Water Board v Moustakas
180 CLR 491(Judgment by: Mason CJ, Wilson, Brennan and Dawson JJ.)
Water Board v
Moustakas
Judges:
Mason CJ, Wilson, Brennan and Dawson JJGaudron J
Judgment date: 17 February, 23 March 1988
Judgment by:
Mason CJ, Wilson, Brennan and Dawson JJ.
The respondent to this appeal, who was the plaintiff in the action and whom it is convenient to refer to as the plaintiff, was employed by the appellant, the Water Board, which was then called the Metropolitan Water Sewerage and Drainage Board. On 26 August 1977, the plaintiff was hit by a bus and injured whilst he was working in the course of his employment in Elizabeth Street, Sydney. He sued his employer, the driver of the bus, and the owner of the bus by whom the driver was employed. Proceedings against the driver of the bus were discontinued.
The matter came on for trial in June 1984 before Yeldham J, who gave judgment in favour of the remaining defendants. The plaintiff appealed to the New South Wales Court of Appeal. The appeal against the owner of the bus was dismissed by consent but the appeal proceeded against the remaining defendant, the plaintiff's employer. The appeal was allowed and the plaintiff's claim sent back for retrial. The present appeal is by the employer against the decision of the Court of Appeal. There is a cross-appeal by the plaintiff upon the ground that the Court of Appeal should not have granted a new trial but should have entered a verdict for the plaintiff.
Elizabeth Street runs north and south and at the time of the accident there were three lanes marked on the western side of the roadway for traffic travelling north. Not far south of the intersection of Elizabeth Street with Campbell Street, roadworks were being carried out by the employer on the western side of Elizabeth Street. There was an excavation in the roadway in the first lane, which was the lane nearest to the western gutter. At the southern end of the excavation, which was about two feet deep and extended across almost the whole width of the first lane, was a compressor which blocked traffic from using the first lane to the north of it. Yellow markers, known as witches' hats, were placed along the side of the area where the work was being done. They were placed on or near the line dividing the first lane from the second, or middle, lane.
Throughout the trial the plaintiff maintained that when he was injured he was working entirely in the first lane some five or six feet north of the northern end of the excavation. He said that he bent down to pick up a shovel and was hit. Thereafter, according to his evidence, he saw the bus which had hit him and it was wholly in the second lane. He said that the nearside trafficator of the bus was damaged and yellow glass from it was lying upon the roadway.
The bus driver, whose evidence the trial judge accepted, said that at all times the bus was in the second lane and at no time did it deviate into the first lane. The traffic on the morning in question was heavy and was travelling in both directions. The bus was in a line of traffic which was travelling at a low speed.
The employer called no evidence and was not called upon to address the court.
The trial judge found that the only way in which the accident could have happened was for the plaintiff to have moved out from the first into the second lane to some extent because he concluded that at no time did the bus move out of the line of traffic in which it was travelling in the second lane. He therefore found that there had been no negligence on the part of the owner of the bus.
Similarly he found that there was no negligence on the part of the employer saying: "So far as the third defendant, the employer, is concerned I am also quite unable to see how it was negligent. There was, according to the plaintiff, yellow plastic markers placed along the side of the area where the work was being done and there was also a sign on the southern side of the hole indicating that roadworks were being performed, but whether such a notation was there or not, it was broad daylight, the workmen were there plainly to be seen and I think it is quite unreal to suggest, as counsel for the plaintiff did suggest, that some type of post or other barricade should have been erected in the circumstances to have protected people such as the plaintiff working in a nearside lane. I think that to require such or other protection goes far beyond the dictates of reasonable care in the circumstances. To place yellow witches' caps, as they are called, or markers designating the area where the work was being performed was quite sufficient, indeed, it was probably more than sufficient, because the workers were there plainly to be seen and I do not consider that the third defendant, as the employer of the plaintiff, was in any way to blame for what occurred."
The point taken on behalf of the plaintiff on appeal to the Court of Appeal was that the trial judge ought to have held that the employer was negligent in not having erected a barrier of some kind in order to prevent the plaintiff from moving into the second lane and into the path of the bus. It was not suggested to the Court of Appeal that such a point was taken by the plaintiff during the trial. The plaintiff's whole case upon trial was that he remained at all times in the first lane and that the bus crossed from the second to the first lane. It was upon the basis that the trial was conducted in this way that the plaintiff's case upon appeal was presented.
As appears from the passage which we have cited from the judgment of the trial judge, what was put on behalf of the plaintiff at the trial was that the employer ought to have erected a barrier to protect the plaintiff against traffic moving from the second lane to the first, not to stop the plaintiff himself from moving from the first lane into the second. On appeal the plaintiff relied upon a particular of negligence alleging that the employer failed "to provide any or any adequate barriers so as to delineate that portion of Elizabeth Street upon which the plaintiff was working". That particular is ambiguous, but it does not appear that the plaintiff placed reliance upon it at the trial in any way other than that which we have mentioned.
Nevertheless, the Court of Appeal (Hope and Priestley JJA; McHugh JA dissenting) held that upon the facts of the case as found by the trial judge and having regard to the submission which was made at the trial on behalf of the plaintiff concerning the erection of a barricade, a case of negligence "emerged" against the employer based upon its failure to provide a barricade to prevent its employees from straying from the first into the second lane. The outcome of the appeal to this court turns upon the correctness of that view. If it were correct, the Court of Appeal may have been justified in entering judgment for the plaintiff. However, the court concluded that it would be unfair to the employer to do so "on a set of facts to which it [the employer] has never had an opportunity of presenting a defence". Had the employer been faced at the trial with the contention that it should have taken precautions to keep its employees safely within the first lane it may, so the Court of Appeal said, have conducted its case differently and more elaborately with respect to the alleged duty to erect barriers. Moreover, in the view of the Court of Appeal an issue of contributory negligence arose which would be more appropriately dealt with upon a retrial.
The course taken by the Court of Appeal immediately casts doubt upon whether it was correct in concluding that, upon the facts as found by the trial judge, the plaintiff had made out a case of negligence against his employer. The only case which he could have made out was one which he sought to put, for a trial is not at large but is of the issues joined by the parties. If the case which the Court of Appeal thought was made out was one which the plaintiff had sought to put on trial, then it may not have been unfair, as the Court of Appeal appears to have thought it would have been, for judgment to have been entered for the plaintiff on the appeal and for any question of contributory negligence to have been dealt with then and there. Any element of unfairness can only have arisen from the fact that the case against the employer which the Court of Appeal discerned, was not a case which the plaintiff sought to make at trial and was not, for that reason, a case which the employer had been required to meet. It was not a case which could be met upon appeal because the possibility of calling evidence to meet it was denied to the employer at that stage.
More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2 ) (1985) 59 ALJR 481 at 483; ; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; ; 65 ALR 656; O'Brien v Komesaroff (1982) 150 CLR 310 at 319; ; 41 ALR 255.
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged: see Dare v Pulham (1982) 148 CLR 658 ; 44 ALR 117. In Leotta v Public Transport Commission (NSW ) (1976) 50 ALJR 666 at 668; ; 9 ALR 437 at 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW ) (1978) 52 ALJR 292 ; 18 ALR 147. Jacobs J, with whom the other members of the court agreed, pointed out (ALJR at 294; ALR at 151-2) that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated.
It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal. The particular in question in this case falls into that category. The allegation that the employer failed to provide adequate barriers did not indicate the purpose for which it was contended that barriers ought to have been provided. The case presented by the plaintiff, however, made it quite clear that it was being alleged that the barriers ought to have been provided to prevent traffic from crossing into the first lane. The plaintiff could have presented his case in the alternative, upon the basis that the employer was negligent in failing to provide a barrier to prevent him from straying into the second lane. The relevant particular, because of its breadth, would have allowed such a case to be put. But it was not put. The plaintiff presented his case solely on the basis that he remained in the first lane and the imprecision of the relevant particular cannot be the means of attributing to the plaintiff a case which he did not make: cf Esso Petroleum Co Ltd v Southport Corp [1956] AC 218.
The employer was never required to meet a case that the plaintiff was hit by the bus in the second lane and it was entitled in conducting its defence to rely upon the case which was actually put. Had the plaintiff alleged in the alternative that the accident occurred in the second lane, the employer may have been compelled to address in a different way the question of its failure to erect adequate barriers, if necessary calling evidence concerning the feasibility of adopting such a measure. The point was, however, raised for the first time upon appeal and, because of the possibility that the employer may, if it had been raised below, have wished to call evidence in response to it, it ought not to have been entertained.
It is true that in Maloney (ALJR at 294; ALR at 152) it was recognised that in "very exceptional cases" a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice. Moreover, it could hardly be said that a new trial could be held now, more than 10 years after the accident, without prejudice to the defendant.
The appeal to this court should be allowed and the judgment in favour of the appellant should be restored. The cross-appeal should be dismissed.