Li v Toyota (Ruling No 2)
[2010] VSC 451
•30 September 2010 (Written reasons 4 October 2010)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9344 of 2009
| JAMES LI | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 23, 24, 27, 28, 29 and 30 September, 1 October 2010 | |
DATE OF RULING: | 30 September 2010 (Written reasons 4 October 2010) | |
CASE MAY BE CITED AS: | Li v Toyota (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 451 | |
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PRACTICE AND PROCEDURE – Civil trial by jury – Contributory negligence – Submission of No Case to Answer to Defendant’s allegation of contributory negligence – Withdrawal of an issue from a jury - Sufficiency of evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC Mr M Ruddle | Clark Toop & Taylor |
| For the Defendant | Mr D Curtain QC Ms F Ryan | Minter Ellison |
HIS HONOUR:
The plaintiff, Mr James Li, asserts that he sustained a significant knee injury, in 2005 as a result of the negligence and breach of statutory duty of his employer, Toyota, between October 1999 and May 2005.
Mr Li worked in a team at Toyota's Altona plant on a press and conveyor numbered 5A. He carried out several tasks, predominantly stacking parts by taking those parts from a conveyor to a stillage. This was done repetitively and regularly during the course of his employment. Central to Mr Li's claim in both negligence and breach of statutory duty are allegations concerning the lack of rotation of his work and the failure of Toyota to ensure a reasonable rotation of work duties.
Toyota alleges contributory negligence. At the conclusion of the evidence, senior counsel for Mr Li applied to have that issue removed from the jury's consideration. He contends that the plaintiff has no case to answer on this issue.
I have determined to resolve this question without reserving non obstante veredicto. It seems to me that the issues and the principles are relatively straightforward and can be determined in the course of the running of this trial.
The principles to be applied on an application such as this[1] are as follows and can be stated succinctly. First, the evidence is to be considered on the basis most favourable to the party who carries the burden of proof, in this case the defendant. Second, the test to be applied is whether there is evidence upon which a jury properly directed could reasonably return a verdict for the defendant on this issue. Third, the threshold differs from the appellate context, here the question is not whether a verdict for the defendant would be unreasonable or perverse at trial.
[1]See Naxakis v. Western General Hospital (1999) 197 CLR 269, Hocking v. Bell (1945) 71 CLR 430, Swain v. The Waverley Municipal Council (2005) 220 CLR 517; Herald Weekly Times Limited v. Popovic (2003) 9 VR 1.
Toyota’s particulars of Mr Li’s contributory negligence are as follows:
(a)Failing to follow instructions in the performance of his duties;
(b)Failing to use assistance available to him;
(c)Failing to advise the defendant that his work was causing him pain and actual injury; and
(d)Failing to rotate his duties as instructed.
Based on the evidence of Mr Li and Mr Smith, his foreman, the jury could on the most favourable view of the evidence available to Toyota find that:
(a)Toyota established a system of work providing for rotation at each break between stacking and inspecting.
(b)It was open to Mr Li, if he wished, to carry out work inspecting rather than stacking.
(c)Mr Li chose to do stacking work rather than inspecting.
(d)From 2001 onwards, Mr Li was aware that he suffered from a knee condition which required treatment at the very latest in 2003, and persisted through to 2005.
The principles relevant to a finding of contributory negligence have been set out recently by the Court of Appeal in the decisions of Mayhew v. Lewington's Transport Pty Ltd[2] and Fassbender v Bohlmann.[3]
[2][2010] VSCA 202.
[3][2010] VSCA 204.
Senior counsel for Mr Li, in the course of an argument, invited me to focus on what was said by the High Court in McLean v. Tedman.[4] In that case the High Court was required to consider whether a garbage collector who ran across the road from behind a garbage truck and 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 from 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. 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. The High Court said as follows in respect of the allegation of contributory negligence:-
The question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two.[5]
and then:-
It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.
[4](1984) 155 CLR 306.
[5]Ibid, 315.
Where an employer has been demonstrated to have failed to provide a safe system of work for its employee who is then injured whilst working within the framework of that system, that fact, of itself, does not, as the High Court said in McLean, necessarily exclude a finding of contributory negligence on the part of the worker. It is a question of fact to be determined in light of the circumstances and conditions prevailing at the time.
It is worth repeating what was said by Justice Windeyer in Sungravure Pty Ltd v Meani,[6] part of which was cited by the High Court in McLean:-
When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention, bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand and other prevailing conditions.
They may consider 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. But I quite fail to see how considerations of setting and circumstance can produce any rule of law or any general principle applicable to activities in factories that is not applicable to activities elsewhere in a coal mine, a musterer's camp, a shearing shed, upon a highway or anywhere else.[7]
In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care. These things were for the consideration and evaluation of the jury. Negligence is, in every case, a question of fact.[8]
[6](1964) 110 CLR 24.
[7]Ibid, 37.
[8]Ibid, 37.
There is, I think, evidence upon which a jury could conclude that Mr Li had failed to exercise reasonable care for his own safety: Mr Li was not obliged as part of his work duties to work solely or mainly upon the stacking duties. The jury could conclude that he was able if he wished, to rotate to inspecting after each break. It could reason that, knowing of his knee condition from 2001, he did not seek to rotate his duties as he could have and this would have reduced the risk of injury to that knee. It seems to me that this is a matter which is appropriate for the “consideration and evaluation of the jury”.
Of course, there are a number of responses that can be proffered by Mr Li to the allegations of contributory negligence; they will be considered by the jury in its analysis of the allegations of contributory negligence.
In my view, there is a case to answer on contributory negligence and the jury should determine this issue.
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