Cleere v Matic Service Pty Ltd

[2004] NSWCA 453

CITATION:	Cleere v Matic Service Pty Ltd [2004] NSWCA 453
HEARING DATE(S):	17/11/04
JUDGMENT DATE:	10 December 2004
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Barrett J at 3
DECISION:	Appeal allowed only to the extent of re-assessment of damages for economic loss. Short minutes to be brought in.
CATCHWORDS:	CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - whether apportionment appropriate - DAMAGES - damages for non-economic loss - comparison with a most extreme case - damages for past economic loss - effect on assessment of damages for past economic loss of finding that plaintiff took all reasonable steps to mitigate damages - damages for future economic loss - determination of weekly rate appropriate to reflect residual earning capacity
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Dare v Pulham (1982) 148 CLR 158 Dell v Dalton (1991) 23 NSWLR 528 FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 Fox v Wood (1981) 148 CLR 438 Ghunaim v Bart [2004] NSWCA 28 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Mousa v Marsh [2001] NSWCA 317 Owners of Strata Plan 156 v Gray [2004] NSWCA 304 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Protectex Chemical Industries Pty Ltd v Morkaya (unreported, NSWCA, 17 May 1996) Re Poyser and Mills' Arbitration [1964] 2 QB 467 Webster v State of New South Wales (unreported, NSWCA, 23 July 1999).
PARTIES :	Michael Cleere - Appellant Matic Service Pty Limited - Respondent
FILE NUMBER(S):	CA 41102/2003
COUNSEL:	Mr A.J. Lidden/Ms E. Welsh - Appellant Mr D.G. Nock SC - Respondent
SOLICITORS:	Bryden's Law Office - Appellant Vandervords - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12269/01
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA No 41102 of 2003

BEAZLEY JA
HODGSON JA
BARRETT J

FRIDAY, 10 DECEMBER 2004

MICHAEL CLEERE v MATIC SERVICE PTY LIMITED

Judgment

1 BEAZLEY JA: I agree with Barrett J.

2 HODGSON JA: I agree with Barrett J.

3 BARRETT J: The appellant appeals from a decision of His Honour Judge Sorby exercising the civil jurisdiction of the District Court in which damages of $196,191 were awarded against his employer, the present respondent, in respect of a workplace injury.

4 The proceedings arose out of an incident on 23 February 2000 in which the appellant suffered injury to his back when he and his assistant, Mr Richardson, together lifted a wheelbarrow filled with concrete rubble and tipped the contents into a skip. The primary judge found the respondent employer guilty of negligence. His Honour also found that the appellant was guilty of contributory negligence which he assessed at 25%. The finding of contributory negligence is challenged on appeal.

5 The trial judge assessed damages by reference to three components. He awarded $64,895 for non-economic loss, taking the view that the appellant’s situation represented 27% of a most extreme case ($240,350). A sum of $38,126 was awarded for out of pocket medical and associated expenses actually incurred, plus $2,500 for future treatment. Damages for economic loss were assessed as $34,800 for past wage loss and $99,127 for future wage loss, $12,540 for past superannuation loss and $9,600 for future superannuation loss. The appellant contends that the components for non-economic loss and economic loss are manifestly inadequate.

6 The grounds of appeal are:

(a) that the appellant was not guilty of contributory negligence;

(b) that the award of non-economic loss was manifestly inadequate;

(c) that the award of past economic loss was manifestly inadequate and in particular

(i) that there should have been no reduction of economic loss since the injury sustained on 23 February 2000 because of some residual earning capacity;

(ii) that past wage loss should have been determined according to the common law principle that if a defendant’s negligence contributed materially to a plaintiff’s loss then, in the absence of failure to mitigate, the plaintiff is entitled to all those damages;

(iii) that having accepted that the appellant had mitigated his loss in respect of past wages, the primary judge should have awarded the appellant all of that loss; and

(iv) that the award should therefore have been on the basis of 174 weeks at $520 net per week;


(d) that the allowance for future wage loss was manifestly inadequate;

(e) that the award for both past and future loss of superannuation was inadequate;

(f) that the appellant should have been awarded the tax paid on workers compensation payments according to the principle in Fox v Wood (1981) 148 CLR 438; and

(g) that the primary judge gave inadequate reasons for his decisions on non-economic loss, contributory negligence and past and future wage and superannuation loss.

7 The respondent has conceded the need for a Fox v Wood component. The amount has been agreed at $9,530. There is no need for that matter to be pursued.

The incident on 23 February 2000

8 The central facts about the incident in which the appellant suffered injury may be briefly stated. The appellant was, at the time of the incident, aged 42. He was an experienced plumber. His career as a plumber began in 1973. Between 1985 and 1996, he had been self-employed as a plumber. He had joined the respondent as an employee in 1999. On the day in question, he was working without supervision, in company with the assistant, Mr Richardson, at a building site at Lane Cove. His task was to install a drainage pit and to clean up afterwards.

9 In the course of the clean-up, rubble created by the excavation and installation of the pit was loaded into a wheelbarrow. The appellant and Mr Richardson manoeuvred the fully laden wheelbarrow up a slope to a small rubbish skip some 1.2 metres high. One pulled from the front while the other pushed from behind. When they reached the skip, they lifted the wheelbarrow, one holding the wheel frame and the other holding the handles or shafts. They lifted the barrow to the rim of the skip, turned it over and tipped the contents into the skip. The appellant described it as “very heavy”. The estimated weight was 90 to 100 kilograms. Mr Richardson gave evidence that it was the appellant who initiated the lifting and that, when the appellant began to lift, Mr Richardson thought he should do likewise or the appellant would hurt himself. The appellant’s evidence was that, as he lifted, he heard a “click” and felt pain in his back. He complained immediately to Mr Richardson.

10 The primary judge held that the respondent employer had been negligent. He found that it was entirely foreseeable that the appellant could attempt to carry out the clean-up task assigned to him by lifting the wheelbarrow as he did. His Honour also found that the injury was preventable and could have been avoided by the use of a dingo (a small mechanical lifting device) or by the provision of a skip with fold-down sides. The respondent employer was held to be in breach of the duty of care owed by it to the appellant.

Contributory negligence

11 On contributory negligence, the case on appeal is that there should have been a finding of no contributory negligence rather than an assessment of contributory negligence at 25%. The appellant’s evidence was that he had never had any instruction or training in lifting heavy objects and had carried out a similar procedure of lifting a laden wheelbarrow on several previous occasions. He also gave evidence of time and cost constraints imposed by the respondent employer which he regarded as ruling out the hire of a skip with fold-down sides and made it impracticable to hire a dingo to transport the rubble from the worksite to the skip. The appellant considered himself to be in a position where he had to get on and do the job promptly in the best way he could with the wheelbarrow alone.

12 It is nevertheless clear that lifting of the wheelbarrow over the rim of the skip was not the only method available to the appellant. He could have lifted the wheelbarrow by the shafts to tip the contents forward on to the ground beside the skip and then shovelled them up into the skip. He could have shovelled direct from the wheelbarrow to the skip. The co-worker, Mr Richardson, said that there were several chunks of rubble roughly the size of a telephone book. He estimated the weight of each at five to ten kilograms. These could have been lifted out by hand and placed in the skip one by one, with the residue then being either shovelled out or tipped by lifting the lightened wheelbarrow. No training or tuition would have been necessary to make the appellant aware of these alternatives. They are simple matters of commonsense presenting no practical obstacle.

13 The appellant was, on the primary judge’s findings, an experienced plumber. He had had back injuries in the past. He had done similar jobs on previous occasions in his career as a plumber. The work was of a kind that a plumber would be expected to do.

14 The point from which the primary judge approached the question of contributory negligence was, of course, the finding that the employer had failed to use reasonable care to provide a safe system of work and to see that the employee was not exposed to unnecessary risks. The next step, therefore, was to consider whether the employee was merely inadvertent or made an error of judgment or, by contrast, was negligent so as to render him responsible in part for the damage. This is the test enunciated by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at p.310.

15 On the evidence, the primary judge was entitled to conclude, as he did, that the appellant had failed to take reasonable care for his own protection. It was submitted on behalf of the appellant that someone who has never been taught to lift cannot have imposed upon him the standard of reasonableness of someone who has been taught to lift. But the appellant, an experienced plumber aged 42 who had had earlier back problems, cannot but have been aware of available options for emptying the wheelbarrow. Whether they actually occurred to him or not, they are so simple and obvious that he must be fixed with knowledge of them. There is no reason to think that they could not have been employed perfectly well within the timing constraints under which the appellant was working. A finding of contributory negligence was clearly available and the primary judge did not fall into error in making that finding.

Apportionment

16 I consider next the matter of apportionment. Where a jury has apportioned negligence between the parties, it is not for an appeal court simply to substitute its own opinion for that of the jury: Liftronic Pty Ltd v Unver (2001) 75 ALJR 867. In this case there was no jury. The scope for review of a decision on apportionment is nevertheless extremely limited unless some error be shown in the finding of facts relevant to apportionment. This is because the question of apportionment is treated as involving the exercising of a discretion. The matter was put thus by Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh [2001] NSWCA 317 at [12] (paraphrasing words used by Gibbs CJ, Mason, Wilson, Brennan, and Deane JJ in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at pp.493-4):

“It is well established that since a court’s apportionment of the degree of liability due to the plaintiff’s contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed.”

17 In Ghunaim v Bart [2004] NSWCA 28, McColl JA (with whom Giles JA and Ipp JA agreed) said:

“To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere ‘if the trial judge’s apportionment was reasonably open’. (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44, (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA’s statement of principle: Rexstraw v Johnson [2003] NSWCA 287.”

18 The appellant does not identify any particular factor as pointing towards a conclusion of manifest unreasonableness or injustice affecting the apportionment of this case. The primary judge’s decision on apportionment was one that was reasonably open to him. It is not within the very limited scope of permissible review on appeal.

Damages for non-economic loss

19 In a statutorily modified common law action for damages such as this, the court is constrained by statute in its ability to award damages for non-economic loss, that is, for pain and suffering, loss of the amenities of life, loss of expectation of life and other non-monetary losses. Having regard to the former s.151G of the Workers Compensation Act 1987 applying to claims for damages commenced before 27 November 2001, the court may not award more under that heading than the amount prescribed as applicable to “a most extreme case” (here, $240,350). Where the particular case does not represent “a most extreme case”, it is the task of the court to award a proportion of the maximum determined according to the severity of the non-economic loss.

20 An obvious example of injury likely to be regarded as “a most extreme case” is quadriplegia. In some instances, paraplegia may be “a most extreme case”: Dell v Dalton (1991) 23 NSWLR 528. A case of serious brain damage or gross disfigurement may also represent “a most extreme case”: Owners of Strata Plan 156 v Gray [2004] NSWCA 304. Less horrific injuries must be placed at an appropriate point on the scale below “a most extreme case”. As Handley JA observed (with the concurrence of Kirby P and Priestley JA) in Dell v Dalton, determining that appropriate point “will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment”. Review on appeal of such an assessment by a judge sitting without a jury is permissible only if, and to the extent that, the judge acted on a wrong principle of law, misapprehended the facts or made “a wholly erroneous estimate of the damages suffered”: see cases referred to by McColl JA in Ghunaim v Bart (above) at [100].

21 The primary judge assessed non-economic loss at 27%. He referred at some length to the evidence of the appellant’s medical history and prognosis. The day after the injury, lumbar function was found by Dr Mok to be 45 degrees with extension, lateral flexion and rotation to both sides normal, although all ranges of movement were associated with pain. There was some diminution in flexion and extension at the hips, plantar flexion and dorsiflexion of both feet were normal power and reflexes of lower limbs were normal. The plaintiff said he could “hardly walk” and had two weeks off work before going back “to try and do something”. By 9 March 2000, Dr Mok found the appellant to be “80% improved”. However, back pain persisted and made it difficult for him to cope with even light duties at work. The primary judge reviewed in some detail assessments by Dr Mok, Dr Sun and a neurosurgeon, Dr McDowell who, in December 2000, found dehydration and bulging of the L5/1 disc with what appeared to be a midline annular tear. Dr McDowell formed the view that the pain was discogenic but that neurosurgery was not indicated. Dr Sun said in a report of November 2000:

“Provided suitable duties are available he should be able to manage 30 hours a week of work.”

22 The appellant’s return to work with the respondent was unsuccessful, as were his attempts to find other work, apart, it seems, from a trial on the shop floor at Hardwarehouse in the plumbing section which he enjoyed but found somewhat difficult because of sustained standing. He was mobile, although unable to walk long distances and could only lift light objects. As a result of his back pain and his inability to find suitable work, the appellant became depressed. He was treated by a psychologist. Attempts were made to find him a place in a private psychiatric hospital as he was considered a high suicide risk. The hospital could not accommodate him and he continued regular sessions with the psychologist. There were sixteen sessions in all.

23 The medical evidence was reviewed by the primary judge in some detail. It showed that the appellant had suffered previous back injuries in the course of working as a plumber. The first occasion was in 1977 (or, according to at least one of the several medical histories in evidence, 1975) when the appellant lifted some gas cylinders. There was another incident of back injury in or about January 1986 when the appellant lifted a heavy electric eel. One medical report (that of Dr Tinning, an orthopaedic surgeon) refers, in addition, to an incident in October 1993 when the appellant experienced back pain after digging and an occasion in May 1994 when his back became very sore after a period of bending down. All the reports are consistent in diagnosing these earlier injuries as involving ligament strain.

24 Another consistent message from the medical reports is that there was a degree of pre-existing degenerative disease; also that the appellant is no longer fit for plumbing work involving lifting or regular stooping or bending, but is by no means incapable of doing other work of a less physically demanding kind. Dr Edwards, who provided an expert report dated 14 August 2003 for the purposes of the proceedings at first instance, expressed the opinion that the appellant had sustained an 8% impairment of his back, compared with a most extreme case, and that 70% of this impairment was a result of degenerative changes pre-dating the incident on 23 February 2000, while 30% may be attributable to that incident. Dr Matheson, in a report also dated 14 August 2003, expressed the opinion that the appellant had a 15% permanent impairment of the back and that the incident of 23 February 2000 had produced a 5% permanent impairment of the back.

25 It was submitted on behalf of the appellant at the trial that non-economic loss might appropriately be assessed as 30% of “a most extreme case”. It was submitted on appeal that the earlier submission does not preclude the adoption of some greater percentage by this court. Reference was made to Dare v Pulham (1982) 148 CLR 158 and Webster v State of New South Wales (unreported, NSWCA, 23 July 1999). The proposition advanced on behalf of the appellant may be accepted in the abstract. But the fact remains that, in order to establish an entitlement to have this court place his non-economic loss at some higher point on the scale, the appellant must show, by reference to the evidence, that 27% represents “a wholly erroneous estimate of the damage suffered”.

26 I am not satisfied that the appellant has discharged that onus. As far as the physical injury is concerned, it is clear that the appellant suffers some incapacity because he cannot safely lift heavy objects or function in a way that involves regular stooping or bending. He also has difficulty in standing for long periods. But he is mobile and has no impairment in walking or driving, so that, subject to the impact of the particular incapacity involving lifting, regular stooping and bending and prolonged standing, he is physically able to live a normal life. The non-physical aspect, in the form of depression, was treated and improved. The process of adjustment to reduced physical capacity and unsuitability for plumbing work in the future will be ongoing.

27 The primary judge did not, in this area, act on any wrong principle of law or any misapprehension of the facts; nor could the estimate he made be said to be wholly erroneous.

Review of findings relevant to economic loss

28 In approaching the question of damages for economic loss, both past and future, I begin with the primary judge’s findings as to the appellant’s capacity to work. His Honour said:

“I have dealt with, to some extent, the Plaintiff’s work history earlier in this judgment. The Plaintiff has an impressive work history being in gainful employment as a plumber up until February 2000 with few breaks. Within a matter of a couple of weeks of the February 2000 incident the Plaintiff was back at work and the report of Dr Mok, Dr Sun and Dr McDowell set out clearly that the Plaintiff’s efforts in this regard. They also make it clear that the Plaintiff was capable of a range of gainful jobs from a few weeks after the accident to the date of trial. The Plaintiff, to his credit, has tried very hard to find employment with the restrictions imposed by the doctors. The Plaintiff has attempted to retain and find work as a teacher. He was at the time of trial about to start work as a console operator in a service station. The agreed weekly rate is $520 net. There was a 10 week period in which the Plaintiff was employed in light duty job.”

29 Earlier in the judgment, his Honour had said:

“The Plaintiff continued to be reviewed by Dr Sun between April 2000 and 1.5.02. His reports record the Plaintiff’s attempts at return to employment, but without success. … Dr Sun said the Plaintiff was not fit to return to his work as a plumber and should be retrained. He said at November 2000 that the Plaintiff should be able to manage 30 hours a week of light duties. … By June 2000 the Plaintiff told Dr Sun that he had completed a TAFE course and was applying for jobs. He was certified fit for 5 days at 6 hours a day. By 8.8.01 he was still attending a further TAFE course to qualify as a teacher in plumbing. He told Dr Sun that he was applying for jobs as community bus driver or work in hire cars business. He said his main limitation was walking for long periods.”

30 His Honour returned to the matter of capacity in his discussion of future economic loss:

“However the Plaintiff is about to start gainful employment. He believes he is able to do a wide range of work, including that of a teacher in plumbing, if such work was available. He has a considerable work capacity despite his injuries.”

31 It is submitted on behalf of the plaintiff that these findings overstate the appellant’s capacity to work and understate the impact of his injury. There is force in that submission. The evidence shows that the appellant had only two periods of employment between the date of injury and the date of trial. He went back to his plumbing job with the respondent shortly after the injury. He was put on light duties but, after a short time, there was no more light work and he had to go back to the normal tasks that involved physical activity that he could not manage. He therefore had to leave that position. The other period of employment was in the plumbing section of Hardwarehouse where he was placed by a rehabilitation consultant. That was not a permanent job. It was more in the nature of work experience and was of limited duration. He found the work to his liking but experienced discomfort from being on his feet for long periods.

32 The appellant was never “about to start work as a console operator in a service station”. Nor, at the date of trial, was he “about to start gainful employment”. He gave evidence that he was merely looking at a console operator position and was aware of a possible opening through a friend. At the time of giving evidence, the appellant regarded a console operator position as promising. He had found out from his friend what it involved and had been to the service station “a couple of times and sat behind the console”. He said in evidence that he considered himself physically able to do the work. The rate of pay he had been led to expect for that kind of work was $10 per hour, which I assume is take-home pay after deduction of tax at source.

33 The appellant said he had considered heavy vehicle driving but came to a realisation that this would involve lifting beyond his capabilities (for example, when there was a need to change a wheel). He also gave evidence that he had made 100 to 150 unsuccessful job applications. These included applications in the field of TAFE teaching which had been the focus of his rehabilitation assistance. This adds a degree of particularity that is lacking in the primary judge’s general statements about efforts to find work. It shows that the prospects were obviously less promising than his Honour suggested.

34 Consideration of the primary judge’s findings on economic loss must, in my opinion, take account of the factual matters to which I have referred in paragraphs [31] to [33].

35 The other point to be mentioned in this connection is that there was agreement at trial about rates of pay applicable to the appellant’s pre-existing position with the respondent. It was agreed that, as at the date of the accident, the appellant was earning $520 net per week; and that, if he had been working the same job with the respondent at the date of trial, he would then have been earning $590 net per week (Black Appeal Book, p.78).

Past economic loss

36 The primary judge assessed past economic loss (attributable to the period from injury to trial) on the basis of $200 net per week for the whole period, less ten weeks. The deduction of ten weeks was described by his Honour as “the period in employment for which there is no loss claimed”. The submission at trial was that past economic loss should be “$520 per week from 23 February 2000 to 12 September 2003 (less 10 weeks when the plaintiff was working)” – in other words, that assessment should be on the basis of loss of the whole of the pre-existing earning capacity, with no continuing capacity to work and earn being recognised.

37 This submission carries within it the proposition that damages for past economic loss should, in this case, reflect the actual loss of earnings for the relevant past period, with the rate of salary or wages prevailing immediately before injury as the determinant without any adjustment on account of residual earning capacity. It follows, according to this approach, that if there is a prolonged period of unemployment in fact, the full weekly rate should be allowed for the whole of that period. This is the argument also advanced on appeal.

38 I am not satisfied that this is so as a general proposition. Prima facie, loss of earning capacity in respect of a past period is to be measured as the difference between what the employee would have earned during that period from the position held at the time of injury and any amount which, notwithstanding the reduced earning capacity, the employee had earned or could reasonably be held capable of earning during that period. This is the formulation of Deane, Dawson, Toohey and Gaudron JJ in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at p.4. Actual earnings are not the sole determinant. Attention must also be paid to capability.

39 In this case, however, the appellant had the onus of proving that he took all reasonable steps to mitigate damages. This is the effect of the former s.151L of the Workers Compensation Act 1987 applying to this case. The primary judge found that the appellant had discharged that onus. This finding was not challenged on appeal. Its significance in the present context must be considered. Implicit in the finding is an acknowledgement that the appellant took all steps that, in the circumstances of the plaintiff and in the light of what happened to him and the consequences of what happened to him, were reasonable. This is the meaning of the requirement to take “all reasonable steps to mitigate damages” recognised in Protectex Chemical Industries Pty Ltd v Morkaya (unreported, NSWCA, 17 May 1996). Included in the steps which, in this case, the primary judge found to represent “all reasonable steps to mitigate damages” were, of necessity, the steps taken to find alternative employment. The primary judge’s unchallenged finding on mitigation must therefore be taken to indicate that there was no step in and about the obtaining of alternative employment that the plaintiff could reasonably have taken but did not take. This is the effect of the finding as to “all” reasonable steps.

40 The finding on mitigation has, in my opinion, a direct bearing on the assessment of damages for past economic loss. Earning capacity can only be regarded as a reflection of the ability to find and carry out the duties of employment through the taking of reasonable steps. Someone who fails to find alternative work despite having taken all reasonable steps will, in the absence of some indication that the failure arose from something other than unfitness for work, thereby show a loss of past earning capacity commensurate with the unemployment actually experienced.

41 In this case, where no other cause of the failure is indicated, it follows that the question of the plaintiff’s past economic loss should have been approached on the basis that there was a loss of earning capacity measured by reference to net earnings at the rate applicable immediately before 23 February 2000 for the whole of the time for which the appellant was unemployed after 23 February 2000 until trial. In this respect, I accept the submissions made on behalf of the appellant.

Future economic loss

42 The appellant submitted at trial that future economic loss should be calculated by reference to a period of 20 years (he was then aged 45) at a rate of $250 net per week. When a discount for present value was applied and an allowance for vicissitudes was made, the calculated sum became $141,690, being $250 per week for 666.4 weeks (the present value discounted equivalent of 20 years), making $166,600, from which was deducted 15% for vicissitudes of life to produce the final figure of $141,690.

43 The primary judge accepted this approach except for the weekly rate of $250 net. For this, he substituted a weekly rate of $175 net. His Honour’s decision on this and his reasons for it were briefly stated:

“It was the submission of Ms Strathdee for the Defendant that only a modest cushion should be allowed for the future. It was her submission that his injury was an aggravation of a pre-existing condition and the aggravation had largely ceased. There is some strength in her argument given the Plaintiff’s stable medical condition and the fact the Plaintiff is not having treatment.
Counsel for the Plaintiff submitted that there should be a weekly amount allowed to reflect the Plaintiff’s ongoing residual work incapacity. In view of the findings I have made and the medical evidence of the Plaintiff I consider this to be the proper approach. However the Plaintiff is about to start gainful employment. He believes he is able to do a wide range of work, including that of a teacher in plumbing, if such work was available. He has a considerable work capacity despite his injuries. He is a relatively young 45 years old. I propose to allow the sum of $175 net per week for the future for a total of $99,127 ($175 x 666.4 x .85).”

44 The appellant’s case on appeal is that this is manifestly inadequate. It is submitted that the weekly rate of $175 net is far too low but, as I understand it, there is otherwise no real complaint about the methodology used. It is not suggested (and, on the evidence, could not be suggested) that this injury affected life expectancy or provided some basis for departing from the “conventional” 15% allowance for vicissitudes of life (see FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 at [18]).

Conclusions on economic loss

45 The trial judge proceeded on the incorrect basis that the appellant was about to start work in the console operator position. His Honour did not refer to the 100 to 150 unsuccessful attempts to obtain employment (including in TAFE teaching), although he did mention general attempts to find work. Nor did he refer specifically to the period with Hardwarehouse and the appellant’s difficulty in coping with a full day in the shop, thus demonstrating a capacity for less than a full-time workload. As a result, there was an overestimation of the residual earning capacity

46 Having regard to the matters I have mentioned, the approach indicated by the evidence is one that recognises a future capacity to work for less than the standard working week. Given the difficulty and discomfort experienced by the appellant when required to be active for sustained periods, I would approach the matter on the basis of 30 hour working week, on the basis that it would in all likelihood be possible, in such a situation, to work for two periods of three hours each with a break between them. Thirty hours per week was the workload seen as manageable by Dr Sun in November 2000 – provided duties are “suitable”, which I take to be a reference to light work not involving the activities that cause pain and discomfort for the appellant.

47 When it comes to the quantum of remuneration for light work of the kind in question, the best evidence before the primary judge was that related to the console operator’s position. Console operator work for 30 hours per week would have been “suitable” in Dr Sun’s terminology. The appellant regarded himself as physically capable of that work. Applying the indicated console operator rate of $10 net per hour, there would be a future capacity to earn $300 in a 30 hour week.

48 There is then, however, a question as to the rates to which regard should have been had in assessing what the appellant would have earned if he had been able to continue his pre-existing employment. I have already noted the agreement at trial that the applicable rate at the time of injury in February 2000 was $520 net per week and that the corresponding rate for the same position at the date of trial was $590 net per week. That being the parties’ agreed position, the primary judge could have approached the question of future economic loss on the basis that the residual or reduced earning capacity replaced a capacity for the future to earn $590 net per week, not $520. In reality, however, his Honour was not invited to do so and, in accordance with the written submissions of the appellant’s counsel at trial, he had regard to a figure of $520 net per week.

49 If the sum of $520 net per week referred to in those submissions were adopted, a capacity to earn $300 net per week as I have outlined would indicate a lost earning capacity based on $220 net per week. If the $590 net per week agreed at trial were adopted instead of this $520, loss would be calculated on the basis of $290 per week. I am of the opinion that a figure between these two most accurately reflects the relevant loss. The appellant had a pre-existing back injury. Particularly if only the usual 15% is allowed for vicissitudes of life, some allowance is needed for that pre-existing condition. I would regard $250 net per week as properly reflective of the future economic loss to be taken into account in the assessment of damages.

50 In the result, therefore, a re-assessment of both the past economic loss component and the future economic loss component is required. The past component should be re-calculated by recognising loss at the rate of $520 net per week for the whole of the period of unemployment between 23 February 2000 and the date of trial, that is, on the primary judge’s findings, 174 weeks ($520 x 174 = $90,480.00). The future component should also be re-calculated according to the primary judge’s methodology but with the weekly sum to be used in the calculation of lost earning capacity being $250 net instead of $175 net.

Superannuation

51 In determining the component of damages referable to loss of superannuation, the primary judge applied a multiplier of 8% to past wage loss and 9% to future wage loss. Those multipliers were accepted as appropriate by the parties upon appeal. The multipliers must be applied to gross wage figures.

52 The agreement between the parties at trial (Black Appeal Book, p.78) included agreement on gross wage figures as well as net wage figures. A sum of $724.48 was agreed as the gross equivalent of $520 net and $800 was agreed as the gross equivalent of $590 net. There must be a calculation of the gross equivalent of the $300 net per week which is the revised figure for residual earning capacity. I assume that the parties will have no difficulty in agreeing this. The superannuation component can then be adjusted to accord with the parties’ agreement on gross weekly earnings and applicable multipliers, as well as the other quantum findings on appeal.

Adequacy of reasons

53 This ground of appeal was added belatedly. It first appeared in the written submissions of the appellant’s counsel filed in advance of the hearing of the appeal. It is true that the primary judge’s reasons were, in some areas, very briefly stated. But I do not consider them to have been so terse as to obscure the basic thought patterns that led to his conclusions. The parties were not entitled to feel any “sense of grievance that a party does not know or understand why the decision was made”: Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at p.468.

Disposition

54 I would allow the appeal only to the extent of substituting a re-assessment of damages for economic loss in the manner stated in paragraphs [50] to [52] of these reasons and to reflect the agreed Fox v Wood figure of $9,530. Otherwise, the appellant has not shown any reason for departure from the conclusions of the primary judge.

55 The parties should be directed to bring in agreed short minutes accordingly within seven days. If there is no agreement, the appellant should, within 14 days, submit the version for which he contends together with written submissions and the respondent should, within a further 14 days, submit the version for which it contends together with written submissions.

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Last Modified: 12/15/2004