Australia Postal Commission v Griffiths, W
[1987] FCA 723
•15 Dec 1987
C A T C H W O R D S
Damaqes for Dersonal lnjury - challenqe to assessment of damaqes for whiplash lnjury resultlnq in fusion of cervlcal
spine at two levels - plalntiff ound to be totally
incaoacitated for work - award of $541,132.59 said to be
excessive - analysls of amounts included In the award for
loss of past and future earnlnq caoacity and for qeneral damaqes - amount, althouqh hiqh, not found to be excessive -
no question of princiole.
- Bresatz and Another v. Przibilla and Another (1962) 108 C.L.R. 541 at p.544
AUSTRALIAN POSTAL COMMISSION v. WARREN WILLIAM GORDON GRIFFITHS No. ACT G29 of 1987
Place: Canberra Date:
15 December 1987 Coram: Sheppard, Neaves and Miles JJ.
,
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY ) No. ACT G29 of 1987
| REGISTRY | DISTRICT | ) |
| \ | ||
| DIVISION | GENERAL | ) |
On ADDeal from the Supreme Court
of the Australian Capital Territory BETWEEN: AUSTRALIAN POSTAL COMMISSION
ApDellant
AND : WARREN WILLIAM GORDON GRIFFITHS
Respondent
JUDGES MAKING ORDER:: SHEPPARD, NEAVES AND MILES JJ. DATE OF ORDER: 1 5 DECEMBER 1987 WHERE MADE: CANBERRA MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The appeal be dismlssed. 2. The aDpellant pay the respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) \ AUSTRALIAN CAPITAL TERRITORY
) No. ACT G29 of 1987 DISTRICT REGISTRY 1 I
| DIVISION | GENERAL | ) |
On Appeal from the Supreme Court
of the Australian Capital Terrltory
BETWEEN: AUSTRALIAN POSTAL COMMISSION
Appellant
AND : WARREN WILLIAM GORDON GRIFFITHS
Respondent
CORAM: SHEPPARD, NEAVES and MILES JJ. - DATE : 15 DECEMBER 1987 REASONS FOR JUDGMENT
THE COURT: This is an appeal by the defendant, Australlan
Postal Commission, aqalnst an award of damaqes in the
Supreme Court of the Australian Capital Territory In favour of the plaintiff, Warren William Gordon Grlffiths.
A number of qrounds of appeal attackinq nearly every
component of the award of the learned trlal Judqe (Kelly J.)
appear in the notice of appeal. However, only three of these were Dressed at the hearinq of the appeal. They relate to past loss of earninq capaclty, future loss of earninq capacity and qeneral damaqes. A fourth qround of appeal was raised, relatinq to the award for loss of superannuation benefits but that part of the assessment was not the subject of any dispute at the trial and has not been
shown to be incorrect. There was no dlspute at the hearinq of the aapeal as
to any of the slqnificant findinqs of fact on the part of
the trial Judqe. The facts may therefore be slmply stated. The respondent plalntiff was born on 15 October 1951
and was thus aqed 28 at the time of hls injury on 8 January1979. He left school at the aqe of fifteen years and worked in a furniture store in Brisbane as a sales assistant. He contlnued to work In the furnlture sales industry over the ensuinq years, qenerally saendlnq about two years at a time in any one aosltlon. He worked his way up towards manaqerial level and acquired a Dialoma in Work Study and a Diploma in Medla Studies at technical colleqes In Brlsbane. He came to Canberra in 1976 and chanqed dlrectlon, temporarily worklnq for a flrm of llquor merchants. He was successful in that reqard and boosted the sales of the flrm durinq the six months OK so when he worked for It. He then
joined one of the prlnclaals of the flrm and went into a However, on two occasions fires destroyed the warehouses business venture wlth him concerned wlth retallinq beddinq. where the stock was held and on another occasion the
premises were flooded out. The company that controlled the
enterprise went into llquidation and the plalntiff finished
workinq for It by the end of 1978. By that tune he was
enqaqed to be married and It was whllst he was taking a
break from work Dendinq the marrlaqe that he recelved his Injury . The Injury was sustalned at about 1 1 .l5 a.m. on
8 January 1979 when the vehlcle driven by the plalntlff was
struck in the rear by a vehlcle owned and driven on behalf of the defendant. The plaintlff felt a jolt, heard a "SoKt of crack" in his neck, and felt paln In the neck area. Althouqh he was able to drlve to a nearby pollce statlon and
then drive himself home, pain in the neck perslsted and a headache developed. He took hmself to the Woden Valley Hospital later in the day where some medicatlon was
prescribed and he went home to bed. Next day he notlced pain in the lumbar reqlon In addition to the neck Rain and headache, but all paln had resolved wlthin a couple of days at that staqe.
Between January and July 1979 the plaintlff had Intermittent severe pain in the neck and shoulder blades and " up under the scalD" sufflclent for him to consult an unidentifled doctor. The lncldence and frequency of the paln is unclear. Durinq that RerlOd he married and took UD a manaqerlal Job with a flrm of furnlture removallsts but he resiqned after a few months after dlfferences wlth the
qeneral manaqer. He dld not obtain another position In employment until 24 September 1979.
It was durlnq thls period after July and when he was out of work that the lumbar pain aopears to have Increased, but it was not sufficlent to prevent hlm commenclnq work as a trainee real estate salesman wlth Jennlnqs Industries
Limited (Jenninqs) in late September 1979. It was sufficient for him to consult hls qeneral practltioner, DK Inqram, on 4 October 1979. He continued with Jennlnqs
for the rest of 1979 and into 1980. Durinq that time hls
condition deteriorated and he lost periods from work. He was referred to DK Robson, a Canberra neurosurqeon, who suqqested an operation which the Dlaintiff declined. The plaintiff was referred to a Melbourne orthopaedic surqeon, DK Crock, whom he first saw on 16 July 1980. Physlotherapy
was commenced at DK Crock's suqqestion. Medicatlon increased. Still the condition deterlorated and the plaintiff's capacity to carry out hls work declined. A number of admissions to hospltal in Melbourne under the care of Dr Crock followed - dlscoqraphy in November 1980, traction and further discoqraDhy In February 1981 and fuslon at two levels of the cervical wine on 30 March 1981. The
result of all that treatment aDpeared to be a further increase in symptoms. After beinq flown back to Canberra by ambulance on 16 April 1981, he was housebound for another month. The variety and intensity of medlcatlon increased and his condition continued to deteriorate. Between June 1981 and February or March 1982 DK Crock performed four
manipulations under qeneral anaesthetic in Melbourne. From the time of his commencement wlth Jenninqs untll March 1981, the plaintiff worked
only intermittently. From
the time of the operation in March 1981 untll February 1982
he was off work altoqether. Althouqh he returned to work at that staqe, his condition was worse than It had been.
Hls
medical problems qrew more complex. He began to have
urlnary incontinence and to suffer from constlpatlon and haemorrholds. In 1983 he started havlnq physlotherapy "between six and seven days a week". Deuresslon set In and he started seeinq a psychiatrlst. Desplte hrs problems, he
comDleted a course in real estate salesmanshlu at the Canberra Colleqe of Advanced Educatlon in 1983, althouqh hls Honour auoears to have concluded that the work of a real estate salesman has been too demandlnq for hls physlcal and mental condition.
His Honour expressed his flndlnqs on the curtallment of the plaintiff's qeneral loss of enjoyment of llfe as follows:
"Gardenlnq actlvitles cause him pain. He has a man come to mow the lawn once or twlce a week for which he pays $8-$15. He also employs somebody
to clean and pollsh his car. Walking (and runninq) and sittinq for lonq ueriods cause hlm difficulty as does drivlnq for any distance. Drivinq can cause so much pain that he cannot be
really alert. He has run once slnce the accident, a distance of 50 yards, and as a
consequence spent days in bed. He swims in a heated pool at Mrs. Daniell's home In Aranda but
is unable to swlm In an unheated pool. He dld
not swim before his condition deterlorated. He
used to enqaqe in ten-pin bowllnq. It is nowbeyond him because of consequent paln. Carrylnq
a brief case of books causes hlm difficulty." These flndinqs have not been challenqed and It was
clearly open to his Honour to make them. The defendant does not challenqe the flndlnq of hls Honour that there is a causal link between the accldent and the plalntlff's present physical and emotional conditlon. For that reason it 1s not necessary to canvass the medlcal
evldence in detail. His Honour accepted all the medlcal evldence called on behalf of the plaintlff and relected that of Dr Cassar called on behalf of the defendant. His Honour was clearly impressed with the evidence of Dr Crock, who was of the view that the plaintiff's physical problems arose from a combination of a deqenerative condition in the spine with an adverse immunoloqical reaction to surqical trauma. Dr Crock thouqht that the plaintiff would continue much as he was at the tune of hearinq for a period of a few years into the future, probably settlinq down to a point when he miqht be able to undertake the sort of work he had been doinq in real estate for about two hours a day. His
Honour accepted all the rest of the evidence that was favourable to the plaintiff relatinq to his urinary problems, constipation and depresslon to the effect that he still suffered from them at the time of the hearinq and would continue to suffer from them for an unspecified tlme into the future.
From all thls and on a consideration of all the
evidence his Honour concluded:
l '.... subject to one limitation, if that be the
correct word, to which I will advert later, the plaintiff is permanently disabled or, to put it in another way, unemployable."
The limitation to which his Honour referred was that the plaintiff, with his qualifications, was unlikely to remaln idle for the rest of his life, and that on the contrary he was likely after "an appropriate period" to
recover some capacity to earn. This continqency, the recovery of earninq capacity, was reflected in his Honour's dlscountinq the assessment of the value of future loss of earninq capacity by one third.
The damaqes awarded by his Honour were as follows: Loss of earninq capacity to date of trial $109,238.00
Future loss of earninq capacity $ 2 6 4 , 0 0 0 . 0 0 Loss of superannuation benefits $ 19,816.00 Physiotherapy expenses - 19 April 1985 to Auqust 1987 $ 11,666.00 Domestic assistance expenses $ 1 8 , 6 2 4 . 0 0 Future pharmaceutical expenses $ 6 , 0 0 0 . 0 0 Future medical expenses (qeneral mactitioner) $ 4 , 3 0 0 . 0 0 Future medical expenses (psychiatric) $ 2 , 5 0 0 . 0 0 Past out-of-pocket expenses
(includinq physiotherapy expenses
to 19 ADril 1 9 8 5 ) $ 3 9 , 9 8 8 . 5 9 Pain and sufferinq and loss of
enjoyment of life $ 65,000.00
$541,132.59
The award for past loss of earninq capacity was
attacked only on the qround that his Honour should have
reduced the sum awarded by a proportion which would take into account the continqencies that miqht have prevented the plaintiff earninq the sort of money that he had been earninq with Jenninqs in the nine months Drior to 30 June 1981 even
if the plaintiff had not been injured. Those earninqs accorded with the averaqe earninqs of real estate salesmen
workinq for Jenninqs. His Honour acknowledqed that unfavourable continqencies miqht be taken into account to
reduce the award for past loss of earnlnq caoaclty but he
deliberately chose not to reduce the flqure for that
reason. On the contrary, he considered the case to be one
where continqencles miqht equally be assessed as favourable
bearinq in mind what his Honour saw as the vlqour and enerqy
which the plaintiff had dlsplayed as a salesman in the
Past. That it was open to his Honour to take favourable
continqencles into account as a matter of law, 1s clear fromthe followinq oassaqe In the judqment of Wlndeyer J. In
Bresatz and Another v. Przlbilh and Another (1962) 1 0 8 C.L.R. 541 at p.544:
"I know of no reason for assuminq that everyone who is injured and rendered for a perlod unable to work would probably In any event have been for
a quarter of that Derlod out of work, or away
from work and UnDald. NO statlstlcs were
presented to justify this assumption. Moreover,the qeneralization, that there must be a "scalinq
down" for continqencies, seems mistaken. All
"continqencies" are not adverse: all
"vicissitudes" are not harmful. A particular plaintiff miqht have had DroSDects of chances of advancement and increasinqly remuneratlve employment. "
It was arqued on behalf of the defendant that hls Honour had qiven undue weiqht to favourable contlnqencles
and had not qiven proper welqht to those which suqqested
that the plaintiff miqht not have been an unquallfled success as a real estate salesman - in partlcular his prior failures in business, his history of qoinq from ]ob to job and a convlction for settinq fire to a vehlcle with Intent to defraud in April 1978. However, those are all matters referred to in his Honour's judqment and it is evldent that far from lqnorinq them, his Honour took them Into conslder-
ation. He had the advantaqe of seeinq the plalntlff and of formlnq his own lmpresslon of the plalntiff's personallty,
whlch was a relevant factor. It 1s true that In hls reasons for judqment his Honour dld not advert to some evldence that the plaintiff had suffered a prior nervous condltlon In 1978 and also from past neck problems, but that evldence is inconclusive. Whllst we would not necessarlly have come to
the same conclusion as his Honour on the questlon of dlscount for contlnqencies, we are not convlnced that he fell Into error in declinlnq to reduce the award for past economlc loss by reason of contlnqencies.
The amount awarded for past economlc loss was
$ 1 0 9 , 2 3 8 . It is not clear how this flqure was arrived at as a matter of arlthmetlc. The base fiqure of $ 1 5 , 7 5 0 per annum before tax was used (and not challenqed) and hls Honour said that he allowed for natlonal waqe Increases and for deductlon of tax at approprlate rates. The sum awarded has not been shown to be incorrect and we would not
interfere wlth thls component of the damaqes awarded. We turn now to the award for future loss of earninq capaclty. Aqaln it is not clear how the sum 1s arrlved at as a matter of arlthmetlc. His Honour said that he assumed that the plalntiff would have retlred at aqe 60 but the
Dosslblllty that he miqht have worked beyond hls 60th
blrthday was a favourable continqency to be taken Into account. His Honour also sald that after maklnq the same
-1 0-
allowances for future economlc loss as for past economlc
loss and with quidance of a report by an actuary he calculated future econornlc loss to the plalntlff's 60th birthday at $396,500. We have considered the report from the actuary. It makes reference to an after tax weekly loss of $418.24 and Puts the value at 22 April 1985 of a loss at that rate to the plaintiff's 60th blrthday at $383,944. If national waqe increases are taken into account to the date of judqment, then his Honour's calculatlon does not aDpear
to be incorrect.
In any event, his Honour did not allow the calculation to aqe 60 in full. As we have already lndlcated, he thouqht that the posslbillty of the plalntiff recoverlnq some earninq caaacity required the flqure to be discounted by one
third, that is to say, to $264,000. It was submltted that this method of aDDrOaCh was lncorrect and that what hls Honour should have done was to have allowed full loss of earnlnq capacity for a limited perlod, then substantlally discounted the fiqure for the remainder of the plaintlff's expected workinq life. We would aqree that such an
alternative approach was open, but we are not convlnced that it would have brouqht about a result so different to warrant interference. For instance, if the plaintlff were awarded the total loss for two or three years from the date of
ludqment and then half the loss for the remaininq years to
aqe 60, taklnq into account his Honour's vlew that theDlaintiff mlqht have worked beyond 60, the end fiqure would
not be so different that we should substltute our own calculation.
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Thirdly, it was submitted that the award for pain and sufferinq and loss of enjoyment of life of $65,000 was manifestly excessive. It was said for the defendant that the award was obviously too hiqh for a "simple whlplash Injury". However it is clear that each case depends upon
its own circumstances and that every Dlalntlff is entitled
to have his or her case declded accordlnqly. Indeed, counsel for the plaintiff suqqested that the sum was so low as to be unacceptable in the courts of New South Wales. In this reqard we would emphasise that we are hearlnq an appeal from the Supreme Court of the Australian Capital Territory and if a comparison is to be made with awards elsewhere in Australia, it is inappropriate to confine the exerclse to New South Wales. In our view the award for qeneral damaqes is hiqh, but we are not persuaded that it is manlfestly excessive.
The total sum of damaqes was $ 5 4 1 , 1 3 2 . 5 9 . As we have
said, the notice of appeal challenqed nearly every item maklnq up the total. Althouqh only three of them were the
subject of arqument at the hearinq of the apoeal, the
qeneral point was taken on behalf of the appellant that, looked at as a whole, the award of over half a million dollars to a man who could probably do at least some part-time work at some staqe in the future and who had had a chequered work history as well as some prior neck problems, was manifestly excessive. The arqument 1s not without
substance. We have looked at the award as a whole and we
- 1 2-
aqree that it is a hiqh one. Nevertheless, error on the part of the trial Judqe has not been shown. Apart from the
"llmltation" expressed as a discount for future loss of earninq capacity (and, we miqht add, a reduction of the amount claimed for physiotherapy) it seems that all the
flndinqs made by his Honour were favourable to the plaintiff. Those flndinqs were open to him and we are unable to say that the total is so hiqh that it calls for interference by this Court. The appeal will be dismissed with costs.
I certify that this and the eleven ( 1 1 ) precedinq
paqes are a true copy of the Reasons for Judqment herein of the Full Court consistinq of their Honours Mr. Justice Sheppard, Mr. Justice Neaves and Mr. Justice Miles.
Associate to Miles J.
Dated: 1 5 December 1987
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