A J LUCAS CONSTRUCTIONS PTY. LTD v RAYMOND SIDNEY HARLAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, CLARKE and HANDLEY JJA 14 August 1991, 14 August 1991 [1991] NSWCA 1 JURY VERDICT — Personal injuries — Review by appellate court only possible where verdict out of all proportion to circumstances of case — Failure by defendant to call evidence in respect of comparable earnings. Held Appellant had failed to establish that the verdict appealed from was one which no reasonable jury could have awarded. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Progress and Properties Ltd v Craft (1976) 135 CLR 651 Handley JA This is an appeal by the defendant from the verdict of a jury in anaction for personal injuries arising out of an industrial accident. The action proceeded as an assessment only and the jury returned a verdict for the plaintiff for $620,000. The defendant has appealed on the ground that the damages awarded were excessive. It elected to call no evidence at the trial. The nature and extent of the plaintiffs injuries were not in dispute and Mr. Gross QC who appeared for the appellant in this Court, but who had not appeared at the trial, properly conceded that the jury were fully entitled on the evidence to conclude that, as a result of the accident, the plaintiff had totally lost his capacity for work. Out of pocket expenses were agreed and there was little room for dispute as to the future medical expenses. The areas of dispute on the appeal related to the amounts the jury were entitled to award for past and future economic loss and general damages. The principles which must guide an appellate court asked to review an award of damages by a jury on the ground that they are excessive are in doubt. They were succinctly stated in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369 by Gibbs J. The appellate court will only interfere if it arrives at the conclusion that the damages are so large as to be unreasonable and so excessive that no jury could reasonably have awarded them, and out of all proportion to the circumstances of the case. In approaching the evidence the Court must also apply well established principles. In Progress and Properties Ltd v Craft (1976) 135 CLR 651 at 672 Jacobs J, whose judgment was concurred in by three other members of the Court said: "...dn the case of a jury's verdict the Court of Appeal has no power to review the evidence except for the purpose of determining what view on the evidence or on any particular aspect of it was reasonably open to the jury. The Court must assume that the jury took a view of the evidence most consistent with the size of the verdict which it returns...". At the Court's invitation Mr. Gross QC addressed primarily on the issues relating to the plaintiff's economic loss. In substance there were two principal questions for the jury. The first related to the length of time the plaintiff would 2 UNREPORTED JUDGMENTS have been likely to continue in employment had he not been injured, and the level of earnings the plaintiff might have been expected to earn. The plaintiff was 52 and a half at the date of his accident and nearly 58 at the date of trial. He had been employed by the defendant as a welder for some 7 years before the accident. He gave evidence that he loved his work, worked 10 to 12 hours a day, six days a week and also enjoyed working on the construction sites outside Sydney and particularly in Queensland, where he was sent by the appellant. This work attracted higher rates of pay because of site allowances and the like. This evidence was corroborated by his wife who said that the plaintiff has often cut short his holidays at the appellant's request to carry out urgent work. She described him as a workaholic. The plaintiff said he intended to work past the age of 65. He had not discussed this plan with his employer and he did not know whether he had a fixed retirement age. The trial Judge left it to the jury to consider how long the plaintiff would have been likely to work but for his injuries. He said: "You will have to proceed, members of the jury, on the basis that there is certainly no evidence before you that his job with the defendant company would have continued to be available to him after the age of sixty-five. That, of course, would not necessarily mean that he would not have been able to obtain some remunerative work elsewhere, but you will have to consider the realities of that. Are there in fact jobs available for sixty-five year old men, even with the wealth of experience and skill the plaintiff apparently had?" Counsel for the plaintiff invited the jury to find that but for the accident the plaintiff would probably have worked until he was 70. The defendant, as I have said, called no evidence and, in particular, it did not call evidence to establish that in any event the plaintiff would have had to retire from his employment prior to attaining the age of 70. Moreover there was no evidence from the defendant, or indeed even any cross-examination, to establish that the plaintiff could not reasonably have expected to do this welding work after 65. The defendant did not challenge the decision of the trial Judge to leave to the jury the question whether the plaintiff would probably have worked until 70, as submitted by counsel for the plaintiff. Nor were any further directions sought on this issue. it is clear, therefore, that it was reasonably open to the jury to assess the plaintiffs future economic loss on the basis that but for his injuries he would otherwise have worked until age 70. The next issue which fell for the jury's determination concerned the probable future earnings of the plaintiff in the years between the accident and the trial and thereafter until whatever age the jury found that he would have ceased work. Although the Court did not call upon Mr. Semmler, for the respondent, we have had the benefit of reading, prior to the hearing, his full written submissions. His principle submission was that it was reasonably open to the jury in this case on the evidence to award $170,000 or even more for loss of earnings up to the date of the trial and on the same basis, but allowing a 20% discount for contingencies, to award a further $316,000 for loss of future earnings to age 70. These sums together with the agreed out of pocket expenses and a conservative allowance for future medical expenses gives a total of $522,500 leaving only $97,500 for general damages. Clearly this latter figure was well within the range that the jury could reasonably award as general damages. Indeed a substantially higher figure in my opinion could not have been successfully challenged. UWRULUCAS CONSTRUCTIONS PTY. LTD v RAYMOND SIDNEY HARLAND (Handley JAB The only challenge to these submissions from Mr. Gross was that it was not reasonably open to the jury to find that the plaintiff's probable earnings would have been as high as Mr. Semmler submitted. The respondent proved his actual earnings in the employment of the appellant for the broken year from 1 July 1983 to the date of his accident. He also proved the actual earnings of another employee of the appellant, a Mr. Mark Kruger, for the same period and thereafter until 30 June 1989 shortly before the trial. The plaintiff also proved the actual earnings of another employee of the defendant, a Mr. Barry Kruger, from the date of his accident (that is the plaintiff's accident) until 28 January 1987, some two and a half years before the trial. Mr. Barry Kruger was also an experienced welder who was the only other person employed by the appellant "at the same comparable grade" as the respondent. However, the respondent gave evidence, which was unchallenged and uncontradicted, that he was more highly skilled that Mr. Barry Kruger at the time of his accident and was almost invariably selected by the appellant for the more difficult jobs and particularly for the jobs away from Sydney which attracted the higher rates of pay. In the absence of any contradiction from the defendant the jury were fully entitled to find that the plaintiff earned significantly more than Mr. Barry Kruger. The defendant in particular did not prove what the actual earnings of Mr. Barry Kruger were for the broken period from 1 July 1983 to 5 March 1984 when a direct comparison could have been made with the plaintiff's pre-injury earnings. Mr. Barry Kruger's earnings for the rest of the financial year were before the jury but these did not necessarily provide any guide to his earnings before the plaintiff's injury because his (Mr. Barry Kruger's) earnings may have significantly increased after the plaintiff's accident as a result of being transferred into the more highly paid work that the plaintiff had previously done. This was a significant gap in the evidence which the defendant could readily have filled. This gap was not filled by the defendant and the jury were entitled to conclude that the missing evidence would not have assisted the defendant's case. In my opinion it follows that the jury acting reasonably would have been entitled to find that the plaintiff's earnings from the date of the accident to 30 June 1986 would probably have been greater than the $58,843 actually earned during this period by Mr. Barry Kruger. For the full financial year ended 30 June 1987 and for the next two financial years the only evidence before the jury as to comparable earnings related to the actual earnings of Mr. Mark Kruger, which were $74,944.65. Counsel for the plaintiff put to the jury that since in 1984 the plaintiff's pre-injury earnings were 40% higher than those of Mr. Mark Kruger, the jury should find that but for the accident the plaintiff's earnings would have continued at this margin above those earned by Mr. Mark Kruger. On this basis the plaintiff's earnings for the three years 1 July 1986 to 30 June 1989 would have been of the order of $107,000. The trial Judge left to the jury the issue as to the plaintiff's probable post injury earnings and reminded them of the arguments that had been addressed to them by counsel for the plaintiff and the defendant. There were of course, arguments to the contrary of those put by counsel for the plaintiff based on the 40% margin the plaintiff received above the wages paid to Mark Kruger at the time of the accident. However, these were matters for the jury. Once again the failure of the defendant to call evidence on this issue entitled the jury to draw the inference that but for the accident the plaintiff would have continued to receive the established margin of 40% over the earnings of Mr. Mark Kruger down to the date of trial. 4 UNREPORTED JUDGMENTS The defendant could so easily have called evidence to establish that Mr. Mark Kruger's skills had greatly increased during these years and that had the respondent remained in the appellant's employment his margin over the wages paid to Mr. Mark Kruger would have declined or disappeared. No such evidence was called. In my opinion, therefore, the appellant has failed to establish that this jury could not reasonably have awarded damages of $170,000 or more for past economic loss and an equivalent award for the future down to age 65. There was no evidence before the jury as to the earnings the plaintiff would probably have received had he worked to age 70. However, this issue was properly left to them by the trial Judge. He reminded the jury of some of the matters which may have resulted in the plaintiff earning progressively less during those years. Again these were matters for the jury. Furthermore, the appellant called no evidence to establish that there were good reasons why even a skilled and experienced man such as the respondent would not at that age be sent to construction sites outside the metropolitan area or otherwise be entitled to earn at the rate that he had done in the past. Moreover, the plaintiff was not cross-examined to suggest that after 65 he would no longer be able to do the more highly paid welding work. In these circumstances I have concluded that it was reasonably open to the jury to award damages for loss of future economic capacity between ages 65 and 70 on the basis that his earnings during this period would not have been significantly less than in the years immediately before 65. The appellant therefore has failed to establish that this verdict was one which no reasonable jury could have awarded. In my opinion the appeal fails and I would propose that it be dismissed with costs. Samuels JA I agree. Clarke JA I also agree. The order of the Court is the appeal is dismissed with costs. Appeal Dismissed. Counsel for the Appellant: B GROSS QC and R GAMBI Counsel for the Respondent: P SEMMLER Solicitors for the Appellant: WILLIAM K CHAMBERS Solicitors for the Respondent: TURNER FREEMAN PARRAMATTA