Kiriwellage v Best and Less Pty Ltd - [2012] VSC 620

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 240 of 2010

PATRICIA KIRIWELLAGE	Plaintiff
v
BEST & LESS PTY LTD	Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2012
DATE OF RULING:	13 December 2012
CASE MAY BE CITED AS:	Kiriwellage v Best & Less Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 620

---

PRACTICE AND PROCEDURE – Application for judgment without deduction for contributory negligence notwithstanding jury verdict – Leave reserved for making of the application before jury charged – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Adams QC with Mr J Fitzpatrick	Arnold Thomas and Becker
For the Defendant	Mr J Philbrick SC with Ms H Donmez	Thomsons Lawyers

HIS HONOUR:

Introduction

After a trial lasting 12 days, a jury found that the defendant, Best and Less Pty Ltd, had, by its negligence, caused injury to its employee, Ms Kiriwellage, and assessed her loss and damage at $832,000. She had been struck on the back by an object falling off a pallet of merchandise that she was unloading in the defendant’s storeroom, and suffered injury to two discs in her lumbar spine. But the jury also concluded that the injury occurred as result of her contributory negligence, finding she was 20% responsible for her own loss and damage.

After the verdict, the plaintiff applied for judgment to be entered in her favour disregarding the jury’s finding of contributory negligence on the footing that no reasonable jury, properly instructed, could have concluded that she was guilty of any such negligence.

Principles

The principles governing such an application were not in dispute. They were recently collected and set out clearly by Kyrou J in Pasqualotto v Pasqualotto,[1] and I gratefully adopt his Honour’s enumeration of them:[2]

In order for a plaintiff to succeed in an application for judgment notwithstanding the jury’s verdict of contributory negligence, the plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict of contributory negligence.
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.
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.
A trial judge should proceed with great caution and should only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.
[1]Pasqualotto v Pasqualotto [2011] VSC 550.
[2]Ibid [19] – [22] (citations omitted).

The evidence relied upon

Only the plaintiff was present when the injury occurred. The evidence as to how it occurred was confined to her account given in court and in an incident report and a workers compensation claim form. In summary, the evidence was that:

·Four pallets of boxes were in the store room to be unloaded; each pallet…

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 Kiriwellage v Best and Less Pty Ltd 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: [2012] VSC 620
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Kiriwellage v Best and Less Pty Ltd was heard, where Patricia Kiriwellage, the plaintiff, sued Best and Less Pty Ltd, the defendant, for negligence and contributory negligence. The plaintiff alleged that she was injured while working in the defendant’s storeroom when she was struck on the back by an object falling from a pallet of merchandise, which caused injury to two discs in her lumbar spine. The jury found the defendant liable for negligence and the plaintiff contributorily negligent, awarding damages of $832,000. The plaintiff then sought judgment disregarding the finding of contributory negligence.

The legal issue in this case was whether the plaintiff could succeed in an application for judgment notwithstanding the jury’s verdict of contributory negligence. The principles governing such an application were well-established and required the plaintiff to prove that there was no evidence upon which a reasonable jury, properly directed, could return a verdict of contributory negligence.

The plaintiff argued that her conduct was mere thoughtlessness or inattention, and could not constitute contributory negligence. However, the court found that the plaintiff's actions involved more deliberation and choice on her part, taking it beyond mere thoughtlessness. Considering the urgency, repetition, familiarity, and the cluttered storeroom conditions, it was open for the jury to conclude that the plaintiff did not take reasonable care for her own safety.

The court held that this was not the 'clearest of cases' for disregarding the jury's verdict of contributory negligence, and thus rejected the plaintiff's application.

No specific orders were mentioned in the ruling. However, the court's decision upheld the jury's verdict of contributory negligence and denied the plaintiff's application for judgment without deduction for contributory negligence.

Orders