FIELD v TIMBER INDUSTRIES LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and MEAGHER JJA 7 June 1990, 7 June 1990 [1990] NSWCA 61 DAMAGES — personal injuries — jury verdict — appeal against inadequacy — young labourer injured when unfenced docking saw cuts tendons on the back of his dominant hand — jury returns verdict of $58,000 — objective evidence of loss of about 75% function of the hand — claim for substantial loss of earning capacity — poor pre injury employment record — treating doctor suggests plaintiff exaggerating and fit for work — questions asked by jury concerning liability for unfenced machinery reveal possible concern about liability — whether verdict so small that no jury could possibly have awarded it — Held: By the stringent limitations on the appellate review of a jury's verdict, the verdict could not be disturbed. Australian Iron and Steel Ltd v Greenwood, (1962) 107 CLR 308, 327; Precision Plastics Pty Limited v Demir, (1975) 132 CLR 362, 369 applied; Ingham's Enterprises Pty Limited v Johnson, Court of Appeal, unreported, 23 March 1990 referred to. PRACTICE and PROCEDURE — Court of Appeal — appeal from jury's verdict — whether new rule SCR Pt34 R8A authorises Court of Appeal to substitute its judgment as it thinks fit for the judgment which follows a jury's verdict. Held: It does not. The rule was inapplicable to the facts of the case. Its purpose is to permit a trial judge to take a jury's verdict notwithstanding an objection of law to the claim so that, despite any judgment entered, the jury's verdict is available to be restored if the judged, ruling is later reversed on appeal. Supreme Court Rules, Pt34, R8A. ORDER Appeal dismissed with costs. Clarke JA This is an appeal by a plaintiff from a judgment entered on 30 January 1989 consequent upon a jury verdict assessing damages in favour of the plaintiff in the sum of $58,000. The ultimate judgment was $27,380.58 but that figure reflected adjustments to the jury's verdict necessitated by the provisions of the Workers Compensation Act and perhaps a payment of other expenses. The appellant plaintiff - and I will call him the plaintiff for convenience - has appealed against the judgment upon the basis that the verdict of the jury was so low as to be appellable in accordance with the well known rules. The task which the plaintiff takes upon him is to persuade the Court that the jury could not reasonably have come to the conclusion that that figure of $58,000 reasonably compensated the plaintiff for his injuries. The applicable rule is, as I have indicated. well known as stated quite recently by Gibbs J was he then was) in decision Plastics Pty Limited v Demir, 132 CLR 362 at 369. His Honour said: "The appellate Court will only interfere if it arrives at the conclusion that the damages are so large or so small as to be unreasonable - so excessive or so inadequate that no jury could possibly have awarded them or, as is sometimes said, out of all proportion to the circumstances of the case." Insofar as there was a lively dispute of fact this case it is also pertinent to quote from the judgment of Latham CJ in Hocking v Bell, 71 CLR 430, where his Honour said: "In a trial by jury the jury is the constitutional tribunal for deciding 2 UNREPORTED JUDGMENTS issues of fact: As Wright LJ said in mechanical and General Inventions Co Ltd v Austin, (1935) AC 346, at 373: 'The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury." Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury." In this case that is an important standard to be observed, although I would qualify the statement which was made by reference to the need for the jury to have before it a rational basis for reaching particular decisions of fact. If, although there may be some evidence to support an inference, it would be quite irrational to draw that inference then, as it seems to me, it would be unreasonable for a jury to take that course. In this case the plaintiff sustained a serious injury at his work on 29 October 1986. The injury was caused by a docking saw and affected the back of his hand. It would seem that although there was no essentially penetrating type of injury, the docking saw came into contact with the back of the plaintiff's hand in the area adjacent to the forefinger and middle finger and severed the extensor tendons which lie in that area. The cut which was occasioned was a ragged one and, as I recall the evidence, some oil or other foreign material was left in the cut. In addition, the saw gouged out areas of soft tissue and caused some injury to his bony structures. He was taken to Bathurst. District Hospital and was operated on by Dr Lucas, a general practitioner who carried out surgical work at the hospital. The operation was described in detail but it is not necessary to repeat that detail here. It is sufficient to say that what, in effect, occurred was that the extensor tendons were sutured together, the wound cleaned and then closed. The plaintiff was discharged from Bathurst District Hospital on 4 November 1986 and thereafter attended physiotherapy at the rehabilitation unit at Bathurst District Hospital for a few weeks. Dr Lucas then referred him to an orthopaedic surgeon, Dr Burgess, who, in turn, referred him to Dr Betts, a member of the Sydney Hospital Hand Clinic. There was no dispute between the parties that the plaintiff suffered a very nasty or severe injury. There was, however, a considerable dispute as to the consequences of that injury. To put it shortly, the plaintiff's camp suggested that it had caused a significant permanent impairment of his work capacity. In order to support this suggestion, evidence was called from Dr Lucas, the operating doctor, and Mr O'Keefe, an orthopaedic surgeon who had seen the plaintiff on behalf of the defendant. Both these doctors thought that he had been left with very significant disabilities. The major disability which impacted on his work capacity was an inability to grip properly. He was left, according to these doctors, with an inadequate grip without any strength. Because primarily of his lack of grip, the percentage disability to be found in the hand was either 65 per-cent, on the one hand, or 80 per cent, on the other hand. The views of these two doctors were supported by a certificate which was tendered without objection, given by the Medical Panel under s51(4) of the Workers Compensation Act 1926. The Panel, which was constituted by two doctors, concluded that the plaintiff had an ineffective grip and that the assessment of the permanent loss of the efficient use of the right hand should be put at 65 per cent of the total loss thereof. URJ FIELD v TIMBER INDUSTRIES LTD (Clarke JA) 3 The case, which as I have indicated was well supported by medical. evidence, was that the plaintiff had suffered a severe injury which had occasioned significant permanent disability which would impact severely on his earning capacity. The plaintiffs counsel went to the jury upon the basis that the plaintiff had lost $28,400 in wages to the date of trial and that his impairment of earning capacity should be properly assessed at something in excess of $100,000. The defendant's case focused upon the credibility of the plaintiff counsel for the defendant suggested to the jury that the plaintiff had endeavoured to pull the wool over the eyes of the doctors who had supported his case and that he had exaggerated his disabilities in an endeavour to obtain a large verdict. The defence also called Dr Burgess and tendered the report of Dr Betts in support of the contention that the plaintiff did not. have an ineffective grip; that, in fact, his grip was strong and adequate. According to the case that the defendant sought to make he was, to all intents and purposes, fit for work approximately ten works or three months after the date of injury. In saying that I am, perhaps, putting the defendant's case a bit high. What the defendant did suggest was that. he was fit for the type of work he was given after ten weeks and that once he embarked on that work he suffered no loss of wages. After a period he was then fit for unqualified work, according to this argument. The battle lines were well and truly drawn in what appears as a robust jury trial in which a fundamental issue was whether the plaintiff had presented his incapacities and disabilities properly to the various doctors and whether he had presented them properly to the Court. In view of the difference between the claim which was put by the plaintiff - a summary of which I have set out - and the jury verdict, it is obvious that the jury rejected the plaintiff as a witness of truth and concluded that he had not been candid and frank with all the treating doctors. If one directs one's attention to the summing-up, which was not the subject of any objections and in respect of which no directions were sought, one finds that his Honour fairly put the contest between the parties in terms similar to those I have used. Having dealt late in the afternoon in the early part of his summing-up with various aspects of the case he pointed out the conflict between the three medical experts - and I include the Board as one expert there - called on behalf of the plaintiff and the opinions of the two whose evidence supported the defendant. On the next day he returned to look in somewhat more detail to the arguments of the parties. He then said: "As I understand it, the argument that his earning capacity has been severely interfered with is based on the proposition for which there is support in the medical evidence that he cannot grip firmly. His Honour then noted Dr Lucas had put the disability at 65-75 per cent, that Dr O'Keefe had put it at 80 per cent and that Ex Q, which was the Medical Panel's certificate, put it at 65 per cent. He then continued: "Against that evidence there is the evidence of Dr Burgess that in his opinion the plaintiff does not have that disability at all. I think, to put it in its simplest terms, it is Dr Burgess' opinion that he is putting it on and he explained to you his reason for coming to that conclusion; namely, that when he tested the plaintiff he got what he described as inconsistent results, different results and he said they were related to whether the applicant was holding the muscles of his forearm taunt or tight or not." His Honour then referred to the hand specialist to whom the plaintiff had been referred; that is, Dr Betts and quoted from one of Dr Betts' reports in which the doctor had said: "Despite the loss of extensor function at the M/P joint his hand is functionally remarkably good with a good pinch and good grip strength." 4 UNREPORTED JUDGMENTS Those short extracts, which were, of course, enlarged on to a great extent, exemplify the fact that his Honour directed his detention with some care to the area of dispute between the parties. I have earlier mentioned that there was no objection to this summing-up nor was any application made for redirection. Accordingly, it seems to me appropriate to proceed upon the basis that what his Honour said reflected the course of the trial and dealt, in summary terms, with competing arguments of counsel which, no doubt, had been put at great length, quite properly, during addresses. If that is a true summary of the course of the trial, then unless the verdict is so low as to be unreasonable upon the basis of the acceptance of Dr Burgess' and Dr Betts' evidence, it seems to me that the verdict should stand. Counsel for the plaintiff did not, as I understood his argument, suggest that if Dr Burgess was accepted, for instance, the verdict was inadequate. Certainly he did not put any submissions before us to that effect. What he said was that there was no rational basis for accepting that Dr Burgess had advanced the view that the plaintiff did not have a permanent incapacity of the order suggested by the doctors who supported the plaintiff's case. It will be necessary to say something more about that in a minute. In addition, he said that Dr Burgess did not have all the material. before him when he made his assessments and that his evidence did not provide a rational basis for rejecting the opinions of those doctors who had deposed to a high degree of incapacity. Similar submissions were made in regard to Dr Betts, although the emphasis was placed slightly differently insofar as Dr Betts did not suggest that the plaintiff was malingering and advanced what initially appeared to be a provisional type of opinion. To enlarge upon those submissions I should point out that both Dr Betts and Dr Burgess saw the plaintiff in January 1987. That was ten weeks after the injury. Dr Betts at that time expressed what fairly should be regarded as a provisional viewpoint and he said that the plaintiff should have a trial of return to work. The next month, that is February 1987, he saw him again and on this occasion noted that he had been doing quite well at work, although suffering from some anxiety and aching in his hand from time to time. Dr Burgess, who had referred the plaintiff to Dr Betts, was unable to express a confident opinion as to the degree of the plaintiffs disability. The reason for this was, he said, that the plaintiff had failed to co-operate in the examination and had given all the indications of endeavouring to exaggerate the degree of his disability and to present his condition at its highest. These views were articulated by Dr Burgess in his report and were amplified in his evidence in chief. Having considered the submissions of counsel as to the construction which should be placed on some answers given by Dr Burgess, I have concluded that the trial Judge's interpretation was correct; that is, that Dr Burgess was putting in fairly clear language his view that the plaintiff was not presenting a genuine picture. He was articulating an opinion that the plaintiff was presenting an exaggerated view of his injuries for reasons which the doctor did not track down. It is unnecessary to quote slabs from the evidence of the doctor but I think one short passage might indicate the flavour of the evidence. During his cross-examination he said: "T mean ten weeks is a long time after what is considered to be an injury which can be sutured by any general surgeon. They do not have to be specialists to repair extensor tendons. I am not detracting from Dr Lucas' job, he did an URJ FIELD v TIMBER INDUSTRIES LTD (Clarke JA) 5 excellent job, that is why it seems strange to me that this bloke after ten weeks or whatever it was was going on as if his hand had been through a set of rollers." Counsel, however, directed the court's attention to aspects of Dr Burgess' evidence which suggested that he had not been privy to sufficient information to express the opinion which he did. He pointed out the doctor had not been aware of the fact of bony injury and, more importantly, that the doctor had not seen the lump on the back of the plaintiffs hand. This lump was, counsel argued, of great significance. It demonstrated a bony reaction to the original injury which explained the plaintiffs inability to form a good grip and, in particular, to form a grip with strength. The reaction brought about. By the injury had. led, according to this view, to a tethering of the extensor tendons with the consequence that they restricted the degree to which the plaintiff could bend his fingers and effect a good grip. I think it is probably true to say that neither Dr Betts nor Dr Burgess were aware of a lump on the back of the plaintiff's hand. It may also be correct to say, as counsel did, that the lump probably arose in the months following the examinations by Dr Betts and Dr Burgess. But the problem with the argument lies in the evidence concerning the significance of the lump. Dr O'Keefe thought it was significant or it was the cause of the tethering. Against that view there are a number of considerations. The first is that Dr Lucas, the operating surgeon, thought in January 1987 that the plaintiff had a disability of about 65-75 per cent and he cid not alter that view even though he saw the plaintiff much later in the piece. He does not seem to have thought that the development of any lump - and I may say he recognised the existence of the lump - had any functional significance. More importantly perhaps, Dr Burgess, whose attention was directed to the question of the significance of the lump, adhered to the view that it would have no impact on the function of the hand at all. There was thus a healthy conflict of fact and in that circumstance the jury were entitled, in my opinion, to disregard the lump as dealing heavily on the question of incapacity. If they were entitled to disregard Dr O'Keefe's views as to the significance of the lump, then the basis put by counsel for the plaintiff nor this Court to reject Dr Burgess' opinion as providing no rational basis for d jury verdict disappears. If, as Dr Lucas thought, the incapacity was the same in January as it was in September when Dr O'Keefe first saw the plaintiff, then no reason appears why Dr Burgess was placed at any disadvantage by having seen the plaintiff in January 1987. It has been submitted that although Dr Burgess made a number of adverse comments regarding the plaintiff he did not, in fact, assess the degree cf the plaintiffs disability. On the contrary, he said he was unable to assess the degree of disability. Accordingly, the evidence was left in a state where the evidence of those doctors supporting the plaintiff was unchallenged and there was no rational basis for rejecting it. I would only say in relation to that argument that, as I have already indicated, the trial Judge did not understand Dr Rurgess to be saying any less than that he thought that the plaintiff was putting it on. That is a view with which I agree and I do not think there is any force in the submission that Dr Burgess' evidence did not provide a rational basis for coming to the conclusion that the plaintiff had not been frank with the various doctors. 6 UNREPORTED JUDGMENTS Counsel also submitted that Dr Burgess' evidence stood alone while Dr Betts only provided a provisional viewpoint. In a sense that is correct, but I do not think the court should overlook the fact that the provisional viewpoint related to the prognosis and that Dr Betts was of the view that when he saw the plaintiff he had a good pinch and good grip strength. What the doctor actually said was: "Despite the loss of extensor function at the M/P joint his hand is functionally remarkably good with a good pinch and good grip strength. His main concern is that his hand feels abnormal although he is able to do most things with it." The picture there painted is remarkably different from the picture which emerges from the reports and evidence of Dr O' Keefe and, to a lesser extent, Dr Lucas. Having regard to all of the submissions which were put with great care by senior counsel for the appellant, I have come to the conclusion that it could not be said that there was no rational basis upon which the jury could reject the plaintiff's complaints of his inability to make a good grip and to attain a good pinch grip. The expert evidence in this case was, as I have sought to point out, completely at issue and left it open to the jury to take one or other view or perhaps even to take something of a middle line. But there was not only the evidence of the medical practitioners. The plaintiff, of course, gave evidence and his credit was significantly assailed. He was a man who had left school about ten years prior to suffering the unfortunate accident. During that period of ten years he did not have what could be described as a good work record. He had only held one job for period in excess of twelve months and that was with his rather, who was a builder. He had, for the rest of the time, moved from job to job and in the twelve months preceding his employment with the respondent, which only commenced about four weeks privr to the injury, he does not appear to have worked at all. Although senior counsel for the plaintiff sought to explain this poor work history by reference to the plaintiff's desire to move around and see Australia, it seems to me quite clear that it was open to the jury to take the view that he had shown no great love for work in the past. If one then turns one's attention to the plaintiff's work history following the accident one could, although not necessarily would, form the view that he had not really tried very hard to get work and stay in it. For instance, there was evidence from an employee of the respondent which indicated that the plaintiff was assigned work which could be regarded as well within his capacity and had merely declined to perform it. On the other hand, the plaintiff said that the work he had been assigned was much more difficult and he had been unable to manage. The long and short of that is that there was a live issue for the jury as to the credibility of the plaintiff and whether or not he was presenting a fair and genuine claim to the court or whether he was trying to embellish it in order to gain a large verdict. All of that evidence leads me to conclude that in the light. of the conflict of fact there was a rational basis for the jury either to come to a conclusion in the plaintiff's favour, that he had suffered a severe injury which led to permanent incapacite of a significant degree, on the one hand, or that he had suffered a severe injury which had led to very little incapacity for work. The out-of-pocket expenses, which were agreed, totalled $4,652. Upon the plaintiff's case, the loss of wages were as I earlier indicated, $28,400 and there would be a large component for impairment of earning capacity. On the URJ FIELD v TIMBER INDUSTRIES LTD (Kirby P) 7 defendant's case, the loss of wages to the date of trial amounted to about $4,300 and there was little, if any, component available in respect of impairment of earning capacity. If one accepts that the jury preferred the defendant's case, as I think one must for present purposes, it is apparent that. the jury awarded between $48,000 and $50,000 for general damages including impairment of future earning capacity. Upon the view of the case presented in the evidence of Dr Burgess and Dr Betts, I do not think that figure can be regarded as so small as to be unreasonably inadequate. Again, I think, in the light of my analysis of the evidence, that was a view always open to the jury and, therefore, the appeal fails. Before concluding I should finally mention a point that was not mentioned in the written submissions but was raised this afternoon in answer to an invitation by the learned President to make submissions to the Court as to its role in the case of an appeal based upon perversity of a jury verdict. The argument was, if I may be permitted to say so, ingenious but, I am afraid, without substance. It was that Pt34 R8A of the Supreme Court rules, which deals with trials and which enables the court to give judgment as it thinks fit notwithstanding the verdict of the jury, enabled this court on appeal to give a judgment contrary to the jury's verdict if it thought fit. Counsel was, however, unable to supply the grounds upon which the court could disregard the jury verdict and impose its own view on the parties and I think that there was reason for counsel's inability to give those grounds. That reason simply is that there are none. It would be assigning a long line of authority developed over many, many years to the waste paper basket to adopt this viewpoint. The submission should be rejected. In my opinion, the appeal should be dismissed with costs. Kirby P If this appeal were before the Court as an appeal from a judgment of asingle judge sitting alone, I might well have reached a conclusion different from that just proposed by Clarke JA. But the judgment followed a jury's verdict so that different rules govern this Court in the review of it. On the basis of the material which was before the jury in the present case, I am driven to the same conclusions as Clarke JA has reached. Like his Honour I am obliged to apply the principles which have been laid down by the High Court of Australia and by this Court for dealing with appeals of the present class. In Precision Plastics Pty Ltd v Demir, (1975) 123 CLR 369, at 369, the principle is clearly stated: "the appellate court will only interfere if it arrives at the conclusion that the damages are so large or so small as to be unreasonable - so excessive or so inadequate that no jury could possibly have awarded them or, as is sometimes said, out of all proportion to the circumstances of the case." Mahoney JA in Ingham's Enterprises Pty Limited v Johnson, Court of Appeal, unreported, 23 March 1990, recalled the observations of Windeyer J in Australian Tron and Steel Ltd v Greenwood, (1961) 107 CLR 308, at 327. Windeyer J said (at 326): "A court cannot know what the jury thought of the evidence, how they looked at the plaintiff's experiences in the past or how they foresaw his future. When damages aLe said to be excessive, it is to be assumed that the jury took the most favourable view possible of the plaintiff's claim, that is that they took the most serious view possible of his plight and entertained the utmost pessimism as to his prospects. But what that actually means in a case like this it is impossible to know. Even the future economic consequences of the injury could not be predicted with any certainty. How the jury saw the plaintiffs future we cannot 8 UNREPORTED JUDGMENTS know; and we trust resist the temptation to draw our own inferences from the evidence and test the jury's verdict by them." And at 327: "Jurymen are carefully denied knowledge of what was done in other cases. The validity of their verdict does not depend upon whether a court approves it, but on whether it is the result of an honest performance of their duty. of that, conformity with a supposed standard of measure that is both imprecise and unknown to them seems hardly an appropriate test. Courts should, I think, be very slow to accuse a jury of having failed to perform the duty they were sworn to perform. If honestly, without prejudice or partiality they considered the evidence and arrived at a verdict, then did their duty. I may quote hele a passage from Duncombe's Tryals per Pais referred to above. The first edition was published in 1665. The earliest I have seen is the fourth published in 1702, where the passage appcars at 332: 'And its a reasonable kirldrless to jury-men to make good construction of differing judgments among them, while we sce how oft judges themselves differ in their opinions, on a matter stated equally to them all, and that not only as to oe matter of law but as to matter of fact' . To approach its task, the court was obliged to look at the evidence in the case from the point of view most favourable to the case of the respondent. Clarke JA has outlined three elements which combine to provide a rational foundation for the conclusion which the jury reached. The first was that the attack by cross-examination on the plaintiff was accepted by the jury and that the jury reached a conclusion (as put by Roden, J when he charged the jury) that the plaintiff had been "putting it on". Although those words were never put, in terms, to the plaintiff, the clear thrust of the cross-examination of him was directed to that point. It was, therefore, open to the jury to accept the suggestion that it was the fact. It was a suggestion which derived some support from the evidence of some of the medical witnesses. The plaintiff's own pre injury work history also lent weight to the same conclusion. Secondly, there was the very strong evidence of Dr Burgess. It was the more strong because Dr Burgess had been qualified to give treatment to the plaintiff. Yet it was Dr Burgess who, in his only report in the matter, expressed the opinion that the plaintiff had demonstrated bizarre efforts to exaggerate the degree of his disability for some reason or other. For instance, Dr Burgess suggested that the plaintiff limited the movement of his fingers, which varied considerably where it was ensured that his forearm muscles were relaxed and he was not actually resisting efforts to move the fingers. From that evidence the jury could well have reinforced its view that the plaintiff was "putting it on". The oral evidence of Dr Burgess was to similar effect. In the passages which Clarke JA has quoted Dr Burgess expressed if not directly then obliquely - the view that the plaintiff was fit for work quite soon after the injury, probably after ten weeks. Some of the Plaintiff's allevations, he suggested, were false. The third element running against the plaintiff was the evidence of Dr Betts. I will not repeat the critical passage in his report which was tendered and admitted without objection. This indicated that the plaintiff had a good pinch and that his grip was quote strong. If that evidence were accepted, it would justify a conclusion by the jury that the plaintiff's loss of capacity for employment, both in the past and in the future, was minimal even in a case of a person whose background had been one of labouring work in the country. URJ FIELD v TIMBER INDUSTRIES LTD (Kirby P) 9 I agree with what Clarke JA has said about the bold but ultimately futile attempt by counsel for the plaintiff to rely on the new rule, Pt34 R8A Supreme Court Rules. That new rule states: "8A. where a trial with a jury a verdict is given or a findiny or assessment is made the Court may on the motion of any party or of its own motion give judgment as it thinks fit notwithstanding the verdict." There are many reasons why that provision cannot afford a new principle for this Court in reviewing the decision of the verdict of the jury. First, the application of the rule is obviously trigered, in its terms, by events which must take place at a trial with a jury. It is not directed to providing a new original power to the Court of Appeal. There was no motion at the jury trial in this case. Therefore, in the terms of the rule, it was not brought into operation. Secondly, there was no such motion because at the time of this trial the rule was not in force. It has been made since the trial took place. Accordingly, it is not surprising that it was first invoked during the hearing of the appeal today. Thirdly, it would be surprising in the extreme that the basic principle respecting jury verdicts, which has been established for so long, should be removed by a sidewind by such a rule. Fourthly, it would be even more surprising that it should apply to the Court of Appeal when the rule finds itself in that part of the Supreme Court Rules which deals with trials. On my opinion, the rule has nothing to do with the principle to be applied in the appellate review of jury verdicts. That principle remains as stated in Demir and in the other cases on the subject. The rule invoked by the plaintiff is addressed to a quite different purpose. This is to permit judges to take jury verdicts oll disputed claims. If, then, a judgment entered contrary to such verdict is later overturned on appeal, the jury's verdict will be available to avoid a retrial. I depart this case with a repetition of the expression of concern with which I opened these reasons. It is possible that in this case an injustice has been done to the plaintiff. If a judge had reached the same decision, dealing with the matter sitting alone, I might well have been prepared to intervene, accepting the evidence of Dr Lucas, Dr O'Keefe and the medical panel of the State Compensation Board concerning the plaintiff's disabilities - notwithstanding the opinion of Dr Burgess. The plaintiff's loss of function of his right dominant hand was of the order of 75 per cent. That, in a labouring man, would be a most serious disability. There was, as has now been pointed out several times, available evidence on the basis of which rationally and with perfect propriety the jury could have reached the conclusion which it did. But my disquiet arises from a concern that the pivot of the case before the jury became the evidence of Dr Burgess. Seeing the plaintiff's hand he formed a view, for reasons which he expressed, which was adverse to the appellant. Before a jury such a medical opinion could possibly have a very great impact. As well as that there is always a concern in this class of case that disproportionate weight would be given to the poor employment record of the plaintiff that might also have played a role in the jury's deliberations. In such circumstances there was a real risk the evidence of that character might have overborn in the jury's deliberations the objective evidence of the nasty and serious disability which the plaintiff suffered. That possibility may also be derived from the questions concerning liability which were asked by the jury at the close of the case. These questions evidence a concern about the state of the law which provides for recovery in cases of 10 UNREPORTED JUDGMENTS unfenced machinery. It is possible that the verdict reflects that disquiet. Of course, it is not for the Court to impugn the verdict of a jury. The verdict in this case may have indeed represented a perfectly proper assessment of the plaintiff's disability. On the other hand it may not. We are not, in either case, authorised to speculate. This Court is only authorised to intervene in a very limited class of case where the verdict is so unreasonable and unsupported by evidence that it can clearly be seen as erroneous. This is not such a case. Accordingly, I agree that the appeal should be dismissed with costs. Meagher JA I agree with Mr Justice Clarke. The orders of the Court are: 1. The appeal is dismissed; and 2. The appellant must pay the respondent's costs. Counsel for Appellant: B Gross QC and P Semmler Solicitors for Appellant: McIntosh, McPhippamy and Co Counsel for Respondent: DGT Nock Solicitors for Respondent: PW Turk and Co