Richardson v Sunraysia Institute of TAFE
[2001] VSCA 170
•25 September 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5493 of 2000
| JOHN CAHILL RICHARDSON |
| Appellant/Plaintiff |
| v. |
| SUNRAYSIA INSTITUTE OF TAFE |
| Respondent/Defendant |
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JUDGES: | BROOKING, CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 September 2001 | |
DATE OF JUDGMENT: | 25 September 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 170 | |
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Negligence - Contributory negligence - Apportionment of responsibility - Between employer and employee - Inadvertence or misjudgment - Whether issue put to jury - Failure to take exception to judge's charge - Apportionment of contributory negligence at 65 percent - Role of appellate court in deciding appeal against jury's apportionment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The Hon. A. Graham, Q.C. and Mr I.R. Fehring | J.N. Zigouras & Co. |
| For the Respondent | Mr J.H.L.Forrest, Q.C. and Mr P.H. Solomon | Herbert Geer & Rundle |
BROOKING, J.A.:
Charles, J.A. will deliver the first judgment.
CHARLES, J.A.:
The appellant was employed as a cleaner at the respondent college and while cleaning floors around the college used a Clark Scrubbing Machine. On occasions the machine (which was extremely heavy, nearly 90 kgs) required repairs, and the appellant had from time to time organised and transported the machine to enable it to be repaired. In July 1994 the machine had been sent away to be repaired, and the appellant was told by his supervisor, Ms Gayle Rivett, that it was available and that he was to go and collect it with a man who worked with him, Kevin Murphy. On 29 July 1994 the appellant and Murphy went to pick it up. For this purpose they borrowed a utility vehicle which the respondent had at its premises, usually used by the gardeners. They went to pick up the machine from a company called Interprobe Services, where it had been repaired. The machine was lifted into the utility by a forklift at the repairer's premises and the appellant and Murphy then returned to the college, arriving at approximately 4.15 on a Friday afternoon. They backed the utility up to a loading bay platform. With the appellant standing on the platform and Murphy in the back of the utility, they lifted the machine approximately four inches up on to the platform. While they were doing so, the appellant said he suffered back pain. They then wheeled the machine to the storage room and Murphy returned the utility to the compound area. Shortly after returning the machine, the appellant reported to his supervisor, Ms Rivett, that he had injured his back while lifting the machine.
The appellant then brought these proceedings as plaintiff seeking damages for personal injuries from the respondent for injuries allegedly arising in the course of his employment on 29 July. He alleged he had been required to lift the machine in the course of his employment and in consequence suffered injury to his lower back as a result of the respondent's negligence. The action was commenced by writ in the
County Court at Mildura and was heard by a judge and jury at Mildura in a trial commencing on 8 May 2000. On 10 May the jury reached a verdict in favour of the appellant for $350,000 but assessed him as being guilty of contributory negligence to the extent of 65%. Following the relevant statutory deductions, including $92,951.25 for payments made pursuant to the Accident Compensation Act 1985, judgment was then entered for the appellant for the sum of $43,548.75. The verdict for the appellant was however below the respondent's statutory offer, and accordingly the appellant was required to pay the respondent's costs of the trial on Scale D.
The appellant now appeals to this Court, challenging the adequacy of the judge's charge to the jury with respect to contributory negligence and the finding by the jury of contributory negligence on his part of 65%. In relation to the jury's finding, ground A of the notice of appeal claims that the jury's verdict was against the evidence and the weight of the evidence and ground E claims that the jury should have found that there was no contributory negligence or alternatively that 65% was unacceptably disproportionate. In relation to the charge, ground H claims that the judge used the expression "dollops" as a quantitative expression in relation to contributory negligence, thus giving the clear impression that the finding of contributory negligence should have been considerable. Ground D complains that the judge wrongly ascribed contributory negligence to the appellant as trying to do something which he knew or ought to have known was the work of at least double, and probably three times, the number of men, there being no evidence that at the time there was such a number of men available. The relevant comment was, however, not made during his Honour's charge but while the appellant's counsel was taking an exception to the charge, in the absence of the jury. I did not understand this ground to be pursued in argument in this Court.
The remaining four grounds made complaint about the contents of the judge's charge, particularly in relation to the aspect of inadvertence or misjudgment in relation to contributory negligence on the part of the appellant. Ground B claims that the judge should have redirected the jury on the issue of contributory negligence in response to the exception taken by the appellant's counsel. Ground C complains that the judge should have redirected the jury in relation to contributory negligence that the jury had to draw the line between mere thoughtlessness or inadvertence and negligence. Ground F claims that the judge should have told the jury that in the circumstances the appellant may have acted through some temporary lapse in attention, or the pressure of affairs produced the need to provide prompt action to unload the equipment rather than leave it for the weekend exposed to the weather. Ground G claims that the judge should have directed the jury, in accordance with the exception taken, on the issue of mere inadvertence and the duty of the employer to provide an adequate system of physical assistance to enable the appellant to unload heavy equipment.
Before turning to these issues, it is necessary to set out further some of the evidence before the jury. The appellant's evidence was that he had been told by Ms Rivett that the machine was available to be picked up, and that he went with Murphy to the repairer's premises, where the machine was lifted into the utility by a forklift. He said that although he had been involved with collecting the machine from the repairer's on two previous occasions and that on those occasions he had got help from four to six people to lift the machine out of the utility, on this occasion he did not seek help with the lifting of the machine once they were back at the college as there was no one around and he believed the office was locked up. The appellant described the process by which the machine was lifted on to the platform. He said that he telephoned Ms Rivett, his supervisor, at about 5.30 p.m. to report the accident. Under cross-examination the appellant accepted that on previous occasions when he had been involved with collecting the machine, four to six people had been used to lift it to the ground. He agreed that he knew the machine was exceedingly heavy. The appellant said that he did not look to see if anyone was available to give lifting assistance when he returned to the college and that he just assumed that everyone had gone from the premises. He agreed that he just decided to lift the machine without seeking any more assistance and also that he could have left the machine in the back of the utility in the compound area of the respondent's premises over the weekend.
Mr Murphy gave evidence as to the circumstances of the accident. He said that in July 1994 he was required to go with the appellant to Interprobe Services to pick up the machine and that they obtained the utility from the compound, which was a caged open area. He said the machine was lifted into the utility with the aid of a forklift and that they returned to the college at around 4.15 in the afternoon. Under cross-examination Murphy agreed that they did not look or make enquiries when they got back to the college to see if there was anyone around, and that they believed they could lift the machine on to the loading bay.
Ms Rivett, the respondent's Campus Administrator, said that she asked the appellant to collect the machine as it had been repaired, and as he had been asking whether it was ready. She gave evidence that she saw the appellant at about 5 o'clock in her office when he came to it and reported that he had hurt his back lifting the machine. At the time the appellant reported the accident, the male finance manager of the department was in the office with her and the director of corporate services was also nearby. She said that both those men had at times given people a hand at the campus to lift and move things. No cross-examination was directed to this statement.
During cross-examination the appellant's evidence changed on a number of significant matters. He had said during evidence-in-chief that he had arrived back at the campus at 5.30 p.m., that there was no one around at the time and that the office was all locked up. He said he had injured himself at 5.30 p.m. During cross-examination an accident report, signed by him, was put to him, in which the injury was said to have occurred at 4.30 p.m. and his report to Ms Rivett was made at 5 p.m. In relation to his statement that he did not seek assistance, the office being all locked up, he accepted in cross-examination that he actually visited Ms Rivett in her office at 5 p.m. He accepted that he did not go around to see if he could find anyone to give him a hand to lift the machine, having just assumed that everyone was gone. He said he just decided to try and lift it himself without trying to find anyone else, even though he knew that it needed four to six people to lift the machine. He then said that they did not leave the machine on the utility "because we had to use it" (i.e. the machine), and added, "well, we were going to use it that night". He later accepted in cross-examination that they were not going to use that machine that night "because we had no time". He agreed that the utility could have been left with the scrubbing machine in the compound, locked up, and that he could have rung Ms Rivett to ask for assistance, that she was always available on the phone.
Both counsel then addressed the jury in relation to negligence and contributory negligence and the judge's charge followed. His Honour then called for exceptions and the following exchange took place:
"COUNSEL:Your Honour, in relation to the question of contributory negligence, it's my submission that your Honour should make it clear to the jury that if the incident arose due to inadvertence or a failure of Mr Richardson to clearly and fully at the time appreciate what he was doing, that that is a matter that should be considered, and would not be sufficient to warrant a finding of contributory negligence.
HIS HONOUR: This wasn't a matter which could be properly categorised as inadvertence. He embarked upon a course of action - that's the complaint that's made about him as to contributory negligence, which involved him in trying to do something which he knew, or ought to have known was the work of at least double the number, and probably three times the number of men who were on the job.
COUNSEL: Sir, the evidence was that when they attended the loading bay ...
HIS HONOUR: It's not a matter of inadvertence. ...
COUNSEL:Well, with respect, inadvertence to the question of it - the defendant in relation to that would have to show that he was aware - that is at the time - that he was aware that this was something he shouldn't be doing.
HIS HONOUR: I agree with you, and that's the way it's put.
COUNSEL:The evidence was that yes, he was aware that it shouldn't be lifted off a ute with less than four or six men ...
HIS HONOUR: I can only repeat what I said. It's not being put as a matter of inadvertence. Have you got something else?
COUNSEL:If the jury were to come to the view that he was guilty of contributory negligence - they may come to the view that simply him not turning his mind to it ...
HIS HONOUR: You didn't put that to the jury that way as being your case.
COUNSEL:I don't have to put it to them that it was inadvertence. It was put to them that the system had previously been that men lifted it off.
HIS HONOUR: I'm not going to mount another argument for you that you didn't mount yourself.
COUNSEL:I'm not trying to mount a new argument. It's a question of the jury fully understanding what contributory negligence ... ."
During his address to the jury, the appellant's counsel said that the appellant and Murphy were acting reasonably, and, answering a comment of counsel for the respondent, said that the appellant had not acted as a cowboy and was not on a frolic of his own. He said that the appellant had "made a reasoned decision to make the best of a difficult situation". Later in his address he said that the respondent had not provided proper assistance and supervision and "they left him [the appellant] in a situation where he had to make a difficult choice and he did the best he could". A little later he continued -
"The evidence - it's now uncontested evidence, but there was - where they were, there was no-one around. There was no obligation on them to go looking for the four or six people that they needed to get it off. They were going to lift it down onto the ground
In that situation where faced with the requirement to get the machine off, they made a choice. A choice that Mr Murphy would have made and was happy to assist him. Lift the front of the machine up onto the loading bay and then push it up on the main wheels. No risk of damaging the machine, the lift was four inches. It was heavy but it was four inches. They weren't trying to lift it out of the ute onto the ground, they made a choice, they made a reasonable choice and Mr Richardson should not be criticised - and more importantly - he should not be penalised for making a reasonable choice that confronted him on that Friday afternoon, because that law does not say he has to be penalised unless he acted unreasonably in the circumstances that he faces."
In this Court, Mr Graham (who did not appear at the trial) for the appellant sought to argue under grounds B, C, F and G a number of matters which were not covered either by the exception taken at the end of the judge's charge or by any of the grounds of appeal. For example, it was submitted that the judge in his charge had made no endeavour to explain what contributory negligence means. Complaint was made in the written submissions that when the judge referred to contributory negligence his Honour had said "so that if you found somebody who was guilty of contributory negligence the award of damages was $100 that person would finish up getting $50". It was submitted that this would have inevitably misled the jury into concluding that if there was any finding of contributory negligence the minimum that had to be deducted was half. Other complaints were made as to the percentage figures used by the judge, and to the fact that his Honour had made reference to contributory negligence in relation simply to the onus of proof. Various other complaints were made as to the adequacy of his Honour's explanation of contributory negligence and what was said to be the inadequate relationship of that explanation to the issues of fact which arose. It was submitted that the judge should have told the jury that contributory negligence similar to actionable negligence is a failure to take reasonable precautions against foreseeable risks of injury but, unlike actionable negligence, contributory negligence consists primarily of a failure to take care for one's own safety rather than a breach of duty owed to another. It was submitted that the jury should have been told that the damage the appellant suffered occurred as a result of his contributory negligence, in other words that the contributory negligence must be an actual cause of the loss.
In my view it is perfectly clear, from the way in which the exception was taken, that none of the matters just referred to were the subject of relevant exception. Nor are they covered by any relevant ground of appeal. The notice of appeal did include as ground I: "The appellant seeks to add to the above grounds of appeal upon receipt of the judge's charge." The notice of appeal was dated 24 May 2000, and on 9 June 2000 it was necessary for the appellant to make application under Order 64.16 of the Supreme Court Rules for the appeal not to be taken to be abandoned for a failure to deliver in time a note of the proposed contents of the appeal book. No application was made from that time, or even today, to amend in any way the grounds of appeal.
In general a party is bound by the way it conducts its case at trial, and it is not open to a party which has elected not to pursue a particular course at trial then to argue on appeal points not taken below; Liftronic Pty Ltd v. Unver[1]; Coulton v. Holcombe[2]. As Barwick, C.J. said in General Motors Holden Pty Ltd v. Moularas[3] -
"Generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered."
See also Commonwealth Bank of Australia v. Falzon[4].
[1](2001) 75 A.L.J.R.867 at [44] to [45] and [64] at proposition 6.
[2](1986) 162 C.L.R.1 at 8.
[3](1964) 111 C.L.R.234 at 242-243.
[4][1998] VSCA 79 at [15].
In these circumstances, save to the extent that the matters now argued are covered by the exception originally taken at trial, I would reject them. I should add that the judge's charge in relation to contributory negligence was, with respect, terse and not very helpful to the jury and the criticisms made by the appellant's counsel in written submissions were not without substance. Indeed the charge could have been criticised in other important respects in relation to what was said on negligence, contributory negligence and apportionment. But when the whole charge is read in the context of the limited issues put to the jury by counsel, I do not think that the jury would have been left in any real doubt as to their proper function. For reasons I shall give later, it seems to me that the apportionment made by the jury was well open to them. I would not accept that there is an appreciable risk that a different verdict would have been returned had his Honour given more complete directions on contributory negligence; Balenzuela v. De Gail[5].
[5](1958) 101 C.L.R.226 at 236.
The arguments now made in written submissions for the appellant underline the necessity for counsel at trial to take proper exception at the conclusion of the judge's charge. Had these complaints been made at that time it would have been possible for his Honour to give further assistance to the jury. If this Court had taken the view that there was sufficient substance in the complaints now made to raise a real possibility of a miscarriage of justice, requiring an order for a new trial, it would have been necessary to consider whether some special order should be made that counsel pay all or some portion of the costs wasted by the necessity to appeal and then to try the action a second time.
Turning to the grounds as covered by the exception taken, in so far as the appellant's injury resulted from inadvertence or a failure on his part clearly and fully to appreciate what he was doing at the time, which Mr Graham, while not abandoning his other grounds, made clear was the real basis of the appeal, it would have been necessary for the judge to explain to the jury the difference between contributory negligence on the one hand and mere inadvertence, inattention or misjudgment on the other. For it is well accepted that the law allocates the risk that "inadvertence, inattention or misjudgment" may give rise to injury by including it within the scope of an employer's duty to provide a safe system of work; McLean v. Tedman[6]; Butler v. Rick Cuneen Logging Pty Ltd[7]; Perri v. The Department of School Education Victoria[8]. In the present case the judge did not give any such explanation or directions to the jury, rejecting the need to do so on the ground that having regard to the way the case was conducted by the appellant the case could not "be properly categorised as inadvertence" and that this was not the way the matter had been put by the appellant's counsel in his case to the jury.
[6](1984) 155 C.L.R.306 at 311-313.
[7][1997] 2 V.R.99 at 102.
[8][1998] 1 V.R.591 at 597.
It is, I think, quite clear that no evidence had been led on behalf of the appellant that his actions were other than considered or deliberate. Indeed, in the passages from counsel's address already quoted, it can be seen that the case that was made at least six times was that the appellant's actions were the result of a reasoned and deliberate choice. There was, I think, no suggestion that it had been necessary for the appellant to follow the course he had chosen, other than a suggestion of counsel in his address (not the evidence of any witness) that it was necessary that the machine be kept under cover to avoid any rain that might fall in the weekend. It was not suggested that a tarpaulin or some other covering was not available for this purpose. There was no suggestion of any direction having been given that the appellant had felt compelled to adhere to, or that his actions had been induced by fatigue. Counsel did not put it to the jury that the appellant's conduct resulted from an inadvertent or temporary lapse of attention. The appellant indeed was well aware precisely how heavy the machine was, knew that at least four men were required to lift the machine safely and chose not to enlist the help of persons in fact at the site who would have been able to assist.
In all the circumstances, it seems to me that in the manner in which the trial was conducted no issue arose as to momentary or temporary inadvertence or misjudgment, and that it was therefore proper and appropriate for the trial judge to give no direction as to temporary inadvertence or inattention or misjudgment. I would therefore reject grounds B, C, F and G of the notice of appeal.
Ground E relates to the use by the judge of the word "dollops" in the course of his charge as a quantitative expression in relation to contributory negligence. Mr Graham's argument was that the jury had already heard the judge state that by implication the minimum percentage of contributory negligence would be 50%. He submitted that the use of the word "dollop" would effectively add to the jury's likely understanding that a substantial amount ought to be reduced from the damages by reason of contributory negligence. He relied on various dictionary definitions of the word "dollop" to suggest that the use of the word must have meant to the jury that there should be a substantial amount of contributory negligence. He put it that "If someone says to you do you want a dollop of cream on your scone, a person would complain if a miserly spoonful was placed upon it". Counsel for the respondent submitted that the reference to "dollops" was no more than a colourful expression to demonstrate that this was a case in which defendant's counsel was seriously putting a significant reduction on the basis of the demonstrable contributory negligence of the appellant. He submitted that it was precisely the sort of matter able to be dealt with at the trial if objection had been taken. These submissions in my view should be accepted, and in circumstances where no exception was taken at the trial, I would reject this ground also.
Mr Graham's written submissions included under grounds A and E the contention that the appellant had been instructed to pick up the machine, which he did with another man. There was no evidence that the respondent had any system for removal of the machine at the school end on to the school property. The appellant and Murphy duly picked up the machine and delivered it to the school. The only other people who could have assisted at the school, so it was said, were administrative staff. The submission was that there was no suggestion that Ms Rivett would have been able to assist, and the only evidence available was that there were two other males able to help. Ms Rivett, it was argued, had no knowledge of any system of work for unloading the machine once it arrived back at the school. The appellant was cross-examined about the system of work and said that he picked up the machine after it had been repaired on two previous occasions and each time had driven it around to the back of the storeroom, and then went into the workshop and found a few apprentices and they helped to unload it. On each occasion there had been four to six people helping.
The submission for the appellant was that it was unreasonable to extrapolate from those facts that the appellant's failure to go to his employers and look for executives to assist in unloading the machine could be construed as contributory negligence. He submitted that there was no evidence that the appellant knew they were there, the only evidence being Ms Rivett's evidence that they were. The submission continued that it was hard to contemplate a worker going to a white-collar management officer and asking him to come outside and unload a cleaning machine. There had been no dispute that the only lifting that was done was to lift the machine four inches from the tray of the utility on to the loading bay. It was submitted that the appellant had done all that was possible to minimise the lifting, and that therefore the jury's verdict was against the weight of the evidence.
In Podrebersek v. Australian Iron and Steel Pty Ltd[9], Gibbs, C.J., Mason, Wilson, Brennan and Deane, JJ. said -
[9](1985) 59 A.L.J.R.492 at 493-494; quoted in Liftronic, at 75 A.L.J.R. [2] per Gleeson, C.J.
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' ... Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."
Furthermore, in Zoukra v. Lowenstern[10], Herring, C.J., O'Bryan and Dean, JJ. said -
"It is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence. This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in respondent's favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with upon appeal."
This passage was quoted by McHugh, J. in Liftronic[11], noting that it had been cited with approval by the High Court, the Court of Appeal of New South Wales, and this Court.
[10][1958] V.R.594 at 595.
[11](2001) 75 A.L.J.R. at [29].
To make good the appellant's arguments under grounds A and E, it would be necessary to show that it was not open to the jury to find contributory negligence in an amount of 65%, or that this was a verdict reasonable jurors could not reach; Calin v. Greater Union Organisation Pty Ltd[12]; Puntoriero v. Water Corporation[13]; and Liftronic[14].
[12](1991) 173 C.L.R.33 at 41.
[13](1999) 199 C.L.R.575 at 586.
[14]75 A.L.J.R. at [29] to [38] per McHugh, J.
In my view the evidence before the jury renders it impossible for the appellant to make good this argument. He was well aware that the machine was exceedingly heavy. He had lifted the machine on to the tray of the utility on previous occasions, using four or six people to do so. The incident occurred at approximately 4.30 on a Friday afternoon, at a time when there were other males, at least two, in the administration office of the campus. On previous occasions each of these males had assisted people at the campus in lifting and moving things. The evidence was that he decided to lift the machine without endeavouring to seek assistance, although he knew he needed such assistance. The appellant did not, before the incident, go to the administration office to see who, if anyone, was still around. The appellant himself admitted in cross-examination that there were other male employees at the campus and that they would have given a hand if they were there. He simply did not look to see if anyone was there. In any event, if the machine had been left on the utility it would have remained for the weekend in a locked compound, and the appellant said he did not believe it would have been stolen if left in that place.
In these circumstances it was open to the jury to conclude that the appellant deliberately undertook a non-repetitive task, in respect of an extremely heavy machine which he knew ought safely to have had at least four people for the task, and in doing so was careless as to his own safety to a significant extent. The appellant's credit had suffered considerably in cross-examination and, quite apart from this Court's duty to take the most favourable view for the respondent which the jury could have taken upon the evidence, the jury's view of the appellant's evidence may well have been affected by the extent to which he shifted ground under cross-
examination. Particularly detrimental to his credit would have been the fact that he first fixed the time of the injury to himself at 5.30 p.m., then saying that he telephoned Ms Rivett, when he was later forced to concede, with some reluctance, that he had been injured at 4.30 p.m. and had visited Ms Rivett in her office at 5 p.m., as well as his being forced also to concede that he was not (contrary to his earlier statement) going to use the machine that afternoon.
It was plainly not possible on the facts for the appellant to contend that the correct finding should have been one of no contributory negligence, and no attempt was made by his counsel at trial to apply for the issue of contributory negligence to be removed from the jury.
In all these circumstances, as Gummow and Callinan, JJ. said in Liftronic[15] -
[15]75 A.L.J.R. at [60].
"The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury's view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain. A jury is uniquely well qualified to decide ... further 'what is considered to be reasonable in the circumstances of the case
[according to] current community standards'."
Grounds A and E should accordingly also be rejected.
The appeal should in my view be dismissed.
BROOKING, J.A.: I agree.
CHERNOV, J.A.: I also agree.
BROOKING, J.A.: The appeal is dismissed with costs.
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