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Surf Coast Shire Council v Webb & Anor; Webb v Norquay Nominees Pty
Ltd & Anor [2003] VSCA 162 (27 October 2003)
Last Updated: 29 October 2003

                                           SUPREME COURT OF VICTORIA

                                                  COURT OF APPEAL

No. 8635 of 2001

SURF COAST SHIRE COUNCIL                   Appellant
v.
GLENN ARNOLD WEBB                   First Respondent
and
NORQUAY NOMINEES PTY. LTD.       Second Respondent
 and -
GLENN ARNOLD WEBB                    Cross Appellant
and
NORQUAY NOMINEES PTY. LTD. Second Cross Respondent
v.
SURF COAST SHIRE COUNCIL     First Cross Respondent

                                                            ---

JUDGES:                  BATT and CHERNOV, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:              MELBOURNE
DATE OF HEARING:         17 and 18 September 2003
DATE OF JUDGMENT:        27 October 2003
MEDIUM NEUTRAL CITATION: [2003] VSCA 162

                                                            ---

Negligence - Employee of independent contractor - Liability of Shire for injury sustained by such employee in performance
of work - Collection of rubbish from public bins in Shire - Employee experienced in waste collection - Rubbish bin
overloaded with commercial waste and jammed in its stand - Knowledge by Shire of overloading and defects in bins -
Whether open to jury to find Shire breached duty of care to such employee - Contributory negligence - Apportionment -
Apportionment not unreasonable.

Damages - Loss of earning capacity - Proof of future economic loss by reference to amounts paid by employer to substitute
employees - Whether jury's award manifestly inadequate.

                                                            ---

APPEARANCES:                Counsel                 Solicitors
For the Appellant           Mr. S.W. Kaye, Q.C.     Hunt & Hunt


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                            with Mr. J.J. Noonan
For the First Respondent    Mr. G.A. Lewis            Petersons

                          with Mr. W.C. Grainger
For the Second Respondent Mr. R.H. Smith         Blake Dawson Waldron

BATT, J.A.:

  1. I agree with Chernov, J.A.

     CHERNOV, J.A.:

  2. On 16 November 2000 the first respondent ("the plaintiff") brought proceedings in the County Court against the
     appellant ("the Shire") and the second respondent ("Norquay") claiming damages for personal injuries suffered by him
     on 7 February 1997 when he sought to lift a bin, containing rubbish, from its stand opposite Norquay's delicatessen
     shop in Anglesea which is within the municipal district of the Shire. The action was brought after the Victorian
     WorkCover Authority issued to the plaintiff a certificate pursuant to s.135A(4)(a) of the Accident Compensation Act
     1958 ("the Act") that it was satisfied that the injury in question was a serious injury within the meaning of the Act and
     that it consented to the plaintiff bringing proceedings in respect of it.

  3. The circumstances giving rise to the proceedings were these. At all relevant times the plaintiff and his wife were the
     sole shareholders and directors of a company, Magic Chook Commercial Cleaners Pty. Ltd. ("the company"), which
     had entered into a contract with the Shire to clean toilet blocks and collect rubbish from various public bins located
     throughout the municipality. Although part-time workers were employed by the company from time to time for that
     work, it was the plaintiff who performed nearly all of the garbage collection and toilet cleaning on its behalf. One of
     the 174 steel bins which the plaintiff was required to empty sat, as I have mentioned, in its stand outside the Norquay
     shop. The bins were intended to be receptacles for small items of rubbish that the passing public might wish to dispose.
     In the main, the bins had no handles or like protruding parts which could be easily grasped so that they could only be
     lifted by being taken by the relatively thin outer lip which formed their top outer perimeter. Thus, when full,
     considerable effort was required to remove them out of the cradles. The difficulty was

     accentuated, and a correspondingly greater effort was required to lift a full bin, where the bottom of it became jammed
     into the base of the cradle, something which occurred when the bottom portion of the bin became mis-shaped for one
     reason or another.

  4. Not long after the Norquay shop commenced its operations, which was shortly before Christmas 1996, the plaintiff
     noticed that the rubbish bin in question was almost overflowing with large plastic bags which the plaintiff eventually
     found contained commercial refuse from the shop. This added considerably to the weight of the bin and required a
     correspondingly greater effort to lift it out for the purpose of emptying it. In the early hours of 7 February 1997, when
     the plaintiff came to empty the bin, he found that it was filled with large, black plastic bags. For present purposes it can
     be assumed that they came from the Norquay shop. He removed the top bag and threw it into his rubbish truck. He then
     sought to lift the heavy bin out of its cradle but found it was jammed into the base of the stand. In order to move it, he
     said, he gave it "a violent jerk" and, as a result, experienced pain in both arms, predominantly in his upper right arm
     and his shoulder (biceps). As a result, the plaintiff called upon a fellow employee, Gary William Pigdon ("Pigdon"), to
     assist him and together they lifted the bin out of its stand and proceeded to empty its contents. The plaintiff then
     continued with his round.

  5. Not long after the incident the plaintiff sought medical attention for his injury which was ultimately diagnosed as a torn
     rotator cuff. He was referred to Mr. Brink, an orthopaedic surgeon and, in June 1997, he underwent arthroscopic
     surgery on his shoulder. Because of the injury, the plaintiff was unable to work during the period between the accident
     and the operation and thereafter he was off work for a further eight months. Upon his return to work, he initially
     performed light duties and it was not until May 1998 that he was able to resume normal work activities. During his
     incapacity, the plaintiff arranged for the company to employ others to perform the work that he was unable to do.

  6. Shortly after the plaintiff resumed full-time duties, in May 1998, he suffered another, similar, injury after he attempted
     to remove a bin at Aireys Inlet which had apparently been filled with commercial waste and which was very heavy.
     Another "reconstruction" of his shoulder was performed in October 1998 in respect of that injury. The doctor who
     examined the plaintiff some time after the second injury, observed that the initial tear had only healed partially.


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  7. The plaintiff suffered yet another, like injury when, in April 1999, he slipped on the wet, plastic steps leading to the
     cabin of his truck as he was climbing into it. He sustained injury to his right arm and shoulder when he endeavoured to
     avert his fall by grabbing on to the handle of the truck. As a result, he underwent an operation in November 1999 in
     respect of that injury, which Mr. Brink described as "a ruptured biceps tendon" or a "fraying" of the biceps tendon and
     as being related to the 1997 accident. He said that, as a consequence, the plaintiff had muscle weakness of the right
     shoulder. Mr. Brink concluded that both injuries would have "made contribution towards the degeneration of the
     tendon which subsequently resulted in the tendon rupturing".

  8. The evidence of Mr. Brink was largely confirmed by that of Mr. Huffam, another orthopaedic surgeon. He stated that
     an MRI scan had revealed that there was considerable damage to the tendons around the plaintiff's right shoulder and
     that, after the second injury, there had been further tearing of the rotator cuff. It was also Mr. Huffam's view that the
     injuries were cumulative, that is, although the plaintiff had made a good recovery after the first injury, due to the nature
     of the healing of the rotator cuff (it being by scar tissue rather than by tendon tissue, which is stronger) the shoulder
     was such that it remained susceptible to further injury.

  9. At trial, the plaintiff's essential case against the Shire was that, in breach of its duty to him, it failed to take reasonable
     steps:

            (a) to prevent the dumping of commercial rubbish in excessive quantities in the bins which the plaintiff
            was required to empty;

            (b) to provide suitable - appropriately designed - bins

            and that this was a cause of his injury. The Particulars of Negligence provided by the plaintiff in his
            Statement of Claim essentially alleged a failure by the Shire to provide a safe system for the collection of
            rubbish from public bins such as the one in question, in that, for example, there was a failure by the Shire
            to provide bins which restricted the amount and type of refuse that could be placed in them. It was also
            alleged that the Shire failed to take adequate steps to prevent Norquay from depositing excessive amounts
            of commercial rubbish in the bin notwithstanding that it knew that Norquay had been misusing the bin in
            that way on previous occasions.

 10. The plaintiff's allegation against Norquay was essentially that, in breach of its duty to him, it deposited commercial
     waste in excessive amounts in the bin in question in the knowledge that such conduct was unlawful and that it caused
     the bin to be unduly heavy. Each of the Shire and Norquay, in addition to denying negligence, alleged that the plaintiff
     was guilty of contributory negligence.

 11. The matter came on for hearing in the County Court at Geelong on 14 November 2001 before a judge and jury and,
     after a trial that lasted five days, the jury found as follows:

            (a) each of the Shire and Norquay was negligent and that such negligence was a cause of the plaintiff's loss
            and damage;

            (b) the plaintiff's pecuniary loss was $180,000 and his non-pecuniary loss $50,000;

            (c) there was contributory negligence on the part of the plaintiff of 10 per cent;

            (d) the negligence of the Shire and Norquay was apportioned 78 per cent and 22 per cent respectively.

            In accordance with the jury's verdict the judge, on 27 November 2001, gave judgment for the plaintiff in
            the sum of $230,000 reduced by $117,748 pursuant to s.135A(11) of the Act to $112,252, and reduced
            further by 10 per cent for contributory negligence to a net amount of $101,026. His Honour also awarded
            damages in the nature of interest of $4,650 thereby bringing the total amount of the judgment to $105,676.

 12. The Shire instituted an appeal against each part of the verdict and orders by way of notice of appeal dated 7 December
     2001. In essence it contends that:

            (a) the jury's finding that it breached its duty of care to the plaintiff was against the evidence and the
            weight of the evidence;

            (b) the finding that Norquay was entitled to contribution from it in the proportion of 78 per cent of the
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            award of damages was also against the evidence and the weight of it;

            (c) in assessing the plaintiff's contributory negligence at 10 per cent the jury failed to consider sufficiently
            the extent to which the plaintiff contributed to his own injury; and

            (d) the jury's finding that the plaintiff was entitled to damages for pecuniary loss in the sum of $180,000
            was against the evidence and the weight of it.

 13. The plaintiff filed a cross-appeal against the Shire and Norquay. So far as is relevant, it contended that the verdict of
     the jury as to the amount of non -pecuniary loss was manifestly inadequate given their acceptance of the causal
     relationship between the three incidents and his total pain, suffering and loss of amenity. I now turn to consider the
     arguments on the appeal and cross-appeal.

      Shire's breach of duty

 14. In support of his principal case that the jury's finding against the Shire was against the evidence and the weight of the
     evidence, Mr. Kaye argued that the duty of care which the Shire owed to the plaintiff was narrower in compass than
     that which an employer owes to an employee and its ambit was to be determined in the context of the contract between
     the Shire and the company. In that respect, counsel relied principally on what was said in the various judgments of the
     High Court in Stevens v. Brodribb Sawmilling Co. Pty. Ltd.[1] to which I will refer later. The contract, said Mr. Kaye,
     bound the company and the plaintiff, as the company's alter ego, to:

      - ensure that a safe workplace was provided at all times

      - be aware of the risks associated with the works

      - engage sufficient employees with adequate skills and training

      - carry out works in an efficient manner

      - notify the Shire if there were any problems relating to the bins or the removal of rubbish.[2]

      Another factor which pointed to the narrow ambit of the Shire's duty of care to the plaintiff, said Mr. Kaye, was the fact
      that it was the plaintiff, and not the Shire, who had the expertise in the cleaning industry and that it was he who was in
      the best position to assess the risks, to protect himself from them and to identify problems which required remedying.
      Thus, it was submitted, it was the plaintiff, and not the Shire, who was best equipped to know whether he should have
      lifted the bin in question, whether it was overloaded, whether it might jam and whether he needed assistance in lifting
      it. Counsel pointed out that the Shire engaged the company essentially because, through the plaintiff, it had the relevant
      expertise to make those assessments and, having made them, to carry out the contract safely and efficiently. Thus, it
      was said, any residual obligation owed by the Shire to the plaintiff was limited and in narrow compass and, on the
      evidence, it was not reasonably open to the jury to find that it had breached its duty of care.[3]

 15. It was put by Mr. Lewis for the plaintiff and by Mr. Smith for Norquay that the extent of the duty owed by the Shire to
     the plaintiff was not materially different from that owed by an employer to his employee. It involved, so it was said,
     the provision of a safe system of rubbish collection so far as the plaintiff was concerned. Mr. Smith argued that if it
     were otherwise the Shire could escape liability by sacking its employees and re-employing them as independent
     contractors and claiming that by reason of that, it owed them a lesser duty of care.

 16. It was also submitted for the Shire that there was no evidence that it was responsible for the overloading of the rubbish
     bin by Norquay or that the bin was of defective design, or that it was unreasonable for it not to have used a bin of a
     different design which would limit the amount of rubbish that could be deposited in it at any one time and that would
     not stick in its stand. More particularly, it was argued by Mr. Kaye that, until the plaintiff had complained to the Shire
     about Norquay's use of the bin, the Shire was unaware that this was taking place. Counsel then said that, upon receipt
     of that complaint, Shire officers spoke with representatives of Norquay and directed them not to place its commercial
     rubbish in street bins and effectively threatened it with prosecution if the practice continued. Thus, it was said, the
     Shire took reasonable steps to control the overloading problem.

 17. I now turn to the question of the ambit of the Shire's duty of care that it owed the plaintiff. In general terms, the cases
     that deal with the duty of care of a principal to an employee of an independent contractor who is engaged by the
     principal to do work for its benefit, seem to indicate that the principal owes a duty to such an employee to act
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     reasonably in relation to such aspects of the project that remain under its control or supervision, where it is reasonably
     foreseeable that harm could be done to a person in the position of the employee if it failed to exercise due care and
     skill. But the ambit of that duty, it would appear, is not the same as that owed by an employer to an employee,
     although, depending on the circumstances, it may be similar. In Stevens, for example, the respondent (Brodribb)
     operated a large sawmill and, in that context, was involved in large scale logging operations. It engaged the appellant
     (Stevens) to cart logs to the mill from its logging area. It was a term of the contract between them that Stevens would
     use his own truck to cart the logs. Brodribb also engaged one Gray to snig and load logs onto Stevens' truck, using his
     own tractor. While Gray was performing that function, he negligently dislodged a log which rolled onto Stevens,
     causing him severe injuries. Stevens sued Gray and Brodribb for damages. The High Court held that, while Brodribb
     was not an employer of Stevens, it owed him a general duty of care, although the majority concluded that it did not
     breach that duty. Essentially, their Honours considered that matters which pointed to Brodribb being under such a duty
     included the fact that the logging operations were conducted for its benefit, that it had the overall responsibility for co-
     ordinating and organising the work that was to be performed by the independent contractors and others in logging
     operations, that those involved in the operation relied on Brodribb for such organisation and co-ordination and that it
     was reasonably foreseeable that there was a risk of injury to a worker if reasonable care was not taken by Brodribb in
     the performance of its organisational role. Thus, Mason, J., with whom Brennan, J. agreed in this respect[4] said[5]:

            "While individual fellers, sniggers and truck drivers may have been responsible for their own safety with
            regard to carrying out their own functions, they had little choice but to rely on the care and skill of
            Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the
            persons engaged by Brodribb in the execution of the work. The interdependence of the activities carried
            out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal
            injury to those engaged in the operations, called for the prescription and provision of a safe system by
            Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk
            of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to
            an employer, there is no reason why it should be so confined. If an entrepreneur engages independent
            contractors to do work which might as readily be done by employees in circumstances where there is a risk
            to them of injury arising from the nature of the work and where there is a need for him to give directions
            as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation
            to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right
            to control them in the manner in which they carry out their work, should not affect the existence of an
            obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its
            inability to direct the contractors as to how they should operate their machines."

     Similarly, Wilson and Dawson, JJ. considered that matters such as Brodribb's supervisory and co-ordinating functions
     in respect of the overall logging operations in which Stevens participated, and the reasonable foreseeability that harm
     could be done to workers like Stevens if Brodribb's obligations were not carried out with due care and skill, provided a
     basis for a duty of care in that company towards Stevens. Their Honours said that such a duty was a duty to exercise
     reasonable care in the co-ordination of the activities of the various contractors. And Brennan, J. recognised[6] that an
     entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable
     care in organising that activity to avoid or minimise that risk.

 18. But their Honours considered that the content, or extent, of that duty was lower than that owed by an employer to an
     employee. Relevantly, Wilson and Dawson, JJ. said[7] that, in determining the scope or extent of the duty owed by
     Brodribb to its independent contractor Stevens, the independent functions of the contractors would have to be taken
     into account so that the duty owed would be "something less than that owed by an employer to his employees. To
     equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstances
     which differentiate the contractors from employees." Brennan, J. also recognised[8] that, although "an entrepreneur"
     which organises an activity involving a risk of injury to those engaged in it, is under a duty to use reasonable care in
     organising it in order to avoid or minimise that risk, its duty is more limited than that owed by an employer to an
     employee. His Honour went on to explain:

            "The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of
            injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other
            risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage
            the services of independent contractors who are competent themselves to control their system of work
            without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to
            retain and exercise a supervisory power or to prescribe the respective areas of responsibility of
            independent contractors if confusion about those areas involves a risk of injury. But once the activity has
            been organised and its operation is in the hands of independent contractors, liability for negligence by

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            them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no
            failure to take reasonable care in the employment of independent contractors competent to control their
            own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors'
            respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent
            failure of an independent contractor to adopt or follow a safe system of work either within his area of
            responsibility or in an area of shared responsibility."

 19. Similarly, in McArdle v. Andmac Roofing Co[9], to which reference was made in Stevens, the English Court of Appeal
     considered that the head contractor which arranged with sub-contractors to undertake certain structural repairs and
     alterations to buildings in a holiday camp, and which co-ordinated and directed the work carried out at the site, owed a
     duty of care to an employee of one of the sub-contractors who sustained injury when he inadvertently fell through a
     hole in the roof in respect of which there was no barrier or obstruction placed to prevent such an accident. In Gahagan
     v. Taylor Bros. (Slipway & Engineering) Pty. Ltd.[10] the court held that Incat Tasmania Pty. Ltd.("Incat"), which had
     engaged the plaintiff's employer - the first defendant - as an independent contractor to perform certain works on the
     hull of the vessel that was being constructed by it, owed a duty of care to the plaintiff. The plaintiff claimed he suffered
     nervous shock when he rendered assistance to a fellow employee who was injured when he fell while attempting to
     access an area known as an "inboard curve". The trial judge found that Incat controlled the work site and designated
     the work that was to be done by the independent contractors. His Honour also found that there was a risk of a person
     accessing the inboard curve falling and injuring himself in the absence of a safe system for doing so. In concluding that
     Incat owed the plaintiff a duty of care to provide a safe system of work, his Honour said[11]:

            "As to its own employees, Incat had a clear obligation to provide and implement a safe system of
            accessing the inboard curve and, in the circumstances, I can see no reason for absolving Incat from a
            similar obligation as to the provision of a safe system of access to workers such as [the plaintiff], who
            were not employed by Incat, but who Incat knew were required to access the inboard curve in its
            interests".

      In Rockdale Beef Pty. Ltd. v. Carey[12] the New South Wales Court of Appeal considered that the appellant, an owner
      of a feedlot, owed the plaintiff, who was an independent contractor, a duty of care and was thus liable for the injuries
      he suffered when he attempted to herd a steer back to its pen. When the plaintiff had moved past the steer in order to
      herd it back into its pen, the steer swung in front of the appellant's horse causing him and the horse to fall. The Court of
      Appeal considered that the appellant had sole control over the configuration of the workplace and the system of work
      there and that, in the circumstances, it owed the plaintiff a duty to take reasonable care for his safety. Ipp, J.A., with
      whom Mason, P. and McColl, J.A. agreed, said[13]:

            "[The plaintiff] had no control over the configuration of his workplace. That was in the sole control of [the
            appellant]. [The plaintiff] had no control over where he had to work and what work he had to carry out. He
            was instructed by [the appellant] as to these matters including the system of work that he needed to
            follow".

 20. On the other hand, in Hetherington v. Mirvac Pty. Ltd.[14] Wood, C.J. at CL considered that neither Mirvac Pty. Ltd.
     ("Mirvac") - for whom the buildings were being constructed - nor Boral Roof Tiles Ltd. ("Boral"), which had
     contracted with Mirvac to supply roofing tiles for the project and which employed the plaintiff's company as a sub-
     contractor to fix the roof tiles, owed a duty of care to the plaintiff who was injured when he fell through fibro sheeting
     onto a concrete floor on the construction site. His Honour distinguished McArdle and Stevens, saying [15] that Mirvac
     and Boral were not "directly involved in the co-ordination, supervision or direction of the work undertaken by the
     various sub -contractors". But his Honour acknowledged that, "had the work been carried out by them in close
     proximity, such as to require co-ordination or supervision by either of those defendants, then McArdle or Stevens
     would have been more in point". His Honour considered that the plaintiff "was in a position to assess the job, and to
     apply its own expertise in the way that it or he went about the necessary work [and that there was] no reason to suppose
     that the various sub -contractors were other than competent themselves to control their system of work without
     supervision by, or direction from, Mirvac or Boral".

 21. As I have said, the Shire now accepts that it owed the plaintiff a general duty of care and its case on appeal was that,
     because of the narrow scope of that duty, it was not reasonably open for the jury to find on the evidence that it
     breached that duty. It may be accepted for present purposes that the ambit of the duty that was owed by the Shire to the
     plaintiff was narrower than that owed by an employer to an employee. The content of the duty must, of course, be
     determined by reference to all the relevant circumstances of the case. It is also the position that, here, the employment
     of the plaintiff, through his company, by the Shire was not a device whereby the plaintiff was effectively re-employed
     by it through a corporate structure that he controlled, as was the position, for example, in Brambles Ltd. v .Wail;

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      Brambles Ltd. v. Andar Transport Pty. Ltd.[16]. As Mr. Kaye pointed out, the Shire employed the company at "arms
      length" because of the plaintiff's relevant expertise and it did so pursuant to a contract which required the company to
      provide, inter alia, "a safe workplace" for its employees. Importantly, the Shire in this case did not have the
      responsibility or power to co -ordinate or relevantly direct the plaintiff in respect of the work that he was required to
      perform in emptying the public rubbish bins.

 22. On the other hand, the Shire did retain relevant control in respect of the bins in terms of matters such as their design
     and structure, the type of stand in which they were placed, the size of the opening through which rubbish could be
     deposited and the category and amount of rubbish that could be physically and lawfully placed in them. It also had the
     power to take enforcement action against those it knew or believed contravened its laws in that regard. Consequently,
     to the extent that the design and structure of the bins and their contents could be said to pose or create a reasonably
     foreseeable risk of injury to those persons engaged by it to empty them, the Shire was under a duty of care to them to
     take reasonable care not to subject them to that risk.

 23. It is in this context that the question whether it was open to the jury to find that the Shire breached its duty to the
     plaintiff must be analysed. More specifically, the critical questions are whether it was reasonably open to the jury to
     conclude that the Shire failed to take reasonable steps to prevent Norquay from placing commercial waste in the bin in
     question and/or to provide properly designed bins into which large bags of rubbish could not be placed and which did
     not stick in their stand and thereby require additional effort to lift them when filled. This necessitates a brief
     examination of the evidence given at the trial in respect of those and related matters.

 24. It seems clear enough that there was evidence before the jury, which they could have properly accepted, that the
     plaintiff complained to a representative of the Norquay shop in late December 1996 or January 1997 about its actions
     of depositing large, heavy bags of commercial waste in the bin and that this had made it more difficult for him to
     empty them. He also told the shop representative that the extra rubbish made it a more costly operation for him because
     he was required to pay additional tip fees in respect of it. Importantly, it was also clear that the plaintiff complained
     about the matter to the Shire in January 1997, and possibly during the preceding December. There was evidence from
     Leslie George Mitchell ("Mitchell") - the Shire's Contract Administrator at the time - that he spoke about the matter to
     the proprietor of the Norquay shop in February 1997. He said that he first telephoned him and spoke about the
     plaintiff's complaint and told him that it was unlawful for the shop to place its waste in the public bin. Mitchell further
     said that he followed up his telephone call by visiting the Norquay shop with the plaintiff and repeating his warning to
     the proprietor. Matthew Charles Jackman ("Jackman"), who was then the Shire's supervisor of its contract with the
     company, told the jury that the plaintiff contacted him in early 1997 in relation to the commercial waste that was being
     dumped outside the Norquay shop and that, as a result, he visited the shop and spoke to the manager and told him that
     what they were doing in that regard was a breach of the law. This visit probably occurred after the accident, or it was
     open to the jury to so find, because Jackman said that on the day following the visit, namely 5 March 1997, he sent a
     follow up letter to the shop.

 25. On the question of the state of the public bins which the plaintiff had to empty and the Shire's knowledge of this, the
     evidence was to the following effect. The plaintiff said in his evidence in chief, in answer to the question, why it took
     him a lot of effort to lift bins of the type in question that "the bottom of the bin used to stick ...a little bit" and that it
     was not just "all weight". He said that it was the bad design of the bins that caused the problem and that, if the side of a
     bin was kicked in (or otherwise mis-shaped) it would not fit properly into the cradle and, if it was weighed down with
     rubbish, "sometimes they could be a problem". He then said in cross-examination that it was not uncommon for him to
     have a problem with the bins because some would stick in the cradle and some, including the one in question, would
     jam on a regular basis. The plaintiff further said that the jamming was due to its design and that "it had been mentioned
     to the Shire that they were a bad design." In the circumstances, I consider that it was plainly open to the jury to
     conclude that many bins, including the one in question, jammed for the reasons given by the plaintiff and that he had
     complained about it to the Shire before the accident. Similarly, it was well open to the jury to accept that, as the
     plaintiff said, the bin was "renowned for getting jammed a little bit" and that, at the time of the accident, it was the
     combination of the excessive weight of the bin and its sticking in the cradle that required him to "jerk" it in order to lift
     it. Such a conclusion was open notwithstanding that the evidence was subjected to a great deal of criticism by Mr.
     Kaye. For example, counsel pointed out that the plaintiff was equivocal when asked whether the difficulty in lifting the
     bin was its weight or because it stuck to the bottom of the cradle. In response the plaintiff said: "Probably a
     combination of both, I'm not really sure but it could be a combination of both. The bin was damn heavy. The bin was
     renowned for getting jammed a little bit, those designs were." No doubt when the bin was heavy, even if it stuck "a
     little", it resulted in a considerable increase in the resistance it offered to being extracted from its cradle. It also seems
     plain enough that it was well open to the jury to have accepted the medical evidence that the injury was probably the
     result of a jerking, rather than a mere lifting, action on the part of the plaintiff.


http://www.austlii.edu.au/au/cases/vic/VSCA/2003/162.html                                                               17/03/2004
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 26. Thus, I consider that it was open to the jury to find that the bins which the Shire chose to place in public areas and
     which it arranged for the plaintiff's company to empty, had a fault whereby, if mis-shaped, their bottom would stick in
     the base of the cradle thereby requiring the application of extra force in order to lift them. It was further open to the
     jury to find, as I have said, that the Shire was told of this fault before the accident and yet did nothing about that
     problem. Consequently, they could have properly concluded that the Shire breached its duty to the plaintiff by failing
     to exercise due skill and care in maintaining the bins so as not to expose those who were required to empty them to
     injury when seeking to jerk them loose from the base of the cradle. In that context, it seems also plain enough that the
     jury could have taken the view that it was unreasonable for the Shire not to attempt to prevent the deposit of
     excessively large and heavy rubbish bags in the bins by the simple step of fitting them with lids which limited the size
     of the rubbish bags that could be placed in them.

 27. There was some debate before us as to the need for expert evidence in relation to rubbish bins that are of a character
     different from the bin in question. It was said, for example, that there was no evidence before the jury as to the nature,
     and the use by public authorities, of "wheelie" bins so that it was not open to the jury to find that it was negligent of the
     Shire not to have replaced the bins in question with "wheelie" bins. But it was open to the jury to conclude, without the
     aid of expert evidence, that the Shire should have placed on the bins lids with a small opening thereby inhibiting the
     deposit of large quantities of commercial waste in such bins. Such a conclusion could be reached on the basis of
     common sense and the day -to-day experience of jury members.

 28. There is, of course, much force in Mr. Kaye's claim that the plaintiff was in a good position to assess the risk involved
     in lifting a heavy bin when it was jammed and to protect himself against the possibility of injury by seeking the
     assistance of his colleague once he knew that it was heavy. But that goes to the question of contributory negligence and
     does not absolve the Shire from its duty to take reasonable care to preclude risk of injury to the plaintiff in the way I
     have described.

 29. I mention for completeness that I also consider that it was also open to the jury to find that they were not satisfied that
     the Shire had taken any real steps before the accident to stop the Norquay shop from misusing the bin in the manner
     described. Mitchell, for example, said in his evidence, as I have mentioned, that he first contacted Norquay about the
     matter "in February" without stating whether it was before or after the accident. Although he was called by the
     plaintiff, the Shire's counsel did not suggest to him, or otherwise adduce evidence, that he first spoke about the
     plaintiff's complaint to Norquay before the accident. In the circumstances, the jury could well have taken the view that
     it was not satisfied that such a discussion took place before the accident. And, as I have said, it was well open to the
     jury to conclude that Jackman went to the shop after the accident. Thus, I consider that it was open to the jury to
     conclude that the Shire did not take sufficient steps to prevent Norquay placing its commercial waste in the public
     rubbish bin when it knew that such unlawful conduct was occurring and that it added substantially to the weight of the
     contents of the bin thereby increasing the risk of injury to someone in the plaintiff's position when attempting to jerk it
     out of its stand.

 30. In the circumstances, I consider that it was well open to the jury to conclude that the Shire breached its duty of care to
     the plaintiff. Consequently, I think that this aspect of its appeal should fail.

      Contribution

 31. It was next argued for the Shire that the apportionment by the jury of liability as between the three parties was against
     the evidence and the weight of it. In particular, it was said on its behalf in relation to the apportionment between itself
     and Norquay that, since Norquay placed its commercial waste in the bin with full knowledge that its conduct in that
     regard was unlawful and that this action caused the bin to be unduly heavy, it should be regarded as being the
     substantial wrongdoer and, consequently, should have been held liable for the bulk of the plaintiff's injury. It was
     pointed out that Norquay's acts in that regard were deliberate and, therefore, involved it in a high degree of culpability
     on its part. Furthermore, it was claimed, given that the jury must have concluded that Norquay loaded 40 kilograms of
     rubbish into the bin notwithstanding that it received a complaint about it from the plaintiff (and a direction from the
     Shire to cease such conduct) the apportionment made by them demonstrates that they did not take the culpability of
     Norquay's conduct sufficiently into account in arriving at that conclusion. Mr. Kaye highlighted that, on the plaintiff's
     evidence, the primary cause of the injury was the overloading of the bin by Norquay. Counsel accepted that, as a
     general rule, appellate courts are slow to disturb an apportionment made by a jury - see, for example, Podrebersek v.
     Australian Iron & Steel Pty. Ltd[17]- but here, it was said, the error for which the Shire contends is obvious enough
     and justifies appellate intervention.

 32. It was argued for Norquay, on the other hand, that there was no basis for interfering with a jury's decision on this
     aspect of its apportionment. Mr. Smith submitted that, in making the apportionment, the jury would have had present to

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      its mind that Norquay put the rubbish in the bins notwithstanding that a complaint had been made to it about its
      conduct in that regard. But, said counsel, the jury would also have borne in mind that Norquay was not told that an
      injury might result from its conduct and that the Shire effectively did little to stop it from engaging in such behaviour,
      nor did it take any steps to prevent the depositing of large scale rubbish bags.

 33. In my view, as I have said, it was open to the jury to conclude that there was a deficiency in the design of the bins
     which created the "sticking" problem to which I have referred and that this was a major contributing factor which
     required the plaintiff to attempt to "jerk" the bin out of the cradle and thereby sustain an injury. Moreover, as I have
     pointed out, in the circumstances, it was also open to the jury to find that the Shire knew of this design defect before
     the accident and that it did nothing to remedy that situation notwithstanding that it was aware of Norquay's unlawful
     actions in that regard. In the circumstances, it was open to the jury to conclude that the Shire should shoulder the bulk
     of the liability for the plaintiff's injury. Similarly, I consider that it was open for the jury to fix the plaintiff's liability in
     the proportion of 10%. Thus, I cannot accept the Shire's claim that the jury's apportionment as between the three parties
     was manifestly erroneous. Consequently, I think that this aspect of the Shire's appeal must also fail.

      Economic loss

 34. The Shire's contention that, on the evidence, it was not open to the jury to find that the plaintiff's pecuniary loss
     amounted to $180,000 was grounded essentially in the proposition that the only evidence that was led by the plaintiff
     on this issue consisted of hearsay evidence of what the company paid to its employees who were hired after the
     accident to perform the work that would otherwise have been done by the plaintiff. The Shire contended before us that
     this did not amount to evidence of the plaintiff's financial loss in terms of impairment of his own earning capacity
     occasioned by the accident and that the case fell within Victorian Stevedoring Pty. Ltd. v. Farlow[18]. In that context,
     counsel relied on what was said in that regard in Husher v. Husher[19]. In that case the High Court relevantly said that
     the calculation of future economic loss requires the identification of what earning capacity has been impaired or lost
     and what financial loss has been occasioned by that impairment or loss. Here, the plaintiff clearly claimed that his
     injuries had resulted in his inability to perform physical work of the kind in which he engaged throughout his working
     life and that this had produced a loss of earning capacity that translated into a financial loss that was to be measured, in
     quantitative terms, by reference to the amount that had to be paid by the company for substitute labour. It is clear
     enough that the plaintiff gave this evidence in order to establish "the extent to which he lost income". It must also have
     been apparent to the jury that, although he made the calculation by reference to what he said "he" paid the substitute
     employees, he was really speaking about the company having made payments to them. His said that his calculations in
     respect of the period between February 1997 and the trial showed that "he" paid out approximately $120,000 to
     substitute employees and it was on that basis that the relevant calculations were made for his claim for economic loss
     arising out of the accident.[20] It is true, as the Shire contended on appeal, that the plaintiff's evidence on the issue of
     what was paid to the substitute employees was hearsay, in the sense that he spoke of the contents of the documents on
     this issue, but no objection was taken to that form of evidence at trial and, therefore, the jury could have properly acted
     on it.

 35. The Shire further argued that in any event, material before the jury about the cost of replacement labour was so
     deficient that no reasonable jury, properly instructed, could have accepted it. It was said that the plaintiff's claim was
     not supported by any records and that the jury was entitled to infer on the basis of Jones v. Dunkel[21] that the
     company's documents on the matter would not have supported his claim. The latter point was not pressed with force
     before us and, in my view, rightly so, because the claim is without substance bearing in mind that the plaintiff did bring
     with him various source documents like group certificates into the witness box and he was cross-examined on them,
     yet no attempt was made by the Shire to tender them in evidence.

 36. It is trite that in the assessment of damages the court must do the best it can in circumstances such as the present, given
     that, essentially, the plaintiff was self-employed through the company and that it was obvious that there was a paucity
     of records on the matter relevant to the assessment of his loss of earning capacity. In paragraph 5.5.1 of Assessment of
     Damages for Personal Injury and Death[22], to which Ashley, A.J.A. referred in the course of argument, there is a
     reference to the observation of Moffit, P, in Dunlany v. Hunters Hill Bus Co. Pty. Ltd.[23] that is apposite to the
     present circumstances, namely, that in Blaseotto v. Wilson[24] "and other similar cases the Court had resorted, as a
     guide, to the level of wages paid to an employee performing work which the owner or partner could not do. What it
     would cost to employ somebody else for the time he could not work, or what he might earn if he had sought
     employment himself, is capable of providing some guide as a basis from which an estimate of the loss to the business
     or to him can be made". The learned author observed that it could be "no more than a guide, since ... persons who
     devoted themselves to unprofitable businesses apparently cannot recover more damages for loss of earning capacity
     than they would have derived from their business if they had not been injured ....". It is plain enough that the evidence
     given by the plaintiff about the amounts paid to substitute employees could have been properly regarded by the jury as

http://www.austlii.edu.au/au/cases/vic/VSCA/2003/162.html                                                                   17/03/2004
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      establishing a guide to the level of loss suffered by him as a consequence of his injuries.

 37. Furthermore, I consider it relevant for present purposes that it was not suggested to the plaintiff in cross-examination
     by the Shire that the loss he so claimed was not his loss. Moreover, as Mr. Lewis pointed out, that the Shire did not
     object to his Honour's charge relating to damages for economic loss or to the plaintiff's evidence to which I have
     referred, meant that the jury had evidence before them of the value of the plaintiff's labour. Also, in his address to the
     jury, the Shire's experienced counsel seems to have accepted that the plaintiff's evidence, which is now under
     challenge, was in fact put to the jury as going to the issue of his economic loss. In the circumstances, it seems to me, it
     was open to the jury to use that evidence as a guide in determining the plaintiff's economic loss occasioned by the
     accident. Consequently, I would also reject this aspect of the Shire's case.

      Cross-appeal

 38. I now come to the plaintiff's cross-appeal in which he contends that the amount awarded to him by the jury for general
     damages is manifestly inadequate, a matter which he must establish if appellate intervention is to be secured[25].

 39. In that regard, his counsel pointed to the fact that, at the time of the trial, the plaintiff was aged 46 years, that he had
     undergone three surgical interventions and that there was no prospect of the injuries improving. Reference was made
     also to medical evidence to the effect that the plaintiff presented during his examination in February 2001 as a person
     who was depressed. It should be noted that depression was not pursued below, or as I understand it, before us, as an
     illness or injury that was consequent upon the accident. But, as counsel pointed out, that the plaintiff was depressed is
     not surprising given that, before the accident, he enjoyed an active life as well as a capacity to be productive,
     something which is now lost to him. Counsel also emphasised that the plaintiff can now only drive the truck
     occasionally, has difficulty in mowing the lawn unless sitting on a ride-on mower and can no longer play golf. Further,
     the plaintiff's evidence was that he continues to experience pain in his shoulder which makes it difficult for him to
     sleep, that he takes Panadeine Forte, that he must now engage riders for fast track work for his horses and that he finds
     it difficult to mount a horse. In all the circumstances, counsel said, the verdict for non-pecuniary loss was one-half of
     what it should have been.

 40. On the other hand, it was said on behalf of the respondents to the cross-appeal, although the award of general damages
     was not generous, neither was it manifestly inadequate. Although the plaintiff could not work physically as he did
     before the accident, it was said, he retained his managerial skills and could not be regarded as a prototype unskilled
     worker who, because of an inability to do physical work due to his injuries, has no marketable work skills. It was
     pointed out that not so long before the accident the plaintiff managed a rubbish collection and cleaning operation that
     employed a considerable number of people and had a turnover of close to $1m. The plaintiff's response to that
     argument was that he operated such a business on a "hands on" basis which required physical work on his part which
     he could no longer perform. Be that as it may, it was said for the respondents, that the plaintiff still maintains
     racehorses which he trains and in the year prior to the trial he had won a gross amount of $50,000 in prize money.
     Moreover, it was said for the Shire, there was evidence that supported the contention that even without the accident in
     February 1997, the plaintiff was at significant risk of injuring his shoulder given the nature of his work.

 41. In my view it was open to the jury to regard the plaintiff as a person who suffered pain and discomfort from his injury
     which he will, to some extent, continue to experience. Furthermore, it was open to them to find that the plaintiff had
     lost his capacity to do physical work that he enjoyed doing and could no longer pursue a number of activities to which
     I have referred. Nevertheless, as it was submitted for the Shire and Norquay, the jury could have properly concluded
     that the plaintiff remains capable of operating a cleaning company and sustains his hobby of training race horses. In all
     the circumstances, I consider that, although the jury's award of general damages is not overly generous, it could not be
     said that it is manifestly inadequate and should be overturned.

      Conclusion

 42. It follows that I am of the view that the appeal and cross-appeal should be dismissed.

      ASHLEY, A.J.A.:

 43. I agree, for the reasons given by Chernov J.A., that the appeal and cross appeal should be dismissed.

                                                                  ---



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     [1] (1986) 160 C.L.R. 16.

     [2] It should be noted that the contract was not tendered in evidence, but that its terms, were described briefly during
     the plaintiff's cross-examination.

     [3] I note for completeness that such a submission was not put to the trial judge.

     [4] At 47.

     [5] At 30-31.

     [6] At 47.

     [7] At 45.

     [8] At 47-48.

     [9] [1967] 1 W.L.R. 356.

     [10] [2002] TASSC 115.

     [11] At [27].

     [12] [2003] NSW CA 132.

     [13] At [88].

     [14] [1999] NSWSC 443.

     [15] At [168].

     [16] (2002) 5 V.R. 169.

     [17] (1985) 59 A.L.J.R. 492 at 494.

     [18] [1963] V.R. 594.

     [19] (1999) 197 C.L.R. 138 at 146.

     [20] I note for completeness that the plaintiff abandoned the claim that he had earlier foreshadowed, namely, his loss of
     cleaning contracts that he had obtained after the accident.

     [21] (1959) 101 C.L.R. 298.

     [22] By Harold Luntz 4th edn.(2002).

     [23] Unreported, 12 May 1983, New South Wales Court of Appeal.

     [24] Unreported, 17 May 1978, New South Wales Court of Appeal.

     [25] See, for example, Rogers v. Nationwide News Pty. Ltd. [2003] HCA 52 at [64] per Hayne, J.




http://www.austlii.edu.au/au/cases/vic/VSCA/2003/162.html                                                           17/03/2004

								
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