Kiriwellage v Best and Less Pty Ltd

In the Supreme Court of Victoria, Patricia Kiriwellage, the plaintiff, brought an action against Best and Less Pty Ltd, the defendant, seeking damages for injuries sustained in the course of her employment. The plaintiff alleged that the defendant's negligence led to her injury, which occurred when an object fell from a pallet and struck her on the back, causing damage to her lumbar spine. The jury agreed that the defendant was negligent and assessed the plaintiff's damages at $832,000. However, the jury also found the plaintiff to be 20% contributorily negligent, which reduced her damages to $665,600. Following the verdict, the plaintiff applied for judgment to be entered in her favour, disregarding the jury's finding of contributory negligence. The principles guiding such an application were clearly outlined by Kyrou J in Pasqualotto v Pasqualotto, which the court adopted. To succeed in such an application, the plaintiff must establish that no reasonable jury, properly directed, could have concluded that she was guilty of contributory negligence.

The plaintiff's counsel argued that no reasonable jury could have found her conduct to be anything other than mere thoughtlessness or inattention, which could not constitute contributory negligence. He relied on several cases where the courts held that certain conduct did not amount to contributory negligence. However, the court found that the plaintiff's actions involved more deliberation and choice, which took her conduct beyond mere thoughtlessness. The court held that the application for judgment, notwithstanding the jury's verdict of contributory negligence, was not the 'clearest of cases' and, therefore, rejected the plaintiff's application.

The court's decision highlights the importance of carefully considering the evidence and the circumstances of each case when determining contributory negligence. In this case, the court found that the plaintiff's actions involved more deliberation and choice, which took her conduct beyond mere thoughtlessness. As a result, the court rejected the plaintiff's application for judgment, notwithstanding the jury's verdict of contributory negligence. The final orders of the court were that the plaintiff's application was dismissed, and the jury's verdict of contributory negligence was upheld.