SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0112
| RHONDA EATON | Appellant |
| v | |
| ISS CATERING SERVICES PTY LTD | First Respondent |
| and | |
| MARIBYRNONG CITY COUNCIL | Second Respondent |
| and | |
| VERNA JEAN JUBBER | Third Respondent |
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| JUDGES | NEAVE JA, HARGRAVE and DIXON AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 September 2013 |
| DATE OF JUDGMENT | 12 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 361 |
| JUDGMENT APPEALED FROM | Eaton v ISS Catering Services Pty Ltd (Unreported, County Court of Victoria, Judge Murphy, 30 May 2012) |
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CIVIL PROCEDURE — Appeal against jury verdict on the basis that trial judge refused to grant adjournments to allow the Appellant to tender expert evidence about state of premises five years previously — Appellant slipped and fell on a dewy, wet, moss covered concrete surface with loose pebbles — Appellant applied for adjournment in order for an expert to conduct a ‘wet and dry slip test’ — Appellant failed to comply with court direction requiring expert evidence to be served within time limit — Breach of overarching obligations — Civil Procedure Act2010 ss 7–9 — Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr R P Gorton QC with Mr G A Worth | Melbourne Injury Lawyers Pty Ltd |
| For the First Respondent | Mr J T Rush QC with Ms M Norton | Herbert Geer |
| For the Second Respondent | Mr S A O’Meara SC with Ms S Manova | Ligeti Partners |
| For the Third Respondent | Mr R W Dyer | Norris Coates |
NEAVE JA:
HARGRAVE AJA:
DIXON AJA:
Introduction
In this appeal the appellant, Ms Rhonda Eaton, challenges the refusal of a trial judge to grant adjournments requested by her, on three separate occasions, in a jury trial in the County Court, in which she sought damages for personal injury. The circumstances giving rise to the appeal are as follows.
The appellant was employed by ISS Catering Services (‘the first respondent’), to deliver meals as part of a service provided by Maribyrnong City Council (‘the second respondent’). On 25 May 2007 she was delivering a meal to the home of Ms Verna Jubber (‘the third respondent’) at 8 Hotham Street, Footscray. At the time, Ms Jubber was in a nursing home and the property was occupied by her husband, (now deceased). In her amended statement of claim the appellant alleged that she sustained injuries when she ‘slipped and fell on a dewy, wet, moss covered concrete surface with loose pebbles’ while going to the property to deliver a meal. The appellant sustained a fracture of the surgical neck and head of the left humerus which she claimed had resulted in adhesive capsulitis and a frozen shoulder. She also sought damages for psychiatric injuries.
In essence, the appellant alleged that the first and second respondents had negligently failed to provide her with a safe system of work by, among other things, failing to adequately inspect premises to which she was required to make meal deliveries, and/or failing to alert employees of risks associated with using the driveway and that…
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- Case
- [2013] VSCA 361
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the trial judge's refusal to grant the adjournments was an error that warranted the overturning of the jury's verdict. The court had to consider the overarching obligations under the Civil Procedure Act 2010, particularly sections 7–9, which impose a duty on parties to act in a manner that is just and to comply with court directions. Eaton's failure to comply with the court's direction to serve expert evidence within the specified time limit was also a critical factor.
The court concluded that the trial judge's refusal to grant adjournments was not an error. The court found that the delay in providing the expert evidence and the breach of overarching obligations under the Civil Procedure Act 2010 were significant. The court held that the Appellant's failure to comply with court directions was a substantial factor that warranted the dismissal of the appeal. Consequently, the jury's verdict was upheld, and the Appellant's appeal was dismissed.
No further orders were made by the court. The decision stands that the trial judge's refusal to grant adjournments was justified, and the jury's verdict was correctly upheld.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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