Wood v John Danks
[2014] VSCA 196
•4 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0177
| BARBARA WOOD |
| v |
| JOHN DANKS PTY LTD (ACN 004 037 049) |
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| JUDGES: | ASHLEY, WHELAN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 July 2014 |
| DATE OF JUDGMENT: | 4 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 196 |
| JUDGMENT APPEALED FROM: | Wood v Danks (Unreported, County Court of Victoria, Judge Morrish, 22 November 2013) |
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ACCIDENT COMPENSATION — Workplace injury — Jury Trial — Finding of contributory negligence — Whether finding open upon the evidence — Open to conclude appellant failed to keep a proper look out — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr N R Bird with Mr J J Fitzpatrick | Ryan Carlisle Thomas |
| For the Respondent | Mr M F Wheelahan QC with Mr M J Hooper | Wisewould Mahony |
ASHLEY JA:
I have had the advantage of reading in draft the reasons of Whelan JA, and I respectfully agree with them. They necessarily reflect the appeal as it was conducted, not as it might have been conducted. Nonetheless, for the reasons which follow, I am somewhat troubled that, albeit for practical reasons, the appeal was conducted in the way that it was.
The competing cases at trial as to the circumstances in which the appellant suffered injury were, on the one hand, her evidence that she entered the aisle first, and was intent upon her task when Mr Agar, having entered the aisle later on, backed into her; and, on the other hand, the evidence, particularly of Mr Spiteri, that Mr Agar entered the aisle first, and was at his work there when he was passed by the appellant, who then stopped not far from him. Simplistically, the argument focused upon the question – who entered the aisle first? If the appellant entered the aisle first, circumstances which would have called into play her failure to give the warning of presence which the workers customarily gave did not arise. It was otherwise if the evidence adduced for the respondent was accepted.
There was, however, an obvious alternative to the black and white situation advanced for the respective parties. It was that Mr Agar had entered the aisle first, but that the appellant, intent upon her task, failed to see him. That raised the possible explanation of momentary inattention or inadvertence on her part, which might have been, but was not necessarily, contributory negligence.
The judge gave an entirely conventional direction in this connection. Thus:
First, you might conclude that momentary inattention or inadvertence on the plaintiff’s part or inattention bred of familiarity by a repetitive nature or system of work though contributing to her suffering injury, does not amount to contributory negligence in all the circumstances, but you would not be prohibited from reaching a contrary conclusion.
After the jury had deliberated for some time, it sought the judge’s answer to a question. That question, and the judge’s answer, were as follows:
Your question is, ‘There is some confusion in the jury as to the implications of what momentary inattention means in regards to negligence?’. Look, it seems to me it has absolutely no application in this case, it’s not an issue in this case. I gave you the direction. It was probably irrelevant to give you that direction based on the way the case has been run.
Please put it out of your minds, it really has no role to play in this case for either side.
The judge gave that answer after some discussion between her Honour and counsel. In that discussion, counsel for the appellant had indicated the potential relevance of the question to the issue of contributory negligence. But after the redirection, he took no exception.
The judge had directed the jury, correctly, that in determining the practical content of the employer’s duty of care, and whether it had breached that duty, it must take account of the possibility that an employee may be momentarily inattentive, or distracted, or even negligent in performing his or her work. But the jury’s question seems very likely to have been addressed to the appellant’s conduct, and thus to the issue of contributory negligence.
As the trial had been conducted, momentary inattention or inadvertence on the part of the appellant had not been in issue. Her Honour was strictly correct to express herself in the language noted at [5] above. But it was for the jury to decide what was to be made of the competing evidence, whether the appellant’s account was incorrect but explicable by reason of momentary inattention or inadvertence, and what were the consequences with respect to contributory negligence in that event. The jury, then, was left in the situation where, having at first been directed with respect to momentary inattention or inadvertence, it was then told, in effect, that the direction was meaningless in this case.
The issue of possible misdirection was not raised by the notice of appeal. It was, however, raised by the Court in the course of the hearing. Counsel for the appellant declined to take the matter up. His reluctance to do so was, I consider, explicable, and justifiable, for one and perhaps two practical reasons, neither of which have anything to do with legal principle.
First, had the appeal succeeded, the consequence must have been that the finding of contributory negligence should be set aside, and judgment entered for the gross amount of the jury’s damages verdict. But if there had been a material misdirection, it must have resulted in an order for a new trial. The outcome of a new trial would have been unpredictable. The circumstances in which the appellant suffered injury were hotly contested, and the appellant’s injury was the aggravation of a pre-existing condition. An adverse verdict, or a verdict for a smaller amount than the verdict originally returned, would have been on the cards.
Second, it seems at least possible that one of the reasons for pursuing the appeal was that, in consequence of the finding of contributory negligence, judgment was entered in an amount which had the consequence that the appellant obtained no order for costs at the end of a long trial.[1] If the appeal had succeeded, that costs outcome, I infer, might have been avoided. But it is sensible that the risks and the cost of a new trial would not be entertained simply in order to rescue the costs consequences which ensued from the judgment entered for the appellant.
[1]Accident Compensation Act 1985, s 134AB(28)(d).
WHELAN JA:
The appellant, Ms Wood, was employed as a ‘picker and packer’ by the respondent (‘Danks’) at its warehouse in Braeside. Her duties required her to move up and down aisles in the warehouse, pushing a trolley, and filling orders from products stacked on shelving. Some of those products were on pallets. She was also required to complete paperwork as she filled the orders and her trolley was designed in a way which enabled her to do that. Other employees, referred to as ‘replenishers’, had the task of restocking products on the shelving as they ran out. Amongst other things, this required them to replace empty pallets from time to time.
On 17 June 2004 Ms Wood and one of the replenishers’ supervisors, Mr David Agar, bumped into each other, bottom to bottom, in one of the aisles.
Ms Wood had a pre-existing back condition. The impact with Mr Agar caused her to suddenly go from a stooped position over her trolley to an upright position. Ms Wood claims that this caused a significant injury to her back.
Ms Wood brought proceedings in the County Court alleging negligence by Danks. Danks denied negligence and alleged contributory negligence. After a trial, a jury found Danks negligent, assessed Ms Wood’s damages at $80,000, and reduced her damages by 20% for contributory negligence.
Ms Wood now appeals on the sole ground that the jury’s finding on contributory negligence was not open upon the evidence.
Matters not in issue
Before turning to a review of relevant aspects of the trial and the evidence, it is necessary to set out some matters which are not in issue on this appeal.
It is not contended that contributory negligence was not open either because Ms Wood was doing what the employer’s system required, or because her conduct which was said to constitute contributory negligence amounted to mere inadvertence, inattention or misjudgement. This was made clear in the course of oral submissions by Ms Wood’s counsel on the appeal. Thus, whilst the written submissions on behalf of Ms Wood refer to inadvertence and misjudgement, and whilst reference was made in the course of submissions to this Court’s decision in Kulczycki v Metalex Pty Ltd (‘Kulczycki’),[2] those issues, and those aspects of the judgments in Kulczycki, are not in issue in this appeal.
[2][1995] 2 VR 377.
Review of relevant aspects of the trial and the evidence
The plaintiff’s evidence was that she was stooped over her trolley writing, for a period which she estimated at three minutes, when she was hit from behind by Mr Agar. She said that the force of that impact made her go suddenly from a stooped position to an upright position. She said she had not seen Mr Agar prior to the impact. She was also asked about a replenisher named Jason Spiteri. She said she had not seen him either. The plaintiff said that the workers had adopted a practice amongst themselves of alerting others to their presence when they passed them in the aisles by saying something such as ‘I’m coming past’.
The existence of the practice of alerting co-workers when passing them in the aisles was emphasised during Ms Wood’s cross-examination. She also agreed in cross-examination that she had seen ‘the replenishment people’ working in the past and she agreed that sometimes they would remove empty pallets physically with their hands.
In cross-examination it was put to Ms Wood that a replenisher, Mr Spiteri, had been proposing to replace a pallet, that he had had a loaded replacement pallet on a pallet jack at the head of the aisle, that Mr Agar had gone into the aisle to remove the empty pallet for Mr Spiteri, that she had gone past Mr Spiteri and entered the aisle after Mr Agar, and that the impact had occurred after she had passed Mr Agar, without warning him of her presence, when he removed a pallet and dragged it a short distance backwards before bumping into her, bottom to bottom. The plaintiff maintained in response that neither Mr Agar nor Mr Spiteri were present in or near the aisle when she entered the aisle.
The plaintiff called a co-worker. Amongst other things, she confirmed the existence of a practice whereby those moving up and down the aisles alerted each other to their presence.
Mr Spiteri was called by Danks and he gave an account of the accident which, while not being entirely consistent, broadly accorded with what had been put to Ms Wood. He also said that there was a practice among the pickers and replenishers of alerting each other to their presence. In cross-examination when asked whether this was merely a courtesy he said that it was ‘definitely a safety function’.
Mr Agar gave evidence that the accident occurred after he had removed an empty pallet and dragged it a short distance backwards ‘anywhere up to two and a half metres’. He did not see Ms Wood prior to the accident. He was not alerted to her presence. He was not asked about the practice of employees alerting each other to their presence in the aisles.
In final submissions counsel for the defendant submitted that they should accept the account of the incident given by Mr Spiteri and that there had been no negligence by Danks. Counsel emphasised the practice of employees warning each other and relied upon Ms Wood’s evidence that she was stationary writing at the time of the impact. It was put to the jury that there had been a failure to warn on two occasions, once as she went past and again when she stopped in Mr Agar’s vicinity. It was submitted that if the jury did not find the incident was entirely the fault of the plaintiff she ought to bear a ‘very heavy proportion of the blame for what occurred’.
Counsel for Ms Wood in final address on the issue of contributory negligence submitted that ‘there is not an ounce of fault on her part’.
Relevant factual assumptions for the purpose of the appeal
It was accepted by Ms Wood’s counsel that on this appeal this Court must proceed on the basis that the jury took the most favourable view of the evidence to Danks which a reasonable jury could take.
It seems to me that the most favourable view of the evidence for Danks was as follows:
·Mr Agar was in the aisle before Ms Wood entered it.
·Mr Agar did not see Ms Wood at any stage as he was preoccupied with the pallet he was removing.
·Ms Wood saw Mr Agar. I accept the submission made on behalf of Danks that this was an inference open to be drawn given the evidence that Mr Agar entered the aisle before Ms Wood and that she passed him in the aisle.
·Despite having seen Mr Agar, Ms Wood said nothing to alert him to her presence.
·There was a de facto system amongst the employees whereby they did alert each other to their presence in the aisles.
·Ms Wood knew that on occasions the replenishers removed empty pallets manually.
·Ms Wood moved past Mr Agar and then stopped no more than two and a half metres from where Mr Agar was manually removing a pallet.
·Mr Agar pulled out the pallet and moved backwards no more than two and a half metres and came into contact, bottom to bottom, with Ms Wood who was stooped over her trolley.
Submissions
The appellant submitted that the jury verdict on contributory negligence was not open because Mr Spiteri’s evidence on crucial factual issues was contradictory and unreliable, because there was no direct evidence that the system whereby employees warned each other was anything other than a practice adopted for the benefit of the employees and was not a measure adopted by the employees to protect themselves, because it was not reasonably foreseeable on the evidence that Mr Agar would act in the way he did, and because Ms Wood had no obligation to warn of her presence and no reason to foresee the possibility of Mr Agar manually removing a pallet and walking backwards with it causing him to come into contact with her. Reliance was placed upon the fact that Danks had had no relevant system of work in place to guard against such an incident, and it was submitted that if the employer had had no regard to these issues an obligation to guard against it should not be imposed on the employee.
Counsel for Danks submitted that the issue was a factual one upon which the jury had come to a conclusion which was reasonably open to it.
Analysis
It seems to me that Danks’ position is correct.
It was open to the jury to conclude that Ms Wood did have reason to anticipate that Mr Agar would remove the pallet in the way in which he did and that she acted in disregard of a de facto system of warning adopted by the employees when moving past each other in the aisle. It was also open to conclude that she had failed to keep a proper lookout. Given the constraints imposed by the inherent inscrutability of a jury’s verdict, it is impossible to conclude that a finding of contributory negligence was not open.
In the circumstances the appeal must be dismissed.
SANTAMARIA JA:
I agree with Whelan JA.
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