Deal v Kodakkathanath - [2015] VSCA 191

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0115

KATHRYN DEAL

FATHER PIUS KODAKKATHANATH

---

JUDGES:	WARREN CJ, ASHLEY JA and DIGBY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2015
DATE OF JUDGMENT:	24 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 191
JUDGMENT APPEALED FROM:	County Court (Judge McInerney) 2 September 2014

---

ACCIDENT COMPENSATION – Workplace injury - Appeal – Statutory duty – Ruling by trial judge that cause of action for breach of statutory duty be withdrawn from jury’s consideration – Whether ruling premature – Whether judge applied incorrect test in ruling that cause of action be withdrawn from jury’s consideration – Whether manual handling provisions of Occupational Health and Safety Regulations 2007 engaged in circumstances of case.
ACCIDENT COMPENSATION – Workplace injury – Appeal – Whether jury verdict in favour of defendant perverse or not open on evidence – Appeal dismissed.

Occupational Health and Safety Act 2004, sections 2, 4 and 20.

Occupational Health and Safety Regulations 2007, regulations 1.1.1, 1.1.5, 3.1.1, 3.1.2, 3.1.3.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Ingram with Ms K Popova	Melbourne Injury Lawyers
For the Respondent	MR J P Gorton QC with Ms M Norton	Minter Ellison

WARREN CJ
ASHLEY JA:

The appellant, Kathryn Deal, was the unsuccessful plaintiff in a proceeding in the County Court in which she claimed pain and suffering damages against her employer for injury to her right knee suffered on 19 September 2007 in the course of her employment as a primary school teacher at St Peter Apostle Primary School, Hoppers Crossing. Her claim was heard by a judge and jury over a seven day period in August and September 2014. Her case was left to the jury as one in which she claimed that she had suffered injury by reason of breach by her employer of the non-delegable duty of care which it owed her. It was that claim which, by its verdict – delivered less than an hour after beginning its deliberations - the jury rejected.

The appeal

By this appeal, the appellant complains that the jury’s verdict was perverse and not open on the evidence. She complains also that the judge should not have left contributory negligence to the jury — a complaint which could only be relevant if the jury’s adverse verdict was successfully impugned and if it was determined that the employer was in fact in breach of the common law duty which it owed her.

Of prime importance to the appeal, however, are grounds which contend that the judge wrongly ruled that a cause of action for breach of statutory duty which the appellant advanced was unavailable. That claim was pleaded as follows:

Further and in the alternative, the plaintiff’s injuries were caused by reason of the breach by the defendant of its duties under the Occupational Health and Safety Regulations 2007.
PARTICULARS OF BREACH
Without limiting the generality of the foregoing allegations the plaintiff relies further upon breach by…

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 Deal v Kodakkathanath

Details

AGLC: Deal v Kodakkathanath [2015] VSCA 191
Case: [2015] VSCA 191
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the case of Deal v Kodakkathanath, the dispute was brought before the court by the appellant, Deal, who sought compensation for injuries sustained during his employment. The respondent, Kodakkathanath, was the employer. The Court of Appeal in Victoria heard the appeal, which centred around the validity of the employer's defence to the appellant's claim for breach of statutory duty under the Occupational Health and Safety Act 2004. The appellant argued that the trial judge's decision to withdraw the cause of action for breach of statutory duty from the jury's consideration was premature and based on an incorrect legal test. Furthermore, the appellant contested whether the manual handling provisions of the Occupational Health and Safety Regulations 2007 were applicable in the circumstances of the case.

The court was required to determine if the trial judge erred in ruling that the cause of action for breach of statutory duty should be withdrawn from the jury's consideration. The court also had to consider whether the judge applied the correct legal test in making that ruling and if the manual handling provisions of the Occupational Health and Safety Regulations 2007 were engaged in the circumstances of the case. Additionally, the court examined whether the jury's verdict in favour of the respondent was perverse or not open on the evidence presented.

The Court of Appeal found that the trial judge's ruling was not premature and that the judge applied the correct legal test in withdrawing the cause of action for breach of statutory duty from the jury's consideration. The court held that the manual handling provisions of the Occupational Health and Safety Regulations 2007 were not engaged in the circumstances of the case. The Court of Appeal also found that the jury's verdict in favour of the respondent was not perverse or not open on the evidence presented. As a result, the appeal was dismissed.

Orders