Kenyon v Barry Bros Specialised Services Pty Ltd [2001] VSCA 3

5. The evidence before the jury was that, during the course of the operation at the Coca Cola premises, the hose frequently became blocked. This was apparently due to the coarse nature of the sandy product being cleared from the tank and the length of hose through which it had to travel before reaching the receptacle on the truck. The evidence also indicated that the appellant was expected to clear these blockages by one of a number of methods in which he had been instructed by Dagg. Depending upon the nature and extent of the blockage, the methods capable of being employed were "rolling the hose", striking it forcefully with a pick handle or some similar implement, lifting the hose at the point of blockage and throwing it forcefully to the ground, or, if necessary, uncoupling the hose length by length and using the pump motor to apply the necessary force to clear the blockage. This last method, so the evidence indicated, was not generally favoured because it took too much time.

8. The appellant said that although the normal procedure for unblocking the hose was uncoupling it, he was instructed by Dagg on this day to "walk up and down the hose belting it on to the ground" to create air turbulence within the hose and thus to release the sand. He said he did this on numerous occasions by bending down, picking up the hose at the point of blockage towards his chest, and then by lifting it higher in what he described as a "clean and jerk" weight-lifting action before slamming it with force into the ground. Because the hose was solidly blocked with sand, it was heavy at the point where he was lifting. He could not say what the weight was with any precision, but he described it as being as heavy as "a bag of wheat". He said that because the pump motor was still operating, the hose was vibrating as he lifted it - "swinging and jarring like a big heavy snake". It was in the course of one of these lifts of the hose that the appellant suffered his injury. He said: "I was bending down and got the first lift under arm on the hose, went to throw it up and my back has given in on me. I went to throw it up on my chest and get it over my head and my back has given in".

11. Evidence was given by a consulting engineer, Mr Clifford Purdey, to the effect that this method of clearing blockages in the hose was unsatisfactory and that depending upon the extent of the blockage and the height of the lift, the weight could be "very heavy" and "in anybody's terms ... highly likely to cause injury".

14. The appellant's case at trial was founded upon negligence and breach of statutory duty. In support of the former, it was contended that the system in accordance with which he was required to work was patently unsafe and exposed him to the risk of the injury to which he succumbed. The statutory duty which the appellant alleged had been breached by the respondent was the duty to comply with the manual handling regulations promulgated pursuant to the Occupational Health and Safety Act.

17. The defence which the respondent made to these claims was a robust one. Initially, it was suggested to the appellant in cross-examination that in seeking to unblock the hose in the manner he did, he was "on a frolic of his own" behind the back of Dagg and by-passing the usual and proper method of "uncoupling the hose". It was suggested that it was never part of the respondent's system that assistants were required to hit the hose with implements such as a crowbar, or lift the hose and slam it on to the ground. It was further suggested that the appellant was "making it up" and that he had not reported an injury on the day in question. These assertions were denied and, in any event, appeared to be in conflict with the respondent's pre-trial discovery documents. Later in cross-examination, it was put to the appellant that, amongst others, there was a method employed of "picking up the hose to chin height and flipping it to the ground". When Dagg gave evidence, he admitted that he was the person in charge of the operation and gave directions to the appellant to "try and keep the product moving within the hose" by "lifting it" at the point of blockage and "banging it on the ground". He said that on the day in question the hose had "blocked solid", and the best way to deal with it was to "bring it to knee level ... you just pick it up and throw it down". He agreed that it was "no good just lifting it and dropping it". Rather, he said: "You pick it up and throw it back on the ground - yes, you try to". He agreed that the more force applied in this way, the better chance of creating the air turbulence needed to clear the blockage. He further agreed that the appellant on the morning had worked for "quite a long time lifting the hose up and banging it on the ground". He said, however, that he was in the filtration tank and could not see what the appellant was doing, but that he would only use the "uncoupling method" if the hose could not be unblocked in some other way because that method required two people and it was necessary to stop the motor on the truck. Dagg said, however, that he had never seen anyone lift up the hose to chest level or beyond in the manner described by the appellant.

20. In response to the suggestion that the appellant was "making it up", the trial judge permitted the appellant to tender in evidence the respondent's "Accident Report Form" and the "Accident Investigation Report". These documents were completed by the appellant and the respondent during the week following 6 December 1996 and each recorded that the appellant had suffered injury on that day while "bending over lifting heavy hoses".

23. In the event the jury found the respondent had been negligent and in breach of its statutory duty. In accordance with the relevant provision of the Accident Compensation Act, it assessed "pecuniary loss damages" at $217,800 and "non-pecuniary loss damages" at $125,000. However, the jury found that the appellant was guilty of contributory negligence and reduced his damages on that account by 85 per cent. After making certain deductions required by the Act, the trial judge entered judgment for the appellant in the sum of $47,548 comprising $31,918 for pecuniary loss damages and $15,630 for non-pecuniary loss damages.

26. The appellant has appealed against the verdict insofar as it related to contributory negligence and apportionment. The grounds relied upon are that the verdict was perverse; that the judge erred in leaving the issue of contributory negligence to the jury; and that the judge failed to give adequate instructions to the jury in respect of the issues of contributory negligence and apportionment. No issue has been raised on the appeal about the jury's finding of negligence and breach of statutory duty or the damages assessed.

29. In support of the grounds, Mr Adams, who appeared with Mr Misso for the appellant, submitted that there was no basis in the evidence upon which the jury, properly instructed, could find contributory negligence on the part of the appellant. It was contended that the evidence disclosed the system of work in which the appellant was engaged when he suffered injury was one which was devised by and had the blessing of the respondent. No reasonable jury could find, so it was submitted, that he was failing to take care for his own safety by lifting the hose to chest height or beyond when he was required by the employer to unblock the hose by lifting it and throwing it on to the ground. No instructions were given to him which forbade him from lifting beyond a certain height, and, thus, to suggest that he was in breach of his obligation to take reasonable care for his own safety, by engaging in excessive lifting, was, in reality, to delegate to him the employer's responsibility of devising the appropriate system of work and to saddle him unfairly with responsibility for errors of judgment, inadvertence and inattention, which were inherent in the method chosen by his employer. Furthermore, Mr Adams submitted, even if there was a basis upon which the jury could find that the appellant had departed from the standard of care which the law expected of him, the jury's apportionment of 85 per cent/15 per cent against the interests of the appellant was perverse, particularly when the jury had concluded not only that the respondent was in breach of its common law duty to the appellant, but also was in breach of its statutory duty to ensure that its methods of lifting and manual handling in the work-place were, so far as was practicable, safe and without risks to health and safety.

32. Although Mr Adams submitted that the learned judge was in error in failing to accede to his application to remove the issue of contributory negligence from the jury, that ground was not strongly pressed. Indeed, the application had only been made after the conclusion of the address of counsel for the respondent, and the judge was in my view clearly correct in declining to accept the application in those circumstances.

35. Mr Gorton, who appeared with Ms Galpin for the respondent, submitted that there was evidence upon which the jury were entitled to find contributory negligence and upon which they could apportion the blame in the manner in which they did. He correctly pointed out that this Court was required to take a view of the evidence most favourable to the respondent and should not lightly interfere with the jury's verdict on issues of contributory negligence and apportionment. He contended that although the system employed for clearing blockages in the hose was a "rough and ready one", it was, nevertheless, open to the jury to conclude that insofar as it involved lifting the hose and bouncing it on the ground, it did not contemplate or countenance the method which the appellant had employed of lifting it beyond his head in the manner which he described. Such a method, so it was submitted, was so patently fraught with risk of injury that the jury was entitled to find that, in employing it, the appellant was departing from the standard of care required of him and, indeed, departing from it to such an extent to entitle the jury to find that he was, in a major sense, the author of his own injury.

38. I must confess that, at first blush, I was attracted to Mr Adam's submission that there was no basis to be found in the evidence upon which the jury's conclusion that the appellant was contributorily negligent could be supported. The primary thrust of the respondent's case at trial was that the jury should decline to accept the appellant's evidence that he was injured in the manner which he described and should thus conclude there was no breach of common law or statutory duty which was a cause of the appellant's injury. Contributory negligence was put almost as an afterthought by counsel for the respondent at the conclusion of her address as "a question you are to consider that has been suggested to you by the judge". Counsel went on to say that if the injury had happened in the manner described by the appellant, then "he is almost totally at fault" because "we could not have known that he was going to do the stupid thing" and that "even if you thought our negligence was a cause, you would have to say that he was [more than half responsible]". It was in this context that it seemed to me that if the jury found that the respondent was in breach of the common law and statutory duties by implementing and encouraging a system of work which contemplated the clearing of blockages in the hose by lifting it and throwing it hard to the ground, it would be inconsistent with such a finding to then conclude that the appellant was partly responsible for his own injuries by lifting the hose beyond the limits which were not prescribed. Such conduct might then be described as mere inattention, inadvertence or misjudgment which it was part and parcel of the respondent's duty to take into account in devising and maintaining a proper system of work[1].

41. Upon reflection, however, I think Mr Gorton is correct in his submission that it was open to the jury to find, on the evidence and the instructions given to them, that the appellant was contributorily negligent, either because he should have been aware that the repetitive and strenuous lifts which he was performing would expose him to the risk of injury to which he succumbed, or, alternatively, because he failed to employ one of the less stressful methods available to him. No complaint was or is made about the instructions which the learned judge gave to the jury on this issue. Indeed, they were very favourable to the appellant. However, his Honour instructed the jury that they could find contributory negligence if, inter alia, they were satisfied that the method adopted by the appellant involved foreseeable risk of injury to himself and that there was another method available which would have avoided that risk.

44. For my own part, however, I am satisfied that the jury's attribution of 85 per cent of the responsibility to the appellant was not open. In so concluding, I am, of course, conscious that a finding on the question of apportionment is a finding upon "a question not of principle or of positive findings of facts or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice as to which there may well be differences of opinion by different minds"[2]

47. I am also conscious that such a finding, even if made by a judge, is not lightly to be reviewed by an appellate court; and that the task of an appellant is even more difficult where the finding has been made by a jury[3]. But even accepting the injunction that great care is to be shown before interfering with the finding of apportionment made by the jury, I am nonetheless compelled to the conclusion that a finding of 85 per cent responsibility on the part of the appellant was not, in the circumstances of this case, reasonably open to the jury. Once the jury had concluded that the respondent was in breach of its common law duty not to unreasonably expose the employee to unnecessary risk of injury, and was also in breach of its statutory duty imposed by the manual handling regulations, by employing a system of lifting heavy hoses and throwing them to the ground, I cannot accept that it was then open to them to find that the appellant was more than five times more responsible for his injury than was the respondent, simply because he employed the tolerated system so provided with excessive zeal and enthusiasm; or failed to choose a less strenuous and, on the evidence, less effective or less favoured method.

50. I am able in this case to reach this conclusion more easily because of the view which I have that there were deficiencies in the charge given to the jury on these significant issues. In reaching this conclusion, I do not wish it to be thought that I am being unduly critical of this very experienced trial judge, to whose charge no exception was taken. It should not be thought that simply because the question of apportionment involves matters of proportion and relative emphasis that juries do not need some instructions as to how to go about their task. In this case the learned trial judge's charge on this issue was, essentially, confined to the form of the question which the jury was requested to answer, which in turn was a recitation of the relevant provision of the _Wrongs A_ct. The jury were not told, as I think was necessary in this case, that the relevant question required them to make a comparison of the degrees of culpability of the appellant and the respondent in terms of their respective degrees of departure from the standards of care expected from them and the relevant importance of their culpability in causing the injury[4]. Furthermore, in this case it was, I think, necessary for the jury to have been told that, in considering questions of contributory negligence and apportionment, to begin their considerations by bearing in mind that they had already concluded that the respondent had failed to discharge its obligation to take reasonable care for the safety of its employee and was in breach of its statutory duty imposed by the relevant regulations. Such directions were necessary in this case because the jury needed to guard against the possibility of confusing contributory negligence of the plaintiff and the significance of any departure by him from the standard of care which the law imposed on him, with mere inadvertence, inattention or misjudgment on his part in complying with a rough and ready system of work in which such inattention or misjudgment may be a ready component[5].

53. Notwithstanding that the failure to take exception to these deficiencies in his Honour's charge is a significant factor in determining whether a verdict should be set aside, it is not necessarily fatal to such a result. In the long run, the Court's jurisdiction to order a new trial must depend upon the demands of justice[6]. The burden lies upon the party failing to take exception to demonstrate that, notwithstanding, there has been a substantial miscarriage.

56. In this case, I have come to the view that the deficiencies in the charge which I have identified, associated with the jury's verdict on apportionment, justifies the conclusion that the verdict should be set aside and that there should be a re-trial on the issues of liability. Mr Gorton submitted that, if the court were to come to the conclusion to which I have come, there should be a re-trial on the issue of damages as well. However, he was unable to point to any reason to suggest that the jury's assessment of damages was unreasonable or other than an award which was in accordance with the evidence. For my own part, I think that the re-trial should be limited to the issues of negligence, contributory negligence and apportionment. Although Mr Adams submitted that the Court ought to determine these issues itself, I do not think that such a course is appropriate in the absence of consent of both parties and where, in any event, a resolution of the issues will be, as they were at this trial, very much attended by matters of credit.

59. Accordingly, I would allow the appeal, set aside the judgment and the verdict insofar as it relates to the issues of negligence, contributory negligence and apportionment. I would order a new trial in respect of those issues.

71. The formal orders of the Court will be as follows:

The verdict, insofar as it relates to the issues of liability, is set aside, and, with it, the judgment.

We direct that there be a new trial limited to the issues of negligence, contributory negligence and apportionment.

We reserve to the discretion of the judge hearing the new trial the question of costs of the first trial.

We direct that a certificate issue to the respondent in respect of the cost of this appeal pursuant to the Appeal Costs Act.

[1] cf. Bankstown Foundry Pty. Ltd. v. Braistina [1986] HCA 20; (1986) 160 C.L.R. 301 at 309.

[2] British Fame (Owners) v. McGregor (Owners) [1943] A.C. 197 at 201.

[3] Podrebersek v. Australian Iron and Steel [1985] HCA 34; (1925) 59 A.L.J.R. 492 at 494; Coleman v. La Trobe University, Court of Appeal, unreported, 8 September 1995, per Hayne, J.A. at 19.

[4] cf Podrebersek (supra) at 494; Butler v. Rick Cuneen Logging Pty. Ltd. [1997] 2 V.R.99.

[5] cf. McLean v. Tedman [1984] HCA 60; (1984) 155 C.L.R. 306 at 311-3; Kulczycki v. Metalex Pty. Ltd. [1995] VICSC 22; [1995] 2 V.R. 377 at 410; Bankstown Foundry Pty. Ltd. v. Braistina (supra) at 310.

[6] General Motors-Holden Pty. Ltd. v. Moularas [1964] HCA 39; (1964) 111 C.L.R. 234 at 242-3; Coleman v. La Trobe University (supra) at 21.