Plaintiff v Defendant

2 After the verdict, the plaintiff applied for judgment to be entered in her favour disregarding the jury's finding of contributory negligence on the footing that no reasonable jury, properly instructed, could have concluded that she was guilty of any such negligence.

3 The principles governing such an application were not in dispute. They were recently collected and set out clearly by Kyrou J in Pasqualotto v Pasqualotto,[1] and I gratefully adopt his Honour's enumeration of them:[2]

In order for a plaintiff to succeed in an application for judgment notwithstanding the jury's verdict of contributory negligence, the plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict of contributory negligence.

Where there is evidence to support the jury's verdict, the verdict cannot be disregarded, even if the trial judge were strongly against the jury's conclusion.

A trial judge hearing an application for judgment notwithstanding the jury's verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

A trial judge should proceed with great caution and should only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases.

4 Only the plaintiff was present when the injury occurred. The evidence as to how it occurred was confined to her account given in court and in an incident report and a workers compensation claim form. In summary, the evidence was that:

• Four pallets of boxes were in the store room to be unloaded; each pallet held cardboard boxes stacked above head-height, the whole load wrapped in plastic. A pallet was approximately 1.1 square metres.
• The plaintiff had begun unloading pallets at 8am in the morning and, by around 4pm, was working on the third pallet. She worked alone and had been instructed to unload the pallets as quickly as possible.
• Her task was to remove the boxes, take out the merchandise (clothing), load onto moveable clothing rails (sometimes called 'trolleys') those items that could be hung, and sort into boxes those items that could not be hung.
• She had removed the plastic wrapping from the third pallet, and had unloaded about half the pallet depth immediately before the accident (leaving, inferentially, a clear space on the pallet in front of the face of the load of approximately 600 millimetres).
• The plaintiff stood on the pallet and noticed a bundle wrapped in some plastic at about eye level on top of the boxes she was unloading, although she did not then know what was wrapped in the bundle.
• After lifting off the next box, she turned around whilst still standing on the pallet and, with her back to the load, placed the box on the floor in front of her.
• While then crouching forward preparing to unpack that box, she was struck on the back with substantial force, jerking her forward (but not causing her to fall over).
• She looked around to find, lying on the 'floor of the pallet', the wrapped bundle she had previously seen on top of the pallets and one of the boxes now appearing to be somewhat crushed or crumpled.
• She picked up the bundle; it felt to her like a bundle of two, three or four metal brackets of the kind used to hold up rails on the store room wall. It was not in dispute that the bundle of brackets (assuming that is what they were) should not have been on the load.
• At the time she was struck, she was standing on the pallet facing away from the load and working on the box which was on the floor, instead of standing on the floor and working on the box on the pallet. She adopted that position, so she explained, because the floor space around the pallet was too cluttered with boxes and clothes rails to do otherwise.
• She was cross examined at length as to why she adopted the position she did, rather than stand on the floor, off the pallet, and face the load. She accepted that she could have created some space to stand on the floor by moving the clothes rail onto which she was loading clothes away from the pallet, by about three feet.
• Working alone in the store room, she could not push the loaded clothes rails out into the show room because there was nobody available to unpack them and put them onto the displays, and some of the merchandise had to remain in boxes on the floor of the store room because they were of a kind which could not be hung on the rails.

5 The plaintiff pleaded that the defendant was negligent in failing to provide a safe system of work and a safe place of work. More specifically, she particularised the defendant's negligence as including -

• Placing the metal rods [ie brackets] within the goods packed on the pallet.
• Placing the metal rods in such a way that they could fall from the load on the pallet after part of the load was removed by unloading.
• Allowing the area in which the plaintiff was working to become cluttered so that there was insufficient floor space.
• Failing to have a sufficient number of persons on duty to move stock quickly from the store room into the store.
• Creating a situation where, with inadequate staff, stock had to be quickly unpacked and moved from the store room into the store.

6 In response the defendant denied negligence but said that if the plaintiff suffered injury by reason of its negligence, then she contributed to her injuries by her own negligence. The particulars of contributory negligence included:

• Failing to keep any or proper lookout.
• Failing to use common sense by unpacking boxed items adjacent to a loaded pallet, having removed the plastic wrap supporting the load, when she knew or ought to have known that it was possible for the load to move during transit and for items to become unstable.
• Failing to pay any or any proper attention to the activity she was performing by failing to monitor the load while she was unpacking the pallet to ensure the unloaded items remained stable.
• Failing to take any or any reasonable care for her own safety.

7 Before counsel commenced final addresses, Mr Adams QC, who with Mr Fitzpatrick appeared for the plaintiff, raised the issue of whether there was sufficient evidence upon which the issue of contributory negligence could properly go to the jury. He did not press for the issue to be fully argued and determined before addresses and the charge. Rather, he was content that the issue be put to the jury and, if the jury found there was contributory negligence, he then be permitted to make application for judgment to be entered for the plaintiff disregarding the jury's verdict of contributory negligence.

8 Mr Philbrick SC, who with Ms Domnez appeared for the defendant, resisted that course, contending that I should determine the matter one way or another before addresses commence. For reasons which I explained at the time, I declined to hear full argument and rule upon the matter before addresses (the jury was assembled and waiting to come into Court for addresses to commence), but reserved liberty to Mr Adams to make the application he foreshadowed should there be a verdict for contributory negligence. That situation has now eventuated.

In relation to contributory negligence, if you get to that point, we say that the plaintiff should not have been standing on the pallet. It was unnecessary to stand on the pallet and she should not have crouched away from the pallet with her back to the load. And that clearly, if something happened to that load in the close confines of the pallet there would be a risk, if the load did fall, it would hit her, indeed as she said it did in this accident. She should have used her common sense, she should have followed the system that she had been following earlier in the day. She should not have stood on the pallet and turned her back to it while she unloaded that box on the floor. It was open to her, had she wished to do so, to place the box on the base of the pallet and stand where she placed the box on the floor. But it would make far more sense if she simply moved the trolley a short distance, which she could have done, and then had she done that, there would have been plenty of room for her to work on the floor. It was her failure to do that that was a major cause of this accident.

...

In that regard, the plaintiff herself agreed that she could have pushed the trolley but she chose not to do so. There it is in a nutshell; that's why she was unnecessarily on the base of the pallet. She didn't need to be there. Common sense would tell you that you wouldn't turn your back to a load, let alone a load that had the plastic cut off it. That's what she did and that's a major contributing factor towards this accident ... .[3]

10 Mr Adams, in his address, addressed this issue in detail. He went through a number of pages of the transcript of the plaintiff's evidence as to how the accident happened, and her answers in cross-examination to all the questions put to her about why she could not make more space and move the rail, and to her evidence about how the area was too cramped. He urged the jury to accept that the reason she did not move the rail was because she needed to have it next to her to load clothes from the box. Indeed, he referred to the failure of the employer when completing any of the WorkCover Claim forms, albeit with knowledge of how the plaintiff said the accident occurred, to say that she had done anything which was a breach of safety standards. He concluded in this manner:

What she is doing is she has the trolley next to her because that's what you do. She's got to pick the things up here and walk over to the trolley over there [demonstrating], three feet or something, and put it there?[4] She's got it next to her because she's filling it and working under pressure.[5]

11 The gravamen of Mr Adams' argument was that no jury, properly instructed, could have concluded that Ms Kiriwellage's conduct in standing on the pallet with her back to the load was anything other than 'mere thoughtlessness or inattention', and that mere thoughtlessness or inattention could not constitute contributory negligence.

12 He argued, as he had done before the jury, that Ms Kiriwellage was not acting in breach of any instruction she had been given by the defendant. He said she was just trying to get the job done, on her own, in the best way she thought appropriate, that she had been working a long time (nearly 8 hours) and had been instructed to unload as quickly as possible. Further, he said that, without assistance, the storeroom became cluttered, restricting where she could stand. Finally, he argued that, if she had erred by standing on the pallet with her back to the load it was only because she did not advert to the possibility of something falling on her, so that her conduct was mere thoughtlessness, inadvertence or inattention.

13 Mr Adams relied heavily on what was said by the High Court in Sungravure Pty Ltd v Meani.[6] In particular he took me to a lengthy passage in the judgment of Windeyer J. First, however, it is worth noting that in a joint judgment of the other members of the majority (Kitto, Menzies and Owen JJ) their Honours said of a similar argument put by counsel for the worker in that case:

The argument seemed to proceed on the basis that there was a clear line of distinction to be drawn between an act done without reasonable regard for one's own safety on the one hand and an act done inadvertently or without thought on the other. But we are unable to agree that this is so. An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact.[7]

14 That passage does not assist Mr Adams whose argument appears to depend upon there being such a clear distinction between mere thoughtlessness, on the one hand, and negligence, on the other.

15 In my view, the passage upon which Mr Adams relied from Windeyer J's judgment does not assist him either. First, his Honour said:

When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider 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. But I quite fail to see how considerations of setting and circumstances can produce any rule of law or any general principle applicable to activities in factories that is not applicable to activities elsewhere, in a coalmine, a musterer's camp, a shearing shed, upon a highway or anywhere else. In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care. These things were for the consideration and evaluation of the jury. Negligence is, in every case, a question of fact. In no case can the answer to that question be found in words, however eloquent, uttered by judges, however eminent, about the facts of some other case.[8]

16 Furthermore, in relation to the supposed distinction between mere thoughtlessness or inadvertence on the one hand, and negligence on the other, his Honour's views were of a similar nature to the other members of the majority. His Honour said:

Moreover, in ordinary parlance, a thoughtless act when a reasonably prudent man would take thought, an inadvertent act when he would be vigilant, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on his part. What Lord Wright said[9] was that mere thoughtlessness or inadvertence is not necessarily negligence. That is indisputable.[10]

17 Mr Adams argued that the conduct of the plaintiff here was akin to the conduct of the worker in two more recent cases: Czatyrko v Edith Cowan University[11] and Mayhew v Lewingtons Transport Pty Ltd.[12]

18 In Czatyrko's case a worker was injured when he stepped backwards from the tray of a truck he was unloading to where he expected a platform to be and fell approximately a metre to the ground after a co-worker had already lowered the platform to the ground without informing the worker. Although the employer was found negligent, the worker was found contributorily negligent for not having looked where he was going. Liability had been apportioned against him at 70 percent. In that case the High Court commenced its judgment by saying the appeal raised no question of general principle and depended on its own facts.[13] Its conclusion was that the employer had failed to discharge the onus of proving contributory negligence because, in part, the worker had not disobeyed any direction or warning from the respondent, he had been working under pressure to complete the job promptly, and the work was repetitive. But, in my view, the court did not purport to lay down some principle that, where those circumstances exist, there can never be contributory negligence. Rather, the court held that in the circumstances of that particular case, and upon its particular facts, the onus had not been discharged.

19 In Mayhew a truck driver had been up on the truck between the rear of the cabin and the front of the first trailer, for the purpose of hooking up lines between the truck and the trailers. As he was descending some steps he fell and injured himself. He had performed that activity hundreds of times before and on this occasion, seemingly, he had let go of his handholds thinking that his foot was on the second step (when it was not). The Court of Appeal held that the jury was bound to accept the worker's evidence that he believed his foot was on the second step.[14] The court also concluded that the position, alignment and size of the step with its cutaway sides was patently deficient and that the accident was one of a kind that was inevitable to occur at some stage.[15] In those circumstances the court concluded -

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.[16]

20 The Court of Appeal surveyed a number of cases illustrating the difference between conduct which amounted to contributory negligence on the one hand, and conduct which amounted to mere inadvertence, inattention or misjudgement that did not amount to contributory negligence, on the other.[17]

21 I agree with Mr Philbrick's submission that in most if not all of these cases the activity of the worker which was found not to amount to contributory negligence was an action of a fleeting nature, or an action which took place over a very short space of time: a garbage collector stepping out from behind a garbage truck and being struck by a motor vehicle;[18] a worker reaching his hand under a moving belt to grease a roller and getting his arm caught in the belt;[19] a railway employee being hit by a moving railway wagon when stepping across the line without looking;[20] and the worker stepping backwards off the truck believing the mechanical lifting platform was in position.[21]

22 In contrast, the relevant actions of Ms Kiriwellage could not be said to be so fleeting or momentary. Certainly there were elements of urgency, repetition and perhaps some familiarity. There was also the cluttered store room conditions in which she was working. But, in my view, a jury could reasonably conclude that the activity which made her vulnerable to being struck in the back involved more deliberation and choice on her part so as to take it beyond mere thoughtlessness. Minds may reasonably differ but, at least, it was open for the jury to think so having regard to all of the conditions and circumstances.

23 I am not satisfied that this is the 'clearest of cases' of there being no evidence upon which a jury properly instructed could have concluded that the plaintiff did not take reasonable care for her own safety. Heeding the warning that I should proceed with great caution and should only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases, I must therefore reject the plaintiff's application.

[1] Pasqualotto v Pasqualotto [2011] VSC 550.

[2] Ibid [19] - [22] (citations omitted).

[4] This question was posed with clear satirical criticism.

[6] [1964] HCA 16; [1964] 110 CLR 24.

[9] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 176, 'the jury had to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins'.

[10] Sungravure Pty Ltd v Meani [1964] HCA 16; [1964] 110 CLR 24, 38.

[11] [2005] HCA 14; [2005] 79 ALJR 839.

[12] [2010] VSCA 202.

[13] Czatyrko v Edith Cowan University [2005] HCA 14; [2005] 79 ALJR 839, 840 [1].

[14] Mayhew v Lewingtons Transport Pty Ltd [2010] VSCA 202 [35].

[18] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306.

[19] Davies v Adelaide Chemical and Fertiliser Company Ltd [1946] HCA 47; (1946) 74 CLR 541.

[20] Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.

[21] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839.