Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd [2002] VSCA 150

Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd [2002] VSCA 150 - VSCA 2002 case summary — Zoe

[15]

There was little doubt that, as a result of this incident, the plaintiff had done damage to the lumbo-sacral disc in his lower back. His local practitioner, Dr. Loizou, said that Wail attended his practice on 9 August 1993 with a history of injuring his back "three weeks ago" when he had "pulled a trolley backwards to get it up a step and felt sudden pain ... radiating down both legs, thighs laterally". The evidence was that, on the same day, 9 August, Wail had received from the doctor a "certificate" saying that he was unfit for work. It would seem that the date of this certificate later became confused by others to be the date of the injury, as will hereafter appear. In any event, the treating practitioner referred Wail in September 1993 to an orthopaedic surgeon, Mr. Carey. The history given by Wail to Mr. Carey was that "in mid July" he received a "sudden pain in the back" when "pulling a trolley backwards to get it up an incline". At the time when he saw Carey, Wail was complaining of constant pain in the lower back. Carey was shown a CT scan which had been taken at the behest of the general practitioner in August 1993 and which did not disclose abnormality. Carey, after treating Wail conservatively for some months during which the pain was not resolved, referred him for an MRI scan which disclosed a "bulge" at the L5/S1 intervertebral disc joint. This, according to Carey, was consistent with the complaints of pain which Wail was making. Carey regarded him as not fit for work as a truck driver. He prescribed therapy, light gym work and gentle exercise. Wail's condition did not respond to the therapy prescribed and he was referred by his general practitioner to various other experts over the ensuing years. The same history was given to these experts - namely that the origin of the disorder was the incident described as "pulling the trolley in July 1993". There was little dispute among the witnesses called on behalf of Wail that his ongoing disability was due to the injury to the L5/S1 disc occasioned by the trauma generated by the incident of "pulling the trolley" in July 1993. There was much medical opinion that Wail's injury had destroyed his capacity to engage in his former work as a truck driver. The business of Andar ran down and Wail was virtually unemployed from 1993 to 1999 when he began to earn a modest income as a "computer animator".

[26]

Having finalized the orders as between Wail and Brambles, his Honour, on 23 March 2000, turned his attention to the issues raised by the third party proceedings. On that day counsel for Brambles applied to his Honour for leave to amend the particulars of claim against Andar to allege, in addition to the claim already made in negligence, a claim that Andar was liable - pursuant to stipulated clauses of its agreement with Brambles - to indemnify Brambles against (inter alia) all actions, claims, demands, losses, damages etc. for which Brambles should become liable arising from injury, etc. caused or contributed to by the conduct of the delivery round by Andar. Such leave was granted by his Honour and, pursuant to the leave, Brambles filed and served an amended third party notice on 23 March 2000. Again pursuant to leave granted, Andar filed an amended defence to Brambles' claim which denied negligence, alleged contributory negligence, denied that it was liable to indemnify Brambles pursuant to the agreement, and alleged that, in any event, that agreement had expired on 3 April 1993. In reply Brambles asserted that the agreement continued after 3 April 1993 on the same terms and was extant on 16 July 1993 when Wail suffered his injury. His Honour adjourned the date for the hearing of the issues in the third party claim to a date to be fixed. In fact the hearing of argument took place on 22 June 2000. On 6 June 2001 his Honour, in accordance with reasons delivered, dismissed the third party claim and ordered Brambles to pay the costs of it. On the assumption that Wail was an employee of Andar, the judge appears to have rejected Brambles' claim for contribution pursuant to ss.23B(1) and 24(2) of the Wrongs Act because, in the circumstances of the case, it was not "just and equitable" (assuming liability on the part of Andar) to order contribution in favour of Brambles because Andar's liability could not be more than the 35% found by the jury to be the extent of Wail's responsibility for his own loss. Although his Honour found that the terms of the agreement between Brambles and Andar continued to bind the parties at the date of Wail's injury on 26 July 1993, he concluded that none of the indemnity clauses contained in the agreement obliged Andar to indemnify Brambles against the damages payable by it to Wail.

[32]

The appellant contends, under cover of this ground, that the judge was in error in failing to "strike out" or dismiss Wail's claim following the amendment made at the outset of the hearing to allege that the injury, for which Wail was seeking compensation, occurred on 16 July 1993 and not on 9 August 1993 which was the date specified by the judge who determined the application for leave pursuant to s.135A of the Accident Compensation Act. As we have previously noted, persons who claim damages in this State for injuries "arising out of, or in the course of or due to the nature of [their] employment" can only seek to pursue those claims in accordance with the provisions of s.135A. So far as relevant to this case, such claims can only be brought if their employment was a significant contributing factor to the suffering of the injury and the injury is a "serious injury" and it arose on or after 1 December 1992 (s.135A(2)). The significance of the date is that it was the date upon which the Accident Compensation (Workcover) Act 1992 came into operation. Relevantly, for the purposes of this claim "serious injury" is defined in sub-s.(19) as "serious long-term impairment or loss of a body function"[1]. Again relevantly for present purposes sub-s. (4)(b) prescribes that no such claim can be brought unless "a court, on the application of a worker ... gives leave to bring the proceedings". Such leave can only be given if "it is satisfied that the injury is a serious injury" (sub-s.(6)). These provisions are, thus, "gateway provisions" which must be satisfied before the claim for damages can be brought. The provisions have provided fertile fodder for the profession notwithstanding the lament of the courts that it has given rise to a "foolish, wasteful and inconvenient system" which duplicates the expense in establishing the nature and degree of the potential plaintiff's injury[2]. It can only be assumed, from the fact that the system remains, that it is still regarded, on balance, as a cost-saving system. By its very nature, a preliminary finding by a judge that the applicant for leave has sustained a "serious injury" arising out of his employment does not finally determine the rights of the parties. It is merely a preliminary step along the way to establishing those rights. It does not prevent the defendant, at the trial, from challenging the seriousness of the injury, or from seeking to show that it did not arise out of the plaintiff's employment, or that such employment did not significantly contribute to it. The focus of the leave application is whether, in the opinion of the judge asked to grant leave, the injury is a "serious" one within the meaning of s.135A(19).

[36]

It is not suggested by the appellant that his Honour did not fairly and fully direct the jury as to the issues between the parties on the question of liability or the evidence relating to those issues. Nor is it in contest that the defendant made no application to "non-suit" the plaintiff or for leave to "move non obstante". On this aspect, however, counsel for Brambles has submitted that there was no evidence upon which the jury could properly return a verdict against it. In general terms, Wail's case was that the system of work which had been designed by Brambles for effecting deliveries of linen, and which it required the contracted drivers to employ, unreasonably exposed those drivers to risk of injury because of the weight of the fully laden trolleys combined with their lack of manoeuvrability and tendency to "stick" when jammed up against other trolleys in the row. The evidence given by and on behalf of the respondent, Wail, was that these trolleys, when fully laden, weighed between 500 and 700 kgs and that to move a trolley of that weight from a stationary position was calculated to impose an unreasonable strain upon the driver. Wail's evidence was that the trolley which he was "pulling" when his back "gave way" was fully laden and was "stuck" against the trolley to the left of it. He had difficulty in moving it. This case made on behalf of Wail was supported by an engineer, Lightfoot, who gave evidence that the design of the trolleys, with the four swivel wheels, was less than adequate for the use to which they were employed because, when moving them from a stationary position, greater force than was reasonable was or might well be imposed upon the handler due to the tendency of the wheels to swivel across the direction of intended travel. A better system, he opined, was to "fix" two of the wheels to lessen the tendency to "stick" when the trolleys were laden. He stated that, in the designed state of these trolleys, he would recommend that they should not weigh more than 250-300 kg when laden.

[39]

This, then, was the state of the evidence on the question of negligence which was left to the jury to consider, and in respect of which the jury found that Brambles was negligent. Counsel for Brambles submitted that we should now conclude that their verdict in this respect was unreasonable and unsupported by the evidence. We do not agree. It is trite to say that appellate courts should be slow to disturb a jury's verdict arrived at after a consideration of evidence which is in dispute. The jury is the "constitutional tribunal" in respect of findings of fact[5]. Where a civil action is conducted before a jury, there is an important distinction between the functions of the judge and jury, which necessarily must be recognized by appellate courts[6]. In approaching a jury's decision on disputed questions of fact, an appellate court must assume that the jury has taken a view of the evidence most favourable to the plaintiff and has rejected the evidence and inferences favourable to the defendant[7]. Appellate courts are not authorized to disturb a jury's verdict simply because they do not agree with it or regard the evidence as preponderating against it. Absent misdirection or misreception of evidence, the appellate court must assume that the jury acted lawfully and properly in reaching their verdict. It is only if the verdict betokens "a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach" that an appellate court can intervene[8]. Applying these principles to this case, we are quite unable to say that, in the light of the disputed evidence before them, this jury was acting unreasonably in concluding that Brambles was in breach of the duty which it now admittedly owed to Wail. In our view the jury was entitled to take the view that a system which required a driver to manipulate heavy trolleys in circumstances where a combination of their weight, design, and resistance to movement was calculated to put a more than significant strain upon their handlers was one which unreasonably exposed the driver to a risk of injury. In the light of the evidence upon which the jury was asked to determine this issue, we are quite unable to regard their verdict as one which can be categorized as "unreasonable" or relevantly "perverse". Accordingly, we reject this ground of appeal.

[59]

In our opinion neither of these arguments has merit. It is tolerably clear from the exchanges to which we have referred that, by the time the jury returned to court to deliver its verdict, the judge had made up his mind that he was not going to redirect on the issues of past economic loss, that counsel understood that, and accepted it. His Honour's reasons for his conclusion were also clear; namely that the tax returns were the best evidence of Wail's pre-accident earnings, and that the "wage and salary book" upon which counsel for Brambles was relying displayed incomplete records on its face and, on one view, was consistent with a receipt of annual income of some $24,000 net per year, which was about the same as that for which counsel for Wail was contending. Hence, his Honour had concluded that he was not in error in telling the jury that there was "no real dispute" about the pre-accident earnings. We are not persuaded, on the material presented to this Court, that natural justice was denied to Brambles because the judge failed to do what he said he was going to do. Nor are we satisfied that his Honour misdirected the jury on the question of past economic loss. Upon any view of the evidence, we think the judge was correct to conclude that the tax returns were the most reliable record of Wail's pre-accident earnings, the 1993 income year having just concluded before the accident occurred. Although we do not share the judge's advantage of a familiarity with the "wage and salary book", we have no reason to doubt his Honour's description of it as "shoddy" and "incomplete". Indeed it was not suggested in this Court that those descriptions were inaccurate. In these circumstances, it seems to us that his Honour was right in declining to further direct the jury to put an argument of counsel, which had already been made by counsel, and which it was unnecessary to repeat in circumstances where the judge was entitled to regard the evidentiary foundation for it as inadequate and potentially misleading. Once again, it is not suggested that the jury's award of damages for pecuniary loss was unreasonable on the evidence before them. In the circumstances, we are not persuaded, even if his Honour was in error in failing to re-direct on this issue, that any substantial miscarriage of justice has been occasioned. Accordingly, we reject these grounds.

[116]

Here the written agreement came to an end on 4 April 1993. The question whether an implied or tacit agreement to continue dealing on the same terms save that the agreement should be terminable on reasonable notice is to be inferred is, as Desmond, C.J. stated and as the other cases and the treatises make abundantly clear, an evidentiary or factual question. On the facts we have set out earlier we consider such an inference should be drawn here. The evidence, fairly sparse though it is, warrants the finding that after 3 April 1993 the parties proceeded as though still governed by the terms of the original agreement (save that, since it had already expired, either could terminate the substitute arrangement on reasonable notice), rather than a finding that they impliedly agreed merely that Andar should collect and deliver the laundry and that Brambles should pay it a reasonable sum for that or a finding that the parties made a series of individual implied agreements, six days a week, for that work to be done for a reasonable sum. In other words, after 3 April 1993 the parties operated under a standing agreement under which all the procedures and, importantly, the remuneration were exactly the same as they had been under the written agreement. The parties intended that that should be so. The contract thus made was not a mere variation of the original agreement, for it was not made until after the latter had expired.[46] Accordingly clause 15.1, requiring signed written agreement for a variation, did not apply to it. Nor did clause 14.5, the "whole agreement" clause, since it was not apt to apply to a subsequent and separate agreement. Clauses 6.1 and 8.2, for instance, contemplate "renewal" and "extension". Renewal and extension are closely related concepts, normally involving a continuation of the contractual relationship on essentially the same terms and conditions as contained in the original contract. Whether a renewal creates a new contract, or extends the original contract, depends primarily on the intention of the parties as evidenced by the agreement or agreements they have made. Thus, generally an option to renew a contract is the right to require the execution of a new contract[47], whilst an option to extend the term, exercised during the currency of the term, merely operates by way of variation to extend the term of the original agreement.[48] Whether the implied or tacit contract made after 3 April 1993, which cannot be an extension, is called a renewal is really a matter of definition. The important point is that it was a new and separate contract.

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Judgment (183 paragraphs)