Puleio v Olam Orchards Australia Pty Ltd
[2017] VSC 658
•27 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 03931
| SANDRA PULEIO | Plaintiff |
| v | |
| OLAM ORCHARDS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2017 |
DATE OF RULING: | 27 October 2017 |
CASE MAY BE CITED AS: | Puleio v Olam Orchards Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 658 |
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PRACTICE AND PROCEDURE – Mode of trial – Trial by jury or judge alone – Supreme Court (General Civil Procedure) Rules 2015 r 47.02 – Claim in negligence – Deceased worked on farm in Wemen in Victoria – Tractor allegedly rolled on deceased – Plaintiff deceased’s wife – Duty of care question arising from employment – Duty issue surrounding consumption of alcohol – Complexity of fact and legal issues – Potential for novel duty of care – Order directing trial without jury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr M Seelig | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Mr J Plunkett | Solicitor to the Transport Accident Commission |
HER HONOUR:
This proceeding is listed for hearing in the Mildura circuit commencing on 30 October 2017. The circuit must be completed by 17 November 2017.
The defendant has given notice pursuant to r 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that it requires a trial by jury. The plaintiff now seeks to dispense with this mode of trial and to have this proceeding determined by a judge sitting.
The parties have estimated that the case will take approximately 10 days to be heard before a jury. Monday 6 November and Tuesday 7 November 2017 are not sitting days in Mildura by reason of the Melbourne Cup public holiday. The Supreme Court has been allocated a court room in Mildura from 30 October to 17 November 2017. A second proceeding is listed in the circuit to be heard upon the completion of this case, and it has an estimate of four to five days. That proceeding is an expedited trial, which concerns amongst other things a plaintiff with a shortened life expectancy.
The plaintiff sought leave to file and serve a further amended statement of claim on 26 October 2017. That application was not opposed and leave was granted.
The nature of the claim
The defendant, Olam Orchards Australia Pty Ltd, employed Frank Puleio (‘the deceased’) to conduct work at an almond farm (‘the farm’) located at Wemen in Victoria. It is not disputed that on 27 August 2013 the deceased was working on the farm and was using a tractor connected by a power take off. While the deceased was working near the slasher on the farm, the slasher rolled onto him and caused traumatic injuries which resulted in his death. The plaintiff was at the time the deceased’s wife.
In dispute in this case are the circumstances surrounding the deceased’s death, liability (including ‘duty, breach and causation’)[1] and whether there was a breach of statutory duty of the defendant that was a cause of the deceased’s death.
[1]Plaintiff’s memorandum dated 13 July 2017.
The plaintiff pleads at paragraph 4A of the further amended statement of claim:
The defendant knowing that the plaintiff was the wife of the deceased:
(a)knew that in the event of severe injury or death being suffered by the deceased it was foreseeable that the plaintiff would suffer an injury;
(b)owed a duty to the plaintiff to exercise reasonable care to conduct its operations in such a manner that the deceased would not in the course of his employment suffer severe injury or death.
It was submitted by senior Counsel for the plaintiff that the duty pleaded in paragraph 4A of the further amended statement of claim was a duty owed directly to the plaintiff rather than the duty that might be owed at common law to the deceased and, in turn, to the plaintiff as per a ‘derivative action’ under s 16 of the Wrongs Act 1958 (Vic) for a Part 3 dependency claim.[2]
[2]Plaintiff’s written submissions dated 25 October 2017.
The defendant pleads in its amended defence at paragraph nine:
9...Further and/or in the alternative at or about the time of the happening of the incident the deceased has a blood alcohol reading of 0.18g/100ml or more and as such the defendant owed no duty to the deceased in the circumstances.
10...Further or in the alternative the deceased was operating the tractor/slasher:
(a)without the knowledge, consent or permission of the defendant;
(b)as a product of his own and outside the scope of his employment;
(c)contrary to the defendant’s work system referred to in its answers to the plaintiff’s interrogatory;
(d)with a blood alcohol reading of 0.18g/100ml or more - such as to negate any duty owed by the defendant to the deceased.
11.Further or in the alternative the deceased voluntarily assumed the risk, the materialisation of which resulted in his death, which was an obvious risk as defined by s 53 of the Wrongs Act 1956 (Vic).
12 Further or in the alternative the deceased was consuming alcohol:
(a) outside the hours of his employment;
(b) by reason of his own free will;
(c) beyond the control of his employer;
(d) in excessive quantities;
(e)with full knowledge of the consequences of doing so – such as to negate any duty owed by the defendant to the deceased…
The Court was informed by senior Counsel for the defendant that the defendant will amend its defence so as to abandon paragraph 11 and that the matters raised in paragraph 11 will be factual issues going to the scope and extent of the duty of care owed to the deceased.
There are currently 51 particulars of negligence pleaded at paragraph five of the further amended statement of claim. The majority of the particulars can be broadly described as particulars relating to the provision of safe equipment, a safe system of work and safe premises. In addition, there are particulars of breach relating to the consumption of alcohol issues as follows:
5(q)Allowing the deceased to reside at the farm overnight in the absence of any or any adequate:
(i) rules;
(ii) protocols and procedures;
(iii) supervision;
(r)Allowing and/or condoning the consumption of alcohol at the premises;
(s)allowing and/or condoning a culture of alcohol consumption at the premises; and
(t)failure to have any or any adequate breath testing or other means of monitoring worker’s consumptions of alcohol….
Particulars of breach and negligence are questions of fact, they inform the duty that is said to be owed to the deceased by the defendant employer. In relation to the first group of particulars, they relate to the defendant’s duty to take reasonable care for the safety of its employees. In relation to the consumption of alcohol particulars, senior Counsel for the plaintiff confirmed that the duty alleged is whether, in all the circumstances, the defendant owed the deceased a duty to take reasonable steps to avoid harm from reasonably foreseeable risks. It will be necessary for the plaintiff to identify with some specificity the nature of the risks that ought to have been foreseen.
Duty of care issues
Senior Counsel for both parties agreed that this case will turn on the issue of what duty of care was owed to the plaintiff, the scope and content of the duty of care owed by the defendant to the deceased and, in particular, how it extended to the consumption of alcohol. The defendant did not, and could not, dispute that it owed a duty to take reasonable care for the deceased’s safety in the workplace.
The difficulty at the moment is that the duty issue surrounding the consumption of alcohol is not clear and may amount to a new category of duty of care. It is likely that at some point in this trial the defendant will agitate that a duty of care in relation to the consumption of alcohol was not owed to the plaintiff. The issue of whether there is a particular duty of care owed to a plaintiff is a matter of law and is not one for the jury. However, in this case, establishing the precise scope and content of any duty of care, and whether it existed, cannot be determined until all the relevant evidence is put before the Court.
There is a real risk that the Court will be required to determine the issue of duty of care in the course of this trial. This of itself may not be a consideration that justifies dispensing with the jury. It is possible that there will be evidence about the consumption of alcohol and what, if any, duty of care the defendant owed to the deceased. In this regard, the troubling aspect is that if the Court was to determine that no duty of care was owed by the defendant to the deceased in relation to the consumption of alcohol issue (however it is framed), it will not necessarily mean that the general duty of care to take reasonable care for the deceased’s safety (including issues of the provision of safe machinery, a safe system of work and so on) will not proceed.
In such circumstances, the jury will have to be charged in relation to what evidence it can have regard to, ensuring that no party is prejudiced by the jury hearing evidence that it may have to disregard. It will be extremely difficult to protect the parties from any potential prejudice flowing from certain pieces of evidence once the jury has heard that evidence.
Gleaning what I can from the pleadings, this is not a case comparable to previous cases dealing with duty of care and consumption of alcohol, such as Hardy v Mikropul Australia Pty Ltd.[3]
[3][2010] VSC 42 (J Forrest J).
Analysis
I am of the view that the legal issues in this case may raise the existence of a potentially novel duty of care. Such complex issues of law are matters that a jury emphatically cannot determine.
The duration of the trial could never of itself be a determining factor.[4]
[4]Darrell Lea (Vic) Pty Ltd v Union Assurances Society of Australia Ltd (1969) VR 401, 405 and Gunns Ltd v Marr (No 5) [2009] VSC 284 [9].
As I noted, this case is one of two cases listed in the Mildura circuit, sitting from 30 October 2017 to 17 November 2017. As presently advised, the Mildura court is unable to extend the sitting beyond 17 November 2017. The second case is currently listed to commence on 13 November 2017 on a four to five day estimate and concerns a plaintiff diagnosed with mesothelioma who is at risk of imminent death.
The parties have provided the Court with witness lists and, at this stage, the plaintiff intends to call a total of 20 witnesses and the defendant a total of 11 witnesses. The parties agree that, heard by a jury, this case will have an estimate of at least 10 days. Based on my experience, any jury trial with this number of witnesses, a complex factual matrix and potential legal issues, will exceed 10 days. Given the Melbourne Cup break, the Court is not sitting on 6 and 7 November 2017, which reduces the total number of sitting days in the circuit to 13. This, of course, does not allow for shorter days for travel to and from Mildura.
Regrettably, as this matter is listed in Mildura, we do not have the luxury of multiple court rooms and the breadth of resources as we would have in the Supreme Court sitting in Melbourne. It goes without saying that a trial before a judge alone can be dealt with greater efficiency and, if necessary, aspects of the case can be heard in Melbourne which cannot be done if a jury is empanelled to hear the case. I adopt the relevant principles in relation to the dispensing of a jury as set out by his Honour J Forrest J in Gunns Ltd v Marr (No 5).[5]
[5][2009] VSC 204 [9].
Conclusion
In conclusion, I agree with the plaintiff’s submissions that the present case is a complex one. The case involves legally sophisticated analysis determining the duty of care owed in relation to the consumption of alcohol and the scope and content of such a duty of care owed, the scope of which in Australia is by no means clear.
This factor, along with the resourcing issues and the duration of the trial, lead me to conclude that I should dispense with the jury. This is a step I take reluctantly as the defendant is entitled, as a right, to seek trial by jury.
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