Moller v Trollope Silverwood and Beck Pty Ltd [2004] VSCA 22

12. On 13 May 1994, Mr Bent Ove Eli Moller was injured when an "A" frame ladder on which he was standing collapsed. He sued his employer, Trollope Silverwood & Beck Pty Ltd. Plaintiff and defendant are now respectively appellant and respondent in this appeal from the verdict of a County Court jury and the consequential orders of the trial judge before whom the trial was heard. On 15 April 2002, the jury awarded the appellant $54,755.35 for pecuniary loss damages and $85,000 for pain and suffering. On the following day, her Honour pronounced judgment for the appellant in accordance with the verdict, while deducting the amount of compensation already paid to or on behalf of the plaintiff pursuant to the Accident Compensation Act 1985. The latter amounted to $33,533. The resultant sum of $106,222.35 ($54,755 + $85,000 - $33,533) was then further reduced by 40%, or $42,488.95, to reflect the jury's finding that there was contributory negligence on the part of the appellant as a result of which it was just and equitable that his damages be reduced by that percentage. The addition of interest, agreed at $360, produced the amount ($106,222.35 - $42,488.95 + $360) for which judgment was entered: $64,093.40.

15. By his notice of appeal, which is dated 29 April 2002, the appellant set out 10 grounds of appeal. To these, by leave given by this Court on 24 November 2003, a further ground - ground (aa) - was added; and on 25 November leave was likewise given to add to the end of ground (g) the words which now appear after the expression "of the Rules of Court". The grounds, as thus amended, are as follows:

"(a) The trial judge erred in law [in] ruling that there was evidence to form a basis upon which it was open to the jury to find contributory negligence. (aa) Alternatively to (a), the trial judge having ruled that it was open for the jury to find contributory negligence, the judge ought to have instructed the jury fully and appropriately that it was necessary for them to differentiate between contributory negligence on the one hand and mere inadvertence, inattention or misjudgment on the other. The trial judge failed to so instruct the jury. (b) The trial judge erred in law in directing the jury upon the question of contributory negligence and in particular in summarising her charge to the jury as requiring an assessment of whether one party had greater control than the other which would have resulted at least in confusion or alternatively in the jury substituting this direction for any direction given earlier in the charge. (c) The trial judge erred in law in directing the jury of the inferences which could be drawn from the failure by the appellant to call Dr Freilich, Mr Cary or Mr Rogers. (d) The trial judge erred in law in failing to direct the jury of the inferences that could be drawn from the failure of the respondent to call Mr Davie, Dr Milecki, Dr Kostos or Mr Dick. (e) The trial judge erred in law in failing to direct the jury of the inferences that could be drawn from the failure of the respondent to call any evidence on the issues as to whether the appellant's job was secure or the availability of overtime. (f) The trial judge erred in law in failing to direct the jury to assess damages for future loss of earnings including the possibility that the appellant might cease to be employed by the respondent and by reason of the loss of his trade be unable to obtain other or as remunerative employment. (g) The trial judge erred in law and in the exercise of her discretion in failing to exclude the videotaped reconstruction of the accident scene, the existence of which had not previously been disclosed to the appellant nor included in the respondent's court book pursuant to r.34A.29 or r.34A.32 of the Rules of Court and having subsequently excluded part of the videotape, failed to instruct the jury fully and appropriately with regard to the same. (h) The verdict of the jury of 40 percent contributory negligence on the part of the appellant was unreasonable and against the evidence or alternatively the weight of the evidence. (i) That the award of $54,755.35 for pecuniary loss damages by the jury was a verdict not reasonably open to it on the whole of the evidence."

19. Until he suffered the injury which gave rise to this litigation, the appellant was employed in his trade as a qualified cabinet maker. This often resulted in his being engaged in shopfitting. On 13 May 1994, the respondent was completing the fit-out of the film and television school at the rear of the Victorian College of the Arts on the corner of Grant Street and St. Kilda Road, Melbourne; and it was on this task that the appellant, with another employee of the respondent (a Mr Scott Keating), was engaged. On 13 May, however, Mr Keating was on sick leave. A toilet in the building required a new diffuser in its overhead light. The appellant was given a list of jobs to do, and this was one of them. He took with him for the purpose an "A" frame aluminium ladder approximately eight feet in height. He obtained it, according to evidence called on his behalf, "from nearby"; but he does not know who owned it. At all events, he did not suggest that he was required by the respondent to use it; and in these circumstances the only conclusion open on the appellant's own evidence is that the ladder was not pressed upon him by the respondent. It was of a kind in common use (a "pretty standard sort of aluminium ladder", as the appellant agreed) and with which during some 20 years as a cabinet maker and shopfitter the appellant had become familiar. It was equipped with locking arms for use when in its "A" configuration, but (as the appellant knew) it could also be used as an orthodox ladder by folding the two sets of legs together and leaning the top against a solid object while support at the other end was provided by one of its two sets of legs, the other set being folded against the first. It could not be produced at the trial because no-one knew where it was.

22. On the occasion in question, the appellant used the ladder in neither configuration. Space in the toilet was limited. As a result, the two sets of legs could not be extended to the point necessary if the locking arms were to secure them in the "A" position. The appellant extended them as far as he could. It was, he said, the only possible way to use the ladder in those circumstances; and without the ladder, the diffuser could not be installed. According to the appellant, leaning the ladder against a wall was not practicable because it could not be placed sufficiently close to the light to enable the diffuser to be installed.

25. With both sets of the ladder's legs extended but unlocked, the appellant climbed on it. He bent backwards to reach the light. His weight was accordingly (as was confirmed by the evidence of the appellant's expert, an ergonomist named Mark Dohrmann) directed forwards and downwards. Mr Dohrmann added - and even without his evidence, the jury was entitled to infer - that this "most likely" created a pushing thrust on the set of legs on which the appellant was standing. That thrust forced the unlocked set of legs together. The ladder collapsed, and the appellant fell. As he did so, his neck and shoulder struck the bowl of the toilet.

28. It is clear that what the appellant did was unsafe. The jury so found. Given that this was the appellant's case, that his own and his witnesses' evidence supported it, and that the respondent did not dispute it, the finding was unremarkable. In any event, the factual matrix against which the accident happened made the finding inevitable. That matrix was simple. Although the litigation came close to turning the simple into the complex, there was here an example of an accident that is easily avoided yet, humankind being what it is, frequently happens. The question for the jury was whether the appellant or the respondent was, or both were, negligent.

31. The appellant submits that the learned trial judge was wrong in allowing the issue of contributory negligence to go to the jury. He submits (to quote his written outline of submissions on the appeal) that, taking the view of the evidence most favourable to the respondent, his actions amounted - at worst - "to no more than misjudgment on his part." Hence the first ground of appeal.

34. In my opinion, this ground must fail. At common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property. A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent person, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer has by failing to use reasonable care exposed him to unnecessary risks. The question will often be, and in this case the appellant insisted that it was, whether - in the circumstances and under the conditions in which he was required to work - the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina[1].

37. Two things should, I think, be said about this. First, it was a question for the jury. Unless there was complete absence of evidence suggesting that anything more than mere inadvertence, inattention or misjudgment was involved, it was for the jury alone to decide whether or not the appellant's conduct amounted to a failure to take reasonable care for his own protection. Secondly, in this case there was evidence from the plaintiff himself, as well as from Mr Dorhrmann, on the basis of which the jury was entitled to conclude that the appellant failed to take such care. He was an experienced cabinet maker and shopfitter. He had frequently used "A" frame ladders. The jury was undoubtedly familiar with them. They are commonly employed both in the home and elsewhere, and by people who would never dare to call themselves tradesmen. The appellant knew that they incorporate a locking mechanism. The jury was entitled to infer that he knew how to operate that mechanism, and was aware of its importance as a safety device. There is also the appellant's own evidence that he considered the available options, or at least considered whether an alternative to the one he adopted was open to him. His evidence was that, in his opinion, there "was no other way" than that adopted by him that day to put the diffuser into place. Mr Dohrmann differed. In his opinion, there was an alternative, provided that the footings of the ladder were in good repair. It would have been possible, he said, to use the ladder in the orthodox way - that is, as a ladder without a second set of legs. According to the appellant, he (the appellant) rejected that alternative after considering it and after coming to the conclusion that it would not allow him access - certainly not adequate access - to that part of the ceiling to which the diffuser was to be affixed.

40. The trial judge adverted to this matter in her charge to the jury. She said, conformably with the evidence and without objection from the appellant:

"In this case Mr Bingeman, on behalf of the plaintiff, asks you to accept that the plaintiff could not do the job any other way than that which he attempted to do on the day in question. The plaintiff's evidence was that he had considered using a ladder as a straight one but decided on the `A' frame even though he could not lock it down. He had a job to do and it was done in the best way that he could."

44. In other words, this was not a case of inadvertence or inattention. A considered decision was made. It was made by the appellant. It was, it is true, the product of misjudgment. But of itself, this means nothing. Very many acts of contributory negligence properly so called are products of the same thing. The jury was entitled to conclude that there was here more than a mere excusable lapse in judgment; that, on the contrary, there was here a misjudgment which amounted to a negligent failure by the appellant to take reasonable care for his personal safety.

47. Ground (h) of the grounds of appeal is linked with ground (a). It is that "[t]he verdict of the jury of 40 percent contributory negligence on the part of the appellant was unreasonable and against the evidence or alternatively the weight of the evidence." In my opinion, this ground must also fail. In circumstances such as those which obtain here, the making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the relevant damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of the reasonable man, and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd[2]. Such examination is the province of the jury.

50. In Zoukra v Lowenstern[3], a case which this Court and others have cited with approval,[4] the Full Court of this Court said:

"... it is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence. This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in the respondent's favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with upon appeal."

54. This is true not only of issues of negligence and contributory negligence as such, but also of the respective significance of each when both have been found. 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' ... 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."

58. Liftronic Pty Ltd v Unver[6] was a case in which the respondent sustained injury to his back while lifting heavy rails in the course of his employment with the appellant. The jury found that he was contributorily negligent, and reflected this by a reduction of 60% in his damages. He appealed to the New South Wales Court of Appeal on the ground that the finding of contributory negligence to the extent of 60% was perverse. The Court of Appeal by majority accepted this, and substituted a finding of contributory negligence of 20% in reduction of the respondent's damages. The appellant having been granted special leave to appeal to the High Court, Gleeson, C.J. and McHugh, Gummow and Callinan, JJ. (Kirby, J dissenting) allowed the appeal. In their joint judgment, Gummow and Callinan, JJ. said[7]:

"[57] The only ground of appeal in this Court is that the Court of Appeal erred in substituting an assessment of 20 percent for contributory negligence for that of 60 percent by the jury. [58] In this case a properly instructed jury did exactly what the apportionment legislation required them to do, to apportion negligence between the parties on a just and equitable basis. It was not for the Court of Appeal to substitute its own opinion for that of the jury ... ... [60] The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury's view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty which they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measure that a careful employer may introduce and seek to maintain. A jury is uniquely well qualified to decide, to use the language of Mason, Wilson and Dawson, JJ. in Braistina[8] '[w]hat is considered to be reasonable in the circumstances of the case [according to] current community standards'."

62. In my opinion there is no basis upon which, in this case, this Court would be entitled to interfere with the decision of the jury to reduce by 40% the damages to which the appellant would otherwise be entitled. Indeed, it would have been open to the jury, on the evidence before them, to conclude that the appellant bore the greater, if not the entire, responsibility for his injuries.

65. This is not a case in which it was necessary for the jury carefully (to quote from ground (aa) of the grounds of appeal) to "differentiate between contributory negligence on the one hand and mere inadvertence, inattention or misjudgment on the other." For the reasons I have already given, the effect of the appellant's own evidence was to exclude any serious contention that a defence to the claim of contributory negligence could be made out on the basis of the latter. Accordingly, the trial judge was not obliged to instruct the jury on this point to any greater extent than she did: which was to point out the difference between the two and instruct the jury that they must bear that distinction in mind. It follows that ground (aa) must fail.

68. If her Honour's charge is open to criticism in this context, it is in my opinion that she was overly influenced by the submissions of counsel who appeared for the appellant (then, of course, the plaintiff) at the trial. In submissions put to the judge in the absence of the jury during discussion about what should be said to them on the subject of contributory negligence, he spoke of the employer's obligation to provide employees with a safe system of work, and of the danger that the system will not make appropriate allowance for inevitable losses of concentration or the like, giving rise in the employee to excusable inadvertence, inattention or misjudgment.

71. Nothing in these submissions was, of itself, exceptional. But they had limited relevance in the circumstances of the case. No system for installing diffusers had been established. The circumstances did not call for it. The appellant was merely asked to perform a simple task. As for the respondent, it is hard to see that it could have done more than it did, except perhaps in two respects. First, it could have ensured that the ladder supplied was appropriate for the dimensions of the room (but the reality seems to be that the appellant, realising that he needed a ladder, went around the premises - then a building site - and secured for his use the first "A" frame ladder he found); and, secondly, it could have warned the appellant against doing what he did - a warning some shopfitters of 18 years' experience would have thought unnecessary. Given that the respondent did neither of these things (there is no direct evidence on the second point), this is perhaps the only proper basis for the finding that the respondent was negligent. Nevertheless, despite the limited relevance of systems of work and mere inadvertence and the like, the charge included the following:

"In that context, you should bear in mind where a person is working a repetitive process, which is not the situation here, momentary inattention, for example, due to familiarity with a task being performed or inadvertence does not amount to contributory negligence. You should bear in mind where a person is working at a repetitive process over a period of time that momentary inattention, for example, due to familiarity with a task being performed or inadvertence does not amount to a failure to take reasonable care for one's safety. You see, it is the defendant whose system it is and the plaintiff is required to work in a system pursuant to the instructions of the defendant. You must consider whether there is evidence in this particular case which you accept that the plaintiff was doing other than working in accordance with the defendant's system."

75. As the judge herself acknowledged, the circumstances to which the above passage was directed did not apply in the present case. Yet it is important that the jury not be distracted by irrelevancies. The point was, with respect, powerfully made by the High Court in Alford v Magee[9]:

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held ... that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, [the] ... judge ... would simply tell them that if the accused did a particular act, he was guilty ... and that, if he did not do that particular act, he was not guilty ... It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practicable point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule. These considerations lead to the conclusion that a judge should not put to the jury the qualification on the general rule as to contributory negligence [i.e. that contributory negligence is a good defence to an action of negligence - a rule since abolished] unless he feels himself able to explain clearly to them exactly how the qualification can be fairly and reasonably applied by them to a view of the facts which it is open to them to entertain."

79. In this case, there was no repetitive process and no system within which the appellant was required to work. It was therefore best not to mention either in the charge to the jury. Indeed, stripped of these and the other distractions which, at the trial, crept into this case - it did at times distance itself from the simple realities of the appellant's accident - it can in my opinion be seen that the finding of contributory negligence, and the attribution to the appellant of 40% of the responsibility for his injuries, was by no means unfavourable to him.

82. Before she commenced her charge to the jury, her Honour discussed with counsel the terms she should employ when dealing with the question of contributory negligence. She then read to counsel what she proposed to say in her charge to the jury:

"In considering the question of contributory negligence and the apportionment you begin by keeping in mind that you would have already concluded the defendant had failed to discharge its obligation to take reasonable care for the safety of the plaintiff and was in breach of its statutory duty. You must compare the culpability and the relative importance of each party's acts or omissions in causing the injury and that the culpability you are comparing concerns the degree of departure from the standard of care expected of the employer and of the employee and that they direct their attention to the difference between a plaintiff's failure to take reasonable care for his own safety and that of mere misjudgment or inattention on his part."

86. Counsel for the respondent objected to the inclusion of the words "and was in breach of its statutory duty". Counsel for the appellant did not object to those words being omitted. In her charge, the judge did leave them out - while substituting for them the innocuous words "as its employee". Otherwise, with one immaterial exception, she repeated verbatim in the charge that which she had read to counsel. But she went on:

"You bear in mind all the circumstances of the accident, the incurring of the injuries, loss and damage. You consider also whether one party had a greater control over the situation than the other. You consider also that the defendant, not the plaintiff, had the control over the condition of his workplace, the system of work which is adopted and equipment which was provided and the manner in which his work was supervised. It is a matter for you in the light of all the circumstances to make a comparison between the blameworthiness of both if you are satisfied that both in fact contributed to the accident."

90. Counsel did not then take exception to this addendum. Later that day (15 April 2002), however, at the conclusion of the charge, her Honour said this:

"Now, as I said to you earlier, we're very close to the point where you're going to be sent out and I would just send you out with these strictures that you should bear in mind; the circumstances of the accident, and the incurring of the injuries, loss and damage, and consider whether one party had a greater control over the situation than the other ..."

94. A minute or so later, the jury retired to consider its verdict. Immediately they entered the jury room, counsel for the appellant said to the judge:

"Your Honour, I just have to say - I regret this but I have to say that your Honour's comment that this is a case of whether one party had greater control than the other is of itself - well, I don't know that it is, I rather feel that it's equating the plaintiff with the defendant in the question of control. If your Honour pleases."

"Yes. It's been said in other charges in relation to negligence so I - yes, alright, I hear what you say, Mr Bingeman. Court stood down."

103. This point is reflected in ground (b) of the grounds of appeal. It asserts that, in directing the jury upon the question of contributory negligence and in particular in summarising her charge, the trial judge, by "requiring an assessment of whether one party had greater control than the other", either confused the jury or alternatively induced them to substitute "this direction for any direction given earlier in the charge".

106. I have already recounted the terms in which, earlier in her charge, the judge told the jury that the respondent, and not the appellant, "had control over the condition of its workplace". Ground (b) is based on this premise. But it in turn seems to rely on no more than the invalid proposition that employers always enjoy such control. The evidence in this case demonstrates that they do not. The appellant cannot challenge that evidence, since much if not all of it was his. He was on the spot. He was well equipped to make all the necessary assessments. He had the relevant experience. The site was a building site, and the terms under which the respondent occupied it were limited accordingly. If the task of installing the diffusers was inherently difficult or dangerous, or at least so without the appropriate equipment, the appellant was sufficiently in control of the situation to avoid the difficulty or danger. As a last resort, he could simply have declined to do the job until it became safe to do so. At the very least, the jury were entitled - in the absence of any evidence to the contrary - to infer that he had such control as would enable him to take that course. There is no suggestion in the appellant's or any other evidence to which this Court's attention has been directed that, if confronted with the problem, the respondent would not have co-operated in overcoming it.

109. In the circumstances, her Honour's summary on this issue was unexceptional. Her more detailed instructions to the jury were unduly favourable to the appellant. Ground (b) must accordingly fail.

112. The appellant noted, in the written outline of his submissions on this appeal, a concession made by Mr Dohrmann while under cross-examination. It was that "if the 'A' frame ladder had been used as a straight ladder propped up against the wall at an angle but not leaning against the other side of the cubicle, it was possible that it may have been able to be used safely, provided its footings were in a safe state of repair". On this basis, the appellant submitted "that in the absence of evidence as to the conditions of the footings of the ladder, the jury could not infer that the ladder could have been used as a normal ladder angled against the cubicle wall".

115. I do not accept this reasoning. If it were possible to use the "A" frame ladder in safety, albeit as a straight ladder, then it was the appellant's responsibility to consider that possibility. There is evidence, to which I have already referred, that he did so. He thereafter came to the opposite conclusion to that of his expert witness. On this point, the jury were entitled to accept Mr Dohrmann's opinion - and reject that of the appellant - about the safety of the proposed course. But once the appellant is taken as having considered the alternatives, it is for him to introduce evidence about the condition of the footings. In the absence of such evidence, the jury were entitled to infer that those footings were in good order. In any event, in the absence of any evidence that the respondent was aware of the identity of the ladder used by the appellant, no adverse inference could be drawn from the respondent's failure to call evidence about the condition of the footings; and it would not be open to the jury to infer that they were in such condition that the ladder could not safely be used in the way which Mr Dohrmann postulated.

118. The appellant did not, on the hearing of the appeal, press grounds (c), (d) or (e). It is therefore unnecessary to say anything about them here. The question of damages remains. It is the subject of grounds (f) and (i), to which I shall return. The only other ground is ground (g), which asserts that the trial judge erred in failing to exclude from the evidence a short film recorded on videotape. It is said by the respondent to depict someone manoeuvring an "A" frame ladder in the toilet in which the appellant's accident occurred. The videotape was tendered by the respondent on 4 April 2002, the second day of the trial, during the cross-examination of the appellant.

121. It is contended by the appellant that the trial judge erred in law: (a) in permitting any part of the videotape to be tendered; (b) in failing to direct the jury about the dangers of treating the scene shown on the tape as if it were an accurate reconstruction of the accident; and (c) in that, having permitted part of the videotape to be tendered, her Honour failed to direct the jury to disregard those parts which had been ruled as inadmissible but which were nevertheless shown to the jury.

124. On the appeal it was submitted by the appellant that, before tendering the film, the respondent failed to comply with Part 7 of Order 34A of the Rules of the County Court. By r.34A.27, the trial of a proceeding shall not, unless the Court otherwise orders, be held if any court book required to be filed and served in accordance with the Order has not been filed and served. Rule 34A.29 further provides that, save with the leave of the Court or by consent of the parties, a party shall not tender in evidence at the trial of a proceeding a document[10] a copy of which the party was required to include in a court book of the party but which the party did not include. By r.34A.32, the court book of a defendant must, unless the Court otherwise orders, contain - among other things - a copy of each document the defendant intends to tender in evidence. No copy of the video was produced before its tender.

127. Rule 34A.32 is, however, to be read with r.34A.35. The former is of general application. The latter applies to particular proceedings, including one in which a claim is made for damages in respect of death or bodily injury. Such, of course, was this case. But where r.34A.35 applies, r.34A.32 does not. That being so, the contents of any court book used in the trial of the present proceeding were limited by r.34A.35(4). It is there provided that, unless the Court otherwise orders, a court book shall contain and shall contain only:

(a) an index of its contents;

(b) a copy of the writ or originating motion;

(c) a copy of the latest version of any pleadings, of any particulars, and of any order or request by a party for particulars; and

(d) a list of any documents a party intends to tender in evidence or which a party otherwise intends to use at the trial or at the hearing of the application (as the case requires).

133. The County Court made no order in this case which affected the operation of r.34A.35(4). Accordingly, the court book ought to have contained a list of any documents, including any videotape, which the respondent intended to tender. I proceed upon the basis that the court book as filed failed to meet this requirement. Assuming that it did so fail, nevertheless her Honour had a discretion to allow the tender of the videotape in question. Her Honour's attention not being drawn to the issue, she did not turn her mind to it. But nothing put before this Court on the hearing of this appeal suggests that, had the exercise of the discretion resulted in the admission of the tape, the discretion would have miscarried. In any event, the appellant did not voice his objection to the relevant tender until 5 April 2002. This was the day after the film had been shown to the jury. In these circumstances, he cannot now be heard to say that her Honour erred in law in permitting any part of the videotape to be tendered.

136. It is equally impossible for the appellant sensibly to complain that her Honour ought to have directed the jury about the dangers of treating the scenes shown on the film as an accurate reconstruction of the accident. It did not purport to be a reconstruction of the accident itself, and no juror could have thought otherwise. It did not show the ladder becoming unstable while a person was on it. Still less did it show either the ladder collapsing or the climber falling. It only showed that which was consistent with the appellant's own description of what happened immediately before he fell. Of particular relevance in this context, it pictured a man on a ladder leaning backwards and sideways to reach the diffuser. This may not have been exactly how the appellant attempted to accomplish his task - he may have bent directly backwards - but the difference, if any, was immaterial. Accordingly, the showing of the film could not have prejudiced the appellant.

139. On 5 April 2002, the day after the videotape was both shown to the jury and tendered, counsel for the appellant objected to that tender. He described the submission he was then making as a "renewal" of an "objection" taken the day before. That "objection", however, amounted to no more than an observation, made after cross-examination had concluded, that neither the ladder shown in the film nor the person climbing that ladder had been identified; indeed, the date the film was made had not been revealed either. By no stretching of the language, however, could what counsel said on 4 April be described as an objection to the tender of the film; and even if it were, it was made after cross-examination had ended, after the jury had seen the film, and after the tape had been received into evidence.

142. Nevertheless, following counsel's intervention on 5 April, the trial judge ruled that a portion of that which the jury had seen should be cut from the exhibit. She did not thereafter complement this by directing the jury to disregard the excised portion. No objection to her charge was taken in this respect. Having seen the entire clip (but not having seen the abridged version) I have in any event concluded that all of it was admissible. Even disregarding the difficulties created by the late raising of the appellant's objections, it seems to me that he was not prejudiced by the course adopted by the judge at the trial. Ground (g) therefore fails.

145. There remain those grounds of appeal - grounds (f) and (i) - that concern pecuniary loss damages. The jury assessed these in the sum of $54,755.35. But, as her Honour - without objection from the respondent - noted in her charge, the respondent had in effect conceded that since the accident and up to the commencement of the trial the appellant had suffered a loss of $3,000 in wages during the initial period of his time off work, a further $5,000 following later surgery, $16,075 by way of lost overtime, and $2,126 representing tax paid on WorkCover benefits. The total of these losses is $26,201.35. It is reasonable to assume that the jury accepted those figures, because they would have acted unreasonably had they not done so. In awarding pecuniary loss damages in the sum of $54,755.35, therefore, the jury allowed only $28,554 for future loss of earnings. Yet, as her Honour - again without objection - also recorded in her charge, the respondent accepted that, given the appellant's current state of health, he would be unable to work overtime in the future. According to the respondent, this would cost him about $50 per week (the appellant's figure was $310 per week). Applying a multiplier of 740, that being agreed between the parties as appropriate were the appellant to retire at age 60, his loss of overtime would amount to $37,000. Application of the similarly agreed multiplier for retirement at age 65 (a multiplier of 864) would result in a loss of $43,200. On this basis, the respondent put to the jury that an allowance of between $35,000 and $40,000 would be appropriate under this head. The respondent was therefore prepared to allow the appellant between $6,446 and $11,446 more for loss of future overtime alone than the jury awarded for all future pecuniary loss.

148. The assessment was of course one for the jury. It is doubtless arguable that it was open to the jury to ignore what was in effect a concession by the respondent to the appellant, and reach its own decision, a decision to which as a reasonable jury it was entitled come. The appellant did not, on the appeal, seek to submit to the contrary. He instead attempted to persuade us that the trial judge failed to discharge her duty adequately to charge the jury on the point.

151. It seems to me that this submission is valid. If it is, however, it will be necessary to consider whether, having regard to r.64.23 of Chapter 1 of the Rules of this Court, a new trial should not be granted. It is to these matters that I now turn.

154. Once the jury accepted that the appellant was injured as a result of the respondent's negligence, another topic arose for consideration. It was whether those injuries made him more vulnerable than he otherwise would have been to loss of employment. If he was, then the appellant was also entitled to consideration by the jury of an allowance against the possibility that he might lose his present job and be unable (for some time or at all) to find another, or at least another that paid as well. It is true that there was little evidence one way or the other: the respondent called none to suggest that the appellant's place was secure (although it relied on the evidence that there had been no loss of jobs on the factory floor and also on the evidence, called by the appellant, that two of his cabinet-maker colleagues were continuing to receive overtime). Moreover, the evidence called on the point on behalf of the appellant was, the jury might have felt, less than entirely convincing. Certainly, there was no reason to conclude that redundancy was imminent. The appellant said in his evidence in chief that overtime was not as easy to get as it had been, that business was "very slow", and that "around Christmas it generally sort of slows down but it's never been what it is now." He also said that 30 employees - out of a total of about 300 - were (in the appellant's words) "let go...just before Christmas" 2001, and that he was very worried that he too would lose his job. His then current position as an "expediter" had been created for him (and might in the circumstances be thought to be artificial and correspondingly vulnerable) although a second such position had not only since been established but continued to be occupied. Nevertheless, given that the appellant could no longer engage in his trade as a cabinet maker, his prospects of remaining in his present employment, and of obtaining work should the respondent no longer have a place for him, were less than they would have been before his accident. The risk that the appelant would at some time in the future be unemployed was, in my opinion, more than speculative[11]; or, at least, the jury were entitled to find it so. In these circumstances, her Honour should I think have instructed the jury to consider whether some allowance should be made for it.

157. She did not. When counsel for the appellant raised the omission with her, she responded by saying that she had "covered the situation and fairly put the position to the jury". She accordingly declined to say more. But all she said about the possibility that the appellant might become unemployed and perhaps unemployable was this:

"As far as future loss is concerned, Mr Bingeman put to you that you take into consideration future possibilities. It is suggested that there is a real risk in this case of the plaintiff's inability to work as a shop fitter because of his injury and he has no other qualifications. If he lost his present job it was a likelihood he would be unable to find another job ... you are also reminded there is no evidence the defendant is likely to go broke when it has large contracts and employs 300 people of which ... six ... continue to be able to work overtime."

161. It is relevant in this context to record that counsel for the appellant had addressed the jury on the allowance they should make for the vicissitudes of life. He suggested a reduction of 15% in the damages that might otherwise be awarded - that reduction reflecting, of course, the possibility that the appellant might, had the accident never occurred, nevertheless have suffered some misfortune that prevented him continuing to earn, until retirement at age 60 or 65, a salary commensurate with the remuneration he enjoyed as at May 1994. Counsel did not then mention the off-setting consideration that the accident (for which, as the jury found, the respondent was partly to blame) might result in the future diminution of the appellant's emoluments, or indeed their disappearance, through a change in or loss of his employment. When, accordingly, counsel did put submissions on this point, the jury were not in that position from which they could most readily act upon them. The fact that her Honour said nothing at all about the issue deprived the jury of any chance they might otherwise have had properly to consider it.

164. Her Honour did say something about an allied contingency - the loss of future overtime. Even here, however, she did no more than repeat the substance of the detailed submissions of counsel. These therefore never acquired the force of her judicial authority. Her Honour should, in my opinion, have directed the jury that they must consider the substantial possibility that, by reason of the injuries he suffered as a result of the negligence of the respondent, the appellant would never again enjoy the opportunity to work the overtime which was open to him before his accident. Having reminded them of the submissions of both counsel, she should have told the jury that it was a matter for them, and that if they were to award the appellant anything under this head, the calculation of his loss could be done in accordance with the formula suggested by counsel.

167. At the same time, there is no reason to think that the jury were not well placed properly to consider the case put on behalf of each party in relation to overtime. They heard counsels' final addresses. Her Honour then said this to them on that subject:

"It was put to you that the future loss of the plaintiff is predicated on the loss of ongoing overtime work. And using that multiplier of $864.40 to age 65, to what is said to be the plaintiff's loss in that regard of $310 per week, the total which Mr Bingeman came to is $267,964. However, after allowing for the vicissitudes which I explained to you earlier, that results in a claim being made on behalf of the plaintiff of $227,769.40, being future loss of earning capacity. On behalf of the defendant, Mr Titshall reminded you there is no evidence in this case that the plaintiff cannot work at all if he loses his present job. ... Taking into account the average income of the six workers and the plaintiff ... you are asked to look at the loss of approximately $50 per week in overtime which is applied to the multiplier. When that is applied to the multiplier of 740 up to the age of 60 and then for the age of 65 is a multiplier of 864. These multipliers are a guide and Mr Titshall suggests figures in the range of between $35,000 and $40,000, depending on which multiplier you use."

171. Although in my opinion this passage suffers from the fact that it is no more than a summary of counsels' arguments, there is no reason to suppose that the jury proceeded to ignore them. In these circumstances, I have considered whether the deficiencies which I have identified in the charge occasioned some substantial wrong or miscarriage in the trial: r.64.23(2). If they did not, then the rule provides that a new trial not be granted. (It is relevant here to note that the word "misdirection" in the rule includes non-direction.)[12]

174. I do not think that any substantial wrong or miscarriage has been done. On the contrary, it seems to me that a properly directed jury would have been perfectly justified in awarding the plaintiff no more than he received.

[1] [1986] HCA 20; (1986) 160 C.L.R. 301 at 310 per Mason, Wilson and Dawson, JJ.

[2] [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 493-494; [1985] HCA 34; 59 A.L.R. 529 at 532.

[3] [1958] VicRp 94; [1958] V.R. 594 at 595 per Herring, C.J. and O'Bryan and Dean, JJ.

[4] Liftronic Pty Ltd v Unver (2001) 179 A.L.R. 321 at 327 per McHugh, J.; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 493-4; [1985] HCA 34; 59 A.L.R. 529 at 532 per Gibbs, C.J. and Mason, Wilson, Brennan and Deane, JJ.; Kulczycki v Metalex Pty Ltd [1995] VICSC 22; [1995] 2 V.R. 377 at 383 per Tadgell, J.; Colman v La Trobe University (unreported, Court of Appeal, 8 September 1995); Butler v Rick Cuneen Logging Pty Ltd [1997] 2 V.R. 99 at 104 per Winneke, P.; Moundalek v Woolworths Ltd (unreported, Court of Appeal (N.S.W.), 22 October 1997).

[5] [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 493-4; [1985] HCA 34; 59 A.L.R. 529 at 532 per Gibbs, C.J. and Mason, Wilson, Brennan and Deane, JJ.

[6] (2001) 179 A.L.R. 321; (2001) 75 A.L.J.R. 867.

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

[9] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto, JJ.

[10] The expression "document" is defined in s.38 of the Interpretation of Legislation Act 1984. It is there provided that in all Acts and subordinate instruments, unless the contrary intention appears, "document" includes (among other things) any film, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from that film or tape.

[11] See Malec v J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 C.L.R. 638 at 643 per Deane, Gaudron and McHugh, JJ.

[12] General Motors Holdens Pty. Ltd. v Moularas [1964] HCA 39; (1964) 111 C.L.R. 234 at 256. Cf Butler v Rick Cuneen Logging Pty. Ltd. [1997] 2 V.R. 99 and cases cited in Williams Civil Procedure - Victoria, para. [64.01.755].