Mayhew v Lewington's Transport Pty Ltd [2010] VSCA 202

2 On 8 July 2002, Mr Shane Mayhew, the appellant, was employed by Lewington's Transport Pty Ltd, the respondent, as an interstate truck driver. He had been so employed since September 2001. On that day (8 July), the appellant was attempting to descend steps between the rear of the cabin of the prime mover and the front of the first trailer. The appellant had been up on the truck between the rear of the cabin and the front of the first trailer for the purpose of hooking lines up between the truck and the trailers he was carrying. Whilst descending the steps, the appellant fell and suffered injuries affecting his back and right leg.

3 The appellant sued the respondent for damages in respect of his injuries pursuant to s 134AB of the Accident Compensation Act 1985. On 18 March 2009, the jury returned a verdict for the appellant on the issue of negligence and assessed the appellant's pain and suffering damages in the sum of $325,000 and the appellant's pecuniary loss damages in the sum of $1,136,765. However, the jury also found that there was contributory negligence and assessed the appellant's contributory negligence at 30%.

4 On 9 June 2009, judgment was entered in accordance with the jury's verdict, in the sum of $762,825.[1]

5 The appellant appeals in relation to the jury's finding of contributory negligence. In short, the appellant contends that it was not open to the jury to find that there was any contributory negligence; alternatively, the appellant contends that the finding of 30% was "perverse and against the weight of the evidence". Additionally, the appellant makes complaint about the charge to the jury on the issue of contributory negligence.

6 The appellant's grounds of appeal are as follows:

1. The issue of contributory negligence should not have been left to the jury.
2. The learned trial judge was in error in ruling that there was evidence on which a jury could make a finding of contributory negligence.
3. The finding of any contributory negligence made by the jury was not open and was perverse.
4. The amount of contributory negligence of 30% found by the jury was perverse and against the weight of the evidence.
5. The instructions of the learned trial judge to the jury on the issue of contributory negligence were inadequate.

7 The trial commenced on 10 March 2009. The appellant gave evidence concerning, amongst other things, the circumstances of the accident, complaints he had made concerning the truck and the layout of the truck generally, with specific reference to the area at the rear of the cabin and the front of the first trailer.

8 The only other witness to give evidence concerning the issues in this appeal was a Mr Thomas Allen, the regional service manager of Kenworth Trucks in Victoria. Mr Allen gave evidence that the truck had been manufactured with two grab rails fitted at the rear of the cabin to assist the driver in negotiating the steps from which the appellant fell.[2] The respondent did not call any witnesses on the issue of liability.

9 At the conclusion of the evidence, Senior Counsel for the appellant (plaintiff[3]) submitted that there was no evidence of contributory negligence. Following brief argument, the trial judge reserved leave to the plaintiff to argue the issue of whether there was any evidence of contributory negligence after the jury returned its verdict and in the event that the jury made a finding of contributory negligence.

10 Counsel for the respondent (defendant) then addressed the jury, followed by counsel for the appellant (plaintiff). It was submitted on behalf of the respondent that there was no negligence and that the cause of the accident was the appellant "letting go of secure handholds because he thought his foot was on [step two] when he could not possibly have had his weight securely on anything because there was no foothold ... and his foot just missed the step altogether". Alternatively, it was submitted for the respondent that if there was any negligence on the respondent's part, the plaintiff was guilty of contributory negligence of at least 50%. On the other hand, for the appellant it was submitted that there was negligence both in relation to the size and positioning of step two, the failure to provide secure handholds (a rail) and the failure to heed complaints. Additionally, it was submitted for the appellant that there was no contributory negligence.

11 Her Honour then charged the jury. During her Honour's charge, her Honour said, in respect of contributory negligence:

If you were to find contributory negligence you would reduce his [the plaintiff's] damages to such extent as you think just and equitable, having regard to his share of the responsibility. You would consider how important was the plaintiff's conduct on the one hand and on the other hand, how important was the defendant's conduct. We express that responsibility in a percentage sense to make sure it all adds up to 100%.

Here [Senior Counsel for the plaintiff] has urged you that you would not find contributory negligence at all, and he did not suggest a specific percentage. [Senior Counsel for the defendant] suggested if you get to question four [the apportionment question] you should find that the plaintiff was at least 50% to blame for his injuries. I am not going to suggest any percentages to you but I make this clear. If you were to find that Mr Mayhew was contributorily negligent you assign to him only such percentage as you think represents his fault. Similarly, you only assign to the defendant what you regard fairly and reasonably as its fault.

12 This direction was given very shortly before the end of day five of the trial. At the conclusion of day five, exceptions were taken. Senior Counsel for the appellant (plaintiff) raised what he said were exceptions in relation to her Honour's charge on the issue of negligence and contributory negligence. The submissions made to her Honour were, to say the least, brief. Her Honour was referred to the High Court's decision in McLean v Tedman.[4] Senior Counsel for the plaintiff identified a passage in McLean which he said "relates to mere inadvertence not amounting to contributory negligence". Her Honour undertook to look at the passage overnight.

13 On the morning of day six of the trial, there was further discussion between her Honour and counsel for the parties concerning her Honour's charge - and specifically with reference to her Honour's charge on the issues of negligence and contributory negligence. This discussion culminated in her Honour asking Senior Counsel for the plaintiff whether the following redirection would "pick up both [his] concerns":

The defendant owed a duty to take positive steps to protect the employee against injury. In determining whether the defendant was in breach of that duty you must ask yourself whether the defendant took reasonable care to provide a safe system of work and safe plant and equipment which would protect the worker from injury due to mere inadvertence.

14 Senior Counsel for the plaintiff indicated that such a redirection would address the exceptions he had taken. Accordingly, after further debate, her Honour redirected the jury as follows:

I just want to remind you of a couple of critical legal matters that will govern your consideration of negligence and contributory negligence. You will remember that I directed you that as a matter of law the defendant, Lewington's Transport, did owe a duty of care to the plaintiff, Shane Mayhew. Here, as Mr Mayhew's employer, the defendant owed a duty to take positive steps to protect the employee against injury. In determining whether the defendant was in breach of that duty you must ask yourselves whether the defendant took reasonable care to provide a safe system of work and safe plant and equipment which would protect the employee from injury due to mere inadvertence. Remember that the test is an objective one. That is to do with reasonableness.

15 No further relevant exception was taken by either party. Additionally, no further direction or redirection was sought by the appellant in relation to the issue of contributory negligence. Later on that day (the sixth and final day of the trial), the jury returned the verdict which we have already recited - including the finding of contributory negligence in the amount of 30%.

16 Subsequently, her Honour heard argument, pursuant to the leave reserved, as to whether there was any evidence upon which the jury could conclude that there was contributory negligence. At the conclusion of submissions (9 June 2009), her Honour ruled against the appellant (plaintiff). Her Honour said:

Having regard to the fact that I have to assess the evidence most favourably to the defendant ... and that I simply need to consider whether there was any evidence upon which a reasonable jury properly directed could have returned a verdict for the defendant ... [i]t seems to me that there was evidence ... from which a reasonable jury could have returned a verdict of contributory negligence.

Where the conduct of the plaintiff fell on the continuum from mere inattention or temporary inadvertence to negligence is really properly a matter for the jury. I do not accept that the evidence is as clear-cut as the plaintiff submits in terms of the getting down, the commitment, the grip, et cetera. It follows that it was appropriate for contributory negligence to be left to the jury.

17 Whilst there were photographs tendered at trial which have the capacity to aid in the understanding of the appellant's evidence, the critical evidence so far as the issue of contributory negligence is concerned was that given by the appellant.

18 There were two steps between the rear of the cabin and the front of the first trailer. The appellant gave evidence that the gap between the top step (step one) and the bottom step (step two) was 60 centimetres. He also gave evidence that the gap between step two and the ground was 30 centimetres. Between the steps there was a cylindrical shaped tank which protruded into the vertical plane between the bottom of step one and the top of step two so that step two was obscured by the tank to someone standing on step one. Further, the appellant gave evidence (which was supported by the photographs tendered at trial) that step two was recessed and not vertically aligned with step one, requiring a person descending the steps to lean out and "go looking for a step to step down onto". Additionally, as the photographs show, step two was shorter and narrower than step one, having sides that were cut away at an angle.

19 So far as handholds were concerned, the appellant gave evidence that there was a black rubber strip behind the cabin that he attempted to hold onto with his right hand whilst he tried to hold onto the trailer with his left hand in the area of a "slot" he described that existed at the front of the trailer. There were no handrails in the vicinity of the steps, notwithstanding Mr Allen's evidence that the particular model of truck was manufactured with a handrail.

20 In evidence in chief, the appellant described the happening of the accident in the following terms:

What happens next?---You are holding on to, like I said, the rubber and the canvass strip and then I used to use my right leg to come down and you have got to squat on your left knee. You hold on and you squat down and you let your right leg go down the tank to touch the step and then when you think you have got the step you are obligated, then you just let yourself go on to that bottom step.

At the stage when you are trying to locate the step have you made the commitment in terms of - at the time when you are getting on to the step are you able to retrieve yourself up if you miss the step?---Very difficult. You are committed. You are going down.

What happened?---I thought I had my foot on the step and my foot slid past. I let go, thinking I was on the step, and I just travelled down to the gutter on my right leg.

At what force did you hit the gutter?---About 120 kilos of dropping weight into the gutter which jarred. Extreme. You come to a sudden stop.

21 When asked in evidence-in-chief how many times he had negotiated the steps, the appellant described having to negotiate them six times each time he did a drop-off. Most trips involved multiple drop-offs, with three drop-offs every second or third trip. In cross-examination, he agreed that he would have climbed down the steps "hundreds of times" - and on each occasion "without having this sort of accident". Further, he agreed that on each of the occasions he had climbed down the steps before the accident, he had been able to grip onto the trailer and the rubber strip and hold on as he moved from step one to step two and then to the ground.

22 The appellant was cross-examined about his ability to hold on. He was asked and answered the following questions:

You were able to grab the hold on the trailer and the rubber flap on the back of the cab?---To a point.

Well, you held onto them, didn't you?---To a point.

I am sorry, what do you mean by "to a point"?---You could only sort of like wrap your hands around it. You couldn't actually grab it.

When you were getting up were you able to grab it?---To a point. You could only just - it wasn't grabbing it - like, you couldn't wrap your fingers around it like that (indicates with the Bible); you had to grab it like that (indicates).

23 The appellant was cross-examined about the circumstances of the accident. It was suggested to him that he simply let go of his handholds. It was suggested to the appellant that he was simply careless. The appellant denied this suggestion and said that he let go because he believed his foot was touching step two at the time. The appellant gave the following evidence in cross-examination:

As you went down, as I understand your evidence - correct me if I am wrong - you missed the bottom step altogether?---Yes.

If you were descending a ladder from the roof of the house or something like that would you let go with your hands from whatever you were holding on to before you had your weight on the step below?---The ladder is different to this.

Yes, but as a general approach you wouldn't let go until you had both feet on a step of the ladder?---Until I had a foot on the next step.

So why did you let go when you didn't have your foot on the bottom step of the ladder?---Because I believed my foot was touching the bottom step when I slid it down to touch it.

But it wasn't. Are you able to say what gave you that belief when in fact you know it wasn't touching the bottom step?---Well, I might have had my foot on the bracket, the tank strap, that gave me the false idea. I don't know.

So before you had weight firmly on the bottom step you let go?---Yes.

Do you agree that that was careless of you?---No.

When you had got down previously had you ensured that you had weight on the bottom step before letting go?---No. I just did it. It was just a - the way you did it.

It wasn't that your hand slipped on anything or you lost grip on anything; you deliberately, consciously let go?---I didn't deliberately, consciously let go, no.

Did your hands slip on something?---No.

What caused you to let go? Wasn't it a decision you made, not a carefully thought out decision but you are getting down and you released your grip?

---That I had my foot on the step.

You released your grip. It wasn't as if your hands slipped off anything?---No, it didn't slip.

It wasn't as if what you were holding on to suddenly moved and distracted you?---No.

You just let go?---Yes.

And you missed the step completely and your weight came down hard on your right leg?---That's right.

24 The appellant was re-examined about the circumstances of the accident, the handholds and his ability to maintain a grip. He was asked and answered the following questions:

You described yesterday how you held yourself with your hands, your left hand wrapped around that indentation on the trailer and your right hand on that rubber wind deflector?---(The witness nodded).

Perhaps I will ask you to describe it. From the moment of standing on the top step and lowering yourself what happens with your hands? I mean, obviously your body is being lowered. Are your hands maintaining their same position as your body is being lowered with your right foot going towards the bottom step?---The hand acts as a guide so if you have got your hands in the groove of the trailer, like in the photo, and the black, your hands slide down with it, with the rubber. You just keep your hand on it and just slide down, let them slide. You don't let go and jump off.

You say that it's not like holding onto a ladder as you lower yourself down step by step?---Yes.

Why isn't it the same; what's the difference?---Because the steps are not in line. They are not in line with where you come down off the truck so you have got to move your foot around to find the step and the step is - when you slide your foot down it usually hits either the step or the bracket that holds the tank on.

...

You said that's what you believed your right foot hit?---I think that's what I thought was the step when I put my foot on it. That's what I thought it was.

25 A little further on in re-examination, the appellant said:

When you are standing on the top step, both feet on the stop step, to find the bottom step and to get an idea where it is you have got to push yourself out while you are holding on to give you an idea where the step is.

26 Later on in re-examination, the appellant was asked about the quality of his grip. The questions began in relation to the appellant's left hand grip and then moved to the issue of his right hand grip. He was asked and answered the following questions:

To what extent is the grip only partial?---Just your fingers, tips of your fingers.

How much have you got in?---To, like that (indicates). Like that in behind.

That's the first joint, the second joint and the third joint of your fingers?---Yes.

How many joints are you in?---It would be up to your middle joint.

Your finger is halfway in?---Yes.

So that's your left hand grip?---Yes.

Can you demonstrate using the corner pretending it's the side of the truck. Use your right hand and demonstrate using that face?---That's how you grab on to it.

What sort of grip does that give compared to what's on your left hand?---Not good. It's only - acts as a slide. You can't grab it, you can't physically grab it. You try grabbing something like that and you just can't grab it.

Your right hand of course is little finger up?---Like that (indicates).

So it's little finger up?---Yes.

And it's a piece of moulded rubber?---Yes.

To what extent is the grip that you are able to get with that sufficient to stop you falling, for example?---None. It's just a guide. You captain (sic, cannot) grab it. you just use it as a slide and you slide down.

Forget using it as a guide but if you had to pull yourself up - I am not saying pull yourself up like a gymnast but pull yourself up - you know how you pull yourself up on the ladder, you don't literally pull yourself up using your legs but you are exerting a pulling force climbing a ladder normally?---Yes.

Would you agree with that?---Yes.

To what extent would you be able to exert a pulling force with your hands upside down on the curtain, left hand on the curtain and right hand on the rubber spoiler?---The left hand on the curtain, you get more weight into the curtain but not on the truck.

In terms of stopping yourself falling does the right hand, right arm do anything to stop you falling?---No.

27 In ground 3 it is contended that the finding of any contributory negligence was not open and was perverse. In substance, the appellant contends that no reasonable jury properly instructed could have found the appellant guilty of contributory negligence. If it was not open to the jury, or unreasonable for the jury,[5] to make a finding of contributory negligence, then the appeal must be allowed. It would then be otiose to consider whether or not the trial judge should have left the issue to the jury or whether she erred in ruling that there was evidence on which the finding could stand.

28 On the other hand, if it was open to the jury to make a finding of contributory negligence, then grounds 1 and 2 must fail. In the circumstances, the arguments raised by grounds 1, 2 and 3 fall to be determined by resolving the question of whether it was open to the jury to make a finding of contributory negligence.

29 In personal injury in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd,[6] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:[7]

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.[8]

30 Whilst the facts of earlier cases cannot be determinative in this case of whether the appellant's actions on the day in question amounted to contributory negligence on the one hand or some mere inadvertence, inattention or misjudgement, some previous cases are instructive. For example, in McLean v Tedman,[9] the High Court had to examine a finding that a garbage collector, who ran across a road from behind the garbage truck and who was struck by a motor vehicle travelling on its correct side of the road and which could have been observed by a person in the worker's position before he crossed the road for a distance of approximately 200 metres, was guilty of contributory negligence. The worker sued his employer and the driver of the motor vehicle. Both defendants were found liable. Consistently with authority, the Court held that the issue of contributory negligence had to be approached on the footing that the employer had failed to discharge its obligation to take reasonable care for the worker. In that case, it was the employer's failure to discharge its obligation to provide a safe system of work to take appropriate precautions against the risk of injury arising from the motorist's negligence and the worker's failure to observe an oncoming vehicle as he carried out his allotted task. Mason, Wilson, Brennan and Dawson JJ concluded that the worker's conduct amounted to mere inadvertence, inattention or misjudgement, and there was no contributory negligence.

31 In Davies v Adelaide Chemical and Fertiliser Company Limited,[10] the High Court had to consider the case of a worker whose duty it was to lubricate a machine consisting of a slowly moving conveyor belt supported by rollers. It was the worker's practice to grease the rollers while the belt was in motion. This involved some risk, but was not highly dangerous. The worker was never instructed to have the machine stopped while he was greasing it, but it would have been stopped if he had so requested. On the day in question, the worker was reaching under the moving belt to grease a roller when his right arm became caught between the belt and the roller and he suffered injury. The worker sued his employer and established an entitlement to damages for breach of statutory duty. The case was decided at a time when contributory negligence was a complete defence. Latham CJ, Dixon and McTiernan JJ held that the evidence did not support a finding of contributory negligence that had been made below. Dixon J said:[11]

At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and longstanding practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.[12]

32 In The Commissioner of Railways v Ruprecht,[13] the High Court had to consider a case involving an employee who was hit by a moving railway wagon. The employee did not look along the railway line before he stepped on it because he did not expect the wagon (which was moving quietly) and he was preoccupied with his duties. By majority, the Court concluded there was no contributory negligence. Gibbs J said:[14]

However, in deciding whether the respondent [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention borne of familiarity and repetition, and the man's preoccupation with the matter in hand, with a view to deciding "whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man": Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24, 37, per Windeyer J.

33 Finally, in Czatyrko v Edith Cowan University,[15] the High Court had to consider the case of an employee who was required to load and stack boxes on the back of a truck. The truck was fitted with a mechanical lifting platform. When the employee stepped backwards from the tray of the truck to where he expected the platform to be, he fell approximately one metre to the ground and was injured. This occurred because one of the employee's co-workers had lowered the platform without informing the employee. The Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) delivered a joint judgment in which their Honours stated that the appeal raised no question of general principle and depended on its own facts. However, in deciding the case, their Honours said:[16]

In the present case, the appellant [worker] did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping onto it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent [employer]. This it failed to do in this case. The appellant's attempt to step onto the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than " mere inadvertence, inattention or misjudgement". It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made.

34 Notwithstanding the width of the respondent's plea of contributory negligence,[17] at trial (and before us) the respondent's case was that the appellant was guilty of contributory negligence because he let go of his handholds before ensuring that his foot was securely on step two.

35 The appellant gave evidence that he let go of his handholds thinking that his foot was on step two. No challenge was made to the existence of the belief asserted by the appellant. In our view, the jury was bound to accept the appellant's evidence in this regard: there was simply no dispute concerning the matter at trial. However, even if the jury had not accepted this part of the appellant's evidence, this would not provide any basis for an affirmative conclusion by the jury that the appellant somehow let go without any belief as to the position of his right foot. Such a finding would mean that the appellant did not have such a belief, despite his recognition of the difficulties in using the steps and his previous complaints to his employer about them. In our view, even if one accepted (in the respondent's favour) that the handholds in this case were somehow adequate and that the appellant should not have let go, the present case is a classical case of mere misjudgement not amounting to contributory negligence. It follows that the jury's finding of contributory negligence cannot stand.

36 The respondent required the appellant to perform work which involved climbing up and down the steps on many, many occasions during the course of his employment. The position, alignment and size of step two with its cutaway sides was patently deficient so far as the respondent's obligation to take reasonable care to provide a safe place and system of work. The accident that occurred was one of a kind that was inevitable would occur at some time. The fact that it had not occurred before the day of this accident was not to the point. Nor was it to the point (as was submitted by the respondent) that there was no evidence that the steps were in poor repair or modified from their size and position as manufactured.

37 Even if one accepts the respondent's contention that the appellant should not have let go until he was sure that his foot was securely on step two, this does not provide a basis upon which a finding of contributory negligence could be made. Further, there is no evidence that even if the appellant had not let go, the inadequate grip he had with each hand (as described by him, and unchallenged in cross-examination) would have been likely to prevent his fall. For this further reason, the jury's finding of contributory negligence cannot stand.

38 Additionally, the respondent contended at trial that the reason for the accident was the appellant letting go before ensuring that his foot was firmly on step two. The substance of the respondent's argument was that, unlike the hundreds of times when the appellant had descended the steps before the accident, on this occasion he let go before ensuring that he had a secure footing. The answer to this proposition is to be found in the appellant's evidence in cross-examination when he was asked and answered the following question:

When you had got down previously had you ensured that you had weight on the bottom step before letting go?---No. I just did it. It was just a - the way you did it.

No challenge was made to this answer by the respondent in cross-examination or in final address to the jury.

39 It follows that, in our view, the appeal must be allowed and the jury's finding of 30% contributory negligence set aside.

40 In ground 4, complaint is made that the amount of contributory negligence (30%) was "perverse and against the weight of the evidence". In ground 5, complaint is made concerning the instructions of the trial judge to the jury on the issue of contributory negligence. Having regard to the conclusion we have reached in respect of grounds 1, 2 and 3, it is not necessary for us to express detailed reasons in respect of grounds 4 and 5.

41 So far as ground 4 is concerned, it is sufficient for us to say that if it had been open for the jury to conclude that the appellant was guilty of contributory negligence, then the appellant's attack on the amount of contributory negligence would not have been made out. At trial, the respondent contended that if the jury found that it was negligent, then there ought be a finding of contributory negligence of at least 50%. No submission was made by counsel for the appellant that in the event the jury found there was contributory negligence, the figure of 50% was not open. In Podrebersek v Australian Iron and Steel Pty Ltd,[18] the High Court said:[19]

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] AC 197 at 201. Such a finding if made by a judge is not likely 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] VR 594. In the circumstances[20] to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility[21] for the damage on the appellant himself, and to make the apportionment that they did.

42 So far as ground 5 is concerned, we would not now uphold a complaint of inadequate direction on the issue of contributory negligence. The appellant's trial counsel did not complain of any inadequacy in the charge relating to the distinction between contributory negligence on the one hand, and mere inadvertence, inattention or misjudgement on the other hand.[22] We have no doubt that if a further redirection had been sought, the trial judge would have made this distinction more explicit in her charge. Such exception as was taken resulted in the trial judge giving a redirection in terms specifically approved by counsel below, and without any further relevant exception being taken. In the circumstances, we would not now have allowed this appeal on the basis that her Honour failed to explain explicitly the distinction between contributory negligence and mere inadvertence, inattention or misjudgement or failed to give any other necessary direction with respect to contributory negligence.

43 It follows from what we have said above that, in our view, this appeal must be allowed and the jury's finding of contributory negligence set aside.

[1] This sum was inclusive of interest up to 9 June 2009 and was calculated after the reductions required by s 134AB(25) of the Accident Compensation Act and s 26(1) of the Wrongs Act.

[2] Summary of proceedings, facts and issues, paragraph [13].

[3] Who was not Senior Counsel briefed for the appellant on this appeal.

[4] [1984] HCA 60; (1984) 155 CLR 306.

[5] Cf Shepherd v Felt & Textiles of Australia Limited [1931] HCA 21; (1931) 45 CLR 359, 379 (per Dixon J); Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 442 (per Latham CJ) and The Herald & Weekly Times Limited v Popovic [2003] VSCA 161; (2003) 9 VR 1, 32 [133] (per Gillard AJA). See also Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 522 [8] (per Gleeson CJ).

[6] [1985] HCA 34; (1985) 59 ALJR 492.

[7] At 59 ALJR 493.

[8] See also McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315 (Mason, Wilson, Brennan and Dawson JJ); Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 310 (per Mason, Wilson and Dawson JJ) and Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at 843 [18] (per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).

[9] [1984] HCA 60; (1984) 155 CLR 306.

[10] [1946] HCA 47; (1946) 74 CLR 541.

[11] 74 CLR 551.

[12] See also Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VicRp 42; [1981] VR 421 where the Full Court had to consider a jury's finding of 25% contributory negligence. The Full Court (Kaye J (with whom Young CJ and McGarvie J agreed)) held there was no evidence of contributory negligence fit to go to the jury. In the course of Kaye J's judgment, his Honour cited with approval the passage from Dixon J in Davies to which we have just referred, and stated that it was apposite to the position of Mr Prestinenzi. Whilst it has been said that judges and juries who were required to consider the issue of contributory negligence in earlier times, when contributory negligence was a complete defence, sometimes took a lenient view of what facts constituted contributory negligence (cf Joslyn v Berryman (2003) 214 CLR 522, 588 [15] (per McHugh J)), the Full Court's decision in Prestinenzi shows that the judgment of Dixon J in Davies still has relevant application notwithstanding the fact that contributory negligence is now only a partial defence.

[13] [1979] HCA 37; (1979) 142 CLR 563.

[14] 142 CLR 568.

[15] [2005] HCA 14; (2005) 79 ALJR 839.

[16] At [2005] HCA 14; 79 ALJR 839 [18].

[17] The defence contained nine assertions which were contended to be particulars of contributory negligence, as follows:

(b) Failing to pay any or any proper attention to the activity he was performing.

(c) If the work caused him any difficulty then failing to notify his superior of the same.

(d) If he required assistance then failing to notify his superior of the same.

(g) Failing to ensure that his foot was properly secure before stepping down from the rear of the prime mover.

(h) Failing to maintain a safe and adequate foothold.

(i) Failing to maintain a safe and adequate handhold.

[18] [1985] HCA 34; (1985) 59 ALJR 492.

[20] Our footnote: A claim by a worker in respect of an explosion caused by the worker's failure to properly tighten a screw in a gas pipe.

[22] As to further necessary directions in respect of contributory negligence, see Butler v Rick Cuneen Logging [1997] 2 VR 99, 103 (per Winneke P).