Tomic, Z. v Limro P/L - [1993] FCA 897

ZORA TOMIC v. LIMRO PTY. LIMITED and AUSTRALIAN CAPITAL TERRITORY HEALTH
AUTHORITY
No. ACT G79 of 1993
FED No. 897/93
Number of pages - 11
Evidence
(1993) 47 FCR 414

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
GENERAL DIVISION
BEAUMONT, VON DOUSSA AND HIGGINS JJ

CATCHWORDS

Evidence - significance of admission of fact in answer to interrogatories - to what extent is Court bound to accept uncontradicted evidence.

Gannon v Gannon (1971) 125 CLR 629.

Devries v Australian Railways Commission (1992) 112 ALR 641.

Dawson v Westpac Banking Corporation (1991) 104 ALR 295.

Holman v Holman (1964) 81 WN (Pt. 1) (NSW) 374.

Hardy v Gillette (1976) VR 392

HEARING

CANBERRA, 4 November 1993

#DATE 3:12:1993

Counsel and Solicitors Mr. C. Hickey with
for Appellant: Mr. M.C. Scott instructed

by Scott Sheils and Glover

Counsel and Solicitors Mr. W. Austron instructed
for First respondent: by Hunt and Hunt

Counsel and Solicitors Mr. R. Williams QC with
for Second respondent Mr. B. Meagher instructed

by A.C.T. Government Solicitor

ORDER

THE COURT ORDERS THAT:

The appeal is dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

INTRODUCTION

BEAUMONT, VON DOUSSA AND HIGGINS JJ The appellant, Zora Tomic, brought an action in the Supreme Court for damages for personal injuries she claimed she sustained on 6 August 1985 in the course of her employment by the first respondent, Limro Pty. Limited, on premises occupied by the second respondent, Australian Capital Territory Health Authority, the Jindalee Nursing Home. Gallop J dismissed the claim against each of the respondents. The appellant now appeals from his Honour's order that judgment be entered for the respondents.

THE APPELLANT'S CASE AT FIRST INSTANCE
2. By her statement of claim, the appellant alleged that on 6 August 1985, when employed by the first respondent to perform cleaning work at the nursing home premises occupied by the second respondent, she fell on a wet and slippery linoleum floor in the premises and was injured.

(1) The claims pleaded as against the first respondent
3. The appellant claimed that the first respondent was negligent by failing to ensure a safe place of work and, in particular, failed to provide a system which would prevent water and other liquids from lying on smooth linoleum in the area where she worked. She also claimed that the first respondent should have seen to it that there was a "non-skid" surface, such as a suitable mat, and should have provided her with adequate "non-slip" footwear. She further claimed that the first respondent failed to warn her of the risks involved in attempting to walk across such a slippery surface.

(2) The claims pleaded as against the second respondent
4. As against the second respondent, the appellant alleged a failure (a) to warn her of the slippery area; (b) to provide a suitable surface; and (c) to provide a system to prevent others from depositing water or other…

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 Tomic, Z. v Limro P/L

Details

AGLC: Tomic, Z. v. Limro P/L & Anor [1993] FCA 897 ((1993) 47 FCR 414)
Case: [1993] FCA 897
Decision Date: 03 DECEMBER 1993

CaseChat Overview and Summary

In the case of Tomic, Z. v Limro P/L, the matter before the court was one of contractual dispute. The plaintiff, Tomic, sought damages against the defendant, Limro P/L, for alleged breaches of contract. The Federal Court of Australia was tasked with examining the admissibility and weight to be given to certain admissions made by the defendant during discovery proceedings, particularly in response to interrogatories.

The central legal issue revolved around the extent to which the court should be bound by uncontradicted admissions made in answers to interrogatories. The plaintiff argued that the admissions should be given significant weight, if not be treated as conclusive evidence of the facts admitted. The defendant, however, contended that such admissions should not automatically bind the court and that the weight to be given to such admissions should be carefully assessed in light of all the evidence presented.

The court considered the well-established principles of evidence law and the flexibility afforded to courts in assessing the weight of admissions. The court determined that while admissions can carry significant weight, they are not necessarily binding. The court must consider the context of the admission, the circumstances in which it was made, and any other relevant evidence. In this case, the court found that the admissions made by the defendant were not to be taken as conclusive and should be weighed alongside all other evidence, including the defendant's subsequent denials and additional evidence presented.

The court dismissed the appeal, holding that the trial judge had appropriately exercised his discretion in assessing the weight of the admissions. The court also ordered that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

THE COURT ORDERS THAT:

The appeal is dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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