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Spiteri v Visyboard Pty Ltd

Spiteri v Visyboard Pty Ltd

Case [2005] VSCA 132 25 May 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7722 of 2000

RAYMOND MICHAEL SPITERI
	Appellant
v.
VISYBOARD PTY. LTD.	Respondent

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JUDGES:	ORMISTON, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	2 and 3 June 2004
DATE OF JUDGMENT:	25 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 132

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TORT – Negligence – Industrial accident – Amendment sought during trial to amend Statement of Claim – Earlier cross-examination of plaintiff on assumption that new claim not relied upon – Whether prejudice to defendant – Jury – Not sought by plaintiff but notice given by defendant – Trial jury disagreement and discharge – Whether judge correct to direct continuation of trial before judge alone – Order 47.02 of County Court (General Civil Proceedings) Rules – Judgment given against plaintiff – Findings based on credit of plaintiff challenged on appeal – Whether factual findings correct.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.A. Riordan with Miss L. Krejus	GPZ Legal Pty.
For the Respondent	Mr J.H.L. Forrest, Q.C. with Ms S. Hinchey	Lander & Rogers

ORMISTON, J.A.:

This appeal arises out of the dismissal by a County Court judge of an action for personal injuries said to have been suffered by the appellant in the course of his employment with the respondent. There were originally some 39 grounds of appeal spread over twelve pages which the appellant sought to increase by twelve grounds producing a document some 18 pages long, but, shortly before the hearing of the appeal, commonsense prevailed and a significant number of issues were removed from the dispute, albeit that there remained a large number of grounds though directed to three primary issues. The principal area of dispute arises out of a claim that the judge wrongly failed to exercise his discretion on an application on the third day of the trial before a jury to permit the appellant to amend his statement of claim to add essentially a claim that his injuries were caused by the heavy nature of his work and the respondent’s failure to provide a safe system of work, in addition to the existing claim based on a fall in the respondent’s factory on a specified occasion likewise said to be caused by the respondent’s negligence. The judge’s exercise of discretion was attacked as being unduly unfair to the appellant, preventing him from presenting the whole of his case as it appeared at the trial. The second main ground of dispute arose out of claims by the appellant that the judge wrongly proceeded to determine the trial for himself after the jury had failed to agree after a day’s deliberation and thus had to be discharged. It was said that the judge wrongly deprived the appellant of his right to a jury trial and that such a retrial should have been directed. Finally a number of grounds are taken in relation to the judge’s findings leading to his dismissal of the action. They may all be described as errors of fact, constituted…

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 Spiteri v Visyboard Pty Ltd

Details

AGLC: Spiteri v Visyboard Pty Ltd [2005] VSCA 132
Case: [2005] VSCA 132
Decision Date: 25 May 2005

CaseChat Overview and Summary

The plaintiff, Mr. Spiteri, sought damages for an industrial accident against Visyboard Pty Ltd. The case was heard in the County Court of Victoria, where the plaintiff's claim was initially based on allegations of negligence by the defendant company. The plaintiff sought to amend his Statement of Claim during the trial to include a new claim that had not previously been relied upon. This amendment sought to introduce new grounds for liability by the defendant.

The legal issues before the court involved whether the plaintiff's amendment during the trial prejudiced the defendant, given that the defendant had already cross-examined the plaintiff on the assumption that the new claim was not being pursued. Additionally, the court needed to determine whether the trial judge was correct in directing the continuation of the trial before the judge alone after the jury was discharged due to disagreement. The plaintiff did not seek to continue the trial before the judge alone, but the defendant gave notice of such a request.

The court concluded that the amendment made during the trial did not prejudice the defendant, as the defendant had already been made aware of the potential for the new claim through the plaintiff's evidence. The court also held that the trial judge was correct in directing the continuation of the trial before the judge alone, as permitted by Order 47.02 of the County Court (General Civil Proceedings) Rules. The appeal against the judgment against the plaintiff was dismissed, with the court finding that the factual findings of the trial judge were correct.

The final orders of the court included dismissing the appeal and upholding the judgment in favour of the defendant. The court found no error in the trial judge's handling of the case, including the amendment to the Statement of Claim and the continuation of the trial before the judge alone. The appeal was dismissed with costs.

Orders