REASONS FOR JUDGMENT } i Judgment delivered at...... BRISBANE: W.-M. Houston, Gort. Print, Med. Medneaday,..24th. June..1959 LAWLER a Mz By HORNTBROOK (PRY. ) LIMITED gapgn Appeal dismissed with costs. u. R. BROOK THE COURT z comams DIXON ¢.3. WIRDEYER J. EAMLER M,_R. HOMNTHROOK (PEY.) LIMITED This is an appeal from a judguent of the Fall Court of the Supreme Court of Queensland refusing a new trial of an action for personal injuries which resulted in a werdict for the defendant. fhe accident out of whieh the action arese eceurred on llth October 1955, and the trial took place three years ister. The plaintiff Lavler was employed as a builder's labourer in connexion vith the construction of a building, the Gibson Island power house, vhich had gone some distance towards erection. Lawler was employed at the time of the accident on a floor which was called the forced draught floor, and innediately above him vas the induced draught floor. These floors had been erected and were composed ef reinforced conerete made in a usual manner with concrete combined with steel mesh. At the time vhen he vas at work it had beccue necessary to make sone holes in the concrete for the yarpose of putting in cables, and there was a man named Suith at work making these holes in the induced draught floor above. Lavier himself appears to have been doing somewhat similar work below on the forced draught floor. The injuries which he sustained were injuries to his head. His case vas that Smith in the course of his work caused the fall of a pisce of concrete which struck him on the head. There vas no direct evidence of this, neither by the plaintire himself nor by anybody else. His ease depended upon ecircus- stantial evidence, that is to say upon the inference fron circumstances and the degree of probability supporting the inference. The alternative theory put forward by the defendant, who disclained any obligation to sceount for the accident at all, vas that the plaintiff hed struck his head against some 2. angle iron which existed at or near the place vhere he had fallen. It appears that at or near that place e stairway led up and at the top of the stairs there vera some cross braces or struts consisting of angle irons, some & ft. to eb ft., there rising to mest at a point above; Lavler himself was about 5'8" in height. According to statements he made shortly after the accident the plaintiff had been at work marking places on the flecr at which the concrete was to be eat or pierced, and he had then taken « broem to svesp up debris. He was struck on the head by something end his knees gave way, and he had xo further menory after that. : Saith in his tvo statements, one made in October 1955 and the other made in August of the following year, gave am account of what he was doing and said he kad mot dropped anything. He vas doing the vork with a jackhammer, that is to say, with « compressed air heamer, and, having regard to the sise of the holos and the mesh of the wire mat it vas not likely that any pieces of eonerete would fall through of such a size or nature as to inflict the injury. At the trial, which extended over sone days, the learned judge left questions to the jury. Probably very mach to the plaintiff's surprise, the jury answered the first question in the negative. The first question was whether the Plaintiff sustained his injuries by being strack on the head _ by a piece of concrete. The remaining questions, if that negative answer were correct, then became immaterial. However, the jury did answer the question which related to the assess- ment of damages, somewhat unnecessarily perhaps, and not very enevaregingly, bat nevertheless there was an appeal te the Fall Court. The appeal to the Full Court was based upon two grounds, fhe first was that the verdict ought not to have eee enn ett rei ae 3. been arrived at. 1 state that in a somewhat untechnical fora because I think the case was argued rather es a matter eof fact. But it was necessary for the plaintiff to shew in order to sustain the ground that the circumstantial evidence was so strong that for the jury to fail, es they did fail, to draw the inference that the accident arose from the plaintiff's being struck on the head by a pleee of concrete liderated by Smith was perverse. A high degrees of unreason- ableness must be established on an appeal by a plaintiff who having the burden of proof upon him seeks to discharge it by reliance upon circumstantial evidence, if the jury has refused to be satisfied on the balance of probabilities that the inference is correct. I do not propose to go into the eireunstances which might or sight not justify the jury's view: they were canvassed in equal degree by both sides. The alternative theories of his having been struck by falling conerete and of his having suddenly risen from some posture so as to strike his head on the angle iron were fully discussed, and the general circumstances of the work on which both sen were engaged vere thoroughly examined. It is enough to say that om the facts of this case ve are quite satisfied that it vas an impossible burden which the appellant undertook to discharge when he sought to have set eside the jury's answer and verdict on a pure question of fact on the ground that the evidence vas so decisive that their failure to find in his favour en the facts was perverse. The second ground on which the appellant rested his appeal was that he had discovered fresh evidence. ie appears to have been moved by the verdict ageinst him, which was returned on 10th October 1958, to make farther investi- gations. In the course of them or as a result of this determination, on 20th October and on 8th, 10th, llth, 12th and 13th Novenber he had an advertisement put in the personal 4. column of the daily paper, "Would any person vho witnessed the secident on the F.D." (that is the forced draught floor) "at Gibson Island power house on 11th October 1955, phone" a certain momber? A Hr. Dingwall responded by telephone who was prepared, according to his affidavit, to give evidence that he witnessed the fall of conerete upon the plaintiff on that occasion. I need not traverse the evidence deposed to in his affidavit. &xperience in courts of law is a sufficient ground for entertaining apprehension about the results of a newspaper advertisement calling for evidence. But, of course, the veracity of Mr. Dingwall would have been a question for the Full Court to pass upon in a preliminary way if their Honours had thought that the other conditions had been fulfilied which are requisite to entitle a defeated litigant to a new trial on the ground of the discovery of fresh evidence. Those conditions are strict, and rightly so. There ean be nothing more dangerous than allowing judicial proceedings which have been solemnly conducted after full notice to the parties end with adequate opportunity of sdvaneing all the necessary proofs to be ripped up because afterwards it is found that some further evidence could be adduced. One condition whieh is strictly insisted upon is that the defeated party who seeks to do this shall shew that he took every reasonable care to exhaust the possibilities of obtaining what testimony was available before he case to trial. The Full Court om the material before them vere not satisfied that this occurred, That does not mean that the preparation of the case was negligently conducted, but that strict proof is required that the fullest care was taken, the fullest examination mado of the resources whieh were available, that «11 the threads that might lead to evidence bearing upon the case had been folloved to their conclusion. It is quite clear to us that the Full Court was right in saying that thet condition was not 5. fulfilled and that this was not a case on which a verdict should be set aside simply because, in the circumstaness I have stated, Mr. Dingwall had come forward and sworn an affidavit that he was prepared to give further testiaony which touched the issue closely. We agree entirely vith the Full Court and think that the appeal should be disuissed. The appeal will be dismissed with costs.