COSTAIN AUSTRALIA LTD v GILMORE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 15 April 1992, 15 April 1992 [1992] NSWCA 46 APPEAL from District Court — Judgment follows trial before judge and jury — Damages awarded by jury $70,000. DAMAGES awarded by jury to include economic loss and general damages — Analysis of amount which jury could have awarded for economic loss — On that basis, Court of Appeal should not conclude amount awarded for general damages was excessive. DEFENDANT negligent in causing plaintiff's loss of hearing by noisy operations - Liability for damages not in issue. ORDERS - Appeal dismissed with costs. Mahoney JA The plaintiff in these proceedings, Mr Gilmore, has sued the defendant for damages in negligence. The basic cause of action on which the plaintiff claims is the negligence of the defendant in allowing the plaintiff to work in circumstances which resulted in a measure of deafness in him. The plaintiff was a person who worked, as the jury might well conclude, in a labouring capacity. He was still working for the defendant at the time of the trial. The claim that he made was for compensation for loss of amenity (using that word in the compendious sense with which the courts are familiar) and loss of economic capacity. On 22 June 1989 following a trial by a judge and jury in the District Court an assessment was made of his loss at $70,000. The learned judge added an amount of $13,066 by way of interest, making a total sum of $83,066. He deducted workers' compensation payments and entered judgment for $80,739. The defendant has appealed to this Court against the judgment which has been entered. Mr Curtis, for the defendant, has submitted essentially that the amount awarded by the jury, namely $70,000, is beyond the range of what was open to the jury to award on the evidence that was before it. In order to consider the submissions that have been made - and Mr Curtis, though putting the matter briefly, has said everything that can be said for the defendant - it is necessary to consider the components of the verdict, that is, the losses by reference to which the jury came to assess the plaintiff's verdict. In order to do this it is necessary to refer briefly to the evidence that was before the jury. The plaintiff had worked prior to 1972 generally in what the learned judge described as a labouring capacity. That will be a sufficient description of it for present purposes. A short history of the plaintiff's working life was set forth by the judge in his summing-up to the jury. In 1972 the plaintiff commenced work with the defendant. By 1974 the evidence indicated that the plaintiff had commenced to suffer hearing loss. It may well be that he had suffered this loss because of the nature of the work which he 2 UNREPORTED JUDGMENTS was doing. He was required to work in the context of machinery which was noisy and to the extent of being very noisy. He had a test for hearing loss in 1976 and details of the test were before the court. Subsequently he became more conscious of the difficulties that he was experiencing and in the end steps were taken in order to cope with the difficulties. The plaintiff commenced his proceedings in 1985. Because of the Statute of Limitations he was, as is I think agreed, entitled to claim damages only for the loss which he had suffered because of the defendant's negligence back to July 1979. The learned judge referred in his summing-up to the date 19 July 1979. The position then was that the plaintiff had, prior to that date, suffered some loss of hearing and for that it was accepted he was not entitled to recover in the present proceeding. He was claiming for the loss which had occurred between July 1979 and July 1985 when he commenced his proceeding. The plaintiff gave evidence as to the effect of the hearing loss upon him. There were in evidence details of the audiograms which had been taken and the learned judge in his summing-up referred to these and placed the precise figures before the jury. The plaintiff gave evidence of the extent to which the loss of hearing acuity had affected him. He referred to difficulties in the ordinary social matters such as conversation, listening to the radio and television and otherwise. He referred in particular to the difficulties which had arisen in his relationship with his wife and to the arguments or disagreements which had taken place as a result of these. It is, I think, not necessary to expand upon the detail of what had occurred. The nature of his difficulties may, I think, be readily inferred from the fact that his hearing loss had depreciated significantly. The question before the jury was in the end - I put aside the issue of liability which is not now in question - to assess appropriate compensation for the loss which the plaintiff had suffered. The jury was called upon to include in the assessment two matters to which, in particular, the learned judge referred and to which I have adverted, namely, the economic loss which the plaintiff may well have suffered and, secondly, the general damages by way of loss of amenities of life. The jury returned a global verdict of $70,000. The question is whether that verdict is such that it is, within the principles established for this Court, beyond the range which it was open to the jury to give. In order to answer that question it is necessary first to consider what it was open to the jury to find in respect of loss of economic capacity. It is accepted, and the principles are not in issue in this appeal, that this Court must approach the jury's assessment upon two bases (I put the matter in general terms but without the appropriate qualifications): that the jury made all the findings of fact which were open to them in favour of the plaintiff; and that it was open to them to give the maximum sum which could be given within the bounds of a proper discretionary judgment. On this basis it is necessary to consider what the jury could have awarded for economic loss. More accurately the award is, of course, an overall award for the loss of economic capacity. It is, as the judge described it, an award for "loss of income-earning capacity". The position was that the plaintiff continued to work for the defendant up to the date of trial and there was nothing in the evidence which suggested the existence of an immediate intention of the defendant to terminate the plaintiff's employment. But, as the learned judge pointed out to the jury, they were entitled URJ COSTAIN AUSTRALIA LTD v GILMORE (Mahoney JA) 3 to take into account the possibility that his employment might be terminated or he might decide, for some appropriate reason, to leave the employment of the defendant. The learned judge said: "... You see it's suggested that if he was to lose his job or if for some reason he was to leave Constains (sic) employment then he'd have difficulty getting other employment. We know his educational background. You'll remember that he was rather deprived in that regard you may think. It's a matter for you but you may think that seems to be the - position that he left school at a very early age. He indeed stayed at Boystown presumably because he was more or less abandoned but be that as it may he had some schooling but didn't reach a very high standard indeed..." His honour referred to his work history and said: "... He's really a labourer. I suppose people who have been labourers can be stewards in clubs. It was suggested you remember that he might have problems with being a steward in a club where there was a fair bit of noise and therefore he'd have hearing problems..." It was against the background of directions generally of that kind that the jury came to assess compensation for loss of economic capacity. (Compensation for loss of economic capacity had been claimed both in the particulars of claim filed by the plaintiff and in the particulars which he had given prior to the trial). It is difficult, of course, to assess precisely what is the order of compensation to be given for a loss of this kind. The plaintiff was in employment. The compensation would take into account the possibility, though, of course, by no means the certainty or even the probability, that he was to lose his employment with Costains. The jury might well have taken into account the possibility that following the proceeding he would be terminated in his employment. It might take into account the possibility I think that, suffering from the difficulties from which he suffered, if a retrenchment of staff were to be undertaken by the defendant he might be one of the first to go. It may well be that the defendant without attributing any moral blame to it might see it appropriate to terminate, when termination was necessary, those who were not fully capable for the work that the defendant required employees to do. But however that be, it was necessary and appropriate for the jury to take into account that possibility. If the plaintiff did lose his employment or if from his own wish for some appropriate reason he left the employment then he would have difficulty in securing other employment, affected as he was by the degree of loss of his hearing. It may well be that a person suffering injuries of this kind would have more difficulty obtaining employment than a fully fit and in particular a fully fit younger person. These were all matters that the jury had to take into account. It follows that they would be required to form some assessment of the length of time during which the plaintiff might be out of employment if he lost his employment with Costains. The jury would have to take into account also the amount of money which uninjured he would have continued to earn and the amount of money which, if he were able to find work as a steward, he would be able to earn. There was, as Mr Curtis emphasised, no evidence before the jury to assist them in the quantification of these matters. They were entitled to take proper notice of those matters of which judicial notice and perhaps jury notice can be taken. Some assessment had to be made of approximate wage loss in order to assess compensation for the loss of economic capacity. I have said that it "had to be made": at least it was appropriate for the jury to make it. 4 UNREPORTED JUDGMENTS In order to make some estimation of the amount of such loss it is proper to take into account that the plaintiff was at the time of trial aged fifty-four years. If it be assumed that uninjured he would have continued subject to proper vicissitudes to work until age sixty-five then a period of say ten years or something more would be taken as the basis of assessment of his loss. A loss of $100 per week over ten years capitalised on the three per cent tables would produce an amount of $45,200. At five per cent it would produce an amount of $41,300. Discounting that amount for, on the one hand, the vicissitudes with which the court is required to deal in the ordinary case and discounting it also by reference to the kinds of possibilities and contingencies to which I have referred, that is, the possibilities in relation to the security of his employment and whether he would lose his employment at all, it is possible to infer that the measure which the jury might have adopted for compensation of loss of economic capacity was by no means small. The jury might well have taken into account sums of $20,000 or perhaps even $30,000 accordingly. It is not necessary for me to arrive at any firm assessment of these matters. It is sufficient to say that the amount which the jury could take into account was on that measure substantial. T have referred only to the amount of $100 per week. Of course the jury could, in my opinion, have taken into account a sum significantly greater than that. They might well have taken into account the figure (and I do not hold Mr Curtis responsible for this figure as it was referred to only in passing in address) of some $400 a week as being the median wage level within the community at the present time. If something greater than $100 a week were taken as being the measure of loss for this purpose, then it is easy to see that the amount available to be awarded by the jury by way of compensation for loss of economic capacity would be substantial. It is against the background of such a conclusion that it is then necessary to come to the main point to which Mr Curtis referred. He submitted that the amount of compensation to be awarded by way of general damages must be in the circumstances of this case relatively moderate. He referred to the fact, as I have said, that prior to July 1979 the plaintiff had already suffered loss of hearing for which he was not entitled to compensation in the present proceedings. There was before the jury some measure of the difference in the hearing loss between, for example, 1974 and 1979 and at various times. The jury were able, I think, to arrive at appropriate assessments of the loss but it is rightly to be observed that the totality of that loss cannot be attributed to the period after July 1979. Notwithstanding this, the loss that had occurred since 1979 would be not insubstantial. Taking into account what I have said in relation to economic loss, and looking at what the jury might well conclude in relation to the loss of hearing of the plaintiff, I am not able to conclude, at least more accurately I do not think it is proper to conclude, that the jury must have included in their verdict for general damages an amount which was beyond the range of the amounts which they could legitimately award. I do not think that the matter can be clarified beyond what I have said. In the end it is for the defendant to satisfy this Court that the jury awarded a wrong amount or otherwise that the trial miscarried. Having regard to the amounts which could have been awarded and the view which the jury could have taken both of economic loss and the amounts for which general damages are awarded, URJ COSTAIN AUSTRALIA LTD v GILMORE (Clarke JA) 5 I am not satisfied that there has been a mistrial or the technical misconduct of the jury upon which the defendant must rely. In my opinion, therefore, the appeal should be dismissed with costs. Kirby P I agree. Counsel for the defendant opened his economical but well-framed argument with a reference to the concern which was apparently felt by those advising the defendant about the ramifications, in a town such as Muswellbrook where the instant trial took place, if the jury's verdict of $70,000 in this case were sustained. The suggestion was, as I took it, that other juries, knowing generally of the verdict recovered by this plaintiff, might be tempted to bring in similar verdicts in other cases. In my opinion such a consideration would not be a proper one for this Court to take into account in reviewing the verdict given in this case. So much was, I think, ultimately conceded for the defendant. The jury's verdict in this case must be judged in the way Mahoney JA has explained, by measuring it against the evidence which it was open to the jury to accept. It should not be assumed that this verdict will provide any guide whatsoever to the proper verdict in other cases. Each case is separate and different. The comparison of verdicts by reference to apparently like cases is not permitted to this Court. See Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. It is also forbidden to juries. So far as reliance by a jury on general knowledge of this verdict is concerned, it should not be assumed that a jury in another case, even one involving like disabilities, would fail to conform to its oath. That oath requires the jury to decide the matter strictly according to the evidence adduced before it. It cannot be said too strongly that it would be wrong for a jury, on different facts, to take into account the verdict recovered by Mr Gilmore here. No doubt in any future trial in Muswellbrook, bearing superficial similarities to this one, the judge, on application of the defendant or on his or her own initiative, would direct the jury to put entirely out of mind any general damages which might be gleaned concerning the recovery of verdicts in other cases including this. It should not be assumed that the jury would act impermissibly or contrary to law. I agree with the order proposed. Clarke JA I agree with Mahoney JA. Kirby P: The orders of the Court are, accordingly: The appeal is dismissed. The appellant (defendant) must pay the respondent (plaintiff's) costs. Counsel for the appellant: JP CURTIS Solicitors for the appellant: SPARKE HELMORE AND WITHYCOMBE Counsel for the respondent: JK O'REILLY QC/PM SEERY Solicitors for the respondent: MAURICE MAY and CO