GEORGE L GRAY v RODNEY JAMES PARSONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY (2), MEAGHER (3) JJA, AND HOPE (1) AJA 27 October 1989, 27 October 1989 [1989] NSWCA 90 Practice and procedure — defendant and his legal representatives absent when trial called on at country circuit — trial delayed until later in the day — trial commenced in absence of defendant or representatives — counsel for defendant present next morning applications to discharge jury and to have witnesses who had been excused recalled — applications refused — HELD no case for interfering with exercise of trial judge's discretion. Damages — quantum — no question of principle — appeal dismissed. Appeal dismissed with costs. Hope AJA This is an appeal from a judgment entered by Mr Justice Maell following a trialbefore his Honour and a jury in which the plaintiff sued for damages in respect of injuries he received in an accident on 3 December 1986. It is not necessary to describe the circumstances of the accident for there is no issue as to liability. As a result, the plaintiff suffered a variety of injuries, some more serious than others, the most serious and the one which has had the most lasting effect being a severe crush injury to his left knee. The plaintiff was born in September 1956 and was thirty-one years of age at the date of the trial. He was a person who had very little school training. He was not trained and had no experience in any type of sedentary occupation. His working life had been limited to doing work of a labouring and other physical kind and as well he had engaged with some degree of success in various forms of sport. As a result of the injury the plaintiff suffered a great deal of pain and underwent six or seven operations upon his knee to try to improve its condition and also to remove or lighten the pain and inconvenience which it caused him. The only medical evidence before the jury was that of Dr Ashwell who gave this evidence finally about his condition: "Q. Doctor, in your experience having been his treating surgeon, what would you describe as the nature and extent of the injury that he suffered to his knee? A. To his left knee? Q. Yes. A. I thought he suffered a severe crush injury to his left knee and rupture of the medial ligament and posterior cruciate ligament and also damage to the joint surface of the knee joint. He has ongoing problems with his left knee, partly due to the instability and partly due to the cartilage surface damage. Q. That is the arthritis? A. That is the arthritis, yes. Q. Will he ever get better, doctor, in your view? A. I don't think he will improve at all. Q. Doctor, he complains I would like you to assume of difficulty walking for long distances, walking on rough or uneven ground, using steps, stairs, ladders and the like, bending, squatting, carrying and matters of that nature? A. Yes. Q.In your view, in the light of what you have seen, are those complaints consistent with his condition? A. Yes. Q. Doctor, with the damage to the ligaments that you have described and the ongoing arthritis is he likely to get better, worse, or remain the same? A. He is likely to get progressively worse with 2 UNREPORTED JUDGMENTS time. Q. Doctor, is there any work of a labouring nature which you would regard him as fit for? A. No, I think he could only cope with light work. Q. Of a sedentary nature? A. Yes." The result was that the plaintiff had had a very painful experience for quite a few years with his left knee which was left in the condition which, even if it did not get worse, would limit his activities considerably and, in the opinion of Dr Ashwell, was likely to get progressively worse with time. The jury returned a verdict in the sum of $340,500 and, after adjustment had been made for workers' compensation payments interest and contributory negligence, judgment was entered by his Honour for the plaintiff in the sum of $286,805. The principal ground of appeal relied upon for the defendant concerns the circumstances in which the trial was held. The trial was listed in the then current sittings at Lismore, the first week of which was devoted to civil cases, the subsequent weeks being set aside for criminal cases. This case was listed towards the end of the civil cases. It was first listed for hearing on Tuesday 21 June 1988. It was not reached on that day and there was a part heard case which might have gone the whole of the week. There were some five cases between the part heard case and this case. Counsel and the solicitor for the defendant were present at the court on the Tuesday and were in Lismore on the Wednesday morning. Counsel for the plaintiff was present at all times. The defendant's legal advisers, considering there was little likelihood of the case coming on for hearing, returned to Sydney on Wednesday. As is not unusual in country circuits the list collapsed and the case came on for hearing at ten o'clock on the morning of Thursday 23 June. Counsel for the plaintiff was there ready to proceed but there was no appearance for the defendant. Mr Wheelahan, counsel for the plaintiff, suggested to his Honour that the matter be stood down to 11.45 am for the purpose of giving the defendant an opportunity to get counsel before the court. His Honour directed that the matter would start peremptorily at two o'clock that afternoon. Attempts were then made to get in touch with the defendant's legal representatives. These attempts were successful and the defendant's solicitor became aware on Thursday that the hearing of the case would start at two o'clock. He attempted to get counsel to the court, going as far as arranging for an aircraft to take him to Lismore, but the plane was unable to leave Sydney, and the arrangement fell through. No arrangement had been made by the defendant's solicitor for anybody in Lismore to keep him in touch with the progress of the list or to give him some timely warning that the case might, or would, come on. When the solicitor discovered on Thursday that the case would be heard at two o'clock, although he made attempts to get counsel up from Sydney, no attempt was made to get in touch with any legal practitioner in Lismore to make representations or to appear in the case when it did come on for hearing. The case started at two o'clock on the Thursday afternoon and on that afternoon Mr NJ Saville and Mr Hughes were among the witnesses called to give evidence in the plaintiffs case. Mr Saville was a rehabilitation counsellor employed by the Department of Community Services and Health, and the place where he carried out his activities was primarily Lismore. He was accordingly able to give evidence about the employment situation in Lismore, about the position of the plaintiff, and about his prospects of rehabilitation and other matters concerning the plaintiff's employment. At the end of his evidence he URJ GEORGE L GRAY v RODNEY JAMES PARSONS (Hope AJA) 3 retired and he was excused and left. A similar situation existed in respect of Mr CJ Hughes who, having given evidence, retired and was excused. Counsel for the defendant turned up in court at ten o'clock on the morning of Friday 24 June. He then made an application for the discharge of the jury on two grounds, first on the ground that certain evidence given by the plaintiff was not consistent with particulars that had been given and second on the ground that evidence had been given by Mr Hughes and Mr Saville and he had not been able to cross-examine. His Honour declined to discharge the jury. It should be said that when the case started at two o'clock on Thursday afternoon his Honour was told that attempts had been made by the defendant to get legal representation at Lismore that afternoon and that they had failed, but that counsel would be present in court on the next day. His Honour having declined to grant a discharge of the jury, counsel for the defendant then asked leave to have the plaintiff, Mr Saville and Mr Hughes recalled for cross-examination. Mr Kelleher had earlier told his Honour that at the appropriate time he would make such an application but he conceded the problem in respect of Mr Saville and Mr Hughes not being available. The application was made and considered by his Honour and his Honour, in the exercise of his discretion, whilst allowing the defendant to cross-examine the plaintiff who was still present at the court, declined to order that Mr Saville and Mr Hughes be recalled for cross-examination or that the defendant otherwise have an opportunity to cross-examine them. In the appeal it has been put for the defendant that the questions relating to the discharge of the jury and the recall of Mr Saville and Mr Hughes for cross-examination should be considered together, and it has been submitted that in the light of the importance of the evidence of Mr Saville to the plaintiff's case, and the importance of the defendant having an opportunity to cross-examine Mr Saville on his evidence, his Honour was in error in not granting the orders which were sought. Perhaps I should interpolate that if the case was not disposed of in the time allocated to civil cases at the Lismore sittings it would not have been heard until the next sittings in Lismore which were to be held in the July of the following year. I think it is correct to say that the defendant suffered prejudice in not being able to cross-examine Mr Saville, but that circumstance does not necessarily lead to a conclusion that his Honour was in error in the exercise of his discretion. His Honour, on the afternoon of Thursday 23 June, had exercised his discretion to excuse Mr Saville and Mr Hughes from further attendance. That exercise of discretion has not been challenged. What is challenged is the refusal by his Honour to exercise his discretion to require those witnesses, particularly Mr Saville, to be recalled in order to enable defendant's counsel to cross-examine them. In my opinion no ground has been made out to justify this Court interfering with the discretion which his Honour exercised, either in relation to the discharge of the jury or in relation to the recalling of the witnesses for cross-examination, or in relation to the combination of these discretionary decisions. The matters were essentially ones requiring the exercise of his Honour's discretion in the light of the material which had been placed before him. Each party put before his Honour the matters that were relevant, and his Honour declined to discharge the jury or to require the witnesses to be recalled for cross-examination. In my opinion no reviewable error has been shown in the way in which his Honour exercised his discretion and this ground of appeal must fail. 4 UNREPORTED JUDGMENTS The defendant has also shortly submitted that the amount of the verdict of the jury was excessive. It is submitted that an analysis of the amount of the verdict would show that the jury awarded the plaintiff the full amount of his claim in respect to future economic loss without taking into account adequately, or at all, the plaintiff's residual working capacity. The plaintiff was essentially a labourer or a person who engaged in physical work and he had no training, expertise or experience in work of other kinds. It may very well be even if he could have had training which would have enabled him to participate in work of that kind, whatever work he could have done would be of a limited character. According to Dr Ashwell it would be only light work of a nature which was sedentary subject to a qualification that he would have to be able to move around. However, it is one thing to have some residual capacity, it is another thing to get a job, and the evidence of Mr Saville made it quite plain the plaintiff would have very great difficulty in getting any work at all in Lismore or in the surrounding areas. For the defendant it has been submitted that his Honour was in error in directing the jury that when it came to such things as the likelihood of future employment the jury was entitled to use its own knowledge of the district and that the law did not require the respondent to uproot himself and go elsewhere. In my opinion it is not open to the defendant to raise any misdirection by the trial judge as a ground of appeal. No point was taken at the trial in respect of any matter contained in the learned trial judge's summing-up and, in my opinion, there is no occasion to interfere with the verdict by reason of that particular direction. It thus appears that on the evidence the jury might form a view that whatever limited residual working capacity the plaintiff might have his chances of obtaining employment were very small indeed. The plaintiff made a claim in respect of future economic loss which, applying the tables to the weekly loss, would have amounted to $283,000. The verdict was, as I have said, $340,500. That verdict included past economic loss amounting to $20,736 and hospital, medical and like expenses amounting to $18,881 totalling $39,517. Thus there was something in the order of $300,000 left to be attributed to future economic loss and general damages. It has been submitted for the defendant that the sum of $75,000 should be accepted as the amount awarded by the jury in respect of general damages. That figure is selected because it was the amount agreed upon by counsel for the parties, after the return of the verdict, as the figure on which his Honour could work out the amount of interest to be awarded. If one adopted that course there would be something like $15,000 to $16,000 taken off the amount claimed by the plaintiff in respect of future economic loss. That figure is arrived at after having first deducted the usual amount of fifteen per cent for contingencies. However, there is no reason to assume that $75,000 was the highest figure that the jury might reasonably have awarded in respect of general damages. I will not review the details of the matters included in the plaintiff's claim but, in my opinion, the jury could have attributed a higher sum than $75,000 for general damages. In the circumstances, and having regard to the evidence which would have allowed the jury to conclude that even though the plaintiff had a limited residual working capacity he was unlikely to obtain employment, there is no basis for setting aside the verdict on the ground it was excessive. Accordingly, in my opinion, neither ground of appeal succeeds and the appeal should be dismissed with costs. URJ GEORGE L GRAY v RODNEY JAMES PARSONS (Meagher JA) Priestley JA I agree. Meagher JA I agree. 5 The order of the Court is that the appeal is dismissed with costs. Counsel for Appellant: GT Miller QC (K Kelleher) Solicitors for Appellant: Michell Sillar and Brown 10 Counsel for Respondent: D Wheelahan QC (D Flaherty) Solicitors for Respondent: Grahams (of Lismore)