Anic v Qenos - [2013] VSC 741

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5968 of 2013

ANIC	Plaintiff
v
QENOS	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2013
DATE OF JUDGMENT:	17 December 2013
CASE MAY BE CITED AS:	Anic v Qenos
MEDIUM NEUTRAL CITATION:	[2013] VSC 741

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SUPREME COURT RULES -

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T. Monti SC	Nevin, Lenne & Gross
For the Defendant	Richard Stanley	Wisewould Mahony Lawyers

HIS HONOUR:

This matter was listed for hearing in the December 2013 Wodonga circuit. Time constraints meant that it was not reached in that circuit. I considered it eminently suitable for judicial mediation, and I accordingly referred it for same. The matter has settled but for two aspects of what would otherwise be consent orders as to costs.

Fees for senior and junior counsel remain in dispute both for the mediation and for an interlocutory hearing that took place not long before that mediation.

Mediation

Mr Stanley, who appeared for the defendant at the mediation, argued that:

(a)the fees were incurred at a mediation;
(b)the court is no better position than the Costs Court to assess this aspect of the costs order;
(c)if this court made an order for costs after a successful settlement at mediation this Court would be acting as a quasi Costs Court itself given that the matter was not reached in the recent Wodonga sittings of this Court;
(d)alternatively, if this court were to consider the question of counsel’s fees it should do so by reference to Appendix A to Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 – Scale of Costs. Having used this scale to fix upon an amount for senior and junior counsel’s fees Mr Stanley then contended that that amount ought be reduced by 20% as provided for by s134AB(29) of the Accident Compensation Act 1985.

Mr Monti S.C. contended that this court, having exercised judicial control over the matter, including referring it for judicial mediation, is better placed than the Costs Court to determine the issue of counsel’s fees. He further submitted that the delays associated with a Costs Court determination was a factor that also militated against referring it. He submitted that it was inappropriate to have regard to the Scale of Costs in the way proposed by Mr Stanley and he submitted that if his full fee were allowed s 134AB(29) would not apply.

I am of the view that it is appropriate for this court to determine this issue. This was a reasonably complex case involving injuries said to be the result of repetitive heavy duties over several years, although more particularly over the six months between October 2005 and March 2006. A consulting engineer prepared a comprehensive report and was to give evidence (subject to admissibility arguments) concerning the plaintiff’s individual duties and the repetitive forces, postures and movements his duties required of him. The plaintiff alleged negligence and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anic v Qenos

Details

AGLC: Anic v Qenos [2013] VSC 741
Case: [2013] VSC 741
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case of Anic v Qenos involved the plaintiffs, Anic and his wife, who sought damages for injuries sustained by the husband when exposed to chemicals at his workplace. The defendants, Qenos, were responsible for the chemical plant where the injuries occurred. The dispute centred on whether Qenos was negligent in failing to warn of the potential hazards associated with the chemicals, leading to the injuries. The matter was heard in the Supreme Court of Victoria.

The court was required to determine several legal issues, including whether Qenos had a duty of care to the plaintiffs, whether this duty was breached, and if the breach directly caused the injuries. Furthermore, the court needed to consider the relevance of statutory regulations and whether compliance with these regulations could negate a finding of negligence.

In its judgment, the court held that Qenos did owe a duty of care to the plaintiffs, which was breached by failing to adequately warn of the hazards associated with the chemicals. The court found that the breach directly caused the injuries to the husband. The court also found that compliance with statutory regulations did not absolve Qenos of liability for negligence. The court awarded damages to the plaintiffs, acknowledging the significant impact of the injuries on their lives.

Orders