KADKHODAZANDEH v WARMAN INTERNATIONAL LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and COLE JJA 13 March 1995, 13 March 1995 [1995] NSWCA 227 Appeal from Common Law Division — Industrial accident, plaintiff injured — Verdict of jury — Small verdict, contributory negligence 20 per cent — No ground for setting aside jury's verdict. Mahoney JA The plaintiff was injured on 5 January 1985 in the course of his work. From that time onward he worked for a short period, perhaps intermittent periods, but ultimately on 18 June 1986 he was dismissed by the defendant. On 28 May 1993 after a substantial trial of the issues of liability and damages before a judge and a jury a verdict was given in his favour for damages for $46,200. He was held to be guilty of contributory negligence, the extent being twenty per cent. After adjustments judgment was given for him for $11,725. He has appealed to this Court against that judgment. The matters which have been argued by Mr Gross QC for the appellant/plaintiff are contributory negligence and the quantum of damages. In relation to the issue of contributory negligence the notice of appeal raises the question whether there was evidence of contributory negligence and, if so, whether the assessment of twenty per cent was one which was open to the jury. It is proper to point out in passing that at the end of the evidence the issue of contributory negligence and its being left to the jury was the subject of discussion between judge and counsel. It is proper and of assistance that there be such discussion. Having ascertained from the defendant's counsel, Mr Hoeben, what aspects of contributory negligence were pressed, his Honour said this: "Mr Gross, do you agree there is evidence that the jury could find contributory negligence in not asking Angelo for the crane and not asking Jack to give him a hand beforehand?" Mr Gross's reply was: "T am happy to address the jury on that your Honour. I am happy to reserve my position later on the question of whether there is any evidence, if it goes somewhere else but we do not ask that your Honour take away the contributory negligence from the jury on that particular aspect. The other problem is we don't know whether Angelo is on the only crane that reached the area anyway." In relation to the lastmentioned matter there was other discussion which is not relevant. It is my understanding that if counsel is to contend that there is no case to go to the jury on a particular point such as contributory negligence, then counsel should properly put that point to the judge and have a decision upon it. I appreciate the point which has been put by Mr Gross that it is proper to take the jury's finding on contributory negligence in order to avoid, as I shall describe it, a new trial upon eventualities or conditions. I appreciate the wisdom of what has been said by him in this regard. But I think that, if there is an issue such as there 2 UNREPORTED JUDGMENTS is no evidence to support a particular matter being left to the jury, it is the duty of counsel to take that point and have it decided by the judge at the trial. However, having said that I do not think that anything turns upon the matter in the present case and I will proceed to consider the submissions that have been made. It was submitted that there was no evidence to go to the jury upon the issue of contributory negligence: at least I infer that to be the submission. If there was evidence to go to the jury I think it is difficult to sustain a submission that a finding of twenty per cent contributory negligence was not open to the jury. This in fact is one of the percentages which the learned judge left to the jury as a possibility (at 284 of the appeal papers) during the course of the summing-up. I do not think that if contributory negligence was a jury question a twenty per cent finding could be said to be perverse or otherwise outside the range of what a jury for relevant purposes could give. The main issue therefore is whether there was evidence to go to the jury. The issues which were litigated at the trial have been, I think, fairly stated by Mr Gross in his written submissions. From those submissions the Court has derived significant assistance. In his written submissions the matter was put generally this way. The defendant's argument on contributory negligence was that the plaintiff should have waited until his fellow workman, Mr Havajian, had finished his particular task before embarking upon the lift or, alternatively, should have waited until the crane-driver's responsibilities permitted him to perform the necessary lifting task. The plaintiff's argument on negligence was that the plaintiff did not act unreasonably in the circumstances in not waiting for either Mr Havajian or the crane-driver and that in his conscientious pursuit of his duties he was merely performing the role expected of him in what was an unsafe system of work laid down by the defendant. In doing what he did he was merely keeping up the rate of work he believed the defendant expected of him. It is to be accepted that a finding of contributory negligence ought not to be made where there is an unsafe system of work and where the plaintiff's lack of care for his own safety really amounts to an inadvertence, a momentary carelessness or the like such as is referred to in the authorities to which Mr Gross has referred in his submission, such as Sungravure Pty Ltd v Meani (1964) 110 CLR 24 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. It is not necessary for present purposes to pursue the ambit of the principles involved. They have not been at issue in the present case. The problem that is here facing the plaintiff is that the issues which have been referred to by Mr Gross were fairly left to the jury. It was said that if the jury found, for example, that the particular object which the plaintiff was required to move and in the moving of which he is said to have suffered the injury to his neck which he claimed, was of the weight of 90 kilograms or thereabouts, then the defendant was negligent. The defendant had said that if that was the case, then the plaintiff should have recognised immediately the weight of the object and should simply have waited until either he had the assistance of a workman who customarily afforded him assistance or until he had the assistance of a crane worked by the workman described as Angelo. That help would have been available to him on request although perhaps after a short time. These issues were put to the jury by the judge. In the end, the case for the appellant/plaintiff must, I think, be a case something of this order. Notwithstanding that the system of work offered these alternatives to the plaintiff lifting the object himself, he was yet not lacking in care for his URJ KADKHODAZANDEH v WARMAN INTERNATIONAL LTD (Mahoney JA) 3 own safety by failing to take advantage of them. There was, as Mr Gross has pointed out, significant evidence from the plaintiff that, as he claimed, he was pressed by the employer to continue working and not to delay work by asking for assistance. Reference has been made in argument to this evidence. It was a matter for the jury to decide whether and to what extent that evidence should be accepted. One of the persons in question in this regard denied what the plaintiff had said and it was for the jury to determine to what extent they accepted what the plaintiff had said as to the bringing of pressure on him to work without seeking assistance. I have not attempted to cover all of the detail of the matter. Mr Gross has in his argument pressed everything that could be said for the plaintiff. But in the end I am of opinion that the matter remained a question for decision by the jury. No objection is taken to the way in which it was put by the learned judge to the jury. In fact, I would assess what the judge said as being a fair and objective summary of the issues, if anything perhaps a little in favour of the plaintiff. But however that be, I do not think that this Court should conclude that in the circumstances there was not an appropriate case to go to the jury on contributory negligence. The jury decided the matter against the plaintiff, to the extent to which I have referred. I come then to the second matter that has been argued, the assessment of damages. Putting the matter in very broad terms and therefore perhaps to an extent inaccurately, the position that emerged at the trial was this. Before the accident, the plaintiff had had difficulty with his back, particularly his low back: there was evidence from which it might have been inferred that the plaintiff had suffered a degenerative spine condition. He also had a heart condition. He was suffering from diabetes and he had a circulation problem such that parts of his body - reference was made to the arms or the hand - had become swollen. These matters were apt to affect his work capacity. Reference was made in the submissions to what was described as an emotional condition; it is not necessary for me to enlarge upon that. There was evidence given by medical witnesses from which the jury, if they accepted it, could conclude that although the accident happened on 5 January 1985, by 24 January 1989 or thereabouts, perhaps even earlier, the effects of the injury for which the plaintiff claimed compensation, had ceased. The plaintiff claimed compensation for injury to his neck. It was suggested that in the course of attempting to lift the heavy object in question he had damaged his cervical spine or otherwise injured himself in that area. The view of some of the doctors at least was that there was no spinal damage but only soft ligament damage and that he had recovered by 24 January 1989 or perhaps earlier. If the jury accepted that evidence then the position for the plaintiff was that he was entitled to recover, of course, general damages for the injury that he suffered but upon the basis of that recovery and that he was entitled to past economic loss of the kind referred to and perhaps something for future loss of earning capacity. One of the difficulties in relation to the lastmentioned matter, future loss, was that following the injury at work he suffered a heart condition of considerable seriousness. On 24 December 1986 he suffered a heart attack, a myocardial infarct, and was dealt with at the Ryde Hospital. Subsequently on 2 July 1992 he had further cardiac surgery at the Royal Prince Alfred Hospital. I think it was open to the jury to form the opinion that, if there was any economic capacity left after his recovery from the neck injury for which he claimed in this proceeding, that economic capacity had ceased as a result of these matters, matters which 4 UNREPORTED JUDGMENTS were not attributable to the defendant's neglect. Therefore the amount which the jury could properly award for future economic loss could have been fairly small. That leaves the two matters to which I have referred, namely, general damages and economic loss to the date of trial. Mr Gross sought to quantify the various amounts which were included in the jury's verdict and to show from these that what the jury did was appealably wrong. Mr Gross put the figures generally as follows. He suggested that the wage loss between January 1985 and January 1989 was of the order of $30,000; that the plaintiff had earned during the period amounts of the order of $18,000 and that that left basically a claim for a loss of $12,000 for the period. He then submitted that the quantum of general damages to be taken for the purposes of calculation as about $25,000. He referred to the amount of $4,568.30 which were agreed out-of-pocket expenses and the amount deducted for contributory negligence of $9,240. These seem not to have been seriously in question. (It is not, I think, necessary to pursue all of the contingent submissions which were made by Mr Gross: I say "contingent" because they depend upon various assumptions being made on each side of the argument). Upon the basis of such figures, he submitted that it should be inferred that the jury had fallen into error. I do not agree. It is, in the end, sufficient to say that in my opinion it was open to the jury properly directing their minds to the matter to arrive at the assessment of damages which they did. I do not think that any error was involved. Viewing the plaintiffs position overall, the problem of assessment of damages was a complicated one. It was complicated by the existence of the contingencies to which I have referred. Because of those contingencies, I think it was a particularly difficult matter for the jury to decide. Had they come to a conclusion more in favour of the plaintiff on any of a number of matters it may be that the amount that they would have awarded, an amount which could have been justified, may have been significantly higher. But the matter was, no doubt rightly, committed by the parties to the decision of the jury and the decision of the jury was that to which I have referred. In all the circumstances, I do not think that an appealable error has been shown to have occurred. In my opinion the appeal should be dismissed with costs. Meagher JA I agree. Cole JA I also agree. Mahoney JA: The order of the Court is therefore the appeal is dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: BJ GROSS QC/RJ TAYLOR Respondent: CRR HOEBEN SOLICITORS: Appellant: CARROLL and O'DEA Respondent: PIETERSE and PIETERSE