Appropriate Concessions: Protecting your client’s interests in matters brought by self-represented litigants, and other comments on the NSW District Court’s judgment in Connolly v Tweed Shire Council

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By Partner, Michael Down and Lawyer, Casey Thomas

Judge Priestley of the District Court of New South Wales recently delivered his judgment in the matter Connolly v Tweed Shire Council [2022] NSWDC 29. Mills Oakley represented Tweed Shire Council in these proceedings which were listed for hearing in Lismore last month.

This case concerned a Plaintiff who fell into the water after the mechanical failure of a gangplank connecting a fixed jetty to two pontoons (“the wharf”). The Plaintiff alleged the wharf tipped to one side as a result of a missing structural pin, causing him to fall into the water where his leg was pinned, holding him underwater for some time. The Plaintiff claimed to suffer physical and psychiatric injuries as a result of the incident and brought public liability proceedings against Council under the Civil Liability Act 2002 (NSW) (“the CLA”).

At various stages throughout the proceedings the Plaintiff was legally represented, however his solicitors ceased acting prior to the hearing and he was self-represented at the trial. The Court granted leave for his wife to assist him with the conduct of his case, and she lead the evidence in chief from the Plaintiff. The Plaintiff was the only witness in his case.

Allegations of negligence were made against Council in the Plaintiff’s written pleadings, which were directed at a failure to maintain and inspect the wharf. Despite this, limited evidence was brought in support at the hearing.

While every advocate representing a defendant has their client’s interests at the forefront of their mind, it can be a difficult task to balance the need to defend a claim while assisting the Court in a hearing where a Plaintiff is self-represented. In light of the principles outlined in section 56 of the Civil Procedure Act 2005 (NSW), i.e. the overriding purpose of facilitating the just, quick and cheap resolution of proceedings, the bench will often appreciate Counsel who are selective in their objections, particularly on procedural matters. How this unfolds in any given matter varies. In these proceedings, Counsel briefed by Mills Oakley, Daniel Hanna, was able to assist the Court by providing a chronology as an aide-memoire (a document which is considered by the Court but not formally tendered into evidence). The chronology proved a useful tool given the Plaintiff’s testimony was unclear and at times, bordered on irrational.

In cross-examination, the Plaintiff sought to tender late evidence, being photographs of a missing pin which was accepted by Council’s witness, an ocean engineer, to have caused the failure of the wharf. Counsel’s decision to refrain from objecting to the Plaintiff’s late tendering of this evidence is an example of a decision where Counsel can both respect a self-represented litigant’s unfamiliarity with Courtroom procedures and simultaneously advance the defence of a claim.

The evidence alluded to above concerned photographs of a missing pin which was accepted by Council’s witness, an ocean engineer, to have caused the failure of the wharf. While this evidence would normally have been tendered before the Plaintiff concluded his case (in examination-in-chief), by not objecting to the photographs being tendered, Council was not prejudiced for the condition of the pin appeared to be without fault, leading to the conclusion human intervention would likely have been necessary for the pin to have been removed prior to the incident.

The above factual conclusion was relevant to liability as Judge Priestley found if the pin were to have been removed prior to the incident, it would have only occurred within one or two days prior to the incident. This meant even a monthly inspection of the wharf by Council may not have picked up on the risk of harm. Judge Priestley found Council’s duty of care was established however none of the particulars of negligence were made out.

While the decision is unlikely to be overturned on liability, it is interesting to consider the approach adopted by the Court in relation to the assessment of damages for non-economic loss. Damages were awarded despite the Plaintiff not serving expert evidence of him having suffered a recognised psychiatric illness.

Judgment was entered for Council and the matter has been listed for the parties to make submissions on costs.

For further information, please do not hesitate to contact us.

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