ZDRAVKO ALEKSIC v GOODYEAR TYRE and RUBBER CO (AUST) LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY AND MCHUGH JJA 16 November 1988, 16 November 1988 [1988] NSWCA 5 JURY — verdict specifically for out of pocket expenses only without any allowance for damages for pain and suffering — jury must have misdirected themselves — therefore miscarriage of justice — new trial ordered. ORDERS Appeal allowed with costs; verdict and judgment below set aside and a new trial ordered limited to damages. The respondent must pay the appellant's costs of the previous trial. Samuels JA This is an appeal from a verdict of a jury in a trial over which his Honour Judge Levine presided in the District Court. The plaintiff, the present appellant, suffered injury at work when a piece of molten rubber entered his eye. He sues the defendant, the present respondent, alleging negligence, which was not admitted. Hence, at the trial there were two issues: one of liability and one of damages. The injury was sustained on 17 August, a Friday, and it seems that on the following Tuesday, 21 August, the appellant consulted a doctor, who removed a foreign body from his eye, no doubt the piece of molten rubber. The appellant was off work for three or four days and subsequently had further medical treatment and ultimately complained that two weeks or so after the event a spot developed before his eye which limited his vision in a minor degree and caused him other discomfort At the trial there was an agreement upon the mathematical total of the out-of-pocket expenses in the total sum of $620.98, made up of $487 for medical expenses and $133.98 for loss of wages. The appellant does not appear to have been cross-examined significantly upon the incident itself - that is to say, whether he sustained injury at work - but what was very much in dispute at the trial was whether or not any spot had developed, and if so whether it could be attributed to the accident at work of which he complained. As I have said, upon this matter there was a sharp difference and plainly involved in its determination was a real question of the appellant's credibility. The learned judge charged the jury in terms about which there Was no dispute and he told them that the figure for out-of-pocket expenses should be included in an award of damages, if the jury made one. He charged them in unexceptionable terms about general damages and he put the issues to them in sufficient detail. The jury retired at two minutes past three and returned at three fifty-five with their verdict. They said that they found for the plaintiff and when asked, "In what amount? " the foreman said, "Only out-of-pocket expenses". His Honour then queried what that figure was and the answer was supplied accurately by the foreman. Hence, the jury found that the appellant had sustained the injury of which he complained; that it was caused by the respondent's negligence; that he was justified in remaining off work for three or four days; that he sustained the 2 UNREPORTED JUDGMENTS wage loss claimed and that he had undertaken the medical treatment which he asserted and had paid or become liable to pay the amount stipulated in respect of it. On that footing the appellant appeals, submitting that the jury must have misdirected itself in failing to award anything by way of damages for pain and suffering, inconvenience and the like, for the undoubted fact - that is to say, the fact found by the jury - that for three or four days at least, and it may be for one or two days more, the appellant had been unable to work because of the injury which he had sustained. In my view, on that basis it was not open to the jury to refuse to award something by way of damages for pain and suffering and their failure to do so indicates that they misdirected themselves and that there was therefore a miscarriage of justice. A similar matter arose in an appeal which is unreported (Schuldiener and Anor v Power, a decision of this court on 19 March 1981) in which a jury, having awarded merely the agreed out-of-pocket expenses and no more were held to have misdirected themselves and a new trial was ordered. As my brother McHugh pointed out during the argument, had the jury returned with a verdict in the sum of, say, $620 it might very well be that the appellant would have had a much more difficult task in overturning it. But in this case it is plain beyond doubt that the jury intended to award merely the out-of-pocket expenses and in that resides the error which, in my opinion, requires us to intervene and set aside the verdict and the judgment. The final point is how the future conduct of the matter should be disposed of. The parties have, if I may say so, sensibly enough agreed that if we are of the opinion that we can do so we should reassess the damages. However, as I have indicated, there was at the trial a very sharp issue about the nature and the continuing consequences, if any, of the plaintiff's injury. That necessarily involves the question of credit. We, of course, have not seen the appellant in the witness box and, in my view, we could not with justice to both parties reassess the damages ourselves. However, since the question of liability has been determined and since there does not appear to have been any credit issue upon that, in muy view the new trial which; must be ordered should be limited to damages. Accordingly, I would propose that the appeal be allowed with costs, that the verdict and judgment below be set aside and a new trial ordered limited to damages. The respondent must also pay the appellant's costs of the previous trial. Mahoney JA I agree. McHugh JA I also agree. Appeal allowed with costs; verdict and judgment set aside and new trial ordered limited to damages. Respondent to pay the appellant's costs of the previous trial.