BATTAGLIA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and COLE JJA 4 December 1995, 19 December 1995 [1995] NSWCA 42 Industrial injury — Trial by jury — Objection to Summing-up, not taken at trial — Objections to Directions upon compensation tax entitlements and upon proof of mnitigation of damages — Quantum APPEAL from Common Law Division — Judgment following trial by jury — Industrial injury, judgment for $174,200. OBJECTIONS TO SUMMING-UP — Not taken at trial — Objections should not be allowed to be taken now. OBJECTION TO DIRECTIONS upon compensation tax entitlements (Fox vy Wood tax payments) — Directions satisfactory. OBJECTION TO DIRECTIONS upon proof of mitigation — Directions satisfactory. QUANTUM OF DAMAGES — Verdict open to jury on evidence — not appealably low. ORDER: Appeal dismissed with costs. Mahoney JA The plaintiff Mr Carmelo Battaglia was injured on 10 February 1985 in the course of his employment with the defendant Australian Telecommunications Commission. He sued the Commission for damages. On 3 April 1992, after a trial before McInerney J and a jury, the plaintiff was awarded a verdict of $ 170,000. To this was added interest of $4,200. The plaintiff has appealed to this Court against the judgment awarded to him. It was at the time noted that "the worker's compensation figure was $128,045". Mr Battaglia suffered injuries of some severity and it may be the amount accruing to him as the result of the present litigation is such that it has influenced his decision to appeal. Mr O'Brien, counsel for the plaintiff on the appeal, indicated that there were three grounds on which the appeal was pressed: (1) that his Honour misdirected the jury in relation to (as I shall describe them) the plaintiffs compensation tax entitlements; (2) that his Honour misdirected the jury in relation to a particular matter relevant to the onus of proof touching mitigation of damages; and (3) that the damages awarded by the jury's verdict were appealably inadequate. Before coming to deal with these grounds it is appropriate to deal with a preliminary matter. It is accepted that, in relation to the suggested defects in the summing-up, no objection was taken at the trial. No objection at all was taken in relation to the compensation tax entitlements of the plaintiff; in relation to the onus of proof of mitigation, his Honour was asked by counsel for the plaintiff to 2 UNREPORTED JUDGMENTS give a further direction, his Honour gave a further direction, no objection was taken to the directions given and counsel for the plaintiff indicated that no further directions were required. Mr Branson QC, for the Commission, submitted that in these circumstances the plaintiff should not be permitted to press the objections to the summing-up. The fact that no objection has been taken to a defective summing-up does not in all cases prevent the objecting party taking objection on appeal: there are circumstances in which, notwithstanding the absence of objection at the trial, such objection may be taken. In the recent decision of the High Court in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39, it was said that the "court's jurisdiction to order a new trial depends upon the demands of justice" but that what is done at the trial "is an important consideration and will affect the exercise of the court's jurisdiction". But it is not left to the decision of the appellate court, as on a uncontrolled or undefined discretion, to determine whether an objection not taken at the trial may be pressed on appeal. There has, I think, been no definitive and exhaustive statement of when failure to take an objection at the trial prevents the objection being taken on appeal. Where it appears that a party has been content to allow the case to go to the jury upon the basis of the summing-up given without objection and has done so for reasons which were or are to be inferred to have been of advantage to that party, the Court will (exceptional cases apart) not allow the point to be taken on appeal: see generally Burchett v Kane (1980) 2 NSWLR 266 at 278 and the cases there referred to. Absent good reasons to the contrary parties are to be held to the position they took at the trial. If this were not so, the burden of successive proceedings could be crushing. But in my opinion the matter does not stop there. There are cases in which an objection not taken at the trial may not be pressed on appeal which are not cases in which the party has, in this sense, consciously or inferentially chosen the field of debate in this way. Experience shows that there are cases in which a point is not taken without such intent or even by error or negligence. In some of these cases, the circumstances may be such that justice would not be done if, on appeal, the point could be taken. For example, in some cases if the point had been taken the defect could and would have been cured by additional evidence called by the other party or by a variation in the summing-up. In some cases the burden of the delay or costs of a long and complicated trial may be such that to order a new trial because of the defect in the summing-up would cause an injustice which could not be cured by directing the appellant party to pay costs. I do not mean by this that the parties to litigation are not, in principle, entitled to have the disputed issues left to the jury upon a proper legal basis and following proper directions as to the facts: decisions such as Holford v The Melbourne Tramway and Omnibus Co Ltd (1909) VLR 497 and Burston v Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143 have from time to time been cited in this regard. See Burchett v Kane at 275 et seq and the cases there referred to. A party is entitled to justice according to the law: the courts do not sit under trees. But rules which are essentially rules of procedure are different from rules of substantive law which embody the considered decision of the law as to where justice lies. The rule of substantive law that damages must be paid for a breach of contract embodies a considered decision as to what in a given case justice requires. The rule that a trial is to be conducted in a particular way is not of that kind; it is, in function, a mechanism to assist in achieving the fair trial of the URRATTAGLIA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Mahoney JA) 3 dispute through proper procedure. If, in the particular case, fairness will not be achieved by the application of such a rule, it may be put aside. The application of these principles in the present case requires an examination of the nature of the defects suggested to have occurred in the summing-up. (1) THE PLAINTIFF'S COMPENSATION TAX ENTITLEMENTS: It is settled that, where a plaintiff has received worker's compensation and is required, upon obtaining a verdict in a common law proceeding, to refund the compensation payments, he is entitled to recover from the defendant in the common law proceeding the tax which he has paid upon those compensation payments: see Fox v Wood (1981) 148 CLR 438 at 442. It is accepted that in this case the plaintiff was entitled to have such amount included in his verdict. It was agreed the amount was $17,892.11. The judge directed the jury that that amount was to be included in the plaintiffs judgment. However, the suggestion for the plaintiff was that the terms of the directions given by the judge were such that that amount $17,892.11 was "the amount agreed between the parties for past lost wages'. It was submitted that the jury had so understood the directions and accordingly had not included in the verdict any (other) amount representing the wages already lost by the plaintiff. I do not think that this is what occurred. The summing-up followed addresses to the jury by the two counsel involved Mr Barry QC and Mr Hall QC. As the summing-up makes clear, the judge framed his summing-up having regard to the terms of the addresses of counsel. It is, I think, apparent, that the judge did not cover every detail of the matters relevant to the jury's verdict but, to the extent that he was entitled to do, structured his summing-up in the light of what counsel had said. However, his summing-up deals at length with the claim for past wage loss. As appears from the summing-up, there was a claim for some $133,000. This was contested: the contest on this matter was, it would appear, "really the burning issue in this case". I am satisfied that, having regard to the form of the summing-up as a whole, there was no basis for misunderstanding the effect of the summing-up in this regard. The jury would not have been misled. But, if there was a basis for misunderstanding, it was one which could have been readily removed had objection been taken. If there was a basis for misunderstanding, the reason why objection was not taken was, I think, because neither counsel at the time saw the summing-up as providing such a basis. In such circumstances, I do not think that the point, not taken at the trial, is one which the interests of justice warrant being allowed to succeed on appeal. (2) THE ONUS OF PROOF OF MITIGATION: It was submitted that the trial judge erred in the way in which he directed the jury upon the issue of mitigation. As I have indicated, there was serious contest at the trial as to what should be included in the verdict in respect of loss of economic capacity - wages - between the injury and the trial. The Commission's claim was that the plaintiff was totally incapacitated for work only for a portion of this period and that thereafter he could and should have obtained work of a lighter character and derived income from that work. The plaintiffs case was that he was totally disabled and could not and did not obtain work prior to the trial. It was accepted that the onus lay upon the defendant Commission to satisfy the jury that, from the particular date, the plaintiff could and should have mitigated his loss by obtaining such lighter work. The judge so directed the jury and there was, at the request of counsel, an additional direction given in this regard. 4 UNREPORTED JUDGMENTS On appeal, the point pressed was a narrow one. It was submitted that the judge erred in that, in giving such directions as to onus of proof of mitigation, he did not tell the jury in terms that that onus involved that the defendant should establish that, at the relevant time, work was available for the plaintiff to do. Neither party directed attention to this matter in relation to the summing-up. (They may have done so in address). This may have been because of the circumstances of the case. In substance, the plaintiff made no approach to the Commission to obtain work, including light work. The defendant contended that he spent his time working in the shop conducted by his wife. He neither approached the defendant for such work nor sought such work otherwise. The defendant did not, perhaps, establish in terms that light work was available during the whole of the relevant period to the trial. But it showed that such work was available for at least a portion of that time. The question of onus in relation to the provision of light work appears never to have been the subject of contest between the parties. Had the matter been in contest, the defendant could and would no doubt have produced evidence in that regard. A complete and exhaustive direction as to onus of proof of mitigation would no doubt have included a direction that it was for the defendant to show that relevant work was available at relevant times. But, in my opinion, where the matter was not a matter of substantial contest, it is, I think, not necessary for a judge to deal with it. In the circumstances, 1 see no defect in the judge's summing-up. However, if there was such a defect, it is plainly one which could have been cured by evidence and/or by an additional direction. In my opinion, the interests of justice do not require that the point be taken at this stage. For these reasons, in my opinion, this ground of appeal should not be upheld. (3) QUANTUM OF DAMAGES: It was submitted for the plaintiff that, when the components of the verdict are examined, it is to be inferred that the jury failed to address the questions before them. In order to deal with this submission, counsel have referred to the quantum of the particular aspects of damages. They have done so in general terms and w shall, in dealing with this submission, deal with them in terms of round or approximate sums. The verdict of the jury was for $170,000. The total of the out-of-pocket expenses and compensation tax entitlements to be included in the verdict was $35,433. Accordingly, it may be inferred that the jury awarded some $134,567 essentially for future economic loss. past economic loss and general damages. FUTURE ECONOMIC LOSS: It was open to the jury to conclude that, injured, the plaintiff could do light work and to find that the difference between his wages, uninjured and injured, was of the order of $100 per week. He was fifty-eight years of age at the trial. There was a contest as to whether, uninjured he would have worked to sixty or sixty-five. He claimed he would have worked to sixty-five but the jury could, I think, have concluded that he would have worked for a lesser period. His loss was of the order of $5,000 per annum. If the jury concluded that he would have retired at sixty, his loss was of the order of $10,000. The amount which must have been awarded for this component may be assessed in this way. PAST ECONOMIC LOSS: This loss was calculated by reference to three periods. The plaintiff was injured on 10 February 1985. It was accepted that he was totally incapacitated for work until 25 June 1986. His wage loss for that period was of the order of $23,287. URJ BATTAGLIA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Cole JA) 5 He resumed work on light duties on or about 19 June 1991. Between that date and the trial his relevant loss was of the order of $100 per week, ie, some $3960. The contest between the parties related mainly to the third period, between 26 June 1986 and 19 June 1991. His treating doctor told him that, from June 1986, he should return to work: this was referred to in the summing-up. If the jury accepted this, and concluded that he could and should have returned to (light) work at about that time and that such work was available to him, his loss, as discussed at the trial, was of the order of $26,260. On this basis, the jury could, I think, have found his pre-trial economic loss to have been a sum based upon these three sums, $23,287, $3,960 and $26,260. They could accordingly have found his pre-trial economic loss to have been of the order of $53,500. Accordingly, they could have found his future and past economic loss to have been of the order of $64,000, more or less. On this basis, the award of general damages contained in the relevant portion of the verdict, $ 134,567, was of the order of $68,000, more or less. Having regard to the nature and extent of the plaintiffs injuries and the effect of them upon him, I conclude that such an award for general damages would have been within the boundaries of a sound discretionary judgment. I have examined the implications of the jury's verdict and the components of it broadly upon the basis of the matters referred to in argument. The principles to be applied in considering whether the trial miscarried in this regard are not in issue and have not been argued. I am not satisfied that it is to be inferred that the jury, in awarding the verdict they did, failed to perform the duties which were cast upon them. This submission should, in my opinion, not be accepted. I am appreciative of the difficulties facing the plaintiff by reason of the quantum of the worker's compensation payments which are to be taken from his verdict. I have therefore examined in detail the probable components of the jury's verdict. I have summarised the approach which, I think, was open to be taken by them. Considering the conclusions which were open to the jury, I am not satisfied that the judgment should be set aside. In my opinion, the appeal should be dismissed with costs. Priestley JA I agree with Mahoney JA. I note that the parties agreed at the trial that there was an onus on the Commission to show that the plaintiff could and should have mitigated his loss in a particular way. There was no argument about this on the appeal. I need therefore say nothing more about it in this case than that I think a different view about the approach to mitigation is preferable: see TCN Channel 9 v Hayden Enterprises (1989) 16 NSWLR 130 at 161-2. In my opinion the appeal should be dismissed with costs. Cole JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for the Appellant: AJ O'BRIEN Counsel for the Respondent: CC BRANSON QC/SJ BURCHETT Solicitors for the Appellant: GALLUZZO GOLOTTA ADRIANO SIMONE (City Agents, Conway MacCallum) 6 UNREPORTED JUDGMENTS Solicitors for the Respondent: AUSTRALIAN GOVERNMENT SOLICITOR