Fassbender v H W & M T A Bohlmann

COSTS - Accident Compensation Act 1985, s 134AB(28) - not applied to third party defendant - Spotless Services Australia v Herbath - whether circumstances of case supported Sanderson order - trial costs order not disturbed.

For the Appellant in proceeding 3741 of 2009 and the First Respondent in proceeding 3747 of 2009

For the Respondents in proceeding 3741 of 2009 and the Applicants in proceeding 3747 of 2009

For the Second Respondent in proceeding 3747 of 2009

1 On 10 February 2004 the appellant, Mr Fassbender, suffered a serious back injury in the course of his employment with the respondents. Prior to the accident, the appellant had worked as a truck driver for almost 20 years. For a short time between about 1999 and 2003, he and his wife had operated a small transport business themselves. On about 20 May 2003, the appellant started working for the respondents as a driver. The respondents are Mr Henning Walter Bohlmann, known as Wally Bohlmann, and Ms Bohlmann, who run a transport and trailer manufacturing business in partnership. Their son, Mr Darren Bohlmann, also works for the business.

2 In his employment with the respondents the appellant drove a semi-trailer owned by them, picking up and delivering goods along the eastern seaboard. He sustained the injury to his back whilst attempting to move boxes of goods in the back of the trailer in the course of transporting them from Melbourne to Sydney for the respondents.

3 On 29 January 2008, the appellant commenced an action in the County Court of Victoria seeking damages against the respondents and DIM Furniture (Vic) Pty Ltd ('DIM') (the 'second defendant'), the occupier of the premises at which the goods were loaded, in respect of the injuries which he had suffered.

4 In substance, it was the appellant's evidence that on the day of the accident, he attended the premises of the second defendant at Keon Park for the purpose of loading nine parcels of timber which he was to carry to Sydney. He was accompanied by his friend, Mr Ian McQuade. Mr McQuade was based in Wangaratta, and had come along for the ride. After the parcels of timber were loaded by the second defendant's forklift drivers in accordance with the appellant's instructions and secured by the appellant, he was informed by the drivers that there were four additional boxes of goods to be loaded that were not on the manifest. The appellant says that he objected, as he had already configured the load and used all of the straps and angles that he had available to him to secure it. He says he rang his boss, Wally Bohlmann, on a mobile phone and told Mr Bohlmann about the additional four boxes. He told Mr Bohlmann that he did not have the means to secure them in the trailer. Mr Bohlmann told him not to 'rock the boat' and to accept the extra boxes, as the second defendant's freight run was one of the respondents' main jobs out of Melbourne and he did not want to lose that work. As a result, the appellant told the forklift drivers to load the boxes, but said that he would take no responsibility for them. Once the additional boxes were loaded, the appellant attempted to secure them using some rope that he had found in the trailer. When he left the DIM premises, the appellant was satisfied that he had secured the load as best he could in the circumstances.

5 On the road to Sydney, the boxes shifted. The appellant said that he first noticed a bulge in the curtain on the passenger side of the trailer around Euroa. He continued on to Wangaratta, where he was proposing to drop off Mr McQuade, to rest and to have a meal. At Wangaratta, he parked the trailer in a warehouse belonging to Mr McQuade, clambered into the trailer and tried to correct the load unassisted. Whilst moving a second box, he injured his back. Such was the pain caused by his injury that he had to be lowered from the back of the trailer by forklift. He could not continue on the journey to Sydney and has not worked since.

6 The appellant has received extensive treatment for his back, including surgery. He now lives with chronic pain. It is uncontroversial that he is permanently unfit for work.

7 The particulars of negligence alleged against the respondents were, relevantly, as follows:

(b) failing to provide any or any adequate assistance to the appellant;

(c) requiring the appellant to accept the extra goods for transport when the respondents knew or should have known that they could not be carried safely;

(d) requiring the appellant to lift heavy boxes when same had been placed in a dangerous position in the truck making it difficult for the appellant to lift the boxes;

(e) failing to adequately supervise their servants or agents in the performance of their duties;

(f) failing to instruct the appellant not to accept the extra goods;

(g) failing to inform the second defendant that the appellant was not to accept the extra goods;

(h) failing to ensure that the load that the appellant was required to carry interstate was properly secure and/or fastened;

(i) failing to take reasonable care of the appellant;

(j) exposing the appellant to a risk of danger or damage when the load provided to him was not properly fastened or secured;

(l) failing to provide the appellant with necessary equipment to enable him to perform his duties; [and]

(p) failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the regulations made thereunder.

8 By their defence, the respondents alleged that if the appellant suffered injury, loss or damage by reason of negligence or breach of duty on their part, then he contributed to those injuries by his own negligence. The particulars of the appellant's alleged negligence were as follows:

(b) failing to pay any or any proper attention to the activity he was performing;

(c) failing to take any or any reasonable care for his own safety;

(d) failing to comply with the respondents' system of work;

(e) failing to properly or at all tie down the load;

(g) if the appellant was exposed to a risk or danger of injury, then failing to inform his superiors of same;

(h) if the appellant required plant or equipment, then failing to seek same from his superiors;

(i) if the work caused any difficulty, then failing to notify his superiors of the same;

(j) if the appellant was required to perform any lifts or undertake any manoeuvres which were too heavy or awkward for him, persisting in the same when he knew or ought to have known that the same were too difficult; and

(k) failing to seek any assistance in all the circumstances.

9 On 26 November 2008, the jury returned a verdict in favour of the appellant. The jury found that negligence by the respondents was a cause of the appellant's injury, loss and damage, and that there was no negligence by the second defendant. It assessed the appellant's damages for pain and suffering as $200,000 and damages for pecuniary loss as $377,000. However, the jury found that there was contributory negligence by the appellant and that it was just and equitable to reduce his damages because of his contributory negligence by 70%.

1. The finding that there was negligence on the part of the appellant was not open to the jury on the evidence.
2. The finding of the jury that the appellant was negligent and that that negligence contributed to the loss and damage was against the evidence and the weight of the evidence.
3. The finding by the jury that the appellant's proportion of responsibility for his loss and damage amounted to 75% [sic] was against the evidence and the weight of the evidence.
4. The learned trial judge misdirected the jury as to the approach they should take on the apportionment of liability.
5. The learned trial judge failed to give the jury adequate guidance as to the comparative approach it should take to the degree to which the appellant and respondents deviated from their respective standards of care.
6. The learned trial judge failed to adequately clarify the basis upon which defence counsel had submitted the appellant was guilty of contributory negligence.
7. The award of $377,000 by way of economic loss to the appellant is inadequate and against the weight of the evidence.

(a) the jury verdict as to contributory negligence;

(b) the trial judge's directions to the jury on that issue; and

Grounds 1, 2 and 3: Jury verdict as to contributory negligence

12 By grounds 1 and 2, the appellant contends that the finding that there was negligence on his part was not open to the jury on the evidence or that it was against the evidence and the weight of the evidence. By ground 3, the appellant contends that the finding by the jury that the appellant's proportion of responsibility for his loss and damage amounted to 75% (in fact, it was 70%) was also against the evidence and the weight of the evidence.

13 The appellant begins by arguing that, as a matter of logic, the finding of contributory negligence was not open because there must first have been a finding that the respondents were negligent. In order to find that the respondents were negligent and that their negligence caused the appellant injury, loss and damage, the jury must have accepted the appellant's evidence (and that of Mr McQuade) that:

(a) the extra boxes were not part of the original load;

(b) The appellant telephoned Mr Bohlmann from the second defendant's premises and complained that he was being required to accept the extra boxes and that he did not have sufficient materials with which to secure them;

(c) Mr Bohlmann directed the appellant to accept the extra boxes;

(d) the extra boxes were loaded in the most appropriate place having regard to the fact that the original load had already been secured;

(e) The appellant secured the load as best he could in the circumstances and that when he left the second defendant's premises, the extra boxes were secure;

(g) the system of work used by the respondents required the appellant to correct the load manually and without assistance;

(i) that the appellant was complying with the system of work at the time he was injured; and

(j) The appellant was injured in the performance of his duties in the manner in which he was required by the system utilised by the respondents.

14 The appellant says further that if a worker is injured in the course of carrying out his duties in the manner in which he was required by his employer to carry them out, there can be no contributory negligence.

15 The appellant's argument that a finding of contributory negligence was not open to the jury fails at the first hurdle. In order for the jury to find that the respondents were negligent and that their negligence was a cause of the appellant's injury, loss and damage, it was not necessary for it to find in favour of the appellant on all of the matters enumerated in [13] above. For example, the jury could have found that the respondents failed in their duties to the appellant even if the jury did not accept the appellant's evidence about the phone conversation with Mr Bohlmann because it formed the view that the respondents did not sufficiently explain their system of work to the appellant, or provide him with adequate equipment to properly secure the load. Likewise, it was not necessary for the jury to find that the appellant secured the load as best he could in the circumstances or that when he left the second defendant's premises, that the extra boxes were secure or loaded in the most appropriate place, or that the system of work used by the respondents required the appellant to correct the load manually and without assistance. There are a number of ways in which the jury could have found the respondents to have been negligent without accepting the appellant's evidence on all of the matters in [13].

16 Accordingly, we do not accept that the jury's finding that the respondents were negligent necessarily precluded a finding that the appellant, through his own conduct, contributed to the injury, loss and damage that he suffered. Nor, for the reasons that follow, do we consider that the finding by the jury that there was negligence on the appellant's part and that the appellant's proportion of responsibility for his loss and damage amounted to 70% was against the evidence and the weight of the evidence.

17 As the trial judge correctly observed, the issue of contributory negligence has to be approached on the footing that the respondents failed to discharge their obligation to take reasonable care and that, in considering whether there was contributory negligence by the appellant, the circumstances and conditions in which he had to do his work have to be taken into account. The question is whether in those circumstances and under those conditions there was evidence from which the jury could find that the appellant's own conduct amounted to negligence and not mere inadvertence, inattention or misjudgement.[2]

18 The relevant principle to be applied was stated in Calin v Greater Union Organisation Pty Ltd by Mason CJ and Deane, Dawson and Toohey JJ:

The correct principle is that a court on appeal may order a new trial if the jury has reached 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.[3]

19 The analysis necessarily depends on assuming a view of the evidence most favourable, in this case, to the respondents; the Court on appeal is to 'first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict returned, and then ask whether, in the light of that evidence, the award is sustainable.'[4]

20 There was evidence before the jury supporting a finding of contributory negligence.

21 The appellant gave evidence as to his actions in relation to the loading of the additional boxes. He said he was not having anything to do with the loading of the extra boxes and was not watching closely. It was up to the forklift drivers to place the boxes where they thought the boxes would be safe. He had 'washed his hands' of the loading operation and took no part in the placement of the extra boxes. He agreed that he could have asked the forklift drivers to reconfigure the entire load, but that he had not done so. He did say to the forklift drivers that if the boxes were to be transported, then the whole load would have to be rearranged to accommodate them, and that he was not prepared to do that. It was late afternoon, he had been up all day. He wanted to go home and, with the delay in loading the trailer, he was already two, three, four hours out of sleep. He said, 'in truck driving the biggest thing is the hours that you've got to try and get some sleep'.

22 The appellant gave evidence that once the extra boxes were loaded, he secured them with some rope that he found in his toolbox, doubled over the combing rail on the passenger side. When he pulled the rope down over the corner of a box, he noticed that the box was starting to crush, so he did not put a great deal of force on the rope as he did not want to damage the goods. Although he had no straps or angles to secure the extra boxes, he did the best job that he could with the equipment that he had. He said that this was the safest way that he could have secured the load at the time, with the exception of starting again afresh by pulling the whole load apart and putting the boxes in the middle of the trailer between the gates. However, he also said, 'I knew that they would move. I presumed they would get damaged when they did move.'

23 The appellant agreed that it was an option to start again afresh and reload the truck. However, he did not ask the forklift drivers to help him to redistribute the load. There was evidence from the forklift drivers that if asked, they would have reconfigured the load or unloaded and reloaded the load. It would have taken 20 minutes to unload enough of the truck to enable the load to be reconfigured to include the four extra boxes, and 20 minutes more to reload.

24 It was the appellant's evidence that he knew that configuring the load in the trailer and ensuring that it was secure was one of his responsibilities under the respondents' system of work.

25 In our view, the jury was entitled to find that the appellant had, and knew that he had, an obligation to load the trailer safely or to ensure that it was safely loaded. However, when he was asked to take the extra four boxes, he told the forklift drivers he did not want to take any responsibility for them. It was open to the jury to conclude that he did not fulfil his responsibility to ensure that the trailer was securely loaded.

26 Further, the appellant gave evidence that, while he would have liked to have had straps and angles to secure the extra boxes, it did not cross his mind to stop to buy additional straps or ropes. Contrary to his statement that he thought the extra boxes would move and get damaged, he said that he did not consider acquiring additional equipment because he was satisfied that the extra boxes he had secured with the rope would stay in place. He also said that he did not stop at 'Truck City' to buy additional equipment because he did not like Truck City and that he did not stop because he did not have any cash on him.

27 As to the respondents' system of work, Mr Bohlmann gave evidence that a driver was to accept an extra load if it could fit on the truck and be safely accommodated. However, it would contravene the system of work to require a driver to carry a load that could not be adequately secured. If a driver said he could not secure the load or did not have sufficient ropes or angles, Mr Bohlmann would not approve the driver taking the load because of the risk of damage to the load and to the vehicle. Additional ropes, straps or angles could have been provided to the appellant had they been requested and had he had any concerns about the security of his load after leaving DIM's premises.

28 There was evidence from Mr Bohlmann that the appellant was provided with a mobile phone to help sort out problems, whether it be running out of fuel, a truck problem, a loading problem or to arrange for the provision of any equipment he might need. Mr Bohlmann used his business card to pay for anything the driver might need while on the road. Mr Bohlmann also gave evidence that help was available in Seymour at the company premises. Manual assistance, a forklift and equipment such as ropes or binders would be available to a driver who was worried about the security of his load.

29 An important matter concerns the telephone call allegedly made by the appellant to Mr Bohlmann from the DIM premises when he was told about the extra boxes. Mr Bohlmann said that he could not recall any such telephone conversation. Indeed, the appellant's evidence was that he could not remember that phone conversation either. His recollection was reconstruction based on what he would have done in the circumstances. He said he knew he would have made the call to Mr Bohlmann, because that was how he operated. The appellant agreed that he did not make the phone call from the mobile phone provided to him by the respondents. He said he must have made it using his own mobile phone or from a pay phone. The appellant's own telephone records were not tendered.

30 In answer to an interrogatory requesting details of Mr Bohlmann's alleged instruction to load the extra goods, the appellant said as follows:

Save to say that I spoke to the employer after I discovered that the extra goods had been loaded onto the trailer and I was instructed to accept the extra goods and deliver them to Sydney I am unable to answer this interrogatory further.

31 The appellant's evidence at trial was, however, that he made the phone call before the extra goods were loaded onto the trailer. This discrepancy may have caused the jury to doubt the reliability of the appellant's evidence regarding the phone call to Mr Bohlmann from the second defendant's premises.

32 Further, the appellant made a statement about the relevant events on 22 March 2004, some five weeks after the accident. That statement was in evidence. It makes no mention of a dispute about the extra load or the telephone call to Mr Bohlmann. Nor does it say anything about the appellant not having enough equipment to secure the load. When this was put to the appellant, he answered that the jury should rely more on his account of the circumstances of the accident given in court than on the account in his statement.

33 In our view, it was open to the jury to find that the phone call to Mr Bohlmann alleged by the appellant did not occur or, alternatively, that its content was decidedly different from the content described by the appellant.

34 Apart from the matters adverted to, there were a number of reasons why the jury may not have accepted the evidence of the appellant on every question. The appellant's version of events was heavily contested and he was subjected to lengthy cross-examination. At trial, he conceded that he no longer had direct recollection of important matters, such as the phone call to Mr Bohlmann from the second defendant's premises. He admitted to an inability to recall aspects of events and of having to 'reconstruct' aspects of his account. He agreed that drug use may have affected his memory.

35 Had the jury accepted the appellant's evidence of the phone call with Mr Bohlmann from the second defendant's premises, the effect of which was that Mr Bohlmann required the appellant to take the extra boxes even though they could not be securely loaded, a finding of 70% contributory negligence might not have been open. However, it seems likely that the jury did not accept the appellant's account of this conversation - either that it took place or as to its content.

36 The appellant submitted that if the jury did not accept his evidence about the phone call, a finding of negligence against the respondents would not be open. We disagree with this proposition. There were a number of other matters referred to in the particulars of negligence in respect of which the jury may have concluded that the respondents failed in their duty to the appellant: instructions given to the appellant in relation to his responsibility to adjust loads while on the road may not have been sufficiently clear; the equipment provided to the appellant to secure or to move loads may not have been adequate; the appellant ought not to have been required to lift heavy boxes at all; the appellant was not provided with adequate assistance generally. The jury may simply have concluded that the respondents failed to take reasonable care of the appellant, even though the appellant was principally responsible for the accident.

37 The respondents' counsel, Mr Blanden, argued the case for contributory negligence by emphasising the events at Wangaratta and the appropriateness of the appellant attempting to move the load without assistance once it had moved. There was evidence from the appellant that Mr McQuade could have climbed into the trailer to assist him to move the boxes. In fact, the appellant called out for Mr McQuade's assistance, but only once he had been injured. The appellant also said that he injured himself moving a second box, after he had already moved another one of the four boxes. He agreed that moving the first box gave him some idea as to how heavy the boxes were. However, he maintained that he had no clear idea of the weight of the second box. When he pulled it towards him, he recalled thinking that it was a little heavier than he had thought, but he continued to try to move it. The respondents' case was that once the appellant became aware of the weight of the boxes, he should not have made any further attempt to move them unassisted. The jury may have accepted this.

38 Mr Bohlmann gave evidence that it was the driver's responsibility to correct the load if the load shifted and the driver was able to do so, but a driver was not expected to move a 44 gallon drum, for example, without assistance. It was, in our view, open to the jury to find that the appellant was not obliged to move the boxes without assistance. There was evidence from which the jury could reasonably have concluded that the appellant was not injured in the performance of his duties in accordance with the respondents' system of work.

39 In our view, therefore, there was evidence supporting a finding of contributory negligence by the jury. It is not possible for this Court to conclude that the evidence in its totality preponderated so strongly against the conclusion favoured by the jury that the appellant contributed to the injury, loss and damage that he suffered that it could be said that this conclusion was one that reasonable jurors could not reach.

40 As to the question of apportionment of liability, in Podrebersek v Australian Iron & Steel Pty Ltd[5] the High Court said:

A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] A.C. 197, at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] VicRp 94; [1958] V.R. 594.

41 The finding that the appellant contributed to his injury, loss and damage, and that his contribution should be assessed as 70% was open to the jury. It involved questions of balance and relative emphasis, and the weighing of different considerations. Again, on the basis of the evidence that has been referred to, this Court cannot conclude that the verdict was one that reasonable jurors could not reach.

42 The appellant submits that the judge below misdirected the jury as to the approach the jury should take to the apportionment of liability, that she failed to give the jury adequate guidance as to the comparative approach it should take to the degree to which the appellant and the respondents deviated from their respective duties of care and that she failed to adequately clarify the basis upon which the respondents' counsel had submitted that the appellant was guilty of contributory negligence. In written submissions, the appellant's complaint about the directions to the jury is expressed as follows:

1. Although her Honour endeavoured to explain the principles the jury had to apply to the task, she did not ground it in the case put by the parties. [T932 L5-13].
2. Her Honour failed to instruct the jury that if the Appellant was carrying out his duties in the manner in which he was instructed and required, as conceded by the Respondent's counsel in his address, there could be no contributory negligence.
3. The jury was not given any real guidance as to how the comparison of the relative fault of the parties should be made.

43 The judge below gave a relatively detailed charge in relation to contributory negligence. Her Honour instructed the jury that the respondents had the onus or burden of proof in relation to allegations of contributory negligence and that this was a civil onus. As a matter of law, the appellant was under an obligation to take reasonable care to avoid foreseeable risk of injury to himself while carrying out his duties. Whether the appellant failed to take reasonable care for his own safety was to be assessed on an objective standard, bearing in mind all the surrounding circumstances. The jury had to ask itself whether the appellant did something that a reasonably careful person would not have done in the circumstances or whether he failed to do something which a reasonably carefully person would have done in the circumstances.[6]

44 The judge below set out the arguments of the respondents and the second defendant in relation to contributory negligence, and the responses made on behalf of the appellant to them. Her Honour described the particulars of contributory negligence alleged by the respondents, including those that referred to the events surrounding the loading of the trailer at the premises of the second defendant. Her Honour then said:

Mr Blanden [counsel for the respondents (the first defendant at trial)] suggested to you that the relevant facts were those surrounding the plaintiff's movement of the load at Wangaratta. He said that if the plaintiff considered the boxes were too heavy to be moved by him alone, he should have asked for help either from Mr McQuade or from his employer. He suggested that after rolling the first extra box the plaintiff should have been able to determine that the second one was heavy. He also suggested that given the injury to the plaintiff could have occurred without the box being heavy, given the evidence from Mr Darren Bohlmann that he had the same problem with his back.

45 In response, her Honour said, the appellant's counsel had 'asked rhetorically if you accept the plaintiff's evidence, what more could he have done?' Her Honour recorded Mr Morfuni's submission that the appellant had used his best endeavours to secure the load and that he could not refuse the load and drive away. He was obliged to attempt to correct it. The appellant had explained why he waited until Wangaratta to do so and why he did not ask Mr McQuade to help him. Her Honour described separately the submission that if the appellant's explanation and his evidence was accepted, particularly of the phone call to Mr Bohlmann while at the second defendant's premises, then there was no negligence by the appellant. Likewise, her Honour recorded the submission that on the evidence, it was not unreasonable for the appellant to try to right the boxes. It was artificial to break down the appellant's action in righting the boxes into milliseconds and require him to pause after moving the first box to think about how heavy it was before moving the second box.

46 Of course, submissions were also made by the second defendant as to why the appellant was negligent, and these may also have been taken into account by the jury. In her charge, her Honour referred to the second defendant's particulars of negligence by the appellant and to the concession by counsel for the second defendant that if the jury accepted the appellant's evidence that he was reasonably satisfied that the extra boxes were loaded in the appropriate place in the trailer and secured as best they could be, then some of those particulars fell away.

On these issues raised by each of the first and second defendants, you should weigh up whether you would expect a reasonably careful person in the plaintiff's circumstances to have done much the same as he did, or whether you would expect a reasonably careful person in the plaintiff's circumstances to have refused to accept the extra load, stopped to get extra ropes or binders, not to attempt to right the extra load that had shifted on his own or without using lifting goods or equipment. I repeat that in relation to the claim of contributory negligence raised by each defendant bears the burden of satisfying you on the balance of probabilities in relation to the claim of contributory negligence made by it that a prudent person in the plaintiff's circumstances would have acted differently and that what he did or omitted to do towards his own safety contributed to his suffering, injury, loss and damage.

48 In relation to the proportion or percentage of contributory negligence, her Honour said:

If you found that the plaintiff was guilty of contributory negligence as alleged, you must then go on to decide by what percentage or proportion or share is just and equitable, that the total loss and damage to the plaintiff should be reduced, having regard to his own share in the responsibility for such injury, loss and damage. It is a comparison of the plaintiff's culpability with that of the defendant. If you come to the view that there was negligence on the part of the defendant, either the first defendant or second defendant, and contributory negligence on the part of the plaintiff, you must make a comparison of their blameworthiness, and in making that comparison, decide by what percentage or proportion is just and equitable, that the total loss and damage to the plaintiff should be reduced, having regard to his own share in the responsibility for such injury, loss and damage.

49 Her Honour elaborated on the exercise of comparison. She told the jury that it was not a moral judgement and that it was a matter for the jury to compare the degree by which each party fell below the requisite standard of reasonable care expected of that party, and compare the degree by which the fault of each contributed to the happening of the incident, the occurring of the injuries, and the loss and damage suffered by the plaintiff. She told the jurors that they had also to bear in mind all the surrounding circumstances leading up to the accident, the incurring of the injury, loss and damage.

50 We are satisfied that the judge below explained the principles of contributory negligence to the jury and that she did so by grounding the principles in the cases put by each of the parties. We are also satisfied that the jury was given adequate guidance as to how the comparison of the relative fault of the parties should be made. There was no misdirection to the jury as to the approach the jury should take to the apportionment of liability; nor was there any failure to give the jury adequate or 'real' guidance as to the comparative approach it should take to the degree to which the appellant and the respondents deviated from their respective duties of care.

51 In our view, the directions to the jury on contributory negligence complied with the guidance given by the High Court of Australia in Podrebersek v Australian Iron & Steel Pty Ltd:[7]

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 (Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; [1953] A.C. 663 at p 682; Smith v. McIntyre [1958] Tas.S.R. 36, at 42-49 and Broadhurst v. Millman [1976] VicRp 15; [1976] V.R. 208 at p 219 and cases there cited. 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.

52 Further, the judge below did not fail to adequately clarify the basis upon which the respondents' counsel had submitted that the appellant was guilty of contributory negligence. Mr Blanden's submissions on this point were set out for the jury. Having compared the account given by the judge below of Mr Blanden's submission on contributory negligence with the transcript of that submission, we are satisfied that the learned judge's description in her charge represented an 'adequate clarification' of the respondents' position.

53 In written submissions, it was also argued on behalf of the appellant that the judge below did not instruct the jury that if the appellant was carrying out his duties in the manner in which he was instructed and as he was required to do, there could be no contributory negligence. Although the learned judge did not say this to the jury in terms, her Honour emphasised that the appellant's actions, and whether he had acted as the jury would expect a reasonably careful person in his position to, had to be assessed by reference to the circumstances in which he found himself.

54 Accordingly, grounds 4, 5 and 6 are not made out.

55 The appellant claimed loss of earnings for the period 10 January 2004 to 18 November 2008 in the amount of $205,956, based on what he says would have been his weekly gross income, which varied between $829.40 per week and $961.50 per week. As to future economic loss, in final address Mr Morfuni on behalf of the appellant submitted that if calculated until the age of 60, his loss of future earnings would be $493,493 (comprising $439,909 plus superannuation of $53,584). If calculated until the age of 65, his future loss of earnings would be $577,284 (comprising $508,807 plus superannuation of $68,477). A discount of 15% to allow for vicissitudes reduced the figures to $419,469 and $490,691 respectively. These amounts are calculated by reference to his most recent period of work with the respondents as a truck driver, when the appellant apparently earned $795.50 net per week.

56 In Kanja v Dynamic Engineering Construction Co Pty Ltd,[8] this Court reiterated the principle that applies when an appellate court is asked to set aside an assessment of damages:

Unless the case is one in which there is no evidence capable of supporting the verdict, the principle which applies when an appellate court is asked to set aside an assessment of damages by a verdict is not in doubt. The appellant has the burden of establishing that on the view most favourable to the respondent, no reasonable jury, properly instructed and giving due attention to the evidence, could arrive at such a verdict. An appellate court has no power to review the evidence except for the purpose of establishing what view of the evidence was reasonably open to the jury.

57 The respondents submit that the jury's assessment for pecuniary loss of $377,000 was reasonably open to it having regard to the appellant's actual earnings, which totalled only $147,000 for the ten year period prior to his injury, and his work record, which involved a number of different employers. The appellant's evidence was to the effect that he would work for someone for a while and then move on. The respondents contended that on the basis of the appellant's work record and earnings, it would be unreasonable to calculate his future loss of earnings on the basis that he would work every day in the future.

58 The appellant's summary of tax returns from the 1995-96 financial year to the 2003-2004 financial year showed the following gross taxable income:

59 The respondents also pointed to evidence given by the appellant that he might not have continued truck driving, but was considering changing course to become a drug and alcohol counsellor. The evidence before the jury was that the appellant had only been working for the respondents for nine months, and that he had resigned from their employ. Although he had organised a truck driving job for a firm called 'Brogdens', there was evidence this was to be only part-time to enable him to undertake a course as a drug and alcohol counsellor. There was no evidence as to what Brogdens were going to pay him.

60 The respondents also pointed to evidence that the appellant had a pre-existing problem with his back that may have affected his long term prospects as a truck driver. The appellant gave evidence that he had strained his back in 1989 and had taken a short time off work. After that he had 'a sore back here and there with muscular soreness', but he would not say that he had a problem with his back. Both Mr Wally Bohlmann and Mr Darren Bohlmann gave evidence as to what the appellant had told them about having had back or sciatic pain on a previous occasion. Darren Bohlmann gave evidence that when he went to the Wangaratta warehouse to take over driving the semi-trailer to Sydney, he was told by the appellant that the appellant felt that he could not go on. The appellant told him he was going to go home, that he had had this problem before, that he had a vibrating massage-type of device and he thought he would be right in a couple of days.

61 The jury's verdict for past and future economic loss was $377,000. The respondents say that if, hypothetically, the jury allowed $500 per week in lost income rather than the $900 per week sought by the appellant, this would result in the following calculations for loss of earnings:

$500 per week x 244 weeks x 9% superannuation, less 15% for vicissitudes = $113,033.

$500 per week x 553.4 multiplier (to 60) x 9% superannuation, less 15% for vicissitudes = $256,362.

63 In view of the evidence concerning the appellant's past earnings and work history as a truck driver, the fact that he had resigned from the respondents' employ and was (possibly) proposing to work as a drug and alcohol counsellor rather than as a truck driver, along with questions over his fitness to work as a truck driver in the longer term, a reasonable jury, properly instructed and giving due attention to the evidence, could have arrived at an assessment of pecuniary loss of $377,00.

65 The appellant has failed to make out any of his grounds of appeal. The appeal should be dismissed, with costs.

66 This leaves the matter of the costs orders made by the trial judge. These orders have been challenged by the respondents in an application which joins both the appellant and the second defendant. The appellant's appeal having been dismissed, unless an error of principle can be identified in the exercise of the trial judge's discretion as to costs which led that discretion to miscarry, those orders will remain undisturbed.[9]

67 The learned trial judge heard the parties as to costs on 25 February 2009, and delivered her decision on 12 March 2009.[10] Her Honour held that, where an employee is bringing a negligence action against an employer and one or more third parties, s 134AB(28) of the Accident Compensation Act 1985 (Vic) (the 'Act') only governs the question of costs as between the employee and the employer, and does not address the question of costs between that plaintiff, their employer and any third party defendant joined in the action.[11] Accordingly, her Honour treated the question of the second defendant's costs in the ordinary fashion by exercising her discretion pursuant to s 78A of the County Court Act 1958 (Vic) ('County Court Act'). Her Honour found that the conditions for a Bullock or a Sanderson order had been made out, and 'for reasons of administrative and procedural efficiency' ordered the respondent to pay the second defendant's costs of the proceeding directly.[12]

68 The respondents seek leave to appeal her Honour's decision on two grounds. First, that the trial judge misconstrued, and therefore failed to properly apply, s 134AB(28) of the Act. By operation of that section the respondents assert that her Honour should have ordered each party to the proceeding to bear its own costs. Secondly, that, having decided to exercise the ordinary discretion as to costs, the circumstances of the case did not support the learned trial judge making a Sanderson order.

69 When the respondents filed their summons, the question whether, in cases such as this, the application of s 134AB(28) was properly limited to costs orders between a plaintiff worker and a defendant employer, or whether it also extended to any third party defendant involved in the same proceeding was the subject of some uncertainty. The recent decision of the Court of Appeal in Spotless Services Australia v Herbath[13] has confirmed its limited application. After thoroughly reviewing the legislative history and purpose of the section, Mandie JA stated that the sub-section:

is concerned to govern costs, only as between the worker on the one hand and the employer, Authority or self-insurer on the other, of a relevant proceeding, or that part of a relevant proceeding, brought in respect of a cause of action against an employer.[14]

70 Therefore, the respondents must fail in their contention that the trial judge fell into error when deciding not to apply s 134AB(28) of the Act to the costs of the second defendant. Her Honour properly approached the issue of those costs by applying her ordinary discretion pursuant s 78A of the County Court Act.

71 The conditions under which a Sanderson order will be made have been recently summarised by the Court of Appeal in Berrigan Shire Council v Ballerini (No 2). In short, an order will not ordinarily be made unless:

(a) the plaintiff's claims against the two defendants are interdependent or essentially alternative claims; and

(b) it is reasonable for the plaintiff to have joined the successful defendant and the conduct of the unsuccessful defendant has been such as to make the order just.[15]

72 It was open to the trial judge to find that the appellant's claims against the two defendants were interdependent or alternative in the necessary sense. Her Honour correctly observed that '[t]he breaches alleged against each defendant were different, but the alleged breaches arose from a set of facts that were closely connected.'[16] Furthermore, the respondents conceded that it was reasonable for the appellant to have joined the second defendant to the proceeding.[17]

73 These two facts being established, the respondents' complete denial of liability and their decision to seek contribution from the second defendant should the appellant be in any way successful, was sufficient conduct on their part to make a Sanderson order an appropriate exercise of her Honour's discretion.[18]

74 No error of principle having been identified in the costs orders made by the learned trial judge, the respondents' application must fail.

75 I concur in what has fallen from the learned Chief Justice and Justice Emerton in all respects.

[1] Paragraphs (m), (n) and (o) referred to matters that did not become relevant at trial.

[2] At [9], referring to McLean v Tedman and Brambles Holdings Limited [1984] HCA 60; (1984) 155 CLR 306; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529.

[3] [1991] HCA 23; (1991) 173 CLR 33, 41.

[4] Coyne v Citizen Finance Ltd (1991) 172 CLR 221, 227-8 (Toohey J, Dawson and McHugh JJ agreeing); see also Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594, 595 (Herring CJ, O'Bryan and Dean JJ), quoted in Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 327 (McHugh J).

[5] [1985] HCA 34; (1985) 59 ALJR 492, 493-4.

[6] Her Honour told the jury that the respondents had to prove not only that Mr Fassbender owed a duty to take care for his own safety, and that he breached that duty, but also that it was the breach of that duty by Mr Fassbender which was a cause of his injury, loss and damage.

[7] [1985] HCA 34; (1985) 59 ALJR 492, 494.

[8] [2007] VSCA 307, [4] referring to Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, 511-513 and Progress and Properties v Craft [1976] HCA 59; (1976) 135 CLR 651, 672.

[9] Spassked Pty Ltd v Commissioner of Taxation [2003] FCAFC 282; (2003) 136 FCR 441, 478; [2003] FCAFC 282; (2003) 203 ALR 515, 550 (Hill and Lander JJ).

[10] Fassbender v H.W. & M.T.A. Bohlmann & Anor (Ruling #3) [2009] VCC 136 (Unreported, Her Honour Judge Davis, 12 March 2009) ('Fassbender').

[13] [2009] VSCA 285 (Unreported, Buchanan, Mandie JJA and Byrne AJA, 9 December 2009).

[14] Ibid [49] (Buchanan JA and Byrne AJA concurring). See also Papadopoulos v M C Labour & Anor (No. 3) [2009] VSC 183 (Unreported, Beach J, 12 May 2009) [15].

[15] [2006] VSCA 65 (Unreported, Callaway, Chernov and Nettle JJA, 23 March 2006) [41]. See also State of Victoria v Horvath (No 2) [2003] VSCA 24 (Unreported, Winneke P, Chernov and Vincent JJA, 4 April 2003).

[18] Central Goldfieds Shire v Haley (No 2) [2009] VSCA 203 (Unreported, Neave and Redlich JJA, Pagone AJA, 24 June 2009) [9] (Redlich JA. Neave JA and Pagone AJA concurring).