Calin v The Greater Union Organisation Pty Ltd

[1991] HCATrans 56

_.

".l, AOSTll.U.lA"o.!"

-~»~~--~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S96 of 1990

B e t w e e n -

GHEORGHITA CALIN

Appellant

and

THE GREATER UNION ORGANISATION

PTY LTD

Respondent

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

McHUGH J

Calin(4) 1 1/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 MARCH 1991, AT 10.19 AM

Copyright in the High Court of Australia

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

my learned friend, MR J.L.B. ALLSOP, for the

appellant. (instructed by M. Richardson, Director,

Legal Aid Commission of New South Wales)

MR D.F. ROFE, QC: If the Court pleases, I appear with my

learned friends, MR B.C. LYNCH and MR B. HULL for

the respondent. (instructed by Malcolm Johns & Co)

MASON CJ: Yes. Mr Jackson.

MR JACKSON:  Your Honours may have been given a copy of our

outline of submissions.

MASON CJ: Yes.

MR JACKSON:  When Your Honours are ready I will proceed.

MASON CJ: Yes.

MR JACKSON:  Your Honours, as to the somewhat intimidating

last sentence of the outline of submissions, may I

say that we would propose to give Your Honours a

document which contains the various references to

the evidence. Your Honours, this is a case where

it is submitted that the appellant is entitled to a

new trial and Your Honours, the events giving rise

to that entitlement occurred, in our submission,

both at the trial, on the one hand, and at the

hearing of the appeal, on the other, and may I move

immediately to the relevant event which occurred at

the trial.

Your Honours, that was what, in our submission, was His Honour's misdirection as to the

standard of care to be applied, but the issue is

not as simple as that, of course, because it

carries with it the fact that there was no request

for redirections at the trial on behalf of the

appellant and the point was not taken specifically,

at least in the Court of Appeal. Your Honours, we shall be submitting, however,	that it is a case where it is appropriate to permit
the point to be now taken notwithstanding the fact
that it was not taken below. May I deal with the
matter in two stages: first, dealing with the question of what actually occurred at the trial itself; and, secondly, moving to the question
whether it is appropriate notwithstanding the
failure to bring the judge's attention to the misdirection for the point yet to be raised on
appeal.

Your Honours, could I go very briefly to the

facts: the appellant was an entrant into a

theatre, a cinema, pursuant to a contract. The

Calin(4) 2 1/3/91

facts are summarized in the reasons for judgment of the President in the Court of Appeal in volume 2 at

page 435, commencing at line 14 and going through

to page 436, line 22.

Your Honours will see from that passage that

the appellant attended the theatre at about 5.20 in

the afternoon in June. The ticket was one, as

Your Honours will see at the bottom of page 435, purchased by her son and from that they entered

into the theatre. Your Honours, could I say, to

the extent to which it may perhaps be material,

could I indicate to Your Honours where the evidence

is to be seen concerning the purchase of the

tickets and it comes from the evidence of three

witnesses: the appellant's husband and her son, on

our side of the case, and, on the other side, from

the cashier.

So far as the husband's evidence is concerned,

it appears at page 12, line 25, through to page 13,

line 8, and at page 18, lines 6 to 18. So far as

the son is concerned, it appears at page 52,

lines 1 to 10, and page 55, lines 6 to 13. And so

far as the cashier is concerned it appears at page

277, line 34, through to page 278, line 20.

Your Honours, if I could move on from that,

the standard of care applicable in the case of a

contractual entrant, in our submission, remains

that determined by the Court in Watson v George,

(1953) 89 CLR 409, namely, that there is an implied

warranty that the premises are as safe for the

purpose as reasonable care and skill on the part of

anyone can make them.

I will take Your Honours to the passages

setting out that formulation in a moment. But the

formulation is essentially one which derives from

some observations of Mr Justice McCardie in

Maclenan v Segar. And, may I take Your Honours to

the most material passages in Watson v George,

commencing at page 415. Now, in the judgment of

Acting Chief Justice Williams, His Honour at

page 414 commences to refer, towards the bottom of

the page, to Key v Commissioner for Railways, and

refers, at the top of page 415, about three lines

down, to an observation that:

"if the occupier of premises agrees for reward

to allow a person to enter his premises for

some purpose, he impliedly warrants that the

premises are as safe for the purpose as the

exercise of reasonable care can make them;

and an action for negligence -

and so on. Then His Honour proceeds to say:

Calin(4) 3 1/3/91

A glance at some of the leading English cases is sufficient to show that the law was

correctly summarized by His Honour in these

passages. A -

leading -

case in which many of them are discussed is

Maclenan v Segar.

Then, Your Honours, if one goes over to the next

page - page 416 - about the middle of the page,

Your Honours will see, when he is discussing the

cases to which he is referring, that he says:

In the same case Greer L.J. cited the

following passages from Maclenan v Segar -

and Your Honours will then see the passage set out.

Could I refer Your Honours also to page 418,

the judgment of Justice Fullagar, at the bottom of

the page where he says:

Apart from contractual relations (Maclenan v

Segar) -

and then, Your Honours, at page 420, His Honour

refers, a little before half-way down the page, to

the position of contractual entrance and says:

The most important -

cases -

are the two well known cases of Francis v

Cockrell and Maclenan v Segar.

And then, Your Honours, at page 421, about half-way

down the page, referring to some observations of

Justice Montague Smith he quotes the obligation,

Your Honours, about half-way down the page:

that the building was reasonably fit for the

use for which it was let, so far as the

exercise of reasonable care and skill could

make it so.

And, Your Honours, at page 424, Your Honours will

see in the passage commencing about half-way down
the page a quotation from Francis v Cockrell and

then His Honour saying at the bottom of the page:

The above statement of the rule must, I

think, be accepted as a correct statement.

Calin(4) 4 1/3/91

And, Your Honours,	I omitted to note that he is
also referring, in	that case in that passage, to
Maclenan v Segar.	Your Honours, Mr Justice Kitto
agreed.

Your Honours, perhaps I do not need to say any

more about the case, but that principle - if I can

just pause at that point - seems to be one that the

case, at least, appears to have assumed and, in our

submission, decided, was the test to be applied.

Your Honours, could I give two other

references in the Court where the test has been

dealt with. One is, Australian Racing Drivers Club

Ltd v Metcalf, (1960) 106 CLR 177. Your Honours, I

will not take Your Honours to the case but I simply

want to indicate that it was a case where the

question was one relating to whether the test had
or had not been satisfied and there was no

suggestion in the case that the test was not the

correct test. That appears, Your Honours,

relevantly at pages 182 to 184.

Could I refer Your Honours also to Voli v

Inglewood Shire Council, (1963) 110 CLR 74, in the

leading judgment in the case, that of

Justice Windeyer, at pages 92 and 93.

Your Honours, in that case, at page 93, His Honour

specifically treats the position of the entrant for

whom someone else buys the ticket as being the same

as that of the ticket buyer.

Your Honours, Voli v Inglewood Shire Council,

I think, was omitted from our list but I have copies of it here for Your Honours - but

Your Honours may have it already, I gather, from my

friend. Could I refer Your Honours in relation to

the equation of the position of the person for whom

the ticket was bought to that of the position of

the ticket buyer at the top of page 93 going to the
top of page 94.	Your Honours will see,

particularly if one goes to about the sixth line on
page 93, that His Honour observes:

For, although in Francis v Cockrell the plaintiff had himself paid to enter the

grand-stand, would it have made any difference

if a friend had bought his ticket for him?

And, Your Honours, His Honour proceeds along in the same vein.

Your Honours, so far as the decisions of the

Court concerning the duties of occupiers were
concerned, the decisions culminating in Australian

Safeway Stores Pty Ltd v Zaluzna,

(1987) 162 CLR 479, those decisions have not

Calin(4) 1/3/91

expressly or, with respect, impliedly overruled

Watson v George in relation to contractual entrants

but, Your Honours, the point, to put it shortly,

was never discussed.

Your Honours, if I could give Your Honours an

example of a decision of a court of a state,
accepting that the position in relation to

contractual entrants remains as it was in Watson v

George. May I take Your Honours to a decision of

the Court of Appeal in New South Wales, to which

Your Honour Justice McHugh was a party, in

Morawski v State Rail Authority of New South Wales/
(1988) 14 NSWLR 361, and there are two relevant

references. The first, Your Honours, is from the judgment of Mr Justice Clarke, with whose reasons

for judgment Your Honour Justice McHugh agreed, and

at page 381, between letters E and F, His Honour

said:

The ground of appeal which was raised in the notice of appeal asserts that the trial

judge was in error when he declined to give a

direction that the appellant owed to the

respondent the contractual duty of care. This

appears, in my opinion, to be correct.

His Honour then sets out the relevant passage from
Maclenan v Segar, and, Your Honours, may I refer

you to the passage continuing on from there to the bottom of the page and also over to the top of the

next page. Could I go, Your Honours, also to the

reasons for judgment of the President, which

Your Honours will see at page 377 under the

heading:

Duty owed to an entrant pursuant to contract:

As Your Honours will see at the commencement of that passage, His Honour agrees with what

Mr Justice Clarke said and His Honour goes on to

deal more fully with the topic on pages 378

and 379.

BRENNAN J: Is there any consideration given to the

distinction as would be applicable to the
circumstances of this case between the Zaluzna duty

of care - - -

MR JACKSON:  I am sorry, I just did not hear the last thing

Your Honour said.

BRENNAN J: Is there any consideration given in Morawski's

case to the distinction between the Zaluzna duty of

care and the contractual duty of care?

Calin(4) 6 1/3/91

MR JACKSON: In one respect, Your Honour, and one sees it, I

think, under the heading in the President's reasons

for judgment,"Justification for a higher duty to

contractual entrants", and His Honour discusses the

factors which would militate against an alteration

of the Watson v George principle, if the result of
the alteration of the Watson v George principle was

to reduce, in effect, Your Honour, - I put it in

exactly - the content of the standard. Now,

Your Honour, what I mean by that is that it would

be possible, of course, to say that in one sense

what is said in Watson v George is no more than an

exemplification of a general duty of care which is

owed to persons who enter premises and one could

say, I suppose, that the fact of entry, pursuant to

a contract, is a feature which is always material.

If one leaves aside the peculiarities that relate to the cause of action by reason of it being

contractual, rather than tortious - and,

Your Honour, there are a number of matters, often

of less importance than one might think, but they
do exist, but if one left aside those matters, the

real question is, what would the content of the

duty be. Now, Your Honour, unless the Court were

to take the view that Watson v George were to be

overruled, the present situation would be that one

has a particular statement of the rule in that case

and Your Honour, what I was going to say from that

was that in relation to Your Honour was that it

perhaps would not matter whether one treated a

general duty as being applicable or not, provided

that the way in which the general duty applied to
contractual entrance was that the standard

applicable to them was one akin to that presently

provided for by the approach taken in Watson v

George.

BRENNAN J: But if one has no question about contributory

negligence to be concerned about, nor any question

as to the purpose for which the entry is made, so

that it is clear that the entry is being made for a

purpose that is common to both parties, is there

any duty of care on the occupier to have done more

than to have used reasonable care to make the

premises as safe as reasonable care can make them?

MR JACKSON:  Your Honours, put that way, the answer I think

is no but, Your Honour, it is a question of what is

meant by reasonable care and the reasonable care by

whom? The way in which Your Honour put it to me is

a way which encapsulates the notion but, if I can

say so with respect, by the brevity in which it is

put does not give the notion its full value.

What I mean by that, Your Honours, is that if

one looks at the way in which, for ex·ample -

Calin(4) 7 1/3/91

perhaps I could indicate, Your Honour, Morawaki, at
page 381, where the Maclenan v Segar proposition is

set out. If one looks at that, the question to be

posed under the present test is not quite whether

the occupier himself used reasonable care. The

question is whether the premises were as safe as

reasonable care and skill on the part of anyone

might make them.

That, Your Honour, has a number of

consequences but the one of immediate relevance is

this: it may well be that the particular acts or

omissions or conduct generally which might or might

not be reasonable conduct fall within a band, as it

were. Within that band, if one were looking at a

different type of case, it might be possible to

say, "Well, reasonable people might have done one

of three things of varying degrees of

effectiveness." It was not unreasonable, meaning

by that that it was reasonable, to do the one of

least effectiveness.

The different, fundamentally, in our submission, between the application of such a test

on the one hand, and the application of the

Maclenan v Segar test is that one would not look at

the lesser, one would look at the higher. And,

Your Honour, that, to put it shortly, is what one

gets for paying one's money to get in.

BRENNAN J: Perhaps at some time you might address two

questions. One is: was the question that was

submitted to the jury the correct question or

should it have been some other question? And the

second, you might articulate the direction that

should have been given in comparison with that

which was given.

MR JACKSON:  Your Honour, I do intend - and perhaps it is

next but in just a moment to go to what was said to

the jury and, Your Honour, if I could answer the

second part of what Your Honour put to me

immediately, what was not put to the jury and what

should have been put to the jury was that they

should have been directed in terms of Maclenan v
Segar and that is that the question they should

have been asked so far as a direction was concerned

was that they should have been directed that the

duty on the respondent was a duty to make the

premises as safe for the purposes of patrons at a

cinema as reasonable care and skill on the part of

anyone could make them.

Your Honour, could I go then to the directions

that were given to the jury.	Your Honours will see
those in volume 2.	They appear in three passages

in His Honour's summing up to the jury. Perhaps I

Calin(4) 1/3/91

might introduce it by saying that, in effect, they

amount to a direction to the jury along the general

duty of care lines. They commence at page 303, in

line 13, going through to the bottom of the page.

His Honour is speaking there about negligence

generally and His Honour, of course, does not get

to, because it is not that point in his summing up,

the precise standard.

The second passage, Your Honours, is at

page 312 lines 12 to 17, again a passage which is

in a sense introductory. He refers to the

existence of the duty of care but its content has

not yet been the subject of a direction. The third

and last passage commences at page 304 line 19, it

goes through to page 315 line 18. Now,

Your Honours will see in the part which appears on

page 314 that His Honour refers to the fact that

the duty springs from the fact that the plaintiff

was a patron. At the top of the next page the duty

is expressed as being:

a duty to take reasonable care. The defendant

is not the insurer of everyone who comes in.

His Honour refers to the fact that what is

reasonable will vary with the circumstances of the

plaintiff's entry upon the premises; here the
plaintiff was a lawful entrant, there was

commercial benefit involved and that he says:

The measure of the discharge of the duty is

what a reasonable man would, in the

circumstances do, by way of responsibility to
foreseeable risk of injury to such a patron.

So the duty may be very shortly and very

simply described as this;

and His Honour then sets out the duty in terms of

the general, but lower, duty of care.	Now,
Your Honours, in our submission, it is apparent

that the directions which His Honour gave to the

jury were directions which related to a lesser

standard than those which were applicable.

Your Honours, the issue of the appellant being a

contractual entrant was one which, of course, was

raised on the pleadings; it appears in the

statement of claim, paragraph 4 which is at page 1

of the record. It is alleged that she:

was a contractual entrant ..... and the

Defendant agreed for reward to allow

her on the -

premises for the purpose of watching a film.

Calin(4) 9 1/3/91

And then the implied term is pleaded in paragraph 5

and Your Honours will see in the defence which

appears at page 8 that by paragraphs 2 and 3 those

allegations are denied or not admitted.

Now, Your Honours, I come then to the second

aspect of this part of the case and that is the

fact that no request for redirections was made.

Your Honours, it is clear that no request for

redirections was made and I hasten to say also
there was nothing to stop an application for

redirections being made.

TOOHEY J:  Mr Jackson, before you go to that aspect, I

appreciate the difference in language between the

Watson v George test and what was said to the jury, but what is said to flow from that?

MR JACKSON: Your Honour, what flows from it is this: the

plaintiff's case was that she was a person who

entered into a theatre - I am sorry, Your Honour,

may I start again.	She went into a theatre as a
paying patron.	Now, that had, in a sense, two
consequences.	One was that there was a duty owed

to her contractually because of the contract to

allow her to enter and that gave rise to a certain

standard of care - to put it slightly loosely - to

which she was entitled. She also, as a person

entering upon premises, had owed to her - if I

could call it - the general tortious duty of care.

Now, Your Honour, so far as her case was

concerned, her case - so far as the first of those

elements is involved - was that by reason of the

circumstances under which she had entered the
content of the standard of care was of a particular

kind. That was an important part of her case

because it raised, we would submit, a higher

standard which had to be satisfied by the

defendant, as it were, in order to - I am sorry, I

am putting it around the wrong way but I just

wanted to convey that the obligation of the

defendant was higher in content so that it was

easier for the plaintiff to succeed, one would

think, against it on the contractual basis.

TOOHEY J:  Was that because of the notion of warranty that

is contained in the Watson v George test or the reference to "on the part of anyone" or both or

perhaps something else as well?

MR JACKSON: It is really the latter, Your Honour; it is

the content of the obligation. Your Honour, I

suppose it perhaps does not matter very much

whether one calls it the content of the warranty or

the content of the duty, but it is a question of

what has to be satisfied, to look at it from a

Calin(4) 10 1/3/91

defendant's point of view, in order not to be

liable and, on the other hand, and the more exact

way to do it, to say that the plaintiff has to show

in effect, less, as it were, to succeed on the

basis of the contractual duty.

BRENNAN J:  Mr Jackson, you cannot impugn a summing up by

speaking in generalities, can you? You must be

able to articulate the error that appears in the

words used by the trial judge and, in the case of a

suggested absence of a direction, articulate the

direction which should have been given.

Your Honour, I am sorry. Perhaps I should say

that what the judge should have said in the

passages where he was dealing with the duty was to

have directed the jury that in the circumstances of the plaintiff's entry into the cinema that the jury

were to consider whether the premises were as safe

for patrons as reasonable skill and care on the

part of anyone could make them. He should have

told the jury that as a matter of law that that

represented the obligation of the defendant and
that they had to consider the evidence to see

whether that standard was or was not met.

BRENNAN J:  What is the difference between that and what the

judge said?

MR JACKSON:  Because, Your Honour, what he did not tell them

was that the test was not whether it was just a

question of reasonable care and skill on the part

of the defendant, but that the defendant's

obligation was to make the premises as safe for

persons as reasonable skill and care on anyone's

part could do it.

TOOHEY J:  I do not quite understand the reference to "on

the part of anyone" where the defendant is an

incorporated body and clearly has to act through

agents or servants.

MR JACKSON:  Your Honour, that part of it really has two

aspects. One aspect, of course, is that one can

say a person cannot satisfy the test by saying, "I

couldn't do it myself" when, if there were, in

fact, persons who could have been obtained to do

it, if one could have got contractors, or something

like that, to do it. That is one aspect of it.

The other aspect of it is what I was putting

before in our submission, and that isthat if one is

talking about reasonable skill and care, one is

really talking about a range of possible conduct in

most cases and, if one is talking about the range

of possible conduct that is reasonable, it is at

Calin(4) 11 1/3/91

the higher end of the range that the test requires

to be satisfied.

BRENNAN J:	On the facts of this case, what is the difference? The problem is that there is something
on the entrant's passageway in a darkened theatre
and the issue that was joined was whether it was an
absence of reasonable care not to have detected and
to have removed that substance.  Now what, in that
set of circumstances, is the difference between the
two circumstances?
MR JACKSON:	The difference, Your Honour, is that one might

be able to say that, as presumably the jury said in

the particular case, reasonable conduct would

involve doing a number of things. One would be to

say that it was sufficient to pick up large items

and kick items of paper underneath the seats in the

theatre after each performance and have the

premises cleaned at night. On the other hand,

another view of reasonable conduct might well be

that that was not sufficient and that something

further should have been done, namely, for example,

not to allow items of food to be taken into the

theatre.

Now, another view might have been that within the band of reasonable conduct would be that there

needed to be more lighting, or that an usherette,

or usher, take the persons to their seats and not

let them find their seats willy-nilly. Now,

Your Honour, the point I am seeking to make is that

one might reasonably - if I could use that

expression - take the view that a reasonable person
might take the lesser of those measures; another
reasonable person might take all the measures or
the higher of them, but that the standard that was

applicable to the defendant, because the plaintiff

was a contractual entrant, was that the obligation

was to make the premises as safe as reasonable

skill and care on the part of anyone, namely the

higher measures, as it were, could make them.

Your Honours, that is essentially the difference.

Now, Your Honours, it seems apparent that the

point was not one which was taken on the hearing of
the appeal. That appears from page 437, lines 6

to 11. Your Honours, the case is not one where it

is sought to adduce further evidence.

Your Honours, it is not a case where, if the point

had been taken at the appropriate time below,

further evidence might have been called. It is

clear, it is submitted, that there was power in the

Court of Appeal to permit the point to be raised on

appeal notwithstanding the failure to seek further

directions from the jury.

Calin(4) 12 1/3/91

Now, Your Honours, could I, in that regard, go

to two sources? One is the relevant New South

Wales provision of the rules, which is to be found in Part 51, rule 16. I am not sure if Your Honours have that but if you do not may I hand to the Court

copies of it?

MASON CJ:  Yes.

MR JACKSON: It says, in subrule (1), that:

(1)	The Court of Appeal shall not order a new
trial -

(a) on the ground of misdirection;

unless it appears to the Court of Appeal that

some substantial wrong or miscarriage has been

thereby occasioned.

Your Honours, that seems, if I could just say this

for the moment before coming to any cases on it, to

give the court a discretion. Now, Your Honours,

the general principle, in our submission, is that

the failure of counsel to raise a contention of

this kind at the trial, by way of seeking a

redirection, is not fatal, but it is of course an

important point in deciding whether or not to grant

a new trial.

Your Honours, in that regard, may I go first

to Burston v Melbourne & Metropolitan Tramways

Board, (1948) 78 CLR 143.

TOOHEY J:  Mr Jackson, Part 51 rule 16 is expressed in

negative terms. Is there a rule which positively

empowers the court to grant a new trial, and if so,

in particular circumstances?

MR JACKSON:	Your Honour -
McHUGH J: Section 75 of the Supreme Court Act -

MR JACKSON:  Yes, thank you, Your Honour. May I give

Your Honour the text of it a little later? The

rule to which I was referring was one which

indicates what generally speaking seems to me the

content of the test, if I can put it that way, and

I was going to take Your Honours to some

observations of members of the Court in Burston's

case. Your Honours, the first reference in that

regard is to page 155 and in the concluding part in

the reasons for judgment of the Chief Justice

His Honour says in about the fourth line that:

sufficient directions were given-.

Calin(4) 13 1/3/91

But he goes on to express a view:

that it is an unsatisfactory ground for

granting a new trial that counsel did not

appreciate the effect of the summing up at the

time, and that he preferred to abstain from

emphasizing a point which, ..... is represented

to be of outstanding importance. However, it

is not necessary, ..... to determine whether,

whenever there is a failure ..... it is a

ground.

Now, Your Honour, that is one approach to the

matter. At page 158 Justice Starke, commencing

about two-thirds of the way down the page, referred

to some observations of the Supreme Court of

Victoria in Holford v The Melbourne Tramway and

Omnibus Co. Ltd. Your Honour, I shall not read out

that passage, but could I go to the bottom of that

page and His Honour says:

The rule itself is not inflexible and its application must depend upon the circumstances

of particular cases. It is a guide to the
exercise of the court's discretion in granting

or refusing new trials, and, so I understood,

I entirely assent to it.

And then at page 167, Justice Dixon, in the first

new paragraph on page 167, says, in effect, that

the - I would refer Your Honours to the whole of

that paragraph:

The court's jurisdiction ..... depends upon the demands of justice.

but, he goes on to say:

in the absence of a specific enactment or

rule -

what is done or omitted to be done: 

affects the exercise of discretion but does

not amount always to a positive bar. There is

not a rigid rule of law or practice.

Your Honours, the issue was referred to also

by the Court in General Motors-Holden's Pty Ltd

v Moularas, (1964) 111 CLR 234. Your Honours, the

relevant part of the facts appears at page 240,

commencing about point 3 going through to point 8,

and what happened in the case was there had been a

summing up in relation to damages which said

nothing about the imponderable, such as

unemployment, sickness or so on, and ~he issue was

raised but when counsel was asked did he want a

Calin(4) 14 1/3/91

redirection spoke somewhat Delphicly and in the

result no redirection was given. But it seems -

the construction of what he did appears at page 242

in the paragraph commencing in the middle of the

page. The Chief Justice said:

counsel for the defendant did raise the first mentioned matter but deliberately declined to ask the trial judge to recall or redirect the jury on the point.

And Your Honours will see in the last paragraph on page 242 through to the end of the first new

paragraph on page 243 the Chief Justice expresses

the view that there is no:

hard and fast rule, because the court retains

a general discretion and is able in a proper
case in the interests of justice to relax the

requirement.

Your Honours, at page 245, Justice Taylor, the

third line on that page, says:

It is true, no doubt, that a new trial may be

ordered in spite of the fact that the relevant

objection was not taken at the trial -

and refers to the fact that -

the interests of justice may require -

it in an appropriate case. Your Honours, at

page 257 Justice Menzies, in the first paragraph on

the page, said that:

reference has been made to what occurred -

and then he refers to the observation of

Mr Justice Cussen in Holford's case and,

Your Honours, at page 263 Justice Owen, commencing

particular circumstances would could not complain	about half-way down the page, thought that in the
about the -

substantial wrong or miscarriage.

Now, Your Honours, those observations, and I

will come to some other more recent cases in just a
moment, but those cases recognized the existence of

the power to do so and they placed different

emphases, from time to time, in the light of the

particular facts on the way in which the power

should be exercised.

Calin(4) 15 1/3/91

Your Honour, the approach to be taken to the

application of Part 51 rule 16 has been discussed

in New South Wales in a number of cases. Could I

give Your Honours first the reference to Burchett v

Kane, (1980) 2 NSWLR 266. It is a case which is

noted. I did not propose to go to it because the

reasons for judgment of members of the court are

quite lengthy but are more shortly summarized in a

later case. What I did propose to do was to give

to Your Honours the references to the relevant

parts of the decision. They are, in the judgment

of Mr Justice Moffitt - and it is a decision where
the paragraphs are numbered and could I give

Your Honours the paragraph numbers - commencing at page 268, paragraph 12; going to page 269, paragraph 15; in the judgment of

Mr Justice Samuels, commencing at page 271, paragraph 27, going through to page 274,

paragraph 41; and in the judgment of

Mr Justice Mahoney, commencing at page 275,

paragraph 57, going through to page 279,

paragraph 73.

Your Honours, could I move from that case to

Bright v Sampson - to put it shortly - a further

decision of the Court of Appeal,

(1985) 1 NSWLR 346. In that case Your Honours will

see three passages in which the approach to be

taken in cases where a point has not been taken

below is discussed. Your Honours will see the

first of those at page 350 in the judgment of the

President, in the paragraph commencing between A

and B, and His Honour refers to the fact - and this

is the fourth line of the paragraph:

Although it is convenient and conducive to

finality of litigation to limit the parties to

matters that have been raised by their legal

representatives at the trial, such an approach

makes a large assumption about the conduct of

litigation and the capacity of legal

representatives.

And he goes on to say:

This assumption must succumb to the demands of

justice.

Now, Your Honours, the passage goes on to the end

of that paragraph. At page 360, His Honour

Mr Justice Samuels, in the paragraph commencing between letters C and D, refers to the several

reasons for judgment in Burchett v Kane. He

refers, immediately about that, to the rule and

then goes on to say:

Calin(4) 16 1/3/91

In Burchett v Kane different views were

expressed -

The President -

was of the opinion that there could not be a

wrong or miscarriage where counsel for the

appellant had participated in the judge's

error -

and then His Honour refers to his own reasons for

judgment and he summarizes the view in the next

paragraph. Your Honours, at page 368, in the

judgment of Mr Justice Mahoney, under the heading

"New Trial", going over to the next page,

His Honour expresses and applies, in effect, the

view that the court has a discretion.

Now, Your Honours, the view that the court has

a discretion may be seen in two further decisions in

the Court of Appeal. One is Eggins v Brooms Head

Bowling and Recreational Club Ltd,

(1986) 5 NSWLR 521. The leading judgment in the

case, that of Your Honour Justice McHugh - the point

that was being dealt with by the court was the

effect of the change in law, in effect, in relation

to occupiers. And Your Honour, at the top of

page 524, took issue with an observation which had

been made by Mr Justice Kirby in an earlier case

referred to at the bottom of the preceding page and

then commented about the inaccuracy of a headnote.

It was in that context that Your Honour made the

observations which appear between letters C and G on
page 524.

Your Honours, it seems apparent that what Your Honour said there was not intended to convey

the notion that in no circumstances could there be

a new trial based on the error of counsel and that

that is so appears from the last of those decisions

to which I wish to refer and that is to come back
to a case to which I referred earlier, Morawski v

State Rail Authority of New South Wales,

(1988) 14 NSWLR 374. First, at page 381, in the

judgment of Mr Justice Clarke with which

Your Honour Justice McHugh agreed, the position is

summarized at the top of page 381:

It is well-established that there is an

onus upon counsel to seek in clear terms any

redirection ..... 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.

Calin(4) 17 1/3/91

Your Honours, at page 376 Mr Justice Kirby

deals with, in effect, the same topic.	The
question ultimately would become, in our

submission, "Was there a substantial wrong or

miscarriage?", and our submission is that the

appellant's case was never put to the jury on the

basis most favourable to her. The real issue, so

far as she was concerned, has never been tried.

MASON CJ:  Mr Jackson, on that point, can I refer you to

pages 315 and 316, commencing at line 19 on

page 315 and going over half-way down on page 316,

where the trial judge directed the jury on the duty

and the breach of the duty. On the contractual

duty of care, how could you have got a more

favourable direction than the direction that was

given to the jury there?

MR JACKSON:	Your Honour, what should have been said to the jury was something in the terms I indicated
earlier, that is to adopt, in effect, the wording
in Maclenan v Segar, so that the jury's mind was
directed to the application to the facts of the
question whether reasonable care on the part of
anyone might have prevented it.  Your Honour, that
is the essential aspect of it. It is true to say
that the judge referred to the particular matters but the vice of it, in our submission, was that the jury was not directed in terms which would cast
their minds on to that issue.
DEANE J:	When you say "reasonable care on the part of

anyone", does that mean reasonable care on the part

of the person who threw the banana skin on the

floor?

MR JACKSON:  No, I did not mean that, Your Honour. On the

part of anyone in the position of the - -

DEANE J: Under the control of the - - -

MR JACKSON:  Yes. Reasonable care and skill on the part of

anyone in the position of a person operating a

cinema. Your Honour, I would include within that,

of course, care and skill in control of the

person's servants or agents, but that is a

different thing.

DEANE J:  Mr Jackson, has there been any discussion as to

how rule 16(1) operates in a case where the Court

of Appeal was not asked to find that there was a

substantial wrong or miscarriage and it then comes

up in a subsequent court?

MR JACKSON:  Your Honour, I do not really quite know of a

case like this. Your Honour, perhaps if I could

Calin(4) 18 1/3/91

put it this way. It is unusual to see a point not

having been taken twice. One might well have - - -

DEANE J: There are problems about that but I was not asking

you about that. What I was wondering was whether,

where that is so, this Court is entitled to say,

"Well if the Court of Appeal had been asked, it

should have held, but it wasn't asked, therefore,

we'll treat that as either not applying to us or as

enabling us to embark on that inquiry." It is

probably the latter, I suppose.

MR JACKSON:	The issue arises not just in this context, of course, but it arises whenever a point is first
taken in this Court, and that is so even if one is
simply talking about a point of law on admitted
facts, for example, whether a particular
provision - it is not a very good example, but if I could give the example of a simple question of law
involving no new fact.  Now, Your Honour, if such a
point is, as it is capable of being, allowed to be
taken here, for the first time, the same issue
arises, with respect, because the issue has not
been dealt with by the court below and the
hypothesis lying behind it is that if that issue
had been raised in the court below, the court below
would have arrived at a different conclusion.

Now, what that means, Your Honour, is that the

error of the Court of Appeal is not an error in the sense that the Court dealt incorrectly with a point

which had been raised before it; it is really, in a

sense, error of law that the court is dealing with

and it is simply one of the areas. Your Honours,

the same issue does seem to arise, whenever one

deals with a point that first arises here.

DEANE J:	Good, thank you.
BRENNAN J:	Mr Jackson, would your objection to the summing

up be met - and I am looking at page 315, line 11,

for example, would it have been sufficient to say:

The measure of the discharge of the duty is

what -

any -

reasonable man would, in the circumstances?

MR JACKSON:  No, Your Honour. It may in fact depend on

precisely how that was said, actually, but it would

not quite be met, in our submission, because that

may convey the notion that one is looking at -

well, Your Honour, perhaps the answer is, "Yes", it
may have met it; I do not know that it would be the

preferred way of putting from our point of view.

Calin(4) 19 1/3/91

We would submit that the better way to put it would be in the classical terms.

BRENNAN J: But if the only difference between what was said

and what would have sufficed is "a" and "any", it

is very difficult to see that there was any

misdirection, is it not?

MR JACKSON: Well, with respect, Your Honour, no, because if

one looks at what His Honour said, it really did

not convey anything that was appropriate to

describe the content of the test. Now, it is

possible that by framing it in other ways, not

using the words of the Maclenan v Segar test, one

could arrive at something which is the same in
content if one were to look at it and then parse

and analyse it. But, it is not, Your Honour, with

respect, a question of just saying, "This is what

His Honour said it could have been, it might have satisfied the test if one altered a few words", and

one then has to look to see whether, if one altered

those few words that would satisfy the test, and

one would then be really saying - I say so with

respect, "Near enough is good enough".

What one looks at is what happened. What

happened was a direction which, if our submissions

be correct, did not convey the notion, and one is

not really looking to see the precise alteration to

those words that might have done it, what one is

looking to see what direction should have been

given, and what should have been given is the

classical direction, we would submit.

Now, Your Honours, the point I was dealing

with was the question of whether there was or was
not a substantial wrong or miscarriage - I had been
submitting, Your Honours, that the appellant's case
was never put to the jury on the basis most favour
to her, and the real issue had never been tried.

No good reason appears why the judge's error was	not corrected and no advantage, tactical or
otherwise, in our submission, could have been
gained by not doing so. It appears to have been an
oversight.

Your Honours, the jury may well have thought

that the appellant's case failed because she failed

to establish the negligence on the lower test. If

they had to - - -

McHUGH J:  You keep saying, "lower test", but that is the

problem I have; as to whether in the context of

this case there is any difference between the

Maclenan v Segar test, and the Zaluzna test. After

all, the Maclenan v Segar tests really derives from

cases like Francis v Cockrell where there is no

Calin(4) 20 1/3/91

negligence on the part of the occupier of the

grandstand. The negligence was due to a workman

who had negligently erected it. It was in that

situation that it was said that there was a duty of

care owed to make the premises as reasonably safe

as any person can make them. But there is no

question of any independent contractors in this

particular case - - -

MR JACKSON: Servants, of course, Your Honour.

McHUGH J: Yes, servants, yes. It is difficult to see any

substantial difference between what is put at

pages 315 and 316 in the summing up, and the

Maclenan v Segar test, properly understood, once you abstract from it the independent contractor

content.

MR JACKSON: Well, Your Honour, if one leaves that to one

side, what one has is a situation where - if the

Maclenan v Segar test was being put to the jury,

what the jury would be considering are things such

as those to which I adverted earlier - and

Your Honour, I indicated the content of the band,

as it were - but I wonder if I could just say one

other thing, and that is this: the jury might well

think that it would be reasonable to have a number

of different approaches to, for example, the
question of the extent of the examination of the

theatre by the usherette who gave evidence. Now, a

jury might think it was reasonable enough for her

to have a quick whip-around, as it were, but on the

other hand, they might think that within the band of reasonableness it would require more than that

and that she would have to do more actual cleaning

out.

Well now, within that band, Your Honour, that is the kind of thing to which the jury's

attention - I am sorry, both those things being in

the band of reasonableness - I am sorry to have

created the expression - but within that,

Your Honour, the jury might well think that, if one

is looking at it from the point of view of it being as safe for patrons as reasonable skill and care on

anyone's part could do it, you would do more than

the particular owner did. Your Honour, I do not

know that I can take it any further.

McHUGH J:  I follow how you are putting it. In effect, you

are saying that the Maclenan v Segar test requires
the highest standard of care that can reasonably be

afforded?

MR JACKSON:  Not an insurer, of course, but they are our -

Calin(4) 21 1/3/91

McHUGH J: Whereas the Zaluzna test operates within a band

of choice and the jury might say, "Well, he could

have done that, he could have done that but it was

reasonable for him to have done that."

MR JACKSON:	Yes.
TOOHEY J:	You would not have been content with simply an

enunciation of the formula, would you?

MR JACKSON:	I am sorry, Your Honour.
TOOHEY J:	You would not have been content if the judge had

simply echoes the Watson v George formula, he would have had to elaborate on it in some way and once he

did you then get back to the content of the

direction, do you not?

MR JACKSON:  Your Honour, could I say two things in response

to that? If he had given a direction in the simple
terms of indicating the test and had then proceeded

to deal with the facts, having stated the test, the
position may well have been that we would have

preferred, perhaps, a fuller direction but the

direction would be bad as a matter of law. The

second thing is really to elaborate upon that a

little and that is to say that it would be possible

to give a fuller direction but so far as the

fuller - I am saying the obverse, it would have

been strictly unnecessary but we would not have

needed more, Your Honour. Different views might

have been taken by different judges in the summing

up. But once the test was stated and stated in

those terms it would have been sufficient, in our

submission.

McHUGH J:  Can I ask you this: now that Zaluzna has, in

effect, abolished the three categories, why should

the courts continue to apply the Maclenan v Segar

test?	Why should they not all be subsumed under
the - - -

MR JACKSON:  Your Honour, there is a number of reasons, some

of which are adverted to by Mr Justice Kirby in

Morawski's case. The first is the economic matter,

that one pays to get in. That has a number of

consequences, Your Honour. The first consequence

is that the person who conducts the premises and

charges one to enter them is a person who has the

option to charge, bearing in mind economic
circumstances, whatever amount is necessary to
cater for the premises to be in a sufficiently safe

condition for the persons who enter them.

Your Honour, one would think that that person,

rather than the persons who enter, is the person

who has the capacity and the practical incentive to

Calin(4) 22 1/3/91

so effect insurance. It is that person also who

has the practical measures of control over staff
and all those matters in order to ensure that the

standard is met.

McHUGH J: But does that not only mean that in measuring the

content of reasonable care you exact a higher

standard in respect of the paying entrant than you

do in respect of the entrant who would be an

invitee in the old categories or the person who was

a trespassers?

MR JACKSON:  Your Honour, it certainly means that, but it

becomes a question of what the content of it is. Your Honour, as things stand, one does not just

have a statement, for example, under the general

law of tort, that if you enter premises and you pay

to enter them, what you will get is an appropriate

standard having paid for them. What one also gets is the person who conducts the premises, contracts

with one that one will have that standard, in

effect, applied and it is the content of that

standard that matters. Now, Your Honour, most of the time, of course, it does not matter very much

whether one looks at it from the point of view of

contract or the point of view of tort, but there

are differences. For example, there is or may be

perhaps the difference about contributory

negligence; there is the difference in relation to
the measure of damages; expectation loss would be
recoverable in some circumstances and there is or
may be a difference about the time when the cause

of action accrues.

DEANE J: But if there are only those, as it were, technical

differences, do they not militate against implying

a term into a contract? I mean, once you get the

general duty of care applying, the whole basis for

implying some other duty of care as a term of the

contract disappears if one looks at the test for

implying a contractual term.

MR JACKSON: Well, it depends where one starts, Your Honour.

If one starts from the proposition that a party who

conducts some kind of public enterprise invites

people to go on to the premises and they have to

pay to get there, now, Your Honour, there - - -

DEANE J:  You have got to add, in circumstances where he is

under a general duty to take reasonable care to

keep them safe, under the law of negligence.

MR JACKSON:  No, with respect, I do not. I am sorry - I do

not mean to argue with Your Honour.

DEANE J: What, you are excluding the law of negligence duty

of care then?

Calin(4) 23 1/3/91

MR JACKSON: No, Your Honour, what I was seeking to say was

simply this, that if one starts with the

circumstances to which I was adverting, namely that

a person carries on on premises a business and in

the course of that business charges people to come

in to the premises, then, leaving aside for the

moment any question of a general duty, Your Honour,

one would think, bearing in mind the fact that that

person has control of the premises, the fact that

the person going on will not have any such control,

the fact that it is for the business ends for the

person conducting it and so on, Your Honour, it is

not surprising that the law, as it has done for a

long time, with respect, would imply the particular

term which one sees in Maclenan v Segar.

McHUGH J: But that was because the law did not generally

impose a duty of care in relation to an occupier of

premises in respect of those who are entrants on

the premises. It was only on those who came within

certain categories; there had to be an unusual

danger; it had to be a concealed trap if they were

licensees.

MR JACKSON:  Your Honour, it is perhaps a matter of

description.	The law, with respect, did generally
circumstances in which there might be a recovery.	but there were some limitations on the non-contractual entrants, one sees that there is a circumstances where there is a general duty. But,
Your Honours, one asks hypothetically - it is for
many years one of the implied terms of a contract of this kind has been that you get the benefit of the implied warranty - "Why should it be taken
away?" Your Honours, the doors are not being beaten down by persons who say, "This is of some
disadvantage". Your Honour, the position, in our
submission, is simply that such a term is part of a
contract. Your Honours, with respect, I do not
need to say it again, but there really is no reason
to change it.

McHUGH J: But that raises the problem that in Voli

Mr Justice Windeyer thought that who paid the money

or who made the contract did not matter but if you
are going to insist on a contract strictly
so-called perhaps it matters a great deal, and in

this case, arguably, there was no contract between

your client and the theatre because it was the son

who bought the tickets.

MR JACKSON:  Your Honour, I suppose if one were to analyse

it, of course, it depends whether he - he may have

bought them as a gift had given them to them; he

may have bought them as agent, there .is a number of

possibilities. He was the only one who spoke

Calin(4) 1/3/91

English satisfactorily seemed to be the evidence.

But, Your Honour - and it would be right to say

that the evidence does not disclose that he was

acting as agent, to put it shortly, on behalf of

the appellant but having said that, Your Honour, we

would submit, if one is looking at the contractual

entrants, one is not talking just about persons who

are the contracting parties one is talking about

the persons who are entering pursuant to the

contract.

Now, Your Honour, if it be that - and one can

multiple examples that would make it absurd if that
would not so - some referred to by

Mr Justice Windeyer - but if one took, for example, the circumstances where a charity that was a

company limited by guarantee contracted to take all
the seats in a theatre for a charity performance,
then it would seem odd that the persons who go to

it do not have the rights of contractual entrants

rather than the other. It is entry pursuant to the

contract, we would submit, rather than otherwise

and, Your Honour, I do not know that I can take the

point further but that is our submission in

relation to it.

TOOHEY J: 

Mr Jackson, you express the matter in terms of

the applicable proposition of law and I understand
that but in the end the challenge is to the
direction to the jury, is it not? Now, if the

judge had given the jury a direction that was

consistent with Watson v George, the jury had come

and said, "Well, we do not really understand that,
what do you mean by it?", the judge would then

have had to go into some detail and talked about

such things as cleaning arrangements, state of

lighting in the theatre and so on and is not that,

in the end, what he did?

MR JACKSON: Well, Your Honour, he talked about cleaning

arrangements and lighting and so on, of course, but

he did not speak about them in a context where the

jury was being directed to consider those facts in
the light of a particular test. It is possible, of
course, that the jury might have sought further
directions, might not have too, but, Your Honour,
the ultimate vice is that one of the legal tests

that the jury was to apply to the facts was not put

to them.

Your Honours, might I move from that to the

second aspect of the case.

DEANE J: But, that means that on 16(1), you would say that

the failure to put the question of itself

constituted a miscarriage and it was not for us to

Calin(4) 25 1/3/91

speculate about whether the result would have been

the same.

MR JACKSON:  Yes, that is right, Your Honour, because one

just does not know. Your Honour, that involves, of

course, some assumptions in our favour, one of them

being the submission that we have been making that

the standard was a higher standard.

DEANE J:  You do not have to say higher, do you?

MR JACKSON: Different.

DEANE J: Different is the appropriate word.

MR JACKSON:  Your Honour, if it were different but lesser,

my position - Your Honours, I wonder if I could

move to the second aspect of the case and that

relates to the position in the Court of Appeal.

Your Honours, the appeal to the Court of

Appeal was essentially on the ground that the

verdict was perverse but in the sense I will

mention in a moment. Your Honours, the term
"perverse" has been sometimes favoured, sometimes

not favoured, but essentially the question was whether the verdict was or was not against the

weight of evidence. Your Honours, that means

relevantly, in our submission, that the decision

was one at which, on the whole of the evidence -

and I emphasize the word "whole" - a jury might not

reasonably have arrived.

In our submission, the Court of Appeal applied

a different test, that is, that they looked at the

most favourable view of the defendant's evidence.

Your Honours, I will come to the passages in the

reasons for judgment in the Court of Appeal in just

a moment, if I may, but I wondered if I could

indicate to Your Honours some statements as to the

difference between the two tests. First, in the

decision in the Supreme Court in New South Wales in

Hocking v Bell, (1943) 43 SR(NSW) 154 at 156.

Your Honours will see in the second new paragraph

on the page, the paragraph commencing "It is beyond

contention", Mr Justice Davidson commences to draw

the distinction between, on the one hand, a case

where there is sufficient evidence, in effect, to

go to the jury and, on the other hand, a review of a decision by an appellate court on the basis that the conclusion was against the weight of evidence. The first of those matters is really dealt with in

the paragraph commencing, "It is beyond

contention", and then His Honour refers to the

second in the paragraph after that saying:

Calin(4) 26 1/3/91

It is equally clear, however, that when

the issues have properly been left to the jury
the Court on appeal may order a new trial if
the jury should reach a conclusion, which is
against the weight of evidence, in the sense
that the evidence in its totality

preponderates so strongly -

and so on.

Your Honours, that case, of course, went to

the High Court - or when it came to the Court, I

should say - and one sees it, Your Honour, in

71 CLR 430. At page 440, the last paragraph on the

page, there is a question of the consideration of

the evidence of both sides. Similarly, at

page 442, last paragraph on the page, where there

is a reference to the observations of

Mr Justice Davidson, to which I took Your Honours.

And, Your Honours, at page 468, it is the first

sentence on the page going through the remainder of

that paragraph. And, at page 487, the first

paragraph on the page in the judgment of

Justice Starke he draws the distinction between the

two tests. And Justice Dixon, at page 499 in the

first new paragraph on the page.

Could I take Your Honours - and I will do so

very briefly - to three cases which indicate the

same thing.	Your Honours, perhaps I will make it
only two.	May I give a reference to the first one:

Metropolitan Railway Co v Wright, (1886) 11 AC 152.

I would refer particularly to page 154. I think

the passage may have been picked up in a passage to

which I have already referred, but could I take

Your Honours to Phillips v Martin, (1890) 15 AC

193.       I am sorry, Your Honours, it is the wrong

reference. Could I take Your Honours to

Jones v Spencer, (1897) 77 LT 536.

It is possible that Your Honours will not have

that because I think we gave the wrong volume

number in the submissions, but may I hand to

Your Honours a copy of it.

MASON CJ: Yes, thank you, Mr Jackson.

MR JACKSON:  It is a decision of the House of Lords. The

relevant passages appear in the speech of

Lord Morris. If I could take Your Honours to

page 538, in the right column, and about point 2 or

point 3, His Lordship says:

That appears to me to stretch too far the

doctrine applicable to setting aside

verdicts -

Calin(4) 27 1/3/91

and so on. It is -

The use of the word "weight'' implies that

there is evidence on both sides -

and so on and the passage continues to the end of

that paragraph.

Now, Your Honours, finally, there is a number

of other cases dealing with a similar issue.	May I
give Your Honours only one further reference,

however, and that is to a decision in the Court:

Brooker v Roszykiawiz, (1963) 37 ALJR 246. Your

Honours will see Justice Kitto, the first paragraph

of his reasons for judgment at page 248. At

page 250, Justice Taylor's judgment commences at

the bottom of the page in the left column. At the
top of the right column, perhaps reflecting a view

of the argument in the case, His Honour refers to

the various warnings that have been given and then

goes on to say, around the reference to

Metropolitan Railway Co v Wright, that whilst it

needs to be an exceptional case, the case was one

where he thought it was.

In Justice Menzie's reasons for judgment, at

page 251, in the left column about two-thirds of

the way down the page, His Honour says - the
sentence commencing:

One occasion for the exercise of the supervisory jurisdiction -

and so on, and that goes to the end of that

paragraph. It is clear, Your Honours will see, he

picks up what was said by Lord Morris in Jones v

Spencer, that is, one must look at the evidence on

both sides.

Now, Your Honours, could I come from that to

the test applied by the Court of Appeal.	In our
submission, the test applied was somewhat

different. The commencing point, Your Honours, is

page 437, about line 11, in the passage which goes

through to line 6 on page 438, which perhaps does

not tell Your Honours much at this point. Then,

from there, one goes to page 438 at the bottom of

the page, lines 21 to 25.

Then, at page 439, Their Honours refer -

commencing about line 9, the President refers to

what was the factual dispute.	He refers to the
trial judge's:

recapitulation of the arguments -

Calin(4) 28 1/3/91

on behalf of the defendant. Your Honours, could I

perhaps, in passing, refer you to the top of

page 440 where it was apparently:

conceded that it looked as though she had

slipped on a banana peel in the aisle -

And then, Your Honours, one sees at page 440

His Honour saying, about line 11:

It is necessary for the appellant to

approach this appeal accepting the case of the

respondent at its highest. I have

incorporated Finlay J's summation of the case

presented in argument ..... because it may

safely be assumed that this is the way in

which the respondent sought to place the
matter before the jury at its highest from the

respondent's point of view. Upon that case,

if accepted, it would clearly have been open

to the jury to conclude adverse to the
appellant and to return a verdict in favour of

the respondent.

Your Honours, that, in our submission, if one looks

from there through to the next page, through to

page 441 about line 12, it is apparent, in our

submission, that what the court was doing was, in

essence, to look at the case on behalf of the

defendant without weighing it against the case on

behalf of the plaintiff. That, in our submission,

is not the appropriate test.

BRENNAN J:  How do you mean "without weighing it",

Mr Jackson?

MR JACKSON:  Your Honour, I am sorry, "weighing" is perhaps

the wrong word. What I was seeking to convey was

that the court appears to have approached its task

by looking to see what the evidence on the part of

the respondent was and saying whether, if that	evidence were accepted, that was sufficient to
justify the verdict. What the court was not doing
was to take into account also the evidence called
on behalf of the plaintiff in the case and saying, "Looking at the whole of the evidence", that is the
evidence called on both sides, "was the evidence
such that the verdict for the defendant must have
been against the weight of the evidence?".

DEANE J: But His Honour the President seems to be accepting

the basic facts of the plaintiff's case for the

exercise he is engaging in?

MR JACKSON:  Yes.

Calin(4) 29 1/3/91

DEANE J: Was there any error in saying, "Well, now, for the

purpose of assessing whether it was open to the

jury to find the defendant wasn't guilty of breach
of duty of care one must approach it on the basis
of the defendant's evidence of its system should be

accepted."?

MR JACKSON:  I am sorry, I did not quite follow what

Your Honour was putting to me then.

DEANE J:  As I understand the evidence in the case,

regardless of what test you took of ordering a new

trial in the case of the jury's verdict, in this

case you would say, "Well, you assume the jury
accepted the defendant's evidence of its system.".

That being so, we know the circumstances to which

that system was applied. Therefore, the question

does not involve any conflict of evidence but

involves whether it was open to them to conclude

that that system in those circumstances discharged

any duty of care.

MR JACKSON:  Your Honour, it is true to say that His Honour

referred to what the plaintiff's evidence about the

way in which the accident occurred was. It was

also true that His Honour referred to the summation
of the defendant's case, if I can put it that way,
by my learned friend, but in considering the

question whether there was or there was not a case

where the jury verdict should be upset, what one

does not see, Your Honour, is any consideration by

the court of the weight of the plaintiff's case.

What I mean by that is that there is no

consideration, if Your Honour looks through the

reasons for judgment, of, in effect, anything other

than the defendant saying what its system was and
the President of the Court of Appeal is saying, if

the jury accepted that, that was the end of it.

Now, Your Honours, it was not really a question of

just saying, well the plaintiff's evidence was that

these things happened and that the system was
so-and-so.	Your Honour, there was just really, if

I can put it this way, no consideration of the issue on either side.

TOOHEY J:  Mr Jackson, the grounds of appeal are not in the

appeal book, are they? Can you tell us what they

were?

MR JACKSON:  Your Honour, I can, if Your Honour would give

me just a moment.

MR ROPE:  To assist Your Honours, we have copies of those,

if we can hand them up.

MASON CJ:  You might hand them in, Mr Rofe.

Calin(4) 30 1/3/91

MR JACKSON:  Your Honour, the grounds appear on the first

page - they are grounds 1 to 4:

The Jury was in error in finding that the

Defendant was not negligent.

The Jury erred in applying the directions on

evidence given by His Honour in the summing

up.

The Jury's verdict was against the evidence

and weight of evidence.

The Jury's verdict was perverse.

Now, Your Honours, on this point, could I say that

you will see in the Court of Appeal's reasons for

judgment, that there is a reference at the bottom of page 437 to the top of page 438 to a number of

cases. Your Honours, those cases seem to provide,

or perhaps may be thought to provide, the basis for

the observation which appears at page 440,

lines 11 to 12. Your Honours, one does find

observations to that effect in the cases to which
reference is made, but they have been taken out of context in a sense. As one sees if one looks, for

example, at the observation of the Court which

seems to found all those cases, which is to be seen

in Australian Iron and Steel Ltd. v Greenwood,

(1962) 107 CLR 310, and Your Honours, the point I

am seeking to make is that whilst it is true to say

that one has to consider the case, looking at the

evidence at its highest in favour of the defendant,

it does not mean that one only looks at the

evidence on behalf of the defendant.

Your Honours, the relevant observation which

appears to found those cases is to be seen in the

joint judgment of Justices Taylor, Menzies and Owen

at page 311 and, Your Honours, about two-thirds of

the way down the page in the sentence immediately

after the reference to Thatcher v Charles.

Now, Your Honours, I should say that that was

a case which involved a question of the metre of

damages, whether the measure of damages was such

that the jury must have taken the wrong view of the

evidence and it is in those circumstances that the
court is saying, that the court must assume the
jury has taken the view of the evidence, meaning
the evidence in toto, most favourable to the

respondent.

Now, Your Honours, observations to that effect

follow through in the cases which are referred to

at page 437 and the top of page 438. Could I give

Your Honours copies of the unreported decisions

Calin(4) 31 1/3/91

there referred to in case Your Honours do not have

them. Your Honours, in the Victorian decision the
relevant passage appears to be at, for example, the

bottom of page 6 in the judgment of the

Chief Justice and although in the present case, at page 437, the President says:

The circumstances in which an appellate

court may review a judgment ..... following the

verdict of a jury were reviewed recently by

the Court in Petersville v Vidakovic (No 2).

there does not seem to be anything particularly

relevant for present purposes in that decision.

Perhaps I can give Your Honours the references

where anything potentially germane is dealt with,

pages 3 to 7 - - -

McHUGH J: There seems to be some misunderstanding of

Williams v Smith in that Victorian case. Williams v Smith was concerned with whether, as a matter of

law, a verdict could be entered for a - - -

MR JACKSON:	Your Honour, it is possible to analyse the cases that are referred to purport to follow
Williams v Smith as if they contain really a hidden
error which may not be ultimately germane to the
decision in the particular cases, because what
Your Honour says is correct about Williams v Smith,
it is a question whether there was or was not
evidence to sustain contributory negligence on
admitted facts. Equally, Your Honour, it is possible if one takes - - -
McHUGH J:	Not whether there was evidence but on the

plaintiff's own admission whether, as a matter of

law, there was contributory negligence and

therefore there should have been a verdict entered

for the defendant in that case.

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

loosely. Your Honour, similarly, I suppose if one

took out of context what was said in Australian

Iron & Steel it would be possible also to say that

one looks only at the defendant's evidence but that

does not seem to be what the case means, it is

talking about whether at the end of the day the

whole of the evidence meant such-and-such. But,

Your Honours, it seems it is a pervasive notion

which may, in the end, result in error. But,

Your Honours, so far as Petersville is concerned

could I give Your Honours the only potentially

relevant passages appear to be at pages 3 to 7 in

the judgment of the President - - -

McHUGH J:  What are the pages?

Calin(4) 32 1/3/91

MR JACKSON:  Your Honours, pages 3 to 7, it does not really

touch the point and, Your Honours,

Justice Priestley deals with the issue at page 21

and, Your Honour, the third member of the court at

page 34 agreed with the President and some or all

of Mr Justice Priestley's reasons for judgment.

DEANE J: Mr Jackson, can I bring you back here. Whatever

approach one takes, must it not lead in this case

to accepting the defendant's account of its system?

MR JACKSON:	Yes.
DEANE J:	And then not to a question of really evidence at

all, though it is a question of fact, namely,

whether it was open to a jury acting reasonably in

the discharge of its functions to find that that

system satisfied the requirements of the

appropriate duty of care in all the circumstances.

MR JACKSON:  Yes, Your Honour, that is the ultimate

question.

DEANE J: It just seems to me that even if one reads that

sentence of the President's:

It is necessary for the appellant to

approach this appeal accepting the case of the

respondent at its highest.

as qualified by reference to what it was open to

the jury acting reasonably to find, that one will

eventually have to come to that ultimate question.

MR JACKSON:  Yes, Your Honour. In the end, one has to come

to the question whether, accepting that was what

their system was, was that sufficient? That is the

ultimate question allowed.

DEANE J:  Or was it open to a jury acting reasonably to find

that it was sufficient?

MR JACKSON:  Yes, and that is the ultimate issue in the

case. Now, Your Honours, may I turn to the facts.

I said to Your Honours that I would give to the

Court a summary of our submissions on the facts in

that regard and I wonder if I might proceed to do

that.

TOOHEY J: In doing this, Mr Jackson, I take it we are

entitled to have in mind that no complaint was made

before the Court of Appeal as to the content of the

direction given by the trial judge other than in

respect of the duty of care, as you dealt with it?

Would that be a proper approach for us to take or

not?

Calin(4) 33 1/3/91

MR JACKSON: It is the fact, Your Honour, but the relevance

of it, I am not too certain, with respect.

TOOHEY J:  I am not sure whether you are offering us this in

part to demonstrate that His Honour either dealt

inaccurately with some aspect of the facts or did

not deal sufficiently comprehensively with the

facts.

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

do was to deal with the question whether, assuming

that the Court of Appeal did not apply the right

test, what the result should be applying the right
test, and that is what the purpose of this is.

Your Honour, it summarizes the evidence and the conclusion that we would submit should be reached on it.

Your Honours, there is only one thing about it

that I think it does not set out, and that is who

the relevant witnesses were, and perhaps I should

just say that. There were six. They were: the

plaintiff's husband; her son; the ambulance

officer, a Mr Weekes and three employees of the

defendant. They were a Miss Marchant, who was the

usherette; a Mr Callaghan, who was the theatre

manager and a Mrs Field, who was the cashier.

BRENNAN J:  Mr Jackson, would it be right to say, looking at

your paragraph 4, that the ultimate question is one

of complete inadequacy of the system? Given the
physical environment, that is the position of the
entrance way, the seats and the lights, the only

real question is whether, on the evidence adduced

by the defendant, the system thus described is one

which was completely inadequate?

MR JACKSON: Well, Your Honour, that is right with perhaps

this addition, if I can put it that way. The

addition is that one has to take into account such

much, about the premises, such as the fact, I think other evidence, which may not have amounted to very there was a curtain there, it was dark beyond the
curtain, and - - -

BRENNAN J: Yes, I am assuming all of those things, which

were not in dispute, were they?

MR JACKSON:	Your Honour, I think not, no.
BRENNAN J:	The only question really is, in the case,

whether or not the system of cleaning or of

supervision was one which was or was not

reasonable.

MR JACKSON:  Yes, Your Honour. That is the question in the

case. To say it is the only question~ I suppose,

Calin(4) 34 1/3/91

is correct, but it depends what one means by that a

little - I mean by seeking to add that caveat to

what Your Honour put to me - is that it does

involve, if one is speaking about the system of
cleaning and supervision, it is not perhaps just a
system of cleaning and supervision that one is

looking at; one is looking to see whether there might have been other things done that were not

necessarily cleaning and supervision ..... , that is

the case.

BRENNAN J:  Such as a torch to guide people to their seats,

or something like that?

MR JACKSON:  Yes, or perhaps preventing people taking things

like bananas in if they were seen.

BRENNAN J: Yes, but in considering those matters, is there

any straining of the facts of the case by

considering them at their highest from the

defendant's point of view?

MR JACKSON:  Any straining of the facts?

BRENNAN J: Yes, does that tend to disorient the

consideration that is being given to the matter?

MR JACKSON:  Your Honour, I suppose not in the sense that if

one considers those facts one has to consider them

on any basis at, in effect, their highest and I

suppose their highest is the same as their

existence. But the point I am seeking to make

about it is that one does not, in effect, only look

at those facts and look at nothing else.

BRENNAN J: But if one looks at the physical situation, the

facts as described by the defendant, what other

facts are there of a primary kind to look at?

MR JACKSON:  Your Honour, the other facts were the circumstances in which the plaintiffs entered the

premises. They came on to the premises at a time

when - their evidence about corning into a theatre

that was darkened as so on. Your Honour, there is

not much, I accept that. It is really the version

overall.

Your Honour, perhaps I should also say that

when the Court of Appeal was referring to the

defendant's case, they were not, in effect,

referring to all the defendant's evidence, they

seemed to be just referring to those parts of the

evidence to which reference had been made in the
submission to the jury - something in the

submission to the jury. If Your Honours look at

the document which I handed up, Your Honours will

see at paragraph 1 the parts that were dealt with

Calin(4) 35 1/3/91

in that and then, in paragraph 3, the parts that

were not.

Your Honours, the only other matter I want to

mention is -

DEANE J:  Mr Jackson, paragraph 4 puts it a bit wrongly,

does it not? Must it not be, "the only conclusion

at which the jury could reasonably arrive was that

the respondent had failed to exercise reasonable care by reason of" and then "complete" would go?

MR JACKSON:  Your Honour, I accept there is a flourish in

"complete" .

DEANE J: But it distracts from the real question. If one

sets out to say, "Was this system completely
inadequate?", or "Did the jury have to find that?",
the question is, "Was the jury obliged, acting

reasonably, to find that the failure to exercise

due care by reason of inadequacy?".

MR JACKSON:  Yes, Your Honour. I accept what Your Honour

puts to me.

DEANE J:  On that, since I gather you are passing from this,

can I ask you, was there an interval in this show

or was it one that just goes from beginning to end?

MR JACKSON:  No, just after the fall, Your Honour. The fall

occurred apparently during the shorts.

DEANE J: There is an interval between shorts?

MR JACKSON:	Yes, an interval between shorts and main film.
DEANE J:	And what was the period between the sessions?
MR JACKSON:	Your Honour, the sessions were, I think, 11, 2,

5 and I just cannot recall the time of the next

one. The previous session, or the one commencing

at 2, had finished, I think, at approximately 4.20

and the usherette, Miss Marchant, then did a quick

trip around, kicked the papers under the seats and

sat down to read a book.

DEANE J:  And when did the next session start, 5?

MR JACKSON: five.

DEANE J: Well, does that mean that the lights were on and

people were coming in from 4.20 to 5 and at 5 the lights were turned off without any further check?

MR JACKSON:	Yes, Your Honour.
DEANE J:	And the evidence is clear as to that?

Calin(4) 36 1/3/91

MR JACKSON:  Well I thought so, Your Honour. I will check

it, but I believe it to be the case but,

Your Honour, what happened at 5 was the shorts

start, the advertisements for things one would

probably prefer not to buy, and for other films,

shorts and then the plaintiff and her party came in

at about 5.20.

DEANE J: But if one were to look at the evidence most

favourably from your point of view - I do not mean

as to what the evidence was - you would focus, I

presume, on the fact that the lights had been on

for 40 minutes with, to everybodies knowledge,
people coming in not watching the film, and they
then turned the lights off without the sort of
check then that they considered to be necessary at

the end of the previous session?

MR JACKSON:  Yes, and Your Honour, the effect of absence of

checking being evidenced to some extent by the fact

that pistachio nut shells were found in the

vicinity of the plaintiff.

DEANE J: Well, if you fail on your contractual point, does

the case involve more than this from your point of

view, whether in circumstances where, on the

defendant's own case, it is reasonable and easy to

have a check at the end of the session, it is in

conformity with discharge of a reasonable duty of
care to have no check at all before it turns out

the lights at the beginning of the next session?

MR JACKSON:  Yes, Your Honour, plus - - -

DEANE J: But that has to be put, of course, in the context

that the jury has found, presumably, that that was

not involved in the discharge of the duty of care.

MR JACKSON:	Yes, Your Honour, plus, I suppose one could say, a little more, and that is that it was not
only a case of not checking the floors. The case
was rather more than that, in the sense of taking
different measures, but I take Your Honour's point.
TOOHEY J:	I may not understand the facts correctly in the

light of the answer you have just given. There was

a session which had concluded before the session,
at the end of the first part of which the plaintiff

and her family entered the theatre. At the end of

the session which had concluded and between which
there was an interval of some time before the next

session, what, if any cleaning, if an inspection

had taken place?

MR JACKSON:  Your Honour, what happened was that

Miss Marchant, who was the usherette - her job then, which she said she did, was that she carried

Calin(4) 37 1/3/91

out a quick walk around the theatre. If she saw a

large object or an object of appreciable size in
the passageways in the theatre, she would pick it
up and dispose of it outside. If she saw papers,

for example, I suppose lolly packets, that sort of

thing, what she would do was to kick them - I do

not mean that in any particular violent sense but -

or push them with her feet under the seats. The

theatre was otherwise cleaned after all the

sessions had finished for the day by professional

cleaners.

TOOHEY J: Well then, once the session started, with which

we are concerned, there was a short interval

apparently between the first segment which involved

some short features and then the main feature, and when, in relation to that break, did the plaintiff

and her family enter the theatre?

MR JACKSON: Before, Your Honour.

TOOHEY J: Before?

MR JACKSON:  Before the break. The session starts at 5.00

and they came in at about 5.20 to 5.25 -

Your Honour, may I just check - and the interval was about 5.40.

TOOHEY J:  So they entered during the period that the

theatre was in darkness and while the first segment

of the 5 o'clock session was under way.	Is that
right?

MR JACKSON:  Yes, Your Honour.

TOOHEY J: Thank you.

MR JACKSON:  Your Honours, the last thing I wanted to say

was that if Your Honours look at page 301,

Your Honours will see a plan of the theatre. The

exhibit at the top has a mark for an identification

number. It was originally marked for

identification but it became an exhibit as

exhibit 1, and the tendering of it can be seen at

page 183. Now, Your Honours will see - if one is

looking for the place where the plaintiff fell, if

Your Honours look at line 25 down the side of the

page, Your Honours will see to the left of that

exit and then between rows Wand X, a line has been

drawn. That was drawn by Miss Marchant as being

the place where the plaintiff fell.	The screen is
towards the bottom of the document.

TOOHEY J:  I did not realize dress circles still existed,

Mr Jackson. Does that suggest it is a higher

section of the theatre?

Calin(4) 38 1/3/91

MR JACKSON:	Yes, Your Honour.
TOOHEY J:	So where would the plaintiff have entered the

theatre?

MR JACKSON:  At the rear, as I understand it, Your Honour,

at the top of the exhibit, in effect, and walking

down the ramp. Your Honours, those are the

submissions I wish to make.

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

MR ROPE:  Your Honours, we have an outline of our

submissions if I might hand those up.

MASON CJ:  Thank you. Mr Rofe, there has been quite a

comprehensive exchange between the bench and

Mr Jackson so that you might present your arguments

in the light of that.

MR ROPE:  Yes. Your Honours, essential in relation to the

contractual entrant point, we submit that in the

circumstances of this case where the only
negligence said to be involved was that of the

servant of the occupier and it also being in the

context of what is said to be a dynamic activity,

as distinct from a static or a structural defect,

that for all practical purposes the standard of

care owed to the contractual entrant is identical -

or at least virtually identical - to and co-
extensive with the general duty of care

re-enunciated in the Zaluzna case.

TOOHEY J:  Mr Rofe, is that an accurate statement, having

regard to the allegation in paragraph 6(c) of the

statement of claim which is on page 2 and which

alleges a failure to provide adequate lighting?

MR ROPE: Well, we would submit, yes, because the failure to

provide the adequate light, if you accept that

there were footlights which were said to illuminate

the carpet is really, in the context of where this
case was fought, was more a reference to the fact
that there was an absence of an usherette with a

torch.

TOOHEY J: But that is dealt with under paragraph (d), is it

not?

MR ROPE:  Yes, but I am saying that as the case seemed to be

fought - there was a contest, first of all the

plaintiff's husband and the son denied that there

were footlights and they were on, and it certainly

was not a contest that there was not an usherette

with a torch at the relevant time guiding the

plaintiff to her seat. But the complaints that

seemed to have been made, if the respondent was

Calin(4) 39 1/3/91

entitled to be believed on the footlights being on

and permanently on, was really reduced to the fact

that the lighting - perhaps to some extent, it may

not be completely - but the lighting was inadequate

by virtue of the absence of an usherette with a

torch. It may be that Your Honour Justice Toohey is

correct in that regard; there certainly is an
allegation in the pleadings that there is, perhaps

it might be said, a defect in the premises - - -

TOOHEY J:	Or in the system.
MR ROFE:	Or in the system, but if it is a defect in the

system, we would submit, which essentially would
seem to me the way the case was fought, that would

be more a dynamic activity rather than some defect

or of a structural or static kind. Now, if that is

so then the so-called different or higher standard

of care that Maclenan lays down really is higher or

different because it has a wider reach, it goes to

independent contractors, and that was not relevant

here, and it is said to go to impose liability on

an occupier in respect of defects that were

established prior to his occupation and in the

light of Zaluzna if you remove that situation and

apply it to this case then, in our respectful

submission, it is really semantics to say there is

any difference between the Zaluzna statement of the

general duty of care and, in these circumstances

and in this context, the statement that was called

for and relevant and given by the learned trial

judge.

Given that it is conceded on all the

authorities that the occupier is not an insurer, he
is seen to us, with respect, to discharge an non-
absolute duty to make something safe, you would

have to be able to foresee a likely risk of injury

and that, really, is another way, in our respectful

submission, of saying or stating what the general

duty of care requires to use reasonable care and
skill to avoid foreseeable risk of injury.	So that
whereas it is correct to say that in some

circumstances the Maclenan duty or implied warranty

is stricter or higher than the general duty of

care, in our respectful submission, that is only

because it has a wider application, particularly,

to independent contractors and to predecessors, or rather to occupier whose defects have been created

by predecessors which Maclenan does deal with.

So that when Mr Justice Finlay gave his

directions, to which reference has already been

made, particularly the passages at pages 315

and 316, in our respectful submission, he was

giving the directions in the context of the facts of this case, and it was - as I think Your Honour

Calin(4) 40 1/3/91

the Chief Justice has indicated, it can hardly be

said it was not favourable to the plaintiff. He

used, and we would submit, correctly used, the fact

that the plaintiff was a lawful entrant by

contract, having purchased a ticket, is relevant to

the measure of the discharge of the general duty of

care. And we would submit that was correct of him

to do that in the facts of this case.

We would perhaps embrace, although we do not

have to - but we would embrace, perhaps, the

invitation that this Court should perhaps, in any

event, declare that the general duty of care, as

restated in Zaluzna, applies to all entrants. If

one considers for example the absurdities of having

perhaps a different result - if you are a

contractual entrant because you buy a ticket to go

into a theatre, another person who, through the

goodwill of the manager, is given a free ticket,

you could end up, in certain circumstances, with

having the same sort of action through the same
sort of alleged negligence, and the fellow who has

the free ticket fails and the person who has

purchased a ticket succeeds, and we would simply,

with respect, give that as an illustration as

perhaps why, in the light of Zaluzna that there

ought to be a statement by this Court of the

application of the general duty of care to all

entrants.

Again the significance or the fact of the

manner of entry, whether you pay or whether you do

not pay, can be reflected, is a relevant matter to

the measure of the discharge of the general duty.

TOOHEY J: But are you inviting us to overturn Watson v

George?

McHUGH J:  Subsume it undesirable.

MR ROFE:  Yes, I think Justice McHugh has put it much more kindly for me. Perhaps Watson v George should be subsumed.

DEANE J: But you have put your finger on the difficulty and

that is it could not be just a matter of subsuming;

it would also involve looking at the position of
liability for the failures of the independent

contractor, which is a very difficult area as the

law stands at present.

MR ROFE:  Some steps seem to have been taken by this Court

anyway in Kondis and Stevens. It may be there is a

need to take the further steps to rationalize the

matter.

Calin(4) 41 1/3/91

DEANE J: Except that that step would need to be taken to

subsume or, alternatively, you would need to limit

the implied term to a supplementary duty of care in

the circumstance at least of an independent

contractor.

MR ROFE:  Yes. Your Honours, perhaps I have issued an

invitation that I need not issue because, in our

submission, it is the same because of the -

MASON CJ:  I thought, earlier, you regarded yourself as embracing an invitation that we had issued.

MR ROFE: Perhaps I have put that wrongly.

DEANE J: Well, there were some noises on this side. It

could have been -

MR ROFE:  I may have misconstrued what was said as an

invitation.

MASON CJ:  I think it was a very tenuous invitation,

Mr Rofe.

MR ROFE:  If Your Honour pleases. I do not know that I can

add anything to the submission in relation to the

duty being the same or the standard being the same.

Can I then go to the next point which we would

seek to make? It is our submission that the

appellant was bound by the course of the trial

which was from start to finish conducted on the

basis that the relevant and only duty of care was

that restated in Zaluzna and I can from my own

recollection recall His Honour the trial judge on

day one asking to be reminded of the name of the

case which, in those days, was fairly recently

handed down, Zaluzna.

That was accepted by the plaintiff and we

would submit that it would be unfair to the

respondent at this stage and in these circumstances and contrary to general principle for this Court to grant a new trial, the circumstances being quite

exceptional here. Indeed, I have not been able to

find the case of where not only was there no

application and abundant opportunity to make an

application for a direction to the trial judge but

when the matter came to the Court of Appeal there

was no application to raise the matter by adding a

ground in the Court of Appeal.

TOOHEY J:  Mr Rofe, I know you say that a duty of care under

Zaluzna is coextensive with that under Watson v

George, at any rate - - -

MR ROFE: In the same -

Calin(4)	42	1/3/91
TOOHEY J:	- - - for present purposes.	Do you also offer a

submission that if there is any difference between

the two the directions given by the judge satisfied

the test in Watson v George although the precise

formula may not have been used?

MR ROFE: Yes, in the circumstances. In other words, the

fact that he did not use the precise words that are laid down in Watson v George, in our submission, is

immaterial because the words that he did use were

sufficient to satisfy the standard of care laid

down by Watson v George in the particular

circumstances of this case.

On the second point, Your Honours, there is a

long line of authority in relation to jury trials.

There is, an appellant ought not to be permitted to

rely upon points which were not raised at the

trial, at least in the absence of exceptional

circumstances, and Your Honours have had referred

to you various passages already in the Moularis

case, and we have made reference to a statement in

Piening v Wanless at 504 point 1, and you have

already had read to you a passage in Morawski.

Could we add, briefly, two short further

references. Coulton v Holcombe, 162 CLR 1, a

decision of this Court, in the joint judgment of

Chief Justice Gibbs and Justices Wilson, Brennan and

Dawson. This passage appears, and seems to have

been endorsed, from the case of the University of

Wollongong v Metwally, point 5 on the page:

ttit is elementary that a party is bound by

the conduct of his case. Except in the most

exceptional circumstances, it would be

contrary to all principle to allow a party,

after a case had been decided against him, to

raise a new argument which, whether

deliberately or by inadvertence, he failed to

put during the hearing when he had an

opportunity to do so.tt

In reading that passage, of course, I am conscious,

Your Honour Justice Deane reminded us at page 17

that, of course, these statements have to be looked

at in the context of the facts. The facts in

Coulton seem to be that at the stage of an appeal,

at the appeal stage at the Court of Appeal, the

present respondents applied to amend their grounds

of appeal by adding an allegation that a certain

gazetted notice under the Water Act was invalid and

it was in that context that the four Justices of

this Court restated that passage from the

University of Wollongong v Metwally.

Calin(4) 1/3/91

Could I just refer to one more short reference

to that case when it seems to come back to the

Court of Appeal under the name of Holcombe and

Others v Coulton and Others, (1988) 17 NSWLR 71,

and a short passage in the reasons for judgment of

Your Honour Mr Justice McHugh who then was sitting

in the Court of Appeal, at page 77F - if I could

just draw Your Honours' attention to that passage.

Is that a convenient time, Your Honours?

MASON CJ:  We will adjourn now and resume at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MASON CJ: Yes, Mr Rofe.

MR ROFE:  Your Honours, we are submitting there are no

exceptional circumstances here which should
overrule the general rule or except from the

general rule that when points are not taken, that

they cannot be relied upon at a later stage, and

this of course is compounded by the fact that here

we have two forum where this point was never

raised, at the trial level and in the course of the

Court of Appeal. We would point to the fact that

this was not only a case where the course of the
trial proceeded on the ..... of the general duty, but

the appellant's counsel participated in agreeing
with the format of the four questions to be

submitted to the jury.

The jury asked four questions: the first

question was, has the plaintiff proved the defendant

negligent, and that appears at pages 299, line 29 to

page 300, line 24, and that was a factor that was

considered in Burchett v Kane to be something that

militated against the granting of a new trial.

Your Honour Justice McHugh would remember that case.

It was a defamation case in which one of the

defences raised was whether there was a fair report

in the senate proceedings. Counsel for the

plaintiff participated in the formulation of that

question and went to the jury. The jury answered

yes, it was a fair report and consequently there was

verdict and judgment entered for the defendant. The

matter came before the Court of Appeal. An attempt

was made successfully to argue that there was no

material capable of going to the jury·to indicate

Calin(4) 44 1/3/91

firstly, that it was a report and secondly, that it

was a fair report.

The three judges constituting the Court of

Appeal agreed that that was the situation and that

issue should never have gone to the jury and

indeed, the consequence of it going to the jury and

being answered adversely to the plaintiff, resulted

in an adverse verdict for the plaintiff and,

nevertheless, a new trial was not granted and one

of the matters that was referred to by

Mr Justice Mahoney at pages 276E, 277C and 278D was

that the plaintiff's counsel have actually

participated in or acquiesced in the form - the
substance of the question going to the jury. Here

again we have a circumstance here in which

plaintiff's counsel agreed with the formulation of

the four questions that went to this jury.

We would also point to the fact, in this case,

on the question of whether there were exceptional

circumstances and indeed, perhaps irrelevant on the
question of the discretion in any event, that the

breaches particularized in relation to the so- called contractual entrant count are, with one

exception, virtually identical with the breaches

that were particularized in relation to the general

duty count, and that appears at pages, in relation

to the breach of the contractual entrant count,

pages 1 and 2 of the appeal book and in relation to

the alternate count of the general duty of care,

particulars are set out in pages 2 and 3, and

indeed the allegation that the defendant was

negligent in failing to insist the potentially

hazardous food stuffs, bananas, were not brought

into the premises, which is particular 8(i) on

page 3, was not a particular raised as a breach

under the contractual entrant count.

We would say, looking at the reality of the matter, that the jury would most probably have

brought in exactly the same verdict had the

direction been given in the classical term of

Watson v George in reliance upon those breaches.

Now, Your Honours, the next point we seek to

raise is, under point 5 of our written submissions,

even if there is some wrong and a substantial

miscarriage is occasioned under Part 51 rule 16 of

the Supreme Court Rules, the granting of a new

trial is discretionary. The powers of the Court of

Appeal to deal with and grant, or set aside a jury verdict and grant a new trial are contained in

Supreme Act

section 102 of the Court 1970. and it is in substitution of the old' pection 7 of the Supreme Court Procedure Act. Section 75A of

Calin(4) 45 1/3/91

the Supreme Court Act is not relevant because it

does not apply to appeals arising out of jury

trials.

Now, on the matter of discretion even where

some wrong or substantial miscarriage has been

occasioned, it would seem that the test which this

Court has stated in Burston's case to which

reference was made this morning is whether, in the circumstances, the demands of justice require that

there be a new trial. Now, the demands of justice,

we would submit, take into account injustice and

undue prejudice to the respondent. We would submit

that it has been long recognized that to grant a

new trial is, I think Your Honour Justice McHugh

described it in Eggin's case as an enormous evil

and may I just refer to that short passage in

Eggins, (1986) 5 NSWLR 521, where Your Honour

Mr Justice McHugh sitting in the Court of Appeal said at page 524F:

As the courts have often pointed out, new

trials are "an enormous evil". In an era

where solicitor and client costs greatly

exceed that which is recoverable on a party

and party taxation basis, a new trial means

that substantial costs are always incurred

which are irrecoverable even by the successful

party. If a party suffers an "injustice" by

reason of the failure of his legal advisers to take a point, he must seek his remedy, if any, against his legal advisers and not by

depriving the successful party of his verdict.

And Your Honour again in Holcombe v Coulton,

(1988) 17 NSWLR 71, to which I made reference,

reminded us, it is at page 77B, in these words:

While it is true that the opponents have been

awarded the costs of this litigation, the

An award of party and party costs does not costs were awarded on a party and party basis.	indemnify a successful party in respect of the
expense of litigation. Probably 40 per cent
of a successful party's costs are not
recoverable on a party and party taxation.
Now, if we are looking at matter of injustice

and prejudice to the respondent we would put these
matters before this Court: firstly, it was default

on the part of the appellant and not the respondent

not to seek a direction or redirection; secondly,

this default continued when the matter came before

the Court of Appeal; thirdly, we would submit, the

respondent will be unduly prejudiced as to costs if

Calin(4) 46 1/3/91

there is a retrial. This was, I think, a seven day

trial before the supreme court. And, in this case,

we would submit, the undue prejudice is compounded
by the fact that the appellant is legally aided. Under section 47 of the Legal Aid Commission Act

1979, the present ceiling is - I am instructed,

since 1 September 1990, as to costs - $12,500.	The
respondent's costs to date have been huge.	I can

put it simply that, and I am talking, of course,

solicitor and client costs.

The next matter we would put by way of prejudice is the incident having happened or

allegedly happened in 1983 a new trial would

probably not take place in New South Wales before

1992, if then. That would be a jury trial with consequent fading of memories of witnesses. We would also put that the respondent is entitled to

the benefit of the public policy interest in the

finality of litigation.

We would also submit though that if there were

a retrial, by reason of subsequent events which

have come to our knowledge, it is almost certain

that the plaintiff would fail. Now, I am in an

embarrassing situation in that regard,

Your Honours. Could I put it this way, that if
Your Honours took the view in favour of the

appellant on everything except the question of the

discretionary matter as to whether a new trial

should be granted, we would seek an opportunity to

put before this Court, in a proper form, material

of subsequent events that have come to our

knowledge which, we would submit, would be relevant

to the question of the discretion on the basis that

if this Court had material which would indicate to

it that the granting of a new trial would produce

the same unsuccessful result in all probability, we

would submit, that would be a discretionary matter

properly to be taken into account.

I do not know that I can take it any further

than that. The determination this Court might make

might never come to a consideration of that

discretionary matter, but if that was the only
obstacle to a retrial, a discretionary matter, we

would seek that opportunity.

May I now move to the other aspect on page 3

of our written submissions; that is the matter that

was argued before the Court of Appeal. In addition

to those authorities to which Your Honours have

already been referred, we would seek to put before

Your Honours, without taking you to them, the case of Middleton v Melbourne Tramway and Omnibus

Company Limited, (1913) 16 CLR 572, where a verdict

for the plaintiff was set aside by the supreme

Calin(4) 47 1/3/91

court on grounds that the verdict was against the

weight of evidence. The High Court restored the

plaintiff's verdict, and might I just draw

Your Honours' attention to a passage by

Acting Chief Justice Barton, at page 579 point

four, where he says:

The real question is whether it was such a

verdict as reasonable men might have given.

If it is, we have no right to say that they

have ignored the duty cast upon them.

Mr Justice Isaacs, at 581 point eight - could we

also put before Your Honours on this question of

the test some further unreported judgments of the

New South Wales Court of Appeal; firstly, Concrete

Constructions Pty Ltd v Kovacevic, a decision of the Court of Appeal 20 June 1988, where a jury verdict for the plaintiff was set aside and a new

trial to damages only was ordered. In particular

His Honour Mr Justice Samuels at pages 5 and 6 said

this:

To say that the finding of the jury is

against the evidence ..... is not at all merely

to suggest that there is less evidence or less

cogent evidence to support the conclusion at

which the jury arrived. It is to say that the

jury's finding was unreasonable or, as it may

be said, perverse and indicates that the jury

could not have understood the task that was

put before them.

A further unreported judgment of that court,

Belovukovic v Australian Telecommunications

Commission says in a report of 26 August 1988, jury

verdict for the defendant; appeal on the ground the

verdict was against the evidence and the weight of

evidence, and Your Honour Mr Justice McHugh said -

the passage of Your Honour Mr Justice McHugh at

page 1, at the bottom of the page: 

The principal ground of appeal is that the verdict was against the evidence and the

weight of evidence. As Mr Hudson conceded in

his argument, this requires a finding by this
court that upon the evidence the verdict of

the jury was perverse.

Finally, an unreported judgment of that same

Bazina v Thomas Coffey Constructions Pty
court in defendant; appeal on the grounds that the verdict

was perverse, and a new trial granted and

His Honour Mr Justice Clarke gave the leading

judgment. He said, at page 4 point 2:

Calin(4) 48 1/3/91

The question for this Court is whether it

was reasonably open to the jury in the state
of the evidence to reject the appellant's

case. It seems to me that two issues arise.

The first is whether there was any rational

basis upon which the members of the jury could
reject the primary evidence led by the

appellant and his witness in the appellant's

case. The second, if the first question is

answered in the negative, is whether

nevertheless it was open to the jury to

conclude that these facts did not establish

negligence and/or breach of statutory duty.

We would submit that the test as stated by His Honour the President in this case, to which reference has been made, and also stated by

His Honour Mr Justice Samuels at page 445 of the

appeal book, volume 2, where His Honour said:

I am of the same opinion. It was open to the jury to find that the plaintiff had failed to establish that the system of cleaning was

inadequate, and that the absence of an usher

from the entrance to the cinema did not

constitute a failure to take reasonable care.

I can see nothing unreasonable in those

findings, and accordingly in my view the

appeal should be dismissed with costs.

If one looks at again the circumstances of this

case, the plaintiff on liability led three
witnesses, the husband and the son, Romeo. They

were the only witnesses to the alleged incident.

An ambulance man, Mr Weekes, came to the scene

after the alleged fall. His Honour the President

clearly stated the relevant facts asserted by the

plaintiff when he commenced his reasons for

judgment, as I think Your Honours would have noted.

The question of system adequacy or otherwise,

of course, was derived entirely from evidence

adduced by the respondent and, accordingly, it was,

we would submit, appropriate that the Court of

Appeal look at the respondent's evidence, at its

highest, to determine whether or not it was open to

that jury, acting reasonably and in a proper

discharge of their judicial duties, to come to a

finding in favour of the defendant.

What has not perhaps been mentioned so far is

that this case was fought on the basis that the
plaintiff's claim was fraudulent, that the
plaintiff, together with members of her family, in

fact, conspired to pursue a false claim in relation

to her injuries.

Calin(4) 49 1/3/91

His Honour Mr Justice Finlay made that quite clear in his directions to the jury, commencing at

page 340, at the bottom of that page, where he

says:

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

members of her family, from

the defendant. The defendant says that the conspiracy with

disability alleged by her is not genuine.

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

as has been expressed, indeed by both counsel,

the battle lines have really been clearly

drawn in this court.

In that regard, His Honour also, we would submit,

correctly told the jury at page 308 of the appeal

book, line 24, perhaps:

In respect of any witness -

the passage starting there, but at line 15, he

says:

Obviously if you felt a witness had

deliberately told a lie, it may be difficult

for you to accept the remainder of that

witness' evidence.

The onus was on the plaintiff to establish the

happening of a genuine accident and, of course, to

establish that it happened through negligence on

the part of the defendant and that it caused her

the injuries and disabilities which she claimed.

DEANE J:	Was it put that the accident, as distinct from the
injuries, was not genuine at the trial?
MR ROFE:	It was not put in those terms because Your Honour

will appreciate the defendant - there were no

independent witnesses to the actual happening in

the theatre at the time so the defendant had no

material in relation to that matter and it could

hardly have been put to the plaintiff's witnesses,

without material, any positive suggestion but in

Calin(4) 50 1/3/91

relation to the alleged injuries and incapacities

where the defendant did have material, then the

defendant could positively assert various matters,

which it did.

Nevertheless, the jury, if they felt that the

plaintiff's witnesses - because the plaintiff

herself was not called. She was brought into

court, as Your Honours have seen today, and then

taken out again, so that happened during the course

of the trial. So the jury saw the plaintiff, they

heard what noises she made and it was very much a

matter for the jury in the light of all the

evidence which included the medical claims. She

was claiming to have sustained some condition of

convergent hysteria which reduced her to the

conduct of a two year old; only able to blow
bubbles and make noises of that type, and, on the

other hand, there was some film evidence which was

used by the defendant which indicated, or was

capable of being construed by the jury, that she

had a better performance than that, without going

into the detail of it, and both the plaintiff's

husband and the son and the daughter who gave

evidence in relation to the damages also were

seriously challenged as to their credibility.

We would submit that the jury were entitled,

at the end of the evidence, not to accept that the
accident happened the way the plaintiff's family

said it did happen uncorroborated as it was by any

other independent person. That was one matter they

could have regarded in addition to the matter of

whether the system was satisfactory or not. There

was evidence, for instance, from Miss Field, the

cashier. She testified that Romeo who is the son

when he purchased the ticket had a brown paper bag and was eating something as he entered the theatre and that the mother and father had different things

in their hands like bags and newspapers and that is

her evidence at page 278, line 35.

That was denied by both the father and the

son. The jury were entitled to prefer Miss Field.

The footlights were placed in the aisle and they

were on permanently throughout the show and they

were lights that illumine the aisle at a low level,

a light being on every row but alternate rows.

That was denied by the father and the son, Romeo.

It was supported by the independent ambulance man,

Mr Weekes, and those passages, if I can just give

them to Your Honours: Miss Marchant at pages 183,

line 38 to 184, line 6; 187, line 30 to 188,

line 6; Mr Callaghan, the manager, at 244,

line 39; 245, lines 14 to 29 and Mr Weekes, the

ambulance officer, at page 41, line 26. The

denials by the father were at page 13, lines 12 to

Calin(4) 51 1/3/91

19; page 19, lines 16 to 36; the denial by the

son, page 57 lines 5 to 24.

We would submit the jury were entitled not to

be satisfied on the balance of probability that the

appellant had slipped on the banana peel. The

father said, in his evidence, that the ambulance

man had brought a banana peel to his attention: at

page 14, line 13. The son said his attention was

directed to the banana peel by one of the ambulance

men: page 54, line 3; page 59, line 4 to page 60,

line 4. Indeed, at one stage, the son claimed to

have seen two banana skins: at page 59, line 7 to

page 60, line 2.

As against that, Mr Weekes, the ambulance man,

did not see a banana peel in that area: page 41,

line 12. The other ambulance officer who

accompanied Mr Weekes was not called to give

evidence. Mr Weekes said that he was told by the

son that the appellant had fallen over banana peel:

page 40, line 31; page 41, line 6 to 13. Miss Marchant, the usherette, said she only

saw the banana skin in the foyer after the

incident. She did not see the banana skin near the

plaintiff though she did go to the scene of the

alleged incident. She said that at page 187,

line 20; page 188, lines 11 to 19; page 192,

line 19; page 193, line 11.

Miss Field, the ticker seller, said that some

patron - unidentified - brought a banana skin out

and threw it into the garbage tin. She said that

at page 280, line 15 to 24. Mr Callaghan, the

manager said, he did not see nor was shown a banana

skin: at page 246, line 37.

Now, perhaps contrary to what the Court may

have the impression, this was not a ramp. This was	a level aisle, newly carpeted, no steps, footlights	- the jury could accept - permanently on. That
evidence appears from Mr Callaghan, at page 244,
lines 14 to 23 and lines 35 to 36. The fact that
the footlights were permanently on appears from Miss Marchant's evidence at page 187, line 31. It
is not quite -

BRENNAN J:	Were lights on either side of the aisle or on one side only?
MR ROFE:	If Your Honour visualizes, on the left-hand side

of the aisle every second row had one one; on the

right-hand side, every second row or every

alternate row had one on, so that effectively there

was a light corning from each row across the aisle.

Now, it was perhaps suggested to Your Honour that

Calin(4) 52 1/3/91

Miss Marchant may not have made any check of the

aisle after her check at the end of the afternoon

session. Can I take Your Honours to some specific

evidence on this, because it may be important. At page 184 commencing at line 13 or thereabouts, she

was asked:

Q. What did you do at the end of each session

and in particular at the end of the 2 o'clock

session on that day .... ?

A. I just walked up and down the aisles to see

if there was any rubbish.

That was her practise, she said.	She said at line
24, as she walked into the aisle:

if there is any rubbish just walk into the

aisle and pick it up and kick it under the

seat if it is paper.

If it is paper you kick it under the seat, if

it is something more substantial you pick it

up and take it away.

Q. What time did the 2 o'clock session finish

on that day?

A. About twenty past four.

Q. Did you perform that exercise that you have

just described after that twenty past four?

A. Yes.

So she did her cleaning exercise after the end of

the four o'clock session and, at page 190, line 30,

she was asked about pistachio shells, a little

earlier at line 17, and at line 29:

Q. They were not there when you inspected it?

That is the pistachio shells. She said:

A. No, they were not there when I inspected

it, they were not there when I showed people

to their seats.

So she was showing people to their seats - the

inference is available - from 4.20pm to the time of

the next session starting at 5pm and she saw no

pistachio shells and at page 191 - - -

DEANE J:  Mr Rofe, I had misunderstood the position. Was

the position that, between 4.20pm and 5pm when the

next session started, there was an attendant

actually on duty in the - - -

Calin(4) 53 1/3/91

MR ROFE: That inference would seem to be available from

these pieces of evidence.

DEANE J: Well is it only there or did somebody say that?

MR ROFE:  She gave evidence of Wednesday was a very quiet -

apparently it was a slow day anyway and this film

made it somewhat slower, I gather. She, at some

stage, was sitting at the back reading but what she

does say, at page 191, at line 20:

Q. When the theatre lights were put out at

5 o'clock, what came on first, a series of

shorts, as we used to call them, is that

right? A. Yes.

Q. then the main film was due about-?

A. Twenty to six.

She said there were not many people and that the

seats nearest the aisle were not occupied.	At
page 192, at the top:

Q. Is it that there were very few, if any,

people sitting by the aisle? A. Yes.

So we would submit the inferences available from

those pieces of evidence that she was there up

until the 5 o'clock session started. It is clear

she was not there when the plaintiff and her family

came in about, I think, 5.20. I am reminded, at

page 185, there is evidence at line 15 that,

apparently, this family were seen by her prior to

the 5 o'clock session starting:

I just saw three patrons come in about say

twenty past, half past four.

She had told them:

"Look, the movie does not start until 5

o'clock" -

and they went outside.

TOOHEY J: But, presumably, the statement on page 191, at

line 15, or the question:

Q. When you saw them come in what was the

state of lighting in the theatre?	A.	The
lights were on.

is a reference to the first occasion?

MR ROFE:  Yes, that was when she was apparently sitting at

the back of the theatre reading book ·and she told,

"It doesn't start". They go out - - -

Calin(4) 54 1/3/91

TOOHEY J: At that stage the house lights are on?

MR ROFE:  Yes, everything is on. They denied they had come

in at an earlier point in time, as she said, but,

again, that is a matter which the jury may not have

accepted.

So, in perhaps the terms in which

Mr Justice Clarke puts it in Bazina's case, that jury may not have been satisfied that the accident happened in the way these people said it did.

Certainly, we would submit, it was open to the jury

to conclude in those circumstances that the system

was sufficient and before the Court of Appeal, in

our respectful submission, could have intervened

they would have had to be satisfied, in effect, as
the authorities seem to indicate, that the jury's

verdict was unreasonable and having regard to the

evidence, was so unreasonable as to indicate they

had not performed their judicial duty and we would

respectfully submit that that was not a conclusion

which the Court of Appeal could have come to and

that in the circumstances the way they state the

test was appropriate to the situation that arose in

this particular case.

The second last point that we make to this

Court is if the Court of Appeal was in error in the

test that it applies, it would seem under

section 37 of the Judiciary Act this Court would
step into their shoes and determine that matter for

themselves, that is to say, the matter which the

Court of Appeal was required to determine applying

in the correct test and if that were so, we would

respectfully submit, that this Court likewise would

conclude that it had not been shown that the jury's

verdict was unreasonable and bearing in mind that

the plaintiff, of course, had the onus of proof.

The last matter is a matter which we would

urge that if, contrary to our submissions, the

appellant should succeed in obtaining a new trial

on contractual entrant grounds, that this Court

ought to make some special order, so far as it can,

in relation to costs which would favour the

respondent who of course is not, in any sense, in

default if there has been a default in the

appellant's camp. Those are the submissions that

we would make, Your Honours.

MASON CJ: Thank you, Mr Rofe. Yes, Mr Jackson.

MR JACKSON:  Your Honours, in relation to paragraph C.2 on

page 3 of our learned friend's submissions and our

learned friend' submissions now concerning what

matters were or were not really in is~ue before the

Calin(4) 55 1/3/91

jury, may I give Your Honours three references to

the summing up of the trial judge.

The first is at page 396 where, at lines 15

to 17, my learned friends submissions are recorded

as being:

He said there is no doubt that she fell on her

back in the aisle and that led to soft tissue

injury.

The second reference is at page 332, lines 22

to 26:

He conceded that it looks like she did slip on

a banana peel in the aisle - - -

DEANE J: That is what quoted by the President.

MR JACKSON:  Yes, Your Honour. The third passage is at

page 341 where, Your Honours, it is the second and
third lines on the page - and this is the obverse -
where, if one looking to see what battle lines were
drawn, this seems to indicate perhaps what it was:

The defendant says that the disability alleged by her is not genuine.

I do not mean to convey by that, that that was the

only matter in dispute but the range of matters in
dispute seems to have been somewhat reduced by the

matters to which I have referred.

Your Honours, could I move from that to a

question Your Honour Justice Toohey asked me

earlier, and that was in relation to Part 51

rule 16 and Your Honour observed that it is framed

in the negative.	Your Honour, that does seem to be
the relevant provision.	As our learned friend

mentioned, section 75A of the Supreme Court Act

does not apply to appeals from juries. That
appears from section 75A(2)(b).	The only other

possibilities are the provisions in the bracket of

provisions, sections 101 to 108 of the Act.

Your Honours, whilst sections 106 to 108 apply

specifically to appeals from juries, the provisions

do not really seem to touch the point, if I can put

it that way shortly.	Your Honours have, I see,
copies of the enactments.	I was going to give

Your Honours copies of the particular provisions but - - -

TOOHEY J: Section 102 seems to convert what might otherwise

be an application to set aside a verdict into a

conventional appeal.

Calin(4) 56 1/3/91

MR JACKSON:  Yes, Your Honour.

TOOHEY J: But, you are saying, Mr Jackson, that that is not

the section that creates the right of appeal, are

you, that that is to be found in some part of

section 75A?

MR JACKSON:  No, Your Honour, I am sorry. What I was

seeking to say was this: Your Honour observed that

the rule, Part 51 rule 16, to which I referred, was

framed in the negative in the sense - I will not go

back to it - but Your Honour was asking, "Is there

a provision that indicates the circumstances in

which the court - what the court's power are?"

TOOHEY J: Yes.

MR JACKSON:  Your Honour, the short answer is that there

does not seem to be a provision which really does

that and the Act and rules seem to be framed, as it

were, on the assumption that they are referring to

accepted concepts, if I can put it that way,

without there being a specific power of the nature

to which Your Honour referred, so one really looks

at Part 51 rule 16 as doing -

TOOHEY J:  The scheme seems to be, and I say this without

knowing much about the Act, but section 101 creates

a right of appeal. Section 102 converts the

application to set aside what would otherwise be an

application to set aside a jury verdict into an

appeal. Neither section really throws any light

upon the circumstances in which an appeal might be

allowed or otherwise.

MR JACKSON: That is so, Your Honour, and when one comes to

the other provisions which deal with appeals from

juries, section 106 seems to have an operation in

relation to a limited class of matters.

Section 106(4) appears to assume the existence of

powers elsewhere to deal with appeals in a
particular way.	Then, section 107 is a section

which has provisions which are cumulative, in
affect. But the commencing point is section 107(a)
which is dealing with the issue of, in effect,

damages or debt or matters of quantum. Then, when one comes to section 108, Your Honours will see in

section 108(2), it deals with the case where the

Court of Appeal is of the view that on the evidence

given at the trial of verdict that the plaintiff

could not be supported and the proceedings should

have been dismissed, the court can do so.	Then the
obverse of that appears in section 108(3).

Now, Your Honours, if I can just go back. If

Your Honours have the page number 1168 in that

volume, Your Honours will see that in the note to

Calin(4) 57 1/3/91

section 106 directs one to the annotations to

section 75A which does not deal with juries, of

course, and then Part 51 which is the general

appeal part of the rules. If one goes to the

appeal parts of the rules, the one that appears to

have the closest relevance to the present case is

Part - - -

MASON CJ: Is 51.16.

MR JACKSON:  Yes. Now, Your Honours, my learned friend said

that the trial ran on a particular basis.

Your Honours, that appears to be, from what he

said, based on a number of things:  one is that so

far as the start of the trial was concerned, on the

judge asking for the name of a particular case and

being told about it, but the allegation was not

withdrawn. And, Your Honours, it is difficult to

see that the evidence might have been different or

have been affected by it.

Your Honours, could I go also in this regard

to the participation of the plaintiff's counsel at

the trial in settling the questions. It is clear

that that took place in the sense that the judge

apparently indicated what he thought were the
appropriate questions and they were agreed to. It
is difficult, with respect, to see that in the
particular case the agreement to the form of the

questions adds much to it.

Your Honours, there are two other matters that

I wanted to mention; one was in relation to the

evidence my learned friend has referred to

concerning the banana skin, and could I just give

Your Honours two references: one is at page 188

between lines 10 and 15, it is Miss Marchant's

evidence dealing with the circumstances when the

ambulance man came - I am sorry - she had gone into

the foyer and she was then asked, about line 11: At some stage ..... did you see a banana skin?

And a patron brought out from the cinema a banana skin and put it into a garbage bin. Then,

Your Honours, at page 194, there was some evidence

given of the events which occurred so far as she was concerned during the period between the time when she had ceased to read a book and the time

when the 5 o'clock session started, and,

Your Honours, the evidence was there were two

theatres side by side. I do not mean by that they

were the more modern style of theatre where one

finds a number of theatres in a complex, but there

were two theatres side by side, facing on to the

street, and they were both owned by the respondent,

the Greater Union organization, and one of the

Calin(4) 58 1/3/91

things she did in the period was to go next door to

the other theatre and Your Honours will see, at

page 194, lines 15 through to 25 that she went into

the Paramount Theatre which was next door at that

time.

Now, Your Honours, I said there were two more

matters; in fact, there are still two more matters,

one of them is a very short thing, Your Honours.

My learned friend has said that there is something

more they want to have the opportunity to put

before the Court. Your Honours, could I say in

relation to that, first, this is the opportunity

and it is an opportunity which, in our respectful

submission, has not been taken? The second thing

is that we are really put by that submission in the

worst of all worlds; we do not know what it is, it

is obviously that is thought not to be good for us;
the Court is informed of it, without anyone having
the slightest knowledge of what it is and we are
not in a position to rebut it.

Your Honours, finally, in relation to the question of the ultimate course of the proceedings,

my learned friend referred to a number of matters

which go to make up the prejudice, but in the end,

Your Honour, the plaintiff who, if she is right, is

an injured person, has been in the situation where

our submissions about the standard of care are

correct, and she has been put in a position where

her case has never been tried on a correct legal

basis by a tribunal of fact.	Those are our
submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in this matter.

AT 3.11 PM THE MATTER WAS ADJOURNED SINE DIE
Calin(4)	1/3/91