Kiriwellage v Best & Less Pty Ltd
[2013] VSCA 355
•5 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0252 |
| PATRICIA SUE KIRIWELLAGE |
| v |
| BEST & LESS PTY LTD |
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JUDGES: | OSBORN and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 December 2013 | |
DATE OF JUDGMENT: | 5 December 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 355 | |
JUDGMENT APPEALED FROM: | [2012] VSC 620 (Macaulay J) | |
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NEGLIGENCE – Employer – Contributory negligence – Hindsight – Jury verdict – Whether contributory negligence open – Contributory negligence not open.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J P Brett with Mr J J Fitzpatrick | Arnold Thomas and Becker |
| For the Respondent | Mr M F Wheelahan SC with Ms M Norton | Thomsons Lawyers |
OSBORN JA
BEACH JA:
Introduction
Best & Less Pty Ltd, the respondent, is a clothing retailer. Patricia Sue Kiriwellage, the appellant, was an assistant store manager with the respondent. On 9 February 2007, the appellant was struck on her lower back by a bundle of metal brackets which fell from the top of a pallet the appellant was in the process of unpacking in the storeroom of the respondent’s premises in Altona.
The appellant sued the respondent for damages in respect of her injuries pursuant to s 134AB of the Accident Compensation Act 1985. On 6 December 2012, the jury returned a verdict for the appellant on the issue of negligence and assessed the appellant’s damages in the sum of $832,000. However, the jury also found that there was contributory negligence and assessed the appellant’s contributory negligence at 20%.
On 13 December 2012, judgment was entered in accordance with the jury’s verdict in the sum of $518,738.[1]
[1]This sum was calculated after an adjustment in respect of an agreed Fox v Wood component (see Fox v Wood (1981) 148 CLR 438), an agreed amount in respect of interest, and the reductions required by s 134AB(25) of the Accident Compensation Act 1985 and s 26(1) of the Wrongs Act 1958.
The appellant appeals in relation to the jury’s finding of contributory negligence. In short, the appellant contends that it was not open to the jury to find that there was any contributory negligence. The appellant’s grounds of appeal are as follows:
1. The finding of any contributory negligence on the part of [the appellant] being a cause of her injury was not open.
2. There was no breach by [the appellant] of any duty she owed to herself which could be found to be a cause of her injuries.
3. The learned trial judge was in error in rejecting the application by [the appellant] to enter judgment in favour of [the appellant] disregarding the finding of contributory negligence by the jury.
The appellant seeks an order setting aside the judgment below insofar as it relates to contributory negligence, and in lieu thereof judgment in a sum unreduced by any amount for contributory negligence.[2]
[2]Calculated in the notice of appeal to be $645,281.
The trial below
The trial commenced on 21 November 2012 and took 12 days. Prior to verdict, the appellant’s senior counsel sought to argue that there was insufficient evidence upon which the issue of contributory negligence could properly go to the jury. There was debate whether the trial judge should rule on this matter before addresses. In the end, his Honour declined to hear full argument and rule on the matter before addresses, but reserved liberty to the appellant’s counsel to make an application for judgment to be entered for the plaintiff disregarding any jury verdict of contributory negligence in the event that the jury found contributory negligence.
Following the jury’s verdict, counsel for the appellant made the application which had been foreshadowed would be made if the jury found any contributory negligence. On 13 December 2012, the trial judge dismissed the appellant’s application.[3]
[3]Kiriwellage v Best & Less Pty Ltd [2012] VSC 620 (‘Reasons’).
The only witnesses to give evidence at the trial relevant to the issue of contributory negligence were the appellant and a manager employed by the respondent to supervise several of its stores, Ms Joanne Barney. In dismissing the appellant’s application, the trial judge summarised the appellant’s evidence as follows:
Only the plaintiff was present when the injury occurred. The evidence as to how it occurred was confined to her account given in court and in an incident report and a workers compensation claim form. In summary, the evidence was that:
·Four pallets of boxes were in the store room to be unloaded; each pallet held cardboard boxes stacked above head-height, the whole load wrapped in plastic. A pallet was approximately 1.1 square metres.
·The plaintiff had begun unloading pallets at 8 am in the morning and, by around 4 pm, was working on the third pallet. She worked alone and had been instructed to unload the pallets as quickly as possible.
·Her task was to remove the boxes, take out the merchandise (clothing), load onto moveable clothing rails (sometimes called ‘trolleys’) those items that could be hung, and sort into boxes those items that could not be hung.
·She had removed the plastic wrapping from the third pallet, and had unloaded about half the pallet depth immediately before the accident (leaving, inferentially, a clear space on the pallet in front of the face of the load of approximately 600 millimetres).
·The plaintiff stood on the pallet and noticed a bundle wrapped in some plastic at about eye level on top of the boxes she was unloading, although she did not then know what was wrapped in the bundle.
·After lifting off the next box, she turned around whilst still standing on the pallet and, with her back to the load, placed the box on the floor in front of her.
·While then crouching forward preparing to unpack that box, she was struck on the back with substantial force, jerking her forward (but not causing her to fall over).
·She looked around to find, lying on the ‘floor of the pallet’, the wrapped bundle she had previously seen on top of the pallets and one of the boxes now appearing to be somewhat crushed or crumpled.
·She picked up the bundle; it felt to her like a bundle of two, three or four metal brackets of the kind used to hold up rails on the store room wall. It was not in dispute that the bundle of brackets (assuming that is what they were) should not have been on the load.
·At the time she was struck, she was standing on the pallet facing away from the load and working on the box which was on the floor, instead of standing on the floor and working on the box on the pallet. She adopted that position, so she explained, because the floor space around the pallet was too cluttered with boxes and clothes rails to do otherwise.
·She was cross examined at length as to why she adopted the position she did, rather than stand on the floor, off the pallet, and face the load. She accepted that she could have created some space to stand on the floor by moving the clothes rail onto which she was loading clothes away from the pallet, by about three feet.
·Working alone in the store room, she could not push the loaded clothes rails out into the show room because there was nobody available to unpack them and put them onto the displays, and some of the merchandise had to remain in boxes on the floor of the store room because they were of a kind which could not be hung on the rails.[4]
[4]Reasons [4].
At trial, Ms Barney gave evidence that she had never seen anyone stand on a pallet when unloading a pallet.
As was recorded by the trial judge, in his closing address to the jury, senior counsel for the respondent put the issue of contributory negligence in the following terms:
In relation to contributory negligence, if you get to that point, we say that the plaintiff should not have been standing on the pallet. It was unnecessary to stand on the pallet and she should not have crouched away from the pallet with her back to the load. And that clearly, if something happened to that load in the close confines of the pallet there would be a risk, if the load did fall, it would hit her, indeed as she said it did in this accident. She should have used her common sense, she should have followed the system that she had been following earlier in the day. She should not have stood on the pallet and turned her back to it while she unloaded that box on the floor. It was open to her, had she wished to do so, to place the box on the base of the pallet and stand where she placed the box on the floor. But it would make far more sense if she simply moved the trolley a short distance, which she could have done, and then had she done that, there would have been plenty of room for her to work on the floor. It was her failure to do that that was a major cause of this accident.
…
In that regard, the plaintiff herself agreed that she could have pushed the trolley but she chose not to do so. There it is in a nutshell; that’s why she was unnecessarily on the base of the pallet. She didn’t need to be there. Common sense would tell you that you wouldn’t turn your back to a load, let alone a load that had the plastic cut off it. That’s what she did and that’s a major contributing factor towards this accident … [5]
[5]Reasons [9].
However, in addition to making the submissions to which we have just referred, between the two paragraphs set out above, senior counsel for the respondent, in referring to Exhibit G (a diagram) said:
If you go to Exhibit G, which is the document that she drew in response to your request, you will see that the stick figure of the plaintiff, the box she was working on, the loaded pallet behind her and the portable trolley to the right of the diagram. Then the space. That’s the space where we say she could have, had she wished to do so, just pushed the trolley a few feet so she would not have needed to work on the base of the pallet.[6]
[6]T 772.17-772.25.
Contributory negligence generally
In Mayhew v Lewington’s Transport Pty Ltd,[7] this Court[8] canvassed the authorities in relation to contributory negligence in employment cases. The Court said:
[7][2010] VSCA 202.
[8]Warren CJ, Neave JA and Beach AJA.
29In personal injury in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd,[9] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:[10]
It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.[11]
30Whilst the facts of earlier cases cannot be determinative in this case of whether the appellant’s actions on the day in question amounted to contributory negligence on the one hand or some mere inadvertence, inattention or misjudgement, some previous cases are instructive. For example, in McLean v Tedman,[12] the High Court had to examine a finding that a garbage collector, who ran across a road from behind the garbage truck and who was struck by a motor vehicle travelling on its correct side of the road and which could have been observed by a person in the worker’s position before he crossed the road for a distance of approximately 200 metres, was guilty of contributory negligence. The worker sued his employer and the driver of the motor vehicle. Both defendants were found liable. Consistently with authority, the Court held that the issue of contributory negligence had to be approached on the footing that the employer had failed to discharge its obligation to take reasonable care for the worker. In that case, it was the employer’s failure to discharge its obligation to provide a safe system of work to take appropriate precautions against the risk of injury arising from the motorist’s negligence and the worker’s failure to observe an oncoming vehicle as he carried out his allotted task. Mason, Wilson, Brennan and Dawson JJ concluded that the worker’s conduct amounted to mere inadvertence, inattention or misjudgement, and there was no contributory negligence.
31In Davies v Adelaide Chemical and Fertiliser Company Limited,[13] the High Court had to consider the case of a worker whose duty it was to lubricate a machine consisting of a slowly moving conveyor belt supported by rollers. It was the worker’s practice to grease the rollers while the belt was in motion. This involved some risk, but was not highly dangerous. The worker was never instructed to have the machine stopped while he was greasing it, but it would have been stopped if he had so requested. On the day in question, the worker was reaching under the moving belt to grease a roller when his right arm became caught between the belt and the roller and he suffered injury. The worker sued his employer and established an entitlement to damages for breach of statutory duty. The case was decided at a time when contributory negligence was a complete defence. Latham CJ, Dixon and McTiernan JJ held that the evidence did not support a finding of contributory negligence that had been made below. Dixon J said:[14]
At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and longstanding practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.[15]
32In The Commissioner of Railways v Ruprecht,[16] the High Court had to consider a case involving an employee who was hit by a moving railway wagon. The employee did not look along the railway line before he stepped on it because he did not expect the wagon (which was moving quietly) and he was preoccupied with his duties. By majority, the Court concluded there was no contributory negligence. Gibbs J said:[17]
However, in deciding whether the respondent [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention borne of familiarity and repetition, and the man’s preoccupation with the matter in hand, with a view to deciding ‘whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’: Sungravure Pty Ltd v Meani (1964) 110 CLR 24, 37, per Windeyer J.
33Finally, in Czatyrko v Edith Cowan University,[18] the High Court had to consider the case of an employee who was required to load and stack boxes on the back of a truck. The truck was fitted with a mechanical lifting platform. When the employee stepped backwards from the tray of the truck to where he expected the platform to be, he fell approximately one metre to the ground and was injured. This occurred because one of the employee’s co-workers had lowered the platform without informing the employee. The Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) delivered a joint judgment in which their Honours stated that the appeal raised no question of general principle and depended on its own facts. However, in deciding the case, their Honours said:[19]
In the present case, the appellant [worker] did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping onto it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent [employer]. This it failed to do in this case. The appellant’s attempt to step onto the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgement’. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made.[20]
[9](1985) 59 ALJR 492.
[10]At 59 ALJR 493.
[11]See also McLean v Tedman (1984) 155 CLR 306 at 315 (Mason, Wilson, Brennan and Dawson JJ); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 310 (per Mason, Wilson and Dawson JJ) and Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at 843 [18] (per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).
[12](1984) 155 CLR 306.
[13](1946) 74 CLR 541.
[14]74 CLR 551.
[15]See also Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421 where the Full Court had to consider a jury’s finding of 25% contributory negligence. The Full Court (Kaye J (with whom Young CJ and McGarvie J agreed)) held there was no evidence of contributory negligence fit to go to the jury. In the course of Kaye J’s judgment, his Honour cited with approval the passage from Dixon J in Davies to which we have just referred, and stated that it was apposite to the position of Mr Prestinenzi. Whilst it has been said that judges and juries who were required to consider the issue of contributory negligence in earlier times, when contributory negligence was a complete defence, sometimes took a lenient view of what facts constituted contributory negligence (cf Joslyn v Berryman (2003) 214 CLR 522, 588 [15] (per McHugh J)), the Full Court’s decision in Prestinenzi shows that the judgment of Dixon J in Davies still has relevant application notwithstanding the fact that contributory negligence is now only a partial defence.
[16](1979) 142 CLR 563.
[17]142 CLR 568.
[18](2005) 79 ALJR 839.
[19]At 79 ALJR 839 [18].
[20]Ibid [29]-[33], citations in original.
We gratefully adopt this summary of the principal authorities. While the respondent submits that those authorities where appellate courts have set aside findings of contributory negligence are, in the main, judge alone trials where different considerations apply,[21] not all of the authorities can be so described.[22] Further, and in any event, those authorities that were appeals from judge alone trials contain the principles to be applied when considering whether there was any evidence upon which it could have been open for a jury to conclude that there was contributory negligence.
[21]See generally, Fox v Percy (2003) 214 CLR 118, 126 [25] (Gleeson CJ, Gummow and Kirby JJ).
[22]See for example, Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421 and Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202.
The resolution of this appeal
In grounds 1 and 2 of her notice of appeal, the appellant effectively contends that it was not open for the jury to make a finding of contributory negligence. The appellant so contends for two reasons. First, she says that it was not open to the jury to conclude that there was any negligence on her part. Secondly, she contends that it was not open to the jury to conclude that any negligence that might be found on her part was a cause of her injuries. In determining these arguments, we accept that the question of contributory negligence was one of fact and that this Court is required to have regard to the evidence most favourable to the respondent.[23] Having regard to that evidence, the appellant cannot succeed unless this Court concludes that no reasonable jury properly instructed could have come to the conclusion to which the jury came.[24] The relevant principle was stated in Calin v Greater Union Organisation Pty Ltd:[25]
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.
[23]Sungravure Pty Ltd v Meani (1964) 110 CLR 24, 35-7 (Windeyer J).
[24]John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1698 [185] (Callinan J, with whom Gleeson CJ (at 1658 [1]) and Heydon J (at 1703 [219]) agreed).
[25](1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ).
Ground 3 is, in the circumstances of this case, otiose. The issue that falls to be determined is whether or not it was open to the jury to make the finding of contributory negligence it made. If it was, then the trial judge was correct to reject the non obstante application. However, if it was not open to the jury to find contributory negligence then that part of the verdict must be set aside irrespective of the conclusion to which the trial judge came. That said, we should say that a conclusion by this Court that it was not open to the jury to find contributory negligence on the part of the appellant does not bespeak error on the part of the trial judge when he rejected the non obstante application. As his Honour correctly said, a trial judge should proceed with great caution and should only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.
In the respondent’s written outline of submissions, the respondent contends that the factual elements of its contributory negligence case were that:
(a) the appellant was crouched on the loaded pallet in close proximity to the boxes on the pallet;
(b) the appellant had her back to the boxes on the pallet so that she could not see them;
(c) it was feasible for the appellant to make working space away from the pallet by moving a trolley a short distance and she should have unpacked the boxes on the floor;
(d) alternatively, the appellant could have placed the box on the pallet and stood on the floor;
(e) there was a foreseeable risk that if the load on the pallet did fall, that it would hit the appellant; and
(g) ‘common sense’ required that the appellant should not have turned her back on the load once the plastic securing the boxes on the pallet had been cut off.[26]
[26]Paragraph 5 of the respondent’s outline of submissions dated 6 August 2013.
In support of these ‘factual elements’, the respondent relied upon various pieces of evidence given by the appellant and Ms Barney, including:
(a) on the day of the incident the appellant had control as to how and the sequence in which boxes were unloaded from the pallets;
(b) if a box was at a convenient level on the pallet, the appellant would open the box on the pallet, but otherwise placed the boxes on the floor;
(c) at the time of the accident, the distance between the back part of the appellant closest to the boxes on the pallet was very short;
(d) the appellant accepted that if she had been facing the load she would have been able to see any problem developing;
(e) the appellant could have removed the bundle of metal brackets from the box it was resting on if she had chosen to; and
(f) the appellant could have moved the portable trolley to a space closer to the shop door, thereby creating space for her to stand on the floor as she opened the box upon which she was working.[27]
[27]See further, paragraphs [6]-[8] of the respondent’s outline of submissions dated 6 August 2013.
However, a fundamental lacuna in the respondent’s contributory negligence case is the lack of any evidence that the appellant knew or ought to have known that she was at any risk of injury from performing her work in the area she was working and with her back to a pallet. Further, it is to be remembered that, in addition to approaching the question of contributory negligence on the footing that the respondent had in fact failed to discharge its obligations to take reasonable care for the appellant, the uncontested evidence was that the appellant was performing this work for some considerable time, and under pressure of time, before the accident occurred.
The real problem with the respondent’s contributory negligence case is that, however one analyses it, it depends heavily upon hindsight. In Roads and Traffic Authority of New South Wales v Dederer,[28] Gummow J identified a number of relevant principles in relation to the issue of breach of a duty of care in negligence proceedings. His Honour said:
First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively.[29]
[28](2007) 234 CLR 330.
[29]Ibid 337-8 [18].
The second, third and fourth of these propositions are also relevant when considering contributory negligence. Specifically in relation to the fourth of Gummow J’s propositions, as with the issue of negligence, the issue of contributory negligence must be looked at prospectively and not retrospectively. In this case, there was much in the respondent’s arguments (both at trial and on appeal) in respect of the question of contributory negligence that involved no more than a retrospective analysis of what occurred. A retrospective analysis is fundamentally misconceived. As Barwick CJ said in Maloney v Commissioner for Railways (NSW):[30]
Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. The matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done. Of all these elements, evidence is essential except to the extent that they or some of them are within the common knowledge of the ordinary man. The fertile but unqualified imagination of counsel or judge can never be a substitute for such evidence.
[30](1978) 52 ALJR 292, 292.
It does not follow that because with hindsight the appellant could have removed the bundle from the top of the stack prior to the accident or alternatively moved out of the path of the bundle before it fell that she was negligent in failing to do so.
When one looks at all of the circumstances to which we have referred, it is difficult to say that there was even any inadvertence or misjudgement by the appellant in performing her work. Far less, in our view, was there any evidence of negligence on her part.
The respondent’s defence raised two specific particulars of contributory negligence:
(b)failing to use commonsense by unpacking boxed items adjacent to a loaded pallet, having removed the plastic wrap supporting the load, when she knew or ought to have known that it was possible for the load to move during transit and for items to become unstable.
(c)failing to pay any or any proper attention to the activity she was performing by failing to monitor the load while she was unpacking the pallet to ensure the unloaded items remained stable.
Neither of these particulars was made out. There was no evidence either that the load had moved during transit or that this was a cause of instability.
Likewise there was no evidence from which it could be concluded monitoring of the pallet would have enabled instability to be detected before the bundle of metal brackets fell.[31]
[31]While we have not set out the other paragraphs of particulars pleaded by the respondent in relation to its plea of contributory negligence, none of them are made out either. For the sake of completeness we should however note that some of these paragraphs were not in truth particulars of contributory negligence (for example, the plea ‘failing to take any or any reasonable care for her own safety’), while those particulars that did not suffer from this vice must fail because they were predicated upon the appellant having a state of knowledge that was not established on the evidence and/or they could not be made out because no evidence was led as to any relevant step that might have been taken that would have averted the risk of injury to the appellant had the appellant notified or informed her superiors as contended for in the respondent’s defence.
The appellant’s uncontested evidence was that the boxes on the pallet appeared stable and that the bundle was wrapped in plastic which concealed the nature of its contents. She did not know that the bundle was heavy. The bundle was at about eyelevel above ground. She was given no warning or directions with respect to handling or dealing with the bundle. She was working in a confined and cluttered space and had been carrying out repetitive unpacking of the boxes on consecutive pallets for approximately eight hours (with a 20 minute lunchbreak). She had been told to unpack as quickly as possible.
The respondent’s manager gave evidence that the bundle was bubble-wrapped in plastic. She admitted that the bundle should not have been on top of the load.
There was no evidence of prior experience in the appellant’s employment which could have alerted her to the potential danger which eventuated.
The appellant submits that the danger constituted by the bundle of brackets falling was not reasonably foreseeable. While we agree that the danger of the bundle falling was something which was unlikely to have been foreseen by a far-sighted person in the appellant’s position and with the appellant’s knowledge,[32] it cannot be said that the jury was bound to conclude that it was farfetched or fanciful.[33] In this sense, the risk was foreseeable (even if not in fact foreseen by the appellant). On the other hand, if by this submission the appellant means no more than the appellant, without acting (or omitting to act) unreasonably, failed to foresee any risk of injury, then we agree.
[32]Cf NSW v Fahy (2007) 232 CLR 486, 551 [216] (Callinan and Heydon JJ).
[33]Wyong Shire Council v Shirt (1981) 146 CLR 40, 48 (Mason J).
In the alternative to the submission just referred to, the appellant submits that there was no evidence of conduct showing a want of reasonable care by the appellant for her safety. We accept this submission. We do not accept that in the circumstances we have described it was open for the jury to find contributory negligence simply on the basis:
(a) the appellant saw a package (of uncertain contents) on top of the boxes at the back of the pallet she was unpacking; and
(b) the appellant had the option of not squatting with her back to the load as she unpacked a carton from the front portion of the pallet.[34]
[34]These were submitted to be the critical facts in argument by counsel for the respondent on appeal.
In our view the system of work followed by the appellant did not involve inadvertence to something which was readily apparent, nor any positive misjudgement, nor in our view any negligence. The nature of the risk of injury to the appellant was a concealed one. First, no instability of the stack was apparent and secondly the heavy nature of the objects in the bundle on top of the stack was not known to the appellant.[35] In consequence, it cannot be said the appellant knew or ought reasonably to have known she was at risk of injury from working in the position she did.
[35]Cf Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 437 (Kaye J with whom McGarvie J relevantly agreed at 441).
It is only by the exercise of hindsight that it can be said steps were reasonably open which could have avoided the accident which occurred. The appellant acted in accordance with the standard of a reasonable worker placed in her position.
In so saying we are mindful of the observations of the Full Court in Zoukra v Lowenstern:[36]
An appellate court must be on its guard against treating any view which is inconsistent with that which it may itself form as being unreasonable or unjust. It is one thing to form a definite opinion about the material before it, but it is quite another to hold that any contrary opinion is one which no reasonable jury could take.
[36][1958] VR 594, 595 (Herring CJ, O’Bryan and Dean JJ).
Nevertheless in the present case we are satisfied no reasonable jury could make a finding of contributory negligence. Having come to this conclusion, it is not necessary to consider the appellant’s causation argument.
There being no evidence of any failure by the appellant to take reasonable care for her own safety, the jury’s finding of contributory negligence should be set aside. Accordingly, we will allow this appeal and, in lieu of the judgment below, enter judgment in accordance with the jury’s verdict with no reduction for contributory negligence.
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