COSTAINS (AUSTRALIA) PTY LTD v ATKINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and SHELLER JA 14 September 1995, 5 October 1995 [1995] NSWCA 100 APPEAL — new trial — District Court — proper approach to — District Court Act 1973, s126 — discretion of judge — correct approach to evidence most favourable to successful party — held: No error in ordering new trial. PRACTICE and PROCEDURE — District Court — new trial application — proper approach to. DAMAGES — hearing loss — tinnitus — jury verdict of $5,000 — inadequacy — new trial properly ordered. APPEAL — District Court — new trial — jury verdict — alleged inadequacy — immediate application for new trial — application granted by trial judge (PR Bell DCJ) — claim for negligence causing hearing loss — jury finds for plaintiff but awards verdict of only $5,000 — evidence of exposure to noisy conditions — evidence of tinnitus and complaints of difficulty in family and social settings — held: (1) The Court must consider an application for a retrial upon the footing that the jury accepted the evidence most favourable to the party upholding the verdict. Progress and Properties Ltd v Craft (1976) 135 CLR 651; Brown v Dean and Anor [1910] AC 373 (HL); Hill v Cooke (1958) 58 SR (NSW) 49 (FC) appld; (2) The question was whether the amount of the verdict was such that no reasonable jury, properly instructed, could have arrived at it. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 appld; (3) The jury's verdict was appealably inadequate and the discretion of the judge to order a new trial would not be disturbed. Nominal Defendant v Hook (1962) 113 CLR 641 appld. PRACTICE and PROCEDURE — District Court — new trial application — District Court Act 1973, s126 — proper approach to — requirement of immediate application — whether discretion of judge granting new trial miscarried — held: It did not. DAMAGES — hearing loss — tinnitus — adequacy of jury verdict — verdict of $5,000 — evidence of long pre-employment exposure to noise — available inferences from the evidence — available interpretations open to the jury whether appealably inadequate — held: Verdict inadequate, new trial properly ordered. District Court Act 1973, s126(1) ORDERS 1. Appeal dismissed; and 2. Costs reserved. Gleeson CJ I have had the benefit of reading in draft form the judgment of Kirby P. I agree with the orders proposed by his Honour and with his reasons for those orders. Kirby P This appeal arises from an order of the District Court (PR Bell DCJ) that there be a new trial of the action between Mr Henry Atkinson (the respondent) and Costains (Aust) Pty Ltd (the appellant). 2 UNREPORTED JUDGMENTS The order arose out of a verdict of a civil jury in a trial of an action for damages for personal injury brought by the respondent against the appellant. The trial took place at Muswellbrook. It commenced on 12 October 1992. It continued on 13 October, 14 October, 15 October and 16 October 1992. It concluded with the verdict on 19 October 1992. The application for a new trial was made on 20 October 1992 in reliance upon s126(1)(b)(i) of the District Court Act 1973 on 20 October 1992. The order to that effect was made by his Honour on 21 October 1992. I pause to reflect upon the fact that this case consumed seven sitting days of the District Court, including five days in which a jury of four citizens took part in the trial. The public (and private) cost of this procedure of dispute resolution for an inherently modest claim of damages for loss of hearing and other consequences, allegedly attributable to the negligence of the appellant, appears less than perfect. THE APPLICATION FOR A NEW TRIAL. The provision under which the new trial was ordered by the District Court reads: "126(1) The Court in its discretion may, after judgment in an action, order that a new trial of the action be had if - (b) the action is tried with a jury and on the day on which the jury gives its verdict in the action, a party to the action - (i) in the presence of the other party...... makes application for the order." The transcript indicates that the jury finally retired to consider their verdict at 4.29 pm on 19 October 1992. They returned with their verdict for damages amounting to $5,000 in favour of the respondent at 5.17 pm on 19 October 1992. The jury was discharged at 5.30 pm on that day. The application which led to the order for a new trial was made at an undisclosed time on 20 October 1992. The transcript also appears to indicate that the application was made on behalf of the appellant. But it was agreed, before this Court, that the application was actually made on behalf of the respondent. It therefore appears that the application under s126 was not made "on the day on which the jury gives its verdict" as s126(1)(b) requires. However, no point was taken, either before PR Bell DCJ or before this Court, that the overnight delay deprived the respondent of an entitlement to the order or that his Honour was without jurisdiction to make it. Having regard to the way in which the appeal has been fought, I will assume that nothing turns on the delay in making the application. Certainly, it was made promptly. PR Bell DCJ, in his reasons for agreeing to the application records that, "the plaintiff immediately sought a new trial". It is possible that, in the surprise following the verdict, an oral application was made, but not recorded. However that may be, I shall assume that the order on the application was lawfully sought and made. The question for this Court is whether the order which followed was properly made or whether error has been shown authorising this Court to set it aside and, as the appellant has sought, to restore the jury's verdict and enter judgment in accordance with that verdict. THE APPLICABLE LAW. The principles governing the primary judge, and this Court, in these proceedings are not in doubt: (1) Faced with an application under s126 of the Act, the judge was required to consider whether the jury's verdict was manifestly inadequate so as to evidence a misunderstanding of their function, or the arrival at a verdict which URJ COSTAINS (AUSTRALIA) PTY LTD v ATKINSON (Kirby P) 3 demonstrated a wholly erroneous outcome. See Nominal Defendant v Hook (1962) 113 CLR 641, 644; Murtagh v Barrie (1890) 24 QBD 632; Brown v Dean and Anor [1910] AC 373 (HL), 374; (2) The approach to be taken by the judge, in considering an application based upon the assertion that the jury's verdict is manifestly inadequate or excessive, is similar to that taken by this Court hearing and disposing of an appeal based on the same grounds. The Court must ask itself whether the verdict is one to which no reasonable jury, properly instructed, could have arrived. See Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369. In arriving at its answer to this question, the Court is obliged to assume that the jury acted lawfully and in accordance with their obligations. It is a serious step to deprive a resisting party of a jury verdict. See Dean, 374. In testing the jury's verdict, the Court must approach the evidence upon the assumption that the jury took a view of the evidence most consistent with the amount of the verdict, be it high or low. See Progress and Properties Ltd v Craft (1976) 135 CLR 651, 672; Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 227; Lithgow District Hospital v Miller, Court of Appeal (NSW), unreported, 8 December 1994; (3) Because s126 of the Act expressly, and by its purpose, affords the District Court a discretion to grant or refuse a new trial, this Court would only interfere in the exercise of that discretion upon a ground which would ordinarily warrant appellate intervention in discretionary decisions of trial judges. Where a District Court judge has exercised the discretion to order, or refuse, a new trial under s126 of the Act, this Court will only intervene where it is shown that the judge had taken into account matters which are irrelevant; failed to take into account important matters which are relevant; erred in law or principle in the approach to the exercise of the discretion; or reached a conclusion which is otherwise manifestly wrong. See Hill v Cooke (1958) 58 SR (NSW) 49, 50; 75 WN (NSW) 82, 83 (FC); (4) No contributory negligence was alleged at the trial, although the issue was raised by counsel in the closing moments, after the jury had been first sent out to consider their verdict. There was, therefore, no proper basis upon which the jury could have reduced the verdict from that which the respondent was entitled to recover, if he proved negligence for the consequences of which the appellant was liable to him. The trial judge properly instructed the jury upon the distinct questions of liability and damages. The issue of liability was hotly contested. It would have been open to the jury (as the learned judge observed) to return a verdict in favour of the appellant. But having concluded that the respondent was entitled to a verdict, it was the duty of the jury to calculate the damages to which, by their verdict, they found the respondent to be entitled. After the verdict, the judge expressed concern that it may have reflected a compromise arising from the respondent's difficulties with liability. Such action, if it did explain the very low verdict, would amount to a departure by the jury from their lawful obligations; (5) On the issue of damages, the trial judge left the matters to be considered very much at large. He called to the jury's attention the respondent's complaints about hearing loss and, the interference which this had caused in his social and recreational pursuits, including listening to radio and television and conversing with his family. The judge also mentioned the complaint of the respondent of tinnitus, a ringing sensation in the ear, which the respondent ascribed to the hearing injuries which he had suffered as a result of the appellant's negligence. Much attention was paid during the trial to the percentage calculations of hearing loss estimated, at different times, following a series of audiogram tests performed 4 UNREPORTED JUDGMENTS upon the respondent. Thus, an audiogram test in March 1970, before he joined the service of the appellant, showed a 4.7 percent loss in the right ear and an 18.8 percent loss in the left ear. Tests performed in 1984 showed a 5.4 percent loss of hearing in the right ear and a 14.7 percent loss in the left ear. These figures appear to demonstrate an actual improvement in the hearing of the left ear between the two tests. However, this fact merely indicates the lack of precision in such tests, which are, in part, dependent upon the responses of those subjected to them. The respondent's claim in the District Court was for general damages for the injuries to his hearing and tinnitus. It was not for compensation entitlements which depended, as such, upon the certified hearing loss. The latter was only relevant to the damages claim as it demonstrated the existence of differentiated levels of the hearing loss and tended to confirm the respondent's complaints about it. The proper approach to be taken in such matters has been described by this Court in Moss v The Commonwealth of Australia, Court of Appeal (NSW), unreported, 14 October 1994; [1994] NSWJB 112. There was no complaint about P R Bell DCJ's instructions to the jury on this, or any other, matter. Neither at the trial, nor in this Court, was any such complaint voiced. The only objection before us is the appellant's assertion that his Honour erred in acceding to the respondent's request for a new trial on the footing that the jury's verdict was manifestly inadequate. THE PRIMARY JUDGE'S DECISION. PR Bell DCJ recounted the facts of the trial. He referred to Demir and instructed himself upon the High Court's explanation in Coates v Carter (1951) 82 CLR 537, 543 of the approach to be taken to inadequate verdicts. He recorded the alternative submissions of the parties, including the appellant's defence of the adequacy of the jury's verdict based upon the most modest approach to the evidence available to the jury. He stated that the appellant, through its then counsel, had conceded that the respondent was "an honest man... [but] nevertheless... an unreliable one", in the sense that he confused dates, particularly relating to the onset of hearing loss. He addressed his attention to the submission for the appellant as to the respondent's congenital hearing loss and the healing loss attributable to work and other causes which pre-dated his employment by the appellant. His Honour then recorded the submissions for the respondent that, depending upon the hearing loss found by the jury and the interference in his enjoyment of life, a much higher figure than $5,000 was required. He concluded: "Having proper regard to the plaintiff's evidence of disability in such matters as the television, the radio, curtailment of his social activities, and the difficulties with family functions, this evidence would lead the plaintiff to a much higher figure than $5,000, it was submitted. The plaintiff also raises what I view as a very strong second argument relating to the tinnitus, namely, that if the $5,000 award related solely to the slight increase in hearing loss, that while it is too low on that basis, it is so low that it cannot, on any interpretation, be said to take into account an amount for the tinnitus which, said Mr Keck (a witness) 'can be worse than the hearing loss as a problem'. I am not satisfied.... that tinnitus is embraced in 'hearing loss symptoms' which Mr Keck said probably would have been experienced by the plaintiff in 1970 insofar as his left ear is concerned... I am satisfied that there was sufficient evidence before the jury to negate a finding that the defendant failed in its duty to protect the plaintiff from hearing loss in that the jury could have accepted that the remedies advanced... were unreasonable. This leads me to the conclusion that if the jury had given careful consideration to the evidence, it would have either returned a verdict for the URJ COSTAINS (AUSTRALIA) PTY LTD v ATKINSON (Kirby P) 5 defendant, or a verdict for the plaintiff, in an amount much higher than $5,000, so that the award of $5,000 is manifestly inadequate." ARGUMENTS FOR THE APPELLANT. The appellant criticised both the approach of PR Bell DCJ and his Honour's conclusion. It contended that his Honour had simply looked to his own assessment of what verdict the jury should have returned on the evidence before them. He did not approach the matter on the footing that he should isolate that view of the evidence most favourable to the appellant's case, it being the entitlement of the jury to accept any reasonable view of the evidence, including that which was most unfavourable to the respondent's claims. There is some justification in this complaint. The approach taken by his Honour appears to have arisen from the way in which the matter was put to him. This conclusion is derived from the record which his Honour makes of the arguments which were advanced for the parties. However, this Court's function is not to correct the reasons of PR Bell DCJ, but to consider whether his Honour erred in the order which he ultimately made. To do this, the Court must, as the appellant contended, scrutinize the evidence for itself considering whether a reasonable interpretation of the evidence, upon a basis most favourable to the appellant, could justify the amount of the verdict. Only if this Court would, on this approach, arrive at a different result would it disturb the order which PR Bell DCJ made. THE EVIDENCE AT THE TRIAL. The evidence at the trial disclosed that the respondent was born in 1925. He was thus aged 67 years when his case was heard. He commenced employment with the appellant as a plant operator in August 1971. He remained in that employment until his retirement in July 1985. Before his engagement by the appellant, the respondent was exposed for a period of 30 years to loud noise which, the evidence showed, was capable of damaging his hearing. He enlisted in the AIF in 1941 and served for five years in conditions which probably occasioned some permanent loss of hearing. In 1946 he commenced work as a plant operator, the position which he was to maintain with a number of employers over the ensuing 25 years. He agreed that, during this time, he worked in "very noisy employment". During the whole of that employment, the respondent did not have, or wear, ear muffs. Although he maintained that he had not noticed any symptoms of hearing loss before his employment with the appellant, an audiogram undertaken in March 1970 showed the hearing loss stated above which, with adjustments for age, apparently remained fairly stable throughout his employment with the appellant. In his work with the appellant, the respondent certainly remained exposed to noisy machinery. However, from the beginning he had his own ear muffs which he wore at work. He said that these "weren't very effective". In about 1972, i.e. one year after his-commencement, the respondent was provided with ear muffs by the appellant. This cut down the level of noise to which he was exposed. The brand of ear muffs given to the respondent by the appellant was probably "Protector 44". The appellant's expert, Mr L Challis, gave evidence that, given such protection and the level of exposure it was "extremely unlikely that his employment with [the appellant] would have caused significant hearing loss". The appellant argued that the apparently low judgment of $5,000 could be justified thus. The jury could have concluded that the basic damage to the respondent's hearing was done in the extremely noisy work in which he was engaged as a plant operator from 1948 until 1971. During this time he did not use 6 UNREPORTED JUDGMENTS hearing protectors. By the time he came to work with the appellant, he was using protectors. Although originally he had to provide his own, the appellant offered effective protectors within about a year of his engagement. Thus, any additional hearing damage was to be confined to that period. The respondent was not entitled to recover as against the appellant for the hearing loss which he suffered over the 23 years of noisy work before commencing in its service. Some confirmation of the small amount of marginal hearing loss done by work with the appellant could have been derived from the relatively stable audiogram results in 1970 (just before the respondent commenced with the appellant) and 1984 (just before he retired). So far as the complaints of tinnitus were concerned, the evidence showed that these could exist without hearing damage. It was therefore open to the jury to infer that, in the respondent's case, any marginal hearing loss caused by the employment with the appellant had not contributed, or contributed very little, to the tinnitus. Upon this hypothesis, all that the jury would allow to the respondent would be a small amount for additional hearing loss and an even smaller amount for tinnitus. So went the arguments for the appellant. In order to test these arguments, it is necessary to descend from generalities to the specific evidence. As to the additional hearing loss caused by the service with the appellant, the appellant relied at the trial on Mr Louis Challis, a consulting acoustical and vibration engineer. He gave the following evidence: "Q. Mr Challis, I want you to assume that Mr Atkinson, over the 14 years or so of his employment, was required from time to time, he says seven or eight times in all, to work in the machine room exposed to 100 dBA without any hearing protection for periods up to one and a half hours? A. Yes. Q. Can you express a view as to the probability of that exposure causing permanent damage? A. Extremely unlikely, except in a person who is so, so susceptible, that any high noise would cause - I mean by anything above 80 decibels would cause significant hearing loss. Q. So the jury may compare the amount of energy to which he was exposed, could you compare it with some rock band or disco? What is the equivalent noise exposure to those seven or eight times of an hour and a half? A. That would be equivalent to going to one disco of the type that I am familiar with measuring for one evening of four hours duration." A reasonable interpretation of the foregoing evidence would require account to be taken of two points. The first, is the qualification of the negative answer by the fact that the hearing loss caused would not be "significant". The second is that the answer depends upon the pre-injury state of the subject's hearing. In this case it is known from the history and the audiogram of 1970, that the respondent had already suffered hearing loss and was, to that extent, susceptible to further loss upon exposure to extremely noisy conditions. Mr Challis' oral evidence should be read with the evidence of Mr David Eden, the expert called for the respondent, upon the assumption that the jury, acting reasonably, considered the evidence of both experts. Mr Eden expressed the view: "After joining Costains, he continued to be exposed to noise likely to cause permanent loss of hearing until he retired in 1985. This later exposure was modified by his use of hearing protection. Because of deficiencies in the implementation of Costains' hearing conservation programme, it is possible that URJ COSTAINS (AUSTRALIA) PTY LTD v ATKINSON (Kirby P) 7 protection was not fully effective. It is therefore possible he continued to suffer some loss of hearing during his employment with Costains." For present purposes it must be assumed that the jury preferred the more optimistic estimation of Mr Challis. But this did not exclude the cause of hearing loss and the jury's verdict must be taken to imply that the negligent causation of some hearing loss on the part of the appellant was accepted by them. Otherwise the verdict for the respondent cannot be understood. The complaints of tinnitus were a major feature of the oral evidence of the respondent: "Q. Any sort of noise in your ears? A. Yes. Q. What sort of noise did you have? A. Its hard to explain, but its a sort of buzzing noise in my left ear. Q. And its only in your left ear, is it? A. Yes. Q. Can you recall when you first experienced that buzzing noise? A. No I can't... " Q. And did it occur before the mid-80's? A. I had a slight - in the left ear before the '80's, yeah. Q. Did you notice the noise more on some occasions than others? A. Yes. Q. When did you notice it more? A. Where its very quiet. I can hear it very loud now because its quiet. At night time it seems to be the worst. Q. Does the noise ever interfere with your sleep? A. It probably does but you try and block it out. Q. Well how do you try and block it out? A. I put a pillow over it or put my head on the pillow on that side. Q. And you find that helpful, do you? A. Well it seems to help a bit, yeah." It is relevant to remember that ie appellant accepted ie respondent as an honest witness, whilst not accepting accuracy about dates. In the appellant's case, Mr David Keck, audiologist, was called. Of the tinnitus he said this: "Q. And I want you to assume that Mr Atkinson has indicated that this buzzing sound seems to affect him more when there is no ambient noise, when things are quiet. Is that consistent - A. That's very common. Q. He's also said that he particularly notices that at night-time when he's endeavouring to go to sleep. Is that consistent with your experience? A. Yes. Purely because there's no other noise to mask it out. Q. He's also said that he seems to get some relief from the buzzing in the ear if (he) puts that ear, which is the left ear, against the pillow? A. Relief from the noise? Q. Yes? Q. When he puts his head against the pillow? Q. Yes? A. I'm not sure why that would be, actually. I can't say I've had that said to me before. Q. The phenomenon of tinnitus is that well understood by the medical profession and audiologists? 8 UNREPORTED JUDGMENTS A. Not at all, no and it may be that - I'm a little bit interested in why he said this-about his pillow but whether he's actually had it investigated by an ears, nose and throat specialist. If he hasn't it might be worth his while but, yes. Q. You're involved in tinnitus research project- Yes. -- at the time? That's right. Is that so? . Yes. Q. You're able to say that it's not well understood? A. Not at all, no. The theory behind it is very difficult to work out and basically it is a matter of using previous success in some cases to try and investigate possible reasons as to why that person got rid of their tinnitus to move on to the next step in the research and I'm just trying to indicate we're only - we don't have a real handle on it. We're just trying to grab at any bit of evidence that we have to look at it. Q. From the people who you have examined and interviewed with industrial deafness, has tinnitus been a common companion to industrial hearing loss? A. Yes it is. It's a very common - but the data seems to indicate that about 30 percent of people who have tinnitus have had excessive or have had noise exposure of a significant amount. Q. And the tinnitus, can that be a severe symptom? A. It can be worse than the hearing loss, yes." From the foregoing evidence, the appellant repeated its submission that it was open to the july to conclude that the tinnitus suffered by the respondent was unconnected with his hearing loss, or certainly unconnected with hearing loss in the employ of the appellant. In my view that would be an unreasonable construction of the evidence. Clearly, Mr Keck is saying that tinnitus is a "very common" companion to industrial hearing loss. Upon the assumption that the jury must be taken to have acted upon the evidence, viz that the respondent had established negligent exposure to excessive noise in the employ of the appellant, it must be assumed that some hearing loss was caused. This would reasonably require some allowance for the "common companion" to industrial hearing loss, viz tinnitus. When, to the foregoing is added, some provision for the numerous social and familiar disturbances of which the respondent complained, the jury's verdict of $5,000 is revealed to be appealably low. It just cannot be reconciled with the fundamental hypothesis of the verdict, which is that the jury accepted that the appellant had exposed the respondent negligently to undue industrial noise. Once that conclusion is faced up to, the award of $5,000 is clearly inadequate. It is true that the jury could have rejected the claim altogether and that was the major thrust of the appellant's case at trial. It occupied the bulk of PR Bell DCJ's charge to the jury. A verdict for the defendant in the action would not have been surprising. But once the jury brought in a verdict for the respondent, their award had to be more than $5,000. Like the trial judge, I am inclined to infer from the verdict either that the jury compromised their doubts about the issue of liability, or that they failed to understand the way in which they should approach the calculation of damages. Even taking the evidence of additional damage to hearing and tinnitus at the level most favourable to the case for the appellant, the verdict of $5,000 is appealably insufficient. Once this conclusion is reached, it was open to PO>O> URJ COSTAINS (AUSTRALIA) PTY LTD v ATKINSON (Sheller JA) 9 the trial judge to make his order requiring a new trial. That sustains the order. The fact that some of the reasoning offered by PR Bell DCJ may be open to criticism is irrelevant so long as the order is shown to be correct. As it is. ORDERS. 5 I would dismiss the appeal. In accordance with the request of the respondent, I would reserve the question of costs. Sheller JA I agree with Kirby P. 10 1. Appeal dismissed; and 2. Costs reserved. COUNSEL: Appellant: CG Gee QC/G M WatsonRespondent: BS Robison SOLICITORS: 20 Appellant: Sparke, Helmore and Withycombe Respondent: Maurice May and Co3040