Campanile v State of Victoria (Ruling No 2)
[2020] VSC 87
•6 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
AT GEELONG
CIVIL CIRCUIT LIST
S ECI 2018 02293
| DONATO CAMPANILE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Geelong |
DATES OF HEARING: | 20 February 2020 – 5 March 2020 |
DATE OF RULING: | 6 March 2020 |
CASE MAY BE CITED AS: | Campanile v State of Victoria (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 87 |
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JURY – Question from jury – Risk to a fair trial – Legal Practitioners – Professional conduct – Obligations of counsel as to presentation of evidence and witnesses answers during trial - Conduct calculated to influence jury improperly – Reza v Summerhill Orchards Ltd (2013) 37 VR 204 – Dismissal on the basis of complex medical evidence - Application to discharge jury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Walsh Mr G. Taylor | Shine Lawyers |
| For the Defendant | Mr S. Smith QC Ms K. Manning | Wisewould Mahony |
HER HONOUR:
The jury were empanelled on 20 February 2020. On 27 February the jury asked a question regarding the evidence of Dr Malhotra, the plaintiff’s treating neurologist which had just concluded. An issue in the trial was the impact that the unrelated condition of Multiple Sclerosis (‘MS’) might have on the plaintiff’s work capacity absent the effects of the work injuries. This was mostly relevant to the question of future loss of earning capacity in the application of Malec v Hutton[1] principles.
[1](1990) 169 CLR 638.
The plaintiff applied to discharge the jury, in part by the jury’s question. I received written submissions[2] from the plaintiff and heard oral submissions from the parties. I informed the parties that I refused the application and, as both the jury and the next witness were waiting, I would provide my reasons in due course. These are the reasons.
[2]Plaintiff’s Submissions in support of the application, Submissions in Donato Campanile v State of Victoria, 28 February 2020.
After Dr Malhotra had been excused, the jury’s question was ‘Dr Malhotra was asked to comment if plaintiff’s expected working life of 20 years remaining would be reduced due to MS. Plaintiff’s barrister was observed by two jurors shaking his head to the witness’. The parties decided to consider the implications of this question overnight. The next morning before the trial recommenced, in discussion with Counsel the parties agreed that an appropriate course was that I give a direction to the jury that:
(a) The Barristers all have obligations to the court as to the way in which evidence is presented, and the witnesses answer questions. That includes not coaching a witness or helping them arrive at their answers. The barristers in this trial all know of this obligation.
(b) During a trial, the Bar table is a workplace and in the course of the days’ hearing, there are a number of discussions between barristers and solicitors about matters such as strategic decisions that have to be made and documents and information that have to be located. This is normal work behaviour.
(c) Your job is to assess the witness and that’s the person in the witness box, their demeanour and the way that they give their evidence. It’s not for you to assess what’s going on at the bar table.
I gave such a direction when the jury entered the Court that morning.
The next morning the jury also asked another question which was directed to a particular piece of the neurological evidence. The manner in which that question was to be answered was not controversial between the parties.
Following the direction to the jury and the further question there was an application made by the plaintiff to discharge the jury. The application was based on two matters: first that the question posed by the jury the day before meant that the jury was focused on the issue of MS progressing and on what a reasonable percentage is to allow for a deterioration and its effect on the plaintiff’s earning capacity. The other matter was the general medical complexity: in particular what was submitted to be the disentanglement of symptoms arising from work related injuries and those arising from the plaintiff’s MS.
The genesis of the first issue lies in a question asked of Dr Malhotra during cross examination. I set out the exchange:
COUNSEL: Now, we’re 20 years out from Mr Campanile reaching the age of 67, and what might be regarded as the end of his usual working life, given the variability in the progress of the disease, there’s a real chance, is there not, that he wouldn’t be able to make it to the age of 67 working because of his MS? - - -
WITNESS: This is something which is difficult for me to comment on. It is - - -
COUNSEL: I don’t want you to give percentages.
HER HONOUR: Well, he’s answering - - -
COUNSEL: Yes.
HER HONOUR: - - - just in terms of difficulty in commenting, I think. Sorry. Go on, Doctor? - - -
WITNESS: Yeah, it is a difficulty on commenting. It depends on how he is down the track, so it is how his assessment may be 10 years down the track. Okay? Like – and, as I said, the landscape is changing. Even, ah, if you start looking at some of the recent data from real life experiences, what is happening with these patients and the amount of patients ending up having – going into the – going onto disability pension or having a reduced income about – from MS over the period of since the newer drugs have also - like, there have been studies which have shown that this has – these are significantly being improved.[3]
[3]Transcript of Proceeding, Donato Campanile v State of Victoria (Supreme Court, S ECI 2018 02293), Forbes J, (T) 27 February 2020 768 [8]-[30].
Previously in the trial I had ruled that opinion evidence by Associate Professor Chambers expressing percentage probabilities as to work prospects was inadmissible. The caution by Senior Counsel not to answer by way of percentages, was to avoid any difficulty that might arise from that ruling. It was also perhaps as a result of an earlier exchange between defendant’s counsel and the Court, in the absence of the jury, regarding a question put earlier to Mr Tan another neurologist, without objection, from a survey document about the percentage of persons stopping work early because of MS. As a result of these matters Counsel were attuned to avoid any difficulty with eliciting evidence expressed as percentage prospects. Dr Malhotra’s answer clearly set out relevant factors to be considered.
In light of all these circumstances the plaintiff submitted that the defendant’s question was directed at eliciting a percentage from the witness as to the ‘real chance’ and as a result an objection to that course was imminent. Further it was submitted that the jury were desirous of an answer as to any reduction in working life by reason of the MS and by their question were placing emphasis on being provided with a percentage chance. This was said to demonstrate that the jury had strayed from keeping an open mind.
I do not accept that the defendant’s question was directed at eliciting a percentage. The question asked the witness for agreement as to there being a ‘real chance’. There was an explicit caution that percentages were not being asked about. There seemed to me to be little chance that Dr Malhotra was intending to express a percentage and indeed his answer made no attempt to measure the chance in any way - he provided a number of factors now and in the future that were relevant to assessing chances. Nor do I accept that by its question or any assumption underlying it, the jury had any desire for or attraction to the prospect that percentages about such matters might be relevant evidence.
The further matter was the submission that from their question, the jury construed their observation of counsel as the plaintiff having ‘something to hide’ such that their view of counsel and therefore the plaintiff was tarnished.
As I said in my ruling[4] on an earlier application to discharge a jury in this matter, I accept that in the course of a jury trial jurors will react in court to participants including the judge, counsel and witnesses. That is to be expected. Ordinarily such in court reactions would not introduce anything extraneous or irrelevant that might necessitate a discharge. Whatever observations were made by the jury they were in court during the conduct of the case. A direction as canvassed above with Counsel and given to the jury before any further evidence was taken, was in my view sufficient to remind jurors of what was relevant for them to be focused on and to deal with their question. Counsel consented to this direction being given.
[4]Ibid, 17 February 2020.
The question for me on an application to discharge the jury was expressed by Kyrou AJA in Reza v Summerhill Orchards Ltd:
If…for any reason the jury is exposed to irrelevant and potentially prejudicial material, and one of the parties applies for an order discharging the jury, the question for the trial judge is whether the conduct complained of has seriously affected the proper conduct of a fair trial. The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief. If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authoritative direction to the jury. If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.
On appeal from the refusal of a trial judge to discharge the jury in circumstances where…the jury was exposed to irrelevant material, the question for the appellate court is whether to allow the judgment below to stand would effect a substantial wrong or miscarriage of justice. That question depends on whether, in the events which occurred, the fairness of the trial was seriously affected to the prejudice of the party that applied for a discharge of the jury, such that a new trial should be ordered.
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. 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. The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. 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. The capacity of juries to do so is critical to ensuring that proceedings are fair.
However, in some cases, … the irrelevant material to which the jury is exposed is so prejudicial that no direction by the trial judge can ensure a fair trial. In such a case, the only means by which the prejudice can be overcome is to order a new trial.[5]
[5]Reza v Summerhill Orchards Ltd (2013) 37 VR 204 (Kyrou AJA) 212 [46]- [47] and 213-14 [50]-[51].
In my view, neither the circumstances in which the question was asked of the witness nor the import of the jury’s question have led to the jury being exposed to extraneous matter calculated to influence their deliberations. Even accepting that the jury’s observation of Counsel (whatever was made of it), might be characterised as exposure to irrelevant or potentially prejudicial behaviour, it does not in my view amount to conduct that gives rise to a prejudice that can only be overcome by ordering a new trial. It is something that can be cured by a prompt explanation and direction. This was initially accepted by both parties as an appropriate course.
The second basis of the discharge application was the complexity of the medical evidence. I had ruled before empanelment on an application to hear the matter without a jury under rule 47.02.[6] I ruled then that the medical evidence that might be called in this case, was not sufficiently complex to dispense with the right to trial by jury which had been notified in accordance with the Rules.
[6]Supreme Court (General Civil Procedure) Rules2015.
In that ruling I outlined the injuries particularised which covered a range of conditions. There is a dispute between the parties as to the relationship between exposure and the continuing nature of respiratory, larynx and vocal cord conditions, as well as headaches, obstructive sleep apnoea, dizziness and cognitive symptoms. Secondly, there is said to be a pre-existing psychiatric condition worsened by the negligent exposure. And, finally, in 2017, after exposure and cessation of work, the plaintiff has been diagnosed with MS. This has led retrospectively to a diagnosis of right sided optic neuritis occurring in 2015, and from 2017 symptoms of sensory change in the legs and perhaps the left arm, fatigue and perhaps episodes of hearing loss and dizziness. This application, like the earlier one, is based upon the complexity of the factual matters as disclosed by the various medical conditions and by the complexity of the jury's task in assessment of damages.
The plaintiff submits that the overlap of symptoms attributable to MS and/or to fumes exposure is one factor that goes to the complexity. He also submits that the evidence, as is admissible regarding the prognosis of MS and its possible impact on future earning capacity also goes to the complexity of the task in assessing damages.
The submission made no reference to particular aspects in the complexity of evidence that had been received thus far, with one exception. A reference was made to the plaintiff’s respiratory condition which was said by the defendant to have become functional in nature. This was based on an opinion of Dr Malone, one of the treating respiratory physicians as expressed in a recent report to the plaintiff’s solicitors.
The plaintiff submitted that the nature and breadth of the injuries arising directly and indirectly from the exposure to fumes is more complicated than a single incident and single injury common law proceeding. I do not accept that a single course of exposure, the negligence of which is admitted, makes the assessment of damages particularly difficult.
I do accept that the breadth of injuries makes an assessment more complex. There is a degree of contest as to causation particularly regarding symptoms of headaches, cognitive difficulties and psychiatric symptoms. However, the overlap is otherwise limited between respiratory symptoms attributable to fumes and neurological symptoms attributable to MS. The severity of symptoms and the restriction caused by some or all of them is clearly in issue.
Identifying what injuries arise from the fumes exposure and assessing the present and likely future effects of multiple sclerosis are perhaps unusual in terms of the medical conditions that regularly come before this court. However, jurors as members of the community, hear a case without necessarily having familiarity with the medicine involved, even if it be medicine such as orthopaedic conditions familiar to those who regularly appear in common law personal injury matters. Expert witnesses so far including Dr Burdon, respiratory physician, as well as Dr Tan and Dr Malhotra, neurologists, have been able to clearly outline matters relevant to their particular specialities.
In my view, this medical evidence does not give rise to a level of complexity in presenting and testing the competing opinion evidence such that a jury could not understand those opinions and the contest between them as presented to them.
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