Mayne Nickless Ltd Trading as Sea Pak Transport Services v Watson
[1989] TASSC 40
•25 August 1989
Serial No 36/1989
List "A"
CITATION: Mayne Nickless Ltd trading as Sea Pak Transport Services v Watson [1989] TASSC 40; A36/1989
PARTIES: MAYNE NICKLESS LTD
trading as SEA PAK TRANSPORT SERVICES
v
WATSON
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 56/1988
DELIVERED ON: 25 August 1989
DELIVERED AT: Hobart
JUDGMENT OF: NEASEY, NETTLEFOLD AND CRAWFORD JJ
CATCHWORDS:
Judgment Number: A36/1989
Number of paragraphs: 53
Serial No 36/1989
List "A"
File No FCA 56/1988
MAYNE NICKLESS LTD trading as
SEA PAK TRANSPORT SERVICES v WATSON
REASONS FOR JUDGMENT FULL COURT
NEASEY J
NETTLEFOLD J
CRAWFORD J
25 August 1989
Order of the Court:
Appeal dismissed.
Serial No 36/1989
List "A"
File No FCA 56/1988
MAYNE NICKLESS LTD trading as
SEA PAK TRANSPORT SERVICES v WATSON
REASONS FOR JUDGMENT FULL COURT
NEASEY J
25 August 1989
The respondent was awarded a total of $106,382.24 damages for injuries caused to his right hand in an industrial accident which occurred on 6 May 1980. The case did not come to trial until November 1987. The award was made up of the following components –
1 Pain, suffering and loss of amenities of life 21,000.00 2 Lost earning capacity 95,000.00 95,000.00 $116,00.00 3 Add Agreed special damages 675.41 $116,675.41 4 Less compensation paid to the plaintiff 10,293.17 Total
$106,382.24
The three grounds of appeal are that the trial judge (Wright J) erred in allowing the sum of $21,000.00 for pain, suffering and loss of amenities of life, in that such sum was wholly excessive on the evidence; that his Honour erred in allowing the sum of $95,000.00 for lost earning capacity, that sum being wholly excessive; and that the trial judge erred in failing to find that the plaintiff was guilty of contributory negligence. I shall deal with the third ground first.
The plaintiff, aged 33 years at the time of the accident, was employed by the appellant transport company as a fork–lift truck driver in one of their transport depots, in tasks of loading and unloading containers which are used with semi–trailers, and in helping to set up these containers when necessary. The containers, according to the evidence, are kept stacked in their component parts until they are required to be set up by fitting the appropriate parts together. The learned trial judge in his reasons for judgment did not set out the measurements of such a container as was in use at the time of the accident, but from some evidence from the plaintiff (whose evidence his Honour evidently accepted as to the circumstances of the accident), and from the appearance shown in photographs tendered in evidence by consent, it would appear that the steel containers were of a rectangular shape about 18 feet long by approximately 8 feet wide. (It is not critical to know the exact measurements). They were first put together by rectangular end pieces which appear from the photographs to be about 6 feet or so in height being lifted into position by a fork–lift truck and dropped into place, and then the long side pieces being fitted in a similar way.
The lifting and placing was done by a heavy fork–lift truck operated by its driver, with the help of an assistant who helped manually to guide the upright pieces into position, with the aid of a crowbar and sledge hammer where necessary. The fork–lift driver on this occasion was a Mr Witzerman, deceased since the accident. He had a regular offsider, but on the present occasion he was absent, and the respondent was told by a supervisor to take his place. He did so, and the uprights were placed in position. However, it was common practice to extend the height of the containers by fitting additional end and side pieces which appear to have been about three feet in height, and would therefore consist of two end pieces approximately eight feet long by three feet high, and two side pieces approximately eighteen feet long by three feet high. Again, it was the practice to lift these pieces into position and fit them by lugs into sockets in a Meccano–like operation. The end pieces were fitted first, and then the side pieces. The side pieces were of steel pipe construction, the pipes being about 2½" in diameter, welded together and braced. At the ends of each side piece there were steel lugs which fitted into sockets at the corner posts of the end pieces. The practice was to lift these side pieces using the tines of the heavy fork–lift truck positioned under the top rail, fit the lugs at one end, and then bullock the other end into position. This latter was the operation which the respondent was assisting in when the accident occurred. When one end of the long narrow side pieces fitted, the piece became a sort of long swinging gate which had to be lifted and jockeyed so that the lugs at the swinging end were fitted into the sockets there. This latter job was ordinarily very difficult, and particularly difficult on the occasion in question. The reason was that all the component pieces, including the long swinging side pieces, were from continual rough usage in the trade often struck by other objects around the wharves and run over by heavy fork–lift trucks in the depots. Therefore they had to be manhandled by force into position by use of the tines of the fork–lifts, and other such means, according to the evidence, because of their commonly badly bent, buckled and warped condition.
This was the situation on the occasion in question. When the end of the gate was swung to, the lugs on the end were more than a foot out of position for fitting into the sockets. The respondent was assisting by holding with both hands the bottom rail of the gate, and ready to assist with the sledge hammer when it was called for. Mr Witzerman (who had been joined as a second defendant) made several attempts to force the gate into position by using the tines of the fork–lift. Being unsuccessful, he manoeuvred the tines so that one was withdrawn from under the rail, while the other tine precariously supported it by a few inches on the end of the tine, the other tine being used to exert inward pressure against one of the uprights of the gate. This manoeuvre was still unsuccessful by many inches, and then, according to the plaintiff's evidence, which the judge accepted, Witzerman without warning withdrew the remaining tine from under the rail, thus allowing the gate towards the right hand end to drop, jamming the area at the base of the plaintiff's right thumb against the top of the lower component, causing serious injury to the hand.
The appellant does not quarrel with the finding that it was negligent, but it argued that it should have been found that the respondent was guilty of contributory negligence. The learned trial judge, in his lengthy and carefully considered written reasons for judgment, examined this proposition and found against it. I agree entirely with his review of the matter, and with the conclusion he reached. This was an obviously crude and dangerous operation, although the evidence was that it was a method of putting containers together which was widely used in that area of the transport industry. There was no particular danger for the fork–lift driver but it was clearly dangerous for a person in the respondent's position to have to give manual assistance where his unprotected hands and arms would be at risk from any sudden removal of support from the swinging end of the heavy gate. The evidence was that the tines of the fork–lift had to be kept exactly level, a difficult feat, to prevent the gate sliding forwards or backwards, and when that situation was compounded by the requirement of such an obviously dangerous manoeuvre as Mr Witzerman was trying to carry out, with one tine precariously supporting the weight of the gate and the other one exerting pressure against an upright of the gate, to such an extent that the wheels of the truck began to spin, the possibility of a mishap was only too apparent. Then when the fork–lift driver withdrew the support without warning, the injury was caused. The driver's removal of support without warning was obviously negligent, although it might well have been largely brought about by the difficulty and frustration of what he was trying to do.
The appellant argued that the obvious danger of the respondent's position was such that he should have realised it himself and should have withdrawn out of harm's way. That argument is not persuasive. According to the evidence, the job was being performed in the usual manner. Witzerman was in charge of that section of the work, and the respondent was told to assist him. The respondent himself did not realise that he was in danger according to his evidence. This was a misjudgment on his part, but he was on the evidence performing in a way which was commonplace and apparently expected and never warned against in that area of employment. As the High Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873 said:
"The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task."
See also, McLean v Tedman & Anor (1984) 58 ALJR 541 at pp543–4. In my view the trial judge was quite right in finding that the employee did not contribute to the accident by his own negligence.
I turn to the question of damages. The plaintiff suffered a deep wound in the cleft between the thumb and forefinger of the right hand. The surgeon who treated him described it as a very substantial crush injury, and the joint was fractured. The surgeon said in effect that it was very fortunate that the thumb had not been chopped off, since the injury involved bone, nerve, muscle and joint, sparing only the tendons. The respondent has suffered continuing substantial pain in the area, as the judge accepted, and there are many activities he cannot engage in with the hand for any length of time without pain sufficient to cause him to desist. Some three years after the accident the affected joint was arthrodesed, grip strength has been reduced in the hand, and continuation of such an activity as driving a motor vehicle for any period of time over about forty minutes produces pain. So does writing for any extended period, or any activity which requires a grip to be exerted. After the original injury, the respondent was in hospital for three days, during which time the wound was debrided and a small amount of dead muscle and peripheral skin edges removed, and thereafter the hand was in a plaster cast for approximately two to three months. After that, he had rehabilitation treatment but continued to experience pain and a "horrible clicking feeling" in the area which eventually moved him to have the arthrodesis operation. This removed the clicking but did not prevent continuing pain. The learned trial judge thought that the respondent's evidence as to his pain and disability "whilst basically truthful, was exaggerated or overstated to some degree." But his Honour said:
"I accept that the [respondent] has a right hand which in a mechanical sense has a disability of the order of 15 – 20%. I accept that the hand is frequently uncomfortable and often painful and from time to time it is a source of severe pain if knocked, subjected to extremes of temperature or overworked by repetitive or protracted use in many activities."
The trial judge also accepted the respondent's complaint that the respondent has been affected by sexual impotence caused by the psychological effects of the accident, but that this is unlikely to be a permanent problem. His Honour awarded $21,000.00 for pain, suffering and loss of amenities of life, and I think that while this award was probably towards the upper limit properly allowable, it cannot be said to be excessive to any extent which warrants disturbance of it.
The appellant's other attack on a component of the damages award was against the sum of $95,000.00 awarded for damages for loss of earning capacity. The respondent has had a varied employment record during the period since the accident happened. He has tried many jobs without being able to continue any of them for any length of time due to pain and discomfort in the hand. He is apparently an intelligent person and has since leaving school acquired a higher school certificate, but his areas of employment have been principally in semi–skilled occupations such as truck driving and that in which he was engaged at the time of this accident. The learned trial judge said of the residual injury that:
"It is a significant disability for a young man of the plaintiff's age seeking to obtain and retain employment in the unskilled or semi–skilled areas in which he has experience. Whilst it cannot be said that his employment with the defendant company was necessarily a long term commitment on his part or, indeed, on theirs at the time he sustained the injury, he did have a good record of fairly continuous employment alternating with academic study prior to that time. Since then, his employment has been considerably more intermittent and I think it is fair to say that he is now more limited in the type of employment which he can accept and keep. I think that heavy duty truck driving is probably not a realistic option but that driving light commercial vehicles and taxis is within his capabilities. He therefore has some limitations upon his employability and he is at a disadvantage in the labour market. However, the [respondent] is an intelligent young man who still has many employment avenues open to him. He has shown a considerable capacity for adaptation in the past and I have no doubt that he will be able to use this facility to his advantage in the future. Nevertheless, he has suffered an invasion of his bodily integrity and has quite clearly been distressed by his experience. His residual disability though not immediately apparent to a prospective employer may well place any position which he secures involving sustained use of the hand at risk. If he manages to keep such employment he will do so at the cost of a not insubstantial amount of pain."
A factor not to be overlooked in reviewing his Honour's assessment of damages for lost earning capacity is that no separate award was able to be made for lost earnings up to the time of trial, which as indicated earlier took place more than seven years after the accident occurred. Some figures, the arithmetic of which was admitted, were produced to the trial judge showing that had the respondent continued in the employment he had at the time of the accident he would have suffered a net loss of wages of $41,242.00 up to the time of trial, but there were difficulties in the way of accepting that figure as the actual loss, due, as I understand, to a doubt whether his then position could be regarded as likely to be of a permanent or semi–permanent character; and due also to the fact that since the accident and before trial he had been involved in a motor accident which had caused him some disability and which would in any event have kept him off work for an unspecified period of time. These were among reasons which his Honour said made it inappropriate for him to assess specific damages up to time of trial and then award a sum for future economic loss, which is the more usual course. However, it is obvious that in the seven years between the accident and trial the respondent, had the accident not occurred, would have been likely to earn a very substantial total sum, which might have been quantified, it would appear, at somewhere between $30,000.00 and $40,000.00. The respondent according to his Honour's findings was 33 at the time of trial, and therefore in the ordinary course could expect a working life of upwards of 32 years until retirement. Allowing for contingencies and the like, a multiplier of say 25 years might well have been adopted, and bearing that in mind it is not difficult to see that an assumed yearly loss of earnings of a relatively low figure would have produced at the ruling rate of interest a sum in excess of $60,000.00. I do not think, therefore, that his Honour's award of $95,000.00 can be considered as excessive to an extent which warrants interference by this court; if indeed, it is excessive at all. I would dismiss the appeal.
File No FCA 56/1988
MAYNE NICKLESS LTD trading as
SEA PAK TRANSPORT SERVICES v WATSON
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
25 August 1989
I have studied the reasons for judgment of Neasey J I agree with them.
File No FCA 56/1988
MAYNE NICKLESS LTD trading as
SEA PAK TRANSPORT SERVICES v WATSON
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
25 August 1989
This appeal is against damages awarded for pain, suffering and loss of amenities of life, and for lost earning capacity. It is also against the dismissal of the appellant's claim that the respondent was contributorily negligent, but the finding against the appellant of liability based on negligence is not disputed. There are three grounds of appeal and I will deal with them out of order for the purpose of disposing of the contributory negligence question first.
Ground 3
This ground is:—
"That the learned Trial Judge erred in dismissing the Defendant's claim that the Plaintiff was contributorily negligent."
Summaries of the facts appear in the reasons for judgment of the trial judge and Neasey J Wright J found that the appellant was liable on the basis of an unsafe system of work. Vicarious liability was also found, based on the negligence of the respondent's fellow employee, Mr Witzerman, in failing to warn the respondent before he reversed the fork lift truck and thereby released the force being applied by the truck to the gate. His Honour found that Mr Witzerman would or should have been aware that the respondent was gripping the bottom rail of the gate and should also have been aware that to suddenly release the pressure on the gate without warning the respondent, was likely to cause the gate to drop or lurch in such a way that the respondent might be injured in some way. The particulars of the alleged contributory negligence were pleaded as follows:—
"(a) Pushed the extension gate off the tynes of the forklift truck being operated by the second named defendant" (Mr Witzerman).
"(b) Kept hold of the extension gate when the second named Defendant was attempting to manoeuvre the gate into position on the container.
(c) Failed to keep clear of the extension gate when the Plaintiff knew or reasonably should have known that he was in an area of potential danger.
(d) Failed to advise the second named Defendant that the extension gate was precariously placed on the tyne of the fork lift truck."
Wright J rejected the claim of contributory negligence in the following terms:—
"The defendant concedes that if Mr Witzerman was negligent, the defendant attracts vicarious liability. However, it is argued that the plaintiff was also guilty of contributory negligence. I do not think he was. He appears to me to have been attempting to carry out this difficult and frustrating task in the way that it was generally performed by the off–sider working in his position. It is trite law that mere inadvertence, inattention or misjudgment by a workman does not amount to contributory negligence (eg McLean v Tedman (supra)). There is no evidence to suggest that the plaintiff was ever warned against putting his hands on the bottom rail in the way that he did or that he should have been aware of the likelihood or possibility of a serious injury of the kind which he sustained. Nor do I think he failed to take proper precautions for his own safety in any other respect. The defendant alleged (inter alia) that the plaintiff had pushed the gate off the tynes of the fork lift truck but this allegation was not supported by the evidence and I reject it. It was put to him that he should have suggested to Mr Witzerman that he was unlikely to force the gate into place by the method he was adopting but I am satisfied that Mr Witzerman was a dogged if not stubborn individual considerably older than the plaintiff who was quite unlikely to adopt alternative methods which the plaintiff may have recommended. It is also plain that even if common sense should have told the plaintiff that what he was doing was dangerous (and I am not persuaded that it should) it would be necessary for the defendant to succeed in its allegation of contributory negligence, to show that the plaintiff also appreciated that what he was doing at the relevant time was not required of him in the performance of his duties. (Commissioner for Railways v Halley (1978) 20 ALR 409 at 415 per Jacobs J) This has not been established by the defendant. I hold that the defendant was negligent and that it has not been shown that the plaintiff was contributorily negligent. I now proceed to assess damages."
Having read the transcript of the evidence I agree with his Honour's findings of fact in the quoted paragraph. Wright J said earlier that although the respondent was an experienced fork truck driver himself, Mr Witzerman was the senior man, in charge of the operation and in control of the fork truck. The appellant's argument was that the respondent was not working under the direction of Mr Witzerman, that Mr Witzerman was not superior and that the respondent voluntarily assisted with the operation. The evidence does not support this argument at all.
The respondent's evidence, and there was no evidence to the contrary, was that a supervisor told him that he had to help Mr Witzerman set up containers and he complied. His evidence was that Mr Witzerman was in charge of setting up containers in the particular yard, that the respondent had no part in the decision making process as to what method was adopted, that it was accepted work practice that the fork truck driver was in charge and that it was up to the driver to tell the offsider where to stand and to let him know what the driver was doing. The only other witness on the subject was Mr J C. Davey, operations manager of the appellant, and the following evidence was obtained from him:—
"QAnd it's normal ...to have an assistant?
AYes it is.
QYes. And I take it or suggest to you that when – you're the assistant, its the fork lift truck driver who is in charge of the operation?
ATo a certain extent yes. Why I say that it's up to the assistant to try and line those holes up with the fork lift truck driver.
QYes, but where the fork lift goes and how long it tries and those sort of things are within the province of the fork lift driver and the fork lift driver would direct the assistant as to where the assistant should be if he thought he was in the wrong place rather than the other way around?
AYes."
Mr Davey's evidence also revealed that Mr Witzerman had far more experience in setting up containers and driving fork trucks than the respondent, although the experience of the respondent was substantial.
Counsel for the appellant argued particularly that the respondent should not have kept hold of the bottom rail of the gate but instead should have kept clear of the gate, because he knew that he was in a dangerous position. However the only evidence relating to these matters was given by the respondent and it did not support the argument. He said that he was holding the bottom rail while the fork truck pushed against the gate for the purpose of straightening it. He had previously seen such a procedure succeed. He was holding the rail with a firm grip to prevent the gate jumping up or down so that the pins at the right hand end would not come out of their lugs and so that he could put the left hand pins into their lugs when they came close enough. He was not concerned for his own safety because "I had done it many times before" in circumstances where the same kind of force had to be applied to a gate by a fork truck. "I was still holding the gate, if I had moved away it would have popped out from the other end. It's up to Mr Witzerman to tell me when to move . . . I can recollect being there to make sure it didn't move up down on that point, having seen it happen many times before".
The respondent also attested that he had worked with a lot of fork truck drivers and had always been given a warning when the fork truck moved. He said:– "You're always told if there's going to be any movement in The fork truck, you are told to get out of the way". He had been told by Mr Witzerman on other occasions when the truck was moving back but not on this occasion. He admitted that on this occasion of setting up this particular container, Mr Witzerman had not warned him when he was watching Mr Witzerman and could see what the latter was doing, but at the very moment of the accident he was watching the left side of the gate in case the pins might go into the lugs and he was still not warned. His evidence was also that Mr Witzerman could have seen that he had his back to him. Finally on this subject, he said that the system they were using had been used on many prier occasions.
The evidence established that the work method was commonly used. There was no evidence that the respondent was instructed or warned that a different method should have been used, nor that there was something he should have done for his own safety which he failed to do. Nor was there any evidence that the respondent appreciated any risk to himself.
The question remains whether the respondent ought to have appreciated the danger. The appellant's case is that the respondent's experience of problems arising from such operations should have caused him to realise this and that the system used was an inherently risky practice. But I can find nothing to satisfy me that this is made out by the evidence.
Counsel referred to statements made by the High Court in McLean v Tedman (1984) 56 ALR 359 to the effect that inadvertence or inattention which has resulted from familiarity and repetition or preoccupation with matters in hand and the need for concentration upon those matters, does not amount to contributory negligence. See also Commissioner for Railways v Ruprecht (1979) 25 ALR 481; 142 CLR 563; Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 531. I am doubtful that such considerations arise in this case. If they do, they are in the respondent's favour. but the evidence was that he was engaged in a work practice in a situation where he expected, and on the evidence reasonably so, to be warned by Mr Witzerman of the latter's intention to move the fork truck. At the time of the accident the respondent was looking at the pins and lugs to his left, which was something his duties required him to do. He could not be looking to his right at Mr Witzerman at the same time and he could not be expected to watch Mr Witzerman all the time and not the job which literally he had in hand.
There was no evidence establishing that the respondent should have perceived that he was in a position of danger. He had been involved in the same system of work on many prior occasions. It was the practice for fork truck drivers to warn the assistant before moving the fork truck. The evidence shows that the system required him to hold on to the gate. On the basis of such facts it cannot be said that he ought to have appreciated the danger and done something about it.
If he should have appreciated the danger then all he could have done was let go the gate, in fact not hold it at all while the fork truck was pushing it. But his evidence established without contradictory evidence, that the system of work required him to hold it and that is an end of the argument. As was said by Jacobs J in Commissioner for Railways v Halley (1978) 20 ALR 409 at 415:—
"But it needs to be stated before going further to the facts of the case that a finding that the respondent knew or ought to have known that what he was doing was highly dangerous does not necessarily establish that he was guilty of a lack of reasonable care for his own safety in the circumstances of his employment. It would also need to be established by the appellant that the respondent knew or ought to have known that what he did, even though it was highly dangerous, was not required of him in the performance of his duties."
Paragraph (a) in the Particulars of Contributory Negligence has no support Prom the evidence which established that the gate dropped, not because the respondent pushed it off the tynes, but because Mr Witzerman moved the fork truck. Paragraphs (b) and (c) were not established by the evidence for the reasons I have explained. Particular (d) was established by the evidence in the sense that the respondent did not warn Mr Witzerman that the gate was precariously placed on the tyne of the fork truck, but contributory negligence was not made out as a result. On the balance of probabilities it should be inferred that Mr Witzerman was aware of the position but, notwithstanding that, he chose to endeavour to straighten the gate in the way he did.
The appeal on the question of contributory negligence should therefore be dismissed.
Ground 1
"That the Learned Trial Judge erred in allowing the sum of $21,000 for pain, suffering and loss of amenities of life in that such sum was wholly excessive on the evidence."
The judgment appealed from awarded the respondent damages of $106,382.24. In the reasons for judgment his Honour examined separately heads of damage and made his assessment as follows:—
Pain suffering and loss of
Amenities of life $21,000.00Lost earning capacity $95,000.00
Agreed special damages 675.41
$116,675.41
Less workers' compensation
paid to the respondent $ 10,293.17$106,382.24
The principles to be applied by an appellate court when considering an appeal on damages from a judge sitting without a jury are:—
"Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v Lovell [1935] 1 KB 354 at p360. In effect the court, before it interferes with an award of damages should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for those or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency." Davies v Powell Duffryn Associated Collieries Ltd. [1942] AC 601 per Lord Wright at 616–7, cited with apparent approval by Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 at 195–6 and by Gibbs J in Gamser v The Nominal Defendant (1977) 136 CLR 145 at 148.
To this statement of principle should be added:—
"... the largeness or smallness of the amount awarded is not by itself a sufficient reason for being so satisfied unless it is so extreme as to convince the appellate court that the assessment is erroneous to the point of actual unsoundness." Minchin v Public Curator of Queensland [1965] ALR 91 at 96 per Kitto J.
The ground of appeal does not attack any particular finding of fact by Wright J It is the amount of $21,000 awarded for pain, suffering and loss of amenities of life which is attacked. The accident occurred on 6 May 1980 when the respondent was aged 25 years. The injury consisted of a deep wound through the first interdigital cleft between the right thumb and forefinger. Surgery was initially carried out. Because of the respondent's complaints of pain and difficulty in carrying out many tasks, an arthrodesis of the joint at the base of the thumb was performed by his surgeon, Mr Carney, on 19 October 1983. Mr Carney found in January 1985, the overall disability in the thumb to be 30 per cent which represented a diminished hand function of some 15 per cent. Mr Law, a surgeon called by the appellant, assessed the disability at 40 to 50 per cent of the thumb and 22 per cent of the hand. The arthrodesis has produced 10 degrees of fixed flexion of the base of the thumb to approximately its normal working position. The respondent is right handed. Wright J found that the plaintiff now has a right hand which, in a mechanical sense, has a disability in the order of 15 to 20 per cent.
His Honour accepted that the hand is frequently uncomfortable and often painful and from time to time it is a source of severe pain if knocked, subjected to extremes of temperature or overworked by repetitive or protracted use in many activities. Heavy duty truck driving is probably not a realistic option but he is capable of driving light commercial vehicles and taxis. His Honour considered evidence of Mr Carney, Mr Law, an occupational therapist (Mrs Fish) and also evidence in the form of films taken of the respondent performing certain activities in 1982. He "felt a certain level of uneasiness myself in putting the plaintiff's complaints of pain alongside bis admitted degree of activity in such things as carpentry and joinery, house painting and playing lawn bowls". He found himself "left with the overall impression that the plaintiff's normal dexterity is not significantly impaired and that he has been able to adapt to his injury to a greater extent than he is prepared to concede".
I will not deal further with the complaints of the respondent concerning his hand disability. They are detailed in the reasons for judgment of Wright J The respondent alleged that he has suffered psychological damage resulting in sexual impotence, involving an inability to have intercourse with a partner, although the evidence showed he was able to masturbate satisfactorily. His Honour said:
"This was a claim supported by the evidence of Dr Burgess Watson, a psychiatrist, who found the plaintiff's complaint both convincing and explicable in terms of the initial trauma which he endured. However, he expressed the view that the plaintiff's trouble in this respect is likely to be resolved in future when he finds a sexual partner who is able to accord him long term support and encouragement. On the probabilities, I consider this to be a comparatively short term disability suffered by the plaintiff" (it had however lasted over 7 years, to the date of trial) "but I am quite satisfied that it is attributable to the accident. The plaintiff does not appear to have been mentally affected in any other way by his experience".
The evidence supports his Honour's findings of fact and I accept them.
The award of $21,000 for general damages would clearly be excessive without the claim of sexual impotence. But that is of some significance and my conclusion is that in all the circumstances the award can not be described as so excessive as to be "erroneous to the point of actual unsoundness" (Minchin v Public Curator of Queensland (supra)) or "wholly erroneous" (Davies v Powell Duffryn Associated Collieries Ltd. (supra)).
Ground 2
"That the Learned Trial Judge erred in allowing the sum of $95,000 for lost earning capacity in that such sum is wholly excessive on the evidence."
In his reasons for judgment the trial judge traced the respondent's employment history, before and after the accident. He came to the conclusion that "this is a case in which a broad assessment of damage for economic loss from the date of the accident is preferable to the method of mathematical calculation coupled with a discount which is frequently adopted in some cases". The evidence shows this view to be correct. His Honour then awarded $95,000 for loss of earning capacity, both past and future.
At the trial the parties admitted that from the date of the accident to the date of the trial the net earnings difference between what the respondent would have earned, without overtime, if he had continued in his pre–accident employment by the appellant, and what he actually earned during that period was $41,242.90. There was no concession by the appellant however that the respondent was entitled to that sum by way of damages.
The respondent left school at about the end of 1972 aged 18 years. He worked as a bank clerk for about three months and as a truck driver for about four months. He then went on a working holiday on the mainland until January 1975, where he worked for three weeks as a labourer, five to six months as the driver of a racing car transporter, ten weeks as an underground labourer constructing sewerage pipes and four weeks as an outside rigger. In 1975 he studied for and obtained his higher school certificate, and in 1976 he completed an unsuccessful year as a university student. In both these years he did some part time work. In the first six months of 1977 he was a fork truck driver and for about three months he did truck driving and taxi driving. He then went overseas where he was a truck driver and manager of a branch for a trucking firm in England for about 14 months. He returned home to Tasmania in about October or November 1978. After about six weeks unemployment he was a truck driver for about three months until retrenched. After a further few weeks unemployment he was a clerk for about three months, until the job ran out. After a few more weeks unemployment he commenced employment with the appellant in December 1979, as a truck driver and Fork Truck driver. It was not a permanent job. He agreed he was put on as a casual. The accident happened in May 1980.
Following the accident he returned to work for the appellant doing cleaning work but said his injury prevented him continuing after three days. He returned again in early November 1980 but after a matter of days was dismissed. He said he was manually unloading containers and dropped many things.
He has had a number of jobs since. His evidence was that he applied for a variety of positions such as despatch clerk, storeman, ABC. trainee technician, trainee cameraman, ranger with the Department of Parks and Wildlife, gardener and truck driver. He did not tell potential employers he had a physical handicap but one firm told him he could not have a truck driving job because he had been on workers compensation. He was registered for employment and received unemployment benefits for substantial periods of time.
From about 1 July 1981 until 21 January 1982 he was employed by Grace Bros. as a supervisor of stores and bondsman in a bond store. He was dismissed, being told by the manager that there was not enough work to keep a storeman on. In his evidence he described difficulties he was having with his hand cutting hessian and newsprint paper. He also gave evidence that he worked as a casual relief truck driver for Mako Fish Sales between about Easter 1982 and about September 1982. It involved very little work.
On 27 January 1983 he suffered a whiplash injury to his neck in a motor vehicle accident. It is difficult to understand from the evidence for how long that injury incapacitated him For work. He received treatment for that injury from a chiropractor and he attended the Douglas Parker Centre for about three or four months until about July 1983. He swam regularly at a swimming pool. The evidence is confusing for he said that he received sickness benefits while receiving treatment at the Douglas Parker Centre and yet, particulars of his loss of earnings claim, which he said encompassed all that he earned, show that he was in receipt of sickness benefits from 18 October 1983 to 2 April 1984 and it was on 19 October 1983 when the arthrodesis of his thumb joint was carried out. In any event it appears that he was quite substantially disabled with his neck injury well into 1984. He continued to go to a swimming pool to assist his neck problems until about July or August 1984. He took pain killing tablets regularly for the pain from his neck until at least June 1984 and received physiotherapy in as late as July 1984. At about that time he went on a trip to the mainland for a holiday having been persuaded to do so by friends and partly to acquire a German Shepherd dog. He returned in December 1984. In Albury he underwent acupuncture For the neck. He gave evidence that he did not stop looking for work while being treated for his neck injury. The impression I have however is that for a substantial portion of the period from 27 January 1983 until the end of 1984 he was either incapacitated quite substantially by his neck injury or he was enjoying an extended holiday on the mainland. He said it was not a working holiday. I note that from the motor vehicle accident he was paid damages of $15,000 plus reimbursement of sickness benefits amounting he said to about $1,400 to $1,500 paid for about six months. He was asked for what period of time his neck symptoms would have prevented him from performing truck driving duties. He was unable to answer saying that his hand injury was the more severe injury and "I can't answer how I drive trucks with my neck without thinking about my hand".
His evidence appears to indicate that he continued to look for work as before but he had more or less discounted truck driving work as an avenue For employment because of his disability. He was not mentioning to potential employers that he had a hand injury and yet he could not obtain employment for a long period of time. In fact he did not obtain employment again until March 1986 when he commenced as an intermittent Crown Land Warden cleaning toilets, picking up litter and keeping surroundings clean. The work was seasonal, ending in June 1986. It involved alternately 20 and 25 hours each week and he was paid $220 per week clear. He drove an average of 30 kilometres per day, sometimes 50 kilometres in a Hi Lux four wheel drive. The Lands Department was satisfied with his work. He was asked to return and did so from December 1986 until May 1987. In the meantime he had applied unsuccessfully for about four storeman jobs, obtaining no interviews. when he returned to that work he earned $220 per week clear with extra for Christmas Day, New Years Day and Easter. The work involved five days totalling 25 hours each week. He complained in evidence Of pain and discomfort in his hand caused by having to drive a Toyota short wheel base Landcruiser for five to six weeks and an old Landrover for the rest of the time. He said he had trouble keeping this latter vehicle on the road, it having "extremely heavy steering, amazingly heavy steering". The former vehicle he complained had "knobby tyres". That vehicle "I thought ... was bad. My hand was giving me hell. I was lucky in one big thing, in that if I did have trouble with my hand I could always switch to something lighter" (meaning a lighter chore so as to rest his hand). The Department wanted his services again For the 19871988 season but in examination on 12 November 1987 he said he would not go back because "I can't handle driving that Landrover". However in cross–examination he said even if a different vehicle was made available he would not return to the job as "I was finding it was causing too much trouble with my right hand" and be referred to "things like cleaning toilets, having to wear plastic gloves, they were giving me an extreme amount of pain". I assess such evidence as an exaggeration. From his description of the work, the evidence of doctors and the fact that he did the work for at least eight months in all I am satisfied that he is able to continue to earn income from that seasonal employment. Both Mr Law and Mr Carney were unable to explain why wearing gloves should cause pain. The evidence of Mr Pecats, Crown Land Warden, established that the respondent carried out his duties to a satisfactory standard and Mr Pecats would recommend his re–employment.
About three weeks after last working for the Lands Department, that is in about early June 1987, the respondent commenced to drive taxis for City Cabs and he was engaged in that employment at the time of the trial in November 1987 (although he was then temporarily off work for two or three weeks with an injury). He was working on the Eastern Shore four nights a week on shifts totalling about 34½, to 35 hours per week. There was a passage in his evidence that I have considerable trouble believing and in fact I find that it was another example of the respondent's tendency to exaggerate the extent of his incapacity. He said that he is earning on average $170 to $180 per week our of which he must pay his own tax but he said there is a lot more money to be earned on the Western Shore. However "I've tried it a couple of times, and my hand wont take it". He said, "the Eastern Shore is for one thing a lot flatter. You've got a lot of hills, you've got a lot of corners, West Hobart, South Hobart, North Hobart, you're continually going around corners, up and down hills. The nights I've tried it my earnings have been down 50%". He was asked to explain and said that "I might have to have a break of two or three hours to get my hand back, so it will cool down so I can start driving again".
The respondent was asked what he planned to do in the future as far as employment is concerned and he responded by saying that if doctors would certify that he needed to do oral examinations rather than written examinations he "would like something in the line of journalism, political science" at the university. In his evidence he complained of considerable difficulty in writing because of his injury. It is difficult to understand in such circumstances why he would contemplate journalism, an occupation involving much writing, often at speed. I would also expect that an occupation based on a background of political science would require writing ability.
Summarising his work experience for the 7½ years from leaving school until the accident, apart from one job in England when on a working holiday for a little over a year, the longest period of employment he enjoyed was six months. In that time he spent about a year on a working holiday on the mainland, over a year overseas, a year as a student to obtain his higher school certificate and a year as a university student. At the time of the accident in May 1980 he was not in permanent employment with the appellant. He was then aged 25 years and had not demonstrated either an ability or capacity to settle into some form of permanent employment. Potential employers would understandably have some reservations about employing him. It must be added however that, apart from his two years as a student, his periods of unemployment were short until the accident. Since then he has not told potential employers of any physical handicap caused by the accident and yet he has had difficulty obtaining employment. The explanation would appear to be, at least partly, that his disability has limited the types of work for which he has applied.
He clearly has a handicap with the disability in his hand. I accept the assessment of Wright J that he is capable of driving light commercial vehicles and taxis but not heavy duty trucks. He is capable of working as a Crown Land Warden. However he has no real skills. No doubt a number of manual jobs are beyond his capabilities because of his disability.
From the time of the accident in May 1980 until near the end of that year he was almost totally disabled by his injury. From then it was a matter of him finding employment within his restricted capacity. After about six months he obtained employment for about six months until January 1982 with Grace Bros. Apart from a small amount of casual relief work he was unemployed until January 1983 when he became incapacitated by the neck injury suffered in the car accident. Notwithstanding the arthrodesis performed in October 1983 it appears that his failure to work for two years to the end 1984 was largely due in any event to the neck injury and to his decision to spend several months on the mainland enjoying a holiday. From the end of 1984 until the trial in November 1987 he had the capacity to work referred to earlier although in fact he worked only about 14 months in a little under three years.
The assessment of lost earnings to the date of trial is a difficult one. The figure of $41,242.90 was calculated on the basis of what he would have earned in full time employment by the appellant less what he actually earned. On the facts as I find them, the court should not be so generous. I would assess his loss at $30,000 or a little less, but no less than $25,000.
As to lost earning capacity from the trial onwards I take into account his restricted physical ability for work caused by the accident and his age of almost 33 years at the time of the trial. I consider it unlikely that he will successfully complete a university course and that his occupations will probably have a manual component. As a result his fields of employment will be restricted as will his chances of a reasonable income. I also take into account his background in employment before and since the accident. I would assess damages for his loss in the future in the range of $50,000 to $60,000.
All up for past and future loss of earning capacity my assessment of damages would be in the range of $80,000 to $90,000, whereas the trial judge awarded $95,000. I am not satisfied that the award of his Honour is sufficiently high as to warrant interference by this court. The margin between $80,000 to $90,000 on the one hand and $95,000 on the other is not much, equivalent to a loss of between about $6 and about $16 per week on the 3% interest table over a period of 25 years.
Accordingly I would dismiss the appeal on all grounds.
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