The path of no return – If you didn't raise it at trial, don't raise it on appeal – Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

On 7 March 2011, Nur Haq (the plaintiff) undertook part-time employment with a labour hire company, with her host employer being Australia and New Zealand Banking Group Ltd (ANZ) (the defendant). On 10 March 2011, the plaintiff, who was working as a trainee teller, had been sitting at a desk for approximately two hours. The plaintiff stood to take a break, sliding her chair back from the desk, swivelling to the left and taking a step with her right foot. When she went to take a step with her left foot, she fell to the floor as her left foot had become entangled in a series of wires under the desk.

In the District Court of New South Wales, the defendant alleged that the plaintiff ought to have been aware of the cabling as there was nothing 'untoward about the location of the wires'.² The trial judge,³ however, after hearing the oral evidence of the plaintiff, accepted that the plaintiff was not aware of the risk as she had not seen the loose wiring. Aside from the plaintiff's evidence, the only evidence relating to liability was a photograph tendered by the defendant, which had not been taken contemporaneously and did not provide any evidence in relation to the obviousness of the risk. As a result, the plaintiff was awarded $713,532 in damages, with no reduction being made for contributory negligence.

The defendant appealed on the basis that the trial judge failed to address the CLA, failed to make a reduction for contributory negligence and contended that the trial judge's assessment of damages was 'manifestly excessive'.

The New South Wales Court of Appeal (Court of Appeal) noted that throughout the trial, the defendant did not once refer to the CLA. The Court of Appeal acknowledged that in their defence, the defendant argued that the risk of injury was obvious (ss 5G and 5F of the CLA), however, those specific provisions mentioned in the defence were not raised at hearing, nor were the sections raised on appeal. The Court of Appeal specifically noted that at no time during the trail did the defendant seek a reduction under s 151Z of the Workers Compensation Act 1987 (NSW) as a result of the labour hire company's non-delegable duty of care as her employer.

The Court of Appeal found that where issues do not materialise or present themselves as issues for determination at trial, the trial judge will not be found to have erred should those issues fail to be addressed. Particularly, when both parties are represented by senior counsel, and there has been no reference at trial to the CLA, it is not an error of the trial judge if the CLA was not referred to in the judgment.⁴ Further, the Court of Appeal found that had the CLA been raised, the findings made by the trial judge would not have been different. As a result, the Court of Appeal rejected all grounds of appeal relating to liability.

In relation to contributory negligence, the defendant submitted that the trial judge should have reduced the plaintiff's damages by 50%. However, the majority disagreed, upholding the trial judge's decision that there should be no reduction for contributory negligence as the plaintiff said she did not know the wires were under the desk and had no reason to suppose they were there.

The Court of Appeal then went on to consider the defendant's appeal in relation to quantum. The Court of Appeal noted that the parties' conduct at trial could 'fairly be described as haphazard',⁵ with both parties tendering medical evidence which was not conducive to proper resolution of the issues. There was also inadequate material provided to allow a proper assessment of economic loss, with Simpson JA commenting that the evidence was in a highly unsatisfactory state. Both parties were reminded by the Court of Appeal that they should present their cases in a manner that assists the trial judge, rather than bombard the judge with hundreds of pages of irrelevant material.⁶

The Court of Appeal found that it was appropriate to recalculate the plaintiff's past economic loss, whilst acknowledging that the defendant's submissions in this regard on appeal were "not remotely based on the evidence".⁷ Further reductions were made in relation to past and future domestic assistance. The trial judge allowed ten hours per week for past domestic assistance, however, after consideration of the balance of the plaintiff's medical evidence and her daughter's oral testimony, the Court of Appeal reduced this figure to six hours per week. In relation to future domestic assistance, the Court of Appeal noted that it was necessary for the trial judge to make a finding as to the specific need for commercial assistance. The trial judge allowed two hours of commercial care per week amounting to $70,044, whilst the Court of Appeal found that the evidence did now allow a precise calculation and instead awarded a buffer of $30,000. The Court of Appeal was not conclusive as to whether that finding needed to be the result of an assessment of possibilities or an assessment of the balance of probabilities. After further reduction of plaintiff's future medical expenses, the plaintiff's total sum of damages was reduced to $582,000.

As a result of the defendant's limited success on appeal, it was found that the defendant should pay 75% of the plaintiff's costs of the appeal. Basten JA, in his judgment, concluded by stating that "given the unsatisfactory presentation of the case at trial and in this Court, one hopes that the fees charged (on both sides) will be modest".⁸

This case acts as a reminder to all firms to be adequately prepared for trial. It is the responsibility of the parties to present the issues for determination at trial, and the trial judge's responsibility to determine those issues. If an issue has not been raised at trial, it can not be argued that the trial judge failed to make a ruling in relation to that issue.

Further, when tendering evidence, it is not satisfactory to tender the entirety of what is available. Parties should direct the court to the relevant evidence, allowing the court to traverse the issues at hand with ease. Doing so will likely enable the parties to avoid criticism on appeal.

Claims managers need to be aware of the importance of obtaining evidence from occupational therapists where claims for domestic assistance are in dispute, rather than rely on the opinions of medico-legal doctors.
Resolution of the vexed question on how future commercial assistance should be determined remains unresolved with conflicting opinions of appellate judges.