Youfen Deng v FYF Pty Ltd (Ruling No.3)
[2023] VCC 1608
•7 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-00998
| Youfen Deng | Plaintiff |
| v | |
| FYF Pty Ltd | Defendant |
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JUDGE: | Ginnane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2023 | |
DATE OF RULING: | 7 September 2023 | |
CASE MAY BE CITED AS: | Youfen Deng v FYF Pty Ltd (Ruling No.3) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC1608 | |
RULING
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Subject: Practice - Trial conduct
Catchwords: Failure to make proper discovery – further discovery made while opposing counsel cross-examining – no explanation for delay in providing documents that had been in possession of solicitors before commencement of trial - complaint that defendant case materially altered by reason of further discovery – ample chance to consider and cross-examine on further discovery – prejudice of late discovery not significant – damaging effect of additional discovery at best minimal and potentially at most advantageous to aggrieved party – concerns outweighed by other discretionary considerations – application refused
Legislation Cited: Civil Procedure Act 2010
Cases Cited:Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2014] VSCA 3; 42 VR 236; Reza v Summerhill Orchards Limited [2013] VSCA 17
Ruling: Application to discharge jury refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. Frederico with Ms C. Shambrook | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G. Hevey with Mr T. Storey | Russell Kennedy Lawyers |
HIS HONOUR:
1Yesterday, in the late morning and prior to the luncheon adjournment, Mr Hevey who appears with Mr Storey for the defendant, raised an issue concerning the extent of, and lateness of discovery by the plaintiff. Mr Hevey said that he had been alerted whilst on his feet and cross-examining the plaintiff to the receipt of an email by his instructing solicitors from the plaintiff’s instructing solicitors containing a clinical file from Westgroup Medical of the plaintiff’s clinical care and that the file’s collation bears the date 16 August 2023. Mr Hevey anticipated that investigations would identify that the clinical file had not been provided by way of the plaintiff’s obligation of discovery and despite the plaintiff’s solicitors having possession of and being in receipt of the clinical file since on or about 17 August 2023, it had only now been on-forwarded to the defendant’s solicitors. Mr Hevey asked that the jury, who I had sent outside while this issue was ventilated, be sent away until later this afternoon, to enable him to obtain better information regarding the file and its provenance, but he anticipated one consequence might be an application to discharge the jury.
2The jury having been sent out for their ordinary mid-morning break whilst these matters were canvassed, were brought back into Court and I explained to them that certain matters requiring attention had arisen and I would send them away until 3:00pm.
3Upon the resumption of the hearing at 2:15pm, Mr Hevey made application for the discharge of the jury. His application is based exclusively on the ground of prejudice suffered by the defendant due to the late provision of the contents of the clinical notes relating to the plaintiff. I pause here to note that at this point in time, the plaintiff remains under cross examination by Mr Hevey, and therefore, if the application fails and the trial proceeds, the plaintiff will not be required to be recalled for further cross examination.
4So as to properly understand the submissions made in support of the application to discharge, it is important that I set out some history and the course that the defendant’s cross examination of the plaintiff has taken to this point.
5The plaintiff worked as a cleaner employed by the defendant and worked at a motel complex in the northern suburbs of Melbourne. The plaintiff commenced employment in approximately 2009. She last worked as a cleaner for the defendant at the motel, in approximately November 2017. The plaintiff sues for damages for physical injuries sustained to the spine, right shoulder and right leg and loss of income throughout the course of her employment with the defendant as a cleaner and relies as well upon two incidents. She alleges that she twice fell to the ground while in the process of making beds and that as a result of her injuries, she has developed a psychological disorder and has been unable to be gainfully employed since.
6The defence relied upon is that if the plaintiff suffered injury in the performance of her duties throughout the course of her employment, then the defendant was not on notice of the plaintiff being at risk of injury in the performance of her duties. Moreover, in relation to the two falls the plaintiff said she suffered in the process of preparing beds in the motel rooms, the first of these is said to have occurred on 21 October 2014[1] and the second incident occurring on 9 March 2017.
[1] In the course of cross-examination, the plaintiff intimated that the date of the first fall may been 22 October 2014.
7As far as the first of these two incidents is concerned, the defendant has been at pains in cross-examining the plaintiff, to suggest that there is no medical evidence of a contemporaneous complaint of it having happened. Based on the available discovery at the time counsel had commenced cross-examining the plaintiff, there was good reason to advance this proposition before the jury. Records that had been discovered by the plaintiff, identify that she attended the Sunshine Hospital Emergency Department on 25 October 2014 and attended her General Practitioner Dr Lo on 27 October 2014, but at neither attendance is any complaint recorded that the plaintiff sustained an injury as a result of a fall while performing her work duties on about 21 or 22 October 2014. There is, nonetheless, recorded both by the Emergency Department and by Dr Lo, a complaint by the plaintiff of suffering pain for the better part of the previous year.
8The further discovery made by the plaintiff of the clinical file of Westgroup Medical, contains a consultation that the plaintiff had with Dr Ng on Wednesday 13 August 2014, and it included the following entry:
Right backache and shoulder ache when working-occupation related works as housekeeping in a hotel.
9The entry, therefore, is an additional account of the plaintiff correlating a cause of her back and shoulder ache with her work performance and the duties she performed when employed by the defendant. The note of course relates to an attendance a little more than two months before the first of the two incidents relied upon by the plaintiff of suffering a fall and injury while making up a bed.
10Mr Hevey was not able to cross-examine the plaintiff about the entry from 13 August 2014, at any earlier stage naturally enough, because he had no knowledge of it.
11I do not accept and I do not consider that the entry from the clinical note is of sufficient prejudice that it cannot be cured by the plaintiff being subjected to cross examination on it. It does not relate to a new issue but instead is one additional clinical entry of a matter about which the defendant has already had notice, but recognising of course, that the plaintiff will be able to rely on in it furtherance of her claim before the jury that the work processes that she had been engaged in were productive of injury.
12The next pertinent and claimed prejudicial entry in the clinical notes relied upon by Mr Hevey is from 24 October 2014. This entry contains an attendance by the plaintiff on Dr Ng and the entry reads:
1 year hx of right lower limb sciatica a/w numbness and weakness work as housekeeping in the hotel recently quit the job as severity increased
13The note went on to address other irrelevant conditions and complaints as well as recording that a CT of the lumbar spine was requested.
14Mr Hevey submitted that the note placed him in a difficult position. Not only did it provide a further account by the plaintiff of having suffered pain arising from her work as a housekeeper, but contrary to the plaintiff’s oral evidence that she stopped work after the fall on the 21 or 22 October 2014 because of injury, it suggests she “quit” her employment.
15Dealing with each of these observations made by Mr Hevey in turn: First, although the entry provides another account by the plaintiff of her work being attributable to pain and injury, the entry is close in time to the like comment recorded in the Sunshine Emergency Hospital entry, as well as the entry made by Dr Lo on 27 October 2014, both of which had been discovered. The prejudice is not one caused by a new or unexpected or a wholly different narrative. Moreover, insofar as the note constitutes yet another clinical entry, as far as the defendant is concerned, it too fails to mention the occasion of the fall upon which the plaintiff relies and said to have occurred on 21 or 22 October 2014. In that respect, as opposed to prejudice to the defendant, it may well provide it with some further forensic advantage.
16Mr Hevey submitted that the defendant had been prejudiced because of that part of the entry that refers to the plaintiff having “quit” her employment as opposed to not returning to it, because of the extent of her pain.
17It strikes me that the account of “quitting” is just as advantageous to the defendant as it is potentially prejudicial, given the defendant’s arguments that the plaintiff should not be believed when she said that she stopped work after the first fall because of pain from injury. I do not see how the defendant would be prejudiced by the jury hearing Mr Hevey tackle the plaintiff, if he elected to do so, on the point, and take her to the apparent inconsistencies between her evidence and the note of entry.
18An entry of a clinical attendance on Tuesday 11 November 2014, contains a note from Dr Li that reads:
hx of right lower limbs sciatica a/w numbness and weakness FOR 12/12 CT result show; degenerative changes
19This note is of no different character than earlier entries that had been discovered and recounts a history of a year’s previous pain.
20A clinical entry from Monday 18 May 2015, includes:
back pain much improved after doing light duty work.
21The plaintiff did not assert in her evidence in chief to having been placed on or having performed light duties following the first fall and before her limited return to work following the second fall.
22An entry dated Saturday 30 May 2015, includes:
unsure of paper work involved for chronic back pain feels that degenerative [sic] problems are due to long hours at the job have been working for 5 years request for a letter to employer explained the paperwork procedure -to speak to human resources on forms needed to be filled up? WorkCover
23Mr Hevey submitted that this note was particularly egregious in the context of the practitioner Dr Ng, seemingly having canvassed with the plaintiff and explained to her the forms necessary to possibly commence a claim for WorkCover. Mr Hevey submitted that if the content of that note was put to the jury in re-examination by counsel for the plaintiff, it could form a basis by which the jury might find that the defendant had been put on notice of the plaintiff having suffered injury from work. Thus, the employer “fixed” with such notice, or knowledge of the same, but not having acted to remediate any risk of ongoing injury in the ongoing performance of the plaintiff’s work duties, might be at risk of liability by a jury.
24Mr Hevey submitted that the defendant does not know what Dr Ng did, and if he ever communicated with the defendant, about any matter preliminary to, or in anticipation of a claim. Ms Frederico in seeking to meet this particular objection, submitted that if such a letter ever came to fruition, it would have been received by the defendant and the defendant should have discovered it but it had not. I agree with Mr Hevey that this is a rather disingenuous answer to the objection. Mr Hevey sought to meet it in any event, on the basis that all his client could know was that it had not received a notice of a claim or had the same passed onto it, but that to leave the jury to believe that such a letter if not sent was contemplated would cause prejudice to the defendant.
25I reject this as a valid concern. The defendant cannot be put on implied notice, that is to say, put on notice that the plaintiff was at risk of injury by reference to a discussion between a doctor and a patient about a letter if no such letter came to fruition or communication made. No such letter has been discovered by the defendant as part of its additional discovery or its original discovery. The evidence at this stage and that exists on this point is that there is no notification that was made to the defendant of the plaintiff having suffered injury or being at risk of injury because of the work processes in which she was engaged. The discovery of the clinical note of entry of 30 May 2015 does not alter or affect what has already been pursued by Mr Hevey against the plaintiff in the course of cross-examination.
26A further clinical note the subject of potential prejudice, and argued by the defendant as sufficient to cause a discharge of the jury, is an entry from 23 April 2018 of a consultation with Dr Li that included as follows:
fall over today feels sore around left-sided head, no nausea/no vomiting/no LOC no neck stiffness left arm no redness/no swelling limbs power/tone normal discussed it feels unwell/nausea – emergency/ssh
27Mr Hevey contended that the entry identifies and invites forensic and probative exploration by the defendant before the jury of yet a further and possibly unrelated injury – a novos actus interveniens if you like. That is a long bow to draw, but again, I am hard pressed to see it doing anything other than enabling the defendant to further isolate or separate out the plaintiff’s condition from work relatedness. The stage that cross-examination has reached and the questions put by Mr Hevey has not caused embarrassment or prejudice, if the matter is now pursued and should the defendant choose to do so.
28In my judgment, it cannot inevitably amount to a proper basis to discharge a properly empanelled jury because of the late provision of discovery. There may be occasions when what is discovered, is discovered so late, and is so prejudicial to the aggrieved party, that the only manner to address such prejudice is the discharge of the jury. However, it is highly relevant in my discretionary consideration of the issues at play in this application, that the plaintiff remains under cross examination. As well, I am not persuaded that it is a sufficient basis to discharge the jury because the case concept sought to be developed by the defendant might need to be recalibrated. What obviously does not need to change, based on the additional discovery, is the contention already advanced by Mr Hevey of an absence of a contemporaneous complaint by the plaintiff of the first fall. The balance of additional discovery is largely a reinforcement of a professed history of pain associated with work performance, and about which the defendant was already on notice from the discovery made by the plaintiff.
29Mr Hevey submitted that if I did not discharge the jury, and merely explained to it that the delay had been occasioned by the fact that the plaintiff had not provided and complied with its obligations in making discovery under the Rules of Court,[2] and pursuant to the Civil Procedure Act 2010, that effectively the plaintiff had escaped with a slap over the wrists. I disagree. But in any event, I need to be mindful in ensuring that any comment I might make to the jury does not inadvertently and inappropriately cause prejudice to the plaintiff.
[2] See County Court Civil Procedure Rules 2018 (Vic).
30This is not an instance where the jury has been exposed to prejudicial material or a case in which suggestions arise that a juror or jurors are not exercising their obligations as jurors conscientiously. At this point, the jury knows nothing further other than the fact that to this point in time the defendant has challenged the reliability of the plaintiff in terms of a recollection of events and has challenged the plaintiff about the lack of medical recourse in the face of the first of two falls she says she suffered on 21 or 22 October 2014. It cannot be sustained that the additional discovery for the first time gives rise to the plaintiff’s complaint to medical practitioners of injury sustained or believed to have been sustained in consequence of the work processes.
31I have had regard to the fact that this proceeding is now in its third day. The plaintiff has been cross-examined for some considerable time already.
32The plaintiff gives all of her evidence through the agency of an interpreter and that itself adds to the time occupied.
33To discharge the jury now, would require a further and substantial period of time to elapse before a trial could recommence before a new jury.
34The principles guiding a decision whether to discharge a jury are set out in Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd.[3] Therein, Whelan JA considered a number of recent cases and placed particular emphasis on the judgement of Kyrou AJA (as he then was) in Reza v Summerhill Orchards Limited.[4] At paragraphs 198 to 199 Whelan JA said:
The fundamental principle is that every litigant is entitled to have his or her case fairly tried free from the intrusion of any extraneous matter calculated to influence the jury.
The application of that fundamental principle in relation to the situation under consideration here was addressed by Kyrou AJA in Reza, in terms which I would respectfully adopt. Relevantly, he said:[5]
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 authorative 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.
…
[3] [2014] VSCA 3; 42 VR 236.
[4] [2013] VSCA 17 (‘Reza’).
[5] Reza [46] – footnotes and citations of authority omitted.
35Here, the question is whether the defendant has suffered prejudice, and if so, whether the prejudice is of such a measure that it cannot be afforded an equal footing of fairness in the conduct of its defence due to the serious omission of the plaintiff to provide discovery of Westgroup Medical’s clinical file and that to compel it to continue the cross-examination of the plaintiff in light of some of the entries contained in the additional material, would be so prejudicial to it in light of how its cross-examination has so far been conducted, that the only fair and just course is to discharge the jury.
36I am satisfied that the late discovery is prejudicial in the sense that it may require the defendant to revisit or canvass again, some matters and some circumstances on which the plaintiff has already been cross-examined. No explanation for the failure to make discovery has been proffered on behalf of the plaintiff’s solicitors as to why the file apparently in its possession since 17 August 2023 was not provided until yesterday. Certainly counsel for the plaintiff had them but chose not to open on them. She was not obliged to do so. Counsel said, and I accept her assurance to me, that she had assumed they had been served on the defendant.[6] Given that on one view much of what the notes convey do not assist the plaintiff one can perhaps appreciate why they were not opened on, or evidence about them led.
[6] Transcript 214, Line 4-5.
37However, an assessment must be made as to whether, in the context of the proceeding as a whole, there is a real risk that the conduct complained of, and the steps the defendant may need to take in the further cross-examination arising from the late discovery, will distract the jury from the proper performance of their duties or unfairly prejudice the defendant. For the reasons I have explained, I am not so satisfied and accordingly, I am not satisfied that the defendant has established a basis by which the jury should be discharged. The defendant has not been precluded from meeting any of the criticisms that it might think arise from the provision of such notes and their potential use by the plaintiff in re-examination.
38In my view, the appropriate course in this case is for the jury to be thanked for their patience, and for me to explain to them that the delay has been occasioned by the provision of late discovered documents by the plaintiff and the same constituted a failure of their duty to provide the same to the defendant prior to the commencement of the trial, but that in fact only occurred during the course of yesterday’s hearing.
39I would propose to add, that the jury should not be in anyway critical if counsel for the defendant revisits certain aspects in cross-examination that have already been touched upon, in light of the provision to the defendant’s solicitors only yesterday of these further documents. Furthermore they must not speculate why the additional discovery was only now provided.
40As to the delay the plaintiff’s conduct has caused the conduct of the trial, that matter can be addressed by way of a cost’s adjustment.
41I have read into the transcript and circulated to counsel a draft of my intended comments to the jury. Neither counsel taking issue with its contents, I will have the jury back.
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