King v Amaca Pty Ltd

[2011] VSC 433

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2011 01411

ERIC KING	Plaintiff
v
AMACA PTY LTD (Under NSW Administered Winding Up)	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 August 2011
DATE OF RULING:	15 August 2011
DATE OF REASONS:	5 September 2011
CASE MAY BE CITED AS:	King v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 433

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PRACTICE AND PROCEDURE – Application for hearing to proceed without a jury – Claim for damages for contraction of mesothelioma as a result of exposure to asbestos dust and fibres at the defendant’s factory – Complex legal and factual issues involved – Rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Over	Maurice Blackburn Pty Ltd
For the Defendant	Mr G Watson SC with Mr G J Moloney	Thomsons Lawyers

HIS HONOUR:

Introduction and summary

1. On 29 March 2011, the plaintiff filed a writ against the defendant claiming damages for contracting mesothelioma as a result of exposure to asbestos dust and fibres at the defendant’s factory in 1972.  The writ specified ‘Judge and Jury of Six’ as the mode of trial.  The proceeding was listed for hearing on 15 August 2011. 

1. On 15 August 2011, prior to a jury being empanelled, the defendant applied for a direction, pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), that the trial proceed without a jury.

1. Rule 47.02(3) relevantly provides that, notwithstanding any signification in the writ that the plaintiff desires to have the proceeding tried with a jury, ‘the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury’.

1. The defendant submitted that this was an appropriate case for a direction under r 47.02(3) because it involved complex legal and factual issues. The defendant referred to conflicting case law on causation and to the complex medical and scientific issues that were dealt with in the parties’ experts’ reports. The defendant also submitted that trial by judge alone would have the advantage of a reasoned judgment of the trial judge which would facilitate an appeal, particularly given that causation issues that were similar to those in this proceeding would be considered by the High Court in October 2011 in the case of Amaba Pty Ltd v Booth.[1] 

   [1][2010] NSWCA 344 (10 December 2010).

1. After hearing argument, on 15 August 2011, I refused the defendant’s application.  I said the following:

My very clear impression, based on a reading of the experts’ reports, is that they do not raise issues which are incapable of comprehension by a jury after explanation and assistance by the judge. Accordingly, I am not persuaded that the defendant has made out a case under Rule 47.02(3) that in the circumstances of this proceeding the trial should be undertaken in a mode other than the one selected by the plaintiff. I will deliver short reasons in writing at a later time.

1. These are my reasons for the above ruling. 

Authorities

1. The parties referred to a large number of authorities that dealt with the circumstances in which the Court may disregard a party’s choice of trial by jury, and proceed to a trial without a jury.  While those cases were helpful, ultimately the Court’s decision must be based on the circumstances of each case, and on the judge’s assessment of whether he or she can direct the jury adequately on the legal and factual issues involved and whether the jury is capable of determining the factual issues on the basis of those directions. 

1. The cases demonstrate that this Court has a long tradition of placing great faith in the ability of civil juries to determine complex factual issues once the law has been explained to them and that experience has shown that this faith has been well placed.[2]  I need only refer to two unreported rulings, both of which dealt with lung diseases resulting from exposure to asbestos dust and fibres. 

   [2]See, eg, Victoria v Psaila [1999] VSCA 193 (29 November 1999) [24]; Gunns Ltd v Marr [No 5] [2009] VSC 284 (20 July 2009) [9]; Messade v Baires Contracting Pty Ltd [No 4] [2011] VSC 75 (10 March 2011) [35]-[36].

1. The first ruling was made in Hasner v Pen-Insula (Vic) Pty Ltd (In Liquidation).[3]  That case involved a claim by the plaintiff against 11 defendants, including Amaca Pty Ltd,[4] for damages arising out of the contracting of mesothelioma as a result of exposure to asbestos dust and fibres.  In his writ, the plaintiff sought trial by judge and a jury of six.  Later, the plaintiff applied for a trial by judge alone on the following bases:  first, the likely duration of the trial; secondly, the complexity of the issues in the proceeding; and thirdly, that a reasoned judgment from a judge sitting alone would produce a more certain result.  Some of the defendants opposed the plaintiff’s application. 

   [3]Unreported, Supreme Court of Victoria, Byrne J, 10 February 1995.

   [4]Amaca Pty Ltd was then known as James Hardie & Co Pty Ltd.

1. Byrne J refused the plaintiff’s application for the following reasons:

In [his] writ the plaintiff sought trial by judge and a jury of six and I start from the position that this should be the mode of trial unless the circumstances require otherwise. 

…

The trial is estimated to run for some 20 sitting days.  In the ordinary course that would not provide a basis for dispensing with a jury.  It was contended, however, that the fact that the plaintiff had a life expectancy of some months as a maximum was a factor which rendered it undesirable that a significant part of this should be spent in Court.  The argument as put contains two assumptions which I am unwilling to accept.  First that the absence of a jury will materially shorten the trial and second that it is necessary or desirable that the plaintiff be present throughout its duration. 

The issues of law [and] fact in the trial are likely to be complex.  There is a conflict of medical opinion as to whether the plaintiff is in fact suffering from mesothelioma or from adenocarcinoma.  Such a conflict, however technical, has long been treated as fit for jury determination.  Next it is said that there is much evidence to be called and explored as to the procedure for testing for asbestos fibre available in the 1960’s.  Again, I cannot suppose that this is beyond the capacity of the jury to grasp. 

Finally, it was said that, given the imminence of the plaintiff’s death, it is important that he obtain a certain result, a result that is unlikely to be overturned on appeal.  In such a case, of course, a retrial is not practicable.  This argument started from the position, which may well be correct, that the disproportionate number of peremptory challenges to the jury list available to the defendants will produce a jury which is not representative of a broad cross-section of the community.  Then, it is said, there will be a risk of a perverse verdict.  I am not persuaded that this conclusion is likely to follow.  In any event this risk, if it be a risk, has been known since 9 January when the third parties were joined.  No application of this nature has been made notwithstanding much opportunity to do so.  I should add that the prospect of a successful appeal is more real to the case where a judge alone gives a reasoned judgment on issues of law and fact, rather than that where there is only the verdict of a jury to challenge.

Accepting as I do that this will be a complex trial it is essentially one of a kind which has traditionally been considered appropriate for trial by jury.  In the face of opposition from the principal defendants I am not persuaded that the justice of the case requires that this trial be conducted otherwise.[5] 

[5]Hasner v Pen-Insula (Vic) Pty Ltd (In Liquidation) (Unreported, Supreme Court of Victoria, Byrne J, 10 February 1995) 2-4.

1. The second ruling was made in Donoghue v AE Atherton & Sons Pty Ltd.[6] That case involved a claim by the plaintiff against his former employer and Amaca Pty Ltd for damages arising out of the contracting of lung cancer as a result of exposure to asbestos dust and fibres. In his writ, the plaintiff sought trial by judge and a jury of six. Prior to the jury’s empanelment, Amaca Pty Ltd sought a direction under r 47.02(3) that the trial proceed without a jury on the basis that it would be impossible for the jury to understand the scientific evidence of the experts.

   [6]Transcript of Proceedings, Donoghue v AE Atherton & Sons Pty Ltd (Supreme Court of Victoria, 5794 of 2010, Beach J, 1 March 2011).

1. Beach J refused Amaca Pty Ltd’s application.  In an ex tempore ruling, his Honour said as follows:

[M]y view is at the moment that the second defendant has not persuaded me that the issues in this case are of such complexity as to justify the changing of the mode of trial from jury to judge alone.

As I said in argument, that matter may be revisited once the jury is empanelled and once the evidence is called, but this is a lung cancer case which no doubt will involve scientific evidence and specifically epidemiological evidence and perhaps evidence from industrial hygienists.  It may also require some understanding of what relative risks or odds ratios are, depending on whether particular studies are cohort studies or not and the explanation to the jury of the calculation of attributable fraction.  But these matters have been done before and I don’t, as currently advised, see why the plaintiff should not have his opportunity of presenting the matter to a jury.  As I said in argument, juries are often – we don’t given them enough credit for the fact that they are very intelligent and they are very conscientious.[7] 

[7]Transcript of Proceedings, Donoghue v AE Atherton & Sons Pty Ltd (Supreme Court of Victoria, 5794 of 2010, Beach J, 1 March 2011) 12.

Reasons for refusing the defendant’s application

1. For the purpose of determining the defendant’s application, I considered the authorities which were said to raise complex legal issues in mesothelioma cases, particularly in relation to causation.  I formed the view that, notwithstanding that the authorities dealt with complex legal issues and did not deal with those issues in an entirely consistent manner, I would be in a position to give to the jury directions on the law in a manner that would enable the jury to understand the legal principles that it would be required to apply in resolving the factual issues in the proceeding. 

1. I also considered the experts’ reports that had been filed.  Once again, I formed the view that, notwithstanding the complex medical and scientific issues that were dealt with in the experts’ reports, I was confident that counsel could adduce the experts’ evidence in a manner that would be readily understood by the jury and that I could summarise that evidence in a similar manner. 

1. In relation to the defendant’s reliance on the forensic advantages that it said it would have if the trial proceeded by judge alone, it seemed to me that, in the circumstances of this case, a direction should not be made under r 47.02(3) for the purpose of giving the defendant a forensic advantage. It may be assumed that the plaintiff’s lawyers recommended trial with a jury because of perceived forensic advantages for the plaintiff. If so, it is not for me to deprive the plaintiff of those forensic advantages for the purpose of conferring forensic advantages on the defendant.

1. For the above reasons, I refused the defendant’s application for a direction that the trial proceed without a jury. 

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