Pasqualotto v Pasqualotto (No 2) - [2013] VSC 608

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2010 03305

ADAM PASQUALOTTO	Plaintiff
v
R AND L PASQUALOTTO	Defendants

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 NOVEMBER 2013
DATE OF JUDGMENT:	8 NOVEMBER 2013
CASE MAY BE CITED AS:	PASQUALOTTO v PASQUALOTTO (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 608

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PRACTICE AND PROCEDURE – trial by jury - plaintiff seriously injured during course of employment with defendants – claim founded on tort and breach of statutory duty for damages - verdict of jury set aside in part on appeal – question of contributory negligence remitted for rehearing – whether rehearing should be conducted without a jury – whether in the interests of the administration of justice – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley QC with Mr A Ingram	Slater & Gordon Lawyers
For the Defendants	Mr P Jens with Mr J Goetz	Wisewould Mahony Lawyers

HIS HONOUR:

The plaintiff makes application under r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for a direction for trial by a judge alone rather than with a jury. The defendants oppose the application.

The plaintiff is the adult son of the defendants. After being seriously injured during the course of his employment with them at the family farm, he issued proceedings in this court for damages.

The proceeding was founded on tort and breach of statutory duty and commenced by a writ which signified that trial with a jury was required. The defendants denied any liability and in the alternative pleaded contributory negligence. They gave notice that they too required trial with a jury. Pursuant to r 47.02(1)(a) and (3), the trial therefore had to be conducted with a jury unless the court ordered otherwise. The court made no such order and the trial was conducted with a jury.

The jury found that the defendants had not been negligent but had breached their statutory duty towards the plaintiff. The jury assessed damages in a substantial amount on that basis. It found that the plaintiff had contributed to the cause of his injuries in the proportion of 70 per centum and returned a verdict accordingly. The trial judge refused the plaintiff’s application for judgment despite the jury’s verdict.[1]
[1]Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011) (Kyrou J).

The plaintiff appealed to the Court of Appeal against the finding of the jury that the defendants had not been negligent and that the plaintiff had committed contributory negligence. The appeal was substantially successful. The Court of Appeal set aside the verdict of the jury on the first of these issues and determined that the defendants had been negligent.[2] It remitted for hearing and determination two questions: whether there was contributory negligence on the part of the plaintiff and, if so, by what percentage damages should thereby be reduced. These are the…

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 Pasqualotto v Pasqualotto (No 2)

Details

AGLC: Pasqualotto v Pasqualotto (No 2) [2013] VSC 608
Case: [2013] VSC 608
Decision Date: 8 NOVEMBER 2013

CaseChat Overview and Summary

Pasqualotto v Pasqualotto (No 2) was an appeal by the plaintiff against the setting aside of part of a jury's verdict that had found him 50% contributorily negligent in his personal injury action against his employers. The dispute centred around the plaintiff's serious injuries sustained during his employment, with the claim grounded in tort and breach of statutory duty. The matter was heard in the Supreme Court of Victoria, which was asked to determine whether the rehearing of the contributory negligence issue should occur with or without a jury.

The court was tasked with deciding two primary legal issues: whether the rehearing of the contributory negligence issue should be conducted without a jury, and whether such a decision would be in the interests of the administration of justice. The appeal was brought under the Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02(3), which allows for the rehearing of issues determined by a jury to be set aside on appeal.

In delivering the judgment, the court held that a rehearing without a jury would not be in the interests of the administration of justice. The court considered that the jury had been properly directed on the law applicable to contributory negligence and that the verdict of the jury had been set aside on appeal because of errors in the summing up of the trial judge, rather than because of any deficiency in the jury's decision-making process. The court further noted that there was no basis for concluding that a rehearing without a jury would necessarily lead to a more efficient or effective outcome. Therefore, the appeal was dismissed.

No further orders were made by the court. The matter was remitted to the trial court for a rehearing of the contributory negligence issue before a jury.

Orders