Glover Gibbs P/L t/as Balfours NSW P/L v Laybutt

LOWER COURT District Court JURISDICTION : LOWER COURT DC 11995 of 2001 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40255 of 2003

MEAGHER JA IPP JA PALMER J

Wednesday, 3 March 2004 GLOVER GIBBS PTY LIMITED t/as BALFOURS NSW PTY LIMITED v ROBYN VANESSA LAYBUTT

FACTS: The respondent successfully sued her employer, the appellant, for damages for injuries arising out of an accident which occurred at work on 12 September 1999, in a trial in the District Court which lasted 13 days. The employer appeals that decision.

The parties gave consent to the Court of Appeal to narrow the issues to be tried to:

1. Whether the judge's directions to the jury on the question of 'negligence or no negligence' were erroneous; and 2. whether the judge's refusal to order a verdict by direction in favour of the defendant should be set aside,

which may be merged into one question, as a finding that the judge's directions to the jury were erroneous in the manner alleged would have left the judge with no option but to enter a verdict for the defendant.

THE DECISION: Per Meagher JA (Ipp JA and Palmer J agreeing):

1. Appeal allowed;
2. Verdict and judgment below be set aside:
3. Enter verdict and judgment for the defendant;
4. Order the plaintiff to pay the defendant's costs below;
5. Order the respondent to pay the appellant's costs of the appeal, but to have a Certificate under the Suitors' Fund Act 1951.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40255 of 2003

MEAGHER JA IPP JA PALMER J

Wednesday, 3 March 2004 GLOVER GIBBS PTY LIMITED t/as BALFOURS NSW PTY LIMITED v ROBYN VANESSA LAYBUTT Judgment 1 MEAGHER JA: The plaintiff/respondent, Mrs Laybutt, successfully sued her employer, the defendant/appellant, Glover Gibbs Pty Ltd for damages for injuries arising out of an accident which occurred at work. She received a very large verdict at the hands of a jury in a trial conducted by Phegan DCJ. Her employer now appeals. 2 The trial was a lengthy one (some thirteen days), and the Grounds of Appeal very numerous. With the consent of counsel, the Court has narrowed the issues to be tried to two: (a) whether the judge's directions to the jury on the question of negligence or no negligence were erroneous, and (b) whether the judge's refusal to order a verdict by direction in favour of the defendant should be set aside. 3 And these two questions really merged into one, as a finding that the judge's directions to the jury were erroneous in the manner alleged would have left his Honour with no option but to enter a verdict for the defendant. 4 The plaintiff was working for the defendant, and on the day in question one of her tasks (the task on which she came to grief) was reassembling a "donut" machine. The date was 12 September 1999. She had never done such a thing before, nor had she ever received instructions or training about how to perform the task. Despite this, her supervisor told her to "give it a go". The machine had two cylinders, and "common sense" told her that the inner cylinder fitted into the outer cylinder. This, seemingly, involved fitting certain lugs into a groove which ran around the outer cylinder. 5 On the day in question, the outer cylinder fell onto her hand. Immediately, it seemed to do little damage; according to the defendant, it did no permanent damage at all; according to the plaintiff, it caused some permanent damage, and of a very serious kind. 6 The plaintiff said that she did not know how the accident happened. The outer cylinder "just slipped". She had trouble explaining. She apparently hung on with her right hand, but the outer cylinder slipped, possibly because she had not put the lugs in the groove. 7 She performed the same reassembly task after her accident on 12 September 1999 in the same way that she did when the accident occurred. 8 The matter was ultimately put to the jury on the basis that the defendant was negligent in failing to instruct the plaintiff and/or in failing to supervise her work. 9 The central difficulty in the case lay in the plaintiff's inability to explain what instruction were needed, or could have been given, a difficulty which can only have been exacerbated by her evidence that the machine's operation was a matter of "common sense". 10 In other words, at the end of the day, his Honour left to the jury to decide (a) whether the defendant should have given the plaintiff instructions, (b) if so, what those instructions should have been, (c) whether those instructions would, if given, have been followed, and (d) whether those instructions, if given and followed, would have averted an unexplained event.

Not one word of evidence was given on any of these questions. 11 No doubt, there are cases in which it is clear that some industrial malfunction has occurred, although the plaintiff cannot state precisely what it was. But the law has not, in any opinion, yet descended to the state where a judge may legitimately leave it to the jury to guess what the plaintiff's case should be. 12 In my view the application for a verdict by direction should have been given. 13 In my view, the following orders should be made: 1. Appeal allowed; 2. Verdict and judgment below be set aside; 3. Enter verdict and judgment for the defendant; 4. Order the plaintiff to pay the defendant's costs below; 5. Order the respondent to pay the appellant's costs of the appeal, but to have a Certificate under the Suitors' Fund Act 1951. 14 IPP JA: I agree with Meagher JA and Palmer J. 15 PALMER J: I agree with the orders proposed by Meagher JA and with his Honour's reasons. However, I wish to add some observations concerning the way in which this litigation has been conducted.

16 When this appeal was opened, Meagher JA remarked: "I must say, what seems to be an extraordinarily simple case has blown up into a monster". Senior Counsel for the appellant earnestly agreed - and so do I.

17 In September 1996, the plaintiff in the court below suffered a slight laceration to the little finger of her right hand while she was reassembling a piece of equipment in her employer's premises. The equipment, part of a doughnut making machine, consisted of two metal cylinders, each of which can easily be held in one hand. One cylinder fitted inside the other and required to be screwed into place. The process of screwing one cylinder inside the other was, in the words of the respondent's counsel in this appeal, "not rocket science". In other words, it was a very simple process indeed, and one that any person of ordinary intelligence could perform merely by observing how one cylinder fitted inside the other.

18 The plaintiff's evidence about how the accident happened was that while she was inserting one cylinder inside the other, the outer cylinder "just slipped". She agreed that she must have relaxed her grip on the outer cylinder so that it slipped down about a centimetre and caught her right little finger between the edge of the outer cylinder and the edge of the inner cylinder. The accident was of the simplest conceivable kind - an occurrence of a type that happens frequently in everyday life such as when, by inadvertence, one jams one's finger or drops something on one's toe.

19 This everyday little accident occurred in a moment and takes but a moment to describe. Yet it spawned a piece of litigation which occupied eleven full days of evidence in the District Court, more than a day in the judge's summing up, and a further day of submissions - thirteen days in all. The plaintiff and nine other witnesses gave evidence, including no less than six doctors. The appeal to this court generated nine substantial volumes of Court Books, comprising 1,546 pages, the vast bulk of which was never referred to in argument. The appeal, however, was disposed of by Meagher JA in a little more than two pages of judgment - an accurate reflection, in my respectful opinion, of just how simple and straightforward the critical issue for decision in the case really was.

20 Quite apart from the monopolisation of court resources to the detriment of other litigants, the cost to the parties of such a grossly overblown piece of litigation must be a cause for grave concern. If what has occurred in this case is at all representative of the present culture of litigation arising out of personal injury, then that culture cannot be allowed to continue: justice does not require it, litigants do not want it, and the community cannot afford it.

21 The responsibility for changing the culture of litigation lies both with the courts and with the legal profession. Much has been written curially and extra-curially concerning the duty of the legal profession to conduct cases efficiently, expeditiously and economically: see e.g. Ipp JA Lawyers' Duties to the Court (1998) 114 LQR 63, and see the many judicial statements in the cases cited in footnotes 209, 211 and 212. But members of the legal profession alone cannot be expected to take the lead in paring issues for trial to the essential, confining documentary evidence to what is important and limiting cross examination to the critical questions for decision; they must be encouraged and supported by the courts. The courts should be more willing to intervene when counsel are dwelling too long on irrelevancies or are engaging in needless repetition, and judges should know that in this endeavour they, in turn, have the support of the appellate courts.

22 The Supreme Court, but not the District Court, has all the power it needs in order to promote the efficient conduct of trials. SCR Pt 1 r 3(1) states that the overriding purpose of the Supreme Court Rules in their application to civil proceedings is to facilitate "the just, quick and cheap resolution of the real issues in such proceedings". Part 34 rule 6 gives the court a general discretion to determine the appropriate procedure to be followed in any particular trial. Section 135(c) of the Evidence Act 1995 (NSW) enables the court to refuse to admit evidence if its probative value is "substantially outweighed by the danger that the evidence might … cause or result in undue waste of time".

23 Most importantly, however, Pt 34 r 6AA contains very wide powers to control the time which a trial may take. That rule provides: (1) At any time before or during a trial, the Court may by direction: (a) limit the time to be taken in examining, cross-examining or re-examining a witness,

(b) limit the number of witnesses (including expert witnesses) that a party may call,

(c) limit the time to be taken in making any oral submissions,

(d) limit the time to be taken by a party in presenting its case,

(2) Any such direction must not detract from the principle that each party is entitled to a fair trial, and must be given a reasonable opportunity to lead evidence, cross-examine witnesses and make submissions.

(3) In deciding whether to make any such direction, the Court may have regard to the following matters in addition to any other matters that may be relevant:

(a) the subject matter, complexity or simplicity of the case,

(c) the volume and character of the evidence to be led,

(e) the need to place a reasonable limit on the time allowed for the trial,

(f) the efficient administration of the Court lists, and

(g) the interests of parties to other proceedings before the Court.

(4) The Court may, at any time, direct a solicitor or barrister for a party to give to the party a memorandum stating:

(a) the estimated length of the trial and the estimated costs and disbursements of the solicitor or barrister,

(b) the estimated costs that would be payable by the party to another party if the party were unsuccessful at trial.

24 Under this rule, the power already exists in the Supreme Court to conduct what has recently come to be called "a stop watch trial", that is, a trial limited in advance of the hearing to such duration as the judge decides is necessary to afford fairness to the parties in the light of the issues involved and the other circumstances pertaining to the case.

25 Speaking extra-curially at a ceremony to mark the opening of the 2004 law term, the Chief Justice said, in the context of commercial litigation: Over the last two decades the cost structure of most Australian commercial enterprises has been transformed beyond recognition. One of the few areas of business expenditure which has not notably diminished is the cost of dispute resolution. The business community will expect a more cost effective service. For example, we need to consider the adoption of a stopwatch system by which the parties agree, in advance, to the total time that a case can take. How they allocate their time - to opening, examination in chief, cross-examination and addresses - is a matter for each party. The total time, however, does not change.

26 The concept of a "stop watch trial" is by no means new. It has been familiar in the courts of the United States of America for years: see e.g. Rumel The Hourglass and Due Process: The Propriety of Time Limits on Civil Trials (1992) 26 USF L Rev 237. Neither is the concept new in Australia. It was discussed extensively and informatively in Your Time is Up - The Imposition of Time Limits for the Presentation of Cases at Hearings (1995-96) Howell, Vol.5 Journal of Judicial Administration p.170, and by Ipp J (as his Honour then was) in Reforms to the Adversarial Process in Civil Litigation - Part II (1995) 69 ALJ 790, at 805ff.

27 Yet although the power to conduct a "stop watch trial" has existed in the New South Wales Supreme Court Rules since 2000, when Pt 34 r 6AA was introduced, it is, in my experience rarely, if ever, utilised. One reason is that judges are often able to keep a case moving satisfactorily by making a few more or less tactful remarks now and then to counsel. Sometimes, however, such remarks fall upon deaf ears. A particularly difficult problem also arises when a case is being conducted by a litigant in person, who may have little idea of what is legally relevant and who may believe strongly that everything connected with the matter needs to be investigated thoroughly in court. Even when repeated encouragement from the Bench is unavailing, judges are reluctant to impose time limits on the conduct of trials, perhaps for fear of being seen either to be unfair or "as going through the formalities of a hearing as quickly as possible, by imposing time limits, even though the judge has already decided what the outcome of the case is to be": Howell op cit at 173.

28 In my opinion, what has happened in the present case demonstrates starkly that the courts should be more ready to give effect to a change in the culture of litigation which the Supreme Court Rules already reflect. It is a change long called for by the courts themselves. In Ashmore v Corporation of Lloyds [1992] 1 WLR 446 at 448, Lord Roskill said: The Court of Appeal appear to have taken the view that the plaintiffs were entitled of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been adduced. With great respect … I emphatically disagree … Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues.

29 In E.I. du Pont de Nemours & Co v. Commissioner of Patents (1987) 16 FCR 423 at 424, Sheppard J, with whose remarks Burchett J agreed, said: Courts are publicly funded institutions. Except for a nominal filing fee, they provide their facilities free of charge. The judges who preside over them have a duty, consistently with their primary duty to administer justice, to do their utmost to prevent waste of public time and money. The days when parties were left at leisure to pursue private litigation in the way that they thought best suited their purposes have long gone. Courts have an overriding obligation to see to it that those using their facilities are proceeding in a way best calculated to bring litigation to an end at the earliest possible moment so long as the primary goal of achieving justice is not lost sight of.

30 In the present case, the trial judge could not avail himself of a rule in the District Court Rules in terms of Pt 34 r 6AA of the Supreme Court Rules. In my opinion, it is highly desirable that the District Court Rules, and the rules of other courts and tribunals, be amended to rectify this omission.

31 However, it is not enough that power to contain proceedings within reasonable bounds is given to the courts. That power needs to be exercised vigilantly. This unfortunate case illustrates the importance of counsel, solicitors and judges bearing in mind the principle of proportionality in the conduct of litigation. The fact that the critical question in this case was so straightforward yet the proceedings occupied thirteen days of court time indicates that the obligation to keep litigation within reasonably proportionate bounds was quite forgotten.

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