54 We have proceeded on that basis.
55 The appellant's substantial complaint was that the experts' evidence was not based on their specialised knowledge: Clark v Ryan; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [44] per Gleeson CJ. In our view the appellant has not demonstrated that their evidence went beyond their area of expertise. They sought to reconstruct the circumstances of the accident as they understood it from their interview with Ms Lovett and the experiments they conducted on the replica staircase. They applied their respective areas of expertise to opine as to how, on those assumptions, the respondent might have fallen.
56 There was, in our opinion, no substantial ground for rejecting Mr Meikle's evidence on these matters, and corresponding passages in the evidence of Mr Hosford, whose field of expertise, according to his evidence, was bio-mechanist. The evidence was relevant because it tended to show what could happen if a person descending the stairs took a course which would have been ordinary and unremarkable for Mr Haywood to take - stopping when Ms Lovett spoke to him, turning around and looking, and leaning against the railing. It shows that if he took that course, a fall against the railing set at 870 mm would have been the outcome. The evidence has nothing to say about the probabilities of his departing from that course. The experimental circumstances did not exactly reproduce the circumstances in which Mr Haywood was injured; there were small variations between Mr Haywood's anatomy and the anatomies of the three subjects, the dimensions of the replica were averaged and did not exactly reproduce the stairway; and similarly for the height of the balustrade; the assumption that the respondent had one foot up and one down was not established by evidence.
57 We observe that the appellant's counsel at trial did not ask the trial judge to draw the jury's attention explicitly to any of these matters. Perhaps, indeed probably, they were belaboured in Counsel's address to the jury, a copy of which was not reproduced in the appeal books. In any event, it was for the jury to assess the significance of these variations, but in our judgment they were not so great as to deprive the experiment and experimental observations of utility or to lead to the conclusion that they were not relevant and should not have been admitted. The evidence concerning their construction of a replica of the stairs and their observation of the three subjects walking down them, then falling, was evidence of their observations of an attempted reconstruction of the accident, not opinion evidence. The expertise of Mr Meikle, and indeed of Mr Hosford, was relevant to the weight to be given to that evidence.
58 It was contended, supported by detailed reference to evidence, that the assumptions upon which Mr Meikle's opinion and the corresponding opinion of Mr Hosford were based were not proved by the evidence and accordingly no reasoned conclusion could be deduced from what they said. In our opinion Mr Meikle's evidence showed that he had expertise in structural and applied anatomy which equipped him to express the opinion he did. His opinion was relevant and useful only if the jury found that the facts which the question asked Mr Meikle to assume were correct. In so finding they were entitled and required to make reasonable inferences of fact on the probabilities; and they were entitled to accept the evidence of Ms Lovett at its highest notwithstanding criticisms which had been offered on the credibility of part of it and notwithstanding the suggestion that they had suggested scenarios to Ms Lovett which she adopted.
59 Parts of the facts which the question asked Mr Meikle to assume depended on inference - "that he leant back and that his lower back and/or buttocks came into contact with -- because he leant against it the balustrade rail, that he had his upper body extended over the rail to some extent and that he endeavoured to correct or save himself that in doing so his feet raises as part of the fall." All of that matter could be found by the jury to be correct only by a process of inference; but in our view it is clear, in a system where fact-finding turns on probabilities, that the inference is reasonably available that those things happened.
60 It was a matter of inference that, as the question put to Mr Meikle asked him to assume, when Mr Haywood turned to face Ms Lovett he had one foot up on one foot down, that is, that he did not have both feet on the one step. It was observed that there was no evidence of this fact; it is true that no direct evidence of him actually doing so, but in relation to the event in which he was walking down stairs and his attention was caught by Ms Lovett, the view of the facts is reasonably available that that is probably what happened. In addition, it was the stance adopted by two out of three of the experimental subjects.
61 It is similarly contended, correctly, that there was no evidence of a direct observation that Mr Haywood stood for a second or two, that he leant back or that his lower back or buttocks came into contact with the hand rail; that his upper body extended over the rail and he endeavoured to correct or save himself. These are matters for inference based on consideration of what would probably have happened in the course of events which Ms Lovett described, with the legitimate assistance of considering what could and probably would have happened if that course of events had continued, and also with the considerable assistance of Mr Meikle's observation of what happened in experiments in which subjects acted under observation on the replica.
62 Overall, the evidence shows that the assumptions on which the question was based are consistent with known facts. It was open to the jury to infer that they probably occurred; and reach a conclusion based on that inference if they found it. Obviously the assumed facts are not the only possibilities: Mr Haywood may have departed from the assumed course in some irresponsible way, or he could have taken some other line of action in descending the stairs and responding to Ms Lovett's call. As we have said, these possibilities were before the jury. It was open to the jury to accept or reject them.
63 It is necessary to bear in mind, too, the proposition clearly articulated by Heydon JA (with whom Beazley JA and Davies AJA agreed) in Dixon v Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) [2001] NSWCA 344 (a case involving a claim for damages for allegedly contracting Q fever incurred in the course of employment) that:
"53 In this type of litigation, an essential inquiry is whether, even though the facts assumed may not correspond 'with complete precision' with the facts established, they are 'sufficiently like' the facts established 'to render the opinion of the expert of any value': see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1985) 59 ALJR 844 at 846. The relevance of that inquiry is not diminished by the fact that the common law of expert evidence has now been replaced by Part 3.3 of the Evidence Act 1995 (NSW). In HG v R (1999) 197 CLR 427 at [39] Gleeson CJ assumed that the type of inquiry compelled by the principles stated in the Paric cases remained appropriate, for he required experts to differentiate between the assumed facts and the opinions advanced, and one purpose of that differentiation is to enable the trier of fact to see how far the opinions can stand in the light of the particular facts found."
64 Mr Gormly undertook the latter exercise when he put the opinion question.
65 The trial judge properly directed the jury's attention to these issues in his summing up. They were squarely before it. The conclusion they reached was open to them on an assessment of all the evidence.
66 It was for the jury, reasoning on probabilities, to make a finding whether or not the exact events and conduct which caused the respondent to fall over the balustrade, whatever exactly they were, were a realisation of the danger inherent in the state of the staircase and balustrade: whether the fall was caused by the balustrade's being lower than in the jury's view it reasonably should have been, whether the fall was caused by irregularities in the staircase, or some combination. Precision in finding was not called for and was not possible; what was called for was a finding about whether breach of duty probably caused the fall. There was a fairly narrow range of possible events; that the respondent tripped or stumbled against the balustrade or intentionally leant against it and so precipitated the fall would be a realisation of the risk; that he sat on the balustrade and attempted to slide down it would not be, and although the appellant's counsel did not advocate it, the only other possibility that we can see that is that he deliberately precipitated himself over the railing. The last is a theoretical possibility only, with no support whatever in any of the circumstances. What were the probabilities, and the decision on the probabilities whether the events and conduct which probably happened, and whatever precisely they were, were such that the fall was caused by realisation of the risk, was a matter for the jury to decide; inferences of facts, assessments of probabilities and decision whether on the jury's view of what probably happened there was causation are very much within their province.
67 In our opinion, if attention is confined to decisions which the jury could have founded on the evidence of Ms Lovett, it is plain that they were not faced with pure speculation, and that it was for them to decide on the degree of probability of the causative event being one which fell within or without the facts which the respondent bore the burden of proving.
68 In our view, the material admitted in evidence did not include any purported opinion evidence which was not admissible. Certainly the evidence was contestable; it was earnestly contested, on reasonable grounds, supported by the evidence of another well-qualified expert adverse to it. But nothing occurred which furnishes a basis for deciding that the jury's decision was outside the bounds of conclusions reasonably available to them, or that it was or could have been affected by evidence which should not have been admitted, so as to raise for consideration Pt.51, r.23 and the authorities relating to its application to which we were extensively referred, principally Clark v Ryan and Balenzuela v De Gail.
69 We can see no error capable of attracting appellate review in the trial judge's refusal to exercise his s 135 discretion in favour of the appellant.
Damages
70 Each party prepared schedules of damages which they submitted to the jury for their consideration. Those schedules set out amounts the respective parties suggested (as the trial judge emphasised in his summing up) the jury might consider appropriate in relation to the relevant heads of damages save as to general damages.
71 Mr Watson submits, on an analysis of the most probable range of amounts the jury might have awarded in respect of the nominated heads of damages, that it should be inferred that the range of general damages the jury awarded was $870,919.67 - $1,035,866.67. It submits that that award in particular, as well as the inferred award for loss of earning capacity, superannuation and past and future care exceeded "…what could reasonably be regarded as appropriate in the circumstances of the case": Carson v John Fairfax & Sons Ltd and Slee & Anor [1993] HCA 31; (1993) 178 CLR 44 at 62; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 215.
72 Mr Watson also sought to rely upon the statement in the majority judgment in Carson v John Fairfax & Sons Ltd (at 59) that an appellate court could have regard to awards of personal injuries claims in determining whether a jury award for a head of damages in a defamation case was reasonable to argue that there was "no principle" against the Court of Appeal in this case comparing the inferred award of general damages with the highest award for general damages made in New South Wales in personal injury cases. On this basis he contended that the highest award for general damages in New South Wales was $420,000 in Palmer v Roads & Traffic Authority of New South Wales & Ors [2001] NSWSC 846 at [542].
73 The appellant argued that in the event the Court concluded that the award for general damages was excessive there should be a retrial on damages generally: The Trustees of the Roman Catholic Church v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343.
74 Mr Gormly submits the Court cannot deconstruct the lump sum the jury awarded in the manner for which the appellant contends. He points out that the jury was told to award a global figure which reflected the loss suffered by the respondent in so far as money could do it, and was not directed that the figures in the schedules of damages were maximum figures. It is significant, he contends, that despite the notice of appeal complaining that the damages were manifestly excessive, the appellant had not argued in fact that the global figure the jury awarded was excessive, only that inferred individual components are excessive.
75 Mr Gormly also argued that the Court could not engage in an exercise of comparative assessment of general damages awards in other cases, submitting that such an approach would involve abandoning the principle in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118.
76 When reviewing a jury's assessment of damages the Court "… has no power to review the evidence except for the purpose of determining what view on the evidence or on any particular aspect of it was reasonably open to the jury …[but] must assume that the jury took a view of the evidence most consistent with the size of the verdict which it returns": Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 at 672 or, that the jury has taken the view of the evidence most favourable to the plaintiff: The Trustees of the Roman Catholic Church v Hogan (at [41]) per Mason P (Heydon JA, relevantly, and Hodgson JA agreeing).
77 The Court may only set aside a jury verdict if is manifestly excessive (or inadequate) by reference to the "general standards prevailing in the community": O'Brien v Dunsdon (1965) 39 ALJR 78 (per Barwick CJ, Kitto and Taylor JJ) or is an amount "no reasonable body of men could have awarded": Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 (at 516); Carson v John Fairfax & Sons Ltd (at 61). It will not interfere with an assessment of damages for personal injuries whether made by a judge or a jury simply because it would have awarded a different figure had it tried the case at first instance: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369 per Gibbs J (as his Honour then was). A new trial may only be ordered "if the jury has reached a conclusion which 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 The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 41-42) per Mason CJ, Deane, Toohey and McHugh JJ.