BUJNOWICZ v STYLES AND CAMPBELL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, COLE JJA and Simos AJA 18 September 1996, 18 September 1996 [1996] NSWCA 76 NEGLIGENCE — JURY NEGLIGENCE — alleged failure by respondent company to keep driveway in safe condition — delivery to respondent company's premises — appellant falls in respondent's car park — badly injures his knee. JURY — jury verdict in favour of respondent — difficulty in knowing on what issue or issues jury not satisfied — appeal — whether judge had misdirected or failed to direct jury — whether court could exercise discretion and set aside jury verdict and order a new trial. Held: After referring to the constraint upon the appellant caused by the rules related to setting aside a jury verdict, it had not been shown that the judge made a misdirection or failed to give a necessary direction. In any event, the matters complained of were unlikely to have been of substantial significance in the jury's deliberations. There was nothing in the appeal warranting the court to intervene. Priestley JA This is an appeal against a judgment entered in the defendant's favour following a jury verdict in favour of the defendant. The plaintiff in the proceedings, in 1986, was working as a driver and in the course of his job made a delivery to the defendant's premises at Greenacre. After having made the delivery, he fell and badly injured his knee. He brought proceedings against the company to which he had been making the delivery. His case was that he had fallen in the defendant's car park area which had been in a broken condition in various parts of the concrete forecourt. His proceedings were based on an allegation of negligence against the defendant in that it had failed to keep the driveway in a safe condition, it failed to warn him of that condition, and upon similar allegations of negligence. The proceedings were tried before his Honour Justice Dowd and a jury, in September 1994. They took a number of days. There were a number of issues contested between the parties before the jury. One matter of contest was, did the plaintiff fall when he was walking or when he was running? Another question in contest was whether he had fallen in the defendant's car park or outside it in the public street area. One particular issue, on which some time was spent, was whether the defendant was the occupier of the car park area in which the plaintiff claimed he fell, in the sense that it was in control of that area. In the plaintiff's case it was accepted that there had to be some evidence before the jury that the defendant was the occupier of that area in the sense of having control. There does not appear to have been any dispute between the parties as to the test of occupation and control. The jury's verdict in favour of the defendant means that they had found that the plaintiff had not proved to their satisfaction at least one 2 UNREPORTED JUDGMENTS of the matters necessary to establishing his case. There was no way of knowing which issue or issues the jury were not satisfied on. If the judge had substantially misdirected the jury on a matter material to any one of the issues which the plaintiff had to prove, then, depending on the circumstances and the gravity of the misdirection, the plaintiff might obtain a discretionary ruling from this Court that the jury's verdict should be set aside and that there should be a new trial. The proceedings were obviously of importance to the plaintiff; the injury he suffered to his knee was quite severe. It is understandable that he would wish to bring an appeal against the judgment against him. A matter which persons in the position of the plaintiff may not fully appreciate is that an appeal seeking to set aside a jury verdict is dealt with in quite a different way from an appeal against a judgment of a judge sitting alone. There are far fewer ways of attacking a jury verdict than there are of criticising the judgment of a judge sitting without a jury. The plaintiff was, therefore, constrained by the rules relating to appeals against jury verdicts, in the matters upon which he could seek to rely in seeking to have that verdict set aside. A number of grounds of appeal were filed, the greater part of which looked dubious on a first reading. When the matter came for hearing of the appeal today the grounds of appeal were reduced to two. Both concerned directions or non-directions relating to the issue of occupation by the defendant of the relevant premises. The first of the complaints was that the direction given by the trial Judge concerning the laying of a concrete slab, at some time before the accident, was incorrect. The ground of appeal was that the judge was wrong in telling the jury, in his summing-up, that it was not the evidence that the defendant put the slab in. It was contended in the written submissions in support of the appeal that there was evidence which the judge had not given proper attention to, that it was the defendant that had put the slab in. The relevance of the slab is that it appears to have been the area in which the plaintiff said that he suffered his fall. The problem with this complaint is that what the judge said is literally and substantially correct. There was no evidence that it was the defendant that had put the slab in. There was material generally from which it may properly have been inferred by the jury that it was the defendant who was in some way concerned with the laying of the slab. In the course of argument before his Honour, in the absence of the jury, about this particular direction, counsel for the plaintiff eventually asked the judge to read to the jury, or otherwise refer in detail to the various aspects of the evidence dealing with the slab and what the witness (who had been called for the defendant, and who was at the time of the hearing a director of the defendant) had said about it. The judge did this when he came to the summing-up. In circumstances where the judge both correctly said what he did in regard to the evidence and brought to the jury's attention the whole of the evidence relating to the matter, leaving it to them to decide what weight they would give to that evidence in deciding the question of occupation, it is difficult to see that there is any ground of complaint open to the plaintiff. Realising this, counsel for the plaintiff in the appeal today handed to the Court a direction different from the one that he had asked for at the trial and submitted that that direction should have been given by the judge and that the failure to do so should support the application for a new trial. Assuming in the plaintiff's URJ BUJNOWICZ v STYLES AND CAMPBELL PTY LTD (Priestley JA) 3 favour that the direction I have just referred to was one that could have been given by the judge, I do not think that the submission concerning it has any weight in this appeal. The direction, on the assumption I am prepared to make, might have been given by the judge but I cannot see that there was any obligation upon him to do so even had he been asked. In the circumstances that he was not asked to do so and the matter is raised only at this stage of the proceedings, I think the submission must fail. The other matter of direction which is now criticised arises out of what happened in an answer made by the defendant's counsel to a notice to produce served upon the defendant, which included a requirement that the defendant produce any lease of the premises. This notice was responded to by the defendant's counsel saying there was no such document. In the course of cross-examination of the director, to whom I have already referred, the plaintiff's counsel asked him whether he was aware that there was with his accountants a copy of the lease of the premises in favour of the defendant as lessee. The witness replied, "There was an agreement." The next question was, "An agreement?" and the next answer was, "Whether it is a lease I don't know." That was all that was then said about that matter. Subsequently, in discussion between counsel and the judge on what direction should be made concerning this, counsel for the plaintiff was asking the judge in a general way to tell the jury that the non-production by the defendant of a document relating to the occupation of the premises, when it had such a document in its control, should result in a remark by the judge to the jury, first of all, that that was what had happened and then a direction to them that the non-production by the defendant meant that there was nothing in the document that had not been produced which might assist the defendant on the issue of occupation. The questions and answers which I read out concerning the non-production of the document followed some discussion amongst counsel and the trial Judge about the nature of the notice to produce. It seems that none of the lawyers had in mind at that moment the rule of court that a notice to produce served upon a party has the same effect as a subpoena. They all appear to have proceeded on the basis that the notice to produce still had the effect that it used to have prior to the introduction of the rule equating it, in the case of parties, to a subpoena. It was on that footing presumably that, after the questions and answers I have mentioned had taken place, no further step was taken to see that the obligation of the defendant to produce the document was enforced. The fact is, however, that as a result of what occurred the opportunity the plaintiff had to compel the production of the document was not availed of. and this cannot, at this point, be of any assistance to the plaintiff in regard to this direction. The actual direction which was asked for at the hearing, about this, eventually became that the non-production "is a subject of comment and it ought to be properly a subject of comment". The way in which the submission was put to the trial Judge indicates that it cannot be the basis of a successful appeal point now. There was no obligation upon the judge to make the comment of the particular kind asked for. It was open to him to make it, but not obligatory. The matter upon which reliance has been placed here does not strike me as having been of any critical importance in the case. 4 UNREPORTED JUDGMENTS There was evidence before the jury upon which the jury could have found occupation in the necessary sense against the defendant. The matters which have been raised here concerning directions relate to a minor part of the materials before the jury concerning possession. In view of the number of other issues upon which the plaintiff may have failed, even if there were anything in the complaints about the directions given by the trial Judge, it seems to me very doubtful whether the Court would be moved to exercise a discretion to set aside the verdict and order a new trial. The matter complained of would seem too unlikely to have been of any substantial significance in the jury's deliberations. But the principal point in answer to the appeal, in my opinion, is that it has not been shown that the judge made any misdirection or failed to give any direction which he was obliged to give. The material shows that the directions which went to the jury were very much in line with what was eventually agreed upon after the discussion between counsel and the judge in the course of the trial In my opinion there is nothing shown in this Court warranting the Court to intervene and interfere with the jury's verdict and in my view the appeal should be dismissed. Cole JA I agree. I would add only this. This Court should, in my opinion, be resolute in accordance with the authorities in resisting appeals based upon asserted error regarding directions given by a trial Judge to a jury where either the direction said on appeal to be appropriate was not sought at the trial, or the trial Judge was not asked to correct a direction given to accord with the direction said on appeal to be a proper or appropriate direction. I agree with the orders proposed. Simos AJA I agree with Priestley JA. The order of the Court then is that the appeal is dismissed with costs. Representation: Counsel for the appellant: I Roche Solicitors for the appellant: Firths Counsel for the respondent: G Watson Solicitors for the respondent: Minter Ellison