Zhang v Golden Tape Constructions Pty Ltd

[2009] VCC 547

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-00534

CONG SHENG ZHANG	Plaintiff
v
GOLDEN TAPE CONSTRUCTIONS PTY LTD	First Defendant
and
THE INTERCON GROUP PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	24-27, 30-31 March and 1-3 April 2009
DATE OF RULING:	3 April 2009
CASE MAY BE CITED AS:	Zhang v Golden Tape Constructions Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VCC 0547

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RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Victorian Compensation
Mr M J Walsh	Lawyers
For the First Defendant	Mr R J Stanley QC with	Minter Ellison
Ms B Knoester
For the Second Defendant	Mr A W Middleton	Norris Coates
HIS HONOUR:

1          In this proceeding an application has been made on behalf of the plaintiff that I exercise the discretion given to me pursuant to the provisions of Rule 47.02 of the County Court Rules to make an order directing a trial without jury. It is appropriate to recount the history of the proceeding and of this application.

2          The trial commenced on 24 March 2009. On the morning of the third day of the trial an application was made by Mr Richards SC who appears for the plaintiff, for an order that the jury be discharged. Essentially the grounds for the application were that the issues in the trial, particularly the issue which required the jury to make a finding as to whether the plaintiff was an employee of the first defendant (the employment issue), involved matters of such complexity that the trial should proceed as a cause.

3          The application made on behalf of the plaintiff was opposed by both the first and second defendants.

4          In making the application on behalf of the plaintiff, it was submitted that:

•  The jury was required to determine whether the relationship between the plaintiff and the first defendant should be categorised as that of:

(i)      employer-employee; alternatively

(ii)      principal and sub-contractor; alternatively

(iii)      a relationship of a different category to the two previously listed which was not capable of precise definition until the evidence in the matter had concluded.

• At the time at which the jury considered its verdict against the first defendant, a positive finding as to employment would require the jury to consider a duty different in scope and content to that which arose if the jury were to find that a relationship between the plaintiff and the first defendant other than employer-employee existed, and that the duties would have to be considered as alternatives.

• In any event, in deciding the case the jury would have to deal with different duties of care owed by the first defendant and the second defendant to the plaintiff.

5          In opposing the plaintiff’s application, it was the position of both defendants that the issues to be determined by the jury were not so complex that it was inappropriate for the trial to proceed as a trial by jury.

6          At the time at which the application was made, the only evidence which had been given which was relevant to the employment issue was that of the plaintiff. Having regard to the state of that evidence, I declined to make the order sought on the basis that I was not satisfied that the employment issue would necessarily arise for the jury’s consideration. I reserved however to the plaintiff, the right to renew the application at a later time when further evidence on the employment issue had been given.

7          On 1 April 2009, the evidence to be called by the plaintiff on the employment issue was concluded. At that time I raised with counsel the fact that I had reserved to the plaintiff the right to renew the application earlier made and sought the views of Mr Stanley QC who appears for the first defendant, and Mr Middleton who appears for the second defendant, as to whether the evidence had reached the stage at which consideration of the issue was appropriate. Having regard to the submission by counsel for both the first and second defendant that any consideration of the matter should be delayed at least until the time at which the first defendant had closed its case and perhaps until the completion of all the evidence, I considered it appropriate to delay consideration of the issue further.

8          The evidence in the case was concluded on the afternoon of 2 April 2009. On the morning of 3 April 2009, Mr Richards renewed his application that the matter should be taken away from the jury.

9          In making this application, it was submitted by Mr Richards that the determination required of the jury in dealing with the employment issue involved issues of mixed fact and law of such complexity that an order should be made that the trial should proceed in the absence of the jury.

10        In addition, a further matter was raised on behalf of the plaintiff which had arisen late in the trial and related to the evidence given by the last witness to be called on behalf of the second defendant, Mr David Campbell.

11        Mr Campbell had given evidence that from the time the plaintiff had entered onto the work site and until approximately two hours before his accident:

(i)      the stairwell over which the plaintiff was working at the time at which he fell was protected by a scaffold and planks laid so as to create a solid barrier from falling.

(ii)      this barrier had been dismantled in disobedience of instructions given by Mr Campbell that no work should be done on the scaffolding by anyone other than Mr Campbell.

12        The effect of this evidence was to suggest that the plaintiff and his co-workers were responsible for the unauthorised removal of the scaffolding and thus for the plaintiffs injury.

13        This was the first time in the trial that such allegation had been made. The allegation was not put to the plaintiff, the two co-workers called by the plaintiff nor to Mr Yong Junxu, who gave evidence on behalf of the first defendant.

14        It was submitted by Mr Richards that the failure by the second defendant to put the content of Mr Campbell’s proposed evidence to previous witnesses further complicated the trial.

15        At the time at which the application was made, I enquired of Mr Stanley whether it would be put on behalf of the first defendant that the state of the evidence was such that the jury should not be required to consider the employment issue. Mr Stanley accepted that this was an issue which the jury would be required to determine.[1]

[1]             T 807

16        In the course of dealing with the application, I provided to counsel a draft of the charge which I had prepared for the purpose of instructing the jury as to the way in which they were required to consider the employment issue.[2] I sought the views of counsel as to whether the charge which I had prepared accurately identified the issues which the jury would be required to consider in the course of determining the issue. It was not suggested to me that the draft contained matters which were extraneous to the task with which the jury was to undertake. The content of the draft Charge illustrates in my view the complexity of the issues involved and the difficulty with which a jury will encounter in having to decide the issue.

[2]             I append the draft Charge to this Ruling

17        The question as to whether a relationship of employer-employee exists, involving as it does no single definitive test but rather a balancing of a number of factors each of which can have differing weight in a particular factual scenario, is an issue of considerable complexity.

18          Having regard to:

(i)      the subtleties involved in the analysis.

(ii)      the difficulty of conveying to a jury the relative importance of each of the factors which they are required to consider in the circumstances of the present case when in undertaking their analysis.[3]

[3]             I am cognisant that the jury will not have access to the substantial line of authoritative decisions which allow a comparison to be made of various factual scenarios and provide instruction as to the way various factors may be weighted when considering the question of employment.

it is my concern that the jury will have considerable difficulty dealing with the charge I am required to give them and thereafter carrying out their function in determining this issue appropriately.

19        The issue of employment is of fundamental importance both in determining the verdict between the plaintiff and the first defendant and in the result of the contribution proceeding between the first defendant and the second defendant.

20        In charging the jury I am required to acquaint them with three duties of care, namely those which arise:

ƒ	between employer and employee
ƒ	by reason of the relationship of the proximity which existed between the plaintiff and the first defendant
ƒ	between occupier and entrant.

21        Further

(i)

the jury will be required to make a determination of the employment issue and if satisfied as to the existence of an employment relationship, to apply the duty which arises between an employer and employee in determining any breach of duty by the first defendant. Alternatively, if the jury is not satisfied that an employer-employee relationship arises, they will be required to apply a different test in determining the issue of breach by the first defendant of its duty of care to the plaintiff.

(ii)

it will be necessary to charge the jury that they are to approach the question of contributory negligence in the context of the finding made by them as to the precise duty of care owed by the first defendant to the plaintiff.

22        When account is taken of:

(1) The task which the jury is required to undertake in determining the

employment issue.

(2)	The fact that the jury requires instruction as to
• alternate duties which arise between the plaintiff and the first defendant depending upon their finding as to the employment issue • alternative approaches which they should apply in considering the issue of contributory negligence having regard to their finding as to the duty of care which was owed by the first defendant to the plaintiff.
(3)	The fact that independently of the determination of the employment issue the jury is required to consider separate duties of care owed to the plaintiff by the first defendant and the second defendant.
(4)	The significance of the employment issue both in the primary proceeding and in the contribution proceedings.
(5)	The fact that the jury will be required to deal appropriately with the issue which arises as to the evidence given by Mr Campbell which will involve a detailed direction of the type considered by the Court of Appeal in Beattie v Ball.[4]

[4] [1999] 3 VR 1

23        I am of the opinion that the task required of the jury is so complex that I should make an order that the jury be discharged and the matter proceed as a cause.

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