Libreri v Ironidol Pty Ltd - [2006] NSWCA 266

NEW SOUTH WALES COURT OF APPEAL

CITATION: LIBRERI v IRONIDOL PTY LTD & ORS [2006] NSWCA 266

FILE NUMBER(S):
40693/05

HEARING DATE(S): 9 August 2006

DECISION DATE: 28/09/2006

PARTIES:
Steven LIBRERI
IRONIDOL PTY LTD & ORS

JUDGMENT OF: Mason P Beazley JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13263/01

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

COUNSEL:
Appellant: S Norton SC/ E Walsh
Respondent: L King SC/ M Robinson

SOLICITORS:
Appellant: Brydens Law Office
Respondent: Wootton & Kearney

CATCHWORDS:
NEGLIGENCE – Employer’s liability for – Non-economic loss, future economic loss – Superannuation – Impact of Workers Compensation Act 1987 and Civil Liability Act 2002 (ND)

LEGISLATION CITED:
Workers Compensation Act 1987
Civil Liability Act 2002

DECISION:
The parties are directed to file draft orders to give effect to these reasons within 7 days, failing which each party is to file, within a further 7 days, his or its proposed orders accompanied by submissions as to the points of difference.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40693/05
DC 13263/01
MASON P
BEAZLEY JA
BASTEN JA
Thursday 28 September 2006

Steven LIBRERI v IRONIDOL PTY LTD & ORS

JUDGMENT

MASON P: The appellant was injured at work on 6 June 2000 when he was struck by an object thrown from an the upper floor of a building site. He sued his own employer, the man who threw the object (Mr Foschini) and that man's employer. At the commencement of the hearing in the District Court, the judge was informed that breach of duty of care was admitted by all three defendants and that the defendants had agreed amongst themselves as to the proportion in which each bore responsibility, in terms of liability, for the injury and loss suffered by the appellant. The Court was further informed that most heads of damages had been agreed. What remained to be determined were claims for non-economic loss, future out-of-pocket expenses and future wage loss, including superannuation.
The damages payable by the first defendant had to be assessed in accordance with the Workers Compensation Act 1987. The damages payable by the second and third defendants had to be assessed in accordance with the Civil Liability Act 2002 because those parties were joined after Part 2 of that Act commenced.
The appellant was working as a dogman and rigger. His employer, the first respondent, owned a mobile crane needed at the building site. Terrace houses were being built and the crane was being used to lift building materials to and from the upper floors. At the time of the accident the appellant was working on level two.
Tile pallets have a four-part base, each part of which is made of hardwood. The whole base is about one and a half metres by two metres in area. All four parts have sides, so that when one stands back and looks at the whole pallet, it looks like a large crate.
The appellant said that he was struck by the whole of the hardwood pallet, including the sides (Black 9-10). He said it weighed about 45kg. He was hit on the right shoulder and on the side of the head just above his right ear. The pallet landed on his neck and pushed his head to the left before it fell to the ground. He was knocked over, but got back on his knees and stayed on his haunches. He could not continue working. Later that day he went to a general practitioner, Dr White, and was sent for x-rays and physiotherapy.
The trial judge was not impressed with the accuracy of the appellant’s evidence. His Honour referred at Red 27-8 to particular matters taken into account. They included the discrepancy between the evidence that the pallet weighed 45kg and the history recorded in the general practitioner’s report. According to Dr White, the appellant told him on the day of the accident that he had been struck on the head by a pallet weighing approximately 20kg. The judge considered that the appellant was exaggerating in his evidence about the weight of the pallet and that he was doing so in order to improve his prospects of recovering a substantial damages award. Several other findings of exaggeration were made.
The only eyewitness was Mr Foschini, the second respondent. The trial judge said:
Mr Foschini was nervous while he was in the witness box and it was obvious that although he had a reasonable command of the English language, he was by no means fluent in it. Mr Foschini also said his writing skills in English were basic. I consider Mr Foschini was a very honest witness on whose evidence the Court can rely.
The recorded answers of the witness bear out in his Honour's observations about English not being Mr Foschini’s first language.
Mr Foschini said in evidence that he had been removing tiles off a pallet on the third level of the building. He described the pallet as approximately square shaped with four sides and a top, wrapped in plastic. He had removed the plastic top so that tiles could be unloaded. He also removed one of the side panels which he then dropped down to the next level of the building. Mr Foschini was a plasterer and he had never performed this task before. The appellant walked onto the balcony area just as Mr Foschini dropped the object. He said it weighed between two and two and a half kilograms. The appellant swore at him, but did not fall over. He just protected himself with his hand and then walked to the other end of the verandah. According to Mr Foschini, after he had apologised to the appellant, the appellant told him he was sorry for what he said and referred to suffering a headache from a previous accident.
Mr Foschini was cross-examined, principally by reference to a single question and answer recorded in the notebook of a WorkCover inspector, Mr Green, who interviewed him on 27 June 2000. He said that he had felt intimidated by the interview because nothing had happened before to him in 25 years in the building industry. He emphasised that his English was inadequate, using language during the cross-examination that demonstrates to me that he was telling the truth in this regard (see for example Black 121N). He also said that he could not read much English at the time when he was questioned by the WorkCover inspector, which was five years before the trial.
The judge accepted the evidence of Mr Foschini, in preference to the appellant, as regards the size and weight of the object that struck the appellant. He held that Ex U (the inspector’s notes) did not differ significantly from the witness’ oral evidence. In particular, the judge held that Mr Foschini’s recorded answer referring to “the pallet” was meant to be a reference to a bit of the pallet. The judge accepted Mr Foschini’s explanation, particularly since a pallet weighing 45 kg would have made a significant mark on the appellant and most likely drawn blood. There was no evidence of this having occurred.
His Honour continued:
In addition I am satisfied that exhibit U is not a verbatim statement of Mr Foschini. In my assessment, what appears in exhibit U represents the essential core of what Mr Foschini told Mr Green, but Mr Green has put it into his own words to make sense of it. Although Mr Green denied this, I do not accept his evidence. Mr Green took the statement five years ago and I am satisfied he had no independent recollection of anything that was said to him. Nevertheless, he rigidly and repeatedly said in evidence that what he recorded was exactly what Mr Foschini said. This cannot be so because exhibit U reads like a document written by someone for whom English was a first language. Mr Foschini was not fluent in English and it is obvious Mr Green recorded what was said in a way that would hopefully make sense and reflect correct use of grammar and syntax. This is why I am satisfied the word “pallet”, when referred to in exhibit U, was used loosely by all concerned and I accept Mr Foschini when he says he hit the plaintiff with something which was very similar to exhibit 2 and he had thrown it down to level 2 because there were nails sticking out of it.
In my opinion, this conclusion was well open to the trial judge. I am unpersuaded that his Honour erred in preferring Mr Foschini’s testimony.
Senior counsel for the appellant, Ms Norton SC, maintained the challenge to these findings developed in the written submissions. She took the Court to a series of points that were said to establish that the trial judge ought not to have reached the conclusion that he did. In my assessment the matters referred to were peripheral. On the critical issue Mr Foschini was unshaken and it was well open to the judge to accept him.
At the end of the day this was not a very significant issue because there is no dispute that the appellant was struck and injured by a wooden object thrown by Mr Foschini from the level above.
It is true that the appellant’s credit was damaged, in the eyes of the judge, by his exaggerated testimony with reference to the size of the object and other matters (see Red 28, 33, 38, 39). These conclusions were, however, open to his Honour and have not been shown to be wrong, in my view. I do not accept that the judge overlooked the possibility that the appellant’s demeanour as a witness may itself have been a product of the accident.
These matters aside, the appeal proceeds from the primary facts found by his Honour, portions of unchallenged evidence, and medical evidence consistent with the judge’s ultimate conclusion that the appellant had a tendency to exaggerate, but was not a malingerer.
Consequences of the accident
Dr White, who saw the appellant on the day of the accident (6 June 2000) and on several later dates in 2000 reported:
I saw him within a few hours of injury when he was complaining of a dull headache and painful cervical spine and shoulders. Examination revealed slight swelling around the occiput, but no abrasion. The cervical spine was non-tender and his range of movements was reasonably full and free. I gave him pain relief medication and arranged to see him two days later. When I saw him a few days later his head pain had improved, but the pain in his neck and shoulders had become worse and he had developed pain in his lower back. He had multiple muscle aches. Examination showed restricted range of movement in his lumbar-sacral spine, but no tenderness either in his back or neck, but there was also restricted range of movement. X-rays of his skull were reported on as being normal. He was referred for physiotherapy and he made relatively rapid improvement with the physiotherapy and a report dated 07 July had shown that Mr Libreri had improved greater than 50 per cent since commencement of treatment and he had regained full shoulder and neck movement at that stage, he was gradually improving his strength and was continuing with his physiotherapy program.
I saw him with regard to this injury on 25 August when he stated that his neck and upper back pain had improved greatly, he had no head pain and he was continuing physiotherapy treatment three times a week. He had returned to restricted duties. I saw him again on 5 September 2000 when he was complaining of pain in his right shoulder and AC joint and when seen, he had some joint pain with stiffness and restricted movement. There was restricted range of movement with some crepitus present.
The appellant changed doctors and went to Dr Reppas in November 2000. He told Dr Reppas that he had returned to work fulltime after two weeks off immediately following the accident. The history of the accident included having been struck by a 45kg pallet. Dr Reppas diagnosed soft tissue swelling and myofascial pain of the neck, back and right shoulder. He recommended continued physiotherapy, as did the orthopaedic surgeon to whom he referred the appellant, Dr Wallace.
Dr Reppas initially considered that the appellant would eventually recover from his injuries although this might take quite a long time (Blue 13). A subsequent report dated 27 September 2002 was more gloomy in its outlook. The doctor now felt that the appellant would not recover fully from his injuries. He definitely felt that the appellant would never return as a dogman-rigger although there was perhaps “more option as a crane operator with perhaps certain restrictions but more likely in an administrative role” (Blue 15).
The appellant was sent to Dr Sundaraj for pain management. He gave a history consistent with his evidence at trial, telling the doctor that there was no past history of head, neck, shoulder or back pain (Blue 19). Dr Sundaraj advised reduction in the medication intake, referred the appellant to a psychologist for pain behaviour assessment and carried out a series of nerve-block treatments. The appellant was given seven nerve-block injections and he said that these gave him relief, but only for a period of four to six weeks or so. Dr Sundaraj’s conclusion was (Blue 22):
He may continue to be disabled with intermittent pain disorder in the areas described earlier. With the passage of time, I do anticipate further improvement towards normality. He will be able to return to his usual occupation as a crane driver on a full time basis. There might be some restrictions at work. Lifting greater than 10 or 15 kilograms in his R hand would be the maximum. Periodically, he may develop exacerbation of head and neck pain and may require periodic physiotherapy. He is currently on Panadeine Forte about 4 tablets per day and in time he ought to come off this potent analgesics and perhaps be on Paracetamol as a preferred medication. There was a question of commencing him on anti-depressant medication for his altered mood. Mr Libreri is judicious with his medication intake and he is managing reasonably well, it might be best to avoid this for now or into the future.
The judge summarised the salient medical evidence in the following terms (Red 45-47):
First of all, even in the plaintiff’s own case, Dr Sundaraj, in his report of 13 March 2003, put forward a prognosis where he considered the plaintiff would return to his usual occupation but there could be an exacerbation of pain and discomfort requiring attention from time to time. I consider this accurately reflects the plaintiff’s history.
Dr Ellis has provided a number of medico-legal reports to the plaintiff’s side and his first report of 12 June 2002, under the heading “Impression”, recorded his opinion that the plaintiff had suffered musculo-ligamentous contusion and aggravation of degenerative change in the plaintiff’s neck and back and traumatic capsulitis of the right shoulder with secondary effects in both upper limbs and lower limbs. Continued supervision and conservative pain relief treatment would be required, but no surgical intervention.
In his report of 8 February 2005, Dr Ellis essentially maintained this opinion and expressed the view that the plaintiff was permanently unfit for physically demanding work requiring repeated bending and heavy lifting and it was unlikely that the plaintiff’s condition would improve. In his final report of 3 June 2005, having had the benefit of the results of a recent MRI examination, he concluded that there was internal disc disruption or desiccation affecting the C2/3 and C3/4 discs which was significant. The traumatic capsulitis of the right shoulder was confirmed by the findings of the ultrasonic scan.
A medico-legal expert, Dr Glancey, a Psychologist, was of the opinion that the plaintiff was suffering from episodic depression and this was connected with problems concerning pain. Dr Conrad, another medico-legal expert, in his final report of 10 June 2005, was of the opinion that the ultrasound of the right shoulder showed evidence of subacromial subdeltoid bursitis and this explained the plaintiff’s restriction of movement of the right shoulder.
For the defendant, Dr Basser expressed the opinion in his report of 16 July 2002 that the plaintiff’s symptoms could reasonably be attributed to local tissue injury and jarring of the neck and back, plus some headache. Dr Basser cautioned that an assessment depended upon what the plaintiff said and there was a lack of objective evidence of a continuing organic basis for the symptoms complained of. He did not alter this opinion.
Dr Bray considered on 12 August 2002 that the plaintiff was fit for driving a crane and did not need ongoing treatment. Essentially Dr Bray saw the plaintiff as a malingerer. Nevertheless, Dr Bray accepted that the ultrasound scan of the plaintiff’s right shoulder of 30 May 2005 demonstrated signs of subacromial bursitis. I accept therefore that the plaintiff has suffered the problem with the right shoulder, as Dr Ellis has opined, and the difficulties in the cervical region as set out in his report of 3 June 2005. Nevertheless, I consider the plaintiff has greatly exaggerated the effects these difficulties have had upon him. In terms of any difference of opinion between Dr Ellis and Dr Bray, I consider that Dr Bray has to a certain degree lost his objectivity. I consider Dr Lowy also has fallen into the same trap, in the sense that he appears to be criticising Dr Ellis in somewhat of a personal way rather than from the point of view of an objective expert.
Non-economic loss
At trial, the appellant submitted that he ought to be assessed at 35% of a most extreme case. The respondents, who were represented by single counsel, submitted that the appellant fell somewhere between 20%-30% of a most extreme case. Neither counsel suggested to the trial judge that there would be a different monetary bottom line under the different statutory schemes.
Judge Rolfe assessed the claim at 25%, indicating that he was taking into account his findings regarding the appellant being an exaggerator, but not a malingerer, and bearing in mind the matters in the medical reports to which he had earlier referred.
The reports had been tendered without any of the doctors being required for cross-examination.
The appellant gave evidence that prior to the accident he was a keen sportsman particularly in the areas of motor cycle racing, water skiing and snowboarding. He said that he was no longer able to do Enduro bike racing or water skiing.
The appellant’s wife gave evidence of a significant change in behaviour after the accident. She said that the appellant became very irritated and depressed when he was off work and that he was not very nice to be around at home. She noticed a little change for the better after he started taking the anti-depressant medication Zoloft. The appellant’s pain factor had interfered with his capacity to lift his children for any prolonged period (Black 104).
Another witness, Mr Didovic, also observed that the appellant seemed to be limited and restricted as to what activities he could do with his children (Black 91). He also saw a marked change in consequence of the accident. He had worked with the appellant and become his friend. He was thus able to attest to the incapacitating impact of the injury, particularly with reference to sporting interests the two men shared. He said that “over a period of time I watched him go through depression, totally lose the lifestyle that he was accustomed to living” (Black 90).
He gave the following evidence (Black 91):
Q.           Now after the accident occurred and a bit of time had passed did you notice anything about his demeanour, the way he looked and behaved?
A.           Absolutely everything had changed. The constant frowning, constantly complaining of pain, never leaving the house, always staying home, couldn’t get him involved in any sort of activities whatsoever because he just wasn’t capable. Wasn’t interested in going out, just, yeah.
Q.           Did you notice anything about the way in which he moved at times compared to before the accident?
A.           Yeah, he’d gone from somebody that was what I call an extremist to somebody that was very incapacitated and stiff, always sore, always visiting the doctors, constantly eating Panadeine Fortes like they were lollies. His whole personality, everything, changed.

As his Honour records, the appellant said that at the present time his right shoulder was very sore and tight and he had difficulties using his right hand. If he did something around the house using his right arm and shoulder, particularly if it involved pushing, he suffered a lot of pain. He said matters were getting worse. He said his neck and upper back area were very tight and stiff and that he had to be careful when turning. He was never pain free and the pain was getting worse.
The appellant was seeing Dr Sundaraj about once a year. His general practitioner had prescribed Zoloft and anti-depressants. He was taking Panadeine Forte for pain relief. He had had a lot of physiotherapy since the accident. This had been paid for by the workers’ compensation insurer until March 2005.
The judge accepted that the accident had prevented the appellant from being able to compete at a serious level in any of his sports. He was not however satisfied that the appellant was prevented from riding his bike or from water skiing for pleasure. The appellant is able to work and is in constant employment (see below).
Contrary to the appellant’s submissions, I am unable to gain any real insight into the level of non-economic loss from the mere fact that the appellant achieved a particular percentage of “whole person impairment” calculated in accordance with the WorkCover Guidelines (see Brown v Lewis [2006] NSWCA 87 at [20], [23]).
The appellant submits that the award for non-economic loss was appealably low given the medical evidence accepted by the judge and summarised above. His challenge did not, however, rise much above a request for this Court to make a fresh assessment. I am unpersuaded of appealable error.
There was a submission that the judge erred in his findings that the appellant had exaggerated his condition, a submission that I cannot accept. I also reject the written submission that the judge’s findings of non-economic loss were “tainted by his obvious dislike of the appellant”. There is no evidence to support such a proposition, which flirts with an allegation of bias without having the courage to embrace it.

Future economic loss

The appellant was born on 2 December 1970. He was a poor student who left school after obtaining his School Certificate. His reading and writing skills were described by himself as “very bad, very poor” (Black 3), a view confirmed in a vocational assessment report from CRS Australia (Blue 168). On leaving school he was apprenticed as a butcher but he did not do well at the college studies. After abandoning his apprenticeship he was employed as a truck driver for three years before obtaining work as a dogman and rigger.
A week after the accident the appellant returned to work on light duties. His employment with the first respondent continued until January 2002. He decided to qualify as a crane operator and trained for this purpose between April and June 2002 when he obtained his certificate. He obtained employment with FS Cranes, engaged to drive mobile cranes weighing about 20 tonnes. His new employer was told of his restrictions in terms of the work he could not do, in particular lifting timber, chains and setting up a crane. The employer was prepared to accommodate the appellant because there was a rigger who was prepared to assist with these tasks.
The appellant said that he did not enjoy this work because he felt claustrophobic sitting in the cabin. He preferred to work outdoors. He suffered a lot of discomfort in his shoulder while working as a crane driver. Nevertheless, he stayed with this firm until November 2004 when he left because FS Cranes relocated their yard. He then obtained employment with Uplift Cranes and was still in that position at the time of trial (July 2005).
The trial judge found that as a result of his injuries the appellant will not be able to work as a dogman and rigger, but will be able to work as a crane operator. He accepted that there could be a limitation on the appellant’s ability to drive bigger cranes (which generated higher earnings). His Honour also accepted that an allowance should be made for the fact that the appellant may not be able to work for the 31 years that would elapse before normal retirement age. Damages for future economic loss, including loss of future economic entitlements, were assessed at $75,000. This represented a future wage loss of approximately $100 per week for 31 years, with the usual 15% for vicissitudes.
The appellant’s principal complaint focussed upon the trial judge’s rejection of his claim to have damages assessed on the basis that he would, uninjured, have continued to work as a dogman and rigger and/or have progressed to driving larger cranes than those with which he could presently cope.
The judge did not explain how he arrived at a calculation for future economic loss beyond stating that:
… a prospective loss of $100 per week is a more likely scenario to found the basis of a cushion rather than $600 per week urged upon the Court by counsel for the plaintiff.
The parties had agreed on a past wage loss of $55,901. Allowing for the time off work while the appellant retrained as a crane operator, the figure translates (we were told) into a loss of approximately $250 per week (CA Tr p5). It was admittedly an agreed figure, but I see no reason why the Court should not unpick the mathematics lying behind it and infer, in the absence of evidence to the contrary, that it represented a reasonable assessment of the past actual loss.
The appellant said that he loved rigging work, “I loved being outside” (Black 6). Before the accident happened he had no interest in actually driving cranes (Black 16). He later said that his post-accident experience in driving cranes was “not good”. He felt claustrophobic being shut “in a little box all day” (Black 18).
As indicated, the judge accepted the appellant’s case that his injuries left him unable to work as a dogman and rigger. The appellant had responded by re-training as a crane operator and the evidence indicated that he was generally capable of doing this, as the judge found. There are, however, limitations in his capacity to maximise his earnings as a crane driver.
In the first place, the appellant is confined to operating smaller cranes. This finding in the appellant’s favour is sourced in evidence from the appellant and Mr Didovich. There was also evidence that people working on larger cranes were paid more because of “height money” and other more generous hourly rates dependent on the greater tonnage of large cranes (Black 65, 88).
Secondly, the appellant is potentially hampered by his continuing disability and the pain it produces. This has rendered him a somewhat grumpy employee (as Mr Farrier attested). Dr Ellis also reported that the appellant would be disadvantaged significantly if he were involved in physically demanding work (Blue 31) and that deterioration will occur in the neck and back and right shoulder over the years (Blue 35). The appellant’s inability to help as a dogman and rigger is also a disadvantage (see below).
Consistent with the primary case that the appellant wanted to remain a rigger, counsel at trial endeavoured to lead evidence from the appellant as to what a rigger doing a high job with a big crane could expect to earn. The question was rejected, presumably on the basis that the appellant was not shown to have direct knowledge of this matter (Black 26-7). All that was elicited from the appellant was information as to his own earnings as a rigger prior to the accident. The appellant said that when he was rigging about five to six years before his testimony (given in July 2005), and thus in the year preceding the accident, he was making $1,500-$2,000 a week, apparently as take-home pay (Black 27). But under cross-examination he conceded that this did not occur every week of the year. This led to some exploration of the appellant’s taxable income as per his income tax returns. These showed the following information:
Year ended  Taxable income
30 June 2000  $52,646
30 June 2001  $37, 832
30 June 2002  $45,237
30 June 2003  $50,107
These were the figures which were relevant to the pre-trial assessment of loss, being from the accident in June 2000 until June 2005. For this period, no reasoned explanation was given by his Honour for the calculation of past economic loss, because the figure was agreed. Nevertheless an assessment of pre-accident earning capacity is undoubtedly relevant in the calculation of future economic loss. The difficulty in making that assessment is that the year ending June 2000, which appears to have been the year in which he said he was earning $1,000-$1,500 per week, was the year preceding the Sydney Olympic Games, when he stated he was working on “the Australian Stadium”. In the year before that, being the year ending June 1999, he broke his leg and suffered a significant reduction in earnings. His taxable income in that year was $47,000, giving a net figure of about $34,000. The previous year, ending 30 June 1998, his taxable income was $57,415.
On these figures, even in the years ending 2002 and 2003, his net income was, on average, about $5,000 below that earned in 1998 and 2000. However, his group certificate for the year ending 30 June 2004 indicated gross payments of $74,618. Assuming deductions in the order of $15,000, which would have been in line with previous years, he would have had a taxable income in the vicinity of $60,000.
The appellant called the proprietor of FS Cranes, Mr Farrier. This was the firm that had employed him between June 2002 and November 2004. Mr Farrier confirmed that he was aware from the outset that the appellant had a disability stemming from the instant workplace injury. He was told that this affected his capacity to lift and climb. Mr Farrier described work as a crane driver as
… a sort of multi-tasked job, the same as a dogman. Probably obviously when we’re sitting down operating, he would be expected to get out and sometimes give the dogman a hand, if there was a bit of push or shove needed on the job, like placing timbers under a load or positioning a load or getting a load prepared to be lifted with the lifting chains or timbers or packers up to the different points on the load.
Mr Farrier had been happy to employ the appellant whom he described as a very good crane operator. He said that the appellant had left his employ by mutual agreement and that he would be prepared to take the appellant back “with a little bit of reservation” (Black 66). He offered two bases for this reservation. The first related to the limitations disclosed prior to employment. These “mucked us up a little bit” (Black 62). Secondly, there were times when the appellant’s demeanour changed and he became “aggro or short”, something that Mr Farrier put down to the appellant being in pain (Black 63). Other evidence from the appellant, his wife and Mr Didovich, confirmed that the pain and frustration stemming from the injuries had affected the appellant’s ability to cope.
What emerged from Mr Farrier’s evidence is that the appellant’s skill as an operator of smaller cranes is offset to a degree by some touchiness or unreliability that could affect customer relations (Black 63P); and that his incapacity to switch to the dogman/rigger role was something of a disadvantage. It was Mr Farrier’s practice to pay his rigger/dogman the same rate as his crane operators because (Black 64-5):
I expect to be able to interchange, I try and employ people now that can do both jobs. It’s no good me having a driver that can’t dog or a dogman who can’t drive.
The trial judge did not refer to Mr Farrier’s evidence as regards economic loss.
Mr Didovich had worked as a crane driver or rigger for approximately 20 years. He started off “like most people in the smaller range of equipment but I showed quite a talent and was soon moved up into a higher bigger crane area” (Black 85). For the last ten years he had been driving large cranes.
Mr Didovich said that the rate of pay varied with the size of the crane given that there were extra responsibilities involved with bigger machines (Black 87). Asked how the rate of pay of a rigger compared to that of a driver, he said (Black 88):
The new EVA agreement that’s in the industry, drivers and dogman are paid on their skill level and on their experience and their years in the industry. They can be on par if you have a good crane crew which is ample experience with the driver’s rate of pay.
Mr Didovich gave evidence on 20 July 2005. He said that in the “last financial year” he “did 124,000 before tax”. He later agreed that there were substantial expenses to be deducted (Black 96). Extrapolation from these figures produced the $600 net per week suggested at trial as the upper limit of the appellant’s possible loss.
Mr Didovich said that in the year to 30 June 2005 he averaged 60-70 hours a week, a figure that included a huge amount of overtime.
What his Honour said on this topic was (Red 51):
I do not accept that there is a valid comparison between the plaintiff and Mr Didovich because Mr Didovich has worked much longer hours and there is no evidence that the plaintiff worked such hours on a regular basis before the accident. Secondly, the plaintiff’s income tax returns, which are in evidence and which I have referred to above, demonstrate to my mind that the plaintiff has not suffered the losses urged upon the Court by his counsel, but it was agreed by the defendant that the plaintiff had suffered a loss.
The appellant pressed the following grounds of appeal on this topic:
5.The trial judge’s findings on future economic loss were manifestly inadequate.
9.The trial judge erred in finding that the appellant would not have worked the hours of overtime of the comparable worker when the appellant’s evidence was that he would have worked such hours and the proven facts were that he was actually working such hours at the time of trial.
10.That the trial judge erred in finding that the hours of overtime worked by the appellant prior to the accident were determinative of the overtime he would have worked following the accident when such was proven not to be the case.
I read ground 5 as asserting inadequacy of reasons.
The appellant submits that the judge erred in giving such significance to the pre-accident working hours and income. It was always likely that the appellant would mature, marry and start a family (as occurred after the accident). Financial problems had been a cause of stress within the marriage. Accordingly it was probable that he would, uninjured, have endeavoured to maximise his earnings, aspiring to the longer hours and better paid work of a large crane driver similar to Mr Didovich.
I agree with this criticism of his Honour’s reasoning. The appellant may not necessarily have risen to Mr Didovich’s heights of earning capacity. But it was erroneous to reject any comparison on the basis of the appellant’s pre-accident work pattern or his post-accident tax returns.
The appellant was aged 29 when injured and had only been working with cranes for seven years. Mr Didovich had been a crane driver for almost 20 years. I would accept the appellant’s submission that it was probable that, uninjured, he would have moved towards the type and hours of work engaged in by Mr Didovich. The assessment of both Mr Farrier and Mr Didovich was that the appellant was skilled at his job as a crane driver.
The evidence showed that the appellant’s incapacity to work as a rigger/dogman impacted negatively upon his capacity both to obtain and retain employment as a driver of smaller cranes as well as his capacity to obtain employment as a driver of large cranes. Notwithstanding the appellant’s assertion that he wanted to stay as a rigger/dogman, I think it probable that, uninjured, he would have sought to follow Mr Didovich’s career path as he grew older. It was not suggested that his feeling of claustrophobia was a serious medical problem. Since the accident the appellant has married and has commenced a family, a development that must always have been reasonably likely to occur. I accept the submission of Ms Norton SC that financial pressures alone would have moved the appellant to seek the higher remuneration (and available overtime) associated with the type of work that Mr Didovich was doing.
The appellant therefore contends for lost earnings to be calculated by reference to a weekly loss somewhere between the $250 per week of average pre-trial loss and $600 per week being earned by Mr Didovich in 2005. He submits, correctly, that merely because his earnings increased after the accident does not negate a finding of substantial loss of future earning capacity based on even higher earnings that would have occurred but for the tort.
The higher end of the range should be discounted significantly because of the greater experience of Mr Didovich. In addition, some allowance must be made for the trial judge’s finding that the appellant exaggerated his disabilities. On the other hand, his Honour accepted not only “a limitation on the plaintiff’s ability to drive bigger cranes (and therefore not earn as much)” but also that “an allowance ought be made for the fact that the plaintiff may not be able to work for 31 years”.
These matters point to two factors indicative of a widening gap between what the appellant would have earned uninjured and what he will be capable of earning in the future.
First, there is the likely deterioration in the condition of the neck, back and right shoulder over the years, according to Dr Ellis’ prognosis (above). This points to a cloud over the appellant’s ability to continue his current (post-accident) working regime over the balance of a “normal” working life for a man aged almost 35 at the date of judgment in the court below.
Secondly, allowance should be made for the fact that, had he not been injured, the appellant would (over time) have edged towards the higher earning league of Mr Didovich. Mr Didovich is not a comparable earner at present, but it is fallacious to make no allowance in light of his evidence about the higher earnings of the more experienced crane operator and the evidence about the appellant’s general aptitude, pre-accident.
These two matters are appropriately addressed by increasing the weekly loss component beyond the level adopted by the primary judge for past economic loss. I propose doing this by calculating further economic loss and attendant superannuation by reference to a flat weekly figure of $350 per week representing loss of earning capacity. In adopting this comparatively conservative figure I am recognising, among other things, that the anticipated movement into a higher earning range would have occurred in the future and progressively, not all at once.
Taking these factors into account I would vary the judge’s award for future economic loss and attendant superannuation loss by calculating the award in the conventional manner based on a loss of $350 per week instead of $100 per week chosen by the judge. I do not overlook the respondent’s request for a new trial and I acknowledge that the level of the increased award is struck impressionistically. This is inevitable given that we are dealing with a hypothetical situation in which the Court is struggling to measure the economic impact in the future of the accident-induced deficit upon a young man able to work full time, yet at a level significantly below his maximum earning capacity. There is also the likelihood of increasing disability as the years go by.
The parties requested the Court to defer entry of judgment if minded to uphold the appeal. Calculations would in that event be required having regard to the terms of s151Z of the Workers Compensation Act 1987 and s19 of the Civil Liability Act 2002 and the need to apply the appropriate section depending on the outcome of the appeal. Mr King SC and Mr M Robinson together represented all three respondents. I am content to accede to this request.

Costs should follow the event in this Court, although the respondent is entitled, if qualified, to a certificate under the Suitors’ Fund Act 1951.
I therefore propose that the parties be directed to file draft orders to give effect to these reasons. An agreed draft should be filed within 7 days, failing which each party is to file, within a further 7 days, its proposed orders accompanied by submissions as to the points of difference. The matter will be disposed of on the papers if the Court considers it appropriate to do so.
BEAZLEY JA: I agree with Mason P.
BASTEN JA: I agree with all aspects of the President’s reasons for judgment other than the adoption of an award based on a loss of $350 per week: [71] above. That constitutes approximately 35% of the Appellant’s net earnings at the time of trial. The evidence does not demonstrate, in my view, a likely diminution of earning capacity at that level. I would have favoured a calculation based on a figure of $250 per week. The matter is, however, largely one of impression and as this is a minority view, no detailed explanation for that conclusion is necessary.

**********

LAST UPDATED: 28/09/2006