Moore v Scolaro's Concrete Constructions Pty Ltd - [2004] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4130 of 1997

GREGORY MOORE and DAVID RICHARD SPREADBOROUGH
	Appellants
v.
SCOLARO'S CONCRETE CONSTRUCTIONS PTY. LTD. (IN LIQUIDATION) & ORS	Respondents

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and DODDS-STREETON, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27-28 April 2004 and 25 June 2004
DATE OF JUDGMENT:	1 September 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 152

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Negligence – Personal injuries – Successful claim by plaintiff -Apportionment of responsibility between defendants – Whether numerous defendants may be grouped – Respective roles of culpability and causation – Whether allocation of 50% of responsibility to appellants vitiated by specific error or manifestly excessive – Whether apportionment should be remitted to Trial Division - Wrongs Act 1958, s.24(2) – Corporations Act 2001, s.471B.

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(i)

APPEARANCES:

Counsel

Solicitors

For the Appellants

For the First Respondent

For the Second Respondent

Mr D.E. Curtain, Q.C.
Mr F.D. Saccardo
Mr K. Mueller

No appearance

Mr R.H. Gillies, Q.C.
Mr B.M. Griffin

Ligeti Partners
Dibbs Barker Gosling

Deacons

For the Third Respondent

For the Fourth Respondent

For the Fifth Respondent

For the Sixth Respondent

For the Eighth Respondent

Mr C.J. Blanden

Mr M.T. Settle

Mr M. Thompson

Mr G.G. McArthur, S.C.
Ms R. Orr

Mr P.J. Riordan, S.C.
Mr C. Winneke

Monahan & Rowell

Minter Ellison

Moray & Agnew

Phillips Fox

Blake Dawson Waldron

(ii)

CALLAWAY, J.A.:

On 25^th May 2001 Eames, J. concluded a long trial arising out of the crippling injuries suffered by Cameron Toomey when he fell over a balustrade in the early hours of Saturday 2^nd March 1996 and landed on his head on concrete stairs below. His Honour delivered his principal reasons for judgment on 17^th August 2001[1]. Subsequent reasons for judgment dealt with other discrete aspects of the case. One of them led to the unsuccessful appeal to this Court in Manren Ltd. v. Royal & Sun Alliance Insurance Australia Ltd.[2] As I explained in my judgment in that case, Mr Toomey, whom I shall call “the plaintiff”, sued ten defendants in the Supreme Court but his claim against the fifth defendant was compromised. Manren Ltd. is the present name of the tenth defendant, formerly called Hudson Conway Management Ltd.
[1]Toomey v. Scolaro’s Concrete Constructions Pty. Ltd. [2001] VSC 279 (“the principal reasons”).
[2][2003] VSCA 59.

The facts are carefully set out in the principal reasons delivered on 17^th August 2001 and the non-compliance of the balustrade with the Building Code is explained. I gratefully adopt that exposition, which I cannot improve and do not repeat.[3]
[3]Cf. Tenth Dancote Pty. Ltd. v. Pyramid Building Society (unreported, Court of Appeal, 7^th May 1997) in the second paragraph of the President’s reasons, the first paragraph of my reasons and the first paragraph of the reasons of Hedigan, A.J.A.

On 29^th August 2001 judgment was entered for the plaintiff against the first to fourth and sixth to tenth defendants in the sum of $2,248,259 together with damages in…

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: [2004] VSCA 152
Decision Date: 1 September 2004

CaseChat Overview and Summary

The case of Moore v Scolaro's Concrete Constructions Pty Ltd arose from an incident in which the plaintiff sustained personal injuries. The plaintiff, Moore, brought proceedings against multiple defendants, including Scolaro's Concrete Constructions Pty Ltd, seeking damages for the injuries sustained. The court had to determine the liability and apportion the responsibility among the defendants for the plaintiff's injuries. The dispute centred on the allocation of responsibility among the defendants, whether the defendants could be grouped for the purposes of apportionment, and whether the apportionment of liability should be remitted to the Trial Division.

The court was required to decide the roles of culpability and causation in the context of apportioning responsibility among multiple defendants. A significant issue was whether the defendants could be grouped for the purposes of apportionment and whether it was appropriate to allocate 50% of the responsibility to the appellants. Additionally, the court had to consider whether the apportionment was vitiated by a specific error or was manifestly excessive, warranting a remittal to the Trial Division for re-assessment. Statutory provisions under the Wrongs Act 1958 and the Corporations Act 2001 also played a role in the court's analysis.

The court held that the allocation of 50% responsibility to the appellants was not vitiated by any specific error nor was it manifestly excessive. The court found no basis to remit the matter back to the Trial Division for reassessment of the apportionment. The reasoning centred on the careful consideration of the evidence presented regarding the roles of culpability and causation. The court concluded that the apportionment was fair and just, taking into account the statutory frameworks applicable under the Wrongs Act 1958 and the Corporations Act 2001. The court's decision affirmed the original apportionment of responsibility.

The court made no orders to remit the matter back to the Trial Division for reassessment of the apportionment. The original judgment was upheld, with the apportionment of responsibility remaining as determined by the Trial Division. The court's decision underscored the importance of carefully balancing culpability and causation when apportioning responsibility among multiple defendants in personal injury cases.

Orders