Bushell v Polygon Retailing Ltd T/as BP Service Station Clybucca

[1999] NSWSC 1158

CITATION:	Bushell v Polygon Retailing Ltd T/as BP Service Station Clybucca [1999] NSWSC 1158
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20593/96
HEARING DATE(S):	22 October 1999
JUDGMENT DATE:	30 November 1999
PARTIES :	Glenda Jean Bushell - Plaintiff Polygon Retailing Ltd T/as BP Service Station Clybucca - Defendant
JUDGMENT OF:	Simpson J at 1

COUNSEL :	Mr B Toomey QC - Plaintiff Mr M Cranitch SC - Defendant
SOLICITORS:	Stacks - The Law Firm - Plaintiff Hickson Lakeman & Holcombe - Defendant
CATCHWORDS:
ACTS CITED:	Supreme Court Act 1970
CASES CITED:	Pambula Hospital v Herriman (1988) 14 NSWLR 387
DECISION:	Notice of motion dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Tuesday 30 November 1999

20593/96

Glenda Jean BUSHELL v POLYGON RETAILING LTD
t/as BP SERVICE STATION CLYBUCCA

Judgment

HER HONOUR :

1    By statement of claim filed on 13 June 1996 the plaintiff claims damages from the defendant for personal injury she alleges was caused while she was employed by the defendant and as a result of the defendant’s negligence. The defendant has admitted that it was in breach of its duty of care to her. The issues that are expected to arise include the nature of the injury sustained by the plaintiff, the causation of subsequent injury, and the extent (if any) for which the plaintiff is herself responsible for the injury and its sequelae. On 13 September 1999 the plaintiff, as is her right, filed a requisition for trial by jury. There is some question as to whether this requisition was filed within the time prescribed. On 24 September the trial was fixed for a hearing to commence on 7 February 2000, with two weeks of court time allocated.

2 The defendant, on 1 October 1999, filed a notice of motion seeking, inter alia, an order pursuant to s 89 of the Supreme Court Act 1970, that all issues of fact be tried without a jury. A further order sought by the defendant was that the plaintiff’s requisition for jury trial be set aside. The basis for seeking this order was the defendant’s contention that the requisition was filed out of time.

3    After discussion, Mr Cranitch SC, who appeared on the application for the defendant, accepted that the substance of the application was whether the defendant was able to establish its case for trial without a jury, and that, if there were some technical defect in the filing of the plaintiff’s requisition, the powers conferred by the rules would be appropriately be exercised to cure that defect. It was therefore possible to proceed to deal with the single issue of substance.

4 The relevant law is well established and uncomplicated. By s 86 of the Supreme Court Act, any party to proceedings of the kind the plaintiff brings is entitled to requisition trial by jury. By s 89, in such proceedings the court may order, despite s 86, that all or any issues of fact be tried without a jury. The onus lies on the party seeking to displace the requisitioning party’s right to trial by jury to show that that party should be deprived of his/her/its choice of mode of trial: Pambula District Hospital v Herriman (1988) 14 NSWLR 387.

The substantive proceedings

5    It is common ground, at least for the purposes of this application, that the plaintiff was employed by the defendant as a cleaner in a service station complex at Clybucca. On 16 June 1993 she used a chemical provided to her in a milk bottle. She developed symptoms on her skin. Thereafter there were, apparently, complications. A medical history, the accuracy of which was not challenged for the purpose of this application, is conveniently contained in a report of Dr R Milton dated 31 January 1997. In January 1995 the plaintiff’s right hand and lower arm were amputated.

6    The plaintiff’s claim is that the amputation was a result of the injury in June 1993. The defendant’s case is that the explanation for the amputation is that, over the period since June 1993, the plaintiff inflicted injury upon herself, culminating in the amputation. Dr Milton has diagnosed Munchausen’s Syndrome. A plastic surgeon, Dr McKessar, shares the view that the plaintiff’s continuing symptoms were the result of self-inflicted injury.

7    As a practical matter, if not in strict law, an evidentiary onus will be cast upon the defendant to persuade the tribunal of fact that that diagnosis is correct, and it is apparent that the defendant has recognised and accepted that reality. In order to discharge that onus the defendant proposes to call a very large number of medical practitioners. Annexed to an affidavit sworn by Ms S J Mooyaart Jones, a solicitor employed by the solicitor for the defendant, is a list of doctors whose reports have been served by the parties on one another. There are twenty-one practitioners qualified by the defendant, fifteen by the plaintiff. As well, the plaintiff proposes to rely upon the evidence of experts in other fields. As I perceive the defendant’s plan of action, it is to show:

(i) that the chemical injury it acknowledges the plaintiff suffered could not have resulted in the history of symptomatology of which she subsequently complained;

(ii) that the chemical to which the plaintiff was exposed could not have caused the complications recorded;

(iii) that the plaintiff’s personal history is such as is consistent with personal histories of individuals diagnosed as suffering Munchausen’s Syndrome;

(iv) that the plaintiff’s own medical history shows that she has undergone various procedures which are, at the very least, questionable, and which, put together, show that she has a history of putting herself in the position of undergoing unnecessary surgical procedures.

8    To establish the last of these it may be necessary to explore some, if not all, of the individual procedures and their apparent justification (or otherwise). Thus, it was argued on behalf of the defendants, a jury would be faced with a complex array of technical and medical evidence, including evidence relating to the nature of the chemical. Further, it would have before it effectively the plaintiff’s entire medical history.

9    However, Mr Cranitch did not press with great vigour the complexity of the expert material alone as the basis for the application. It became apparent that the substantial basis of the application was the perceived credibility hurdle the defendants would face in presenting that case to a jury of men and women drawn from the community generally. Borrowing from the language of Dr McKessar, Mr Cranitch submitted that the notion of self-inflicted injury, certainly of the nature and extent here in question is or would be so “repugnant” to the ordinary person that one could not ask or expect four members of the community to believe it. Far better, he argued, to leave it to the clinical mind of a judge, whose revulsion at the concept would more readily be able to be put to one side.

10    So to frame the argument exposes its fallacy. Juries are chosen daily, in the criminal courts, to adjudicate on conduct entirely alien to the vast majority of the citizenry. They are chosen in civil and criminal cases to evaluate technical expert evidence, and in civil cases to perform complex mathematical calculations. They are an important part of the administration of civil and criminal justice. In criminal cases they are entrusted with the compliance with directions of law that must sometimes seem absurd (such as completely putting out of their minds evidence about what one co-accused has said of another).

11    I see no reason why a jury cannot be trusted to evaluate in the same objective way the issues that arise in this case.

12    Reference was made by Mr Cranitch to some supporting matters, such as the likelihood that the duration of the trial will be increased if it is to be conducted before a jury, and that there will be difficulty and expense in presenting all the evidence orally through witnesses who will have to be marshalled in a logical sequence in order to present the case in a rational way to a jury. These are insufficient of themselves to justify depriving the plaintiff of her right to trial by jury. They do not strengthen the proposition founded upon the asserted incapacity of a jury to come to grips with an unusual psychiatric illness with which I have already dealt.

13    The notice of motion is dismissed with costs.

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Last Modified: 12/02/1999