Case Note: Court of Appeal again finds against worker

Case Note: Court of Appeal again finds against worker

In Schembri v State of Victoria, the Court of Appeal rejected the appellant’s claim that the jury’s verdict for the defendant both in relation to his claim for negligence and breach of statutory duty was against the evidence and the weight of the evidence.

Appeals against a jury’s verdict are notoriously difficult. In order to succeed, an appellant has to show that the verdict “is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach”. (See Calin v. Greater Union Organisation Pty Ltd [1991] HCA 23.)

Mr Schembri was an experienced youth justice worker at the Malmsbury Youth Justice Centre.

On 21 May 2013, there was a ‘Code Black’ emergency initiated by the conduct of one of the inmates. As a result, inmates were directed to return to their rooms. All of them seemed to have done so, save for the inmate causing the disruption and another inmate referred to as TVD. The officer in charge at the time, Ms Thomas, directed Mr Schembri to escort TVD back to his room while accompanied by another youth justice worker. Mr Schembri wanted to sit down and talk to TVD and establish a rapport with him, as he thought that this would be preferable to effectively forcing him to return to his room. His request to do so was denied by Ms Thomas who directed him and a fellow employee to immediately escort TVD back to his room.

In accordance with these directions, Mr Schembri and a fellow employee were taking TVD back to his room when he lashed out and kicked Mr Schembri in his knee, allegedly causing him to sustain a damaged anterior cruciate ligament. The respondent claimed that other incidents may have been implicated in the knee injury, although the medical evidence suggested otherwise.

TVD had a history of bad behaviour and Mr Schembri had dealt with him on numerous occasions in the past. Various incident reports, handover notes, daily service advices and client service plans and recommendations had not been brought to the attention of either Ms Thomas or Mr Schembri. The appellant relied upon these failures in both the negligence and breach of statutory duty claims.

The respondent answered these allegations by noting that TVD’s behavioural issues were well known by all staff regardless of any information in reports, advices and plans. Secondly, even if all of that information had been made available prior to the incident, in the difficult circumstances that prevailed Ms Thomas would not have done anything differently.

The Court of Appeal concluded that the jury were entitled to conclude that any procedural failure on the employer’s behalf didn’t have any causal consequences and that Ms Thomas’ directions to the applicant were reasonable in all the circumstances. Accordingly, the applicant was unable to show that on the most favourable evidence available for the respondent, the jury could not have reasonably reached its verdict. Similarly, when taking the view of the evidence most favourable to the respondent, it remained open to a jury to conclude that the risk of escorting TVD could never have been eliminated by reasonably practicable means and what occurred on the day of the incident was a reasonably practical method of reducing the risk of a musculo-skeletal disorder. As such, the claim based upon a breach of the Occupational Health and Safety Regulations also failed.

As a consequence of the court’s findings, leave to appeal was refused.


At trial, the jury clearly took a pragmatic approach to the problem and came to a conclusion which was difficult to attack on appeal particularly given the high standard required to overturn a jury decision. A cynic might suggest that the common sense exhibited by the jury in this case is a good argument for the retention of jury trials.