Glenelg Cleaning Services Pty Ltd v Kelly
[2001] VSCA 6
•14 February 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 7555 of 1999
| GLENELG CLEANING SERVICES PTY. LTD. |
| Appellant |
| v. |
| ROBYN KELLY |
| Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 February 2001 | |
DATE OF JUDGMENT: | 14 February 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 6 | |
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Damages – Personal injury – Past and future financial loss – Loss of earnings – Assessment by trial judge alone – Requirement to give reasons – Degree of particularity required – Necessity to establish factual basis of award – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. J.H.L. Forrest, Q.C. with Miss K. Galpin | Gadens |
| For the Respondent | Mr. J. Jordan, Q.C. with Mr. A. Keogh | Stringer Clark |
WINNEKE P:
I will invite Charles, J.A. to deliver the first judgment in this appeal.
CHARLES, J.A.:
The respondent/plaintiff brought proceedings pursuant to s.135A of the AccidentCompensation Act 1985 claiming damages for personal injury suffered by her in the course of her employment with the appellant/defendant on 22 September 1994. She alleged that the injury she sustained was a "serious injury" pursuant to s.135A and was caused by the negligence of the defendant. The defendant denied that the plaintiff suffered a serious injury, denied negligence and alleged contributory negligence. The action came on for trial at Warrnambool before a County Court judge on 22 September 1999. On 24 September the hearing was adjourned to Melbourne and the trial concluded on 30 September.
On 28 October 1999 judgment was given and the following findings were made. The judge found that the injury sustained to the plaintiff's back whilst she was employed by the defendant was a "serious injury" pursuant to s.135A and was caused by the negligence of the defendant. His Honour assessed the plaintiff's damages as being -
(i) general damages of $85,000;
(ii) loss of earnings from 1 July 1995 to 30 June 1998 at $300 per week, and amounting to $46,800;
(iii) loss of earning capacity in the future fixed at $189,000, and consisting of -
(a) $46,800 based upon a loss of $300 per week, for three years, commencing 1 July 2000; and
(b) $142,002, being a continuing loss of $150 per week from 1 July 2003 to the age of 65.
The sum of $189,000 was reduced to $160,000 for vicissitudes of life. The judge held that the plaintiff had not been guilty of contributory negligence. Judgment was given for damages, inclusive of interest, against the defendant for $307,348, together with costs.
The plaintiff alleged that she sustained injury due to performing heavy and awkward lifting and repetitive bending in the course of her employment as a cleaner with the defendant; she alleged that the defendant's negligence was constituted (inter alia) by her being required to lift excessive weights, and to work for prolonged periods in a bent position, in the defendant failing to provide her with assistance, and in failing to instruct the plaintiff in the performance of her work.
By its notice of appeal the appellant challenged the judge's findings as to negligence and his Honour's assessment of the plaintiff's future economic loss. The appellant made no challenge to the judge's finding that there was no contributory negligence, nor to the sum fixed for general damages. Then, before the appeal came on for hearing, the appellant abandoned its appeal against the judge's findings as to negligence, but sought instead leave to amend its notice of appeal to include a challenge to his Honour's assessment of the plaintiff's past economic loss. Notice of the proposed amendment had been given to the respondent some days before the hearing of the appeal and, there being no objection, the court granted the appellant leave to amend its notice of appeal accordingly. The only issues now before this Court are therefore challenges to the judge's conclusions, first as to the past, and secondly as to the future, pecuniary loss of the plaintiff.
I turn then to the evidence called for the plaintiff at trial. Her own evidence was that she commenced general cleaning work with the defendant in July 1994. She had been in extremely good health until that time, walking two or three times a week for eight to ten kilometres, and participating in social squash, netball, step aerobics and some martial arts. The cleaning work on which she was engaged was very physically demanding and exhausting, and she had to lift heavy buckets and a heavy vacuum cleaner. Insofar as there was a conflict between the evidence given by the plaintiff and the evidence given on behalf of her employer by Norman Brabham, and his wife Glenda, the evidence of the plaintiff was preferred. The plaintiff said that she suffered tiredness, some lower back-ache and trouble with a calf muscle for some months until, on 22 September 1994, she was mopping under tables and felt a nasty pinch at waist level in her back when she stood up. Her back pain got worse during the morning and she reported her injury and did not work on the following Friday. From 22 September 1994 she suffered a lot of lower back-ache and right leg-ache.
The plaintiff said she chose to resign from the defendant's employ in January 1995, basically because her husband had changed jobs and had thus increased his income. The result was that it was not financially viable for her to work casually since, if she did, she would lose her Health Care card and other Commonwealth benefits. She said that if it had not been for her financial position, she would have kept working. Her back injury did not cause her to stop work at that time, four or five months after the injury, and was not the precipitating reason for her stopping work with the defendant. She did not say that at the time she stopped work she could not physically have continued with her work. She said, however, that at the time she resigned she intended to look for full-time cleaning work or supermarket work, but had not actually looked for such work since resigning. The main reason for this was her ongoing back problems, but she conceded in cross-examination that she really did not make any effort at all to look for work at the time she resigned, and that if she had intended to work full-time, she would have made some effort to look for work at that time.
Her evidence was that it was not until late 1995 that her back became an ongoing problem. She said she had various incidents of lower back-ache in 1995; for example, she got off a chair and felt the same pinch as at the time of injury, and there was a similar incident when she reached for an item in a cupboard. After these incidents she was very limited for at least a week and spent most of her time in bed because she could not stand for any length, and it would take another week to get over the incident. She attended her general practitioner in respect of her coccyx in early 1995, and in March 1995 she was referred to a surgeon for removal of her coccyx. The judge was satisfied that this was of no relevance to her present claim. She first went to see her doctor about her back problem on 10 January 1996 after sustaining a nasty pinch in the back when attempting to lift a vacuum cleaner. By then her pain had become more frequent. No treatment was recommended by her doctor apart from physiotherapy and prescription of some anti-inflammatory medication for muscle spasm. She said that she might take this two times a day for a week if she had a bad incident, but then not for another month or so. She did not receive any treatment after mid-1996.
After ceasing work she still walked four kilometres a couple of times a week and played squash in 1995 about once a month with Mr Brabham. She did not resume other sport and ceased squash in early 1996 because it caused too much discomfort. She said she still does household work but has had to modify her household duties and could no longer do heavy aspects of gardening such as digging or mowing the lawn. She said that the pain she now suffers was nowhere near as severe as it had been in 1995. She was never completely pain-free, but does not suffer the exacerbation-type incidents she suffered in 1995. On the other hand, the pain in her leg is now continuous.
The plaintiff said that in 1997 she undertook a full-time computer-based TAFE course in Advanced Office Administration. She attended most days from 9 a.m. until 3 p.m. and passed "with flying colours". She received a qualification (a certificate) in computing and word-processing for general clerical or secretarial duties. She also said that she had not attempted to obtain clerical or secretarial work, mainly because of personal family problems related to her daughter's health, which were the reason she had not looked for work in 1998 and 1999. She said that these problems would preclude her from working in any event in the foreseeable future, although in re-examination she said "we're probably looking at at least the next few months to see how her progress is as to how bound to her I am". In the TAFE course, she could get up and walk around for five to ten minutes to relieve back pain which occurred if she sat too long. She said she would be a bit sore by the time she went home but was generally good. She attended the course on most days, except for a few days following a bus trip that took almost two days. She conceded that the course quite possibly suited her to reception work and did not think there was anything about reception work that she would be limited in doing. She said she did not think that reception duties such as sitting, carrying files and filing should be a particular problem. She expected that she would earn at least as much per hour in reception work as she had earned performing cleaning (which was $12.25 per hour) and conceded that there were jobs available in reception work around the Hamilton area. She would have no qualms about seeking the support of her former teachers if she applied for jobs. She said she did not know how she would cope with work on a day-to-day basis - sitting for long periods five days a week. She had casually checked the Centrelink computer to see if there were any jobs available that suited her qualifications, but had not really found anything suitable as there were not a lot of clerical jobs in Hamilton.
The following three doctors were called during the plaintiff's case. Evidence was given by Mr William Maling, a general surgeon, who had examined the plaintiff on three occasions. Mr Maling said that the heavy cleaning work had caused intra-discal pressure sufficient to cause disc injury, and that the plaintiff had suffered internal disc disruption, including a prolapse at L4-5. He said that she had three discs injured while working for the defendant from 29 September 1994 onwards. Mr Maling's evidence was that the plaintiff would not be able to do cleaning work but was able to carry out light work as she does at home . He said that it would be difficult for her to do sedentary work, and that sitting causes intra-discal pressure to rise and discs to bulge, causing more pain. He said this would require her to get up and walk around from time to time, which would be difficult for her over an 8-hour day, five days a week, and he did not think she would ever be able to do it.
Mr Stanley Schofield, an orthopaedic surgeon who had examined the plaintiff twice, said that she was not capable of resuming her pre-existing employment. Mr Schofield said she might be able to cope with a secretarial or office administration position if she had a sympathetic boss and was allowed to sit or stand at ease . He said that if she could get out of her chair and walk around and not stand too long, this was the sort of work that people with instability could do, but he was not sure how long she could stand it. He agreed that there were numerous clerical and administrative jobs where people can stand up and move around as part of their work.
Mr David Brownbill, a neurosurgeon who had examined the plaintiff on two occasions, said that people with back injuries such as the plaintiff should avoid heavy lifting and forced movement of the back and prolonged sitting or standing, which would aggravate her symptoms. But he said that this would not prevent her carrying out a secretarial job, which would need modification so that she could do it within her limitations. He said her pain was likely to continue in a fluctuating manner with good and bad days and there would be periods where she would not be able to do much physically for a day or so at a time, and where she would find difficulty sitting for more than a short time. But he said he would expect that the plaintiff could perform secretarial administrative work which would involve a multitude of activities. Her attendance at the course she had completed was consistent with his view that she could pursue moderately sedentary work, given the concept of good and bad days.
The judge said of the plaintiff that her pecuniary loss damages "must be high". His Honour later said -
"As to pecuniary loss damages, Mr Keogh on behalf of the plaintiff submitted written calculations which I consider were fair and reasonable and should be allowed. The figure for past loss of earnings was based on $300 net per week from 1 July 1995 to 30 June 1998, $46,800.
The amount claimed for loss of earning capacity in the future was at the same net rate of $300 per week commencing 1 July 2000 for three years at $15,600 per annum, $46,800. He claimed a continuing loss of $150 net per week from 1 July 2003 to age 65 years, $142,200, a total loss of earning capacity of $189,000. Making an appropriate reduction for vicissitudes the award for loss of capacity to earn in the future is $160,000. Total pecuniary loss damages are $206,800."
These calculations were made on the basis of a written submission on a single sheet of paper made by the plaintiff's counsel which showed hourly earnings at cleaning of $12.25, and that, therefore, if working a 40‑hour week, gross earnings would amount to $490. The calculation continued by claiming loss of earnings at $300 net per week for the period of three years before trial, and a further three year period beginning 1 July 2000. Thereafter the loss shown was claimed at the rate of $150 per week.
There are three sets of calculations involved in the assessment of the plaintiff's pecuniary loss: (a) past pecuniary loss to 30 June 1998; (b) future loss from 1 July 2000 to 30 June 2003; and (c) future loss from 1 July 2003 to age 65 years. With respect, examination of the judge's reasons and the single page submission of plaintiff's counsel on which the judge expressly based himself shows that there are serious problems in each case.
The particulars appended to the statement of claim, and the plaintiff's particulars of earnings later supplied, each alleged only a loss pre-trial of $148 net per week. The later particulars of earnings also claimed a loss of future income at the same rate. A list of the plaintiff's earnings from the week ended 22 July 1994 to 27 January 1995 was prepared by Glenda Brabham and tendered in evidence and showed a maximum weekly amount earned by the plaintiff of $176.40, and an average weekly gross figure of $126.50. The hourly rate used was $12.25, which was the rate paid for casual work, the plaintiff then working usually 12 hours per week. The claim for $300 per week, contained in counsel's written submission, was first made when the evidence closed and the appellant's counsel was about to commence her address. The plaintiff's evidence had been that, apart from a three to four month period working as a shop assistant, she had never worked in a full-time capacity. She had resigned in January 1995, not because of any physical disability, but because it was financially impractical to continue working part-time. No allowance was apparently made in the assessment of past loss for her capacity to continue to work part-time notwithstanding that, in 1997, she had completed and passed her TAFE course. She herself had then elected not to exercise that capacity after completing the course, in that she had not sought receptionist or administrative work thereafter. Further, there was no evidence before the court as to what cleaning work might have been available to the plaintiff, had she sought to work full-time, or at what rate she would have been paid if she had worked a full 40-hour week.
As to the loss from 1 July 2000 to 30 June 2003, the claim for $300 per week was allowed in full with no discount for present payment, which is the more significant when it is borne in mind that this period, for which loss is claimed, started some nine months after the date of trial. The starting date of 1 July 2000 was chosen apparently because at the time of trial the plaintiff was not able to work for personal reasons related to her daughter's health. An assumption then appears to have been made that this problem would have resolved itself by 1 July 2000, although this was by no means clear given the uncertain nature of the plaintiff's evidence in this regard. Nor was there any satisfactory evidence called as to what cleaning work might have been available, or at what rate of pay on a full-time basis, nor what secretarial, clerical or administrative work the plaintiff might have been able to obtain, or the rates of pay for such work. Of the three doctors who gave evidence of the plaintiff's future capacity to work, the judge might have been entitled to prefer the evidence of Mr Maling (whose evidence his Honour said he accepted), who doubted that the plaintiff would be able to do sedentary work, at least "over an eight-hour day, five days a week". But having regard to the evidence of Mr Schofield and Mr Brownbill, the contents of Mr Maling's last report dated 9 September 1999, and the plaintiff's own evidence of having satisfactorily completed her computer course over a period of nearly a year, attending on most days from 9 a.m. until 3 p.m., surely some explanation at least should have been given for rejecting or discounting the possibility that the plaintiff might in this period have obtained at least part-time secretarial or reception work after the completion of her course and obtaining her certificate.
The final period was from 1 July 2003 up to the age of 65. The plaintiff did not give evidence that she hoped to work until 65. No basis appears in counsel's submission, nor do the judge's reasons provide any explanation, for the choice of $150 per week in this calculation. If the evidence of Mr Maling was to be accepted as establishing that the plaintiff had no residual ability to carry out light work, it is conceivable that a higher award might have been justified. But Mr Forrest for the appellant also submitted that the calculation demonstrated that the multiplier which must have been used was appropriate to a calculation not from 1 July 2003, but rather from the date of trial up to age 65, so that there had been no proper allowance for present payment, submissions which were not contested by Mr Jordan.
When an assessment of damages particularly in respect of future pecuniary loss is made by a judge, the judge is expected to give reasons for the assessment he makes[1]. Mr Forrest submitted that the reasons given by the judge in the present case were quite inadequate, providing no basis for the judge's conclusion that the amounts were fair and reasonable, and indeed giving little indication of what were his Honour's conclusions. Furthermore he submitted that no proper evidentiary basis had been shown for such facts as appeared in the reasons. In response Mr Jordan frankly accepted that the reasons given by the judge were inadequate. He submitted, however, that error had not been shown because the damages awarded amounted to an attempt to reflect a very serious and permanent loss of earning capacity. Mr Jordan pointed to his Honour's statement that counsel's proposal was "fair and reasonable" and submitted that, although the absence of reasons was clear, taking the evidence overall, the assessment was a fair and reasonable one. Mr Jordan also accepted that no evidence had been given which precisely supported either of the weekly amounts of $300 or $150 used, or that the plaintiff wished to work until 65, or that full-time cleaning work was available, or the rates of pay which such work might have justified, or which would have been obtainable for clerical or administrative work. Mr Jordan put it that the assessment of future loss depended on his Honour having, in effect, accepted from Mr Maling's evidence that there had been a total loss of future earning capacity in the plaintiff and that, on such a view, the amount awarded was moderate and, indeed, fair and reasonable.
[1]CSR Readymix (Australia) Pty. Ltd. v. Payne [1998] 2 V.R. 493, per Winneke, P. at 508.
In substance, the appellant's argument is that, in light of the problems already demonstrated in relation to each of the three sets of calculations, and having regard to the admitted inadequacy of the reasons given, the assessment of damages made by the judge was no more than an intuitive assessment, based on assumed facts which were unstated and which had not been established by evidence. With all respect to the very experienced trial judge, this submission has in my view been made good, and the appeal must succeed, both as to past and future pecuniary loss. In this event, both counsel accepted that this Court should not itself attempt to re-assess the damages and that the appropriate course was for the issue of damages to be re-tried.
I would allow the appeal, set aside the judgment below, and order a new trial limited to the issue of damages.
WINNEKE P:
I agree, for the reasons given by Charles, J.A., that the appeal should be allowed and there be a new trial on the question of damages.
PHILLIPS, J.A.:
I too agree.
WINNEKE, P.:
The formal order of the Court will be: The appeal is allowed with costs and the judgment below set aside.
What do counsel say about that part of the judgment ordering costs in favour of the respondent?
(Discussion ensued.).
WINNEKE, P.:
The formal order of the Court will be:
1. The appeal is allowed with costs.
2.The judgment below is set aside. In lieu thereof, we order that there be a new trial limited to the issue of assessment of damages.
3.We order that the costs of the first trial be in the discretion of the judge who hears the new trial, but we note that such discretion will have to be exercised bearing in mind that the respondent has succeeded on the issue of liability and no challenge has been made to that issue, nor the issue of general damages awarded on this appeal.
4.The order made by Judge F.B. Lewis on 11 November 1999 requiring the deposit fixed by him to be paid into the County Court pending the hearing of this appeal be extended to the date of the hearing and determination of the new trial which we have ordered.
5.We direct that there be a certificate to the respondent in respect of the costs of this appeal pursuant to the provisions of the Appeal Costs Act.
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