Tragas v Bob Jane Corporation Pty Ltd (Ruling No. 1)
[2018] VSC 432
•6 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S CI 2015 06073
| KONSTANTINOS TRAGAS | Plaintiff |
| v | |
| BOB JANE CORPORATION PTY LTD | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July to 3 August 2018 |
DATE OF RULING: | 6 August 2018 |
CASE MAY BE CITED AS: | Tragas v Bob Jane Corporation Pty Ltd (Ruling No. 1) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 432 |
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JURY – Application to discharge jury – Evidence led from plaintiff’s general practitioner referring to an ‘offer’ – Whether risk to a fair trial – Any risk of prejudice to defendant remediable by direction to jury to disregard evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms MA Hartley QC with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr D Curtain QC with Mr R Kumar | Wisewould Mahony Lawyers |
HER HONOUR:
The plaintiff, Mr Tragas, claims damages for negligence and breach of statutory duty from his former employer, Bob Jane Corporation Pty Ltd. The trial of his action commenced before me and a jury of six on Tuesday 31 July 2018. On the afternoon of the fourth day of the trial, the defendant applied to discharge the jury. For the reasons that follow I have decided that the application should be dismissed.
The basis for the application to discharge the jury was some evidence led from the plaintiff’s general practitioner, Dr Christos Papachristos, in re-examination. The evidence concerned a consultation between Dr Papachristos and Mr Tragas on 13 May 2016, and centred on the doctor’s note of the consultation to which he had been taken in cross-examination by Mr Kumar, junior counsel for the defendant. The transcript of the evidence that was the context for this exchange is set out in full in the annexure to this ruling.
The evidence of particular concern was as follows:[1]
All right. And then do you go on to deal with his mood?‑‑Yes‑. The initial part is his reporting, ‘Mood has been very depressed since then, feels helpless as he cannot do anything useful around the home or with his life, feels as if the last three and a-half years have been wasted. Has conciliation hearing in October. Has court hearing in February 2017. Feels as if he wants to accept any offer to finish everything off. Approved for neuro stimulation, but advised by lawyer that accepting this offer will compromise his case and delay it further’, and then I've written, which is my observations I – of – of the situation, ‘Looks even more depressed and upset than normal. Pain is no different. Sleep disturbance is no different. Counsels’ ‑ ‑ ‑
And then you go on about some treatment ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ that you then offer. So I just wanted you to have the whole context of that note, because in relation to that line that deals with the neuro stimulation, there's reference to an offer, and there's, as you've read it, earlier references to offers, and I just wanted to clarify what offer you were referring to in that line that deals with the neuro ‑stimulator?‑‑What‑ I took it to be is an offer to, ah – I – I presume a financial offer to, ah ‑ ‑ ‑
[1]Transcript 434:26-435:18.
Mr Curtain, senior counsel for the defendant, objected at this point and soon afterwards asked to raise a matter of law in the absence of the jury. Just before noon the jury left the courtroom, as did the witness. After a discussion in which Mr Curtain foreshadowed this application, the jury returned, Dr Papachristos completed his evidence and another witness, Dr Joseph Slesenger, was called.
On resuming after lunch Mr Curtain applied to have the jury discharged. I indicated that I would hear the application after the completion of Dr Slesenger’s evidence. I also indicated that I would be directing the jury to disregard the evidence of the consultation on 13 May 2016, both in cross-examination and re-examination, on the basis that it was irrelevant. Upon the jury returning to the courtroom I gave that direction, in the following terms:[2]
Members of the jury, before we have Dr Slesenger back in, there's a matter that I want to raise with you arising out of this morning's evidence from Dr Papachristos. You may recall that he was asked some questions by Mr Kumar for the defendant, and then in re-examination by Ms Hartley, about a consultation that he had with Mr Tragas on 13 May 2016. It's my view that that evidence is not relevant to anything that you have to decide, and so I ask you to disregard it, and when we give you the transcript that part of the evidence will not appear.
[2]Transcript 487:3-13.
As I had indicated I would, I heard the defendant’s application to discharge the jury at the end of the day, after Dr Slesenger had completed his evidence and the jury had departed.
The essence of the defendant’s argument is that the mention by Dr Papachristos of a ‘financial offer’ is highly prejudicial to its interests and incapable of being redressed by a direction to the jury. Mr Curtain put the argument thus:[3]
If the jury think that the defendant's been offering money to try and settle this case, it's very easy for them to say, ‘Well, we should be giving money’, and we say this is a case on liability, fair and square, as well as on damages on quantum, and the probably [probable] effect on the jury of the conduct complained of, and the remedial action taken by the judge. And we say it's a matter that really isn't capable of being redressed by just a comment from Your Honour, and of course, as Your Honour pointed out, the correction of it draws attention to it, and that's a matter, not of the defendant's making, but a problem for the defendant.
[3]Transcript 525:18-29.
On that basis, Mr Curtain submitted that I should discharge the jury and recommence the trial before a new jury. He emphasised his client’s wish to have the proceeding tried by a judge and jury.
Ms Hartley for the plaintiff submitted that the evidence was neither irrelevant nor prejudicial to the defendant, but was properly led in re-examination to address ‘an inference that the jury might draw from [the evidence in cross-examination] that the plaintiff had an opportunity to mitigate his loss and failed to take it’. Any risk of prejudice to the defendant could, in any event, be corrected by a direction to the jury to disregard the doctor’s evidence about ‘an offer’. If, contrary to that submission, I formed the view that the jury should be discharged, Ms Hartley urged me to continue to hear the trial as a cause, without a jury.
The legal principles relevant to whether a jury should be discharged in light of irrelevant or prejudicial evidence were most helpfully summarised by Kyrou JA in Reza v Summerhill Orchards Ltd.[4] I have taken particular note of the following passages:[5]
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. …
If 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. 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. 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. 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. …
The whole trial must be considered in the context in which it was conducted.
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. 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. The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. 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. The capacity of juries to do so is critical to ensuring that proceedings are fair.
[4](2013) 37 VR 204 (Reza), [43]-[52], approved in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (2014) 42 VR 236, [199] (Whelan JA, Tate JA agreeing).
[5]Reza, [43], [46], [49]-[50] (citations omitted).
Mr Curtain drew my attention to the considerations set out at [48] of Reza, and submitted that these matters required that the jury be discharged in this case. I have had careful regard to those considerations but, as I explain below, have reached the contrary conclusion.
As to the nature of the irrelevant evidence and the context in which it was adduced,[6] I do not consider the mention of a possible financial offer by Dr Papachristos to have the irremediably prejudicial effect that the defendant contends. In its immediate context, the evidence was no more than an explanation of what the doctor presumed his patient to have been referring to when he said that he felt ‘as if he wants to accept any offer to finish everything off’. The evidence was not to the effect that any offer had been made to Mr Tragas by Bob Jane Corporation. Any risk that it might be understood that way was dealt with by directing the jury to disregard the evidence.
[6]Reza, [48(a)].
The broader context in which the evidence was adduced is also significant. Ms Hartley was seeking to address a suggestion that had been made in cross-examination that Mr Tragas had declined the possibly beneficial treatment of a neurostimulator on the advice of his lawyer. That suggestion was not put to Mr Tragas in cross-examination of him. I have already made clear my concern that, if that contention is pursued by the defendant, there may be an issue about compliance with the rule in Browne v Dunn.[7]
[7](1893) 6 R 67.
Otherwise, the cross-examination on the 13 May 2016 consultation had no apparent relevance to any issue in the trial. Mr Curtain argued that the cross-examination was necessary to address the evidence of Dr Papachristos that getting permission for a neurostimulator was ‘a bit like pulling teeth’.[8] That evidence might, he said, be taken as criticism of the defendant and so was properly addressed in cross-examination. I disagree. There is no suggestion that Bob Jane Corporation made decisions about paying for medical treatment for Mr Tragas, and nor could there be. Ms Hartley told the jury in opening that medical and like expenses are not an issue for them in this trial. They are a matter for the Victorian WorkCover Authority, which is not the defendant here. Workers compensation entitlements are generally irrelevant in a proceeding such as this and should not be referred to unless specifically relevant to an issue to be determined by the jury.[9]
[8]Transcript 416:16-20.
[9]Reza, [44].
As to the weight to be attached to the irrelevant evidence,[10] in the context of the trial to date it has very little weight. The evidence was a brief reference by Dr Papachristos to his presumption that when Mr Tragas said he felt like accepting any offer, he was referring to a financial offer. There was no suggestion that any such offer had in fact been made, either by the defendant in this proceeding or by WorkCover in related workers compensation proceedings.
[10]Reza, [48(b)].
The manner in which the reference to the irrelevant evidence was made,[11] and the context in which it occurred, is set out above at [2] to [3] and [12] to [14].
[11]Reza, [48(c)].
I have already taken the remedial action of directing the jury to disregard the evidence about the 13 May 2016 consultation, both in cross-examination and re-examination.[12]
[12]Reza, [48(d)].
Senior counsel for the plaintiff, Ms Hartley, acknowledged in the absence of the jury that the evidence of Dr Papachristos about a ‘financial offer’ was ‘hardly ideal’.[13] But the evidence has been given and, unlike a submission, cannot be retracted by counsel.[14] However, the evidence was interrupted by a swift objection by senior counsel for the defendant and, when the jury and the witness returned to the courtroom, Ms Hartley prudently did not ask any more questions about the 13 May 2016 consultation.
[13]Transcript 535:5.
[14]Cf Reza, [48(e)].
As to the nature of the dangers to which the defendant was exposed,[15] and the probable effect of the irrelevant evidence on the jury,[16] the evidence would have to be misunderstood, in my view, to be regarded as disclosing (or even suggesting) that Bob Jane Corporation had made an offer to Mr Tragas to resolve this proceeding. Mr Curtain agreed that, as well as being aware of the workers compensation system generally, juries may be taken to be aware that claims are often compromised.[17] Against that background, I consider that the risk of the jury misunderstanding the doctor’s evidence about a presumed financial offer was dealt with by my direction to disregard the evidence.
[15]Reza, [48(f)].
[16]Reza, [48(g)].
[17]Transcript 541:13-18.
Overall, I do not consider that the evidence complained of might so seriously affect the proper conduct of a fair trial that I should discharge the jury. Although the doctor’s evidence about an offer, and the way in which it was led, was ‘hardly ideal’, I do not agree that it could have the prejudicial effect contended by the defendant. My direction to the jury to disregard the evidence as irrelevant should be sufficient to guard against any risk that it might have that effect. For completeness, I note that the transcript of the trial to be provided to the jury will not include page 423, lines 17 to 29 and page 432, line 14 through to page 436, line 9.
ANNEXURE – RELEVANT TRANSCRIPT EXTRACTS
Examination in chief of Dr Papachristos by Ms Hartley (Transcript 415:24-416:20)
What about future treatment? Do you think there's anything available that would make a difference to his condition?---Look, potentially, again, it – you could ask other people who would be experts. There's always been, ah, the possibility of having, um, spinal-cord stimulation. I think, ah - - -
What is that, to your understanding?---My understanding. Um, it is basically, you put an electrode or you put a wire, effectively, into the area, the injured area, the nerve that controls that area and – and fire it off, which stimulates the nerves to block, kind of, the pain that's being caused. It's been, ah, recommended by Dr Richard Sullivan, who's a pain specialist and Professor Bittar, who's a neurosurgeon who's seen him. I think there is a problem there with – my understanding is that permission from insurers to pay for that hasn't – hasn't been approved. So that could be a potential thing. I don't know – I don't know enough about it to tell you the likelihood of success but I think – I know – I'd – I'd be trying it. I'd be wanting him to have it. I think he's wanted to have it but there's been, again, the Medico Legal, um, the legal stuff, I think, is always a bit of a block in certain areas and just, yeah, that's - - -
And in what way?---Oh, getting permission is often – it's a bit like pulling teeth. You just gotta – it just delays everything and things are not always done the same way would be done if someone was not, um, involved in – in legal proceedings. That's a common experience.
Cross-examination of Dr Papachristos by Mr Kumar (Transcript 423:17-29)
Do you have your note of 13 May 2016?---Ah, yes.
And if you look there, there's a note that says, "Approve for neurostimulation but advised by lawyer that accepting this will compromise his case and delay it further"?---Yes, that's right.
Okay. So your understanding then was that if he wanted the neurostimulator at that time, he could have it?---Ah - - -
But he'd been advised not to?---He'd been advised not to. I'm not sure – I – yes. I don't know why he was advised not to but - - -
But advised by his lawyer?---I think so, yes. Yes, well, yes, absolutely.
Re-examination of Dr Papachristos by Ms Hartley (Transcript 432:14-436:9)
You were asked about a note of 13 May, I think it's 2016, let me just look back – 2015 or 2016, just bear with me?---13 May, did you say?
2016?---Yes?
I just wonder if you could read that note to the court?---12 May 15?
No, the 13th May 2016, sorry?---Oh, sorry.
Cross purposes?---Okay. Well, what I've written is, "Mood is very depressed" - - -
And, perhaps just stopping you there, when you note that is that an observation you make? Is it something that he tells you? What leads you to write a note like that?---Probably more what he told me, I would think, initially, and – and, then – I would believe it's what he told me.
Yes?---Ah, shall I keep reading?
Yes, please?---"Seen by WorkCover" - - -
MR KUMAR: Well, Your Honour, I object to this re-examination in the context of the cross-examination of this consultation. I've only dealt with one very narrow part of it, and it's not a re-examination in respect of the every – every aspect of the consultation that's discussed.
HER HONOUR: How does it arise, Ms Hartley?
MS HARTLEY: Well, Your Honour, the context of the note, in my submission, is important, because there's issues later on in the note about legal matters and contribution to depression, which I wanted to ask.
HER HONOUR: Because I don't have the note.
MS HARTLEY: Yes.
HER HONOUR: So I'm at a bit of a loss as to where this might be going.
MS HARTLEY: Sorry, Your Honour.
HER HONOUR: Perhaps remind me how it came up in cross-examination.
MS HARTLEY: It came up that there were questions asked about neuro stimulation and having legal advice about that.
HER HONOUR: Yes.
MS HARTLEY: So a part of the note was read. If Your Honour could bear with me a moment. So I understand my friend is objecting to the note being read on the basis that he took the witness to only part of the note, and the plaintiff's submission about that, Your Honour, is that to make sense of that part of the note it's perfectly reasonable to take the witness to the note - - -
HER HONOUR: Yes.
MS HARTLEY: - - - so that he can look at the context and form some views about it.
HER HONOUR: Yes, I agree with that, and I also noted that that was not a matter that was put to the plaintiff in cross-examination. Might be a matter that one of you takes up later.
MS HARTLEY: A further point, yes, Your Honour. So, perhaps, just to avoid another complicating problem, I might just read the line after, "Mood is very depressed", with a little deletion and then perhaps Dr Papachristos can take over from there, if that's in order, Your Honour.
So did you make reference in your notes to the plaintiff seeing Mr Brazenor?---Yes, he told me he saw him, yes.
Yes, and have you recorded, then, his account of matters to do with that consultation?---Yes, absolutely.
And what did you record?---Should I read out – what should I not read out?
Just the first two words of that line. So if you could start from "Mr Brazenor"?---Okay, "Mr Brazenor, who was very rude and negative towards him, came away feeling very 18 upset, was told that he should go back to work as he is a malingerer".
Perhaps just stopping you there, is that an entry that relates to evidence that you've given earlier about that matter?---Yes.
All right. And then you - - -?---It's probably more specific, now, but that was – yes, where we mentioned it before.
All right. And then do you go on to deal with his mood?---Yes. The initial part is his reporting, "Mood has been very depressed since then, feels helpless as he cannot do anything useful around the home or with his life, feels as if the last three and a-half years have been wasted. Has conciliation hearing in October. Has court hearing in February 2017. Feels as if he wants to accept any offer to finish everything off. Approved for neuro stimulation, but advised by lawyer that accepting this offer will compromise his case and delay it further", and then I've written, which is my observations I – of – of the situation, "Looks even more depressed and upset than normal. Pain is no different. Sleep disturbance is no different. Counsels" - - -
And then you go on about some treatment - - -?---Yes.
- - - that you then offer. So I just wanted you to have the whole context of that note, because in relation to that line that deals with the neuro stimulation, there's reference to an offer, and there's, as you've read it, earlier references to offers, and I just wanted to clarify what offer you were referring to in that line that deals with the neuro stimulator?---What I took it to be is an offer to, ah – I – I presume a financial offer to, ah - - -
MR CURTAIN: Your Honour, I object to this.
HER HONOUR: Yes.
MR CURTAIN: It's most improper that any discussion like this be taking place.
HER HONOUR: I thought you were seeking to establish some context for what's put about "approved for neuro stimulation".
MS HARTLEY: Yes.
HER HONOUR: That doesn't go into the question of offers or not offers.
MS HARTLEY: Well, I'm just really seeking to clarify, in terms of that matter, whether the offer related to the neuro stimulator, or the offer related to legal matters that are being referred to just above it. That's all.
HER HONOUR: Well - - -
MS HARTLEY: So I - - -
MR CURTAIN: Your Honour, there's a matter of law I wish to raise in the absence of the jury.
HER HONOUR: Yes, I think that's fair enough. Would you please excuse us, jury. This might be a good time for your mid-morning break.
(at 11.57.20 jury left the court.)
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