Plaintiff v Defendants

2 The plaintiff is the adult son of the defendants. After being seriously injured during the course of his employment with them at the family farm, he issued proceedings in this court for damages.

3 The proceeding was founded on tort and breach of statutory duty and commenced by a writ which signified that trial with a jury was required. The defendants denied any liability and in the alternative pleaded contributory negligence. They gave notice that they too required trial with a jury. Pursuant to r 47.02(1)(a) and (3), the trial therefore had to be conducted with a jury unless the court ordered otherwise. The court made no such order and the trial was conducted with a jury.

4 The jury found that the defendants had not been negligent but had breached their statutory duty towards the plaintiff. The jury assessed damages in a substantial amount on that basis. It found that the plaintiff had contributed to the cause of his injuries in the proportion of 70 per centum and returned a verdict accordingly. The trial judge refused the plaintiff's application for judgment despite the jury's verdict.[1]

5 The plaintiff appealed to the Court of Appeal against the finding of the jury that the defendants had not been negligent and that the plaintiff had committed contributory negligence. The appeal was substantially successful. The Court of Appeal set aside the verdict of the jury on the first of these issues and determined that the defendants had been negligent.[2] It remitted for hearing and determination two questions: whether there was contributory negligence on the part of the plaintiff and, if so, by what percentage damages should thereby be reduced. These are the questions which are to be determined in the present trial.

6 The Court of Appeal left it to the trial judge to determine, after hearing the parties, how the rehearing of the remitted questions should proceed. The vehicle chosen by the parties for the consideration of that question is the application under r 47.02(3) for a direction for trial without a jury which I am now determining.

7 Trial with a jury of a proceeding founded on tort (including breach of statutory duty) is an integral feature of the administration of justice in this court. This reflects the general importance of trial by jury, as explained by Jordan CJ in Commissioner for Railways v Corben:[3]

Trial by jury is an institution of great value. It enables the direct participation by a large body of citizens in the important branch of the business of government which is constituted by the administration of justice. And it confers upon litigants the advantage of the knowledge and experience possessed by their fellow citizens of the affairs of ordinary workaday life, which are of great value in dealing with the type of case with which a Court of common law is in the main concerned.

8 One aspect of the importance of trial by jury is of particular relevance in the present case and counts against the granting of the plaintiff's application. As held by the Court of Appeal, whether and to what extent the plaintiff contributed to the cause of the injury by his own negligence involves a consideration of the relative culpability of the plaintiff and the defendants for departing from the applicable standard of care (as well as the relative importance of their acts in causing the damage).[4] On both sides, the applicable standard of care is the reasonable standard of care which is the foundation of the law of negligence. Juries are particularly well-suited to carrying out the function of applying that standard of care as it involves consideration of what is reasonable according to the values and experience of ordinary members of the community. Trial by jury gives effect to the legitimate expectation of parties (in this case, the defendants) in proceedings founded on tort (including breach of statutory duty) that evaluative determinations of this kind will be made by persons who, as nearly as possible, embody those values and that experience. In such cases, trial by jury enhances public confidence in the administration of justice because it gives representatives of the community responsibility for applying a fundamental legal standard in which the whole community has an interest and on which ordinary people are well qualified to speak.

9 So it is that, under r 47.02, parties complying with the specified procedure have a prima facie right to trial by jury of proceedings founded on tort (including breach of statutory duty)[5] from which the provisions of the Civil Procedure Act 2010 (Vic) do not detract.[6] The right is not absolute and the court can make a contrary order under r 47.02(3), which allows it to direct trial without a jury where 'in its opinion the proceeding should not in all the circumstances be tried before a jury'. But trial by jury is the usual mode of trial in such cases and a party should not be deprived of their right to a trial of that kind unless good cause is shown.[7]

10 The principles governing the exercise of the discretion in r 47.02(3) to direct trial without a jury were not in issue in this case and clearly presented in the very helpful submissions made on behalf of the defendants. Good cause may be established by reference to a number of considerations, including the length and complexity of the trial[8] and the administration justice.[9] It was submitted for the defendants that nothing would justify defeating their right to have the questions remitted by the Court of Appeal determined with a jury.

11 I accept the defendants' submission that no consideration of utility or convenience supports a trial by judge alone. If it were to go ahead with a jury, the trial would be of moderate length, perhaps of four to five days in duration. In my view, the trial would be reasonably manageable from a practical point of view. There would be no significant saving of time or resources in having the trial before a judge alone. The case is distinguishable from others in which the discretion to direct trial without a jury has been exercised due to the length and complexity of the trial.[10]

12 However, by reason of the splitting of the procedure for determining the central questions which has occurred in the present case, the plaintiff would be unfairly disadvantaged by the conduct of a trial before a judge and jury of the remitted questions. That unfair disadvantage can only be neutralised by a trial before a judge alone. It is therefore in the interests of the administration of justice that the trial be conducted without a jury.

13 In the trial before the jury, the plaintiff obtained against the defendants a verdict of breach of statutory duty and an award of damages. In the appeal, he obtained against the defendants a finding of negligence. On remitter from the Court of Appeal, it remains for the court as presently constituted to determine the question of contributory negligence.

14 In a trial with a jury of a civil proceeding like the present, the question of contributory negligence (when it is raised) is normally determined at the same time as the questions of primary liability and damages. The questions for the jury are whether the defendant has been negligent or breached a statutory duty, whether the plaintiff has suffered damages in consequence and whether the plaintiff has committed contributory negligence. The determination of the question of contributory negligence is made in that total setting.

15 That cannot happen in the present case. If the remitted questions were to be determined with a jury, the question of contributory negligence would be determined without the jury having also determined the questions of liability for breach and damages. In my view it is inevitable that the main focus of the jury's attention would be on the plaintiff's alleged contributory negligence. It would be as if the plaintiff was on trial for committing contributory negligence.

16 By contrast, in the usual case, it is the defendants who are on trial for breaching a duty; where that is established, the plaintiff's contributory negligence (if any) is considered in relation to the question of damages for injury. According to the applicable principles, when calculating the plaintiff's contribution it is necessary to have regard to the relative moral culpability and practical importance of the departure by the defendants and the plaintiff from the standard of reasonable care. A jury which has heard the evidence in relation to all of the issues is well-placed to make this evaluative judgment. Before such a jury, the parties are on a level playing field. A jury in the present case cannot be in that position because the issues of liability and damages on the one hand and contributory negligence on the other have become procedurally separated.

17 In my view, because of this separated of the procedure for determining the issues, there is a material risk that, when addressing the issue of contributory negligence, a jury would fail to pay due regard to the defendant's negligence and breach. Although the jury would be properly instructed on the applicable legal principles and would be given evidence of or told everything they need to know, the focus of the trial would be on the plaintiff's contributory negligence. Not even careful judicial oversight of the trial could adequately mitigate against the risk I have identified.

18 I have taken into account that the defendants have agreed to present all of the evidence which the plaintiff requires. No impediment is being placed in his way in calling additional evidence. I cannot fault the defendants for the manner in which they intend to conduct a trial with a jury. However, none of this alters the fact that the course of procedural events has inured to the plaintiff's fundamental disadvantage. Having regard to the course of those events, it is neither practicable nor desirable to recreate the whole trial proceeding before a new jury for the purpose of answering the remitted questions. In relation to the determination of those questions, the only way that the parties can be placed back on a level playing field is by directing trial without a jury. It is in the interests of the administration of justice that I so order.

19 There is one other consideration. This is not generally a legally complex case. Trial before a judge alone is not justified on that general ground. But one feature of the case is legally complex and that is the connection between the defendants' negligence and breach of statutory duty on the one hand and the contributory negligence assessment which must be made in relation to the plaintiff on the other. This is not a straightforward case involving consideration of breach of duty of care at common law as against contributory negligence. The interplay between the two elements of liability and the issue of contributory negligence is a matter of some complexity. This supports a trial before a judge alone.

20 Therefore, there will a direction pursuant to r 47.02(3) for trial without a jury of the questions remitted for consideration by the Court of Appeal.

[1] Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011) (Kyrou J).

[2] Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013) (Tate and Osborn JJA, Whelan JA dissenting) ('Pasqualotto').

[3] [1938] NSWStRp 55; (1938) 39 SR (NSW) 55, 58.

[4] Pasqualotto [2013] VSCA 21 (19 February 2013) [64] (Osborn JA), citing Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494.

[5] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249, 259-60 [39] (Warren CJ, Nettle and Ashley JJA).

[8] Birti v SPI Electricity Pty Ltd [2011] VSC 566 (11 November 2011) [15] (J Forrest J) ('Birti').

[9] Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1, 6 (Marks J).

[10] Cf Birti [2011] VSC 566 (11 November 2011) (J Forrest J); Matthews v SPI Electricity [Ruling No 8] [2012] VSC 318 (27 July 2012) (J Forrest J).