Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244

Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244 - VSCA 2008 case summary — Zoe

[22]

DEFENCE COUNSEL: You were also a party to a conversation about the stop, is that right, on this day?---No.

Well was the stop and the guide, was that ever discussed?---No.

You're on your oath, you understand that?---Yes, that's right - - -

Yes?---That's why I'm telling the truth.

And that's why you say, do you, that you know that the way out for you and Mr Rees is to say, 'Well I don't know anything about the stop.'

PLAINTIFF'S COUNSEL: Your Honour - - -

DEFENCE COUNSEL: He's already answered the question.

HER HONOUR: [Defence counsel], I'm a bit concerned, you're suggesting that - you seem to be suggesting that the solicitor for the plaintiff has been involved in something that would be improper.

DEFENCE COUNSEL: No, I'm talking about discussions between Mr Rees and Mr Phillips - - -

HER HONOUR: He told you the only discussions that took place were in the presence of Mr Rees, and Mr Rees' solicitor - - -

DEFENCE COUNSEL: No, no - - -

HER HONOUR: - - - so you would have to be making the implication.

DEFENCE COUNSEL: No I'm not, Your Honour. I'm not accepting for a moment that that's the position.

HER HONOUR: Well [defence counsel], then you need to make it very clear that you're not alleging that these discussions occurred in the presence of Mr Rees' solicitors.

DEFENCE COUNSEL : I'll make it perfectly clear. I'm not suggesting that for a moment. (To witness) Now did you have further discussions with Mr Rees on - - -

HER HONOUR: Other discussions.

DEFENCE COUNSEL: I'm sorry?

HER HONOUR: Other discussions.

DEFENCE COUNSEL: Yes, other discussions with Mr Rees on last Tuesday outside this court, but in this very building?---Is that the first day of the court?

Yes?---Yes I did - I think we did have a - - -

Yes?---We - we spoke to one another.

And in those discussions that you had which were between yourself, and Mr Rees, they were had, were they not, in the foyer, or the yard out there, the courtyard?---I can't recall.

Sorry?---I can't recall, no.

HER HONOUR: Do you know where the courtyard is?---Yes, I know where the court - but I can't recall that - you know, discussion there.

DEFENCE COUNSEL: In the foyer area outside the court, and inside this building, you had a discussion during what one might call the lunch hour before the court started, and in that conversation you had a discussion in relation to the angle of ladder, and the stops, is that correct?

PLAINTIFF'S COUNSEL: Your Honour, if this matter was to be raised, there was no suggestion of this in the cross-examination of my client at or nothing.

HER HONOUR: Not that I can recall - - -

DEFENCE COUNSEL: It's not a matter that needs to be put to the plaintiff, he's been in court.

PLAINTIFF'S COUNSEL: If this is an attack to be made on credit - - -

DEFENCE COUNSEL: It's not an attack on your client's credit.

PLAINTIFF'S COUNSEL: Well whose credit's being attacked?

DEFENCE COUNSEL: His. (To witness) Now was there a discussion about the ladder and the stop on Tuesday of last week?---I can't recall that conversation.

Well it's not very long ago?---There's a lot happened in two weeks - - -

Yes?---In this court.

It's not very long ago, and it's the first thing, it's before the court case started. I just want you to answer this question, was there a discussion about stops on the ladder last Tuesday week?---I cannot recall. I repeat, I cannot recall that discussion.

But what you can recall - - -

HER HONOUR: When you say, 'I cannot recall that discussion', does that mean you can't (sic) recall that you had a discussion, but you can't recall what it was, or that you did not have that discussion - - -?---I can recall a discussion but I can't recall what the discussion was about now - - -

DEFENCE COUNSEL: But you recall a discussion that occurred in 2001 with Mr Rees, but not one ten days ago?---Exactly right. Different circumstances.

[111]

DEFENCE COUNSEL: Now go to your new house. Did you paint that house yourself?---Yes.

And the section yourself?---At that stage before the incident, no, because all the weatherboards are painted on the ground before they went up, the first coat.

Did you do any painting up on the - when the timber was up?---All the windows and weatherboards were pre-painted before the went in, and then I took time off from work, and it took me two weeks to paint that house with an extra two coats.

You painted the - - -

HER HONOUR: Was that before or after the accident?---After the accident.

DEFENCE COUNSEL: Why is it so that you didn't use this ladder to do any painting at your new house, is that right?---Yes I did do some painting at that house.

And you used that ladder fully extended to do some painting at your new house?---No.

Why is it that the ladder is covered in paint similar to the colour of your house?---Well the simple reason, it's very windy at Darraweit Guim. I don't know whether you've been there or not - - -

But weren't - - - ?---Just - just let me finish the question (sic). I always put a lot of paint on my brush, and there's always a little bit of spillage.

But weren't the boards painted on the ground?---Yes, but that - - -

No, hold on, but you say the boards were painted on the ground and the wind blew the paint off your brush - when it's on the ground - over onto the ladder, is that what you're saying?---Yes, because I - I - - -

Is that what you're saying?---Yes.

So the reason why you got a lot of paint on your ladder is because you're painting away at the boards on the ground and whoosh, comes the wind, picks up the paint and drops it on your ladder, is that right?---No.

Well you just told us that that's how the paint go on your ladder?---No I didn't, I - not on the weatherboards.

Well what were you painting?---My shed.

The shed?---The shed was painted in that - that colour before the house was even thought about.

Did you extend the ladder to paint the shed?---Not the full extension.

Because a moment ago - and the transcript will show - that you said when painting the boards on the ground, the paint - because of all of the wind out there - was blown onto the ladder?---You said that, I didn't say that - - -

No, no, you agree?---Well I don't - I don't agree with that, because - - -

Well what I suggest is this, is you're just making it up as you go along?---(No audible response.)

Because you realise the stupidity of the answer, and then said no, I'll go back to the shed and if what you say is true - - -

HER HONOUR: Let him - - -

DEFENCE COUNSEL: I haven't put the question yet Your Honour, with respect. (To witness) If what you say is true, that you didn't paint this house until after this accident, that is go up and put on two coats, then you can't have used this ladder?---Not for the house painting, for the shed.

Yes?---You assumed I used it for the house - - -

No, no - - -?---With yellow paint.

No I haven't assumed anything. Tell me this, that ladder has that carried that paint that it has from the first house you painted?---I can't recall that.

[115]

DEFENCE COUNSEL: If one does achieve maximum length by putting the hooks in that position, that is, deliberately so, then that significantly reduces the viability and the safety and the welfare of the ladder and its user?---Yes. Well I know that, I'm the engineer.

Mr Rees also knows that - - -

HER HONOUR: Well how can he say what Mr Rees knows?

DEFENCE COUNSEL: Sorry Your Honour?

HER HONOUR: How can he say what Mr Rees knows?

DEFENCE COUNSEL: I'm putting the proposition to him with respect, Your Honour. I'm not asking him what - I'm putting the evidence to him - - -

HER HONOUR: You can't ask him what's in the mind of one person - - -

DEFENCE COUNSEL: No, I'm putting the evidence to him, I have to put my case. (To witness) Mr Rees also knows that to use an extension ladder in the overextended position is to use a ladder in a dangerous set of circumstances. Now having said that, when one gets onto a ladder, if you physically go and just touch it yourself, it's easier if the ladder is appropriately overlapped - appropriately overlapped - and you can feel some stability in the ladder, correct?---It's very subjective.

If it's not appropriately overlapped, there is a significantly less amount of stability in the ladder, is that correct?---It depends on the experience you have, it depends on - - -

No, I'm asking you to assume this is a man who has a lot of experience and who teaches students about ladders?---Sir, you're asking me to assume that if overlapped correctly it'll be more stable, more rigid then it overlapped more - overextended - - -

Yes?---I daresay it would be - there should be no support - - -

Yes?---Reduction in it was (indistinct).

And a man experienced in ladders, that noticeable reduction and stability would be known to someone experienced in ladders, do you agree with that?---Again, as - as a lay person I would say yes, not as an expert.

And even as an expert - and bearing in mind the 40 odd plus years of experience using ladders and as a teacher of plumbing students using ladders - that plumber with that - - -

PLAINTIFF'S COUNSEL: Your Honour, I object in this way. I don't remember ever being put to Mr Rees at any stage during his evidence that he did, or should have noticed a difference in the stability of the ladder, because of the manner in which it was extended. Now if I'm wrong about that, and if it was put to Mr Rees, then no doubt my learned friend can refer us all to where this was said, but I have absolutely no recollection of it.

If this is to be put to this man on the basis that that was the evidence of Mr Rees, it ought to be put correctly.

HER HONOUR: Is that the situation, [defence counsel], did you put that - - -

DEFENCE COUNSEL: It matters not if I did, or didn't. It's a matter of whether - - -

HER HONOUR: [Defence counsel], did you put that?

DEFENCE COUNSEL: I'm sorry?

HER HONOUR: Did you put that to Mr Rees, that he felt the difference in the stability that he's felt, and his experience should have told him from the two things, one, being correctly overlapped and one being overextended - - -

DEFENCE COUNSEL: Yes.

HER HONOUR: - - - that he could feel the difference?

DEFENCE COUNSEL: Yes.

HER HONOUR: Can you just take me to it?

DEFENCE COUNSEL: I can't at the moment, but I'll find it Your Honour. (To witness) If the position is this, that when the ladder is in the overextended position one's able to visualise that when one is on the first, or second step, do you agree with that?---You - you should be able to.

It says in your report and I'll read it to you - at p.2 of your first report - 'The stop was there with the intention' - what was put to him, Your Honour, in answer to your question was, 'You didn't test it before you got on it. I want you to answer my question, did you test it before you got on it?' His answer was: 'I may well have.'

HER HONOUR: That's not the question of did he feel any difference, is it?

DEFENCE COUNSEL : If you tested the ladder before you got on it would you be able to - with someone with that experience, would you be able to understand the nature of its configuration by reason of its stability, or otherwise - - -?---If tested you would see whether - - -

PLAINTIFF'S COUNSEL: Your Honour, that question is open to the same objection. None of this was put to Mr Rees. It was never put to Mr Rees - according to my recollection - that he noticed, or should have noticed some difference in the stability of the ladder by reason of its configuration. If it wasn't put to Mr Rees, there's no evidential basis for it to be put to this witness, because there's no evidence on what it can be based.

HER HONOUR: What do you say, [defence counsel]?

DEFENCE COUNSEL: Look I'll pass on - I want to just get on with it - I'll pass on, Your Honour.

[122]

Mr Foreman, members of the jury, [counsel for the third party], he's a very interesting fellow. He says to this that there needs to be a sign on this ladder saying don't extend it and then says well, the stands - the people who make all these decisions, they say you shouldn't have one anyway, but [he] must think he makes them, because he's got his own theory about that.

I was just listening to him and I was thinking something that was told to me recently, this court - the Supreme Court of Victoria - travels to regional centres, and it's go to Warrnambool and the court goes to the people, and they have what's called the circuit. In a few months time you'll see a show on television called 'The Circuit' where Garry Sweet's the local magistrate travelling around on circuit, and they're filming it over in Western Australia at the moment as I understand it.

We were in Warrnambool with this very Supreme Court earlier this year, and we were - there was about six barristers who had gone down for the Warrnambool cases, and we were dining at - staying in Port Fairy and we were having dinner probably at the best pub in Port Fairy, and there's a table of eight barristers sitting around chatting. I bet you're wishing - you must be thinking gee I'd be disappointed missing out on that night - and there was a couple seated at a table next to us who were obviously listening to our chat, and they came over and introduced themselves and he was an attorney from LA.

He was a terrific bloke and he said, 'Hey you guys, you're all attorneys.' He said, 'What are you doing down here?' He said, 'Well we've got this case about a fellow who hurt himself at the Portland Aluminium Smelter.' He said, 'Well what's the guy going to get?' I said, 'I don't know, it's a matter for the jury.' 'What happened?' We told him what happened. He said, 'It's easy, he's going to win that guy.' He said these California juries, he said they've gone mad and he was telling us about a case about this fellow who had bought a Winnebago and he was driving down the Santa Barbara Highway, and he and his wife - after their retirement - 'Beautiful, come on, here we go darl, off we go, down the highway.' Picture on cruise control, walks down the back of the bus, pours a cup of tea and next minute, over the garden rail, roll, roll, roll, completely smashed up.

He says they sue Winnebago and a Californian jury give them $5m because there was insufficient instructions on what cruise control meant. We said to him - now this is I swear to you true - we said, 'That just cannot be right.' And he said, 'Yes, no it's true.' He said, 'What's worse is that Sanyo are currently appealing a decision by a California jury where a lady had put her cat in the microwave and it came out frizzled and deceased and she sued Sanyo for nervous shock on the basis that there was insufficient signage on the microwave to stop her putting the cat in, and got 30 grand from a California jury.'

I said to this bloke, 'It just can't be fair dinkum.' He said, 'It is absolutely fact.' Now I don't know if it's fact or not, because - I don't know, but what he told me is fact. It just made me think - I thought I was listening to my American mate when I listening to [counsel for the third party] about the sign, because in this case what Mr Rees says about signage is that I didn't need a sign to tell me don't overextend this ladder and that's his evidence. The standards don't require it, Mr Rees doesn't require it, but Mr Kennett - the opposition over here, manufacturer - he seems to think it does.

But you can I think dismiss that and indeed, the plaintiff's counsel no doubt will have a lot to say about signage. At his farewell Mr Justice Beach who gave 50 years of service to this very court, 25 years as a barrister and 25 on this bench, at his farewell he said, 'It's about time that the community' - by that he was talking about litigation - 'were held responsible for their own actions rather than everyone slipping in supermarkets, or people looking sideways at each other suing each other.' We say his observations were rather apt in relation to this case.

[143]

Hearing [defence counsel] forcefully advance that proposition at the eleventh hour of this case took me back something close to 40 years in the late 1960s when [defence counsel] was a football player and he played in the ruck for a team called the Beaumaris Sharks. The Beaumaris Sharks like their name suggests, had a 'take no prisoners' approach on the football field and that was an approach that was certainly a popular one back in the late 1960s when we had ruckmen of the ilk of Carl Ditterich being rubbed out more often than he was on the field, and we had Mr Phillips - I beg your pardon, [defence counsel], going around in the ruck for the Beaumaris Sharks. And there was a coach of the Beaumaris Sharks whose face I can picture, he had a head like a bulldog, he had sort of a military crew-cut which was popular back in the '60s and he was the coach of the team, and at the three-quarter time huddle of the Beaumaris Sharks football team, if things were going particularly bad for the team at that time, the coach would give an instruction which went along these lines: 'Well, look, fellas we've done all we can, we're 10 goals down, we're going to the last quarter, I've made every coaching move I can think of, but you might as well in the last quarter, you're not going to win the game, go out and start a fight. At least you can give an opposition a player or two, a bloody nose, and they'll come away knowing they've been playing the Beaumaris Sharks, even if you don't win the game.'

What reminded me about the tactics that you saw last Thursday and Friday when we had this desperate attempt to whip up a conspiracy theory, a perjury allegation in relation to Mr Phillips' evidence, was very much like the, 'Look, if everything's failed, you might as well go out and start a fight.' And we saw a few examples of it on that day.

It wasn't only the allegations against Mr Phillips. Remember at one stage we had Notegate, where I wrote a note which I handed to (indistinct) and asked him to pass it and [defence counsel] stopped stream and makes a dramatic show about, 'Did you see that? Did you see the note being passed?' as if the note was somehow some evidence in support of this wild conspiracy theory which he was putting on his coach's instructions. So you needn't have any regard to the colour and the movement, you needn't have any regard to the creation of chaos and confusion which [defence counsel] has been seeking to engender throughout this case in his client's interests.

[160]

125 In Steele v Mirror Newspapers Ltd[77] the significance of counsel's election not to ask for the discharge of the jury following plainly improper comments made by opposing counsel during his address to the jury was the subject of consideration. Samuels JA referred to a passage from the judgment of Brereton J in Wishart v Mirror Newspapers Ltd[78] in which it was observed that a failure to ask for the discharge of the jury would not necessarily be a bar to relief upon the same ground on appeal. Brereton J could see no reason why counsel for the aggrieved party was obliged to apply with promptitude or at all to have the jury discharged rather than hold his hand as long as hope of a verdict in his favour was entertained. Samuels JA, with whom Hutley JA agreed, stated that 'an appellant who seeks a new trial, having failed to object below, undertakes a heavy burden where there was a defect in the trial that was capable of being cured by appropriate directions.'[79] In Fitzpatrick v Walter E Cooper Pty Ltd[80] the failure of the appellant to make application for the discharge of the jury, where the trial judge had dealt clearly and definitely with the improper remarks made by counsel in closing address, was considered by Latham CJ to be conclusive that no injustice would be done if the verdict were not set aside. Dixon J (as he then was) considered that where the misconduct is not so prejudicial as to lead the trial judge to the opinion that it is unsafe to proceed with the trial and the party whose interests may be adversely affected fails to obtain a verdict in its favour, it remains open to that party to complain that notwithstanding the measures taken by the trial judge to remove the prejudice there has been a miscarriage. Dixon J further observed that the appellate court must then give great weight to the opinion of the trial judge and would only be justified in setting aside the verdict if upon a consideration of the whole case the Court was satisfied that the trial had miscarried.[81] McTiernan J considered that the prejudice sown in the minds of the jury was ineradicable, so that notwithstanding the failure of the appellant's counsel to seek a discharge of the jury and his contentment with the warning which the trial judge gave the jury to disregard the offending remarks, the verdict should be set aside.

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