Plaintiff v Defendant

2 The plaintiff's application was made pursuant to leave which was reserved on 12 June 2019 at the conclusion of closing submissions.[2] The plaintiff's counsel did not apply for leave at the close of the defendant's case and so is technically barred from bringing this application for reasons of procedural fairness as explained by the Court of Appeal in Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd.[3] The essential point is that, unless a party reserves this right prior to the close of evidence, their opponent will not be on notice and so may be precluded from making an application, should they wish to do so, to reopen their case to adduce further evidence. Here, as there was no prejudice to the defendant, I exercised my discretion to grant the plaintiff leave, despite this technical deficiency, and to rule on the application on its merits.

3 After hearing the parties' submissions, I ruled against the plaintiff's application and informed the parties that I would deliver brief reasons. These are those reasons.

4 The plaintiff's application was put on the following grounds:

(a) the jury rejected the evidence of Colin Bloomfield, an independent witness to the transport accident, in circumstances where his credit was not challenged. As such that rejection was not open to the jury; and

(b) the finding of contributory negligence by the plaintiff was not open to the jury because, as a matter of fact, the defendant failed to maintain a safe distance between his tram and the plaintiff's motor vehicle. The defendant was therefore unable to stop the tram in time to avoid the collision.

5 The test to be applied in an application for judgment notwithstanding a jury's verdict is an onerous one and difficult to make good. In short, the plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return the verdict that it did, namely in relation to contributory negligence.

6 I cite with approval and adopt the summary of legal principles as set out by Kyrou J in King v Amaca:

In order for a defendant's application for judgment notwithstanding the jury's verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.

Where there is evidence to support the jury's verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury's conclusion.

A trial judge hearing an application for judgment notwithstanding the jury's verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases.[4]

7 In the present case, as a matter of common sense, it could only be said that there is no evidence upon which the jury, properly instructed, could find the plaintiff negligent in a contributory sense if it was not open to the jury to accept the defendant's version of the accident, that is, that the plaintiff moved off from the intersection on the 'green arrow' and then slammed on his brakes when it was not safe to do so.

8 On 5 June 2013 the plaintiff was driving a motor vehicle in an eastward direction along Droop St in Footscray. A tram, which was driven by the defendant, collided into the rear of the plaintiff's vehicle ('the accident').

9 The defendant admitted at trial that the accident occurred but denied negligence on the basis that the plaintiff suddenly slammed on his brakes, when it was not safe to do so, leaving him with no reasonable opportunity to bring the tram to a complete halt. The injuries claimed by the plaintiff were purely psychiatric in nature.

10 It was common ground at trial that the plaintiff's vehicle was stationary at the time of the accident, whereas the tram was moving, that the plaintiff's vehicle was on the tram tracks directly in front of the tram and that the tram was dinging its bell prior to the accident. The parties disputed where and how the accident occurred, precisely, and what injuries the plaintiff sustained as a result. It was centrally important for the jury to make a finding as to which version of the accident they preferred on the balance of probabilities. From this would logically follow their findings on liability and contributory negligence.

11 The plaintiff's case was that his vehicle remained stationary at a set of traffic lights where the pedestrian crossing is on Droop St. He was facing towards the intersection with Hopkins St/Barkly St. He never moved off from behind what was described as the 'thick white line'[5] as, on his account, the traffic lights never changed from red to green. The defendant's tram simply ran into the back of his vehicle from behind.

12 The defendant's case was that the plaintiff moved off, from behind the thick white line, on a 'green arrow' from the traffic lights. He drove into the intersection, turning into Hopkins St, but suddenly 'slammed on the brakes', for reasons that remain unclear, but possibly because he was confused by the red light that would have then been facing him, i.e. controlling the oncoming traffic from Barkley St into Hopkins St, and thought that it applied to him. The defendant's tram had followed the plaintiff's motor vehicle into the intersection and was unable to stop in time, especially because of the difficulty that trams have braking on curved tracks, and so collided with the rear of the plaintiff's vehicle.

13 As I have said, the independent witness Mr Bloomfield gave evidence at trial in support of the plaintiff's account, which was corroborated by the evidence of the plaintiff himself. However, the defendant also gave evidence, and it was open to the jury to prefer his evidence as the constitutional tribunal of fact.

14 I disagree with the plaintiff's counsel that, on all of the evidence, the jury must have accepted the evidence of Mr Bloomfield and the plaintiff as to the circumstances of the accident. Questions of credit and reliability are, according to the reasoning of the High Court in IMM v The Queen,[6] exclusively for the jury to determine. This was precisely such a case where the issues in dispute turned on the jury's acceptance, or rejection, of the evidence put before them by either party.

15 The plaintiff's application is predicated on the idea that the jury must have accepted the plaintiff's version of events, i.e. that he never moved from behind the thick white line, and so a finding of contributory negligence is precluded. However, it is equally possible that the jury preferred the evidence of the defendant, but nevertheless felt that the defendant did not maintain a reasonable distance from the plaintiff's vehicle when moving into the intersection. The jury, on this view, may have found the defendant negligent but also considered that the plaintiff was negligent in a contributory sense. Such a finding would have been well and truly open to them on the evidence led at trial.

16 In my opinion, the jury was entitled to find contributory negligence by the plaintiff, especially in light of the evidence given by the defendant. This was a classic case in which the jury were asked to decide between two competing versions of an accident. The jury preferred the evidence of the defendant. It does not matter that Mr Bloomfield's credit was not challenged (although his view of the accident, and what he could have inferred from that view, was challenged).[7] Having said that, it was put to Mr Bloomfield in cross examination that six years had passed since the accident, and that he had had no reason to recall the accident in that time. He did not prepare a statement immediately after the accident. Indeed, the first time he was required to recall the accident was a month or a few months before trial, when he was contacted by the plaintiff's solicitors.[8] It would have been reasonable for the jury, having regard to these sorts of considerations, to prefer the evidence of the defendant.

17 In any event, it was a matter for the jury having regard to the totality of the evidence, to determine where and how the accident occurred.

18 The defendant's evidence was more than sufficient to enable the jury to conclude that the plaintiff had moved off from the traffic lights and slammed on his brake once he entered the Droop St/Hopkins St intersection. I note that, in addition to the viva voce evidence of the witness, a view was conducted on the first day of the trial. The jury therefore had, as evidence before them, their impressions of the accident site, the governing traffic lights and so on.

19 I consider there was evidence for the jury to reach its conclusion in relation to contributory negligence that the plaintiff was 30 per cent liable. The application must therefore be dismissed.

[1] I will adopt the expression 'notwithstanding the jury's verdict' in place of the Latin non obstante veredicto. See, eg, Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VicRp 42; [1981] VR 421; King v Amaca Pty Ltd [2011] VSC 422.

[2] Transcript of Proceedings, Micheli v Khoushaba (Supreme Court of Victoria, Zammit J, 28 May 2019-13 June 2019) 915.4-5 ('T').

[3] [1981] VicRp 42; [1981] VR 421, 441 [35] (McGarvie J, Young CJ and Kaye J agreeing).

[4] [2011] VSC 422 [7]-[10] (citations omitted).

[5] Exhibit P1 is a series of colour photographs that show the traffic lights and the 'thick white line'.

[6] (2016) 257 CLR 300.