Green Triangle Meatworks Ltd v Mark Phillip Causby No. SCGRG 92/2622 Judgment No. 3941 Number of Pages 5 Industrial Accident

[1993] SASC 3941

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(2), PERRY(1) AND MULLIGHAN(3) JJ

CWDS
Industrial accident - assessment of damages - Respondent employed as a supervisor at an abattoir - injured in right thigh by bullet or shrapnel from a .222 rifle used to slaughter a bull - appellant, the employer, admitted liability - respondent suffered a l5 percent loss of function of the right leg - trial Judge assessed the allowance of past pain and suffering and loss of amenities at $10,000 and for future pain and suffering and loss of amenities $35,000 - appeal against assessment of damages - held the amount awarded was not manifestly excessive.
Workers' Compensation and Rehabilitation Act s.43 and s.54. Van Velzen v Wagener (1975) 10 SASR 549 at 551 and Australian Coal and Shale Employees' Federation v The Commonwealth (1955) 94 CLR 621 at 625, considered.

HRNG ADELAIDE, 3 May 1993 #DATE 3:5:1993
Counsel for appellant:     Mr R Soulio
Solicitors for appellant:    Gun and Davey
Counsel for respondent:     Mr S Walsh QC
Solicitors for respondent: Herman Bersee

ORDER
Appeal dismissed.

JUDGE1 PERRY J: The respondent was the plaintiff in an action brought in the District Court of the South-East against his employer, Green Triangle Meat Works Limited. He sued for damages arising out of an injury which he received to his right leg in the course of his employment at abattoirs conducted by the appellant, where the respondent was employed as a supervisor. 2. The circumstances of the accident were unusual. In an effort to kill a large bull, another employee attempted to fire a .222 rifle. In the course of doing so, it accidentally discharged. Either the bullet or some shrapnel struck the plaintiff, who was standing nearby, on his right thigh just above the knee. 3. The appellant admitted liability and the matter came on for assessment of damages. Having regard to the terms of s.54(1), as it then stood, of the Workers Rehabilitation and Compensation Act 1986 ("the Act"), the assessment was limited to damages at common law for non-economic loss. Furthermore, the damages to be awarded were subject to a ceiling of 1.4 times the prescribed sum (see s.54(4)). There is no suggestion in this case that the damages exceeded that ceiling, and it is unnecessary further to refer to that aspect of the matter. 4. The learned trial judge assessed the allowance for past pain and suffering and loss of amenities at $10,000, and for future pain and suffering and loss of amenities he awarded $35,000. From the latter figure he was obliged, pursuant to s.54(3) of the Act, to make "due allowance" for any lump sum paid or payable, under Divisions V or VI of the Act to the plaintiff. 5. It was agreed between counsel that the plaintiff had been paid $6,579 by way of a lump sum awarded pursuant to s.43 of the Act. His Honour, therefore, proceeded to deduct that sum from the total of $45,000 giving a balance of $38,421 with respect to which he awarded interest in a lump sum of $750, giving a net judgment of $39,171. 6. The appellant appeals from that judgment on the ground that the learned trial judge's award for both past and future pain and suffering, and loss of amenities was excessive. In the grounds of appeal contained in the Notice of Appeal, the appellant also complains that the learned trial judge erred in law in making an award of interest. When the appeal was called on, we were informed by Mr Soulio of counsel for the appellant that the appeal against the making of an award of interest, was not pursued. 7. At the trial, the plaintiff gave evidence, as did his wife. In addition, he tendered a report of a general surgeon, Mr Cohen, whom he called to give evidence. The appellant tendered a report of an orthopaedic surgeon, Mr Adrian Munyard, but he was not called to give evidence. 8. The learned trial judge accepted the plaintiff as a witness of truth and, indeed, described him as a stoic personality who had understated the effect of the accident upon him. Insofar as there was any difference in the opinions expressed by the two doctors, he preferred the views of Mr Cohen. 9. On the hearing of the appeal there has been no attack upon the learned trial judge's findings of fact. 10. At the time of trial, the plaintiff was aged 38 years. He is married with three children. Throughout his working life he has worked as a slaughterman. He had experience as well as a meat inspector and supervisor in meat works. 11. When the accident occurred the plaintiff felt something strike his right leg. The force was sufficient to knock him down. He did not realise at first what had happened. When his leg became hot and painful, and he saw blood running down the side of it, he got to his feet and made his way to the office area where he saw that there was a wound in his right thigh. 12. He was sent home. Although he was able to drive home, his leg was numb and painful. He did not immediately seek medical assistance. He says that he was discouraged from reporting the accident by the production manager. Be that as it may, he could, to use his expression, hardly walk the next morning when the leg appeared swollen and painful. Although he went to work, he soon thereafter consulted the first aid officer who immediately advised him to see a general practitioner. 13. He consulted a Dr Cameron. X-rays were taken and on the same day he saw an orthopaedic surgeon, Mr Strickland. He was advised to remain off work. In all, he was off work for five working days. During that time the swelling in his leg reduced to some extent, and he recovered limited mobility in the leg. He was not given active treatment. 14. On his return to work he found he could only cope with difficulty. His leg hurt when he attempted to climb stairs. Again, to quote his evidence, he felt pain all around the top of the knee and down the right-hand side of the knee. He felt that his leg was unstable, a feeling which has persisted until now. 15. Some little time after the accident the appellant transferred the plaintiff to work in the freezer rooms. The extreme cold produced an exacerbation of the pain and discomfort, particularly in the knee. Not because of the injury and the aftermath of it, but through some other unrelated episode, for which the appellant does not bear responsibility, the respondent left the appellant's employ in October 1989. 16. At the same time he left Mount Gambier, where he had been living with his family, and took up residence at Mount Barker. He was able to obtain further employment as a slaughterman at Lobethal, and it appears at that the time of trial he was still engaged in that job. 17. The learned trial judge summarised the consequences of the injury in the following terms:
    "It is true that, after his initial five days absence, the
    plaintiff has not taken any further time off work in consequence
    of his leg injury nor has he sought medical treatment or
    assistance (save for medico-legal purposes). The defendant
    points to this as an indicator that the plaintiff's injury is
    minor and of little consequence. I do not agree. I find that
    the plaintiff's knee gives him constant pain or discomfort and
    he has not taken time off work because 'I've got a wife and I've
    got a family and I've got a mortgage and I have to work'. He
    has not sought lighter work. He manages to carry on
    notwithstanding the fact that his leg is stiff and increasingly
    painful as the day wears on. The plaintiff finds it necessary
    to retire early at night. He tries not to be ill-tempered with
    his family but it is plain that he does not always succeed. His
    marital relationship with his wife has deteriorated. Not only
    is the plaintiff tired and in pain but he also has limitation in
    the use to which he can put his right leg. The domestic and
    sexual problems brought about by the accident are significant.
    The plaintiff can no longer jog. He cannot play games (such as
    football) with his children. He finds this frustrating,
    particularly as one of the children has special needs with
    co-ordination and the plaintiff cannot help him as he would
    wish. Before the accident, the plaintiff enjoyed fishing and
    particularly rock fishing. His leg injury inhibits his ability
    to fish, particularly on and from the rocks. The plaintiff also
    experiences difficulties in driving a motor car for any
    significant distance. His leg becomes sore and stiff and he
    cannot continue. I do not propose to canvas the plaintiff's
    misfortune at greater length or in greater detail. There are
    some complaints which I have not mentioned. I accept that the
    effects of the plaintiff's leg injury are those to which he has
    referred in his evidence. I repeat that I think it likely that
    the plaintiff has understated his complaints. He has shown a
    degree of stoicism towards his injuries that many litigants
    would not emulate." 18. Mr Cohen's evidence was that when he examined him on 6 March 1990, about one year after the accident, he found that there had been, to use his expression, "no loss of substance of the leg". 19. Mr Cohen sighted the x-rays taken on 1 March 1989, which confirmed the presence of a metallic foreign body in the soft tissue in the lower femoral region. Mr Cohen's description was:
    "It appeared to be almost triangular in shape, there being about
    5 millimetre at its waist and 6 millimetres long. It was
    present at the posterior border of the femur, approximately at
    the junction of the lower quarter and upper three-quarters of
    the femur. It was on the lateral side of the leg to the femur." 20. Mr Cohen noted that the plaintiff was stiff getting up out of his chair. He saw a small scar on the anterior lateral surface of the thigh and the area adjacent to that was tender. The main focus of the complaints by the plaintiff to Mr Cohen was the top of the kneecap. However, the knee joint itself did not appear to be tender, and there seemed to be full free flexion and extension. Mr Cohen reached the view that it was better that the metal fragment stay in the leg, an opinion with which Mr Munyard agreed. Mr Cohen thought that it was probable that there was soft tissue damage to muscle and fascial structures. He concluded that the plaintiff had suffered a probable 15 per cent loss of function of the leg. He thought it possible that physiotherapy could help improve the leg. During the course of his evidence Mr Cohen said:
    "The history that he has given me (p.79) is I think I show quite
    moderate interference with various activities, standing, walking
    are complaints that are interfered with, climbing stairs and any
    function that would relate to that would produce a similar
    problem. He has even had problems described to me the
    difficulties he is in driving for any period of time. There was
    a whole range of problems that I see that have developed from
    this injury." 21. He thought that those problems were consistent with the nature of the injury as he had diagnosed it. In my opinion, the evidence justified the learned Judge's findings, and indeed, as I have indicated, they were not placed under attack on the appeal. 22. After the passage which I have cited above, the learned Judge went on to observe:
    "The plaintiff has accepted his injury and its consequences with
    fortitude. He has persisted with his work when many others
    would not have done so. Questions put by the defendant and
    designed to demonstrate that the plaintiff can or should be
    performing activities such as rock fishing miss a simple but
    telling point. The plaintiff forces himself to work because he
    feels that he must. He works in pain and discomfort. The
    plaintiff does not go rock fishing (for example) now because he
    does not feel that he must. He does not risk extra, unnecessary
    pain and discomfort nor does he risk his personal safety by
    performing physical activities that he does not perceive as
    necessary. He is wise to take that view. A little further
    down in the judgment the learned Judge said: "The plaintiff has
    'soft tissue damage to muscle'" quoting Mr Cohen, "...'in the
    fascial structures in his leg and is left with permanent
    disability. There is no prospect that things will improve for
    the plaintiff and that means that his present problems will
    continue'." 23. I have carefully read the evidence, including that of the respondent's wife, who generally supported the account given by the plaintiff of his complaints. While it is true that the respondent has undoubtedly suffered a moderately disabling injury, and while it is true that the award should not be discounted by reference to the fact that he has tended to understate its effect, I have not been satisfied that the award made by the learned judge, either with respect to past or future pain and suffering was excessive. 24. It may be that the awards on both heads are somewhat higher than might have been awarded by others, but that is not the test. The learned trial judge was in a unique position of being able to assess the plaintiff's credibility and the nature of the complaints which he made, and to assess the allowance appropriate for what the learned trial judge regarded as the manifestation of his somewhat stoic reaction to his disabilities. 25. While perhaps at the top of the bracket of possible awards, in my opinion the appellant has not demonstrated that the award was manifestly excessive. I would dismiss the appeal.

JUDGE2 LEGOE ACJ Counsel for the appellant has very properly drawn our attention to certain well known principles in the authorities, including Van Velzen v Wagener (1975) 10 SASR 549 at 551, in the joint judgment of Walters and Wells JJ; and further, in the High Court decision of the Australian Coal and Shale Employees' Federation v The Commonwealth (1955) 94 CLR 621 at 627 as to the proper approach to be taken by this court in appeals against the assessment of damages which necessarily involves the discretion of the tribunal making the assessment. 2. In my opinion, the appellant has not established that in this case those principles dictate that this court should properly interfere with the award. The court will not interfere, only because it would itself have awarded some other sum of damages. There must be some error of fact or law demonstrated in the circumstances of the case and, for the reasons expressed by my brother Perry J, I am satisfied that in this case that has not occurred in this case. I agree with my brother Perry J that the appeal should be dismissed.

JUDGE3 MULLIGHAN J I agree.