On appeal from the Supreme Court of New South Wales

C A Evatt with M K Rollinson for the appellant (instructed by Teakle Ormsby George)

D F Jackson QC with B Hull for the respondent (instructed by Malcolm Johns & Company)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Tort - Negligence - Common law damages for personal injury - Contributory negligence - Whether jury can find 100% contributory negligence - Whether damages for personal injury can include an amount for medical expenses without any additional amount of general damages for pain and suffering - Trial by jury - Inconsistent answers to questions - New trial ordered.

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10.

GAUDRON J. I agree with the judgment of Hayne J and with the orders which he proposes.

GUMMOW J. I agree with the reasons of Hayne J and with the orders which his Honour proposes.

KIRBY J. I agree with the reasons of Hayne J and with the orders which his Honour proposes.

HAYNE J. In 1986 the appellant, Gerrit Wynbergen, worked for The Hoyts Corporation Pty Limited ("Hoyts") at its cinema complex in George Street, Sydney. His first job, each day, was to check the toilets for damage. The toilets were cleaned by Hoyts' staff and as part of that cleaning, they mopped the tiled floors leaving them wet.

When the appellant went to inspect one of the men's toilets in the building on Friday, 20 June 1986, he says that he slipped on the wet floor and fell, injuring his right knee. According to his account, there were no signs at the entrance to the toilet warning of the wet floor and he had no reason to believe that the floor was wet. He did not stop work on that day but reported the incident to his employers. He consulted his local doctor later that day because he was experiencing pain in the knee. He did not return to work on the following Monday but went back about a week later to take up another job with Hoyts. After a time in that job, he had an operation on his right knee. He returned to work (in his original position on the maintenance staff) but in about March 1988 was dismissed for reasons not connected with the injury that he maintains he sustained in June 1986.

In February 1989, the appellant began an action for damages against Hoyts in the Common Law Division of the Supreme Court of New South Wales. He claimed that in the fall in June 1986 he had suffered a tear to the medial meniscus of the right knee which required a medial menisectomy as well as trauma to the right knee resulting in a chondromalica of the patella. He alleged that Hoyts had been negligent or had breached its statutory duties.

In June 1994, the proceeding came on for trial before a judge and jury of four. At the end of the trial (which occupied five days and saw a considerable attack on the appellant's credit) counsel for the parties agreed that questions in the following form should be given to the jury:

"1. Was the Defendant negligent in failing to provide a safe system of work?

If no, verdict for the Defendant and disregard all other questions.

2. Was the Plaintiff negligent by failing to take care of his own safety?

If yes, what is the percentage in relation to his negligence?

If no, disregard the assessment of the Plaintiff's negligence.

3. What is the assessment of damages arising out of the Defendant's negligence?

(Do not discount this amount, if you have found the Plaintiff guilty also of negligence)".

(No questions were put about breach of statutory duty because the trial judge ruled that there was no evidence to go to the jury on that count.)

No verbatim transcript is available of the jury giving its verdict but it seems that the jury answered the questions:

1. Was the defendant negligent in failing to provide a safe system of work?

2. Was the plaintiff negligent by failing to take care of his own safety?

3. What is the assessment of damages arising out of the defendant's negligence?

After some discussion with counsel, the trial judge entered judgment for the defendant, Hoyts, with costs.

The appellant appealed to the Court of Appeal. That Court dismissed the appeal. It held that the apportionment of 100% for the appellant's contributory negligence was open to the jury and was not inconsistent with the facts or the finding that Hoyts had been negligent, that the answers given by the jury were not inconsistent and that the assessment of the appellant's damages at $38 was not perverse or irrational. The appeal to the Court of Appeal having been dismissed, the judgment entered at trial for Hoyts and the order that the appellant pay Hoyts' costs each remained unaffected. The appellant now appeals to this Court.

Much, if not all, of the difficulties to which this case has given rise stem from the form of the questions which were put to the jury. Only the third question contained any reference to issues of causation for it was only that question which linked the defendant's negligence and the consequences that flowed from that negligence. The first two questions asked only whether the plaintiff or defendant was negligent and said nothing to direct the attention of the jury to whether any failure of reasonable care by the defendant for the plaintiff was a cause of the injury which the plaintiff alleged that he had sustained. At best a question framed in the way in which the first question asked of the jury in this case was framed is elliptical. It assumes that the jury will give attention to all of the factual issues which a lawyer understands to be raised by an allegation of negligence (including breach of duty and causation of damage). At worst, a question framed in this way is apt to mislead a jury into considering only whether any breach of duty on the part of the defendant has been demonstrated and thus ignoring whether that breach was causally related to the damage which it is alleged the plaintiff suffered.

No doubt the questions asked of the jury must be understood having regard to the way in which the trial was conducted and, in particular, in the light of the instructions given to them by the trial judge. Here, however, there was but the slightest passing reference by the trial judge to any question of causation. Nowhere was the jury told that the relevant enquiry is whether a breach of the duty of care which the defendant owed to the plaintiff was a cause of the plaintiff's injury. The jury were told only (and then only as an example of what is meant by common law negligence) that if an employer fails to do something which a reasonable employer would do, or omits to do something which such an employer would have done "and, if as a result of that, a foreseeable injury is suffered by the employee, then the law says that the employer is in breach of the common law duty to take reasonable care and he becomes liable to that injured employee for damages" (emphasis added). A little later in the charge, the trial judge said, in relation to questions of contributory negligence, that:

"... it is also important, if you found a degree of culpability on the part of the plaintiff, to have regard to what the causative effect is: that is, what, if any, damage has been caused by the conduct of the party."

Counsel were unable to point to any other direction given to the jury which invited their attention to questions of causation.

The jury's answer to the third question assessed the damages "arising out of the defendant's negligence". (It seems that the figure of $38 was arrived at in response to an invitation by counsel for Hoyts to allow the appellant no more than the cost of his visit to his local doctor on the day that he said he slipped at work if, contrary to the principal submission advanced on behalf of Hoyts at trial, the jury found that Hoyts was "in some way negligent and there was a fall".) Plainly, the jury's answer to this question amounted to a finding that the negligence of the defendant was a cause of the plaintiff's loss. But if the jury found, as the answer which was given to the third question indicated, that the defendant's negligence was a cause of the plaintiff's loss, it was not open to the jury to find that the plaintiff had been contributorily negligent to the extent of 100%.

The Court of Appeal considered that the tension between the two findings reflected in the answers to questions 2 and 3 could be reconciled on the basis that in apportioning responsibility between the parties, the jury were obliged to take into account not only causation but also culpability. Thus it was said that[1]:

"The jury therefore could have arrived at their apportionment of 100% for the plaintiff's contributory negligence by finding that although the defendant's negligence had been a cause of the accident the combined culpability and causative effect of the plaintiff's conduct warranted an apportionment of 100% for his contributory negligence."

The two answers given by the jury cannot be reconciled in this way.

Part 3 (ss 7-10) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) provides for the amendment of the doctrine of contributory negligence. Section 10 of that Act, so far as presently relevant, provided at the time:

"(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ...

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

(6) Where any case to which subsection (1) applies is tried -

(a) by a judge sitting without a jury the judge shall make the apportionment under subsection (1); or

(b) by a judge sitting with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced."

The term "fault" is defined in s 9 as meaning:

"negligence, or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence but does not mean or include a breach of statutory duty".

This and other apportionment legislation[2] is predicated upon a finding that a person suffers damage as the result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable[3], but that is not the only element to be considered. Regard must be had to the "relative importance of the acts of the parties in causing the damage"[4] and it is "the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination"[5] (emphasis added).

No doubt also, as the Court said in Podrebersek v Australian Iron & Steel Pty Ltd "[t]he significance of the various elements involved in such an examination will vary from case to case" and "the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance"[6]. But no matter how culpable the claimant may be, if the damage results from the fault of the person who suffers the damage and the fault of another, it is not possible to say that the damages recoverable in respect of that damage are to be not simply reduced but are to be entirely eliminated. Such an outcome cannot be justified as "just and equitable having regard to the claimant's share in the responsibility for the damage"[7] for it is an outcome which holds the claimant wholly responsible, not partly so[8].

Our attention was directed to two English cases in which there are dicta[9] suggesting that there is no principle of law which requires that there cannot be 100% contributory negligence on the part of a plaintiff. It may be open to doubt whether the statements that were made in those cases go further than saying that even if a breach of the duty of care owed by a defendant to the plaintiff is established, that breach may not, in the particular circumstances, have been a cause of the plaintiff's damage. But even if these cases do go further and do seek to countenance an apportionment of 100% responsibility to one party to the exclusion of responsibility of another party whose fault was a cause of the claimant's damage, that is a step which I consider cannot be taken. It is a step which apportionment legislation in the form under consideration here does not permit. That is not to deny the importance of considering whose fault caused or contributed to the damage; indeed it is to emphasise the importance of that examination. There may be cases in which a defendant may be shown to have failed to exercise reasonable care for the plaintiff, but the plaintiff is, in all the circumstances, judged to have been the sole author of the misfortune of which that plaintiff complains. But that is to conclude that the defendant's want of reasonable care was not a cause of the plaintiff's damage; it is to deny that the fault of both plaintiff and defendant contributed to that damage.

It was submitted on behalf of the respondent, Hoyts, that the jury's answer to question 1 recognised that in what was described as a "but for" sense the respondent's failure to display a sign warning that the floor was wet played a part in the appellant's fall while the answer to question 2 indicated that as a matter of "ordinary common sense" the "whole real cause of the accident" was his lack of care. Nothing in the wording of the two questions suggests that such a distinction should be made. Nothing in the judge's instructions to the jury and, as far as I am able to tell from the limited parts of counsel's addresses to the jury that are available in transcript, nothing in those addresses invited such reasoning on the part of the jury. Indeed, as has been noted earlier, the whole question of causation received scant attention in the judge's charge or, it seems, in counsels' addresses. Those are reasons enough to reject this contention of the respondent but it is as well to say also that the contention is one which does not accord with the Court's decision in March v Stramare (E & M H) Pty Ltd[10]. There the Court recognised that causation is essentially a question of fact to be answered by reference to common sense and experience and that the "but for" test has an important, but not decisive role to play in resolving questions of causation[11]. Indeed, as is pointed out there[12], the introduction of apportionment legislation freed the courts from what had been seen as the desirability, if not necessity, of finding a single or effective cause of the injury of which complaint was made. The respondent's contention about the construction of the jury's answers to questions 1 and 2 appears to assume that the jury were, or should have been, seeking a single or "the effective" cause of the appellant's fall.

If, then, the answers to questions 2 and 3 are inconsistent (and in my opinion they are) the judgment that was entered at trial cannot stand: for it is a judgment which, in effect, ignores the answer to the third question. Further, because the answers are inconsistent, a new trial must now be had, and it is not necessary to decide whether it was open to the jury to assess damages at $38. It is desirable to say something shortly about this question of assessment and then to say why a new trial is inevitable.

As I have already noted, much of the appellant's evidence was challenged and a considerable attack was made on his credibility. (Since the matter must go back for a new trial, it is not appropriate to go into these attacks in any detail.) Whether the appellant had slipped at work and, if he had, what consequences followed, were all matters in dispute. Presumably the jury were satisfied that the appellant had slipped and fallen and it may be that they were satisfied that he had sustained some injury. But if that were so, there seems no warrant for them not making some allowance in their assessment of damages, if only very small, for pain and suffering in addition to the out of pocket expense of $38 that the appellant incurred[13] but it is, as I say, not necessary to decide the point.

Counsel for the respondent submitted that there should be no order for retrial in this matter. He submitted that the size of the jury's assessment of damages and their attribution of 100% contributory negligence to him revealed that the jury had resolved most if not all of the questions in the trial against him and, that being so, there had not been (in the words of the relevant rule of court)[14] "some substantial wrong or miscarriage" occasioned by what took place at trial. Our attention was drawn to various cases concerning the circumstances in which an appeal court could properly decline to order a new trial[15]. But these cases were concerned with whether the amount at stake warranted a new trial and none addresses the difficulty that now arises. The jury have given inconsistent answers to questions but have then been discharged without being asked to give, or giving, a general verdict. Ordinarily the parties are taken, in the absence of express objection, to authorise the entry of such verdict as flows in law from the answers given[16]. But the answers here were inconsistent and no verdict could be identified as the verdict which flowed in law from the answers. It may be that the proper course to have adopted was for the judge to refuse to accept the answers that were offered and, having given the jury further directions, invite them to consider the questions again[17] but no such course was undertaken.

That being so, it cannot be said that there is no substantial wrong or miscarriage[18]. The jury's answers being inconsistent, it is not possible to say what judgment should have been entered. In fact, however, judgment has been entered for the defendant and because the appeal to the Court of Appeal was dismissed, that judgment stands. To leave it stand, when the jury's answers do not warrant it, would be unjust.

The present appeal should be allowed, the order of the Court of Appeal set aside and in lieu it should be ordered that the appeal to the Court of Appeal be allowed, the judgment and orders entered and made at trial set aside and a new trial be had on all issues.

Disposing of the costs of these proceedings seems, at first sight, not to be easy. The proceedings have extended over many years and now have been the subject of two appeals. Dealing with costs highlights the considerable consequences of ordering a new trial, especially in a matter in which the jury appear to have formed the view that the damages to be allowed should be very small. But there is, in my view, no reason why the costs of the appeals should not follow the event and the costs of the first trial be reserved to the judge who presides at the retrial of the action. I therefore propose orders as follows:

2. Set aside the order of the Supreme Court of New South Wales (Court of Appeal) made on 2 August 1996 and in lieu order that

(b) the judgment and orders entered and made on 8 July 1994 be set aside;

(d) costs of the first trial reserved to the judge who presides at the new trial.

[1] Gerrit Wynbergen v The Hoyts Corporation Pty Ltd, unreported, Court of Appeal of New South Wales, 2 August 1996 at 11 per Handley JA.

[2] Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10; cf Wrongs Act 1958 (Vic), s 26; Wrongs Act 1936 (SA), s 27a; Law Reform Act 1995 (Q), s 10; Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4; Tortfeasors and Contributory Negligence Act 1954 (Tas), s 4; Law Reform (Miscellaneous Provisions) Ordinance 1956 (NT), Pt 5; Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT), Pt 5.

[3] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494; [1985] HCA 34; 59 ALR 529 at 532; Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16.

[4] Podrebersek [1985] HCA 34; (1985) 59 ALJR 492 at 494; [1985] HCA 34; 59 ALR 529 at 532-533.

[5] Podrebersek [1985] HCA 34; (1985) 59 ALJR 492 at 494; [1985] HCA 34; 59 ALR 529 at 533.

[6] [1985] HCA 34; (1985) 59 ALJR 492 at 494; [1985] HCA 34; 59 ALR 529 at 533, citing Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682, Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219.

[7] Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(1).

[8] cf Pitts v Hunt [1990] EWCA Civ 17; [1991] 1 QB 24 at 48 per Beldam LJ, 51 per Balcombe LJ.

[9] Mitchell v W S Westin Ltd [1965] 1 WLR 297 at 305 per Sellers LJ, 308-309 per Pearson LJ; [1965] 1 All ER 657 at 663, 665 and Jayes v IMI (Kynoch) Ltd [1984] EWCA Civ 4; [1985] ICR 155 at 158-159 per Robert Goff LJ.

[10] [1991] HCA 12; (1991) 171 CLR 506.

[11] [1991] HCA 12; (1991) 171 CLR 506 at 515-517 per Mason CJ, 522-524 per Deane J, 524 per Toohey J.

[12] [1991] HCA 12; (1991) 171 CLR 506 at 512-514 per Mason CJ, 522 per Deane J, 531, 533 per McHugh J.

[13] cf Zelkovic v State Rail Authority unreported, Court of Appeal of New South Wales, 25 September 1995; Wilton v Commonwealth of Australia (1990) 12 MVR 243.

[14] Supreme Court Rules 1970 (NSW), Pt 51, r 16. (See now Pt 51, r 23)

[15] Hannan v Cooper [1850] Legge 634; Brenan v Russell (1862) 1 SCR (NSW) 300; Hoffnung v Simpson (1881) 2 NSWR 133; O'Connell v Whittaker (1885) 1 WN (NSW) 155; Helmore v Simons (1902) 19 WN (NSW) 25; Ex parte Jones (1906) 23 WN (NSW) 141; Killen v Robinson (1907) 24 WN (NSW) 8; Rowland v Fullagar (1911) 11 SR (NSW) 76; Cummings v Murphy [1967] VicRp 112; [1967] VR 865; Burchett v Kane [1980] 2 NSWLR 266 (n).

[16] McDonnell & East Ltd v McGregor [1936] HCA 28; (1936) 56 CLR 50 at 56 per Dixon J.

[17] See Cunningham v Ryan [1919] HCA 75; (1919) 27 CLR 294 esp at 311-313 per Isaacs J; Bradbury v NZ Loan and Mercantile Agency Co Ltd (1926) 27 SR (NSW) 15 at 18 per Street CJ; Bromley v Tonkin (1987) 11 NSWLR 211 at 235 per Clarke JA; Gibbons v Howley [1990] VicRp 66; [1990] VR 762 at 765.

[18] Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 640; Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226 at 232-233; Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 39; Bray v Ford [1896] AC 44.