ZELKOVIC v STATE RAIL AUTHORITY [1995] NSWCA 536

ZELKOVIC v STATE RAIL AUTHORITY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and COLE JJA 25 September 1995, 25 September 1995

[1995] NSWCA 536

APPEAL — District Court jury — verdict of out of pockets only — whether portrays error held: Cannot stand — new trial ordered.

PRACTICE AND PROCEDURE — District Court appeal — reassessment of damages contested issues of liability and damages held: Unsuitable for reassessment.

LAW REFORM — motion for retrial after verdict — should be available beyond day of verdict.

APPEAL — jury verdict — miscarriage of function — no error of direction on law or fact alleged — after six day trial, strongly contested on liability and damages, jury returns with verdict of $200.40 — such sum is the out of pockets for physiotherapy agreed between the parties as sum to which plaintiff entitled in the event of recovering a verdict — On application for leave to appeal and appeal to the Court of Appeal — held: (1) The Court could and should treat the summons for leave to appeal as the hearing of the appeal and did not for that purpose require the totality of the evidence of the six day trial to be placed before it. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 distinguished; (2) Nonetheless, the Court would only reluctantly disturb a judgment based on a jury's verdict and then only for clear error being demonstrated. Brown v Dean and Anor [1910] AC 373 applied; (3) The jury verdict displayed such error, suggested compromise and indicated a misconception of the jury's function. Either the plaintiff was entitled to no verdict at all or to a verdict proper to her injuries and, at the least, general damages for the physiotherapy expenses that were found by inference to be her entitlement; (4) New trial ordered.

PRACTICE AND PROCEDURE — Court of Appeal — appeal from District Court- personal injuries claim — jury verdict — disputed issues of liability and damages — judgment based on jury verdict set aside — whether Court of Appeal should reassess — avoidance of second protracted trial — held: unsuitable for reassessment by Court of Appeal — general new trial ordered.

LAW REFORM — District Court — new trial motion following jury verdict — requirement of District Court Act 1973 s126 that application be made on the day of verdict — suggestion by Kirby P that a longer interval should be permitted to obviate unnecessary appeals to the Court of Appeal.

District Court Act 1973, s126, s127, s130

Kirby P Before the Court is a summons for leave to appeal. It has been treated as the hearing of the appeal although upon that course the respondent State Rail Authority made a submission to which I will shortly advert.

CONTESTED CLAIM FOR DAMAGES FOR A FALL AT A RAILWAY STATION

The proceedings arose out of a claim by Ms Angela Zelkovic (the appellant) in respect of injuries which she alleged occurred to her on 14 May 1989. The appellant claimed that whilst walking on that day towards a platform bench on

2 UNREPORTED JUDGMENTS

the premises of the St Peters railway station occupied by State Rail Authority (the respondent) she suddenly tripped and fell, causing injury to herself. She claimed that the injuries were caused by reason of the negligence of the respondent.

She issued a statement of claim out of the District Court within time. The statement of claim produced a statement of grounds of defence on behalf of the respondent. The defence put in issue all of the appellant's claims and denied

negligence. It also raised a defence of contributory negligence. It put in contest the appellant's claim for damages.

The matter came for trial before Downs DCJ and a jury of four. It was the respondent, the Court has been informed, which summoned the jury. The proceedings continued on no fewer than six days - 4, 5, 6, 7, 10 and 11 April 1995.

JURY RETURNS WITH A VERDICT FOR AGREED OUT OF POCKETS.

The proceedings concluded in a verdict of the jury in favour of the appellant. That verdict quantified the appellant's damages in the sum of $200.40. That sum was not coincidental. It represented precisely the sum which was agreed between the parties as the out of pocket expenses which, if the appellant were entitled to a verdict, she would be entitled to recover from the respondent. The sum represented costs of physiotherapy expenses for treatment received in that form by the appellant. No concession was made by the respondent that the treatment was necessary or was a result of the subject injury.

Downs DCJ gave a summing up to the jury on 11 April 1994. It is not suggested that the summing up displayed any error of legal principle. Nor has it been suggested to this Court that there was any relevant misstatement of fact by his Honour. No relevant redirection was sought at the trial.

The return of a verdict in the sum of $200.40, being exactly the out of pockets agreed, is in my opinion such as to warrant the grant of leave and to require that the appeal, pursuant to such leave, be upheld. Unfortunate though it is, it also requires the return of the matter for retrial in the District Court. It may be hoped that, if a retrial is had, it can be conducted before a judge sitting alone in order to save time, perhaps by the tender of some, or all, of the transcript of the first trial. But that will be a matter for the parties to decide when, in due course, as I will propose, a retrial is had.

RESPONDENT'S DEFENCE OF THE VERDICT FAILS.

The respondent resisted the order for a retrial and indeed the grant of leave to provide for that order. It did so upon a number of grounds.

First, it said that the appellant had been demonstrated by the evidence to be a person who was not always a witness of truth. That may be so. But, even if the appellant exaggerated and exaggerated grossly her symptoms, if she was entitled to a verdict, she was entitled to a verdict in a proper sum. If she was entitled to the verdict agreed for the out of pocket expenses then, by inference, the physiotherapy in respect of which those out of pocket expenses were claimed would have required some treatment which, by further inference, would have involved some discomfort, pain, inconvenience, and disturbance of her personal life. For such considerations she was entitled, upon the premise stated, to have proper general damages. To provide her with the out of pocket expenses alone and to make no allowance whatever for the pain, discomfort, inconvenience and disturbance of the enjoyment of life portrays an error on the jury's part in the understanding of their function.

URJ ZELKOVIC v STATE RAIL AUTHORITY (Kirby P) 3

It is an error that evidences the fact that the jury acted upon an incorrect basis. They brought in a verdict which was not a true verdict. This is a conclusion to which I come with reluctance. Cf Brown v Dean and Anor [1910] AC 373 (HL), 374; Nominal Defendant v Hook (1962) 113 CLR 641, 644. The respondent correctly pointed to the principles of restraint in the interference with jury verdicts. Those principles are at the forefront of my mind. They were stated again by the High Court of Australia in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 41. The Court said that a party, seeking to disturb a jury verdict, must show that: "... the jury has reached a conclusion which is against the evidence in the sense that the evidence IN ITS TOTALITY preponderates so strong/y against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach."

It is true that this Court does not have before it the totality of the evidence. To produce the total evidence of six days of trial in the District Court would be a burdensome and expensive task. But it seems to me that the Court does not require that evidence before it in order to see the fatal flaw in this jury's verdict. That flaw was, as I have said, in providing a verdict which was exactly equivalent to the agreed out of pockets and not a cent more; nor for that matter a cent less.

The totality principle is obviously correct and binding on this Court. But it is a principle which is directed to the generality of cases where a verdict is returned which is very small and which is challenged in a court as being so small as to evidence error warranting the interference of the Court. See eg Progress and Properties Ltd v Craft (1976) 135 CLR 651, 672. Alternatively, where it is argued that a verdict is so high that it displays the same error in reverse, the totality of the evidence must be scrutinised to assess the sum awarded and the Court's conception of the proper sum. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369.

In this case we do not need the totality of the evidence to come to the conclusion that the verdict returned is erroneous. Its precise amount indicates that, although properly instructed by Downs DCJ, the jury misunderstood or misconceived their function. Alternatively, it indicates that the jury reached some kind of compromise which was an incorrect discharge of their responsibilities in the case.

The respondent next said that the Court should infer that the verdict was a deliberately contemptuous one. That may also be so. But the fact that it coincides exactly with the out of pockets which it was agreed the appellant was entitled to recover if she were entitled to a verdict, is an indication that the jury have misconceived their function. This was not a small verdict alone. It was a verdict for the agreed unrecovered special damage, and nothing more. The reasoning which led to such an award had to lead also to the award of at least some general damages relating to the attendances for which the special damages were incurred and any other general damages which were properly the consequences of the respondent's proved negligence.

It was said for the respondent that the jury were entitled to bring in a very small verdict. That is perfectly true. A review of the summing up by Downs DCJ indicates that it would clearly have been open to the jury to bring in a very small verdict indeed in this case. But in my opinion it could not be a verdict of exactly, and no more than, the out of pocket expenses which had been incurred for physiotherapy attendances allegedly related to the appellant's injuries.

4 UNREPORTED JUDGMENTS

Various other submissions were put to the Court concerning the threshold requirement of leave. It appears that an application was made for a retrial before the learned primary judge pursuant to the District Court Act 1973, s126. However, as the application was not made on the day upon which the jury returned its verdict, it was refused. Hence the necessity of an application to this Court.

This is the second appeal in two weeks where a jury verdict was returned which was so derisory that it has required an order for a retrial. In the first, the application under s126 of the District Court Act was not made on the day of the jury's verdict, at least so far as the record of the District Court showed. It was made immediately at the beginning of the following day. No point was taken in that case concerning the jurisdiction of the Court to order a new trial under s126 of the Act. The District Court Judge proceeded to do so. It was the challenge to that order which, by leave, brought the matter to the Court of Appeal. See Costains (Australia) Pty Ltd v Atkinson Court of Appeal (NSW), unreported, 4 October 1995; [1995] NSWJB 112.

In the present case, the appellant was not so lucky as the application under $126 was not entertained by Downs DCJ, not having been made, as s126 in terms requires, on the day of the verdict. Experience teaches that, immediately following such verdicts, confusion and shock tend to reign. There are good reasons why applications to the judge of trial for a retrial should be made promptly. But it is not self evident why they need to be made on the very day of the jury's verdict. Doubtless, the provision has historical reasons. It could be timely, to spare this Court from cases such as the present, to afford power to the District Court judge of trial to order a retrial, although such application is not made on the day of the verdict. As an application for leave to appeal may be made to this Court within fourteen (14) days of orders. Such an interval might be more appropriate. This suggestion should be called to the notice of Parliament.

The appellant has acknowledged that leave is required. See s127(1) and s130(1)(g)(v) of the District Court Act 1973. Hence, the summons for leave to appeal to this Court. For reasons which I have stated it is appropriate to provide that leave. Only by so doing can the Court correct a substantial wrong which has occurred.

Other submissions were put to the effect that the Court would not interfere with the primary judge's discretionary costs order. I entirely agree that we would not disturb the costs order made by Downs DCJ after the trial, were the verdict to stand. However, I am of the view that the verdict must be set aside. That costs order will fall with the judgment which depended on the verdict. Costs of the first trial will have to abide the outcome of the second trial. This because, in the eye of the law, the first trial has miscarried.

A GENERAL RETRIAL MUST BE ORDERED.

Counsel for the appellant urged that the matter should be returned for trial on the issue of damages alone. I cannot agree. It is clear from the reading of

the summing up by Downs DCJ that the issue of liability was hotly contested at the first trial. This Court has not seen the witnesses. It has no means of judging the issue on liability without that advantage. The verdict bespeaks a compromise that might have been affected by the jury's conclusions on liability. It is therefore appropriate that the matter should be remitted for retrial on all issues.

Counsel for the respondent urged that the Court, to bring this protracted litigation to a close, should proceed to give its own consideration to the assessment of the damages proper in the case. This beguiling and tempting

URJ ZELKOVIC v STATE RAIL AUTHORITY (Cole JA) 5

submission must be resisted. This Court has not seen the appellant give evidence. Indeed, it has not seen the appellant at all. The appellant is not at court today. The issues of damages, as well as the issues of liability, were contested at the first trial. In the nature of this case, this Court cannot assess the damages of the appellant. Counsel for the appellant was not, for his part, willing o agree to reassessment by the Court of Appeal. But, in any case, in my view, it would not have been appropriate.

Orders.

The orders which I therefore propose are:

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the judgment entered by Downs DCJ in the District Court including the order as to costs which followed the verdict of the jury herein;

4. Order that the proceedings be returned to the District Court for retrial on all issues;

5. Costs of the first trial to abide the outcome of the second trial.

6. Order that the respondent pay the appellant's costs of the appeal but have in respect thereof, if so qualified, a certificate under the Suitors Fund Act 1951; and

7.Direct that the appellant within two days file the notice of appeal in the form foreshadowed in the summons for leave to appeal which, for the reasons which I have just stated, it is appropriate for the Court to deal with now.

Meagher JA I reluctantly agree. The claimant ought to have a new trial, even though it is difficult to see the result of such a trial would be more than $5 or $10 greater than the verdict already obtained.

Cole JA I agree with the reasons of the President and the orders proposed. KIRBY P: The orders of the Court are as I have provided.

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the judgment entered by Downs DCJ in the District Court including the order as to costs which followed the verdict of the jury herein,

4. Order that the proceedings be returned to the District Court for retrial on

all issues;

Costs of the first trial to abide the outcome of the second trial;

6. Order that the respondent pay the appellant's costs of the appeal but have in respect thereof, if so qualified, a certificate under the Suitors Fund Act 1951; and

7. Direct that the appellant within two days file the notice of appeal in the form foreshadowed in the summons for leave to appeal.

wm

COUNSEL:

Claimant/Appellant: BS Robison Opponent/Respondent: DR Russell SOLICITORS:

Claimant/Appellant: D Stanefska and Associates

6 UNREPORTED JUDGMENTS

Opponent/Respondent: Creagh and Creagh