COOK v STUART MILLER AND CO PTY LTD [1988] NSWCA 26

COOK v STUART MILLER & CO PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MCHUuGH JJA 21 April 1988, 29 April 1988

[1988] NSWCA 26

APPEAL — misdirection — need to specify portion of summing-up to be withdrawn — if further direction is needed, counsel must specify with precision what direction should be given — objection falling short of the precision required by Singleton v Ffrench (1986) 5 NSWLR 425 at 440 — but objection sufficient to bring home to trial judge the direction counsel seeking. NUISANCE — public nuisance — dangerous condition on land close to public footpath — may be public nuisance if condition substantially adjoins footpath — on the facts it was a misdirection to inform jury that, if plaintiff slipped on debris on defendant's land, he could only recover in nuisance if the defendant was responsible for a condition on footpath which caused plaintiff to enter the land to avoid the condition.

ORDERS 1. Appeal allowed. 2. Verdict for defendants on nuisance count set aside. In lieu thereof order a new trial of the nuisance count. 3. The defendants are to pay the costs of the appeal, and are entitled to a certificate under the Suitors Fund Act 1951. 4. The costs of the first trial to be in the discretion of the judge hearing the new trial.

Hope JA I agree with McHugh JA.

Samuels JA At the end of the argument I was rather dubious whether counsel forthe plaintiff had sufficiently indicated to Enderby J the nature of his objection to the relevant part of the summing up and of the correction for which he was asking. I entirely agree with what was said by McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 440 and it is perfectly clear that counsel's objection and request fell far short of the precision which that statement requires.

However, having had the advantage of reading in draft the judgment prepared by McHugh JA, I think that one must concede that the objection was sufficient to bring home to the learned judge the direction which counsel was seeking so as to give his Honour the opportunity of correcting what he had said and of re-directing the jury. It is the availability of this opportunity and thus the chance of avoiding the new trial which would be entailed by a misdirection causing a miscarriage of justice, which lies at the heart of the rule which requires counsel to take the point at the trial. I am reinforced in this view by the reaction of counsel for the defendants at the trial, which McHugh JA has set out. He evidently understood that Mr Evatt had submitted to the learned judge that if the plaintiff in skirting a hazard not caused by the defendants had come to grief on some obstacle nearby on the demolition site, he might be entitled to recover. This I think is the only explanation for Mr Livermore's use of the words "but if they find those matters" and of his reference to "an interference both substantial and unreasonable."