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Bulent Aycicek v Flowline Industries Pty Ltd

Bulent Aycicek v Flowline Industries Pty Ltd

Case [2019] VSCA 37 6 March 2019

Negligence

Contributory Negligence

Duty of Care

Reasonable Care

Common Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0066

BULENT AYCICEK	Applicant
v
FLOWLINE INDUSTRIES PTY LTD	Respondent

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JUDGES:	BEACH, KYROU and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2019
DATE OF JUDGMENT:	6 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 37
JUDGMENT APPEALED FROM:	[2018] VCC 477 (Judge Brookes)

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NEGLIGENCE – Employer – Contributory negligence – System of work – Evidence of system of work – Whether worker failed to comply with system of work – Whether worker failed to comply with employer’s direction – Whether worker failed to take reasonable care for own safety – Whether jury finding of contributory negligence open – View of evidence most favourable to respondent employer, consistent with jury verdict – Jury finding of contributory negligence not open – Jury finding of contributory negligence set aside.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr M J Hooper	Zaparas Lawyers Pty Ltd
For the Respondent	Mr S A O’Meara QC with Mr S E Gladman	Wisewould Mahony Lawyers

BEACH JA

KYROU JA
EMERTON JA:

Between April 2002 and September 2012, the applicant was employed by the respondent as an assembly worker.

In March 2017, the applicant commenced a proceeding in the County Court against the respondent, claiming damages in respect of spinal injuries he alleged he suffered in the course of his employment between 2005 and 2012. The applicant alleged that he suffered injury in specific incidents that occurred on 23 August 2005, 13 May 2008 and 12 September 2011.

On 23 March 2018, after a trial lasting some eleven days, the jury found that the applicant had suffered injury, loss and damage by reason of the respondent’s negligence and breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (‘the Regulations’), and they assessed his damages in the total sum of $585,000. The jury further found that there was contributory negligence on the part of the applicant and that it was just and equitable to reduce his damages by 38 per cent to account for his share in the responsibility for the damage.

Subsequently, on 18 April 2018, the trial judge entered judgment for the applicant in the sum of $336,770. That sum was calculated based on the jury’s verdict, an agreed Fox v Wood[1] component, an agreed amount for interest, and the reductions required to be made by ss 134AB(25) and (26) of the Accident Compensation Act 1985.
[1](1981) 148 CLR 438.

The applicant now seeks leave to appeal against the judgment to the extent that it is based on the jury’s findings of contributory negligence. He relies on two proposed grounds: the first ground asserts that it was not open to the jury to find contributory negligence; and the second ground asserts, in the alternative, that it was not open to the jury to find that his damages should be reduced by 38 per cent.

It was common ground before us that the…

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 Bulent Aycicek v Flowline Industries Pty Ltd

Details

AGLC: Bulent Aycicek v Flowline Industries Pty Ltd [2019] VSCA 37
Case: [2019] VSCA 37
Decision Date: 6 March 2019

CaseChat Overview and Summary

In the case of Bulent Aycicek v Flowline Industries Pty Ltd, the dispute centred on the plaintiff's claim for damages arising from an incident at work. The plaintiff alleged that the employer was negligent in the system of work implemented and in failing to provide appropriate safety measures. The employer, in turn, sought to rely on the defence of contributory negligence, arguing that the plaintiff had not followed the employer's safety instructions and failed to take reasonable care for his own safety. The case was heard and determined by the Supreme Court of New South Wales.

The primary legal issues before the court involved whether the employer had breached its duty of care and whether the plaintiff's contributory negligence was a factor in the incident. The court was required to assess whether the plaintiff had failed to comply with the employer's system of work or directions, and if the plaintiff had breached their own duty of care. Additionally, the court had to determine if the jury's finding of contributory negligence was open based on the evidence presented.

The court's reasoning was grounded in an analysis of the evidence presented in the most favourable light for the employer, consistent with the jury's verdict. The court found that the evidence did not support a finding that the plaintiff had failed to comply with the employer's system of work or directions, nor did it show that the plaintiff had failed to take reasonable care for their own safety. The court concluded that the jury's finding of contributory negligence was not open on the evidence and set aside the finding of contributory negligence. The court held that the employer's system of work was inadequate and that the employer was liable for the plaintiff's injuries.

In light of the findings, the court ordered that the employer pay the plaintiff damages for the injuries sustained. The court also set aside the jury's finding of contributory negligence and ordered that the employer bear the full liability for the incident. This decision underscores the importance of employers ensuring that their systems of work and safety measures are adequate and that employees are properly instructed and supported in their duties.

Orders