Del Romano v Turner
[2002] VSCA 166
•3 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 4550 of 2001
| PAUL DEL ROMANO | Appellant/Plaintiff |
| v. | |
| PHILLIP TURNER | Respondent/Defendant |
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JUDGES: | BUCHANAN, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 October 2002 | |
DATE OF JUDGMENT: | 3 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 166 | |
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Negligence - Contributory Negligence - Injury arising in course of home renovation - Unsafe system of work adopted by house owner and contractor - Whether jury's finding of 90 per cent contributory negligence perverse.
Appeal - Misdirection - Whether circumstances appropriate for appellate court to reassess apportionment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.P. Gorton Q.C. with Mr D. O'Callaghan | Ligeti Partners Lawyers |
| For the Respondent | Mr C. Gunst Q.C. with Mr J.L. Parrish | Nowicki Carbone & Co. |
BUCHANAN, J.A.:
I will ask Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
The appellant commenced this proceeding against the respondent on 19 April 1999 claiming damages in respect of injuries that he suffered as a result of an accident, to which I will refer later, that occurred during the renovations of his home on 25 June 1998.
The appellant alleged that the accident was caused by the respondent's negligence. The respondent denied negligence but claimed that, if he was negligent, the appellant was guilty of contributory negligence. After a trial before a judge and jury, on 12 January 2001 the jury found that the respondent's negligence was a cause of the appellant's injury, but they also found that there was contributory negligence on the part of the appellant to the extent of 90 per cent. Consequently the appellant's damages were reduced accordingly and, on 13 February 2001, judgment was entered for the appellant in the sum of $34,000 with accrued interest of $2,500.
Notice of Appeal
By notice of appeal dated 15 February 2001 the appellant appealed against the above judgment and orders on a number of grounds, none of which alleged that the learned judge had failed to charge the jury properly. So far as is relevant, the principal ground in the notice of appeal asserted that the jury's finding of 90 per cent contributory negligence on the part of the appellant was perverse; it was a finding, so it was claimed, against the evidence and the weight of it.
That no challenge was made in the notice of appeal to his Honour's charge was unsurprising given that very experienced and competent counsel for the appellant at the trial took no exception to the charge. It was not until approximately 25 September 2002 that the appellant alleged in the course of the appeal process that his Honour failed to direct the jury properly in respect of a number of matters. This complaint was made in the appellant's outline of submissions which bear the above date. No application for leave to amend the notice of appeal, however, was made to this Court until the commencement of the appeal when Mr Gorton, for the appellant, sought the relevant leave. The application was supported by an affidavit which exhibited, inter alia, a draft amended notice of appeal. Not surprisingly, the application was opposed by Mr Gunst for the respondent although he expressly disavowed any prejudice to his client from the late notice of the proposed amendment. We gave leave to the appellant to argue the claim that the judge's charge was deficient, reserving for later determination whether we could give leave to amend the notice of appeal.
Adoption of work system
The facts surrounding the accident may be briefly stated. At the relevant time the appellant, who is aged 37 years, was in the process of adding another story to his then single storey family house. He was not a builder by trade and although he had been involved in, inter alia, a panel beating business, he had not been gainfully employed for approximately four years before the event in question. For the purpose of his home extension he registered himself as the builder with the local council and engaged various tradesmen to do the necessary work and it was he who coordinated their activities. By 25 June 1998, the second level structure was substantially complete, including the tiled roof over it. Because the upper floor was smaller in area than the ground floor of the house, part of the original tiled roof over the ground floor remained intact. So far as is relevant, the renovations required the moving of the air-conditioning unit from the original roof to the new, second level roof. It seems that the contractor whom the appellant had engaged to do this work was unavailable and that the job was taken over by the respondent who turned up at the site at approximately 9 a.m. on 25 June 1998 to do the work.
We were told by counsel that the respondent was a large man who was approximately 6 foot 3 inches (190 cm) tall, although he was not of a particularly heavy build. He had had approximately ten years' experience, inter alia, in installing and moving air-conditioning units. He told the court below that he alone decided how a particular job was to be done and that he did not accept directions as to how it should be carried out. When the respondent arrived, those present at the premises included the appellant, a carpenter named George Onnis ("Onnis") and a plasterer, Morris Celestin ("Celestin").
The air-conditioning unit was to be moved to its new position in stages. First the respondent completed some preliminary work on the roof of the upper level to enable the dropper box, which was part of the unit, to be installed there. Next came the task of carrying the box from the ground level to the upper roof. For reasons which are presently not relevant, the item could not be taken through the manhole which was located on the second level. Hence, the respondent decided to carry the dropper box up the ladder from ground level to the second level roof. There were no ladders at the site that would reach from that distance, however, and it seems that, at the suggestion of the appellant, two ladders were put into use to enable this exercise to be undertaken[1]. One ladder extended from the ground to the tiled roof over the ground floor and the second one, placed on the tiled roof that was over the ground floor, extended to the upper level roof. Because the second ladder was placed on a slope, it had to be "footed", that is to say, a person was required to stand at its base, place a foot at the end of each strut and then hold it with his hands. Thus, the appellant footed the second ladder and the respondent thus carried the dropper box to the roof and installed it in the hole which he had earlier cut to accommodate it.
[1]It was the respondent's case before the jury that it was the appellant who told him that this system had been previously used in the renovations, but the appellant denied saying this.
The respondent then obtained assistance from a number of men to move the very heavy cooler unit of the air-conditioning equipment to the upper roof. To facilitate this, Onnis constructed a wooden scaffolding which the workers used to lift the cooler to its new location. Once that task was finished, the wooden frame was removed for fear that the holes in the roof through which the scaffolding was fixed would allow rain to enter the newly plastered downstairs area, thereby causing damage to it.
The next task was to take the motor of the air-conditioning unit, which weighed between 15 and 20 kilograms, from ground level to the upper roof. Again, the respondent planned to do this by using the two ladder system. According to Onnis, he offered to assist the respondent with his task, but the appellant told him that he would help out, and thus it was the appellant who again footed the second ladder and the respondent proceeded to climb it, carrying the motor.
The accident
Although the appellant's principal case as pleaded and as presented to the jury was that the respondent negligently dropped the motor on him, the evidence from the only two relevant witnesses did not support this claim. The respondent's evidence was that he climbed up the second ladder carrying the motor under his arm. When he got in line with the spouting, he said, he used both hands to put the motor on the roof to the right-hand side of the ladder and then held it with his right hand. According to the respondent, he then climbed two rungs of the ladder and moved his right foot or knee on to the roof almost straddling the motor. He then pushed up off the ladder with his left foot to get his weight on to the roof and at that moment, he said, the ladder commenced to move to the left. The respondent claimed that he then saw the appellant fall and at the same time the motor fell from the roof and hit him, causing him to fall on to the roof below. He claimed, however, that the motor did not hit the appellant. Importantly, the respondent did not say that he saw the appellant slip at or prior to the time when the ladder moved, although he did say that he assumed that that had occurred.
It was common ground that, at about the same time as the motor fell off the upper roof, the appellant lost his balance and fell off the roof on to that of the carport below and then to the ground where he lay unconscious with blood coming from his nose, his mouth and from a laceration on his head. The only question was, what caused him to lose his balance. It was the appellant's case that he was hit by the motor and thus lost his footing. Be that as it may, as a result of the fall the appellant suffered severe closed head injuries, including a fractured skull, which resulted in a variety of neurological impairments, as well as spinal and other musculoskeletal injuries. As a result, it was claimed by him, he developed a wide gait, sometimes used a walking stick, and he asserted that he suffered a loss of hearing necessitating the use of a hearing aid for his left ear.
Because the appellant was rendered unconscious by the accident, he was unable to remember exactly what had transpired after the respondent began to climb up the second ladder. The only person who observed the incident from the ground was Onnis who had come out of the house to speak to the appellant some ten to fifteen seconds before the accident. Onnis said that he saw the respondent climbing the ladder holding the motor in his right hand and balancing it on his shoulder. According to Onnis, when the respondent got to about shoulder height with the guttering he "swung across" with his shoulder to transfer the motor to the roof. That manoeuvre created an imbalance and the ladder "started to move". Onnis said that the motor then fell and hit the appellant causing him to lose his footing and to fall off the roof. Onnis said that he did not see the appellant move his hand or arms from the ladder before being hit by the motor.
After the accident Onnis, Celestin and the appellant's brother asked the respondent what had happened. According to Onnis, the respondent apologised and said he did not know what had happened. Celestin said that the respondent said that he had slipped and dropped the motor. The appellant's brother claimed that the respondent told him that he had "slipped and it hit him on the head". The respondent said in his evidence, however, that he told the above persons that it was the appellant who had slipped whilst holding the ladder.
Thus although there was evidence that the appellant footed the second ladder at the relevant time, there was no evidence that he slipped while performing that task or that there was any lack of care on his part in controlling the ladder. It was not possible, as Mr Gorton submitted, to draw the inference that the appellant was negligent in the way he held the ladder from the mere fact that it moved when the respondent sought to manoeuvre himself towards the roof.
It seems to me that there is no difference in substance between the versions of the two witnesses as to how relevant events occurred. On both the respondent's version and that of Onnis, the movement of the ladder coincided with the respondent's manoeuvre on the ladder towards the roof. This involved the respondent pushing himself off the ladder with his left foot with sufficient force to project his large body on to or towards the roof, while trying to hold on to the motor with his right hand. It is fairly obvious that the forces that were thereby generated downward and to some extent sideways on the ladder were likely to cause it to move to the left and thus rob or diminish the respondent's control over the motor and his own position.
For completeness I mention that a few days later the respondent returned to the site and carried the motor to the second level roof to the manhole in the ceiling and through the opening in the roof that was created above the manhole by the removal of the roof tiles.
Is verdict perverse?
At the trial, the respondent contested the appellant's claim as to the extent of his injuries, and to that end produced surveillance films to the jury to show that the appellant was a man with a range of abilities who was better able to conduct himself physically than he claimed. The plaintiff called a number of doctors but no treating doctor gave evidence.
Before us the appellant's counsel accepted that it was open to the jury to find contributory negligence but claimed that the effect of their finding that he was liable to the extent of 90 per cent for his own injuries was perverse, being against the evidence and the weight of it. The respondent on the other hand argued that the verdict was well open to the jury and stressed that the Court should follow the established principle that a jury verdict on the question of apportionment of contributory negligence should not be interfered with other than in exceptional circumstances which he said were not present here. In that context counsel referred to Butler v. Rick Cuneen Logging Pty Ltd[2] and to Podrebursek v. Australia Iron & Steel Pty Ltd[3]. More specifically, the respondent argued that it was open to the jury to reach the conclusion it did on apportionment on the basis that:
(a) it was the appellant who instigated the unsafe system;
(b)the appellant was the builder and coordinated the work of the tradesmen on the site;
(c)the appellant told the respondent that the other tradesmen had been getting up on the roof of the second level by using two ladders;
(d)when the respondent was about to push off the ladder "the ladder slipped"; and
(e)the respondent had been "footing" the ladder immediately prior to it slipping.
[2][1997] 2 V.R. 99 at 104 per Winneke, P. with whom Charles and Callaway, JJ.A. agreed.
[3](1985) 59 A.L.J.R. 492 at 494 per Gibbs, CJ, Mason, Wilson, Brennan and Deane, JJ.
In my view, however, even if one were to assume that the respondent had correctly characterised these items of evidence, such material does not rationally lead to the conclusion that the appellant was liable to the extent of 90 per cent for his injuries. For example, the mere fact that he was registered as builder and coordinated the work of the tradesmen on the site, does not bear upon his culpability in relation to the accident or on the cause of it. Similarly, the fact that the respondent had been footing the ladder immediately prior to it slipping, by itself, says nothing as to what role the footing played in causing the damage. A like position applies to the matter in (d) above. Moreover, even if it is assumed that the appellant instigated the unsafe system, that must be seen in the context of the respondent being an independently minded person who was skilled in the category of work which he performed at the appellant's premises and who decided to use the system as a convenient means by which to carry out his work. He was obviously content to go on using the system for the purpose of his work because he adopted it not only for the purpose of taking the dropper box to the upper roof, but also on approximately half a dozen other occasions before the accident. In any event, whether the jury had regard to any of the factors itemised by the respondent, and if they did, what weight they attached to them in terms of whether they were causal of the appellant's injuries, borders on speculation. Moreover, if the jury reasonably considered those factors as being relevant to the apportionment purposes, they were also likely to view them in light of other "competing" matters, such as the respondent's acquiescence in the unsafe system, his level of experience in relation to the task before him, and the manoeuvre which he undertook when near the top of the ladder.
Mr Gunst claimed that it was open to the jury to conclude that the immediate cause of the incident was the appellant's failure to hold the ladder steady at the relevant time. In my view, such a conclusion would be against the evidence which was, as I have said, that the movement in the ladder commenced with the respondent's manoeuvre described earlier, and there was no evidence to suggest that it was the appellant's failure to foot the ladder properly that caused it to move. Counsel sought to rely on the principle of res ipsa loquitur to support his contention that it must have been the appellant's negligent footing that caused the ladder to move. In my view, this principle plainly has no operation in the circumstances of this case. Mr Gunst also submitted, as I understood him, that since the respondent had climbed up and down the ladders on a number of occasions without a problem prior to the accident, on the occasion in question the ladder must not have been adequately footed by the appellant and thus moved at the critical time. In my view, this argument must also be rejected for obvious reasons.
As Winneke, P. said in Butler, the competing submissions on the question of the validity of the apportionment of damage by the jury fall to be evaluated against the finding that the respondent was in breach of his duty to the appellant and that the breach was a cause of the damage. Moreover, this evaluation must be made bearing in mind that the assessment of contributory negligence involves a comparison of two sets of circumstances. First, the culpability of each of the parties - in other words, the degree of departure of each from the standard of the reasonable person - and secondly, the relative importance of their respective acts in causing the injury - see Podrebursek and Butler. A comparison by a reasonable jury properly instructed between the culpability of the appellant and the respondent for the purpose of determining to what extent the relevant conduct of each digressed from the standard of the reasonable person and a comparison of the importance of their respective acts to see the extent to which they caused the appellant's injuries, could not sensibly produce the conclusion that the appellant was liable to the extent of 90 per cent, for his injuries.
The evidence before the jury made it plain that the respondent used a system which was inherently unsafe, if not dangerous, for lifting, inter alia, the motor to the upper floor. It was foreseeable that an accident of the kind that occurred here could take place causing injury, inter alia, to the appellant who at all relevant times was going to be below the respondent and the motor which he carried. In using the system in the way he did, the respondent breached his duty of care to the appellant as the jury must have found. But the appellant, too, failed to take reasonable care for his own safety and thus bore some contributory negligence given that he proposed the unsafe system to the respondent in the first place and took the risk of being injured by footing the ladder; he acquiesced in the use of the system for the purposes of the respondent relocating of the air-conditioning unit. Whether the appellant told the respondent that he had previously used the system in the course of his renovations is largely irrelevant, given that over the period of the morning both men, relevantly independent of one another, participated in the inherently unsafe work practice. In my view, the difference in the respective culpabilities of the appellant and the respondent and in the importance of their respective acts in causing the damage, was not so great as to enable a logical or reasonable finding that the appellant's liability for the damage should stand at 90 per cent. Properly instructed, the jury could not have come to such a decision without some irrational or irrelevant factor being taken into account in their deliberations. In my view, the apportionment is plainly wrong and should be set side. That conclusion is able to be reached more easily because there is at least one deficiency in his Honour's charge to the jury, to which I will refer later[4].
[4]See Kenyon v. Barry Bros Specialised Services Pty Ltd [2001] VSCA 3.
Amendment not pressed
Mr Gorton agreed that if the Court were to conclude that the jury's finding of contributory negligence should be set aside, there was no point to his pressing his application to amend the notice of appeal. In the circumstances, the application does not have to be considered by us.
Deficiency in charge
The next question that arises for determination is whether, upon the contributory negligence verdict being set aside, the matter should be returned to the trial court for resolution or whether this Court should fix the apportionment and make new orders accordingly. Before dealing with that issue, however, it is necessary to consider briefly Mr Gorton's attack on a number of aspects of his Honour's charge. Counsel complained that in his charge the judge effectively treated the appellant's duty to take reasonable care for his own safety as being of the same character or nature as the duty of care owed by the respondent to the appellant. It is true that it is a misdirection to tell the jury that contributory negligence involves a breach of duty of care[5]. But in my view, fairly read, his Honour had made it sufficiently plain to the jury that the appellant's relevant obligation was to take reasonable care for his own safety. On the other hand, his Honour failed to explain sufficiently that, in assessing the apportionment, the jury was required not only to compare the culpability of the parties, but also had to compare the importance of the parties' respective acts in causing the damage. See, for example, Butler[6]. Relevantly his Honour told the jury:
"How do you assess contributory negligence? While the law says that if you are of the opinion that there was contributory negligence, then you should put into balance what you see is the extent to which there has been a departure from the standard of care, the duty of care on the part of the plaintiff on the one hand and the defendant on the other, and assess them one against the other and try to come to some conclusion about the extent to which there has been a breach of the duty of care. In other words the margin by which that breach has taken place. And when put in balance try and determine which is which."
It will be noted that, although it may be said that in that passage the judge dealt adequately with the need for the jury to compare the parties' respective culpabilities, nothing was said by him about the need to compare the relative importance of the acts of the appellant and the respondent for the purpose of determining the causal link between such acts and the appellant's injuries. (It has not been suggested that such guidance is to be found in another part of the charge.) This deficiency in the charge has made it easier, as I have said, to reach the conclusion that the jury's verdict on the contributory negligence issue was without a rational basis.
[5]See Rukavina v. Incorporated Nominal Defendant [1992] 1 V.R. 677.
[6]At 103.
Should this Court determine the apportionment?
Mr Gorton submitted that if we set aside the jury's finding as to contributory negligence, the matter should be sent back to the court below for retrial. Counsel said that this Court would not be able to make the relevant assessment because it could not be said with confidence what the jury concluded in relation to the relevant facts, and more importantly, issues of credit would remain to be resolved in any fresh assessment and this could not be satisfactorily done without the Court seeing the witnesses. When pressed as to what issues of fact were in dispute and which of them depended on credit, Mr Gorton pointed first to the evidence of Onnis as to the circumstances in which the accident occurred which he said differed from that of the respondent. Secondly, counsel pointed to the evidence of Onnis as to the respondent's supposed admissions after the accident and thirdly, as to whether the appellant had told the respondent that the two ladders system had previously been used by the appellant in the course of the renovations. Mr Gunst, on the other hand, urged the Court to determine the extent of the appellant's contributory negligence and to obviate the waste of resources that would occur if the matter was sent back
for retrial. He contended, correctly, in my view, that although there were two versions of how the accident occurred, there was, in substance, little material difference between them. In my opinion, the issues of so-called credit to which Mr Gorton referred are of little, if any, relevance to the assessment of how the accident occurred and to the evaluation of the respective liabilities of the respondent and the appellant for the damage. It has not been suggested that this Court does not have power to make its own assessment of the appellant's contributory negligence. This is an unusual case in the sense that the salient facts are essentially not in dispute, are in short compass and no issues of credit need to be resolved for the purpose of making the relevant assessment. Moreover, the jury's finding of damage in the sum of $340,000 has not been relevantly challenged. Consequently this Court is in a position where it can properly reassess the extent of the appellant's contributory negligence and should do so given the circumstances of this case[7].
[7]See Calder v. Boyne Smelters Ltd [1991] 1 Qd R 325 at 349 -351 per Cooper J.
Turning now to the relevant assessment, for the reasons that I have provided, it seems to me that there is little to choose between the culpabilities of the appellant and the respondent in respect of the accident or between their respective acts that caused of the damage . In the circumstances, and taking the view of the evidence most favourable to the respondent, I would reassess the appellant's contributory negligence at 50 per cent.
Consequently, I would uphold the appeal and reassess the appellant's contributory negligence as I have indicated.
BUCHANAN, J.A.:
I agree .
EAMES, J.A.:
I also agree.
(Discussion ensued.)
BUCHANAN, J.A.:
The Court will make these orders:
That the judgment given on 13 February 2001 is set aside and in lieu there be judgment for the appellant in the sum of $170,000 together with interest agreed in the sum to be notified to the Court.
The respondent is ordered to pay the appellant's costs of the proceedings to be taxed on Scale D of the County Court Scale of Costs in default of agreement up to and including 11 January 2001 with certificates for two counsel with fee on brief for senior counsel of $5,000, and fee on mediation of $2,500 with junior counsel's fees at 50 per cent thereafter. The respondent is ordered to pay the appellant's costs of the appeal and we will grant a certificate to the respondent under the Appeal Costs Act.
(Discussion ensued.)
We will also order that the appellant pay the costs of the respondent of the trial as from 11 January 2001 to be taxed on Code D of the County Court Scale of Costs in default of agreement, including certificates for two counsel with fee on brief for senior counsel at $5,000 and 8 refreshers at two-thirds of the brief fee and junior counsel's fees fixed at 50% thereof.
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