Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 (23 February 2007)

Last Updated: 26 February 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21


FILE NUMBER(S):
40430 of 2006

HEARING DATE(S): 7 November 2006

JUDGMENT DATE: 23 February 2007

PARTIES:
Collaroy Services Beach Club Ltd - Appellant
Anthony Neville Haywood - Respondent

JUDGMENT OF: Ipp JA McColl JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20252 of 2001

LOWER COURT JUDICIAL OFFICER: Hidden J

LOWER COURT DATE OF DECISION: 16 June 2006


COUNSEL:
G M Watson SC and J C Sheller - Appellant
J P Gormly SC and J Mrsic - Respondent

SOLICITORS:
Hunt & Hunt Lawyers - Appellant
T D Kelly & Co - Respondent

CATCHWORDS:
Expert Evidence – Admissibility – Whether evidence given by experts was related to their specialised knowledge or merely a means of telling the jury how the accident happened
Damages – jury verdict – whether award was manifestly excessive – whether Court reviewing jury award may have regard to awards in other personal injury cases
(ND)

LEGISLATION CITED:
Civil Liability Act 2002
Evidence Act 1995
Supreme Court Rules 1970

CASES CITED:
Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226
Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Carson v John Fairfax & Sons Ltd and Slee & Anor [1993] HCA 31; (1993) 178 CLR 44
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Dixon v Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) [2001] NSWCA 344
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
House v R [1936] HCA 40; (1936) 55 CLR 499
Moran v McMahon (1985) 3 NSWLR 700
O'Brien v Dunsdon (1965) 39 ALJR 78
Palmer v Roads and Traffic Authority [2001] NSWSC 846
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651
Richard Martin Tory v Michael Megna [2007] NSWCA 13
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Trustees of the Roman Catholic Church v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

DECISION:
Appeal dismissed with costs


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40430/06

SC 20252/01

IPP JA

McCOLL JA

BRYSON JA

Friday 23 February 2007

COLLAROY SERVICES BEACH CLUB LTD v HAYWOOD

Judgment

1 IPP JA: I have read the draft reasons of McColl JA and Bryson JA.

2 The appellant was injured when he fell over a railing on a staircase. He fell several metres. It is difficult to conceive of a clearer case of negligence. The staircase was irregular and uneven in several material respects, the construction breached numerous provisions of the building code and was badly designed. The staircase undoubtedly was dangerous to any person walking up or down it.

3 The important question before the jury was whether the respondent’s fall was caused by the dangerous condition of the staircase. The jury found that it was. On the evidence, this decision was not only eminently reasonable but, on a commonsense basis, inevitable.

4 The appellant complained about expert evidence that had been led over its objection. In my view there is some merit in the appellant’s argument, insofar as the expert evidence was directed at matters of ordinary human behaviour and well within the knowledge of the jury.

5 The appellant’s main complaint about this expert evidence, however, was that the experts “told the jury how the accident happened, whereas this was a question for the jury to determine” (McColl JA and Bryson JJ at [38]). That is not my reading of their testimony. In any event, as the respondent’s claim was so strong (even without expert evidence which added little if anything material to the issues), any error that possibly could have been committed by allowing that evidence could not have resulted in a miscarriage of justice.

6 I would dismiss the appeal in respect of liability.

7 In my opinion the jury’s award was grossly excessive. It is not difficult to assess, from the jury’s award, the approximate amount they assessed in respect of general damages. I see no reason why an analytical exercise should not be carried out to determine the approximate amount awarded under this head. I agree with the submission of Mr Watson SC, senior counsel for the appellant, that the general damages the jury awarded must have been between $800,000.00 and $1 million.

8 I accept that Planet Fisheries Pty. Ltd. v. La Rosa (1968) HCA 62; (1968) 119 CLR 118 governs this issue (the Civil Liability Act 2002 not being applicable as proceedings were commenced in 2001). Even on that basis, the amount of general damages that I infer was awarded was far beyond the discretion available to a reasonable jury. General damages in such an amount represents substantially more than 200% of the highest general damages award for catastrophic injuries known to me. Senior counsel for the respondent accepted that general damages of this order was, to the extent I have indicated, beyond anything previously awarded.

9 The general damages so assessed grossly exceed the limit laid down by the legislature under the Civil Liability Act. In my view, that is a relevant factor (even though the Act is not applicable). Over the years, many have drawn attention to the difficulties courts have in determining the values and attitudes of the general community. Many have asserted that the calling in aid by judges of their views of what the community thinks and believes is an unreliable, subjective, means of decision-making. It is difficult, however, to imagine a better way of determining community values and attitudes than by having regard to legislation passed by the Parliament, particularly recent legislation and particularly legislation duplicated in some form or another (to a greater or lesser extent) in every State and Territory throughout the country.

10 There is nothing in the particular circumstances of the case that justifies such an outlandish award for general damages that the jury, in my view, have made in this case.

11 Accordingly, the global award for damages should not stand. I would uphold the appeal in respect of quantum and order a new trial in respect thereof.

12 As I am in dissent in this matter and as this is an expedited hearing and it is important that judgment be delivered as soon as possible, I do not propose to say anything further about this issue.

13 McCOLL JA and BRYSON JA: Anthony Neville Haywood, the respondent, was injured at about 10:30 p.m. on 9 February 2001 when he fell over a railing on a spiral, or helical, staircase to the floor of a passage which ran alongside the staircase several metres below at Collaroy Services Beach Club, premises which were occupied by the appellant. He suffered injuries, principally a severe brain injury which left him with poor short-term memory, poor concentration, mood and judgment; and related disabilities.

14 He brought proceedings to recover damages against the appellant asserting, relevantly, that his injuries had been caused by its negligence and breach of statutory duties. His claim in the Common Law Division was heard before Justice Hidden and a jury, on 20 hearing days between 30 January 2006 and 24 February 2006. The jury's verdict, delivered on 24 February, took the form of answers to six questions. The effect of the answers was that the jury found for the respondent on the negligence count, found that there was no contributory negligence and found for the respondent on seven statutory counts. The jury assessed damages at $2,500,000, an amount which was increased by the trial judge by $636,000 for funds management and $1,463 in respect of costs incurred in the appointment of the Protective Commissioner to manage the respondent’s affairs, leading to a total award of $3,137,463.

15 The main complaints in negligence and on the statutory counts related to the height of the railing on top of the balustrade of the staircase. The respondent contended that it was not of adequate height. Of the seven alleged breaches of statutory duty which went to the jury (and related to the Building Code of Australia) the one we regard as the most significant related to failure to ensure that the balustrade height was a suitable height not less than 1000 mm; plainly this requirement was not met. The jury also found that there had been breaches of other requirements of the Building Code of Australia, some more particular in their requirements - having a helical staircase which was not of constant radius, having a tread (or going) which was too narrow, and having a balustrade that was not consistent in height; and others in more general terms relating to installing and maintaining a stairway that did not provide safe passage, installing and maintaining a stairway that did not have a balustrade to protect users from the risk of falling, and having a balustrade which did not restrict persons accidentally falling. Judgment was given for the respondent on these findings.

16 The appellant seeks a new trial essentially on two bases: that the trial judge erred in permitting the respondent to lead expert evidence which purported to reconstruct the circumstances in which the accident might have happened, and that the damages were excessive.

Statement of the Case

17 The respondent was aged 20 when the accident occurred. He had spent several hours in the upper storey of the appellant’s premises, known as the Horizon Bar, in the company of several young friends; he and they were present as temporary members. The event was an informal Friday night social occasion among young friends; the party had something to eat, and drank liquor; there was music and dancing. At about 10:30 p.m. it was time to go home and the respondent and his friend, Ms Lovett left the Horizon Bar and proceeded to the stairs, to descend to the foyer and the main entrance. The respondent went first. Ms Lovett was close behind. When they had started to walk down the stairs Ms Lovett, as her evidence shows, stopped, asked the respondent to wait and turned around to see where the others in the group were. He turned around, as she says, "to see why I had asked him to wait" and he turned to look up towards her over his left shoulder. Ms Lovett stepped up some distance so that she could see the entrance area and see where the other group was, she made contact with one of them and then turned around to go down the stairs. When she turned back she saw that the respondent was falling over the rail, going over backwards, his feet off the ground, his head beyond the rail, curved as though he was trying to get back. He was still on about the same step as he had been when she last saw him. His fall continued and he suffered the injury.

18 There were no eyewitnesses as to precisely how the respondent came to fall. His memory was affected by his injury. He had no recollection of the event, and was unable to give, and did not give, any evidence which could show in detail how it came about that he fell over the railing, or the part if any which the state of the stairs and the height of the railing had in the event. His case was, however, that he had turned and lost his balance because of the badly built staircase, thus falling backwards over the non-complying railing.

19 The evidence disclosed that the staircase from which the respondent fell had been built during renovations of the Club. The original builder had engaged a firm of architects to prepare a concept design, but the builder went into voluntary administration part-way through the construction and prior to the erection of the staircase from which the respondent fell. The Club then directly employed the previous builder’s 26 year old foreman to complete the works, an exercise he undertook without any further involvement of an architect or experienced builder. The respondent called two architects, a building expert and a clerk-of-works who had experience with the construction of staircases and of the construction of licensed premises. They gave uncontradicted evidence that:

(a) the staircase breached numerous provisions of the Building Code;

(b) the staircase was badly designed;

(c) the staircase was irregular and uneven in its goings, risers, balustrade height and radius;

(d) the staircase was dangerous and should have been removed;

(e) helical or spiral staircases should not be built in licensed premises.

20 As we have noted, the appellant called no expert or other evidence to resist these conclusions and eventually conceded that as the balustrade of the staircase was 100 millimetres (4 inches) less than the minimum required height of 1,000 mm or a metre, the Building Code of Australia had been breached.

21 The critical issue at trial was whether one or more of the breaches of the Building Code had caused the respondent’s fall, that is whether his fall was caused by the realisation of the risks inherent in the condition of the premises, or were not so caused. No other issue relating to liability could have a claim for consideration as a ground for a new trial, which is the remedy sought on appeal, having regard to the need to show a substantial wrong or miscarriage: Supreme Court Rules Pt 51 r 23.

22 It appeared to be common ground at trial that the question of what happened during the gap of a few seconds during which the respondent was not observed was critical to resolution of the causation issue. The trial was run on the basis that that issue fell to be determined by reference to a number of evidentiary matters including Ms Lovett’s evidence, the evidence of the respondent’s experts, a view at the club, expert evidence of defects in the staircase which could cause a fall, the absence of any evidence of horseplay by the respondent, the shortness of the period during which the respondent was not observed and his actions immediately before and after that period and the point on the floor where he was found after his fall.

23 The appellant’s essential contention at trial was that no inference could be drawn about what events and conduct intervened during the period when the respondent was not under observation and no finding establishing causation could reasonably be made; that the jury were faced with possibilities of equal degrees and to choose between them was purely speculative.

24 The principal lay evidence upon which the respondent relied was that of Ms Lovett, who had been following him down the staircase. In her evidence-in-chief she gave the following account of the circumstances leading up to the accident:

“Q. So did you and others speak together about leaving?
A. Yes, we did.

Q. Did everyone in the group leave together or not?
A. The group was separated, Anthony and I were in front and the rest were behind.

Q. Before people started to leave was there a plan that some would leave and some would stay?
A. Brad McCarthy and Robert Caldwell were staying. They were out on the balcony so we said good-bye to them out there and then we were leaving.

Q. By that stage who was in the group that was going to leave?
A. There was Anthony and myself, Casey Berry, Shannon Miller and Amy George.

Q. Where were Shannon, Amy and Casey?
A. They were behind us, still in the main bar area.

Q. When people were leaving who went first?
A. Anthony and I went first.

Q. Of the two of you who was ahead?
A. Anthony was ahead.

Q. Can I just get you to describe to us now, as you two were leaving the other two were still in the bar; correct?
A. Yes.

Q. What happened when you and Anthony started to leave?
A. Okay. We walked out and started to walk down a few stairs and the rest of the group weren’t directly behind me so I stopped, asked Anthony to wait and then I turned around to see where the rest of the group were.

Q. You said to Anthony stop and wait. How far down the steps were you at that stage, how many steps; do you know or not?
A. I don’t know the exact number but I was not at the top of the stairs, I was a couple of stairs down.

Q. Was Anthony ahead of you or equal with you?
A. He was ahead of me.

Q. By about how much?
A. When I turned to find the group I stepped up a couple of stairs so there was a couple of stairs in between Anthony and I.

Q. When you said to him wait, did you see what he did?
A. He turned to see why I had asked him to wait.

Q. Do you know what his position was? Did he turn in some direction or other?
A. Over his shoulder.

Q. Which shoulder?
A. His left.

Q. What, up towards you?
A. Yes.

Q. What did you do then?
A. I turned and looked for the rest of the group.

Q. Had you stepped up already?
A. I had stepped up so that I could see through the entrance area to see where the group was.

Q. Because you couldn’t see the group when you were further down?
A. No.

Q. Did you see the group?
A. I had seen Casey and Shannon.

Q. Were they coming?
A. They were just at some tables further in but they were making their way through.

Q. What did you do then?
A. Once I called out to Casey, then I turned around to get going down the stairs.

Q. Did she answer?
A. She saw me and acknowledged that I had called her.

Q. So you turned back?
A. Yes.

Q. How long do you think that you turned away from Anthony before you turned back again?
A. Probably only a couple of seconds, only long enough to sing out.

Q. When you turned back what did you see?
A. Anthony was falling over the rail.

Q. Can you describe what part of his body you saw and what position it was in?
A. I saw his feet off the ground and his body slightly curved, like he was trying to regain balance and he was falling.

Q. Were his feet off the ground when you saw him?
A. His feet were off the ground, yes.

Q. Where was his head?
A. It was on the other side of the rail but curved up as though he was trying to get back.

Q. Do you know if he was going over forwards or backwards?
A. He was going over backwards.

Q. Was he still in the same position on the steps as he had been when you last saw him?
A. The same area of the stairs?

Q. Yes?
A. Yes.

Q. Were you concerned?
A. Yes.

Q. What did you do?
A. He fell and I looked over.

Q. How did you get to the rail?
A. I walked to the rail and then looked over the rail to see where he was.

Q. What did you see?
A. He was on the floor bleeding.

Q. Was he still?
A. Yes.

Q. Where was he bleeding from?
A. His nose and ears.

Q. You then went down the stairs?
A. Yes.”

25 Among other things cross-examination explored (we would not say challenged) was the statement that Ms Lovett saw the respondent turn to see why she had asked him to wait and looked over his left shoulder: in her oral evidence in chief she said that this had happened, but in early statements she had not mentioned whether this had happened, and so far as evidence went, she was first asked whether it happened in a later interview, or was led to say that it happened. It was well open to the jury to accept her evidence that this was part of the event.

26 It is not possible on the evidence to be precise about how many stairs the respondent descended, or how many stairs Ms Lovett descended before she went back to contact their companions. It is not possible on the evidence to be precise about how long was the interval of time when she did not have the respondent under observation; the longest time reasonably available would be based on her accepting the cross-examiner’s suggestion that it was possibly three or four seconds while saying that she did not know the exact time frame.

27 The appellant’s substantial complaint relates to evidence given over objection by Mr Donald Meikle, a lecturer in structural and applied anatomy, and by Mr Geoffrey Thomas Hosford, a lecturer in biomechanics. Counsel for the appellant accepted that if the evidence of Mr Meikle or Mr Hosford was rightly admitted, it was open for the jury to find causation.

28 On 7 March 2006 the primary judge gave reasons for his admission of the experts’ evidence. That judgment relevantly states:

“2... the core of Mr Maconachie’s submission was that the reports did not meet any of the criteria of expert evidence considered by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, which his Honour summarised in that judgment at [85]. In short, it was put that no field of specialised knowledge had been identified in which either witness was shown to be an expert, that many of the facts recited by them were not established by the evidence in the trial, and that it was not apparent how the application of such expertise as they professed bore upon the facts they assumed or observed so as to produce the opinions which they expressed.

....

5. Mr Maconachie pointed out that the authors of the report examined only one of a number of possible mechanisms of the plaintiff’s fall, and argued that even that mechanism was, at least in part, speculative and unsupported by the evidence. Generally, he submitted that the report did not amount to an elucidation of the facts by any relevant expertise. At best, he said, it was an elaborate and needlessly technical statement of the obvious: that a man who for some reason leans against a balustrade which is too low to support him will fall over it. He argued that the evidence was irrelevant and, in the alternative, that I should reject it in the exercise of my discretion under s 135 of the Evidence Act.

6. I must say that there was considerable force in Mr Maconachie’s argument. Nevertheless, it appeared to me that there was enough in the report to warrant the admission of the evidence and that Mr Maconachie’s criticisms went only to its weight.

...

8. ...it seemed to me that it was legitimate for the witnesses to confine their evidence to the mechanism of the falls which the plaintiff contended, and that that was a mechanism which was fairly available from the other evidence in the trial. Further, it seemed to me that the expertise of each witness could make a contribution to the analysis of that mechanism over and above that which was available to the jury by the application of their common sense and everyday experience of life. The challenges which Mr Maconachie foreshadowed to their approach, I concluded, were for the jury to assess. .....”

29 His Honour rejected a computerised animation and still images derived from it prepared by the experts on the basis, inter alia, that his Honour did not see it as a necessary aid to the jury’s understanding of the experiments they had conducted. He saw it as giving undue prominence to their evidence about a possible mechanism of the fall, given that it was the defendant’s (appellant’s) case that that was but one of a number of possibilities.

30 His Honour’s ruling was made at the conclusion of a voir dire concerning the admissibility of the expert evidence and depended principally upon a consideration of their reports. Those reports, of course, did not go to the jury; each gave oral testimony. However his Honour’s ruling outlines the thrust of the appellant’s approach to the expert evidence at trial and, presumably, underpinned his rejection of numerous objections to the experts’ oral testimony taken by counsel for the appellant. It is significant to note that counsel did not object that their evidence went impermissibly to an ultimate issue, an argument which, while advanced orally in this Court, was not clearly pursued in the end, and was not the subject of a ground of appeal.

31 Mr Meikle and Mr Hosford are the principals of a company called Perform Enhance which essentially analyses movement, more specifically slips, trips and falls. Perform Enhance (meaning Mr Meikle and Mr Hosford) were retained for the purpose of the respondent’s litigation.

32 Mr Meikle had studied anatomy, then lectured, predominantly in that subject, in universities and similar institutions for over 30 years. He said that he taught structural and applied anatomy, which involve looking at the structure of the skeletal system, joint physiology, range of movements of joints and muscles and how they produce movement.

33 Mr Meikle and Mr Hosford interviewed Ms Lovett in a three-way telephone interview, a transcript of which became exhibit H. On our reading, Ms Lovett’s evidence in chief substantially corresponded with exhibit H. Mr Meikle and Mr Hosford assumed the information Ms Lovett conveyed in the course of that interview was true for the purposes of tests they conducted. Using the information obtained in the telephone interview with Ms Lovett, Mr Meikle and Mr Hosford sought to reconstruct the manner in which the respondent might have come to fall from the staircase.

34 They carried out measurements of the staircase in detail and also made measurements of the respondent. They observed and saw the respondent emerging from the bar area and descending the first 4, 5 or 6 steps of the staircase. They made some more general observations. Then Mr Meikle and Mr Hosford had a replica of the top five steps built. The replica was not exact; the replica was reduced in width and it did not exactly reproduce variations in the dimensions of parts of the staircase, and employed averages. By their measurements the riser (or step height) from the first step from the top to the second step varied from 175 mm on the inside (nearest the balustrade) to 185 m at the extremity. Proceeding downwards, the riser heights of the next steps on the inside were 165, 177, 177, 177, 180 mm. They also measured and found variations in the going or width of the treads of the staircase, taken at a standard distance from the stringer of the railing; from the top down the goings were measured at 240 mm, 247 mm, 245 mm, 240 mm, 260, 250 and 237mm. They also measured the height of the top of the railing above the nosing or leading edge of each step and found those heights to be 920, 900, 925, 985, 890 and 870 mm. They made other measurements. The replica was built with consistent risers and goings to the average of the top six steps. The railing on the replica was built so that its height could be varied.

35 They then made observations in which three students descended the model. The three subjects were compared with the respondent in respects which, according to Mr Meikle's opinion, were relevantly similar, that is, that their centres of mass or centres of gravity were very close to that of the respondent. Mr Meikle and Mr Hosford made observations of the subjects walking down the stairs, making stops and turns, leaning against the rail and initiating falls; and the events were filmed. Mr Meikle had regard to what Ms Lovett told him about the event. Mr Meikle's evidence was illustrated with diagrams including one showing the rail and its angle in relation to the body and centre of gravity of the subject.

36 Mr Meikle’s evidence concerning his observations during the reconstruction exercise was:

“Q. I want to take you back to what you observed when the test subjects were turning and then falling across the rail. Can you describe, firstly, what you saw when the test subjects carried out the activity that you asked of them?

A. It involved a casual descent close to the rail, hand on rail from almost the beginning of their descent, a step forward on one foot, the right foot, and a casual turn to look over the left shoulder.

Q. On the call of ‘wait’?
A. On the call of ‘wait’, yes.

Q. And then they having turned, what then occurred?
A. They leant quietly, gently against the rail and with the rail at the lower heights, they fell over.

Q. What was the lower height -
A. 87.

Q. 87?
A. Yes, I think it was 87.5. The average height of the rail was 87.5. We set our rail at 87.

Q. That was the first setting of the rail height?
A. That’s correct, yes.

Q. And they went over, did they?
A. They went over.

..........

A. The back first arched moderately, there was a sudden jerking of the trunk or the torso and the head forward and with that the same instant the legs lifted, left leg first. They were elevated from the treads. The left leg lifted first and it was followed immediately by the right leg.

Q. Can I get you to go through that step by step. Firstly there was a call ‘wait’?
A. Yes.

Q. The subjects had the right foot down on the step below?
A. Yes.

Q. They then turned their head over their left shoulder?
A. That’s correct.

Q. They were then asked to lean back, were they?
A. To make contact with the railing, yes.

Q. Leaning backwards?
A. Yes, in most cases they had to lean back to do that.

Q. What then happened?
A. Contact was made with the railing and there was an instant reaction to prevent a backward fall.

Q. Do you mean a physical reaction?
A. Yes.

Q. What did you observe?
A. There was a jerking forward of the trunk and head.

Q. So the upper part of the body?
A. The upper part of the body from the railing above and an instant later the feet were elevated from the treads.

Q. What happened to the subject then?
A. They then entered a position over the railing which had their centre of mass on the fall side and it is at that point that they were caught.

.....

Q. We’ll just move on, Mr Meikle. Was there any significant variation in the way in which each person moved or reacted as they carried out the instruction from the time of stepping down to reaching the point of no return?

A. No significant variation.”

37 In the course of his evidence Mr Gormly of Senior Counsel, who appeared for the respondent below with Mr Mrsic, asked Mr Meikle the following questions:

“...I want you to assume that Mr Haywood was walking down the steps of the helical staircase of the club on the right hand side and when some steps down, perhaps four, he had his right hand on the balustrade rail. That he turned to face Ms Lovett when called and by that time, this is an assumption, he had one foot down and one foot up. That he either stood there for a second or two as Ms Lovett turned as well. That he leant back and that his lower back and/or buttocks came into contact with – because he leant against it the balustrade rail, I want you to assume that the balustrade rail was the height you have given in evidence as measured heights.

I want you to assume that having come into contact with the balustrade rail he had his upper body extended over the rail to some extent and that he endeavoured to correct or save himself, but that in doing so his feet rose as part of a fall. His upper body continued over the rail with his legs above and fell over the rail.

These are the assumptions I ask you to accept. Tell the court what applied anatomy was involved from the time Mr Haywood turned his head to look over his left shoulder when called by Ms Lovett until when he was seen by Ms Lovett with his feet in the air?”

[After an objection which was overruled, the witness stepped down from the witness box and demonstrated the following answer]

WITNESS: I was going onto say the moment the head was turned, if I am to presume that, the compensatory and reverberatory movements that occur all the way down the trunk will have the body turning in that manner(indicating). If I want to prop on my front leg, and I have chosen the downward step as the most stable position from which Mr Haywood could execute a turn, it was the safety, and it can be done in one step, very unstable. We have taken the most stable.

So the head turned resulted in a propping on the front foot. That propping involves a movement that will have the toe turned to the midline of the body. It will not happen with a prop toe turned out while we are trying to turn against the architecture of the hip joint. It will not happen.

The ligaments are so arranged that the inward turn of the foot will facilitate the movement. If I want to stop turn, my toe is turned to the midline. In doing that on such a narrow tread, it means that my little toe, the bowl of my little toe, the head of the fifth metatarsal, is placed at or very close to the nerve of that. It is a very slender bone. It is very unstable. If we turn an ankle, it is usually the one that will break.

If the weight is applied to the little metatarsal bone, it is on the verge of the nerve feeling that instability. As that happens, the leg begins to assume the weight of the body and the hip on the support side needs to be stabilised. That is done by the fleshy muscles on the side of the hip. Do I need to name those? They are collectively called the lateral pelvic stabilisers. It is a fan-shaped muscle with the fan at the top and the narrow handle of the fan at the bottom. It converges from a very broad origin down to the nub of bone.

Most of the fibres of that muscle lie behind the ball that fits into the socket, behind the axis rotation of the hip joint. Most of the fibres therefore are pulling obliquely from the back of the hip bone forward down to the tricanter (indicating). In pulling along the line of those muscle fibres the pull of those fibres will further assist this augmented object by turning to the left. It has been assisted by the head and the hand on the rail which in itself will put my right shoulder in advance of my left. The turning of the left foot, continues the turn. The contraction of the back fibres of the fan-shaped gluteus medius will further turn me.

I am now almost through my turn which began as a simple head turn to look up the staircase at Ms Lovett. As the hip joint on the right takes the weight, the large buttock muscle starts to take over some of the load, so in other words there is a recruitment from the side of the hip to the muscle fibres of the butt to being at the back, so called gluteus maximus. The fibres of that muscle also cross obliquely from the midline down to the side of the thigh bone. Their line of pull is in the same direction as the back fibres, the posterior fibres of the medius, the smaller part.

As soon as the gluteus maximus becomes involved, and it is the biggest muscle that becomes involved, as soon as it takes over not only does it assist with the rotation but in attaching to the back of the pelvic bone, the side pelvic plate, it will also pull downwards on the pelvis and our pelvis alters its tilt with the interplay of muscles from the front to the back.

The gluteus maximus now completes the turn. It then pulls downwards on my pelvis at the back, nothing we can do about it, it is just one of its movements based on his obliquity across the hip joint and its attachment to the pelvis.
In twisting it causes me to lean back slightly. I still have a slight grip on the rail. I have turned, been dragged backwards and my trunk now is just beyond the reference position.** Here I am comfortable. Here I am hyper extended, further hyper extended. The further the hyperextension the greater strain on the muscles. That psoas muscle is stretched and it reacts by contracting to keep me upright. But I have stretched to the point where my centre of mass is over or slightly behind the railing and will prevent me from bringing the trunk back and instead elevate the feet from the floor.

The more I contract to try to correct, the more it lifts the feet, so ultimately it rolls the pelvis backwards over the railing and into free fall. This is a sequential recruitment of muscle that is reflexed. It is automatic. We do not think about it.”

** The “reference position” was standing, feet together palms forward, head erect.

38 The appellant submits that there was no evidence to support the assumptions set out in italics in the above passage. It also argues that in cross-examination Mr Meikle said he had relied upon other assumptions as to which there was no evidence. Those assumptions were that if a person “has an impact below the centre of mass as we suddenly realise we are a little too far back, our natural reaction will be to correct it”, if there was not contact with the rail, there was a backwards lean and that the respondent’s foot was at a distance of no more that 15 centimetres from the stringer at the bottom of the rail.

39 Mr Hosford gave evidence of the biomechanics involved in a fall assumed to have occurred in substantially the manner observed with the test subjects during the reconstruction exercise. The reference to biomechanics was to the “velocity principles and physics that ... come in at the end of the anatomical analysis.” It is unnecessary to set out his evidence in detail. It proceeded on the assumption that at the time the respondent turned to face Ms Lovett, presumably in response to her call to “wait”, he had one foot on one step and the other on the next step up. Operating on the assumption that the lower foot would be the right foot, he gave the following evidence:

“GORMLY: Q. Carrying on from that point, you have the head over the shoulder, one foot down, head over the shoulder turning and you say there is the potential for an overbalance?
A. In that particular position there is no saying about a particular time fraction, it could very well be that is not just a smooth run through where it all happened, just left, it could very well be you could teeter in that position, over the right foot for one to two seconds even, and then with the body in a relaxed position whatever it could continue. That is a very difficult one, but one could imagine there could be a little break in the sequence before the actual further movement back occurs.

Than what you have is you have a position, as Mr Meikle would have described I think as hyper-extension where the movement back is very natural with the shoulders and head to create that curve in the back either just below or actually on contact and probably exaggerated on contact with the rail. Obviously something is stopping that motion, is going to make you go a little bit more like that. That is an initial position if you like against the rail, back to the rail, hyper-extended and then from that almost incidentally whenever you feel that your centre of gravity, centre of mass has just, if you like, tipped across onto the other side of the rail and you feel you are losing balance what you will do automatically is try and recover that balance. That would go without saying.

You feel yourself going, the automatic response to that is for you to try and move back with your head and shoulders and/or the trunk, and what follows then is a disastrous circumstance because in trying to retrieve, what you are inevitably doing is making the situation worse yourself. It is one of those strange anomalies, by actually trying to retrieve it what happens is your feet lift straight off the floor and this is backed up by the force plate readings that we have which show in fact the feet have virtually no friction contact with the floor at all. The feet lift like this and then you go into the position that is called the dish position where in fact you are like this and then it is rotation over the rail.”

40 The appellant called evidence from Associate Professor Cross, a physicist, which it is unnecessary to detail but which, in short, contested the validity of the experiments and conclusions of Messrs Meikle and Hosford and advanced the opinion, well supported by circumstances, that there was insufficient information to determine the matter by which the respondent fell over the hand rail.

41 The appellant sought to persuade the jury that the respondent’s fall was unrelated to the defects in the staircase and that the true explanation for his fall was that he sat on the railing to slide down the balustrade and fell in the process. It sought to tender evidence from a Mr Caldwell to the effect that on an occasion when he was present at the Club with the respondent (there being no precision as to the date save that it was prior to the accident) he saw the respondent sit on the rail at the bottom of the stairs and slide down it to the floor below, a distance encompassed by about the last two stairs: trial judge’s judgment on admissibility of evidence. The trial judge refused to admit Mr Caldwell’s evidence in the exercise of his discretion under s 135 of the Evidence Act 1995 on the basis that it would be unfairly prejudicial to the respondent.

42 The appellant's counsel at trial observed that there was no evidence that the respondent did not attempt to sit on the rail or to slide down the rail, but that there was evidence that it was possible for him to do so. This contention is correct; it was for the jury to assess the probabilities attending whether or not the respondent behaved in one of those ways. The possibility that some such event happened is clear, although it would have involved the respondent taking up a different course of action than the one he was engaged in while he was observed; the attendant possibilities are jury questions.

43 Counsel for the appellant at trial put to Mr Meikle three alternative scenarios to that he and Mr Hosford had surmised caused the fall: that the respondent had sat on the balustrade and overbalanced, that he climbed the railing and overbalanced or that he tripped as he descended the stairs and his momentum carried him over the steep, curving balustrade. Mr Meikle rejected each, in essence because those different positions prior to the fall would have produced a body position different to that Ms Lovett observed.

Summing up

44 The appellant does not complain about any aspect of the summing up. However, in the light of its complaints about the use to which the jury may have put the expert evidence, it is necessary to set out the trial judge’s charge to the jury on this issue (as to which there was no complaint below). His Honour said:

“Let me say something to you about expert evidence... It is important...that you don’t be dazzled by science. Expert evidence has its place in a court case. The opinions of experts can be of real assistance in deciding questions of fact but those opinions must be considered in the light of all the evidence in a case, including any eyewitness evidence that might be available. The mere fact that the experts are talking in an area of human knowledge with which you are probably not familiar does not alter the fact that it is for you to assess their evidence, as you would the evidence of any witness. You are entitled to look at the witness’s proved qualifications and experience and assess his or her ability to express the opinions that he or she has.

Most importantly, experts do not know what happened in a particular incident or accident. They express opinions based upon factual assumptions. They are asked to assume facts and, assuming those facts, they express an opinion. Their opinions are only as good as the assumed facts are. It is for you to determine whether the assumed facts are established by other evidence in the case. If they are not, the expert’s opinion is at best weakened and may be eliminated entirely. If they are, then you are entitled to have regard to the expert’s opinion and give it such weight you think it deserves in light of all the evidence in the case.”

45 Later, his Honour said:

“That necessarily brings you to the evidence about how the plaintiff fell. That is entirely a matter for inference. The plaintiff has no memory of the fall. Ms Lovett did not see the fall, or at least did not see enough of it to be able to tell us how it happened. No one else saw it. What you have to do is examine the evidence of so much as Ms Lovett did see. You have to determine if you find her evidence about what she did see reliable. You have to examine the other evidence in the case, including the expert evidence of Messrs Meikle and Hosford on the one hand and Associate Professor Cross, on the other. From all that evidence you have to ask yourself if you can draw any inference or conclusion about the mechanism of the fall ...As I have said the mechanism of the fall is a matter for inference...It is for you to examine all the evidence. If you find you can do no more than arrive at bare possibilities that remain in the area of guesswork or speculation, the plaintiff has not made out his case on either count. To make out his case on either claim he has to satisfy you that the mechanism of the accident for which he contends is probable and, if you find there are competing explanation for the fall, he has to satisfy you that the one for which he contends is more probable than any other.”

Issues on appeal

46 The Notice of Appeal contained a number of grounds asserting that the trial judge had erred in admitting Mr Meikle and Mr Hosford’s evidence. A number of grounds were abandoned during the appeal. One ground which remained in the Notice of Appeal after Mr Watson SC, who appeared for the appellant with Mr J Sheller, but not below, had marked up the Notice of Appeal to identify those grounds no longer pursued, was a complaint that it had not been proved that there was a field of specialised knowledge germane to the question of what happened to the respondent, alternatively that if there was such a field it had not been established that either expert had acquired learning sufficient to become an expert in it. Mr Watson said the appellant no longer relied on either of those grounds but that he had left them in the Notice of Appeal because they went to the issue that the opinions Mr Meikle and Mr Hosford expressed did not relate to their expertise. He did not elaborate upon this proposition at any stage and we have treated these grounds of appeal as effectively, if not formally, also abandoned.

47 Mr Watson also left in the Notice of Appeal other grounds relating to the expert evidence which, again, he did not address in his oral submissions. He limited the appellant’s complaints about the expert evidence to the following:

(a) that the issue on which the opinions Mr Meikle and Mr Hosford were expressed did not relate to their expertise;

(b) that they made undisclosed assumptions about the credibility of witnesses;

(c) that they conducted an interview with Ms Lovett and suggested scenarios to her which she adopted and which became, according to them, established fact and also that they drew inferences from what she said which were matters for the jury;

(d) that they reconstructed the staircase and conducted experiments upon it in a way which was “neither expert nor real”.

(e) that the trial judge ought to have excluded the expert evidence on the ground that its probative value was substantially outweighed by the prejudice it might cause the appellant or its capacity to be misleading, confusing or to cause or result in undue waste of time: s 135 Evidence Act.

48 The second ground of appeal on liability upon which the appellant relied was that the primary judge erred in refusing to admit evidence from a Mr Robert Caldwell to the effect that he had seen the respondent slide down the balustrade on a previous occasion. Mr Watson did not contend that the rejection of Mr Caldwell’s evidence, if found to be erroneous, would have had such an effect on the trial as to have warranted an order for a retrial.

49 It is sufficient to dispose of this argument, in our view, to note that the trial judge rejected Mr Caldwell’s evidence in the exercise of his discretion pursuant to s 135 of the Evidence Act. As such this Court would only interfere with his Honour’s decision if the appellant was able to establish an error of the nature of that referred to in House v R [1936] HCA 40; (1936) 55 CLR 499. The appellant submits that there was no proper basis upon which the trial judge ought to have exercised his s 135 discretion. It sought also to submit that on a comparative basis the expert evidence was more likely to be prejudicial than Mr Caldwell’s. We can discern no error in the trial judge’s exercise of his discretion to reject Mr Caldwell’s evidence. His Honour made his ruling on the thirteenth day of the trial and was in a position of unique advantage to assess the likely effect of Mr Caldwell’s evidence. In our view no error has been demonstrated in his Honour’s rejection of that evidence.

Submissions

50 The appellant’s essential complaint was that the experts did not give expert evidence but, rather, in effect told the jury how the accident happened, whereas that was a question for the jury to determine. It contends their evidence was not based upon expert knowledge, but amounted to speculation about what the respondent might have done while unobserved. This, it was argued, was the approach condemned in Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 (at 490 – 491) where Dixon CJ (with whom Fullagar J agreed) held that expert evidence was inadmissible where it was not related to any area of the witness’s expertise but, rather, was “use[d] to argue the plaintiff's case and present it more vividly and cogently before the jury”.

51 In answer to these contentions Mr Gormly acknowledged that the assumption he put to Mr Meikle that the respondent had “one foot up and one foot down” when he turned to face Ms Lovett was not otherwise supported by evidence, but contended that that was an inference the experts were entitled to draw from their expertise. We understood Mr Gormly to be saying that Ms Lovett had not made that observation of the respondent, but also drawing attention to the fact that in cross-examination, Mr Meikle said the one foot down, one foot up stance was that adopted by two of the three experimental subjects and that that was the “safety method for a turn to be executed”.

Consideration

52 The appellant’s essential submission, if it made good its argument that the expert evidence was wrongly admitted, was that there should be a new trial, unless this Court was able to say the experts’ evidence could not possibly have influenced the result. Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226 and Clark v Ryan were relied upon to support that proposition. There was debate in the course of the appeal whether those authorities, which expressed the common law position as to the circumstances in which a new trial will be ordered after a jury trial, applied to an appeal governed by SCR Pt 51 r 23. Under that rule, the Court is not to order a new trial on the basis, inter alia, of the improper admission of evidence, unless “it appears ... that some substantial wrong or miscarriage has been thereby occasioned”. In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 (at [7], Gaudron, McHugh and Hayne JJ said that the pre-1997 equivalent of SCR Pt 51 r 23 (SCR Pt 51AA r 16(1)) reflected the well established common law principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. Their Honours referred for support of that proposition to Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 (at [28]) where Gaudron ACJ, McHugh, Hayne and Callinan JJ endorsed Dixon CJ’s statement in Balenzuela v De Gail (at 234-235) that:

“[T]he true view, it may be suggested, is that at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued.” [emphasis in original].

53 The subject was discussed in Richard Martin Tory v Michael Megna [2007] NSWCA 13 at [27] – [46] by Spigelman CJ (Beazley JA and Bryson JA agreeing). Spigelman CJ held (at [46]) that the Court should apply the reasoning in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 concerning the “no substantial miscarriage of justice” proviso in criminal appeals, which he concluded was not entirely consistent with Balenzuela, to the interpretation of SCR Pt 51 r 23.

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] HCA 58; ; (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.

78 Neither the jury assessing damages, nor this Court reviewing a jury’s award, is permitted to have comparative regard to awards in other personal injury cases. As all cases differ “no norm or standard [can be] derived from the amounts awarded in those other specific cases”: Planet Fisheries Pty Ltd v La Rosa (at 124-125).

79 Mason P commented on the disadvantage the Planet Fisheries Pty Ltd v La Rosa approach poses for a jury (and an appellate court) in The Trustees of the Roman Catholic Church v Hogan (at [55] - [57]). Heydon JA pointed out (at [59]) that the observations in Carson v John Fairfax & Sons Ltd (at 59-60) upon which the appellant relies to invite the Court to have regard to comparative general damages awards, concerned “whether it was permissible for juries in defamation cases to be given ‘an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes’, ... consisted of obiter dicta on that subject [and] did not in terms say anything about the distinct subject of whether juries in personal injury cases should be told about the range of general damages in those cases”.

80 In our view Planet Fisheries Pty Ltd v La Rosa is binding and precludes this Court from taking the approach the appellant suggests: Moran v McMahon (1985) 3 NSWLR 700 at 726 per McHugh JA.

81 We turn to consider the approach the jury could have taken most favourable to the respondent.

82 The respondent was aged 20 years and two months at the time of his accident, having been born on 18 November 1980. Evidence was given that he had a life expectancy of 54 years. As a result of the accident he suffered a fracture of the skull and the temporal bone, a right subdural haematoma, a right temporal extradural haematoma, bilateral frontal lobe contusions, bilateral haematoma – in short traumatic brain injury and also shock. The respondent’s case at trial was that as a result of those injuries he suffered permanent and irreversible brain damage, cognitive deterioration, memory impairment and short term memory failure, slurring of speech, personality change, depression, headaches, loss of energy, fatigue, sleep deprivation and frustration – again, in short, permanent damage to his personal, social and economic life and prospects of a successful family life.

83 Following the accident the respondent was an inpatient at Royal North Shore Hospital from 10 February until 19 March 2001 when he was transferred to the Royal Ryde Rehabilitation Centre. He was discharged from that Centre on 9 May 2001 and returned to his parents’ home in Casino.

84 As part of the attempt to relieve the effect of the brain swelling a craniotomy was undertaken which left a large scar on the respondent’s scalp. According to Dr Bleasel, the neurosurgeon called on behalf of the respondent whose evidence was not disputed, MRI scans of the respondent’s brain demonstrated that it had shrunk so that fluid-containing spaces which would ordinarily not be evident were filled with cerebral spinal fluid. In addition on a basal view, there was a “huge amount of brain missing” and “an alteration of the substance of the brain”. Dr Bleasel opined that these signs were typical of atrophy of the brain caused by trauma and consistent with the respondent’s accident.

85 Dr Bleasel opined after seeing the MRI scans that there was a likelihood that the respondent would suffer epilepsy, although its onset might be delayed for fifteen years or even longer so that it would occur about the age of 40. He said that if epilepsy developed the respondent would go on medication and, given the right management, it would be controlled however that there were always “a break-out every now and then in an epileptic.” He said that in some instances some intelligent people would get a warning that a fit was coming and could lie down but that sometimes epileptic fits came without warning in which event injuries such as further head injury were very likely.

86 Dr Bleasel also said that epilepsy would affect employment but was of the opinion that, in any event, the respondent was unemployable save, at most, in a protected workplace for part-time, simple, supervised jobs. He said the respondent could not manage his own financial affairs and that if he was to live alone he would have to be in a supervised house and would need round the clock supervision.

87 The respondent’s family and close friends explained how the respondent’s injuries had affected his life. Ms Lovett said he was a lot slower than he had been before the accident and could not go a full day without being totally exhausted, that he got quite irritated and traumatised when he could not do things and that there were a lot of things he could not do that he used to be able to do. His speech was slower and more pronounced and he did not really have a short-term memory. The latter evidence was confirmed by the respondent’s parents, who said his short-term memory was virtually non-existent. He was unable to recall appointments even within five minutes of being told about them. He was nervous driving and might drive 20 km once a month from his home in Casino. He had gone from being fairly tidy to being obsessive about his tidiness and appeared to have become quite reclusive. He had become vulnerable to such people as telemarketers and had become disinhibited in spending the little money he had.

88 In his summing up the trial judge emphasised to the jury, as was appropriate, that despite the parties’ respective schedules of damages, it was a matter for them to determine the appropriate sum to award for each claimed head of damages. As to economic loss, for example, his Honour directed the jury “to do your best to evaluate the loss of earning capacity”.

89 Mr Gormly submits, on this basis, that the Court cannot adopt the appellant’s approach to the inferred component for general damages. He argues that it was open to the jury, for example, to have awarded a greater sum for future economic loss than the respondent’s schedule had indicated.

90 Mr Gormly submits that the respondent was a young man with a limited work history, and that it was “impossible to tell what his future would have been”. A Mr Reid, who had employed him prior to the accident, spoke very highly of him as an employee. Members of his family had impressive career paths. One sister had studied electrical engineering at Sydney University and was employed by a bank, another was developing a career in travel. His father had risen from being a meat worker to a position as meat inspector employed by the Commonwealth Quarantine Service. His mother ran her own café business. The respondent’s counsel addressed the jury on the basis that the respondent may over time have “bettered himself”.

91 Mr Gormly contends that it was open to the jury to accept, on the basis of Dr Bleasel’s evidence that he would never work again. Equally the jury could have concluded that, but for the accident, he would have emulated his family’s enterprise and rise from a labouring position (which had been his effective employment prior to the accident) to one which attracted a larger figure for economic loss than the parties had hypothesised.

92 The jury was given a schedule of average weekly earnings from the Bureau of Statistics. The respondent called a chartered accountant, Mr Rossetto, of Furzer Crestani Services who explained how future economic loss was calculated on the assumption that the respondent would never work again. The jury clearly had the means of calculating figures for future economic loss which went beyond the figures set out in the parties’ schedules.

93 The respondent was a young man who had barely embarked upon adulthood. He was energetic and fit, and, as Mr Reid’s evidence demonstrated, a dedicated and reliable employee. His family experience was one of hard working and enterprising parents and siblings.

94 The jury was entitled to conclude, in our view, that the respondent’s personal life had been substantially ruined, that he would never work again and that his promising economic future had been dashed. It was well open to it to depart from the figures in the parties’ schedules of damages and determine the global figure they thought would best compensate him for that loss. In our view, doing our best to apply community standards and assuming the jury has taken a view of the evidence most favourable to the respondent, we do not regard $2,500,000 as a manifestly excessive award.

95 The appeal should be dismissed with costs.

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LAST UPDATED: 23 February 2007