Laurendi v Boral Contracting Pty Ltd
[2002] WASCA 297
•1 NOVEMBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: LAURENDI -v- BORAL CONTRACTING PTY LTD [2002] WASCA 297
CORAM: PARKER J
HASLUCK J
SHEPPARD AUJ
HEARD: 3 OCTOBER 2002
DELIVERED : 1 NOVEMBER 2002
FILE NO/S: FUL 44 of 2002
BETWEEN: JOSEPH LAURENDI
Appellant
AND
BORAL CONTRACTING PTY LTD
Respondent
Catchwords:
Damages - Measure of damages in action for negligence - Issue concerning loss of earning capacity - Effect of findings against appellant on credibility - No infringement of rule in Browne v Dunn - Turns on own facts
Legislation:
Supreme Court Act 1935, s 32
Result:
Appeal allowed in part
Award of damages increased to $294,194.50
Category: B
Representation:
Counsel:
Appellant: Mr P V Batros
Respondent: Mr S Walsh QC
Solicitors:
Appellant: Bradford & Co
Respondent: Phillips Fox
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Ashford v Ashford (1970) 44 ALJR 195
Browne v Dunn (1893) 6 R 67
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Devries v Australian National Railways Commission (1993) 177 CLR 472
Klahn v Audeh [2001] WASCA 336
Moran v McMahon (1985) 3 NSWLR 700
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Sohn v Minniti [2002] WASCA 263
State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
Case(s) also cited:
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017
McGhee v National Coal Board [1972] 3 All ER 1008
Miller v Jennings (1954) 92 CLR 190
Randall v Dul (1994) 3 WAR 205
Wilsher v Essex Area Health Authority [1988] AC 1074
PARKER J: I agree, for the reasons given by Hasluck J, that the amount of the award to the appellant should be varied to $294,194.50, and that the appeal should otherwise be dismissed with no order as to costs.
HASLUCK J: The appellant, Joseph Laurendi, was a truck driver involved in the dumping of sand at a tipping location under the control of the respondent, Boral Contracting Pty Ltd. On 8 January 1998 the truck rolled over in the course of a dumping operation and the appellant jumped from the cab of the truck in an attempt to avoid injury. He fell heavily on hard ground striking his face and both hands and body generally.
The appellant commenced proceedings in which he alleged that the accident was due to the negligence of the respondent. Shortly before the trial of the action the respondent admitted liability with the result that the matter became one for assessment of damages only. Particulars of the injuries which were said to have been caused by the respondent's negligence were set out in par 9 of the statement of claim in these terms: Disk prolapse at C5/6 (par 9.1); left hand dysaethesia (par 9.2); right hand dysaethesia (par 9.3); strained cervical spine (par 9.4); strained dorsal spine (par 9.5); fracturing and removal of the plaintiff's front and back teeth (par 9.6). An injury to his lower and upper back was a further matter in issue at the trial of the action.
The assessment of damages was brought on for hearing before Viol J of the District Court. The appellant claimed that he had suffered a loss of earnings from the date of the accident until the date of trial on the basis that he was totally incapacitated for all forms of work. He contended that he would not be able to perform any form of manual or other form of employment in the future. He claimed a loss of earning capacity at the rate of $1,200 net per week until the age of 65 years.
The appellant adduced evidence in support of his claim from various expert witnesses including Mr Barry Slinger, an orthopaedic surgeon, Mr Michael Halliday, an orthopaedic surgeon and Mr Michael Lee, a neurosurgeon. Evidence was also received on the appellant's behalf from his general practitioner, Dr Aquilina, and from two consultant psychiatrists, Dr Stephen Proud and Dr Shawn O'Connell.
The respondent relied upon the evidence of Mr Paul Bannan, a neurosurgeon who undertook surgery upon the appellant's cervical spine at the Mount Hospital on 21 June 1998 in the form of a C5/6 fusion. Dr Andrew Marsden, an occupational physician, and Dr P McCarthy, a specialist psychiatrist, gave evidence on behalf of the respondent also.
It was against this background that the learned trial Judge made various findings in the course of his reasons for decision which were handed down on 27 February 2002. His Honour was satisfied that the injuries as pleaded in par 9 of the statement of claim occurred as alleged. He accepted that in the accident there was an injury to the appellant's cervical and dorsal spine and to the left and right hands. He went on to hold that as a result of the operation performed by Dr Bannan symptoms were relieved although the appellant continued to make complaint of various symptoms.
His Honour noted that Mr Bannan, the treating neurosurgeon, was of the view that as far as the neck injury was concerned the appellant was fit to resume work by September 1998. Mr Slinger found inconsistency in the appellant's clinical signs and that continued in 1999. He had noted excellent muscle tone enjoyed by the plaintiff from 1998 to 2000. In the course of reviewing the expert evidence his Honour referred to certain evidence from Dr Marsden to the effect that the appellant was exaggerating his symptoms and had developed a behavioural trait or affectation of holding his index fingers stiff. Dr Marsden felt that there was no traumatic damage which prevented the appellant from using his index fingers normally in a grip.
The learned trial Judge concluded that a determination as to the true extent of the appellant's symptoms and the nature of his neck and back condition depended on overall conclusions being arrived at as to the appellant's reliability and credibility.
His Honour held, having regard to the totality of the evidence, that after the operation and with the passage of time, the appellant's neck and back were not as the appellant had attempted to make out. He had dwelt on the accident and, whether consciously or not, there was a considerable degree of exaggeration of the symptoms. Good muscle tone in the appellant's body and limited effect on general mobility suggested that he was using his body, especially his neck and back, far more than he was prepared to admit. His Honour concluded that there was injury to the appellant's arms and hands and resultant trauma to his fingers and adjoining joints, but he had chosen to hold his index fingers in an extended position. The evidence did not justify the finding that the condition was genuine.
The learned trial Judge found further that notwithstanding the appellant's evidence as to his depression, he was fit to return to work from a psychological point of view in November 1999.
The learned trial Judge then proceeded to make findings as to various heads of claim. He said that after allowing for some intermittent periods for discomfort, a proper award for pain and suffering and loss of amenities was $40,000. He concluded that the appellant would have been able to return to his pre‑accident employment by the end of 2001 but some allowance should be made for preparation before returning to the workforce. Accordingly, the appellant should be compensated for his inability to work on a full‑time basis to 30 June 2002. Having regard to the evidence concerning previous earnings, this meant that a figure of $818 per week net or $42,536 per annum should be used to calculate the award under this head from 1 July 1999 to 30 June 2002. His Honour then held:
"The award from the accident until 30 June 1999 amounts to $55,055. For the period 1 July 1999 to 30 June 2002 a figure of $42,536 is awarded."
I digress briefly to note that this conclusion contains an obvious mathematical error in that his Honour failed to multiply the relevant annual figure of $42,536 by 3 in order to arrive at the relevant figure for 3 years of loss. It was common ground at the hearing before the Full Court that this mathematical error should be corrected and that the true figure should be $127,608. The total past loss of earnings should be the sum of $182,683, not $97,591.
His Honour concluded that a global award for $2,500 for gratuitous services was adequate as the evidence did not generally establish the claim actually made and no allowance should be made for future gratuitous services. He made no allowance for future psychiatric and medical expenses.
The total award of $186,622.50 was made up in this manner:
General damages
$40,000.00
Loss of earnings
$97,591.00
Gratuitous services
$2,500.00
Future dental expenses
$22,500.00
Special damages
$24,031.50
$186,622.50
When one brings to account the mathematical error mentioned a moment ago, and substitutes $182,683 for the figure of $97,591 with respect to loss of earnings, the appellant would be entitled to an award of $271,694.50 pursuant to the reasoning of the learned trial Judge.
By his notice of appeal the appellant seeks an order that the judgment of his Honour Judge Viol be varied by increasing the award by such amount as the Full Court deems fit. Counsel for the appellant made it clear in the course of argument that essentially he sought to expose various errors in his Honour's reasoning with a view to having the issue of quantum remitted to the District Court for rehearing by another Judge. In the circumstances of the present case, counsel submitted, it was doubtful that the appellate Court could come to any satisfactory conclusion on the printed evidence alone and without having seen or heard the witnesses: Sohn v Minniti [2002] WASCA 263.
The principal issue raised by the appellant's grounds of appeal concerned the learned trial Judge's finding that the appellant's loss of earning capacity would terminate as at 30 June 2002. More particularly, the appellant contended that various findings made by his Honour were wrong in fact and in law and manifestly against the weight of the evidence, namely, that the appellant had chosen to hold his index figures in an extended position; that the condition of the appellant's index fingers was not the result of trauma caused by the accident; that the disability of the appellant's index figures complained of was not compensable.
Counsel for the appellant acknowledged in his written submissions that an appellate Court will intervene in regard to a trial Judge's assessment of damages only where it can be shown that he acted on an error of principle or a misapprehension of fact. There is a power to reassess the damages in an appropriate case to avoid a multiplicity of trials: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370. He referred also to State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588.
In Earthline, and in a number of related cases such as Devries v Australian National Railways Commission (1993) 177 CLR 472 and Abalos v Australian Postal Commission (1990) 171 CLR 167, the High Court confirmed that appellate Courts will generally be reluctant to reject a finding of specific fact which may be founded on the credibility of witnesses including expert witnesses. The finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. However, in cases where the point in dispute is the proper inference to be drawn from proven facts, an appeal Court is generally in as good a position as the trial Judge to draw the necessary inference.
I note in passing that counsel for the respondent generally agreed with these principles. However, he referred also to Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 in which it was said that the nature of a decision on damages is different from an ordinary finding of fact, when that finding of fact is not an opinion or a value judgment. A decision on quantum is an opinion or a value judgment and for that reason an appellate Court is normally slow to intervene. Damages for future loss of earning capacity often depend on uncertainties which resemble the exercise of discretion whereby an appellate Court will decline to interfere if the amount awarded is not beyond the limits of a sound discretionary judgment: Ashford v Ashford (1970) 44 ALJR 195. See also Moran v McMahon (1985) 3 NSWLR 700 at 715.
Counsel for the appellant referred to a number of matters in seeking to establish that the learned trial Judge had acted on an error of principle or a misapprehension of the facts. Counsel referred to passages in the judgment in which, he argued, his Honour gave an undue emphasis to the appellant's alleged inability to bend his fingers as a matter weighing against the appellant's credibility. In particular, counsel referred to a passage at par 53 of the judgment:
"The suggested inability of the plaintiff to bend (and use) his index figures is a crucial matter, both as to the plaintiff's general allegations and his reliability and credibility. The majority of experienced medical practitioners considered that such complaints and appearance to be bizarre and without easily (or any) fully explained cause. Mr Slinger, I thought, was quite sympathetic to the plaintiff as to this matter, although even he had some reservations. Once again, the presence of excellent muscle tone in those areas would have a tendency to belie the plaintiff's complaints and appearance."
The learned trial Judge then went on to say this at par 54 of the judgment:
"Having observed the plaintiff and considered the evidence, I conclude that there were injuries to the plaintiff's arms and hands, and some resultant trauma to his fingers and adjoining joints. For some reason from that time until now, the plaintiff has chosen to hold his index fingers in an extended position - the obvious effect of this is to give the fingers an appearance of pallor and some atrophic changes - non‑use of the index fingers must have such a result. I have a strong suspicion, although I am not able to find it as a fact, that the plaintiff initially held his fingers out and stiff to avoid using them because of pain and found it, at first, difficult to recommence using them, thereafter, he chose to keep the fingers in an extended position in order to convince people, especially his medical practitioners, that he had a genuine and significant disability. Having reviewed the evidence, and in the light of the medical evidence, I am not satisfied, therefore, that there is sufficient evidence to justify finding that the condition of the plaintiff's fingers is genuine in the sense of being a result of trauma caused by the motor vehicle accident. Once again, the finding that the plaintiff had good grip in his hands is significant."
In reviewing this issue, it is important to keep in mind that the appellant was cross‑examined at some length about the extent of his limitations with particular reference being made to his two index fingers. He was asked to show his Honour the range of movement. It was put to the appellant squarely on a number of occasions that he had exaggerated his situation in the course of presenting his position to the relevant medical practitioners.
It must be kept in mind also that there was evidence before the learned trial Judge from the various medical experts that the appellant's extended index fingers were an unusual presentation for which there appeared to be no explanation. Dr Marsden said specifically in his report dated 10 July 2000 that he was convinced that the appellant's complaint concerning his index fingers was an affectation and in fact he was inclined to flex the fingers slightly on both sides when he was not concentrating. Dr Lee said in his report dated 21 September 2000 that he could find no explanation for the extended index fingers. He had not seen anything like it before. Mr Halliday said in his report dated 13 September 2001 that he had not seen a case like this before. Dr Slinger reported on 19 September 2001 that grip strength was excellent and expressed the view that non‑movement of the digit fingers is rare. Dr Bannan said in his report of 28 August 2000 that there was no obvious reason why the appellant should hold his index fingers extended and that he had not seen this phenomena before.
Against this background, I am not satisfied that the learned trial Judge's finding against the appellant, as reflected in the passages of the judgment mentioned earlier, was against the weight of the evidence, or that the learned trial Judge gave an undue emphasis to this matter in assessing the appellant's credibility. His Honour was faced with various incongruities in the appellant's case. He was therefore obliged to evaluate the appellant's credibility. To my mind, the findings of the learned trial Judge were compatible with the evidence and it is not open to an appeal Court in these circumstances to intervene. It cannot be said that the trial Judge misused his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.
This brings me to the appellant's submission on appeal that the learned trial Judge gave an undue emphasis to evidence concerning good muscle tone in the appellant's body which suggested that the appellant was using his body, especially his neck and back, far more than he was prepared to admit. Counsel contended that the appellant was never cross‑examined upon such matters, and as to his fitness for work, being issues upon which the learned trial Judge based findings against the appellant as to credibility. This was said to offend the rule in Browne v Dunn (1893) 6 R 67 at 76.
The rule in Browne v Dunn (supra) is put succinctly in the headnote of the relevant report. If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross‑examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it is otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his story, or (per Lord Morris) the story is of an incredible and romancing character.
Counsel for the respondent in the present case argued persuasively that the rule is aimed at avoiding any unfairness to a witness in the presentation of his evidence. Counsel submitted that no element of unfairness had been exposed in the circumstances of the present case. It was apparent from the medical reports that had been brought into existence well before the hearing that the appellant would be obliged to address some unusual features of his physical condition, including the extended index fingers. The issues were well understood before the trial commenced. As I have already indicated, at the trial of the action the appellant was cross‑examined at some length about whether the matters he complained of were genuine. It was open to him to comment on matters such as muscle tone and the like which eventually proved to be significant. It was undoubtedly part of the respondent's case that the appellant was exaggerating his current condition in various respects. In such circumstances, Judges are both entitled and bound to think for themselves and to determine cases according to the evidence in front of them: Klahn v Audeh [2001] WASCA 336 at par 18.
I consider that there was sufficient evidence before the learned trial Judge to justify the conclusions he reached both on findings of fact and the basis upon which damages should be awarded having regard to those findings of fact. The learned trial Judge was entitled to give weight to the evidence of the treating neurosurgeon, Dr Bannan. It is apparent from Dr Bannan's report dated 22 September 1998 that despite a further motor vehicle accident in September 1998, the appellant had a good solid bony fusion as a result of the operation. He could move his neck without any restrictions and was fit to go back to work.
Having regard to the evidence of Dr Slinger, Dr Lee, Dr Marsden and Dr Bannan the learned trial Judge was entitled to conclude that the appellant's neck and back had improved and were no longer disabling. The learned trial Judge was entitled to conclude on the evidence that loss of earning capacity in so far as it might be productive of financial loss would terminate as at 30 June 2002. The appellant's evidence of excruciating pain in the back was inconsistent with lack of any documented complaint of low back pain and lack of any real complaint of pain in the thoracic spine in the period early 1999. It is significant that the defendant had to call Dr Bannan as the treating neurosurgeon. I consider that the award for loss of earning capacity, past and future, was appropriate having regard to the findings of fact.
The appellant's grounds of appeal and related submissions also raised issues concerning the adequacy of the award of $40,000 for general damages for non‑economic loss. The award in the sum of $2,500 for past and future gratuitous services were said to be so inordinately low as to be below the bounds of a sound discretionary judgment and to be wrong in fact and law. It was said further that the findings that no damages should be awarded for future medical and psychiatric expenses were manifestly against the weight of the evidence and wrong in fact and law.
As to these matters, I am not satisfied that an error in principle or a misapprehension as to the relevant facts was demonstrated. The award of $40,000 for general damages was within the allowable range having regard to the findings made by his Honour. The evidence with respect to past gratuitous services was scanty and, as to the evidence of the appellant's wife, somewhat imprecise. There was no evidence of commercial rates. The sort of evidence that might have allowed the learned trial Judge to make other than a modest finding as to past gratuitous service was not brought forward. His Honour's stance concerning future psychiatric and medical expenses appears to be justified by the evidence. Dr O'Connell discontinued treatment in November 1999 as the appellant's depression had improved. In a report dated 19 October 2001 Dr McCarthy expressed the view that the appellant was not permanently psychiatrically impaired due to the accident. His Honour noted that the various specialists seen by the appellant had to rely upon subjective reporting and were therefore very much dependent upon the reliability and accuracy of the appellant's reports as to his condition.
I must now turn to the question of interest. Section 32 of the Supreme Court Act 1935 provides that in any proceedings for the recovery of money including damages, the Court may order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the money in question for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. By s 32(2)(aa) the provision does not apply in relation to any general damages in respect of pain and suffering or the loss of the enjoyment or of the amenities of life awarded in relation to personal injury.
It is apparent from the figures mentioned earlier that his Honour did not make any allowance in respect of interest. The grounds of appeal were amended at the hearing in order to include a claim for interest on the past loss of earnings and past gratuitous services component of the award. Counsel for the respondent on the appeal was not able to mount a compelling argument as to why interest should not be allowed in the manner contemplated by the statutory provision.
There was a comparatively minor difference of opinion between counsel as to the basis of calculation although both counsel seemed to accept that the appropriate rate of interest was 6 per centum per annum.
Counsel for the appellant contended for a figure of interest on total past economic loss of $24,651. However, with a view to avoiding unnecessary controversy counsel indicated that the appellant would accept $22,500 by way of interest on the assumption that, subject to correction of the mathematical error mentioned earlier, there was no dispute that the operative figure in respect of total past economic loss was the sum of $182,683. Accordingly, I will proceed upon the basis that the award should be increased by a component in respect of interest in the sum of $22,500.
In summary, then, I consider that the appeal should be allowed to the extent of correcting the mathematical error previously mentioned and allowing to the appellant a further sum of $22,500 by way of interest. The total amount to be recovered by the appellant is $294,194.50 (being $271,694.50 plus $22,500 in respect of interest). It follows that in the manner allowed for by the notice of appeal the judgment dated 27 February 2002 is to be varied by increasing the amount awarded to the appellant by way of damages to the sum of $294,194.50. I consider that the appeal should otherwise be dismissed. I consider that there should be no order as to costs because the appellant has only succeeded on matters about which there was no issue.
SHEPPARD AUJ: I am in agreement with the judgment of Hasluck J, and I have nothing further to add.
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