McKane v Conbar Transport Pty Ltd
[2022] VSC 724
•28 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WODONGA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2020 00301
| LYNETTE MARGARET MCKANE | Plaintiff |
| v | |
| CONBAR TRANSPORT PTY LTD (ABN 19 107 979 844) | First Defendant |
| FEDERATION COUNCIL (ABN 30762 048 084) | Second Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne (virtual hearing) |
DATE OF HEARING: | 24 November 2022 |
DATE OF RULING: | 28 November 2022 |
CASE MAY BE CITED AS: | McKane v Conbar Transport Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 724 |
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TORTS – Negligence – Pre-trial issues – Application to dispense with a jury – Application of Victorian and New South Wales laws differently against two defendants – Dispensation on the basis of legal complexity – Jury to decide the questions of liability – Quantum to be assessed by Judge alone – Halligan & Ors v Curtain & Anor [2013] VSC 124.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | B Dooley SC | Don Cameron & Associates |
| For the First Defendant | P Jens KC and M Clark | Lander & Rogers |
| For the Second Defendant | D McWilliams | Mills Oakley |
HER HONOUR:
Introduction
This ruling deals with the plaintiff’s application that the mode of trial be by judge alone. The plaintiff was injured while working for the first defendant in an incident occurring on 2 April 2015 at saleyards operated by the second defendant. The injury is alleged to have occurred when, in the course of loading sheep into a livestock truck, the plaintiff was struck by a large ewe and thrown to the ground suffering injury to her left arm and hand and other consequential injuries. Her damages claim is listed for hearing in the circuit at Wodonga commencing 28 November 2022. The first defendant has sought a trial before a jury in accordance with Order 47 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiff has made application to dispense with the jury. The second defendant supports the plaintiff’s application.
The parties and the claims made
The plaintiff’s employment with Conbar Transport is connected with Victoria and she is entitled to compensation under the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act). Against her employer, the claim for damages is impacted by Part 7 Division 1 of the WIRC Act which deals with choice of law in actions for damages against an employer such as the first defendant. Section 319 provides that:
(1)If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs –
(a)whether or not a claim for damages in respect of the injury can be made; and
(b)if it can be made, the determination of the claim.
The plaintiff has received compensation under the WIRC Act and has obtained a ‘serious injury certificate’, in order to maintain the proceeding.[1] She relies on a cause of action in negligence and a cause of action for breach of statutory duty arising from breaches of provisions of the Occupational Health and Safety Regulations2007 (Vic) (OHSR) against the employer. Those breaches are particularised as to manual handling duties and duties with respect to plant. By s 319(1)(b) of the WIRC Act her claim against the employer and any assessment of damages would therefore be determined under Victorian law.
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 325(2)(b)(i) and (ii).
The second defendant admits being an owner and occupier of the saleyards where the injury occurred. The saleyards are in Corowa, NSW.
The plaintiff pleads that, as the injuries occurred in NSW, the claim against the second defendant is governed by the laws of NSW including the Civil Liability Act2002 (NSW) (Civil Liability Act). There is no dispute that, against the second defendant, the substantive law of NSW applies to both liability and quantum. NSW law and Victorian law differ in their determination of which heads of damages are recoverable and how those damages are assessed.
The need to undertake different assessments of loss and damage
Under the Civil Liability Act, an assessment of damages for non-economic loss is calculated by reference to a maximum amount of $350,000 (as indexed) awarded only in the most extreme case. A determination must be made of the severity of the non-economic loss as a proportion of the most extreme case, and then damages are awarded by calculation of the percentages using a table contained in s 16 of the Civil Liability Act. If damages are to be awarded against the second defendant then, in order to apply the formula contained in the table, the Court would be required to answer the question: ‘What percentage does the plaintiff’s condition represent, compared to a most extreme case?’
As against the employer or an occupier under Victorian law, damages would be assessed by a jury or judge on the basis of fixing a figure that represents fair and reasonable compensation for the consequences of injuries for which the defendant’s negligence or breach of statutory duty was a cause.
Similarly NSW law and Victorian law differ on the availability of damages for gratuitous or attendant care, and on the approach to be taken to the calculation of economic loss. If both defendants are found liable the Court may be required to make two different assessments of damages under two different regimes.
The first defendant submits that a jury should determine questions of liability to pay damages but accepts that any assessment of damages would be a matter not determined by a jury. While the plaintiff submits that all questions should be determined by a judge, in the alternative she submits that any assessment of damages should not be made by the jury due to the complexity of that task. The second defendant makes similar submissions in support of this position. The second defendant also foreshadowed that a recent revision of the way the claim for special damages has been framed by amendments to the statement of claim, and further particulars of special damages, meant that it was not currently in a position to meet that newly framed claim.
Given these difficulties and the concession made by the first defendant that the task of assessing damages not be left to the jury, what remains for me to decide is whether questions of liability should be decided by a jury or by a judge alone.
Determining liability of the defendants
The plaintiff submits that the legal complexities arising from the different application of Victorian and NSW law will make the task of determining liability too complex for a jury. On questions of liability the jury would need to grapple with two legal regimes. The causes of action brought against the employer are in negligence and for breach of statutory duty, being breaches of the OHSR. Against the occupier only a claim in negligence is pursued.
However, against both defendants particulars of negligence include breaches of legislation and regulations. Against both defendants the claim is conventionally pleaded as general breaches of the Victorian Occupational Health and Safety Act and OHSR.[2] Against the second defendant only, the particulars of negligence set out the following:[3]
[2]Amended Statement of Claim dated 17 November 2022, [6(r)] as against the first defendant, and [6(h)] against the second defendant.
[3]Ibid [6(g)].
(g) Failing to comply with the provisions of the Work and Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulations 2011 (NSW) made thereunder;
Particulars of breaches under Work Health and Safety Act 2011(NSW)
(i) s19;
Primary duty of care to persons conducting a business or undertaking to ensure so far as reasonably practical the health and safety of other persons is not put at risk from the work that is carried out as part of the conduct of the business of undertaking.
(ii) s20;
Failed so far as reasonably practicable that the means of entering and exiting the workplace and anything arising from the workplace are without risks to the safety and health of any person
(iii) s21;
Failing to the person with the management or control of fixtures or fittings at a workplace to ensure so far as reasonably practicable that the fixtures and fittings are without risk to the health and safety of any person.
Particulars of breaches under the Work Health and Safety Regulations 2011 (NSW)
(iv) r 34
Failed to identify foreseeable hazard that could give rise to a risk of health and safety,
(v) r 35;
Failed to eliminate risk to health and safety so far as reasonably practical or in the alternative minimise those risks as reasonable practicable,
(vi) r 39;
Failed to provide information, training and instruction having regard to the nature of the work being carried out, the risks associated with the work and control measures implemented.
(vii) r 40
Failed to ensure as far as reasonably practicable that the layout for the workplace allows and the workplace is maintained so as to allow persons who enter and exit and move about without risk to health and safety and the work areas have space for work to be carried out without risk to health and safety.
The plaintiff submits that a jury would have to decide whether each of the NSW and Victorian provisions are engaged by the facts as found by them. In respect of the Victorian provisions the jury would also have to decide prior questions, whether they applied to a Victorian employer in respect of a NSW worksite controlled by another entity, and whether they applied to a NSW occupier.
The plaintiff and second defendant submit that this will lead to confusion in distinguishing the role that each of the Victorian and NSW legislative regimes have in informing negligence of each defendant.
The first defendant submits that the liability questions are orthodox questions determined by juries regularly and without difficulty in Victoria. Fundamentally this is, in the submission of the first defendant, a case against an employer and an occupier each of whom owe duties to the plaintiff at common law and under statute. Were the saleyards in Victoria, the occupier’s duty would be informed by the Wrongs Act 1958 (Vic) (Wrongs Act). The relevant provisions as to negligence in the Civil Liability Act[4] are in similar terms to those under the Wrongs Act. Therefore no difficulty arises in instructing a jury as to those matters.
[4]Wrongs Act 1958 (Vic) Part X – Negligence; Civil Liability Act 2002 (NSW) Part 1A Negligence.
Although there will be both NSW and Victorian occupational health and safety laws and regulations to consider, the position in relation to NSW law as particularised in the Amended Statement of Claim which are set out above, outlines duties to ensure as far as reasonably practical that various matters do not put the health and safety of other persons at risk and include the identification of hazards and to eliminate or minimise risk. Those matters are phrased in a manner similar to that used in Victorian legislation.
Analysis
In Victoria, subject to compliance with Order 47.02, a party who has elected trial by jury is entitled to that mode of trial unless the Court otherwise orders.[5] The Court is given a wide power to dispense with a jury where it forms the opinion that ‘the proceeding should not in all the circumstances be tried before a jury.[6]
[5]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.02(2).
[6]Ibid r 47.02(3).
In Birti & Anor v SPI Electricity & Anor,[7] J Forrest J set out the principles relevant to an application to dispense with a jury. They are:[8]
[7][2011] VSC 566.
[8]Ibid [15]
(a) Subject to compliance with the rules of the court, a party is entitled to seek trial by jury provided the claim is founded in contract or in tort.
(b) For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the court to the contrary). Part 6 of the Juries Act 2000provides the statutory basis for the conduct of the trial by jury.
(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial unless the court is persuaded to dispense with the jury.
(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.
(e) A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.
(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.
(g) The onus of proof in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.
(h) Even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time.
(i) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.
(j) Subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
(i) the complexity of the factual matters that the jury will need to consider;
(ii) the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;
(iii) the complexity of the jury’s task in relation to the assessment of damages;
(iv) the potential duration of the trial (although this, of itself, could never be the determining factor); and
(v) the stage at which the proceeding or trial has reached.
(k) 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.
To these considerations should be added the Court’s obligation to give effect to the overarching purpose identified in the Civil Procedure Act 2010 (Vic). It is for the plaintiff and second defendant to persuade the Court that there is a special reason or good cause to deprive the first defendant of its right to trial by jury.
The crux of this application is the complexity of the legal issues arising because of the two defendants and two legislative regimes that are relevant. The argument focused on the considerations identified above in paragraph (j)(ii), in the context particularly of the principles set out in (f) and (g) above.
I accept that where a jury may have to assess damages under two different legal frameworks – the Victorian law in respect of the employer and the NSW law with respect to the occupier – that these are tasks that should not be performed by a jury. In Halligan & Ors v Curtain & Anor,[9] J Forrest J noted that the method of assessment in the Civil Liability Act was introduced in a jurisdiction where such assessments are made by judges with a familiarity as to ‘the range of damages assessments from catastrophic to trivial’. The fixing of a percentage from which damages are calculated alone would be a difficult task for a jury and in that case his Honour ruled that the assessment of damages, if necessary be undertaken by judge alone. In this case it would be an impossible task to undertake alongside a second assessment according to Victorian law. It is clearly appropriate that the task of assessing damages not be left with a jury.
[9] [2013] VSC 124.
As to liability, the first defendant relies on Halligan to support the submission that questions of liability should remain with the jury. The plaintiff and second defendant seek to distinguish Halligan on the basis that on questions of liability the jury would only have to consider NSW law but in this case they would have to apply both NSW and Victorian law.
The second defendant in particular also referred to Ford v Elmore Haulage & Anor[10] (‘Ford’) in support of a submission that the application of NSW regulations to a Victorian employer was considered in a judge alone trial. In Ford however, the employer had admitted duty and breach and liability questions for consideration including any breach of the NSW Regulations were limited to those affecting the NSW occupier. It was an orthodox and uncomplicated application of NSW law.
[10][2019] VSC 58.
I accept that a jury would have to understand and apply different principles of law to the liability of the employer and to the liability of the occupier because different statutory duties and obligations are imposed on each. The fact that those differences arise in this case because of application of NSW law or Victorian law does not in my view make the task so much more difficult that it ought deprive the first defendant of its right to trial by jury on liability.
The claims against the first defendant are conventional and straightforward and the task is one performed regularly and efficiently by juries assisted by the instruction of a trial judge. The question of the application of the OHSR to the employer in given factual circumstances is an unexceptional jury question either as to negligence or as a stand-alone cause of action. Any complication on questions of liability arise only because a different legal test applies to the second defendant. The Civil Liability Act provisions going to negligence and to causation that are applicable to the second defendant are broadly similar to those in the Wrongs Act applying to Victorian occupiers among others. They are frequently applied by juries to the evidence presented to them. I see no good reason why a jury could not perform that task when the legal principles are explained to them.
The remaining issue giving rise to legal complexity is that of the two statutory regimes for workplace safety that are relied on by the plaintiff as a means of establishing negligence of the second defendant. To the extent that the Victorian regime might be applicable to a NSW occupier, it is not at present clear how the plaintiff intends to rely on the Victorian provisions or what they might add to the particulars relied on in the equivalent NSW statutory regime. Juries are regularly charged with explanations as to the difference between using statutory breaches to inform findings of negligence and an explanation of a breach of statutory duty as an independent cause of action. On present information it seems to me that if there is any additional complexity in the information to be given to the jury about the statutory workplace safety obligations imposed on the defendants, because more than one statutory regime might be implicated, that is a matter that can be canvassed at the close of the evidence and prior to final address and charge.
There is nothing factually complex identified in the circumstances of injury. The plaintiff was knocked and suffered injury in a fall. The systems of the employer and the state of the premises, in particular the layout and design of the yard and loading facilities, are the subject of the factual dispute.
There are no other legal issues remaining that may have presented obstacles to a jury determination such as a dispute as to the applicable limitation period.
In all the circumstances I am not persuaded that the complexity of the legal issues that will need to be considered on liability are such that they give rise to a special reason, or good cause so as to deprive the first defendant of its entitlement to a trial by jury.
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