De Bever v M B Marlow Engineering Pty Ltd (Ruling No 3)
[2013] VCC 1925
•6 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-00366
| ADRIAN DE BEVER | Plaintiff |
| v | |
| M B MARLOW ENGINEERING PTY LTD | First Defendant |
| and | |
| MACKIE PTY LIMITED | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 13, 14, 18, 19, 20, 21, 22, 25, 26 and 27 November 2013, 3 and 4 December 2013 | |
DATE OF RULING: | 6 December 2013 | |
CASE MAY BE CITED AS: | De Bever v M B Marlow Engineering Pty Ltd & Anor (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1925 | |
RULING
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Subject:DISCHARGE OF THE JURY
Catchwords: Discharge of the jury at the closure of evidence – lengthy submissions as to the nature and extent of any duty of care owed by the second defendant to the plaintiff – the extent of any duty owed by a principal contractor to an employee of a sub-contractor engaged by the principal contractor – whether the evidence as a matter of law could give rise to two duties of care on the part of the second defendant, one resulting from “occupation” and the other resulting from the facts establishing a “general duty of care”
Legislation Cited: Rule 47.02 of the County Court County Court Civil Procedure Rules 2008; Evidence Act 2008
Cases Cited:Dunning v Altmann (1991) 2 VR 667; Pezzimenti v Seamer [1995] 2 VR 3; Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 8) [2012] VSC 318; Nugent v Techni Waterjet Pty Ltd & Anor [2012] VSC 465; Belbin v Lower Murray Urban & Rural Water Corp & Ors (Ruling No 1) [2012] VSC 359; Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16
Ruling:Jury discharged without verdict.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A N Murdoch SC with Ms A L Wood | Shine Lawyers |
| For the First Defendant | Mr P D Elliott QC with Mr N K Clarke | Wisewould Mahony |
| For the Second Defendant | Ms N Tsikaris | Wotton Kearney |
HIS HONOUR:
Preliminary
1 At approximately midday on 28 November 2013, I discharged the jury without verdict after eleven days of evidence which was completed at approximately midday on 27 November 2013. At the completion of the viva voce evidence, various legal issues were raised by the parties in the absence of the jury, including:
(a) The admissibility or otherwise of a statement of Minh Vu sought to be admitted pursuant to s63 of the Evidence Act 2008 (“the Act”);[1]
(b) Whether certain particulars of contributory negligence should go to the jury.
[1]See ruling dated 6 December 2013 – [2013] VCC 1924
2 Late on 27 November 2013, counsel for the second defendant made application that in the event that there was a jury verdict against her client in relation to negligence, leave be reserved for the second defendant to submit that there was no evidence to go to a jury. Such application was granted.
3 Senior Counsel for the plaintiff responded that it was his intention to address the jury that on the evidence before the jury, the duty of care owed by the second defendant to the plaintiff went beyond that arising from mere occupation and extended to exercise reasonable care “in and around the system of work which was being used by … [the first defendant] … and by … [the plaintiff] … at the time”.[2]
[2]See Transcript (“T”) 1049, L22-25
4 Argument ensued for the balance of 27 November 2013 and until about lunchtime on 28 November 2013, at which time I discharged the jury (who had been sitting in the jury room for about a day at this time). Given that all parties wished to make further submissions in relation to what clearly became a very important aspect of the matter – the nature and the extent of any duty of the second defendant in relation to the plaintiff.
5 On 2 December 2013, further argument ensued with Junior Counsel for the second defendant now being led by Mr R J Middleton, Senior Counsel, to argue this particular point. Argument ensued for the balance of that day and trickled over into the following day.
6 As I have stated, the jury was discharged about midday on 28 November 2013 and, I gave the jury some detail as to why it was being discharged at that time and the matter would proceed as a cause.[3]
[3]See T113 – T119
7 I have been requested to give a formal ruling as to that course.
The proceeding
8 Adrian De Bever, who I shall refer to as “the plaintiff” was at all relevant times employed by M B Marlow Engineering Pty Ltd, which I shall refer to as “the first defendant”, in the capacity as a boilermaker. The first defendant was engaged by Mackie Pty Ltd, which I shall refer to as “the second defendant” to perform steel fabrication work at premises situated at 94 Market Street, South Melbourne (“the premises”).
9 The plaintiff alleges that on or about 12 March 2008, during the course of his employment at the premises, he stood on a window sill which collapsed, causing him to fall into the void below and suffer injury and in particular, a neck injury.
10 The plaintiff alleges against the first defendant that his injuries were caused by its negligence and/or a breach of Part 3.3 of the Occupational Health and Safety Regulations 2007, in that it failed to identify the task required of the plaintiff which involved a “fall hazard” and failed to control the risk of the plaintiff falling by means set out in the Regulations.
11 The plaintiff further alleges that the second defendant was an occupier of the premises and breached a common law duty of care that it owed to the plaintiff to take such care as in all the circumstances as was reasonable to see that the plaintiff, whilst at the premises, was not injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
12 The plaintiff also alleges against the first and/or second defendant a general duty of care, a breach of which was a cause of injuries suffered by the plaintiff.
13 The defendants deny any liability whatsoever and furthermore, if so liable, allege contributory negligence on the part of the plaintiff. Both defendants raised the issue of the credibility of the plaintiff.
Relevant legal principles
14 Rule 47.02 of the County Court County Court Civil Procedure Rules 2008 states, in part:
“(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if—
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Registrar within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
(b) the proper jury fees are paid.
(2) …
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.”
15 The considerations which may influence a court to dispense without a jury trial are unfettered. The discretion may be exercised where it is warranted by the dictates of justice.[4] A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.[5]
[4]See Dunning v Altmann (1991) 2 VR 667
[5]See Pezzimenti v Seamer [1995] 2 VR 32 at pages 38-40
16 In the exercise of the unfettered discretion to discharge a jury without verdict, it is relevant to consider at what stage of the trial discharge is to take place, and further, juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.[6]
[6]See generally Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 8) [2012] VSC 318; Nugent v Techni Waterjet Pty Ltd & Anor [2012] VSC 465; Belbin v Lower Murray Urban & Rural Water Corporation & Ors (Ruling No 1) [2012] VSC 359; Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16
Conclusion
17 Although the discharge occurred very late in the trial, I consider that the interests of justice required that there be an appropriate period of time for full argument to ensue as to the nature and extent of the second defendant’s duty of care in relation to the plaintiff. Such an issue had to be resolved before addresses could take place before a jury and obviously before any charge could be made to the jury. The resolution of such issue was not only relevant to any potential liability the second defendant may have to the plaintiff but also to the contribution proceedings between defendants.
18 The issue loomed large and indeed as events revealed, arguments ensued for nearly three days with a very marked dividing line between the position of the second defendant and that of the plaintiff, who was joined by the first defendant on this issue.
19 I was also conscious that depending on the nature of the ultimate ruling given, there was a prospect that there may have been further questions that a jury may well have been required to address pertaining to what was described in argument as “the second duty of care” relevant to the second defendant. Any such further questions would have added to the complexity of the issues to be determined by the jury.
20 All in all, I came to the view, with some reluctance, that the better course was to ensure that the parties had ample time to make appropriate submissions both in written form and orally to support their respective positions. Of course, such a procedure adds time to the trial and after appropriate submissions, a ruling would have to be made as to how the jury could be addressed in relation to any duty of the second defendant in relation to the plaintiff. Furthermore, I did not want to get to a position where there was a prospect after a particular ruling, that the jury would be confronted with further questions, adding significant complexity to the jury’s determination.
21 In such circumstances, I discharged the jury without verdict and continued the matter as a cause.
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