James Hardie and Co Pty Ltd v Lee
[2001] WASCA 310
•10 OCTOBER 2001
JAMES HARDIE & CO PTY LTD -v- LEE [2001] WASCA 310
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 310 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:131/2000 | 24 MAY 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 10/10/01 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Award of damages varied | ||
| B | |||
| PDF Version |
| Parties: | JAMES HARDIE AND CO PTY LTD PATRICK NITTAN LEE |
Catchwords: | Appeal Damages Personal injury Pre-accident degeneration of spine which would within two years have disabled plaintiff |
Legislation: | Nil |
Case References: | Edwards v Noble (1971) 125 CLR 296 Kars v Kars (1966) 187 CLR 354 Lloyd v Faraone [1989] WAR 154 Muoio v MacGillivray [1962] QR 554 Newell v Lucas [1964-5] NSWR 1597 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 Zumeris v Testa [1972] VR 839 Bowen v Tutte (1990) Aust Torts Rep 81-043 Bresatz v Przibilla (1962) 108 CLR 541 Cardiff Corporation v Hall [1911] 1 KB 1009 Dettenmaier v Minister for Works [1979] WAR 203 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hinnen v Atwood Oceanics Australia Pty Ltd, unreported; FCt SCt of WA; Library No 7378; 18 November 1988 Knight v Anderson (1997) 17 WAR 85 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mulholland v Mitchell [1971] AC 666 Newman v Nugent (1995) 12 WAR 119 Reynolds v Roche Bros Pty Ltd [1999] WASCA 141 Rosenberg v Percival (2001) 75 ALJR 734 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Thomas v O'Shea (1989) Aust Torts Rep 80-251 Van Gervan v Fenton (1992) 175 CLR 327 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JAMES HARDIE & CO PTY LTD -v- LEE [2001] WASCA 310 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- Appellant (Defendant)
AND
PATRICK NITTAN LEE
Respondent (Plaintiff)
Catchwords:
Appeal - Damages - Personal injury - Pre-accident degeneration of spine which would within two years have disabled plaintiff
Legislation:
Nil
Result:
Appeal allowed
Award of damages varied
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Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr D R Clyne
Respondent (Plaintiff) : Mr I L K Marshall
Solicitors:
Appellant (Defendant) : Downings Legal
Respondent (Plaintiff) : S G Nigam & Co
Case(s) referred to in judgment(s):
Edwards v Noble (1971) 125 CLR 296
Kars v Kars (1966) 187 CLR 354
Lloyd v Faraone [1989] WAR 154
Muoio v MacGillivray [1962] QR 554
Newell v Lucas [1964-5] NSWR 1597
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Zumeris v Testa [1972] VR 839
Case(s) also cited:
Bowen v Tutte (1990) Aust Torts Rep 81-043
Bresatz v Przibilla (1962) 108 CLR 541
Cardiff Corporation v Hall [1911] 1 KB 1009
Dettenmaier v Minister for Works [1979] WAR 203
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hinnen v Atwood Oceanics Australia Pty Ltd, unreported; FCt SCt of WA; Library No 7378; 18 November 1988
Knight v Anderson (1997) 17 WAR 85
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mulholland v Mitchell [1971] AC 666
Newman v Nugent (1995) 12 WAR 119
(Page 3)
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Rosenberg v Percival (2001) 75 ALJR 734
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327
(Page 4)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Steytler J. I am in agreement with those reasons and with the orders which his Honour proposes.
2 WALLWORK J: The appellant appeals from a judgment which was obtained by the respondent in the District Court at Perth on 21 July 2000. The judgment was for the sum of $305,004.00, being damages for injuries which the respondent had received in an accident at work.
3 The appeal grounds assert that the learned Judge erred in calculating the damages which were concerned with future economic loss. There is also a cross-appeal from the respondent on the ground that the award is said to be too low.
4 The respondent had been employed by the appellant from 1975 until 9 July 1997 on labouring duties which his counsel described as heavy. When the respondent injured himself, he and another employee were trying to lift the cover of a drain using a crowbar. The cover was jammed in the drain. Eventually it had to be removed with a mechanical lift.
5 The respondent was 53 years of age at the time of the accident. It was nearly three years later when his case came to trial. The trial Judge awarded him damages for loss of earning capacity between the time of the accident and the trial and thereafter for 2 years. He was also awarded a sum for future gratuitous assistance for the period of his life expectancy being approximately 23 years; also a sum for future medical expenses for the same period. The Judge made no deduction for contingencies from the sums awarded for loss of future earning capacity, future gratuitous assistance or future medical expenses.
6 At the hearing of the appeal leave was granted to the appellant to tender an affidavit to the effect that the appellant has made a decision to cease its operations at the place where the respondent was employed at the time of his accident. That cessation is likely to occur in August or September of 2001. Once it has occurred, the majority of the staff at that place will have their employment terminated. They will receive redundancy packages and counselling. The deponent of the affidavit has said that he cannot envisage anyone at the respondent's former level of employment being considered by the appellant for employment relocation after the cessation of operations. Particularly, it is said that the respondent would not have been considered for relocation because he has no computer skills or technical expertise and he has an insufficient level of English language proficiency.
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7 If the contents of the affidavit are accepted, the respondent would not have been employed by the appellant for more than approximately 14 months after the date of the judgment on 21 July 2000.
8 Counsel for the appellant advised that evidence had been given during the trial to the effect that the probabilities were that because of a downturn in the industry the plaintiff would have been offered a redundancy by the time of the trial in June 2000. It was submitted that the learned trial Judge had erred in his assessment concerning the sum for future loss of earning capacity because he had made no allowance for the potential of the respondent losing his employment.
9 The affidavit abovementioned is significant because of the cross-appeal which claims that a greater allowance should have been made for the respondent's loss of future earning capacity arising from his injuries. Counsel for the respondent contended that the fact that the appellant's factory was closing down would not necessarily have affected the respondent's future working capacity as a machine operator in view of the fact that prior to his accident, the respondent had over 22 years of continuous heavy work with that employer. It was contended that but for the accident the respondent would have had a balance of working life to age 65, being nine years; that he would have been able to seek other employment as a machine operator.
10 The appellant, however, contended that because of the respondent's poor grasp of English and the fact that his employment with the appellant had been the only employment he had ever had in Australia after he had migrated to this State, the closing down of the plant had extreme relevance, both to the question of contingencies and to the cross-appeal.
11 The appeal was directed at the components of the damages which were concerned with the appellant's loss of future earning capacity, his requirement for future gratuitous services and his future medical expenses.
12 The appellant's counsel outlined that the respondent had come to Australia as a migrant in 1975. Within a day or two of his arrival, he had obtained work with the appellant with whom he had operated a machine from about 1982.
13 The first ground of appeal which was argued concerned the allowance for future gratuitous services. It was submitted that the respondent had not proved any loss in this regard because the learned trial Judge had not accepted the evidence of the respondent's wife or the
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- respondent to the effect that the respondent had engaged in a wide range of domestic activities prior to the accident.
14 The learned Judge found that in relation to housework the respondent had not established that it would not have been done anyway, and that pursuant to s 93F of the Workers' Compensation Rehabilitation Act 1981 (WA), he could not award damages in that regard. However, the Judge said that he would make an allowance with respect to the assistance given to the respondent by his wife concerning his personal functions. His Honour said:
"In that respect and given my inability to rely on what the plaintiff and Mrs Lee have said to me, any assessment is necessarily a conservative one, based simply on the fact that the plaintiff has had a back injury which has been productive of a reasonable level of symptoms, and in those circumstances some assistance would ordinarily be required."
15 His Honour calculated the sum for assistance for the future on the basis of one hour per day at the agreed hourly rate of $14.65.
16 The appellant contends that no sum should have been allowed for future gratuitous assistance in view of his Honour's "inability to rely on what the plaintiff and Mrs Lee have said to me."
17 However, his Honour did not base his assessment on what the respondent and Mrs Lee had said to him, but primarily on the basis that some assistance would ordinarily be required because the respondent had had a back injury which had been productive, and would be productive, of a reasonable level of symptoms. His Honour awarded the damages to the respondent "in respect of personal function." I understand his Honour to have awarded these damages for such things as the alleged loss of the respondent's ability to drive a car, lift things, shop, dress, get his meals, take medication and similar activities.
18 It was contended for the appellant that there had been no evidence of the plaintiff losing personal services and that the Judge had specifically said he was unable to "generally rely on the plaintiff's evidence"; also that the Judge had not relied on the respondent's wife's evidence in that respect either.
19 His Honour said that "any assessment is necessarily a conservative one based simply on the fact that the plaintiff has had a back injury which
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- has been productive of a reasonable level of symptoms and in those circumstances some assistance would ordinarily be required."
20 A Judge is entitled to make the best assessment he or she can in such circumstances - see generally on this question, the discussion in Luntz, Assessment of Damages for Personal Injury and Death, 3rd edn, 98 - 99. There was evidence of the injury to the plaintiff and how it had affected him. It seems to me that the award of one hour per day is a conservative one, as the learned Judge described it.
21 It was further contended for the appellant in this regard, that the medical evidence of Mr Batalin, Professor Hollingworth and Dr Connaughton had been to the effect that the respondent's pre-existing condition was likely to have rendered him unable to work as at the date of the trial. However, an inability to work would not necessarily affect the claim for gratuitous assistance. The assistance will be required by the plaintiff because of the injury he received at the time of his accident.
22 In my view, it cannot be said, as the appellant does, that the respondent did not establish a loss in the sense required by Kars v Kars (1966) 187 CLR 354 at 372. Neither can it be said, in my opinion, as argued for the appellant, that "it is entirely unclear as to just what the allowance was for and it is therefore impossible for the appellant to properly challenge that finding" – Lloyd v Faraone [1989] WAR 154.
23 The award for future gratuitous services was for $67,786 being calculated on the basis of an allowance of one hour per day for the remainder of the respondent's life. The learned trial Judge had recourse to life expectancy tables.
24 It was contended for the appellant that the future life expectancy of the respondent had not been agreed and that that was particularly important, given the fact that the respondent was not born in Australia and had suffered from tuberculosis as a child, and had a variety of significant and severe health problems. It was also said that the learned Judge had not made any discount for contingencies as he should have done, in the light of the numerous other health problems from which the respondent suffered.
25 His Honour said in his reasons for judgment that he did not make any deduction for contingencies with respect to future gratuitous assistance "and in respect of the likelihood that the plaintiff would have experienced some back symptoms in any event, I do not find that the defendant has discharged its onus in that respect in relation to any need for gratuitous
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- services, given that there is no evidence to that effect, and given that the allowance made for services is, as stated, confined to that for personal assistance. Again, and in any event, not all contingencies are, from the plaintiff's viewpoint, adverse and the assessment is, as also stated, a conservative one".
26 In my view his Honour's reasoning with respect to the contingencies cannot be said to be incorrect. His Honour knew of the evidence that the respondent would have suffered from back pain by the date of the trial from non-accident related causes. Also, the appellant's contentions that the learned trial Judge had, generally speaking, preferred the pessimistic assessments of Mr Batalin and the two occupational specialists called by the appellant, to the more optimistic expressions of view given by Professor Harper and Mr Narula concerning how long the plaintiff might have worked, do not invalidate the learned Judge's finding as to the future need for gratuitous assistance.
27 The evidence was that approximately 18 months after the accident the respondent had been suffering from various ailments, including knee pain and back pain. The knee pain was not directly related to his inquiry. However, the respondent had been forced to give up work and was in considerable pain due to his work-related injury. He had lost muscle tone. Dr Salmon had reported:
"He reports a left and right knee pain, which is becoming an increasing problem for him. His back pain is exacerbated by sitting and his knee pain by standing and walking. The result is that he seems to be spending more and more time bed bound."
28 The respondent also had symptoms in his neck radiating into one arm.
29 His Honour made a judgment concerning the gratuitous assistance having regard to all the medical evidence, including that of Mr Lee who said that the respondent had suffered a myofacial tear to the tissues surrounding his kyphosis. Mr Lee also said that with the passage of time it had become apparent that the injury was probably a little more than a myofacial tear. Mr Lee felt that the forces involved in the accident had decompensated a long-standing problem in the respondent's back. It is significant the learned trial Judge found that the respondent had effectively lost his earning capacity "as a result of the accident as Mr Lee said in March 1995".
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30 In my view, the ground of appeal concerning the sum awarded for future gratuitous services should not be upheld.
31 The next ground of appeal argued was that the learned trial Judge had erred in allowing the respondent damages for the loss of future earning capacity for two years following the trial, without any deduction for contingencies.
32 The judgment was delivered approximately three years after the accident, soon after the respondent's 56th birthday. It was pointed out for the appellant that the learned Judge had said that an evidentiary onus lay on the appellant to establish that any incapacity of the respondent had been due in whole or in part, to all or some of his pre-accident problems – Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; that his Honour had then stated that he considered that the appellant had discharged any evidentiary onus on it. His Honour had accepted the evidence of the appellant's specialists in preference to that of the respondent's specialists.
33 The appellant contended that in all the circumstances the learned Judge should have found that the respondent would have had a disabling episode not related to his accident, within two years of the accident date.
34 Mr Batalin's evidence had been that the respondent would have had a disabling episode within 2 years of the accident date and his chances of not being disabled within that time would have been very low. Professor Hollingworth had said, that had the accident not happened, the probabilities were that the respondent would not have been working as at the date of the trial. Mr Connaughton had said that the chances of the respondent not being disabled within two years of the accident would be very low.
35 The learned Judge was aware of the abovementioned opinions and said in his reasons for judgment:
"As to the question of how long the plaintiff might have worked had the accident not occurred I would, speaking generally, (my emphasis) prefer the pessimistic assessment of Mr Batalin and the two occupational specialists called by the defendant to the more optimistic expressions of view given by Professor Harper and Mr Narula."
36 His Honour also said:
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- "As to the age at which the plaintiff might have found it necessary to cease work, if the accident had not occurred, it is the case that since Watts v Purkis the fact that any assessment of that kind relates to a hypothetical event, and thus requires a consideration of all competing possibilities rather than a finding on balance of probabilities, has been emphasised: see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332."
37 His Honour continued:
"Following any such consideration a balance must of course be struck which reflects all of those possibilities. In the present case, clearly more than one particular outcome was possible immediately prior to the accident. Doing the best that I can, and having regard to the evidence as to the plaintiff's pre-accident medical condition and skills, the defendant's operations, the medical evidence and my findings above, I would assess loss of economic capacity on the basis of an allowance for lost wages and any overtime to date and then for a further 2 years, without any additional deduction for contingencies for the possibility that the plaintiff would have taken a redundancy, or otherwise."
38 It is apparent from those remarks that his Honour was doing the best he could and that he did not overlook the evidence which he had heard.
39 In Edwards v Noble (1971) 125 CLR 296, Barwick CJ said at 304:
"In any appeal against a finding of fact, (whether or not by way of rehearing), however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong. But in deciding that its own view is right and that of the primary judge wrong, the nature of the 'fact' found by the primary judge is a matter for consideration. Many of the 'facts' within the province of the jury involved elements of judgment, some evaluative aspects akin to an exercise of discretion. Perhaps the 'fact' of
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- negligence or no negligence is of this kind. Others of such facts are mere inferences from other facts or combinations of facts, though even in that case there is an element of judgment in the decision to draw or not to draw an inference or to prefer one where more than one inference is reasonably open. But, in any case, the appellate court in my opinion is not bound to reverse a primary judge's finding of fact merely because it holds a different opinion to that of the primary judge."
40 In my view, the learned Judge made a judgment having regard to all the evidence, and it has not been shown that he erred in the course of doing that.
41 Applying Barwick CJ's remarks, it does not assist the appellant to say, as it does, that given the fact that the respondent had only ever worked as a labourer for the appellant at a place where there was a large Burmese-speaking workforce, it was highly improbable that he could have obtained alternative employment in light duties, and that in those circumstances there should not have been any award for future economic loss for two years post-accident.
42 Further, in my view, it does not assist the appellant to say, as it does, that:
"The evidence was that the appellant's workforce was being significantly reduced and that either, at the date of trial, or within six months thereafter, the respondent would have been made redundant in any event. In those circumstances a significant discount for contingencies should have been made notwithstanding the short period over which the assessment was made."
43 I do not overlook the affidavit evidence that the entire plant will be closed by the end of 2001.
44 The appellant also complains that the two year allowance, if made, should have included a significant discount for contingencies, given the nature of the medical evidence which the learned trial Judge accepted.
45 In my view, the learned Judge has taken that evidence into account in his overall assessment. There was always the possibility that the appellant could have worked for more than two years after the trial.
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46 Many of the contentions advanced by the appellant in this appeal were based on the proposition that the learned trial Judge had not been able to rely on what the plaintiff and Mrs Lee had said to him. His Honour said, amongst other things: "I am unable to generally rely on the plaintiff's evidence".
47 His Honour did not say that he disbelieved everything that the plaintiff had said. He assessed the evidence with the express reservation of stating that he was not able to rely on what the plaintiff and his wife had said.
48 In my opinion, this ground of appeal has not been established.
49 The third ground argued by the appellant concerned the sum awarded for future medical expenses. The Judge awarded the sum of $9,540 for this aspect, based on an allowance of $750 per annum for the rest of the respondent's life.
50 The appellant relied on the decision of Lloyd v Faraone (supra) for the submission that it is impossible to know what evidence the award was based upon and also contended that it is impossible to know whether the need for future medical expenses relates to that part of the respodent's spine which was injured in the accident. The appellant contends that it is not clear whether the need for medical expenses arose from the thoracic or the lumbar spine, or from the respondent's other multiple health problems. The appellant says that the respondent did not discharge the onus of proof upon him in this regard and that, in any event, the use of the life expectancy tables was inappropriate.
51 In Lloyd v Faraone (supra) at 161, Malcolm CJ said:
"The onus of proof of damage rested on the respondent throughout. Thus, if his Honour was not satisfied on the balance of probability that any aspect of the claim for damages had been proved, he should have made a finding against the respondent… In the absence of any assessment or explanation of the approach taken to each component it is virtually impossible to determine the correctness or otherwise of the award. As Sachs LJ, (with whom Buckley and Orr LJJ agreed) said in George v Pinnock [1973] 1 WLR 118 at 126; [1973] 1 All ER 926 at 934 the 'plaintiff and defendant alike are entitled to know what is the sum assessed for each relevant head of damage and thus to be able on appeal to challenge any error
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- in the assessments. In my judgment, this Court should be slow to emasculate that right of litigants.'"
52 His Honour continued:
"This passage was referred to by Gibbs and Stephen JJ with apparent approval in Sharman v Evans (1977) 138 CLR 563 at 572 who said that:
'Moreover where the assessment of damages is undertaken by a Judge sitting without a jury it is, we think, most desirable that the process of assessment should be described in the reasons for judgment. As was pointed out by Sachs LJ in George v Pinnock it is only by the setting out in a judgment of the main component of an award of damages, or at least of the approach taken to each component, that the parties may obtain a proper insight into the process of assessment and an adequate opportunity of seeking the correction of error on appeal.'"
"It is not possible to estimate with any precision the extent of the future medical and pharmaceutical needs of the plaintiff, given my findings. Not all of his needs will in any event be accident-related. Only a general assessment can be made and I allow $750 per annum."
54 His Honour said that in this regard he would not make any reduction for contingencies "those being of each kind."
55 Mrs Lee had given evidence as to the tablets which she normally gives her husband and when she gives them to him. She gave evidence that she rubs cream into his back about four times a day to relieve his back pain. The respondent takes tablets for pain. Evidence was given that the pain is such that he cannot get out of bed without assistance. He visits Dr Tan once a month.
56 With respect to the need for future medical treatment, Mr Narula said that further reviews of medication are necessary. Professor Harper agreed with that. The costs of the various drugs were introduced into evidence through a certificate from the pharmacist at the Girrawheen Pharmacy.
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- Mr Salmon said that the respondent takes M S Contin twice a day and Endone on an average twice per day. A packet of 20 Contin tablets costs $46.95 (ie for 10 days). A packet of 20 Endone tablets costs $49.95 (ie for 10 days).
57 In accord with the reasons in Faraone, the learned trial Judge set out his approach to the assessment of the future medical expenses. The $750 per annum allowed is approximately $14.50 per week. It is a relatively small amount and clearly much less than the respondent spends on medication and doctors' visits.
58 With respect to the use of the life expectancy tables, unless there is objection taken to such tables they are commonly used in the calculation of damages. Objection was not taken to the use of tables at the trial, so far as I am aware. There is nothing in that point.
59 In my view, it has not been shown that the learned trial Judge erred with respect to the calculation of the damages concerned with the future medical expenses. This last ground of appeal has not been made good.
60 I would therefore dismiss the appeal.
61 With respect to the cross-appeal, counsel for the respondent argued the cross-appeal at the same time as he answered the grounds of appeal.
62 Concerning future loss of earning capacity, the respondent's counsel contended that there had been no overtime allowed and that the respondent had only been allowed damages for two years although there were 9 years which remained until he would reach 65 years of age. It was submitted that the allowance for the two years was not enough due to the fact that prior to his injury, and since 1975 when he had commenced employment with the appellant, the respondent had worked continuously doing heavy work; further, that the evidence clearly established that the respondent is not going to be able to work again.
63 Reliance was placed on the medical evidence which had referred to the injury unmasking a pre-existing problem. All the medical specialists had referred to the accident at work combining with a pre-existing problem to cause the incapacity.
64 The learned Judge preferred the assessments of Mr Batalin and the occupational specialists to what he described as "the more optimistic expressions given by Professor Harper and Mr Narula." Counsel for the respondent, however, stated that the respondent relied on Mr Slinger's
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- evidence that the respondent may well have continued asymptomatic in the absence of the accident. When asked how the respondent could overcome the learned Judge's findings counsel argued that the learned Judge should not have accepted Mr Batalin and Mr Hollingworth's evidence. However, there was no reason given for that proposition.
65 In my opinion, and on the authority of Edwards v Noble (supra), the respondent's contentions in that regard cannot be sustained.
66 Counsel for the respondent also submitted that the learned trial Judge should have calculated the loss for the whole of the respondent's future working life and then allowed a deduction for contingencies, rather than simply saying that he would allow for two years future loss of earning capacity.
67 There is no decided case of which I am aware which supports the proposition that the learned Judge could not allow damages for a further two years of working life on the respondent's part, or that the damages should have been calculated by calculating a sum and then deducting something for contingencies.
68 This ground is not established.
69 The next ground of the cross-appeal was that the award to allow for future medical expenses was insufficient. Particulars were given in the ground of the respondent's likely future needs.
70 In my view, the evidence was not clear as to the precise future medical treatment which the respondent needed arising solely from the accident. Secondly, it was not shown on appeal where the learned trial Judge had erred in his assessment.
71 His Honour based his assessment on the proposition that "only a general assessment can be made." This was because it was "not possible to estimate with any precision the extent of the future medical and pharmaceutical needs of the respondent" arising from his injury.
72 In my opinion the respondent's cross-appeal has not been made good. It should be dismissed because it has not been shown that the learned trial Judge erred in any respect.
73 The result is, in my view, both the appeal and cross-appeal should be dismissed.
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74 STEYTLER J: The respondent suffered a soft tissue injury to his back while attempting to lift a drain cover at his place of work on 9 July 1997. The appellant, his employer, was found to be liable to him in negligence in respect of his injury. The trial Judge assessed the respondent's entitlement to damages at an amount of $305,004. There is no appeal against the finding of liability but the appellant has appealed against his Honour's assessment of damages. It contends that no award of damages should have been made, alternatively that an award much smaller than that made by the trial Judge should have been made. The respondent has cross-appealed. He contends that the awards in respect of his future economic loss and future medical costs are too low.
75 The respondent was 56 years old at the time of trial, having been born on 9 July 1944. He emigrated to Australia from Burma in 1975. Shortly after his arrival in Australia he took up employment with the appellant, for whom he worked until the time of his injury. He worked, at that time, as a machine operator although he was, from time to time, required to clean drains.
76 The respondent's back was, as I have said, injured while he was attempting to lift a drain cover. The cover was tight and, when he tried to lift it with the aid of a piece of pipe, he felt a "click" in his back and experienced a piercing pain to the right side of his back. He consulted a doctor that evening before seeing his general practitioner, Dr Gin Seng Ang, on the following morning.
77 The respondent had, prior to this incident, an unusual underlying back condition. He had, as a child, suffered from tuberculosis and this had caused a natural fusion of the lower part of his thoracic spine, and the development of a kyphosis, with subsequent degeneration in other areas of the spine, including the neck and lumbar spine, and a degree of canal stenosis. He had, in 1984, also suffered a back injury at work which caused him to spend some weeks away from his employment. In the seven years prior to the accident on 9 July 1997 he had complained to Dr Ang about neck and back pain on a number of occasions. He had also suffered from hypertension, late onset diabetes, giddiness, pain from a degenerative condition in his right knee and, on one occasion, chest pain.
78 There was some controversy between the medical practitioners who gave evidence at the trial as regards the extent to which the accident on 9 July 1997 had caused or contributed to back problems experienced by the respondent after that date. The appellant led evidence from
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- Mr Nickolay Batalin, an orthopaedic surgeon, and two occupational physicians, Professor Peter Hollingworth and Dr Peter Connaughton.
79 Mr Batalin saw the respondent at the request of Dr Michael Tan who, shortly after the accident, had become the respondent's general practitioner. Mr Batalin said that the respondent had originally complained of "mid and upper" back pain, with restriction of movement, but that there had been a substantial increase in movement when indirect examination was carried out. He also said that, given the respondent's underlying back condition, he would have expected him to have had far more symptoms earlier than claimed and was "very surprised" that this was said not to have been the case. He expressed the opinion that it was inevitable that the respondent's pre-existing pathology would become symptomatic, leading to very similar symptoms to those in fact experienced by the respondent, irrespective of the accident which occurred on 9 July 1997. He said that the respondent had never been fit for work as a labourer. He also said that, "being generous", the accident may have resulted in a "minor strain" or "aggravation" of the respondent's pre-existing condition. He said that, although the back strain had had ample time to stabilise and improve, the respondent's symptoms had worsened, showing that work related factors were not the principal cause of the underlying pathology. That this was so, he said, was supported by the fact that the respondent's complaint was one of low back pain, rather than middle back pain.
80 Professor Hollingworth, while not of the opinion that the respondent had been exaggerating his symptoms, considered that the likely cause of the increase in his pain was the degeneration in his spine rather than a soft tissue injury. He said that, even if the accident had not occurred, it was unlikely that the respondent would still be at work. He also said that the respondent's other medical problems would be reason enough for him not to work to age 65. He considered that less than 10 per cent of the respondent's post-accident symptoms could be attributed to his injury.
81 Dr Connaughton, while considering that the respondent's "abnormal illness, behaviour and inconsistencies" made a diagnosis difficult, said that the respondent would probably be experiencing symptoms from his pre-existing spinal problem even if the accident had not occurred on 9 July 1997. He considered that the "extensive inconsistencies and functional overlay on clinical examination ... [indicated] that factors other than the medical condition in his low back ... [were] having a major influence on his current presentation and level of disability". Dr Connaughton also considered that the respondent would not, in any
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- event, have been able to work until age 65, given his medical history. He thought it probable that the respondent would have had a disabling episode within two years of the accident in any event.
82 The appellant also led evidence from Dr Ang and Dr Tan. However, the trial Judge appears not to have regarded that evidence as being of much significance and said no more than that it had been given.
83 The respondent led evidence from two neurosurgeons, Mr Michael Lee and Mr Soni Narula, two pain specialists, Dr Paul Graziotti and Dr John Salmon, a neurologist, Dr Ross Goodheart, an occupational physician, Professor Andrew Harper, a thoracic specialist, Dr Maharaj Tandon, and a spinal surgeon, Mr Barrie Slinger.
84 Mr Lee considered that the respondent's longstanding, but previously asymptomatic, spinal pathology had been "mechanically strained" as a result of the accident. He considered it uncertain whether the respondent's back had the capacity to recover from "such a physical insult". He arranged for the performance of a MRI scan on the respondent's back. He reported, in the light of this scan, that the respondent's pain could well be related to a myofacial tear or the like in the region in which the respondent was experiencing pain. He said that the respondent's present condition was related to the incident which had taken place on 9 July 1997. He also expressed the opinion that, while the respondent's back was vulnerable to an injury of this kind, he found it "very difficult to understand how such an incident can be ignored in terms of explaining his present predicament".
85 In a report provided in March 1998, Mr Lee expressed the opinion that the respondent was not going to work again. He said that the respondent's injury had "de-compensated a long standing degenerative spine".
86 Dr Graziotti expressed the opinion that the area of the respondent's back below the fused thoracic area had been made symptomatic by the accident.
87 Dr Salmon saw the respondent on several occasions between January 1998 and February 2000 and treated him in respect of pain in a number of areas, including his back, right hip and thigh and neck. The respondent also reported to him variable numbness in the left forearm and two fingers of the left hand. He administered a psychometric test to the respondent which showed depression in the moderate to severe range. He considered it to be a "moot point" whether the respondent would have
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- made it to retirement without developing significant back pain, had he not been injured in July 1997.
88 Dr Goodheart considered that the respondent suffered from "significant spinal cord irritation", both at the cervical level and at the thoraco-lumbar junction level but, on being informed that the respondent had complained of neck symptoms some years prior to the accident, he said that this made it less likely that there had been a "significant neurological disturbance".
89 Mr Narula, having been told by the respondent that he had had only one prior episode of back pain, expressed the opinion that the respondent had sustained an injury which left him with a "functional disability" and that his current disability was "directly attributable to the accident at work on 9 July 1997". However, on being told that there were other pre-accident complaints of back pain by the respondent, he said that the respondent had a predisposition to developing a problem with respect to either wear and tear or injury and that he was probably getting early symptoms of that predisposition. He considered that there was a possibility that the respondent would have had problems in working to retirement age even absent the accident.
90 Professor Harper attributed the respondent's functional disability to "the combined effect of his pre-existing spinal pathology and the lifting incident". He said that, as the respondent had worked to the date of his accident, his incapacity to work should be attributed to that accident. A history of the complaints of back pain which had been made to Dr Ang did not cause him to change that view. He said that it was "at least possible, and it may have been probable", that the respondent would have worked to retirement age free of disability, although he recognised that the respondent would definitely have been at risk of not working until age 65.
91 Dr Tandon, too, considered that the accident was responsible for the respondent's present symptoms and said that, were it not for the accident, the respondent would have continued working until normal retirement age although, he added, he was not purporting to provide "an orthopaedic view" as to this issue.
92 Mr Slinger, too, considered that the respondent's symptoms were caused by his soft tissue injury sustained on 9 July 1997, having regard for the fact that the respondent's degenerative changes to his lumbar spine had been asymptomatic prior to that incident.
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93 Faced with all of this evidence, the trial Judge, although he said that he was unable, generally, to rely on the respondent's evidence, accepted that he suffered a back injury such as to prevent him from working. He found, in this respect, that the respondent had provided erroneous or misleading information about his pre-accident medical condition to various of the doctors and that he had been less than frank in a number of respects. However, he said, there was, at the end of the day, common ground between Mr Batalin and Mr Lee that the respondent had sustained a soft tissue injury of some kind. His Honour also said that he preferred the evidence of Mr Lee to the effect that the respondent's injury had decompensated a degenerative spine, having regard for Mr Lee's expertise and the fact that his evidence appeared to accord with the fact that the respondent had, as a result of his accident, been inactive and lost muscle tone.
94 As to the question of how long the respondent might have worked had the accident not occurred, the trial Judge preferred (albeit he said that he was, in this respect, "speaking generally") what he described as the "pessimistic assessment" of Mr Batalin and the two occupational specialists called by the appellant to the more "optimistic expressions of view" given by Professor Harper and Mr Narula. He relied, in this respect, upon the fact that Mr Batalin first saw the respondent in order to treat him just after the accident and had seen him on a number of occasions since for purposes other than "medico-legal review". He also took into account the fact that it had been common ground that the respondent's pre-accident degeneration was severe.
95 His Honour went on to say that:
"Doing the best that I can, and having regard to the evidence as to the ... [respondent's] pre-accident medical condition and skills, the ... [appellant's] operations, the medical evidence and my findings above I would assess loss of economic capacity on the basis of an allowance for lost wages and any overtime to date and then for a further two years, without any additional deduction for contingencies for the possibility the ... [respondent] would have taken a redundancy, or otherwise."
96 His Honour's reference to the issue of redundancy related to evidence which had been given by the appellant's Human Resources and Environment, Health and Safety Manager, Mr Christopher Barugh, and its Production Manager, Mr Daniel Rodoreda. Mr Barugh said that there had been a series of retrenchments at the appellant's Welshpool site, following
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- upon a downturn in production. These retrenchments, which were made on a voluntary basis, took place in stages from early 1998. Mr Barugh said that selection criteria had been applied which took into account the ability of a worker to use new machines and the worker's adaptability, literacy skills, computer knowledge and keyboard ability. He said that the respondent lacked these skills and consequently "had a very limited future" with the appellant, making it "very likely" that, but for the accident, the respondent "would have been offered a retrenchment and strongly encouraged to accept it".
97 Mr Rodoreda, too, said that, were it not for the respondent's accident, he would have been offered a redundancy. He said that while redundancies had, to date, been voluntary, that might not be the case in the future.
98 At the hearing of the appeal the appellant was given leave to adduce further evidence, by way of affidavit, from Mr Barugh. In his affidavit, which was sworn on 3 May 2001, Mr Barugh said that the appellant has decided to close its Welshpool factory, being that at which the respondent had worked. This decision was to take effect from August or September 2001 and the majority of the appellant's "operation's staff" at that factory would then have their employment terminated and be given redundancy packages. Mr Barugh said that he could not envisage that the respondent, had he still been employed by the appellant, would have been considered for employment relocation. This, he said, was because the respondent had no computer skills, no technical expertise and an insufficient level of English language proficiency.
99 The respondent advanced a claim for voluntary assistance. He said, in this respect, that he had lost the ability to drive a car, lift things, cook, shop, vacuum and iron clothes. He said that he was totally dependent on his wife for these things and that she assisted him to get up, breakfast, shower, dress, take medication and apply a hot pack. The parties were in agreement that if any allowance was to be made in this respect, it should be assessed upon the basis of an hourly rate of $14.65.
100 So far as household work is concerned, the trial Judge rejected the evidence of the respondent and of his wife and said that he could not find that the respondent had proved "that it [the housework] would not have been done anyway". He consequently made no allowance in respect of the respondent's lost ability to do that work. However, his Honour made an allowance in relation to assistance given to the respondent in respect of what he referred to as "personal function". He said:
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- "In that respect, and given my inability to rely on what the ... [respondent] and Mrs Lee have said to me any assessment is necessarily a conservative one, based simply on the fact that the ... [respondent] has had a back injury which has been productive of a reasonable level of symptoms, and in those circumstances some assistance would ordinarily be required.
I would allow assistance of one hour per day."
101 So far as past gratuitous assistance was concerned, a period of two years and one week having elapsed since the date of the accident, his Honour allowed a total amount of $10,768 plus interest of $153. So far as future gratuitous assistance was concerned his Honour allowed a total sum of $67,786 calculated by reference to a need for assistance of one hour per day. He said, in that respect:
"I do not make any deduction for contingencies, and in respect of the likelihood that the ... [respondent] would have experienced some back symptoms in any event, I do not find that the ... [appellant] has discharged its onus in that respect in relation to any need for gratuitous services, given that there is no evidence to that effect, and given that the allowance for services made is, as stated, confined to that for personal assistance.
Again, and in any event, not all contingencies are, from the ... [respondent's] viewpoint, adverse, and the assessment is, as also stated, a conservative one."
102 His Honour also awarded sums of $35,000 and $27,051 respectively in respect of non-pecuniary loss and special damages, these items having been uncontroversial. There appears also to have been no great controversy in respect of past loss of income and superannuation in respect of which his Honour awarded a total sum of $101,406.
103 So far as future medical expenses are concerned his Honour allowed to the respondent an amount of $750 per annum which, given a life expectancy of approximately 23 years, amounted to $9,540. His Honour declined to make any reduction for contingencies saying that those were "of each kind".
104 He compensated the respondent for a loss of future economic capacity for a period of two years. This, by common ground, was based
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- upon a net weekly wage of $500.56 and gave rise to a total award, including superannuation, of $52,800.
Grounds of appeal and cross-appeal
105 That brings me to the grounds of appeal and cross-appeal.
106 The first ground of appeal was to the effect that the trial Judge erred in awarding any sum at all to the respondent for damages given his findings in respect of the respondent's lack of credibility.
107 The appellant contends, by ground 2, that the trial Judge should not have awarded to the respondent any amount in respect of future gratuitous assistance in circumstances in which he had rejected the evidence of the respondent and his wife in that respect and in which there was no other evidence upon which such an assessment could be made.
108 Ground 3 is an alternative ground pursuant to which the appellant contends that any award for future gratuitous services should have been significantly discounted for contingencies, given the respondent's poor state of health in respect of non-accident related conditions.
109 Grounds 4 and 5 of the grounds of appeal attack the trial Judge's award in respect of future loss of earning capacity. The appellant contends, in this respect, that the respondent was likely to have been made redundant by the date of trial or within weeks thereof at the very latest. The appellant also contends, by ground 5, that, having preferred the evidence of Mr Batalin, Dr Connaughton and Dr Hollingworth to the evidence of the respondent's medical experts as to the respondent's future working capacity, no award in respect of future economic loss should have been made, alternatively any such award should have been significantly discounted for contingencies.
110 Finally, so far as the appeal is concerned, the appellant contends, by ground 6, that the trial Judge erred in awarding $9,540 for future medical expenses without identifying what those expenses were, given that much of the medical treatment required by the respondent was for non-accident related conditions.
111 So far as the cross-appeal is concerned, the respondent contends, by ground 1, that the trial Judge erred in his assessment of future economic loss in limiting that loss to a two year period.
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112 Ground 2 contends that his Honour gave undue weight to the evidence of Mr Batalin and Mr Hollingworth in this respect.
113 The respondent contends, by ground 3, that the trial Judge erred in his assessment of the damages awarded in respect of future medical expenses. He submits that this was well below what was required in the circumstances of the case.
Appeal ground 1
114 I will deal, first, with ground 1 of the grounds of appeal. This ground was not pursued with any vigour in the course of oral argument. In my opinion it has no substance. While it is true that the trial Judge said that he was unable to rely upon the respondent's evidence, there was more than sufficient in the evidence to enable him to make the finding that he did to the effect that the respondent suffered a back injury at work which was such as to prevent him from working. The medical evidence which was accepted by his Honour, particularly that of Mr Lee, lent support to the respondent's contentions in that regard and his Honour accepted evidence given by Mr William D'Souza, a work mate of the respondent, who had been present when the respondent injured himself. While Mr D'Souza's version of the incident in question was somewhat different to that of the respondent, it nonetheless supported the respondent's contention that he had injured his back in the course of attempting to lift the drain.
Appeal grounds 4 and 5 and cross-appeal grounds 1 and 2
115 It is convenient, next, to deal with grounds 4 and 5 of the grounds of appeal and grounds 1 and 2 of the cross-appeal.
116 It will be apparent from what I have said above that the trial Judge found that the respondent would, were it not for the accident, have worked up until the date of the trial in mid-2000 and then for a further period of two years from the date of his Honour's judgment. It also appears that, in arriving at this finding, he was influenced by the evidence of Mr Batalin, Professor Hollingworth and Dr Connaughton. I have mentioned, above, that Mr Batalin expressed the opinion that it was inevitable that the respondent's pre-existing pathology would lead to symptoms very similar to those in fact experienced by the respondent, irrespective of the accident. I have also mentioned that he said that the respondent had, in fact, never been fit for work as a labourer and that the accident may have resulted only in a "minor strain" of the respondent's pre-existing
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- condition. I have mentioned also that Professor Hollingworth thought it unlikely, even if the accident had not occurred, that the respondent would still have been at work and that Dr Connaughton thought it probable that the respondent would have had a disabling episode within two years of the accident in any event. If the trial Judge had relied exclusively upon this evidence, then, it seems, he would not have compensated the respondent for as long a period as he did in terms of loss of future income. It consequently seems to be the case that, albeit the trial Judge said that, "speaking generally", he preferred these "pessimistic" assessments to the more "optimistic" assessments of Professor Harper (who thought it at least possible, and even probable, that the respondent would have worked to retirement age) and Mr Narula (who accepted only the possibility that the respondent would have had problems in working to retirement age, absent the accident), he did allow for the fact that they might be a little too "pessimistic".
117 I am, in all of the circumstances, not persuaded that it was not open to his Honour to make the finding at which he arrived in this respect.
118 It also seems to me that while it may have been the case that the respondent was likely to have been made redundant by September 2001 at the latest, his Honour was entitled, in arriving at the conclusion at which he did, to assume that the respondent would, nevertheless, have been able to secure employment for the two year period following upon the trial. He had worked for the appellant for over 20 years and, even given that he suffered from some of the disadvantages to which reference has been made, there is insufficient in the evidence to suggest that he would not have been able to obtain alternative employment. While it is true that, as counsel for the respondent pointed out, the trial judge made no allowance for overtime, there was no certainty that the respondent would have obtained such and, in any event, his Honour's assessment did not purport to be anything more than a general assessment, doing the best he could.
119 It follows, in my opinion, that grounds 4 and 5 of the appeal have not been made out. It also follows that grounds 1 and 2 of the cross-appeal have not been made out.
Appeal grounds 2 and 3
120 I propose, next, to deal with grounds 2 and 3 of the grounds of appeal.
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121 As to ground 2, the trial Judge rejected the evidence of the respondent and his wife as regards the provision of gratuitous services, on my reading of his reasons, only insofar as they suggested that the items of household work to which I have referred would not have been performed by the respondent's wife in any event. It consequently remained open to his Honour to make an allowance, as he did, in relation to assistance which the respondent might require in respect of loss of "personal function", being a reference to the respondent's ability to function physically.
122 That said, it seems to me, with respect, to be logically inconsistent to make an allowance for the provision of gratuitous assistance for the respondent in respect of a loss of personal function for a period stretching beyond that which ended two years from the date of the judgment, having regard for his Honour's finding that, were it not for the accident, the respondent would, by then, have been in much the same situation as he was at the time of the trial.
123 In those circumstances, it seems to me, the award in respect of gratuitous services for loss of personal function should also have been only for a period of two years, giving rise to a total amount, at the agreed figure of $14.65 per hour, of $10,694.50. There is, in this respect, a considerable body of authority to support the proposition that, where there is a pre-existing condition which would ultimately have affected the plaintiff in any event, the defendant is liable only for the acceleration brought about by the wrongful act. (See Muoio v MacGillivray [1962] QR 554, affirmed [1964] QWN 21; Newell v Lucas [1964-5] NSWR 1597 at 1601-3; Zumeris v Testa [1972] VR 839 at 843-6; and Watts v Rake (1960) 108 CLR 158 at 160, 165 and see, generally, Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed (1990) par 2.2.5).
124 I would consequently allow the appeal under ground 3, but only to the extent of reducing the sum of $67,786 awarded by the trial Judge in this respect to an amount of $10,604.50.
Appeal ground 6 and cross-appeal ground 3
125 That brings me, finally, to ground 6 of the appeal and ground 3 of the cross-appeal.
126 It is true that the trial Judge did not say how his "general assessment" of $750 per annum in respect of medical expenses was made up.
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127 However, Mr Narula, in his report dated 21 May 1999, said that the respondent would need regular review by his general practitioner for analgesics, muscle relaxants, topical anti-inflammatories and other ointments for symptomatic relief. Professor Harper, in his report dated 13 July 1999, said that he expected the respondent to require ongoing medication for the foreseeable future. Dr Salmon, in his report dated 18 February 2000, said that the respondent continued on MS Contin and Endone tablets, in each case twice a day. The evidence established that the MS Contin tablets cost $46.95 per packet of 20 and the Endone tablets cost $49.95 per packet of 20. Evidence was also given of the prices of some other medications used by the respondent but it was not always plain for what purpose they were used.
128 However, on the strength of the medical evidence, it does seem as if the allowance of $750 per annum was very low. It would not even cover the cost of the MS Contin and Endone tablets taken by the respondent in respect of his back pain. Allowing for the fact that the respondent takes two of each per day, these would cost him about $3,537 per annum. Against that, it seems to me that there was no basis for awarding to the respondent an annual amount for the whole of his life expectancy of 23 years in circumstances in which, as I have said, the trial Judge found that, were it not for the incident on 9 July 1997, he would have been in very much the same position by no later than two years after the date of judgment. There is, on the evidence, also the prospect that some medication, at least, might have been required during the two year period to which I have referred in any event.
129 In all of those circumstances it seems to me that an award in respect of future medical expenses could only be justified for a period of two years and that some discount should be made to cater for the prospect that, even during that period, some medication might have been needed if the accident had not occurred. Having regard for the whole of the evidence in respect of the respondent's medical expenses, it seems to me that a more appropriate award would have been one of around $3,000 per annum, but limited to a period of two years. I would consequently set aside the award of $9,540 in this respect and substitute for it an award of $6,000.
Conclusion
130 It follows that I would allow the appeal and quash the awards of $67,786 and $9,540 in respect of future gratuitous assistance and future medical expenses respectively, substituting therefor awards of $10,694.50
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- and $6,000 respectively. I would hear further from the parties, if necessary, as to the consequence of so doing.
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