Birti & Anor v SPI Electricity & Anor
[2011] VSC 566
•11 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2010 01497
| LENA BIRTI & JOSEPH BIRTI | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Defendants |
and
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by counterclaim |
| and | |
| EAGLE TRAVEL TOWER SERVICES PTY LTD (ACN 070 093 776) & ORS | Defendants by counterclaim |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2011 | |
DATE OF RULING: | 11 November 2011 | |
CASE MAY BE CITED AS: | Birti & anor v SPI Electricity & anor | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 566 | |
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PRACTICE & PROCEDURE – Mode of trial – Entitlement to jury trial for part of claim – Rule 47.02 Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Separate trial of issues – Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - Whether jury trial on discrete issues would give effect to overarching purposes –Sections 8 and 9 Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the First PlaintiffLena Birti | Mr G Melick SC Mr C B Thomson | Moyle Legal |
| For SPI Electricity Pty Ltd | Mr J Beach QC Mr D Farrands | Freehills |
| For Eagle Travel Tower Services Pty Ltd | No appearance | McCabe Tyrrell |
| For Parks Victoria and the Secretary to the Department of Sustainability and Environment | Mr C Caleo SC Ms Helen Rofe | Norton Rose |
| For the plaintiffs in group proceeding No SCI 2010 1978 Mr Paul Merceica and Amelia Coombes | Mr D Armstrong | Maddens |
HIS HONOUR:
Introduction
Mrs Lena Birti, with her husband Joseph, instituted proceedings[1] seeking damages for economic loss, as well as psychiatric injury on her behalf against the defendants arising out of the Beechworth Black Saturday bushfire.[2] That claim was endorsed for trial by jury.
[1]“the Birti proceedings”, SCI 2010 01497.
[2]“the Beechworth fire”.
A group proceeding has also been issued against the same defendants in respect of property damage and personal injury allegedly caused by the same bushfire.[3] It is to be determined by a judge sitting alone.
[3]“the group proceeding” SCI 2010 01978.
In both proceedings the allegations of negligence and breach of statutory duty are close to identical. The group proceeding is set down for trial at Wodonga on 20 February 2012. Orders have been made with the intent that the Birti proceeding be heard at the same time.
The question now arises as to whether Mrs Birti’s claim or, more accurately, part of it (the issues of causation and assessment of damages) can be determined by a jury or whether it should be heard in its entirety in conjunction with the group proceeding by a judge sitting alone.
Background to this application
The Birtis operated a vineyard with an associated café business on a property at Morgans Creek Road, Kancoona South (south of Beechworth).
On Black Saturday, 7 February 2009, the fire started in the vicinity of a power line located on the Buckland Gap Road, outside Beechworth.
The fire threatened the Birti property but did not cause any damage to the property or the café itself.
The Birti proceeding was issued on 22 March 2010; Mrs Birti’s claim was identified by her counsel as follows:
Her claim involves a claim for psychiatric injury caused by threat of fire, as well as damage to the grapes by smoke taint and consequential economic loss through loss of the consequent opportunity to make and sell wine from the crop as well as the economic interference with their café and restaurant business.
The group proceeding issued on 21 May 2010 is now brought by Paul Merceica and Amelia Coombes[4] on behalf of themselves and
those persons who suffered loss or damage to property include some persons who also suffered personal injury (whether physical injury, mental injury, psychiatric injury or nervous shock) as a result of the Beechworth bushfire. Personal injury claims made by persons who fit the definition of group members are covered by this proceeding.[5]
Mrs Birti has, pursuant to s 33J of the Supreme Court Act 1986 (Vic), opted out of the group proceeding.
[4]The original proceeding was brought by Leslie and Gwilma Brown. Mr Merceica and Ms Coombes were subsequently substituted as the representative plaintiffs.
[5][1] of the Amended Statement of Claim.
Both proceedings have in recent months been managed by Dixon J (his Honour is also the trial judge) with the assistance of Zammit AsJ. The trial of the group proceeding is set down for 20 February 2012 at the Wodonga Supreme Court.
On 20 June 2011, Dixon J made the following order:
In the event that there remains issues between the parties following the consultation required in the preceding paragraph of this order, any particular issues as to whether, or how, the trial that [the Birti proceeding] be held at the same time before the same judge as the trial in [the group proceeding], the plaintiffs in each proceeding shall by 26 September 2011 apply to the Associate to Dixon J, to reconvene the case management conference.
If no application is made by 26 September 2011 to reconvene the case management conference, the trial of [the Birti proceeding] as fixed for hearing on 20 February 2012 in Wodonga, such trial, subject to any further direction of a judge, to be held at the same time with the same judge at the trial of [the group proceeding].
On 16 September 2011, Zammit AsJ made the following order in the Birti proceeding:
Any summons by the first plaintiff in this proceeding for directions as to whether the mode of trial be by jury or by judge alone should file and serve no later than 4.00pm on Friday 23 September 2011…
The Birtis then issued a summons on 23 September 2011 seeking the following orders:
1.In [the Birti proceeding] the plaintiff Lena Birti be bound by any findings on questions of liability in [the group proceeding].
2.In [the Birti proceeding] the plaintiff, Lena Birti, is entitled to trial by jury on any question of causation or injury and damages arising from her claim.
SPI[6] and the State defendants[7] oppose Mrs Birti’s application. The second defendant, Eagle Travel Tower Services Pty Ltd, did not appear on the application.
[6]The first defendant, SPI Electricity Pty Ltd.
[7]Parks Victoria and the Secretary to the Department of Sustainability and Environment and Parks Victoria.
Applicable principles
Rule 47.02 provides:
Mode of trial
(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if—
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
(b)the prescribed fees for the purposes of section 24 of the Juries Act are paid.
(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.
(3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
In Gunns Ltd v Marr (No 5)[8] and Messade v Baires Contracting Pty Ltd (Rulings 2, 3, & 4)[9] I set out the principles relevant to an application under r 47.02. The Court of Appeal recently in Trevor Roller Shutter Service Pty Ltd v Duane Crowe[10] dealt with the application of r 47.02(3) where the trial judge had determined to hear the proceeding sitting alone, rather than with a jury – as requested by the defendant. As far as I can determine, there is nothing in that decision that is inconsistent with my previous rulings. However two specific matters identified by the Court of Appeal should now be added to my list of considerations which I restate below:-
[8][2009] VSC 284.
[9][2011] VSC 75.
[10][2011] VSCA 16.
(a)Subject to compliance with the Rules of Court a party is entitled to seek trial by jury provided the claim is founded in contract or in tort.
(b)For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of the trial by jury.
(c)Where a party has given notice regularly that a trial by jury is required that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury.
(d)Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.
(e)A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.
(f)As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.
(g)The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.
(h)Even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time
(i)The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.
(j)Subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant
·(i) the complexity of the factual matters that the jury will need to consider
·(ii) the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants
·(iii) the complexity of the jury’s task in relation to the assessment of damages
·(iv) the potential duration of the trial (although this, of itself, could never be the determining factor); and
·(v) the stage at which the proceeding or trial has reached.
(k)A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.
It is also necessary to refer to r 47.04 which reads as follows:
Separate trial of question
The Court may order that—
(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;
(b) different questions be tried at different times or places or by different modes of trial.
Analysis
At the outset it is helpful to identify the constituents of “liability” and “causation” in the context of the two proceedings. To establish that the defendants are liable in negligence[11] to Mrs Birti, Mr Merceica or Ms Coombes and the group members the plaintiffs will need to prove:
(a)existence of duty;
(b)breach of duty; and
(c)that the breach has resulted in actionable damage.
[11]For present purposes it is not necessary to examine the claims alleging breach of statutory duty.
Causation will be established by the respective plaintiffs proving that the wrongful conduct constituting the negligent acts or omissions was a necessary condition of the injury or damage alleged by that plaintiff.
The orders in place (made by the trial judge) do not definitively require the Birti proceeding to be heard at the same time as the group proceeding. However, it is clear from their tenor that his Honour intends to hear both cases together, subject to any directions he may give as to the conduct of the two proceedings in the trial stage.
Counsel for Mrs Birti confirmed that it was his client’s instructions not to oppose his Honour hearing and determining the question of liability in the Birti proceeding at the same time as the group proceeding. He also confirmed that Mrs Birti would be represented at the hearing but that the extent of her participation in the trial would be the subject of discussion with the trial judge. Inevitably, as was accepted by counsel for Mrs Birti, the question of liability will be determined by his Honour sitting alone.
The sole question then is whether the remaining aspect of Mrs Birti’s proceeding, either in the form of her claim for economic loss or for personal injury, should be heard by a jury, given her desire for such a trial.
The first point to note is procedural. The defendants contend that r 47.04 is the applicable rule as r 47.02 applies to the trial of a proceeding. Here it is accepted that the proceeding, as a whole, cannot be heard by a jury if it is heard together with the group proceeding. Rather the question, correctly identified by counsel for the defendants, is whether there should be a separate trial under r 47.04 of the issues of causation and assessment of damages in relation to Mrs Birti’s claims for economic loss and psychiatric injury.
Counsel for the defendants directed my attention to a number of cases concerning the sparing use that should be made of r 47.04.[12] However, those decisions pre-dated the Civil Procedure Act 2010 which governs a claim such a this. Section 8 requires a court to give effect to the overarching purposes which are set out in s 9 and include:
[12]E.g. Dunston v Simmie & Co Pty Ltd [1978] VR 669, 671 (Young CJ and Jenkinson J); Verwayen v Commonwealth [1988] VR 203, 206 (Young CJ, McGarvie and Nicholson JJ).
(a) the just determination of the civil proceeding;
…
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
and
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii)the amount in dispute.
By s 49 of the Civil Procedure Act 2000, a court is empowered to give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
Accordingly, the question is, what is the most efficient and just way to deal with Mrs Birti’s claim (including the issues of causation and assessment of damages), bearing in mind that the question of liability in her proceeding will be heard at the same time as the group proceeding and necessarily before a judge alone.
In my view, the well established proposition relevant to any application under r 47.02 that there must be a special reason to dispense with a jury is also a relevant consideration in determining this application under r 47.04. The Court’s power under the rule extends to the nature of the identified question and the mode of trial.
The primary consideration in favour of Mrs Birti’s application is that she has at all times sought trial by jury. But for the presence of the group proceeding the defendants may have had a tough time persuading a judge to disperse with the jury. If it is practicable, Mrs Birti’s desire to have at least part of her claim tried by a jury should be accommodated – but only insofar as that does not result in any major duplication of evidence or impinge upon the Court’s management of the two proceedings.
Before turning to Mrs Birti’s claims, a couple of points should be made.
First, establishing the existence of a duty of care in both psychiatric injury and economic loss claims is not necessarily straightforward. As Gleeson J said in Tame v State of New South Wales:[13]
In the case of physical injury to person or property, arising out of commonplace relationships such as employer and employee, or bailor and bailee, or resulting from commonplace activities such as driving a motor vehicle, the requirements as to legal responsibility are well settled, often against a background of insurance practice. But defining the circumstances in which it is reasonable to require a person to have in contemplation, and take steps to guard against, financial harm to another person, or emotional disturbance that may result in clinical depression, requires the caution which courts have displayed.[14]
[13](2002) 211 CLR 317 (“Tame”).
[14]Tame 322 [15] (Gleeson CJ).
Second, the existence of a duty of care will be established by the application of common law principles,[15] however ss 49 and 50 of the Wrongs Act 1958 (Vic) govern questions of breach and s 51 deals with causation.
[15]Adeels Palace v Mubarak (2009) 239 CLR 420.
Mrs Birti’s claim for economic loss relates to the loss of income from the café and vineyard which she operated in partnership with her husband. The immediate and apparent complication is that Mr Birti remains part of the group proceeding (having not opted out as his wife did) and also a co-plaintiff with his wife in the Birti proceeding. When I asked counsel for Mrs Birti how a jury trial of issues of causation and assessment of loss in Mrs Birti’s economic loss claim could proceed given that Mr Birti was part of the group proceeding, it was suggested that Mrs Birti proceed with the claim on behalf of the partnership and then after the jury verdict judgment would be given to her for half the claim. Putting to one side the jurisprudential problems of such an approach (such as what would happen to the assessment of Mr Birti’s claim under Part 4 of the Supreme Court Act1986 (Vic)), there is nothing that commends itself in this approach.
Moreover, Mrs Birti will need to establish as part of her case on liability that one or other of the defendants owed her a duty of care. Establishing such a duty will depend upon a consideration of decisions such as Pere v Appand Pty Ltd[16] and Woolcock Street Investments Pty Ltd v CDG Pty Ltd[17]. The existence of duty will not be resolved by foreseeability of risk alone but by also addressing questions of vulnerability, assumption of responsibility and proximity to the location of the tortious act to name but a few considerations. It will also be necessary for Mrs Birti to establish that she has sustained some economic loss to make good the cause of action. Some of these matters may well involve the adducing of evidence relevant to causation and, perhaps less likely, the assessment of damages.
[16](1999) 198 CLR 180.
[17](2004) 216 CLR 515.
In my view, particularly in the light of the status of Mr Birti’s claim, it is inconceivable that Mrs Birti can have her economic loss claim tried separately to that of her husband’s. That, in effect, means this part of the case cannot be determined by a jury and should not be the subject of a separate question.
Mrs Birti’s claim for psychiatric injury does not raise the same problem: it is her individual claim which could arguably be dealt with separately from the question of liability and, perhaps, causation.
I think counsel for SPI was correct when he identified the duty owed by the defendants as being “to take reasonable care to guard against psychiatric injury.”
The decision of the High Court in Tame established that reasonable foreseeability that a person will suffer a psychological or psychiatric injury as a result of breach is not sufficient to make out the existence of the duty. Whilst the High Court discarded considerations such as normal fortitude and direct perception of the “shocking” event, it nevertheless identified a number of other factual matters in addition to reasonable foreseeability relevant to the existence of a duty of care.[18]
[18]Tame 333 [17].
Gleeson CJ held that factors such as the vulnerability or susceptibility of a plaintiff may make it unreasonable to require the alleged tortfeasor to have in contemplation the degree of injury allegedly suffered;[19] also relevant, is the question of how and in what circumstances the plaintiff sustained the asserted injury.[20]
[19]Tame 332 [16].
[20]Tame 337 [38].
Gaudron J put it this way:
To identify those who may claim for pure psychiatric injury as those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected is not to say that the categories of persons who may recover damages for pure psychiatric injury are open-ended. Save for those who fall within the "direct perception rule", as extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury only if there is some special feature of the relationship between that person and the person whose acts or omissions are in question such that it can be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts.[21] (Emphasis added)
[21]Tame 340[52].
Gummow and Kirby JJ said:
Distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge concerning that phenomenon, may be relevant to assessing reasonable foreseeability, causation and remoteness of damage in a common law action for negligently inflicted psychiatric illness. But they are not themselves decisive of liability. To reason otherwise is to transform a factor that favours finding a duty of care in some cases into a general pre-requisite for a duty in all cases. This carries with it the risk of attribution of disproportionate significance to what may be no more than inconsequential circumstances.[22]
[22]Tame 394 [225].
There is another element that needs to be established in the course of determining the existence of a duty and that is that the nature of the risk which must be foreseeable. It is not just the risk of psychological upset – it must be a recognisable psychiatric injury. As Gummow and Kirby JJ said in Tame:
However, the concept of "normal fortitude" should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of "normal fortitude" is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt. Where the plaintiff's response to the defendant's conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it. Thus, as Pound observed in 1915, where a putative tortfeasor "so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way".[23] (Emphasis added)
[23]Tame 385[201].
This proposition was subsequently endorsed in Koehler v Cerebos (Australia) Ltd[24] where the High Court said:
In Tame v New South Wales; Annetts v Australian Stations Pty Ltd, the Court held that "normal fortitude" was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.[25]
[24](2005) 222 CLR 44.
[25]Ibid 57 [33] (McHugh, Gummow, Hayne and Heydon JJ).
It follows from the above that the consideration of whether Mrs Birti was owed a duty by one or other of the defendants is no simple exercise. It will require consideration by the trial judge of a number of factual questions concerning the nature of Mrs Birti’s psychological reaction and the circumstances in which it was suffered.
Whilst the foreseeability inquiry as to the nature of the reaction (i.e. recognisable psychiatric injury) is not necessarily dependent upon the particular plaintiff’s reaction, it is inevitable that a plaintiff will lead evidence that he or she had suffered a recognisable psychiatric injury so as to sheet home an argument about its foreseeabiltiy. Indeed Mr Armstrong, who appeared for Mr Merceica and Ms Coombes on this application, indicated that such evidence would be called on their behalf in relation to claims for psychiatric injury. Inevitably, it seems to me, Mrs Birti will need to lead similar evidence as to her own reaction and the diagnosis.
The analysis of the evidentiary relationship between concepts of breach of duty and causation was explained by the New South Wales Court of Appeal in Panagiotopoulos v Rajendram:[26]
Hayne J further explained in Modbury Triangle Shopping Centre Pty Ltd v Anzil, in a passage which his Honour repeated in Tame v New South Wales, asking, as to the facts in a particular case, “whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff’s allegations of breach and damage must depend”. That is not to say that questions of breach and of causation may not require separate consideration, or indeed be determinative in a particular case, but rather that each must be addressed in its specific factual context and the interrelationship recognised.[27]
[26][2007] NSWCA 265.
[27]Ibid [12] (Basten JA with Tobias and McColl JJA in agreement).
The end result here is that questions of causation (in the sense that the wrongful act was a necessary condition of Mrs Birti’s psychiatric reaction) is intimately bound up in the determination of the duty of care point. It would be impractical to try and deal with causation as a separate issue to that of the existence of duty and breach. In addition, the evidence would almost certainly be duplicated in any putative jury trial and there is the risk, albeit remote, of inconsistent verdicts being reached.
Accordingly, questions of liability and causation cannot be split and should be resolved by the trial judge. However, the question of assessment of damages (if that point be reached) is a different matter. In my opinion, given Mrs Birti’s manifest desire to seek a trial by jury, this requires serious consideration. But for the existence of the group proceeding and the necessity for common issues to be tried at the same time Mrs Birti would, as I have already said, have been in a reasonable position to maintain that her claim in its entirety should have been heard by a jury sitting in Wodonga.
The point then is whether there is a sufficiently powerful reason to dispense with a jury trial on the assessment of damages.
On its face there is no good reason for a jury not to try this issue. This is not a complex task; it will not be a protracted trial. Assessment of damages in personal injury cases is the bread and butter of civil juries, particularly in circuit courts. Moreover, if the group proceeding is successful, there will in all likelihood be individual assessments of the damages claims of the group members who sustained personal injury (be it physical or psychiatric).
The defendants, however, submitted that there are two factors which militate against making an order on this point. First, the duplication of evidence. Mrs Birti will, at the joint trial, on the liability and causation issues, give evidence as to the nature and effect of the injuries upon her. It is also likely that psychiatric evidence will be called on her behalf at that time but limited to establishing a recognisable psychiatric injury. It was said by the defendants that it would be preferable for the trial judge having heard that evidence to deal with the question of assessment of damages (if that position be reached). Secondly, it may be premature to make any order concerning trial by jury at the present time. Rather it should be left to the trial judge to determine what is the appropriate approach.
I do not accept that either consideration should, at least on the state of the proceedings at the present time, affect Mrs Birti’s entitlement (admittedly partial) to a jury trial of the quantum of her personal injuries claim if liability and causation are resolved favourably to her. Neither of the considerations advanced by the defendants is persuasive. Here there is a “clear line of demarcation” between the assessment of damages and that of liability and causation.[28] The duplication of evidence will be relatively minor and, if there is a change in the circumstances relevant to the separate question of assessment of damages, then the trial judge will be able to make further orders.
[28]Dunsten v Sinmie & Co Pty Ltd [1978] VR 669 671 (Young CJ and Jenkinson J).
I propose to order that this part of Mrs Birti’s claim be heard before a judge and jury, subject to the trial judge being satisfied at the conclusion of the trial on the liability and causation issues that this remains an appropriate course
Orders
1.Subject to Order 2, the trial of this proceeding be tried without a jury.
2.Subject to further order, the trial of the question of the assessment of damages of Lena Birti in relation to psychiatric injury be tried by a jury at a time and place to be fixed by the judge hearing the trial of this proceeding.
3.Costs be costs in the cause.
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