Commonwealth of Australia v Mortlock, G.R

[1993] FCA 438

COMMONWEALTH OF AUSTRALIA v. GARY RONALD MORTLOCK
No. ACTG89 of 1992
FED No. 438
Number of pages - 5
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Higgins(2) and Heerey(3) JJ

CATCHWORDS

Negligence - Quantum of damages - Loss of earning capacity - Appellant injured at work - Substantial but not total incapacity for work found - Degree of incapacity reflected in discounts made of past and future economic loss - Degree of discount within discretion of trial Judge.

HEARING

CANBERRA, 1 April 1993

#DATE 2:7:1993

Counsel for the appellant : Mr I. Curlewis QC

with Mr C. Erskine

Solicitor for the appellant : Australian Government

Solicitor

Counsel for the respondent : Mr R.J.B. St John QC

with Ms P. Burton

Solicitors for the respondent : Pamela Coward and Associates

ORDER

The Court orders that:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES J The Commonwealth of Australia ("the appellant") has appealed to this Court from the judgment of the Supreme Court of the Australian Capital Territory (Miles CJ) given on 4 December 1992 in an action in which Gary Ronald Mortlock ("the respondent") sought damages for personal injury suffered on 24 July 1988 by reason of the alleged negligence of the appellant, his employer. The Supreme Court found that the appellant was liable in damages to the respondent and awarded the respondent the sum of $389,666.27. The appeal relates only to the amount of damages so awarded.

1. The circumstances relevant to the assessment of damages are fully set out in the judgment of the Supreme Court. They are summarised in the judgment to be delivered by Higgins J and need not here be re-stated.

2. Although the arguments presented on behalf of the appellant in support of its contention that the damages awarded are excessive have some attraction, a detailed consideration of the material before the Supreme Court and of the judgment under appeal leaves me unconvinced that there has been reviewable error on the part of the trial judge or that the damages awarded are excessive.

3. In my opinion, the appeal should be dismissed with costs.

JUDGE2

HIGGINS J This is an appeal against the quantum of damages awarded to the respondent on 4 December 1992 by Miles CJ in the Supreme Court of the Australian Capital Territory.

1. Up to 28 July 1984, the respondent had suffered some episodes of back injury. It left him with a weakened lower back. He experienced intermittent lower back pain which was treated satisfactorily by chiropractic intervention.

2. On 28 July 1984, the respondent, whilst assisting to lift a filing cabinet, further injured his lower back. His Honour, the Chief Justice, found that, in the circumstances, the appellant, the respondent's employer, was liable for the consequences of that injury. There was no allegation of contributory negligence.

3. There is no appeal against the finding of liability. The damages awarded are challenged only insofar as damages were awarded for loss of earning capacity.

4. His Honour allowed $75,000.00 for past loss of earning capacity and $250,000.00 for future loss of earning capacity.

5. It is common ground that as at the date of the injury the respondent suffered from a degenerative condition in his back. His Honour found,
   

"If he had not been injured on 28 July 1984, he stood to suffer some similar injury at some time thereafter. When, where, and exactly how

debilitating an injury he might have suffered, could not have been predicted nor can it be

predicted now. It is possible, but unlikely, that he would have continued throughout life without incapacity, or even without symptoms."

As the respondent had already begun to suffer some symptoms, I would take the latter reference to mean "without further or increased symptoms".

1. His Honour referred to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

2. The respondent's date of birth was 15 December 1951. He was educated to third form. He had up to the date of injury worked as a motor vehicle parts salesman and in semi-skilled positions in the construction industry. During 1971 he gained a temporary position with the appellant as a clerical assistant. He was made permanent in 1974. His duties were, mainly, as a courier and driver. In 1984 he became a storeman and purchasing officer.

3. The respondent had suffered a back injury in the course of his duties in 1972. He improved sufficiently to return to his normal duties by March 1973. However, it was recommended that he should be restricted to work not including heavy lifting, a lot of climbing, excessive bending and excessive driving. That restriction was, unfortunately, not communicated to the respondent.

4. There was a subsequent injury to the respondent's left knee. He lost about two months from work. He later injured his right knee and lost a few days. Neither of those injuries seems to have created any lasting problem.

5. Following a period off work after his injury on 28 July 1984, the respondent resumed work on 20 August 1984. He continued working as a courier and driver until 26 August 1986.

6. In March 1985, the respondent was seen by Dr Morris, an orthopaedic surgeon. The respondent's symptoms were then worsening. That worsening was, in Dr Morris' opinion due to the accident of 28 July 1984 and the injuries then suffered.

7. The respondent's back condition worsened significantly in November 1987. He began to lose time from work. In February 1988, Dr Newcombe operated to excise the L5/S1 disc.

8. He reached a "plateau" of improvement after a few months but has remained static since then.

9. The respondent has participated in rehabilitation programs during 1988 and 1989. He returned to a specially structured job in January 1989. His Honour found that to be as follows,
   

"He was permitted to stand or sit as he chose, sorting mail and using a chair and desk that were adjusted to suit him. He was given a break from this work every forty minutes and a bed in a

restroom was provided for him."

1. Nevertheless, the respondent could not cope. His Honour found that notwithstanding this regime,
   

"... his condition became so painful during the day that this time he contacted Dr Howse from

Woden Valley Hospital and was given a cortisone injection in the spine whilst at work."

1. The respondent, however, continued a variety of activities around his home. Film was shown which led his Honour to entertain "considerable doubt" as to the respondent's descriptions of his continuing symptoms and incapacity.

2. His Honour considered it "likely that there is a psychological element in the case."

3. Notwithstanding the doubts expressed, his Honour concluded, having reviewed the medical evidence and having seen and heard the respondent, that he had "substantial incapacity for full-time heavy work and suffers from recurrent back and leg pain".

4. The appellant contends that the finding that the respondent was physically fit for light clerical work necessarily entailed that damages for past and future economic loss should be assessed as if he had been and would continue to be so employed.

5. His Honour's view to the contrary depended on his assessment of the respondent as a man. He found that the respondent lacked the temperament for clerical work and the motivation to engage in it. The former characteristic was part of his personality, the latter was one of the consequences of his injury.

6. Nevertheless, his Honour did not accept that the respondent should be treated as if wholly incapacitated and proceeded to award damages for loss of earning capacity on that basis.

7. I cannot detect any error in that approach. Insofar as it depends on his Honour's assessment of the respondent's character and temperament, I do not think this Court can do other than accept his Honour's view (see Abalos v Australian Postal Commission (1990) 171 CLR 167).

8. It is clear that his Honour found a substantial although not total incapacity for work. He considered it likely that the respondent would suffer substantial periods of unemployment even if he became more motivated to seek work for which he was physically capable.

9. His Honour did not find, as the appellant asserted in its submissions, "that the plaintiff was entitled to damages for loss of earning capacity for the whole of the period from the date of injury until the hearing".

10. The commencing figure accepted was the actual loss of earnings suffered by the respondent. That allowed no damages for the periods for which the plaintiff was employed at his usual rate of remuneration.

11. The actual figure was then discounted by a figure of 27.45%. It seems to me that discount recognises that, but for his lack of motivation for some period of time before trial, the respondent might have had some earnings.

12. The figure for the future was discounted by 37.5%. Again, that discount recognises a substantial but not total incapacity.

13. Those findings seem to reflect, and are consistent with, his Honour's factual findings. The precise discounts were largely in his Honour's discretion. They seem to me to be within the range of that discretion.

14. I would accordingly dismiss the appeal with costs.

JUDGE3

HEEREY J I have read a draft of the reasons for judgment of Higgins J. I agree with those reasons and the orders which his Honour proposes.