Ford Motor Company of Australia Ltd v Mann
[2001] VSCA 177
•16 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7095 of 1999
| FORD MOTOR COMPANY OF AUSTRALIA LTD (ACN 004 116 223) | Appellant |
| v. | |
| WAYNE T. MANN | Respondent |
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JUDGES: | CHARLES, CALLAWAY and BUCHANAN, JJ.A | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 March 2001 | |
DATE OF JUDGMENT: | 16 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 177 | |
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Damages – Personal injury – Employer and employee – General damages – Future economic loss – Assessment by trial judge alone – Onus on plaintiff to establish factual basis of award – Mere conjecture insufficient – Verdict for excessive amount
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Ruskin, Q.C. | Lander & Rogers |
| Mr M.W. Morrison | ||
| For the Respondent | Mr A.W. Adams, Q.C. | Petersons Lawyers |
| Mr S.A. Rowland |
CHARLES, J.A.:
The respondent/plaintiff brought proceedings pursuant to s.135A of the Accident Compensation Act 1985 ("the Act") claiming damages for personal injury suffered in the course of his employment with the appellant/defendant. It was accepted by the appellant that the plaintiff had suffered a "serious injury" within the meaning of s.135A. The appellant admitted negligence and an allegation in the defence of contributory negligence was not pursued. The action therefore proceeded as an assessment of damages.
The action came on for trial in Geelong on 14 September 1999 before a County Court judge sitting alone. After a trial lasting three days, on 21 September 1999 the judge gave judgment for the plaintiff in the sum of $549,332, being damages assessed at $557,378, less $8,046 paid pursuant to the Act, together with costs. The total sum was made up of an award of $150,000 for general damages, $16,372 for past income losses, and $386,006 for future loss of earning capacity. The figure of $386,006 was arrived at by taking, first, $5,000 for loss of overtime from 15 September 1999 to 30 June 2002; the judge then took the sum of $560,089 as being the plaintiff's earnings if he had worked unrestricted with an overtime component and superannuation of 7%, and used a multiplier of 993, appropriate to an assumption that the plaintiff (who was at trial aged 35) worked to the age of 65; from the resultant figure of $556,963, the learned judge then deducted three years' current earnings ($75,059), a discount of 10% of the figure then obtained against the chance that the plaintiff would obtain occasional future work, and a further discount of 11% against contingencies.
In this Court the appellant claimed that the amounts awarded both in general damages and for future economic loss were unreasonably excessive. As to future economic loss it was claimed that the award of damages on the basis of total incapacity was contrary to the evidence, that total incapacity had not been pleaded, nor did the plaintiff's counsel seek an award of damages on such a basis, and the judge had erred in the process of discounting which had been followed.
It is necessary now to turn in some detail to the evidence given at trial. The plaintiff's evidence, which was given both orally and by way of tendering an affidavit he had sworn on 1 April 1998, was as follows. He had begun working at the appellant's plant in Geelong in 1983, and in the 16 years since in which he had been working in the engine assembly plant, had been trained as a machinist and then progressed from third class to first class machinist. He had suffered back strains on four or five occasions until February 1993 when he suffered a serious injury to his lower back. His work required him constantly to lift rotors weighing about 13 kilograms manually from a conveyor and in performing that work he would handle about 700 rotors in a shift. The work involved repeated lifting, rotating and bending and placed great strain on his lower back. On 19 February 1993 he consulted a general practitioner, Dr A. K. Sachdev, who referred him for an X-ray which was apparently normal. Dr Sachdev advised him to return to work and he returned to modified duties on 13 March 1993. He resumed normal duties on 26 April 1993. He was then still suffering from pain in his lower back while working and the pain gradually worsened until he returned to Dr Sachdev on 5 October 1993, by which time he was feeling pain in his lower back and in his legs. He subsequently returned to work on modified duties on 1 November 1993 but the rotating and bending he was required to perform caused a flare-up of his lower back and by late January 1994 the pain caused him again to consult Dr Sachdev. On this occasion he was referred for a CT scan which showed a disc injury. He resumed modified duties on 14 February 1994 and returned to normal duties by 7 March 1994. He then suffered a serious flare-up in July 1994 while doing repeated bending. He was then referred to an orthopaedic surgeon, Mr W. H. Huffam, whom he saw first on 29 August 1994. He was then off work for three weeks, returning to modified duties on 15 August 1994 and to normal duties by 14 October 1994. The plaintiff was put onto a lighter job but was still having persistent pain in his lower back and some pain in his legs. He suffered a further flare-up in November 1996 and then in June 1997 was moved into a different area working on cover plates, the work having been made easier to enable him to sit, stand and walk as he needed to. He had worked full-time at this job from June 1997 up to the time of trial (September 1999), having had in this period only a couple of days off.
The plaintiff then described having persistent pain in his lower back and said that bending and stooping would cause flare-ups, sometimes severely. He avoided movements such as sitting, standing and walking because they could aggravate the pain in his back. He suffered pain in his lower back radiating into his left buttock and sometimes his leg with the sensation of his left leg being weaker, and he tended to limp when he had pain in his left leg. He did not have much pain in his right leg. He wore a lower back brace which limited his movements and helped him avoid flare-ups. He had previously regarded himself as being fit and healthy, engaging in a wide variety of sporting and outdoor pursuits, such as bushwalking, fly fishing, playing pool and kicking a football, and playing with his son, many of which he now avoided doing. He said he had trouble driving, sleeping, and had to sleep on the floor to stretch his lower back. He even found difficult simple things like sitting and watching television, or going to a movie.
The plaintiff’s evidence was that he had had limited education with no qualification except for factory and labouring work. He said he was doing light work and believed that his lower back was worsening over time and that he was able to do less work. He said he was unable to do the same amount of overtime and estimated a then present loss of $6,000 per year. He said that he was concerned about whether the defendant would keep him employed if he could not work productively, and that he would find it difficult to work elsewhere because of having a history of a lower back injury. In further evidence the plaintiff said that he was never free from pain, but had some pretty good days. If he walked too much he would have pain in his left leg. He said he was no longer able to surf fish, fly fish or go bushwalking. He added that the intake of pain medication had caused him stomach aches and constipation.
The plaintiff said that he and others in his section with the appellant had had a meeting with management, and had been told that the machinery he then operated would be obsolete in about in 14 months’ time because of a change of the oil pump cover on the motor being assembled. He said he had been told by the appellant’s vocational personnel about alternative jobs, but had been told that nothing could be done for him. He had applied for a number of jobs, such as janitor and doing computer work and working in the tool room, but without success.
During cross-examination the plaintiff said that he still fishes off piers. After a rest he would feel alright sometimes. He said he had been to movies and to barbecues and still did some bicycle riding. He said that he had never applied to go on afternoon shift work in the coverplate section in which he worked, and had done no overtime since November 1996 when he hurt his back. He said there was less overtime available generally except in the front rotorline.
In re-examination he said that if he was standing all day he would go home at the end of the day with aches and pains. He could not say what was going to happen as far as his capacity to keep going with the job was concerned, having some good days and bad days.
Evidence was given by Victor Stephen Jablonski, a leading hand employed by the appellant until 31 July 1999, part of his job being to make assessments of a worker’s capacities. He said of the job the plaintiff was doing that “a monkey could do it”. He had observed the plaintiff not to walk well and that he had difficulty keeping up. He said the plaintiff would not be able to do the job on the line on which he (Jablonski) worked. He said he had gone out socially with the plaintiff and that the plaintiff does not keep up, “he just hobbles around”. He had gone to the plaintiff’s home over the Christmas holidays and had seen him lying on the floor during the hour he stayed there. In cross-examination he said the plaintiff spent a fair bit of his weekends with his two children.
The plaintiff’s sister, Kathryn Patricia Thompson, gave evidence that she had observed him walking with a limp and lowering himself into a chair, and was aware that he no longer was able to go camping or fishing or kick a football as he had previously done. She had observed that he could not bathe or change his daughter and had observed him in pain and very depressed.
Mr W. H. Huffam, a consulting orthopaedic surgeon, gave evidence for the plaintiff, having seen him on three occasions, most recently on 27 July 1999. He said that the plaintiff had a proven inter-vertebral disc lesion in his back with a rupture of the posterior part and that he had developed an inter-vertebral disc degeneration and disc protrusion between L4 and L5 caused by repetitive bending and moderately heavy lifting. He said that if the plaintiff could hold his back straight then the damaged disc could tolerate that as opposed to a bent forward position. Although there had been partial healing, the disc never returns to its normal uninjured state and could be further injured by repeated bending and lifting. The plaintiff was also developing disc degeneration in the disc between L5 and S1. He was only fit to perform work holding his back straight not performing repetitive bending and lifting relatively small weights. Mr Huffam said that within these limitations he would probably gradually improve, but returning to work requiring repetitive bending and lifting weights would be expected to cause increasingly disabling back pain to develop and perhaps sciatica. Mr Huffam considered the plaintiff’s injury to be a severe one and that if he was required to stand still at a machine for a long time he would expect to have more pain in his back than with a job that allows him movement and that he would be likely to become more painful and stiffer and therefore more likely to injure his back. He said that it would be a very genuine concern if the plaintiff were to return to more general work and that his capabilities were limited. He said the plaintiff was always in danger of further disc protrusion and that he could expect to have a degree of discomfort and trouble with his back into the foreseeable future by the end of the working week. Mr Huffam said that the plaintiff had been put into a job that was within his capabilities and that he was managing his present work satisfactorily.
In cross-examination Mr Huffam said that the plaintiff could work if within his limitations and that his back would probably improve but that he would always have trouble. He said that moving around at work is better for his lower back than standing absolutely still. He said there was no surgery planned. He said the plaintiff’s last major occurrence was in the first half of 1997 which was encouraging and that he would probably maintain his improvement. In re-examination, Mr Huffam said that pressure from a protruding disc could be removed from one level but would always be more serious if there were two levels.
Evidence was also given for the plaintiff by Mr J. H. Pryor, also an orthopaedic surgeon, who had seen the plaintiff on three occasions, most recently on 24 August 1999. Mr Pryor confirmed the evidence given by Mr Huffam as to the disc lesions suffered by the plaintiff. He said the plaintiff had a long standing problem with his lower back, with evidence of an acute lumbar disc lesion, progressive discal degeneration in the lower spine in two lower joints and evidence of impaired nerve root function over the left leg. Mr Pryor said the plaintiff should be moved to lighter work where he was not standing all day and where he could sit or stand as required, avoiding twisting or rotating movements and avoiding lifting with the spine bent forward. He said the plaintiff had a classic story of lower back injury and discal injury. Mr Pryor said the plaintiff had longstanding chronic low pack pain interfering with activities and that he does not have a capacity to go back to any sustained significant mechanical work where lifting or bending was required; that “he had no future in significant mechanical work”. In relation to the work the plaintiff was doing at that time, Mr Pryor said he was doing the lightest possible work and was still struggling, and believed he should be retrained into other areas.
In cross-examination Mr Pryor said the plaintiff was able to cope with light duties and that it was his impression that if he pushed himself he could handle the work if he didn’t go back to some heavier work. He said there had not been any significant change either for better or for worse and that the plaintiff could continue working as long as nothing else happened to him and his situation stayed at the same level. He said that if the plaintiff were to sit at times and stand at times and at other times “go for a bit of a wander”, that would be helpful and that the plaintiff’s statement that resting overnight tended to make the pain less severe the following day suggested he was coping and essentially stabilised. In re-examination Mr Pryor said that there would be a worsening of the state of the plaintiff’s back and that he would reach the stage where standing for long periods of time within his work would become unreasonable for him.
The plaintiff’s treating doctor, Dr A. K. Sachdev, of the Norlane Medical Centre did not give evidence, but two of his reports dated 9 April 1998 and 31 July 1999 were tendered. In the first of these, Dr Sachdev stated the following as his conclusions:
“His current symptoms are likely to keep improving with time. But it is possible for them to flare up from time to time, as it has happened during the past five years. He needs to keep doing isometric back strengthening exercises, and regular swimming/hydrotherapy to strengthen his back muscles, to prevent an occurrence of back symptoms. Currently he is fit for alternate duties, which he is already performing. I feel that it will not be appropriate for him to return to heavy manual work, involving lifting heavy weights, repeated bending or twisting even after his symptoms have fully subsided, as there would be is (sic) a substantial chance of recurrence of low back pain or even an acute lumbar disc prolapse, with more acute symptoms. Therefore I will consider him permanently unfit for heavy manual work. “
In his second report Dr Sachdev, after stating that the plaintiff was working full-time on alternative duties opined:
“It is anticipated that his symptoms will keep improving with time, though it is possible that he may be left with some residual symptoms. It is also likely for the pain to flare up from time to time. Currently he is fit for alternate duties which he is already performing. However I feel that it will not be appropriate for him to return to heavy manual work, even after his symptoms have subsided, as there would be is (sic) a substantial chance of recurrence of low back pain or even an acute lumbar disc prolapse, with more acute symptoms. Therefore I will consider him permanently unfit for heavy manual work. “
Evidence was called for the appellant from Mick Pinjuh, a fitter and turner, and, at the time of trial, Business Unit Leader with the appellant. He knew the plaintiff, got on well with him and said he was a good worker. He said that since 1997 the plaintiff had done a good job and that he had days when he struggled and days when he was “okay”. Mr Pinjuh said that if the section in which the plaintiff was working (the coverplate section) came to an end that it would be the appellant’s obligation to find the plaintiff a job or accommodate him to do a job “within his medical allowance”.
Under cross-examination he said that the plaintiff had been put on day shift because he had a light duty certificate, but that afternoon shift was available to the plaintiff if he wished to go back on it. He said he was unaware of what happened through the appellant widely with people who had physical restrictions and whether they were terminated, but that he had under him people on light duties who had so worked for a long time and that he had tried to rehabilitate them. He said the plaintiff had not been asked to work very often in other areas because of his restrictions. Mr Pinjuh also said it was possible that the job the plaintiff was doing had only 14 months to do and that it was possible that a different oil pump on the Ford motor was proposed.
Plaintiff’s counsel placed great reliance on a comparison between the earnings of one Andrew Colgrave, who was said now to be doing the job the plaintiff previously had done, both being first-class machinists, although Colgrave was now working on afternoon shift, which had unpopular hours and which attracted loaded payments. A comparison between the wages earned by Colgrave and the plaintiff showed that whereas in 1993 the plaintiff had earned $3,000 a year more than Colgrave, Colgrave now earned more than $15,000 a year more than the plaintiff.
The writ issued by the plaintiff contained a claim in the particulars of loss of earning capacity that the plaintiff had had long periods of incapacity since his injury, and that this situation was likely to continue in the future. In the plaintiff’s affidavit, the plaintiff claimed that he was then losing $6,000 per year in overtime, and expressed a concern that the defendant might not be able to keep him on if he could not work productively. In his affidavit he said that if he were not able to work with the defendant, “it would be very difficult to find work elsewhere with a history of lower back injury.”
In his opening address to the judge, the plaintiff’s counsel put it that since the middle of 1997 the plaintiff had been on permanent light duties, operating a machine that gave him some capacity to leave the machine and walk around and stretch. He stated that the plaintiff was concerned that the job had a limited time and that the plaintiff did not know what he would be able to do after that. It was put that there was a risk by reason of deterioration that the plaintiff was not able to maintain even the somewhat protected employment or permanent light duties that he had at the present time. Counsel for the plaintiff then claimed a future loss of “something of the order of $200 a week for the rest of his working life” (which would have been 30 years on the assumption that the plaintiff would work until 65). Counsel suggested that the appropriate multiplier was 900, which would have made the claim for future loss approximately $180,000.
After the evidence had been completed, the plaintiff’s counsel in his closing address put to the judge that for future economic loss his Honour should start with the difference between the plaintiff’s and Colgrave’s then weekly net rate, which, together with 7% superannuation came to $190. Using a multiplier of 1,000, this produced a figure of $190,000. Counsel then claimed for future economic loss a sum of $200,000 to $300,000, the argument being that an additional $100,000 should be added to the first figure to cover the real risk of a physical break-down on the part of the plaintiff or of a change in working conditions at Ford, those risks having to be added together.
It will be seen that the amount awarded by the trial judge for future earning loss was very substantially higher than the amount sought by plaintiff’s counsel. His Honour’s reasoning was as follows. After referring to the agreed current difference between the net earnings of Colgrave and the plaintiff of $170 per week and, that allowing for superannuation at 7%, the loss claimed would be $190 per week, his Honour said:
“I think that the overtime performed pre-accident by the plaintiff was not substantial. Even if he were willing, the availability of future overtime is conjectural. I think he should be credited with a modest proportion of loss for overtime. I do not think the plaintiff in the future would have worked afternoon shift. The comparable earnings, for the purposes of assessment, of Colgrave, should be reduced for both these factors. I think the probability is that the plaintiff will be able to continue the kind of work he is doing for something in the order of two to three years, and that employment for a period of that time will remain open to him. I am affected by the evidence of Dr Sachdev in his report of 31 July 1999, and the evidence of available employment to the year 2002 at Ford, having regard to possible model and engine changes.
I think that a reasonable view, having regard to the totality of medical evidence and to his ability to cope. He will clearly be unfit for heavy manual work for the rest of his life, and his capacity for future light work, having regard to his condition, is extremely limited. It is likely he will have difficulty in performing it, or, if performing it, then to hold it.
I think a fair approach to assessment of him is to proceed on the basis of a practical incapacity for all work from the year 2002 until the end of his otherwise working life, probably at 65 but for the accident. I think it would be fair to assess his losses on the basis that until 30 June 2002 he will earn at his present rate, and that thereafter he will be for practical purposes unemployable. In my opinion there has been a grave interference with the plaintiff’s enjoyment of life on account of his injuries, both generally and at work.” (emphasis added).
In this Court, the principal argument of Mr Ruskin for the appellant was that the amount awarded for future economic loss was manifestly excessive. He argued that the judge had proceeded (in the passages emphasized) on the basis that it was a virtual certainty that the plaintiff would be unemployable in any capacity by June 2002, an approach which he argued could not be supported on any view of the evidence and which was inconsistent with the judge’s previous finding that the plaintiff had a capacity for future light work, even if an extremely limited one. He submitted that the judge’s ruling in respect of the plaintiff’s future earning capacity was wrong and had distracted his Honour from the essence of the plaintiff’s case. Mr Ruskin’s submission was that on all the evidence the plaintiff had a capacity for light work at an improving level, with a risk against it. He submitted that in assessing future economic loss, the judge had used an inadequate discount rate for contingencies of 11%, when the proper rate should have been at least 15%. Mr Ruskin also attacked the figure of $150,000 awarded for general damages, putting it that the appropriate figure was between $100,000 and $125,000.
Mr Adams for the plaintiff submitted that the judge’s award depended very much on his assessment of the plaintiff and his ability to keep working. He argued that the judge was entitled to conclude on all the evidence that the plaintiff’s working life with the appellant was likely to come to an end by June 2002, and that he was only able to function in a sheltered workshop environment. He plainly could not return to heavy mechanical work and submitted that the judge was entitled to draw the conclusion that the plaintiff after 2002 had only a small chance of working..
It is a difficult question whether the judge was entitled to take the view that the plaintiff would have no employment with the appellant after June 2002. Mr Adams argued that the appellant had called no evidence that light work (of the nature actually sought by the plaintiff) would be available for him in the future if his present work with the coverplate section came to an end. The plaintiff had on the evidence been referred to vocational assessment service personnel at the appellant’s premises and, no evidence having been called as to the result of any such assessment, Mr Adams relied on Jones v. Dunkel[1]. On the other hand evidence had been given by Mr Pinjuh that if the plaintiff’s present work came to an end in the year 2002, it was the appellant’s “obligation to find a job or to accommodate Mr Mann within his medical allowance”.
[1](1959) 101 CLR 298.
Even if the judge was entitled to take the view that the plaintiff’s employment with the appellant would, on the balance of probabilities, come to an end in 2002, I do not think that it was open to his Honour, with respect, on all the evidence, to find that the plaintiff would after 30 June 2002 be for practical purposes unemployable. The evidence of the plaintiff himself was that for the last two years he had held down his light work position with only a couple of days off. Dr Sachdev, the plaintiff’s general medical practitioner, in his most recent report of 31 July 1999 had stated that the plaintiff’s symptoms had improved but not fully subsided, and his expectation that his symptoms would keep improving with time. Dr Sachdev said that he was currently fit for alternate duties. The thrust of Mr Huffam’s evidence was that the plaintiff would probably gradually improve if he worked within his limitations – he was managing his present job satisfactorily. Mr Pryor said that the plaintiff was able to cope with light duties and that it was his impression that if he pushed himself he could handle the work if he did not go back to some heavier work; that there had not been any significant change for the better or the worse; that the plaintiff could continue working as long as nothing else happened to him; and that his situation was staying at the same level. In two of his reports and in his oral evidence Mr Pryor said that the plaintiff should be retrained in other areas. While the plaintiff had had only a limited education, he had progressed to a first-class machinist. There was nothing in his own evidence to suggest that it was impossible for him to engage in any appropriate form of retraining.
On all this evidence I have no doubt that the judge was entitled to find that the plaintiff’s injury was severe and, as his Honour put it, “a grave interference with the plaintiff’s enjoyment of life … both generally and at work”. I would not myself, on the evidence, have interfered with the award of general damages made by the judge. But the plaintiff, of course, carried the burden of establishing that he would be unemployable after June 2002; Victorian Stevedoring Pty Ltd v. Farlow[2]. There was, as Mr Adams submitted, on the evidence a significant risk that the plaintiff would become unemployable at some stage in the future, and a further risk that if he lost his employment with the appellant he might not be able to find other employment. But as it seems to me it was not open to his Honour to find that the plaintiff had a practical incapacity for all work from the year 2002 until the age of 65. In arriving at such a conclusion, the judge, with respect, took a view of the plaintiff’s future prospects which had not been pleaded and for which the plaintiff’s counsel never contended. The consequence of so doing was that his Honour arrived, as I have said, at an award to for future economic loss substantially higher than the figure at the top of the range put to him by plaintiff’s counsel. And in so doing it seems to me, again with respect, that his Honour’s assessment had no firmer basis than mere speculation of the kind stigmatised by Sholl J. as unacceptable in Farlow[3]. Nor does it seem to me that this approach can be saved by saying that the judge made a discount of 10% for the chance that the plaintiff would obtain income from occasional light work in the future. I should add that his Honour deducted only a further 11% for contingencies, and I do not understand why it was that his Honour said a higher percentage in allowance for contingencies was not being made.
[2][1963] VR 594 at 595 per Herring, C.J., at 598-599 per Sholl, J.
[3]At 599.
Since the assessment of future economic loss was, in the emphasized passages of the judge’s reasons quoted above, based on the assumption of a practical incapacity in the plaintiff for all work from the year 2002, and that he would for practical purposes be unemployable after 30 June 2002, his Honour’s assessment of damages on this basis was in my view in error and excessive, and the award of damages should be set aside. It is unnecessary to consider further the other submissions of the appellant in relation to the assessment of future economic loss.
Counsel for the respondent submitted that if the Court were to take the view that the award of damages should be set aside, then this Court should not embark on a reassessment of damages, but rather that the issue of damages should be sent back for retrial, the quantum of damages being very much a matter of impression and the trial Court’s assessment of the difficulties of the plaintiff with his employment. He submitted that the plaintiff’s condition could not be adequately assessed merely by a reading of the transcript. Notwithstanding that the appeal to this Court is by way of rehearing and the ability of this Court to draw its own findings of fact from the transcript, in my view the Court should accede to the respondent’s submission and accordingly the question of damages should be retried. Although, as I have said, I would not have interfered with the award of $150,000 for general damages, plainly the issue of general damages is interlocked with the award for future economic loss, and it will be necessary in a retrial to deal with all questions of damages.
I would allow the appeal, set aside the trial judge’s assessment of the respondent’s damages and direct that there be a new trial limited to the assessment of the plaintiff’s damages.
CALLAWAY, J.A.:
As I understand his reasons, the learned trial judge took the view, in effect, that there would be 90 per cent incapacity after June 2002. His Honour said:
"I think the probability is that the plaintiff will be able to continue the kind of work he is doing for something in the order of two or three years, and that employment for a period of that time will remain open to him. I am affected by the evidence of Dr Sachdev in his report of 31 July 1999, and the evidence of available employment to the year 2002 at Ford, having regard to possible model and engine changes.
I think that a reasonable view, having regard to the totality of medical evidence and to his ability to cope. He will clearly be unfit for heavy manual work for the rest of his life, and his capacity for future light work, having regard to his condition, is extremely limited. It is likely he will have difficulty in performing it, or, if performing it, then to hold it.
I think a fair approach to assessment of him is to proceed on the basis of a practical incapacity for all work from the year 2002 until the end of his otherwise working life, probably at age 65 but for the accident. I think it would be fair to assess his losses on the basis that until 30 June 2002 he will earn at his present rate, and that thereafter he will be for practical purposes unemployable." (Emphasis added.)
He later deducted 10% for "the chance that the plaintiff will obtain income in the future from occasional light work".
It will be observed that there was first a finding not of total incapacity but of "extremely limited" capacity for light work, then a method of giving effect to that finding by treating it as practical incapacity but deducting 10% for the chance that the plaintiff (as I shall continue to call the respondent) would in fact earn income. There was a separate allowance for contingencies.
I might well have taken a different view, but there was evidence, however
exiguous, on which, in my respectful opinion, his Honour's primary conclusion was open.
Paragraph 13 of the affidavit sworn by the plaintiff read:
"I have had a limited education. I do not have any qualifications of any sort and have always worked in factory and labouring type work. I have become very restricted in the types of movements that I can perform which affect the type of work I can do. As I have already said, I have gone from various types of work now to fairly light work because I believe my lower back is worsening over time and I am now able to do less. I am not able to do the same amount of overtime which I previously did [to] the extent that I believe I am losing about $6,000.00 per year. I have also [lost] income during the periods that I have had off where I have been paid Workcover or taken sick leave. I am also very concerned that the firstnamed defendant may not be able to keep me on if I can't work productively. I know that if I were not able to work with the defendant, that it would be very difficult for me to find work elsewhere with a history of lower back injury." (Emphasis added.)
The judge also had the advantage, denied to us, of seeing the plaintiff give evidence and forming an assessment of him. It was not suggested to the plaintiff in cross-examination that he could be retrained.
Mr Pinjuh, the only witness called for the defence, painted a picture of the plaintiff as a man operating in the environment of a sheltered workshop that no other employer was likely to provide. His evidence included the following:
"[S]o can you tell his Honour, when he's doing this work in the number plate area, what can he do and what can't he do?---Well, Your Honour, he has got a freedom of choice how he goes about his job. There is no requirement on how much he does. We are aware of his injury and Wayne is very much in control of his own destiny, so to speak. He can sit down if he feels like, he can stand up if he feels like, and - - -
All right.How often do you see him? Do you see him daily or weekly or monthly or how often?---I see Wayne every day.
To your observation has he coped with that job since '97?---Inasfar as doing his job, he's doing a good job. Inasfar as coping with the job I guess he has days when he struggles and he has days where he goes okay." (Emphasis added.)
I do not agree with the details of his Honour's calculations and I doubt his
allowance of only 11 percent for contingencies, so that I would allow the appeal in part, but, as the other members of the Court consider that his Honour’s primary conclusion was not open, there is no need to say more.
BUCHANAN, J.A.:
I have had the advantage of reading in draft the reasons prepared by Charles and Callaway, JJ.A.
I agree with Charles, J.A. that the appeal should be allowed and that there should be a new trial to assess the plaintiff’s damages. In my view it was not open to the trial judge to conclude that at the age of 37 years the respondent's working life would end save for a possibility, represented by a deduction from the damages for future economic loss of 10%, that he might obtain occasional work in the future.
Although the respondent was hardly likely to work as he once had on the appellant’s engine assembly line, constantly lifting loads, rotating his body and bending, he lacked any qualification for other work and the appellant’s solicitude in allowing him to do as much or as little work as he felt he could may not have survived the litigation, nevertheless I am of the opinion that the evidence did not permit a finding that by June 2002 the respondent would be virtually unemployable in any capacity. The plaintiff gave evidence that he was able to cope with light work and the thrust of the medical evidence was that his symptoms were likely to improve, or at least not worsen, even though he appeared to be permanently incapacitated for work which required bending and lifting weights or even standing still. In my opinion the trial judge erred in concluding that the respondent would not obtain significant gainful employment in the future notwithstanding the physical limitations which the injury imposed upon him. I think that the trial judge erred in tying the respondent’s prospects of future employment to the work which the appellant was likely to offer him in the future.
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