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Eaton v ISS Catering Services Pty Ltd

Eaton v ISS Catering Services Pty Ltd

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Case Copied 12 December 2013 33 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0112

RHONDA EATON	Appellant
RHONDA EATON	v
ISS CATERING SERVICES PTY LTD	First Respondent
ISS CATERING SERVICES PTY LTD	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…

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.

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Details

Case: [2013] VSCA 361
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the case of Eaton v ISS Catering Services Pty Ltd, the plaintiff, Eaton, appealed against a jury verdict that found ISS Catering Services Pty Ltd not liable for injuries Eaton sustained from a slip and fall on a dewy, wet, moss covered concrete surface with loose pebbles. The court was tasked with determining whether the trial judge's refusal to grant Eaton's request for adjournments to tender expert evidence about the state of the premises five years prior constituted an error. The appeal hinged on whether the trial judge should have allowed Eaton to present this evidence despite the delay in providing it.

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