Progress & Properties Ltd v Craft

Progress & Properties Ltd v Craft - [1976] HCA 59 - HCA 1976 case summary — Zoe

[10]

I have no need to recite the facts of that case. It is sufficient to say that the Court took the view that the plaintiff and the defendant in that case were jointly engaged in a breach of s. 81(2) of the Crimes Act. The breach was the use of a motor car without the consent of its owner. The statutory punishment was a fine of not more than £100 or imprisonment for a term of not more than twelve months or both. The offence for which the section of the Crimes Act provided was in the nature of stealing but, because the conduct proscribed lacked an essential element of larceny in that there was no intention of permanently depriving the owner of his property in the subject matter, the penalty for the breach of the sub-section was to be considerably less than the penalty for larceny. The Court unanimously held that the plaintiff had no cause of action against the defendant for injuries which undoubtedly had been caused by the manner in which the defendant had controlled the motor car which both were using in contravention of the statute. The Court was not entirely unanimous in its reasons for that conclusion. The majority, it seems to me, expressed the view that a right of action in negligence was not available to the plaintiff because the plaintiff and the defendant were joint participants in the unlawful act out of which, because of the manner of the performance of that act, the injuries to the plaintiff arose. Kitto J. expressed his opinion that the plaintiff could not be allowed to recover because there was legal inseverability of the acts of the plaintiff and the defendant which amounted to a joint commission of an illegal act, and that there was no contribution or indemnity between the joint wrongdoers. His Honour stated that "persons who join in committing an illegal act which they know to be unlawful (or, which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act" [4] . Perhaps the two views were sufficiently summarized, though briefly, in my own reasons for judgment [5] . But nothing can turn, in my opinion, upon the relatively small divergence in those views when the actual decision in that case is sought to be applied in this case.

[50]

It was hardly submitted as a separate ground of appeal before this Court that the Court of Appeal was in error in refusing to allow the appellant to argue that the respondent was a trespasser on the hoist and that the duty of care was only that owed to such a trespasser. To have allowed this matter to be argued for the first time on appeal was out of the question if there was any evidence fit to be submitted to the jury either on the question whether he was a trespasser or on the question whether, if he was, there had been a breach of the duty owed to him as such. It was therefore sought to associate this ground with the ground of appeal that there was no evidence that the operator Facer in driving the goods hoist on the actual journey upon which the respondent was injured was acting within the scope of his employment. I therefore turn to the latter ground. In my opinion there was no error. Mr. Facer was the operator of the hoist and he was operating it during working hours and of necessity at the place where it was situated at the building work. For him to allow or permit the respondent to ride upon the hoist platform was in breach of reg. 139(25) and may have been contrary to specific instructions given to him by the appellant. However, a breach of these instructions would not itself necessarily take the operation of the hoist beyond the scope of Mr. Facer's employment. There was evidence that it was a common practice to permit or allow persons to ride upon this hoist platform and that the foreman himself had ridden thereon. It is not necessary to elaborate upon this evidence which fell to be considered by the jury when it answered the judge's specific question upon this subject matter as it did. The circumstances are quite distinguishable from those cases where an employee causes an injury to another at a place where he had no authority to be or where the employee was at the time when he caused the injury doing work unconnected with that which he was engaged to perform.

[63]

It appears to me that the Court of Appeal fell into error in their approach to the question whether the verdict was unreasonable. The error which I perceive is that in determining whether the verdict was unreasonable (as distinct from determining the proper amount of any substituted verdict in accordance with the agreement of the parties that they should, if necessary, do so) the Court reviewed the evidence as though it were obliged to perform the function which it has to perform when the appeal to it is by way of re-hearing from a verdict and judgment found by a trial judge sitting without a jury. It has often been stated that the trial judge sitting without a jury has a very wide discretion and the analogy has been drawn between his position and that of the jury in order to emphasize the width of the discretion which he has. Nevertheless it can be erroneous wholly to equate the verdict of a jury and the verdict of a trial judge. The Court on appeal is bound to review the evidence where the appeal is by way of re-hearing from a trial judge sitting alone. The nature of that review is the subject of considerable dissertation in the authorities but the obligation to review is not doubted. In the case of a jury's verdict the Court of Appeal has no power to review the evidence except for the purpose of determining what view on the evidence or on any particular aspect of it was reasonably open to the jury. The Court must assume that the jury took a view of the evidence most consistent with the size of the verdict which it returns. The main question in the present case for the jury was what degree of possibility the respondent had of continuing to exercise any earning capacity. The respondent was at the time of the trial and had been since twelve months after the accident employed by the appellant, not as a plumber but in the store performing such functions as answering the telephone, taking messages and making tea. Dr. Hugh Barry stated that the respondent was "completely unfit for work on the general labour market". It was very much a question for the jury whether his employment with his former employer was likely to continue, and for how long, and whether, if he lost that employment, there was any real chance of him obtaining other employment. It was open to the jury to take a very pessimistic view indeed of the respondent's future earning capacity. It has been suggested that Dr. Hugh Barry's words have to be given a limited meaning. It is true that they cannot be lifted out of their context but it was wholly a question for the jury what he meant by those words in their context. It seems to me that it was open to the jury to give them very great weight indeed. The jury could have taken the view that, apart from his current re-employment with the appellant, the respondent had no future earning capacity on the labour market. Then it was for the jury to determine in all the circumstances how long the re-employment might last. When this aspect of the matter, as well as the wide permissible area of decision open to a jury on the other heads of general damages, are taken into account, I am of the opinion that the New South Wales Court of Appeal fell into error in concluding that the amount of the jury verdict was so disproportionate to the injuries suffered that it was perverse and unreasonable and should be set aside.

At a glance

Court

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Before

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Judgment (65 paragraphs)

Parties