Li v Toyota (Ruling No. 3)
[2010] VSC 448
•1 October 2010 (written reasons 4 October 2010)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9344 of 2009
| JAMES LI | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 23, 24, 27, 28, 29 and 30 September, 1 October 2010 | |
DATE OF RULING: | 1 October 2010 (written reasons 4 October 2010) | |
CASE MAY BE CITED AS: | Li v Toyota (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 448 | |
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COURTS – Practice and procedure – Trial – Civil jury trial – Counsel’s address – Comment on plaintiff’s entitlement to workers’ compensation – new trial ordered.
PRACTICE – Counsel’s address – Reference to payments of workers’ compensation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Adams QC Mr M. Ruddle | Clark Toop |
| For the Defendant | Mr D. Curtain QC Ms F. Ryan | Minter Ellison |
HIS HONOUR:
Introduction
On Friday 1 October 2010 senior counsel for the plaintiff, Mr Li, applied to discharge the jury on the basis of remarks made by senior counsel for the defendant, Toyota, in the course of his final address. After hearing argument I granted the application. I gave oral reasons at the time. These are, as I promised, my expanded written reasons.
Mr Li sued his employer Toyota, in common law negligence and breach of statutory duty for injuries sustained in the course of his employment. The trial occupied approximately six days of evidence. Toyota denied liability and also asserted that there was no causal link between Mr Li’s employment and his significant knee injury which was the subject of the litigation.
The trial
During the course of the trial, the issue of payments of workers’ compensation arose on several occasions. It was mentioned by Mr Li’s senior counsel in his opening address. Evidence was led from Mr Li as to his receipt of payments of compensation and an exhibit, P 9, was tendered which contained Mr Li’s application for compensation and a letter from Toyota’s claims agent admitting liability for injuries sustained at work by Mr Li.
The substance of the closing address to the jury of counsel for Toyota was that his client had not breached its common law or statutory duty to Mr Li. He emphasised to the jury Mr Li’s unreliability as a witness in the light of other evidence that had emerged during the course of the trial. Towards the end of his address he said as follows:
Mr Adams will say that the defendant, by accepting the plaintiff's claim for compensation, admits that the plaintiff suffered injury in the course of his employment. That's a matter for you and you can infer that if you wish to. However, the question here is not whether he suffered injury in the course of his employment, it's whether there was negligence, whether there was fault.[1]
[1]T 696.
Pausing here, in my view, there could be no complaint about this reference – it was legitimate to mention workers’ compensation and make the point that it was only relevant to the issue of causation. Counsel went on to say:
The plaintiff is entitled to workers compensation if he injures himself at work, whether it's the fault of the employer or even the fault of the employee. If he hurts himself at work or work aggravates an injury, he's entitled to workers compensation. That's not the question here. The question is is there fault? The question is has the plaintiff proven fault on the part of the defendant and don't be confused by that. We say the plaintiff has had compensation through worker's compensation and you've been told that that's the case. In this case he's seeking more, he's seeking pain and suffering damages and economic loss damages over and above his worker's compensation entitlements and to get those he has to prove fault.[2]
and shortly afterwards:-
There's an abnormal knee, work imposed upon it, may have aggravated it, according to the plaintiff's doctor. But that's not to say that he wins this case. That's a reason to get worker's compensation, but he has to prove fault of the employer.[3]
and in his closing remarks to the jury:
Mr Li's entitled to compensation but he's not proved any breach of duty or breach of statutory duty that entitles him to benefits. We say you answer Question 1 no and Question 2 no and that's the end. Now, you might think that's hard to do and it might be. It might be easy to say yes. Good judges have to say no. As a parent, sometimes you have to say no to your children. I'm not saying you're a parent to Mr Li's child or anything like that, but I'm saying sometimes it's hard to say no, but sometimes it's the right thing. When you consider your answer to Question 1 and Question 2 could I be so bold as to remind you of your oath or affirmation that you'll do so fearlessly and without fear or favour. I suggest if you do your task properly you'll answer it no. With contributory negligence you don't have to consider that unless you answer Question 1 or 2 yes. If you do decide that the defendant was negligent, as I urge you not to. But if you do you have to look at whether or not the plaintiff contributed to it. You will decide I suspect, if you do decide against my client that they should have insisted he rotate more.[4]
[2]T 697.
[3]T 698.
[4]T 699.
Discharge of the jury
The gravemen of the complaint made by counsel for Mr Li is that in his address to the jury Toyota’s counsel unnecessarily referred to Mr Li’s right to obtain workers compensation, leading the jury to conclude or infer:
(a)that Mr Li was endeavouring to seek more than was his proper entitlement by bringing a common law claim;
(b)that Mr Li was being greedy;
(c) that the jury in determining the case as the judges of the facts and answering no to the case on negligence and breach of statutory duty should take into account the fact that Mr Li was entitled to payments of workers compensation. In other words, there is a fall back position for Mr Li if he fails at common law;
(d) compendiously, that there were several irrelevant statements to the jury concerning workers’ compensation payments which were designed to distract the jury from its real task. This was all in the background of a sustained attacked upon Mr Li’s credibility.
Counsel for Toyota contends that his address did no more than highlight the distinction between workers’ compensation benefits and a no fault award on the one hand and on the other, a common law claim in which fault must be established. This he said was legitimate as it arose in the context of Mr Li relying upon payments of compensation and Toyota’s admission of liability to pay impairment benefits as constituting an admission by his client as to the link between employment and injury. In particular, he contended that this case was clearly distinguishable from counsel’s address in Baulch v Lyndoch Warrnambool Inc[5] (where the Court of Appeal held that the jury should have been discharged because of counsel’s irrelevant statements concerning workers’ compensation payments and entitlements) to which I shall refer in a moment.
[5][2010] VSCA 30.
I accepted, as counsel pointed out, that at various times in the course of the case, there have been references to payments of workers compensation. Counsel also correctly noted that I had, on at least one occasion, directed the jury specifically to ignore the question of such payments and focus on the evidence and the issues in the trial.
The problem here, though, is not what occurred during the trial, but what was said in the course of the final address, with emphasis, in my view, irrelevantly on Mr Li’s entitlement to workers’ compensation payments.
In Chatzipantelis v Grimwade Castings[6], the Full Court said:
In our opinion, in a common law claim for damages reference to a plaintiff’s possible entitlement under workers compensation legislation, where the same is not directly in issue, is an irrelevancy of the kind that it is the policy of the law to exclude from a jury. In Price v Glynea and Castle Coal and Brick Co, it was held that not only was a judge not bound to refer before a jury to the amount which could be recovered as workers compensation but it would be a misdirection to do so. In Rowe v Edwards, Evatt J said that all such references are to be suppressed. Dixon J (as he then was) said, in Fitzpatrick v Walter E Cooper Pty Ltd: “The possibility of the plaintiff’s possessing a remedy under the Workers’ Compensation Act could not be taken into account in assessing damages under Lord Campbell’s Act, and a reference to such a remedy could only contribute to the chance of error.” McTiernan J, entertained a similar opinion.
The reason for such a policy of exclusion is expressed by the Full Court of New South Wales in Croll v McRae, to be that a party is entitled to have his claim fairly tried, free from bias and prejudice, and free from the intrusion of an extraneous matters calculated to influence the jury improperly in arriving at a determination. (citations omitted)
[6][1966] VR 242, 245.
Earlier this year the Court of Appeal in Baulch v Lyndoch Warrnambool Inc,[7] reaffirmed what had been said previously by the Full Court in Chatzipantelis, emphasising that notwithstanding an assumption of community awareness as to a worker’s right to compensation payments, it is an irrelevancy in a common law trial. In particular the Court said that references to workers’ compensation entitlements, in the context of the address in that case:
… can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injury which she received. The argument put by counsel was that she should not get damages because she had received and would continue to receive workers’ compensation; that the jury could safely find for the respondent, secure in the knowledge that the appellant had been and would be compensated in any event.
[7][2010] VSCA 30.
In my view, each of the complaints made by Mr Li have substance and should be accepted. I think that there is a distinct likelihood that the jury could improperly have taken into account the fact that Mr Li has a workers’ compensation entitlement and, significantly, may also have concluded that in bringing this claim he was being greedy by seeking “more”. Moreover, counsel’s remarks could, I think, have led the jury to conclude that in finding that Toyota was not liable, Mr Li had, in any event, the right to obtain workers’ compensation benefits. In other words, a safety net.
I was then required to consider whether the jury should be discharged.
In Baulch, the Court highlighted the problems associated with endeavouring to formulate an appropriate direction to the jury in the event that it is concluded that workers’ compensation has been wrongly mentioned to the jury:-
The offending argument was put by defence counsel at the beginning of the first speech the jury heard. Indeed, even if there had been an immediate response from the judge at the time the error was made or a strong direction given later in his charge, it must be regarded as extremely doubtful that the situation could have been adequately recovered. The appellant’s case may well have already been fatally affected.[8]
And then said:
Even if the trial judge in this case had, at some stage, given an appropriate direction concerning defence counsel’s address, it would be difficult to feel any real satisfaction that the jury had not been irretrievably prejudiced against the appellant by his irrelevant and inappropriate argument.[9]
[8]Baulch [72].
[9]Baulch [75].
Baulch was, of course, a very different case – involving remarks which the Court of Appeal concluded were calculated to distract the jury. That is not the case here. I thought long and hard about whether it was possible to give a strong direction to the jury to ignore what was said by counsel in final address and avoid a discharge of the jury. Regrettably, I came to the view that a direction would not cure the harm which was done. The salutary warnings in both Baulch and Chatzipantelis demonstrate that reference to workers’ compensation should be kept to a minimum in a common law trial and then only in context. I considered that the risk that the jury might think that Mr Li was acting illegitimately in seeking common law damages over and above workers’ compensation payments or, alternatively, was to be comforted by the fact that Mr Li is entitled to workers compensation payments if he fails at common law could not be dispelled by an appropriate direction.
In the circumstances, the appropriate course to be undertaken was to discharge the jury.
New trial
The next question to be resolved was how the case should be dealt with as a result of the discharge of the jury.
Both parties submitted that I should hear the case and determine it myself. I indicated to counsel during the course of discussion that I was uncomfortable with this approach. Counsel for Mr Li accepted, that as an alternative, he would be content with the proceeding being referred to another judge of this Court for trial – this week, if practicable.
After considerable reflection, I determined that it would be inappropriate for me to hear the case myself. Such an option is patently open to me[10] and would, in many cases, be the preferable course of action. This case, however, raised significant issues concerning Mr Li’s credit, which had to be determined by the tribunal of fact at that time – the jury. It was not my task, during the course of the trial, to assess his credibility or reliability; rather, it was to ensure that the trial was presented in accordance with law before the jury.
[10]See r.47.02; Pezzimenti v Seamer& Ors [1995] 2 VR 32; Altman v Dunning [1995] 2 VR 1.
I accept that in many cases where a jury is discharged a trial judge is able to continue to hear the trial and determine the issues which have arisen. Indeed, that is clearly the preferable position, given the cost and expense involved in a re-trial. Having said that, I am distinctly uncomfortable in determining this case on issues upon which I have not focused in the course of the trial – particularly an assessment of the credibility of Mr Li, which was fundamentally an issue for the tribunal of fact – the jury - rather than the judge.
I think it particularly difficult in a case involving a significant credit and reliability issue for the trial judge to retrospectively evaluate this issue. In the circumstances it would be contrary to the interests of both parties if I attempted to do so.
In reaching the conclusion that I should not hear the case, I was also mindful of the fact that there is a judge of the Trial Division able to hear the retrial at short notice. The most pragmatic way to effect a speedy disposition of this trial is for it now to be referred to another judge (as I have done) and for it to be heard as a cause.
It was Toyota’s conduct that led to the discharge of the jury. It is Toyota that seeks trial by jury and Mr Li should not be subjected to a further lengthy jury trial when there is a significant prospect that a trial before an experienced common law judge sitting alone would take two to three days.
Accordingly I determined that the appropriate course was to refer the retrial of this proceeding to another judge for hearing as a cause.
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