LEGAL PRACTITIONERS - Duties of counsel - Civil jury trial - Misconduct of counsel - Unfair trial - New trial ordered.

1 For the reasons given by Bongiorno JA and Byrne AJA, I would also allow the appeal and order a retrial.

2 The appellant, Karen Anne Baulch, was employed by the respondent, Lyndoch Warrnambool Inc, as a kitchen hand and personal care attendant at the nursing home and hostel conducted by it in Warrnambool. On or about 7 July 2000 she fell at work and suffered injury. By writ filed on 3 July 2008 she sued Lyndoch seeking damages for its negligence as her employer.

3 Upon the trial of this proceeding before a judge of the Trial Division and a jury of six, the jury returned a verdict for the respondent, answering in the negative the first question, did the appellant suffer injury as a result of the negligence of the respondent? Judgment was, accordingly, entered for the respondent. This appeal is brought by notice filed on 23 October 2008.

4 By way of preliminary observation, we note that the notice of appeal is addressed to be served upon the respondents and upon its solicitors and also upon the trial judge. Rule 64.04(1) provides for service of the notice upon affected parties. His Honour, the trial judge, is not such a party; service upon him or the Court is inappropriate. The notice must, of course, be filed in Court pursuant to Rule 64.05.

5 Before we turn to the grounds of appeal, we should describe briefly the issues relevant to this appeal as they appeared at trial. Both parties were represented by experienced senior and junior counsel.[1]

6 The case opened to the jury was that the appellant suffered injury when she fell in the course of her employment at about 4:45 p.m. on 7 July 2000. At the time of the fall she had been on duty for about 29 of the previous 34 hours. Thus far, there was no dispute.

7 The uncontradicted evidence was that she commenced work at 7.00am on 6 July and worked a normal shift until 3.15pm on that day. She then went home, returning to the nursing home to commence a 'sleep over' shift which finished at 8.30am the following day. She then went to the hostel to commence her normal shift from 9.00am to 6.00pm. During a sleep over shift she was required to serve supper to the residents and to be available as needed during the night. She was provided with a bed and was permitted to sleep after lights out at about 10.00pm unless called upon by a resident.

8 The appellant gave evidence that, during her sleep over shift on the night before the fall, she had been required to attend frequently an elderly resident who was sick and confused, so that she had little, if any, sleep. She said that she was exhausted when she commenced her day shift on 7 July. She said, too, that at the end of her sleep over shift she told her supervisor, Joyce Steele, about the condition of the resident and that she had been up all night with her. It was suggested to her on behalf of the respondent that her statement to Mrs Steele about her loss of sleep did not occur. Mrs Steele said that she could not recall that conversation.

9 It was said that the requirement of her employer that she work these hours was a breach of its duty of care to provide a safe system of work. The respondent's position was that the appellant had had adequate rest periods so that her fall was not caused or contributed to by her suggested state of exhaustion. This was a significant issue at the trial. The respondent relied for its contention upon the suggested fact that she had earlier said that she fell because the workroom floor was slippery and that she had not mentioned fatigue as a cause of her fall when she was asked by a number of doctors how the accident had happened.

10 The position of the respondent on this issue was developed before the jury by counsel questioning the appellant and her medical witnesses about her account to them of the circumstances of the accident which did not include fatigue. In particular, it was suggested to her that the account she gave to a surgeon, William Maling, on 26 October 2000 did not mention fatigue as a cause. He said that she told him only that she fell heavily onto her knees unexpectedly and that she did not know how it happened other than that the floor was polished vinyl. She later consulted a psychiatrist, Dr Mark Gerald Ivers, who she first saw in April 2002. He described the consultation and expressed an opinion about her psychiatric condition. In his evidence of a later consultation on 10 March 2006 he said that she gave him an account of broken sleep at work on the night before the fall in July 2000. This account was later said to have been the first time she spoke of fatigue in the context of the accident at work. In his report of an earlier consultation in 2004, Dr Ivers said that he had previously believed that this was merely a slipping incident. He agreed with defence counsel that she had not informed him before 2006 that she had fallen because she was fatigued or exhausted.

11 A further issue was as to the nature and extent of the injuries she suffered as a consequence of the fall. The case opened on her behalf to the jury was that she suffered injury to both knees and to her lower back. There was no issue that, shortly after the fall, she was treated for these injuries, but it was contended on behalf of the respondent that the injury the result of the fall was to her right knee only. She had had a prior history of back pain. Counsel for the respondent put to her that her initial report of the injury made reference only to the right knee injury. He also challenged her in cross-examination about her allegations that she had suffered anxiety and depression as a consequence of her injuries.

12 It is apparent from a reading of the transcript of the trial that the credit of the appellant was a central issue. Counsel for the respondent, in evidence and in final address, invited the jury to reject her evidence and did so with some vigour. We offer no criticism of this. It is often the duty of counsel forcefully to challenge the case which, on their instructions, is exaggerated or false. Nevertheless, such an attack must be conducted within legal and ethical limitations which are well established. On this appeal, counsel for the appellant contended that counsel for the respondent at the trial stepped over the line so that the trial was unfair.

13 This ground alleges that the trial of this proceeding was unfair because defence counsel invited the jury to disbelieve the appellant as to her having injured her left knee and back when she fell at her place of employment when he had never challenged her evidence, or that of her medical witnesses, on this question. In other words, the ground alleges a failure to comply with the rule of practice known as the rule in Browne v Dunn,[2] and that that had led to material unfairness in the trial.

14 In the course of his address, defence counsel referred the jury to two documents which were in evidence, a workers' compensation claim form and a hospital report, each of which referred only to the appellant having injured her right knee. He argued that the appellant's claim that she '[wants] compensation from us for her left knee, for her back, for her arms, for her legs, for her whole body except her face and chest' was unbelievable. This unfair exaggeration of her particulars of injury may be considered as a mere forensic flourish, but it was a dangerous course where her credit was so much an issue.

15 In his address, counsel for the appellant met this argument by reminding the jury what his client had told them of her injuries. He said that her evidence was that she had pain in both legs and her back on the weekend after her fall and that she had subsequently had x-rays to those parts of her body. He also reminded them that defence counsel had never challenged that evidence in his cross-examination of the appellant. He told the jury about the rule in Browne v Dunn[3] and read to them a passage from Lord Halsbury's judgment in that case - a practice which, although probably not improper, is not to be encouraged.

16 During a convenient break in proceedings, shortly after the trial judge commenced his charge to the jury, the question of whether that charge should include a Browne v Dunn[4] direction was debated. Counsel for the appellant made, essentially, the same points he had made in his address, and defence counsel sought to justify his not having challenged the appellant as to relevant parts of her evidence by relying on the documents which he referred to in his address as constituting adequate notice of his case on these issues.

17 The judge then ruled on that argument.[5] His Honour determined that defence counsel was in breach of the rule in Browne v Dunn[6] because he did not put to the appellant the respondent's contention that any injury to her back and left knee was not connected to any fall she had at work. His Honour said in the course of that ruling:

In my view she was denied the opportunity to respond to those suggestions and she was denied the opportunity to call evidence to refute it (sic.), if such evidence was available. Secondly, in my view there was never a specific allegation put to any of the doctors called by the plaintiff in relation to there being no connection between the fall and the back and the left knee.

I do not regard the passages referred to by [defence counsel] as going anywhere near putting the proposition that the back and left knee were not related to the fall. Each of the doctors, it seems to me, upon close perusal of their evidence, which I undertook both last night and this morning, was not challenged implicitly or explicitly about the connection between the back, the left knee and the fall. Moreover, the evidence contained in D3 and D2 was not put to them.

18 His Honour ruled that he would give a direction in accordance with Browne v Dunn.[7] This he did. In doing so he followed, in part, at least, the statement of Newton J in Bulstrode v Trimble[8] concerning the second of the two aspects of the rule in Browne v Dunn,[9] namely, the effect of its breach on the weight or cogency of the unchallenged evidence.

19 The trial judge referred the jury to defence counsel's failure to comply with the rule. He referred to the evidence of the appellant and that of the relevant medical witnesses who supported her case with respect to her left knee and back. He referred to the fact that not only had this evidence not been challenged but no contrary evidence had been called by the respondent, leaving the appellant's case effectively un-contradicted. His Honour told the jury that the failure by defence counsel to cross-examine about these matters might be good reason for accepting the appellant's evidence on this question although it was not bound to do so. He said that the evidence of various doctors who provided a link between injuries to the appellant's left knee and back and her fall was unchallenged.

20 The judge pointed out to the jury that the respondent had called no contradictory evidence to suggest that the injuries to the appellant's left knee and back were not related to the fall. But he did not go as far as to comment, as he might well have done, that the failure of defence counsel to challenge the appellant or her medical witnesses on this question, combined with the lack of contradictory evidence, meant that, in the absence of a good reason not to, the jury ought to accept the connection contended for by the appellant. Her evidence and that of her doctors was not 'inherently incredible',[10] 'incredible or unconvincing'[11] or 'inherently improbable'.[12] Nor did the judge criticise defence counsel by telling the jury that he had engaged in 'unfair tactics'.[13] Such a comment could have legitimately drawn the jury's attention to the fact that the respondent had had the appellant examined by three doctors who were not called and to the inferences which might be drawn from this in the context of the defence failure to comply with the rule in Browne v Dunn.[14] In evaluating whether the appellant's case was the subject of a fair trial, the fact that she did not have the benefit of such comments, or comments of a similar nature, must be considered. That is part of the context in which the fairness of the trial must be assessed. In the circumstances of this case, some such comment was required to balance the conduct of defence counsel in egregiously breaching this rule.

21 Subsequent to that part of the judge's charge concerning the rule in Browne v Dunn,[15] counsel for the appellant applied for a discharge of the jury. This application was based, in part, on defence counsel's breach of that rule. His Honour refused to discharge the jury and, referring to the direction he had given them with respect to the rule, said that he thought that they had understood what he had said and that he had confidence in their ability to understand his directions.[16]

22 The question to be determined in considering Ground 1 is not whether the trial judge was correct in not discharging the jury on the appellant's application but whether, in the events which occurred, the fairness of the trial was seriously affected to the prejudice of the appellant. That question must be answered by reference to the context in which the breach occurred, the remedial action taken by the trial judge, and the probable effect of the breach and that remedial action upon the jury.

23 The conduct of defence counsel in this instance is to be condemned. It was not an inadvertent mistake or a rash decision taken in the heat of forensic contest. It was a deliberate disregard of a fundamental rule of fairness in the conduct of adversarial litigation. Further, the breach in this case was particularly significant as it involved not only a failure to cross-examine the appellant but a failure to cross-examine a number of medical practitioners who supported her case on this point. The failure occurred in circumstances where defence counsel must have known that he had no evidence he could call to contradict the appellant's assertion.

24 The prejudice to the appellant's case caused by defence counsel's conduct was ameliorated, to some extent, by the direction given by the trial judge to the jury in the course of his charge even though that direction did not include any comment which might have been made to attempt to balance the situation. And, of course, the breach of the rule was also the subject of comment by counsel for the appellant.

25 We are satisfied that the appellant has made out a serious and deliberate failure by the respondent's counsel at trial to comply with a fundamental rule of fairness. Despite the judge's directions and her own counsel's address, this failure seriously affected the proper conduct of this trial. We put aside, at this stage, the question of whether, taken alone, the establishing of this ground by the appellant entitles her to a new trial. However, this will be considered again in the context of our conclusions as to the other grounds of appeal relied upon by the appellant.

26 The complaint made in this ground is that defence counsel told the jury that the figures to be put to them on behalf of the appellant were ridiculous and, further, were known to her counsel to be so.

27 The sting of this ground is not that counsel poured scorn on the argument to be put on behalf of another party; this is not necessarily an unusual or improper occurrence at trial.[17] The complaint made concerns the suggestion that counsel for the appellant knew the figures to be ridiculous.

28 The proper role of counsel is to present persuasively and even vigorously the case which they are retained to present. There are, of course, well known limits upon what might be presented in argument. One of these limits is that counsel may not misstate the evidence or mislead the Court as to factual matters. There is, however, no ethical or other obligation upon counsel to present only submissions of fact which are known to be reasonable. Likewise, it is entirely proper for opposing counsel to seek to persuade the tribunal of fact that these submissions are without foundation or that they should not be accepted.

29 This said, it is no part of counsel's function to argue, not that an opponent's contentions are flawed but, that the opponent knows them to be flawed. Counsel presenting argument to a jury is not giving an opinion; they are making submissions. It follows that the statements in question in this case by defence counsel were improper and, above all, irrelevant. They ought not to have been made and counsel should have known this to be so.

30 Seen in isolation, counsel's statements warranted a rebuke from the trial judge at the appropriate time. The offending counsel was indeed fortunate that his Honour took a generous view of it in his Ruling No 8. His Honour, in his charge, told the jury that the attack was directed to the submissions which defence counsel expected would be made by counsel for the appellant, and not against counsel personally. It was probably about the only thing he could have done in the circumstances short of discharging the jury.

31 We are of opinion that his Honour was correct in declining to discharge the jury for this ill-advised statement. This is, however, not the end of things. We shall return to this matter when we come to weigh up the conduct of the defence case generally.

The trial of the proceeding miscarried by reason of the incorrect statement in his final address by Senior Counsel for the respondent that the appellant could have called any evidence she wanted from any source to rebut an allegation of recent invention (which allegation had not been made) and had not done so, and that the jury should thereby conclude that the appellant and her Counsel were 'grasping at straws'.

An important issue in the case was whether the appellant was awake for 29 hours before she suffered her fall. As we have mentioned,[18] the evidence showed that she performed three near consecutive shifts prior to the fall. The first and third were ordinary working shifts and the second was what was called a 'sleepover shift'. During a sleepover shift she was provided with a bed and permitted to sleep but she was to be available if a patient required her assistance.

33 The appellant's case depended upon the jury accepting her evidence that she had had little or no sleep during her sleepover shift. Apart from her own evidence, there was no other direct evidence that she did or did not sleep during that shift. She said that at the end of her sleepover shift she told her supervisor, Mrs Steele, that she had been up all night with a patient. Mrs Steele said that she did not recall this. It is apparent from Mrs Steele's evidence generally that she had no recollection of the events of that day other than those recorded in her notes, which contained no such entry. She said, however, that, had the appellant brought to her attention that she had had a sleepless sleepover shift and that she was tired, she would have been sent home instead of performing the third shift.

34 The other point on this topic, available and pressed by defence counsel, was that the appellant made no mention of fatigue as a cause of the fall until she told Dr Ivers in March 2006, some six years after the incident. Her credit, therefore, was a major issue on this matter as it was also in relation to her injuries.

35 The final address of defence counsel was a short one by modern standards. It occupies some 30 pages of transcript. In the course of this address the following was said:

I want to just talk to you briefly about a matter. It's a matter of law. As I said, that doesn't prevent me from talking about it, but anything I say about this, if I get it wrong, then the learned trial judge will correct me. There's an area of law known as recent invention and it occurs - I'll give you an example in this way: If I was driving along the road and - this is actually the facts of a trial that we were in a couple of years ago - and someone's driving along the road and they run off the road and they hit a tree and they go to the hospital and they say 'I swerved to miss a rabbit'. That lady then sued a truck driver who was behind her and said 'He was so close to me for so long' - I don't know if you've seen that film 'Duel' where the truck slammed up the back of the other car - 'for so long that I just got so agitated and frightened that I lost control and ran into a tree', fortunately she wasn't badly injured.

In that case it was suggested to her that the business about the truck was a recent invention because she had told the hospital she had swerved to miss the rabbit. Now in a normal case you can't call evidence to say that 'I was told by someone else that they had told their brother's sister's aunty that there was a truck behind me', okay, because that's hearsay. But when you allege recent invention, which is the way we're putting our case, we say that this is recently invented this sleep deprivation case, they can then call hearsay evidence. So they could have called any witness they like who could've come along and said 'Mrs Baulch told me in 2000 that she fell over because of sleep deprivation', okay? Now normally they couldn't do that because that's hearsay but now they can. Witness box empty - empty for one person to come along and say 'Mrs Baulch told me that she fell because of fatigue'.

That is what I understand the law to be and if I am wrong I will be corrected, but she had the right to call any evidence she wanted from any source to say, 'this is my friend Mrs Baulch, she told me at the supermarket just before Christmas in 2000 when I said to her, "why are you limping?" And she said, "well, I fell over at work because I've been working three shifts, I've been up all night, I collapsed, Lyndoch, I'm furious with them,"' and there's not one witness been called in the case, not one. They are grasping at straws in this case.

36 We make a number of observations about this passage. First, counsel on two occasions made it clear that he was stating a principle of law and that what he said was subject to correction by the trial judge.

37 Second, the expression 'recent invention' as a criticism of a witness's evidence had at the time a technical meaning in the law of evidence and procedure. It means something more than that the evidence is unreliable or fabricated; it is that the evidence is an afterthought fabrication.

38 Third, the effect of the rule referred to is that, if the judge determines that recent invention has been imputed to a witness A, he or she may permit evidence to be led that A has, prior to the time of the suggested invention, made a statement consistent with his or her testimony. Such a self-serving statement, which would otherwise be inadmissible, is admitted under this rule to disprove the suggested concoction by A and to support the credibility of A.

39 Fourth, evidence of the prior consistent statement by witness A may be led from any person who can give evidence of the making of the statement, including witness A herself.

40 Fifth, this evidence of prior consistent statement is not usually described as hearsay at common law.[19] It is apparent that defence counsel was, in the passage quoted above, speaking in a confused way of two separate legal concepts: recent invention and hearsay. Bearing in mind that the jurors, as lay people, would probably not have been alert to these concepts, we would not place very much importance upon this.

41 Counsel's statement to the jury, that the defence case was that the sleep deprivation story was recently invented, may be correct in lay terms. His conclusion that, as a consequence, the appellant might, without more, have called hearsay evidence is wrong. With leave of the trial judge she would have been entitled to call admissible evidence, if such was available, of the existence of a prior statement by her, whether oral or in writing (or perhaps even by inference), consistent with that part of her evidence alleged to have been recently invented. The obtaining of such leave would have required her counsel to have persuaded the trial judge that the attack on her credit was one of recent invention, as legally understood. Doubtless such an application would have been resisted on behalf of the respondent. Her counsel had no right to call any such evidence of prior consistency until these requirements had been satisfied.

42 But defence counsel then introduced a third concept. This is the principle for which Jones v Dunkel[20] is usually cited as authority. The thrust of his comment was that the jury might draw an inference adverse to the appellant from the failure of her counsel to call evidence of a prior consistent statement by her. The nature of this inference was never identified. Defence counsel, in a passage immediately after the quoted passage, turned to the inference to be drawn from the appellant's failure to call certain doctors who had treated her. He correctly told the jury that they should not speculate about what Doctors Paige, Viney and Castle might have said if called but that they, the jury, might infer that the evidence of those witnesses would not have assisted the appellant's case.

43 But if the jury were to have applied that principle to the suggested absent witness who might have given evidence of the appellant's prior consistent statements, they would have reasoned incorrectly. The absent medical witnesses whose identities were known may be supposed to have been available and able to give evidence as to her medical condition.[21] The absent witnesses who, it was said, might have given evidence of the appellant's prior consistent statements were never identified in evidence or in final address. Nor was there any reason for the jury to assume that any such witnesses existed, or that they were 'in the camp' of the appellant, or that they were available to be called, or that there was evidence of prior consistent statements by the appellant which they might have given.

44 Put another way, the evidence of the appellant was that she complained to Mrs Steele, before the time of the incident, of her sleepless night during the sleepover shift. Mrs Steele said that she had no recollection of this. The appellant, some six years later, spoke to Dr Ivers about fatigue as a cause for her fall. It was suggested to her in the witness box, and she agreed, that she had made no similar statement to any of her doctors prior to that. It was therefore open to defence counsel to comment upon this by inviting the jury to reject the appellant's evidence of her complaint to Mrs Steele and to conclude from her failure to mention her sleeplessness and fatigue for some six years that this sleeplessness and fatigue did not occur or that she did not consider that it was a cause of her fall. Counsel's comments about the significance of her failure to call unspecified witnesses, however, was to invite the jury to speculate about a matter which was not relevant to any issue. Importantly, the terms in which the erroneous invitation was couched and the context in which it was offered make it very likely that it would have distracted the jury from their proper function.

45 Following the final address of defence counsel, counsel for the appellant raised with the trial judge the propriety of the recent invention remarks which we have set out above.[22] He then continued to comment on the defence address, observing to the jury that the remarks were incorrect as a matter of law and that his Honour might deal with them in his charge.

46 On the following day his Honour, having heard argument on the point, ruled[23] that counsel for the respondent had inappropriately invited the jury to speculate when there was no evidence that the appellant had or had not made a prior consistent statement or to whom. His Honour concluded that this was sufficient to dispose of the point so that it was not necessary to consider the further criticism that such evidence would have been inadmissible without leave in any event. His Honour said that he would direct the jury to disregard the offending remarks.

47 Later that day, counsel for the appellant applied for an order discharging the jury for reasons which are the subject of Ground 1 and this ground. As we have mentioned,[24] this application was refused.

48 In his charge the trial judge instructed the jury that defence counsel had incorrectly stated the law on the topic of recent invention and that they should disregard his remarks made the previous day. The reason which his Honour gave for this was that the remarks invited them to speculate upon a matter for which there was no evidentiary basis. Counsel for the appellant later raised the matter as an exception to the charge. They submitted that his Honour's instruction was not sufficient to undo the mischief and that he should have gone further and explained to the jury that it had not been shown that it was legally open for the appellant to call the evidence whose absence was remarked upon. His Honour declined to redirect on this matter.

49 There is much force in this submission. The practical difficulty facing the trial judge was that defence counsel had inappropriately raised in the minds of the jury a question which they should not have asked themselves; one which could not easily be put aside. His Honour was in a very difficult position. It was, of course, open for the jury to consider how it was that the appellant did not mention to her doctors for some four years that fatigue was a cause of her fall. There was evidence to support such a question. Her failure to call evidence of prior statements about this cause to neighbours, family and friends would have struck a responsive chord. The reason given by his Honour for them to put this out of their minds - that there was no evidence that she had spoken to others about this matter - would not have stifled the speculation. It would have reminded them that she had offered no such evidence to corroborate her version of the incident. They were not told that this would not have been possible without leave. Even so, it is difficult to be confident that the damage caused by counsel's ill-advised comment could have been cured.

50 We consider that the complaint made under this ground has been made out. We would grant a new trial on this ground alone.

51 Ground 4 of the appellant's notice of appeal asserts a miscarriage of justice occasioned by defence counsel having told the jury in the course of his final address that 'anyone injured at work in any circumstances is entitled to receive payment for their loss of income'.

52 In argument on the appeal, counsel for the appellant contended that his client's entitlement to workers' compensation was an extraneous matter, the reference to which, by defence counsel, was calculated to divert the jury's attention from the real issues before them. Thus, so the argument went, the jury was invited to consider the appellant's case in light of an irrelevant consideration, namely her entitlement to no-fault workers' compensation.

53 The passage in counsel's address of which the appellant complains needs to be set out in full to enable the validity of the complaint to be assessed. It occurs about one page of transcript into counsel's address and after he has warned the jury against allowing sympathy for the appellant to affect their judgment. He said:

It is not just a case of 'Well look, she was injured at work and therefore she must be paid compensation'.

The system operates this way and you may be wondering why it is that you've heard no evidence about the costs of all of these procedures that she's had and that's because the system operates like this: anyone injured at work in any circumstances is entitled to receive payments for their loss of income and their medical and like expenses, so you can assume because you've heard nothing about the cost of her treatment that that's all been paid under the workers' compensation system and it has been paid and will continue to be paid if she needs any treatment.

Now that applies to anyone and that is, as I said to you I think - or it has been raised to you - if you were walking along reading a newspaper and walked into a chair and broke your knee that's obviously your fault and there's no requirement for the employer to put a sign on the chair saying 'Do not read a newspaper as you approach and walk into this chair'.

She takes the next step and the next step is 'I'm not happy with my compensation for fixing up my knees' and that is paying for the medicals and so on, she takes the next step and the next step that she takes is 'I want to go further than that. I want to sue the employer for damages for pain and suffering and loss of enjoyment of life and I want a very large sum of money for that'.

Just on that point: at one stage His Honour interrupted me, because he's the trial judge, he knows the law and he's the boss of the law, but you're the boss of the facts and at one stage His Honour interrupted me and said 'Members of the jury - just stop there, [defence counsel] - Members of the jury, I just want you to know that it's perfectly right and proper for anyone to issue proceedings in any court for anything that they want to prove'. That's right and I wasn't suggesting anything to the contrary. What I was suggesting is that she was bringing a claim that she couldn't win.

54 This passage had the effect of informing the jury that the appellant was entitled to receive compensation for medical and like expenses incurred, and for loss of income suffered as the result of a work injury, independent of fault and that she had received such compensation. It went on to say that she would continue to be paid if she needed treatment. Although on a strict reading this latter statement might be said to be referring only to the cost of treatment, it is ambiguous and may well have been interpreted by a listener as meaning that she would be entitled to receive future payments of compensation, not only for medical expenses but also for lost income.

55 In the next paragraph counsel said that, although the appellant had received compensation 'for fixing up [her] knees', she was not happy with that and wanted a 'very large sum of money' for pain and suffering and loss of enjoyment of life. The passage quoted finishes with counsel confirming the appellant's right to sue but that she was bringing a claim she could not win.

56 In Chatzipantelis v Grimwade Castings Pty Ltd[25] the Full Court of the Supreme Court (Winneke CJ, Barry and Gowans JJ) were concerned with a judge's charge to a civil jury in an industrial accident case. In the course of that charge the trial judge described the workers' compensation system as it existed in Victoria at that time. He contrasted that system with a claim for common law damages and told the jury that if the plaintiff was unsuccessful at common law he would be left to get whatever he was entitled to under the Workers' Compensation Act. The Full Court held that a charge containing such an explanation introduced

an irrelevancy of a kind that judicial experience shows is likely to distract the minds of the jury from their task of deciding the question of fact committed to them.[26]

57 The Court recognised that it is common knowledge that there existed, at that time, legislation relating to workers' compensation, but that to accept that fact was not to accept that any reference to such matter was proper in a judge's charge. Their Honours considered that such a reference could cause a jury to think that their inexact notions concerning such matters may properly be used in their deliberations.

58 The Full Court accepted that the mention of workers' compensation in a common law trial would not always be an irrelevance. For example, where under the legislation then in force a plaintiff's claim might be defeated by his having elected to accept workers' compensation rather than sue for common law damages, reference to workers' compensation would not be irrelevant. Indeed in such a case the provisions of the applicable statute may have needed to be explained to the jury and could properly have been the subject of counsel's address.

59 In Rowe v Edwards[27] Evatt J had no difficulty in attributing an unreasonably low verdict for a plaintiff to a question asked by counsel for the defendant of a witness at the trial as to whether he (the witness) realised that if the plaintiff was unsuccessful in the action he would be entitled to workers' compensation. Although the question was objected to and disallowed, Evatt J said he thought that it explained the trivial verdict.[28] Dixon J thought this explanation to be nothing more than conjecture, but nevertheless joined with Rich, Starke, Evatt and McTiernan JJ in ordering a new trial, generally on the ground that the verdict was manifestly inadequate.

60 In Fitzpatrick v Walter E. Cooper Pty Ltd,[29] an industrial accident claim by a widow for herself and her children pursuant to Lord Campbell's Act, Dixon J characterised a reference by defence counsel to the plaintiff's workers' compensation rights as a reference which 'could only contribute to the chance of error'.[30] In that case, the plaintiff's counsel, in opening, had said that the action was the plaintiff's only remedy for the loss that she had suffered, and that the death of the worker had left them penniless. In his final address counsel for the defendant countered this statement by saying that a verdict for the defendant would not deprive the widow and children of their rights under the Workers' Compensation Act. Upon the plaintiff's counsel objecting, the trial judge told the jury to put the matter out of their minds as it had nothing to do with the case and, subsequently, answered a question from the jury foreman in similar terms. Dixon J considered that the trial had not miscarried because of counsel's introduction of the topic of workers' compensation into his final address. He said that the Court would be justified in setting aside the verdict only if, upon a proper consideration, the trial had miscarried. He referred to the manner in which counsel's reference was made, the treatment it received at the hands of the trial judge and the nature of the dangers to which it left the appellant exposed as all being factors which had to be taken into account in deciding whether the trial had in fact miscarried. He thought it had not in that case.

61 McTiernan J said that a reference by counsel for a defendant to a plaintiff's rights under the Workers' Compensation Act was mischievous - as mischievous as the statement by counsel for a plaintiff that the defendant was insured. In the event, his Honour did not decide the question of whether the reference to workers' compensation had led to a miscarriage of justice but, instead, thought that the plaintiff should have a new trial because the verdict was against the evidence and the weight of the evidence.

62 In the instant case, the passage quoted above from defence counsel's address may be seen to have conveyed to the jury at least the following:

It had heard no evidence concerning medical expenses because everyone injured at work, even if by their own fault, is entitled to receive payments for their loss of income and their medical and like expenses.

The plaintiff has been fully compensated for any loss brought about by her incurring medical expenses and loss of income.

The plaintiff would continue to receive such compensation if she needed any further treatment in the future.

The plaintiff is not happy with the payments of compensation she has received and wants a very large sum of money on top of those payments.

The plaintiff is entitled to sue but is not entitled to win.

63 The obvious argument being urged upon the jury is that the appellant is greedy; she should be content with her workers' compensation payments; her case is weak; she has been paid anyway and her claim should be dismissed.

64 The juxtaposition by defence counsel of a comment on the weakness of the appellant's case with comments about her workers' compensation entitlements can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injuries which she received. The argument put by counsel was that she should not get damages because she had received and would continue to receive workers' compensation; that the jury could safely find for the respondent, secure in the knowledge that the appellant had been and would be compensated in any event.

65 There can be no justification for this irrelevance. Nor was there any justification for counsel's cross-examination of the appellant as to her receipt of workers' compensation payments, coupled with questions as to her knowledge that an injured worker is entitled to workers' compensation even if injured as a result of her own fault. As the Full Court in Chatzipantelis observed:

Had counsel for the defendant mentioned that plaintiff would (or might be) entitled to compensation under the Workers Compensation Acts, there is no doubt it would have been, in the language of Dixon J (as he then was), in Fitzpatrick v Cooper, supra, 'a gratuitous irrelevancy', and his mention of it would have been indefensible.[31]

66 In this case, the question of the appellant's receipt of workers' compensation may have been relevant on one basis - that the damages to which she would be entitled if she was successful in proving negligence may need to be calculated taking into account the principle expounded by the High Court in Fox v Wood.[32] If a plaintiff who has suffered loss of earnings as a result of injuries caused by the defendant's negligence has received payments of weekly compensation, she is entitled to recover damages representing the additional loss occasioned by her having to repay the gross amount of that workers' compensation from the verdict when she had the benefit of only the net amount after tax had been deducted. That a mention of workers' compensation in that context might not have been irrelevant does not mean that an argument of the kind employed by defence counsel in this case can be justified. In fact, the Fox v Wood[33] component in this case was agreed between counsel, as is often the case, thereby obviating the need for anything but the briefest reference to workers' compensation.

67 Although counsel for the appellant made an application after defence counsel's address that the jury be discharged on the basis of parts of that address, he did not seek that remedy in respect of the part now under discussion. He confined the grounds of that application to a failure by defence counsel to comply with the rule in Browne v Dunn[34] and to his addressing the jury on what he described as 'recent invention'. Nor did counsel for the appellant seek any direction concerning the workers' compensation matter or take any exception to the judge's charge when his Honour did not deal with the issue himself.

68 Counsel for the respondent, in this Court, contended that reference by defence counsel at trial to workers' compensation

was an explanation in address of the reason why there had been no evidence about the cost of the [plaintiff's] medical treatment and the difference between a claim for workers' compensation and a claim for damages.

He said it was explanatory of earlier evidence given by the appellant - presumably a reference to the irrelevant cross-examination of the appellant by defence counsel to which reference has already been made. He also relied on the fact that no relevant objection was taken by counsel for the appellant, nor was any direction sought from the trial judge to counteract the effect of the passage in defence counsel's address of which the appellant now complains.

69 In his directions to the jury, the trial judge referred to the impugned passage and said that defence counsel had 'told you about the appellant's statutory entitlements under the Accident Compensation Act'. His Honour said both that the appellant had the right to sue her employer and that the real issue for the jury was whether she had demonstrated actionable negligence. He did not, however, directly refer to the false issue created by counsel for the respondent when he referred to the appellant's right to statutory benefits or counsel's suggestion (by clear implication at least) that the appellant was greedy in wanting what he described as 'a very large sum of money'. Thus the jury were left to decide the case with an uncontested, irrelevant and misleading submission concerning a false issue to the significant prejudice of the appellant.

70 In Rees v Bailey Aluminium Products Pty Ltd,[35] this Court (Ashley and Redlich JJA, Coghlan AJA) examined a trial in which counsel for the defence had behaved improperly on a number of occasions during the trial such that it considered that a miscarriage of justice should be inferred. A new trial was ordered. In reaching that conclusion, the Court considered a number of authorities concerned with the duty of the Court to ensure a fair trial of the issues joined between parties to a civil action, particularly a civil action tried by a jury. In the course of a joint judgment, their Honours said:

It has been repeatedly said that a trial judge should not hesitate, of their own initiative, if in the course of address counsel has made a serious error or misconducts himself or herself, to interrupt the address so as to immediately correct the effect of such error; for it will be difficult for the other party to make such an application in front of the jury. In Smout, Beach J expressed a strong view that where the trial judge concludes that what counsel has said was wrong or improper, and that it would be dangerous for the jury to take into account what counsel has said, the trial judge should immediately interrupt the address to correct counsel and give an appropriate direction (citations omitted).[36]

71 In Vozza v Tooth & Co Ltd,[37] Sugerman and Manning JJ expressed a similar view:

[A]s a general rule, we think that it is not only within the power of a judge to take whatever steps may be necessary to control the due conduct of the trial, but that it is proper for him to do so. If it appears likely that prejudice may possibly result from anything counsel says or does, delay may aggravate the position, and it is preferable that appropriate directions be given and that a corrective warning be issued at once.[38]

72 In this case, there was no interruption to counsel's address, no objection from counsel for the appellant and no direction from the trial judge in his charge to the jury which acknowledged the error on counsel for the respondent's part or sought to eliminate its effect. Simply reminding the jury of the true issue they had to decide some time after the problem arose, as his Honour did, without specifically directing them in strong terms as to the irrelevance of counsel's comments and their prejudicial effect, was insufficient. The offending argument was put by defence counsel at the beginning of the first speech the jury heard. Indeed, even if there had been an immediate response from the judge at the time the error was made or a strong direction given later in his charge, it must be regarded as extremely doubtful that the situation could have been adequately recovered. The appellant's case may well have already been fatally affected.

73 In Croll v McRae,[39] the Full Court of New South Wales was concerned with a motion for a new trial on the ground that counsel for the plaintiff at nisi prius had disclosed to the jury, by a question in cross-examination, that his client had received a without prejudice offer of settlement from the defendant. In granting a new trial, the Full Court reviewed a number of authorities and concluded:

The jurisdiction of the Appellate Court to interfere with the verdict of a jury and to order a new trial is based upon the right of every litigant to have his case fairly tried, free from bias and prejudice, and free from the intrusion of any extraneous matters calculated to influence the jury improperly in arriving at a determination. There may be cases where the impropriety complained of is of such a character, and the effect of it upon the minds of the jury is so purely speculative, that the Court cannot say that there is any reason to suppose that it improperly influenced them, but wherever, to use the language of Sir Samuel Griffith CJ, in David Syme v Swinburne,[40] there is reason to believe that the course of justice has been substantially affected, then in my opinion the Court has power - a discretionary power no doubt - to set aside a trial already had and to order a fresh inquiry.[41]

74 In Chatzipantelis,[42] the Full Court extended relief to the unsuccessful plaintiff, notwithstanding his counsel's failure to take exception to the judge's charge or to seek a discharge of the jury. The Court considered that a redirection would not have corrected the matter. And in that case, of course, the irrelevant material had been put before the jury, not in the course of an ad hominem attack on the plaintiff as part of a partisan argument, but as an objective instruction about the plaintiff's rights under workers' compensation legislation as compared to his right to common law damages. There was no allegation of greed nor any comment on the strength or weakness of his common law case. The present case is, in this respect, a stronger case than Chatzipantelis.[43]

75 Even if the trial judge in this case had, at some stage, given an appropriate direction concerning defence counsel's address, it would be difficult to feel any real satisfaction that the jury had not been irretrievably prejudiced against the appellant by his irrelevant and inappropriate argument. As Street CJ said in Croll v McRae,[44] after referring to counsel's disclosure to the jury of an offer of settlement:

Human nature being what it is, of what use is it to tell them to disregard such a statement. The poison, once instilled into their minds, must inevitably work, and who could possibly feel any confidence in a verdict in the plaintiffs' favour arrived at after so prejudicial a statement has been made. In such a case a warning in the summing up to disregard it is only to revive their recollection of it, and to renew its damaging potency.[45]

76 In Rees[46], as in Smout[47] and another similar case, Strange v Hybinett,[48] the Court was concerned with what it clearly regarded as misconduct by counsel. In each a new trial was ordered. In this case, at least as far as this ground of appeal is concerned, it is immaterial whether what counsel did was done maliciously or in ignorance of the impropriety of his argument. It is the probable effect on the jury and the unacceptable risk of the production of a miscarriage of justice which is important.

77 In conclusion as to this ground, it is necessary to say something about the so-called 'robustness' of the common law jurisdiction - especially with respect to trials conducted before juries. It seems that the phrase 'a robust jurisdiction', when describing jury trials, is sometimes used to try to justify behaviour by counsel, including behaviour in the putting of arguments to the jury, which would not be regarded as appropriate in other litigation. In Smout,[49] Beach J acknowledged the use of the expression and accepted that, in the discharge of his obligations to his client, counsel may properly regard it as necessary to use robust language in an address, even robust language of a colloquial nature. But his Honour also emphasised the heavy obligation on counsel not to abuse the privilege he or she enjoys in respect of anything said in Court. He said:[50]

If in the course of final submissions counsel puts unfair arguments or arguments which are totally irrelevant and which are calculated to influence the jury improperly in arriving at its verdict, he may well achieve the result that the jury is discharged by the trial judge or any verdict favourable to his client set aside by an appellate court. That will be so because every litigant has the right to have his case fairly tried, free from the intrusion of any extraneous matters calculated to so influence the jury: see Croll v McRae[51] and Chatzipantelis v Grimwade Castings Pty Ltd.[52]

78 Ground 4 of the appellant's notice of appeal should be upheld. Even taken alone, it justifies appellate interference by way of an order for a new trial. In the context in which counsel's creation of a false issue occurred, the judge's direction in respect of it, and notwithstanding counsel for the appellant's apparent lack of concern, nothing short of a new trial will suffice to remedy the situation.

79 Ground 5 complains of another submission made by defence counsel in his final address at trial. It was to the effect that, when the writ was issued and the case started, the appellant's case was going to be a case about a 'bad floor or spillage'. The relevant part of counsel's address was as follows:

You might have thought that when this writ was issue[d] and when this case started that this was going to be a case about a bad floor or spillage. Remember what was put to her about what was in Mr Waddell's report, I'll come to that a bit later, that she told him about the towel and there was condensation and so on. Remember that Mr Waddell did not give evidence in this case and there is absolutely no argument that there's nothing wrong with this floor. As I said to a witness, it would be like the old roller derby's with people just going everywhere, over the fence and so on, on their roller skates around the track, they'd be just falling everywhere. Could you imagine a slippery floor in an activities room of a nursing home for elderly patients?

80 We interpolate that this reference to Mr Waddell's report was an inappropriate reference to a matter which had only been put to the appellant in cross-examination but not admitted. The report itself was not in evidence. This was the subject of complaint in Ground 6, a ground which was not pressed.

81 The writ which commenced this proceeding was filed on 4 July 2007. A statement of claim dated 6 September 2007 was subsequently filed. The writ makes no mention of any defect in the floor at the respondent's workplace. The statement of claim contains one Particular of Negligence alleging a failure by the respondent 'to provide any or any adequate and non-slip floor to the premises.' However, it is clear from the balance of the document (including the other particulars of negligence) that the appellant's complaint against the respondent, from the commencement of the proceeding onwards, related to sleep deprivation, her working hours and the way in which her roster was organised.

82 In the course of the trial the appellant was cross-examined as to the state of the floor at her workplace when she fell. She maintained, under that cross-examination, that the floor where the fall occurred was polished vinyl, that she was very tired, and that she slipped. It is clear that her case was that the cause of the fall was her tiredness and not that there was any inadequacy in the floor itself - despite the particulars of negligence concerning the floor in her statement of claim.

83 For defence counsel to have argued to the jury that the appellant's case was, in fact, based on a defective or unsafe floor and that that was how it was pleaded was disingenuous. He must have known of the case pleaded in the statement of claim. It was factually incorrect of him to say 'When this writ was issue[d] and when this case started this was going to be a case about a bad floor or spillage'. This is another example of the unfair technique of raising false issues to distract the attention of the jury from the true issues which they were to determine.

84 Had defence counsel emphasised to the jury that the appellant had not mentioned fatigue or tiredness as a cause of her fall to any doctor before 2006 and argued that that cast doubt upon her case as it was presented, he could not have been criticised. That was the evidence. To have misstated her case for the purpose of ridiculing it as he did was unfair to the appellant. It should have earned defence counsel a rebuke and a correction from the trial judge, even by an interruption to his address if his Honour thought that that was required. At the least it should have received a comment and a correction in the judge's charge.

85 Whilst the comments of counsel complained of in this ground were undoubtedly inappropriate and unfair, taken alone they would not be enough to require a new trial. This is particularly so as the point referred to above as to the appellant's history given to her doctors could have been legitimately made. Nevertheless, their effect will be considered in the context of the trial as a whole in reaching a conclusion as to the relief to which the appellant is entitled.

86 This ground concerned a complaint as to defence counsel's use of a report by an ergonomist which was not before the Court in his final address. In the event, the ground was not pressed and there is no need for it to be considered further.

87 This ground concerns an alleged error by the trial judge in failing to discharge the jury on the application of counsel for the appellant at the conclusion of final addresses. The application was made on three grounds to which reference has already been made, namely, failure by defence counsel to comply with the rule in Browne v Dunn,[53] his addressing the jury on what was described as 'recent invention', and his comment that the appellant's damages claim was ridiculous and known by her counsel to be so.

88 The trial judge ruled against discharging the jury in two separate rulings, Nos. 7 and 8.[54] In his Ruling No. 7 his Honour dealt with the Browne v Dunn [55] question and the 'recent invention' point. He refused a discharge on either of those grounds and commented that the jury had understood, in each case, the directions he had given in relation to the substance of those grounds.

89 In his Ruling No. 8 his Honour refused a discharge of the jury on the 'ridiculous figures' point. He directed the jury that the comment by defence counsel related to the appellants case, not to her counsel.

90 The grounds upon which each of these applications was based were also pleaded as grounds of appeal before this Court. It is, accordingly, unnecessary for them to be considered separately in the context of the correctness or otherwise of the trial judge's refusal to discharge the jury. At this point, the only question is whether the conduct of defence counsel in this trial was such as to require this Court to intervene and order a new trial. The matters raised under this ground will be considered in that context.

91 The remedy sought by the appellant is a new trial. In order to be granted that remedy, the appellant must demonstrate that to allow the judgment of the Court to stand would effect a substantial wrong or miscarriage of justice. Put another way, she must convince this Court that she has not received a fair trial of her case. In determining that question, the whole of the trial must be considered in the context in which it was conducted. The conduct of defence counsel, the response (if any) of counsel for the appellant, and the directions and rulings of the trial judge are all relevant.

92 The appellant is entitled to a new trial in respect of each of grounds 3 and 4, at least. The conduct of defence counsel on the issues raised by those grounds has, of itself, occasioned a substantial wrong or miscarriage of justice. It is not improbable that in reaching the verdict which it did the jury was influenced by those parts of defence counsel's address which were the subject of those grounds. Nothing the trial judge did was sufficient to counteract the effect of what defence counsel had said. But there was probably nothing his Honour could have done, short of discharging the jury and re-commencing the trial, once counsel had created and addressed on the false issues complained of in these grounds.

93 There is also considerable merit in grounds 1, 2 and 5. When they are considered with grounds 3 and 4, the case for appellate intervention in the form of an order for a new trial becomes compelling, even if some them may not, if taken alone, have warranted such intervention.

94 The verdict of the jury in this matter must be quashed and the judgment thereon entered by the Court set aside. A new trial of the proceeding will be ordered.

[1] Counsel on the appeal were not counsel who appeared at trial.

[8] [1970] VicRp 104; [1970] VR 840, 848 (Newton J).

[10] Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 371 (Gibbs J).

[11] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848 (Newton J).

[12] Levinge v Director of Custodial Services (1987) 9 NSWLR 546, 560 (McHugh JA).

[13] Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219, 225 (Glass JA).

[17] Smout v Smout [1989] VicRp 74; [1989] VR 845, 853 (Beach J) ('Smout').

[18] See para [7] above.

[19] But compare Hodge Malek (ed), Phipson on Evidence (16th ed, 2005) [29-08]-[29-10].

[20] [1959] HCA 8; (1959) 101 CLR 298, esp 312 (Menzies J) and 321 (Windeyer J).

[21] O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916.

[22] See [35] above.

[24] See [21] above.

[25] [1966] VicRp 33; [1966] VR 242 ('Chatzipantelis').

[26] Ibid 245 (Winneke CJ, Barry and Gowans JJ).

[27] [1934] HCA 32; (1934) 51 CLR 351.

[29] [1935] HCA 82; (1935) 54 CLR 200.

[31] [1966] VicRp 33; [1966] VR 242, 246 (Winneke CJ, Barry and Gowans JJ).

[32] [1981] HCA 41; (1981) 148 CLR 438.

[35] [2008] VSCA 244 ('Rees').

[36] Ibid [99] (Ashley and Redlich JJA, Coghlan AJA).

[37] [1963] NSWR 1675.

[38] [1963] NSWR 1675, 1684 (Sugerman and Manning JJ).

[39] (1930) 30 SR (NSW) 137.

[40] [1909] HCA 92; (1909) 10 CLR 43.

[41] (1930) 30 SR (NSW) 137, 143 (Street CJ, James and Halse Rogers JJ concurring).

[42] [1966] VicRp 33; [1966] VR 242.

[44] (1930) 30 SR (NSW) 137.

[45] Ibid 144 (Street CJ, James and Halse Rogers JJ concurring).

[46] [2008] VSCA 244.

[47] [1989] VicRp 74; [1989] VR 845.

[48] [1988] VicRp 50; [1988] VR 418.

[49] [1989] VicRp 74; [1989] VR 845.

[51] (1930) 30 SR (NSW) 137, 143 (Street CJ, James and Halse Rogers JJ concurring).

[52] [1966] VicRp 33; [1966] VR 242.