Lane v Monash Health (Ruling 2)

[2022] VCC 1354

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-21-00147

JULIE LANE	Plaintiff
v
MONASH HEALTH	Defendant

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JUDGE:	His Honour Judge Lauritsen
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28, 29 April & 2, 3, 4, 5, 6, 9, 10, 11 May 2022
DATE OF RULING:	9 August 2022
CASE MAY BE CITED AS:	Lane v Monash Health (Ruling 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1354

REASONS FOR RULING
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Subject:COMMON LAW

Catchwords:          Application for judgment non obstante veredicto if jury returned verdict of contributory negligence – 80 per cent contributory negligence verdict by jury – whether there was no evidence upon which reasonable jury could return verdict of contributory negligence

Cases Cited:Pasqualotto v Pasqualotto [2011] VSC 550; King v Amaca Pty Ltd [2011] VSC 422; Phillips v Ellison Brothers Pty Ltd (1941) 65 CLR 221; Kulczycki v Metalex Pty Ltd [1995] 2 VR 377; Bankstown Foundery Pty Ltd v Braistina (1986) 160 CLR 301; VWA v Carrier Air Conditioning [2006] VSCA 63

Ruling: Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards QC with Mr J. Angenent	Zaparas Law
For the Defendant	Ms R. Annesley QC with Ms K. Manning	Hall & Wilcox

HIS HONOUR:

1At the end of the evidence in the trial, Ms Lane's counsel sought to reserve leave to move for judgment non obstante veredicto if the jury did not find Monash Health negligent or if they found there was contributory negligence on the part of Ms Lane.  Monash Health did not oppose the reservation of leave.  I reserved leave.  The jury found both Monash Health and Ms Lane negligent.  As to the latter, in answer to the question, in what percentage did they attribute blame to Ms Lane, they answered 80 per cent.  Ms Lane has now applied for judgment in her favour and disregarding the jury's finding of contributory negligence.  There is no issue about Ms Lane's entitlement to make this application.

2The parties are in unison as to the applicable principles of law.  Ms Lane's counsel referred me to Pasqualotto v Pasqualotto[1], and Monash Health's counsel to King v Amaca Pty Ltd[2].  Both rulings of Kyrou J.  In the former, His Honour said:[3] 

‘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][2011] VSC 550

[2][2011] VSC 422 at [7] to [10]

[3] [2011] VSC 550 at [19] – [22]

3In a footnote, Kyrou J cites the judgment of Rich J, in Phillips v Ellison Brothers Pty Ltd[4] as authority for the principle in paragraph 20.  Where a party or parties elect for trial by jury, as Rich J noted, this means the party or parties have the right of a party to have issues of fact decided by a jury.  To give value to that right, a trial judge cannot intervene in the manner sought unless there is no evidence to support the verdict.

[4](1941) 65 CLR 221 at [230]

4In pleading contributory negligence, Monash Health relied upon two particulars:[5]

(a)   Ms Lane failed to avail herself of the alternative shifts offered to her; and,

(b)   she failed to avail herself of the opportunity to take annual leave which was offered to her.

[5] Defence dated 6 April 2021 at paragraph 13

5Monash Health raised evidence from which the jury could find:

(a)   Ms Lane was scared of Mr M and felt vulnerable on night shift.

(b)   Ms Lane felt overwhelmed from, at least, June 2018.  Ultimately, the cause of her injury was the continued exposure to abuse and assault by Mr M.

(c)   More than once, Ms Vaxman offered her a change of shift.

(d)   Ms Lane was offered annual leave while Monash Health secured relocation of Mr M.

(e)   Ms Lane rejected both offers because she did not want to lose her penalty rates or use her annual leave.

(f)    Ms Lane told Monash Health she was happy to work nightshift at Eastwood Hostel.  Just pausing there, this piece of evidence has more to do with the issue of Monash Health's negligence raising as it does the issue of foreseeability.

6Ms Lane submitted the allegations of contributory negligence had no proper basis in law and there was no legal foundation for the jury's verdict.  She submitted it cannot be contributory negligence for her to accept the shifts offered by Monash Health and turn up for work.  She relied upon part of a paragraph of a judgment of Ashley J in Kulczycki v Metalex Pty Ltd:[6]

"…where the alleged contributory negligence consists of doing that which the employer's system of work requires, there is no room for a finding of contributory negligence."

[6][1995] 2 VR 377 at 409

7Earlier, Ashley J said:[7]

‘As Dawson J observed in Nicol at 626:

What the plaintiff did was to use the equipment provided by the company and carry out the system. That cannot amount to contributory negligence even if the manner in which the plaintiff was to carry out the task was manifestly dangerous.”

[7] At 406

8

Despite Dawson J being the sole dissentient,

Ashley J considered the above principle remained valid.  Contributory negligence was found against Mr Nichol because he acquiesced in an unsafe system and helped put it into operation.

9The last two sentences of the preceding paragraph reads:[8]

‘It seems somewhat unsatisfactory that an employer should be permitted to rely in reduction of a worker's claim upon conduct of the worker which is facilitated by its own breach of duty. Yet, it seems prima facie anomalous that a worker should be relieved altogether from responsibility for his want of reasonable care for his own safety.’

[8] [1995] 2 VR 377 at 406

10These passages were preceded by a citation from Bankstown Foundery Pty Ltd v Braistina[9], explaining the nature of contributory negligence:[10]

‘A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer has failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.’

[9](1986) 160 CLR 301

[10] At [310]

11This is not a case where the conduct of Ms Lane amounted to inadvertence, inattention or mis-judgment.  She made a deliberate decision to reject the proposed remedies, or at least the jury could find that.

12In Kulczycki's case, Mr Kulczycki was an experienced and competent toolmaker.  On the day he injured his lower back, he was directed to repair a machine which had broken down and to do so in the vicinity of the machine itself rather than in another section of the factory.  To repair the machine required the removal of a component, which was heavy.  Mr Kulczycki removed it with the help of another worker.  He repaired the component within 15 minutes.  He waited for someone to help him to reinstall the component.  He did not actively seek help even though it was available.  Without waiting longer, he reinstalled the component and injured his back.

13Although finding the defendant negligent, the jury found Mr Kulczycki was 75 per cent responsible for his injury.  On appeal, the judges came to different positions.  Tadgell J upheld the jury's finding.  Nathan J did not, considering it perverse.  Ashley J considered there was no contributory negligence.  The appeal was resolved by ordering a new trial on the issue of liability (including contributory negligence).  The jury's assessment of damages was retained.  In effect, the positions of Nathan J and Ashley J prevailed with the ordering of a new trial, limited to the issue of liability.

14Ms Lane rejected taking leave or changing shifts.  The extent of the period of leave depended upon the time it took Monash Health to transfer Mr M to another facility.  It was uncertain.  This uncertainty led Ms Lane's counsel to describe the proposal as "no genuine solution".  Whether that was so was a matter for the jury. 

15In any event, her counsel argued that the proposal was equivalent to an argument she ought to have designed for herself a safer system of work, which is impermissible.  The counsel relied upon paragraph from VWA v Carrier Air Conditioning[11] where Ashley J said:[12]

‘Fourth, even in an extreme case – which was not this situation – an employer’s duty to provide a safe system of work is not discharged by leaving it up to its employee to devise the system.’

[11] [2006] VSCA 63

[12] At paragraph 9

16I would not describe the proposal as the equivalent of Ms Lane devising a safe system of work.  It was a proposal, coming from Monash Health, intended to protect her from injury.  Her acceptance or rejection devised nothing.  The same consideration applies to the proposal to change shifts.

17As to that proposal, Ms Lane's counsel described it as "of no substance", because Mr M would be present at the facility during shift two days of the week and some of his misbehaviour occurred during that shift.  Whether the proposal was “of no substance” was a matter for the jury to assess.

Causation

18Ms Lane's counsel submit her failure to avail herself of either proposal was not a cause of the injury she suffered.  In relation to a move to dayshift, they point to the incidents on 26 August and 3 September as occurring during the dayshift, while the 28 September incident occurred during the nightshift.  Accordingly she was as likely to be injured if she was on dayshift as she was on nightshift.

19Moreover, if Ms Lane took a month's leave on 26 August, she would have returned to work by 28 September.

20Returning to the opening sentence which I quoted from Braistina's case:

‘A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury.’

21On the evidence, it was open for the jury to find Ms Lane knew she must cease her contact with Mr M for her safety.  At the time, she was in the best position to assess the impact of his behaviour upon her mental health.  She knew her mental state was deteriorating.  She knew Monash Health was trying to remove Mr M from the facility.  To Ms Vaksman's suggestion of taking leave, Ms Lane said she could not afford it and she did not know how long she would need to take leave before Mr M left the facility.

22As to the change of shift, Ms Lane believed contact may not cease even though she was working a different shift.  During the day, Mr M could leave from and return to the facility as he pleased.  A change of shift may not eliminate the risk but it might reduce it.

23Nevertheless, the consequences, including financial, for Ms Lane, of these proposals were discussed with Ms Vaksman.  To Ms Vaksman, Ms Lane's stated position was a change to dayshift or taking of annual leave was penalising her financially for his behaviour, and why should she change her life because of his behaviour.  Ms Lane focused on Monash Health's obligation to reduce or eliminate the risk to her, and ignore her own obligation.  It was open to the jury to reach that conclusion.

24On a view the jury could have taken, her reasons were partly or mainly, unrelated to considerations of her safety.  If so, it raised the dichotomy between behaviour, apparently “negligent”, and that which is not.  It was open to the jury to take the view her rejection was negligent and contributed to the occurrence of her injury.

25The passage of Ashley J in Kulczycki's case, relied upon by Ms Lane does not apply here.

26Finally, I do not consider Ms Lane's failure to seek to take the issue away from the jury as an impediment to the mounting of this argument; nor is the content of Ms Lane's senior counsel in his closing address to the jury.  It does not even lessen the weight to be given to the submissions.  All it shows is an unfortunate timing. 

27I will refuse the application.

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