Craig Andrew Rosenkranz v John Patrick Dessaix

[2003] NSWSC 1085

CITATION:	Craig Andrew Rosenkranz v John Patrick Dessaix [2003] NSWSC 1085
HEARING DATE(S):	20/11/2003
JUDGMENT DATE:	20 November 2003
JUDGMENT OF:	Dunford J
DECISION:	Application to direct verdict - judgment for defendant refused.
CATCHWORDS:	Jury - civil proceedings - application for directed verdict - relevant principles applicable
LEGISLATION CITED:	Courts Legislation Amendment (Civil Juries) Act 2001 Supreme Court Rules Pt 34 r 8(2)
CASES CITED:	Carlisle v Mullrai Pty Limited & Ors [2000] NSWCA 190 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 Hocking v Bell (1944) 44 SR (NSW) 468, (1945) 71 CLR 430, (1947) 75 CLR 125 PC Hunt v Watkins [2000] NSWCA 229, 49 NSWLR 508 Mailman v Ellison (Court of Appeal - 25 November 1993 - unreported) March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506 Naxakis v West General Hospital [1999] HCA 22, 197 CLR 269 Roads and Traffic Authority of New South Wales v Jackson [2003] NSWCA 40 Rundle v The State Rail Authority of New South Wales [2002] NSWCA 354 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Craig Andrew Rosenkranz v John Patrick Dessaix
FILE NUMBER(S):	SC 11840/92
COUNSEL:	J J Graves SC & S W Davis- Plaintiff K P Rewell SC & A R Beardow - Defendant
SOLICITORS:	T D Kelly & Co - Plaintiff Phillips Fox - Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

THURSDAY 20 NOVEMBER 2003

11840/92 CRAIG ANDREW ROSENKRANZ v JOHN PATRICK DESSAIX

JUDGMENT On application for verdict for the defendant

1 HIS HONOUR: At the close of the evidence the defendant has made an application pursuant to SCR Pt 34 r 8(2) which provides that at the end of the evidence a party, not being the beginning party, may move the Court for judgment in his favour on the ground that, on the evidence given, judgment for the beginning party “could not be supported”.

2 The facts in this case are hardly in dispute. The defendant built a curved ramp for his children and their friends to ride their skateboards on, and it was used by them frequently for that purpose over a period of (on the version most favourable to the plaintiff) about three months. Its dimensions were a total height of approximately 700 to 750 millimetres, by a width of 1600 millimetres, the bottom of the curve was at an angle of about 20 degrees, the middle an angle of about 30 degrees and the top section at an angle of about 45 degrees.

3 Not only was it used in the driveway of the defendant's house, where it was normally kept, but it was portable and was often taken by the defendant's children and their friends along a pathway adjoining the defendant's property to the dead end area of an nearby cul-de-sac, Parukala Place, where it was set up over the kerb and used there for skateboard riding. None of defendant's sons or their friends had ever used it other than for skateboard riding and neither they nor the defendant had ever seen any other person riding a push bike or attempting to ride a push bike on or over it.

4 The location where it was placed in Parakula Place did not obstruct or restrict access to the pathway adjoining the defendant's property and leading from Parukala Place to Collins Street.

5 On Sunday 23 November 1986 at about 5.30pm the plaintiff rode his push bike from Darius Street into Parukala Place, intending to ride along the pathway at its end towards his home. On seeing the skateboard ramp he decided to ride up and over it, but his attempt to do so failed and he fell on the ground suffering spinal injuries resulting in quadriplegia.

6 Mr Rewell SC submits that the jury acting reasonably and properly directed could not, without error, find a verdict for the plaintiff.

7 He submits that, although the defendant in constructing the ramp owed a duty of care to those for whose use it was intended, that is his sons and their friends, he had no duty to persons unknown who might use it or rather abuse it in a stupid manner for which it was not designed.

8 Whilst there is always the possibility that any object however and wherever placed may be abused by someone acting stupidly, that is not, he submits the test of forseeability of risk postulated by Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.

9 He submits that the ramp was not inherently dangerous if used for its proper designed purpose, it was not reasonably forseeable that it would be used for the purpose for which it was in fact used by the plaintiff, and he points out that not only did the plaintiff use it for riding a push bike, but he also used it as a jump, and did so without examining it first.

10 He therefore submits that, taking all the evidence most favourable to the plaintiff, it would not be open to the jury acting reasonably to find that there was a forseeable risk of injury to the plaintiff or to a class of persons of whom the plaintiff formed part; therefore, there could be no duty on the part of the defendant to take care to avoid injury to the plaintiff and, therefore, no negligence on the part of the defendant.

11 These are all weighty submissions and in support of them he referred me to the judgments in Carlisle v Mullrai Pty Limited & Ors [2000] NSWCA 190, Roads and Traffic Authority of New South Wales v Jackson [2003] NSWCA 40 and Rundle v The State Rail Authority of New South Wales [2002] NSWCA 354. But these were all appeals by way of rehearing from decisions of single judges sitting without juries.

12 The test for an application of this nature at the close of the evidence in a jury trial appears from cases such as De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 3 where Jordan CJ said:

"If the Judge is of the opinion that the evidence given on behalf of the plaintiff, assuming it to be accepted by the jury, would be incapable of supporting a verdict for the plaintiff, either because it supplies no evidence of some essential matter or provides only such a mere scintilla of evidence that reasonable men could not act on it assuming that they accepted it, it is his duty to nonsuit or, if the defendant does not go into evidence and supply the deficiency in his case, to direct a verdict for the defendant."

13 This is still the proper test to be applied under the current Pt 34 r 8: Mailman v Ellison (Court of Appeal - 25 November 1993 - unreported), applied in Hunt v Watkins [2000] NSWCA 229, 49 NSWLR 508.

14 The subject matter was recently considered by the High Court in Naxakis v West General Hospital [1999] HCA 22, 197 CLR 269. The Chief Justice and Gaudron J expressly accepted that the test was as laid down in De Gioia.

McHugh J at [40] said:

"The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed."

Kirby J, on the other hand, expressed the test thus at [57]:
"... the question (is) ‘not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the o nus of proof is imposed'."

15 Whilst at [58] his Honour summarised some of the more common phraseology used relating to the issue.

16 All the justices rejected the proposition that a mere “scintilla” of evidence was sufficient to defeat the defendant's application and particular warnings were given in respect of cases which depended on drawing of inferences from facts provided by direct evidence.

17 But I do not see this either as a "scintilla" case or an "inference" case. The facts are virtually agreed and the issue is whether it is open to the jury acting reasonably on those proved (and virtually agreed) facts to reach certain judgments or conclusions; and as Kirby J pointed out at [64], there can be a sharp divergence of judicial opinion on whether a particular finding of a jury was reasonably open, citing the judicial tally in the various courts in the well known case of Hocking v Bell (1944) 44 SR (NSW) 468, (1945) 71 CLR 430, (1947) 75 CLR 125 PC. I also note what his Honour said at [65] to [68] where he concluded:

"But only in a clear case should the judge assume the responsibility of depriving all parties of the jury's verdict and directing or entering judgment in favour of one party."

18 It seems to me that the problem of determining whether a finding is "reasonably open" to a jury is compounded when one of the issues involved is whether something was "reasonably forseeable" and, if so, what was the "reasonable response" to such forseeable risk.

19 For these reasons, and whatever views I may have as to whether the plaintiff has established negligence on the part of the defendant, I am not satisfied that it would not be open to the jury, acting reasonably, to find the defendant negligent.

20 In particular, it seems to me, that issues of reasonable forseeability, reasonable response to such forseeable risk of injury, if any, and issues of causation, the last mentioned depending on the “common sense and experience” approach postulated in March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506, are essentially matters for assessment by the lay, rather than by the legal or judicial mind, notwithstanding that in respect of recent and future cases Parliament appears to have taken a different view: Courts Legislation Amendment (Civil Juries) Act 2001, no 124.

21 The defendant's application to withdraw the case from the jury and direct the entry of judgment for the defendant at this stage is therefore dismissed.

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Last Modified: 12/02/2003