Butkovic, S. v A.C.T. Electricity Authority

L	CATCHWORDS

DAMAGES - appeal against quantum of award for

personal

injuries - accident neurosis - no error of fact or law

Kotsopoulos v Williams (unreported, NSW Court	of Appeal,
28 November 198'5)

Gamser v Nominal Defendant (1977)

136 CLR 145

BETWEEN

BUTXOVIC

STIPAN

Appellant

AND	AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY

Respondent

No. ACT G.45 of 1905

CORAM

Davies,

N aves,

Miles

1 July 1986

Canberra

' *IN THE

FEDERAL

COURT

OF AUSTRALIA )

7 .

)

AUSTRALIAN CAPITAL TERRITORY

)

I NO. ACT G.45 Of 1985

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL from the Supreme

Court of the Australlan

Capital Territory

SC 725 of 1979

BETWEEN: STIPAN BUTKOVIC

Appellant

AND :

AUSTRALIAN

CAPITAL

TERRITORY ELECTRICITY

AUTHORITY

Respondent

MINUTES OF ORDER

JUDGES MAKING ORDER:	Davles, Neaves and Miles JJ
DATE OF ORDER:	1 July 1986

WHERE MADE

Canberra

THE COURT ORDERS

THAT:

The

appeal be dismlssed.

The appellant

pay the respondent's costs.

. .

IN THE FEDERAL COURT

OF AUSTRALIA )

AUSTRALIAN _CA_PIT'AL

TERRITORY

DISTRICT	REGISTRY	1	No. ACT G.45	1985	of	i
l .

GENERAL DIVISION

ON APPEAL F R O M THE SUPREME COURT	OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN : STIPAN

BUTKOVIC

Appellant

AND

: AUSTRALIAN

CAPITAL

TERRITORY

i	ELECTRICITY AUTHORITY

Respondent

REASONS FOR JUDGMENT

JJ !

Miles

Neaves,

Davies,

CORAM

I '

DAVIES J

The evidence before the learned trial Judge showed

that, in February

1978, the appellant suffered burns when the

scoop of a mechanical excavating machlne that

he was operating to

excavate a

trench

came

into

contact

with

high

voltage

underground

cable.

The evldence

also

established

that

the

appellant suffered a neurotlc reaction

result of

the

accident and of his injurles and that it was that reaction rather

than the burns that was of significance in later years.

-	L
I
i

2 . :

, .

! '

. I

: I	The crucial findin9 of t'ne	learned	trlal	Judge	was	that	-	1 .
: '	!

. I

l ' . . .

the

plaintiff has

been

suffering

from

litigation

neurosis

B 1

and that when this case is

determmed he wlll find some suitable

employment." Such

findlnq is not infrequently made by courts

when there is an assessment of damages

for personal

in~urles

resulting from an accident. The litigation neurosis

of which his

Honour

spoke

a well recognised

neurosis

which

has

the

dlstinguishing	feature	that	the	claim	for	damages	or	the	I
1

litiqatlon itself provides

a psychological contribution to the

neurosis and that, once the matter has been finalised, the

neurosis recedes.

I -

However,

another

form

of accident

neurosls

of a

permanent rather than a temporary character. Such a neurosis

1 s

not infrequently found in men in the less well assimilated ethnic

groups of the community who suffer accident. Probably it occurs

because the man loses confidence In his abill'tF-to be the

bread-wlnner of the family and the dominant person therein.

Symptomatic of the neurosis is the adoption by the worker of the

role of an invalid in relatlon to his work and in relation to	his
home life.

The evidence given at the trial, other

than the evidence of

Dr J . A . Roberts, who appeared not to accept the existence of an

accldent neurosis of the latter type, seems to me to present

typical case of such

neurosis and to be entirely consistent

with it.

The medical practitioners, other than

Dr Roberts, were

conslstent

their

views

that

the

appellant

had

a severe

neurotic

reaction.

The

medical

oplnions

became

increasingly

. .

3 .

pessimistic as to hls prospects of recovery.

On 6 June 1978, Dr B. Hughson reported,

"It was my opinion that

he was suffering from

traumatic

accident

neurosis

and

was

unfit

resume work because of

his psychological state."

On 28 April 1981,

Dr R.C. McDonald reported,

"Psychologically he shows a

severe

hysterical

anxiety neurosis and his

emotional behaviour is

markedly

regressed

...

this

man

is 100%

incapacitated, 1 .e. he is

thls

ime

unemployable on psychiatric grounds."

Those two doctors in their reports expressed hope

of improvement.

However, on

6 January 1982, Dr X. Lubbe reported,

"I felt this man has

accident neurosis and

since, from reading other doctors earlier reports,

Its extent has not changed over the last two years

or s o ,

it is unlikely to improve and

seems

incapable of resuming work."

On l1 March 1983, Dr W. Knox reported,

"I believe that he wlll continue to function as an

effective invalid In

t'ne future, largely as a

result of

the severe psychological overlay which

has complicated his

physical Injury in

his 1978

accident.

On 25 February

1985, Dr Knox reported that there had been

virtually no change in the appellant's condition.

Dr Knox said,

"Your client contlnues to cope very poorly with	. /
r

everyday demands in his llfe.

... There has been

a gross psychological decompensation in this man's

case which

believe relates dlrectly to his

8.2.1978 accldent;. There

is massive avoidance on

your client's part of everyday responsibilitles.

...	In the light of his almost complete domestic

incompetence I

am not able to contemplate

Butkovic returning to any paid employment."

Oral evidence given by

Drs Lubbe and Knox was to the same effect.

So also was the evidence given by

Dr T.

Gavranic, a general

medical practitioner who attended to the appellant during most

the relevant perlod.

To like effect was the evidence of the appellant's wife,

Mrs Marghita Butkovic, who said, Inter alia,

"This accident

has changed everything because

he is

sick. The same

I am having difficult to explain

to my children vhat is the problem.

They

cannot

understand because they are still little, and they

talk to me and tell

me how that other fathers take

children away on holidays and

so and our father

does not because our father goes and lles down,	he
1 s sick.
.....

...	When he is nervous everying disturbs him,

everything Irritates him. When

IS in pilin,

everything, utterly everything disturbs

him, and I

have to look after everything.

have to work

what is supposed

to be his job and mine,

I have to

do it.

I '

Thus, perhaps because of my own individual experience with

like persons after litigation has terminated, I prefer the vlew

that the appellant has suffered from an accident neurosis which

will

have

permanent

effect

upon

his

life

rather

than

litigation neurosis which	he will largely overcome once the
lltigation has ceased.

But	to say that is not to say that the appeal should be

allowed. His Honour was the ~udqe

of the facts. The conclusions

which his Honour drew were open to him on the evidence and there

is no such clear evidence to the contrary or such clear inference

to the contrary

to be drawn from established facts that it would

be proper for

a Judge of an appellate court to substitute his

ovm

view for that

of the learned trial Judge.

I have had the opportunity of reading the reasons prepared

by Mr Justice Miles. I agree with his Honour's opinion that the

I	- .
I

. .

5 .

findings of

the learned trial Judqe

w p r p

f a i r l y open and ought

:	not to be interfered with and that on those findings his	Honour's	! .
a	1
assessment of damages was a proper one.
r
k	!
?

:	For these reasons, I would dismiss the appeal wlth costs.
i
1
I

Dated.

1 Jul;r 1986

~~~~~ I N THE FEDERAL COURT OF AUSTRALIA

)

'RY	)	NO.	ACT G.45	O f 1985
1

) I V I S I O N

)

APPEAL

from

t h e S u p r e m e

C o u r t

o f t h e

A u s t r a l l a n

Cap i t a l

T e r r l t o r y

S C

725

o f

1979

L '

BETWEEN : STIPAN BUTKOVIC

A p p e l l a n t

AND :

AUSTRALIAN CAPITAL

TERRITORY ELECTRICITY

AUTHORITY

Responden t

CORAM:

D a v l e s ,

Neaves

and Mlles JJ.

DATE:

1 J u l y 1980

REASONS

FOR

JUDGMENT

Mlles J.

T h l s

1 s

appea l

p l a l n t l f f

a g a l n s t

a n

award

damages

i n

t h e

Supreme

C o u r t

t h e

A u s t r a l l a n

Capi ta l

T e r r l t o r y .

T h e

p l a l n t l f f

was

i n j u r e d

o n

F e b r u a r y

1 9 7 8

w h i l s t

w o r k i n g

p l a n t opera tor .

The

scoop

t h e

m a c h i n e

w h l c h

h e

was

o p e r a t i n g

came

i n t o

c o n t a c t

w l t h

h l g h

v o l t a g e

unde rg round

cable ,

c a u s l n g

a n

e l e c t r i c a l

e x p l o s i o n .

T h e

unde rg round

cable

was

t h e

l n

ca re

and

control

t h e

r e s p o n d e n t

d e f e n d a n t .

The

award

of damages was for a s u m of

$144,682.21

which

a c c o r d l n g

t o

h l s

Honour

t h e

l e a r n e d

J u d g e

a t

f l r s t

I n s t a n c e

was

made

a s

f o l l o w s :

d a m a g e s

G e n e r a l

3 0 , 0 0 0 . 0 0

P a s t &

presen t loss o f

e a r n l n g

capac l ty

$100,000.00

Agreed

Fox v. Wood component

9,942.61

Agreed

med ica l

expenses

4,739.60

5144,682.21

2 .

T h e

p h y s i c a l

I n j u r i e s

a n d

t h e

plaintiff's

p e r s o n a l

history

b o t h

b e f o r e

a n d

a f te r

t h e

i n j u r y

are

n o t

t h e

s u b j e c t

d i s p u t e

i n

t h i s

appeal.

They may

b e

s u m m a r i s e d

b r l e f l y .

1 .

T h e

i n j u r i e s

were

b u r n s

t o

t h e

face,

n e c k ,

r i g h t

h a n d

I I

and arm and

uppe r

torso,

f l a s h b u r n

I n j u r y

t o

t h e

e y e s ,

i n l u r y

t o

t h e

r i g h t

h a n d

a n d

arm ,

i n j u r y

t o

t h e

n e c k

a n d

s h o c k .

p l a l n t l f f

was

a d n u t t e d

t o

t h e

R o y a l

C a n b e r r a

Hospital

o n

t h e

d a y of

i n ~ u r y

where

h e

r e m a i n e d

for

some

t h r e e

w e e k s .

T h e

l n ~ u r l e s

were

d e s c r l b e d b y h i s H o n o u r

" v e r y p a i n f u l

i n d e e d "

a n d r e q u i r e d h o s p l t a l i z a t l o n .

c o n t i n u o u s

d r e s s i n g

a n d

t r e a t m e n t

d u r i n g

h i s

T h e

f a c l a l

b u r n

was

completely

h e a l e d

b y

F e b r u a r y ,

b u t

t h e

s k l n

o f

t h e

r i g h t

forearm

r e q u i r e d

p r o t e c t i v e

d r e s s i n g

a n d

t e n d e d

t o

bl is ter

u n t i l

Apri l

1978.

T h e r e

p e r m a n e n t

b u t

m i n i m a l

s c a r r i n g

o f

t h e

p l a i n t l f f ' s

r i g h t

h a n d

a n d

f o r e a r m .

T h e r e

n o

w a s t i n g

loss of

m u s c l e

t o n e

i n

t h e

r l g h t

forearm.

The

p l a i n t i f f ' s

p h y s i c a l

i n j u r l e s

d i d n o t

I n c a p a c i t a t e

h l m

for

work

beyond

1 May 1978.

T h e

r e s i d u a l

d l s a b i l i t i e s

s e t

o u t

i n

t h e

p a r t i c u l a r s

f u r n i s h e d o n b e h a l f

t h e p l a i n t i f f

i n c l u d e t h e f o l l o w i n g :

" ( a )

P o s t - t r a u m a t i c

a c c i d e n t

n e u r o s i s

functional

o v e r l a y :

( b )

S e v e r e

p s y c h o l o g i c a l

r e a c t i o n

t o

i n i t i a l

i n j u r y

e s u l t l n g

i n

m a r k e d l y

r e g r e s s i v e

e m o t i o n a l

b e h a v i o u r

a n d

r e s u l t i n g

inability

to cope w i t h stress a n d

d e m a n d s

l i v l n g ; "

T h e r e

were

number

r e s i d u a l

d i s a b i l i t i e s

p h y s i c a l

n a t u r e

w h i c h

were

set

o u t

i n

t h e

p a r t i c u l a r s .

H l s

Honour

summar lsed

them

"sore

e y e s

w h i c h

r e q u i r e

h l m

t o

a v o l d

b r i g h t

l l g h t s ,

l o t s

o f

h e a d a c h e s ,

i n a b i l i t y

t o

sleep

a t

3 .

night, lack of strength ln the riqht arm and clumslness of the rlght hand, inabllity to cope wlth nolse around the home and a general feellng of belnq unwell". To these mlght be added the

plaintiff's complaint of dlzzy spells, susceptlbility to

noise, paln in the sides of the

head and paln In the knee and

back.

Of these allegatlons his Honour sald that not all were

proved In evidence.

It was common gound that the cause of the

complaints was not physical

but was psychologlcal In orlgln.

It was the nature and extent of the plalntlff's psychologlcal conditlon whlch was the substance of the dlspute between the partles on damages and which 1s the essential question raised on thls appeal.

The plalntlff

was

born

1 8

November

1 9 3 7

Yugoslavla where

he went to school, completed two

years

natlonal servlce and trained as a tailor. He marrled in 1960

and came to Australla in 1969 .

There are five children of the

marriage ranglng from 23 years to 9 years. In Australia the plalntlff soon found that outdoor work was more remuneratlve than tallorlng and after worklng €or some tlme as a labourer he acquired s k l l l s as a plant operator. He had been workmg

as a plant operator for at least twelve months

prior to hls

injury. His wife does not

work. She gave up work sometlme

after the plalntlff's Injury. The plalntlff has not worked

slnce the ~n-jury and does very llttle of a physlcal nature.

The plalntiff was referred by hls general practltloner,

Dr Gavranlc, to Dr

Bernard Hughson, a consultant psychlatrlst,

on 28 Aprll 1978.

Dr Hughson certlfied hlm as unflt for a

further month off work and prescrlbed drugs.

On 1 1 May 1978

4 .

Dr Hughson referred the

plalntlff to the rehabllitatlon unlt

at the Woden Valley Hospltal.

Such treatment as the plalntlff

received there was unsuccessful. S m c e then the plalntiff has been examlned by a number of psychlatrlsts whose flndlngs and

opinlons

were

the

sub~ect of reports and

in some

cases

evidence before the learned trial Judge. After

carefully

revlewing the medical evldence and after statlng hls reasons for finding it difflcult to belleve the plaintiff "unless corroborated from some other source", hls Honour concluded as

follows

"Notwithstandlng the preponderance of medlcal evidence, I have dlfflculty ln being satlsfled that he should be regarded as belng lncapacltated

for work up untll the present

tlme.

accept the opinion of Dr

McDonald

that

the

plalntiff has been sufferlng from

lltlgation

neurosls and that when thls case 1s determined he will find some sultable employment. There 1s no

doubt that the plalntlff

suffered

v ry

frightenlng experlence due to the negllgence of the second defendant. After an lnitlal perlod of hospitalisatlon and re'ridbllitatlon at home, he has

been left wlth minimal physlcal dlsabillty. For

paln and sufferlng, loss of enloyment of llfe and

resldual dlsabilltles, I provlslonally assess the

sum of $30,000 for general damages.

On one vlew of the evldence he was fit to return to work by the mlddle of 1978 . However, there 1s

a good deal of evldence to Indicate that because '

of hls functional overlay rather than mallngerlng

he has been unable to resume work slnce then. I

think on

the balance of probabilltles

has

established that he has been unable to work for a

number of years slnce the accldent because he has believed that he has not been able to work, but I also thlnk that he should have returned to work by now. It was agreed that If the plalntlff 1s

entltled to a sum to

compensate hlm

for

past

economlc loss from the date of the accldent untll the date of ~udgment, the approprlate sum 1s

$86,600.75.

Because he stlll believes that he

not able to work to the same capaclty

as he was

worklng

at the date of the accident, he

1s still

i '

5 .

lncapacltated to some extent.	If he wanted to he
could return to full capacity.

I think In

all

the

clrcumstances

wlll

eventually recover hls

full

earnlng

capacity.

Whether he explolts It 1s another matter. If he declines to do so, the second defendant should not

have to bear the economlc

burden of such

decision. He is physically quite well and there

are many areas of employment whlch would be open

to hlrn if he were

sufflclently motlvated, for

Instance, as a driver, messenqer or even as

tallor,

for

whlch

occupatlon

heas

some

training. In

the

clrcumstances, the

figures

presented In the report of Messrs E.S.

Knight and

Co., consultant

actuarles

(Exhlblt 1 4 ) , settlng

out the lump sums

necessary

compensate

the

plalntiff on the basls of total loss of earnlng

capacity at

retlrement

ages

55, 60 and 65

respectlvely

are of llttle assistance In

the

case.

Accordlngly, I assess for past and present

loss of earnlng capacity the sum of $100,000. ' '

A brlef summary of the medical evldence relating to the plalntlff's psychlatrlc condltlon or psychologlcal conditlon

1s as follows.

Dr Bernard Hughson, consultant psychlatrlst, reported

that on 2 8 April

1 9 7 8 the plalntiff was sufferlng from a

traumatic accldent neurosls and was unflt to resume work for a month. On 1 1 May 1 9 7 8 Dr Hughson reported that the

plaintiff's condltlon was not static and should Improve and

that the plalntiff was then flt for llght duties. Dr Hughson

was not called to give evldence.

Dr Colln J. Andrews, consultant neurologlst, reported that as at 7 July 1 9 7 8 the plalntlff ' S complaints were due to	I ,
I
anxlety and functlonal overlay. The sltuation was unchanged upon revlew on 1 5 January 1979 . Dr Andrews dld not glve

evldence.

Dr Robert McDonald, consultant psychlatrist, reported

that as at 28 April 1981 there was little organlcally

wrong

wlth

the

plalntlff,

that

was

suffering

from

severe

hysterical

anxlety

neurosis

which

there

was

strong

element of emotional overlay

and compensatlon neurosls whlch

was unconscious and not mallngerlng and would probably subslde

considerably after the settlement of the case. Dr McDonald

went

on to say In a passage

upon which hls Honour placed

emphasls "There

1s llttle doubt In my mlnd that

lf thls were

not a compensatlon case th1s man would have returned

to work

now.

sees himself as, and ln actual

fact

is,

unemployable

the

moment

." Dr McDonald

dld not

qive

evldence, and had

In fact

died slnce the tlme he saw the

plalntiff. Of the numerous medlcal

oplnions expressed, his

Honour found chat of Dr McDonald the most acceptable.

Dr plalntiff on 25 November 1981, gave evldence and furnlshed a

Lubbe, consultant psychlatrlst, who examlned the

report. She stated that the

plalntlff

suffered

from

accldent neurosls from whlch he was unllkely to recover because Its nature had not changed over the period of a couple of years. She acknowledged I n her evldence that she had been Influenced by other reports whlch she had read and that she was totally dependent on the plalntiff's veracity.

Dr Wllllam Knox, consultant psychiatrlst, gave evidence

that In his vlew the plalntlff had

settled falrly permanently

Into a state of dlsablllty whlch was llkely to remaln chronic, that the plalntlff would be llkely to contlnue to functlon as

effective

Invalld,

largely

result

severe

-I

p s y c h o l o g i c a l

o v e r l a y .

D r

Knox

a c k n o w l e d g e d

t h a t

h e

b a s e d

h l s

o p i n i o n u p o n

t h e

a c c u r a c y

t h e p l a l n t l f f ' s c o m p l a l n t s

t o

him

a n d

t h a t

t h e

p l a l n t i f f

was

p s y c h o l o g i c a l l y

v e r y

i n a d e q u a t e

i	a n d	v e r y	u n w e l l	i n d l v i d u a l .
'

l ,

T h e

o n l y

m e d l c a l

e v l d e n c e

cal led

b e h a l f

t h e

d e f e n d a n t f r o m p s y c h l a t r l s t .

D r

J . A .

R o b e r t s ,

c o n s u l t a n t

D r

R o b e r t s

c o n c l u d e d

t h a t

c o n d l t l o n

traumatic

n e u r o s l s

was

poss ib le

b u t u n l l k e l y a n d

t h a t

t h e

most

l l k e l y

d l a g n o s l s

w a s

f a b r i c a t i o n

b y

t h e

p l a l n t i f f

f o r

t h e

p u r p o s e s o f

c o m p e n s a t l o n .

I n

t h e

l i g h t

t h e

e v i d e n c e

t h a t

was

b e f o r e

h l s

Honour,

I t

a p p a r e n t

t h a t

t h e r e

w a s

l a c k

a g r e e m e n t

a m o n g s t

h e

d o c t o r s

a s

t o

t h e meaning

t h e

v a r l o u s

p h r a s e s

t h a t

h a d

been

u s e d

t o

descr lbe

t h e p l a i n t l f f ' s

c o n d l t l o n .

I t

n o t

a p p a r e n t

h a t

h e y

d l d

a g r e e

w o u l d

h a v e

a g r e e d

I f

a s k e d t h a t s u b s t a n t i a l l y

t h e y

were

a l l

t a l k l n g

about

the

same

similar

p s y c h o l o g l c a l

p s y c h i a t r l c

c o n d l t i o n .

F o r I n s t a n c e , men t ioned

I t

l l k e l y

c h a t

t h e

" t r a u m a t i c

n e u r o s i s "

D r Roberts

was

m e n t a l

c o n d l t l o n

w h l c h

( i f

e x i s t e d )

w o u l d

h a v e

a r i s e n

d l r e c t l y

o u t

t h e

o f

e v e n t s

s u r r o u n d l n g

t h e

p l a l n t l f f ' s

i n ~ u r y ,

whereas

t h e

" f u n c t l o n a l

o v e r l a y "

r e f e r r e d

t o

D r

Andrews

was

l l k e l y

t o

h a v e

been

p s y c h o l o g i c a l

c o n d i t l o n

whlch

causes

p a l n

a n d

o t h e r

symptoms

p h y s i c a l

d l s a b i l l t y

t o occur

lncrease

I n

l n t e n s l t y

a n d

w h l c h

b r o u g h t

a b o u t

e x t e r n a l

f a c t o r s

s u c h

as	i m p e n d i n g	l l t l g a t i o n .	!
I

T h e r e	were	two	principle	s u b m l s s i o n s	o n	b e h a l f	o f	t h e	1
!

a p p e l l a n t .

F l r s t

was

s u b m l t t e d

t h a t

t h e

s t a t e

o f

t h e

- i

. -

8 .

medlcal evldence

was such that

the trlal Judge was presented

wlth two alternative posslble flndlngs of fact:

elther that

the plaintiff was sufferlng from a

totally

lncapacltatlng

mental conditlon, by whatever name It mlght be called, or alternatlvely, that he was a total malingerer, with no room

for any flndings of fact

In between those two extremes.

Hls Honour stated that he found that the plalntlff

presented as a very evaslve and susplcious wltness. He also stated that he had vlewed fllms of the plalntlff shopping and golng about hls home whlch depicted the plalntlff leadlng a normal exlstence givlng a "vastly dlfferent conceptlon of the plaintlff's general condltion as contrasted with hls evldence and some of the statements he had made to the doctors." The trlal Judge also referred to a number of other factors whlch led hlm to reject the plalntlff as a rellable wltness. It is

unnecessary to refer to these In detall.

The assessment by

the trial Judge of the plalntiff,

as of all wltnesses, as a

wltness of truth or otherwlse was entlrely a matter for hmself and an assessment wlth whlch an appellate court should not Interfere. It is, of course, true that speclal care must be taken when assesslng the rellablllty of a wltness who 1s suffering or alleged to be sufferlng from some form of mental dlsturbance. It 1s notorlously dlfflcult to make flndings ln relation to the mental condltlon of persons who have suffered physlcal lnjurles from which they have recovered but who

present

dlsabled

because

some

supervenlng

mental

conditlon. Where

the mental condltion is not

precisely

not

precisely

identified

and where the

assessment

the

medlcal experts depends upon assumptxnnn whlrh may or may not be supported by proper evidentiary materlal, the dlfficultles encountered by a trlbunal fact of re Increased substantially. There IS, however, no reason to doubt that the learned trial Judge appreclated those difflculties and made

hls

assessment

properly

the

lght

of all

the

clrcumstances. That hls Honour

was

aware

of all

these

dlfflcultles 1s reflected, for Instance, In hls statement

that

he \?as lmpressed wlth the evidence

of Dr Roberts but hesltated

to accept

It totally because that course would amount to a

rejection of

all the other medical evldence

in the case.

Accordingly, in my view, It is not correct

to say that hls

Honour

was faced

with two

simple

alternatlves,

elther

acceptance of the

plalntlff

as totally and permanently

dlsabled,

rejection

the

plalntlff

total

mallngerer.

It was open to hlrn to arrive ac a conclusion

lying somewhere between

the, two extremes.

The second

prlnclpal subrnlssion on behalf of

the

appellant was that hls Honour confused factual findings wlth

what senlor counsel for the appellant described	as "moral
judgments". It was argued that support for thls submission

6 was to be found In a passage In the reasons for judgment where

h1s Honour said that the plaintlff "should have returned

work by now" and In reference to the future "If he wanted

he could return

to full caparlty".

A reading of those two

i remarks in context, however, Indicates that hls Honour was not

referring

to what he consldered the plaintrff ought to have

10 .

done

o u g h t

t o

do.

The

two

r e m a r k s

h a v e

t o

r e a d

I n t h e

light

o f

w h a t

h l s H o n o u r

s a l d

both

I n

t h e

l e n g t h y e x t r a c t

Irom

h i s

~ u d g m e n t

w h l c h

s e t

o u t

a b o v e

a n d

i n t h e rest

hls

r e a s o n s

f o r

j u d g m e n t .

1 s

c l e a r

t h a t

h i s

H o n o u r ' s

f l n d l n g s

a re ,

f l r s t , t h a t

t h e

p l a l n t l f f ' s

e a r n i n g c a p a c i t y h a d

f o r

some

time

I n

t h e

p a s t

b e e n

s u c h

t h a t h e

was

a t

t h e

tune

t r l a l

c a p a b l e

c a r r y l n g

ou t

some

fo rm of

l n c o m e

e a r n l n g

a c t i v l t y

a n d ,

s e c o n d l y ,

t h a t

a t

some

i n d e t e r m l n a t e

tlme

t h e r e a f t e r

t h e

plaintiff

w o u l d

b e

c a p a b l e

c a r r y l n g

o u t

i n c o m e

e a r n l n g

a c t l v l t y t o

t h e

same

e x t e n t

h e w o u l d

h a v e

b e e n

c a p a b l e

I f

had

n o t

b e e n

I n j u r e d .

was

s u b m l t t e d

o n

behalf

t h e

a p p e l l a n t

t h a t

t h e

l e a r n e d

t r l a l

J u d g e h a d

f a l l e n

s n t o

s l m l l a r error

f a c t a s

t h e

j u d g e

a t

first

I n s t a n c e

K o t s o p o u l o s

v .

Wllliams

( u n r e p o r t e d NSW

C o u r t

Appeal

November

1 9 8 5 ) .

I n

t h a t

case

t h e

p l a l n t l f f ' s

clalm

I n c l u d e d

c o n d l t l o n

m u t l s m

w h i c h

h a d

b e e n

a c c e p t e d

a t

t h e

t r i a l

a n

h y s t e r l c a l

c o n s e q u e n c e

o f

l n j u r y

w h l c h

w o u l d

d l m i n l s h

a n d

u l t l m a t e l y

d l s a p p e a r .

T h e

c o n d l t l o n

m u t l s m ,

t o g e t h e r

w l t h

some

a s s o c l a t e d

s y m p t o m s ,

I n

t h e v l e w

t h e

o n l y

p s y c h l a t r l s t

who

e x p r e s s e d

a n y

o p l n l o n

I n

t h e

case,

d u e

t o

s c h l z o p h r e n i c

form

p s y c h o s l s .

The

p s y c h l a t r l s t

e x p r e s s e d

t h e

f u r t h e r

v lew

t h a t w h l l s t

I n

t h e

l o n g

r u n

t h e r e m l g h t

some

d e g r e e o f

resolution,

t h e

p l a l n t l f f

w o u l d

l e f t

w i t h

c o n s l d e r a b l e

1 ,

d l s a b l l l t y .

o t h e r

p s y c h l a t r l s t

e x p r e s s e d

a n y

opln lon

o n

t h e

p e r m a n e n c e

otherwlse

o f

t h e

p l a l n t l f f ' s

p s y c h l a t r l c

c o n d l t l o n .

T h e

j u d g e

a t

f l rs t

I n s t a n c e

t o o k

t h e

v l e w

t h a t ,

l n

v a s t

t h e

n u m b e r

h y s t e r l c a l

cases,

symptoms

van l sh

?	11.
i
L

1	s p o n t a n e o u s l y	a f t e r	l i t l g a t l o n	when	t h e r e	1s	a	m e a s u r e	of
5
I

f l n a n c i a l

s e c u r i t y

a n d

r e u n l o n

w l t h

members

o f

t h e

f a m l l y

o v e r s e a s ,

r e s u l t l n g

I n

c u r e .

C o u r t

Appeal

c o n s l d e r e d

j u d g e concluding

a t

f l r s t

l n s t a n c e

was

n o t

l u s t l f l e d

i n

t h a t

t h e

f rom h i s experlence I n

o t h e r

c a s e s

t h a t ,

i n

t h e

face

o f

t h e

o n l y

m e d s c a l

o p l n s o n

o f f e r e d ,

t h e

p l a i n t l f f

was

l l k e l y

t o

r e c o v e r

a f t e r

t h e

e n d

o f

l i t l g a t i o n .

T h e

f a c t s

I n

t h a t case,

however ,

are

t o be

d s s t i n g u i s h e d

from

t h e

f a c t s

I n

t h e

p r e s e n t

case

w h e r e

t h e

p o r t s

D r

Hughson

and

D r McDonald

c l e a r l y r a l s e

t h e

l i k e l l h o o d

t h a t

t h e

plaintiff's

c o n d i t l o n

h a s

b e e n

p r o l o n g e d

a g g r a v a t e d

b y

t h e

d e l a y

I n

h i s

c a s e

c o m l n g

t o

t r i a l .

slmllar

v lew

taken

was

D r

G a v r a n l c .

A l l

t h o s e

v l e w s ,

a l t h o u g h

I n c o n f l l c t

w i t h

t h e

e v i d e n c e of

D r L u b b e ,

j u s t i f y

t h e

c o n c l u s i o n

t h a t w i t h

t h e

e n d

l i t l g a t l o n

t h e r e

d l s t l n c t

p o s s l b l l i t y ,

e v e n

l l k e l s h o o d ,

t h a t

h e

p l a l n t i f € ' s

c o n d l t x o n

will

Improve ,

and

I n

t h e

l l g h t

t h o s e

c i r c u m s t a n c e s

t h e

l e a r n e d

t r l a l

J u d g e

was

p e r f e c t l y

e n t i t l e d ,

I n

v i e w ,

t o

draw

t h e

f u r t h e r

c o n c l u s i o n

t h a t

t h e

p l a l n t l f f

w o u l d

e v e n t u a l l y

reach

h i s f u l l

e a r n i n g

c a p a c i t y .

T h e

q u e s t l o n

t h e r e f o r e

f o r

d e t e r m l n a t l o n

t h l s

C o u r t

w h e t h e r

h i s

H o n o u r ' s

a s s e s s m e n t

$ 1 0 0 , 0 0 0

for

lo s s

e a r n i n g

c a p a c i t y

b o t h

I n

t h e

pas t

a n d

I n

t h e

f u t u r e

was

b a s e d

o n

some

error

o f

f a c t

l a w

d e m o n s t r a b l y o u t

p r o p o r t l o n

t o

t h e

f ac t s

f o u n d

t h a t

I t

m u s t

b e

s e e n

m a n i f e s t l y

I n a d e q u a t e .

A s

h a v e

s a l d ,

t h e r e

was

n o

e r ror

I n

t h e f a c t u a l

f l n d l n g s .

I t was

f a i n t l y

s u g g e s t e d

t h a t t h e r e was

error of law I n

t h e

f a l l u r e

t o

separa te

t h e

a w a r d

f o r

past

12.

loss

o f

e a r n l n g

c a p a c l t y

from

t h e

award

for

f u t u r e

l o s s

e a r n l n y

c d p a c l t y .

W h i l s t

i n

many,

n o t

m o s t ,

c a s e s

i t

w l l l

a s s l s t a n c e

t o

t h e

appel la te

C o u r t

n o

less

t h a n

t o

t h e

t r i a l J u d g e loss a s d l s t l n c t from

h l m s e l f

s e p a r a t e c a l c u l a t l o n

is made

f o r p a s t

f u t u r e loss,

I t 1s

n o t

a n

error o f

law

t o

" r e f r a l n

from

a t t r i b u t i n g

s e p a r a t e

a m o u n t s

t o

v a r i o u s

h e a d i n g s

topics":

Gamser

v .

Nomina

Defendan t

( 1 9 7 7 )

1 3 6

CLR	1 4 5 a t p.155.

I n t h e

c i r c u m s t a n c e s o f

t h e p r e s e n t

case,

m o r e o v e r ,

t h e

t r l a l

J u d g e

was

l n

p a r t i c u l a r

d i f f l c u l t y .

had

made

f i n d l n g

t h a t

a t some tlme

i n t h e pas t and "for a number of

y e a r s " ,

t h e p l a i n t l f f h a d b e e n

t o t a l l y

I n c a p a c i t a t e d

reason

o f

h i s

m e n t a l

c o n d i t l o n ,

a n d

f u r t h e r

f l n d i n g

t h a t

a t

t h e

time

t h e

hea r ing

t h e p l a l n t i f f c o u l d n o t

a c c e p t e d

a s a n y

l o n g e r

t o t a l l y

Incapacitated.

P o s s l b l y

t o

c h o o s e

p o i n t

o f

time I n

t h e

past

m a r k l n g

t h e

t r a n s i t i o n

from

t o t a l

i n c a p a c l t y

t o

p a r t l a l

I n c a p a c i t y

w o u l d

appear

a r b i t a r y ,

t h e r e was

e v l d e n c e

t o

when

t h e

t r a n s i t i o n

o c c u r r e d .

S l m i l a r l y ,

a s

f a r

a s

t h e

f u t u r e

was

c o n c e r n e d ,

t o

se lec t

p o i n t

o f

tlme

I n

t h e f u t u r e e x p e c t e d

t h e

d a t e

b y

w h l c h

p l a l n t i f f

m l g h t

b e

t o

r e c o v e r

h i s

f u l l

e a r n l n g

c a p a c l t y

w o u l d

appear

t o

be of

l l k e

a r b i t a r y

n a t u r e

a n d

n o t

founded

o n

a n y

p a r t i c u l a r

item or items o f

e v l d e n c e .

T h e

s i t u a t i o n

t h e n

c o n f r o n t l n g

h i s

Honour

was

t h a t

h e

h a d

b e f o r e

h l m

man

who

h a d

r e c e l v e d

p h y s l c a l

I n j u r i e s

a n d

who

h a d

r e c o v e r e d

f r o m

t h o s e

p h y s i c a l

l n j u r l e s ,

b u t

man

w h o s e

p s y c h i a t r l c

o n d i t i o n

was

t h e

s u b j e c t

d e t a i l e d

a n d

c o n f l i c t i n g

e v l d e n c e .

T h e

c o n c l u s l o n s

o n

t h e

p a r t

o f

t h e

1 3 .

doctors depended upon factual bases whlch hls Honour

had to

determlne for himself

In the llght of all the evldence.

His

Honour was slmply

unable to accept the contention

put on

behalf of the plalntlff that the man before him was totally lncapacltated for work. The flndlng that the plaintiff's

incapaclty was somethlng less than total was, In

my vlew,

open to him. On the other hand, hls Honour was not able to accept the defendant's contentlon, supported by the evldence of Dr Roberts, that the plaintlff was a total malingerer. In

that

predlcament hls Honour took the vlew, whlch

he was

entitled to take, that the plalntlff had "for a number of

years" been totally lncapacltated but by the tune of trial had

become only partlally incapacltated. In similar veln hls

Honour looked to

the

future

and concluded

that at some

lndetermlnate time the

plalntlff's

earnlng

capaclty

would

return to what

It would

have

been

but for ln-~ury.

That

flndlng also was open to

h m .

- _

In the llght of all that It 1s lmposs1ble to look at

the flgure of $100,000 In ssolatlon and make a declsion as to

whether or not It was Inadequate recompense

for

the

plalntlff's loss of earnlng capaclty. What should be done 1s that the figure should be tested agalnslr. particular hypotheses that are permlssible wlthln the general flndlngs of the trlal

Judge. As a startlng polnt one may have regard to what the partles agreed was the total loss of earnlngs to the date of trlal ssumlng that the plalnclff had been totally incapacitated until then. That loss amounted to $86,600.75. However, It would be lnapproprlate to approach hls Ilonour's award on the basls that It was made up of the full flqure for

14.

past loss

of earning capaclty and a sum of some

$14,000

for

future loss of earning capaclty. Such approach could not be warranted because his Honour found, as he was entltled to flnd that the plaintiff had at some lndeterminate tlme in the past recovered some of his earning capaclty. An alternatlve, and

In my vlew, permisslble method of approach would

be to regard

the plaintiff as fully

lncapacltated for, say,

one half the

period in the past, for which perlod he would be awarded

$43,000 and to award, say, half that sum for the remaining

half of the past period, a further

S21,000,

maklng a total for

past

loss

$64,000. That would leave S36,OOO for

the

€uture.

There was uncontested evidence that the plaintiff's

net earnings but for injury at trial would have been

$ 3 0 0

net

per week.

If one takes one

half of that, namely

$ 1 5 0 per

week, as representlng present

and continulng loss of earnlng

capacity and projects it into the future,

one can look at

further hypotheses

fo r assessing the value

of the

loss of

future

arning

capaclty.

For Instance,

applying

the

discount tables,

$35,000 presents the present value of

$150

per week for thirteen years (taklng the plaintlff

age

6 0 )

less

fifty

flve

percent

for

contlngencles.

Alternatlvely,

$35,000 represents the present value of $ 1 5 0 per week for six

i	years less fifteen percent for contingencies, or as a further
I
alternative $ 1 5 0 per week for five years without reduction for

t .

contingencies.	These varlous hypotheses are ln themselves not	!
I_

unreasonable and indicate, in my

vlew,

that

$100,000 for

aggregate p a s t and future loss of earning capacity cannot be

seen as manifestly inadequate. Although the circumstances of	I
l

15.

t h e case were

s u c h

t h a t d l f f e r e n t

I u d g e s r n l g h t

a p p l y

d l f f e r e n t

me thods

o€ approach,

u n c o n v i n c e d

t h a t

t h e

l e a r n e d

t r ia l

- ,

J u d q e

was

wrong

i n t h e

f lqure

u l t l m a t e l y

a r r L v e d

for

loss

of	e a r n l n g c a p a c i t y .	',	1
!

I t

was

n o t

s u b m l t t e d

o n

b e h a l f

t h e

a p p e l l a n t

t h a t

a n y

o f

t h e

o t h e r

c o m p o n e n t

a m o u n t s

I n

h l s

F l o n o u r ' s

t o t a l

award

was

I n a d e q u a t e ,

e x c e p t

Insofar

a s

t h e

a w a r d

f o r

p a l n

a n d

s u f f e r l n q

a n d

loss

a m e n l t i e s of

l i f e res ted

upon

f a c t u a l

concluslons which

t h e

a p p e l l a n t

h a s

u b m l t t e d

I n

t h l s

C o u r t

were wrong

and

t o

whlch

h a v e

a l r e a d y

r e f e r r e d .

n o t

convinced

t h a t those c o n c l u s l o n s were

wrong

nor

t h a t t h e t o t a l

award of

2144,682.21

or any pa r t of

It was

i n a d e q u a t e .

For

t h o s e

r e a s o n s

t h e

a p p e a l

s h o u l d

b e

d l s r o l s s e d ;

t h e

appe l l an t

p a y

t h e

r e s p o n d e n t ' s

costs.

[1986] FCA 279

7 Jan 1986