MENDE v LEIGHTON CONTRACTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and Cripps JJA 22, and 23 March 1993, 23 March 1993 [1993] NSWCA 178 The issues for appeal were, first, whether the jury was entitled to make a finding of contributory negligence and, second, if they were, was the apportionment of 40% blame a finding that was not reasonably open on the evidence. Held: No contributory negligence was proved and, even if it was, no jury would find the appellant's actions contributed 40% to the accident. Illiopoulos v Victorian Railways Board (1981) 55 ALJR 668 Kondis v State Transport Authority (1984) 154 CLR 672 Commissioner for Railways (NSW) v O'Brien (1958) 100 CLR 211 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Pateman v Higgin (1957) 97 CLR 521 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Cripps JA This is an appeal from the verdict of a jury in favour of the appellant on 19 July 1991. The jury found for the appellant on liability and assessed damages in the sum of $235,000. It also found the appellant guilty of contributory negligence and apportioned liability as to sixty per cent blame to the respondent and forty per cent to the appellant. The only issues in this appeal are whether the jury was entitled to make a finding that the appellant was guilty of contributory negligence and, if it was, whether the apportionment of forty per cent blame was a finding that was not reasonably open on the evidence. At the trial the appellant did not ask the judge to take the issue of contributory negligence away from the jury. The first question that arises, therefore, is whether this Court should entertain the appeal on the ground that there was no evidence entitling the jury to come to the conclusion it did. The Court has the power to entertain such appeal and I am of the opinion, in the circumstances of this case, that it should exercise the power. In my opinion, a finding of forty per cent contributory negligence could not, on any view of the evidence, possibly be justified and would have resulted, in any event, in a new trial being ordered. The appellant was injured on 5 April 1986 when he slipped in the course of his employment as a dogman with the respondent at a building site in North Sydney. He was an experienced dogman and had worked in the building industry for a number of years. He was certified as a competent crane chaser. The circumstances that preceded and gave rise to the injury are set out at 288 and 289 of the appeal book in the summing-up by the learned trial judge to the jury. I do not think it necessary for me to repeat them here. The appellant's case, and that which was accepted by the jury, as is evidenced by its verdict and from which there is no appeal, was that the respondent failed to provide a safe system of work because it required the appellant to climb onto trucks without adequate hand holds. His case was that there was a reasonably practical alternative available to the employer. It was said that although there was insufficient room between the nearside of the truck and the hoarding to place a ladder, a ladder could have been placed on the offside of the truck and appropriate 2 UNREPORTED JUDGMENTS traffic controls as, for example, the laying down of witch's hats or the providing of some person to control the traffic, could have been implemented. The appellant was cross examined to suggest that ladders were available on request and that they were present on some of the floors below the fifteenth. It was also suggested he could have asked the driver of the truck to move it a little further out so he could place a ladder between the hoarding and the nearside of the truck. There was some debate in the proceedings concerning the appropriateness of moving the truck. It was said, for example, that if the truck had been moved out it may have caused a traffic accident because it would then have been in a lane of a busy thoroughfare. Evidence was given by the general foreman, Mr Craig, that ladders were on the construction site and that if the appellant had asked for one and the material to tie it to the truck, both would have been provided. Mr Craig also said the appellant's method of climbing onto the truck the way he did was regarded as normal and was the system used at the time. He said that when employing experienced dogmen (such as the appellant), it was up to the dogman in the circumstances then existing to make his own decision about what assistance, if any, he required with respect to any aspect of his work and, in particular, getting on to the truck. However, the issue of liability was found against the respondent and there is no appeal against that decision. In these circumstances it is difficult to see what evidence there was of contributory negligence, bearing in mind the appellant was implementing the very system which the jury found to be unsafe. One can readily understand how a jury may have come to the conclusion on the evidence that the appellant did not establish a case in negligence. However, he did. The jury found it was negligent to leave to an experienced dogman the decision how to undertake his task of getting on the truck. The appellant did no more than the system demanded. He did not, for example, attempt to climb on to the truck recklessly. In my opinion, there was no contributory negligence proved. The question we have to then determine is what order should be made. On behalf of the appellant it is submitted a court should uphold the appeal and enter judgment for the appellant in the sum of $235,000 that being the damages assessed by the jury. For the respondent it is submitted that there should be a new trial. Neither party wishes the issue of damages to be re-litigated. I have already said why I thought there was no evidence of contributory negligence. However, even if some evidence of contributory negligence was capable of being squeezed from the facts, a jury could not, in my opinion, having found the system the plaintiff was implementing to be unsafe, find the actions or inactions of the appellant contributed some forty per cent to his own misfortune. On that view of the matter, a new trial would have been ordered. It may be asked, then, what confidence the Court could have in the verdict of a jury in these circumstances, particularly when the question whether the respondent was liable or not in negligence was hotly contested and could have gone either way. I think there is a real danger that the jury may have compromised its decision. Ordinarily, the Court tries to avoid proliferation of litigation but I think, in the circumstances of the this case, and bearing in mind that no submission was made by the appellant at trial that there was no evidence of contributory negligence, a new trial should be ordered. Since the matter was debated yesterday, we were referred to Illiopoulos v Victorian Railways Board (1981) 55 ALJR 668. In that case, the High Court entered judgment for a plaintiff having concluded that a seventy five per cent finding of contributory negligence should be set aside because of lack of URJ MENDE v LEIGHTON CONTRACTORS PTY LTD (Handley JA) 3 evidence. The High Court obviously came to the view, although the matter does not seem to have been argued, that that was the appropriate course to take in the circumstances. That, however, does not preclude this Court in the present circumstances from ordering a new trial and I am of the opinion that such an order should be made. I would propose there be a new trial limited to liability. The respondent should pay the appellant's costs and to have a certificate under the Suitor's Fund Act. Meagher JA I agree entirely with what Mr Justice Cripps has said except for the course we should now take. It is clear enough that there was no possible reason for the jury to bring in a verdict of contributory negligence. In the circumstances I do not see why the appellant should not have a judgment in the sum of $217,765.82 as submitted by the appellant. The jury did three things. It decided the defendant was negligent. It decided what the damages were. It decided the plaintiff's contributory negligence. The fact that the jury made a gross error in the third of those steps does not mean, in my view, that we should assume it made gross errors in either of the first or the second. I am prepared to follow the course which the High Court followed in Kondis v State Transport Authority (formerly the Victorian Railways Board) (1984) 154 CLR 672 notwithstanding that my brethren are prepared to disregard that authority. Handley JA I agree with my brother Cripps. In this case the plaintiff - an experienced dogman, a union delegate and the union's representative on the Employer's Safety Committee on the site - sued his employer - a builder - for negligence in failing to provide and enforce a safe system of work. The appellant decided to climb from the nearside onto a fully loaded semi-trailer parked near the building site, and not seek assistance from the foreman. This assistance could have been either a ladder or an offsider who could have halted the traffic enabling the appellant to climb safely onto the truck from the offside. There was evidence that the task of climbing the truck could have been undertaken by the appellant in several ways some of which would have been safer than the method he actually used. The evidence did not seem to me to address the question of what exactly the employer could and should have done to ensure the safety of the appellant. There are cases illustrated by Commissioner for Railways (NSW) v O'Brien (1958) 100 CLR 211 and O'Connor v Commissioner For Government Transport (1954) 100 CLR 225 where experienced employees can reasonably be expected to decide how particular work should be done where there is really nothing that the employer can be expected to do except employ experienced and competent staff. However, there is no appeal for the jury's verdict from the plaintiff on the issue of negligence so I will say no more on that question. I agree with my brother Cripps that there was no evidence of contributory negligence fit to be submitted to the jury and the jury's finding of contributory negligence must be set aside. In this case the true issue before the jury was whether there should be a verdict for the plaintiff, or a verdict for the defendant. A finding of negligence against the employer would necessarily mean it was the employer's duty to protect the plaintiff for himself, and that it was not reasonable to leave him to decide how he would climb onto loaded semi-trailers. 4 UNREPORTED JUDGMENTS If the jury were satisfied that the employer was guilty of a breach of this duty then, clearly, there was no scope for a finding that, in undertaking the task which he should have been prevented from commencing, the plaintiff was guilty of contributory negligence. The choice between a verdict for the plaintiff or a verdict for the defendant would pose in stark form the issues illustrated by Commissioner for Railways (NSW) v O'Brien and O'Connor v Commissioner of Government Transport. In those circumstances it seems to me that the jury's verdict represents a compromise and in such a case the Court is entitled to order a general new trial (see Pateman v Higgin (1957) 97 CLR 521). The point that there was no evidence of contributory negligence to go to the jury was not taken at the trial but such a point may be entertained for the first time on appeal. See Hampton Court Ltd v Crooks (1957) 97 CLR 367. The appellant's failure to take the point at the trial resulted in the issue being left to the jury and thus was at least a contributing cause of the compromise verdict. The appellant's counsel may have deliberately decided not to take the point to improve the appellant's prospects of securing a verdict from the jury. In these circumstances it seems to me that the failure to take the point at the trial significantly strengthens the case for a new trial on the issue of liability. 1. Appeal upheld. 2. New trial ordered limited to liability. 3. Respondent to pay the appellant's costs and to have a certificate under the Suitors Fund Act. Counsel for the Appellant: CE O'Connor QC/MJ Maxwell Instructed by: Flannery Mura and Costello Counsel for the Respondent: RR McIlwaine Instructed by: Hunt and Hunt