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Liftronic Pty Ltd v Unver

Liftronic Pty Ltd v Unver

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
LIFTRONIC PTY LIMITED APPELLANT
AND
EROL UNVER RESPONDENT
Liftronic Pty Limited v Unver [2001] HCA 24
3 May 2001
S102/2000
ORDER
1.Appeal allowed.

2.Set aside the Orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2000.

3.Remit the matter to the Court of Appeal for determination, in accordance with the reasons for judgment in this Court, of the nett amount for which judgment should be entered, and of the question of costs in that Court.

4.Respondent to pay the costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales
Representation:
B M J Toomey QC with P J Mooney for the appellant (instructed by Vandervords)
B J Gross QC with H N Kelly and S Thode for the respondent (instructed by Gibsons)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ. The issue in this appeal is whether the Court of Appeal of New South Wales erred in setting aside, as perverse, a jury's apportionment of responsibility between plaintiff and defendant in a case where there was an admittedly justifiable finding of contributory negligence.
In Podrebersek v Australian Iron and Steel Pty Ltd, this Court said[1]:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' … Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."
[1](1985) 59 ALJR 492 at 493-494; 59 ALR 529 at 532 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
I agree with McHugh J that, having regard to the manner in which the case was conducted and left to the jury at trial, it is not possible to say that it was unreasonable for the jury to place the responsibility on the plaintiff to the extent found, and to make the apportionment that they made.
I agree that the appeal should be allowed and the proceedings remitted to the Court of Appeal as proposed by Gummow and Callinan JJ.
McHUGH J. The issue in this appeal is whether the Court of Appeal of New South Wales (Mason P and Brownie AJA, Meagher JA dissenting) erred in setting aside a jury's finding that the plaintiff was 60 percent responsible for the damage that he suffered as the result of his and his employer's negligence. The majority held that 20 percent was "as high a percentage as might reasonably have been found". In my opinion, the Court of Appeal erred in setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] HCA 24
Decision Date: 3 May 2001

CaseChat Overview and Summary

Liftronic Pty Ltd appealed to the High Court of Australia against a decision of the Court of Appeal of the Supreme Court of New South Wales. The dispute concerned an employer's liability for negligence and the employee's contributory negligence, specifically the apportionment of responsibility for the damage suffered by the employee.

The High Court was required to determine whether the Court of Appeal erred in setting aside a jury's apportionment of responsibility for contributory negligence and whether the jury's apportionment was reasonable in the circumstances. The court also considered the respective roles of a jury in delivering a verdict at trial and an appellate court reviewing that verdict, particularly in relation to the conduct of the case by the parties.

The High Court held that the Court of Appeal had erred in its approach. It emphasised that contributory negligence and apportionment are questions of fact, and that an appellate court must determine appeals by reference to legal principle and the specific facts of the case, rather than by perceived factual similarities to other cases. The court noted that the Court of Appeal's reliance on the criterion of "perversity" was likely to mislead and overstate the restraint on appellate correction of error. The court also considered that the nature of the employee's departure from the employer's system of work, whether defiant or a misguided attempt to fulfil duties, was relevant to the just and equitable apportionment of responsibility.

The High Court allowed the appeal, set aside the orders of the Court of Appeal, and remitted the matter to that court for determination of the nett amount for which judgment should be entered and the question of costs. The respondent was ordered to pay the costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the Orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2000.

3. Remit the matter to the Court of Appeal for determination, in accordance with the reasons for judgment in this Court, of the nett amount for which judgment should be entered, and of the question of costs in that Court.

4. Respondent to pay the costs of the appeal to this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ (dissent) HUGH J (dissent) GUMMOW AND CALLINAN JJ (dissent) KIRBY J (dissent)

Another consideration, not irrelevant in determining the existence and extent of contributory negligence where an employee has departed from a system of work established by the employer, is whether this was done defiantly, obdurately or stupidly for some personal purpose of the worker's own. Or whether it was done out of a misguided, but understandable, endeavour on the part of the worker to fulfil his or her employment duties in a reasonable way. The former category of case will indeed permit a conclusion that the employee has contributed, by his or her own negligence, to the damage suffered. It may then be perfectly "just and equitable" to reduce significantly the worker's recovery "having regard to the claimant's share in the responsibility for the damage". But, in the latter category of case, any such reduction, to be "just and equitable", will have to take into account the fact that the worker was exposed to the risk that caused the damage in the course of pursuing the employer's economic interests in which the risks of injury to workers are part of the employer's necessary costs[70].[70]Glass, McHugh and Douglas, The Liability of Employers, 2nd ed (1979) at 224, n 54.The decision of the Court of Appeal In the Court of Appeal, Meagher JA dissented. His Honour considered that the case was "entirely covered"[71] by the decision of this Court in Podrebersek. With every respect, contributory negligence, and apportionment, are always questions of fact[72]. The invocation of a decision of this Court, in an earlier case on different facts, could not relieve the Court of Appeal of the proper discharge of its functions by reference to the facts of this case.[71][1999] NSWCA 275 at [2].[72]McLean v Tedman (1984) 155 CLR 306 at 315; SS Heranger (Owners) v SS Diamond (Owners) [1939] AC 94 at 101; Hicks v British Transport Commission [1958] 2 All ER 39; Balkin and Davis, Law of Torts, 2nd ed (1996) at 338, n 37. The second reason which Meagher JA assigned for his dissent was that he could not see how the jury's apportionment of 60% here was "in any way more perverse than the judges' apportionment of 90% in Podrebersek ... nor indeed of Brownie AJA's apportionment of 20% in this case"[73]. So far as the first stated apportionment (that in Podrebersek) is concerned, it is, again with respect, irrelevant. There are factual differences between the two cases. Appeals must be decided by reference to legal principle, not perceived factual similarities. So far as the second (the 20% favoured by the majority in the Court of Appeal) it is also irrelevant. Once the Court of Appeal concluded that it was entitled, and obliged, to set aside the jury's apportionment, it was required to order retrial of the issue or to determine its own apportionment. Complaining that it did so, after it had so decided, was therefore mistaken. Furthermore, referring to a criterion of "perversity" (as distinct from lack of reasonableness in the entirety of the evidence) was likely to mislead and to overstate the restraint upon appellate correction of a disclosed error[74].[73][1999] NSWCA 275 at [3].[74]Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41; cf Progress and Properties Ltd v Craft (1976) 135 CLR 651 at 673 where the word was used by Jacobs J (with whom Stephen, Mason and Murphy JJ concurred). Note that the word "perverse" was also used by Brownie AJA: [1999] NSWCA 275 at [14]. It was used by me in the New South Wales Court of Appeal and corrected in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41.

Ratio Decidendi

Legal Principle Established

Established by:

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