DAVIDS HOLDINGS PTY LTD v HUNTINGTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirByY P, MCHUGH and CLARKE JJA 4 August 1988, 4 August 1988 [1988] NSWCA 34 PERSONAL INJURIES — QUANTUM — JURY VERDICT Clarke JA In this appeal the appellant, who was the defendant in the court below, challenges an award by a jury of damages in favour of the respondent in the sum of $250,000. The appellant contends that that amount is excessive. It is trite law that a defendant who seeks to contend that a jury's verdict is excessive faces a heavy burden. The test is, in my opinion, correctly expressed in the Amended Notice of Appeal to this effect, that the award of the jury in favour of the plaintiff was such that a reasonable jury properly instructed could not have found it upon the evidence. I therefore concentrate my attention on the question whether the award which was made in this case is such that no reasonable jury properly instructed could have made. The manner in which the appeal was conducted renders it unnecessary to dwell upon the fine details of the respondent's injuries, his consequent disabilities and the development of his condition to the time of trial. I will therefore content myself with outlining the basic facts. Prior to ceasing work on 17 April 1982, the respondent had worked for the appellant for a number of years. In about September 1981 he started working on a machine known as the order matic machine. In the course of his employment working on that machine he was required to lift cartons on a repetitive basis. Towards the middle of May, and perhaps even before, he noticed pains in both his arms. On 17 May, which on my understanding was a Monday, he returned to work after a weekend and after a short time felt the onset of significant pains in both arms. He left work then and has not worked since. There have been varying diagnoses of the condition that led to the respondent's disabilities but I think it can be said that the doctors all thought that he had bilateral medial epicondylitis. It may be that he also has bilateral flexo-tendonitis and some other conditions. Whatever the precise diagnosis was, there was evidence upon which the jury could conclude that he suffered from a permanent 70% diminution in the use of the left arm and 20% diminution in the use of the right arm. He himself said that he could not do work involving repetitive lifting but admitted - and this is a factor relied upon by the appellant - that he could do work as a clerk. The case which he sought to make was that he had sustained, as a consequence of the negligence of the appellant, significant damage to both his arms which substantially affected his ability to work. He had not returned to employment since he ceased to work on 17 May 1982 and he accepted that he had not made any efforts to find alternative employment Nonetheless the essence of the case which he put was that in view of the difficult market for disabled people aged 2 UNREPORTED JUDGMENTS about 42, which is what the respondent was at the date of trial, he should be compensation upon the basis that he would not have been successful in obtaining any work. I should add that prior to the hearing the respondent made an application for workers' compensation and on 11 May 1984 Judge McGrath handed down an award in which he concluded that the respondent was totally incapacitated for work from 17 May 1982 to 1 April 1983 and thereafter had been partially incapacitated for work. The trial was accordingly conducted upon the basis that estoppels arose from these findings There is no problem with the estoppel concerning the finding of total incapacity but I must say that the estoppel based on the finding of partial incapacity could not have provided much assistance to the jury. I say that simply because there is no indication in the finding, nor in the estoppel, as to the extent of the residual capacity. That aspect was left completely open to the jury and they would have been entitled to find that his residual capacity during the period was very slight indeed. In order to expose, so far as it could be exposed, the jury's reasoning, counsel for the appellant put before the court certain examples which he submitted showed that the award for future economic loss was beyond all proper bounds. For this purpose he accepted that the out-of-pocket expenses which could properly have been allowed in accordance with his Honour's directions was $10,000. He also accepted, but only for this limited purpose, that the jury were entitled to award $64,000 for economic loss to the date of trial. He then asked the court to assume that the maximum which could properly have been awarded for general damages was $50,000 with the consequence that $126,000 was awarded by the jury for economic loss for the future. I am not so sure that $50,000 is the maximum which could have been awarded for general damages, bearing in mind the substantial nature of the respondent's disabilities but, even accepting that figure, I am not persuaded that it was not open to the evidence for the jury to have awarded $126,000 for impairment of future earning capacity. The parties agreed that if the respondent had still been working in his old job he would have been earning $349 per week nett at the date of trial. Accordingly, if the jury had concluded that he was, in essence, totally incapacitated for work, or would on the probabilities have been unlikely to earn any moneys as a consequence of his disability, they were at liberty to approach the matter on the basis of a loss of $349. It may be, however, if they had done this they would have awarded an excessive sum. The difficulty in the case is to determine what amount should be deducted from this figure, or what allowance should be made, to take account of the undoubted residual capacity that the respondent enjoyed. In this respect the appellant relied on two factors. The first is one which I have already mentioned, that is, that he admitted that he could work as a clerk, and the second was the evidence from Dr Champion who was called on behalf of the respondent, who said he would encourage the respondent to work as a clerk. It was open to the jury therefore, and proper for them, to conclude that he had the physical capacity to work as a clerk. The appellant put the case to the jury upon the basis that the respondent should only be allowed the difference between $349 and what a grade 3 clerk would be earning. The evidence demonstrated that the nett weekly wage of a grade 3 clerk URJ DAVIDS HOLDINGS PTY LTD v HUNTINGTON (Clarke JA) 3 was, at the date of trial, $258. Accordingly, the difference which was properly allowable, according to the appellant's submissions at the trial, was $91 per week. If that figure had been used as the basis for a calculation of the future loss it is quite plain that the jury could not have found $126,000 but it seems to me that that approach is looking at the matter from the best point of view available to the appellant. Counsel had to concede that, on the evidence, there was partial continuing incapacity and he had to concede that that was likely to involve the respondent in losses in the future which were at least, on his argument, about $91 nett per week. To approach the appeal on the basis that the jury were bound to adopt that course is to lose sight of the fact that the jury were entitled also to have regard to the competing arguments which had been put by the respondent. They were not bound, obviously enough, to find in accordance with the appellant's arguments. No doubt counsel for the respondent put to the jury that, whilst theoretically the respondent was fit for work as a clerk, it would be quite inappropriate and unjust to award damages on the basis that he would enter the workforce on the day following the ending of the trial and work as a grade 3 clerk from that day until his retirement. No doubt there would have been emphasis placed on difficulties within the labour market at the time of trial and the fact that there had been no amelioration of those difficulties for many years now and no indication that they were likely to be lessened in the future. Counsel would no doubt also have put to the jury that the disabilities suffered by the respondent were likely to mean that he was not going to be able to hold one job for ever and a day and that he might in fact find it difficult to hold any job. When these factors are taken into account it becomes obvious that the jury was entitled to adopt a figure within a very wide range indeed. One approach which may have appealed to the jury is that he should be treated as having lost half his earning capacity or something slightly more or less than that. If they had adopted that approach they would have used as their basis a figure of $150 to $170 per week for the 23 years of the respondent's remaining work capacity, upon the assumption that he continued working to the age of sixty-five. The application of the tables to a figure of $170 per week and allowing 15% discount for the vicissitudes returns a sum very close to $126,000, or so counsel for the respondent informed the court. If that was the approach adopted by the jury it would seem to me not to be open to any substantial objection. As I have sought to point out they were entitled to reach a figure within a very wide range and I may be so bold as to say they could have even thought of his loss as being higher than half. Certainly they were not bound to approach the matter on the basis that his physical capacity to work as a clerk should necessarily lead to a calculation based on the premise that he would receive the earnings of a Grade 3 clerk day in and day out. Accordingly I am far from persuaded that an allowance of $126,000 was so far wide of the mark to require it to be set aside.Indeed I am not even persuaded that it errs in any respect. I would therefore reject this aspect of the appeal. The appellant also sought to attack the award of $64,000 for past economic loss. That sum was agreed only mathematically.The parties were at issue as to what the precise loss was. 4 UNREPORTED JUDGMENTS The respondent claimed that in reality even though he enjoyed a partial capacity for some portion of the period in the past he should be treated as though he would not have earned any moneys no matter how hard he had tried to get a job. The appellant on the other hand argued that it was quite inappropriate to allow the total figure when the undisputed evidence was that he was partially incapacitated only for a significant period and this evidence was supplemented by medical opinion to the effect that he could have worked as a clerk. That was the issue which was joined between the parties and the only question now is whether it was open to the jury to accept the respondent's approach. There are certain attractions with the appellant's argument that there should have been a discount from that figure to take account of the vicissitudes and his capacity for working as a clerk but on the other hand his Honour directed the jury that it was open to them to award to the respondent up to $64,300 for the past loss of earnings. Once it is appreciated that a direction was given which entitled them to award $64,300 and no objection was made to that direction I find it quite impossible to say that a jury so instructed could not find that figure. I would therefore reject this ground of appeal also. In the circumstances, I am not satisfied that error to the extent necessary has been demonstrated and in my opinion the appeal should be dismissed with costs. Kirby P I agree. McHugh JA I also agree. KIRBY P: The order of the court accordingly is appeal dismissed with costs. Counsel for the appellant: J M N ROLFE QC & R A VINCENT Counsel for the respondent: D B MILNE QC & P HAMLIN Solicitors for the appellant: HUNT & HUNT Solicitors for the respondent: VICKOVICH & ASSOCIATES