Martin v Hendersons Industries Pty Ltd - [2004] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3737 of 2002

BARRY MARTIN
	Appellant
v.
HENDERSONS INDUSTRIES PTY. LTD.	Respondent

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JUDGES:	CHARLES, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	2-4 February 2004
DATE OF JUDGMENT:	3 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 19

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NEGLIGENCE – Breach of statutory duty – Personal injuries – Reasonable foreseeability of damage – Employer’s duty to provide safe system of work – Adequacy of judge’s charge to jury – Failure to take exception – Verdict for defendant - Whether verdict perverse – Appeal dismissed – Occupation Health & Safety (Manual Handling) Regulations 1988, regs.5(b), 6(1).

APPEAL – Points and objections not taken at trial – When not allowed to be raised on appeal – Course of conduct of trial – Case argued on appeal different to that argued at trial – Functions of appellate court.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.F. Hore-Lacy S.C. Mr P.G. Misso	Ryan Carlisle Thomas
For the Respondent	Mr J.H.L. Forrest Q.C. Mr J.P. Gorton	Wisewoulds

CHARLES, J.A.:

The plaintiff/appellant was employed by the defendant/respondent as a spot welder in 1995. In October 1995, while working in the course of his employment with the respondent, the appellant suffered injury to his back. The appellant was obliged manually to remove panels from a pallet and to spot weld them. The panels would then be turned into car seats for the Ford Motor Co. The principal case made for the appellant was that the pallets were frequently overfilled with panels at the Ford plant, causing the panels to become jammed in the pallets, and that as a result of the physical effort required to remove the panels he suffered injury to his lower back. By writ filed on 15 February 2001, the appellant commenced proceedings in the County Court seeking damages for injuries he claimed he had thus sustained. The defendant denied negligence and breach of statutory duty. There was an allegation of contributory negligence. The major issue in the proceeding was whether or not the panels were stacked too tightly in the pallets resulting in the panels sticking inside one another and making their removal from the pallets physically too difficult.

The trial of the proceeding commenced on 3 June 2002 before a judge and jury of six and proceeded until 20 June. On that day the jury returned a verdict that there had been no negligence or breach of statutory duty on the part of the respondent which was a cause of the appellant’s injuries.

The appellant claims (ground 4 of the notice of appeal) that the judge erred in giving inadequate instructions to the jury with respect to his case in negligence and breach of statutory duty by failing to explain to the jury the way in which they should apply the relevant principles of law to the facts of the case; and (grounds 8, 9 and 10) that the verdict of the jury with respect to negligence and breach of…

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: [2004] VSCA 19
Decision Date: 3 March 2004

CaseChat Overview and Summary

In the matter of Martin v Hendersons Industries Pty Ltd, the appellant brought a case against the respondent employer for injuries sustained in the workplace. The incident occurred when the appellant was lifting a heavy load without the benefit of mechanical assistance, in contravention of the Occupational Health & Safety (Manual Handling) Regulations 1988. The trial resulted in a verdict for the respondent, and the appellant subsequently appealed the decision to the court of appeal. The primary focus of the appeal was whether the verdict was so unreasonable as to be unjust and the adequacy of the judge’s charge to the jury.

The court was required to determine if the trial judge had properly directed the jury on the issue of foreseeability and whether the respondent had breached its statutory duty to provide a safe system of work. Additionally, the court had to assess if the appellant's failure to take exception to the charge at trial precluded raising the issue on appeal. The respondent argued that the appeal should be dismissed as the points and objections raised were not taken at the trial, and the course of the trial did not permit the case to be argued as it was on appeal.

The court found that the jury had been adequately directed and that the verdict was not perverse or unjust. The appellant’s failure to object to the charge at trial meant that certain issues could not be raised on appeal. Furthermore, the court held that it was not within its function to consider a case argued on appeal that differed from that argued at trial. Consequently, the appeal was dismissed. The court emphasised the importance of objecting to the judge’s charge during the trial and adhering to the case as argued at trial when appealing.

Orders