Video transcript - Civil case scenario part two

Screen title: Civil trial, Episode 2

Mediator: The defendants propose a settlement of $80,000-

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

His Honour Judge O'Neill: Litigation and settlement bargain has reached the point where about 85% of the cases which are started in this court are resolved before they get to court.

Woman: But they're not willing to pay any compensation for future-

His Honour Judge O'Neill: So there's no worse feeling than, for a plaintiff for example, someone who's been injured in a serious incident, deciding to go to court when there's been a reasonable offer to settle it, and then losing the case. It can cause a complete catastrophe. Same applies for the defendant. They might believe that they have a very good case. The case ends up going to court and takes two or three weeks, and the legal costs when they lose the case are phenomenal. So, it's partially economics, partially efficiency, and partially common sense, but every case that comes before our court has been mediated at least once, and usually several times, and it's something that judges require, and it's something we raise with the parties in a case on a very regular basis.

Mediator: They think you have earning capacity, that you'll work in the future.

Security guard: No.

Plaintiff's barrister: It's law.

Security guard: Yeah.

Plaintiff's barrister: Okay, let them know, we'll see them in court.

Screen title: Lizzie O’Shea, Solicitor

Lizzie O'Shea: Limitations of actions, a time limit imposed upon plaintiffs within which they can bring their claim. The limitation periods are there so that defendants will have certainty, so that a case can't hang over them forever, but it's also about evidence, so if you wait a long time to bring your claim, it can be very difficult for the judge or the jury to work out exactly what happened. It can also be difficult for a defendant to bring any kind of evidence in their defence, so it's important that cases are heard as soon a possible, really, after the incidents that are in question happen, but you've also gotta give plaintiffs time to get their case together, to speak to a lawyer, to work out that they've got a case to bring before the judge or the jury. So in a civil claim, where the plaintiff has the burden of proof, the standard that they have to meet is the balance of probabilities, so that means a better than 50-50 chance that what they're saying is correct.

Screen title: Min Guo, Barrister

Min Guo: When we get to the trials, we want things to be efficient, and not taking up unnecessary time and not take up unnecessary costs. So that's why we have some of these, what we call in Victoria, pre-trial applications or interlocutory applications.

Fiona Spencer: And so what can happen is that disputes can arise in relation to one or more of these interlocutory steps.

Defendant’s solicitor: Is there anything else missing?

Screen title: Fiona Spencer, Barrister

Fiona Spencer: For example, a common dispute that arises is that one party says that the other party's discovery is not adequate. They say, in effect

Defendant’s barrister: Your honour, my learned friend here has not discovered all the documents she should. If you look here at page 35 of the jury book, you will see that we have not received a copy of the plaintiff's medical records from February 2016-March 2017.

Min Guo: So from our perspective as the plaintiff, the kinds of documents that we would need to see before we get to the trial are kinds of internal training manuals or internal processes that the security company had, and they go towards, ultimately, us being able to advise or client how good, really is our case. What are the kinds of things that we expect the security company to say when they present their defence, so that we're not taken by surprise and we know how to anticipate and plan and what we might argue in response. Most cases will have a combination of documents and audible evidence. Well, in this case, one of the most important witnesses to call is the plaintiff herself.

Plaintiff's barrister: Did you understand what your job was going to require you to do at the security firm?

Security guard: I'd be security at various venues, that served alcohol, you know, bars and the like. I'd be outside the door and be responsible for making sure-

Min Guo: She'll need to give her version of events. What happened, how she was trained, what kind of training she received, what kind of training she didn't receive, what happened on the night, exactly how the sequence of events unfolded, and how she got attacked, and what happened afterwards. She'll also need to keep evidence about the loss that's she's suffered, the time that she's had to take off work, the medical treatment that she's had to obtain because of the injuries that she got.

Security guard: It felt like an electric shock, is the best way to explain it. It felt like I'd been hit from the tip of my head to my toe.

Min Guo: When all of that is done, then it's time for the other side to ask questions of the witness, and that process is called cross-examination.

Fiona Spencer: And so in this case, you could imagine the defendant saying that by leaving the venue and following the patron into the street, and then by trying to subdue the patron, she failed to take reasonable care for her own safety, she should not have followed him into the street and or she should have waited for the police and not tried to subdue him, so they're all matters that you would think would be relied on by the defendant as a contributory negligence in this case.

Plaintiff's barrister: The defence alleged you contributed to your own negligence when you pursued the patron. Can you explain why you followed the patron out of the venue and down the street?

Security guard: Yes, he was attempting to pull a windscreen wiper off a car, and I then figured he was going to use it as a weapon, and I wanted to stop him from doing this.

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Page last updated: 16 September 2018