KANAT v NONFERRAL (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS and PRIESTLEY and MEAGHER JJA 1 March 1989, 1 March 1989 [1989] NSWCA 115 DAMAGES — quantum — jury — no question of principle. ORDER Appeal dismissed with costs. Samuels JA This is an appeal from the verdict of a jury in a trial which commenced on 9 September 1987 before Finlay J. The proceedings arose out of an accident which befell the plaintiff, the present appellant, at work on 24 March 1981. In that accident the plaintiff fell from a platform about five feet above ground in consequence of an explosion and sustained burns to his back and to an ear and injuries to the low back and neck. There had been an earlier trial and an appeal to this court, which ordered a new trial, and the present appeal is from the jury's assessment of damages in that new trial and is again on the ground that the award was inadequate. The jury assessed the damages in the sum of $120,000 from which certain deductions were required to be and were made but for our purposes we must consider the gross figure. The grounds of appeal contend that the assessment was manifestly inadequate, perverse and against the evidence and the weight of evidence. There is not I think a great deal of difference in point of principle between the requirements which must be satisfied to make good each of those three grounds, if they are separately regarded. They should, of course, be examined with reference to the point of the case, which is the assessment of damages. In Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Gibbs J, as he then was, with whom other members of the court agreed, said at 369 that in order to succeed in an appeal from a jury on the ground that the assessment of damages was inadequate, it was necessary for the appellate court to be satisfied that they were so inadequate that no jury could reasonably have awarded them, or were out of all proportion to the circumstances of the case. To say that a jury's verdict is perverse is again to say that it is unreasonable; that it is a finding at which no reasonable jury properly instructed could have arrived. Those therefore are the issues for us and we should make it clear that our task is not to re-assess the damages, unless we find that the jury fell into one of the errors asserted, but to say whether the appellant has satisfied these very stringent requirements. We can all appreciate that the appellant labours under some frustration, having been through two jury trials without recovering a sum which he thinks reasonable to compensate him for injuries which he undoubtedly received. We have had the benefit of very careful submissions from Mr MclIlwaine and Mr Diamond but notwithstanding that I do not feel, and I think in this I can speak for all, that the appeal has been made good. I do not think it necessary to go through the evidence in detail. It is set out at length in the meticulous summing up of the learned trial judge. I have summarised the nature of the injuries and at the trial the appellant presented as someone who by reason of a combination of deafness superimposed upon some existing deafness, vertigo or a pre-disposition to dizziness or unsteadiness when 2 UNREPORTED JUDGMENTS bending, the effects of keloid scarring, that is to say, discomfort when in hot or humid conditions, and a disc protrusion of the low back together with headaches, was entirely incapacitated for work. That had two consequences, or so the argument ran; namely, (1) he was entitled to recover the whole of his accrued loss of earnings from the accident to date and (2) he was entitled to be compensated for the future on the basis of a total extinction of earning capacity. There was evidence which supported most of these complaints, although the doctors who treated his ear and the dizziness expressed the view that he was fit for work from the point of view of their speciality save in hot or humid conditions, and save in circumstances of noise necessitating the use of ear muffs which he was unable to tolerate. There was orthopaedic evidence which concluded that by reason of the disc protrusion he was not fit for work involving heavy lifting or much bending. On the other hand evidence was led on behalf of the defendant/respondent that although he had some back pain, that and any disc protrusion was not causally linked to the accident but was the consequence of his permitting himself to call into a condition of extreme obesity and loss of muscle tone. The battle lines therefore were clearly drawn in a fairly conventional way. The learned judge charged the jury, without any objection from either side, along those lines pointing out to them, for example, that whereas the plaintiff claimed to be totally incapacitated and thus sought the compensation I have summarised, the defendant on the other hand had put to them that all that he could recover was one-third, at the most, of his accrued loss of earnings and a loss of earning capacity for one or two years following the trial. It was a case in which the appellant's credit must have loomed very large. The appellant said he could do no work at all, not even light work; that ran counter to his own medical evidence. He had not sought any work. He was of Turkish origin and spoke very little English and was illiterate in that language. He had had only three years; schooling. It does not require much imagination to appreciate that the loss of his only industrial asset, that is, his physical capacity, would have been a considerable loss indeed. Further, it is necessary of course to make allowance for the fact that he gave evidence through an interpreter who may not have caught the fine shades of meaning and may have conferred on what the appellant said an impression which he had not meant to convey. However, while we retain civil trial by jury these are matters which a jury drawn from the community are supposed to be in a position to assess. This was essentially a case in which the jury were able to weigh up the extent to which the plaintiff should be accepted. There was a head-on conflict between the orthopaedic specialists in particular and it was put to us that the consultant who gave evidence for the defendant at the trial offered opinions so exaggerated that any jury which took heed of them would be acting perversely. The opinions were expressed with a great deal of vigour it is true, and certainly took a very stringent view of the case and the way in which the human frame and spirit if properly motivated can triumph over orthopaedic injuries of the greatest severity. Nonetheless that unfashionable viewpoint can scarcely be regarded as leading to perversity on the part of any tribunal of fact which accepted it. If one makes some speculations about how the jury approached the matter it seems to me that the figures come out approximately in this way. The agreed out-of-pocket expenses amount to $13,660. If one takes about one-third of the accrued loss of earnings to trial that produces $27,000; the total of those two figures is something over $40,000, say $41,000. That therefore leaves $79,000 to URJ KANAT v NONFERRAL (NSW) PTY LTD (Priestley JA) 3 be allocated between pain and suffering and so forth and diminution of earning capacity. Mr McIlwaine suggested that the lowest figure which reasonably could be permitted for the first of these two further heads was $35,000. I am content for the purposes of final conjecture to accept that. It would leave $44,000 for what is generally called future economic loss. That I think cannot be regarded as unreasonable or wholly disproportionate to the circumstances of the case. These figures would argue that the jury took an unfavourable view of the appellant but that was open to them. It is a difficult matter I think to overturn a jury's assessment of damages where there is no question of misdirection or any muddle between the judge and jury, or between counsel, the judge and the jury, and nothing of that kind has been raised. That being so, despite the persuasive arguments that have been put to us, I do not consider that the requirements upon which the appeal must be decided have been satisfied and in my judgment it should be dismissed with costs. Priestley JA I agree with the reasons given by Samuels JA. I wish to add something for my own part, however, because of some observations I made in the course of the argument today which, upon reflection, I feel may have been somewhat misleading. I can state the point that was concerning me by reference to an argument that was put by Mr Kenny of Queen's Counsel for the defendant to the jury in the course of his final address at trial. In regard to the plaintiff's claim for economic loss, both between the date of the injury and the trial and after the trial, Mr Kenny argued that the jury should act on the basis that the plaintiff was fit for work in respect of two-thirds of the period between injury and trial and consequently the jury should consider including in his damages for loss of wages only a third or, at most, a half of the amount which it was agreed he would have earned had he been working full time between accident and trial. Mr McIlwaine on the other hand argued to the jury that they should include in the plaintiff's award of damages the whole of the earnings between accident and trial and calculate the economic loss for the period after trial on the basis that the plaintiff would not be able to work further. In his summing-up the trial judge repeated these arguments of counsel to the jury indicating that they might find figures or a figure for economic loss somewhere between the two extremes which counsel had put. In the course of his submissions I asked Mr McIlwaine how it could be open to the plaintiff to ask this Court to find as perverse or unreasonable something which the jury may well have done on the basis of what had been left to them by the trial judge without objection. I suspect I may have put the argument to him in too extreme a form along the lines: How can you ask this Court to condemn as perverse something which the trial judge in effect told the jury was open to them to find? But it seems to me that there is a real distinction between two statements to the jury which sound very much alike. On the one hand a judge might say to a jury: You may find any figure including and between - I will use again the same example I have been taking - a third of the plaintiff's loss between injury and trial and no more or the whole of the plaintiffs loss between injury and trial and full loss thereafter. Alternatively, the judge may say: Counsel for the defendant says you may find etcetera and counsel for the plaintiff says you may find etcetera and you must decide what the reasonable amount to award is. It may be that you think that that amount will be between the two figures advanced by the two opposing counsel. 4 UNREPORTED JUDGMENTS The questions I was asking Mr McIlwaine rather assumed that the judge had instructed the jury along the lines of the first formulation of the two I have just outlined. It seems to me, however, that substantially the judge was instructing the jury along the lines of the second formulation. The second formulation seems to me to be the more appropriate one and also to solve the problem that was concerning me during the course of argument today. When the jury is instructed along those lines the judge is indicating the extremes of the area in which the jury has been asked to operate by counsel, he is reminding them of the figures and the relevant facts concerning those extremes and, more importantly, what lies between the extremes. He is emphasising that the jury's duty is to decide what it thinks is reasonable on the facts and having heard the addresses of counsel and the judge's own summing-up. So long as it is made plain, and in my understanding this is almost invariably done in a judge's instructions to the jury in cases of this kind, that the jury's primary and paramount duty is to arrive at a reasonable amount in the light of the arguments and the circumstances, then I see no particular difficulty in it later being submitted to a Court of Appeal that the jury was unreasonable or perverse in arriving at a figure which may possibly represent one of the extreme figures which were mentioned to the jury in the course of the judge's instructions. The question for the appellate court in those circumstances becomes whether on all the material before the Court it can be said that the jury's verdict was so out of line with the Court's view of reasonableness in the circumstances as to be criticised as perverse or unreasonable. In the present case I have already said that I agree with what Samuels JA has said leading to the conclusion that Mr MclIlwaine's submissions did not show that what the jury did could be criticised as unreasonable or perverse. In the appeal from the verdict returned at the first trial the Court was of the opinion that evidence given by the specialist called in the defendant's case was not such as to furnish any reasonable basis for the conclusion that the plaintiff had been fit for work between accident and trial. In that trial there had been only the one specialist giving evidence on that particular matter in the defendant's case. The plaintiff himself, of course, had given evidence and it was open to the jury in that earlier case to have severely discounted the plaintiff's evidence but the reliance on specialist evidence which was, on analysis, found not to support or be capable of supporting the view for which it was put forward, was the most material factor in enabling the Court to conclude that on the material which the jury should reasonably have taken into account in that trial the result they arrived at trespassed into the area of the unreasonable and the perverse. In the second trial a different specialist gave evidence and Mr McIlwaine sought to have the Court come to the same conclusion about his evidence as had occurred in the earlier appeal. The evidence given by Dr Sturrock does not appear to me to have been open to the same criticism as that of the specialist in the earlier trial. When his evidence was read to us here today it plainly appeared that the doctor, at least on this occasion, was given to a good deal of hyperbole and exaggeration in his answers to questions but it seems to me that there was a core of sound sense in what he was saying and a core of sound sense which was open to the jury on this occasion to take into account in their considering of the whole of the medical evidence. I agree that the appeal should be dismissed with costs. Counsel for the Appellant: RS McIlwaine and S Diamond URJ KANAT v NONFERRAL (NSW) PTY LTD (Priestley JA) Solicitors for the Appellant: Henry Davis York Counsel for the Respondent: PJ Kenny QC and C Loveday Solicitors for the Respondent: Hunt and Hunt