New South Wales Court of Appeal CITATION : Franklins v Sandra Jamieson [2001] NSWCA 80 FILE NUMBER(S) : CA 40004/01 HEARING DATE(S) : 05/02/01 JUDGMENT DATE : 5 February 2001 Franklins Limited & Franklins Self-Serve Pty Limited PARTIES : v Sandra Jamieson JUDGMENT OF : Meagher JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER : COUNSEL : Appellant: Malcolm Respondent: Richardson SOLICITORS : Appellant: Deacons Lawyers Respondent: Russell McLelland Brown DECISION : Motion dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40004/01 MEAGHER JA 5 February 2001 FRANKLINS LTD & FRANKLINS SELF-SERVE PTY LIMITED v SANDRA JAMIESON JUDGMENT 1 HIS HONOUR: The plaintiff, Mrs Sandra Jamieson, in this matter sought to recover damages in negligence from the defendants, Franklins Limited, following a fall on their premises, namely shop number 96 Crown Street Wollongong on 13 June 1995. His Honour Judge Phelan gave her a verdict of $140,000 and stayed it as to $60,000 so that the defendants, Franklins Limited, came under an immediate obligation to pay the remaining $80,000. 2 This motion is a motion by Franklins, as applicant, against Miss Jamieson, as opponent, in effect quashing his Honour's order as to the payment of $80,000 and seeking an order for a stay of the whole of the verdict. It is a case in which there are many factors going in each direction. What happened to Mrs Jamieson was that when she entered Franklins' premises on the day in question she fell. That is not in contest. What caused her to fall was because there was a chip on the floor on which her shoe rested, and that is not in contest, but what is in contest about that particular episode is that according to the current applicants, his Honour overlooked evidence that the chip was warm, that therefore the opponents had not had time to clean the floor before the spillage occurred. 3 On the whole, having heard counsel for both sides, I am not convinced that there is any substance in this point. In particular, I have regard to the fact that the ladies who filed the contemporaneous report about the accident took no trouble to mention that the chips were warm, if in fact they were warm. I cannot say how his Honour's finding on this point can be disturbed, certainly not by me at this stage. 4 Another aspect of the matter which deserves attention is there is almost uncontradicted evidence as to the absence of signage which is traditionally regarded as an indication of negligence on the part of the occupier. 5 The next aspect which causes trouble, and on which the applicant placed a great deal of reliance, was the inherent improbability of the applicant recovering anything from the opponent if the appeal which has been lodged is successful. One can understand that in that the lady herself, who is now 46 and was 41 at the time of the accident, has had a number of unpleasant health problems, including cancer. She is now on a full-time carer's pension since the birth of her son and she lives in a Housing Commission building. Her son has a rare congenital abnormality affecting his vision, his heart, the openings to his nasal passages. He has retarded growth, underdeveloped genitalia and an ear abnormality. The father of this boy left his mother soon after the accident and was released from three years gaol in November 1999. She herself had been a heroin addict and had been on the methadone programme for three years. In these circumstances one can understand the submission that recovery of money from Mrs Jamieson would not be easy. However, there is no affirmative evidence that she would be minded to squander any moneys that were paid to her, and I am reluctant to take the step of inferring that she would in fact do so. 6 The final matter which deserves some attention is more serious, it is this: That his Honour, the trial Judge, took the liberty of contacting one of the witnesses without informing either the plaintiff or the defendant. That is not in dispute. Indeed, his Honour says as much in his Honour's judgment. His Honour had a number of Medical Certificates in front of him, including one or more from a Dr Haber in which Dr Haber indicated that the plaintiff was suffering from a Positive Lachman Test. His Honour did not know what this term meant so he said this: "I have taken the liberty of contacting Dr Haber to clarify what constitutes this test, after having studied a number of medical dictionaries which made no reference to it. He has forwarded a fax in these terms, `According to Tavers Encyclopaedic Medical Dictionary where Lachman's Test is defined as" then he sets out the definition. Whilst it is improper for a Judge to take it upon himself to approach a witness in a case in which he is hearing, in the present case the sin seems to me very much a venial sin because all his Honour was doing, on the face of it, was using a witness as if he were a walking encyclopaedia. After all, if his Honour, instead of consulting Dr Haber, had stumbled on Tavers Encyclopaedic Medical Dictionary under the letter "L" he would have discovered exactly the same material himself. However, there are further problems which may or may not flow from his Honour's contact with the doctor. 7 In his Honour's judgment his Honour says, amongst other things, the following: "Dr Haber seems to suggest that the particular procedure has not yet fully developed, but that it is imminent and that this surgery for her he suggested will take place within two years." Neither counsel has been able to point to any evidence either in the medical reports or in the transcript which would justify that statement, which leaves open an inference that his Honour relied on that evidence which had come from Dr Haber outside the Court record. If so, that is of some importance because the calculation of the damages does depend on that matter. However, as Mr Richardson points out, moneys of no inconsiderable amount, $60,000, are still in the hands of the opponent Franklins Limited, that is some solace for any irregularity, if one exists, in this regard. 8 For those reasons I am of the view that the notice of motion should be dismissed with costs. ****** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.