Calin v The Greater Union Organisation Pty Limited

[1990] HCATrans 160

_BtJt -!.) 1,AU. STRALIA ,I.!' -.,),~)' $~z '-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S57 of 1989

B e t w e e n -

GEORGHITA CALIN (by her Tutor

Constantin Calin)

Applicant

and

THE GREATER UNION ORGANISATION

PTY LIMITED

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 3.38 PM

Copyright in the High Court of Australia

Calin(3) 1 6/8/90

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friends, MR B.R. GARLING and

MR R. GAMBI, for the applicant. (instructed by the

Legal Aid Office)

MR D.F. ROFE, QC: If Your Honours please, I appear with my

learned friend, MR B.C. LYNCH, for the respondent.

(instructed by Malcolm Johns & Co)

MASON CJ: Mr Jackson.

MR JACKSON:  Your Honours, this is a case where essentially

two bases are advanced for the grant of special

leave. The first is one where, it is submitted,

the interests of justice in the particular case
merit the grant of special leave, and I say in that

regard that they merit the grant of special leave,

in a sense, in the end because although the case in

some respects gives rise to important points of law
the issues were not the subject of an application

for re-directions or a ground of appeal in the

Court of Appeal.

Your Honours, may I indicate as briefly as may

be the way in which we would put the applicant's
case? Your Honours, the applicant's case was that
she had slipped and fallen in the Rapallo Theatre,

in a darkened cinema, after she and her family had bought tickets to enter. That appears summarized,

Your Honours, at page 134 in the application book, and if I could take Your Honours particularly from

about line 14 through on to about line 22 on the

next page.

Now, Your Honours, what appears from that is

that the applicant was thus a contractual entrant
and the duty of care owed to her or standard of

care, perhaps, I should say, was that there was, in

our submission, an implied warranty; that the

premises were as safe for the mutually contemplated

purpose of going to see the film in the auditorium

might make them. Your Honours, that test, if I can	as reasonable care and skill on the part of anyone	give Your Honours a reference to a recent statement
of it is in Morawski v State Rail Authority,
(1988) 14 NSWLR 374. Your Honours, it might be
convenient if I were to give Your Honours copies of
that and some other cases to which I will refer - there are four sets of them.

Your Honours, one sees the statement of the

test at page 381 in the judgment of

Mr Justice Clarke with which Your Honour
Mr Justice McHugh agreed. At page 381 about

letter F, the quotation from the judgment of

Mr Justice McCardie in Maclenan v Segar and

immediately prior to that Mr Justice Clarke said:

Calin(3) 2 6/8/90

This appears, in my opinion, to be correct.

And then goes on to set out the test in the terms

in which I have stated it before, Your Honours, and

his discussion of that goes on over the next two

pages and, in particular, at page 383F in the short

paragraph contained in it:

If a plaintiff secures entry to premises by dint of a contract then the warranty

described by McCardie J is implied as a matter

of law.

Now, Your Honours, the standard of care

appropriate in the case of a contractual entrant

was not dealt with by the Court in Australian

Safeway Stores Pty Ltd v Zaluzna,

(1987) 162 CLR 479, in which the invitee licensee

distinction was brought to an end. Your Honours,

it is apparent that both the Court of Appeal and
the trial judge in his directions to the jury
adopted the lesser standard, that is the general
standard of care, not the higher standard
appropriate in the case of a contractual entrant.

Could I give Your Honours the references in that regard? The first at page 13, and His Honour at

about line 19 started the passage:

Let us consider the matter of negligence, the cause of action relied upon by the

plaintiff.

And the passage goes on to the bottom of that page

and through on the next page to about line 19.

Now, Your Honours, it is apparent, in our submission, that whilst His Honour does refer to

the fact that the plaintiff was a lawful entrant

whose ticket had been paid for, the way in which he

then proceeds, at about lines 10, 11 and 12, to

describe the duty, is not a· description of the duty

in the manner which is contemplated in the case of

a contractual entrant.

Your Honours, if I could go then to the

Court of Appeal. At page 137 the court's judgment

commences relevantly at about line 7. That is the

relevant paragraph, and then, Your Honours, at

page 144 in the judgment of Mr Justice Samuels in

the short judgment commencing the third line on the

page.

Now, Your Honours, it seems clear enough, in

our submission, that the contractual entrant test

was not applied but a rather lesser test.

MCHUGH J:	Was it pleaded?
Calin(3)	6/8/90
MR JACKSON:	Your Honour, the base facts were pleaded

without there being, I think, a particular

statement of the requirement of the test.

Your Honour, I will have that checked but -

McHUGH J: But it does raise some important issues, does it

not, because - - -

MR JACKSON:	Your Honour, I am sorry, paragraph 4 of the statement of claim alleged that the plaintiff was a
contractual entrant on the defendant's premises and
the defendant agreed for award to allow the
plaintiff, et cetera.  Your Honours, the
application on the correct test was a matter of
very considerable importance in the particular case
because the system of cleaning, as such, was one
which was unlikely, in our submission, to be
capable of satisfying the contractual test.
Your Honours, in that regard may I indicate to Your Honours very briefly what the evidence was
about it and it appears in four passages. The
first is at page 27, Your Honours, commencing about
point 9 and where the manager, Mr Callaghan's,
evidence is referred to and this is the judge's
summing up to the jury.

Your Honours, that goes on, the passage goes

on, to the top of the next page commencing about

line 9. What Your Honours will see is that the

cleaners came after the last performance each day,

there were no cleaners during the day. "The way

refuse was removed by the usherette was that she

would pick up any large objects and dispose of them

or kick any rubbish or drink cartons under the

seat." Your Honours at page 22 the usherette's

evidence commences about line 8 and again

His Honour's summing up to the jury and if I could

take Your Honours down through it to the actual

quotation from her evidence down to about line 27.

Now Your Honours, at page 23, the evidence

commencing about line 14 and going through to the

next page at about line 8, and there is then, Your

Honours, the summary of it by the Court of Appeal

at page 138 and Your Honours, commencing about line

17, Their Honours quote from that passage of the

primary judge's summing up to the jury, which were

accounted in my learned friemd's submissions and I

should say, Your Honours, that it was not as if

there was one usher for the theatre. There was one

usher for two adjacent theatres, the usher going

from one to the other as she chose.

Now, Your Honours, the issue was thus one

which, in our submission, was likely to be critical

to the applicant's case and the question which

arises from that is whether the applicant is bound

Calin(3) 4 6/8/90

by the fact that the judge's summing up was not	challenged in the sense that redirections were not
sought at the trial on this point and, secondly, the
fact that the issue was not raised specifically in
the Court of Appeal. Now, Your Honours, the extent
to which the failure to take a point in these
circumstances bars it being raised later has been
discussed in a number of cases in New South Wales
and, Your Honours, there seem to be three possible
views, and when I say three possible views, I am
really speaking essentially about degrees of
emphasis on the importance of taking the point in the first instance.

Your Honours, two of the views are represented

in the case to which I referred earlier,

Morawski v State Rail Authority, 14 NSWLR 374, and

in particular at page 376. Now, Your Honours, that

is in the judgment of the president of the Court of

Appeal. If one commences at letter Con page 376,

His Honour goes on to express, if I could perhaps

call it the most liberal view in terms of the

ability of the court to deal with issues,
notwithstanding the fact they had not been raised in

the manner presently contemplated before. That goes

on, Your Honours, from page 376 on to page 377,

between letters Band C. Now that is one view.

The second view, Your Honours, appears in the

judgment of Mr Justice Clarke with which

Your Honour Justice McHugh agreed and,

Your Honours, that appears at the top of page 381

where His Honour says:

It is well-established that there is an

onus upon counsel to seek in clear terms any

redirection which he regards as necessary to

correct, for instance, an error or omission in

the summing-up. While the better view seems
to be that the failure to seek a direction is not necessarily fatal to an application for a

new trial there is no doubt that it is a most

material matter.

And His Honour went on to quote from some observations of Your Honour Justice McHugh in

Eggins' case. Your Honours, the view expressed at

page 381 seems, with respect, to be in effect the

middle view. If I may say so, again with respect,

Your Honour Justice McHugh appears to have adopted

in Eggins' case a rather stronger view against the

ability to raise the points at a later point.

Your Honours, before I come to Eggins' case,

may I give a further reference to the two views to

which I have already adverted. They may be seen in

Bright v Sampson and Duncan Enterprises Pty Ltd,

Calin(3) 6/8/90

(1985) 1 NSWLR 346 and could I refer Your Honours

to page 350. Mr Justice Kirby at page 350 in the

paragraph commencing on the third line expresses a

view which is similar to that expressed in the

reference which I have already given.

Your Honours, could I go then to page 360 and

at page 360 Mr Justice Samuels, in the first new

paragraph on the page, speaking of a sign which

purported to exclude potential contractual

liability said that he regarded:

the sign as incapable of excluding the
respondent's contractual liability.

And then went on to set out the terms of the relevant rule of the supreme court and his view of

the approach which should be taken and,

Your Honours, the passage goes on the remainder of

that page and through to page 361 about the end of

letter E after the quotation from Burston's case.

His Honour, towards the bottom of page 361

discusses the application of his approach to the
particular case and then goes on to say, on

page 362, in the first new paragraph:

The appellant's case was not tried

according to law: there was therefore a

miscarriage of justice.

And His Honour in saying that is referring back to the terms of the rule which he has quoted on

page 360.

Your Honours, finally in this case, may I take

Your Honours to page 368 where Mr Justice Mahoney,

under the heading "New Trial", expressed also a

relatively liberal view of the approach to be

taken.

Now, Your Honours, could I then go to the decision to which I earlier adverted. That is

Eggins v Brooms Head Bowling and Recreational Club

Ltd, (1984) 5 NSWLR 521. The leading judgment was

that of Your Honour Mr Justice McHugh and the

relevant passages are at page 523 where, at the

bottom of the page, Your Honour quotes from some

earlier observations of Mr Justice Kirby and then

at the top of the page Your Honour says that

Your Honour is:

unable to agree that the ultimate guiding

principle is that a party is entitled to have

the case put to the jury as the law provides.

Calin(3) 6 6/8/90

And then Your Honour goes on to deal with, really,

a slightly different proposition, a question of

application of the approach rather than the

approach itself. But Your Honour does go on to

express views on page 524 which are to the

opposite, one might think, of the more liberal

approach.

Now, Your Honours, the question whether such

an issue may now be taken is in itself, in our

submission, an issue of importance and the approach

to be taken by courts in dealing with issues of

that kind is, itself, an issue of importance and

one which we would submit, in the light of the

facts of the particular case, merits the grant of

special leave.

McHUGH J: This Court has taken the hard-line view on two

recent occasions, has it not, Coulton v Holcombe

and Water Board v Moustakas?

MR JACKSON:  Your Honour, they are not really quite the same

thing, with respect

McHUGH J:	Maybe Coulton is because that is a question of the applicable law.
MR JACKSON:	Yes, Your Honour, but if what one is talking

about is not any question of really what the
applicable law was but simply circumstances where
the way in which a case has been conducted by, with

respect, apparent error has led to an issue going to the jury where the issue which has gone to the

jury ha~ been framed in a way which is incorrect

and which is significantly disadvantageous to a

party, then the question of the ambit of the

discretion to permit the point later to be raised

is itself one of importance, we would submit, and

one which really stands on its own as distinct from

being determined by decisions on other fact

situations. That issue really being to what extent

is a party bound by an obvious error of law by

counsel which is yet capable of remedy.

Your Honours, could I say that the second major issue is that of the test applied by the

Court of Appeal.

MASON CJ: Before you leave that, of course,

Mr Justice Samuels agreed with Mr Justice McHugh's

judgment in Eggins so that what you regarded as an

expression of liberal view on the part of

Mr Justice Samuels is not borne out by the position

that he takes in Eggins.

MR JACKSON: Your Honour, I am sorry, what I was seeking to

convey was that three different views seem to have

Calin{3) 7 6/8/90

been expressed by members of the Court of Appeal

and I was really seeking to say that if one looked,

for example, at Eggins' case one would think that

the ambit of the discretion to be applied, assuming

there is one, is one which really is circumscribed

by the fact that if it was purely a matter of not
seeking redirections, that would be the end of the

matter. That view seems not to be the view which

prevailed, in effect, in the later case of Morawski

itself and Your Honour Justice McHugh was a member

of that court where the court appears to accept a

somewhat wider discretion and, indeed,

Your Honours, it would be difficult, we would

submit with respect, to regard the issue as being

absolutely settled unless, of course, the Court

itself entertains the issue and decides it.

MASON CJ: Yes.

MR JACKSON:  Your Honours, could I say in relation to that

that the present case is one where, if the Court

were minded to entertain the application for

special leave, bearing in mind that point, the

circumstances of it are such that they would

militate in favour of the Court doing it because it

is a case of a plaintiff claiming to be injured

whose case, one would think, fairly clearly fell
within the harder test on the facts which did not

really seem to be in contest, at least in relation

to that.

Your Honours, could I come then to the second

question and that is one of the test applied by the

Court of Appeal. Your Honours, the way in which

the case was conducted in the Court of Appeal

appears to have been that there were written

submissions which the court received, as it often

does of course in cases of this kind, and although

the written submissions do not appear to have been

extensive, the case proceeded briefly, as

Your Honours will see from page 131, in terms of

oral argument and then an extempore judgment was given immediately.

The test set out by the court appears at

page 137 about line 21 and, Your Honours, there the

President, with whose reasons the other members of

the court agreed, said:

In order to secure the relief ..... the

appellant must show that the jury's verdict

was, as it is sometimes put, perverse or as

more usually stated nowadays, that the verdict

was not open to the jury on the evidence which

was placed before it at the trial.

Calin(3) 6/8/90

His Honour went on to emphasize the stringency of the test.

Your Honours, that statement or, with respect,

restatement of the test for when a jury's verdict

is perverse is likely, in our submission, to have

the result that it approaches a"no evidence" rule,

if I can put it that way. Your Honours, in our

submission, the correct test is that stated by the

Court in Hocking v Bell, (1945) 71 CLR 430 and at

the bottom of page 440, going on to the top of

page 441, in the judgment of Chief Justice Latham

where His Honour said - and could I give

Your Honours simply a reference to the last

paragraph on page 440. What is clear, of course,

is that it is possible for a verdict to be set

aside on the ground of perversity notwithstanding

that there is some evidence both ways. Our

submission is that the statement or restatement of

the test in the way put at page 137 is really to

make it almost a case where the only circumstances

in which an appellant can succeed are if it be

demonstrated that there was no evidence to go to

the jury on that point.

Your Honours, for those reasons our submission

is the case is one which merits the grant of

special leave.

TOOHEY J: If I could just ask you this, Mr Jackson: the

relief sought if the matter were one for which

special leave were granted appears to be the

substitution of a verdict?

MR JACKSON:  I am sorry, Your Honour, it would have to be a

new trial.

TOOHEY J:	Thank you.
McHUGH J:	Your second point is very much dependent upon

your first point, is it not?

MR JACKSON:  Your Honour, the second point is one which

exists independently of the first but, of course,

if the first one is right it reinforces it, yes,

Your Honour.

McHUGH J: Yes, but accepting your submission that there has

been an error on the part of the Court of Appeal in

the test it applied, and there is a passage at

page 139, as well, which reinforces at 137 where,

at line 18, Their Honours says:

Upon that case, if accepted, it would clearly

have been open to the jury to conclude adverse

to the appellant.

Calin(3) 6/8/90

Well, it is not merely a question of taking the

other side's case. It has got to be weighed

against your case as well. That is the whole

difference between the two tests.

MR JACKSON:  Yes.

McHUGH J: But on the way the case was left to the jury,

weighing the two cases up, if the Court of Appeal

had applied the right test - I am assuming for the

moment that it did not - surely it would still have

reached the same conclusion, would it not?

MR JACKSON:  With respect, Your Honour, no. I am sorry,

Your Honour, perhaps I misunderstand what

Your Honour is putting to me but - - -'

McHUGH J: Leaving aside your Watson v George? point, the

Maclenan v Segar point.

MR JACKSON:  Your Honour, if one leaves that aside, one has

a situation where all that there is, in terms of

any means of cleaning the place, is that which is

summarized at page 138 and page 139. In effect,

all that happens is that one has a darkened theatre

where, at the end of the day the cleaners come

along every day and if there is anything else seen
around by someone who may or may not be there at

any particular time, it is either picked up or

kicked under a seat.

Now, Your Honours, in our submission, if that

is the whole of the evidence then, in those

circumstances it will be a verdict which, we would
submit, would be relevantly perverse to find that

there was any system which was satisfactory.

McHUGH J: That is not the issue, is it? It is not a

question whether the system was satisfactory. It

is whether a proper system would have avoided this

injury.

MR JACKSON:  Yes, Your Honour, I am sorry, I was putting it

in a short fashion.

McHUGH J:  One of your problems is that you do not know how

long this banana, assuming it was the banana peel,

was there. It might have been dropped five minutes

before, in which case, unless you had a system of

cleaning every minute or constant supervision, the

system would not have avoided the injury.

MR JACKSON:  Your Honour, could I say two things about that?

The first is that that is always the case, one

would think, in - - -

Calin(3) 10 6/8/90

McHUGH J:  I know, that is why plaintiffs usually lose these

cases.	Once upon a time they did not even get to
the jury.

MR JACKSON:  Your Honour must have had a singularly bad run

of luck: bad or good.

McHUGH J: That is New South Wales Supreme Court judges:

Hampton Court v Crooks.

MR JACKSON:  Your Honour, perhaps they all wore golfing

spikes as they walked around, I do not know. But the second feature about it is this, Your Honour,

that this was a - the way Your Honour put the

question to me, Your Honour said that unless there

was supervision, but what is wrong, may I ask

hypothetically, with a requirement that there be

supervision? After all, persons are entering upon

an area which is darkened.	They have to go into
it.	The possibility that people will lose their

footing is one that is obvious and if there is no

one at all there then, in those circumstances, we

would submit, it would follow that - - -

McHUGH J: But that is a jury question and a Sydney jury

would be entitled to take into consideration the

big change that has come over theatres in this

State in recent years where you have a number of

theatres in a complex; one ticket box dealing with

the lot; a fairly skeleton staff; costs kept down.

The question as to whether it is reasonable is a

pure jury question, is it not?

MR JACKSON:  Your Honour, I accept that in the end it is a

jury question, of course, but that, with respect,

is in a sense the question as well as the answer

because the question is whether in the particular

case, and the evidence that is demonstrated, what

could be said was that there was a preponderance of

evidence. Your Honour, our submission would be

there was evidence leading to the fact that there

was no satisfactory method of inspection whatsoever

and that that would be sufficient to lead the jury
to the right conclusion.	Your Honour, I do not

think I can take that point any further. That

would be the submission we would make.

Certainly, if one left out of account the

first point we have been making, the Watson v

George point, the defendant's case is stronger but, in our submission, it still would fail.

MASON CJ: Yes, thank you, Mr Jackson. Yes, Mr Rofe?

MR ROPE:  If Your Honours please. Have Your Honours our

affidavit of Joseph Jacobs which was filed

1 August, simply because the applicant's additional

Calin(3) 11 6/8/90

affidavit raises these matters and it was sought to
bring some further material to the Court? It, in

effect, annexes the applicant's written submissions before the Court of Appeal so that this Court would

know what issue was put to the Court of Appeal, and

also the notice of appeal to the Court of Appeal.

Your Honours, in our respectful submission, my

learned friend seems to assume that there was some

error of counsel at the hearing, that the

contractual duty or the breach thereof was not a

matter put to the jury. The trial judge, I think,

summed up over a number of days and at the end of

each day he asked - specifically invited both

counsel whether they wish to raise any matter or

redirection and, again, at the end of the summing

up he invited counsel to raise any matters for

direction or redirection on matters of law. That

invitation was not taken up by counsel for the

applicant at any stage.

Now, Your Honours, it is an assumption to say,

..... some sort of ignorance, this was a case in

which it was fairly tactically fought. Might I

just perhaps draw Your Honours' attention in the

application book to the way the trial judge put it

to the jury at the bottom of page 39 where His

Honour said:

This brings me members of the jury, to

the stark confrontation of evidence, and

submissions which have been called and made

respectfully on behalf of the plaintiff and

the defendant. The defendant said that the

disability alleged by her is not genuine.

That it is a fraudulent attempt by her, and

conspiracy with members of her family, from

whom you have heard, to wrongfully gain an

award of damages from you against the

defendant. The onus in this respect, lies

upon the plaintiff, but only on the balance of

probabilities, to satisfy you that the

complaints which she makes are genuine. By

that I mean not fraudulent, and that they are

causally related, that is, they were
materially contributed to by the negligence of

the defendant, and its effect upon her. So as

has been expressed, indeed by both counsel,

the battle lines have really been clearly

drawn in this court.

Now, it may well have been a tactical decision

to leave the direction as given by His Honour - it

was a clear and simple direction. In any event,

the breaches were well addressed upon. They would

have been the same breaches in any event if a

contractual duty and, indeed, to perhaps attempt to

Calin(3) 12 6/8/90

explain another duty to the jury may have been felt to complicate matters by counsel then appearing for the applicant.

MASON CJ: But why would a tactical decision be made to

leave to the jury a test which was unduly

unfavourable to the plaintiff?

MR ROFE: Well, it may not have been thought to be

unfavourable. The plaintiff's counsel may have had

a view of the evidence which made the legal

representatives confident that the breaches of that

duty would commend themselves to the jury.

MASON CJ: Plaintiff's counsel must have had a very

different view from the view taken by my brother

McHugh.

MR ROFE:  Well, let us put it this way, Your Honour: when

the matter came before the Court of Appeal once
again, the matter was not sought to be raised

before that court and, indeed, if it had - - -

MASON CJ:  Maybe, but I do not think that supports an

inference that the point was not taken at the trial

for tactical reasons.

MR ROFE:  One cannot say - I certainly cannot say,

Your Honour, and one does not know, the opportunity

was there and called for on a number of occasions

for an appropriate direction and it was not given.

The trial went on for seven days. As I say, the

battle lines were drawn; the matter went to the

jury with those battle lines as directed by and

explained by His Honour.

McHUGH J:  Can I tell you what troubles me? You see, while

the rule remains that counsel are immune from

liability for the way they conduct their cases, is

it not almost corollary that there should be some

relaxation of the rule about raising these points

on appeal? It would be one thing if a litigant had a remedy against the counsel who had failed to take	a point and had the case put in accordance with the
law. The two points may be interrelated.

MR ROFE:  Can I seek to answer it in this way? As it

stands, Part 51 rule 16(l)(c) of the Supreme Court

Rules itself would have prevented the Court of

Appeal ordering a new trial on a point not taken,

as this one, unless satisfied that some substantial

wrong or miscarriage had been occasioned thereby.

Now, we are getting even remoter from the

Morawski situation - - -

Calin(3) 13 6/8/90

McHUGH J:  I do not regard Morawski, really though, as

dealing with this sort of situation. Morawski, in

one sense, is where somebody stands by; he does not

take objection and then comes along because the law

has been declared in a different way.	It is not
quite in point.

MR ROFE: Well, no, indeed it is distinguishable for another

ground; perhaps I will just mention it now and put

it away: that is to say, Morawski's case was a

case where the trial judge had declined to give the

direction sought and that is, we would have

thought, a very different situation. But here we

have not only a situation where the direction is

not sought but when the matter comes before the

Court of Appeal and if it had been sought then to

rely upon it, then the applicant would have had to

satisfy that court there was some substantial wrong

or miscarriage of justice but it is not raised

there. The only matter raised there is the matter

of the verdict being against the weight of

evidence.

Now, it now becomes before Your Honours on a

special leave application and it is put that it is

a special leave matter, the fact that their,

perhaps ignorance of counsel or mistake of counsel

resulted not once but on two occasions, the matter

not being raised at all.

McHUGH J: But I think the point is put this way, that this

question as to whether a litigant should be able to

raise this point, having regard to the authorities,

is a matter for special leave, not whether it will

succeed ultimately.

MR ROFE:  Your Honour, we would submit in the circumstances

here this would not be an appropriate vehicle for it because really the two stages where the matter

has simply been not raised and, indeed, even in the

draft notice of appeal to this Court it is not

raised, although I agree that would probably be

amended if special leave were granted but we would

say that there must come a stage where this Court

says, "Well, in fairness to perhaps the respondent,

this is not the vehicle upon which special leave is

to be granted to look into that", I agree,

"important matter."

The second thing we would say about it, that

the probabilities would be that the jury's verdict

would have been the same bearing in mind the same

breaches undoubtedly would have been relied upon as

were relied upon in relation to the breach of the

general duty of care, and Warson v George does say

that you, even under the contractual duty, have to

point to some negligence on the part of somebody so

Calin(3) 14 6/8/90

that, again, the negligence that would have been

sought to be relied upon, presumably, were the

absence of an usherette continuously and some

alleged inadequacy in the cleaning system.

I might remind Your Honours, this was not a

darkened theatre in the complete sense; the jury

were entitled to accept the evidence that there
were footlights on every row. There were no steps

down the aisle; it was fully carpeted. There was

evidence, which was contested, that the family when they went in, the son was eating something out of a

paper bag. No independent person saw the applicant

slip on a banana skin, although a banana skin was

seen after the fall and was produced. There were

matters of intense contest in this case, not only

on the medical issues but, of course, on some of

these liability issues. So that we would

respectfully submit that the probabilities are that

a jury would have said, "All right, well, we've got

this other duty of care explained to us and there

are the breaches there but we are not satisfied", bearing in mind again that the test, the onus, is

on the applicant to establish the breaches and the

causally-related damages.

So, we would submit all those matters add up

to the situation that if you thought this was a special leave point, the circumstances of this

case are not such it is appropriate to make this

the vehicle for it.

McHUGH J: But why should you not look at both points

together? What do you say about the fact that the

Court of Appeal misdirected itself as to the proper

test?

MR ROFE:  I am coming to that, Your Honour. With respect,

we would say that the Court of Appeal did not

direct itself to other than the correct test. Some

of the authorities are collected conveniently in

the High Court in Middleton v Melbourne Tramway and	Omnibus Company Limited, (1913) 16 CLR 572 and Your
Honours will, of course, be familiar - and this
case cites some of the tests - that have existed
since Metropolitan Railway Company v Wright where
Lord Herschell put the test as, that the jury's:

verdict ought not to be disturbed unless it

was one which a jury, viewing the whole of the

evidence reasonably, could not properly find.

Lord FitzGerald, in that case:

whether the evidence so preponderates against

the verdict as to shew that it was

unreasonable and unjust.

Calin(3) 15 6/8/90

McHUGH J: But looking at the evidence as a whole is exactly

what the Court of Appeal did not do in this case.

MR ROPE:  We would say, with respect Your Honour, it did.

It proposed itself the test whether it was open to

the jury and that, of course, by inference, acting

reasonably in accordance with their instructions,

to find a verdict for the defendant. Now, in our

respectful submission, that is no more and no less

saying what these cases have said for over one

hundred years now, that that is a test as to

whether the verdict ia against the evidence, the

weight of evidence or whether the jury have acted unreasonably. It is really a matter of verbiage,

in our respectful submission.

McHUGH J: Well, is it? I mean, you have got to take your

case at its highest, there is no doubt about that,

as they said at page 139, but they have also got to
look at the other side's case, perhaps from the

lowest, and then make a judgment.

MR ROPE:  Your Honour, with respect, we submit that is

exactly what the Court of Appeal did.

McHUGH J:  The court does not seem to have looked at the

other side's case though.

MR ROPE:  We submit that they looked at the other side's

case in the sense of saying, "Well, taking the
respondent's case at its highest, these were the
matters that were presented to the jury; these were

the matters directly or by way of inference." Was

it open to that jury, acting reasonably and justly

to find a verdict for the respondent bearing in

mind, of course, that the test is even more

stringent where the onus is on the applicant? It

has been said that before you can, in a sense, set

aside a verdict and substitute a verdict in favour

of a party on whom the onus lies - in this case,

with the plaintiff - then the evidence must, in

effect, virtually dictate that the jury should have

found in favour of the party on whom that onus

rests. There are a number of cases to that effect

in this Court, Your Honours. If I could just refer

to Commissioner of Railways v Small, reported in

1955 at page 370. I have four copies of that

short report. These are cases which often deal

with contributory negligence situations.

Justice Sir Owen Dixon said at page 370, in the right-hand side, about point 5:

In matters of this description where the burden of proof is upon the defendant -

and that in the contributory negligen·ce situation -

Calin(3) 16 6/8/90

it must appear to the Court, before the

verdict can be set aside and a contrary

verdict entered, that the jury could not do

anything else but find in accordance with the

defendant's contention.

So, in one sense the Court of Appeal applied a more

favourable test to the applicant than to the

respondent because the Full Court of Victoria in

Pujivk v Savic, (1971) VR 632 is another example

where the stringency of the test is spoken of.

MASON CJ: It is at page 635, is it not, at about 43.

MR ROFE:  That is right, Your Honour, yes. And also in this

Court, Williams v Smith, (1960) 103 CLR 539 where

this Court said that it is not sufficient to show

that the jury was not merely wrong but that a

contrary view ought conclusively have to be taken.

McHUGH J: But that, is not against the evidence case, that

is a case of whether, as a matter of law, a

plaintiff is entitled to a verdict under section 7

of the Supreme Court Act.

MR ROFE: Yes, that certainly was but that, with respect -

there is not a great distinction in the authorities

between that situation because, for instance, in

this case - - -

McHUGH J: Surely, there is a great deal of difference

between them. One is whether if you accepted, in

this case, a party's evidence, a jury could find
for it and the other question which is involved in
this class of case, even accepting that evidence:

was the verdict reasonable, having regard to the

other side's evidence which could reasonably be

accepted. They are two different things.

MR ROFE: Well, Your Honour, we would say, with respect, to

pose it that way is to say, "Well, was it open to a

jury acting reasonably to find a verdict for the

defendant?" If it was not, then the jury have

acted unreasonably and, indeed, against the

evidence of the weight of evidence.

McHUGH J: Well, you can test it better - take a plaintiff's

case. The plaintiff's case might be sufficient to

get the case to the jury so that if there is no
further evidence, a jury acting reasonably could
find a verdict for the plaintiff. But then the
defendant might call a great amount of evidence and
it then becomes obvious that the jury could not
reasonably find for the plaintiff having regard to

the defendant's evidence. They are two quite

different things.

Calin(3) 17 6/8/90

MR ROFE: Well, the courts have been very slow,

Your Honour, to sort of determine the weight of

evidence by simply looking at the number of

witnesses called. It is the quality - - -

McHUGH J: It is not a question of the number of witnesses, it is a question of weighing up the reasonableness of the two cases.

MR ROFE:  We would submit that is what the Court of Appeal

did. They looked at what was available to the jury

which would entitle them to find for the defendant

and, in a sense, we would say with respect, that is

no more, no less than weighing the evidence.

McHUGH J: Yes, you are entitled to say, "The jury should

take my case reasonably at its highest and take the

other side's case at its lowest so far as they

reasonably can and then weight up those two." But I

do not know that the Court of Appeal did that, did

they?

MR ROFE:	Your Honours, we would submit they did, if one goes to page 138 point 8, perhaps starting a little
earlier, line 8 through to page 140. His Honour
Mr Justice Kirby posed the dispute that was
tendered to the jury, posed the various arguments of counsel and, we would submit, it was not necessary - that, in a sense, is the weighing that
is - - -

McHUGH J: Yes, but pages 138 to 140 is a weighing of your

case. It does not mention the other side's case.

MR ROFE:  Yes, bu't if our case, when weighed, Your Honours,

is found to constitute an unreasonable situation

then we would - and, indeed, added perhaps a more

stringent test, and there was indication that the

jury must have found for the plaintiff, then there

is no question that the verdict would have been

unreasonable, it would have been against the

evidence and the weight of the evidence. There

does not seem to have been in the cases any

particular distinction made between a verdict that
is said to have been perverse, a verdict that is
said to have been against the evidence or a verdict

that is said to have been against the weight of the

evidence. It has been somewhat like a formula that

is often used and, again, Your Honours, we would

submit that the result, if the Court of Appeal had

done their weighing in some other way, would, in

our submission, have almost inevitably been the

same, having regard to the stringency of the test

that is required in order to set aside the verdict

in favour of the defendant in a case in which the

onus is on the plaintiff.

Calin(3) 18 6/8/90

So that in summing it up, we would say that

whichever way you look at it, the decision of the

Court of Appeal not to set aside the verdict of the
jury and order a new trial, whether limited to
damages or generally, was correct or certainly not
attended with sufficient doubt to justify a grant

of special leave, particularly, as I say, this case

was fought in the context of the respondent's

contention that it was a fraudulent claim from

start to finish. Those are our submissions.

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  Your Honours, in relation to the approach taken

by the Court of Appeal, it seems to be summarized

conveniently at page 140 in the paragraph

commencing about line 13 and, in particular, from

lines 15 to the end of that paragraph; the passage

commencing:

that this Court is not by law -

and so on. That appears to have been the

underlying approach taken by the court.

Your Honours, the second feature is that

Hocking v Bell, 71 CLR at page 442 refers expressly

to the distinction between a case of no evidence
and a case of evidence greatly preponderating for
the defendant; indeed, the example Your Honour

Justice McHugh referred to earlier in putting something to my learned friend. It is the last

paragraph on page 442 going over to page 443.

Your Honours, one thing I should have said

before in answer to Your Honour Justice McHugh -

Your Honour asked me what might have been done, I

think, and I should have referred also to some

other allegations in the statement of claim, for

example, paragraph 8(i):

A failure to insist that potentially hazardous

foodstuffs such as, for example, bananas, were

not brought onto the premises -

and other matters of that kind.

Your Honours, so far as lighting was

concerned, our learned friend said in submissions

there was lighting in every row. Well, I think

that is probably right but the lighting was - there

were not two lights in every row. There was

alternate lighting on each side. That appears at

page 17 and page 22.

Your Honours, in relation to the question

whether this is an appropriate vehicle to raise

Calin(3) 19 6/8/90

issues of the consequences of counsel's failure to
take a point, in our submission, Your Honours, this

case raises the issue starkly and is an appropriate

vehicle for that purpose. And, Your Honours, may I

conclude by saying, what possible tactical

advantage could there have been in not requiring

the higher standard to be put to the jury?

MASON CJ: Yes, thank you, Mr Jackson. The Court will take

a short adjournment in order to consider the course

it will take in this matter.

AT 4.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.50 PM:

MASON CJ: There will be a grant of special leave in this

case.

AT 4.50 PM THE MATTER WAS ADJOURNED SINE DIE

Calin(3) 20 6/8/90