Churchill v Electrolytic Zinc Company of Australasia Ltd
[1988] TASSC 49
•8 September 1988
Serial No 42/1988
List “A”
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:Churchill v Electrolytic Zinc Company of Australasia Ltd [1988] TASSC 49; A42/1988
PARTIES: CHURCHILL
v
ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
FILE NO/S: FCA 109/1987
DELIVERED ON: 8 September 1988
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Neasey and Nettlefold JJ
Judgment Number: A42/1988
Number of paragraphs: 30
Serial No 42/1988
List "A"
File No FCA 109/1987
CHURCHILL v ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
REASONS FOR JUDGMENT FULL COURT:
GREEN CJ
NEASEY J (Dissenting)
NETTLEFOLD J
8 September 1988
Order of the Court:
Appeal dismissed
Serial No 42/1988
List "A"
File No FCA 109/1987
CHURCHILL v ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
REASONS FOR JUDGMENT FULL COURT:
GREEN CJ
8 September 1988
This is an appeal against an award of $79,650 for damages for personal injuries caused by the respondent‘s negligence. The award was made up of $4,650 for future expenses, $25,000 for pain, suffering and loss of amenities and $50,000 for reduced earning capacity. The appellant submits that the award was manifestly inadequate on the ground that the amount of $50,000 did not adequately compensate the appellant for the reduction in his earning capacity.
The appellant, who was employed as a labourer in the respondent's leach division, suffered ligamentous damage to his wrist. This caused pain which was not alleviated by treatment and eventually the wrist was arthrodesed, resulting in a loss of use of the hand which the trial judge found was of the order of 35 per cent. At the time of the trial the appellant had marked muscle wasting in his arm and complained that he had restriction in his ability to straighten his arm and his fingers and clench his fist and suffered pain and discomfort and some other symptoms. The evidence supports the conclusion that there was no physiological cause for those symptoms, that the muscle wasting arose out of disuse, that the muscle bulk was capable of being restored and that if the appellant applied himself with sufficient determination to a programme of rehabilitation his arm, wrist and fingers could be restored to a virtually normal condition, save for the disability inherent in the arthrodesis.
The learned trial judge found that in order for a programme of rehabilitation to be successful it would require "from the plaintiff a great deal of determination and fortitude. The decision to make the effort and to fight through the pain must be made by him. The courage and stamina to keep going must come from him. In this respect the determination which he has shown to cope one–handed with outdoor tasks is very encouraging. But a doubt must remain." In assessing damages for, inter alia, loss of earning capacity his Honour concluded:
"Whatever degree of success is obtained, the plaintiff is permanently handicapped in the labour market. The effect of that handicap will be less apparent if he remains at Risdon. It would not be necessary to allow for periods of unemployment. However, given his work history, his personality, and his general background that might be too much to expect. Nevertheless, there is no immediate prospect of unemployment. There is a prospect of under–employment."
The appellant does not allege that the trial judge made any specific error in making his assessment, but submits that in arriving at the figure of $50,000 he gave inadequate weight to the following factors:
"(i)The great deal of determination and fortitude required by the Plaintiff for the programmes or rehabilitation to be successful.
(ii) The doubt which remains as to the Plaintiff‘s determination.
(iii)The fact that it is unlikely the Plaintiff will achieve as good a result as a person whose rehabilitation began immediately after operation.
(iv)The possibility of a further fracture which could be psychologically devastating.
(v)The hindering effect on his recovery of pondering the risk of a further fracture overmuch.
(vi)The fact that His Honour was reasonably confident that rehabilitation will be successful, but not totally so.
(vii) The permanent handicap to the Plaintiff in the labour market.
(viii)The fact that it might be too much to expect that there will be no periods of unemployment."
For the following reasons I am not satisfied that that ground of appeal has been sustained, or that it has been shown that the learned trial judge's assessment was erroneous:
1.The trial judge was in a better position than is this Court to make the assessments of the appellant‘s personality and psychological make–up which it was necessary to make in determining what steps it was reasonable to expect the appellant to take to rehabilitate himself and how successful those steps were likely to be.
2.In considering what steps it was reasonable to expect the appellant to take to rehabilitate himself it was necessary to have regard to the appellant's duty to mitigate his loss, that an unreasonable reluctance on his part to undertake the programme should not be taken into account and that what was being asked of the appellant in order to rehabilitate himself, although demanding, would not require an heroic effort on his part and could not be regarded as comparable to a programme of, say, risky surgery which it might well be reasonable for a plaintiff to decline to undertake.
3.As opposed to the adverse contingencies emphasised by the appellant, one must also give full weight to the possibility which was supported by the medical evidence, that the appellant might retain his old job with the respondent and suffer little reduction in the income he would have received but for the injury. The appellant submitted that even if he were able to remain as an employee of the respondent, he would suffer a loss of nett income ranging from $22.36 to $57.69 per week which, applying the 3 per cent. tables, would represent a minimum loss of between $25,000 and $64,000. That submission was based upon the evidence of Dr N H Clark who was employed by the respondent as the Manager of Personnel Services. Dr Clark was not medically qualified, but, amongst other duties, he was responsible for encouraging the appellant‘s rehabilitation. He gave evidence of a range of positions which the respondent had in the past made available to persons in the position of the appellant whom it was trying to rehabilitate so that they could return to the work force. Dr Clark's evidence about the nett income which the appellant could expect to gain from those positions supported the appellant‘s submissions. However, Dr Clark's evidence did not preclude the finding which was open on the medical evidence that the appellant might have been able to return to his old job. I do not accept therefore that it was inevitable that even if he were able to continue his employment with the respondent the appellant would suffer a loss of at least $22.36 or any other particular amount per week.
4.In my view, the learned trial judge‘s reasons for judgment show that he paid careful attention to all those factors which might have militated against the prospects of rehabilitation, or which might have exacerbated the effect which the appellant's injury had upon his earning capacity. His Honour gave detailed consideration to those aspects of the appellant‘s psychological make–up which presented the main barrier to rehabilitation, and carefully considered what standard of effort and co–operation it was reasonable to expect of this particular man. He then assessed the competing considerations and made a judgment of the extent of the reduction of the appellant's earning capacity which was reflected in his award of $50,000. I am not persuaded that his Honour erred in any way in making that judgment.
I would dismiss the appeal.
List "A"
File No FCA 109/1987
CHURCHILL v ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
REASONS FOR JUDGMENT FULL COURT:
NEASEY J
8 September 1988
When this accident occurred the appellant was employed by the respondent company at its works at Risdon in a task of chiselling gypsum with an iron bar from metal to which it was adhering. While working at this job he lost his footing and fell, and in extending his left arm to break the fall injured his left wrist. The injury was a fracture of the schapoid bone, with associated ligamentous damage. It was found necessary to arthrodese the wrist, but the first operation was not successful, and he had to have it repeated. There is now a firm arthrodesis. In each case, the arthrodesis required a piece of bone to be taken from a hip.
The wrist injury was described by one of the doctors as a loss of approximately 35% of the use of the left hand. Unfortunately, there has occurred also a substantial wastage of the muscles of the left arm. This wastage, the learned trial judge says, is "almost total in the forearm, pronounced in the bicep area, and noticeable in the region of the shoulder". The wasting is due to disuse of the arm, which has been in plaster for long periods, sometimes to the armpit and sometimes to the elbow. In addition the appellant has scarcely used his left arm at all since the accident, due to aspects of his personality. He was 28 years old at the time of the accident, and had been a physically strong and active man, somewhat aggressive in temperament, and proud of his strength. However, he is not particularly intelligent, and evidence which has accumulated since the accident indicates that he lacks the necessary mental and psychological resources to cope with his misfortune and disability.
The appellant has become resentful and querulous since the accident, and surprisingly, somewhat timid also, in that he avoids going into hotels because he thinks he might be "bashed up", and avoids semi–crowded areas such as streets and shops and the like, because he is afraid his wrist may be injured. He has taken to carrying his arm in a sling and treating it as though it was virtually useless. However, he has remained active within what he sees as his limitations, and works hard at home in chopping and stacking wood, working in the garden and so on, using his right arm only. As the learned trial judge said, he has not given up, but has given up on his left arm. He does not have any education, training, skill or experience in any field of employment except such as involve heavy physical activity of a manual kind. The pattern of behaviour above described had become ingrained in him by the time of trial (which began on 1 September 1987), according to the evidence. The trial judge found that the appellant has become anxious, agitated, and pre–occupied by his injury and the pain he still experiences, and this pre–occupation has affected his ability to work and his whole personality. The psychiatrist who has been and was still treating him at the time of trial diagnosed him as having a major depressive disorder and chronic pain syndrome.
The appellant was off work and paid workers‘ compensation until about March 1987, when the defendant company began to consider whether he would be able to return to employment. Their medical advisers recommended his return as a messenger, and this was tried but was unsuccessful because after three hours the appellant asserted that he could not carry on. It appears from the evidence that the reasons he gave involved "a confused compound of maladies, including pain in his wrist and resentment against the defendant company". It seems clear that he resented the menial aspect of his work as a messenger, and particularly the fact that his workmates tended to mock his predicament by referring to him as "the shadow", and by making other disturbing references of that kind to him.
After the failure of the first attempt to return to work as a messenger, a meeting was held at the respondent's premises, at which the medical and legal advisers on both sides conferred about what could be done for the appellant. It was agreed that he should recommence work at the plant as an assistant messenger, but spend half of each day at the Douglas Parker Rehabilitation Centre. His pay was restored to the full workers‘ compensation amount, which equalled average weekly earnings, and a programme of progressively increasing work duties was made up for him. That was the situation when the case came on for trial.
The learned trial judge, after describing all these matters carefully and in detail, said that the consensus of the advisers on both sides appeared to be, and his own assessment was, that in order to cure his condition, the appellant needed the following regime:
(1)a fresh start with new medical advisers, because the appellant felt that his present advisers with certain exceptions had failed him;
(2) removal of the plate still in his hand as a result of the second arthrodesis;
(3)an immediate exercise programme and physiotherapy to build up his arm and demonstrate to him that it is far from useless;
(4) continuing counselling or psychotherapy by his psychiatrist, Dr McCafferty;
(5)as soon as his arm begins to be more useful, and the pain "necessarily involved in restarting it lessens", return to work in a useful job.
His Honour pointed out that in order to be successful, this programme would require from the plaintiff "a great deal of determination and fortitude". He would need to decide to make the effort and to fight through the pain which would be involved. He would need courage and stamina to do so. His Honour thought that the appellant's determination, shown in the way he had coped one handed with outdoor tasks, was "very encouraging, but a doubt must remain". Even with optimum success, his Honour thought it unlikely that the appellant would achieve as good a result as a person whose rehabilitation had begun immediately after the operation, and if there should be any further fracture of the graft, which was always possible, that could be psychologically devastating.
The evidence was that the respondent company would guarantee the appellant‘s employment for 12 months, and allow him time off work for necessary medical or para–medical purposes, but that at the end of that period his continued employment would depend on his attitude and genuine desire to work. His Honour assessed the respondent company as being "a concerned and fair employer" who would give the appellant every opportunity to rehabilitate himself.
In summing up, the learned trial judge said:
" ... I must make some allowance for the risk that, even with the maximum co–operation which it is fair to expect from this plaintiff, the rehabilitation programme may not succeed, or may only partially succeed. It would not be right to approach this aspect of the matter in a way which demands from the plaintiff heroic stoicism, nor would it be right to pander to any tendency to self–pity. The touchstone must be what it is reasonable to expect of him. Applying that standard, I am reasonably confident that rehabilitation will be successful, but not totally so. Whatever degree of success is obtained, the plaintiff is permanently handicapped in the labour market. The effect of that handicap will be less apparent if he remains at Risdon. It would not be necessary to allow for periods of unemployment. However, given his work history, his personality, and his general background that might be too much to expect. Nevertheless there is no immediate prospect of unemployment. There is a prospect of under–employment."
Taking all those factors into account, his Honour assessed for pain, suffering and loss of amenities, past and future, $25,000; for reduced earning capacity, $50,000; and he gave judgment for the appellant for a total sum of $79,650. The appeal is against his Honour's overall assessment of damages, but the only subject of attack is the assessment of $50,000 made in respect of reduced earning capacity. Thus the thrust of the appeal falls within a narrow compass. The observations which his Honour made in assessing the appellant‘s situation, of which the more significant ones are set out above, are not contested; but counsel for the appellant argues that the trial judge assessed a figure which as an exercise of judgment in assessing reduction of future earning capacity is far too low, having regard to the appellant's relatively poor prospects of work rehabilitation and his age at the time of trial.
I am of opinion that the appeal should succeed on this basis. The appellant was aged 30 years at the time of trial, and apart from the usual contingencies would have had a future working life of approximately 35 years. If he continued in work with the respondent company according to the work available for him, and depending upon the degree of rehabilitation achieved, he would suffer a loss of nett income which would range between $22.36 and $57.69 per week. Thus the present value of his loss, according to the 3% tables, assuming he continues all his working life with the respondent company, which appears to be the best available prospect open to him, is approximately $25,000 at least and $64,000 at most. If he were unable to work again at all, according to the 3% tables the loss would be $339.82 for 35 years, yielding a lump sum total in the vicinity of $372,000, not allowing for contingencies.
I think, with respect, that the learned trial judge was over–optimistic, on his description of the appellant‘s condition and the effort required for rehabilitation, in expecting that his work rehabilitation programme would succeed to the extent of allowing him to pursue much more than the least remunerative of the kinds of employment available to him with the respondent. On this basis alone, I would have thought that an assessment of $50,000 would have been reasonable. However, in addition to that there should be added a reasonable lump sum which relates to the possibility that for other reasons, such as the respondent's attitude to continued employment of the appellant and persons in a like situation, its own situation in its market place, economic conditions generally, and the like, the appellant may not be able to continue indefinitely to work for the respondent. Such an additional amount would compensate for the appellant‘s general handicap in the labour market. It could not reasonably be assumed, in other words, that even if the appellant achieves a reasonable work rehabilitation he will necessarily be able to continue in the long term as an employee of the respondent. If he ceased for any reason outside his control to work for the respondent, then his probable economic loss would be very substantial indeed, in my view. I think it would be reasonable to add $25,000 to the $50,000 for this consideration; making a total of $75,000 for future economic loss.
I would therefore set aside the judgment appealed from, and substitute judgment for an additional $25,000, making a total of $104,650.
List "A"
File No FCA 109/1987
CHURCHILL v ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
REASONS FOR JUDGMENT FULL COURT:
NETTLEFOLD J
8 September 1988
The notice of appeal attacks an order made on 16 September 1987 whereby Mr. Justice Cosgrove ordered that there be judgment for the appellant in the sum of $79,650.00 together with taxed costs. The attack is on the following grounds:–
"1.That His Honour erred in allowing $50,000.00 for reduced earning capacity in that such sum was wholly inadequate on the evidence and the findings of fact made by His Honour.
2.That His Honour erred in allowing $50,000.00 for reduced earning capacity in that he gave insufficient weight to the following:–
(i)The great deal of determination and fortitude required by the Plaintiff for the programmes of rehabilitation to be successful.
(ii) The doubt which remains as to the Plaintiff's determination.
(iii)The fact that it is unlikely the Plaintiff will achieve as good a result as a person whose rehabilitation began immediately after operation.
(iv)The possibility of a further fracture which could be psychologically devastating.
(v)The hindering effect on his recovery of pondering the risk of a further fracture overmuch.
(vi)The fact that His Honour was reasonably confident that rehabilitation will be successful, but not totally so.
(vii) The permanent handicap to the Plaintiff in the labour market.
(viii)The fact that it might be too much to expect that there will be no periods of unemployment."
In essence there is one ground of appeal, namely, that his Honour erred in allowing $50,000 for reduced earning capacity in that such sum was wholly inadequate on the evidence and the findings of fact made by his Honour. The appellant particularises in par2 of the notice of appeal the evidence and findings to which the appellant submits his Honour gave insufficient weight and which led to the erroneous exercise of the discretion.
The appellant does not allege that the learned trial judge made any particular mistake of law or misunderstood the evidence. The appeal is based exclusively upon the alleged inadequacy of the damages awarded for reduced earning capacity.
The relevant principle to be applied in determining this appeal is the following:–
" ... the assessment of damages by a judge is an exercise of a discretionary judgment, and as such must stand unless an appellate court is clearly satisfied that the judge‘s function has not been duly performed; therefore an appellate court cannot properly interfere with the award merely because it would itself have awarded more or less: it may interfere only if it finds that the award was erroneously reached, whether through mistake of law or misapprehension of the evidence or otherwise; and the largeness or smallness of the amount awarded is not by itself a sufficient reason for being so satisfied unless it is so extreme as to convince the appellate court that the assessment is erroneous to the point of actual unsoundness." (Minchin v Public Curator of Queensland [1965] ALR 91 at p.96 per Kitto J; Walford v Milner, 7087 (unreported)).
The circumstances of this case make it appropriate to cite the following passage from Jackson v Jackson [1970] 2 NSWR 454 per Sugerman P at 461:
"It is … a matter of speculation and estimate dependent upon the evaluation of contingencies, the balancing of a variety of future possibilities and the attachment of money values to imponderables. Hence this is peculiarly a cases in which an appellate court would be reluctant to interfere with the finding of the trial judge on damages."
This is a case where there is a large psychological element in the appellant's problem. His Honour had an opportunity to gain insights into that aspect of the matter by observing the appellant during a long trial. The members of this Court have not had that opportunity.
If those psychological problems could be overcome the appellant could return to the work he did for the respondent before the accident and earn the full wages payable in respect of that work. On the evidence of Mr Binns the appellant would have a few restrictions in coping with that work. But, on the evidence of Dr Clark, the respondent could so organise the work that the appellant could make a full contribution despite those restrictions and receive the full wage. For this reason, I reject the submission in par7 of the appellant‘s written submissions to the effect that there is an inevitable loss of net income ranging from $22.36 to $57.69 per week.
On the evidence of Mr Binns, who was called by the appellant, the following propositions are true:
(1)His arthrodesis is sound. The wasting of the arm is due to disuse more than anything else and if he used it a bit more it would get better.
(2)The brace the appellant wears does not achieve anything apart from stopping the scar getting knocked.
(3) The plate in the arm no longer serves any purpose.
(4)There is no good anatomical reason for the appellant's complaint that he cannot straighten his arm.
(5) There is no "logical reason" why the appellant cannot straighten his fingers out completely.
(6) There is no reason why the appellant cannot clench his fist.
(7)Mr Binns could not explain why holding the appellant‘s left arm up in the air relieves pain in it.
(8)The Appellant presented a list of further complaints which Mr Binns could not explain. The list included headaches, pain in the left hand, pain when he grabs things, pain when the arm is stationary, pain when walking.
His Honour's reservations about the prospects of successful rehabilitation were referable to the psychological aspects of the case and not the physical aspects. That explains the emphasis the learned judge put on the evidence of the psychiatrist, Dr McCafferty.
Having regard to the true nature of the appellant‘s problems and the learned trial judge's position of advantage in relation to those problems, I cannot say that the amount awarded is such as to convince me that the assessment is erroneous to the point of actual unsoundness. If efforts at rehabilitation are rewarded to the point where the highest hopes of the experts concerned are fulfilled, the sum awarded will more than compensate the appellant for his loss. The extraordinarily difficult task of weighing the chances of that aim being achieved has been undertaken by his Honour and he has considered the task with great care. I am not persuaded that the result he produced was wrong. If efforts at rehabilitation are successful the residual disability will be limited and not such as to prevent the appellant doing a wide variety of labouring jobs. Before the accident he had worked in that field.
The appeal should be dismissed.
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