Mitchell v Australasian Hospitality Group Pty Ltd (Ruling)

[2024] VCC 181

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No.  CI-22-04612

THERESE IRENE MITCHELL

Plaintiff

v

AUSTRALASIAN HOSPITALITY GROUP PTY LTD

(ABN 98 166 917 791)

Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15, 16, 19, 20, 21 and 22 February 2024
DATE OF RULING:	29 February 2024
CASE MAY BE CITED AS:	Mitchell v Australasian Hospitality Group Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 181

RULING
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Subject:PRACTICE AND PROCEDURE – APPLICATION FOR JUDGMENT NOTWITHSTANDING JURY VERDICT

Catchwords:              Occupier’s liability – liability occupier of a motel for fall by plaintiff on the premises – leave reserved for the making of the application – application refused

Cases Cited:King v Amaca Pty Ltd [2011] VSC 422; Herald & Weekly Times Ltd v Popovic (2003) 9 VR; Naxakis v Western General Hospital (1999) 197 CLR 269; Phillips v Ellinson Brothers Pty Ltd [1941] 65 CLR 221; Hayward v Georges Ltd [1966] VR 202

Ruling:  Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie with Mr R Phelps	Henry Carus & Associates
For the Defendant	Mr J Angenent	Meridian Lawyers

HER HONOUR:

Introduction and summary

1Following an eight-day trial, on 22 February 2024, a jury of six returned the unanimous verdict for the defendant, answering “No” to Question 1 – “Was there any negligence or breach of statutory duty on the part of the defendant that was a cause of injury, loss and damage to the plaintiff?”

2Following the verdict, leading counsel for the plaintiff moved for a declaration non obstante veredicto with respect to the jury’s finding of no negligence, having obtained leave prior to the verdict. 

Legal principles

3The principles to be applied in determining an application for judgment notwithstanding the jury’s verdict are conveniently set out by Kyrou J in King v Amaca Pty Ltd.[1]

[1][2011] VSC 422

4In order for an application, notwithstanding the jury’s verdict, to succeed, the plaintiff must establish there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the defendant.[2]

[2]Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at paragraph [27] (“Popovic”); Naxakis v Western General Hospital (1999) 197 CLR 269, 274-275 at paragraph [16]

5Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded, even if the trial judge is strongly against the jury’s conclusion.[3]

[3]Phillips v Ellinson Brothers Pty Ltd [1941] 65 CLR 221 at 230 (cited in Hayward v Georges Ltd [1966] VR 202 at 205

6A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.[4]

[4]Popovic at paragraph [126]

7A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.[5]

[5]Popovic at paragraph [134]

8The principles described by Kyrou J were more expansively considered by the High Court in Naxakis v Western General Hospital,[6] wherein it was stated:

[6]Supra

“It is well settled that, where there is a jury, the case must be left to them ‘[i]f there is evidence upon which [they] could reasonably find for the plaintiff’, or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if ‘there was no evidence on which the jury could properly conclude that the plaintiff had made out his case.’ That does not mean that the case must be left to the jury if the evidence is ‘so negligible in character as to amount only to a scintilla’.  However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, ‘that the overwhelming body of evidence points to the [contrary]’.

…

Whether a defendant has been negligent is a question of fact, proof of which lies on the plaintiff.  In a trial by jury that question is decided by the jury.  But, before the trial judge can leave the question to the jury, the judge must be satisfied that the plaintiff has tendered evidence which, if believed, could induce a reasonable person to conclude that the defendant was guilty of the negligence alleged.  At one stage in the development of the common law, an issue of fact would be left to the jury to determine where there was some evidence - even ‘a scintilla of evidence’ - in support of the fact.  That doctrine applied to issues of negligence as well as to other issues of fact.  By the middle of the last century, however, it had become settled doctrine that a ‘scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury: there must be evidence upon which they might reasonably and properly conclude that there was negligence.’ So, when the defendant asks the judge to take away an issue of negligence from the jury on the ground that there is no evidence of negligence, the question is, as Willes J said in a non-negligence context, ‘not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.’

When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide.  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 that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.

…

In determining whether there is evidence upon which the jury could properly find for the plaintiff, the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence - whether directly or inferentially.  If such evidence has been tendered, it matters not that other evidence has been tendered that may contradict it even if the contradictory evidence comes from a witness, part of whose evidence is relied on to prove the negligence.  It has long been established that a plaintiff is entitled to ask the jury to accept part - even a small part - of the evidence of a witness and to reject the rest of the witness's evidence.  In Richards v Morgan, Cockburn CJ said ‘that the party ...  calling the witness ...  may do so not only without the intention of abiding by all the witness may say, but with the deliberate intention of calling on the Court or jury to disbelieve so much of the evidence as makes against him.’ Moreover, it makes no difference whether ‘the evidence as makes against him’ emerges in evidence-in-chief or in cross-examination.  It is for the jury to determine what evidence is worthy of belief.  Consequently, a plaintiff may have a case to go to the jury even though the evidence of each witness as a whole does not support the plaintiff's case and may even deny it.

…

Special caution is needed before withdrawing from the jury the resolution of a dispute of facts where the case is not one of direct proof but of the reasonable and definite inferences which are to be derived from the evidence given.  Because claims in negligence quite often depend upon circumstantial evidence and the inferences therefrom, once some evidence is adduced which, if accepted, could found a verdict in favour of the plaintiff, it requires the clearest case to support the conclusion that, for legal purposes there is no evidence at all or that the jury could not reasonably accept such evidence as exists or act upon it.”[7]

(Footnotes omitted.)

[7](Supra) at paragraphs [16], [39]-[41] and [66]

9In the present case, judgment for the plaintiff, notwithstanding the jury’s verdict, can only be entered if there is no evidence upon which the jury, properly instructed and acting reasonably, could find that there was no negligence or breach of statutory duty on the part of the defendant that was a cause of injury, loss and damage to the plaintiff.

10In support of this application, counsel for the plaintiff adopted the submissions made in relation to Question 1.

11Further, it was submitted that the “perverse” verdict could not stand in light of uncontradicted evidence that the motel provided a garden bed as a walkway for all its guests that was inherently unsafe because of its capacity to shift underfoot – “That is something that, in the State of Victoria in 2020, having regard to the duty of care owed by an occupier under s14B or the general law of negligence, required the defendant to have regard to the state of the premises reasonably to ensure they were safe.”[8]

[8]T636

12The garden bed being used as a walkway by the defendant is obviously an area where the defendant has an obligation to consider whether there is a reasonably foreseeable risk of injury.  It was submitted that question is unequivocally answered by Mr Frith’s response to the final question in cross examination – agreeing that it can be an entirely plausible occurrence for the plaintiff to suffer injury, losing her footing on the stones in the manner she described.[9] 

[9]T636

13It was submitted the circumstances of the incident were entirely plausible, involving both feet slipping in the stones and given that is the nature of the surface that Mr Frith was, or should have been aware of, it automatically followed that the plaintiff was exposed to a hidden danger that she was not aware of, but the defendant should have been aware of.[10]

[10]T637

14Counsel suspected the jury relied on the defendant’s evidence that its staff walked on the loose stones and they thought it was ok and “they could not be expected to think anything further than that.”[11]  It was submitted that was simply not, in 2020, a compliance with the obligations of an occupier when all the factors are known, and they knew or ought to have known that people like the plaintiff would walk on the garden bed in the way she did.[12]

[11]T637

[12]T637

15There was no evidence contradicting the plaintiff’s account of having fallen on the pebbles, which were loose.  It was submitted loose pebbles on a pathway that is frequently used by motel guests created a risk of injury and harm which constituted a breach of the Wrongs Act 1958 in negligence and, accordingly, there should have been judgment in favour of the plaintiff.

16In many respects it is a very simple case because there is no real dispute about the facts.  It is not like the jury could have been unconvinced about the circumstances of the incident or indeed doubt the plaintiff’s word because credit was not an issue.[13] 

[13]T637

17It was submitted challenges to the plaintiff’s memory were only in relation to peripheral issues, nothing to do with the relevant circumstances of the accident.[14]

[14]T638

18In those circumstances, for the jury to rely on the evidence of Mr Mitchell and Mr Frith that they walked on the pebbled surface safely “is beside the point.”[15]

[15]T637

19It was submitted it was a modern motel, modernly renovated, that provided a grossly inadequate walkway for people going to and from their car at that point.[16]

[16]T638

20Counsel for the defendant relied on the principles set out by Kyrou J in King v Amaca Pty Ltd.[17]

[17]Supra

21It was submitted a description of the verdict as “perverse” was utterly misleading.

22The plaintiff’s evidence was challenged in cross-examination.  It was put to her fairly and squarely her fall was no fault of any slipperiness or unsteadiness of the pebbles, that it was “just an accident pure and simple,” and also that she could not remember why she fell. There was some concession on her part in that regard.[18]

[18]T639

23Speculation about what the jury had done to reach the verdict was impermissible. The enquiry should be directed purely at the evidence.  Essentially, the current law, which had been in place for a long time, was that there was not a scintilla of evidence to support the jury’s findings.[19]

[19]T640

24It was submitted there was much more than a scintilla of evidence in order to ground the jury’s verdict in circumstances where the jury had heard the pebbles were in place for many years, not a single incident, in circumstances, where the jury have heard that the plaintiff, on her own evidence, there is a level of uncertainty in terms of how and why she fell and she vacillated in relation to that “but nonetheless that was the evidence.”[20]

[20]T640

25The evidence before the jury certainly allows it to reach its conclusion and reach this verdict.  The idea there is no evidence whatsoever, not even a scintilla to provide a foundation to this verdict is just not made out on the evidence in this case.[21]

[21]T649

26It was conceded the jury would have to accept the plaintiff fell on the pebbles. However, the jury were not satisfied that that was the result of any negligence.[22]

[22]T641

27That was how the case had been put by the defendant right from the beginning in opening and afterwards – “Yes, there were pebbles there.  Yes, the plaintiff was in that location when she fell.”  However, the fact is that there is nothing inherently unsafe about the pebbles and therefore the idea that somehow the defendant has not discharged its duty to take reasonable care both in negligence and at common law and or under the Wrongs Act, is “nonsense.”[23]

[23]T642

28The fact is that there is evidence before the jury that the defendant did take reasonable care on the basis there was nothing inherently unsafe about this area, therefore the jury was entitled to reach that verdict.  There was nothing about which to take to care because the area was inherently safe.[24]

[24]T642

29It is not a situation where there is no evidence at all.  In fact, there is evidence before the jury that the area was walked across by numerous people on other occasions over a space of years without any other incident.  The experience of other people walking across that area, including the plaintiff’s husband contemporaneous to the incident occurring, was that there was no problem with it whatsoever.[25]

[25]T642

30Therefore, it was submitted the idea that the jury could reach a verdict where there has been no breach of duty and no negligence is entirely made out.  Even if it is accepted the plaintiff fell on a walkway, the evidence does not support there being a breach, and the jury is entitled to reach its verdict.[26]

[26]T643

31In response, counsel for the plaintiff submitted as the plaintiff’s credit was not in issue, that the jury had no basis for not accepting what she said happened.  Once the jury reached the conclusion on the plaintiff’s clear evidence, it needed to find she fell because of the state of the pebbles.[27]

[27]T643

32Counsel stressed that the jury must have accepted the plaintiff as a witness of truth.  The second step was she gave an entirely consistent history as to the mechanism of the fall, becoming unstable and then falling.[28]  The only evidence the jury could find is that when the plaintiff stood on the pebbles they shifted, because (a) she said they did, (b) her evidence is unchallenged on that, and (c) the evidence is clear that the pebbles could shift in just such a way.[29]

[28]T644

[29]T644

33It was submitted the breach is that having regard to the duty owed by an occupier of commercial premises such as the defendant in this case, to have that surface available for its guests of any age to be traversing gives rise, obviously, to a risk of injury of which the defendant was aware, or ought to have been aware – “Just to hide behind a manager who has no expertise, has walked on it himself in circumstances where he is obviously aware of the nature of the surface and has therefore sufficiently corrected, tells us nothing about the risk of injury to guests unfamiliar with the surface.”[30]

[30]T644

34It is the hidden danger for the unfamiliar that creates a risk of injury about which the defendant ought to have been aware.  It ought to have known that if it provided a shifting surface, then there is a risk that people not aware of it will rely on it to support in circumstances where it does not.[31]

[31]T645

35The defendant knew, or ought to have known, about a shifting surface because of the nature of loose pebbles is they shift under foot.  You cannot step on these stones without them shifting.[32]

[32]T645

36In response, counsel for the defendant conceded that pebbles are loose all around the community.  That does not mean any loose pebbles in any location immediately sound in negligence or breach of duty, it just does not.[33]

[33]T645

37It was submitted there was evidence to find a foundation for the jury’s verdict that there was no negligence or breach of duty in this case.  It is clearly not the case that the mechanism of the fall was entirely unchallenged.[34]

[34]The plaintiff’s version was challenged at T 254

38A non obstante application is a very high bar and requires not a scintilla of evidence.  That is the law, and it was submitted there was much more than a scintilla of evidence here to provide a foundation for the verdict and that is why the application must fail.[35]

[35]T647

Findings

39A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.[36]

[36]Popovic at paragraph [134]

40In my view, this application must fail.

41While the plaintiff was a witness of credit and it is accepted that she injured her knee when she fell on the stones, her memory as to the mechanism of the fall was unclear.  When it was put to her she fell because she lost her footing by accident, not because there was something soft or uneven or slippery or unsafe about the pebbles, she accepted that she fell by accident – “but I don’t know all the other reasons…You know I wouldn’t speculate on those other reasons.  The accidental thing, yes.”[37]

[37]T254

42The fact the plaintiff fell does not of itself result in an answer of Yes to Question 1. There must be negligence or breach of duty on the part of the defendant that was a cause of the plaintiff’s injury.  

43The plaintiff cannot in all the circumstances establish that there was no evidence upon which a jury properly instructed could return a verdict for the defendant answering “No” to Question 1.

44Further, in this case, there was evidence to support the jury’s finding of no negligence or breach of statutory duty.

45There was evidence relied on by the defendant that the walkway was not unsafe and that therefore risk of injury was not reasonably foreseeable.  In those circumstances, the defendant’s case was that there was no negligence or breach of duty on its part that was a cause of the plaintiff’s injury.

46During his stay at the motel, the plaintiff’s husband walked straight across the pebbles to the door of the motel when he exited the car on all occasions he drove in and out.  He made no observations about the nature of the surface he was walking on.  The surface was reasonably level.  He had no recollection that the pebbles moved when he walked on them.  He thought they were reasonably loose but they were possibly somewhat compacted but not fully.[38]

[38]T347

47In cross examination, Mr Mitchell confirmed that before the incident, he did not notice any difficulties walking across the pebbled area to get to their room.  After the incident, he still used the same parking bay and did not notice any difficulties – “no, not at all.”[39]  

[39]T355

48Mr Frith, manager of the motel since 2016, had walked over/across the pebbled area up to 10 times a day, minimum.  The pebbled area was always firm, always level.  Over the time he was manager, he had no issues or problems walking across that area.[40]  He did not notice any issues in terms of the stones being soft – “it was always stable underfoot, always.”[41]  He did not have any issues with the pebbles giving way – “None.” [42]

[40]T437

[41]T438

[42]T438

49In cross examination, Mr Firth confirmed people did walk on the pebbled area. Anyone unfamiliar with the premises would be entitled to assume it would be safe to walk there.[43]  “We walked across it regularly and I always found it stable, always safe underfoot and my housekeeping team did as well.”[44]  He disagreed when he became familiar with a surface, he recognised its qualities and was aware of them and took them into account – “No, you just walk over them.” [45]

[43]T445

[44]T467

[45]T467

50Further, as the motel manager, Mr Frith’s responsibilities included all aspects of the motel.  If anything happened, it was reported directly to him and he would then deal with it accordingly.  During his time as manager, no incidents were reported to him in respect of that area.  Since becoming operations manager, he was not aware of any incidents occurring in or around that area. [46]

[46]T442

51Taking into account all these matters and the principles set out by Kyrou J in King v Amaca, the application is refused.    

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