Viselka v ABB Daimler Benz Transport (Aust) Pty Ltd
[2000] VSCA 105
•9 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 5856 of 1999
| VLADIMIR VISELKA | Appellant | |
| v. | ||
| ABB DAIMLER BENZ TRANSPORT (AUST.) PTY.LTD. | Respondent | |
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JUDGES: | PHILLIPS, CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 March 2000 | |
DATE OF JUDGMENT: | 9 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 105 | |
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NEGLIGENCE – Master and servant – Duty of care – Safe system of work – Employer's duty to provide – Electrician injured while working on live switchboard – Whether required to do so – System departed from by injured servant – Whether needless or inadvertent act – Whether finding of contributory negligence open – Apportionment.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. M.J.L. Dowling, Q.C. | J.N. Zigouras & Co. |
| For the Respondent | Mr. J. Ruskin, Q.C. Mr. N. Murdoch | Dunhill Madden Butler |
PHILLIPS, J. A.:
I agree in the judgment of Charles, J.A.
CHARLES, J. A.:
This is an appeal from a judgment given in the County Court on 25 May 1999 on a claim by the plaintiff-appellant against the defendant, his employer, for damages for injuries sustained when an accident occurred while he was working. The appellant is an A-grade electrician and on 15 July 1995 he was working on a switchboard carrying more than 400 volts. The switchboard was live at the time and as a result of the accident the appellant's right hand was badly burned by electricity. The appellant's principal claim is that the defendant was negligent inter alia in requiring him to work, inadequately supervised, on a live electrical switchboard.
The proceeding was commenced by writ on 5 February 1998 and came on for trial in the County Court at Melbourne before a judge and jury on 11 May 1999. At the beginning of the second day the jury's fees were not paid, and thereafter the trial proceeded before judge alone. After a trial lasting five days judgment was reserved, and on 26 May judgment was given for the appellant in the sum of $209,658 together with damages by way of interest at $7,835 and costs to be taxed on County Court Scale D. The judge determined that though the defendant had been negligent, the appellant had been guilty of contributory negligence by reason of which the damages otherwise awarded should be reduced by one-third.
From that judgment the appellant has appealed contending, according to his notice of appeal, that the finding of contributory negligence was not reasonably open on the evidence and alternatively that the apportionment should have been more favourable to him.
The appellant is a 42 year-old married man. He was employed by the defendant from 24 August 1987 until the end of 1997. In 1976 the appellant had commenced an apprenticeship as an electrical fitter, and in 1980 obtained a certificate of completion of the theoretical component for an A-grade electrician's licence. From the time when the appellant was first taken on by the defendant in August 1987, his employment had involved no work constituting the practical experience necessary to obtain such a licence. Although in 1990 the appellant obtained his A-grade licence, even at trial he claimed that he still had not had the practical experience necessary to justify the granting of such a licence.
The appellant's work with the defendant until 1991 involved electrical fitting, and from 1991 until early 1995 he was employed by the defendant as a tester of electrical components on trains and trams. If there were faults, power would be switched off and a re-connection made after the fault was corrected. In early 1995 the defendant's testing contract terminated and the appellant was then deployed in the production department inserting conduits for electrical cabling in trains.
On 2 March 1995 the appellant was summarily retrenched, but was reinstated on 10 March, returning to work in the production department. He then moved to the maintenance department, there being a difference in the evidence in that he said that this took place three days before 15 July 1995, but according to the respondent it was two weeks prior to that date. The appellant's foreman in that department was one Geoffrey McLeod.
On or about Thursday 13 July 1995 McLeod instructed the appellant to run and connect electric cabling from an outlet for a 3-phase hoist in the "stretch-former" or "bending" machine shed some 40 to 50 feet away to a switchboard. The cable was to be run through a duct in the top right-hand side of the switchboard. According to McLeod the appellant was instructed that when it was necessary to turn the power off, he should come and see him. McLeod said in evidence that he would leave it to the discretion of the employees he was directing as to when the power was to be turned off. McLeod's evidence was that he instructed the appellant to introduce this cabling from the right-hand side, and then take it down the right-hand side of the switchboard to the appropriate circuit-breaker which was on the right side of the switchboard. The earth cable then had to be run across the bottom and up the left side of the switchboard to the earth bar. The switch to turn off the current to the switchboard was in another building, and only by use of this switch could the switchboard be isolated. The appellant had been instructed to do as much of the cabling as he could before having the power switched off because cutting off the power would interrupt the running of the stretch-former machine. The appellant performed and completed the cabling of the 3-phase hoist successfully without making any request that the power being switched off.
McLeod then instructed the appellant to connect the cabling from a telephone light in the stretch-former shed to the same switchboard as before. Before giving the appellant these further instructions, McLeod was aware that the appellant had completed the previous task without having had the power to the switchboard turned off. McLeod knew that the appellant was an A-grade electrician, but was not aware of the appellant's claim to only limited experience in dealing with live circuit-boards. Again the appellant did not request that the power to the switchboard be interrupted while he introduced the telephone cabling into it, but whilst the appellant was connecting the telephone cable into the switchboard there was a shorting which caused the appellant's injuries. The appellant said in evidence that he was at that time trying to pull cabling through the duct at the top right side into the switchboard. The cabling for the telephone connection was thinner than the cabling for the hoist and was more difficult to pull through the duct. The appellant was using long pliers in his attempt to pull the cabling through. He thought that the best way to have connected the cabling to the left-hand side circuit-breaker was along the top and down the left-hand side.
McLeod, who was about 100 metres away at the time of the accident, said that he believed on the basis of an arc mark in the switchboard that the shorting had possibly occurred by contact with a screwdriver or a pair of pliers, brought about from trying to run a cable across the top between the bus bars and the backing frame of the switchboard. Barry Cann, another employee of the defendant whose function it was to investigate the accident, believed that a tool which had been used to hold the earth wire to pull it behind the bus bars had made a connection in the 10-millimetre gap between the bus bars and the frame of the switchboard.
Before turning to the arguments I should mention that when the matter was first called on before this Court, counsel for the appellant applied orally and without notice to amend the notice of appeal to introduce a new ground claiming that there were terms of the appellant's contract of employment with the defendant, together with breaches thereof causing injury loss and damage, to which a defence of contributory negligence was no answer. By the proposed ground, the appellant sought to rely on the decision of the High Court in Astley & Ors v. Austrust Ltd.[1], where a majority of the Court held in a case involving professional negligence that under the apportionment legislation there in issue (s.27A(3) of the Wrongs Act 1936 (SA)[2]), an award of damages for breach of contract may not be reduced for contributory negligence, whether or not the appellant has or could also have sued in tort.
[1](1999) 197 C.L.R. 1.
[2]Which is comparable with, but not in the same terms as, s.26 of the Wrongs Act 1958 (Vic).
Judgment in Astley was handed down on 4 March 1999. At the trial of this action in May 1999, the appellant's counsel did not seek to rely on Astley, nor was it argued that the defence of contributory negligence did not lie to a claim in contract. In this Court, the appellant's counsel accepted that this issue had not been raised at trial, but submitted that the proposed ground merely reflected the law as laid down in Astley, and did not depend upon the evidence or any finding of fact. The Court granted an adjournment to enable the parties to make submissions upon the appellant's application to amend. Written submissions were duly filed by both parties and, when the hearing of the appeal was resumed, the Court refused leave to amend: see Coulton v. Holcombe[3]; Geelong Building Society (In Liq) v. Encel[4]; Masters v. McCubbery[5]. It is unnecessary now to canvass the arguments that were put in this regard. I simply note that the appellant did not plead a case in contract at all distinctly[6] and certainly he did not pursue a case in contract at trial; and the defendant submitted that it had changed its position in a variety of ways in consequence of the manner in which the case had been pleaded and run at trial. The Court was of opinion that in all the circumstances it was not in the interests of justice to permit the appellant to rely upon the new point.
[3](1986) 162 C.L.R. 1, 7-8.
[4][1996] 1 V.R. 594, 608.
[5][1996] 1 V.R. 635, 658.
[6]Paragraph 6 of the statement of claim, which referred to the contract of employment, went only to proximity rather than to setting up a contractual cause of action.
At the resumed hearing of the appeal, the appellant's first argument was that it was not open to the trial judge to find contributory negligence as he did, and that the judge had merged two separate operations in arriving at his challenged findings. The appellant submitted that McLeod's evidence was that he gave no specific instructions as to connecting the cable from the telephone light to the switchboard, telling the appellant "just to go ahead and do it". Counsel submitted that the judge had failed clearly to distinguish between the two operations and that McLeod's directions to the appellant as to the manner in which the cable should be threaded in the switchboard, that is, to run the cable down the right-hand side of the switchboard, together with a direction to come to him when he needed the power turned off, related only to the first operation (for the 3-phase hoist), not to the second operation, connecting the telephone light. It was put that the fact that McLeod knew that the appellant had not had the power turned off in relation to the first operation meant that there was tacit approval for the appellant to carry out the second operation on a live switchboard. It was submitted that it was an unjustified leap to argue that the appellant's carrying-out of the second operation was governed by the earlier instruction; the task was on any view a very dangerous one, and in these circumstances what the appellant did should not have amounted to contributory negligence.
In considering this argument it is important to bear in mind at the outset that the judge did not accept the appellant's version of how the accident happened, preferring instead the evidence of the defendant's witnesses. The appellant's evidence had indeed been that he needed the power switched off so that he could connect up the cables into the switchboard and accordingly spoke to McLeod, the foreman, asking that this step be taken. According to the appellant, McLeod refused, saying that the power could not be switched off because production had to be continued and would fall behind, everything being in sequence, if it was shut off. This was denied by McLeod. His Honour said as to this evidence –
"The plaintiff asserts that at some stage he asked the supervisor, Mr. McLeod, for the power to be turned off so as to isolate the board (and thus make it safe to work on) whilst he was connecting the wires to the board. He says that Mr. McLeod refused, telling him to connect them live, 'I'd be all right'. Mr. McLeod, however, says that he told the plaintiff amongst other things to "run the cable into the board through ducts on the right-hand side and then when the power needs to be turned off for connection into the board to come and see me'. He also said 'As to the necessity to turn the power off, when I am directing people I leave it to their discretion as to how far they should go'. I have been invited to accept the plaintiff's version in preference to Mr. McLeod's. Having seen and heard both men in the witness box, and having considered the reasons (if any) why either of them would not have given a truthful or accurate account of this conversation I am not persuaded that I should accept the plaintiff in preference to Mr. McLeod. It is also significant that the witness, Mr. Cann, who was the Union Health and Safety Officer, but has since been retrenched, said that electricians were not required to work on live switchboards, that there was a choice. At all events the power was not turned off."
Later in his reasons, the judge said that "It will be remembered that McLeod's evidence was that he would have told the [appellant] to run the cables down the right-hand side of the circuit board" and counsel for the appellant submitted that there was no evidence to justify this conclusion. The appellant however gave detailed evidence as to the instructions he was given for wiring the cable into the switchboard for the first operation and his evidence, taken as a whole, would, in my view, have justified the judge in concluding that the appellant saw the carrying out of both operations as a continuum, that is, that the instructions given in relation to connecting up the 3-phase hoist applied equally to the connecting up of the telephone light. I would therefore reject the appellant's first argument.
The second submission for the appellant was that the judge failed to advert to the question whether the appellant was aware that what he was doing was increasing the risk of injury to himself. The argument ran that even if the appellant's evidence as to how the accident occurred was not accepted, there was still no evidence to show that the appellant was aware that his actions increased the danger of injury. His practical inexperience, so it was said, in performing the duties of an A-grade electrician would negative any assumption that he would have known that his chosen method of running the earth core exposed him to increased danger of electrocution. This submission, which was not strongly pressed, must fail in light of the appellant's actual evidence, both in chief and under cross-examination, that he realized the danger and was afraid. That the judge rejected part of the appellant's evidence (including that he then asked McLeod for the power to be disconnected) would have been no reason to reject his sworn evidence that he realized the danger involved in what he was doing.
The appellant's third submission had two parts. In the first place it was claimed that the judge had failed to make findings as to a number of particulars of negligence alleged against the defendant. The judge, it was said, had failed to make any finding as to two of the particulars of negligence, particular (c) which alleged a failure to instruct the appellant properly or at all as to the manner in which he should perform his work, and particular (h), which alleged failing to isolate the switchboard prior to the appellant working thereon. It was argued that before one could determine whether there had been contributory negligence on the part of the appellant, it was necessary to examine all of the defendant's conduct. If the defendant had, by its conduct, exposed the appellant to the very risk that he had encountered, then the appellant could not be guilty of contributory negligence unless he had acted in a deliberate manner, taking no precautions for his own safety. A reasonable employer, so it was said, was obliged to instruct its employee as to the manner in which he should perform his work, certainly when the work was as dangerous as threading cable into a live switchboard. Here, so the argument ran, there was some evidence of an instruction being given to the employee, but no evidence that he was properly instructed and no evidence as to supervision. Accordingly the appellant was exposed to an unnecessary risk of injury. The argument continued that the defendant's breach of duty was the more serious because of the inherent dangers of the task allotted, the appellant's claimed inexperience in performing such work, his newness to the maintenance department and the foreman and the pressures caused by the demonstrable uncertainty of the appellant's continuing employment with the defendant. Accordingly it was argued that even if the defendant did not, through McLeod, refuse a request by the appellant that power to the switchboard be shut off, the employer could not in effect rely on the capacity of the employee to decide when power should be switched off.
It is, of course, the employer's duty to take reasonable steps to avoid unnecessary risk of injury to the employee. Frequently the work an employee is required to undertake will involve danger and the risk of serious injury. If an employee is injured in these circumstances, and contributory negligence is alleged, a question will often arise whether the employee's failure to act in a particular way is to be characterized as mere inadvertence or amounts to negligence: McLean v. Tedman[7]. Windeyer, J. observed in Sungravure Pty.Ltd. v. Meani[8] that –
"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."
[7](1984) 155 C.L.R. 306 at 315.
[8](1964) 110 C.L.R. 24 at 37.
As Ashley, J. said in Kulczycki v. Metalex Pty. Ltd.[9] –
"Where an employer is in breach of a duty of care owed by it to its worker and contributory negligence is alleged it is necessary to differentiate between contributory negligence on the one hand and mere inadvertence, inattention or misjudgment not amounting to negligent conduct on the other."
The risk that an employee's "inadvertence, inattention or misjudgment" may give rise to injury, will usually fall within the scope of the employer's duty to provide a safe system of work: Perri v. Department of School Education Victoria[10]. As Mason, Wilson, Brennan and Deane, JJ. said in McLean v. Tedman[11] –
"[I]t is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent or negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence .... The employer is not exempt from the application of this standard vis-à-vis his employees .... [T]he possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."
[9][1995] 2 V.R. 377, at 410. His Honour was in dissent, but not on this point.
[10][1998] 1 V.R. 591, per Winneke, P. at 597
[11]155 C.L.R. at 311-312.
The case made for the appellant was that on all the evidence it was the danger created by the defendant's unsafe system of work which was the cause of the appellant's injury, and that he, as an inexperienced electrician who was concerned about his future with the defendant, was left with no real alternative but to carry on with the job – as the appellant put it in his evidence-in-chief, "He [the foreman, McLeod] seems pretty confident. I'm new to this area. I keep my mouth shut. I'll do it." He later said under cross-examination that he did not refuse to carry on with the work (when he unsuccessfully asked for the power to be disconnected) because he was afraid of losing his job as well. If all this evidence had been accepted, there would have been little room for saying other than that the cause of the appellant's injury was the deficiencies in the defendant's system of work. On this basis it would indeed have been necessary to bear in mind, as von Doussa, J. said in Fennell v. S. & E. Services Holdings[12] that -
"The court should be ever careful not to transfer the blame from an employer or party responsible for ensuring a safe system of work for the protection of the worker to the worker himself by finding that his adoption of an inadequate system amounts to contributory negligence unless the risk of injury arising from that system was clear, and it can truly be said that the worker was foolhardy in attempting to achieve his assigned task in a manner which the inadequate system required."
[12](1988) 47 S.A.S.R. 6 at 17.
On the other hand there is no rule that contributory negligence cannot be found to exist if the defendant, in breach of its duty to ensure a safe system of work, has exposed the appellant to the very danger which caused his injuries. In Astley, Gleeson, C.J., McHugh, Gummow and Hayne, JJ. dealt with this issue[13] in the following terms –
"There is no rule that apportionment legislation does not operate in respect of the contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant's employment. A plaintiff may be guilty of contributory negligence, therefore, even if the 'very purpose' of the duty owed by the defendant is to protect the plaintiff's property. Thus, a plaintiff who carelessly leaves valuables lying about may be guilty of contributory negligence, calling for apportionment of loss, even if the defendant was employed to protect the plaintiff's valuables.
[30] A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered. ... Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."
[13]197 C.L.R. at [29]-[30].
The difficulty which the appellant faces as to this part of his argument is that the judge rejected his version of the events occurring before and at the time he was injured. If the judge accepted the evidence of McLeod in preference to that of the appellant, it followed that the appellant was not complying with the defendant's system of work at all; indeed he was departing from it. On all the evidence it was open to the judge to hold that the appellant had been directed to thread the cable in the switchboard in a particular way, but had instead himself chosen to run the cable across the top of the board. He had also not asked for the power to be switched off, although invited to do so when it became necessary. In these two respects the judge was entitled to find that the appellant had departed from the defendant's system, which he had been expected to follow, and had thus failed to take reasonable steps to protect himself.
Furthermore evidence was given by Clifford John Waldron, an expert witness called by the appellant, that an A-grade electrician could "work on live parts provided he takes the necessary precautions" and that the work in question could have been done without any real danger. Waldron said it was a reasonable risk for work to be done on a live switchboard without turning off the power, "for somebody trained to do it, provided he didn't make the final connection." The judge said as to contributory negligence that what the appellant was doing was very dangerous. His Honour continued –
"After all, despite his lack of experience in wiring boards, he had been involved in electrical work for the greater part of the period since he commenced his apprenticeship in 1976 and continuously since 1987 so that his involvement in electrical work covered most of a period of nearly 20 years. He was a man of mature age, and, one assumes, possessed of ordinary common sense. He must have been well aware of the risks that he was running, bearing in mind particularly the amount of space that was available to him, in working in such close proximity to the live lugs as he must have been according to Cann's explanation of how the accident must have happened. There is no suggestion that he consulted McLeod about whether that was an appropriate course to follow. Cann agrees that the proper method of connecting up that earth wire was to run it down the right-hand side of the board, across the bottom of the board and up the left-hand side. No reason has been advanced in the evidence to explain why the plaintiff could not have done that. It will be remembered that McLeod's evidence was that he would have told the plaintiff to run the cables down the right-hand side of the switchboard.
Later his Honour said –
"In reaching the conclusion that the plaintiff was guilty of contributory negligence I have borne in mind the plaintiff's obligation to do his job. I consider that what he did went far beyond mere inattention or inadvertence, whether or not bred of familiarity or repetition, the urgency of the task, his preoccupation with the matter in hand or any other prevailing conditions. I am quite satisfied that what he did went far beyond the taking of a risk which was excusable in the circumstances because the taking of such a risk was something that might occur in the conduct of a reasonable and prudent man. As I have found it amounted to contributory negligence."
In my view his Honour was justified in finding the appellant guilty of contributory negligence in this way. In terms of the approach taken by von Doussa, J. in Fennell[14], "The worker was foolhardy in attempting to achieve his assigned task in the manner" he chose to employ. Alternatively as Jacobs, J. put it in Commissioner for Railways v. Halley[15] –
"If an employee is required by the nature of his employment to expose himself to some dangers but not to others, the employee is not shown to be guilty of contributory negligence simply by exposing himself to a situation which he knew or ought to have known was dangerous, or even highly dangerous. It must also be shown that he knew or ought to have known that it was not expected of him that he would expose himself to that danger."
[14]47 S.A.S.R. at 17.
[15](1978) 20 A.L.R. 409 at 415.
The test proposed by Jacobs, J. above was, in my view, met in this case and accordingly no error is shown in the reasons given by his Honour for arriving at the conclusion that the appellant was guilty of contributory negligence.
The second part of the appellant's third argument was that the judge only made findings as to particulars (a), (d) and (g) of the particulars of negligence, then saying that it was unnecessary for him to deal with the other particulars. There were in fact some 13 separate particulars set out under the paragraph alleging negligence in the statement of claim. The appellant relied on Podrebersek v. Australian Iron & Steel Pty. Ltd.[16], where Gibbs, C.J., Mason, Wilson, Brennan and Deane, JJ. said –
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage. ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any importance."
The appellant argued that in failing to make any finding as to the remaining particulars of negligence, the judge deprived himself of the opportunity of assessing the whole conduct of the defendant and thus prevented a comparison being made of the culpability of appellant and defendant.
[16](1985) 59 A.L.J.R. 492 at 494
The only argument pressed for the appellant in relation to this aspect of the case related to the judge's failure to make findings specifically as to particulars (c) and (h) which have already been mentioned. It was, I think, accepted in argument, that as to the remaining particulars there was either no evidence to support them or they were properly to be regarded as particulars of particulars on which his Honour did make findings.
In my view there is nothing in this point. A careful reading of the judge's reasons shows that his Honour was very well aware of the appellant's claim that he had not been properly instructed as to the manner in which he should perform his work. The judge expressly found that the appellant "should have been properly instructed in the manner in which he should perform his work" (particular (c)). His Honour made repeated findings as to the dangers involved in the appellant working on a live switchboard and found also that it was unreasonable for the defendant not to have adopted a method of insulation of the lugs in the switchboard or some other similar method of insulation before the accident occurred (particular (h)), not least because since the accident the defendant had done precisely this. In my opinion his Honour treated the omissions alleged in particulars (c) and (h) as particulars of those particulars on which he made express findings, and thus included them in his assessment of the whole conduct of the defendant.
Furthermore the judge was plainly alive to the necessity for him to apportion responsibility between appellant and defendant by making a comparison of the whole conduct of each negligent party in relation to the circumstances of the accident. His Honour quoted the relevant portion of the judgment in Podrebersek in which the correct test is set out, before stating what he found to be the appropriate apportionment. In my view his Honour is not shown to have erred in failing to take into account any aspect of the defendant's negligent conduct established in evidence in accordance with the particulars.
The appellant's final argument was that the judge had erred in his apportionment of the responsibility of each party for the appellant's injury. It was accepted that a judge's apportionment is not easily disturbed on appeal, but it was submitted that in all the circumstances it was neither just nor equitable to assess the appellant's share of the responsibility as being one-third. Reliance was placed on Indigo Shire Council v. Pritchard[17] and Bus v. Sydney County Council[18].
[17][1999] VSCA 77, at [29] to [31].
[18](1989) 167 C.L.R. 78, 90.
In the judge's careful reasons, his Honour dealt at length with the knowledge, experience and conduct of the appellant and, I think, with every issue which on the evidence could have amounted to negligence on the part of the defendant. The judge had the advantage of seeing the appellant and the defendant's witnesses in the witness box. In my view no error is shown in his Honour's apportionment of responsibility.
I would accordingly dismiss the appeal.
CALLAWAY, J. A.:
I have had the advantage of reading in draft the reasons for judgment prepared by Charles, J.A., with which I agree.[19]
[19]In the sense explained in R. v. J. (No. 2) [1998] 3 V.R. 602 at 634 fn. 1 and R. v. Howarth [2000] VSCA 94 at [16]. I do not, for example, resile from Brown's Valve Service Pty. Ltd. v. Christina [1997] 1 V.R. 536 at 537-539.
As his Honour records, the Court refused leave to amend the grounds of appeal. I joined in that refusal because, in my opinion, the amendment would have effected a very substantial change to the way in which the case had been conducted until then in circumstances in which such a change would have been unfair to the respondent. To the authorities to which reference is made in [12] may be added the recently reported decision of the New South Wales Court of Appeal in Multicon Engineering Pty. Ltd. v. Federal Airports Corporation[20].
[20](1997) 47 N.S.W.L.R. 631 at 645-647. See also Fry v. Oddy [1999] 1 V.R. 557 especially at [75-76].
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