Jury trials in medical negligence

Lawsen v Jensen [2017] TASSC 34 is an interlocutory decision of the Supreme Court of Tasmania, considering an application to dispense with a jury on the grounds that the trial would involve prolonged examination of documents. The claim to be heard was a wrongful birth claim based on failure to properly interpret antenatal imaging.

The Court allowed the application, saying at [14]:

In my view the plaintiff’s submissions do not satisfactorily answer the key proposition that the breach and causation issues in this action are complex and will involve a detailed analysis of divergent expert medical evidence contained in voluminous documents. I am satisfied that notwithstanding the plaintiff’s prima facie entitlement to a jury, the number of issues in respect of which there will be divergent expert views set out in documents which would go into evidence and the reliance by the medical experts on learned scientific papers, give the evidence a quality that is significantly outside that which can conveniently be considered by a jury. The reports, proofs and papers are documents that would require prolonged examination in the nature of a scientific investigation that the average juror could not be expected to apprehend and undertake, even with the most careful summing-up of the evidence and directions of law given by the trial judge.


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