KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and SHELLER JJA 9 March 1995, 4 April 1995 [1995] NSWCA 238 DAMAGES — inadequacy — jury trial — duty of appellate court to view the evidence in its entirety — whether verdict against the evidence — presentation of conflicting medical evidence — whether room to compromise in the evidence and whether jury's verdict and judgment should be set aside and retrial ordered — risk of quadriplegia — held: (by maj): Judgment sustained. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 appld. DAMAGES — jury verdict — inadequacy of — review by appellate court — duty to consider entirety of evidence — presentation of alternative medical evidence at trial — defendant's medical witness rejects plaintiffs claim of serious injury plaintiff's medical witnesses assert serious physical and psychological injuries — plaintiff's witness asserts possibility of development of quadriplegia for which substantial verdict would be required — jury, by inference, rejects defendant's witness' opinion — returns verdict of $300,000 for which judgment entered — no complaint about directions by the trial judge (Hunt CJ at CL) — whether, in the whole of the evidence, the jury's verdict is inconsistent with the evidence and is against the weight of the evidence — held: (Mahoney JA and Sheller JA; Kirby P dissenting): There was evidence upon which the jury could have accepted a view of the plaintiff's condition between that primarily urged by the witnesses for the plaintiff and the defendant — upon that basis the verdict was not, viewing the evidence in its totality, against the weight of the evidence — accordingly the judgment should not be disturbed — observations by Mahoney JA on the necessity to avoid the encroachment upon the right of a jury, civil or criminal, to deliver a verdict which, on the evidence, is open to them. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Morris v The Queen (1987) 163 CLR 454; Nair v Health Administration Corporation and Anor, Court of Appeal (NSW), unreported, 16 December 1994; [1994] NSWJB 146; Francis v ICI Australia Operations Pty Ltd, Court of Appeal (NSW) unreported, 2 March 1995; [1995] NSWJB 18 applied. Kirby P This is an appeal from a judgment which Hunt CJ at CL directed should be entered following a verdict of a jury. The issues to be resolved in the appeal are whether the verdict by the jury was manifestly inadequate and, if so, whether this Court should set it aside and order a retrial. A JURY RETURNS A LOW VERDICT IN AN EMPLOYMENT NEGLIGENCE CLAIM The facts in the case are as follows. The appellant (Mr Raymond Keremelevski) was employed by Payless Superbarn (NSW) Pty Ltd (the respondent) as a "night filler" at the respondent's premises in Taren Point. On 26 August 1981, while at work, the appellant was instructed by a fellow employee to lower the rear platform of a semi-trailer parked in the loading dock of the respondent's premises. As he attempted to lower the platform, it swung down suddenly, striking him on the head and then on the shoulders. He was forced backwards. He fell over a wall into an empty garden area. He suffered severe injuries to his head and body. 2 UNREPORTED JUDGMENTS During the course of the trial, the respondent admitted that the accident had been caused by its negligence. Therefore the only issue upon which the jury had to deliberate was the appropriate level of damages payable by the respondent to the appellant. Following the accident the appellant worked for a short time only. From May 1986 until April 1987 he worked with the TNT company, although he was off work for a period of two months during that period. He was initially employed as a security officer and was required to carry around bags of coins. However he claimed that this work caused him a great deal of pain. This pain forced him to take two months off work. He tried some other types of employment within the TNT company. However he eventually left the company, according to his evidence, because of the pain which he was suffering, and the associated stress. The extent of the appellant's injuries was, of course, central to the determination of the level of damages payable to him. The appellant called two expert witnesses, Dr Warwick Stening, a neurosurgeon, and Dr Anthony Hordern, a psychiatrist, to support his case. The respondent called Dr John Matheson, who is also a neurosurgeon. There was a fundamental difference between the witnesses concerning the appellant's continuing disabilities. The appellant claimed to have been incapacitated by the accident and to have remained incapacitated from that time. The respondent argued that any incapacity which might have existed after the accident had disappeared. The respondent conceded past wage loss up to April 1987. However it argued that that date should represent the cut-off point, that is that any compensable incapacity had disappeared by that date. Dr Stening saw the appellant a number of times. He first saw him in early 1982, and then over the ensuing years. He stopped seeing the appellant for a period. However, he then began to see him again after Mr Keremelevski had been working for the TNT company. Initially, Dr Stening thought there was no physical basis for the appellant's complaints of pain. However in 1988 he changed this opinion quite markedly. This change was influenced by advances in medical technology which had occurred since he first saw the appellant. Dr Stening gave evidence that the severe headaches and pain which Mr Keremelevski claimed to suffer from were, in his view, the result of injuries to his spine caused by the subject accident for which the respondent admitted liability. According to Dr Stening there was objective evidence of a derangement of two of the discs (the C5/6 and C6/7 discs) in the appellant's neck. The derangement of the C5/6 disc was causing pressure upon a nerve root sheath (the C6 nerve root). Dr Stening based this conclusion on numerous elements of objective evidence. First, the development of degenerative condition in the appellant's spine, which was demonstrated by an X-ray in 1986 (although it had not been apparent in 1981). Secondly, there was evidence provided by a myelogram taken in 1988 and magnetic resonance imaging (MRI), which, so Dr Stening testified, confirmed objectively the derangement of the discs. Thirdly, there was the absence of tendon reflexes, a fact consistent with damage to the C6 nerve root. Finally, the appellant had complained of pain and numbness radiating down to his thumb. This reaction was characteristic of a problem with the C6 nerve root. It is important to observe that the absence of reflexes was noted, and the appellant complained of the pain and numbness in his thumb, before anybody knew that there might be a problem with the C6 nerve root level. URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Kirby P) 3 As to the future, Dr Stening testified that there was some likelihood that the appellant's condition will deteriorate and lead, eventually, to quadriplegia. Sheller JA has extracted the full passage in the evidence. In his evidence, Dr Stening said that, if the injuries to Mr Keremelevski's spine did deteriorate, he would strongly recommend an operation, notwithstanding the risks involved in such a procedure. The frightful alternative of quadriplegia would drive him to attempt such a radical solution, notwithstanding the risks. This is clear from his testimony. When asked by the appellant's counsel why he would recommend surgery if he noticed symptoms of spinal cord compression, Dr Stening replied: "He could develop quadriplegia from the disease he has if he is not operated on. It changes the relative risks of non success and further damage. It makes them much less relevant in that situation." During cross-examination, counsel for the respondent sought to clarify the actual risk of deterioration, and subsequent quadriplegia: "Q. Deterioration of the condition is, I would suggest at this stage, is no more than a possibility? A. It is a bit more than a possibility. We have to quantify what the word possibility means. He has a condition which has an ongoing degenerative component of it. It is a form of osteoarthritis so I would say it is more of a probability than a possibility - if we define probability as being more than 50 per cent." Dr Hordern testified before the jury as to the psychological impact of the accident suffered by the appellant. He gave evidence that the appellant suffered from severe depression, and that there was no real prospect of a resolution of that depression. The depression was related to the interference in both work and the leisure activities in which Mr Keremelevski formerly engaged, as well as the particular frustration which he felt from the time of the accident until the much later time at which his precise injury was first diagnosed. Dr Hordern testified that this frustration had given rise to feelings of injustice and anger. He did not think that the completion of the litigation would lead to any great lifting of the cloud of depression which currently hung over the appellant at the time of the trial. The evidence of Dr Matheson stood in direct contrast to the medical evidence presented to the jury by the appellant. As Hunt CJ at CL said in his summing-up "He met the plaintiff's case head on at every turn". Dr Matheson claimed that there is nothing to support the appellant's claim after April 1987. He testified that, at his most recent examination of the appellant, he had come to the conclusion "that there was no residual disability from [the appellant's] injury in 1981". Moreover he agreed during cross-examination with the proposition that "there is nothing wrong with [the appellant] arising out of the accident...". That, in a nutshell, was Dr Matheson's opinion urged upon the jury. The contrast was a stark one. In his evidence Dr Matheson also stated that there could not be any injury to the plaintiffs C5/6 disc without a pre-existing degeneration of the disc or fracture. Since it was accepted that there was such degeneration or fracture in 1981, immediately after the accident, Dr Matheson concluded that the accident could not have caused any trauma to the appellant's spine. Dr Matheson challenged each of the findings which had led Dr Stening to conclude that the accident had injured the appellant's spine. He rejected the proposition that the 1986 X-ray showed degeneration of the spine, notwithstanding the views of both Dr Stening and the expert radiologist. He 4 UNREPORTED JUDGMENTS stated that he never accepted any radiologist's view and always makes up his own mind. However Dr Matheson did concede that the MRI and the myelogram taken in 1988 showed degenerative changes. He attributed this to a natural process of degeneration which normally becomes apparent around the age of forty-five. The appellant was twenty-eight years of age in 1988. Dr Matheson was not absolute in this opinion. He said that he could not fully exclude the possibility that the degenerative condition was initiated by the accident in 1981. Nevertheless he stated that the extent of the degeneration was, in his view, insignificant. His basic view was that the appellant has a very small claim indeed. With respect to the C6/7 disc, Dr Matheson considered that the image produced by the MRI was misleading because of a computer anomaly, an "artifact". When he was asked why the expert radiologist would not have performed the MRI again if there had been such an error, Dr Matheson stated that he would be prepared to disagree with the radiologist's view. Dr Matheson considered that the appellant had deliberately deceived Dr Stening by voluntarily suppressing his reflexes during the tendon reflex test. He also considered that the appellant was not genuine in his complaints over the pain and numbness in his thumb. If this opinion were correct, Mr Keremelevski would have to have known how to simulate the symptoms of a C6 nerve root injury. Moreover, these reactions were observed by recorded medical observation before the problem with the C6 nerve root had been diagnosed and the injury fixed at that level. Not only would the appellant be engaged in a daring design of medical deception. He would be required to evince an advanced level of medical knowledge. It is readily apparent from the above that the appellant and respondent presented to the jury strikingly different evidence concerning the extent of the appellant's injuries. The jury were faced with two accounts of the appellant's disabilities which were almost wholly inconsistent. They returned a verdict of $300,000 in favour of the appellant. This was adjusted to $287,972 after allowing for workers' compensation already paid and interest. Mr Keremelevski has appealed to this Court against the size of this verdict, He claims that his damages should have been in the vicinity of $700,000. Therefore the question for this Court is whether it is authorised to set aside the judgment entered following the verdict of the jury. No misdirection by the trial judge is alleged. Indeed, the appellant made no objection at all to the summing up by Hunt CJ at CL. But it is claimed that the jury's verdict was wholly inconsistent with the evidence presented in the trial. THE PRINCIPLES GOVERNING APPELLATE REVIEW OF JURY VERDICTS The principles to be applied by an appellate court in reviewing the decision of a jury in a case such as the present are in no doubt. I discussed them in Francis v ICI Australia Operations Pty Ltd, unreported, Court of Appeal (NSW), 2 March 1995; [1995] NSWJB 18. See also Nair v Health Administration Corporation and Anor, Court of Appeal (NSW), unreported, 16 December 1994; [1994] NSWJB 146. There is no need to re-iterate these principles at any length. I will limit this discussion of them to the approach to be taken by an appellate court when the argument is presented that the verdict is against the weight of the evidence. The jury's reasoning is unknown to the Court. As Lord Denning MR said in Ward v James [1966] 1 QB 273 at 301, the verdict of a jury is "as inscrutable as the sphinx". See also Morgan v John Fairfax and Sons Ltd (1990) 20 NSWLR 511 (CA) at 521, per Samuels AP. As was said in the context of a criminal jury, URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Kirby P) 5 an appellate court simply "cannot know how a jury collectively and individually came to the verdicts publicly pronounced.": see R v Savvas, 55 A Crim R 241 at 277. Absent a special verdict, the same is true of a civil jury. Nonetheless, this does not mean that this Court cannot examine the jury's verdict to consider whether it is wholly unreasonable or unjust. This Court would be abdicating its function if it failed to scrutinise verdicts for this purpose. As the High Court has said (in the context of an evaluation of decisions by trial judges sitting alone) an appellate court "cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions": see Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 at 480 per Deane and Dawson JJ, citing The Glannibanta (1876) 1 PD 283 (CA) at 287. In the case of a civil trial, conducted before a jury, the appellate court must weigh the conflicting evidence in the course of performing its function of testing the acceptability of the verdict when it is challenged. When approaching the question of whether it will overturn a jury's verdict on the basis that it is against the weight of the evidence, an appellate court must display a considerable degree of caution. The principles to be applied were explained by the High Court in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41. There Mason CJ, Deane, Toohey and McHugh JJ said: "The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence IN ITS TOTALITY preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach." The majority in that case emphasised the strength of the case which the appellant must make before a jury verdict will be overturned upon the basis that it is against the evidence: "... As Starke J noted, 'the verdict is not disturbed unless the jury, viewing THE WHOLE OF THE EVIDENCE reasonably, could not properly find it' (emphasis added). [Hocking v Bell (1945) 71 CLR 430 at 487]. The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that 'the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust'. [Metropolitan Railway Co v Wright (1886), 11 App Cas, at 155]". In Metro Meat (Cootamundra) Ltd v Ricardo, unreported, Court of Appeal (NSW), 2 November 1993; [1993] NSWJB 115, I discussed the proposition that the approach laid down by the High Court in Calin involved a somewhat more active role for appellate supervision of jury verdicts than had previously been understood to be the law. I rejected that assertion. The decision in Calin does not enunciate a new test, although there was perhaps a slightly stronger emphasis in that case upon the duty of the Court to consider the evidence in its totality. It is useful to draw an analogy, although only a limited one, between the role of the appellate court in this type of review in civil cases, and the role of a court of criminal appeal in ensuring that a jury verdict does not lead to a miscarriage of justice. As I said in Francis, at 4, this mechanism acts in both the criminal and civil contexts as: "'a failsafe function designed to deal with the exceptional case where, although all of the forms have been observed, lawful directions given and proper procedures followed, the resulting verdict is so strongly out of harmony with the evidence as to demand appellate disturbance." THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE 6 UNREPORTED JUDGMENTS Can it be said that the evidence in this case IN ITS TOTALITY so preponderates against the jury's verdict so as to make that verdict unreasonable to the extent that this Court would be permitted to set aside the judgment which followed the verdict? The argument presented on behalf of the appellant relied on an assumption that the jury had rejected the evidence of Dr Matheson. So much was clear (indeed it was substantially agreed to by the respondent) Therefore, it was argued, the verdict could be tested by reference to the only other medical evidence left, namely that evidence given by Dr Stening and Dr Hordern. The respondent agreed that the jury had not accepted the basic theory about the appellant's condition presented by Dr Matheson. However, the respondent argued that the jury was entitled to, and in fact did, adopt an intermediate position between the views of Dr Stening and Dr Hordern on the one hand, and Dr Matheson on the other. It was submitted that the evidentiary basis for this intermediate position lies in the fact that Dr Matheson agreed, at one point in his evidence, that the accident might have aggravated a pre-existing derangement, and that this aggravation might have led to some diminution in the appellant's residual working capacity. This claim is grounded on two very brief episodes during the examination-in-chief and cross examination of Dr Matheson: "Examination of Dr Matheson... Q. Is it possible that these [degenerative] changes may have ben initiated by the accident? A. I could not fully exclude that possibility. Q. Would you place any restriction upon his capacity to perform work at present? A. I place little restriction on it. He may have difficulty in prolonged heavy physical work. ... Cross-examination of Dr Matheson... Q. So if this man had degenerative changes present at the age of 21 this accident could have caused a disc lesion? A. It could have made it worse, yes. Q. Could have made it worse? A. Or could have made it symptomatic." The appellant argued that, viewing the evidence at the trial in its totality, this intermediate position was simply not reasonably open to the jury, and that the better view was that the jury rejected Dr Matheson, relied on the evidence of Dr Stening and Dr Hordern only, but misunderstood such evidence or compromised in the view taken of it. It was submitted that the evidence of Dr Matheson, viewed fairly and in its totality, was so extreme, so absolute, that it could not realistically and honestly support a midway position. In examining this issue it is necessary to go back to the test laid down by the High Court in Calin. The High Court states that an appellate court must consider the totality of the evidence in a case such as the present. The appellate court must examine the evidence presented in substance. It should not merely pick up fragments of the material introduced during the trial. Two responses in 17 pages of transcript certainly represent only the smallest fragments of the totality of the evidence presented by Dr Matheson. This Court must examine these fragments to see whether they are consistent with the substance of the witness' evidence, viewed as a whole, ie in its totality. When viewed as a whole, the evidence given by Dr Matheson does appear to paint a rather extreme picture. When examined in its totality, it is clear that Dr Matheson's basic position, the position from which he consistently argued, was that the appellant's spine was not injured at all in the accident. The witness' URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Kirby P) 7 statements, relied upon by the respondent in the appeal, quoted above, must be viewed in this context. It is clear that the recorded statements were conceded only very reluctantly. They are really out-of-step with the overwhelming bulk Dr Matheson's of evidence. They are not fairly indicative of Dr Matheson's evidence viewed in its totality. Hence there could, in my view, be no truly intermediate position between the evidence presented by the doctors in the opposing camps. At the least, it would not have been possible for the jury to accept an intermediate position to sustain what appears to be the compromise verdict returned. The appellant's spine was either injured by the accident, or it was not. If it was not, the verdict should properly have been much less than $300,000. But if it was, against the risks of quadriplegia, the verdict should have been much more. The appellant was entitled to have damages of a substantial order allowed against the possibility of quadriplegia. I summarize my conclusions. The jury rejected Dr Matheson's basic approach. That was conceded by the respondent. The award of $300,000 could clearly not be justified on that approach. Thus, since there was no true intermediate approach realistically or properly available to the jury in the evidence at the trial viewed as a whole, once they rejected Dr Matheson's extreme view that Mr Keremelevski's spine was not injured in the subject accident, the only evidence left to them was that of Dr Stening and Dr Hordern, ie that the appellant was seriously injured and would remain substantially incapacitated for the rest of his life. Of course, a jury is authorised to select between the evidence presented by the parties, and accept parts of each. However in the way in which this trial was conducted that approach was not properly available here. Once the jury had rejected the evidence of Dr Matheson, there was no rational or just basis upon which the evidence presented by the other doctors could properly be rejected. The award of damages had then to be premised on an acceptance that the appellant was seriously injured in the accident, has been substantially incapacitated since that time, and would be so into the foreseeable future, and that he faced more than a possibility, indeed more of a probability, of quadriplegia unless he were to undertake an expensive, risky and even dangerous operation in the future. There is no doubt that it is necessary to provide for this type of possibility in a case such as the present: see Medlin v State Government Insurance Commission (1995) 127 ALR 180 (HC). Was an award of $287,972 damages sufficient in the light of these facts. I think not. The damages awarded to the appellant were manifestly inadequate in light of the jury's rejection of Dr Matheson's testimony. In the course of oral argument before this Court the respondent suggested that the award of $300,000 could be justified as consisting of an allowance of $100 per week for future wage loss and $40,000 for the risk of quadriplegia. Alternatively the respondent suggested a figure of $150 per week for future wage loss. These are clearly inadequate amounts to compensate someone who has been substantially incapacitated and who now faces a serious possibility of quadriplegia. The jury, viewing the whole of the evidence reasonably, could not properly have brought in such a verdict. Put simply, this was not a conclusion which reasonable jurors could properly have reached. I entirely agree that courts should interfere as little as possible in judgments based on jury verdicts. They should respect the verdicts of juries. But this Court is also obliged to discharge its lawful function. In a case such as this, exceptionally, it is required to set the judgment aside which is based on the verdict shown to be against the weight of the evidence, viewed in its totality. ORDERS: THERE MUST BE A RE-TRIAL 8 UNREPORTED JUDGMENTS The only course open to this Court is to order a re-trial limited to the question of damages. This is unfortunate in light of the fact that well over 13 years have elapsed since Mr Keremelevski was injured. Nonetheless, it is clear that the evidence presented in this case cannot justify the verdict returned by the jury. This Court cannot re-assess for it has seen none of the witnesses. A new trial must be had. I propose the following orders: 1. Appeal allowed; 2. Set aside the judgment entered by Hunt CJ at CL pursuant to the jury's verdict; 3. Direct a re-trial limited to the question of damages; 4. Confirm the orders as to costs made at the trial; 5. Order the respondent to pay the appellant's costs of appeal. Mahoney JA On 26 August 1981 the plaintiff was injured during his employment with the defendant. In 1986 he brought proceedings against the defendant in negligence. The defendant admitted liability. In July 1992, upon a trial before his Honour Justice Hunt CJ at CL and a jury of four, a verdict was found for the plaintiff for $300,000. After adjustments in respect of worker's compensation payments, judgment was entered for $287,972. The plaintiff has appealed to this Court against that judgment. The grounds of appeal as filed are three: that the trial judge "erred in failing to direct the jury that the competing evidence as to the appellant's medical condition was such that it was irreconcilable, so that either the appellant's medical evidence was accepted in its entirety or the respondent's medical evidence was to be accepted in its entirety"; that the jury "erred in attempting to adopt a 'middle approach' between the competing medical evidence"; and that the award of damages "was manifestly inadequate". In order to understand the submissions made by Mr Donovan QC for the plaintiff, it is necessary to refer briefly to the evidence. At the time of the accident, the plaintiff was employed by the respondent as a "night filler", a person whose duties included stacking goods on shelves in the defendant's supermarket. At the time of the accident he had, it was said, been crouching, operating a lever on the lower side of a truck for the purpose of operating its tail-gate. The plaintiff's case, as the learned trial judge put it to the jury, was as follows: "The plaintiff told you that the gate from the side of the truck hit him on the back of his head, or it could have been on the side of his head (he really did not remember), and then on both shoulders as his head slipped through the vertical bars, and that he was caused to fall over a two to three feet wall, landing in a ditch with the gate still on top of him and flat on his back." Following the accident, the plaintiff was taken home; he did not go to hospital. On the following day he consulted his general practitioner Dr Sjarif. Subsequently x-rays were taken. He did not return to work with the defendant thereafter. The plaintiff did not work again until 9 May 1986. He then commenced work as a truck driver and pay-roll deliverer with TNT Armoured Car Division. He continued in that employment until 27 April 1987. He said and it was, I think, accepted that he was absent from that work for some two months upon a complaint of pain and his case was that during the period of work he continued to suffer pain and disability. Notwithstanding this, he did work which involved the work of a truck driver and the carrying of bags of coins and the like. If his URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Mahoney JA) 9 condition was as he claimed it to be, this was work which Dr Warwick Stening said at the trial he should not have been doing. After he ceased working with the TNT company, he did not work again. It is important to have clearly in mind what were the differences between the parties as they emerged at the trial. This is so having regard, in particular, to observations made at the trial and the submissions made to this Court in relation to the medical evidence. The plaintiff had suffered a substantial injury: he was hit on or about the head by a gate from the side of a truck. This caused him both pain and incapacity. The defendant accepted that, between the date of the accident, 26 August 1981, and 1987, the plaintiff had suffered both some pain and some incapacity. As the trial judge said in his summing-up, the defendant "accepted that the plaintiff is entitled to his wage loss up to the middle of 1987". The issue - at least, one of the substantial issues between the parties - was whether in that accident the plaintiff had suffered damage to his cervical spine. The portion of the spine which he claimed was injured was that at C5/6. The suggestion emerging from the medical evidence was that "the injury to the C5/6 disc" was pressing against the C6 nerve". In the course of the case, inter alia three questions emerged: what was the state of the plaintiffs neck in 1987 and thereafter; was that condition brought about by the 1981 accident; and (if it was) to what extent did it affect the plaintiff and his capacity to work. The plaintiff, in his evidence, suggested that he had suffered serious pain and incapacity from the time of the accident and that that condition had continued to the date of the trial. His contention was that the accident had done physical damage to his cervical spine at the relevant place and that it was that damage which was essentially the cause of the pain and total incapacity of which he complained. The defendant's case was that the plaintiff was not suffering from the pain and incapacity of which he complained, that his complaints were not "genuine" and that he had lied when stating the signs and symptoms of which he complained. The defendant's case was that, insofar as there was a degeneration of the cervical discs in question, that had occurred not because of the accident but by normal processes. The plaintiff's case was supported by a consultant neurosurgeon, Dr Warwick Stening, and, to an extent, by a psychiatrist Dr Hordern. The defendant's case was supported by a consultant neurosurgeon, Dr John Matheson. At the trial, in a summing-up to which no relevant objection was taken, Hunt CJ at CL left the relevant issues to be decided by the jury. The effect of his summing-up was that the jury could decide the issues upon either of two bases. First, they could decide the issues simply by choosing between the two doctors; they could accept either Dr Stening's evidence or Dr Matheson's evidence. Dr Stening favoured the view that the accident had damaged the cervical vertebrae, that that damage caused pressure on a nerve root, and that that pressure produced symptoms which caused the plaintiff effectively total incapacity. Dr Matheson thought that, for the reasons to which I shall refer, the accident had not damaged the cervical spine and that the plaintiff was not incapacitated. The judge left open to the jury a second basis. This involved that the plaintiff was not, as he claimed, totally incapacitated but was only partially incapacitated. On this basis, there was work that the plaintiff could do. He was, accordingly, to be compensated upon the basis that the accident had caused some injury to him, that that injury had caused some but only partial incapacity, and that it was for the jury to decide what that compensation should be. 10 UNREPORTED JUDGMENTS A finding of this second kind was a finding open to the jury upon the directions given to them by the trial judge. At more than one place in his summing-up, his Honour, though indicating a preference for the plaintiff's contentions, made clear that it was for the jury to determine to what extent they believed the plaintiff's evidence, to what extent they accepted the evidence of Dr Stening or of Dr Matheson (I shall for brevity put aside the evidence of Dr Hordern) and to what extent they accepted that the plaintiff, since April 1987, had "had some residual working capacity and that work is available to him'. Thus, for example, in respect of the lastmentioned matter, the trial judge said: "Tf you come to the conclusion that there is work that the plaintiff could do, despite his claim that he cannot, then you must look to see whether that sort of work is available on the ordinary labour market.... You would know as members of the community that we do have a very severe recession at this time.... Nevertheless, you do have to try as best you can on the material which is placed before you to determine whether there would be some sort of job which could fit in with this man's obvious physical limitations.... If you accept the evidence of the plaintiffs doctors, it would have to be work where he would be free to come or go as he felt; if he had a headache and was off for several days, he would not lose his job; it would have to be work which would involve no repetitive stooping or bending or lifting; it would have to be work where his head did not have to be held in a funny position.... If, of course, you prefer the evidence of Dr Matheson, then that would not concern you. He says that the plaintiff is fit to do all sorts of work except the heaviest form of work." It is in my opinion to be inferred that the jury acted in accordance with what, in the course of the summing-up, the trial judge had indicated it was open for them to do. It is in my opinion to be inferred from the quantum of the verdict that the jury did not accept the plaintiffs claim that he was and would continue to be totally incapacitated because of the accident. It is, as the defendant has suggested, proper to infer that the jury did not accept that the plaintiff was totally incapacitated at the time of the trial and would be so for the future. The quantum of the damages awarded suggests that the jury concluded that, at most, the plaintiff was at the relevant times only partially incapacitated. The plaintiff's case on appeal has been that, though they acted within the ambit of the summing-up, their verdict should be set aside because it is against the evidence and the weight of the evidence. It is, in my opinion, important that there be no encroachment upon the right of a jury, civil or criminal, to deliver a verdict which, on the evidence, is open to them. In the administration of the criminal law, an appellate court may set aside a verdict given by a jury only where the verdict is, within the relevant principles, unsafe or unsatisfactory: see, eg, Morris v The Queen (1987) 163 CLR 454. The verdict of a jury in a civil case may be set aside where, inter alia, it is against the evidence and the weight of the evidence. The meaning of this principle in a context such as the present was explained by the majority of the High Court, Mason CJ, Deane, Toohey and McHugh JJ, in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33. Their Honours: at 41-42; said: "The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence IN ITS TOTALITY preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach." URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Mahoney JA) 11 Their Honours referred to: ".. cases where, on conflicting evidence, a verdict is found which is said to be against the weight of evidence: Hocking v Bell (1945) 71 CLR 430 at 499. In the cases last mentioned, as Starke J noted 'the verdict is not disturbed unless the jury, viewing THE WHOLE EVIDENCE reasonably, could not properly find it' (emphasis added): at 487. The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that 'the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust': Metropolitan Railway Co v Wright (1886) 11 App Cas 152 at 155." It is, in my respectful opinion, important that the true effect of what is there said be not circumvented. The judicial techniques for qualifying the effect of a principle are well recognised. The effect of a principle may be reduced - may ultimately be nullified - by, for example, the re-definition of the terms of the principle or the qualification of them. This may be done the more easily when the principle is stated in terms such as "unreasonable" and "unjust". An appellate court may, by giving a weak rather than a strong meaning to such terms reduce a strong principle to an admonition. It is particularly important that the protection presently given to a jury's verdict be not reduced in this way. The jury plays an important role in the achievement of justice. In the administration of the law there are some decisions which are best made by a jury rather than a judge; it is best that such decisions be made by the community rather than by the legal system. When the decision is made, the juror will return to anonymity, the judge will not. A jury will not be effective for this purpose if what it does may be put aside for reasons that are merely judgmental. There must, of course, be a capacity to review; a particular jury may fail to perform its function at all. Justice may clearly require intervention. But "unreasonable and unjust" improperly understood, may lead to the sifting of evidence or reasons for an inference as to what the jury thought "unreasonable and unjust", and the measuring of that against the views of the appellate court. That, in my opinion, is not what "unreasonable and unjust" means. It depends not upon competing judgments but upon what are the outer bounds of what reasonable members of the community could on the evidence decide. In my opinion, the present case is not of this kind. Upon a comparison of the competing contentions of the parties, the effect alone of the conclusion that the plaintiff was not suffering from the pain and the incapacity of which he complained was, I think, enough to warrant what the jury did. However, in argument the detail of the evidence was pursued at length and in deference to what was said by counsel, I shall deal with the main submissions made according to their terms. The submissions for the plaintiff in this appeal suggested, in effect, two things: (a) that the evidence of Dr Stening so preponderated over the evidence of Dr Matheson that the jury had no alternative but to accept it and to find that the plaintiff was totally incapacitated, that to fail to do so would be unreasonable and unjust; and (b) that, if this be not so, it was not open to the jury to find that the plaintiff was incapacitated but only partially. I do not accept those submissions. In deference to the arguments advanced by Mr Donovan QC, I shall consider each of them. 12 UNREPORTED JUDGMENTS (a) The conclusions of Dr Stening and of Dr Matheson were each conclusions which a jury, acting reasonably, could accept. To show that this is so, I shall refer to the questions which each of the doctors considered and the reasons they gave for the conclusion at which they arrived. The case for the plaintiff in this regard involved: that he was suffering the pain and discomfort of which he gave evidence; that that pain and discomfort derived from (I shall use a neutral term) an abnormality in the cervical spine at C5/6; and that that abnormality was caused by the accident in 1981. Each of these was accepted by Dr Stening but contested by Dr Matheson. Dr Matheson said that, in his opinion, the plaintiff was not suffering the pain and the like of which he complained. Dr Matheson had seen the plaintiff on two occasions, in 1987 and in 1992. He referred to the symptoms of which the plaintiff complained on those occasions. Reference was made, for example, to generalised headaches, low neck pain, pain going to the back of the head and some pain across the right shoulder. He referred to numbness in the thumb and the area in the base of the thumb. Dr Matheson did not accept that the plaintiff was suffering from those symptoms. He did not arrive at this conclusion merely from a general impression. He said that the symptoms complained of "... it did not fit in with any pattern of known nerve problems". He said: "He had normal reflexes. There was some doubtful weakness of the right hand; but this was not in the distribution of any nerves and I felt that it was not genuine. Similarly there was some doubtful sensory loss over the thumb that did not coincide with any definite neurological abnormality." These matters aside, Dr Matheson did not accept that such symptoms, if they existed, would have been caused by the suggested abnormality in the cervical spine. He accepted that there was an abnormality in the cervical spine at the C5/6 level: he said that in his evidence in chief and reiterated it in his answers in cross-examination. What he did not accept was that that abnormality would cause symptoms of the kind of which the plaintiff complained. When asked why he did not "attribute any significance to" the abnormality, he said: "A number of reasons. First of all that the pattern of the distribution of pain has differed from examination to examination and from report to report. Secondly, it is not supported by any physical signs. Q. What do you mean by physical signs? A. It is not supported by any disfunction that we can measure in the C6 nerve root. That is there is no appropriate motor loss and there is no appropriate sensory loss. Q. But what that means is that you cannot say that there is nothing which stands up and shouts out that it exists. It does not mean it does not exist, Doctor, does it? A. I think the thing that shouts at me is the fact the signs that we see persistently in this patient would indicate that he is not a true witness to the symptoms." There was nothing in what Dr Matheson said as to these matters that a jury, acting within the ambit of reasonableness open to it, could not accept. In addition, Dr Matheson did not accept that the abnormality which existed at C5/6 level was caused by the 1981 accident. The fact that the abnormality appeared in the 1987 or 1988 diagnostic material did not, of course, mean that it had existed in or been caused in 1981. It was necessary to find a reason for concluding that that which was first seen in 1987 or 1988 had existed in or been URJ KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Mahoney JA) 13 caused in 1981. The question whether that which first appeared in the diagnostic material only some years after was caused by what happened in 1981 was to be answered only by the exercise of clinical judgment and experience. Dr Stening explained why he concluded that the abnormality had been caused by the 1981 accident. His reasons were summarised by the trial judge in his charge to the jury. Dr Stening saw, from the diagnostic material, that there was "something protruding backwards from the spinal column into the front of the sac which contains the spinal cord at C5/6" and "he said that it showed this disc pressing into the sheath of the C6 nerve root". The symptoms from which the plaintiff claimed to suffer were thought by him to be those apt to arise from such an interference with C6 nerve root. Later, Dr Stening viewed a magnetic resonance imaging, described as "a very sophisticated form of X-ray''. That "showed a derangement of both the C5/6 disc and the one below it, the C6/7 disc. Dr Stening was not altogether happy with that. He said that you had to be very careful with these MRIs, that they tend to overstate the injury. So he looked through this man's history, and all of the examinations which he had taken of him, for some corroboration of what the MRI showed, and he told you that there was corroboration, at least in relation to this injury to the C5/6 disc pressing against the C6 nerve". He exercised his clinical judgment and experience in this way in arriving at the conclusion that the abnormality arose from the 1981 accident and that it pressed upon the C6 nerve root. Dr Stening had told the jury in evidence that when originally he had seen the plaintiff he had not accepted that he had symptoms resulting from the accident in 1981. At least, he thought the symptoms were symptoms to be considered by a psychiatrist rather than by himself, a neurosurgeon. It was the later diagnostic material and the inferences he drew from it which led him to change his mind. He detailed the reasoning which had led him to do so. The judge summarised his reasoning as follows: "There are four matters to which he referred. There was first of all this development of some degenerative condition between 1981 and 1986; secondly, there is the myelogram in 1988 which showed this pressure on the C6 nerve root by this particular disc; the third thing which he relied upon was the absence of tendon reflexes. He described those to you as being similar to knee jerks. No doubt you have all had your knee hit by a rubber hammer to see whether it jerks forward. He said that it is a very similar test to that. When he tested the plaintiff, he said that these reflexes were absent, and he said that that demonstrated that there was a problem with the C6 nerve root, and what is more - and this is important for something which was said during the course of the case - the absence of reflexes was seen before anybody knew that the C6 nerve was involved with this pressing disc. The fourth thing upon which Dr Stening relied was the pain at some times, and numbness at other times, which the plaintiff said radiated down to his thumb. He said that this was also characteristic of a problem with the C6 nerve root. Those problems with the plaintiffs thumb went right back almost to the beginning - his complaints about that - and that is also important about another issue which arises in this case, as to whether the plaintiff was faking that particular complaint. " Dr Matheson did not relate the abnormality to damage in the 1981 accident. He thought that the "early degenerative changes in the C5/6 disc", to which he had referred in his report of 25 May 1992, were "most likely constitutional in origin and unrelated to the accident" although he could not say that was so "with 100 14 UNREPORTED JUDGMENTS per cent certainty". When pressed in cross-examination with the view that degenerative changes without trauma are unlikely to occur in a person of the plaintiff's age, about twenty-eight, he said, "This is a common condition in people in their twenties". He said in addition that blows to the head such as were described to him in cross-examination "usually produce crushes to the vertebrae" and that "they do not produce disc disruptions". "In gross trauma like that the bones always break and discs remain intact". He said that it was "impossible to have a disc injury without a fracture" and that "the only time discs of that nature - events like that ever cause disc problems are in people who have already established degenerative discs". This view was questioned by counsel who cross-examined Dr Matheson but he adhered to it. There was, I think, no compelling reason why the jury should accept the barrister rather than the doctor. Faced with the opinions expressed by Dr Matheson, Mr Donovan QC for the plaintiff suggested, in effect, that Dr Matheson's views were extreme, to the extent that the court could and should put them aside in considering what the jury had done. Such a submission was, of course, necessary. If it be conceded that the views of Dr Matheson could have been accepted by the jury, then it could not be said that the "totality" of the evidence was such that the jury's verdict was against the weight of it. It is, therefore, necessary to consider whether that is a correct view of the doctor's evidence. There are, no doubt, cases in which it is possible to put aside for this purpose the whole or the relevant part of a witness's evidence. The witness may, in cross-examination, confess to the error of it or he may be reduced by cross-examination to an extent which makes it impossible to accept what he says as credible. The witness's evidence may be so internally inconsistent that the acceptance of it would be unreasonable and unjust. Even in such cases, it is, in my opinion, not proper to put aside a witness's evidence except in an extreme case: the evidence in the Hocking v Bell cases demonstrates this. The court, in considering whether evidence is so defective that it is to be excluded from "the whole evidence" for this purpose, must take care to ensure that there is not, by what it does, an undermining of the role of the jury as the tribunal of fact. In my respectful opinion, the evidence of Dr Matheson was far from this. Two examples may be taken from what was referred to in argument. Dr Matheson suggested that deterioration in the C5/6 area was likely to be constitutional and not traumatic in origin. He said that it was "a common condition in people in their twenties". His view was that that is "the first disc to start undergoing aging changes" and that such changes are "present in all people by the age of forty-five". In my opinion there is nothing in this evidence which, for reasons such as those to which I have referred or otherwise, requires rejection of it. And, as I have said, Dr Matheson was influenced to believe that the 1981 injury did not cause the abnormality in the cervical area because there was no fracture in the disc. Again, there is, on the face of it, nothing in that opinion which requires its rejection for present purposes. In assessing the evidence of Dr Matheson in relation to these matters, it is proper to record that he gave as his qualifications: Bachelor degrees in Surgery and Medicine, a Fellowship of the Royal Australasian College of Surgeons and a Fellowship of the Australasian College of Rehabilitation Medicine. He was a consultant neurosurgeon who had practised in that specialty for twenty-one years. I have dealt with what Dr Matheson said and the criticisms levelled at it at some length because of the significance of these matters in the argument of Mr Donovan QC and because of the views which have been expressed as to the URJ | KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Sheller JA) 15 plaintiff's possible future. Where, as between Dr Stening and Dr Matheson, the objective truth lies is not a matter which this Court can determine. The jury was invited to choose between Dr Stening and Dr Matheson. The issue before this Court is whether, by choosing Dr Matheson, they acted contrary to the weight of the evidence. I am satisfied that they did not. (b) It remains to consider whether Hunt CJ at CL erred in directing the jury that they could find that the plaintiff was only partially incapacitated. The plaintiff's submissions suggested he did. The suggestion was, I think, that if the plaintiff was suffering from the symptoms of which he complained, it must have been because he was suffering from nerve root pressure. If he was, the suggestion was that that condition would necessarily produce complete incapacity; it would not produce only partial incapacity. The jury was not required to accept that view. They could conclude that his symptoms were in fact much less than he said; the credibility of what he said could have been rejected by them. If his symptoms were less than he said, they could conclude that his capacity for work was the greater. The medical evidence did not establish, or require the jury to accept, that if the cervical spine abnormality pressed on the nerve root, the symptoms which that produced were necessarily totally incapacitating. They could have produced only partial incapacity. The trial judge was therefore right in leaving this matter to the jury as he did. If these conclusions be correct, then each of the objections advanced to the verdict of the jury must fail. In my opinion the appeal should be dismissed with costs. Sheller JA INTRODUCTION The plaintiff, Raymond Keremelevski, appealed from a jury verdict on the ground of manifest inadequacy. The main theme of the appeal was the conflict at every point between the medical evidence called on his behalf and that called on behalf of the defendant and respondent, Payless Superbarn (NSW) Pty Ltd. The appellant's medical evidence about his condition, if accepted, should have led to a substantial verdict, the respondent's medical evidence, if accepted, to a comparatively modest verdict. The appellant argued that the jury awarded an amount which fell between the two, that this demonstrated that the respondent's medical evidence had been rejected and that, if the appellant's medical evidence was accepted, the amount of the verdict was manifestly inadequate. To pick up the language of the majority judgment in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41 the evidence in its totality preponderated so strongly against the conclusion favoured by the jury that it could be said that the verdict was such as reasonable jurors could not reach. On 26 August 1981 the appellant, who was born on 15 April 1960, was injured when working for the respondent, as a night filler. The side railing of a semi-trailer was shaken out of its position on the side of the truck and fell onto the appellant as he was rising to his feet from a crouching position. The railing first struck him on the head and then when his head went between the bars, struck him on the shoulders forcing him backwards over a three foot wall into an empty garden pit. For the most part the appellant was off work until 9 May 1986 when he obtained a job as a truck driver and payroll deliverer employed by TNT Group 4 Pty Ltd. From 20 September to 18 November 1986 he was absent from work due to continuing pain and on 27 April 1987 ceased employment. He had not worked thereafter. 16 UNREPORTED JUDGMENTS The appellant sued the respondent to recover damages for his injuries. The case was heard by Hunt CJ at CL with a jury commencing on 20 July 1992. Liability was admitted. On 22 July 1992 the jury awarded the appellant $300,000. After the addition of interest on the relevant agreed components and deducting workers compensation payback, judgment was entered for the appellant in the sum of $287,972. APPELLANT'S MEDICAL EVIDENCE On 8 February 1982 the appellant was first seen by a consultant neurosurgeon, Dr Warwick Stening who was the appellant's principal medical witness. The appellant complained to Dr Stening of headaches which had become a little less frequent, though severe, and numbness in his hands lasting for about ten to fifteen minutes, about once a week. On examination Dr Stening found he had slight restriction of movement of his neck in the extremes of ranges and slight weakness in abduction and extension of the fingers of the left hand. Reflexes were normal. Dr Stening thought that x-rays dated 31 August 1981 were normal. He thought it was possible that there was a mild derangement of a lower cervical intervertebral disc. On 17 March 1982 Dr Stening reported that he was beginning to have some doubts about the appellant's motivation to return to work but the proof would be in the future. In July 1986 the appellant suffered an episode which he described as waking with his head locked onto his right shoulder and shooting pain down his right arm and into his thumb, rendering him so incapacitated as to be unable to get out of bed. Dr Stening, who had not seen the appellant since 5 April 1982, saw him again on 23 November 1987. The appellant said he still had pressure in his right shoulder and his neck and would wake three or four times a night with pain. He was also awake with numbness in both hands and the ulnar two fingers were nearly always numb. There was discomfort when Dr Stening attempted to move his neck sideways and to radiate his neck towards the left or to the right. Dr Stening thought the movements of his neck were restricted to approximately two-thirds of the normal ranges. There was decreased power in the flexors of the right wrist and the extensors and reduction of sensation to pinprick over the outer aspect of the right forearm. Dr Stening said that the significance of the appellant's report of a burning sensation from the lower part of the right thumb up to the radial part of the arm was that such distribution of pain was characteristic of the C6 nerve root. A cervical x-ray dated 22 February 1986 showed slight degenerative changes at the C6/7 level. The appellant was referred to Prince Henry Hospital where a myelogram was carried out on 15 February 1988. Dr Stening interpreted the myelogram as showing significant anterior indentation of the structure which contains the spinal cord. "In other words, there was something protruding backwards from the spinal column into the front of the sac which contains the spinal cord at the C5/6 level and impression (sic, compression?) of the left nerve root sheath at that level which is the C6 nerve root." Dr Stening formed the view that there was a documented derangement of the C5/6 intervertebral disc and that the chances of surgery improving the appellant were 50 - 60 per cent which was not sufficient for Dr Stening to recommend it. The surgery indicated was anterior cervical decompression and fusion at the C5/6 level. The operation involved a risk of complications but these were very rare. Dr Stening said "Quadriplegia occurs in one in every thousand operations." However without surgery he thought the prognosis for improvement was poor. The appellant could continue at his then present level of symptoms possibly URJ | KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Sheller JA) 17 gradually deteriorating over many years. The appellant was unfit for heavy duties involving heavy lifting and/or repetitive stooping. His duties as an armoured guard carrying heavy bags of currency were inappropriate. There were obvious difficulties in the appellant obtaining appropriate sedentary work. Dr Stening believed that his headaches originated from the cervical spine injury. In August 1989 a Magnetic Resonance Imaging test was done on the appellant's neck. In Dr Stening's opinion the MRI showed that the spinal cord was flattened at both the C5/6 level and also the C6/7 level. Dr Stening observed that one had to be fairly careful with MRIs. "They tend to overstate the case." According to his report of 11 May 1992 in light of the MRI report Dr Stening tested the appellant to see whether there were any signs of spinal cord compression "and I did not find this." However biceps and supinator jerks were abnormal. Their absence demonstrated some problems at C6. They confirmed the C5/6 derangement on the MRI. Dr Stening put this material together with the 1986 x-ray, which showed some degenerative changes at the C6/7 level, as evidence that the two discs were deranged. He did not expect the appellant to get back to full work again. He said: "Q. That is with or without the operation? A. I think that it is unlikely even with an operation that he will get back to full work because even people with a favourable psychological profile sometimes, or often are not improved sufficiently to go back to heavy manual labour. Q. What about if he does not have the surgery? A. Well, he is not going to get back to work from that point of view either. Q. Any deterioration if he does not have the surgery? A. He may deteriorate to the point where he gets more severe symptoms or even to the point where he starts to develop spinal cord compression but we may be looking at five, ten, twenty years in the future and should he get to that point, if he were to approach me I would say to him - I would explain to him again the shortcomings of surgery in his case and I would ask him to make his decision knowing the risks of non success or even damage. If he came to me with symptoms of spinal cord compression, then I would ignore his psychological profile and would strongly recommend the surgery. Q. That is because of the danger of paralysis from continuing compression on the spinal cord? A. He could develop quadriplegia from the disease he has if he is not operated on. It changes the relative risks of non success and further damage. It makes them much less relevant in that situation." The appellant also called a consultant psychiatrist, Dr Anthony Hordern. He did not think the appellant was exaggerating his complaints. Dr Hordern said that the appellant was severely depressed and had a grim prospect for the future. The psychiatric condition of depression from which the appellant suffered would make it very difficult for him to work and to find work. Dr Hordern did not think that the appellant would be able to cope with work because his was too disabled, both physically and psychiatrically. RESPONDENT'S MEDICAL EVIDENCE The respondent's case was that there was nothing to support the appellant's claim for damages after April 1987. In support of this case the respondent called Dr John Matheson, a consultant neurosurgeon. Dr Matheson saw the appellant on 9 April 1987 and 25 May 1992. He did not find any abnormal signs on examination. The appellant had normal reflexes. There was some doubtful sensory loss over the thumb which in Dr Matheson's opinion did not coincide with any definite neurological abnormality. He considered the x-rays taken in 18 UNREPORTED JUDGMENTS 1986 normal. He was unmoved by a radiological report saying there were degenerative changes at C5/6 and C6/7. Dr Matheson said the myelogram film showed a minor abnormality at the C5/6 disc with the beginnings of some osteophytes or overgrowth of bone at that level. This procedure indicated the appellant had some early degenerative changes at the C5/6 level. Of the MRI scan Dr Matheson said it showed some doubtful changes at the C5/6 level indicating that there may have been some early degenerative changes. Reported changes at the lower disc below the C6/7 level were associated with an artefact across the film plates. Dr Matheson considered that this level was normal. Asked about his examination of the appellant in 1992 Dr Matheson said: "Q. And what did you find on examination? A. Well, he resisted me examining his neck, but I considered it was normal in that there was no spasm and a normal contour, although I was not able to put it through a full range of mobility; and again neurological testing showed some inconsistency of sensory loss about the thumb and index finger which was more widespread than before; and again the weakness of the right arm had become more widespread; and there was no muscle wasting, and I considered that these were not genuine findings. Q. Did you form a view as at the date of that examination as to the state of Mr Keremelevski's health with specific regard to the injury that he suffered in 1981? A. I felt that there was no residual disability from his injury in 81. Q. Now, you mentioned the presence in your view of degenerative changes. Are you able to say whether or not those changes were caused by the accident in 1981? A. I do not believe they were caused by the accident in 1981. Q. When do you think they were caused? A. These were degenerative changes. We know that his x-rays of his neck taken in 1981 were normal. The x-rays taken in 86 were normal; but the x-rays taken in 92 showed some abnormality. The C5/6 disc level is the first disc to start undergoing aging changes. It is present in all people by the age of 45. It occurs in this patient at an earlier age than normal. Q. Is it possible that these changes may have been initiated by the accident? A. I could not fully exclude that possibility. Q. Would you place any restriction upon his capacity to perform work at present? A. I place little restriction on it. He may have difficulty in prolonged heavy physical work. Q. What would be the reason for that limitation? A. This may produce some neck pain. Q. Neck pain as a result of what? A. Well, say persistent use of a sledge hammer or activities such as that. Q. Is that as a result of the presence of the degenerative changes that you felt were in his neck? A. Yes. Q. In your opinion is he at this stage fit for any form of employment? A. Yes. Q. With the restrictions that you have just mentioned - that is avoiding heavy work? A. Yes. Q. Do you see any place for surgery in the treatment of this man? A. None at all." Dr Matheson said, during cross examination, that he based his conclusion upon the 1981 x-rays being normal, the 1986 x-rays being normal and the degenerative changes shown by the myelogram in 1988 insignificant. Asked why he did not attribute any significance to the history of pain running down the right arm to the thumb and index finger he said that the pattern of the distribution of pain had differed from examination to examination and from report to report and was not supported by any physical signs. In his report of 25 May 1992 Dr Matheson said: URJ | KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Sheller JA) 19 "The only thing which is different from when I last saw him is that we now [have] documentation of some degree of early degenerative changes in the C5/6 disc. These are most likely constitutional in origin and unrelated to the accident; but the temporal connection is going to be very hard to divorce the accident of 26 August 1981 from the development of this disc lesion." Asked about this Dr Matheson said that he did not believe the disc lesion was caused by the accident, but had no method of supporting that with a 100 per cent certainty. In the course of cross examination Dr Matheson said that there could not be any injury to the appellant's C5/6 disc without either a pre-existing degeneration to the disc or a fracture. Hunt CJ at CL carefully summarised the medical evidence. He said that Dr Matheson met the appellant's case "head on at every turn". However Dr Matheson did make one concession. He said that he could not fully exclude the possibility that the degenerative condition in CS/6 was initiated by the accident in 1981. APPELLANT'S EVIDENCE The appellant gave evidence. The respondent submitted that he gave unsatisfactory and vague answers and in answer to a lot of questions said that he could not remember, in some cases, matters which had occurred quite recently. A video was admitted into evidence which showed the appellant turning his head to the right without any hesitation and more freely than the appellant was prepared to concede he could do. There was evidence from the appellant's brother and mother. His counsel said he was a man who was badly injured but had tried to work. He spent eleven months with TNT doing work which, in Dr Stening's opinion was inappropriate to his physical condition. He struggled on until he simply could not cope. FIGURES FOR CALCULATION OF DAMAGES The appellant's out of pocket expenses were agreed at $7,847. The figures relied upon by the appellant for past loss of wages to the end of June 1987 and accepted by the respondent were $74,157. The total of these two amounts, less than $100,000, suggested that to arrive at a verdict of $300,000 the jury must have rejected the respondent's case that any financial loss suffered by the appellant after the middle of 1987 was not caused by the accident. This would involve rejecting Dr Matheson's opinion. On the other hand, if the jury entirely accepted the opinion of Dr Stening the verdict should have been in the order of $700,000. The trial judge explained to the jury figures produced for the purpose of assessing the value of lost future earning capacity. The appellant claimed that the current net average weekly earnings of $448.48 should be taken as the basis for assessing what he would have earned in the future. The respondent said at most it should be no more than $100 a week. The appellant had a fall-back position of $300 a week. This range of figures was relevant only if the jury rejected the respondent's case, based on Dr Matheson's opinion, that financial loss after the middle of 1987 was not caused by the accident. The jury were told that, using the tables, if they wanted to pay him $1 per week for the next thirty-three years they would have to award the appellant $1,099.70. His Honour said: "If you take the plaintiff's first choice of $448.48, and you multiply it by 1,099.70 you get $493,193.45. Of course you may look at it and say, that is an awful lot of money. You must remember that this man has an awful lot of life yet to live. If you then think that it is something less the $448.48 which the plaintiff claims, then you multiply that figure by something else - that is, the figure of 20 UNREPORTED JUDGMENTS 1,099.70 by the something else. The defendant starts off by saying that you should award him nothing at all, but, in any event, no more than $100 per week. If you multiply that figure of $100 per week by the multiplier of 1,099.70, you get $109,970." It was not suggested that any of these various amounts were not appropriate to be acted upon by the jury, whatever their view of Dr Mathieson's evidence. No re-direction was sought and the appellant did not, nor could he, seriously challenge the summing up. On the one hand the jury were directed to take account of the possibility that the appellant might not have lived until he was sixty-five or might not have been able to work until he was sixty-five. On the other hand they were directed to the possibility that he might have earnt more or worked beyond the age of sixty-five. Various figures were given to them by way of deduction for contingencies. They were directed about the assistance rendered to the appellant by his mother and compensation to the appellant because those services were provided. Figures were mentioned which ranged between $ 1,000 and $5,000. They were given directions about general damages. His Honour carefully recited the pain, discomfort, distress and inconvenience which the appellant described. He referred to the corroboration of that evidence by his mother and brother. Finally the jury were asked to bring in a total figure. His Honour said: "You will not be asked to divide it up in any way - what sum you give for this or what sum you give for that. Indeed, when you add up the various heads of damages which you consider, you may think that the total which you reach is either too high or too low, and you can adjust it in order to make the final figure what you think is a fair award of compensation in this case, one which is fair, just and reasonable in all the circumstances." CONCLUSION At the date of the accident the appellant was twenty-one. At the date of the trial, thirty-two. If the jury accepted the evidence of Dr Stening, the appellant would never get back to full work again even if he underwent surgery. If he did not undergo surgery he might deteriorate to the point where he got more severe symptoms "or even to the point where he starts to develop spinal cord compression." But Dr Stening was looking at five, ten, twenty years in the future. If that point was reached he would strongly recommend surgery because of the risk of quadriplegia. If the appellant undertook surgery the risk of quadriplegia from the surgery was one in a thousand. Inevitably to some extent the opinions of the doctors were based upon the histories given to them and their own assessment of the appellant's veracity. The fact that, when dealing with the appellant's future economic loss the parties placed before the jury a wide range of figures, covering total and partial incapacity, the award of which could only be made if Dr Matheson's primary thesis was rejected, suggests acceptance by the parties of considerable latitude as to what might be the possible verdict depending on the jury's view of the appellant's loss of earning capacity and the prospects of any further deterioration in his condition. I do not think it is possible to say that in weighing the many imponderables put before them the jury arrived at a verdict which was manifestly inadequate. Nor, viewing the whole evidence reasonably, could the amount awarded be regarded as one the jury could not properly award. A reading of the medical evidence may lead one to think it surprising. Complete acceptance of the appellant's case must inevitably have led to a far higher verdict. But everything that could be said in favour of that case was put to the jury in the summing up URJ | KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD (Sheller JA) 21 while at the same time there was a proper acknowledgment that the appellant's case might not reach so high. On the whole of the evidence I do not think that the verdict was such as reasonable jurors could not reach. Accordingly I agree with Mahoney JA that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: BHK Donovan QC / PS Jones Instructed by: Colin Daley Quinn Counsel for the Respondent: JA McIntyre Instructed by: Connery and Partners