CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MCHuGH JJA 20 June 1988, 20 June 1988 [1988] NSWCA 24 APPEAL AND NEW TRIAL — jury misdirecting itself — possible inference from amount of jury's assessment that they had added two components of the damages and ignored others — whether inference should be drawn — whether miscarriage of justice. JURY — assessment of damages — whether inference of misdirection available. JURY — miscarriage of justice — appeal — new trial. ORDERS Appeal allowed — judgment below set aside save for the order for costs. Order new trial limited to damages respondent to pay appellant's costs of the appeal. Samuels JA The plaintiff in the trial before Campbell J and a jury was born inYugoslavia in August 1943 and came to Australia in 1965. His command of English was poor. He had spent his working life in Australia as a labourer or as a concrete finisher, at all events engaged in heavy work. He had no other skills. The action was one in which he sued the appellant, the defendant of course below, in negligence and for breach of statutory duty. The plaintiff, as I will continue to call him, contended that on a day in December 1981 while working for the appellant on a building site in Sydney, he stepped on the butt end of a nail protruding from concrete, it appears to have been a ramset nail, and drove it through his right foot. The major contest on liability at the trial, apart from questions of negligence and some points upon the construction of the regulation upon which the plaintiff relied, concerned the question whether it was the right foot which the plaintiff had punctured or the left. As I have said, the plaintiff asserted that it was the right, the appellant contended that it was the left. The contest therefore involved the argument by the appellant that the plaintiff had deliberately misrepresented the nature of the injury, at least so far as the affected limb was concerned, since he could scarcely have been mistaken upon the point. There was therefore a very serious conflict between the parties involving what one must regard as an allegation of deceit, lying and fraud on the plaintiffs part; one might say an issue which was most suitable to be determined by a jury. At the trial the plaintiff maintained the contention that he had injured his right foot, but the appellant's first aid officer had noted in the first aid injury book that the plaintiff had sustained a puncture to the left foot and although Mr Smith had no vivid recollection independently of the incident, he was entitled to rely, and so was the appellant, as it did, upon the evidence contained in the written record. More than that, the plaintiff was referred on 18 December, the next day, to a medical centre at Oxford Square where he was examined by a doctor who noted that the injury was to the left foot, which was x-rayed, and by another doctor in the same practice about three or four days later, who also noted that the injured foot was the left and not the right. Hence one has up to this point the plaintiff's own evidence opposed to the evidence of the first aid man, the evidence of the 2 UNREPORTED JUDGMENTS written record and the evidence of two doctors. At that point, however, one can say that the evidentiary position took a marked turn in the plaintiffs favour. On 6 January 1982, that is, a little over two weeks later, Dr Bentivoglio examined the plaintiff and found an abscess on his right foot. Dr Dixon had the plaintiff referred to him by Dr Fox, or at least by those doctors in the medical centre to which the plaintiff had first been sent, and Dr Dixon also found there was an injury to the right foot. Dr Benanzio on 3 March 1982 identified the right foot as the affected limb, as did Dr Bondi on 4 March 1982. In between these examinations Dr Hodoba found, on 21 January 1982, that the plaintiff again presented with injury to the right foot. Dr Hodoba was called at the trial, which commenced in December 1986, and he examined the plaintiff's left foot in the precincts of the court, presumably, and said in evidence that he could see no sign of any scarring on that member. He, if I may borrow the terms of the plaintiff's written submission, was emphatic that if the skin was completely broken at all levels, the left foot would have displayed a scar, assuming an injury in December 1981 of the kind explained to him. That in essence was the evidentiary conflict. There are matters of emphasis and detail which I have omitted but there is one to which I must expressly refer. The statement of claim initially asserted that the injury had taken place on 22 December 1981. The plaintiff had more than once been in great doubt as to date upon which this incident occurred. Whether this was partly a product of his inability to express himself clearly in English or lack of memory after four years or so or both or was attributable to more sinister reasons, the fact is that his evidence upon the point was not of itself compelling. However, he sought and obtained leave to amend the statement of claim to adopt, as it were, 17 December as the date of the injury, this being the date in the injury book and clearly therefore the date upon which the plaintiff sustained the injury which Mr Smith examined. Hence beyond doubt the plaintiff was injured at work on 17 December according to the admission contained in the accident book. Accordingly, one assumes that, since it would be necessary to assign a motive for the plaintiff's deceit, the reason advanced was presumably that the injury he sustained to the left foot, according to the appellant, had healed up with celerity, and he had injured himself by chance in the other foot, the right foot, but not in the course of his employment. But in order to obtain the benefits of which the rapid healing of the work injury had deprived him, he attributed his own injury to his employer's fault. That, I imagine, was the way in which the matter was put. The issue is clearly one which involves the plaintiffs credit to a marked degree. If the jury believed him then that would have put them well on the way to accepting his case since, as I have indicated, there was a good deal of evidence which supported it. If the jury rejected the plaintiff as a witness of truth then it would have been plainly open to them to disbelieve the case he was seeking to make. It may well be, and I have no doubt that counsel for the appellant put this very clearly at the trial, that the appellant's evidence is the fresher evidence. The plaintiff's evidence, apart from his own testimony, must have been open to the criticism that it started at a later date, that is to say, the first medical evidence of an injury to the right foot originated after a span in which the plaintiff could have sustained an injury in his own time. Nevertheless there was evidence on both sides of the case and in my opinion it is impossible to say, as Mr Kenny and Mr URJ CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC (Samuels JA) 3 Deakin for the appellant invite us to do, that the jury's finding in favour of the plaintiff both on breach of statutory duty and in negligence was against the evidence or was perverse. It is, I think, worth reminding ourselves that, to use the words of Scrutton LJ in Place v Searle [1932] 2 KB 497 at 515 - "An enormously strong case is needed before the court of Appeal can say that though there is evidence given by a witness it cannot reasonably be believed by the jury." I add, but without quoting from well known passages, references to Hocking v Bell (1945) 71 CLR 430 at 440 and 499, to Bell v Thompson 34 SR 431 at 436 and 437 and to Jones v Green 73 WN 628. To say that the finding of the jury is against the evidence and the weight of evidence is not at all merely to suggest that there is less evidence or less cogent evidence to support the conclusion at which the jury arrived. It is to say that the jury's finding was unreasonable or, as it may be said, perverse and indicates that the jury could not have understood the task that was put before them. I do not think that the situation here so far as liability is concerned satisfies that test. There remains, however, one further point which requires, I think, separate treatment. It was contended by the appellant that Campbell J failed to direct the jury properly that the plaintiff bore the onus of proving the injury to his right foot on 17 December 1981. Allied to this submission there was one which challenged the form of one of the questions which the learned judge, after discussing the matter with counsel, put to the jury. I might add as a matter of curiosity that, notwithstanding that massed behind, or really in front of, the appellant were the awful squadrons of eminent solicitors and counsel, when the Notice of Appeal came to be drawn, in both the grounds to which I have just referred not only the identity of the foot but the date of the accident was mistaken. In my view there is no substance in the complaint as to the onus of proof. What the submission is getting at is that, because there was this conflict between the feet, as it were, the learned judge should have moulded not only his charge but the questions he asked so as to isolate that dispute and to require the jury to answer questions particularly directed to its nature. Having read the summing-up, it seems clear to me that the learned judge most adequately indicated to the jury the nature of the dispute and charged them beyond any ambiguity of any kind that the plaintiff complained of an injury to the right foot and that the medical consequences with which he presented at the trial were in his submission caused by that injury and wholly attributable to it. Moreover, it was his case, of course, that the injury to the right foot was occasioned by the appellant's negligence or statutory duty or both. The point concerning the question was taken by counsel for the defendant who distinctly asked the judge to put a specific question about the right foot although, oddly enough, the date appears wrong where counsel first put the request in the running in the transcript. However, it can be readily assumed that all were aware of what the date was that counsel had in mind. I do not think that it was at all necessary in order that the jury should understand the case for a question in the terms requested by counsel to have been put. I do not think the failure to do so was in any sense a misdirection. In any case, I am quite unable to see that there was any miscarriage or that, treating it as a misdirection, the condition set out in PtS1 r16 has been satisfied. 4 UNREPORTED JUDGMENTS The original grounds of appeal were ten in number although the tenth looked forward to other grounds when the summing-up became available and is not really itself a ground of appeal. Five, six and seven were abandoned when the appellant's written submissions were framed. The first four took the ground that the verdict was unreasonable and with that I have dealt. The last two arguments were contained in the grounds of appeal eight and nine. The appellant sought leave to amend the notice of appeal by adding further grounds numbered eleven to eighteen both inclusive. A notice of motion for that purpose came before us last Friday. We struck out grounds of appeal seventeen and eighteen as not being proper grounds and grounds five, six and seven from the original notice because they were not being pressed and we stood over the balance of the notice of motion to the hearing of the appeal today. We have heard further argument in support of the amendment, which is opposed. We indicated to counsel that we would reject the amendment on the ground that we were unable to see, and counsel was unable to satisfy us, that in respect of any of the grounds left the point was taken at the trial. They are all grounds which rely upon alleged misdirections or failure to direct. In such cases, as courts have said for many years, it is essential for counsel to formulate with precision the direction he or she requires and to have the request noted. The reason is that in this way the evils of a new trial may be avoided since, if the point is clearly put to the judge, the judge may well deal with the matter by acceding to the request and amending his or her charge to the jury. Ordinarily, unless justice demands a different course, an appellate court will decline to allow points of this kind to be argued if they were not taken below. For those reasons we decided we would reject the application to amend. I will return to the first four grounds of appeal in order to deal with the final point which is this: an actuary was called - a pleasing return to past days - and he gave evidence of two figures. One was the net loss to the date of trial, which was $96,925, and the other was the capital value discounted at 3 per cent of the future loss based upon certain assumptions made, and that figure was $415,960. The sum of these two figures is $512,885 and that was the amount at which the jury brought in their assessment of damages. The appellant contends that this demonstrates that the jury misconducted themselves, or misdirected themselves might be kinder, in the calculation of damages and that there was therefore a miscarriage of justice which requires the ordering of a new trial. Reference was made to Coates v Carter (1951) 82 CLR 537 at 542. It seems to me that one cannot resist the conclusion that the jury's assessment was the sum of the two components I have mentioned which they merely added together. Plainly that is the figure they returned as their assessment of damages. The question is, are we able to say how they came to do it? There are, I think, two possibilities. The first is that the jury completely overlooked their duty to assess damages for pain and suffering, loss of amenities and the like, although they were quite properly directed upon these heads of damage by the learned judge and no suggestion to the contrary is made. If they did that, then in my opinion they would have misconceived and failed to carry out their function. The second possibility is that, having remembered that the actuary agreed that his figures involved no discount for the vicissitudes of life or for mortality, they assessed a figure for pain and suffering and so forth and then considered, at least approximately, what the discount should be which the judge had told them they should apply to the actuary's figures, concluded that that discount was about URJ CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC (Samuels JA) 5 equal to the assessment of pain and suffering, set off one figure against the other and decided that all they needed do was to return as their verdict the amount of $512,000 odd. That seems to me a very sophisticated approach and I have great difficulty, I must say, in persuading myself that that is what the jury did. For my own part therefore I am left in the position that I cannot distinguish between a possible course which would clearly have involved error on the jury's part and a possible course which might not, although I am far from confident about that last proposition. On the other hand, it has not been contended that the amount of $512,885 is unreasonable as the total figure proper to cover all the heads of damages which it was necessary to consider in the case. I have therefore been very tempted to conclude that, since a new trial is a catastrophe, it would be fair to both sides to let the assessment stand on the footing that it is not an unreasonable amount of compensation. However, I think that once I must conclude, as I do, that there is a real possibility that the jury misconceived their function and failed to carry out their duty, there must have been a miscarriage of justice. If there is a miscarriage of justice then, except in very special cases such as Burchett v Kane [1980] 2 NSWLR 266 (see in particular at 273-4), a new trial, however deplorable, must follow. Reference might also be made upon this point to cases of a somewhat different kind, but which are nonetheless relevant in point of principle, such as Balenzuela v De Gail & Anor (1958-9) 101 CLR 226 and Dairy Farmers Co-Operative Milk Co Limited v Acquilina (1963) 109 CLR 458. In my opinion therefore the appellant has shown that there was a miscarriage of justice, and the final question is whether the new trial, which in my opinion must be ordered, should be a general new trial on both grounds or should be a new trial limited to damages. Mr Kenny has pressed us with the decision in Pateman v Higgin (1957) 97 CLR 521 at 527 and more recently that in Quinn v Rocla Concrete Pipes Limited (1986) 6 NSWLR 586, where, at p 602, McHugh JA has dealt with this question. After referring to Pateman he said: "A new trial on one issue is the exception. When the issues of liability and damages are completely separate as they frequently are in personal injury cases, it is often proper to order a new trial limited to damages. Indeed new trials in personal injury actions limited to damages are now commonplace." But he went on to remind us that the fundamental rule was that a new trial should "usually be on all issues." I would respectfully adopt that approach, bearing in mind the present case is one of personal injury. My experience is the same as my brother's. I know that it is indeed commonplace to order new trials in this class of litigation limited to damages. In the particular case, although the plaintiff's credit was put in issue, the jury found for him both on the issue of negligence and that of breach of statutory duty. Hence the issue of contributory negligence is not of relevance as it would have been had there been no statutory count. For those reasons I think, to adopt the words of Kitto J in Pateman at p 527 that more injustice would be occasioned by setting the matter at large again. After all, it is six and a half years since the accident which the jury found occurred and I do not think it would be right to return all the players to square one at this stage. Accordingly in my opinion the judgment below should be set aside and a new trial ordered limited to damages. 6 UNREPORTED JUDGMENTS The order for costs below, however, should stand and the plaintiff/respondent must pay the appellant's costs of this appeal. Mahoney JA I agree with what has been said by Samuels JA. I shall add certain observations of my own because of the significance of what is involved in relation to jury trials. As his Honour has indicated, there were three main issues argued: whether the judge went wrong in the directions given in relation to liability; whether the judgment should be set aside for what the jury did in assessing damages; and whether there should be a general new trial. As to the first of these I do not desire to add to what was said by Samuels JA except to say that in my opinion, even if the substantial arguments for the appellant were accepted, I do not think it is a matter which, within s551 r16, would warrant a new trial. As to the second matter, more difficult considerations arise. The court knows, and is entitled to know, three things: the amount of the past and future economic loss claimed by the plaintiff; the amount of the verdict; and the fact that other matters of damage were claimed by the plaintiff and proved by him. The amount of the past and future economic loss was proved in the conventional way by the Actuary and the total of these two was $512,885. I say this in the sense that the Actuary gave the ordinary assessment of these amounts, it being understood that what he did was to make an assessment in the ordinary way, and that his assessment was subject to discounting for vicissitudes and, as it has been described, the mortality factor. The jury gave an amount which is exactly the total of the two amounts put forward for past and future economic loss in this way. As I have said, it is clear that other matters of damage were to be assessed by the jury. These included general damages and amounts for past and future out of pocket expenses and the like. The jury was told that it should, in approaching the matters of economic loss, apply the appropriate discounts with which the court is familiar, and which were explained to it. From this it follows in my opinion that the jury awarded the plaintiff simply the sum of the past and future economic loss. I say that because the fact that the verdict of $512,885 is exactly the sum of the two amounts put forward for this purpose is too great a coincidence to permit of any other conclusion. If it were clear that what the jury had done was that and nothing else then, of course, the verdict would have to be set aside. It would be obvious that the jury had not done what it was required to do and that there had been a serious miscarriage. However, it was submitted that what the jury did may be capable of another explanation. The other explanation suggested has been detailed by Samuels JA and I do not repeat the detail of it. It is sufficient to say that on this explanation the jury said in effect, "The amount by which the past and future economic loss is to be discounted as suggested is the same as the sum of the general damages, past and future out of pocket expenses and the other matters on the other side of the equation. Therefore we will give him simply $512,885." If this had been what the jury had done then in my opinion the approach that they had adopted would have been wrong. It would have been an even greater coincidence that the sum of these various amounts would equal precisely the amount in question. If it be put, as I think in substance it was, that the jury said "The total of general damages and past and future out of pocket expenses and the URJ CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC (McHugh JA) 7 like is more or less the amount of the discount of the past and future economic loss, then therefore we need not worry about the detail of calculation; we will set the one off against the other", then in my opinion the jury did not do what they were required to do. The only explanation, that is, the only one that has been but forward as explaining what the jury did, is one which itself appears to me to involve the disclosure of misconduct on the part of the jury. It involves the disclosure that the jury did not do what the law required it to do, namely, assess the various heads of damage. I do not, in saying this, suggest that a jury must do what a judge now must do, namely find individual heads of damages and itemise and accumulate the amount into a single verdict. Juries may, of course, assess damages in other ways and may approach the assessment of damages by way of approximation. The reason for my referring to this matter is that if the explanation for the sum of $512,885 be what I have taken it to be, then what the jury did was not to assess damages generally in this way, but to undertake an itemisation of them to an extent, but only to an extent, which left the performance of their duty incomplete. For those reasons I am of the opinion that whilst the court may not, as has been put, go into the jury room to find what the jury did, the court may, from what appears from the jury's verdict and what it may legitimately know, conclude that the jury has not done what it should do. As to whether this should lead to a general retrial or a retrial limited only to damages, I would add to what Samuels JA has said only this. I think that the issues involved in the question of liability and those involved in the question of damages are in the relevant sense distinct and separate in this case. Liability on the statutory count is clear. It was on this that the judgment was given. I do not mean by this that there are not arguable questions, but looking at the matter broadly, there is a clear case on the statutory count if what the plaintiff says is accepted. The question of credit apart, the issues in contest in respect of liability and of damages do not significantly overlap. That being so, I think that this is an appropriate case, prima facie, for a new trial limited to damages. The mere fact that the credit of the plaintiff would be in issue on both of these does not, in the circumstances of this case, warrant that the costs of a general new trial should be incurred. I agree with what has been said by Samuels JA as to the exercise of discretion in this case. I agree with the orders proposed. McHugh JA I also agree with the orders proposed by Samuels JA. On the issue ofliability I do not wish to add anything to what his Honour has said but on the issue of damages I would approach the matter slightly differently. I would conclude on the balance of probabilities that the jury's verdict of $512,885 indicates that the components of the verdict were the amount of the loss of wages to the date of the trial and the amount of the future loss of wages on the three per cent tables to age sixty five without any discount. If that conclusion is correct, as I think it is, it means that the jury has not only failed to make any discount for the vicissitudes of life, but has failed to award any amount of general damages for pain and suffering or for out of pocket expenses or for future medical expenses. Treach the conclusion that the verdict was made up in the way I have suggested because I think that it would be too much of a coincidence to think that the jury arrived at the figure of $512,885 after considering all the relevant heads of damage. Of course, it is possible that by an extraordinary coincidence the jury did 8 UNREPORTED JUDGMENTS reach this figure after considering all the relevant heads of damage and after making all the appropriate discounts. However, the odds against this occurring are so great that I do not think that it is reasonable to conclude that the jury did assess damages according to the directions which the learned trial judge gave. If the jury did not consider all the heads of damage, it would be guilty of an error entitling the verdict to be set aside (see Coates v Carter (1951) 82 CLR 537). Authority in this Court now establishes that it is permissible to set aside a verdict if matters external to the jury's discussion indicates on the probabilities that the jury has misdirected itself (see Schuldiner v Power Court of Appeal 19 March 1981, unreported; Quinn v Bradford Kendall Foundries Pty Limited (1986) 7 NSWLR 428). The principle is not confined, as Mr Holt in his argument suggested, to cases where the external material consists of the jury's answers to individual questions put to them. The principle is applicable in any situation where matters external to the jury's discussion, whether they are answers to questions, agreed facts or matters put to them in the summing up, indicate that on the probabilities the jury misdirected itself. Accordingly, I have reached the conclusion in this case that the jury did misdirect itself on the issue of damages and that the verdict cannot stand. I agree with Samuels JA that in the circumstances of this case the new trial should be limited to the issue of damages only. SAMUELS JA: The orders of the court therefore are: the appeal is allowed. The judgment below is set aside, save for the order for costs. A new trial limited to damages is ordered. The respondent must pay the appellant's costs of the appeal. The motion filed by the appellant as claimant on 16 June 1988 is dismissed. We order the appellant to pay the respondent's costs of and incident to the motion, including any costs thrown away by reason of that application. Counsel for the Appellant: Mr P J Kenny QC/Mr P Deakin Counsel for the Respondent: Mr W J Holt QC/Mr V Jurisich Solicitors for the Appellant: Ebsworth & Ebsworth Solicitors for the Respondent: Radin & Associates