Wilk v Hillcrest Health (Ruling No 1)

[2011] VSC 151

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 8864

LUCINA WILK	Plaintiff
v
HILLCREST HEALTH CENTRE PTY LTD	First Defendant
and
DR NIHAD MINAS	Second Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2011
DATE OF RULING:	5 April 2011
DATE OF REASONS:	19 April 2011
CASE MAY BE CITED AS:	Wilk v Hillcrest Health & Anor (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VSC 151

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PRACTICE AND PROCEDURE – Claim for damages for workplace assault – Claim in negligence against employer – Complex issues – Mode of trial – Jury sought by defendant – Plaintiff’s application for direction for trial by judge alone successful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Jewell SC and Mr M Ruddle	Clark Toop and Taylor
For the First Defendant	Mr R Stanley QC and Ms H Donmez	Thomson Playford Cutlers
For the Second Defendant	Mr S McCredie	Tien Tran Solicitors

HER HONOUR:

1. This is an application by the plaintiff, Ms Wilk, for a direction under r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 for trial without a jury.  The application is opposed by the defendants, ‘Hillcrest’ and Dr Minas.

1. I informed the parties that I would make the direction sought and now provide my reasons for that ruling.

The proceeding

1. Ms Wilk was the manager of Hillcrest’s medical practice and employed by the company.  Dr Minas was a director and shareholder of Hillcrest. Ms Wilk claims damages from both defendants for negligence causing injury to her as a consequence of an alleged assault by Dr Minas.  She claims damages against Dr Minas directly for negligence and assault.  She seeks relief against Hillcrest directly, for its negligence, and indirectly, as the employer of Dr Minas or as an entity otherwise vicariously liable for his tortious acts of negligence or assault.  

1. Hillcrest denies that Dr Minas was its employee, whilst Dr Minas alleges that he is.

1. Ms Wilk maintains that, whether Dr Minas was an employee or contractor or had some other relationship with Hillcrest, it owed her a duty of care which it breached in this case.

The application

1. An application for a direction dispensing with a jury must be considered on a case by case basis.[1]  The party who gives notice under the Rules has a prima facie entitlement to a jury and should not be deprived of that entitlement without good cause.[2]  Generally, juries should be regarded as capable of dealing with complex legal and factual issues but the Court has a discretion to direct that a trial proceed without a jury if that is in the interests of justice.[3]

   [1]Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 [36] (Warren CJ, Nettle and Ashley JJA).

   [2]Ibid [39].

   [3]Gunns Ltd & Ors v Marr & Ors (No 5) [2009] VSC 284 [9] (Forrest J).

1. Ms Wilk argued that the issues of fact and law raised by the pleadings in this case were too complicated for a jury.  She identified those as to the nature of the relationship between the two defendants, whether or not Dr Minas was acting in an unauthorised way within the scope of his employment or authority and the issue raised by Dr Minas in his contribution proceeding against Hillcrest as to whether or not it was estopped from denying indemnity to him as its employee.

1. Senior counsel for Ms Wilk noted Hillcrest’s arguments that Dr Minas was not its employee, that he carried on his own medical practice and that the service company of which he was a director provided the requisite facilities to allow him to do so.  He argued that the issue as to the proper characterisation of the contract between Dr Minas and Hillcrest would involve analysis of its substance, rather than its form.  Factors including the arrangements under which he was paid for his services and his opportunities to work under a roster system would be relevant to the determination. If the ultimate issue were one for the jury, there would be a risk that, in all the circumstances, it might give undue weight to the view of the company as to the nature of the relationship.

1. Submissions were made as to whether the issue of the character of the defendants’ relationship was one of fact or law.  Counsel for Ms Wilk contended that it was one of mixed fact and law and that it would be for determination by the jury on the basis of their own factual determinations under direction as to the law.  Counsel for Hillcrest submitted that it was a question of law, proper for determination by the judge after the evidence, and that the jury would then be charged on the basis of that characterisation in relation to matters such as the defendants’ duties of care.  Counsel for Dr Minas argued that the issue as to the existence of a relationship of employment was one of fact.

1. Senior counsel for Hillcrest indicated that he could not counter anything said in favour of Ms Wilk’s application.  He also characterised the evidence relating to the relationship between the defendants as unusual.  He nevertheless persisted with his client’s request for a jury.

1. Counsel for Dr Minas first indicated that he would not be relying on the estoppel pleading in his notice of contribution.  Contending that the existence of an employment relationship was a question of fact, he argued that it was suitable for a jury.  He submitted that the jury should be regarded as capable of dealing with that question, despite its complexity, because it would be capable of dealing with another complex issue as to whether each of two alleged acts of assault by Dr Minas was done with the requisite intent.  He also argued that the question as to whether Dr Minas was acting in the scope of his employment or authority was not an overly difficult one for the jury.

1. Senior counsel for Ms Wilk replied that the issue of the existence of a relationship of employment involved mixed questions of fact and law.  He contended that, if that issue were left to it,  there would be an unusual and potentially cumbersome process in which the jury would be asked to decide certain facts and then told either to take their findings into account or, alternatively, to disregard them, depending upon the outcome.

1. Senior counsel for Hillcrest conceded that, although the course he proposed would involve the jury hearing evidence which might, ultimately, not be relevant to the issues before it, juries in many cases heard evidence not used by them.

1. I am not persuaded that the question of the legal character of the relationship between Hillcrest and Dr Minas was one for the jury.  I prefer the view that the construction of the nature and effect of the contract between the parties in the circumstances of this case is a question of law.[4]

   [4]See Bowes v Chaleyer (1923) 32 CLR 159, 172 (Isaacs v Rich JJ); Hollis v Vabu Pty Ltd 207 CLR 21, 36 [31] (Gleeson CJ, Gaudron, Kirby, Gummow and Hayne JJ).

1. In distinguishing between a contract of service or employment and a contract for services, courts take into account the relationship between the parties and a variety of relevant factors[5] including:

   [5]See Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

(a)the extent of control over the work performed;[6]

[6]See Bertram v Armstrong & De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15.

(b)whether payment is on a time or job basis;

(c)who supplies tools, equipment and premises used;[7]

(d)the skill required for the work;

(e)the intention of the parties;

(f)the freedom of selection of labour by the employer;

(g)whether employment is for an indefinite period – being permanent or semi-permanent in nature;[8]

(h)freedom to work for others;

(i)the power to dismiss;

(j)the purpose for which the relationship is to be characterised – i.e. for a claim for compensation under workers compensation legislation;[9] or for determining whether contribution should be made to a superannuation fund or whether the principal is liable to payroll tax.[10]

[7]Wright v Attorney-General (Tas) (1954) 94 CLR 409.

[8]Federal Commission of Taxation v Barrett (1973) 129 CLR 395.

[9]See Green v Victorian WorkCover Authority [1997] 1 VR 364.

[10]See Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539.

1. It might well be the case, as counsel for Ms Wilk submitted, that the jury could be asked questions about the existence of facts germane to the assessment of the nature and effect of the agreement between the defendants.  In my view, however, it would be very difficult to formulate a suitably comprehensive set of questions, given that an assessment of ‘the totality of the relationship between the parties’ would be required.[11]  The same problem would bedevil any attempt to leave the issue of characterisation of the relationship itself to a jury, if (contrary to my view) it were properly characterised as one of fact.

   [11]Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16, 29 (Mason J); Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 41 [44]-[45] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).

1. The application of the principles relating to the characterisation of an act as one done in the scope of employment is a factual issue which also may involve difficult questions.

1. A jury deciding whether Dr Minas had acted within the scope of his employment by Hillcrest would need to determine whether the doctor was doing an act that he was authorised to perform, in an unauthorised way, or doing an act which he was not employed to perform.[12]  In the case of an assault which is an intentional tort, the motivation of the act will be relevant,[13] as will be whether the doctor’s act was reasonably incidental to the performance of his duties.[14]

   [12]Goh Choon Seng v Lee Kim Soo [1925] AC 550.

   [13]Auckland Working Mens’ Club and Mechanics Institute v Rennie [1976] 1 NZLR 278.

   [14]Hayward v Georges Ltd [1966] VR 202.

1. There is also the possibility that the doctor’s acts in relation to Ms Wilks were not authorised but may have been calculated to further Hillcrest’s objectives of running its business.  The jury would be required to determine whether the means of fulfilling those objectives was so outrageous that no employer could reasonably be taken to have contemplated such an act being within the scope of his employment.[15]

   [15]See Poland v John Parr & Sons [1927] 1 KB 236 (CA) in which an employee acted in an unreasonably excessive manner to protect his employer’s property, assaulting a boy he thought was stealing sugar from one of the employer’s trucks.

1. Hillcrest’s defence at the time of the application denied the allegations of employment and negligence and that Dr Minas was acting in the course of his employment.  It did not otherwise tackle the alternative allegations that it is vicariously liable for Dr Minas’s acts because he was acting on behalf of Hillcrest. 

1. In all the circumstances, I considered this to be a case which would be inappropriate for decision by a jury because of the complexity of the issues thrown up by the pleadings.

1. I granted the application and ordered that the proceeding be heard without a jury.