Page v Rheem Australia Pty Ltd

[2016] VSC 600

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURY LIST

S CI 2013 04257

BRIAN PAGE	Plaintiff
v
RHEEM AUSTRALIA PTY LTD (ACN 098 823 511)	First defendant
BPG ACCESS PTY LTD (ACN 140 147 708)	Second defendant
CSR BUILDING PRODUCTS LTD (ACN 008 631 356)	Third defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2016
DATE OF RULING:	4 October 2016
CASE MAY BE CITED AS:	Page v Rheem Australia Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 600

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JURY – Discharge of jury – Juror had previous work experience as a plumber and currently manages tradespersons - Appearance of partiality in the context of the cause – Jury discharged.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Ms M. Hartley QC Mr A. Saunders	Maurice Blackburn
For the first defendant	Mr P. Jens QC Mr T. Storey	IDP Lawyers
For the second defendant	Mr I. McDonald	Moray & Agnew
For the third defendant	Mr S. Smith	Terrill & Holmes Lawyers

HIS HONOUR:

1. The plaintiff has made an oral application that I discharge the jury in the current proceeding. The basis of that application is the disclosure of a member of the jury to my Tipstaff that he a) has previously worked as a qualified plumber; and b) is currently employed as an operations manager at a shopping centre, an aspect of which is that he controls the operations of various workers and tradespersons there.

1. In this proceeding, the plaintiff alleges negligence on the part of each of the three defendants, and breach of statutory duty by the first and second defendant. In very brief surmise, the plaintiff claims that he was injured in the course of his work for the first defendant, when installing a hot water system on the roof of a house partially constructed under the management of the second defendant. He alleges that he was injured when his leg fell through the roof’s surface and into the roofing space below following a failure of a roof tile. The third defendant was the manufacturer of the roof tiles. Each defendant alleges contributory negligence against the plaintiff, and each defendant has filed a Notice of Contribution as against each other defendant.

1. The plaintiff submits that, given this juror’s personal experience, both in his previous work a plumber and in his present role, there is a risk of actual and apparent partiality of this juror in determining the issues and assessing the damages in this matter.

1. This case essentially involves the activities of a plumber. The jury will hear expert evidence about controversial matters concerning plumbing techniques, plumbing safety, and the operation of statutory regulations concerning the activities of a plumber. It will be the jury’s task to determine whether those dealing with this plumber were negligent, and whether this plumber was negligent himself.

1. Although I agree with the proposition that the Court ought accept that jurors will follow the direction of a trial judge to act only on the evidence at trial, it is my view that it would be near impossible for a former plumber not to look at the evidence in the present matter through the lens of his former occupation. In these circumstances, I accept that there is at least an appearance of partiality on the part of the impugned juror.

1. It is also my view that there is a real risk where there is one member of a jury who is known by the other members to have experience in a field relevant to the matters to be determined, that other members of the jury may defer to that particular juror’s expertise.

1. I should also note that the plaintiff raised a procedural fairness issue. During empanelment, the relevant juror’s occupation was called as ‘operations manager’. The plaintiff submits that, had he been aware that the scope of the man’s employment involved the control of tradespersons, he might have exercised his right to peremptory challenge differently. I consider there is some force to this submission.

1. In all the circumstances, I am satisfied that there is a risk of at least apparent partiality of this juror, and I consider it to constitute sufficient reason to discharge this jury.

1. The three defendants in this matter each submitted that, in the event that this jury were discharged, a further jury ought be empanelled. The trial is currently in its second day. No evidence has been led by any party, however, counsel for the plaintiff has completed her opening address. In these circumstances, it is my view that the cost and inconvenience of empanelling a further jury is minimal, and the defendants’ rights to have the matter heard by jury ought persist.

1. I shall accede to the plaintiff’s application to discharge the jury. The matter will proceed as a jury trial, with a fresh jury to be empanelled tomorrow. I will make no order as to costs, save to reserve all parties’ rights to make an application under the Appeals Costs Fund Act 1998.