Albert Edward Jessing v Pegasus Venue Management Pty Ltd

[2008] NSWCA 77

New South Wales

Court of Appeal

CITATION:	Albert Edward Jessing v Pegasus Venue Management Pty Ltd [2008] NSWCA 77
HEARING DATE(S):	23 April 2008
JUDGMENT DATE:	23 April 2008
JUDGMENT OF:	McColl JA at 21; Handley AJA at 2; Mathews AJ at 22
EX TEMPORE JUDGMENT DATE:	23 April 2008
DECISION:	1. Appeal allowed with costs. 2. Judgment of the District Court set aside. 3. Cross appeal dismissed, with no order as to costs. 4. Action remitted to the District Court for a new trial on all issues before a different judge. 5. The respondent to have a certificate under the Suitors' Fund Act. 6. The costs of the first trial to abide the order of the judge presiding at the second trial.
CATCHWORDS:	JUDGES - Duty to give reasons - No question of principle
LEGISLATION CITED:	Workers' Compensation Act 1987 Suitors' Fund Act 1951
CATEGORY:	Principal judgment
PARTIES:	Albert Edward Jessing (Appellant) Pekasus Venue Management Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40624/07
COUNSEL:	P Mahoney SC/G Young (Appellant) S Campbell SC/J G Stewart (Respondent)
SOLICITORS:	Beilby Poulden Costello (Appellant) Ebsworth & Ebsworth (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	848/06
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	23 August 2007

40624/07

MCCOLL JA
HANDLEY AJA
MATHEWS AJA

23 April 2008

ALBERT EDWARD JESSING v PEGASUS VENUE MANAGEMENT PTY LIMITED

Judgment

1 MCCOLL JA: The court is in a position to give judgment now. I will invite Justice Handley to deliver the first reasons.

2 HANDLEY AJA: This is an appeal from a judgment of Hughes DCJ in a personal injuries case. The plaintiff was injured in the course of his employment with Original Tucker Box Co Pty Limited when he tripped on a sheet of plywood in the basement of a building at the Castle Hill showground where the company had its corporate headquarters. The sheet of plywood had been placed over a drain hole to suppress odours coming from it.

3 The plaintiff was using a passageway in the basement to gain access to the office occupied by his employer. The method of access the plaintiff adopted, which was that generally used by the employer’s staff, was the shorter of the two routes that were available. It required him to walk about twenty metres across an unlit passageway to obtain access to a light switch outside the office. Natural light from outside the basement would be available for only a short period as the external door was spring loaded. The plaintiff was then in total darkness and his eyes would still be adjusting to the dark.

4 The plaintiff did not sue his employer because he could not meet the 15% permanent impairment threshold in s 151H(1) of the Workers’ Compensation Act. He sued the occupier of the premises for breach of its general duty of care to persons lawfully on its premises. This attracted s 151Z(2)(c) which required the court to reduce the plaintiff’s common law damages against the occupier to reflect its diminished rights to contribution from the employer.

5 The trial judge assessed the plaintiff’s common law damages against the occupier at $152,074.68 which he reduced by 20% for the plaintiff’s contributory negligence. This would have stood as the assessment of the plaintiff’s common law damages against his employer had that right still been available. The judge assessed the modified common law damages the plaintiff would have recovered from his employer, but for the Act, at $85,094.68 reduced again by 20%. He found that the employer’s contribution was 30% and the occupier’s 70%. In purported compliance with s 151Z(2)(c), he further reduced the plaintiff’s damages to $105,584.54.

6 The plaintiff appealed seeking a new trial. The defendant cross appealed, alleging error by the trial judge in his application of s 151Z(2)(c). Senior counsel for the appellant conceded that unless he succeeded the cross appeal would have to be allowed.

7 The appellant’s principal challenge to the judgment was that his Honour failed to give adequate reasons. The plaintiff claimed that his fall significantly aggravated existing problems in his back and elsewhere. He had a serious back injury in a motor vehicle accident during the 1980s and later had major surgery on his back on several occasions. Prior to the subject accident, although in employment, he was taking pain killing medication at a high level, including pethidine administered by injection. This was established through the records of his general practitioner.

8 The defendant conceded that the fall aggravated the plaintiff’s existing back condition, but contended that this was only temporary and the plaintiff recovered to his pre-accident condition after between six and eighteen months. The credibility of the plaintiff’s complaints of continuing, but increased, back pain was a critical issue in the case. It affected the assessment of the plaintiff’s non-economic loss, his future economic loss, and his claim for domestic assistance.

9 The judge set out the arguments of the parties on this credit issue without making any findings. The court is left to speculate as to what evidence of the plaintiff, if any, was not accepted.

10 The plaintiff’s case for damages for domestic assistance was supported, not only by his own evidence, but also by that of his wife and reports from his doctors. The judge did not refer to the evidence given by the plaintiff’s wife and made no findings as to her credit. There were inconsistencies between the plaintiff’s evidence on this issue and that of his wife which were not resolved by findings.

11 It was clear that both the employer and the occupier were in breach of their duties to the plaintiff. The employer was also an occupier and fully aware of conditions in the basement, and the fact that the shorter and more popular means of access to the office was via the self closing external door. It knew that this means of access required staff, to walk some twenty metres across an unlit basement in the dark where there were obstructions on the floor apart from the sheet of plywood on which the plaintiff came to grief.

12 The apportionment as between the occupier and the employer was a critical issue in the case, bearing in mind the provisions of s 151Z(2)(c) but the trial judge gave no reasons for his apportionment.

13 The defendant had an arguable case on contributory negligence based on the plaintiff’s knowledge of the presence of the plywood and the need to walk twenty metres or so in the dark to obtain access to the light switch. The plaintiff claimed that his conduct was merely inadvertent and did not reach the level required for a finding of contributory negligence. The defendant was not the plaintiff’s employer. The judge gave some reasons for his finding of contributory negligence at a level of 20%, but did not deal with the plaintiff’s argument that his conduct had merely been inadvertent, so that there should be no reduction or a lesser reduction in his damages.

14 The judge rejected the plaintiff’s case on domestic services because the six months threshold in the Act was not satisfied but did not give reasons.

15 The absence of credit findings also affected or may have affected the judge’s findings on the medical issues. On this issue the defendant had a significant case, but so did the plaintiff. He had not only his complaints of increased pain, but he had been unable to work as an employee since the accident. At the time of the trial he was contemplating setting up a business on his own account.

16 Apart from a reference to the evidence of Dr Marnie, and the fact that he apparently did not know that the plaintiff was having pethidine injections before the subject accident, the judge gave no reasons for accepting the defendant’s medical case.

17 It is apparent that the judge failed to give adequate reasons for critical findings of fact and critical decisions on issues calling for reasons such as apportionment and contributory negligence.

18 Mr Campbell SC for the respondent, in a valiant attempt to retain the judgment, invoked SCR Pt 51 r23(1) which permits the Court to refuse a new trial, although error has been established, if the court is satisfied that no substantial wrong or miscarriage has occurred.

19 Although the defendant had a strong case in my judgment the court, cannot properly exercise this power and refuse a new trial. The court could only properly do that if it was satisfied that a new trial could not lead to a more favourable result for the plaintiff. It is not possible for the court to come to that conclusion. There are a multiplicity of different results on different issues which a court might have reached on the present evidence.

20 The court must therefore order a new trial. This must be a new trial on all issues and I would therefore propose the following orders:

1. Appeal allowed with costs.
2. Judgment of the District Court set aside.
3. Cross appeal dismissed, with no order as to costs.
4. Action remitted to the District Court for a new trial on all issues before a different judge.
5. The respondent to have a certificate under the Suitors’ Fund Act if qualified.
6. The costs of the first trial to abide the order of the judge presiding at the second trial.

21 MCCOLL JA: I agree.

22 MATHEWS AJA: I also agree.

23 MCCOLL JA: The orders of the court therefore are as Justice Handley has outlined.

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