Kiriwellage v Best & Less Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0252

PATRICIA SUE KIRIWELLAGE

v

BEST & LESS PTY LTD

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JUDGES:

OSBORN and BEACH JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

3 December 2013

DATE OF JUDGMENT:

5 December 2013

MEDIUM NEUTRAL CITATION:

[2013] VSCA 355

JUDGMENT APPEALED FROM:

[2012] VSC 620 (Macaulay J)

- - -

NEGLIGENCE – Employer – Contributory negligence – Hindsight – Jury verdict – Whether contributory negligence open – Contributory negligence not open.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr J P Brett with
Mr J J Fitzpatrick
Arnold Thomas and Becker
For the Respondent  Mr M F Wheelahan SC with
Ms M Norton
Thomsons Lawyers

OSBORN JA
BEACH JA:

Introduction

  1. Best & Less Pty Ltd, the respondent, is a clothing retailer.  Patricia Sue Kiriwellage, the appellant, was an assistant store manager with the respondent.  On 9 February 2007, the appellant was struck on her lower back by a bundle of metal brackets which fell from the top of a pallet the appellant was in the process of unpacking in the storeroom of the respondent’s premises in Altona. 

  1. The appellant sued the respondent for damages in respect of her injuries pursuant to s 134AB of the Accident Compensation Act 1985.  On 6 December 2012, the jury returned a verdict for the appellant on the issue of negligence and assessed the appellant’s damages in the sum of $832,000.  However, the jury also found that there was contributory negligence and assessed the appellant’s contributory negligence at 20%. 

  1. On 13 December 2012, judgment was entered in accordance with the jury’s verdict in the sum of $518,738.[1] 

    [1]This sum was calculated after an adjustment in respect of an agreed Fox v Wood component (see Fox v Wood (1981) 148 CLR 438), an agreed amount in respect of interest, and the reductions required by s 134AB(25) of the Accident Compensation Act 1985 and s 26(1) of the Wrongs Act 1958.

  1. The appellant appeals in relation to the jury’s finding of contributory negligence.  In short, the appellant contends that it was not open to the jury to find that there was any contributory negligence.  The appellant’s grounds of appeal are as follows:

1.        The finding of any contributory negligence on the part of [the appellant] being a cause of her injury was not open.

2.        There was no breach by [the appellant] of any duty she owed to herself which could be found to be a cause of her injuries.

3.        The learned trial judge was in error in rejecting the application by [the appellant] to enter judgment in favour of [the appellant] disregarding the finding of contributory negligence by the jury.

  1. The appellant seeks an order setting aside the judgment below insofar as it relates to contributory negligence, and in lieu thereof judgment in a sum unreduced by any amount for contributory negligence.[2]

    [2]Calculated in the notice of appeal to be $645,281.

The trial below

  1. The trial commenced on 21 November…

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Details
Case
[2013] VSCA 355
Decision Date

CaseChat Overview and Summary

The case of Kiriwellage v Best & Less Pty Ltd involved an employee who alleged negligence on the part of the employer, Best & Less Pty Ltd. The plaintiff claimed that the employer failed to provide a safe working environment, resulting in injury. The matter was brought before the court to determine whether the plaintiff's own actions contributed to the injuries, and if so, whether the employer was liable for the damages. The court had to decide if contributory negligence was applicable and assess the degree of fault attributable to both parties.

The primary legal issues before the court were whether the plaintiff's actions contributed to the injuries and, if so, to what extent. The court had to consider the evidence and determine if the plaintiff's actions constituted contributory negligence. This involved assessing the foreseeability of the plaintiff's actions and the extent to which they contributed to the injuries. Additionally, the court needed to decide if the employer's negligence was the primary cause of the injuries.

In delivering the judgment, the court found that the plaintiff's actions did not constitute contributory negligence. The plaintiff had acted reasonably and with care in the circumstances. The court held that the employer's negligence was the primary cause of the injuries and that hindsight alone should not be used to judge the plaintiff's actions. As a result, the court concluded that the employer was liable for the full extent of the damages suffered by the plaintiff. The court's reasoning focused on the foreseeability and reasonableness of the plaintiff's conduct, ultimately finding that the employer's liability was not diminished by the plaintiff's actions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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