Lawsen v Jensen

[2017] TASSC 34

[2017] TASSC 34

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Lawsen v Jensen [2017] TASSC 34

PARTIES:  LAWSEN, Jade Annie
  v
  JENSEN, Dr Raymond

HEALTHE CARE BURNIE PTY LTD
BODLEY, Dr Roger Nicholas
REGIONAL IMAGING PTY LIMITED t/as REGIONAL IMAGING TASMANIA

FILE NO:  1113/2011
DELIVERED ON:  2 May 2017
DELIVERED AT:  Hobart
HEARING DATE:  1 May 2017
RULING OF:  Estcourt J

CATCHWORDS:

Entitlement to Trial by Jury – Application to dispense with jury – Power to order trial without jury – Relevant considerations – Prolonged examination of documents – Scientific investigation – Not convenient for a jury to do – Order that the trial be tried without a jury.

Supreme Court Rules 2000 (Tas) rr557, 558.
McBride v John Fairfax Publications Pty Ltd [2009] NSWSC 10, followed.
Aust Dig Jury [14]

REPRESENTATION:

Counsel:
             Plaintiff:  L Sealy SC, T Cox
             First Defendant:  K Read SC
             Second Defendant:  P Jackson SC
             Third Defendant:  B McTaggart SC
             Fourth Defendant:  J Noonan SC, S Taglieri
Solicitors:
             Plaintiff:Slater and Gordon Lawyers
             First Defendant:Murdoch Clarke
             Second Defendant:  McLean McKenzie & Topfer
             Third Defendant:  HWL Ebsworth Lawyers
             Fourth Defendant:  HWL Ebsworth Lawyers

Judgment Number:  [2017] TASSC 34
Number of paragraphs:  15

Serial No 34/2017

File No 1113/2011

JADE ANNIE LAWSEN v DR RAYMOND JENSEN, HEALTHE CARE BURNIE PTY LTD, DR ROGER NICHOLAS BODLEY, REGIONAL IMAGING PTY LIMITED T/AS REGIONAL IMAGING TASMANIA

REASONS FOR RULING  ESTCOURT J

2 May 2017

1. In this action all parties acquiesced in an order of the Associate Judge that the trial be heard by a judge with a jury. The defendants were however given liberty to apply pursuant to rule 558 of the Supreme Court Rules 2001, and two of them now do so, although not in respect of any particular question or issue in the action, but rather the whole of the action itself.

2. Rule 558 provides that notwithstanding a party's entitlement under r 557 to a trial by a judge with a jury in respect of any action which could have been instituted as an action at law, a judge may, on the application of any party, direct that the action or question or issue in the action be tried without a jury if the action, question or issue requires "prolonged examination of any document or account or any scientific or local investigation which is not convenient for a jury to do".

3. The plaintiff persists in her position that the entire action be heard by a judge with a jury. The first and second defendants are neutral, and the remaining defendants, the third and fourth defendants, pursue an order dispensing with a jury.

4. In my view it might be said that a medical negligence action involving, as it inevitably does, detailed medical records, could perhaps be more conveniently heard by a judge without a jury, but that is not the test. Any medical negligence action will examine medical records and other documents related to breach and causation, and general and special damages. The question is whether the "prolonged examination" of any document or documents renders it "not convenient" for a jury to do.

5. The most recent trial of a medical negligence action in this Court was that of Carney v Newton. As can be seen from the Full Court appeal in that action Carney v Newton [2006] TASSC 4, which resulted in a retrial before a judge alone, there were difficulties. However those difficulties were associated with inadequacies in the summing-up of the learned trial judge at first instance, particularly as to the burden of proof and causation. It was never remarked or submitted that the nature of the case was such that it ought not to have been heard by a judge with a jury.

6. In my view it cannot be said that a medical negligence action involves ipso facto the prolonged examination of documents, so it is necessary to examine the present action to ascertain whether of its nature it will involve documentary evidence that will require impermissibly prolonged examination or scientific investigation. I turn therefore to the submissions of the third and fourth defendants ("the defendants") and those of the plaintiff in answer.

7. The defendants accept and I regard as apposite, the following statement from the judgment of Nicholas J in McBride v John Fairfax Publications Pty Ltd [2009] NSWSC 10 at [9]-[11]:

   "9     The parties correctly accepted that in order to enliven the court's discretion the onus is on the applicant for the trial to proceed without a jury to show that a prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury (Peck v Email Ltd (1987) 8 NSWLR 430; Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993)).

   10     In Peck, Clarke J held that the mere fact that an examination of documents may be prolonged or because a scientific investigation may involve competing experts does not necessarily mean that either cannot conveniently be made with a jury. He said (p 433C) that convenience is not limited to physical convenience. His Honour expressed the test thus (p 434F):

   '... the applicant for trial without a jury must establish that there are circumstances of unusual difficulty from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing-up.'

   11     In Dwyer, Levine J, in terms with which I respectfully agree, explained the applicant's task as follows:

   ' ... it is insufficient for a defendant merely by reason of the apparent technicalities disclosed in its particulars of matters to be considered by the jury in resolving the ultimate issues simply to rely upon their apparent complexities as pointing first to prolonged examination of documents or scientific investigation being required and asserting it is therefore "too hard" in effect and cannot conveniently be tried by a jury. The applicant for the relief sought ... in a defamation action has to establish that there will be required prolonged examination of documents or scientific investigation and which cannot thereby conveniently be made with a jury. "Convenience" is not limited to "physical" considerations; the length of time (prolonged) involved in examination of documents or scientific investigation does not necessarily mean "cannot conveniently be made with a jury". There must be clearly identified some quality in the evidence the subject of prolonged examination of documents and scientific investigation which in its being presented is such as cannot from a common sense and realistic point of view be apprehended and cannot be made to be apprehended, ie comprehended, by the jury. Complexity disclosed merely in matters particularised is insufficient.'

   (Application for leave to appeal was refused: IPC Magazines Ltd v Dwyer (Unreported, Supreme Court of New South Wales, Court of Appeal, Clarke JA, Meagher JA, Handley JA, 2 August 1993))."

8. In support of their submissions the defendants relied on an affidavit of Alexandra Darcy sworn 1 May 2017. That affidavit succinctly summarises the subject matter of the action as follows:

   "3     The plaintiff, Ms Jade Lawsen ('Ms Lawsen') has made a claim for damages in negligence against the Defendants. She alleges in her Statement of Claim in the consolidated action, filed 21 September 2016 ('the Statement of Claim') a copy of which is annexed marked 'A', inter alia, the following:

   a)that as at 25 May 2009 she was 19 weeks and 3 days pregnant with her daughter, Dallas Lawsen ('Dallas');

   b)on 25 May 2009 she underwent a 20 week foetal morphology scan ('the scan') at facilities owned and operated by the fourth defendant, Regional Imaging Pty Limited, trading as Regional Imaging Tasmania ('RIL');

   c)the scan was conducted by a senior sonographer, Mr Sean O'Regan, a servant and agent of RIL;

   d)the scan was reported on by the third defendant, a radiologist,  Dr Roger Bodley ('Dr Bodley');

   e)the report was communicated to the first defendant, an obstetrician and gynaecologist, Dr Raymond Jensen ('Dr Jensen');

   f)that by whatever mechanism she should have undergone a rescan shortly after the scan;

   g)that at all material times Dallas had a structural abnormality of one or all of the following:

   •       biparietal diameter;

   •       head circumference;

   •       bony orbits;

   •       globes and lenses.

   h)by whatever mechanism the structural abnormality should have been detected;

   i)had the structural abnormality been detected she would have terminated the pregnancy;

   j)Dallas was born with a chromosomal defect, namely a14q22-q23 deletion which manifested itself as, inter alia, an absence of eyes and profound mental and physical disabilities."

9. Ms Darcy deposes that :

   "14    The determination of liability against each defendant will therefore involve the following matters:

   a)What was the scope and content of the duty of care owed by Mr O'Regan to Ms Lawsen as the sonographer and was there breach?

   •       Did Mr O'Regan have a duty to visualise the orbits and if so, did he discharge that duty?

   •       Did Mr O'Regan have a duty to capture, by ultrasound image, a coronal or axial image of the orbits and if so, did he discharge that duty?

   •       Did Mr O'Regan have a duty to visualise the content of the orbits and if so, did he discharge that duty?

   •       Did Mr O'Regan have a duty to prepare and present to Bodley a worksheet that identified those anatomical structures for which an image had or had not been captured and if so, did he discharge that duty?

   •       Did Mr O'Regan have a duty to measure the bi-parietal diameter and if so, did he discharge that duty?

   •       Did Mr O'Regan have a duty to measure the head circumference and report to Dr Bodley if it was less than the tenth percentile and if so, did he discharge that duty?

   b)What was the scope and content of the duty of care owed by Dr Bodley to Jade as the radiologist and was there breach?

   •       Did Dr Bodley have a duty to review the orbits and their contents and if so, did he discharge that duty?

   •       Did Dr Bodley have a duty to report on any image that had not been captured and if so, did he discharge that duty?

   •       Did Dr Bodley have a duty to review the measurements of the bi-parietal diameter and head circumference and report if they were less than the 10th percentile and if so, did he discharge that duty?

   •       Did Dr Bodley have a duty to recall Ms Lawsen in the event that the series of images were incomplete and if so, did he discharge that duty?

   c)What was the content and the scope of the duty of care owed by Dr Jensen to Ms Lawsen as the obstetrician/gynaecologist and was there breach?

   •       Did Dr Jensen have a duty to refer Ms Lawsen back for a morphology scan to RIL and / or another radiology practice?

   •       Did Dr Jensen have a duty to undertake a repeat scan himself and if so did he discharge that duty?

   •       Did Dr Jensen have a duty to review the orbits and their contents and if so, did he discharge that duty?

   •       Did Dr Jensen have a duty to review the measurements of the bi-parietal diameter and head circumference and report if they were less than the 10th percentile and if so, did he discharge that duty?"

10. Ms Darcy goes on to state that the question of liability will involve examination of the scan images and the various divergent medical and scientific opinions. She states that documents which will be relevant are:

    "Report of Professor Hyett to Slater & Gordon dated 21 January 2013, annexed and marked 'I';

    Report of Dr Lyn Brothers, to Slater & Gordon, undated, annexed and marked 'J';

    Report of Professor Alexander Pitman to Simmons Wolfhagen dated 17 September 2015, annexed and marked 'K';

    Report of Dr Michael Jones to Simmons Wolfhagen dated 22 April 2014, annexed and marked 'L'."

    She notes that each of those experts referred to cite multiple academic and scientific papers in support of their views. She states that the expert evidence is contained in voluminous documentation.

11. Ms Darcy's affidavit continues as follows:

    "31      … The expert evidence relevant to the necessary finding involves a large volume of documentation … .

    32        There are currently approximately 32 expert reports/proofs which have been exchanged involving a total of about 24 experts. In addition these experts have referred to numerous articles in support of their opinions. … .

    33        …

    34        Currently the defendants have issued approximately 10 subpoenas and there are over 175 discovered documents. … they are relevant to the costs incurred and type of care provided to date … ."

12. The plaintiff does not dispute the matters of fact asserted in Ms Darcy's affidavit, but submits as follows:

"Trial by Judge and Jury

40     The plaintiff elected a trial before judge and jury. She has a prima facie entitlement to that trial which 'will not lightly' be set aside.   The defendants bear the onus of demonstrating 'some special reason to do so'.  [Matthews v SPI Electricity Pty Ltd (Ruling No 8) [2012] 35 VR 643 at [56].]

41     The relevant principles are settled and well understood.  The issue is not primarily one of purported 'cost and efficiency' (Trevor Roller Shutter Services v Crow (2011) 31 VR 249 at [38]-[41]).

42 r558 has little or no role to play in this application. The action does not require prolonged examination of any document or scientific investigation which is not convenient for the jury to do.

43     The claimed complexity of this case is grossly overstated by the third and fourth defendants.  While the case may involve complex legal issues, once the jury is directed as to the law it is then merely a matter of application on the facts found by the jury.  This is demonstrated by the primary liability question that would likely be put to the jury:

'Was there negligence on the part of the defendants which was a cause of the plaintiff's loss and damage?'

44     That question incorporates elements of breach of duty, causation and loss and damage, all of which are largely factual, and all of which may be decided by a jury."

1. In written submissions filed on behalf of the defendants, their counsel contend as follows:

   "TRIAL BY JUDGE ALONE OR JUDGE AND JURY?

   The Rules and Authorities

   62 Rule 557 of the Supreme Court Rules 2000 (The Rules) relevantly provides that, subject to Rule 558, the plaintiff is entitled to have this action tried by a judge with a jury.

   63     Rule 558 allows the defendants' to apply to and the Court may direct, that the action or any question or issue in the action be tried without a jury.  The Court may do so if the action, question or issue requires prolonged examination of any document or scientific investigation which it is not convenient for a jury to do. 

   64     These rules were considered in Gunston v Davies Bros Pty Ltd [2010] TASSC 65. In that case the defendants applied pursuant to Rule 558 for the plaintiff's action for defamation to be tried by a judge without a jury. The defendants relied upon the large number of documents required for trial as providing the basis for the Court to so order. The defendants argued that their examination would be prolonged and that it was inconvenient for a jury to do so.

   65     In his judgment the Associate Judge cited Beta Construction Ltd v Channel Four Television Co Ltd (1990) 2 All ER 1012 for the following propositions, at [6]:

   aThe reference to convenience directs attention to the efficient administration of justice more than it directs attention to the probable difficulty or otherwise of the issues involved.

   bThe trial can conveniently be conducted by a judge with a jury if it can be so conducted without substantial difficulty in comparison with carrying it out with a judge alone.

   cSometimes the need to examine many documents will present no practical difficulties.  Sometimes, even if the documents are not voluminous, minute examination is called for and will present formidable practical difficulties.

   dIf the likely duration of the trial is significantly increased by the time taken up with the jury examining documents, then an element of inconvenience arises.

   eIncreased expense caused by the prolongation of the trial is an element of inconvenience.

   fThe risk that a jury might not sufficiently understand the issues on the documents in order to resolve them correctly presents inconvenience in that the reasoning of the jury cannot be exposed to the same scrutiny as the reasoned judgment of a judicial officer.

   66     Beta Construction Limited v Channel Four Television Co Ltd was cited in Syddall v National Mutual Life Association of Australasia Ltd [2008] QSC 101. Daubney J referred to the judgment of Stuart-Smith LJ, with whom Ralph Gibson LJ agreed, as enumerated four main areas in which the efficient administration of justice may be rendered less than convenient if the trial takes place with a jury:

   aThe physical problem of handling, in the confines of the jury box, large bundles of documents or documents that are so bulky that they cannot conveniently be looked at;

   b       The question of prolongation of the trial;

   'But where the prolongation is likely to become substantial because of the number and complexity of the documents the administration of justice is affected. If a judge does not understand a document or follow a point made upon it, he can say so and the matter is clarified. Furthermore, he will often study the documents out of court. The jury are unable to do this. Counsel have no means of knowing whether the documents or points made on them are really understood; they must therefore go on what they believe, perhaps quite mistakenly, to be the pace of the slowest jurors. And until they retire to consider their verdict jurors have no chance to study the papers in out of court hours. By no means all jurors can be expected to understand accounts and complex commercial documents. Substantial prolongation of the trial not only uses scarce resources in court and judge time, so that they are not available for other litigants, but it adds significantly to the burden of costs to be borne by the parties.' [at p1017]

   c.The question of expense, not only involved in making the extra copies of the documents for the jurors, but because if the cost of litigation is to be significantly increased because of trial by jury instead of by judge alone, justice may be denied to one or both of the parties [at p1017];

   d.The risk that the jury may not sufficiently understand the issues on the documents to resolve them correctly.

   'The judge may also misunderstand them; but he has to give a reasoned judgment and if he is in error, it can be corrected in this Court. Not so with a jury; no-one can ever know upon what grounds they reached their verdict. Where the documents which require prolonged examination are such that the average jury man cannot be expected to be familiar with them, such as accounts and commercial documents, this risk is enhanced.' [at p1017-1018]

   67     Where a court is required to evaluate competing evidence of a scientific nature including medical evidence it is involved in a 'scientific investigation'. The 'scientific investigation' involved would ordinarily, in order to justify the application of the rule [dispensing with the jury], need to be such an investigation as offered circumstances of unusual difficulty, that is to say, from the point of view of the jury apprehending the relevant questions and from the point of view of the judge presenting them to the jury: Peck v Email Ltd (1987) 8 NSWLR 430 at 433; Wilson v Burridge [1955] VLR 433 and Muller v Nance [1936] ALR 363.

   68     In Peck v Email Ltd Clarke J held that the issue of which of the plaintiff's employers was responsible for ingestion of critical asbestos fibres or dust allegedly causing the condition of pleural mesothelioma involved a scientific investigation which could not be conveniently made by the jury. He held that this causation question was complex and involved a detailed analysis of scientific medical evidence relating to the cause of the disease. The causation in this action is similarly complex and involves a detailed analysis of scientific medical evidence.

   69     In Wilson v Burridge Scholl J found that the assessment of alleged brain injuries including in relation to two children suffered in a road collision involved a scientific investigation of which could not conveniently be dealt with by the jury. However he exercised his discretion against discharging the jury due to the greater inconvenience to the parties in doing so when the action was part heard."

1. I find those submissions compelling when viewed through the prism of the factual material set out in Ms Darcy's affidavit. In my view the plaintiff's submissions do not satisfactorily answer the key proposition that the breach and causation issues in this action are complex and will involve a detailed analysis of divergent expert medical evidence contained in voluminous documents. I am satisfied that notwithstanding the plaintiff's prima facie entitlement to a jury, the number of issues in respect of which there will be divergent expert views set out in documents which would go into evidence and the reliance by the medical experts on learned scientific papers, give the evidence a quality that is significantly outside that which can conveniently be considered by a jury. The reports, proofs and papers are documents that would require prolonged examination in the nature of a scientific investigation that the average juror could not be expected to apprehend and undertake, even with the most careful summing-up of the evidence and directions of law given by the trial judge.

2. I make an order under r 558 that the action be tried without a jury.