John Calderwood McLEAN v Andrew POWER & Anor

Judgment 1The plaintiff, John Calderwood McLean, has instituted proceedings in this court arising from an incident on 16 June 2003 when he fell on an escalator at the Star City Casino (as it was then known). He has done so without legal representation. The Casino is now known simply as "The Star" and is administered by The Star Pty Limited. The first defendant, Andrew Power, is employed by that company as its General Counsel. The second defendant is named as a firm of solicitors, Wotton & Kearney. Before me are motions by both defendants seeking the summary dismissal of the proceedings. To understand the proceedings it is necessary to sketch the background to them.

The District Court proceedings 2Mr McLean brought proceedings in the District Court against Star City Pty Ltd, the predecessor of the present company, to which I shall refer as "Star City", seeking damages for personal injury said to have been suffered as a result of his fall. In those proceedings he was legally represented. The matter was heard by Sidis DCJ over a period in April and May 2008, and her Honour gave judgment on 13 August of that year. Mr Power had been engaged as an in-house solicitor by Star City in October 2007 but, as will be seen, he played no part in the conduct of the District Court proceedings. Star City was represented by Wotton & Kearney, engaged by Star City's insurers, the solicitor on the record being Mr David Kearney. 3Judge Sidis rejected Mr McLean's claim and found a verdict for Star City: McLean v Star City Pty Ltd [2008] NSWDC 143. Put shortly, it was Mr McLean's case that he fell as a result of the escalator malfunctioning. His evidence was that as he was travelling up the escalator, the handrail stopped moving but the steps did not. As a result, he lost his balance and fell backwards. Her Honour found, on the whole of the evidence, that a gentleman ahead of him on the escalator had collapsed because of a medical condition, causing those behind him, including Mr McLean, to fall. She accepted that pressure placed on the handrail by that gentleman caused a momentary interruption to its operation, but found that that did not contribute to Mr McLean's fall. 4Mr McLean's claim, put briefly, was that his fall was the result of a malfunction caused by the failure of Star City to maintain the escalator adequately. Her Honour found that that claim was not made out, and concluded that the fall was not the result of any negligence on the part of Star City. I might add that, in any event, she also rejected his claim that the fall had caused him serious injury, finding that he had suffered only minor injuries which did not reach the 15% threshold for compensation for non-economic loss. 5Importantly for present purposes, there was in evidence a DVD which was a compilation from tapes recorded by security cameras directed at the escalator at the time of the incident. At the trial Mr McLean alleged that the composite footage had been "edited and fixed", so as to show an incident other than that in which he was involved. As will be seen, he maintains that allegation. The circumstances in which the DVD was produced were thoroughly examined in the evidence, and Mr McLean was cross-examined by reference to it. He acknowledged that he could be seen in the DVD, but only at a point after the incident. However, her Honour accepted that the DVD did relate to the relevant incident, noting that he could be seen on the escalator in "the crush of persons banked up" behind the gentleman who had collapsed: [27] of her judgment. 6Her Honour expressed concern about the use of a compilation of security camera footage rather than the production of the original footage. She also noted a complaint by Mr McLean that Star City had failed to produce on subpoena a report of the incident on the day itself by Mr McLean and his wife, who had been with him, to a Star City employee. She observed that these "deficiencies in the documentation and recording of evidence by the defendant were of concern": [26]. However, given her finding that Mr McLean could be seen on the DVD at the relevant time, she expressed herself to be "satisfied that the missing material would not assist the plaintiff and that the editing of the taped material did not cause him prejudice": also at [27]. She found that the DVD "was of little assistance in determining if the handrail stopped running as claimed by the plaintiff": [29]. 7In February 2010, Mr McLean sought leave to appeal out of time against her Honour's decision. The application was founded upon assertions that the DVD footage was "forged" and that Star City had withheld evidence. The latter complaint appears to have been a reference to the report of the incident which Mr McLean and his wife were said to have made on the day. On 6 May 2010, the application was refused by Tobias JA, with whom Macfarlan JJA agreed. Tobias JA noted that both complaints had been dealt with in her Honour's judgment. His Honour added that, given her findings as to the cause of Mr McLean's fall, the controversy about the DVD made no difference to the outcome: [7] of the judgment. His Honour also noted her findings concerning such injuries as were attributable to the fall: [19] ff. His Honour described Mr McLean's prospects of succeeding in an appeal as "remote": [32]. 8An application for special leave to appeal to the High Court was also refused: McLean v Star City Pty Ltd [2011] HCASL 45. In brief reasons delivered on 6 April 2011, French CJ and Crennan J saw "no reason to doubt the correctness" of the conclusion of the Court of Appeal, and found that an appeal to the High Court "would have no prospects of success." Mr McLean had made the applications to the Court of Appeal and to the High Court without legal representation. 9Mr McLean also complained to the Legal Services Commissioner concerning the conduct of Mr Power and Mr Kearney, alleging that both were complicit in the tender of forged CCTV footage in the District Court. The complaint was dismissed, Mr McLean being informed by the Commissioner in a letter of 11 February 2010 that there was "no evidence whatsoever of any wrongdoing on the part of" either solicitor.