THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, HOPE and MAHONEY JJA 7 December 1988, 7 December 1988 [1988] NSWCA 156 PRACTICE AND PROCEDURE — jury trial — appeal against judgment after jury's verdict — complaints about judge's summing up to jury — allegation that instruction inadequate — extent of duty of judge — stringent requirements to secure disturbance by appellate court on the ground of insufficient instruction by the trial judge referred to by Mahoney JA (Kirby P and Hope JA concurring) — reference made to the requirements of Pt51 r16 SCR to secure a retrial. DAMAGES — quantum appeal — defendant complains about the failure of the trial judge to give sufficient instruction to the jury about the discount to be made for exigencies — proof of pre-existing condition of the spine — trial judge warns jury only to compensate for trauma of the subject accident — other available hypotheses based on the evidence which would sustain the jury's verdict — held: (Mahoney JA; Kirby P and Hope JA concurring) No error in the verdict requires disturbance of the verdict by the Court of Appeal — no issue of principle — appeal dismissed. Supreme Court Rules, Pt51 r16. ORDER Appeal dismissed with costs. Mahoney JA On 2 January 1980 the plaintiff fell in the corridor in the building of the defendant hospital. She has sued the hospital. On 24 June 1988 a jury gave a verdict for the plaintiff for $371,412. On 28 June 1988, after argument as to interest, judgment was entered for the plaintiff for $419,720. The difference between the verdict and the judgment is the interest which his Honour saw fit to award. The defendant has appealed to this Court against the judgment. The facts of the matter are within a very short compass. It is accepted that the plaintiff was in the hospital as, to use the language used in the pleadings, an invitee of the hospital. It was accepted also that she was going to see a doctor in the hospital and was walking along a corridor for that purpose when she fell. The essential difference between the parties in relation to the facts of the accident was why she fell. The plaintiffs claim was that she fell because of the condition of the floor. The defendant's case was - I put the substance of it only - that she fell because of the shoes that she was wearing or at least not because of the condition of the floor; and, of course, there was a difference between the parties as to the quantum of damages which the plaintiff suffered from the fall. The defendant has appealed to this Court on a number of grounds, some relating to liability and some relating to the quantum of damages. It will be convenient to deal with the grounds of appeal, insofar as they have been pressed, generally in the order in which they are set forth in the notice of appeal. The first ground of appeal is that his Honour was in error in permitting the plaintiff to call evidence from Mr CG simpson, an expert engineer, who gave evidence touching the condition of the floor. The plaintiff had not served a report of the expert in accordance with Pt36 r 13A of the Supreme Court rules. It is not 2 UNREPORTED JUDGMENTS in contest but that Mr Simpson was an expert and that the rules required that a copy of a report by him should be served. The reason given for failure to serve it was, as appears from the transcript, that the plaintiff's solicitor had thought that a copy of the report had been served but in fact by error it had not been served. The matter was placed before the learned judge by the tender to him of the report. The report was not tendered in evidence but presumably to evidence that a report had been made. Argument took place. The defendant did not seek an adjournment of the proceeding and the learned judge exercised his discretion to allow the witness to give evidence notwithstanding that the report had not been served. The trial then proceeded for some considerable time. During that time it may well be that the defendant, had it desired, would have been able to instruct and produce an expert to give evidence contrary to the evidence given by Mr Simpson. The argument has been that his Honour erred in the exercise of his discretion in this regard. His Honour did not give reasons for his exercise of his. discretion in favour of the plaintiff and it was not essential that he do so. There therefore does not appear to be any patent error of principle or of fact in the exercise of that discretion. But it was submitted by Mr Leslie QC for the defendant that his Honour gave indications during the course of argument which would provide some explanation of why the defendant did not seek an adjournment or take such other action as might possibly have been taken in the circumstances. No material of this kind appears in the transcript. I do not think that the court should read into the transcript things which in the relevant sense are not there. I see nothing in the exercise of the learned judge's discretion to indicate that his Honour went wrong or that this Court should set aside the discretion, exercise it itself and exercise it in a different way. This ground of appeal therefore in my opinion should fail. The notice of appeal, in ground two, sets forth six bases on which it is said his Honour erred in declining further to direct the jury in the course of his summing-up. These matters go essentially, at least in the main, to directions which it is said should have been given in order that there should be placed properly before the jury the factual issues which it was necessary for them to determine. As this Court has said in previous cases, what is necessary in a summing-up must be determined by reference, inter alia, to the way in which the case was conducted at the trial, what has been said by counsel in the course of their addresses and what are the issues, or the important issues, which, from the conduct of the trial and otherwise, have emerged as being issues on which the parties fought the case. Therefore to differ on appeal from a learned judge's determination of what was necessary for the purpose of summing-up in this regard is in my opinion not an easy matter. It must appear that the learned judge went significantly wrong in what he did and that decision must be arrived at having proper regard to what may not appear in the transcript in relation to, as I have described it, the way in which the case has been fought at the trial. A summing-up is not readily to be set aside because of suggested errors of this kind. A number of points were taken in the notice of appeal. I shall refer briefly to them. It was submitted that, as it is put in the notice of appeal, Mr Simpson conceded in cross-examination that his opinion was irrelevant unless the jury found all of the variables on which his opinion was based to have been proved and to have been applicable in the present case. In his submissions, including his written submissions, Mr Leslie submitted that the jury was in substance not URJ THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS (Mahoney JA) 3 directed that the validity of the expert's opinion in relation to the state of the floor depended on the validity of the sample examined by him. I do not think that that submission should be accepted. The learned judge was careful on more than one occasion to point out the limits of the evidence given by Mr Simpson and there was cross-examination on, for example, the sample of the linoleum taken by him, admittedly some years after the accident, and the place from which it was taken. Observations were made in cross-examination, at least by implication, as to the significance of this and it may be assumed this matter was referred to in the course of counsel's address. However this be, I do not think that there was any deficiency in the summing-up which would warrant a further direction in this regard. It was then submitted that his Honour should have directed the jury in terms more clearly as to the onus of proof and as to the significance of the causation requirements of the law. It is said that his Honour did not indicate how the principles of law in relation to onus of proof and causation were applicable to the facts of the particular case. It was said that the jury were not directed that if they were not satisfied that the plaintiff slipped, tripped, or slipped and tripped, the hospital was not entitled to a verdict. I do not think that a direction precisely in these terms was necessary. I think that the directions which were given, though given at different times during the summing-up, made the jury adequately aware of what their task was in this regard. It was then submitted that the evidence of one of the witnesses, Mr Iskanda, should have been the subject of further directions. Mr Iskanda gave evidence as to what he saw on the particular occasion. He said that he had in fact seen the plaintiff fall and gave some description of it. He also gave evidence, some of which favoured the plaintiff and some the defendant, as to his recollection of what was the condition of the floor at the time. The point that has been taken in the submissions made to the court is that his Honour should specifically have directed the jury as to the uncertainty of the evidence of Mr Iskanda because of the delay which had taken place between the accident and the trial. Such a direction would, of course, have been proper but it was not necessary that it be made. I see no error in the summing-up in this regard as would require relief to be given. It was then submitted that the jury should have been directed that there was no evidence that a non-slip floor polish was not applied to the floor at the time when the plaintiff fell. In the written submissions it was submitted that his Honour's summing-up was defective in that it did not refer to the impossibility of determining, from the sample of the linoleum which the expert had taken, the state of the polish at the time of the fall. This submission is based upon - I put the matter generally - the evidence given by Mr Simpson that the slippery nature of the floor could have been corrected had an appropriate polish been applied. The submission is that the jury could not conclude that some sort of polish of this kind had not been applied and they should specifically have been directed in this regard. I do not think that such a submission in terms was necessary. The evidence given by Mr Simpson was short and the jury would no doubt have had little difficulty understanding it. They would have appreciated what the position was in relation to this matter and the difficulties of his expressing an opinion some six years or so after the accident. However, it is sufficient to say that I do not think 4 UNREPORTED JUDGMENTS that any defect that existed in the summing-up in this regard required correction or that if correction was not given the defendant was entitled to relief in respect of it. The next matter taken under the grounds of appeal relates to the case as it was pleaded and as it was fought. The submission was that the claim that the floor was highly polished and wet was insufficient to support an allegation that the floor without an underlay was dangerously hard and it was submitted that his Honour should in his summing-up have made this matter clearer to the jury. The basis of the submission is essentially this: it was said that the plaintiff in her statement of claim had relied upon the fact that the floor in question was wet or was slippery or was wet and slippery. The submission was that in the statement of claim it was not suggested that the floor was relevantly dangerous because there was no underlay beneath the linoleum. Mr Simpson had given evidence that because there was no underlay under the linoleum, the linoleum was therefore harder and therefore apt to be more slippery than had there been underlay there and the submission suggests the jury may well have determined the case against the defendant upon the ground that the floor was unnecessarily slippery because of the omission of an underlay. The argument has been that such a case was not really open to the plaintiff. This matter was put to the learned judge. His Honour indicated his view that whatever may have been the state of the pleadings, the case was fought upon a broader basis. He referred to the opening of the case to the jury by Mr Evatt. It is clear that Mr Simpson was allowed to put as a separate basis of danger in the floor the opinion that he expressed to the effect of the lack of underlay. It was not submitted when the evidence was given that such a claim was not within the case as it was open to the plaintiff to put. I do not think in the circumstances that there was any error in his Honour not expanding his summing-up to give a direction such as was sought in this regard. Finally, it was submitted that his Honour should have given a specific direction to the jury that it was open to them, while accepting part of the evidence of a witness, to reject another part of it. This is a direction which often is given but it is not essential that it be given. Whether it will be an appropriate direction depends, of course, upon the way in which the case has been conducted and the issues as they have emerged. I see nothing in the present case which made it necessary that the judge give such a direction. I see no error in this which would entitle the defendant to relief. The third ground of appeal suggests that the jury's verdict was excessive in all the circumstances. In order to deal with this submission it is necessary to refer briefly to the evidence in relation to loss which was placed before the jury. It is against the background of that evidence that an assessment can be made as to what was open to the jury. As [have said, the jury gave a verdict for the plaintiff in the sum of $371,412. Mr Leslie, in his detailed examination of the basis of this verdict, conceded that $71,412 would have been a proper sum to include in the verdict in respect of the miscellaneous items of loss up to the date of the trial. These included hospital and medical expenses and, as he accepted for the purposes of this submission, the costs paid to the Blacktown Home Care Unit in respect of domestic help to the plaintiff as the result of her injuries between the date of the accident and the date of the trial. The plaintiff had claimed economic loss to the date of trial and had claimed amounts in respect of expenditures for items purchased from a chemist at $18 per week and amounts in respect of home help at $25 per week. Mr Leslie, URJ THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS (Mahoney JA) 5 as I have said, proceeded on the basis that $71,412 would be appropriate to be included in the verdict in respect of these items and he submitted $300,000 should be seen as the amount awarded to cover the two future items, namely future economic loss, future expenditure in respect of chemist's supplies and home help and general damages. His submission was that the future economic loss should be assessed upon the basis of a net wage of some $230 per week. The total future outgoings or loss would then be $230 per week, plus $18, plus $25 in respect of the two matters to which I have referred, totalling $273. The jury was invited to use a multiplier of 816 to take account of a period of some twenty-one years, being the future working life of the plaintiff. Me suggested that, applied to the figure of $273, this produced $222,768. He submitted that the net result was that, taking into account what might be open to the jury to award for general damages, there had been an insufficient discount of the amount awarded for these future losses and outgoings and that this showed that the jury had not properly directed its mind to the particular matter. I detail these matters in deference to Mr Leslie's careful analysis of the figures but I think there are at least two answers to what has been put. The first of them is that his argument places, in my opinion, too heavy a stress upon the discount factor. It requires that, for the jury to approach the matter correctly, they must have applied to the damages otherwise available a it was much greater factor of discount than in my opinion it was necessary for them to have applied. The evidence on which Mr Leslie relied in relation to the discount factor was that touching the plaintiff's condition prior to the accident. The plaintiff's essential loss due to the accident was damage to her spine. Following the accident she had a spinal operation done by a Dr Sengupta. It was accepted that prior to the accident the described as idiopathic scoliosis and, as his Honour directed the jury more than once in his summing-up, the jury was to give her damages only to the extent that her pre-accident condition had deteriorated as the result of the accident. The doctor was asked about the condition. He described the condition. It was suggested to him that the operation which he had carried out and the difficulties flowing from the operation may have been due entirely to the scoliosis and not to the trauma of the accident. The doctor's evidence was that the operation involved a combination of factors. He said: "But trauma would be the main reason in this case. If there is a major trauma because one would not expect a massive disc prolapse like her at her age without any other reason, not due to the scoliosis she had." Subsequently the doctor was directed to the question whether, without the trauma of the accident, she might have suffered difficulties in the future. The question and answer is recorded in the appeal papers in the following form: MR LITTLEMORE: Q. Somebody with that condition at a relevantly young age, 30 to 31, is going to have big back problems in the future without trauma, are they not? A. One would expect them to have back pain from time to time, especially as they grow older, and with childbirth and child care. There is then in the appeal papers a further answer: That is correct. Q. That is going to aggravate the problem? A. It should. 6 UNREPORTED JUDGMENTS That is the substantial evidence in relation to the matter. The doctor was not asked for any opinion as to whether, apart from the accident, the plaintiff would have suffered any particular pain at any particular time and what the extent of it would be. He was not asked the extent to which the pain from her pre-accident condition would have interfered, if at all, with her capacity to earn income and he was not asked whether the pain which she would have suffered would have interfered, if at all, with her income earning capacity in other ways. Therefore the scope of the jury in assessing the effect or possible effect of her pre-accident condition was in my opinion very wide. I do not think that they were required to discount what the plaintiff might uninjured have earned to the extent required by Mr Leslie in order to sustain his submissions. Taking into account what they might have done, I do not see error in that respect in their judgment. The second matter that may be referred to is that mentioned by Mr Evatt in his address to this Court. Mr Evatt pointed out that Mr Leslie's calculations took no account of the fact that in addition to the income which she was earning as wages, and no doubt would have earned as wages had she not been injured, the plaintiff was also earning significant amounts by sewing work which she did at home. He submitted - I put the matter generally - that the jury could and should have taken into account an amount of, say, $100 per week as being the loss which she suffered because of this particular ken into factor. He submitted that when such an amount is taken into account the verdict of the jury is to be seen as by no means excessive and as being well within the scope of a sound discretionary judgment. I agree with the substance of this submission by Mr Evatt. I think that when this additional amount is taken into account the apparent force of Mr Leslie's submission is considerably lessened. There is perhaps one other matter that may be mentioned. Mr Leslie's calculations were based upon the future loss of income of about $230 per week. There was evidence before the jury as to the level of the award wages in 1988 and on that basis the future wage loss might have been of the order of $262 per week. When this is taken into account it becomes clearer, I think, that the jury's verdict was not beyond the scope of a sound discretionary judgment. I do not think that in those circumstances the court should interfere on this ground. The fourth ground of appeal details five separate matters in respect of which it is submitted that his Honour made errors in not further directing the jury or directing them differently. I do not think that it is necessary to go through each of these in detail. Mr Leslie did not treat them separately but, insofar as he dealt with them, dealt with them in the course of his submissions upon the third ground of appeal. It is sufficient in my opinion to say that there is nothing in them which would require that relief be given to the defendant by way of setting aside the jury's verdict. In all the circumstances therefore I see nothing in the summing-up in respect of which there was such an error as would require relief to be given. I have in mind, insofar as it may be relevant, the provisions of Pt51 r 16. I nothing in the summing-up by way of misdirection or otherwise Which would entitle the court to give relief. In these circumstances, in my opinion the appropriate order to be made is that the appeal be dismissed with costs. Kirby P I agree. Hope JA I agree. URJ THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS (Hope JA) 7 KIRBY P: The orders of the court are, appeal dismissed, the appellant to pay the respondent's costs.