The Jury is Out - Questioning the role of the jury in civil litigation

Back in 2011, a jury in a Supreme Court of Victoria asbestos proceeding awarded a plaintiff suffering from mesothelioma the sum of AU$730,000 for pain and suffering damages. This verdict created significant shockwaves around Australia, given that most state courts still assess pain and suffering damages in similar cases at under AU$300,000 (and significantly under AU$300,000 in some states).

This verdict was appealed, and on 22 December 2011 in Amaca Pty Ltd v King [2011] VSCA 447 (king), the Court of Appeal of the Supreme Court of Victoria upheld the damages verdict. The Court of Appeal was not persuaded, despite acknowledging the significant gap between this damages award and pain and suffering damages awards in other states, that the sum of AU$730,000 for pain and suffering was beyond what a reasonable jury properly instructed and with all due attention to the evidence could award.

The King verdict again raises the question as to whether juries are the most appropriate mode of trial in a modern society looking both for consistency from its courts and access to cost-effective litigation. This is a question no less pertinent now than when posed following the High Court decision of Swain v Waverley Municipal Council [2005] HCA 4, also known as the Bondi bodysurfing case.

In some states and territories, trial by...