BABIC v WOLLONGONG FORMWORK PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 6 August 1991 [1991] NSWCA 15 NEGLIGENCE — worker's common law claim — jury verdict for defendant — appeal — held: Verdict open to jury — appeal dismissed. NEGLIGENCE — employer's duty to worker — worker injured when hammering nail whilst standing on steel rods — foot slips between rods — employer fails to provide plank or other safe floor — jury returns finding of no negligence — judgment entered for employer — appeal — held: (1) In the circumstances, the employer owed a duty to the worker to avoid exposing him to immediate risks of injury. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 applied; (2) Such duty was not a heavy obligation but one of reasonable care consonant with modern notions of industrial safety and accident prevention. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 applied; (3) In such circumstances, a verdict in favour of the worker would not have been unreasonable; (4) However, the Court of Appeal was only authorised to set aside the jury's verdict if it was so unreasonable that no reasonable jury could have so found. Hocking v Bell (1945) 71 CLR 430; Jones v Green (1956) 73 WN (NSW) 628 applied; (5) It was open to the jury to conclude that the failure of the employer to provide a plank was not in the circumstances negligent; (6) Accordingly, the verdict must stand. Observations on the changing nature of appeals from jury verdicts. Construction Safety Act 1912. Workers' Compensation Act 1926, s63(5). ORDERS Appeal dismissed with costs. Kirby P The Court has before it an appeal by an unsuccessful plaintiff from anadverse jury verdict. Mr Drago Babic (the appellant) sues Wollongong Formwork Pty Ltd (the respondent) for damages on a single claim framed in the tort of negligence. Adverse jury verdict in a damages claim The appellant alleges that on 1 September 1980, in the course of his employment for the respondent, he slipped and fell, injuring himself. He alleges that the respondent was negligent. As particularised in the statement of claim, the allegations were that the respondent (1) failed to take adequate precautions for the appellant's safety; (2) exposed him to avoidable risks of injury; (3) failed to provide a safe floor on which to work; (4) invited him to work on reinforced rods when it was unsafe to do so; and (5) failed to provide a safe means of access in compliance with reg73(3) of the regulations made under the Construction Safety Act 1912. The respondent denied liability. It pleaded contributory negligence. It relied on a defence which was framed in terms of s63(5) of the Workers' Compensation Act 1926 in respect of payments of compensation which had already been made by it to the appellant. 2 UNREPORTED JUDGMENTS A finding by Judge Burke in the Compensation Court of New South Wales led to certain estoppels between the parties. These were pleaded and relied upon at the trial. By them, the respondent was estopped from denying that the appellant had suffered an injury to the meniscus of the right knee on 1 September 1980 in the course of his employment, and that thereafter, as a consequence, he suffered an injury to the left knee and psychological injury. The physical injuries were not really contested at the trial. However, the psychological injuries were disputed. The appellant's evidence at the trial suggested that he was completely and permanently disabled. The respondent suggested, in its evidence, that the appellant's condition was not the true cause of hysterical conversion. In its case there was more than a suggestion that the appellant had been malingering. The appellant's case came on for trial before Smart J and a jury of four in Sydney on 14 August 1989. Liability by the respondent was denied. The parties were each represented at the trial by senior counsel. Remarkably enough, the trial continued for six days. Smart J charged the jury at some little length. No ground of appeal is raised in connection with his Honour's directions, nor was any relevant redirection sought at the trial. The jury retired to consider their verdict at 2.45 p.m. on 21 August 1989. They returned one and a half hours later. They answered only the first of five questions which were posed for them. This was "Has the plaintiff proved the defendant negligent"? The jury's answer was "No". Smart J accordingly discharged the jury. He ordered judgment be entered in accordance with the answer given by the jury. He ordered the appellant to pay the respondent's costs of the trial. The issues on the appeal From that judgment the appellant appeals to this Court. Five grounds of appeal were originally relied upon. Two of them were consequential, in the sense they only arose in the event that the appellant could overcome what was taken as the jury's verdict. These grounds related to contributory negligence (ground four) and a ruling on the estoppel (ground five). To attack the jury's verdict, the appellant relied upon three grounds of appeal: that the jury's finding was "against the evidence and the weight of the evidence and was perverse" (ground one); that the jury erred in law in finding that the defendant was not guilty of negligence (ground two); and that his Honour erred in law in asking the jury to return a special verdict without having then asked them subsequently to return a general verdict as a consequence (ground three). The second ground can be disregarded, except as it elaborates the first. Accordingly, when the appeal was listed for hearing today two issues remained for immediate decision. The first was whether his Honour had erred in failing to take and record a general verdict of the jury for the defendant and, if so, whether this occasioned a miscarriage of justice otherwise entitling the appellant to have the judgment which was entered against him set aside. The second issue was whether the Court, in accordance with established legal principle, was authorised to set aside the jury's verdict and the judgment which followed. At the opening of oral argument in the Court today, senior counsel for the appellant abandoned the first of these remaining grounds. He was, in my opinion, right to do so. No point was taken at the trial by counsel in respect of the suggested failure to secure a general verdict. No miscarriage of justice was occasioned by any such omission. The special verdict was clear, particularly as it had been explained by his Honour to the jury. The general verdict for the defendant at the trial therefore followed of necessity from it. URJ BABIC v WOLLONGONG FORMWORK PTY LTD (Kirby P) 3 "Perverse" verdicts: the applicable principle This reasoning brings me to the remaining ground of appeal, which was argued most strenuously for the appellant. This was that the verdict, and accordingly the judgment which followed it, was such that this Court would be authorised to set it aside and to order a new trial. To do this would amount to the disturbance by this Court of the determination by the constitutional tribunal of fact in the case, the jury. The principle to be applied is not in doubt. Although it is a principle not as commonly considered today as in years gone by, and now typically considered in somewhat different circumstances, the rule was expressed by the High Court of Australia in Hocking v Bell (1945) 71 CLR 430 at 497. It is conveniently restated in a passage in the decision of the Full Court of the Supreme Court of this State in Jones v Green (1956) 73 WN (NSW) 628 at 629. There the Court, in a single judgment of W Street CJ and Herron and Ferguson JJ said: "To obtain a new trial on the verdict of a jury... it is insufficient for the appellant merely to show that the jury's verdict was against the weight of the evidence. It must be shown that the verdict was one which no jury, viewing the whole of the evidence reasonably, could properly find. The verdict must be, not only unsatisfactory but unreasonable and unjust, and such that reasonable men could not have so found. These principles are to be derived from cases in our own courts: Cross v Goode (1887) 8 NSWLR 255 at 262; Bell v Thompson (1934) 34 SR (NSW) 431 at 437; 51 WN 138; by the House of Lords in Metropolitan Railway Co v Wright (1886) 11 App Cas 152, by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125, and by the High Court in Hocking v Bell (1945) 71 CLR at pp 497 et seq." In his argument, senior counsel for the appellant accepted the burden which rested upon the appellant to disturb the jury's verdict. With disarming candour, he acknowledged that it was a heavy burden. This is so. There is no contest but that the respondent owed a duty of care to the appellant to take reasonable precautions to avoid exposing the appellant as its worker to immediate risks of injury. See Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 and Vozza v Tooth and Co Ltd (1964) 112 CLR 316 at 319. That duty was personal to the respondent. It would be insufficient for the respondent to leave it to a worker, such as the appellant, to devise and implement his own system of work. The rule concerning the duty of an employer to a worker remains the same today as it was in the 1950s and 1960s when many of the foregoing cases were decided. However, the denotation of the rule is one which is constantly evolving, in harmony with modern notions of industrial safety and accident prevention. The duty is not to be expressed as a heavy obligation. This was pointed out by the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307 affirming a decision of this Court in that case. Measured against the applicable text so stated, there was clearly evidence before the jury in this case that the respondent had failed to observe its duty of reasonable care to the appellant. The jury could have accepted such evidence. But it did not. Circumstances of injury: a simple operation The appellant was employed as a carpenter. He was employed particularly to erect formwork for the later pouring of concrete in building operations. On 1 September 1980, he was engaged in work on the building of a coal loader for the respondent at Wollongong. 4 UNREPORTED JUDGMENTS The appellant's accident occurred in circumstances where he was standing on steel rods, working in an elevated position. Those rods formed part of the steel reinforcing of the intended coal loader. The steel reinforcing was constituted by rods one inch to one and a half inches in diameter (in one direction) and three-quarters of an inch to one inch (in the other direction). The distance between the rods was eight inches to ten inches and no more than twelve inches. The rods were tied together with wire ropes. Just before he was injured, the appellant was standing on such rods trying to drive a nail into a kicker, a piece of wood at foot level, when his right leg slipped. The distance between the top level of the steel reinforcing and the bottom level was eighteen inches to twenty inches and no more than three feet. The appellant's right leg went into this area when his foot slipped. This is how his primary injury occurred. It was a very simple injury. The appellant gave evidence that he did not see planks of wood which could have been laid across the reinforcing rods. He said nobody had told him anything about laying planks of wood for the purpose of walking on them. He was just told by the foreman, Wally, to do the formwork in the elevated position which I have described. The appellant's case was therefore that the provision of the planks by the employer was simple. It was not expensive. It was also practicable. A platform on the steel could also have been provided by the use of planks or sheets of plywood, which would not be difficult or expensive to supply. These alternative system were proved, not only by the evidence of the appellant himself but also of Mr Rudulovic, who was a builder of some twenty-five years' experience called to give evidence in the appellant's case. The respondent did not call evidence of its own to rebut the foregoing evidence. It contented itself with the tender of a photograph and cross examination of the appellant's witnesses. In the foregoing circumstances, a verdict for the appellant would not have been in the least surprising. Smart J in his charge to the jury reviewed the evidence. He even acknowledged the apparent strength of the appellant's case. However, properly, he reserved to the jury the assessment of what it was reasonable to expect the respondent, as employer, to do in the circumstances. In the course of his charge, his Honour said: "You are entitled to take into account what is common practice. That is some evidence of what is an appropriate system or standard but it is by no means conclusive. It does not follow that because a system is common, it is necessarily safe. It is for you to determine whether the system was a reasonably safe and proper one in all the circumstances. You have heard the views of Mr Easton and Mr Rudolovic. You have heard the evidence of the plaintiff. There is no evidence to the contrary of that of Mr Easton and Mr Rudulovic. It is a matter for you whether you accept their views in whole or in part, but you may be more readily inclined to accept their views when no one has been called on behalf of the defendant to propound the view that the system of work and the place of work were safe. You are entitled to take the view that no evidence could be called on behalf of the defendant which would advance their case beyond that which already appears from the evidence." This Court cannot interrogate the jury, which has dispersed to the community, any more than Smart J was entitled to interrogate them beyond the special verdicts the subject of questions to the jury. We have no means of knowing what actually influenced the jury to reach the conclusion which is reflected by their URJ BABIC v WOLLONGONG FORMWORK PTY LTD (Samuels JA) 5 verdict. It is for this reason that the Court must consider the case in the light of possibilities, open to the jury. It must do so on the footing which is most favourable to the respondent's case. The Court should assume that the jury performed their functions lawfully. It must accept any rational evidence or opinion which favours the respondent's case and which sustains the jury's verdict in favour of the respondent. The jury could have concluded that the case was one in which a simple task was left to an experienced worker to perform. The appellant was certainly an experienced formwork carpenter. The task which he was performing at the time he was injured was, comparatively, an extremely simple one. It involved nothing more than hammering a nail into a piece of plywood. The appellant himself selected the position from which he had to carry out the work. He decided where to place his feet. The evidence established that it was a common work practice in this type of construction for formwork carpenters to walk on and stand on reinforced steel, just as the appellant did immediately before his injury. The structure on which the appellant was working was a comparatively stable one. A formworker in such a situation would necessarily have to exercise reasonable care on his own part. In these circumstances, the jury could have concluded that the failure of the employer to provide the simple expedient, which the case for the appellant suggested was necessary, was not negligence on the employer's part. It did not show a want of reasonable care. If that was the conclusion which the jury reached it sustains the verdict in favour of the respondent. In my view it was open to the jury to reach that conclusion. The verdict must therefore stand. Changing patterns in appeals from jury verdicts I cannot depart from this case without commenting that a comparison of the earlier cases in which jury verdicts were appealed in the 1950s and those which now come to this Court demonstrate the differences which exist in the kinds of cases which now come up on appeal. In the 1950s, as Jones v Green (above) demonstrates, the cases were typically those where a jury had returned a verdict for the plaintiff. It was then the defendant which appealed to this Court and, earlier, to its predecessor. Nowadays, in different times and different economic circumstances, it is typically the defendant which, as in this case, summons the jury and the plaintiff who appeals to this Court from an adverse verdict. It is notable that in Jones v Green, although the Court did set aside the damages which were recovered by the plaintiff, it sustained the jury's verdict in favour of the plaintiff on the issue of negligence. The Court must, of course, apply a neutral principle. That neutral principle is one which upholds the constitutional role of the jury as the tribunal of fact except in the very limited class of case in which interference is permitted. If the evidence rationally supports the jury's verdict, this Court is not authorised by law to disturb it. Here the evidence did, upon a rational examination, support the conclusion reflected in the verdict. It is not a conclusion which I would have reached on the evidence. However, that is not the question. The question is whether I am authorised to disturb the jury's verdict. In my opinion, I am not. Order The result is that the order of the Court should be that the appeal is dismissed with costs. Samuels JA I agree. 6 UNREPORTED JUDGMENTS Meagher JA I also agree. KIRBY P: The order of the court is that the appeal is dismissed. The appellant must pay the respondent's costs. Counsel: Appellant: DB Milne QC / DT Kennedy Respondent: CG Gee QC / W Astron Solicitors: Appellant: Elrington Boardman Allport Respondent: Hunt and Hunt