Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd
[2014] VSCA 3
•6 February 2014
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 | |
---
| 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) |
---
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.
---
| 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 the appellant at trial and the ‘assumed facts’ as set out by Mr Dohrmann, which were based on his interview with the appellant shortly after her accident. Approximately eight minutes into this topic, senior counsel made the remarks which formed the basis for the application by the appellant that the jury be discharged:
This [referring to the alleged inconsistency in the versions of events] was recognised during the course of the trial by the legal team acting for the plaintiff and led to Mr Dohrmann being instructed to alter his report and to change many of the assumed facts so that an appearance of consistency would be provided to you. If that had happened, then you would have been misled. The plaintiff’s legal team and Mr Dohrmann, however, didn’t get away with it. Their attempt at deception to you about the assumed facts was exposed.
- - -
In this case the plaintiff’s legal team imposed on Mr Dohrmann to abandon his duty to the Court for the purpose of obtaining a forensic advantage for the plaintiff, namely, to present her as a reliable witness when indeed the opposite was true. Mr Dohrmann, acting in accordance with the rules of conduct, should have resisted that pressure and refused to alter his report because he would have honestly believed that he had set out her version of events as she narrated them to him out at the [school]. But no, you know, he prepared a third report meekly complying [with] the request of the plaintiff’s team.
Senior counsel for the school’s address concluded at 12.51 pm that afternoon when the jury left for lunch.
At the conclusion of the school’s closing senior counsel for the appellant foreshadowed that an application would be made for the discharge of the jury. The application was made when the Court returned after lunch.
The trial judge, after discussion with counsel and having reviewed the transcript, proposed that the first respondent (‘Scholastic Cleaning’), the appellant’s employer, commence its address and indicated that he would deliver a ruling on the application the following morning, prior to the appellant beginning her address. His Honour did so, and refused the application. His Honour stated that he was ‘satisfied that a proper basis was established in cross-examination’ for the comments made by senior counsel for the school. He noted both that the appellant had not yet closed her case when Mr Dohrmann was cross-examined and so was in a position to address the issues raised by the comments, and that no point was taken by counsel for the respondents seeking an explanation of the involvement of the appellant’s legal team in procuring a third report from Mr Dohrmann which was not served on them.[1] His Honour went on:
The issues addressed by [senior counsel for the school] in his address are relevant, except in one respect that I will explain, and I do not consider that [counsel] made those observations calculating to improperly influence the jury.
[1]The circumstances in which this report was procured are set out in the reasons of Whelan JA.
His Honour referred to various authorities including Baulch v Lyndoch Warrnambool Inc,[2] Croll v McRae[3] and Smout v Smout & Anor[4] and observed that the Court had the discretion to discharge the jury if by reason of inflammatory, irrelevant or prejudicial material in counsel’s address, the trial judge considered that a fair trial was no longer possible.
[2](2010) 27 VR 1 (‘Baulch’).
[3](1930) 30 SR (NSW) 137.
[4][1989] VR 845 (‘Smout v Smout’).
His Honour continued:
As I have outlined, in my view [counsel] mostly had a solid foundation for his comments to the jury. However, I am concerned that a false issue may be discerned by the jury and rise inappropriately in their deliberations, which is whether the largely unexplained involvement of the plaintiff’s legal team in the conduct of Mr Dohrmann warrants characterisation of the conduct of the legal team, and [senior counsel for the plaintiff] as its head, in the same terms as [senior counsel for the school] puts against Mr Dohrmann. [Senior counsel for the school] has eschewed that intention and on considering the whole of his address on this aspect of the matter, I am satisfied that he has directed the thrust of his submissions to two relevant issues that I broadly describe as whether Mr Dohrmann is an unsatisfactory and unimpressive expert witness and whether the plaintiff is a reliable historian about the events in April 2005.
Nonetheless, a false issue might be placed in the minds of the jury that they may not just use the evidence about the interaction between Mr Dohrmann and the plaintiff’s legal team since the trial commenced to evaluate the evidence of Mr Dohrmann, and having done that, draw inferences about the plaintiff as an historian, but can go further and draw adverse conclusions about the plaintiff’s legal team itself, that they or some of them have been deceptive or sought to mislead the court, or even that the plaintiff Mrs Hudspeth may be part of, or responsible for, that conduct. Permitting a submission that raises the prospect of that false issue raises a prospect there may be unfairness to Mrs Hudspeth in the conduct of the trial.[5]
[5]Hudspeth v Scholastic Cleaning & Ors, Ruling made 4 December 2012 (‘Ruling’).
His Honour then referred to the fact that it appeared to him that the jury were ‘applying themselves assiduously to their task’ and stated that he was satisfied that an appropriate direction could be given about the ‘false issue’, which he proceeded to discuss with counsel.
His Honour concluded:
I agree with the view of all counsel that it is preferable that [senior counsel for the plaintiff] have the opportunity to address the jury as he sees fit and that an immediate direction will inappropriately highlight what is not an essential or crux issue in the case. I have no doubt that the jury will, in the meantime, consider fairly [senior counsel for the plaintiff’s] address without perceiving him as speaking from a position of having previously attempted to deceive them.
As was discussed (and expressly agreed to by counsel for the appellant), a direction was not given immediately.[6] Instead, senior counsel for the appellant delivered his closing address and the direction was not given until shortly before lunch on Monday 10 December 2012. As counsel for the appellant would have known the estimated duration of his address, he could be taken to have understood there would be a gap of some days before the jury heard from the judge on the topic.
[6]I note however that senior counsel for the appellant requested that a direction be given ‘immediately’ during discussion in the afternoon on 3 December 2012. This was the subject of discussion between the judge and counsel. Following that discussion, senior counsel for the appellant agreed that it would be preferable if the judge waited until giving his charge before directing the jury so as not to spotlight the issue. The view that it was better to give a direction immediately was put to the trial judge but that counsel agreed that it would be better for that course not to be followed in this case.
The trial judge’s refusal to discharge the jury following the remarks of senior counsel for the school is the subject of grounds 1 – 3 of the appeal. The relevant legal principles that govern the question whether a jury should be discharged were not in contest between the parties. These are helpfully set out in the reasons of Whelan JA.[7] There, his Honour refers to the decision in Rezav Summerhill Orchards Ltd[8] which states that, when faced with an application of this kind:
The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief. If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authoritative direction to the jury. If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.[9]
[7]See [197]-[200].
[8][2013] VSCA 17 (‘Reza’).
[9]Ibid [46].
I would raise two additional observations. First, as Osborn JA (with whom Santamaria JA and I agreed) held in Brotherhood of St Laurence v McCabe:
The system of trial by jury is not premised upon the proposition that a jury will hear nothing prejudicial to a party. Rather, it assumes that save in exceptional circumstances juries will be capable of deciding matters (both civil and criminal) in accordance with directions by the trial judge despite hearing matters prejudicial to a party in the course of the trial.[10]
[10][2013] VSCA 257 [66] (‘Brotherhood’).
In addition, as Whelan JA states in his reasons:
[W]here an application to discharge the jury has been refused by a trial judge, appellate courts ought to act with great caution, and ought to interfere only in cases where it is plainly demonstrated that the trial judge’s discretion miscarried and that to allow the decision to stand would be inimical to the interest of justice.[11]
[11]See [200].
The question for this Court is whether allowing the verdict to stand would be inimical to the interests of justice. In answering this question, all the circumstances of the proceeding are to be taken into account.[12] This will most often involve difficult questions of fact and degree and each case will turn on its own facts. When a jury has been exposed to comments that have the potential to unfairly prejudice the jury against a party, an assessment must be made as to whether, in the context of the proceeding as a whole, there is a real risk that the conduct complained of will distract the jury from the proper performance of their duties. The nature of the assessment required means that the trial judge is typically best placed to make it, and is the reason why appellate courts, which do not have the benefit of sharing the courtroom with the jury as the proceeding unfolds, must act with appropriate caution.
[12]In Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, Latham J held at 211, citing Croll, that ‘[a] Court of appeal may review the exercise of that discretion by the Judge if justice requires it, all the circumstances being taken into account.’
In my view, the following factors are of significance.
First, the trial judge, following discussion with counsel and after reviewing the transcript, turned his mind to the degree of prejudice which had been created by the conduct complained of, and then considered whether any direction to the jury about those matters would be capable of overcoming that prejudice. His Honour concluded that a false issue had been raised, but that it could be overcome. It is apparent that his Honour had been paying close attention to the jury during the 16 days of the trial and was confident of his ability to assess whether the comments of senior counsel for the school would distract them from the proper performance of their task, and if so, whether an appropriate direction could cure this.
Secondly, as the trial judge found, the thrust of the school’s closing was directed to establishing that Mr Dohrmann was an unreliable witness, and that the appellant was an unreliable historian. The foundation for these points had, as the trial judge noted, been established in cross-examination. It was in the context of emphasising this that the comments complained of were made. This was not a case where counsel sought to raise false issues to distract the attention of the jury from the true issues that they were to determine.[13] Rather, the comments were made as part of an attempt to focus the jury on issues that were highly relevant to what they were to determine.
[13]As occurred, for example, in Smout v Smout.
Thirdly, senior counsel for Scholastic Cleaning, who followed senior counsel for the school, commenced his address by also focusing on the inconsistencies in the appellant’s evidence. Like senior counsel for the school’s address, his address also sought to undermine the evidence of Mr Dohrmann though it made no reference to the conduct of the appellant’s legal team. The effect of this address was to draw focus away from the ‘false issue’ raised by senior counsel for the school and to emphasise to the jury that the issues of the appellant’s reliability as a historian and Mr Dohrmann’s credibility as an expert were critical.
Fourthly, unlike in many of the authorities to which this Court was referred, the comments complained of occurred on a single occasion. They comprised a few sentences in the course of an address that took almost two hours and 74 pages of transcript. The jury had not been told that the appellant’s legal team’s conduct was improper before those remarks were made and that conduct was not referred to again until his Honour’s gave his direction. The parties agreed to this course and took no exception as to the form of the direction.
Fifthly, in addition to any ameliorative effect that a direction from the trial judge offered, the appellant had an opportunity, if she wanted, to respond to the comments. Following discussion between counsel and the trial judge it was agreed that the appellant would make her address, knowing the substance of the direction the judge intended to give, but that any direction would not be given until after the address. The appellant chose not to respond to the false issue in her address, including in the knowledge of what his Honour would say in the charge.
Sixthly, and this point is especially significant, to set aside the verdicts would bring Scholastic Cleaning back into the litigation, despite its having been released from the proceeding by virtue of the verdict in its favour. This would greatly prejudice the first respondent in circumstances where it was not responsible for the prejudicial comments, nor the appellant’s conduct that gave rise to them. It was the appellant’s forensic decisions that caused the problem. Unlike cases such as Baulch, or Brotherhood, this is not simply a dispute between two opposing parties as to where the interests of justice lie. Here, there is another party who stands to be disadvantaged in a way that cannot be compensated by an ordinary order for costs.
In argument before us the response to these matters was to say the vice of what occurred in senior counsel for the school raising the matters as to the lawyer’s conduct was the creation of a serious, prejudicial imputation against the appellant’s agents. It was submitted the effect of the matters put to the jury was that the appellant was so unreliable her lawyers sought to suborn Mr Dohrmann to change his evidence and to deceive the jury. This difficulty was ’poisonous’ to the appellant’s case, it was submitted. Further, the comments of the school’s counsel to the jury were inflammatory and properly found in cross-examination (not addresses).
These submissions overlook the fact the appellant made forensic decisions in the course of the trial:
1. to contact Mr Dohrmann while the appellant was being cross-examined and have him alter language in his report;
2. to not comply with the Order 44 obligation;[14]
3. to not seek leave to amend the Order 44 report of Mr Dohrmann;
4. to leave matters such that the true course of events tumbled out during Mr Dohrmann’s cross-examination in a way that aroused suspicion given that the appellant’s history of events was under scrutiny;
5. to in fact call Mr Dohrmann as a witness;
6. to not re-examine Mr Dohrmann on the topic; and
7. to not seek to recall the appellant (her case not having closed at that point).
[14]Mr Dohrmann’s amended report was not served on the other parties. Rule 44.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules’) requires that if the expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report, that party shall forthwith serve the supplementary report on all other parties.
In assessing whether the trial judge’s refusal to discharge the jury would be inimical to the interests of justice, the conduct of the appellant in running her case must also be considered. There is no doubt that it was the series of forensic decisions made by the appellant’s legal team, described by counsel for the school on appeal as a ‘high risk strategy’, that prompted the remarks of senior counsel for the school. These forensic decisions involved, at least, a failure to comply with the Rules in relation to expert evidence,[15] and understandably provoked counsel for the respondents. The school’s counsel was in the unenviable position of having to protect his client’s position in the context of highly questionable and potentially inappropriate conduct by the appellant’s counsel.
[15]See r 43.03(3) of the Rules.
It is no answer to say that Mr Dohrmann was mixed-up, in other words, his evidence was peripheral or inconsequential. The fact remains Mr Dohrmann’s evidence and the way it was elicited gave rise to the very problem of which the appellant now complains. It was necessary for the respondents to take action. The respondents had no notice of what had occurred with Mr Dohrmann’s report. On one view, overruled questions put to Mr Dohrmann in chief as to the evidence actually given by the appellant was a ploy to overcome the problems with Mr Dohrmann’s report. Furthermore, the respondents’ counsel faced the difficulty that Mr Dohrmann has authored a third report which was backdated, produced after the appellant’s evidence and given in the same form as the first two reports, as if the appellant had instructed him.
It is relevant to consider the differences between the third report of Mr Dohrmann and his previous report:
1. the sequence of days was different, namely the event occurred on day one not day two;
2. the date of the incident was different;
3. vandalism was said to have occurred in the week before the accident;
4. the appellant was said to have reported the accident to ‘Russell’ but not ‘Mark’;
5. a reference to a note on the door was deleted from the report;
6. four paragraphs were completely deleted from the third report;[16] and
7. paragraph 4.24 of the third report conflicted with the earlier reports which Mr Dohrmann explained as a ‘typo’.
[16]Paragraphs 4.10, 4.11, 4.12, 4.13.
The third report of Mr Dohrmann, revealed in cross-examination whilst he was presenting an opinion supposedly on the instructions of the appellant was, however, on Mr Dohrmann’s evidence altered at the behest of the appellant’s counsel. Indeed Mr Dohrmann was instructed as to how to alter the report in a yellow note. Furthermore, Mr Dohrmann signed the third report as being true and correct. In addition, at certain points in the trial there was reference to all reports having been exchanged yet the appellant’s counsel was silent as to the existence or possible preparation of the third report. To continue, the appellant’s counsel knew when the appellant was being cross-examined by the respondents that it was done on the basis of the single report of 9 April 2005. Furthermore, the respondents received different versions of the 9 April report which differed in their use of the word ‘not’ in relation to whether the appellant had reported previous incidents of vandalism.
When all these matters were combined they had a cumulative impact. It is, therefore, unsurprising that senior counsel for the school took the course he did. On the face of things there was a strategy to cover up the circumstances of the drafting of the third report. There seems to have been a forensic decision to preserve consistency with the appellant’s evidence. It remains that at any time the third report could have been produced and given to the respondents and the jury. Instead a different path was chosen.
I agree with the trial judge that the involvement of the appellant’s legal team in the preparation of the third report is not an issue that is entirely extraneous to the jury’s task. In my view, the jury is entitled to consider the reasons for and circumstances surrounding the procurement of the third report, though they must restrict themselves to the evidence properly before them.[17]
[17]The allegation of improper involvement was never put to the appellant, rather, it was put to Mr Dohrmann, who gave evidence that his interaction with the appellant’s legal team that lead to preparing the third report was appropriate. There was no direct evidence before the jury to the contrary.
Notwithstanding these factors the ‘false issue’ raised by senior counsel for the school was a serious one. Whilst it is common for opposing counsel to attack the forensic choices made during the course of the trial, the false issue raised goes beyond this. The implication was that Mr Dohrmann was instructed to alter his report so as to change many of the ‘assumed facts’ which it was understood had been directly provided to him by the appellant in order to achieve an appearance of consistency with the evidence that the appellant gave at trial. There was not a sufficient basis for the specific comments complained of, namely the allegation that there was an attempt to deceive and mislead the jury. To so allege was inappropriate and unfair.
Whilst the potential for prejudice existed, I do not consider that in all the circumstances the potential for prejudice was realised. The trial judge was best placed to assess whether the jury had been distracted from their proper task and whether the possibility of a fair trial had been compromised. His Honour found that this had not occurred. This Court should be appropriately cautious in overturning a decision of a trial judge.
A further point arises of substantial significance. A determination by this Court that the jury should have been discharged in all likelihood would involve setting aside the verdict and remitting the matter for rehearing. Given a subsequent investigation into the appellant’s failure to comply with the Rules in relation to expert evidence it may be difficult to remit the matter to the same trial judge for rehearing. Therefore, any remitter may be before a new judge, which will entail significant delay and wasted costs. Whilst the provisions of the Civil Procedure Act 2010 (‘CPA’) are not expressly addressed to civil jury trials, there is no doubt the CPA demands that courts place a greater emphasis on ensuring the timely and efficient disposition of matters as part of ensuring the just determination of a civil proceeding.
The CPA obliges this Court to give effect to its overarching purpose, which is ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.’[18] Recently this Court discussed the effect of the CPA in Yara Australia Pty Ltd & Ors v Oswal.[19] The Court (Redlich and Priest JJA and Macaulay AJA) noted that the CPA had significantly changed the traditional obligations that practitioners and the Court had in relation to civil litigation, observing:
Sackville J, writing extra-judicially, referred to the misconception that specific legislative intervention is unnecessary, since the rules or the inherent powers of the court confer ample authority on the judges to manage litigation in a manner that minimises delays and ensures that costs are proportionate to the matters in dispute, concluding that such a view underestimates the significance of legislation. The Act creates obligations which extend beyond those in the Rules and confers upon the courts a panoply of powers not found in the Rules.
The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.[20]
[18]Section 7.
[19][2013] VSCA 337.
[20]Ibid [25]-[26] (citations omitted).
The application of the principles governing civil juries in cases such as Baulch and Rees v Bailey Aluminium[21] are now qualified by the overarching obligations imposed on parties and the Court under the CPA. These obligations must be factored into the weighing up of how and where the interests of justice lie, including in civil jury matters. Here, the steps taken and the forensic decisions made by the appellant through her counsel played a significant role in the present dispute. Whilst these things are not clear cut, in the overall assessment of the interests of justice, the forensic decisions of the appellant are a factor that must be considered. In my view it is a factor in this case that supports the trial judge’s decision not to discharge the jury and instead to charge as his Honour did.
[21](2008) 21 VR 478.
In the circumstances, I am not satisfied that it has been plainly demonstrated that the trial judge’s discretion miscarried and that to allow the decision to stand would be inimical to the interest of justice.[22] In my view, it was appropriate for the judge to direct the jury as his Honour did and for the trial to continue.
[22]See [15].
I would dismiss grounds 1 -3 of the appeal.
Ground 4 – Alleged communications with the jury
This ground may be disposed of shortly. The trial judge was in the best position to observe what was happening in the trial. The proximity of the judge to the Bar table and the jury box enabled his Honour to be in the paramount position. It is evident that his Honour was observing the jury closely. I would dismiss this ground.
Ground 5
The appellant admitted three key points:
1. There were relevant facts about which there was no dispute: that she had slipped; that the cleaning up method was inappropriate; that she was injured; that she was told to clean it up as best she could.
2. There was uncontroverted contemporaneous evidence in support of the appellant’s evidence: what the appellant noted herself; her consistent statements in the completion of workers compensation claim forms three weeks after the event; the statement of Ms Harris; and the appellant’s statement to the insurance investigator.
3. It was never put that the appellant or Ms Harris told lies or were mistaken.
On these bases, the appellant argued she should succeed on ground 5. However, despite the attractive simplicity of the appellant’s submissions the fact remains that central to the determination of the appellant’s claim was the assessment of the consistency of her recounting of events, especially against the school. The school’s key witness denied that the appellant had reported an earlier problem. Thus the account given by the appellant and the account of Mr Dohrmann based on assumed facts derived from the appellant were critical. The appellant spoke to Mr Dohrmann herself. He said she gave a straight forward account. It was the school’s case that Mr Dohrmann’s expert assessment was only as good as the instructions it was based upon.[23]
[23]See Elizabeth Mobilio v Vasilike Balliotis & Ors (1998) 3 VR 833, 836.
The credibility of the appellant as a historian is plainly central. For this reason she was cross-examined on her account.
Thus, on this basis, there were disputes between the parties. As the school put it in argument to us, the appellant went to the jury on a particular basis, central to which was her credit.
The appellant’s case was that she was a site supervisor who came across a unique situation. She rang her supervisor, Ms Harris, and was told ‘do the best you can’ and on that basis she said she proceeded. Yet her case turned on when the call
was made to Ms Harris. There was evidence contradicting the appellant that the call was made after her cleaning up attempt.[24] The appellant said in evidence that she called after the cleaning. Hence, the answer on the verdict as to negligence was open. Relevantly the jury requested to see the witnesses’ contemporaneous statements which is an indicator that they were interested in the point. On the evidence it was open to the jury to conclude that the call was made to Ms Harris after the event. On that basis alone I would reject the ground.
[24]See exhibit D1B, D156, D1E, 210, 249.
As for the appellant’s submission that key matters were not in dispute this is not supported in the way the case ran. With respect to the appellant’s injury, there was a dispute as to the extent of her injury, the impact or relevance of her earlier injuries and the procedures that had been adopted. With respect to the cause of the injuries and the circumstances surrounding them, there were significant issues between the parties as to what the appellant was actually doing at the time she sustained her injury such as whether she was mopping or hosing. This was raised directly with the appellant. There was also a deal of evidence as to the correct way to clean up the detergent, particularly that of Mr Schadel. This was compounded by inconsistencies in how the appellant actually conducted the cleaning activity.
Against these circumstances ground 5 is not made out.
I would dismiss the appeal.
TATE JA:
I have had the benefit of reading, in draft form, the reasons of the Chief Justice and of Whelan JA.
I agree, for the reasons given by Whelan JA, that the appeal should be allowed
on grounds 1 to 3. As his Honour observes, the final address made to the jury by senior counsel for the school included an allegation that Mrs Hudspeth’s legal team had attempted to persuade Mr Dohrmann to alter his record of the version of events Mrs Hudspeth had narrated to him at the school in February 2010, and to do so for the purpose of representing Mrs Hudspeth as a reliable witness who had consistently presented the same story, when she had not been consistent. The allegation was tantamount to a claim that Mrs Hudspeth’s legal team had attempted to influence the integrity of the evidence to be given by Mr Dohrmann as to what Mrs Hudspeth had said to him. This not only cast aspersions on the legal team, it created significant prejudice to Mrs Hudspeth because, as Whelan JA explains, it suggested that her legal team was prepared to engage in seriously wrongful conduct for the purpose of rescuing her otherwise damaged credibility. As the trial judge recognised, there was a risk that the jury might infer that Mrs Hudspeth was partly involved in, or responsible for, the attempt by her legal team to mislead the jury. The prejudice to Mrs Hudspeth was significant and, in my view, could not be overcome by a direction that the jury disregard the allegation that Mrs Hudspeth’s legal team had been deceptive or sought to mislead the court.
I agree with Whelan JA that there was a need for the direction to state squarely that senior counsel for the school was incorrect. The direction should have stated that the allegation was unjustified. The direction given by the trial judge did not do this. In my view, the verdicts that were arrived at, in favour of Scholastic Cleaning, and the school, are both vitiated by reason that they were arrived at by a jury who had been told, wrongly and unfairly, that Mrs Hudspeth’s legal team had attempted to deceive them about the account Mrs Hudspeth had given to Mr Dohrmann so as to make it appear that what she had said to him at the school was consistent with her evidence at trial and thus advance her case.
It is unnecessary to consider whether any direction would have been capable of overcoming the degree of prejudice Mrs Hudspeth suffered.
The trial judge was rightly conscious of the time and expense already incurred by the trial and did not wish to see that time and expense wasted, or Mrs Hudspeth’s claim not resolved expeditiously in the course of that trial. Nevertheless, I consider that the proper course is now for the appeal to be allowed on grounds 1 to 3 and the jury verdicts to be set aside. It is regrettable that there may be a need for a new trial. Alternatively, the matter might be remitted to the trial judge for him alone to determine the liability of Scholastic Cleaning and the school, on the evidence already adduced at trial. The parties should be given a full opportunity to make submissions on the disposition of the appeal.
I also agree that ground 4 is without substance.
Given that the claim of negligence brought by Mrs Hudspeth will need to be ventilated again, either before the trial judge alone, or perhaps before a new judge and jury, it is unnecessary and would be inadvisable for the merits of Ground 5 to be explored in detail by this Court.
WHELAN JA:
On the fifteenth day of the trial of this proceeding senior counsel for the second defendant began his final address to the jury. The plaintiff was claiming damages for personal injuries allegedly suffered in the course of her employment while working as a cleaner at a suburban school. At the commencement of the trial there had been three defendants, by final addresses there were only two. All parties in the trial were represented by senior counsel. They were not the senior counsel who appeared on this appeal.
In his final address to the jury senior counsel for the second defendant detailed what he said were inconsistencies between the evidence which the plaintiff had given in the trial and an account of the relevant circumstances which it was submitted the plaintiff had given to a particular expert, an engineer named Mark Dohrmann. There was nothing remarkable about an address in those terms in litigation of this kind.
What he said next was remarkable.
After referring to the inconsistencies which he maintained existed between the account given by the plaintiff and the ‘Assumed facts’ as set out by the expert, he said:
This was recognised during the course of the trial by the legal team acting for the plaintiff and led to Mr Dohrmann being instructed to alter his report and to change many of the assumed facts so that an appearance of consistency would be provided to you. If that had happened, then you would have been misled. The plaintiff’s legal team and Mr Dohrmann, however, didn’t get away with it. Their attempt at deception to you about the assumed facts was exposed.
A little later he said:
In this case the plaintiff’s legal team imposed on Mr Dohrmann to abandon his duty to the Court for the purpose of obtaining a forensic advantage for the plaintiff, namely, to present her as a reliable witness when indeed the opposite was true. Mr Dohrmann, acting in accordance with the rules of conduct, should have resisted that pressure and refused to alter his report because he would have honestly believed that he had set out her version of events as she narrated them to him out at the [school]. But no, you know, he prepared a third report meekly complying [with] the request of the plaintiff’s legal team.
These statements prompted an application on behalf of the plaintiff for the discharge of the jury. The trial judge ruled against that application observing that counsel ‘mostly had a solid foundation for his comments to the jury’. The judge went on to determine, however, that what counsel had said had raised a ‘false issue’ as to the conduct of the plaintiff’s legal team, and that he would give a direction to the jury that they should ignore that aspect of counsel’s address.
Nine days later the jury returned a verdict. It found that there was no negligence, no breach of statutory duty and no breach of occupier’s duty by either of the two defendants.
The plaintiff now appeals on five grounds. The first three grounds concern what senior counsel for the second defendant had said to the jury and the refusal of the application to discharge the jury. The fourth ground concerns a matter involving the second defendant’s instructing solicitor which arose during the judge’s charge. The final ground of appeal is that the jury’s verdict that there was no negligence on the part of the first defendant was ‘perverse or not open on the evidence’.
In order to deal with the three grounds concerning counsel’s address, and the ground concerning the finding of no negligence in relation to the first defendant, it is necessary to review certain aspects of the trial in some detail.
On the appeal we were told the trial judge had undertaken an enquiry as to the conduct of the relevant parties in the trial. We have not done that. This appeal was argued, and is to be decided, on the basis of what occurred during the trial as revealed by the transcript and the documents tendered or marked for identification.
Review of relevant aspects of the trial
The plaintiff, Ms Hudspeth, was aged 56 when the trial was opened. She was born and grew up in the United States of America. She married and had a family there, and worked there as a teacher’s aide. Whilst in the USA she suffered a serious back injury which resulted in her having surgery on her back in 1997 and in 1998. She came to Australia in about the year 2000.
In about August 2002 she began working as a cleaner for a company named Scholastic Cleaning and Consultancy Services Pty Ltd, the first defendant in the action and the first respondent on the appeal (‘Scholastic Cleaning’). Scholastic Cleaning had the contract to clean a school, named St John’s Regional College, owned by the Roman Catholic Trust Corporation for the Archdiocese of Melbourne, the second defendant and the second respondent to the appeal (‘the school’).
In November 2002 the plaintiff was appointed to the position of supervisor at the school. Thereafter, the cleaners at the school reported to her. She in turn reported to her supervisor, an employee of Scholastic Cleaning named Frances Harris.
The plaintiff’s claim against Scholastic Cleaning and the school concerned an injury which she allegedly suffered on 27 April 2005 whilst cleaning liquid soap which had been spread onto the floor of one of the male students’ toilet blocks. The liquid soap had come from one or more of a number of soap dispensers that were attached to the wall in that toilet block.
When the trial was opened, the supplier and installer of those soap dispensers was the third defendant. The claims against that defendant were resolved during the course of the trial and there was no verdict of the jury concerning those claims.
The plaintiff’s case
The plaintiff’s case, as it was opened to the jury, was that the plaintiff went into the boys’ toilet on 27 April 2005 to be confronted by ‘an enormous mess’ as a result of liquid soap from the dispensers being spread ‘everywhere’. According to the plaintiff’s counsel, she firstly reported this situation to the school, and in particular to the school’s assistant business manager, a person referred to as ‘Russell’. It was said that ‘Russell’ was shown what had happened but that his only response was to shrug his shoulders, and the plaintiff told him that she would do the best she could. The plaintiff’s counsel told the jury that she then rang her Scholastic Cleaning supervisor, Ms Harris. After the situation was described to Ms Harris, the jury was told that she had told the plaintiff:
Do the best you can, I will be down there later.
The jury was told that the plaintiff did then begin to ‘do the best she could’. She found a heavy mop and she attempted to clean up the floor using that mop.
The plaintiff’s case was that this was an entirely unsatisfactory method of cleaning the floor, that it was dangerous as it would inevitably create a situation where the plaintiff was working on a slippery surface, that that is what happened, that she slipped when stepping onto the urinal step to rinse the mop under a tap, and that she suffered injury to her back as a result. In describing the case put against Scholastic Cleaning, repeated emphasis was put on what was said to be Ms Harris’ instruction to ‘do the best you can’.
The case put against the school, as opened to the jury, was that the school had a duty to prevent acts of vandalism, that upon being shown the mess ‘Russell’ as the representative of the school ought to have made an assessment as to how it should be dealt with, that cakes of soap rather than liquid soap could have been used so as to prevent this situation arising, and that the soap dispensers should have been secured in such a way as the students would not have been able to remove their contents and spill them on the floor.
The plaintiff in her evidence described what she said had happened on 27 April 2005 in terms consistent with the way in which the case had been opened. She referred to previous vandalism at the school, particularly citing an incident where a door had been removed, and then described what occurred on Wednesday 27 April 2005. She said she found the mess and reported it to ‘Russell’ from the school. She said she also contacted her Scholastic Cleaning supervisor, Ms Harris, and was told to do the best she could. Amongst other things, in her evidence the plaintiff said that a similar soap incident also happened on the following day, Thursday 28 April 2005. On that occasion she did not attempt to clean the soap but rather locked up and put an ‘out of order’ sign on the entrance. She said that the next day, the Friday, she found the toilets open and the out of order sign gone. This second soap spill was, she said, cleaned up by using a water hose to spray the liquid soap down a drain.
The plaintiff’s evidence was that she suffered the injury on Wednesday 27 April 2005, the first occasion upon which she had found liquid soap on the floor. The description which the plaintiff gave of how she suffered the injury was as follows:
As I said, there was a huge puddle of this stuff and I was just trying to get some of it up and pick it up. The floor was really wet and the soap was all over it because it was draining out of the mop as I was putting it into the urinal, turned the tap on and it just kept lathering and I went to step up on the urinal step itself and when I did that, it just happened so fast. I just kind of tried to plant the mop, tried to brace myself and I kind of – I can’t tell you exactly. I went backwards and I twisted. Part of me was still facing – the bottom half of me I think was facing this way and I twisted back this way to keep from hitting the floor.
A little later the plaintiff said:
I felt a sharp pain kind of running beside my back along my hip. I just thought I had pulled a muscle, the way I twisted.
The plaintiff said she made an entry in relation to what happened with the mess on the toilet block floor in a book referred to as the ‘Red Book’. There was uncertainty in her evidence as to whether she had made the entry on the 27th of April or the 28th of April. The plaintiff also said that she reported the fact she had hurt herself to Ms Harris when Ms Harris attended the school later on the evening of Wednesday 27 April.
When cross-examined by counsel for Scholastic Cleaning a good deal of attention was paid to the suggestion that prior to commencing the cleaning she had contacted Ms Harris. In that connection passages from a statement which the plaintiff had made dated 7 June 2005 were put to her. In substance, the plaintiff’s evidence that she had rung Ms Harris and been told to do the best she could before she commenced the cleaning was challenged. Further, it was put to the plaintiff that the ‘do the best you can’ was her recollection of a general directive and not something specific to this incident. It was put to the plaintiff that the 7 June 2005 statement read as if she had not called Frances Harris until after she had cleaned the floor and after she had, as she then thought, pulled a muscle in her back. The plaintiff agreed that that is the way the statement which she had made on 7 June 2005 read, but she said that ‘I believe I called her’. I interpret that as meaning that she believed she had also called her earlier.
The plaintiff was also asked about the entry which she had made in the Red Book. Part of that entry, which was read to her, reads as follows:
… ask Pamela to make an out of order sign and I will hose it down again tomorrow.
It was put to her that her main function in cleaning the mess had been hosing it down. She denied that. The hosing reference was potentially significant. As the evidence progressed it became clear that it was accepted by all parties that that was the correct way to deal with the situation.
I interpolate at this point that, with one possible exception, the sequence of events set out in the statement of 7 June 2005, and in particular specification of the day on which the accident occurred, was consistent with the plaintiff’s evidence-in-chief. The possible exception is the timing of the phone call to Ms Harris.
When cross-examined by counsel for the school the first thing the plaintiff was asked was whether she had always given a consistent account of what had happened in relation to the relevant toilet block on the Wednesday, the Thursday and the Friday, and she said that she had. She then agreed with the suggestion put to her that the occasion on which she said she suffered injury was the first time that she had encountered liquid soap on the floor in this manner and that it was a ‘unique’ event.
The plaintiff was then taken in detail to an account of the circumstances which occurred over those three days as set out in a report by the engineer, Mr Dohrmann, who had been engaged by the plaintiff’s solicitors and who had interviewed the plaintiff at the location of the incident in February 2010.
It quickly became clear that there were significant differences between the account of events over those three days as set out by Mr Dohrmann in the report by him which had been served on the school under Order 44, and the account given by the plaintiff in her evidence. The most obvious inconsistency was that according to the Dohrmann report, soap was discovered on the floor on what might be termed ‘day one’; and the attempt to clean it, in the course of which the injury occurred, took place on the following day.
The plaintiff agreed in cross-examination that she had seen Mr Dohrmann at the school in February 2010 and had given him an account of what had occurred. She maintained that the account being put to her as emanating from him was wrong. The sequence of events was wrong, and the employee of the school to whom the matter was said to have been initially reported was also wrong. Mr Dohrmann recorded it as being to an employee named ‘Mark’ rather than ‘Russell’.
The plaintiff was also cross-examined about the entry in the Red Book and in particular about the absence of any reference in the Red Book entry to having suffered any injury or to having slipped at all.
In the course of cross-examination by counsel on behalf of the school the plaintiff was challenged as to whether she did slip at all, and in that context was asked to describe exactly what had happened. On one view, she had difficulty doing so and eventually concluded:
I felt like I slipped. In my mind today, I felt like I slipped.
The plaintiff gave her evidence-in-chief on Wednesday 14 November 2012 and was cross-examined on that day and on the following day, Thursday 15 November 2012. On Friday 16 November 2012 there was an issue with one of the jurors and the trial could not proceed. The plaintiff’s re-examination was on Monday 19 November 2012. Amongst other things, the plaintiff reiterated in her re-examination that Ms Harris had told her to do the best she could. She said that on the second occasion when cleaning of soap spillage occurred (according to the plaintiff, on the Friday) a water hose had been used.
Dealings with Mr Dohrmann 15 November 2012
It is necessary to interrupt the trial sequence at this point to set out the evidence that was later given about events which occurred on Thursday 15 November 2012. This later evidence about what happened on 15 November, while the plaintiff was still giving evidence, was given by Mr Dohrmann during his cross-examination by counsel for the school.
Substantially adopting the relevant aspects of counsel for the plaintiff’s submissions on this appeal, what occurred was:
· Mr Dohrmann spoke with senior counsel for the plaintiff on 15 November 2012 or earlier and was told that Mr Dohrmann had the facts wrong.
· Mr Dohrmann received by fax the plaintiff’s statement dated 7 June 2005. The fax was sent to him by senior counsel for the plaintiff at approximately 2 pm on 15 November 2012.
· Mr Dohrmann was instructed by senior counsel for the plaintiff that he should take the fax as the plaintiff’s instructions.
· Senior counsel for the plaintiff asked Mr Dohrmann for an amended report based on the information in the statement.
· Mr Dohrmann prepared an amended report based on the statement.
· Senior counsel for the plaintiff made suggestions as to the factual changes and deletions which would need to be made in a telephone conversation with a member of Mr Dohrmann’s staff and these suggested changes and deletions were recorded on a ‘yellow slip’ which was placed on Mr Dohrmann’s file.
· Mr Dohrmann wrote a further report, which was dated 12 November 2012, which was based on the altered factual assumptions.
· Mr Dohrmann signed the new report and sent it to senior counsel for the plaintiff.[25]
[25]The circumstances set out reproduce the factual components of the appellant’s written submission as to what was established in the relevant cross-examination, as set out in paragraph 8 of the appellant’s submissions dated 11 June 2013, save that references to opinions held at the time and things not done have been deleted. On the hearing of the appeal counsel for the school submitted that the matter should be dealt with on the basis that the revised report had only been sent to senior counsel for the plaintiff, and not to the plaintiff’s solicitors as well, and the circumstances set out reflect that.
Medical evidence
On Monday 19 November 2012, the plaintiff’s evidence concluded, and the plaintiff’s counsel began to call the medical evidence. Doctors gave evidence over the course of Monday 19 November and Tuesday 20 November 2012, and there was further medical evidence called later in the trial.
On Wednesday 21 November 2012 argument took place in the absence of the jury concerning Mr Dohrmann. Before continuing with the sequence of the trial it is necessary to turn now to the reports of Mr Dohrmann as they existed on Wednesday 21 November 2012.
Reports of Mr Dohrmann as at Wednesday 21 November 2012
From the material before us, as at Wednesday 21 November 2012 the following reports of Mr Dohrmann were in existence:
· A report dated 9 April 2010, later marked for identification as ‘Exhibit D1H’, which had been served on Scholastic Cleaning under Order 44.
· A second version of the report dated 9 April 2010, which had been served on the school under Order 44.
· A revised report dated 12 November 2012 prepared consequent upon the dealings with senior counsel for the plaintiff on 15 November 2012 and which had been sent to senior counsel for the plaintiff. A copy of that report was in Mr Dohrmann’s file. That file was later marked for identification as ‘Exhibit D1I’.
· A supplementary statement dated 19 November 2012, which had been served on the defendants on the afternoon of Tuesday 20 November 2012. This statement was the subject of submissions before the judge on Wednesday 21 November 2012.[26]
[26]Senior counsel for Scholastic Cleaning told the judge he had been served with a ‘supplementary statement’ or ‘supplementary report’ dated 19 November 2012 at the conclusion of the court day on Tuesday 20 November.
Both versions of the report dated 9 April 2010 contained the following under the heading ‘Documents and material’:
3.1 I have read the following documents:
· your letter of instructions, dated 11 February 2010;
· Court documents, including the Amended Statement of Claim, with attached Affidavit of Linda Hudspeth (sworn 11 December 2008);
· Medical reports prepared on behalf of the Plaintiff and Defendant, as itemised in your letter to me of 11 February 2010;
· Scholastic Cleaning & Consultancy Services Pty Ltd ‘Cleaners’ Induction and Training Guide’ (42 pages – Revision: 0).
3.2I interviewed Ms Hudspeth at Dandenong on 15 February 2010. She gave a straightforward account of the relevant circumstances.
Both versions of the 9 April 2010 report then set out a number of factual matters under the heading ‘Assumed facts’. Both versions make a mistake in relation to dates. 27 April 2005 is referred to as being a Thursday whereas in fact it was a Wednesday.
Of greater significance is the sequence of events which is set out under the heading ‘Assumed facts’. According to that sequence, the day before the day upon which the injury was suffered Ms Hudspeth had found liquid soap on the floor. Paragraph 4.8 of both versions of the report contains the following passage:
She observed that one of several soap dispensers had apparently been torn off the wall above the wash basin, and that its contents (liquid soap) had been spilt on the tiled floor. Her instructions to me at the view were that the missing soap dispenser was the one located first at the northern end, or on the left as one faces the trough.
The sequence of events set out under the heading ‘Assumed facts’ then went on to relate that in response to this discovery she locked up the toilet, reported the matter to ‘the school business manager, named Mark’, placed a note on the door, ‘reported this matter to the assistant business manager (named Russell)’ and recorded the observation in the ‘Red Book’.
The account given as ‘Assumed facts’ then moved to the following day, incorrectly described as Thursday 27 April 2005, when Ms Hudspeth is said to have returned to the same toilet block to find the door open, the note missing, ‘and the spilt liquid soap still all over the floor’. It is said that she also observed that ‘a second soap container had now disappeared from the wall’ … ‘and that there was more liquid soap spilt about the tiled floor than had been on the day before’.
The account thus far set out is inconsistent with the plaintiff’s evidence. The plaintiff had been cross-examined on these aspects of Mr Dohrmann’s report, an implicit assumption being made that Mr Dohrmann was repeating things she had told him. On the appeal senior counsel for the plaintiff queried that implicit assumption. I have reviewed the documents to which Mr Dohrmann referred in his report. It was certainly open to proceed on the basis that the source was Ms Hudspeth, and that she had either given Mr Dohrmann a different account when she met him in February 2010, or Mr Dohrmann had misunderstood the account of the circumstances which she gave him.
The account of the incident itself, and of the call to Ms Harris said to have been made before the incident, as set out as ‘Assumed facts’, was broadly consistent with the plaintiff’s evidence until the last paragraph of the ‘Assumed facts’. It is in relation to this last paragraph that the two versions of the report dated 9 April 2010 differ.
The report which was served on Scholastic Cleaning read in the last paragraph:
4.24Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed.
The report served on the school read in the last paragraph:
4.24 Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.
The potential significance of that divergence is obvious.
The report dated 12 November 2012, but which must have been drafted on or very shortly after 15 November 2012, significantly alters the account of events set out under the heading ‘Assumed facts’ so as to bring the sequence into conformity with the evidence the plaintiff had given in the trial. What was said to have been the discovery of the liquid soap the day before the accident occurred was removed, as were other inconsistencies, such as the mess being reported to ‘Mark’ rather than to ‘Russell’. The final sub-paragraph of the Assumed facts in this report reproduced the version of the 9 April 2010 report which had been served on the school. It read:
4.24Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.
That paragraph was not consistent with the evidence the plaintiff had given in the trial. She had said the soap incident was ‘unique’. Mr Dohrmann subsequently gave evidence that the version of the 9 April 2010 with that paragraph (referred to as ‘the one without the not’) was in fact a draft and that the correct final version was the one which had been served on Scholastic Cleaning, which said in paragraph 4.24 that Ms Hudspeth had not seen previous evidence of vandalism on the soap dispensers. It seems that in preparing the amended report dated 12 November 2012 but drafted on or about 15 November 2012, Mr Dohrmann amended the version which he later maintained was the incorrect one.
Significantly, the report dated 12 November 2012 did not alter what appeared under the heading ‘Documents and material’. No reference was made to the dealings with senior counsel for the plaintiff or to the statement of 7 June 2005. Thus, if the report were read in isolation it was open to be interpreted, in relevant respects, as an account of what Mr Dohrmann had been told by the plaintiff in February 2010. In that respect the report, on its face, was misleading.
Submissions concerning Mr Dohrmann on Wednesday 21 November 2012
On Wednesday 21 November 2012 counsel on behalf of Scholastic Cleaning objected to reliance upon what was described as a ‘supplementary statement’ of Mr Dohrmann dated 19 November 2012. It seems from the transcript that that statement was confined to addressing certain issues under relevant regulations. The objection related to the late service of the statement and to what was said to be an inconsistency between reliance upon that statement and a ruling which the judge had previously made in relation to another expert, Dr Cubitt.
In the discussion that followed, counsel for the defendants quickly diverged into complaints in relation to Mr Dohrmann’s 9 April 2010 report (it not being appreciated at that point that there were two versions of it), referred to as the ‘primary report’. The defendants submitted that the factual assumptions set out in Mr Dohrmann’s primary report would never be established because of inconsistency with the evidence that had been given by the plaintiff. In particular, it was pointed out that the sequence of events was different. Counsel for the school also specifically referred to paragraph 4.24 in the version of the report that he held which said that Ms Hudspeth had previously seen evidence of vandalism to the soap dispensers. Notwithstanding that specific reference, no-one refers to the fact that there were two versions of paragraph 4.24.
Counsel for the plaintiff defended reliance upon Mr Dohrmann’s April 2010 report (speaking as if there was only one version – and there is nothing which suggests he knew there were two versions at that point). In relation to the specific point which had been raised about paragraph 4.24, counsel for the plaintiff relied upon evidence of vandalism not concerning soap dispensers as constituting a legitimate basis for Mr Dohrmann’s opinions notwithstanding the plaintiff’s evidence.
The judge ruled that he would not permit the plaintiff to rely on what he called the supplementary report of 19 November 2012, but that he would permit limited oral evidence on the matters dealt with in it.
The noteworthy feature of what occurred that morning is not so much the submissions made and the ruling given, but the fact that senior counsel for the plaintiff engaged in that interchange at a time when it must be assumed, on the material before us, that he held the report from Mr Dohrmann dated 12 November 2012. He did not reveal the existence of that report.
At this point it is necessary to say something about the parties’ obligations in relation to expert reports under the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). Expert reports are required to state ‘the facts, matters and assumptions on which the opinion is based’.[27] If an expert provides a supplementary report to a party then that party is required ‘forthwith’ to serve the supplementary report on the other parties.[28] If the supplementary report is not served then neither the earlier report nor the supplementary report can be used without the leave of the Court.[29] A party is not permitted to adduce evidence from an expert at the trial, other than in cross-examination, unless the substance of the evidence is contained within a report served under Order 44, save with the leave of the Court or consent of the parties affected.[30]
[27]R 44.03(2)(d).
[28]R 44.03(3)(a).
[29]R 44.03(3)(b).
[30]R 44.05.
As at 21 November 2012, when submissions about the supplementary statement or report of Mr Dohrmann dated 19 November 2012 were made:
· A report dated 12 November 2012 was held by senior counsel for the plaintiff which did not comply with Order 44 because it did not set out the facts, matters and assumptions on which the opinion was based. On its face, it gave the misleading impression that the opinion was based upon specified written documents and an interview with the plaintiff in February 2010. In fact, the facts were based upon the statement of 7 June 2005 faxed to Mr Dohrmann by the plaintiff’s senior counsel on 15 November 2012 and instructions by him to one of Mr Dohrmann’s staff which were recorded on the ‘yellow slip’.
· In contravention of the Rules, the supplementary report had not been served on the defendants.
· As the supplementary report had not been served, earlier reports should not have been used without the leave of the Court.
· The plaintiff’s counsel could not lead evidence from the expert that was not in substance contained within the reports which had been served on the other parties without the consent of those parties or the leave of the Court.
Evidence of Dr Cubitt
Immediately after the submissions and the ruling concerning Mr Dohrmann on 21 November 2012, evidence was given by an engineer who specialised in fluid dynamics, named Dr Leonard Cubitt. His evidence was largely uncontroversial. He was not cross-examined by counsel on behalf of Scholastic Cleaning. Cross-examination by counsel on behalf of the school was limited. The one point which counsel on behalf of the school was concerned to emphasise was a passage in Dr Cubitt’s report which read as follows:
Ms Hudspeth noted that soap had on previous occasions been spilled on the floor.
Dr Cubitt had referred to Ms Hudspeth’s instruction to that effect in his evidence-in-chief and counsel for the school took him to it again in cross-examination. Dr Cubitt confirmed that that is what she had told him, and when told that in her evidence she had said that she had never encountered soap upon the floor before and that it had been a ‘unique’ experience for her, he agreed with the suggestion put to him that that was inconsistent with what he had been told.
Evidence of Mr Dohrmann
Mr Dohrmann began his evidence-in-chief at midday on Wednesday 21 November 2012. After a few preliminary matters, Mr Dohrmann was taken to his ‘report dated April 2010’. The history which he had set out under the heading ‘Assumed facts’ was read to him, and he adopted it, up to a point. The point at which counsel ceased reading the history to him and asking him to adopt it, was the point (paragraph 4.8) where the history he had set out diverged from the account which had been given by the plaintiff in her evidence. Rather than proceeding with the report, the plaintiff’s counsel then said the following:
Can I ask you to assume the following evidence that we have heard in this case about the circumstances of her slip …
Counsel for the plaintiff then read out a long section from the plaintiff’s evidence-in-chief and concluded:
Having regard to that sequence of events I’ve put to you on the evidence, what do you say as to the satisfactoriness, first of all, of Scholastic, who employ her, in relation to the position she was put in.
At that point counsel for Scholastic Cleaning objected on the basis that what was being done was outside Order 44. Reference was made to ‘ambush’.
Counsel for the school also objected, again on the basis that there was a departure from the report which had been served under Order 44.
The trial judge agreed with the objections which had been made and suggested to counsel for the plaintiff that the witness should continue with the ‘Assumed facts’ as they had been set out in his April 2010 report and that counsel could then ‘explore his conclusions’.
Mr Dohrmann then read out the ‘Assumed facts’. When he reached paragraph 4.24 the version which he read out was the one which said that Ms Hudspeth had not previously seen evidence of vandalism or missing soap dispensers. That seemed to take counsel for the plaintiff by surprise and he queried the presence of the word ‘not’. Mr Dohrmann confirmed from his hand-written notes that what he was told was that there had been no prior observations of loose or torn soap dispensers.
Later in his evidence-in-chief there was an attempt to lead evidence from Mr Dohrmann about the type of soap dispenser that was used and other types which were available. Again, counsel for the defendants objected on the basis that this constituted a departure from the Order 44 statement. The initial objection was taken by counsel for the third defendant (who was still in the trial at that point).
In response to the objection, the trial judge turned to senior counsel for the plaintiff and said the following:
Isn’t that so, [counsel]? The expert evidence has been exchanged between the parties, you all know what was coming and that’s what this witness should give evidence about, rather than something that he’s obtained, something fresh, new, out of a box, off the bar table today.
The plaintiff’s counsel then responded to the objection and to the observations of the trial judge and there was an interchange between all counsel and the trial judge for about 15 minutes.
The particular objection did not concern anything which had been dealt with in the as yet unrevealed report dated 12 November 2012, but the question from the judge specifically directed to the exchange of expert reports, and the subsequent interchange, ought to have prompted some reference to its existence, if its disclosure had previously been overlooked. Just as the debate about the report dated 19 November 2012 should have prompted some reference to the report dated 12 November 2012, if its disclosure had previously been overlooked.
The trial judge did not permit Mr Dohrmann to give evidence outside the scope of the April 2010 report concerning the types of soap dispensers. At that point the luncheon adjournment intervened and immediately after lunch a medical witness was interposed. Late in the afternoon of Wednesday 21 November 2012 Mr Dohrmann resumed his evidence.
Senior counsel for the plaintiff again attempted to have Mr Dohrmann address the evidence the plaintiff had given and again objection was taken. Senior counsel for the plaintiff did not persist. Senior counsel for the plaintiff did not take up the judge’s earlier suggestion that he explore Mr Dohrmann’s conclusions.
Mr Dohrmann’s cross-examination by counsel for Scholastic Cleaning began late that afternoon. Before the adjournment the fact that two different versions of the report dated 9 April 2010 had been served became clear for the first time in open court. At one point the difference was said by Mr Dohrmann to be a ‘typographical error’. When asked which version was the correct one, Mr Dohrmann initially said that it was the version without the word ‘not’. This version said that the plaintiff had told him there had been prior incidents of vandalism to the soap dispensers. By reference to his hand-written notes, however, Mr Dohrmann then said that the correct position was that he was told by her that she had not seen torn or loose soap dispensers previously but there had been vandalism in general.
It was in the course of this interchange that the existence of the report dated 12 November 2012 was revealed. Mr Dohrmann said that this report was ‘written for my own purposes just to get the facts as right as I was directed to’.
The focus of cross-examination by counsel for Scholastic Cleaning throughout the rest of that afternoon was on the two versions of the April report and in particular the two versions of clause 4.24. Mr Dohrmann said that the one he ‘signed off on’ was the one which did contain ‘not’; that is, the one that recorded Ms Hudspeth as saying she had not previously seen any evidence of vandalism or missing soap dispensers.
Mr Dohrmann was also asked about the sequence of events he had set out in his April 2010 report. He said that he had had a lot of trouble ‘putting the order of events in’ and that if there is an error ‘it will be mine, not hers’.
The last thing that happened that afternoon was that Mr Dohrmann’s entire file was marked for identification as ‘Exhibit D1I’. Mr Dohrmann’s report dated 12 November 2012 was in that file, as were copies of both versions of the April 2010 report. The first reference made in Court to the report dated 12 November 2012 was late in the afternoon of 21 November 2012, and it seems, on the material before us, that the first opportunity the defendants would have had to see that report was when Mr Dohrmann’s file was produced and marked for identification.
Mr Dohrmann’s cross-examination by counsel on behalf of Scholastic Cleaning continued the following morning. When questioned about the history he had set out in his April reports he said that he had had ‘some difficulty in putting the chronology together when I was interviewing her, I did my best with it’.
He was told that the version of the April 2010 report which had been served on Scholastic Cleaning was the one which did have ‘not’ in it in paragraph 4.24 and he said that that was the one ‘which stands’. He said the version without ‘not’ in it was ‘in great likelihood’ a draft before the final one which has been sent out incorrectly. He said that that was his responsibility.
He was then challenged on one of his conclusions. He had suggested in the April 2010 report which had been served on Scholastic Cleaning that both Scholastic Cleaning and the school could have taken steps to prevent exposing the plaintiff to the risk of injury ‘by ensuring soap dispensers are fastened to the wall, that they were secured in a way that would resist attempts to tear them off the wall by vandals’. It was put to him that this was a rather extraordinary conclusion if in fact his instructions from Ms Hudspeth were that she had not seen previous evidence of vandalism to the soap dispensers. It was a point that was also taken up by the trial judge.
Counsel for Scholastic Cleaning also highlighted an observation Mr Dohrmann had made to the effect that injury could have been prevented had the plaintiff not been required to enter a slippery area ‘until it was hosed out’. He was then taken to notes which he had made and which were contained in his file. There was a note which read ‘Hosed out’ and which, it was suggested, referred to what was described as ‘day one’. By reference to that note, the following interchange occurred:
So your first observation about how she went about the task is that she tried to hose it out, is that it? - - - Yes. That’s the note.
That was on day one? - - - Yes.
The cross-examination of Mr Dohrmann by senior counsel for the school began by him referring the witness to the expert witness code of conduct[31] and in particular to the clauses providing that the expert witness had an overriding duty to assist the Court impartially and not to act as an advocate.[32] He was then cross-examined about the divergent versions of clause 4.24 in the April 2010 reports. He agreed that the difference was ‘pretty important’. He again confirmed that the version ’with the “not” in it’ was the correct one. He was cross-examined about how the divergence had come about.
[31]Order 44 and Form 44A of the Supreme Court (General Civil Procedure) Rules 2005.
[32]Clauses 1 and 2.
By reference to his file, Mr Dohrmann was then asked to read out the notes he had taken of his discussions with the plaintiff.
I interpolate at this point that upon my reading of that evidence his notes do indicate that an account was given to him by the plaintiff to the effect that there was an initial problem on one day (said in the notes to be the Wednesday), and then a further problem the next day (said in the notes to be the Thursday) which was when the injury was suffered. Further, the note in relation to what had occurred on the first day referred to both mopping and hosing. Suffice it to say, that there was certainly a basis in this evidence for a conclusion that the plaintiff had given him a different account in important respects from the account she had given in her evidence.
Mr Dohrmann was told that counsel for the school had cross-examined the plaintiff about his report on 15 November 2012. He agreed that he had had communication with the plaintiff’s legal representatives in the afternoon of 15 November. He referred to a fax which appeared to have been sent to him at 2 pm that day and he added that senior counsel for the plaintiff ‘had previously had a conversation with me’. He said that counsel had asked him whether he had received a statement from the plaintiff and told him that he was going to send it to him. Mr Dohrmann said that he considered what was occurring to be similar to the role that solicitors normally undertook where they checked that the facts were correct. Mr Dohrmann said that the plaintiff’s senior counsel made ‘a request that I reconsider those as the plaintiff’s instruction about what happened and the order of events’. The reference to ‘those’ was a reference to the faxed statement. He said that the plaintiff’s senior counsel had ‘suggested that I might prepare an amended report which I did’.
He was then taken to the ‘yellow piece of paper’ in his file (which was not in his hand-writing). It referred to paragraph numbers in the report and catalogued changes to those paragraphs. The amended report reflected the changes on the yellow paper. At the end of the yellow paper there was a reference to senior counsel for the plaintiff and his phone number.
Mr Dohrmann also confirmed that the amended report included the erroneous version of paragraph 4.24 ‘unfortunately’.
Mr Dohrmann said that he sent the third report to the plaintiff’s solicitors and that he copied it to senior counsel for the plaintiff at the same time. On the appeal we were told by counsel for the school that for the purposes of the appeal it was accepted that the report only went to senior counsel not to the solicitors.
Mr Dohrmann described what occurred as a process whereby he was alerted to ‘factual errors in the account that I had set out’. He agreed that he had accepted without reservation that the errors had been his.
At this point a sheet of paper upon which the two versions of clause 4.24 from the April 2010 reports were set out was tendered as ‘Exhibit D1J’ by counsel for the first defendant.
After a break, the cross-examination of Mr Dohrmann by senior counsel on behalf of the school resumed. Mr Dohrmann was asked about the orders which had been made for witnesses out of court and was asked whether he had turned his mind to the question of whether he should be speaking to the plaintiff’s counsel at all. Mr Dohrmann said that he relied on senior counsel for the plaintiff, that they did not discuss the evidence, and that counsel had told him that he could not speak about the evidence.
Mr Dohrmann was then cross-examined in relation to what he had said about soap dispensers and the risk of vandalism. As there is no ground of appeal concerning the jury verdict in favour of the school I will not set out the detail of that interchange, save to observe that the conclusion was open, in my view, that some of the propositions advanced by Mr Dohrmann were unreasonable.
Nonetheless, a false issue might be placed in the minds of the jury that they may not just use the evidence about the interaction between Mr Dohrmann and the plaintiff’s legal team since the trial commenced to evaluate the evidence of Mr Dohrmann, and having done that, draw inferences about the plaintiff as an historian, but can go further and draw adverse conclusions about the plaintiff’s legal team itself, that they or some of them have been deceptive or sought to mislead the court, or even that the plaintiff Mrs Hudspeth may be part of, or responsible for, that conduct. Permitting a submission that raises the prospect of that false issue raises a prospect there may be unfairness to Mrs Hudspeth in the conduct of the trial.
His Honour then referred to the length of the trial (16 days at that point), to its complexity, and to the expense that had been incurred. He said that he was satisfied that an appropriate direction could be given about what his Honour described as the ‘false issue’, and that that is what he would do.
His Honour then described the direction that he proposed to give.
Consequent upon the ruling, senior counsel for the plaintiff reiterated his submission that the position could not be cured by a direction and submitted that the proposed direction would not help the situation at all. His Honour said that he had ruled on those submissions and that he proposed to give a direction in the terms he had described.
In due course his Honour did give a direction. The direction was not given until shortly before lunch on Monday 10 December 2012.
In his charge to the jury, his Honour referred to the submissions that had been made by senior counsel for the school about Mr Dohrmann and to the criticisms which had been made of Mr Dohrmann’s conduct. His Honour then continued:
[Counsel] submitted that the plaintiff had given various versions of events and there was a general inconsistency in her reports, and this was his next area, the plaintiff’s version of events. He started with Mr Dohrmann who he said was an unimpressive and unsatisfactory witness. He read you some transcript about day one, contrasting Mrs Hudspeth’s evidence with Mr Dohrmann’s assumed facts.
Mrs Hudspeth believed that she did give Mr Dohrmann an accurate account of events and that Mr Dohrmann was wrong about the version of events. [Counsel] then read Mr Dohrmann’s transcript of day two. Mrs Hudspeth said that his entire version was wrong. [Counsel] said there was no explanation for these inconsistencies and Mr Dohrmann has made many serious mistakes.
[Counsel] invited you to consider the role of an expert to express opinions on assumed facts and he suggested that the plaintiff’s legal team and Mr Dohrmann produced a third report that was consistent with the plaintiff’s version in her evidence. [Counsel] described this as an attempt at deception that was exposed. Applying the rules for conduct for experts, Mr Dohrmann should have refused to alter the report and he should have stuck to his version of the reports and not complied with the requests of the plaintiff’s legal team. So [counsel] says that Mrs Hudspeth has been shown to be an unreliable historian but Mr Dohrmann was an unimpressive and unsatisfactory witness.
I want to clarify how you should use [counsel’s] remarks on this topic. What I have just stated to you is the proper sense in which to consider what [counsel] submitted in his closing remarks about concluding the plaintiff’s legal team attempted to deceive you in the circumstances surrounding the third version of Mr Dohrmann’s report.
At one point he put it the other way around and was critical of the plaintiff’s legal team suggesting they attempted to mislead the court and imposed on Mr Dohrmann to abandon his duty to the court, to obtain the forensic advantage to present her as a reliable witness. As I’ve just said, [counsel] invited you to consider two issues about the circumstances surrounding the third version of Mr Dohrmann’s report. Each of those issues are properly matters for your consideration: the character and conduct of Mr Dohrmann, whether he was deceptive or dishonest or not acting in accordance with his duty to the court are issues that you may consider.
There is evidence that you may consider shows some of Mrs Hudspeth’s legal team played a role in the relevant events but it is the conduct of Mr Dohrmann that you must examine and you should not be distracted into an enquiry about the conduct of any lawyers. To the extent that [counsel] submitted otherwise, and he did, I direct you to disregard that submission. By all means, reflect on whether Mr Dohrmann abandoned his duty to the court to obtain a forensic advantage of presenting the plaintiff as a reliable witness, but it would be unfair and quite inappropriate to use against Mrs Hudspeth in your deliberations any view that you may have formed about the conduct of Mr Dohrmann and her legal advisors in relation to the third report.
I direct you to disregard, to put from your minds any view that you might have formed from [senior counsel for the school’s] address that her legal advisors rather than Mr Dohrmann have been deceptive or sought to mislead the court and more importantly, that Mrs Hudspeth may be part of or responsible for that conduct. I do not think that [counsel] is suggesting that his invitation to characterise the conduct of the lawyers should be applied by you beyond affecting the view you take of Mr Dohrmann’s evidence which is its legitimate limit. I want you to be clear about that. I direct you to disregard his submission about the conduct of the plaintiff’s legal advisors with Mr Dohrmann in any other context, otherwise you may come to an irrelevant and unfair conclusion against Mrs Hudspeth.
Your verdict must be reached by assessing the evidence of witnesses, that is, Mr Dohrmann, and not by speculating about the motives of persons who were not witnesses. Let me know if you are unclear about this.
Verdict
As indicated at the outset, on Wednesday 12 December 2012 the jury returned a verdict in favour of both defendants on liability.
Grounds of appeal
The grounds of appeal are as follows:
1. The trial judge erred in the exercise of his discretion in failing to order that the jury be discharged without verdict on 3 December 2012 after counsel for the secondnamed respondent [the school] in closing address stated of the appellant’s ‘legal team’:
(a) that it had ‘instructed’ Mr Dohrmann ‘to alter his report’;
(b) that ‘the plaintiff’s legal team … didn’t get away with it’;
(c) that ‘their attempt at deception to you about the assumed facts was exposed’;
(d) that ‘the plaintiff’s legal team imposed on Mr Dohrmann to abandon his duty to the court for the purpose of obtaining a forensic advantage for the plaintiff, namely, to present her as a reliable witness when indeed the opposite was true’; and
(e) that ‘these attempts to mislead you should be recognised for what they are’.
2. The trial judge erred in the exercise of his discretion in failing to order that the jury be discharged without verdict on 3 December 2012 on the basis that the appellant could no longer receive a fair trial when the integrity of her counsel and solicitors had been placed in issue by counsel for the secondnamed respondent.
3. Upon the appellant’s application for discharge of the jury without verdict on 3 December 2012 the trial judge ought to have ruled that counsel for the secondnamed respondent explicitly or alternatively implicitly had made the ‘allegation that the plaintiff’s legal representatives are trying to mislead the case and make up a claim for a plaintiff that doesn’t have a meritorious claim’ and thereby denied the appellant of the opportunity to receive a fair trial.
4. The trial judge erred in the exercise of his discretion in failing to order that the jury be discharged without verdict on 6 December 2012 by reason of inappropriate interaction between the instructing solicitor for the second respondent and members of the jury, or alternatively:
(a) to receive oral evidence with respect to that application;
(b) to view court surveillance with respect to that application – and the rule upon the application having received such evidence.
5. The finding of the jury that there was no negligence on the part of the firstnamed respondent [Scholastic Cleaning] which was a cause of injury to the appellant was perverse or not open on the evidence.
Submissions on grounds 1, 2 and 3
Senior counsel for the plaintiff began his submissions on the appeal by reviewing certain aspects of the plaintiff’s case with a view to demonstrating that her case was a very strong one, at least against Scholastic Cleaning, and that the account which she had given in her evidence was consistent, in all of the important respects, with the contemporaneous documentation which was in evidence.
In relation to the question of inconsistencies between the plaintiff and Mr Dohrmann it was submitted that Mr Dohrmann had ‘mixed up’ the facts and that he had admitted that the factual errors were his.
Turning to what senior counsel for the school had said to the jury, it was submitted that what he had said was that the plaintiff’s legal team had incited Mr Dohrmann to commit perjury and that they had been guilty of suborning a witness. It was submitted that the allegation that there had been an attempt to deceptively create an appearance of consistency was untenable, given that the defendants held Mr Dohrmann’s April 2010 reports and had indeed cross-examined the plaintiff on the contents of those reports. It was submitted that the allegations made by senior counsel for the school against the plaintiff’s legal team were not only of a most serious kind against them personally, but they reflected on the plaintiff herself in that it was being implicitly asserted that her lawyers had had such concern as to her credibility that they were prepared to attempt to incite a witness to commit perjury in order to bolster it. The submission was that the direction given by the trial judge was quite inadequate. What had been said was that an important witness, Mr Dohrmann, had been prevailed upon by the plaintiff’s legal team to alter his evidence as to what the plaintiff had told him. Telling the jury that they should put aside the suggestions of misconduct by the plaintiff’s legal team was entirely inadequate to address that situation. It treated what was said as an irrelevance and a distraction, when the plaintiff’s credibility was a central issue and what was said was most prejudicial to her credibility, as well as being entirely untenable.
Senior counsel for the school on the appeal submitted that the consistency and credibility of the plaintiff was a critical issue in the trial, and that it was clear that it was open on the evidence to reach the conclusion that she had given an account to Mr Dohrmann that was quite inconsistent with the account she had given in her evidence.
It was submitted that the plaintiff’s counsel had adopted a ‘high risk strategy’ in order to deal with this inconsistency which involved seeking to have Mr Dohrmann depart from the reports served under Order 44 during his evidence-in-chief, to instead address the facts as read to him from the transcript of the plaintiff’s evidence, and to otherwise rely on the reports served under Order 44 whilst keeping concealed the backdated third report containing detailed changes to the ‘Assumed facts’ made on the explicit instructions of senior counsel for the plaintiff. The report dated 12 November 2012 which Mr Dohrmann signed did not disclose the source of the facts set out in it, and on its face asserted that the relevant source was the plaintiff in the interview held in February 2010.
It was submitted that there were at least four opportunities during the course of the trial for senior counsel for the plaintiff to reveal the existence of the third report and yet it remained concealed until it emerged in the course of the cross-examination of Mr Dohrmann by counsel for the school. It was submitted that the course senior counsel for the plaintiff had taken was high risk, inappropriate, and misleading. Senior counsel had attempted to ‘bypass’ the inconsistencies during Mr Dohrmann’s evidence-in-chief. It was submitted that but for the cross-examination by senior counsel for the school the true character and extent of the inconsistencies might never have been revealed. It was submitted that there was deception involved in what the plaintiff’s legal team did. Senior counsel for the plaintiff was obliged to serve the third report on the defendants. If he had served it in the terms in which he had received it, it would have been a misleading document and a document which did not comply with the expert’s code of conduct. If it had been re-drafted so as to correctly set out the sources of the information relied upon, then the intervention by senior counsel for the plaintiff in seeking to address the significant inconsistencies between what the plaintiff had said in her evidence and Mr Dohrmann’s account would have been revealed in a graphic manner.
It was submitted by senior counsel for the school that this was not a case where counsel had said things to the jury without foundation and that the direction which had been given adequately addressed the position.
Counsel also submitted that this Court should have regard to the fact that all of this took place within what he described as the ‘cauldron’ of a fiercely contested jury trial.
On the appeal senior counsel for Scholastic Cleaning adopted the submissions of counsel for the school in relation to grounds 1 to 3.
Applicable legal principles on grounds 1, 2 and 3
As indicated earlier, in his ruling on the discharge application, his Honour shortly articulated the legal principles which apply when an application is made to discharge the jury by reason of matters raised in an address by counsel, and referred to some of the relevant authorities. There was no contest on the appeal as to the relevant principles, but it is necessary to briefly state them. This issue has been the subject of detailed consideration in three recent judgments of this Court, being Baulch (to which his Honour referred), Rees v Bailey Aluminium,[36] and Reza v Summerhill Orchards.[37]
[36](2008) 21 VR 478 (‘Rees’).
[37][2013] VSCA 17 (‘Reza’).
The fundamental principle is that every litigant is entitled to have his or her case fairly tried free from the intrusion of any extraneous matter calculated to influence the jury.[38]
[38]Rees 486 [16] and 492 [37].
The application of that fundamental principle in relation to the situation under consideration here was addressed by Kyrou AJA in Reza, in terms which I would respectfully adopt. Relevantly, he said:[39]
If … for any reason the jury is exposed to irrelevant and potentially prejudicial material, and one of the parties applies for an order discharging the jury, the question for the trial judge is whether the conduct complained of has seriously affected the proper conduct of a fair trial. The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief. If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authorative direction to the jury. If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.
On appeal from the refusal of a trial judge to discharge the jury in circumstances where … the jury was exposed to irrelevant material, the question for the appellate court is whether to allow the judgment below to stand would effect a substantial wrong or miscarriage of justice. That question depends on whether, in the events which occurred, the fairness of the trial was seriously affected to the prejudice of the party that applied for a discharge of the jury, such that a new trial should be ordered.
…
It must also be borne in mind that, in both criminal and civil jury trials, juries are assumed to understand and comply with directions from the trial judge. The capacity of a jury to decide a case in accordance with the law and the directions of the trial judge should not be underestimated. The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law – that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations – juries comply. The capacity of juries to do so is critical to ensuring that proceedings are fair.
However, in some cases, … the irrelevant material to which the jury is exposed is so prejudicial that no direction by the trial judge can ensure a fair trial. In such a case, the only means by which the prejudice can be overcome is to order a new trial.
[39]Reza [46]-[47] and [50]-[51] – footnotes and citations of authority omitted.
To that exposition of the applicable principles I would add the following:
(a) whether particular conduct by counsel exceeds what is permissible will usually be a question of degree;[40]
[40]Rees 486 [16].
(b) counsel must be especially careful when contending that serious discreditable conduct, such as fraud, has been perpetrated;[41]
[41]Ibid 490 [32].
(c) where an application to discharge the jury has been refused by a trial judge, appellate courts ought to act with great caution, and ought to interfere only in cases where it is plainly demonstrated that the trial judge’s discretion miscarried and that to allow the decision to stand would be inimical to the interest of justice;[42]
[42]Ibid 517 [128].
(d) the conclusion that the trial was unfair is not dependent upon an assessment that the disadvantaged party was likely to have succeeded were it not for the conduct complained of. In a finely balanced or difficult plaintiff’s personal injury case, the conduct complained of might constitute the ‘tipping point’ in the case;[43]
[43]Ibid 519-20 [135] and [139].
(e) timely retraction by counsel may remove, or assist in removing, prejudice;[44]
[44]Reza [48(e)] and [66].
(f) there are circumstances where a matter inappropriately raised by counsel cannot be easily put aside, and where directions are ineffective or even counterproductive;[45] and
(g) sometimes directions might be inadequate because they are not in sufficiently strong terms or because they are belated.[46]
[45]Baulch 12 [48], 18 [74] and 21 [91].
[46]Ibid 17 [71].
Analysis of grounds 1, 2 and 3
It is necessary to be clear about what it was that senior counsel for the school told the jury. It seems to me that what he told them was the following:
(a) the plaintiff’s legal team recognised a problem constituted by the inconsistency between the plaintiff’s evidence of what had occurred and what the plaintiff had told Mr Dohrmann;
(b) the plaintiff’s legal team gave instructions to Mr Dohrmann and their motivation in doing so was to obtain alterations in his report ‘so that an appearance of consistency would be provided to you’;
(c) if the course the plaintiff’s legal team had embarked upon had continued to its conclusion, the jury would have been misled;
(d) the plaintiff’s legal team ‘didn’t get away with it’ and their ‘attempt at deception’ of the jury was exposed;
(e) the steps the plaintiff’s legal team did take were an attempt to impose on Mr Dohrmann a course of conduct which involved him abandoning his duty to the Court;
(f) this was done for the purpose of presenting the plaintiff as a reliable witness when the opposite was the truth;
(g) Mr Dohrmann if he had acted in accordance with his legal obligations would have refused to alter his reports as requested;
(h) the reason he should have refused to alter his reports was ‘because he would have honestly believed that he had set out her version of events as she narrated them to him out at the school’; and
(i) in breach of his obligations, Mr Dohrmann did prepare a third report, ‘meekly complying’ with what the plaintiff’s legal team had asked of him.
It is necessary to emphasise that senior counsel for the school told the jury that the plaintiff’s legal team had attempted to prevail upon Mr Dohrmann to alter his evidence about what the plaintiff had told him at the school in February 2010.
I have indicated that senior counsel for the school sought to justify what he had said on three bases.
The first was that there had in fact been an attempt to have Mr Dohrmann alter his evidence as to what the plaintiff had told him in February 2010.
The second was that the plaintiff’s lawyers had directly intervened so as to alter the ‘Assumed facts’ upon which Mr Dohrmann was to rely in giving evidence as to his opinions, and had then not served the report so created in circumstances where the Rules required disclosure.
The third was that Mr Dohrmann had been ‘primed’ before he gave his evidence as to the fact that a wholesale departure from the Order 44 statement would be undertaken and that in the course of implementing that strategy, which itself was in contravention of the Rules, the third report, which under the Rules had to be served on the other parties, was not served, thereby inevitably leading the other parties and the trial judge to proceed on the basis that no such supplementary report existed.
There is considerable overlap between the latter two justifications. They may be properly seen as different articulations of the same complaint. Essentially, this was also the justification advanced by senior counsel for the school on the appeal.
In itself, there is nothing wrong with an expert being asked to alter the facts that he or she should assume in giving their opinions. In Phosphate Co-operative Co v Shears,[47] Brooking J (as he then was), in the course of what can fairly be described as scathing criticism of the process of the preparation of an expert report in that case, said:
It is one thing to submit to a client or third person acting on behalf of a client a draft of that part of a report which reviews the facts. This may well be perfectly proper and perfectly safe and, indeed, desirable, but to submit a draft of argumentative matter or of reasoning is, I think, asking for trouble.[48]
Brooking J went on to observe:
The guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert.[49]
[47][1989] VR 665.
[48]Ibid 681.
[49]Ibid 683.
Leaving aside the more general issue as to whether the nature of the communications between senior counsel for the plaintiff and Mr Dohrmann did undermine, or appear to undermine, the independence of the expert, mere instructions to an expert to change the assumed facts is not, without more, something which is wrong or improper. Consistently with basic honesty and with the expert code of conduct, those instructions have to be revealed in any report produced as a consequence.
Of course, if the expert is not being instructed to alter ‘assumed’ facts but rather is being instructed to alter his evidence as to what he had been told at a particular interview, that is an entirely different matter. That would be a serious interference with the administration of justice, as counsel for the plaintiff on the appeal submitted. Before the trial judge, senior counsel for the school initially sought to justify what he had said by asserting that this is what had happened, or what had been attempted, but it seems to me that he then resiled from that and asserted other wrong doing or inappropriate conduct, the second and third justifications.
What I have described as the second and third justifications which counsel gave, and which senior counsel for the school re-articulated in the appeal, were founded upon complaints as to the conduct of the plaintiff’s senior counsel which were justifiable. On the evidence as it stood, and as it stands before us, there was an unexplained failure to comply with the Rules both in the course of Mr Dohrmann’s evidence-in-chief and by virtue of the failure to serve his report dated 12 November 2012. Senior counsel for the school on the appeal submitted that senior counsel for the plaintiff at trial had attempted to deal with the inconsistency between the plaintiff and Mr Dohrmann by adopting a strategy that was high risk, inappropriate and misleading. Again, that characterisation is justifiable. The high risks involved in what was done are now all too apparent. There seems to have been, on the material before us, a failure to comply with the Rules; and that failure misled all concerned into assuming no supplementary report existed when one did exist.
Senior counsel for the school at trial would have been justified in complaining, and complaining fulsomely, about the conduct of the plaintiff’s legal team in these respects.
Unfortunately, what senior counsel said to the jury went beyond the legitimate complaints which he might have made. He asserted that the plaintiff’s legal team had set out to deceive the jury into thinking that what the plaintiff had told Mr Dohrmann in February 2010 was the same as what she had told them in her evidence-in-chief. He said the objective had been to present an ‘appearance of consistency’, and that Mr Dohrmann should have refused to alter his report ‘because he would have honestly believed that he had set out her version of events as she narrated them to him out at the school’.
This went beyond what was justifiable in the circumstances.
Apart from anything else, no such deception was possible given that the defendants had the April 2010 reports and had already cross-examined the plaintiff on them.
More importantly, what senior counsel for the plaintiff had attempted to do, in fact, in Mr Dohrmann’s evidence-in-chief was to avoid him giving any evidence of what the plaintiff had told him. He sought to avoid that issue altogether and have Mr Dohrmann address the evidence the plaintiff had given in Court.
Unlike cases such as Rees and Baulch, in this case, although counsel went too far, it is difficult to be critical of him. He had every reason to conclude there had been blatant contravention of the Rules in pursuit of a forensic advantage. That, in combination with other circumstances, particularly the manner in which the existence of the 12 November 2012 report had been revealed, seems to have led him to make an assertion of a most serious kind which, upon analysis, was not justified. What he said the plaintiff’s legal team had done was about as serious an allegation in relation to the conduct of a court proceeding by counsel as could be made. The care which must be taken before allegations of this kind are made has been emphasised in the authorities.
The directions which the trial judge gave were not adequate to meet the prejudice and the unfairness to the plaintiff which arose. It seems to me that senior counsel for the plaintiff on the appeal was correct when he submitted that the allegation against the plaintiff’s legal team was potentially devastating to the plaintiff’s own credibility. It suggested that her legal team had been prepared to engage in seriously wrongful conduct in an attempt to salvage her credibility. Telling the jury that what had been said was irrelevant and a distraction did not, in my view, adequately address the problem. It was a matter which could not be so easily set aside. The jury were not told that what had been said was incorrect and unfounded. It was not retracted. The jury were told to ignore it and that it was a distraction.
The directions were belated, being given a full week after the jury had heard what counsel had said. But, whilst never resiling from the submission that no direction could remedy the position, senior counsel for the plaintiff’s submission at the time was that the direction should be given during the charge and not immediately. Given that position, delay in itself is not a factor of significance here, in my view, as senior counsel was in the best position to assess what timing best advanced the plaintiff’s interests, if the discharge application was rejected
My conclusion is that the appeal must be allowed on these three grounds, and that the jury verdicts must be set aside. The parties should be given the opportunity to make further submissions on what course should then be followed, and in particular whether the matter should be remitted to the trial judge for it to be determined by him, as the plaintiff sought at the trial, or whether a new trial should be ordered. The question of costs will also need to be addressed in that context.
Ground 5
Given my conclusion in relation to grounds 1, 2 and 3 it is unnecessary to address ground 5 in any detail. As I consider that both defendants’ liability should now be decided by the trial judge or in a new trial, it is also undesirable to go into detail in relation to ground 5.
I would not have allowed the appeal on ground 5. In my view it was open to the jury to find in favour of Scholastic Cleaning.
Ground 4
Ground 4 is without substance. A complaint was made to the trial judge as to the conduct of the instructing solicitor for the school. The conduct was said to have involved non-verbal communication between her and members of the jury. What was complained of was said to have occurred in open court in the judge’s presence. The trial judge was in a position to address that matter and, in my view, he did so without error. I reject the submission made that he was bound to hear evidence about the matter and to enquire into it.
- - -
8
5
0