Fitzpatrick v Walter E Cooper Pty Ltd

The appellant, Mrs Fitzpatrick, brought an action in the Supreme Court of Victoria against the respondents, Walter E. Cooper Pty Ltd and William Lamping, seeking damages for the death of her husband. The deceased was killed when a bag of plaster fell from a skip being hoisted by men employed by the defendant company. The plaintiff alleged negligence on the part of the defendants. The defendants denied negligence and raised defences of contributory negligence and voluntary assumption of risk. The jury returned a verdict for the defendants, and the Full Court of Victoria dismissed the plaintiff's appeal. The plaintiff then appealed to the High Court of Australia.

The legal issues before the High Court were whether the jury's verdict was unreasonable on the evidence presented, particularly in light of the principle of *res ipsa loquitur*, and whether the trial had been vitiated by a remark made by the defendant's counsel during his address to the jury concerning the plaintiff's rights under the Workers' Compensation Act. The plaintiff argued that the accident was of a kind that would not ordinarily occur without negligence, and that the defendant had failed to provide a sufficient explanation to rebut the inference of negligence. Furthermore, the plaintiff contended that the reference to workers' compensation had improperly influenced the jury.

A majority of the High Court (Latham C.J., Starke and Dixon JJ.) held that the verdict should stand. The Court reasoned that while the principle of *res ipsa loquitur* applied, the jury was entitled to accept the defendant's evidence that all reasonable precautions had been taken, even though the precise cause of the accident remained unexplained. The Court found that it was open to the jury to believe the defendant's testimony regarding the care taken in securing the skip and its contents, and to reject the defendant's assertion that the accident was therefore impossible. Regarding the remark about workers' compensation, the majority found that the trial judge had adequately dealt with the matter by directing the jury to disregard it, and that the plaintiff's counsel had not sought further intervention, such as discharging the jury. Therefore, the trial was not considered to have miscarried.

The appeal was dismissed, with the majority of the High Court affirming the decision of the Supreme Court of Victoria. Rich and McTiernan JJ. dissented, with Rich J. finding the verdict unreasonable and suggesting a new trial should be ordered.