Agresta v Agresta and Anor [2002] VSCA 23

10. The firstnamed respondent, whom I shall call "the defendant", owned and occupied a dwelling house in Footscray. He wished to construct a rear verandah to the house and for this purpose enlisted the aid of his older brother, the appellant, whom I shall call "the plaintiff", to help him dig a dozen holes for verandah posts, using a post-hole digging machine hired by the defendant. Six months earlier the defendant had hired a like machine to dig holes for the posts of the front verandah at the house. That was his first experience of the machine. His next experience was on 15 November 1996 when the defendant and his brother-in-law dug six holes for the rear verandah posts. On the following day the plaintiff took the place of the defendant's brother-in-law.

13. The post-hole digging machine consisted of a drill bit surmounted by two large handles in the shape of triangles opposite each other. Above the handles was an internal combustion engine which rotated the drill bit. A throttle lever was attached to one of the handles. The defendant held the handle to which the throttle lever was attached, while the plaintiff held the other handle.

16. The plaintiff and the defendant dug two holes. In the course of digging the third hole the drill bit jammed. The defendant stopped the motor. He told the plaintiff he intended to try to free the drill bit by starting the motor. The defendant said in evidence that he told the plaintiff to hold on. According to the plaintiff's evidence the defendant said he was to hold on "because there's a chance it would spin around." The defendant started the motor. The plaintiff's evidence was that thereupon the handles and motor swung round the drill bit. He assented to the proposition that "the force of the machine spinning threw [the defendant] away from it and as it continued to spin it hit [the plaintiff] in the shoulder ...." The defendant said:

"[W]e were both holding it at that stage, and that's when I pushed the throttle in and that's what caused the actual chassis to rotate rather than the auger - actual auger bit, which made me lose my balance and let go of the machine."

20. As a result of the blow to his shoulder the plaintiff suffered a disc prolapse in his neck. Two months after the accident a surgeon performed a laminectomy and foraminectomy on the plaintiff's spine at levels C4-5 and C5-6. The plaintiff brought proceedings against his brother in the County Court claiming damages on the ground that the defendant breached the common law duty of care which he owed to the plaintiff.

23. The plaintiff claimed further and in the alternative that the defendant was in breach of the duty as an occupier imposed upon him by the provisions of Part IIA of the Wrongs Act 1958. Section 14B(3) of the Act provides:

"An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises."

27. The defendant claimed against the secondnamed respondent ("the insurer") that he was entitled to indemnity under a policy of insurance issued by the insurer to the defendant in which the insurer had agreed to indemnify the defendant against liability following an accident in respect of which the defendant was required to pay "because you are the owner or occupier of your buildings."

30. The plaintiff's case opened by his counsel was that the defendant acted negligently in releasing his grip on the handle of the machine. Counsel said:

"The case against the defendant essentially is a case in negligence. The gravamen of it is that the defendant let go of the machine at the critical moment, knowing full well the importance of holding the machine himself and its propensity to do what it did - namely spin. The gravamen of our complaint against the defendant is that he let go of the machine ...."

34. The judge who conducted the trial disposed of this case, saying:

"The most likely scenario on the evidence is that in consequence of the acceleration by the defendant of the motor, the handles of the machine spun and pushed the defendant away, causing him to let go. It is common ground that the defendant did not mean to do so. There is simply no support for the proposition that it was simply a case of the defendant ignoring the very instruction he gave to the plaintiff by just letting go in consequence of some careless inadvertence .... The overwhelming evidence is that the defendant was forced to let go in consequence of motive power .... On the case put in the opening, I was not satisfied that the defendant failed to exercise reasonable care in all the circumstances of the case."

38. In his final submissions counsel for the plaintiff advanced two further bases upon which he contended that the defendant was negligent. Neither basis is to be found in the particulars sub-joined to the allegation of negligence in the statement of claim. Counsel for the defendant pointed out the omission. Although no amendment was made to the particulars, the judge entertained the grounds. The first of the additional grounds was that the defendant lost his grip on the handle because he over-throttled the motor. The second was that the use of the motor to dislodge the jammed drill bit was dangerous; the bit should have been dug out by hand, and the defendant should have known that was so.

41. The trial judge held that the plaintiff had established neither of the further bases for concluding that the defendant had been negligent.

44. His Honour said that he was initially attracted to the first of the new grounds "because I had it in my mind at that stage that the revving caused the bit to move suddenly and quickly, with consequent twisting forces on the handle." The defendant had earlier conceded that he had over-revved the motor. He was asked, "When you put the throttle on, you just put it on a bit too hard", and answered: "Quite possibly, yes." In the end the trial judge held that he could not conclude in the absence of direct evidence that the drill bit did move, and further, in the absence of any expert evidence as to the manner in which the machine operated, he was unable to determine whether the over-throttling caused the handles to rotate.

47. The trial judge also rejected the second basis for contending that the defendant had been negligent. He said:

"The further proposition that the defendant should have dug the machine out rather than using the motor in an attempt to unjam it, is at best wisdom after the event. That the defendant should attempt to use the motor was not, in my view, the actions of an unreasonable man in all the circumstances of the case."

51. His Honour held that the plaintiff had not established his claim under Part IIA of the Wrongs Act. He said:

"I am not satisfied that a claim under the Wrongs Act has been established. Paragraph 2 of the statement of claim did not aver, nor did any of the evidence establish that the plaintiff was injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises."

55. Although he concluded that the defendant was not liable to the plaintiff, the trial judge went on to assess the damages in case there was a successful appeal. His Honour said that if he had found the defendant liable, he would have assessed the plaintiff's damages in an amount of $75,000.

58. The plaintiff now appeals against the dismissal of his claim and also contends that the assessment of damages was too low.

61. A second appeal has arisen from the trial judge's disposition of the claim brought by the defendant against the insurer. Again, it was not necessary to determine the claim once the plaintiff's claim was dismissed. His Honour did so, he said, because "it is common ground between the defendant and third party that I should rule on the third party proceedings." He held that the defendant was not entitled to indemnity under the policy of insurance.

64. In my opinion it has not been shown that the trial judge erred in concluding that the evidence did not establish that the plaintiff's injury was caused by negligence on the part of the defendant.

67. Counsel for the plaintiff on appeal submitted that, having found the facts, the trial judge incorrectly imposed upon the plaintiff the onus of establishing negligence. Counsel drew our attention to the trial judge's remark that, "In the end, I am not satisfied that the plaintiff has discharged the onus on the issue of liability." According to the plaintiff's counsel, there is no such onus, because, he said, the question whether negligence is to be inferred from the facts found is a question of law.

70. In my view the trial judge was saying no more than that the plaintiff had failed on a question of fact, namely, that the defendant was in breach of the duty of care which he owed to the plaintiff. The existence of the duty was a question of law; whether the duty was breached was a question of fact. The statement objected to by counsel was preceded by a description of the shortcomings perceived by the judge in the evidence led on behalf of the plaintiff. I think that the trial judge meant that the plaintiff had failed to establish that a breach of duty had occurred.

73. The plaintiff's principal argument on appeal was that the trial judge erred in concluding that the defendant was not negligent. Counsel for the plaintiff submitted that although this Court must give full weight to the trial judge's decision, recognizing the advantages he enjoyed in conducting the trial and seeing and hearing the witnesses, we should conclude that the facts found by the trial judge and the facts not in dispute showed that his decision was in error, and we should give effect to our own judgment.[1]

76. There was evidence that the defendant knew that the machine might spin if it was not held. According to the plaintiff he was instructed by the defendant not to "let [the machine] go because if you let it go it might spin, it will spin." The defendant conceded that he possibly accelerated the machine too hard and when the motor was revved, he let go. Counsel for the plaintiff relied on the following exchange in the course of the defendant's cross-examination:

"When you put that throttle on you just put it on a bit too hard? ---Quite possibly, yes. And it revved up and you let go?---Yes. And you did, I suggest, the exact things that you warned your brother to do, warned your brother not to do, you let go of the machine?---Not intentionally. I'm not saying that you did it intentionally but I suggest that you revved it too hard and let go of the machine because of your action of revving it too hard?---Yes, I suppose so. And that's what caused it to get out of control?---Yes."

80. In my opinion the evidence did not enable an inference to be drawn that the accident was caused by negligence on the part of the defendant. The only evidence as to the circumstances in which the accident occurred was given by the plaintiff and the defendant. No expert evidence was led as to the operation of the machine or the manner in which it was likely to behave in the conditions described by the plaintiff and defendant. No evidence was given as to the cause of the handles rotating and in particular no expert evidence was led as to how the handles rotated when the defendant's hand left the throttle.

83. There was no evidence that the defendant deliberately let go of the handle and there was no evidence from which it could be inferred that the defendant should have foreseen that the handles of the machine would rotate if he activated the throttle. The plaintiff agreed with the proposition that "Neither you nor your brother knew before it happened that the machine was going to swing the way that it did." The defendant was not told by the hirer of any danger of the handles rotating. The defendant said he did not know that the handles might spin, but presumed that they might do so.

86. In my opinion the trial judge was plainly correct in concluding that "the defendant was forced to let go in consequence of motive power**".** There was no evidence that such a result, or that the handles of the machine might continue to rotate and strike the plaintiff, was reasonably foreseeable in the circumstances known to the defendant. I agree with the trial judge's conclusion that the defendant's evidence that he supposed he let go of the handle because he revved the motor too hard and that caused the machine to get out of control was at best speculation with the benefit of hindsight.

89. During the hearing of the appeal the plaintiff was given leave to add the following ground of appeal:

"9. That the reasons of the learned trial judge failed to identify the reasoning process which led him to dismiss the plaintiff's claim in respect of Part IIA of the Wrongs Act."

93. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal.[2] That will occur if the appellate court is unable to ascertain the reasoning upon which the decision is based.[3] Whether reasons are inadequate in this sense will depend upon the nature of the decision and the circumstances of the case.[4]

96. In the present case I am of the opinion that the trial judge's reasons were adequate. It was alleged in the statement of claim that the facts founding the breach of the provisions of Part IIA of the Act were the acts and omissions pleaded as particulars of negligence. The particulars of negligence were limited to a description of the acts and omissions of the defendant in the course of operating the post hole-digging machine. As the trial judge said, none of the particulars alleged that the plaintiff's injuries were due to the state of the premises or things done or omitted to be done in relation to the state of the premises. Counsel for the plaintiff contended that the fact that the plaintiff was injured as a result of the activity of working on the

premises brought the case within the Act. I do not think that s.14B(3) encompasses an operation such as that in which the plaintiff and defendant were engaged, albeit one taking place on and in relation to the premises. In any event Part IIA of the Act imposes liability only upon persons who breach "a duty to take such care as in all the circumstances of the case is reasonable", and the trial judge went on to state clearly why he concluded that the defendant was not in breach of such a duty. I am of the opinion that no more elaborate reasons were required of the trial judge than those he gave in order to demonstrate the process of reasoning upon which he based his decision to reject the claim under Part IIA of the Wrongs Act.

100. For the foregoing reasons I would dismiss the appeal against the trial judge's decision that the defendant was not liable to the plaintiff. In those circumstances it is unnecessary to embark upon an examination of the questions of quantum or the defendant's claim against the insurer.

105. I agree that, for the reasons given by Buchanan, J.A., the appeal should be dismissed.

[1] Warren v. Coombes [1979] HCA 9; (1979) 142 C.L.R. 531; Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129.

[2] See Cropp v. Transport Accident Commission & Beglehole [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Palmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154 at 163-4 per Malcolm, C.J.; Stojkovski v. Fitzgerald [1989] W.A.R. 328; QBE Insurance Ltd. v. Swizerland Insurance Workers Compensation (N.S.W.) Ltd. [1996] HCA 1; (1996) 134 A.L.R. 433.

[3] Sun Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 18 per Gray, J.

[4] Wightman v. Johnston [1995] VicRp 81; [1995] 2 V.R. 637 at 641 per Phillips, J.A.; Waribay Pty. Ltd. v. Minter Ellison [1991] VicRp 78; [1991] 2 V.R. 391 at 402 per Young, C.J. and Kaye, J.