Ronchi v Portland Smelter Services Ltd [2005] VSCA 83

2 The appellant issued a writ out of the Supreme Court claiming damages for personal injury suffered during the course of his employment with the respondent. The claim in damages was tried by a jury at Warrnambool Supreme Court over 22 days commencing 5 May 2003. In answer to the first of a series of questions posed to it the jury found that there was no negligence on the part of the respondent which was a cause of the appellant's injuries and, accordingly, the learned trial judge entered judgment for the respondent and ordered the appellant to pay the respondent's costs.

3 It is necessary to set out in some detail the nature of the claim as pleaded and as it emerged at trial. It is no simple task to identify the issues with precision. The appellant's Substitute Summary of Proceedings and Issues which was delivered on 22 October 2004, by direction of the Court, is almost as inadequate a document as that which it replaced[1]. The summary asserts that both in his pleadings and at trial the appellant alleged that during the course of his employment with the respondent, between 1 December 1992 and 12 November 1997, the appellant suffered injury, in particular, by four activities. Those activities, as pleaded, are set out below. The words in parenthesis come from the summary, and their source is given as the statement of claim, in which those words simply do not appear. If the additional words arose from any amendment of the statement of claim, or by way of further or better particulars given as to the claim, we were not so advised. As asserted in the statement of claim the activities were:

(a) The driving of a hauler (cf. "on 21 September 1995 and throughout his employment when operating an RFW hauler");

(b) The unblocking of spillage conveyors (cf. "22 January 1995 when clearing the spillage conveyor");

(c) The cleaning out of a blast chamber (cf. "O_n 2 April 1995 when clearing the shot blast chamber"_) ;

(d) The driving of forklifts ("driving a forklift").

"The injuries suffered by the appellant as a consequence of the events of 21 (sic) January 1995 and 2 April 1995 were minor and not alleged by the appellant to be of long term significance and no issue of consequence occurred in the trial in respect of each of these events which will be relevant to the appeal".

5 Notwithstanding that concession, now made, the jury heard evidence on these issues and the trial judge directed the jury on the basis that they were relied on as part of the plaintiff's case, and spent some time elaborating the allegations concerning them and the answering contentions of counsel for the respondent. But, as his Honour told the jury, defence counsel agreed that what the case was really all about was "the hauler and in particular about the seating in the hauler". The pleaded issue concerning the forklift seems to have disappeared altogether during the trial.

6 The appellant pleaded that the respondent had breached its duty of care (the existence of which was admitted) by failing to provide safe plant and appliances, a safe system of work and efficient supervision. Of the many pleaded particulars of negligence or breach of duty attention focused on the complaint that the appellant was caused to work with a hauler which had inadequate and/or inappropriate seating, suspension, or access to controls. On the appeal counsel on both sides focussed attention on the claim concerning the seat and ride of the hauler.

7 The appellant drove an RFW hauler which had been developed by the smelter itself and commissioned for manufacture in 1993. The vehicle was a large truck-like machine which carried up to 12 tonne of large, heavy, anodes within the smelter premises. The appellant mainly drove one of the four haulers known as No. 4 but occasionally operated some of the other haulers. During the course of his employment his time was allocated approximately equally between driving a hauler and doing manual work in the "rodding room" of the smelter. The latter work is of no relevance for this appeal.

8 When driving the RFW hauler the appellant would recover spent anode butts from the pot rooms and convey them on the hauler to a processing line where they would be removed from trays on the back of the hauler. The anodes, once removed mechanically, would be put through a cleaning and repair process and would be then placed in new anode blocks whereupon they would be returned to the hauler and taken back to the pot lines.

9 The haulers were designed to perform the very specific activities described above. Evidence was led at the trial by the appellant concerning difficulties caused by the vibrations through the seats which were fitted to the haulers. From the time of their commissioning until the time of trial the evidence suggested that there had been three significant changes to the seating arrangements. The first seat which was fitted was a mechanical "scissor" style seat made by Isringham (or "ISRI"). The appellant said in his evidence that he could not adjust that adequately for his above-average height. Those seats were then modified by having a block placed at their base so as to raise their height, to supplement manual adjustment to the seat by the operator. That first ISRI seat was then replaced by a seat which was adjusted by air compression. This was the ISRI 500. Finally, a later style air seat, called a "KAB" seat, was installed.

10 The appellant identified a specific incident which occurred on 21 September 1995 as being the critical cause of his continuing disability, pain and suffering, but even prior to that day the plaintiff said he had experienced buttock and lower back pain as a result of driving the hauler, and was getting some minimal treatment from the smelter doctor and physiotherapist.

11 On 21 September 1995, after driving hauler No. 4 for about an hour, the appellant experienced back and leg pain and reported the incident to his supervisor, Mr John Elford, and filled out an incident report form on that date.

12 In the incident report of 21 September 1995 Mr Elford recorded that the plaintiff had experienced pain in his hip after driving hauler No. 4 and then experienced pain in his lower back, extending into the right leg. Under the paragraph relating to "Causes" it was recorded:

"Seat in this hauler has inadequate height adjustment for above average height operators (190 cm) and padding on seat is worn out. Effort required to hold brake pedal, to turn/rotate seat may have contributed to aggravation."

13 Under a heading relating to "Short-term preventative control measures already taken" the incident report form recorded that it would be reinforced with all operators that it was important to be comfortable when setting the seat adjustment and if they were not comfortable the vehicle should not be driven. It was recorded that one Lesley Walker was to illustrate to the crews the appropriate posture for driving vehicles, and that one Jim Burns was to present to crews information regarding adjustment of seats "and/or the alternative options". Additionally, Mr Burns and Mr Ronchi "will improve padding". Mr Burns was "to look at braking system, to reduce effort required to turn/rotate seat". Under "Planned Corrective Actions" it recorded that Jim Burns was to investigate this incident.

14 Throughout the trial there was confusion as to what seat was installed in the hauler being driven by the appellant on 21 September 1995, and also as to what type of seat he used both before that incident and thereafter[2]. The plaintiff himself gave conflicting evidence of the type of seat on that day. The uncertainty was compounded by the fact that a seat which some of the expert witnesses for the respondent had been advised was the very one fitted to hauler No. 4 on that date was present in court and was subjected to testing by those witnesses. That seat was an undamaged ISRI 500 air seat; it had no worn padding. Although doubts were raised during the trial about whether that was indeed the very seat, or even the same type of seat, that had been used on that day those questions were never resolved, but in his final address senior counsel for the appellant invited the jury to infer from the content of the incident report of 21 September 1995 that the seat on that day was a mechanical seat, not an ISRI 500 air seat. On the appeal Mr Tobin conceded, however, that uncertainty as to that still remained at the end of the trial.

15 Equally uncertain, it seems to me, was the precise way in which the claim was being put. Was it being alleged that the appellant's back and other injuries were caused by successive and continuous strains (including on 21 September 1995) by virtue of inadequate seating, and if so, which seating and when? Or was the claim being put on the basis that whatever the seating was on 21 September 1995 it was that seating, on that day, that caused the injury, and whatever seat it was it was inadequate to a degree that constituted negligence? The appellant's case appeared to embrace both hypotheses[3]. In his final address Mr Tobin contended that the seat at 21 September 1995 was a mechanical seat but that an air seat ought to have been installed not only on that day but from the outset, when the haulers were commissioned.[4]

16 The fact that even at this stage the precise basis of the claim, what factors constituted the claimed negligence and what injuries were suffered (and at what times), provides a very important backdrop to the multitude of complaints which are now made by counsel for the appellant concerning the adequacy of the judge's rulings and charge to the jury.

17 There is one additional factor which is important to keep in mind when assessing those complaints. Before the jury were empanelled they were told that the trial would occupy them for two weeks. That was based on the estimate given by counsel on both sides. I do not suggest that it was otherwise than an error on trial counsel's part but it was a poor estimate[5], as the trial ran for five weeks[6]. This circuit jury had been badly misled, a circumstance which must have placed the trial judge under acute pressure to hold the jury to their task. If, in addition, the plaintiff's case, even now, is difficult for his counsel to articulate, then complaints about the judge having failed to do so adequately to the jury need be treated with due caution.

18 As will emerge, I have reached the unfortunate conclusion that the judge in this case did fall into error in his directions to the jury and that in consequence the verdict must be quashed and a new trial be ordered. In my opinion, however, the judge received far less assistance than he was entitled to expect from counsel, in particular on the appellant's side, in performing his task. Having regard to the significant overrun of the case it is particularly regrettable that evidence was called on issues which are now said to have no significance to the appellant's case as it was left to the jury, on his behalf, by his counsel.

19 A multitude of grounds of appeal were relied upon, most being without substance. Some however, merited closer attention but without resolving all of the grounds of appeal two discrete complaints ought be upheld, and will determine the outcome of the appeal.

The Jones v. Dunkel[7] directions.

20 A very great deal was made throughout the trial by senior counsel for the appellant about the failure of the respondent to call as witnesses persons who would be expected to have direct knowledge of the relevant events. In particular, he contended that there were witnesses who could have been expected to give evidence about topics such as the choice of and replacement of seating for the haulers; the adequacy of the seating on the haulers; complaints which had been made about the adequacy of the seats; what consideration had been given to replacement seating; what maintenance had been performed; what ergonomic investigations were conducted; the events of 21 September 1995, and so forth.

21 Although a number of persons were identified during Mr Tobin's address to the jury, and on the appeal, as falling within the category of persons who ought to have been called by the respondent, and whose unexplained absence should have been the subject of a Jones v. Dunkel direction, three in particular were highlighted, namely, Merrilyn Risk, John Elford and Jim Burns, and it is sufficient to have regard to the situation of those potential witnesses in determining whether there is merit in the complaints made as to the application of Jones v. Dunkel.

22 Throughout the course of the trial the appellant's counsel made frequent reference to a report said to have been written for the respondent by Ms Merrilyn Risk, an occupational health and safety officer employed by the respondent at the time, but no longer so employed. Her whereabouts were known to both sides. Witnesses confirmed that she had produced a report, dated, so it emerged, 24 March 1994, which related to problems associated with operation of the haulers, and for which she interviewed the hauler drivers. Ms Risk was said to have ergonomic qualifications. Substantial passages from that report were put to witnesses by counsel for the appellant, but the report was not tendered by them, for reasons which are unexplained. In his charge to the jury the judge said that to the extent that those passages were adopted by witnesses then they became evidence in the case. He did not further elucidate what those passages may have been. That direction may have been unduly favourable to the appellant, but it was not challenged by counsel for the respondent. Among passages read to witnesses by counsel for the appellant, and "adopted" by witnesses, was the statement:

"The amount of jarring, I believe, is a common concern over a period of time and will definitely contribute to neck and back injuries in some people".

23 At the outset of the trial counsel for the respondent announced, in the presence of the jury, that the respondent may call as a witness Mr John Elford. Shortly before the appellant's case was closed, however, counsel advised the Court and the appellant's counsel that Elford would not be called. He was the appellant's supervisor and the person to whom the incident report was made. One witness agreed that no one else working at the smelter at that time would have been more familiar with the appellant's work situation than Elford.

24 Jim Burns was vehicle co-ordinator and maintenance manager. He was delegated the task of investigating the incident that was reported on 21 September 1995, and was said by a witness to have been the person whose job was to investigate complaints by drivers as to the comfort of hauler seats. Burns was also the recipient of an incident report on 12 July 1996 concerning Hauler No. 2. The appellant had complained about a problem with its seat, and Burns directed a memo to the maintenance company contracted by the respondent to work on the haulers about the need to check hauler seating.

25 In his charge his Honour told the jury that the question of absent witnesses and missing documents had received a deal of attention during final addresses. He said that the jury had been given accurate advice as to the law by counsel in their addresses, but that since it was an important part of the case he needed to address the topic himself. His Honour then directed the jury as to Jones v. Dunkel, in terms which were not said to be in error, albeit in one paragraph the language used by his Honour was, with respect, somewhat confusing.

26 After correctly telling the jury that they could not speculate as to what the witnesses might have said in evidence had they been called, his Honour then added:

"We just do not know what a witness might say. Counsel, having had the experience, will tell you that many witnesses told them one thing back in the office, and then come in the witness box and say something quite different."

Mr Tobin complained that that introduced an irrelevant consideration into the Jones v. Dunkel issue and I agree that it was an unnecessary and confusing remark in the context of this case. That, of itself, would not justify intervention.

27 After again directing the jury that the absence of a witness could not be used to supplement the evidence, his Honour said that there might be reasons when even though the failure to call a witness was unexplained the jury would regard it as inappropriate to draw an adverse inference that the witness would not have assisted the party's case. In passages which were then, and on appeal, the subject of considerable challenge, his Honour said this:

"For example, you might not have been told, but you might have reason to think that a particular witness would not add anything to the totality of the evidence.

You have been here long enough. You will be aware that there are a number of witnesses on both sides who could have been called, but if they had they might not have added anything at all to the body of evidence you already have. There is not much point proving anything five times over. And so that might be a reason why a witness has not been called. And if you think that was the reason, then you would not draw the inference."

28 At this point his Honour made reference to Mr Elford, about whose absence Mr Tobin made complaint, and said:

"A party may have been connected with a witness at one stage. That connection may have been broken off, and the other party might have taken up that connection, so where a witness was once in one party's camp, that witness might have moved to the other party's camp. And that is perhaps true. I don't know. But it is perhaps true of Mr Elford.

He was, at one stage, an employee of the defendant's. I do not know whether there is any evidence about that, but there has been a suggestion which you have heard, that he is now a friend of the plaintiff's. Well, if there is evidence about it, we might - I might be able to point you to it - I do not know. But at the same time, Mr Elford's case is further complicated because he was originally on the list of witnesses to be called by the defendant. Now, you might think that in those circumstances the plaintiff - even if Mr Elford is now a friend of the plaintiff's - indeed, the evidence was as I recall that Mr Elford was a supervisor with whom the plaintiff always got on.

But assuming that the friendship, or at least a degree of amity, still exists between the two, it would have been quite reasonable for the plaintiff you might think, to sit back and wait for Mr Elford to be called by the defendant, rather than call him himself. There is, as Mr Tobin pointed out yesterday, an advantage in certain circumstances in being able to cross-examine a witness, particularly if you think they might be favourable to you. Because in cross-examination you can ask leading questions, you can say, 'Yesterday you did this, didn't you?' that is a leading question.

You cannot put that kind of question to a witness of your own, so if you wanted to get the same information from your own witness, you have to say, 'What happened yesterday?' And then of course the witness has to tell the story in the witness' own words. So there are reasons pro and con why Mr Elford might not have been called by either party. You might think that in those circumstances you cannot draw any inference either way in relation to Mr Elford."

29 In my view, it was an error for the judge to have directed the jury in the terms that he did. The introductory words "You have been here long enough" were particularly unfortunate because that comment, when coupled with the proposition that "There is not much point proving anything five times over", invited the jury to decline to draw the inference, which the appellant contended ought to be drawn, notwithstanding the fact that it was plainly arguable that the witnesses had relevant evidence to give, that they were within the camp of the respondent, and that their absence had been unexplained.

30 Mr Rose submitted that his Honour's statements about being there long enough and the undesirability of proving something five times over had not been made in response to anything said by him in his address. He did not seek to defend the statements as being appropriate. Indeed, he described the comments as amounting to a "gloss" on the Jones v. Dunkel principles, which his Honour had introduced without warning to the parties. He submitted that although the comments may not have been in accord with Jones v. Dunkel principles, no harm was done by them in this case and the jury would not have misused the directions so as to deny a fair trial to the appellant.

31 In my opinion, the judge's introductory statements offered a possible explanation for the failure to call witnesses which had not been advanced by counsel for the respondent. The statements "you might not have been told, but you might have reason to think that a particular witness would not add anything to the totality of the evidence", and that "they might not have added anything at all to the body of evidence you already have", were not based on any evidence before the court. The evidence was very much to the contrary, with respect to Ms Risk, Mr Elford and Mr Jim Burns. The very proposition being advanced by counsel for the appellant was that each of those witnesses had a unique perspective as to some critical issues in the case, and were likely to have had evidence to offer which others would not have been in a position to give. His Honour said that the complaint about missing witnesses was "an important part of the case", but his directions failed to reflect that, and did not direct the jury in the manner to which the appellant was entitled, in order to seek to gain maximum advantage from the application of the Jones v. Dunkel direction.

32 The unexplained failure by a party to call a witness who is in the camp of that party, where it might reasonably have been expected to have called the witness if that person's evidence would have been favourable to the party, means that it is open to the jury to infer that the evidence would not have assisted the case of the party not calling the person.[8] The jury may take the absence of a witness into account for two purposes, as stated in O'Donnell v. Reichard[9]:

"(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken."

33 The jury received no direction as to how to determine whether a missing witness was in the camp of one party or the other. The mere fact that a missing witness was or had been an employee of the respondent was not sufficient to place him or her in the respondent's camp, but the higher the person stood in the structure or confidence of the employer the more likely it was that the witness was in the camp of the respondent: see Earle v. Castlemaine District Hospital[10]. With respect to these three witnesses the jury needed assistance in determining that question, but save as to Elford (and incorrectly in his case, so Mr Tobin submitted) the judge failed to direct the jury adequately as to the potential application of the Jones v. Dunkel inference. Mr Tobin submitted that his Honour made the position worse by all but inviting the jury to decline to draw the inference with respect to Elford, because it was "perhaps true" that he was in the camp of the appellant and was now a friend of the appellant.

34 His Honour was incorrect in describing Elford as "now" a friend of the appellant, as he acknowledged when he was invited to re-direct the jury. Furthermore, in my view, the jury were given no appropriate direction as to how they might decide whether he was in one camp or another. His Honour's direction seemingly placed Elford in the appellant's camp, but, properly directed, it was much more likely that the jury would have regarded him as being in the respondent's camp. Although he had left the company his role at the time of the plaintiff's claim was akin to a management one, and if the plaintiff was injured due to defects in the seating and maintenance of the haulers, for which Elford was responsible as supervisor, then he was arguably more likely to want to defend the company's position, rather than support the plaintiff's claim. In any event, those are the sort of factors which ought to have been placed before the jury for their consideration.

35 Counsel sought a redirection as to the treatment of the failure to call Mr Elford and his Honour gave a redirection which Mr Tobin submitted was inadequate in the circumstances. His Honour said by way of redirection:

"I mentioned, and I am satisfied now, incorrectly, that there was a current amity, friendship, between John Elford and the plaintiff. In fact there is no evidence of anything but some friendship while they were together working at the factory."

36 Mr Rose submitted that the mistake was thereby corrected, and no additional re-direction had been sought. In my opinion, the re-direction was not adequate to undo the problems created by the terms of the direction concerning Elford. The problems with the direction concerning Elford were further compounded by his Honour's discussion about it being "quite reasonable" for the plaintiff/appellant to have waited for Elford to be called by the defendant/respondent, "particularly if you think they might be favourable to you". Not only was there no evidence that the plaintiff might have thought Elford's evidence would be favourable to him, it reinforced the suggestion that Elford was in the plaintiff's camp. Once again, the benefit of the Jones v. Dunkel direction was lost: if Elford was in the respondent's camp then his unexplained absence as a witness entitled the plaintiff to invite the jury to draw the adverse inference that his evidence would not have assisted the respondent's case. The fact that had he been called by the defendant he might or might not have proved helpful to the plaintiff's case did not bear upon the entitlement of the plaintiff to take advantage of the inference.

37 After saying that counsel for a party calling a witness was not permitted to cross-examine the witness, and could only ask non-leading questions, such as, "what happened yesterday", his Honour then added:

"And then of course the witness has to tell the story in the witness's own words. So there are reasons pro and con why Mr Elford might not have been called by either party. You might think that in those circumstances you cannot draw any inference either way in relation to Mr Elford."

38 Elford's absence was therefore treated as something which might be put to one side, as being no more capable of supporting an inference against the respondent's interests than the appellant's.

39 In the case of Elford, in particular, his absence was capable of supporting a conclusion that the appellant had in fact been injured on the 21 September 1995. The assertion by the plaintiff that he suffered injury on that day was denied by the respondent at trial, notwithstanding the fact that liability had been accepted for compensation purposes by the insurer.[11] Furthermore, the absence of Elford was also capable of strengthening a conclusion that the appellant had been using an old style mechanical seat as at that date, or at the very least was using an ISRI 500 seat which had deficient padding, or that whatever be the seat at that time, he suffered injury on that date which adequate seating would have prevented. The jury received no direction as to any of those matters.

40 In my opinion, the absence of Ms Risk and Mr Burns[12] similarly required a more detailed direction from the judge.

41 Failure to instruct a jury appropriately as to the conclusion they might draw from the failure of a party to call witnesses would constitute a material non-direction: Transport Industries Insurance Co. Ltd. v. Longmuir[13]. In my opinion, it did so in this case.

42 His Honour next turned to the question of documents which had not been tendered by the respondent. His Honour did not refer to the absence of Ms Merrilyn Risk as a witness (as he ought to have done, in my opinion), but discussed her report as being one of the missing documents about which complaint had been made by the plaintiff. His Honour told the jury that portions of Ms Risk's report from 1994 were in evidence and said that some portions of that report had been put to witnesses and been adopted by them.

43 As to other documents which had not been tendered, his Honour spoke of "check sheets", which were records of maintenance on the hauler. He told the jury that there was a procedure, by way of discovery, where a party could require his opposite party to produce an affidavit of documents, whereupon if there has been inadequate discovery application could be made to the court. His Honour told the jury that he had given them that "background" against which, as they thought appropriate, they could "take on board" the submissions of counsel about the absence of documents or the failure to call witnesses.

44 Mr Tobin complained at trial and on appeal that deficiency of the respondent's spouse in the discovery process was an entirely different question to the one which was being raised in his complaint, which concerned the failure of the respondent to tender documents at trial. He was not complaining that he was denied access to a copy of the Risk report; indeed, he did have a copy of it. His contention was that it was a document of the respondent's which plainly addressed the question of the safety of the seating in the haulers, from an ergonomic perspective[14], so that the failure to tender that document amounted to a failure to call evidence which was compiled and held in the camp of the defendant. There is no doubt that the Jones v. Dunkel inference was open to be drawn, by the unexplained failure to produce that evidence. The Jones v. Dunkel principle can equally apply to missing documents as to missing witnesses.[15]

45 On Friday 29 May 2003, during a break in the charge complaint was made by Mr Tobin that his Honour had confused the Jones v. Dunkel direction as to missing documents by his reference to discovery. In response, his Honour gave a redirection to the jury that, notwithstanding what he had said as to the right of a party to require advice as to the possession of documents held by the other side, the "rules" relating to the non-production of documents in court still applied. He added:

"So that if a document isn't produced from a source, where you might expect it to come from, then you may if you wish, draw the inference, about which I spoke before."

His Honour added that the jury could not speculate as to the contents of the document but could draw an inference that it would not have assisted the party in whose possession it would be expected the document to have come from.

46 As Mr Tobin conceded, the appellant could have tended the Risk report, but chose not to do so. In those circumstances the importance of the lost benefit of a Jones v. Dunkel direction concerning that document was much reduced. It was, however, unfortunate that his Honour directed the jury about Ms Risk's report, but not about her failure to be called to give oral evidence. They were quite distinct issues, and it was the failure of her to give evidence which counsel for the appellant had emphasised throughout the trial, and extensively so in his final address.

47 The re-direction as to non-tendered documents tended to blur the distinction between "production" and "tendering" of documentary evidence, but I have concluded that it was otherwise adequate to overcome the identified defect concerning non-tendered documents. The problems with the directions concerning absent witnesses remained, however.

48 Mr Rose submitted that if there were deficiencies in his Honour's elaboration of the Jones v. Dunkel principles and their application to the case, the charge had to be read in the context of counsels' addresses. They had both dealt extensively with Jones v. Dunkel, and the fact that his Honour had told the jury that counsel had got the law right meant that the jury would be unlikely to fall into error by virtue of any omission in the charge concerning the law. I do not accept that deficiencies in the directions could be overcome in that way.

49 The judge's charge took several days to deliver. The jury retired at about 10.30 a.m. on a Monday morning. During its course exception was taken by counsel for the appellant on a range of topics, and more than once on the suggested inadequacies of the Jones v. Dunkel directions. Substantial submissions were made on that topic on the Friday preceding the jury's retirement on the Monday. His Honour said that he would consider those objections over the weekend and decide whether to re-direct. On the Monday he re-commenced the charge without re-directing on the topic. At the conclusion of the charge, when the jury retired, Mr Tobin again took exception on a number of bases, including as to the Jones v. Dunkel directions, but did not seek a further re-direction.

50 His Honour then made the following ruling, as it concerned Jones v. Dunkel:

"I think generally the charge in relation to an admission was otherwise a balanced and fair one. I do not propose to recharge in relation to the effect of medications on the plaintiff. I think that is an area which is [fraught] with difficulty in any recharge, and in any event is best dealt with by the parties putting their cases to the jury. I also think that the Jones v. Dunkel position is a very difficult one where there was a long trial and where you can point in almost every direction to instances where witnesses who might have been called have not been called.

I do not think the jury should be left with the impression that both sides are engaged in a conspiracy to call, or not call, witnesses depending upon a view of things that would best advance one case, or disadvantage another case. In my view, Jones v. Dunkel - because it relates only to inferences that can be drawn anyway - is one that should be dealt with in a charge in a way that it does not make it a point (sic) issue for the jury.

The danger if it does become a central part of the dispute between the parties is that the jury will not draw inferences, but they will speculate. In short, the Jones v. Dunkel point is not one that, it seems to me, ought to engage a judge in charging the jury more than to the degree necessary to explain to the jury what the law is; with some appropriate examples. In general the point is much better left to the parties to make if they wish. It is an argumentative point, and one that a judge should deal with with care, but on a limited basis.

The arguments about the point in this case demonstrate the danger of going to the jury on the basis that one side has not called A and the other side has not called B. The only point which does give me some concern is a point made by Mr Rose about the defendant's position in relation to damages."

51 The fact that counsel had correctly stated the law in their addresses is not to point. Indeed, I would expect no less. But it is the judge who must direct the jury on the law and the judge who must relate the law to the facts of the case[16]. That task can not be left to counsel; the judge's responsibility in those respects is not removed by virtue of the fact that counsels' addresses dealt with the same topics.

52 In my opinion, therefore, there were a number of important deficiencies in the directions as to Jones v. Dunkel. The grounds of appeal relating to those directions have been substantially made out. Whether those deficiencies would necessitate the setting aside of the judgment is a matter I will later address.

The expert evidence

53 The appellant's grounds of appeal made numerous complaints concerning the expert evidence which was called at trial. In the first place, complaint was made that the evidence of three defence witnesses, Mr Dohrmann, Dr Jenkins and Mr Leske, ought not have been admitted. It was contended that their evidence was irrelevant because it related to a state of seating and suspension of the hauler which did not apply at the time the appellant had been injured. Alternatively, it was contended that if the expert evidence was to be admitted then it ought to have been accompanied by evidence as to the modifications that had occurred to the hauler between the time of the appellant's injury and the experts' testing of the hauler, and the experts ought to have been required to give evidence that they had taken those modifications into account. In the event that the evidence was admitted, then, so it was said, the jury ought to have been more clearly directed as to the manner in which they could use that evidence.

54 Counsel agreed that the relevant principles of law governing the admissibility of expert evidence were as stated in Makita (Australia) Pty. Ltd. v. Sprowles[17], by Heydon, J.A. where his Honour held:

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v. The Queen [1999] HCA 2; (1999) 197 C.L.R. 414 (at 428 [41]), on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise'."

"The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v. John Holland Constructions Pty. Ltd. [1984] 2 N.S.W.L.R. 505 at 509-510; Paric v. John Holland (Constructions) Pty. Ltd. (at 846; 87).[18] One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved."

55 One fundamental difficult in assessing the complaints both about the admissibility of expert evidence called by the respondent and as to the directions given concerning that evidence, is that the admissibility of that evidence depends to large extent on knowing just what was the plaintiff's case as to what seat caused his injuries, and at what time.

56 His Honour ruled[19] that the evidence of the experts was admissible provided that the defence did not seek to contend to the jury that the hauler was in the same state when examined by the experts as it had been when the appellant drove it. He held that the differences in the hauler between the time when the appellant drove it and the time of the experts' inspection would be sufficiently apparent to the jury by virtue of the questions which would be put to the experts in cross-examination, but that none of the modifications which had occurred had "that degree of specificity which would create the difficulty that Dr Jenkins and Mr Leske were not comparing like with like". His Honour added:

"As a further safeguard, I would indicate that I would not look favourably upon the defendant going to the jury on the basis that the jury should accept the defendant has made continual improvements to the RFW hauler to improve its ride without specifying those particular improvements, or in such a way as to cloud the picture so the jury would not be able to assess the relevance of any changes between the time that the machines were operated by the plaintiff, and the time when they were examined by Dr Jenkins and Mr Leske."

57 Mr Tobin submitted that only the respondent was in a position to advise the expert witnesses, precisely, of the changes which had been made to the hauler and its seating since the appellant suffered his injuries. The respondent had maintained records of maintenance to the vehicle and of modifications; it was the respondent for whom Ms Risk had investigated complaints by workers as to difficulties with the seating and to whom she made recommendations for changes; it was the respondent which would have had records disclosing the considerations which led it to choose the original seating and which caused it to approve changes to that seating.

58 Thus, counsel for the appellant contended that it was only if the respondent produced all of its available information to its experts as to changes which had occurred to the hauler that the experts ought then be permitted to give expert evidence, because only then would they have relevant evidence to give, in that it either related to the state of the hauler as it had been when the appellant drove it, or else their opinions allowed for the subsequent changes, and provided the jury with the assumptions of fact on which the opinions were based.

59 For the respondent, it was contended that the complaints raised by the appellant only went to the weight of the expert evidence: the evidence was admissible, because the experts did give the bases and assumptions on which they formed their expert opinions. If counsel for the appellant wished to contend that other changes ought to have been taken into account then by making proper use of pre-trial discovery, and by conducting their own investigations, they ought to have ascertained what changes had been made, so it was submitted. They had the opportunity to challenge the weight of the evidence of the expert witnesses by referring them to any changes which the appellant's counsel contended the experts had failed to take into account, adequately or at all, thereby leaving it to the jury to assess the weight they would accord to the opinions of the experts.

60 Having been permitted to give evidence, Mr Dohrmann, a mechanical engineer with specialist training in ergonomics, said that he had examined hauler No. 4 in November 2000 and checked its height and the range of movements in the seat, including its forward and backward movement. He also measured the steering wheel and assessed the location of pedals and their angle and distance from the seat. The seat which was fitted to the hauler for the purpose of his testing was the ISRI 500 which was present in court. He sat in the hauler as it was driven in order to assess the degree of vibrations. No objective measurements of vibrations were made. The vehicle had solid rubber tyres. He saw only one log book, being the then current one, located in the vehicle when he tested it. The witness left the witness box to demonstrate features of the ISRI 500 seat. He considered that the seating was appropriate and neither the seat nor any vibrations in the hauler created a foreseeable risk of injury to the driver. The steering wheel operation was satisfactory, as were the foot pedals. He said he did not test the old mechanical seat.

61 To cross-examination he said he was unaware of complaints from drivers other than the appellant about the inadequacy of the seating on the hauler and had he known of other complaints he would have investigated them. If Merrilyn Risk had reported a problem with seating, in particular jarring, then, he agreed, you would need to have followed up on that, to work out what was causing the problem, and to have regard to the log books as to any complaints. In the absence of there being any evidence of complaints about the seating he considered that it was satisfactory. It was put to him that for seven or eight years the steering wheel had not been adjustable. It was also put to him that operators said that the seating "now" was satisfactory, because there were no longer the problems of "six or seven years ago". The witness said that if that was so then there had been a change for the better.

62 The evidence of this witness, therefore, was as to the satisfactory nature of the hauler when fitted with an ISRI 500 seat and when configured as at 2000. In cross-examination it was put to him, however, that the evidence disclosed that it was an "old style seat" which was fitted in the hauler as late as July 1996[20], and, in response, he agreed that he had conducted no tests on a mechanical seat. In re-examination he said that based on his on-site observations and measurements of the seating his opinion as to the appropriateness of the vehicle was that:

"I'm still satisfied and would've been satisfied knowing its brand, the particular model and its application that in general and in the absence of any other information that it would be a satisfactory seat".

63 If the appellant had not been using an ISRI 500 seat when he suffered the injury, in particular as at 21 September 1995, then the evidence of Mr Dohrmann was completely irrelevant, save, paradoxically, to the extent that it demonstrated that once a vehicle had the seating and general configuration of the hauler as at 2000 then the appellant would probably not have suffered the injury which he claimed to have suffered. If the appellant's case was that he was using an old style mechanical seat then Mr Dohrmann's evidence could only have been helpful to the appellant's case. As it was, much time was occupied in the trial with him being challenged on the basis that even if the appellant had been using the ISRI 500 seating then Mr Dohrmann had failed to allow for factors that would have produced greater vibrations than he acknowledged.

64 Mr Leske, a mechanical engineer, was requested by Dr Jenkins to perform tests on the vibrations of the hauler and its seating, and did so in July 2002. He then provided the test results to Dr Jenkins. He agreed that the condition of the padding of the pan or squab of the seat was important to the vibrations. He said that the seat he tested on the hauler was that present in court, i.e. the IRSI 500 (which had no damage to its padding). He agreed that it was possible that if a person was driving with a "damaged seat" in 1995 then upon it being tested the measurements which would then be obtained would be "far different" to those he took on this occasion..

65 Dr Jenkins, a mechanical engineer, inspected the hauler in July 2002. When he saw the hauler the seat fitted to it was a KAB, not the ISRI 500 which he had requested be fitted. The latter seat was present at the scene and he inspected it. He also inspected the cabin. As to the ISRI 500 he said it was capable of being fully adjusted, but it was not fitted with an air bag when he saw it. There was no "riser" present when he examined the seat. He was asked what assumptions he made about the layout of the cabin in 1994, 1995 and 1996, and objection was taken to his answer. At that point the judge gave the jury the following direction:

"HIS HONOUR: Ladies and gentlemen, as with all experts, their opinion depends upon the validity of the instructions they're given. When doctors examine anybody, they almost invariably take a history - they ask the patient what's wrong with the patient and of course the patient - if the patient's a lay person as most of us are - tells the doctor what he or she thinks the symptoms are. A doctor will ask questions which are designed to assist the doctor to understand the condition of the patient. The doctor may or may not believe what the patient is telling a doctor. Sometimes a doctor may have good reason to think that the patient is not being entirely truthful. But the doctor, as any other expert, will do his or her best with the information that he or she has got.

Now, Dr Jenkins was given certain information; he acts upon that information. But when you're told what information he was given, the important thing to remember is that the relevance of you being told what Dr Jenkins was told is so that Dr Jenkins can explain how he reached his opinion. It's not to prove the truth of the information he was given. He may've been given information that was partially right, wholly right or wholly wrong. We're interested in that information not for its truth or its falsity, but only insofar as it was the information upon which Dr Jenkins (indistinct).

So that's the basis of the question that Mr Moloney asked. Mr Tobin was quite right to make the point that we have to distinguish between what is evidence of the truth of what was said, and what was simply put to Dr Jenkins as a basis for his opinion."

66 The evidence of Dr Jenkins continued. He said that he was told by the respondent's agents that there had been a number of changes made to the hauler since 1995. He made assumptions that the steering wheel had been moved from being on top of the dashboard to being connected to the floor and he said he was shown a cabin layout plan applicable to the earlier time. His next assumption was that in 1995 the ISRI 500 had been fitted but that at some later time it was replaced by a KAB seat "specially purpose developed". He had been told that a riser had been fitted at some time. He next assumed that the throttle and brake pedals had been rotated slightly outward. He took measurements of the controls in the cabin and measured the movements of the ISRI 500 seat. Because the ISRI 500 seat was not fitted when he saw the hauler he arranged for Mr Leske to conduct vibration measurements once it was. Those results showed that the seating met appropriate standards, and vibrations were below the level where injury was likely to be caused.

67 When counsel for the respondent sought to tender the vibration charts, as prepared by Mr Leske, objection was taken to their tender, it being said to be irrelevant evidence since the hauler was not in the state it had been when used by the appellant.

68 The judge gave a ruling admitting the evidence, in the course of which he said[21]:

"The position then it seems to me is this. Modifications have been made to the RFW haulers over the relevant period. Some of those modifications were specifically designed to minimise the vibrations within the cabin of the machine. Two in particular may be said to fall into that category. First, modification to the seat, including the entire replacement of particular seats; secondly, the modification to the mounting of the rear of the cabin. Initially the cabin was at those points mounted on rubber pads.

While Mr Ronchi remained as an operator with the defendant, those mountings were altered. The rubber pads were changed to metal plates to which the cabin was rigidly fixed. The evidence as I recall it is that that modification reduced the vibrations felt within the cabin.

Given that I have accurately recounted the state of the evidence, in my opinion the jury may be placed in a position where they may adequately judge the relevant differences, to the extent that they exist, between the RFW hauler No. 4 as tested by Dr Jenkins and the machines, in particular No. 4, as operated by the plaintiff. If I am right about that, then the jury will be able to assess like with like, given that the differences between the machine at the time that Dr Jenkins tested it, and the machines at the time the plaintiff operated them are ascertainable and their effect on the rider of the machine can be put to Dr Jenkins."

69 In the evidence in chief and cross examination which followed this ruling Dr Jenkins contended that he had made allowances for the changes made since 1995, in particular making an assumption that an ISRI 500 seat had been fitted, and also allowing for people of different heights using the hauler. He said he understood that the pedals were in much the same position as 1995. He said that to the best of his ability he had made his assessment based on the geometry of the hauler in 1995, and acknowledged that changes to the suspension would have had an effect. He said that he had seen documents (which were not produced in court) which described the configuration of the cabin and the position of the seating. That produced further objection, that without that material the jury could not test the evidence. Dr Jenkins said he had not been shown the report of Ms Risk but said that the report appeared to have been produced at a time when the seat was a mechanical one, which he said "might increase the jarring experience" in contrast to the air bag seat. He said a change from a mechanical to an air bag seat would be potentially significant, but not very significant.

70 It was put to him that the appellant was using an old style mechanical seat as at July 1996. The witness said he was unaware of that, but that even so he expected the vibrations would be within safe range. If Ms Risk had reported driver discomfit in 1994, after two hours of vibrations then, Dr Jenkins agreed, that was inconsistent with the vibrations he found. He agreed that the seat he inspected did not have worn padding and if there had been worn padding then there would be a higher level of vibration. If the plaintiff was using an old style seat then, Dr Jenkins said, he had not made his assessment on that assumption. He said it was possible that if objective measurements of vibration had been taken in 1995 they may have produced the same results as he had obtained, but that could not be known.

71 In my opinion, the evidence of these experts was admissible because given the state of the evidence as it emerged in the trial the jury might have concluded that the appellant had been using an ISRI 500 seat when he suffered the claimed injury,[22] and that fact and such other changes as had taken place to the hauler since that time had been identified by the witnesses as being taken into account in forming their opinions. Thus, the facts and assumptions on which their opinions were based were stated by the witnesses to the jury.

72 Once admitted into evidence, however, it was necessary that the jury be given directions as to the way in which they should assess the evidence of the experts. That would have been a difficult task, given the way the evidence emerged and the uncertainty of the evidence of the appellant and other witnesses as to what seat was fitted to the vehicle. Nonetheless, the jury ought to have been directed, at least, that the weight of the evidence depended on whether the jury accepted the assumptions on which it was based. If the expert evidence on which the respondent relied depended for its relevance on the appellant having been using an ISRI 500 seat when he was injured, but the jury concluded that he had been using a mechanical seat, then the jury ought to have been directed to consider whether the expert evidence supported the appellant's case, in that it demonstrated that the risk of injury to the plaintiff would have been lessened had an air seat been fitted.

73 Apart from the direction referred to in paragraph [65], above (which was not adequate to address these issues), the only direction given by the judge as to the expert evidence was provided during his charge. His Honour, at that time, directed the jury, in conventional terms, about the difference between an expert and a non-expert witness in giving opinion evidence based on relevant expertise. His Honour only referred to one expert (who had been called by the appellant) to illustrate the point, as follows:

"You will remember when you assess the weight which you will give to the opinions of various experts, both their qualifications, their experience and the way they handle questions in cross-examination and in that respect you might recall the questions which Mr Rose put to Mr Purdey in relation to evidence which he had given earlier.

But of course it is not the questions which are the evidence, it is Mr Purdey's answers which are important, and to the extent that he did not accept what was put to him by Mr Rose, then you discount what was put to him. To the extent that he accepted Mr Rose's propositions, then you may take that into account to the extent you think appropriate, and you may give it whatever weight you think it should get and assess Mr Purdey's evidence accordingly and, equally, you apply whatever tests you think appropriate to the credibility of the other experts. Just as all of them should be judged against the same tests, it is in the end for you to decide which of them you accept in whole or in part, and which parts of their evidence you reject.

As I said at the beginning, in essence, apart from the fact that they are entitled to give opinions where others are not, experts are no different than any other witness."

74 As I have earlier said, the judge had a very difficult task in this case. It seems clear to me that the basis on which the appellant's case was being put was, to a degree, confused and uncertain, and the questioning of the expert witnesses failed to clearly articulate the challenge which was being made to that evidence. Indeed, it is puzzling that any challenge was being made to it, at all, by counsel for the appellant.

75 Notwithstanding the difficulties, and, indeed, merely because they existed, the judge had to assist the jury by clear directions as to the manner in which they should approach the assessment of the expert evidence. In earlier rulings the judge had recognised the importance of the opinions being related to the evidence, and to the assumptions on which it was based, but in his charge he did not direct the jury in that respect. In my opinion, the complaint made in the grounds of appeal in this regard are valid.

Other grounds

76 Although a large number of other grounds of appeal were argued, it is unnecessary to consider them further, given the conclusion I have reached as to the grounds discussed above, and the outcome which should result by virtue of those grounds being upheld.

Re-trial

77 The question whether the errors identified in this case justify the setting aside of the judgment and the granting of a new trial requires careful consideration. This was a case in which the appellant's credit was in dispute. Video evidence had been tendered by the respondent to suggest that he was exaggerating his disabilities.

There was confusion in the way the case was articulated and sought to be proved. It gave the appearance of a case being formulated in the running, and it seems very likely that the appellants' counsel hoped to support their case by virtue of cross-examination of certain of the respondent's witnesses. When it was announced that the hoped-for witnesses were not to be called by the respondent very great emphasis was then placed on the fall-back position of criticising the respondent for not calling them. Some issues which were opened and on which evidence was led seem to have been abandoned by the time of the final address for the appellant. There was also uncertainty among the medical witnesses as to just what, if any, injuries the plaintiff had suffered and continued to suffer.

78 In those circumstances it requires careful consideration whether the defects in the charge were such that it may be said that by virtue of erroneous directions the plaintiff was exposed to the appreciable risk of a verdict being brought against him where it otherwise would have been in his favour[23]. Additionally, I have regard to the contention that directions were not appropriately sought by counsel so as to overcome the identified deficiencies in the directions. As to that, I consider that exception had been properly taken during and after the charge, and a point had been

reached in the trial where further objection and further requests for additional re-directions must have been futile; it was unlikely that further requests for re-directions would have been acceded to in the circumstances. In any event, a failure to seek re-direction is not fatal to the outcome of such an appeal.[24]

79 I have concluded that a substantial wrong or miscarriage had been occasioned by the mis-directions or non-directions discussed above, exposing the appellant to the appreciable danger of a verdict that the jury would not otherwise have given. In those circumstances the appellant is entitled to a new trial,[25] and that should be ordered.

80 I have had the very considerable advantage of reading in draft the reasons for judgment of Eames, J.A. and with respect I agree with his Honour's reasons and the disposition of the appeal that he proposes. I wish, however, to add the following observations concerning the trial judge's Jones v Dunkel directions.

81 In point of principle, the trial judge's direction that the jury might think that a particular witness would add nothing to the totality of the evidence, was correct as far as it went. Standing alone, it accords with the third proposition adumbrated in Cross[26] under the heading of The Rule in Jones v Dunkel: that the rule only applies where a party is required to explain or contradict something, and that what a party is required to explain or contradict depends on the issues thrown up by the pleadings and in the course of evidence.[27] An adverse inference cannot be drawn from the failure of a party to call a witness unless evidence has been given on facts requiring

an answer.[28]

82 The difficulty with the direction is in its application to the prospective witnesses Risk, Elford and Burns, because evidence was given by and on behalf of the appellant on issues of which it may fairly be supposed that Risk, Elford and Burns had knowledge which was available to the respondent rather than the appellant.[29] Consequently, by directing the jury in terms which implied that Risk, Elford and Burns would add nothing to the totality of the evidence, the judge is likely to have deprived the appellant of the benefit of a Jones v Dunkel direction to which, if properly directed, the jury may have found him entitled.

83 As Eames, J.A. has explained, the fact that counsel for the appellants addressed the jury on the inferences open to be drawn from the absence of Risk, Elford and Burns from the witness box, cannot be assumed to have overcome the deficiency in the judge's direction on the point. Indeed to the contrary, I consider that by directing in a fashion that impliedly contradicted what counsel had said about the inferences open to be drawn, the judge may not only have thrown doubt on that part of counsel's address but, in the minds of the jury, also thrown doubt upon the reliability of other parts of the address.

84 The judge's direction that there was not much point in calling witnesses to prove something five times over was in a sense also unexceptionable, as far as it went. Standing alone it accords in point of principle with the fifth proposition adumbrated in Cross[30] under the heading of the Rules in Jones v Dunkel: that the rule does not operate to require a party to give merely cumulative evidence. Cross gives as examples a case where there is no challenge made to the evidence which is called[31] and a case in which senior decision makers are called, thereby obviating the need to call more junior officers.[32]

85 The difficulty with the direction in this respect, however, is that the rule applicable to the lack of need for a party to call merely cumulative evidence does not apply where the evidence already called by that party is under challenge or unless it is otherwise plain that the additional uncalled witnesses could not have affected the complexion of the evidence already adduced. As Cox, J. put it in Packer v Cameron[33] the rule as to cumulative evidence does not provide a shield against a justifiable criticism that a party has deliberately kept less favourable witnesses from testifying. In this case the evidence given by the respondent's witnesses was under challenge in respect of matters of which it may fairly be supposed that Risk, Elford and Burns had information available to the respondent.

86 It is perhaps also worth observing in passing that the Australian authorities cited in Cross in support of the merely cumulative evidence rule are cases of trial by judge alone, and in such cases a view that the rule does not or may not apply to a particular piece of evidence represents really no more than a conclusion drawn by the judge as the trier of facts in that case as to whether or not he or she would draw the adverse inference. While with respect the reasoning expressed in support of the conclusion may prove instructive in other contexts, it is to be remembered that the question a judge asks himself or herself in such a case is different to the question of whether it would be open to a jury properly instructed to draw the adverse inference. Consequently, such authorities are to be treated with care in formulating the directions to be given to a jury before retiring to consider their verdict.

87 In any event, whereas in this case the judge should have directed the jury in terms which explained the inferences that were open to be drawn from the absence of those witnesses from the witness box, his Honour in fact directed in terms which had the potential to imply that Risk, Elford and Burns were irrelevant and thereby to suggest to the jury that there was a perfectly acceptable excuse for the absence of those persons from the witness box. In my opinion, that too had the potential to deprive the appellant of the benefit of a Jones v Dunkel direction which if properly directed the jury may have drawn, and further to cast doubt in the minds of the jury upon the reliability of the remainder of appellant's counsel's address.

88 In the course of argument before us, counsel for the respondent contended that Risk, Elford and Burns were in truth just as much available as witnesses to the appellant as to the respondent and so therefore that, even if the judge had erred in the directions he gave upon the failure of the respondent to call those persons as witnesses, the jury could not properly have drawn an inference adverse to the respondent. Counsel for the respondent submitted in support of that contention that the fact that a potential witness is an employee of a party is not of itself a sufficient basis for a Jones v Dunkel direction and that since Risk and Elford were no longer employees of the respondent at the time of trial, there was really no basis to treat them as being any more in the camp of or otherwise available to the respondent than of or to the appellant.

89 In his judgment, Eames, J.A. has explained in detail why the jury if properly instructed might well conclude that Elford would be more available as a witness to the respondent than to the appellant and thus why, if properly instructed, the jury might well draw an inference adverse to the respondent from the respondent's failure to call Elford. As it appears to me, Burns falls into a similar category, because he was the respondent's co-ordinator and maintenance manager and, in that sense at least, responsible for the condition of the hauler alleged to be causative of the appellant's injuries. While it is true that the bare fact that an absent witness is an employee of the party will not necessarily be sufficient to found the inference against that party, the higher the employee stands in the party's employment or confidence the more reason there will be for thinking that his knowledge is available to his employer rather than to any other party.[34] Relevantly, Burns as the maintenance manager might be thought to stand very highly in the respondent's employ and confidence.

90 Arguably, the position with respect to Risk is different. So far as one is able to gauge, her role was more in the nature of an expert adviser to the respondent than of a trusted servant; albeit that she was employed by the respondent. She also left the service of the respondent long before the trial. But in point of principle the sort of duties that she undertook seem to me to be analogous to those of the engineer in Earle v Castlemaine, and even though she was no longer employed by the respondent at the time of trial, it would surely be open to conclude that her sense of loyalty and duty of confidence to her former employer would make her less than willing to disclose all that she knew to the appellant and even less to give evidence on his behalf.

91 In the result I am like Eames, J.A. of the view that it is not possible to say that the misdirections upon the application of the rule in Jones v Dunkel did not have or could not have had an effect on the verdict.

[1] This appeal had been adjourned on two previous occasions at the request of the legal advisers to the appellant on the basis that it was not adequately prepared for hearing.

[2] Between August 1996 and March 1997 (and possibly until July 1998, when he left the respondent's employment) the appellant was on restricted duties, and was not driving the hauler.

[3] In its defence the respondent pleaded that by his order the judge who granted leave to commence proceedings had confined the appellant to a claim for injury caused on 21 September 1995. The trial did not, however, proceed on the basis that the appellant was so constrained.

[4] There was evidence that ISRI air seats were available in 1993, but were not chosen for the hauler.

[5] Counsel for the respondent told us that they were not as confident as their opponents as to that estimate, and that they had said that the trial could take three or four weeks.

[6] Because it was a circuit court the judge did not sit five full days per week, but sat half days on Mondays and Fridays, because of travelling considerations for counsel and the judge and his staff, as well as for witnesses.

[7] [1959] HCA 8; (1959) 101 C.L.R. 298.

[8] Jones v. Dunkel, at 308, 312, 320-321.

[9] [1975] VicRp 89; [1975] V.R. 916, at 929, per Newton and Norris, JJ.

[10] [1974] VicRp 86; [1974] V.R. 722, at 724, per Lush, J.

[11] One ground of appeal challenged his Honour's directions to the jury as to whether they ought conclude that by its response to the incident report the plaintiff's injury had been admitted by the respondent.

[12] Burns, too, had ceased employment with the respondent by the time of trial.

[13] [1997] 1 V.R. 125, at 143, per Tadgell, J.A., Phillips, J.A. agreeing.

[14] Evidence had been led that Ms Risk was trained in ergonomics, and that her report addressed these issues.

[15] Burke v. LFOT Pty. Ltd. [2002] HCA 17; (2002) 209 C.L.R. 282 at 330 [134] per Callinan, J.

[16] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 446; Midalco Pty. Ltd. v. Rabenalt [1989] VicRp 45; [1989] V.R. 461 at 474.

[17] [2001] NSWCA 305; [2001] 52 N.S.W.L.R. 705 at 743 [85].

[18] [1985] HCA 58; (1985) 59 A.L.J.R. 844.

[19] T 1392ff.

[20] Exhibit 10 was a bundle of vehicle check sheets for hauler No.4, and an entry for 8 July 1996 recorded the appellant then stating that it was fitted with an "old style seat, little shock absorption, lack of adjustment, rough and bumpy". The plaintiff said (T 476) that that did not help him say when the old style seats were replaced because after the new seats had been installed it was likely that if they had become broken then an old style seat might have been substituted until replacement air seats were obtained. As to whether that was the case on this date he said records ought to show, but he did not know.

[21] T 1458ff.

[22] Two witnesses, Mr Punton and Mr Shaw, said that the air seats had been installed in late 1994.

[23] Karatzidis v. Victorian Railways Commissioners [1971] VicRp 43; [1971] V.R. 360, at 366; Rukavina v. Incorporated Nominal Defendant [1992] VicRp 49; [1992] 1 V.R. 677, at 682.

[24] Rukavina v. Incorporated Nominal Defendant, at 682_; General Motors Holden's Pty. Ltd. v. Moularas_ [1964] HCA 39; (1964) 111 C.L.R. 234, at 242-3; Martin v. Hendersons Industries Pty. Ltd. [2004] VSCA 19, at [21].

[25] Holford v. Melbourne Tramways and Omnibus Co. Ltd. [1909] VicLawRp 89; [1909] V.L.R. 497, at 526; Rukavina v. Incorporated Nominal Defendant, at 682; Balenzuela v. De Gail [1959] HCA 1; (1959) 101 C.L.R. 226, at 236.

[26] Cross on Evidence, Aust. Ed. at [1215].

[27] Nuhic v Rail and Road Excavations [1972] 1 N.S.W.L.R. 204 at 221.

[28] Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 C.L.R. 121 at 142 [51].

[29] See and compare Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] V.R. 722 at 734, per Lush, J.

[30] At [1215].

[31] Cubillo v The Commonwealth [2000] FCA 1084; (2000) 103 F.C.R. 1 at 120 [ 360].

[32] Apand Pty Ltd v Kettle Chip Co Pty Ltd [1994] FCA 1370; (1994) 52 F.C.R. 474 at 490.

[33] (1989) 54 S.A.S.R. 246 at 253; see also Cubillo v The Commonwealth 103 F.C.R. at 120 [360].

[34] Earle v Castlemaine District Hospital [1974] V.R. at 734.