McInroe v Leeks
[2000] NZCA 72
•31 May 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA219/99 |
| BETWEEN | LEONI FRANCES MCINROE |
| First Appellant |
| AND | SELWYN LEEKS |
| First Respondent |
| AND | THE ATTORNEY-GENERAL |
| Second Respondent |
| BETWEEN | PAUL ANTHONY LUCAS |
| Second Appellant |
| AND | SELWYN LEEKS |
| First Respondent |
| AND | THE ATTORNEY-GENERAL |
| Second Respondent |
| Hearing: | 17 May 2000 |
| Coram: | Henry J Tipping J Doogue J |
| Appearances: | A P Duffy QC for First and Second Appellants A J Knowsley for First Respondent I C Carter for Second Respondent |
| Judgment: | 31 May 2000 |
| JUDGMENT OF THE COURT DELIVERED BY HENRY J |
The appellants have commenced separate proceedings in the High Court. In their praecipes setting down the actions for trial which were forwarded to the respondents, they each gave notice pursuant to Rule 427 of the High Court Rules requiring trial before a Judge and jury. The respondents thereupon applied under s19A(5) of the Judicature Act 1908 for orders directing trial before a Judge without a jury. Following a hearing in the High Court at Wellington, Durie J made the orders sought.
The right to jury trial is given by s19A of the Judicature Act, the relevant provisions of which are:
(1) This section applies to civil proceedings in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels.
(2) If the debt or damages or the value of the chattels claimed in any civil proceedings to which this section applies exceeds $3,000, either party may have the civil proceedings tried before a Judge and a jury on giving notice to the Court and to the other party, within the time and in the manner prescribed by the High Court Rules, that he requires the civil proceedings to be tried before a jury.
….
(5) Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be tried before a jury, if it appears to a Judge before the trial-(a)That the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or
(b)That the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,-
the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury.
In a careful judgment, Durie J concluded that both limbs of s19A(5) had been established, and then for reasons which he detailed exercised his discretion in favour of the respondents.
The proceedings
As adolescents, both appellants were detained in Lake Alice Hospital where they received medical treatment, including the administration of electro‑convulsive therapy.
[a]The appellant Leoni McInroe has pleaded four causes of action. The first is for false imprisonment for periods during 1975, 1976 and 1977. The loss alleged is loss of freedom, humiliation and embarrassment, for which compensatory damages are sought. In addition, loss arising from incorrect diagnosis and from inappropriate treatment and medication is alleged. It is also pleaded that the treatment and medication were administered without consent. Exemplary damages are sought against both respondents in respect of all the losses, for which the second respondent is said to be liable for its own conduct and also vicariously for that of the first respondent. The second cause of action is framed as trespass to the person, and pleads administration of treatment and medication, the particulars of which although not identical appear to repeat those pleaded in the first cause of action. Consent is an issue. The third cause of action alleges that a fiduciary duty was owed by both respondents, which was breached in the ways alleged earlier. The fourth cause of action is based on negligence, and contains similar allegations of breach, but related to the duty of care. In the second, third and fourth causes of action, exemplary damages only are sought, but again against both respondents jointly and severally.
[b]The appellant Paul Lucas has pleaded two causes of action against both respondents. The first is breach of fiduciary duty, being his wrongful detention in Lake Alice Hospital during 1975 and 1976, and the administration of inappropriate treatment and medication whilst so detained. The second cause of action is based on trespass to the person, arising from the administration of medication and treatment. Consent would therefore be an issue. Exemplary damages only are sought, again from both respondents jointly and severally.
The defences pleaded to earlier statements of claim are couched as general denials of the substantive allegations, and raise positive defences under the Limitation Act 1950, the Mental Health Act 1969 and the Accident Rehabilitation and Compensation Insurance Act 1992.
The High Court Judgment
Durie J correctly identified the legal principles applicable to the respondents’ application and held that both limbs of s19A(5) had been met. In respect of the requirement for there to be difficult questions of law he identified four aspects, including the affirmative defences raised which he saw as being of particular difficulty. As to the second of the available threshold requirements, the Judge saw the essential feature as being the extent of “literature and technical and professional evidence that is likely to be involved.” He went on to refer to the need to assess the significance of professional standards as they apply to mental health, the extensive changes in public awareness and perception in this area which have occurred in recent years, and the need to view retrospectively what happened more than 20 years ago. A wide range of expert medical views on the issue of consent was anticipated, with a need to identify principles which applied to that concept in the 1970’s as distinguished from the understanding of it today. The Judge also envisaged the extensive use of medical reports, contemporary expert opinions, and reports from the Ombudsman and a Royal Commission of Inquiry. On the exercise of discretion, Durie J concluded that these same matters stood persuasively against a jury trial. He also referred to the emotive and contentious nature of the electro-convulsive therapy treatment which he saw as raising issues giving the proceedings a significance beyond the parties and extending to the public generally. He saw value in a reasoned decision on the issues of liability as well as on those relevant to awarding exemplary damages. Also of relevance were the possibility of an appeal, more readily suited to a consideration of a reasoned judgment than a summing up, and what he perceived as the limited role which the jury would play in a trial, when compared with the extent of the matters of law which would be outside the jury province.
Argument
For the appellants Ms Duffy submitted that although the Judge had correctly stated the legal principles in question, he had erred when applying to them the relevant circumstances of the present cases and the material available to the Court. In particular it was contended that the threshold requirements of s19A(5) had not been met under either para (a) or para (b). She further submitted that in the course of exercising his discretion, the Judge had erred by taking into account matters which were not relevant to the enquiry under s19A(5).
For the respondents, Mr Knowsley and Mr Carter both stressed the complex nature of the many issues which would arise, their interrelationship with questions of law, and the difficulties of isolating out discrete questions of fact which would be necessary before definitive rulings of law could be made. Counsel also stressed the likely difficult questions as to medical practice which would arise, with the accompanying need to examine extensive medical, nursing and counselling reports.
One particular matter of concern arose in the course of the hearing. On a strike out application based in part on a submission that the proceedings were statute barred, Master Thomson declined to determine that issue, holding in conformity with earlier observations of this Court that because of the necessity to investigate significant questions of fact which were also intermingled with those relevant to the substantive trial issues, it was inappropriate to make a ruling in advance of the trial. There has been no appeal from his dismissal of the strike out application. In this Court it became apparent that counsel had not given full consideration or conferred as to how limitation issues could be dealt with procedurally, and a number of alternatives were canvassed in the course of argument. In the end that would of course be a matter of trial management for the trial Judge, but the problem did serve to highlight some of the difficulties which are often inherent in claims of this nature.
Discussion
Although there has as yet been no formal decision, we were advised by counsel the present intention is that the claims of both appellants be heard together. The considerable overlap of expert evidence which would occur is apparent from the pleadings. The consequences of such a procedure are not entirely clear, but it would seem that this would result in some complexity, and of necessity the formulation of probably a considerable number of jury issues, which may require the application of, for example, common standards of practice to different although in some ways similar factual situations. It must also be kept in mind that as is now common practice, each appellant as plaintiff is relying on more than one cause of action as justifying relief, and in so doing rely on allegations which have some common features but do not overlap in any comprehensive way. The result is that at this stage it is not an easy task to envisage the likely nature and extent of the factual issues which would ultimately be presented to the jury.
We turn first to paragraph (a) of the subsection. The leading authority on the way in which the paragraph is to be read is Guardian Assurance Company Limited v Lidgard [1961] NZLR 860 at p863:
Paragraph (a) speaks of “the consideration of difficult questions of law"” The word used is “consideration” and not “determination”. Therefore it seems to us that the paragraph is dealing with practical problems likely to arise during the progress of the trial, and is not concerned with questions of law, however difficult, which the Judge may have to decide before a final judgment can be entered, and which do not make it inconvenient to have a jury as the tribunal of fact for the trial itself. Thus, a claim founded on negligence may give rise not only to the question of fact as to whether there was a failure to use proper care, but also to questions of law, as, for example, whether the law recognises any duty owing by the defendant to the plaintiff, or whether the damage suffered is too remote in law. Such questions of law are ordinarily quite separate and distinct from the issues of fact, and, indeed, only arise after findings of fact in favour of the plaintiff. They do not affect the nature of the jury’s task as the tribunal of fact. The cases which come within para (a) are, we think, cases where the questions of law are of such a nature that it becomes difficult to keep the respective functions of Judge and jury separate from one another. There are cases where matters of law and matters of fact so merge into one another that the task of the jury becomes complicated in the application to the facts of questions of law which it is difficult for the Judge to explain in language they could be expected to appreciate and apply.
There are other cases where, during the course of the trial, the Judge will be called upon to give consideration to difficult questions of law and where it is not possible to isolate satisfactorily questions of fact for submission to the jury. These are broadly the cases to which, we think, para (a) applies. It should be added, however, that it is not possible to describe exhaustively any category of cases in which the power conferred by the paragraph might properly be exercised, but we have said enough to show that, in our opinion, the principal matter for consideration under the paragraph must be the extent to which the exposition and application of matters of law may cause difficulty to the Judge and the jury in the discharge of their respective functions.
We think this construction of para (a) enables effect to be given to the word “difficult” in the phrase “difficult questions of law”. If, as Mr Wilson’s argument suggested, this phrase related only to the consideration of questions of law by the Judge for the purpose of determining those questions, it would not seem to be material whether the questions could be described as easy or difficult. If, however, as we think, the paragraph contemplates the effect which questions of law may have on the convenient discharge of their respective tasks by both Judge and jury in the course of a trial, then the more difficult the questions of law become the more complex those tasks may become, especially when matters of law and matters of fact are inextricably mingled.The first question of law identified is whether the first respondent was employed by the Department of Health (represented by the second respondent in the proceedings), or by the Palmerston North Hospital Board as he alleges. Included in this question are said to be issues as to the scope of that employment. In the absence of further elaboration, we have some difficulty in seeing how this is likely to cause trial problems. In the event that the discovery process has not resolved the identity of the employer, the questions of disputed fact must surely be limited. Neither was it made clear in argument how the scope of the first respondent’s employment would become a matter of moment resulting in some complexity as regards the functions of judge and jury. There is no pleading by the second respondent to that effect, and on the face of the pleadings it is difficult to see how it could arise other than perhaps in respect of the second question of law relied upon, namely the second respondent’s liability vicariously to an award of exemplary damages.
It was next submitted that the issue of exemplary damages arising out of the second respondent’s alleged vicarious liability fell within paragraph (a). We think that it probably does, not only because the issue gives rise to complicated questions of law, but also because the jury directions necessary on the question of assessment if such damages fall to be awarded will inevitably be complex and difficult. The second respondent is said to be liable both vicariously for the first respondent’s actions and also primarily in her own right. The level of the two sets of damages would appear likely to differ because they will have differing components, and also alternative answers could be necessary to avoid the possibility of an undue doubling up.
Further complications arise in respect of exemplary damages. In the McInroe proceeding under the first head of claim compensatory damages are also sought. The jury would have to be directed that compensatory damages must exclude damages for personal injury which may be covered under the accident compensation legislation. In that respect a difficult line would have to be drawn, particularly in relation to the mental consequences all of which are pleaded as relevant to the assessment of exemplary damages. In addition, the respective bases pleaded for awarding and assessing exemplary damages in the various causes of action are not identical and could require differing directions. For example, flagrant disregard of fiduciary duty could possibly be viewed as more serious than flagrant disregard of a duty of care. The distinction is drawn in the McInroe statement of claim, both as to the nature of the duties and the amount of relief sought. There is also a possible complication arising from the fact that the causes of action are not clearly alternative, with the resulting problem of ensuring the overall liability has no element of overlap and any accumulation is not excessive.
Then there are the affirmative defences, particularly under the Limitation Act 1950. Discoverability of the elements of the separate causes of action would seem in most instances here to be intermingled to a greater or lesser extent with the question of consent to detention, and also consent to treatment and medication. That too will likely lead to complications for trial management purposes, as there are foreshadowed serious areas of dispute whether there was actual consent on the part of each appellant and also whether consent was given by guardians or their legal equivalent in the circumstances. One or more of these issues will inevitably involve difficult questions of law in the sense discussed in Guardian Assurance Company Limited v Lidgard.
These matters lead us to the conclusion that the threshold required to be met under paragraph (a) has been met, and the Judge was correct so to hold.
Under paragraph (b) of s19A(5), the respondents relied first on a perceived need to conduct a prolonged examination of documents. This point was not expressed in the application to the High Court, and it also suffers from the difficulty that no supporting affidavit was filed demonstrating such a need. That there will be a prolonged examination of documents is not self evident from the very limited material before us. On what we were told, the hospital and medical records, and the counselling notes which were also relied on, do not appear to be unduly voluminous or to cause difficulties for a jury. Neither is it apparent any prolonged examination, such as is envisaged by the paragraph, will be required. As matters now present themselves, the bulk of the evidence would appear to be oral rather than documentary. Juries have commonly been the tribunal of fact in assessing and deciding conflicting expert medical testimony which has included reference to such material. We were not pointed to anything unusual in this regard.
The respondents are however on stronger grounds in respect of the investigations into scientific or professional matters where difficult questions are likely to arise. In his submissions Mr Knowsley detailed a number of matters in support of this ground. In summary form they include: the practice of detaining adolescent psychiatric patients in Lake Alice Hospital in the 1970’s, and the reasons behind that practice; the diagnosis and treatment of mental illness in the 1970’s; the reasons for the admission of the appellants to Lake Alice; the practice of administering electro‑convulsive therapy, particularly to young persons; what constituted informed consent, and who should give the consent when young persons are involved; the developing awareness by the appellants of factors which form the elements of the pleaded causes of action; the identification of what is or what is not personal injury which may be the subject of a damages award.
On this aspect of the appeal we are of the view that in these proceedings, the nature and extent of the scientific and professional matters which will be in issue and require careful investigation and evaluation are of such difficulty that the exercise cannot conveniently be undertaken with a jury. The further the argument progressed before us, the more that became evident. There are complex questions which involve a broad mix of fact and law, some of which may be difficult to isolate out coherently in advance as distinct questions of fact directed to a particular scenario. We are also left with the uncomfortable feeling that despite the best endeavours of counsel, it has not been possible to foresee all the problems likely to emerge in the course of investigation into these admittedly difficult matters.
We therefore agree with Durie J, if for different reasons, that the threshold required to be made out under paragraph (b) of s19A(5) has been satisfied.
The jurisdictional basis for an order for trial without a jury having been made out, it remains to consider whether the discretionary decision to make the order should be set aside. As the case was presented to us it was clear that the proceedings will give rise to a series of issues, many of which will be complex and difficult. A jury could be faced not only with complicated and difficult questions but a whole series of interlocking and overlapping hypothetical questions. Because of this the proceedings are not ones which lend themselves readily, let alone easily, to trial by jury. They are proceedings that must necessarily be more readily determinable by a Judge who is responsible for finding the facts and the law in combination. We are satisfied this Court should not interfere, and we are further satisfied that in all the circumstances the order was appropriate. In reaching this conclusion we are not to be seen as endorsing the Judge’s apparent reliance on the desirability of having in the end result a reasoned judgment rather than a summing up and verdicts of the jury. With respect, that is irrelevant. The importance of the right to a jury trial is not to be undervalued, even in today’s conditions where such trials are, comparatively speaking, not common in the civil jurisdiction of the High Court. At issue is a balancing exercise, under which if the threshold requirements are made out the Court must give careful consideration to how best the trial process and its management can meet the overall justice of the case, placing due weight on the entitlement of a party to seek trial by jury. The significance of the jury influence on standards of behaviour, and of vindicating in an appropriate way those who have been wronged and also vindicating those who have been wrongly charged with infringing another’s rights, must be kept firmly in mind. Having carried out that balancing exercise ourselves as well as evaluating that undertaken by the Judge, we have reached the clear conclusion that both proceedings should be heard before a Judge without a jury.
The appeal is therefore dismissed. We understand the appellants are legally aided. Counsel can submit memoranda as to costs if necessary.
Solicitors
Cairns Slane, Auckland, for Appellants
Rainey Collins Wright & Co, Wellington, for First Respondent
Crown Law Office, Wellington, for Second Respondent
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