Kiriwellage v Best & Less Pty Ltd - [2013] VSCA 355

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0252

PATRICIA SUE KIRIWELLAGE

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)

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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

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.

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%.

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.

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.

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

The trial commenced on 21 November…

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: [2013] VSCA 355
Decision Date: 5 December 2013

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