Moran v Moran

[1999] NSWSC 1103

CITATION:	Moran v Moran [1999] NSWSC 1103
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20032/98
HEARING DATE(S):	01/11/1999; 10/11/1999
JUDGMENT DATE:	17 November 1999
PARTIES :	Kristina Moran (plaintiff) Douglas John Moran (1st defendant) Greta Richmond Moran (2nd defendant) Peter Moran (3rd defendant) Moran Health Care Group P/L (4th defendant) Doug Moran Holdings P/L (5th defendant)
JUDGMENT OF:	Hidden J at 1

COUNSEL :	P. Semmler QC (plaintiff) I. Harrison SC (defendants)
SOLICITORS:	Carroll & O'Dea (plaintiff) Clayton Utz (defendants)
CATCHWORDS:	PRACTICE & PROCEDURE - civil trial - different causes of action from same set of circumstances - whether they should be heard together - trial by jury
ACTS CITED:	Compensation to Relatives Act 1897
CASES CITED:	Pamula District Hospital v Herring (1988)14 NSWLR 387 Rouse v Shepherd [No 2] (1994) 35 NSWLR 277 Percy v General Motors Holden Pty Ltd [1975] 1 NSWLR 289
DECISION:	Actions to be tried together by jury

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J
Wednesday 17 November 1999

KRISTINA MORAN v DOUGLAS JOHN MORAN & ORS
No: 20032 of 1998

Reasons for judgment

1     HIS HONOUR: The plaintiff in these proceedings has brought two actions against the defendants, one under the Compensation to RelativesAct 1897 on behalf of herself and her two children, and the other in her own right seeking damages for nervous shock. The actions arise from the same set of circumstances. On 29 September 1999 I refused an application by the defendants for the trial of the proceedings under the Compensation to Relatives Act without a jury. I sketched the relevant background in the reasons which I delivered on that day, and there is no need to repeat it.

2     In the present application, the plaintiff seeks leave to file out of time a requisition for a jury in the trial of the action for nervous shock, together with a direction that the two actions be heard together. The defendants accept, in the light of my judgment of 29 September, that they could not contend that the trial of the action for nervous shock by jury, standing alone, would be unfair. Equally, senior counsel for the defendants realistically acknowledged the difficulty of opposing that mode of trial simply because the requisition for it would now be well out of time: see the judgment of Rath J in Percy v General Motors Holden Pty Ltd [1975] 1 NSWLR 289 at 295.

3     The defendants’ primary objection is to the two actions being heard together by the same jury. It was submitted that the multiple issues which would need to be determined in such a trial would place unreasonable demands upon a lay tribunal. In addition, it was argued that the emotional nature of the evidence bearing upon the claim for nervous shock might deflect the jury from a dispassionate examination of the evidence in the Compensation to Relatives claim. The best way to deal with the proceedings, it was said, would be for the trial judge in the Compensation to Relatives action to proceed to hear the nervous shock claim, sitting alone, immediately after the hearing of the first action. In that event, much of the evidence led before the jury in the first action could be received, by consent, at the hearing of the second.

4     There is no doubt that this would be a practical way of disposing of the proceedings as a whole. Nevertheless, I am conscious of the plaintiff’s prima facie entitlement to trial by jury of the nervous shock claim. In my earlier judgment I referred to the affirmation of this entitlement by Kirby P in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 399, 405. No-one suggested that the two actions should be tried separately by different juries. Clearly, such a course would be unduly expensive and time consuming. The question to be determined, then, is whether the trial of the two claims by the same jury would be unfair.

5     I think not. It is true that, although the major issue of causation of the death of the deceased is common to both actions, they involve different bases of liability and the award of damages in each case is governed by different considerations. However, there is no reason to think that a jury, properly instructed, could not cope with these issues. Not uncommonly, in criminal trials juries face a similar task when the indictment contains a number of counts.

6     Equally, I do not doubt the jury’s capacity to consider the issues dispassionately, unswayed by the emotion which might be engendered by evidence of the plaintiff’s reaction to her husband’s death. This also is a problem frequently encountered in criminal trials, particularly cases of homicide or serious violence. In some joint criminal trials, juries are called upon to distinguish between the cases of the various accused in circumstances where evidence admissible only against one of them could be prejudicial to another or others. These matters routinely are the subject of appropriate directions by the trial judge.

7     Accordingly, I am not persuaded that the trial by jury of the two actions together would be unfair. Given the amount of evidence which is common to them, there is every reason why they should be heard together. The plaintiff should have the orders she seeks, and I shall consult counsel about the precise form of them.

8     The defendants should pay the plaintiff’s costs of this motion. Senior counsel for the plaintiff sought costs on an indemnity basis, but I do not think that that is an appropriate course. Notwithstanding my decision of 29 September 1999, this motion raised new issues which I was able to resolve only after reflection, and the defendants’ opposition to the orders sought was not unreasonable: cf Rouse v Shepherd[No 2] (1994) 35 NSWLR 277.

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Last Modified: 12/02/1999