Kenyon v Barry Bros Specialised Services Pty Ltd - [2001] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7608 of 1999

THOMAS KENYON

Appellant

BARRY BROS. SPECIALISED SERVICES PTY.LTD.

Respondent

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JUDGES:	WINNEKE, P., PHILLIPS, J.A. and CHARLES, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2001
DATE OF JUDGMENT:	9 February 2001
MEDIA NEUTRAL CITATION:	[2001] VSCA 3

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Personal injuries – Jury’s award of damages reduced by reason of contributory negligence to the extent of 85% - Whether findings of contributory negligence and apportioning perverse – Whether judge’s directions on issue sufficient – New trial limited to “liability issues” directed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A.W. Adams Q.C. with Mr. P.G. Misso	Petersons
For the Respondent	Mr. R.P. Gorton Q.C. with Ms. K.A. Galpin	Gadens, Lawyers

WINNEKE, P.:

This is an appeal by Thomas Kenyon ("the appellant") from a jury's verdict entered on 10 November 1999. The appellant had claimed damages from his employer, Barry Bros. Specialized Services Pty Ltd ("the respondent") as a consequence of an injury to his back allegedly suffered during the course of his employment on 6 December 1996 at the premises of Coca Cola in Moorabbin. The appellant was at the relevant time a casual labourer employed by the respondent under the immediate control and authority of Michael Dagg, who was also employed by the respondent. Their task was to clean out a blocked filtration tank at the Coca Cola premises. For the purposes, Dagg used suction equipment, driven by a motorised pump attached to his truck, from which a 4-inch diameter hose was led from the pump to the filtration tank which was the object of the cleaning operation. The hose was a substantial piece of equipment comprising lengths of approximately 7 metres coupled together. For the purposes of the operation at the Coca Cola premises, some 50 to 60 metres of hose was employed leading from Dagg's truck, which was parked outside the premises, to the filtration tank. The operation required the constant attention of both Dagg and the appellant. Having started the pump's motor at the truck, Dagg was located inside the filtration tank to ensure that the "product" in the tank was appropriately being fed into the suction mechanism of the hose. The appellant's job was to "work along" the length of the hose to ensure, inter alia, that the "product" was feeding appropriately along its length. In the event that a blockage occurred within the hose, it was his responsibility to "free" the blockage before the pump motor over-heated.

The evidence before the jury was that, during the course of the operation at the Coca Cola premises, the hose frequently became blocked. This was apparently due to the coarse nature of the sandy product being cleared from the tank and the length of hose through which it had to travel before reaching the receptacle on the truck. The evidence also indicated that the appellant was expected to clear these blockages by one of a number of methods in which he had…

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.

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Details

Case: [2001] VSCA 3
Decision Date: 9 February 2001

CaseChat Overview and Summary

The case of Kenyon v Barry Bros Specialised Services Pty Ltd involved a plaintiff who had suffered personal injuries as a result of the defendant's negligence. The plaintiff sought damages for the injuries sustained, which were assessed by a jury. The jury found the defendant liable and awarded damages to the plaintiff, but reduced the damages by 85% due to contributory negligence on the part of the plaintiff. The plaintiff appealed against the extent of the contributory negligence finding, arguing that the trial judge's directions to the jury on the issue of contributory negligence were insufficient and that the jury's findings were perverse. The defendant, on the other hand, argued that the trial judge's directions were adequate and that the jury's findings were not unreasonable.

The legal issues before the court included whether the trial judge had given sufficient directions to the jury on the issue of contributory negligence, whether the jury's findings on contributory negligence were perverse, and whether a new trial limited to liability issues should be directed. The court considered the extent to which the trial judge had directed the jury on the issue of contributory negligence and whether the jury's findings were open to being described as perverse. The court also considered whether a new trial limited to liability issues was an appropriate remedy in the circumstances.

The court held that the trial judge's directions to the jury on the issue of contributory negligence were sufficient and that the jury's findings were not perverse. The court found that the trial judge had given clear directions to the jury on the issue of contributory negligence and that the jury's findings were open to them based on the evidence before them. The court held that a new trial limited to liability issues was an appropriate remedy in the circumstances, as the findings on contributory negligence were not unreasonable and the plaintiff had not established that the trial judge's directions were inadequate. The court dismissed the plaintiff's appeal and directed a new trial limited to liability issues.

Orders