Supreme Court New South Wales Medium Neutral Citation: Zaya v Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd and Anor [2018] NSWSC 388 Hearing dates: 19; 20 March 2018 Date of orders: 20 March 2018 Decision date: 20 March 2018 Jurisdiction: Common Law Before: Campbell J Decision: My ruling is that the evidence set out in paragraphs 73 to 77 of Exhibit C is admissible. However, I reject it in written form, and direct that the topic be covered in oral evidence‑in‑chief. Catchwords: CIVIL PROCEDURE – admissions - judgment or orders on admission - silence as an admission Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 59, 87, 88, 89, 90 Cases Cited: Mundey v Askin [1982] 2 NSWLR 369; R v Martin; R v Martin [2017] NSWSC 1106; R v Qaumi & Qaumi (No 5) [2016] NSWSC 1537; R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455; Wiedemann v Walpole [1891] 2 QB 534 Texts Cited: E W Cleary, McCormick on Evidence (3rd ed, 1984, West Publishing Co); J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Andrawos Zaya (Plaintiff) Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd t/as Energised Alliance (First Defendant) Silver Raven Pty Ltd (Second Defendant) Representation: Counsel: J Gross QC with V Jurisich (Plaintiff) D Talintyre (First Defendant) M Best (Second Defendant) Solicitors: PK Simpson & Co (Plaintiff) Yeldham Price O'Brien Lusk (First Defendant) Sparke Helmore Lawyers (Second Defendant) File Number(s): 2014/187218 EX TEMPORE Judgment 1. I am ruling on the admissibility of a passage in the supplementary evidential statement of the plaintiff dated 14 March 2018, which has been admitted as Ex C. I interpolate that, notwithstanding the late service of the document, Mr Talintyre, Counsel for the first defendant, and Mr Best, Counsel for the second defendant, have not taken any issue about their ability to deal with and meet the material contained in the evidential statement. 2. The passage, which has been the subject of extensive submission before me, yesterday and today, is to be found in para 73 through to 77 of the statement. Yesterday I admitted para 73 as providing context to what follows in para 74 to 77. During the course of argument this morning, I think it's been accepted that if I refuse to admit the balance of the passage, I should revisit my ruling, in relation to para 73, and it should be rejected. 3. Mr Gross QC, who appears with Mr Jurisich for the plaintiff, submits that the material contained in those paragraphs constitutes an admission by conduct, and more particularly, an admission by silence. "I then went and phone the telephone number that I had for the sub-contractor formworkers employed by P&T. The formworker I spoke to said "Yesterday we were stripping the timber away from the stairs and Rod (ie Rod Valletta) asked us to stop stripping the timber away, and just to block the entrance and then leave." Then after I had spoken to that formworker I went to see Rod who was in the work shed. I told him "I just fell down the stairs and injured myself". Rod said "Bullshit". Then I told Rod "Timber was left on the stairs and I fell because of the timber". Rod said nothing in reply and was just silent and looking down away from me. Rod was not normally like this when I spoke to him. I also told him "I rang the formworkers and the formworker I spoke to said yesterday they were stripping the timber away from the stairs and you asked them to stop stripping the timber away and just to block the entrance and leave". When I told Rod this, Rod again did not answer me in words at all. He had his head down, he was evasive. He seemed to be very defensive and wary about answering me. Normally when I would speak to Rod, he would be able to speak to me and talk back to me when we were discussing anything. But this time he just looked away from me and was looking down and not prepared to look me in the eye and just giving no answer at all. This appeared very strange to me, as Rod was not normally like this. I thought he looked very embarrassed about what had happened and afraid to talk about it, as it was his fault the timber had been left on the stairs and I had not been told about it. So as Rod was still refusing to speak to me about the accident, I decided to stop talking to him and instead I went outside. When I spoke with Rod, there was no one else with us and there was no reason for him not to talk back to me. Previously I saw that whenever I or someone else at work spoke to Rod, he was always able to answer, and if he disagreed with me or anyone else on anything, he was quick to say so. This was the first time that I experienced that he had not spoken back when someone was speaking to him or asking questions." Nature of the plaintiff's case 1. The plaintiff's case is brought against the first defendants, a partnership or joint venture, in their capacity as the head contractors on the site of the construction of an extension to an electrical substation at Marrickville. The second defendant is the plaintiff's employer. It was concerned, inter alia, with the structural concreting work performed for the construction. Some of that work, in turn, had been subcontracted by them to formwork carpenters, known as PNT Formwork. 2. The plaintiff's case is that he was descending, in company with two others, a recently‑poured concrete staircase to gain access to the basement of the sub-station, to discuss further work to be carried out. As he made his way down the staircase - and he says the lighting was poor, a matter I will put to one side for the moment - he slipped, or tripped, on formwork that had been left in situ on two of the something like 16 to 20 steps of the staircase, tumbling down to the concrete floor at the foot of the stairs. The evidence before me is that there were two flights to the staircase separated by a landing. The offending formwork was on the second or third step on the second flight down from the landing. 3. It is his case that he suffered severe personal injury as a result of the fall. Of particular concern, is a Complex Regional Pain Syndrome affecting his right arm which, on his evidence, makes the arm effectively useless because of the pain and other symptoms he experiences. These symptoms are not amenable to even strong analgesia. 4. Although the plaintiff puts his case against the first defendants in a number of ways, I think it's fair to say, as Mr Talintyre of counsel has submitted, that a central allegation against the head contractor, bearing in mind what may be, in some circumstances, the limited duty of a defendant in such a position, is that the offending formwork had been left in position by the carpenters who had been in the process of stripping it, under the direct instruction, or orders, of the first defendant's site supervisor, Mr Valletta. I am told by Mr Talintyre that Mr Valletta strongly denies that assertion. The plaintiff's argument 1. I will be asked in due course if the evidence is admitted to infer from the passage under contention that following a conversation between the plaintiff and a person from the formwork company, he confronted Mr Valletta directly with the allegation that he had ordered the stripping work to stop. It will be submitted that in these circumstances, were the assertion of the formworker untrue one would have expected it would have been denied by Mr Valletta, rather he was defensive, even evasive, and did not answer the allegation at all. I have summarised the effect of what appears from the longer version in the statement. 2. Mr Gross submits that the facts set out in the passage are capable of being accepted in due course as admissions by conduct from which I could infer that the statement made by the formworker was true. 3. That statement, as I said in my short judgment yesterday, is in the following terms: "Yesterday we were stripping the timber away from the stairs, and Rod (ie Rod Valletta) asked us to stop stripping the timber away, and just to block the entrance and then leave." I interpolate that the formworkers are not a party to the proceedings. Mr Gross referred me to the E W Cleary, McCormick on Evidence (3rd ed, 1984, West Publishing Co) ("McCormick") at 651 - 652 for an explanation of the rule. The learned authors expressed the rule in these terms: "If a statement is made by another person in the presence of a party to the action, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak has traditionally been receivable against him as an admission." The learned authors point out that the principle underlying the rule, or the justification for it may not be entirely clear. 1. Mr Gross also drew my attention to passages in the learned work that demonstrated that the Courts in the United States have admitted the evidence, but cautiously, and a number of safeguards have been developed to guard against misuse of evidence of this type. I will not go into the various safeguards, however I will observe that it is clear that if accurate, the assertion that Mr Valletta ordered the formwork carpenters to desist from stripping the formwork it would be a matter directly within his knowledge, and if inaccurate would be a matter which he would be in a position to strongly disavow. 2. It might also be said that if the plaintiff's evidence is accepted there could be no question that Mr Valletta must have heard the challenge issued by him, and understood it and its significance. There's nothing in their relationship which would otherwise explain why he would fail to respond to such a charge levelled at him by a person who, in effect, was his subordinate. Case law 1. It is not necessary to rely upon McCormick, however, because the matter has received the attention of courts in this state, and I was taken to two decisions of Hamill J where his Honour traced the development of the rule, and analysed the relevant authorities governing the admission of such evidence in the context of the Evidence Act 1995 (NSW) ("Evidence Act"). Those decisions are R v Qaumi & Qaumi (No 5) [2016] NSWSC 1537 ("Qaumi"), and R v Martin; R v Martin [2017] NSWSC 1106 ("Martin"). 2. Before dealing with his Honour's analysis, I think it logical to first briefly review the relevant provisions of the Evidence Act governing the admissibility of admissions. The statute of course is both the start and end for questions of admissibility. First defendant's argument 1. However, it is, I think, relevant at this stage to refer to a passage to which my attention was drawn by Mr Talintyre from J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) at 1455 where the learned author questioned whether admissions by conduct, per se, where admissions dealt with under Part 3.4 of the Evidence Act. The basis of the learned author's question seems to be whether an admission by conduct is a previous representation given that the basis of admissibility is that the Court may draw an inference from all the circumstances surrounding, and including, the putative admission. But one might say by his silence, or other conduct, the party was not intending to assert any fact. The learned author went on to say, that being so, the admission, in any event, would not be caught by the hearsay rule ‑ see s 59 of the Evidence Act ‑ and would be admissible simply as direct observational evidence of the eyewitness called to give the relevant evidence. Were that so, of course, admissibility would depend solely upon the application of ss 55 and 56 of the Evidence Act. 2. Given the nature of the plaintiff's case, there is no issue that the material in the passage in contention is relevant in the s 55 sense in as much as if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings; that is to say, whether the hazard that the plaintiff says he encountered in descending the steps was created by the direction given by Mr Valletta to the formwork carpenters. Ruling 1. However, as Mr Gross has argued, interesting and stimulating as the learned author's question is, there is authority referred to by Hamill J in Martin that admissions of this type are, indeed, previous representations under the Evidence Act. 2. In Qaumi at [8], Hamill J referred to the R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 where, in a joint judgment, Wood CJ at CL and Howie J said at [260]: "But there are instances in the law where silence gives rise to an implied representation of fact… Silence in the face of an allegation can amount to a representation that the allegation is true where in the circumstances it is reasonable to expect that the allegation would be answered by an explanation or denial." By adopting the language of representation, their Honours rejected a submission that had been made by the Crown that a representation for the purpose of s 59 of the Evidence Act "cannot arise from silence." 1. If a matter is a representation for the purpose of s 59 of the Evidence Act, it must be taken, in my judgment, as a representation for all purposes under the Act. I was taken by Mr Gross to the relevant contents of the dictionary pertinent to the topic, including the definition of representation itself, which includes a representation to be inferred from conduct. 2. I am of the view that the admissibility of this evidence is governed not only s 55 and s 56 but it would be caught by the exclusionary rule in s 59, unless it is covered by the exceptions dealt within Part 3.4 concerning admissions. There is no doubt that the conclusion that the plaintiff would seek the court to infer from the evidence would, in substance, be a previous representation adverse to the first defendants' interests in the outcome of the proceedings. 3. Manifestly, Mr Valletta is not a party to the proceedings; however, s 87 of the Evidence Act deals with admissions made with authority. So far as material it provides: "For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find: … (b) when the representation was made, the person was an employee of the party…and the representation related to a matter within the scope of the person's employment"… (Emphasis added.) 1. I think it is open to find, in these circumstances, on the evidence I have already received in Ex C, which in this respect at least, is not disputed that Mr Valletta was at the material time the site supervisor responsible for the execution of the works on behalf of the first defendants with authority to give directions to subcontractors about their performance of the work. It is also important, I think, to bear in mind s 88 of the Evidence Act, which emphasises that for the purpose of determining whether evidence of an admission is admissible, the Court is to find that the particular person that made the admission, if it is reasonably open to find, that he or she made the admission. 2. The question of admissibility may be approached in this way: it is not necessary, subject to the general discretion to exclude evidence that Mr Talintyre reminded me of, to make any assessment whatsoever about the reliability of this evidence at this stage. This follows from a number of considerations. The first is the particular rule I have emphasised applying to admissions that they are to be admitted if, in the assessment of the court, it is reasonably open to find that the admission was made. The second consideration follows, of course, from the express language of s 55 of the Evidence Act which defines evidence as relevant by reference to the expression, "if it were accepted". One might say if it were accepted, in due course, by the tribunal of fact. 3. Returning to the substance of the matter, some difficulties arise because of the consideration that, most commonly, evidence of this type arises in criminal proceedings, and evidence of this type is capable, in that context, of traversing the fundamental right to silence. Recognising this, the Evidence Act itself makes specific provision, in criminal proceedings about the admission of evidence of silence generally: see, for example, ss 89 and 89A of the Evidence Act. Moreover, a general discretion to refuse to admit evidence of admissions is reposed in the court by dint of s 90. 4. The rule is not so strict, nor so jealously guarded, in civil proceedings. That this is so, I think, is demonstrated by reference to Mundey v Askin [1982] 2 NSWLR 369, referred to by Hamill J in Martin, at [32] - [33]. There a unanimous Court of Appeal said that the principle had been accurately stated by Bowen LJ in Wiedemann v Walpole [1891] 2 QB 534 at 539, a breach of promise of marriage case requiring corroboration. His Lordship said: "Silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge made against him, than he would not." Mr Talintyre referred me to the judgment of Lord Esher MR in the same case (at 538) where his Lordship said: "..must it be taken, according to the ordinary practice of mankind, that if a man does not answer he admits the truth of the charge against him? If it were so, life would be unbearable." Hamill J also referred to Thatcher v Charles (1961) 104 CLR 57; [1961] HCA 5, and in particular, to the judgment of Fullagar J. Although the proffered silence was rejected as evidence of an admission in that case, Fullagar J stated the rule in civil cases as being that the proffered admission is not admissible unless it is fairly open to a jury to infer an admission of relevant fact from the silence of the party. 1. It seems to me that this more flexible test is applicable in these civil proceedings. I understand that the basis of the rule, according to the work of text‑writers, to be that it is part of human experience that persons who are conscious of their liability for some civil wrong will often, on being accused of the wrong, remain silent or answer evasively, or act in other ways, which may, according to human experience, Lord Esher's ordinary practice of mankind, and depending on all the circumstances, be treated as an admission, or where it is required, as corroboration. Silence may, in this context, imply assent to, or acquiescence in, what has been said, and the inference available to the tribunal of fact is that a denial would be expected by the party if the statement was false. It may be that silence is a sign of consciousness of civil liability. 2. It is manifest that evidence of this type will more easily pass through the gateway of admissibility in a civil rather than a criminal case. And although admissibility says nothing about reliability or, for that matter, acceptance or acceptability, I am of the view that the passage in para 73 to 77 is admissible as a potential admission, from which an inference could (not necessarily would) be drawn, in the plaintiff's case, assisting him in making good his case on liability against the first defendant. 3. It seems to me that if the evidence is true, then it is the very type of matter where one would have expected Mr Valletta to strongly deny the charge, given what may be taken to be the robustness which generally attends human relations on building sites. Final point 1. This leads me to the final point in this already overly long interlocutory decision, and that is to say whether the evidence ought to be admitted in written form, to be challenged orally in cross‑examination by Mr Talintyre, or as he argues it should be given orally. 2. It has long now been the practice of the Court in its Common Law Division that the evidence‑in‑chief of witnesses, including parties, is given in writing. There are obvious efficiencies which attend the adoption of that procedure. At the same time, although it is likely to vary from judge to judge, a degree of flexibility is allowed by judges of the Division, lest the requirements of the Rules and the Practice Note becomes a fetter upon the administration of justice rather than a facilitator of it; it is well established that the Rules ought not be permitted to become an instrument of forensic tyranny. 3. Ex C was very late in coming forward. As I have said, it was filed and served on 14 March 2018. With no disrespect, and without aspersion, in the way of these things, such documents are always prepared by the parties' lawyers, who have an intuitive and informed understanding of the issues in the case, and perhaps the evidential difficulties in the case. I bear in mind the aphorism of Mr Wheelahan of Queen's Counsel, that there is no case so strong that it cannot be improved by evidence of a telling admission. However, I am sure that the circumstance is not operating here. 4. Nonetheless, given that the original evidentiary statement was entirely uninformative as to the circumstances in which the plaintiff suffered his injury, as, may I say, was the statement of claim itself, I think there is much to be said for Mr Talintyre's application that the evidence should be given orally. Having said that, I do note from the material I was provided with yesterday in relation to Mr Talintyre's application about the pleadings, that in a letter dated 14 August 2013, it was asserted on behalf of the plaintiff at para 5.9, the following: "We are instructed that the step on which our client slipped on was not properly stripped of its formwork. It is alleged that the Defendant failed to warn our client that the stairs were unsafe to walk on, failed to put up signs informing the unsafe nature of the stairs, failed to ensure that the workplace was properly lit and failed to maintain a safe workplace." It is hardly expansive, but it does contain, at an early time, an identifiable germ of the plaintiff's case. Having said that, I think that the interests of justice would be better served, given that Mr Valletta will have to give oral evidence about this matter, and that I may be required to have regard to the demeanour of the plaintiff, and Mr Valletta, in giving their accounts about this topic, in assessing their evidence, the evidence ought to be given orally by the plaintiff. 1. This may operate in the plaintiff's favour, I think, given that the first I will hear from him about this is in his own case, rather than when he is challenged by Mr Talintyre. That will provide me with a better opportunity of looking at the case overall, and looking at his evidence overall, whether it becomes necessary for me to assess what I expect, at least in evidence-in-chief anyway, will be the competing evidence of Mr Valletta. For these overly long reasons, my ruling is that the evidence set out in para 73 to 77 of Exhibit C is admissible. However, I reject it in written form, and direct that the topic be covered in oral testimony. ********** 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. Decision last updated: 08 May 2019