McKane v Conbar Transport Pty Ltd - [2022] VSC 724

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S ECI 2020 00301

LYNETTE MARGARET MCKANE	Plaintiff
v
CONBAR TRANSPORT PTY LTD (ABN 19 107 979 844)	First Defendant
FEDERATION COUNCIL (ABN 30762 048 084)	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne (virtual hearing)
DATE OF HEARING:	24 November 2022
DATE OF RULING:	28 November 2022
CASE MAY BE CITED AS:	McKane v Conbar Transport Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 724

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TORTS – Negligence – Pre-trial issues – Application to dispense with a jury – Application of Victorian and New South Wales laws differently against two defendants – Dispensation on the basis of legal complexity – Jury to decide the questions of liability – Quantum to be assessed by Judge alone – Halligan & Ors v Curtain & Anor [2013] VSC 124.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B Dooley SC	Don Cameron & Associates
For the First Defendant	P Jens KC and M Clark	Lander & Rogers
For the Second Defendant	D McWilliams	Mills Oakley

HER HONOUR:

Introduction

This ruling deals with the plaintiff’s application that the mode of trial be by judge alone. The plaintiff was injured while working for the first defendant in an incident occurring on 2 April 2015 at saleyards operated by the second defendant. The injury is alleged to have occurred when, in the course of loading sheep into a livestock truck, the plaintiff was struck by a large ewe and thrown to the ground suffering injury to her left arm and hand and other consequential injuries. Her damages claim is listed for hearing in the circuit at Wodonga commencing 28 November 2022. The first defendant has sought a trial before a jury in accordance with Order 47 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiff has made application to dispense with the jury. The second defendant supports the plaintiff’s application.

The parties and the claims made

The plaintiff’s employment with Conbar Transport is connected with Victoria and she is entitled to compensation under the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act). Against her employer, the claim for damages is impacted by Part 7 Division 1 of the WIRC Act which deals with choice of law in actions for damages against an employer such as the first defendant. Section 319 provides that:

(1)If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs –
(a)whether or not a claim for damages in respect of the injury can be made; and
(b)if it can be made, the determination of the claim.

The plaintiff has received compensation under the WIRC Act and has obtained a ‘serious injury certificate’, in order to maintain the proceeding.[1] She relies on a cause…

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.

Continue reading McKane v Conbar Transport Pty Ltd

Details

AGLC: McKane v Conbar Transport Pty Ltd [2022] VSC 724
Case: [2022] VSC 724
Decision Date: 28 November 2022

CaseChat Overview and Summary

McKane v Conbar Transport Pty Ltd is a case involving a claim for damages for injuries sustained by the plaintiff, McKane, in a motor vehicle accident. The defendant, Conbar Transport Pty Ltd, is the registered owner of the vehicle involved. The dispute in this case concerns the liability for the accident and the assessment of damages. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to decide was whether to dispense with a jury for the trial. The plaintiff sought to have the jury decide the questions of liability, while the defendant opposed the use of a jury on the basis of the complexity of the legal issues involved. Additionally, there was a question of whether different laws from Victoria and New South Wales should apply to the two defendants. The court had to balance the complexity of the case against the principle that a jury should decide questions of liability.

In determining whether to dispense with the jury, the court considered the case of Halligan & Ors v Curtain & Anor [2013] VSC 124, which provided guidance on the application of the principle in cases of legal complexity. The court found that while the case presented significant legal issues, the core questions of liability were still appropriate for a jury to decide. The court was also satisfied that the appropriate law was that of Victoria, given the location of the accident and the primary connection of the parties to Victoria. Consequently, the court decided that the jury should decide the issues of liability, while the assessment of damages would be conducted by the judge alone.

The final orders of the court were that the trial would proceed with a jury to determine the questions of liability, and that the judge would assess the quantum of damages if liability was found. This decision balanced the need for a thorough examination of the complex legal issues with the traditional role of a jury in deciding questions of negligence and fault.

Orders