Grech v Spitteler (Ruling No.1)

[2024] VCC 796

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-05455

Gary Grech	Plaintiff
v
Rachael Spitteler	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2024
DATE OF REASONS:	4 June 2024
CASE MAY BE CITED AS:	Grech v Spitteler (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2024] VCC 796

RULING
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Subject:Transport Accident - Contributory negligence – application to take question of contributory negligence away from the jury

Catchwords:              Jury trial – contributory negligence – is question open for jury to consider – evidence adduced from plaintiff medical expert – question open for jury

Cases Cited:East Metropolitan Health Services v Ellis [2020] WASCA 147; EMI (Australia) Ltd v BES [1970] 2 NSWR 238; Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190; Potts v Frost [2011] TASSC 55; Seeley International Pty Ltd v Jeffrey [2013] VSCA 288; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Taylor v Scriven [2007] WASCA 208; Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; 5 Boroughs NY Pty Ltd v State of Victoria (No 2) [2022] VSC 494.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC Ms A. Smietanka	Patrick Robinson & Co
For the Defendant	Ms F. Ryan SC Ms E. Golshtein	HWL Ebsworth

HIS HONOUR:

1On the 30 May 2024, being the fourth day of the trial of this proceeding before a jury of six, the plaintiff applied for the allegation of contributory negligence pleaded by the defendant be removed as a question for consideration by the jury. After hearing brief competing oral submissions and, considering short written submissions together with a number of authorities referred to by both parties, I refused the plaintiff’s application.  So as to not delay the progress of the trial, I advised the parties that I would publish reasons at a later date.

The Relevant Facts

2The plaintiff claims damages for pain and suffering and also for pecuniary loss, as a result of the defendant’s admitted negligence in the driving of her vehicle on 20 December 2021.  The plaintiff was struck by the defendant’s car whilst riding his motorbike through a roundabout.

3The defendant’s plea in contributory negligence is expressed in its notice of defence as follows:

Failing to wear any or an any adequate protective equipment in riding his motorcycle;[1]

[1]Defence filed 6 March 2023.

4In brief comments to the jury after Mr Tobin’s opening address, in which he told the jury that the alleged want of any or adequate protective equipment had not been explained by the defendant, Ms Ryan said that the defendant intended to lead evidence that the plaintiff was not wearing protective clothing on his lower body but rather was wearing shorts and that their adoption while riding his motorbike was a departure from an appropriate standard of care for his own safety and did not amount to the use of adequate protection, with the result that their wearing by the plaintiff, contributed to his left leg and thigh injury when thrown from his motorbike onto the ground and to the degree of injury to his left leg and thigh.

5The plaintiff maintained in his evidence that he was wearing Kevlar jeans. The defendant driver testified he was wearing shorts when she saw him for the first time after the accident and he came to her window and words were exchanged.  The plaintiff was not confronted with this account of interaction when cross-examined.  The question of whether the plaintiff was wearing shorts when he was struck by the defendant’s vehicle is a matter of contested fact and, therefore, a matter for the jury. 

6To enable the jury to able to consider making a finding of contributory negligence first, it would need to be satisfied that the defendant had proved on the balance of probabilities that the plaintiff was wearing shorts.  That is a question of fact. Second, the jury would need to be satisfied that the defendant had proved that wearing shorts constituted a departure from the standard of care that the plaintiff should have exercised for his own safety while riding a motorbike on a road, with the result that the wearing of them, was capable of having contributed to the nature of the injury he sustained or the extent of it to some degree.

7Mr Tobin did not contest that if the jury is satisfied that the plaintiff was wearing shorts, to have done so may be considered by it as amounting to a lack of reasonable care for his own safety and perhaps even negligence, but that the defendant had not led any evidence that would enable the jury to move to the next inquiry, and be capable of finding that such negligence by the plaintiff contributed to his injury.

8Mr Tobin also submitted that there is no evidence on which a jury could conclude that the plaintiff’s failure to wear protective gear such as pants, could have resulted in a less severe left leg injury than he would otherwise have suffered, if he had been wearing shorts.

9Mr Tobin referred to Potts v Frost,[2] in which Porter J addressed a failure to wear a helmet and said:

The defendant needs to establish that there is a causative link between the failure to wear a helmet and a particular injury, or a particular degree of severity of injury.[3]

[2] [2011] TASSC 55.

[3]Ibid [50].

The Extent of the Medical Evidence

10Ms Manolopoulos, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors.  In her report dated 11 July 2023, she was asked, “Whether wearing alternative clothing would have had an impact on the severity of the injuries he sustained in the motor vehicle accident.”[4]  Ms Manolopoulos reported in these terms:

This is a difficult question to answer. Certainly, I note that Mr Grech had on a crush helmet and riding jacket and gloves but he did not have anything on his lower limbs other than denim jeans. I am not sure even the most protective pants would have stopped impact between a motorbike and a vehicle itself and the peg from the bike causing injury to the other thigh may not have been as serious but I think he still would have had similar issues to what Mr Grech has presented with today. I think overall there is no protective clothing that would have made the severity of Mr Grech’s injuries much less.[5]

[4]Exhibit P6, Plaintiff Court Book (“PCB”) 101.

[5]Ibid.

11It may be at once observed that the question posed to Ms Manolopoulos was predicated on the plaintiff having worn denim jeans when struck, and so, her opinion of whether there could be a qualitative difference had he been wearing other protective clothing, was not a question that specifically concerned wearing shorts.  Ms Manolopoulos was not asked about shorts by the plaintiff’s solicitors for the purpose of the provision of her report, but it is plain her answer was addressing some type of protective clothing, other than denim jeans, which she had been instructed the plaintiff wore.

12However, the following exchanges occurred in cross examination of Ms Manolopoulos by Ms Ryan:

All right. And I take it you would agree that if Mr Grech had been wearing shorts that day, shorts would have provided no protection whatsoever? ---Yes.

But if he had been wearing proper pants, riding pants, that provided thick protection with a good drag rating, that may well have provided some protection? ---Against sheer force, not impact. Drag protection is for sheer force, rubbing against – impact is a different type of force altogether, and there are very few materials that survive against impact.[6]

[6]Transcript (“T”) 83, Line (“L”) 19-28.

…

So what I'm suggesting to you, if he had been wearing proper protective pants, that his leg would not have borne the full brunt of the impact that it did in fact bear? ---Yes, but I couldn't tell you what percentage that would be.

All right. So you agree that you say you don't know what percentage that would be? ---That's right.

And what I'm suggesting to you if you agreed that it would have meant that his leg would not have borne the full brunt of the impact? ---Yes.

Then it would have, I suggest, had protected him from - it would have meant that he would have suffered, at least, reduced impact? ---Yes.

And in terms of a reduced impact, would have caused reduced injury? ---Possibly, tissues have a threshold after which a certain impact will cause bleeding. And that's why I find it difficult - found it difficult to answer that question because it's a biomechanical question that needs me to calculate how much force, how much weight and how much load per centimetre of skin was then injured, and that's why I can't tell you from whatever material is between the bike and Mr Grech whether that would have been mitigated or not.[7]

…

So, you would agree that if someone bore that impact only with shorts, that is with no protection? ---M'hmm.

They would likely suffer worse injury than with someone who bore the impact with protection of proper pants? ---That's true.

And what I'm - if that's true then you would agree on the balance of probability that that person's injury in the case of wearing full protective pants, would likely be at least somewhat less severe? ---Yes, but I'm not sure by how much, but I agree.[8]

[7]T 284, L 14-31 – T 285, L 1-4.

[8]T 285, L 19-28.

13Thus according to Ms Manolopoulos shorts would provide no protection against sheer force, but impact was a different matter, and although shorts would provide no protection against injury, the degree of increased severity of injury was uncertain.

14Ms Ryan referred to the decision by Justice Dixon in 5 Boroughs NY Pty Ltd v State of Victoria (No 2),[9] in which his Honour referred to the decision of the Western Australian Court of Appeal in East Metropolitan Health Services v Ellis[10] from which the following propositions were identified:

(a)   A court may draw an inference of causation notwithstanding that, in a particular case, expert witnesses do not express an opinion that the damage was caused by the relevant breach.[11]

(b)   An inference of causation maybe drawn without medical evidence to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible if, but only if, the materials as a whole justify an inference of probable connection.[12]

(c)   In circumstances where the aetiology is uncertain, or subject to significant scientific dispute, the courts are not thereby disabled from making decisions as to causation on the balance of probabilities.[13]

(d)   The sequence of events can be called in aid of drawing an inference which, according to expert opinion, is open.  Thus, other circumstances may ‘unite to warrant a conclusion that what the medical evidence established as a possible cause was the probable cause’.[14]

(e)   Evidence of possibility, including epidemiological studies, can be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case.  As in any circumstantial case, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility.[15]

(f)    Causation, like any other factor to be established by a process of inference, may be established by a process that combines primary facts like strands in a cable rather than links in a chain.  With respect to the former, as long as the ultimate inference is reached to the required standard, it is not necessary for an intermediate fact to be established to the legal standard.[16]

[9][2022] VSC 494, [83].

[10][2020] WASCA 147 [272]-[281] (“Ellis”), discussing the approach in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (“Seltsam”).

[11]        Seltsam (2000) 49 NSWLR 262, 286 [142]-[144].

[12] Ibid 275 [83], approving Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190.

[13]        Seltsam (2000) 49 NSWLR 262, 277 [94]; EMI (Australia) Ltd v BES [1970] 2 NSWR 238, 242.

[14]        Tubemakers of Australia v Fernandez (1976) 50 ALJR 720, 721, 725.

[15]       Seltsam (2000) 49 NSWLR 262, 841-2 [78], [79], 276 [89], 278 [98].

[16] Ibid 276 [91]. See also Seeley International Pty Ltd v Jeffrey [2013] VSCA 288, [45]-[47].

15Mr Tobin referred to Taylor v Scriven,[17] where the evidence was that a securely protected head could be less vulnerable to injury than a lesser protected head in a high velocity impact, and that the plaintiff's head injuries were of the type seen with persons wearing securely fastened helmets.  Wheeler JA (Pullin and Buss JJA agreeing) at paragraph [15] said that on the evidence, although it was possible that the plaintiff's injuries would have been reduced if the helmet had been secured, there was no evidence from which it was open to conclude that such an outcome was probable. 

[17][2007] WASCA 208, [13] – [15].

16The contested facts of this case are peculiar and different, and I think the plaintiff’s arguments risk eliding causation with culpability.  This case, so far as the allegation of contributory negligence is concerned, involves a left leg and thigh injury in which the evidence has been differently given by the plaintiff to the jury and it has included that he was wearing Kevlar lined jeans, but also there is evidence that he was wearing denim jeans but without additional strengthening protection. The defendant testified that the plaintiff was wearing shorts.  Ms Manolopoulos did not venture a written opinion about Kevlar jeans, and it is uncertain if she was aware of their tensile or protective qualities when she said she doubted any clothing would protect against the force of impact the plaintiff suffered, but this of course was a comparison she was venturing between a leg clothed at least in denim or something more protective, and was not a comparison between a clothed and unclothed lower limb or a lesser clothed lower limb and, specifically, shorts.  It was her oral evidence under cross-examination that enlivened the issue.

17In my opinion, Mr Tobin’s submissions ultimately were reduced to the contention that the defendant’s plea in contributory negligence is that “the magnitude of the plaintiff’s injury was greater by reason of what he was not wearing, and there is no evidence that the magnitude is greater.”[18]

[18]T 396, L 10-12.

18The question of whether there is evidence upon which it is open to the jury to make a finding of contributory negligence is a question for the trial judge but once contributory negligence is open on the evidence, the extent of the contribution is a question of fact for the jury.  I am not persuaded that in order to make legitimate a plea in contribution, that there must be led by a defendant, expert opinion evidence of the degree of increased risk of the severity of injury, once the likelihood that if the plaintiff was wearing shorts, the act of doing so created a real risk of a cause of injury.  Ms Ryan put to Ms Manolopoulos “you would agree on the balance of probability that that person's injury in the case of wearing full protective pants, would likely be at least somewhat less severe” to which Ms Manolopoulos answered, “Yes, but I'm not sure by how much, but I agree.”[19]  The answer to that question is predicated on them amounting to a cause of injury, although not amounting to specific evidence of the degree of severity of the same.  Although the extent of the evidence is not much, in my judgment, it is more than a layman’s guess, and is a sufficient answer to permit a consideration of the question by a properly instructed jury and not so lacking as to warrant taking the very serious step of removing the question from the jury.  It is some evidence of contribution by positing that wearing full protective pants, would likely be at least somewhat less severe, and thus can be said to have had a role to play in the injury to some extent

[19]T 285, L 24-28.

19I am satisfied that it being open to a jury to find as a matter of fact that the plaintiff was wearing shorts, then the evidentiary causation bridge has been built strong enough by the defendant to bear the weight of a consideration of some culpability by the plaintiff for the injury suffered.  That having been done, I am not persuaded that for a consideration of the question of contributory negligence to go to the jury, that they need to have been provided with evidence of a statistical estimation of comparative severity of injury by wearing shorts in order for a finding of contribution.

20What the defendant did do, and that in my judgment accords with the statement by Porter J in Potts v Frost,[20] referred to earlier, is to introduce through cross-examination, a causative link between the failure to wear protective clothing by way of the alleged wearing of shorts and injury and as well as a sufficiency of evidence if that fact is accepted by the jury, to permit it to consider contributory negligence.  Had Ms Ryan failed to elicit the evidence she did from Ms Manolopoulos, the plaintiff’s submission may perhaps more readily be regarded as falling into that type of scenario described in Taylor v Scriven at [13]-[15].[21]

[20] [2011] TASSC 55.

[21] [2007] WASCA 208.

21For the reasons stated the application is refused.