Petrovska v Australian Way Pty Ltd (Ruling No 2)
[2018] VCC 567
•2 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-06307
| GORICA (JENNY) PETROVSKA | Plaintiff |
| v | |
| AUSTRALIAN WAY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 16, 17, 18, 19, 20,23, 24 and 26 April 2018 | |
DATE OF RULING: | 2 May 2018 | |
CASE MAY BE CITED AS: | Petrovska v Australian Way Pty Ltd (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 567 | |
RULING
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Subject: CIVIL JURY TRIAL
Catchwords: Jury returned a verdict of “no” to the question as to whether there was negligence on the part of the defendant which was a cause of injury, in industrial injury trial – leave reserved non obstante veredicto – whether there was no evidence upon which the jury could return the verdict – whether the jury verdict should be set aside
Legislation Cited: County Court Act 1958
Cases Cited:Aycicek v Flowline Industries Pty Ltd(ACN 004 871 489) [2018] VCC 477; King v Amaca Pty Ltd [2011] VSC 422; Naxakis v Western General Hospital [1999] HCA 22
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R K J Meldrum QC with Mr P A Czarnota | John Dellios & Associates Pty Ltd |
| For the Defendant | Mr D E Curtain QC with Mr C S O’Sullivan | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 At the conclusion of evidence and addresses in this industrial jury trial, Mr Meldrum, counsel for the plaintiff, sought and was granted leave, to move for judgment for the plaintiff non obstante veredicto in the event the jury returned a verdict of “no” to the question as to liability. On 26 April 2018, in answer to the question “Was there negligence on the part of the defendant which was a cause of the plaintiff’s injury, loss and damage?”, the jury, by a majority of five of six, answered “No”.
2 The proceeding concerned a claim by Ms Petrovska for pain and suffering and pecuniary loss damages arising out of an incident in the course of her employment in July 2010. A co-employee, Ms Janet Fowler, was descending a step ladder at the defendant’s retail premises at Tullamarine Airport, with the plaintiff standing near the base of the ladder. Ms Fowler missed a step and fell onto Ms Petrovska, causing her to fall to the concrete floor. She said she felt a twinge which, over time, developed into a significant lower-back condition, with referred pain down the left leg. Eventually, she came to lumbar fusion surgery at the L4-5 level.
The evidence and the issues
What happened in the fall
3 Ms Fowler said that at the time of the incident, she was cleaning shelves using a stepladder.[1] She was getting down a “moon vase” in order to dust shelves which held stock.[2] She placed the vase on a counter.[3] At the time, she was on the second step of the ladder, which had three steps.[4] She was asked:
[1]Transcript (“T”) 68, Lines (“L”) 1
[2]T68
[3]T69, L11
[4]T69, L15
Q: “How did you come to fall, what happened?---
A:I missed the step. I stepped back and missed it and fell backwards.
Q:And when you stepped back, where were each of your hands? Did you have either of them on the ladder or both of them?---
A: No.
Q And why not?---
A: Because there was nothing to hold on to.”[5]
[5]T69, L26 – T70, L3
4 Ms Fowler said she had used the ladder regularly, once or twice per week. She was not given any direction as to its use.
5 She was asked:
Q: “When you lost your footing, what happened?---
A:I fell back and Jenny saw that I was going to fall and I fell on her we rolled off each other.
Q: Did each of you end up on the floor?---
A: Yes, laughing.
Q:And laughing out of amusement or embarrassment or what was the laughter about?---
A: Probably both.”[6]
[6]T71, L16-21
6 Further:
Q:“What use do you make of those side rails when you go up or come down?---
A:You hold onto them to get up or get down.
Q:Had there been a ladder with such side rails, how would you have come down?---
A:By the side rails.
Q:Why didn’t you hold onto the steps or the frame of the ladder?---
A:The ladder would have come down on top of me.”[7]
[7]T73, L26-32
7 In cross-examination, Ms Fowler said that she had used the ladder from when she commenced work in 2008 and had not had any trouble with it until she fell.[8] She was then asked:
[8]T77, L12
Q:“If I could just ask you this, when you fell off it, did you just miss your step?---
A:I think so, yes.
Q: It wasn't any fault of the ladder, was it?---
A: No, I think it was just me being clumsy.”[9]
[9]T77, L14-17
8 The plaintiff gave evidence as to what occurred. She said Ms Fowler was on a ladder, as depicted in exhibit “A”. She said Ms Fowler was up a ladder bringing down vases and plates.[10]
[10]T125, L13
9 She said she was standing on the side of the counter and Ms Fowler was handing plates and vases to her. As Ms Fowler was coming down the ladder, Ms Petrovska was on the left side.[11]
[11]T130, L10
“…
A:Yep, and she was coming down the step – the ladder and, um, I don't know what happened. It just happened so quickly.
Q:How close were you to the ladder? Were you right alongside of it or - - -?---
A: Yeah, I was right - - -
Q: - - - some distance apart?---
A: alongside her. I was probably, I don't know, a step away from her.
Q: Yes?---
A:And then I saw her come in and I ran around and I just went to grab her so she doesn't - - -
Q: Why did you run around?---
A:I just walked around, like, as she was falling, because I was on the side of her.
Q: So did you see her start to fall?---
A: I saw her starting to fall, yes.
Q: And just explain to the jury what you did?---
A:I just went around and I went to grab her so she doesn't fall on the ground. I was scared that she might break her head.
Q: And then what happened after that?---
A:Um, well, she fell on top of me, and my left leg went under me, and Jan was right on top of me … .”[12]
[12]T130, L13-31
10 A number of the witnesses called, including the plaintiff, co-employees Ms Marra and Ms Ibrahim, all said the ladder used in the store was as depicted in exhibit “A”. Ms Fowler said a different ladder was used. At the end of the day, little turns upon whether it was the ladder depicted in exhibit “A” or some other similar ladder that was used. The plaintiff tendered photographs of different ladders[13] which had side rails to hold onto when ascending or descending. It was conceded that such ladders were available for use at the time of the incident.
[13]Exhibit “D”
11 Ms Marra, the defendant’s occupational health and safety “checklist girl”, accepted that ladders are safer if there were handrails.[14]
[14]T517, L11
The Plaintiff’s pre-existing low back and psychological conditions
12 The plaintiff was cross-examined extensively about the nature and extent of complaints of pain and restriction, and medical treatment in relation to a pre-existing low back condition. She was also asked about pre-existing psychological issues.
13 In relation to her low back, Ms Petrovska admitted:
· she attended her general practitioner for low back pain in 1994[15]
[15]T204
· she attended her general practitioner on a number of occasions in 1997 and 1998 with low back pain as a result of a fall
· she was seeing her general practitioner every few weeks throughout 1998 with back pain
· she continued to see him throughout 1999 with back pain
· she consulted an orthopaedic surgeon in 1999 with back pain and pain radiating into her left leg
· in 2000, she consulted her general practitioner complaining of back and left leg pain such that she could not sit or stand for long or walk for more than half an hour and had problems with household chores
· in July 2000, she had an MRI scan of her lower spine which revealed bulging in the discs at the lower level
· in 2003, she had ongoing pain in her left leg
· she complained to her general practitioner of back pain in June 2004
· she made a claim for compensation in relation to that back pain
· in June 2005, she was prescribed Tramal for back pain
· in 2009, she saw her general practitioner complaining of back pain and gave a history of sciatica[16]
· she accepted that she had back pain up until at least a year before the subject incident.
[16]T212
14 Ms Petrovska also accepted that she had a range of pre-existing psychological issues related to difficulties in her marriage. On two occasions in 2003 she took an overdose of medication and was admitted to the Emergency Department of the Sunshine Hospital. In September 2007, Ms Petrovska complained of being depressed, and with low self-esteem, to her general practitioner.[17]
[17]T210, L27
15 None of the consultant practitioners, either physical or psychological, who examined the plaintiff for the purposes of this trial, and few of the treating practitioners, received an accurate history of Ms Petrovska’s pre-existing conditions.
Causation
16 There was a significant issue in the trial as to whether, even accepting there was negligence on the part of the defendant (which it denied), any such negligence was causatively related to Ms Petrovska’s lower back and psychological conditions.
17 Despite undertaking a course which included a module about maintaining a safe workplace in February 2010, which she accepted required employees to write down any hazard identified, she made no reference to the ladder. She admitted she knew she had to report an injury.[18] It was not until more than twelve months after the incident that a formal report was made. Ms Petrovska gave various reasons for this including:
·she was concerned she may lose her job, or suffer reduced hours
·at the outset, she suffered only a twinge, which became worse over time
·she had made a claim to WorkCover before, and had a bad experience with that system.
[18]T227, L18
18 Further, despite her claimed increasing back and left leg pain, she did not tell any doctor of the incident and the pain until September 2011. Over that period, she sought treatment from her general practitioner on eight occasions and did not mention the incident. She told a number of consultant practitioners that she had reported the incident and the injury shortly afterwards.
19 She told her husband of the incident, but did not tell him that she suffered any injury. Further, she remained working until September 2011, working approximately the same hours and with the same duties.
The law and the authorities
20 Section 70 of the County Court Act 1958 provides that where a jury has given a verdict, judgment must be entered in accordance with that verdict. Section 70(2) and (3) provide:
“(2)Despite subsection (1), the judge in a proceeding before a jury may, before the jury has given a verdict, grant leave to a party to apply for judgment other than in accordance with the verdict of the jury.
(3) If leave is granted under subsection (2), judgment may be entered other than in accordance with the verdict of the jury.”
21 The applicable law is conveniently set out in Aycicek v Flowline Industries Pty Ltd (ACN 004 871 489),[19] where his Honour Judge Brookes referred to the principles established by Kyrou J in King v Amaca Pty Ltd.[20] Kyrou J said:
[19][2018] VCC 477
[20][2011] VSC 422
“[7] In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
[8]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.
[9]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.
[10] A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.”
(Footnotes omitted.)
22 His Honour Judge Brookes went on to refer to the judgment of the High Court in Naxakis v Western General Hospital. I respectfully adopt those principles.[21]
[21][1999] HCA 22 at paragraphs [16], [39]-[41], [66]
23 It is clear from authorities that the party carrying the onus in the application, in this case the plaintiff, must prove that there was no evidence upon which the jury, properly charged, could bring in a verdict that there was no negligence on the part of the defendant. Further, if there was evidence upon which the jury could find for the defendant on the first question, then it is not to the point that there may be other, or contradictory, evidence in support of the plaintiff’s case. The test is whether there is evidence upon which a jury could reasonably conclude there was no negligence on the part of the defendant.
Was there negligence? – the issues
24 On behalf of the plaintiff, the case was put to the jury on the basis that there was direct negligence by the defendant in failing to provide a safe system of work and safe plant and equipment. The Statement of Claim pleaded[22] the defendant was also vicariously liable for the actions of Ms Fowler, which amounted to negligence. When I raised this matter with counsel for the plaintiff,[23] he indicated that the plaintiff’s case was not only in respect of the direct negligence of the defendant, but also that it was vicariously responsible for the actions of Ms Fowler. However, the issue was not the subject of any evidence, nor were any of the plaintiff’s final submissions directed to it.
[22]Paragraph [9] of the Statement of Claim dated 12 December 2014
[23]T84
25 The issues canvassed on behalf of the plaintiff in final submissions to the jury may be summarised as follows:
·there was no training by the defendant of any of its employees in relation to the use of the ladders which carry a well-known risk of injury from falling
·there was no occupational health and safety assessment of this particular ladder
·there was no instruction to its employees in its use
·the ladder in question did not have handrails, which would have assisted Ms Fowler climb and descend the ladder
·had the ladder had hand rails, it would have been significantly safer to use
·it was an “inescapable inference” that had the ladder had handrails, the incident would not have occurred
·there were other ladders available (as depicted in exhibit “D”), which had handrails and other points upon which to grip, which were significantly safer than the one used.
26 On behalf of the defendant, the issues as to liability were as follows:
·despite this ladder being used by many employees over many years, there had never been a single complaint about its use, nor any slipping or falling incident
·it was not a question of whether there were safer ladders available, this ladder was perfectly appropriate for the task
·there was no evidence that there was any defect in the ladder
·there was no evidence that the state of the ladder played any part in Ms Fowler’s misstep.
Causation – the issues
27 As to the causative relationship between the plaintiff’s psychological and physical injuries, and the incident of July 2010, the plaintiff contended:
·even although there was little complaint to doctors for a considerable period after the incident, that was explicable on the basis of the reasons given by the plaintiff, including:
§she did not want her employment or hours affected
§the injury started with a twinge and developed over time
§the plaintiff did not want to enter the WorkCover system
·there was evidence from a number of the practitioners that they had encountered patients with similar concerns and it was not unusual, in the circumstances, for there to be a late complaint
·the failure to file an incident report and make a claim was explained by the evidence of the plaintiff that there had been an earlier verbal report.
28 The defendant contended:
·there was no report to doctors of the incident and the injury until September 2011
·there was no report of the incident to the plaintiff’s husband
·there was no claim form filed until a significantly later time, despite the plaintiff knowing what had to be filed
·The plaintiff’s current lower back condition could be well explained by the progress of her underlying degenerative disorder
·the plaintiff’s credibility was significantly in issue given the failure to disclose pre-existing physical and psychological problems to many doctors.
Analysis
29 There was, in my view, ample evidence before the jury upon which they could determine that there was no direct negligence on the part of the defendant, and further, even if there was, there was no causative relationship between the incident and injury.
30 Given the extensive use of the ladder in question without cause for complaint, or any prior incident, it was open to the jury to accept that the ladder was perfectly appropriate for the task in hand, even if there were ladders available, which had handrails and, arguably, which were safer.
31 Upon the evidence of Ms Fowler, the incident occurred because she missed her step while descending a ladder and it was her clumsiness, rather than any fault of the ladder, which was the cause of the fall.
32 Mr Meldrum argued that it was an “inescapable inference” that, had the ladder had handrails to assist Ms Fowler ascending or descending the ladder, then the incident would not have occurred. I do not accept that that inference was inescapable. It is one thing to say that the descent would have been safer had there been a ladder with handrails, it is another thing to conclude that, had there been handrails, the incident would not have occurred. There was no direct evidence that had a ladder with handrails been used, that it would have prevented the fall.
33 Further, there was evidence open to the jury to conclude that there was no causative relationship between the incident and injury. It was remarkable that despite attending a general practitioner on many occasions, the plaintiff made no complaint of the incident or injury which followed until some fourteen months after the event. It was possible that the jury might accept the explanation of the plaintiff as to why she did not report the matter or tell her doctors about it, or even her husband, but it was equally open to the jury to conclude that the reason there was no report was because no injury occurred. The development of what is undoubtedly a serious back condition could, at least radiologically, be explained by the development of her underlying degenerative condition.[24] The discovery of an accurate medical history made the link between the incident and injury much less likely.[25]
[24]Evidence of Mr Brownbill – T567, L28
[25]T567, L6
34 All of this was on a background of the plaintiff having significant prior complaints of lower back and left leg problems, which she did not fully disclose to many of the medical practitioners. It was open to the jury to have significant reservations as to the plaintiff’s credit or even to reject her evidence on the relevant issues completely.
Conclusion
35 There was, in my view, ample evidence open to the jury to find there was no direct negligence on the part of the defendant; alternatively, that even if there was negligence, there was no injury to the plaintiff which arose as a result of the incident. It is only in exceptional circumstances that a jury verdict ought be set aside. Those circumstances do not exist in the present proceeding.
36 The application to set aside the jury verdict should fail. Judgment should be entered in accordance with the jury’s verdict.
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