McCullough-Robinson, C. v Trickey, N.L

[1994] FCA 333

COLLEEN McCULLOUGH-ROBINSON and CEDRIC NEWTON ION-ROBINSON v. NORMAN LINDSAY
TRICKEY
No. NG 996 of 1993
FED No. 333/94
Number of pages 4
Negligence - Damages - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SHEPPARD, WILCOX AND BURCHETT JJ

CATCHWORDS

Negligence - injury caused to operator employed to use tractor mower when its wheel went into a concealed hole in lawn - hole previously observed by other employees who failed to remedy it or report it - vicarious liability of employer.

Damages - Appeal - test to be applied upon appeal against quantum of general damages - calculation of amount allowed for loss of earning capacity.

Bus v. Sydney County Council (1989) 167 CLR 78

Planet Fisheries Proprietary Limited v. La Rosa (1968) 119 CLR 118

HEARING

SYDNEY, 23 May 1994
#DATE 31:5:1994

Counsel for the Appellants: Mr D.B. Milne QC with Mr D.R. Conti

Solicitors for the Appellants: Messrs McClellands

Counsel for the Respondent: Mr P.R. Hennessy

Solicitors for the Respondent: Messrs Short Flynn and Company

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed with costs;

2. The cross-appeal be allowed with costs;

3. The amount of the judgment for the plaintiff be varied by substituting for the sum of $244,361 the sum of $272,304.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SHEPPARD, WILCOX AND BURCHETT JJ The appellants have been found liable in the Supreme Court of Norfolk Island to pay damages, for negligence, in respect of injuries sustained by the respondent on 30 January 1990 in the course of his employment by them. They seek to overturn the finding that they were negligent, and to have the plaintiff's action dismissed. On his part, the plaintiff has filed a cross-appeal, seeking an increase in the amount of the damages awarded. The judgment entered in the respondent's favour was in the sum of $244,361 plus costs.

1. The plaintiff's injuries were sustained when a wheel of a tractor mower, which he was driving, fell into a hole in the surface of the lawn he was mowing at the appellants' property on Norfolk Island. The hole was variously estimated at about 6 to 12 inches in depth, and the evidence indicated that it had a steep side. As a result of the wheel going into it, the tractor upon which the respondent was sitting lurched and jerked, causing a disc lesion in the respondent's lower back.

2. On the findings of the Supreme Court, it appears that the hole was probably difficult to see, the grass being long enough to hide it. But there was evidence that on several previous occasions, at least one of which was only a few months before, a hole had been encountered by the appellants' gardeners, other than the respondent, during the mowing of this lawn. Although counsel for the appellants contended otherwise, in our opinion it was plainly open to the learned trial judge to find that the prior incidents related to the very hole that caused the accident. There was no evidence that any hole had been filled in before the accident, and there was no evidence that, after it, when attention had been directed to the matter, any other hole was located and levelled. The hole involved in the respondent's injury did then have a quantity (described as a half a barrow load) of soil placed in it by the use of a bobcat.

3. The learned trial judge expressly found that the hole observed by two of the witnesses, on prior occasions, and the hole with which this case is concerned were one and the same. That finding cannot be disturbed.

4. The question then is whether the existence of the hole, concealed as it was by grass, was properly regarded by his Honour as a hazard for which the appellants were responsible. Their manager, asked in cross-examination whether it "was a potential danger to the operator of the mower", acknowledged: "Yes, it could be." One of their employees, who had encountered it about two or three months earlier, had noticed that the jolt "just jumped the whole body" and that "it was the way the tractor hit that makes (sic - sc. made) the tractor twist and drop". Yet none of the employees, upon discovering the hole, took any step to remedy it or to report its existence. It was open to his Honour, on the evidence, to find that each of them was careless in failing to do something about it, or at least to notify the manager.

5. That raises the issue whether the other employees who had observed the hole owed any duty of care to the respondent for the breach of which the appellants could be vicariously liable. Each of them, at the time he saw the hole, became aware of the existence of a hazard which, whatever the position after the grass had been cut, was not readily visible before it was cut. Each of them, of course, knew that fellow workers would later have to mow the lawn when the grass had regrown, who might not be aware of, or might overlook, the presence of the hole. It was not something that could properly be ignored. The appellants' head gardener, a Mr Gardner, who did fill it in after the accident, acknowledged that it required filling in "for safety". One of the gardeners who knew of the hole, a Mr Adams, said: "It was a dangerous hole". He acknowledged: "Now I think back probably I should have done something about it".

6. It is, of course, well recognized that an employer may be vicariously liable for the casual acts of negligence of an employee towards a fellow worker. Indeed, in Bus v. Sydney County Council (1989) 167 CLR 78, the High Court held an employer liable for a casual act of negligence of its employee towards an independent contractor, whose work brought him into close proximity to equipment upon which the employee had worked. Liability was found because the employee failed to cover a cabinet containing exposed electrical wiring. Mason CJ, Deane, Dawson and Toohey JJ (at 90) referred to the risk of the contractor "touching a terminal through inadvertence", and said: "The effective protection against that risk was the placing of the cover on the cabinet, an action which could only have been carried out by (the employee)." Gaudron J said (at 92): "(I)f there was a foreseeable risk of a relevant injury by reason of the equipment being uncovered, a reasonable person in the position of the Council's employee would cover it." She referred to "a duty of care as between electricians working on the same electrical equipment", and held that if there was a foreseeable risk of injury, there was a duty "to take reasonable precautions to avoid that risk". In our opinion, the trial judge here was right to find that, as between gardeners working on the same lawn, there was a similar duty of care imposed upon those gardeners who became aware of a hazard which might entrap a fellow worker.

7. Accordingly the appeal should be dismissed.

8. Two questions are raised by the cross-appeal. One relates to the amount of general damages awarded, which his Honour assessed at $50,000. It was argued that this sum was too small.

9. The plaintiff, who was aged about 46 at the time of the accident, sustained an injury to the L5/S1 disc in his low back, which caused persistent pain and required surgical intervention. On 4 June 1990, Dr Richard Hudson, an orthopaedic specialist, carried out an operation for decompression of the S1 nerve root, involving fusion of the vertebrae and a bone graft at the L5/S1 level. The cross-appellant had in his low back, prior to the accident, a mechanical insufficiency secondary to an abnormal disc, and Dr Hudson regarded him as having had a vulnerable spine. As a result of the accident and surgery, he has continuing back ache and partial disability, so that heavier work is beyond him. There is a possibility of further surgery at the L3/4 and L4/5 levels.

10. The reasons of the learned trial judge do not suggest any error of principle in his approach to the question of general damages. It is true that he referred to the unreported decision of Miles CJ in Tucker v. Westfield Design and Construction Pty Ltd, delivered 21 December 1992, a decision which was reversed in Tucker v. Westfield Design and Construction Pty Limited (Burchett, Hill and Higgins JJ, unreported, 22 April 1993). However, the reasons of the Full Court in that case do not disclose anything to cast any doubt upon his Honour's approach in the present matter. The principle which must govern our consideration of this aspect of the cross-appeal is that which was stated in Planet Fisheries Proprietary Limited v. La Rosa (1968) 119 CLR 118 at 124, where Barwick CJ, Kitto and Menzies JJ made it clear that an award of general damages which discloses no "wrong principle in (the) approach to the assessment or ... improper or insufficient emphasis to any fact or that (the judge) was in any respect mistaken in his view of the relevant facts" should only be disturbed if it represents "a wholly erroneous estimate of the damages to which the plaintiff was entitled". We are unable to regard his Honour's award of general damages in the present case as one which could be so described. On the contrary, it is such as we would ourselves have awarded.

11. That brings us to the second question raised by the cross-appeal. In assessing the plaintiff's claims for past economic loss and future economic loss, the trial judge accepted "that the plaintiff's performance at work was satisfactory and that he would have continued to work with the defendants at wages in line with those paid to other of the defendants' employees in comparable positions." There was evidence that such a wage was $460 per week net of tax during the period of some six months or more before the hearing. Indeed, we were informed by counsel that the solicitors for the parties had agreed at the trial "that comparable employees to the plaintiff in the defendants' employ were now earning $460 per week". However, the plaintiff acknowledged that this figure should be reduced to allow for his residual earning capacity, which he claimed should be seen as about $60 per week net. On that basis, the plaintiff's counsel put that $400 per week might be regarded as the appropriate amount for the purposes of calculation. It was to be subjected to a further discount for contingencies, which his Honour assessed, having regard to the plaintiff's vulnerable spine, at 30%. However, his Honour chose, not $60 per week, but $100 per week as the net amount which he thought represented the plaintiff's residual earning capacity. Accordingly, he reduced the figure which had been calculated in respect of past economic loss for the period of two years immediately preceding the trial. A recalculation of his Honour's figures shows that, when he worked out the final sum for past economic loss, he did so allowing the plaintiff for lost earnings over the last 24 weeks before the hearing at the rate of $460 per week, and then deducted an amount assessed at $100 per week. Yet when he came to the calculation of figures for future economic loss, the judge subtracted his estimated residual earnings figure of $100 per week, not from the proved comparable earnings of $460 per week, accepted by him in calculating the past loss, but from the plaintiff's suggested figure of $400 per week, a figure the plaintiff had only put forward on the basis that it allowed for the deduction relating to residual earning capacity. The result appears plainly to be that that deduction has been made twice.

12. We appreciate that this is not how his Honour saw the matter when the question was raised by counsel after judgment. He drew attention to the qualified statement, in his judgment, of the value of the original earning capacity - "in the order of $400 per week net." But it would make a great deal of the inexactness of the words "in the order of" in this statement to treat them as reducing the known figure of $460 to $400, especially in the face of the finding that the plaintiff "would have continued to work with the defendants at wages in line with" the higher figure, which was used in the calculation of past economic loss.

13. In any case, the reduction could only properly be made for some sufficient reason. The defendants' contention that the plaintiff was not a satisfactory worker, so that he would not have earned the same wages as the employees accepted as otherwise comparable, was expressly rejected. That leaves a reduction based on the potential for disability in the condition of the plaintiff's back. But if the judgment should not be read as involving a double deduction of an assessment of the residual earning capacity, but rather as involving an allowance for the contingencies inherent in the plaintiff's vulnerable spine, by the reduction of the comparable earnings figure to allow for his problems, there is still a double deduction. For in that event the risks of disability for which the calculated discount of 30% was imposed have been counted against the plaintiff a second time in the reduction of the very earnings figure to which the 30% discount had to be applied.

14. It follows that the figure allowed for future economic loss should be increased by the amount attributable to the deduction of the $60 per week. That amount we calculate at $27,943.

15. In the result, the appeal should be dismissed with costs; the cross-appeal should be allowed with costs; and it should be ordered that the amount of the judgment for the plaintiff be varied by substituting for the sum of $244,361 the sum of $272,304.