Mr Day was injured whilst operating a J-Bar in the ski fields at Guthega. Mr Day was allegedly struck by an errant skier in the course of his employment as a consequence of his then employer, Perisher Blue Pty Ltd (Perisher Blue), breaching its duty of care to Day by failing to provide a safe system of work.
In its judgment, the NSW Court of Appeal overturned the decision of the District Court in favour of the defendant. The main ground for the decision related to the conduct of Perisher’s solicitors and its witnesses prior to trial and ultimately referred the matter to the Legal Services Commissioner.
During the course of the trial, it emerged that the witnesses for Perisher Blue, prior to the trial, had communications with each other, including the solicitors for Perisher Blue, with respect to the form and content of the evidence they were to give the Court.
During the course of cross-examination, Perisher Blue’s witness, Mr Laing conceded that he had discussed his evidence with four of Perisher Blue’s other witnesses and one witness told him when the incident occurred.
Also during the course of cross-examination it became apparent that Perisher Blue had written to their witnesses directing the witnesses to be familiar with the other witness statements and Perisher Blue had held conferences with witnesses where the solicitors for Perisher Blue engaged in so called ‘coaching of their witnesses’.
After the plaintiff, Mr Day had closed his case, Mr Laing, the defendant’s first witness was called and the following took place in cross-examination with the barrister for Mr Day, Michael McAuley:
“Q. Have you refreshed your memory before giving evidence today? A. I have read over the statements that I gave, yes.
Q. Have they helped you to remember? A. Yes. Yes, they have.
Q. Are you giving evidence now based on your own recollection and based on what you read of those statements? A. Yes, I am.
Q. Have you those statements with you? A. No, I do not.
Q. Where are the statements? A. They’re in my hotel room.
Q. Where’s your hotel room? A. Across the road.
Q. Would you be able to bring those statements back to the court at 2 o’clock? A. Yes, I believe I could
McAULEY: Q. So, Mr Laing, were you able to find those documents over the lunch? A. Yes, I was, sir.
Q. Could you just hand those to the court officer. I seek access to them, your Honour.
HIS HONOUR: Yes, I give you access to them.
McAULEY: Thank you, your Honour.
Q. Did you read each of these documents? A. Yes, I did.
I’m sorry, your Honour, I didn’t realise.
HIS HONOUR: Yes, Mr McAuley.
McAULEY: Q. Your evidence is based on each of those documents? A. Yes, it is.
Q. You’ve refreshed your memory from them. A. Yes, I have.
Q. The documents have provided you with some guidance as to how you should give your evidence. A. Yes, they have.
Q. Where have you been staying? A. Whilst in Sydney?
Q. Yes. A. At a hotel across the road.
Q. What’s the name of it? A. It’s the Travelodge, and prior to that another hotel just the other side of the park.
Q. You’ve been here since Monday? A. Sunday —
Q. Sunday night. A. Yes.
Q. You’ve been staying there at the Travelodge, and where else? A. I can’t recall the name of the first hotel.
Q. You’ve been staying there with some other witnesses, haven’t you? A. Yes, correct.
Q. You’ve discussed your evidence with them. A. Yes.
Q. You certainly discussed your evidence with Mr Bevin, did you? A. Yes.
Q. You discussed your evidence with Jai Palmer. A. Yes.
Q. You discussed your evidence with Darrel Day [Dean]. A. Yes.
Q. You’re aware of what they’re going to say, aren’t you? A. Not really, no.”
In the course of further cross-examination, Mr Laing conceded that he had discussed his evidence with a Mrs Jack, Jai Palmer, Darrel Dean and Mr Bevin; with Jai Palmer “Only over the last four days”, with Chris Bevin “Just over the last four days”. This interchange took place:
“Q. They’ve told you what they’re likely to say, haven’t they? A. Depends on what they’re asked, I would assume.
Q. Yes, but they’ve told you what they remember about this; what they know about this, haven’t they? A. Yes.”
A little later the witness conceded that Darrel Dean suggested to him when the incident occurred.
The Court allowed Mr Day’s appeal, ordered a retrial and that Perisher Blue pay Mr Day’s costs. The Court also referred the matter to the Legal Services Commissioner to investigate the conduct of Perisher Blue’s solicitors.
In coming to their decision, the Judges stated the following:
“It is long been regarded as proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. What was done was improper.”
The decision of Day v Perisher Blue Pty Ltd  NSWCA 110 can be read in full here: https://www.caselaw.nsw.gov.au/decision/549fbaa43004262463b9d036
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