Spotless Services Australia Ltd v Herbath, Diane & Feltex Australia P/L

In the case of Spotless Services Australia Ltd v Herbath, Diane & Feltex Australia P/L, the plaintiff, Spotless Services Australia Ltd, sought damages from two defendants, Diane Herbath and Feltex Australia P/L, following an incident that resulted in injury. The plaintiff alleged that the defendants were negligent, and the defendants raised a plea of contributory negligence. The dispute was heard and determined by a jury in the County Court of Victoria. The jury found in favour of the plaintiff against both defendants but also found the plaintiff to be contributorily negligent.

The primary legal issue before the court was whether the defendant employer, Feltex Australia P/L, could benefit from the finding of contributory negligence by the plaintiff, despite having abandoned their own plea of contributory negligence. Additionally, the court had to consider whether the plaintiff's recovery of costs from the defendant occupier, Diane Herbath, was hindered by the statutory provision that required each party to bear its own costs, as per section 134AB(28)(d) of the Accident Compensation Act 1985 (Vic).

The court examined the statutory framework and found that although the employer had abandoned their plea of contributory negligence, they were still entitled to benefit from the jury’s finding of contributory negligence by the plaintiff. This was because the employer had not abandoned their defence to the action but rather the plea of contributory negligence. As such, the employer could avail themselves of the reduced damages awarded to the plaintiff. The court also held that the plaintiff could recover costs from the defendant occupier, as the statutory provision requiring each party to bear its own costs did not prevent the plaintiff from obtaining such an order against the defendant occupier.

In conclusion, the court determined that the defendant employer could utilise the finding of contributory negligence by the plaintiff to reduce the damages awarded to the plaintiff. Additionally, the court found that the plaintiff was not prevented from obtaining an order for costs against the defendant occupier due to the statutory provision in question.