Where a plaintiff's evidence on a material matter (such as intention to continue working) is not inherently incredible and is not challenged in cross-examination, a jury acting reasonably is bound to accept that evidence, and failure to cross-examine on the point will be treated as acceptance for the purpose of assessing whether the jury's verdict was reasonable.
Later decisions that cite Precision Plastics Pty Ltd v Demir
Decisions cited by Precision Plastics Pty Ltd v Demir
PRECISION PLASTICS PTY. LTD. v. DEMIR [1975] HCA 27; (1975) 132 CLR 362
Appeal
High Court of Australia
Barwick C.J.(1), McTiernan(2), Gibbs(3), Stephen(4) and Murphy(5) JJ.
CATCHWORDS
Appeal - Damages - Personal injury - Assessment by jury - Review by appellate court.
HEARING
Sydney, 1975, May 1; August 5. 5:8:1975DECISION
August 5.
2. I am quite unable to accept the propositions which were put to us in this
case that considerable weight should be given to the
decision of the Supreme
Court and that the case was one in which that Court was at liberty to set
aside the award of the jury. That
is the very decision which is under appeal.
Whether the award of damages was so unreasonable as to require its
displacement was and
is a question of law, and it is for this Court to decide
for itself whether or not that decision on a matter of law was correct.
I
cannot think that, conformably to principle, considerable weight can be given
to the decision of a matter of law the subject of
an appeal, except in so far
as it may rest upon an appellant to satisfy the Court that it is wrong. Of
course, where the question
is, as it is here, whether the jury was
unreasonable in making its award, the fact that the Supreme Court thought so,
if that Court
approached the question appropriately, is undoubtedly a
circumstance to be considered. But in this case, in my opinion, the Supreme
Court incorrectly approached the matter it had to decide. The question for
decision was whether the jury, obedient to a summing-up
of which no complaint
is made, had returned a verdict which in the circumstances no reasonable
person could properly return. It is
not whether the members of the Court were
of opinion that, in their view, it was unreasonable: but whether whatever they
themselves
might think, it was a verdict which no reasonable person could
give. There is, in my opinion, a valid and discernible difference
between the
two positions. (at p363)
3. The Supreme Court, as I read the reasons for judgment, first assigned a
sum which that Court thought ought to be allowed for
one integer to be
included in the damages, and by deducting this sum from the amount assumed to
be awarded by the jury for general
damages, arrived at a conclusion that the
verdict was "inadequate to the degree that warrants interference". But, in my
opinion,
this is an unwarranted approach. The proper approach, in my opinion,
is to determine, after examination of the summing-up, what facts
the jury have
found, assuming obedience to the summing-up and taking that view of the
evidence most favourable to the defendant which
was reasonably open to them.
It is, of course, a settled principle that every inference favourable to the
verdict should be made.
Those facts, in this case the facts relating to the
injury, should then be compared with the amount of the verdict. The
unreasonableness
of the award, in the sense I have mentioned, should then be
directly considered by the appellate court. (at p364)
4. Further, the expression "inadequate to the degree that warrants
interference" may or may not indicate that the Court has posed
for itself the
right question. My appreciation of the phrase tends to the conclusion that,
having regard to the context in which
it is used in the reasons for judgment,
it indicates that the stringent requirement of the word "unreasonable" in this
area of discourse
was not fully appreciated. (at p364)
5. In ascertaining what was the view of the facts which the jury were
reasonably entitled to take, having regard to the summing-up,
it cannot
properly, in my opinion, be said that there are any admitted facts or that
there is relevant documentary material which
make it unreasonable for the jury
not to accept all that the plaintiff said in evidence. For instance, I am
unable to accept the
view in this case that the jury were bound to believe
that the plaintiff would work till she was fifty-five years of age as she said
she would. Nor were they bound to believe that, being a migrant, she was
likely to do as some or perhaps the majority of migrant
women do in relation
to employment. The jury were, of course, bound to act reasonably. Evidently
from their verdict they did not
believe the plaintiff as to her working
intentions. I could not accept the proposition that they were unreasonable in
so doing. The
trial judge in his summing-up told the jury:
"You ask yourselves what would have happened if she hadp365)
not been injured. She says she would have worked until she was
at least fifty-five and I think she indicated she wanted to work
until she died. It is a matter for you to use your commonsense
about such a claim as that. On the one hand, as her counsel put
to you, there are many many women in our community who do
go on working for the rest of their lives. On the other hand,
counsel for the defendant put to you that you might think it
more probable this lady, having come here with her husband
and with a young family, naturally would be able to work and
would need to work for some years but as the children grew up
and left school it may be her desire and need to work to earn
money would fall off. It is a matter for you to consider that." (at
6. In my opinion, in obedience to this instruction, the jury could reasonably
have taken the view that had the accident not happened,
the plaintiff would
not have continued in employment for more than a few years, assuming that in
the ordinary course employment remained
available to her - something which
could not be regarded as certain. (at p365)
7. The appellant, in presenting its appeal, is not attempting to assert some
fact about which the respondent did not give evidence:
the fact that the
respondent was not directly cross-examined on her statement of intention
neither means that the appellant admitted
or accepted that evidence nor that
the jury were bound to accept it. (at p365)
8. Undoubtedly the plaintiff suffered a severe incapacitating injury, with
ugly cosmetic consequences. I can readily agree that
the jury's award, though
substantial, was mean and very low. But, none the less, I cannot conclude that
it was one at which in the
circumstances no reasonable person could arrive.
The function of the appellate court is not to reassess verdicts with which
they
do not agree. Its function is to correct error which in this case could
only be made out if the award of damages in relation to the
injury received
and to its consequences was unreasonable in the sense I have indicated. In my
opinion, the Supreme Court was not
justified in setting aside the jury's
award. (at p365)
McTIERNAN J. The plaintiff sued the defendant for damages in respect of
personal injury. At the commencement of the trial the defendant
admitted
liability for the injury. The issue which was contested was the amount of
damages which the defendant was liable to pay
to the plaintiff in respect of
the injury. (at p365)
2. The injury suffered by the plaintiff was the mutilation of her right hand
resulting in the necessity of surgical amputation of
each finger of the hand
and a part of the thumb and grafting operations in which skin from her abdomen
was used. A photograph shows
a total loss of the right hand with an unsightly
result. She wears a prosthesis with difficulty - it is worn only for cosmetic
purposes.
(at p365)
3. The jury awarded the plaintiff $32,000 damages. (at p365)
4. The medical expenses to date of the trial were $1,833, the cost of the
prosthesis $250, the loss of wages to the date of the
trial $5,250. (at p365)
5. Subtracting these figures from $32,000 the balance is $24,667. This is a
global sum, the elements of which are damages for the
loss of the right hand,
pain and suffering endured when it was crushed, subsequent pain incidental to
surgical operations, deprivation
of the use of the right hand throughout the
plaintiff's lifetime, total or substantial loss of earning capacity enjoyed by
the plaintiff
prior to the accident. (at p366)
6. The plaintiff was thirty-three years of age at the time of the accident.
(at p366)
7. It was conceded that at the time of the accident her earnings, paid to her
by the defendant, were $66 per week. (at p366)
8. The learned President of the Court of Appeal said in his written reasons
for judgment:
"It would be an unreasonable assessment of her economic
loss arising from the loss of her right hand to conclude that it
could be reflected on a basis that if she had not been injured, she
would have ceased to exploit her capacity to earn in the not too
distant future.
Counsel for the appellant attacked the residue of the verdict
of $24,917 by arguing that to avoid being unreasonable, the
personal side of the award must take the larger share of that sum,
and, not less than $15,000; and that on this approach the
balance could not be regarded as reasonable provision for the
loss of earning capacity in the future. I agree with this approach
in substance. Standing alone, the non-economic side of the loss
is considerable. Apart from the serious cosmetic consequences
of the injury, the loss of the right hand in a migrant woman of
thirty-three with four children, gravely affecting her in all her
activities in and around the home, personally and as a parent, is
substantial. In addition, there were the original experience, and
the consequent operations, each of which is a matter of some
significance. In my view, it would be unreasonable not to have
allowed some figure in excess of $15,000 in respect of this side of
the award.
It is not necessary to restate the reluctance of an appellate
court to interfere with a jury's verdict or the criteria required to
be present before the court interferes. In my view, it is proper to
interfere with the verdict under appeal on the ground that it is
inadequate to the degree that warrants interference.
I propose, therefore, that the appeal should be allowed with
costs, and that a verdict of $42,000 be substituted;" (at p366)
9. What the Court did was to set aside the verdict of the jury and pursuant
to s. 107 of the Supreme Court Act, 1970 (N.S.W.) assess damages and
substitute a verdict in the sum of $42,000 for the verdict of $32,000
returned. (at p366)
10. In the summing-up the trial judge said:
"It is quite obvious that the loss of a hand to this extent is a
very substantial disability and it is quite obvious it will impede
her and come against her in many many ways every day of her
life. It is obviously a substantial disability. You must of course,
realise, however, that you are compensating a lady for the loss
of a hand and it is not making light of her injury to point this out
but it is proper to point out that the rest of her limbs and her
body are intact. It is important for us to keep our minds upon
what the question is. Here we are dealing with the matter of her
hand. We do adapt to very serious injuries sometimes. It is a
matter to take into account when considering the question of the
extent to which her loss of enjoyment of life has been interfered
with. There is no doubt her injury is a serious one." (at p367)
11. This direction is not explicit: As it stands in the summing-up it could
have been detrimental to the plaintiff. A view capable
of being taken by a
reasonable man, of the consequences of the injury proved by the evidence,
would be that the sequelae of the loss
of the plaintiff's right hand were not
mitigated by the fact that the rest of her limbs and body were "intact".
Whether "we do adapt
to very serious injuries" would, I think have been
understood by the jury to be a warning not to deal with the case on the basis
that the loss of the plaintiff's right hand was not irremediable. (at p367)
12. Cockburn C.J. said in Phillips v. South Western Railway Co. (1879) 4 QBD
406, at pp 407-408 :
"A verdict having passed for the plaintiff with $14,000p367)
damages, an application is made to this Court for a new trial, on
behalf of the plaintiff, on the ground of the insufficiency of the
damages as well as on that of misdirection as having led to an
insufficient assessment of damages; and we are of opinion that
the rule for a new trial must be made absolute; not indeed on the
ground of misdirection, for we are unable to find any
misdirection, the learned judge having in effect left the question of
damages to the jury, with a due caution as to the limit of
compensation, though we think it might have been more explicit as
to the elements of damage.
. . .
But we think that a jury cannot be said to take a reasonable view
of the case unless they consider and take into account all the
heads of damage in respect of which a plaintiff complaining of a
personal injury is entitled to compensation. These are the bodily
injury sustained; the pain undergone; the effect on the health of
the sufferer, according to its degree and its probable duration as
likely to be temporary or permanent; the expenses incidental to
attempts to effect a cure, or to lessen the amount of injury; the
pecuniary loss sustained through inability to attend to a
profession or business as to which, again, the injury may be of a
temporary character, or may be such as to incapacitate the party for
the remainder of his life. If a jury have taken all these elements
of damage into consideration, and have awarded what they
deemed to be fair and reasonable compensation under all the
circumstances of the case, a court ought not, unless under very
exceptional circumstances, to disturb their verdict. But looking
to the figures in the present case, it seems to us that the jury
must have omitted to take into account some of the heads of
damage which were properly involved in the plaintiff's claim." (at
13. Having regard to all the evidence before the jury - no evidence was
called by the defendant - no reasonable proportion existed
between the damages
which I would be inclined to give and the amount awarded by the jury. (at
p368)
14. It would serve no useful purpose if I stated at length the mode in which
the evidence affects my mind on the question of damages.
It is sufficient to
say that I am clearly of opinion that the amount awarded is so inadequate that
it called for the interference
of the Court of Appeal. I have adopted the line
of reasoning of Palles C.B. in McGrath v. Bourne (1876) 10 Ir Rep CL (Ex) 160,
at
pp 164, 165 . This case was referred to by Lord Esher M.R. in Praed v.
Graham (1889) 24 QBD 53, at p 55 . The proposition of Fitzgerald
J. referred
to by the Master of the Rolls is set out in the judgment of Palles C.B. (at
p368)
15. I would uphold the Court's order. (at p368)
GIBBS J. The respondent - the plaintiff in an action in the Supreme Court of
New South Wales - is a woman, Turkish by birth, who
at the date of the trial
(which was held on 22nd October 1973) was thirty-five years old. She migrated
to Australia on 12th April
1970 with her husband and four children who at the
date of the trial were aged seventeen, thirteen, eight and four respectively.
After her arrival in Australia she obtained employment, but had to give it up
for a time to take care of her children; she recommenced
employment and worked
for six months in a handbag factory and then as a process worker in a plastic
factory. She had been engaged
in the latter employment for nine months when,
on 15th December 1971, she sustained an injury in an industrial accident which
it
was conceded was due to the negligence of her employer, the appellant. In
the accident her right hand was crushed and flattened.
All four fingers and
part of her thumb had to be amputated. She has completely lost, and will never
regain, the use of the right
hand. She has been supplied with a prosthesis -
an artificial hand - but that has only cosmetic value; it does not enable her
to
use her hand. She said that she found the prosthesis painful to wear, but
she had only received it a month before the trial and had
had little
opportunity to become accustomed to its use. Without the prosthesis the hand
is most unpleasant in appearance. (at p368)
2. The jury assessed her damages at $32,000. By their award the jury had to
compensate the respondent for medical, hospital and
other expenses expended up
to the date of the trial, which amounted to $1,833, and for her loss of
earnings to that date; as to this
latter item it was agreed that if she had
worked from the date of injury to the date of trial she would have earned
$5,250 in wages
and the learned trial judge told the jury that, as he
understood it, counsel for the appellant did not offer any serious objection
to the inclusion in the verdict of that amount of $5,250. He added that,
having regard to the way in which the case had been conducted,
the jury would
be entitled, without much consideration, to include the figure of $7,083 (the
total of these two amounts) in their
verdict as a starting point. In these
circumstances it would in my opinion have been unreasonable for the jury to
have failed to
include in their award the full amount of $1,833 or to have
discounted the amount of $5,250, at least to any substantial extent.
It must
therefore be taken that the damages assessed in respect of pain and suffering,
loss of amenities, and loss of earning capacity
in so far as it was likely to
result in future economic loss was about $25,000. There also should have been
included in that amount
something to provide for future expenses in renewing
the prosthesis; this however was not a major item - the prosthesis cost $250
and will have to be renewed from time to time. (at p369)
3. The Court of Appeal allowed an appeal from this verdict and substituted a
verdict of $42,000. Before us, the submission advanced
on behalf of the
appellant is that the Court of Appeal was in error in interfering with the
verdict of the jury. (at p369)
4. It is unnecessary to discuss at length the principles that govern an
appellate court in the performance of its task when it is
called upon to
review an assessment of damages for personal injuries. Whether the assessment
was made by a judge or a jury the court
of appeal will not interfere simply
because it would have awarded a different figure had it tried the case at
first instance. Where
the assessment was made by a judge, and it has not been
shown that he acted on any error of principle or misapprehension of the facts,
the appellate court will only intervene if satisfied that the judge has made a
wholly erroneous estimate of the damages suffered.
But where the award was
made by a jury, the test is even more stringent. In such a case (assuming that
there was no misdirection)
the appellate court will only interfere if it
arrives at the conclusion that the damages are so large or so small as to be
unreasonable
- so excessive or so inadequate that no jury could reasonably
have awarded the, or, as is sometimes said, out of all proportion to
the
circumstances of the case. As authority for these propositions it is
sufficient to refer to Nance v. British Columbia Electric
Railway Co. Ltd.
(1951) AC 601, at pp 613-614 ; Scott v. Musial (1959) 2 QB 429, at pp 437-438
; Coates v. Carter
[1951] HCA 30; (1951) 82 CLR
537, at pp 541-543 ; and Miller v. Jennings
[1954] HCA 65; (1954) 92 CLR 190, at pp 194-196 . (at p369)
5. When a case of this kind comes to this Court on appeal from the judgment
of the Court of Appeal of the Supreme Court of New South
Wales, it is our duty
to determine whether the Court of Appeal erred in reaching their decision.
There is nothing to suggest that
they failed to understand or to endeavour to
apply the well-known principles which they were bound to apply. There is no
reason to
doubt that they were satisfied that the verdict was so unreasonably
low as to warrant the intervention of an appellate court. We
must decide
whether they were in error in being so satisfied. In reaching our conclusion
we should, in my opinion, give due weight
to the views of the learned judges
of the Court of Appeal, especially where they have been unanimous - we should
not proceed as though
we were sitting in their places and they had never
spoken. They were called upon to exercise a judgment in its nature
discretionary,
on a matter as to which the opinions of those most qualified to
express them may widely differ, and in forming our judgment, we should
not
entirely disregard the conclusion they have reached. (at p370)
6. The present is not a case in which there is any room for doubt as to the
nature of the injuries suffered by the respondent or
their physical
consequences. The respondent had been a right-handed woman and she has now
suffered a total loss of her right hand.
The loss of a right hand is a grave
disability for anyone, but the loss will be particularly severe for a woman
who uses her hands
to earn her livelihood, especially if she is unskilled and
unable to speak English. The respondent gave her evidence through an
interpreter
and it may be inferred that she was unable to speak English, at
least with any fluency. No direct evidence was given as to her education
or
skills but the fact was that she had been employed only in unskilled work
since arriving in Australia; the appellant, her former
employer, did not
suggest in evidence that she had any special skills. In the circumstances it
would be unreasonable to reach any
conclusion except that her injuries would
virtually incapacitate her for employment; she would certainly be under a
great handicap
in competing for a position as an unskilled worker. It was put
in argument that perhaps she could have obtained other work of a mechanical
kind, for example, operating a machine worked by a footpedal, but the
appellant might have been expected to have some knowledge as
to whether this
was a possibility, and there was no suggestion at the trial that any such work
would be likely to be available. An
important matter for the jury's
consideration was how long she would have been likely to remain in employment
if she had not received
her injuries. The respondent was asked in her
examination-in-chief: "How long did you intend to continue working?" and
replied: "I
like to work very much. Until the age of fifty-five years old. Of
course, until the last day until I died I like to work as far as
work is
concerned." If it had been intended to suggest that she was not speaking the
truth she should have been cross-examined on
this matter so that she might
have had an opportunity of explanation (cf. Browne v. Dunn (1893) 6 R 67, at
pp 76-77 ), but she was
not in fact cross-examined on her answer. The
respondent's evidence that she intended to work until she reached the age of
fifty-five
was not inherently incredible. She had in fact been engaged in
employment for most of the time during which she had been in Australia
before
the accident, and had only given up employment when it was necessary to care
for her child. In these circumstances, in my
opinion, the jury, acting
reasonably, were bound to accept her evidence, uncontradicted and unchallenged
in cross-examination, that
she had the present intention of working until she
reached the age of fifty-five. Of course, the jury were entitled to think that
she might have changed her mind if her circumstances had altered, or that for
one of many reasons she might have been unable to remain
in employment for the
whole of that period. Nevertheless, they would have been unreasonable to have
taken any view other than that
her loss of earning capacity was likely to
cause her substantial economic loss. It was common ground that if she had
remained in
employment her net earnings at the date of the trial would have
been about $66 per week. (at p371)
7. The jury should also have concluded that the respondent had suffered a
devastating loss of amenities. She said in evidence that
she can now do
practically nothing - she cannot prepare meals, or do housework, or cook, or
sew, or work in the garden, or even go
shopping. It was suggested that the
jury were entitled to form the opinion that she was exaggerating the gravity
of her situation,
but even if they were entitled to think that there was some
element of exaggeration in what she said, the fact remains that the loss
of a
right hand presents a serious and in some respects total impediment to the
performance by a woman of her ordinary household
duties. The probability was
that she was doomed to what, in her situation, was a useless life, and the
jury could not reasonably
suppose that there were open to her the intellectual
or cultural consolations that might have been available to a woman with a
different
educational background. Further, if her husband were to die, or if
her marriage ended for other reasons, her prospects of re-marriage
would be
grievously impaired. (at p371)
8. As a result of the injury she underwent a number of operations. Skin was
grafted from her abdomen, which as a result is extensively
and conspicuously
scarred. She said that her hand still causes her pain, particularly to the
touch or when it is cold; this evidence
was uncontradicted. (at p371)
9. Having regard to all the above circumstances, I can see no reason to
disturb the conclusion of the Court of Appeal that the award
of damages made
by the jury was unreasonably low. (at p371)
10. The question whether the Court of Appeal had power to assess damages
itself rather than order a new trial was not raised either
before that Court
or in the notice of appeal and the parties ought not in my opinion be allowed
to canvass it now. However, once
it is concluded that the present was a proper
case for interference by the Court of Appeal with the verdict of the jury
there appears
no reason to doubt that it had power to assess the damages
rather than order a new trial. Section 107 of the Supreme Court Act, 1970
(N.S.W.) gives the Court of Appeal power to assess the amount of damages if
certain conditions have been satisfied. Assuming that
the Court of Appeal
would, but for s. 107, have set aside the verdict and ordered a new trial, the
only arguable question that could arise under s. 107 would be whether the
present case was one in which it appeared to the Court of Appeal to be
desirable to exercise the power of assessment
"for the purpose of avoiding a
multiplicity of trials" (s. 107 (c) (ii)). It was decided in Murray v.
Australian Iron & Steel Pty. Ltd. (1971) 45 ALJR 279 that the purpose of
avoiding a second
trial was the purpose of avoiding "a multiplicity of trials"
within the meaning of this provision. In the light of that decision
the Court
of Appeal had power to reassess. (at p372)
11. I would dismiss the appeal. (at p372)
STEPHEN J. I would dismiss this appeal for the reasons stated in the
judgment delivered by my brother Gibbs. (at p372)
MURPHY J. Except where there is judicial error, the verdict of a jury in
damages should not be interfered with unless the case for
doing so is very
strong. This is such a case. (at p372)
2. There is no need to repeat the facts and history which are set out in
other judgments. In whatever way I approach the verdict,
taking into account
the relevant heads of damage, I come to the conclusion that the amount was not
only low but so low that it was
unreasonable. I agree generally with the
observations on the verdict made by McTiernan and Gibbs JJ. in their
judgments. (at p372)
3. The Court of Appeal was amply justified in interfering on the ground of
inadequacy. It then had power to assess the damages for
itself without
remitting the issue for trial by another jury (Murray v. Australian Iron &
Steel Pty. Ltd. (1971) 45 ALJR 279
). (at
p372)
4. The respondent plaintiff was entitled at the least to the very modest
amount decided on by the Court of Appeal. The question
of insufficiency of
that amount was not raised. (at p372)
5. The appeal should be dismissed. (at p372)
ORDER
Appeal dismissed with costs.