Hanson Construction Materials Pty Limited v Tawhai
[2010] NSWCA 55
•1 April 2010
New South Wales
Court of Appeal
CITATION: Hanson Construction Materials Pty Limited v Tawhai [2010] NSWCA 55 HEARING DATE(S): 9 December 2009
JUDGMENT DATE:
1 April 2010JUDGMENT OF: Hodgson JA at 1; Basten JA at 80; Sackville AJA at 83 DECISION: (1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Hanson to bring in short minutes of order within twenty-eight days, or if short minutes of order are not agreed, to bring in its proposed short minutes with submissions, with submissions from the other parties to be provided within a further fourteen days.CATCHWORDS: TORT – Negligence – Duty of care owed by entity to whom a worker was hired out – Whether breach of duty established – Apportionment of liability between that entity and another tortfeasor. - APPEAL – Fresh evidence – Matter falling within area of uncertainty where trial judge’s estimate made – Not admitted to support ground of appeal – Other grounds of appeal made out, and evidence admitted to assist Court of Appeal to reassess damages. - DAMAGES – Future economic loss – Trial judge’s assessment based on current earnings, which were in excess of what it was likely that the plaintiff would have earned but for the injury – Error shown – Civil Liability Act 2002 s13. LEGISLATION CITED: Civil Liability Act 2002 s13
Law Reform (Miscellaneous Provisions) Act 1946 s5
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 51.2, and also UCPR 51.18(1)(f)
Workers Compensation Act 1987 s151ZCATEGORY: Principal judgment CASES CITED: Ace-Semi Trailer Sales Pty Limited v Zurich Australia Insurance Limited [2009] NSWCA 381
Andrews v Nominal Defendant (1962) 63 SR(NSW) 110
Doherty v Liverpool Hospital (1991) 22 NSWLR 284
Estate of Mutton v Howard Haulage Pty Limited [2007] NSWCA 340
Mulholland v Mitchell [1971] AC 666 at 679-80
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492
Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235
Roads and Traffic Authority (NSW) v Turner [2008] NSWCA 48
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Warr v Santos [1973] 1 NSWLR 432PARTIES: HANSON CONSTRUCTION MATERIALS PTY LIMITED (appellant)
Paul Winiata TAWHAI (first respondent)
PIONEER ROAD SERVICES PTY LIMITED (second respondent)FILE NUMBER(S): CA 2009/00298210 COUNSEL: S TORRINGTON (appellant)
D KENNEDY SC/ G SMITH (first respondent)
N POLIN (second respondent)SOLICITORS: Turkslegal (appellant)
Lough Wells Duncan Lawyers (first respondent)
DLA Phillips Fox Lawyers (second respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 174/05 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 3 October 2008
2009/00298210
DC 174/051 APRIL 2010HODGSON JA
BASTEN JA
SACKVILLE AJA
1 HODGSON JA: The proceedings giving rise to this appeal arose out of an accident that occurred at Wallgrove Quarry on 4 June 2002. At that time, the first respondent (the plaintiff) was employed by a labour hire company Adecco Industrial Pty Limited (Adecco), and was seconded by Adecco to work for the appellant (Hanson) driving a truck supplied by Hanson. The accident occurred when a front-end loader operated by the second respondent (Pioneer) reversed into the truck while the plaintiff was in the driver’s seat. The plaintiff sued Hanson and Pioneer, and each defendant cross-claimed for contribution from the other. Pioneer admitted liability.
2 On 3 October 2008, Delaney DCJ gave his decision, in which he found that Hanson and Pioneer were negligent, that the plaintiff was not guilty of contributory negligence, that Adecco was negligent to the extent of 20 per cent, and that there would be a verdict for each defendant on its cross-claim to the extent of 50 per cent; and he assessed damages against Hanson at $576,484.41 and against Pioneer at $421,984.41.
3 Following calculation of adjustments required by s 151Z of the Workers Compensation Act 1987 consequent on the finding of negligence to the extent of 20 per cent against Adecco, the following orders were made on 27 November 2008:
1. Verdict and judgment for the Plaintiff as against the First Defendant Hanson Construction Materials, in the amount of $461,187.53.
2. Verdict and judgment for the Plaintiff as against the Second Defendant, Pioneer Road Services Pty Limited, in the amount of $337,587.53.
3. The Defendants are granted leave to file Cross Claims against each other relying on section 5 of the Law Reform (Miscellaneous Provisions) Act 1946.
4. Verdict and judgment for the First Defendant against the Second Defendant (cross defendant to the cross claim brought by the First Defendant) in the amount of $230,593.76.
5. Verdict and judgment for the Second Defendant against the First Defendant (cross defendant to the cross claim brought by the Second Defendant) in the amount of $168,793.76.
6. No order as to the costs of the cross claims.
8. Declaration that any satisfaction by the First Defendant of Order 1 will pro tanto satisfy Order 2 and any satisfaction by the Second Defendant of Order 2 will pro tanto satisfy order 1.7. First and Second Defendants to pay in equal shares the Plaintiffs costs as agreed or assessed.
4 Hanson has appealed from those orders. The plaintiff has put on a cross-appeal seeking a re-assessment of damages for future economic loss. Pioneer has also put on a cross-appeal, seeking re-assessment of damages.
Circumstances
5 The plaintiff was 40 years old at the time of the trial.
6 In April 2002, he was employed by Adecco, and was hired out to Hanson.
7 Over the following weeks, the plaintiff drove a truck supplied by Hanson carrying aggregate and metal from the Bass Point quarry to various locations in Sydney. One site to which he frequently delivered road base and aggregate material was Wallgrove Quarry, which he visited about five to ten times a week for the two months prior to the accident.
8 Between 11 pm and 12 pm on the evening of 4 June 2002, the plaintiff drove his vehicle into Wallgrove Quarry and stopped. There were two front-end loaders operating in the quarry. One of them, owned and operated by Pioneer and driven by its employee Mr Saliba, reversed into the passenger side of the plaintiff’s truck, injuring the plaintiff.
Proceedings in the District Court
9 The plaintiff’s statement of claim (as amended) alleged that Hanson was the owner and/or occupier of the quarry, and alleged vicarious liability for the negligence of the driver of the front-end loader against both defendants. The statement of claim also alleged negligence against Hanson as owner and/or occupier of the quarry, in failing to take proper precautions for the plaintiff’s safety.
10 At the trial, the plaintiff gave evidence that he was given no instructions other than to get into the truck and drive it to the quarry and unload some metal. He gave evidence that, when he stopped the truck in the position where it was hit, Mr Saliba’s front-end loader was about 30 metres away. The loader then reversed towards the plaintiff’s truck, and when the plaintiff observed this, he sounded his horn; but the loader did not stop. This evidence was accepted by the primary judge.
11 There was no witness called for either defendant. However, a safety/environment incident report was admitted into evidence, apparently prepared shortly after the accident by an employee of Pioneer. This report gave the following account of what happened:
- Asphalt plant working both day and night shift. Charlie was on night work driving front-end loader and was filling cold feed bins. He had dumped a bucket of sand into the bin and was reversing down the ramp. As he reversed he looked into rear vision mirror and saw nothing. A few seconds later he heard a horn sounding. He immediately applied the brakes and before coming to a halt the rear of the loader collided with the left-hand side front drive axel of a truck and dog trailer. Charlie estimates approximately two seconds elapsed between hearing horn and impact.
12 The “Charlie” referred to in that report was Mr Saliba; and Mr Saliba apparently signed the document to confirm that this was an accurate description of the events.
13 The Report also contained the following note:
- Majority of raw material deliveries are made at night. When asphalt plant is open at night normal practice has been for aggregate delivery vehicles to pull up at RAP stockpile and wait for recognition from loader before proceeding. Driver in question was casual and may not have been aware of accepted practice. Driver has been recently hired by Pioneer Transport as a casual.
14 The Report recommended that a system be formalised for the entry of trucks into the stockpile area while the asphalt plant was working. A prominent sign was subsequently erected near the entrance to the quarry, in the following terms:
- STOP – If front-end loader (F.E.L.) is working ahead make contact with F.E.L. operator via CB channel 27. Do not proceed into area until you have been instructed to do so.
15 It was not established at the hearing that Hanson was owner or occupier of the quarry; and photographs of signs near the approach to the quarry could have supported an inference that Pioneer was. However, Pioneer having admitted liability, it was not suggested to the primary judge that this was on any basis other than vicarious liability for the driver’s negligence. On the other hand, as against Hanson, it was put to the primary judge that Hanson had a duty of care as a “host employee” in accordance with cases such as TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. No point was taken before the primary judge or before the Court of Appeal that this was outside the pleadings.
Decision of primary judge
16 The primary judge held (par [11]) that Adecco had placed the plaintiff under the total control of Hanson; and that, in accordance with Christie, Hanson had an obligation to provide the plaintiff with a safe place and safe system of work. He held (par [12]) that the quarry was not safe, because Mr Saliba did not know the plaintiff was there, and the plaintiff had not been given any instructions or told that any system had been provided to him to notify workers at the quarry of his arrival. He held (par [14]) that providing a system of notice, or advising the plaintiff what he should do, was within the range of inexpensive options that could have been adopted by Hanson.
17 The primary judge also held (par [15]-[16]) that a reasonable inference from the Report was that there was a system in place that required notice to be given to the loader driver, but that Hanson gave no notice of that practice to the plaintiff.
18 Accordingly, the primary judge found Hanson as well as Pioneer liable in negligence.
19 The primary judge found Adecco also liable, to the extent of 20 per cent. As between Hanson and Pioneer, the primary judge decided (at [26]) “that the obligations that each owed to the plaintiff was such that the percentage each defendant should bear is 50 per cent.”
20 On damages, the primary judge made the following findings, which are not challenged on appeal:
Findings on the medical evidence
39. A review of this medical evidence leads me to find the following facts:
(1) At the date of accident the plaintiff had asymptomatic pre-existing degenerative changes of minor degree in the lumbar spine.
(2) That in the accident he aggravated these pre-existing degenerative changes and they became symptomatic.
(3) He sustained an annular tear at L5/S1 which has caused continuous pain and restricted movement.
(4) As a consequence of the above injuries he has experienced referred pain into the legs.
(5) He is now unfit for the range of tasks referred to in the report of Dr Deveridge.
(6) The pain, discomfort, restriction of movement and restricted work capacity are permanent.
(7) Although operative treatment is possible, it is unlikely and the most likely future treatment will be conservative treatment by way of strengthening exercises and some physiotherapy or hydrotherapy.
Findings as to the effect of the accident on the plaintiff's employment
40. I also find the following facts about his employment history and the effect of the accident on his work capacity:
(1) After leaving school in New Zealand he worked with his father on a farm and drove small vehicles transporting animals.
(2) After his arrival in Australia he obtained employment driving trucks and has done so all his working life since then.
(3) That before the accident of 4 June 2002 he was fit to drive trucks on an unrestricted basis, particularly the type of heavy vehicle provided for him by Hanson.
(4) As a consequence of the accident he is no longer fit to work full-time as a truck driver due to continuing back pain and restricted movement. He cannot drive for long periods of time. This means he cannot do his pre-accident job.
(5) He has an ability to drive trucks on a restricted basis. Such restriction means that he not be on the road for too long at any one time. If he only drives for short periods over short distances the aggravating effect on his lower back is less and he can work.
(6) The degenerative changes in his back will progress slowly and it is unlikely he will be able to continue work as a truck driver through to age 65.
(8) Although the evidence about this was ambiguous it is possible that Multiserv may not continue to have its current contract with BHP under which the plaintiff is presently employed as a permanent driver. Should this happen, and he is thrown on the open labour market to obtain work through labour hire companies then his earning capacity would clearly be restricted because of his accident-induced disability.(7) He has the opportunity to work overtime in his present job with Multiserv, but additional hours of work are contra-indicated because of medical opinion and his own experience.
21 The primary judge found that at the time of the accident the plaintiff was capable of earning up to $800 net per week, depending on the number of hours he was called in to work. After the accident, because of back pain, it was increasingly difficult for the plaintiff to face constant driving on the open road. However, he was able to obtain employment with Multiserv. His employment with Multiserv required the plaintiff to drive no more than seven kilometres on any one journey and on some days hardly at all. Nonetheless he received a gross wage of approximately $1,440 net per week, substantially more than he was earning at the date of the accident.
22 The primary judge noted that the plaintiff’s claim against Hanson was to be determined under the Civil Liability Act 2002, while his claim against Pioneer was under the Motor Accidents Compensation Act 1999 (with the consequence that the plaintiff could not recover non-economic loss against Pioneer).
23 The primary judge assessed the injuries and disabilities of the plaintiff at 35 per cent of a most extreme case, translating to $154,500.
24 He allowed past medical expenses of $29,569.41, and future expenses of $15,000.
25 As regards past economic loss, the primary judge took a figure of $700 net per week, and applied it to the period from the accident to 18 July 2004 (110 weeks), at the end of which the plaintiff commenced employment with Multiserv NSW Pty Limited. To this he added $8,500 for lost opportunity to work overtime with Multiserv, giving $85,500.
26 As regards future economic loss, the primary judge made the following findings:
56. The plaintiff called Mr McDonald from BHP to give evidence about the duration of its contract with Multiserve as the plaintiff contended it was likely to end soon and he could lose his job.
58. As an alternative, the plaintiff claimed a reduction of earning capacity on the open labour market pitched at $500 net per week. In this regard it was important to note that he now earns significantly more than it is likely he would have earned if he had not been injured and in my opinion this establishes his current earning capacity. I find that it is not likely the plaintiff will have this job until he is 65 and may find he has to take less remunerative jobs from time to time.57. The evidence about this potential loss was ambiguous. The plaintiff had said that he drove a tanker. This tanker had solid waste which it loaded and unloaded. This appeared to be work that was connected with the contract that Mr Macdonald said had 10 years to run rather than the contract that was to be renegotiated in October this year. In my opinion, the plaintiff has not established on the balance of probabilities that the contract will be lost and/or that he will necessarily lose his job at Multiserv without being able to obtain, as a permanent employee, alternative work. No one from Multiserv was called about this.
27 The primary judge found the plaintiff’s current earning capacity to be approximately $75,000 net per annum; and found that the plaintiff had lost “a significant degree of that capacity”, and allowed him $400 net per week to age 65 less 20 per cent for contingencies, giving $241,000.
28 To the figures for past and future economic loss, the primary judge added superannuation of 11 per cent, giving $9,405 and $26,570 respectively.
29 In addition, the primary judge made an allowance for house maintenance now beyond the plaintiff, allowing future costs of this and any other assistance required for mowing at two hours per month at $30 per hour, giving $15,000.
Issues on appeal
30 Hanson relies on the following grounds of appeal:
1 His Honour erred in finding that the Appellant duty of care was to ensure the safety of the First Respondent and in failing to find that the obligation on the Appellant was to exercise reasonable care for the safety of the First Respondent [12].
2 His Honour erred in concluding that the Appellant was in breach of its duty of care to the First Respondent because it failed to install at the gate to the quarry a telephone by which the First Respondent could be connected to the driver of the front end loader [13].
3 His Honour erred in concluding that the Appellant was in breach of its duty of care to the First Respondent because it had failed to provide a system of notice and to advise the First Respondent of what he should do. [14]
4 His Honour was in error in failing to find the content of an appropriate notice and/or instruction(s) the Appellant should have given and failed to find the manner, means and circumstances by which such notice and or instruction this should have been communicated to the First Respondent and/or the second respondent. [14]
5 His Honour erred in concluding that the Appellant could and should have installed a light on the loader and formalised a system of entry to the stockpile area. [18]
6 His Honour erred in concluding that any breach of its duty of care owed to the First Respondent by the Appellant was a cause of the injuries to the First Respondent.
8 His Honour erred in apportioning liability between the Appellant and the Second Respondent equally in that he wrongly concluded against the Appellant that it could and should have:7 His Honour erred in failing to discount the verdict in favour of the First Respondent for contributory negligence in circumstances where His Honour found the First Respondent had been to the quarry many times before the accident; that on the occasion of the accident he was aware of the front end loader working there; that he had not made contact with the front end loader driver or any other personnel at the site to warn of his presence and had stopped his truck at the bottom of the ramp on which the loader was working. [20]
(i) installed a telephone at the gate to the quarry for the purpose of communication between the First Respondent and the employees of the Second Respondent, including the loader driver; [13]
(ii) installed lighting on the loader; [18]
(iv) influenced activities at the quarry whereas the site and its operations were controlled by the second respondent. [19](iii) devised a procedure whereby the presence of the First Respondent would come to the notice of employees of the Second Respondent including, inter alia, the driver of the low loader; [19]
10 The amount allowed for future economic loss ($241,000) calculated as a loss of $400 per week for the remainder of the First Respondent's working life was excessive having regard to the findings made by His Honour that:
9 The amount allowed for non-economic loss was excessive and beyond an appropriate discretionary range. The Appellant submits that the allowance should have been no more than 20% of a most extreme case. [42]
(i) at the time of the accident the Plaintiff’s capacity to earn was $700 net per week driving a truck; [51]
(ii) the First Respondent did not on the balance of probabilities establish that the contract on which he was then employed would be lost or that he would lose his current employment and be unable to find alternative permanent employment; [57]
(iv) the First Respondent's current earnings established his earning capacity in the sum of $1,442 net per week. [58][59](iii) the First Respondent was earning significantly more than he was likely to earn had he not been injured; [58]
11 His Honour was in error in allowing the sum of $85,500 for past economic loss including $8,500 for lost opportunity to do overtime:
(ii) His Honour failed to account for wages received by the Plaintiff after the accident and before 18 July 2004 in the sum of $22,235.90.(i) when the First Respondent was in fact working 48 hours per week; [34]
12 His Honour was in error in allowing any amount for domestic assistance. [60]
31 The plaintiff relies on the following grounds for his cross-appeal:
1. His Honour erred in finding that the cross-appellant, as at the date of the trial, drove a tanker vehicle in connection with a contract between his employer Multiserve and Bluescope Steel for the loading and unloading of solid waste, which contract had 10 years to run [57].
2. His Honour erred in failing to find on the evidence that the plaintiff, since being employed with Multiserve was employed to drive vehicles transporting scrap metal, which contract was due to expire in October 2009 and for which Bluescope Steel had called for and received three tenders and had not invited any tender from Multiserve. His Honour ought to have found that it was not likely that Multiserve would be successful in obtaining that contract which would put at risk the cross appellant's employment with Multiserve.
3. His Honour erred in failing to take into consideration the matters referred to in Ground 2 above in determining the value of the cross-appellant's loss of earning capacity and future economic loss.
4. His Honour erred in finding that the cross-appellant had not established on the balance of probabilities that the cross-appellant would necessarily lose his job at Multiserve without being able to obtain, as a permanent employee, alternative work [57].
6. His Honour erred in departing from utilising the normal 15% for vicissitudes when assessing the award for future economic loss [59].5. His Honour erred in failing to assess future economic loss by reference to a higher figure for loss of capacity to earn than that utilised by his Honour [59].
32 For its cross-appeal, Pioneer relies on grounds the same as or substantially similar to grounds 7 and 10-12 of the grounds relied on by Hanson.
33 I will consider in turn the following issues:
- (1) the liability of Hanson;
(2) contributory negligence;
(3) apportionment between Hanson and Pioneer;
(4) non-economic loss;
(5) past economic loss;
(6) future economic loss;
Liability of Hanson(7) domestic assistance.
34 The following submissions were made for Hanson:
- (1) The primary judge erred in expressing Hanson’s duty as a duty to ensure the safety of the plaintiff, rather than to exercise reasonable care for his safety; and this materially affected his decision.
(2) The primary judge erred in holding that the accident occurred because there was no system in place whereby the plaintiff would notify the driver of the loader of his presence, when in fact it occurred because of the plaintiff’s failure to stop his truck in a safe place and the loader driver’s failure to keep a proper lookout.
(3) The primary judge erred in focussing retrospectively on the cause of the particular collision rather than considering the matter prospectively, from the point of view of a reasonable person in Hanson’s position.
(4) Hanson’s duty of care permitted acknowledgment of the plaintiff’s knowledge and experience as a truck driver; and to require that Hanson provide a system of notification went beyond what was required to discharge a duty to exercise reasonable care.
(5) In circumstances where Hanson did not own, control or occupy the quarry, it was not in a position to establish a system of communication or notice to loader drivers.
(6) The primary judge did not specify what instruction should have been given to the plaintiff or what system of notification should have been established, or how this would have avoided the accident.
35 The view of the primary judge that Hanson owed a duty of care to the plaintiff similar to that of an employer to an employee, in accordance with Christie, was not challenged. In my opinion, the reasons of the primary judge show that he addressed the question of whether Hanson failed to exercise reasonable care, and did not treat the matter at issue as being whether Hanson failed to ensure the safety of the plaintiff. It is not uncommon to find expressions such as “duty to provide a safe place of work and a safe system of work” or “duty to ensure the employee’s safety”, when what is meant, fully expressed, was a duty to exercise reasonable care to those ends. In my opinion, so long as a judgment shows that the judge appreciated that the question was whether reasonable care was exercised and addressed that question, the use of such expressions does not of itself indicate error by the judge. The judgment in this case, read as a whole, shows that the primary judge appreciated and applied the correct test.
36 The circumstance that the loader driver’s failure to keep a proper lookout, was a contributing cause of the accident, does not exclude the lack of a system of notification as a further contributing cause.
37 In my opinion, it was open to the primary judge to take the view that the exercise of reasonable care by Hanson required it to be aware of the conditions at the place to which it was frequently sending the plaintiff, and to assess the safety of those conditions. To the extent that there was a system of notification of loader drivers in place, reasonable care would have disclosed that system to Hanson, and required Hanson to notify the plaintiff of that system; and the decision of the primary judge can be upheld on the alternative basis relied on by him, namely that the Report indicated there was a system which Hanson did not tell the plaintiff about. There is no error in the primary judge’s conclusion to that effect.
38 As regards the other basis for his decision, namely that reasonable care required Hanson to establish such a system, in my opinion a finding to that effect was also available to the primary judge. I note incidentally that the plaintiff’s allegation in the statement of claim that Hanson was formerly known as Pioneer Construction Materials Pty Limited (and thus perhaps was a company closely associated with Pioneer) was not denied by Hanson; and as mentioned earlier, photographs of signs at the approach to the quarry could support an inference that Pioneer was the occupier of the quarry. But quite apart from inferences that might be drawn from these matters, the evidence was that the plaintiff was going to the quarry on behalf of Hanson five to ten times a week over the two months he was working for Hanson; and in my opinion, it would not have been unreasonably burdensome for Hanson to liaise with the quarry occupier to establish a system such as that put into place after the accident to avoid the obvious risk of a collision between front-end loaders and trucks delivering material to the quarry. The plaintiff gave evidence, accepted by the primary judge, that the practice of quarries other than Wallgrove was often that a truck driver had to stop at the entrance and make radio contact with the quarry staff before proceeding. In my opinion, there is no error in the primary judge’s conclusion that Hanson’s failure to do this was a breach of its duty of care.
Contributory negligence
39 It was submitted for Hanson (and Pioneer) that the primary judge was in error not to find the plaintiff guilty of contributory negligence. It was put that, in circumstances where the plaintiff had not alerted the loader driver to his presence, parking where he did amounted to a lack of reasonable care for his own safety; and it was also put that he should have sounded his horn earlier to alert the loader driver.
40 In my opinion, there was no error by the primary judge in his assessment that the plaintiff was not shown to have failed to exercise reasonable care for his own safety. He was in a large vehicle, with its lights on. It was not explicitly put to the plaintiff that he should have parked elsewhere, let alone where he should have parked, or that he should have sounded his horn earlier.
Apportionment
41 It was submitted for Hanson that the actions of the driver involved greater negligence than any breach by Hanson of its duty of care, and also contributed more substantially and directly to the accident. Further, Pioneer was in a position where it could have established a system of notice and communication. In these circumstances, it was submitted, equal apportionment of liability was so unreasonable to justify appellate intervention.
42 However, as noted above, there was no claim against Pioneer other than on the basis of its vicarious liability for the negligence of the driver; so the liability of Pioneer for the purposes of apportionment is limited to its liability on the basis of the driver’s negligence.
43 As with apportionment for contributory negligence, an appeal court should not intervene on apportionment under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 unless error appears in the reasons or the result is plainly unreasonable: cf Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 at 493-4.
44 To assess comparative degrees of fault as between a failure by a person in the position of an employer to fulfil the particular and important duty of care owed to a person in the position of an employee, on the one hand, and a casual act of negligence in breach of a general duty of care owed to people generally, on the other hand, is very much a matter of judgment as to which reasonable minds can differ; and the same applies to assessing comparative degrees of contribution to the happening of the accident. I am not able to say that the primary judge’s assessment was unreasonable to the extent of justifying appellate intervention.
Non-economic loss
45 It was submitted for Hanson (and Pioneer) that the finding of 35 per cent for non-economic loss was disproportionate to the injuries and residual disability experienced by the plaintiff, was excessive, and was beyond a sound discretionary judgment; and that it should be revised to 20 per cent. This was particularly so, it was submitted, when the evidence was that degenerative changes in the plaintiff’s back could have resulted in disability even without the accident.
46 It was pointed out that the primary judge placed reliance on a report of Dr Deveridge dated 16 December 2003, which contained an assumption that the plaintiff would be unable to work for more than 25 hours per week, when the fact was that the plaintiff at the time of the trial was working 48 hours per week (four 12 hour shifts).
47 In my opinion, the latter point does not detract significantly from the weight to be given to Dr Deveridge’s report. The evidence was that, although the plaintiff was on duty for four 12 hour shifts per week, each shift involved driving for short periods totalling on average about four hours per shift.
48 The primary judge accepted the plaintiff as both reliable and truthful. He accepted the plaintiff’s evidence concerning substantial pain and discomfort. In addition to the particular findings referred to above, the plaintiff gave evidence of inability to play sport as he had before the accident, and of difficulties in interacting with his children. At the date of the trial, he was only 40 years old.
49 In all the circumstances, although 35 per cent could be considered at the higher end of the range, it is not in my opinion so high as to justify appellate intervention. Indeed counsel for Hanson at the trial accepted that an award of 35 percent, although at the high end, was not outside the range available to the primary judge.
Past economic loss
50 It was established below that, during the 110 weeks between the accident and the commencement of his employment with Multiserv, the plaintiff had earned $22,235.90 from Adecco; and it was common ground that this should be deducted from the figure for past economic loss and that there be a consequential adjustment to superannuation. What was in issue was $8,500 in respect of lost opportunity to work overtime.
51 The primary judge found that the plaintiff “now earns significantly more than it is likely he would have earned if he had not been injured” (par [58]); and while this is not spelled out, it must be that the primary judge considered that, but for the accident, the plaintiff would probably have continued in employment with Adecco earning at similar levels as before the accident. That is, he would not have looked around for other employment, as he in fact did, and would not have obtained the more lucrative job with Multiserv. There is no challenge by the plaintiff to this finding of the primary judge.
52 In my opinion, this does have the consequence that the loss of opportunity to earn overtime with Multiserv cannot be considered as past economic loss caused by the accident: but for the accident, the plaintiff probably would not have been working for Multiserv and in fact would have been earning less than what he was earning at Multiserv. Accordingly, the figure of $8,500 should come off past economic loss.
Future economic loss
53 In considering future economic loss, regard should be had to s 13 of the Civil Liability Act 2002 to which his Honour’s attention was apparently not directed. Section 13 reads as follows:
13 Future economic loss—claimant’s prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
54 In support of his cross-appeal, the plaintiff sought to rely on an affidavit by his solicitor showing that his employment with Multiserv had in fact ceased on 30 September 2009. The Court indicated that it would decide on the admissibility of that evidence in its judgment. The plaintiff also sought to rely on an affidavit by the plaintiff himself; but in circumstances where that affidavit was served very shortly before the hearing, and where the other parties wished to respond to it if it were admitted, the Court decided to reject that affidavit on the ground that it had not been served a reasonable time before the date fixed for the hearing of the appeal and cross-appeal.
55 For Hanson (and Pioneer) it was submitted that the primary judge erred in basing the award for future economic loss on a loss of capacity referable to his then current earnings of about $75,000 net per year, which were substantially in excess of pre-injury earnings and in excess of what it was likely that the plaintiff would have earned if he had not been injured. It was submitted that the plaintiff should have been awarded no more than a buffer in the order of $60,000.
56 For the plaintiff, it was submitted that the primary judge erred in finding that the plaintiff had not established on the balance of probabilities that he would shortly lose his job with Multiserv, and not be able to obtain alternative work. Further, the evidence now showed that the plaintiff’s employment with Multiserv had been terminated.
57 It was submitted for the plaintiff that future economic loss should be awarded on the basis of a loss of a total of $826.88 per week, for 25 years (multiplier 753.6) less 20 per cent for contingencies.
58 Dealing first with the question whether the affidavit should be admitted into evidence, general principles in relation to evidence of this kind have been stated by Lord Wilberforce in Mulholland v Mitchell [1971] AC 666 at 679-80, to the effect that it is a matter of “discretion and degree” and that:
- Negatively, fresh evidence ought not to be admitted when it bears on matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront commonsense, or a sense of justice. … The exceptional character of cases in which fresh evidence is allowed is fully recognised …
59 This approach has been applied in New South Wales in Warr v Santos [1973] 1 NSWLR 432, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235 and Doherty v Liverpool Hospital (1991) 22 NSWLR 284.
60 In my opinion, the fresh evidence in this case does “bear on matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made”; and I would not admit it for the purpose of making good a ground for challenging the primary judge’s assessment of future economic loss. However, if grounds for intervening in that assessment are otherwise made out, so that this Court has either to assess that element of damages itself or order a new trial, then fresh evidence of this kind is much more readily admitted: Warr. For reasons I will give, I do think grounds for intervening in the primary judge’s assessment of future economic loss are otherwise made out, and I would admit the affidavit for the purpose of assisting this Court in assessing that element of damages.
61 I am not satisfied the primary judge erred in the respect submitted by the plaintiff. The plaintiff did give evidence that one of his roles was to drive a pneumatic tanker, into which solid material is pumped and then pumped out at another location (Black 90C-M), and it appears that it was on that basis that Mr McDonald of BHP expressed the view at trial that the plaintiff’s job concerned a contract that was not to terminate on 30 June 2009. The plaintiff did give evidence that he also drove trucks filled with scrap metal, but it was not put to Mr McDonald that this meant his job must concern the contract that was to terminate on 30 June 2009; so in my opinion the conclusion of the primary judge was one that he could reasonably reach.
62 However, in my opinion the primary judge did err in the way contended for by Hanson (and Pioneer). The plaintiff’s future economic loss had to be assessed by comparison with his “most likely future circumstances but for the injury” (Civil Liability Act s13), which was, on the primary judge’s findings, his continued employment with Adecco at the October 2008 equivalent of $700 net per week in June 2002. The Court was not provided with evidence of what that equivalent was, but applying the available CPI figures, it would appear to be about $850 per week net.
63 On one view, it might be said that the primary judge assessed the plaintiff’s residual capacity at just over $1,000 net per week, suggesting that there should be no future economic loss. In my opinion, the better view is that the primary judge assessed his residual capacity on the basis of a loss of about 28 per cent, which gives a figure of about $400 when applied to $1,440 per week (derived from $75,000 per year). Applying the same percentage to $850 per week would give a loss of about $250 per week.
64 It was submitted for the plaintiff that he has now lost his job with Multiserv and is virtually unemployable. However, the plain fact is that, to his credit, the plaintiff was able to obtain the job at Multiserv and retain that job for five years, after which he was made redundant because of the economic downturn. There was no suggestion that he was unable to perform the job or did not perform it satisfactorily.
65 In my opinion, an assessment of the plaintiff’s residual capacity at about $600 per week, that is, substantially less than half of what he was earning with Multiserv, is a reasonable assessment; and on that basis I would award future economic loss on the basis of $250 per week, applying the multiplier of 753.6 and deducting 20 per cent for vicissitudes, giving $150,720.
Domestic assistance
66 Hanson (and Pioneer) referred to s 15 of the Civil Liability Act, and submitted its requirements were not satisfied.
67 However, in my opinion it is clear that damages under this head were awarded, not on the basis of gratuitous assistance, but on the basis of amounts which the plaintiff could reasonably be expected to actually pay for house maintenance and lawn-mowing. In my opinion, there was evidence that could support the finding of $60 per month.
68 It would have been possible to apply a multiplier of 953.3 to $16 per week, giving little over $15,000. It is not clear if that is what the primary judge did. In any event, in my opinion no error is shown in his figure of $15,000.
Conclusion
69 On the basis of the above reasons, the damages for which Hanson is liable (subject to s 151Z adjustment) should be calculated as follows:
- Non-economic loss $154,500.00
Past expenses 29,569.41
Future expenses 15,000.00
Past economic loss 54,765.10
Superannuation 6,024.16
Future economic loss 150,720.00
Superannuation 16,579.20
Assistance 15,000.00
Total $442,157.87
70 Pioneer is liable for $154,500 less than this, namely $287,657.87.
71 These figures still need to be adjusted in conformity with s 151Z of the Workers Compensation Act.
72 As regards the costs of the appeal and the cross-appeal, on the question of liability, Hanson has failed and Pioneer and the plaintiff have succeeded. On the question of damages, Hanson and Pioneer have had some success, and the plaintiff has failed on his cross-appeal.
73 It would be extremely difficult to separate out the costs of the appeal and the cross-appeal. My tentative view is that Hanson should be ordered to pay Pioneer’s costs of the appeal and cross-appeal, and that the plaintiff should be ordered to pay one-half of Hanson’s costs of the appeal and cross-appeal, and to have a Suitors’ Fund certificate to the extent that those costs are applicable to the appeal.
74 No change need be made to the costs orders below.
75 As regards the form of the orders, in my opinion there should not be judgments for money sums on the cross-claim, because the cross-claimants are not entitled to judgments unless and until they have actually paid the plaintiff. The method that has been adopted in the past has been to give verdicts but not judgments on the cross-claims: Roads and Traffic Authority (NSW) v Turner [2008] NSWCA 48 at [38], Andrews v Nominal Defendant (1962) 63 SR(NSW) 110 at 119-120. It is true, as pointed out by Basten JA, that the term “verdict” is most commonly applied to a jury verdict; but the Uniform Civil Procedure Rules do not limit the use of that term to jury verdicts. See in particular the definition of “verdict” in UCPR 51.2, and also UCPR 51.18(1)(f). An alternative would be to make an appropriate declaration, but I think it is reasonable to continue to follow the procedure used in Andrews and Turner.
76 There is one other matter concerning the content of orders that was not raised below or on appeal but that I should mention, lest this case stand as a precedent. The effect of giving Hanson a verdict against Pioneer for 50 per cent of Hanson’s liability to the plaintiff is that Pioneer will pay as much as Hanson towards the plaintiff’s verdict, even though Pioneer is not liable for non-economic loss and Hanson is liable for non-economic loss. There could be a real question whether this is just and equitable, in terms of s 5 of the Law Reform (Miscellaneous Provisions) Act.
77 In Ace-Semi Trailer Sales Pty Limited v Zurich Australia Insurance Limited [2009] NSWCA 381, it was held (following Estate of Mutton v Howard Haulage Pty Limited [2007] NSWCA 340) that, where an employer would not have been liable for costs if sued by an employee, it was not just and equitable under s 5 of the Law Reform (Miscellaneous Provisions) Act that the employer should contribute to the costs of the employee payable by a third party tortfeasor. The same argument may apply in a case where one tortfeasor is liable for damages for non-economic loss and the other one is not; that is, it might have been arguable that Pioneer (not being liable for non-economic loss) should not have to contribute to Hanson’s liability for non-economic loss.
78 However, to raise that point would have required an appeal on this point to be brought by Pioneer, which did not happen.
79 I propose the following orders:
- (1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Hanson to bring in short minutes of order within twenty-eight days, or if short minutes of order are not agreed, to bring in its proposed short minutes with submissions, with submissions from the other parties to be provided within a further fourteen days.
80 BASTEN JA: I agree with the orders proposed by Hodgson JA at [79] and, with one minor qualification, with his Honour’s reasons.
81 The qualification concerns a purely technical matter. At [75] his Honour has suggested that the orders on the cross-claims, which cannot at this stage constitute judgments for specified sums of money, should be described as “verdicts”. I do not understand the distinction sought to be drawn in relation to the orders made in a trial by a judge alone or, on a rehearing, by this Court. The distinction operates where there is a jury, as was the case in Andrews v Nominal Defendant (1962) 63 SR (NSW) 110. The approach adopted there appears to have been carried over into Roads and Traffic Authority of NSW v Turner [2008] NSWCA 48. (No doubt there are other illustrations of the same practice.) However, the practice does not reflect the language of the Uniform Civil Procedure Rules 2005 (NSW), Pt 36. Nor does the purported distinction carry any self-evident consequence, in circumstances where the “judgment or order” will take effect either on the date on which it is given or made, or when it is entered, which, under the “computerised court record system” is usually the same date: UCPR rr 36.4 and 36.11.
82 This qualification has no bearing on the outcome of the case, nor on the orders presently proposed.
I agree with Hodgson JA.
1
9
5