WESTERN SYDNEY AREA HEALTH SERVICE v HART SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 5 July 1996 [1996] NSWCA 556 DAMAGES — quantum — conflicting expert evidence — directions to jury. A jury awarded the plaintiff $130,000 for repetitive strain injuries arising from work as a cleaner. The defendant appealed on the grounds that the damages were excessive and the jury had awarded damages for injuries to the shoulder which could not be supported on the evidence. It also relied on the failure of the trial judge to give a fuller direction to the jury about the significance of the plaintiff's pre-injury degenerative condition in accordance with Wilson v Peisley (1976) 50 ALJR 207. No redirection had been sought from the trial judge. HELD, dismissing the appeal: (1) The appellant was not entitled to rely on the non-direction by the trial judge; (2) The jury were entitled to find that the plaintiff's shoulder problems were attributable to the negligence of the defendant; (3) The award was well within the limits of the claim for economic loss and could not be disturbed. Handley JA. This is a defendant's appeal from a District Court judgment following a trial before Judge Cooper and a jury in an industrial accident case. The jury returned a verdict for the plaintiff for $130,000 which after adjustments resulted in a judgment for $140,028.22. A number of grounds are taken in the notice of appeal but most of these have been abandoned. The remaining grounds presented by Mr Hoeben SC for the appellant concerned the size of the verdict and the failure of the trial judge to give a fuller direction to the jury about the significance of the plaintiff's pre-injury degenerative condition in her back in accordancewith the principles discussed in Wilson v Peisley (1976) 50 ALJR 207. Mr Hoeben, however, acknowledged that no redirection was sought from the trial judge by counsel then appearing for the defendant, and in these circumstances I am of the view that any attempt to challenge this verdict on the ground of non-direction by the trial judge fails at the threshold. The remaining questions concern the size of the jury's verdict. The plaintiff's claim was basically for repetitive strain injuries to her hands, wrists, forearms and elbows arising from work as a cleaner at Mount Druitt Hospital. Each day she had to separate parts of the waste paper containers and ashtrays in the hospital in order to empty them. The parts fitted snugly together and the plaintiff had to exert pressure on the ashtray section with the thumbs and forefingers of both hands in order to separate them. This work repeated daily over a long time resulted in pain, and in due course disability. By the time of the trial, the plaintiff had largely recovered from the disabilities associated with her repetitive strain injuries but this of course was because she had ceased to work at the hospital. There was no reason to suppose she would not suffer a recurrence of symptoms if she had to do further work involving similar strains on her wrists and forearms. Mr Hoeben's principal point was that the plaintiff's continuing problems at the date of trial were in her left shoulder and he submitted that the jury acted unreasonably in awarding damages to the 2 UNREPORTED JUDGMENTS plaintiff for any such disability. He drew attention to the fact that the plaintiff's expert on liability, Dr Olsen,considered that the difficulties experienced by the plaintiff would be confined to her wrists, forearms and elbows and would not affect her shoulders. On the other hand, the plaintiff's doctor who gave evidence, Dr Carr, considered that the plaintiff's problems in her shoulder were due to a microtear caused by her work. The plaintiff had to exert some force through her thumb and forefinger on these rubbish bins in order to separate them. The jury could accept the evidence of Dr Carr on this question, and conclude as a matter of commonsense that the pulling action required to separate these containers was likely to produce the microtear spoken of by Dr Carr. In any event Dr Olsen in cross-examination at pp 70 and 71 of the appeal book conceded that the shoulders of a worker engaged in these duties could possibly be affected. He did not think that the effects would be significant, but it was open to the jury to prefer his concession supported as it was by evidence of the nature of the task and the evidence of Dr Carr. In my judgment, therefore, it was open to the jury to find that the shoulder problems experienced by the plaintiff at the date of trial were attributable to the negligence of the defendant. The plaintiff's claim before the jury for economic loss totalled $223,886.02. The jury's verdict of $130,000 was well within the limits of this claim, and cannot be said to be so unreasonable as to attract the interference of this Court. In my judgment the appeal fails and should be dismissed with costs. Clarke JA. I agree. Meagher JA. I agree. MILNE: There was an offer of compromise put on very early in this case before the trial. Clarke JA. What was the order of costs in the first instance? MILNE: We ask for indemnity costs here, your Honour. Handley JA. I think, Mr Milne, that generally speaking, we have taken the view that the offer made before trial meets with an appropriate order at trial if the verdict is such as to attract that order. It doesn't carry automatically to the appellant stage. MILNE: So that means that until trial, indemnity between trial and now, ordinary costs? Clarke JA. If you'd like to make another offer then. MILNE: A bit late now, your Honour. Orders accordingly. Counsel for the appellant: CRR Hoeben Solicitors for the appellant: Pieterse and Pieterse Counsel for the respondent: DB Milne QC Solicitors for the respondent: McClellands