Tralci v Dacton Group Pty Ltd [2014] VSCA 105

3 In the proceeding below, the appellant claimed that, on the morning of 13 August 2008, he sustained injuries to his lower back and neck, when he slipped and fell on to the tray of the Mazda while exiting the cabin of the Kenworth. At trial, these events were not in issue. About a week after these events, the appellant ceased work. Later in 2008, the appellant attempted to return to work for two days. However, this was unsuccessful and the appellant has not worked since.

4 In November 2011, the appellant commenced the proceeding below against the respondent, claiming that the injuries that he suffered to his back and neck on 13 August 2008 were caused by the negligence of the respondent, its servants and agents.

5 The appellant's proceeding was heard before Cavanough J and a jury of six in September 2013. After a seven day trial, the jury returned a verdict for the respondent by giving the following answer to the following question:

Was there negligence on the part of the defendant [respondent] that was a cause of injury, loss or damage to the plaintiff [appellant]? - - - No.

6 On 16 September 2013, and in accordance with the jury's verdict, the judge entered judgment for the respondent and ordered the appellant to pay the

7 By a notice of appeal filed 1 October 2013, the appellant appeals the jury's verdict and the judgment, seeking, in lieu of the judgment given below, judgment for the appellant against the respondent in a sum to be determined; alternatively, that the proceeding be remitted to the Trial Division for re-hearing. While the notice of appeal contains two grounds of appeal, effectively the sole complaint by the appellant is that no reasonable jury, properly instructed, acting upon the evidence, could have returned a verdict for the respondent.

The evidence given on the issue of liability at trial

8 At trial, four witnesses were called on the issue of liability. The appellant gave evidence and called a co-worker, Mr Phillip Sanders. The respondent called Mr Dattoli and a consultant engineer, Dr John Culvenor. Dr Culvenor had taken various photographs of the relevant vehicles. These photographs included photographs of the vehicles parked next to each other with different distances between the vehicles.

9 The appellant submits that Dr Culvenor's evidence 'adds little of value to the evidence before the Court'. That submission may be accepted. The more critical evidence given on the issue of liability at trial came from the appellant, Mr Sanders and Mr Dattoli. That evidence may be summarised as follows.

10 The appellant gave evidence that on the morning of the accident he arrived at about 6 am. At that time it was very dewy and wet on the ground. It had probably rained the night before. He said it was dark when he arrived. Mr Dattoli gave evidence that there was no lighting in the paddock where the trucks were parked.

11 The appellant gave evidence that he first climbed from the ground onto the tray of the Mazda before entering the Kenworth cabin. However, Mr Sanders accepted as true a prior statement, made by him, giving a different version of events, namely, that the appellant had gone from standing on the wheel of the Kenworth to the tray, and then into the Kenworth cabin.

12 The appellant gave evidence that he retrieved a bottle of coolant from the cabin. The appellant said that he stepped with his right foot onto the tray of the Mazda (while holding the bottle of coolant in his right hand). The tray was made of steel chequer plate. When he went to move his left foot from the step of the Kenworth, his right leg went out to the right and slid out from under him. His right foot went over the edge of the back of the tray and his left leg had come down at 'a bit of a right angle'. He said he was in a 'split position' and that he 'bottomed out'. The appellant said that he believed he struck his face on the coolant bottle.

13 The appellant gave evidence that the Mazda tray truck had been parked so close to his Kenworth that he 'couldn't get into my side, the driver's side, without standing up - getting up on the tray.' He said the Mazda was very close to the Kenworth, so that he knew there would be no possible way of getting into the Kenworth without having to step on the tray of the Mazda, and that was what he chose to do that morning.

14 In cross-examination, the appellant said that after he hurt himself, when he got into the Kenworth truck again to drive away he had got back into the truck from the ground. It was put to him that if this was so then obviously there was sufficient room to enter the cabin from the ground. The appellant's reply to this proposition was that he 'squeezed in' and was 'side stepping', otherwise the appellant maintained that there was insufficient room between the Kenworth and the Mazda.

15 Mr Dattoli gave evidence that he had parked the Mazda tray truck some distance to the right of the Kenworth on the night before the appellant's alleged accident. Mr Dattoli said that after parking next to the Kenworth he went around to the passenger-side, opened the passenger door and let his two dogs out of the vehicle. In cross-examination, Mr Dattoli said that the distance between the two vehicle was 'a good metre, I believe'. Mr Dattoli was cross-examined about an earlier statement he made to an investigator. In that statement there was reference to the gap between the vehicles being 800mm. In response to a question about that distance, Mr Dattoli said 'that was just a question asked of me by the investigator, what I would assume the minimum distance parked next to the Kenworth would have been'.

16 Mr Dattoli also gave evidence that he recalled that there was another truck to the right of the Mazda when he parked his vehicle. More specifically, Mr Dattoli gave evidence that, when parking his vehicle, he drove in between the Kenworth and this other truck. Notwithstanding Mr Dattoli's evidence about the presence of another truck, the appellant and Mr Sanders gave evidence that, when they were present the next morning, there was no other truck to the right of the Mazda.

17 In Zoukra v Lowenstern,[1] the Full Court said in respect of an appeal from a jury's verdict:

So far as the facts are concerned 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.[2]

18 The proposition that, upon an appeal from a jury's verdict, an appellate court must proceed upon the basis that the jury took the view of the evidence most favourable to the respondent has been stated and restated many times since the Full Court delivered its judgment in Zoukra v Lowenstern.[3]

19 As has also been said many times before, it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed where there is a conflict of testimony.[4]

20 In Calin v Greater Union Organisation Pty Ltd[5] - another case involving a plaintiff who was unsuccessful in her claim for damages before a jury - Brennan J said:

In this case ... it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention. It is not sufficient to show that that party has made out a strong case. Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.[6]

21 Finally, as was said by Gleeson CJ, in Swain v Waverly Municipal Council:[7]

The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly.[8]

...

So long as individual jurors act in accordance with the directions they are given, different jurors might be impressed by different parts of the evidence, or by different arguments of counsel. Jurors are instructed that they may take a selective approach to the evidence, and even to different parts of the evidence of a particular witness. They may arrive at their joint conclusions by different paths. There may be no single process of reasoning which accounts for a jury verdict.[9]

22 There were two relevant issues at trial: first, the issue of the distance between the Kenworth and the Mazda after Mr Dattoli parked the Mazda on the night before the appellant's accident; and secondly, whatever the distance between the vehicles, whether the appellant's injury was caused by a breach of the duty of care the respondent owed the appellant as his employer. These two issues were, of course, inter-related.

23 The short answer to this appeal is that the jury was entitled to accept the evidence of Mr Dattoli that he parked the Mazda of the order of 800 mm to the right of the Kenworth. Similarly, the jury was well entitled to conclude that parking the vehicle in this position did not involve any breach of the respondent's duty of care owed to the appellant. Contrary to the appellant's submissions, merely because the only witnesses to the accident were the appellant and the appellant's witness, Mr Sanders, does not mean that their evidence (or the appellant's case) was relevantly uncontested. The evidence of Mr Dattoli letting his dogs out the passenger side of the Mazda on the night before the alleged accident, and the evidence of the appellant being able to climb back into the Kenworth (without climbing on the Mazda) after the accident occurred, was open to be accepted by the jury as determinative against the appellant's case.

24 The appellant submits that 'the fact that the Mazda was parked too close finds some clear support in the evidence given by Mr Dattoli in evidence-in-chief'.[10] In making this submission, the appellant relies upon Mr Dattoli's evidence of a conversation he had with the appellant after the accident. Mr Dattoli's evidence was:

He [the appellant] said, 'slipped off the bloody Kenworth. I don't even know why I did it'. I [Mr Dattoli] said to him [the appellant], I said, 'I wasn't that close'. I didn't - actually I didn't say that, I didn't say that at all. I said, 'What happened? Why?'. Vince [the appellant] just didn't know, he still kept shaking his head 'It was just a dumb thing to do', I remember him saying.

25 The appellant submits that Mr Dattoli's statement 'I wasn't that close' is a 'clear indication that, contrary to the full version of the conversation as given by Mr Dattoli, ... the conversation adverted to the fact that the Mazda was too close to the Kenworth'.[11]

26 There are at least two problems with this submission. First, Mr Dattoli having said that he said 'I wasn't that close' then immediately recanted and said that he did

not say that. The jury was entitled to accept Mr Dattoli's correction. Secondly, even if Mr Dattoli said (contrary to his correction) 'I wasn't that close' this does not go anywhere near compelling a conclusion on liability in favour of the appellant. One possible meaning of the statement 'I wasn't that close' (if indeed it was said) is that it was hard to believe that the appellant had used the Mazda in the process of exiting from the Kenworth, given the distance between the vehicles.

27 In his submissions, the appellant also contended that the failure to call the driver of the other vehicle about which Mr Dattoli gave evidence was a matter that should have led to the jury drawing a Jones v Dunkel[12] inference against the respondent. Certainly the jury could have reasoned that way. But they were not bound to do so.[13]

28 In the present case (to borrow from the words of Brennan J in Calin v Greater Union Organisation Pty Ltd)[14] the jury might reasonably have refused to be satisfied about one or both of the issues on which the appellant bore the onus of proof. Having regard to the evidence to which I have referred, it could not be said that the appellant 'made out a strong case'. But even if it could be said that the appellant made out a strong case, that is not sufficient.[15] The jury was entitled not to be satisfied that there was any negligence on the part of the defendant.

[1] [1958] VicRp 94; [1958] VR 594 (Herring CJ, O'Bryan and Dean JJ).

[3] See Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 872 [29]-[30] and the cases referred to therein.

[4] See Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 441 (Latham CJ in dissent), but see the approval of this passage by the Privy Council on appeal from the High Court's decision in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, 130-1.

[5] [1991] HCA 23; (1991) 173 CLR 33.

[6] Ibid 46-7 (citations omitted). See further, the judgment of Mason CJ, Deane, Toohey and McHugh JJ at 41-2.

[7] [2005] HCA 4; (2005) 220 CLR 517.

[10] Outline of submissions on behalf of the appellant dated 25 February 2014, [11].

[12] [1959] HCA 8; (1959) 101 CLR 298.

[13] See generally, O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 384-5 [63]-[64]; and Wodonga Regional Health Service v Hopgood [2012] VSCA 326 [64]-[69] (Maxwell P, with whom Buchanan and Harper JJA agreed).

[14] [1991] HCA 23; (1991) 173 CLR 33, 46-7.