GHABOUR v ROYAL PRINCE ALFRED HOSPITAL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 17 September 1996 [1996] NSWCA 207 FACTS Appellant/plaintiff appealed jury finding as perverse. HELD (1) Since there was evidence going in favour of the plaintiff and the defendants, the jury was entitled to find against the plaintiff on each or all of the issues and obviously did so. (2) In this case credit mattered very considerably and the jury's verdict reflects a disposition to believe the defendants on this matter. Clarke JA. I will ask Meagher JA to give the first judgment. Meagher JA. The plaintiff, Mr Ghabour, came to this country in 1971 and started working at the Royal Prince Alfred Hospital in 1974 as a cleaner. He sued the hospital on two causes of action and a doctor at the hospital, Dr Harvey, on a third cause of action. In each case the jury found for the defendant. He appeals to this Court on the grounds that in each case the jury's verdict was perverse. The first cause of action against the hospital arises out of these circumstances. In July 1981, while performing his duties, he fell and did some damage to his back. He returned to work later in 1981 and resumed his duties. He sued the hospital for negligence. He says the hospital was negligent inpermitting him to use a polishing machine on a surface which was partly wet from waxing. It was this negligence which caused the machine he was using to get out of control, which in turn caused him to fall. The hospital was also alleged to be negligent in not ensuring that he wore the rubber boots with which it supplied him. As I have said, the jury found for the defendant. The appellant has necessarily undertaken the burden of showing that the jury's verdict was one at which rational people could not possibly arrive. In fact, if one examines the issues and facts which were in dispute in this case, they are considerable. The first one is whether the polisher which he used did go out of control, and if it did, whether that caused his injury. Secondly, whether the hospital was negligent in providing a system of work involving the use of this machine on waxed floors in circumstances where he had suffered no accident for seven years, nor had anyone else suffered any accident. Thirdly, whether the hospital was negligent in not requiring him to wear the rubber-soled shoes with which it supplied him, as distinct from merely providing them to be used as and when he required. Fourthly, whether there was any causal connection between the injury and the not wearing of rubber shoes. Fifthly, whether any disc lesion as alleged by him was caused by the accident, medical evidence called on behalf of the hospital being that no disc lesion was caused by theaccident and whatever strain was caused by the accident had dissipated itself very quickly. 2 UNREPORTED JUDGMENTS It is not that there was no evidence in support of the plaintiff's case. There was evidence in support of the plaintiffs case, but there was also evidence in support of the hospital's case. Since there was evidence going in both directions, the jury was entitled to find against the plaintiff on each or all of the above issues, and obviously did so. I cannot see why not. I might add that the trial before his Honour Studdert J lasted twelve days and no exception has been taken to the conduct of that trial. His Honour gave a long and very careful summing-up of over 100 pages, (to which, again, no exception has been taken), in which his Honour in his usual careful manner put very fairly the arguments of the plaintiff and the arguments of the defendants. I might also add that it follows, I think, from my summary of the first cause of action that this was a case where credit mattered very considerably. The defendants" case basically was that the plaintiff either exaggerated matters out of all proportion or, alternatively, actually lied. The jury's verdict must, I think, to some extent at least, reflect a disposition to believe the defendants on this matter. The second cause of action of the plaintiff was against the hospital, that in re-employing the plaintiff the hospital should not have permitted him to return to his old job. He showed the hospital two certificates, which indicatedthat he had lung trouble and that it was preferable that he perform light duties only. He said that returning to his old job involved contact with pigeon droppings, and this caused further scarring to the lungs, which were already damaged. The period of time in which all this is alleged to have occurred was from November 1982 to July 1983. The hospital's case was that there was no suitable light work available and they gave the plaintiff the alternative of either returning to his old job or not having a job at all. He chose the former. There was a strenuous contest on this matter as to whether any risk of damage to his lungs was foreseeable from the work he was doing, there being medical evidence either way on that question, and a further question of whether any of the damage which he suffered was causally related to the work he did in this short period. On this latter point there was not only evidence either way, but very strong evidence that no damage had resulted at all. The jury must have decided on one or both of these issues against the plaintiff and I cannot see why they were not entitled to do so. The plaintiffs third cause of action was an action against Dr Harvey, which can be summarised as this, I think; that the plaintiff suffered from a lung complaint due to extrinsic allergic alveolitis and that that complaint had been caused by exposure to pigeon droppings. The doctor had received a test which indicated that the plaintiff was allergic to pigeon droppings and the doctor, having been notified of the resultof that test, should have informed the plaintiff of the result and warned him about the dangers of continuing work. This case raised even further issues of fact. It was very much in dispute as to whether the plaintiff did suffer or had at any time suffered from extrinsic allergic alveolitis, the balance of evidence on this question being decidedly against the plaintiff. It was a further issue whether Dr Harvey was in breach of any duty of care to the plaintiff. It is difficult to see how the doctor could conceivably have been, particularly in view of medical evidence that the tests indicating a positive allergy were virtually worthless. URJ GHABOUR v ROYAL PRINCE ALFRED HOSPITAL (Clarke JA) 3 In the third case there was a question about whether there was any loss to the plaintiff by virtue of the doctor's behaviour. It is difficult to see what that loss would be. Indeed, as has been pointed out this morning, there was very formidable evidence that the plaintiff's state of health at November 1982 was exactly the same as his state of health when he retired from work in July 1983. In my view, no conceivable case has been made out by the appellant and the appeal should be dismissed with costs. Clarke JA. I agree. Handley JA. I also agree. Clarke JA. The order of the Court is that the appeal is dismissed with costs. There is a majority of the Court which is of opinion that the costs of the second respondent should be paid on an indemnity basis. That is the order of the Court. (1) Appeal dismissed with costs. Counsel for the appellant: JANET COOMBS Solicitors for the appellant: KEDDIES Counsel for the respondent: J D HISLOP QC/H G SHORE Solicitors for the respondent: WILLIAM K CHAMBERS Counsel for the second respondent: PLG BRERETON Solicitors for the second respondent: BLAKE DAWSON WALDRON