Deal v Kodakkathanath [No 2]
[2017] VSCA 193
•25 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0115
KATHRYN DEAL Applicant v FATHER PIUS KODAKKATHANATH Respondent ---
JUDGES: WARREN CJ, ASHLEY JA and DIGBY AJA WHERE HELD: MELBOURNE DATE OF HEARING: On the papers DATE OF JUDGMENT: 25 July 2017 1st Revision: 25 July 2017, paragraph [27(1)] MEDIUM NEUTRAL CITATION: [2017] VSCA 193 JUDGMENT APPEALED FROM: Unreported, County Court of Victoria, Judge McInerney, 2 September 2014 CASE MAY BE CITED AS: Deal v Kodakkathanath [No 2] ---
APPEAL — Whether order for remittal should be made — proceeding remitted to County Court of Victoria for re-trial.
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APPEARANCES: Counsel Solicitors For the Applicant Mr A Ingram Melbourne Injury Lawyers Pty Ltd For the Respondent Mr M Wheelahan QC with
Mr S GladmanMinter Ellison WARREN CJ:
ASHLEY JA:
DIGBY AJA:1 By amended writ filed 20 September 2013 the appellant sought pain and suffering damages for injury to her right knee. She alleged that she had sustained the injury on 19 September 2007 in the course of her employment by the respondent as a primary school teacher when she fell descending a small set of steps whilst carrying stock cards to which were attached papier mache displays. She pleaded that the employer had breached its common law duty to provide her with a safe system of work and she pleaded a stand-alone claim for breach of statutory duty. As a particular of the common law breach, and in her claim for breach of statutory duty she relied upon alleged breaches of Regulations 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007, made pursuant to the Occupational Health and Safety Act 2004.
2 The proceeding came on for hearing by a judge and jury in the County Court in August 2014. The appellant’s case in the main relied upon the alleged statutory breach.
3 The judge ruled that the circumstances in which the appellant had been injured did not call the regulations upon which she relied into play. They related to the risk of musculoskeletal disorder associated with hazardous manual handling. The judge’s ruling left standing the balance of the appellant’s claim reliant upon alleged breach of the employer’s common law duty. At the end of the seven day trial, the jury swiftly rejected that claim, and so the judge entered judgment for the respondent.
4 On appeal by the appellant to this court, the majority concluded that it had been open to the jury to conclude that —
(1)the task in which the appellant was engaged at the time of injury constituted ‘manual handling’ as defined by the Regulations;
(2)the activity in which the appellant was engaged was ‘hazardous manual handling’; and
(3)the injury sustained by the appellant was a ‘musculoskeletal disorder’.
5 The majority concluded, however, that the duty imposed upon an employer to —
ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.
was not, as a matter of construction, engaged in the circumstances. That was because the words ‘associated with’ required that there be a ‘close connection’ between the activity engaged in and the anticipated risk of harm; and because it could not be said to be reasonably practicable for an employer considering the generic task engaged in by the appellant to conclude that the task would, or even might, involve hazardous manual handling.
6 In consequence, Digby AJA dissenting, the Court dismissed the appeal.
7 On further appeal, the High Court decided, upon assumptions that it had been open to the jury to conclude that the task engaged in by the appellant constituted ‘manual handling’ and ‘hazardous manual handling’ within the meaning of the Regulations, and that the injury sustained by the appellant could be held to be a ‘musculoskeletal disorder’, that it had been open to the jury to conclude that the respondent had been in breach of r 3.1.2, and that this had been a cause of the appellant’s injury.
8 As to the words ‘associated with’ in r 3.1.2, the plurality[1] said that:
the risks of musculoskeletal disorder to which reg 3.1.2 is directed are confined to risks of musculoskeletal disorder that arise from, and thus are caused by, something which is intrinsic to the hazardous manual handling task.[2]
[1]French CJ, Kiefel, Bell and Nettle JJ. Gageler J gave a separate judgment agreeing in the result.
[2]Deal v Kodakkathanath (2016) 258 CLR 281, 297 [41].
As to reasonable practicability of identifying the risk, the plurality stated that:
The test is whether it was reasonably practicable for the respondent to identify the task of removing displays from the pin-board with a step ladder as involving hazardous manual handling. That is an objective question of fact which, in this case, was for the jury to decide.[3]
[3]Ibid 301 [52].
10 In the event, the plurality concluded that:
In the result, it should be concluded that there was evidence fit to go to the jury from which the jury could have inferred as a matter of objective fact that it was reasonably practicable for the respondent to identify the task of taking down the displays with the use of the step ladder as a task involving hazardous manual handling and reasonably practicable for the respondent to take steps to eliminate or substantially reduce the risk, which in this case eventuated, of a musculoskeletal disorder associated with that task.[4]
[4]Ibid 302-303 [56].
11 The High Court ordered as follows:
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 24 July 2015.
3.Remit the matter to the Court of Appeal for determination.
4.The respondent pay the appellant’s costs of the appeal to this court and of the appeal to date in the Court of Appeal.
12 The parties are at odds as to what orders this Court should now make. Neither party submits that the Court should determine the appellant’s case founded on breach of statutory duty.[5] We agree that this Court should not do so, not least because the appellant proposes to adduce further evidence upon the questions now opened up for determination, and because, for all that the Court knows, the respondent may wish to adduce further evidence upon those questions.
[5]In which we include alleged breach of regulations as a particular of negligence.
13 The appellant submits –
that the preferable course is that the proceeding be remitted to the trial judge, or if he is unavailable, to another Judge in the County Court nominated by the Chief Judge, to be determined upon the evidence which was adduced at the trial and such further evidence as the Appellant may be advised in consequence of the High Court judgment. …
there could be no suggestion that the Defendant would receive other than a fair trial were the remitter to be heard by Judge alone. Further, a remitter on that basis would involve very significant cost savings by virtue of the significant additional costs which would be incurred by the Plaintiff in presenting her full case at trial on a second occasion. That is a significant cost burden for a litigant to bear. Having made erroneous submissions at trial which induced the erroneous rulings of the trial judge, it would be a strange result if the defendant was now to insist on another full trial before a Judge and jury and the associated costs to the Plaintiff which necessarily would flow from an order.[6]
[6]Submissions of the Appellant, 28 April 2017, [4], [5].
14 The appellant relies upon ss 7(1) and 8(1) of the Civil Procedure Act 2010, which are concerned with facilitation of the just, timely and cost-effective resolution of the real issues in dispute.
15 The respondent submits that the proceeding should be remitted for re-trial on all issues by a differently constituted court. It is contended that —
It would be unfair to the parties and the trial judge to require his Honour to make findings on material questions of fact based on the evidence adduced at the first trial. … The first trial commenced on 25 August 2014 before the trial judge and jury. The jury was the tribunal of fact; the trial judge’s role was to ensure that the trial was conducted according to law. Thus, it fell to the jury — and not the trial judge — to assess:
(a)the credibility and reliability of the witnesses during the course of the trial; and
(b)the questions of fact, degree and value judgment that were involved in determining whether the respondent had breached any duty that it owed to the appellant at common law or under statute.
Having regard to the mode of trial and the passage of time, the Court should not assume that the trial judge is now in a position to make findings supported by adequate reasons based on the evidence adduced at the trial, including findings about the credibility and reliability of witnesses. The position is a fortiori with respect to a different judge of the County Court.[7]
[7]Submissions of the Respondent, 28 April 2017, [9]-[10].
16 The respondent contends that the mode of trial should be dealt with as a matter of practice and procedure by the judge of the County Court who becomes seized of the matter.
17 The respondent also submits that:
The appellant’s proposed orders contemplate that the appellant alone should be permitted to adduce further evidence at the re-trial. It would be unjust, however, to permit the appellant to adduce further evidence while denying to the respondent the same opportunity.[8]
[8]Ibid [12].
18 Like the appellant, the respondent relies upon ss 7 and 8 of the Civil Procedure Act 2010. The respondent emphasises the need to ensure that the parties have as fair a trial as the Court can provide.
19 In our opinion, the course proposed by the respondent is to be preferred. In our view, it is the course which will best conform with s 7 of the Civil Procedure Act 2010.
20 It would be undesirable and potentially productive of injustice for the issues which are alive in consequence of the decision of the High Court to be remitted to the original trial judge, or another nominated judge, for determination upon the evidence adduced at the trial, supplemented (as the appellant proposes) by further evidence which the appellant alone may choose to adduce.
21 The effluxion of nearly three years since evidence was adduced in this matter means, in our view, that there is a real prospect that the trial judge would have a materially reduced conversance and command of the evidence adduced, particularly given that the trial was conducted, and relevant evidence was adduced, in the expectation that the jury would be the trier of fact.
22 Because the jury was to be the trier of fact, it was the jury and not the trial judge that was likely to have primarily focused upon the credibility and reliability of witnesses called at trial and upon the questions of fact, degree and value judgment which were potentially relevant to the breaches of statutory duty alleged by the appellant.
23 Although neither party proposed such a course, we should say that it would be undesirable and potentially productive of injustice if there was to be a re-trial held upon the evidence adduced at the first trial supplemented by such additional evidence as one or other party adduced on the re-trial. The trier of fact — whether jury or judge alone — would be considerably inhibited in assessing the credibility and reliability of witnesses whose evidence was represented by transcript alone.[9]
[9]Even if it turned out that there was a video recording of the evidence, the atmosphere of a trial would not be fully recreated.
24 It is true, as the appellant points out, that to conduct a re-trial on all issues will be more time consuming and expensive than the course which she proposes. On the other hand, she will have the opportunity to advance a case — that is, with respect to breach of the employer’s common law duty — which, save for reliance upon breach of the Regulations, was rejected by the jury in 2014.
25 As to mode of trial, we think that the decision should lie in the hands of the County Court judge who is called upon to deal with the matter. Whether the re-trial should be by judge and jury or judge alone should be determined by that judge.
26 Finally, we think that there should be no order for costs with respect to the parties’ competing submissions. We have rejected the course proposed by the appellant. But the respondent did not seek costs in the event that its submissions were accepted.
27 We will order that —
(1)The appeal is allowed.
(2)The judgment entered in the County Court of Victoria on 2 September 2014 is set aside.
(3)The proceeding is remitted to the County Court of Victoria for re-trial on all issues before a differently constituted Court.
(4)The costs of the first trial are reserved to the judge who presides over the re-trial of the proceeding.
(5)There is no order as to the costs of the appeal subsequent to 24 August 2016.
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