Aerospace Engineering Services Pty Ltd v Ibrahim
[2007] WASCA 33
•12 FEBRUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AEROSPACE ENGINEERING SERVICES PTY LTD -v- IBRAHIM [2007] WASCA 33
CORAM: ROBERTS-SMITH JA
McLURE JA
PULLIN JA
HEARD: 5 DECEMBER 2006
DELIVERED : 12 FEBRUARY 2007
FILE NO/S: CACV 95 of 2005
BETWEEN: AEROSPACE ENGINEERING SERVICES PTY LTD
Appellant
AND
RAGAB MOUSA MOHAMED IBRAHIM
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MULLER DCJ
Citation :IBRAHIM -v- AEROSPACE ENGINEERING SERVICES PTY LTD [2005] WADC 129
File No :CIV 941 of 2002
Catchwords:
Tort - Negligence - Personal injuries - Challenge to findings - Assessment of damages - Turns on own facts
Legislation:
Occupational Safety and Health Regulations 1996 (WA), reg 3.55
Result:
Appeal and cross-appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P V Lansell
Respondent: Mr T H Offer
Solicitors:
Appellant: Jackson McDonald
Respondent: Peter J Griffin & Co
Case(s) referred to in judgment(s):
Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424
Clark v Kramer [1986] WAR 54
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Sibley v Kais (1967) 118 CLR 424
Tame v New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40
ROBERTS-SMITH JA: I agree with McLure JA.
McLURE JA: The appellant appeals from the judgment of Muller DCJ made on 12 July 2005 awarding the respondent damages for personal injuries he suffered in the course of his employment with the appellant. The respondent cross‑appeals against the assessment of damages.
The respondent was an aircraft engineer who worked for the appellant at its premises at Pearce Air Force Base. On 21 February 1998 the respondent fell from a moveable platform in the course of working on the tail section of an aircraft in the appellant's hangar. The respondent suffered minor physical injuries and developed what the medical experts described as "abnormal illness behaviour" with the result that there was no clinical cause for the duration and severity of the symptoms with which the respondent presented. There was a conflict between the evidence of the respondent and a co‑worker, Mr Mohd Nizam, as to the circumstances of the accident. The learned trial Judge preferred the evidence of Mr Nizam and found that the respondent fell backwards over the side of the platform. The trial Judge found that the appellant was negligent in failing to provide a safe system of work in requiring the respondent to operate from a platform without hand (or guard) rails.
For the purpose of assessing damages, the trial Judge found that (1) there was a significant element of conscious exaggeration of the respondent's overall condition; (2) the respondent failed to mitigate his loss by refusing to undertake rehabilitation; and (3) the respondent was totally incapacitated for work but if he had participated in rehabilitation there was a 50 per cent chance that he would have been able to return to his former position, albeit under supervision.
The trial Judge awarded the respondent the sum of $414,240.24 of which $17,500 was for general damages. There are four grounds of appeal. They are in substance that the trial Judge erred in:
(1)taking into account the area of the platform in determining foreseeability and negligence;
(2)finding that handrails would have prevented the fall;
(3)finding that the appellant was negligent in failing to install a handrail on the platform;
(4)failing to have "proper regard" to the expert evidence of Martin Simms in relation to the risk of handrails damaging an aircraft's fuselage.
There are also four grounds of cross‑appeal. They are in substance that the trial Judge erred in:
(1)failing to consider the extent to which the respondent's psychiatric state and injury conviction precluded the respondent from undertaking rehabilitation;
(2)finding that there was a 50 per cent chance that rehabilitation would have overcome the respondent's problems;
(3)failing to assess the degree to which the respondent would suffer a loss in the parameters of employment opportunities open to him;
(4)making an inadequate award for general damages.
Appeal ground 1
It was common cause at trial that the platform comprised three steps leading to a top level that was approximately 1.2 metres high, 970 mm long and 635 mm wide. There were two small wheels on the front uprights of the platform. The platform had no handrails on either side of the steps and no guard rails at the top level. The trial Judge found that the platform was intended to be a light weight moveable substitute for a step ladder.
The respondent's evidence of the circumstances of the accident was as follows. On the morning of the accident the platform was positioned behind the tail of an aircraft. The top level of the platform was level with or just below the horizontal stabiliser on the tail section of the aircraft. The respondent's task was to remove screws from panels on either side of the tail assembly. The panels in question were located on either side of the fuselage between the upright and horizontal stabilisers. This area was approximately 1.5 metres above ground level. In order to remove the screws the respondent said he knelt on his right knee on the top level of the platform with his left leg and knee in a raised and flexed position and his left foot resting on the platform itself. In this position the screws he had to remove were approximately between waist and shoulder height and he had to lean forward to remove them. He had done similar tasks about 10 to 20 times in the past in exactly the same way. After removing screws from the left side of the panel the respondent moved to the right side of the platform, adopted the same position and began removing screws from the right side of the panel. Having completed that task he said he stood up intending to move back to the left side of the panel in order to remove the remaining screws he had left in place to keep the panel intact. As he stood up he said he began to turn either to his left or right when his right foot slipped off the right edge of the platform and he fell onto the concrete floor of the hangar on the right side of the platform.
The respondent's account of where the platform was positioned and what he was doing was contradicted by Mr Nizam, a senior aircraft technician employed by the appellant. According to Mr Nizam, he and the respondent had been working together on that day performing a series of tasks and towards the end of their shift were directed to check the bolts attaching the rudder to the vertical stabiliser on a particular aircraft. The bolts were located approximately halfway up the rudder. He said he manoeuvred the mobile platform to a position at right angles to the tail cone on the right side of the aircraft's fuselage. He said he stood on the top level of the platform and began his inspection with the respondent standing behind him on the same level of the platform holding a spare part that might be needed. While inspecting the rudder Mr Nizam heard a thud and on turning around saw the respondent lying on his back on the ground. Mr Nizam was unable to say where on the ground the respondent was lying.
The trial Judge stated that the accounts given by the respondent and Mr Nizam were irreconcilable and that his task was to decide which version was the more probable, having regard to the demeanour of each witness and the inherent probabilities and improbabilities in the testimony they gave. I will return to those matters when considering ground of appeal 2. It is sufficient for present purposes to note that the trial Judge preferred the evidence of Mr Nizam to that of the respondent. He found that the respondent was standing behind Mr Nizam on the top level of the platform when he lost his footing and fell backwards over the side of the platform (not down the steps).
The trial Judge referred to evidence from the appellant's expert that the platform was too small for two workers to operate safely from it but continued:
"This was never pleaded by the [respondent] and I propose to ignore it completely."
However, the trial Judge took into account the size of the platform when considering whether the appellant had breached its duty of care to the respondent. After referring to the significant risk of injury from an uncontrolled fall onto a hard surface from a height of 1.2 metres, the trial Judge continued (at [32]):
"The likelihood of such a fall was increased by the relatively small area of the platform. If it was reasonably foreseeable that a person using the platform might fall off it while assisting in the work on an aircraft, as I have found it was, the next question I have to decide is what a reasonable employer would have done in response to that risk. Because the area of the platform was relatively small I believe the magnitude of the risk, and the degree of probability of its occurrence, were high." [emphasis added]
The appellant contends that the size of the platform as it relates to safety should not have been taken into account in assessing whether the appellant breached its duty of care to the respondent. The contention is without merit. There is a material difference between taking into account the size of the platform for the purpose of considering an unpleaded particular that the appellant was negligent in permitting two employees to work from the same level of the platform, and taking into account the size of the platform for the purpose of determining whether the appellant breached its duty in failing to provide handrails. The size of the platform is relevant to an assessment of whether the pleaded breach was established. I would dismiss ground 1.
Ground 2
The appellant contends that because the trial Judge rejected the respondent's account of how the accident occurred, there was no evidence to support the inference drawn by the trial Judge that the respondent fell backwards over the side of the platform rather than backwards down the steps. This is significant from the appellant's perspective because the appellant further contends there was no evidence that handrails would have prevented the accident if the respondent had fallen backwards down the steps.
The appellant's first contention depends upon the correctness of the assumption that the trial Judge rejected all the respondent's evidence as to the circumstances of the accident. I am not persuaded that assumption is correct. No adverse credibility finding was made against the respondent. To the contrary, the trial Judge said he was not unimpressed with the respondent as a witness and was unable to point to any particular flaw in his description of what occurred. However, for the detailed reasons given by the trial Judge, he preferred the evidence of Mr Nizam. To the extent there is a conflict between the respondent's evidence and that of Mr Nizam as to the circumstances of the accident, the trial Judge can be taken to have rejected the respondent's evidence. However, Mr Nizam did not see the respondent fall and did not remember where the respondent was lying after the fall. Thus, there was no direct conflict in the evidence on the point in issue. In any event, the trial Judge relied on the objective probabilities in drawing the inference that the respondent fell from the side of the platform. The trial Judge said (at [15]):
"Given Nizam's evidence that the [respondent] was standing behind him on the platform and that he heard a thud and looked down to see the [appellant] [sic] lying on his back on the ground the most probable inference is that the [respondent] lost his footing and fell backwards off the platform. There may be a question as to whether he fell off the side of the platform or backwards down the steps. I do not believe much turns on that although his position on the ground on his back is more consistent with his having fallen backwards over the side rather than backwards onto the steps and then onto the ground."
There was sufficient evidence to enable the trial Judge to draw the inference that the respondent fell from the side of the platform. I would dismiss ground 2.
Grounds 3 and 4
These grounds challenge the finding that the appellant breached its duty of care. The appellant contends that the trial Judge erred in finding that it should have installed a handrail having regard to the low height of the platform, the nature of the task being performed by the respondent and the risk of handrails damaging the fuselage of the aircraft.
The relevant legal principles were not in dispute. Liability in negligence is established if the appellant owed a duty of care to the respondent, it breached that duty and there was a causal connection between the damage sustained and the breach of duty (and the damage is not too remote from the breach): Tame v New South Wales (2002) 211 CLR 317 at [88]. Reasonable foreseeability of damage of the kind suffered is an element in establishing both the duty of care and its breach: Tame at [89].
An employer has a personal non‑delegable duty to take reasonable care for the safety of its employees: Kondis v State Transport Authority (1984) 154 CLR 672 at 687 ‑ 688 per Mason J. The duty encompasses an obligation to take reasonable steps to provide, inter alia, a safe system of work: Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424 at [34]. The employer's obligation in this respect includes taking steps to avoid foreseeable risks of injury that arise from the employee's own inadvertence and negligence: McLean v Tedman (1984) 155 CLR 306 at 311 ‑ 312. The appropriate means of discharging the employer's duty of reasonable care depends on the facts of each case.
The failure to eliminate a risk that is reasonably foreseeable and preventable is not necessarily negligence; the central question is whether a defendant's failure to eliminate the relevant risk shows a want of reasonable care: Tame v New South Wales at [98] ‑ [99] per McHugh J. That calls for a consideration of the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. This breach analysis is sometimes referred to as the "negligence calculus".
The appellant does not contend that the trial Judge erred in his identification and application of the relevant legal principles in reaching his finding that the appellant had breached its duty of care. Rather, the contention is that the finding of breach was not supported by the evidence. Much emphasis was placed on the height of the platform (1.2 metres) which was said to be well below the statutory requirements for the installation of a guard rail. That is a reference to reg 3.55 of the Occupational Safety and Health Regulations 1996 (WA) ("Regulations") made under the Occupational Safety and Health Act 1984 (WA). Part 3 Div 5 of the Regulations deals with the prevention of falls at workplaces. Regulation 3.55 provides in substance that an employer must ensure that edge protection is provided and kept in place whenever there is a risk that a person could fall two or more metres from the edge of, inter alia, a scaffold, fixed stair, landing or suspended slab at a workplace, or three or more metres from an edge other than those specified. The edge protection must comply with reg 3.55(5) which requires a guard rail system with a top rail positioned not less than 900 mm above the working surface that is capable of withstanding a force of 0.55 kN applied to any point of the guard rail system together with a mid rail and a toe board (or a toe board and a mesh panel).
Part 3 Div 7 of the Regulations deals with scaffolds and requires compliance with Australian Standard 1576, Pts 1 to 6. This standard also requires that edge protection be provided where a person or object could fall more than two metres.
There was a conflict of expert evidence on the subject of breach. Mr J Agpar, a consulting engineer called by the respondent, gave evidence that a simple and low cost solution to reduce the risk of a fall from the platform was the installation of handrails and that any resulting instability issues could be addressed by the addition of outriggers to the base of the platform and the attachment of stabiliser screw jacks. Mr M Simms, also a consulting engineer, was called by the appellant. His evidence was that handrails were not required by statutory regulations or existing Australian Standards and that such handrails could pose a risk of damage to the fuselage of small aircraft. According to Mr Simms, if correctly used the platform represented a more stable and comfortable work platform than a conventional step ladder or trestles and planks (both commonly used in the maintenance industry to gain access to raised work points) and would be safer than either of those. He considered that the risk of falling was low for an attentive and prudent worker and the risk of serious injury when falling onto an uncluttered workplace (such as the hangar) was also low.
The trial Judge found that a reasonable person in the appellant's position would have foreseen the risk of injury to a class of persons, including the respondent, using the platform for the intended purpose. He continued (at [32]):
"Although the platform was not particularly high an uncontrolled fall onto a hard surface from a height of 1.2 metres would clearly involve a significant risk of injury to the person involved. The likelihood of such a fall was increased by the relatively small area of the platform … [T]he next question I have to decide is what a reasonable employer would have done in response to that risk. Because the area of the platform was relatively small I believe the magnitude of the risk, and the degree of probability of its occurrence, were high. As against that I do not accept there would have been any unreasonable difficulties or expenses involved in addressing the problem by installing hand rails and, if necessary, adding two additional wheels to the bottom of the frame where the steps begin. Both engineering experts agreed that the installation of additional wheels would increase the stability of the platform and any instability or tendency to topple could, again on the evidence of both experts, have been counteracted by the use of outriggers and stabiliser screw jacks … Although no evidence was led as to the expense that would have been incurred in making these alterations I do not believe they would have been so great as to make such a solution impracticable. The reservations that the [appellant's] engineering expert had if such changes were made to the platform are, in my view, without foundation. The principal reservation Mr Simms seemed to have was that the installation of hand rails would prevent the platform from being inserted beneath the fuselage of an aircraft … [T]here was evidence that access to the underneath of the fuselage was possible if a person simply stood at ground level and reached upwards … [T]he photographs … show an aircraft in a jacked up position with the underside of the fuselage clearly accessible to a person standing at ground level. The other reservation Mr Simms had was the possibility of the rails of the platform coming into contact with the relatively fragile surface of the aircraft's fuselage and causing damage or even penetrating the fuselage skin. While this is always a possibility it could have been reasonably guarded against by the installation of cushioning on the hand rails or, as one witness suggested, simply by the exercise of proper care by those using the platform."
It was accepted by both parties that compliance or non‑compliance with a statutory safety standard is relevant to but not conclusive of whether a defendant has breached its duty of care (Sibley v Kais (1967) 118 CLR 424) the rationale being that such standards do not purport to fix a standard of reasonable care in all circumstances (Trindade and Cane, "The Law of Torts in Australia" 3rd ed at 456). For example, in this case the Regulations (and the Australian Standard) make no reference to the size of the relevant working platform, a factor which the trial Judge properly relied on to conclude that there was a significant risk of a fall. There was no challenge in the appeal to his further finding of a risk of significant injury from falling onto the concrete floor of the hangar.
I turn now to the possibility of damage to the fuselage. The appellant relied on the evidence of Mr Simms. However that evidence was equivocal as appears from the following exchange in cross‑examination:
"You have indicated … that in your view the potential damage, the potential risk of damage to the fuselage through handrails was sufficient to outweigh the risk of injury that would be avoided through the use of handrails. Is that right?‑‑‑That's probably taking the point I was making further than I intended it to go. Perhaps if I could explain my view on these things. I'm certainly not saying the platform shouldn't have handrails. What I'm saying is if there's a sound technical reason why you need to position a platform where the handrails would interfere with the aircraft, then it's reasonable not to have handrails.
Alright. Yes, I understand; so it's not a weighing up of the risk of injury against the handrail, it's simply that in some circumstances the handrails will inevitably cause damage because of the physicality of the aircraft and the ‑‑‑ ?‑‑‑The risk I suppose falls in two areas: there's the risk of damage to the aircraft and for somebody assessing the risk to someone using that implement there's two areas of risk assessment that are reasonable to do. All I was saying was that I don't personally view this platform, if it's accepted that it needs to be used in a situation where handrails would interfere, that I don't consider the platform to be sufficiently hazardous that it should never be used because it hasn't got handrails."
Mr Simms did not go so far as to say that, in the circumstances in which the platform was used in this case, the presence of handrails on the platform would give rise to an unacceptable risk of damage to the fuselage of the aircraft. Further, the evidence established that the appellant had higher mobile platforms with handrails which tends to undermine the appellant's contention that the risk of damage should have been accorded greater weight.
I am not satisfied that the height of the platform or the risk of damage to the aircraft invalidates the trial Judge's judgment that the appellant had breached its duty. I would dismiss grounds 3 and 4.
Cross‑appeal ground 1
The respondent challenges the trial Judge's finding that he unreasonably refused to undergo rehabilitation on the ground that the trial Judge "failed to consider the extent to which the Respondent's … psychiatric state and injury conviction precluded him from undertaking such rehabilitation".
The trial Judge found that the respondent refused to undergo rehabilitation in March 2000. He described the evidence as overwhelming and the finding is not challenged. He continued (at [81]):
"The [respondent's] pleading that his ongoing symptoms precluded him from undertaking rehabilitation has certainly not been established on the evidence. He certainly understood what had been arranged and what was required of him. The book of reports and correspondence generated by the proposed rehabilitation provider (Advanced Personnel Management) shows only too clearly the lengths to which the rehabilitation provider went to try to get the [respondent] to cooperate. The [respondent's] understanding of what was involved is also illustrated by his own correspondence with the rehabilitation provider … when he declined to keep an appointment but undertook to arrange an alternative appointment, requested the presence of an Arabic interpreter and advised the rehabilitation provider that he would bring another person with him and a recording device.
In the light of this evidence I have absolutely no hesitation in finding that the [respondent's] refusal to undergo rehabilitation in 2000 was unreasonable."
It is the case that the trial Judge does not in these passages address whether the respondent's psychiatric state precluded him from undertaking rehabilitation. However, the reasons must be read in their broader context. It is clear that the trial Judge accepted the evidence of Dr Lawrence Terace (a psychiatrist) as to the nature, effect and consequences of the respondent's psychiatric and psychological condition. It was not contended that the trial Judge erred in accepting Dr Terace's evidence. The trial Judge said (at [72]):
"[T]he preponderance of the medical evidence favours a finding of a genuine psychological disorder containing a significant element of conscious exaggeration. I have come to this conclusion, not only because I was favourably impressed by the evidence of Dr Terace on this point, but, equally as important, by the inconsistencies described by the other medical practitioners in the [respondent's] presentation and the explanations he gave them for his condition."
As noted by the trial Judge in his reasons, Dr Terace did not consider the respondent's psychological symptoms to be so severe as to preclude him from engaging in a rehabilitation programme and while Dr Terace was unable to say why the respondent avoided participating in the rehabilitation programmes he stated that it was definitely not the symptom or product of his psychiatric condition. Any conflicting medical evidence to the effect that the respondent's symptoms were entirely involuntary with no element of conscious exaggeration was based on the rejected medical evidence of Drs Ng, Harper and Salmon. I am not persuaded that the trial Judge failed to consider the extent to which the respondent's psychiatric condition precluded him from undertaking rehabilitation. I would dismiss ground 1.
Ground 2
Having found that the respondent's refusal to undergo rehabilitation was unreasonable, the trial Judge went on to consider the consequences of the respondent's failure to mitigate. That involved an assessment of the prospects of success of the rehabilitation programme. The trial Judge approached the matter by making an assessment based on the respondent's condition as at the date of trial discounted for the opportunity lost by his refusal to take advantage of the rehabilitation programmes available to him. He found that at the date of trial the respondent was totally incapacitated for any type of work and continued (at [90]):
"In assessing the chance he lost in not undergoing rehabilitation I believe I should be guided by the evidence of Dr Salmon who was the only witness prepared to quantify that loss. In Dr Salmon's opinion there was no more than a 50 per cent chance that the [respondent], had he undergone rehabilitation, would successfully have overcome his problems sufficiently to undertake some form of gainful employment. With this evidence in mind I would assess the chance of a successful return to work, had the [respondent] participated in rehabilitation, at approximately 50 per cent. Even then he may not have been able to return to his pre-accident employment and might have been required to take on a lesser paid position. But Dr Terace, whose evidence I have relied on, believed he could have returned to his former position albeit under supervision."
The respondent contended the trial Judge erred in failing to have regard to the fact that Dr Salmon's opinion as to the prospects of success of rehabilitation was based on the assumption that the respondent's psychiatric condition was successfully addressed. There is no basis for this contention. At par 87 the trial Judge summarised Dr Salmon's evidence including the qualification to which the respondent refers. However, in Dr Salmon's opinion there was no conscious exaggeration by the respondent of his symptoms which were all involuntary. The trial Judge clearly had that in mind in relation to the qualification because he continued (at [88]):
"Given my finding that only part of the [respondent's] perception of pain was involuntary, and that there was a significant component of conscious exaggeration, I am satisfied it is more probable than not that early rehabilitation would have equipped him to return to some form of gainful employment."
I would dismiss ground 2.
Ground 3
The respondent contends the trial Judge erred in failing to assess the degree to which the respondent would lose employment opportunities in the event that rehabilitation was successful. It is clear from par 90 quoted above that the trial Judge was mindful of these issues but accepted the evidence of Dr Terace. I would dismiss ground 3.
Ground 4
This is a challenge to the award of general damages. On this subject the trial Judge said (at [99]):
"I have already found there is a significant degree of exaggeration in the [respondent's] claims. On the medical evidence available I am satisfied the physical injuries he sustained in the accident could not possibly account for his condition as he now claims it to be. I do accept, of course, that part of his perception of pain is genuine. On the evidence before me I am unable to quantify what proportion of the [respondent's] symptoms are genuine. Had I been satisfied his claim was entirely genuine I would have awarded him an amount of $35,000 as compensation for his pain, suffering and loss of amenities. Consistently with the approach I have adopted in relation to other heads of damage I propose to discount this amount by 50 per cent to reflect my finding that there is a significant component of conscious exaggeration in both his presentation and description of his current symptoms."
The respondent does not quarrel with the deduction of 50 per cent for conscious exaggeration. However he says the starting point of $35,000 was inadequate.
The relevant authorities are not in dispute. The High Court has determined that in deciding whether or not an award of general damages is manifestly excessive or inadequate, the Court should not seek out and measure it against a normal standard from the decided cases: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124. However, the Court seeks to ensure the award is proportionate to the particular injuries received by the relevant plaintiff and the disability caused by those injuries in light of current ideas of fairness and moderation which emerge from the decided cases generally: Planet Fisheries at 125; Clark v Kramer [1986] WAR 54 at 60.
The trial Judge summarised the respondent's claims as to the consequences of his disability. Those claims included lower, middle and upper back pain extending to his arms legs and feet, severe headaches and loss of powers of concentration. As a result of those symptoms he claimed he spent most of his day in bed, had stopped visiting friends and abandoned previous sporting pursuits. The trial Judge continued (at [98]):
"He also said in evidence that before the accident he had intended bringing his family to Australia but has had to abandon those plans because his wife's application to enter the country has been rejected on the grounds that he is no longer working. Because of his inability to sit, stand or walk without pain or discomfort, and the significant deterioration in his powers of concentration due to his headaches, the [respondent] claimed that he was unable to undertake further studies to improve his employment prospects."
It is clear the trial Judge did not accept the respondent's claims, having already found that there was a significant degree of exaggeration to the respondent's symptoms. If that was the only discount to which regard should have been had, there may have been some merit in the respondent's contention that the starting point of $35,000 was unreasonable. However, the trial Judge did not expressly refer to or discount the award for the consequences of the respondent's failure to engage in rehabilitation which the trial Judge found would have produced a 50 per cent chance of a successful return to work. The trial Judge erred in failing to discount the award of general damages for the respondent's failure to mitigate.
In order to interfere with the award of general damages, this Court must be satisfied that the amount awarded is outside the range of a sound discretionary assessment. Having regard to the trial Judge's failure to
discount the general damages for the respondent's failure to mitigate his loss, I am not persuaded that the amount awarded is outside the appropriate range. Accordingly, I would dismiss ground 4.
For these reasons, I would dismiss the appeal and the cross‑appeal.
PULLIN JA: I agree with the reasons of McLure JA.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AEROSPACE ENGINEERING SERVICES PTY LTD -v- IBRAHIM [2007] WASCA 33 (S)
CORAM: ROBERTS-SMITH JA
McLURE JA
PULLIN JA
HEARD: 5 DECEMBER 2006
DELIVERED : 12 FEBRUARY 2007
SUPPLEMENTARY
DECISION :2 MARCH 2007
FILE NO/S: CACV 95 of 2005
BETWEEN: AEROSPACE ENGINEERING SERVICES PTY LTD
Appellant
AND
RAGAB MOUSA MOHAMED IBRAHIM
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MULLER DCJ
Citation :IBRAHIM -v- AEROSPACE ENGINEERING SERVICES PTY LTD [2005] WADC 129
File No :CIV 941 of 2002
Catchwords:
Costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 24A
Result:
The respondent pay the appellant's costs of the appeal and crossappeal after 1 December 2005 to be taxed
Category: B
Representation:
Counsel:
Appellant: Mr P V Lansell
Respondent: Mr T H Offer
Solicitors:
Appellant: Jackson McDonald
Respondent: Peter J Griffin & Co
Case(s) referred to in judgment(s):
Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
JUDGMENT OF THE COURT: These reasons relate to the costs of the appeal and cross‑appeal in Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33.
On 12 February 2007 the Court ordered that the appeal and cross‑appeal be dismissed. The appellant sought an order that the respondent pay the appellant's costs of the appeal and cross‑appeal incurred after 1 December 2005 to be taxed. The appellant relied on a letter dated 1 December 2005 to the respondent marked "without prejudice save as to costs", offering to settle the appeal and cross‑appeal on the basis that:
"(a)our client will pay to you the judgment debt ($414,240.24) less statutory compensation paid to date ($86,485.24) and less amounts owing to the Health Insurance Commission and Centrelink (not known exactly but likely to exceed $60,000);
(b) …
(c)upon acceptance of our client's offer … above, you will sign a consent notice agreeing to the appeal and your cross‑appeal being dismissed with no order as to costs."
It was agreed by the parties that, unless the Court made a costs order based on the offer of 1 December 2005, the appropriate order in the appeal and cross‑appeal would be that there be no order as to costs.
The respondent opposes the costs order sought by the appellant on the ground that the appellant's offer referred only to the judgment debt and made no express provision for the respondent's entitlement to post judgment interest on the judgment debt. Judgment was entered on 12 July 2005 and the offer was communicated to the respondent on 1 December 2005. There is no evidence of any express response from the respondent to the offer. We infer that the omission to include the respondent's statutory entitlement to interest would not have been an impediment to settlement if that matter had been raised by the respondent with the appellant. We are not satisfied that the appellant's omission to include the statutory entitlement to interest on the judgment sum played any part in the respondent's failure to accept the offer.
The policy of this Court, as reflected in O 24A of the Rules of the Supreme Court 1971 (WA), is to encourage a party to whom a fair and reasonable offer of compromise has been made to accept the offer and bring the appeal to an end. This Court is concerned with substance rather than technical matters that constitute no real impediment to settlement. Accordingly, we order that the respondent pay the appellant's costs of the appeal and the cross‑appeal incurred after 1 December 2005 to be taxed.
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Limitation Periods
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Costs
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Admissibility of Evidence
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Compensatory Damages
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