Love v TAC
[2017] VSC 491
•23 August 2017
| 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 had it been anticipated that the jury would be invited to find that the plaintiff was an unreliable witness based on his pre-existing psychiatric condition, their tendering would have been objected to.
Counsel for the plaintiff accepted that it was agreed that the plaintiff’s pre-existing psychiatric condition was relevant but not for the purpose of his credit and that given the discussion at the beginning of the trial, the defendant should not now be allowed to use such evidence for this purpose. It was submitted that the evidence was relevant and permissible in relation to pre-existing conditions and general damages.
The defendant’s counsel submitted that there was significant evidence in this case about the plaintiff’s pre-existing psychiatric condition and its effects on him and his memory. Defendant’s counsel said there was no ruling made in relation to how the evidence could be used and the Court did not limit its use to damages. It was submitted in such circumstances the evidence could be used at large by the defendant. It was submitted that from the outset it was clear how the defendant would use the evidence in relation to the plaintiff’s pre-existing psychiatric condition. The defendant submitted that at any stage the plaintiff could have objected to the evidence in cross-examination on these matters and that this was not done. Further, it was submitted that the plaintiff’s counsel led evidence about the plaintiff’s pre-exiting condition and its effects on him, and whether he still suffered from the psychiatric conditions, and in particular the blackouts.
The defendant also noted that Dr Serry whose report was read into evidence and relied upon by the plaintiff, squarely raised the issue of the plaintiff’s pre-existing psychiatric condition and that it was ongoing. It was submitted that if the Court was against the defendant, then the plaintiff was yet to close his case and the Court could make any appropriate comments in the charge to the jury.
The legal principles
The relevant principles in relation to discharging a jury and the trial continuing was set out by Kyrou AJA in Reza v Summerhill Orchards Ltd.[1]
[1](2013) 37 VR 204.
His Honour said:[2]
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 will 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.
… 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. [Footnotes and citations of authority omitted.][3]
[2]Ibid, 2-12, 46, 213-14, [50]-[51].
[3]This passage was cited with approval by the Court of Appeal (Warren CJ, Tate and Whelan JJA) in Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd & Anor (2014) 42 VR 236, 273–3 [199].
Determination
When this case commenced some eight days ago, counsel for the plaintiff raised at the very outset the issue about the plaintiff’s past psychiatric condition and that if the defendant wanted to attack the plaintiff’s credit on the basis of his past psychiatric condition and whether it had some bearing on his memory or functioning, it should be done on the basis of medical expert evidence. It was submitted that if the defendant was going to suggest that the plaintiff’s memory at the time of the motor vehicle accident on 15 August 2011 was affected by his pre-existing psychiatric condition, the defendant needed medical evidence to make the nexus between his psychiatric condition and his memory at the time of the relevant incident.
Counsel for the defendant at the commencement of the trial said that there was nothing in the pleadings or materials to suggest that the defendant would argue that at the time of the motor vehicle accident, the plaintiff had a medical condition which affected his memory.[4]
[4]T4, LL28-31; T5, LL1-4.
Counsel for the defendant submitted that it was a matter of fact that the plaintiff’s drug use and psychiatric condition and ill health, including blackouts, affected him and that his memory was affected.[5] The defendant’s counsel submitted that the plaintiff’s health before the said motor vehicle accident and at the time of the motor vehicle accident were pertinent issues and that the defendant was entitled to cross-examine the plaintiff on these matters, especially where there were varying versions from the plaintiff about the circumstances of the accident.[6]
[5]T5, LL12-13.
[6]T5, LL14-27.
I said at the beginning of this trial in the discussion with counsel that the defendant could not simply assert that the plaintiff’s pre-existing psychiatric condition, including the blackouts he experienced, and what impact the blackouts may have had on the plaintiff’s memory and ability to recall the motor vehicle accident were matters that required some medical expert evidence to comment on the nexus. I considered that it would be unfair to simply cross-examine the plaintiff on the issue of his memory and any nexus to his pre-existing psychiatric condition in the absence of medical expert evidence.
I considered that it was open to the defendant to cross-examine the plaintiff on matters relating to his pre-existing psychiatric condition as it would be relevant as to what his condition was at the time of the accident and how the pre-existing condition affected him today in terms of assessing general damages.[7] I specifically said that the plaintiff’s credit was in issue but that his pre-existing psychiatric condition was relevant in this case in relation to an assessment of damages and that if the defendant put the matter any higher than this, there would be a difficulty.[8]
[7]T8, LL26-31; T9, LL1-8.
[8]T8, LL26-27.
I raised the possibility that if the defendant went beyond this, the jury could be discharged. I suggested that the defendant needs to tread carefully on the issue of the plaintiff’s past psychiatric condition and the relevance of that evidence.[9]
[9]T10, LL21-23.
In closing address the defendant raised as the first issue the plaintiff’s credit. It was submitted that the plaintiff was unreliable due to a number of factors, including his health in the six months prior to this accident, and specifically his pre-existing psychiatric health which had been very poor for a very long time.[10] In particular, the jury was reminded of the plaintiff’s blackouts and how they affected his memory.[11]
[10]T597, LL1-5.
[11]T597, LL17-31.
The defendant’s counsel submitted that there is no medical evidence before the Court as to whether the plaintiff’s blackouts stopped after his discharge from the psychiatric units in February and April 2011. It was put to the jury that there was no evidence from the plaintiff’s former treating general practitioner, Dr McIntosh, as to whether the plaintiff continued to have problems with his blackouts or not. It was submitted that as a matter of law, ‘you can say – we submit to you that you can assume or infer that his [Dr McIntosh’s] evidence would not have assisted the plaintiff in this regard’.[12]
[12]T598, LL11-15.
It was also put to the jury that the plaintiff’s previous general practitioner Dr Sta Ana’s records were silent on this point as to whether the blackouts continued after his discharge from the psychiatric unit in April 2011. The defendant’s counsel referred to Dr Sta Ana’s records that were tendered into evidence and that there was a reference to the plaintiff seeing a psychiatrist after the motor vehicle accident, and questioned what treatment he was receiving from the psychiatrist, and importantly that there was no evidence as to who that psychiatrist was or what treatment the plaintiff received.[13]
[13]T598, LL5-26.
The defendant’s counsel submitted that in circumstances where the plaintiff had a longstanding problem with blackouts and their effect including dizziness, loss of consciousness, the number of blackouts and that in any given day in February 2011 he had six to nine hours unaccounted for due to the blackouts – that the jury only had the plaintiff’s evidence that the blackouts stopped. Counsel submitted that ‘you [the jury] know from the plaintiff’s own evidence that these blackouts were a longstanding problem. In the 2009 hospital discharge that I’ve just tendered to you, D3, they refer to the blackouts. Exhibit D1, there’s the onset of collapsing in 2007 and when you go to that at page 4, you’ll see there’s a reference to Dr McIntosh to dizziness and loss of consciousness. This has been a longstanding problem for the plaintiff and we say that on the evidence it’s not – you only had his evidence to say that those blackouts stopped. Now, you might accept that but we say that there’s other evidence that you might have expected to have been called that would’ve assisted you, and that has not been made available’.[14]
[14]T598, LL27-31; T599, LL1-8.
In my view, the prejudice caused by the closing address was significant.
I consider there could not have been any doubt in the defendant’s counsel’s mind given the discussion at the outset of this trial that I considered the use of any evidence about the plaintiff’s pre-existing psychiatric condition and blackouts and their effect on his memory at the time of the accident were not relevant and could only be permissible if there was appropriate expert medical evidence on this point. Whether it was a formal ruling or not, it was a clear direction to the parties at the beginning of this trial. The trial, to my mind, and the plaintiff’s counsel proceeded on this basis.
There was significant evidence about the plaintiff’s pre-existing psychiatric condition and the blackouts. It was admissible on the basis that it could be used for the purpose of establishing any pre-existing conditions and their relevance to damages. Dr Serry’s report makes no mention of the plaintiff’s condition and its impact on his memory or reliability as a historian to recollect events.
I do not consider the defendant was at large to use the evidence in the way it has been used in closing address given the caution I gave at the outset of this trial.
If the defendant’s closing address had been confined to the issue of the plaintiff’s pre-existing psychiatric condition and what if any effect it had on his memory at the time of the accident, I consider it may have been cured by a very clear direction in my charge by saying, for example, that there is no medical evidence before the jury about the effects of the plaintiff’s blackouts or pre-existing psychiatric condition, on his memory as at August 2011 or thereafter. I consider it would have been appropriate to charge the jury in such terms and that I would have been obliged to point out that speculation of that kind should not play any part in the jury’s deliberation.[15]
[15]R v Boyle [2009] VSCA 289.
The real vice, however, in the defendant’s closing address is the reference to the plaintiff’s general practitioners, Dr McIntosh and Dr Sta Ana and the reference in Dr Sta Ana’s records to the psychiatrist the plaintiff was seeing sometime after the motor vehicle accident and the submission as to the failure to call those witnesses who could have commented on whether the plaintiff was still having blackouts after the discharge from the psychiatric unit in April 2011.
The strong inference available to the jury is that the blackouts affected the plaintiff’s memory and therefore if he was having them in August 2011, his ability to recall the events was effected and makes him an unreliable witness. I cautioned the defendant that the issue of the effects of the plaintiff’s pre-existing psychiatric condition and specifically the blackouts on his memory, could only be dealt with by way of medical evidence. I said that the plaintiff’s pre-existing psychiatric condition and blackouts were admissible to the extent that they were relevant to damages.
In such circumstances, the defendant had an obligation to clarify or make it clear it would close the case in the way it was done. I do not suggest that the failure to do so was in deliberate contravention of my comments and caution.
It is understandable that in those circumstances the plaintiff did not call any medical expert about the effects of his psychiatric condition on his memory at the time of the accident or object to evidence in relation to his memory and pre-existing psychiatric condition. The plaintiff has lost the opportunity at trial to put medical evidence before the jury. I accept that the plaintiff’s case and the evidence called was not done in contemplation that it would be used by the defendant to attack the plaintiff’s memory and reliability connected to his pre-existing psychiatric condition.
The prejudice in this case is two-fold to the plaintiff. Firstly, the very inference that the jury may make that the plaintiff’s blackouts affected his memory at the time of the motor vehicle accident and the absence of any medical expert to support this and secondly, that on the basis of the failure to call Dr McIntosh, Dr Sta Ana and the psychiatrist, the jury may infer that there may be medical evidence available to support the inference; that is psychiatric condition and blackouts were continuing at the time of the accident and therefore affected his memory and ability to recall the incidents in August 2011 and as such, the jury may conclude the plaintiff is an unreliable witness.
As I said, I contemplated what direction might be given to the jury. I take into account the common sense of juries and the usual diligence in following directions. My observations of this particular jury was, so far as I could tell, that they were a mature and intelligent group of people. Nevertheless, the combination of unfortunate circumstances was such that I could not be confident that the stain of the allegation that there was evidence that the plaintiff’s blackouts were continuing at the relevant time in August 2011 and the effect of those blackouts on his memory and therefore his credit, could be sufficiently erased to ensure a fair trial for the plaintiff before the jury.
In such circumstances, I consider regrettably that there is no option but to discharge this jury and to continue with this trial as a judge alone.
In that regard, I refer to the Court of Appeal’s decision in Trevor Roller Shutter Services Pty Ltd v Crowe[16] where the Court of Appeal considered the question of dispensing with the jury. In Halligan & Ors v Curtain & Ors[17] J Forrest J summarised the relevant principles to such an application. I will not repeat them in their entirety save to say that his Honour noted that:
[16][2011] VR 249.
[17][2013] VSC 124.
(a)a court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so;
(b)the considerations which may influence a court to dispense with a jury trial are unfettered;
(c)the discretion may be exercised where it is warranted by the dictates of justice;
(d)subject to the statement of general principle set out …, in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
·the complexity of the factual matters that the jury will need to consider;
·the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;
·the complexity of the jury’s task in relation to the assessment of damages;
·the potential duration of the trial (although this, of itself, could never be the determining factor); and
·the stage at which the proceeding or trial has reached; and
(e)a decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law. (footnotes omitted)
I consider that given the stage of the trial that has been reached, the fact that this matter is listed in the civil circuits in the Latrobe Valley and therefore it will not be listed again until October 2017 or even February 2018; the obligations under the Civil Procedure Act (s 7) including cost effectiveness, efficient disposition of a trial, that it would not be in the interests of justice to re-set the trial before judge and jury and I should continue to hear this matter as judge alone.
I will hear the parties in relation to that.
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