SYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, KIRBY P and COLE JA 8 September 1995 [1995] NSWCA 465 APPEAL — jury verdict — second appeal — disputed facts concerning causation of back disability — whether causally related to operation following subject work incident — whether constitutional weakness bound to manifest itself — second jury returns verdict alleged to be appealably inadequate — complaint of misdirection by trial judge — no objection or request for redirection to jury at trial — judge withdraws schedule earlier tendered for plaintiff — schedule contains sums appropriate only to resolution of factual dispute favourable to plaintiff — possibility that schedule misleading — complaint that withdrawal prejudiced plaintiff — held: (1) In the context the judge's remarks were fair and accurate; (2) No substantial wrong or miscarriage was shown; (3) Accordingly, appeal based on alleged misdirection dismissed. Kirby P. Before the Court is an appeal from a judgment entered by Barr AJ following a jury verdict. The background facts can be briefly stated. The appellant, an Australian Aboriginal of limited education whose jobs involved labouring and work as a farm assistant, was employed by the respondent as a sawmiller. He was employed in that capacity for many years before he suffered injury on 17 June 1985. He had a experienced a history of back problems. However, these were described as muscular in nature or a result of a fracture to the upper part of his back. He performed heavy and arduous duties for the respondent. There was no suggestion that he was having time off work or having any other difficulties in coping with his employment in the period immediately prior to the accident of 17 June 1985 upon which he sued. The accident involved the lifting of a heavy flitch of timber. In the circumstances, the matter went for trial on damages only. It is unnecessary for this Court to describe the circumstances of the injury in detail. The matter came for trial twice in the Supreme Court. The first occasion was before a jury of four in a trial over which Loveday J presided. On 31 July 1992 that jury in that trial returned a verdict in favour of the appellant in the sum of $715,000. It was common ground in the appeal to this Court from the judgment which followed that verdict, that the general damages upon which the jury musthave proceeded was of the order of $330,000 in order to reach the verdict of $715,000. On 26 July 1994, this Court ordered a new trial of the appellant's entitlement to damages limited to quantum. That trial took place before Barr AJ. The second jury returned in a verdict of $265,000. Pursuant to that verdict, judgment was entered for the appellant on 27 April 1995 in the sum of $198,652 (allowing for workers" compensation payments). It is from that judgment that the appellant has appealed to this Court. I pause to reflect upon the enormous disparity between the judgment entered by the first jury and the judgment entered by the second jury. It indicates something of the disparity and inconsistencies of treatment which has occasioned 2 UNREPORTED JUDGMENTS anxious questioning about the appropriateness of jury trial which is nonetheless maintained in actions of this kind which involved complicated calculations. Such complications can sometimes lead to errors which this Court is called upon to correct. As the facts revealed in the trial demonstrated, shortly after the subject accident the appellant underwent a spinal fusion of the LS S 1 disc level. At the time of that fusion various radiological examinations were undertaken. The view was expressed that, before the operation, the L5 disc was stable. It was appropriate and proper for Dr Isaacs, in those circumstances, to carry out the fusion of the LS S 1 level. Post-operatively it was revealed clinically and radiologically that there was a prolapse of the L4/5 disc. It was common ground that the accident had led to the fusion. However, a major dispute at the trial concerned the causative link between the appellant's incapacity at the time of the trial and beyond, and the incident at work on 17 June 1985 for which he had sued the respondent. The appellant relied on the reports of radiologists, the oral evidence of Dr Thompson, the oral evidence of Dr Isaacs, his operative surgeon, and a report of Dr Miller to support the link. He was also entitled to rely on common sense and the chronology of his problems. The respondent, on the other hand, relied heavily on the evidence of Dr Morris. Although he was not a radiologist, he disagreed with the report andopinions of the radiologist just called for the appellant. He expressed the view that there had been a pre-existing degenerative condition which was not the result of the applicable work injury but the consequence of the appellant's physiological make up. The respondent relied upon Dr Morris" evidence to suggest that, at some time, the appellant would have had to have had an operation in any event, ie, even if he had not been injured in the course of his employment in the accident upon which the appellant sued. There was, therefore, posed to the jury a classical jury question upon which the verdict of the jury, as the constitutional tribunal summoned to determine disputed issues of fact, was to be taken. At the initiative of the respondent, each side at the trial presented calculation sheets which were placed before the jury. They contained certain out-of-pocket expenses and earning rates which were agreed. As this appeal has been narrowed for determination, the issue for resolution in the appeal concerns the direction which Barr AJ gave in respect of one such sheet. I should say that the original notice of appeal raised seven grounds of appeal, including a ground that the decision of the jury at the second trial was perverse. However, when the appeal was called on, those grounds of appeal, save for the seventh, were all abandoned. Instead, the appellant proposed three grounds of appeal, each concerned suggested misdirections to the jury by Barr AJ. As to the first two, the Court earlier in the proceedings ruled that not having been reserved at the trial for the appellant and having regard to the applicable principles, the Court would not permit those grounds to be argued. The appellant was thus confined to ground 7 in the original notice of appeal. The Court then proceeded to hear argument on that ground. The reasons for the earlier ruling of the Court were given at the time of that ruling and I will not repeat them. The seventh ground of appeal relied upon by the appellant reads: 7. His Honour erred in directing a jury not to use the plaintiff's calculation (crib) sheet. The facts relevant to this ground are as follows: UBYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2] (Kirby P) 3 There was an agreement between the parties as to the wages that theappellant would have been earning if he had remained in employment with the respondent. Both parties placed before the jury schedules of calculations to assist the jury in assessing the appellant's entitlement to damages. Barr AJ permitted the respondent to do this, although initially the appellant objected to that course. His Honour directed that the respondent should also be permitted to put a schedule before the jury on the basis that the appellant would be permitted to do the same thing. Although that schedule did not appear in the appeal papers, a document, which it was agreed by the parties was the schedule that had been placed before the jury, was handed to this Court. It is clear that that document was used by counsel for the appellant and referred to by counsel for the respondent in their respective addresses to the jury. So much was not disputed in the appeal. Counsel for the appellant during his submissions provided the schedule, which is in the form of a document divided into four categories. I set out in these reasons the form of the schedule: General Damages. Pain and suffering ) Loss of enjoyment of life ) as assessed Loss of amenities of life ) Past Economic Loss. Part 1 1. Net wage of Newell's Creek as at 18/6/85 = $238 pw Net wage at Newell's Creek today = $361 pw Time since accident 505 weeks Sub total = $151,373 plus Part 2 2. Oyster sticks if $25 pw $12,625 if $50 pw $25,250 if $75 pw $37,875 Sub total = as assessed Future Loss. In 18 years Mr Syron will reach 65 years of age. For each $1 per week allowed 728.4 as the multiplier. Part 1 $361 x 728.4 $262,952 plus Part 2 4 UNREPORTED JUDGMENTS 2. $25 x 728.4 = $18,210 $50 x 728.4 = $36,420 as assessed Past Out of Pocket Expenses $13,406.09 Future Out of Pocket Expenses as assessed.' Barr AJ referred to the provisions of the schedule when directing the jury with respect to loss of wages to the date of the trial. When referring to damages for 10 future wage loss, his Honour again referred to the appellant's schedule. Indeed, he did so repeatedly. He described the use of multipliers. The transcript reveals that counsel for the respondent made submissions relating to the use which might be made of the appellant's schedule. I now reach the part in the appeal papers which gives rise to the complaint of 45 the appellant under the seventh ground of appeal relied on. Barr AJ returned to the question of the schedule when he was giving his final directions to the jury. He advised the jury they should take 'care in your use of the schedules provided by counsel'. That was an entirely proper direction. The danger of the provision of a schedule, such as that which I have included above, 20 is that a jury might assume that their sole function was to fill in the allotted blank spaces in the schedule, accepting the argument of the sub-totals which are there provided upon the hypotheses being advanced for the appellant. But these hypotheses were hotly contested at the trial by the respondent, with support from Dr Morris. 25 ~The following is the passage in Barr AJ's charge to the jury which is complained of: The second thing is this that I have been asked to remind you in Mr Shore's schedule that these two periods which he sets out and the calculations based on them are alternative submissions. You do not add one to the other if you are going to use this one. 30 Im fact, I think the substance of Mr Shore's submission is that whatever period you allow, even if you are against him and allow something for life, Mr Shore would be saying to you that you are going to have to compensate the plaintiff for a split period, a period stretching from the time of the injury to a date within a reasonable time after the fusion to allow for proper convalescence and that Mr Shore, I think, would say to you it would be a full rate of incapacity and thereafter he says light duty so he has 35 actually a split period. Bear those things in mind, please, if you are going to use the one provided by Mr Goodridge. In fact, I invited you to use it but on second thoughts that might be a bit dangerous and I would suggest that perhaps you don't use that document at all. By all means, use the material in it but this might give the impression that you are bound to use the kind of examples in coming to your verdict that are set out in this 40 document. Mr Maconachie QC, who has argued this case with appropriate vigour on behalf of the appellant, has suggested that the above direction given by Barr AJ not to use the document at all was a misdirection. He says that, in its context, it diverted the jury from the proper use of the schedule which had been provided 45 by the appellant's then counsel. In effect, it left the jury solely with the schedule provided by the respondent's counsel. This, it was suggested, was the explanation for the very low verdict which, it is claimed, the jury returned unfavourable to the case being advanced for the appellant. I have given due consideration to this argument. I should say that I consider 50 that the verdict which was returned by the jury in the second trial is low. I, myself, looking at the facts would almost certainly have reached a conclusion, on UBYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2] (Kirby P) 5 the continuity of the appellant's symptoms, different from that which the jury appears to have reached. I therefore approach the consideration of the appellant's argument with a degree of sympathy. I do so even though the argument relating to perversity of the jury's verdict has (rightly, I consider) not been pressed upon the Court. If there were any proper way in which I could come to the conclusion that the jury'sverdict was the product of a misdirection, I would provide the relief which the appellant seeks. But I cannot. The statement made by Barr AJ was not the subject of any complaint at the trial by counsel there appearing in the interests of the appellant. No application was made for a redirection. Although this is not necessarily fatal to the complaint before this Court, it is repeatedly said that the appellate courts must weigh objections of the kind that are put in this appeal bearing in mind that a statement by a judge in a charge to a jury has to be understood in its context and not in isolation. The person most likely to notice a misdirection in the context of a trial is the legal representative vigilantly attending to the directions of the judge. Other redirections were sought. But no redirection was sought on the passage which is now complained of. In my opinion, that is fully explained by the fact that, in the passage quoted, Barr AJ was merely indicating the dangers which could be experienced by the use of the schedule prepared on behalf of the appellant. The danger is self-evident from the form of the document which I have reproduced. Two sub-totals are shown for past economic loss and future loss. Together these would have made the economic loss component a verdict of the order of $300,000. However those subtotals were completely contradicted if the jury were to accept the argument being advanced for the respondent upon the footing of Dr Morris" evidence. The danger which his Honour obviously foresaw was that the jury, considering the schedule as more than a tool in its decision making, might find their attention diverted from the essential factual question which was posed for their decision. That was the danger that his Honour was obviously expressing in the closing passage to which I have referred. When Barr AJ said that the jury should not use the document, he nonetheless went on to invite the jury to use the material in it. His directions in this regard were, in my opinion, impeccable and perfectly fair. Therefore, seen in context, I cannot characterise the phrase which, taken out of context, might sustain an argument, in the way which counsel urged. The ultimate duty of the Court is to safeguard against a miscarriage of justice. The relief that the appellant sought was a retrial. This Court could not, in this case, have provided a recalculation because the case depended so much upon impressions of the truthfulness, accuracy and recall of the appellant and of the other witnesses. The Court's function in appeals of this kind where a complaint of misdirection is made is stated, relevantly, in Pt 51 r 16 SCR That rule enjoins the Court not to order a new trial on the ground of misdirection unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned. Even if, contrary to the view that I have expressed, there was a misdirection in the passage in Barr AJ's charge, enjoining the jury not to use the document at all, I would not consider that a substantial wrong or miscarriage has been occasioned thereby. I could not conclude that the outcome of this trial depended upon such a small consideration. That conclusion would forbid me from proposing that the appeal should be allowed. 6 UNREPORTED JUDGMENTS This was the second time the appellant's case has come to this Court. That itself is a reason for caution. But it is not necessarily reason alone for refusing relief. Third trials are sometimes ordered: see Harding v Willman (1964) 82 WN (NSW) (Pt 1) 205. Sometimes, even a fourth trial will be ordered, as it was in the celebrated case of Hocking v Bell (1945) 71 CLR 430. But in this appeal I do not consider that a third trial is warranted by the sole remaining argument which has been advanced today. For that reason I propose that the appeal be dismissed with costs. Gleeson CJ. I have formed no view as to the adequacy of the verdict of the jury in this case. Subject to that clarification, I agree with the President as to the way in which we should deal with the sole remaining ground of appeal. I would add only the following brief observations. The danger that concerned Barr AJ is reflected in two sentences in the directions now the subject of complaint. In one of those two sentences early on in the directions his Honour said, in relation to the schedules provided by counsel: Please understand they are only intended to be a help. It is not as though you are required to tick the right one. A little later he said, in relation to the schedule provided by counsel for the appellant: In fact I invited you to use it but on second thought that might be a bit dangerous and I would suggest that perhaps you don't use that document at all. By all means, use the material in it but this might give the impression that you are bound to use the kind of examples in coming to your verdict that are set out in this document. In other words his Honour was concerned that the jury might infer from the documents that they were being presented with a range of choices and were limited in their choices to those set out in the documents. Where in the course of a direction to a jury in a civil or criminal trial a trial judge makes an observation, which when later read appears ambiguous or capable of giving rise to a misunderstanding, it is often important to note that the trial counsel made no complaint about it, and no request for clarification or redirection. When that occurs it is a powerful indication that in the atmosphere of the trial, and having regard to the manner in which the judge expressed himself, trial counsel saw no danger of misapprehension by the jury. That consideration, it seems to me, applies with great force in the present case. As [ have said, I agree with the orders proposed by the President. Cole JA. I also agree with the orders proposed by the President and the reasons, subject that I make no comment in relation to the question of quantum of the jury verdict, that not being a matter upon which any submissions have been raised from the parties. I also endorse the remarks of the Chief Justice. Gleeson CJ. The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J E Maconachie QC Solicitors for the appellant: Firths Counsel for the respondent: H G Shore \RYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2] (Gleeson CJy Solicitors for the respondent: Hunt and Hunt