Jajieh v Woolworths Ltd

Civil Liability Act 2002, ss 15B, 16 LEGISLATION CITED: Civil Procedure Act 2005, s 98 District Court Act 1973, ss 51(2)(b), 51(4) Uniform Civil Procedure Rules 2005, rr 42.1, 42.2

Adeels Palace Pty Ltd v Moubarack; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685 Andrews v John Fairfax & Sons [1979] 2 NSWLR 184 Bridges v Consolidated Press Ltd, NSW Court of Appeal, unreported, 16 June 1970 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 CASES CITED: Jajieh v Woolworths Ltd [2010] NSWDC 239 NSW Bar Association v Stevens [2003] NSWCA at [83] Penrith Whitewater Stadium Ltd v Lesvos Pty Limited [2007] NSWCA 103 Richards v Cornford [2010] NSWCA 99 Rouse v Shepherd (No2) [1994] 35 NSWLR 277 Woolworths Limited v Strong & Anor [2010] NSWCA 282

PARTIES: Diane Jajieh (Plaintiff) Woolworths Ltd (Defendant)

COUNSEL: Mr T Boyd with Mr J Cairn (Plaintiff) Mr D Ronzani (Defendant)

SOLICITORS: Kheir & Associates (Plaintiff) Bartier Perry (Defendant)

On 26 October 2010 judgment was given in favour of the plaintiff in these proceedings in the amount of $750,000 : Jajieh v Woolworths Ltd [2010] NSWDC 239. On that occasion, an order was made granting the parties liberty to apply if further orders were required. Each party now applies to seek further orders.

The plaintiff seeks an order pursuant to s 51(2)(b) of the District Court Act 1973 ["DC Act"] to extend the jurisdiction of the court beyond $750,000 in this matter to facilitate the entry of a judgment in her favour in the assessed amount of $766,793.

The plaintiff also seeks cost orders in two respects, first, an order for costs in relation to the previously vacated hearing date of 22 March 2010, where those costs were reserved, and secondly, a variation of the previous order for the defendant to pay the plaintiff's costs on the ordinary basis, seeking instead an order for such costs to be paid on the indemnity basis.

The defendant resisted each of the plaintiff's applications and sought a stay of the judgment pending the pursuit of an appeal to the Court of Appeal.

Application by plaintiff for extended jurisdiction.

For convenience, I shall first deal with the application by the plaintiff for extended jurisdiction pursuant to s 51(2)(b) of the DC Act.

Ordinarily, the jurisdictional limit of the court to enter judgment in this type of case is $750,000 : s 4 of the DC Act. That jurisdiction may be extended by a further 50 per cent if pre-conditions are met and a defendant raises no objection to jurisdiction prior to 3 months before the hearing date: s 51(2)(b) and s 51(4) of the DC Act.

The plaintiff argues that prior to 3 months before the vacated hearing date of 22 March 2010, and prior to the actual hearing date on 21 July 2010, in fact from 26 September 2009, when the plaintiff filed her statement of particulars, the defendant had ample notice of the potential for the plaintiff to obtain a damages award in excess of $750,000.

In this regard, by paragraph [12] of her outline of argument, the plaintiff points to a potential damages assessment of $770,729 calculated to the trial date. The plaintiff points out that this calculation makes no allowances for s 16 damages pursuant to the Civil Liability Act 2002 ["CL Act"] for non-economic loss, nor for any damages for future child care expenses pursuant to s 15B of the CL Act.

The plaintiff argues that in view of these calculations, it was the obligation of the defendant to object to extended jurisdiction. There was no such objection. The plaintiff further argues that these circumstances were within those contemplated in Richards v Cornford [2010] NSWCA 99, per Basten JA at paragraphs [44]-[45].

In contrast, the defendant submits that at the trial, the schedule of damages that was submitted by the plaintiff at the trial, as summarised at paragraph [4] of the principal judgment, did not approach or exceed $750,000, thus suggesting that the plaintiff was not contemplating or signalling a verdict in excess of $750,000.

In my view the plaintiff's statement of particulars filed on 26 September 2009 had the effect of placing the defendant on notice of the potential for a verdict in excess of the jurisdictional limit of the court. The claim was for unliquidated damages. The particulars filed by the plaintiff "were sufficiently precise to allow for a calculation" of the range of damages claimed by the plaintiff : Richards, per Basten JA at [46].

Accordingly, I consider that the plaintiff has satisfied the requirements of s 51(2)(b) and s 51(4) of the DC Act and she is therefore entitled to an order extending the jurisdiction of the court beyond the jurisdictional limit of $750,000 to enable her to recover a judgment in the amount of $766,793.

Application by plaintiff for costs of vacated hearing date

The plaintiff seeks an order for costs in relation to the costs wasted by reason of the vacated hearing date on 22 March 2010, as well as for the costs of the consequential directions hearing before the Judicial Registrar on 31 March 2010. The basis of the application to vacate the hearing date on 22 March 2010 was that one of the defendant's primary witnesses on the issue of liability was in hospital, and was therefore unavailable to give evidence at the trial. The plaintiff neither consented to, nor opposed the application to vacate the date, and the costs were therefore reserved.

As the plaintiff has succeeded in her action, in my view the defendant cannot reasonably resist an order that it should be liable for the plaintiff's costs of the whole proceedings, including the question of wasted costs that were reserved as a result of the vacated hearing date.

The plaintiff seeks an order that the defendant should pay her costs on the issue of liability on the indemnity basis because, at the time of the plaintiff's injury, the defendant had access to the same liability witnesses who were called in the plaintiff's case, yet the defendant called no evidence to contest the plaintiff's case on liability. The plaintiff points out this was so notwithstanding that the very reason the defendant successfully vacated the hearing date on 22 March 2010, was to enable it to call a witness on the issue of liability.

The plaintiff submits these circumstances warrant the exercise of discretion for a departure from the general rule that an order for costs on the ordinary basis should follow the event : s 98 of the Civil Procedure Act 2002; UCPR rr 42.1-42.2; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225.

The plaintiff relies upon Rouse v Shepherd (No2) [1994] 35 NSWLR 277, and the subsequent line of cases which approved that authority, to seek indemnity costs, arguing that the defendant should never have contested the issue of liability, thus warranting a departure from the general rule.

In my view, the plaintiff's submission in this regard is flawed. Notwithstanding that the defendant should be taken to have been aware of the general terms of the liability evidence of Mrs Shabbir and Mrs Sharma, the defendant was still entitled to test the evidence of the plaintiff and her liability witnesses even though the defendant called no evidence itself. It is not entirely clear on the evidence as to when the defendant made the decision not to call liability evidence. There is no basis for finding that liability should never have been contested. I therefore decline to order the defendant to pay the plaintiff's costs on the indemnity basis in connection with proving the issue of liability.

The onus is on the defendant to establish grounds for ordering a stay so as to justify a departure from the general rule that the plaintiff is entitled to the benefit of a judgment : Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685 at [694E].

The onus on the defendant is discharged if the defendant can show first, that there is no reasonable probability of retrieving the damages paid pursuant to a judgment in the event of a successful appeal, and secondly, that there should be reasonably arguable grounds of appeal : Andrews v John Fairfax & Sons [1979] 2 NSWLR 184, per Maxwell J at 189B, citing the remarks of Sugerman P, in Bridges v Consolidated Press Ltd, NSW Court of Appeal, unreported, 16 June 1970. These principles have been more recently confirmed in Adeels Palace Pty Ltd v Moubarack; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 per Hodgson JA at [2].

On this application the defendant could not point to any proposed grounds of appeal, but instead referred to the fact of a proposed appeal on liability and causation expressed in general terms.

In support of its application for a stay, and absent any specific draft grounds of appeal, the defendant also referred to the decision in Woolworths Limited v Strong & Anor [2010] NSWCA 282. Judgment in that case was delivered by the Court of Appeal on 2 November 2010, which was one week after I had delivered my reasons for judgment in this case.

In my view the decision in Woolworths Limited v Strong is of no assistance to the defendant in seeking a stay in this case. That case involved an absence of a system of inspection and the plaintiff's case failed on appeal, on the issue of causation, because it was found that it could not be shown that it was more likely than not that the plaintiff, in that case, would not have been injured if a proper system of cleaning and inspection had been implemented by the defendant : per Campbell JA at [63]-[70].

The result of the causation contest in this case was based on entirely different considerations. In this case, an employee of the defendant was found to have been told about the water spillage on the floor where the plaintiff had fallen in the premises, well before the plaintiff's fall, and in circumstances where that employee had simply forgotten to attend to the spillage and to have it cleaned up before someone slipped and fell : Jajieh v Woolworths Ltd [2010] NSWDC 239 at paragraphs [119]-[143]. On behalf of the defendant, Mr Ronzani submitted this was just a casual act of negligence. Be that as it may, it was an act for which the defendant was vicariously responsible.

On the first requirement for obtaining a stay, in this case, there was some evidence that the plaintiff has no financial means or resources, and it may be reasonably inferred from this evidence, that if the plaintiff were to be paid the verdict monies, or part of those monies, there could be difficulty in retrieving some or all of the monies paid over in the event of a successful appeal.

However, with regard to the second requirement for establishing an entitlement to a stay, in my view there is no evidence that would indicate the existence of reasonably arguable grounds of appeal.

In achieving a balance between the interests of the parties, the overriding consideration is what the interests of justice require : NSW Bar Association v Stevens [2003] NSWCA per Spigelman CJ at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Limited [2007] NSWCA 103, per McColl JA at [18].

In my view, in balancing the competing rights of the parties, it would be unjust to the plaintiff to order a stay where the defendant has only flagged an amorphously expressed intention to appeal and where the recent authority relied upon by the defendants suggesting a basis for appeal on the causation issue, relates to an entirely different set of factual circumstances.

Accordingly, I consider that it would be inappropriate for an unconditional or blanket stay to be ordered in this case absent the grounds to be relied upon for an appeal, even if such grounds were only in draft form. That said, given the defendant's stated intention to pursue an appeal, I consider that a temporary stay is in order, pending any further orders of the Court of Appeal that would be enabled once the actual grounds of appeal were known. In that regard, the Court of Appeal would be in a better position to determine whether there should be a stay pending the hearing of the appeal, and if so, upon what terms.

I make the following orders : (a) The jurisdiction of the court to deal with this matter is extended to $766,793, pursuant to s 51(2)(b) of the District Court Act 1973;

(b) The orders made on 26 October 2010 are varied with the effect that in lieu of the judgment amount of $750,000, judgment for the plaintiff is entered in the amount of $766,793;

(c) The defendant is to pay the plaintiff's costs thrown away by the vacation of the hearing date of 22 March 2010;

(d) The order that the defendant pay the plaintiff's costs of the proceedings on the ordinary basis is confirmed;

(e) The defendant is granted a temporary stay of the judgment for $766,793 for 28 days conditional upon the defendant filing a notice specifying its grounds of appeal;

(f) Questions concerning the continuation of, and any terms for the continuation of, the temporary stay so ordered, is to be determined by order of the Court of Appeal.

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