Eldridge v FC of T
[1990] FCA 369
•19 JULY 1990
Re: KEITH WILLIAM CHESSELL
And: COMMONWEALTH OF AUSTRALIA
No. N G1223 of 1988
FED No. 369
Negligence - Damages for Personal Injuries
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)
CATCHWORDS
Negligence - claim by soldier for personal injuries suffered in military exercise - inference of carelessness from dropping of heavy load without warning.
Damages for Personal Injuries - disc lesion - allowance of interest upon past economic loss in accordance with principle of Hungerford v. Walker 63 ALJR 210, s. 51A of the Federal Court of Australia Act being inapplicable - interest upon so much of general damages as is attributable to past pain and suffering not allowable apart from s. 51A - evaluation of hypothetical possibilities.
Federal Court of Australia Act 1976, s.51A
Supreme Court Act 1970 (N.S.W.), s.94
HEARING
SYDNEY
#DATE 19:7:1990
Counsel for the applicant: Dr A.S. Morrison
Solicitors for the applicant: Messrs Blessington Judd
Counsel for the respondent: Mr D.G. Staehli
Solicitor for the Respondent: Australian Government Solicitor
ORDER
The respondent pay to the applicant damages in the sum of $465,000.
The respondent pay the applicant's costs of the action.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is a claim in negligence for damages for personal injuries heard in this court on remittal from the High Court of Australia.
The injury for which the applicant sues is a back injury (a ruptured disc at the L5-S1 level) suffered on or about 17 July 1980. At the time of his injury, Mr Chessell was a sapper in the Royal Australian Engineers, having enlisted on 10 October 1979. It was during an army field exercise that a mishap occurred which caused the injury. The sole issue, in respect of liability, between the parties was whether the applicant had established negligence causing his injury on the part of one or more of those involved in the exercise. There was no contention that, in the circumstances, the Commonwealth was not responsible for any such negligence which might be demonstrated. The remaining issues in the case, as it was fought by the parties, related to contributory negligence and the assessment of damages.
Although a number of men took part in the exercise, of whom three were immediately concerned in what happened to the applicant, his was the only account put before me by evidence. I see no reason not to accept it, and indeed, generally, subject to what follows, I thought the applicant's evidence could be relied upon by me. According to the applicant's account, the exercise in question involved the construction and dismantling of what was known as a medium girder bridge, a piece of equipment which plainly enough would be used in a war in forward areas to assist the mobility of the army. The bridge was constructed by the fitting together of prefabricated sections, referred to in the evidence as "panels". Speed would clearly be of the utmost importance in an actual military situation, and the exercise was a timed exercise. After the bridge had been put in place, it was necessary to dismantle it by the removal of the panels and their stacking in a pre-arranged manner on pallets for transport. It was during the dismantling and stacking of the panels on the pallets that the applicant sustained his injury.
Mr Chessell was one of four sappers whose task was to remove, and place on a pallet, particular panels which weighed 175 kilograms. They had to carry the panels some distance by carrying handles or bars inserted at or near the corners, so that each man was bearing a load of about 45 kilograms, although the inequalities of the ground and the incidents of the task must necessarily have caused the load on any one man to be greatly increased from time to time. Co-ordination was ensured by a practice according to which the man at the right rear of the panel, as it was being carried, had the direction of the manner of the carrying and handling of the panel. At the time in question, the applicant was in the left front position, holding the carrying handle in the crook of his elbow.
As the party approached the pallet, and the applicant, who reached it first, stepped up onto it, twisting round a little in order to watch what the others were doing, they suddenly dropped the panel. The applicant, because the handle was held in his bent elbow, could not immediately let go, and, in the very act of attempting to turn in a stooped position, had to bear without warning the full weight of the load. It was at once apparent that he had been hurt, and he received assistance from some of the other men. From that day, he has suffered low back pain, although its intensity has varied, and there have been remissions, so that at times he has been able to perform quite strenuous duties.
The applicant made it clear that he understood one of the other three carrying the panel with him had stumbled, but there is no evidence upon which I could conclude that in fact the dropping of the panel was caused in any particular way. The ground was reasonably level, as one would expect the commander to have ensured it would be, in the immediate vicinity of the pallet. Two things can, in my opinion, be said with confidence. First, all of the party must have appreciated that to carry such a heavy object carelessly would put the others at risk. Secondly, because the ground was not rough and there is no evidence of any outside interference, an inference is open that some carelessness by one or more of the men led to the sudden dropping of the panel. If the inference is indeed open, I am entitled to take into account the fact, as a consideration assisting me to rely on it, that none of the other men was called to give evidence for the defence. Nor was any attempt made to show there was any reason why they could not be called.
Although the ultimate question is one of fact, the principles of law being well established, it is worthy of note that a very similar approach was taken, in relevantly very similar circumstances, by a full court of the Supreme Court of New South Wales in Kakias v. Australian Window Glass Ltd (1964-5) NSWR 1904. In that case, the appellant plaintiff sued his employer in respect of an accident which happened while he was assisting another employee to carry a large sheet of glass. The other employee dropped his end of the load without warning and in unexplained circumstances. Macfarlan J., with whom Jacobs and Taylor JJ. agreed, referred to the defendant's failure to call the other employee, a man named Kollyas, and said at 1907:
"The evidence does not show that the plaintiff was in any way the author of his own injuries. The end he was carrying did not drop, nor did any conduct of his cause Kollyas to drop his end. It was the dropping by Kollyas that caused the glass to break and injure the plaintiff, and the end which he dropped was, so far as the evidence shows, solely under his control. ... It seems to me that when for some unexplained reason a sheet of glass is allowed to fall to the ground, an inference is open that there was some lack of reasonable care in carrying it and that in the absence of a satisfactory explanation, lack of care is a more likely reason for the happening than that it occurred notwithstanding all reasonable care being taken."
Taylor J. at 1908 added to the expression of his agreement with the reasons of Macfarlan J. the comment:
"It was, in my opinion, open to the jury on the evidence to conclude that the manner in which the glass was being carried was one which, if reasonable care is exercised by the men performing the task, results in the glass being transported without mishap.
The fact that, without any fault on the part of the plaintiff, the end being carried by Kollyas fell to the ground, was an accident which the jury could hold was one that did not ordinarily happen if both employees were exercising reasonable care."
In the present case, I am satisfied that the cause of the applicant's injury was, more probably than not, some carelessness on the part of one or more of the other three persons with whom he was carrying the panel. Contrary to another contention urged on behalf of the applicant, I do not think there was anything defective in the system of work, but largely for that very reason, I am persuaded that the sudden dropping of the panel occurred through carelessness on the part of one or more of those who were performing the task.
It was not suggested that the applicant caused the panel to be dropped, nor was there any evidence to support any such suggestion. However, counsel for the respondent did urge that the applicant's manner of carrying the panel contributed to his injuries. In particular, reference was made to the difficulty which holding the carrying handle in the crook of his elbow must have caused when he was placed in a position where he had to let go quickly, and to the fact that he stepped up onto the pallet, which was said to be unnecessary and contrary to the usual course. But there was evidence from the respondent's own impressive expert, Dr J. Olsen, that, from one point of view, it could be said the carrying method adopted by the applicant was safer than carrying the load in his hands, because it would have kept his back straight. So far as concerns the matter of stepping onto the pallet, there was simply no evidence to support the suggestion that this was unnecessary in the particular circumstances. All that was shown was that usually a panel could be placed on the pallet without stepping onto it, although sometimes the loading of the pallet required a sapper to do what the applicant did in this case. On the issue of contributory negligence, the onus is upon the respondent, and I am not satisfied that it has been discharged.
As I have said, it was not suggested that, if I should reach these conclusions, there was any other reason why judgment should not be entered for the applicant. Accordingly I turn to the issue of damages.
The applicant was born in Wagga Wagga on 15 January 1955, so at the time of his injury he was aged 25 years. Prior to his enlistment at the age of 24, he had worked as a factory hand, as an electrician's assistant, in the dark room of a photography business, and as a courier. He had sat for the higher school certificate before leaving school, but his academic results were not promising. He passed in four subjects only - science, agriculture, geography and farm mechanics - all of which he had taken at the lowest level of entry. When, however, Mr Chessell joined the army, the evidence suggests he found his metier. The Commonwealth does not dispute his claim that he would, if he had not been injured, have progressed approximately in accordance with the following career path: corporal by December 1983; sergeant by December 1987; warrant officer class two by December 1991; and warrant officer class one by December 1995. Warrant officer class one is the highest non-commissioned rank.
The applicant's principal problem has been low back pain, although he has also had some symptoms referred to the left leg. On the basis of CT scans and discograms, a definite diagnosis has been made of L5-S1 disc protrusion. I have no hesitation in accepting medical evidence that, when the panel was dropped, Mr Chessell suffered a disc lesion. He also complains of a residual ache in his left knee and left shoulder; but these do not appear to involve serious problems, and there is little evidence linking them to the same incident. Dr Drew Dixon, the treating orthopaedic surgeon, has expressed the view, based on the disc lesion, that "it would be unlikely that he would be able to do manual work." In the report of another orthopaedic surgeon, Dr David Bornstein, it is stated:
"The patient is almost certain to come to surgery to get relief and I would recommend a disc excision and spinal fusion be performed at the same sitting.
He is unfit for manual work and certainly unfit for work involving bending and lifting. He is probably fit for some clerical type work but it would most likely be difficult for him to concentrate for any length of time due to increasing discomfort in his back during the course of a working day. Surgery should relieve most of his discomfort but would never return him to manual type work and I would permanently restrict him to clerical type duties."
Dr Bornstein estimated that surgery would involve probably nine months absence from work. Dr Dixon had indicated that the hospitalization would probably last for 21 days at a daily rate of $400 per day together with surgical and other associated fees and costs totalling about $3,000 to $3,500. The applicant himself is plainly reluctant to have major spinal surgery, which was discussed with him by Dr Dixon at least as far back as five years ago. I think it is probable, but by no means certain, that he will in fact ask for surgery. If he does ask for it, he is likely to do so within about the next year or 18 months. I estimate the prospects of his having surgery at 65%; and I shall allow a sum of $7,000 (in respect of the future cost of it) for this contingency, as well as taking the prospect of the operation into account in assessing future economic loss. I note that he was "strongly advised" in January 1986 by a Dr Heise (a general practitioner) to proceed to surgery on the basis of two specialist recommendations including that of Dr Dixon, but remained unwilling to commit himself. However, his CT scan at that stage showed only "a small posterior protrusion of the L5-S1 disc", whereas a more recent CT scan showed "a large left L5-S1 disc herniation ... compressing and displacing the left S1 nerve root".
Various other medical opinions have been placed before me, but I do not find it necessary to discuss these in detail. They do not lead me to doubt that the applicant's disc lesion was caused by the incident in respect of which this action has been brought, or that its consequences have been in the main fairly indicated in the reports of Dr Dixon and Dr Bornstein. Psychiatric opinion only confirms that the applicant is suffering the natural sequelae of his disability.
Between 19 July 1980 and 5 March 1985, the applicant attempted to pursue his career in the army, although severely handicapped by the consequences of the injury. He was admitted to hospital on four or five occasions during this period, and was placed at times on light duties. In about April 1981, his classification was changed from that of a field engineer to that of an engineer storeman. His fitness was progressively downgraded until he was declared medically unfit on 14 December 1984. However, it is clear that he also had extensive remissions during which he was able to carry out the duties of a fit and active man, and even to excel in the performance of some tasks. He was promoted to lance-corporal and acted as corporal. Nevertheless, his medical condition finally forced his discharge from the army on medical grounds on 5 March 1985.
After leaving the army, the applicant attempted to turn a hobby to account by becoming a lapidary. However, he found the exacting nature of this work caused him back pain, and he gave it up. He then tried to work with coloured glass, but was again troubled by back pain, and looked for something else to do. On 17 July 1986, he obtained work for a security firm in the capacity of a concierge. He did this work for about 15 months, but not full time. During the same period, he read a book about scientology and began attending meetings of the Church of Scientology. He became a course supervisor, and has now almost completed his training for the ministry of that sect. Since leaving the security work he has not engaged in any other paid employment. He is presently paid by the Church of Scientology an amount of about $20 per week, and expects this sum to increase to over $100 per week upon his becoming a minister.
The applicant complains of the regular experience of pain, and of difficulty sleeping. He wears a brace. He says that on some mornings, particularly cold mornings, he is prevented from getting up until a late hour by reason of pain. He experiences symptoms when required to sit in the one position, as for instance at a picture theatre. He has difficulty with stairs and travelling on buses, and walking on uneven ground is a problem.
I should make it plain that I accept the applicant's complaints, in general terms. I think it is very difficult, however, to assess the severity of the symptoms of which he gives evidence. The applicant has now had his injury for a very long time, and has persistently put off a surgical remedy, which was available to him, over the past five years. I have every sympathy with his reluctance to undergo such a major operation, but, taking the whole of his history into account, I think it is fair to conclude that he does not usually suffer from an extreme degree of back pain. I think his disability is real and has had a gravely disturbing effect upon his capacities, and consequently upon his lifestyle, causing his discharge from the army, but it has not rendered him generally incapable of carrying out light forms of work.
It is agreed that the damages should include an amount of $2,532.04 in respect of medical expenses paid by or on behalf of the Commonwealth but refundable out of a verdict, and a further amount of $2,567.44, being medical expenses outstanding and payable by the applicant, making a total of $5,099.48. To this the applicant seeks to add, in respect of loss of earning capacity for the past, the calculated sum of $63,604 plus interest of $21,535, a total of $85,139. This amount is claimed on the basis of an estimation of the net earnings the applicant would have earned, if uninjured, less what he has in fact earned to the date of the hearing. There is no quarrel with the rate of interest adopted (though an argument of law is raised that I may not allow interest at all in this case - an argument to which I will come shortly), but the respondent says that the sum of $63,604 should be reduced on the footing that the applicant's failure to earn during at least part of the period in question was not solely due to his disabilities, but was a matter of choice.
I have reached the conclusion that the applicant cannot be allowed the full amount of his claim for past economic loss. I think he has shown a continuing loss of earnings was suffered by him as compared with what he would have earned if uninjured; but I think the extent of that loss has been exaggerated by his choice to work for quite substantial periods of time for the extremely low remuneration paid by the Church of Scientology. He could, in my opinion, at least have earned the sums which he earned in the employ of the security firm. However, as against that, I think it was reasonable for a man in his condition to seek such comfort and support as might seem to him to be available through the Church of Scientology and, for that purpose, in all the circumstances, to take some time off from work for a period. On this basis, I shall deduct the sum of $10,000 only, allowing the sum of $53,604 in respect of loss of earning capacity for the past.
The argument of law concerning the allowance of interest upon damages in relation to the past must now be considered. It bears upon two questions: whether I can allow an appropriate amount of interest upon the sum awarded for past loss of earning capacity, and whether I can allow an appropriate amount of interest upon so much of the general damages, to be awarded by me, as relates to the consequences of the applicant's injury which have already been felt by him during the period up to the present time. The difficulty is that s.51A of the Federal Court of Australia Act 1976, which would, at the present time, usually be applicable in such a case, is not here applicable because of the antiquity of the cause of action. Section 51A is limited to causes of action arising after its commencement, ie 22 November 1984: Centrepoint Freeholds Pty Ltd v. Lucas (TN) Pty Ltd (1985) 60 ALR 187 at 204. Section 79 of the Judiciary Act 1903 does not enable me to resort to s.94 of the Supreme Court Act 1970 (NSW): State Bank of New South Wales v. Commonwealth Savings Bank of Australia (1986) 67 ALR 123; Bell v. Australian Eagle Insurance Company Limited (unreported Burchett J. 30 May 1990) where I collected a number of the authorities.
But the applicant relies on Hungerfords v. Walker (1989) 63 ALJR 210 for the proposition that interest can be allowed as damages quite apart from a statutory provision such as that contained in s.51A. It is plain that this is so, but the principle is not an unlimited one. The joint judgment of Mason C.J. and Wilson J. (at 210) refers to "the loss of the use of money which the plaintiff paid away and lost as a direct consequence of the defendant's breach of contract or negligence." It draws (at 216) a distinction between "the withholding of moneys due to the defendant's wrong" and "the late payment of damages". This distinction is illustrated by the two heads of damage in respect of which the applicant seeks an allowance of interest in the present case. If interest were allowed upon lost earnings, it would indeed be payable in respect of moneys withheld from the applicant as a result of the defendant's wrong; however, the allowance of interest in relation to so much of general damages as may be attributable to pain and suffering endured in the past could only be justified as an award of compensation for the late receipt of recompense, which was due at the time the suffering was endured, but is only now assessed by the court. The joint judgment (at 218) states:
"Although the admiralty model has obvious attractions, the common law has steadfastly declined over a very long time to adopt the admiralty approach in awarding compensation for late payment of damages in the general run of cases. But we see no reason for allowing the reluctance of the common law to extend to cases where the defendant's breach of contract or negligence has caused the plaintiff to pay away or the defendant to withhold money and, as a result, the plaintiff has been deprived of the use of the money so paid away or withheld. The recovery of compensation for the loss may be ascribed to the operation of the second limb in Hadley v. Baxendale. However, we would prefer to put it on the footing that it is a foreseeable loss, necessarily within the contemplation of the parties, which is directly related to the defendant's breach of contract or tort.
(These observations were made in a case involving a claim in contract, but were expressly extended to include a claim in tort.) In the other joint majority judgment, that of Brennan and Deane JJ., general agreement was expressed (at 219) with the reasons given by Mason C.J. and Wilson J. Brennan and Deane JJ. added:
"There is, in our view, a critical distinction between an order that interest be paid upon an award of damages and an actual award of damages which represents compensation for a wrongfully caused loss of the use of money and which is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money or which was in fact paid upon borrowings which otherwise would have been unnecessary or retired. On the one hand, there is no common law power to make an order for the payment of interest to compensate for the delay in obtaining payment of what the court assesses to be the appropriate measure of damages for a wrongful act. If such interest is to be awarded at common law, it must be pursuant to statutory authority. On the other hand, there is no acceptable reason why the ordinary principles governing the recovery of common law damages should not, in an appropriate case, apply to entitle a plaintiff to an actual award of damages as compensation for a wrongfully and foreseeably caused loss of the use of money. To the extent that the reported cases support the proposition that damages cannot be awarded as compensation for the loss of the use of a specific sum of money which the wrongful act of a defendant has caused to be paid away or withheld, they are contrary to principle and commercial reality and should not be followed."
In my opinion, it follows from these statements of the law that the applicant is entitled to a sum representing interest calculated upon lost earnings, but is not entitled to any sum representing interest calculated upon so much of the general damages, to be awarded by me in this case, as relates to past pain and suffering and loss of enjoyment of life. Although the sum of $21,535, already mentioned, was calculated upon a past economic loss of $63,604, I have taken this into account in fixing the amount of the deduction of $10,000 previously referred to, and shall accordingly allow in the calculation of damages the whole of the amount of $21,535.
I shall now consider the sum appropriate to compensate the applicant for his loss of earning capacity which would have been exercised in the future. For this purpose, figures have been placed before me reflecting the applicant's probable career path in the army, had he not been injured, up to the age of 55 years. So much is fairly straightforward, but at that age he would have had to retire from the army, and it is much less clear what his further working future would have been. Any allowance for lost earnings between the age of 55 and the normal retirement age of 65, or even beyond that age, would require significant discounting for contingencies and for the early receipt of moneys which would in the normal course have been received over a period commencing far in the future.
In this case, the assessment of the applicant's residual earning capacity is peculiarly difficult. On top of the usual problems, there is the doubt whether he will undergo spinal surgery; and, if he does choose to submit himself to surgery, the effects upon his future earning capacity will of course vary enormously according to the date of surgery (which may possibly be deferred for a long time), and according to its results. As I have said, I think it is probable the applicant will have surgery, and that it will be sooner rather than later, but there are significant possibilities that matters will turn out differently. Doing the best that I can to evaluate the possibilities (see Malec v. J.C. Hutton Pty Ltd (1990) Aust. Torts Reports 67791 at 67793, per Brennan and Dawson JJ.), I think the award should be made on the footing that the applicant will generally be able to earn by light to moderate work, particularly work which is not too demanding, of a clerical or administrative type. His educational attainments do not qualify him for more difficult, and therefore more remunerative, clerical positions. I think, also, the award should take account of the likelihood that his disabilities will result in periods of unemployment, and of the prospect of time off work by reason of surgery.
The evidence offers some guidance concerning the wages available for work of the kind which I think the applicant could do, though the figures put before me in detail were provided by the respondent, and relate to public service positions. The onus, of course, is upon the applicant to prove his loss. While the figures I have mentioned could be said to justify the selection of a higher amount, I think it is appropriate, allowing for the various contingencies, to take for the purposes of calculation a figure of $200 per week, net of tax, as representing the applicant's residual earning capacity.
Accounting evidence was led that the present value of the earnings the applicant would have received up to age 55, had he been uninjured and on the basis that he would have obtained the promotions already referred to, is $392,531. It is necessary to adjust this figure to take account of the residual earning capacity which I have been discussing. I think it is appropriate, having regard to the present value of $200 per week to be received over a period of 20 years, to deduct the sum of $150,000 from the calculated figure put forward on behalf of the applicant.
Something should then be added back in to allow for loss of earning capacity during the years which, in the normal course, will remain to the applicant after he reaches the age of 55. I think it is unlikely that he would in any case, at that stage of his life, have undertaken strenuous work following his retirement from the army. There is much to be said for the respondent's contention that no measurable loss of earning capacity for this period has been demonstrated, and that the applicant would probably have earned after his retirement from the army at about the rate which he will probably be capable of earning in his residual state during those years. However, I think the better approach is to estimate his position, at that stage, on the footing that he would have earned substantially less than his army earnings after his retirement, but still somewhat more than he will now be able to earn. There is no doubt he will still be more limited in the avenues open to him than he would have been but for his injury. On this basis, and recognizing that the result is far from the precision of a calculated figure, I propose to allow the sum of $25,000. I find some support for the making of such an estimation in the statement of Brennan and Dawson JJ. in Malec (ubi cit. supra): "Damages founded on hypothetical evaluations defy precise calculations."
The most significant aspect of the case, in my opinion, from the point of view of general damages for pain and suffering and the loss of the amenities of life, is the youth of the applicant at the date of this severe and permanent injury, which has been demonstrated objectively by CT scans and by discograms. His chosen career (and he has shown no comparable aptitude for any other) has been denied him. Even if surgery is performed and is successful, he will never recover his physical integrity. He has already endured a good deal of pain over a period of ten years, as well as the disappointment of his hopes for the future. I have earlier drawn attention to the fact that he has been fortunate in having substantial remissions, but Mr Chessell's personal loss has been very serious. Both counsel submitted ranges of figures as appropriate to reflect this loss, and I have concluded that the proper sum is $110,000.
The figures at which I have arrived in these reasons are thus the following:
$ Out-of-pocket expenses 5,099.48 Allowance for the probable
contingency of spinal surgery 7,000.00 Past loss of earnings (including
allowance for interest -
$53,604 + $21,535 75,139.00 Damages for the loss of future
earning capacity ($392,531 -
$150,000 + $25,000) 267,531.00 General damages for pain and
suffering and loss of amenities 110,000.00 TOTAL $464,769.48
Having considered that total, and bearing in mind the inexactness of the estimates involved in it, I think the proper award is a rounded figure of $465,000. There will be judgment for the applicant for that sum, plus costs.
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