In his closing address to a jury in a personal injury claim, the defendant’s counsel, Paul Scanlon QC said:
“Mr Foreman, members of the jury, Mr Reid [counsel for the third party], he’s a very interesting fellow. He says to this that there needs to be a sign on this ladder saying don’t extend it …
I was just listening to him and I was thinking something that was told to me recently, this court – the Supreme Court of Victoria – travels to regional centres, and it goes to Warrnambool …
We were in Warrnambool with this very Supreme Court earlier this year, and we were – there was about six barristers who had gone down for the Warrnambool cases, and we were dining at – staying in Port Fairy and we were having dinner probably at the best pub in Port Fairy, and there’s a table of eight barristers sitting around chatting.
I bet you’re wishing – you must be thinking gee I’d be disappointed missing out on that night – and there was a couple seated at a table next to us who were obviously listening to our chat, and they came over and introduced themselves and he was an attorney from LA.
He was a terrific bloke and he said, ‘Hey you guys, you’re all attorneys’. He said, ‘What are you doing down here?’ We said, ‘Well we’ve got this case about a fellow who hurt himself at the Portland Aluminium Smelter’.
He said, ‘Well what’s the guy going to get?’ I said, ‘I don’t know, it’s a matter for the jury’. ‘What happened?’ We told him what happened. He said, ‘It’s easy, he’s going to win that guy’.
He said these California juries, he said they’ve gone mad and he was telling us about a case about this fellow who had bought a Winnebago and he was driving down the Santa Barbara Highway, and he and his wife – after their retirement – ‘Beautiful, come on, here we go darl, off we go, down the highway’. Picture on cruise control, walks down the back of the bus, pours a cup of tea and next minute, over the garden rail, roll, roll, roll, completely smashed up.
He says they sue Winnebago and a Californian jury give them $5 million because there was insufficient instructions on what cruise control meant.
We said to him – now this is I swear to you true – we said, ‘That just cannot be right’. And he said, ‘Yes, no it’s true’.
He said, ‘What’s worse is that Sanyo are currently appealing a decision by a California jury where a lady had put her cat in the microwave and it came out frizzled and deceased and she sued Sanyo for nervous shock on the basis that there was insufficient signage on the microwave to stop her putting the cat in, and got 30 grand from a California jury’.
I said to this bloke, ‘It just can’t be fair dinkum’. He said, ‘It is absolutely fact’. Now I don’t know if it’s fact or not, because – I don’t know, but what he told me is fact.
It just made me think – I thought I was listening to my American mate when I listening to Mr Reid [counsel for the third party] about the sign, because in this case what Mr Rees [the plaintiff] says about signage is that I didn’t need a sign to tell me don’t overextend this ladder and that’s his evidence.
The standards don’t require it, Mr Rees doesn’t require it, but the opposition over here … he seems to think it does.”
Oh dear! From that passage it looked like Scanlon may have been sucked in by a couple of the most pervasive myths that have been floating around the internet for the last decade.
I refer, of course, to the Stella Awards named after Ms Stella Liebeck, who in 1992 supposedly won an award of $2.9 million from a jury after spilling a cup of hot coffee from McDonald’s on her legs.
Ever since, reports of cases where plaintiffs have obtained huge awards of damages for unbelievable instances of injury or loss are trotted out as evidence of a legal system that has gone troppo.
In the US, the principal exposer of “Stella” stories is the Overlawyered website.
From time to time in Oz the ABC’s Media Watch has been keeping an eye on the silliness.
On June 10, 2002 MW reported on a number of high profile media types, including the ABC’s Richard Glover, 2UE’s Steve Price and The Daily Telegraph’s editor David Penberthy who were revelling in “Stella” stories.
That was followed by a report on June 14, 2004 of Justice David Ipp of the NSW Court of Appeal and Queensland’s Chief Justice Paul de Jersey also being sucked in.
And on November 7, 2005, MW reported on the embarrassment suffered by Melissa Kent of The West Australian who was peddling the same sort of rubbish.
Getting back to Scanlon’s closing address, it’s fair to say that it didn’t go down all that well with the Victorian Court of Appeal.
Ashley, Redlich and Coghlan together said:
“The opinions of counsel for the respondent [defendant], or of the other unnamed lawyers, were of no relevance to the jury’s deliberations; still less their opinion that Californian juries had gone mad.
The appellant [plaintiff] contended that these anecdotes invited the jury to make a value judgment about the law of negligence concerning matters upon which the jury would receive no directions of law by the trial judge.
In this court, the respondent accepted that personalising the Californian anecdotes, by what purported to be a verbatim account of conversations in which counsel was involved, had been wrong. But it was not conceded that it had been wrong to tell the anecdotes themselves.
We reject that contention. The anecdotes were not told merely to illustrate by analogy that the respondent was not in breach of its duty of care.
The telling of the anecdotes and the personalised comments of counsel in response to them was to implicitly suggest that the jury would be irrational to find for the appellant.”
The trial judge, Justice Betty (Underbelly) King, also came in for a bit of a shellacking for not pulling Scanlon into line on the “Californian anecdotes”.
“In a number of respects, the ‘comments’ of the trial judge with respect to the American anecdotes were unsatisfactory. First, there should have been a direction, not comments. Second, the anecdotes travelled beyond the issue of signage. Third, it was not a question of Australian law applying. The anecdotes were an invitation to consider the appellant’s case in a particular way. Fourth, the personalisation of the anecdotes was wrong. Fifth, it was contradictory to say that the point about signs remained, but that the story had no particular relevance.”
Delicately, neither Scanlon nor King were named by the VSCA judges.
There were plenty of other problems with the way Scanlon conducted the trial.
- He cross-examined the third party, Barry Phillips, at whose property the accident with the over-extended ladder took place. Scanlon raised an allegation that Phillips had colluded with the injured appellant Gary Rees to give false evidence. There was no evidentiary foundation for this and it should not have been put. It had not been put to the plaintiff in cross-examination.
- He put objectionable questions to the plaintiff based on a without prejudice communication between solicitors.
- He disobeyed the judge’s rulings and was extremely discourteous to the judge.
- He offered personal opinion and comment in cross-examination, cut off witnesses, asked questions which assumed facts in issue, asked argumentative questions and misstated the import of answers.
Against this the CA considered:
- The jury verdict was unsurprising.
- The trial judge refused a belated application by Richard McGarvie, for the plaintiff, to vacate the jury verdict.
- McGarvie did not object or seek the jury’s discharge, and the misconduct might have been cured by objection being taken and “appropriately firm directions being given”.
- The appellant bore a heavy burden in seeking to establish that the trial miscarried.
In the final analysis the Court of Appeal felt that Scanlon had exceeded the bounds of permissible robust advocacy and “after considerable hesitation” was …
“persuaded that there is a real likelihood that counsel’s misconduct had a prejudicial effect upon the jury, such that a miscarriage of justice should be inferred. The appeal should be allowed.”
The jury’s verdict in favour of Scanlon’s client, the ladder manufacturer, was set aside.