Johnson Diversey Australia Pty Ltd v Ferenczfy
[2013] SASCFC 59
•28 June 2013
Supreme Court of South Australia
(Full Court)
JOHNSON DIVERSEY AUSTRALIA PTY LTD v FERENCZFY
[2013] SASCFC 59
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
28 June 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - OTHER FINDINGS
Appeal by the defendant - where the plaintiff and respondent recovered damages in respect of the negligent conduct of the defendant and appellant following a trial in the District Court - the trial commenced on 3 May 2010, concluded on 10 December 2010 and judgment was delivered on 1 March 2012 - whether the trial Judge's finding that defendant was negligent should be set aside - whether the Judge's assessment of damages was erroneous - whether the case involved operative delay.
Held per Gray and Sulan JJ, White J agreeing: Appeal dismissed - the Judge’s findings of fact are supported by evidence, both on the questions of liability and of damages - there was no operative delay - the Judge followed the correct procedure and provided comprehensive and careful reasons - each of the separate awards made by the Judge was well within his discretion - the overall award of damages was open on the evidence and, in the circumstances, a reasonable award.
Held per White J: On the issue of breach of duty, the Judge adverted specifically to the dangers of hindsight reasoning, and correctly considered the response of a reasonable person looking forward - it is apparent that the Judge assessed the appellant’s breach by reference to a duty to exercise reasonable care - having made findings as to the extent of a plaintiff’s symptoms based on their assessment of the plaintiff’s credibility and other evidence, trial judges may give effect to that assessment, relying on the rationale given in Dibbins v Dibbins (1978) 80 LSJS 165.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Wyong Shire Council v Shirt (1980) 146 CLR 40; Vairy v Wyong Shire Council (2005) 223 CLR 422; Terry v Leventeris (2011) 109 SASR 358; New South Wales v Fahy (2007) 232 CLR 486; Ferenczfy v Johnson Diversey Australia Pty Ltd [2012] SADC 22; McVicar v S & J White Pty Ltd (2007) 97 SASR 160; Dibbins v Dibbins (1978) 80 LSJS 165; Benham v Comcare [1990] FCA 190, considered.
JOHNSON DIVERSEY AUSTRALIA PTY LTD v FERENCZFY
[2013] SASCFC 59Full Court: Gray, Sulan and White JJ
GRAY and SULAN JJ.
Following a trial in the District Court, the plaintiff and respondent, Christine Joan Ferenczfy recovered damages in respect of the negligent conduct of the defendant and appellant, Johnson Diversey Australia Pty Ltd.
On the appeal, the defendant complained of the trial Judge’s finding that it was negligent and sought to set aside the judgment on that ground. In the alternative, it was contended that the Judge’s assessment of damages was erroneous.
The incident giving rise to the claim occurred on 26 July 2002. At that time, the plaintiff was working as an employee of Woolworths Limited, or a related company, in the delicatessen section of its Tea Tree Plaza store in South Australia. The plaintiff suffered burns to both ankles when a hose detached from a fitting and she was sprayed with hot water.
The delicatessen section consisted of a counter from which customers were served. The serving staff worked in a galley type walkway behind the counter. A brass pipe attached to the wall of the walkway ran parallel to the ground and at a height of about 25 centimetres above the ground. Hot and cold water, or a mixture of the two, ran through this pipe. One end of the brass pipe faced into the walkway area. A hose was attached at this end of the brass pipe to allow water to be used in cleaning operations in and around the delicatessen.
Immediately prior to the incident, the plaintiff, in accordance with her duties, had been checking the display cabinet and topping up supplies. She pushed her trolley through the walkway from the public serving area into the kitchen and cool room area. As she walked past the brass pipe and hose assembly, she felt a severe pain and heat in her feet. She looked down and saw that she was being scalded by a stream of water coming from the open end of the brass pipe.
There was no dispute at trial as to the immediate cause of the injuries. The connection between the brass pipe and the hose gave way. The hose separated from the brass pipe. The pressure of the water was such that the connection between the two failed and the hose blew off. Scalding water under considerable pressure was discharged into the walkway of the delicatessen area.
The defendant, pursuant to its contractual arrangement with Woolworths, supplied all the brass componentry as well as the hose involved in the incident. The contractual arrangement included a service maintenance contract. It was accepted at trial that the defendant owed a duty of care to the plaintiff. There was a relationship of neighbourhood between the plaintiff and the defendant. At issue was whether that duty of care had been breached.
The Judge addressed the scope of the duty of care and concluded that the defendant owed a duty to exercise reasonable care to ensure that the equipment it supplied and maintained was safe for all reasonably foreseeable uses. The Judge further concluded that the duty was owed to all persons whom the defendant ought to have reasonably foreseen might be harmed as a result of a breach of that duty. Those persons included all employees at the Woolworths Tea Tree Plaza store who might, in the course of their duties, find themselves in close proximity to the equipment supplied. The Judge found that as the defendant assumed an obligation to perform monthly inspections and maintenance of the equipment, liability for harm caused by ordinary wear and tear did not arise for consideration. Finally, the Judge concluded that, given the nature of the equipment supplied and the assumed obligation to check and maintain the equipment on a regular basis, the defendant owed a duty to the plaintiff to exercise reasonable care in the maintenance of the integrity of the connection between the brass tube and the hose.
The Judge considered that the question of whether or not the defendant exercised reasonable care in the proven circumstances was to be addressed having regard to the observations of the High Court in Wyong Shire Council v Shirt[1] and Vairy v Wyong Shire Council.[2]
[1] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
[2] Vairy v Wyong Shire Council (2005) 223 CLR 422, [126].
It was the plaintiff’s case that the clamping system through which the hose was clamped to the brass tube was inadequate. Alternatively, it was said that the clamp that was used, which was described as a Norma clamp, was not properly tightened. It was further contended that there had been inadequate inspections, in particular a failure to maintain an adequate degree of tightness of the connection through the clamp.
It was the defence case that the Norma clamp was the appropriate clamp to be used and that the alternative factory fitted end would not have performed adequately. It was contended that the maintenance inspection routine was adequate and that the testing of the connection by an application of force method was appropriate. It was further argued that the Norma clamp was appropriately tightened at all times.
The Judge concluded that the hose failed when it was at the end of its working life. There was evidence of deterioration in the fabric of the hose as a result of working conditions over a substantial period. The Judge considered that the regular use to which the hose had been put caused a condition of viscoelastic creep. This condition over time loosened the connection, causing the connection to fail. Deterioration had led to deformations to the bore of the hose. This reduced the capacity of the hose to grip the barbed nipple of the brass tube.
The Judge accepted expert opinion evidence that the deterioration of the connection over time was a material cause of the incident. In reaching this conclusion, the Judge considered other alternative hypotheses and excluded each. Against the above background, the Judge then reached the conclusion that the defendant was negligent.
It is convenient to extract the following brief conclusions from the Judge’s comprehensive reasons:
I am satisfied that ordinarily the method of attaching such a hose with a single worm drive clamp would be adequate for the job provided the connection was regularly inspected and maintained. However, the Tea Tree Plaza delicatessen was not just any installation. In my view, it presented the particular and obvious dangers earlier identified. The use of a worm drive clamp brought with it the risk that, over time, inadequate maintenance might occur so as to reduce its effectiveness. Had the tap directed the water vertically to the floor a failure might generate significant inconvenience but not cause particular danger to employees. However, in my view, the Tea Tree Plaza installation required extra precautions to be taken. I recognise that the factory fitted end may bring with it additional difficulties in being maintained on site but the need for any on site maintenance was significantly reduced when compared with the alternatives. Bearing in mind the Wyong Shire Council v Shirt so called “calculus” or judgment to be performed, I am not persuaded by the evidence before the court that the use of a factory fitted end would have brought with it undue expense or inconvenience when considered against the likelihood of the risk of an alternative connection failing and the magnitude of the consequences should there be a failure, in the context of the Tea Tree Plaza installation.
In the alternative, it was not a reasonable response to the particular risks that this installation posed, for an employee of the defendant to turn up once a month and give the hose a pull or a tug. In such a dangerous environment as was the Tea Tree Plaza delicatessen the defendant’s representative, as a matter of routine, during each monthly visit, should have tightened the clamp with an appropriate tool to the best of his physical ability and ideally to the manufacturer’s recommended torque using a torque wrench if necessary. However, given the test results achieved for the Norma clamp at torques considerably lower than the manufacturer’s recommended torque it is not possible to find that regular tightening to the manufacturer’s recommendation (3.0Nm) was necessary in order to avoid the accident. Routine tightening to the best of the operator’s unaided physical ability is likely to have been sufficient.
In addition, a reasonable person in the defendant’s position when considering the particular risks posed at the Tea Tree Plaza delicatessen should have regularly (not necessarily every month) taken apart the connection in order to better check the state of the hose end and, if any permanent deformation were to be observed, cut and refit the hose in the manner described by Dr Powell and Mr Marrocco. Had this occurred within a few months prior to or at the 3 July 2002 visit that part of the hose which was at the end of its (effective) life would have been removed and a re-tightened clamp permitted to do its work.
…
The defendant was negligent in either not supplying a factory fitted end in this location or in not properly inspecting and maintaining the worm drive clamp and hose connection that it did supply. I am satisfied that but for this negligent failure the accident on 23 July 2002 would not have occurred.
The Appeal – the Approach of the Court
The powers and functions of a Court of Appeal were discussed by the High Court in Fox v Percy.[3] Gleeson CJ and Gummow and Kirby JJ reviewed the earlier High Court decisions of Warren v Coombes,[4] Jones v Hyde,[5] Abalos v Australian Postal Commission[6] and Devries v Australian National Railways Commission,[7] and observed:[8]
[3] Fox v Percy (2003) 214 CLR 118.
[4] Warren v Coombes (1979) 142 CLR 531.
[5] Jones v Hyde (1989) 63 ALJR 349.
[6] Abalos v Australian Postal Commission (1990) 171 CLR 167.
[7] Devries v Australian National Railways Commission (1993) 177 CLR 472.
[8] Fox v Percy (2003) 214 CLR 118, [25]-[28].
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[Footnotes omitted.]
We have approached this appeal in accordance with these principles.
The reasons of the Judge are both extensive and thorough. It would appear that the Judge was mindful of the need to be explicit having regard to the delay between the conclusion of the trial and the publication of his reasons. We are satisfied that the Judge’s findings of fact are supported by evidence, both on the questions of liability and of damages.
The Appeal – Liability
As earlier observed, the defendant complained of the finding that it had breached the duty of care owed to the plaintiff. Several complaints were advanced.
First, it was said that the Judge placed undue emphasis on the horizontal position of the hose fitting. It is plain, however, that whether the fitting is horizontal or vertical is not to the point. When the connection failed it did so in a manner that allowed scalding water to spray onto an employee. We do not consider that there was any material error on the part of the Judge in his reasoning.
It was then submitted that the Judge overlooked the evidence that the factory fitted end had been trialled and found wanting. Attention was drawn to the evidence of a witness, Robert Smart, that factory fitted ends had previously failed. The Judge had particular regard to the evidence concerning the factory fitted end and concluded that, notwithstanding that there had been failures, those failures were rare and that, in particular, the factory fitted ends had superior safety qualities to a Norma clamp. In our view, these findings were open to the Judge on the evidence.
A further complaint related to the Judge’s finding concerning the deficiency in the routine inspection procedures. The evidence concerning the inspections was to the effect that the maintenance officer would apply a tug and pull test to the connection. On any view, this was rudimentary. Such a method of testing involved no qualitative assessment, was entirely subjective and was dependent upon the vagaries of the tester and the occasion. The Judge was well justified in concluding that such a testing procedure was wholly inadequate. To our minds, there is no substance to this complaint.
In our view, each of the findings of the Judge was open on the evidence. The hose was at the end of its life. The degradation of the hose was evident on visual inspection. This problem should have been addressed. The defendant breached its duty of care. We consider that the evidence amply supported each finding. The conclusions of the Judge were correct.
Common sense supports the conclusion reached by the Judge. It is a common day experience for connections between pipe and hose to disconnect. It happens frequently in every garden in Australia. It is self-evident that pressure can cause a connection to fail. The circumstances giving rise to the present incident, however, are different to that involving the everyday garden hose. As evidenced in this case, the failed connection caused scalding water to cause serious harm.
Operative Delay
The trial commenced on 3 May 2010 and concluded on 10 December 2010. Judgment was delivered on 1 March 2012. On the appeal, the defendant contended that the case involved operative delay. It was pointed out that the delay between the plaintiff giving evidence in May 2010 and delivery of judgment was almost two years. It was submitted that in this circumstance no assumption could be made that the Judge enjoyed the advantages associated with hearing and seeing witnesses give their evidence. In accordance with authority, it was said that a Judge in these circumstances should give more than usual detail in order to demonstrate that evidence had not been overlooked or forgotten. This is necessary to overcome what is said to be a natural desire to make the decision which is the easiest to express. It was accepted that operative delay was not itself a ground of appeal but was relevant to the approach to be taken to the review of the findings of the trial Judge.
The question of operative delay was addressed by this Court in Terry v Leventeris, where it was observed:[9]
[9] Terry v Leventeris (2011) 109 SASR 358, [15].
In support of the contention that delay should be taken into account when reviewing the Judge’s findings, the defendant relied upon the observations of the Western Australia Full Court in the decision of Mount Lawley Pty Ltd v Western Australian Planning Commission[10] and upon the observations of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd.[11] Consideration of those two authorities and the cases considered within, allows for the following summary of principles to be identified in relation to situations where there has been substantial delay in delivering judgment:
· Delay in delivery of judgment does not, on its own, constitute a ground of appeal.[12] However, in certain circumstances, the delay can give rise to a miscarriage of justice or other errors, which constitute a ground of appeal.[13]
· In circumstances where there has been substantial delay in delivering judgment:
· the delay weakens the advantage, as discussed above in Fox v Percy, that a trial judge has over an appellate court;[14]
· appellate courts are to take the delay into account when reviewing the trial judge’s factual findings[15] and when considering the adequacy of the judge’s reasons;[16]
· the trial judge’s reasons should indicate that he or she has fully considered all of the evidence.[17] It is incumbent upon the trial judge to indicate why he or she rejected the evidence of a particular witness and to indicate why he or she preferred one witness’s evidence over another witness’s evidence;[18]
· assertive statements made by a trial judge which would normally be assumed to have been made after the trial judge comprehensively considered the evidence, need to be supported by a more complete statement of the relevant evidence;[19]
· the assumption that a trial judge has considered all of the evidence, albeit not referring to all of the evidence in the judgment, can no longer be made;[20] and
· it is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision and in the winning party in that they may feel they have had to wait too long for justice.[21]
[10] Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]-[34].
[11] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[79].
[12] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69].
[13] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]; R v Maxwell (Unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998); Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; Cobham v Frett [2001] 1 WLR 1775, 1783-1784.
[14] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[70], [78]; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [113].
[15] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69].
[16] Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; see above, Cobham v Frett [2001] 1 WLR 1775, 1783.
[17] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [73].
[18] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [72]; Hadid v Redpath [2001] NSWCA 416, [34], [53].
[19] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [71]; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30].
[20] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [72].
[21] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [112].
In the present proceeding the Judge followed the correct procedure. The Judge’s reasons were comprehensive. A review of the reasons discloses close attention to the evidence of each witness and careful reasons given for the Judge’s findings.
Appeal – Damages
The plaintiff suffered scalding burns to her right foot and ankle and more severe scalding burns to her left foot and ankle. The initial pain was such that morphine injections were necessary. On the plaintiff’s arrival for emergency treatment, skin hanging off the wounds had to be removed and the wounds dressed. Daily dressing of the wounds at hospital continued for some time. The wounds healed. The plaintiff was left, however, with persistent swelling and pain, which developed within half an hour of standing or walking.
Some six months after the incident, the plaintiff developed severe depression causing the need for a referral to a consultant psychiatrist and the prescription of anti-depressant medication. There was a difference of opinion between the plaintiff’s treating psychiatrist and a psychiatrist engaged to provide a medico-legal report. The treating psychiatrist considered that the plaintiff’s depressive state was affecting her earning capacity. The reviewing psychiatrist considered that there was no psychiatric impediment to a return to work. The plaintiff ceased work in February 2003 at the time of the onset of her severe depression. Although by the end of 2004 the plaintiff’s depression was under control, she had not returned to work.
On the appeal, complaints were advanced concerning the Judge’s finding that the pain and swelling in the plaintiff’s legs were causally related to the burns and in particular, the ongoing pain was also related to the burns. The Judge made extensive careful findings following a detailed review of the evidence. Those findings may be summarised as follows.
The Judge was satisfied that the plaintiff suffered from ongoing pain and swelling in the left ankle. However, his Honour was not satisfied that it was as debilitating as or incapacitating as the plaintiff had asserted. Attention was drawn to the support from the medical and other evidence in respect of the ongoing complaints of pain and swelling.
The Judge found that the plaintiff’s injuries rendered her wholly incapable of working in paid employment for a period from 26 July 2002 to some time in September 2002. Thereafter, the plaintiff had a capacity to undertake relatively low grade unskilled work for at least four hours per day while seated, with the proviso that she was able to elevate her legs from time to time.
The Judge considered that the accident on 26 July 2002 caused the residual ankle problems as well as the psychiatric condition. As a consequence, during 2003 and 2004, the plaintiff suffered from severe depression with an adjustment disorder. This psychiatric condition, together with ongoing residual pain in the left ankle, rendered the plaintiff wholly incapable of performing paid work throughout that period. By the end of 2004, the plaintiff’s adjustment disorder and depression were under control and since that time there had been no psychiatric impediment to the plaintiff exercising her earlier referred to physical capacity.
Since September 2002, the plaintiff was found to have residual physical problems, being swelling and scarring predominantly in the left ankle and foot, pain and discomfort in the left ankle area upon standing and walking, and excessive weight gain, in part, as a result of her inability to exercise.
The Judge took the view that the plaintiff’s capacity was restricted to unskilled work of a sedentary nature and for at least four hours per day. These disabilities, in the Judge’s view, led the plaintiff to be permanently incapacitated from undertaking the delicatessen type work that she had performed prior to the accident. The Judge, in respect of the plaintiff’s earning capacity concluded:[22]
…
As at the end of 2004 and as a result of: the patient’s age (52 or so); the restricted type of work in which she was experienced; her inexperience with sedentary office type work; the fact that she had been out of the paid workforce effectively for more than two years; and the fact that by then she had become significantly overweight, was suffering stress and lack of motivation because of the circumstances she had found herself after the accident; the opportunities for the plaintiff to exercise the limited physical capacity to work that she retained were likely to be very limited. This would be exacerbated as time went by with her increasing age and time out of the paid workforce.
In all of the circumstances, as they confronted the plaintiff in early 2005, the plaintiff’s conduct in negotiating a settlement of her WorkCover entitlements with Woolworths and resigning her employment with Woolworths as at 15 March 2005 was not so unreasonable as to constitute a failure by the plaintiff to mitigate her damage.
The plaintiff’s attitude to her residual physical difficulties and the extent to which these difficulties have rendered her incapable of performing her pre-accident ordinary daily activities and of exercising the residual working capacity that she retains, have also been informed, to some degree, by stress, caused by this ongoing litigation in the manner described by Dr Asokan in her latest report. Once this litigation were to come to an end the plaintiff’s capacity to cope with her residual disabilities and to exercise her former capacities notwithstanding the ongoing presence of pain in the left ankle will improve.
Whether or not the plaintiff would have continued to work full time in her pre-accident employment or similar until age 65 can never be known. However there are a number of factors which taken together lead to the conclusion, that she may not have worked full time until 65 but rather retired earlier than 65 or reduced her working hours or a combination of both. These factors include: that at the time of the accident she had recently experienced not insignificant conflict with her immediate managers at Woolworths which, in my view, made it difficult for her to expect promotion; that she was dissatisfied and not strongly bonded to the work at Tea Tree Plaza after having been in all practical terms demoted upon transfer to that store; that soon after the accident she married a man who was engaged in full time employment such that the financial pressures ordinarily present with a single woman required to look after herself may not have been, over time, quite so great; and the fact that the plaintiff had chronic difficulty and pain with her knee which over time was likely to worsen. All of these matters may well have led to a lack of desire, and in the case of the knee a lack of capacity, in the plaintiff, over time, to continue working full time. As far as the knee is concerned, I have not overlooked the suggestion in the medical evidence that any worsening of the knee problem may result, in part, from the ankle injury causing a change in the gait or vice versa. I accept that either of these possibilities, if they occurred, would still be regarded as having been caused by the accident. However, the plaintiff’s degenerative knee condition as a separate pre-existing condition was still likely to worsen over time even absent the left ankle injury and remains a contingency to be taken into account. In this context I also do not overlook the fostering of Tiffany in early 2005 when she was 10 years old. Of course, this occurred after the accident and after or at or around the time the plaintiff formally resigned her employment. Had the plaintiff not been injured and had she remained in full time employment in early 2005 she may not have undertaken the obligation of fostering Tiffany. Nevertheless the plaintiff had a history of taking time off and working part time when her three (now) adult children were born and in their younger years. Furthermore, she is a kind woman and the reason she took over the fostering of Tiffany was that she felt sorry for her and that, by implication, it would be too difficult for the surviving elderly male foster parent to continue to look after Tiffany after his wife had died. In my view it is a real possibility, had these circumstances presented themselves to the plaintiff even at a time when she was working full time at Woolworths, that she would have reacted in the same way and taken the child in. This would provide further incentive over time for the plaintiff to settle into a new family life with her husband and with Tiffany and to reduce her working hours well before the age of 65.
[22] Ferenczfy v Johnson Diversey Australia Pty Ltd [2012] SADC 22, [259].
The Judge considered that the plaintiff had significantly exaggerated the extent to which her physical problems had prevented her from undertaking ordinary daily activities. The Judge found that she had the capacity to perform daily activities, albeit more slowly and over a longer time frame.
We can find no fault with any of the above findings of the Judge. It was open on the evidence for the Judge to conclude that the swelling and pain were injuries sustained as a result of the defendant’s breach of duty. The Judge’s findings of the psychiatric disabilities were also open on the evidence. No basis has been shown to disturb those findings.
The Judge summarised his award as follows:[23]
[23] Ferenczfy v Johnson Diversey Australia Pty Ltd [2012] SADC 22, [305].
Subject to hearing further from counsel on the issue raised in paragraph [269] above, the plaintiff is entitled to an award of damages comprised of the following.
Non-economic loss (past and future)
$ 35,000
Interest on past non-economic loss
$ 2,000
Past economic loss (wages)
$171,548
Interest on past economic loss
$ 26,367
Past loss of superannuation entitlement
$ 18,204
Future loss of earning capacity
$ 81,480
Future loss of superannuation entitlement
$ 9,500
Past special damages
$ 14,513
Future special damages
$ 1,000
Past gratuitous services
$ 25,000
Interest on past gratuitous services
$ 5,000
Future paid assistance
$ 31,607
Future equipment and taxi needs
$ 20,500
TOTAL
$441,719
Ultimately, the Judge amended the allowance for past economic loss and allowed an amount of $162,870.00 in lieu of the amount $171,548.00.[24]
[24] Ferenczfy v Johnson Diversey Australia Pty Ltd (No 2) [2012] SADC 33.
Once the Judge’s primary findings in regard to injury and ongoing incapacity are accepted, each of the separate awards made by the Judge was well within his discretion. We consider that the overall award of damages was open on the evidence and, in the circumstances, a reasonable award.
Conclusion
We would dismiss the appeal.
WHITE J. I agree that the appeal should be dismissed and agree with the reasons of Gray and Sulan JJ.
I particularly associate myself with their reasons for rejecting the appellant’s submission that the reasons of the trial Judge were affected by the passage of time. The Judge’s careful and comprehensive consideration of the evidence, as revealed by his reasons, contradicts that submission.
I add, briefly, the following reasons.
A principal complaint of the appellant was that the Judge had erred in his consideration of the issue of breach of duty by focussing on what it could have done to avoid the known injury to the respondent, instead of considering the response of a reasonable person looking forward and without knowledge of that injury. The latter is the proper approach.[25]
[25] New South Wales v Fahy [2007] HCA 20 at [57]-[58], (2007) 232 CLR 486 at 505-6; Vairy v Wyong Shire Council [2005] HCA 62 at [124]-[129], (2005) 223 CLR 422 at 461-3.
In my opinion, consideration of the Judge’s reasons indicates that that criticism is not warranted. The Judge adverted specifically to the dangers of hindsight reasoning.[26] In the preface to his articulation of the appellant’s duty of care, the Judge was careful to consider the position as it was known, or ought to have been known, by the appellant before the occurrence of the respondent’s injury.[27] When considering the question of breach, the Judge referred specifically to the reasons of Hayne J in Vairy[28] and to the similar observations of Doyle CJ in McVicar v S & J White Pty Ltd[29] in which each warned against the use of hindsight reasoning.[30]
[26] Ferenczfy v Johnson Diversey Australia Pty Ltd [2012] SADC 22 at [9].
[27] Ibid at [44] and [45].
[28] Vairy v Wyong Shire Council [2005] HCA 62 at [126]-[128]; (2005) 223 CLR 422 at 461-2.
[29] [2007] SASC 107 at [36]; (2007) 97 SASR 160 at 168.
[30] Ferenczfy v Johnson Diversey Australia Pty Ltd [2012] SADC 22 at [49]-[50].
The appellant was critical of the Judge’s articulation of the duty of care by saying “the defendant owed a duty to exercise reasonable care to ensure that the equipment it supplied and maintained was safe for all reasonably foreseeable uses”.[31] It submitted that the word “ensure” put the duty too stringently. However, that submission overlooks the composite nature of this frequently used formulation of a duty of care and, in particular, fails to have regard to the effect of the words “exercise reasonable care”. Further, and in any event, the Judge later described the duty as one “to exercise reasonable care in its efforts to maintain the integrity of the various connections”.[32] It is apparent that the Judge assessed the appellant’s breach by reference to a duty in these terms.
[31] Ibid at [45].
[32] Ibid at [47].
Some of the appellant’s submissions on the appeal seem to challenge the Judge’s finding that its breach of duty had been the cause of the respondent’s injuries. However, as was pointed out to the appellant at the hearing, its notice of appeal did not raise any challenge to the Judge’s findings as to causation. It is accordingly unnecessary to address the submissions which the appellant made in that respect.
On the question of damages, the principal submission of the appellant was that the Judge had erred by applying the so‑called “Dibbins principle”. That “principle” derives from the decision of Bright J in Dibbins v Dibbins[33] and is to the effect that, if a trial judge accepts evidence of a plaintiff as to the effect of injuries, the judge may give effect to that assessment even if there is a conflict of medical opinion or if the medical evidence does not provide an explanation for the plaintiff’s symptoms. Bright J said:
This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.[34]
[33] (1978) 80 LSJS 165.
[34] Ibid at 165-6.
The appellant submitted that the Judge should not have applied the “Dibbins principle” in the present case, given that he had rejected the respondent’s evidence, finding that she had exaggerated her symptoms. It submitted that the approach outlined in Dibbins may be applied only when a trial judge accepts unreservedly a plaintiff’s evidence.
The appellant relied in this respect on a passage in the judgment of von Doussa J in Benham v Comcare.[35] In that case von Doussa J found that the Administrative Appeals Tribunal had not erred when rejecting a submission based on Dibbins v Dibbins given that it had not “unreservedly accepted” the credibility of the applicant.[36] However, it does not follow that an unreserved acceptance of the evidence of a plaintiff is an essential requirement in all cases for application of the so‑called “Dibbins principle”. In my opinion, there is no reason in principle why a trial judge, having made findings as to the extent of a plaintiff’s symptoms based on the judge’s assessment of the plaintiff’s credibility and the other supporting evidence, may not then give effect to that assessment, relying on the rationale stated by Bright J.
[35] [1990] FCA 190.
[36] Ibid at [15]-[16].
As I said at the outset of these brief reasons, I agree with Gray and Sulan JJ that the appeal should be dismissed.
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