METRO MEAT (COOTAMUNDRA) LTD v RICARDO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy ACJ, MAHONEY AP and CLARKE JA 19 October 1993, 2 November 1993 [1993] NSWCA 179 DAMAGES — jury verdict — whether unreasonable and excessive — verdict of $560,000 for injury to eye of meat slicer aged 38 years — causes double vision, headaches and dizziness — effectively unemployed after injury — good pre-injury work record — linguistic and other employment limitations. held: (1) An appellate court considering a jury's verdict for alleged excess must consider the whole of the evidence in the case to determine whether the verdict is such that reasonable jurors could not have reached it. Hocking v Bell (1945) 31 CLR 430; Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 applied; (2) The trial judge's directions to the jury were unchallenged and reflected the evidence and submissions of the parties. They provided a rational and reasonable explanation of the jury's verdict. Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 (CA) considered; (3) Upon the hypotheses reasonably open to the jury, the verdict was not unreasonable nor excessive. PRACTICE and PROCEDURE - jury verdict - alleged excess - failure to challenge judge's directions - directions accurately reflect evidence and submissions - jury's verdict sustained, upon one view of the case, reflected in the directions - held: Verdict not so unreasonable or unjust as to authorise appellate intervention. Calin v The Greater Union Organisation Pty Ltd (1991) 153 CLR 33 applied. JURY - verdict - appeal against - observations by Kirby ACJ on similarity between principles applied in the review of verdicts of civil juries and those of criminal juries - duty of appellate court to examine the whole of the evidence - duty of court to reach its own independent opinion - whether jury could reasonably conclude, as it did, upon the evidence established at trial. Morris v The Queen (1987) 163 CLR 454, 462 discussed. Kirby ACJ This appeal involves a challenge to a jury's verdict upon the basis that the verdict, and the judgment which followed it, are appealably excessive. A meat slicer suffers injury to his eye Mr Francisco Ricardo (the respondent) was a migrant to this country from East Timor. His first language is Portuguese. He came to Australia as a refugee after the troubles in East Timor in 1975. He soon obtained work as a labourer. He established a family comprising his wife and two sons. He worked with fair continuity performing various duties in several abattoirs. In 1981, he commenced work with Metro Meat (Cootamundra) Ltd at their abattoir in Cootamundra. He was engaged as a meat slicer. According to his evidence, during the time he was in Australia, moving about and chasing work, he was out of work for only about six months. He had no troubles with his right eye. On 18 March 1983, in the course of his employment for the appellant, the respondent was slicing beef when he slipped on a slippery substance on the floor near where he was working. This resulted in a loss of control of the knife with 2 UNREPORTED JUDGMENTS which the respondent was working. It entered his right eye. It caused laceration and shock. It resulted in a loss of vision of the eye, diplopia, astygmic refractive error, an injury to one of the tendons in the area of the eye, dizziness and headaches. The respondent commenced proceedings against the appellant for damages at common law and for breach of duties imposed by the Factories, Shops and Industries Act 1962. The proceedings took a very long time to come to trial. Ultimately, however, on 27 April 1992 the trial commenced before Studdert J and a jury of four. It continued ova three days, at the end of which Studdert J summed up to the jury. There was no relevant request, at the conclusion of his Honour's summing up, for any redirection. There is no challenge in this appeal to the accuracy or fairness of the summing up. Specifically, it is not asserted that his Honour in any way gave the jury any misdirection on the law. The jury returned a verdict in favour of the respondent. They found their verdict in the sum $560,000. With interest, judgment was entered in the sum of $564,560.14. The appellant was ordered to pay the respondent's costs. The appellant has now appealed to this Court against the judgment. In the notice of appeal, grounds were raised challenging Studdert J's decision to allow the statutory counts to be placed before the jury and his Honour's refusal to allow the appellant to rely upon an estoppel allegedly created by the determination of certain worker's compensation proceedings. These two grounds of appeal were, however, abandoned in the hearing of the appeal. This Court has only been concerned with the objections to the amount of the jury's verdict. The grounds challenging the judgment on this footing were expressed in the usual terms, viz that the verdict was perverse, excessive and such that no jury, properly instructed, could have come to it. The nature of the injury and disability The evidence as to the respondent's injury was accurately summarised by the appellant as follows. It involved an injury to the right eyebrow area, involving a laceration to one of six muscles governing the efficiency of the right eye. The laceration caused scarring around the superior oblique muscle of the right eye and around the sheath of that muscle. The trochlea (described as a little pulley through which the muscle passes) was also injured. The scarring involved tethering. This was explained as having the effect of impeding the action of the muscle as it slides through the "pulley". The result was that the muscle would not easily release, as in nature it was intended to do. The scarring or tethering resulted in the eye being unable to be moved by the corresponding muscle underneath the eye, upwards and inwards. As a consequence of the injury so described, the respondent suffered double images because the vision of his two eyes was not correctly aligned. One effect of this constant double vision was headaches. These were explained as resulting from discomfort and strain on the muscles caused by the respondent's endeavour to exert control over his impaired vision. On behalf of the respondent, Dr T Playfair explained that the muscle itself might not have been cut but that infection and scarring around it may have had the consequence of imprisoning it. The exact pathology matters not. The existence of double vision, headaches and dizziness was not seriously in dispute. Dr BJ Landsell, who re examined the respondent on 20 February 1992, noted a change in his problems with double vision. The respondent was now complaining of such vision in all positions of gaze. Dr Landsell attributed this URJ METRO MEAT (COOTAMUNDRA) LTD v RICARDO (Kirby ACJ) 3 development to further scarring and tethering around the injured right muscle, altering the position of the eye when it was focussed on a field straight ahead. The medical evidence for the appellant was generally in line with the respondent's medical evidence. Nothing significant turned on the differences. In his evidence, the respondent said that he was not able to cope with his pre injury job. He had cut his hands a few times. When asked why, he said this was because "I see two things " Q: You see two knives? A: Yes, two knives. " He stated that he had been unable to find a job since the accident and had been placed on the invalid pension in September 1988. Nevertheless, he had "gone around" looking for jobs "all around" the area in which he lived. "Q: What do you do when you go around to those factories? A: I went there to ask them, see if they can get a job for me. I told them I got eye injury, I get headaches and dizziness, and they say no." Dr Landsell stated that the respondent was not suitable for work involving fine movements of the hands; work in proximity to machinery; work at heights going up and down ladders; work involving reading or extensive driving of motor cars. "Q: What could he do? A: Well, with regard to the last question, if he wore a patch that may be one situation where he would avoid the double vision and he could hold a driver's licence and he would be able to drive a normal car. He could do tasks that did not require fine motor control, that did not require specific eye movements such as a labourer with a pick and shovel or a gatekeeper or some situation where he was not required to be using his eyes in a constant specific sense. " So far as the headaches were concerned, Dr Landsell agreed that "people learn to live with them". They did not necessarily go away. But people adjust. "Q: Your comments in relation to what this man could do from an eyesight point of view, double vision point of view, do they take into account the degree of headaches that he may be suffering whilst doing those tasks? A: No. " The respondent's total wage loss to the date of the trial was $171,376.32 upon the footing that he was effectively unable to obtain employment because of his subject injury and disabilities. At trial, the respondent, through his counsel, claimed that full amount. By inference, he did so upon the basis that with his disabilities (including the headaches), his linguistic disadvantages and relatively confined employment skills, in the current and past economic environment, he was effectively unemployable. The appellant, at the trial, naturally urged to the contrary. It pointed to Dr Landsell's evidence as to work capacity if the respondent wore a patch over the affected eye. It pointed to the range of labouring and other work he could perform. It suggested work in gardening or as a storeman, or driving a vehicle, as many one eyed people are able to do. This clash of submissions presented an issue of fact for the jury to decide. An analogous issue of fact was presented in respect of the future prospects of the respondent. He was 38 years of age at the trial. Thus, if it were assumed that he had intended to work to the age of 65 years, he had about 27 years of hypothetical employment in front of him. If it were assumed for some reason that he would only have worked to the age of 60, he had 22 years These were the various hypotheses which were the subject of submissions at the trial. After counsel's addresses, Studdert J summarised the submissions for the parties in his summing up in these terms: 4 UNREPORTED JUDGMENTS "[Counsel] on behalf of the plaintiff; urges you to find that the plaintiff has really not been capable of doing any work since this accident other than for the period that he did and that he should be entitled to most if not all of what the comparable earnings have been. The parties agreed and you were told that if the plaintiff had remained working as a meat slicer working week in and week out ever since the day of this accident or rather ever since the day that he stopped work, he would have earned $171,376.32. You might call it $170,000... [counsel] says you ought to give the plaintiff all that or at the very least $150,000, allowing for the fact that if this accident had not happened there might have been times when he could not get work as a meat slicer. [Counsel for the defendant] on the other hand says, well that is an outrageous claim, particularly bearing in mind the medical evidence here as to the plaintiff's ability to do work which he has not put to use. " As I have stated, there was no objection to his Honour's directions to the jury. It was not contended that his Honour should have withdrawn the first of the passages stated above upon the grounds that it would be unreasonable in law for the jury to award the respondent the full amount of his loss of earnings between the injury and the date of the trial. Or that there was no evidence at all to sustain the submission. The matter was left to the jury. If the jury accepted the primary submission of the respondent, they would have been entitled to start their computation of the respondent's verdict (liability being established) with $170,000. So far as the future was concerned, Studdert J explained the respondent's duty to mitigate his loss but also his entitlement to have compensation for the loss of earning capacity. He said: "[Counsel] puts to you that this plaintiff will not work in the future, that he has been rendered totally unemployable by this accident, not only for the past but for the next twenty seven years as well to the age of sixty five, and one set of figures he gave you invited you to compensate him for a loss of $490 odd per week, that being what meat slicers are presently earning, from now to age sixty five. That got you up to somewhere near $500,000, I think, on some figures that [counsel] put. [He] ought not be criticised for putting his client's case as forcefully as he can and that may or may not appeal to you as being the proper approach to the assessment of proper damages in this case, but [counsel for the defendant] says that would be giving the plaintiff far, far, far too much, and here again is an area where you have got to apply your commonsense. " It was urged for the appellant that meat slicers do not work beyond the age of 50 years. Accordingly, the respondent was entitled to be compensated only for the twelve years to the age of 50. Allowing for the conventional discount of 15%, the various computations upon assumptions of total incapacity, if the jury so concluded, would be as follows: (1) $490 net per week X 970.60 (27 years to age $475,594.00 65) Less 15% $404,254.00 (2) $490 per week X 844 (22 years to age 60) $413,560.00 Less 15% $351,526.00 (3) $490 per week X 527.2 (12 years to age 50) $258,328.00 Less 15% $219,578.00 URJ METRO MEAT (COOTAMUNDRA) LTD v RICARDO (Kirby ACJ) 5 Having regard to the various hypotheses by which the jury's verdict could be tested and to consideration of the verdict by the standard of reasonableness and by reference to the whole of the evidence at the trial, the appellant submitted that the verdict went beyond the bounds of reasonableness and authorised this Court to intervene to set it aside. The respondent resisted these submissions. He argued that the verdict, although arguably high, was well open to the jury upon various hypotheses which the jury had been invited to accept, which had been put to the jury without objection by Studdert J and which had not been contended at the trial to be outside the support of the evidence adduced at the hearing. The relevant principles The principles applicable to the resolution of the appellant's claim were not in doubt: (1) The Court is obliged to approach the verdict upon the assumption that all relevant factual disputes were reasonably resolved by the jury in favour of the respondent; (2) Testing the verdict against the resolution of the issues in dispute, favourable to the respondent, the Court is nonetheless bound to perform its own function. But it may not disturb the verdict unless "the jury, viewing the whole evidence reasonably, could not properly find it". See Hocking v Bell (1945) 71 CLR 430 at 487; (3) An appellant is only entitled to succeed if it can show that "the evidence so preponderates against the verdict as to show that it was unreasonable and unjust". See The Metropolitan Railway Company v Wright (1886) 11 App Cas at 152; (4) To judge whether the evidence preponderates so strongly, as asserted, the Court must look at the evidence in its totality. To disturb the jury's verdict it must be convinced that the verdict is such that reasonable jurors could not reach it. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41; (5) Where a party has failed to seek a direction, relevant to a complaint about a verdict, that failure is not necessarily fatal. But it is a material matter to be taken into consideration in the exercise of the appellate court's jurisdiction. See Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 (CA) 524; Calin, 39. Pertinent to the last point, the respondent suggested that it ill behoved the appellant to complain to this Court concerning hypotheses which were argued at the trial and put, without complaint then or now, in the trial judge's summing up. No re direction having been sought, it could scarcely be complained that the jury acted unreasonably if it accepted the submissions of the respondent's counsel and gave effect to such conclusions in their verdict. Both parties were content that the Court should approach the general damages to which the respondent was entitled by assuming that approximately $100,000 was allowed for this item. If that is so, upon the respondent's case advocated at trial by his counsel and put to the jury, without objection, by Studdert J, the verdict at its highest could be: (1) Loss of earnings to trial $170,000.00 (2) Future loss of earnings (being $490 net per $404,254.00 week X 970.60 ie 27 years to age 65) less 15% (3) General damages $100,000.00 (4) Less Fox v Wood medical expenses $ 8,000.00 6 UNREPORTED JUDGMENTS TOTAL $666,254.00 Reduced to verdict of $560,000.00 Discussion and conclusion There was some debate before the Court to suggest that Calin adopted a more active role for appellate supervision of jury verdicts than had previously been the law. Thus, it was urged that the Court should not content itself with examining various hypotheses upon which the jury's verdict could theoretically be sustained. It should, instead, consider the matter realistically, reflecting upon the evidence as a whole and considering only those hypotheses which, in the evidence, were reasonable. I do not believe that Calin adopts a new test. There is, perhaps, a slightly larger emphasis upon the duty of the Court to consider the evidence in its totality. The High Court in Calin, at 41, gives emphasis to that phrase. But at 42 the Court points to the fact that a similar phrase had been used by Starke J in Hocking v Bell (at 499). It is worth noting that the duty imposed upon the Court, in the review of the jury's verdict in a civil case, is expressed in terms that resonate with the language used in respect of a Court of Criminal Appeal's duty in reviewing independently the whole of the evidence in a criminal case to see whether it can be said that no reasonable jury could have reached the verdict and a reasonable jury ought to have reached a different verdict. Cf Morris v The Queen (1987) 163 CLR 454, 462. In Morris (loc cit) Mason CJ observed: "Tn performing the function which is discussed in the passage just quoted, the Court of Criminal Appeal is deciding a question of fact. So much clearly appears from the judgment of the Court (Dixon CJ, Fullagar and Taylor JJ) in Raspor v The Queen (1958) 99 CLR 346 at 350 and Hocking v Bell (1945) 71 CLR 430 at 497. When 'the court performs this duty, it is not deciding a question of law; it is supervising or reviewing the findings of a tribunal of fact' to use the words of Dixon J in Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643." A similar function which exists in the civil and criminal appeals in reviewing what I might neutrally call the acceptability of the verdict may be noticed without pushing the analogy too far because of the duty of special vigilance which must be observed in an appellate review of jury verdicts of guilty in criminal trials. The point to be made is that the Court is not, as such, retrying the case in the place of the jury. It does not have the advantages which the jury had in hearing and seeing all of the witnesses and observing the evidence unfold. The court's role is that of preventing an injustice, despite the apparent observance at the trial of all the forms and the inability of the party complaining to point to a particular misdirection or legal error. Of course, in civil appeals as in criminal appeals, different verdicts will strike different judicial observers in different ways. In the end, it may be impossible in either case to reduce the ultimate leap of the mind to judgment to a simple formula or an easy explication. What is involved, ultimately, is a matter of judgment and assessment calling upon experience, a close study of the whole of the evidence of the case in hand and the generalised recollection of other cases which add up to the experience of the appellate decision maker. Conclusion and orders URJ METRO MEAT (COOTAMUNDRA) LTD v RICARDO (Clarke JA) 7 Applying the foregoing tests, I cannot say that this verdict is so high that this Court should intervene. It would have been far from unreasonable, for the jury in the case, to have allowed the respondent $100,000 for general damages and $150,000 for past economic loss. He had a good pre injury work record. He chased work around the country. He had a young family and every motivation to keep working. But his work skills were limited. His injuries were, for such a person, profoundly significant both in physical and economic terms. The jury would know the economic difficulties which have existed since the respondent's accident to the date of the trial. They might well have taken a cautious view concerning his economic future. If they did, the foregoing allowance requires that the respondent explain an hypothesised sum of about $300,000 for the future loss of economic capacity. It would have been quite unreasonable in this case to have assumed that the respondent would not have worked to age 65 when he would qualify for a retirement pension. Even if he could not work as a meat slicer past age 50, his disabilities would be relevant to the kind of work which he could perform in the general labour market. Upon this footing, it would be far from unreasonable for the jury to have allowed the respondent something for 27 years of disability by way of double vision, headaches, dizziness and the like. Reducing the $490 net per week to say $350 and allowing for the conventional 15% discount, an allowance for loss of economic capacity of $300,000 is easily met. All of the foregoing calculations assume a degree of precision in the calculation of the respondent's verdict which the general verdict of the jury masks. Studdert J considered the submissions made to the jury for the respondent at the trial. He was not asked to withdraw that part of his summing up. No appeal was advanced on the footing that it was inaccurate or wholly unsustained by the evidence. The determination of the factual dispute voiced by the respective counsel for the parties and reflected with apparent accuracy in his Honour's charge was a matter for the jury. Applying to the jury's verdict the test of reasonableness, in the light of the whole of the evidence, I am unconvinced that the verdict was so unreasonable as to entitle this Court to conclude that it was "unreasonable and unjust". It is certainly more than I would have awarded the respondent. But not so much more as to call rationality and reasonableness of what the jury did into question. Upon the hypothesis of a very gloomy estimation of the past and future earning capacity of the respondent, the jury's verdict was entirely rational and reasonable. In my view the appeal from the judgment which followed the verdict must be dismissed. The appellant must pay the respondent's costs. Mahoney AP I agree with the judgment of Kirby ACJ and with the orders proposed. Clarke JA I agree with Kirby ACJ. Appeal dismissed with costs. Counsel for the Appellant: PM Hall QC and GP George Instructed by: Stacks Counsel for the Respondent: RJ Burbidge QC and RV Letherbarrow Instructed by: Hunt and Hunt