Cowan v Marine 1 Pty Ltd (Ruling No 1)

[2015] VCC 1414

IN THE COUNTY COURT OF VICTORIA
AT GEELONG
COMMON LAW DIVISION Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-12-02957

GLEN COWAN	Plaintiff
v
MARINE 1 PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	21, 22, 23, 24, 28, 29, 30 September, 1, 5, 6, 7, 8, 9 and 12 October 2015
DATE OF RULING:	15 October 2015
CASE MAY BE CITED AS:	Cowan v Marine 1 Pty Ltd (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1414

RULING
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Subject:  PRACTICE AND PROCEDURE

Catchwords:             Civil jury trial – application by plaintiff for judgment notwithstanding jury’s verdict of finding of contributory negligence (non obstante veredicto) – whether jury verdict in relation to contributory negligence should be set aside – finding that no evidence upon which a reasonable jury, properly directed, could find the plaintiff guilty of contributory negligence which was a cause of the plaintiff’s injury – application for judgment granted

Cases Cited:King v Amaca Pty Ltd [2011] VSC 422; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Naxakis v Western General Hospital (1999) 197 CLR 269; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; McLean v Tedman (1984) 155 CLR 306; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Davies v Adelaide Fertiliser Co Ltd (1946) 74 CLR 541; Sungravure Pty Ltd v Meani (1964) 110 CLR 24

Ruling:  Jury verdict of contributory negligence set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with           Mr A Macnab	Petersons
For the Defendant	Mr R Meldrum QC with Mr R Stanley	Wisewoulds Mahony

HER HONOUR:

1       The plaintiff, a marine fitter, suffered injury on 15 July 2009 during the course of his employment with the defendant whilst testing a boat on the Barwon River.  The plaintiff was undertaking a routine testing manoeuvre of a new boat when the boat hit the wash and his hands came off the wheel.  The boat then crashed into the riverbank, causing him to suffer injury.

2       Senior Counsel for the plaintiff submitted the defendant was negligent, in that it failed to train him, failed to enforce a “2 Up” policy when testing and failed to direct testing on Corio Bay.

3       Following a thirteen-day trial, on 8 October 2015, the jury returned a verdict for the plaintiff in his action for negligence against the defendant.  The jury also found the plaintiff guilty of contributory negligence, apportioning his share of responsibility for his injuries at 27.5 per cent.

4       After the jury verdict was announced, the plaintiff applied for an order that the jury’s verdict in relation to contributory negligence be set aside pursuant to leave that I reserved on 7 October 2015 non obstante veredicto at the conclusion of the evidence.

5       In his final address, Senior Counsel for the defendant summarised its case on contributory negligence as follows:

6       The plaintiff had breached his duty to himself by not holding onto the wheel, a task that was so basic that it did not require training, “in the circumstances which would include that he chose to stand and that he chose to remove the seat”.[1]

[1]Transcript “T” 862

7       This, it was said, constituted a failure by the plaintiff to take care for his safety which the defendant contended was a cause of the injury he sustained.

8       In King v Amaca Pty Ltd,[2] Kyrou J set out the legal principles in relation to applications non obstante veredicto:

(1)The defendant plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.[3]

(2)Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.[4]

(3)A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

(4)A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.

[2][2011] VSC 422

[3]Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 31; Naxakis v Western General Hospital (1999) 197 CLR 269, 274-275

[4]Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, 230

9       Senior Counsel for the defendant submitted there was a very high bar for the plaintiff to cross to succeed in this application, relying on the second principle set out by Kyrou J and also the two stage approach set out in principles one and three.[5]

[5]T1004

10      In terms of the third principle, the defendant relied on the plaintiff’s evidence that there was no debris on the river, no mechanical failure, the wash was modest and anticipated by him[6] and he could clearly see the river ahead of him.

[6]T125 Andrew Cowan

11      In response to the suggestion that he could have lost his grip because he was not holding the wheel tightly enough, the plaintiff said “it could have been”.[7] Having explained he always held the wheel the same way, the plaintiff conceded “it may have” been, on this occasion it was not tight enough.[8]

[7]T128

[8]T131

12      There were lots of reeds on the bank at the time of the incident that would have had the effect of reducing the wash.[9]

[9]T267 - Andrew Cowan; T793 - Andrew Whitford and T516 - Klaus Johnston

13      The manoeuvre of turning the wheel was one performed regularly without difficulty and had not caused other operators’ hands to be taken off the wheel.[10]

[10]T513 - Klaus Johnston; T454 - Peter Burge

14      In response, Senior Counsel for the plaintiff submitted that there was no contributory negligence on the plaintiff’s part, characterising his behaviour in his hands coming off the steering wheel as mere inadvertence[11] and a situation which occurred whilst he was following the system of work.[12]

[11]McLean v Tedman (1984)155 CLR 306 at paragraph 19; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529

[12]Davies v Adelaide Fertilizer Co Ltd (1946) 74 CLR 541

15      Further, it was submitted that as the plaintiff was following the system of work, there could be not finding of contributory negligence.  In this application, it was confirmed that in closing addresses, Senior Counsel for the defendant conceded that there was evidence of employees doing the testing in a number of ways with no direction as to a particular method to be followed.[13]

[13]T1005

16      The defendant has the onus on the balance of probabilities to establish that the plaintiff failed to take reasonable care for his own safety and that this was a cause of his injury.

17      Whilst it would be reasonable to assume the jury inferred the plaintiff lost control of the boat because it hit the wash, the plaintiff had no recollection of why he lost control.

18      The jury was entitled to conclude the plaintiff took his hands off the wheel but the question is whether, in the circumstances, that amounted to a breach of his duty to himself.  The evidence went no further than establishing the plaintiff’s hands left the wheel.

19      In these circumstances, I consider, on the evidence most favourable to the defendant, the plaintiff losing control of the wheel was mere inadvertence or that there was “inattention bred of familiarity and repetition”.[14]

[14]Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windeyer J at 37

20      If I am wrong in this regard, there is no evidence that the plaintiff removing his hands from the wheel caused the boat to hit the bank.  He is the only witness with any knowledge of the incident and does not know himself what happened.

21      In my view, there is no evidence upon which the jury properly directed could find that the plaintiff was guilty of contributory negligence which was a cause of his injury.

22      Accordingly, there will be judgment for the plaintiff in accordance with the jury’s verdict as to negligence and its verdict in relation to contributory negligence is set aside.

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