PRACTICE AND PROCEDURE - Consent orders allowing appeal and remitting proceeding for rehearing - Disposition having resource implications for administration of justice - Need to identify error - Need to ensure error made in first trial not replicated in retrial - Consent orders made - Matter remitted for rehearing.

1. On 25 March 2010, the defendant, who was carrying on business as 'Harvey Norman Furniture', sold a dining table with a glass tabletop to the plaintiff. The tabletop was made of annealed glass, not safety glass.
2. On 12 October 2021, the plaintiff was at home, talking with his wife, when he put one knee onto a chair and leaned forward to rest his elbows on the table. As his elbows met the glass tabletop, the glass broke and the plaintiff fell forward, lacerating his forehead on a broken edge of the glass ('the accident').
3. Subsequently, the plaintiff commenced a proceeding in the County Court against the defendant for damages for personal injury caused by the accident. In his proceeding, the plaintiff alleged that the injuries he suffered as a result of the accident were caused by the negligence of the defendant.
4. The trial of the proceeding was heard by a judge and jury between 22 September 2025 and 1 October 2025. On 1 October 2025, the jury returned a verdict for the defendant by giving the following answer to the following question:

Question: Did the defendant breach a duty of care owed to the plaintiff by failing to provide a warning or other information that the glass tabletop was not made of safety glass?

Answer: No.

1. In accordance with the jury's verdict, the trial judge entered judgment for the defendant against the plaintiff.
2. On 12 November 2025, the plaintiff filed an application for leave to appeal. In his application for leave to appeal, the plaintiff advanced the following proposed grounds of appeal:
   1. The judge erred in law by failing to direct the jury adequately or at all (a) that the respondent [defendant] owed a duty of care to the applicant [plaintiff], (b) on (i) the legal principles governing the existence and scope of duty of care, (ii) the scope of the duty of care owed to the applicant, and (iii) how to apply the duty of care owed to the applicant to the jury's assessment of breach of that duty.
   2. Alternatively to ground 1, the judge denied the applicant procedural fairness by failing to address the matters addressed in ground 1.
3. On 19 December 2025, the parties filed a joint memorandum ('the joint memorandum') setting out their agreement that the appeal should be allowed on ground 1. They now seek orders by consent that leave to appeal be granted, the appeal be allowed, the judgment and orders made in the County Court on 1 October 2025 be set aside, and that the matter be remitted to a different judge of the County Court for retrial.
4. Even though the orders proposed by the parties are sought by consent, as has been said before, they cannot be made unless this Court is satisfied that the judgment under challenge, and the orders made pursuant to it, are wrong - or at least sufficiently problematic to warrant that they be set aside and a new hearing ordered.[1] As has also been said before, this Court needs to be affirmatively satisfied that the proceeding should be remitted for rehearing, because any such disposition has resource implications for the administration of justice, and involves costs to the community. Additionally, it is desirable that, in the interests of justice, if the matter is to be reheard, any error made at first instance should not be replicated.[2]
5. For the reasons which follow, leave to appeal will be granted, the appeal will be allowed, and the matter will be remitted to the County Court for a retrial.

1. In its defence, the defendant admitted that it sold the table to the plaintiff in March 2010. Otherwise, the defendant's responses in its defence consisted of non-admissions and denials. However, at trial, the issues between the parties were more confined, being limited to questions of duty, breach, causation and quantum. More specifically, notwithstanding the defendant's non-admission in its defence of the accident, and the plaintiff's allegation that he suffered an injury as a result of the accident, those matters were not the subject of any real dispute at trial.
2. In his statement of claim,[3] the plaintiff pleaded that the defendant owed him 'a duty to take reasonable care for his safety as a user of the table and not to expose him to a risk of damage or injury of which it ought to have known'. In its defence, the defendant 'did not admit' this allegation. Given the position the defendant took at trial, the defendant's failure to admit the existence of any duty of care to the plaintiff was not entirely helpful.

1. At trial, the question of duty came to a head during the course of a no case submission made by the defendant's trial counsel.[4] Early in the no case submission, the defendant's counsel said, 'We accept that the defendant did owe a limited general common law duty, as a supplier of this product, to a consumer'. However, a little later, with reference to whether there was any duty on the part of the defendant to make inquiries of the manufacturer of the table, counsel said, 'We say no duty exists'.
2. Following the judge's rejection of the defendant's no case submission, there was discussion between the judge and counsel about the form of the questions the jury would be required to answer in giving its verdict. Early in this discussion, senior counsel for the plaintiff correctly told the judge that 'the question of whether or not there is a duty is a question of law, which is for the judge'.
3. Notwithstanding that clear statement, and a statement made shortly thereafter by the judge that he would 'be telling the jury that there is a general duty of care', the discussion between the judge and counsel in relation to the liability questions, then proposed to be asked of the jury, proceeded to consider, as a first question for the jury, formulations such as:

Did the defendant owe the plaintiff a duty of care to provide the plaintiff [with] notice that the table was not made of safety glass?

Did the defendant owe the plaintiff a duty to take reasonable care for his safety by providing an instruction or warning?

1. If one of these versions was to be the first question for the jury, it appears to have then been contemplated by the judge and counsel that the second question would be as follows:

If satisfied of such a breach, did such a breach cause the plaintiff injury, loss or damage?

1. Given that none of the proposed versions of question 1 referred to breach, it is not immediately apparent how the jury could have been expected to cope with this proposed form of question 2. That said, and while the final form of the jury questions remained unresolved, trial counsel addressed the jury on the basis that question 1 (which the jury were told would subsequently be provided to them in written form) would be:

Did the defendant owe the plaintiff a duty to take reasonable care for his safety by providing a warning or other information that the glass tabletop was not made of safety glass?[5]

1. In the course of his final address, trial counsel for the defendant made the following submissions to the jury on the issue of duty:

The duty at law on a defendant, such as [the defendant] in this case, is to take reasonable care for the plaintiff's safety and in this case we say that the duty is to ensure that we sell furniture which is free from any potentially unsafe defect.

...

The first thing that you'll be asked is ... 'Did the defendant ... owe the plaintiff a duty to take reasonable care for his safety by providing him with instructions or warnings in relation to the fact that the table was not made of safety glass?'

So that's what will be put to you ... and that will be the question that you'll have to answer.

We say, certainly, 'no'. [The defendant] did discharge its duty to the plaintiff to take reasonable care. It discharged that duty by selling him a table which was perfectly safe.

1. A little later, when dealing with causation, trial counsel for the defendant submitted to the jury:

So we say even if you were to find a duty - which we say you certainly shouldn't - even if you were to find a duty, that duty is not causative of the loss.

1. After both counsel had addressed the jury, there was a further discussion between the judge and counsel about the form of the questions to be put to the jury. During this discussion, the judge said that the then proposed version of question 1 ran 'the risk and the vice ... of the jury being asked to give an answer to a legal question'. An alternative version of the first jury question was then proposed by the judge as follows:

Did the defendant breach a duty of care to the plaintiff by failing to provide a warning or other information that the glass tabletop was not made of safety glass?

1. Senior counsel for the plaintiff told the judge that he had no problem with that version 'as long as your Honour's directions address the general duty of care, which is admitted'. This was no doubt a reference to the statement made by the defendant's trial counsel, during the course of the no case submission, that the defendant accepted that it owed 'a limited general common law duty, as a supplier of this product, to a consumer'.
2. In response to the new form of question 1 proposed by the judge, trial counsel for the defendant made the following submission to the judge:

The issue there is - and I'm sure it can be fixed - is that if that is the form of the question - and we don't object to it ... we simply say that, of course, the form of the question would then presuppose a duty existing. As long as that is dealt with in your Honour's charge, as it was in final address ...then that will fix it.

1. Following further discussion, the judge determined that the first jury question would be in the form he had proposed. This discussion concluded as follows:

[Defendant's counsel]: Thank you, your Honour. And again, that would accord, again with the addresses that have been made already to the jury - - -

His Honour: Yes.

[Defendant's counsel]: - - - and obviously the - - -

His Honour: Yes.

[Defendant's counsel]: From our perspective, there was no such duty.[6]

His Honour: No, no. Plainly. I understand that.

1. Ultimately, as promised, the jury were provided with a document setting out the questions they were required to answer in giving their verdict. At the risk of some repetition, those questions were:
   1. Did the defendant breach a duty of care owed to the plaintiff by failing to provide a warning or other information that the glass tabletop was not made of safety glass?
   2. If yes to question 1, was a breach of that duty a cause of the plaintiff's injury, loss and damage?

1. Notwithstanding his Honour's statement to counsel in the course of argument that he would tell the jury that the defendant owed the plaintiff a 'general duty of care', the judge commenced his charge as follows:

This case concerns fundamentally the question as to whether or not the defendant had a duty of care to the plaintiff when it sold the plaintiff the glass-top table in 2010 and at which the plaintiff was injured on 12 October 2021, in the evening, at his home, when the top shattered.

1. The judge then explained to the jury the parties' competing positions on duty as follows:

You know that [counsel the plaintiff], on behalf of his client, says that a duty of care existed at the time of the sale of the glass-top table and that was a duty to warn that the glass-top table was not made of safety glass and you will see in Question 1 the language there, 'a warning or other information', and what that means is what it says: a warning or other information that pertains to the table not being made of safety glass.

Now, that warning, of course, as in ordinary parlance, can be somebody telling him - a salesperson - or the provision of some document identifying that the table was not made of safety glass. But it relates to what the glass was; that is to say, the plaintiff relies on an alleged failure to comply with a duty at law to give to the plaintiff, at the time of sale, a warning of that nature.

Now, you know that [counsel for the defendant] has submitted to you that the circumstances of the sale of this glass-top table gave rise to no such duty of care.

1. Having identified the parties' positions, the judge told the jury that he would 'describe to you [the jury] some of the more specific legal requirements that arise in this case that you [the jury] will need to turn your mind to'. The judge then said:

First, the law does not impose a duty of care on everyone to everyone else. In other words, there is no universal duty of care and if there was it would soon become unworkable. Instead, the law has quite cleverly evolved and developed a series of principles that define when a duty of care is owed by one person to another and what the parameters or scope of that duty is. There are certain well-established categories of relationship in which the law imposes a duty of care on one person to exercise reasonable care to another to avoid a foreseeable risk of injury.

Notably, this exists in the workplace. An employer has a positive obligation to ensure that the workplace, broadly speaking, is safe. The law also recognises that people who travel on the road in cars owe a duty of care to other drivers and road users. But the law also recognises that the categories of negligence are not static or closed and just because a claim may appear novel does not necessarily mean that the law cannot provide a remedy.

I direct you as a matter of law that a seller of products may owe a duty to persons who purchase a product to take reasonable care to protect a purchaser of the product against a reasonably foreseeable risk of injury in the use of what it sells.[7]

Whether or not [the defendant] discharged the duty of care that it is alleged by the plaintiff was owed to him - and, of course, which duty of care [the defendant's counsel] says you ought not to be satisfied existed in the circumstances of this case - must be looked at objectively.

1. It is well-settled that in a jury trial where a plaintiff claims damages for negligence, the question of whether the defendant owed the plaintiff a relevant duty of care is a question of law for the judge; whereas, questions of breach and causation are for the jury.[8] At various points during the trial, this delineation appears to have been expressly accepted by at least the judge and senior counsel for the plaintiff.
2. That said, the trial was muddied by the repeated conflation of the issues of duty and breach by the defendant's trial counsel. As the parties now correctly recognise, what occurred at trial led to the jury being given no proper instructions by the judge concerning the duty of care owed by the defendant to the plaintiff, and/or how they were to apply the facts as they found them on the issue of breach.
3. In the joint memorandum, the parties assert (and, more particularly, the defendant accepts) that this case did not involve any question of a 'novel'[9] duty. Rather, as the parties agree, it was a case concerning an established duty of care owed by a retailer to a consumer. In support of that position, the parties refer to the Full Court's decision, in Thompson v Johnson and Johnson,[10] wherein the Full Court said:

The manufacturer and retailer must act reasonably in placing its product on the market. The almost infinite variety of circumstances forbid any categorial exegesis of the manner of performance of the relevant duty of care.

Accordingly, the duty of care cannot be categorised in the circumstances of such a case as being merely a duty to warn or alternatively to withdraw the product from the market. The duty is a duty to take reasonable care in the Donoghue v Stevenson sense to avoid injury or harm being suffered by those using the product as intended. In some circumstances, a discharge of such duty of care might require and demand that the product be withdrawn from the market so as to prevent it being used. In other circumstances, in order to discharge the duty it might be necessary to give adequate warning as to the risks involved in its use. It does not follow that the failure to warn with respect to those risks will necessary constitute a breach of duty. In each case it will be necessary for the tribunal of fact to determine whether in all the circumstances those marketing the goods failed to take reasonable care and whether that failure was a cause of the injury suffered by the user.[11]

1. While Johnson and Johnson involved two defendants who were both manufacturers and retailers, the description of the scope of the duty owed by those parties, as set out above, is accepted by the parties as being that applicable in the present case, notwithstanding that there is no allegation that the defendant in this case played any part in the manufacturing of the table.[12]
2. The issues of duty and breach were conflated by the defendant's trial counsel's repeated statements that 'no duty existed' and/or 'no such duty existed'. Similarly, counsel's confusing (if not contradictory) references to a 'limited duty' being owed, unaccompanied by any specificity as to the contents of that duty, were unhelpful. The duty of care owed by the defendant to the plaintiff is, as I have already said, now accepted by the parties to be that described by the Full Court in Johnson and Johnson: no more; no less. It is not correct or useful to describe that duty as 'limited'.
3. At no point in his charge did the judge give any direction to the jury that the defendant owed the plaintiff a duty of care (even that so-called 'limited' duty conceded by the defendant's counsel at trial) or any direction as to the content of that duty of care. Without being prescriptive as to any particular form of words, on the issue of duty and the parties' respective positions, given the concession made by the defendant's trial counsel this case required the judge to direct the jury along the following lines:

Members of the jury, I direct you as a matter of law that in this case the defendant, as the retailer of the table, owed the plaintiff a duty of care. The duty of care was a duty to take reasonable care to protect persons (including the plaintiff) who might use or come into contact with the table against any reasonably foreseeable risk of injury.[13]

In this case, the plaintiff alleges that the defendant breached that duty of care by failing to provide him with a warning or other information that the glass tabletop was not made of safety glass. The plaintiff's case is that that breach of the duty of care owed by the defendant was a cause of the injuries he sustained in the accident.

On the other hand, the defendant's case is that reasonable care did not require it to provide any such warning or information as alleged by the plaintiff, and that it was not negligent in selling the table without any such warning. The defendant also contends that if, contrary to its submission that it was not negligent, you find that there was a breach of duty on the defendant's part, then any such breach as you may find was not a cause of the plaintiff's injuries.[14]

1. In the circumstances of this case, the judge was required to direct the jury as to the existence and scope of the duty of care owed by the defendant to the plaintiff,[15] and then to give the jury specific directions as to how they should deal with the issues of breach and causation which were matters solely within their province.
2. Instead, at its highest, the judge directed the jury that 'as a matter of law a seller of products may owe a duty to persons who purchase a product to take reasonable care ...',[16] before subsequently telling them that the duty of care alleged by the plaintiff was something that the defendant 'says you ought not to be satisfied existed in the circumstances of this case'. Thus the judge impermissibly left to the jury an issue of law which he was required to determine, and about which he was required to give them directions.
3. The defendant's concessions in this Court that, it is not possible to conclude that, had the jury been properly directed as to the duty of care owed, the same verdict on Question 1 would have inevitably been reached,[17] and that the appeal should be allowed, must be accepted; as must the parties' joint position that there should be a retrial because it is not possible for this Court to determine for itself the plaintiff's underlying proceeding.

1. I will make orders granting the plaintiff leave to appeal, allowing the appeal, setting aside the orders made in the County Court on 1 October 2025, and remitting the proceeding to the County Court for a retrial.

[1] Hennes v Hobsons Bay City Council [2012] VSCA 215, [7] (Harper JA, Beach and Davies AJJA) ('Hennes').

[2] Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59, [17] (Nettle, Redlich and Weinberg JJA); Hennes [2012] VSCA 215, [7]; Alegria v Transport Accident Commission [2017] VSCA 379, [6] (Osborn and Beach JJA); Major Carpets Pty Ltd v Marandos [2018] VSCA 133, [8] (Beach JA); Lakic v Woolworths Group Ltd [2023] VSCA 79, [6] (Beach and Kaye JJA). See also Tiba v Transport Accident Commission [2025] VSCA 236 (Richards and Kenny JJA).

[3] The version of which, which was current at trial, was a document dated 28 August 2025 and headed 'Proposed Amended Statement of Claim', and was contained within an Amended Writ dated 5 October 2023.

[4] Not counsel representing the defendant in this Court.

[5] For the reasons given below at paragraphs [28]-[34], this proposed question was not appropriate. Having regard to the delineation of responsibilities between the judge and jury, it is difficult to contemplate how it could ever be thought to be appropriate to ask a question of a jury that commences, 'Did the defendant owe the plaintiff a duty to take reasonable care ...'.

[8] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 520 [4], 520-1 [6] (Gleeson CJ); Amaca Pty Ltd v King [2011] VSCA 447; (2011) 35 VR 280, 291 [51] (Nettle, Ashley and Redlich JJA) ('King'). See also Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 443 [62]-[63] (Gummow J); McCullough v Footscray Football Club Ltd (Jury Ruling) [2025] VSC 443, [125]-[130] (O'Meara J) ('McCullough').

[9] See McCullough [2025] VSC 443, [125].

[10] [1991] VicRp 84; [1991] 2 VR 449, 490 (Murphy, O'Bryan and McDonald JJ) ('Johnson and Johnson').

[12] In respect of whether a non-manufacturing distributor owes any and what duty of care to a consumer, see also McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187, 189 [1] (Mason P), 193 [27] (Hodgson JA) and 198-209 [59]-[127] (Ipp JA).

[13] Accepting, as the parties have in this Court, that Johnson and Johnson describes the duty owed by the defendant to the plaintiff in this case; and not falling into the error identified by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 290 [103] of formulating the duty too narrowly or too broadly. Additionally, giving a direction in the form of this suggested paragraph obviates the need for the judge to give directions of the kind given in the first two paragraphs of the extract set out in paragraph [26] above. With respect, what was said in those paragraphs could not have assisted the jury in the task which they were required to perform.

[14] Obviously, the charge would also need to include the standard directions about reasonable foreseeability; the fact that a standard of perfection is not required; the fact that the issue of breach has to be looked at objectively, and not in retrospect; the fact that it is for the jury, as the judges of fact, to set the standard on the facts and circumstances as the jury finds them to be; and (more specifically in this case) the fact that there can be a breach of duty by a retailer failing to do something which a reasonably prudent retailer would have done in all the circumstances; as well as causation. Moreover, the charge would need to be tailored to take into account those provision of the Wrongs Act 1958 that have application in this case (see, for example, ss 48 to 52 and 56).

[15] See King [2011] VSCA 447; (2011) 35 VR 280, 291-2 [51] (Nettle, Ashley and Redlich JJA).

[17] See Gebrehiwot v State of Victoria [2020] VSCA 315, [126] (Tate, Kaye and Emerton JJA).