Broers, Richard v Misossiou, Peter
[1984] FCA 413
•06 DECEMBER 1984
Re: RICHARD BROERS and HANS HOOGVLIET
And: PETER MISOSSIOU
No. ACT G 330 of 1984
Damages
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.
Morling J.
Everett J.
CATCHWORDS
Damages - personal injury - assessment - appeal - damage to cervical discs - builder's labourer - incapacity for heavy work - capacity for light work unaffected - economic loss - scarcity of work for builder's labourers - award for economic loss excessive - general damages not excessive - appeal allowed
HEARING
SYDNEY
#DATE 6:12:1984
ORDER
Appeal allowed.
Order of Kelly J. varied by substituting for the amount of the judgment the sum of $144,019.55.
Respondent to pay appellants' costs.
Respondent to have a certificate under the Federal Proceedings (Costs) Act 1981.
JUDGE1
This is an appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory in an action in which his Honour gave judgment for Peter Misossiou (the respondent) against the appellants for the sum of $174,019.55. The proceedings before the Supreme Court were by way of assessment of damages in respect of injuries received by the respondent as a result of the negligence of the appellants, against whom interlocutory judgment had been entered.
The respondent was injured on 8 November 1979 when the car in which he was travelling was struck by vehicles driven by the appellants. The respondent was born on 2 May 1932 in Macedonia. He did not receive any secondary education nor did he qualify for any trade. He arrived in Australia in 1960 and in 1970 he moved with his family to Canberra. Thereafter he had a number of jobs. For about three years he was employed in a grocery store but then left to work as a labourer with a plumbing firm. He worked with that firm from July 1978 to 26 February 1979 and thereafter was unemployed until 22 June 1979 when he obtained work for a brief period with the plumbing firm for which he had worked previously. On 23 July 1979 he commenced work with John Collet Constructions Pty Limited and he remained with that company until 26 June 1980. His work included fixing concrete, fixing steel, erecting scaffolding, carrying materials for bricklayers and carpenters and doing jackhammer work.
The injuries which the respondent suffered in the accident are referred to in considerable detail in the trial judge's careful judgment. It is sufficient for present purposes that we make a brief reference to them, because neither party sought to challenge his Honour's findings in respect of them. At the time of the accident the respondent experienced pain in his neck. Subsequently he also experienced frontal headaches. He said the pain was continuous and worsened over the ensuing three months. He sought medical attention but continued to work. He continued to work as a builder's labourer from the date of the accident until 26 June 1980. He was given notice by his employer about a week before that date, not because of his injuries but because of non-availability of work.
The respondent was operated on by Dr Robson on 31 July 1980 for fusion of cervical discs. He experienced some relief from his symptoms for about a month after the operation but thereafter said he started to get headaches and pain in his neck. Dr Robson was of the view that solid union had been attained at the site of the surgery. Nevertheless the respondent continued to complain of symptoms. In a report on 9 March 1981 Dr Robson said:
"I am afraid my views are perfectly clear on this matter and those views are that he is not within reach of any conventional forms of treatment at the moment. I do not consider he will feel better or will be better until all possibilities of legal redress are removed, and he is back on his own.
I do consider that the proper treatment for him is not medical at all but is legal and consist(s) in the most immediate settlement possible of all legal matters.
After this there is some probability that he will improve but until that point is reached there is no possibility whatever in my opinion.
I think one can only say that he is unable to work, but I find it difficult myself to accept that he is unable to work on any grounds except functional ones."
The respondent continued to complain of pain at the back of the neck radiating to the occipital region. He had severe occipital headaches daily and claimed that he was rarely free from pain, in spite of medication. On 29 July 1982, following conservative treatment, Dr Newcombe performed micro-surgical disc excision at the C4 - 5 level of the neck and found soft degenerate disc tissue extending into the spinal canal. The earlier post-operative course was promising but on 3 September 1982 the respondent again experienced neck pain. On 10 September 1982 Dr Newcombe expressed the opinion that the respondent was precluded by his injury from the work of a labourer.
Thereafter the respondent continued to complain of his disabilities. Apparently there was no improvement in his condition. The trial judge was of the view that the respondent's physical condition co-existed with a functional condition.
The appellants arranged for films of the respondent's activities to be taken at various times. When shown these films Dr Mann, who had furnished reports in respect of the respondent's condition, said:
"He has much more mobility and moves more freely in those films than he showed me he was able to do in my consulting rooms."
The trial judge said that the existence of the films and the respondent's answers to questions concerning the subject matter made it impossible for him to accept him on many matters.
Dr Mann was of the opinion that the respondent was capable of light work, although he had informed the doctor that he could not work. As to the respondent's ability to perform labouring work, Dr Mann said:
"If someone were to ask me, 'Do you think it is wise for Mr. Misossiou to work as a builders labourer now?' I would say, 'No'. I would say it was most unwise for him to undertake that work for the reason that he has a number of joints in his neck fused and other joints are going to have to do more work, they are already diseased. If I were an insurance company advising an employer whether or not to employ this man I would say, 'If you employ him I will think of asking you to get another insurer'. So there is a hazard there, not only for the worker who might stumble on a brick and wrench his neck in a way which an ordinary person would not think twice of which could be a calamity to Mr. Misossiou, and for his employer, and for the insurance company at that time."
The learned trial judge expressed himself as being satisfied on all the evidence that the respondent was no longer able to perform the heavy work of a builder's labourer. He was also satisfied that he was physically capable of doing light work. Neither of these findings was challenged before us.
The respondent gave evidence that he experienced much pain in his lumbar spine. There was evidence that the respondent did, in fact, suffer from degenerative changes in his lumbar spine, but the first occasion when he complained about this condition was in February 1983. Of the lumbar spine condition, his Honour said:
"I have taken into account the lumbar condition from which he is now suffering, a condition which I am unable to attribute to the accident but which is due to the manifestations of symptoms from his degenerating lumbar spine. However, I do not think that the lower back pain from which he suffers would have proved disabling. On this I accept the opinion advanced by Dr. Newcombe."
This finding was challenged by counsel for the appellants who submitted that, on the evidence, there should have been a finding that the respondent's low back pain was in fact disabling. The difficulty about this submission is that the trial judge had the considerable benefit, which we do not have, of seeing and hearing the respondent in the witness box. He viewed films of the respondent's activities which we have not seen. These films were available to be viewed on the hearing of the appeal. We did not find it necessary to see them. It was common ground between counsel that they would undoubtedly show that the respondent was capable of performing a variety of work.
Nevertheless, whilst the trial judge found that the low back pain would not have proved disabling to the respondent up to the time of judgment, he said that it was proper to take into account that he had a degenerative spinal condition which predated the accident. He said that it was possible that some other incident might have caused symptoms which could have rendered him incapable of working. He said he took this into account as a possibility and not as a probability and that it was a contingency which must be regarded as unfavourable.
Since the question of the availability of work to the respondent in the future had he not been injured is a matter of central importance to the appeal, we should make reference to some of the more important evidence on this question. Some of the respondent's former employers gave evidence. One of them said that "there was not all that much work around" as at June 1980 when the respondent was retrenched, but that he was of the opinion that the respondent could have found some employment. Another former employer said that there was a downturn in the building industry in 1980 and that there had been a problem of availability of work in the building industry ever since. He gave the following evidence:
"Now, you would agree with me that if a labourer came to you with a bad lower back, you would not employ him, would you, with low back problems?---No, not in our game, no.
It is too heavy to have a man with any low back problems, is not it,---That is right.
And also I think it is true to say that younger men, unfortunately, are given preference for heavy work?---It all depends. Sometimes we get more work out of older men than the younger men. That is my personal belief.
But, there are not too many builders labourers of 65 about, are there?---No.
Not too many builders labourers of 60 about either, are there?---No.
They tend to end in that occuption in their early fifties, do not they?---I would say so, yes."
Another witness said that over the three or four years prior to the trial he had employed labourers for periods of a few weeks and then terminated their employment because of non-availability of work. He agreed that "generally speaking" work was "pretty tight in the A.C.T., not only for labourers, and also that there was a lot of competition for the few available jobs.
However, it should be said that there was other evidence that the respondent was a good worker before the accident and opinions were expressed by people who knew him that he would always be able to find a job in Canberra. His former employers spoke well of him as an employee and one of them said that he was the last person to have his employment terminated on one occasion when there was a downturn in the industry.
It is apparent from the evidence that there were a number of factors which were likely to affect the respondent's ability to continue to obtain employment as a builder's labourer in the years that followed the accident. First, there was the disability which he suffered as a result of the injury to his cervical spine. Secondly, the degenerative condition of his lumbar spine, although not disabling at the time of the accident, was a factor which could have affected his continued ability to perform heavy work. Thirdly, the downturn in the building industry in the A.C.T. cast some doubt on the respondent's ability to obtain continuous employment notwithstanding the good quality of his work. Fourthly, there was a disinclination on the part of employers to continue to employ builder's labourers in their middle fifties and thereafter, particularly if they manifested any signs of back trouble.
The trial judge expressed his opinion as to the respondent's future work prospects in the following terms:
"In summary therefore I regard the plaintiff as permanently incapacitated from doing heavy labouring work of the kind in which he had engaged. I make some modest allowance for the fact that he may obtain some suitable light work consistent with his capacity. I allow for the possibility that from the date of the accident until to-day he may have lost some work because of the conditions operating in the building industry. I make a similar allowance, again modest, for the future."
We turn now to consider the manner in which his Honour arrived at the sum of $174,019.55. He said:
"For economic loss to date, taking into account the matters to which I have referred, I think the proper amount to award is $48,500.00. This is based on the net loss agreed at the trial with a continuing loss at the rate of $262.13 to 5 April 1984 and a subsequent continuing loss from 6 April 1984, taking into account the 4.1% national wage rise which occurred on that date and making due allowance for tax, of $271.79 per week. I have deducted the claim made on account of travelling allowance since it seems to me that that sum would in the normal way be expended by the plaintiff in gaining his income. See Sharman v. Evans (1977) 138 CLR 563 at p 577.
For the period from 31 August 1984 to 31 October 1984 I allow $2,400.00.
Based on the new tax rates to come into operation on 1 November 1984 - no impost on the first $4,595.00 with tax at the rate of 25% on income between $4,596.00 and $12,500.00 and, so far as is relevant, at the rate of 30% thereafter, I conclude that the plaintiff will from 1 November 1984 suffer a net loss of $279.35 per week. Over seven and a half years until he reaches the age of 60, using a discount rate of 3%, his loss at that rate would amount to a little less than $97,772.00. I think the proper amount to award for future economic loss from 1 November 1984 is $75,000.00. In fixing this sum, I have regard to a contingency to which I have not earlier referred, namely, that the plaintiff might have worked beyond the age of
60. I do not think this is particularly likely having regard to the evidence but it is something which I ought properly to take into account.
Out-of-pocket expenses are agreed at $6,369.55. I allow on account of the Fox v. Wood (1981) 148 CLR 438 component the sum of $11,750.00, a proportionate increase from the figure agreed at the hearing to take account of the time which has elapsed since then.
For general damages I award the sum of $30,000.00. I do not think the plaintiff's injuries are seriously inconveniencing although they disabled him from earning his living and I think that sum is the proper amount to award in all the circumstances. I have regard to the fact that he exaggerated his claim to some degree but I cannot ignore the significant fact that surgery was twice resorted to by treating neurosurgeons. There can be no doubt that it was necessary in each case."
No challenge was made to the allowance of the sums of $2,400 and $11,750. The appellant sought to challenge as excessive the award of $48,500 for economic loss to date of judgment, and of $75,000 for future economic loss. Further, we permitted the respondent to file a notice of contention raising the question whether the allowance of $30,000 for general damages was too low and also whether there should have been included in the judgment a modest amount for future pharmaceutical and medical expenses.
Before considering the arguments advanced to us by counsel for the appellants we should say that we reject the argument that the trial judge was in error in finding that the respondent's lower back pain would not have proved disabling. It is true that there was evidence (much of which came from the respondent himself) that the degenerative condition of his lumbar spine was causing him significant disability as at the date of trial. However, there was other evidence in the case, not the least cogent of which may have been the films, which established that the respondent had little or no difficulty in carrying out many activities notwithstanding his spinal condition. In the light of all the evidence we think it was plainly open to his Honour to come to the view, as he did, that the respondent would not have been disabled because of lower back pain. This is not to say, of course, that the condition of his lumbar spine was not a significant matter to be taken into account in determining the proper amount of damages to allow for past and future economic loss.
We turn now to consider the two criticisms of his Honour's judgment made by counsel for the appellants. It was first submitted that the allowance of the sum of $48,500 for past economic loss was excessive. It is apparent that this sum was calculated by making a discount of about 6% on a sum of approximately $51,000 which would have been the total amount of wages that the respondent would have earned had he continued in full time employment as a builder's labourer to the date of judgment. In our opinion this discount was too low. We have already adverted to the circumstance that the respondent had been given notice of termination of his employment because of a downturn in the building industry. It should also be mentioned that he had been unemployed for some months in the year or two before he sustained his injury because of non-availability of work. The evidence to which we have already referred as to the state of the building industry in the Australian Capital Territory leads us to the view that for a man of the respondent's age and limited skills there was a significant risk that he would have suffered periods of unemployment between June 1980 and date of judgment, a period in excess of four years.
We do not overlook the fact that the respondent was a good worker who was well regarded by his former employers. Whilst this is a factor to be taken into account in his favour on this issue, it is, we think, more than counter-balanced by the circumstance that whilst his lumbar back condition may not have produced disabling symptoms as at June 1980, it may well have done so during the ensuing four years. The respondent was approaching the age when, having regard to the nature of his occupation, the degenerative changes in his lumbar spine could be expected to produce symptoms which might affect his capacity for work. In fact, in February 1983, the condition of his lumbar back was such as to cause him to seek medical attention. Even though he may have exaggerated his troubles it is inescapable that he did seek medical attention for his back at that time. In our opinion all these factors warranted the making of a greater discount than that allowed by his Honour. In all the circumstances we would reduce the amount of the award for past economic loss by $5,000 to $43,500.
We turn now to consider the award of $75,000 for future economic loss. At the date of judgment the respondent was nearly 52-1/2 years old. The evidence to which we have already referred shows that it was unlikely that he would have been able to obtain employment as a labourer in the building industry in the Australian Capital Territory after he reached the age of 60. The evidence, which was called in his own case, made it plain that few labourers were able to continue in employment in the industry beyond their mid-fifties. We think it would be a reasonably generous assumption to make that the respondent might have expected to continue in employment as a builder's labourer for a further five years beyond date of judgment. Of course, this is not to say that the respondent might not have continued in some form of employment for more than five years and this is a matter to which we shall presently make further reference.
The present value of 5 years wages at $279.00 per week, using the 3% tables, is approximately $68,000. However his Honour found that the respondent had some residual work capacity. He said:
"I think it possible that with the problems of litigation behind him, the plaintiff may well become more at ease with his neck problem and find himself able to search for and perhaps obtain light work. I do not rate the possibility very highly but I think it exists."
If one were to take the view that the respondent's future capacity to earn income was limited to $50 per week, then the figure of $279.00 is reduced to $229.00 per week. The resultant capitalised figure, again using the 3% tables, would be about $56,000. It is still necessary to have regard to all the other vicissitudes of life. In the respondent's case they included not only the ordinary vicissitudes, but the distinct possibilities that he would be unable to obtain continuous employment in the five years after judgment and that the condition of his lumbar spine might incapacitate him in any event. Of course he may not have suffered any periods of unemployment and may have worked beyond his 57th year, and had the respondent lost his job as a builder's labourer he might well have been able to obtain light work in some other field of employment. But there is no suggestion that the injuries suffered by the respondent have disabled him from light work. Taking into account all these matters we think that a figure of $50,000 for future economic loss is appropriate to compensate him for future loss of earning capacity.
The two criticisms of the judgment made by the respondent's counsel can be dealt with shortly. In our opinion the award of $30,000 for general damages was well within the range of general damages appropriate to the respondent's injuries, especially bearing in mind the exaggerated account he gave of his symptoms. His Honour said that he did not think that the respondent's injuries were seriously inconveniencing although they disabled him from earning his living. This was a finding which we think was justified on the evidence. There is no basis for disturbing the award for general damages.
The claim for future medical and pharmaceutical expenses can also be dealt with shortly. It is true that there was evidence that before the respondent underwent surgery for the second time he did have a continuing need for some modest medical care and pharmaceuticals. But there is no evidence that after the second operation, which appears to have been successful, this need continued. His Honour's judgment is a most careful one. He did not see fit to award the respondent anything for this head of damages. It may well have been his view, for instance, that there was no substance in the respondent's claim that he needed to expend moneys on sedatives and the like because of his view that the respondent was exaggerating his symptoms. We do not think any reason is shown for disturbing his Honour's judgment in this respect.
In the result, we are of the opinion that the judgment should be reduced by the sum of $30,000. The appeal will therefore be allowed and the judgment varied by reducing it to $144,019.55. The respondent must pay the appellant's costs, but is to have a certificate under the Federal Proceedings (Costs) Act 1981.
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