Gust v Merbein Aged Care Inc (Ruling No 2)
[2018] VCC 602
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-02031
| TANIA MAREE GUST | Plaintiff |
| v | |
| MERBEIN AGED CARE INC | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 1, 2, 5, 6, 7, 8, 9, 13, 14, 15, 16, 19, 20 and 21 March 2018 | |
DATE OF RULING: | 22 March 2018 | |
CASE MAY BE CITED AS: | Gust v Merbein Aged Care Inc (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 602 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Civil jury trial – application by plaintiff for judgment notwithstanding jury’s verdict of finding of contributory negligence (non obstante veredicto) – whether jury verdict in relation to contributory negligence should be set aside – finding that there was evidence upon which a reasonable jury, properly directed, could find the plaintiff guilty of contributory negligence which was a cause of the plaintiff’s injury – application dismissed
Cases Cited:King v Amaca Pty Ltd [2011] VSC 422; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; McLean v Tedman (1984) 155 CLR 306; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Davies v Adelaide Fertiliser Co Ltd (1946) 74 CLR 541; Sungravure Pty Ltd v Meani (1964) 110 CLR 24; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421; Kulczycki v Metalex Pty Ltd [1995] 2 VR 377
Ruling: Jury verdict of contributory negligence upheld.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr G Clark | Ryan Legal |
| For the Defendant | Mr R Kumar with Mr D Churilov | Hall & Wilcox |
HER HONOUR:
1 The plaintiff, a laundry worker, suffered injury on 19 December 2012 during the course of her employment with the defendant whilst pushing a laundry trolley.
2 Senior Counsel for the plaintiff submitted the defendant was negligent, inter alia, in that it failed to provide a safe system of work and equipment for the plaintiff in performing her duties.
3 Following a thirteen-day trial, on 21 March 2018, the jury returned a verdict for the plaintiff in her action for negligence against the defendant. The jury also found the plaintiff guilty of contributory negligence, apportioning her share of responsibility for her injuries at 20 per cent.
4 After the jury verdict was announced, the plaintiff applied for an order that the jury’s verdict in relation to contributory negligence be set aside pursuant to leave that I reserved on 20 March 2018 non obstante veredicto at the conclusion of the evidence.
5 In his final address, Leading Counsel for the defendant relied on two allegations of contributory negligence:
(a) If the trolley was overloaded, the plaintiff was responsible for its over loading;
(b) The plaintiff failed in her reporting of hazards and maintenance concerns to the defendant.[1]
[1]Transcript (“T)” 1069
6 It was submitted these matters constituted a failure by the plaintiff to take care for her safety, which the defendant contended was a cause of the injury she sustained.
7 In King v Amaca Pty Ltd,[2] Kyrou J set out the legal principles in relation to applications non obstante veredicto where the application was made by a defendant:
(a)The defendant
plaintiffmust establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.[3](b)Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.[4]
(c)A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.
(d)A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.
[2][2011] VSC 422
[3]Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 31; Naxakis v Western General Hospital (1999) 197 CLR 269, 274-275
[4]Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 230
8 In support of this application, Senior Counsel for the plaintiff submitted there was no evidence of contributory negligence on the plaintiff’s part in relation to either allegation.
9 As to the overloading allegation, it was submitted that as the plaintiff was following the system of work, there could be not finding of contributory negligence.
10 As I indicated during discussions with counsel, in my view, this argument was a very strong one. There was no evidence that the plaintiff, whilst seen regularly by a number of employees, pushing a heavily laden trolley around the facility, was ever told not to push such a heavy load or criticised in any way for doing so.
11 The plaintiff was undertaking her work in accordance with a system of work that permitted the work to be done in this way and, accordingly, it was not open to the jury to make a finding of contributory negligence in this regard.[5]
[5]Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Davies v Adelaide Fertiliser Co Ltd (1946) 74 CLR 541; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421; Kulczycki v Metalex Pty Ltd [1995] 2 VR 377
12 However, the jury’s verdict insofar as it related to the other allegation of contributory negligence – failing to report her problems with the trolley in the defendant’s computer system Manad – was open on the evidence.
13 In answering “Yes” to Question 1, it seems the jury accepted that prior to the incident, the plaintiff and or other employees had complained of their difficulties pushing a five-tier trolley over the carpet. However, those complaints were somewhat vague and made verbally, not entered in Manad as the defendant required was the defendant’s system.
14 The plaintiff knew that she was required to use Manad to record these type of complaints and it was important that she do so. Whilst she may have had some difficulty logging such complaints on the computer, she had done so before.[6]
[6]Exhibit 7
15 A number of witnesses gave evidence of the reasons for the operation of the Manad system and the benefits and aims thereof. In general terms, it was designed to keep a record of maintenance issues/complaints in the defendant’s system, such as that the subject of this case, which could then be monitored and acted upon and discussed at OH & S meetings.
16 There was evidence that maintenance issues entered on Manad were acted upon by the defendant. An example thereof was Dale Grembka’s complaint logged on 1 July 2014 in relation to trolley wheels. In response, new wheels were fitted.[7]
[7]Exhibit “E”
17 In these circumstances, there was evidence that the jury could act on to find that by her failure to log her complaint on Manad, and put the defendant on notice as to the issue, and only complain verbally to Mr Smithwick, the plaintiff herself was guilty of negligence and that such negligence on her part was a cause of her injury.
18 In those circumstances, the plaintiff’s application is dismissed.
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