New South Wales Court of Appeal CITATION : COLLINS v LEMINGTON COAL MINES LIMITED [1999] NSWCA 293 revised - 26/08/99 FILE NUMBER(S) : CA 49872/98 HEARING DATE(S) : 3 August 1999 JUDGMENT DATE : 3 August 1999 PARTIES : Christopher Edward Collins - C Lemington Coal Mines Limited - O JUDGMENT OF : Sheller JA at 1; Beazley JA at 16; Fitzgerald JA at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 19/92 LOWER COURT JUDICIAL OFFICER : Nader ADCJ COUNSEL : B S Robison/J A Loxton - C J D Hislop SC/N J Polin - O SOLICITORS : Maurice May & Co - C Sparke Helmore - O CATCHWORDS : Remitter to District Court for new trial limited to damages - trial Judge considers issues of liability - no damages awarded - appeal - new trial ordered ACTS CITED : N/A CASES CITED: N/A DECISION : Leave to appeal granted; Appeal allowed; Set aside the judgment and verdict of Acting Judge Nader; Remit the matter to the District Court for a new trial in accordance with order 3 made by this Court on 21 October 1997; Opponent to pay the applicant's costs of the hearing before Acting Judge Nader and of this appeal THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40872/98 DC 19/92 SHELLER JA BEAZLEY JA FITZGERALD JA Tuesday, 3 August 1999 COLLINS v LEMINGTON COAL MINES LIMITED JUDGMENT 1 SHELLER JA: This case has had an unfortunate history. On 9 May 1996, his Honour Judge Gallen found that the plaintiff, Christopher Edward Collins, had established breaches by his employer, the defendant, Lemington Coal Mines Limited, of its duty of care to him and that the plaintiff had, as a result of those breaches of duty, which occurred between February 1984 when the plaintiff began his employment with the defendant and 30 June 1987, caused the plaintiff to suffer injury. 2 Judge Gallen entered a verdict and judgment for the plaintiff in the sum of $37,988. The defendant appealed to this Court. The appeal was limited to the assessment of damages made by Judge Gallen. This Court unanimously allowed the appeal, set aside Judge Gallen's judgment and remitted the matter to the District Court "for new trial limited to damages." 3 Early in his judgment, with which Cole JA and I agreed, Shepherd AJA observed: "At the hearing liability was in question. His Honour resolved this issue against the defendant [the appellant here], no appeal has been brought against that part of his Honour's decision." 4 Later in his judgment Shepherd AJA said: "The law is clear that a plaintiff will be compensated for the actual consequences of an injury including those which may be anticipated as likely to occur or which may possibly occur. But what is to be emphasised is that they must be the consequences of the injury upon which the appellant's cause of action is based. They may not be the consequences of other injuries distinct from that in respect of which the action is brought. Amongst the matters which it is proper to consider, particularly in cases of this kind is the fact that the original injury may make the plaintiff more vulnerable to further injuries of a similar kind. That is a matter which it is appropriate to take into account." 5 Following the remitter the matter came before his Honour Acting Judge Nader on 22 October 1998. His Honour thought, as appears from his reasons for judgment, that the question of liability was open for him to decide because it was open to him to find that: "there was no damage in the relevant sense and therefore that there was no tort of negligence, and that there should be a verdict for the defendant." 6 His Honour then examined the evidence before him and said: "I am unable to find that on the balance of probabilities any significant damage and by significant damage I mean damage that is significant enough to be measured in money terms occurred during the period 1984 to 28 June 1987." 7 His Honour gave a verdict for the defendant. This took no account of Judge Gallen's finding of liability from which there had been no appeal to this Court, and the direction of this Court about the extent of the remitter to the District Court. This misunderstanding unfortunately led to a waste of judicial time in the District Court and in this Court. 8 Mr Hislop QC, submitted that leave should not be granted because on examination of Acting Judge Nader's findings of fact, the amount of damage if correctly assessed on a new trial would be small. However, where this Court has ordered a new trial limited to damages, and that direction has not been complied with and a trial conducted on liability found by the trial Judge on the re-trial against the previously successful plaintiff, it seems to me that this Court has no choice but to grant leave to appeal and uphold the appeal so that a new trial can be conducted in accordance with the Court's direction. 9 An assessment which was founded upon a finding made by the Judge on the new trial, that there was no injury giving rise to the tort, contrary to Judge Gallen's finding on the matter, cannot be permitted to stand. Accordingly, in my opinion, this is a case in which the applicant should be granted leave to appeal and the appeal should be upheld. An order should be made setting aside the judgment and verdict of Acting Judge Nader and the matter remitted to the District Court for a new trial in accordance with order 3 made by this Court on 21 August 1997. 10 This leaves the question of costs. However, before I pass to that, questions were raised from the bar table about the extent to which the new trial should investigate the plaintiff's injury. In this regard, in particular, reference was made to findings made by Judge Gallen about the plaintiff's tinnitus. It seems to me that the Court can and should do no more than refer the parties to the passage from the judgment of Shepherd AJA which I have quoted. There is set out the law that is to be applied when the Judge comes to deal with this matter on the further trial. 11 The applicant applied to have an order made that the opponent pay the applicant's costs on an indemnity basis. It is undoubtedly unfortunate that Acting Judge Nader was permitted by counsel to considering treating the new trial before him as one in which liability remained a live issue. In this regard, one can infer from what Acting Judge Nader said, that argument was put to him that it was open for him to consider the question of liability in the manner that he described. It would seem that counsel that must have put this submission was counsel for the defendant. 12 As I already mentioned, the result of the acceptance of this submission is that the hearing before Acting Judge Nader achieved no purpose at all and was a waste of time as became the appeal to this Court. These are serious matters, and it must be emphasised that counsel owe a duty to the court to advise the court about the true position in respect of a case of this sort, particularly when it is borne in mind that at the hearing of the appeal before this Court, counsel for the defendant, the appellant to this Court previously, made plain that the finding of liability was not challenged. 13 However, having paid careful attention to the submissions made by Mr Hislop, I have come to the conclusion that this is not an appropriate case in which to make an order for indemnity costs. The Judge came to the conclusion that the order of this Court enabled him to re-try in part the question of liability. One suspects that this view may have emanated from the way in which the evidence was led before him from the defendant and by means of the defendant's cross-examination without apparent objection by the plaintiff. It is true that the plaintiff's counsel at the beginning made plain that the new trial was only an assessment of damages. However, the evidence seemed to develop in a rather different direction. Bearing that in mind, and bearing in mind the view that the trial Judge took of the orders of this Court, it seems to me inappropriate that any indemnity order for costs should be made. Accordingly, in my opinion, the following orders should be made: 1. Grant to the applicant leave to appeal from the decision of Acting Judge Nader of 22 October 1998; 2. Appeal allowed; 3. Set aside the judgment and verdict of Acting Judge Nader; 4. Remit the matter to the District Court for a new trial in accordance with order 3 made by this Court on 21 October 1997; 5. The opponent to pay the applicant's costs of the hearing before Acting Judge Nader and of this appeal. 14 The consequence of this costs order is to make order 5, the costs order, made on 29 August 1997, inappropriate in that it will require that the defendant pay the costs of the first trial in any event. Accordingly, order 5 made on 29 August 1997 should be set aside and an order substituted that the costs of the first trial be in the discretion of the Judge hearing the new trial that we now order. 15 The Court orders that order 5 made by this Court on 29 August 1997 be vacated and orders that the costs of the first trial be in the discretion of the Judge hearing the new trial which this Court now orders. 16 BEAZLEY: I agree. 17 FITZGERALD JA: I agree. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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