Wynbergen v Hoyts Corporation Pty Ltd

[1997] HCATrans 60

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 1996

B e t w e e n -

GERRIT WYNBERGEN

Applicant

and

THE HOYTS CORPORATION PTY LIMITED

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1997, AT 9.53 AM

Copyright in the High Court of Australia

MR C.A. EVATT:   I appear for the applicant with MR M.K. ROLLINSON, your Honours.  (instructed by Teakle Ormsby George)

MR S.M. LITTLEMORE, QC:   May it please your Honours, I appear for the respondent.  (instructed by Malcolm Johns & Company)

DAWSON J:   Yes, Mr Evatt.

MR EVATT:   Your Honours, this application involves two matters of general principle:  firstly, whether the Supreme Court - Mr Justice Handley was correct in saying that section 10 of the Law Reform (Miscellaneous Provisions) Act authorised an apportionment of 100 per cent for contributory negligence.  His finding that section 10(1) of the Act authorised such a finding was agreed to by Mr Justice Cole.  That appears on page 89 of the application book in the top paragraph which reads:

The jury therefore could have arrived at their apportionment of 100% for the plaintiff’s contributory negligence by finding that although the defendant’s negligence had been a cause of the accident the combined culpability and causative effect of the plaintiff’s conduct warranted an apportionment of 100% for his contributory negligence.  Such a finding is authorised by s 10(1) of the 1965 Act -

that is the Law Reform (Miscellaneous Provisions) Act-

which entitles the tribunal of fact to reduce the claimant’s damages “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.  I see no reason why a reduction of 100% should be held to be outside the authority thereby conferred.

And Mr Justice Cole, in his judgment at page 93 of the application book, last paragraph, said:

I agree with the reasons and orders proposed by Handley JA.

The second matter of general principle is whether, in a claim at common law for damages for personal injuries, it is sufficient for the plaintiff to be awarded only an amount for medical expenses without any additional amount for general damages for pain and suffering, albeit such pain and suffering would not be great.

TOOHEY J:   Is that a separate argument to the first one?

MR EVATT:    Yes.

TOOHEY J:   In what sense, Mr Evatt?

MR EVATT:   The jury’s award of damages, of course, is dependent on their findings in the questions, but one is a point as to the true interpretation of section 10(1) of the Act and the other is a matter of principle of common law apparently not decided, except by a decision of the Court of Appeal itself with which the Court of Appeal in this case did not follow, that when the plaintiff receives an award of damages for personal injuries, the plaintiff is entitled to receive over and above medical expenses and amount for pain and suffering.  They do seem to be in almost watertight compartments, those two questions.

If I could take the Court to the Act, a copy of which I understand has been provided, section 10(1) of the New South Wales Act is identical to the other Acts in the States and Territories of the Commonwealth and the English Act.  I have set them all out in the written submissions, the names of all the Acts.  I think with the Western Australia exception, they are all in identical language.  Section 10(1) reads:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share and responsibility for the damage.

Now, Mr Justice Handley said that the finding of 100 per cent is authorised by the Act because the Act entitles the tribunal awarding the damages to reduce same “to such extent as the court thinks just and equitable having regard to the claimant’s share and responsibility for the damage”.  But his Honour overlooked the introductory words, the first two lines of the section where the contributory negligence under this Act can only come into play where the damage suffered is partly the plaintiff’s fault and partly the defendant’s fault.  That is the key of the Act.  This Act came into the legislation to prevent injustice where, at common law, the plaintiff if found to be even 1 per cent contributory negligence would lose the case.  Now we get the position where it is open to a tribunal to award, according to Mr Justice Handley, 100 per cent contributory negligence, which has the same result as it did before the Act came in.

Leaving aside what happened at the trial, the size of the verdict and the interpretation of the jury’s questions, there is now authorised by the Court of Appeal, by two judges at least, a statement that under section 10(1) of this Act there can be 100 per cent apportionment for contributory negligence.  It is just incorrect on the face of it, your Honour.

TOOHEY J:   Mr Evatt, we might at this point ask Mr Littlemore for assistance.

MR LITTLEMORE:   Your Honours, this is probably an interesting question as to whether there can be 100 per cent apportionment of damage but, we would say, not in this case.  This is a $38 case.

McHUGH J:   Mr Littlemore, before you continue there is something I have to draw your attention to and that is your summary of argument does not comply with the Rules.  It tells the Court nothing as to what your argument is.

MR LITTLEMORE:   I apologise for that.  I was unaware that it was not in compliance with the Rules, your Honour.

McHUGH J:   We want to know what your argument is.  You refer “References to the argument in the Court below:”, and that is not the question that is posed by the Rules.  And there is a reference to Justice Clarke at 75.8 and 78.1.  I have checked those references.  It is impossible to determine what your argument is by reason of those references.  I do not know whether it is line 8 of line 1 or point 8 on the page, but whichever of those alternatives it is, it does not assist us.  I have drawn your attention to it and in future it ought to be known that it is not sufficient just to refer to passages in the judgments below.  The Rule requires the party’s argument, although briefly.  I do not want to embarrass you in any way, but I just draw your attention for the future.

MR LITTLEMORE:   I regret it did not meet with your Honours’ needs.  Your Honour, our argument is that the decision of the Court of Appeal was plainly right, that an apportionment of 100 per cent in a particular case, where it is left to the jury properly instructed, is open to a jury, to a tribunal of fact.

McHUGH J:   I think that may well be right, but the problem in this case is the $38.

TOOHEY J:   I am not sure that it is right, even without the $38.

McHUGH J:   Yes, it may not be right.

GAUDRON J:   It may not, with the answer to question 1.

MR LITTLEMORE:   I am sorry, your Honour?

GAUDRON J:   It cannot be right with the answer to question 1.

MR LITTLEMORE:   That was dealt with by his Honour Mr Justice Clarke saying that at first blush he took that view too.  If I may take your Honours to that particular passage.  It is in the application book page 77 line 7:

Although I was initially disposed to the view that thee was an inconsistency between answers 2 and 3 -

I think that is the same as the point your Honour makes.

GAUDRON J:   Yes.

MR LITTLEMORE:  

insofar as a finding of 100 per cent responsibility would seem to deny the existence of any causal nexus between a breach of duty by the defendant and the damages.....that logically that is not necessarily correct. 

We say that is right, if your Honours please.

GAUDRON J:   What follows does not, to my mind, bring that home.

MR LITTLEMORE:   What follows in the judgment, your Honour?

GAUDRON J:   Yes.  The reason his Honour assigns for it being logically incorrect.

MR LITTLEMORE:   Your Honour, we would say it is correct that the jury were instructed to take into account causation and culpability in apportioning responsibility.  In other words, it was a section ‑ ‑ ‑

GAUDRON J:   And on question 1, would you take into account causation?  Would you take causation into account on question 1?

MR LITTLEMORE:   Question 1 being “Was the Defendant negligent”, yes, your Honour, “in failing to provide a safe system of work?”  No, that does not necessarily take into account causation.  We would say not necessarily at all.  That is another matter.  There need be no causal link between a defendant’s unsafe system of work and the particular accident.

TOOHEY J:   No, but unless there were, you would not get to question 2, would you?

MR LITTLEMORE:   That is quite so, your Honour, and the questions were, upon everybody’s reflection, very badly posed.  It would obviously have been better to simply ask the jury whether they found for the defendant or the plaintiff.  That really ought to have been the way the questions were posed, but they were not.  They were posed in a way where, really, as I think his Honour Mr Justice Handley said, they should have stopped.  The answers should have stopped after answer 2.

McHUGH J:   It may well be that notwithstanding the defendant was negligent, that a jury could nevertheless apportion 100 per cent responsibility.  Take the old case of Butterfield v Forrester, the defendant is negligent because he runs into the donkey which was tied up, but he has the later opportunity - the plaintiff had the later opportunity to avoid the problem, so it might be appropriate to make it 100 per cent, one way or the other.  There may be a causal connection.  There may be negligence and a causal connection, but it is still just and equitable to say, look, really, the plaintiff should be paying this 100 per cent. 

But my problem, Mr Littlemore, is the $38, which seem to suggest that the jury did not apportion the whole of the responsibility to the plaintiff.  They gave him $38.

MR LITTLEMORE:   They gave that, your Honour, as the assessment of damages in answer to the question “arising out of the Defendant’s negligence”, but we would say that has  to be understood in the context in which the question was asked.

TOOHEY J:   But it can hardly be divorced from negligence that caused the plaintiff’s injuries, otherwise it is meaningless.

MR LITTLEMORE:   Your Honour, we would respectfully say that is a far too subtle view of what the jury were answering.  The jury were really answering the question, “If you had awarded damages, what would you have awarded?”  And it is a very sophisticated use of the question asked of a jury to work backwards and say that that necessarily means that they apportioned causal blame to the defendant.  Literally, yes.  That is what it says.  But one has to take into account that this was a jury cause and the way it was fought.  If one is to hold to the precise words of the question the jury was asked, the answer to your Honour’s question is yes.  We say that is unduly subtle in the circumstances of a jury trial.

TOOHEY J:   I am not so sure about that, particularly if you look at question 1.  Unless you were to read that as some sort of question in the abstract, “Was the defendant negligent?”, whether or not it had anything to do with the plaintiff’s injuries.

MR LITTLEMORE:   The jury treated it as an abstract by answering question 2 the way they did.  What the jury was saying was, “Yes, there was a wet floor in the lavatory” but, given the evidence of the plaintiff that he knew there was a wet floor, there was a wet floor every morning he went there, that he expected the floor to be wet, and that he was not paying attention, the jury are entitled to say, “Even though it was an unsafe system, the blame for it is so overwhelmingly to be attributed to the plaintiff that it is appropriate to say that the whole of the blame should go to the plaintiff”.

McHUGH J:   That argument itself raises some serious questions, it seems to me, in terms of reasonableness in the verdict, Mr Littlemore.  It is the employer’s system and in most cases you will find the employer’s system, when there is a defect in it, there is a result and effect of systematising the plaintiff’s contributory negligence.

MR LITTLEMORE:   With respect, your Honour, that is a bit like a cleaner saying, “I was mopping the floor; the employer created a slippery floor and I fell on my own slippery floor.”

McHUGH J:   But that is a casual act of negligence.  But when the plaintiff, day after day, is doing something in a particular way, not taking care for his own safety but performing a system which the employer either encourages or condones, it is very difficult to say that the plaintiff should bear even more than 50 per cent of the responsibility in most cases.

MR LITTLEMORE:   There are two things to say to that, your Honour.  There is no evidence that he did it day after day.  But this was a casual act.  He does not say he ever before charged in there and slipped on the slippery floor, having forgotten about it.

McHUGH J:   If it was a casual act, how was the defendant made liable?

MR LITTLEMORE:   The defendant was not made liable.

TOOHEY J:   No; but perhaps the question is, “How was the defendant held negligent?”

MR LITTLEMORE:   If it had some causal act of negligence - everything the plaintiff relied on, your Honours, was a failure to warn.  That was the particular of negligence upon which the plaintiff relied, that there should have been one of those yellow plastic signs outside saying, “Caution.  Slippery floor”.  The whole of the evidence was that that would have made no difference.  The man knew the floor was wet.  He always knew the floor was wet.  It was as if he were one of the cleaners, because he had to work there at the same time as the cleaners wet the floor.  He had total awareness of that fact.

TOOHEY J:   You may well be right, Mr Littlemore, in all of that.  I am not sure that it really disposes of the problem raised by the jury’s answers to the questions.

MR LITTLEMORE:   We say that the jury’s answers ought to be read as a verdict for the defendant, that is that the entire culpability for the plaintiff falling rests upon the plaintiff.  That is how the answers ought to be read, we respectfully submit.  We would say, your Honours, that this question can be a matter attracting the interest of the Court, but not in these particular circumstances where were the plaintiff to have the entire verdict, were he to be held to be not contributing at all to his fall, nobody could argue with a verdict of $38.  Leave is really sought to relieve the plaintiff of the liability for costs and that is not a special leave matter.  That is the position we would respectfully take.

TOOHEY J:   Yes, thank you

We do not need to hear further from you, Mr Evatt.  There will be a grant of special leave in this matter.

AT 10.12 AM THE MATTER WAS CONCLUDED