Johnston v Cowra Shire Council - [2000] NSWCA 117

NEW SOUTH WALES COURT OF APPEAL

CITATION: Johnston v Cowra Shire Council [2000] NSWCA 117

FILE NUMBER(S):
40785/98

HEARING DATE(S): 5 May 2000

JUDGMENT DATE: 05/05/2000

PARTIES:
Colin Joseph Johnston (Appellant)
Cowra Shire Council (Respondent)

JUDGMENT OF: Stein JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 42/98

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
J Glissan QC/A Capelin (Appellant)
A Hewitt SC (Respondent)

SOLICITORS:
Golsby Whiteley (Appellant)
P W Turk & Associates (Respondent)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40785/98
DC 42/98
STEIN JA
HEYDON JA

Friday, 5 May 2000

COLIN JOSEPH JOHNSTON v COWRA SHIRE COUNCIL

JUDGMENT

STEIN JA: The Court is in a position to give judgment now and I will ask Heydon JA to give the first judgment of the Court.
HEYDON JA: This is an appeal by the plaintiff against the quantum of damages awarded by Phegan DCJ in relation to a back injury suffered by the plaintiff when he slipped while working on a truck as a temporary full-time employee of the defendant on 18 April 1995.
There were three grounds of appeal.
The first ground was as follows:
"The amount of damages for non-economic loss was manifestly inadequate having regard to the claimant's age, background and employment prospects in circumstances where there is no evidence available to satisfy the requirements of Purkess v Crittenden (1965) 114 CLR 164."
The written submissions of the plaintiff contended as follows in paragraphs 3-5:
"It is submitted that his Honour's finding in relation to non-economic loss of 24% of a most extreme case was manifestly inadequate and against the weight of the evidence.
According to the plaintiff he suffered intermittent back pain of a debilitating nature following the initial injury on 18 April 1995, and it was expected that pain would continue into the future and be subject to aggravation by work stressors.
The plaintiff did not complain very much as he was anxious to keep his job. Having regard to the plaintiff's age and the medical evidence of the debilitating nature of problems likely to be experienced by the plaintiff in the future, it is submitted that his Honour's finding in relation to non-economic loss was manifestly inadequate.
It is submitted a more appropriate finding would have been in the order of 35% of a most extreme case."
The contention that the plaintiff did not complain very much as he was anxious to keep his job is supported by a finding of the trial judge at red 40 L-X and also red 41 M-P. The contention that the plaintiff suffered debilitating back pain and that this was likely to continue for many years, the plaintiff only being 35 at the time of the trial, is supported by findings of the trial judge at red 45 T to 46 K.
However, other findings by the trial judge or evidence narrated by the trial judge in non-critical fashion, stand in the way of accepting the submission.
The first of these was at red 40 Y to 41 I where his Honour said:
"There is also the evidence, not controverted, that the plaintiff continued to work on, to all appearances, in much the same way after the 1996 incident [I interpolate to say that is a reference to another accident causing injury] as he had after that of 1995. While he may have been suffering from intermittent pain, and while he may have had to avoid taking on particularly heavy lifting or other activities which would have placed undue strain on his back, he nonetheless worked on a full-time basis, and as far as his fellow workmen were concerned, showed no signs of avoiding the overall tasks which he was required to do. In fact the evidence was that he was regarded as a particularly reliable and good workman."
The trial judge concluded that “he was a hard worker” (red 41 M).
The second group of findings or of evidence favourably referred to was to the effect that even before the 18 April 1995 injury and the further injury on 7 August 1996, the plaintiff's back was in a damaged state in that there were "degenerative changes and congenital weakness disclosed in the x-rays of the plaintiff's back" (red 44 D-E). The trial judge said at red 44 F-P:
"Although there was ample evidence from the medical experts that the incidents in both 1995 and 1996 could, in some circumstances, have had a traumatic effect on a person without any congenital weakness, nonetheless, the overall medical opinion clearly supported the view that some account should be taken of the fact that the plaintiff did have a back which was, for reasons quite independent of either of these events, likely to precipitate some such condition as that from which he now suffers.
There is also in support of that, the incident, albeit of no long-term effect, while working with Steggles in the early 1990s, which was at least a warning signal, if nothing else, that the plaintiff had a condition in his back which was likely to respond adversely to undue stress.
There is in this regard the opinion of Dr Burgess...that one-third of his ongoing condition, even if the later events were accepted as the precipitating cause(s) should be attributed to his congenital condition."
There is one other area of evidence referred to by the trial judge to the following effect (red 37 R to 38 H):
"[At about 2 September 1996] that is after the results of the x-ray and CT scan were known, a meeting took place between the plaintiff, Mr Fleigner, his supervisor, and Mr Alan Barlow, the Council's maintenance foreman. According to the evidence of Messrs Fleigner and Barlow, the plaintiff had been, to use Mr Fleigner's word "ecstatic" about the job offer. [That was an offer of permanent employment.] But he went on to tell them of a CT scan and went on to say that he had had back problems for years and used the words which both of the witnesses quoted, `You have backed the wrong horse.
He suggested that his back problems were hereditary and told the two men that the Council would not have to worry about having to bear any blame for his back condition. He went on to say, according to Mr Fleigner, that although he had back pain from time to time as a result of the condition, he took care while he was working and knew how to avoid any serious injury."
The trial judge's conclusion was set out at red 46 L-Q as being that there was a:
"likelihood that the congenital condition of his back would have brought about at least some degree of pain and discomfort over time, not necessarily identical with what he now suffers, but sufficient to be taken into account as mitigating the percentage which might otherwise have been appropriate."
This led the trial judge to select 24 per cent of a most extreme case as the appropriate figure after "taking all of those matters into account".
It is not easy to reach a conclusion as to the extent of the plaintiff's symptoms before 18 April 1995. However, the selection of an appropriate percentage in relation to a most serious case entails a judgment resting on matters of fact and degree and on matters of opinion, impression and estimation on which minds can reasonably differ. The plaintiff, but for reliance on Purkess v Crittenden, does not point to any factor which the trial judge ought to have considered but did not, nor to any relevant factor which he failed to consider, nor to any error of fact or misdirection in law. Nor can it be said that the result is so extreme as to point to a miscarriage of the judicial process.
It was submitted that any reading of the judgment and the transcript would cause a reader to conclude that the figure of 24 per cent was plainly wrong. I disagree.
The plaintiff gave evidence-in-chief that after the accident he had been able to do fencing, mustering and tractor work two to three days a week that left him "on and off sore" (combined appeal book p 22 Y). He had "niggling discomfort" two to three times a week if he engaged in constant bending, constant sitting or constant standing (combined appeal book 23 W). He was not taking regular medication but he took Voltaren when his back got bad, once or twice a month (combined appeal book 26 B-C).
In cross-examination he said he was having less frequent bouts of pain and taking medication less frequently (combined appeal book 26 S-V). Admittedly this would appear in part to have been because in the 18 months before the trial he had done less work than in the period when he was engaged by the defendant full-time (combined appeal book 50 S-V).
The notice of appeal, though not the written submissions, referred in relation to this ground of appeal to Purkess v Crittenden. The issues connected to that case will be discussed in relation to ground 3. Subject to that discussion, in the circumstances no appealable error has been shown in relation to ground 1.
Ground 2 was as follows:
"The amount of damages for future economic loss was manifestly inadequate having regard to the claimant's age, background and employment prospects, in circumstances where there was no evidence available to his Honour to satisfy the requirements of Purkess v Crittenden (1965) 114 CLR 164."
Paragraph 7 of the plaintiff's written submissions put the argument in the following way:
"His Honour found the plaintiff had suffered a reduction in earning capacity of $150 per week. It is submitted that finding was against the weight of the medical evidence which suggested the plaintiff was unfit for labouring work, despite the fact he had continued to perform that work on a part-time basis following the accident and up to the time of trial. It is submitted that the plaintiff's loss of earning capacity should have been assessed in the order of $300 per week."
The trial judge found at red book 45 B-P the following:
"There is no real dispute...that, putting aside for one moment the question of the contributing causes, the plaintiff now suffers from a degree of permanent disability. It is a disability which has a disproportionate effect on the plaintiff's earning capacity in view of the kind of work which he has been familiar with and successful in undertaking, namely farm labouring and other types of labouring work such as that which he was doing for the defendant Council at the time of the Council's negligence.
The permanent character of the disability and in particular its effect on his earning capacity is not only supported by the medical evidence, but perhaps most pointedly by the Council's own decision to refuse permanent employment when his back condition was revealed to the Council in the questionnaire completed by Dr Wallington. That would seem to certainly deny the Council any opportunity to suggest that there was no permanent disability affecting his capacity to earn."
At red book 47 R to 48 I the trial judge said:
"It is appropriate in my view, to take into account the level of income which the plaintiff enjoyed at the time of the incident giving rise to this claim, and indeed to the very real prospect that he was at the point of full-time employment at a similar level of income, if not something slightly better, and, in view of the uncontroverted evidence, the fact that he will be very unlikely to secure employment of a similar kind in future because of his ongoing problems with his lower back, notwithstanding his own continued assertions, at least on some occasions, that he is quite well enough to undertake full-time employment of the same kind.
The differential in those circumstances, were it not complicated by the effect of his congenital condition, would be some $150 per week between what he might have been able to earn as a full-time labourer able to undertake the full range of heavy tasks, and the somewhat more limited choices which are now available to him as an unskilled labourer unable to undertake that same full range of activities."
In short the complaint is that $300 should have been selected, not $150.
The reference in the ground of appeal to Purkess v Crittenden may be put on one side, since it is taken up by ground 3.
Neither the trial judge nor the plaintiff, in his written submissions on the appeal, stated specifically why the particular figure selected was selected. However, the defendant submitted on appeal that the figure could be arrived at in the following way, and I quote from paragraphs 17 to 22 of the written submissions:
"The respondent accepts that a comparable earner was paid $400 net per week at the time of trial. The appellant's evidence (combined appeal book 25 N) was that at the time of the trial he was averaging about three days work each week, including one day on which he worked for his landlord without pay in return for the provision of rent. The trial judge was therefore entitled to take as the starting point, that the appellant was losing two days work each week which, on the basis of comparable earnings, represented a loss of $160.00 each week.
The trial judge was, however, also entitled to make allowance for the evidence given by the appellant that he was fit for a number of forms of light, full-time employment, such as driving a forklift in a factory or a warehouse and many other jobs (combined appeal book 28 D-I).
The trial judge could properly conclude, therefore, that the appellant might, in due course, find suitable full-time employment at a rate approaching or equalling that paid to comparable workers with the respondent."
It is not clear how easy it would have been for the plaintiff to find what the defendant called "light full-time employment" in the rural region in which he lived, in the neighbourhood of Orange. He had tried but he had not succeeded.
The figure of $150 selected by the trial judge corresponded roughly with the three day working week. As a matter of past history, the plaintiff had been able to work to that extent. That is a solid guide to his ability to continue at that level, at least for some time into the future, albeit with episodes of pain. If the plaintiff obtained full-time work, his overall loss would fall.
There was complaint made by the plaintiff on appeal that the trial judge had failed to take into account that it might not be possible for the plaintiff to work for the next 30 years, that is to say until the plaintiff obtained the age of 65. The trial judge's calculations were based on a period of 30 years running from the date of the trial, ie from the time when the plaintiff was aged 35. It is not clear from the materials before the Court whether any submission was made to the trial judge corresponding with that put to this Court.
In my judgment if the favourable, though possibly not high, chance of light full-time employment is balanced against the unfavourable possibility of a reduction in part-time work, of which there was apparently no specific evidence, and the unfavourable possibility that when the plaintiff reaches his 60s he would not be able to work for three days a week, the trial judge's figure does not appear appealably wrong.
The third ground of appeal was as follows:
"His Honour erred in reducing the quantum of the plaintiff's future economic loss from $150 per week to $120 per week in order to take into account the likelihood of the plaintiff's congenital condition interfering with his earning capacity in circumstances where there was no evidence available to satisfy the requirements of Purkess v Crittenden (1965) 114 CLR 164."
Although ground 3 is expressed only as bearing on the claim for future economic loss, the underlying reasoning in support of the appeal on this point has relevance also to the claim in ground 1 of error in relation to non-economic loss.
Ground 3 relates to two passages in the reasons for judgment of the trial judge.
The first was at red book 44 V-Z where the trial judge said:
"some substantial allowance has to be made for the existence of the degenerative condition which was identified in the medical reports."
The second was at 48 J-N where his Honour was speaking in relation to future economic loss:
"I have taken into account the factor of the ongoing likelihood that his congenital condition would have had some adverse effect on his earning capacity and have therefore based the calculation for his future loss on a differential loss of $120 per week."
In written submissions the plaintiff cited a passage from Purkess vCrittenden (1965) 114 CLR 164 at 168 commenting on Watts v Rake (1960) 108 CLR at 158. It is not necessary to quote that passage, nor to quote the passage in the joint reasons for judgment of Barwick CJ and Kitto and Taylor JJ which immediately follows the quoted passage. The Court was saying that no reduction in damages can be made on the mere submission of the defendant based on an alleged pre-existing incapacity, unless that submission meets an evidential burden. If the defendant does that, the legal burden remains with the plaintiff to satisfy the trier of fact on the whole of the evidence as to the extent of the injury. Here the defendant had to tender evidence capable of establishing a pre-existing condition and its effects. If it did this it was for the plaintiff to prove the extent to which his injury was caused by the defendant's negligence.
The submission of the plaintiff on the oral argument differed somewhat from that put in writing. In writing in the first paragraph numbered 12 of his written submissions, the plaintiff said:
"It is submitted his Honour erred in reducing the plaintiff's claim for economic loss by 20% in the absence of any evidence that his incapacity was wholly or partly the result of some pre-existing condition.
Alternatively it is submitted that the defendant had not discharged the onus of proof in relation to pre-existing condition or abnormality and, as such, according to the authority Purkess v Crittenden, his Honour erred in making the arbitrary reduction."
That written submission involved two contentions. The first is that there was no evidence that the plaintiff's incapacity was the result of a pre-existing condition. The second was that the defendant had not discharged an onus of proof on it.
In oral argument the plaintiff's position was refined. In oral argument the complaint was that there was no specific medical evidence as to when the plaintiff - but for the April 1995 accident - would have commenced to suffer impairment to his capacity to work in the later years of his life.
Dr Gliksman was relied on and called by the defendant. He gave evidence at combined appeal book 84 H, having identified that the plaintiff's back was suffering from a congenital anomaly to the following effect:
"Q. Does the presence of a congenital anomaly of that type render a person more or less susceptible to the consequences of stressors on the lumbar spine?
A. More susceptible.”
At combined appeal book 85 R-T, Dr Gliksman said in chief:
"The presence of the anomaly is a risk factor for precisely the type of injury seen on the CAT scan. That makes it more likely that Mr Johnston would have experienced that injury with some lifting injury which would be less likely to cause that type of injury in a person without the anomaly."
In cross-examination Dr Gliksman said at combined appeal book 94 J-M:
"Q. In relation to the likelihood of this, the risk factor associated with the congenital abnormality, you say it plays a role if the history were that the plaintiff had been doing heavy farmhand labouring type work for years prior to 1995 without any pain or discomfort in his low back, then that suggests that the risk factor was not particularly high, doesn't it?
A. No it wouldn't indicate that, but rather that the effect would be in combination with general aging process and some degenerative change was seen in that region."
Dr Morgan was called by the plaintiff and gave evidence-in-chief to the following effect on page 97 N-T of the combined appeal book:
"Q. In your subsequent report you referred to that abnormality as probably predisposing him to his prolapsed intervertebral disc and is likely to predispose him for further back injury with an awkward lift?
A. Yes.
Q. How much effect, in your opinion, would this congenital abnormality have by way of predisposition?
A. Do you mean in percentage terms or just--
Q. No, in a general descriptive term?
A. General term. Well, any abnormality of this nature means it is more likely that a specific stress to the back will cause a more severe injury than someone who hasn't got such an abnormality."

In his report Dr Morgan had said, as recorded in combined appeal book page 138 H:
"Mr Johnston has a prolapsed intervertebral disc at the L4/5 level and this is associated with a partial sacralisation of L5 with an abnormal joint between the enlarged left transverse process and the left ala of the sacrum. This joint showed some degenerative change in the x-rays of 27 August 1996. This abnormality has probably predisposed him to his prolapsed intervertebral disc and is likely to predispose him to further back injury with an awkward lift."
Dr Burgess provided a report tendered by the plaintiff which said at combined appeal book 133 R:
"He would be wise to seriously consider retraining for a lighter job. His problem represents a 20 per cent permanent impairment of his back, one-third of which is due to the presence of the congenital fusion and his susceptibility to injury and two-thirds due to the significant aggravation of his problem by the two injuries as he describes them."
The medical evidence referred to appears to have been directed primarily to the issue of whether the existing abnormality predisposed the plaintiff to suffer the injury he suffered on 18 April 1995. But it also demonstrates and rests on conclusions from a condition which would have been likely to have interfered with his enjoyment of life in any event, and which meant that his earning capacity was impaired even before 18 April 1995. The plaintiff's argument is that there is a lack of specificity in the medical evidence in that the doctors did not indicate how, but for the injuries of 1995 and 1996, enjoyment of life might have been reduced or economic capacity might have been less effectively deployed.
In my judgment the argument is essentially an appeal to a standard which is nearing perfection. No doubt if medical opinion had been prepared to offer specific estimates as to at what ages particular activities - whether they be non-working activities or working activities - would cease to be open to the plaintiff, if credible, that evidence would have been valuable. However, it was open to the trial judge to conclude from the medical evidence that the pre-existing condition was likely to affect the plaintiff's capacity to earn in his later years, and was also likely to affect his enjoyment of life in later years.
This particular complaint was not put as a separate ground of appeal, which circumstance may lend some support to the view that the matter was not taken up specifically with the trial judge as an aspect of his assessment of damages. Whether it was or not, in my judgment the medical evidence was sufficient to permit the trial judge to draw the inferences which he drew and which justify his reduction of the figure of $150 a week to $120, and also to support his conclusions as to non-economic loss.
In my opinion the appeal should be dismissed with costs.
STEIN JA: I agree with Heydon JA. Accordingly the order of the Court is that the appeal is dismissed with costs.
(Counsel for the appellant applied for a Suitors’ Fund Act Certificate.)
As sympathetic as we might be to the plaintiff's situation, it seems to me that there is no ground made out for a Suitors' Fund Act Certificate. Accordingly we would refuse that.

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LAST UPDATED: 10/05/2000