Duval v Pederson
[2005] WASCA 39
•10 MARCH 2005
DUVAL -v- PEDERSON [2005] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 39 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:145/2003 | 18 FEBRUARY 2005 | |
| Coram: | ROBERTS-SMITH JA MCLURE JA PULLIN JA | 10/03/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN ANTHONY DUVAL GLEN PEDERSON |
Catchwords: | Tort Personal injuries Damages Loss of earning capacity |
Legislation: | Nil |
Case References: | Duval v Pederson [2003] WADC 197 House v The King (1936) 55 CLR 499 Husher v Husher (1999) 197 CLR 138 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Miller v Jennings (1954) 92 CLR 190 Trigwell v Trigwell (1997) 18 WAR 83 Watts v Turpin (1999) 21 WAR 402 Wilson v Peisley (1975) 50 ALJR 207 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Cawrse v Cocks (1974) 10 SASR 10 Cullen v Trappell (1980) 146 CLR 1 Graham v Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205 Mann v Ellbourn (1974) 8 SASR 298 Paff v Speed (1961) 105 CLR 549 Paul v Rendell (1981) 34 ALR 569 Bresatz v Przibilla (1962) 108 CLR 541 Teubner v Humble (1963) 108 CLR 491 Thomas v O'Shea (1989) A Tort Rep 80251 Whitaker v Rogers (1990) A Tort Rep 81062 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUVAL -v- PEDERSON [2005] WASCA 39 CORAM : ROBERTS-SMITH JA
- MCLURE JA
PULLIN JA
- Appellant
AND
GLEN PEDERSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : DUVAL -v- PEDERSON [2003] WADC 197
File No : CIV 2515 of 2001
Catchwords:
Tort - Personal injuries - Damages - Loss of earning capacity
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr I L K Marshall
Respondent : Mr D R Sands
Solicitors:
Appellant : Ilberys
Respondent : Talbot & Olivier
Case(s) referred to in judgment(s):
Duval v Pederson [2003] WADC 197
House v The King (1936) 55 CLR 499
Husher v Husher (1999) 197 CLR 138
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Miller v Jennings (1954) 92 CLR 190
Trigwell v Trigwell (1997) 18 WAR 83
Watts v Turpin (1999) 21 WAR 402
Wilson v Peisley (1975) 50 ALJR 207
Case(s) also cited:
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Cawrse v Cocks (1974) 10 SASR 10
Cullen v Trappell (1980) 146 CLR 1
Graham v Baker (1961) 106 CLR 340
(Page 3)
Griffiths v Kerkemeyer (1977) 139 CLR 161
Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Mann v Ellbourn (1974) 8 SASR 298
Paff v Speed (1961) 105 CLR 549
Paul v Rendell (1981) 34 ALR 569
Bresatz v Przibilla (1962) 108 CLR 541
Teubner v Humble (1963) 108 CLR 491
Thomas v O'Shea (1989) A Tort Rep 80251
Whitaker v Rogers (1990) A Tort Rep 81062
(Page 4)
1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons of Pullin JA. I agree with his Honour's reasons and conclusions.
2 There was unchallenged evidence from the appellant that by the time of the 2001 accident he had rehabilitated himself to a greater extent than had been anticipated at the time the claim in respect of his 1988 accident was settled. Whether that was the principal factor going to his earning capacity for the purposes of his claim in respect of the 2001 accident, or was to be weighed in conjunction with an earlier loss of earning capacity less than that found by the trial Judge, probably is of no great moment. Either way, the result was that the appellant's loss of earning capacity was more than the level at which the trial Judge assessed it. Nonetheless, for the reasons given by Pullin JA, the appellant has not demonstrated on the evidence a degree of financial loss suffered which is appreciably higher than that which was assessed by his Honour. The question on an appeal is not whether the Appeal Court would have awarded more, but whether the award made by the trial Judge is shown to have been vitiated by some identifiable error of fact or law, or is so far out of mind with what would necessarily have been the proper award, as to indicate the assessment must have miscarried (House v The King (1936) 55 CLR 499, 505; Miller v Jennings (1954) 92 CLR 190, 196; and Wilson v Peisley (1975) 50 ALJR 207, 209, 214). None of these has been shown here.
3 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts-Smith and Pullin JJA. I agree that the appeal should be dismissed for the reasons they give.
4 PULLIN JA: The appellant, Mr Duval, was injured in an accident on 19 June 2001 ("2001 accident"). He sued the respondent for damages and was awarded $125,103. He complains that the award is inadequate.
5 Mr Duval had previously been injured in an accident on 25 May 1988 ("1988 accident"). Mr Duval was born on 24 March 1959. He is married and has three children. Mr Duval left school at the age of 15. He has no formal vocational qualifications.
The 2001 Accident
6 The respondent was working as a tree lopper near to Mr Duval's house. Due to the respondent's negligence, his trailer hit a cable stay wire attached to a power pole. This resulted in the power pole breaking and falling onto Mr Duval's metal perimeter fence. Powerlines rested on the fence. Mr Duval suffered an electric shock and was injured when he
(Page 5)
- touched the fence. He was taken to Royal Perth Hospital by ambulance. There is no dispute that this accident caused serious injuries which destroyed any capacity he had for future work.
The 1988 Accident and Litigation
7 In 1988 Mr Duval was employed as a night fill manager at a supermarket. On 25 May 1988 he injured his back when attempting to move a pallet of cool drinks with a pallet jack. The pallet jack released suddenly causing the plaintiff to fall backwards and strike his back on a door handle. As a result of injuries suffered in that accident Mr Duval saw Mr Michael Lee, a neurosurgeon. Mr Lee carried out surgery on Mr Duval's back in 1990 and 1991. Mr Duval's evidence was that following the surgery he made a good recovery which took approximately 2 years but he continued to suffer some right sciatica. As a result Mr Duval applied for and received a part disability pension in 1991 and he was still in receipt of that pension at the time of the 2001 accident. This followed certification by "Commonwealth medical specialists" that he was permanently disabled (AB 364).
8 In 1991 Mr Duval commenced action in the District Court against his employer. In that action he claimed that as a result of the injury to his back on 25 May 1988, he suffered from severe low back pain, severe sciatica in the right leg, limitation of lumbar movement, loss of lumbar lordosis, marked restriction of straight leg raising on the right and bouts of insomnia, depression and irritability. Mr Duval claimed that the injury suffered in 1988 rendered him unfit for work as a night fill manager and that he was "not an economically employable proposition to any prospective employer in respect of any retrained work capacity he may have". This action did not go to trial. Mr Duval and the defendant in that case settled the claim by the defendant agreeing to pay Mr Duval $125,000 "exclusive of any repayment to the Department of Social Security and Medicare", special damages of $8543.60 and costs. The reasons why the case was settled are not known and how the sum of $125,000 was arrived at is not known to this court and were not known to the trial Judge in this case.
Mr Duval's medical history and relevant events between the 1988 accident and the 2001 accident
9 His Honour set out details of Mr Duval's medical history and other relevant events between the 1988 accident and the 2001 accident in [52] to [69] of his reasons for decision (Duval v Pederson [2003] WADC 197). There is no need for me to repeat what is set out in those paragraphs. I
(Page 6)
- observe that he suffered many complaints during that period and that he tried, with limited success, to run two businesses, that he made two applications for a disability support pension, and that in the opinion of his general practitioner it was thought that Mr Duval "might be able to go back to non-labouring jobs". Counsel for Mr Duval agreed that in the 13 years between the two accidents Mr Duval worked in his own business and as an employee for less than two years. In relation to one of the businesses - Kwinana Outdoor Nursery - he claimed that he ran the business for 10 months but when shown paperwork in cross-examination, he agreed it had run for only from 1 September 1993 to 10 January 1994 (AB 89). For the three or four years before the 2001 accident Mr Duval worked at home performing home duties. He had three young pre or teenage children who had to be looked after and cared for while his wife went to work. The evidence was that Mrs Duval was capable of earning more than Mr Duval, so she went to work and Mr Duval looked after the family. He gave uncontradicted evidence that when his youngest child went to high school, he planned to go back to work.
The consequences of the 2001 Accident
10 I have already described the injuries suffered and the immediate treatment.
11 His Honour concluded as follows:
"81 I accept that as a result of the accident on 19 June 2001 Mr Duval's right sided sciatica has been made worse than it was before the accident, that he continues to suffer from panic attacks which he suffered before the accident and that he now suffers from left sided sciatica, difficulty maintaining erections, tension headaches and pain at the top of his back, in his thoracic spine and in his low back. The low back pain existed before the accident but has been made worse.
82 Mr Duval now uses a cane to walk. Due to his sciatic pain he is unable to sit or stand for lengthy periods. For approximately four years prior to the accident on 19 June 2001 Mr Duval performed the bulk of the work required to be done at home and his wife worked full-time. Since the accident Mr Duval has been unable to perform the work required at home.
(Page 7)
- 83 Mrs Duval continues to work. She also does work at home such as cooking. She is assisted by her mother, Mrs Annie Brukkers.
84 In the opinion of Dr Philip Finch, a medical practitioner who practises in pain management, the accident on 19 June 12001 exacerbated Mr Duval's pre-existing problems. Mr Duval has become unfit and deconditioned and has put on weight due to lack of exercise. Mr Duval appears unfit for work and should probably consider early retirement.
85 Mr Andrew Harper, an occupational physician, has assessed Mr Duval as totally incapacitated for all forms of gainful employment currently and for the foreseeable future. Mr Harper attributes Mr Duval's disability to the accident on 19 June 2001. Mr Harper did not see Mr Duval until after that accident. The history that Mr Duval provided to Mr Harper when he first saw Mr Harper on 2 May 2002 was that prior to the accident he was 'as fit as a mallee bull'. I have summarised Mr Duval's condition before the accident. It is clear that Mr Duval did have significant restrictions prior to the accident on 19 June 2001. In my view Dr Finch's assessment that the accident exacerbated Mr Duval's pre-existing problems is a more accurate assessment than that of Mr Harper.
86 Mr Duval now has significant pain and restrictions in his activities and his enjoyment of life. While he did have limitations before the accident on 19 June 2001 they did not prevent him in engaging in physical activities such as playing cricket and coaching children's sport. The pain suffered by Mr Duval since the accident is significantly greater than it was before the accident. The injuries suffered by Mr Duval have caused him to suffer from a condition which has been diagnosed by Dr Peter Shannon, psychiatrist, as being an adjustment disorder with anxiety and features of anger. Mr Duval had difficulties in adjusting to his accident on 25 May 1988 and had consulted Dr O'Connell, psychiatrist, in January 1992. Mr Duval's psychological condition now is significantly worse than it was before the accident in 2001.
(Page 8)
- 87 I assess Mr Duval's non-pecuniary loss as a result of the accident on 19 June 2001 as being 20 per cent of the most extreme case and his award for general damages is therefore $49,100."
Damages - Loss of earning capacity
12 At [92] his Honour made a finding concerning Mr Duval's pre-accident earning capacity. He said:
"Mr Duval's very low income from employment or business in the year preceding the accident on 19 June 2001, his injuries suffered on 25 May 1988, his pre-accident medical conditions, the fact that he had not been in paid employment or business for four years prior to 19 June 2001 and had commenced receiving a disability pension in 1991 lead me to the conclusion that Mr Duval had very limited earning capacity prior to the accident on 19 June 2001. I estimate his pre-accident earning capacity as being 15 per cent of the adult minimum wage. It was agreed that the adult minimum wage is $448.40 gross, $376.40 after tax, per week. As a result of the injuries suffered in the accident on 19 June 2001 Mr Duval has lost his pre-accident earning capacity."
Grounds of appeal
13 Mr Duval appeals on the following grounds:
"1. The learned Trial Judge erred in making an award of damages which was well below an amount which would be awarded had the learned Trial Judge exercised sound discretionary judgment.
2. The learned Trial Judge erred in failing to make an adequate allowance for loss of earning capacity both past and future.
3. The learned Trial Judge failed to give any or any sufficient weight to the evidence that:
(a) the Appellant's (Plaintiff's) pre-accident condition was such that he was functioning satisfactorily in all facets of his life;
(Page 9)
- (b) the role of the accident was to cause fresh injuries and, in addition, aggravate or exacerbate his pre-existing condition to such an extent that he was no longer able to cope with his pre-accident activities;
(c) the Appellant (Plaintiff) started and worked full time at a nursery business in Kwinana from 1 September 1993 to 10 January 1994; thereafter worked for seven months as a manual labourer at a business which manufactured outdoor furniture; in early 1997 acquired and worked in a gardening service/landscaping business;
(d) prior to the accident on 19 June 2001 participated in sports and in coaching children's sport.
- 4. The learned Trial Judge erred in assessing the Appellant's (Plaintiff's) pre-accident earning capacity as being 15% of the Adult Minimum Wage.
5. The learned Trial Judge erred in giving too much weight to the Appellant's (Plaintiff's) accident of 25 May 1998 as its consequences were not such as to be severely disabling prior to the accident of 19 June 2001 and the Appellant (Plaintiff) was able to functions satisfactorily in all facets of his life.
6. The learned Trial Judge erred in failing to apply the principle that the Respondent (Defendant) had to 'take his victim as he found him' namely, a vulnerable person who, when subjected to the accident sustained significant disability as not only did he suffer fresh injuries but also his pre-existing condition was aggravated or exacerbated.
7. The learned Trial Judge having found that the accident caused fresh injuries and also made the right sided sciatica and low back pain from the 1998 (sic) accident worse, failed to give sufficient weight to the role of the accident in disabling the Appellant (Plaintiff) and being responsible for significant loss of earning capacity.
8. The learned Trial Judge erred in concluding that the Appellant (Plaintiff) had significant restrictions prior to
(Page 10)
- the accident of 19 June 2001 as although there were some restrictions it did not prevent him from doing heavy physical work, playing football and cricket and coaching children's sport. The effect of the accident of 19 June 2001 was to bring about significant restrictions to the Appellant (Plaintiff) who was functioning satisfactorily prior to the accident."
14 The question as to whether a plaintiff has suffered actual or potential financial loss as a result of reduced earning capacity raises a question of causation. The question is whether the negligence of the respondent which resulted in Mr Duval's injuries, and the consequential loss of earning capacity was a cause of the financial loss that Mr Duval claims he has suffered. See Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Trigwell v Trigwell (1997) 18 WAR 83. So if Mr Duval was no longer able to work and lost a substantial part of his earning capacity as a result of the 1988 accident, then the 2001 accident cannot be said to have caused that loss. His Honour correctly directed himself on the law at [91] of his reasons for decision.
Consideration of His Honour's reasons for decision
15 His Honour concluded in [85] of his reasons that Mr Duval had "significant" restrictions prior to the 2001 accident. He concluded at [92] that the result was that he "had very limited earning capacity" prior to the accident on 19 June 2001. As a result, the loss of his residual earning capacity in the 2001 accident produced a limited loss which his Honour concluded should be assessed as being 15 per cent of the adult minimum wage.
16 The grounds of appeal complain about those two conclusions. The appellant admits that he had restrictions before the 2001 accident, but points to other findings made by his Honour, and other evidence which expands those findings, as being inconsistent with his Honour's conclusions.
17 At [86] it can be seen that his Honour found that the limitations he had before the 2001 accident did not prevent him from "engaging in physical activity such as playing cricket and coaching children's sport".
18 In fact, the evidence was much stronger than this. In the 1990s Mr Duval had carried out work which involved chopping firewood, mowing lawns and playing indoor cricket.
(Page 11)
19 At AB 62-63 he gave evidence as follows:
"Could I just move on please to another area? Prior to this accident could you tell the court of any sporting hobbies or recreational activities that you were involved or engaged in prior to June 01?---I was coaching the kids, which I have been at East Maddington Primary School for the past 8 years.
What were you coaching them at?---Soccer, football, Kanga cricket. I actually took them on their bus trips, coached them during the afternoon. Even when I owned Kwinana Outdoor Nursery I'd still stop, had the time, coach them after work. I was playing super league indoor cricket. I was umpiring. I was playing twice - two or three times a week at indoor cricket, playing tennis on Saturday.
When team were you in? Who were you playing for in indoor cricket, when team?---I was playing for - I'm not allowed to say - 'Who gives a' - it's - - -
Whereabouts did the indoor cricket take place?---I thought you mean the name of the side. The indoor cricket was at Fitzpatricks and at Thornlie Indoor.
You say you played twice a week?---I'd probably play two games a night, sir.
How long had you been engaged in indoor cricket?---The past 10 years.
Did you have any success at it?---Yes, sir, I have.
In what way?---Taken super league trophies, A-grade trophies. Not only that, but the biggest thing of all was actually coaching my youngest bloke's teams, the under 8s and under 9s, to victory.
Apart from coaching - this is before your electrocution accident - apart from the coaching and the sport you were involved in, you said you played tennis. Where did you play tennis?---We played tennis up at the Gosnells tennis courts there and we also played over in another one which we sort of changes the venues on. We played at Mandurah. When we went away on the weekend to do fishing and stuff we'd also play up there as well.
(Page 12)
- How often did you play tennis in the summer?---We actually played in the winter, sir, all the way through. It didn't matter, rain, hail or shine, it was every Saturday or Sunday."
20 This evidence and his Honour's findings about his ability to engage in these sporting activities and his evidence that he was able to work for four years performing house duties to maintain the family and was able to carry out the types of employment referred to above, albeit for short periods of time, does indicate that he had in my opinion, more than a "very limited" earning capacity.
21 The question is, though, whether the accident was therefore productive of financial loss. As was said by Malcolm CJ in Watts v Turpin (1999) 21 WAR 402 at 413 the evaluation of damages for loss of earning capacity is necessarily hypothetical but "it must be based on evidence and that evidence begins with income figures before the accident". In this case the only evidence of any income between the two accidents was from tax returns showing that he earned only $62 in the year ended 1997 and $784 in the year ended 30 June 1998. He did claim that he earned cash when he mowed laws for a few months but agreed that expenses of the business meant that he made no profit. This evidence suggests that although he lost earning capacity as a result of the 2001 accident it was not productive of loss. I do bear in mind however, that in Husher v Husher (1999) 197 CLR 138 the High Court gave a warning about making an assessment based entirely upon what a worker earned in the past. Gleeson CJ, Gummow, Kirby and Hayne JJ in that case, said at 143:
"What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost though diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity."
22 In this case Mr Duval did offer two reasons why he did not work for long periods earning income between the two accidents. The first reason
(Page 13)
- was that for the three or four years before the 2001 accident it was necessary for someone to be the parent at home with the children and, because his wife was capable of earning more than he was, and because she was in employment, she worked and Mr Duval stayed at home. He said that he intended going back to work after the children grew up. This reason does provide a satisfactory explanation as to why he was not able to produce income figures for the three or four years before the accident. There was a second reason offered which was that employers were loathe to employ him because of his pre-existing back injury as a result of the 1988 accident. In my opinion this second reason does not assist Mr Duval to support his claim in relation to the 2001 accident. If he was unable to work and earn income for that reason, the loss does not flow from the 2001 accident. It was a loss caused by the 1988 accident and it would have continued to cause him loss.
23 I agree with the appellant's submission that the restrictions Mr Duval had prior to the 2001 accident were not as serious as the trial Judge seemed to intimate and which then emerged as a conclusion in his Honour's reasons for decision in [92] that Mr Duval "had very limited earning capacity prior to the accident on 19 June 2001". A man who can chop firewood, can play tennis on a regular basis, can play indoor cricket, play football and work mowing several lawns per day is likely to have had more than a "very limited" earning capacity.
24 Mr Duval's difficulty though is in the next step of establishing that this loss of earning capacity was productive of financial loss. As I have pointed out, Mr Duval satisfactorily explained why there is no evidence of earnings in the four years before the 2001 accident. He also explains satisfactorily why there was no income producing work in the years after the 1988 when he was recuperating from the accident and the operations on his back. However, in the four to six years between 1991 (or 1993) to 1997 he worked for less than two years and earned income of less than $1000. When he did look for work from employers, he was turned away because of employers' concerns about the consequences of the 1988 accident. This the only material on which his Honour could base his assessment of financial loss. His Honour was therefore left to make the best assessment he could.
25 So, even if Mr Duval's loss of ability to work, ie his loss of earning capacity, was greater than 15 per cent, the financial loss that flowed from that loss of earning capacity was slight indeed and so his Honour made an assessment as best he could, weighing up the material that he had before him. For my part I cannot say that his Honour fell into error in calculating
(Page 14)
- his economic loss at 15 per cent of the adult minimum wage. In short he lost an earning capacity that in the past he had not successfully exploited and which his Honour by his assessment must have concluded would not be successfully exploited in the future. As a result, I would dismiss the appeal.
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