Neal v State of Victoria (Ruling)
[2015] VCC 1377
•8 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
GENERAL LIST
Case No. CI-13-02107
| BARBARA NEAL | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21, 22, 23, 24, 25, 28, 29 and 30 September 2015 and |
DATE OF RULING: | 8 October 2015 |
CASE MAY BE CITED AS: | Neal v State of Victoria (Ruling) |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1377 |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Industrial jury trial – application to discharge jury – failure to discover or produce documents – late production of photographs – evidence suggesting injury did not occur on the day alleged – whether a risk of miscarriage of justice
Legislation Cited: County Court Civil Procedure Rules 2008; Civil Procedure Act 2010
Cases Cited:Browne v Dunn [1893] 6 R 67; R v Allen [1989] VR 736; Australian Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] VR 355; Ferguson v Mackaness Produce Pty Ltd [1970] 2 NSWR 66; Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) & Ors v Ernst & Young & Ors (No 4) [2005] SASC 443
Ruling: Jury discharged without verdict.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC Mr A D B Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr D E Curtain QC Mr P G Hamilton | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 On 6 October 2015, I made a ruling discharging the jury on day eleven of this civil trial, shortly prior to counsel delivering their final addresses.
2 I now set out the reasons for that ruling.
The proceeding
3 The plaintiff alleges she suffered injury to her left and right shoulder and neck, together with a reactive depression, in the course of her employment as a trainee prison officer on a “fire training day” (“the training day”), “on or about 23 May 2006”.[1]
[1]The plaintiff’s Statement of Claim pleads the injury occurred “on or about 23 May 2006”.
4 She alleges the injuries occurred as a result of the negligence of the defendant; alternatively, as a result of the breach by the defendant of the Occupational Health and Safety (Manual Handling) Regulations (“the Regulations”).
5 In particular, she alleges the injuries occurred:
· when being required to lift and carry fire-fighting breathing apparatus (“the apparatus”) weighing between 10 and 13 kilograms;
· when being required, while wearing the apparatus, to enter a smoke-filled room (“the room”) and to adopt awkward postures.
6 As the evidence emerged, it was clear that the principal issues were not only those of negligence and breach of statutory duty, but also as to the causative relationship between the activities on the training day, and the injuries. In that regard, the plaintiff did not complete a WorkCover Claim Form until 22 September 2006. Further, there was considerable cross-examination of the plaintiff and treating medical practitioners about when she first reported injury, and when she first associated the injury to the activities of the training day. On one view of the evidence, there was a considerable delay between the training day and the report of injury.
The application to discharge
7 In making the application to discharge the jury, Ms Hartley submitted there was a significant risk of miscarriage of justice were the jury be permitted to render its verdict. She relied upon the following:
(i) The defendant had failed to produce or discover various relevant documents, the existence of which emerged during the course of the evidence of the defendant’s witness, Mr Paul Dawson;
(ii) The defendant had failed to produce or discover the plaintiff’s pre-employment medical assessment which presumably found the plaintiff fit for work as a prison officer;
(iii) A number of matters emerged in the evidence of the defendant’s witnesses which were not put to the plaintiff in cross-examination;
(iv) An injury report form referred to in the evidence of Mr Dawson was not discovered nor produced;
(v) Another of the defendant’s witnesses Mr George Golden produced a significant number of photographs which had not previously been produced nor discovered;
(vi) Despite the defendant producing many documents, including Answers to Interrogatories which indicated that the training day occurred on 23 or 24 May 2006, it emerged in the course of the cross-examination of Mr Golden that, according to a roster which had previously been produced in the discovery process, in fact the training day occurred on 2 and 3 May 2006.
8 I do not regard the failure to produce or discover the plaintiff’s pre-employment medical assessment as a matter of any significance. I was taken to correspondence by the defendant’s solicitor, Mr Lane, of September 2015 which indicated that the medical assessment was carried out by an independent medical service and the defendant was not able to obtain that assessment. In fact he was not aware of the identity of the doctor.
9 The plaintiff gave evidence that she had no pain nor restriction in her shoulders nor neck prior to the training day and this was not challenged in cross-examination. Even if a medical assessment could have been located, it would not have been of any issue, given the unchallenged evidence of the plaintiff’s pre-injury state.
10 Likewise, the issue of an injury report form is not significant. Exhibit “K” is a blank injury report form used by the defendant to record injury. This form was said by Ms Hartley to be important, as it made provision for hazard identification and risk assessment, both matters of relevance to statutory breach. According to the evidence of Mr Dawson,[2] he would have expected such a form to have been completed. However, he was not in a position to say whether such a document had, in fact, been completed. He said: “This would be handled by our HR section.”[3]
[2]Transcript (“T”) 906
[3]T906, L19 – 20
11 The mere fact that a document ought to have been completed does not mean that it was. I do not see this as a matter of any significance.
The failure to put matters which emerged in Mr Golden’s evidence to the Plaintiff
12 The rule in Browne v Dunne,[4] is a rule of fairness requiring one party to put their case to the opposing party’s witnesses. The requirement allows:
[4][1893] 6 R 67 – see further R v Allen [1989] VR 736
(i) a party’s witness to deny or explain that aspect of the evidence;
(ii) the party to call evidence in rebuttal.
13 The rule has never required every aspect of a party’s case to be put, but rather the essential factual ingredients. Failure to observe the rule may lead to an application for the opposing party to re-open his or her case, to draw an inference as to the reliability or honesty of the evidence which was not put, or a strong comment from the Bench. The rule does not render the evidence inadmissible.
14 Ms Hartley submits that there were a number of aspects of the evidence of Mr Golden which were not put to the plaintiff in the course of her evidence. These included:
· That Mr Golden led only the plaintiff and another trainee into the room without the remainder of the group. (The plaintiff had previously given evidence that all ten trainees entered the room in a “chain”, one holding onto the other).
· The 90-second time trial, when the trainees had to don the apparatus within that time, occurred before entering the room. (The plaintiff gave evidence that exercise occurred at the end of the day, after entering the room).
· That one of the trainees, claiming to be suffering from an old back injury, was seen in the photographs produced by Mr Golden to be wearing the full breathing apparatus. (Mrs Neal’s evidence had been that she was forced to lift the apparatus herself without a buddy, as the person with whom she was paired had a back injury and could not assist).
15 It should be observed that at the outset of the trial, I made an order that witnesses remain out of Court during the course of the evidence. That undoubtedly restricted Mr Curtain, for the defendant, in being able to explain to Mr Golden, the evidence which had already been given in the trial. Further, all of the matters to which Ms Hartley referred came out in the course of cross-examination, and not examination-in-chief.
16 It is not uncommon in a damages trial that evidence emerges of matters of which counsel who called the witness had no knowledge. It is clear from the manner in which this evidence came before the Court that Mr Curtain was not aware of these matters, otherwise he would have led them in evidence-in-chief. While this evidence could adversely affect the plaintiff’s case, they were not central issues and I do not see the admission of the evidence as being a sufficient ground to discharge the jury. The fact that the evidence was not put does not make it inadmissible. In fact it could have been the subject of comment by Ms Hartley to the jury in the course of her final address and would have been the subject of comment by me to the jury in the course of the charge. I would have told them when considering this evidence, the plaintiff did not have the opportunity to rebut it or otherwise deal with it.
17 I do not see this issue as a matter of significance in determining whether or not to discharge the jury.
The late production of photographs by Mr Golden
18 I accept that on about 30 September 2015, Mr Curtain became aware that a witness he proposed to call, Mr Golden, had in his possession a significant number of photographs which had been taken over the course of the training day. Ms Hartley objected to their production and use, but on the grounds that, had she had them available, she could have provided them to her medical witnesses for an opinion as to whether the apparatus fitted appropriately. I ruled the photographs admissible, albeit provided some restrictions.[5]
[5]T642 – 643
19 However, in the course of Mr Golden’s evidence, the photographs assumed a different significance. In her evidence, Mrs Neal said that a member of the training group had a panic attack in the room, with all ten trainees present, and had to be removed. By reference to the photographs, Mr Golden was able to say that in fact the trainees were divided into two groups over the two days of the exercise and the person who suffered the panic attack was from a different group.
20 Further, the trainee who Mr Golden identified as having reported an old back injury, was shown in the photographs to be wearing the full apparatus. Mrs Neal’s evidence had been that because of his bad back, he was unable to “buddy” with her, as he could not help to lift the apparatus.
21 The photographs were clearly discoverable. From the outset, it must have been obvious Mr Golden was a key witness in the defendant’s camp. I will deal with the obligation of solicitors in relation to discovery shortly, but it is clear the photographs ought to have been provided to the plaintiff’s solicitors in the discovery process rather than near the end of the trial. Had that occurred, Ms Hartley would probably have been better armed to deal with the matters raised in Mr Golden’s evidence.
22 While looked at in isolation, the late production of the photographs and the importance they ultimately assumed, while being somewhat prejudicial to the plaintiff, was not, of itself, sufficient to warrant a real apprehension of a miscarriage of justice and discharge of the jury. However, these matters must be looked at in total.
The date of the training day
23 According to the plaintiff’s Amended Statement of Claim, she sustained injury “on or about 23 May 2006”. In the course of her examination-in-chief,[6] she did not name a specific date as the date of injury, although it is clear that throughout the course of the trial, she and all the other relevant witnesses assumed that the training day and consequent injury occurred on either 23 or 24 May 2006. That assumption was maintained until the evidence of Mr Golden.
[6]T60
24 In evidence-in-chief,[7] it was suggested to him that the practical part of the training was conducted on 24 May 2006 and at Sunshine. He answered “No” to that question, but it was unclear whether that answer related to the date, or to the place where the training was conducted. The real issue emerged in the course of cross-examination.[8] It was put to him that by 12 May 2006, he was aware that the plaintiff was being isolated within the group of trainees. That evidence was of some significance, because the plaintiff had previously given evidence that, because of that isolation, and the fact that her “buddy” had a sore back, she was unable to obtain a partner to assist in lifting the apparatus. What followed from Mr Golden’s evidence was that, according to a “schedule”, it was clear to him that in fact the training day was 3 May 2006.
[7]T930, L11
[8]See T940, T950 and following
25 Up to that point, the defendant had supplied, in the discovery process, to the plaintiff’s solicitors, various documents which made it relatively clear that the training day was 23 or 24 May 2006.[9] In particular, a witness declaration of Mr Golden, presumably obtained in the investigation process, said that the training day was 24 May 2006. This document was discovered to the plaintiff’s solicitors. I was advised that the “schedule” to which Mr Golden referred was also discovered to the plaintiff’s solicitors.
[9]The documents included various investigation and circumstances reports and other documents
26 The defendant, by its officer, provided two sets of sworn Answers to Interrogatories of 2 May 2014 and 11 September 2015.[10] From those documents it is clear that although initially it was thought the training day was 16 April 2006, both sets of Answers state it was 23 or 24 May 2006.
[10]Plaintiff’s Court Book (“PCB”) 21 and following, PCB 88D and following
27 In the circumstances, it was reasonable for the plaintiff to rely on this documentation and accept the date when the injury occurred was 23 or 24 May 2006.
28 Although only three weeks apart, Ms Hartley submits that a difference in the dates is significant. As earlier stated, causation is a major issue in the trial. There was a significant amount of cross-examination of the plaintiff and treating medical practitioners that:
· there was a long delay in the plaintiff reporting to her general practitioner any pain in the shoulders or neck.
· there was a long delay in the reporting to the treating practitioners of any association between the activities on the training day and the injuries to her shoulders and neck.
29 Ms Hartley submits that adding a further three-week period to that delay is a matter of significant prejudice to the plaintiff.
30 In any jury trial, evidence emerges unexpectedly. It is clear that Mr Curtain was unaware of this evidence before given by Mr Golden. He submits Ms Hartley could have used the witness declaration previously given by Mr Golden as a weapon in cross-examination, given that he was apparently giving two versions of the date of the training day.
31 While that is correct, that did not present a satisfactory means by which the plaintiff could deal with this issue. I accept Ms Hartley’s submission that in the light of the causation argument, any further delay in the reporting of the injuries or their association to the training day could be a matter of some significance to the jury. In my view, there is a further issue. The jury could have used the incorrect date as a credit issue against the plaintiff, and to some effect.
32 True it is the plaintiff’s practitioners had the ‘schedule’ referred to by Mr Golden, but I accept the explanation of Ms Hartley that there was some confusion, because the training day was originally to be conducted at premises at Fiskville and was then moved to Sunshine. The delay caused by that move could have accounted for the different date in the schedule.
33 While the emergence of this evidence could not be said to be the fault of the defendant’s practitioners, as I am satisfied they were not aware of it, nonetheless it does present a risk that in relying upon the documents and Answers to Interrogatories, the evidence of the date of the training day as 3 May 2005 could disadvantage the plaintiff’s case.
The failure to discover or produce relevant documents
34 In order to understand this issue, it is necessary to understand something of the discovery process that had taken place before the matter came to trial.
35 The defendant served an Affidavit of Documents sworn 20 March 2014.[11] A Supplementary Affidavit of Documents, sworn 2 September 2015, was also served. Details of the issues relating to discovery shortly prior to the trial are set forth in an affidavit of Katherine Ann Wilson sworn 5 October 2015. Application was made to a Judge of this Court for further discovery. The issue of whether or not a risk assessment of the tasks on the training day had been undertaken as required by the Regulations, was important. It is understandable why that was so. The plaintiff pleaded a breach of the Regulations as a statutory cause of action. If no risk assessment was undertaken and there was a causative link between incident and injury, the plaintiff succeeds and is entitled to damages. It is not a question of the reasonableness or otherwise of the conduct of the defendant. Quite appropriately, the plaintiff’s solicitors specifically sought production of any occupational health and safety documents. Ms Wilson’s letter to the defendant’s solicitors of 10 September 2015 included:
“Please confirm that there is no risk assessment/s and or other policy/s in the defendant’s possession and all documents, correspondence and emails that the defendant intends to rely upon, that adversely affect the plaintiff or the defendant’s case or support the plaintiff’s case have been discovered. … .”
[11]PCB 60
36 In the course of Ms Hartley’s cross-examination of Mr Dawson, it emerged that he was aware of documents which had not been produced. It should be said that Mr Dawson again was a key witness from the defendant’s camp. He was one of the workplace trainers involved in the plaintiff’s group. The following parts of his evidence are relevant:
(i) He said he had never been asked to provide copies of any documents that might be relevant to the case.[12] He said he would have provided “all those presentations” so as not to waste the Court’s time;
[12]T864, L16
(ii) There was a PowerPoint presentation relating to the donning procedure for the apparatus. That document was on a “G:drive” at the jail. That document was different to a PowerPoint presentation he had already produced;[13]
[13]T860, L2 – T861, L17
(iii) There were three or four PowerPoint presentations which were presented to the trainees before the physical training commenced, only one of which was produced;[14]
[14]T863, L13 – 21
(iv) Any physical training would have had a “risk matrix” applied. This document was in writing and prepared in conjunction with SESG and the Country Fire Authority.[15] He was unable to say whether this “risk matrix” applied to the exercise in the room, but did cover all of the activities involving the apparatus;[16]
(v) He was shown exhibit “G”, the defendant’s Manual Handling Risk Assessment, but “suspected” there was another document which he referred to as the “risk matrix”.[17]
[15]T869, L7 – T870, L30
[16]T871, L22
[17]T873, L6 - 18
37 I am unable to determine precisely whether each one of these documents was called to be produced in the course of Mr Dawson’s evidence, but at least some were called for by Ms Hartley. Mr Curtain’s response was that he did not produce any of the documents. No further explanation was given in particular as to whether any attempt had been made to locate them over the course of Mr Dawson’s evidence.
38 Mr Curtain submitted that there was some confusion in relation to the evidence of Mr Dawson, and he may in fact have been referring to other related risk assessment documents which had been produced and tendered into evidence (exhibits “F”, “G” and “J”). However, it would seem clear from his evidence that he was in fact referring to documents which had not been produced. It is not possible to make any final determination on the issue until an investigation, with Mr Dawson present, is made of the documents he holds, or documents which were said to be on the defendant’s computer, are produced.
39 Ms Hartley submitted these documents are of significance. They clearly go to the issue of whether or not a risk assessment was undertaken in accordance with the Regulations, and further, she said she would have provided these documents to the expert ergonomist, Ms Kikas, for her inspection and opinion.
40 I am less persuaded that the documents are of importance for the sake of obtaining an opinion from Ms Kikas, but there is little doubt that they are of significance when assessing the issue of whether there has been a breach of the Regulations, in particular, as to a risk assessment. Further, they are of significance in determining whether there was any written procedure relating to the donning and wearing of the apparatus.
41 As Ms Hartley pointed out, the “buddy system” is an important aspect of the defendant’s defence. If all of the trainees were told they were required to have a buddy to assist in the lifting of the apparatus, one would have expected such a protocol to have been part of the documentation. If the documents contained no such protocol, it would have made the defendant’s case on the issue less convincing. Further, through the evidence of Ms Kikas, the plaintiff alleges that it is not sufficient for the trainers simply to ask the trainees to notify them if the activities caused injury or soreness, but in addition, to provide them with information to enable them to identify the possibility that any part of the activities conducted on the training day, may run the risk of causing musculoskeletal injury. Again, it would be a matter of significance if these documents failed to address that issue.
42 It might be said the failure to produce these documents could be used to forensic advantage. Ms Hartley could have gone to the jury in final address and complained long and hard that documents identified as relevant had not been produced. It is to her client’s advantage that no risk assessment had been provided. However, these are not easy tactical decisions to make in the course of a heavily contested trial when the precise contents of documents are not known.
43 The obligation upon solicitors to provide a comprehensive disclosure of documents through the discovery process is a heavy one. The County Court Civil Procedure Rules 2008 provide as much. With the advent of the Civil Procedure Act 2010, that obligation is further emphasised. Section 26 of the Act makes it clear not only is there an obligation on the parties to disclose the existence of all documents in their possession, custody or control, but the obligation extends to documents which “the person considers, or ought reasonably to consider, are critical to the resolution of the dispute”.[18] A Legal Practitioner has an obligation to comply with the overarching obligation as to discovery of documents.[19] Section 56 provides the Court with extensive sanctions in the event there is a failure to comply with discovery obligations. Those sanctions extend to adjourning a proceeding, referring the matter for contempt or to a disciplinary authority, dismissing any part of a claim or defence and compelling a person to give evidence in relation to such a failure.[20]
[18]Section 26(1)(b)
[19]Section 13(2)
[20]Section 56(2)(a),(b),(i),(j) & (k)
44 Rule 29.01.1(3) of the County Court Civil Procedure Rules 2008 makes it clear that a “reasonable search” should be made for discoverable documents.
45 Rule 29.01.1(5) provides that in making a reasonable search, a party may take into account:
“(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.”
46 In identifying documents which may be relevant to an issue in a trial, a litigant requires the guidance of lawyers knowledgeable in the rules of pleadings to determine what documents are relevant.[21]
[21]Australian Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] VR 355 at 374
47 In Ferguson v Mackaness Produce Pty Ltd,[22] Macfarlan J, said:
“… It is therefore, I hope, clear from what I have said that it is not sufficient for a solicitor simply to enquire of his client or of a principal, if he himself happens to be an agent only for the principal’s solicitor in another State, if he has any documents and request that he send any documents that he has to him; the obligation extends much further, namely, to the extent that the solicitor is obliged to make an appraisal of the case and form his own opinions as to what document[s] probably are in existence and actively to seek out from the client or his interstate or foreign principal whether or not those documents exist. It is only, indeed, in that way that the obligation of the solicitor can be properly discharged.”
[22][1970] 2 NSWR 66
48 The obligation of a solicitor to make true and full disclosure of documents includes a duty to make proper enquiries as to whether a client has in their possession any documents which require discovery. This is so, as a court relies upon a practitioner’s assertion that his or her client has no other documents which require discovery. In accepting such an assertion, the Court presumes that reasonable enquiries have been made.[23]
[23]See Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) & Ors v Ernst & Young & Ors (No 4) [2005] SASC 443 at paragraph [16]
49 I accept Mr Curtain’s assurance that neither he nor his instructor, Mr Lane, have in their possession any further discoverable documents. However, what must be observed is that the two principal witnesses in the defendant’s camp, Mr Dawson and Mr Golden, were not approached to provide any documents which they possessed, or to which they had access, which were relevant to the plaintiff’s claim. It must have been evident to those advising the defendant at an early time that these witnesses had first-hand knowledge of the events giving rise to the plaintiff’s claim. The obligation upon practitioners to which I have referred, in my view, extends to making appropriate enquiries with these witnesses to determine not only what they knew or observed of the plaintiff’s actions on the training day, but also to enquire what documents they held or knew of which may be relevant. It would appear that did not take place.
50 At this point, I know nothing of the enquiries made on behalf of the defendant in the discovery process or leading up to the trial. I make no finding of fault nor blame against the defendant’s practitioners. That could only be ascertained after further enquiry.
51 It is possible, as Mr Curtain asserts, there is some confusion as to what documents Mr Dawson holds. It is possible, although it appears to me to be unlikely, that the documents referred to in the course of his evidence have indeed been produced. Were that the case, then there could be no criticism of the discovery process.
Conclusions
52 On the face of it, and without further enquiry, it appears documents of significance have not been discovered or produced. Further, the late production of Mr Golden’s photographs could adversely affect the plaintiff’s case. Finally, there is the risk that a jury could take an adverse view of the plaintiff’s credibility or the causation issue because of the evidence relating to the actual day upon which the training occurred.
53 If indeed, there are documents, as referred to by Mr Dawson, in existence, which have not been discovered or produced, that is a matter of very real significance and sufficient, in my view, of itself, to warrant a discharge of this jury. The other two issues, of themselves, are not sufficient to warrant a discharge. However, when assessed together, there is a significant risk of a miscarriage of justice if the questions in this trial were to be determined by the jury.
54 In all the circumstances, it is appropriate that the jury be discharged.
Further conduct of the proceeding
55 I indicated to the parties that I would not make any determination as to the further conduct of the proceeding until I had provided these reasons. At the outset, Ms Hartley indicated she sought discharge of the jury, and the empanelment of a fresh jury. I will hear submissions from the parties, but given eleven days of trial have now elapsed, with nearly a thousand pages of transcribed evidence, my initial view is that the matter should proceed, as a cause.
56 I shall hear further from the parties on this issue, and any other matters.
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