Matton Developments Pty Ltd v CGU Insurance Limited
[2014] QSC 256
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- Unreported Judgment
- Matton Developments Pty Ltd v CGU Insurance Limited[2014] QSC 256
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Matton Developments Pty Ltd v CGU Insurance Limited[2014] QSC 256
Matton Developments Pty Ltd v CGU Insurance Limited[2014] QSC 256
SUPREME COURT OF QUEENSLAND
CITATION: | Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 |
PARTIES: | MATTON DEVELOPMENTS PTY LTD ACN 100 028 340 ACN 004 478 371 |
FILE NO: | SC No 1704 of 2011 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 16 October 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 October 2014 |
JUDGE: | Flanagan J |
ORDER: | 1.Pursuant to r 478 of the Uniform Civil Procedure Rules 1999 (Qld) at the trial of this proceeding the court shall:
|
CATCHWORDS: | EVIDENCE – GENERAL – INSPECTION – where the plaintiff was the lessee/owner of a crane – where the boom of the crane collapsed – where the plaintiff and the defendant had entered into a policy of insurance – where the plaintiff claimed, but was denied, indemnity under the insurance policy – where there exists a factual dispute between the parties as to how and where the crane was being operated when the boom collapsed – where the plaintiff applies for an inspection of a similar crane and its load – where the plaintiff applies for a demonstration of a similar crane’s manoeuvring capabilities and also the operation of a similar crane in manner alleged by the plaintiff – where the plaintiff applies for anything observed by the court during any inspection and/or demonstration to be received as evidence – whether any inspection and/or demonstration ought to be granted – whether any inspection and/or demonstration ought to be received as evidence – whether the demonstration ought to occur in circumstances where there is a factual dispute over how the incident occurred Uniform Civil Procedure Rules 1999 (Qld), r 478 Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80, cited Buckingham v Daily News Ltd [1956] 2 QB 534, applied Evans v The Queen (2007) 235 CLR 521, considered Scott v Nurmukah Corporation (1954) 91 CLR 300, considered Tito v Waddell [1975] 1 WLR 1303, considered |
COUNSEL: | D Cooper QC, with A F Messina, for the plaintiff G A Thompson QC for the defendant |
SOLICITORS: | Warlow Scott Lawyers for the plaintiff Barry.Nilsson Lawyers for the defendant |
Introduction
- By application filed 10 October 2014, the plaintiff applies for the following orders:
“1.Pursuant to r. 478 of the Uniform Civil Procedure Rules 1999 (Qld)(the UCPR) at the trial of this proceeding the court shall:
a)inspect a Liebherr LTR1100 telescopic crawler crane (the Crane) at the premises of Casa Engineering (Brisbane) Pty Ltd;
b)witness a demonstration of the basic manoeuvring capabilities of the Crane;
c)inspect a concrete tilt panel of identical specifications as the panel described as ‘panel 30’ in the defence;
d)witness a demonstration by James Hitaua of the way in which he was operating the crane (the subject of this proceeding) immediately before, and at the time when the boom collapsed (the View).
- Pursuant to r. 478 of the UCPR anything observed or witnessed by the Court during the View shall be received as evidence at the trial of this proceeding.
- The Plaintiff shall organise and pay any costs and provide any indemnities to Casa concerning the View … ”
- The defendant consents to an order in terms of paragraph 1(a) of the application but opposes the orders sought in paragraph 1(b), 1(c), 1(d) and 2.
Background
- The proceedings concern the collapse of the boom of a 2007 Liebhrerr LTR1100 telescopic crawler crane (“the crane”). The statement of claim pleads that the plaintiff is the lessee/owner of the crane. There was a written contract of insurance (“the Policy”) as between the plaintiff and the defendant. On 9 February 2009 the plaintiff made a claim on the Policy for indemnity in respect to the collapse. The defendant refused to indemnify the plaintiff under the Policy. The plaintiff claims damages for breach of the Policy and further or in the alternative damages for breach of an implied term of the Policy and breach of the statutory duty of utmost good faith imposed pursuant to s 13 of the Insurance Contracts Act 1984 (Cth).
- The boom of the crane collapsed at approximately 11:15 am on 1 February 2009 whilst being operated by one, James Hitua. The crane was being used in the construction of an extension to a factory at Darra in Queensland. It was being used to lift and place about 25 concrete tilt panels, each weighing between approximately 36 and 38 tonnes.[1]
- There is a factual dispute between the parties as to how the boom of the crane collapsed. The plaintiff’s version is set out in part in paragraphs 16 and 17 of the statement of claim:[2]
“16.At about 11:15am:
a)Hitua ceased crawling the Crane as pleaded in paragraph 15(g)(iii);
b)the Crane was stationary, level and on level ground;
c)the base of the Panel was about 200mm off the ground;
d)a rigger stood at each side of the Panel and held it perpendicular to the Crane’s boom;
e)Sprecak stood no more than 2 metres to the left of' the Panel (from Hitua’s perspective).
17.Between 2 and 2.5 seconds after Hitua ceased crawling the Crane there were 2 loud bangs immediately after each other, following which:
a)the Crane’s boom toppled to the left of the Crane (from Hitua’s perspective) and fell behind the Crane’s cockpit;
b)the Panel was dropped onto the last panel of the Final Stack;
c) the collapse of the Crane's boom caused:
i.the Crane to lurch forward about 2 metres and onto the rubble pleaded in paragraph 12(f);
ii.the rear of the Crane’s tracks to slide to the left (from Hitua’s perspective) and dig into the ground;
iii.the rear of the Crane’s left track to dig into the ground more than the Crane’s right track;
iv.the front of the Crane’s tracks to rise into the air;
vthe Crane’s cockpit come to rest on an [sic] decline of about 7 degrees front to rear;
vi.the cable to unwind from the cable drum,
(the Collapse).”
- Paragraph 17(c)(i) refers to paragraph 12(f) which states:
“between the Final Stack and the exterior wall of the factory was rubble, which consisted of pieces of concrete of various sizes and other construction wastage generated in the course of constructing the footings and other work on the Project site;”
- The defendant’s version is set out in paragraphs 9 and 10 of the defence:[3]
“9.On Sunday 1 February 2009:
(a)the lifting procedure described in subparagraphs 7(f)(i) A to G was followed in respect of Panel 30;
(b)the front of the crawlers of the Crane were facing in approximately the opposite direction to the location where Panel 30 was to be installed and were parallel to the location where the panel had been stacked;
(c)Mr Hitaua caused the crane to lift Panel 30 and slew the boom of the Crane so that Panel 30 was to the front of the crawlers of the Crane where props were attached to the panel;
(d)while the props were being attached to Panel 30, Mr Hitaua caused or directed a rubble ramp to be constructed between the rear tracks of Crane and the structure into which the panel was to be erected;
(e)the rubble ramp was constructed:
(i)of loose pieces of concrete and other materials using a skid steer loader;
(ii)to a height above the level of the surrounding ground;
(f)Mr Sprecak expressed concern to Mr Hitaua that the ramp was too high and could put stress on the crane.
Particulars
Mr Sprecak said to Mr Hitaua words to the effect:
‘don’t you think that’s a little bit high.’
‘you should knock that down cause you don’t need … that’ and that the height of the ramp ‘could put a little bit of pressure on the crane itself’
(g)Mr Hitaua rejected Mr Sprecak’s advice and did not reduce the height of the ramp or direct the height of the ramp to be reduced.
Particulars
Mr Hitaua said to words Mr Sprecak to the effect:
‘when that red lights flashing it means don’t listen to Gary’ (referring to Mr Sprecak)
(h)following construction of the concrete rubble ramp, Mr Hitaua slewed the boom of the Crane back to the position where the Panel 30 was parallel to the crawler track nearest the position of the original stack and the Crane operator’s cabin was facing in a direction of approximately 90 degrees to the Crane crawler tracks;
(i)Panel 30 was suspended from the boom of the Crane approximately 600mm above the ground;
(j)Mr Sprecak requested Mr Hitaua by 2 way radio to lower the panel to a height of approximately 200mm above the ground, which Mr Hitaua did;
(k)Mr Hitaua then commenced reversing the Crane in the direction of the structure into which the panel was to be placed;
(l)Mr Hitaua reversed the Crane up the concrete rubble ramp;
(m)while the Crane was crawling in reverse up the concrete rubble ramp, the boom of the Crane collapsed;
(n)further, or in the alternative, immediately before the boom of the Crane collapsed whilst the crane was on the concrete rubble ramp, Mr Hitaua was attempting to slew the boom Crane towards the location in the structure where the panel was to be positioned;
10.At the time the boom Crane collapsed:
(a)the Crane was being operated in the Crane manufacturer’s Operation Code 5039;
(b)the boom of the Crane was supporting a load of 39.2 tonnes, which comprised Panel 30 and rigging;
(c)the maximum load radius of the boom of the Crane carrying the load referred to in subparagraph (b) with the boom length at 26.4m was approximately 6.5 metres;
(d)the angle of the base of the Crane from front to rear was 7 degrees;
(e)operation of the crane on the 7 degree slope resulted in 3,000 mm of lateral displacement of the hoist ropes from the vertical, generating horizontal forces on the boom;
(f)the 7 degree angle of the base of the Crane from front to rear was a result of the Crane having crawled up the concrete rubble ramp;
(g)the Crane had crawled up the concrete rubble ramp to a point where the distance from the centre of the slew of the crane to the intended set down position of the panel was 8.8 metres;
(h)the Crane did not lurch forward onto the concrete rubble ramp as alleged in paragraph 17(c) of the Statement of Claim;
(i)the rear of the Crane’s tracks did not slide or dig into the ground as alleged in paragraph 17(c) of the Statement of Claim,
(j)the front of the Crane’s tracks did not rise into the air as alleged in paragraph 17(c) of the Statement of Claim;
(k)the Crane’s cockpit did not come to rest on a decline as alleged in paragraph 17(c) of the Statement of Claim because it was at an angle of approximately 7 degrees as it ascended the concrete rubble ramp prior to the boom collapsing.”
- Mr Cooper QC, who appeared with Mr Messina for the plaintiff, identified as the fundamental issue in dispute between the parties, the manner in which the crane was being operated immediately before the collapse.[4] Mr Thompson QC, for the defendant, identified the issue as being that the crane was operating in an area where the ground was not suitable for the crane to operate.[5]
- On 26 September 2014 the solicitors for the plaintiff wrote to the solicitors for the defendant in relation to the proposed view and demonstration:[6]
“The pleadings identify the controversy concerning the manner in which the crane operated on the day in question. Again, his Honour may gather an appreciation of what the crane did or did not do, however, only an inspection of the crane in operation will give the level of precision necessary for his Honour to make a proper determination.
For that reason, our client proposes that the court inspect a demonstration of an almost identical crane. We propose that on the first day of trial, the court attend the premises of Casa Engineering (Brisbane) Pry Ltd. The court will inspect a Liebhrerr LTR 1100 telescopic crawler crane. A pre-cast concrete tilt panel weighing 38.1 tonnes of the same dimensions as panel 30 shall be on site. The crane will erect the panel in a manner consistent with each party’s pleading. Further, our client proposes to reconstruct the ground conditions as alleged by each party to give his Honour a precise appreciation of each party’s case. While we do not propose to operate the crane on the ground conditions alleged by your client, we still assert that a view will give his Honour valuable insight into the factual matrix of the case.” (footnote omitted)
- The solicitors for defendant replied by letter dated 3 October 2014:[7]
“We consider it is a matter for the Court to determine whether it would be assisted by undertaking the exercise you have proposed. Our view, however, is that there is no merit in such an exercise and our client will object in the event your client is minded to proceed with seeking an order of this nature.”
The plaintiff’s submissions
- Even though the letter from the plaintiff’s solicitors refers to a “reconstruction”, Mr Cooper submitted that what is sought are orders involving a view and a demonstration; not a reconstruction.[8]
- The difference between a view, a demonstration and a reconstruction was explained in Evans v The Queen:[9]
“The common law, then, draws a distinction between views, demonstrations and reconstructions:
‘It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony’.” (footnote omitted)
- For reasons developed below I am of the opinion that the order sought in paragraph 1(b) of the application is in the nature of a demonstration whereas the order sought in paragraph 1(d) of the application is more in the nature of a reconstruction.
- The application is brought pursuant to r 478 of the UCPR which provides:
“478 View by court
The court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding.”
- In relation to the discretion conferred by r 478 Mr Cooper submitted, by reference to Tito v Waddell,[10] that there is a predisposition in favour of granting the relief sought. To the extent that there is such a predisposition I note that Tito v Waddell only concerned a view rather than a demonstration. Mr Cooper further submitted that the exercise of the court’s discretion is informed by established common law principles.[11] In this respect he referred to [190] of Evans v The Queen:[12]
“At common law a ‘view’ was an out of court examination of land, or of chattels too large to be taken into court and tendered as exhibits. The purpose of a view was to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of the features of the things viewed, ‘to understand and weigh the oral evidence’. A ‘view’ was distinguished from an out of court demonstration or reproduction of a past event which had been described by witnesses in court. According to Fullagar J, the court could not treat a demonstration or reproduction as in truth a demonstration or reproduction of what witnesses had described unless one of two conditions was satisfied. The first was that the parties specifically admit that ‘the demonstration was, or [agree] that it should be treated as, a reproduction of what the witnesses had attempted to describe’. The second was that it be ‘proved by evidence ... that the demonstration really did reproduce what the witnesses had attempted to describe’. On the other hand, Dixon CJ, Webb, Kitto and Taylor JJ favoured a stricter test: apart from power under rules of court, they said experiments or demonstrations (as distinct from views) could not be taken into account unless they took place ‘at the request of or with the complete concurrence’ of all parties.” (footnotes omitted)
- As the crane cannot be brought into court and tendered, Mr Cooper submitted that the only way in which the court may fully appreciate its physical aspects and presence (that is its size, weight, mobility and functionality) is to view a crane virtually identical to the one the subject of the proceedings. Similarly, he submitted that the only way to fully appreciate the size and weight of a concrete panel is to see one identical to the panel referred to in the pleadings. This is a reference to the orders sought in paragraphs 1(a) and 1(c) of the application which seek an inspection of a similar crane and concrete tilt panel of identical specifications as the panel described as “panel 30” in the defence.
- As to the demonstrations sought in paragraphs 1(b) and (d) of the application, Mr Cooper submitted as follows:[13]
“The Court should witness the mobility, functionality and noise-level of the overall lifting operation in which the loss occurred as well as the physical proximity of the workers assisting the crane operator to the boom and slab at the time of the collapse because this is directly relevant to the issues for determination in the case; and again, it will greatly assist the Court in assessing both lay and expert evidence.
As submitted at the outset the Applicant is not purporting to reconstruct anything because the exact circumstances of the area of operation, the manner of operation of the crane and the slab, and the exact crane and slab, cannot be replicated.
But there is a mine of authority, which establishes that a ‘demonstration’ may include the operation of a machine that is directly concerned with the subject of the litigation.
It is submitted that the demonstration should be received as part of the evidence in chief of the operator because it will occur in the presence of the judge and both parties and it is the best evidence available to the Court.
Again there is a mine of authority which sanctions this practice.”
(footnotes omitted)
- Mr Cooper identified that the prime justification for an order for demonstration was that it constituted the clearest, simplest and most direct explanation available to the tribunal of fact, to understand and evaluate each aspect of the evidence relating to the pivotal inquiry in these proceedings which includes the disputed expert testimony of what caused the collapse of the crane’s boom.[14]
Defendant’s submissions
- In resisting paragraphs 1(b), 1(c), 1(d) and 2 of the application Mr Thompson QC submitted:[15]
“The court should not accede to a demonstration or reconstruction, and certainly should not treat a demonstration or reconstruction as evidence of what occurred unless one of two conditions is satisfied. The first is that both parties specifically agree to the admission of that evidence.
The second condition (possibly) is that it be proved by evidence that the demonstration really did reproduce what the witnesses has attempted to describe. Scott v Nurmurkah Corporation (1954) 91 CLR 300 at 315 per Fullagar J. However, Dixon CJ, Webb, Kitto and Taylor JJ in Scott v Numurkah Corporation favoured a stricter test: demonstrations (as distinct from views) could not be taken into account unless they took place ‘at the request of or with the complete concurrence’ of all parties: Evans v The Queen [2007] HCA 59 at 190 per Heydon J.”
- Mr Thompson did not suggest that r 478 had no operation in circumstances where one party opposed a demonstration. Rather, he submitted that the fact that the demonstration was not sought by both parties was a relevant consideration that should be taken into account in the exercise of the discretion. The statement of Dixon CJ, Webb, Kitto and Taylor JJ in Scott v Nurmukah Corporation, cited by Mr Thompson, was subject to a qualification identified by Heydon J in Evans v The Queen, namely:[16]
“apart from power under rules of court … demonstrations (as distinct from views) could not be taken into account unless they took place ‘at the request of or with the complete concurrence’ of all parties.” (my emphasis)
In the present case there is a rule of court, namely r 478, which gives to the court a discretion to witness a demonstration. The discretion under r 478 is however, informed by the common law which includes a consideration as to whether there is a concurrence of all parties to the proposed demonstration.
- Mr Thompson also referred to the following passage from Cross on Evidence:[17]
“The orthodox approach in Australia is that, in the absence of contrary agreement between the parties, a visit to a scene is not part of the evidence, but merely something which enables the court the better to understand the evidence given by witnesses. In the absence of contrary agreement between the parties, the same is true of a demonstration of a process or event. If the court proposes to use extraneous evidence in the form of its observations, it must give the parties an opportunity to comment on their course. The admissibility of demonstrations depends on their being sufficiently similar to the original event.” (footnotes omitted)
Discussion
- I commence with a consideration of the words of r 478. Rule 478 falls within Chapter 13, Part 3 of the UCPR. Part 3 is entitled “Trial” and only applies to proceedings started by a claim.[18] Division 3 is entitled “View” and only contains rule 478. The heading to rule 478 is “View by court”. Rule 478 does not however speak in terms of a view but rather in terms of inspecting a place, process or thing and witnessing any demonstration. It may be accepted that r 478 deals with views in the common law sense although it calls them “inspections”.[19] The word “demonstration” is not a defined word. The only limitation is that the place, process, thing or demonstration must be “about which a question arises in the proceeding.” The rule does not make any reference to a “reconstruction”, although it may be accepted that in certain circumstances a demonstration may have some element of reconstruction.
- The rule is silent as to what factors inform the exercise of discretion. The rule is also silent as to whether the inspection or demonstration constitutes evidence in the trial or is to be merely used to assist the court to better understand the evidence given by witnesses.
- In Avis v Mark Bain Constructions Pty Ltd Atkinson J, by reference to rule 478, touched upon the utility of a view:[20]
“Views are permitted by r 478 of the Uniform Civil Procedure Rules (“UCPR”) which provides that the court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding. In relation to the utility of a view, the High Court in Scott v Numurkah Corporation (1954) 91 CLR 300 at 313 and 315 cited Unsted v Unsted (1947) 47 SR (NSW) 495 where, at 498, Davidson J observed that:
‘Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept. … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence:. London and General Omnibus Co. Ltd. v. Lavell. Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point: cf. Bourne v. Swan & Edgar Ltd.; Payton & Co. v. Snelling, Lampard & Co. It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties: Way v. Way; Kessowji Issar v. The Great Peninsular Railway Co.’.” (footnotes omitted)
- Jackson and Pastellas made the following observations in respect of rule 478:[21]
“This provision is fairly straightforward and imposes no restrictions on the use to be made of such an inspection. However there have been a number of cases that have considered the nature of such an inspection and how it may be used. At this stage it is unknown whether these restrictions will be placed on the use of an inspection under the new rule …
The rule clearly gives the court a discretion of whether or not to grant a view – therefore a party can neither compel the holding of a view nor prevent the holding of the view contrary to the exercise of discretion by the court (Tito Waddell [1975] 3 All ER 997). The qualification on the discretion is that there must be a connection with a question arising in the proceeding.
Courts will be generally willing to grant a view, unless it is clear that holding the view would achieve nothing, but would waste time and money. In Tito Waddell [1975] 3 All ER 997 the court was willing to order a view of Ocean Island, the subject of the proceedings, even where it would take a trip of 11 days to achieve only a 2-day view of the island.”
- In Evans v The Queen the High Court considered ss 53 and 54 of the Evidence Act 1995 (NSW). These sections provide:
“53Views
(1)A judge may, on application, order that a demonstration, experiment or inspection be held.
(2)A judge is not to make an order unless he or she is satisfied that:
(a)the parties will be given a reasonable opportunity to be present, and
(b)the judge and, if there is a jury, the jury will be present.
(3)Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
(a)whether the parties will be present,
(b)whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,
(c)the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,
(d)in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,
(e)in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
(4)The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
(5)This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
54Views to be evidence
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.”
- Unlike rule 478, s 53(3)(a) to (e) of the Evidence Act 1995 (NSW) identifies matters that the judge may take into account in deciding whether to make an order for a view or a demonstration. Whilst these matters are identified in a discrete statutory context they may, in my opinion, inform the exercise of discretion under rule 478. This is because the matters listed in s 53(3)(a) to (e) are generally reflective of the common law. As Heydon J observed: “[t]he starting point in construing s 53 must be the common law.”[22] There was common ground between the plaintiff and the defendant as to the correctness of this proposition.
- The consideration in s 53(3)(d), namely that in the case of a demonstration “the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated”, was a consideration identified by Dixon CJ, Webb, Kitto and Taylor JJ in Scott v Numurkah Corporation.[23] That case concerned a nuisance caused by noise. The trial judge attended the town hall for a view over the objection of one of the parties where the alleged noise nuisance was in effect demonstrated. The plurality stated at 309-310:
“In the first place it is quite wrong to speak of what took place at the town hall as a view. It was considerably more than that. In addition to having a view of the premises his Honour saw and heard a demonstration of the nature already described and this, for all practical purposes amounted to the taking of evidence in the suit. In the circumstances of this case, it seems to us, such a course could only have been undertaken with the full consent and concurrence of both parties and, unhappily, on this point there is some degree of conflict between the parties which cannot wholly be resolved by recourse to the written transcript. Senior counsel for the appellant maintains that he objected that the proposed demonstration would not, and, he says, indeed could not, reproduce the conditions complained of and he did not himself attend the demonstration, though it is not suggested that his absence was intended as a refusal to take part in the demonstration. Junior counsel for the appellant, however, did attend and it is clear that both counsel and their client were aware of the time proposed for the demonstration and had a full opportunity of being present and seeing and hearing what took place. It is, however, equally clear that the demonstration was not, in one sense, the product of the joint action of the parties though the appellant must have collaborated to the extent of exhibiting a motion picture that evening. But at no time before the demonstration took place did a consultation, as suggested by the learned judge, take place and no evidence was thereafter given to establish that the conditions which were then produced were comparable with those complained of.”
- The importance of the parties agreeing to a demonstration is that it may be assumed in those circumstances that the demonstration will be sufficiently equivalent to the event in issue. As stated in Lunn’s Civil Procedure SA:[24]
“Demonstrations or experiments conducted by suitably qualified experts which would tend to enlighten the court may be conducted in its presence in circumstances reasonably or substantially similar, but not necessarily identical, to those prevailing at the time of the occurrence in question. Where a reconstruction is performed to test the feasibility of a particular manoeuvre it should be carried out by witnesses who can be cross-examined about it, and not by the judge personally. A reconstruction which is not substantially equivalent to the events in issue will not be allowed as a demonstration. Where the parties agree to a demonstration it will be assumed to be sufficiently equivalent to the event in issue and the court should not initiate a demonstration.” (citations omitted)
- In Titto v Waddell[25] Megarry J considered RSC, Ord 35, r 8(1) which is in not dissimilar terms to rule 478:
“The judge by whom any cause or matter is tried may inspect any place or thing with respect to which any question arises in the cause or matter.”
- Megarry J observed:[26]
“This language could scarcely be more simple or more general: but there seems to be little in the reported cases which affords much guidance on the principles to be applied in exercising this jurisdiction.”
- In that case the parties disagreed about whether or not a view should be held of Ocean Island. His Honour stated:[27]
“… where, as in the present case, the parties disagree about whether or not a view should be held, the judge should weigh the advantages of holding a view against the disadvantages. The balance may often be hard to strike, for it will usually be difficult to express the opposing considerations in terms of each other. Considerations of time and money will often point against holding a view, whereas considerations of assistance in reaching a proper decision will often point in favour of holding a view: yet the degree of assistance in reaching a proper decision cannot readily be measured in units of time and money.”
- His Honour was dealing there with a view rather than a demonstration.
- The orders sought in paragraphs 1(a) and 1(c) of the application are clearly in the nature of a common law view. The inspection of the crane and the concrete panel are of items too large to be taken into court and tendered as exhibits. As explained by Heydon J in Evans v The Queen:[28]
“The purpose of a view was to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of the features of the things viewed, ‘to understand and weigh the oral evidence’.”
- The inspections contemplated by the orders sought in paragraphs 1(a) and 1(c) should not however be treated as evidence but rather as an aid to understanding the evidence presented in court. In Evans v The Queen, Heydon J at [200] identified this distinction:[29]
“There was a restrictive common law rule adopted in some but not other English cases, and in this Court, preventing an out of court view being used as evidence in its own right, as distinct from being an aid to understanding evidence given in court. That rule is abolished by s 54, but it was a rule which applied only to out of court activities. (footnote omitted)
- Neither rule 478 itself, the UCPR or the Evidence Act 1977 (Qld) contains any equivalent to s 54 of the Evidence Act 1995 (NSW). The common law position therefore applies and the view of the crane and the concrete panel should not be treated as evidence. The extract from Cross on Evidence quoted above would suggest that in the absence of agreement between the parties a view is not part of the evidence but merely something which enables the court to better understand the evidence given by the witnesses. It follows that I would not grant the order sought in paragraph 2 of the application in respect to the view of the crane or the panel.
- As to the order sought in paragraph 1(b) of the application this falls within the common law concept of “demonstration” in that it is a demonstration of the basic manoeuvring capabilities of the crane. As Mr Cooper submitted, correctly in my opinion, there is a mine of authority which establishes that a “demonstration” may include the operation of a machine that is directly concerned with the subject of the litigation. One example of such a demonstration is found in Buckingham v Daily News Ltd.[30] In that case, with the consent of both sides and having been invited to do so, the trial judge, accompanied by counsel and by the plaintiff, observed the operation of the relevant machine. On this occasion however, the demonstration went further in that the plaintiff showed the judge on the machine what he was doing with the tucking blades on the day on which the accident occurred. Birkett LJ stated:[31]
“…. when a judge goes to see machinery, and sees it in operation when the parties are present and everything is done regularly and in order, it is just the same as though the machine were brought into court and the demonstration made in the well of the court, so that the judge or judges may see it.”
- The demonstration of the basic manoeuvring capabilities of the crane goes beyond a mere view and constitutes evidence in the case from which the court may draw inferences. The demonstration should therefore be videoed and the video tendered so that there is a record of the demonstration should the matter proceed to appeal.
- The demonstration contemplated by the order sought in paragraph 1(d) however goes well beyond the demonstration in 1(b). Even though Mr Cooper submitted that what is contemplated is not a reconstruction, the order sought in paragraph 1(d) does have something of the nature of a reconstruction in that it seeks to “recreate the incident (whether in full of part) with a witness and testimony.”[32] The difficulty with a demonstration in circumstances where the parties do not agree to the demonstration is that there is no agreement that the demonstration to be undertaken is a true demonstration of a past event. This is particularly so in the present application where the event occurred, on the defendant’s case, in an area where the ground was not suitable for the crane to operate. The defendant’s case is that the crane was not operating on level ground and there is an issue as to how the crane and the load were being moved at the time of the collapse. In those circumstances and in the absence of the agreement of both parties, I am not satisfied that the demonstration proposed in order 1(d) of the application would assist the court in resolving questions or issues arising in the proceeding.
Conclusion
- I make orders in terms of paragraph 1(a), (b) and (c) of the application.
- I direct that the demonstration contemplated by paragraph 1(b) of the application be videoed and that the video be tendered as evidence in the proceedings.
- I order in terms of paragraph 3 of the application.
- I otherwise dismiss the application and will hear the parties as to costs.
Footnotes
[1] Fresh statement of claim filed 12 August 2014, [10], [16].
[2] Fresh statement of claim filed 12 August 2014, [16], [17].
[3] Defence filed 15 September 2014, [9], [10].
[4] Plaintiff’s outline of submissions dated 14 October 2014, [17].
[5] Defendant’s outline of submissions dated 14 October 2014, [9].
[6] Exhibit RGC-1 to the affidavit of Robert Grant Champney sworn 10 October 2014.
[7] Exhibit RGC-2 to the affidavit of Robert Grant Champney sworn 10 October 2014.
[8] Applicant’s outline of submissions dated 14 October 2014, footnote 1.
[9] (2007) 235 CLR 521, 574 [193] (Heydon J).
[10] [1975] 1 WLR 1303, 1308.
[11] Plaintiff’s outline of submissions dated 14 October 2014, [8].
[12] Evans v The Queen (2007) 235 CLR 521, 573 [190] (Heydon J).
[13] Plaintiff’s outline of submissions dated 14 October 2014, [16]-[20].
[14] Plaintiff’s outline of submissions dated 14 October 2014, [32].
[15] Defendant’s outline of submissions dated 14 October 2014, [5], [6].
[16] Evans v The Queen (2007) 235 CLR 521, 573 [190] (Heydon J).
[17] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 7th ed, 2004) [1290].
[18] Uniform Civil Procedure Rules 1999 (Qld) r 471.
[19] See Evans v The Queen, (2007) 235 CLR 521, 574 [194] (Heydon J).
[20] Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80, [5].
[21] Sheryl Jackson and Julie Pastellas, Elegals Litgators Toolkit (at 15 October 2014) Rule 478. View by court.
[22] Evans v The Queen (2007) 235 CLR 521, 573 [189] (Heydon J).
[23] (1954) 91 CLR 300.
[24] LexisNexis AU, Lunn’s Civil Procedure SA (at 15 October 2014) [17,530] Demonstrations.
[25] [1975] 1 WLR 1303.
[26] Titto v Waddell [1975] 1 WLR 1303, 1305-1306.
[27] Titto v Waddell [1975] 1 WLR 1303, 1306.
[28] Evans v The Queen (2007) 235 CLR 521, 573 [190] (Heydon J), citing Scott v Numurkah Corporation (1954) 91 CLR 300, 315 (Fullagar J).
[29] Evans v The Queen (2007) 235 CLR 521, 576 [200].
[30] [1956] 2 QB 534.
[31] Buckingham v Daily News Ltd [1956] 2 QB 534, 543.
[32] Evans v The Queen (2007) 235 CLR 521, 574 [193].