Chapman v State of Victoria (Department of Human Services) (No 1)
[2016] VSC 272
•3 MAY 2016 (ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 03974
| MARK CHAPMAN | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) | Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 3 MAY 2016 |
DATE OF RULING: | 3 MAY 2016 (ex tempore) |
CASE MAY BE CITED AS: | CHAPMAN v STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) (NO 1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 272 |
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PRACTICE AND PROCEDURE – Civil trial – Mode of trial – Trial with a jury signified in writ but plaintiff did not pay jury fees – Defendant paid jury fees before trial – Application by plaintiff under r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 for direction that trial to be by judge alone – Applicable principles relevant to determination of mode of trial – Relevance of complexity of factual and legal issues – Claim alleging psychiatric injury with a number of causes – Order made directing trial to proceed with a jury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC Mr N Bird | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC Ms S Manova | Lander & Rogers |
HIS HONOUR:
This is an application by the plaintiff pursuant r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that the Court direct that this proceeding be tried without a jury.
By a generally endorsed writ filed on 4 August 2014, the plaintiff seeks damages for psychiatric and psychological injuries he alleges he suffered as a result of the defendant's failure to take reasonable care in providing a safe place of work and system of work, in particular, by requiring the plaintiff to work excessive hours, under excessive pressure, and by requiring him to attend to aggressive and potentially dangerous clients without appropriate support. The plaintiff also relies upon a failure to take reasonable care by employees of the defendant, arising out of an incident on 2 February 2010 when the plaintiff was verbally attacked by a client whilst in the company of a co-worker.
In the writ, the plaintiff provided for the mode of trial to be by judge and a jury of six. By r 47.02(1), the effect of the signification in the writ is that, subject to the discretion in sub-r (3) and the payment of jury fees, the proceeding is to be tried with a jury. Rule 47.02(3) provides that, notwithstanding any signification under sub-r 1, ‘the Court may direct for trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury’.
The statement of claim filed on 25 September 2014 drawn by Mr Bird of counsel provided that the mode of trial would be by judge alone. However, signification in the statement of claim is of no effect under the Rules.
On 19 May 2015, Associate Justice Daly made orders by consent pursuant to r 59.07 which made provision for the payment of the setting down fee and the first day of jury fees. I am informed that the plaintiff’s solicitors paid the setting down fee; but they did not pay the jury fees. On 28 April 2016, the defendant’s solicitors paid the jury fees and the plaintiff's counsel concedes that the matter is now properly set down to proceed with a jury.
Accordingly, the plaintiff now applies for the Court to exercise the discretion under r 47.02(3) to change the mode of trial from by judge with a jury of six to be by judge alone. The principles to be applied in such applications are well settled. Where a trial is to be with a jury, as a result of a signification under r 47.02(1), subject to payment of jury fees, prima facie the trial should be with a jury.[1] However r 47.02(3) ‘removes from the litigants the inviolate power to choose the mode of trial’.[2]
[1]State of Victoria v Psaila [1999] VSCA 193 [24] (Brooking JA).
[2]Altmann v Dunning [1995] 2 VR 1, 6 ( Marks J).
The court will not exercise its discretion unless it considers that it is not in the interests of justice for the trial to proceed before a jury.[3] On such an an application the proper approach is as follows:
(1)The onus is on the party moving that the trial, which was signified to be before a jury, should in fact not proceed before a jury; and that it is in the interests of justice that it proceed as a cause.[4]
(2)Juries should be regarded as capable of dealing with issues of legal and factual complexity, particularly in cases of a type that it is common for juries to determine, such as personal injury and defamation claims.[5]
(3)A court should not lightly make an order dispensing with a trial before a jury and there must be a special reason for the selection of a jury to be dispensed with. In other words, ‘a party should not be deprived of such an entitlement in the absence of good cause’.[6]
[3]Ibid 3 (Fullagar J), 7 ( Marks J).
[4]Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356, 362 (Higgins J).
[5]State of Victoria v Psaila [1999] VSCA 193 [24] (Brooking JA).
[6]Birti v SPI Electricity Pty Ltd [2011] VSC 566 [15(g)] (Jack Forrest J).
I should say that, in my opinion, none of these principles are affected by the fact that it was the plaintiff, rather than the defendant, who signified that this proceeding should be tried before a jury; and who is now seeking a direction to the opposite effect. This is because, as was decided by the Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe,[7] the filing notice of jury by the defendant pursuant to r 47.02(1) is ineffective, if the plaintiff has designated that the matter should proceed as a trial with a jury. Accordingly, the defendant should not be prejudiced by the plaintiff’s change of mind.
[7](2011) 31 VR 249, 257 [19]-[21] (Warren CJ, Nettle JA and Ashley JA).
In Birti v SPI Electricity Pty Ltd,[8] Jack Forrest J noted that the discretion in r 47.02(3) was unfettered and all matters that went to the question of whether it was in the interests of justice to dispense with the jury would be relevant. However, his Honour particularly identified the following relevant factors:
[8][2011] VSC 566 [15] following his Honour’s earlier decision in Gunns Ltd v Marr (No 5) [2009] VSC 284 [9] and adding two considerations identified in Trevor Roller Shutter Service Pty Ltd v Crowe (2011) 31 VR 249, 257 (Warren CJ, Nettle JA and Ashley JA).
(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.
(v) The stage at which the proceeding or trial has reached.
Mr Tobin SC, who appeared as senior counsel for the plaintiff, relied upon the following:
(a) The complexity of the legal and factual matters.
(b) The urgency of the matter.
(c) The state of discovery.
(d) The availability of a psychiatrist, Dr Epstein, who is currently in China.
The complexity of the legal and factual matters
With respect to the complexity, Mr Tobin submitted that there were three alleged relevant causative periods or events: the period of work from January 2005 up to the incident on 2 February 2010; the incident on 2 February 2010; and the period from May 2010 to November 2010 after the plaintiff returned to work.
The plaintiff contends that all of these periods were relevant and causative of the plaintiff's current psychiatric condition.
Mr Tobin further submitted that the jury would need to be charged with the law with respect to the matters identified by the High Court in Koehler v Cerebos (Aust) Ltd[9] and, what he described as, ‘the fireman's defence’. He submitted that there were a variety of possible analyses, depending on how the jury determined which of the alleged causative factors gave rise to a liability on the defendant to pay damages to the plaintiff.
[9](2005) 222 CLR 44.
Mr Middleton QC, who appeared as senior counsel for the defendant, conceded that there were three potential causes of action but submitted that it was not an unusual or particularly complex matter; and the fact that there was complexity, both legal and factual, was not of itself a reason to dispense with the jury. Further, he submitted that the legal principles in Koehler v Cerebos (Aust) Ltd were not of great complexity and were frequently the subject of charges to juries.
The urgency of the matter
Mr Tobin secondly submitted that there was real urgency in having the plaintiff's claim determined because of his significant psychiatric condition. In particular, he contended that:
(a) the plaintiff suffers from panic attacks and he is anxious for the proceeding to go forward and be determined;
(b) it is likely, in the circumstances, that the plaintiff will be required to give evidence over five days because he has a long and detailed story; and
(c) the plaintiff’s evidence would be given more quickly before a judge alone and there was greater flexibility before a judge alone if, in fact, he was suffered with panic attacks.
Mr Middleton responded that there was no evidence to establish that, in fact, the plaintiff would be inhibited in his capacity to give evidence. He referred to the fact that Dr Ridley, who was the treating psychiatrist, had not treated the plaintiff since April 2015.[10]
[10]Mr Tobin explained that is because Dr Ridley was no longer in Warnambool.
Mr Middleton also noted that, although panic attacks have been identified as part of the plaintiff’s psychiatric history, in neither the report of Dr Ridley or report of the general practitioner, was there any evidence that the plaintiff was likely to suffer from any particular problem in the giving of evidence.
In substance, in Mr Middleton’s submission, there was no reason to support the proposition that the evidence would be dealt with any more quickly in a trial by judge alone than it would be in a trial with a jury.
The state of discovery
Mr Tobin thirdly relied upon the state of discovery. In particular, he identified the following three categories of documents which he said were critical to the plaintiff's case and which he would be requiring be discovered by the defendant over the next few days:
(a) The plaintiff's 2010 work diary.
(b) Documents with respect to the incident on 2 February 2010, in particular documents relating to the proposed intervention at the subject premises, and checks that would have been carried out prior to the intervention, which would deal with whether or not there was known criminal history, known sexual violence or phone coverage in the area.
(c) Disease, Injury or Near Miss Accident reports from on or about 2 February 2010.
He submitted that, if the matter proceeded by way of a cause, it would allow greater flexibility in allowing those documents to be produced and it was likely to cause less inconvenience than if the matter proceeded by way of a trial with a jury.
Mr Middleton said that the Disease, Injury or Near Miss Accident reports had now been produced and inquiries were still being made with respect to the other documents. In his submission, there was no particular reason why there would be any greater inconvenience if the trial proceeded before a jury rather than a cause when the documents were ultimately produced.
The availability of a psychiatrist, Dr Epstein, who is currently in China
The final basis upon which Mr Tobin relied was the unavailability of the psychiatrist Dr Epstein, who had provided a medico-legal opinion and was currently in China. Mr Tobin submitted that Dr Epstein’s report was complicated and its admission into evidence would be better accommodated by the matter proceeding before a judge alone, although he conceded that the content of the medical report could be read to the jury. In his submission, the long and complicated medical report being read to the jury was not the ideal manner in which such evidence should be presented and that it would be better dealt with by a judge than before a jury.
Mr Middleton said that, subject to matters that might fall outside of Dr Epstein's expertise relating to liability, there was no objection to the report being read to the jury and, in those circumstances, the jury were equally able to deal with the issues in the report as could a judge. Further, issues arising from the fact that Dr Epstein had not been available for cross-examination would arise in both instances.
Finally, Mr Middleton submitted that if during the course of the trial, matters arose that did substantially impact on the justice of the trial proceeding as a trial with a jury, application could be made for discharge of the jury and the matter could proceed as a cause at that time.
Conclusion
In my opinion, the bases relied upon by the plaintiff are not sufficient to overcome the requirement that the Court should not lightly dispense of the jury and do not give rise to any special reason why in this case I should do so. Plainly enough, as a claim for compensation for personal injuries, the case falls squarely within the claims which are commonly dealt with by juries.
With respect to the submission of complexity, I do not think that the allegation that there could be three separate causes of all or part of the injuries means that the jury would not be able to be fairly charged as to each of those issues and come to a just verdict. There is no doubt that identifying separately the damage that might arise from one or other of the incidents will require the exercise of some judgment. However, that arises whether the matter is determined by a judge or by a jury.
No submission was made as to the jury's task in relation to the assessment of damages overall. Psychiatric injuries and the award of pecuniary damages in such cases are issues which are commonly dealt with by juries.
The potential duration of the trial is not such that it would be a significant factor and, of course, the stage at which the proceeding has reached is not a significant factor.
Further, I note that this is not a case where there are multiple causes of action against multiple defendants.
I accept there will need to be a detailed charge about the content of the duty of care; but, in my opinion, the issues are matters about which the jury can be fairly and properly charged and the jury would be quite capable of making a determination.
On the question of urgency, whilst I have no particular evidence of urgency in this case, it can readily be inferred that a plaintiff who has suffered significant psychological or psychiatric injuries would be liable to be greatly stressed by impending litigation. However, the fact is that the trial will proceed before a jury this afternoon and, although it can be fairly said that a jury trial may take some further time than a cause, I am not persuaded that the amount of time that the plaintiff will be in the witness box should be significantly greater by reason of the matter proceeding with a jury. In fact, it is very likely that a jury verdict would be given more promptly than judgment by me (requiring as it does written reasons).
With respect to discovery, I am not persuaded that proceeding with a jury will have any significant impact on the progress of the trial as opposed to proceeding as a cause. At this point in time, any suggestion that the issues with discovery will interfere with the conduct of a jury trial more than a cause, does not rise above speculation.
With respect to the availability of Dr Epstein, the reading of medical reports, including psychiatrist reports, to juries, is not uncommon. In the present case, the jury will have the benefit of direct evidence from the plaintiff's treating psychiatrist and general practitioner. There is no reason why reading the Dr Epstein's report into evidence for the consideration of the jury will be any less effective than handing up a copy of the report to a judge in a cause.
In the circumstances, for the reasons I have identified, I refuse the application.
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