Defendant successful in no-case submission:

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The Ruling in Tuner v Norwalk Precast Burial Systems Pty Ltd [2023] VCC 1843

By Stuart Eustice, Partner, Holly White, Associate and Gregor Campbell, Law Graduate

Factual Background

The Plaintiff commenced proceedings against the Defendant who had installed and maintained a septic tank at the Plaintiff’s property. The Plaintiff alleged the Defendant’s negligent installation and maintenance of the septic tank led to him testing positive for helicobacter pylori, a bacterium which is spread by the faecal/oral route and he claimed for health issues arising as a result.  The Defendant disputed the Plaintiff’s claim on various grounds including whether the septic tank had been negligently installed. Its primary submission however, was that the Plaintiff could not prove that the sceptic tank had caused his infection. It followed the Defendant made a no-case submission at the close of the Plaintiff’s case on day four of the trial.


The Court acknowledged the Defendant owed the Plaintiff a duty of care however agreed with the Defendant that the Plaintiff had failed to prove his health issues were caused by the Defendant’s negligence above the standard of “being a mere possibility”.

In coming to this conclusion, the Court found that:

  1. The Plaintiff’s claim that a missing aerator arm caused his health issues lacked substantial evidence.
  2. The Plaintiff had failed to explain the basic operation of the septic tank in relation to its treatment of helicobacter pylori and therefore failed to demonstrate whether the septic tank was capable of emitting helicobacter pylori at the time of his infection.
  3. Medical opinions did not conclusively link the Plaintiff’s infections to the Defendant’s actions. In particular, the Plaintiff’s medical experts took an incorrect medical history of the Plaintiff, and failed to tie the pleaded negligence of the Defendant to the Plaintiff’s infection.

The Court therefore upheld the Defendant’s no-case submission and the Plaintiff’s claim was dismissed. This ruling serves as a reminder of the importance of leading relevant expert and medical evidence in personal injury claims.

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