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JJA 21 April 1988, 29 April 1988 [1988] NSWCA 26 APPEAL — misdirection — need to specify portion of summing-up to be withdrawn — if further direction is needed, counsel must specify with precision what direction should be given — objection falling short of the precision required by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." There was, therefore, a misdirection and the point was - but only just - adequately taken by counsel. Since the jury therefore retired under a misconception as to the law to be applied, there was, in this case, a substantial wrong or miscarriage occasioned by the misdirection so that this Court may order a new trial by dint of Ptl6 r 51 if it is of the opinion that its ultimate discretion 2 UNREPORTED JUDGMENTS should be so exercised. McHugh JA has pointed out that the jury's finding of negligence does not affect this question and I can see no other basis for declining to make the order. Accordingly, I agree with the orders proposed by McHugh JA. McHugh JA Lesley Thomas Cook was the plaintiff in an action before a jury in the Supreme Court in which he claimed damages against the defendants for personal injury for nuisance and negligence. The plaintiff alleged that he sustained physical injury when he tripped or slipped on debris while attempting to walk around a pool of water directly outside an area of land where the defendants were demolishing an old woolshed. The jury returned a unanimous verdict for the defendants on the nuisance count and a majority verdict for the defendants in the negligence action. The plaintiff appeals against the jury's verdict on the nuisance count on the ground that the trial judge was in error in instructing the jury that, if the object on which the plaintiff tripped or slipped was on the land occupied by the defendants, he could only succeed on the nuisance count if the defendants were responsible for the water being on the footpath and the water had forced him to go onto the land occupied by the defendants. The first question in the appeal is whether the occupier of premises adjoining a public footpath is liable to a user of the footpath for a dangerous condition which substantially adjoins the footpath The second question is whether the Plaintiff's counsel made an adequate objection to the trial judge's directions to the jury. The defendants were in occupation of, and were employed to demolish a wool shed on, land in Cowper Wharf Road, Woolloomooloo. The plaintiff and a companion alleged that on the 25th July, 1981 they were walking south on the eastern footpath of Cowper Wharf Road when they came to a pool of water about fifty feet north of the intersection of McElhone Street. The eastern footpath ran alongside the land which the defendants occupied. The pool of water commenced or finished on the eastern boundary of the footpath. However, it was open to the jury to hold that the water was coming from under a wooden beam and other rubbish which was either on the footpath or on the land occupied by the defendants. The water was at its narrowest near the land occupied by the defendants and spread out towards the roadway in Cowper Wharf Road. The plaintiff claimed that, as he went to walk around the water, he slipped or tripped on debris. In this appeal the parties accepted that it was open to the jury to find that he had slipped or tripped on a wooden plank. The plank was either just on or just off the footpath. The defendants asserted that the accident did not take place in Woolloomooloo at all. Their case was that the plaintiff had injured himself in the backyard of his Maroubra home and that his case was fraudulent. But, alternatively, the defendants claimed that, if the plaintiff was injured in Cowper Wharf Road when he slipped on a wooden plank it was not on the footpath. The defendants asserted that the plank had been part of the building which had been demolished. It was open to the jury to find that the wooden plank was no more than fifteen centimetres high and was within five to seven centimetres of the footpath. At various stages along its length and in the section near the water, the plank was partly covered by debris as was the footpath at and in front of the place where the pool of water was. Complaint is made by the plaintiff of the following passages in the trial judge's directions to the jury:- "Let me go back again to nuisance and tell you something about the law on nuisance. Essentially in the way that this case is being URJ COOK v STUART MILLER & CO PTY LTD (McHugh JA) 3 conducted, it is an obstruction of the highway. That involves you in consideration of whether that obstruction was on the highway or not. If a trespasser wanders off through some building at night and falls over a block of wood, it is not nuisance. It is only if the block of wood gets onto the highway as a result of a defendant's actions that it can become a nuisance, an obstruction." A little later his Honour said:- "You have to be satisfied it was the debris or the water that caused the plaintiff to fall or be hurt, and it has to be something that was on the footpath and something that emanated from the demolition site as a result of what the defendants were doing there." The direction of which the plaintiff principally complained was as follows:- "Tf you come to the view, without guessing, that those planks were not on the footpath and think that they caused the accident then, and nothing else caused the accident, then the plaintiff would lose on the nuisance count. You might think on the other hand, if you take the view that they were part of the demolition site in general, that they had intruded onto the footpath, as the plaintiff says and that they were the obstruction, then he could succeed on the nuisance count and similarly if you took the view that the water had come from the building site - I mean demolition site - and that it was the obstruction - because water can be an obstruction - and that the plaintiff is seeking to avoid the obstruction, tripped over the planks, even if they were not directly on the footpath, then you could well find that the obstruction, the water, if it was the result of what the defendants had done, was the nuisance and the obstruction, you could still succeed, but they are matters for you to consider." The plaintiff asserted that these passages contained misdirections because the trial judge instructed the jury that the plaintiff could only succeed on one of two bases. He could succeed if the wooden plank was on the footpath. Alternatively, he could succeed if the water was an obstruction and had come from the demolition site and the plaintiff, in attempting to avoid the water, had slipped on the plank whether or not it was on the footpath. The plaintiff complained that whether or not the plank was on the footpath and whether or not the defendants were responsible for the water on the footpath, he was entitled to succeed if the wooden plank substantially adjoined the highway and was a danger to a person using the footpath. An occupier of land who creates or permits the existence of a dangerous condition substantially adjoining a footpath or highway will be liable in nuisance for injuries caused by that condition if the creation or continuance of the danger constitutes a substantial and unreasonable interference with the rights of those who use the footpath or highway. A condition may be a nuisance to the users of a highway or footpath even though the condition is not on the highway or footpath. In Barnes v Ward (1850) 9 CB 392 the deceased, while walking along an unfinished pathway near a row of houses, accidentally fell down an excavation in the area in front of one of the houses. There was no fence to guard the area, but merely a low stone coping for the reception of iron railings. The Court of Common Pleas held that the occupier was liable in nuisance. Maule J, delivering the judgment of the court, said (at 420) that the jury "must be taken to have found that the state of the area made the way dangerous for those passing along it, and that the deceased was using ordinary caution in the exercise of the right of way, at the time the accident happened". His Lordship went on to explain the rationale of the decision saying:- it appears to us after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even 4 UNREPORTED JUDGMENTS though the danger consisted in the risk of accidentally deviating from the road; for, the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway." His Lordship also rejected (at 420) the objection that the deceased was a trespasser on the defendant's land at the time when the injury was sustained. The decision in Barnes v Ward was approved by the Court of Exchequer Chamber in Hardcastle v The South Yorkshire Railway & River Dun Co (1859) 4H & M67, although on the facts the decision went the other way. In Hardcastle the deceased drowned when he fell into a canal. He had been traversing a path. Instead of turning right he had continued straight on in the direction of the path and fallen into the canal which was seven to ten yards off the path. In delivering the judgment of the court, Pollock CB said (at 74):- "When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in the case of a horse or carriageway, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to us to be different. We do not see where the liability is to stop. A man getting off a road on a dark night and losing his way may wander to any extent, and if the question be for the jury no one could tell whether he was liable for the consequences of his act upon his own land or not. We think that the proper and true test of legal liability is, whether the excavation be substantially adjoining the way, and it would be very dangerous if it were otherwise, - if in every case it was left as a fact to the jury, whether the excavation was sufficiently near to the highway to be dangerous." The decision in Hardcastle was followed in Binks v South Yorkshire Railway (1862) 3 B & S350 and in Pearson v Cox (1877) 2 CBD 371. The passage in the judgment of Pollock CB, to which I have referred, was also quoted with approval by Viscount Cave LC in Mersey Docks & Harbour Board v Procter [1923] AC 253 at 261-262. In Hadley v Taylor (1865) 1 CP 53 the Court of Common Pleas held an occupier of premises was liable in nuisance when the plaintiff, in passing along a highway at night, fell into a "hoist-hole" which was within fourteen inches of the public way and unfenced. Erie CJ said (at 55) that the defendants "would be liable for a nuisance to the highway, if the excavation was so near to it that a person lawfully using the way, and using ordinary caution, accidentally slipping, might fall into it". In the present case, the plaintiff, as a matter of law, was entitled to have his case submitted to the jury on the basis that, if the jury concluded that the plank was dangerous to users of the highway they could hold the defendants liable in nuisance provided that the plank substantially adjoined the highway. With great respect, the learned judge's charge to the jury erred in circumscribing the plaintiff's cause of action. On the judge's charge, the plaintiff could only succeed if the nuisance was on the highway. However, the question arises as to whether counsel for the plaintiff sufficiently objected to the judge's directions. After the summing-up had concluded, Mr. Evatt, counsel for the plaintiff, said:- URJ COOK v STUART MILLER & CO PTY LTD (McHugh JA) 5 "We would submit that your Honour should direct the jury that the defendants would be liable even if they came to the conclusion that the accident did not happen on the footpath, but if it happened near the footpath on the building site, because the plaintiff is required to walk there to avoid the rubble and the water. HIS HONOUR: I think I came pretty close to saying that. MR EVATT: If they think that the plaintiff innocently strayed on to the building site in order to avoid the danger on the roadway, or the footpath, the defendant would be just as liable." I do not think that this passage shows that counsel was submitting that his client was entitled to a verdict if the jury found that the accident happened off the footpath independently of whether the defendants were responsible for the water or rubble on the footpath After the jury had retired for some hours, however, they asked a question which read, "Please clarify the definition of nuisance in relation to the water on the footpath" His Honour informed counsel that "subject to hearing what you say" he had in mind to instruct the jury:- "\....that it means that they have to be satisfied that the water came from the demolition site, I think it is coming from a consequences of the defendant having the control and supervision of the demolition work being done there, and that they also have to be satisfied that it blocked the footpath and was the cause of the plaintiff slipping or tripping and/or falling, as he tried to move around the water." Mr. Evatt said that he agreed with all of that "except it should be a cause and not the cause" After a further short discussion, Mr. Evatt said:- "The only other matter is that, your Honour, the jury could find for the plaintiff even if they came to the conclusion or they were not satisfied the water came from the building site, for this reason, that there is water on the footpath for one reason or another, either due to the acts of the defendant or other causes, to get around the puddle the plaintiff slipped or tripped on wood or rubble nearby. So it does not necessarily follow -" A little later his Honour said:- Tt seems to me if they came to the view that in trying to get around a puddle of rainwater, shall we say, on the footpath, he stepped on to a piece of the original building, something that was not on the footpath Then you would lose merely by the fact that the wall had been removed. Normally when you have a wall, a person might bump a shoulder against it A little later Counsel for the defendants said:- "The fact is that, the way that the question is phrased what they seek is clarification of the definition of nuisance. I would ask your Honour to direct them in no way differently from the way you have, but if they find those matters, they must then find, if it amounts to an interference, it must be both substantial and unreasonable." His Honour said "that" can be noted but he did not propose to say "that" to the jury. The jury then returned. His Honour directed them as follows:- "You have to be satisfied that the water came from the demolition site and that it is coming there from the demolition site on to the footpath, was a consequences of the defendants having the control and supervision of the demolition work that was being done there. In other words that in something they did, they caused in a way, the water came as a result of what they were doing there. You also have to be satisfied that that water that blocked the footpath to the extent that it was a cause for the plaintiff to trip or slip as he tried to move around the water." 6 UNREPORTED JUDGMENTS With respect, his Honour's instruction to the jury was again in error since the plaintiff was entitled to succeed whether or not the defendants were responsible for the water being on the footpath. As a matter of law, it was open to the jury to conclude that the wooden plank, although not on the footpath, was dangerous to a user of the highway who attempted to walk around the water. In truth, the existence of the water was quite irrelevant. If the water had not existed and the plaintiff had accidentally injured himself on the wooden plank while walking along the footpath, he was entitled to have his case submitted to the jury on a nuisance count: Barnes v Ward; Hadley v Taylor. The plank and debris so close to the footpath were each of them a hazard to users of the footpath or, at all events, a jury might think so I have come to the opinion that counsel made an adequate objection to his Honour's last direction to the jury. His Honour invited submissions from counsel concerning the instruction which he proposed to give to the jury in answer to their question. Mr. Evatt said that the jury could find for the plaintiff even if they were not satisfied that the water came from the building site if, to get around the puddle, the plaintiff "slipped or tripped on wood or rubble nearby". The failure of counsel for the plaintiff to raise the point with greater precision is to be deplored. Counsel should have asked his Honour to withdraw his direction. He should also have asked his Honour to give a direction that the plaintiff was entitled to succeed if he had slipped on a wooden plank or rubble on the defendants' land even though the defendants were not responsible for the water being on the footpath provided the plank or rubble substantially adjoined the footpath. In Singleton v Ffrench (1986) 5 NSWLR 425 at 440 I said:- "Tf a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give." However, as unsatisfactory as the material before us is, I have come to the conclusion that his Honour would have understood counsel for the plaintiff to be objecting to what he was proposing to put to the jury. If this conclusion is correct, then objection was properly taken. The problem with the submission of counsel in the present case is that it is difficult for this Court to know whether counsel was making a comment or engaging in discussion of the relevant law or was really making an objection. My doubt about the submission is not lessened by the fact that the objection was taken at the heel of the hunt and probably as an afterthought. In the circumstances, however, I think that sufficient objection was taken to what was a quite vital aspect of the case. If the jury had been informed that the plaintiff was entitled to succeed if he had slipped on the wooden plank whether or not the defendants were responsible for the water, then the plaintiff may well have succeeded on the nuisance count. Accordingly, I am of opinion that his Honour did misdirect the jury and that timely objection was taken in accordance with Pt51 R 16 of the Court of Appeal Rules. The effect of the negligence verdict. Counsel for the defendants submitted that in this case any misdirections concerning nuisance were irrelevant because the defendants succeeded on the negligence count. It would usually be a sufficient answer to such a submission to say that, although the issues in negligence and nuisance actions are similar, they are seldom identical. In particular in a nuisance action the onus is on the URJ COOK v STUART MILLER & CO PTY LTD (McHugh JA) 7 defendant to exculpate himself from interference with the plaintiff's comfort by establishing that his activity was not unreasonable. However, without objection from the plaintiff in the present case, the learned judge directed the jury that the onus was on the plaintiff in respect of all issues under both counts. On this hypothesis counsel for the defendants invoked the dictum of the Judicial Committee in Goldman v Hargrave [1967] 1 AC 645 at 656-657:- "As this Board has recently explained in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No. 2) [1966] 3 WLR 498 the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive. The present case is one where liability, if it exists, rests upon negligence and nothing else; whether it falls within or overlaps the boundaries of nuisance is a question of classification which need not here by resolved." However, the summing-up of the learned judge did not treat the case for the plaintiff on nuisance as depending "upon negligence and nothing else". At the beginning of his summing-up, his Honour said:- "The basis upon which the plaintiff brings his action is that he says that on 25 July 1981 he was exercising his right as an ordinary Pedestrian walking along the footpath adjoining Cowper Wharf Road, woolloomooloo, and he found the footpath obstructed and obstructed by what the defendants had done, and he says to you that that obstruction Caused him to fall which amounts in law to what the, law calls nuisance, and he also says that the obstruction, even if it did not amount to what the law calls nuisance, was the result of the negligence of the two defendants. That means that he puts his claim for damages on one of those two alternative headings, one nuisance that is the obstruction of the footpath by the defendants, and secondly in the alternative, that the obstruction, that the situation there was the result of negligence by the defendants in the work they were doing on the adjoining block of land, and they were guilty of negligence there." This distinction was maintained throughout the summing-up. Accordingly, the verdict for the defendants on the negligence count is not a ground for refusing to order a new trial on the nuisance count. The verdict for the defendants on the nuisance count should be set aside There should be a new trial limited to the nuisance Count. The defendants must pay the Costs of the appeal, But they are entitled to a Certificate under the Suitors' Fund Act 1951. The costs of the first trial are to be in the discretion of the judge at the new trial. 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.