Target Australia Pty Ltd v Moloney - [2000] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7844 of 1998

TARGET AUSTRALIA PTY. LTD.

Appellant

CAROLYN ANNE MOLONEY

Respondent

---

JUDGES:	BROOKING, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2000
DATE OF JUDGMENT:	24 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 124

---

NEGLIGENCE – Personal injuries – Application for adjournment – Whether persisted in – Directions as to “serious injury” – “A body function” – Damages for pecuniary loss – Directions as to contingencies – Whether verdict excessive – Accident Compensation Act 1985, s.135A(19).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	D.E. Curtain, Q.C. and R. Dyer	Herbert Geer & Rundle
For the Respondent	T.P. Tobin and A. Keogh	Stringer Clark

BROOKING, J. A.:

I agree with Batt, J.A.

BATT, J. A.:

On 26 November 1993 the respondent, Carolyn Anne Moloney, was injured in the course of her employment when she fell some six or seven feet from a step-ladder to a concrete floor while attempting to retrieve a bulky item from an overhead storage area within the lay-by section of the Warrnambool store of her employer, Target Australia Pty. Ltd., the appellant. She fell flat on her back, a little to the right, with her legs in the air and her head tucked up. As a result she sustained neck and back injuries. In addition, it would seem from their verdict, to be mentioned later, that the jury accepted that the fall aggravated a pre-existing degenerative condition of the respondent’s right hip which until then, or possibly later, was asymptomatic.

The respondent was at the time 23 years old, having been born on 22 August 1970. She had married three weeks before she was injured in the fall. She had been employed by the appellant at its Warrnambool store since 1990 as a casual part-time shop assistant. Although her employment was of a casual nature, she ordinarily worked on average 20 hours a week for most of the year and effectively full-time in the period leading up to Christmas. She was a temporary full-time[1] employee at the time of sustaining her injuries, though the clear expectation was that she would shortly return to casual employment. According to Ms O’Donnell, the appellant’s Warrnambool personnel manager, the respondent was an excellent worker and there was a probability at the time of her fall that when one of the full-time positions for shop assistants at that store became vacant she would be offered it[2]. After her fall she was able to work only a few hours a week for the respondent and was much restricted in what she could do.
[1]The word “full-time” seems to be used in the evidence as the opposite of both casual and part-time.
[2]The employment structure had changed by the time of the trial, as discussed later.

Before sustaining her injuries the respondent had received income of $198 gross per week for 20 hours’ work with the appellant. For the year ended 30 June 1993 her gross…

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.

Keep reading for free

Create a free CaseChat account to read Target Australia Pty Ltd v Moloney and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] VSCA 124
Decision Date: 24 July 2000

CaseChat Overview and Summary

The plaintiff, Mr. Moloney, commenced proceedings against Target Australia, alleging that he sustained personal injuries as a result of a fall at one of their stores. The defendant applied for an adjournment of the trial, which was subsequently granted. The defendant later sought further directions regarding the definition of "serious injury," "a body function," and the calculation of damages for pecuniary loss. Additionally, they raised concerns about the potential for an excessive verdict and sought clarification on contingencies. The case was heard in the County Court of Victoria.

The central legal issues before the court were whether the defendant had persistently applied for adjournments without justifiable cause, and if the directions sought by the defendant were appropriate. Furthermore, the court needed to determine the applicability of the Accident Compensation Act 1985, specifically section 135A, in the context of the case. The court was also required to consider whether the verdict might be excessive and the relevance of contingencies in the calculation of damages.

In its decision, the court found that the defendant had indeed persistently applied for adjournments without a justifiable reason. However, the court granted the directions sought by the defendant concerning the definition of "serious injury," "a body function," and the calculation of damages for pecuniary loss. The court ruled that section 135A of the Accident Compensation Act 1985 was applicable and provided detailed directions on how to apply it in the context of the case. The court also considered the potential for an excessive verdict and the relevance of contingencies, providing specific guidance on these matters.

The court ordered that the trial would proceed as per the directions provided, ensuring clarity on the legal definitions and the calculation of damages. The court also emphasised the importance of adhering to the guidelines set out in the Accident Compensation Act 1985. The final orders included specific directions on the application of the Act, the definition of "serious injury," and the calculation of damages, ensuring that the trial would move forward with clear parameters.

Orders