New South Wales Court of Appeal CITATION : Jreije v Zahabi [1999] NSWCA 436 FILE NUMBER(S) : CA 41024/98 HEARING DATE(S) : 18/11/99 JUDGMENT DATE : 18 November 1999 PARTIES : Jonny Jreije Michael Zahabi t/as Kensington Auto Radiator Repairs JUDGMENT OF : Handley JA at 17; Beazley JA at 2; Fitzgerald JA at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 2990/98 LOWER COURT JUDICIAL OFFICER : Hughes ADCJ COUNSEL : Appellant: C A Evatt/M K Rollinson Respondent: A C A Bridge SC/F J Doak SOLICITORS : Appellant: Teakle Ormsby George Respondent: P W Turk & Associates CATCHWORDS : Negligence; Damages; Injury caused at work; Adequate reasons; Procedural fairness; Expert evidence; Verdict against weight of evidence DECISION : Appeal allowed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41024/98 HANDLEY JA BEAZLEY JA FITZGERALD JA Thursday, 18 October 1999 JOHNNY JREIJE v MICHAEL ZAHABI t/as KENSINGTON AUTO RADIATOR REPAIRS JUDGMENT 1 HANDLEY JA: I will ask Justice Beazley to give the first judgment. 2 BEAZLEY JA: This is an appeal from a decision of Hughes DCJ in which his Honour gave a verdict for the defendant on the plaintiff's claim for damages for an injury caused at work. 3 There are six grounds of appeal, although I consider that they are properly gathered under three main heads: (i) a failure to give adequate reasons; (ii) a failure to afford procedural fairness to the plaintiff; and (iii) the verdict being against the weight of the evidence. 4 It is convenient to deal with the second of these heads first. There are two bases alleged which, if made out, would involve a breach of obligation to afford procedural fairness. The first is contained in ground four of the Notice of Appeal, and involved a submission that the trial judge had stopped the appellant's counsel from addressing on liability in circumstances that made counsel believe that liability was not in issue. Somewhat to counsel's surprise, his Honour then found a verdict for the respondent. 5 In my opinion this ground is not made out. The transcript of the exchange between the trial judge and counsel make it clear that what was in fact under discussion was whether this was a case which would exceed the statutory threshold so as to entitle the appellant to damages. That is quite a different consideration to the question of whether liability, either at common law or under statute, was made out. Notwithstanding counsel's misunderstanding of his Honour's indication, I would not uphold the appeal on this basis. 6 The second error which falls under this heading of a failure to afford procedural fairness is contained in ground six, that his Honour failed to properly consider the Factories, Shops and Industries Act 1962 (NSW). I need only deal with this ground briefly. 7 The appellant in his statement of claim pleaded three statutory counts. It became apparent during the course of this hearing that one of the sections on which those counts were based had been repealed shortly prior to the accident; another was clearly not applicable; and the third (s 40(1)) was the only possible statutory count available. There must be real argument in this case as to whether that ground was available, in any event it will not be necessary for us to decide as the case will be determined on different bases. However, the statutory counts were pleaded, they were fully argued during the course of the trial and they were a relevant basis upon which the claim was brought, they should have been considered by the trial judge. The failure to do so, in my opinion, would in the normal course amount to a breach of procedural fairness. 8 Having regard to the matters to which I have referred, and in particular to the repeal of the section which would have been most applicable, this may not have been a ground which would have enabled the appellant to succeed, but I do not comment further on that because of what will be my final conclusion in the matter. 9 That then leads to the first challenge, the failure to give adequate reasons. The trial judge gave his reasons in a brief two page judgment. That in itself is not a criticism or a ground of appeal. But the structure of his Honour's judgment is instructive and I think, when considered, throws up where his Honour seems to have erred in the matter. 10 He deals firstly with a prior injury of the appellant, and then without more discussion, he states that he prefers the opinions of a Dr Glaly, especially those given in a report of 23 October 1997, then that of Dr Cummie, of 13 November 1996. There was no report of Dr Glaly of 23 October 1996. The Court should not be asked to speculate what report his Honour was referring to, but in any event, this part of his Honour's judgment is, in my opinion, totally opaque. One has no idea what the opinions were or why his Honour preferred those opinions. 11 His Honour then referred to the accident and found that the appellant slipped and fell on a step leading from the workshop to the yard outside. His Honour next refers to the allegation that the steps were wet and slippery. He follows that reference by a reference to the two reasons which were advanced as to why the step was alleged to be slippery, namely either the combination of old oil and water, or due to the composition of the step surface. 12 His Honour then dealt with the expert evidence which dealt with why the step would have been slippery when it was wet. However, his Honour never made a finding as to whether the steps were wet or slippery. Most significantly, in this case, he did not refer to the evidence of the appellant as to the state of the step at the time that he fell, nor did he refer to the evidence of the respondent as to the state of the steps generally, and most particularly, as to what condition the steps came to at any time when they were wet. 13 This evidence was fundamental to the question of the respondent's negligence. It should have been considered by the trial judge, not only for its own value, but certainly so as to provide foundation for his Honour's consideration of the expert evidence. In my opinion, his Honour failed to give adequate reasons by failing to consider these matters which were at the heart of the case and fundamental to his determination and the matter should be remitted to the District Court for re-hearing. 14 Upon hearing senior counsel for the defendant, it became clear, in my view, that the case ought not be remitted wholly for re-determination, but should only be remitted on the question of damages. That is because the evidence in this case was overwhelming that the respondent was negligent. 15 The appellant gave evidence that the step was wet when he slipped. The respondent then gave evidence, which was nowhere contradicted, that when the step was wet it was dangerous, and that when it was wet it was slippery. He added the qualification that it depended upon what shoes were being worn at the time. 16 In my opinion, once a defendant/respondent admits that a work place is dangerous in the circumstances in which an injury was suffered, the defendant/respondent must be liable in negligence. Accordingly, I would propose in broad terms that the appeal be allowed, that the verdict of the trial judge be set aside, that a verdict for the appellant be entered on liability and that the matter be remitted to the District Court for a re-hearing on damages. 17 HANDLEY JA: I agree. 18 FITZGERALD JA: I agree. 19 HANDLEY JA: The orders of the Court are as follows: (i) Appeal allowed with costs. (ii) Set aside the judgment of the District Court. (iii) In lieu thereof, order that interlocutory judgment be entered for the plaintiff/appellant for damages to be assessed without prejudice to any finding that final judgment should be entered for the defendant/respondent because the thresholds under the Workers Compensation Act 1987 (NSW) were not met. (iv) Order that the proceedings be remitted to the District Court for the assessment of the plaintiff/appellant's damages and entry of final judgment. (v) Costs of the first trial are to abide the order of the judge presiding at the second trial. (vi) The respondent is to have, if qualified, a certificate under the Suitor's Fund Act 1951 (NSW). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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