New South Wales Court of Appeal CITATION : Blum v Weiers & Anor [2001] NSWCA 383 FILE NUMBER(S) : CA 41014/99 HEARING DATE(S) : 11 October 2001 JUDGMENT DATE : 1 November 2001 Peter Blum - Appellant PARTIES : Thomas John Weiers - First Respondent Gunnedah Coal Company Ltd - Second Respondent JUDGMENT OF : Giles JA at 1; Ipp AJA at 41; Rolfe AJA at 42 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 18568/93 FILE NUMBER(S) : LOWER COURT McInerney J JUDICIAL OFFICER : P LeG Brereton SC - Appellant COUNSEL : B G McManamey - First Respondent J N Gleeson SC & N E Chen - Second Respondent Blake Dawson Waldron - Appellant SOLICITORS : Stacks - The Law Firn, Newcastle - First Respondent Sparke Helmore - Second Respondent CATCHWORDS : DAMAGES - work injury - then medical negligence in its treatment - claim for successive wrongs - jury found substantial general damages and economic loss against doctor - whether any significant increased effect of medical negligence - whether earning capacity effectively destroyed by work injury - whether jury's verdict unreasonable - held unreasonable - new trial as to damages. ND CASES CITED: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. DECISION : (1) Verdict and judgment for the first respondent against the appellant set aside; (2) Order that there be a new trial as to damages between the first respondent and the appellant; (3) First respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors Fund Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41014/99 SC 19568/93 GILES JA IPP AJA ROLFE AJA Thursday, 1 November 2001 BLUM v WEIERS & ANOR Judgment 1 GILES JA: The first respondent, Mr Tom Weiers, was employed by the second respondent, Gunnedah Coal Company Ltd ("Gunnedah"), as a miner in its coal mine. On 14 December 1990 he injured his neck when lifting and carrying a length of timber to be used to support the roof of the mine. He returned to work on the next working day, but ceased work on that day because of continuing pain and did not work thereafter. 2 Mr Weiers saw a number of doctors and physiotherapists, and in September 1991 saw the appellant, Dr Peter Blum, a consultant neurosurgeon. Dr Blum diagnosed a disc lesion, which he said could well have occurred after the injury in December 1990. He ultimately recommended a cervical decompression and fusion at the C5-6 level. The procedure was carried out on 27 April 1992. In error, the procedure was carried out at the C6-7 level. 3 Mr Weiers sued Gunnedah and Dr Blum. In his statement of claim in its final form he alleged that his injury on 14 December 1990 was due to negligence on the part of Gunnedah and that Dr Blum was negligent in treating him, and that "[b]y reason of the negligence of the Defendants the Plaintiff has suffered disabilities and losses". The particulars of disabilities enumerated a number of disabilities apparently intended to be attributed to the negligence of both Gunnedah and Dr Blum and further disabilities attributed solely to the negligence of Dr Blum. The particulars of loss of earning capacity asserted that "[b]y reason of the negligence of the Defendants the Plaintiff's earning capacity has been effectively destroyed". As to loss of earning capacity, therefore, the case as pleaded took Mr Weiers' position as a result of both the negligence of Gunnedah and the negligence of Dr Blum, and globally claimed damages. It did not seek to attribute some loss of earning capacity to the injury on 14 December 1990 and further or other impact on earning capacity to the procedure on 27 April 1992. 4 The proceedings were heard before McInerney AJ and a jury. The verdict was returned on 7 July 1999. 5 In the claim against Gunnedah, the jury found that Gunnedah was negligent and Mr Weiers was 10 per cent contributorily negligent, and that Mr Weiers' damages were $472,153. The constituents of the damages were separately found as general damages of $99,637 (being 50 per cent of a most extreme case); past economic loss of $237,520; future economic loss of $150,139; out-of-pocket expenses of $18,759; and a Fox v Wood component of $18,559. The total of $524,614 was then reduced by 10 per cent. 6 In the claim against Dr Blum negligence had been admitted, and the jury found that Mr Weiers' damages were $298,642. The constituents of the damages were not separately found. The parties agreed that interest on general damages and past economic loss should be added to the damages, and that for the purposes of their calculation but only for those purposes the general damages should be taken to have been $100,000 and the past economic loss should be taken to have been $18,480. With the interest then calculated, the damages became $326,947. 7 By agreement there was left for decision by McInerney AJ whether an amount representing Mr Weiers' workers' compensation entitlements for a lower back condition, the amount being agreed at $82,887, should be deducted from his damages. Dr Blum submitted that it should, but Gunnedah did not join in the submission. In reasons delivered on 14 December 1999 his Honour held that it should not. Perhaps this was just as well. On Dr Blum's argument, the rationale for the deduction required that it be deducted from the damages for future economic loss, not from the damages as a whole. When the jury had not separately found the damages for future economic loss, how could the deduction have been made? 8 Dr Blum appealed, in the end on two grounds. The grounds were, in short, that the damages as found by the jury were appealably excessive and that the amount representing the workers' compensation entitlements should have been deducted. If the jury's assessment of damages remained, Dr Blum asked that the deduction be made: this would have encountered the difficulty last mentioned. If the jury's assessment of damages was overturned, Dr Blum invited this Court to reassess the damages and, if damages for future economic loss were awarded, to make the deduction. 9 Gunnedah was made a respondent to the appeal, but did not itself appeal. It sought the benefit of the second ground if it found favour. The approach to the jury's assessment of damages 10 A stringent test must be satisfied before a jury's assessment of damages is overturned on appeal. The appellate court must conclude that the damages are so large or so small as to be unreasonable, meaning "so excessive or so inadequate that no jury could reasonably have awarded them or, as is sometimes said, out of all proportion to the circumstances of the case" (Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369 per Gibbs J). The test reflects the wider principle that an appellate court may order a new trial if the jury's conclusion "is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach" (Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41 per Mason CJ and Deane, Toohey and McHugh JJ). 11 These principles were not in dispute in the appeal. Nor was it in dispute that every inference favourable to the jury's verdict should be made and that, subject to the need to consider the evidence in its totality, the view of the evidence most favourable to Mr Weiers which was reasonably open to the jury should be taken (Precision Plastics Pty Ltd v Demir at 364 per Barwick CJ). Analysis of the jury's verdict 12 It is first desirable, if not necessary, to seek to determine how the jury could have arrived at the damages of $298,642. This was on occasions referred to at the hearing of the appeal as reverse engineering. It is a far less scientific procedure than that conveys. Deciding whether the damages as found by the jury were appealably excessive will be assisted, however, by regard to the damages found in the claim against Gunnedah and an appreciation of the amounts the jury could have found in the claims against Dr Blum for the various constituents of the damages. 13 It was not suggested that there was any error in the jury's assessment of damages as against Gunnedah. Obedience to the summing-up should be assumed and, although the jury was not asked in the claim against Dr Blum to find separately the constituents of the damages as it was asked in the claim against Gunnedah, the directions called for regard to be had to the same constituents of general damages, past economic loss, future economic loss and out-of pocket expenses. 14 The claims against Gunnedah and Dr Blum were claims for sequential wrongs. They were not joint tortfeasors, whose wrongs together contributed to the one injury suffered by Mr Weiers: on Mr Weiers' case, Gunnedah's wrong injured him, then Dr Blum's wrong further injured him. The damages as found did not overlap but were cumulative. Mr Weiers is entitled to recover $472,153 from Gunnedah, and subject to the outcome of the appeal is entitled to recover a further $326,947 from Dr Blum. 15 Thus McInerney AJ directed the jury that there were two cases, one against Gunnedah and the other against Dr Blum, and that care must be taken not to overcompensate Mr Weiers by giving him double damages. His Honour went on - "The plaintiff has suffered more than one injury and it will be necessary for you to sort out from the evidence what damages flow from each respective injury but once again making sure there was no doubling-up of the damages. For example, you will be asked to assess what is called the non-economic loss flowing from the injury, if you find it by the first defendant and by the second defendant. You have to be very careful in those circumstances to ensure that the plaintiff does not get double damages, so to speak." 16 In the claim against Dr Blum out-of-pocket expenses were agreed at $4,250, and the jury was directed accordingly. Thus of the damages of $298,642 an amount of $294,392 could represent the other constituents of the damages. 17 To the extent that the damages found in the claim against Dr Blum included economic loss, the economic loss had to be economic loss additional to that found in the claim against Gunnedah. As I have said, Mr Weiers case as pleaded did not seek to attribute some loss of earning capacity to the injury on 14 December 1990 and further or other impact on earning capacity to the procedure on 27 April 1992. It is apparent from a reading of the evidence and from the summing-up that the same course was taken in the presentation of the case. Mr Weiers simply said that he could now no longer work at all. 18 According to the summing-up, Mr Weiers claimed past economic loss of $296,901 before any allowance for vicissitudes. We were not taken to any materials showing how that sum was calculated. The jury found past economic loss against Gunnedah of $237,520. Thus the jury could not have found past economic loss against Dr Blum in an amount greater than $59,381. But Dr Blum could not be liable for past economic loss for the whole of this amount. It is the mathematical residue for the period from 14 December 1990 to the date of trial, but Dr Blum's negligence could have impacted on Mr Weiers only on and from 27 April 1992. A reasonable approximation of the past economic loss which could have been found against Dr Blum is $50,000. 19 Again according to the summing-up, Mr Weiers claimed future economic loss at $683.45 per week, it seems until age 60 although that is not entirely clear. He was almost 46 at the time of the trial. The jury was instructed to use the 5 per cent tables in the claim against Gunnedah and the 3 per cent tables in the claim against Dr Blum. The claim for future economic loss was $361,750 on the 5 per cent tables or $408,908 on the 3 per cent tables, before any allowance for vicissitudes; if the claim was until age 65 the corresponding figures are $441,645 and $499,218. From the summing-up, Mr Weiers accepted that a 15 per cent allowance for vicissitudes should be made, although Gunnedah and Dr Blum contended for a greater allowance. After a 15 per cent deduction, the figures to which I have referred become $307,488 and $347,572 or $375,398 and $424,335. The jury found future economic loss against Gunnedah of $150,139. Taking the approach most favourable to Mr Weiers, the jury could not have found future economic loss as against Dr Blum in an amount greater than $274,196. 20 However, the jury could not have found future economic loss as against Dr Blum in an amount anywhere near $274,196. From the damages award for past economic loss, the jury must have considered that the major impact on Mr Weiers' earning capacity came from the injury of 14 December 1990. For the period from 27 April 1992 to the date of trial they could not have attributed more than approximately 20 per cent of his diminution in earning capacity to Dr Blum's negligence: the percentage is the relationship between the $50,000 and the part of the claimed $296,901 referable to that period, approximately $256,901. Mr Weiers' earning capacity must have been largely destroyed prior to the procedure on 27 April 1992, leaving a small impact only from Dr Blum's negligence, and there was no reason in the evidence for Dr Blum's negligence to have had a proportionally greater impact on his earning capacity for the period after the trial than for the period before the trial. (In saying this I do not overlook Mr Weiers' submission that reference to possible increased arthritic degeneration of his neck at the levels above C6-7 because of the fusion at that level entitled the jury to find an increasing interference with earning capacity as time went on. On the totality of the evidence, I do not think this was reasonably open.) A reasonable approximation of the future economic loss which could have been found against Dr Blum is therefore $55,000. 21 If economic loss accounts for approximately $105,000 out of the $294,392, that leaves approximately $189,382 for general damages. If the damages for economic loss found as against Dr Blum were less than the possible amounts earlier mentioned, the general damages found would be correspondingly increased. 22 It should be emphasised that this is not a determination of what the jury probably found for the constituents of the damages. It attempts no more than to identify by regard to the damages claimed and the damages found as against Gunnedah some parameters within which, if acting reasonably, the jury should have assessed the damages as against Dr Blum. Were the damages appealably excessive? 23 Dr Blum submitted that Mr Weiers had wholly lost his earning capacity before the procedure of 27 April 1992, and that that procedure had no effect on it; so the jury could not reasonably have found as against him any damages for past or future economic loss. If any such damages could have been found, he said, they were minimal, and on an analysis such as that earlier made certainly could not have exceeded a total amount of the order of $100,000, so that the general damages had to be excessive. As to general damages, Dr Blum acknowledged that a small award would have been open to the jury based on undergoing two procedures rather than one (at a later date Mr Weiers had a procedure at the correct C5-6 level), minor increased restriction in neck movement, a small increased susceptibility to further neck problems, and a small contribution to existing psychological problems. But, he said, general damages of the amount of the damages found, or even of the damages found less an amount as high as $100,000, were excessive within the principles earlier stated. 24 We were taken in detail to the evidence. In my opinion Dr Blum's submissions should be accepted. 25 Mr Weiers had been schooled to about third year, but did not obtain the then School Certificate. He worked as a storeman, then for many years a miner with a brief period as a partner in the business of Tamworth Auto Glass. The evidence gave no information about this business, and Mr Weiers himself said that his modest education meant that he "could not hold down a job in an office doing anything useful" and that after he left the mining industry "no-one could come up with anything basically with what [sic] I could do". 26 Over his years in the mining industry Mr Weiers suffered a number of injuries. He returned to work on each occasion, but he could not and did not return to work after the injury of 14 December 1990. The medical evidence from Dr Kleinman and Dr Hopcroft in his own case was that, given the pre-existing condition of his neck and lower back from his work injuries and degenerative change including developmental spondylolisthesis, even apart from that injury he could not work as an underground miner or in any capacity involving work of a heavy or strenuous nature. 27 Thus at the time of the injury of 14 December 1990 Mr Weiers had a severely compromised earning capacity, and in the words of Dr Hopcroft would inevitably have had to leave the mining industry. With the injury of 14 December 1990, he could not work as a miner. On his own evidence, he could not even do household chores. Without getting to Dr Blum's negligence, what was there left to him? His own case did not include employment or remunerative work in other occupations, and most other work was positively excluded by his lack of education. There was reference in the evidence to driving a dump truck, but in my opinion the only reasonable reading of the evidence is that Mr Weiers did not think that, after the injury of 14 December 1990, he could do so; that would seem to exclude driving work in general. When he could not even do household chores, there was really nothing left to him. 28 It should be repeated that Mr Weiers had two cases, one against Gunnedah and one against Dr Blum. For the case against Dr Blum he had to show that he had an earning capacity which Dr Blum's negligence impaired. That was really not the way the case was presented. More than that, it appears from the summing-up that his case alleged complete destruction of his earning capacity by the injury of 14 December 1990: thus McInerney AJ said that his counsel "put to you that this injury cused him to have a prolapsed disc … which has resulted in him suffering permanent injury and being permanently incapacitated from work". 29 Mr Weiers submitted that the evidence nonetheless entitled the jury to conclude that he had a residual earning capacity prior to the procedure of 27 April 1992, even if he was no longer fit to work as a miner. He relied on the evidence about driving a dump truck, and said that Dr Kleinman spoke of inability to undertake work of a heavy or strenuous nature after the injury of 14 December 1990, but of inability to work in any occupation involving lifting, standing for long periods or even sitting for a prolonged period after the procedure of 27 April 1992. Further, he said, the award against Gunnedah for future economic loss suggested that the jury considered that he had a significant residual earning capacity, because those damages against Gunnedah would otherwise have been much greater. 30 These matters must be considered together with the evidence of the effect of the procedure of 27 April 1992. There was medical evidence that the fusion at level C6-7 would place more stress upon the higher levels upon flexion, and that this could bring arthritis at the damaged level C5-6 and increased pain. The neck was marginally stiffer than before. There was evidence from Mr Weiers of icy chills in the spine and lower back pains after the procedure of 27 April 1992 which had not been there before, and that his symptoms gradually got worse, although at other times his evidence was not consistent with this. The icy chills could not be explained anatomically by the doctors, nor was there any evidence to link lower back pain with the procedure: indeed, Mr Weiers comprehensively acknowledged lower back pain before the procedure, but said that it seemed to be in different places and travelling around his body. 31 I do not think it necessary to recount more fully the evidence to which we were taken, or to decide whether the jury could not reasonably have concluded that Mr Weiers had an earning capacity at all prior to the procedure of 27 April 1992. I have considerable difficulty in seeing how the jury could have so concluded, but I do not think it was open to a reasonable jury to conclude that more than a minimal earning capacity was then enjoyed, because Mr Weiers' degenerative conditions, his earlier injuries, and then the injury of 14 December 1990 meant that he was all but unemployable and unable to earn remuneration in any occupation within his capabilities. That, it seems to me, is reflected in the jury's assessment of past economic loss as against Gunnedah, which given the evidence of the lower back problems and other evidence to which it is not necessary to refer should have had a significant allowance for vicissitudes whereby the $237,520 represented an almost entire, if not entire, loss of earning capacity. I do not think there is weight in Mr Weiers' reliance on the award against Gunnedah for future economic loss, since that should have had a very significant allowance for vicissitudes which would explain its amount. Even on the most favourable view of the evidence reasonably open to the jury, and bearing in mind that inferences favourable to the jury's verdict should be made, I am unable to see that anything more than a small amount for economic loss could have been found as against Dr Blum, well short of the possible $100,000 earlier mentioned. 32 Mr Weiers submitted that a significant award for economic loss could have been found on the following reasoning. There was evidence that the procedure of 27 April 1992 had a 90 per cent success rate, success meaning not restoration of the integrity of the neck but relief from the pain produced by the injury to the neck. Even if the injury of 14 December 1990 meant that Mr Weiers' earning capacity was reduced to a very low level, had the procedure been carried out at the correct level he would have had a 90 per cent chance of being freed from his pain, whereby he would have been able to return to work. Dr Blum's negligence caused him to lose the chance of a restored earning capacity, for which he should be compensated in damages. 33 There is no hint in the summing-up that a case of this nature was left to the jury. There was reference to the evidence of a 90 per cent success rate (although it was accompanied by reference to evidence that for a person with Mr Weiers' other problems the success rate would be less, about 50 per cent), but in connection with aggravation of Mr Weiers' psychological condition through disappointed expectation. Loss of the chance of a restored earning capacity was not mentioned. There was, in my view, good reason for that. The particulars of disabilities attributed solely to the negligence of Dr Blum included "Loss of any prospect of recovery", but the particulars of loss of earning capacity were of destruction of earning capacity. The case as pleaded, and so far as appears as presented, was not that Dr Blum negligently failed to provide what he promised to provide, relief from pain and thus restoration of earning capacity, but of negligent conduct whereby he (further) diminished earning capacity. I do not think the jury can have reasoned in the manner suggested; if the jury did so reason, it should not have. 34 General damages can be considered more briefly, because on no view could the jury reasonably have come to general damages of the order of $190,000 or more. At highest, Mr Weiers could say that the procedure of 27 April 1992 brought some increased stiffness or minor restriction of movement in his neck, the possibility of arthritis and some increased pain, and the icy chills and some lower back pain. These matters impacted on a man already severely physically challenged. At highest, again, Mr Weiers could say that his frustration, anger and depression were added to by Dr Blum's procedure, although his treating psychologist, Mr Peter Briggs, said that the addition was not major. These matters impacted on a man already severely psychologically challenged, over a long period from earlier times culminating in an attempt at suicide and running to inability to cope and psychological treatment following the injury of 14 December 1990. A jury acting reasonably could on the totality of the evidence have arrived at general damages only of a very much smaller amount. 35 It is necessary to view the damages of $298,642 ($294,392 apart from the out-of-pocket expenses) as a whole, in the light of the evidence as a whole. In my opinion, within the stringent test which must be satisfied the jury's assessment of damages was so excessive that it can not stand. Reassessment of damages? 36 Although Dr Blum invited this Court to reassess damages, he properly acknowledged the difficulties in it doing so. Mr Weiers' position was that the Court could not properly do so. A new trial in a matter such as this should be avoided if at all possible, but I do not think it can be avoided. 37 There were internal conflicts in Mr Weiers' evidence of the impact on him of the injury of 14 December 1990 and the procedure of 27 April 1992, and in order to assess damages it would be necessary to resolve those conflicts and otherwise to have the benefit of seeing and hearing Mr Weiers give his evidence: apart from anything else, this makes a new trial the only proper course. The concession offered by Dr Blum, that in respect of general damages the Court should be at liberty to choose between competing inferences by making the inference most favourable to Mr Weiers, does not overcome the difficulty. The workers' compensation entitlements 38 The Court deferred argument on this ground. There must be a new trial, and I do not think the Court should embark on a question which has no present significance in the proceedings and, depending on future events, may not arise. Costs 39 Dr Blum must have his costs of the appeal, but since he properly acknowledged that the jury could have awarded lesser damages the order for the costs of the trial should not be disturbed. Gunnedah filed a written submission in which it said that its only interest was in the question of workers' compensation entitlements and asked for the benefit of a deduction if Dr Blum succeeded on that ground. It appeared at the hearing of the appeal, but made no submissions. I do not think the other parties should underwrite Gunnedah's opportunism, and there should be no order for costs as between Gunnedah and the other parties. Orders 40 I propose the following orders - 1. Verdict and judgment for the first respondent against the appellant set aside. 2. Order that there be a new trial as to damages between the first respondent and the appellant. 3. First respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors Fund Act if qualified. 41 IPP AJA: I agree with Giles JA. 42 ROLFE AJA: I agree with Giles JA. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.