BAZINA v THOMAS COFFEY CONSTRUCTIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES PRIESTLEY, CLARKE and MEAGHER JJA 20 June 1989, 20 June 1989 [1989] NSWCA 17 Clarke JA The appellant was injured in the early hours of the morning of 11 or 12 January1984 during the course of his employment with the respondent. He was employed at the time as a labourer or assistant welder; having entered his employment with the respondent late in December of the preceding year. At the critical time he was engaged in assisting a welder named Vokaja. He claimed that his injuries resulted from two breaches of duty by his employer. The first was the duty to take reasonable care which is said to arise at common law, and the second was a breach of a statutory duty. The case was heard by Judge Thorley and a jury of four. The jury decided against the appellant on both issues of liability. In other words, it was not satisfied that he had shown the negligence or breach of statutory duty on which he relied The appellant now challenges that decision, submitting that the verdict was a perverse one or, as it is sometimes put, a verdict such that no reasonable jury properly directed could find on the evidence. It must be said at the outset that it is a rare case in which an appellant can satisfy the onus of showing that a verdict is perverse or otherwise offends in the manner I have suggested, and there is a very heavy onus on the appellant. The facts are, so far as they were proved in evidence, within a short compass. There were two witnesses only called on the issue of liability. One was the appellant; the other was Mr Vokaja. Both witnesses were called in the appellant's case, the respondent having decided not to adduce any evidence upon the issue of liability. The broad thrust of the evidence given by Mr Vokaja and the appellant - and I interpose the observation that their evidence was, in broad terms, consistent - was that they were working within a Cyclone wire mesh cage, the floor of which was situated about three metres above floor level, welding a bracket or a fixture to a bracket on the roof of the premises or towards the roof of the premises. In any event the material being welded was situated about two and a half to three metres above the floor of the cage. The actual welding was performed by Mr Vokaja. He was, so the unchallenged evidence disclosed, somewhat taller than the appellant. In order to carry out his task he located a plastic milk crate and stood with his right foot on the inverted crate and his left foot resting against the Cyclone wire wall in some manner that is not clearly disclosed by the evidence. Having reached that position, he grasped the bracket which was above his head with one hand and performed his welding. Having completed that work he then directed the appellant to clean away some slag from the welded joint As I have already remarked the appellant was somewhat shorter than Mr Vokaja. However, he endeavoured to locate himself in order to carry out his duty in a similar fashion. He stood with his right foot on the milk crate; he placed his left foot against the wire wall of the cage and then reached up in an endeavour to clean the weld. However would appear from the evidence that the weld was 2 UNREPORTED JUDGMENTS either at the extremity of his reach or beyond it. He then either reached up further or jumped up to try and grasp the bracket with one hand to gain further support and height and, failing to grasp the bracket, descended upon the crate, which tipped or fell, causing him to fall to the floor of the cage and sustain injury. It must be said that the evidence could have been clearer, but there is no doubt as to its broad thrust. That is, if the appellant's case be accepted, the appellant was required to carry out a task involving the cleaning of a weld which was situated beyond his reach and to carry out that task in a manner which was inherently dangerous. To suggest that there was nothing inherently dangerous in the manner in which he embarked on the work would, in my opinion, be quite irrational The jury, however, declined to accept that the appellant had proved facts which supported a case of negligence or a case of a breach of statutory duty, which was a duty to provide reasonably safe means of access. The question for this Court is whether it was reasonably open to the jury in the state of the evidence to reject the appellant's case. It seems to me that two issues arise. The first is whether there was any rational basis upon which the members of the jury could reject the primary evidence led by the appellant and his witness in the appellant's case. The second, if the first question is answered in the negative, is whether nevertheless it was open to the jury to conclude that these facts did not establish negligence and/or breach of statutory duty. No doubt it is true to say, as the respondent's counsel has submitted that it is open to a jury to reject the evidence of a witness called in the case. If the only evidence in this case had been that of the appellant, and it had been seriously challenged, then it would have been well within the function of a jury to decline to accept his evidence. But this was not that case. In this case the appellant himself gave evidence and was corroborated by the man who had directed him to carry out the task. Each witness gave evidence which in effect corroborated that of the other. In broad thrust the evidence of each as to the circumstances of the accident and the manner in which the appellant endeavoured to carry out his task were identical or, at least, very similar. There was no challenge by way of cross-examination or contradictory evidence to the material which was led from those two witnesses. I should emphasise the fact that there was no challenge in cross- examination to their evidence as to the manner in which the appellant was carrying out his work and the manner in which he sustained his injury. Counsel for the respondent pointed out that an examination of the cross examination of the appellant revealed he was evasive and this feature of his presentation was said to lead to the conclusion that his evidence was not credible. For the purposes of the present case it may be accepted that, in some respects, the appellant was evasive in the witness box. However the important factor in this case is that no attempt was made to suggest that he was not telling the truth when he deposed to the broad circumstances in which he met with the injury, nor was there any attempt made to challenge the corroborating witness's evidence as to that matter. In these circumstances it seems to me that there was simply no basis upon which the jury, properly directed and acting rationally or reasonably, as is sometimes said, could conclude that it should decline to accept that evidence. To have done so would have been to deny the basis upon which litigation is conducted in the Courts in this State, and that is to deny the relevance of issues. If, as is caught clear, the respondent did not seek to put in issue the circumstances URJ BAZINA v THOMAS COFFEY CONSTRUCTIONS PTY LTD (Clarke JA) 3 in which the injury occurred, then it seems to me impossible to conclude that a properly directed jury could rationally disregard the issues actually contested and decide to reject the evidence as to the manner in which the appellant sustained injury. The point bears some similarity to the point that was discussed by Gibbs J, (as he then was) in Precision Plastics Pty Ltd v Demir, 132 CLR 362 at 369. Whilst it may not be necessary to go as far as his Honour did in that case, it seems to me that the lack of any questioning of the factual basis of the appellant's case in the present circumstances leads to the consequence that no jury acting rationally could have declined to accept its broad thrust. That being so, the question arises whether the jury could, notwithstanding that evidence, have declined to find that the respondent had been negligent. On this question it was submitted that the lack of expert evidence on the issue of a reasonably practical alternative method of carrying out the work left that course open to a jury. This deficiency in the evidence provided a rational basis, according to the respondent's submission, upon which a jury could say that, even though the appellant sustained his injuries in a manner to which he attested, in the light of his failure to show that there was a safe way of carrying out the work which he had been instructed to perform it was not satisfied that he had made out a case of negligence. I think it pertinent to this issue to recite a small portion of the summing-up: "And what did the employer do? Well we have had no evidence from the defence at all whether he had any system whatever, if there was anybody employed to go round and inspect the thing to see what work was being done or to see how the men were in fact doing it. Not one single word of evidence from the defendant as to what system he had installed. Was it just left to the men to do the best they could? Well we were told that there were ladders available in the factory area generally. Where they were, how close they were to this particular job, how readily available they were to anybody simply has not been told to us and if anybody has knowledge of that position it is the defendant and you have not been told a word about it." What that direction emphasises is that the respondent sought to meet the inferences which would normally flow from the proven facts by showing that there were ladders available to the appellant in the factory and that if the appellant had availed himself of these he would thereby have obviated any risk of injury. The difficulty with this submission, which was repeated, perhaps in a less enthusiastic manner, in this Court, is that there was no evidence that the appellant himself was aware of the availability of ladders other than the ladder which he used to climb to the cage and which was described as unsatisfactory for use on the job. In any event the witness, Mr Vokaja, deposed, again without any challenge, that it would not have been safe to use a ladder to carry out this task. It is, I think, also important when considering the present submission to have regard to the summing-up in order to discern what were the issues which were contested at the trial. The appellant's case, according to his Honour, was that the employer had failed to provide him with the proper equipment with which it was desirable that the job in hand be carried out, and in particular failed to provide him with a proper platform upon which to work at a level at which he could reach the job in hand. The evidence which he led demonstrated both failure on the part of the employer to provide him with the proper equipment and failure to provide him with any platform at all. As I have earlier said, the respondent said it was open to the jury to conclude, in the absence of expert evidence, that the appellant 4 UNREPORTED JUDGMENTS had not proven that there were any means available to enable him to carry out the task at hand without subjecting himself to a risk of injury of the type to which he was actually exposed. In my opinion the nature of the task was so simple and the means of obviating the risk of injury so obvious - and here I have in mind the provision of a properly secured platform or scaffold - that expert evidence was quite unnecessary. The task was apparently a straightforward one and no reason appears why a simple platform which was secured to the cage could not be provided. The sight of scaffolding on buildings under construction is now far too familiar to suggest that a jury needed expert evidence to conclude that it would have been easy to provide the appellant with a safe means of cleaning the weld which lay out of his reach. Even if that view be wrong, what the appellant's case demonstrated was that either there had been a failure to provide him with suitable equipment or he had been required to perform a dangerous task which exposed him to the risk of injury despite the fact that no means had been devised for minimising that risk. On either basis it seems to me that in the way the case was conducted it was incumbent upon the jury to reach a conclusion that the appellant had made good his submission. There does not seem to me any rational basis upon which the jury could have said that the absence of expert evidence or the absence of express proof of the existence of an alternative means of carrying out this task defeated the inference which arose from the evidence given. That is, that he was required to carry out a dangerous task with no provision made to obviate the risk of injury which flowed from the carrying out of that task in the manner in which he, following the lead of his superior, endeavoured to perform it. I would therefore conclude in this case that the verdict is one such as reasonable jury persons properly directed could not find on the evidence. The appellant's counsel also sought to attack the jury's finding in the respondent's favour on the statutory cause of action. There was here, however, a very strong area of dispute as to whether the appellant was enjoying a means of access at the time he sustained his injury or whether, having reached his place of work, he was injured while trying to perform his work. There being this clear issue, I do not see how it could be said that the jury was unreasonable in preferring one case rather than the other. I would reject the ground of appeal that sought to challenge the verdict on the second count. Counsel for the appellant also sought to argue that there was no evidence of contributory negligence and that his Honour erred in leaving that issue to the jury. There is a question whether such a submission is relevant in the present context. Counsel sought to support the relevance of this submission by urging it in support of an application that, if the Court came to the conclusion to which in my opinion it should come in relation to the first count, the Court should direct a verdict in the appellant's favour pursuant to the provisions of s108(3) of the Supreme Court Act 1970. That course is open to the Court where it appears that upon the evidence one party is as a matter of law entitled to a verdict in the proceedings. In my opinion the conclusion that the jury has reached an unreasonable verdict does not involve a finding that the appellant is entitled to a verdict as a matter of law. The traditional relief granted to an appellant who establishes that a jury has erred in this manner is to direct a new trial. The type of case in which s108(3) is applied would arise in general only where through an error of law issues were submitted to the jury. In this instance the Court's conclusion that the case should not have been submitted to the jury would entitle it to make a final order. Although there is sometimes a fine line of determination, there is a distinction URJ —BAZINA v THOMAS COFFEY CONSTRUCTIONS PTY LTD (Meagher JA) 5 between that evidence that the case and the conclusion that a jury's verdict is perverse. That distinction still holds good and it would be contrary to a long line of authority to disregard it. In the circumstances I do not think it is open to the Court to accede to the appellant's submission in this respect. In my opinion the consequence of my initial conclusion is that the verdict of the jury cannot stand and that there should be a new trial of all issues. I would also order that the respondent pay the appellant's costs. Priestley JA I agree with what has been said by Clarke JA. There are one or two additional orders to be made. I will announce the orders of the Court after Meagher JA has spoken. Meagher JA I agree with what Clarke JA has had to say. Accordingly, the orders of the Court will be: Appeal upheld; the verdict and judgment below set aside; a new trial generally ordered; the respondent to pay the appellant's costs of the appeal; the costs of the first trial should follow the event of the second trial. Counsel for the Appellant: D JACKSON QC and C EGAN Solicitor for the Appellant: FLANNERY MURA AND COSTELLO Counsel for the Respondent: M ROBINSON and ML WILLIAMS Solicitor for the Respondent: HUNT AND HUNT