Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd - [2014] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0248
LINDA HUDSPETH
v
SCHOLASTIC CLEANING & CONSULTANCY SERVICES PTY LTD
and
THE ROMAN CATHOLIC TRUST CORPORATION FOR THE ARCHDIOCESE OF MELBOURNE

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JUDGES	WARREN CJ, TATE and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 October 2013
DATE OF JUDGMENT	6 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 3
JUDGMENT APPEALED FROM	[2013] VSC 14 (Dixon J)

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ACCIDENT COMPENSATION – Negligence – Jury trial – Closing address of one defendant’s counsel – Allegation that plaintiff’s legal team attempted to deceive the jury – Application to discharge jury refused by trial judge – Duty of trial judge – Applicable principles – Whether trial judge’s discretion miscarried and to allow the decision to stand would be inimical to the interests of justice – Complaints in closing address justified but went too far – Directions given by trial judge were inadequate to meet the prejudice and unfairness which arose to plaintiff – Appeal allowed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G Uren QC with Mr A Ingram	Slater & Gordon
For the First Respondent	Mr J Noonan SC with Mr C Young	Minter Ellison
For the Second Respondent	Mr J Ruskin QC with Mr M Hooper	Wotton + Kearney

WARREN CJ:

The facts of this matter are set out in the reasons of Whelan JA, which I gratefully adopt. The trial, which was before a jury, concerned the appellant’s claim for damages for personal injuries allegedly suffered in the course of her employment while working as a cleaner at a suburban school. The appeal largely concerns whether the trial judge erred in failing to discharge the jury following statements made by senior counsel on behalf of the second respondent (‘the school’) in his closing address.

Grounds 1-3: Discharge issue arising from closing address

As Whelan JA notes, the closing addresses began on 3 December 2012, after the trial had been running for 16 days. Senior counsel for the school went first and commenced his address shortly after 10.47 am. Counsel began by discussing the mechanism of the appellant’s accident and focused on drawing out various inconsistencies between the evidence given by the appellant and that of an expert witness called by the appellant, Dr Cubitt, and other lay witnesses, as to the circumstances surrounding the accident.

The appellant’s capacity as a historian was squarely in issue at the trial. In the address of counsel for the school, the appellant’s version of events was scrutinized. It was put directly to the jury that the appellant was an unreliable historian. There was also stringent analysis and criticism of the evidence of Mr Dohrmann, another expert retained by the appellant.

At 11.31 am, there was a short adjournment and approximately 10 minutes later, the jury returned and senior counsel for the school continued. Counsel informed the jury that he would move to a new topic and proceeded to focus on the inconsistencies which he alleged existed between the account given by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSCA 3
Decision Date: 6 February 2014

CaseChat Overview and Summary

In Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd, the plaintiff sought compensation for injuries sustained in a workplace accident. The defendant, Scholastic Cleaning and Consultancy Services Pty Ltd, was accused of negligence. The case was heard in the County Court of Victoria. The plaintiff alleged that the defendant failed to provide a safe working environment and that this failure resulted in injuries. The defendant denied the allegations and the matter proceeded to a jury trial.

The legal issues that the court had to decide centred on the propriety of the trial judge's handling of the situation where counsel for the defendant, during their closing address, made allegations against the plaintiff's legal team, claiming that they attempted to deceive the jury. The plaintiff's counsel objected to these allegations and sought the discharge of the jury. However, the trial judge refused to discharge the jury and instead directed them to disregard the allegations. The plaintiff argued that the trial judge's decision was an error and that it had prejudiced the plaintiff's case.

The court found that while the complaints in the closing address were justified to some extent, they went too far. The court held that the trial judge had a duty to ensure that the trial was conducted fairly and that the jury was not influenced by improper comments. The court determined that the directions given by the trial judge were inadequate to address the prejudice and unfairness that arose from the defendant's counsel's comments. The court concluded that the trial judge's discretion had miscarried, and allowing the decision to stand would be inimical to the interests of justice. Consequently, the appeal was allowed.

As a result of the court's decision, the matter was remitted back to the County Court for a new trial. The court did not make specific orders regarding the compensation claim but indicated that the new trial would provide an opportunity for the issues to be properly determined.

Orders