BELOVUKOVIC vy AUSTRALIAN TELECOMMUNICATIONS COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MCHUGH and CLARKE JA 26 August 1988, 26 August 1988 [1988] NSWCA 15 APPEAL — Verdict for defendant against the evidence and weight of evidence — incident to the plaintiff admitted — jury not bound to accept plaintiff's evidence as to date or manner of injury — not unreasonable for jury to hold plaintiff's account not prove negligence. NEGLIGENCE — Proximity — standard of care — special relationship — uncertificated crane driver — Cook v Cook (1986) 162 CLR 376 applied. ORDER Appeal dismissed with costs. McHugh JA This is an appeal by a plaintiff against a verdict for the defendantin an action for damages for personal injuries. The action was heard by Maxwell J and a jury of four. The principal ground of appeal is that the verdict was against the evidence and the weight of the evidence. As Mr Hudson conceded in his argument, this requires a finding by this Court that upon the evidence the verdict of the jury was perverse. As was said by Lord Wright in the House of Lords in Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 375, the test is not whether the verdict was right but whether the jury failed to perform its duty. In this particular case, however, the evidence adduced by the appellant stops very short of enabling the Court to say that the jury failed to perform its duty. The facts of the case, insofar as the appellant relies upon them, are carefully set out in the written submissions of the appellant and I gratefully adopt them. "The Plaintiff stated in evidence that he was assisting another employee of the Defendant to load a winch machine on to a motor truck of which the Plaintiff was the driver when he sustained his injury. The Plaintiff said that his foreman at the Emu Plains Depot ordered him to go to the Seven Hills Depot of the Defendant to pick up the winch machine and to bring it back to Emu Plains. The Plaintiff drove his truck to Seven Hills. There he spoke to the supervisor, Angelo. Angelo directed the Plaintiff to go to the Lidcombe Depot to pick up the machine but at Lidcombe the Plaintiff was told to proceed to Villawood. At Villawood there was a gatekeeper, one Johnson and no other employee at the time of the Plaintiff's visit. The Plaintiff had brought with him a docket from his foreman and he obtained Johnson's signature on the docket. This docket was given to his foreman on the return of the Plaintiff to Emu Plains and Johnson received a duplicate of the docket. Johnson showed the Plaintiff where to pick up the winch machine and the Plaintiff went to where the winch machine was situated to await the arrival of the crane driver who was apparently at lunch. The Plaintiff waited at the machine for 1 hour between 1.30 pm and 2.30 pm except for returning to see Johnson on 3 occasions. On the third occasion the Plaintiff volunteered to use the crane, but Johnson said that he would operate it. The truck was then placed in position by the Plaintiff about 8 feet from the winch because he could not get closer due to "machinery like scrap" preventing it taking up its position closer to the winch. The crane was placed to the rear of the truck and the parts to be loaded 2 UNREPORTED JUDGMENTS on to the truck were the bucket, legs and winch. In order to lift the legs section the Plaintiff placed the chain around the legs close to the head, but the hook of the crane would not reach the legs and the Plaintiff pulled the legs towards him about one foot in order to hook this section up. The Plaintiff was pulling the leg section towards him when he felt a very sharp pain in the back. He hooked the legs and the legs were loaded on to the truck. The Plaintiff went up on the table top to unhook the legs and then the Plaintiff hooked the winch which was then raised by the crane. The winch was loaded from the back of the truck and the Plaintiff climbed into the truck and stood close to the cabin. He gave a signal to lift the winch machine. The load dropped down and struck a support at the back of the truck causing the arms of the winch to move towards the Plaintiff. The Plaintiff twisted his body as the arm of the winch came towards him. The Plaintiff felt pain in the low back and in the right leg. The Plaintiff then drove his truck back from Villawood to Emu Plains, a distance of about 25 miles. At Emu Plains he spoke to his foreman Reppipi and told him that he had a very painful back. The Plaintiff says that he consulted Dr Lain after work finished on 30 September. The Plaintiff went to the Blacktown District Hospital on 12 November, 1978 because of a painful right leg. He again saw Dr Lain on 13 November. He continued to work despite a painful back until 20 November. The Plaintiff then consulted Dr Marinkovic and on 21 November was referred back to the Blacktown District Hospital. The Plaintiff was referred by Dr Marinkovic to Dr Bannister on 28 November. In my opinion, there were a number of reasons why the jury could reasonably reject the account of the plaintiff. It is true, as Mr Hudson has pointed out, that at the trial the defendant conceded that an incident occurred on 29 September 1978 which resulted in an injury for which compensation was payable. However, it is another question altogether as to whether the jury was required to accept the plaintiff's account of what occurred. There was evidence that the plaintiff had injured his back on an earlier occasion on 7 October 1977. On 27 November 1978 he saw Dr Bannister. The only injury to his back which he mentioned on that occasion when given a history was the incident of 7 October 1977; he made no mention of injury his back on 29 September 1978, a date some two months before seeing Dr Bannister. On 12 November 1978, when the plaintiff went to Blacktown District Hospital, he again made no mention of injury his back on 29 September. Also of great significance from the jury's point of view may have been the evidence of Dr RG Smith, who took a history from the plaintiff in which he gave an account of two injuries, one being the injury on 7 October 1977 and the second being the injury on 29 September 1978. According to the history taken by Dr Smith, the plaintiff said that on 29 September 1978 he "twisted his back when leaning over and developed severe pain radiating to the buttock on the right, but again with no sciatic pain". The jury was entitled to take the view that the account given to Dr Smith was totally inconsistent with the case which he sought to make at the trial as to the manner in which he sustained injury. In addition to these matters, the jury was also entitled to weigh against the plaintiff that he had wrongly identified three different persons as being the crane driver involved in the incident. It was, therefore, in my opinion, open to the jury to fail to be satisfied that the plaintiff's account of his accident was correct or, alternatively, to fail to be satisfied as to whether Mr Johnson was present at the time. UBELOVUKOVIC v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Clarke JA) 3 But even if the plaintiff had got over the credibility issue and his general account of the incident had been accepted by the jury, it was still necessary for him to establish negligence. Again, on the issue of negligence, it was open to the jury to find against the plaintiff. If the jurors accepted the plaintiff's account, they may well have concluded that his injury was caused by his own act in pulling the legs section of the winch towards him. If the jury did take that view of the case, they would be entitled to hold that there was no negligence on the part of the defendant and that the injury to the plaintiff was the result of his own act. Upon the facts adduced, the plaintiff was sent out to get the winch. There was apparently a crane at the site. The crane driver was away at lunch. The plaintiff and, on his account, Mr Johnson, elected to load the winch onto the truck without waiting for the crane driver to come back. Mr Johnson apparently was not a certificated crane driver. Indeed, it must have been known to the plaintiff that his position was that of a gatekeeper. Since Cook v Cook (1986) 162 CLR 376, it is clear that the doctrine of proximity not only determines whether a duty of care is owed, but it is also decisive as to the content of the standard of care when special and exceptional circumstances affect the relationship between a plaintiff and a defendant. The standard of care is that to be expected of parties in that special relationship. It was open to the jury in this particular case to take the view that the standard of care expected of Johnson was not that of a certificated crane driver, but that of a gatekeeper who, at the plaintiff's behest or at least with his concurrence, had agreed to load this winch on to this truck. In these circumstances, the jury may well have taken the view that, if the winch did hit the truck, in the manner which the plaintiff described, when it was being loaded, that did not constitute an act of negligence on the part of Johnson, having regard to his qualifications for the job. In the circumstances, there are no grounds for interfering with the jury's verdict on the basis that the verdict was against the evidence or the weight of the evidence. The second ground relied upon by Mr Hudson was that the trial miscarried because counsel for the defendant had sought to tender a statement which was ultimately ruled to be inadmissible. Mr Hudson complained that, as a result, although the contents of the statement did not get before the jury, nevertheless some preliminary questions which were led as the foundation for the tender of the statement would have prejudiced the jury. I need not set out the evidence in question. But having carefully read it, it seems to me that there is nothing at all there to suggest that it would have influenced a jury to find against the plaintiff. In addition, no application was made to discharge the jury. In these circumstances, this ground of appeal also fails. Accordingly, in my view, the appeal must be dismissed with costs. Hope JA I agree. Clarke JA I also agree. HOPE JA: The order of the Court is that the appeal is dismissed with costs. Counsel for the appellant: R Hudson Solicitors for the appellant: Brock Partners Counsel for the respondent: M. Ireland QC/M J McGrowdie 4 UNREPORTED JUDGMENTS Solicitors for the respondent: Australian Government Solicitor