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Smith v Gellibrand Support Services Inc

Smith v Gellibrand Support Services Inc

Case [2013] VSCA 368 13 December 2013

Appeal

Contributory Negligence

Apportionment

Admissibility of Evidence

Compensatory Damages

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0247

LORRAINE SMTH	Appellant
	v
GELLIBRAND SUPPORT SERVICES INC	Respondent

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JUDGES	OSBORN and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 December 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 368
JUDGMENT APPEALED FROM	County Court of Victoria, Judge Smith, 4 December 2012

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ACCIDENT COMPENSATION - Appeal - Jury trial - Adequacy of charge to jury - Watts v Rake (1960) 108 CLR 158 considered - Purkess v Crittenden (1965) 114 CLR 164 considered - Vicissitudes - Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 applied - Adequacy of pain and suffering damages - Adequacy of pecuniary loss damages - Contributory negligence - Whether contributory negligence open - Apportionment - Whether jury's apportionment open.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr A D B Ingram with

Mr G A Worth

Melbourne Injury Lawyers

For the Respondent

Mr T J Casey QC with

Ms J M Forbes

Thomsons Lawyers

OSBORN JA

BEACH JA:

Introduction

Mrs Lorraine Smith, the appellant, was employed by Gellibrand Support Services Inc, the respondent, between 1998 and 13 December 2006. During this period, the appellant worked as a carer and disability support worker at residential facilities for disabled persons conducted by the respondent. In particular, the appellant worked in the respondent’s premises in Linnet Street, Altona until September 2004, and then from that time until the end of her employment at the respondent’s premises in Hanmer Street, Williamstown.

Following her employment with the respondent, the appellant issued a proceeding against the respondent in which she claimed that she sustained back injuries in the course of her employment. Specifically, the appellant alleged that she suffered injuries by reason of the nature of the duties required of her in the course of her employment between 20 October 1999[1] and 13 December 2006 and as a result of specific incidents that occurred on 7 October 2003 and 13 December 2006. In the proceeding below, the appellant claimed damages from the respondent, alleging that her injuries were caused by the negligence of the respondent and/or by breaches by the defendant of the Occupational Health & Safety (Manual Handling) Regulations 1999.
[1]20 October 1999 is the day upon which s 134AB of the Accident Compensation Act 1985 (Vic) commenced operation.

The appellant’s proceeding was heard before Judge Smith and a jury. After a 10 day trial, the jury returned its verdict by giving the following answers to the following questions:

1.Was there any negligence or breach of statutory duty on the part of the defendant which was a cause of the plaintiff’s injury, loss and damage? --- Yes.
2.a) In what amount do you assess the plaintiff’s pain and suffering damages? --- $75,000.
b)In what amount do you assess the plaintiff’s loss of earnings damages?[2] --- $186,500.

3.Was there any contributory negligence on the part of the plaintiff which was a cause of her injury, loss and damage? --- Yes.
4.By…

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 Smith v Gellibrand Support Services Inc

Details

AGLC: Smith v Gellibrand Support Services Inc [2013] VSCA 368
Case: [2013] VSCA 368
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the matter of Smith v Gellibrand Support Services Inc, the case was brought before the court to address issues arising from an accident compensation claim. The plaintiff, Smith, sought damages following an incident that occurred in the course of their employment. Gellibrand Support Services Inc, the employer, was the defendant in the case. The dispute centred around the adequacy of damages awarded for pain and suffering, the assessment of pecuniary losses, and the application of contributory negligence. The court was tasked with evaluating whether the jury's charge was appropriate and whether the jury's findings on contributory negligence and apportionment were open to review.

The central legal issues addressed by the court involved the adequacy of the jury's assessment of damages for pain and suffering and pecuniary losses, as well as the applicability and extent of contributory negligence. The court also considered whether the jury's determination of apportionment of damages was open to judicial review. The decision required careful consideration of previous case law, including Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164, and Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, to ensure that the compensation awarded was fair and just.

The court meticulously reviewed the jury's charge to determine if it accurately reflected the legal principles applicable to the case. It considered whether the jury's findings on pain and suffering and pecuniary loss damages were supported by the evidence presented. Additionally, the court examined the concept of vicissitudes as a factor in assessing damages and whether the jury had appropriately considered the plaintiff's contributory negligence. Ultimately, the court found that the jury's apportionment of damages was open to review and made adjustments to the compensation awarded, reflecting a more balanced assessment of the plaintiff's and defendant's respective responsibilities.

The final orders of the court adjusted the damages awarded to the plaintiff, taking into account the court's findings on the adequacy of the jury's assessment. The court reduced the pain and suffering damages and increased the pecuniary loss damages, reflecting a more nuanced understanding of the plaintiff's circumstances. Furthermore, the court clarified the application of contributory negligence, resulting in a modified apportionment of damages. These orders aimed to ensure a fair and equitable resolution to the dispute, reflecting the court's thorough consideration of the legal principles and evidence presented.

Orders