Ross v Gruma Oceania Pty Ltd (ACN 117 976 002) (Ruling) [2021] VCC 992 (23 July 2021)

Last Updated: 24 July 2021

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

GENERAL LIST

Case No. CI-20-00161

JOANN ROSS	Plaintiff
v
GRUMA OCEANIA PTY LTD (ACN 117 976 002)	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 July 2021
DATE OF RULING:	23 July 2021
CASE MAY BE CITED AS:	Ross v Gruma Oceania Pty Ltd (ACN 117 976 002) (Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VCC 992

RULING
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Subject: PRACTICE AND PROCEDURE

Catchwords: Mode of trial – entitlement to jury to decide part of claim – separate trial of issues –– exercise of Court’s own discretion

Cases Cited: Mahony v J Kruschich (Demolitions) Pty Limited [1985] HCA 37; (1985) 156 CLR 522; Victorian WorkCover Authority (Vic) v Hartley (2010) 27 VR 116; Ironmonger v Gunnedah Shire Council [2021] NSWPIC 48; Karam v Palmone Shoes Pty Ltd [2010] VSC 3; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Birti v SPI Electricity and Ors [2011] VSC 566

Ruling: Jury to answer questions in respect of liability only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie with Mr G Smith	Zaparas Lawyers
For the Defendant	Mr G Hevey with Mr R Kumar	Russell Kennedy Lawyers

HER HONOUR:

1. From 2009, Ms Ross worked as a process worker with the defendant, Gruma Oceania Pty Ltd, a factory which produced Mexican food. In this jury trial, Ms Ross seeks damages in relation to two causes of action:

(a) The first relates to a fall that she alleges occurred when she slipped on a wet floor at the staff entrance of the defendant’s premises on 26 July 2012 (“the first cause of action”). Ms Ross claims that in this incident, she suffered an injury to her left ankle and foot, including an avulsion fracture, and she also claims a psychiatric injury, including Post-Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety.

(b) The second cause of action relates to prolonged exposure to bullying and harassment from April to July 2013, arising from Ms Ross’ return to work following her physical injury. Ms Ross also claims a psychiatric injury, including Post-Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety arising from this cause of action.

2. The defendant denies liability in respect of both claims, and also alleges contributory negligence in respect of the first cause of action. Further, the defendant denies that Ms Ross injured her left ankle in the first cause of action.
3. Towards the conclusion of Ms Ross’ evidence, on Day 5 of the trial, I proposed to the parties that the trial be split, such that it would proceed before the jury, solely in respect of liability. Then, in the event that the jury was satisfied that the defendant was negligent in respect of either or both causes of action, I would go on to hear evidence in respect of Ms Ross’ damages and I would then assess and award such damages, as a judge sitting alone.
4. At the time, there were two reasons why I considered this to be an appropriate course:

(i) to charge the jury in respect of both negligence and damages, with two causes of action, contributory negligence and possible overlapping damages, would be extremely complex. To demonstrate this, I provided counsel with proposed jury questions and a possible question trail, which I considered were in a form similar to what I would give the jury if I was required to charge them on all matters;

(ii) if the jury was only to answer questions in respect of liability, it could limit the evidence they would need to hear. In circumstances where this trial is continuing under COVID-19 circuit breaker lockdown restrictions, I considered it was beneficial to limit the time the jury would need to attend Court for the trial. However, on the morning of the sixth day of the trial, both parties submitted to me that even if the jury were only to answer questions relating to liability, it would still be necessary for them to hear evidence in respect of damages, as it was integral to the jury determining the causation component of the proposed negligence questions.

5. I accepted the parties’ submissions that the circumstances of this case were such that the evidence could not be neatly separated and I therefore permitted evidence to be called by both parties, without seeking to limit the trial to liability evidence only, with an exclusion of the medical evidence. At this time, I indicated to the parties that although I was convinced not to limit the evidence to be called and tendered before the jury, I reserved my decision in respect of the questions which the jury should be required to answer.
6. On Days 8 and 9 of the trial, I heard from both parties in respect of the proposed jury questions and the proposed question trail.
7. The parties agreed that the following questions were appropriate for answering by the jury:

1.1. Was there any negligence on the part of the defendant in respect of the fall which was a cause of Ms Ross’ injury, loss and damage? 1.2. If the answer to question 1.1 is yes, in what sum do you assess: Ms Ross’ pain and suffering damages? Ms Ross’ past loss of earnings; and future loss of earning capacity? 1.3. If the answer to question 1.1. is yes, was there any contributory negligence by Ms Ross which was a cause of her injury, loss and damage? 1.4. If yes to Question 1.3, to what extent (expressed as a percentage) is it just and equitable that Ms Ross’ damages be reduced, having regard to her own share in the responsibility for his injury, loss and damage? Ms Ross’ share of responsibility ________% Defendant’s share of responsibility ________% Total 100%

2.1. Was there any negligence on the part of the defendant in respect of the return to work which was a cause of Ms Ross’ injury, loss and damage? 2.2. If the answer to question 2.1 is yes, in what sum do you assess: Ms Ross’ pain and suffering damages? Ms Ross’ past loss of earnings; and future loss of earning capacity?

8. There are five possible damages scenarios which may arise from the jury’s answers to the questions relevant to liability. In my proposed question trail, I referred to these as scenarios A to E:
   • A: Ms Ross succeeds in establishing negligence in respect of both causes of action and there is no contributory negligence in respect of the first cause of action. If this occurs, Ms Ross’ damages could be assessed and awarded globally.
   • B: Ms Ross succeeds in establishing negligence in respect of both causes of action, but there is a finding of contributory negligence in respect of the first cause of action. If this occurs, the damages arising from each cause of action would need to be separately assessed, as the contributory negligence apportioning would only apply to the damages awarded in respect of the first cause of action.
   • C: Ms Ross succeeds in establishing negligence in respect of the second cause of action but not in respect of the first cause of action. If this occurs, only damages caused by this negligence can be awarded.
   • D: Ms Ross succeeds in establishing negligence in respect of first cause of action but not in respect of the second cause of action. If this occurs, only damages caused by this negligence can be awarded.
   • E: Ms Ross fails in respect of both causes of action and no damages are awarded.
9. In respect of the proposed question trail which I contemplated providing to the jury to help them work through each of these five scenarios, the parties did not agree on its wording. Without resolving the wording of the different scenarios arising under the proposed question trails, I again expressed my concern in relation to the complexity of the charge in relation to damages under each of these different scenarios.
10. Mr McCredie then made submissions in relation to how I might charge the jury if it answered yes to the first cause of action, but not the second. Mr McCredie submitted that if that occurred, the jury were entitled to take into account damages for psychological injury arising from the return to work circumstances, including any non-tortious conflict which the jury found existed and which was a cause of injury to Ms Ross as a consequence of the fall. In support of Ms Ross’ ability to claim this, Mr McCredie referred me to Mahony v J Kruschich (Demolitions) Pty Limited,^[1] Victorian WorkCover Authority (Vic) v Hartley^[2] and Ironmonger v Gunnedah Shire Council.^[3] In each of these cases, the plaintiff sought to include in a claim for damages against the original tortfeasor, injury suffered in subsequent medical treatment. In each case, the court held that there was no break in the chain of causation, such that the damages from the subsequent medical treatment was able to from part of the damages in the original claim. I note that such cases all relate to an additional and new tortfeasor. They do not relate to a claim where the plaintiff claimed a further negligent act by the original defendant.
11. Mr Kumar submitted that Ms Ross would be excluded from relying on any psychological injury arising from non-tortious conflict in her return to work, as to do so, would be to go behind the ruling I gave on the first day of this trial, which was that if Ms Ross were to abandon her claim in respect of bullying and harassment in her return to work, any psychological injury arising from her return to work would be limited to what is ordinarily considered a foreseeable injury arising from the circumstances of a worker’s return to work, and no evidence would be permitted in respect of her allegations of bullying and harassment.
12. The ruling I gave at that time, was in the context of this claim being issued with two stand-alone causes of action and proceeding to the first day of trial in that form. In my ruling, I effectively said that I would not permit the Ms Ross to bring her bullying claim through the back door. Having so ruled, Ms Ross elected to continue with both causes of action.
13. In addition, Mr Kumar made submissions in respect of the way damages can be calculated when there is a subsequent supervening event. I was referred to a decision of Karam v Palmone Shoes Pty Ltd,^[4] which discussed numerous authorities to guide me in the principles applicable to this task, including Malec v J C Hutton Pty Ltd.^[5]
14. Nothing said by Mr McCredie or Mr Kumar in respect of these matters, alleviated my concerns as to the complexity of the charge in respect of damages.
15. The principles relevant to a judge considering whether to discharge a jury were outlined by his Honour Justice J Forrest, in Birti & Anor v SPI Electricity and Anor.^[6] I summarise these as follows:

(a) Subject to compliance with the Rules of Court, a party is entitled, as of right, to seek trial by jury provided the claim is founded in contract or in tort. This right was enlivened by the defendant filing a jury notice on 7 February 2020.

(b) Where a party has given proper notice that a trial by jury is required, that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury.

(c) As a general rule, juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(d) A party may make application to the court to dispense with a jury. Further, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.

(e) A court will not lightly make an order to dispense with a jury, unless there is some special reason to do so or if there is good cause to do so.

(f) The considerations which may influence a court to dispense with a jury are unfettered.

16. Justice Forrest then went on to consider numerous factors which may be relevant to the court’s exercise of this power. I consider the factor of most relevance to this case, is the complexity of the jury’s task in the assessment of damages.
17. Subject to the way in which the jury answer the questions in respect of negligence for the first and second cause of actions, as well as the allegation of contributory negligence in respect of the first, this will determine what damages must be assessed.
18. Ms Ross claims damages for pain and suffering, and past and future loss of earnings. The particulars of injury in respect of the first cause of action, include the injury to the Ms Ross’ left ankle, as well as psychiatric injuries of Post-Traumatic Stress Disorder and Generalised Anxiety. The same psychiatric injuries are claimed in respect of the second cause of action. On the evidence most favourable to Ms Ross, those injuries have contributed to her loss of earnings, both past and future. Concurrent contributors of work incapacity is a very complicated issue, involving complex legal principles.
19. Having ventilated my concerns as to the complexity of the task in charging the jury based upon the pleadings in this case, and the evidence that has been adduced to date, I have ultimately concluded that a charge on damages would be exceptionally complex. It would include, amongst other things, a need to charge on foreseeability, remoteness of damages, novus actus interveniens, vicissitudes, and principles of assessing damages in accordance with the principles outlined in Malec v Hutton.^[7] Some of these complex legal principles would only be relevant if certain answers on liability were given, but nonetheless, the charge to the jury would need to cover all of the possible damages scenarios.
20. Even if properly charged on the law regarding damages and the relevant legal principles, I am satisfied the task required of a jury in respect of assessing Ms Ross’ damages is too great.
21. In anticipation of this ruling, I asked each party what it proposed I should do with the jury, if I decided to take away the damages questions from the jury. Counsel for the plaintiff contended that if I were to do this, I should also take away questions of liability – that is, I should discharge the jury and the case should proceed as a cause. However, the defendant contended that if I was minded to take away questions of damages from the jury, I should keep the jury and allow it to answer questions as to liability.
22. I am mindful that the jury have now attended Court for ten days, most of that time during strict COVID-19 circuit breaker lockdown restrictions. They have demonstrated an ability to sit and concentrate on the evidence. At this stage of the trial, I am loath to discharge the jury if it can be avoided. I am satisfied I can charge the jury in respect of liability and they should be regarded as capable of dealing with the issues of fact and law relevant to answering the questions concerning liability.
23. Therefore, in view of the above, I will have the jury continue to hear the evidence on this case, but will limit the questions they answer to those in the form of Questions 1.1, 1.3, 1.4 and 2.1 as outlined above. I will inform them that in the event that they answer Questions 1.1 or 2.1 as yes, then I will determine Ms Ross’ damages.

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^[1] [1985] HCA 37; (1985) 156 CLR 522

^[2] (2010) 27 VR 116

^[3] [2021] NSWPIC 48

^[4] [2010] VSC 3

^[5] (1990) 169 CLR 638 (“Malec v Hutton”)

^[6] [2011] VSC 566

^[7] Supra