Paltidis v The State Council of the Young Men's Christian Association of Victoria Inc
[2006] VSCA 122
•8 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3791 of 2004
| JAMES PALTIDIS |
| v. |
| THE STATE COUNCIL OF THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF VICTORIA INC. |
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JUDGES: | CHERNOV, NETTLE and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 May 2006 | |
DATE OF JUDGMENT: | 8 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 122 | 1ST REVISION 19 JUNE 2006 |
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Tort – Negligence – Defence of voluntary assumption of risk – Misdirection – Defence not to be resolved by reference to an objective test of what a reasonable person in the plaintiff’s position would or ought to have known – Finding by jury that plaintiff had not voluntarily assumed risk of injury.
Tort – Negligence – Contributory negligence - Misdirection – Jury told that the circumstances relied upon by the defendant to establish defences of voluntary assumption of risk and contributory negligence were the same – Extent of any contributory negligence – Direction not related to circumstances relied upon by the defendant – Little direction as to relevance of causative significance of any departure from the standard of care required of one or other party – Re-direction with respect to contributory negligence – Whether adequate – Failure by plaintiff’s counsel to take exception to direction or re-direction – Whether substantial miscarriage of justice – Exercise by Court of power under s.14(1), Supreme Court Act 1986 – Determination that plaintiff was guilty of contributory negligence, to extent of 25%, in lieu of determination at trial that plaintiff was guilty of contributory negligence to extent of 70%.
Supreme Court Act 1986, s.14(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.J. Stanley, Q.C. with Mr A.D. Clements | Zolis Lawyers & Consultants |
| For the Respondent | Mr R.H. Smith with Ms F.M. Ellis | Herbert Geer & Rundle |
CHERNOV, J.A.:
I agree, for the reasons given by Ashley, J.A., that this appeal should be disposed of as his Honour proposes.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A. I agree with his Honour, for the reasons that he gives.
ASHLEY, J.A.:
Statement of the Case
James Paltidis (“the plaintiff”) brought a claim for damages for personal injuries against the State Council of the Young Men’s Christian Association of Victoria Inc. (“YMCA”, or “the defendant”). It was uncontroversial that he had sustained injury on 15 January 1999 whilst playing a social game of beach volleyball on a sand-surfaced volleyball court at the Northcote Aquatic and Recreation Centre (“the centre”). Whilst an issue at trial was just how the plaintiff had come to sustain injury, the jury’s verdict shows that it concluded that he sustained injury when he struck his chin on part of one of a number of car tyres which had been embedded into the ground to mark the boundaries of the court.
The plaintiff brought his claim in common law negligence, in reliance on alleged breach by the defendant of its duty as occupier of the centre under Part IIA of the Wrongs Act 1958, and in contract.[1] In each case the alleged breach was essentially similar. The plaintiff contended that the defendant had caused or permitted there to be a raised (and so potentially dangerous) edge around the court, failed to provide a safe area around the court, and failed to warn him of the pertinent danger.
[1]He had paid to enter the centre. At trial, the claim in contract was not pursued.
The defendant, which was admittedly the occupier of the premises and operator of the centre, denied negligence, breach of statutory duty, and breach of contract. It alternatively pleaded voluntary assumption of risk, and alternatively again alleged contributory negligence.
The substance of the defendant’s allegation of voluntary assumption of risk, as pleaded, was that the plaintiff knew, before commencing to play on the court, that its boundaries consisted of “plainly visible car tyres”. Insofar as the tyre(s) constituted an unreasonable risk of injury to persons playing on the court, such risk was obvious to, and was known and fully appreciated by, the plaintiff. In the circumstances, the plaintiff elected to play volleyball on the court with full knowledge of any risks of injury constituted by the car tyres.
The substance of the defence of contributory negligence was different. It turned upon the plaintiff’s conduct whilst playing the game. Central to the defendant’s case was the allegation that the plaintiff had been careless of his own safety by diving in the direction of the tyres when he knew their position and dimension.
The matter was tried in the County Court over a seven day period in October 2004. The jury answered a series of questions. They yielded judgment in the plaintiff’s favour for $174,000, that representing damages assessed at $580,000 reduced by 70% for the plaintiff’s contributory negligence. By its answers, it is implicit in what I have just said, the jury rejected the defence of voluntary assumption of risk.
Now the plaintiff appeals against the judgment which was entered on consequence of the jury’s answers. The grounds of appeal are as follows:
“1.That the finding that there was negligence on the part of the Appellant was not open to the Jury on the evidence.
2.That the finding of the Jury that the Appellant was negligent and that that negligence contributed to the loss and damage was against the evidence and the weight of the evidence.
3.That the finding by the Jury that the appellant’s proportion of responsibility for his loss and damage amounted to 70% was against the evidence and the weight of the evidence.
…
5.That the learned Trial Judge failed to instruct the Jury that there was no evidence that would justify a finding of volenti non fit injuria.
6.That the defence of volenti should not have been left to the Jury at all.
7.That the learned Judge failed to correct defence Counsel’s submission regarding the requirements for a finding of volenti.
8.That the learned Trial Judge misdirected the Jury as to the approach they should take to the apportionment of liability.
9.That the learned Trial Judge failed to give the Jury adequate guidance as to the comparative approach it should take to the degree to which the Appellant and Respondent deviated from their respective standards of care.
10.That the learned Trial Judge failed to adequately clarify the basis upon which defence Counsel had submitted the Appellant was guilty of contributory negligence.”
The centre and the court
The centre was at all relevant times owned by the City of Darebin. That municipality had developed the centre, and the defendant had won a tender to manage it in 1990. The defendant had managed it up to the time when the plaintiff suffered injury; and, indeed, it continued to do so thereafter.
As at early 1999 the centre comprised five swimming pools, an outdoor diving pool, six tennis courts, a gymnasium, a crèche/child minding facility, a cafeteria, and the volleyball court. The last-mentioned facility had been built by a contractor soon after the defendant assumed its management role.
The court was about 16 metres long and 8 metres in width. From the time of its construction, its boundaries were marked out by car tyres, set upright, one immediately beside the other. To judge from photographs which went into evidence, about one third of the height of the tyres was exposed above the surface of the court and the area which surrounded it. Those photographs, as well as vive voce evidence, established that on both sides of the court, and at one end at least, there were extensive grassed areas. Those areas were not occupied by any other structure, or put to any specific use. Further still, the photographs showed that the sand which comprised the surface of the court extended to, but not beyond, the tyres. The tyres, indeed, were placed just on the court side of a wooden border which served to contain the sand. No witness suggested, as I understand it, that a set-up such as here existed was replicated in the case of any other beach volleyball court of which that witness had knowledge.
The court, both historically and on the occasion on which the plaintiff was injured, was used for social, not competition, games of beach volleyball.
The defendant provided no supervision of activity on the court. According to the evidence of Daryl Clemson, area manager of the defendant, it would not have been financially viable to have a person on duty on the court all the time, “considering that the volleyball court does not provide any income.” In that connection, it should be noted that the defendant charged a fee for entry to the centre, but made no additional charge for the use of the court.
The plaintiff as a sportsman
The plaintiff was aged 37 at the time when he was injured. Evidently he had been an active sportsman over the years, but not always without incident. In 1983 he had struck his head on the back of a squash court whilst in the course of a game. That incident had been productive of certain symptoms, some of which persisted. But it seems improbable that any continuing symptoms were of much significance, for thereafter the plaintiff had actively participated in the game of indoor soccer, playing as a goalkeeper.
As to beach volleyball, the plaintiff said that before 15 January 1999 “a few times at the beach we’d set up a rope actually more than a net”. Evidently, the games implied by that answer had not been played on courts which were formally laid-out. It was, for the plaintiff “just a fun game”, which involved, as he said “running, jumping, diving. I mean all those sorts of things”.
The plaintiff’s familiarity with the court. How the game came about
The plaintiff had been to the centre before. He had, he said, been there as a teenager. That was before the court was constructed. On occasions, but rarely, he had attended the centre in the years after the court was constructed. He acknowledged having seen it. He had no specific recollection of having seen people playing on it. Nor could he say whether, to his knowledge, its boundaries had always been marked by car tyres. He could say that he had not played on the court before the day on which he was injured.
On 15 January 1999, he, a friend and their children went to the centre for a swim. After having a swim, he lay on a grassed area. He and/or his friend saw that a beach volleyball game was already in progress. They decided to join in. In the event, he and his friend went to one end of the court, and the two men who had previously been playing went to the other end. The game between them had been in progress for about three minutes when the incident occurred in which the plaintiff sustained injury.
In what circumstances did the plaintiff suffer injury?
There were varying accounts in the evidence, direct and indirect, as to the circumstances immediately preceding, and culminating in, the plaintiff sustaining injury. It is unnecessary to refer to all of those accounts, for some were led to suggest that the plaintiff did not strike his chin on one of the tyres which marked the boundaries of the court.
The only eyewitness accounts of what transpired were given by the plaintiff and his friend Mr. Arson. The plaintiff initially said that he somehow tripped after he had made a shot, and that his chin had struck a tyre although he braced his elbows so as to take the impact. He denied flinging himself forward to effect the shot, getting to the ball when it was so low that he had no time to protect himself.
Mr. Arson, on the other hand, gave evidence that the ball was low when the plaintiff got to it – about 35 to 40 centimetres above the surface of the court. The plaintiff had been desperately reaching forward when he made contact with the ball. Had the plaintiff not flung himself forward, he would not have made the save. After the plaintiff struck the ball, he had hit his chin on the tyre.
In the end, despite the different accounts given by the plaintiff and Mr. Arson, it appears that counsel for both parties in their final addresses, and the learned judge in his charge to the jury, approached the matter on the footing that the plaintiff -
· had lunged towards the ball, in the direction of the side of the court, in an effort to save the ball hitting the ground;
· had retrieved the ball when it was quite close to the ground;
· had not had time to protect himself after retrieving the ball;
· had struck part of his upper body, probably his chin, on a tyre, thereby suffering injury.
The jury could not have found negligence if the plaintiff had simply fallen, whether in consequence of a trip or a lunging movement, and had then struck his chest on the surface of the court. So it appears that the jury must have concluded that the plaintiff had suffered injury in the circumstances which I have just mentioned.
Grounds 5, 6, and 7
It is convenient to consider at the outset the grounds of appeal pertaining to the defence of voluntary assumption of risk. For it was contended on behalf of the appellant that “the case went off the rails” when, wrongly, the issue was left to the jury, and when the learned trial judge, as it was claimed, wrongly instructed the jury in that connection.
It was common ground that, for a defendant to make out a volenti defence, it must –
“Obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk[2] he ran, impliedly agreed to incur it.”[3]
[2]The particular risk culminating in the injury.
[3]Letang v Ottawa Electric Railway Co [1926] AC 725 at 731 (PC).
As I noted earlier, the defendant’s case was that the plaintiff voluntarily assumed the risk posed by the tyres, fully understanding the nature and extent of the risk which he would run, before commencing to play on the court. That is, the defendant’s case relevantly turned on the plaintiff’s state of mind before, and only before, he began to play.
The question whether volenti should have been left to the jury depended, in substance, upon whether there was any evidence from which it could be inferred that the plaintiff had a subjective full understanding of the nature and extent of the relevant risk. No conclusion favourable to the defendant was available by way of concession in the plaintiff’s own evidence as to his state of mind before he began to play the game. In examination in chief he said that he “hadn’t even considered [the tyres] a risk” before starting the game. Further, one of two pertinent questions asked in cross-examination was of the “would have” variety; and the plaintiff’s answer to that and the other relevant question involved his retrospective, and therefore irrelevant, assessment of the risk.
But it is wrong to say that the circumstance alone that a plaintiff claims not to have had a full appreciation of the pertinent risk is determinative of that matter. The finder of fact is entitled to examine all the relevant evidence and to infer actual knowledge and full appreciation. The learned authors of Balkin and Davis, Law of Torts,[4] cite Imperial Chemical Industries Ltd v Shatwell[5] as a case that might be so explained. I respectfully agree.[6]
[4]2nd edition, pp 357-358.
[5][1965] AC 656.
[6]See the opinions of Lord Reid at 673 B-D, Viscount Radcliffe at 675 D-E, Lord Hodson at 682 B-D, Lord Pearce at 688 C-E and Lord Donovan at 692 B-E.
Accepting the principle, however, it does not follow in every case where a plaintiff denies having pertinent knowledge that there will be any evidence[7] from which a contrary conclusion may be reached. It must depend on all the circumstances of the particular case.
[7]Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 addressed the circumstances in which a judge may take away from a jury a plaintiff’s case laid in negligence. See at 274-275 per Gaudron J, at 281-285 per McHugh J. See also at 293 per Kirby J. A similar approach would be in point where a judge was asked to take away from a jury consideration of a defendant’s plea of voluntary assumption of risk.
Hayne J, observed, obiter dictum, in Woods v Multi-Sport Holdings Pty Ltd[8], that in considering a volenti defence, “a risk that was obvious to all” might, absent evidence to the contrary, lead to a conclusion that such risk was known to the plaintiff. That observation was relied upon by counsel for the defendant on this appeal.
[8](2002) 208 CLR 460 at 503.
Woods, it will be remembered, was resolved by a finding, upheld by majority on final appeal, that the defendant did not breach the duty of care which it owed the plaintiff. That does not detract from the significance of his Honour’s remark. But it is at least doubtful whether in the particular circumstances of this case it could assist a conclusion that there was any evidence which could enable a finding favourable to the defendant upon the issue of voluntary assumption of risk.
Interesting as the question is at a conceptual level, however, and despite my having referred to some of the principles which would arise in its resolution, I consider that it may be put to one side. That is because, even if it was correct for the learned trial judge to leave the issue to the jury, I think it is plain, with respect, that he misdirected the jury in that connection; and because the question whether his Honour’s approach was faulty in another, logically antecedent, respect does not affect, as I perceive it, the outcome of this appeal.
The learned judge instructed the jury, concerning voluntary assumption of risk, in part as follows:
“Let me tell [you] though, the law says that it is an objective test. In other words, it’s not good enough for someone to simply say, ‘I didn’t know abut the risk,’ and that’s the end of the matter. You, as the jury, can look objectively at all of the facts and decide whether he did in fact appreciate the risk he was running by playing beach volleyball on this court on this day.”
A little later, examining pursuit of a volenti defence in respect of a passenger’s claim against an intoxicated driver, his Honour said this:
“So a jury would listen to all of that evidence and then decide objectively whether the passenger in fact appreciated the risk of driving in those circumstances. So that is an example, it has got nothing to do with this case, but the test is an objective one, not a subjective one. The defendant’s argument in relation to this is that the plaintiff knew the set-up in this court before he played on it and he knew it wasn’t obviously an Olympic-type beach volleyball court but it was simply, the defendant – Mr Smith says ‘must have been appreciated by the plaintiff who was there for social games.”
Counsel for the plaintiff submitted that his Honour’s directions
“gave rise to a significant risk that the jury would have the impression that if the plaintiff should have appreciated the risk then the volenti defence could succeed even if the plaintiff did not actually appreciate the risk prior to the accident.”
According to the submission of counsel for the defendant, however,
“although the trial judge referred to the test being an objective one, he made it clear to the jury that the issue was whether the plaintiff did in fact appreciate the risk ‘…. This [being] clearly a subjective test.”
I consider that the submissions made on behalf of the plaintiff should be accepted. What his Honour no doubt wished to say was that, for the defence to succeed, the jury need to be satisfied, considering all the evidence, that the plaintiff in fact was seised of full knowledge and appreciation of the risk of injury posed by the tyres before he began to play the game; and that by playing he impliedly agreed to incur that risk. But once his Honour referred to the test being an objective one, there was a real risk that the jury might decide the issue by reference to what it considered a reasonable person in the plaintiff’s position would or to have known. That risk existed, in my opinion, although his Honour referred to the need to “decide whether [the plaintiff] did in fact appreciate the risk”.
The misdirection, for such I consider it was, had its origins in a discussion which took place between the learned judge and counsel before final addresses. His Honour had framed questions for the jury’s consideration. They did not include a question pertaining to the volenti defence. That, his Honour told counsel, was deliberate. In the end, however, the learned judge was persuaded by the submissions of counsel for the defendant to include such a question.
In the course of the discussion, his Honour said to plaintiff’s counsel[9] that “surely” it had to be an “objective test”. Counsel assented. Counsel also submitted that “it has to be an objective assessment of what [the plaintiff] knew.” That assent, and that submission, did not sit comfortably with counsel’s submission, made several times, that it was not good enough for the defendant to show that the plaintiff ought to have known of the relevant risks.
[9]Who was not counsel for the plaintiff on the appeal.
Against that somewhat confused background, it may well be that the learned judge simply treated what counsel at times said as confirming the applicability of the so-called “objective test”.[10] But whether or not that was what happened, the misdirection occurred .
[10]When defendant’s counsel reminded the learned judge, just before he commenced his charge, that the question whether the tyres “did constitute some sort of risk would be, as your Honour indicated last week, looked at on an objective basis”, his Honour responded that he had already indicated what his view of the law was on that.
I should add this: the misleading effect of his Honour’s reference to an objective test was the greater because elsewhere in his charge the learned judge referred to judging issues objectively. That was, first, in the context of breach of duty, where his Honour said of the application of an objective test that
“…what you have to do is to say to yourself ‘what would a reasonable occupier have done…’[if] I was a reasonable person, what would I have done? So it’s a objective standard.”
It was, second, in the context of the defence of contributory negligence, where his Honour said –
“The first thing is, you ask yourself what would the reasonably prudent beach volleyball player have done if he found himself in the position of the plaintiff in the circumstances that existed on the day of the accident?. It’s an objective test…”
There is another way in which the misleading impact of his Honour’s reference to an objective test in the context of voluntary assumption of risk was greater than it might otherwise have been. In the context of breach, his Honour referred extensively to some – but not all – of the matters to which consideration shall be given in deciding whether an occupier has breached the duty described in s.14B of the Wrongs Act 1958. Included amongst the matters which the judge mentioned was “the ability of the person entering the premises to appreciate the danger.[11]
[11]See s.14B(4)(f).
His Honour’s charge effectively converted that matter into enquiry whether the plaintiff must have known of the risk of injury before he went onto the court – the volenti question. The arguments of counsel to which the judge referred in that connection were arguments which they had advanced in respect of that defence.[12]
[12]Counsel for the defendant very briefly addressed the jury on the subject matter of s.14B(4)(f), in contradistinction to his lengthy submission on the volenti defence.
Those arguments did focus on the question whether the plaintiff had been subjectively aware of the risk of injury. But they were recounted by his Honour in a context where an objective standard was said to apply, and where the questions of ability to appreciate the danger and knowledge of the risk of injury were treated by his Honour, incorrectly in my opinion, as being one and the same. The evident presence of a feature constituting a dangerous state of premises might lead to a conclusion that an adult who entered the premises and saw that feature would have the ability to appreciate it. But it would be another question whether such person in fact knew and appreciated the full extent of the risk of injury posed by that feature before embarking upon some activity which had a connection with it.
Grounds 1, 2, and 10
The jury in fact resolved the question of voluntary assumption of risk favourably for the plaintiff. It resolved the issue of contributory negligence, on the other hand, against the plaintiff; and it apportioned contributory negligence heavily against him.
According to the submission for the defendant, the jury in fact resolved the various issues in a logical way. Even assuming a misdirection upon the issue of voluntary assumption of risk, it had not disadvantaged the plaintiff. The finding of contributory negligence had been open. There had been no misdirection. There was nothing to indicate that the jury had been distracted in its consideration of that issue by any misdirection on the other issue.
According to the submission for the plaintiff, however, -
· the fact that volenti was left to the jury, compounded by the misdirection, may well have led the jury to be distracted from its proper task. The sequence of events after the jury first retired showed that it had had some difficulty in resolving that issue;
· the fact that volenti was left to the jury, and the fact of the misdirection, meant that too much emphasis had been laid on the plaintiff’s decision to play volleyball at all. The defendant’s case on contributory negligence, as particularized, had not focused upon that decision; but rather upon the manner in which the plaintiff had played the game. On the evidence, all that the plaintiff had done was to play the game in the normal fashion, on a court provided and set-up by the defendant for such play;
· the direction of the learned trial judge as to contributory negligence had not addressed the defendant’s case. It had left it to the jury to decide what could constitute contributory negligence.
In my respectful opinion, the learned judge’s charge upon the issue of contributory negligence was in error in more than one way. It is unnecessary to address all the submissions advanced for the plaintiff in order to so conclude.
I must set out the sequence and content of his Honour’s pertinent directions. Having told the jury that the question whether the plaintiff was guilty of contributory negligence involved “different concepts altogether” from the question whether the plaintiff had voluntarily assumed the risk of injury, because it was not an absolute defence but involved a reduction in damages, his Honour said this:
“So what is argued there, again by the defendant, in a similar fashion to the argument put in relation to Question 2, is that the tyres were there to be seen and that the plaintiff should have appreciated the risk, and of course he, like everyone else, has a duty to take care of his own safety, everyone has a duty to take care of their own safety.
So Mr Smith argues that he had this duty and it involved him weighing up the risks of playing the game knowing that the tyre boundary was there, and he says, ‘If you’re against me in relation to him voluntarily accepting the risk, then at least you would have to say that he failed to appreciate when he should have appreciated the risks that the tyres constituted and that was the main cause of the accident, and’ Mr Smith says ‘should reduce his damages by at least 50%.”
His Honour characterized the plaintiff’s response this way: How could it be said that he had been guilty of contributory negligence when all he had done was do what anyone who was playing beach volleyball would do?
His Honour then described the test which the jury must apply, the burden resting on the defendant:
“The first thing is, you ask yourself what would the reasonably prudent beach volleyball player have done if he found himself in the position of the plaintiff in the same circumstances that existed on the day of the accident? It’s an objective test…”
He went on -
“So if you are satisfied as a matter of probability that the plaintiff failed to act as a reasonably prudent player would have acted in those circumstances on that day, then it would be open for you to find him guilty of contributory negligence.”
Then, with respect to apportionment, his Honour said this:
“The purpose of this is to establish by means of a percentage what you think was the plaintiff’s responsibility for the accident. That requires a comparison on your part of the blame worthiness of both parties. So before you start this exercise you will have already found the defendant guilty of negligence, otherwise you wouldn’t be here, it’s down to Question 4 and 5. So in that context of saying, ‘Yes, we think the defendant was negligent,’ we now come to compare the blame worthiness of both of them.
When I say blame worthiness, I don’t mean moral blame worthiness or anything like that, but simply the degree of departure from the standard care of a reasonable person. If you’ve found that both of them departed from the standard of care of the reasonable person, in the defendant’s case the reasonable sports complex management and in the plaintiff’s case the reasonable beach volley ball player, then you can make a comparison of how far they both departed from the standard of care of the reasonable person and how far that departure was a cause of the accident.”
I have already pointed out that the defendant’s case as pleaded and particularized with respect to the defences of voluntary assumption of risk and contributory negligence was quite different. For his Honour to suggest that they rested upon the same facts, thus importing into the jury’s consideration of contributory negligence the circumstances raised in connection with volenti, a fortiori when there had been a misdirection in respect of the latter defence, was misleading, and built upon earlier error. Moreover, it had the effect of suggesting, wrongly, that the cases of the defendant and the plaintiff with respect to contributory negligence had no point of contact. His Honour’s references thereafter to the “same circumstances that existed on the day of the accident”, and to “those circumstances”, in my respectful opinion gave the jury no assistance, when set in the context of his Honour’s misdescription of the competing cases. Rather, in context, they were misleading. Nor was the situation righted by what his Honour said with respect to apportionment. It was very little, and it said nothing about the competing cases as they were in fact.
The directions which his Honour had given about contributory negligence did not pass unremarked. They should have been taken up by counsel for the plaintiff. In fact they were taken up by counsel for the defendant. In the absence of the jury, he made this submission:
“Your Honour has, as I would understand it, summarised the defendant’s case by saying that the plaintiff was contributorily negligent in playing on the court, given the design of the court. That is true that that is one part of the case of contrib., but the other part [is] particular[ly] emphasised by particular (a) of the amended particulars which reads ‘diving in the direction of the tyres when he well knew their position and dimensions’.
If it was merely setting foot on the court – and I don’t know that it would be open to the defendant to say ‘You set foot on the court negligently’ when we have got the thing open for use and whatnot – the way that I attempted, perhaps unsuccessfully, to put the contributory negligence point is that ‘The tyres were there, they were obviously there. Wherever you might have thought you might have lunged, to lunge straight in the direction of the tyres to get a ball that was in that vicinity was negligent and you have got to conduct yourself’ a bit like you don’t lunge for the short volley on the tennis court because of the tennis court net, if you fly in the direction of that, you can hardly complain if the net catches you around the neck. It’s a static thing, it’s there.”
That submission drew attention to his Honour’s misdirection concerning contributory negligence. But, whatever be the reason, it involved the assertion – contrary to the true position – that one part of the defendant’s case on contributory negligence was that the plaintiff had been guilty of contributory negligence by playing on the court, given its design.
His Honour did not respond to counsel’s submission as would suggest that he did not understand it, or rejected it. But when the jury came back into Court, although he corrected his summation of certain other arguments which counsel had advanced in their closing addresses, he said nothing more about contributory negligence. Rather, he went on to deal with the question of damages, and that at some length. Then he sent the jury out to consider its verdict.
Thereafter, defendant’s counsel raised several issues with his Honour. One of them concerned contributory negligence. Counsel said that he “hadn’t understood” why his Honour had “ruled against [him] on that”. The judge responded by saying that he hadn’t so ruled, that he had “meant to cover that”. Counsel then re-framed what he said was the defendant’s case on contributory negligence:
“…it’s not that the defendant says that there’s no contributory negligence in playing, really what the defendant says is there is nothing unreasonable…about [the] court in the first place, so you don’t get past question 1. But if the jury find that it was an unreasonable court to play on, then it was unreasonable for reasons that were known to them. Therefore, step 1, he was negligent in playing on it; but step 2, if he wants to play on it, don’t lunge towards the tyres.”
Again, that submission, in its reference to “step 1”, appears to have misstated the defendant’s case on contributory negligence as it had been particularized.
Notwithstanding what counsel had submitted, the learned judge recalled the jury, and re-directed it this way:
“On the question of contributory negligence, again I think I didn’t quote him correctly, the defendant’s attitude to this is that the plaintiff was guilty of contributory negligence by lunging towards the tyres during the game – in other words, not, as I think I might have said, by simply setting foot on the court, because that is all to do with Question 2 of voluntarily accepting the risk, that happens the moment he sets foot on the court, but the defendant’s argument is, if you don’t accept that argument, if you’re against the defendant in relation to that, then you will say, notwithstanding that, that the plaintiff was guilty of contributory negligence.
That doesn’t happen the moment he sets foot on the court, that happens when he acts in the way he did when he came to grief, and the defendant says, ‘Knowing the tyres were there, knowing what the game is all about, you don’t lunge at the tyres if you’re playing this game with those tyres there,’ and in so doing the plaintiff was guilty of contributory negligence.”
That was a direction which was compatible with the defendant’s particularized case on contributory negligence; although not with the case as defendant’s counsel contended it was. It did something to disengage the allegation of contributory negligence from the defendant’s case on voluntary assumption of risk. But it was, in my opinion, quite insufficient as events had unfolded. I agree with the submission made for the defendant that this Court should look to the substance of the directions given by his Honour, and not be bogged down by analysis of individual words. But I do not agree that such an approach enables the contributory negligence directions which his Honour gave to be validated.
The re-direction was disconnected from his Honour’s substantial charge about contributory negligence and apportionment. That charge had misstated the defendant’s case, and had connected it, in different ways, with the issues of breach and voluntary assumption of risk. It had equated an issue to do with breach – that is, the ability of an entrant to appreciate the danger – with the issue central to voluntary assumption of risk – that is, whether the plaintiff had full knowledge of the relevant risk before he began to play the game. It had misstated the law with respect to voluntary assumption of risk. In the context of each of breach of duty, voluntary assumption of risk, and contributory negligence it had focused upon the question of the plaintiff’s knowledge of the danger or risk – and for the most part had set that question in an objective landscape. It had asserted, to the exclusion of everything else, that the defendant’s case was all about the plaintiff setting foot on the court.
When his Honour finally re-directed about contributory negligence, he did so simply by telling the jury that the defendant’s case was that the plaintiff was guilty of contributory negligence by lunging at the tyres when he knew they were there, and knew what the game was all about. He said nothing to remind the jury that contributory negligence is assessed objectively, the onus of proof resting on the defendant. He said nothing about the plaintiff’s case in response. He said nothing to assist the jury in the task of apportionment, either as to culpability or causation, in the event that such task became relevant. To say, as he did, that “simply setting foot on the court” was “all to do with…voluntarily accepting the risk” makes sense to a lawyer. But the jury consisted of laymen. To be told such a thing, without further explanation, at the end of a charge is which the jury had been emphatically told the contrary, was in my opinion quite insufficient. That was the more so when, in a context which his Honour had interrelated with contributory negligence, there had been a misdirection in point of law.
I have expressed the opinion that the re-direction was quite insufficient in the events that had occurred. But it can immediately be said that plaintiff’s counsel took no objection to the re-direction, just as he had taken no objection to the previous erroneous direction concerning contributory negligence.
The failure to take exception is, as Winneke P said in Butler v Rick Cuneen Logging Pty Ltd[13]
[13](1997) 2 VR 99 at 104.
“a significant factor which an appellate court will take into account in determining whether a verdict should be set aside…[but] it is not necessarily fatal to such a result”.
It is a significant factor because as his Honour said, it is something which an appellate court -
“will take into account in considering whether the point of which complaint is made on appeal had the weight or moment which it was said to have in the atmosphere of the trial”.[14]
But in the end, as the President said –
“The matter cannot be the subject of hard and fast rules because, in the long run, the court’s jurisdiction to order a new trial must depend upon the demands of justice: see General Motors-Holden’s Pty. Ltd. v. Moularas (1964) 111 C.L.R. 234-3; Rukavina v. Incorporated Nominal Defendant[[15]] at 683; Coleman v. Latrobe University[[16]] at 21.”
[14]At 104.
[15][1992] 1 VR 677.
[16]Unreported, Court of Appeal, 8 September 1995.
In determining whether there has been a substantial miscarriage of justice such that a judgment should be set aside and a new trial ordered, the burden should be taken to lie “upon the party who has failed to take objection at trial”. In that connection “the appellate court will be entitled to regard what was omitted to be done at trial as an important consideration affecting its jurisdiction”.[17]
[17]Butler at 105.
Against that background of principle, I think it inescapable that the directions given by the learned trial judge with respect to contributory negligence, when set in the context which I have described, created a perceptible risk that the jury’s determination of the issue whether the plaintiff was guilty of contributory negligence was resolved on a false basis, and so miscarried. Further, I consider, the directions carried the perceptible risk that the jury’s appointment of responsibility, once it found contributory negligence, was founded on a false basis, and so miscarried. The plaintiff has persuaded me, notwithstanding the failure of counsel at trial to take relevant exceptions, that the directions occasioned a substantial miscarriage of justice.
In so concluding, I have not relied upon the jury’s finding that the plaintiff was guilty of contributory negligence; nor have I relied upon the jury’s apportionment of 70% against the plaintiff. Contrary to the submission for the plaintiff, I consider that it was open to the jury, properly instructed, to have found contributory negligence against the plaintiff. Further, although in my opinion the jury was insufficiently directed with respect to the task of apportionment, I would not hold, being mindful of authorities such as Podrebersek v Australian Iron & Steel Pty Ltd[18] that the apportionment was so evidently wrong as to bespeak a wrong approach in principle arising either from misdirection with respect to contributory negligence or insufficient direction with respect to apportionment. On the other hand, to say, if another case been put before the jury, that it might have found contributory negligence, and that it might conceivably have assessed contributory negligence at 70%, does not deny that a miscarriage in fact occurred in the circumstances which I have described.
[18](1985) 59 ALJR 492.
I said a moment ago that I did not accept the plaintiff’s submission that, on the defendant’s particularized case with respect to contributory negligence, a finding of contributory negligence was not open. I should say why I am of that opinion.
If a finding of contributory negligence was simply not open on the evidence, then the issue should not have been left to the jury. No such submission was made by plaintiff’s counsel at trial. Nor is there any ground of appeal which contends that the issue should not have been left to the jury. In my opinion, failure to take the objection reflects the fact that there was evidence upon which a finding of contributory negligence might properly have been made. It is true that the plaintiff was playing beach volleyball, in the manner in which the game needs to be, or is customarily, played. It is also true that the plaintiff was a relatively inexperienced player, and that he had only been playing for a very short while for the first time on this particular court when he suffered injury. But the very unusual way in which the boundaries of the court were marked out was arguably something that a reasonable person in the plaintiff’s position would have assimilated at the outset of playing; and arguably a reasonable person in the plaintiff’s position would have taken some steps to modify his play in order to meet the obstacle, if not the danger, created by the tyres.
One may accept that the competitive urge lurks not far below the surface, even when a game is characterized as “social” or “friendly”. One may accept that, on the spur of the moment, a person affected by that urge may take a risk which sober assessment would say ought not be taken. Such considerations might be considered weighty in an apportionment exercise. But I do not see them as denying the availability of a finding of contributory negligence.
Grounds 3, 8 and 9
I shall refer to grounds 8 and 9 shortly, and on a provisional basis. Their resolution is not necessary for the disposition of the appeal. The same may be said about ground 3, concerning which I will not add to what I have said already.
Grounds 8 and 9 turn upon the direction which his Honour gave concerning apportionment. His Honour’s direction was extremely brief. I have set it out at [50]. I provisionally agree with the submission of plaintiff’s counsel that it was insufficient. It scarcely made any mention of the relative importance of the respective acts or omissions of the plaintiff and defendant in causing the injury. In this matter, having regard to the quite different conduct of plaintiff and defendant which the other respectively relied upon in proof of negligence and contributory negligence, the causative importance of any breach was arguably of considerable importance.
Again with respect to grounds 8 and 9, his Honour’s direction stood in isolation from any factual analysis; and it was given in the context that his Honour had mistaken the defendant’s case as to contributory negligence. Further, when his Honour finally re-directed about contributory negligence, he said nothing at all about apportionment. His Honour’s direction needed to relate the facts in issue to the statement of principle. In my provisional opinion, it failed to do so – either at the outset, or at the time of re-direction.
What should be done?
Counsel for the plaintiff submitted, in the event that the appeal was allowed, that this Court should deal with the issue of contributory negligence. It should either find that there was no contributory negligence, or at least find that contributory negligence did not exceed 10%.
Counsel for the defendant submitted, in the event that the appeal was upheld, that all issues excepting damages should be remitted for retrial. The defendant, he submitted, had sought trial by jury, and should not be deprived of such a trial. A jury could best assess whether the plaintiff had been foolhardy or gung-ho.
This Court has power to dispose of a matter where an appeal is allowed from judgment brought after trial by jury; see s.14(1), Supreme Court Act 1986. In my opinion it should exercise that power in this case. The following matters are relevant: First, this is an old matter. The incident occurred in January 1999. The writ was issued in October 2002. The trial was held in October 2004. The appeal could not be heard until May 2006. The sooner that the matter is concluded, without resort to a further memory test of the plaintiff and the other witnesses, and without calling still further upon the public purse, the better.
Second, the plaintiff’s credit generally was not in issue. That is so despite there being some debate as to the precise mechanism of the incident, and despite challenge to his claimed damages. Neither was the credit of other witnesses in issue.
Third, the jury found negligence against the defendant. The basis upon which it did so is quite clear. Its finding was not challenged by cross-appeal.
Fourth, the defendant’s case against the plaintiff in respect of contributory negligence was clear-cut, and depended upon an analysis of viva voce and pictorial evidence which was not itself in doubt.
Fifth, damages were assessed by the jury. That assessment has not been challenged by either party.
Sixth, the circumstance that the defendant sought trial by jury, although I do not say that it should not be put into the balance, in my opinion does not tip the scales against the outcome suggested by the other considerations to which I have referred.
In all, as Chernov JA said in Del Romano v Turner, [19] that being a case where this Court re-assessed contributory negligence in the face of the defendant’s submission that a re-trial should be had -
“This is an unusual case in the sense that the salient facts are essentially not in dispute, are in short compass and no issues of credit need to be resolved for the purpose of making the relevant assessment. Moreover, the jury’s finding of damage in the sum of $340,000 has not been relevantly challenged. Consequently this Court is in a position where it can properly reassess the extent of the appellant’s contributory negligence and should do so.…”
[19][2002] VSCA 166 at [26].
Resolution of the issue of contributory negligence
In my opinion, for reasons which I outlined when I said that it would have been open to the jury, properly instructed, to find contributory negligence against the plaintiff, I consider that a finding of contributory negligence should be made.
I turn to apportionment. The defendant’s breach, as the jury must have found, was to set up the court in the way that it did. Marking the boundaries with raised and unyielding tyres was an extraordinary thing to do. It was also unnecessary, in that the area of sand could readily have been extended beyond the bare limits of the court. There was nothing physically which would have prevented that being done. It would have facilitated playing the game, which often enough entails moving out of court to retrieve the ball. It would also have facilitated the safe playing of the game by taking out of the equation a raised and unyielding surface such as might be struck by a player in a variety of circumstances – amongst which circumstances was lunging or diving in the course of retrieving the ball. As I said earlier, it is unrealistic to imagine that players engaging in a social or friendly game will not or may not be affected by the competitive urge. The fact, as it seems, that no significant injury in consequence of the placement of the tyres had been reported to the defendant over a period of years before January 1999 did not mean that there had been no incidents involving the tyres; nor did it gainsay risk of injury attributable to their presence.
I turn to the plaintiff. In my judgment, he failed to take reasonable care for his own safety because, as an adult playing on that court, he failed to desist from attempting to retrieve the ball in the ordinary way when to do so would take him into the near vicinity of the tyres.[20]
[20]Or, perhaps, to take steps to modify the way in which the whole game was played so that, with the acquiescence of the other players, it was played only in centre court.
I consider that such modified conduct was reasonably required of the plaintiff because he ought reasonably to have appreciated, before the critical incident occurred, that the tyres were present, and that they marked the boundaries of the court. The facts that the plaintiff was an inexperienced player, that this was the first occasion on which he had played on that court, and that the incident occurred soon after he began to play, do not gainsay that conclusion – although they bear upon the extent of his culpability.
In all the circumstances, I consider that the extent of the defendant’s departure from the standard of care reasonably required of it was considerably greater than the plaintiff’s departure from the standard of care reasonably required of him. The plaintiff’s departure involved a spontaneous act in the course of play by a person essentially unfamiliar with the court. The defendant’s departure involved failure over a protracted period to take simple remedial action which was reasonably required in order to put an end to the unnecessary danger constituted by the tyres.
As to the relative importance of the departure from the required standard of care of each of the parties in causing the plaintiff’s injuries, the comparison is not of like with like. I am of the view that the defendant’s departure was of somewhat greater causal significance, although I acknowledge that it was the plaintiff’s spontaneous, and negligent, act which was the immediately causative event.
Focusing particularly upon the two considerations just mentioned, though considering the whole conduct of both parties, I would find contributory negligence against the plaintiff to the extent of 25%.
Orders
I would allow the appeal, and make orders which had the effect of giving judgment for the plaintiff for $435,000, together with damages in the nature of interest and costs, including the costs of the appeal.
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