WATER RESOURCES COMMISSION v GRAHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 13 May 1992, 22 May 1992 [1992] NSWCA 265 JURY — VERDICTS — WHETHER VITIATED BY CONDUCT OF SHERIFF'S OFFICER The respondent was injured in the course of his employment with the appellant. The trial was before McInerney J and a jury of four. Liability was admitted. After the jury retired to consider its verdict it had some contact with a sheriff's officer. This included the sheriff's officer, upon request, lending the jury a calculator and demonstrating how to work out percentages on it. 1. The appellant sought to have the jury's verdict set aside on the basis that the conduct of the sheriff's officer constituted an irregularity such as to cause a miscarriage of justice. 2. In the alternative the appellant sought to have the rate of interest allowed on the economic loss component altered from 7% to 2%, in line with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. Held: 1. The conduct of the sheriff's officer was an irregularity but was not an irregularity such as would, of itself, be seen as likely to give rise to a suspicion that there had been a miscarriage of justice. 2. As the parties had agreed on the interest rate on the basis of the law as it stood at that time, it was not open to them to challenge it on appeal. MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Piening v Wanless (1968) 117 CLR 498 Eggins v Brooms Head Bowling and Recreational Club Ltd (1984) 5 NSWLRMorawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374 R v Chaouk (1986) VR 707 David Syme and Co v Swinburne (1909) 10 CLR 43 R v Ketteridge (1915) 1 KB 467 R v Hodgkinson (1954) VLR 140 Emmett v Masland (1988) 33 A Crim R 340 Davies (1991) 53 A Crim R 122 Clarke JA I agree with the orders and reasons of Sheller JA. Handley JA I agree. Sheller JA On 6 May 1982 at a time when he was employed by the appellant Commission, the respondent, in the course of carrying out his duties, slipped on some grease, fell to the ground and suffered injury. By proceedings commenced in 1987, he sued the appellant in negligence to recover damages alleged to have been suffered as a result of this injury. The proceedings came on for hearing at Narrabri before McInerney J and a jury of four on 10 July 1989. Liability was admitted. The appellant did not call evidence. The only evidence called was by the respondent and the only medical evidence called by him was that of a specialist doctor. He testified that the respondent's condition which caused him to cease work some time after the 2 UNREPORTED JUDGMENTS accident was directly the result of the injury that occurred in May 1982. The issue to be determined by the jury was whether or not what was apparently the admitted condition of the respondent stemmed initially from the accident in May 1982 or whether it was caused by a number of separate incidents some of which had occurred prior to May 1982 and some after that time. In this setting, counsel for the appellant submitted that the respondent was only entitled to a verdict which would have been relatively small. McInerney J summed up to the jury on 11 July 1989. In the course of his summing up the learned judge made reference to the 3% actuarial tables in the context of working out the present money value of future economic loss. He gave the jury specific examples of the present value of a loss of $1 per week on the basis that the respondent kept working to the age of 65 years and on the basis that he kept working to the age of 60 years and explained how this figure could be used in respect of greater losses per week. In the context of making an allowance for the contingencies of life his Honour referred to this amount being reduced by some percentage - "10%, 15%, 20%, it is purely a matter for you. More if you want to, but it is a matter that you must take into account". The jury retired on 11 July 1989 at 2.33 pm to consider their verdict. At 4.05 pm they returned with a verdict for the plaintiff in the sum of $220,000. We are told that the verdict was analysed on the basis that the amount allowed for general damages was $70,000 and that counsel agreed that interest should be allowed on one half of the general damages at 7%, that is to say in an amount of $17,500. After taking account of this, interest on past economic loss and the deduction of workers' compensation payments, his Honour ordered the defendant to pay to the plaintiff $238,864.65. A stay of execution of judgment was granted on terms, including a term that the defendant pay $100,000 to the plaintiff. Later on the same day, both counsel attended upon his Honour in Chambers and were shown a copy of a statement typed by one of the court reporters, Dawn Lynette Walsh. The statement was as follows: "GRAHAM v WATER RESOURCES COMMISSION - NARRABRI, 11 /7/89 On leaving the court and returning to our work area I passed the jury room where the jury were deliberating. I observed the door to be open and saw the sheriff (sic) engaged in conversation with the jury. I overheard words to the following effect: "SHERIFF: What you have to do is get a percentage. That's the way you work it out. Say, for example, you had a figure of $4000.." "When we do our processes..' Later in court after the verdict had been given the sheriff remarked to my colleague: 'They were thinking of giving him $400,000'." Copies of the statement were subsequently made available to both counsel to be used as they saw fit. On 12 July 1989 counsel for the appellant moved to have judgment set aside and in the alternative, to have the terms of the stay varied by deleting the condition requiring payment to be made to the plaintiff. These applications were unsuccessful. In his judgment on the application, McInerney J having referred to the issue to be determined by the jury said: "The jury in returning a verdict, obviously, were of the view that the plaintiff's injuries did stem from that initial injury. Unfortunately, some problem arose which is set out in an envelope which is sealed in the file relating to a certain circumstance that took place and I do not want to say any more about that. It is now submitted that the jury verdict has miscarried and that the judgment will URJ WATER RESOURCES COMMISSION v GRAHAM (Sheller JA) 3 inevitably be set aside by the Court of Appeal. No doubt that will be a matter for the Court of Appeal but at this stage, on the face of it, I do not see that that is so. It seems to me that the jury's verdict was probably unaffected by what took place having regard to the amount of the jury's verdict which they were entitled to conclude on the evidence. They certainly did not accept the plaintiffs case in toto. This is not an easy matter. I have to decide this matter at Narrabri without the assistance of a leisurely look at the authorities. I have no authorities on the matter one way or the other. I at this stage do not think that I should alter the stay conditions and I refuse to do so." The appellant appeals on the following grounds which were amended by leave: "1. That the Sheriff's Officer improperly communicated with the jury. 2. That the Sheriff's Officer participated in the jury's deliberation. 3. That the Sheriff's Officer improperly consulted with the jury. 4. That the Sheriff's Officer improperly advised the jury in the calculation of the quantum of the plaintiffs claim. 5. That the conduct of the Sheriff's Officer was an irregularity of such a nature as to cause a miscarriage of justice. 6. That the rate of interest to be applied to the non-economic component of damages be allowed at the rate of 2% per annum on the whole amount of the non-economic damages over the whole of the period between the date of injury and the date of trial in lieu of the rate of 7% in accordance with the decision of the High Court in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657." The appellant sought orders, inter alia, that the verdict and judgment be set aside and that there be a new trial limited to the issue of damages or alternatively, if the appeal was otherwise dismissed, that the amount of the judgment be reduced to $226,264 to take account of the lower rate of interest on the non-economic component of damages. It is convenient to deal with the sixth ground of appeal first. It is conceded that no point was taken at the trial to suggest that the rate of 7% was inappropriate. Indeed the rate was applied and the amount of interest agreed to between counsel. Accordingly, unless we order a new trial, on the basis of the other grounds of appeal, it is not open to the appellant to challenge the rate of interest agreed to; see Piening v Wanless (1968) 117 CLR 498; Eggins v Brooms Head Bowling and Recreational Club Ltd (1984) 5 NSWLR 521; Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374. In Eggins, McHugh JA, as he then was, said at 524: "The issues at a trial are decided on the basis of the 'law' which applies to them at the date of the trial. If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it. If he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he has lodged an appeal and that, before the hearing of the appeal, a superior court has decided that the law is different from what it was conceived to be at the date of the trial. If the unsuccessful party succeeds in obtaining a new trial for a reason unconnected with any change in the law, then he may apply to amend his pleadings, if necessary, so that the new trial can be governed by the changed state of the law." At the commencement of the hearing of the appeal the appellant was given leave to rely on evidence contained in affidavits sworn by a solicitor and two court reporters and the respondent was given leave to rely on evidence contained in affidavits by two sheriff's officers. No objection was taken to any parts of the 4 UNREPORTED JUDGMENTS affidavits nor were any of the deponents cross examined. On this evidence the appellant urged upon us that the sheriff's officer improperly communicated with the jury, participated in its deliberation, improperly advised the jury in the calculation of the quantum of the plaintiff's claim and that his conduct was an irregularity such as to cause a miscarriage of justice. Ihave already set out the typed statement provided by the court reporter to the judge. In her affidavit, this court reporter said that shortly after the jury had retired to consider its verdict she had occasion to walk from the court room to the court reporters' room. In doing so she passed the jury room. The door to the room was slightly ajar. As she passed the doorway she saw one of the two sheriff's officers inside the room having a discussion with the members of the jury. The first two paragraphs of the statement constitute a true record of what she saw and heard in the jury room. In an affidavit sworn by one of the sheriff's officers, Donald James Hayward, he said that the jury retired at about 2.30 pm and he escorted them to the jury room. Whilst doing so the foreperson requested some milk. He went to his office and obtained the milk and returned to the jury room. When he returned with the milk the foreperson requested a calculator. He had a small calculator in his pocket and took it out. As he was in the process of handing the calculator to the foreperson she said "I don't know how to work out percentages". He then stood alongside the foreperson with the calculator in his hand and said "take a figure for instance $6,000 and you want to find 15% of $6,000." He then proceeded to demonstrate that calculation and said "there it is". He immediately left the jury room. He estimated that the incident occurred no more than two minutes after the jury retired and that he was only in the jury room for at the most three minutes. Both Mr Hayward and another sheriff's officer, James Joseph Mealing, dealt with a point of time when they were locking up the court room at about 4.30 pm and denied that Mr Hayward said or indicated an amount of $400,000 as was alleged in the statement of the court reporter. Having had an opportunity to read Mr Hayward's affidavit the court reporter, in hers, said that he was present in the jury room for at least five minutes. He was present in the jury room when she walked passed the first time and he was still present when she walked passed a short time later. She estimated that at least five minutes elapsed between the two occasions when she saw him in the jury room. She recalled seeing the calculator resting on the top of a desk in the jury room whilst Mr Hayward was present in the room. She did not see him handling or using the calculator. Another court reporter, Judith Florence Ward, deposed in an affidavit to the conversation in the court room and the statement allegedly made by one of the sheriff's officers "they were thinking of giving him $400,000". It is unnecessary for me to say anything about the later conversation in the court room as this was not relied upon by the appellant's counsel in his submissions to us. However, as the submission developed, discrepancies were pointed out between what was said by the court reporters and what was said by the sheriff's officers. This led to questions from members of the Court as to why the deponents had not been cross examined. The answer was given in terms of the judgment of Kaye J sitting as a member of the Full Court of the Supreme Court of Victoria in R v Chaouk (1986) VR 707 at 713. His Honour was there referring to answers made by jurors to a trial judge investigating whether there had been an irregularity in a communication made by the foreman of the jury. In this context his Honour said: URJ WATER RESOURCES COMMISSION v GRAHAM (Sheller JA) 5 "However, in my opinion, the answers made by the jurors to the learned trial judge's questions, in the circumstances then existing, were not such as to dispel any reasonable concern that the infringement had operated to the prejudice of the applicant. Experience shows that even an otherwise reliable witness, when asked whether k matter relating to the trial was discussed by him with another person on a previous occasion or out of court, might deny having done so. The denial in those circumstances is likely to be prompted by an assumed innuendo in the question that there is something wrong or improper in having been involved in such a conversation or discussion." With due respect to the argument advanced to us this proposition has nothing to do with the need for cross examination in the present case. The two court reporters and the two sheriff's officers have given evidence on oath in affidavits. There are inconsistencies which may well be explained in cross examination by some mistake or failure of recollection. Cross examination may show that some part of the evidence is not true. But what, it seems to me, is impossible is that we should proceed in the absence of cross examination to reject any part of the evidence or to accept some part of the evidence in preference to some other part. Quite apart from anything else this would be unfair to the witnesses and no good reason is shown for our being required to take this course. The onus is on the appellant to satisfy us that there has been a miscarriage of justice. In my opinion, in the absence of cross examination, we cannot reject the affidavit evidence of the sheriff's officer. We should not reject but simply not take account of any inconsistent evidence from the court reporters. A number of cases have been referred to as showing how the question here raised should be approached. For my part, in the circumstances of this case, I find the following passage from the judgment of O'Connor J in David Syme and Co v Swinburne (1909) 10 CLR 43 at 62-63 compelling. "The sole object of the court's interference with the verdict of a jury on account of the misconduct of a juryman is to secure the pure administration of justice. Whether the facts relied on to establish misconduct are sufficient to justify the court in interfering is for the court in its discretion, after consideration of all the circumstances, to determine. Sometimes, as in the case of Cooksey v Haynes 27 LJ Ex 371 where the jury had surreptitiously procured victuals and beer during their retirement and had afterwards issued from the jury room with a very large verdict for the plaintiff, the court will grant a new trial on the ground of misconduct of the jury although neither of the parties were to blame. But in most cases the connection of either of the parties with the misconduct complained of is an important circumstance for consideration. Whatever view may be taken of the incident under consideration, it is clear that the plaintiff was entirely free from blame. The defendants, therefore, are called upon to establish at least reasonable ground for suspicion that the due course of justice has been interfered with before they can call upon the court in the exercise of its discretion to set aside a verdict which the plaintiff has obtained without default on his part, and to put him to the expense and risk of a new trial." In my opinion, in a civil case, the onus is on the appellant to establish these matters; compare the judgment of Griffiths CJ at 58. Counsel has referred us to a number of criminal cases in this country and overseas in which varying different incidents have led to convictions being set aside; see R v Ketteridge (1915) 1 KB 467; R v Hodgkinson (1954) VLR 140; Chaouk; Emmett and 6 UNREPORTED JUDGMENTS Masland (1988) 33 A Crim R 340; Davies (1991) 53 A Crim R 122. However, none is remotely analogous to the present situation and I do not find comparison helpful. I do not think that anyone could say, and indeed the appellant did not press, that a request made by a jury to a sheriff's officer to supply a calculator at the time when the jury has come to consider its verdict would be an irregularity such as would, of itself, be seen as likely to give rise to a suspicion that there had been a miscarriage of justice. The question is whether, the foreperson having indicated that she did not know how to work out percentages, it was appropriate that the sheriff's officer should give a demonstration by reference to particular figures without either the judge or counsel being aware that this was going on. I can see the force of saying that this is an irregularity and should not have occurred. It is, I think, important that if jurors have difficulties in relation to the calculation of damages whether they be of a mechanical sort, such as the present, or difficulties in principle, that these matters be referred to the judge to be dealt with in open court. Sheriffs officers who repeatedly come into contact with jurors and need to speak to them should be firmly discouraged from in any manner discussing with them questions relating to the trial such as the calculation of damages. As Lee J remarked in Emmett and Masland at 349 a sheriff's officer wearing a uniform and being in charge of a jury may be seen by some jurors as a person to whom, as a matter of commonsense, they would turn for assistance in a difficult case. His direct association with the administration of justice could lead a juror to regard him as a source from which proper advice might be received. "It follows that a sheriff's officer must refrain at all times from all conduct which in any way bears upon the evidence in the case or the question of what the verdict should be". However, this does not dispose of the matter in the appellant's favour. There remains the question whether the appellant has established reasonable ground for suspicion that the due course of justice has been interfered with. It is conceded that the verdict was in every other way a proper one. Bearing in mind the issues, it is not suggested that it was excessive. Indeed, the appellant abandoned its original ground of appeal that the quantum of the verdict could not be supported by the evidence. Before coming to their verdict the jury was out for slightly over an hour and a half. On the evidence on which, as have indicated, I think we are bound to proceed, there is nothing to suggest that the jury relied upon the sheriff's officer in any way other than to assist in the use of a calculator to calculate percentages. There is nothing in the amount of the verdict to suggest that any miscalculation took place. I accept that if an irregularity is shown of sufficient gravity it is not necessary that the Court be satisfied that prejudice resulted. But to adapt the language of Kaye J in Chaouk's case at 712, I think the present falls within the category of a slight and harmless deviation from the requirements of appropriate behaviour and as such did not vitiate a fair trial. In my opinion the appeal should be dismissed with costs. Counsel for the Appellant: CE O°; CONNOR QC/TJ WILLIS, Instructed by: P W TURK and ASSOCIATES Counsel for Respondent: TJ CHRISTIE QC/ JH LICHTENBERGER, Instructed by: HJ PALMER and Co