Terceros v Allen Foundry Company Pty Ltd (Ruling)
[2024] VCC 1831
•21 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-23-01739
| HUGO ROBERTO TERCEROS | Plaintiff |
| v | |
| ALLEN FOUNDRY COMPANY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24, 25, 28, 29, 30 and 31 October 2024 | |
DATE OF RULING: | 21 November 2024 | |
CASE MAY BE CITED AS: | Terceros v Allen Foundry Company Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1831 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Civil jury trial – verdict of negligence and contributory negligence – motion by plaintiff for judgment notwithstanding the jury verdict (non obstante veredicto)
Legislation Cited: Occupational Health and Safety Regulations 2017 (Vic)
Cases Cited:Naxakis v Western General Hospital (1999) 197 CLR 269; King v Amaca Pty Ltd [2011] VSC 422; Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219; Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Ruling: Application to set aside the jury’s verdict non obstante veredicto with respect to contributory negligence dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson with Ms S Fernando | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr W R Middleton KC with Mr T Storey | Wisewould Mahony |
HER HONOUR:
Introduction
1In this proceeding, the plaintiff, Mr Hugo Terceros, claims damages for injuries he sustained in a fall from a vertical ladder on 19 August 2019 in the course of his work for the defendant, Allen Foundry Company Pty Ltd (“Allen Foundry”).
2On 28 October 2024, I reserved leave to the plaintiff to move for judgment notwithstanding the jury’s verdict with respect to Questions 2, 4 and 5.
3On 31 October 2024, the jury in this matter delivered a verdict as follows:
Question 1:Was there any negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss or damage?
Answer: Yes
Question 2:Was there any breach by the defendant of the regulations under the Occupational Health and Safety Regulations 2017 (Vic) which was a cause of the plaintiff’s injury, loss or damage?
Answer: No
Question 3:If ‘YES’ to either or both of Question 1 and 2, in what sum do you assess the plaintiff’s damages for:
a. pain and suffering?
Answer: $106,200
b. past economic loss?
Answer: $212,400
c. future economic loss?
Answer: $368,500
Question 4:Was there any negligence on the part of the plaintiff which was a cause of the plaintiff’s injury, loss or damage?
Answer: Yes
Question 5:If ‘YES’ to Question 4, in what proportion (expressed as a percentage) is it just and equitable to apportion responsibility for the injury, loss or damage between the parties?
Answer: Plaintiff’s share: 65%
Defendant’s share: 35%.
4Following the jury’s verdict, Mr Terceros moved for judgment notwithstanding the jury’s verdict on Questions 4 and 5. Allen Foundry opposed the motion.
5Mr Terceros did not move for judgment notwithstanding the jury’s verdict on Question 2.
The applicable principles
6The legal principles are well known and were not in issue.
7In Naxakis v Western General Hospital,[1] Gaudron J stated:
“It is well settled that, where there is a jury, the case must be left to them ‘[i]f there is evidence upon which [they] could reasonably find for the plaintiff’, or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if ‘there was no evidence on which the jury could properly conclude that the plaintiff had made out his case’. That does not mean that the case must be left to the jury if the evidence is ‘so negligible in character as to amount only to a scintilla’. However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, ‘that the overwhelming body of evidence points to the [contrary]’.
Moreover, when considering whether there is some evidence upon which a jury could find for a plaintiff, it is important to bear in mind that the jury may properly accept parts of a witness’s evidence and reject others. Thus, for example, a jury may believe what is said by a witness in examination in chief and reject apparent modifications or qualifications elicited in cross-examination.”
(emphasis added)
[1](1999) 197 CLR 269 at paragraphs [16] and [17] (footnotes omitted)
8Further, McHugh J stated:[2]
When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.”
(emphasis added)
[2]Ibid at paragraph [41]
9In King v Amaca Pty Ltd, [3] Kyrou J summarised the principles as follows:
“In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.
A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.
A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.”
(emphasis added)
[3][2011] VSC 422 at paragraphs [7]-[10]
10In Manhattan Homes Pty Limited v Burnett,[4] the New South Wales Court of Appeal recently considered the authorities in relation to inadvertence and contributory negligence. Leeming JA noted that a formulation that inadvertence was not negligence does not reflect the law. Leeming JA referred to Sungravure Pty Ltd v Meani,[5] in which Kitto, Menzies and Owen JJ said:
“In support of the Full Court’s decision, counsel for the respondent made the further submission that the evidence was equally consistent with the view that the respondent had merely acted thoughtlessly or inadvertently and not negligently and that, in these circumstances, a finding of contributory negligence could not be made. The argument seemed to proceed upon the basis that there was a clear line of distinction to be drawn between an act done without reasonable regard for one’s own safety on the one hand and an act done inadvertently or without thought on the other. But we are unable to agree that this is so. An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact.”
(emphasis added)
[4] [2024] NSWCA 219 (“Manhattan Homes”)
[5] (1964) 110 CLR 24 at 33, paragraph [6]
11Leeming JA said further:[6]
“Sometimes this test is encapsulated in the distinction between mere inadvertence and contributory negligence, being the test authoritatively stated in McLean v Tedman … It is to be borne in mind that the word ‘mere’ does a deal of work in that encapsulation. It is necessary when applying that test to bear in mind that inadvertent conduct by a plaintiff may or may not amount to contributory negligence, and the real question is as Mason J put the issue at 573 in Ruprecht, whether … [the] omission was incompatible with the conduct of a reasonable and prudent man. The issue is unavoidably factual … .”
(emphasis added)
[6]Manhattan Homes (supra) at paragraph [5]
12The particulars of contributory negligence were as follows:
“(a) Failing to pay attention to the task at hand;
(b) Failing to use equipment in the manner for which it was designed;
(c) Failing to pay attention to where he placed his hands;
(d) Failing to hold onto the available handrail on the ladder;
(e) Executing an action which was in all the circumstances beyond his strength and/or capabilities;
(f) If climbing a ladder was too difficult for him (which is denied) then failing to notify his superior of the same.”
The evidence
13It is convenient to briefly refer to the background to the proceeding and some of the evidence to understand the parties’ respective submissions on this issue.
14Mr Terceros was employed by Allen Foundry as a labourer in its finishing shop from March 2017.
15There was a mezzanine level in the finishing shop which the parties agreed was at least two metres above the concrete floor.[7] The mezzanine level could be accessed by ladder, one at either end of the mezzanine level.
[7]Transcript (“T”) 227
16In his oral evidence, Mr Terceros said that:
(a) he had not been trained to climb ladders by Allen Foundry;
(b) he was not familiar with the ladders at the foundry;
(c) prior to 19 August 2019, he had not climbed any ladders at the foundry.
17Those aspects of Mr Terceros’s evidence were not challenged by Allen Foundry during cross-examination of Mr Terceros, and no evidence was adduced which contradicted that account.
18Mr Terceros called two of his former work colleagues to give evidence: Mr Jeffrey Davis, a former manager, and Mr Julio Garcia, a former grinder operator. Each of those witnesses said they had rarely used the ladder in question, believing the somewhat angled ladder which was located at the other end of the mezzanine to be safer. They had not been trained to climb ladders by Allen Foundry but believed it was a matter of common sense.
19Mr Terceros tendered an extract of a report of Mr John Dimopoulos, engineer, in which Mr Dimopoulos opined:[8]
[8]Exhibit P6
“Vertical ladders are more difficult to climb than traditional ladders and they are also less safe than traditional ladders which are typically set up at about 75° to the horizontal.
Climbing a vertical ladder shifts the body’s centre of mass beyond its base of support (feet, refer to Figure 6 below), as such if the hands lose grip with the ladder this results in the person falling backwards, whereas with the ladder on a 75° pitch, the body centre of gravity can be within the base support as such one can let go of the ladder without falling.”
Figure 6 Illustration showing the body’s centre of gravity (yellow arrow) relative to the support base for a vertical ladder and a ladder positioned at 75°.
20Allen Foundry called Mr Antony Colerio, its former maintenance manager, and Mr Timothy Cameron, the former managing director. They confirmed the ladder had been in its current form and location since the 1980s. Mr Colerio said he climbed it twice a week and found it safe.[9] Mr Cameron said he climbed it infrequently but had no difficulty when he did so.[10]
[9] T452 and T457
[10] T432 and T433
21Each of the former employees confirmed there had been no prior fall from the ladder.
22On 19 August 2019, Mr Terceros said he was instructed by his supervisor to go up onto the mezzanine level of the finishing shop to unchain an item which had been put there using an overhead crane.
23
Mr Terceros fell in the process of climbing the ladder shown below:[11]
[11]Exhibit P2, photograph 1
24The fall was not witnessed.
25Allen Foundry removed the ladder the day after Mr Terceros fell.
26Mr Terceros’s gave the following evidence-in-chief regarding the circumstances of his fall from the ladder:[12]
[12] T70-73
“A:I remember climbing the ladder, and then after not much.
…
So I was climbing the ladder, and then - I was going to [the] top, and then I lost my grip and fell back. And I cannot remember anything, but what I remember is waking up in the office bleeding …
…
I got close to the ladder, and then put my hand on the fourth rung of the ladder … - and started climbing up with my feet, slow - started climbing up the ladder.
Q: And did you know what you were climbing towards, or not?---
A: No, I didn’t know because I never pay attention to the ladder and un-used - yeah
Q: And can you recall whether you were acting quickly, slowly, or otherwise?---
A: Yeah, I was acting a bit in a hurry because - yeah, because I was - when I was - Ray call[ed] me, Ray call[ed] me, I was busy doing something else.
…
A:My head was on top of the rung, so I can see - I could see the – what was in front of me, but yeah, from that top I - when I - so my feet would have been on the fourth rung and my hands would have been right at the top. And then - yeah.
…
Q: And as best you’re able to say what was it that led to your losing grip?---
A: When I was climbing up I wasn’t familiar with the ladder, so in my mind I thought there was another rung on top, so when I was going quick up there I - I grabbed onto the air really and then that’s how I fell back.
…
A:[M]y body was leaning back because the centre of gravity was pushing me back because the ladder is straight up. So it was very uncomfortable with climbing the ladder like that.
…
A:[W]hen I was right on top I - I felt my body being pulled back because my centre of gravity was - was behind me.”
27The original Statement of Claim, filed and served on 18 May 2023, relevantly pleaded as follows:[13]
[13]T505
“7.The Defendant knew or ought to have known that the ladder which the Plaintiff was required to use was not safe for the Plaintiff’s use as the ladder was cut short and failed to extend sufficiently towards the top of the ladder to provide the Plaintiff a means of gripping the ladder to ensure he was able to safely alight to the mezzanine floor.
8.Further, after the incident, the Defendant performed the following modifications at the premises:
(a) It removed the ladder;
(b) It made alterations to the remaining ladders (which were of similar design as the ladder) to ensure they were safe to use.
PARTICULARS
The ladders which remained at the premises were modified to include a welded metal extension/handle to provide grip whilst a worker was climbing to the top of the ladder. In addition, ladders which were constructed vertically straight were tilted to make it safer to alight the ladder once the user reached the top.
9. …
PARTICULARS OF NEGLIGENCE AND/OR
BREACH OF DUTY OF THE DEFENDANT
…
(g) Failing to modify the ladder to attach an extension to the top of the ladder to enable the use to grip the ladder when the user reached the top of the ladder.”
28Allen Foundry tendered its Interrogatories 8 and 10, and Mr Terceros’s Answers sworn on 20 December 2023:[14]
[14]Exhibit D3
“8. Do you allege that the extension/handle was welded, positioned or affixed to:
(a) the ladder;
(b) any other and if so what number of ladders;
on any and if so what date?
8.In answer to Interrogatory 8, I say:
(a) Save to say the ladder on which I fell did not have an extension/handle welded to the top of the ladder, I am unable to say.
(b) I was informed that the remaining ladders at the premises were modified by the installation of metal extension handles at the top of the ladder.
10.Immediately before you fell at the premises on the 19th August 2019, did you slip or trip (stating which) for any and if so what reason?
10.In answer to Interrogatory 10, I say:
No, at the time of my injury I fell backwards as result of not being able to grip onto a rail or any part of the ladder when attempting to reach the mezzanine level.”
29In cross-examination, Mr Terceros agreed that prior to receipt of the expert report of Mr Dimopoulos in 2024, he believed that there were no extensions, handles or stiles at the top of the ladder from which he fell. He accepted that he had been mistaken about that.[15] Mr Terceros agreed that his case changed after receipt of the expert report.[16]
[15]T130
[16]T138
The charge
30During the charge, the jury were directed as follows relevant to this issue:[17]
[17] T644-654
“… you should also take into account that accident prevention is part of an employer’s responsibilities. The employer controls the workplace, the system of work adopted, the plant supplied and how employees are trained and supervised. Employers have wide powers over employees including a power to warn, to command and to enforce their commands.
Employers must also take account of the possibility that employees will be thoughtless, careless or even negligent in performing their duties, particularly when performing repetitive tasks.
…
This being a case in which an employee sues his employer, I should give you these further directions.
… First, you might conclude that momentary inattention or inadvertence on the plaintiff’s part, though contributing to his suffering injury, does not amount to contributory negligence in all the circumstances. But you would not be prohibited from reaching a contrary conclusion.
…
The question for you is whether you find any urgency in the task or other prevailing conditions may be taken into account in determining whether some temporary inadvertence, some misjudgement or some taking of risk was excusable because it was nonetheless the conduct of a reasonable and prudent person. …
…
Second, you should be very slow to find that an employee is guilty of contributory negligence if he suffers injury whilst following the employer’s system of work, even if that system involves apparent dangers, and even if the plaintiff knows or ought to know what he is doing is dangerous. If you found that the plaintiff when injured was undertaking his work in accordance with a system of work which permitted the task to be done in the way that he did it, there would scarcely be room for a finding of contributory negligence.”
31No exception was taken by either party to the above aspect of the charge.
The submissions on behalf of Mr Terceros
32Leading Counsel for Mr Terceros submitted, based upon a number of aspects of Mr Terceros’s evidence, “that to the extent that there was inattention or inadvertence, it was excusable so as to render any contributory negligence inapplicable”.[18]
[18]T688
33Further, Leading Counsel for Mr Terceros submitted that Allen Foundry focussed its criticism upon Mr Terceros changing his account of the circumstances of his fall rather than on Mr Terceros’s “own particular conduct”. Leading Counsel submitted that:[19]
“… the criticism of the plaintiff’s failure to maintain his grip on the ladder by reference to an initial claim which was wrapped up in paragraphs 7, 8 and 9(g) of the originally prepared statement of claim, to the effect that the plaintiff was alleging that because the extension stiles were not there, he was somehow gripping something that wasn’t there, and that that somehow contributed to his fall.
… of course it was a change. But the focus became, in my submission, credit based on the change of the case from the complaint that the extension stiles were not in existence, and therefore that somehow led to a grabbing of extension stiles or rails that weren’t there, to the plaintiff’s pleaded and repleaded case, and the case he gave in evidence, which is that he failed to grip beyond the eighth rail.”
[19]T688-689
34Leading Counsel for Mr Terceros submitted that Mr Terceros’s Answer to Interrogatory 10 was ambiguous, and “his evidence did then clarify the rail he is referring to that he was not able to grip was in fact – if I can call it the invisible ninth rail, the fresh air rail that was immediately, he thought, above the eighth rail.”[20]
[20]T690
35It was submitted that the evidence adduced from the plaintiff negated contributory negligence.[21]
[21]T690
36It was submitted that it was not open to the jury to find other than that Mr Terceros was climbing the ladder quickly.[22]
[22]T692
37Leading Counsel accepted that it was open to the jury to find that the plaintiff reconstructed the circumstances of the accident.[23]
[23]T701-702
38Leading Counsel for Mr Terceros accepted that it was open to the jury to find that Mr Terceros was not looking where he put his hands. It was submitted that this did not permit a finding of contributory negligence in circumstances where he had not been trained or inducted in climbing ladders, and believed he had to climb the ladder quickly. In the circumstances, it was submitted that his acts or omissions amounted to mere inadvertence, inattention or misjudgement.
39Effectively it was submitted that the jury was bound to find that Mr Terceros was guilty of excusable inattention, misjudgement or the like.
40Leading Counsel submitted that the issue of contributory negligence is to be approached on the basis that the employer had failed to discharge its obligations, and Mr Terceros was captive to the system of work:[24]
“… when the negligence of the employer caused the risk and the plaintiff in this case walks into the risk, or falls into the risk, or falls off the risk.
And sure, it is causably by his own doing in part, but it is to be excused. …
[24] T712-713
… it’s very difficult to see where the evidence of the fall can be attributed to the plaintiff in a legal blameworthy sense in all of those circumstances. …”
41I understood the submission to be that in context, the jury was bound to find that the plaintiff’s role in the happening of his fall amounted to temporary inadvertence, misjudgement or some taking of risk that was excusable because it was nonetheless the conduct of a reasonable and prudent person.
The submissions on behalf of Allen Foundry
42Senior Counsel for Allen Foundry submitted this issue must be determined on the evidence most favourable to the defendant.
43The Court should only disregard the jury’s verdict in the clearest of cases, and the finding of sixty-five per cent contributory negligence augured against that proposition.
44In finding negligence, the jury appear to have accepted the propositions that Mr Terceros was not trained, was unfamiliar with the ladder and the like.
45The jury did not find a breach of the Occupational Health and Safety Regulations 2017, thus rejecting the proposition that the fixed ladder was not fit for purpose and not set up correctly.
46Senior Counsel submitted that it was open for the jury to reject Mr Terceros’s suggestion that he felt required to hurry up the ladder. During examination-in-chief he had used the word “slow” in relation to his ascent.[25]
[25] T72 and T717
47It was open to the jury to reject Mr Terceros’s account of the circumstances of his fall, given the way in which his case changed after receipt of the expert report.
48It was open to the jury to find that Mr Terceros could not explain how he missed taking hold of the handrails and to find he was careless.
49It is a question of fact for the jury whether Mr Terceros’s conduct amounted in context to excusable inadvertence, inattention or misjudgement or contributory negligence.
Reasons
50Taking the defendant’s case at its highest, I am not satisfied that the plaintiff has established that there was no evidence upon which a reasonable jury, properly directed, could make a finding of contributory negligence.
51First, by not finding the Occupational Health and Safety Regulations case proven, the jury rejected the contention that the fixed ladder was not fit for purpose and not set up correctly.
52Second, in accepting the case on negligence, the jury have implicitly accepted that Allen Foundry failed to instruct or train Mr Terceros to climb ladders.
53Third, questions of which evidence to accept or reject were exclusively for the jury to determine. It was open to them to accept parts of Mr Terceros’s evidence and reject other parts.
54Fourth, on a view of the evidence most favourable to the defendant, it was open for the jury to find:
(a) The ladder had been in place in its current form since the mid-1980s;
(b) There had been no prior fall from the ladder;
(c) The means of climbing a ladder was a matter of common sense;
(d) Mr Terceros was not climbing the ladder quickly;
(e) Mr Terceros took both hands off the ladder;
(f) Mr Terceros was not sure how he came to fall and had reconstructed the circumstances of his fall;
(g) Mr Terceros had given conflicting accounts of the reason he fell.
55Fifth, the Court should only disregard the jury’s verdict in the clearest of cases, and this case does not reach that level.
56In my view, there was evidence upon which the jury could conclude that, viewed in context, Mr Terceros failed to exercise reasonable care for his own safety.
Conclusion
57The plaintiff’s application for judgment notwithstanding the jury’s verdict on Questions 4 and 5 is dismissed.
58I will hear the parties further regarding the orders to be made in accordance with the jury’s verdict.
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