Green v Emergency Services Telecommunications Authority - [2014] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0158

GLENYCE RUTH GREEN	Appellant
	v
EMERGENCY SERVICES TELECOMMUNICATION AUTHORITY	Respondent

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JUDGES	ASHLEY, PRIEST and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 July 2014
DATE OF JUDGMENT	10 September 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 207
JUDGMENT APPEALED FROM	Green v Emergency Services Telecommunication Authority (Unreported, County Court of Victoria, Judge Lacava)

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ACCIDENT COMPENSATION – Workplace injury – Negligence and breach of statutory duty – Jury trial – Verdict for defendant – Recent invention – Legal practitioners – Counsel’s duties – Attack on plaintiff – Unjustified allegation of concoction and collusion between plaintiff and solicitor – Duty of counsel to ensure that evidence exists justifying allegation – Appeal allowed – New trial ordered.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Wyles QC with Mr C S Smale	Saines Lucas Solicitors
For the Respondent	Mr M F Wheelahan QC with Mr S E Gladman	Thomson Geer

ASHLEY JA
PRIEST JA
SANTAMARIA JA:

Introduction

Glenyce Ruth Green, the plaintiff in proceedings in the County Court, appeals against judgment for the defendant entered on 11 October 2013.

By writ issued on 10 September 2012, the appellant sued her employer, the Emergency Services Telecommunication Authority (‘ESTA’), claiming that in the course of her employment as a call-taker and fire-dispatcher she had sustained personal injuries as a result of her employer’s negligence or breach of statutory duty.

At trial, the appellant’s case centred upon an allegation that she suffered injury to her hands, wrists, arms and shoulders as the result of an excessive work-load undertaken by her on Black Saturday— 7 February 2009[1] — in unsatisfactory working conditions. That was the burden of the opening by her senior counsel,[2] and of her evidence in chief. Senior counsel opened to the jury that, ‘we’ll be asking you to find that it was the work on that day [Black Saturday] that caused [the injuries] to all start up’.
[1]The appellant also relied, more broadly, on work undertaken by her during the 2008–2009 fire season.
[2]He was not counsel who appeared for the appellant in this Court.

After a trial lasting nine days, on 11 October 2013 a jury of six returned a verdict for the defendant, finding that there was no negligence or a breach of a statutory duty which was the cause of injury, loss or damage to the appellant. Judgment was thus entered for ESTA, and the appellant was ordered to pay costs.

By Notice of Appeal dated 25 October 2013, the appellant seeks to set aside the jury’s verdict and consequential orders, and seeks an order for a retrial.

For the reasons that follow, we would allow the appeal.

Grounds of appeal

There are 11 grounds of appeal, grouped under three headings — ‘Conduct of counsel’ (grounds 1 to 3), ‘Conduct of the trial judge’ (grounds 4 to 8) and ‘The Workload Document’ (grounds 9 to 11).

The fate of this appeal, as will be seen, lies…

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: [2014] VSCA 207
Decision Date: 10 September 2014

CaseChat Overview and Summary

In the case of Green v Emergency Services Telecommunications Authority, the plaintiff sought compensation for injuries sustained during the course of his employment. The plaintiff alleged that the defendant had been negligent and breached statutory duties under the Occupational Health and Safety Act. The matter proceeded to a jury trial, which resulted in a verdict for the defendant. Subsequently, the plaintiff filed an appeal against the verdict, contending that the defendant's counsel had made an unjustified allegation of concoction and collusion between the plaintiff and his solicitor, which had prejudiced the plaintiff's case.

The court was required to determine whether the defendant's counsel had breached their duties by making an allegation of concoction and collusion without sufficient evidence to support the claim. The court had to consider whether such an allegation was justified and whether it had unfairly prejudiced the plaintiff's case, potentially warranting a new trial. Additionally, the court had to examine the extent to which the allegation may have influenced the jury's decision.

The court found that the allegation of concoction and collusion was not supported by any evidence and was therefore unjustified. The court held that the defendant's counsel had breached their duties by making such an allegation without ensuring that there was evidence to justify it. This breach had the potential to unfairly prejudice the plaintiff's case, and as such, the court allowed the appeal and ordered a new trial. The court emphasised the importance of counsel ensuring that any allegations made are supported by evidence and that they do not unfairly prejudice the opposing party's case.

In light of the findings, the court made orders for a new trial to be held, with the aim of ensuring that the plaintiff's case was not prejudiced by any unjustified allegations. The court highlighted the importance of legal practitioners adhering to their duties and ensuring that any allegations made are supported by evidence. The court also noted the potential consequences of failing to do so, including the possibility of a new trial being ordered.

Orders