Mayhew v Lewington's Transport Pty Ltd - [2010] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3789 of 2009

SHANE WILLIAM MAYHEW
	v
LEWINGTON'S TRANSPORT PTY LTD (ACN 005 471 036)

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JUDGES:	WARREN CJ, NEAVE JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2010
DATE OF JUDGMENT:	12 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 202

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NEGLIGENCE – Employer - Contributory negligence – Distinction between contributory negligence and mere inadvertence, inattention or misjudgement – Mere misjudgement – Directions to jury – Directions on contributory negligence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.F. Wheelahan S.C. with Mr P.H. Solomon	Constable Connor
For the Respondent	Mr R.P. Gorton QC with Mr M.F. Fleming	Wisewould Mahony

WARREN CJ:
NEAVE JA:
BEACH AJA:

Introduction

This appeal concerns a finding by a jury of 30% contributory negligence in relation to an accident that occurred in the course of the appellant’s employment with the respondent on 8 July 2002 when the appellant fell from steps situated between the cabin and the first trailer of a Kenworth prime mover.

On 8 July 2002, Mr Shane Mayhew, the appellant, was employed by Lewington’s Transport Pty Ltd, the respondent, as an interstate truck driver. He had been so employed since September 2001. On that day (8 July), the appellant was attempting to descend steps between the rear of the cabin of the prime mover and the front of the first trailer. The appellant had been up on the truck between the rear of the cabin and the front of the first trailer for the purpose of hooking lines up between the truck and the trailers he was carrying. Whilst descending the steps, the appellant fell and suffered injuries affecting his back and right leg.

The appellant sued the respondent for damages in respect of his injuries pursuant to s 134AB of the Accident Compensation Act 1985. On 18 March 2009, the jury returned a verdict for the appellant on the issue of negligence and assessed the appellant’s pain and suffering damages in the sum of $325,000 and the appellant’s pecuniary loss damages in the sum of $1,136,765. However, the jury also found that there was contributory negligence and assessed the appellant’s contributory negligence at 30%.

On 9 June 2009, judgment was entered in accordance with the jury’s verdict, in the sum of $762,825.[1]
[1]This sum was inclusive of interest up to 9 June 2009 and was calculated after the reductions required by s 134AB(25) of the Accident Compensation Act and s 26(1) of the Wrongs Act.

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; alternatively, the appellant contends that the finding of 30% was “perverse and against the weight of the evidence”. Additionally, the appellant makes complaint about the charge to the jury on the issue of contributory negligence.

Mr Mayhew’s grounds of appeal

The appellant’s grounds of appeal are as follows:

1.The…

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: [2010] VSCA 202
Decision Date: 12 August 2010

CaseChat Overview and Summary

Mayhew commenced proceedings against Lewington’s Transport Pty Ltd, seeking damages for personal injuries sustained while working as a driver for the defendant company. Mayhew alleged that the injuries were caused by the defendant’s negligence, in particular, that the employer failed to ensure that the truck he was driving was fit for the purpose of transporting goods. The defendant denied the allegations, and pleaded contributory negligence by Mayhew. The case proceeded to trial before a jury in the Supreme Court of Victoria, which found in favour of Mayhew on liability, but apportioned 50% of the fault to Mayhew for contributory negligence. The defendant appealed against the verdict.

The primary issue before the court was whether the trial judge had erred in directing the jury on the issue of contributory negligence. The defendant argued that the trial judge had misdirected the jury by failing to distinguish between mere inadvertence or misjudgement on the part of the plaintiff, and contributory negligence, which required a finding of some fault on the part of the plaintiff that contributed to their own injury. The court had to consider whether the trial judge’s directions to the jury had correctly articulated the distinction between mere inadvertence or misjudgement and contributory negligence.

The court held that the trial judge had erred in his directions to the jury, as he had not sufficiently distinguished between mere inadvertence or misjudgement and contributory negligence. The court held that contributory negligence required a finding of some fault on the part of the plaintiff that contributed to their own injury, whereas mere inadvertence or misjudgement did not necessarily involve any fault on the part of the plaintiff. The court held that the trial judge’s directions had not adequately distinguished between the two concepts, and that this error may have led the jury to find contributory negligence where there was none. The court allowed the appeal, set aside the finding of contributory negligence, and remitted the matter to the Supreme Court for a new trial on the issue of damages.

The court did not make any orders for costs.

Orders

Orders of the court

This appeal must be allowed and the jury’s finding of contributory negligence set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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