AMWAY OF AUSTRALIA PTY LTD v VERNALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, BEAZLEY and STEIN JJA 12 November 1997, 18 December 1997 [1997] NSWCA 20 Jury verdict — negligence and breach of statutory duty — whether judge's summing-up to jury overstepped role of jury as finders of fact, so that there was an unfair trial — whether judge erred in failing to take statutory counts away from the jury — whether judge failed to adequately put the appellant's case on damages to the jury The respondent was injured in a workplace accident and claimed against her employer in negligence and for breach of statutory duty. A jury entered a verdict for the respondent of over $500,000. On appeal: The jury's verdict was challenged on 3 bases: 1. that the summing-up of the trial judge was such that the appellant (defendant at first instance) could not obtain a fair trial. 2. that the trial judge erred in failing to remove all of the statutory counts from the jury. 3. that the trial judge failed to adequately put the appellant's case on damages to the jury. Held: The trial judge's summing-up and redirections to the jury, taken as a whole, did not have the effect that the judge overstepped his role and usurped the role of the jury to decide the facts in the case. The essential issues of fact in dispute were left to the jury. They involved a decision as to which party's account was to be believed. Nor was there any unfairness to the appellant in the judge's summing-up in relation to damages. Jones v Dunkel [1958-1959] 101 CLR Murray v Wilson [1962] NSWR 1155 Hoger v Ellas [1963] NSWR 1033 applied Meagher I agree with Stein JA. Beazley JA I agree with Stein JA. Stein JA This is an appeal from a verdict of a jury which found in favour of the plaintiff (the respondent in the appeal) in relation to injuries she suffered in the course of her employment by the appellant at its premises at Castle Hill. The jury found for her on negligence and certain breaches of statutory duty arising under the Factories, Shops and Industries Act, 1962. Judgment was entered for the plaintiff in the sum of $534,034.91. The attack on the jury verdict can be divided into three components: 1. that the summing-up of the trial judge was such that the appellant (defendant at first instance) could not obtain a fair trial. 2. that the trial judge erred in failing to remove all of the statutory counts from the jury. 3. that the trial judge failed to adequately put the appellant's case on damages to the Jury. 2 UNREPORTED JUDGMENTS DID THE SUMMING-UP CREATE A MANIFEST UNFAIRNESS TO THE APPELLANT? It is the submission of Mr H G Shore, on behalf of the appellant, that the trial judge's summing-up to the jury was so unfair to the defendant as to deny it a fair trial. He submits that a reading of the summing-up indicates that it was an exercise in powerful and sustained advocacy on behalf of the plaintiff. So extreme was the summing-up that, on the issue of liability, he asked his Honour to withdraw the whole of it. His Honour declined but gave a series of redirections to the jury on a variety of issues which were the subject of complaint by counsel. Mr Shore submits, however, that no redirection could get over the judge's 'hyperbole' and advocacy. In his written submissions, counsel for the appellant describes his Honour's summing-up as: ... a prolonged and relentless attempt to persuade the jury that they ought find the appellant guilty of negligence, with no contributory negligence and rejecting such attack [as] had been made upon her credit. His Honour's approach infected every aspect of his summing up including his summing up upon the question of the statutory counts and as to damages. In essence, the appellant's claim is that his Honour abandoned his judicial role and became the advocate for the plaintiff. The respondent was working in the 'machine room' at the appellant's premises on 25 July 1984. She was, at the time, a rather large woman. Her occupation was supervisor of the mail room which included the interconnecting machine room. The latter room contained a letter slitter machine. Mail was delivered to the machine room on pallets. After using the letter slitter, Mrs Vernall was moving towards the interconnecting door to the other room when she tripped on the pallet and fell to the ground. A real issue arose at the trial as to the extent of the gap between the pallet and a small table on the respondent's right, adjacent to the door. The respondent's evidence was that it was around 18 inches. This was supported by other evidence. The defendant's case was that the gap was in the order of 3 or 4 feet. There was also dispute about whether the table was in the position described by the respondent. The summing-up to the jury was very lengthy, continuing over two days. It occupies 135 pages of the Appeal Book. Following submissions by the respective counsel for the parties on the contents of the summing-up, his Honour gave further directions to the jury. These occupy a further 14 pages of the Appeal Book. His Honour redirected the jury, inter alia, on the onus or standard of proof; his use of the example of a twisted plank over a chasm; the evidence of Mrs Bermingham; the statutory counts; Dr Aroney's evidence; the effect of the absence of witnesses and heads of damage. Although no complaint was made after the redirection, counsel for the appellant submits that no redirection could have cured the biased nature of the summing-up and, some of the re-directions only exacerbated his client's position. Mr Shore has painstakingly taken us through the summing-up endeavouring to demonstrate that it created a manifest unfairness to the appellant and denied it the opportunity of having its case heard by a properly directed jury. The summing-up, of course, has to be considered as a whole. The critical issue in the trial was the width of the gap. The evidence on the gap was summarised to the jury by his Honour and the defendant's case was well and truly put. I can find no reason to criticise his Honour's attempt to assist the jury by reference to URJ AMWAY OF AUSTRALIA PTY LTD v VERNALL (Stein JA) 3 the photographs in evidence or the arithmetic or 'mathematics' of the gap. He did so in a proper manner, making it perfectly clear that it was the jury's task, and its alone, to determine the facts. Although counsel for the appellant relied on the cumulative effect of his Honour's summing-up as justifying the intervention of the court, he responded to a request from the presiding judge to be referred to the worst examples of his Honour's excesses. The response was the so-called twisted plank example. In the context of explaining an employer's duty of care. Allen J said: .. You know you could put a plank across a great chasm and even put a twist in it, if you like, and have your employee go along this twisted plank without a guard rail. True it is that any employee watching where he is going all the time would never fall off. Would you regard that as a safe system of work, or safe premises?; or wouldn't you say "As sure as God make little green apples one day someone is going to go off that edge while thinking about something else - concentrating on the job, getting from one place to another to get on with the days output to meet the days deadlines. That is something which you might think is real. And the law requires the employer to look at the real world. [AB 547 M - Ww) This was one of matters with respect to which his Honour gave further directions to the jury. In the redirection he said this: .. When giving you directions of law, judges often give examples simply because there is the saying that an illustration is often the best way of making something clear. Now, one of the examples I gave related to the fact that employers must take into account that their workers are human beings and, like all human beings, may be concentrating on the job, or thinking of something else, and not having their concentration specifically directed to some dangerous state with which they are very familiar (having gone over it again, and again, and again, and again, and again). The illustration which I gave of something, you might think (though it is a matter for you) would be pretty sure to happen was of the plank over a chasm with a twist in the plank: and no matter how well the employee knew the plank had no guide rails, and knew the bend was there, sooner or later, thinking about something else, not concentrating on his job (whatever he was doing), he would fall over. Now, that in a sense might be an evocative illustration of a terrible danger. It implied nothing at all about this case. It was simply illustrating a legal point. This case bears no resemblance at all to that illustration. Indeed I deliberately chose an illustration which bears no resemblance to this case. But perhaps I have erred by being unintentionally evocative. I have no emotion about this case whatever: and I am not trying to put anything across. [AB 687 U - 688 R] For my part, I do not see that there was, in reality, any unfairness in his Honour's admittedly evocative example. In any event, his redirection made the position very clear to the jury, even accepting the description of the example attributed to his Honour by counsel for the appellant. The judge's comments, when read in the context of the summing-up on liability, were within the proper bounds of a legitimate summing-up and do not sound in bias or render unfairness to the appellant. Of great significance at the trial was the credit of the plaintiff. Not to put too fine a point on it, it was the appellant's case that she was a fraud and should not be believed. It is plain that if her credit was accepted by the jury, the respondent would succeed on negligence. His Honour dealt with the issue of the plaintiff's 4 UNREPORTED JUDGMENTS credit on the second day of the summing-up. No complaint was made at the trial that this aspect of his summing-up was unfair, nor in my opinion could there be. The comments of the trial judge on the credit issue were accurate and proper and made so to as to ensure fairness to the appellant. No real complaint is made about them by the appellant on the appeal. Further, a fair reading of the summing-up leads to the conclusion that the issue which determined the case on liability was that relating to the extent of the gap. This issue, in my view, was fully and fairly put to the jury. I can see no relevant miscarriage of justice. In applying Bugg v Day [1949] 79 CLR 442, I am unable to conclude that the charge to the jury did not fairly and adequately put the case of the appellant, nor would it be manifestly unjust to leave the verdict standing. I reject the submission that the summing-up was an exercise in 'sustained advocacy', nor do I accept that it may be concluded that a fair trial had not been had. I have carefully considered each complaint made about the summing-up and am unable to accept that, taken individually or cumulatively, they lead to a conclusion that the trial was unfair to the appellant. In so finding, I am mindful of what Windeyer J said in Jones v Dunkel [1958-1959] 101 CLR 298 at 314: It has often been said that to examine a summing-up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. In my opinion, nothing said by Allen J would have tended to distract the jury from the real issues, which were the extent of the gap and the credit of the plaintiff I do not see that anything his Honour said to the jury would have confused them or led them to misunderstand their role and responsibility to find the facts and decide the case upon the real issues. On my reading of the summing-up, it cannot be concluded that Allen J did not fairly and adequately put the appellant's case. That the appellant's case could have been put with greater strength is not to the point. That is not the test. Even assuming for the moment, and I do not so find, that his Honour did express strong views as to the facts, the jury were reminded repeatedly that they (and they alone) were the judges of fact. The jury were not deprived of a proper exercise of their functions. In Murray v Wilson [1962] NSWR 1155 at 1160 Maguire J said: A judge at nisi prius is not, in my opinion, obliged actively to support a case which has been conducted in such a way as to lead, if it were accepted, to what the judge regards as an unjust result; nor do I think he need be strictly neutral in such a situation. He is entitled to express views as to the facts and express them strongly provided that he does not adopt a course calculated to deprive the jury of a real exercise of their functions. As was said by Scrutton LJ in Hobbs v Tinling Nottingham Journal, [1929] 2 KB 1, at p33: "Though the jury and not the judge are the judges of facts, the judge is entitled to make such comments on fact as he thinks right, either during the trial, or in the summing-up, provided he makes clear to the jury that they are the judges of fact, and not the judge, and that his observations are only submitted for their consideration and guidance and may be disregarded if the jury do not agree with them". Sugerman J stated in Hoger v Ellas [1963] NSWR 1033 at 1045: It follows that exceptional circumstances leading to a clear conviction of the likelihood of a miscarriage of justice must be shown if a ground such as is taken in this appeal is to be capable of being regarded as anything other than an attack upon the well-established rule itself which sanctions judicial comment, and even URJ AMWAY OF AUSTRALIA PTY LTD v VERNALL (Stein JA) 5 strong judicial comment, upon the facts. That a judge has acted upon that rule is not a miscarriage in the conduct of the trial. That the jury's verdict is for one party rather than the other on a contested issued is not, as I have earlier indicated, an indication' of a miscarriage of justice in the result, nor does it afford guidance as to the processes by which the jury have arrived at the result. Iam unable to accept the contention of the appellant that the summing-up led to the appellant being denied a fair trial. THE STATUTORY COUNTS This conclusion on negligence means that the issue of whether the statutory counts should have been left to the jury is academic. I understand Mr Shore to concede this. That being so, it seems to me to be pointless to embark upon an analysis of the statutory counts left to the jury under s34, s38(a) and s40(1) of the Factories, Shops and Industries Act or the argument based upon the timing of his Honour's withdrawal from the jury of the count based upon s22(4) of the Act. Suffice to say that I am wholly unable to understand how it can be said that the timing of the withdrawal of the s29 count somehow gave 'added strength' to the counts left to the jury. His Honour was faced with a dilemma once he had reconsidered the count overnight and changed his view. However he dealt with it in the only possible way by withdrawing it from the jury. DAMAGES As to the attack on the summing-up on damages, it is fair to say that the appellant did not place great stress on this ground at the hearing. The contention appears to be that the trial judge did not adequately put the appellant's case on damages because of his comments about Dr Aroney, in particular his reference to the doctor as a 'skilled professional witness'. I do not see how this, and other references relied on by the appellant, render the trial unfair. The principal issue for the jury on damages was the issue of the credibility of the respondent. As I have pointed out, her credit was placed very much in issue by the appellant. The appellant's case, that Mrs Vernall was not a truthful witness and was deliberately exaggerating her complaints of pain and feigning disability, was well and truly put to the jury. The jury's verdict indicated that they regarded her credibility as remaining intact. That being so, they were entitled to bring in the verdict that they did. No relevant miscarriage of justice has been demonstrated. I would dismiss the appeal with costs. Appeal dismissed with costs. Counsel for the appellant: H G Shore Solicitors for the appellant: William K Chambers Counsel for the respondent: J D Hislop QC and P Doherty Solicitors for the respondent: Somerville & Co