Ahrens v Queensland Railways; Butkowsky v Queensland Railways [1996] QCA 228 [1997] 2 Qd R 1

IN THE COURT OF APPEAL [1996] QCA 228 SUPREME COURT OF QUEENSLAND Brisbane Before Fitzgerald P. Pincus J.A. McPherson J.A. [Ahrens v. Queensland Railways] [Butkowsky v. Queensland Railways] Appeal No. 209 of 1995 BETWEEN: CORRIE WARREN AHRENS (Plaintiff) Appellant AND: QUEENSLAND RAILWAYS (Defendant) Respondent Appeal No. 210 of 1995 BETWEEN: ANDREW CRAIG BUTKOWSKY (Plaintiff) Appellant AND: QUEENSLAND RAILWAYS (Defendant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 12/07/1996 These appeals, which were heard together by consent, were brought from District Court -- 1 of 10 -- 2 judgments dismissing the actions of the respective appellants, which were tried together before a jury. Each appellant sued the respondent as “the occupier of certain land at the corner of Brisbane Street and Roderick Street, West Ipswich”, which “had constructed upon it the [respondent’s] railway lines”. Each plaint went on to allege that “the respondent had constructed a fence [t]o the southern side of the ... railway lines”, and that “there was a strip of land of about 3 metres width angled downwards towards the railway lines” “[b]etween the fence ... and the ... railway lines”, “after which there was a vertical drop of some 12 metres approximately to the level of the railway lines.” According to each of the appellants, on or about 29 July 1991, he “jumped over the fence ... whereupon he slid rapidly and involuntarily down the strip of land ... and then fell onto the railway lines”, as a result of which he was injured. The injuries were attributed to the respondent’s breach of duty in that it “failed to construct upon the land a fence such as to prevent entry upon the land.” It was not in dispute that the appellants were injured on the night in question by falling onto the railway lines. A police officer, Wiedman, and an ambulance officer, Bain, gave evidence that the appellants were seen “lying at the bottom of the cutting” (Wiedman) “beside the track down there” (Bain). The distance from the point where the appellants were found and Burnett Street, where it passed over the railway line after intersecting with Brisbane Street, was estimated by Wiedman to be “40, 45 metres”, and by Bain to be “[p]robably about 45 to 50 metres”. Each of Wiedman and Bain also gave some evidence relating to the place where the appellants were found to buildings to the east of Burnett Street which had frontages to Brisbane Street and backed onto the cutting through which the railway line passed. At trial, it was suggested to the jury that it could ascertain the point from which the -- 2 of 10 -- 3 appellants fell by the use of a ruler and a plan drawn to scale which showed the intersection of Brisbane Street and Burnett Street, the passage of Burnett Street over the railway cutting, and the location of at least some of the buildings referred to in Wiedman and Bain’s evidence. It is necessary to say no more of this unsatisfactory course at this point, beyond noting that the material section of Brisbane Street to the east of Burnett Street, the railway line, and the fence between the respondent’s property and the private property with a frontage to Brisbane Street are not all parallel. Each of the appellants had been drinking and, immediately prior to sustaining his injuries, was being pursued by Constable Wiedman and another police officer, Constable Simpson, who had become separated from Constable Wiedman in the course of the chase. According to Constable Simpson, the appellants crossed the fence between the respondent’s property and the private property backing onto it which had a frontage to Brisbane Street further to the east than the point at which they were found. Each of the appellants gave evidence, which was generally in accordance with the allegations in their plaint, i.e., that he jumped the fence at a point immediately above the point at which he was subsequently found by Constable Wiedman. Further, there was evidence, including photographic evidence, of the nature of the fence at that point and in the immediate vicinity. However, no attempt was made to establish whether such a fence continued further east, for example, to the point at which the appellants crossed the fence according to Constable Simpson. On his evidence, the fence was significantly higher at that point, although that probably matters little, having regard to the way in which the case was conducted. Apart from such information as it could glean from the scaling exercise which it was invited to undertake by reference to the estimates made by Wiedman and Bain of the distance -- 3 of 10 -- 4 between Burnett Street and the place where the appellants were found and/or the evidence which they gave concerning the Brisbane Street buildings which were situated above the railway line to the east of Burnett Street, the jury had no evidence to support the appellants’ evidence concerning where they crossed the fence and the nature of the fence at that point. The jury was entitled to reject the appellants’ evidence, and had contrary evidence from Constable Simpson that the appellants crossed the fence at a different point, further east, at which the fence was higher; as counsel for the appellants acknowledged despite criticism of Constable Simpson and his evidence, that evidence was not inconsistent with the evidence of Wiedman and Bain, if, for example, having crossed the fence, the appellants ran along the respondent’s land until they fell. The jury was not requested to bring in a general verdict, but asked eight separate questions, with sub-questions, in each appellant’s action. Counsel for the appellants said that the questions were settled after argument, and that he “acquiesced” in their final form, at least in the sense that he desisted from further argument. No complaint was made that the trial Judge had asked the wrong questions, or that he had done so despite argument by the appellants against the course adopted. While the appeals must be disposed of on the basis on which the trials were conducted, it is appropriate to note that the questions were unsuitable. For reasons perhaps associated with the decision in R. v. Cockerell (1879) B.C.R. Nov. 28; 7 Thorr 20 (referred to in McPherson “The Supreme Court of Queensland” at pp. 171-172), juries in civil trials in Queensland are frequently asked a series of unnecessary questions. The basis for this practice appears to be s. 259 of the Supreme Court Act 1995 (formerly s. 15 of the Judicature Act 1876). -- 4 of 10 -- 5 The effect of this provision has been considered, to some extent, in Mourani v. Jeldi Manufacturing Co. Pty. Ltd. (1983) 57 A.L.J.R. 825, and that case was discussed in Otis Elevators Pty. Ltd. v. Zitis (1986) 5 N.S.W.L.R. 171, by Priestley J.A. as well as by Kirby P. and McHugh J.A., as their Honours then were. We note that McHugh J.A. was of opinion that Mourani v. Jeldi Manufacturing Co. Pty. Ltd. decided that under the section the judge could ask only those questions the answers to which provide the basis by which the “jury’s verdict can be ascertained and its general verdict formally given”: 196D, 201G-202E. His Honour decided, in the case before him, that questions which were put to the jury by the judge amounted to “interrogating the jury as to the whole basis of its assessment of damages” (204C) and were improper; Kirby P. was it appears of a contrary opinion (185E). The decision illustrates one of the hazards of asking a jury questions of the kind put in the present litigation, viz. that they may be held to be improper, for the reason given by McHugh J.A. Although views have differed as to the desirability of obtaining a jury’s answers with respect to “subordinate questions of fact” (Otis Elevators at 183B, per Kirby P., at 197D per McHugh J.A., Bennett v. Dopke [1973] V.R. 239 at 243) as opposed to merely taking a general verdict, experience suggests that asking a jury detailed questions about their view of the facts, as was done in the present case, is undesirable. Here, it appears that the case of each plaintiff was simply that his injuries were caused by the defendant not having adequately fenced off the railway land at the point where each plaintiff entered it; as to the defendant’s liability, the jury need only have been asked whether they found for each plaintiff or for the defendant, in each case. -- 5 of 10 -- 6 It is true that where separate causes of action are in issue, there must be a separate verdict on each; this is to avoid outcomes such as that in Cutts v. Buckley (1933) 49 C.L.R. 189, where an action was brought in deceit and in contract and a single verdict was taken for the plaintiff; the verdict was set aside because the evidence did not support the contractual claim and it was impossible to tell whether or not the jury verdict was based on that ground. But it seems plain that to ask the jury such a question as is discussed below, which required them to say in effect whether they accepted particular evidence about the point of entry of each plaintiff to the railway land, was unnecessary. It is necessary, for present purposes, to refer only to the first three questions to the jury and their answers. Question 1, the relevance of which is not obvious, asked: “Was the plaintiff running from officers of the Queensland Police Service when he jumped the fence?”. The jury answered: “Yes”. Question 2 asked: “Did the plaintiff jump the fence at the place nominated in his evidence?”. The jury answered: “No”. Question 3 only required an answer if Question 2 had been answered “Yes”, but the jury nonetheless went on to answer Question 3, which was as follows: “When the plaintiff jumped the fence did he do so in circumstances in which he fully understood the risk -- 6 of 10 -- 7 of injury, and fully accepted that risk?”. The jury answered: “Yes”. If specific questions were to be asked, then the matters the subject of Question 2 on which the jury’s opinions would have been useful were whether each appellant jumped the fence and, if so, whether the fence was reasonably safe at the point at which he did so. However, as earlier stated, no complaint is made by the appellants concerning the questions in fact asked. Further, they accepted that the answers to each of Questions 2 and 3 separately required the dismissal of their appeals if either answer was not set aside, as they sought. Shortly stated, the appellants’ argument was that the negative answer to Question 2 was perverse because an affirmative answer was the only answer reasonably available to the jury on the evidence, and that such perversity on the part of the jury tainted its affirmative answer to Question 3, requiring that it also be characterised as perverse and set aside. No authority was cited in support of the latter submission, which we do not need to discuss. Nor do we propose to comment on the foundation of the appellants’ claims, namely, that the respondent breached its duty to them by failing to construct upon the land “a fence such as to prevent entry upon [its] land”. The appellants’ appeals fail at the threshold. On the evidence briefly summarised above there is no basis upon which it could be concluded that a reasonable jury, acting reasonably, must have found that each, or either, appellant jumped the fence “at the place nominated in his evidence”. -- 7 of 10 -- 8 In the circumstances, the appeals must be dismissed. The appellants must pay the respondent’s taxed costs of the appeals. -- 8 of 10 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Brisbane [Ahrens v. Queensland Railways] [Butkowsky v. Queensland Railways] Appeal No. 209 of 1995 BETWEEN: CORRIE WARREN AHRENS (Plaintiff) Appellant AND: QUEENSLAND RAILWAYS (Defendant) Respondent Appeal No. 210 of 1995 BETWEEN: ANDREW CRAIG BUTKOWSKY (Plaintiff) Appellant AND: QUEENSLAND RAILWAYS (Defendant) Respondent FITZGERALD P. PINCUS J.A. MCPHERSON J.A. Judgment delivered 12/07/1996 REASONS FOR JUDGMENT - THE COURT -- 9 of 10 -- Appeals dismissed. The appellants to pay the respondent’s taxed costs of the appeals. CATCHWORDS: PERSONAL INJURIES - jury trial - appellants sued respondent as occupier of land on which they sustained injury - alleged failure to construct a fence upon the land to prevent injury - jury asked eight specific questions with sub-questions - appellant had acquiesced in the questions’ final form - s. 259 Supreme Court Act 1995 (former s. 15 of the Judicature Act 1876) - whether certain questions put to jury were improper. R. v. Cockerell (1879) B.C.R. No. 28 Cutts v. Buckley (1933) 49 C.L.R. 189 Bennett v. Dopke [1973] V.R. 239 Mourani v. Jeldi Manufacturing Co Pty Ltd (1983) 57 A.L.J.R. 825 Otis Elevators Pty Ltd v. Zitis (1986) 5 N.S.W.L.R. 171 Counsel: J.W. Lee for the Appellants G. Gibson Q.C. with him A. Wilson for the Respondent Solicitors: Goodfellow & Scott for the Appellants Corrs Chambers Westgarth for the Respondent Date(s) of Hearing: 20 June 1996 -- 10 of 10 --