AHMET v DULUX AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and CLARKE JJA 30 April 1990, 7 June 1990 [1990] NSWCA 3 JURY — undisputed evidence that plaintiff slipped and fell while manoeuvring trolley in area where floor slippery from deposits of paint and thinners — failure to find causal connection between slip and condition of floor unreasonable — general new trial ordered. Samuels JA I have had the advantage of reading in draft the judgment prepared by Clarke JA in which the facts are set out. I agree with his conclusion that the jury's findings in respect of the second incident are not open to challenge. To my mind, this is so essentially because the account which the appellant gave in the report of injury form suggests injury caused by a fall precipitated by the sudden onset of sharp pain in the back, rather than by a slip. Accordingly it was open to the jury to conclude that he had not established that the injury was caused by the slippery condition of the floor in the respondent's premises. Consideration of the first incident in August 1974 must be predicated upon the fact that it could not reasonably have been disputed that the floor in the area where the appellant says he fell was slippery by reason of deposits of paint and the presence of the thinners used to remove them. The appellant was pulling a trolley, and this was not in dispute. Although the respondent did not expressly admit that the appellant sustained an injury on this day (as it did in respect of the second occurrence), there can be no reasonable doubt that he did, that he went to the first aid station, subsequently consulted Dr Vickers, and spent some time away from work on compensation. Accordingly, as Clarke JA points out, the question was whether there was the necessary causal connection between the dangerous state of the floor and the appellant's injury. Putting the matter in the framework of the actual forensic contest it was whether his slip was caused by a dangerous condition the consequence of the respondent's negligence or breach of statutory duty. The appellant 'made' a report of injury about this incident. I use inverted commas because he was wholly illiterate in English. Thus somebody else must have filled out the form; but, as he admitted, at his dictation. He signed the form. In answer to the question: "Where did injury occur" the answer was: "At work - slipped on floor". In answer to the question: "How did injury occur?" the answer was: "I was trying to put pot under the mill and slipped on the floor", and the injuries sustained are said to be "bruised back". He was cross-examined about the contents of this document. After the cross-examiner had established that he had told his amanuensis how he had hurt himself, and that he had explained what appears in answer to the second of the questions set out above, he was asked:set out above, he was asked: "Q. You made no mention about there being anything on the floor that caused you to slip, did you? A. Yes." 2 UNREPORTED JUDGMENTS I take it that the answer was intended to express agreement with the question. From this cross-examination it appears that it was never suggested that the appellant had not slipped or that he had not hurt himself. The only attack on his credibility or, I suppose, the only challenge made to his evidentiary account of the circumstances of the accident and, in particular, to the assertion that it was caused by the presence on the floor of a slippery and therefore dangerous substance, was counsel's reference to the fact that the report of injury form did not expressly say that he had slipped in paint or in any other substance. It is dubious whether even this challenge was mounted. For seemingly "willing to wound, and yet afraid to strike', the cross-examiner did not press it home to the extent of suggesting that there was indeed no slippery substance on the floor. Nor was this cross-examination put in the context of an admission that the appellant, knowing the purpose of the report of injury form, had ensured that it contained all he believed relevant to his accident. With all respect to counsel, I would have thought that this was scarcely a very potent attack on the appellant's case. It diminishes in strength when one takes account of the fact that it is beyond question that there were slippery substances on the floor, and that this was the ordinary condition of the area. At the trial the respondent appears to have adopted the forensic scatter-gun approach commonly regarded as an effective means of attracting the superior fact-finding abilities of civil juries. It is, of course, possible to gather what counsel said only from the summing-up which is, however, eminently clear and thorough, if I may respectfully say so, and no doubt provides a dependable index. Campbell J (all this applies only to the first incident) referred to the report of injury form and said: "Then Mr Dodd took him through a number of questions off the form which you remember founded his submission to you that there were a lot of accurate (sic) matters on that form and he was asked: 'Q. Did you tell them how you hurt yourself? A. Yes. Q. Did you say 'I was trying to put the pot under the mill and slipped on the floor'? A. Yes. Q. You made no mention about their being anything on the floor that caused you to slip, did you? A. Yes.'" I have already dealt with the last question and answer. At first I thought that the word "accurate" was a misprint for "inaccurate". But, on reflection, and having looked carefully at other portions of the summing-up and at the transcript, it seems that counsel was seeking to attribute substance to the absence of any complaint of slippery material on the floor by emphasising that everything which was recorded was true. There are not, of course, a lot of inaccurate matters in the form. So far as it goes, it seems to be entirely correct in all particulars. Then, a little later on, the learned judge deals in more detail with the way in which counsel addressed. He said: "Mr Dodd took you to the inconsistent statements in the document. By that I mean to the account in the two statements which he put to you were different to the account the plaintiff has given in evidence. He pointed out to you that the other parts of the statements appeared to be correct and submitted to you: Why would what appeared in the reports of injury as to what actually happened be wrong if the other bits were in fact right?" URJ AHMET v DULUX AUSTRALIA LIMITED (Samuels JA) 3 The learned judge went on to say: "He [that is Mr Dodd] put to you that at most the plaintiff slipped on the floor on the first occasion without having slipped on any particularly slippery material". And then he reminded the jury that Mr Dodd had attacked the "credibility of the plaintiff generally" and wound up this portion of the summing-up by saying: "Tn short, Mr Dodd put to you that you would not be satisfied either that the plaintiff had suffered an injury in the way he says on the first occasion, or in the way he says on the second, although he expressly conceded he had suffered some sort of injury on the second, or that you would not be satisfied that any injury was caused by the negligence of the defendant or by a breach of the statutory duties upon which the plaintiff has relied." It should be pointed out, although I do not think that it seems to have been mentioned at the trial - but perhaps it was taken as understood - that the first report of injury form tendered by counsel for the respondent was evidence of the truth of the assertions it contained. It went beyond the type of document tendered as an admission which in addition contains exculpatory or self-serving statements. It was tendered as a whole, the support which it was said to lend to the respondent's case being that it omitted a material ingredient of the circumstances in which the injury occurred. It was never suggested to the appellant that any part of it was false; but merely that it did not include all the particulars which it might have been expected to cover. Accordingly, as I have said, it was evidence, not merely of the fact that three days or so after the accident the appellant had asserted that he had slipped, but of the truth of the assertion: see Cole v Evans (Court of Appeal, 2 May 1975, unreported), particularly at 3 per Glass JA and the cases there cited. I do not consider that any question concerning the rule in Browne v Dunn (1894) 6 R67 arises. The respondent was certainly entitled to put to the jury that the appellant had not mentioned in the report of injury form that he had slipped on some slippery substance. I would have thought that this was a submission of remarkable poverty. I am doubtful that he was entitled to suggest that the appellant had not slipped in that way. But the respondent was of course relying, as the summing-up indicates, upon flaws in the appellant's credit developed from the medical evidence, it being a trial in which the witnesses consisted of the appellant, his daughter, two fellow workers, one expert and twelve doctors. It was also probably open to the respondent to put to the jury that they should not be satisfied that the appellant had suffered an injury "in the way he says on the first occasion", that being the way the learned judge put it, because this is merely another way of building upon such assistance as the report of injury form provided. It is debatable whether the respondent could properly have put to the jury that they ought to reject the appellant's evidence that he had slipped. This challenge was never directly put; or even indirectly, bearing in mind that it was the respondent who had itself tendered evidence that that was the way in which the appellant had fallen and injured himself. But this is all rather an arid argument, in my view, because no application was made at the trial to Campbell J to intervene or to direct the jury that it was not open to them to consider the possibility that the appellant had not slipped. Accordingly, the matter comes down to this. There was evidence, overwhelmingly one way, which established that on the first occasion the appellant had slipped, had thereby fallen to the floor, and had sustained injury; and that this had occurred in an area where the floor was slippery by reason of 4 UNREPORTED JUDGMENTS the thinners used to remove the substantial quantities of paint regularly deposited there by the respondent's manufacturing process. In those circumstances it seems to me quite unreasonable for a jury to reject the inference that it was the slippery nature of the floor which had caused the appellant to slip. When one adds to the factual equation the fact that the appellant at the time was manoeuvring a trolley bearing a not inconsiderable weight, the connection becomes overwhelming; but, to be more accurate, the failure to make it was unreasonable. For those reasons I would set aside the judgment below and order a general new trial, the costs of the first trial to abide the exercise of discretion of the judge hearing the new trial. The respondent must pay the appellant's costs of the appeal. Priestley JA I agree with Samuels JA Although this means that I differ from Clarke JA's eventual conclusion on the August 1974 incident, I nevertheless agree with much of what he says on that aspect of the case. In particular I agree with Clarke JA's reasons for rejecting the argument that because of what was submitted to be breach of one of the rules in Browne v Dunn (1894) 6 R67, the jury were bound, (which seems to me to mean bound as a matter of law), to accept the plaintiff's version of the first incident. My forming a different opinion from Clarke JA is based on the view, that as a matter of fact, because of the way the trial was conducted, and because in my opinion the issues before the jury were those described by Samuels JA, there was only one conclusion reasonably open to the jury, and their failure to reach it can only have been for some impermissible reason. Clarke JA The appellant sued the respondent claiming damages in respect of twoinjuries which he claimed he suffered during the course of his employment with the respondent. In each instance he claimed that he had slipped on a wet and dangerous floor and in his statement of claim he contended that the respondent had breached its common law duty of care and a number of statutory obligations. The respondent denied any liability to the appellant. The trial was heard before Campbell J and a jury between 12 and 15 September 1989 and at the conclusion the jury found against the appellant in respect of both incidents. Accordingly, Campbell J directed the entry of judgment for the defendant. The appellant filed a notice of appeal raising a number of separate grounds but during the hearing of the appeal advanced oral argument in support only of one ground in respect of both incidents, viz that the verdict of the jury was against the weight of evidence. The appellant gave evidence that he commenced his employment with the respondent in January 1970 and remained in that employment until 22 December 1975. He was employed as a pot washer to clean steel containers used to hold paint after it had been milled, that is, mixed with thinners. The containers weighed between 125 and 175 kilograms. He said that on 30 August 1974 he was pulling a trolley with one of the steel containers upon it in the vicinity of one of the paint mills when he slipped on the wet floor and fell. In this fall he claimed to have injured his back, elbow and head. It was the appellant's case that the floor was always wet and slippery. In the paint milling operation paint fell regularly onto the floor and thinners were used in conjunction with water to keep the floor, as far as possible, free of paint. He said that on this occasion the floor was particularly slippery because Peter the cleaner was mopping it with paint thinners. URJ AHMET v DULUX AUSTRALIA LIMITED (Clarke JA) 5 No witnesses were called to corroborate his actual fall. Mr Collins said that he saw the plaintiff on the ground at the time in question and a Mr Badman indicated that on one occasion (which was probably the relevant one) when the plaintiff had been cleaning pots he had returned in a distressed condition. On the other hand there was evidence, which was not contradicted, to the effect that the floor in the area in which the appellant alleged he had slipped was always slippery. The second accident occurred on 22 December 1975. In this incident the appellant alleged that he was tilting one of the pots, that is one of the steel containers, in order to place a wedge under it so that the pot would drain when his foot slipped on the floor and he fell and suffered a further back injury. Again there was no corroboration of his slipping but there was evidence that the floor in this location was regularly wet and slippery and this evidence was not contradicted. In particular a Mr Blue said the area was always wet with solvent and slippery and it was a common occurrence to see people slipping over. He also saw the appellant sitting down, apparently after this incident, with his hand on his back. The appellant also called uncontradicted evidence to establish that there were reasonably practicable means of eliminating or reducing the risk of persons slipping on the floor and it should be accepted that there was no issue between the parties on this question. The respondent called no evidence on the issue of liability. Counsel for the respondent called a number of medical witnesses who were all concerned with the issue of damages. No witness was called, either in the appellant's or the respondent's case, to contradict the appellant's version of the incidents nor was the evidence as to the slippery and dangerous nature of the floor, contradicted. On the other hand the defendant did not admit liability. Its counsel cross-examined the appellant on the contents of two Report of Injury Forms, to which I will return, and submitted to the jury that it ought not accept the appellant as a witness of truth and that, accordingly, it ought not be satisfied that the appellant had established more probably than not that he slipped on each occasion as he alleged. The principles which should guide the court are expressed with clarity in the judgment of Davidson J in Hocking v Bell, 43 SR 154: "Tt is equally clear, however, that when the issues have properly been left to the jury the court on appeal may order a new trial if the jury should reach a conclusion, which is against the weight of evidence, in the sense that the evidence in its totality preponderates so strongly in favour of the unsuccessful party that the jury, in finding for the other party, must, in the opinion of the court, have either wilfully disregarded the evidence or failed to understand or appreciate it. In other words it is fatal to the verdict if it is one which reasonable men properly instructed might not find." In an appeal from a subsequent decision of the Full Court of the Supreme Court in the same case Latham CJ pointed out: "Tn a trial by jury the jury is the constitutional tribunal for deciding issues of fact. As Lord Wright said in Mechanical and General Inventions Co Ltd v Austin: 'The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury'. Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury." 6 UNREPORTED JUDGMENTS I would add to those quotations a reference to another statement by Lord Wright in Mechanical and General Inventions (1935 AC 346, at 375) to the effect that the question is not whether the verdict appears to the appellate court to be right but "whether it is such as to show that the jury have failed to perform their duty" (see also Bell v Thompson, 34 SR 431, per Jordan CJ, at 437). Earlier I indicated that the jury found against the appellant in respect of both incidents. What in fact occurred was that the jury was required to answer six questions in respect of each incident together with a final question concerning the quantum of damages. The six questions were identical in each case: (a) Did the Plaintiff sustain injury caused by the negligence of the Defendant? (b) Did the Plaintiff sustain injury caused by a breach of the statutory obligation of the Defendant to grade and drain the floor so that the thinners could easily run off? (c) Did the Plaintiff sustain injury caused by a breach of the statutory obligation of the Defendant to provide a platform, mat or other dry standing place? (d) Did the plaintiff sustain injury caused by a breach of the statutory obligation of the Defendant to keep the floor dry? (e) Did the Plaintiff sustain injury caused by a breach of the statutory obligation of the Defendant to maintain the floor in good order and condition? (f) Did the Plaintiff sustain injury caused by a breach of the statutory obligation of the Defendant to properly maintain the floor? The jury answered "No" to all twelve questions on liability. The uncontradicted evidence concerning the slippery and dangerous nature of the floor was overwhelming and I think it must be accepted that the jury, acting reasonably, were bound to conclude that the area of floor on which the plaintiff alleged he had suffered his injury on each occasion was in the condition described by the appellant and his witnesses. In addition, in respect of the second incident at least, the respondent conceded that the appellant had sustained an injury. Although no such concession was made in respect of the first incident the appellant claimed compensation in respect of injuries which he asserted he had suffered on that occasion and was paid that compensation. I regard that fact in the particular circumstances of this case, and in particular his immediate attendance at the first aid area, his consultation with Dr Vickers and the time taken off work as indicating that the parties were not seriously at issue on the question whether the appellant suffered injury on the first occasion. Accordingly, I approach the question which confronts this court upon the basis that it would have been unreasonable for the jury to reject the evidence to the effect that the appellant sustained an injury on each of the days in question. Although in theory a conclusion that the respondent was negligent or in breach of a statutory duty would not necessarily follow from a finding that the floor was slippery and dangerous the evidence in this case concerning earlier falls and the dangerous condition of the flooring left open, in my opinion, only one reasonable conclusion and that is that the respondent had been negligent and in breach of some, at least, of the statutory duties pleaded. There remains, however, one area in which the evidence in favour of the appellant's case did not have the overwhelming force which it had in the other respects which I have enumerated. That area concerned the causal link between the breach of duty and the injury. In essence the question which arises is: Was the jury entitled reasonably to reject the appellant's evidence of the manner in which he sustained his injury? I put the question in this way for if the jury accepted that URJ AHMET v DULUX AUSTRALIA LIMITED (Clarke JA) 7 he slipped as he alleged then a finding in favour of the existence of the causal link was almost inevitable. But the question remains whether the jury, acting reasonably, was bound to find that the appellant had slipped as he alleged. In the summing-up the trial judge, having given the jury appropriate directions concerning their right to accept or reject the evidence of a witness (which included an instruction not to reject the evidence of a witness capriciously but only for good reason) in whole or in part and the consequences which flowed from a failure of a party to call a witness who could have been expected to give relevant evidence on a matter, reminded the members of the jury of the evidence which the appellant had given in evidence in chief and in cross-examination concerning both incidents. He then directed attention to the defence case on the relevant issue saying: "He (counsel for the respondent) attacked the credibility of the plaintiff generally and you should remember that whilst I am talking to make it sensible for understanding about liability and damages separately that credit that you give to the various witnesses, of course, can apply to both areas. In short, Mr Dodd put to you that you would not be satisfied either that the plaintiff had suffered an injury in the way he says on the first occasion, or in the way he says on the second, although he expressly conceded he had suffered some sort of injury on the second, or that you would not be satisfied that any injury was caused by the negligence of the defendant or by a breach of the statutory duties upon which the plaintiff has relied." The trial judge also reminded the jury that counsel for the respondent had addressed them upon alleged inconsistencies between statements that the appellant furnished in respect of each of the accidents and the version which he had given in court during the hearing. Different considerations arise in respect of each of the incidents, and while it is necessary to have regard to the case as a whole in determining whether the jury, acting reasonably was entitled to bring in the verdicts which it did, it is convenient to deal initially with the second incident. I do this primarily because the question which arises in respect of this incident is less complicated than that which arises in respect of the first incident. The appellant's evidence as to the manner in which he fell was not, as I have pointed out, corroborated. No eye witness was called to say that he had seen the appellant slip or fall. Nor was evidence called of the existence of any marks on the floor which were consistent with a slip by the appellant. The claim for damages in respect of this incident rested heavily on the appellant's uncorroborated evidence. In cross-examination he was confronted with a statement which he had signed on 30 December 1975 (eight days after the accident) in which the following words were written under the heading "How did injury occur?": "T pushed the pot and suddenly I felt sharp pains on my back and on my right leg, my feet could not keep me on the ground so I fell on my back. Philip saw me and he ran and he tried to help me get up but he could not manage so he called the boss and they brought me down from where I work on the wheelchair to the first aid." The appellant, who gave evidence through an interpreter and could not read and write in the English language, was asked the following questions: "Q. Did they ask you how the injury occurred and did you tell them? A. Naturally I told them. Q. Did you say, 'I pushed the pot and suddenly I felt sharp pains on my back and on my right leg'? A. Naturally, yes. 8 UNREPORTED JUDGMENTS Q. Did you continue to say, 'My feet couldn't keep me on the ground so I fell on my back'? A. No, I slipped and fell down. Q. Do you remember, do you, that you said nothing when filling in that form to the person who translated for you about slipping? A. I didn't say anything, that's all. Q. You said nothing about slipping, did you, when you were telling the person what answers to put on the form that you signed? A. How can? I slipped and fell, how I didn't state that? Whoever fills that paper, maybe, he did it for his own benefit. Q. Do you remember having this paper filled in for you and having signed it whilst you were in Western Suburbs Hospital? A. No. Q. If you filled it in on 30 December 1975, eight days after you say you hurt yourself, how you hurt yourself would be very fresh in your mind, wouldn't it? A. I don't know how that person who filled it, filled it. I don't know how to speak English, nor can I speak English, nor can I write. If he filled it that was is it my fault? Is it my mistake?" The failure of the appellant to mention the fact that he slipped in the report of injury signed on 30 December 1975 and the cross-examination upon the differences between the contents of that document and the appellant's oral evidence constituted the major grounds upon which counsel for the respondent asked the jury to disbelieve the appellant and to reject his evidence of the manner in which he had sustained injury on the second occasion. The alternative hypothesis which was suggested was that the appellant merely strained his back while endeavouring to tilt the container. Although difficulties arise when a tribunal of fact is asked to consider differences between oral evidence given through an interpreter and a document written in English but signed by a witness who does not understand that language the jury were given appropriate instruction to allow for that and, given the advantaged position in which they were placed, I fail to see how it can be said that their verdict, which reflected a rejection of the appellant's evidence, could be held to be unreasonable or to indicate a failure on the part of the jury to perform their duty. In my opinion this challenge, looked at in isolation, is without substance and should be rejected. I now turn to consider the first incident. Counsel for the appellant made two fundamental submissions. In the first place he submitted that as it must be accepted that the appellant suffered an injury on the day in question and as the evidence of the slippery condition of the floor was so overwhelming the jury were bound, acting reasonably, to conclude that there was a causal link between the injury and the dangerous nature of the floor. The submission, in my opinion, overlooks the need for a plaintiff to prove his case. No doubt the evidence concerning the slippery nature of the floor was supportive of the appellant's assertion that he had slipped on that floor but it remained for the appellant to persuade the tribunal of fact that his version of the incident should be accepted. The second submission has more substance. Counsel for the appellant submitted that as counsel for the defendant had not directly challenged the appellant on his version of the first incident and, as there was no contradictory evidence, the jury were bound to accept that version. The principle of law upon which this submission was based is that which appears in Browne v Dunn, (1894) 6 R 67 (HL). As Glass JA said in Seymour v Australian Broadcasting Commission, (New South Wales Court of Appeal, 3 June 1977, unreported) the principle enunciated in that case is "a rule of URJ AHMET v DULUX AUSTRALIA LIMITED (Clarke JA) 9 professional practice and as well a rule of conduct which is essential to fair play at the trial and fair dealing with witnesses. As Lord Herschell expressed it at 71 "It will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted'." The rule is well established and infractions which have occurred in the past have been dealt with by the courts in various ways. One consequence which may attend a breach of the rule is that a tribunal of fact, acting reasonably, is bound to act upon the basis that the unchallenged evidence is to be accepted. This occurred in, for instance, Precision Plastics Pty Ltd v Demir, 132 CLR 362. In that case Gibbs J (with whom Stephen J agreed) concluded (at 371) that the jury, acting reasonably, were bound to accept the uncontradicted and unchallenged evidence of the plaintiff that she had a present intention of working until she reached the age of 55. His Honour reached that conclusion primarily because the evidence to that effect was not inherently incredible. The decision stands as one of high authority exemplifying the manner in which in given circumstances the rule in Browne works. But I do not accept that it lays down a rule of law that a judge or jury is bound to accept any evidence which is not challenged by cross-examination and in this respect I agree with what Samuels JA said in Ellis v Wallsend District Hospital, (1989) 17 NSWLR 553, at 586. The rule, which is essentially one of procedural fairness, has been considered since Demir by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, (1983) 1 NSWLR | at 18, and this Court in Seymour, Ellis and most recently Payless Superbarn (NSW) Pty Ltd v O'Gara, (NSW Court of Appeal, 28 May 1990, unreported). In the lastmentioned case I referred to the helpful discussion of the rule to be found in Seymour and I set out a passage from the judgment of Mahoney JA in which his Honour pointed out that Browne provides an illustration of the principle that a trial must be conducted fairly and so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the two parties, the truth lies. His Honour then went on to say: "Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. (at page 22) But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, eg, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption: ibid, at 71, per Lord Herschell, LC. It may be that the witness's evidence is fanciful or such as not to warrant cross-examination: ibid, at 79, per Lord Morris; or that cross-examination is foregone for other adequate reasons, eg, delicacy; see Phipson on Evidence, (12th ed) para 1543; Halsbury's Laws of England (4th ed) vol 17, para 278. Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell, supra, at 71. The nature of the 10 UNREPORTED JUDGMENTS defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter." In O'Gara I took the view, which had been expressed in Seymour, that where a breach of the rule has been shown it is for the trial judge to determine what procedures should be adopted to ensure that the trial does not miscarry. For this reason an appellate court, when required to examine the course of a trial in the context of a submission that there has been a breach of the rule, will treat the opinion of the trial judge with the greatest respect. He is the umpire responsible for ensuring as far as he can that the trial is conducted in a fair manner. As Mahoney JA pointed out in Seymour the question whether a situation of unfairness has been created by a breach of the rule is primarily one of impression and, obviously enough, the trial judge is in the best position to assess this. Again the failure of one party to complain of a breach of the rule at the trial may have a bearing on the question whether his client was disadvantaged or an infraction of the rule occurred. The position is similar to that which occurs when counsel for an accused fails to take objection to the judge's summing-up in a criminal trial (R v Smyth, 73 WN 539). The failure, although not fatal to an appeal based on a breach of the rule, is an indication that counsel who conducted the trial did not appreciate that unfairness had occurred. That failure may also provide a ground on which, even though an infraction is found to have occurred, the court might refuse a new trial in the exercise of its discretion. In this case it is said that, as the respondent's counsel had not challenged the appellant by, for instance, suggesting that the incident did not occur in the way alleged by the appellant, the rule had been breached and it was not open to the jury, acting reasonably, to decline to accept the appellant's version of the incident. The submission must be evaluated without the assistance of the trial judge's opinion. That is because counsel for the appellant did not suggest at the trial that the rule had been breached in respect of the 1974 incident. He did submit that no issue should be left to the jury that the fall on the second occasion was other than the result of a slipping but that does not assist him on his present submission. Upon an examination of the course of the trial the first point to observe is that in the statement of defence the respondent denied the appellant's allegations as to the manner in which he sustained injury in 1974 as they appeared in his statement of claim. The pleadings themselves indicated that his version of the accident was disputed. While it is true that the respondent's counsel did not directly challenge the appellant in the manner I indicated he did cross-examine him on the Report of Injury Form asking the following questions and receiving the answers appearing opposite the questions: "Q. Did you tell them how you hurt yourself? A. Yes. Q. Did you say 'I was trying to put the pot under the mill and slipped on the floor'? A. Yes. Q. You made no mention about there being anything on the floor that caused you to slip, did you? A. Yes." Although I would not describe this challenge as a particularly robust one, nonetheless, it seems to me that the only purpose of the third question was to invite disbelief in the appellant's version. Having regard to the pleadings, that cross-examination, the general attack on the appellant's credibility, which included the challenge to his version of the second occurrence, and the failure of URJ AHMET v DULUX AUSTRALIA LIMITED (Clarke JA) 11 counsel for the appellant to suggest at the trial that there had been any breach of the rule I do not think his present submission can be sustained. The absence of a complaint that unfairness had arisen reinforces the view, which I have formed upon a consideration of the pleadings and the cross-examination generally, that it must have been clear to counsel for the appellant that his client's evidence as to the manner in which each accident occurred was very much in issue. Upon that basis I do not see that any unfairness occurred during the conduct of the trial, nor do I conclude that the jury, acting reasonably, could not reject the appellant's account of the way in which the first accident happened. In my opinion the importance of the rule in Browne in the context of the administration of justice in this state cannot be exaggerated. It is absolutely essential for fairplay at trials that counsel put opposing parties on notice of the matters in issue. It is quite wrong for one party to sit by and allow controversial evidence to go unchallenged and then seek to rebut it with contradictory evidence. But equally appellate courts should be astute to analyse carefully the submissions of an appellant who, not having raised the suggestion of breach at the trial, complains that his opposing counsel failed to adhere to the principles of fairplay. To accede to the appellant's submissions in this case would be equivalent to saying that if the respondent's counsel had perfunctorily put to the appellant: "You simply lost your balance didn't you?" or "I suggest you didn't slip, what do you say about that?" counsel would have performed his duty and the jury would have been entitled, acting reasonably, to reject the appellant's evidence, whereas in the absence of that challenge it was not so entitled. I cannot accept that this is so. In many cases questions of that nature only waste time and should not be asked. The courts are, in this area of procedural law, concerned with fairness and whether matters are properly put in issue not with perfunctory questions which are asked as a matter of form. The rejection of that submission means that the appeal must be dismissed. Once it was open to the jury, acting reasonably, to reject the appellant's evidence then the verdict must stand. In the supplementary amended notice of appeal the appellant also challenged the ruling of the trial judge in admitting into evidence the 1975 Report of Accident Form and in failing to direct the jury that the contents of that report could not be used by it as a version contrary to the plaintiff's evidence. These grounds of appeal were referred to in the appellant's written submissions in terms which merely repeated the relevant paragraphs of the notice of appeal. No oral submissions were made in support of them and they should be rejected. If however, it were necessary to consider them I would reach the same conclusion. The document was admittedly signed by the appellant and, while a number of questions arose concerning the weight of the document, its admissibility was, in my view, clear. Likewise it was open to the jury to treat the report as an admission against interest. In my opinion the appeal should be dismissed with costs. Judgment below set aside; a general new trial ordered. The costs of the first trial to abide the exercise of discretion of the judge hearing the new trial. The respondent must pay the appellant's costs of the appeal. Counsel for the Appellant: A Lidden 12 UNREPORTED JUDGMENTS Solicitors for the Appellant: Champion and Partners Counsel for the Respondent: JMN Rolfe QC and WKL Dodd Solicitors for the Respondent: Hunt and Hunt