FRANCICA v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and CRIPPS JJA. 5 November 1992, 5 November 1992 [1992] NSWCA 71 JURY — ASSESSMENT OF DAMAGES — UNREASONABLE VERDICT — NECESSITY OF NEW TRIAL — SHOULD NEW TRIAL BE LIMITED OR ON ALL ISSUES The appellant was injured at work and claimed from his employer in negligence. The jury found for the appellant but awarded him only $6,040.75, which after an adjustment under s63 of the Workers Compensation Act 1987 resulted in a judgment for the respondent. The respondent conceded that there should be a new trial, and the only issue argued on appeal was whether the new trial should be limited to assessment of damages or be on all issues. Held: (1) The jury having accepted that the respondent was liable in damages to the appellant, its assessment was so unreasonable as to require a new trial. (2) As the issues of liability and damages were not completely separate, the new trial should be on all issues: Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586 at 602. Workers Compensation Act 1987 Suitors' Fund Act 1951 Alchin v Commissioner for Railways 35 SR (NSW) 498 Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586 Sheller JA This is an appeal from a verdict and judgment returned and entered by a jury before Rolfe AJ (as he then was) on 8 March 1989. The plaintiff appeals from the decision as it relates to assessment of damages, and in the form of the notice of appeal as to his Honour's failure to discharge the jury and order a new trial, and his Honour's direction to the jury on the issues of negligence and damages. As a result of questions put to the jury, his Honour noted that "the jury has returned a verdict for the plaintiff in the sum of $6,040.75 made up of wage loss from the date of the accident to [the date of the verdict] of $3,471.20 and general damages from the date of the accident to this date of $2,569.55". An adjustment was made pursuant to the provisions of s63 of the Workers Compensation Act in an amount of $40,279.38, with the result that there was judgment for the defendant. Before the matter came on for hearing before us we were informed that the respondent to the appeal and defendant conceded that the appellant was entitled to a new trial, and the only issues to be argued by the parties would be whether that new trial should be limited to the assessment of damages or whether it should be on all issues, and the matter this morning has proceeded on that basis. It has, of course, been pointed out that despite this concession it is still a matter for us as to whether or not there should be any form of new trial. The background facts can be stated for present purposes briefly. The appellant alleged that on 13 August 1979 he was one of four men attempting to install a steel sway bar onto a railway carriage. He alleged that he was assisted by three men; the foreman was Identified as a Mr McDonald. The appellant said that he was in a pit, and demonstrated a situation in which he was standing on his toes 2 UNREPORTED JUDGMENTS holding a sway bar up with one hand whilst the others inserted bolts in order to attach the bracket onto which the sway bar was mounted to the carriage. He said that he asked a question, "Everything's all right?" and one of the other employees said, "Yes". The appellant then let the bracket go and it fell on top of his wrist. After the accident Mr McDonald went to the scene and saw the sway bar hanging there. He conceded, in the course of his evidence, that it could have fallen and hit the plaintiff. He also said that he accepted the plaintiff's story. Apparently, prior to this accident the appellant had been involved in at least one other accident in which he fractured his left arm. There was also evidence of some degeneration in his arm from this earlier fracture. Following upon the accident on 13 August 1979, the appellant underwent a number of surgical and manipulative procedures and also physiotherapy. He alleged - and the respondent disputed - that he had developed what is called a conversion disorder which Dr McMurdo, who was called on his behalf, related back to the original injury. In disputing this disorder, the respondent relied mainly upon film said to have been taken shortly prior to the trial. It is conceded on behalf of the appellant that his credit was attacked by the respondent, not only in relation to the conversion disorder but also in relation to whether or not the appellant could be described as, or indeed had acted in a way which suggested he was, a malingerer. For some time after the accident the appellant returned to work, and he apparently ceased work on 22 December 1980. At the trial evidence was given by the appellant, and as to pain and suffering by a number of witnesses who had known him over a period of years and had observed him after the accident and also by two medical practitioners and a person involved in rehabilitation. The defendant called a psychiatrist, tendered some documentary exhibits and called Mr McDonald. There was also called another witness, the investigator who prepared the video film. There was considerable cross examination of the plaintiff as to the circumstances surrounding the incident which he alleged had caused his injury. None of the employees who were working in the pit with the appellant was called either on his behalf or by the respondent, and some play was made of this both before his Honour and also before us in terms of the application of the rule in Jones v Dunkel. In my view - and this is conceded, as I have said, by the respondent - the jury's verdict, if it accepted that the respondent was liable in damages to the appellant, was irrational and unreasonable to the point that requires a new trial at least on the question of damages. I think it is unnecessary to examine this in any detail. It appears that out of pocket expenses were agreed. There could be no doubt that if the defendant/respondent were liable some amount should have been awarded by way of general damages for pain and suffering. Despite what his Honour said in the passage that I quoted in referring to the nature of the jury's verdict which led to the judgment that his Honour entered, it is by no means plain, in fact extremely doubtful, whether the jury in fact awarded anything for general damages. However that may be, the amount and circumstances of the verdict are such that I have no doubt that, at least to that extent, the matter calls for a new trial. The question in issue is whether or not that new trial should be limited to the issue of damages. Mr Hall QC, who appeared for the appellant, provided us with very helpful written submissions and developed his submissions in favour of the limitation to a new trial on damages only in a full, frank and helpful way. In particular, he URJ FRANCICA v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Cripps JA) 3 referred to a passage in the judgment of Jordan CJ in Alchin v Commissioner for Railways 35 SR (NSW) 498 at 514 in which his Honour said: "A general new trial is undesirable unless it is reasonably plain that justice cannot otherwise be done." In my opinion, we should approach the matter - indeed, are bound to approach the matter - in accordance with the general rule as it is stated in the judgment of McHugh JA sitting as a member of this Court in Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586 at 602. His Honour there said: "The general rule is that an order for a new trial should be on all issues: Pateman v Higgin (1957) 97 CLR 521 at 527. A new trial on one issue is the exception. When the issues of liability and damages are completely separate, as they frequently are in personal injury cases, it is often proper to order a new trial limited to damages. Indeed new trials in personal injury actions limited to damages are now commonplace. But the large number of such cases should not cause us to lose sight of the fundamental tule that a new trial should usually be on all issues." It seems to me, then, that the appellant was faced here with showing that the issues of liability and damages are completely separate if he were to satisfy us that the new trial should be limited to damages. The appellant's credibility was an issue in the trial on the issues of both liability and damages. There can, I think, be no doubt about that from the direction of the cross examination of the appellant concerning the events surrounding the accident and from the substantial challenge that was made at the very least on the question of the hysterical conversion and malingering. That being so, it seems to me inevitable that the issues of liability and damages cannot be treated as completely separate. Even if one takes the statement of Jordan CJ as being another way of stating the same rule, this is a case in which during the trial challenges were made to his Honour's rulings, and indeed at one point submissions were made that the jury should be discharged and at another point that his Honour's summing up should be withdrawn. While I appreciate that these applications were made on behalf of the appellant, and it is submitted here that, if they had any force, despite that force the jury's verdict was in favour of the appellant, I think that those matters, in the circumstances of the case as a whole, point to its being reasonably plain that in this case justice cannot be done unless there is a new trial on all issues. For those reasons, I would propose that the appeal should be upheld, that the verdict and judgment below should be set aside and that the proceedings should be returned to the Common Law Division for the trial. It would seem to me to be an appropriate consequence of this that the costs of the first trial should abide the second and that the respondent should pay the appellant's costs of this appeal. Meagher JA I entirely agree with the judgment of Sheller JA. Indeed, I would go one step further. It seems to me the jury's verdict was, on any view, wholly irrational, reflecting a decision to which no sane person could come. In the circumstances it must follow that there should be a new trial on all issues. Cripps JA I agree. Sheller JA has referred to the appropriate authorities. Quinn v Rocla Concrete Pipes Ltd, particularly the observations of McHugh JA, contains the test which we are to apply. In the present case there were hotly contested issues on liability and damage. 4 UNREPORTED JUDGMENTS The plaintiffs credibility was central to both issues. It is plain the jury must have rejected the plaintiff's credibility on the question of damages. It would seem to me that there is a strong inference of compromise in the case. I agree that the appeal should be upheld and that there should be a new trial on all issues. MEAGHER JA: Mr Wilkins, we have made an order against you as to costs, have we not, without hearing you? WILKINS: I do not want to be heard on that, your Honour. I do ask for a certificate under the Suitors' Fund. CRIPPS JA: Can you get a certificate? Are you qualified? WILKINS: I think we are. CRIPPS JA: You are qualified because you are a statutory corporation, are you not? WILKINS: Yes. MEAGHER JA: The orders of the Court, therefore, will be the orders proposed by Sheller JA together with an order that the respondent have a certificate, if it is entitled, under the Suitors' Fund Act. 1. Appeal upheld. 2. Verdict and judgment below set aside and the proceedings be returned to the Common Law Division for a new trial. 3. Costs of the first trial should abide the second and respondent pay the appellant's costs of this appeal. 4. Respondent to have a certificate if it is entitled under the Suitors' Fund Act 1951. Counsel for Appellant: GB Hall QC/P Hallen Solicitor Appellant: VP Tsolakis Counsel for Respondent: RF Wilkins Solicitor for Respondent: GD Brown