YOUSEFF v BARRECA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 1 November 1993, 1 November 1993 [1993] NSWCA 300 DAMAGES — quantum — no question of principle. Handley JA This is an appeal by a plaintiff from a decision of a jury in an occupier's liability case. The plaintiff slipped and fell in the defendant's greengrocer's shop and sued for damages for breach of a general duty of care owed by the occupier to persons such as the plaintiff lawfully entering the shop. The trial judge rejected a motion for a verdict by direction for the defendant on the ground that there was no evidence fit to be submitted to the jury on the question of negligence, and the case was left to the jury. The jury found a verdict for the plaintiff, rejected the defence of contributory negligence and assessed the plaintiff's damages in the amount of $14,838.37. The plaintiff has appealed, alleging that the jury's verdict on damages was unreasonably and appealably inadequate, and the defendant has cross appealed contending that the trial judge erred in leaving the case to the jury and that, in the alternative, if this Court was minded to interfere with the verdict on damages, the new trial that should be ordered should be a new trial on all issues and not limited to damages. In the end Mr Kalfas, counsel for the defendant, did not press the appeal against the decision of Judge Cooper that there was evidence of negligence fit to be submitted to the jury, so the only questions for the Court were whether the damages were inadequate and, if so, the nature of a new trial that should be ordered. I should say that I agree with Mr Kalfas' decision not to attempt to press the cross appeal as, in my respectful view, there was evidence before the jury on which they could find a verdict for the plaintiff and Judge Cooper was entirely correct in ruling to that effect. The jury's verdict for the plaintiff was for the precise amount of her claim for out of pocket expenses, down to the last cent of that claim. The case on damages before the jury was hard fought and it is apparent from the judge's summing up that there was a major issue as to the credit of the plaintiff and as to whether there was anything very much wrong with her at all. The judge clearly directed the jury that they should allow an appropriate sum for general damages, in addition to any amount that they thought should be awarded for out of pocket expenses. The out of pocket expenses themselves were in issue because the defendant contended before the jury that the plaintiff should not recover the whole of those expenses, and the judge left it to the jury to decide what amount out of this claim they thought was appropriate, either the whole or, as he put it, "so much of it as you feel flows reasonably and properly from the plaintiff's injuries." In my opinion the Court should infer from the form of the jury's verdict that they did allow the whole of the out of pockets in full and allowed nothing for general damages. Mr Kalfas was asked whether it was possible to divide the 2 UNREPORTED JUDGMENTS claim for out of pockets on a time basis and add a sum such as $5,000 for general damages and in this way arrive at the amount of the jury's verdict, and he very fairly acknowledged that an apportionment of the out of pockets on such a time basis could not explain the amount of $838.37 in the verdict. In these circumstances, as I said, I think the Court should conclude that the jury allowed nothing for general damages. It is apparent that there is an inconsistency in the jury's verdict because they have allowed out of pocket expenses for the whole of the period between the accident and the trial, and yet they have allowed not a single dollar for general damages for any part of that period. It is also apparent that the jury, for some reason or another, and perhaps because the verdict represents a compromise, have ignored the direction from the trial judge that they should add an appropriate amount for general damages to whatever they allowed for out of pocket expenses. In these circumstances, in my view the Court should conclude that the jury's verdict on damages is fatally flawed and that a new trial, at least on this issue, must follow. Mr Dowd of Queen's Counsel, who appeared for the appellant, submitted that a new trial should be limited to damages. Mr Kalfas, for the respondent, argued that in the circumstances the new trial should be on all issues. Although the defendant did not go into evidence there were serious issues on liability for the consideration of the jury. The mere fact that the plaintiff slipped and fell on lettuce leaves in the defendant's shop did not establish a prima facie case of negligence. The authorities in this Court make it clear that no doctrine of res ipsa loquitur applies in such a case. The plaintiff had to establish that the presence of the lettuce leaves on the floor in areas to which the public had access was, more probably than not, the result of some negligence on the part of the occupier, its servants and agents, and that this negligence had caused her fall. This involves some evidence as to the length of time that the lettuce leaves had been lying on the floor in the passageway, without having been swept up by the occupier or members of his staff. Moreover, as I have already indicated, there was a heavy contest on damages in this case going to the credit of the plaintiff. In my opinion the appropriate decision in this case is that there should be a new trial on all issues. The jury's decision on damages not only involves an inconsistency of the kind I have already mentioned, it also involves the rejection of the trial judge's direction that they should add an appropriate amount for general damages to whatever sum they thought appropriate for out of pocket expenses. Given this inconsistency and given the jury's conduct in ignoring or rejecting the directions of the trial judge, it seems to me that the case is not one in which this Court can safely allow the jury's decision on liability to stand. To adopt the language of Kitto J in Pateman v Higgin (1957) 97 CLR 521 at 529: "The jury's verdict on liability should (not) be accepted as a due determination of that issue." Equally to adopt the language of Taylor J in the same case at 532 it seems to me that it is proper "to conclude that the verdict generally was the result of an improper compromise or was otherwise unsatisfactory." I would therefore propose that the appeal be allowed, that there be an order for a new trial of the action on all issues. The respondent is to pay the appellant's costs of the appeal and cross appeal but is to have a certificate under the Suitors' Fund Act. The costs of the first trial are to abide the decision of the judge proceeding at the second trial. Clarke JA I agree. URJ YOUSEFF v BARRECA (Meagher JA) 3 Meagher JA I also agree. Clarke JA: The orders of the Court will be as Mr Justice Handley has indicated. (Mr Dowd sought leave to be reserved in the event of the plaintiff succeeding for more than the amount of the offer of compromise, to come back to this Court in relation to indemnity costs.) We will reserve leave to the appellant to make application, if appropriate, for costs to be taxed on an indemnity basis. 1. Appeal allowed. 2. Order a new trial on all issues. 3. The respondent is to pay the appellant's costs of the appeal and cross appeal but is to have a certificate under the Suitors' Fund Act. 4. The costs of the first trial are to abide the decision of the judge presiding at the second trial. 5. Leave granted to the appellant to apply, if appropriate, for costs to be taxed on an indemnity basis. Counsel for the Appellant: J DOWD QC with K PRYDE Instructed by: AUDREY LEE, Solicitor for G.I.0. of New South Wales Counsel for the Respondent: S KALFAS Instructed by: PRICE BRENT