Brian Herbert Medlin v State Government Insurance Commission No. SCGRG 89/1237 Judgment No. 3933 Number of Pages 4 Negligence

[1993] SASC 3933

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(3) JJ

CWDS
Negligence - road accident cases - Appellant injured in motor bike accident - question whether accident sole cause of early retirement due to injuries - appellant shewed no loss of earning capacity arising from the accident. Valaridis v Scott (1975) 68 LSJS 60, considered.

HRNG ADELAIDE, 5 April 1993 #DATE 12:5:1993
Counsel for appellant:     Mr Robert Cameron
Solicitors for appellant:    Paul Kirk Roberts and Co
Counsel for respondent:     Mr T Forrest
Solicitors for respondent: Stratford and Co

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J The appellant was the Foundation Professor of Philosophy at the Flinders University of South Australia, having been appointed in 1967: he was head of the Discipline of Philosophy at the University. 2. On the 31 December 1983, then just 56 years old, he was injured when riding his motor bike with side-car. The worst injuries were to his right hip and to his pelvis. Although the appellant spent six weeks in hospital after the accident he was able to resume teaching at the University in March 1984. 3. Debelle J, having found the driver of the other vehicle wholly to blame for the accident went on to assess damages. He awarded to the appellant $77 517 including interest. The appellant complains because the learned Trial Judge made no allowance for loss of earning capacity, past or future. The omission is the only matter under appeal. 4. For some years before New Years Eve 1983 the appellant had had bad health. In 1977 he quite seriously hurt his back and the results of that injury lingered: he also suffered from depression. As a result he had asked the University to relieve him of his administrative duties and in several years, including 1983 that was done. 5. After the accident he again asked to be relieved of administrative duties and resumed them apparently only in 1987. He taught in 1984 but described the year as "horrendous". In subsequent years he continued to teach but was not at all satisfied with his standard of performance. On 30 June 1988 he retired under an early retirement scheme. As a rule a professor does not retire until he is 65: in the appellant's case that would have been on 10 December 1992. 6. The appellant received a lump sum on retirement and enjoys as well a small annual pension: the pension would have been much larger had he not retired until he was 65. 7. The issue is whether the appellant retired because of the injuries caused in the accident or for other reasons. The learned judge found that it was for other reasons:- " While there can be little doubt that the plaintiff was continuing to suffer from chronic pain" (caused by his injuries in the accident), "I do not think that was the pre-eminent reason for the plaintiff choosing to take advantage of the University's early retirement scheme. As he himself says, he was still able to do the tasks required as head of the Discipline of Philosophy. He acknowledged that he was still a competent teacher. He said that he could still perform the administrative tasks required. He said that he found the routine duties of head of discipline easy enough to handle." 8. The appellant, in what Mr Cameron described as a "seminal passage" had explained his reasons for retirement in this way:-
    " ....before I discussed this matter with Professor
    Abrahamson" (the Acting Vice-Chancellor) "........... I
    consulted Mr Hayes" (his treating orthopaedic surgeon)" and I
    said to him that I was suffering constant pain from the hip
    joint, that in fact it was disordering my life in such a way
    that I felt that unless I did something about it that I couldn't
    continue in my work. I asked Mr Hayes at that time if he could
    perhaps get me into a pain clinic, and this was a rather
    desperate move on my part because I didn't want to be hanging
    around doctors, but I asked him if he could do this and his
    reply was that he would rather I retired on invalidity because
    this would give me space to back off when I was in trouble
    because of pain and space to work at my own rate when I could
and not when I couldn't.
    Q. Did you endeavour to continue right through 1987.
    A. I did continue right through 1987 but after this
    conversation with Mr Hayes, I had pretty well decided that I
    simply had to get out and that is why I wrote in May in those
    terms to Professor Abrahamson,but I continued right through
    1987." 9. Mr Cameron argued strongly that this shewed the reasonableness of the appellant's decision to retire. 10. On two grounds I cannot accept Mr Cameron's argument and believe the learned judge to have been quite right. 11. First, there is no evidence that the appellant could not have continued in his position as Professor of Philosophy and head of the Discipline until he reached the normal retiring age. In a letter in 1987 to the Acting Vice Chancellor, seeking early retirement the appellant wrote:
    " I now know that I cannot do my job properly. I believe that I
    could manage to do it well enough to make it impossible for the
    University to sack me. I cannot, however, do it as well as I
    require of myself, nor as well as the University has a right to
    expect. .......... I wish to make it quite clear that I am no
    longer subject to the anxieties that made me wish to relinquish
    the headship of the Discipline of Philosophy in 1982. I am now
    in good spirits, in excellent general health, and find the
    routine duties of head of discipline easy enough to handle." 12. The appellant, from the evidence, set a high standard for himself and I accept that he genuinely believed that he could no longer attain it. What he wrote in the letter which I have quoted confirms that. Mr Cameron contended that Mr Michael Hayes, the eminent orthopaedic surgeon, supported the appellant's decision. Certainly Mr Hayes said this at the end of his evidence-in-chief:-
    "Q. Did you advise him at that stage that rather than look at
    treatment along those lines it would be better for him to
    retire.
    A. Yes, I think that there is no doubt Professor Medlin was a
    very fit person but he was getting a lot of symptoms which were
irritating him and interfering with his ability to work." 13. Yet that is not direct advice to retire - only that retirement was preferable to going to a pain clinic. It appears that Mr Hayes' advice strengthened the appellant's decision to retire but it was not sufficient, of itself, to justify retirement. Even if it were, the learned judge did not have to accept the opinion as sufficient to prove the appellant's case. 14. During his argument we put to Mr Cameron that there was no evidence of the attitude of the University regarding the appellant's capacity or incapacity. He answered that Mr Greg O'Hair, Reader in Philosophy and a close long-time friend of the appellant had given evidence about that. So he did but what Mr O'Hair said was his personal opinion: it cannot be taken to be the attitude of the University. 15. Dr G D Wright, Director of the Health and Counselling Service of the University examined the appellant on several occasions. 16. The appellant had a high opinion of Dr Wright. In one of his letters to the University he wrote:- " I have found my discussions with Graham Wright pleasant and I think I am clearer-minded as a result of them. (It is not often that one has the delight of dealing with someone who is such a credit to his profession.)" 17. Dr Wright finished his letter of 1 November 1984 to the Vice Chancellor:- " I would like to add my opinion to others that it would be quite contrary to his interests to encourage him to consider retirement on medical grounds." 18. More significantly, on 7 March 1988 he wrote:- " ...Professor Medlin suffers from chronic pain which is caused at least in part and possibly wholly by skeletal injury. The university continues to provide many frustrations for him that may serve to amplify his pain experience. There is no evidence that he is unable to perform his duties to the satisfaction of the university." 19. Dr Wright's various letters were admitted in evidence by consent. He did not give evidence. Mr Cameron referred in his Outline of Argument to what Bray CJ said in Valaridis v Scott (1975) 68 LSJS 60 - that it is desirable for medical men to give oral evidence rather than that their reports simply be tendered. Perhaps sometimes - but once a report is tendered it is evidence for all purposes and may be used by the Court as if the writer had given the evidence orally. The learned judge was entitled to have regard to Dr Wright's opinion. 20. Had the appellant continued in his position until December 1992 as he apparently could have done then he would have suffered no loss of earning capacity. The decision to retire early was his and not that of the University: the University merely accepted the appellant's application for early retirement: it did not initiate the retirement. 21. The second ground I have for believing the learned judge to have been correct is this. A little later in the letter seeking the retirement from which I have already quoted, the appellant said:-
    " My main immediate problem is that I cannot combine research
    with teaching. I am teaching competently enough, though I think
    not brilliantly. Competently enough from day to day and on the
    questionable assumption that we are teaching competent students.
    This uses up all the energy I have available. Non-teaching
    periods of the year are mostly consumed by teaching - either
    preparation or recovery. At the same time, I feel that I am
    entering on the most creative period of my life. (I have some
    evidence for this view which is independent of my own judgment.)
    If I fail to take full advantage of that in the next five years,
    then the last ten years, and the salary paid me during them,
    will have been largely wasted." 22. The learned Trial Judge found:-
    " The pre-eminent reason why the plaintiff decided to retire
    early was to be able to devote as much time as possible to
    research and creative philosophy untroubled by the requirements
    of University life and in particular the administrative and
    teaching duties required of him. He wished to be able to devote
    as much time as possible to research in the next five years so
    that he could make the best use of what he perceived to be the
    most creative period of his life." 23. Based upon the appellant's own letter the finding is entirely justified. 24. The appellant's retirement was not because of the injuries sustained in the accident on 31 December 1983. It was for other reasons. The appellant has shewn no loss of earning capacity as a result of the accident. The learned judge was quite correct in not awarding damages for past or future loss of earning capacity. 25. Despite Mr Cameron's full, careful and forceful argument, I suggest that the appeal be dismissed.

JUDGE2 MOHR J I agree with Millhouse J on this matter.

JUDGE3 BOLLEN J I agree.