AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 1 December 1992, 7 July 1993 [1993] NSWCA 11 APPEAL from Common Law Division — Injury to employee fixing spring roller door — Judgment against employer and against owner of factory where door installed. DAMAGES — Amount of $1,000,000 by jury, including general damages of c.$500,000-$700,000 — Excessive for orthopaedic and other injuries — New trial necessary. APPORTIONMENT OF DAMAGES between employer and factory owner — Evidence to support verdict against both defendants — Apportioned $626,931 against employer and $459,802 against factory owner — Default by factory owner suggested as involving failure to warn of sprung nature of door and failure properly to supervise the work — Appeal against apportionment fails. FORM OF NEW TRIAL — Liability of employer clear — Case against factory owner sufficiently strong not to warrant new trial as to liability and apportionment — No inference that jury erred on matters other than damages — Held (Mahoney and Sheller JJA, Handley JA dissenting) new trial limited to damages. Mahoney JA On 18 September 1985 the plaintiff was injured during the removal of a roller door at the premises of Australian Paper Manufacturers Ltd (APM) at Botany. He was employed by B and T Installations Pty Ltd ("the employer"). He sued both APM and the employer for damages. The proceeding was heard before Sharpe J and a jury on 26-28 November 1990. On 28 November 1990 the jury returned a verdict for the plaintiff for $1,000,000. It apportioned responsibility for the damages 60 per cent to the employer and 40 per cent to APM. Accordingly judgment was entered against the employer for $626,931 and against APM for $459,802. These amounts take into account the adjustments made by the learned trial judge consequent upon the jury's verdict. APM has appealed to this Court against his Honour's judgment. Its notice of appeal, in its ultimate form, submitted: that the award of damages was appealably excessive; that the apportionment of responsibility was appealably wrong; and that the judge had "misdirected the jury with respect to the respective obligations of' APM and the employer to the plaintiff. APM sought a new trial. The employer filed a notice of cross appeal contending that the assessment of damages was appealably wrong. The parties have filed detailed written submissions and those submissions have been supplemented by oral argument. From these submissions three main issues have emerged: (1) whether the verdict of $1,000,000 was appealably excessive; (2) whether the apportionment of damages between the two defendants was appealably wrong; and (3) (if the verdict for $1,000,000 was appealably excessive) what order should be made. Before coming to these issues, it is necessary to refer briefly to the facts. In the main the facts are not substantially in contest. I shall state them in general terms and only in so far as it is necessary to do so to deal with the submissions which have been made. 2 UNREPORTED JUDGMENTS The plaintiff was employed by the employer in the capacity of a partially skilled labourer. The employer had been engaged by APM to arrange for the removal from a portion of its premises of a defective roller door. It had been proposed by the employer to remove the roller door by the use of a crane. It was envisaged that slings would be put from the crane at either end of the roller door and that it would be lifted from its position. For reasons for which the employer must accept at least primary responsibility, its workmen decided not to use a crane but to remove the roller door in another way. This involved cutting portions of the roller door. The plaintiff was engaged, at a height of some nine feet or thereabouts, in cutting away portion of the roller door in order to do this. The evidence disclosed that there were dangers involved in working upon a roller do or of this kind. The door was operated by electricity but, as part of its mechanism, it contained a spring. Work upon the roller door could cause the spring to be released and there was a danger that, upon its release, persons working on the door would be injured. It was something of this kind which caused the injury to the plaintiff. Whilst working on the door the spring was released. It struck him. He jumped down from where he was or at least left that position and fell to the ground. While he was on the ground, the roller door came away from its fastenings on the wall and fell on top of him. As a result he was seriously injured. At the trial, as counsel have agreed, the liability of the employer to the plaintiff was not, in the end, in contest. The employer's contentions at the trial were limited to the quantum of damages and the apportionment of them. There was, however, contest as to whether APM was liable to the plaintiff. The plaintiff had claimed that APM was liable to him in damages because it was negligent in causing, permitting or requiring the plaintiff to carry out work on their premises in circumstances in which they knew or ought to have known that "the proposed mean" of dismantling the said roller door was unsafe and liable to cause the said roller door to fall onto the plaintiff'. The plaintiff also contended that APM was liable in other respects, eg, because it had failed to warn the plaintiff or the employer in respect of or to deactivate the tension spring mechanism in the roller door. The plaintiff suffered substantial injuries and the consequences of those injuries upon him were significant. It will be convenient to describe them in terms of the detailed written submissions which Mr Semmler made on his behalf. The accident was "an horrific experience". The plaintiff was struck violently on the right hand side of his head by a heavy spring loaded roller door and was thrown some metres to the concrete floor hitting it with a very severe impact. He was then struck by the falling roller door which weighed approximately one tonne and he was pinned underneath it for between thirty seconds and a minute. He felt as though the blood coming from his face and his nose was suffocating him and he was very worried about dying. His orthopaedic injuries included a compound fracture of the left humerus, three fractured ribs and dislocation of the right shoulder. He was hospitalised for a week. He injured his back and suffers a constant pain in the back with radiation down both legs. He is left handed and has a severe disability in the left shoulder region with a loss of 45 to 50 per cent of the use of the left arm. He will always have pains in the shoulder and elbow area and restriction of movement. During the first twelve months after the accident both arms were "out of action" and he required assistance from his wife during that year. URJ AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Mahoney JA) 3 The accident caused injuries to both knees and the plaintiff had the beginnings of arthritis in the kneecaps. Dr Seaton, who was called for the plaintiff, said the plaintiff had lost 100 per cent of the use of his dominant arm with regard to labouring work and 80 per cent of its function for everyday use. He said the fall had caused obesity, with a gain of some four stone, and the obesity had enlarged a hernia from which he was suffering. The doctor considered he was likely to remain grossly disabled for the rest of his life. He complained of headaches. A psychiatrist, Dr Jolly, said the plaintiff was suffering a reactive depressive illness in which he questioned the value of life. His marriage was adversely affected. He would, Dr Jolly thought, not be free from depressive stigmata of the incident but rehabilitation counselling might be of assistance. The plaintiff's wife considered that their previously happy marriage was "finished" and she gave details of their relationship in support of this. She had left the plaintiff on at least one occasion since the accident. The trial judge, in his summing up, told the jury that the plaintiff was "apparently from all accounts only a shadow of the person he was". It was emphasised to this Court that, at the trial, there was no cross examination of the plaintiff upon the issue of damages, by either defendant, and no medical or other evidence relating to damages was called by either defendant. Before this Court the defendants, whilst not accepting the description of the plaintiff's condition prepared by Mr Semmler, accepted that there was no significant contest by evidence at the trial in respect of what the plaintiff had said. Mr Maconachie QC, for APM, described the plaintiff's condition in different terms but what he said did not, I think, differ in fundamentals from the description put to the Court by Mr Semmler. Following the accident, the plaintiff came under the care of Dr CE Graham, an orthopaedic surgeon. At the trial several written reports of Dr Graham were tendered. Two of the reports, dated 18 December 1989 and 30 July 1990, were in the following terms: "18 December 1989 McClellands, Solicitors Box A227 PO SYDNEY SOUTH NSW 2000 Dear Sirs, Re Mr Kevin FRANKLIN Thank you for your letter regarding Kevin Franklin. I take it you have my report dated 26 March 1987. Since seeing Mr Franklin in 1987 he tells me he has not been able to do any work because of his various disabilities. He says he still has a problem with the left arm and he still cannot fully straighten the left elbow. In fact it lacks about 30 degrees of extension and he has got a great problem with the left shoulder joint which is grossly restricted in range of movement. Since his accident he says he can't sleep because of the pains in his arms and he can't sleep on the right side because of the discomfort there. With prolonged sitting in the cinema he has a constant ache in the low back with radiation down both legs, the left being the worst. It is not surprising that he has got a back problem as he fell a distance of about 20 ft landing on his chest and then a roller door hit him on the back of the head and neck. He actually had stood up by the time the roller door came down and hit him on the back of the head and neck. He was very lucky to survive such a devastating fall. He still has difficulty putting his watch on his left wrist so he wears it on the right. The reason for this is that the left forearm is swollen. He can now get the fingers of his left 4 UNREPORTED JUDGMENTS hand into his mouth and he couldn't do this before. Abduction is restricted to about 30 degrees. Elbow movements are also restricted. Flexion of the elbow is full but extension lacks about 30 degrees. He is unable to lean on the left elbow because of the pain at that site. Pronation and supination are still difficult. Physical examination shows there is gross restriction of left shoulder movement as well as the restriction referred to in the elbow. There is a tenderness in the elbow which means it is uncomfortable for him to lean on. The right shoulder seems to function fairly well. I should think this man has lost 45 to 50 per cent of the use of his left upper limb as a result of this accident. He also has to contend with the low back pain which he didn't have before the accident. There is no doubt that his present disabilities are due to the accident described. There is a loss of strength, restriction of movement and pain in the left upper limb and in the lumbar area and it is understandable that he couldn't get back to any strenuous work. His symptoms and signs are reasonable and there is no attempt at exaggeration. I think it is important to realise that this man is basically left handed so that the disability involving his left upper limb is more serious than it would be if he were a right handed person. He has done everything with his left hand including writing since his early years. With regard to prognosis he will always have pains in the low lumbar area as well as the restriction of movement in the left shoulder and left elbow." "30 July 1990 McClellands Solicitors PO Box A227 SYDNEY SOUTH NSW 2000 Dear Sirs, re Mr Kevin FRANKLIN Mr Franklin was reviewed today and there has been no change at all in his condition since I reported to you 18 December 1989. He still has a severe disability in the shoulder region and the range of movement that I reported to you 18 December 1989 is much the same now as it was then. Abduction is restricted to 30 degrees and flexion of the elbow is full but extension lacks about 30 degrees. He can't lean on his elbow and he has difficulty sleeping because the elbow tends to tick up in the air. As I pointed out earlier this man has lost 45 to 50 percent of the use of his left upper limb. His symptoms and signs are reasonable and there is no attempt at exaggeration. With regard to prognosis he will always have pains in the shoulder and elbow area and restriction of movement has been reported above." (1) QUANTUM OF DAMAGES: The principles by reference to which the court is to determine whether the jury's verdict in damages was appealably excessive have not been in contest. Counsel referred in their submissions to, Inter alia, Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 and to three decisions of this Court: Clarence Colliery Pty Ltd v Bunkovic (1985) Aust Torts Reports 80-761; St Margaret's Hospital for Women (Sydney) v McKibbin (1987) Aust Torts Reports 80 to 130; and John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259. The argument proceeded in substance by reference to the amount which, it was to be inferred, had been awarded by the jury for general damages. It was for this purpose generally assumed that the jury had included in their verdict (or were in the plaintiffs favour to be assured to have included) the following amounts: Out of pocket expenses $11,585 URJ AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Mahoney JA) 5 Economic loss to date $111,71 of trial Amount awarded in $14,872 respect of the care of the plaintiff by his wife Future medical needs $4,000 There was difference in argument as to the amounts which the jury could have, and were to be inferred to have, included in the verdict as compensation for the plaintiff's loss of economic capacity and general damages. The plaintiff submitted that, for the former, the jury could have awarded some $359,000. It was accepted that, to have included that amount in the verdict for loss of economic capacity, the jury would have had to have made two assumptions: that the plaintiff, aged fifty two at the accident and fifty seven at the trial, would have continued to work until he was approximately seventy five years of age; and that no discount should be made in this regard to take account of the ordinary vicissitudes of life. Conventionally and subject, of course, to the circumstances, a discount of fifteen per cent is allowed by judges in this regard. It was for the jury to determine what should be done having regard to the circumstances of the present case. Upon the basis of the allowance of some $359,000 for such economic loss, the plaintiff submitted that it was to be inferred that the amount allowed by the jury for general damages was of the order of $500,000. The plaintiff's submissions were based upon this inference. Various competing submissions were made for the defendants. These turned substantially upon the amount which should be inferred to have been awarded for loss of economic capacity. Mr Maconachie QC for APM submitted that, upon a proper estimate, the verdict should be inferred to include an amount of some $700,000 "minimum" in respect of general damages. He submitted that this indicated that the award was appealably excessive as out of all proportion to the harm suffered: Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308 at 322. Mr Newbrun for the employer made submissions generally of this kind. Notwithstanding the matters pressed for the plaintiff by Mr Semmler, I have come to the conclusion that, having regard to what on the evidence it was open to the jury to award, the present award was so far beyond what was proportionate to the plaintiffs injuries, and a fair and reasonable compensation for them and their consequences, that the conclusion should be drawn that the assessment of damages miscarried. I am conscious that the principle stated in Planet Fisheries Pty Ltd v La Rosa were stated in relation to a judgment given by a judge sitting without a jury. There is, in a sense, a difference between the circumstances in which an appellate court will set aside the judgment of a judge and that of a jury. In the end, each must consider what is "fair and reasonable compensation for the injuries received and the disabilities caused" and that must be "proportionate to the situation of the claimant party": 119 CLR at 125. It is important also that, in relation to general damages and in particular general damages for pain and suffering and personal loss, the scope for differences in opinion be constantly borne in mind: see Miller 6 UNREPORTED JUDGMENTS v Jennings (1954) 92 CLR 190. In the context of awards by a judge, the discretionary nature of judgments in this area was discussed at length by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700. As was said by the court in the Planet Fisheries case: at 125; a judge who is making an assessment "will be aware of and give weight to current general ideas of fairness and moderation". In considering what may properly be done by a jury, this Court, as one of the matters for consideration, will have regard to such a matter. It is proper to have in mind that changes occur not merely in money values but also in current community values relating to the significance of pain and suffering, personal loss, and family difficulties and to the extent to which these are to be given weight in assessing awards of damages. It is, in my respectful opinion, proper that an appellate court maintain an ongoing appreciation of such matters. In this regard Mr Semmler pressed the significance of the impact of the plaintiff's injuries upon his family life. It is not necessary to refer to the detail of the evidence as to what has happened. The jury could conclude that, as the summing up indicated, there had been a change in the relationship of an important nature and they could have accepted that the marriage was, as Mrs Franklin said, "finished". Mr Semmler pointed to, as I think his submission suggested, the subjective values which were taken into account by the majority of this Court in upholding a verdict of $275,000 for general damages in St Margaret's Hospital for Women (Sydney v McKibbin (1987) Aust Torts Reports 80 to 130 (penis injury). However, giving full force to the submissions which have been made, I am satisfied that in the present case the award indicates that the trial miscarried and that in this regard the judgment should be set aside. I have come to this conclusion having regard to what are "current general ideas of fairness and moderation". Views may differ as to these matters. Some may believe that compensation for physical and mental injury should be of a substantially higher order; others may believe that the level of damages has already gone beyond what, according to current social values, it should be. I am not required to choose between them. If the now current ideas of fairness and moderation were to be departed from, that should be done by the High Court and the legislature. (2) THE APPORTIONMENT OF DAMAGES: The plaintiff's case against APM involved that the roller door contained a spring, that that spring was a source of danger, that the plaintiff and, it may be, the employer would not have undertaken the work as they did had they known that there was a spring or a damaged spring in the roller door and that APM had responsibility to make clear to the plaintiff and, it may be, the employer that the door contained the spring. The case against APM involved, inter alia, both the suggestion that employees of APM had been asked about the door and had failed properly to refer to the dangers of the spring; and also that there was a duty, either general or because of the way in which work was from time to time conducted on APM premises, to bring to the attention of the plaintiff and, it may be, the employer the existence of and the dangers of the spring. There was evidence that, when work was done by the employer on APM premises, it was subject to supervision and, perhaps, control of a sort by APM. On the particular day, it had been arranged that the fire officer Mr Drury was to be present when the work was to be carried out. It was he who arranged for a forklift and forklift driver of APM to assist in the carrying out of the work in the way which the employer had decided to adopt and which, in the event, proved dangerous. Mr Grant, who was URJ AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Mahoney JA) 7 in charge of the work for the employer, was permitted to say without objection that he had been told "that APM management had been approached and he was going to make the forklift available at the time it was required for the job". It was suggested - or the jury could so regard the evidence - that APM had indicated that before the oxy cutting was to commence, their fire officer had to be present and take precautions against fire. From all of the evidence it was open to be inferred that the process to be adopted for removal of the roller door had been explained to APM in sufficient detail. In addition, the plaintiff gave evidence of a conversation with employees of APM who were, as the judge ruled, "employees who could be expected to know the operations of an electrically driven roller door and upon whom employees of the contractor working on the subject apparatus might rely for information relating to whether or not the roller door was under tension or not". The plaintiff asked them if the door was "sprung" and "they informed me that it is electric doors, they are not sprung". The plaintiff said that he relied, at least in part, upon that information. It is not necessary to pursue all of the detail of the evidence in this regard. Upon the basis of the evidence as it was admitted at the trial, there was in my opinion a proper basis for the jury to find that APM was, in the relevant sense, at least partly responsible for the accident which happened. It was open to the jury to have regard to the context in which the plaintiff was working and what he might reasonably expect to be told by the relevant employees of APM when he came to perform the work in the manner proposed. It was proper for the jury to have regard to the fact that the employer was a contractor whose work and no doubt expertise related to roller doors and their removal. But this does not mean that the jury could not assess the extent of the responsibility of APM for what occurred at 40 per cent. Before this Court, APM, by amendment to the notice of appeal, contended that the trial judge had misdirected the jury with respect to the respective obligations of the two defendants to the plaintiff. Reference was made to the submissions made at the trial at the conclusion of the summing up and before the jury's verdict was taken. The learned judge, at the request of counsel for the plaintiff, read to the jury evidence given during the trial suggesting that, inter alia, though ordinarily an APM engineer visited work being done, on the particular day no engineer came. That evidence was before the jury and, I think, no objection was taken to the reading of it at the end of the summing up. However that be, I see no ground of appeal in what there was done. (3) THE ORDERS TO BE MADE: Mr Semmler invited the court to reassess damages; he referred to the Supreme Court Act, s107. His application was opposed. I do not think the court should do so. It is desirable that litigation of this kind be brought to an end as soon as may be. I am conscious that there was no substantial contest, by cross examination or evidence, of what the plaintiff said as to his injuries. But in a case such as this, the impact of the evidence is or may well be affected by what is seen of the witnesses when giving it. I think there is a real possibility that the court, or at least I, would not be able to do justice in the assessment of it without seeing the witnesses. The main contest has been as to whether there should be a general new trial or a new trial limited to damages. The principles by reference to which a court determines whether a new trial is to be general or limited have been referred to in, eg, Pateman v Higgin (1957) 97 CLR 521; see also Theeman v Forte 8 UNREPORTED JUDGMENTS Properties Pty Ltd (1973) 1 NSWLR 418. The principles have not been in issue in this appeal: the submissions have been addressed to the manner in which they are to be applied. At the trial, the relevant issues were: whether APM was liable to the plaintiff; whether the employer was liable to the plaintiff; what was the quantum of damages; and how the damages were to be apportioned between the defendants. The first of these, the liability of APM to the plaintiff, remained in contest at the trial and before this Court. But, for the reasons to which I have referred, there was no error in the jury's finding for the plaintiff on this issue. The liability of the employer, though formally in issue, was not in fact in contest at the trial. Mr Newbrun, for the employer, has indicated to this Court that it is not now in contest. The issue of apportionment was properly contested at the trial and, for the reasons to which I have referred, the jury's finding did not involve any appealable error. Accordingly, the only issue in respect of which there is a current dispute requiring resolution is that in respect of damages. There would, prima facie, be injustice in subjecting the plaintiff to a retrial in which there would be the possibility of the finding of liability against APM being superseded. In discussion before this Court, Mr Semmler indicated that he felt assurance with the judgment given against the employer. But considered in principle, I do not see a reason for the plaintiff being required to prove again against APM the matters of liability which were contested at the first trial and which were, as I have indicated, rightly decided in his favour. It is perhaps arguable that, were there a current contest in respect of apportionment, it would be proper to recontest the issue of APM's liability because, if it be not liable, it is not liable to bear any apportionment of damages. But, as I have indicated, there was no error in the jury's finding in respect of apportionment of the damages. Accordingly, there is prima facie no basis for directing a retrial in respect of the liability of APM to the plaintiff. Accordingly, if there is to be a general retrial, it must be because of matters affecting or arising from the retrial of the damages claim. There are, of course, circumstances in which retrial as to damages may in justice require that other issues also be retried. In the present case there were, I think, two suggestions: that the error as to damages warranted the conclusion that the jury had miscarried in their discussion of other issues; and that the determination of issues of liability or apportionment were in a sense involved in the determination of the damages issues. It may be accepted that in some cases an error on one issue may warrant the conclusion that there was error in others. Thus, in Uren v Australian Consolidated Press Ltd 66 SR 271 at 304 to 305, Walsh J held that the prejudice resulting from the conduct of counsel which affected the jury's deliberations on damages could be inferred to have affected their deliberations on other matters; his Honour's judgment was upheld in the High Court: (1968) 117 CLR 185 at 193 to 200, 219 to 220. Such inferences are, I accept, not limited to cases of prejudice of that kind. But I do not infer from what happened in the present case that the jury failed in their duty in relation to liability or apportionment. If it be relevant, having considered the evidence, I would have come to the same or similar conclusions. Having regard to the evidence which was admitted at the trial and may now be taken into account, I see no relevant error in what the jury did. URJ = AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Handley J) 9 Nor do I see in the determination of damages anything apt to affect or be affected by issues of liability or apportionment. What may be decided in respect of damages at a retrial would not be inconsistent with what has been done upon the issues of liability or apportionment. Ido not see any injustice in a retrial limited to damages. That is sufficient. But there is a further factor. Retrials are evils to be avoided. The present trial lasted for several days. It is appropriate that, if justice allows, the extent of any retrial be limited. In the present case, I would limit the retrial to the issue of damages. In my opinion, therefore, the judgment should be set aside. The defendants should have a new trial limited to damages. There should be no new trial in respect of liability or apportionment of damages. The form of the judgment to be given should await the outcome of the new trial as to damages. The orders for costs should be as follows. The plaintiff should pay the employer's costs of the cross appeal, the employer having succeeded on that matter. As between the plaintiff and APM, each party should bear his or its own costs of the appeal. As to the costs of the first trial, the defendants should pay the plaintiff's costs of that trial with the qualification that the plaintiff should pay the defendants' costs of the first trial as far as they relate to the issue of damages. The order of the trial judge that each cross defendant should bear its own costs of the cross claims should not be disturbed. Handley J In this appeal I have had the advantage of reading the draft reasonsf or judgment of Mahoney JA. I agree that the damages of $1 million awarded by the j ury were beyond the bounds of reason and that this Court must intervene and set aside the award. Unfortunately I am unable to agree that the appropriate order that should now be made is for a new trial limited to damages. In my opinion this Court should order a new trial on all issues. The plaintiff was injured in the course of his employment with Byrne and Thomas Pty Ltd (B and T) at the premises of Australian Paper Manufacturers Ltd on 18 September 1985. He had been engaged in removing a heavy steel spring loaded roller door. The spring was suddenly released and the plaintiff fell from some scaffolding about four metres to the ground. Moments later the door which weighed about three quarters of a ton fell on him causing serious injuries. He sued B and T as employer and APM as occupier alleging against the latter a general duty of care. Contributory negligence was not raised and the plaintiff did not rely on any statutory causes of action. Neither defendant called evidence. The evidence for the plaintiff was capable of establishing the following facts to the satisfaction of the jury. The plaintiff was a tradesman's assistant employed by B and T which undertook maintenance and related work on a contract basis. On the day in question he went with a Mr Ian Grant, a boilermaker and fellow employee to the premises of APM a t Matraville to remove the door. They were accompanied by a Mr Helmut Schellhammer, a supervisor and by a Mr Arrassis, a leading hand foreman, both employed by B and T. The supervisor had arranged for a mobile crane to assist in the removal of the door and then to work on a second job on the site. When he discovered that the second job could not proceed that day he cancelled the hiring of the crane and instructed Mr Grant and the plaintiff "to go ahead and cut up the door... cut it into pieces and manhandle it out". The supervisor made "other arrangements" which involved obtaining the services of one of APM's forklift trucks. This was done and he left. The leading hand was present at the start of the job and then he also left. He came back later but was not present when the accident occurred. 10 UNREPORTED JUDGMENTS The roller door which was motorised was hung on a metal drum 4.5 metres in length. The motor was located at the head on the left hand side. The door was open when the men arrived. They erected their scaffolding to give them access to the head of the door. The leading hand then started the motor and lowered the door. Mr Grant and the plaintiff proceeded to cut sections one metre by three metres wide out of the door, using oxyacetylene equipment and working their way up the door. They had dismantled the door up to about two or three feet from the top. Mr Arrassis then returned and instructed them to take off the motor without damaging it and left. An APM fireman had stood by with a fire hose while the metal door was being cut with the oxy torch to prevent sparks starting a fire in the paper stored in the building. When Mr Grant was getting towards the top he decided that it was time to start using the forklift and the fireman left and summoned an APM forklift and driver. The forklift was positioned to assist in lowering the top section of the door to the ground. Mr Grant and the plaintiff dismantled the motor and disconnected the right hand side of the roller door mechanism. They then moved along the scaffolding to the left. Mr Grant was cutting the bolts on the left supporting the door drum when the right hand side of the door was suddenly released from its housing and spun around knocking the plaintiff off the scaffolding. The method of work was that ordered by the employer's supervisor and leading hand foreman. The employer provided the team comprising Mr Grant with the plaintiff as his assistant, the scaffolding and the oxy acetylene equipment. Once the work began Mr Grant was in charge and gave the plaintiff his instructions. APM's only direct contribution was the provision of a forklift and driver as a substitute for the mobile crane. They were provided at the suggestion of the employer's supervisor. The APM driver acted throughout under the general instructions of either the foreman or the boilermaker. The door swung suddenly as it did because it was spring loaded and when the door was lowered the spring came under tension. Mr Grant knew that spring loaded roller doors were dangerous. His initial impression was that the door might be sprung. Before starting work he tested it twice to ensure that it was not under tension and decided that it was not. He said in cross examination that he would not have dreamed of cutting the head of the door free as he did if he had thought that the mechanism was sprung. He also asked some unidentified APM tradesmen who were passing whether the door was sprung and was given a negative answer. It was a "quick inquiry" which was answered by the APM tradesmen as they walked away with their backs turned. Mr Grant conducted his two tests after this exchange. They were "two reasonably detailed technical tests". He did this because he "wanted to make sure that the job was safe", he was not satisfied to rely upon the answer given by the passing APM tradesmen, and he thought that the only proper way to satisfy himself was to conduct the tests. The involvement of APM was a limited one. It was the occupier of the premises and wanted the roller door removed. It contracted with B and T for this work to be done. The company was experienced in this class of work and there was no suggestion that APM was negligent in selecting this contractor. Someone from B and T, probably the supervisor, had visited APM's premises beforehand to cost the job and this necessarily required a decision to be made as to how the work would be done. The supervisor decided initially that a mobile crane would be used. These were cheap (on the evidence only $50 an hour) and readily URJ = AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Handley J) 11 available. One had actually been hired for the job but was then cancelled by the supervisor. The use of a crane would have avoided the risk and prevented the accident. There was expert evidence that for safety reasons a crane should have been used and that the forklift was not as safe or as satisfactory. B and T's supervisor decided that a forklift would be used instead and arranged for one of APM's to be made available. There was also expert evidence that the scaffolding as erected was inadequate because there was no guard rail at the back. Apart from the casual answer given by the unidentified APM tradesman who walked by, the only specific evidence implicating APM was some given by the plaintiff. He said that APM's engineers "supervise everything that you do" and that he hadn't seen one of their engineers that day. Later he said: "You would see an engineer two, three, four times a day. In this particular case there was never an engineer come around and I don't think I seen anybody as far as anybody who you could have asked to, if you wanted to... But that particular day no engineer came over. Normally he was there to check everything. They were a very safety conscious firm." In his summing up on the question of breach of duty by APM his Honour said: "The plaintiff says they are also responsible because when my mate was in doubt s about it we saw two fellows in our trade and when they were queried they gave a negative answer, by implication anyway, 'they are electric' and that led them into the situation where they proceeded with the job under the false assumption that it was without any sort of spring and therefore they are liable in negligence also." This direction did not accurately reflect the evidence because Mr Grant was not prepared to rely on the answer alone but made his own tests. However no redirection was sought by counsel for APM. The Judge told the jury that whether APM's duty of care had been breached in the particular circumstances demonstrated by the evidence was a matter for them and that if they found that both defendants had breached their duties of care "the amount recoverable from any person is as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for damage. So its just what you think is fair, that is what it amounts to." Counsel for APM did not object to any part of the summing up. However counsel for B and T drew attention to the plaintiff's evidence that APM's engineers normally supervised "everything that you do". The Judge had not referred to this evidence in his summing up and counsel asked him to read the relevant passage to the jury. His Honour, over objection from counsel for APM, decided to do so. He prefaced the reading of this evidence by stating: "Members of the jury. I have not read to you from the evidence, but I think it is important perhaps that I just remind you of one little piece of evidence again by the plaintiff when he was being cross examined." No objection was taken to his Honour's description of this evidence as "important" but in my opinion counsel for APM having objected to the course his Honour proposed to follow was not obliged after the event to object to his Honour's statement that it was "important" that he read this evidence to the jury, and seek some further direction. In my opinion, and with respect, his Honour should not have said that it was "important" that he remind the jury of the plaintiff's evidence that normally an APM engineer was there "to check everything". His Honour had concluded his summing up and sent the jury out to consider their verdict. By bringing them back to hear this piece of evidence he was already giving it an emphasis, which 12 UNREPORTED JUDGMENTS in my opinion, it did not deserve, but to describe this evidence as "important", in that context, was in my respectful opinion a serious misdirection. If counsel for the plaintiff or for the employer had referred to this evidence in their closing addresses there was no need for the Judge to single it out for special mention either in his summing up or in a further direction. On the other hand if those counsel had not reminded the jury of this evidence in their closing addresses there was no occasion for the Judge to refer to it at all. By reading this evidence to the jury and describing it as important his Honour in substance told them that APM had an overall responsibility to ensure that the employer's work practices on APM's premises were safe. B and T was an independent contractor and, unless there was a special contract, of which there was no evidence, APM's engineers were not entitled to direct B and T employees as to how their work was to be done. The boilermaker Mr Grant did not have to be warned that sprung doors were dangerous. He did not simply rely on the answer from the passing APM tradesmen that the door was not sprung because he immediately carried out his own tests to satisfy himself, as far as he could, that it wasn't. The trial Judge gave the jury very little help on the issue of apportionment between the defendants. He did not tell them that they should consider the responsibility of each defendant for the damage in relation to the culpability and the causative potency of their respective negligent acts and omissions, nor did he tell them that the employer owed a higher duty of care to the plaintiff than the occupier. See Fleming on Torts 8th ed. 1983 at 263 to 264. Counsel for APM did not ask for these directions but, once a new trial of some sort must be ordered, in my opinion these matters are relevant in determining what that new trial should be. In my opinion the jury's apportionment was unreasonable and wholly erroneous. I appreciate that a jury is entitled to considerable latitude on this issue (see Pennington v Norris (1956) 96 CLR 10 at 15 to 16) but in my view this apportionment was outside the range reasonably open to this jury. The culpability and causative potency of the supervisor's decision to cancel the mobile crane and to direct that the door be taken out manually was far greater than anything done or omitted by APM. In any event I consider that his Honour's misdirection in relation to the importance of the evidence about APM's engineers entitles APM to a new trial of the apportionment issue. Indeed in my opinion this misdirection is the probable explanation for the jury's unreasonable verdict on this issue. The effect of an order for a general new trial on the plaintiff is not to be overlooked, but there must be a new trial on the issue of damages in any event. The plaintiff has a powerful case against the employer. If I could I would not order a new trial on the issue of the liability of the employer. However in a case such as this a jury can only apportion responsibility as between the defendants after it has decided the issues of negligence as between them and the plaintiff. The principles to be applied in determining whether an appellate court should order a general new trial or one limited to particular issues were considered in Pateman v Higgim (1957) 97 CLR 521. At 529 Kitto J said: "The question whether a new trial should be limited to damages must always be, in the end, a question whether the appeal court is satisfied that notwithstanding what has happened about damages the verdict on liability should be accepted as a due determination of that issue." At 532 to 533 Taylor J said: URJ |= AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN (Sheller JA) 13 "IT do not doubt that a verdict may be so grossly inadequate as to enable an appeal court... to conclude that the verdict generally was the result of an improper compromise or otherwise unsatisfactory... in cases where the inadequacy of the damages awarded is not thought to be sufficient, by itself, to indicate or suggest error of a character appropriate to vitiate findings on other issues, a firm foundation for the conclusion that a new trial should not be restricted may be reached upon consideration of the circumstances of the case and the course of the trial." Earlier his Honour had referred with approval at 532 to a statement by Halse Rogers J who had said: "Where a jury has arrived at such a result as was reached in this case, and where it is apparent, on the face of the record, that matters of little or no relevance have been given considerable prominence, and there is a possibility, or more, that these may have diverted the jury from a proper consideration of the real matter in issue in the case, a new trial should not be limited to damages, but should be a new trial generally". With respect, I am firmly of the view that the jury's apportionment was "unsatisfactory" and should not "be accepted as a due determination of that issue". Moreover, it appears to me that one matter of little relevance was give n considerable prominence in the supplementary directions of the trial Judge. Accordingly in all the circumstances I am of the view that this Court should or der a general new trial. Sheller JA I have had the benefit of reading the judgment of Mahoney JA and agree with it and the orders therein proposed. 1. Judgment below set aside. 2. Defendants to have a new trial limited to damages. 3. Form of the judgment to be given to await the outcome of the new trial as to damages. The plaintiff to pay the employer's costs of the cross appeal. As between the plaintiff and Australian Paper Manufacturers Ltd, each party to bear his or its own costs of the appeal. 6. As to the costs of the first trial, the defendants to pay the plaintiff's costs of that trial with the qualification that the plaintiff is to pay the defendants' costs of the first trial as far as they relate to the issue of damages. 7. The order of the trial judge that each cross defendant should bear its own costs of the cross claims is not to be disturbed. ws Counsel for the Appellant: JE MACONACHIE QC/ACA BRIDGE Instructed by: EBSWORTH and EBSWORTH Counsel for the Respondent (1): PCB SEMMLER Instructed by: McCLELLANDS Counsel for the Respondent (2): IM NEWBRUN Instructed by: RISHWORTH DODD and MENCZEL