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…
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- AGLC
- Smith v Gellibrand Support Services Inc [2013] VSCA 368
- Case
- [2013] VSCA 368
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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