Del Romano v Turner - [2002] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4550 of 2001

PAUL DEL ROMANO	Appellant/Plaintiff
v.
PHILLIP TURNER	Respondent/Defendant

---

JUDGES:	BUCHANAN, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 October 2002
DATE OF JUDGMENT:	3 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 166

---

Negligence - Contributory Negligence - Injury arising in course of home renovation - Unsafe system of work adopted by house owner and contractor - Whether jury's finding of 90 per cent contributory negligence perverse.

Appeal - Misdirection - Whether circumstances appropriate for appellate court to reassess apportionment.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.P. Gorton Q.C. with Mr D. O'Callaghan	Ligeti Partners Lawyers
For the Respondent	Mr C. Gunst Q.C. with Mr J.L. Parrish	Nowicki Carbone & Co.

BUCHANAN, J.A.:

I will ask Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

The appellant commenced this proceeding against the respondent on 19 April 1999 claiming damages in respect of injuries that he suffered as a result of an accident, to which I will refer later, that occurred during the renovations of his home on 25 June 1998.

The appellant alleged that the accident was caused by the respondent's negligence. The respondent denied negligence but claimed that, if he was negligent, the appellant was guilty of contributory negligence. After a trial before a judge and jury, on 12 January 2001 the jury found that the respondent's negligence was a cause of the appellant's injury, but they also found that there was contributory negligence on the part of the appellant to the extent of 90 per cent. Consequently the appellant's damages were reduced accordingly and, on 13 February 2001, judgment was entered for the appellant in the sum of $34,000 with accrued interest of $2,500.

Notice of Appeal

By notice of appeal dated 15 February 2001 the appellant appealed against the above judgment and orders on a number of grounds, none of which alleged that the learned judge had failed to charge the jury properly. So far as is relevant, the principal ground in the notice of appeal asserted that the jury's finding of 90 per cent contributory negligence on the part of the appellant was perverse; it was a finding, so it was claimed, against the evidence and the weight of it.

That no challenge was made in the notice of appeal to his Honour's charge was unsurprising given that very experienced and competent counsel for the appellant at the trial took no exception to the charge. It was not until approximately 25 September 2002 that the appellant alleged in the course of the appeal process that his Honour failed to direct the jury properly in respect of a number of matters. This complaint was made in the appellant's outline of submissions which bear the above date. No application for leave to amend the notice of appeal, however, was made to this Court until the commencement of the appeal when Mr Gorton, for the appellant, sought the relevant leave. The application…

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.

Keep reading for free

Create a free CaseChat account to read Del Romano v Turner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSCA 166
Decision Date: 3 October 2002

CaseChat Overview and Summary

In the case of Del Romano v Turner, the plaintiff, Del Romano, sued the defendant, Turner, over injuries sustained during a home renovation project. The plaintiff alleged that the defendant's negligence, along with his own contributory negligence, led to the injuries. The matter was heard in the Supreme Court of Victoria, where the jury found Turner 10 per cent negligent and Romano 90 per cent contributory negligent. Romano appealed against the verdict, arguing that the jury's finding of 90 per cent contributory negligence was perverse and that the trial judge had misdirected the jury on the principles of contributory negligence.

The primary legal issue the court had to address was whether the jury's finding of 90 per cent contributory negligence was so high as to be unreasonable or perverse, given the circumstances of the case. The court also considered whether the trial judge had misdirected the jury on the principles of contributory negligence. Moreover, the court examined whether the circumstances were appropriate for the appellate court to reassess the apportionment of negligence.

The court held that the jury's finding of 90 per cent contributory negligence was not perverse or unreasonable. It found that the trial judge did not misdirect the jury on the principles of contributory negligence. The court held that it was not appropriate for the appellate court to reassess the apportionment of negligence in this case, as the jury had considered all relevant evidence and was best placed to assess the degree of contributory negligence. Consequently, the appeal was dismissed, and the original verdict was upheld.

Orders