Brotherhood of St Laurence v McCabe
[2013] VSCA 257
•20 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0197
| BROTHERHOOD OF ST LAURENCE | Appellant |
| v | |
| DENELDA McCABE | Respondent |
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| JUDGES | WARREN CJ, OSBORN and SANTAMARIA JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 16 September 2013 | |
| DATE OF JUDGMENT | 20 September 2013 | 1st revision: 20 September 2013 - catchwords |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 257 | |
| JUDGMENT APPEALED FROM | McCabe v Brotherhood of St Laurence [2011] VCC 1423 (Judge Kings) | |
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PERSONAL INJURY – Jury trial – Appeal – Previous decision giving rise to an estoppel – Objection to remarks made by counsel for plaintiff below in final address about effect of estoppel – Counsel for defendant sought direction or alternatively for jury to be discharged without verdict – Trial judge gave direction to disregard in response to the objection – Trial judge charged jury as to legal effect of the estoppel – Exception not taken to direction as to legal effect of the estoppel – Whether trial miscarried because of the remarks in question – Whether error in failing to discharge jury – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr S O’Meara SC with Mr R Kumar | Hall & Wilcox Lawyers |
| For the Respondent: | Mr A Ingram with Mr G Worth | Melbourne Injury Lawyers |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Osborn JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.
OSBORN JA:
Introduction
In the course of the trial before a jury of a claim for damages for personal injuries, controversy arose over the effect of a previous decision of the County Court in which it had been held the respondent (‘plaintiff’) was injured in the course of her employment in the manner and on the dates alleged in the common law proceeding.
In commencing his final address counsel for the plaintiff submitted to the jury that the previous decision gave rise to an estoppel about which the trial judge would give a direction and which would effectively decide against numerous of the contentions of the appellant (‘defendant’) and cut across the evidence of Dr Stern, a psychiatrist upon whom the defendant relied.
Objection was taken to these remarks in the absence of the jury and argument was conducted over the course of an afternoon. Upon recommencement of the hearing before the jury the following morning the trial judge directed the jury to disregard what counsel for the plaintiff had said the previous day. Counsel then recommenced his final address.
The trial judge subsequently directed the jury as to the legal effect of the estoppel in question substantially in accordance with a formulation agreed between counsel.
The jury found for the plaintiff and awarded her substantial damages for pain and suffering, past loss of earnings and loss of future earning capacity.
The defendant now appeals the jury’s verdict on the basis that the trial miscarried because of the comments made by counsel for the plaintiff at the outset of his initial address.
For the reasons I shall elaborate the appeal must fail. In summary, those reasons are:
(a) The direction to disregard counsel’s comments was directly responsive to the primary submission of counsel for the defendant as to the course the trial judge should take.
(b) The direction was simple and easily comprehensible.
(c) There was no high degree of need to discharge the jury at this point in time. In particular, the comments made by counsel for the plaintiff were not so irresistibly prejudicial or irremediably confusing as to mean that the case could not fairly proceed.
(d) The core direction as to the effect of the estoppel was in terms agreed by the defendant.
(e) Again, that direction was simple and readily comprehensible.
(f) The jury had previously been instructed that they were bound by the judge’s directions on questions of law.
(g) It must be assumed that the jury acted in accordance with the judge’s directions.
(h) No exception was taken to the form of the direction to disregard or to the form of the judge’s charge on the estoppel.
(i) The defendant is in consequence in any event bound by the forensic choice by it not to take exception to the cumulative adequacy of the judge’s directions to disregard counsel’s opening comments and as to the effect of the estoppel.
The background facts
The plaintiff was formerly employed by the defendant between August 1994 and 2 January 2008 as a personal care attendant at hostel for the elderly in Clifton Hill.
The hostel was a three storey building with 43 beds. On the night of 19 September 1999 the plaintiff was the only staff member on duty. In the course of the evening she was surprised by an intruder in circumstances which she found terrifying. As a result she suffered a marked psychiatric injury.
She continued working but remained stressed by the lack of security and lack of support she received from management. In response to her concerns the defendant installed new external lighting but took no further measures.
The plaintiff herself placed motion detectors in the building, brought two formidable dogs to work with her, tried to secure a door with a piece of dowling and placed great reliance on her husband to back her up when necessary.
On arrival for work on New Year’s eve 1999 the plaintiff found a notice which gave directions as to what to do in the case of a power failure. It stated there was a generator at the rear of the kitchen freezer, power leads in the manager’s office and fuel for the generator in the garden shed. In addition to these measures the residents had been given torches. The plaintiff was given no other instruction as to how to cope with the potential consequences of the millennium bug. Further, she had never seen the garden shed or used a generator before. She became extremely stressed in the course of the night. She worked for another night but then felt unable to continue and has not worked since.
The plaintiff had to confront a legal complication in bringing common law proceedings against the defendant. The 19 September 1999 incident fell within the so-called ‘black hole’ which was created legislatively between 12 November 1997 and 20 October 1999 (see ss 135A(1) and 134AB(1) of the Accident Compensation Act 1985 as amended) in respect of claims concerning which an injured worker may make application for leave to bring common law proceedings for the recovery of damages.
Before instituting proceedings in respect of injury suffered between 20 October 1999 and 1 January 2000 however the plaintiff brought another claim in the County Court.
The plaintiff claimed compensation pursuant to s 98C of the Act[1] in respect of injury arising out of or in the course of her employment:
[1]For non-economic loss.
(a) on or about 19 September 1999;
(b) between 19 September 1999 and 31 December 1999; and
(c) on 31 December 1999/1 January 2000.
The defendant’s insurer accepted the claim in respect of 19 September 1999 but rejected the claim in respect of the periods between 19 September 1999 and 1 January 2000.
On 20 April 2007 his Honour Judge G D Lewis determined that the plaintiff’s ongoing employment after 30 September 1999 and 30 December 1999 and 1 January 2000 caused an aggravation of her pre-existing psychiatric condition which satisfied the definition of injury under s 5 of the Act.
His Honour made the following specific findings of fact:
(1)As a result of an encounter with a burglar on the premises of the firstnamed defendant on 19 September 1999, the plaintiff suffered a severe psychiatric reaction which, at the date of this hearing, manifested itself in the form of post-traumatic stress disorder.
(2)When she returned to work in late September 1999, the plaintiff continued to work alone in unchanged conditions as the night supervisor at the hostel. This in itself was a most undesirable situation and the plaintiff's continuing stress is evidenced by her own attempts to improve security by introducing motion detectors, bringing two formidable dogs to work with her, trying to secure a door with a piece of doweling and placing great reliance upon her husband to give her support in her work environment.
(3)The reality was that, apart from what the plaintiff effected herself, the only change made to improve security was to place visible lights on the outside of the hostel which gave the false impression that a security system was in effect.
(4)She continued to work in what was, for her, a most hostile environment. I find that whatever discussions took place in respect of professional counselling, for whatever reasons, was never followed up and the only counselling which the plaintiff received was as a result of her husband's efforts through his own employment.
(5)I accept the evidence of both Mr Simmons and the treating psychologist, Mr Nightingale, and the consultant psychiatrist, Dr Ivers, that the plaintiff's return to work with the firstnamed defendant was likely to have permanently aggravated her condition and led to it becoming chronic. I find that the repeated exposure of the plaintiff to her workplace situation where the incident of 19 September 1999 occurred so soon after the initial trauma resulted in an aggravation of her psychiatric condition. I find that the weeks spent in her employment as the night supervisor during the remainder of 1999 significantly contributed to the chronicity of her condition and compounded the effects of the original trauma. Perhaps the psychologist, Mr Radley, best summed it up in his report of 22 April 2004 when he observed:
During this 3½ month period, Ms McCabe was left to continue working in the nursing home at night by herself. She was left in charge of the nursing home and the elderly patients without any added security, without any changes in the hospital procedures and without being provided with any professional psychological treatment. In effect, Ms McCabe was left to her own resources to try to cope with the quite obvious severe psychological reactions she was experiencing as a result of the incident on 19 September 1999.
(6)I also find that the events surrounding the plaintiff's employment by the firstnamed defendant on 31 December 1999 also caused an aggravation of the plaintiff's pre-existing psychiatric condition. The plaintiff, who was to have sole responsibility for the care of the patients on that night, had not worked for some three days prior to New Year's Eve. On arrival at work, it is common ground that, for the first time, she found a notice on the noticeboard which was tendered. This notice can speak for itself, but it made reference to what to do in the case of power failure overnight. It made reference to a generator at the rear of the kitchen freezer, power leads in the manager's office and fuel for the generator in the garden shed. I accept the plaintiff's evidence that she was utterly bewildered by this notice, and that bewilderment gains support from the evidence of Ms Hossack, who conceded that the generator had probably only been obtained on the afternoon of 31 December 1999.
(7)I find that there had been a lack of communication with the plaintiff not only as to her responsibilities on 31 December 1999, but in fully acquainting her with what she had to do if, indeed, the computer problems anticipated occurred.
(8)I find that the plaintiff was faced with a situation where she was given excessive responsibility on a night when anything could have happened without any proper direction or training as to how she should cope. I do not accept the contention of the defendant that the plaintiff's concerns about the millennium were something of an afterthought and did not loom large in her thinking until some years later. Although there are many reports from psychiatrists and psychologists in the Court Books which have been tendered, it is difficult to go past the most contemporaneous report of all, that of Dr Stern, who assessed the plaintiff's psychiatric condition some 20 days after she ceased work. In the history he took, he has recorded ‘She worked on New Year's Eve, she felt angry and upset that there were inadequate safety procedures. She was on duty by herself. The residents had emergency torches in case of power failures. She worked for another night, but felt unable to continue …’. Dr Stern had seen the plaintiff on the day that she in fact resigned from her employment with the firstnamed defendant.
(9)I find generally that the plaintiff's ongoing employment after 19 September 1999 and 30 December 1999 caused an aggravation of her psychiatric condition which satisfies the definition of ‘injury’ in s.5 of the Act.
(10)I find that the stressors associated with the plaintiff's employment on 31 December 1999 also aggravated her pre-existing psychiatric condition, and that aggravation also satisfies the definition of ‘injury’ in s.5 of the Act.[2]
[2]McCabe v Brotherhood of St Lawrence & Anor [2007] VCC 471, [18] (emphasis in original).
In turn his Honour made a declaration in the following terms:
The Court declares that the plaintiff suffered injury, being aggravation, exacerbation and deterioration of pre-existing mental/psychiatric injury where the plaintiff's employment with the firstnamed defendant (i) throughout the course of her employment and in and between 20 September 1999 and 30 December 1999; and (ii) on or about 31 December 1999 and 1 January 2000 was a significant contributing factor to that aggravation, exacerbation and deterioration, and that the defendants have liability in relation to claims arising from those injuries.[3]
[3]Ibid [19].
On 26 March 2001 the plaintiff commenced a proceeding in the County Court claiming common law damages for personal injury suffered between 20 October 1999 and 1 July 2000.
Despite the decision of Judge Lewis the defence[4] filed in the proceeding denied that the plaintiff had suffered injury on and after 20 October 1999.
[4]Amended defence filed pursuant to order of Judge Davis, 3 July 2009.
It further denied any such injuries were caused by the negligence of the defendant. It also denied the plaintiff had suffered loss and damage and in the further alternative alleged contributory negligence.
In my view the blanket denial of injury contained in the defence was a material contributor to the subsequent complications which arose at trial concerning the effect of the decision of Judge Lewis. The pleading did not articulate the case which the defendant in fact sought to present at trial.
In the course of opening the plaintiff’s case, counsel for the plaintiff foreshadowed that there was a legal matter about which the trial judge would provide the jury with instructions later in the trial.
The matter proceeded into evidence and oral evidence was called from some 18 witnesses including five psychiatrists, a psychologist and a counsellor. Medical reports from a further four psychiatrists and three psychologists and two general practitioners were also read into evidence. The jury were thus provided with a wealth of medical opinion bearing on the causation and damage issues arising in the case.
On day 5 of the trial there was a reference to transcript from the previous County Court proceedings in the course of cross-examination by senior counsel for the defendant. The jury sought clarification as to what was meant by ‘previous transcript’ and the trial judge gave a direction as to the use of prior inconsistent statements.
On day 7 of the trial counsel for the plaintiff foreshadowed that he would ultimately submit that there should be a direction to the jury that the Court had already decided the plaintiff had suffered a compensable injury between 20 October 1999 and 1 January 2000.
On day 10 of the trial counsel for the plaintiff submitted that propositions had been put on behalf of the defendant which were inconsistent with the previous decision that injury had occurred in the relevant period and asked that the judgment of Judge Lewis be provided to the jury. Senior counsel for the defendant submitted that the previous finding was consistent with there being a psychiatric injury caused on 19 September 1999 with events after 20 October 1999 leading to a small degree of aggravation and small permanent impairment. He also submitted that it was open to the defendant to argue that the plaintiff’s total loss of earning capacity was due entirely to the incident on 19 September 1999. He further submitted that the defendant was only estopped with respect to the ultimate issue before his Honour Judge Lewis, and the findings by Judge Lewis in respect of aspects of employment giving rise to the claimed injury did not give rise to any estoppel. Counsel for the plaintiff informed the trial judge that his initial ‘impression’ was that the jury should be directed in terms of the findings of Judge Lewis. No ruling was made at that point in time as to how the jury would be directed.
On day 12 of the trial the question of the effect of the estoppel was raised again. Counsel for the plaintiff submitted that the jury should be directed in respect of issue estoppel prior to the defendant opening its case. He submitted that the cross-examination of the plaintiff’s witnesses had been inconsistent with the estoppel. Senior counsel for the defendant again submitted that it was open to the defendant to argue that any incapacity for employment was due to injury arising from the injury on 19 September 1999, although there was some small aggravation of a mental impairment arising thereafter. Senior counsel for the defendant submitted and counsel for the plaintiff accepted that insofar as the previous decision was relevant the jury would only need to be informed of the finding of Judge Lewis that the plaintiff had sustained injury between 20 September 1999 and 31 December 1999 and also between 31 December 1999 and 1 January 2000.
On day 14 of the trial counsel for the defendant opened the defence case. In the course of opening the defence case senior counsel stated:
Now, there’s a slight complication with this case and the complication is this, that there are two systems of compensation that are side by side if you like. There’s a WorkCover no fault situation and under a WorkCover no fault situation the plaintiff has received an impairment award for an aggravation, an impairment aggravation during the period after the burglary up to and including the night of 31 December. We’ll be calling evidence consistent with that that, yes, remaining at work after 19 September probably – in the situation where the burglary occurred – did aggravate her condition, such that she’s entitled to an impairment, a no fault impairment. But we say in this case – which is a common law case, a negligence case – that it hasn’t resulted in any significant incapacity loss.
This statement was at best opaque. The reference to an impairment award in a no-fault situation did not explicitly admit the fact of injury. The further statement that ‘it hasn’t resulted in any significant incapacity loss’ was also unclear.
Soon after senior counsel further stated:
So that in terms of the damage part, in case you’ve said that there is a breach, the psychiatric evidence that we’ll call is along the lines that the post traumatic stress disorder which had disabled her up to this point is being caused, in terms of – you might remember references to DSM-IV which is a criteria for assessing post-traumatic stress disorder. You’ve got the serious life threatening event being the burglary and that is the reason why she has been so incapacitated since that time.
Certainly remaining at work, our evidence will be it may have aggravated that condition rather than going off but not in a way that has added to an incapacity that wasn’t already caused by the burglary incident.
Whilst senior counsel might have drawn a bright line in his own mind between ‘impairment’ and ‘incapacity’ this statement was also opaque. In particular it appeared to attribute the ‘post traumatic stress disorder which had disabled her up to this point’ strictly to the initial traumatic event.
On day 15 of the trial counsel for the plaintiff advised the trial judge that he had prepared a proposed direction to the jury in relation to issue estoppel. Senior counsel for the defendant agreed to the form of the proposed direction on the following day. It was in the following terms:
I direct you, as a matter of law, that you are bound by this finding, namely that the plaintiff has suffered a permanent impairment as a result of an aggravation, exacerbation or deterioration of a pre-existing mental or physical injury in the course of her employment with the defendant in the period between 20 September 1999 and 31 December 1999, and in the period between 31 December 1999 and 1 January 2000, and that employment during those periods was a significant contributing factor to the aggravation, exacerbation or deterioration.
In turn in final address senior counsel for the defendant said:
So she goes off herself, gets the counselling, goes off herself to Dr Sia, but she’s not really coping. It’s interesting – and [counsel for the plaintiff] will put this – on one hand, she’s improving between October 99 and 31 December 99 and then Y2K tips her over. If that’s right, if she’s improving, it sounds like we’re doing the right thing keeping her at work and helping her get back on the horse. So where’s the injury?
No, wait a minute. There’s a permanent injury there. There’s a permanent aggravation during that time and we have to accept that remaining at work, with hindsight, probably did aggravate her condition. She’s back in the job where the burglar got in and she’s there every night and she’s apprehensive. We’ll have to accept that.
She’s entitled, in workers’ compensation terms, for an aggravation of an impairment, but, we say, not to this incapacity that she says that she’s entitled to, because she’s lost that capacity for work from the burglary incident, … and that’s not part of this claim, and that the aggravation, ‘Yes, without the aggravation, we would have been working,’ we submit to you, no, that is against the flow of evidence, against everyone’s evidence and that is for later on when we’re bringing this claim.
Subsequently he reiterated that the defendant’s case was that the plaintiff was ‘totally incapacitated to the extent you accept by the burglary incident and the post-traumatic disorder. Any impairment aggravation doesn’t mean that she wouldn’t have been incapacitated anyway because of the burglary related post-traumatic stress disorder. So there is no ongoing incapacity relating to Y2K or in that two or three month period before that.’
Whilst this address may be understood with hindsight to involve careful distinctions between elements of the plaintiff’s claim, it did not clearly disentangle the defence position and in particular distinguish between the defendant’s case concerning permanent impairment causing pain and suffering and the case concerning permanent impairment causing loss of earning capacity.
The need to do so must be understood in the context of the High Court’s decision in Purkess v Crittenden[5] as to the shifting evidentiary onus in cases of a common law claim for damages for aggravation of a pre-existing injury:[6]
We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake[7] was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
[5](1965) 114 CLR 164, 168 (Barwick CJ, Kitto and Taylor JJ).
[6]Ibid 168 (citation in original).
[7](1960) 108 CLR 158.
Counsel for the plaintiff commenced his address to the jury on the morning of day 17 of the trial. He told the jury that the direction to be given by the trial judge in respect of issue estoppel would effectively decide against numerous of the contentions of the defendant and cut across the evidence of Dr Stern in the following terms:
There’s one very important matter in this case which I didn’t address in the opening with you but is of significant context when you come to your decision in this case. It’s a matter in respect of which Her Honour will direct you as a matter of law. It is a concept in law which is known as estoppel or issue estoppel.
The concept means that where a particular issue has been decided between the same parties in another proceeding, that issue cannot be re-litigated in a later proceeding. The attitude of the defendant and its insurer for the earlier proceeding that was heard by Judge Lewis, was that 19 September 1999 was the only cause of this plaintiff’s psychiatric condition. A proceeding took place, as the plaintiff gave you in evidence, to determine whether she could come here to sue and bring this case that you’ve been hearing over the past three and a bit weeks.
I didn’t open the issue of estoppel because I wasn’t quite sure the course the case would take, but Mr Brookes cross-examined the plaintiff on the basis of evidence which had been given in the earlier case and we were advised at an early point in time that it would be sought to tender the evidence given by Ms Hossack in the earlier case on the basis of her physical infirmity now to come and give evidence.
So it became increasingly a matter where – and some ruling on issue estoppel would be made. The parties have agreed to the terms of the direction that Her Honour will give. Her Honour will direct you in the following terms. Her Honour will direct you that as a matter of law it has previously been determined that the plaintiff suffered a permanent impairment which was an aggravation, exacerbation or deterioration of a pre-existing mental or psychiatric injury in the course of her employment with this defendant (a) between 20 September 1999 and 30 December 1999 and (b) 31 December 1999 and 1 January 2000 and that employment with this defendant was a significant contributing factor to that aggravation, exacerbation or deterioration.
Now, that direction will effectively decide against numerous of the contentions that my learned friend Mr Brookes has been putting to you in his final address and numerous hypotheses and theories which he propounded to witnesses call[ed] on behalf of the plaintiff over a number of days before you. If you make some comparison of the scope of that direction with the line of cross-examination that was taken, you will see that frequently what was put cuts across the estoppel which is binding upon you.
The final jigsaw in relation to that estoppel comes with the evidence of Dr Stern and you’ve heard my friend just relied, towards the end, on Dr Stern’s evidence. The issue estoppel in fact effectively destroys the opinion that Dr Stern has advanced in his reports and those reports have been used by the defendant or its insurers as the basis of paying weekly compensation related only to 19 September 1999.
…
Judge Lewis didn’t consider any aspect of negligence which you must find in this case for the plaintiff to succeed. But the estoppel relates to issues of causation of injury and the estoppel prevents, as a matter of law, the defendant arguing that only 19 September 1999 is a cause of the plaintiff’s present condition. The estoppel means that employment in the period that the plaintiff contends for which, as you have heard, we have limited to 20 October 1999 – that’s encompassed in the period that Judge Lewis considered – until 30 December 1999 and secondly, on the millennium eve, 31 December 1999 to 1 January 2000.
Those two periods had caused a permanent injury to the plaintiff by aggravating, exacerbating or deteriorating any pre-existing condition from which she might have been suffering arising from 19 September 1999.
The effect of the estoppel is that the defendant’s case of 19 September 1999 has been judicially overturned.
Prior to lunch senior counsel for the defendant informed the trial judge that he would be applying for the jury to be discharged because of statements made by the plaintiff’s counsel in the course of final address and in particular statements made relating to the effect of the issue estoppel. There was then some argument concerning the consequences of the issue estoppel following which senior counsel for the defendant sought that the jury be discharged or alternatively that there be a direction to ignore what had been said about the estoppel.
After lunch senior counsel for the defendant informed the trial judge that he was seeking a direction that the jury were to disregard the submission from the plaintiff’s counsel concerning the estoppel, or alternatively an order that the jury be discharged without verdict. Argument continued over the course of the afternoon. At the conclusion of the afternoon her Honour indicated she would not be discharging the jury and that what she had to determine was what needed to be done on the following morning to rectify the situation before the trial proceeded further.
On the following morning her Honour ruled that there was an issue estoppel in respect of the injury in issue before her. She further ruled that counsel for the plaintiff should not use terminology such as ‘Dr Stern’s evidence is judicially overturned’. After her ruling she made clear that she required counsel for the plaintiff to start again and not simply proceed with his address. Senior counsel for the defendant renewed the application for a direction that the jury were to disregard what had initially been said. Her Honour ruled that she should give the jury a direction that they should disregard what had been told to them the day before.
After further submissions from counsel for the plaintiff, senior counsel for the defendant again repeated that what the defendant sought was a ruling that the jury were to disregard what was said about the estoppel and that counsel for the plaintiff would start again. Her Honour then foreshadowed the terms in which she would give her direction and added that there was to be no mention of insurers or mention of weekly payments in the course of the address.
Senior counsel for the defendant then said, ‘we agree wholeheartedly with what your Honour has said’. Although this submission may have been intended to be understood as relating only to the last two matters which her Honour had mentioned it must have encouraged the judge to the view that the course she was now proposing was generally supported by the defendant.
When the jury came into court immediately thereafter the trial judge said:
Good morning. Yesterday some legal issues arose. There was considerable discussion about that in the afternoon and I have made rulings in relation to that. What I will tell you is that I am going to ask [counsel for the plaintiff] to recommence because there’s been a break and he had only started for a short period, so I think it’s best that he recommence. I’ll direct you that you disregard what was said yesterday and listen to what is said today – what was said by [counsel for the plaintiff] yesterday, and you are to listen to what he says today. Thank you.[8]
[8]Emphasis added.
The plaintiff’s counsel then commenced a second final address. There had been a full half day’s break since his initial comments and there is no reason to suppose that the second address was not understood as a separate coherent entity.
The terms of the plaintiff’s counsel’s second final address relating to estoppel were not the subject of criticism either at trial or on appeal:
I then discussed with you the concept of estoppel, and I said that that concept is of great importance in this proceeding. Estoppel is a legal concept and it simply means this. Where two parties have had a previous hearing and a question has been decided between them in that hearing, they can’t turn around in a later hearing and undermine the finding that was made in the earlier hearing, and that’s what an estoppel is (indistinct) sometimes it’s called an issue estoppel; it’s directed towards a particular issue.
I explained to you that the issue that it wasn’t directed towards in this case is the issue of negligence. Nothing that happened in that other proceeding was to do with negligence or breach of duty of care. It was concerned with issues of causation, and so that was that issue; that issue estoppel which was dealt with at an earlier point in time.
Now, the agreed direction which you will be given in relation to estoppel in this case – and it will be a direction which is given to you as a matter of law and accordingly you are bound to apply it in your consideration – is that as a matter of law it has previously been determined that the plaintiff, Ms McCabe, suffered a permanent impairment by way of an aggravation exacerbation or deterioration of a pre-existing mental or psychiatric injury – and the pre-existing comes from 19 September 99 obviously – in the course of her employment with the defendant, firstly, between 20 September 1999 and 30 December 99, and, secondly, on or about 31 December 99 and 1 January 2000, and that the employment with the defendant was a significant contributing factor to that aggravation, exacerbation or deterioration.
So that’s the estoppel against the evidence in which this case is conducted. We say that by reason of the estoppel it’s not open for the defendant to argue that there was anything other than a further psychiatric injury by way of the aggravation, exacerbation or deterioration. It’s not open to argue that there was other than a further psychiatric injury in the period 20 October 1999 – I know that the estoppel actually goes back to 20 September, but we can’t rely on that month because of the way the law was then – but from 20 October 99 to 30 December, and then again from 31 December to 1 January.[9]
[9]Emphasis added.
Subsequently counsel for the plaintiff sought a specific ruling from her Honour as to whether it was appropriate for him to say that the opinion of Dr Stern ‘cuts across the estoppel which is binding upon the jury’. Her Honour ruled that if he did so that she would correct this in her charge. For reasons I shall explain below the breadth of this ruling was unduly favourable to the defendant. Nothing further was said on this issue by counsel for the plaintiff.
In the course of her charge to the jury her Honour ultimately directed them with respect to the estoppel as follows:
In a previous case – you heard about this previous case; a lot of mention has been made about this – in the previous case, which was heard, not by me but by another judge, involving the parties, a finding was made. I direct you, as a matter of law, that you are bound by this finding, namely, that the plaintiff has suffered a permanent impairment as a result of an aggravation, exacerbation, or deterioration of a pre-existing mental or physical injury in the course of her employment with the defendant in the period between 20 September 1999 and 31 December 1999, and in the period between 31 December 1999 and 1 January 2000, and that employment during those periods was a significant contributing factor to the aggravation, exacerbation or deterioration. I remind you a finding of injury can in no way be equated to a finding of the issues required in negligence.
To the extent that [counsel for the plaintiff] told you of the finding in the earlier case, that can have no meaning other than that an injury was found during that period. That finding is in no way evidence of negligence. It is relevant and only relevant if you come to a finding of negligence. If you find negligence, then you are bound by this finding with respect to causation of injury.
No exception was taken to the terms of this direction. In my view the statement that ‘[t]o the extent that [counsel for the plaintiff] told you of the finding in the earlier case, that can have no meaning other than that an injury was found
during that period’ was a material reinforcement of her Honour’s agreed direction on the effect of the estoppel.
The failure to discharge the jury
Grounds 1 and 2 of appeal are as follows:
1The trial of the action miscarried as a result of the first address of counsel for the plaintiff in that, inter alia counsel for the plaintiff erroneously and confusingly referred the jury to 'issue estoppel' and 'estoppel', in connection with which it was submitted (inter alia)-
(a)the estoppel 'effectively decide[s] against numerous of the contentions that [senior counsel- for the defendant] has been putting to [the jury] in his final address' (T1518.18);
(b)the estoppel effectively decides against 'numerous of the hypotheses and theories which [senior counsel for the defendant] propounded to witnesses call[ed] on behalf of the plaintiff';
(c)cross-examination by the defendant's counsel frequently cut across the estoppel;
(d)‘the issue estoppel in fact effectively destroys the opinion that Dr Stern has advanced';
(e)‘the estoppel prevents, as a matter of law, the defendant arguing that only 19 September 1999 is a cause of the plaintiff's present condition';
(f)the effect of the estoppel is that the defendant's case of 19 September 1999 has been judicially overturned'.
2The learned trial judge erred in failing to discharge the jury on application made by senior counsel for the defendant.
It is submitted on behalf of the defendant that as its case was developed at trial it was not inconsistent with the estoppel. In particular the fact of the estoppel did not prevent the defendant from arguing:
(a) that the major component of the plaintiff’s ongoing psychiatric disability was not caused by the post 19 September 1999 events; and
(b) in particular the effect of the initial injury (and not subsequent events) was such as to permanently incapacitate the plaintiff in terms of loss of earning capacity.
I accept that, contrary to the suggestions made to the jury by counsel for the plaintiff, senior counsel for the defendant did not propose numerous contentions, hypotheses or theories which were inconsistent with the estoppel, either to witnesses in cross-examination or to the jury in final address.
Nor could it fairly be said that the effect of the estoppel was that the defendant’s ‘case of 19 September 1999’ had been judicially overturned.
On the other hand, I accept that Dr Stern’s evidence was in part inconsistent with the estoppel. Whilst the defendant sought to rely on Dr Stern’s evidence to make out a case consistent with the estoppel Dr Stern himself made clear on a number of occasions in the course of his evidence that it was his opinion that the plaintiff’s ongoing psychiatric condition was caused by the 19 September 1999 incident and that subsequent aggravations of the condition caused by that incident did not cause permanent impairment.[10]
[10]For example: ‘Question: Can I suggest to you that it would have increased her anxiety to a point where she was effectively tipped over a psychiatric edge? --- I think if you were talking about the Y2K, in the end there wasn’t a power failure, I assume, so it was apprehension about something which was predicted, didn’t happen, so there would have been anxiety about it happening. I agree in someone who is vulnerable, it would have increased her anxiety. The fact that it didn’t happen I think would have meant that it wouldn’t have caused a longlasting or permanent psychiatric effect.’
‘So I agree that those events would have aggravated her anxiety, but I don’t think that they were events which changed the diagnosis or the prognosis in that they determined a more severe chronic psychiatric disorder. I think that they were definitely temporary aggravations, but I don’t think it is likely that they caused a permanent change in the course of what was going to happen, and particularly because there had been improvement when I saw her …’
Further, the matter identified in appeal ground 1(e) involved no error. The estoppel did prevent the defendant arguing that ‘only 19 September 1999 is a cause of the plaintiff’s present condition.’ It follows that although the comments the plaintiff’s counsel made exaggerated the consequences of the estoppel in part they did not do so to the extent the defendant now claims.
In evaluating the effect of the exaggeration in issue it is significant that counsel for the plaintiff accurately foreshadowed the terms of the direction the trial judge would give as to the effect of the estoppel. It is also significant that the two penultimate paragraphs from counsel’s address in the passage quoted above were also accurate in summarising the effect of Judge Lewis’s decision from the point of view of the jury.
In my view when these matters are put together the jury was not fundamentally misled as to the legal effect of the estoppel and the exaggerated elements of the general comments by counsel as to the consequences of that effect were susceptible to correction.
What the defendant ultimately sought at trial was a direction from the judge requiring the jury to disregard what the plaintiff’s counsel had initially said about the effect of the estoppel. The matter was argued on the basis that discharge of the jury was an alternative to such a direction. It cannot seriously be contended that there was a high degree of need to discharge the jury at this point in time. Counsel for the plaintiff’s address had commenced for only a short period of time.
Moreover, the trial had already run for many weeks and the evidentiary issues confronting the jury were capable of clarification within the context of the case as a whole. The real question was simply whether the effect of the estoppel could be made clear by appropriate direction to the jury. In my view there can be no doubt that it was a matter capable of further explanation and direction.
The legal effect of the estoppel was an issue in respect of which the judge was in a position to give binding directions.
In my view the initial comments of counsel about estoppel were neither so irresistibly prejudicial or so irremediably confusing as to be incapable of rectification by direction.
Subject to adequate directions from the judge this was not a case where the totality of the assertions and complaints made by the plaintiff’s counsel was likely to have prejudiced the jury unfairly against the defendant giving rise to a real risk that the jury was distracted from the proper performance of its duties.[11]
[11]Cf Smout v Smout [1989] VR 845; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1.
As I have said following the objection made by senior counsel for the defendant the jury were directed by the judge to disregard the initial address containing these comments and were subsequently directed by the judge as to the substantive effect of the estoppel.
The system of trial by jury is not premised upon the proposition that a jury will hear nothing prejudicial to a party. Rather, it assumes that save in exceptional circumstances juries will be capable of deciding matters (both civil and criminal) in accordance with directions by the trial judge despite hearing matters prejudicial to a party in the course of the trial.
In Reza v Summerhill Orchards Ltd[12] Warren CJ, Harper JA and Kyrou AJA summarised the relevant principles as follows:[13]
It must also be borne in mind that, in both criminal and civil jury trials, juries are assumed to understand and comply with directions from the trial judge.[14] The capacity of a jury to decide a case in accordance with the law and the directions of the trial judge should not be underestimated.[15] The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.[16] It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law – that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations – juries comply.[17] The capacity of juries to do so is critical to ensuring that proceedings are fair.[18]
[12][2013] VSCA 17.
[13]Ibid [50] (citations in original).
[14]R v Mokbel (2009) 26 VR 618, 638 [90] (‘Mokbel’).
[15]Dupas v The Queen (2010) 241 CLR 237, 247 [22], 248-9 [29], 251 [38] (‘Dupas’).
[16]Dupas (2010) 241 CLR 237, 247 [26]; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473, 477 [15]; Mokbel (2009) 26 VR 618, 638 [90].
[17]General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 84 [54]; Dupas (2010) 241 CLR 237, 248-9 [28]-[29].
[18]Dupas (2010) 241 CLR 237, 248-9 [29].
In the present case, there is no reason to suppose the jury did not comply with the judge’s directions.
The adequacy of the directions
Ground 3 of appeal asserts that the trial judge failed to give the jury any adequate direction to disregard the initial submissions made by counsel for the plaintiff in respect of issue estoppel. The complaint made is that the direction to disregard was a general one relating to what had previously been said rather than one directed to what was said about the issue of estoppel in particular.
In my view the direction to disregard was clear and any material elaboration of it would have required some highlighting or revisiting of the very comments to which the defendant objected. In addition the adequacy of the initial direction to disregard must be evaluated in part by reference to the further course of the trial including the fact that there was no error in the second address of the plaintiff’s counsel and the further fact that the judge subsequently charged the jury in unambiguous terms as to the relevant effect of the estoppel.[19] I do not accept that taken together and in context the judge’s directions were inadequate.
[19]Wodonga Regional Health Service v Hopgood [2012] VSCA 326.
Because the direction to disregard was ultimately to be understood in the context of the judge’s summing up and directions on the law and was materially buttressed by that summing up and those directions, the failure of the defendant to take exception to the adequacy of the judge’s directions as a whole raises a further problem for the defendant.
Although it follows from what I have already said that it is not surprising counsel for the defendant made no further application on this issue after the charge because there was in my view no proper basis for the taking of further exception, nevertheless if I am wrong in my primary conclusions and the judge’s directions were deficient the defendant was bound to take issue with the way the case was left to the jury. The alleged deficiency remained curable either by further direction or if that were thought inadequate by discharge of the jury.
In Butler v Rick Cuneen Logging Pty Ltd[20] Winneke P with whom Charles and Callaway JJA agreed stated the relevant general principles as follows:[21]
I am conscious, however, of the fact that no specific objection was taken in respect of the matters to which I have referred following the learned judge's charge. This was a significant omission. Although the failure to take objection at the trial will not always be fatal to the outcome of an appeal, it is a factor which an appellate court will take into account in considering whether the point of which complaint is made on appeal had the weight or moment which it was said to have in the atmosphere of the trial. The trial judge's task in charging a jury, whether criminal or civil, is a difficult one. He or she is entitled to expect that counsel will mention any matter by way of exception which is seen to be of moment and likely to be the subject of criticism on appeal. This is particularly so if the matter is perceived to be capable of cure by redirection. It is only by cooperating in this way that the trial judge and counsel can effectively guard against substantial miscarriages of justice.
Notwithstanding that the failure to take exception is a significant factor which an appellate court will take into account in determining whether a verdict should be set aside, it is not, as I have said, necessarily fatal to such a result. The matter cannot be the subject of hard and fast rules because, in the long run, the court's jurisdiction to order a new trial must depend upon the demands of justice.[22] However, in my view, the burden lies upon the party who has failed to take the objection at trial to show that there has been a substantial miscarriage and, in determining whether that burden has been discharged, an appellate court will be entitled to regard what was omitted to be done at the trial as an important consideration affecting its jurisdiction.[23]
[20](1997) 2 VR 99.
[21]Ibid 104 (citations in original).
[22]See General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, 242-3; Rukavina v Incorporated Nominal Defendant [1992] 1 VR 677, 683; Coleman v Latrobe University (unreported, Court of Appeal, 8 September 1995), 21.
[23]See Rukavina v Incorporated Nominal Defendant [1992] 1 VR 677, 683
Whilst it is true that the Court may set aside a verdict notwithstanding the failure of counsel to take exception or seek a direction or apply for a discharge of jury if it is satisfied that there has been a miscarriage of justice,[24] nevertheless the basic principle remains as stated by Barwick CJ in General Motors-Holden's Pty Ltd v Moularas:[25]
[24]Fitzpatrick v Walter E Cooper Pty Ltd & Anor (1935) 54 CLR 200; Butler v Rick Cuneen Logging Pty Ltd(1997) 2 VR 99; Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478, 515 [125]-517 [127].
[25](1964) 111 CLR 234, 242.
Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is
not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement.
The general rule must be given substantial effect if parties are to be prevented from running one case before the jury at first instance and another on appeal. If this were allowed to happen the trial at first instance would be rendered effectively nugatory.[26]
[26]Coulton v Holcombe (1986) 162 CLR 1; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 401; Water Board v Moustakas (1985) 180 CLR 49; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867; Whisprun v Dixon (2003) 77 ALJR 1598.
Ultimately the defendant’s case comes down to a criticism of the words used by the judge in giving a direction at one point in the trial. If at the end of the charge the defendant’s position was that a significant point still had not been made clear to the jury then this should have been the subject of exception. There was nothing about the case which took it outside the general rule identified by Barwick CJ. Even if contrary to my primary conclusions the view were taken that the terms of the trial judge’s directions were not sufficiently full the defendant could not in my view demonstrate that a ‘substantial miscarriage’ of justice has occurred.[27]
[27]Butler v Rick Cuneen Logging Pty Ltd(1997) 2 VR 99.
For the above reasons, the appeal must fail. The comments made by counsel for the plaintiff were amenable to correction by further direction. The directions given were cumulatively adequate and the defendant did not in any event take exception to their terms.
SANTAMARIA JA:
I have had the advantage of reading the reasons of Osborn JA. I agree with them, and have nothing to add. The appeal should be dismissed.
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