Dulux Australia Limited v Emirall Ahmet

[1990] HCATrans 239

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S70 of 1990

B e t w e e n -

DULUX AUSTRALIA LIMITED

Applicant

and

EMIRALL AHMET

Respondent

Application for special

leave to appeal

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 1990, AT 3.07 PM

Copyright in the ·High Court of Australia

Dulux 1 12/10/90

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

my learned friend, MR W.K.L. DODD, for the

applicant. (instructed by Hunt & Hunt)

MR P.J. KENNY, QC:  May it please the Court, I appear with

my learned friend, MRS I. RYAN, for the respondent.

(instructed by Champion & Partners)

DEANE J:	Mr Jackson.
MR JACKSON:	Your Honours, may I hand to the Court an

outline of submissions which we wish to make.

DEANE J:	Thank you.
MR JACKSON:	Your Honours, I should say that together with the outline of submissions is a copy of a further
affidavit which simply deals with one aspect which
was not sufficiently emphasized in the material before the court.

Your Honours, as is apparent from the outline

of submissions, this is a case where we accept at the start that the court has endeavoured to apply

established principles but, in our submission,

either the court has, in doing so, arrived at a

result which is unjust to an extent where the Court

should interfere in the interests of justice in the

particular case. Alternatively, it may be that the
result of it is that the court, in the guise of
applying the right principles, in fact, has applied

incorrect principles but, on the face of it, that

does not appear.

DEANE J: But the relevant question being reasonably open on

the evidence before the jury or, how would you put

it?

MR JACKSON:  Your Honour, yes. Your Honour, I need to go in

relation to the two aspects just a little to the

findings of the Court of Appeal and to the summing

up to the jury and may I proceed to do so

immediately?

Your Honours, the respondent sued on two

causes of action. They arose from injuries which

he alleged he had sustained by slipping in the

course of his employment by the applicant.	The
first injury, the more minor one, arose on
30 August 1974.	He returned to work after a few

weeks although it may have been that economic

circumstances brought about his return rather

earlier than might otherwise have been the case.

However, he was back at work for a period of nearly

18 months when the second injury occurred and that

was at the end of the next year, 22 December

Dulux 2 12/10/90

1975.The second injury was much more serious and he

has not worked thereafter.

Your Honours, in respect of the two incidents, there was evidence, indeed strong evidence, to

support a number of propositions adverse to our

cause. They were that the floor in the relevant

area was slippery; that the respondent had
sustained some injury on each of the occasions in

question and, thirdly, that the risk of injury to

some person was foreseeable and, indeed, might have

been avoided by steps which an employer could have

taken without undue difficulty.

Your Honours, that left one further element

which the respondent's case had to satisfy and that

was to satisfy the jury, for this was a jury case,

that the injury had been caused by the condition of

the floor. Now, Your Honours, in that regard no

witness had seen either fall occur and it was thus

critical to the respondent's case that he was

believed by the jury on that aspect and,

Your Honours, he was not.

In the Court of Appeal the only ground of

challenge was that the verdict of the jury was

against the weight of the evidence. And,

Your Honours, may I mention in passing that there

was no challenge to any misdirection by the judge

and I want to indicate a passage in the judge's

directions in just a moment.

DEANE J: In relation to the first incident, and we really

only have the benefit of the judgments - and I
should not have said that - I have really only read

the judgments closely. What do you say the jury

might have thought: that he made up the statement

that he had slipped or - I am just wondering how -

how was it put to him in cross-examination and how

would you put it as to the reasonable hypothesis

that he had not injured himself - well, we know he

had injured himself; that he had not slipped in

the incident where he said he had slipped and

injured himself?

MR JACKSON:  Yes. Your Honour, we would simply put it as

being that the jury was entitled not to believe his

evidence that he had slipped on the floor.

DEANE J:  And that was how it was put?

MR JACKSON: Yes, Your Honour.

DEANE J: Which means what?

MR JACKSON: That may be contested but I - - -

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DEANE J: Can I just understand it? Did not believe that he

had slipped at all or might have believed he had

slipped somewhere else or was it put at the end of

the case that you cannot believe anything at all

this man says?

MR JACKSON:  Your Honour, what was put appears at page 87

and page 88 and if I could go to about line 13. It

was put:

that at most the plaintiff slipped on the
floor on the first occasion without having
slipped on any particularly slippery material.

And then, Your Honours, a little further down it was put:

that you would not be satisfied either that

the plaintiff had suffered an injury in the

way he says on the first occasion, or in the

way he says on the second -

and, Your Honours, that is essentially it.

TOOHEY J:  Mr Jackson, was the injury sustained on the first

occasion one that might have been caused by

something other than slipping? For instance, could

it have been simply a strain while the plaintiff

was engaged in moving this container?

MR JACKSON:  Your Honour, if I could just find the injury.

It is referred to at page 94 between lines 6 and

10.       He claimed:

he slipped on the wet floor and fell ..... he

claimed to have injured his back, elbow and
head.

So that, Your Honour, it is consistent with a fall

which might or might not have been a slip.

TOOHEY J: Well, that is if you take the claim at its face

value. I was really thinking in terms of any

medical evidence that might have either been

consistent or inconsistent with a slip.

MR JACKSON:  Your Honour, I think it is right to say that

the evidence perhaps did not really go beyond what

is said in that assertion in the sense of it

remaining something that might have been caused by

one of a number of things, a slip or a fall to put

it shortly. Your Honour, that is what I understand

to be the position.

DAWSON J:  The injury was consistent with a slip or a fall?

Dulux	4	12/10/90
MR JACKSON:	Yes, Your Honour.	The injury might have been

caused by a slip. Your Honour, it was a case

where, no doubt, the plaintiff, as he was, got very

close, perhaps, but in the end the jury did not

believe him in respect of either injury.

DAWSON J:  But in the end they did not find it proved that

the injury was caused by the negligence of the

defendant? Is that not - - -?

MR JACKSON:	Yes.
DAWSON J:	And since the negligence was alleged to be a

slippery floor, it means they disbelieved that.

MR JACKSON:  Yes, it is the ultimate question - the last

question, if I can put it that way, of causation,

Your Honour.

TOOHEY J: There is a bit of a problem, it seems to me, in

the way in which the questions were asked.	They
tend to wrap up two questions in one.	To ask was

the injury caused by the negligence of the

defendant, if the jury says "No", what are they

saying? That there was no injury or that there was

an injury but it was not caused by the negligence

of the defendant?

MR JACKSON: Well, Your Honour, it is obvious it involves a

number of questions and the questions are set out

at page 97. Your Honour is right in saying that in

respect of each of the possible causes of action

for each injury, what was done was simply to ask a

round question - - -

TOOHEY J:  A rolled-up question.

MR JACKSON:  Yes. Your Honour, there was no objection taken

to the questions and they were questions by

agreement, as we would understand it, but the

position which obtains in relation to that, of

course, if that if one looks at the matter in the

way in which the Court of Appeal did then whilst it

may have been open to the jury in a theoretical

fashion to take a number of views of the different
aspects of the case, if one looked at the evidence,

in the end the case came down to the narrow

question that I was about to turn to and that is

what had or had not been proved in relation to the

question of causation in the end, Your Honour.

Your Honours, I was going to say that the only

ground of challenge in the Court of Appeal was not
one of misdirection, for example, but simply that

the verdict of the jury was against the weight of

evidence. That is at page 93, lines 25 to 27. And

Your Honours, all the members of the court were of

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the view that the challenge failed in respect of
the second injury. That appears at page 84,

Mr Justice Samuels, lines 11 to 14,

Mr Justice Priestley, page 92, line 11 and
Mr Justice Clarke gave the leading judgment on that

point at pages 99, line 1, to page 102, line 16.

May I refer Your Honours to two passages in

His Honour's reasons for judgment dealing with the

second injury but germane to the first?

Your Honours, they are at page 100, lines 20 to 26, where he said the evidence was not corroborated and

the claim for damages rested heavily on the

uncorroborated evidence. And then at page 102, at

about line 11, he said he failed:

to see how it can be said that their verdict,

which reflected a rejection of the appellant's

evidence, could be held to be unreasonable -

and he is referring there to the second incident but it is clear that in His Honour's view, as in

the view of the other members of the Court of

Appeal, it reflected a rejection of the

respondent's evidence.

Now, Your Honours, in relation to the second

incident, Mr Justice Clarke's views - he was in the

minority - appear at page 102, lines 17 - - -

TOOHEY J: Second or first?	I think you said "second".
MR JACKSON:	Your Honour, I am sorry, I meant to say the

first. In relation to the first incident, the

court was divided.	Mr Justice Clarke was the
minority and his views on that were consistent	with
his views in relation to the second incident.	They
appear, again, on page 102 in the second-half	of
the page and where he said, lines 24 to 25:

The submission, in my opinion, overlooks the

need for a plaintiff to prove his case.

He set out the second submission that was made at

the top of the next page and then after discussing

the various principles applicable, concluded at

page 106, commencing at line 13:

that the only purpose of the third question -

to which he referred -

was to invite disbelief in the appellant's

version. Having regard to the pleadings, the

cross-examination, the general attack on the

appellant's credibility, which included the

challenge to his version of the second

Dulux 6 12/10/90

occurrence, and the failure of counsel for the

appellant to suggest at the trial that there

had been any breach of the rule I do not think

his present submission can be sustained.

And then, Your Honours, I would ask Your Honours to

read the last paragraph on that page also.

Your Honours, at the top of page 109 he said:

it was open to the jury, acting reasonably, to

reject the appellant's evidence then the

verdict must stand.

Now, Your Honours, the essential parts of Mr

Justice Samuels' reasons for judgment the other way

are at page 85 at line 22 in the passage which goes

through to page 86, line 29. And then,

Your Honours, of some importance, at page 89,

line 17, His Honour said:

the respondent was of course relying, as the

summing-up indicates, upon flaws in the

appellant's credit developed from the medical

evidence, it being a trial in which -

and he lists the witnesses.

It was also probably open to the respondent to

put to the jury that they should not be

satisfied that the appellant had suffered an

injury "in the way he says on the first

occasion", that being the way the learned

judge put it, because this is merely another

way of building upon such assistance as the

report of injury form provided.

And, Your Honours, finally, at page 90, in the

passage from line 7 to 25 where His Honour goes on

to say:

There was evidence, overwhelmingly one way,

which established that on the first occasion

the appellant had slipped, had thereby fallen
to the floor, and had sustained injury; and

that this had occurred in an area where the

floor was slippery by reason of the thinners used to remove the substantial quantities of paint regularly deposited there by the

respondent's manufacturing process.

It was:

quite unreasonable ..... to reject the

inference.

Dulux 7 12/10/90

Now, Your Honours, His Honour says, at page 89

that it was open to put to the jury that the
relevant inference should be rejected based upon

issues going to credibility. Now, Your Honours, if

that were so, in our submission, then, prima facie,
the jury was entitled to accept that submission.

It is plain, if one looks at the verdict at which the jury arrived that their verdict must have been

based, one would think, upon a view adverse to the

respondent on the issue of credibility.

It is clear that the jury at the trial had

been invited without objection to decide whether

the respondent's injury was caused in the manner in

which he asserted. And, Your Honours, could I give

a last reference. That is at page 32 in the

summing up and the passage commences at about

line 22 and it goes through to page 34, about

line 13 and I would refer Your Honours particularly

to what appears on page 33 commencing at line 10

and going through to about line 22. And

Your Honours will see that it was put to the jury

that they might take into account the views that

they had on credibility in the case overall, from

all the evidence, in deciding the case in relation

to both incidents.

Now, Your Honours, I admit no objection was

taken, as I have said, to the summing up and there

was no appeal on the ground of misdirection in that

regard and Mr Justice Samuels accepted that the

submission was open in the passage at page 89 to

which I referred.

Now, Your Honours, the jury's verdict, as I

submitted a moment ago, is obviously based on
credibility but how could one distinguish between
the two in saying that the jury was not entitled to

take one view but was entitled to take the other

when the view at which they arrived obviously

involved a disbelief of the plaintiff in the case.

TOOHEY J: Well, there may be a difference, and this is what

troubles me about the medical evidence or, perhaps,

the absence of any reference to it, Mr Jackson. the second incident - there is reference, at

line 3, to:

An alternative hypothesis which was

suggested -

namely -

that the appellant merely strained his back

while endeavouring to tilt the container.

Dulux 12/10/90

Now, for instance, if there was medical evidence as

to a back strain in relation to the second

occasion, it may not be hard for the jury to

conclude that there was no slip, that there may

have been personal injury by accident in a worker's

compensation sense but nothing which really

attracted a finding of negligence. But in relation

to the first incident, there is very little left

unproven by the end: you have got a slippery floor

and if you have got a plaintiff who appears to have

sustained an injury through a fall and is seen

almost immediately afterwards - I mean, it may not

matter a great deal how he sustained the fall

unless it is suggested to him he was doing some

sort of escapade of his own.

MR JACKSON:  One might, perhaps, accept that, with respect,

with a reservation which I will leave for the

moment, but if one had a case where there was

nothing else - but if you have a case where you

have the plaintiff's evidence being considered not

in relation to one incident but in relation to two
incidents and you have a situation where the jury
is invited to take into account their view of his

credibility in relation to both incidents and they

are against him in relation to one because they
accept - whether it be an alternative hypothesis or
they just do not believe him - Your Honour, it is

not much of a step for them to say, "Well, we don't

believe him on that.	We don't believe him on the
other one either.

TOOHEY J:  No, but if they do not take that step, on what

basis do you argue that the verdict should stand?

MR JACKSON: Well, I am sorry, Your Honour, they did take

that step; they did not believe him on either.	The
Court of Appeal reconstructed the case.

TOOHEY J: Yes, I put that badly. Your argument is that

they were bound to take the step or it does not matter whether they were bound or not, they did appear to have taken it.

MR JACKSON:  They did. Now, Your Honour, it may be that

before one had the jury verdict, the jury could, if
they wanted to in the jury room, parse and analyse
the case and arrive at different results but they
did not and it is obvious, in the light of the

case, the reason why they did not was they were not

satisfied he was telling the truth.

DEANE J: But what we have is two members of the Court of

Appeal thinking, in view of all the other evidence, the conclusion of the jury in the first incident

was quite unreasonable. One member of the Court of

Appeal who obviously appreciated the force of the

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plaintiff's evidence on the first instance saying

he was not prepared to say it was unreasonable for

the jury to conclude as it did.

MR JACKSON:  Yes.

DEANE J: Well now, dealing simply with the first incident,

without using strong language, why on earth should

we get involved in that dispute?

MR JACKSON: Well, Your Honour, could I say for two reasons.

If it were that one could say that what emerged

from the judgment of the majority in the Court of

Appeal was simply a difference of view, for

example, in relation to a one-incident case, what

Your Honour says would be correct, with respect.

But there are differences in this case, the first

of which is that the approach taken by the majority

was one in which they had first expressed the view

that the submission that he should not be believed

was one that it was open to make in the

circumstances.

DEANE J: But, of course it was. I mean, if counsel are not

to be allowed to make a submission unless a court

of appeal at the end of it thinks that it should
reasonably be accepted, we would have a quite

extraordinary state of affairs.

MR JACKSON:  Your Honour, I am sorry, I am not making myself

clear. The way in which it was put by

Mr Justice Samuels, in our submission, indicates

that he was of the view that the submission, in our submission perhaps I should say, was one that could

be both put and accepted but yet - - -

DEANE J:  I did not quite read it that way, I must confess,

but perhaps that is what he - you see, the

respondent was certainly entitled to put to the

jury that the appellant had not mentioned in the

report that he had slipped on some slippery

substance.

MR JACKSON:  The second thing I was going to mention was

this. As Your Honour will see, again at page 89,

between lines about 15 and 30, that what is made

apparent is that the case that was being put was

one which depended on credibility derived from a

larger part of the evidence than the particular - -

DEANE J: But, Mr Jackson, if you read from line 10,

His Honour is not really saying that that was a

view that was open. He says he was entitled to put

that particular point to the jury but that would

have been:

Dulux 10 12/10/90

a submission of remarkable poverty. I am

doubtful that he was entitled to suggest that

the appellant had not slipped in that way.

MR JACKSON:  But he goes on to say, Your Honour, about

line 22:

It was also probably open to the respondent to put to the jury -

and so on. Now, Your Honour, if it was open -

well, it is a matter of interpretation, no doubt.

We would submit when he says that that what he is

saying is they are submissions that could properly

be put to the jury. It is not much point in

putting them to the jury if .the jury cannot accept them.·

DEANE J: But what His Honour is doing is saying, "This can

be all put but at the end when I stand back and

look at all the evidence it seems to me that in the

context of all the evidence and whatever

submissions might properly be put, it was quite

unreasonable for the jury to find against him in

relation to the first incident."

MR JACKSON:  Yes. Well, Your Honour, our submission is that

it is very difficult, indeed, to say that in

circumstances where there is the second incident

where the jury was perfectly entitled to - it is

held in the court - take the view which they did

and where the issue of credibility is one which is

tied up at the trial.

DEANE J: Well, of course, that is the double-edged sword,

so far as you are concerned, is it not, in that the

more you tie the two incidents together in your

first argument, the more difficult it becomes to

attack the conclusion that if there should be a new

trial on the first incident, there should be a new
trial generally?

MR JACKSON: Well, with respect, Your Honour, no. If we are

right in relation to the first one, the second one

does not arise. If, on the other hand, we are

wrong, then a situation which one has is not
something such as should you do liability and

quantum together, it is whether you have got two

causes of action, one of which the plaintiff has

lost.

DEANE J: Well, you might take us to that aspect of it.

DAWSON J:  Was that question canvassed before the Court of

Appeal, Mr Jackson, on the form of order which should be made?

Dulux	11	12/10/90
MR JACKSON:	Your Honour, I understand not.	The form of

order that was made Your Honours have seen at the

bottom of page 90 and the top of page 91.

Your Honours, in our submission, it is one which

was, with respect, quite inappropriate to the

proceedings because there were, as I submitted more

shortly a moment ago - it was not a case where the

court had to decide whether it should remit a whole

case, for example, liability and quantum because

quantum might cast light on liability, in that

sense. What it was was a case where the plaintiff

sued on two causes of action; the action was heard

together; the plaintiff lost on what was really

the major cause of action and in the Court of

Appeal it was held that judgment should not be set

aside.

DEANE J: But you would not contest, would you, that if a

jury, dealing with related issues and so far as

damages are concerned, overlapping issues, is shown

to have acted quite unreasonably in reaching a

verdict for the defendant, on the first issue - and

one can only speculate about whether the verdict

was influenced by impermissible prejudice or what
it may have been, if that finding be correct you

would not contend, would you, that it is not open

to an appellate court to say that in these

circumstances the proper order is that there be a

new trial as to both issues before a jury that will

be prepared to act reasonably?

MR JACKSON: 

Your Honour, I do not dispute the existence of

the power to order it. What I submit, with
respect,. is that the exercise of the power in this
matter in the particular case - and I restrict

myself to the particular case - is one which simply

could not be justified and, Your Honour, it simply

could not be justified because all three members of
the Court of Appeal unanimously were of the view -

and, Your Honours, I have not gone in any detail to

the decision on that point - that, to use the words

of Mr Justice Samuels, "the jury's findings weren't open to challenge." That is at page 84. And,

Your Honours, in those circumstances there is no hint in the judgments in the Court of Appeal that

there was anything at all wrong with the decision

on those points.

DEANE J: Except that the jury had acted unreasonably in

relation to the related count.

MR JACKSON:  Yes, Your Honour, but the court was saying two

things: that the jury had not acted unreasonably

in relation to the major count, if I can put it

that way.

Dulux 12 12/10/90

DEANE J: But it did not say that. It said it did not

appear, from the evidence in relation to the second

count, that the jury had acted unreasonably.

MR JACKSON:  Your Honour, I am sorry. What the court said

was, at page 102, that the judgment of

Mr Justice Clarke was accepted and about line 11,

he said:

I fail to see how it can be said that their

verdict, which reflected a rejection of the

appellant's evidence, could be held to be

unreasonable or to indicate a failure on the

part of the jury to perform their duty.

Now, Your Honours, I am conscious of the fact

that it is expressed in the negative but the court

is satisfied in terms that the verdict of the jury
is not unreasonable and did not indicate a failure

on its part to perform its duty. Well, now,

Your Honours - - -

DEANE J:  Mr Jackson, I am interrupting you but only to try

and confine the matter to sort of essential things.

But Justice Clarke had to say that because he found

that there was nothing to establish that the jury

had acted unreasonably on the first count.

MR JACKSON: Well, Your Honour, I am sorry, but the other

members of the court agreed with him. His was the

judgment on this point.

DEANE J: Yes, but all the other members of the court are

saying "it was open to the jury acting reasonably",

to have found for the defendant on the second

count. That was the question on the second count.

MR JACKSON:  Your Honour, I am sorry to sound carping,

Your Honour, but could I just say that what

Mr Justice Samuels said at page 84, lines 13 to 14,

was that he agreed:

with his conclusion that the jury's findings

in respect of the second incident are not open

to challenge.

And what was said by Mr Justice Priestley was that

he agreed with Mr Justice Samuels.

Now, Your Honours, if I could perhaps use the

expression again: one would need, with respect, to
parse and analyse a little unduly what was said by

Mr Justice Samuels to think that he was seeking to

dissent in any way from what had been said by

Mr Justice Clarke in relation to the second
incident and what occurred was a difference of view

in relation to the first and in relation to a very

Dulux 13 12/10/90

narrow point, namely, that which appears at

page 102, lines 24 to 25. Mr Justice Clarke had

one view; the other judges had another view on that

point.	Your Honours, I cannot advance the point
further.

DEANE J: Thank you, Mr Jackson. The Court need not trouble

you, Mr Kenny.

The question for the New South Wales Court of

Appeal in the present case was whether the conclusion of the jury was one which was reasonably open on the evidence before them. All members of the Court of Appeal correctly identified that question. That being so, the central issue in the case is whether in the context of the particular facts the answer given by the majority of the Court of Appeal to that question in relation to the first

incident was correct. The Court is not persuaded

that in all the circumstances of this case it would

be appropriate to grant special leave to appeal for
the purposes of considering that narrow issue.

In so far as the applicant seeks to attack the decision of the Court of Appeal on the grounds that Their Honours' order of a new trial should have

been restricted to the first incident, the Court is

of the view that it was, in the particular

circumstances of the present case, open to the

Court of Appeal to make the order which it made.

Accordingly, the application for special leave to appeal is refused.

MR KENNY:	May I ask for an order for costs, Your Honour?
MR JACKSON:	I have nothing to say about that, Your Honour.
DEANE J:	The application for special leave to appeal is

refused with costs.

MR KENNY: If the Court pleases.

AT 3.43 PM THE MATTER WAS ADJOURNED SINE DIE

Dulux 14 12/10/90