Drew v Clyne and Clyne (Ruling)
[2012] VCC 1551
•20 June 2012
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY (MORWELL) CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-00495
| NEIL DREW | Plaintiff |
| v | |
| ALAN CLYNE | First Defendant |
| and | |
| CHRISTINE CLYNE | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley (Morwell) | |
DATE OF HEARING: | 7, 8, 9, 10, 11, 14, 15 and 31 May 2012 | |
DATE OF RULING: | 20 June 2012 | |
CASE MAY BE CITED AS: | Drew v Clyne and Clyne (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1551 | |
RULING
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986, s93; Accident Compensation Act 1985, s134AB – contributory negligence – application by plaintiff for judgment notwithstanding jury verdict of finding of contributory negligence – the form of the judgment to be entered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendants | Mr P Scanlon QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
Introduction
1 This Ruling relates to the following matters:
(a) Setting out the reasons why I dismissed an application made by Senior Counsel for the plaintiff for judgment without reduction for contributory negligence, notwithstanding a jury verdict of a finding of contributory negligence;
(b) The appropriate form of the judgment to be entered.
The Proceeding
2 Neil Drew (“the plaintiff”) was employed as a farmhand on a large dairy farm situated at Tinamba, Gippsland, which was owned and operated by Alan Clyne and Christine Clyne (“the defendants”). On 10 October 2003, during the course of his employment with the defendants, the plaintiff was driving a registered quad motorcycle owned by him on Clynes Road, Tinamba, when buckets (or a bucket) that he was carrying over his left wrist swung over and struck his right knee, causing a fracture of the right patella and associated injuries to his right knee.
3 On that day, the plaintiff and another farm worker, Daniel Merson, drove their respective quad motorcycles up to what was referred to as the dry paddock, which was about 4 or 5 kilometres away from the main dairy farm, in order to deliver specialised food to what was referred to as the dry cows which were in a state of advanced pregnancy. The specialised food was conveyed in plastic buttocks. Merson had two buckets of the food and the plaintiff alleged also that he had two buckets although there was some issue as to whether or not he had two buckets of food or only one. After the specialised food had been distributed to the dry cows, the plaintiff and Merson were driving their quad motorcycles back to the farm when the incident occurred.
4 The plaintiff sued the defendants for damages, alleging negligence on their part consisting of, inter alia:
(a) Failing to have a suitable vehicle available for use of the plaintiff in carrying out his work;
(b) Failing to have the 4-wheel drive, which was sometimes available to the plaintiff for his use in carrying out work at the farm, available for use on the day of the incident;
(c) Requiring the plaintiff to supply his own vehicle for use in carrying out his work at the farm;
(d) Causing and/or permitting the plaintiff to use the motorcycle in transporting feed in buckets at the farm;
(e) Failing to ensure the motorcycle was safe and/or suitable to use in transporting buckets;
(f) Failing to require the motorcycle to have a means of securing buckets to it before it was used for transporting buckets;
(g) Failing to provide the plaintiff with any and/or any adequate instruction or training as to how to safely transport buckets to and from drive paddocks at the farm;
(h) Failing to have a storage area of facility for storing grain at the dry paddock of the farm;
(i) Failing to comply with the provisions of the Occupational Health & Safety Act 2004 and the regulations made thereunder;
(j) Failing to have a safe system of work;
(k) Failing to exercise due care and skill for the safety of the plaintiff in all the circumstances.
5 The defendants, although admitting employment, denied negligence and alleged contributory negligence. Although several particulars of contributory negligence were alleged in their Defence, the defendants ultimately relied on one ground – failing or neglecting to call for and wait for, the availability of adequate equipment and/or assistance. More particularly, the defendants alleged that the plaintiff was contributorily negligent by not seeking out one of the farm utilities or a trailer to transport the buckets of feed rather than transport them on the quad motorcycle.
6 It was common ground that a Triton 4-wheel drive was a farm vehicle owned by the defendants. At the time of the incident, it was also common ground that the herd manager, Mr Michael Thorn, who also had a 4-wheel drive, was on holidays for a few days.
7 The plaintiff and Daniel Merson gave evidence and were cross-examined as to why the farm vehicle was not located and used to transport the buckets of feed. The gist of the evidence from both the plaintiff and Merson, but contested by Mr Clyne, was that that utility was essentially monopolised by another farm worker, Lyndon Plant, who also performed a variety of duties around the dairy farm.
8 It was common ground between the parties that given that the quad motorcycle driven by the plaintiff was a registered motor vehicle, the proceeding was governed by s.93 of the Transport Accident Act 1986 (“the Transport Act”) subject to s.134AB(1)(a)(i) and (1)(b)(i) of the Accident Compensation Act 1985 (as amended) (“the Compensation Act”).
9 Section 134AB(1) of the Compensation Act provides, inter alia:
“(1)A worker who is … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999—
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
(i)in accordance with the Transport Accident Act 1986 and subsections (25)(b), (26) and (36)(b) of this section; or
(ii)…
(iii)…
(b)shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—
(i)in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or
(ii)… .”
10 Section 134AA states, inter alia:
“A worker who is … or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 shall not, in proceedings in respect of the injury, recover any damages in respect of pecuniary loss except—
(a)in proceedings in respect of an injury … arising out of a transport accident within the meaning of the Transport Accident Act 1986 on or after 20 October 1999—
(i)otherwise than under Part III of the Wrongs Act 1958, against the employer or any other person, subject to and in accordance with the Transport Accident Act 1986; or
(ii)…
(iii)…
(b)… .”
11 The trial of the matter proceeded as a jury over seven days from 7 May 2012. On 11 May 2012, after the completion of the evidence, but before addresses of counsel and the charge, Senior Counsel for the plaintiff was granted leave to make an application non obstante veredicto in the event that the jury found against the plaintiff in relation to contributory negligence. In a similar way, Senior Counsel for the defendants was granted leave to make application non obstante veredicto if the jury found negligence on the part of the defendants.
12 On 15 May 2012, the jury returned its verdict. The jury’s verdict was given by the following answers to the following questions:
Q1:“Was there negligence on the part of the defendants which was a cause of the plaintiff’s injury, loss and damage?---
Yes.
Q2:In what sum do you assess the plaintiff’s damages for pain and suffering?---
$250,000.
Loss of earnings:
(a) past loss - $2,085;
(b) Future loss - nil
Q3:Was there contributory negligence on the part of the plaintiff which was a cause of the plaintiff’s injury, loss and damage?---
Yes
Q4:In what proportion is it just and equitable to apportion blame between the parties?---
50/50.”
13 After the delivery of the verdict, Senior Counsel for the defendant withdrew his application in relation to the issue of negligence as so found by the jury. Senior Counsel for the plaintiff sought to pursue his application for non obstante veredicto in relation to the finding of contributory negligence by way of the jury’s answer to Question 3.
14 I entertained that application on 16 May 2012 and after hearing submissions from both parties, ruled that such application be dismissed and that I would set out my reasons at a later date.
15 After such ruling, the parties sought some time to formulate the appropriate terms of the judgment to be entered based on the jury verdict. Unfortunately, the parties could not agree on such judgment for reasons which I will set out below.
The application by counsel for the plaintiff for non obstante veredicto in relation to the verdict of the jury pertaining to the finding of contributory negligence on the part of the plaintiff
16 The appropriate legal principles to be applied in such an application are conveniently set out in a recent judgment of Beach J in Hopgood v Wodonga Regional Health Service,[1] wherein he stated:[2]
[1][2012] VSC 169
[2](ibid) at paragraph [19]
“The principles to be applied in determining an application by a defendant for judgment notwithstanding the jury’s verdict can be found in Phillips v Ellinson Brothers Pty Ltd,[3] Hayward v Georges Ltd,[4] Naxakis v Western General Hospital[5] and Herald & Weekly Times Ltd v Popovic.[6] Kyrou J helpfully summarised these principles in King v Amaca Pty Ltd. His Honour said:[7]
‘[7] In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
[8] 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.
[9] 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.
[10] 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.’”[8]
[3](1941) 65 CLR 221
[4][1966] VR 202
[5](1999) 197 CLR 269
[6](2003) 9 VR 1
[7][2011] VSC 422, and upheld on appeal in Amaca Pty Ltd v King [2011] VSCA 447 at paragraphs [7]-[10]
[8]various other footnotes omitted
17 Both Counsel accepted that the same principles are applicable in circumstances where a plaintiff applies to have a verdict of contributory negligence set aside.[9]
[9]Transcript 597, Lines 19-21
18 When queried as to whether the statement of law set out by Beach J in Hopgood v Wodonga Regional Health Service was correct, I was informed by Senior Counsel for the plaintiff that he did not say it was wrong but that it did not “elucidate sufficiently the law that your Honour needs to apply in this case”.
19 In this respect, I was referred to the High Court decision of Naxakis v Western General Hospital & Anor.[10] That matter concerned the principles to be applied in determining whether a trial judge should direct a jury to return a verdict for the defendant in a civil trial by jury. The trial judge in that matter directed a jury verdict for the defendant. On appeal to the High Court, the plaintiff was successful.
[10](1999) 197 CLR 269
20 In particular, I was referred to the judgment of McHugh J, wherein he stated:[11]
“Whether a defendant has been negligent is a question of fact, proof of which lies on the plaintiff. In a trial by jury that question is decided by the jury. But, before the trial judge can leave the question to the jury, the judge must be satisfied that the plaintiff has tendered evidence which, if believed, could induce a reasonable person to conclude that the defendant was guilty of the negligence alleged. At one stage in the development of the common law, an issue of fact would be left to the jury to determine where there was some evidence - even ‘a scintilla of evidence’ - in support of the fact. That doctrine applied to issues of negligence as well as to other issues of fact. By the middle of the last century, however, it had become settled doctrine that a ‘scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury: there must be evidence upon which they might reasonably and properly conclude that there was negligence’. So, when the defendant asks the judge to take away an issue of negligence from the jury on the ground that there is no evidence of negligence, the question is, as Willes J said in a non-negligence context, ‘not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established’.
When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.
In determining whether there is evidence upon which the jury could properly find for the plaintiff, the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence - whether directly or inferentially. … .”[12]
[11](ibid) pages 13-14
[12]various footnote references have been omitted
21 For my part, I tend to the view that Kyrou J, in his summary of the principles (as set out by Beach J), really states nothing different to that stated by McHugh J in Naxakis.
22 Senior Counsel for the plaintiff accepted that there was some evidence that there was a system of work in place at the time of the injury suffered by the plaintiff and that is made clear by various answers by the first defendant to Interrogatories delivered by the plaintiff and tendered by the plaintiff.
23 Counsel was referring to Exhibit 3, which consisted of Interrogatories numbered 17-21 of those Interrogatories delivered by the plaintiff for the examination of the first defendant and the answers thereto. I refer to Interrogatories 17 and 19 and the answers thereto, which state:
“17:If yes to either or part of Interrogatory 3 [that being that the plaintiff was employed by the defendants], during the course of his employment for the first and/or the second defendant as the case may be, did the:
(a)first defendant
(b)second defendant
provide him with any instructions or training in how to secure buckets to the motorcycles?---
A:No. Staff were instructed to use the trailer or utility vehicle to transport.
…
19:If yes to either part of interrogatory 3 and interrogatory 4 [working at a farm situated near Tinamba], during the course of his employment for the first and/or second defendant as the case may be, did the
(a)first defendant
(b)second defendant
provide him with any instruction or training in how to safely transport buckets to and from paddocks at the farm?---
A:Staff were instructed to use the trailer or utility vehicle to transport buckets.”
24 Senior Counsel for the plaintiff then submitted that although there was evidence of a system of work, there was no evidence that the plaintiff was informed or instructed in relation to the system of work.[13]
[13]Transcript 605, Lines 49 and Lines 19-23
25 Senior Counsel for the defendants submitted that there was clearly evidence and referred me to part of his cross-examination of the plaintiff,[14] wherein the following evidence was given:
[14]See Transcript 45, Lines 23 to Transcript 46, Line 1
Q:“When I hear your Senior Counsel open this case, he indicated that there was an arrangement whereby – an agreement whereby the feeding out of cattle in the dry paddock was to be done by either the ute or the trailer, remember him saying that?---
A:… Yes.
Q:Is that your instructions? That is, is that what you say is that the cattle had to be fed out – that is these cattle in the dry paddock – had to be fed by using a trailer or a ute, is that right?---
A:With the amount of cows that were up there, yes.”
26 Later he also referred to further cross-examination of the plaintiff.[15] I intend to start slightly earlier in the Transcript,[16] where the following evidence was given:
[15]Transcript 79, Lines 22-26
[16]Transcript 78, Line 30 – Transcript 79, Line 26. Also refer to Transcript 24, Lines 2-13, and Transcript 80, Lines 16-25
Q:“But in fact, as you said yesterday on the oath, you had not asked Lyndon Plant for the use of the ute on this day, had you?---
A:No, I hadn’t.
Q:And not before this day?---
A:Hadn’t needed to.
Q:No. So when it’s said to the jury that Lyndon Plant was uncooperative and was possessive of the ute, that’s not right, is it, ‘cause you hadn’t asked him for the ute beforehand, is that right?---
A:We hadn’t need to ask him because we knew.
Q:That’s not my question. You hadn’t asked him for the ute, had you?---
A:No, I had not.
Q:It was also said by your Senior Counsel, at Transcript 12, ‘So the way it was done was the way the plaintiff’ this is taking the feed, the supplement feed not the primary feed, the supplement feed, this is taking the supplement feed down to the dry cattle, who are about to give birth, right. So the way it was done was the way the plaintiff and Daniel were doing it on this occasion, on 10 October 2003, and that’s the way they’d done it on numerous other occasions prior to this date’. Right? That’s what Mr O’Dwyer told the jury. Had you taken buckets of feed down to the dry paddock on bikes before?---
A:I have not, no, I haven’t.
Q:In fact, do you understand – is the fact this. That, as Mr O’Dwyer said to the jury, the arrangement was for the ute or a tray to be used to take the buckets down?---
A:The arrangement was supposed to be like that but half the time you couldn’t.”
27 After a consideration of the competing submissions and the evidence to which I was referred to in particular, I accepted that there was evidence before the jury of a system of work and that there was also evidence before the jury that the plaintiff had knowledge of that system of work.
28 The thrust of the defendants’ case in relation to contributory negligence was that the plaintiff did not attempt to obtain a ute (or trailer) to convey the dry feed to the paddock where the buckets of feed had to be taken, in the knowledge that that was the system of work to be undertaken on the farm. Against that, the thrust of the plaintiff’s case on that issue was that it would have been a futile exercise to attempt to obtain the farm utility from Mr Lyndon Plant, who monopolised such vehicle, and furthermore, the defendants had effectively acquiesced in the use of the quad motorcycles for carrying other things around the farm.
29 In all of the circumstances, I formed the view that there was evidence upon which a reasonable jury, properly directed, could return a verdict in relation to contributory negligence on the part of the plaintiff.
30 Accordingly, as already stated, the application by Senior Counsel for the plaintiff was dismissed.
The Appropriate Form of Judgment to be Entered
31 The claim for damages by the plaintiff included past and future loss of earnings. Past loss of earnings was fixed and agreed between the parties at $23,086. I was informed by the parties (in the absence of the jury) that such amount was calculated representing periods of time that the plaintiff had been off work for surgery and the like and also taking account of s.93(10) of the Transport Act which provides that any pecuniary loss damages would not include damages in respect of any pecuniary loss suffered in the period of eighteen months after the transport accident.
32 In relation to future loss of earnings, Senior Counsel for the plaintiff in his address suggested the sum of $250,000 which was said to be fair and reasonable damages assessing the risks of future loss of earnings either as a result of the plaintiff not being able to continue his present employment of truck driving (which was more remunerative than his employment with the defendants) because of his knee injury or/and the risk of future surgery, causing the plaintiff to take time off work. Such a claim was based on the principles enunciated in Malec v JC Hutton Pty Ltd[17] and as exemplified in Caddajin Pty Ltd & Ors v Tasevski.[18]
[17](1990) 169 CLR 638 (and in particular at paragraph [7])
[18][2003] VSCA 19
33 The claim for past loss of earnings was successful, with the jury assessing such past loss to be $23,086. However, the jury gave nil damages for future loss.
34 Section 93(7)(a) of the Transport Act provides that damages for pecuniary loss cannot be recovered if the amount of pecuniary damages is less than a threshold sum. It was common ground between the parties that the sum assessed by the jury, being $23,086, was less than that sum and, accordingly, damages could not be recovered.
35 Section 134AB(25)(b) of the Compensation Act directs that any judgment entered in favour of a worker must be reduced to the extent that it is in respect of non-pecuniary loss, by the amount of compensation paid under s.98C of the Compensation Act. In the circumstances of this matter, there was no issue that the amount paid under s.98C of the Compensation Act was $11,590.
36 Furthermore, s.134AB(26) of the Compensation Act provides that the reduction of damages by the s.98C compensation be made before any reduction under s.26(1) of the Wrongs Act 1958. Accordingly, the jury verdict for pain and suffering damages of $250,000 is to be reduced by the sum of $11,590, being the s.98C amount, and then reduced by fifty per cent to allow for the contributory negligence finding on the part of the jury. Accordingly, the final sum is $119,205.
37 Given such circumstances, Senior Counsel for the plaintiff moves for judgment in the following terms:
“Judgment for the plaintiff in accordance with the jury’s verdict for pain and suffering damages of $119,240 (being fifty per cent of $250,000 and after the reduction of compensation pursuant to s.98C of the Accident Compensation Act 1985).”
38 Senior Counsel for the defendants submits that judgment should also be entered for the plaintiff for nil dollars for pecuniary loss damages.
39 I refer to s.134AB(36) of the Compensation Act, which states:
“If judgment is obtained, or a compromise or settlement made in respect of proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable—
(a)where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or
(b)where pain and suffering damages are awarded, to make payments under section 98C or 98E in respect of the injury.”
[my emphasis]
40 One of the proceedings referred to in subsection (1) is of a proceeding referred to in s.134AA for pecuniary loss and, accordingly, if judgment is obtained where pecuniary loss damages are awarded, there is no liability on the Authority or the defendants to make weekly payments in respect of the injury suffered by the plaintiff. I doubt that subsection (36) of s.134AB of the Compensation Act has application given that s.93(7) of the Transport Act makes clear that damages for pecuniary loss assessed by a jury “cannot be recovered” where such assessment is less than the threshold stipulated by that subsection.
41 I am concerned that if judgment was entered for the plaintiff, even for nil damages in relation to pecuniary loss, such judgment may well be a lever to inhibit future weekly payments of compensation pursuant to the Compensation Act (if any). Such a result would appear to be unjust, because although the plaintiff was assessed to have a past pecuniary loss, there can be no recovery of such damages because they are under the threshold. The end result is that the plaintiff recovers no damages for pecuniary loss and in such circumstances should not be cut out of any claim to future weekly payments of compensation pursuant to the Compensation Act. Of course, I cannot and do not intend to try and control the disposition of any future claim for weekly payments made by the plaintiff (if any).
42 However, I see no good reason why judgment should be entered for the plaintiff for nil dollars in relation to pecuniary loss. Furthermore, I am of the opinion that the various heads of damages merge in the judgment and I propose that judgment be entered in the following way:
“Whereas the Court recites the jury verdict as follows:
(1)Was there negligence on the part of the defendants which was a cause of the plaintiff’s injury, loss and damage?---
Yes
(2) If yes to Question 1, in what sum do you assess the plaintiff’s damages:
(a) pain and suffering - $250,000
(b) loss of earnings - $23,086
(3)Was there contributory negligence on the part of the plaintiff which was a cause of the plaintiff’s injury, loss and damage?---
Yes
(4)If yes to Question 3, in what proportion is it just and equitable to apportion blame between the parties?---
(a)Plaintiff – fifty per cent
(b)Defendants – fifty per cent.
On the movement of the plaintiff, the Court enters judgment as follows:
Judgment for the plaintiff in accordance with the jury’s verdict for pain and suffering damages of $119,205 (being the jury verdict of $250,000 less the sum of $11,590 paid pursuant to s.98C of the Accident Compensation Act and thereafter reduced by 50 per cent pursuant to s.26(1) of the Wrongs Act 1958. There be no award of damages for pecuniary loss as the jury verdict of $23,086 does not permit recovery of damages through the operation of s.93(7) of the Transport Accident Act 1986).”
43 Judgment having now been entered in the foregoing terms, the Court orders:
(1) That the defendants pay the plaintiff’s costs on an indemnity basis, with such costs to be assessed by the Costs Court in default of agreement.
(2) The Court certifies for the preparation, service and filing by the plaintiff of court books, such costs to be assessed by the Costs Court in default of agreement.
(3) There be liberty to apply reserved.
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