Court of Appeal (Vic)|2014-02-06|Before: Mr J, Whelan JA, As Whelan JA, Warren CJ

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3 (6 February 2014)

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE ARCHDIOCESE OF MELBOURNE

1 The facts of this matter are set out in the reasons of Whelan JA, which I gratefully adopt. The trial, which was before a jury, concerned the appellant's claim for damages for personal injuries allegedly suffered in the course of her employment while working as a cleaner at a suburban school. The appeal largely concerns whether the trial judge erred in failing to discharge the jury following statements made by senior counsel on behalf of the second respondent ('the school') in his closing address.

Grounds 1-3: Discharge issue arising from closing address

2 As Whelan JA notes, the closing addresses began on 3 December 2012, after the trial had been running for 16 days. Senior counsel for the school went first and commenced his address shortly after 10.47 am. Counsel began by discussing the mechanism of the appellant's accident and focused on drawing out various inconsistencies between the evidence given by the appellant and that of an expert witness called by the appellant, Dr Cubitt, and other lay witnesses, as to the circumstances surrounding the accident.

3 The appellant's capacity as a historian was squarely in issue at the trial. In the address of counsel for the school, the appellant's version of events was scrutinized. It was put directly to the jury that the appellant was an unreliable historian. There was also stringent analysis and criticism of the evidence of Mr Dohrmann, another expert retained by the appellant.

4 At 11.31 am, there was a short adjournment and approximately 10 minutes later, the jury returned and senior counsel for the school continued. Counsel informed the jury that he would move to a new topic and proceeded to focus on the inconsistencies which he alleged existed between the account given by the appellant at trial and the 'assumed facts' as set out by Mr Dohrmann, which were based on his interview with the appellant shortly after her accident. Approximately eight minutes into this topic, senior counsel made the remarks which formed the basis for the application by the appellant that the jury be discharged:

This [referring to the alleged inconsistency in the versions of events] was recognised during the course of the trial by the legal team acting for the plaintiff and led to Mr Dohrmann being instructed to alter his report and to change many of the assumed facts so that an appearance of consistency would be provided to you. If that had happened, then you would have been misled. The plaintiff's legal team and Mr Dohrmann, however, didn't get away with it. Their attempt at deception to you about the assumed facts was exposed.

- - -

In this case the plaintiff's legal team imposed on Mr Dohrmann to abandon his duty to the Court for the purpose of obtaining a forensic advantage for the plaintiff, namely, to present her as a reliable witness when indeed the opposite was true. Mr Dohrmann, acting in accordance with the rules of conduct, should have resisted that pressure and refused to alter his report because he would have honestly believed that he had set out her version of events as she narrated them to him out at the [school]. But no, you know, he prepared a third report meekly complying [with] the request of the plaintiff's team.

5 Senior counsel for the school's address concluded at 12.51 pm that afternoon when the jury left for lunch.

6 At the conclusion of the school's closing senior counsel for the appellant foreshadowed that an application would be made for the discharge of the jury. The application was made when the Court returned after lunch.

7 The trial judge, after discussion with counsel and having reviewed the transcript, proposed that the first respondent ('Scholastic Cleaning'), the appellant's employer, commence its address and indicated that he would deliver a ruling on the application the following morning, prior to the appellant beginning her address. His Honour did so, and refused the application. His Honour stated that he was 'satisfied that a proper basis was established in cross-examination' for the comments made by senior counsel for the school. He noted both that the appellant had not yet closed her case when Mr Dohrmann was cross-examined and so was in a position to address the issues raised by the comments, and that no point was taken by counsel for the respondents seeking an explanation of the involvement of the appellant's legal team in procuring a third report from Mr Dohrmann which was not served on them.[1] His Honour went on:

The issues addressed by [senior counsel for the school] in his address are relevant, except in one respect that I will explain, and I do not consider that [counsel] made those observations calculating to improperly influence the jury.

8 His Honour referred to various authorities including Baulch v Lyndoch Warrnambool Inc,[2] Croll v McRae[3] and Smout v Smout & Anor[4] and observed that the Court had the discretion to discharge the jury if by reason of inflammatory, irrelevant or prejudicial material in counsel's address, the trial judge considered that a fair trial was no longer possible.

As I have outlined, in my view [counsel] mostly had a solid foundation for his comments to the jury. However, I am concerned that a false issue may be discerned by the jury and rise inappropriately in their deliberations, which is whether the largely unexplained involvement of the plaintiff's legal team in the conduct of Mr Dohrmann warrants characterisation of the conduct of the legal team, and [senior counsel for the plaintiff] as its head, in the same terms as [senior counsel for the school] puts against Mr Dohrmann. [Senior counsel for the school] has eschewed that intention and on considering the whole of his address on this aspect of the matter, I am satisfied that he has directed the thrust of his submissions to two relevant issues that I broadly describe as whether Mr Dohrmann is an unsatisfactory and unimpressive expert witness and whether the plaintiff is a reliable historian about the events in April 2005.

Nonetheless, a false issue might be placed in the minds of the jury that they may not just use the evidence about the interaction between Mr Dohrmann and the plaintiff's legal team since the trial commenced to evaluate the evidence of Mr Dohrmann, and having done that, draw inferences about the plaintiff as an historian, but can go further and draw adverse conclusions about the plaintiff's legal team itself, that they or some of them have been deceptive or sought to mislead the court, or even that the plaintiff Mrs Hudspeth may be part of, or responsible for, that conduct. Permitting a submission that raises the prospect of that false issue raises a prospect there may be unfairness to Mrs Hudspeth in the conduct of the trial.[5]

10 His Honour then referred to the fact that it appeared to him that the jury were 'applying themselves assiduously to their task' and stated that he was satisfied that an appropriate direction could be given about the 'false issue', which he proceeded to discuss with counsel.

I agree with the view of all counsel that it is preferable that [senior counsel for the plaintiff] have the opportunity to address the jury as he sees fit and that an immediate direction will inappropriately highlight what is not an essential or crux issue in the case. I have no doubt that the jury will, in the meantime, consider fairly [senior counsel for the plaintiff's] address without perceiving him as speaking from a position of having previously attempted to deceive them.

12 As was discussed (and expressly agreed to by counsel for the appellant), a direction was not given immediately.[6] Instead, senior counsel for the appellant delivered his closing address and the direction was not given until shortly before lunch on Monday 10 December 2012. As counsel for the appellant would have known the estimated duration of his address, he could be taken to have understood there would be a gap of some days before the jury heard from the judge on the topic.

13 The trial judge's refusal to discharge the jury following the remarks of senior counsel for the school is the subject of grounds 1 - 3 of the appeal. The relevant legal principles that govern the question whether a jury should be discharged were not in contest between the parties. These are helpfully set out in the reasons of Whelan JA.[7] There, his Honour refers to the decision in Reza v Summerhill Orchards Ltd[8] which states that, when faced with an application of this kind:

The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief. If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authoritative direction to the jury. If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.[9]

14 I would raise two additional observations. First, as Osborn JA (with whom Santamaria JA and I agreed) held in Brotherhood of St Laurence v McCabe:

The system of trial by jury is not premised upon the proposition that a jury will hear nothing prejudicial to a party. Rather, it assumes that save in exceptional circumstances juries will be capable of deciding matters (both civil and criminal) in accordance with directions by the trial judge despite hearing matters prejudicial to a party in the course of the trial.[10]

15 In addition, as Whelan JA states in his reasons:

[W]here an application to discharge the jury has been refused by a trial judge, appellate courts ought to act with great caution, and ought to interfere only in cases where it is plainly demonstrated that the trial judge's discretion miscarried and that to allow the decision to stand would be inimical to the interest of justice.[11]

16 The question for this Court is whether allowing the verdict to stand would be inimical to the interests of justice. In answering this question, all the circumstances of the proceeding are to be taken into account.[12] This will most often involve difficult questions of fact and degree and each case will turn on its own facts. When a jury has been exposed to comments that have the potential to unfairly prejudice the jury against a party, an assessment must be made as to whether, in the context of the proceeding as a whole, there is a real risk that the conduct complained of will distract the jury from the proper performance of their duties. The nature of the assessment required means that the trial judge is typically best placed to make it, and is the reason why appellate courts, which do not have the benefit of sharing the courtroom with the jury as the proceeding unfolds, must act with appropriate caution.

17 In my view, the following factors are of significance.

18 First, the trial judge, following discussion with counsel and after reviewing the transcript, turned his mind to the degree of prejudice which had been created by the conduct complained of, and then considered whether any direction to the jury about those matters would be capable of overcoming that prejudice. His Honour concluded that a false issue had been raised, but that it could be overcome. It is apparent that his Honour had been paying close attention to the jury during the 16 days of the trial and was confident of his ability to assess whether the comments of senior counsel for the school would distract them from the proper performance of their task, and if so, whether an appropriate direction could cure this.

19 Secondly, as the trial judge found, the thrust of the school's closing was directed to establishing that Mr Dohrmann was an unreliable witness, and that the appellant was an unreliable historian. The foundation for these points had, as the trial judge noted, been established in cross-examination. It was in the context of emphasising this that the comments complained of were made. This was not a case where counsel sought to raise false issues to distract the attention of the jury from the true issues that they were to determine.[13] Rather, the comments were made as part of an attempt to focus the jury on issues that were highly relevant to what they were to determine.

20 Thirdly, senior counsel for Scholastic Cleaning, who followed senior counsel for the school, commenced his address by also focusing on the inconsistencies in the appellant's evidence. Like senior counsel for the school's address, his address also sought to undermine the evidence of Mr Dohrmann though it made no reference to the conduct of the appellant's legal team. The effect of this address was to draw focus away from the 'false issue' raised by senior counsel for the school and to emphasise to the jury that the issues of the appellant's reliability as a historian and Mr Dohrmann's credibility as an expert were critical.

21 Fourthly, unlike in many of the authorities to which this Court was referred, the comments complained of occurred on a single occasion. They comprised a few sentences in the course of an address that took almost two hours and 74 pages of transcript. The jury had not been told that the appellant's legal team's conduct was improper before those remarks were made and that conduct was not referred to again until his Honour's gave his direction. The parties agreed to this course and took no exception as to the form of the direction.

22 Fifthly, in addition to any ameliorative effect that a direction from the trial judge offered, the appellant had an opportunity, if she wanted, to respond to the comments. Following discussion between counsel and the trial judge it was agreed that the appellant would make her address, knowing the substance of the direction the judge intended to give, but that any direction would not be given until after the address. The appellant chose not to respond to the false issue in her address, including in the knowledge of what his Honour would say in the charge.

23 Sixthly, and this point is especially significant, to set aside the verdicts would bring Scholastic Cleaning back into the litigation, despite its having been released from the proceeding by virtue of the verdict in its favour. This would greatly prejudice the first respondent in circumstances where it was not responsible for the prejudicial comments, nor the appellant's conduct that gave rise to them. It was the appellant's forensic decisions that caused the problem. Unlike cases such as Baulch, or Brotherhood, this is not simply a dispute between two opposing parties as to where the interests of justice lie. Here, there is another party who stands to be disadvantaged in a way that cannot be compensated by an ordinary order for costs.

24 In argument before us the response to these matters was to say the vice of what occurred in senior counsel for the school raising the matters as to the lawyer's conduct was the creation of a serious, prejudicial imputation against the appellant's agents. It was submitted the effect of the matters put to the jury was that the appellant was so unreliable her lawyers sought to suborn Mr Dohrmann to change his evidence and to deceive the jury. This difficulty was 'poisonous' to the appellant's case, it was submitted. Further, the comments of the school's counsel to the jury were inflammatory and properly found in cross-examination (not addresses).

25 These submissions overlook the fact the appellant made forensic decisions in the course of the trial:

1. to contact Mr Dohrmann while the appellant was being cross-examined and have him alter language in his report;

2. to not comply with the Order 44 obligation;[14]

3. to not seek leave to amend the Order 44 report of Mr Dohrmann;

4. to leave matters such that the true course of events tumbled out during Mr Dohrmann's cross-examination in a way that aroused suspicion given that the appellant's history of events was under scrutiny;

6. to not re-examine Mr Dohrmann on the topic; and

7. to not seek to recall the appellant (her case not having closed at that point).

26 In assessing whether the trial judge's refusal to discharge the jury would be inimical to the interests of justice, the conduct of the appellant in running her case must also be considered. There is no doubt that it was the series of forensic decisions made by the appellant's legal team, described by counsel for the school on appeal as a 'high risk strategy', that prompted the remarks of senior counsel for the school. These forensic decisions involved, at least, a failure to comply with the Rules in relation to expert evidence,[15] and understandably provoked counsel for the respondents. The school's counsel was in the unenviable position of having to protect his client's position in the context of highly questionable and potentially inappropriate conduct by the appellant's counsel.

27 It is no answer to say that Mr Dohrmann was mixed-up, in other words, his evidence was peripheral or inconsequential. The fact remains Mr Dohrmann's evidence and the way it was elicited gave rise to the very problem of which the appellant now complains. It was necessary for the respondents to take action. The respondents had no notice of what had occurred with Mr Dohrmann's report. On one view, overruled questions put to Mr Dohrmann in chief as to the evidence actually given by the appellant was a ploy to overcome the problems with Mr Dohrmann's report. Furthermore, the respondents' counsel faced the difficulty that Mr Dohrmann has authored a third report which was backdated, produced after the appellant's evidence and given in the same form as the first two reports, as if the appellant had instructed him.

28 It is relevant to consider the differences between the third report of Mr Dohrmann and his previous report:

1. the sequence of days was different, namely the event occurred on day one not day two;

3. vandalism was said to have occurred in the week before the accident;

4. the appellant was said to have reported the accident to 'Russell' but not 'Mark';

5. a reference to a note on the door was deleted from the report;

6. four paragraphs were completely deleted from the third report;[16] and

7. paragraph 4.24 of the third report conflicted with the earlier reports which Mr Dohrmann explained as a 'typo'.

29 The third report of Mr Dohrmann, revealed in cross-examination whilst he was presenting an opinion supposedly on the instructions of the appellant was, however, on Mr Dohrmann's evidence altered at the behest of the appellant's counsel. Indeed Mr Dohrmann was instructed as to how to alter the report in a yellow note. Furthermore, Mr Dohrmann signed the third report as being true and correct. In addition, at certain points in the trial there was reference to all reports having been exchanged yet the appellant's counsel was silent as to the existence or possible preparation of the third report. To continue, the appellant's counsel knew when the appellant was being cross-examined by the respondents that it was done on the basis of the single report of 9 April 2005. Furthermore, the respondents received different versions of the 9 April report which differed in their use of the word 'not' in relation to whether the appellant had reported previous incidents of vandalism.

30 When all these matters were combined they had a cumulative impact. It is, therefore, unsurprising that senior counsel for the school took the course he did. On the face of things there was a strategy to cover up the circumstances of the drafting of the third report. There seems to have been a forensic decision to preserve consistency with the appellant's evidence. It remains that at any time the third report could have been produced and given to the respondents and the jury. Instead a different path was chosen.

31 I agree with the trial judge that the involvement of the appellant's legal team in the preparation of the third report is not an issue that is entirely extraneous to the jury's task. In my view, the jury is entitled to consider the reasons for and circumstances surrounding the procurement of the third report, though they must restrict themselves to the evidence properly before them.[17]

32 Notwithstanding these factors the 'false issue' raised by senior counsel for the school was a serious one. Whilst it is common for opposing counsel to attack the forensic choices made during the course of the trial, the false issue raised goes beyond this. The implication was that Mr Dohrmann was instructed to alter his report so as to change many of the 'assumed facts' which it was understood had been directly provided to him by the appellant in order to achieve an appearance of consistency with the evidence that the appellant gave at trial. There was not a sufficient basis for the specific comments complained of, namely the allegation that there was an attempt to deceive and mislead the jury. To so allege was inappropriate and unfair.

33 Whilst the potential for prejudice existed, I do not consider that in all the circumstances the potential for prejudice was realised. The trial judge was best placed to assess whether the jury had been distracted from their proper task and whether the possibility of a fair trial had been compromised. His Honour found that this had not occurred. This Court should be appropriately cautious in overturning a decision of a trial judge.

34 A further point arises of substantial significance. A determination by this Court that the jury should have been discharged in all likelihood would involve setting aside the verdict and remitting the matter for rehearing. Given a subsequent investigation into the appellant's failure to comply with the Rules in relation to expert evidence it may be difficult to remit the matter to the same trial judge for rehearing. Therefore, any remitter may be before a new judge, which will entail significant delay and wasted costs. Whilst the provisions of the Civil Procedure Act 2010 ('CPA') are not expressly addressed to civil jury trials, there is no doubt the CPA demands that courts place a greater emphasis on ensuring the timely and efficient disposition of matters as part of ensuring the just determination of a civil proceeding.

35 The CPA obliges this Court to give effect to its overarching purpose, which is 'to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.'[18] Recently this Court discussed the effect of the CPA in Yara Australia Pty Ltd & Ors v Oswal.[19] The Court (Redlich and Priest JJA and Macaulay AJA) noted that the CPA had significantly changed the traditional obligations that practitioners and the Court had in relation to civil litigation, observing:

Sackville J, writing extra-judicially, referred to the misconception that specific legislative intervention is unnecessary, since the rules or the inherent powers of the court confer ample authority on the judges to manage litigation in a manner that minimises delays and ensures that costs are proportionate to the matters in dispute, concluding that such a view underestimates the significance of legislation. The Act creates obligations which extend beyond those in the Rules and confers upon the courts a panoply of powers not found in the Rules.

The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.[20]

36 The application of the principles governing civil juries in cases such as Baulch and Rees v Bailey Aluminium[21] are now qualified by the overarching obligations imposed on parties and the Court under the CPA. These obligations must be factored into the weighing up of how and where the interests of justice lie, including in civil jury matters. Here, the steps taken and the forensic decisions made by the appellant through her counsel played a significant role in the present dispute. Whilst these things are not clear cut, in the overall assessment of the interests of justice, the forensic decisions of the appellant are a factor that must be considered. In my view it is a factor in this case that supports the trial judge's decision not to discharge the jury and instead to charge as his Honour did.

37 In the circumstances, I am not satisfied that it has been plainly demonstrated that the trial judge's discretion miscarried and that to allow the decision to stand would be inimical to the interest of justice.[22] In my view, it was appropriate for the judge to direct the jury as his Honour did and for the trial to continue.

39 This ground may be disposed of shortly. The trial judge was in the best position to observe what was happening in the trial. The proximity of the judge to the Bar table and the jury box enabled his Honour to be in the paramount position. It is evident that his Honour was observing the jury closely. I would dismiss this ground.

1. There were relevant facts about which there was no dispute: that she had slipped; that the cleaning up method was inappropriate; that she was injured; that she was told to clean it up as best she could.

2. There was uncontroverted contemporaneous evidence in support of the appellant's evidence: what the appellant noted herself; her consistent statements in the completion of workers compensation claim forms three weeks after the event; the statement of Ms Harris; and the appellant's statement to the insurance investigator.

3. It was never put that the appellant or Ms Harris told lies or were mistaken.

41 On these bases, the appellant argued she should succeed on ground 5. However, despite the attractive simplicity of the appellant's submissions the fact remains that central to the determination of the appellant's claim was the assessment of the consistency of her recounting of events, especially against the school. The school's key witness denied that the appellant had reported an earlier problem. Thus the account given by the appellant and the account of Mr Dohrmann based on assumed facts derived from the appellant were critical. The appellant spoke to Mr Dohrmann herself. He said she gave a straight forward account. It was the school's case that Mr Dohrmann's expert assessment was only as good as the instructions it was based upon.[23]

42 The credibility of the appellant as a historian is plainly central. For this reason she was cross-examined on her account.

43 Thus, on this basis, there were disputes between the parties. As the school put it in argument to us, the appellant went to the jury on a particular basis, central to which was her credit.

44 The appellant's case was that she was a site supervisor who came across a unique situation. She rang her supervisor, Ms Harris, and was told 'do the best you can' and on that basis she said she proceeded. Yet her case turned on when the call

was made to Ms Harris. There was evidence contradicting the appellant that the call was made after her cleaning up attempt.[24] The appellant said in evidence that she called after the cleaning. Hence, the answer on the verdict as to negligence was open. Relevantly the jury requested to see the witnesses' contemporaneous statements which is an indicator that they were interested in the point. On the evidence it was open to the jury to conclude that the call was made to Ms Harris after the event. On that basis alone I would reject the ground.

45 As for the appellant's submission that key matters were not in dispute this is not supported in the way the case ran. With respect to the appellant's injury, there was a dispute as to the extent of her injury, the impact or relevance of her earlier injuries and the procedures that had been adopted. With respect to the cause of the injuries and the circumstances surrounding them, there were significant issues between the parties as to what the appellant was actually doing at the time she sustained her injury such as whether she was mopping or hosing. This was raised directly with the appellant. There was also a deal of evidence as to the correct way to clean up the detergent, particularly that of Mr Schadel. This was compounded by inconsistencies in how the appellant actually conducted the cleaning activity.

46 Against these circumstances ground 5 is not made out.

48 I have had the benefit of reading, in draft form, the reasons of the Chief Justice and of Whelan JA.

49 I agree, for the reasons given by Whelan JA, that the appeal should be allowed

on grounds 1 to 3. As his Honour observes, the final address made to the jury by senior counsel for the school included an allegation that Mrs Hudspeth's legal team had attempted to persuade Mr Dohrmann to alter his record of the version of events Mrs Hudspeth had narrated to him at the school in February 2010, and to do so for the purpose of representing Mrs Hudspeth as a reliable witness who had consistently presented the same story, when she had not been consistent. The allegation was tantamount to a claim that Mrs Hudspeth's legal team had attempted to influence the integrity of the evidence to be given by Mr Dohrmann as to what Mrs Hudspeth had said to him. This not only cast aspersions on the legal team, it created significant prejudice to Mrs Hudspeth because, as Whelan JA explains, it suggested that her legal team was prepared to engage in seriously wrongful conduct for the purpose of rescuing her otherwise damaged credibility. As the trial judge recognised, there was a risk that the jury might infer that Mrs Hudspeth was partly involved in, or responsible for, the attempt by her legal team to mislead the jury. The prejudice to Mrs Hudspeth was significant and, in my view, could not be overcome by a direction that the jury disregard the allegation that Mrs Hudspeth's legal team had been deceptive or sought to mislead the court.

50 I agree with Whelan JA that there was a need for the direction to state squarely that senior counsel for the school was incorrect. The direction should have stated that the allegation was unjustified. The direction given by the trial judge did not do this. In my view, the verdicts that were arrived at, in favour of Scholastic Cleaning, and the school, are both vitiated by reason that they were arrived at by a jury who had been told, wrongly and unfairly, that Mrs Hudspeth's legal team had attempted to deceive them about the account Mrs Hudspeth had given to Mr Dohrmann so as to make it appear that what she had said to him at the school was consistent with her evidence at trial and thus advance her case.

51 It is unnecessary to consider whether any direction would have been capable of overcoming the degree of prejudice Mrs Hudspeth suffered.

52 The trial judge was rightly conscious of the time and expense already incurred by the trial and did not wish to see that time and expense wasted, or Mrs Hudspeth's claim not resolved expeditiously in the course of that trial. Nevertheless, I consider that the proper course is now for the appeal to be allowed on grounds 1 to 3 and the jury verdicts to be set aside. It is regrettable that there may be a need for a new trial. Alternatively, the matter might be remitted to the trial judge for him alone to determine the liability of Scholastic Cleaning and the school, on the evidence already adduced at trial. The parties should be given a full opportunity to make submissions on the disposition of the appeal.

53 I also agree that ground 4 is without substance.

54 Given that the claim of negligence brought by Mrs Hudspeth will need to be ventilated again, either before the trial judge alone, or perhaps before a new judge and jury, it is unnecessary and would be inadvisable for the merits of Ground 5 to be explored in detail by this Court.

55 On the fifteenth day of the trial of this proceeding senior counsel for the second defendant began his final address to the jury. The plaintiff was claiming damages for personal injuries allegedly suffered in the course of her employment while working as a cleaner at a suburban school. At the commencement of the trial there had been three defendants, by final addresses there were only two. All parties in the trial were represented by senior counsel. They were not the senior counsel who appeared on this appeal.

56 In his final address to the jury senior counsel for the second defendant detailed what he said were inconsistencies between the evidence which the plaintiff had given in the trial and an account of the relevant circumstances which it was submitted the plaintiff had given to a particular expert, an engineer named Mark Dohrmann. There was nothing remarkable about an address in those terms in litigation of this kind.

58 After referring to the inconsistencies which he maintained existed between the account given by the plaintiff and the 'Assumed facts' as set out by the expert, he said:

This was recognised during the course of the trial by the legal team acting for the plaintiff and led to Mr Dohrmann being instructed to alter his report and to change many of the assumed facts so that an appearance of consistency would be provided to you. If that had happened, then you would have been misled. The plaintiff's legal team and Mr Dohrmann, however, didn't get away with it. Their attempt at deception to you about the assumed facts was exposed.

In this case the plaintiff's legal team imposed on Mr Dohrmann to abandon his duty to the Court for the purpose of obtaining a forensic advantage for the plaintiff, namely, to present her as a reliable witness when indeed the opposite was true. Mr Dohrmann, acting in accordance with the rules of conduct, should have resisted that pressure and refused to alter his report because he would have honestly believed that he had set out her version of events as she narrated them to him out at the [school]. But no, you know, he prepared a third report meekly complying [with] the request of the plaintiff's legal team.

60 These statements prompted an application on behalf of the plaintiff for the discharge of the jury. The trial judge ruled against that application observing that counsel 'mostly had a solid foundation for his comments to the jury'. The judge went on to determine, however, that what counsel had said had raised a 'false issue' as to the conduct of the plaintiff's legal team, and that he would give a direction to the jury that they should ignore that aspect of counsel's address.

61 Nine days later the jury returned a verdict. It found that there was no negligence, no breach of statutory duty and no breach of occupier's duty by either of the two defendants.

62 The plaintiff now appeals on five grounds. The first three grounds concern what senior counsel for the second defendant had said to the jury and the refusal of the application to discharge the jury. The fourth ground concerns a matter involving the second defendant's instructing solicitor which arose during the judge's charge. The final ground of appeal is that the jury's verdict that there was no negligence on the part of the first defendant was 'perverse or not open on the evidence'.

63 In order to deal with the three grounds concerning counsel's address, and the ground concerning the finding of no negligence in relation to the first defendant, it is necessary to review certain aspects of the trial in some detail.

64 On the appeal we were told the trial judge had undertaken an enquiry as to the conduct of the relevant parties in the trial. We have not done that. This appeal was argued, and is to be decided, on the basis of what occurred during the trial as revealed by the transcript and the documents tendered or marked for identification.

65 The plaintiff, Ms Hudspeth, was aged 56 when the trial was opened. She was born and grew up in the United States of America. She married and had a family there, and worked there as a teacher's aide. Whilst in the USA she suffered a serious back injury which resulted in her having surgery on her back in 1997 and in 1998. She came to Australia in about the year 2000.

66 In about August 2002 she began working as a cleaner for a company named Scholastic Cleaning and Consultancy Services Pty Ltd, the first defendant in the action and the first respondent on the appeal ('Scholastic Cleaning'). Scholastic Cleaning had the contract to clean a school, named St John's Regional College, owned by the Roman Catholic Trust Corporation for the Archdiocese of Melbourne, the second defendant and the second respondent to the appeal ('the school').

67 In November 2002 the plaintiff was appointed to the position of supervisor at the school. Thereafter, the cleaners at the school reported to her. She in turn reported to her supervisor, an employee of Scholastic Cleaning named Frances Harris.

68 The plaintiff's claim against Scholastic Cleaning and the school concerned an injury which she allegedly suffered on 27 April 2005 whilst cleaning liquid soap which had been spread onto the floor of one of the male students' toilet blocks. The liquid soap had come from one or more of a number of soap dispensers that were attached to the wall in that toilet block.

69 When the trial was opened, the supplier and installer of those soap dispensers was the third defendant. The claims against that defendant were resolved during the course of the trial and there was no verdict of the jury concerning those claims.

70 The plaintiff's case, as it was opened to the jury, was that the plaintiff went into the boys' toilet on 27 April 2005 to be confronted by 'an enormous mess' as a result of liquid soap from the dispensers being spread 'everywhere'. According to the plaintiff's counsel, she firstly reported this situation to the school, and in particular to the school's assistant business manager, a person referred to as 'Russell'. It was said that 'Russell' was shown what had happened but that his only response was to shrug his shoulders, and the plaintiff told him that she would do the best she could. The plaintiff's counsel told the jury that she then rang her Scholastic Cleaning supervisor, Ms Harris. After the situation was described to Ms Harris, the jury was told that she had told the plaintiff:

Do the best you can, I will be down there later.

71 The jury was told that the plaintiff did then begin to 'do the best she could'. She found a heavy mop and she attempted to clean up the floor using that mop.

72 The plaintiff's case was that this was an entirely unsatisfactory method of cleaning the floor, that it was dangerous as it would inevitably create a situation where the plaintiff was working on a slippery surface, that that is what happened, that she slipped when stepping onto the urinal step to rinse the mop under a tap, and that she suffered injury to her back as a result. In describing the case put against Scholastic Cleaning, repeated emphasis was put on what was said to be Ms Harris' instruction to 'do the best you can'.

73 The case put against the school, as opened to the jury, was that the school had a duty to prevent acts of vandalism, that upon being shown the mess 'Russell' as the representative of the school ought to have made an assessment as to how it should be dealt with, that cakes of soap rather than liquid soap could have been used so as to prevent this situation arising, and that the soap dispensers should have been secured in such a way as the students would not have been able to remove their contents and spill them on the floor.

74 The plaintiff in her evidence described what she said had happened on 27 April 2005 in terms consistent with the way in which the case had been opened. She referred to previous vandalism at the school, particularly citing an incident where a door had been removed, and then described what occurred on Wednesday 27 April 2005. She said she found the mess and reported it to 'Russell' from the school. She said she also contacted her Scholastic Cleaning supervisor, Ms Harris, and was told to do the best she could. Amongst other things, in her evidence the plaintiff said that a similar soap incident also happened on the following day, Thursday 28 April 2005. On that occasion she did not attempt to clean the soap but rather locked up and put an 'out of order' sign on the entrance. She said that the next day, the Friday, she found the toilets open and the out of order sign gone. This second soap spill was, she said, cleaned up by using a water hose to spray the liquid soap down a drain.

75 The plaintiff's evidence was that she suffered the injury on Wednesday 27 April 2005, the first occasion upon which she had found liquid soap on the floor. The description which the plaintiff gave of how she suffered the injury was as follows:

As I said, there was a huge puddle of this stuff and I was just trying to get some of it up and pick it up. The floor was really wet and the soap was all over it because it was draining out of the mop as I was putting it into the urinal, turned the tap on and it just kept lathering and I went to step up on the urinal step itself and when I did that, it just happened so fast. I just kind of tried to plant the mop, tried to brace myself and I kind of - I can't tell you exactly. I went backwards and I twisted. Part of me was still facing - the bottom half of me I think was facing this way and I twisted back this way to keep from hitting the floor.

I felt a sharp pain kind of running beside my back along my hip. I just thought I had pulled a muscle, the way I twisted.

76 The plaintiff said she made an entry in relation to what happened with the mess on the toilet block floor in a book referred to as the 'Red Book'. There was uncertainty in her evidence as to whether she had made the entry on the 27th of April or the 28th of April. The plaintiff also said that she reported the fact she had hurt herself to Ms Harris when Ms Harris attended the school later on the evening of Wednesday 27 April.

77 When cross-examined by counsel for Scholastic Cleaning a good deal of attention was paid to the suggestion that prior to commencing the cleaning she had contacted Ms Harris. In that connection passages from a statement which the plaintiff had made dated 7 June 2005 were put to her. In substance, the plaintiff's evidence that she had rung Ms Harris and been told to do the best she could before she commenced the cleaning was challenged. Further, it was put to the plaintiff that the 'do the best you can' was her recollection of a general directive and not something specific to this incident. It was put to the plaintiff that the 7 June 2005 statement read as if she had not called Frances Harris until after she had cleaned the floor and after she had, as she then thought, pulled a muscle in her back. The plaintiff agreed that that is the way the statement which she had made on 7 June 2005 read, but she said that 'I believe I called her'. I interpret that as meaning that she believed she had also called her earlier.

78 The plaintiff was also asked about the entry which she had made in the Red Book. Part of that entry, which was read to her, reads as follows:

... ask Pamela to make an out of order sign and I will hose it down again tomorrow.

It was put to her that her main function in cleaning the mess had been hosing it down. She denied that. The hosing reference was potentially significant. As the evidence progressed it became clear that it was accepted by all parties that that was the correct way to deal with the situation.

79 I interpolate at this point that, with one possible exception, the sequence of events set out in the statement of 7 June 2005, and in particular specification of the day on which the accident occurred, was consistent with the plaintiff's evidence-in-chief. The possible exception is the timing of the phone call to Ms Harris.

80 When cross-examined by counsel for the school the first thing the plaintiff was asked was whether she had always given a consistent account of what had happened in relation to the relevant toilet block on the Wednesday, the Thursday and the Friday, and she said that she had. She then agreed with the suggestion put to her that the occasion on which she said she suffered injury was the first time that she had encountered liquid soap on the floor in this manner and that it was a 'unique' event.

81 The plaintiff was then taken in detail to an account of the circumstances which occurred over those three days as set out in a report by the engineer, Mr Dohrmann, who had been engaged by the plaintiff's solicitors and who had interviewed the plaintiff at the location of the incident in February 2010.

82 It quickly became clear that there were significant differences between the account of events over those three days as set out by Mr Dohrmann in the report by him which had been served on the school under Order 44, and the account given by the plaintiff in her evidence. The most obvious inconsistency was that according to the Dohrmann report, soap was discovered on the floor on what might be termed 'day one'; and the attempt to clean it, in the course of which the injury occurred, took place on the following day.

83 The plaintiff agreed in cross-examination that she had seen Mr Dohrmann at the school in February 2010 and had given him an account of what had occurred. She maintained that the account being put to her as emanating from him was wrong. The sequence of events was wrong, and the employee of the school to whom the matter was said to have been initially reported was also wrong. Mr Dohrmann recorded it as being to an employee named 'Mark' rather than 'Russell'.

84 The plaintiff was also cross-examined about the entry in the Red Book and in particular about the absence of any reference in the Red Book entry to having suffered any injury or to having slipped at all.

85 In the course of cross-examination by counsel on behalf of the school the plaintiff was challenged as to whether she did slip at all, and in that context was asked to describe exactly what had happened. On one view, she had difficulty doing so and eventually concluded:

I felt like I slipped. In my mind today, I felt like I slipped.

86 The plaintiff gave her evidence-in-chief on Wednesday 14 November 2012 and was cross-examined on that day and on the following day, Thursday 15 November 2012. On Friday 16 November 2012 there was an issue with one of the jurors and the trial could not proceed. The plaintiff's re-examination was on Monday 19 November 2012. Amongst other things, the plaintiff reiterated in her re-examination that Ms Harris had told her to do the best she could. She said that on the second occasion when cleaning of soap spillage occurred (according to the plaintiff, on the Friday) a water hose had been used.

87 It is necessary to interrupt the trial sequence at this point to set out the evidence that was later given about events which occurred on Thursday 15 November 2012. This later evidence about what happened on 15 November, while the plaintiff was still giving evidence, was given by Mr Dohrmann during his cross-examination by counsel for the school.

88 Substantially adopting the relevant aspects of counsel for the plaintiff's submissions on this appeal, what occurred was:

• Mr Dohrmann spoke with senior counsel for the plaintiff on 15 November 2012 or earlier and was told that Mr Dohrmann had the facts wrong.

• Mr Dohrmann received by fax the plaintiff's statement dated 7 June 2005. The fax was sent to him by senior counsel for the plaintiff at approximately 2 pm on 15 November 2012.

• Mr Dohrmann was instructed by senior counsel for the plaintiff that he should take the fax as the plaintiff's instructions.

• Senior counsel for the plaintiff asked Mr Dohrmann for an amended report based on the information in the statement.

• Mr Dohrmann prepared an amended report based on the statement.

• Senior counsel for the plaintiff made suggestions as to the factual changes and deletions which would need to be made in a telephone conversation with a member of Mr Dohrmann's staff and these suggested changes and deletions were recorded on a 'yellow slip' which was placed on Mr Dohrmann's file.

• Mr Dohrmann wrote a further report, which was dated 12 November 2012, which was based on the altered factual assumptions.

• Mr Dohrmann signed the new report and sent it to senior counsel for the plaintiff.[25]

89 On Monday 19 November 2012, the plaintiff's evidence concluded, and the plaintiff's counsel began to call the medical evidence. Doctors gave evidence over the course of Monday 19 November and Tuesday 20 November 2012, and there was further medical evidence called later in the trial.

90 On Wednesday 21 November 2012 argument took place in the absence of the jury concerning Mr Dohrmann. Before continuing with the sequence of the trial it is necessary to turn now to the reports of Mr Dohrmann as they existed on Wednesday 21 November 2012.

Reports of Mr Dohrmann as at Wednesday 21 November 2012

91 From the material before us, as at Wednesday 21 November 2012 the following reports of Mr Dohrmann were in existence:

• A report dated 9 April 2010, later marked for identification as 'Exhibit D1H', which had been served on Scholastic Cleaning under Order 44.

• A second version of the report dated 9 April 2010, which had been served on the school under Order 44.

• A revised report dated 12 November 2012 prepared consequent upon the dealings with senior counsel for the plaintiff on 15 November 2012 and which had been sent to senior counsel for the plaintiff. A copy of that report was in Mr Dohrmann's file. That file was later marked for identification as 'Exhibit D1I'.

• A supplementary statement dated 19 November 2012, which had been served on the defendants on the afternoon of Tuesday 20 November 2012. This statement was the subject of submissions before the judge on Wednesday 21 November 2012.[26]

92 Both versions of the report dated 9 April 2010 contained the following under the heading 'Documents and material':

your letter of instructions, dated 11 February 2010;
Court documents, including the Amended Statement of Claim, with attached Affidavit of Linda Hudspeth (sworn 11 December 2008);
Medical reports prepared on behalf of the Plaintiff and Defendant, as itemised in your letter to me of 11 February 2010;
Scholastic Cleaning & Consultancy Services Pty Ltd 'Cleaners' Induction and Training Guide' (42 pages - Revision: 0).

3.2 I interviewed Ms Hudspeth at Dandenong on 15 February 2010. She gave a straightforward account of the relevant circumstances.

93 Both versions of the 9 April 2010 report then set out a number of factual matters under the heading 'Assumed facts'. Both versions make a mistake in relation to dates. 27 April 2005 is referred to as being a Thursday whereas in fact it was a Wednesday.

94 Of greater significance is the sequence of events which is set out under the heading 'Assumed facts'. According to that sequence, the day before the day upon which the injury was suffered Ms Hudspeth had found liquid soap on the floor. Paragraph 4.8 of both versions of the report contains the following passage:

She observed that one of several soap dispensers had apparently been torn off the wall above the wash basin, and that its contents (liquid soap) had been spilt on the tiled floor. Her instructions to me at the view were that the missing soap dispenser was the one located first at the northern end, or on the left as one faces the trough.

95 The sequence of events set out under the heading 'Assumed facts' then went on to relate that in response to this discovery she locked up the toilet, reported the matter to 'the school business manager, named Mark', placed a note on the door, 'reported this matter to the assistant business manager (named Russell)' and recorded the observation in the 'Red Book'.

96 The account given as 'Assumed facts' then moved to the following day, incorrectly described as Thursday 27 April 2005, when Ms Hudspeth is said to have returned to the same toilet block to find the door open, the note missing, 'and the spilt liquid soap still all over the floor'. It is said that she also observed that 'a second soap container had now disappeared from the wall' ... 'and that there was more liquid soap spilt about the tiled floor than had been on the day before'.

97 The account thus far set out is inconsistent with the plaintiff's evidence. The plaintiff had been cross-examined on these aspects of Mr Dohrmann's report, an implicit assumption being made that Mr Dohrmann was repeating things she had told him. On the appeal senior counsel for the plaintiff queried that implicit assumption. I have reviewed the documents to which Mr Dohrmann referred in his report. It was certainly open to proceed on the basis that the source was Ms Hudspeth, and that she had either given Mr Dohrmann a different account when she met him in February 2010, or Mr Dohrmann had misunderstood the account of the circumstances which she gave him.

98 The account of the incident itself, and of the call to Ms Harris said to have been made before the incident, as set out as 'Assumed facts', was broadly consistent with the plaintiff's evidence until the last paragraph of the 'Assumed facts'. It is in relation to this last paragraph that the two versions of the report dated 9 April 2010 differ.

99 The report which was served on Scholastic Cleaning read in the last paragraph:

4.24 Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed.

The report served on the school read in the last paragraph:

4.24 Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.

The potential significance of that divergence is obvious.

100 The report dated 12 November 2012, but which must have been drafted on or very shortly after 15 November 2012, significantly alters the account of events set out under the heading 'Assumed facts' so as to bring the sequence into conformity with the evidence the plaintiff had given in the trial. What was said to have been the discovery of the liquid soap the day before the accident occurred was removed, as were other inconsistencies, such as the mess being reported to 'Mark' rather than to 'Russell'. The final sub-paragraph of the Assumed facts in this report reproduced the version of the 9 April 2010 report which had been served on the school. It read:

4.24 Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.

101 That paragraph was not consistent with the evidence the plaintiff had given in the trial. She had said the soap incident was 'unique'. Mr Dohrmann subsequently gave evidence that the version of the 9 April 2010 with that paragraph (referred to as 'the one without the not') was in fact a draft and that the correct final version was the one which had been served on Scholastic Cleaning, which said in paragraph 4.24 that Ms Hudspeth had not seen previous evidence of vandalism on the soap dispensers. It seems that in preparing the amended report dated 12 November 2012 but drafted on or about 15 November 2012, Mr Dohrmann amended the version which he later maintained was the incorrect one.

102 Significantly, the report dated 12 November 2012 did not alter what appeared under the heading 'Documents and material'. No reference was made to the dealings with senior counsel for the plaintiff or to the statement of 7 June 2005. Thus, if the report were read in isolation it was open to be interpreted, in relevant respects, as an account of what Mr Dohrmann had been told by the plaintiff in February 2010. In that respect the report, on its face, was misleading.

Submissions concerning Mr Dohrmann on Wednesday 21 November 2012

103 On Wednesday 21 November 2012 counsel on behalf of Scholastic Cleaning objected to reliance upon what was described as a 'supplementary statement' of Mr Dohrmann dated 19 November 2012. It seems from the transcript that that statement was confined to addressing certain issues under relevant regulations. The objection related to the late service of the statement and to what was said to be an inconsistency between reliance upon that statement and a ruling which the judge had previously made in relation to another expert, Dr Cubitt.

104 In the discussion that followed, counsel for the defendants quickly diverged into complaints in relation to Mr Dohrmann's 9 April 2010 report (it not being appreciated at that point that there were two versions of it), referred to as the 'primary report'. The defendants submitted that the factual assumptions set out in Mr Dohrmann's primary report would never be established because of inconsistency with the evidence that had been given by the plaintiff. In particular, it was pointed out that the sequence of events was different. Counsel for the school also specifically referred to paragraph 4.24 in the version of the report that he held which said that Ms Hudspeth had previously seen evidence of vandalism to the soap dispensers. Notwithstanding that specific reference, no-one refers to the fact that there were two versions of paragraph 4.24.

105 Counsel for the plaintiff defended reliance upon Mr Dohrmann's April 2010 report (speaking as if there was only one version - and there is nothing which suggests he knew there were two versions at that point). In relation to the specific point which had been raised about paragraph 4.24, counsel for the plaintiff relied upon evidence of vandalism not concerning soap dispensers as constituting a legitimate basis for Mr Dohrmann's opinions notwithstanding the plaintiff's evidence.

106 The judge ruled that he would not permit the plaintiff to rely on what he called the supplementary report of 19 November 2012, but that he would permit limited oral evidence on the matters dealt with in it.

107 The noteworthy feature of what occurred that morning is not so much the submissions made and the ruling given, but the fact that senior counsel for the plaintiff engaged in that interchange at a time when it must be assumed, on the material before us, that he held the report from Mr Dohrmann dated 12 November 2012. He did not reveal the existence of that report.

108 At this point it is necessary to say something about the parties' obligations in relation to expert reports under the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). Expert reports are required to state 'the facts, matters and assumptions on which the opinion is based'.[27] If an expert provides a supplementary report to a party then that party is required 'forthwith' to serve the supplementary report on the other parties.[28] If the supplementary report is not served then neither the earlier report nor the supplementary report can be used without the leave of the Court.[29] A party is not permitted to adduce evidence from an expert at the trial, other than in cross-examination, unless the substance of the evidence is contained within a report served under Order 44, save with the leave of the Court or consent of the parties affected.[30]

109 As at 21 November 2012, when submissions about the supplementary statement or report of Mr Dohrmann dated 19 November 2012 were made:

• A report dated 12 November 2012 was held by senior counsel for the plaintiff which did not comply with Order 44 because it did not set out the facts, matters and assumptions on which the opinion was based. On its face, it gave the misleading impression that the opinion was based upon specified written documents and an interview with the plaintiff in February 2010. In fact, the facts were based upon the statement of 7 June 2005 faxed to Mr Dohrmann by the plaintiff's senior counsel on 15 November 2012 and instructions by him to one of Mr Dohrmann's staff which were recorded on the 'yellow slip'.

• In contravention of the Rules, the supplementary report had not been served on the defendants.

• As the supplementary report had not been served, earlier reports should not have been used without the leave of the Court.

• The plaintiff's counsel could not lead evidence from the expert that was not in substance contained within the reports which had been served on the other parties without the consent of those parties or the leave of the Court.

110 Immediately after the submissions and the ruling concerning Mr Dohrmann on 21 November 2012, evidence was given by an engineer who specialised in fluid dynamics, named Dr Leonard Cubitt. His evidence was largely uncontroversial. He was not cross-examined by counsel on behalf of Scholastic Cleaning. Cross-examination by counsel on behalf of the school was limited. The one point which counsel on behalf of the school was concerned to emphasise was a passage in Dr Cubitt's report which read as follows:

Ms Hudspeth noted that soap had on previous occasions been spilled on the floor.

111 Dr Cubitt had referred to Ms Hudspeth's instruction to that effect in his evidence-in-chief and counsel for the school took him to it again in cross-examination. Dr Cubitt confirmed that that is what she had told him, and when told that in her evidence she had said that she had never encountered soap upon the floor before and that it had been a 'unique' experience for her, he agreed with the suggestion put to him that that was inconsistent with what he had been told.

112 Mr Dohrmann began his evidence-in-chief at midday on Wednesday 21 November 2012. After a few preliminary matters, Mr Dohrmann was taken to his 'report dated April 2010'. The history which he had set out under the heading 'Assumed facts' was read to him, and he adopted it, up to a point. The point at which counsel ceased reading the history to him and asking him to adopt it, was the point (paragraph 4.8) where the history he had set out diverged from the account which had been given by the plaintiff in her evidence. Rather than proceeding with the report, the plaintiff's counsel then said the following:

Can I ask you to assume the following evidence that we have heard in this case about the circumstances of her slip ...

113 Counsel for the plaintiff then read out a long section from the plaintiff's evidence-in-chief and concluded:

Having regard to that sequence of events I've put to you on the evidence, what do you say as to the satisfactoriness, first of all, of Scholastic, who employ her, in relation to the position she was put in.

114 At that point counsel for Scholastic Cleaning objected on the basis that what was being done was outside Order 44. Reference was made to 'ambush'.

115 Counsel for the school also objected, again on the basis that there was a departure from the report which had been served under Order 44.

116 The trial judge agreed with the objections which had been made and suggested to counsel for the plaintiff that the witness should continue with the 'Assumed facts' as they had been set out in his April 2010 report and that counsel could then 'explore his conclusions'.

117 Mr Dohrmann then read out the 'Assumed facts'. When he reached paragraph 4.24 the version which he read out was the one which said that Ms Hudspeth had not previously seen evidence of vandalism or missing soap dispensers. That seemed to take counsel for the plaintiff by surprise and he queried the presence of the word 'not'. Mr Dohrmann confirmed from his hand-written notes that what he was told was that there had been no prior observations of loose or torn soap dispensers.

118 Later in his evidence-in-chief there was an attempt to lead evidence from Mr Dohrmann about the type of soap dispenser that was used and other types which were available. Again, counsel for the defendants objected on the basis that this constituted a departure from the Order 44 statement. The initial objection was taken by counsel for the third defendant (who was still in the trial at that point).

119 In response to the objection, the trial judge turned to senior counsel for the plaintiff and said the following:

Isn't that so, [counsel]? The expert evidence has been exchanged between the parties, you all know what was coming and that's what this witness should give evidence about, rather than something that he's obtained, something fresh, new, out of a box, off the bar table today.

120 The plaintiff's counsel then responded to the objection and to the observations of the trial judge and there was an interchange between all counsel and the trial judge for about 15 minutes.

121 The particular objection did not concern anything which had been dealt with in the as yet unrevealed report dated 12 November 2012, but the question from the judge specifically directed to the exchange of expert reports, and the subsequent interchange, ought to have prompted some reference to its existence, if its disclosure had previously been overlooked. Just as the debate about the report dated 19 November 2012 should have prompted some reference to the report dated 12 November 2012, if its disclosure had previously been overlooked.

122 The trial judge did not permit Mr Dohrmann to give evidence outside the scope of the April 2010 report concerning the types of soap dispensers. At that point the luncheon adjournment intervened and immediately after lunch a medical witness was interposed. Late in the afternoon of Wednesday 21 November 2012 Mr Dohrmann resumed his evidence.

123 Senior counsel for the plaintiff again attempted to have Mr Dohrmann address the evidence the plaintiff had given and again objection was taken. Senior counsel for the plaintiff did not persist. Senior counsel for the plaintiff did not take up the judge's earlier suggestion that he explore Mr Dohrmann's conclusions.

124 Mr Dohrmann's cross-examination by counsel for Scholastic Cleaning began late that afternoon. Before the adjournment the fact that two different versions of the report dated 9 April 2010 had been served became clear for the first time in open court. At one point the difference was said by Mr Dohrmann to be a 'typographical error'. When asked which version was the correct one, Mr Dohrmann initially said that it was the version without the word 'not'. This version said that the plaintiff had told him there had been prior incidents of vandalism to the soap dispensers. By reference to his hand-written notes, however, Mr Dohrmann then said that the correct position was that he was told by her that she had not seen torn or loose soap dispensers previously but there had been vandalism in general.

125 It was in the course of this interchange that the existence of the report dated 12 November 2012 was revealed. Mr Dohrmann said that this report was 'written for my own purposes just to get the facts as right as I was directed to'.

126 The focus of cross-examination by counsel for Scholastic Cleaning throughout the rest of that afternoon was on the two versions of the April report and in particular the two versions of clause 4.24. Mr Dohrmann said that the one he 'signed off on' was the one which did contain 'not'; that is, the one that recorded Ms Hudspeth as saying she had not previously seen any evidence of vandalism or missing soap dispensers.

127 Mr Dohrmann was also asked about the sequence of events he had set out in his April 2010 report. He said that he had had a lot of trouble 'putting the order of events in' and that if there is an error 'it will be mine, not hers'.

128 The last thing that happened that afternoon was that Mr Dohrmann's entire file was marked for identification as 'Exhibit D1I'. Mr Dohrmann's report dated 12 November 2012 was in that file, as were copies of both versions of the April 2010 report. The first reference made in Court to the report dated 12 November 2012 was late in the afternoon of 21 November 2012, and it seems, on the material before us, that the first opportunity the defendants would have had to see that report was when Mr Dohrmann's file was produced and marked for identification.

129 Mr Dohrmann's cross-examination by counsel on behalf of Scholastic Cleaning continued the following morning. When questioned about the history he had set out in his April reports he said that he had had 'some difficulty in putting the chronology together when I was interviewing her, I did my best with it'.

130 He was told that the version of the April 2010 report which had been served on Scholastic Cleaning was the one which did have 'not' in it in paragraph 4.24 and he said that that was the one 'which stands'. He said the version without 'not' in it was 'in great likelihood' a draft before the final one which has been sent out incorrectly. He said that that was his responsibility.

131 He was then challenged on one of his conclusions. He had suggested in the April 2010 report which had been served on Scholastic Cleaning that both Scholastic Cleaning and the school could have taken steps to prevent exposing the plaintiff to the risk of injury 'by ensuring soap dispensers are fastened to the wall, that they were secured in a way that would resist attempts to tear them off the wall by vandals'. It was put to him that this was a rather extraordinary conclusion if in fact his instructions from Ms Hudspeth were that she had not seen previous evidence of vandalism to the soap dispensers. It was a point that was also taken up by the trial judge.

132 Counsel for Scholastic Cleaning also highlighted an observation Mr Dohrmann had made to the effect that injury could have been prevented had the plaintiff not been required to enter a slippery area 'until it was hosed out'. He was then taken to notes which he had made and which were contained in his file. There was a note which read 'Hosed out' and which, it was suggested, referred to what was described as 'day one'. By reference to that note, the following interchange occurred:

So your first observation about how she went about the task is that she tried to hose it out, is that it? - - - Yes. That's the note.

That was on day one? - - - Yes.

133 The cross-examination of Mr Dohrmann by senior counsel for the school began by him referring the witness to the expert witness code of conduct[31] and in particular to the clauses providing that the expert witness had an overriding duty to assist the Court impartially and not to act as an advocate.[32] He was then cross-examined about the divergent versions of clause 4.24 in the April 2010 reports. He agreed that the difference was 'pretty important'. He again confirmed that the version 'with the "not" in it' was the correct one. He was cross-examined about how the divergence had come about.

134 By reference to his file, Mr Dohrmann was then asked to read out the notes he had taken of his discussions with the plaintiff.

135 I interpolate at this point that upon my reading of that evidence his notes do indicate that an account was given to him by the plaintiff to the effect that there was an initial problem on one day (said in the notes to be the Wednesday), and then a further problem the next day (said in the notes to be the Thursday) which was when the injury was suffered. Further, the note in relation to what had occurred on the first day referred to both mopping and hosing. Suffice it to say, that there was certainly a basis in this evidence for a conclusion that the plaintiff had given him a different account in important respects from the account she had given in her evidence.

136 Mr Dohrmann was told that counsel for the school had cross-examined the plaintiff about his report on 15 November 2012. He agreed that he had had communication with the plaintiff's legal representatives in the afternoon of 15 November. He referred to a fax which appeared to have been sent to him at 2 pm that day and he added that senior counsel for the plaintiff 'had previously had a conversation with me'. He said that counsel had asked him whether he had received a statement from the plaintiff and told him that he was going to send it to him. Mr Dohrmann said that he considered what was occurring to be similar to the role that solicitors normally undertook where they checked that the facts were correct. Mr Dohrmann said that the plaintiff's senior counsel made 'a request that I reconsider those as the plaintiff's instruction about what happened and the order of events'. The reference to 'those' was a reference to the faxed statement. He said that the plaintiff's senior counsel had 'suggested that I might prepare an amended report which I did'.

137 He was then taken to the 'yellow piece of paper' in his file (which was not in his hand-writing). It referred to paragraph numbers in the report and catalogued changes to those paragraphs. The amended report reflected the changes on the yellow paper. At the end of the yellow paper there was a reference to senior counsel for the plaintiff and his phone number.

138 Mr Dohrmann also confirmed that the amended report included the erroneous version of paragraph 4.24 'unfortunately'.

139 Mr Dohrmann said that he sent the third report to the plaintiff's solicitors and that he copied it to senior counsel for the plaintiff at the same time. On the appeal we were told by counsel for the school that for the purposes of the appeal it was accepted that the report only went to senior counsel not to the solicitors.

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3

At a glance

Court

Decision date

Before

Source

Judgment (360 paragraphs)

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3 (6 February 2014)

Parties

Legislation Cited (2)

Cases Cited (4)