Brambles (Aust) Ltd v Kenneth John Ives

NEW SOUTH WALES COURT OF APPEAL

CITATION: BRAMBLES (AUST) LTD v KENNETH JOHN IVES [2001] NSWCA 331 revised - 10/10/2001

FILE NUMBER(S):
CA 41047/00

HEARING DATE(S): 17/09/2001

JUDGMENT DATE: 17/09/2001

PARTIES:
BRAMBLES (AUST) LTD v KENNETH JOHN IVES

JUDGMENT OF: Ipp AJA Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5891/98

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
G.M. Watson / J.L. Fredman - Appellant
R.P. McLoughlin SC / M.J. Ward - Respondent

SOLICITORS:
Ebsworth & Ebsworth - Appellant
Ward Maxwell & Co - Respondent

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 41047/00
DC 5891/98
IPP AJA
SPERLING J
MONDAY, 17 SEPTEMBER, 2001

BRAMBLES (AUSTRALIA) LTD T/AS CLEANWAY MUNICIPAL SERVICES v KENNETH JOHN IVES
Judgment

IPP AJA: This is an appeal against an assessment of damages by Solomon DCJ. The respondent was the plaintiff in an action brought against the appellant as the defendant in respect of injuries he sustained in an industrial accident. The accident occurred on 15 August 1995 while the respondent was employed with the appellant. In consequence of the accident the respondent’s right hand became caught in the machinery conveyor belt and was seriously injured.
He suffered a crush injury of the right middle ring and little finger, a traumatic amputation of the tip of the right little finger, a compound fracture of the distal phalanx of the right ring finger, loss of a distal third of the distal phalanx of the right ring finger and he required an arthrodesis of the DIP joint.
The respondent now has an impaired use of his right hand. He has reduced grip and strength in that hand, has altered sensation to the fingertips and has pain in the fingers.
In addition, the respondent suffered psychiatric injuries. Solomon DCJ found that these resulted in the respondent suffering from a significant psychiatric disability.
His Honour’s findings in this regard were as follows:-
“I am satisfied that he suffers from significant psychiatric impairment as a result of this accident and that the condition ebbs and flows. The plaintiff was able to cope well prior to the accident despite his difficult and dysfunctional past. However, since the accident the plaintiff has had difficulty in maintaining his psychiatric equilibrium.
The plaintiff does not manifest any signs of malingering. I regard him as well motivated. The plaintiff will continue in my view to suffer from the psychiatric disabilities caused by this action into the future.
As a result of the psychiatric disabilities the plaintiff will have difficulty in obtaining and maintaining employment. Additionally, the plaintiff will have a reduced enjoyment of his life.”
The damages assessed by Solomon DCJ were as follows:-
Non-economic loss   $72,461.00
Out-of-pocket expenses   $19,794.37
Past economic loss   $79,551.00
Interest on past economic loss   $14,800.00
Fox and Wood component  $ 1,449.00
Future economic loss   $66,406.00
Future medical expenses            $ 4,000.00
Total    $258,461.37
The appellant challenges the assessments made in respect of all of these heads of damage, except for the out-of-pocket expenses.
The appellant’s main argument is reflected in the written submissions filed on its behalf, this argument, which underlies virtually all the grounds of appeal, is that there were matters “objectively proved which strongly militated against acceptance of the appellant’s case and which were either ignored or given no attention by the trial judge”.
The matters said to have been either ignored or given no weight fall into two broad categories. The first is the respondent’s personal history and circumstances. The second is the prior injury to the respondent’s right wrist which he sustained in 1994.
The respondent’s personal history was set out by Solomon DCJ in some detail. His Honour noted that the respondent was born on 3 July 1953 and had a dysfunctional childhood. He left school in year eight and became a street person. He had a number of jobs in Kings Cross and worked in strip clubs and brothels. During this period of his life the respondent was shot in the leg on one occasion and stabbed on three others. He also committed a number of minor offences.
His life appears to have changed in 1987 when he gained employment as a security guard with TNT. He worked successfully in that employment until 1993 when legislative changes required his employment to be terminated in the light of his past criminal record.
Nevertheless, his Honour found the respondent worked industriously thereafter and ran his own leather goods business and undertook courses to retrain. In April, 1994 the respondent commenced work as a labourer at some abattoirs.
Neither the physical nor the psychological injuries suffered by the respondent in 1994 prevented him from regaining employment in May, 1995 with the appellant.
After commencing work at the abattoirs in April, 1994 the respondent was arrested on cannabis related charges. He was sentenced to two years full time imprisonment by a magistrate. He appealed and the sentence was reduced to six months weekend detention.
This account of the respondent’s history and circumstances demonstrates that the learned judge had these matters well in mind and must be taken to have had proper regard to them.
The second matter said to have not properly been dealt with by the learned judge is the previous injury to the appellant’s right hand.
Again, Solomon DCJ made specific reference to this aspect of the case. He observed that on 15 August, 1994 the respondent suffered a crush injury to his right wrist and was admitted to hospital. The judge noted that the respondent did not have complications from the injury to the right wrist but, according to his Honour the respondent probably suffered from an undiagnosed post traumatic stress disorder.
The appellant contended that although Solomon DCJ made reference to the prior injury to the right wrist he did not properly take into account its consequences when assessing the damages flowing from the 1995 injury to the right hand.
The appellant submitted that the prior injury to the wrist was serious and referred to medical reports to this effect and in particular to a report which suggested that the prior injury caused a 25% permanent impairment of the right arm below the elbow.
The doctor who so assessed the impairment was Dr Berry and there were other doctors who testified to the effect that the respondent had indeed suffered a severe impairment to the right wrist in the 1994 accident.
On the other hand, there was medical evidence to the contrary effect. Dr McKessar, for example, concluded that the respondent did not have any loss of function due to the prior 1994 injury. Dr Egging said, with regard to the right wrist:-
“He has not the slightest difficulty demonstrating a full range of painless, active movement in his right wrist and his only complaint of pain in that site occurs during the movement of circumduction. I cannot find any signs of permanent impairment arising out of the injury of 15 August, 1994.”
Mr Watson, who appeared for the appellant, referred to evidence from Dr Jolly, a psychiatrist consulted by the respondent, from which it appeared that the respondent told Dr Jolly that after the 1994 accident he suffered from a chronic pain syndrome.
There is other evidence from which it appeared that after the 1994 accident and before the 1995 accident the respondent continued to suffer problems of a personal nature and these were exacerbated by him having to undergo weekend detention in consequence of the criminal conviction and the sentence imposed on appeal.
Plainly it was open to the learned judge to find that there were ongoing sequelae from the 1994 accident that would have had a serious and significant impact on any assessment of damages flowing from the 1995 accident.
There was, however, a considerable body of evidence on which his Honour was entitled to rely to the effect that the appellant had substantially recovered from the injury to his right wrist which he had sustained in 1994 and thereafter he was able to undertake work of a heavy nature with the appellant.
This was in fact the appellant’s own testimony, given at the trial, and this is an important feature when regard is had to the credibility findings made by Solomon DCJ. His Honour said:-
“The plaintiff gave lengthy evidence in these proceedings, he was a most impressive witness. The plaintiff made concessions in cross-examination. The plaintiff appeared to be true and frank in his evidence to the Court. I gained the impression that the plaintiff was attempting to answer all questions to the best of his ability. The plaintiff did not prevaricate in any way and I regard him as a witness of truth.”
The result of all of this is that there was evidence on which his Honour was entitled to rely to support the findings he made, namely, that the effects of the 1994 accident were minor and did not substantially impair the respondent’s way of life and ability to work.
Accordingly, in my opinion no justifiable criticism can be levelled at his Honour in regard to the way in which he dealt with the 1994 injury.
The first two grounds of appeal are based on the matters to which I have referred and in my opinion they cannot be sustained. The third ground of appeal is expressed in this way:-
“The trial judge erred in law in making an assessment pursuant to s 151G of the Workers Compensation Act 1987 which given the respondent’s background an the nature of the injuries suffered was grossly excessive.”
In my opinion, the medical testimony relating to the consequences of the injury in 1995 justified the findings made by his Honour.
Dr McKessar expressed the opinion that the respondent had permanent loss of use of his right hand resulting from the 1995 injury of the order of 16%. Dr Patrick thought that as a result of the 1995 injury the respondent had sustained permanent loss of 20 per cent of his use of the right hand. The physical injury to the hand can fairly be described as severe.
In addition, the psychiatric harm resulting from the 1995 injury must be taken into account. I have referred to the trial judge’s findings in this respect. His Honour regarded the psychiatric consequences as having been significant indeed and there is ample evidence to warrant this conclusion. The judge accepted the views of two psychiatrists and a psychologist who testified on the respondent’s behalf and he rejected the views of the appellant’s psychologist who was the sole witness who expressed different views. The findings as to the fundamental change that the psychiatric consequences brought about on the respondent’s life were perfectly open to his Honour.
In my opinion, when his Honour’s findings in regard to the physical harm are taken together with his findings in regard to the psychiatric harm, the award made by him based on damages of 33% of a most extreme case is justified and was within his Honour’s discretion. I would therefore dismiss this ground of appeal.
The fourth ground of appeal is that the judge erred in awarding any amounts for past or future economic loss and because of the excessive award of damages for non-economic loss.
In the light of the conclusion that I have already expressed in regard to the award of damages for non-economic loss this ground fails.
The fifth ground has been abandoned, as has ground 6A.
Ground 6B asserts that Solomon DCJ erred in the assessment of future economic loss by applying a standard discount of 15% for contingencies.
It is said that, given the work history, personal background and pre-existing injuries of the respondent a discount of 15% was too low.
In my opinion, however, in view of the factual findings made by Solomon DCJ there was no reason for his Honour to depart from the discount of 15% for contingencies and this ground fails.
Ground 7 is directed at the assessment of future medical expenses and was based on the same propositions as those to which I have previously referred, namely, the effect of the 1994 accident and other pre-existing problems.
In the light of the conclusions to which I have come this argument cannot be sustained.

The appellant also asserted that it was unlikely that the respondent would actually undergo any further medical treatment. This argument is based on the fact that a psychologist’s report obtained by the respondent for the purposes of the appeal against sentence recommended that he not be imprisoned because he needed more psychological counselling. Once the appeal succeeded and the penalty was reduced, the respondent stopped attending counselling.
It is implicit in the award made by the learned judge that he found that the respondent would incur the medical expenses that were the basis of the award. In my opinion his Honour was entitled to come to this conclusion. This ground in my view also fails.
In the circumstances I would dismiss the appeal with costs.
SPERLING J: I agree.

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LAST UPDATED: 10/10/2001

[2001] NSWCA 331

17 September 2001

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