ELDESSOUKY v CANTERBURY MUNICIPAL COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, COLE JA and WADDELL AJA 4 April 1996, 4 April 1996 [1996] NSWCA 170 Damages for personal injury — Jury verdict for defendant not set aside. Plaintiff employee of defendant — Slips on step in forecourt to defendant's premises — alleges caused by debris from trees not removed after recent rainstorm — Jury returns verdict for defendant — appellant submits verdict against evidence and weight of evidence — held that verdict open to the jury. Orders: Appeal dismissed with costs. Waddell AJA This appeal is against the verdict of a jury which found for the respondent Council on a claim by the appellant for personal injuries suffered when she slipped on a step which was part of the forecourt to the building occupied by the Council as its offices. The accident occurred on 3 October 1986. The appellant had been in the employ of the Council for some years before that as a stenographer. There had been a severe storm in the morning involving wind, heavy rain and hail. The storm had abated by about midday. The appellant left for lunch at about 12.45pm and she went next door to the library. She was walking across the forecourt to return to the office at about 1.25pm when the accident occurred. There was no dispute that the storm had caused leaves and twigs to be distributed over the forecourt. When the appellant went to walk up the steps her foot slipped and she fell down and suffered quite considerable injuries. She was five and a half months' pregnant at the time. The contention raised for the appellant is that the verdict of the jury for the Council was against the evidence and the weight of evidence, and an order is sought that judgment in the Court below be set aside and that the matter be remitted to the District Court for a new trial. The test to be applied is not in doubt and it is that, in order to succeed upon appeal on this ground, the appellant must establish that on the view of the evidence most favourable to the respondent a reasonable jury properly directed and confining itself to relevant considerations could not have arrived at such a verdict. The appellant's case on the issue of liability was confined to her own evidence. She was cross-examined on various matters to which I will refer later, and cross-examination was reasonably capable of affecting the question whether the jury believed her or not. No objection was taken to the summing up of the trial Judge. His Honour said that the first issue which the jury had to consider was whether there was in the circumstances a risk of injury which was reasonably foreseeable by the Council. The second issue was whether there was a reasonably practical means of avoiding that foreseeable risk, and the third was whether the Council's failure to eliminate that risk showed want of reasonable care for the plaintiffs safety. 2 UNREPORTED JUDGMENTS When his Honour turned to the conflicts of evidence involved, he said this: "The defendant says to you firstly there is no evidence that there were lots of twigs and leaves and if there were not then there was no real danger and there was no need to clean them up." I pause there to say that Council for the defendant said that if there had been a great deal of twigs and leaves on the forecourt and steps, then the Council would accept liability. His Honour notes this point, "Counsel for the defendant very properly concedes that if you do not agree with that submission, if you think there were lots of twigs and leaves there st the time, then the Council could have and should have cleaned them up. But they say (that is, the Council) there is no evidence that there were and therefore they were not negligent. That is a matter for you. You weigh up all the evidence." His Honour then went on to deal with issues which would arise if the jury found for the plaintiff on the issues I have mentioned, issues of contributory negligence and damages. There was in the evidence as I have mentioned a number of matters which could have been taken to reflect on the question whether or not the jury believed the appellant. First of all, although the transcript does not obviously paint the whole picture, it gives the impression that the demeanour of the appellant and the way in which she answered questions may well have caused the jury some anxiety about the completeness and accuracy of her evidence. Secondly, the respondent's counsel obviously had some instructions about the footwear which the appellant was accustomed to wear, and he put questions to her directed to establishing an admission that when she was walking up the step she was wearing slingback shoes without the backstrap being in position. She denied this and said that the shoes had been bought for her by her mother to wear in her pregnancy and that the strap at the back was elasticised and was in place at the time. The Council called two witnesses, Kim Napier and Judith Austin, who worked with the plaintiff, and they said, contrary to her evidence in cross-examination, that she frequently wore slingback shoes in the building, treading on the strap at the back, referring presumably to shoes that had a strap which went into a buckle instead of an elasticised strap which was not capable of being unfastened. They also said, contrary to her answers in cross-examination, that she frequently walked around the office without any shoes. Also, a male witness, who was the Assistant Treasurer at the time, said that he had had occasion to speak to the plaintiff about the way she wore her shoes. In the result, the Council did not establish that she had not been wearing shoes properly at the time of the accident. In his address to the jury, counsel for the Council did not suggest to the jury that there was anything wrong with the shoes which the plaintiff was wearing. The matter then stood in the position that the jury were able to take into account the evidence of the witnesses of the Council, who contradicted the plaintifFs evidence as to her custom in wearing shoes in the building, on the ground of the credibility which they might attach to her evidence. I pause here to say that counsel for the appellant drew the Court's attention to the fact that the trial Judge did not give any direction to the jury as to the way in which they might use the evidence relating to her shoes. This is undoubtedly so, but, as counsel concedes, no direction was sought from the Judge and there is no ground of appeal. That submission is simply put by way of background. As the evidence stood the jury might well have taken it into account in deciding not to accept the plaintiffs account of the accident. URJ ELDESSOUKY v CANTERBURY MUNICIPAL COUNCIL (Mahoney P) 3 There were two other matters regarding the answers which the appellant gave to doctors examining her for the purpose of the proceedings. On analysis, these might perhaps have seemed not to add up to a great deal but, nonetheless, the jury were entitled to regard these matters as affecting the credibility of the plaintiff. I turn now to the evidence of the appellant as to the circumstances in which she fell. Her evidence was that following the rainstorm there were twigs and leaves in the forecourt and on the steps as I have already mentioned. In cross-examination she said that she did not see any twigs or leaves on the step before she put her foot on it. She said that, when she put her foot on the step and slipped, she could feel a twig beneath the shoes and, after she fell, looking back she saw there were twigs and leaves where she had stepped. Her evidence as to the quantity of twigs and leaves in the forecourt was not to the effect that there were a great many there, although in cross-examination she was encouraged to say that there was a great number of twigs and leaves in the area. The jury were entitled on this evidence to say, having regard to the matters of credibility, that they did not accept that the plaintiff put her foot on a twig on the step, particularly bearing in mind that, as she said, on approaching the steps she did not see any twigs or leaves on them. In this respect they may have taken into account that a woman who was five and a months' pregnant would have been more careful, having seen twigs and leaves on the more distant parts of the forecourt, to make sure the step was safe. Accordingly, it seems to me that the state of the evidence was such that the jury may not or were entitled not to believe that the plaintiff stood on a twig. I do not say that that is the conclusion which would necessarily follow from the evidence and with a differently constituted jury or in a matter heard by a Judge, the result might have been different. But as the matter of fact was remitted to the jury the test which I have mentioned has to be applied. If the test is applied then it seems to me that there is no ground for disturbing the verdict of the jury. That is not completely an end of the matter because on the issues put to the jury they might well have taken the view, to put it simply, that it was not negligent on the part of the Council to have left the steps in the condition in which the plaintiff alleges they were left so soon after the storm. It is true that Mr Russell, who was in the employ of the Council at the time, was encouraged to say that if there had been a great many leaves in the area, they should have been cleaned up within 15 minutes or half an hour. The jury, however, using their common sense and taking into account their own experience of life, did not necessarily have to accept that evidence. The only concession was that if there had been a great many leaves and twigs on the steps then the Council would have been liable. In the way the jury saw the evidence as to the quantity of twigs and leaves in the area they were entitled to say that the Council was not negligent. For those reasons it is my opinion that the appeal must fail. I propose orders to the effect that the appeal be dismissed with costs. Mahoney P I agree with what has been said by Waddell AJA. As the matter is no doubt of some importance to the appellant, I shall add one or two observations of my own. Mr Conomos, at the commencement of his submissions for the plaintiff, sought to rely upon the evidence as to shoes to which Waddell AJA has referred. For myself, I would have required some further elucidation of that aspect of the matter, had the matter been before us and not dealt with as it apparently was below. 4 UNREPORTED JUDGMENTS It appears that no reference was made to shoes in the addresses and of course none in the summing up. Why this was so must only be a matter of speculation and I do not speculate about it. It may be that the course that was taken in relation to the evidence as to shoes, in the addresses and in the summing up, resulted from some kind of consensus or agreement or unspoken arrangement between counsel at the time. It is possible that counsel for the plaintiff felt that any direction asked for in relation to shoes would not be of advantage to his client. I do not know. But in the end, as has been pointed out several times in address, the matter is not within the ambit of the contest before this Court because it has not been the subject of any complaint in the notice of appeal I think the matter therefore must be put aside. The second matter to which I would refer is this. In the course of the summing up the trial Judge said: "The defendant says to you firstly that there is no evidence that there were lots of twigs and leaves and, if there were not, then there was no real danger and there was no need to clean them up. Counsel for the defendant very properly concedes that if you do not agree with that submission, if you think there lots of leaves and twigs there at the time, then Council could have and should have cleaned them up. But they say there is no evidence that there were and therefore they were not negligent. That is a matter for you. You weigh up all the evidence. If you find that they were not negligent, then you will find the verdict for the defendant and that will be the end of the matter." It may be that the Judge and counsel, when they referred to matters of this kind, had in mind that at the commencement of the cross-examination of the plaintiff the first thing that was dealt with by counsel for the defendant was the extent of the debris that was there. The plaintiff was asked, "Just how many leaves and twigs were there on the steps in that courtyard area?" and ultimately she gave an answer, "There's a few twigs and leaves from the trees. There weren't a lot - a lot of twigs. There was not a lot of leaves, but there were twigs blown from the trees and leaves blown from the trees as well. Q. Were there many, many of them on each step or were there just one or two here and there? A. There was a couple there - a couple there - different everywhere." The jury may well have thought that, taking into account evidence of that kind, it was proper for them to find, as the Judge indicated the defendant had suggested, a verdict for the defendant. In my opinion it was within their power to do so. I would add this. The matter was decided by a jury. The determination of the relevant issues was committed to the decision of the jury. In litigation it seldom happens that both parties are satisfied with the verdict which is given, not infrequently such is the case when a jury gives a verdict. But there are limits upon the extent to which this Court can and should interfere with a jury's verdict in a case such as this. I do not mean to suggest by what I have said that, were those limits not there, I would come to a different decision, but the fact is that this Court can in the present case do no more than make the order to which Waddell AJA has referred. Cole JA At trial there were at least two issues of fact for the jury. One, did the appellant slip on the twigs and leaves? Two, if so, was it a breach of duty by the Council not to have removed any such twigs and leaves from the steps some one and a half hours after the storm stopped? In finding a verdict for the defendant, the jury could have found either or both of those matters adversely to the URJ ELDESSOUKY v CANTERBURY MUNICIPAL COUNCIL (Cole JA) 5 appellant. In those circumstances the jury's verdict can not be successfully challenged on appeal in accordance with well established principle. I agree with the orders proposed. 5 Mahoney P: The order is that the appeal is dismissed with costs. Counsel for the appellant: Mr J Conomos Solicitors for the appellant: Colin Daley Quinn, Kogarah 10 Counsel for the respondent: Mr M Robinson Solicitors for the respondent: Hunt and Hunt, Sydney