Micheli v Khoushaba - [2019] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2018 01398

TYRON MICHELI	Plaintiff
v
TONY KHOUSHABA	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May – 13 June 2019
DATE OF RULING:	13 June 2019
CASE MAY BE CITED AS:	Micheli v Khoushaba
MEDIUM NEUTRAL CITATION:	[2019] VSC 401

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PRACTICE AND PROCEDURE – Application for judgment notwithstanding jury verdict –Verdict in favour of plaintiff – Contributory negligence – Whether insufficient evidence for contributory negligence – Application refused – Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421; King v Amaca Pty Ltd [2011] VSC 422.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Ms M Pilipasidis	Maurice Blackburn
For the Defendant	Mr C Blanden QC with Ms A Wood	Transport Accident Commission

HER HONOUR:

Introduction

On 13 June 2019, following a 15 day trial, a jury of six returned a unanimous verdict in favour of the plaintiff in the sum of $300,000 together with a finding of contributory negligence by the plaintiff apportioned at 30 per cent. After the jury’s verdict was announced, and prior to judgment being entered in favour of the plaintiff, the plaintiff’s counsel applied for an order that the jury’s finding of contributory negligence be set aside notwithstanding the jury’s verdict.[1]
[1]I will adopt the expression ‘notwithstanding the jury’s verdict’ in place of the Latin non obstante veredicto. See, eg, Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421; King v Amaca Pty Ltd [2011] VSC 422.

The plaintiff’s application was made pursuant to leave which was reserved on 12 June 2019 at the conclusion of closing submissions.[2] The plaintiff’s counsel did not apply for leave at the close of the defendant’s case and so is technically barred from bringing this application for reasons of procedural fairness as explained by the Court of Appeal in Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd.[3] The essential point is that, unless a party reserves this right prior to the close of evidence, their opponent will not be on notice and so may be precluded from making an application, should they wish to do so, to reopen their case to adduce further evidence. Here, as there was no prejudice to the defendant, I exercised my discretion to grant the plaintiff leave, despite this technical deficiency, and to rule on the application on its merits.
[2]Transcript of Proceedings, Micheli v Khoushaba (Supreme Court of Victoria, Zammit J, 28 May 2019–13 June 2019) 915.4–5 (‘T’).
[3][1981] VR 421, 441 [35] (McGarvie J, Young CJ and Kaye J agreeing).

After hearing the parties’ submissions, I ruled against the plaintiff’s application and informed the parties that I would deliver brief reasons. These are those reasons.

Grounds for the application

The plaintiff’s application was put on the following grounds:

(a) the jury rejected the evidence of Colin Bloomfield, an independent witness to the transport…

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 Micheli v Khoushaba

Details

AGLC: Micheli v Khoushaba [2019] VSC 401
Case: [2019] VSC 401
Decision Date: 13 June 2019

CaseChat Overview and Summary

Micheli v Khoushaba involved the plaintiff, Micheli, who sought judgment notwithstanding the jury verdict that found in their favour. The defendant, Khoushaba, argued that the jury's verdict should be set aside because the plaintiff was contributory negligent, a matter that was not found by the jury. The case was heard in the Supreme Court of Victoria.

The central legal issues were whether the evidence was sufficient to support a finding of contributory negligence and if the trial judge should set aside the jury's verdict. The court had to determine if the plaintiff's actions contributed to the harm they suffered, and if the jury's failure to consider this was a significant error.

The court considered that the jury had adequately deliberated on the evidence presented and that there was sufficient evidence to support their verdict. The court referred to the cases of Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd and King v Amaca Pty Ltd to underscore the principle that the court should not substitute its judgment for that of the jury unless there is a clear error in the jury's process. The court found no such error in this instance and concluded that the jury's verdict was justified. The application for judgment notwithstanding the verdict was, therefore, refused.

The court upheld the jury's verdict in favour of the plaintiff, Micheli, and dismissed the defendant's application to set it aside.

Orders