MOUNDALEK v WOOLWORTHS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and POWELL JJA 4 September 1997, 22 October 1997 [1997] NSWCA 213 NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — APPORTIONMENT BY JURY — Appellant injured by employee of respondent in shopping centre — jury found respondent negligent but apportioned 80% contributory negligence against appellant. On appeal: The appellants submitted: 1. there was insufficient evidence to justify the trial judge's decision to allow the issue of contributory negligence to be left to the jury; or, alternatively, 2. the jury's apportionment of 80% contributory negligence against the appellant was unreasonable. Held: (Powell JA dissenting) 1. There was insufficient evidence before the jury upon which they could be affirmatively satisfied that the appellant had not taken reasonable care for her own safety. The trial judge should therefore have acceded to the appellant's request that the issue of contributory negligence not be left to the jury. 2. It was unnecessary to decide the second ground of appeal. Cases: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Nicholson v Nicholson (1994) 35 NSWLR 308 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 Mason P I agree with Priestley JA. Priestley JA Background. On 19 January 1993 Mrs Moundelak was in the Campsie Shopping Centre using a moving walkway called a travelator. What happened on the travelator led her to bring proceedings claiming damages for negligence from Woolworths Ltd (Woolworths). The proceedings were heard in 1996 before his Honour Judge Twigg QC of the District Court and a jury of four. The jury found that Mrs Moundelak had established negligence by an employee of Woolworths for whom Woolworths was vicariously liable. The jury assessed Mrs Moundelak's damages as $70,000. The jury also found that Woolworths had established that Mrs Moundelak was negligent, that that negligence contributed to her injuries, and that the percentage proportion out of 100 in which Mrs Moundelak had been guilty of contributory negligence was 80%. His Honour Judge Twigg gave judgment for Mrs Moundelak in the sum of $14,000. Mrs Moundelak appealed against both the finding of contributory negligence against her and, if that appeal failed, against the percentage proportion in which she had been so found guilty. An important aspect of the case in this court is that Woolworths did not appeal against the finding of negligence against it. 2 UNREPORTED JUDGMENTS When the appeal came on for hearing, counsel for the parties agreed that an accurate summary of what the jury must be taken to have found by way of facts in order to arrive at its negligence verdict was that while Mrs Moundelak was on the (upwards) travelator she was injured when Mr Russo, the Woolworths' employee, who was managing a number of wheeled shopping trolleys closely ahead of Mrs Moundelak, was caused to move backwards suddenly when the trolleys became stuck on the baseplate of the exit end of the walkway so that he came in contact with the plaintiff and caused her to fall over. At the trial Woolworths relied on three particulars of contributory negligence: that Mrs Moundelak had her head turned to the side at the tune of the accident; that she was standing too close to Mr Russo; and that she was not holding the handrail. Mr Evatt, who appeared for Mrs Moundelak both at the trial and in the appeal submitted to his Honour Judge Twigg that there was no evidence justifying the issue of contributory negligence being left to the jury. The judge disagreed and left the question to the jury with the result already mentioned. The appellant's two appeal points. In the appeal Mr Evatt first submitted that the trial judge had been wrong in allowing the issue to go to the jury and in the event that submission was unsuccessful made the further submission that the reduction of the plaintiff's damages which the jury thought just and equitable having regard to the plaintiffs share of the responsibility for the damage (to adopt relevant words from s10(1) of the Law Reform (Miscellaneous Provisions) Act 1965) was so unreasonably great that this court should set it aside. Contributory negligence. A plaintiff is guilty of contributory negligence if he or she ought to have foreseen that if he or she failed to take such precautions in the circumstances of the case as reasonable and prudent persons would have taken for their own safety, he or she would run risk of injury: see Mason J in Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570; Mahoney JA in Nicholson v Nicholson (1994) 35 NSWLR 308 at 333; Torts, Cases and Commentary 4th ed, Luntz and Hambly at 534 and The Law of Tort in Australia 2nd ed, Trindade and Cane, at 534. Submission on the first appeal point. To deal with the first submission it is necessary to see what facts the jury could properly rely on in regard to Woolworths' three heads of contributory negligence, or more precisely, what evidence it was open for them to accept and what not, bearing in mind the factual findings necessarily involved in their negligence verdict against Woolworths. I will collect the evidence relevant to each head of contributory negligence separately, but it is impossible to avoid some overlapping. Plaintiff too close to Mr Russo. Rather than attempt to describe the travelator I will here reproduce a good colour photograph of it, taken a week or two after 19 January 1993, which was an exhibit at the trial. There has never been any suggestion that the photograph did not accurately show the travelator both at the date of the taking of the photograph and at 19 January 1993. In her evidence in chief Mrs Moundelak said she was going up the walkway, there was a young man in front of her pushing trolleys. When asked how many he was pushing she said, "About nine, ten, eleven, eight, twelve, I don 't know". URJ MOUNDALEK v WOOLWORTHS LTD (Priestley JA) 3 She said they were all pushing inside one another. The following piece of evidence taking then occurred, which in view of the importance later attached to it, was rather unsatisfactory: "EVATT: Q. About how far were you behind the man who was pushing? A. That much Q. No, you'll have to - HIS HONOUR: She put her two hands together palms down, she 's now got her two hands apart about a metre or a little less. A. Maybe, maybe this, maybe more. EVATT: I think we "d better make it a metre, your Honour. JAMIESON: Your Honour, I would suggest that that would have to be less than 500, less than half a metre. HIS HONOUR: Alright, half a metre for the record. It's agreed it's half a metre. EVATT: Well no, I don 't think it is agreed. Q. Just show us. Look, don't go like this, like a concertina. Just give us an idea. JAMIESON: Indicating hands at shoulder length, your Honour. I think it's about half a metre. EVATT: Well your Honour, I think it's about a metre, but anyhow can we make it three feet to compromise? HIS HONOUR: No Mr Evatt, because that 's a metre. Between half a metre and a metre." In cross examination the following further details were obtained. Once Mrs Moundelak had got on to the travelator she stopped walking. The man in charge of the trolleys was also standing still. The following further rather unsatisfactory exchange then took place: "Q. And you stopped about as you've said in the witness box about shoulder width from behind him, is that the case? A. Yes. EVATT: Your Honour, I think I should clear up the distance because the interpreter had his arms - I mean - HIS HONOUR: That 's alright. Yes, you go on Mr Jamieson." The next witness relevant to this matter was Miss Page, called in Woolworths' case. She had been standing at the top of the travelators and began to go down on the down travelator. She did not become aware of the plaintiff until she heard a scream and looked around. On the way down she had noticed a "trolley guy" going up. At that stage he "was standing still and there were a few trolleys in front of him". The next witness, Mr Ellis, was also called in Woolworths' case. He had been in Miss Page's company on the down travelator. In examination in chief he said he saw some people coming upwards the other way. Then: "Q. What did you observe? A. A lady coming up close behind the trolley boy. The trolley boy was starting to get to the top of the escalator and she started to get pretty close to him as he was starting to get of off. Q. What do you mean she was coming up, was she walking up? A. She walked up reasonably close behind the gentleman with all the trolleys that I noticed and so he was starting to get to the top of the escalator himself and push them of ff and as she got closer she started to yell and to my knowledge go down to her hands and knees. Q. Were you watching her as she was approaching him? 4 UNREPORTED JUDGMENTS A. Up to that point, yes. Q. Did you watch her when she went down onto her knees? A. Onto her knees and then I got to the bottom of the escalator. JAMIESON: Q. Can we go back up to where you coming down and watching the lady, did you hear anything from her, anything said or - - A. Just noises. Q. Before the noises did you see anything happen as between her and the trolley boy? A. Not to my knowledge no. Q. Did they come into any contact? A. Not that I seen. She was close, but I didn't think they touched each other. Q. What happened next after you heard these noises? What did you see her do? A. I noticed her start to lower herself onto her knees." The most important part of this witness's evidence was that in which he asserted there had not been any contact between Mr Russo and Mrs Moundelak. At this stage Woolworths' case was that the plaintiff was faking an accident. Had the jury accepted this witness's evidence it would have negated Mrs Moundelak's case. The verdict for the plaintiff can only have been arrived at on the basis that this witness's evidence, at least on the contact issue, was not accepted and that Woolworths' "faking" case failed. The witness himself left the way open for its non acceptance by an answer at the end of cross-examination: "Q. What I 'm putting to you is that irrespective of what you saw. coming up the escalators that is Mr Russo with the trolleys you weren't looking at them at the critical moment when he could have knocked into her? A. To my knowledge they did not touch each other. Q. Yes, that is to your knowledge, but I am asking you whether you were looking at that critical point in time when he could have knocked into her? A. I can't say if I was or wasn't because I did not know if he actually hit her." In re-examination this occurred: "JAMIESON: Q. In relation to that not looking at the crucial time when you did look where was Mrs Moundelak from the back of Mr Russo? OBJECTION. QUESTION ALLOWED. A. Probably about two to three feet. Q. Was she standing and holding onto the rail at that stage? A. At that stage, yes. Q. After that did she then go down on her knees? A. Bit by bit, yes." The next witness was Mr Russo. He said that he had taken about eight trolleys on to the travelator. He described how when he got to the top "the trolleys would not just roll off simply they got jammed" and that he then had to lift them up and give them a bit of a push up in order to unjam them and have them roll off. His evidence continued: "Q. As you were lifting them up did you notice anyone else around you? A. Yes, I did Q. Who did you notice? A. A lot of people behind me. Q. Did you look at them or anything of that nature? A. When the trolleys got stuck and I had a problem yes then I did turn around, just to see who was behind me because on that particular day there were a lot of shoppers. URJ MOUNDALEK v WOOLWORTHS LTD (Priestley JA) 5 Q. What did you do then? A. I just quickly roped it and just gave it a reef up and they rolled off. Q. What about someone behind you did you come into contact with your body OBJECTION. LEADING. QUESTION ALLOWED. HIS HONOUR: Q. Yes, what is the answer to that question? Did you notice someone behind you? A. Yes. Q. Tell us about it please? A. There was a lot of shoppers behind me and I noticed a lady walking up close behind me and I was a little bit concerned because she was getting pretty close sort of thing and because I had a bit of a problem with the trolleys I was a bit concerned about the situation. Q. What did you do? A. I just held onto the trolleys and just waited until I got to the top. Q. Tell us about the lady what did she do? A. She was approaching up behind me very close." Throughout his examination in chief Mr Russo asserted he did not remember any body contact with the plaintiff, but he said, "I did step back". On the question of closeness, the following appeared in cross-examination: - "Q. And you stepped back well the lady is 3 feet behind you going up and you are stopped and you step back you would expect the two of you to bump would you not? A. I didn't feel any body contact." Also relevant on the closeness question was the following part of the cross-examination of Mr Russo: "Q.... What do you think was happening to the people who were coming up the walkways behind you what do you think they are going to do jump over the side or something? A. No they would just be approaching They would just be rolling with the travelator. Q. What will they do? A. They will be coming up with the travelator. Q. The travelator is jammed at the top and you are stepping backwards what about the people behind you what are they going to do? A. They've got nowhere really to go because the travelator is moving they'll be moving as well." Mr Russo was asked in re-examination how far he was back down the travelator when the front trolley came in contact with the top end of the travelator. He said "About 24 foot maybe". In the balance of the re-examination counsel for Woolworths sought to find out from the witness whether the front trolley had become jammed or whether it was only the back or intermediate trolleys. The answers given were a little confusing on this point, but his last answer seems to me to have cleared the matter up, read in light of what preceded: "A. The front wheels were locked and the travelator was moving forward and I was stationary. So I hadn't moved at that stage." Looking to one side. The jury were undoubtedly entitled to act on the basis that Mrs Moundelak was looking to one side and not looking at Mr Russo in front of her until the time when he came into contact with her. It seems to me to be relevant to this matter 6 UNREPORTED JUDGMENTS to have in mind how far from the upper end of the travelator the plaintiff was at the time when Mr Russo came into contact with her. The evidence which the jury had before them most directly relating to this question concerned the number of trolleys Mr Russo was pushing. I have already mentioned the plaintiff's evidence that she thought the number was from eight to twelve. Mr Russo said "About eight". Miss Page said "a few". Mr Ellis agreed with Mr Evatt's suggestion that he had about a dozen trolleys in front of him. A rough idea of distance occupied by trolleys and a man pushing them in front of him can be gained from the photograph reproduced earlier in these reasons. Mr Ellis also gave some evidence on the distance of the plaintiff from the top end of the travelator when the accident happened: "Q. When you heard the screams wasn't the woman nearly at the top? She still was a good 8 metres from the top. When you first heard the screams were you halfway down? I'd say approximately yes, give or take. I suggest that when you first heard the screams she was nearly at the top? She was about 8 metres from the top. No, nearly at the top? No about - I know what 8 metres is roughly. 8 metres we know is from here to that corner? . Probably from to I 'd say the back of yourself there, roughly. EVATT: I don't think your Honour can do that, what is it? HIS HONOUR: About 4 metres." Not holding handrail. The plaintiff agreed she was not holding the handrail at the tune of the accident. Some cross-examination suggested that she was in fact holding the handrail but the jury were undoubtedly entitled to decide the case on the footing that she was not. Photographs in evidence of both the up and down travelators show some people using the handrail and some not. One photograph shows a man on the down travelator with a small child on his shoulders and his hands around the child's legs. Another shows a man on the down travelator reading a newspaper which he is holding with both hands. Neither of these two rather extreme examples shows any likelihood of risk from what the person is doing. Evidence was given by the plaintiffs son that on a day during the course of the trial he had gone to the Campsie Shopping Centre and both watched and videotaped people using the same travelator. While doing this approximately 500 people had used it. Of these he said that 60% did not use the handrail. It was agreed in the course of the appeal by counsel for Woolworths that this witness's evidence had not been successfully challenged or qualified and that no evidence to the contrary had been tendered by Woolworths. There were no signs near the travelator advising users to hold the handrails. >POPOPO>O> Failure of Woolworths' defence to negligence. Before considering the heads of contributory negligence left to the jury, I will state in a little more detail why Woolworths' defence of the negligence case against it failed. Although it was not made clear in Woolworths' amended grounds of defence, the defence that emerged from the evidence of Miss Page, Mr Ellis and Mr Russo in examination in chief was that the plaintiff had not fallen over because of URJ MOUNDALEK v WOOLWORTHS LTD (Priestley JA) 7 contact with Mr Russo, but without any contact at all and in a way showing she was faking the fall. Why the defendant was tempted to run this case is puzzling, because two contemporaneous documents, which became Exhibits A (an insurance claim/incidence report, which in substance repeated Miss Page's then account of the matter) and B (an internal incident report form) made it clear that it was only after contact that the plaintiff had fallen over: Exhibit A said the trolleys had fallen back "knocking her over" and Exhibit B said that the plaintiff "came into contact with his [Mr Russo's] back and fell to the floor'. Exhibit A also recorded Miss Page's scepticism about the incident but on the day it happened, her doubt was not about the genuineness of the fall but whether the fall caused by the trolleys knocking Mrs Moundelak over, had done her any harm; she thought it had not. Cross-examined about Exhibit B, Mr Russo agreed that it set out what had happened. When counsel for Woolworths tried to repair the damage in re-examination, the following was said: "Q. I just want you to think back now as you are giving your evidence and your attention directed to exhibit B, did you fell the lady come in contact with your back? A. I didn't feel her come in contact with my back, but when I lifted my arms up I may have hit her with the back of my elbows. Q. Do you remember doing that? A. I remember touching I don't remember knocking because when my arms came up, but not like in a way I remember hitting someone hard like to knock her down." In light of what was contained in Exhibits A and B and Mr Russo's evidence in its final form, the jury could not find that the plaintiff had faked her fall as suggested by Miss Page and Mr Ellis. The failure of the faking defence, taken with other uncontroversial aspects of the evidence, made it virtually inevitable that the jury would find, as they did, that the plaintiff had established her case of negligence. It seems reasonably plain however that the faking case had to some extent left its mark on the jury, because on the basis of the findings necessarily involved in the jury's negligence verdict it seems to me impossible to explain the jury's apportionment of culpability except on some impermissible compromise basis. The defendant has not sought a new trial on this basis, presumably because the view is taken (I would think rightly) that on a new trial Mrs Moundelak would be highly likely to succeed again on the negligence issue. That leaves this court in the position that, in considering Mrs Moundelak's two grounds of appeal against the jury's decision concerning contributory negligence, it must take into account as established the factual basis that must have been involved in the jury's verdict that Woolworths was guilty of negligence. Was there a case to go to the jury on contributory negligence? The legal question about contributory negligence was whether there was evidence before the jury upon which they were entitled to be affirmatively satisfied that Mrs Moundelak had not taken reasonable care for her own safety on the travelator. I do not think that any of the three matters relied on by Woolworths could justify a positive conclusion against Mrs Moundelak on this question. On the looking to one side ground, on any view of the evidence, at the tune of the accident the travelator had some distance to travel before Mrs Moundelak would have to step off it. It would be imprudent for her not to be watching what she was doing in the act of stepping off. The fact that some distance before the 8 UNREPORTED JUDGMENTS time was coming when she would need to be looking ahead, she was looking to one side, can not, in my opinion, in the circumstances of the case, provide any evidence that she would not subsequently take appropriate care in stepping off the travelator. There was no evidence that the travelator was unstable or uneven in its upward progress. The various photographs in evidence all show people using the travelator in a way indicating (as accords with common experience) that it was easy to use and there was no reason to expect any problems in its upward progress carrying people on its flat surface. I speak of common experience because counsel for the appellant consistently submitted to the court that the criterion for judging the question whether Mrs Moundelak used reasonable care for her own safety was common sense. On this approach it seems legitimate to me to note further that common experience indicates that in using travelators of the kind shown in the tendered photographs, the user needs to pay particular attention to safety in getting on and off the travelator, but that in a passenger's progress between getting on and off, the passenger can stand on the flat surface of the travelator in much the same way as on ordinary flat ground and need take no more and no less care for safety than a person standing stationary on flat ground. In the present case, even if it might be thought that Mrs Moundelak, contrary to my own opinion on all the evidence, was getting close enough to the stepping off point from the travelator to make it sensible for her to be looking ahead, her not doing so was in no way connected with the happening of the accident. In short in my opinion, on no way of looking at the evidence did the appellant's looking to one side at the time of the accident, contribute to the accident. There was no reason for her to foresee an accident of the kind that occurred, or, more concretely, that the trolleys might suddenly stop and Mr Russo step or be pushed back towards her. That event happened in a flash and I do not think that her fall was contributed to by her not having looked ahead at that moment. As to not holding the handrail I cannot see any basis in the evidence for thinking there was any disregard by the appellant of her safety in her not doing so. It may be, as counsel for Woolworths submitted, that the fact (as it was on the evidence) that more than half the people observed over the period spoken of by the appellant's son did not use the handrail did not necessarily mean that all those people were acting reasonably so far as their safety on the travelator was concerned. But when that fact is taken together with the absence of any evidence either from Woolworths or elicited in the appellant's case that not to hold the rail was or could be unsafe, bearing in mind the absence of any signs advising the holding of the rail and the burden on Woolworths so far as establishing contributory negligence was concerned, I cannot see that the fact that Mrs Moundelak was not holding the handrail is any evidence of contributory negligence on her part. The head of negligence based on Mrs Moundelak's being "too close" to Mr Russo is the one which seems to me to have the most potential for Woolworths. However, on reflection, I can see no basis for a positive finding against Mrs Moundelak on this ground either. She was standing on a flat, moving surface. She was not touching the person in front of her. There is no evidence that before Mr Russo had his difficulty with the trolleys at the end of the travelator she was standing close enough to him for him to notice it or be affected by it in any way. The appellant and Mr Russo were both standing still on the steadily moving platform, as others were behind them. She had no reason to think there was any URJ MOUNDALEK v WOOLWORTHS LTD (Powell JA) 9 danger or risk to her own safety in standing the distance from him which she was. How then could her standing where she was provide any evidence that she was not giving reasonable attention to her own safety? I do not think it can. For these reasons I think the trial judge should have acceded to Mr Evatt's request that contributory negligence not be left to the jury. This seems to me to be a verdict point and not a new trial point. My opinion therefore is that the appeal should be upheld and the jury's verdict for Woolworths on the contributory negligence issues set aside. In its place there should be a verdict for the plaintiff on the contributory negligence issue. This conclusion will also involve setting aside the present judgment and entering in its place judgment for Mrs Moundelak in the sum of $70,000, to take effect from 3 October 1996. The respondent Woolworths should in my opinion bear the plaintiff's costs of the proceedings in the District Court and the appellant's costs of her appeal to this court. The appellant's second ground of appeal. In view of my conclusion on the first ground of appeal it is unnecessary to deal with the second. Had it been necessary to deal with it, I would have been in favour of upholding it. The parties asked the court, in this event, not to order a new trial but to decide the question. Had it been necessary I would have apportioned the culpability between the parties so that the apportionment reflected my opinion that Woolworths must be taken, on the jury's negligence finding, and the facts necessarily involved in arriving at that, to have been overwhelmingly the cause of the accident. Conclusion. I would uphold the appellant's first ground of appeal and would propose that the court make the orders set out above. Powell JA I have read in draft the Judgment which has been prepared by Priestley JA, but I am unable to share his Honour's view that there was no evidence before the jury upon which they were entitled to be affirmatively satisfied that the Appellant had failed to take reasonable care for her safety on the travelator. There was evidence, which it was open to the jury to accept, that when the Appellant felt she was about four metres from the end of the travelator (AB 43). Further, the Appellant's own evidence was that, although she was standing only a short distance behind Mr Russo, at the time of the impact between Mr Russo and herself she "(was not) looking at him"(AB 12), that, from a point of about half way up the length of the travelator, she had been looking to the side and back in an endeavour to locate her sister (AB 20) and that, at the point of impact "(she) was looking to the side, (she) wasn't aware of (what was) going on in front of (her, she) was looking back when he struck (her)" (AB 27). With respect to Priestley JA, I am unable to share what appears to be his view that the impact between Mr Russo and the Appellant did not occur at a time when the Appellant ought, in her own interests, to have appreciated that she was approaching the end of the travelator and to have taken appropriate care to be ready to step from it when it reached the limit of its travel. It does not, however, follow that the jury's apportionment of responsibility for the Appellant's injuries, which apportionment was such as to place almost the entire responsibility upon the Appellant herself should stand. Notwithstanding the restraints to which an appellate court is subject when asked to interfere with 10 UNREPORTED JUDGMENTS such an apportionment (see, for example, Podrebersek v Australian Iron and Steel Ltd!) it seems to me that, in the circumstances of this case, it was unreasonable for the jury so to apportion responsibility - indeed, given both the finding of negligence against the Respondent and the finding as to the apportionment of responsibility, it is difficult to avoid the conclusion that the result represents something of a compromise of the varying views of the members of the jury. Had it not been for the facts, first, that the Respondent has not raised a cross-appeal against the jury's finding on liability, and, second, that, having regard to the comparatively small sum involved, both parties were prepared, in the event of the appeal on the question of apportionment being upheld, to have the Court substitute its own view as to apportionment, I would have thought that the better course to adopt was to remit the proceedings to the District Court for a new trial on all issues. In the circumstances, however, and having, as best as I might, assessed for myself the respective degrees of culpability of the Appellant and the Respondent I would apportion responsibility between them 20:80. The Orders which I would favour are: 1. APPEAL allowed. 2. VERDICT AND JUDGMENT entered in the District Court set aside. 3 IN LIEU THEREOF enter Judgment for the Appellant in the sum of $56,000.00 such Judgment to take effect from 3 October 1996. 4. ORDER that the Respondent pay the Appellant's costs of the trial and of the appeal. 1. Appeal allowed 2. Jury's verdict for Woolworths on the contributory negligence issues set aside. 3. In place of judgment entered by Twigg DCJ, judgment for appellant in the sum of $70,000 to take effect from 3 October 1996. 4. Respondent to bear the plaintiffs costs of the proceedings in the District Court and the appellant's costs of her appeal to this court. Counsel for the appellant: C Evatt, M Rollinson Solicitors for the appellant: Ward Maxwell & Co Counsel for the respondent: C Hoeben SC Solicitors for the respondent: Dunhill Madden Butler 1. (1985) 59 ALJR 492; 59 ALR 529