Decision
40 In my opinion, the primary judge's conclusion cannot be said to be glaringly improbable.
41 The primary judge was entitled to give substantial weight to the evidence of the plaintiff, denying deliberate pulling out of the boards and asserting a belief that there had been no inadvertent touching of the boards. The conclusion was supported by the evidence of the plaintiff's expert, to the effect that if the boards had been sufficiently close to the vertical, their fall could have been caused by brushing or bumping. The plaintiff's expert did not spell out exactly how this could have happened, and how it could have occurred without force being directly applied to the innermost board, as contended by Dr. Hill. However, the plaintiff's expert was not challenged on this opinion by objection to evidence or cross-examination, and it is conceivable that if the boards were sufficiently close to vertical their fall could have been precipitated by a bump, giving rise to some kind of rebound, possibly coupled with an adhesion or suction effect by outer boards on inner boards.
42 Further, the evidence relied on by Rawson Homes in relation to the angle of the boards and the handling of the boards was not conclusive. As regards the former, Mr. Frasca's evidence was only as to practice, and it was conceivable that something might have happened during the nine days the boards were there to alter the angle at which they were leaning. The measurements taken by Mr. Carolan were not supported by any evidence from him, and Mr. Swane did not support his bald assertion about measurements contained in his statement by any oral evidence clarifying exactly what was observed and what was done, so as to support the view that the marks against which measurements were made could be taken as a reliable indication of the previous position of the bottom of the boards.
43 The notes taken by ambulance officers were taken at a time when the plaintiff was in severe pain and under medication, and may have been influenced by contributions from Mr. Swane. The hospital and medical officer's notes could be consistent with the view that the handling and lifting being referred to was that which occurred after the boards began to fall and the plaintiff was struggling to hold them up.
44 Turning to the question of errors, I do not think the primary judge was in error in applying Jones v. Dunkel: the diary entry could be considered a self-serving document, and in my opinion carries much less weight in the absence of its maker being called to give evidence, as he could have been. In my opinion also, the plea of guilty could be relied on. Although the standard required by the relevant statutory provision is higher than the common law standard, the plea does amount to an informal admission of the elements of the offence, and indeed of the particulars of the offence as set out in the Statement of Agreed Facts. Particularly is this so when no attempt was made to give any explanation of the plea of guilty.
45 However, in my opinion the other two matters relied on by Mr. Campbell do indicate significant errors.
46 If there was a difference between the opinion of the experts which was of significance, the primary judge should have identified the difference and given reasons for preference of one expert over the other. However, had this been the only error I am inclined to the view that it would not have been sufficient of itself to vitiate the judgment.
47 In my opinion the other error is more serious and in fact fatal. The scenario of the plaintiff moving all seventeen boards back from the wall, with a view to holding them vertically, so that their weight was taken off the wall and would thereby not give a false reading as to the straightness of the studs, was a scenario relied on by Rawson Homes, and cannot be said to be absurd. If one took the measurements referred to in Mr. Carolan's diary as indicating the actual lean of the villaboard, and applied the resulting figures to the formula given by Dr. Hill, a force in the order of 20kgs would have been sufficient to move all seventeen boards from the wall, and of course as the boards approached a vertical position the force required to continue to move them towards that position would become progressively less. This calculation is based on the assumption that the total thickness of all the boards is about 102mm (17 x 6mm), and thus that the bottom of the lowest board was of the order of 128mm from the wall. The application of a force of 20kgs is something not unusual on a building site, and the adoption of this procedure, although it could be managed, does carry a significant risk because the application of the initial 20kgs would result in some momentum which could well carry the boards beyond the upright position where they could be easily maintained in equilibrium. This scenario is in my opinion strongly supported by the objective evidence on which Mr. Campbell relied; and although, as I have indicated above, that evidence is not conclusive, it does make the scenario extremely plausible.
48 Thus, although the primary judge would have been entitled to accept the plaintiff's account that he did not intentionally or accidentally touch the Villaboard, it was necessary for her to address correctly the relevant question. However, her judgment reveals that she accepted the plaintiff's account having already concluded that the plausible scenario actually relied upon by Rawson Homes had not been suggested by it, and was in any event absurd, which it was not. In my opinion, that error vitiated her Honour's acceptance of the plaintiff's account of the accident which underpinned her finding that Rawson Homes had breached its duty of care.
49 The question whether the plaintiff's evidence should nevertheless be accepted in the face of the material relied on by Rawson Homes is not one that can be resolved by this Court. Accordingly, subject to what I say below, there would have to be a new trial. This new trial, however, would be as to liability only.
50 The possible qualification is that the plaintiff did have a fall-back case, to the effect that even if Rawson Homes' scenario was accepted, there was still a breach of duty. This case would have some support from the plea of guilty, and is a case that this Court could possibly determine. The problem however is that this case would involve the likelihood of a finding of contributory negligence by the plaintiff; and that would mean that, even if negligence is found in the plaintiff's favour, the plaintiff would recover less than 100% of his damages; whereas if the matter goes back for re-trial, the plaintiff could get 100% damages if his scenario is accepted.