GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and COLE JJA 4 July, 2 August 1996 [1996] NSWCA 568 Appeal and new trial — verdict of jury — apparent inconsistency — whether jury performed proper function. Damages — contributory negligence — inadequate damages. The plaintiff, a supervising employee of the defendant, alleged that he injured his knee when he fell while inspecting toilets. At issue was whether the defendant had been negligent in failing to provide a safe system of work, whether the plaintiff had failed to take care of his own safety, and the extent of the injuries for which damages should be paid. These issues were left to the jury in the form of three questions. The jury held that though the defendant had been negligent, the plaintiff had also been negligent and was 100% to blame for any injury, and that the plaintiff's damages caused by the negligence of the defendant were an out-of-pocket expense of $38 incurred on the day of the fall. The plaintiff appealed seeking a new trial on the grounds that the finding of 100% contributory negligence was perverse and the damages inadequate. The issues in the appeal became whether the jury's answers to the questions finding $38 damages arising from the defendant's negligence was inconsistent with the answer that the plaintiff was guilty of 100% contributory negligence. HELD, dismissing the appeal: (1) The apportionment of 100% for the plaintiffs contributory negligence was open to the jury; (2) The apportionment was not inconsistent with the facts, or with the finding that the defendant was negligent; (3) It was open to the jury to find that the plaintiff suffered no discomfort worthy of general damages; Zelkovic v SRA (unrep CA 2519195) distinguished; (4) The jury's answers to questions 2 and 3 could only be held to be inconsistent by the application of legal principles which had not been explained to the jury; (5) The jury answered the questions and the apparent inconsistency was a result of a non-direction; (6) There was nothing to indicate that the jury had failed to follow the judge's directions or otherwise misunderstood their function: see Carr v Sydney Council (1963) 80 WN (NSW) 397; Coroneo v Kurri Kurri Amusement Co Ltd (1934) 51 CLR 328; Huysse v Snowy Mountains Authority [1975] 1 NSWLR 401; (7) The Court should refuse a new trial where the verdict would be small: see Hannan v Cooper [1850] Legge 634; (8) A new trial is not lightly granted and there was no substantial wrong or miscarriage: see Dakhyl v Labouchere [1908] 2 KB 325 n; Brown v Dean [1910] AC 373. Clarke JA The facts are set out in the judgment of Handley JA. I agree with that judgment but I wish to add a few observations of my own. For the sake of clarity it is desirable that I set out in these observations the questions asked of the jury and their answers to those questions: "1. Was the Defendant negligent in failing to provide a safe system of work? If yes, go to question 2. If no, verdict for the Defendant and disregard all other questions. 2. Was the Plaintiff negligent by failing to take care of his own safety? If yes, what is the percentage in relation to his negligence? If no, disregard the assessment of the Plaintiff's negligence. 2 UNREPORTED JUDGMENTS 3. What is the assessment of damages arising out of the Defendant's negligence? (Do not discount this amount, if you have found the plaintiff guilty also of negligence.)" These were submitted by the legal representatives of the parties and his Honour, quite properly, left them to the jury to answer. It will, however, be observed that there is no element of causation expressly mentioned in questions 1 and 2. In this respect the questions failed to conform with the usual practice. In many cases this should not matter. In the present case, however, it seems clear to me that, while the jury reached the conclusion that the defendant had been negligent in failing to place warning signs outside the toilet, its negligence was not causative of the plaintiff's loss in a realistic way. This was a perfectly reasonable finding in the context of this trial given that the defence case was that the plaintiff was well aware that the floors were being washed or likely to be washed at the time he entered the toilet. What is more to the point is that a reading of the trial judge's directions on the questions which the jury were required to answer demonstrates that the jury in fact attended carefully to the instructions and answered in accordance with them. The instructions are worth repeating - "Now, in relation to the questions that have been provided to you, it has been explained by counsel for the plaintiff in his final address.[,] I think accurately, that you do not go beyond question | if in fact you find against the plaintiff and answer that question "No". If you answer it " Yes', then you do press onto the second question and, in relation to that question, if you answer that question Yes", there is a second question in that, a further question in the second question, namely, what percentage should be given to what I describe as negligent conduct on the part of the plaintiff: and that would be expressed, if you found the case of contributory negligence proved, as a figure. I do not give you any indication whether there is any appropriate percentage for contributory negligence, or, if there is, what it should be. It can be a figure of anything from 10, 20, 30, any figure at all. The important thing to remember is that, if you do find contributory negligence and you do proceed, as you are required to do, to simply state a percentage, that is all you have to do in relation to questions of contributory negligence. That is the end of the matter because you should then proceed to the third question following the words in brackets in the third question. In relation to the third question, that is a money sum that you are requested to assess if you find that the defendant was negligent in answer to question 1, but it is important to be clear that if you follow the route of these questions, the path of these questions written out for you, and if you do find contributory negligence and you state a percentage, that you do not attempt to apply that percentage to the assessment of damages that you make against the defendant. That will be done after you have brought in your verdict. I hope that is made clear to you. I may offer some words by way of comment in relation to how you will address the question of contributory negligence or the respective responsibilities of the plaintiff and the defendant if you so regard the plaintiff's conduct as constituting contributory negligence. It involves a question of culpability of each party and that really is a departure from the standard of reasonable care. Having done that, it is also important, if you found a degree of culpability on the part of the plaintiff, to have regard to what the causative effect is: that is, what, if any, damage has been caused by the conduct of the party. It is one thing to find, for example, that an employee has been guilty of conduct that constitutes URJ GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD (Clarke JA) 3 contributory negligence in the sense that the party did not take sufficient care for his own safety but, in order to get to that point, it is important to look at the situation and ascertain whether that negligent conduct led to damage and, if so, what damage in the overall scheme of things was occasioned by conduct which could be correctly described as lack of due care for his own safety in the circumstances. It may not have occasioned that much damage of itself and that is a matter that you should take into account and, similarly, in the case of the employer's conduct on this question of apportionment by way of a percentage." It will be seen that the jury were asked to consider question 1 and thereby to proffer a decision as to whether the defendant had been negligent in not posting warning signs. It was instructed that if, as fumed out, it answered question | in the affirmative it should then go to question 2. This question was also answered in the affirmative with the consequence that the jury were required to consider apportionment and on that issue specific instructions were given on the questions of causation and culpability. Clearly enough the jury concluded that taking account of both those factors an apportionment of 100 per cent against the plaintiff was appropriate. The instructions expressly informed the jury that if it found contributory negligence and expressed its percentage it should proceed to the third question which was, of course, the amount of damages; (This question is consistent with the requirement in s10(2) of the Law Reform (Miscellaneous Provisions) Act 1965.) In strict conformity with his Honour's instruction the jury answered the third question. What, as it seems to me, occurred was that that the jury gave very careful attention to these instructions and followed them to the letter. Although I was initially disposed to the view that there was an inconsistency between answers 2 and 3, insofar as a finding of 100 per cent responsibility would seem to deny the existence of any causal nexus between a breach of duty by the defendant and the damages suffered by the plaintiff, I believe, on reflection, that logically that is not necessarily correct. This is because the trial judge instructed the jury, properly, they were required to take into account not only causation but also culpability in apportioning responsibility. It seems to me that the mere fact that the jury's apportionment was 100 per cent in favour of one or other party does not necessarily deny the existence of the relevant causal nexus. This is because if, for instance, the jury took the view that the defendant's negligence was a cause of the plaintiff's injuries it could nevertheless find in the way that it did upon the basis that the plaintiff should bear by far the greater responsibility for his own injuries and his degree of culpability was so high that, taking the two together, the apportionment was justified. Although it may be thought that there are logical difficulties with the ultimate answers to the questions it seems to me that the jury adhered conscientiously to the instructions which it was given and brought in answers reflecting a serious response to those instructions. Furthermore, it seems to me that, if the jury had been informed that if they apportioned responsibility as to 100 per cent against the plaintiff they should not answer question 3 then the difficulty presently confronting the court would not have arisen. That instruction was not given and, obedient to their duty as expressed by the trial judge, the jury gave an answer to the question. It follows that, in my opinion, the appellant has failed to establish the substantial wrong or miscarriage which is essential to the grant of a new trial. 4 UNREPORTED JUDGMENTS I also agree with Handley JA that, in the way the case was fought, an assessment of the plaintiff's damage at $38 was neither perverse nor irrational. In those circumstances the cases referred to by his Honour establish, as his Honour found, that a new trial should not be ordered. Handley JA This is an appeal by a plaintiff from the judgment entered for the defendant following questions answered by a jury in an employer's liability case. The accident in question occurred on 20 June 1986 but the action commenced in 1989 did not come for trial before Hunter J until June 1994. The plaintiff, a supervising employee of the defendant, alleged that he was injured when he fell at the Hoyts Theatre complex in the City about eight o'clock in the morning. He claimed that he had entered one of the toilets to inspect it and slipped, injuring his knee. There was a dispute as to whether the floor was wet and slippery. The plaintiff knew that at that hour the toilets were being cleaned. He told Dr Bannister, as recorded in his report of 27 January 1987, that he had walked from a carpeted area outside the toilet into a tiled area inside, had not been concentrating, and slipped. At the trial his evidence was that the tiled floor was wet and as slippery as ice. There was evidence to the contrary from Mr Mobbs called for the defendant who said that the tiles were of a non-slip type with a rough surface, somewhat like sandpaper. This was a question for the jury. The extent to which the plaintiff was in fact injured was also in dispute and in his closing address Mr Littlemore QC for the defendant invited the jury if they found a verdict for the plaintiff: to award him no more than $38, this being the amount incurred when the plaintiff saw his doctor on the day of the fall. There was no evidence that the plaintiff incurred any other expense that day. The jury were invited with the agreement of both counsel to answer the following questions: "1. Was the Defendant negligent in failing to provide a safe system of work? If yes, go to question 2. If no, verdict for the Defendant and disregard all other questions. 2. Was the Plaintiff negligent by failing to take care of his own safety? If yes, what is the percentage in relation to his negligence? If no, disregard the assessment of the Plaintiff's negligence. 3. What is the assessment of damages arising out of the Defendant's negligence? (Do not discount this amount, if you have found the Plaintiff guilty also of negligence)." These questions were not completely appropriate. The defendant's case was that the accident was the result of the plaintiffs own lack of care for his own safety and he was solely to blame. The plaintiffs case, based on a failure by the employer to provide a safe system of work was that a warning sign should have been placed outside the toilet to warn persons entering the toilet, that the floor was wet and slippery. The employer was bound in the interests of its business and perhaps by public health legislation to maintain the toilets in a clean and wholesome condition. They had to be cleaned and anybody entering the toilets to inspect them at that hour when cleaning was in progress had to expect that they might be wet. The plaintiff acknowledged this in his evidence. URJ GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD (Handley JA) 5 The only possible precaution available to the employer was the provision of some warning sign. However, the plaintiff whose duty it was morning by morning to inspect the toilets admitted that he was well aware they were being cleaned at the time he made his inspection. Questions 1 and 2 did not require the jury to address the issue of causation. Question 1 simply asked whether the defendant was negligent in failing to provide a safe system of work, and question 2 whether the plaintiff was negligent in failing to take care of his own safety. The judge in his summing-up required the jury to consider causation, particularly on the issue of contributory negligence. They were directed on conventional lines that in considering the degree of contributory negligence they had to assess the culpability of the departures by the parties from the standard of reasonable care and the degree to which those departures contributed to the accident and the injury. The jury answered question 1, finding that the defendant had been negligent in failing to provide a safe system of work. In the light of the way in which the case had been conducted, they must have found that the defendant should have provided some warning sign. They answered question 2 yes, and stated that they found that the plaintiff had been 100 percent negligent in failing to take care for his own safety. If the questions had been more appropriately framed, they would have directed the jury not to answer question 3 if they found the plaintiff 100% to blame. If counsel or solicitor appearing for the defendant, or the judge, had been quick enough, the associate may have been directed not to ask the third question. No doubt the answer to the second question took those present by surprise, but the third question was asked and the jury answered $38. The jury were then discharged without objection and the case adjourned for further consideration. On the adjourned date the judge stated that on reflection he considered that the jury had done "precisely as they were instructed". He also said that the jury had obviously accepted the submission of counsel for the defendant as to the plaintiffs damages. After a brief discussion he directed the entry of judgment for the defendant. The plaintiff appealed seeking a new trial. A number of grounds were argued, principally that the finding of 100% contributory negligence was perverse and the damages inadequate, the jury having failed to award any general damages. In my judgment the grounds pressed in argument by counsel for the appellant failed. An apportionment of 100% for the plaintiff's contributory negligence was open to the jury both legally and on the facts and was not inconsistent with the answer to question 1. See Fleming on Torts, 8th ed, 1992 at 277-8; Clerk and Lindsell on Torts, 17th ed, 1995, at 68-9. Compare Pitts v Hunt (1991) 2 QB 24 at 48, 51, 52. There was no inconsistency in my view between the answers to questions 1 and 2. The jury's award of $38 damages was also open. This out-of-pocket expense was proved, but no other expense for some considerable time afterwards. The plaintiff did not lose any wages that day or in the weeks that followed. This Court in cases such as Zelkovic v SRA (25/9/95 unrep) has set aside jury awards limited to the plaintiff's out-of-pocket expenses because the jury failed to award anything for general damages. In my opinion those cases where the out-of-pocket expenses were incurred over a substantial period do not govern because if, as the jury in those cases found, such expenses were reasonably incurred as a result of the defendant's tort, the plaintiff must have been entitled to some general damages. 6 UNREPORTED JUDGMENTS In this case however it was open to the jury to find, as Mr Littlemore submitted in his closing address, that the inconvenience of visiting the doctor on the day of the fall was inconsequential, and the plaintiff experienced no more than momentary discomfort unworthy of compensation. The Court therefore considered that the grounds of appeal as argued failed, and I was in the course of delivering an extempore judgment when Clarke JA intervened having noticed that question 3 asked the jury to assess the damages "arising out of the defendant's negligence". The Court's attention had not been directed to the precise form of this question and the official transcript included in the appeal book certified by the solicitors as correct recorded that the jury's answer to the third question was "assessed damages arising out of the accident at $38n. An answer in that form would not be inconsistent with a finding of 100% contributory negligence. In the discussion which followed, it became clear that the jury's answer to question 3 had been "$38" and nothing more. The jury therefore found that the plaintiff suffered some damage as a result of the defendant's negligence, and it appeared that this may have been inconsistent with the answers to question 2. The Court then heard argument on the consequences of these answers and reserved its decision. The difficulty arises from the form of the questions which failed to provide for the situation which arose in the light of the jury's answers to question 2. Provision was made for some of the questions not to be answered in certain events, but these did not include the situation which actually arose. The jury were directed to answer the questions and under s 90 of the Supreme Court Act it was their duty to do so. In the events that happened the judge inadvertently misdirected the jury in requiring them to answer question 3, but of course neither counsel took the point. In the circumstances the jury's answer to question 3 provides no evidence of misconduct on their part and in particular does not indicate any failure on their part to comply with the directions they had received from the judge. Nevertheless the apparent inconsistency is there, and the issue is whether a new trial should be ordered on that ground. This requires the Court to consider whether there has been some substantial wrong or miscarriage. See SCR Pt51 r16(1). A new trial is not lightly granter In Dakhyl v Labouchere [1908] 2 KB 325 n HL at 327 Lord Loreburn said: "Tn all cases (a new trial) is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage". Later in Brown v Dean [1910] AC 373 at 374 he said: "When a litigant has obtained a judgment in a Court of Justice... he is by law entitled not to be deprived of that judgment without very solid grounds". See also Ryan v Ross (1916) 22 CLR 1 at 33-4; and Hoyts Pty Ltd v O'Connor (1928) 40 CLR 566 at 576. One general principle relevant in this case is that stated in Coroneo v Kurri Kurri Amusement Co Ltd (1934) 51 CLR 328, in the joint judgment of Rich, Evatt, and McTiernan JJ at 346 "Whether a jury's unreasonable finding on one issue or question should be regarded as destructive of any or all of its findings on another must... depend on all the circumstances of the case, particularly the charge of the trial judge and the whole conduct of the trial". URJ GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD (Handley JA) 7 This Court has not been astute to order a new trial on the ground of inconsistencies between the jury's verdict on two or more counts or in their answers to questions left to them in the summing-up. In Huysse u Snowy Mountains Authority [1975] 1 NSWLR 401 at 404 Hutley JA said: "I can see no reason why, when a jury is told the damages which will flow from either count are the same, and they find a verdict for the plaintiff on one count and for the defendant on another count, even though it is somewhat difficult to understand what it was that caused them to differentiate, they have acted improperly". At 408-9 Samuels JA said: "The findings on liability may be somewhat curious. It may even be conceded that they might be regarded as inconsistent, but they fall very far short of providing any satisfaction that in pronouncing them the jury failed to perform their duty... the jury were plainly told to award the same damages whether they found for the plaintiff on one count or both, and they could well have answered as they did without any lack of appreciation of what their task involved". Likewise at 410 Mahoney JA said: "The fact that the jury found for the defendant on the second count does not, in my opinion, indicate that they so misunderstood the nature of their task as to warrant (a new trial)". Earlier in Carr v Sydney City Council (1963) 80 WN (NSW) 397 the Full Court refused to order a new trial on the ground that the verdicts of the jury were inconsistent. Else-Mitchell J, with whom Macfarlan J concurred, said at 406: "in some circumstances the return of inconsistent verdicts requires (a new trial) but only because the inconsistency demonstrates a failure by the jury to perform the function which was committed to it so that its verdict is, in reality, no verdict at all. In my view however this result is not produced simply by saying that there is an inconsistency when the verdicts on each of the formal issues constituted by the pleadings are compared one with the other. It is necessary to go further and to show that in the light of the directions which the trial judge gave, the jury must have so disregarded or misunderstood them that their verdict denotes a failure to perform the function committed to them. To reach this conclusion a wide discretion must be allowed to the jury because its members are not legally trained...". In Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 it was contended that the jury's answers to specific questions were inconsistent with their general verdict. Priestley JA considered whether the verdict and answers disclosed that the jury had "not properly discharged their function" (at 192-3). McHugh JA said at 203 that in order to warrant a new trial: "... the answer to the question must be necessarily inconsistent with the general verdict. I do not think that it is enough that the answers are or may be inconsistent with each other unless the answer on which the appellant relies is also necessarily inconsistent with the general verdict. No case establishes that a new trial should be ordered because answers are inconsistent with each other but not with the verdict. The whole of the jury's process of reasoning is not exposed". See also at 202-3. In the present case the jury were not asked to return a general verdict, and the parties expressly or impliedly consented to the judge entering judgment on the jury's answers. See Otis Elevators Pty Ltd v Zitis at 197 per McHugh JA I have already held that the alleged inconsistency between the answers to questions 2 and 3 does not establish that the jury misconceived their function or failed to understand and apply the directions of the trial judge. They were 8 UNREPORTED JUDGMENTS required to answer question 3 despite their answer to question 2. The judge had directed the jury on the issue of apportionment as follows (306T-W): do not give you any indication whether there is any appropriate percentage for contributory negligence, or if there is, what it should be. It can be a figure of anything from 10, 20, 30 any figure at all". He then directed the jury that in arriving at their apportionment they should consider "the culpability of each party and that really is a departure from the standard of reasonable care" (307N-O). He then said (307 P): "Having done that, it is also important, if you found a degree of culpability on the part of the plaintiff, to have regard to what the causative effect is; that is, what, if any, damage has been caused by the conduct of the party". The jury therefore could have arrived at their apportionment of 100% for the plaintiffs contributory negligence by finding that although the defendant's negligence had been a cause of the accident the combined culpability and causative effect of the plaintiffs conduct warranted an apportionment of 100% for his contributory negligence. Such a finding is authorised by s10(1) of the 1965 Act which entitles the tribunal of fact to reduce the claimant's damages "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". I see no reason why a reduction of 100% should be held to be outside the authority thereby conferred. See Ferrcom Pty Ltd v Commercial Union Assurance (1993) 176 CLR 332 at 343. In some cases an inconsistency may arise as a matter of commonsense. Where however the inconsistency arises as a matter of law, it can only be established if the legal principles which create that inconsistency were explained to the jury. If that was done, inconsistency will establish that the jury have ignored the summing-up, or otherwise failed to properly discharge their function. But in this case the inconsistency relied upon would not be apparent to ordinary jurors, and the judge's directions did not alert them to the risk if they assessed an amount under question 3 after finding the plaintiff 100% responsible. Having regard to the form of the questions, there was in the result a material non-direction, but neither party is in a position to complain. For all the court knows the jury may have applied the "but for" test of causation in answering question 3. If they had done so they would have been wrong in law (see March v E and MH Stramare Pty Ltd (1991) 171 CLR 506) but on that approach there would be no inconsistency between the reasoning leading to their answers to questions 2 and 3. As McHugh JA said: "The whole of the jury's process of reasoning has not been exposed". This analysis, and that of Else-Mitchell J in Carr v Sydney City Council (above) shows that where the inconsistency relied on arises by law, and not as a result of commonsense, the appellant must be able to demonstrate that the jury could not have given the verdicts or answers they did if they had followed the directions of the trial judge. In my opinion therefore there is no relevant inconsistency between the jury's answers to questions 2 and 3. Independently of the foregoing I have also reached the conclusion that a new trial should be refused, having regard to the minuscule amount found by the jury in answer to question 3. The plaintiffs case at the-trial for all practical purposes failed. Had the difficulties been addressed before the jury were discharged, the judge may have asked the jury to reconsider their answers to questions 2 and 3, and given them further directions to assist them in that task. It would be URJ GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD (Cole JA) 9 reasonable to conclude that the jury would either have reduced the 100% figure by a small percentage, or maintained that answer and given no answer to an amended question 3. In these circumstances this Court should follow the decisions of the former Full Court refusing to order a new trial where it was clear that the likely verdict would be very small. See Hannan u Cooper [1850] Legge 634, Brenan v Russell (1862) 1 SCR (NSW) 300, Hoffnung u Simpson (1881) 2 LR (NSW) 133, O'Connell v Whittaker (1885) 1 WN (NSW) 155, Helmore v Simons (1902) 19 WN (NSW) 25, Ex parte Jones (1906) 23 WN (NSW) 141, Killen v Robinson (1907) 24 WN (NSW) 8 and Rowland v Fullagar (1911) 11 SR (NSW) 76. See also Cummings v Murphy (1967) VR 865. In my judgment the Court can properly find that no substantial wrong or miscarriage has been occasioned within SCR Pt51 rl16(1). As Samuels JA said in Burchett v Kane (1980) 2 NSWLR 266 at 271: "To grant or refuse a new trial is always a matter of discretion". In my opinion this Court should not order a new trial, and the appeal should be dismissed with costs. Cole JA The question whether the plaintiff who slipped on a toilet floor at a theatre should recover damages, and if so how much, took three days to resolve before a judge and a jury, a hearing before the judge on the fourth day, and an appeal to three judges of this Court in consequence of an alleged inconsistency in the jury's verdict between a finding that the theatre owner was negligent, that the plaintiff was 100% negligent in failing to take care for his own safety and an awarding of $38 damages. Had the matter been heard by a judge alone the case would have been heard and judgment delivered within a day and there would have been no appeal. This highlights the absurdity of actions being heard by juries in cases of this nature. Society and the parties have been put to entirely unnecessary costs, and other litigants, whose cases might have been heard in the saved time, have been denied a hearing. This delay, with its attendant costs, flows entirely from there remaining in the Supreme Court Act provisions which permit such actions to be tried with a jury. The public are entitled to complain about delays in the court structures and attendant costs, but the Parliament is not whilst ever it leaves such provisions on the statute books. I agree with the reasons and orders proposed by Handley JA In my opinion it would be absurd for this Court to order a new trial with its attendant expense when the prospect of the plaintiff recovering at all is so remote, and if any damages were recovered, they would be minuscule. Appeal dismissed with costs. Counsel for the Appellant: CA Evatt/M Rollinson Solicitors for the Appellant: Teakle Ormsby and Associates Counsel for the Respondent: SM Littlemore QC Solicitors for the Respondent: Malcolm Johns and Co