KATICA KAJIC vy NEWCASTLE WORKERS' CO-OPERATIVE CLUB LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and HANDLEY JJA 3 October 1990, 3 October 1990 [1990] NSWCA 100 KEY WORDS: NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — ASSESSMENT OF DAMAGES NEGLIGENCE — female plaintiff slips on slippery highly polished dance floor whilst attending concert — slips on way to toilet — sues owner of venue for damages in negligence — jury returns verdict in favour of the plaintiff — defendant challenges verdict on appeal — also challenges finding by jury that defendant had not proved contributory negligence — held (Handley JA; Kirby P and Samuels JA concurring) (1) There was ample evidence of negligence to sustain the jury's verdict; (2) There was ample evidence upon which the conclusion of the jury on contributory negligence could be supported; (3) Accordingly, challenge to the verdict and the judgment which followed, dismissed. DAMAGES — left wrist — female aged 51 at trial — fracture of ulna bone — painful injury — off work for 14 weeks — jury returns verdict of $10,000 — agreed out of pocket expenses $2,200 — agreed wage loss $3,669 — general damages therefore allowed is $4,130 — held (1) The verdict was so low as to require the setting aside of the verdict by the Court; (2) As there had been no attack on the credit of the plaintiff at the trial the Court could safely proceed to a reassessment; (3) Upon a reassessment, judgment of $26,458 substituted. ORDERS (1) The cross-appeal be dismissed with costs. (2) The appeal be allowed with costs. (3) The judgment which Mr Justice Finlay directed to be entered in favour of the appellant following the verdict of the jury be set aside. (4) In lieu thereof judgment be entered by this Court in favour of the appellant in the sum of $26,458. (5) That substituted judgment to take effect on 26 May 1989. (6) The respondent must pay the costs of the appellant of the trial in accordance with the Rule of the Supreme Court. (7) In respect of the costs of the appeal, the respondent if so qualified is to receive a certificate under the Suitors' Fund Act. Handley JA The Court has before it an appeal by the plaintiff and a cross-appeal by the defendant arising out of an action which was heard by Mr Justice Finlay and a jury at Newcastle. The plaintiff, Katica Kajic, sued the Newcastle Workers' Co-Operative Club Limited for injuries she sustained when she fell at the Club premises on Sunday night, 21 July, 1985. That evening the Club held in its upstairs auditorium a concert featuring a singer well known in Yugoslavia who came from the plaintiff's home town. A large number of people paid to patronise this function. The plaintiff, who had herself been born in Yugoslavia of course, attended this function with a number of her friends and their husbands who were also of Yugoslavian origin. 2 UNREPORTED JUDGMENTS The plaintiff was a widow and was otherwise unaccompanied at the function. The party had booked Table 8, which was located in front of the stage on what was normally the Club's dance floor. During an interval the plaintiff and her three female friends left the table and proceeded to walk between the table in question and adjoining tables to the front of the stage where they turned right to proceed across the dance floor intending to go to the women's toilet. At that stage according to the plaintiff's evidence, her feet slipped in front of her. She put out her left arm to break her fall and sustained a nasty fracture of the wrist joint in her left hand. The plaintiff sued the Club in negligence to recover damages for her injuries which resulted from this accident. Mr Justice Finlay left four question to the jury and the appeal papers include a document which sets out these questions. Question | was whether the plaintiff had proved the defendant negligent. Question 2 related to the quantum of the plaintiff's damages. Question 3 was whether the defendant had proved the plaintiff guilty of contributory negligence, and Question 4 asked what proportion were the respective responsibilities of the plaintiff and the defendant in the event that the jury were to answer Question 3 favourably to the defendant. The jury answered Question | "Yes" and assessed the plaintiff's damages at $10,000 and answered Question 3 "No". That is, they found that the defendant had not proved the plaintiff guilty of contributory negligence. The plaintiff has appealed seeking orders setting aside the jury's verdict on damages and for this Court to reassess those damages pursuant to its power under the Supreme Court Act. The defendant for its part cross-appealed contending, according to the Notice of Appeal, that there was no evidence of negligence fit to be submitted to the jury and seeking the entry of a verdict for the defendant in the action. In the alternative, orders setting aside the jury's verdict in favour of the plaintiff on the issue of contributory negligence and for a new trial on liability and necessarily, also damages. It is convenient first to deal with the defendant's cross-appeal which attacks the jury's findings on liability. The plaintiff sued the Club as the occupier of the Club's premises for breach of the general duty of an occupier to take reasonable care for the safety of persons such as the plaintiff lawfully entering the premises. The plaintiff's case was that the Club's dancing floor on which she fell was highly polished and very slippery such as to be dangerous, particularly for women wearing high-heeled shoes, such as might be expected on a social occasion of the kind organised by the Club on the night in question. No application was made to the trial judge to withdraw the issue of negligence from the jury on the basis of lack of appropriate evidence and, in my opinion, it is clear that there was ample evidence of negligence for the consideration of the jury. The next question is whether the jury's conclusion that the plaintiff had established actionable negligence was unreasonable in the sense that it was against the weight of the evidence and such that it was not open to a jury acting reasonably. In my opinion, there is no substance in this attack on the jury's verdict. There was uncontradicted evidence from a number of witnesses who were not cross-examined on this issue that the floor was highly polished and in these circumstances there clearly was a foreseeable risk of injury to persons such as the plaintiff. UWATICA KAJIC v NEWCASTLE WORKERS' CO-OPERATIVE CLUB LIMITED (Handle$ JA) Next the defendant attacks the jury's answer to Question 3 which asked whether the defendant has proved the plaintiff guilty of contributory negligence. The jury answered this question favourably to the plaintiff. The defendant has submitted that the jury's answer to this question was against the evidence and the weight of the evidence and as such it was not reasonably open to the jury. Again, in my opinion, there is no substance in this attack on the jury's verdict. Short of abandoning the social outing with her friends to hear the concert presented by this Yugoslavian singer, there was nothing that the plaintiff could reasonably do to look after her own safety which she failed to do. She said in her evidence that she walked carefully on the dance floor and this evidence was not challenged in cross-examination. When she and her friends proceeded during the interval to walk to the ladies toilet, they successfully negotiated that part of their journey which took them between rows of tables where support would have been available from chairs to the right or the left. The plaintiff actually fell when she was in the open space immediately in front of the stage where support from chairs was not readily available. She was asked in cross-examination: "Q. Knowing that the floor was slippery and dangerous, you got up and walked across it again on your way to the toilet? A. Yes, but I have been careful now." There was no question that the plaintiff's method of moving across the dance floor in the direction of the toilet was itself unreasonable in that she walked too quickly or in some obviously dangerous way. The only suggestion is that she should not have walked at all over the dance floor. In my opinion, in a case such as this where the defendant has invited members of the public, including the plaintiff, to attend a concert on its premises and fails to make these premises reasonably safe, in the interests of persons such as the plaintiff a finding of contributory negligence is not open merely because the plaintiff does not abandon the concert and go home. Given that she walked carefully, on her own evidence, across the dance floor and nevertheless slipped, there was in my opinion probably no evidence of contributory negligence to go to the jury, but, even if there was, the jury's verdict rejecting the defence of contributory negligence certainly cannot be shown to be in any way unreasonable or against the evidence and the weight of the evidence. In my opinion, therefore, the cross-appeal should be dismissed. The plaintiff for her part attacks the jury's verdict on the issue of damages as being unreasonably low and outside any reasonable range in the light of the evidence. The trial judge directed the jury without objection that they must include in any verdict they entered the sum of $2,200 by way of medical and hospital expenses which had been agreed. There was no challenge to that direction, nor was his Honour asked to redirect the jury on that matter. His Honour also directed the jury that they must include in any award an amount for the plaintiff's loss of wages which had also been agreed at the sum of $3,670. There was no challenge to that direction, nor any application for a redirection. In the result the verdict returned by the jury in favour of the plaintiff for $10,000 included agreed special damages of $5,870 leaving only $4,130 for the award of general damages. The plaintiff submits that this award for general damages is unreasonably low and such as to call for the intervention of this Court. 4 UNREPORTED JUDGMENTS The trial judge without objection reminded the jury that the plaintiff had not been cross-examined as to credit, that her complaints of pain, discomfort and disability had not been challenged as being untruthful or exaggerated, and that it had not been suggested that she had remained away from work one day longer than was reasonably necessary as a result of the injuries she sustained in the fall. Moreover, the only medical evidence called in the case was called on behalf of the plaintiff and that was the evidence of Dr Woolard. Dr Woolard had seen the plaintiff twice; firstly in April 1986 some nine months after her injury and again in October 1988 some seven months before the trial. As I have said the defendant called no medical evidence and the cross-examination by the defendant of Dr Woolard related to one matter only, namely, the causal relationship between the moderate carpal tunnel syndrome which he found on the second occasion and the plaintiff's original injuries. There is no need for me to refer to the doctor's findings on the initial examination because these were necessarily superseded by his findings on the follow-up examination in October 1988. The doctor did have available to him the original x-rays taken of the plaintiffs wrist at the time of her admission to hospital on the night of the injury. The history recorded by Dr Woolard on the occasion of his second examination was that the plaintiff experienced pain in her left wrist if it was used excessively and also when the weather was cold, but while she was able to cope with her work, she could not knit or crochet as she used to do prior to the injury. In some other respects the condition was basically the same as the doctor had found on his original examination. However, on the second occasion he did find that there was present carpal tunnel syndrome in the left wrist which he associated with the plaintiff's fracture at the time of the original injury. He also received a history of complaints of pain at night and some parasthesia, which is a feeling of numbness and a tingling sensation, in the left wrist. He thought that there would be an accelerated degenerative change in the left wrist and that the future with regard to the carpal tunnel syndrome was uncertain, although not such as to warrant surgical intervention. The plaintiff was fifty-one at the time of the trial and would have had a life expectancy of something of the order of twenty-five years. It is apparent that the injury to her left wrist and the residual disability which may well deteriorate with age and degenerative changes has caused a modest, but significant degree of personal disability for the plaintiff in one of the very important limbs in the human body, one that is used by a woman regularly for work and for housework and for other purposes, such as the knitting and crocheting that she referred to in her evidence. The plaintiff is not yet a grandmother, but in years to come she may become a grandmother and the absence of full capacity in her left wrist may well have some continuing effect on her ability to look after and enjoy any grandchildren that she may be blessed with. In these circumstances, in my opinion the jury's award of a little over $4,000 by way of general damages is unreasonably low and such as to require the intervention of this Court. The next question is whether this Court should exercise its statutory power to reassess the damages or whether, as was submitted by counsel for the defendant, the matter must go back for reassessment by another jury. WATICA KAJIC v NEWCASTLE WORKERS' CO-OPERATIVE CLUB LIMITED (SamuelS JA) In this case where there has been no challenge to the credibility of the plaintiff, and there was no issue at the trial involving conflicting medical evidence, this Court is in a position to properly exercise the statutory power to reassess damages and there is no imperative necessity or overriding requirement in the interests of justice for the matter to be sent back for retrial by a new jury. I would propose, therefore, that this Court proceed to reassess the damages for itself. Counsel made helpful submissions to us as to the range of possible verdicts by way of general damages for injuries such as those sustained by this plaintiff. In my opinion, it would be appropriate for this Court to assess general damages in the bottom half of the range and, doing the best I can, I would propose that a verdict for $18,000 by way of general damages be substituted for the jury's allowance of a little over $4,000 under that head of damage. Half of this amount should be apportioned to the past and carry interest. Accordingly, the balance should be apportioned to the future and not carry interest. In my opinion, therefore, the jury's verdict of $10,000 should be set aside. There should be substituted a verdict including interest for $26,458 made up of agreed out-of-pockets and loss of wages of $5,860, general damages of $18,000 and interest on past general damages of $2,598. Mr Bartlett also asked for interest on the past loss of wages. No such application had been made at the trial and the matter was not covered by either the Notice of Appeal or the plaintiff's written submissions lodged with the Court and served on the defendant. Mr Parker objected to this amount being allowed and pointed out that the plaintiff may in fact have received sick pay which might now be refundable from the verdict and that in that event it would not be appropriate to allow any interest on the agreed loss of wages. In my opinion, in view of Mr Parker's objection and the possible prejudice to which he refers, this Court should not include any allowance by way of interest on the agreed figure for loss of wages. Kirby P I agree with Mr Justice Handley and his reasons The orders are that: (1) The cross-appeal be dismissed with costs. (2) The appeal be allowed with costs. (3) The judgment which Mr Justice Finlay directed to be entered in favour of the appellant following the verdict of the jury be set aside. (4) In lieu thereof judgment be entered by this Court in favour of the appellant in the sum of $26,458. (5) That substituted judgment to take effect on 26 May 1989. (6) The respondent must pay the costs of the appellant of the trial in accordance with the Rule of the Supreme Court. (7) In respect of the costs of the appeal, the respondent if so qualified is to receive a certificate under the Suitors' Fund Act. Samuels JA I also agree. (1) The cross-appeal be dismissed with costs. (2) The appeal be allowed with costs. (3) The judgment which Mr Justice Finlay directed to be entered in favour of the appellant following the verdict of the jury be set aside. (4) In lieu thereof judgment be entered by this Court in favour of the appellant in the sum of $26,458. (5) That substituted judgment to take effect on 26 May 1989. 6 UNREPORTED JUDGMENTS (6) The respondent must pay the costs of the appellant of the trial in accordance with the Rule of the Supreme Court. (7) In respect of the costs of the appeal, the respondent if so qualified is to receive a certificate under the Suitors' Fund Act. Counsel for Appellant: R Bartlett Solicitors for Appellant: Moroney, Rutter and Mantach (Newcastle) Counsel for Respondent: AB Parker Solicitors for Respondent: Curwood and Derkenne