Munro v Peninsula Health (No 1)

[2023] VCC 1573

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-03895

SCOTT MUNRO	Plaintiff
v
PENINSULA HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29, 30, 31 August, 1 and 4 September 2023
DATE OF RULING:	6 October 2023
CASE MAY BE CITED AS:	Munro v Peninsula Health (No 1)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1573

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Civil jury trial - discharge of jury

Legislation Cited:      Civil Procedure Act 2010

Ruling:  Jury be discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram KC with Mr P Haddad	Redlich’s Work Injury Lawyers
For the Defendant	Mr S Smith KC with Ms C Willshire	Wisewould Mahony

HIS HONOUR:

Introduction

1On 28 August 2023 just before the lunch break, an application was made on behalf of the defendant, Peninsula Health, to discharge the jury.

2I ordered that the jury be discharged.   

3Before moving to the particular issues of this application, I make reference to the Civil Procedure Act 2010 (“the Act”).

4Firstly, s49 of the Act provides the Court with the power to make such orders as it considers appropriate to further the overarching purposes of the Act.

5Secondly, s7 through to s27 outline those overarching obligations. The Act seeks to ensure that the parties in a proceeding:

(a)   obtain a fair and just determination of the real issues in the case;

(b)   are not prejudiced;

(c)   obtain procedural fairness.

6Peninsula Health said that, by reason of matters opened by Mr Munro, it would be unfair for the matter to proceed before the current jury. 

The Opening

7Put simply, Mr Munro said, in the course of the opening that:

(a)   the proceedings had been issued back on 10 September 2021;

(b)   on 25 August 2023, Peninsula Health amended their defence to admit liability;

(c)   there had been a “collapse of the defendant’s defence”.[1]

[1]        Transcript (“T”) 38, Lines (“L”) 19-20

8It was apparent from the opening that Mr Munro was wishing in some way to rely upon the amendment of the Defence to say that Peninsula Health’s work systems were so bad that they led to Mr Munro’s injuries in circumstances which went over and above the admission of liability.

9Peninsula Health said that such an opening was so “poisonous” so as to taint the jury.

10Peninsula Health said this was not a matter that could be remedied by either Mr Munro revisiting his opening or by a direction from me.  Peninsula Health said that, in those circumstances, the jury should be discharged.

Background

11It is appropriate for me to recap some of the history of this matter to provide context.

12Firstly, at the directions hearing on Friday, 25 August 2023, leave was granted to Peninsula Health to amend their defence.  In simple terms:

(a)   both negligence and breach of statutory duty was admitted;

(b)   injury was also admitted.

(c)   the allegation of contributory negligence was removed.

13Thus, it was the nature and extent of the injury and the consequences, which remained in dispute. 

14I will now make some observations:

(a)   This is a matter that comes to trial on the current state of the pleadings (that is, as amended on 25 August 2023);

(b)   Mr Munro has sought to comment on the behaviour of Peninsula Health prior to the amendment on 25 August 2023.

(c)   Importantly, the amendment was made by consent.  There was no request made by Mr Munro that the application for amendment to admit breach and injury be made in front of the jury.  Mr Munro did not ask for this to occur.  Should Mr Munro wish to ventilate such matters, that would have been the appropriate way to progress the matter.

(d)   That an opening is made on the basis of the pleadings.

Ruling

15Peninsula Health said, and I accept, that Mr Munro sought to introduce the historical conduct of this matter in a manner that sought to influence the jury.

16Peninsula Health said, and I accept, that Mr Munro had sought to, at least to a significant degree, introduce:

(a)   matters which were irrelevant;

(b)   a suggestion that Peninsula Health had acted in some way improperly;

(c)   the proposition that Peninsula Health’s defence had collapsed.

17Peninsula Health said that these matters would be prejudicial and, by inference, Mr Munro sought to gain benefit in the further conduct of the matter before this jury.  That is, to rely on the proposition that Peninsula Health’s remaining defence of the matter had collapsed.  It was open to infer that this went beyond liability, but to matters of damages, given the consequences to Mr Munro, was the remaining live issue.

18Peninsula Health said that, once these matters were before this jury, the jury was poisoned.  I put it another way.  Once the genie is out of the bottle, it cannot be put back into the bottle.

19To give this matter further context, on the morning before the jury were empanelled, there was discussion with respect to having photographs and other materials included in the Jury Book, to be provided to the jury at the time of Mr Munro’s opening. 

20I ruled against Mr Munro in respect to a number of those materials on the basis of relevance.  At that time, there were discussions about what the real issues in the trial would be.  I sought, and obtained, from Peninsula Health, agreement that the two patients Mr Munro manoeuvred on the day of the injury were:

(a)   in the case of one patient, 136 kilograms in weight;

(b)   in the case of the other patient, approximately 105-106 kilograms.

21I did so with the intent to avoid the very problem which ultimately arose.

22An opening is an opportunity to provide an overview of the case based on the facts in issue and the pleadings.  While there is a degree of robustness in our common law jurisdiction and openings can on occasion have some colour and movement, unfortunately, I consider Senior Counsel for Mr Munro overstepped the mark in this matter.

23The only two questions which the jury were being called upon to answer went to damages.  Clearly in issue was the nature and extent of Mr Munro’s injuries, given that injury itself had been admitted. 

24The Opening to the jury that the defendant’s Defence of the matter has collapsed, I consider to be a step too far.  There was clearly medical and other evidence available to Peninsula Health to legitimately challenge matters going to the assessment of damages and the questions to be answered by the jury.

25Given that we were only at the commencement of this case, and given that Peninsula Health has a prima facie entitlement to trial by jury, I:

(a)   discharged this jury;

(b)   adjourned this matter to the following day for the purpose of recommencing the matter; re-empanelling a new jury, and progressing the matter.

26At that time, I reserved the question of costs. 

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