ONSLOW PASTORAL PTY LTD v COLLINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MAHONEY and CLARKE JJA 20 October 1988, 20 October 1988 [1988] NSWCA 108 Negligence — motor cycle accident — verdict by jury in favour of plaintiff — appeal on liability and damages — no question of principle. ORDERS (1) Appeal allowed; (2) Judgment set aside; (3) New trial ordered limited to damages; (4) Order as to costs of first trial affirmed. Respondent to pay costs of the appeal. Hope JA The plaintiff was injured when at nineteen years of age he was riding a motor cycle on a road outside Goulburn, went over the crest of a hill and ran into sheep which were being driven along the road for the defendant. The injuries which the plaintiff suffered as a result of the accident concerned his knee; I will not trace the history of his operations, disabilities and inconvenience consequent upon the accident and the injury but, in due course, he returned to employment, although after a while in a rather different employment to that in which he had been engaged at the time of the accident. He had previously been a shearer and a rouseabout. After the accident he found difficulty in doing that work and became employed as a delivery man for a firm called Lilac City Distributors. He had no plans at the time of the trial to return to the shearing sheds, and his delivery job was what he regarded as his job for the indefinite future. His action came on for hearing in the District Court before his Honour Judge Lloyd-Jones and a jury, and the jury returned a verdict in favour of the plaintiff in the sum of $190,076.20 with a finding of contributory negligence on the part of the plaintiff of five per cent. Having regard to the jurisdictional limits of the District Court appropriate to the case, the verdict was reduced to $100,000 plus interest. In its amended notice of appeal the defendant challenges the jury's verdict on a number of grounds relating to the directions of the learned trial judge, the admissibility of some evidence, and the amount of the verdict. As regards negligence, it is submitted that his Honour's directions were erroneous, or, at least, misleading. In particular, exception is taken to this passage in his Honour's summing up:- " The plaintiff's claim is made on the basis that the defendant in all the circumstances was negligent. Did he fail to take reasonable care for the safety of the plaintiff as the user of a public highway? Now the law is this: a person who drives sheep on a highway is required to take the steps to remove any foreseeable risk of injury to road-users, including the plaintiff. That is any risk which is not merely fanciful or farfetched. There is a duty of care towards other road-users. A person driving sheep is negligent if he does what a reasonable person would not do or fails to do what a reasonable person would do, to avoid the risk in all the circumstances. If a person fails to take steps to remove foreseeable danger then he is negligent. If the defendant was negligent in this case then the plaintiff is entitled to his verdict." 2 UNREPORTED JUDGMENTS It is submitted that the word "steps" which his Honour told the jury the person driving the sheep on the highway was required to take was erroneous and misleading, and that the jury should have been told that what the person driving the sheep on the highway was required to do was to take reasonable steps in respect of foreseeable injuries to other road users. It is also submitted that in the last two sentences of this passage his Honour left the jury with the concept of something approaching an absolute responsibility to take steps to remove dangers, and not merely an obligation to take reasonable steps to that effect. Although, with due respect to his Honour, these directions could have been more happily phrased, in my opinion, in the context of the trial and particularly having regard to the fact that the jury would have been addressed by counsel before his Honour's summing up, the jury were sufficiently instructed that it had to consider what a reasonable person would or would not do in the circumstances to avoid the risk that might arise. I do not think this part of the summing up was erroneous so as to justify an order for a new trial on the ground of liability. It is then submitted that the learned trial judge gave a number of misdirections to the jury about three passages in the evidence. The first one concerns what was said by Sergeant Hatte, who the learned trial judge told the jury had given this evidence:- "...The plaintiff told him that he was doing about 110 kilometres an hour. About....The next day at the police station he said about 110 again and he told the policeman the following day that there was a lady on the left-hand side of the road, that he could not see the sign, this was the day after the accident, that the lady was bending down over a guidepost and that he didn't know if she was tying or untying the sign. But he had some idea that it might have been adverting to cattle. Well, that is all very vague, you may think. It is a matter for your assessment..." The evidence of Sergeant Hatte was that the plaintiff had said to him in relation to the question of the sign:- I didn't get a good look at what was written on the sign because she was leaning over it. I thought it said 'cattle' or something. His Honour's directions are challenged in two respects. In the first place it is said that his Honour did not tell the jury that the plaintiff had been riding at about 110 kilometres an hour at the time when he saw the sign, and continued to ride at that speed until he rode into the flock of sheep. Again, it is submitted it was not correct for his Honour to tell the jury that he could not see the sign and that he had some idea that it might have been adverting to cattle. It was submitted what the plaintiff said to Sergeant Hatte was that what he saw was a sign, that there was writing on the sign, and that he thought it said "cattle" or something. No doubt, his Honour's directions could have been more precise, but, again, in the context of the trial, the evidence which the jury had heard, and the addresses which counsel for both plaintiff and defendant must have made to the jury, I do not think that there is such an error in these directions as to support the claim for the setting aside of the verdict in favour of the plaintiff. The second matter concerned the evidence of Mrs Tozer as to tying the sign over a post. The complaint is that the learned judge directed the jury as to part only of the relevant evidence. Here again, in the context of the trial, I do not think that error is shown. The third question concerns evidence given by Mr Green, an employee of the defendant, as to the distance from the crest at which the flock of sheep were at the time when the plaintiff drove into them. There was evidence from a number URJ ONSLOW PASTORAL PTY LTD v COLLINS (Hope JA) 3 of witnesses as to that distance, some supporting what his Honour said, but Mr Green told the jury that the flock of sheep was about 150 metres from the crest. When he was directing the jury, the learned trial judge first told it:- ... it does seem clear, you might think from the evidence, that the plaintiff had come over a crest and the sheep were just below it. However, later in his directions the learned trial judge correctly told the jury what Mr Green had said and, in particular, told the jury that he had said that the rise was about 150 metres from the flock. It is true that these two statements were made at different times during the summing up, but it seems to me no error was involved in these directions. My conclusion about these evidentiary matters is confirmed by the failure of counsel for the defendant to complain about them at the trial, although he took other point in respect of the summing up. The other matter on liability concerns contributory negligence. The plaintiff's case for negligence was the absence or inadequacy of any warning to road users and, in particular to him, of the existence of the flock over the crest, hidden from any person approaching it in the direction from which the plaintiff was approaching it. Assuming the plaintiff made out that case, it was the defendant's case that the plaintiff had failed to take reasonable care for his own safety and that he was responsible for some part of the damage which he suffered. The failure to look after his own safety arose because, knowing that there was a sign of some kind which he thought related to cattle, he did not slow down or take other steps to protect himself when he had passed the sign. The learned trial judge gave these directions to the jury on the question of contributory negligence:- A further direction of law - the defendant pleads that the plaintiff was guilty of contributory negligence. Now negligence used in that sense is used in a sense different from what it bears in relation to a defendant's conduct as alleged against the defendant by the plaintiff. It does not necessarily connote conduct fraught with undue risk to others, and this is the essence of it - contributory negligence is rather a failure on the part of the person injured to take reasonable care of himself in his own interests in all the circumstances. Did he cause part of his own damage? Is he responsible for part of the damage in that way? That is what the defendant claims here. The facts of course are matters for you. His Honour went on to say that if the jury found contributory negligence on the part of the plaintiff the verdict must be reduced accordingly. It is submitted that the learned trial judge failed to tell the jury how the concept of contributory negligence should be applied to the facts of the case. That is, he simply left the jury with the concepts of contributory negligence and of the failure of the plaintiff to have due regard to his own safety, but did not relate those concepts to the failure by the plaintiff to take some care after he had seen the sign, even though he could not read it properly or at all. Here again it would have been better if the learned trial judge had been more specific about the application of the doctrine of contributory negligence to the facts of the case, but, again, in the context of a trial where counsel for both parties had addressed the jury and must have addressed on the question of contributory negligence. I do not think that the directions of the learned trial judge were so deficient as to warrant the setting aside of the verdict on that account. There remains the challenge to the amount of the verdict. There are a number of challenges, but it is sufficient to deal with two only. 4 UNREPORTED JUDGMENTS The first concerns the admitted pre-existing condition of osteochondritis dissicans from which the plaintiff was suffering, and the prospect that he would have had to undergo operations to his knee, even if he had not had the accident. The learned trial judge, in the course of discussing the evidence which Dr Cairns gave, said this to the jury:- So on that assumption, this was a wrong assumption, you may think, he was asked effectively whether or not the plaintiff would have had these problems anyway and if that wrong history had been so then the doctor agreed it probably would have. The doctor had given evidence that the plaintiff would probably have had to have had the operations even if the accident had not occurred. This evidence had been preceded by a cross-examination of the doctor on the basis of a wrong assumption made by counsel. In giving the direction I have just quoted, the learned judge told the jury that this answer itself was also related to that wrong assumption, that is, that if the wrong history had been correct, the plaintiff may well have had the operations even if he had not been involved in an accident. It was clear from this direction that the jury would understand that the doctor was not saying that the plaintiff would have probably have had the operations if the wrong assumptions were irrelevant, that is, on the basis of the correct medical history of the plaintiff. It is clear from the evidence that the doctor did not give the answer on the basis of any wrong assumptions. I will not read the whole of the evidence but the questions which led up to this evidence followed questions which were put upon the wrong basis, but then commenced with this statement by the cross-examiner:- Putting that aside and going on to an entirely different topic for the Moment. As it seems to me, that is the basis on which the doctor answered the question and his answers were not given with reference to any wrong assumption. This was an important matter because it was an important part of the defendant's case in respect of damages that the plaintiff would have suffered some problems from his knee in any event. The directions which the learned trial judge gave deprived that submission of much, if not all, of its force. The other question relates to the amount of the award. As I have indicated, the amount of the verdict was $190,076.20. Deducting agreed amounts for out-of-pocket expenses and loss of wages, that verdict would be reduced to $186,000. The plaintiffs injury was to the knee, and undoubtedly the jury were entitled to award him a substantial sum in respect of the pain and suffering and disabilities which he suffered as a result. It is difficult to imagine however that an award of a sum in excess of $50,000 would have been justified. In that event the verdict included a sum of approximately $136,000 for economic loss. One can vary the latter amount depending upon the amount of damages which is thought the jury might properly have awarded for pain and suffering. It may be the proper amount for pain and suffering would be less than $50,000; but I think the award for future economic loss must have been in the vicinity of at least $130,000. In my opinion there was no evidence before the jury to justify an award of that size. There was no evidence as to whether the wages for the job which the plaintiff had at the time of the trial, namely, that of a delivery man, were greater or less than those he would have earned as a shearer or rouseabout. There was no evidence as to the problems which the plaintiff would have had in the future in respect of employment save that difficulties with his knee precluded him - and one can assume reasonably - from working as a shearer or rouseabout. At some indefinite URJ ONSLOW PASTORAL PTY LTD v COLLINS (Clarke JA) 5 time in the future he may have had to have some operation, but the precise nature of the operation and the time when it would have to be undertaken did not appear in the evidence. The learned trial judge told the jury that it was not a case where it was possible to arrive mathematically at a sum for economic loss, and he told them that the plaintiff was entitled to be compensated for any incapacity which placed him at risk in getting and keeping employment in the future. He also told the jury that if it found the plaintiff was at risk in this way because of "the osteoarthritis aspect" and loss of income or work resulted, some amount would have to be added to the verdict on that account. His Honour also said that something would have to be deducted from any verdict for the plaintiff because he would be getting the money now and not in the future. In the circumstances an award in the vicinity of $130,000, if not more, for future economic loss seems to me to be so out of proportion to what the evidence justified as to be perverse. It is an mount which, in my opinion, no reasonable jury could have arrived at on the evidence. Accordingly, for the reasons which I have given, the amount of the verdict was so excessive as to call for interference by this Court. The question arises whether there should be a new trial generally or a new trial limited to damages. Sometimes it is appropriate, notwithstanding that there is no defect in the directions or evidence on the question of liability, that a new trial should be had generally. However, in this case the question as to liability was litigated at some length, the jury found a verdict in favour of the plaintiff after giving consideration to the question of contributory negligence, and, in my opinion, there is no reason to send those issues back for a new trial. I propose that the verdict be set aside and that a new trial be ordered limited to damages. The order for costs of the first trial should remain. The plaintiff must pay the costs of the appeal. Mahoney JA I agree. Clarke JA I also agree. Appeal allowed. Judgment set aside. New trial ordered limited to damages. Order as to costs of first trial affirmed. Respondent to pay costs of the appeal. COUNSEL WRwWNE Appellant: BM. TOOMEY QC (W. CARNEY) Respondent: AP. WHITLAM QC (PA. JOHNSON SOLICITORS: Appellant: McC€MAHONS Respondent: LEGAL AID COMMISSION OF NSW