Fassbender v H.W. and MTA Bohlmann and Anor (Ruling No.; 2)
[2009] VCC 2
•20 January 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-00272
| GARY WILLIAM FASSBENDER | Plaintiff |
| v | |
| H.W. & M.T.A. BOHLMANN | First Defendant |
| and | |
| DIM FURNITURE (VIC) PTY. LTD. ( Trading | Second Defendant |
| as DIM FURNITURE WHOLESALE (VIC)) |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 December 2008 |
| DATE OF RULING: | 20 January 2009 |
| CASE MAY BE CITED AS: | Fassbender v H.W. & MTA Bohlmann & Anor (Ruling No. 2) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0002 |
| REASONS FOR RULING |
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Catchwords: Civil trial – Negligence – Motion by plaintiff for judgment notwithstanding the jury verdict (non obstante veredicto) of contributory negligence by the plaintiff
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V. Morfuni S.C | Barbante & Associates |
| with Mr J. Sala | ||
| For the First Defendant | Mr C. Blanden S.C. | Dibbs Abbott Stillman |
| with Mr C. Hangay | ||
| For the Second Defendant | Mr J. Moore Q.C. | Moray & Agnew |
| with Mr A. Clements | ||
| HER HONOUR: |
1 On 21 November 2008 I reserved leave to the plaintiff (without objection from the defendants) to move for judgment notwithstanding the jury’s verdict. On 26 November 2008, the jury determined, among other things, that there was contributory negligence by the plaintiff which was a cause of his injury, loss and damage. On 18 December 2008, the plaintiff moved for judgment notwithstanding the jury’s verdict on the question of contributory negligence by the plaintiff. The first defendant opposed the plaintiff’s motion. I heard argument from both parties and reserved my decision.
2 There were two principal submissions made on behalf of the plaintiff which may be briefly summarised as follows.
(a) As the jury had to consider the question of contributory negligence of the plaintiff only after determining whether the first defendant had been negligent, the jury must have accepted the evidence of the plaintiff and Mr McQuade as to what happened at the premises of DIM Furniture, and must have accepted the evidence of the plaintiff as to what happened at Wangaratta. The jury must have found that the first defendant failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risk of injury. In this context, the question was whether in the circumstances in which the plaintiff was required to work, his conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage. The jury must also have found that the plaintiff was carrying out his duties in the manner required by his system of work, that is, assessing whether he was capable of righting the load and, if he felt he was, then going ahead and righting the load. The jury must have found that the load had shifted and the plaintiff was injured while trying to right it in accordance with the requirements of his system of work; that the plaintiff informed the first defendant of the risk involved in accepting the extra four boxes but was directed by his employer to take the extra boxes; and that the plaintiff did not have the necessary equipment to properly secure the load but secured it as best he could in the circumstances.
For if the jury had accepted that he ought not to have moved the boxes at all, it would not have been able to find negligence on the part of the first defendant. On this basis, the evidence that was accepted by the jury to found its verdict against the first defendant in negligence could not support a finding of contributory negligence by the plaintiff.
(b) The first defendant’s case as put to the jury in final address was that the plaintiff’s contributory negligence lay either in failing to ask Mr McQuade to help him move the extra boxes that had shifted in transit, or, alternatively, that after moving the first box the plaintiff should have appreciated the weight of the extra boxes and not proceeded to lift the second of those extra boxes. However, the system of work used by the first defendant required the plaintiff to work alone, and to attempt to right the load manually if it had shifted. The plaintiff complied with that system and was injured. On the authorities,[1] the plaintiff’s conduct in doing what he was required to do could not amount to contributory negligence in the circumstances. Even if the plaintiff was found to have failed to appreciate the weight of the boxes, or to have incorrectly assessed his capacity to right the boxes on his own, this would amount to mere inadvertence and did not mean he was guilty of contributory negligence.
[1] Counsel referred to the following cases: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142; Liftronic Pty Limited v Unver [2001] 179 ALR 321; Bankstown Foundry Pty Ltd v Braistina [1986] 160 CLR 301; McLean v Tedman & Brambles Holdings Ltd [1984] 155 CLR 306; Commissioner for Railways v Halley [1978] 20 ALR 409 at 415; Mannu v Ford Motor Company of Australia Pty Ltd [1962] VR 464.
3 Counsel for the first defendant took no issue with the principles expressed in the cases to the effect that an employee following a system of work cannot be found guilty of contributory negligence. He submitted, however, that it was inappropriate to speculate as to precisely what facts the jury found. As a matter of law, the jury was not bound by the final address of counsel, and was free to accept or reject parts or all of the evidence of any of the witnesses. Accordingly, the only question to be determined on the plaintiff’s application was whether there was evidence before the jury upon which they could reach the verdict that the plaintiff was guilty of contributory negligence as pleaded by the first defendant, specifically in particulars (b) – failing to take any or any reasonable care for his own safety; (d) – failing to comply with the first defendant’s system of work; (e) – failing to properly or at all tie down the load; (f) – failing to properly secure the load; and (h) – if the plaintiff required plant or equipment then failing to seek same from his superiors. It was submitted that there was ample evidence on which the jury could act which responded to these particulars, and counsel provided a list of the relevant transcript references.
4 It was submitted that there was considerable evidence, and agreement between all the relevant witnesses that it was the plaintiff’s duty to ensure that his load was loaded and secured appropriately. It was submitted that there was evidence from which the jury could conclude that the plaintiff had failed to take reasonable care for his own safety in any one of a number of ways, including that he: failed to tell the employer that he did not have any straps or ropes; did not ask the forklift drivers to reconfigure his load or unload and reload his truck to enable safe loading of the extra boxes; failed to watch and direct the loading of the extra boxes; failed to secure the extra boxes adequately or at all; failed to obtain extra straps, angles or ropes from the employer or elsewhere; failed to request assistance when shifting the extra boxes; attempted to move the extra boxes when he knew or should have known they were too heavy for him. It was submitted that it was open on the evidence for the jury to find any of these facts.
5 Further, it was submitted, there was evidence from which the jury could conclude that the plaintiff did not in fact follow the system of work, but acted contrary to it and failed to ensure that the extra boxes were tied down safely. It was submitted that any of these conclusions was open to the jury because the plaintiff was an unimpressive witness who gave a number of conflicting versions of the relevant events both in statements and in sworn answers to interrogatories; at various times at trial he professed no memory at all of certain matters and admitted to reconstruction of such matters; and prevaricated and refused to answer questions in cross-examination.
6 In relation to the tying down of the extra boxes, it was submitted that it was open to the jury to find on the evidence that he did not tie the boxes down at all. There was nothing in his original statement about not having sufficient ropes, or making a phone call to his employer. There was nothing in his answers to interrogatories about using a rope. Although he gave evidence in court about tying down the extra boxes with a rope, it was submitted that the jury did not have to accept that he had tied down the extra boxes in this way. It was submitted that it was open to the jury to proceed on the basis that the extra boxes were put on the truck and he was required to take them. It was submitted that if the jury concluded that he did not fulfil his primary responsibility to secure the load, either at all, or adequately, then it was open to them to find him guilty of contributory negligence. In such circumstances, his action in not tying the extra boxes down properly could not be regarded as mere inadvertence.
7 The principles to be applied in determining the first defendant’s application are well established.[2] A two-step process is required. First the judge must consider and determine the evidence most favourable to the party who carries the burden of proof. In this case, that means the evidence most favourable to the first defendant in respect of its allegations of contributory negligence. Secondly, the trial judge must consider and determine the question whether there was evidence upon which a reasonable jury, properly directed, could return a verdict for the first defendant.[3] The application can only succeed if “there was no evidence on which the jury could properly conclude that the plaintiff had made out his case”, although the existence of a mere scintilla of evidence is not sufficient to require a jury verdict to stand.4
8 The function of a trial judge in deciding such an application is more circumscribed than that of an appellate court. Although each case must depend on its own circumstances, a trial judge “should proceed with care and caution and only in the clearest of clear cases should a judge take away an issue or direct a verdict in favour of a party”.5
9 I accept that on the authorities the issue of contributory negligence has to be approached on the footing that the first defendant had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence by the plaintiff, the circumstances and conditions in which he had to do his work have to be taken into account. The question is whether in those circumstances and under those conditions there was evidence from which the jury could find that the plaintiff’s own conduct amounted to negligence and not to mere inadvertence, inattention or misjudgement.6
10 I turn to consider the evidence most favourable to the first defendant in respect of its allegations of contributory negligence.
11 There was evidence from the employers, the forklift drivers and the plaintiff to the effect that it was the plaintiff’s primary responsibility to ensure that the load was loaded appropriately and secured appropriately.7 Mr Henning Bohlmann said the company’s system of work was that a driver was to accept an extra load if it could fit on the truck and be safely accommodated, but that it would contravene the system of work to require a driver to carry a load that could not
63
[2] See Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 paragraph 126-7; Naxakis v Western General Hospital (1999) 197 CLR 269 at 274-5; Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221 at 230
[3] See Naxakis v Western General Hospital at 274-5; Williamson v GJ Coles & Co Ltd [1985] VR 59 at
See Naxakis at 274-5
See Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at 32 [134]
McLean v Tedman & Brambles Holdings Ltd [1984] 155 CLR 306; Podrebersek v Australian Iron & Steel Pty Ltd [1985] 59 ALR 529.
See Transcript p 92
be adequately secured. He said it was the driver’s responsibility to correct a load that had shifted “if he could”, but that a driver was not expected to move a 44 gallon drum, for example, without manual assistance. He said that if a driver said he could not secure ropes or did not have sufficient ropes, he would not approve the driver taking the load because of the risk of damage to the load and the vehicle. He said that additional ropes, straps or angles could have been provided to the plaintiff had they been requested and that if he had concerns about the security of his load after leaving DIM Furniture the plaintiff could have attended the Bohlmann business premises to get manual assistance or additional ropes or binders. Mr Darren Bohlmann also gave evidence to the effect that the driver’s obligation to right a load that had shifted was subject to “common sense – whether you can do it or not”. He said that if a pallet moved one could try and secure it better where it was, or unpack it and restack it, or use a forklift to rearrange the load.
12 There was evidence from the plaintiff as to his actions in supervising the loading of the extra boxes.[8] The plaintiff said he wasn’t having anything to do with the loading of the extra boxes and was not watching them closely;[9] he also said he washed his hands of the loading operation and took no part in the placement of the extra boxes[10]. There was evidence from the forklift drivers that if asked, they would reconfigure a load or unload and re-load a load. The plaintiff agreed that he could have asked the forklift drivers to reconfigure his entire load, but did not do so. He then said:[11]
[8] See Transcript p106
[9] See Transcript p 106
[10] See Transcript p 112
[11] See Transcript p 113
I did actually state to them that if those boxes were to be transported that we’d have to rearrange the whole load to accommodate for them and I’m not prepared to do that. This is late afternoon. I’ve been up all day. You know, I want to go home and in truck driving the biggest thing is the hours that you’ve got to try and get some sleep…..
…so I knew I was already two, three, four hours out of sleep that I could have
had had I been loaded at a reasonable time.
13 There was evidence that he was tired and irritated after waiting all day to be loaded and “spat the dummy” when the extra boxes were to be loaded. He said he would have loved to have had two angles to secure the extra boxes. He said it would not have crossed his mind to stop and buy additional straps or ropes and that this was because he was satisfied the extra boxes he secured with the rope would stay in place. He gave a number of explanations for not stopping en route after leaving DIM premises to buy further angles or straps or ropes. He said it did not occur to him to stop at Truck City because he did not like Truck City. Later he said he did not stop because he did not have any cash on him.
14 As to the alleged telephone call made by the plaintiff to his employer while at the premises of DIM Furniture on 10 February 2004, Mr Henning Bohlmann denied that he spoke to the plaintiff while the plaintiff was at the premises of DIM Furniture on that day. The plaintiff agreed that he did not make the phone call from the mobile phone provided to him by the company mobile phone but said that he must have made it using his own mobile phone or from a pay phone. When asked whether he was sure that he told Mr Bohlmann “something about not having sufficient ropes or restraining devices or straps or anything along those lines”, he said: “That’s exactly why I would have rang him, yes”. He then agreed he did not remember the phone call, or its contents[12] but knew he would have called him because that’s how he operated. He said his recollection was a reconstruction based on what he “would have done in the circumstance for sure”.
[12] See Transcript p 136
15 As to the manner in which the plaintiff secured the extra boxes, there was evidence from the plaintiff in examination in chief that he found a rope in his tool box, doubled it up on the combing rail on the passenger side, put it over the boxes, tied it, put a hitch in it and started to pull down the rope. He noticed that as he was pulling down the corner of the cardboard box it was starting to crush, so he “didn’t put a great deal of force”[13] on the rope, as he did not want to damage the goods. In cross-examination, he said that he “grabbed a rope and put the rope over the boxes”, and that this was “as good as I could do with the equipment I had” and was the “safest way at the time that I could have done it with the exception of pulling the whole load apart and putting these boxes in the middle of the trailer between the gates and starting again from fresh”. He agreed that this was an option. He agreed that he did not ask the forklift drivers to help him redistribute the load.
[13] See Transcript p 62
16 The plaintiff agreed that his statement of 22 March 2004, made some five weeks after the accident, contained no mention of any dispute about any extra load; no mention of the plaintiff not having any further straps or ropes to secure the extra load; no mention of the plaintiff’s telephone calls to either Mr Henning Bohlmann or Mr Darren Bohlmann; and no mention of noticing a bulge in the curtain of the truck. There was evidence from the plaintiff concerning his memory and how it worked. He said that the jury could rely more on his account of the circumstances of the accident given in court than on his statement of March 2004 or the information contained in Mr Cubitt’s report of September 2004.
17 As to the appropriateness of attempting to right the load without assistance, there was evidence from the plaintiff that the extra boxes were about 2 to 2.5 foot square and roughly eight feet long, and that he knew they contained furniture of some kind.[14] There was evidence from the plaintiff[15] that he rolled the first extra box that had shifted in transit before attempting to drag the second extra box forward. There was evidence from the plaintiff that generally when he had to move goods that had shifted he did not have a little lift first to test the weight but “just grabs it and moves it”. There was a concession from the plaintiff that it would be “ridiculous” for him to say that moving the first box gave him no idea how heavy that box was. He kept repeating that he had “no clear idea” of what the weight of the box would be from moving the first box[16]. There was evidence from the plaintiff that he pulled the second box towards him and that he recalled thinking at the time that it was “a little heavier than I had thought”.[17] He said that after he realised the box was heavy, he continued to pull it off.
[14] see Transcript p 60 and p 175
[15] See Transcript p 187 and p 190
[16] see Transcript p 187-189
[17] Transcript p 189
18 There was evidence from the plaintiff that it would have been possible for Mr McQuade to get into the trailer to assist him with moving the boxes if he had asked him to. There was evidence that the plaintiff did in fact call out for Mr McQuade’s assistance when he injured himself moving the second extra box. There was evidence that Mr McQuade brought the forklift around to the rear of the trailer and assisted the plaintiff to leave the trailer.
19 Having regard to the above evidence, without speculating as to precisely what facts were found by the jury, I consider that it was open to the jury to find that the plaintiff did not take reasonable care for his own safety in any one of a number of ways: failing to request the forklift drivers either to reconfigure his load or to unload and reload his truck so as to enable the extra boxes to be safely loaded; failing to watch and direct the loading of the extra boxes; failing to secure the extra boxes either at all, or adequately; commencing his journey when the extra boxes were not properly secured; failing to request from or obtain from his employer any extra straps, angles or ropes if they were needed; failing to stop at his employer’s premises to check and/or ensure the security of the extra boxes; failing to request assistance when moving the extra boxes; attempting to move the extra boxes when he knew or ought to have known they were too heavy for him. In other words, there was more than a mere scintilla of evidence upon which it was open to the jury to find that the plaintiff was guilty of contributory negligence in any one or more of the ways pleaded by the first defendant in particulars (b), (d), (e), (f), and (h) referred to in paragraph 3 of this ruling.
20 I therefore dismiss the plaintiff’s motion for judgment notwithstanding the jury verdict.
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