Mould v ABM Plastics Pty Ltd (Ruling 1)
[2010] VCC 1474
•28 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-05651
| Sean Robert Mould | Plaintiff |
| v | |
| ABM Plastics Pty Ltd | Defendant |
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| JUDGE: | S Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 – 31 August and 1 – 8 September 2010 |
| DATE OF RULING: | 28 October 2010 |
| CASE MAY BE CITED AS: | Mould v ABM Plastics Pty Ltd (Ruling 1) |
| MEDIUM NEUTRAL | |
| CITATION: | [2010] VCC 1474 |
| REASONS FOR RULING |
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Catchwords: TORTS- DAMAGES- jury trial - plaintiff’s application to discharge jury after
final address by defendant’s counsel
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Hore-Lacy S.C | Holding Redlich |
| with Mr A. Pillay | ||
| For the First Defendant | Mr R. Middleton S.C. | Wisewould Mahony |
| with Ms M. Tsikaris |
HER HONOUR:
1 Following the address of Mr Middleton on behalf of the defendant, Mr Hore- Lacy made an application for discharge of the jury and for the case to be heard as a cause. This was the second application for discharge of the jury made on behalf of the plaintiff.
2 I heard submissions from the parties and ruled that I considered it appropriate in the interests of justice to discharge the jury and that I would give full reasons for that ruling in due course. After hearing further submissions from the parties, including a submission from Mr Middleton that I reconsider my ruling on the discharge application, which I declined to do, I then proceeded to hear the matter as a cause.
3 Mr Hore-Lacy made closing submissions and I gave Mr Middleton the opportunity to address me in relation to any matters he did not address on but which would have been the subject of submissions had I been hearing the matter as a cause.
The first application for discharge of the jury
4 The first was made on 31 August 2010 in the context of an argument about the admissibility of the serious injury certificate granted 13 August 2008 and the worker’s claim for impairment benefits documents (in particular the letter of acceptance of liability dated 12 July 2007 in which the Authority accepted liability for the claimed injuries being left hip and scarring, back and psychiatric
condition).
5 Mr Hore-Lacy argued that a number of matters had been put to witnesses by Mr Middleton which were contrary to the admissions contained in the certificate and in the letter accepting liability for the claim. He argued that the defendant was estopped from doing so by those documents (which were not yet in evidence although Mr Hore-Lacy wished to tender them). He also submitted that there were complex factual issues to be determined, including whether or not the plaintiff suffered pre-existing arthritis at the time of the incident, whether or not the injury was caused by lifting a box or kicking, and that the jury should be discharged.
6 The application was resisted by the defendant on the basis that the jury was well placed to determine whether the plaintiff lifted or kicked a box, whether he had groin pain for twelve months prior to the incident, and how the
incapacity associated with the earlier hand injury would impact on damages. It
was also submitted that the documents relating to the admission of liability
should not be admitted because a fairly lengthy explanation of those
documents and, therefore, of the accident compensation legislative scheme
would be necessary. This would unnecessarily divert the jury’s attention awayfrom the issues to be determined, and, on the authorities was undesirable[1].[1] Baulch v Lyndoch Warrnambool Inc. [2010] VSCA 30.
7 I ruled that I would not discharge the jury at that stage, because the medical evidence at that point did not appear unduly complex. I said I would rule separately on the admissibility of the documents sought to be tendered by Mr Hore-Lacy. On 6 September 2010 I ruled that the documents were not to be put into evidence.
The second application for discharge of the jury
8 Mr Hore-Lacy made his second application for discharge of the jury on 7 September 2010 on a number of grounds. Two of the grounds related to matters arising during the trial which were not the subject of Mr Middleton’s
address. The remaining matters arose directly from Mr Middleton’s address. In
response to Mr Hore-Lacy’s application, Mr Middleton made a general
submission that his address contained comments and observations which the
defendant thought were relevant but which could be accepted or rejected in
part or full by the jury. He submitted that Mr Hore-Lacy could put his counter-
arguments to the jury and if I felt that some of Mr Middleton’s remarks did not
reflect the evidence, I could give directions to that effect. He also submitted
that having regard to the defendant’s election of trial by jury, a discharge of
the jury would involve a miscarriage of justice for the defendant.Grounds relating to matters arising during trial Firstly, during the cross-examination of the plaintiff’s safety expert, Mr Dohrmann, on day seven[2] of the trial, Mr Middleton took the expert through all the documents listed at the commencement of his report. One of these was a draft affidavit of the plaintiff which was not in evidence. Mr Middleton put part of the history taken from that draft affidavit to the witness in the following exchange in cross-examination:
[2] 1 September 2010.
And am I correct in understanding that part of the history he gave you was that at the time of that incident he felt a crack in the hip?---Yes.
He hasn't given any such evidence to this court, but you've got that from him direct?---No, I took it from his affidavit.
And that at the time of the incident he felt pain in both his left hip and groin?---
Yes.
Again, if there is evidence that there was no complaint about his hip at the time, that would be inconsistent with your information wouldn't it?---It would. Again, it was from the affidavit, in case you needed to know.[3]
[3] Transcript [T] 627.
9 The following day, Mr Hore-Lacy vigorously objected to this material being put to the witness on the basis that it had not been put to the plaintiff, or to other medical witnesses who had received a history similar to that given by the plaintiff in his evidence supported him, and on the basis that it came from material not in evidence which had not been proved or adopted by the plaintiff. He submitted that he sought an immediate, strong direction to the jury to the effect that that evidence should not have been elicited without giving the plaintiff a chance to respond. Mr Hore-Lacy submitted that the defendant was simply attempting to discredit the plaintiff.
10 Mr Middleton submitted that there was no need for any direction. He submitted that he was entitled to demonstrated that Mr Dohrmann relied on a particular description of the facts for the opinion expressed in his report and that his opinion remained the same even though he was given a different set of facts by Mr Hore-Lacy based on the evidence of the plaintiff.
11 Mr Hore-Lacy submitted that Mr Middleton had overnight changed the basis of how he proposed to go to the jury on this point and was now proposing to attack Mr Dohrmann’s opinion. Mr Hore-Lacy renewed his application for a direction that the jury disregard the material referred to from the plaintiff’s draft affidavit because the “crack in the hip” did not form part of the plaintiff’s evidence in this trial and because the plaintiff had not been given the opportunity to refute it. He also submitted that it would be unfair for this material to be used as an attack on Mr Dohrmann’s opinion because there was no sensible link between whether or not the plaintiff heard a “crack in the hip” and his opinion as to the ergonomic mechanism of the injury or the measures which could have been taken by the defendant to avoid the risk of injury to the plaintiff.
12 I declined to give any direction[4] on the basis that to draw attention to the material might create an impression adverse to the plaintiff that could not be cured by a direction. I indicated that I thought it prudent to wait until the close of evidence and to get an indication from Mr Middleton as to how he proposed to use this material in his address.
[4] T708.
13 Ultimately, Mr Middleton did not mention the affidavit in his address, nor did about the measures which a reasonable employer would take to avoid the risk of injury to employees.[5]
[5] T953.
14 Secondly, on a number of occasions while cross-examining the plaintiff’s expert witnesses (Mr Patel and Mr Doig) Mr Middleton referred to the opinion of Mr Dooley, whom he repeatedly said would give evidence.[6] Mr Middleton did not mention Mr Dooley specifically in his opening address, although it appears that he was referring to that doctor when he told the jury that he would be calling Dr Sandhu, Mr Dunin, Mr Marsh, Dr Papasava, Paul Bryan and Steve Angelis and “There may be that we call someone else” [sic].[7] At the conclusion of Mr Middleton’s opening address, in the absence of the jury, Mr Hore-Lacy inquired about Mr Dooley.[8] Mr Middleton indicated that there were problems relating to Mr Dooley and he was uncertain how they would resolve. Mr Middleton said nothing more about Mr Dooley’s reports or attendance but did not mention Mr Dooley when leading his expert witnesses, Dr Sandhu and Mr Dunin. Prior to cross-examining Mr Dunin, Mr Hore-Lacy inquired, in the absence of the jury, whether Mr Dooley would be giving evidence.[9] Mr Middleton said that his instructors were endeavouring to arrange for him to give evidence by video-link but, if by Monday they were unable to produce him, the defendant would apply to have his report read to the jury. If this request was refused, Mr Middleton said he would have to wear the consequences of his earlier puttage of Mr Dooley’s opinion to Mr Patel and Mr Doig.
[6] T 292-300, 320, 325-326.
[7] T 723.
[8] T723-724.
[9] T835-836.
15 In cross-examination of Mr Dunin, Mr Hore-Lacy asked him about the history given to him by the plaintiff and whether it was inconsistent with the history taken by Mr Dooley.[10]
[10] T842.
16 On Monday 6 September 2010, Mr Middleton indicated that Mr Dooley was overseas and could not be contacted and that the defendant would accept any criticism flowing from his unavailability.[11] Later that day, Mr Middleton explained that while his instructors had been told in a timely fashion that Mr Dooley would be overseas at the time of the trial, Mr Middleton believed that he would be available to give evidence by video-link, and no adjournment of the trial was sought. However, Mr Dooley’s office had lost contact with him, and thus Mr Middleton’s belief that he would be available had turned out to be mistaken. Mr Middleton applied for leave to read his reports, and submitted that if that leave was refused, it would be sufficient for me to direct the jury to disregard any references to Mr Dooley’s reports or opinion.
[11] T862, 914.
17 It should be noted that Mr Middleton did not mention Mr Dooley at all in his final address. After his address, Mr Hore-Lacy took exception to a number of matters in the address and said he wanted time to consider the transcript references in relation to Mr Dooley. He also sought an admission by the defendant that the plaintiff saw Mr Dooley on two occasions for the purpose of the preparation of his report.[12] Mr Middleton objected to Mr Hore-Lacy retrospectively seeking such admissions[13] Mr Middleton said that as he made no reference to Mr Dooley in his final address it would be sufficient for me to tell the jury to disregard anything said about Mr Dooley because he was not in evidence before the jury. There followed this exchange:
[12] T983.
[13] T990.
MR MIDDLETON: …But if my learned friend wasn't going to permit the defendant to read Mr Dooley, I ask rhetorically why it was that he then cross-examined Mr Dunin about the contents of Mr Dooley's report about the history that he obtained if he was determined not to have Mr Dooley before the court.
MR HORE-LACY: You were going to call him.
MR MIDDLETON: No, at that point I'd identified the difficulties we had with Mr
Dooley and - - -
HER HONOUR: Well, I'm not sure that can be laid at the plaintiff's feet.
MR MIDDLETON: No, I'm not saying - - -
HER HONOUR: I'm sure at the end of the day, subject to your indication which they are waiting for that led him perhaps to err on the side of caution because what would have been the case if you had called him and he hadn't done the puttage of the - - -
MR MIDDLETON: Well, might be a stronger position to resist the read of Mr then we'd seek to lead to reading. If it was resisted then we'd probably not be able to do much about it. That's what I believe I said at that point in time before Mr Dunin gave evidence.[14]
Dooley. I had clearly indicated the difficulties we were having and I had indicated
[14] T991.
18
message to the jury from the repeated references to Mr Dooley’s opinion,
which was not in evidence, was that Mr Dooley believed that the plaintiff had
significant osteoarthritis in the left hip before the incident on 2 September
2002. Mr Hore-Lacy submitted that these references would prejudice the
plaintiff’s case in that they gave weight to the defendant’s case that no injury
In his application to discharge the jury, Mr Hore-Lacy submitted that the Mr Middleton’s address to Dr Sandhu’s evidence and Mr Middleton’s comments, including “What's plain from Dr Sandhu's record - and he told you that he was a good note taker - is there's no record of the plaintiff relating his pain at that time to his work”[15] and at line 23, “What’s clear is there’s no relationship made to work on 2nd or 4th September 2003”. [16] He said that these references in combination with the repeated references to Mr Dooley’s opinion created a prejudice which could not be cured by a direction that Mr Dooley’s opinion be ignored by the jury.
19
Mr Middleton submitted that the references to Mr Dooley’s opinion did not have serious consequences for the plaintiff because they occurred some ten days earlier, on 30 August 2010:
[15] T959.
[16] T959.
And the other thing to remember of course, Your Honour, it was said on 30 August, now ten days ago, and it's not going to loom as an issue of great moment in this case in view of the volumes of evidence that we have had in the case already.[17]
[17] T1015.
20 Moreover, he submitted that there were three doctors in evidence (Mr Byrne, Mr Grossbard and Mr Dunin) who took the same view as Mr Dooley in concluding that there was pre-existing osteoarthritis of the hip. Mr Middleton asserted that Mr Patel “virtually embraced” the history given by the plaintiff to Mr Dooley, when he said:
…which is pretty much what I - - -Yes - - -?---Had suspect - you know, which is
what I hypothesised that when getting up, trying to get up, leverage, the hip
hyper-extended while he was getting up from the crouched position…[18]
[18] T292-293.
21 Finally, he submitted, many other doctors had been mentioned at the trial but had not been called, such as Mr Khan and Dr Stockman, and it would be simple for me to give an O’Donnell v Reichard[19] direction to the jury in this regard. In addition, Mr Middleton submitted that Mr Hore-Lacy had cross- examined Mr Dunin about Mr Dooley’s opinion and could not therefore “cry wolf” about this material being before the jury.
[19] 1975 VR 916
22 Mr Hore-Lacy responded that he had cross-examined Mr Dunin before knowing that Mr Dooley could not in fact be reached overseas and would not be giving evidence. He submitted that the direction proposed by Mr Middleton was inappropriate in the circumstances where a jury has been told that a witness will give evidence and then does not. [20]
Matters arising from the address of Mr Middleton.
[20] T1023-1024.
23 The first of these was the way in which Mr Middleton dealt with the evidence of Mr Marsh, the occupational therapist:
He was the subject of a worksite assessment by Mr Marsh and we suggest to you that Mr Marsh's evidence is critically important in this case for what he was doing and for what it reveals about the plaintiff's circumstances at that time.
First of all, Mr Marsh from Aitken Ergonomics covers the period from
approximately January 2002 until early 2004. Secondly, he had made a worksite
assessment of the plaintiff's specific duties as at 13 March 2002. He continued
to monitor them from that point in time right up until the completion of his contract
in I think early 2002.
Mr Marsh's assessment you might think is critical to this suggestion that the
defendant was in breach of the Occupational Health and Safety Manual Handling
Regulations 1999. Specifically I think the regulations which are relied upon being
regulations 12, 13, 14 and 15. Now, you have that document, which is Exhibit H.
It's not my intention to read it to you; it's a fairly detailed document. You're
entitled to take it into the jury room and look at it and discuss it.
And as I understand the case, regulations 12 to 15 are relied upon. What we say
to you in response to that is that, first of all, the suggestion that the defendant
didn't conduct an audit or a risk assessment is answered by Mr Marsh's worksite
assessment. He came to the worksite to conduct a worksite assessment in
relation to Mr Mould's particular duties, to identify the tasks that he was doing
and to determine whether or not they were within the capacity of him, having
regard to the medical restrictions placed upon him by the plaintiff's treating
general practitioner Dr Teo.
If it is not a risk assessment, a worksite assessment or an audit then what is, we ask in a rhetorical sense. It's not like the one referred to I think by Mr Buswell or Mr Towart that came every six months or so and generally had a look at the
workplace and determined in a general way whether there were specific lifting period of two years and it couldn't be more relevant to the plaintiff, we would suggest.
difficulties or risks associated with the general tenor of the workplace for the
whole of the staff. Mr Marsh's assessment is one for the plaintiff and his specific
tasks. It's unique. And we suggest it's even better than those general sort that
And when you look at Mr Marsh's evidence and you look to see what he was dealing with in terms of Mr Mould's duties, if there was an opportunity in those two years for him to complain about this task that he says caused his injury, then why didn't he do it? Why didn't he make this complaint? And if his duties were so onerous, in the manner that Mr Angelis was cross-examined about today, why didn't he make these complaints to Mr Marsh who was there for the specific purpose of assessing the tasks that the plaintiff had to perform in his compromised state with his hand injury?[21]
[21] T945-947.
24 Mr Middleton continued stating:
Now, that's a description from the workplace assessor in March of 2002. In no way in that period, or even subsequently, did the plaintiff identify the task that he said was onerous in respect of the polymer sheets and the wayward box of sheets as a task (a) that he had to perform or which caused him trouble. And if he didn't do that, you'd have to wonder why the employer would be conscious of that being one of his tasks, particularly in the face of the medical certificate of Dr Teo, which is Exhibit 1.[22]
[22] T949.
25 Mr Middleton said:
We say Mr Marsh's evidence is very important indeed because it gives a perspective, an objective one, about the significance then of the plaintiff's hand injury and is a useful comparison to the symptoms he might have been suffering in respect to his groin or hip injury and even at this point in time in June 2003 the labral tear hadn't been diagnosed, hadn't been operated upon, but you might think in the scheme of things it was not a significant and traumatic event by comparison to the hand injury and not the sort of event that Dr Dennerstein relied upon as perpetuating the plaintiff's post-traumatic stress disorder symptoms and she gave evidence of her consultation with the plaintiff in 2009.[23]
[23] T950.
26 Later at T952, he said:
The bottom line is this was not one of the plaintiff's tasks or duties, it was not one that he had on his list of tasks or duties as conveyed to Mr Marsh.[24]
[24] T952.
27 Furthermore, Mr Middleton said:
We say to you that those regulations which are relied upon by the plaintiff in this case and require the plaintiff to bring a consulting engineer and Mr Dohrmann to court to tell you precisely what we know already that they apply in cases such as this, we say it's one thing to rely upon them, but it's another thing to establish a
breach of the regulations in the face of what is clearly an assessment, a risk
assessment of Mr Mould's duties of work performed by Mr Marsh.
We say to you in that context the defendant has not only acted reasonably, it's acted responsibly and has put in a place a proper assessment for this plaintiff and his very particular tasks and duties in his compromised position by reason of
his hand.
This of course is a matter entirely for you and we say this valuable insight by Mr uniquely dealt with by the defendant, ABM Plastics, during 2002 and that continued to exist after 2 September 2002. He had his own personal audit, own risk assessment of his duties and if you think that is so then we urge you to the view that the answer to Question 1 is a no.[25]
Marsh as to what was going on at this critical time is a complete answer to the
particulars of negligence that the plaintiff relies upon and is a complete answer to
any breach of regulations relied upon and for that matter any criticism that
[25] T953.
28 Mr Middleton said that moving the boxes “was not part of his modified duties as assessed by Mr Marsh”.[26]
[26] T966.
29 Mr Middleton said that the plaintiff “knowingly worked against this certificate and against what was his designated duties described by Mr Marsh”.[27]
[27] T967.
30 After Mr Middleton’s address, Mr Hore-Lacy submitted that there was:
…absolutely no evidence that a worksite assessment was made pursuant to the
regulations to suggest that what Mr Marsh said was concerning his hand and
being proper duties for the hand constituted some workplace assessment as far
as lifting practices is ridiculous. And not only that, it's got to be conducted by the
employer not by some consultant in relation to a particular injury. [28]
[28] T984.
31 Mr Middleton submitted that the question of whether or not this was a proper risk assessment pursuant to the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the 1999 Regulations”) was a matter for the jury.
32 Mr Hore-Lacy further submitted that it was a matter of law and said he had no indication from any of the evidence that the “limited evidence of Mr Marsh was going to be evidence of a risk assessment.”[29] Mr Hore-Lacy referred to the evidence of Mr Angelis, who said that there was an engineer at the factory who was the health and safety officer at the time the plaintiff hurt his hand.[30] He also referred to the answer given by the defendant to Interrogatory 10[31] which asked whether the defendant had conducted any risk assessment. The answer given to that Interrogatory was: “I am unable to say”.[32]
[29] T986.
[30] Ibid.
[31] Exhibit K.
[32] T987.
33 Mr Hore-Lacy submitted that:
…there's absolutely no evidence that the jury could act on to say that a risk
assessment was taken under this section. It's ridiculous that one person who's
employed to assist a person with a return to work plan, who asks the plaintiff,
especially one who's keen to work in the machine area, if that evidence is
accepted - and there's no reason why it shouldn't be - whether or not the -
whether the tasks are suitable. And bearing in mind that the plaintiff was dealing
with a hand. It wasn't dealing with a back injury, a ligamentous injury or a muscle
injury. It was dealing with a hand injury. The plaintiff was injured by a manual
handling cause.[33]
[33] ibid.
34 Mr Hore-Lacy then indicated he wished to get instructions before making an application.
35 morning, Mr Hore-Lacy repeated his submission that it would be necessary for
When he made his second application for discharge of the jury the next referred me to the evidence of Mr Marsh where he said that what he did in 2002 was an assessment but he was only “reviewing the pre-injury duties and also available suitable duties.”[34] Mr Hore-Lacy submitted that “There is no evidence that Mr Marsh did an assessment of what the plaintiff was required to do on this particular occasion or indeed, the pushing the boxes back into the stack.”[35]
[34] T783.
[35] T998.
36 Mr Hore-Lacy submitted that the relevant passages of the address were:
…a mish mash of ideas which can only be calculated to confuse the jury. And if
we can say by submission, it's a concern that these matters are being
intermingled and in particular this one. Because when you look at the evidence,
the evidence of Mr Marsh goes nowhere near permitting the jury to believe that a
worksite assessment has been conducted.[36]
[36] T1000.
37 Mr Hore-Lacy then referred to Mr Marsh’s report of 13 February 2002. He submitted[37] that although Mr Marsh said in his evidence that he walked through the factory[38], there was “no evidence at all that there was an assessment, as I said before, of the particular function that the plaintiff was required to perform and in our submission that is a matter which on its own can unfairly influence the jury.“[39]
[37] T1002.
[38] T783.
[39] T1002.
38 Mr Middleton submitted that Mr Marsh’s report was headed “worksite assessment” and that the assessment was done “for his identified duties” and did constitute a worksite assessment. However Mr Middleton conceded that Mr Marsh did not do an assessment of the manual handling task carried out by the plaintiff when he was injured.[40] Mr Middleton stated that:
I'm not suggesting for a minute that Your Honour do this but if Your Honour felt that some of the remarks didn't reflect the evidence, Your Honour could direct in that fashion but I don't accept that's the case at all.[41]
[40] T1021.
[41] T1008-1009.
39 The second matter raised related to the references to Mr Buswell and the plaintiff and the implication of collusion and/or recent invention. It is convenient to set out the relevant passages from the transcript:
MR MIDDLETON : Now, having said all of that to you, I need to now address the events of 2 September 2002 itself and to determine or assist you in there terms of our case, to assist you in determining what you might be satisfied on the balance of probabilities as having occurred on that date.
This issue you might think is both a separate issue to the submissions I've just made to you and you might also think it has some complementary aspect to it and the choices include a number of versions you might think.
First of all, did he kick the box as described by I'm relying on a note here, it might not be entirely accurate but you can have this read back to you from the transcript if you think it's important but Mr Angelis gave evidence this morning when I asked him what had happened he said, "He used his leg to kick a box open. He just felt pain in the groin, I don't think he elaborated."
You might think, having heard Mr Angelis, that he did his best to tell you when he
knew about what he had been told by Mr Mould, he had been told at some point
soon after the event and I think he was objective and having regard to the totality
of his evidence you might think that in some aspects he didn't have any
hesitation in dumping on the defendant about some of the practices that existed,
irrelevantly we would say, to this case, but some of the practices of the defendant
back in days gone by. So there's the kicking of the box.
Secondly, was it a case of simply bending down to pick up something, that which is contained in the clinical note of Dr Teo on 18 October 2002? Was it like somewhere else when it was suggested that he rose from a crouched position and had a hyperflexion injury? I think it was Mr Pillay that was offering that view. Was it as - - -
HER HONOUR: There's no Mr Pillay, Mr Middleton. Mr Patel?
MR MIDDLETON: I beg your pardon. Mr Patel, beg your pardon.
HER HONOUR: Yes.
MR MIDDLETON: Mr Patel was the one I was suggesting. Was it as Mr Burn had recorded in his February 2003 history, that he bent over and got a sharp pain in the groin? Was it as Mr Dunin suggested, that he had crouched down to readjust the boxes and developed sharp pain in the leg groin? Mr Dunin being the most recent to obtain a history.
Or was it like Mr Buswell reported by way of description, that which the plaintiff had told him on or about 2 September 2002, when he told that it related to his hip, that it occurred when he was either bumping or banging his hip into some plate material? He said, "Take your pick. You can take either one".
And what an extraordinary bit of evidence you might have thought that came from Mr Buswell, that he would remember eight years after the event something the plaintiff told him on or about 2 September 2002 and with such detail that he knew it related to the hip and that he knew that he was using the hip to manoeuvre the boxes in some form or other. So more about that in a minute.
Then there's the version that came in cross-examination when the plaintiff was asked to give some measurements and dimensions to the pallet. Six inches off the ground. Height of the boxes, 4 inches each. It was the fourth one down, or whatever it was, out of so many. And he agreed that that would mean it was one
foot two to one foot six the misaligned box from the floor of the factory premises.
And that would mean - and I'm not suggesting for a minute that you embark upon this task, but if you try and crouch down to that sort of dimension, one foot two to one foot four, and push with your hip, I think you'll have a great deal of difficulty
doing so. But we say to you that description by the plaintiff in cross-examination
defies credibility. But again it's a matter for you.
What is apparent, we say, is that there are other versions out there or at the very least there are nuances within the versions that you've got which were highlighted perhaps to some extent by the cross-examination of Mr Dunin on Friday when it was somehow suggested to him that there was some inconsistency in his history compared to others.
Now, it's not for Mr Dunin to come along and make comparisons about his history versus other people's histories. He seemed to suggest that whether it was crouched down and rising from the crouched position or bending didn't really matter in the mechanism of injury. And that might be so. But what is relevant here is that this is a history that he got about the circumstances, and you might think it has relevance in the context of liability. Because if he's simply bending down to pick up something without in fact doing any lift then that could hardly, you'd think, sound in a sustaining of an allegation of negligence against the defendant.
Whether or not he's bending, whether he's rising from a crouched position, whether he's lifting with the left hand or not lifting with the left hand, whether he's pushing with the hand or whether he's pushing with his hip or his body, these are all matters for you based upon the evidence which you accept. The fact that the story alters, you might think, over the years and that there is a desire both in Mr Buswell and the plaintiff in this witness box to implicate the use of the hip at the time of the event suggests there's been some degree of embellishment, we would suggest to you.
We say there's good reason for you to doubt the version of the events by the plaintiff. No doubt my learned friends will take you to Transcript 76 where there's this elaborate description of him placing his hip adjacent to the box, putting his hip on the box and whatever else that shows.
We say that the attempt to implicate the hip at the time with the event is naive and also misunderstood a basic proposition that came out of the medical evidence. As both Mr Doig and Mr Dunin suggest, the groin complaint is the first port of call for a labral tear. So you don't need to bang your hip against the thing for it to happen. You don't need to push with your hip. What you need is the labral tear to occur and that the symptoms manifest itself in the groin. It may be consistent with a hernia. But their first port of call here is that the groin symptoms relate to the labral tear in the hip.
And we say it doesn't require a complaint that the hip struck, pushed, moved, whatever, the box, or that there was pain in the hip at the time. Because the medical evidence suggests it's not necessary. And we say you might have
regard to this evidence of Mr Buswell and the plaintiff and think that there has
been a degree of embellishment and that the reason is totally transparent for the
suggestions I've just made to you.[42]
[42] T953-958.
40 Mr Hore-Lacy submitted that the way in which these matters were put to the jury was unfairly prejudicial to the plaintiff’s credit.
41 Mr Middleton also rejected the proposition that there was a “Browne v. Dunn[43] point in relation to the evidence of Mr Buswell.
[43] (1893) 6 R 67 HL.
42 He submitted that his comments were proper because they had evidentiary foundation. He said the defendant was not given notice of the evidence Mr Buswell would give concerning his conversation with the plaintiff on the day of
the incident and was entitled to say that it contradicts other evidence given. the hip making contact with the box, and defendant sought formal amendment of the statement of claim to reflect the “new version”, given by the plaintiff at the trial, of the hip being injured in the incident, as opposed to the groin. He submitted that he had put alternative versions of the incident to the plaintiff in cross-examination.
43 In reply, Mr Hore-Lacy submitted that the existence of Mr Buswell as a potential witness was flagged in the plaintiff’s claim form, and the plaintiff said in re-examination[44] that Mr Buswell saw him limping shortly after the incident and asked him why he was walking the way he was.
[44] T210.
44 The third matter raised related to the question of causation and the admissibility of the serious injury certificate and acceptance of liability letter. Mr Hore-Lacy submitted that in the light of my ruling excluding the serious injury certificate[45] and the acceptance of liability for the claimed injuries[46], it was very unfair considering the way the defendant put its case on causation for the jury to consider the plaintiff’s case without knowing what the defendant conceded in 2006. Mr Hore-Lacy submitted that as a matter of fairness to the plaintiff the admissions contained in the documents ought to before the court, whether before a judge alone or before a jury.
[45] dated 13 August 2008.
[46] dated 12 July 2007.
45 Mr Middleton submitted that no issue could be taken with the ruling I had already made in relation to the admissibility of the certificate and the letter accepting liability.
46 The fourth matter raised was Mr Middleton’s opening comment to the jury, which was in the following terms:
Madam Forelady, ladies and gentlemen of the jury, in our modern society you
might think that there’s an increasing tendency for members of that society to find
someone to blame for their own mistakes and you might think that that has
particular application in this case when a person performs a task which they
know they ought not do and indeed, as is the fact in this case, you might think,
they did this task specifically contrary to a certified capacity which had been
authorised by their general practitioner, Dr Teo.[47]
[47] T938-939.
47 Mr Hore-Lacy said that this was an “outrageous and inflammatory comment”[48] inflammatory and prejudicial to the plaintiff. Mr Middleton responded that this is a robust jurisdiction and that these comments “…are perfectly proper and commonplace in these cases” and that Mr Hore-Lacy could deal with them in his address.[49]
[48] T1006.
[49] T1019.
Reasons for discharging the jury
48 In Vozza v Tooth & Co Ltd[50] Sugarman and Manning JJ said:
As a general rule, we think that it is not only within the power of a judge to take whatever steps may be necessary to control the due conduct of the trial, but that it is proper for him to do so. If it appears likely that prejudice may possibly result from anything counsel says or does, delay may aggravate the position, and it is preferable that appropriate directions be given and that a corrective warning be issued at once.[51]
[50] [1963] NSWR 1675
[51] Ibid at [1685].
49 In Smout v Smout [52] counsel made unfounded assertions and unsupported allegations and imputations which were found likely to have distracted the jury from the proper performance of their duties and were likely to have affected adversely the jury’s assessment of the plaintiff’s credibility without justification.
[52] [1989] VR 845 at [851] per Kaye J.
50 In Smout, Beach J said that the conduct of counsel during final address in that case warranted immediate interruption of the final address by the trial judge, as well as telling the jury that counsel had acted improperly in what was
just said and giving an appropriate direction in the matter. Moffat P in Steele v
Mirror Newspapers Ltd[53] took a similar approach, when he observed:….A judicial attitude of being a benevolent referee, commendable though it may
at times be, must always give way to the court’s insistence on the standards
referred to.[54]
[53] [1975] 2 NSWLR 48.
[54] Ibid at [52].
51 In Rees v Bailey Aluminium Products Pty Ltd[55], the Court of Appeal said:
It has been repeatedly said that a trial judge should not hesitate, of their own initiative, if in the course of address counsel has made a serious error or misconducts himself or herself, to interrupt the address so as to immediately correct the effect of such error; for it will be difficult for the other party to make such an application in front of the jury.[56]
[55] [2008] VSCA 244.
[56] Ibid at [99].
52 In Baulch v Lyndoch Warrnambool Inc[57], the Court noted that there had been no interruption to counsel’s address, no objection from counsel for the appellant and no direction from the trial judge in his charge to the jury which acknowledged the error on the part of counsel for the respondent or sought to eliminate its effect. The Court held that the mention of the matter in the charge without a specific direction in strong terms as to the irrelevance of counsel’s comments and their prejudicial effect, was insufficient. The Court said:
…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.[58]
[57] [2010] VSCA 30.
[58] [2010] VSCA 30 at [72].
53 In Croll v McRae[59] the Full Court of New South Wales concluded upon reviewing the authorities that appellate intervention was warranted wherever “there is reason to believe that the course of justice has been substantially affected”.[60]
[59] (1930) 30 SR (NSW) 137.
[60] (1930) 30 SR (NSW) 137 at [143] (Street CJ, James and Halse Rogers JJ concurring).
54 In Chatzipantelis[61], the Full Court extended relief to an unsuccessful plaintiff where the judge’s charge included instruction about the plaintiff’s rights under workers’ compensation legislation as compared to his right to common law damages. The Court there considered that a redirection would not have corrected the matter.
[61] [1966] VR 242.
55 In Baulch the Court of Appeal 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 they jury had not been irretrievably prejudiced against the appellant by his irrelevant and inappropriate argument. [62]
[62] [2010] VSCA 30 at [75].
56 The Court noted that in that case, “it is immaterial whether what counsel did was done maliciously or in ignorance of the impropriety of his argument. It is the probable effect on the jury and the unacceptable risk of the production of a
miscarriage of justice which is important”.[63]
[63] Ibid at [76].
57 Where an application for discharge of the jury is made for things such as the introduction of irrelevant facts, misstatement of the evidence or the law, or the expression of prejudicial personal opinions, the trial judge “must assess the seriousness and likely effect of such misconduct and whether it can be cured by appropriately expressed directions”.[64]
[64] Rees v Bailey Aluminium Products Pty Ltd and Another (2008) 21 VR 478 at [122].
58 I note that in Rees, notwithstanding the seriousness of the misconduct alleged against counsel which occurred at a number of different points during the trial, the Court of Appeal considered that all of the misconduct of counsel “might
have been cured by objection being taken and by appropriately firm directions being given”.[65][65] Ibid at [137].
59 I make the following observations about the matters arising during the trial. The reference to the plaintiff’s affidavit in the evidence of Mr Dohrmann, if taken alone, might be thought to be capable of direction, although at the time it first occurred I declined Mr Hore-Lacy’s invitation to direct the jury about it because of a concern that to draw attention to it would be to compound any unfairness to the plaintiff.
60 Similarly, the repeated references to the evidence of Mr Dooley, and to the history given to him by the plaintiff might ordinarily be thought to be curable, once it was known that Mr Dooley would not be giving evidence, by an appropriately crafted direction. This might be thought to be the case particularly in circumstances where doctors other than Mr Dooley, including Mr Byrne, Mr Dunin and Mr Grossbard, reached similar conclusions to Mr Dooley in the sense that they considered that the plaintiff had pre-existing osteo-arthritis.
61 Prior to cross-examining Mr Dunin, Mr Hore-Lacy asked for an indication as to whether he was being called and Mr Middleton indicated that there were difficulties securing his attendance which is why he barely mentioned Mr Dooley to Mr Dunin. He indicated that he would know by Monday whether Mr Dooley would be called.
62 Mr Hore-Lacy conducted his cross-examination without knowing whether Mr Dooley would be called. In this context, he had no choice other than to deal with those aspects of Mr Dooley’s opinion which had been put to Mr Patel, in
particular, the history of how the incident occurred. This difficulty was created by Mr Middleton’s failure to give the indication that Mr Dooley would, or would not be giving evidence.
63 On balance, however, taken alone, I do not consider that this matter is sufficient to warrant discharging the jury.
64 I note that as the trial unfolded, however, it became clear that the issues to be determined, both medical and in terms of loss of earnings, were complex, and that throughout the trial there had been a sustained attack on the credit of the plaintiff in terms of his evidence that the injury to the hip occurred while he
was lifting with one hand, twisting his torso and pushing the misaligned box
with his hip. In addition, I had ruled that the documents relating to the grant of
a serious injury certificate and the acceptance of liability in respect of the
alleged injury to the hip were inadmissible. The landscape against which the
address was made was therefore one in which the very occurrence of work-
related injury was being challenged, in circumstances in which the plaintiff
could not rely on the relevant documents as admissions by the defendant.65 Mr Middleton made it clear in his submissions in response to the application for discharge of the jury that he did not resile from any of the matters put in his address and that he considered that they all had evidentiary foundation.
66 I make the following observations about the matters raised in relation to Mr Middleton’s address to the jury.
67 I consider that the opening comments of Mr Middleton were unnecessary and unfair. However, taken alone, I do not consider that they warrant the discharge of the jury.
68 I turn to two other significant aspects of the address.
69 First, I consider that the sections of his address relating to Mr Marsh’s report and his assertion that it constituted a risk assessment under the 1999 Regulations was confusing and misleading, particularly in the context of other sections of his address which acknowledge that the task performed was not part of the modified duties being assessed by Mr Marsh. For example, he said:
They are substantially about the fact you might think that here was a plaintiff with
a medical certificate imposing significant restrictions upon him in terms of the
duties he was to perform at work that was being monitored by Mr Marsh through
that period of time and that in the face of those restrictions which he reluctantly
acknowledged in the witness box, he performed a task he was not required to do,
it was not part of his modified duties as assessed by Mr Marsh, there was no
urgency to do the task, no urgency to move the boxes, the plate-maker wasn't
even there and hadn't been there for a week or weeks and if he wanted help to
do that task he simply had to ask we would suggest.[66] [underline added]
[66] T966.
70 The submission that the lifting task which caused the plaintiff injury was not one of which Mr Marsh was aware when he assessed the plaintiff’s modified duties indicates in my view that there is no evidentiary basis for the conclusion which Mr Middleton invited the jury to reach, namely that what Mr Marsh did constitutes the performance by the defendant of a risk assessment under the 1999 Regulations of the manual handling task undertaken by the plaintiff on the date of injury.
71 I consider that there is a real risk that the jury would be seriously misled by the address in this regard, and I do not consider that the matter could be adequately addressed by a direction.
72 The second significant matter, in my view, concerns the parts of the address concerning the credit of the plaintiff and Mr Buswell. I consider that these parts of the address contained an allegation not only that the plaintiff changed his story recently to implicate the hip but that he and Mr Buswell colluded to produce consistent, recently invented, versions of the incident which implicate the hip.
73 I accept that Mr Middleton did raise with the plaintiff in cross-examination some of the various histories given to doctors and to Steve Angelis concerning the precise mechanism of the injury on 2 September 2002, and the plaintiff gave his responses to those issues.[67]
[67] T135-136, 159-160.
74 In his evidence in chief, the plaintiff had said that he was using his left hand only to lift approximately the fourth box from a crouching position with his left side slightly against the stack of boxes and that as he lifted and twisted he
pushed his hip against the protruding box so as to push it back in with his
hip.[68] In cross-examination, he was asked:[68] T76.
Are you saying that you put your hip against the wayward box, the one that's protruding, in order to push it back into place?---Against whatever boxes were there, yes.[69]
[69] T135.
It was put to the plaintiff that: “you have not told a doctor in this case, and you’ve seen many, of any such description?” To which he replied: “Well I thought it was self-explanatory. If I described to so many doctors that I lifted
and pushed, and I can’t imagine what else I’m going to push with, therefore I didn’t say, “I placed my hip ---””.[70] The plaintiff said that when telling doctors that he lifted and pushed, “I’d just assume that – I've got nothing else to push
with except this part of my body.”[71] It was not put to the plaintiff that in fact the
hip never was involved in the incident and he was making it up for the first
time at the trial. In re-examination, the plaintiff said that no-one had ever
suggested to him prior to the trial that the incident had not occurred in the
manner in which he described in on 11 November 2002 in his claim for
compensation form.
[70] T136.
[71] Ibid.
75 know precisely what Mr Buswell would say about the content of the
conversation he had with the plaintiff on 2 September 2002 shortly after the
incident occurred. I note that in cross-examination he asked Mr Buswell about
I accept that at the time he cross-examined the plaintiff Mr Middleton did not which the plaintiff told him he would be asked to give evidence “You’re not making this up, are you?” in relation to the evidence of Mr Buswell that he recalled the plaintiff telling him that he lifted up the boxes and “bumped them in with his hip”.[72]
[72] T698.
76 However, I consider that the parts of the address outlined above suggested not only that the plaintiff lied or changed his story at trial to implicate the hip (which was never put to the plaintiff), but also that he and Mr Buswell
colluded to produce consistent versions of the incident which implicate the hip.
77 In this regard, I note the comments of Street CJ in Croll v Mcrae[73] after referring to counsel’s disclosure to a jury of an offer of settlement:
Human nature being what it is, of what use is it to tell them to disregard such a statement. The poison, once instilled into their minds, must inevitably work, and who could possibly feel any confidence in a verdict in the plaintiffs’ favour arrived
at after so prejudicial a statement has been made. In such a case a warning in
the summing up to disregard it is only to revive their recollection of it, and to
renew its damaging potency.[74]
[73] (1930) 30 SR (NSW)137.
[74] Ibid at [44].
78 This material was highly prejudicial to the plaintiff. I do not consider that its prejudicial impact could be overcome by a direction.
79 I note the authorities referred to above in relation to the desirability, in appropriate circumstances, of the trial judge interrupting the address of counsel in order to correct errors and to give appropriate directions. In this case, however, the first part of Mr Middleton’s address (before he dealt with the question of damages) was relatively short. The offending comments were interwoven throughout that section of the address. I was concerned that interrupting his address to draw attention to what was unfair about it might compound any unfairness to the plaintiff arising from the address. This is particularly the case in relation to the imputation of recent invention by the plaintiff and Mr Buswell and of collusion between them.
80 I consider on the basis of these two significant matters arising in Mr Middleton’s address, taken together with other matters that I have referred to, that there is a strong likelihood that justice would not be done if the case were left to the jury. For these reasons, I decided to discharge the jury.
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