Love v TAC - [2017] VSC 491

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 05193

DARREN LOVE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 – 24 August 2017
DATE OF RULING:	23 August 2017
CASE MAY BE CITED AS:	Love v TAC
MEDIUM NEUTRAL CITATION:	[2017] VSC 491

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APPLICATION TO DISCHARGE A JURY – Negligence – Jury trial – Principles applicable to discharging a jury – Closing address of defendant’s counsel – Loss of opportunity to lead evidence – Significant prejudice suffered by the plaintiff – Continuation of trial by judge alone – Obligations under the Civil Procedure Act 2010 (Vic) – Halligan & Ors v Curtain & Ors [2013] VSC 124 – Reza v Summerhill Orchards Ltd (2013) 37 VR 204 – Trevor Roller Shutter Services Pty Ltd v Crowe [2011] VR 249.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. O’Dwyer, QC with Mr A. Hill of Counsel	Slater & Gordon
For the Defendant	Ms R. Annesley, QC with Mr A. Saunders of Counsel	Transport Accident Commission

HER HONOUR:

On the seventh day of this trial by jury for damages for a personal injury suffered by the plaintiff in a motor vehicle, counsel for the plaintiff applied for the discharge of the jury. The application was opposed.

The application was made after senior counsel for the defendant put to the jury in closing address that the jury ought to find the plaintiff was an unreliable witness on a number of bases, including the fact of the plaintiff’s serious previous psychiatric condition, which included having blackouts and his memory being affected by the blackouts, and the fact that the jury had no evidence before it to consider whether those blackouts continued at the time of the motor vehicle accident in August 2011.

Submissions

Senior counsel for the plaintiff submitted that the defendant’s closing address, invited the jury to find that the plaintiff was an unreliable witness on a number of bases, including that his previous psychiatric condition which involved having blackouts made him ipso facto unreliable.

The plaintiff’s counsel submitted that the defendant’s closing address introduced irrelevant and prejudicial material that would make it impossible for the plaintiff to now receive a fair trial from the jury. It was submitted that in light of an earlier ruling made by the court specifically addressing the issue about the admissibility of evidence in relation to the plaintiff’s pre-existing psychiatric condition, that the closing address disregarded the earlier ruling and now caused irreparable prejudice to the plaintiff which cannot be cured by way of a direction in my charge.

The plaintiff’s counsel submitted that the defendant has used the evidence of the plaintiff’s pre-existing psychiatric condition, and in particular the blackouts, in an impermissible way. It was submitted that exhibit D3, the extracts from the Hospital records relating to the plaintiff’s admission to the psychiatric units in February and March 2011 were now before the jury and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Love v TAC

Details

AGLC: Love v TAC [2017] VSC 491
Case: [2017] VSC 491
Decision Date: 23 August 2017

CaseChat Overview and Summary

The applicant, Love, brought an application in the Supreme Court of Victoria against the respondent, TAC, seeking damages for personal injury. The case involved a complex dispute concerning negligence and the proper conduct of a jury trial. The key issue for the court was whether the jury should be discharged and the trial continued by the judge alone, in light of an alleged error in the defendant's closing address that may have prejudiced the plaintiff.

The court considered the principles governing the discharge of a jury, focusing on the loss of opportunity to lead evidence and the significant prejudice suffered by the plaintiff. The case hinged on whether the defendant’s counsel's closing address contained prejudicial statements that could not be rectified by a direction to the jury. The court examined relevant authorities, including Halligan & Ors v Curtain & Ors, Reza v Summerhill Orchards Ltd, and Trevor Roller Shutter Services Pty Ltd v Crowe, to determine the appropriate course of action. The decision emphasised the importance of ensuring a fair trial and protecting the plaintiff's rights.

After considering the arguments and authorities, the court concluded that discharging the jury and proceeding with a trial by judge alone was necessary to uphold the integrity of the judicial process. The court found that the defendant's counsel's closing address did indeed contain prejudicial content that could not be adequately addressed through a direction to the jury. The court deemed it in the interest of justice to discharge the jury to prevent any further prejudice to the plaintiff.

The final orders of the court were that the jury be discharged, and the trial be continued by the judge alone. The court emphasised that this decision was made to ensure that the plaintiff received a fair and just trial, free from any potential prejudice caused by the defendant's counsel's conduct.

Orders