INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, MAHONEY and HANDLEY JJA 13-14 March 1990, 23 March 1990 [1990] NSWCA 97 JURY — directions to — obligations of trial judge in action against employer for negligence — evidence of medical witness — entitlement of jury to Act on evidence entitlement of jury to accept or reject parts of evidence — redirection sought and given by trial judge — adequacy and accuracy of redirection — held: (1) A jury is not bound to accept or reject the whole of the evidence of a witness but may accept some parts and reject others. Herbert v Benson (1944) 44 SR (NSW) 382 applied; (2) The trial judge's redirections were not shown to have been in error. Schulmann v Peters (1961) ALR 209, 213 and Manning v Bernard Managing Pty Ltd (1960) 101 CLR 345, 351 referred to; (3) Appeal (on the ground of misdirection) dismissed. APPEAL — miscarriage — appeal from jury verdict — proper approach to — jury awards 51 year old Yugoslav woman $350,000 for injuries suffered from repetitive strain to her arms — component of $95,000 for general damages — whether verdict so high as to be unreasonable — Held: It was — verdict set aside as unreasonable — new trial ordered — Australian Iron and Steel Limited v Greenwood (1962) 107 CLR 308, 311 and Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369 applied. Kirby ACJ I agree with the judgment of Handley JA. Mahoney JA I agree with the judgment of Handley JA. The principles upon which an appellate court exercising the power which this Court exercises: cf Precision Plastics Pty Limited v Demir 132 CLR 362 at 369-70; have not been in dispute. If the present judgment had been a judgment of a judge, it is clear that it would be set aside. But, as Handley JA has indicated, it is not so clear that, being the verdict of a jury, the court should intervene. An important feature of this case is, in my opinion, that the amount awarded for general damages can be isolated. The parties are agreed, and the argument on this point has proceeded upon the basis, that the award for general damages was no less than $95,603.70. And the question posed to this Court has been whether such an award for general damages can and should be set aside. The fact that, if it were the judgment of a judge, it would be set aside does not, of course, conclude that question. For reasons such as those referred to by Windeyer J in Australian Iron and Steel Limited v Greenwood 107 CLR 308 at 323 et seq, the range of verdicts given by a jury are "expected to differ more widely than opinions of judges do because jurymen have genel-ally no comparable accumulation of experience": at 324. And what an appellate court, on a rehearing, may do differs from what it may do in the case of a jury trial. There is, or at least may be, another factor to be taken into account. If and insofar as it is proper for a trial judge, in assessing damages, to have regard to the need for some consistency in the "general run of assessments": cf Australian Iron and Steel Limited v Greenwood at 323-5; that may lead to the verdicts of judges being higher or lower than otherwise they might be. And the verdicts of juries, 2 UNREPORTED JUDGMENTS insofar as they fall outside a judge's range, may constitute a corrective or at least a check from time to time upon the general run of judgments. If the verdict of a jury falls outside the conventional judicial range, it may be because the social conscience of the reasonable man has a broader range. And this, of course, is a reason why a jury's verdict should stand. Notwithstanding such matters, I agree that in this case the verdict can and should be set aside. As I have said, the argument has turned upon whether the amount agreed as general damages is beyond the proper range. It is proper, in the circumstances of this case and having regard to the way in which the trial was conducted, to test the matter in that way. This does not mean that the potential of a juLy to decide matters otherwise than in the way that matters were put to them is to be ignored. But, as counsel are agreed, if the amounts which, within such a range, could have been awarded by a jury on other matters are taken at their highest, the general damages must be no less than the sum I have stated. And there is a consideration related to this. This calculation of general damages assumes that the plaintiff will have, from the portions of the verdict to compensate her for economic loss, the equivalents, in general terms, of what she would have earned had she continued to work during her working life and compensation for the loss of economic capacity which she has suffered. In general terms, her economic future at her pre-accident level has been provided for and the general damages now in question are to be assessed on that basis. I am conscious that, in one sense, loss of this kind is a seamless fabric and not readily divisible. But in assessing the adequacy of it, this is a factor to be borne in mind: see generally Sharman v Evans 138 CLR 563. It has not been suggested that in this case the court is in a position, by re-assessment of the damages, to avoid the evil of a re-trial: cf Precision Plastics Pty Limited v Demir 132 CLR 362 at 372. I therefore agree with the orders proposed by Handley JA. Handley JA This appeal seeks a new trial limited to damages in an action for personal injuries brought by Mrs Anka Johnson, formerly Mrs Anka Ostojic against her employer Inghams Enterprises Pty Limited. The trial took place before Newman J and a jury of four. The defendant admitted liability at the trial which then proceeded as an assessment of damages. The plaintiff commenced employment with the defendant on 6 August, 1980 at its chicken processing plant at Kurrajong Road, Hoxton Park. The work was of a repetitive nature and was also comparatively heavy. The plaintiff worked successively in various departments of the plant up to the time of her injury. On 20 July, 1982 the plaintiff experienced pain in her right arm at work. She continued working that day and subsequently put the pain progressively worsened until she was forced to cease work on 20 August, 1982. In her action she alleged that as a result of the work she was required to do she suffered repetitive strain injuries in both arms. Her case was pleaded as an action for damages for negligence and breach of statutory duty. There was no dispute at the trial that the plaintiff had been incapacitated for work, as a result of her injuries, between 20 August, 1982 and a date during 1984 when she had recovered from the physical effects of an operation on her left wrist for carpal tunnel syndrome which was performed by a Doctor Bannister on 4 April, 1984. URJ INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] (Handley JA) 3 The dispute at the trial centred on the plaintiff's fitness for work and the existence or otherwise of any continuing physical incapacity after she had recovered from this operation. The defendant's case was that the plaintiff was only entitled to damages for a closed period, and that there was no longer anything physically wrong with her. The plaintiffs case was that she remained unfit for work due to continuing weakness and pain in her arms and neck. The jury returned a verdict for the plaintiff for $350,000.00 which, after deduction of workers compensation payments and the addition of interest, resulted in judgment being entered in her favour for $343,843.59. In its original Notice of Appeal the appellant took two points. The second of these alleged error on the part of the trial judge in "directing the jury that there was some evidence in the form of the comments of Dr Fowler that the plaintiff had a low threshold of pain." This question was first raised by counsel for the defendant in the presence of the jury immediately after the trial judge had finished summing up. The following exchange then took place between counsel for the defendant and the trial judge: "Mr Motbey: My learned friend argued there was evidence that a person with low pain threshold would have to be regarded as an eggshell skull type individual. I do not believe there is any evidence that the plaintiff has a low pain threshold. His Honour: I believe one of your doctors may have said that. Mr Motbey: Then, if that is so, I will not press that point." Counsel for the defendant did not pursue his application for a direction on this matter at that stage. Some time after the jury had retired to consider its verdict they sent a message to the trial judge in which they sought further assistance on four questions, three of which are relevant to this ground of appeal. The questions were: "1. Does the 'eggshell theory' (of Mr Anderson) extend beyond the physical condition, eg hands/arm usage? 2. What are the ramifications of this theory and how does it apply in relation to question 1? 3. What are the employer's responsibilities in relation to question 1 (a) during employment (pre-1984) (b) afterwards (post-1984)?" A discussion then followed, in the absence of the jury, between counsel and the trial judge. Having heard legal argument, which fortunately for the parties and the Court was fully recorded, the jury were recalled for further directions. The trial judge explained the eggshell skull theory to the jury in general terms, and then proceeded to explain how the general theory, or principle, applied in this case. His Honour said: "All of this emerged, the reference to the eggshell skull theory, from an answer given by Dr Fowler. After he had given evidence of his examination and the like, he was asked this question. I will read his answer in full. 'Q What was your opinion? A. I felt that it is likely that this woman had had what I chose to call a muscular overuse of her hands and arms in the first place of which the carpal tunnel effect was a part but felt that the condition was certainly subsiding and that although there were strong symptoms presented by the patient I did feel that there was some psychological aspect of the whole thing or else the only other thing you could get in a circumstance like that is a unduly low threshold of pain'. There is no evidence, other than Dr Fowler's comments, that the plaintiff had an unduly low threshold of pain. He puts it forward as a possibility. Indeed the case was put by the plaintiff not on psychological grounds. They were Dr Fowler's comments as he gave them there. I think that is as best as I can explain 4 UNREPORTED JUDGMENTS the theory to you. You can get cases where you get evidence of a predisposition, the man with an eggshell skull, for instance, but here the theory was put into effect in relation to what fell from Dr Fowler, which I have just read to you. I think that answers all three questions." Counsel for the appellant submits that the learned trial judge fell into error in directing the jury that this evidence of Dr Fowler which he read to the jury was evidence that the plaintiff had an unduly low threshold of pain. Iam unable to accept this submission. The primary issue for the jury, having regard to the way the parties conducted the trial, was whether there was anything physically wrong with the plaintiff after she had recovered from the operation on her left wrist in April 1984. In short the first issue was whether or not the plaintiff's complaints of pain and weakness were genuine. The second issue was whether or not that pain and weakness had been caused by the physical injuries to the nerves in the plaintiff's arms as a result of her work for the defendant. The plaintiff's case, based principally on the evidence of a Dr Champion, was that she had sustained injuries to the nerves in her arms. It is quite clear that the plaintiff did not present or argue any case of psychological injury at the trial. On the contrary it was Counsel for the defendant who raised the possibility of a psychological basis for the plaintiff's complaints of pain and weakness in the course of his cross examination of the plaintiff, and the four medical expert witnesses called in her case. He also led evidence in chief from medical experts called in the defendant's case. Dr Fowler was one of those experts, and his evidence that the trial judge read to the jury in the course of his redirection was part of his evidence in chief. In substance Dr Fowler expressed the opinion that he could not find any physical explanation for the plaintiff's complaints. His explanation for her symptoms and complaints was that they were atributable to purely psychological factors. The jury were therefore presented with a clear issue of fact on which they were confronted with conflicting medical and other evidence. The plaintiff's counsel was contending that her symptoms and disabilities were attributable to physical injuries to the nerves of her arms while the defendant's counsel contended that these symptoms and disabilities had no physical basis, and were atributable to psychological factors. There being evidence both ways on that issue it was open to the jury to find that the plaintiff's condition did have a physical basis. In these circumstances they were entitled to take Dr Fowler's evidence in the passage referred to as establishing that the only physical explanation for her symptoms and disabilities was that she had an unduly low threshold of pain. In my judgment Dr Fowler's evidence in the passage quoted could be understood by the jury as meaning firstly that some people do have an unduly low threshold of pain, and secondly that if one accepted that her complaints of pain and weakness were genuine, and further accepted that they had a physical and not a psychological basis, then the only explanation for her symptoms and disabilities would be the existence of an unduly low threshold of pain. The issue thus identified was essentially an issue of causation. The legal principles which determine whether such an issue can be left to the jury in any particular case involving medical questions were stated by Glass JA. with his usual felicity and economy in Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190 at 197 as follows: URJ INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] (Handley JA) 5 'The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Limited v Bes [1970] 2 NSWR 238. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence." The majority decision of this Court in that case was affirmed on appeal by the High Court. See Tubemakers of Australia Limited v Fernandez 50 ALJR 720. In my judgment the application of these principles to the evidence in the present case establishes that the trial judge was not entitled to withdraw this issue from the jury, and he was entitled and bound to give them a direction substantially along the lines that he did. For this purpose it does not matter that Dr Fowler's personal opinion was that the plaintiff did not have an unduly low pain threshold and that the explanation for her symptoms and disabilities was that these were caused by psychological factors. It is well established that a jury is not bound to either accept or reject the whole of the evidence of a witness but may accept some parts and reject others. See Herbert v Benson (1944) 44 SR(NSW) 382. The other ground of appeal as formulated in the original Notice of Appeal was that the trial judge had erred in "Declining [the defendant's] application to direct the jury that if they found that the respondent's symptoms were due to any psychological cause, as opposed to an organic disorder, then they would have to find against her on any claim for damages in respect of lost earning capacity occasioned by the psychiatric disorder." After the jury had withdrawn to consider their verdict the following exchange took place between the trial judge and defendant's counsel when the latter sought the further direction referred to in the first ground of appeal: "MrMotbey: Your Honour has charged the jury that they must in effect assess her incapacity for work and I have no problem with that. I submit that they must assess any incapacity due to physical disability due to Ingham's fault. They may think she does have an incapacity but it is coming from her psyche. His Honour: That is a matter of fact. I was very careful to avoid making any reference to psychological features, except I did mention it in relation to Dr Fowler's evidence. Because the plaintiff had not been pitching her case on psychological grounds at all I thought it best to avoid it. Mr Motbey: I argued if they thought she was genuine they then had to go on and find that the symptoms were due to her physical disruption of her tissues and nerves. If they thought, for example, it was due to a psychiatric disturbance, she would fail on the case she has sought to make out. His Honour: I thought of putting that to them but I decided deliberately not to. If it is an error, it is an error of commission and not admission, the reason being that the case was not conducted on the basis of a psychiatric disability and I feel, if I did try to stress that fact, it might finish up muddying the waters and they may think about psychiatry. For that reason thought I best not to put that to the jury. You dealt with it in argument in any event." 6 UNREPORTED JUDGMENTS Further discussion between counsel and the trial judge, which need not be quoted in full, took place after the jury asked the further questions previously referred to. When the trial judge redirected the jury in answer to their questions, he again stated that the plaintiff had not put her case on psychological grounds. In my judgment the appellant has failed to establish any error in the directions given by the trial judge on the issue covered by the first ground of appeal, and it has further failed to establish that the trial judge fell into error in declining to give any further directions, either at the conclusion of his summing up or later when he was dealing with the jury's questions. It must be remembered that the alleged misdirection or non-direction relate to the manner in which the parties conducted the case at the trial, and the manner in which counsel had addressed the jury. The trial judge has a discretion as to how he will deal with these matters in the course of his summing up to the jury. The exercise of this discretion by the trial judge is not readily susceptible of appellate review. The trial judge is in a position of special advantage to assess the assistance which the jury needs by way of directions at the close of the trial. A perusal of the transcript of evidence will not enable an appellate court to place itself in the same position as the trial judge in assessing the appropriateness or otherwise of particular directions sought by one party or the other in relation to the issues in the case, the conduct of the trial, and the arguments of counsel on questions of fact. For example in many cases such as the present, the transcript of evidence will not include the opening and closing speeches of counsel to the jury. In view of the position of real advantage enjoyed by the trial judge in these matters an appellate court will be reluctant to interfere. The relevant principles which should govern an appellate court in a case such as this are conveniently stated by the High Court in Schulmann v Peters (1961) ALR 209 at pp 213-214 as follows: "[The trial judge] was not bound to comment upon all the facts nor was he bound to stress again the comments which had been made by Peters' counsel in his address to the jury. As Windeyer J said in Jones v Dunkel (1959) ALR 367 at pages 376-7 'so much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance"'. However even if there was some error in this respect, it is important to bear in mind that the error, if any, would be one of fact. The principles which are applied to determine the right to a new trial based on some error of law on the part of the trial judge differ significantly from those which are applied when the only errors alleged are errors of fact. The principles which are to be applied by an appellate court in the latter case are summarised in the joint judgment of the full High Court in Manning v Bernard Manning Pty. Limited (1960) 101 CLR 345 at 351 as follows: "To obtain a new trial in a case where there can be no complaint of the direction in law given by the judge, and no complaint that any error of law arose in the course of the trial, it must be shown that a grave risk of the jury's being misled in the view of the case has nevertheless been occasioned. The case was URJ INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] (Handley JA) 7 eminently one for the jury to decide and in such a case to grant a new trial on the ground that arguments of fact were employed which might have misled the jury and went uncorrected by the judge at the trial, is a course to be taken only where the error is plain and the probability of injustice is high. In Taylor v Ashton (1843) 11 M and W 401 at 417 (152 ER 860 at 867) Parke B speaking for the Court of Exchequer put the principle in a few words: 'we cannot say that any wrong observation on a matter of fact, in which we could not concur, is a ground for granting a new trial, if it were left as a question of fact for the jury.'... it is a mistake to attempt to subsume the considerations upon which a court will Act in granting a new trial under a simple category, still more so to enumerate them in any exhaustive list, but speaking generally the court will not interfere where the whole question is one of the treatment by the judge, still less by counsel, of matter of fact." Despite the clear and careful argument of Mr Motbey I am not satisfied that the appellant has established that any error or omission occurred in the summing up or in the further directions given by the trial judge on this issue or that if there were any such error that it called for the intervention of this Court. In particular I am not satisfied that any substantial wrong or miscarriage occurred at the trial which brought the case within Pt51 R16 of the Rules of Court. In my opinion therefore the appeal based upon the original grounds of appeal should be dismissed. The Notice of Appeal as filed did not attack the jury's verdict as being unreasonably excessive or seek to have it set aside and a new trial ordered on this ground. However during the course of his argument in support of the appeal counsel for the appellant sought leave to amend the Notice of Appeal to add a ground of appeal challenging the jury's verdict. The amendment was allowed and the Court proceeded to hear argument directed to the additional ground of appeal. See Inghams Enterprises Pty Limited v Johnson [No 1], Court of Appeal, unreported, 14 March 1990. After the jury had returned its verdict and been discharged the trial judge determined the amount of pre-judgment interest to be awarded pursuant to s94 of the Supreme Court ACt. On the basis of the arguments of counsel for the plaintiff in his closing address to the jury and his knowledge of the conduct of the trial His Honour concluded that the jury must be taken to have awarded $254,376.83 for past and future economic loss and that the component in the verdict for general damages was $95,603.70. Before us counsel for the appellant contended that a proper analysis of the verdict showed that the jury had awarded a sum of $105,000 or more as general damages. However in my judgment the trial judge was in a very good position to determine the component of the jury's verdict which represented general damages and I am not persuaded that this Court is entitled to reach a different conclusion on that issue from that reached by the trial judge. Counsel for the respondent agreed in the approach adopted by His Honour. Counsel for the appellant first sought to challenge the sum inferentially awarded by the jury for past and future economic loss but in my judgment the award cannot be set aside by this Court on that basis. The plaintiff hardly spoke any English and could not read or write English at all. The jury has clearly found that the plaintiff's complaints of pain and disability are genuine and on this basis she has clearly lost all capacity for work. She has only ever worked in this country as an unskilled process worker and in Yugoslavia she had only worked on the farms owned by her parents and her first husband. Some of the medical witnesses called for the defendant expressed the opinion that the plaintiff was fit 8 UNREPORTED JUDGMENTS for light work of a supervisory nature. However the jury were justified in treating this residual capacity as purely theoretical in the plaintiffs case in view of her lack of fluency in English, lack of skills, and limited employment history in this country. Employment of that kind would only be available from a Yugoslav employer who spoke the same Yugoslav language as the plaintiff, and employed staff all of whom spoke the same language, where the supervisory duties did not require the plaintiff to communicate with customers, tradesmen or the public in English. The jury were entitled to treat the possibility of any such employment for this plaintiff as entirely theoretical and unreal. The well established principles which determine the basis on which an appellate court must approach a jury's verdict challenged on the ground that it is unreasonable have been stated by the High Court in Australian Iron and Steel Limited v Greenwood (1962) 107 CLR 308 at 311 and in Precision Plastics Pty. Limited v Demir (1975) 132 CLR 362 at 369. This Court must assume that the jury has taken the view of the evidence most favourable to the respondent. In these circumstances it is clear that the award of damages to the plaintiff for the effective loss of her earning capacity since the injury cannot be interfered with. There remains the award of $95,603.70 for general damages. At the time of the trial the plaintiff was 51 years of age. Since the breakdown of her second marriage she has lived alone in a "one room" Housing Commission flat. On the evidence her social life seems to be confined to contact with her daughter. She has no ability to read or understand English so she can derive no enjoyment from radio, television, books or newspapers except such of the latter as she can obtain in her own language. It is apparent from the evidence that the plaintiff enjoyed her work at Inghams where she had contact with other women from her own community. The plaintiff on the view of the evidence most favourable to her case has lost much of the efficient use of her arms and hands. She has difficulty in doing housework, shopping, washing her hair, hanging clothes on a clothes line, and ironing. She has difficult in sleeping and routine domestic and personal activities are either impossible, or at least difficult, slow and painful. The jury were entitled to consider that her prospects of re-marriage to someone in her own community were negligible and that she would have limited capacity to cope with or care for any grandchildren she may later have. All this indicates that a substantial award of general damages was merited in the present case. The question remains whether a reasonable jury on the evidence could award $95,603.70 for this head of damages in addition to full compensation for loss of all earning capacity. While on the evidence the plaintiff's former "social" life apart from her second husband and daughter appeared to revolve around her work she has on the basis accepted by the trial judge already been fully compensated by the jury for the economic effects of the loss of her capacity to work. If this award of general damages were to be upheld on the basis that she had also lost the social outlets and contacts she had formerly derived through her work it seems to me that she would be receiving an element of double compensation for what is essentially in the special circumstances of this case the same head of damage, viz loss of the benefits of employment. There was no evidence on which the jury could determine whether the plaintiff would have had any realistic prospects of re-marriage within her own community following the break-up of her second marriage had she not suffered the injuries URJ INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] (Handley JA) 9 in question. While on the jury's inferred findings she suffers severe physical handicaps, she has only herself to look after, unlimited time to do so, and little else to do. In these circumstances I have reached the conclusion, not without hesitation, that the inferred component in this verdict for general damages was excessive to the point of being unreasonable and must therefore be set aside. My initial inclination was not to interfere because there had been no clear and immediate challenge to the jury's verdict on the ground that it was excessive. However this initial hesitation has been overcome by further reflection and analysis. In the circumstances, in my judgment, the Court has no alternative but to allow the appeal, set aside the judgment based on the jury's verdict and order a new trial limited to the issue of damages. In accordance with the conditions on which the appellant obtained leave to amend its Notice of Appeal at a late stage during the hearing of the appeal the appellant must pay the respondent's costs of the appeal. 1. Appeal allowed; 2. Set aside the judgment entered by Newman J consequent upon the jury's verdict; 3. In lieu thereof, order that the proceedings be returned to the Common Law Division for retrial on the issue of damages; 4. Order the defendant to pay the costs of the first trial; and 5. Order the appellant to pay the costs of the appeal. Counsel for Appellant: SJ Motbey Solicitors for Appellant: Rishworth Dodd and Menczel Counsel for Respondent: P Webb QC, J Anderson Solicitor for Respondent: Vickovich and Associates