New South Wales Supreme Court CITATION : Marshall v Wallerawang Collieries Pty Ltd [1999] NSWSC 937 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 500063/97 HEARING DATE(S) : 7/9/99; 8/9/99; 10/9/99 JUDGMENT DATE : 10 September 1999 PARTIES : Michael Marshall Wallerawang Collieries Pty Ltd JUDGMENT OF : Wood CJatCL LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : D. Nock QC with S. Torrington (P) J. Gleeson QC with B.G. Smith (D)) Barry Cosier & Associates SOLICITORS : Sparke Helmore CATCHWORDS : DECISION : Plaintiff's application to re-open case granted; Costs reserved THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WOOD CJ at CL DUBBO- FRIDAY 10 SEPTEMBER 1999 500063/97- MICHAEL MARSHALL v WALLERAWANG COLLIERIES PTY LIMITED JUDGMENT Re re-opening of plaintiff's case. (See page 1 of transcript of 10 September 1999) 1 HIS HONOUR: The evidence in this matter concluded on Wednesday afternoon, as did the submissions. Judgment was then reserved. The plaintiff has now filed a Notice of Motion seeking leave to re-open the proceedings to adduce further evidence. That evidence is contained in an affidavit sworn by the plaintiff on 9 September and it relates to conversations which he said that he had that day. 2 In substance, he says that he was advised by his solicitor, and I understand also by his counsel, to return to the colliery to make appropriate arrangements for his return to work. He is, at this stage, subject to a certificate which runs out at the end of the month. 3 He said that on speaking to the Human Resources Manager, Mr Lever, an inquiry was made as to whether his claim had been finalised on the basis that he would be "finished up" or would be keeping his job. He was informed that he was needed in the washery. He said that he would like to go back to work, but it would be on permanent restricted duties. Those duties he described in the following terms: "Restrictions on lifting, using heavy equipment, staying away from vibrating equipment, large magnets, high voltage areas, etc, not working underground." 4 Mr Lever said that he would speak to Mr Salisbury, the safety manager; and to Mr Strauss, the Coal Washery Manager, to see what could be worked out. The plaintiff added that the restrictions, would be there for life, and that he needed some assurance that he would be kept in the job with these restrictions, until he was 60. Mr Lever repeated that they would have to talk to Mr Salisbury, to Mr Strauss and also to Mr Butcher, the mine manager. 5 There was then a conversation with the safety manager, in the course of which, the plaintiff said, Mr Salisbury informed him that the mine did not allow anyone to stay on in their job under permanent restricted duties. The case of a federation miner, John Raines, was cited. The plaintiff said that he observed, "John (Mr Raines) was retrenched under medical reasons, is that what will happen to me?" Mr Lever said, "Yes, go and see Wayne McAndrew. Talk to him and Barry Cosier and we'll go from there." I observe that Mr McAndrew was the district union representative, and Mr Cosier was the plaintiff's solicitor. 6 Mr Lever then enquired whether the plaintiff had been in touch with the Joint Coal Board about retraining to which he replied in the negative. Mr Salisbury said that he would telephone them and advise that the plaintiff would be in contact. He was informed, "They will ask about interests, hobbies, give an IQ test and give you an idea about what you could do." 7 It is on the basis of that evidence that the application is brought. 8 The plaintiff has been cross-examined to the effect that the conversation was contrived and designed to improve his claim for damages. He was asked in particular, whether he had been given a list of the questions designed to extract admissions from the defendant which might assist his claim for damages. The plaintiff denied that that was the case. He said that the sole advice given to him was that he should go back to the mine to make arrangements for his return to work. 9 The defendant has not called any evidence on the application, but opposes it upon the basis that this evidence could have been called in the trial, and that the plaintiff should have anticipated his possible retrenchment by calling evidence as to mine policy, or otherwise, if this was to be an issue in the proceedings. 10 It may be observed that the particular conversations, in respect of which evidence is sought to be called in the trial, did occur after the proceedings were completed but before judgment was delivered. In that sense the evidence was not available to the plaintiff before the hearing concluded. Whether similar answers would have been received, had there been a conversation along those lines before commencement of the hearing, is by no means clear. 11 The assessment of damages for impairment of future earning capacity is the most difficult issue in this case since it depends upon a number of uncertainties, relating to the plaintiff's medical condition, and also to the continuation of employment of a worker with restrictions. It is clear, from the evidence which was led in the trial, that the plaintiff does have some restrictions which prevent him from undertaking heavy lifting and using heavy equipment and which also require him to stay away from vibrating equipment and work underground. Additionally, there is some evidence to the effect that because of the epidural stimulator, and the presence of a pacemaker in his body, he may face difficulty if working in close proximity to electrical fields. 12 The plaintiff may have been in a position to have called some further general evidence on this topic, relating for example, to mine policy, or the experience of other comparable workers with permanent restrictions. As I have observed, however, the precise evidence concerning the attitude of mine management to himself, would not have been available before 9 September. 13 Having regard to the fact that this evidence does throw light upon what is a critical issue in the trial, and also having regard to the once and for all assessment rule, I propose, in the exercise of my discretion, to allow the plaintiff to reopen to call the evidence. I am not persuaded that the defendant would suffer any prejudice in that regard. I am satisfied, conversely, that the plaintiff could suffer a significant injustice if the application was refused. In order to allow the defendant a proper opportunity to call evidence in reply, I propose to stand over the further hearing of the proceedings, and to defer giving judgment until that opportunity is either taken up, or I am informed that the defendant will allow the matter to be determined upon the evidence now available. 14 It is accepted, as I understand it, that the evidence called this morning, including the affidavit, can be treated as evidence in the trial. However, I add that since the defendant has had limited opportunity to consider that affidavit, I will allow it an opportunity to further cross-examine the plaintiff at the resumed hearing should it so desire. 15 I reserve the question of costs. In that regard, it seems to me, that unless good reason to the contrary is shown, it would be reasonable to expect the plaintiff to pay the defendant's costs of the application, and of any additional costs occasioned by it. That I regard to be a reasonable price for the discretionary exercise of the power which is sought to be invoked. However, I will defer further consideration of that matter until the plaintiff has had an opportunity to be heard in relation to it. ********** Last Modified: 09/15/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.