COMMISSIONER FOR MAIN ROADS v FRANKS [1997] NSWCA 74

COMMISSIONER FOR MAIN ROADS v FRANKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 14 March 1997, 14 March 1997

[1997] NSWCA 74

ADMISSIBILITY of evidence — summing up to jury — no questions of principles.

Cole JA A jury, required to assess damages only, awarded the respondent $511,000. After deduction for workers compensation payments that resulted in a judgment in the respondent's favour in the sum of $497,659.32. The appellant has challenged the sum awarded as being excessive and has also challenged, by various grounds of appeal, the admission of evidence by Bruce J regarding:

(a) the possible requirement for ongoing medical treatment;

(b) evidence from a Dr Robertson and Miss Batchelor concerning the causal link between brain damage and lead intoxication.

The appellant contends that the trial judge erred in not deciding at the end of the plaintiff s case whether the casual link between brain damage and lead intoxication had been established, implicitly submitting that, had such a decision been reached it ought to have been that such link had not been established.

By another group of grounds of appeal the appellant contends that the trial judge's summing up was defective in the following respects:

(a) His Honour inadequately directed the jury regarding the scope and effect of cross-examination;

(b) His Honour's directions regarding future economic loss were misleading, particularly in relation to vicissitudes.

In my judgment none of the grounds of appeal should be sustained.

It was the respondent's case that as a result of working for the appellant as an ironwork cleaner on the Sydney Harbour Bridge, he had been subjected to lead intoxication. This lead poisoning had resulted in both physical and psychological consequences. Particularised as continuing disabilities were an anxiety state, loss of concentration and comprehension, stiffening of muscles, nausea and loss of co-ordination, phobic reactions, insomnia and loss of libido!. The particulars claimed continuing depression and memory impairment, cognitive impairments, alleged organic brain damage and neurological disruption, particularly to frontal lobe functions2.