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Fassbender v HW & MTA Bohlmann

Fassbender v HW & MTA Bohlmann

Case [2010] VSCA 204 20 August 2010

Negligence

Contributory Negligence

Damages

Costs

Civil Litigation & Procedure

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3741 of 2009

GARY WILLIAM FASSBENDER	Appellant
v
H W & M T A BOHLMANN (TRADING AS SEYMOUR FREIGHT LINES AND CARAVANS)
	Respondents

No 3747 of 2009

H W & M T A BOHLMANN	Applicants
v
GARY WILLIAM FASSBENDER	First Respondent
and
DIM FURNITURE (VIC) PTY LTD (TRADING AS DIM FURNITURE WHOLESALE (VIC))	Second Respondent

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JUDGES:	WARREN CJ, NETTLE JA AND EMERTON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2010
DATE OF JUDGMENT:	20 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 204

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NEGLIGENCE – trial jury - whether finding of contributory negligence open – whether apportionment of liability appropriate – findings open to reasonable jury on facts at trial.

DIRECTIONS TO JURY – whether trial judge adequately related applicable law to facts before jury – whether adequate guidance on issue of contributory negligence – whether adequate guidance on issue of relative fault – no fault in directions of trial judge.

DAMAGES – whether assessment of damages open on facts before jury – Kanja v Dynamic Engineering Construction Co Pty Ltd – finding as to damages reasonably open.

COSTS – Accident Compensation Act 1985, s 134AB(28) – not applied to third party defendant – Spotless Services Australia v Herbath – whether circumstances of case supported Sanderson order – trial costs order not disturbed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant in proceeding 3741 of 2009 and the First Respondent in proceeding 3747 of 2009	Mr V A Morfuni SC Mr J Sala	Barbante & Associates
For the Respondents in proceeding 3741 of 2009 and the Applicants in proceeding 3747 of 2009	Mr J Ruskin QC Mr S A O’Meara	Thompson Playford Cutlers Lawyers
For the Second Respondent in proceeding 3747 of 2009	Mr J R Moore QC Mr A D Clements	Moray & Agnew

WARREN CJ:
EMERTON AJA:

Facts

On 10 February 2004 the appellant, Mr Fassbender, suffered a serious back injury in the course of his employment with the respondents. Prior to the accident, the appellant had worked as a truck driver for almost 20 years. For a short time between about 1999 and 2003, he and his wife had operated a small transport business themselves. On about 20 May 2003, the appellant started working for the respondents as a driver. The respondents are Mr Henning Walter Bohlmann, known as Wally Bohlmann, and Ms Bohlmann, who run a transport and trailer manufacturing business in partnership. Their son, Mr Darren Bohlmann, also works for the business.

In his employment with the respondents the appellant drove a semi-trailer owned by them, picking up and delivering goods along the eastern seaboard. He sustained the injury to his back whilst attempting to move boxes of goods in the back of the trailer in the course of transporting them from Melbourne to Sydney for the respondents.

On 29 January 2008, the appellant commenced an action in the County Court of Victoria seeking damages against the respondents and DIM Furniture (Vic) Pty Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fassbender v HW & MTA Bohlmann

Details

AGLC: Fassbender v HW & MTA Bohlmann [2010] VSCA 204
Case: [2010] VSCA 204
Decision Date: 20 August 2010

CaseChat Overview and Summary

The case before the court involved Fassbender, the plaintiff, suing HW & MTA Bohlmann, the defendants, in relation to a claim of negligence. The matter was brought before the court following a trial by jury, which resulted in a finding of contributory negligence on the part of the plaintiff. The plaintiff appealed against the findings of contributory negligence and the apportionment of liability, arguing that the jury's findings were not reasonably open on the facts presented at trial. The defendants, in turn, argued that the trial judge had adequately directed the jury on the relevant legal principles and that the jury's findings were properly made.

The court was required to consider whether the findings of contributory negligence and the apportionment of liability were open to a reasonable jury based on the facts presented at trial. The court also had to determine whether the trial judge had adequately directed the jury on the relevant legal principles, particularly in relation to the issue of contributory negligence and the assessment of relative fault. The court further had to consider whether the assessment of damages was open on the facts before the jury and whether the trial costs order was appropriate in the circumstances of the case.

In considering the appeal, the court found that the findings of contributory negligence and the apportionment of liability were reasonably open to a reasonable jury based on the facts presented at trial. The court found that the trial judge had adequately directed the jury on the relevant legal principles, including the principles relating to contributory negligence and the assessment of relative fault. The court also found that the assessment of damages was reasonably open on the facts before the jury and that the trial costs order was appropriate in the circumstances of the case. Accordingly, the appeal was dismissed.

The court's final orders were that the appeal be dismissed, that the findings of contributory negligence and the apportionment of liability made by the jury be upheld, and that the trial costs order be affirmed. The court did not consider it appropriate to order the plaintiff to pay the costs of the defendants in relation to the appeal.

Orders