ISON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, SAMUELS JA and PRIESTLEY JA 11 December 1989 [1989] NSWCA 106 PRACTICE & PROCEDURE — there is no power in s 107 to enable the Court of Appeal to determine an issue of negligence after a trial by jury in the Court (see s 75A) and thus no power to try an issue of contributory negligence. JURY — discussion of circumstances in which Court of Appeal may order that a jury be dispensed with for the purpose of trying issues in a new trial for which a jury was originally requisitioned. Samuels JA. This appeal has been before the Court before on 6 September last. It arises out of an accident which befell the plaintiff, the present appellant, when he was alighting from a suburban railway train at Blacktown Station on 17 August 1979. His case was, in short, that the train commenced to move before the doors were closed and he, in circumstances which I will not endeavour again to give in detail, attempted to leave the train through the closing doors but was caught and trapped and as a result sustained serious injury. The appellant brought an action against the State Rail Authority which came to trial before Grove J and a jury on 16 June 1988. We were told today that it was the plaintiff who had requisitioned the jury. At the trial there was a question whether there was evidence to go to the jury of the plaintiff's contributory negligence. Counsel for the plaintiff submitted that there was not and the learned judge accepted that argument and took theissue from the jury. The jury found a verdict for the plaintiff in an amount of damages which ultimately represented judgment of some $143,000. The plaintiff appealed on the ground that the jury's assessment of damages was inadequate and the defendant, the State Rail Authority, filed a cross-appeal on the ground that the issue of contributory negligence should have been left to the jury. We came to the view that both the plaintiff and the defendant had established their contentions. The assessment of damages, in my opinion, was grossly inadequate and it seemed to me that there was evidence upon which the tribunal of fact could conclude that the plaintiff had failed to take reasonable care for his own safety and that that failure had caused or contributed to his damage. In that state of the case the question was what orders should the court make? In the ordinary course the obvious order would be to send the matter back for a new trial on all grounds. It is, I think I may say, impossible to try an issue of contributory negligence without at the same time trying the issue of negligence. The reason is that in order to assess the degree of fault of which a plaintiff may have been guilty, it is necessary to estimate the extent to which the plaintiff and the defendant have respectively failed to satisfy the duties which rested upon them. That comparison obviously cannot be made unless the two issues of negligence and contributory negligence are in debate. 2 UNREPORTED JUDGMENTS We, however, are conscious of the questions of delaywhich might very well emerge if there were another trial by jury. While indicating the orders that we had in mind to make we gave an opportunity to the plaintiff to make an application which might enable this court to determine all the outstanding questions itself. Today we have heard Mr Gross QC's argument in support of the contention that there is power for us to decide the issues of negligence and contributory negligence and to assess the damages. He referred us to American authority which manifests principles which have been invoked there to enable appellate courts to do what he urges us to do and, with his usual candour, has referred us to English and Australian authority which is quite the other way and which indicates that principles of that sort have never been applied here. As the Chief Justice said during argument, that is not surprising, because s 107 of the Supreme Court Act constitutes the Legislature's response to this problem and it is in the terms of that provision that any remedy of the kind for which Mr Gross contends must be found. He put to us an argument which, I must confess, for myself I found growing in its seductive qualities but in the end inadequate to achieve its purpose. He suggested that one could, and I will put this shortly, regard s 107 as comprehending not merely the assessment of damages but the reduction in a total sum of damages to which a plaintiff, innocent of fault, might be entitled, which would have to be deducted for contributory negligence. Thus, under s 107, this Court could assess damagesand also assess reductions to be made for contributory negligence. I am dubious that that view of the section is sustainable, but even if it were one could scarcely stretch s 107 so far as to comprehend within its terms the power to determine an issue of negligence. For the reasons which I have mentioned, if we were to perform this exercise we would have to direct ourselves to conduct a trial, as it were, on all issues including negligence and I do not see how that could be achieved under s 107. Speaking for myself, I have a good deal of sympathy for the plaintiff. Many years have gone by since the injury and his affidavit of 26 September 1989 filed in support of the motion which we are now hearing indicates that he has difficulties of no small measure which are likely to be aggravated by further delay in the resolution of his case. If one turns to s 75A in order to see whether that provision might enable this Court to deal with the matter itself, one is of course brought up by subs 2(c) which excludes from the section 'a trial with a jury in the Court'. Accordingly, the real problem in the case is the fact that this was a jury trial. I repeat, although it is not really part of the problem but nonetheless part of its background, the jury was requisitioned by the plaintiff who would now wish to rid himself of what has turned out to be a procedural encumbrance. Mr Gross ultimately put to us that we should dispense with the jury, and if that were done we should send the matterdown for trial before a judge alone which would be quicker and which would bring the matter to conclusion more rapidly. We pointed out to counsel at the beginning that if we were to expedite this case it would be possible to get a trial by jury in March 1990 in these special circumstances. But, of course, if the trial were to be heard by a judge alone, and if we were to order it to be heard in vacation, then a greater degree of expedition would be achieved. The recent decision in this Court in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 has made it very clear that it is not permitted to judges to dispense with juries basing themselves merely upon real or supposed general URJSON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) (Gleeson CJ) 3 advantages which one type of trial enjoys over the other. To dispense with a jury which is a tribunal which has statutory support in a group of sections in the Act, there must be something in the case before the court which makes that course desirable in the interests of the proper administration of justice. In the present case one has a seriously injured plaintiff who was injured ten years ago and who faces a new trial on all issues by reason of a mis-direction, as we have respectfully found, of the learned trial judge in a case in which, to my mind, there is a strong element of negligence. The affidavit evidence to which I have referred indicates that the plaintiff is suffering some real psychological and financial detriment by reason of the delay. It will be possible, as I have said, to obtain a trial during the impending vacation if we dispense with the jury. In allthose circumstances it seems to me, bearing in mind also that a non-jury trial will itself be likely to be quicker and for that reason less expensive. In considering that I am applying myself only, of course, to this plaintiff's independent circumstances without regard to any considerations of a more general nature. Having regard to all these matters it seems to me that this is a proper case in which to dispense with the jury. That being the case, I would merely repeat the orders that we indicated we would make on the last occasion which included an order for a general new trial and to add that we dispense with the jury under the precise words of s 89; that is to say, we order that the issues in the case be tried without a jury. We should indicate to the Registrar of the Common Law Division that this, in our opinion, is a proper case to be tried in vacation and direct the parties to do what is necessary to achieve that. In all the circumstances I would order that the costs of this motion should be costs in the trial. Gleeson CJ. I agree. Priestley JA. I fully agree with the substance of what Samuels JA has said on every point with which he has dealt, subject only to a very minor qualification in regard to one observations which he made about its being impossible to try an issue of contributory negligence without at the same time dealing with the issue of negligence. The qualification is that it seems to me that it is not necessarily impossible forsuch an issue to be tried in the absence of the other, but it is likely to be too difficult to try a contributory negligence issue separately in most cases without imposing very carefully drawn conditions. In the present case I do not see that conditions could be conveniently imposed which would permit the one issue to be tried without the other. In the result, the view that I have on this particular point is probably different from that of Samuels JA only in the matter of emphasis. I agree with the orders that are proposed. Gleeson CJ. The order of the Court will be as proposed by Samuels JA. (Mr Kenny QC addressed as to costs) GLEESON CJ: Attention has been drawn to the conditional nature of the orders that were made in this matter on the last occasion. In order to make the order of the court that is made today conform both to the conditional order that was made on the last occasion and the reasons just delivered by Samuels JA and agreed in by Priestley JA and myself, I would propose that we now make the following orders. The appeal is dismissed. The cross-appeal is allowed. The Court orders that there be a new trial of the action generally and that the issues in the new trial be determined without a jury. 4 UNREPORTED JUDGMENTS The Court also orders that the hearing of the new trial be expedited and intimates that its view is that this is a proper matter to be heard, subject to the exigencies of thelist, in vacation. The appellant is to pay the respondent's costs of the cross-appeal and it is noted that the time spent in relation to the hearing of the appeal was taken up in connection with the cross-appeal and that both parties agree that there were no separate costs relevantly incurred in relation to the appeal. The appellant is to have, in relation to the costs of the cross-appeal, a certificate under the Suitors Fund Act. The costs of the motion which was dealt with today are to be costs in the new trial. Appeal is dismissed. The cross-appeal is allowed. The Court orders that there be a new trial of the action generally and that the issues in the new trial be determined without a jury. The Court also orders that the hearing of the new trial be expedited and intimates that its view is that this is a proper matter to be heard, subject to the exigencies of the list, in vacation. The appellant is to pay the respondent's costs of the cross-appeal and it is noted that the time spent in relation to the hearing of the appeal was taken up in connection with the cross-appeal and that both parties agree that there were no separate costs relevantly incurred in relation to the appeal. The appellant is to have, in relation to the costs of the cross-appeal, a certificate under the Suitor's Fund Act. The costs of the motion which was dealt with today are to be costs in the new trial. Counsel for the appellant: B GROSS QC/J N WILLIAMS Solicitors for the appellant: LYONS and LYONS Counsel for the respondent: P J KENNY QC/P R STERNBERG Solicitors for the respondent: MR F D THOMPSON