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. The plaintiff called Dr Ibels, clinical Professor of Medicine at the University of Sydney. The Dr Ibels had previously managed patients with lead intoxication. Tests conducted by Dr Ibels showed a lead extrusion of 5.84% micromoles of lead. A toxic lead burden is any burden in excess of 2 mircroboles of lead. Against that background Dr Ibels gave evidence in specific terms that the memory problems, impaired conversation, problems with temper, aggression, irritability, nervousness, headaches, anxiety, lethargy, abdominal upsets and 1. Particulars 11 to 16. 2. Particulars 18 and 19. 3. Appeal Book, p 188T. 2 UNREPORTED JUDGMENTS diarrhoea, muscle aches and pains were all due to lead, and that in the case of the respondent those disabilities would be with him until he died+. He also gave evidence that: "Tt is without doubt that lead intoxication does lead to permanent cerebral damage, brain damage."5 and that "The symptoms that Mr Franks has are of neurological nature and consistent with lead intoxication. I can't answer whether due to brain damage for sure. I am not qualified to answer that." Dr Ibels said that he thought "either a clinical psychologist or an expert in the assessment of neurological function or a psychiatrist or a neurologist would be certainly far better qualified to answer" the question whether Mr Frank's symptoms were consistent with brain damage. Dr Robertson, a specialist psychiatrist and former clinical lecturer in psychiatry at the University of Sydney and an examiner in post graduate exams for the College of Psychiatrists, gave evidence that although he had not previously treated a patient for the psychiatric effects of lead poisoning, he had generally been aware of the possible harmful cerebral effects of heavy metal poisoning and lead and had, when confronted with the case of Mr Franks, improved his knowledge in that respect by library research. After a voir dire, the trial judge permitted Dr Robertson to give evidence that the effect of lead poisoning was to cause diffuse brain damage, particularly to the frontal lobe of the brain. Miss Batchelor, a clinical nueropsychologist holding a masters degree in science and formerly deputy head and of the Department of Psychological Medicine at Westmead hospital and a lecturer in the Department if Psychiatry at the University of Sydney, as well as having held other significant postings and who had studied the effects of lead and assessed patients with lead poisoning®, gave evidence that the tests she had performed upon Mr Franks were consistent with the hypothesis of organic brain damage'. That evidence was given without objection or challenge to her qualifications. It is against this background that the grounds of appeal must be considered. Regarding the grounds of appeal concerning the admission of evidence that there may be a need for ongoing medical treatment from a psychiatrist or nephrologist, it is true that was not opened to the jury, was not particularised and was not the subject of reports served in accordance with the Rules. Nonetheless, in the exercise of his discretion, the trial judge admitted the evidence. Having regard to the particulars which I have cited, and the. asserted permanence of the neurological condition, it is unsurprising that the discretion was exercised in favour of admitting the evidence. It was not suggested in submissions that the judge did not have the necessary discretion, but rather that it should have been exercised adversely to the respondent. I see no error in the exercise of the discretion to admit the evidence. Further, the appellant obtained from Dr Ibels a concession that further chelation was unlikely. There was no evidence of any costs of future medical attention, and the trial judge, in summing up, whilst he addressed past medical 4. Appeal Book, p184-185. 5. Appeal Book p200S. 6. Appeal Book, p1560-Q. 7. Appeal Book, p159R, 162C-F. URJ COMMISSIONER FOR MAIN ROADS v FRANKS (Cole JA) 3 expenses, made no reference to the possibility of future medical expenses. In my judgment this ground is without substance. It is apparent from what I have previously said that there was an abundance of evidence sufficient to justify the admission of evidence from Dr Robertson and Miss Batchelor concerning the causal link between lead poisoning and frontal lobe damage. Indeed, when ultimately called Dr Lord, who was called by the defendant, gave the following evidence: "Q. Would you accept that those symptoms would be entirely consistent with lead poisoning? A. I understand that he had lead poisoning. Q. Given the constellation of symptoms is that not an aspect in which it is likely that he would suffer some organic brain damage? A. That is true. Yes it is." There remains in the first group of grounds of appeal the challenge to the sum awarded as being excessive. The contention was that assuming medical expenses of $44,039.26, economic loss to 9 June 1992 of $6,509.96, superannuation loss of $5,000, economic loss between September 1992 and February 1995 of $62,463.80 and future economic loss, without discount, of $159,236.13, giving a total of economic loss of $277,249.15, the resultant general damages of $233,750 was excessive. It was contended that such a sum could only be achieved if the jury held that the respondent was brain damaged, that the brain damage was linked to the lead poisoning, and that there was likely to be continuing psychiatric treatment and continuing chelation treatment. Any view that the respondent was not brain damaged, or that his brain damage was not linked to lead poisoning would have been perverse. Establishing those two circumstances in my view result in it not being able to be said that an award of general damages of $233,750 was beyond the permissible range. Accordingly this ground of appeal fails. The remaining batch of grounds of appeal, numbers 6, 8, 9, 10 and 14 concern the summing up. The trial judge did not specifically address the manner in which the jury should approach cross-examination. Senior Counsel for the appellant asked his Honour to do so. The only request made to the trial judge was in the following, terms: "T am happy for directions to be given to the jury that you don't think anything I said in cross-examination was worthwhile, but what I am not prepared to suggest they should accept is that there should be no reference to cross-examination, period. The jury may get the idea, having been told that you are the fount of all wisdom - and I'm not meaning to be facetious about it - that they are not to take any notice of anything in cross-examination either way. I would suggest that that that may not be clear that should be made clear." His Honour complied with that request by recalling the jury and directing them that should have regard to such maters as they regarded as important arising in cross-examination. Hid honour said: "I did not mean to suggest to you that you should not consider the cross-examination of any of the witnesses. You should consider it as part of your task of selecting that material which you regard as being proper to base your conclusions on." No request was made to his Honour to deal in detail with the effect of cross-examination of Dr Ibels in relation to the respondent's symptoms, or cross-examination in relation to the employability of the respondent, or indeed in relation to future treatment 4 UNREPORTED JUDGMENTS The remaining complaint was that the direction in relation to future economic loss was misleading. I do not think that it was. His Honour made clear that the loss to age 65 had been agreed "arithmetically" at $159,236.13. His Honour then dealt with the question of vicissitudes, the competing percentages being 10 and 5 15, and then posed for the jury the question whether the exposure to lead poisoning would prevent the respondent from working until he was 658. As his Honour said "that is a matter which you will decide". As all grounds of appeal fail, the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. Cole JA: The appeal is dismissed with costs. 15 Counsel for the Appellant: D G T Nock SC/A E Glasso Solicitors for the Appellant: Hunt & Hunt Counsel for the Respondent: P Webb QC/I F Butcher 20 Solicitors for the Respondent: McClellands 8. Appeal Book, p281R-W.