Video transcript – Civil case scenario part three

Screen title: Civil trial, Episode 3

Plaintiff's barrister: There was no training about these are the sorts of things you can do by yourself, these are the sorts of things you can't do by yourself. There was no training on how to de-escalate a situation without physical contact.

Screen title: Min Guo, Barrister

Min Guo: In your closing, like in all forms of communication, you need to get your point across to the audience and you need to understand who your audience is. So, in this case, whether it's judge alone or a jury, you need to be able to communicate to them effectively, succinctly and efficiently what exactly has happened and what the reasons are for why you should win.

Screen title: Judge O'Neill, Head of Common Law Division

His Honour Judge O'Neill: And then, importantly, at the very end, the judge is responsible for delivering his or her charge to the jury. That's sort of a final instruction to the jury, telling them about the principles of law that they need to know and then reminding them of the facts so that they put the whole package together and come up with a verdict.

Judge: As I think was explained to you pretty clearly by both counsel, there are two sorts of damages that you can award. One is referred to as pecuniary loss damages, which is loss of wages from past and into the future. The other is referred to as pain and suffering damages. The pain and suffering damages will also compensate for loss of enjoyment of life. Now these are considered together, as part of pain and suffering, from past, present, into the future and are compensated together in a single sum.

His Honour Judge O'Neill: Damages is one of the most difficult areas for a jury and a judge to deal with.

Judge: Now, such a thing is not capable of a mathematical equation and you may have hoped that you would be given a little chart that showed a broken leg, dimes, dollars, broken arm equals another figure but no, there is no particular scale to which you can refer. The assessment of pain and suffering damages will be left to your good judgement, as members of the community. You will bring your common sense and your experience of life as to what is an appropriate sum. You should assess such damages without being unduly modest or miserly, nor on the other hand should you be unduly extravagant or lavish.

His Honour Judge O'Neill: It's left to the good common sense of the jury to make a decision about what is fair and reasonable to both sides. And the touchstone is to try to compensate someone as best money can and put them in the position that they were in, had the injury not occurred. That's a pretty hard thing to do, but generally the lawyers involved in the case will give a jury a range.

Plaintiff's barrister: We suggest that a reasonable amount of compensation for pain and suffering is $200,000, given the serious injury the plaintiff has suffered.

His Honour Judge O'Neill: The defendant's side might say $100,000. So generally, the jury will know that that is the range within which to operate. Aside from pain and suffering damages, there's also loss of wages. A person who can't work because they've suffered an injury is entitled to be compensated for the wages they've lost, both in the past, from the time of the injury to the time of the court case and into the future, if they can't work into the future because of their injuries. That is an area of compensation which can be calculated more readily because you can work out what wages someone would have earned, both in the past and into the future. And then in addition, sometimes a compensation might be, for example, for out-of-pocket medical expenses, doctors and hospital fees, and physiotherapist fees and the like.

Female juror one: Okay, the guard, you know the guard is actually liable, partially liable, let's say. Because if she falls-

Min Guo: See, in this case where we have a jury, a decision won't come right at the end of each party presenting their case. The jury will need to take some time to deliberate.

Male juror: I tend to disagree. It wasn't life-threatening, but she's gonna be about 5% disabled-

Min Guo: And it's hard to guess in advance how long the jury might take to deliberate. You might be waiting only for a couple of hours, you might be waiting for a few days.

Female juror two: So she's followed him out to make sure he leaves without realising that she wasn't meant to.

Woman: Foreperson, and members of the jury, have you agreed upon your verdict? Foreperson: Yes.

Woman: How do you find on question one? Was there negligence on the part of the defendant that was a cause of injury, loss, or damage to the plaintiff?

Foreperson: Yes.

Woman: In what sum do you assess a) pain and suffering-

Min Guo: And then even after the jury does make its decision, there might be some aspects of a particular trial where the judge might need to go off and make his own, or her own, decisions as well. Then after all that, there is the possibility that one or the other party might appeal and then there's time limits that that generally needs to be done within. All of that can add some uncertainty to what might be an apparent win or an apparent loss for one or the other party.

Judge: Members of the jury, by delivering your verdict, you now bring to an end your role in this legal proceeding. It's obvious to me that you have approached your task as jurors responsibly and have abided by the directions as to the law I have given you, that much is clear to me, observing you during the course of the trial and from questions during your deliberations. On behalf of the County Court and the community of Victoria, as a whole, I would like to thank you for the manner in which you have performed your duties. You are now discharged.

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Page last updated: 21 September 2020