Chol v Pickwick Group Pty Ltd
[2023] VCC 66
•6 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL List
Case No. CI-21-02541
| Ayan Chol | Plaintiff |
| v | |
| Pickwick Group Pty Ltd | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2023 | |
DATE OF JUDGMENT: | 6 February 2023 | |
CASE MAY BE CITED AS: | Chol v Pickwick Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 66 | |
REASONS FOR RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Civil trial – negligence and breach of statutory duty – motion by defendant for judgment notwithstanding the jury verdict – reasonably practicable alternative system of work – whether, if implemented, such an alternative system would have avoided injury to plaintiff
Cases Cited:Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288; Bennett v Minister of Community Welfare (1993) 176 CLR 408; Betts v Whittingslowe (1945) CLR 637; Group Services Pty Ltd v Golowka [2022] VSCA 279; Hayward v Georges Limited [1966] VR 202; Herald & Weekly Times Limited v Popovic (2003) 9 VR 1; Hopgood v Wodonga Regional Health Service [2012] VSC 169; King v Amaca Pty Ltd [2011] VSC 422; Maloney v Commissioner for Railways [NSW] (1978) 18 ALR 147; Munday v St Vincent’s Hospital Pty Ltd [2021] VSCA 170; Naxakis v Western General Hospital (1999) 197 CLR 269; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; Tressidar v Austral Stevedoring
and Lighthouse Co Pty Ltd (1968) 1 NSWLR 566; Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Ruling:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson Ms K Karadimas | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Mr S Smith KC Ms J Clark | Wisewould Mahony |
HER HONOUR:
1In this proceeding, the plaintiff, Ms Ayan Chol, claims damages for pain and suffering for the back injury and psychiatric condition including anxiety and depression sustained in the course of her employment with the defendant, Pickwick Group Pty Ltd, between June 2015 and August 2018.
2At the defendant’s request, the proceeding was listed as a jury trial. The trial commenced before me on 5 December 2022 and proceeded over 10 days, with some interruptions. There was evidence led from Ms Chol, Dr Abas Mahmood, general practitioner, and Mr Mark Williams, the defendant’s cleaning supervisor. A number of maps, drawings and photographs were tendered, along with records, clinical notes, reports, and employment documents. In addition, on 9 December 2022, the jury was taken on a view of the areas the plaintiff said she cleaned during her shift.
3On 14 December 2022, I reserved leave to the defendant (without objection from the plaintiff) to move for judgment notwithstanding the jury’s verdict. On 16 December 2022 (day 10 of the trial), the jury determined the following questions asked of them, as follows:
[1]Was there any negligence on the part of the defendant which was a cause of any injury, loss or damage to the plaintiff? --- Yes.
[2]Was there any breach of the Occupational Health & Safety Regulations 2007/2017 by the defendant which was a cause of any injury loss or damage to the plaintiff with respect to:
(a) regulation 3.1.1(1)/26? --- Yes;
(b) regulation 3.1.2(1)/27(1)? --- No;
(c) regulation 3.1.2 (2)/27(2)? --- Yes;
(d) regulation 3.1.2 (3)/27(3)? --- Yes.
[3] If yes to questions 1 and/or questions 2 (a) – (d), in what amount do you assess the plaintiff’s pain and suffering damages? ---$125,000.00.
4Following the jury’s verdict, the defendant moved for judgment notwithstanding the jury’s verdict. The plaintiff opposed the defendant’s motion. The plaintiff filed and exchanged written submissions. On 18 January 2023, I heard argument from both parties and reserved my decision. After the hearing, I requested and received further written submissions from the parties.
5No issue was taken by counsel with the charge delivered to the jury. The charge was provided in writing to counsel and settled with them prior to being delivered. The charge included the standard directions on evidence, and inferences.
6The legal principles governing this application are not in issue.[1] In King v Amaca Pty Ltd[2], Kyrou J summarised these principles as follows:[3]
In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.
A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.
A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.
[1] See Hopgood v Wodonga Regional Health Service [2012] VSC 169 (‘Hopgood’); Phillips v Ellinson
Brothers Pty Ltd (1941) 65 CLR 221; Hayward v Georges Limited [1966] VR 202; Naxakis v Western General Hospital (1999) 197 CLR 269; Herald & Weekly Times Limited v Popovic (2003) 9 VR 1.
[2] [2011] VSC 422 (‘Amaca’), upheld on appeal in Amaca Pty Ltd v King [2011] VSCA 447.
[3] Ibid [7]–[10].
7In relation to proof of a reasonably practicable alternative, in some cases, common knowledge or common sense is all that is required to enable a judge or jury to perceive the existence of a real risk of injury and to permit the tribunal of fact to say what reasonable and appropriate precautions might appropriately be taken to avoid it.[4]
[4] See Maloney v Commissioner for Railways [NSW] (1978) 18 ALR 147; Tressidar v Austral Stevedoring
and Lighthouse Co Pty Ltd (1968) 1 NSWLR 566, 568.
Defendant’s submissions
8The defendant’s submissions may be summarised briefly as follows.
Negligence
9The plaintiff’s case at trial did not incorporate any complaint as to the equipment used by the plaintiff, the techniques the plaintiff was required to utilise in attending to various cleaning duties, nor the training provided to the plaintiff. Rather, her case was simply that she was exposed to an excessive workload, thereby leading to injury. However, there was no evidence adduced at trial as to (a) a reasonably practicable alternative system of work which should have been implemented by the defendant; and (b) consequently, (or independently) no evidence that adoption of that alternative system of work would have prevented or reduced the risk of the plaintiff suffering injury. On the authorities,[5] the jury’s verdict cannot stand.
[5] Munday v St Vincent’s Hospital Pty Ltd [2021] VSCA 170 (‘Munday’), [22]-[23]; Hopgood [2012] VSCA
326; Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288 [24], [28]-[29], [32] (‘Bauer’); Group Services Pty Ltd v Golowka [2022] VSCA 279 [68]-[69] (‘Golowka’).
10Secondly, even if this case is one in which a jury could assess evidence without expert testimony, relying upon their own common knowledge and experiences, the jury needed to have evidence, that is, facts to which they could apply their experience, common sense and common knowledge and on which they could find the defendant liable in negligence.[6] In Vozza, the kind of evidence which might have been adduced would have been a different form of glove, which would have been practically usable, and which would have prevented the injury that this plaintiff suffered. In Bauer, reliance on a “common sense” suggestion of job rotation was insufficient in the absence of evidence as to what such a system would entail.
[6] Vozza v Tooth & Co Ltd (1964) 112 CLR 316 [6] (‘Vozza’).
11Thirdly, even if the Court finds there was evidence of a reasonably practicable alternative to the system of work, there was no evidence capable of satisfying a jury that, had such a system been implemented, the plaintiff would have avoided injury.[7] In Golowka, the Court considered that expert scientific and/or medical expertise was needed to support the proposition that a lighter loaded trolley would have produced a different outcome for Ms Golowka, and that this issue could not be resolved by common sense, as this would involve speculation and guesswork.[8]
[7] See Golowka.
[8] Ibid [169]-[172].
12In this regard, Dr Mahmood’s evidence militated against the finding of a causal connection between an alternate system of work and the plaintiff’s injury. His evidence was to the effect that once a patient doing hard physical work like cleaning suffers a back or disc injury with discogenic pain and nerve impingement, they become vulnerable to further injury, and he advises them to change to light duties or to a different occupation.[9] He said that when he saw the plaintiff on 27 April 2013, she complained of back pain from lots of housework and her cleaning duties. He felt that Ms Chol should have changed to light duties or a different occupation.[10]
The claim for breach of the Manual Handling Regulations
[9] Transcript of Proceedings, Chol v Pickwick Group Pty Ltd (County Court of Victoria, CI-21-02541, Judge
Davis, 5 December 2022 – 16 December 2022) (‘T’) 273.5-16.
[10] T296.1-14.
13While it was open to the jury to find that the defendant had failed to identify a hazard to the plaintiff in breach of Regulation 3.1.1, given the lack of evidence of a reasonably practical alternative system of work, and the lack of evidence that such system would have removed or lessened the risk of injury to the plaintiff, it was not open to the jury to find a breach of Regulations 3.1.2(2) and 3.1.2(3) by the defendant, for the same reasons as outlined above in relation to negligence.
14Secondly, the jury’s verdict demonstrated confusion of the jury on this point, in finding the defendant had complied with Regulation 3.1.2(1), in eliminating a risk of injury as far as was reasonably practical, while finding that the defendant had failed to reduce such risk to the extent that was reasonably practicable in breach of 3.1.2(2);and that it failed to provide training or instruction in that risk (which it had eliminated) in breach of 3.1.2(3).
Plaintiff’s submissions
The claim for breach of the Manual Handling Regulations
15The jury determined liability on four out of five questions inclusive of finding that such liability was “a cause” of injury, loss and damage to the plaintiff. The ‘no’ answer to question [2](b) is explicable on the grounds that it was not “reasonably practicable” for the defendant to “eliminate any risk of musculoskeletal disorder associated with hazardous manual handling” by the plaintiff whilst performing her cleaning duties and, consequently, no contravention of regulation 3.1.2(1)/27(1) had occurred. It was well open to the jury to conclude on the evidence adduced from the plaintiff that an unsafe system of work was maintained by the defendant in contravention of applicable manual handling regulations (save for regulation 3.1.2(1)/27(1)) throughout the course of the plaintiff’s employment from on or about 2 June 2015 to 31 August 2018 that was a cause of the plaintiff’s injury.
Negligence
16There was more than sufficient evidence, if not compelling evidence that was largely unchallenged, which a reasonable jury, properly directed as it was, could return the above verdict in all the circumstances of this case.
17For example, there was evidence from the plaintiff of:
(a) the excessively quick and high volume of cleaning duties required to be performed within a four-hour shift (inter alia) as follows:[11]
[11] T255.18-26, T325.8-15.
I fit them with running, … that’s why I rush, running, running, make sure I get it in four, because first time I started, I used to go over and they told me, ‘This is a four-hour shift, you make sure to do your timing to finish four house, not more than that’. That’s why I start running, running, doing the measure, watching my time, what time, its 5 o’clock. I need to do this, and make sure I finish on time
…
I fit them because I told you, I needed the job and they told me, ‘This is the four hours, you have to do it on the four hours’ and I have to rush, rush and do it. If you believe me or not, that’s what I have done. If it was seven hours or six hours, they just give me the time, four hours and I have to do it. When I was doing it, I rush myself just to finish the four hours …
(b) the proper context in which she was required to perform such cleaning duties (inter alia) as follows:
(i)by the use of heavy, repetitive and awkward postures required to perform cleaning duties undertaken without adequate training, instruction, supervision or assistance and, in the absence of any risk assessment having been undertaken by the defendant;
(ii)evidence of excessive workload, pace of work and pressure of time which the defendant to complete such duties inclusive of rubbish collection; vacuuming; wiping; use of bucket and mop; pushing trolleys and cleaning 27 toilets;[12]
(iii)complaints she made to Mr Williams, Grosda Filipov and Nadir Badur of back pain from such work duties which the defendant failed to heed;[13]
(iv)particular injury related events of 12, 13 and 14 June 2017 and, the unsatisfactory responses of Nadir Badur and Mark Williams thereto.[14]
[12] T54.12-24, 104.15-21. 255.16-29, 325.4-30.
[13] T78.5-9, 103.4, 112.6-16, 116.16-28, 172.28-31, 173.1-11.
[14] T114-117.
18In addition, the jury was entitled to accept the unchallenged medical evidence of Dr Ales Allashkevich, neurosurgeon and spine surgeon, to the effect that:[15]
on the balance of probability, I consider her employment from June 2015 until August 2018 as a likely material contributing factor to the exacerbation of a pre-existing degenerative lumbosacral spine condition to a degree greater than minimal.
[15] PCB 119.
19Likewise, the jury was also entitled to accept the unchallenged psychiatric diagnosis of Dr David Weissman, consultant psychiatrist, that the plaintiff:[16]
is suffering from a chronic adjustment disorder with depressed and anxious mood of moderate intensity relevant to her employment.
[16] PCB 84.
20Therefore, it was well open to the jury to conclude on the evidence adduced from the plaintiff that the ‘system of work’ was unsafe and ‘a cause’ of the plaintiff’s injury, loss and damage essentially because of the excessively quick and high volume of cleaning duties required to be performed by her under time pressure within a four-hour shift (3:00am – 7:00am) five days per week.
21In this regard, the jury were entitled, in this case, as the Court of Appeal held in Hopgood, to conclude that the evidence adduced by the plaintiff accorded with common sense and experience; the common sense idea of one matter being the cause of another.[17] That is, the liability findings of the jury are consistent with “the common sense idea of one matter (i.e. the defendant’s established breach of duty and regulation) being the cause of another (i.e. the plaintiff’s injury, loss and damage assessed at $125,000 for pain and suffering damages).
[17] (2010) 240 CLR 537, 579 [112].
22The liability findings are also consistent with orthodox principles of causation relating to breach of statutory duty where:[18]
the breach of duty is couple with an accident of the kind that might thereby be caused (as being) enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.
[18] Bennett v Minister of Community Welfare (1993) 176 CLR 408 [13] per Gaudron J citing Betts v
Whittingslowe (1945) CLR 637, 649 per Dixon J.
23Secondly, there was no material opposition to the charge made on behalf of the defendant to challenge the veracity of any matters of fact and/or law raised therein.
24Thirdly, certain features of the defendant’s conduct of the trial materially undermine the merits of its application and/or bolster the strength of the plaintiff’s opposition to the application.
25For example, the defendant itself ran a case at trial in reliance upon the existence of a reasonably practicable alternative system of work based upon the allocation of cleaners rostered to the respective levels of buildings C and D referred to at items 6 and 7 of the plaintiff’s transcript references.
26The defendant cross-examined the plaintiff into accepting that such a reasonably practicable alternative system of work was based upon its allocation of cleaners throughout levels 1 – 4 of Building C and levels 1 – 4 of Building D referred to at items 8 and 9 of the plaintiff’s transcript references.
27Further, the plaintiff accepted under cross-examination each of the following matters giving rise to evidence relating to the defendant’s alternative system of work for other cleaners rostered on the 3:00am – 7:00am shift (save and except for herself), namely:
(a) “if she only had to do level 2 (Building C) for her shift, that’s all (she) had to clean, that would be pretty straightforward” and she “wouldn’t make any complaints about that”;[19]
(b) “if she only had to do level 3 (Building C) for her shift, that’s all (she) had to clean, that would be pretty straightforward” and she “wouldn’t make any complaints about that”;[20]
(c) if all she had to clean was level 2 (Building D) “that would be pretty simple and (she) wouldn’t make any complaints about that”;[21] and
(d) if she only worked on level 4 (Building D), it would be “a relatively straightforward and simple thing” with no complaints over a four-hour shift.[22]
[19] Plaintiff Transcript References dated 22 January 2023 (‘PTR’); T330.13-15.
[20] PTR 8(c); T203.22-25.
[21] PTR 9(b); T203.19-21.
[22] PTR 9(d); T202.15-27.
28Another example is that the evidence led from Mr Williams in support of such an alternative system of work for other cleaners rostered on the 3:00am – 7:00am shift (save and except for the plaintiff) as follows:
(a) when asked why the task of cleaning Building C was “divvied up in that fashion?”, the witness responded that “we always tried to make it equitable and depending on the size and types of rooms and things, that was how it all panned out”;[23]
(b) when asked why cleaning work on level 3 of Building C was “divided up in that fashion?”, the witness responded “[t]hat’s just to provide an equitable workload for everyone”;[24]
(c) when asked why cleaning work on level 4 of Building C was “divided up in that fashion?”, the witness responded “[j]ust to be equitable”;[25] and
(d) when asked about the reason for allocating cleaning areas to persons for one part of a level in Building D, the witness responded that “the actual areas were allocated as per what the training the cleaner had had”.[26]
[23] PTR 12; T410.24-29.
[24] PTR 13; T413.4-7.
[25] PTR 14; T413.26-27.
[26] PTR 15; T.413.28–414.10.
29For these reasons, it was reasonably open to the jury to infer and, thereby, conclude that had the defendant allocated the above alternative system of work to the plaintiff compared against the actual system of work by which she cleaned buildings C and D (evidenced at items 1 and 2 of the plaintiff transcript references), then any such “equitable allocation” of cleaning works undertaken by her would have reduced the risk of injury, or that any such system would have prevented the plaintiff’s injury.
30Other features of the defendant’s conduct of the case which undermine the strength of its application included:
(a) the extent of adverse inferences which the jury was entitled to draw from the defendant’s unexplained failure to call a multitude of witnesses, inclusive of:
(i)the defendant’s current cleaners, Peter Kanellos, Paul Treblecock, and Peter Knell;
(ii)the defendant’s former employee cleaner, Grosda Filipov;
(iii)the defendant’s former supervisor of cleaners for buildings C and D, Nabil Badur; and
(iv)the defendant’s current health and safety representative, Dean Munro.
(b) the plaintiff’s lengthy cross examination by reference to pretended ‘calculus’ of cleaning tasks with corresponding estimated times to complete to establish, for instance, that a total of six and a half to eight and a half hours cleaning work will not fit into a four hour shift.[27]
(c) Calling Mr Williams, who admitted (inter alia) that: (i) there was no documented system for telling whether a cleaner was working on what particular level of the Waterfront Campus in June 2017;[28] (ii) he had not made any inquiries to try and find Nabil Badur who would have reported worker complaints to him;[29] (iii) the defendant did not properly monitor the safety of its cleaning staff inclusive of the plaintiff;[30] and (iv) the defendant did not retain quality inspection records for cleaning of toilets at the Waterfront Campus.[31]
(d) the absence of any express puttage to the effect that the plaintiff was untruthful, lacking in credit or believability, a malingerer or otherwise should not be believed on the central theme of her evidence inclusive of excessive workload, pace of work, and pressure of time in performing cleaning tasks;
(e) the defendant’s failure to adduce any affirmative evidence in support of the purported safety of its system of work and/or risk management assessment for the cleaning undertaken by the plaintiff in buildings C and D of the Waterfront Campus; and
(f) the defendant’s failure to adduce any expert medical or other evidence to challenge the plaintiff’s case that its breach of duty and/or regulation was “a cause” of her injury, loss or damage.
[27] T. 255.7-18, 248-254.
[28] T. 422.3-6, T429.22-29.
[29] T424.5-8.
[30] T443.17-31, 444.1.
[31] T448-9.
31Fourthly, the defendant’s reliance on fact-specific cases is of little assistance. Save for Vozza, none of the cases relied upon involved jury verdicts let alone involved a factual matrix similar to that of the present case. In addition, each of Munday, Bauer, Vozza, and Golowka involved the use of technical equipment designed for a specific purpose in respect of which complaints were made on behalf of a plaintiff as having caused or contributed to the alleged injuries sustained (which the defendant accepted was not the case here); and in those cases it was not open to rely upon the application of common sense or common knowledge to prove the case on causation. In this case, however, the circumstances involved the plaintiff’s excessively quick and high-volume cleaning duties.
32Despite reliance placed on Dr Mahmood’s evidence by the defendant, the plaintiff’s evidence in this case entitled the jury as a matter of common sense and common knowledge to determine questions of liability against the defendant including that its established breach of duty and regulation was “a cause” of her injury, loss and damage.
Reasons
33The trial transcript runs for some 600 pages. As outlined above, the jury heard viva voce evidence from the plaintiff, from Mr Williams, and Dr Mahmood. A number of exhibits were tendered, including the reports of medical experts, clinical records, defendant’s answers to interrogatories, a side-by-side version of the 2007 and 2017 Regulations, maps of the campus and a series of campus photos. The jury was taken on a view of the areas of the defendant’s premises where she said, without challenge, that she conducted her cleaning duties, and what they involved.
34According to the directions given to it, the jury was entitled to accept or reject all or part of any witness’s evidence, and to draw inferences from the facts as they determined them.
35Taking the plaintiff’s case at its highest, and in accordance with the principles in Amaca, for the following reasons I am not satisfied that the defendant has established that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff on the questions of negligence and breach of the Manual Handling Regulations.
36Firstly, I consider that there is no necessary inconsistency in the verdicts given in answers to questions concerning breach of the Manual Handling Regulations. It was perfectly reasonable for the jury to consider that while it was not reasonably practicable for the defendant to eliminate any risk of musculoskeletal disorder associated with hazardous manual handling, the defendant maintained an unsafe system of work in contravention of the other impugned manual handling regulations.
37Secondly, without descending into the detail of the evidence given in the trial, or speculating about the decision-making process of the jury, I am satisfied, taking the whole of the evidence into account, and assisted by some examples provided by the plaintiff (as outlined above at paragraphs 15-32), that there was evidence upon which a jury, properly directed, could have concluded, or inferred, as a matter of common sense that there was a reasonably practicable alternative to the system of work and that, had such a system been implemented, the plaintiff would have avoided injury. In other words, it was open to the jury to conclude from the evidence that the defendant could have given the plaintiff more time to complete her work, or less work to do in her shift, and that, had this been done, the volume and/or pace of the plaintiff’s cleaning work would have been lessened and this would have prevented her injuries.
38Finally, I have taken into account that the power to give judgment in disregard of jury’s verdict should only be exercised in the clearest of cases,[32] and I do not consider this case to reach that threshold.
[32] Amaca [10].
Conclusion
39The defendant’s application is dismissed. I propose to make orders entering judgment for the plaintiff in accordance with the jury’s verdict as proposed by counsel, along with other costs orders.
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