Ahrens v Queensland Railways

[1996] QCA 228

IN THE COURT OF APPEAL	[1996] QCA 228
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.

[Ahrens v. Queensland Railways]

[Butkowsky v. Queensland Railways]

Appeal No. 209 of 1995

BETWEEN:

CORRIE WARREN AHRENS

(Plaintiff) Appellant

AND:

QUEENSLAND RAILWAYS

(Defendant) Respondent

Appeal No. 210 of 1995

BETWEEN:

ANDREW CRAIG BUTKOWSKY

(Plaintiff) Appellant

AND:

QUEENSLAND RAILWAYS

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/07/1996

These appeals, which were heard together by consent, were brought from District Court
judgments dismissing the actions of the respective appellants, which were tried together before a jury.

Each appellant sued the respondent as “the occupier of certain land at the corner of Brisbane

Street and Roderick Street, West Ipswich”, which “had constructed upon it the [respondent’s] railway

lines”. Each plaint went on to allege that “the respondent had constructed a fence [t]o the southern side

of the ... railway lines”, and that “there was a strip of land of about 3 metres width angled downwards

towards the railway lines” “[b]etween the fence ... and the ... railway lines”, “after which there was a

vertical drop of some 12 metres approximately to the level of the railway lines.” According to each of

the appellants, on or about 29 July 1991, he “jumped over the fence ... whereupon he slid rapidly and

involuntarily down the strip of land ... and then fell onto the railway lines”, as a result of which he was

injured. The injuries were attributed to the respondent’s breach of duty in that it “failed to construct

upon the land a fence such as to prevent entry upon the land.”

It was not in dispute that the appellants were injured on the night in question by falling onto the

railway lines. A police officer, Wiedman, and an ambulance officer, Bain, gave evidence that the

appellants were seen “lying at the bottom of the cutting” (Wiedman) “beside the track down there”

(Bain). The distance from the point where the appellants were found and Burnett Street, where it

passed over the railway line after intersecting with Brisbane Street, was estimated by Wiedman to be

“40, 45 metres”, and by Bain to be “[p]robably about 45 to 50 metres”. Each of Wiedman and Bain

also gave some evidence relating to the place where the appellants were found to buildings to the east

of Burnett Street which had frontages to Brisbane Street and backed onto the cutting through which the

railway line passed. At trial, it was suggested to the jury that it could ascertain the point from which the appellants fell by the use of a ruler and a plan drawn to scale which showed the intersection of Brisbane

Street and Burnett Street, the passage of Burnett Street over the railway cutting, and the location of at

least some of the buildings referred to in Wiedman and Bain’s evidence. It is necessary to say no more

of this unsatisfactory course at this point, beyond noting that the material section of Brisbane Street to

the east of Burnett Street, the railway line, and the fence between the respondent’s property and the

private property with a frontage to Brisbane Street are not all parallel.

Each of the appellants had been drinking and, immediately prior to sustaining his injuries, was

being pursued by Constable Wiedman and another police officer, Constable Simpson, who had become

separated from Constable Wiedman in the course of the chase. According to Constable Simpson, the

appellants crossed the fence between the respondent’s property and the private property backing onto

it which had a frontage to Brisbane Street further to the east than the point at which they were found.

Each of the appellants gave evidence, which was generally in accordance with the allegations

in their plaint, i.e., that he jumped the fence at a point immediately above the point at which he was

subsequently found by Constable Wiedman. Further, there was evidence, including photographic

evidence, of the nature of the fence at that point and in the immediate vicinity. However, no attempt

was made to establish whether such a fence continued further east, for example, to the point at which

the appellants crossed the fence according to Constable Simpson. On his evidence, the fence was

significantly higher at that point, although that probably matters little, having regard to the way in which

the case was conducted. Apart from such information as it could glean from the scaling exercise which

it was invited to undertake by reference to the estimates made by Wiedman and Bain of the distance between Burnett Street and the place where the appellants were found and/or the evidence which they

gave concerning the Brisbane Street buildings which were situated above the railway line to the east of

Burnett Street, the jury had no evidence to support the appellants’ evidence concerning where they

crossed the fence and the nature of the fence at that point. The jury was entitled to reject the appellants’

evidence, and had contrary evidence from Constable Simpson that the appellants crossed the fence at

a different point, further east, at which the fence was higher; as counsel for the appellants acknowledged

despite criticism of Constable Simpson and his evidence, that evidence was not inconsistent with the

evidence of Wiedman and Bain, if, for example, having crossed the fence, the appellants ran along the

respondent’s land until they fell.

The jury was not requested to bring in a general verdict, but asked eight separate questions,

with sub-questions, in each appellant’s action. Counsel for the appellants said that the questions were

settled after argument, and that he “acquiesced” in their final form, at least in the sense that he desisted

from further argument. No complaint was made that the trial Judge had asked the wrong questions, or

that he had done so despite argument by the appellants against the course adopted.

While the appeals must be disposed of on the basis on which the trials were conducted, it is

appropriate to note that the questions were unsuitable. For reasons perhaps associated with the

decision in R. v. Cockerell (1879) B.C.R. Nov. 28; 7 Thorr 20 (referred to in McPherson “The

Supreme Court of Queensland” at pp. 171-172), juries in civil trials in Queensland are frequently asked

a series of unnecessary questions. The basis for this practice appears to be s. 259 of the Supreme

Court Act 1995 (formerly s. 15 of the Judicature Act 1876).

The effect of this provision has been considered, to some extent, in Mourani v. Jeldi

Manufacturing Co. Pty. Ltd. (1983) 57 A.L.J.R. 825, and that case was discussed in Otis Elevators

Pty. Ltd. v. Zitis (1986) 5 N.S.W.L.R. 171, by Priestley J.A. as well as by Kirby P. and McHugh J.A.,

as their Honours then were. We note that McHugh J.A. was of opinion that Mourani v. Jeldi

Manufacturing Co. Pty. Ltd. decided that under the section the judge could ask only those questions

the answers to which provide the basis by which the “jury’s verdict can be ascertained and its general

verdict formally given”: 196D, 201G-202E. His Honour decided, in the case before him, that questions

which were put to the jury by the judge amounted to “interrogating the jury as to the whole basis of its

assessment of damages” (204C) and were improper; Kirby P. was it appears of a contrary opinion

(185E). The decision illustrates one of the hazards of asking a jury questions of the kind put in the

present litigation, viz. that they may be held to be improper, for the reason given by McHugh J.A.

Although views have differed as to the desirability of obtaining a jury’s answers with respect to

“subordinate questions of fact” (Otis Elevators at 183B, per Kirby P., at 197D per McHugh J.A.,

Bennett v. Dopke [1973] V.R. 239 at 243) as opposed to merely taking a general verdict, experience

suggests that asking a jury detailed questions about their view of the facts, as was done in the present

case, is undesirable. Here, it appears that the case of each plaintiff was simply that his injuries were

caused by the defendant not having adequately fenced off the railway land at the point where each

plaintiff entered it; as to the defendant’s liability, the jury need only have been asked whether they found

for each plaintiff or for the defendant, in each case.

It is true that where separate causes of action are in issue, there must be a separate verdict on

each; this is to avoid outcomes such as that in Cutts v. Buckley (1933) 49 C.L.R. 189, where an action

was brought in deceit and in contract and a single verdict was taken for the plaintiff; the verdict was set

aside because the evidence did not support the contractual claim and it was impossible to tell whether

or not the jury verdict was based on that ground. But it seems plain that to ask the jury such a question

as is discussed below, which required them to say in effect whether they accepted particular evidence

about the point of entry of each plaintiff to the railway land, was unnecessary.

It is necessary, for present purposes, to refer only to the first three questions to the jury and

their answers.

Question 1, the relevance of which is not obvious, asked:

“Was the plaintiff running from officers of the Queensland Police Service when he jumped the fence?”.

The jury answered:

“Yes”.

Question 2 asked:

“Did the plaintiff jump the fence at the place nominated in his evidence?”.

The jury answered:

“No”.

Question 3 only required an answer if Question 2 had been answered “Yes”, but the jury

nonetheless went on to answer Question 3, which was as follows:

“When the plaintiff jumped the fence did he do so in circumstances in which he fully understood the risk
of injury, and fully accepted that risk?”.

The jury answered:

“Yes”.

If specific questions were to be asked, then the matters the subject of Question 2 on which the

jury’s opinions would have been useful were whether each appellant jumped the fence and, if so,

whether the fence was reasonably safe at the point at which he did so. However, as earlier stated, no

complaint is made by the appellants concerning the questions in fact asked. Further, they accepted that

the answers to each of Questions 2 and 3 separately required the dismissal of their appeals if either

answer was not set aside, as they sought. Shortly stated, the appellants’ argument was that the negative

answer to Question 2 was perverse because an affirmative answer was the only answer reasonably

available to the jury on the evidence, and that such perversity on the part of the jury tainted its

affirmative answer to Question 3, requiring that it also be characterised as perverse and set aside.

No authority was cited in support of the latter submission, which we do not need to discuss.

Nor do we propose to comment on the foundation of the appellants’ claims, namely, that the

respondent breached its duty to them by failing to construct upon the land “a fence such as to prevent

entry upon [its] land”. The appellants’ appeals fail at the threshold. On the evidence briefly

summarised above there is no basis upon which it could be concluded that a reasonable jury, acting

reasonably, must have found that each, or either, appellant jumped the fence “at the place nominated

in his evidence”.

In the circumstances, the appeals must be dismissed. The appellants must pay the respondent’s

taxed costs of the appeals.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[Ahrens v. Queensland Railways]

[Butkowsky v. Queensland Railways]

Appeal No. 209 of 1995

BETWEEN:

CORRIE WARREN AHRENS

(Plaintiff) Appellant

AND:

QUEENSLAND RAILWAYS

(Defendant) Respondent

Appeal No. 210 of 1995

BETWEEN:

ANDREW CRAIG BUTKOWSKY

(Plaintiff) Appellant

AND:

QUEENSLAND RAILWAYS

(Defendant) Respondent

FITZGERALD P.
PINCUS J.A.

MCPHERSON J.A.

Judgment delivered 12/07/1996

REASONS FOR JUDGMENT - THE COURT
Appeals dismissed. The appellants to pay the respondent’s taxed costs of the appeals.

CATCHWORDS:	PERSONAL INJURIES - jury trial - appellants sued respondent as occupier of land on which they sustained injury - alleged failure to construct a fence upon the land to prevent injury - jury asked eight specific questions with sub-questions - appellant had acquiesced in the questions’ final form - s. 259 Supreme Court Act 1995 (former s. 15 of the Judicature Act 1876) - whether certain questions put to jury were improper.
R. v. Cockerell (1879) B.C.R. No. 28 Cutts v. Buckley (1933) 49 C.L.R. 189 Bennett v. Dopke [1973] V.R. 239 Mourani v. Jeldi Manufacturing Co Pty Ltd (1983) 57 A.L.J.R. 825 Otis Elevators Pty Ltd v. Zitis (1986) 5 N.S.W.L.R. 171
Counsel:	J.W. Lee for the Appellants G. Gibson Q.C. with him A. Wilson for the Respondent
Solicitors:	Goodfellow & Scott for the Appellants Corrs Chambers Westgarth for the Respondent
Date(s) of Hearing:	20 June 1996