Reza v Summerhill Orchards Ltd
[2013] VSCA 17
•15 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0034
| NASER ALI REZA | Appellant |
| v | |
| SUMMERHILL ORCHARDS LTD | Respondent |
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| JUDGES | WARREN CJ, HARPER JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 January 2013 |
| DATE OF JUDGMENT | 15 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 17 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Coish, 29 February 2012) |
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ACCIDENT COMPENSATION - Negligence – Jury trial – Closing address of defendant’s counsel – Breach of rule in Browne v Dunn – Comment on plaintiff’s receipt of worker’s compensation – Application to discharge jury refused by trial judge – Duty of trial judge – Applicable principles – Matter corrected by direction from trial judge to jury – Retraction by defendant’s counsel – Counsel’s conduct did not seriously affect the proper conduct of a fair trial – Jury not unfairly influenced – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C J Blanden with Mr D Seeman | Ryan Carlisle Thomas |
| For the Respondent | Mr M F Wheelahan SC with Ms R L Kaye | Wisewould Mahony |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Kyrou AJA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.
HARPER JA:
I also agree with Kyrou AJA.
KYROU AJA:
Introduction and summary
The appellant sued the respondent for damages for an injury to his right knee. He alleged that he sustained the injury when he fell off a ladder in the course of his employment with the respondent as a fruit picker at the respondent’s orchard near Shepparton. After a 10 day trial in the County Court, a jury of six answered ‘no’ to the question of whether any negligence of the respondent was a cause of the appellant’s injury. Judgment was entered for the respondent in accordance with the jury’s verdict.
In his closing address to the jury, senior counsel for the respondent (who did not appear for the respondent on the appeal) made the statement set out at [27] below (‘Impugned Statement’). The Impugned Statement referred to the appellant’s receipt of ‘compensation payments’ and suggested that the jury ‘might think that it lessens his urgency to work’. Such an allegation had not been put to the appellant or to any of his witnesses.
The appellant applied to the trial judge for an order discharging the jury on the basis that the Impugned Statement deprived him of a fair trial. The trial judge refused the application.
The appellant now appeals against the judgment below on the ground that the trial judge erred in refusing the application.
For the reasons that follow, I would dismiss the appeal.
The appellant’s case at the County Court trial
The appellant was born on 1 January 1978 and arrived by boat to Australia as a refugee from Afghanistan in 2001. He is illiterate in his first language, Dari, as well as in English.
The appellant commenced work as a contractor at the respondent’s orchard in 2002. In May 2004, he was employed directly by the respondent. His tasks involved picking fruit and thinning and pruning trees. He was considered to be a good worker.
On Saturday 11 December 2004, the appellant was thinning apple trees in the respondent’s orchard. This involved removing budding fruit from trees so that the remaining fruit could grow to an acceptable size. The job required the use of an aluminium three-legged ladder to access the fruit.
The appellant gave evidence that he was standing on the third step of such a ladder when the single back leg sank into the soil, which resulted in the ladder moving underneath him, causing him to fall. He said that the soil was soft at the time of the fall. He testified that he injured his right knee as a result of the fall but he did not report the incident to the respondent until Monday 13 December 2004.
A written injury report was completed on 14 December 2004. The respondent’s WorkCover insurer, QBE, accepted the appellant’s claim for the payment of medical expenses and weekly income.
The appellant gave evidence that he worked for two to three weeks after the accident, performing his normal duties – including going up and down ladders – but that he worked more slowly and not as well as he had done prior to the accident .
The appellant attended a general practitioner, Dr Joanne Zhou, on 13 and 21 December 2004. He was referred for an MRI on 15 December 2004, and to Mr Ian Critchley, an orthopaedic surgeon, on 27 January 2005. Mr Critchley diagnosed the appellant as having torn his anterior cruciate ligament (‘ACL’).
The appellant underwent an ACL reconstruction on 3 May 2005. He had a poor post operative result with an abnormal pain reaction. A further arthroscope was performed on 8 November 2005 which revealed that a screw used in the initial operation had broken off and was floating in the knee. The appellant also had a fibrous lesion from the implanted tissue. On 21 July 2009, a further arthroscopy was conducted which revealed that the ACL was intact but slack.
The appellant returned to work on alternate restrictive duties for a period of time in the 18 months to two years after the accident.
The appellant’s claim of negligence against the respondent was based on an alleged failure to provide an adequate and secure ladder and requiring him to work on the ladder when it was allegedly dangerous to do so due to the soft and wet soil.
The appellant called Mr Geoff Waddell, a consulting engineer, who gave evidence that the ladder was inadequate because it lacked a spreader. Mr Waddell also said that the design and size of the foot of the back leg of the ladder was too small to prevent slipping and/or sinking into the soil.
The appellant tendered rainfall data for 11 December 2004 which showed that rain had fallen in areas near the orchard. The data did not indicate whether rain had fallen at the orchard. The appellant invited the jury to infer that, if it had rained in the nearby areas, it was likely that it had also rained at the orchard.
The appellant called various medical practitioners, including Mr Critchley, who gave evidence about the injury to the appellant’s knee, the treatment he had received, his prognosis and his ongoing work capacity. He also adduced evidence about psychological issues. By consent, some medical reports and notes were read to the jury.
The respondent’s case at the County Court trial
The respondent denied negligence and causation. It argued that the ladder was adequate and safe and that the soil was neither soft nor wet. It also argued that the appellant had not sustained his knee injury in the fall.
In relation to the ladder, the respondent called two managers who gave evidence that it was safe.
In relation to the condition of the soil at the orchard on 11 December 2004, the respondent contended that there had not been any rain at the orchard on 11 December 2004. It tendered data from its internal moisture detection system, consisting of probes buried in the soil at various depths, which was said to show that the soil was not wet.
In cross-examination, Mr Critchley said that, after a complete ACL tear, the injured person would be in pain and would have great difficulty walking.
Mr Ian Jones, an orthopaedic surgeon called by the respondent, gave evidence that, if the appellant had suffered an ACL tear following the fall as described, he would not have been able to climb a ladder at all and probably would not have been able to walk without assistance.
The appellant’s credit was the subject of a vigorous and wide-ranging attack. He was accused of lying about issues in dispute and about personal matters. However, the appellant was not cross-examined about the receipt of compensation payments or about whether his receipt of such payments had any impact on his failure to return to work.
Application to discharge the jury
The Impugned Statement in the closing address of senior counsel for the respondent was as follows:
I will also get some short matters out of the way now. You heard about compensation. His Honour will tell and my friend may well tell you, you ignore the fact that the plaintiff has been paid compensation because in the event you were, and our case to you is that you should not give any damages at all to the plaintiff but in the event that you were, he doesn’t get to double dip. The law requires His Honour to deal with how the compensation payment and the damages are to be sorted out one from the other. The only significance we say that you might think of is that if this plaintiff has been, as he does continue to be, on compensation payments, you might think that it lessens his urgency to work. His case is, put differently he says look, I’m on my uppers, I can’t send money home. Been home four times, each time for three months in the last four or five years. Doesn’t look like he’s right on his uppers.
The case is principally not about what he’s got by way of compensation or whether he has got any urgency to work or not to work, the case is principally about was this soil wet and if he did fall from the ladder, did he fall because it was wet and if he didn’t fall because it was wet, if he’s coming down and he twisted and he fell off, it’s got nothing to do we would say, with any negligence by the defendant and if the soil, if he did have a fall on that day, did it rupture his ligament – and we say his actions and activities and his descriptions are absolutely inconsistent with a complete tear of the ligament.
The Impugned Statement was made just prior to the afternoon adjournment on Thursday 23 February 2012. The following morning, in the absence of the jury, the appellant applied for an order that the jury be discharged on the basis that the Impugned Statement rendered the trial unfair. This was because, so it was said, there was no evidence about the appellant’s receipt of weekly payments and the appellant and his medical witnesses were not cross-examined about any impact that such payments may have had on the appellant.
Senior counsel for the respondent submitted that his reference to the appellant’s receipt of compensation payments had an evidentiary foundation and was not inappropriate. However, he conceded that his comment that the appellant’s continuing receipt of compensation payments might have lessened his urgency to work was unfair because he had not put this allegation to the appellant.
The trial judge refused the appellant’s application to discharge the jury. He ruled that any prejudice to the appellant could be overcome by an immediate direction by him to the jury to disregard the Impugned Statement.
When the jury entered the Court at 11.46am on Friday 24 February 2012, the trial judge gave the following direction:
I want to give you a direction in law before [senior counsel for the respondent] resumes his closing address, and you will recall right at the outset I explained to you that of course you and you alone are the judges of the facts. I am the judge of the law. Any direction in law that I give you must be obeyed by you.
The closing address of [senior counsel for the respondent] just in about the second last thing he said to you contained a reference to a submission that the plaintiff had been and continued to be on compensation payments, and an argument was made that you might think that lessened the plaintiff’s urgency to work and an argument was made that the plaintiff had been home namely to Afghanistan four times for three months in the last four or five years and it didn’t look as if he is right on his uppers, was the expression used by [senior counsel for the respondent].
The submissions that were put came after [senior counsel for the respondent] had said that I will tell you to ignore the fact the plaintiff has been paid compensation, and following the submission that he made he said that the [principal] issue in the case was whether the soil was wet and if there was an incident on this day did the plaintiff rupture his ACL.
I just want to give you this direction in law, and that [is], there ought not have been any reference in [senior counsel for the respondent’s] closing address, to the plaintiff being or continuing to be in receipt of compensation payments. The evidence in this case has covered many areas and at times there has been a reference to WorkCover and at times there has been a reference to claim forms.
If a plaintiff receives WorkCover weekly payments of compensation, that fact is entirely irrelevant to your consideration – entirely irrelevant. What you are going to be doing is you are going to be asked two questions, and I am actually going to give you the questions now because this will help you to understand the direction I am giving to you. We might have an extra one, that’s all right.
I will just run through this with you now because what you see here are the questions that you’re going to be asked to answer. Question 1. Was there any negligence on the part of the defendant, its servants or agents which was a cause of the plaintiff’s injury, loss and damage? Question 2. If yes to 1, (a) in what total sum do you assess damages for pain and suffering, (b) in what total sum [do] you assess damages for pecuniary loss?
Now question number 1 is asking you, was there any negligence on the part of the defendant, its servants or agents which was a cause of the plaintiff’s injury, loss and damage. The fact of the plaintiff having been paid WorkCover weekly pay at any time is entirely irrelevant to question number 1. You disregard any reference to WorkCover weekly payments completely. It is entirely irrelevant and must be disregarded.
Similarly, if you answer question number 1 yes, well then you go to 2. If you answer question 1 no, that’s the end of the case. If yes to 1 you go to 2. Now 2 is asking you about the sums that you assess for damages. Once again the fact that a worker, a plaintiff, the plaintiff may have received weekly payments of WorkCover benefits is entirely irrelevant to that task that you will undertake if you’re answering this, subject to one qualification, and I’ll explain the qualification and it’s a technical area and it just concerns taxation that was payable on past compensation payments.
I will explain it to you for the purposes of this direction it’s not something you need concern yourselves with. So, WorkCover weekly payments of compensation, irrelevant. Everyone is nodding, got that clear, crystal clear, couldn’t be clearer. I will put that to one side. There is a principle in court which is that in the conduct of litigation if one side is going to make an allegation against another side well they put it to the other side. In other words, if you’re going to suggest something to the other side, well you put that proposition to the other side to give them a chance to respond. Not complicated is it? No.
It was never put to this plaintiff that compensation payments might lessen his urgency to work so there should have been no reference to that in the closing address by [senior counsel for the respondent]. You must disregard it entirely. You follow that? You just disregard it entirely. It plays no part in your thought processes. At all. Again I’ll just remind you, I think I’ve already said this a couple of times, I say it at the beginning, I think I said it last Friday, I’ll say it again and again. You decide the case on the evidence. On the evidence that’s presented.
…
At the end of the day you decide the case on the evidence. So, crystal clear. Those submissions should not have been put. It was about the last [word] on last night so as [soon] as it’s been done which is the first opportunity that I’ve had which is first thing this morning, it’s a bit late I know so I make it crystal clear disregard it entirely. All right? Good. All right, now you’ve got the questions now we’ll continue with it.
Senior counsel for the respondent then resumed his closing address. At the outset, he said the following:
It is His Honour’s role to tell you what to disregard but you must do that. The principle of fairness is that if an argument is put by me, he, Mr Reza, ought to have been given a chance. There was an argument put by me in a field where he has not been given any chance. That was unfair, I ought not have done it. That is my fault and His Honour’s fixed that, and you’re to follow what he says.
Senior counsel for the appellant did not directly refer to this issue in his closing address. He did say, however, that the respondent’s allegation that the appellant pretended to have an accident on 11 December 2004 was inexplicable and that no motive was ever suggested to him. Counsel added that it was not put to the appellant that he staged the accident because he was after money. Counsel also emphasised that the respondent had accepted the appellant’s ‘claim forms’ and had treated the claim as legitimate.
In his charge to the jury, the trial judge stated the following:
I must provide you with some brief directions about WorkCover. There have been references in the evidence to ‘WorkCover’, ‘insurer’, ‘QBE’, these references have been at various points in the evidence. I direct you that people often perhaps use shorthand expressions or the like, but the concept of WorkCover, QBE, insurance, totally irrelevant, completely irrelevant to what you are going to decide.
You have got two parties in this case. You have got the plaintiff, Mr Reza, and you have got the defendant, Summerhill Orchards. That is it. You are going to decide this case between those two parties. Those references that emerge now and again, irrelevant.
I have already directed you on this, but I am going to repeat it. The fact of payment of WorkCover weekly payments, in relation to Question 1, completely irrelevant. I have already gone over that with you. I just repeat that. Similarly, the fact of WorkCover weekly payments in relation to Question 2, completely irrelevant save for one qualification and I am going to deal with that in a moment. There has been references to medical treatment. Medical and like expenses form no part of the claim. So, again, completely irrelevant.
Past WorkCover weekly payments. If you are assessing past loss of earnings, don’t be concerned about the possibility of double dipping. It won’t happen. You probably haven’t even thought of it. But if you have thought of it don’t worry about it. There is a system in place, a mechanism in place which ensures that this doesn’t happen. There has been a reference to the fact the plaintiff may have received WorkCover in the past, and here you find yourself being asked to calculate past pecuniary loss as the total loss, past loss of earnings. There is no suggestion of double dipping.
I have said this a number of times. I always repeat this over and over. Deliver your verdict based on the evidence.
Later in his charge, his Honour said the following about the Fox v Wood[1] component of the appellant’s claim for pecuniary loss damages:
There is a figure of $22,274 which is described as Fox v Wood agreed sum. This is tax on weekly payments of compensation. So this is what I’ve referred to as the one qualification on the irrelevance of past weekly payments. Let me explain this to you and give you some directions about this. The plaintiff has received payments of WorkCover weekly benefits. If you award him pecuniary loss damages he will be required to repay those in order to avoid double dipping.
Now the payments that are deducted from the damages are gross amounts, however the plaintiff received a net benefit, that is a weekly payment of compensation less taxation. If the matter were left on that basis there would be unfairness in that the plaintiff would have received a net weekly benefit but would be required to repay a gross weekly benefit. Thus the plaintiff in a case such as this is entitled to claim as part of his damages that difference, and that’s $22,274. It is described as Fox v Wood. Don’t worry about that name. That is just the name of a court case which set out these principles.
[1](1981) 148 CLR 438.
No exceptions were taken to the parts of the judge’s charge set out at [34] and [35] above.
The jury retired to consider its verdict at 2.55pm on 27 February 2012. On 28 February 2012, the jury requested the transcript of the evidence of Mr Critchley, the notes of Dr Zhou about the appellant’s first two visits and counsels’ submissions on those visits. On 29 February 2012, the jury requested the dates of the MRIs undertaken by the appellant. The jury returned its verdict at 2.38pm on 29 February 2012.
Ground of appeal and the parties’ submissions
The sole ground of appeal is expressed as follows:
The learned trial judge erred in law in refusing to accede to the Appellant’s submission to discharge the jury having regard to comments made by Senior Counsel for the Defendant in his closing address to the jury. In such comments:
(i)the jury were told of the receipt by the Plaintiff of weekly payments of compensation pursuant to the Accident Compensation Act from the date of accident to the date of trial, which had not been the subject of evidence; and
(ii)the receipt of such payments was suggested as a reason for the jury to question the Plaintiff’s motivation to work between the date of accident and date of trial, which was an allegation never put to the Plaintiff or any medical witnesses in the course of evidence.
The appellant submitted that the Impugned Statement invited the jury to infer that:
(a) the appellant was seeking more than his proper entitlement by bringing a common law claim;
(b) the appellant was greedy;
(c) the appellant was not entitled to legitimately receive such payments;
(d) the payments represented a fallback position if the appellant failed in his common law action;
(e) in the circumstances of the case, this was the reason why the appellant pretended that he had hurt his knee in the fall when he had not done so.
The appellant contended that the Impugned Statement was irrelevant to the jury’s task and was designed to distract them, in the background of a sustained attack on the appellant’s credibility. As the Impugned Statement was made in the respondent’s closing address, so it was said, the appellant was deprived of any opportunity to adduce evidence to address the issues raised by the Impugned Statement. The critical sting in the Impugned Statement, according to the appellant, was that it suggested to the jury a reason not to accept his claim which had no evidentiary basis, namely, that he pretended to be unable to work so as to continue to receive compensation payments.
The appellant conceded that the trial judge’s directions reduced the prejudice arising from the Impugned Statement. However, he submitted that the directions were insufficient to remove that prejudice. He also contended that the delay between the making of the Impugned Statement and the giving of the directions enabled the jury to reflect upon, and to be influenced by, the Impugned Statement in a manner that was not overcome by the subsequent directions by the trial judge.
The respondent submitted that the references to the appellant’s receipt of compensation payments in the Impugned Statement were unobjectionable when considered in their context and in the light of the evidence. The respondent conceded that the suggested motive for the appellant’s failure to return to work breached the rule in Browne v Dunn,[2] but it contended that the prejudice arising from the breach had been cured by the trial judge’s directions.
[2](1893) 6 R 67.
Relevant legal principles
In a jury trial, counsel should refrain from raising issues in their examination of witnesses or their addresses to the jury that are not relevant to the issues in the trial and which may distract the jury from reaching a verdict according to the evidence adduced at the trial.
In a common law claim for damages for personal injury allegedly caused by an employer’s negligence, reference to a plaintiff’s entitlement or otherwise to worker’s compensation, where that is not directly in issue, is irrelevant.[3] Ordinarily, neither the trial judge nor counsel for any party should make reference to this matter, as it may improperly influence the jury and distract it from its task of deciding the questions of fact committed to it.[4] A reference to worker’s compensation should be made only where it is specifically relevant to an issue that the jury is required to determine.[5] Where the Fox v Wood component of damages is agreed between the parties, only the briefest reference to worker’s compensation is required.[6]
[3]Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242, 245 (‘Chatzipantelis’); Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, 216-17 (‘Fitzpatrick’).
[4]Chatzipantelis [1966] VR 242, 245; Croll v McRae (1930) 30 SR (NSW) 137, 144 (‘Croll’).
[5]Chatzipantelis [1966] VR 242, 246.
[6]Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1, 15 [65] (‘Baulch’).
The trial judge is responsible for ensuring that the trial is conducted fairly for both parties. A fundamental principle of fairness that the trial judge must be cognisant of is the rule in Browne v Dunn, which broadly requires that any matter upon which a party proposes to rely to contradict the evidence of a witness must be put to that witness, so as to provide the witness with an opportunity to respond.
If the rule in Browne v Dunn is infringed or for any reason the jury is exposed to irrelevant and potentially prejudicial material, and one of the parties applies for an order discharging the jury, the question for the trial judge is whether the conduct complained of has seriously affected the proper conduct of a fair trial.[7] The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief.[8] If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authoritative direction to the jury.[9] If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.
[7]Baulch (2010) 27 VR 1, 7 [20], [24].
[8]Smout v Smout [1989] VR 845, 851 (‘Smout’); Turner v Victorian Arts Centre Trust [2009] VSCA 224 [46] (‘Turner’).
[9]Smout [1989] VR 845, 851; Turner [2009] VSCA 224 [46].
On appeal from the refusal of a trial judge to discharge the jury in circumstances where the rule in Browne v Dunn was breached or the jury was exposed to irrelevant material, the question for the appellate court is whether to allow the judgment below to stand would effect a substantial wrong or miscarriage of justice.[10] That question depends on whether, in the events which occurred, the fairness of the trial was seriously affected to the prejudice of the party that applied for a discharge of the jury, such that a new trial should be ordered.[11]
[10]Baulch (2010) 27 VR 1, 20 [90].
[11]Baulch (2010) 27 VR 1, 7 [21].
Considerations that are relevant to the determination of whether a new trial should be ordered include:
(a) the nature of the breach of the rule in Browne v Dunn or the irrelevant material and the context in which the conduct complained of occurred;[12]
[12]Baulch (2010) 27 VR 1, 7 [21], 20-1 [90]; Croll (1930) SR (NSW) 137, 144.
(b) the weight to be attached to the irrelevant material in its context, including, in a case such as the present, other references to worker’s compensation during the trial;[13]
[13]Chatzipantelis [1966] VR 242, 245-6.
(c) the manner in which the reference to the irrelevant material was made;[14]
[14]Fitzpatrick (1935) 54 CLR 200, 217; Smout [1989] VR 845, 851, 853-4.
(d) the remedial actions taken by the trial judge, including the terms of his or her directions to the jury and any comments seeking to remove the irrelevant material from its consideration or to balance the conduct of counsel in breach of the rule in Browne v Dunn;[15]
[15]Smout [1989] VR 845, 851-2; Baulch (2010) 27 VR 1, 6-7 [19], 17 [71], 21 [90]; Fitzpatrick (1935) 54 CLR 200, 217.
(e) whether the conduct complained of was retracted by the counsel who committed it or was the subject of any comment by counsel for the aggrieved party;[16]
[16]Baulch (2010) 27 VR 1, 7 [23]-[24], 21 [90].
(f) the nature of the dangers to which the aggrieved party was exposed from the conduct complained of;[17] and
(g) the probable effect on the jury of the conduct complained of and the remedial action taken by the trial judge.[18]
[17]Fitzpatrick (1935) 54 CLR 200, 217.
[18]Smout [1989] VR 845, 851; Baulch (2010) 27 VR 1, 7 [21], 18 [75].
The whole trial must be considered in the context in which it was conducted.[19]
[19]Baulch (2010) 27 VR 1, 21 [90].
It must also be borne in mind that, in both criminal and civil jury trials, juries are assumed to understand and comply with directions from the trial judge.[20] The capacity of a jury to decide a case in accordance with the law and the directions of the trial judge should not be underestimated.[21] The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.[22] It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law – that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations – juries comply.[23] The capacity of juries to do so is critical to ensuring that proceedings are fair.[24]
[20]R v Mokbel (2009) 26 VR 618, 638 [90] (‘Mokbel’).
[21]Dupas v The Queen (2010) 241 CLR 237, 247 [22], 248-9 [29], 251 [38] (‘Dupas’).
[22]Dupas (2010) 241 CLR 237, 247 [26]; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473, 477 [15]; Mokbel (2009) 26 VR 618, 638 [90].
[23]General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 84 [54]; Dupas (2010) 241 CLR 237, 248-9 [28]-[29].
[24]Dupas (2010) 241 CLR 237, 248-9 [29].
However, in some cases, a breach of the rule in Browne v Dunn or the irrelevant material to which the jury is exposed is so prejudicial that no direction by the trial judge can ensure a fair trial. In such a case, the only means by which the prejudice can be overcome is to order a new trial.[25]
[25]Croll (1930) SR (NSW) 137, 144; Baulch (2010) 27 VR 1, 19 [77], 21 [91].
In the present case, the appellant relied on the judgments of Dixon CJ and Windeyer J in Balenzuela v De Gail[26] for the proposition that where a jury might have been improperly influenced by a breach of the rule in Browne v Dunn or by being exposed to irrelevant and potentially prejudicial material, an appellate court must order a new trial without enquiring into the effect that the breach or the exposure had on the jury. In my opinion, Balenzuela is distinguishable because it dealt with errors of law by a trial judge which result in the wrongful admission or exclusion of evidence. The principles discussed in Balenzuela do not apply to cases such as the present, which concern whether legally correct directions by a trial judge were sufficient to overcome the unfairness caused by a breach of the rule in Browne v Dunn or by the jury being exposed to irrelevant and potentially prejudicial material. The principles that govern such cases are set out at [43] to [51] above.
[26](1959) 101 CLR 226, 235-7, 242-5.
Did the reference to worker’s compensation result in an unfair trial?
In the course of the trial, there were numerous incidental references to ‘WorkCover’, ‘insurance’, ‘insurance company’, ‘QBE’, ‘WorkCover insurance’, ‘work insurance’, ‘WorkCover agents’, ‘payments’, ‘WorkCover certificates’, ‘certificates of capacity’, ‘pay the compensation’, the appellant’s ‘receipt of workers compensation payments’, ‘compensation payment’, the appellant being ‘on compensation’, the respondent’s ‘worker’s compensation officer’, ‘claim’, ‘claim compensation’, ‘WorkCover payments’ and ‘worker’s claim form’.
The most detailed references to the appellant’s receipt of worker’s compensation payments were as follows:
(a) The appellant’s junior counsel read to the jury a report dated 25 January 2010 by Dr Robin Horsley, an occupational health rehabilitation counselling specialist, which included the statement that the appellant ‘is in receipt of workers compensation payments’.
(b) The appellant’s junior counsel read to the jury a further report by Dr Horsley dated 15 December 2011, which stated that the appellant ‘remains in receipt of workers compensation payments’.
(c) Ms Deborah Cooper, the respondent’s occupational health and safety coordinator and worker’s compensation officer, gave evidence that the appellant behaved in an aggressive manner at her office on 11 January 2007. When she was cross-examined about the reason for the appellant’s behaviour, she stated that the appellant was upset because he had not received any payment since 14 November 2006.
The appellant’s WorkCover worker’s claim form and the employer’s claim form were tendered by the appellant and were made available to the jury. Ms Cooper was cross-examined on the contents of the employer’s claim form.
As a result of the matters to which reference is made at [53] to [55] above - some of which were disclosed to the jury as part of the plaintiff’s case - the jury became aware that the respondent’s worker’s compensation insurer, QBE, had accepted the appellant’s worker’s compensation claim and had made worker’s compensation payments to him.
There was no direct evidence that the appellant continued to receive worker’s compensation payments as at the time of the trial. However, there was evidence that the appellant received worker’s compensation payments from the date of the accident on 11 December 2004 until 15 December 2011 and there was no evidence that there had been any change in this position.
Although the references to worker’s compensation were mostly of a general nature and did not focus on weekly income payments, when the references are considered cumulatively and in their context, they would have conveyed to the jury that the compensation included weekly income payments. Accordingly, by the time the Impugned Statement was made, the jury would have been aware from the evidence that the plaintiff was receiving such payments.
There is no doubt that the references to compensation payments by senior counsel for the respondent were irrelevant to the issues to be decided by the jury and should not have been made. However, in the light of what the jury had heard about worker’s compensation from the witnesses of both parties, the mere reference by senior counsel for the respondent to the appellant’s ongoing receipt of worker’s compensation payments was not, in the context in which it was made, capable of prejudicing a fair trial. The context was that the trial judge would tell the jury that it should ignore the fact that the appellant had been paid compensation and that, if the jury awarded damages, there would be no double dipping.
Senior counsel for the respondent also told the jury that the case was ‘principally not about what [the appellant] got by way of compensation’ and then went on to explain what the case was ‘principally about’. The use of the expression ‘principally’ was unfortunate because it might have suggested that the receipt of compensation had some ancillary relevance. However, when counsel’s comments are considered as a whole, they would have conveyed to the jury that it should not be concerned by the references to worker’s compensation in the evidence.
In any event, for the reasons discussed below, any prejudice arising from the references to compensation payments by senior counsel for the respondent was overcome by the trial judge’s directions to the jury.
Did the reference to lessening the urgency to work result in an unfair trial?
It was common ground at the County Court trial and on the appeal that the suggestion in the Impugned Statement that the appellant’s receipt of compensation payments might have lessened his urgency to work infringed the rule in Browne v Dunn. This allegation had not been put to the appellant or any of his witnesses, thus depriving him of the opportunity to respond to it and, if necessary, to call evidence in relation to it. Moreover, there was no evidentiary foundation for the allegation. The allegation was irrelevant to the issues to be decided by the jury and was capable of prejudicing the plaintiff’s case. Accordingly, the Impugned Statement was indefensible.
However, the Impugned Statement constituted a passing comment that was made in the context of an attempt by senior counsel for the respondent to explain the principal issues in the trial and why the appellant’s receipt of compensation payments was not a principal issue. Counsel had already discussed at length the principal issues at the commencement of his closing address. Following his reference to compensation, he told the members of the jury that the judge, and possibly senior counsel for the appellant, would tell them that they should ignore the fact that the appellant has been paid compensation. He also said that there was no risk of double dipping.
It follows that the context in which the Impugned Statement was made ameliorated its prejudicial impact. While the Impugned Statement could have contributed in a general way to any doubts that the jury already had about the genuineness of the plaintiff’s case, it is very unlikely that the jury would have drawn any of the specific inferences set out at [39] above.
Even if it is accepted that the Impugned Statement had the potential to cause serious prejudice to the plaintiff’s case, the critical question is whether, in the circumstances of the trial, the directions given by the trial judge overcame that prejudice.
In my opinion, for the reasons that follow, the directions given by the trial judge, combined with the retraction of the Impugned Statement by senior counsel for the respondent, had the effect of overcoming the prejudice that would otherwise have been caused by the Impugned Statement. In all the circumstances of the case, one can be confident that the jury decided the appellant’s case on the admissible evidence presented at the trial.
The Impugned Statement was made just prior to the afternoon adjournment on Thursday 23 February 2012. The first thing that the members of the jury heard when they entered the court room on the morning of Friday 24 February 2012 was a clear, full and authoritative direction from the trial judge which:
(a) identified the questions that they would be required to answer;
(b) instructed them that the appellant’s receipt of WorkCover weekly payments was irrelevant to those questions and must be disregarded;[27] and
(c) instructed them to disregard the suggestion that the appellant’s receipt of compensation payments might lessen his urgency to work, as this had not been put to the appellant.
[27]The trial judge said that there was one qualification that he would explain later in his charge. That qualification is set out above at [35].
The jury apparently understood the direction because the trial judge observed that ‘[e]veryone is nodding’. The content and timing of the direction, coming as it did on the first reasonably available opportunity after the making of the Impugned Statement, directly addressed and neutralised each of the prejudicial features of that statement. The ‘sting’ in the Impugned Statement was further eroded by the frank concession by senior counsel for the respondent that he should not have made the suggestion in question, that it was his fault and that the jury should comply with the trial judge’s direction. To an extent, the observations of senior counsel for the appellant in his closing address also assisted in reducing the prejudice arising from the Impugned Statement.
Any residual prejudice arising from the Impugned Statement would have evaporated after the trial judge completed his charge. In the charge, the trial judge repeated the substance of his earlier direction and provided appropriate context for the limited relevance of compensation payments to the jury’s task. He also emphasised that there was no possibility of ‘double dipping’.
The conduct of the jury clearly suggests that it understood and complied with the trial judge’s directions to ignore the Impugned Statement. Had the Impugned Statement poisoned the minds of the members of the jury, they would have been expected to promptly return a verdict for the respondent. However, the jury deliberated between 2.55pm on Monday 27 February 2012 and 2.37pm on Wednesday 29 February 2012 before returning a verdict for the respondent. This period of deliberation indicates that the members of the jury carefully and conscientiously reviewed the evidence before reaching their verdict.
The two questions that the jury asked[28] also indicate that the jury focused on the evidence and the issues that the trial judge directed them to consider, rather than being distracted by the Impugned Statement.
[28]See above at [37].
On the appeal, senior counsel for the appellant correctly conceded that, on the whole of the evidence, it was open to the jury to find that no negligence of the respondent caused the appellant’s injury. It was open to the jury to find that the ladder was safe, that the soil at the orchard on 11 December 2004 was not soft or wet and that the ladder did not become unstable in the manner alleged by the appellant. As the appellant had given inconsistent versions of how he fell, it was open to the jury to reject his evidence about how the accident occurred. Moreover, even if the jury accepted the appellant’s evidence about the state of the soil and his fall from the ladder, the medical evidence cast significant doubt on whether such a fall could have caused the rupture to the ACL.
In my opinion, the circumstances of this case are far different from those in Baulch. In that case, the comment by defence counsel about the plaintiff’s receipt of worker’s compensation was particularly egregious because it clearly implied that the plaintiff was greedy in wanting a very large sum of money. The plaintiff’s counsel did not apply to discharge the jury on the basis of that comment and he did not seek any direction from the trial judge in relation to it. Further, the trial judge did not give any direction about the comment. It was in this context that the Court held that ‘the jury were left to decide the case with an uncontested, irrelevant and misleading submission concerning a false issue to the significant prejudice of the [plaintiff]’.[29]
[29]Baulch (2010) 27 VR 1, 17 [68].
Conclusion
For the above reasons, the trial judge was correct to conclude that his directions to the jury could overcome the prejudice that had been caused by the Impugned Statement. As a result of those directions, the fairness of the trial was not seriously affected and a miscarriage of justice did not occur. His Honour’s refusal to discharge the jury was not vitiated by error. Accordingly, I would dismiss the appeal.
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