CLUTHA DEVELOPMENTS PTY LTD v DOWD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and POWELL JJA 13 September 1995, 5 October 1995 [1995] NSWCA 79 DAMAGES — comparison of like verdicts — whether permissible in industrial deafness cases with many common features — held: Not permitted. Planet Fisheries Pty Ltd v La Rosa and Anor (1968) 119 CLR 118 appld. DAMAGES - deafness - tinnitus - plaintiff aged sixty-four - jury verdict $70,000 - held: Appealably excessive - reduced to $40,000. LAW REFORM - comparison of like verdicts - possible need for statutory authority. LAW REFORM - jury trial - possible need for larger judicial facility to dispense with juries in busy lists. DAMAGES - comparable verdicts - facility of comparison in Court of Appeal - jury's verdict in favour of retired plant operator claiming deafness and tinnitus - verdict of $70,000 - appeal against verdict as excessive - whether Court may compare other verdicts in like cases held: (1) (by the Court): Such comparison is forbidden by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; and Moran v McMahon (1985) 3 NSWLR 700 (CA); (2) (Per Kirby P): It is difficult to justify, conceptionally, the facility of comparison in defamation cases allowed by Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44. Consideration should be given to a statutory facility of comparison. DAMAGES - deafness - tinnitus - jury verdict of $70,000 - plaintiff plant operator aged 64 suffers deafness after working in noisy environment for many years - whether damages appealably excessive - held: (1) It was a serious matter to deprive a party of a jury's verdict, given the advantages which the jury had of assessing damages and reflecting community values. Brown v Dean and Anor [1910] AC 373 (HL) appld; (2) But the judgment was appealably excessive. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 appld. LAW REFORM - damages for personal injury - comparison of like cases - desirability of statutory facility for comparison referred to by Kirby P. LAW REFORM - jury trial - delays in country lists - statement of trial judge that elderly plaintiffs dying before cases can be reached having regard to delays in jury trials - statement by Kirby P on the need for a larger facility in judges to dispense with jury trials where the administration of justice or the proper management of the list, suggests that course. ORDERS 1. Appeal allowed; 2. Set aside the judgment of the District Court (PJ Phelan DCJ) following the jury's verdict; 3. In lieu thereof, order that the amount of $40,000 be substituted for the amount of the jury's verdict; 5. The parties to bring in Short Minutes of Order within 28 days to give effect to the decision of the Court, providing for interest and workers' compensation deductions; and 6. Costs reserved. Kirby P The facts are set out in the reasons of Powell JA. The question is whether the judgment of $72,326.26 (being the jury's verdict, plus interest, minus workers' compensation payments) is appealably excessive. THE PROPRIETY OF THE VERDICT AND ADVANTAGES OF THE JURY 2 UNREPORTED JUDGMENTS Following the jury's verdict, an immediate application was made to the trial judge (PJ Phelan DCJ) for an order under the District Court Act 1973, 126, that there be a new trial of the action. His Honour declined that order. This Court is not concerned to review his Honour's decision in that regard. The Court has proceeded directly to consider, for itself, many of the issues which were debated in support of the application under s126. For a time, I was inclined to the opinion that the jury's verdicts although very high, represented an amount which this Court would not be authorised to disturb. The jury had many advantages ova this Court. It had the advantage of hearing the case in a trial lasting more than a week. It saw the respondent give his evidence. It was drawn from the community in the region in which the appellant operated and the respondent lives. It is always a serious matter to deprive a party of a jury verdict. See Brown v Dean and Anor [1910] AC 373 (HL), 374. The duty of this Court, in reviewing the verdict, is to assume that the jury performed their function in accordance with law and took a view of the evidence, reasonably open to them, which was most favourable to the respondent to the appeal. See Progress and Properties Ltd v Craft (1976) 135 CLR 651, 672; Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 227. It would certainly have been open to the jury to take the view that the respondent's life was profoundly damaged by his hearing loss and tinnitus. He described the difficulties which he had with ear plugs and the way in which they protruded from his ears. He described his difficulty in speaking with people. He elaborated the constant ringing in his ears which he had suffered from 1974-75. He said that the ringing was constantly going on "like crickets". It woke him up at night. These disabilities made it hard for the respondent to relate to others in the environment in which he carried on his life: in hotels, at the races, etc. It was extremely hard for him to hear the radio or television, including the description of the races on the Sky Channel. It was open to the jury to infer that these were important pleasures of the respondent, which had been profoundly diminished by his hearing loss and tinnitus. A jury trial has certain disadvantages, as the long hearing of this case demonstrates. But one of the advantages of the continuance of jury trials in this State is that it provides a sometimes useful corrective to judicial determination of personal injury claims, both on the issue of liability and on the issue of damages. It is all too easy for judges to approach the issue of damages on the footing that what is required is the application of formulae. Juries are much more likely to bring community values to the task. That is why an appellate court, necessarily comprising judges, must be very cautious before concluding that a jury's verdict is out of all proportion to the proper assessment of the complaint of pain, suffering and interference in the enjoyment of life. It is always possible that, in such matters, juries are right and judges wrong. COMPARATIVE JUSTICE AND THE FUNCTION OF APPELLATE REVIEW. However, the provision of an appeal to this Court is designed to ensure justice to the parties in cases where the judgment at trial is clearly wrong. It is natural for this Court to hesitate, particularly in the case of a jury verdict and especially in one which resulted from a trial that took such a long time. The costs, public and private, which are lost by setting aside the judgment that followed the jury's verdict (even if no retrial is contemplated) are notionally very high. These are the URJ CLUTHA DEVELOPMENTS PTY LTD v DOWD (kirby P) 3 considerations which led me to a preliminary view that it was open to the jury to value the respondent's complaints of hearing loss and tinnitus in the way they did. However, upon further reflection and having read the opinion of Powell JA (with which Sheller JA agrees), I am not prepared to press my tentative opinion to the point of a dissent. I certainly agree with Powell JA that, at the moment, this Court is forbidden to engage in a precise comparison of verdicts and judgments in hearing loss and tinnitus cases said to be comparable. Although I remain of the view which I expressed in Moran v McMahon (1985) 3 NSWLR 700 (CA), 709, and although some tentative steps appear to have been taken by the High Court in the direction of normative decisions in damages cases, so far these have been limited to defamation proceedings. Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44. Just why defamation proceedings should be conceptionally regarded as different from other damages cases, so as to permit comparisons, is difficult to justify or explain. Before the High Court reviews the holding in Planet Fisheries Pty Ltd v La Rosa and Anor (1968) 119 CLR 118, 124f, and the common law works out these inconsistencies, statutory authority may be given to courts in this State to perform comparisons, at least of a broad kind. Ido not say that it would be feasible, or appropriate, to compare judgments in every case. Some cases have a greater element of individuality than others. But in damages claims for industrial deafness and tinnitus by retired men, after many years of working without protection in excessively noisy environments, there are sufficient elements of similarity to suggest the utility, and justice, of comparisons. This Court is obliged to do no more than to rely upon general experience which this Court is expected to pick up in the performance of damages reviews in cases of this kind. On this footing, it is quite difficult to be judicial at all, for what is called on is apparently a kind of instinctive reaction from the communal bosom of the Court, but without reference to actual decisions. It will be plain that I have little confidence in this mysterious process of judicial osmosis. Any assurance that I might have had was shattered by hearing, consecutively, two cases involving retired plant operators who worked for the appellant and a like organisation for long periods and who complained of similar.symptoms of hearing loss and tinnitus. One of the plaintiffs recovered a verdict of $5,000 from a jury and the other (the respondent) a verdict of $70,000. See Costains (Australia) Pty Ltd v Atkinson, Court of Appeal (NSW), unreported, 5 October 1995. How one derives communal wisdom from this experience, I am at a loss to say. I shall therefore resort to the trusty formulae that are used by judges in such cases. "Do the best I can" and "taking into account all relevant circumstances" and "acknowledging that the verdict is high, very high, and greater than I would myself have awarded in this case", I am not prepared to disagree with the opinion of my colleagues that it is "so high that it reveals error authorising this Court to set it aside". I do this with no great conviction, but in obedience to the approach which is required by authority presently binding on me. Having taken this step, I am in agreement with the reassessment which the parties invited and which Powell JA has proposed. I also agree that costs should be reserved. ADDRESSING PROTRACTED JURY TRIAL DELAYS. 4 UNREPORTED JUDGMENTS In parting with this case, I call attention to the remarks which PJ Phelan DCJ made when dismissing the application for a new trial. After his Honour had come to a conclusion (similar to my own original view) that the jury's verdict "represent(ed) the mind of the community", his Honour went on: "There's another matter that concerns me and that's justice to the plaintiff and to a lot of plaintiffs who, I understand, are waiting in the wings to have their matters dealt with in this particular court. If my information is correct, and I go merely here by memory, there are more than forty of these cases lined up. In each of them the plaintiff does not seek a jury and the defendant does. Given that we have been able to accomplish only two trials, in the twelve sitting days thus far occupied, in the deafness cases, on that sort of average it will be ten years before that list is completed. That perhaps has a certain attraction to certain parties, particularly with the interest component on general damages now being so low. It's quite a profitable sort of business to hang onto money... There are before me in these matters one dead man and an application by another dead man. It could well be a number of these plaintiffs will die in the ten years that I anticipate it will take to clear this list." The mischief to the administration of justice, which is presented by his Honour in the telling remarks which I have just quoted, deserves the attention of Parliament. I do not say that jury trials in personal injury cases should be abolished. The facility of an alternative mode of trial, which more closely reflects community values, is actually quite useful. But it is plain, that, for the problem of deciding cases of the kind represented in this litigation, a larger statutory facility to dispense with juries may be appropriately granted to trial judges. The judge should be entitled to take into account any special considerations of the administration of justice such as the proper management of the court's list. The verdict of $5,000, to which I have referred, was brought in after a trial which consumed seven sitting days of the District Court. The appeal could not be so easily disposed of as this one, for the trial judge there (PR Bell DCJ) ordered a retrial on all issues. Unless Parliament addresses ie problem referred to by PJ Phelan DCJ, more plaintiffs will die whilst waiting their protracted turn in the list of the District Court at Muswellbrook, at the present rate of case disposals and appellate review. ORDERS. I agree in the orders proposed by Powell JA. Sheller JA I agree with Powell JA. Powell JA Of the various grounds of appeal originally taken by the Appellant in its Notice of Appeal, only one was pressed on the hearing of the appeal, that being that the amount of damages awarded by the jury when, on 24th March 1992, at the District Court at Muswellbrook, they found a verdict in favour of the Respondent in the sum of $70,000.00, was appealably excessive. Although Mr CG Gee QC, who appeared with Mr GM Watson for the Appellant, did not, nor did Mr BS Robison, who appeared on the hearing for the Respondent, refer the Court to any authority in which the principles to be applied in such a case as this is were discussed, I did not understand him to suggest that the principles to be applied were other than those which were discussed by Gibbs J (as he then was) in Precision Plastics Pty Ltd v Demir! where his Honour said (at 369): 1. (1975) 132 CLR 362 URJ CLUTHA DEVELOPMENTS PTY LTD v DOWD (Powell JA) 5 "Tt is unnecessary to discuss at length the principles that govern an appellate court in the performance of its task when it is called upon to review an assessment of damages for personal injuries. Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and n has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered. But where the award was made by a jury, the test is even more stringent. In such a case (assuming mat there was no misdirection) the appellate court will only interfere if it arrives at the conclusion that the damages are so large or so small as to be unreasonable - so excessive or so inadequate that no jury could reasonably have awarded them or, as is sometimes said, out of all proportion to the circumstances of the case. As authority for these propositions it is sufficient to refer to Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, at 613-614; Scott v Musial [1959] 2 QB 429, at 437-438; Coates v Carter (1951) 82 CLR 637, at 541-543; and Miller v Jennings (1954) 92 CLR 190, at 194-196". That being so, the question for the Court is,whether, in all the circumstances of the case, the Award of damages which was made by the jury is so large as to be unreasonable. The facts which gave rise to the proceedings at first instance, and which give rise to the present appeal may be stated shortly. They are as I set out below. The Respondent, who is now in his sixty-fourth year, has spent by far the greater part of his working life of some 45 years, or thereabouts, working in what can only be described as a variety of noisy environments. Some indication of the nature of those environments will be given when I record that, apart from what appears to have been a period of 2 years or thereabouts, when on leaving school at about the age of 14 years, the Respondent appears to have worked in a butcher's shop, he seems to have spent virtually the whole of his working life as a plant operator or working in some similar capacity. Thus, it is said that in 1948 and 1949, the Respondent worked for Thiess Bros. at its Newdell open cut mine, operating a Tomapull scraper; that, thereafter, he worked for a time driving tractors, for a time as a winch operator in an underground mine, following which, between May 1952 and February 1955, he was employed by the Appellant for two periods totalling 1 year and 9 months driving such machinery as Euclid dump trucks, TD 24 bulldozers and Caterpillar D8 bulldozers, the latter then being the biggest bulldozer then in use. Although it is not necessary to deal, in any great detail, with the various positions which the Respondent held over the following 15 years, I record that most of them appear to have been on construction sites such as in the Snowy Mountains area during the period when work on the Snowy Mountains Scheme was being carried out, in the Northern Territory, in New Guinea and in a number of other places in Australia, most of those positions involving the Respondent driving heavy plant such as graders, various models of Caterpillar bulidozers, scrapers and the like. Despite the nature of the various environments in which the Respondent worked, and the nature of his activities which he was from time to time required, in the course of his employment, to undertake, it would seem to be the case that 6 UNREPORTED JUDGMENTS at no time during the period from 1948 until 1970 was the Respondent provided by any of his employers with any form of equipment designed to protect him against hearing loss caused by noise. The significance of the year 1970 is to be found in the fact that from about April 1970 up to September 1986, the Respondent appears to have undertaken a number of audiological examinations, five of them apparently being conducted by officers of the Joint Coal Board and the last being conducted by a Mr Keck who is described as having been an industrial audiologist. Without descending to detail, it is, I think, sufficient to indicate that the burden of the various audiological reports which were produced was that, in 1970, there was a degree - not great - of loss of hearing in each ear, which loss increased over the years until 1986 - the significance of which year will later appear - when, after making adjustment for the effect of the aging process, the loss had increased to about 8% in the left ear and 11% in the right ear. The relevance of that material is to be found in the fact that, in the course of the summing-up by PJ Phelan DCJ to the jury, his Honour records the then counsel for the respondent as having said to the jury (Appeal Book 350-351): "You are looking at a man who admits that when he started in the 1970 (sic), he was having difficulty in hearing his mates in crowded situations. That he does not pretend that when he commenced employment with the Clutha (sic) that he was one hundred per cent fit as far as hearing is concerned. But he has nothing like the difficulties that he has now. That there was no tinnitus or ringing sound in the ears back in those days. That n is the defendant... that has caused the tinnitus which is a persisting problem in both ears. Which has been there since the late '70's. Is there now. And will be there for the rest of the plaintiff's life..." It would appear that it was in January 1971 when the Respondent returned to the Appellant's employ at its Foybrook open cut mine, his initial position apparently being one requiring him to operate a Caterpillar D9 bulldozer. At that time, and for some years thereafter, so the Respondent seems to have said, he was not provided with any form of equipment designed to protect him against hearing loss caused by noise - that equipment,so the Respondent appears to say, was not provided until about 1974 or 1975. the first equipment provided being ear muffs, which he said did not fit well, particularly when one was wearing a "hard hat", and the later equipment being in the form of ear plugs. As well as the provision of such equipment at that time, the year 1975 seems to have been the time from which the design of equipment of the type which the Respondent was accustomed to operate was gradually upgraded, cabins being provided for the operators, the cabins being insulated against noise and, later, the cabins being air-conditioned. It was in 1977, or thereabouts, when the Respondent first commenced to operate such an upgraded piece of equipment, a CAT 992C wheel loader, the size and power of which are indicated by the fact that its operating weight was approximately 90 tonnes, its bucket capacity was approximately 10.4 cubic metres (or 13.5 cubic yards), that it was powered by a CAT 3412 turbo charged diesel engine, the gross power of which was 548 kW (or 735 HP), with the fly wheel power being 514.5 kW (or 690 HP). Before that had occurred, however, in about 1974 or 1975, and while he was still operating the Caterpillar D9 bull dozer, the Respondent began to notice that, at times, he had a ringing in the ears, at first, so he says, the noise would go away - this seems to have been until about the end of 1977 or 1978 - but. after that initial stage, the ringing - which he described as "going just like crickets now" (Appeal Book 49) - did not go away. URJ CLUTHA DEVELOPMENTS PTY LTD v DOWD (Powell JA) 7 Some indication of the effect which the loss of hearing and the tinnitus have had upon the Respondent's life are indicated by the following short passages which I have taken from the Transcript. First, the loss of hearing (Appeal Book 50): "Q. Now so far as the symptom that you had before 1971 that you were having difficulty hearing people in group situations did that alter after 1971? A. No it got worse if anything. Q. In what way did n get worse after 1971? A. Well to listen to the radio or the TV or anyone else it's a bit hard to hear if I don't get someone straight alongside talking to me. Q. And what do you mean by 'straight alongside you'? A. Well talk straight to me I'm pretty right. Q. Well do you mean by that 'face to face'? A. Yeah, if I listen to a TV I've got to put my, well to the Sky Channel, I put my left ear to it but I can't watch it and hear it too, I can hear it but can't decipher what it is" and, then, the tinnitus (Appeal Book pp. 49-50): "'Q. And the ringing sound did that affect you in any way? A. Well it does in different ways but I can't hear n and it's there all the time, that's, and, well I can hear you speaking to me all right because you're there but if someone else is speaking I can't hear you, I can hear the ringing here that's all. Q. Well do you hear the ringing more in different situations? A. Yes in a closed where there's walls around where there's no noise and the closed rooms. Q. You hear it more do you? A. Yes. Well outside it doesn't seem to be there but the other noises take it away. Q. Well then did you hear n at night time when you're going to bed? A. Yes. Q. Has it ever affected your sleep? A. No when they're popping they'1] wake me up. Q. Pardon? A. Sometimes it'll sort of come into the other ear too and it'll just pop out and you'll wonder what's happened whether you can made the difference. It makes you wake up and wonder what it is, it's just the ringing starting. Q. Well do you get the ringing more in one ear than the other. A. Yes. Q. What ear do you get the ringing more in? A. The right side, this one. Q. Well then just correct me if I'm wrong are you saying that at night time you go to bed you might have ringing in one ear then during the night you' ll wake up and you'll find that you've got ringing in both ears? A. Both ears, yes. Q. Is that what you're saying. A. Yes. Q. And when you wake up with the ringing in your two ears are you able to go back to sleep? A. Oh yes I'm used to it now. Q. You' ve got used to it, but when you first had that experience did it keep you awake for some time: A. Well you wonder whether it'll ever go away again but, yeah that's all you just wonder when it's going but. Q. And so far as the ringing is concerned as at the present time you have more symptoms with the ringing in your ears in the right ear rather than the left ear is that still he situation? A. Yes, yeah." The Respondent appears to have continued in the Appellant's employ - albeit perhaps at a different mine - operating the same form of equipment as he had done before until January 1991 when he retired. Meantime, however, in January 1986 there was filed on behalf of the Respondent in the District Court at Muswellbrook the Ordinary Statement of Claim which commenced these proceedings, in which Statement of Claim the Respondent claimed, as against the Appellant, damages for negligence - the 8 UNREPORTED JUDGMENTS particulars of negligence, some 26 in number, commencing with failure to provide a safe system of work and concluding with res ipsa loquitur; the particulars of injuries being said to be acoustic trauma and shock; and the particulars of the continuing disabilities being said to include, partial deafness, inhibition in social activities and tinnitus. In the particulars under Ptl2 R4A which were filed later in 1986, those particulars of injuries and disabilities were repeated and a claim - not persevered with at the hearing - was made for "economic loss to the date of trial" and "reduction in earning capacity". Although the proceedings were commenced in January 1986, they did not - due, so it seems, to the state of the list at Muswellbrook - come on for hearing until March 1992. The hearing occupied some 6 hearing days, the evidence apparently occupying some 4 hearing days and counsel's addresses, and the summing-up by PJ Phelan DCJ occupying a little over 1 day, the jury's verdict being returned in the sum of $70,000.00 during the course of the sixth hearing day. It is to be observed that, despite the fact that the Respondent continued in the Appellant's employ until January 1991, the Respondent's case was run on the basis that the Respondent sought to recover damages based only on such part of his injuries as had been suffered by him until 1986. The amount of the damages which the jury awarded the Respondent are thus to be regarded as those flowing from such injuries as the Respondent had sustained up to that time. To the jury's verdict of $70,000.00 PJ Phelan DCJ added an amount of $4,520.00 by way of interest - the basis on which that interest was calculated being revealed by the discussion on that subject which took place between his Honour and counsel (Appeal Book 379-380) - and, after deducting the amount previously paid by way of workers compensation entered Judgment in favour of the Respondent in the sum of $72,327.26. On the hearing of the Appeal, Mr Gee sought first to demonstrate that the award of damages was appealably excessive by referring to two Judgments of this Court (Costain Australia Ltd v Gilmore2; Moss vy Commonwealth of Australia3) the decisions in such cases, so he seemed to suggest, indicated that, in a case such as this, an appropriate amount of damages would have been in the order of $25.000.00. However, with the possible exception, in the case of actions for defamation, suggested by the decision of the High Court in Carson v John Fairfax and Sons Ltd', the comparison of verdicts is not permitted to this Court (Planet Fisheries Pty Ltd v La Rosa5; Moran v McMahon') or, for that matter, to a trial judge, or a jury. Against the possibility that this Court would - as I do - reject that first submission, Mr Gee then sought to demonstrate, by reference to various passages in the evidence to which I do not think it necessary to refer, that the Award of $70,000.00 was out of all proportion to the damage which had been sustained by the respondent. While seeking to support the jury's verdict upon the ground that it had not been demonstrated that it was out of all proportion to the damage which the Respondent had suffered, Mr Robison laid some stress upon two aspects of the evidence, they being: . Court of Appeal 15th April 1992 (unreported) . Court of Appeal 14th October 1994 (unreported) . (1992-1993) 178 CLR 44 - (1168) 119 CLR 118 . (1985) 3 NSWLR 700 AnhRwWN URJ CLUTHA DEVELOPMENTS PTY LTD v DOWD (Powell JA) 9 1. that, as he would have had it, audiometric testing is not a valid measure of hearing loss - the bases for this submission seemingly being, first, that the tests which had in fact been carried out in the present case, demonstrated that their results were unreliable; and, second, that, in any event, for a variety of reasons, it was notorious that the results of such tests are unreliable; and 2. that the significant element in the disabilities from which the Respondent suffered was, not hearing loss, but tinnitus, which, so he suggested, had become progressively worse over the period of the last 20 years, and which would continue so to do over the balance of the Respondent's life, which. statistically, could extend for another 20 years or thereabouts. Notwithstanding the enthusiasm and vigour with which, in his inimitable way, Mr Robison pressed his submissions, I have come to the conclusion that the jury's award, in the present case, was out of all proportion to the nature of the damage which had been demonstrated. Although Mr Robison would appear to have it that.this was not so, it seems to me that the Respondent's claim for damages comprised two elements, they being: 1. a loss of hearing; and 2. tinnitus. While I accept that, for a variety of reasons, errors may occur when audiometric testing is carried out, nonetheless it seems to me, first, that the audiological reports, which form part of the evidence, establish both a progression in hearing loss over the years from 1970 to 1986, and, that, overall, and to the extent to which such loss can be measured, the loss was not great; and while I accept that it was open to the jury to find that, over the period from 1974 or 1975 to the date of the hearing, the Respondent's tinnitus had increased, and that, at times, it was distracting, the passages from the Respondent's evidence would tend to suggest that its effect is now far less distracting than it might once have been. In all the circumstances, therefore, I am of the opinion that this is a case in which the Court might legitimately, and that it ought, intervene and, as the parties have indicated that, if the Court were of that view, it should do so, make its own assessment of the amount appropriate to be allowed for damages. Having regard to the various matters to which I have referred above, I have concluded that an appropriate amount to be allowed for damages would be $40,000.00 and I would therefore propose that the Appeal be allowed and that that amount be substituted for the amount of the jury's verdict. To that amount an appropriate amount for interest would need to be added and as, for the reason to which I will refer below, it would be necessary for the matter to be re-listed for further short argument, I would invite the parties to agree upon the amount of interest to be added. In the normal course I would propose that the Respondent pay the Appellant's costs of the Appeal. However, at the conclusion of his submissions, Mr Robison reminded us that, because an offer of compromise had been served upon the Appellant prior to the hearing at first instance, an application was made to PJ Phelan DCJ for an order that the Appellant pay the Respondent's costs of the trial on an indemnity basis, an application with which his Honour declined to deal at that stage because of the possibility that there might be an appeal to this Court. In the circumstances therefore, I would propose that the costs of the Appeal be reserved for further argument, and that the matter be re-listed at a convenient 10 UNREPORTED JUDGMENTS time so that the Court might then deal with any application, or submissions, which might be made in respect of costs, and also deal with the question of the interest to be added to any verdict. 1. Appeal allowed; 2. Set aside the judgment of the District Court (PJ Phelan DCJ) following the jury's verdict; 3. In lieu thereof, order that the amount of $40,000 be substituted for the amount of the jury's verdict; 5. The parties to bring in Short Minutes of Order within 28 days to give effect to the decision of the Court, providing for interest and workers' compensation deductions; and 6. Costs reserved. COUNSEL: Appellant: CG Gee QC/GM Watson Respondent: BS Robison SOLICITORS: Appellant: Sparke Helmore and Withycombe Respondent: Maurice May and Co