Australia: The Jury is Out - Questioning the role of the jury in civil litigation

Insurance Update (Australia)
Last Updated: 15 April 2013
Article by Kieran O達rien

Back in 2011, a jury in a Supreme Court of Victoria asbestos proceeding awarded a plaintiff suffering from mesothelioma the sum of AU$730,000 for pain and suffering damages. This verdict created significant shockwaves around Australia, given that most state courts still assess pain and suffering damages in similar cases at under AU$300,000 (and significantly under AU$300,000 in some states).

This verdict was appealed, and on 22 December 2011 in Amaca Pty Ltd v King [2011] VSCA 447 (king), the Court of Appeal of the Supreme Court of Victoria upheld the damages verdict. The Court of Appeal was not persuaded, despite acknowledging the significant gap between this damages award and pain and suffering damages awards in other states, that the sum of AU$730,000 for pain and suffering was beyond what a reasonable jury properly instructed and with all due attention to the evidence could award.

The King verdict again raises the question as to whether juries are the most appropriate mode of trial in a modern society looking both for consistency from its courts and access to cost-effective litigation. This is a question no less pertinent now than when posed following the High Court decision of Swain v Waverley Municipal Council [2005] HCA 4, also known as the Bondi bodysurfing case.

In some states and territories, trial by jury has been abolished, whilst in other states and territories the right to trial by jury is heavily restricted. On the other hand, in Victoria an injured plaintiff has an unfettered right to trial by jury, unless there are compelling grounds to order otherwise. Traditionally, the complexity of the litigation needs to be such that a judge is satisfied that either a jury would not cope with the forensic issues that lie at the heart of the litigation, or that the mechanics of the trial would become too unwieldy. In one notable instance (the 2004 Supreme Court of Victoria case of Ballerini v Berrigan Shire Council & Anor), the trial judge ordered trial by judge alone on application by the plaintiff, despite the plaintiff having previously requested trial by judge and jury, and the defendants seeking to retain the jury.

The King verdict prompts the following question: why should damages awards for the same injury or loss be potentially greater in Victoria than elsewhere simply because of access to juries? In 2001, the High Court effectively abolished forum shopping in John Pfeiffer Pty Ltd v Rogerson, confirming that plaintiffs' claims are governed by the law of the state in which the injury or loss occurred. A resident of Albury will always have his/her claim assessed in accordance with New South Wales law, but what Albury resident would choose to issue proceedings in Sydney that might be heard by a parsimonious judge, when they can potentially issue in Melbourne and take a chance on a generous jury hearing the case?

To that end, there are obvious sympathy factors that steer plaintiffs towards jury trials. However, in an era of heavily policed case management by the courts with strict enforcement of litigation timetables and mandatory mediation, and given the excessive cost of litigating any dispute at all (much less a dispute that proceeds to verdict), one has to ask whether the jury has a valuable or viable role to play going forward.

In relation to legal costs, it is inevitable that a jury trial will take substantially longer than a trial by judge alone, thereby increasing litigation costs. At the outset, time is lost in empanelling a jury. There are generally more delays during a jury trial to allow the jury to have breaks. Evidence can be slower with a jury, and legal concepts and even courtroom protocol may need to be explained to them. Any objections taken during the running of the trial generally require the removal of the jury, with subsequent rulings given in the jury's absence. Often, a judge who is required to rule on a point of law mid-trial may send a jury home for the day while the judge considers his or her ruling, thereby resulting in the loss of valuable court time in which further evidence can be heard. At the conclusion of a trial, a judge's "charge" (or summary of the evidence) to a jury can take several days.

After all of this, the litigants do not even receive written reasons explaining the verdict. Instead, they have to go away and work out why the jury may have found as they did, and then (if still dissatisfied) consider whether the verdict was reasonable on the evidence and worth appealing.

In both simple and complex matters, this can be particularly frustrating for the unsuccessful litigant. The prospects of successfully appealing a jury verdict are far lower (to the point of almost impossible) and there are countless appellate decisions confirming that fact. With courts seeking to attract the best lawyers to sit as judges, why are we still insisting that the years of legal training and expertise that these judges hold are wasted by having them merely steer or assist a jury to decide the dispute? Proponents of juries would no doubt argue that juries (and not judges) are more attuned to society's thinking and will reflect the community's views when delivering verdicts. Even so, why let slip the opportunity of having expert judges publish legally informed reasons for their decision?

Recent verdicts like the King verdict only seek to provide further scope for questioning the role of the jury in modern civil litigation. Perhaps it is time for all states and territories to give serious thought to placing the responsibility for the dispensing of justice into the hands of their highly qualified and highly experienced judges and judicial officers.

ゥ DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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