Cross v Theiss Pty Ltd

[2006] NSWSC 1455

CITATION:	Cross v Theiss Pty Ltd & 2 Ors [2006] NSWSC 1455 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 December 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	12/04/2006
DECISION:	Jury ordered; matter to be placed in the next list for mention before the Registrar; costs reserved.
CATCHWORDS:	Application for jury trial - personal injuries - industrial accident - employer adjusted safety measures to reduce pollution - whether jury trial in interests of justice - jury ordered.
LEGISLATION CITED:	Supreme Court Act 1970 s85(2)
CASES CITED:	Malo v South Sydney District Junior Rugby Football League Ltd and Anor, [2006] NSWSC 1133 Muir v Council of Trinity Grammar School [2005] NSWSC 555 Stalyce v Cetec Holdings (Aust) Pty Ltd (2002) FCA 278 Wyong Shire Council v Shirt [1980] 146 CLR 40
PARTIES:	Peter Norman CROSS (Plaintiff) Theiss Pty Limited (First Defendant) Xstrata Mt Owen Pty Limited (Second Defendant) Xstrata Coal Pty Limited (Third Defendant)
FILE NUMBER(S):	SC 2006/20237
COUNSEL:	Mr R de Meyrick - Plaintiff Mr Murray (solicitor) - First defendant Mr J Downing - Second & third defendants
SOLICITORS:	T D Kelly & Co - Plaintiff Sparke Helmore - First defendant Yeldham Lloyd Associates - Second & third defendants

Ex tempore - checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

MONDAY 4 DECEMBER 2006

20237/06 - PETER NORMAN CROSS v THEISS PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff was working at the Mount Irwin coal mine at Ravensworth in the Hunter Valley when the fuel cart he was driving lost grip on a ramp upon which he was then driving. It slid sideways for some distance and then rolled over. The plaintiff contends that a significant cause of the skid was the wet surface upon which the vehicle was being driven.

2 It is contended that the surface was wet in order to reduce the liberation of dust from the use of the ramp, this dust having been the subject of criticism or potential criticism in the local community about the conduct of operations at the mine. It appears that there was no operational reason for wetting or flooding the surface of the ramp. Other features said to have been unsafe were the camber and slope of the ramp and that the vehicle, itself, was not safe for use.

3 The plaintiff was injured when the vehicle turned over and suffered, amongst other things, traumatic brain injury and injuries to his neck and back, many fractures and other associated affects. It is alleged that he has continuing disability involving such problems as severe loss and impairment of short-term memory, cognitive impairment, changes to behaviour, decreased ability to concentrate, difficulties in speech, language and communication together with headaches and other pain. The extent to which the plaintiff's injuries incapacitate him for work will be a significant part of the litigation.

4 It is obvious, I think, that much of the evidence will come from experts dealing both with questions of causation, including technical answers to the asserted risks, and the assessment of appropriate damages and the extent of incapacity. Although, at first blush, it might be thought that the extent of expert evidence might have justified the contention that both in presentation and evaluation of such evidence a trial by a judge rather than a jury would be advantageous, such a submission has not been made by the second defendant and it seems to me that I should not permit what, after all, is a surmise as to the factual issues in the case to bear much weight.

5 The plaintiff seeks an order under s85(2) of the Supreme Court Act 1970 that these proceedings are to be tried by a jury. In order to obtain such an order the plaintiff must establish that, "the interests of justice require a trial by jury." This phrase has been the subject of judicial consideration.

6 In Muir v Council of Trinity Grammar School [2005] NSWSC 555 Hall J set out (at paragraph 10) a number of relevant matters that must be considered in determining an application for a jury. I do not intend to repeat these matters in this judgment; I adopt his Honour's analysis with gratitude.

7 That analysis was summarised by Simpson J in Malo v South Sydney District Junior Rugby Football League Ltd and Anor , [2006] NSWSC 1133 as follows, “In particular, his Honour held (I paraphrase and adapt) that the onus lies upon the applicant for trial by jury to establish that the interests of justice so require (a conclusion with which I respectfully agree); that the use of the word “require” demonstrates that the legislature intended to impose a more demanding test than, for example, the use of the word “favour” might have done, but that it does not impose a test of necessity or essentiality; that the inquiry by the court requires the identification of specific factors (that is, a substantial reason) that indicate that jury trial is warranted and justified in the interests of justice.”

8 As Simpson J observed, (I think with approval) that Hall J considered that a central issue in applying the section was, "the notion that the sort of circumstance that may call for (require) a jury trial is a case that may involve consideration or determination or application of ‘general community contemporary values’ or, ‘moral, ethical or general social values’”. The latter two phrases were drawn from Stalyce v Cetec Holdings (Aust) Pty Ltd (2002) FCA 278, a decision of Tamberlin J in the Federal Court.

9 As Simpson J commented, it is not only where, "general community contemporary values" are involved or where issues of "moral, ethical or general social values" are raised, that an order may be made. Nevertheless, it is material to consider whether, "the proceedings raise questions that ought to be resolved by a jury employing the commonsense and values of the average jury person": per Hall J, Muir (at para 10)

10 It is evident from the section to use what is now common but was once the arcane language of computerspeak that the, “default position", is trial by judge alone and that there must be a good and substantial reason for varying that situation. In this case the plaintiff points, in particular, to the necessity to consider the acceptability of the course adopted by the defendant to mollify or ameliorate the environmental impact of the mining operations. This question will arise in applying what might be called the "calculus of negligence", referred to in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47. The defendant submits, in substance, that this calculus is merely a conventional consideration arising in many negligence actions. It is submitted that the issues in this case do not distinguish it from the general run of mining or industrial accident cases. It seems to me, however, that the present action is at least somewhat unusual in raising the question of ‘conflicting responsibility’, not in terms of the economic interests of the employer as contrasted with the safety of the employee, which is the usual case, but the responsibility of the employer for the environmental effects of its operations as distinct from the safety of those operations for its workers.

11 This is not an easy question to resolve. It is not a question which legal skills are particularly apt to resolve. In short, it requires the kind of insight and sense of fair thinking in which the judge is not very much assisted by his or her forensic experience.

12 Much could be said on both sides of this conflict, if indeed conflict there be. It seems to me that it is best resolved by lay members of the public bringing their experience and judgment to bear upon it with the advantage that differing points of view, as it were, rubbing up against each other will produce a just outcome. The judge's opinion, though entirely acceptable as being that of an individual, is nevertheless the opinion of one person in his or her character of a lay juror.

13 Ultimately, the issue is very much a question of fact and degree. In my opinion the plaintiff has satisfied the onus of showing that the interests of justice require a jury.

14 I order that this matter be placed in the next list for mention before the Registrar.

15 Costs reserved.
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19/01/2007 - Changed the spelling of the plaintiff's name from Thiess to Theiss - Paragraph(s) Heading