Precision Plastics Pty Ltd v Demir

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.

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.

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 had 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.

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.

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.

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.

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.

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.

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.

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.

The plaintiff was thirty-three years of age at the time of the accident.

It was conceded that at the time of the accident her earnings, paid to her by the defendant, were $66 per week.

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;

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.

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.

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.

Cockburn C.J. said in Phillips v. South Western Railway Co. [1] :

A verdict having passed for the plaintiff with £7,000 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.

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.

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 [2] . This case was referred to by Lord Esher M.R. in Praed v. Graham [3] . The proposition of Fitzgerald J. referred to by the Master of the Rolls is set out in the judgment of Palles C.B.

1. (1876) 10 Ir. Rep. C.L. (Ex.) 160, at pp. 164, 165. 2. (1889) 24 Q.B.D. 53, at p. 55.

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.

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.

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.

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 them, 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. [4] ; Scott v. Musial [5] ; Coates v. Carter [6] ; and Miller v. Jennings [7] .

1. [1951] A.C. 601, at pp. 613-614. 2. [1959] 2 Q.B. 429, at pp. 437-438. 3. (1951) 82 C.L.R. 537, at pp. 541-543. 4. (1954) 92 C.L.R. 190, at pp. 194-196.

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.

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 [8] ), 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.

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.

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.

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.

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. [9] 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.

I would dismiss this appeal for the reasons stated in the judgment delivered by my brother Gibbs.

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.

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.

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. [9] ).

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.