While usually associated with criminal proceedings, trial by jury was also once a commonplace feature of civil cases, but recent decades have seen the gradual removal of the right to trial by jury in civil proceedings, particularly in the area of injury compensation.
In Queensland there remained some uncertainty about whether there remained a right to trial by jury in a claim for compensation for asbestos disease, noting that civil jury trials remained available elsewhere in Australia, notably Victoria.
A recent decision in the Supreme Court of Queensland in the matter of Larry Andrews Silver -v- Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) [2020] QSC 266 has now affirmed that jury trials are available for claims for asbestos disease compensation in Queensland.
It is important to note this only applies to claims involving asbestos exposure outside of employment, such as where a self employed carpenter working with asbestos cement products. Where the asbestos exposure has occurred in employment, the Queensland Workers’ Compensation & Rehabilitation Act 2003 completely removes the right to a jury trial.
In Silver, Amaca Pty Limited (formerly known as James Hardie & Coy Pty Limited) argued that a jury trial was not appropriate as it would require a prolonged examination of records.
In rejecting that argument, Justice Martin found that even though thousands of pages of documents might be tendered, it would only be select parts of the documents that would be relied upon. He also noted that the second set of documents, which consisted of expert medical reports where the author of the reports would be cross-examined and there would be a need for careful consideration of those reports, that this was something an ordinary juror could deal with. Finally, the lawyers for James Hardie were unable to point the Judge to any document that might require prolonged examination with respect to documents that demonstrated that James Hardie knew that their asbestos containing building products were capable of causing severe death and injury and which consisted of a series of documents commencing in 1930.
His Honour Martin J therefore confirmed that he was satisfied that James Hardie had failed to establish that there would be “prolonged examination” which would allow an Order to be made that the Trial proceed without a jury.
Queensland has never seen a jury trial outcome for a victim of a dust related lung condition. Jury trials commonly take place in Victoria for dust related conditions and there have been mixed outcomes in that jurisdiction.
It will be interesting to see how a Queensland based jury will determine liability and level of damages in a dust disease related condition.
Vbr Lawyers currently have numerous dust disease related claims that are seeking jury trials in Queensland.
