Facts

In Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd and Ors, the plaintiff was employed as a cleaner at St John’s Regional College.

The plaintiff injured herself when she slipped when mopping up spilled liquid soap from a vandalised soap dispenser in the male toilet.

The plaintiff commenced Supreme Court proceedings for her injuries and the hearing proceeded before a jury.

The plaintiff alleged her employer, the school and the manufacturer of the soap dispenser were negligent.

The plaintiff relied on an engineer’s report which implicated the system of work, the school for not properly overseeing the cleaning and allowing the soap dispenser to be vandalised, and the supplier for alleged unsatisfactory installation of the soap dispenser.

Ultimately, the plaintiff was unsuccessful when the jury found the employer and the school were not negligent.

The supplier had already been let out of the proceeding during the trial.

During the course of giving evidence, the plaintiff's engineer disclosed he prepared and submitted three reports to the plaintiff's solicitors, two with the same date but with slightly different wording and a third prepared during the course of the trial.

The reports bearing the same dates were served on the employer, school and manufacturer but the report served on the school differed from the report served on the others.

The engineer’s third report had been prepared at the request of the plaintiff's legal team but not served on the other parties.

Decision

There were a number of rulings made by the presiding judge including one which categorised the use of the mop as falling within the definition of “manual handling” under the Manual Handling Regulation.

After entering judgment in favour of the defendants against the plaintiff, the presiding judge made orders there were prima facie grounds the engineer and the plaintiff's solicitors had contravened sections 16, 17, 21 or 26 of the Civil Procedure Act 2010 (Vic) (CPA).

Therefore, pursuant to section 29(2)(b) of the CPA, the Court made an order by its own motion it was proposed to consider whether any order should be made under section 29(1) of the CPA in the interests of justice.

The presiding judge then listed the hearing and determination of the court’s motion under section 29(1) of the CPA. There were a number of rulings concerning the procedure for determining the consequences of any contraventions of the CPA.

The presiding judge ruled the CPA provided for compensation to flow to aggrieved parties if those parties could show any loss associated with a contravention.

Further it was not up to the court to identify the nature of the contraventions except to point to the preparation of the third report.

It was then up to the plaintiff's engineer and legal team to explain how each had complied with the CPA.

Implications

This case demonstrates the care needed by experts and legal practitioners in litigation where their conduct will be scrutinised to ensure compliance with the CPA .