JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATES OF HEARING:	9-11, 14-18, 21-24 November 2011
DATE OF JUDGMENT:	8 December 2011
CASE MAY BE CITED AS:	Surmon v Herald & Weekly Times
MEDIUM NEUTRAL CITATION:	[2011] VSC 628

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NEGLIGENCE – Breach of statutory duty – Employer – Safe system of work – Plaintiff suffering rare condition – Underlying susceptibility – Injury reported to defendant – Whether defendant breached duty of care or statutory duties in responding to report of injury – Damages – Occupational Health and Safety (Manual Handling) Regulations 1999 regs 13, 14, 15 – Occupational Health and Safety Regulations 2007 reg 3.1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC and Mr M Walsh	Clark Toop & Taylor
For the Defendant	Mr R Stanley QC and Ms M Britbart	Minter Ellison

HIS HONOUR:

The plaintiff, Kim Surmon, claims damages for injuries, which she sustained in the course of her employment with the defendant, the Herald & Weekly Times, while performing duties as the finance librarian at the defendant’s Southbank premises between January 2003 and May 2009. The trial proceeded before a jury of six. However, after a period of deliberation exceeding two days, the jury was unable to reach a verdict on the issue of liability, notwithstanding that I had permitted the jury to return a majority verdict pursuant to s 47(2) of the Juries Act 2000. Accordingly, I discharged the jury without verdict.

After the discharge of the jury, Mr J Richards SC, who appeared with Mr M Walsh for the plaintiff, submitted that I should proceed to decide the case on the basis of the evidence which was presented before the jury. Mr R Stanley QC, who appeared with Ms M Britbart for the defendant, did not oppose that course. The central issue, on the question of liability, is one which, in my view, was quintessentially suited to be determined by a jury. That said, I did not consider that I could not determine it in a fair and appropriate manner. Accordingly, and particularly in light of the fact that the defendant did not oppose such a course, I directed that the case be heard and determined by me on the evidence called before the jury. I afforded to counsel the opportunity to make further submissions to me, to supplement their final addresses to the jury.

Background and issues

In the course of her duties as a librarian in the defendant’s finance section, the plaintiff was required to identify, cut out and file articles from four major daily newspapers, which related to significant Australian companies. She commenced that role in January 2003. In the latter part of 2003, she began to experience problems with the coordination of her right hand (which is her dominant hand), when she was attempting to write. In November 2003, she consulted…

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 Surmon v Herald & Weekly Times

Details

AGLC: Surmon v Herald & Weekly Times [2011] VSC 628
Case: [2011] VSC 628
Decision Date: 8 December 2011

CaseChat Overview and Summary

In the case of Surmon v Herald & Weekly Times, the plaintiff brought an action against the defendant, his employer, for damages resulting from injuries sustained in the course of employment. The plaintiff alleged that the defendant breached its duty of care and statutory obligations under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety Regulations 2007 by failing to implement a safe system of work, thereby causing the plaintiff to develop a rare medical condition. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the defendant breached its duty of care and statutory obligations under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety Regulations 2007 by not implementing a safe system of work. The central issue was whether the defendant took reasonable steps to address the plaintiff's reported injury and whether the plaintiff's underlying susceptibility to the condition was a material contributing factor to the injury. The court needed to weigh these issues in the context of the statutory duties and common law obligations of the employer.

The court found that the defendant did not breach its statutory duty of care or the statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety Regulations 2007. The court concluded that the plaintiff's underlying susceptibility was a material contributing factor to the injury, and the defendant had taken reasonable steps to address the reported injury. The court held that the plaintiff's action was dismissed, and the defendant was not liable for the damages claimed.

The court made no orders for costs.

Orders