments addressed to this Court this morning by counsel. However, having considered the matters which have been put to us, I am, for my own part, not in doubt that the learned judge was wrong to have allowed the statement of Dr Glass to go before the jury - even in the form which it did.

119. In the first place, it seems to me that the statement did not comply with s.55(1) of the Evidence Act. If the relevant fact to be proved was that "the respondent had consulted and advised the appellant pre-operatively", I would not regard a statement to the effect of "I do not recall whether the respondent saw the appellant prior to surgery; but it is likely that he would have seen her before she went to theatre" as a statement tending to establish the relevant fact. Whether one regards the appropriate test as the evidential admissibility of the contents of the statement (per Sholl, J., Tobias v Allen (No.2) [1957] VicRp 32; [1957] V.R. 221 at 224-5) or the "probative value" of the statement (per McLelland, J., Ritz Hotel Ltd v Charles of the Ritz Ltd (1987) 14 N.S.W.L.R. 107 at 111-2), it seems to me that this statement fails the test. Furthermore, it seems to me from the face of the statement itself that the maker had, at the time when she made it, no personal knowledge of the relevant fact to be proved.

122. Similarly, and for like reasoning, it seems to me that if the relevant fact was that "the nature of the operation was explained to the appellant by the respondent and not by Dr Glass", I would not regard a statement to the effect that "I do not believe that I would have decided that she required a skin graft, but if I explained the nature of the operation, I would have told her that its precise nature would be decided by the surgeon" as a statement tending to establish the relevant fact. Indeed it seems to me that the statement of Dr Glass was not probative of anything touching the critical issue in dispute at all. It was however, as I have said, material which could well have been used by the jury to discredit the evidence given by the appellant and her mother.

125. I do not accept the submission made by respondent's counsel that the introduction of the statement could not have caused a miscarriage of justice simply because Dr Glass had no recollection of any consultation between the appellant and the respondent. In my view, heavily underlying the whole of Dr Glass' document containing the statements which it did was the innuendo that the respondent would have advised the appellant pre-operatively. Even if the contents of the statement could have been admitted as evidence of "usual practice", which I would take leave to doubt, it was not open for Dr Glass, in my view, to speculate, as it seemed to me that she was doing, what the usual practice of the respondent was or might have been. It was not suggested by counsel for the respondent, when he sought to tender the statement, that such was the real basis of its tender. Rather, it seems to me that he was telling the judge that its admission would do no harm because it was not really probative of anything.

128. Even if the statements, or some portion of them, were admissible pursuant to s.55, I am of the opinion that the judge was in error in not excluding them pursuant to his discretion to do so under sub-s.(9) of the section. The statement was sought to be tendered at the end of the appellant's case and after the evidence of the appellant and her mother had been given. They had therefore no real chance to deal with its contents whilst they were in the witness box. I am also of the view that it has not been established at all that it was not reasonably practicable to secure the attendance of Dr Glass. It was relevant, in my opinion, that a video conference link could have been established within 24 hours to test both the relevance and the admissibility of Dr Glass' evidence and, if admissible, to enable her credibility to have been tested by cross-examination. In these days of modern technology, and particularly in the circumstances which existed here, where those advising the respondent were clearly responsible for the disadvantage caused to the appellant, it seems to me to be impossible to contend that Glass' attendance could not have been secured or that it was in the interests of justice not to grant a short adjournment to enable such evidence to be given by way of video link.

131. The events which followed the admission of Dr Glass' statement, as I have recited them, tend in themselves to demonstrate the prejudice which has been caused by its admission. Very little seems to have been done by the learned judge to make good his avowed intention, stated at the time of admitting the statement, to comment on the weight which should be attached to the statement. Indeed his comment to the jury that the statement was the evidence of Dr Glass and "sworn up to" by her, might well have had the opposite effect. To then simply tell the jury that the fact that the appellant was unable to cross-examine Dr Glass was something that they had to "bear in mind in deciding what weight to give to her evidence" does not seem to me to be the sort of comment which the judge was, in the circumstances, required to make. The fact that the jury was intending to give the statement "weight" of some kind seems to me to have been reflected in the questions which they ultimately asked.

134. When evidence has been wrongly admitted, it is not for this Court to proceed into inquire into the facts of the case and to form its own conclusion as to what the jury would have done had the trial proceeded in conformity with the law. Unless the result would inevitably have been the same notwithstanding the wrongfully admitted evidence, it seems to me to be outside the province of this Court to speculate upon what the jury would have or might have done. It is enough that the evidence wrongly admitted was material to the determination of the case (Balenzuela v De Gail [1959] HCA 1; (1959) 101 C.L.R. 226 at 236-7 per Dixon, C.J.). For the reasons that I have given, it seems to me that this statement was indeed material to the determination of this case by the jury. In those circumstances, and notwithstanding the view that I have that the expense which has been mentioned in this case has out-stripped its worth, I find myself without any alternative but to uphold the appeal and order a new trial.

139. I agree. I would only add a comment on something that does not fall for decision.

142. In the course of the charge the judge dealt with the drawing of inferences saying, "You can only draw an inference if, on the facts otherwise established, that is the only inference which is reasonably open". No exception was taken to this direction but it does not accord with my understanding of the position in civil litigation where the standard of proof is not beyond reasonable doubt.

145. I add this comment because recently I saw the same error in another charge in the County Court which fell for examination on appeal, and in the hope that the error does not become a common one.

(2) That the verdict of the jury and the judgment entered by the trial judge on 19 February 1998 be set aside;

(4) That the costs of the trial of February 1998 be reserved for the judge at the new trial.

We will direct that the respondent be entitled to a certificate under s.13 of the Appeal Costs Act.