Zoltan Radosavljevic v Residential Commercial Industrial Roofing Pty Ltd
[2018] VSCA 337
•11 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0073
| ZOLTAN RADOSAVLJEVIC | Applicant |
| v | |
| RESIDENTIAL COMMERCIAL INDUSTRIAL ROOFING PTY LTD | Respondent |
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| JUDGES: | MAXWELL P, BEACH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 November 2018 |
| DATE OF JUDGMENT: | 11 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 337 |
| JUDGMENT APPEALED FROM: | 28 May 2018 (Judge K Bourke) |
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TORT – Negligence – Employer and employee – Breach of duty – Applicant sustained eye injury – Employer supplied protective glasses – Whether applicant was wearing glasses – Whether provision of glasses sufficient response to risk of injury – Jury verdict for employer – Whether judge’s directions were erroneous – Impugned directions related to matters not in issue – No exception taken – Leave to appeal refused.
TRIAL – Jury trial – Directions to jury – Defining of issues – Responsibility of counsel to define issues – Responsibility of counsel to identify necessary directions – Aids to juror comprehension – Judge gave PowerPoint presentation to jury – Whether appropriate – Whether jury directed to use PowerPoint in conjunction with oral instructions – No exception taken – Advantages of written aids to comprehension considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P H Solomon QC with Mr S E Gladman | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr J P Gorton QC with Mr M J Hooper | Minter Ellison |
MAXWELL P
BEACH JA
HARGRAVE JA:
Summary
In May 2010, Mr Zoltan Radosavljevic (‘applicant’) commenced employment as a roof plumber with Residential Commercial Industrial Roofing Pty Ltd (‘employer’). On 3 June 2010, he suffered injury in the course of this employment when part of a screw struck his right eye. The injury occurred as the applicant was attempting to secure a steel batten to a steel frame.
In March 2017, the applicant commenced a proceeding in the County Court against the employer, claiming damages in respect of his right eye injury and a consequential psychiatric injury. The applicant’s claim was in negligence and for a breach of the statutory duty imposed by reg 3.1.1 of the Occupational Health and Safety Regulations 2007. The employer denied liability and alleged that the applicant had been contributorily negligent by failing to wear safety glasses.
In May 2018, the matter came on for trial before a judge and jury. The issues in the trial were clearly defined. The first was whether, at the time of the accident, the applicant was wearing the safety glasses which the employer provided for employees to use when doing work of this kind. It was common ground that, if the applicant failed to satisfy the jury that he was wearing the glasses, his claim would fail. In the event that it was accepted that the applicant was wearing the glasses, the second issue was whether provision of glasses of this kind was sufficient to discharge the employer’s duty of care.
The jury found that there had been no negligence. Pursuant to the jury’s verdict, the judge entered judgment for the employer. The applicant now seeks leave to appeal, on grounds which all concern the directions which the judge gave the jury, including as to the judge’s use of a PowerPoint presentation in giving her directions on legal issues.
For reasons which follow, we would refuse leave to appeal. The grounds fail for two principal reasons. The first is that they relate to matters which were not put in issue by the applicant’s representatives at trial. Accordingly, even if there had been any error in the directions — and we are not persuaded that there was — this would not have affected the jury’s decision on the matters in issue.
Secondly, none of the matters now complained of was the subject of exception taken by the applicant’s trial counsel. Axiomatically, it is for trial counsel to identify the matters in issue and to ensure that the directions given by the judge equip the jury to decide those issues. The absence of exception will ordinarily be a powerful indication that what is subsequently said to have been an error in direction did not affect the fairness of the trial.
We wish also to endorse the trial judge’s use of a PowerPoint presentation as an aid to the delivery of her oral instructions to the jury. For reasons set out below, this was an entirely appropriate step for her Honour to take.
Procedural background
The applicant’s proceeding was heard over some nine sitting days. On 17 May 2018, the jury returned a verdict in favour of the employer, giving the following answers to the following questions:
1.Was there negligence on the part of the [employer] which was a cause of the plaintiff’s injury, loss and damage?
No.
2.Was there a breach by the [employer] of its obligations pursuant to the Occupational Health and Safety Regulations that was a cause of the plaintiff’s injury, loss and damage?
No.
On 28 May 2018, the trial judge made orders dismissing the applicant’s proceeding.
The applicant now seeks leave to appeal and (if leave is granted) to appeal against the dismissal of his proceeding. The applicant’s proposed grounds of appeal relate to the judge’s charge to the jury, the use by the judge of a PowerPoint presentation during the charge, and the answer the judge gave to a question from the jury. Specifically, the proposed grounds are as follows:
1.The trial judge erred [during her charge and in giving a PowerPoint presentation] in misdirecting the jury about the law governing their use of the evidence that the [employer] provided its employees with safety goggles after the applicant suffered the injury to his right eye.
2.In responding [to a] question [from the jury] asking for elaboration on ‘the response of the reasonable employer’, the trial judge erred in failing to redirect the jury about the law governing their use of the evidence that the [employer] provided its employees with safety goggles after the applicant suffered the injury to his right eye.
3.The trial judge erred [during her charge in giving her PowerPoint presentation] in:
(a)introducing the issue of whether the risk of injury was reasonably foreseeable when neither party had raised that issue in the proceeding;
(b) failing to direct the jury in law that:
(i)the risk of injury to the applicant was reasonably foreseeable if a reasonable person in the [employer’s] position would have considered that the risk was not far-fetched or fanciful; and
(ii)the applicant was not required to prove that the precise manner in which he suffered the injury to his right eye was reasonably foreseeable; and
(c)failing to provide any explanation to the jury about how the law applied to the evidence adduced at the trial.
4.The trial judge erred in providing the jury with copies of her PowerPoint presentation in circumstances where she failed to direct them that:
(a) the charge consisted of what she told them orally; and
(b)the PowerPoint presentation was necessarily an incomplete statement of the law that was relevant to their verdict.
Before dealing with the proposed grounds of appeal, it is necessary to describe the evidence given at trial that relates to those grounds. It is also necessary to refer to some of the discussion between the judge and counsel about her Honour’s charge, together with those parts of the judge’s directions to the jury that relate to the grounds.
The evidence at trial
The applicant gave evidence at trial as to the circumstances in which he suffered injury. He also called a qualified engineer, Mr Edward Dohrmann, to give expert opinion evidence on liability. At the time of the incident, the applicant was working with an apprentice, Matthew Mackey. At trial, the employer called Mr Mackey and a qualified engineer, Dr John Culvenor, to give his expert opinion on liability.
The evidence at trial was that the employer provided protective eyewear which it directed its employees to wear when performing certain kinds of work, including ‘work close to the face on a vertical surface’. The applicant gave evidence that, at the time he suffered injury, he was using an A-frame ladder to secure battens to the steel frame of a wall. The battens were secured by screws, and the applicant was using a cordless power drill with a magnetised Tek bit that matched the heads of the screws. He placed a screw into the Tek bit and drilled it through both the batten and the frame.
The applicant said it was necessary for him to apply significant force on the drill to drive the screw through the batten. The applicant’s evidence was that as he did this, the screw started to slip as though it were crumbling. In a split second, everything became unstable. The applicant said he fell forward, dropping the drill and the batten, and hit his head on the wall. At some point, part of the screw flicked back and struck his right eye. The applicant gave evidence that he was not sure whether that happened before or after his head hit the wall. It all happened very quickly.
The applicant gave evidence that he felt pressure and heat in his right eye, and he removed the screw fragment that was lodged there. He noticed a clear discharge from his right eye, running down his clothing. He was subsequently taken to hospital, where it was found that the screw fragment had penetrated his right eye, rupturing his cornea and damaging the lens.
At trial there were two principal issues in relation to liability: firstly, whether the applicant was wearing the safety glasses provided by the employer at the time of the incident; and secondly, whether the employer’s provision of the safety glasses to its employees was a reasonable response to the risk of injury presented by the task of drilling. The employer’s primary case was that the applicant was not wearing any safety glasses at the time of the accident, and for that reason the applicant’s claim should fail.
The applicant gave evidence that he was wearing the safety glasses provided by the employer when the injury occurred. He said that he thought that the safety glasses ‘just popped off because they weren’t there any more’ and he did not know what happened to them.
The applicant was cross-examined extensively about his evidence that he was wearing safety glasses at the time of the accident. He was cross-examined by reference to histories he gave and statements made in written documents. It was suggested at one point in the cross-examination that he had given three versions of events and he was asked how he reconciled these versions. He answered by saying, ‘Well, it’s not really three versions’.
In cross-examination, the applicant said that the glasses did not fit him tightly and they did not fully cover his face. He conceded, however, that he could not provide a full explanation about how they had been dislodged. When asked how the screw fragment could have entered his eye if he was wearing the glasses, the applicant said, ‘I’m not sure, it’s a quick, violent movement, I suppose’.
Matthew Mackey gave evidence that he did not see the accident. In cross-examination, he was taken to a witness statement he provided in May 2014, in which he stated: ‘I have no reason to believe [the applicant] was not wearing safety glasses at the time he was injured’. Mr Mackey denied that this part of his statement accorded with his belief. In re-examination, he said that he believed the accident would not have occurred if the applicant had been wearing safety glasses and that he did not see the applicant wearing safety glasses in the period leading up to the accident.
Evidence was tendered at trial in relation to a change in the employer’s work system after the accident. (We will refer to this as the ‘post-accident evidence’.) Following the accident, the employer provided safety goggles, secured by an adjustable elastic band, to its employees. A WorkSafe Victoria report dated 4 June 2010 was tendered. This report stated that the SWMS (Safe Work Method Statement) ‘was modified [on 4 June 2010] to state that when wall cladding is being undertaken, “must have wrap around safety goggles/glasses when screwing off wall battens”’. Evidence was also given that, at a meeting of employees held some months after the accident, a representative of the employer said that ‘everyone is wearing goggles now’ and that any employee who failed to do so would be dismissed.
Mr Dohrmann gave evidence on behalf of the applicant that:
(a) if the applicant fell forward as he described, then the glasses could have ridden up onto his forehead;
(b) depending on the angle of the applicant’s head and the screw fragment’s direction of travel, there were access points both above and below the glasses — but there were no practical access points around the goggles;
(c) screw failure was a rare event, but it did occur from time to time;
(d) having regard to the risk that a screw might fail and that a screw fragment might then ricochet from an adjacent surface, the glasses were inadequate to mitigate the risk of injury;
(e) the glasses were not a reasonable choice for the cladding tasks because they were less secure than the goggles and failed to offer the same all-round protection from flying objects;
(f) even if the glasses were properly placed on the applicant’s head, they would not necessarily have been adequate to prevent his eye injury;
(g) in the circumstances of this case, the employer could have avoided the risk that the applicant might suffer an eye injury by:
(i) providing more secure eyewear that offered all-round protection from flying objects, such as the goggles;
(ii) conducting a risk assessment, which would have revealed the need for better and more appropriate eye protection than was offered by the glasses;
(iii) directing the applicant to pre-drill pilot holes in the frames, which would have reduced the risk of screw failure; or
(iv) directing the applicant to work in tandem with another worker, which would have allowed the applicant to operate the drill using both hands; and
(h) both the glasses and the goggles satisfied the relevant Australian Standards, but the goggles were more suitable to be used by the applicant in performing the cladding tasks because they provided all-round protection to the eyes.
Dr Culvenor gave evidence on behalf of the employer that:
(i) he had no reason to believe that the glasses (tendered as Exhibit A) would not comply with the Australian Standards, but he could not say that they did in fact comply;
(j) the glasses were a reasonable choice over the goggles for the cladding tasks;
(k) the glasses would have tolerated the impact of a screw fragment;
(l) workers were less likely to use the goggles than the glasses because the former were less comfortable, heavier, hotter and more prone to fogging;
(m) the goggles offered a much more secure fit and fuller, all-round protection than the glasses;
(n) it would have been possible for the applicant to work very effectively with the goggles;
(o) in the circumstances of this case, whether the goggles would have offered better protection than the glasses depended on the direction in which the screw travelled and the position of the applicant’s head — if the screw came from in front of the worker, the protection would be equal;
(p) there was insufficient time for the screw fragment to ricochet into the applicant’s eye before his head hit the wall;
(q) a risk assessment would not have revealed any notable safety flaws in the system used by the employer to perform the cladding tasks, including in the employer’s choice of protective eyewear;
(r) he doubted whether pre-drilling pilot holes was a safer system of work than using the screws the applicant was using, which were specifically designed to self-drill into heavy steel; and
(s) as far as safety was concerned, there would have been advantages and disadvantages in directing the applicant to secure the battens in tandem with another worker — on balance, however, that proposed system was probably no better than the employer’s system and it would not necessarily have reduced the risk of injury.
The judge’s charge and directions to the jury
At the conclusion of the evidence, and before final addresses, the judge informed the parties that her charge would be delivered using a PowerPoint presentation. A discussion ensued, during which senior counsel for the applicant[1] invited the judge ‘to resist that course in this instance’. Senior counsel said that he was ‘at a loss to understand as to what things are going to appear on the PowerPoint’, and he had not anticipated how his presentation of the applicant’s case might be affected by the judge’s use of a PowerPoint presentation. Additionally, he said that if the use of the PowerPoint presentation had been raised at the commencement of the trial then he might have sought leave to have slides of his own, dealing with matters that he wished to highlight to the jury. Counsel’s ultimate position, however, appears to have been that, ‘Your Honour’s charge is a matter for your Honour’.
[1]Not counsel who appeared in this Court.
The judge commenced her charge in conventional terms, assisted by a PowerPoint presentation as she had foreshadowed. The judge explained her use of the PowerPoint slides as follows:
I just say with these slides, I am doing this in the form of a PowerPoint presentation now, hopefully to break it up a bit so it is not me reading pages and pages of what I am obliged to put to you. In any event, you will get a hard copy of these slides later on. It might help you, it may not, but do not be worried if you have missed something because you will get them then. I am not giving them to you now because I am told by people who do PowerPoint presentations if you give them to people, they do not look at the PowerPoint presentation, they look at the pieces of paper.
The judge directed the jury on the law governing their determination of the standard of reasonable care that was applicable in the circumstances of the case. Referring to one of the PowerPoint slides, her Honour said:
Now looking then as to what would be the response of a reasonable employer in this case, you are to take into account, as you can see, those three boxes, when you consider if there has been a breach of duty and they are the magnitude of the risk, the degree of probability of its occurrence, so the chance of it occurring, and the expense and difficulty to address it.
The plaintiff says the [employer] should have done a number of things in the circumstance[s]: provide safety goggles; an alternative form of work; using two employees; or predrilling; and that it failed to conduct a risk assessment.
The [employer] says there was no issue with the work system or the glasses and that it did not have to respond to anything because it was not negligent and it was a safe system of work. If is for you to decide what response, if any, to foreseeable risk of injury was required of a reasonable employer in the [employer’s] position.
The slide is entitled ‘The response of the reasonable employer’ and is in the following form:
The judge then directed the jury on the law governing their use of the post-accident evidence. Referring to the next two slides of the PowerPoint presentation, her Honour said:
So you have heard in this case evidence called by the plaintiff [that] the [employer] provided safety goggles after the plaintiff was injured, and evidence about that is obviously the WorkSafe report where there is mention of during a visit at the site the next day the goggles were provided. The [employer] has given that answer in its answers to interrogatories and Matthew Mackey confirmed that that was the situation.
The plaintiff says with this alteration or this change in the system, that would have been such that would have prevented him from being injured. However, the fact that the [employer] made that change and provided goggles … does not prove that it breached its duty of care to the plaintiff by having a system of work and equipment as it was when the plaintiff was injured but it is evidence from which you could infer it was reasonably practicable for the [employer] to have made that change, providing goggles, before the plaintiff was injured, and that the cost of doing so was not excessive, which is what I just said to you is on that slide.[2]
[2]Emphasis added.
The first of the two slides on this topic was entitled ‘Post-Accident Changes to the Workplace’: [3]
The second of the two slides was entitled ‘However …’ and was in the following form:
[3]Emphasis in original.
At the conclusion of her charge, the judge provided the jury with copies of the PowerPoint slides and the transcript of the evidence. They were not, however, provided with the transcript of the parties’ closing addresses or the judge’s oral charge.
During the course of their deliberations, the jury advised the judge that they had a question. The judge told the parties that the jury had asked the question: ‘Can her Honour elaborate on the response of the reasonable employer?’ The judge said that the jury had referred to page nine of the PowerPoint presentation.[4]
[4]Being the page containing a slide headed ‘The response of the reasonable employer’. See [26] above.
Senior counsel for the applicant agreed with the trial judge’s suggestion that the jury should be redirected in accordance with the relevant part of the civil charge book. A little later in argument, he submitted that the redirection should extend to the post-accident change of work system, because it was relevant to the ‘expense and difficulty’ of addressing the risk of injury. This redirection would have involved reference to the two slides about post-accident changes to the workplace. The judge rejected the applicant’s submission to redirect on that topic.
Following the conclusion of the parties’ submission on an appropriate answer to the jury’s question, the judge redirected the jury as follows:
HER HONOUR: Thanks, members of the jury. I have been told you have a question … about the box that was headed ‘The Response of the Reasonable Employer’, is that right?
JUROR: Yes.
HER HONOUR: I will just redirect you in the standard terms as to what that means, okay, and I will remind you of what I said earlier. So the plaintiff alleges that the [employer] failed to provide him with a safe system of work and safe equipment. The plaintiff called evidence as to what a reasonable employer should have done about those matters.
In deciding what a reasonable employer should have done in response to foreseeable risk of injury and thus whether the [employer] breached its duty of care to the plaintiff, there needs to be balanced out particularly those three boxes in front of you — the magnitude of the risk, the degree of probability of its occurrence, and the extent to which any expense and difficulty and inconvenience in taking it balances out against the taking of alleviating action by the employer.
It is for you to decide what response, if any, to foreseeable risk of injury was required of a reasonable employer in the [employer’s] position … I cannot go back into the facts or any of the evidence. That is a direction as to the law on that point. So I hope that satisfies your enquiry, but that is all I am going to say about it at this stage. So I would ask you to go back into the jury room, thank you.
Ground 1: did the judge err in her directions about post-accident changes to the workplace?
In her oral directions, the judge charged the jury that the change made by the employer — to provide goggles after the accident — did not prove that the employer had breached its duty of care
by having [the] system of work and equipment as it was when [the applicant] was injured, but it is evidence from which [the jury] could infer it was reasonably practicable for [the employer] to have made that change, … and that the cost of doing so was not excessive.
The PowerPoint slides stated that the evidence of the later provision of the goggles:
does not prove that [the employer] breached its duty of care to [the applicant], however [the jury] can infer such changes were reasonably practicable for [the employer] … and the cost of doing so was not excessive.
The applicant contends that the jury should have been ‘told in clear terms’ that:
(a)the evidence [of the post-accident provision of the goggles] could not be used as an admission by the [employer] that its failure to provide the goggles to the applicant before the accident constituted a breach of its duty of care to him; and
(b)while the evidence of itself did not prove negligence against the [employer], it was relevant to the determination of that issue because it was capable of supporting an inference that the [employer] could have provided the goggles to the applicant before the accident with minimal expense and difficulty.[5]
[5]Emphasis in applicant’s written case.
The applicant submitted that the vice in the judge’s directions was that:
[T]here was an appreciable risk that the jury would not have understood that the inference [namely, that it was reasonably practicable for the [employer] to have provided goggles and that the cost of doing so was not excessive] was relevant to the issue of breach of duty, given that her Honour failed to provide any explanation to the jury about how that inference might be used and she had just directed them in absolute terms that the evidence ‘does not prove that the [employer] breached its duty of care to the [applicant]’.
We do not accept the applicant’s submissions on this ground. First, there was no suggestion at trial that the post-accident evidence could be used as an admission by the employer that its failure to provide goggles before the accident constituted a breach of duty. Accordingly, to have given a direction that the evidence could not be used as an admission by the employer would have created a false issue and would have been liable to confuse the jury.
Secondly, the oral direction given by the judge was a correct direction and accorded with principle. The fact that the direction might have been given in different or more detailed terms does not call into question the correctness of the direction actually given. While the summary language of the PowerPoint slides was less detailed than the oral direction, it did not detract from the correctness of the oral direction.
Thirdly, in looking at the language used in the judge’s oral direction to the jury, it is necessary to keep in mind that what a judge directing a jury is required to do is explain in clear and simple terms only so much of the law as the jury needs to understand to decide the case.[6] There is no reason to think that a direction commencing ‘While the evidence of itself did not prove negligence …’ would have better served that purpose than the direction actually given.
[6]Alford v Magee (1952) 85 CLR 437, 466 (‘Alford’).
Apart from the fact that the phrase ‘of itself’ adds little if anything to the clarity of the statement, the inclusion of those words might well have provoked a question from the jury as to their precise meaning, or the circumstances in which the relevant evidence might assist in establishing negligence. That issue was in fact correctly dealt with by the judge when she said that from the evidence of the post-accident change to the system of work, the jury could infer that it was reasonably practicable to have made the change prior to the accident.
Fourthly, the instruction which her Honour gave — about the post-accident provision of goggles being evidence from which the jury could infer that it was reasonably practicable to provide the goggles at a cost that was not excessive — was plainly an instruction relevant to the issue of breach of duty. The direction given by her Honour could not have been relevant to any other issue.
Fifthly, the issue to which this ground relates was simply not an issue at trial. It was common ground that the provision of goggles was a precaution that could have been taken before the accident. As stated earlier, the issues at trial were clearly defined, as follows: was the applicant wearing safety glasses at the time of the accident; and, even if goggles could have been provided, was the provision of safety glasses unreasonable so as to constitute a breach of duty? The fact that there was no issue about the practicability of this precaution doubtless explains why senior counsel who appeared for the applicant at trial took no issue with the directions now sought to be impugned.
Proposed ground 1 is rejected.
Ground 2: did the judge err in not redirecting on the post-accident change to the system of work in response to the jury’s question?
Under proposed ground 2, the applicant makes complaint that the judge did not, in answer to the jury’s question, redirect the jury on the law governing their use of the post-accident evidence. The applicant submitted that the judge erred in not giving this redirection, in circumstances where:
(a)the jury’s question concerned the determination of how a reasonable person in the [employer’s] position would have responded to the risk of injury;
(b)the evidence was relevant to the jury’s question because it was capable of supporting an inference that the [employer] could have provided the goggles to the applicant before the accident with minimal expense, difficulty and inconvenience; and
(c)the evidence was critical for one of the applicant’s principal allegations against the [employer] — namely, that it should have provided him with the goggles before the accident.
The short answer to the applicant’s submissions is that the judge took care to answer the question asked by the jury. The jury asked a specific question about a specific slide of the PowerPoint presentation. The judge confirmed with the jury the specific nature of their question. The judge then answered that question. A different judge may have chosen to give a wider answer. There was no error in the judge confining herself to the question asked by the jury.
Proposed ground 2 is rejected.
Ground 3: did the judge err in her directions about reasonable foreseeability or in relation to how the law applied to the evidence adduced at trial?
Under proposed ground 3, the applicant contended that the judge erred in five respects, namely:
(1)by introducing the issue of whether the risk of injury was reasonably foreseeable when neither party had raised that issue in the proceeding;
(2)by failing to direct the jury that the risk of injury to the applicant was reasonably foreseeable if a reasonable person in the employer’s position would have considered that the risk was not far-fetched or fanciful;
(3)by failing to direct the jury that the applicant was not required to prove that the precise manner in which he suffered the injury to his eye was reasonably foreseeable;
(4)by failing to provide any explanation to the jury about how the law applied to the evidence adduced at the trial; and
(5)as a result, by confusing the jury as to why foreseeability was relevant to their task.
There is no substance in any of these complaints. Immediately, it should be observed that none of the complaints now sought to be agitated was the subject of any exception taken by counsel for the applicant at trial. Rule 64.37(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 provides that a new trial shall not be granted on the ground of a misdirection unless this Court is of the opinion that some substantial wrong or miscarriage has been occasioned thereby.
While the failure to take exception at trial is not determinative of whether some substantial wrong or miscarriage has been occasioned, it will ordinarily be a powerful indicator that there has been no such wrong or miscarriage.[7] It is the responsibility of counsel for the respective parties to identify — for the assistance of the trial judge and of the jury — what matters are in issue in the trial. The issues having thus been defined, it is also the responsibility of counsel to ensure — including by specific submission to the judge — that the directions given to the jury correctly convey ‘so much [of the law] as must guide them to a decision on the real issue or issues in the case’.[8]
[7]Brotherhood of St Lawrence v McCabe [2013] VSCA 257 [73]–[75] (‘Brotherhood of St Laurence’).
[8]Alford (1952) 85 CLR 437, 466.
It follows, as has been said many times before, that if counsel immersed in the issues of the trial do not perceive a need to take exception to a particular part of a judge’s charge (or some irregularity that is raised for the first time on appeal), then this Court will be slow to hold that any substantial wrong or miscarriage has actually been occasioned by the matter about which complaint is now sought to be made.[9]
[9]Brotherhood of St Laurence [2013] VSCA 257 [73]–[77]; and in a criminal context, see also Meyer (a pseudonym) v The Queen [2018] VSCA 140 [35].
In relation to the raising of the issue of reasonable foreseeability, the applicant now concedes that, contrary to the terms of ground 3(a), the issue was first raised by his senior counsel at trial in opening, when counsel said:
We say the [employer] here — they controlled the workplace, not the employees. The [employer] controlled the workplace. The [employer] know[s] the work that should have been done and the [employers], with a bit of common sense — and actually just giving it a little bit of earnest thought as to what their employees — what [the applicant] was doing, we say that in those circumstances, it was a reasonably foreseeable possibility of him being injured in the way in which he was, and again, if they had just given it a little bit of thought, goggles were a no brainer obviously, and they would have quite easily reached the conclusion that he should have been given goggles rather than the safety glasses that they gave him.
The applicant now complains about the judge’s references to the issue of reasonable foreseeability in her charge, in circumstances where neither counsel referred to that issue in final addresses. The specific passage about which complaint is made is as follows:
So then to determine whether an employer has been negligent, the test is, as the law calls, an objective one. So you see there that heading. That is the duty. The duty owed is that of a reasonably prudent employer in the circumstances. It is a duty to take reasonable care to avoid exposing its employees to unnecessary risk of injury — that is, risks of injury which are reasonably foreseeable.
You decide whether the [employer] acted reasonably by deciding, what would you expect of a reasonably prudent employer in the particular circumstances? And you do so without the benefit of hindsight. The mere fact that the plaintiff was injured does not answer the question, whether the accident was reasonably foreseeable by a reasonable employer in all the circumstances, but it would be just as wrong to conclude that the [employer] did not breach its duty because it did not in fact foresee risk of injury.
A little later in her charge, the judge said:
It is for you to decide what response, if any, to foreseeable risk of injury was required of a reasonable employer in the [employer’s] position.
There were further references to the foreseeable risk of injury in the PowerPoint slide referred to by the judge in the passage of her charge set out above, and in the redirection given in answer to the jury’s question (also set out above). None of these references suggested that the foreseeability of the risk of the applicant suffering an injury of the kind he suffered was in issue at trial. To the contrary, the issues were whether the applicant was wearing the safety glasses and whether the provision of the safety glasses was a reasonable response to the relevant risk of injury.
Moreover, a fair reading of her Honour’s charge shows that the case proceeded, and the judge charged, on the basis that foreseeability was not in dispute between the parties. The judge’s references to the foreseeable risk of injury were made simply to give content to a description of the duty of care owed by the employer, so that the jury could evaluate properly the question of the employer’s alleged breach of that duty. The failure of the applicant’s trial counsel to take any exception to the judge’s references is no doubt explained by counsel’s correct understanding of what her Honour was doing.
Having contended that the judge erred in her charge when she raised the issue of reasonable foreseeability, the applicant next complained that the judge failed to give a more detailed direction on the issue, by failing to tell the jury that a reasonably foreseeable risk of injury was one that was not far-fetched or fanciful; and that the applicant was not required to prove that the precise manner in which he suffered injury was reasonably foreseeable. There is no substance in these complaints.
There was, as we have already said, no issue about reasonable foreseeability run at trial. More particularly, there was no suggestion at trial that the risk of injury of the type that the applicant suffered was far-fetched or fanciful, or that the injury happened in some manner which was not reasonably foreseeable. There being no issue about these matters, the judge would have been wrong to direct the jury about them as is now contended for by the applicant.
Finally, we reject the applicant’s complaint that the judge failed to provide any explanation to the jury about how the law applied to the evidence adduced at trial. Once again, this is a complaint that was not made by the applicant’s trial counsel. Plainly, the applicant’s trial counsel were content that the charge explained to the jury how the law applied to the evidence adduced at trial.
The judge made repeated references to the evidence during the course of her explanation to the jury of the various legal principles they were required to apply in coming to their decision. While another judge might have said more, we see no inadequacy in her Honour’s explanation of how the law applied to the evidence adduced at trial. We are fortified in this conclusion by the fact that trial counsel, immersed, as we have said, in the atmosphere of the trial, took no exception on this issue before the judge.
Proposed ground 3 is rejected.
Ground 4: did the judge err in the provision of copies of the PowerPoint slides?
Under proposed ground 4, the applicant complains that the judge erred in providing the jury with copies of the PowerPoint slides, in circumstances where she failed to direct them that the charge consisted of what she told them orally and that the PowerPoint presentation was necessarily an incomplete statement of the law that was relevant to their verdict. Further, the applicant complains that the underlining in the first of the two post-accident change slides (‘does not’) may have led the jury to believe that the post-accident changes were irrelevant to establishing negligence.
Once again, this complaint was not made at trial. As noted earlier, the applicant’s senior counsel invited the judge ‘to resist’ giving a PowerPoint presentation. But, once the judge had decided to proceed with the PowerPoint, there was no complaint either about the content of the slides or about their being provided to the jury in the absence of the transcript of the charge.
In our respectful view, it was entirely appropriate for the judge to give a PowerPoint presentation. Self-evidently, any measure designed to enhance jurors’ comprehension of the matters which they are required to decide should be encouraged. It is now well established that jurors prefer, and benefit from, ‘paper-based guidance on procedural and substantive issues to complement the oral explanations’.[10] It is a matter of universal experience that written aids greatly enhance comprehension — and retention — of instructions given orally.
[10]Jacqueline Horan, Juries in the 21st Century (Federation Press, 2012) 74 ff.
We respectfully agree with the judge that any reasonable step that can be taken by way of presentation, or the provision of appropriate handouts, to assist the jury in understanding and performing their task should be undertaken. To that end, we see considerable utility in a carefully-prepared PowerPoint presentation if the judge considers such to be appropriate.
At the same time, care needs to be taken by a judge who gives a PowerPoint presentation to ensure that the jury understands that it is the whole of the charge (assisted by the PowerPoint presentation) that the jury must have regard to when deciding the case.
In the present case, when introducing the PowerPoint presentation, the judge told the jury not to be worried if they missed something because they would be given copies of the slides later on. The issue arises as to whether that statement may have misled some of the jury into thinking that it did not matter if they missed some of the oral directions because the PowerPoint slides would be a sufficient instruction to them.
While it would have been preferable if the judge had made it clearer that the PowerPoint presentation was merely an aid in the presentation of her charge, we are not persuaded that any substantial wrong or miscarriage has been occasioned by the judge’s failure to give this more specific direction. First, as we have already observed, trial counsel took no relevant objection to the judge’s failure to tell the jury that the charge consisted of what she told them orally and that the PowerPoint presentation was necessarily incomplete.
Secondly, one might infer from the jury question the subject of proposed ground 2 that the jury did not consider the PowerPoint presentation to be a complete explanation of the relevant law they had to apply in determining the case. The very fact that the jury asked for a further direction showed an adherence by them to the judge’s oral charge and an understanding that the PowerPoint presentation did not definitively set out all of the law they needed to apply in performing their function.
Thirdly, we reject the applicant’s criticism of the underlining in the first of the two post-accident change slides. There was similar underlining in the second of those slides (‘can’). The underlining in the two slides links them and, read together, they are incapable of creating the confusion complained of. Read together, the two post-accident change slides are consistent with the applicable legal principle to be applied, as set out by Heydon JA in NSW Land & Housing Co v Watkins.[11]
[11][2002] NSWCA 19 [78].
Proposed ground 4 is rejected.
Conclusion
Leave to appeal must be refused.
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