Dean v Central Highlands Region Water Corporation
[2024] VSCA 315
•12 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0038 |
| STEPHEN JAMES DEAN | Applicant |
| v | |
| CENTRAL HIGHLANDS REGION WATER CORPORATION | Respondent |
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| JUDGES: | MACAULAY JA, GORTON and J FORREST AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 October 2024 |
| DATE OF JUDGMENT: | 12 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 315 |
| JUDGMENT APPEALED FROM: | Dean v Central Highlands Region Water Corporation (County Court of Victoria, Judge K Bourke, 8 March 2024) |
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NEGLIGENCE – Application for leave to appeal judgment entered on jury verdict – Applicant severely injured in dog attack while working as water meter reader – Applicant sought damages from respondent employer, alleging negligent failure to provide dog safety training and/or animal repellent spray – Applicant claimed training and/or spray would have avoided attack, or alternatively, caused injuries to be less severe – Judge directed jury not to consider alternative ‘less severe injury’ case – Majority verdict for respondent on primary ‘no injury’ case – Judge erred in directing jury not to consider ‘less severe injury’ case – Victoria v Bryar (1970) 44 ALJR 174; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, applied.
CIVIL PROCEDURE – Misdirection by trial judge – Whether judgment should be set aside – Whether misdirection occasioned substantial wrong or miscarriage in trial – Respondent failed to establish that proper direction could not have made difference to outcome of trial – Substantial miscarriage – Power to set aside judgment and order retrial enlivened – When error occasions no substantial wrong or miscarriage, difference between residual discretion to refuse leave to appeal notwithstanding real prospect of success and prohibition against ordering new trial – Supreme Court Act 1986, s 14C, Supreme Court (General Civil Procedure) Rules 2015, rr 64.37(1)–(2); Civil Procedure Act 2010, ss 7–8 – Balenzuela v De Gail (1959) 101 CLR 226; Weiss v The Queen (2005) 224 CLR 300; Nobarani v Mariconte (2018) 265 CLR 236; Tory v Megna [2007] NSWCA 13; Kennedy v Shire of Campaspe [2015] VSCA 47, considered.
CIVIL PROCEDURE – New trial – Material misdirection by trial judge – Applicant sought new trial in County Court on all issues – Respondent sought determination by Court of Appeal of ‘less severe injury’ case only with retention of jury verdict on ‘no injury’ case – Whether Court of Appeal empowered to set aside judgment but retain jury verdict – Clear power under Supreme Court Act 1986, s 14(1) – Whether Court of Appeal should determine ‘less severe injury’ case alone, or remit proceeding for new trial on all issues – Discretionary considerations relevant to choosing between ordering a new trial and Court of Appeal giving judgment – Leave to appeal granted – Appeal allowed – Judgment set aside, proceeding remitted for new trial on all issues – Supreme Court (General Civil Procedure) Rules 2015, r 64.37; Supreme Court Act 1986, s 14; Civil Procedure Act 2010, ss 7–8 – Pateman v Higgin (1957) 97 CLR 521; Murphy v Mark [1977] VR 316; David Syme & Co Ltd v Mather [1977] VR 516; Vandeloo v Waltons Ltd [1976] VR 77; Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd [1934] 51 CLR 328, considered.
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| Counsel | |||
| Applicant: | Mr MJ Hooper SC with Mr AC Dimsey | ||
| Respondent: | Mr P Solomon KC with Mr B Jellis SC | ||
Solicitors | |||
| Applicant: | Ellis Palmos & Co | ||
| Respondent: | Injury Disputes Practice Lawyers | ||
TABLE OF CONTENTS
Introduction and summary
Background
The dog attack
Available precautions to avoid or minimise injuries from a dog attack
Mr Dean’s injuries and their consequences
The judge’s direction and the jury’s decision
Did the judge err by directing the jury not to consider the Less Severe Injury case?
Did the misdirection occasion a substantial miscarriage of justice in the trial?
Relevant legal principles
Submissions
Consideration
Which aspect of the case should be reheard and/or should this Court rehear the case itself?
Relevant legal principles
Submissions
Decision
Conclusion
MACAULAY JA
GORTON AJA
J FORREST AJA:
Introduction and summary
In July 2018, while reading a water meter at a residential property in Ballarat, Mr Dean, the applicant, was attacked by an American Pitbull x Staffy dog called Erkil. He sustained serious physical injuries, particularly to his left thigh and left lower leg. He also developed severe psychological injuries as a result of the attack. At the time, Mr Dean was employed as a water meter reader by the Central Highlands Region Water Corporation, the respondent (the ‘Corporation’).
Mr Dean brought a claim for damages against the Corporation in the County Court, alleging that its failure to provide him with dog safety training and/or animal repellent spray was negligent. He argued that had either or both of those precautions been taken, the attack would have been avoided, or, in the alternative, his injuries would have been less severe. He only sought damages for pain and suffering.
At trial before a jury of six, Mr Dean’s counsel advanced this two‑limbed causation argument — that is, but for the Corporation’s alleged failures, Mr Dean would have suffered no injury (the ‘No Injury case’) or, although he would still have suffered some injuries, they would have been less severe (the ‘Less Severe Injury case’). The judge did not allow the Less Severe Injury case to be put to the jury for its decision. Against Mr Dean’s objections, the judge directed the jury that they were to consider only the first limb — that is, whether taking reasonable care would have avoided Mr Dean’s injuries in their entirety. It followed that the jury did not consider whether they were satisfied that, but for the Corporation’s alleged breach of duty, Mr Dean’s injuries would have been less severe.
By a 5:1 majority,[1] the jury found that there was no negligence on the part of the Corporation which was a cause of injury, loss or damage to Mr Dean. Accordingly, judgment was entered in the Corporation’s favour.
[1]After the jury had been deliberating for at least 7 hours the judge permitted the jury to deliver a majority verdict as permitted by s 47(2) of the Juries Act2000.
Mr Dean seeks to appeal that judgment, submitting, as the first ground, that the judge’s direction as to causation was wrong in law. A second proposed ground of appeal contended that the judge erred in denying Mr Dean procedural fairness. That ground fell away due to a concession made in respect of the first proposed ground. Specifically, in its written submissions on the application for leave to appeal, the Corporation conceded — correctly, as we will explain — that the judge erred in directing the jury not to consider the Less Severe Injury case. However, the parties differed in what they said should be the consequence of that misdirection.
Mr Dean argued that, following upon that concession, leave to appeal should be granted and the appeal allowed. He argued that the Corporation has not discharged the high burden of showing that the misdirection could not have made a difference to the outcome of the trial. He also argued that, for several reasons, the only appropriate course is to remit the proceeding to the County Court for a retrial. He resisted any proposition that this Court should determine the case for itself.
For its part, the Corporation submitted that, despite the conceded misdirection, leave to appeal against the judgment should be refused. That is because, it argued, no substantial miscarriage of justice was occasioned by the misdirection. It submitted that the evidence at trial could not have sustained a lawful finding that the Corporation’s negligent failures (if they be negligent) to provide dog safety training and/or animal repellent spray to Mr Dean, caused him to suffer more severe injuries than he would have suffered had he been provided with either or both of those things.[2] In oral argument, the Corporation frankly recognised that it faced a ‘high hurdle’ in succeeding on this argument.
[2]We observe that if the evidence, taken at its highest, would not have permitted the jury to find for Mr Dean on the Less Severe Injury case, it may not have been an error for the judge to take that case away from the jury. Indeed, this may have been what the judge had in mind. The Corporation did not argue the case that way. Instead, it conceded error, but argued that it did not lead to a miscarriage because the evidence would not have permitted the jury to find for Mr Dean on the Less Severe Injury case. Both paths lead to the same result.
The Corporation described the ‘hunting ground’ of the appeal as being the questions whether, upon the appeal being allowed, the case should be remitted to the County Court or re-heard by this Court and, if the latter, what aspect of the case was to be re-heard. If the case is to be remitted to the County Court, the Corporation accepted (as Mr Dean had urged) that it should be retried on all issues.
Accordingly, the Corporation’s alternative argument was that even if leave to appeal is granted, this Court should determine for itself, on the evidence led at trial, whether Mr Dean has established causation on the Less Severe Injury case alone. On that question, it argued, this Court should dismiss the Less Severe Injury case and enter judgment for the Corporation. If, however, the Court upheld that case, it should assess damages limited only to the consequences of the more severe injuries.
In response, Mr Dean’s alternative position — if the Court held that it should determine the case for itself — is that the Court could only proceed to determine the whole of the case. That is, this Court could not (or at the very least, should not) allow the appeal and set aside the judgment in the County Court, and then only proceed to rehear and determine a limited part of Mr Dean’s claim. In rehearing the whole case, Mr Dean urged this Court to find that the No Injury Case has been established and to assess damages for the entirety of his injuries on that basis in the amount of $400,000 for pain and suffering. In the further alternative, if this Court only found for Mr Dean on the Less Severe Injury case, it should award damages of not less than $250,000.
At trial, the issues of breach of duty and causation were both contested. But, in giving its verdict, the jury answered only one question, namely: was there any negligence on the part of the defendant which was a cause of injury, loss or damage to the plaintiff? The jury’s answer to that question was ‘no’. In other words, the jury’s decisions on the issues of breach of duty and causation were rolled up in the one answer. It was not contended that the jury’s verdict was unsafe in so far as it rejected Mr Dean’s No Injury case, but it was not possible to discern whether the jury’s verdict meant that it rejected Mr Dean’s case on breach of duty, or causation, or both. Indeed, different jurors may have agreed to the verdict on different bases.
Going further, assuming that the jury reached a finding of breach of duty but rejected Mr Dean’s case on causation, it is not possible to know whether jurors considered that the Corporation was in breach for failing to provide dog safety training, or animal repellent, or both. If this Court was to determine the causation question on the Less Severe Injury case, as the Corporation urged, what breach should the Court proceed upon? Acknowledging this conundrum to be a problem for its preferred position, the Corporation informed the Court that, strictly for the limited purpose of this Court hearing and determining the Less Severe Injury case, it admitted that it breached its duty in both respects.
Because it was common ground that the whole of the case (breach of duty, causation and quantification of damage) should be retried if the case is to be remitted to the County Court, the question whether the case should instead be retried by this Court turned on, or was at least entwined with, another question: which aspect of the case should be retried if the appeal is allowed?
These arguments give rise to the following questions (although the answer to the first was not disputed):
(a)Did the judge err by directing the jury not to consider the Less Severe Injury case?
(b)If so, did the misdirection occasion a substantial miscarriage of justice in the trial?
(c)If the appeal is allowed, what aspect of the case should be reheard, and should the Court rehear the case itself or remit the proceeding to the County Court?
(d)If this Court rehears the case, what should the outcome be?
For the reasons that follow, we have concluded that the judge erred in directing the jury not to consider the Less Severe Injury case; the error occasioned a substantial wrong or miscarriage in the trial; and this Court’s power to order a new trial or give final judgment itself having been engaged, there should be a new trial by jury in the County Court on all the issues joined in the proceeding. Due to the answer to the third question, it is not necessary to consider the fourth.
Background
The parties provided the Court with an agreed summary of the relevant evidence at trial concerning the dog attack and the extent of Mr Dean’s injuries, and the expert evidence concerning the behaviour of dogs and available precautions for avoiding or minimising injuries from a dog attack. It is convenient to reproduce that summary, with a few additions and clarifications.
The dog attack
Mr Dean was born on 2 May 1958 and was 65 years old at the time of trial. He had been working as a meter reader for around four years before the incident on 23 July 2018. As a meter reader he carried an electronic device called a ‘data cap’. The data cap contained information about dogs on properties, including dangerous dogs, if that information had been entered.
The incident occurred at a property located at 223 Humffray Street North, Ballarat. An aerial photograph of the property was tendered, along with photographs of the data cap and a 2-foot screwdriver that Mr Dean was carrying at the time of the incident.
When outside the front of the property at 223 Humffray Street North, Mr Dean looked at the data cap which told him where the meter was located but had no other information about the property. He looked through the picket fence and saw nothing there, so he went through the gate and over to the meter which was several metres to the left of the gate near a tree beside the fence. The front door to the house was directly in line with the gate. Mr Dean had his data cap and the screwdriver in his left hand. He crouched down to clean dirt off the meter. Upon hearing a woman call out to him asking what he was doing, he stood up, stepped back from the tree and faced the woman explaining that he was reading the meter.
As to the attack, Mr Dean in examination-in-chief said:
What happens next? --- She opens the door and a big brown dog, short-haired, just marched past her and marched up towards me.
Can you describe the dog? --- Yeah, very muscly, big head, stocky, solid.
How high was it compared to you? --- It was just under my knee.
Does it make any sound? --- No, not a sound.
What did its face look like? --- Like the man out of Batman, I still see it, The Joker, whatever his name is.
What do you mean The Joker? --- It just had a big mouth and just coming at me.
Did you see its teeth? --- Yes.
What did you think, what did you say? --- As it got closer I thought - sorry - ‘Fuck, I’m in trouble.’
What did you do? --- Then it got to close enough for me that it was within an arm’s reach, going for my leg and I pushed the data cap in its face.
What happened then? --- It spat that out and then I hit it a couple of times on the top of the head with the screwdriver.
What happened then? --- It grabbed me by the leg.
Which leg? --- The left leg.
Whereabouts on the leg? --- On the calf.
What happened then? --- It started to shake me leg and I fell over.
What happened then? --- I lost the screwdriver because I couldn’t - I couldn’t grab a hold of the dog because I was on me back and all I could see was bits and pieces.
Bits and pieces of what? --- Of my leg going in the air.
What happened then? --- Then it let go for some unknown reason and come to my shoulder, my left shoulder.
You said you fell over? --- Yep.
And what position are you in? --- I’m on my back.
So it comes over to your shoulder, your left shoulder? --- Yeah, left shoulder.
What happens then? --- It bites me on the shoulder and I punched it as hard as I possibly could with me right-hand and it sort of let go and I thought right, so I jumped up and got to the fence to try and climb over it. It grabbed me, pulled me back down and then started on the top part of my leg.
By that you mean above the knee? --- Above the knee, yep.
Could you feel anything then? --- No, no.
You say it grabbed you, where did you end up? --- On me back again.
Did you have any thoughts at that stage about what the outcome was going to be? --- Yeah. When its mouth was wrapped around me leg, because it was a big - I thought, it’s all over here, I’m done through.
Did the lady say anything that you remember? --- Yeah, when I hit the dog she said, ‘Don’t hurt me dog’, but that wasn’t stopping nothing.
In cross-examination Mr Dean gave this evidence:
MS RYAN: This dog you described to the jury was - when it did get you by the leg, it was so strong that as it shook your leg you in fact fell over? --- Pushed me over, yes.
Pushed you over? --- Yep.
So the dog then manages to knock you onto the ground? --- Onto me back, yep.
So you’re on your back and that’s when it goes for your left shoulder? --- After mauling me bottom left leg a few times.
Mr Dean was further cross-examined as follows:
You had done nothing to aggravate that dog? --- Nothing.
Before it went for your leg, had you? --- No.
The reason you had to push the data cap in its face, because it was already going for your leg? --- That’s correct.
As you said yesterday? --- Going for my leg.
Was it going for your left leg at that time? --- Yes.
So you’d been standing still? --- Yeah, I stood up.
You stood up? --- Yep.
The dog, what, rushed at you, leapt at you? --- No. A rush is - it strolled out to me which is a fairly big dog, so if it was strolling you could say it rushed, but it was strolling out to me.
Mr Dean also gave this evidence in cross-examination:
You didn’t have time to even turn around and try to get to the front door - when I say the front door, the front fence? --- No.
You didn’t have time. And you didn’t have time because it was much quicker than 5 seconds, wasn’t it, from when you see the dog, the dog rushes at you, tries to get your left leg? --- I’d still say around 5 seconds, by the time it got from the door to me.
The attack was stopped by two tradesmen who kicked the dog and put the dog in a headlock. Mr Dean was told not to look at his leg. Someone put a coat over him, and an ambulance took him to hospital while he was in shock. Several graphic photographs of his injuries were tendered.
He was also cross-examined on the dog’s motivation to attack:
In terms of that spray, are you aware that the product manual states that, ‘It may not stop animals with a strong motivation to attack’? --- Yes.
And it’s fair to say that this dog was nothing, if not highly motivated to attack you? --- Yes.
In fact, it was so motivated to keep attacking you that it managed to get you from the fence. When you managed to get up on the fence, it then dragged you off, didn’t it? --- Correct.
Mr Dean had given evidence-in-chief that if he had been given training he would have followed it. The spray referred to a product known as PetSafe SprayShield, of which the active ingredient is citronella (and it was described as citronella spray at the trial). Mr Dean said that if given the spray he would have used it and would have had enough time to get it out before the dog bit him.
Available precautions to avoid or minimise injuries from a dog attack
Expert evidence was given by Dr Jacqui Ley (veterinarian and animal behavioural expert). Dr Ley said in evidence as follows:
Aggressive and threatening behaviour crosses species lines, so human aggressive behaviour is recognised by animals, especially those we keep as companion animals. Typical human responses to being threatened, such as staring and waving the arms when faced by an unfamiliar dog, are actively discouraged in information supplied by government and other organisations, to help reduce dog attacks.
Dr Ley said:
Recommendations about what to do in more serious attacks are to try and get behind a barrier or other object to shield from the attacking dog, or get to higher ground. If knocked off their feet, the person should curl into a ball and protect their neck with their hands and arms. Staying still and waiting for the dog to leave is also recommended.
Dr Ley gave evidence as to the potential effectiveness of training:
Providing information and training about canine body language, communication, behaviour and what to do in the event of a dog attack is likely to have reduced the risk of workers being in positions of being charged by dogs. Providing Mr Dean with this training may have reduced the extent of his injuries. It may have been possible to de-escalate the situation if he had known to stay calm, quiet, move slowly and avoid antagonising the dog.
She said that:
Staying calm, moving slowly if possible, and getting a barrier or large object between him and the dog, Erkil, may have helped prevent a bite. Staying still and curling up when possible when he was knocked to the ground may have minimised the extent of the injuries he received.
And further, Dr Ley opined:
It is possible that Mr Dean’s actions of shoving his data cap and his screwdriver at Erkil and then hitting him with the screwdriver inflamed the situation … continuing to fight the dog when he had hold of Mr Dean’s leg is also likely to have contributed to the severity of the injury.
Dr Ley was cross-examined on that evidence and agreed that she had assumed that Mr Dean was in fact continuing to fight with the dog while the dog had hold of his leg. She continued:
Anything that keeps the dog engaging, holding harder, putting more force through its mouth, sort of trying to pull the leg away is going to cause tear injuries. So the thing is, attempting to get his leg underneath him and staying as still as possible may have prevented the dog from sort of continuing its behaviour, resulting in less injuries. I can’t be certain but it may have helped.
When you say ‘may have’? --- May have.
You agree it’s somewhat speculative? --- Yes.
Dr Ley explained how struggling could lead to further injury:
Bite prevention programs stress the need to stay calm, still and quiet so as not to arouse an aggressive dog further.
…
A lot of the injury that happens with a dog bite is a crush injury from the pressure. When they actually puncture the skin, a lot of times the injuries that require stitches are caused by the victim pulling away or moving. So when we sort of get grabbed, the more we struggle, the more injury we do, the harder the animal holds, et cetera. So it just leads to greater tissue injury, crush injury and tearing injury.
As to the potential effectiveness of the spray, Dr Ley said:
The attack of Mr Dean was severe and happened very quickly resulting in serious wounds. If he had been provided with a deterrent spray and training, he may have been able to distract the dog, Erkil, sufficiently to allow him to get behind the tree or get out or over the fence. As the suppliers state in the manual for the PetSafe SprayShield it may not deter trained or highly motivated animals from attacking. As no information about Erkil and his training or his personality or reactions to unfamiliar people were provided to me, it is not possible for me to give an opinion if Mr Dean had SprayShield or a similar product, and used it, what effect it would have had on Erkil in the attack. However, I am of the opinion appropriate training in how to behave when charged and attacked by a dog may have resulted in no or less injury to Mr Dean.
‘No or less severe’, I think? --- Yes, ‘less severe’, sorry.
Dr Ley was cross-examined about the incident:
In terms of the two people [sic] involved in the event, the first person being Mr Dean, you’ve agreed that in terms of him standing there not making eye contact, he was in fact doing what you would recommend him do? --- Yes.
Secondly, getting up on the fence trying to get to higher ground in that second phase of the attack after the dog’s already got him, he was doing what you’d recommend him to do? --- Yes.
Dr Ley said that even with the best advice and training, sometimes it came down to trying to minimise the injury.
The cross-examination of Dr Ley concluded:
In terms of that, as you’ve already said, because you don’t know about the history of the dog, you can’t give anything more than a speculative opinion on what the dog may have done, is that right? --- Yes. We can discuss a range of things that the dog may have done and actions that could have happened in responses.
Yes but ultimately, because you don’t know enough about the dog’s history, you would agree your opinion in relation to what the dog would likely have done is ultimately speculative ? --- Yes.
And therefore your opinion about whether Mr Dean’s injury may or may not have been reduced is ultimately speculative as well? --- Yes, that’s why I’ve said ‘may have’.
Dr Ley agreed in re-examination that Mr Dean’s actions in the course of the dog attack were not in accordance with training, namely: striking the dog with the data cap and screwdriver before it bit him; trying to run away from the dog; and punching the dog.
The Corporation called Mr Hardy, its manager of health and safety and well-being. Mr Hardy confirmed that after the attack, dog training had been provided to employees by Canine Services International (‘Canine’) in 2019, and also by Steve Austin later. The Steve Austin training document included the statement that: ‘The more you fight, the more the dog fights!’. The Canine training document contained advice on what to do with an aggressive dog, and how to read a dog’s behaviour.
Mr Hardy agreed that no one could guarantee the success of the training, but there was a real prospect of the training being effective.
Mr Hardy said that citronella spray was not provided by the Corporation before or after the attack. He explained why he decided not to provide the spray:
I believed it was ineffective and I also believed it would give our staff a false sense of security in going into a property which was inconsistent with what our control measures were. Our control measures were to not go into a property. I didn’t want to equip them with something which would make them feel like they were safe to do so.
The PetSafe SprayShield Product Use Guidelines relevantly stated:
Citronella is the active ingredient and presents a strong odor, effectively distracting an attacking dog.
...
2. Effectiveness:
Independent sampling has shown that SprayShield is effective in controlling dogs exhibiting low to medium aggression. It should be noted, however, that while the product has matched the effectiveness of 10% pepper spray on dogs, it may not stop trained attack animals or animals with a strong motivation to attack.
Mr Dean’s injuries and their consequences
In overview, Mr Dean suffered multiple lacerations to the left thigh and a degloving type injury to the left lower leg, as well as superficial wounds to his left shoulder and right ring finger. He was taken to surgery, and was in hospital for 24 days until 15 August 2018 when he was discharged to Hospital-in-the-Home. He suffered from severe ongoing post-traumatic stress disorder and depression.
In terms of medical evidence, Mr Dean’s initial treatment was outlined in a report of Ballarat Health Services. This noted that on the evening of the dog attack on 23 July 2018, Mr Dean was transferred to the operating theatre:
Under general anaesthetic, the left leg wounds were explored, debrided and washed out. It was noted that there were eight deep puncture wounds superior and medial to the knee, with a large volume of dirt and soil. There was a large area of superficial skin loss to the medial left lower leg with a large degloving skin flap. There was a separate large wound and smaller puncture wound to the left lateral lower leg, with transected macerated areas of the tibialis anterior muscle. A VAC (vacuum assisted closure) dressing was applied to the lower leg wound. Wounds were dressed, with a plan for further surgery.
Further washout was performed under general anaesthetic on the afternoon of 24 July 2018, with subsequent skin grafting performed on 7 August 2018 to the left lower leg (with the skin donor sites taken from Mr Dean’s thighs).
Mr Dean gave evidence about his treatment, and the ongoing consequences of his physical and mental injuries. He described seeing his psychologist Ms Hawkes ‘every three weeks or a month now’, and his use of Tramadol-type painkillers ‘now and then’, and sleeping tablets. He said he could not touch the inside of his leg from just under his knee to his ankle, and if he brushed the leg past something it would bleed.
Mr Dean’s domestic partner, Julie Barry, gave evidence relevant to the assessment of damages, and was not cross-examined.
Treating general practitioner Dr Frank Marton gave evidence on matters relevant to his treatment of Mr Dean and opinions regarding the injuries and their impact.
Psychologist Kaaren Hawkes gave evidence as to her treatment of Mr Dean since 17 September 2018. Two reports of Ms Hawkes were tendered. She diagnosed severe and ongoing post-traumatic stress disorder, major depressive disorder and anxiety disorder as a result of the dog attack. She noted that Mr Dean was tormented by nightmares featuring images of bits of his leg being tossed in the air. She described him being in a ‘traumatized state’ with a ‘collapsed sense of self’. She specifically noted that he thought he would die in the attack.
A medico-legal report by Dr Boffa, occupational physician (10 May 2020), was tendered. It included opinions that Mr Dean’s symptoms from his severe left leg trauma with permanent physical and mental impairments resulted in him being incapacitated for employment. He recommended that Mr Dean consider a left below‑knee amputation to improve his quality of life and work capacity.
The judge’s direction and the jury’s decision
In his closing address, Mr Dean’s counsel submitted that had dog training or citronella spray been provided, Mr Dean would have suffered no injury or injury that was less severe in its extent.
After Mr Dean’s counsel, Mr Harrison, had addressed the issues of negligence in closing address, the trial judge then said:
HER HONOUR: The other thing is, that pulling the incident to pieces, I’m not allowing that to go to the jury. There is one incident and there is no concept of, ‘would it have made a difference, i.e., the attack would have happened?’ Fair enough. ‘The outcome would have been less severe’, I’m not letting that go to the jury. That second limb in terms of an answer to question 1, as a matter of law, I’m not letting it go to the jury and I’m not letting it go to the jury that somehow you break up and in effect, are asking the jury to answer about five questions in terms of question 1, if you break the event up.
MR HARRISON: On the evidence, it’s clearly a continuum, it is not - - -
HER HONOUR: On the evidence, all the damage is done pretty much - this is an aside - the damage has done when the dog has gone his leg before he’s done anything.
MR HARRISON: No, that’s not right, Your Honour, with respect. If you read medical opinions, the significant damage to his upper thigh which is - - -
HER HONOUR: I’m not allowing that to go as a split up. There is one incident and would it have made a difference, would the attack not have happened if there was training and/or spray? I don’t know how this works because I haven’t been in this - I am going to correct those points which you say are valid.
MR HARRISON: If that’s Your Honour’s view, I demur.
On the fifth day of trial, 6 March 2024, her Honour directed the jury as follows:
You must decide whether any failure by the defendant to provide training and/or a spray was a cause of the plaintiff’s injuries on the balance of probabilities – was it more likely than not a cause? That is a question in question 1, not a wider issue of whether that training and/or spray would have lessened the severity of the injury. You are to focus on whether it was a cause of the plaintiff’s injuries on that date on the balance of probabilities.
It is not a matter of breaking down the events of that day. There is one incident that you are asked to consider in question 1 and that must be addressed by you in answering that question, rather than breaking it up into different parts of that event.
Her Honour further directed the jury:
[Plaintiff’s counsel] was critical of the way counsel for the defendant put the case as a one punch case, but I direct you that this is one incident. This is one question, one incident and it is not for you to break up the incident into various parts as Mr Harrison invited you to. The question is about the incident.
Mr Dean’s counsel took exception to those directions.
The jury retired to consider their verdict from 2:57 pm to 4:10 pm.
On 7 March 2024, the jury continued deliberations. At 3:51 pm that day, the judge gave a majority verdict direction and sent the jury home until 10:00 am the next day. At 10:22 am on 8 March 2024, the judge gave the following direction in answer to a question received from the jury:
HER HONOUR: Thanks, everyone. So I have got your question: ‘Please provide clarification of direction that we are not ruling on reduced severity of injury. ‘So you will remember what question 1 says: was there any negligence on the part of the defendant that was a cause of injury to the plaintiff? So in this case, was any failure to train or provide spray a cause of injury to the plaintiff? That’s your focus when you’re answering question 1.
It is not a wider issue of whether, if training or spray was provided, the injury was more likely to be less severe. So in direct answer to your question, question 1 is not concerned with the extent of injury or reduced severity of injury, it is just the more simple question, [was] there, in this case, a failure to train or provide spray to the plaintiff that was a cause of his injury. So disregard, as you’ve asked the question, reduced severity of injury, and narrow the question 1 as I’ve directed you. Thanks, everybody.
At 10:58 am, a majority verdict of five of the six jurors was delivered:
ASSOCIATE: What is your answer to question 1: was there any negligence on the part of the defendant which was a cause of injury, loss or damage to the plaintiff?
The foreperson gave the answer, ‘No’, and on that verdict the judge entered judgment for the Corporation.
Did the judge err by directing the jury not to consider the Less Severe Injury case?
We will briefly explain why the Corporation’s concession regarding Mr Dean’s first ground of appeal was correctly made.
The full terms of ground 1 are:
The learned trial judge erred in law by directing the jury that causation was ‘not a wider issue of whether that training and/or spray would have lessened the severity of the injury’ and that there was one incident that could not be broken into parts, when the jury ought to have been instructed that causation required them to be satisfied that the applicant’s physical and psychological injuries (or some of them) would have been avoided or minimised had the employer provided training or the spray, and that this was a question of fact for the jury to decide.
As noted in the text of the proposed ground of appeal, and more fully set out above, the judge directed the jury that the question they were to answer was whether the Corporation’s failures were a cause of Mr Dean’s injuries, and that the jury was not to concern itself with the extent of the injuries or the question of any reduced severity of the injuries.
In opening address, counsel for Mr Dean foreshadowed to the jury that expert evidence would indicate that had Mr Dean been provided with proper training or the animal spray, it would have ‘either meant this incident didn’t happen or it would have been considerably less severe’. In final address, Mr Dean’s counsel informed the jury that:
The real battleground is whether or not proper training and/or a citronella spray would have made a difference such that either the attack would not have happened or the outcome would have been much, much less severe.
Counsel for Mr Dean put to the jury various scenarios, drawing upon the evidence of Dr Ley, whereby had Mr Dean either adopted a different approach to the dog by following training or used the spray, or both, the attack may have been shorter in duration, causing less severe injuries. The Corporation raised no objection to the alternative ways in which Mr Dean advanced his case on the cause of his injuries.
It is clear that the judge was wrong to limit the case to whether, by taking reasonable care, the Corporation could have prevented the injuries to Mr Dean altogether, rather than also considering whether the taking of those steps would have minimised the injuries which he sustained. Not only was the Less Severe Injury case an aspect of the case that Mr Dean ran at trial, but it was available to him as a matter of law. Drawing upon the statement of Barwick CJ in Victoria v Bryar,[3] in Kuhl v Zurich Financial Services Australia Ltd,[4] Heydon, Crennan and Bell JJ said that, in circumstances like the present, the ‘question is whether the taking of a particular step which the defendant did not take “more probably than not … would have prevented or minimised the injury which was in fact received”’.[5]
[3](1970) 44 ALJR 174, 175 (Barwick CJ, McTiernan J agreeing at 175, Owen and Walsh JJ agreeing at 176).
[4](2011) 243 CLR 361; [2011] HCA 11.
[5]Ibid, 397 [104] (Heydon, Crennan and Bell JJ); see also 379 [45] (French CJ and Gummow J).
By telling the jury that they were only permitted to consider the question of whether the Corporation’s steps might have prevented injury (the No Injury case), but not minimised injury (the Less Severe Injury case), the judge misdirected the jury on a matter of law.
Did the misdirection occasion a substantial miscarriage of justice in the trial?
Relevant legal principles
Any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal, which may only be granted if the Court is satisfied that the appeal has a real prospect of success.[6] Even if there is a real prospect of success, the Court retains a residual discretion to refuse leave to appeal. One recognised basis for refusing leave to appeal in that circumstance is when no substantial injustice will be done if the decision stands.[7]
[6]Supreme Court Act 1986, ss 14A, 14C.
[7]Kennedy v Shire of Campaspe [2015] VSCA 47, [14] (Whelan and Ferguson JJA); Muto v Shepparton City Council (2018) 228 LGERA 188, 208 [90] (Kyrou JA, McLeish JA agreeing at 214 [117], McDonald AJA agreeing at 214 [119]); [2018] VSCA 73; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA); Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110] (Kyrou and McLeish JJA).
If leave to appeal is granted, the finding that the judge misdirected the jury as a matter of law does not necessarily mean that, after allowing the appeal, the judgment should be set aside and a new trial ordered. Rules 64.37(1)‑(2) of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) provide:
(1)On the hearing of an appeal, if it appears to the Court of Appeal that there ought to be a new trial, the Court of Appeal may order that the judgment, or the verdict and judgment, be set aside and that there be a new trial.
(2)Unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been occasioned thereby in the trial, a new trial shall not be granted—
(a)on the ground of misdirection;
(b)on the ground of the improper admission or rejection of evidence; or
(c)because the verdict of the jury was not taken on a question which the trial judge was not asked to leave to it.
Other parts of this rule will be considered later in these reasons but, for now, we focus on sub-r (2). Relevantly, it provides that no new trial shall be granted on the ground of a misdirection unless ‘some substantial wrong or miscarriage has been occasioned thereby in the trial’.
If an error of the kind mentioned in sub-r (2) does not occasion any substantial wrong or miscarriage in the trial, no new trial will be ordered. Usually, if not always, the judgment will not be set aside and will therefore stand. A similar final outcome would be achieved if, despite being satisfied that there was a real prospect of success in the appeal, the Court nevertheless refused leave to appeal because it was satisfied that there would be no substantial injustice if the judgment was allowed to stand. Although the two outcomes are similar, they involve different decisions at different stages. The refusal to grant leave would occur before the appeal was heard, on the basis of the ‘prospect’ of success in the appeal, and upon the exercise of a discretion. The denial of a new trial under r 64.37 would take place after leave to appeal was granted, and would follow as a matter of law if the Court thought that the relevant error occasioned no substantial wrong or miscarriage in the trial.
Focusing on r 64.37(2), the requirement that there must be a ‘substantial wrong or miscarriage’ consequent upon the identified error has been expressed in different, although similar, formulations over the years. In the civil jurisdiction, there have been differences in approach between the common law and equity; and, in criminal law, there has been another approach usually reflected in the ‘proviso’ to the entitlement of an appellant to succeed on the appeal if he or she establishes a ground of appeal.
In Balenzuela v De Gail,[8] the High Court considered the difference between the approaches of the common law and equity, and the position under the English rule enacted under the Judicature Act (UK) that is the antecedent of r 64.37 of the Rules. In Weiss v The Queen,[9] the High Court considered the history of the proviso in criminal appeals, also with reference to the equivalent civil rule. The High Court’s approach in Weiss to the criminal appeal proviso has been adopted and applied by appellate courts in New South Wales and Western Australia in the civil context (with modification for the different standard of proof) when construing and applying the equivalent of r 64.37 in other jurisdictions.[10]
[8](1959) 101 CLR 226; [1959] HCA 1 (‘Balenzuela’).
[9](2005) 224 CLR 300; [2005] HCA 81 (‘Weiss’).
[10]Brown v Churchill (2006) 31 WAR 246, 250 [10] (McLure JA, Steytler P agreeing at 248 [1], Pullin JA agreeing at 264 [62]) (‘Brown’); [2006] WASCA 17; Tory v Megna [2007] NSWCA 13, [44] (Spigelman CJ, Beazley JA agreeing at [98], Bryson JA agreeing at [99]) (‘Tory’); Nasr v New South Wales (2007) 170 A Crim R 78; 85 [27] (Campbell JA, Beazley JA agreeing at [1], Hodgson JA agreeing at [2]); [2007] NSWCA 101 (‘Nasr’).
After the trial of an action for damages for personal injuries arising from a motor vehicle collision, the High Court in Balenzuela considered the wrongful rejection of evidence that precisely identified where the collision occurred. Having referred to the consequence of an erroneous exclusion of evidence, Dixon CJ also considered the case of a misdirection in law. He said that a substantial wrong or miscarriage of justice is occasioned if ‘the result of the case is such as to show that [the jury] may have been influenced in their verdict by the misdirection’,[11] or if the misdirection ‘wrongly … expose[s] the party to a hazard that is appreciable and not illusory of a verdict for or against him that otherwise might not have been found’.[12] More generally, his Honour said that to deny a new trial requires ‘sure ground’ that the error ‘would not have affected the result’.[13]
[11]Balenzuela (1959) 101 CLR 226, 233 (Dixon CJ); [1959] HCA 1.
[12]Ibid 236 (Dixon CJ).
[13]Ibid 232 (Dixon CJ).
In allowing the appeal and ordering a new trial, Dixon CJ held that it was ‘enough that evidence definitely material to the determination of the case’ was excluded.[14] Justice Kitto reached a similar conclusion, saying, in a passage later adopted by five judges of the High Court in Mann v Dumergue,[15] that:
a new trial must be granted unless we can say that the jury, proceeding according to law and within the bounds of reason, could not have been led by the rejected evidence, if had been before them, to find a verdict for the plaintiff.[16]
[14]Ibid 237 (Dixon CJ).
[15](High Court of Australia, McTiernan, Taylor, Menzies, Windeyer and Owen JJ, 22 August 1963), as cited in Brown (2006) 31 WAR 246, 262 [54] (Pullin JA); [2006] WASCA 17.
[16]Balenzuela (1959) 101 CLR 226, 237 (Kitto J); [1959] HCA 1.
In Nobarani v Mariconte,[17] the High Court considered whether a substantial wrong or miscarriage was occasioned, and a new trial should be ordered, after the trial judge had denied the appellant procedural fairness in the manner in which the proceeding was conducted. The relevant rule in New South Wales, r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW), was similar in terms to r 64.37 of the Rules, except that it included a fourth ground for ordering a new trial, namely ‘on any other ground’. In a joint judgment, the High Court found that this ‘catch-all’ ground included a denial of procedural fairness.
[17](2018) 265 CLR 236; [2018] HCA 36 (‘Nobarani’).
The Court likened the common law gateway to the power to order a new trial, as applied in Balenzuela and Stead v State Government Insurance Commission,[18] to the statutory requirement for a ‘substantial wrong or miscarriage’. Quoting from Stead, the Court explained the common law approach, namely that the power to order a retrial arose if the appellant showed that the error deprived him or her of the ‘possibility of a successful outcome’. That possibility was only negated if the Court was satisfied that a ‘properly conducted trial could not possibly have produced a different result’.[19] Likewise, in applying the statutory rule, the Court held that the error (in that case, a denial of procedural fairness):
will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference.[20]
[18](1986) 161 CLR 141; [1986] HCA 54 (‘Stead’).
[19]Nobarani (2018) 265 CLR 236, 247 [38] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); quoting Stead (1986) 161 CLR 141, 147 (Mason, Wilson, Brennan, Deane and Dawson JJ).
[20]Nobarani (2018) 265 CLR 236, 248 [39] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ).
The Court in Nobarani did not mention Weiss or seek to apply the principles applicable to the construction of the proviso in criminal appeals to the construction of the civil rule for ordering a new trial. It is not clear whether and to what extent those principles impact the analysis in Balenzeula. For that reason, it is questionable whether it is correct to adopt and apply the principles from Weiss to the construction of the civil rule, as has been done by the Courts of Appeal in New South Wales and Western Australian in the cases referred to above.
Furthermore, it must not be overlooked that the exercise of the power to order a new trial, and the subsequent conduct of a new trial, are two distinct steps. First, this Court is to answer the question whether a substantial miscarriage was occasioned by the relevant error. The answer to that question will either permit this Court to order a new trial or prevent it from doing so. However, it will not determine the outcome of any new trial that thereafter may be ordered. That second step is for the court that hears the new trial. Returning to Balenzuela, Dixon CJ cautioned that, when undertaking the first step, it lay ‘outside the province of the Court to speculate on the effect which [absence of the error giving rise to the substantial miscarriage] would have produced on the jury’.[21] Chief Justice Dixon identified this danger, saying:
The court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred. Care must be taken lest in exercising an authority to decide whether an error of law occurring at the trial is likely to have influenced the result, what is really done is to examine the evidence as if the court were forming a conclusion of fact for itself.[22]
[21]Balenzuela (1959) 101 CLR 226, 236–7 (Dixon CJ); [1959] HCA 1.
[22]Ibid 235 (Dixon CJ).
Finally, in Tory, the New South Wales Court of Appeal observed that the construction of the New South Wales equivalent of r 64.37 was affected by the ‘overriding purpose’ described in s 56 of the Civil Procedure Act 2005 (NSW).[23] The Victorian equivalent of that provision is found in ss 7 and 8 of the Civil Procedure Act 2010 (Vic), which provide:
7Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
…
[23]Tory [2007] NSWCA 13, [28] (Spigelman CJ, Beazley JA agreeing at [98], Bryson JA agreeing at [99]). See also Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468, 501–2 [111]–[112] (Leeming JA, Mitchelmore JA agreeing at 541 [293], Simpson AJA agreeing at 541 [294]); [2022] NSWCA 150.
8 Court to give effect to overarching purpose
(1)A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers—
(a)in the case of the Supreme Court, are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
…
(c)arise from or are derived from the common law or any procedural rules or practices of the court.
When interpreting the words ‘substantial wrong or miscarriage’ in r 64.37(2) of the Rules — to adapt the approach in Tory — this Court is required by ss 7 and 8 of the Civil Procedure Act 2010 to ‘give effect to the overarching purpose’ in exercising its power under r 64.37 to order a new trial on appeal.
Even when the power to order a new trial is available, it remains a matter of discretion as to whether the Court should exercise the power. Whether due to general considerations informing any exercise of a judicial discretion or because of the dictates of the Civil Procedure Act 2010, the Court will (among other things) consider what would promote a just outcome. Factors bearing upon that consideration will differ from case to case. Among them may be, for example, the conduct of the parties below and the extent to which that conduct may have contributed to the error.[24]
[24]Vandeloo v Waltons Ltd [1976] VR 77, 86–7 (Gowans J, Menhennitt and Dunn JJ agreeing at 87) (‘Vandeloo’).
Drawing these principles together, we approach the question whether a substantial wrong or miscarriage has been occasioned in the trial by the identified error of law in this way:
(a)a substantial wrong or miscarriage is occasioned if the identified error deprived the affected person of the possibility of a successful outcome (described as the ‘materiality issue’);
(b)in that case, the Court will exercise the power to order a new trial unless the other party can show a reason to exercise the discretion not to do so, such as that the proper conduct of the trial would not have made a difference to the outcome;
(c)in exercising its power and discretion, the Court is to give effect to the ‘overarching purpose’ defined in the Civil Procedure Act2010, together with other considerations that inform the proper exercise of judicial discretion;
(d)in determining whether a substantial wrong or miscarriage occurred, the Court is not attempting to predict or speculate about what a jury would have done or might do without the error, nor is it seeking to reach a final conclusion on the contested fact; instead
(e)the Court’s task is an objective one, based upon the Court’s own independent assessment of the evidence, making due allowance for the natural limitations of an appellate court.
Submissions
Mr Dean argued that the judge’s misdirection was material in the sense that it deprived him of the possibility of a favourable outcome on the Less Severe Injury case. That is to say, it was open to the jury, properly instructed, to find that some of his physical and psychological injuries could have been less serious had he received training or been provided with citronella spray (or both). If provided with those things, the attack could have been cut short and the dog bites less numerous and less vicious. Not only could his physical wounds have been less severe, but his psychological injury could also have been less severe.
Foreshadowing submissions to be put to this Court should it decide to rehear the whole case itself (assuming an affirmative answer on the ‘substantial wrong or miscarriage’ question), Mr Dean submitted that this Court should find, on the balance of probabilities, that:
(a)he had time to deploy the spray, would have used it and it would have distracted the dog such that it would not have bitten him but instead would have retreated to the control of its owner or been sufficiently distracted to allow him, uninjured, to exit the gate to safety;
(b)with or without the use of spray, had Mr Dean been trained, he would have stopped moving and curled into a ball, instead of aggravating the dog by hitting it, such that on the balance of probabilities:
(i)the dog would not have bit him at all; alternatively,
(ii)he would have suffered superficial wounds only until the dog lost interest in him as a threat; further alternatively,
(iii)although the dog would have bitten him on the left leg, it would have stopped biting him sooner and Mr Dean would have avoided the severity of injury to the left leg and the eight deep puncture wounds around his knee; and
(iv)he would have suffered a less traumatic incident resulting in less prolonged or severe post-traumatic stress disorder.
At this stage of Mr Dean’s argument, the points just addressed were not advanced to persuade the Court to make such findings — that exercise would be relevant only if this Court came to decide the case for itself. Rather, they were advanced to demonstrate lines of reasoning that were open to the jury to accept which, in turn, demonstrate the materiality of the judge’s misdirection.
The Corporation submitted that this Court should deny leave to appeal by exercising its residual discretion, despite a conclusion that the appeal has a real prospect of success. It argued that success on the appeal would not lead to any different result. That is, on the evidence at trial, a jury if properly instructed could not conclude that the Corporation’s negligence caused Mr Dean to suffer any more injuries than he would have suffered in any event. The alternative analysis is that even if leave to appeal were granted (because of the established error), this Court should not order a new trial because no substantial wrong or miscarriage has been occasioned by the error. Either way, the question is whether a proper direction could possibly have made any difference to the outcome.
The Corporation argued that the evidence rose no higher than suggesting that proper precautions (that is, dog safety training or citronella spray) might possibly have resulted in Mr Dean suffering less severe injuries than he otherwise would have suffered. Mr Dean, the Corporation submitted, had to establish that, on the balance of probabilities, the precautions would have prevented him from suffering more severe injuries than he would otherwise have suffered. In short, he had to establish that the Corporation’s failure to provide the precautions caused him to suffer more severe injuries.
In submitting that a proper direction could not have produced a more favourable outcome, the Corporation emphasised the following aspects of the evidence:
(a)the dog’s intent to attack Mr Dean from the outset;
(b)the speed with which the attack happened, depriving Mr Dean of any realistic opportunity to deploy the precautionary strategies;
(c)Mr Dean (allegedly) behaved substantially in accordance with the recommended strategies (staying still, not looking at the dog or aggravating it);
(d)the most severe injuries were suffered in the ‘first part’ of the incident, namely the mauling of Mr Dean’s lower left leg; and
(e)Dr Ley only went as far as saying that the precautions ‘may have’ helped, but she could not say that either the training or the use of the spray would have worked to avoid or reduce the injuries in this particular case: this was sufficiently illustrated when Dr Ley said, ‘I am of the opinion appropriate training in how to behave when charged and attacked by a dog may have resulted in no or less [severe] injury to Mr Dean’.
In conclusion, the Corporation argued that it could only be speculated as to whether Mr Dean’s injuries may have been less severe by him not struggling; the prospect of the dog de-escalating is fanciful and was not even put to the jury; and the possibility of Mr Dean getting away after the initial mauling was not supported by the evidence and, in any event, would not have avoided the severe injuries to the lower leg caused in that initial mauling.
Consideration
The evidence revealed that the attack featured a sequence of related steps. The extent to which each step was separate from another is open to interpretation. Factors influencing that interpretation would include findings made about the distances between points in the yard of the house, the speed at which the dog moved, the state of agitation of the dog and the time available to Mr Dean to react. Leaving those matters aside, the steps described in the evidence were these:
(a)Mr Dean stood up from the water meter and faced the house when he heard the resident call out;
(b)the resident opened the door of the house and the dog emerged;
(c)the dog crossed the space from the door to the place where Mr Dean was standing;
(d)when the dog was within arm’s reach, Mr Dean struck it to the face with the data cap he was holding in his hand and, after the dog ‘spat it out’, struck it several times on its head with a screwdriver which he was also holding;
(e)the dog got its teeth into Mr Dean’s left lower leg, shook him and Mr Dean fell to the ground on his back whereupon the dog continued to maul his lower leg;
(f)the dog stopped biting Mr Dean’s left lower leg and moved to Mr Dean’s left shoulder where it commenced to bite him there;
(g)Mr Dean punched the dog with his right hand, the dog released him and he jumped up, moved to the fence and attempted to escape;
(h)following Mr Dean to the fence, the dog wrapped its mouth around Mr Dean’s upper leg pulling him back to the ground so that he fell again onto his back; and
(i)two tradesmen emerged, and kicked the dog and put it in a headlock to get it off Mr Dean.
The injuries sustained by Mr Dean were, consistently with the stages listed: lower left leg injuries, left shoulder injuries and left thigh injuries. Of those, the injuries to his lower left leg were the worst. On top of that, Mr Dean developed post-traumatic stress disorder of some severity.
Dr Ley gave evidence about the availability and potential effectiveness of strategies to deal with an aggressive dog. Those strategies commenced with what to do when first confronted by a dog through to the positions to adopt once under attack. The strategies were designed, first, to prevent or escape from an attack and, then, to reduce the duration of any attack and the severity of injuries from it. The measures included:
(a)assessing the state of aggression of the dog;
(b)standing still, and resisting staring at or waving arms at the dog;
(c)staying calm, and moving away slowly;
(d)moving behind a barrier or getting to higher ground;
(e)if attack seemed inevitable, spraying the dog to distract it or provide an opportunity to get away from it;
(f)if knocked to the ground, curl up and protect the neck with the hands and arms, and stay still; and
(g)avoid actions that aggravate the dog or keep it engaged (such as hitting or holding it, struggling or pulling away when bitten).
Of course, the provision of such dog safety training and the supply of the citronella spray would not, of themselves, guarantee their use. Mr Dean said that had he been provided with the dog safety training which Dr Ley recommended, and the citronella spray, he believed he would have followed the training and, if appropriate, used the spray. The effectiveness of any of these strategies, it was acknowledged, also depended on the state of agitation of the dog. Beyond a certain stage of agitation, the effectiveness of a number of these strategies to avoid or minimise injury is reduced.
It follows that the possibility that the provision of dog safety training and/or citronella spray would have reduced the duration or severity of the attack, and consequentially the severity of Mr Dean’s injuries, is a function of the assessment of a number of variables:
(a)the state of agitation of the dog and how amenable it was to de-escalation or distraction at various points of the attack;
(b)the speed at which events occurred and the time within which Mr Dean could think and react;
(c)the likelihood that, even given time, Mr Dean would have had the presence of mind and mental discipline to deploy any or all of the cascading options for self‑protection as the attack unfolded; and
(d)the likely response of the dog, at relevant points in time, to the strategies actually deployed by Mr Dean to de-escalate or escape the attack.
It may be thought that, in assessing the possibility of a better outcome for Mr Dean at trial had the jury been properly directed, the Court could begin with the proposition that the jury must at least have found that the availability of dog safety training and/or citronella spray would not have prevented Mr Dean from sustaining some injuries. If that proposition could be assumed, it could rationally affect the assessment of the possibility of a finding that the provision of dog safety training or spray would have reduced the severity of injuries. However, because of the rolled‑up nature of the question put to the jury, it remains possible that the jury decided that, acting reasonably, the Corporation did not need to provide either of the precautionary measures and, thus, the jury did not consider the causation question at all. If that scenario is to be assumed, there would be no point in considering the Less Severe Injury case.
Because the Corporation later adopted the dog safety training as a precautionary measure, and there was no evidence that the inconvenience or cost of supplying dog safety training was a factor influencing the assessment of its reasonableness as a response to the risk, it seems plausible that the jury concluded that the Corporation breached its duty by not giving Mr Dean dog safety training. Even though the Court cannot positively infer that the jury found that the Corporation breached its duty, it is, however, the premise upon which the application for leave to appeal proceeded. At least for the purpose of considering whether a substantial miscarriage occurred by reason of the misdirection, this Court should take it as given that the jury decided that, with either or both the dog safety training and spray, Mr Dean would not have prevented the attack altogether and would still have suffered some degree of injury.
These observations return us to the fundamental question: did the misdirection deprive Mr Dean of the possibility of a successful outcome in the trial, and if so, has it been shown that a proper direction could not possibly have made a difference?
The judge’s direction to the jury was very clear. If it was not clear during the judge’s initial charge, it became completely clear when her Honour answered the jury’s question shortly before they returned their verdict. That is, the judge clearly directed the jury that they were not to consider whether the Corporation’s failure to provide dog safety training or citronella spray (or both) caused Mr Dean to suffer more severe injuries than he would have suffered in any event.
On the facts that we have outlined already, it is very difficult to conclude that the judge’s erroneous direction did not deprive Mr Dean of at least the possibility of a successful outcome. It does not follow that, because Dr Ley expressed her opinions in terms of what might, may or could possibly happen if the recommended precautions were adopted, Mr Dean cannot prove on the balance of probabilities that the Corporation’s failures caused him to suffer injury or more severe injury. It is a matter for the jury, after hearing all of the evidence — including Dr Ley’s opinions and Mr Dean’s evidence — to decide whether the availability of the precautions would have made a difference to the outcome. If directed that they were permitted to consider whether the Corporation’s breach caused Mr Dean to suffer injuries or more severe injuries, it is at least possible that the jury may have concluded that the breach would not have prevented Mr Dean from suffering some injury, but would have avoided him suffering the full extent of the injuries sustained in the attack. The jury would then have proceeded to assess the appropriate amount of damages to compensate Mr Dean for the pain and suffering he sustained by reason of those additional or more severe injuries.
Such an outcome was available as a matter of law and, at least as a matter of possibility, available on the evidence given at trial.
That conclusion means that it fell to the Corporation to persuade us that we ought not to exercise the power to order a new trial in the exercise of our discretion. As already observed, one reason why we may exercise our discretion not to order a new trial is if we were satisfied that a proper direction to a jury on the same evidence could not make any difference to the outcome: that is, on the same evidence, a jury could not be satisfied on the balance of probabilities that the provision of the relevant precautions would have prevented Mr Dean suffering the full extent of the injuries that he in fact suffered.
The Corporation was correct to acknowledge that it faced a high hurdle in persuading the Court to that conclusion.
We are particularly mindful that, in carrying out this step in the analysis, we are not endeavouring to form our own conclusion — as if we were the trier of fact — as to whether the Less Severe Injury case is established on the evidence. Our task remains to consider, objectively, whether, on the evidence, a jury properly instructed could so find.
The phrase ‘substantial wrong or miscarriage’ should be construed in a way that facilitates the just, efficient, timely and cost-effective resolution of the real issues in dispute. We take that to mean, at least, that the phrase should not be construed to preserve to a litigant the opportunity to relitigate the chance of an outcome that does not exist in practical reality, but which exists only as a mere theoretical possibility. If only a mere theoretical possibility, it is unlikely to qualify as a ‘real issue’ in the case.
In effect, the Corporation was urging us to treat the possibility in just this way — nothing more than a theoretical possibility, and not one that has any chance of practical success.
We doubt that considerations of cost, efficiency and timeliness have any bearing at this stage of the analysis. Those considerations seem to be more relevant at the stage of deciding how any rehearing should proceed. A more relevant consideration at this stage, in terms of facilitating a resolution that is ‘just’, is that Mr Dean has been deprived of the chance of success on the Less Severe Injury case through no fault of his own. His counsel advanced the Less Serious Injury case and objected to the judge’s direction.
There is no doubt that there is much that could stand in the way of satisfaction on the balance of probabilities that the availability of training and/or citronella spray would have reduced the severity of Mr Dean’s injuries. A jury could well conclude adversely to Mr Dean on each of the variables we have identified at [94] — that is, that the dog was not amenable to de-escalation at any stage; the attack happened so quickly that Mr Dean would not have implemented any of the protective strategies; or Mr Dean was unlikely to implement them in the face of such a savage attack.
Even so, with the opportunity to see and hear from Mr Dean and assess something of his fortitude and character, the jury might come to more favourable conclusions on some of those variables. On the evidence we have assessed, a jury might think that Mr Dean would have followed the training and used the spray. There was some room for debate as to how quickly the dog approached Mr Dean, and a jury might conclude that he had time enough to react. Evidence was given about different levels of aggression which dogs display, and ways to interpret them, so that a jury might rationally conclude that, despite its menacing posture, the dog was not going to bite Mr Dean until Mr Dean struck it. After mauling Mr Dean’s lower leg, the dog only inflicted superficial wounds to Mr Dean’s left shoulder before he punched it (contrary to training advice) and got up and ran (contrary to training advice). After that, Mr Dean suffered the eight deep puncture wounds to his thigh and thought he was ‘done through’. All of this left scope for a jury to conclude that the attack re-escalated after Mr Dean acted contrary to the training advice, and that re-escalation caused him greater physical and psychological injury.
Finally, whilst the additional injuries to his thigh and shoulder might have been less severe than those inflicted to his lower leg in the initial phase of the attack, a jury could conclude that they were more than trivial and were compensable by an appreciable award of damages. There was some suggestion that, after the dog began attacking Mr Dean’s lower leg in the initial phase of the attack, Mr Dean struggled and fought against the dog (contrary to training advice) and thus may have caused the lower leg injuries to be more severe than they otherwise might have been. In our view, this aspect of the ‘possible better outcome’ analysis begins to approach the merely theoretical line.
In the result, the Corporation has not satisfied us that a proper direction could not have made a difference to the outcome. We see no reason not to exercise our discretion to set aside the judgment and either order a new trial or determine for ourselves the Less Severe Injury case. We now turn to that issue.
Which aspect of the case should be reheard and/or should this Court rehear the case itself?
Having decided that there was a material misdirection at trial, so that this Court has the power to set aside judgment and order a retrial, the question becomes: a retrial of what, and by whom?
Relevant legal principles
Section 14 of the Supreme Court Act 1986 (the ‘Act’) provides:
(1)The Court of Appeal, in hearing and determining an appeal in a proceeding in which there has been a trial by jury, may, despite any enactment or rule of law or practice to the contrary, give any judgment on the appeal that it might have given if the proceeding had been tried without a jury and the findings or verdict of the jury had been the findings of the Judge.
(2)An order for a new trial of a proceeding, whether the proceeding has been tried with a jury or without a jury, may be limited to the question of damages only or to the question of liability only even if at the trial there was an apportionment under the Wrongs Act 1958 or any other enactment.
For the sake of completeness, r 64.36 of the Rules contains a similar power, stating that the Court of Appeal has power to draw inferences of fact, give any judgment and make any order which ought to have been given or made, and to make any further or other order as the case may require.
We have already extracted rr 64.37(1)–(2) above at [68]. Sub-rules (3)–(5) are as follows:
(3)If it appears that any substantial wrong or miscarriage referred to in paragraph (2) affects part only of the matter in controversy or some or one only of the parties, the Court of Appeal may—
(a)give final judgment as to part of the matter or as to some or one only of the parties; and
(b)direct a new trial as to the other part only or as to the other party or parties.
(4)Paragraphs (2) and (3) apply whether or not the proceeding was tried with a jury.
(5)A new trial may be ordered on any question, whatever the grounds for the new trial, without interfering with the decision on any other question.
Section 14 of the Act deals with two separate powers. Starting with sub-s (2), that sub‑section empowers the Court of Appeal, upon a successful appeal from a judgment entered either upon trial by jury or judge alone, to order a new trial by the court that entered the judgment. In such a case, the Court may order a new trial on a limited question — that is, limited to the question of damages or the question of liability.
Sub-section (1) empowers the Court of Appeal, in determining the appeal against a judgment entered after a trial by jury, to give the judgment that it considers ought to have been given at first instance.
Although headed ‘New trial’, r 64.37 also concerns both the power of the Court of Appeal to order a new trial by remitting the matter to the court below, and to give final judgment itself. Where a substantial wrong or miscarriage only affects part of the matter in controversy, sub-r (3) empowers the Court of Appeal to give final judgment as to part and direct a new trial as to the other part. Finally, sub‑r (5) empowers the Court of Appeal to order a new trial by the court below ‘on any question, whatever the grounds for the new trial, without interfering with the decision on any other question’.
It was not always the case that an appellate court, upon a successful appeal, could order a new trial on limited issues. As explained by Kitto J in Pateman v Higgin,[25] the common law once distinguished between the court’s power to order a new trial on all issues and its power to order a new trial confined to one issue only. An appellate court was obliged to order a new trial on all issues if an error of law (such as a misdirection to the jury) led to the verdict of the jury upon which judgment was entered. However, courts had a discretion to limit a new trial to a particular issue if the court judged the verdict to be against the evidence.
[25](1957) 97 CLR 521, 527 (Kitto J); [1957] HCA 62 (‘Pateman’).
Relevantly to the case on appeal in Pateman, that distinction had been abolished by statute in New South Wales under s 160 of the Common Law Procedure Act 1899 (NSW). That Act provided that in any action in which a new trial was granted, the Court may grant such new trial ‘either generally or on some particular point or points only as the Court thinks fit’. Kitto J considered that, with the previous distinction having been set aside,
it would seem that the fundamental guiding principle in choosing between a general and a limited new trial ought to be that which was formerly applied where a new trial was in the discretion of the court: “if on the evidence the court above thinks that justice has not been done, but they shall do more injustice by setting the matter at large again, they may restrict the parties to certain points on the second trial”.[26]
[26]Ibid 527 (Kitto J), citing Hutchinson v Piper (1812) 4 Taunt. 555, 556–7; 128 ER 447, 448; see Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497, 515, 529.
In the same case, Taylor J cited with approval statements from previous cases in which it had been said that a general trial is undesirable unless it is reasonably plain that justice cannot otherwise be done, and that it is a matter for the discretion of the court as to whether such new trial should be general or limited to a question of damages.[27]
[27]Pateman (1957) 97 CLR 521, 531–2 (Taylor J); [1957] HCA 62.
Pausing the consideration of past cases momentarily, it is apparent that s 160 of the Common Law Procedure Act 1899 (NSW) is broader in its terms than s 14(2) of the Act. Section 14(2) only permits a new trial to be limited to a question of damages or of liability, not some other question or issue. That said, rr 64.37(3) and (5) of the Rules arguably enlarge the power conferred by s 14(2) so that, in combination, they empower this Court to order a new trial on any question it considers appropriate to be retried ‘without interfering with the decision on any other question’ (r 64.37(5)).
Pateman concerned the principles to be applied when the appellate court is exercising its power to order a new trial by the court below. Other cases have considered the appellate court’s power to determine for itself the judgment that ought to be entered.
In Murphy v Mark,[28] the Full Court in Victoria was considering an appeal against an award of damages in favour of an injured cyclist on the grounds that the jury’s verdict was excessive and unreasonable. At trial, all issues were contested: the driver’s negligence; whether the cyclist was contributorily negligent; and, if negligence was established, the assessment of damages. The appellant driver was successful in appealing against the quantum of damages and sought a fresh trial of the action on all issues. The respondent cyclist argued that any new trial should be confined to the question of damages.
[28][1977] VR 316 (‘Murphy’).
Sections 19A(1)–(2) of the Supreme Court Act 1958 were in substantially the same terms as ss 14(1)–(2) of the Act. After considering the principles discussed in Pateman in respect of s 19A(2), and deciding that if there were to be a new trial it should be limited to the issue of damages only, the Full Court went on to consider whether it should act under s 19A(1) to determine the issue of damages itself.
The Full Court made observations about the application of sub-s (1) which are pertinent to the present case. They were:
(a)first, it is an empowering section; it is not mandatory;
(b)secondly, acknowledging that a difficulty arises from the fact that the Court is empowered to make an order as if the verdict of the jury had been findings of a judge, and that, whereas a judge will almost always give reasons for their findings a jury never does, that difficulty ought not to stultify the operation of the section;[29]
(c)thirdly, unless a majority of the appellate court could agree on an appropriate quantum of damages in substitution for the judgment below, the issue of damages would have to be retried;[30]
(d)fourthly, it would not generally be possible for the appellate court to make an award of damages where there has been a substantial conflict of evidence relevant to the issue of damages because, without having seen the witnesses, the Court may be unable to resolve the conflict;[31] and
(e)finally, when exercising the power conferred by sub-s (1), the appellate court is not restricted to a view of the evidence most favourable to the plaintiff, but is making an award which, in its view, the evidence justifies, remembering that fair compensation between the parties is what must be arrived at.[32]
[29]Ibid 320 (Young CJ, Barber and Murphy JJ).
[30]Ibid 321 (Young CJ, Barber and Murphy JJ).
[31]Ibid.
[32]Ibid.
In the same year as Murphy, the Full Court considered David Syme & Co Ltd v Mather.[33] In an action for libel, the jury gave a verdict of $40,000 for damages, including for aggravated damages, in favour of the plaintiff. The defendant, a newspaper publisher, appealed principally on the grounds that the damages were excessive, the direction on damages and aggravated damages was inadequate, and the judge was wrong in leaving the possibility of aggravated damages to the jury. Justice Lush (with whom Starke and Kaye JJ substantially agreed) held that the verdict should be set aside because the judge misdirected the jury on the issue of damages and, separately, because the award was excessive.
[33][1977] VR 516 (‘David Syme’).
The next question was whether, pursuant to s 19A(1) of the Supreme Court Act 1958, the Full Court should itself decide what judgment should have been entered or, instead, remit the proceeding for a new trial in the Trial Division. The plaintiff respondent asked that the Court decide the matter for itself, in part because of the prospect that a new trial would be detrimental to his health. The appellant neither consented to nor opposed that application.
After referring with approval to what had been said by the Full Court in Murphy, Lush J took into account the following considerations:[34]
(a)it could be inferred with some confidence that the jury had made a number of identified factual conclusions in relation to matters in controversy, which were not the result of misdirection, and which would provide a foundation for the formulation of a judgment by the Full Court;
(b)it was of some importance that the plaintiff had asked for the Full Court to exercise its own judgment and the defendant did not oppose that request; and
(c)any new trial would be attended with special difficulties — not only the risk to the plaintiff’s health, but also the fact that the manner in which the plaintiff had been treated in the first trial could be taken into consideration by the jury at the second trial in relation to damages, which was ‘a situation which could impart a peculiar and potentially dangerous difficulty to the second trial’.
[34]Ibid 532–3 (Lush J).
In those circumstances, the Full Court considered that the power to give final judgment itself should be exercised.
As Lush J also noted, the Full Court had, in Vandeloo v Waltons Ltd,[35] declined to exercise the power given by s 19A(1) in a case in which the jury had given a verdict which, as a matter of necessary inference, was based upon a finding that the loss of working capacity of which the plaintiff complained was a result of the accident for which the defendant was liable. That verdict had been reached upon conflicting evidence and upon an erroneous charge as to the onus of proof. The result was that there was no finding, untainted by the misdirection, that the plaintiff had lost working capacity as the result of the accident. In those circumstances, the Court declined to undertake the task of making such a finding without seeing and hearing the witnesses.[36]
[35][1976] VR 77.
[36]David Syme [1977] VR 516, 532 (Lush J).
Whether retried by the court below or determined by this Court, the appropriateness of allowing a jury’s verdict to stand, in whole or in part, and rehearing a discrete issue, may be influenced by the degree to which the verdict might have been compromised by the error on which the appeal succeeds. For example, in Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd,[37] the High Court considered whether it could allow a jury’s award for £1,000 on one head of loss to stand when it intended to set aside the judgment of £4,000 because it incorporated an additional award of £3,000 on another head of loss which could not be sustained. Except to the extent that doubt may be cast upon it because of the perversity of the £3,000 award, the £1,000 award was otherwise satisfactorily supported by the evidence. In deciding that they could set aside the judgment for £4,000 and enter judgment for £1,000 in its place, the majority said that:
Whether a jury’s unreasonable finding on one issue or question should be regarded as destructive of any or all of its findings on another, must therefore depend on all the circumstances of the case, particularly the charge of the trial Judge and the whole conduct of the trial. In the present case, there is no reason for supposing that the finding of £1,000 special damages, which is admittedly supported by the evidence, was reached under such circumstances that justice now requires it to be set aside.[38]
[37][1934] 51 CLR 328; [1934] HCA 21.
[38]Ibid 346 (Rich, Evatt and McTiernan JJ).
Finally, any exercise of this Court’s power to order a new trial or to give final judgment itself, or its interpretation of those powers, will involve an exercise of a power that is in the Supreme Court’s statutory jurisdiction or one that arises from procedural rules of the Court. For that reason, the exercise of the power, and the exercise of the discretion as to which power to use, must ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[39]
[39]Civil Procedure Act 2010, ss 7–8.
It is now useful to attempt to distil this discussion of the authorities and relevant statutory provisions into a set of principles that can guide our consideration of which aspect of the case should be reheard and in what forum it should be reheard. In doing so, we emphasise that, insofar as we identify discretionary considerations, they are not intended to be comprehensive — discretionary considerations are not amenable to an exclusive list. The principles we have identified are set out below:
(1)On an appeal from a judgment entered upon the verdict of a jury in a civil trial, there is clear power for this Court to determine for itself what final judgment ought to be given (‘Court of Appeal determination’).[40]
[40]Supreme Court Act 1986, s 14(1) (the ‘Act’).
(2)If the substantial wrong or miscarriage in the court below affected part only of the matter in controversy, in making a Court of Appeal determination this Court may give final judgment as to that part only.[41]
[41]The Rules, r 64.37(3)(a).
(3)In making a Court of Appeal determination, this Court may treat the verdict of the jury as if it was the finding of a judge made in a trial without a jury.[42]
[42]The Act, s 14(1).
(4)On an appeal from a judgment entered in a civil trial, this Court has the power to set aside that judgment and order a new trial in the court from which the judgment was appealed (‘new trial below’).[43]
(5)The new trial below may be confined to the question of liability only or damages only,[44] or, where the substantial wrong or miscarriage affected part only of the matter in controversy, to that part;[45] and it may be ordered on any question without affecting the decision on any other question.[46]
(6)In exercising its discretion whether to order a new trial below on a limited issue, or on all issues, or, instead, to make a Court of Appeal determination, this Court will consider where the greater risk of injustice lies,[47] and how to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[48]
(7)Although this Court may have difficulty inferring from the jury’s verdict what findings it made, that difficulty ought not to stultify the Court’s power to make a Court of Appeal determination;[49] nevertheless the degree of confidence that the Court has in discerning what the jury decided, so as to provide a factual foundation for its own determination, is a relevant factor to consider in choosing which course to take.[50]
(8)The preferences of the parties themselves — and their reasons for those preferences — are relevant considerations, particularly in considering the course which best promotes the interests of justice.[51]
(9)This Court should not determine the matter itself if to do so would require it making findings on contested facts that the Court may not be able to resolve without seeing and hearing the witnesses give evidence.[52]
(10)If the appeal is allowed because of a material misdirection to the jury, and the decision made upon the erroneous direction might have tainted or compromised the decisions on other questions, it may not be appropriate to order a new trial below or make a Court of Appeal determination that is limited to the decision that is the subject of the misdirection and which allows the decisions on the other questions to stand.[53]
Submissions
[43]The Rules, r 64.37(1).
[44]The Act, s14(2).
[45]The Rules, r 64.37(3)(b).
[46]Ibid r 64.37(5).
[47]Pateman (1957) 97 CLR 521, 527 (Kitto J),, 531–2 (Taylor J); [1957] HCA 62.
[48]Civil Procedure Act 2010, ss 7–8.
[49]Murphy [1977] VR 316, 320 (Young CJ, Barber and Murphy JJ).
[50]David Syme [1977] VR 516, 532–3 (Lush J).
[51]Ibid.
[52]Murphy [1977] VR 316, 321 (Young CJ, Barber and Murphy JJ); Vandeloo [1976] VR 77, 87 (Gowans J, Menhennit and Dunn JJ agreeing at 87).
[53]Coroneo [1934] 51 CLR 328, 346 (Rich, Evatt and McTiernan JJ); [1934] HCA 21.
As noted, Mr Dean’s position is that the Court should order a new trial in the County Court before a jury on all issues. As also noted, if this Court considers that a further hearing should be held on all issues, the Corporation agrees that there should be a new trial, by jury, in the County Court.
Mr Dean’s argument had a number of elements. His starting point was that, if this Court allows the appeal and sets aside the judgment, that will be because the judgment was given on a wrong basis. In those circumstances, the verdict given on the No Injury Case cannot stand as a ‘partial verdict’. The matter needs to be reheard on both limbs (that is, the No Injury and Less Severe Injury cases). Mr Dean argued there was no juridical basis for setting aside the judgment and ordering a new trial whilst also holding on to the verdict in favour of the Corporation on the No Injury Case.
If this argument is correct, Mr Dean submitted, the only available course once the appeal is allowed is to determine all issues afresh. Because the Corporation agrees that a rehearing of all issues should only occur by way of new trial in the County Court, that is what should happen.
Apart from that legal argument, Mr Dean relied upon a range of other reasons why it would be more desirable to have a new trial on all issues than for this Court to decide the limited issue of the Less Severe Injury case. Some amount to reasons in favour of a new trial; some amount to reasons against this Court determining a limited issue; and others are general discretionary considerations. In summary, Mr Dean submitted that:
(a)because the Court cannot know whether the Corporation’s breach was constituted by lack of training, or spray, or both, this Court would be required to start afresh by making findings of fact in relation to breach in order to make relevant findings on causation;
(b)this Court does not have the benefit of seeing and hearing the evidence of Mr Dean and Dr Ley to assess the nuances of their evidence;
(c)there are relevant factual findings in contest, including the timing of the initial attack and the opportunity available to Mr Dean to deploy the precautionary and protective measures, and whether Dr Ley supported the appropriateness of Mr Dean’s attempt to run for the fence or not;
(d)Mr Dean wishes to adduce further expert evidence;
(e)Mr Dean sought a trial by jury, including on the Less Severe Injury case, but lost the opportunity for such a trial through the error of the trial judge;
(f)having acquiesced in the judge’s error, the Corporation ought not to enjoy the tactical advantage of avoiding a trial whereby a jury, properly instructed, reaches a verdict;
(g)the trial was not so long that it would be burdensome on the parties to have it retried;
(h)on the assessment of damages, the jury will have the benefit of a view of Mr Dean’s leg as part of seeing and hearing witnesses; and
(i)the prospective cost-saving by having this Court determine the limited issue is not a sufficient reason to deprive Mr Dean of his entitlement to a trial by jury.
The Corporation submitted that this Court has clear power to give judgment on a limited issue arising from a successful appeal from a judgment entered upon a verdict given by a jury. It relied upon s 14(1) of the Act and the decisions in Murphy, Syme and Vandeloo.
The Corporation concentrated on the argument that the only issue that ought to be decided is the Less Severe Injury case. If that submission is accepted, the Corporation argued, there is no reason why this Court should not determine that limited issue and very good reasons why it should.
The Corporation advanced the following arguments:
(a)the misdirection concerned only the Less Severe Injury case — otherwise, the No Injury case was clearly articulated by both sides, the subject of an adequate charge, and determined by the jury in a manner that was unaffected by the misdirection on the Less Severe Injury case, such that there is no justification for it having to be determined again;
(b)The real difference between loss on the Less Severe Injury case and the loss on the No Injury case is represented by excluding the horrific injury to the lower left leg from the total injuries;
(c)Mr Dean did not prove any ongoing disability or injury related to the phases of the attack beyond the attack on his lower left leg, and the potential quantum of damages on the Less Severe Injury case is (at its very highest) minimal;
(d)the Less Severe Injury case does not involve any issues of credit, nor turn on the demeanour of any witness;
(e)the evidence at trial was largely uncontroversial and there was little cross‑examination and no conflicting experts on liability or quantum;
(f)the time and expense of a new trial would be significant; and
(g)even if Mr Dean was successful in establishing the Less Severe Injury case on a new trial, the quantum of damages would likely be dwarfed by the costs of that new trial and the disproportionality is extreme, and the overarching purpose in the Civil Procedure Act 2010 is to be applied.
In oral submissions, the Corporation stressed the way in which the trial proceeded. It submitted that the evidence that was led (from Mr Dean, Dr Ley and the medical evidence) was weak in demonstrating any additional injury beyond that which was suffered to the lower left leg. On the trial as conducted, the prospect that the jury would have awarded any substantial damages for the ‘more severe injuries’ above and beyond those that were referable to the horrific injuries to the lower left leg, was very low. If the proceeding goes back for a new trial, Mr Dean will have the opportunity to improve his case and the Corporation will lose the benefit of the verdict on the No Injury case on a fairly-run primary causation case. Such unfairness to the Corporation must be taken into account.
Drawing its arguments together, the Corporation argued that:
(a)it won fairly on the primary No Injury case in the County Court;
(b)the potential quantum of damages on the alternate Less Severe Injury case is minimal;
(c)it is more cost-effective to have the Court of Appeal determine the Less Severe Injury case; and
(d)at trial, Mr Dean’s counsel made no attempt to delineate separate questions which the jury should answer in order to give its verdicts on the alternative causation cases and it is difficult even now to frame what those questions would be.
Decision
The first issue to decide is whether this Court has the power to set aside the judgment entered for the Corporation and yet retain the finding that the Corporation did not, by its negligence, cause at least some injury to Mr Dean — in other words, retain the verdict on the No Injury case. In our view, it is clear that the Court has the power to do so. Whether it chooses to do so is a different matter. Contrary to Mr Dean’s submission, there is a clear juridical basis for such a course.
Section 14(1) of the Act is very broad in its terms and is wide enough to permit the Court to do so. Consistently with that construction, the provision expressly allows the Court to give judgment on the basis that the verdict of the jury be treated as the equivalent of a finding or findings made by a judge in a trial without a jury. When a particular finding made by a judge is not challenged in an otherwise successful appeal, the Court may give a final judgment on the basis of that unchallenged factual finding. So too if a verdict reflects an unchallenged factual finding. In this case, it is not challenged — or, at least it is presumed — that the jury’s verdict carried the finding that the Corporation’s breach did not prevent Mr Dean from suffering some degree of injury.
Mr Dean’s argument appeared to equate a verdict with a judgment. They are not the same thing. Setting aside the judgment entered upon the verdict is not necessarily the same thing as dispensing with the verdict itself. The verdict is the jury’s collective finding of all facts necessary to reach the conclusion inherent in the verdict.[54] Taken by itself, the verdict imposes no liability. The judgment is the legally effective act of the trial judge entered as a consequence of the verdict. A party to a civil trial in the County Court appeals against a judgment, not against a verdict.[55] Accordingly, in this case, the Court can set aside the judgment — because it does not allow for a finding in Mr Dean’s favour on the Less Severe Injury case — yet adhere to the finding, inherent in the verdict, that Mr Dean failed to establish the No Injury case.
[54]See NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546, 584 [78] (French CJ, Kiefel and Bell JJ); [2016] HCA 33; Stead v Fairfax Media Publications Pty Ltd (No 2) (2021) 386 ALR 237; [2021] FCA 65.
[55]County Court Act 1958, s 74(1).
The Full Court’s decision in Murphy confirms that upon hearing an appeal from a judgment entered upon a verdict given by the jury, this Court, exercising the power in s 14(1) of the Act, can elect to determine only part of the initial matters in controversy.
The real issue, then, is whether this Court should give final judgment on the Less Severe Injury case alone, or remit the proceeding to the County Court for a new trial on all issues.
Mr Dean first focused on why this Court should not make a Court of Appeal determination.
The first reason for not doing so, he argued, is that the Court cannot know whether the jury found a breach of duty and, if so, on what basis (that is, no training, or no spray, or both). Strictly for this purpose alone, the Corporation sought to overcome that difficulty by making the concession that it breached its duty on both bases.
A number of possible findings could explain the jury’s verdict. They are that the Corporation:
(a)did not breach its duty by not providing either dog safety training or citronella spray and it was not necessary to consider whether either would have been effective to prevent any injury from occurring;
(b)did not breach its duty by not providing dog safety training and only dog safety training could have prevented any injury from occurring;
(c)did not breach its duty by not providing citronella spray and only citronella spray could have prevented any injury from occurring;
(d)breached its duty by not providing dog safety training, or alternatively citronella spray, or alternatively both, but Mr Dean would not have obeyed the training or deployed the spray;
(e)breached its duty by not providing dog safety training, or alternatively citronella spray, or alternatively both, and even though Mr Dean would have obeyed the training and/or deployed the spray, the dog would not have ceased to attack or caused any less severe injury.
The premise upon which the Court is asked to give its final judgment on the Less Severe Injury case is that the No Injury case failed. As indicated above, that failure might have occurred for a number of reasons. The Corporation’s concession on the breach of duty has some utility but it does not entirely solve the problem that this Court is unable to infer relevant factual findings made by the jury.
Implicitly, the failure of the No Injury case, with an assumed finding of breach, means that the dog safety training, citronella spray or both would have been inadequate to prevent the attack and at least some injury. Therefore, to decide only the Less Severe Injury case on a basis that is consistent with the No Injury case, the Court would need to know why it was found that, even with the provision of training or spray or both, Mr Dean still would have suffered some injury. Further, in order to identify the ‘more severe’ injuries Mr Dean would have suffered due to the negligence of the Corporation, beyond those that would have been suffered without the precautions, the Court may need to know what injuries or degree of injury the jury thought would have been inflicted in any event. There is no sound way by which conclusions on these matters can be inferred; they may only be speculated upon.
For example, in trying to determine whether having citronella spray available would have lessened Mr Dean’s injuries, the Court would be assisted to know if a finding was made that Mr Dean would have deployed the spray if it had been supplied to him. The same could be said about dog safety training. But the Court does not know these things. Hence, there is scope for inconsistent findings between the jury, on the one hand, and this Court on the other. The jury might have considered that even if provided with training or supplied with citronella, Mr Dean would not have availed himself of either. Or he may have done so, but the dog would not have been deterred. This Court might find differently.
Any determination of the Less Severe Injury claim by this Court, built upon the verdict of the jury on the No Injury case and assuming a finding of breach, will, at best, be opaque and, at worst, inconsistent with the ‘partial’ judgment.
As has been said, this difficulty should not stultify the power of the Court to give final judgment. But that is not to say that the difficulty is irrelevant to the exercise of the discretion whether to use the power. The dimension of the difficulty may differ from case to case. In Murphy, it was considered relevant to the Court’s choice to exercise the power in s 19A(1) of the Supreme Court Act 1958 (the predecessor of s 14(1) of the Act) that a number of factual findings could be inferred from the jury’s verdict to assist the Court in making its own decision.
A determination of one part of the claim by a jury, and of another part by a bench of three judges who are unable to infer with any confidence the factual findings of the jury, when their respective factual findings should, ideally, be consistent, involves fragmentation in the determination of the whole proceeding. Fragmentation, with the potential for inconsistent findings of fact within the same proceeding, could erode confidence in the integrity of the judicial process. Significant countervailing benefits would be needed to outweigh that disadvantage.
A second reason advanced against this Court determining the Less Severe Injury case was that there were some contested facts the resolution of which would be aided by seeing and hearing the witnesses. Two issues suggest that there is some substance to this argument. First, as mentioned, findings must be made as to whether Mr Dean could have (in the time and space available) and/or would have (depending on his fortitude and presence of mind) deployed the spray or adopted the passive postures recommended by the dog safety training. Given that the ultimate conclusion on whether he would have sustained less serious injuries is likely to turn on finely balanced judgments about the time he had available to react, and his probable behaviour in the face of danger and pain, we consider that it is preferable that the fact-finder have the ability to assess his demeanour and manner of giving evidence about what he claimed he could and would have done. The second issue is the assessment of the injuries and their impact on Mr Dean’s enjoyment of life for the purpose of assessing any damages. As well as the advantage of hearing directly from Mr Dean and his partner on that issue, it would be advantageous to view the scarring and cosmetic effects of the injury.
These issues feed into the value to Mr Dean in having his case determined by a jury, as he sought, rather than a bench of appellate judges viewing only the trial record. In Trevor Roller Shutter Service Pty Ltd v Crowe,[56] this Court referred to the well‑established principle that a person who gives notice for trial by jury in accordance with the rules of court has a prima facie entitlement to trial by jury which that party ought not to be deprived of without good cause.[57] Mr Dean gave notice he wanted to have his matter heard by a jury. He therefore had a prima facie entitlement to have his whole claim — on both limbs of causation and, if he were to be successful, on the assessment of damages — heard and determined by a jury of his peers. Through no fault of his own he has been denied that entitlement insofar as his claim was based on the Less Severe Injury case. Mr Dean should not be deprived of his entitlement without good cause.
[56](2011) 31 VR 249; [2011] VSCA 16 (‘Trevor Roller’).
[57]Ibid 259–60 [39]–[41] (Warren CJ, Nettle and Ashley JJA), citing Mitchell v Wachter [1961] VR 537; Pezzimenti v Seamer [1995] 2 VR 32; Victoria v Psaila [1999] VSCA 193.
The Corporation endeavoured to show good cause through a combination of arguments. The first was an attempt to dilute the merit of Mr Dean’s entitlement by showing that his Less Severe Injury case was not pleaded, not the subject of medical evidence and, to an extent, only emerged in the running of the case. There was little merit to this aspect of the Corporation’s argument. The Less Severe Case was clearly opened and was not the subject of any objection by the Corporation. Evidence was led of an attack that occurred in phases so that, at least in theory, there was scope for the overall attack to be interrupted at certain points. The expert evidence spoke in terms of both avoidance of an attack, and reduction in the severity of injuries from an attack, by the use of the precautions. Considering these matters, we conclude that there is no basis to contend that Mr Dean’s entitlement to a jury trial on the second limb of causation was somehow weakened by the manner in which he conducted the proceeding.
More persuasively, if the proceeding is remitted to be heard again on all issues, the Corporation will lose the benefit of a verdict in its favour, determined by a fairly conducted trial, on the No Injury case. It will have to win again, this time after Mr Dean has the opportunity to improve his case through the experience of the first trial and even by calling further expert evidence (as he has foreshadowed he will do). The Corporation submitted that this would be unfair.
This argument has some force. Against it, however, the predicament in which the Corporation finds itself is, to some extent, one of its own making. It acquiesced in the judge’s direction that the jury not consider the Less Severe Injury case, while conceding in this Court that that direction was erroneous. The predicament the parties now face is that either Mr Dean loses his opportunity to have the whole of his claim heard before a jury, when he has done nothing wrong, or the Corporation loses the benefit of retaining a favourable verdict on part of the case, when it was partially complicit in, or at least had the opportunity below to seek to prevent, the error that requires the judgment to be set aside. On that calculus, Mr Dean’s interests are ahead.
Another submission on the Corporation’s part is that a Court of Appeal determination on the limited issue will save time and cost compared to a determination achieved through a new trial below on all issues. The trial took six days and it is likely another trial will take a similar amount of time. Undoubtedly, a new trial will involve more cost to the parties themselves, as well as the devotion of more trial resources in the County Court and the vexing of another jury. By contrast, the hearing in this Court is complete. That said, to make a determination in this Court, the judges will need to consider the materials, make a decision and write reasons for judgment. Those tasks are not ‘cost-free’. Furthermore, cost savings that are no more than the inevitable saving achieved because the trial is by judge alone rather than by jury are generally insufficient cause to deprive a party of their entitlement to a trial by jury.[58]
[58]Trevor Roller (2011) 31 VR 249, 260 [41] (Warren CJ, Nettle and Ashley JJA); [2011] VSCA 16.
On balance, however, we consider that the consideration of cost and timeliness favours a Court of Appeal determination.
As for ‘efficiency’, it is tempting to think that because the result will probably be faster if there is a Court of Appeal determination, therefore it would be more ‘efficient’ to take that course. Weighing against that conclusion, however, is the prospect of the fragmentation of the judicial process mentioned earlier.
Finally, as noted, the Corporation relied upon an argument that the likely damages that Mr Dean would obtain on the Less Severe Injury case alone are relatively small. From that it argued that the lack of proportion between the cost of obtaining that award by a new trial below and the benefit to Mr Dean in obtaining it is another factor supporting a Court of Appeal determination.
It is difficult to know what weight to give to this argument. Mr Dean puts a figure of $250,000 on the damages he claims on the Less Severe Injury case. We would agree with the Corporation that a high percentage of Mr Dean’s overall injuries, including the consequential psychological injury, stem from the horrific injuries sustained from the attack on his lower left leg. That is not to say that the injuries to his upper left leg are insignificant injuries. It is also possible that his psychological injuries were made appreciably worse by the duration of the attack and because he believed he was about to die when he was dragged down from the fence and fell to the ground in the later phase of the attack.
It is, perhaps, unrealistic to consider that the greater proportion of his overall injuries was sustained after the dog ceased mauling his lower left leg, as Mr Dean’s figures for damages as submitted to us in argument might imply (that is, $400,000 for the No Injury Case, but if it fails, $250,000 for the Less Severe Injury case). A possible explanation for that distribution is, as Mr Dean submitted, that his lower left leg injury would have been less severe because, first, he would not have aggravated the dog by striking it as he did and, second, he would have obeyed the training and lay curled up and still, thereby avoiding tearing injuries that resulted from him struggling while the dog’s teeth were in his leg. We have already stated that we view this possibility as lying at the margins of plausibility. In the result, while we are not persuaded that the damages that Mr Dean might obtain on the Less Severe Injury claim are negligible, we do not think they are likely to be very substantial.
There is therefore a real risk that the benefit of an award to Mr Dean might barely justify the cost of pursuing it. Of course, it would not be the first time that the pursuit of a just claim will involve disproportionately high expenditure. Justice cannot solely be measured by the cost/benefit analysis. Further, these issues might be best left to the parties for their consideration in seeking to resolve the matter, rather than as a prominent driver in the Court’s decision as to which course is best to take.
Overall, we think the result that best facilitates the just, efficient, timely and cost effective resolution of the real issues in dispute is to order a new trial by jury in the County Court. It will be a trial of all issues, not one limited to any specific question. We place weight on Mr Dean’s choice of mode of trial which he lost without fault, and the possibility of inconsistent factual findings because this Court cannot know what the jury found. Even so, the extent to which we have had to examine, consider and explain our weighing of factors in order to decide which course to take is a reflection of how finely balanced they are.
Conclusion
In summary, to repeat what we stated at the outset, we have concluded that the judge erred in directing the jury not to consider the Less Severe Injury case; that error occasioned a substantial wrong or miscarriage in the trial; and, the Court’s power to order a new trial or give final judgment having been engaged, there should be a new trial by jury in the County Court on all the issues joined in the proceeding.
The application for leave to appeal will be granted, the appeal allowed, the judgment in the County Court set aside, and the proceeding remitted to that court to be retried.
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