McKay v Palmers Removalists & Storage Pty Ltd

[2010] NSWCA 83

New South Wales

Court of Appeal

CITATION:	McKay v Palmers Removalists & Storage Pty Ltd [2010] NSWCA 83
HEARING DATE(S):	25 March 2010
JUDGMENT DATE:	20 April 2010
JUDGMENT OF:	Beazley JA at 1; Whealy J at 34
DECISION:	1. Appeal allowed; 2. The respondent to pay the appellant’s costs of the appeal, but to have a certificate under the Suitors’ Fund Act 1951, if so qualified; 3. Remit the matter to the District Court for the redetermination of the question of future economic loss; 4. Order that, before order 3 is implemented, pursuant to the Civil Procedure Act 2005, s 26, the assessment of the appellant’s future economic loss be referred to mediation.
CATCHWORDS:	DAMAGES – future economic loss – whether experience gained after injury impacts on claim for future economic loss – application of principles in Malec v JC Hutton Pty Ltd [1990] HCA 20 - (1990) 169 CLR 638
LEGISLATION CITED:	Civil Procedure Act 2005, s 26
CATEGORY:	Principal judgment
CASES CITED:	Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
PARTIES:	Daniel McKay (Appellant) Palmers Removalists & Storage Pty Ltd (Respondent)
FILE NUMBER(S):	CA 2009/298445
COUNSEL:	P Maiden SC; T Boyd (Appellant) D Hooke SC; N Broadbent (Respondent)
SOLICITORS:	Cameron Gillingham Boyd (Appellant) Edwards Michael Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 62/2009
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ
LOWER COURT DATE OF DECISION:	19 May 2009

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CA 2009/298445

BEAZLEY JA
WHEALY J

20 April 2010

Daniel McKay v Palmers Removalists & Storage Pty Ltd

Headnote

The appellant, who worked for the respondent’s company as a furniture removalist, was injured whilst carrying a marble tabletop in the course of his employment.

The appellant brought proceedings against the respondent in the District Court of New South Wales claiming damages for the injuries he received. The trial judge, Gibson DCJ, found for the appellant and ordered, inter alia, that damages, including an amount for future economic loss, be paid. The amount of future economic loss awarded was then calculated in accordance with the appellant’s most recent employment, as a furniture removalist.

The appellant appealed against her Honour’s assessment of his future economic loss. He contended that her Honour erred in rejecting his case that he would have become an interstate truck driver (a more lucrative vocation) and in finding that his work intentions were to remain employed as a furniture removalist. The appellant therefore contended that the amount of future economic loss awarded should have been assessed in accordance with the principles in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

(i) The trial judge overlooked passages of evidence and the inferences to be drawn from such evidence that pointed to the appellant’s intention to undertake work as an interstate truck driver.

(ii) The appellant’s claim for future economic loss therefore should have been assessed on the basis of the percentage likelihood that he would have become an interstate truck driver, in accordance with the principles in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

CA 2009/298445

BEAZLEY JA
WHEALY J

20 April 2010

Daniel McKay v Palmers Removalists & Storage Pty Ltd

Judgment

1 BEAZLEY JA: On 19 August 2005, the appellant was injured whilst carrying a marble table top, weighing approximately 100 kg, in the course of his employment with the respondent as a furniture removalist. The appellant was being assisted in the task by another employee, Greg Mollar. In the usual course, four people were required to lift a load of that weight, but on the day of the accident, the respondent’s business was short-staffed and only Mr Mollar was available to assist the appellant in the task. At the time of the incident, Mr Mollar was on light duties and was not supposed to be carrying heavy items. Mr Mollar dropped his end of the table, leaving the appellant to bear the full weight of it, thereby causing him to fall and injure his neck, arms and back.

2 The appellant brought proceedings against the respondent in the District Court, claiming damages for the injuries he received. The trial judge, Gibson DCJ, found that the respondent was negligent in requiring the appellant to carry the table in circumstances where a team of four people should have undertaken it. Her Honour assessed damages in the sum of $372,699.33, comprising past economic loss of $124,987.58; future economic loss, including superannuation, in the sum of $234,867.75; and a Fox v Wood component of $12,844: see Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

3 This appeal is from her Honour’s award of future economic loss including future superannuation. The appellant submitted that her Honour erred in rejecting his case that he would have become an interstate truck driver and in finding that his work intentions were to remain employed as a removalist. The appellant contended that his future economic loss should have been assessed on the basis of the percentage likelihood that he would have become an interstate truck driver, in accordance with the principles in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

Background facts

4 The appellant was 28 years of age at the time of injury and 32 at the time of trial. He left school in year 9. He was married and, at the date of the accident, had two young children, aged 9 and 2. At the time of trial, those children were aged 13 and 6 and a third child had been born, who was 18 months old. Up to the time of commencing employment with the respondent, the appellant had worked in various jobs, including as a truck driver. His employment as a truck driver had sometimes involved work as a removalist. He held a heavy rigid licence (an HR licence) during this period, which enabled him to drive dual-axle vehicles.

5 The appellant commenced working for the respondent as a removalist truck driver in August 2001. The major part of his employment involved driving interstate on overnight trips. His work also involved loading the truck, driving it to a nominated destination, unloading it and then driving back. Whilst employed with the respondent, the appellant drove a rigid vehicle with a trailer behind, which required him to upgrade his licence to a heavy combination licence (an HC licence). The appellant said he very much enjoyed the interstate driving work.

6 The appellant said that prior to his accident, he had plans to obtain a multiple combination licence (an MC licence), so as to attain a better future earning capacity. An MC licence entitled a person to drive a dual-axle prime mover with two or more trailers, known colloquially as a “B double”. The appellant said that his intention in obtaining such a licence was to enable him to do long-haul interstate work. The appellant said that prior to his accident, he had made enquiries through the RTA about obtaining an MC licence. Through those enquiries, he had ascertained that it was necessary to undertake a two-day course, which comprised one day’s practical training and one day undertaking the driving test. He also ascertained that the fee for the course was $1,100.

7 The appellant said that had he obtained his MC licence, he intended to seek employment suited to that licence, with an employer other than the respondent. He was unsure as to when he might have been in a position to obtain such a licence because of its cost. He said it “takes a long time when you’ve got kids to save money”. As best he was able to predict, the appellant expected to be in a position to obtain an MC licence in about 2006. The accident then intervened.

8 The appellant in fact obtained his MC licence in January 2006, when he commenced work with JMA Brothers. It was a requirement of his employment with that business that he had an MC licence, which JMA Brothers paid for. His employment with JMA Brothers involved interstate car-carrying work driving a B double. The appellant said he had difficulties driving the truck and with loading and unloading.

9 The appellant’s employment with JMA Brothers lasted for a period of about two weeks. He left in circumstances where, having been required to drive to Melbourne, he ran out of his pain medication. At the time he had been prescribed Tramadol, 50 mg. He said that the medication “took the edge off the pain”, but that when he “ran out of painkillers [he] couldn’t do the job”.

10 The appellant was cross-examined to the effect that the reason he left his employment with JMA Brothers was because his employer had told him he would have to be away for three months. The appellant responded:

“Oh yes, yes, that happened. Maybe not three months but yes, it was going to be a long time.”

However, the appellant maintained that he was in a great deal of pain and couldn’t stay away as required because he didn’t have a sufficient supply of pain killers. He said he had to return to Sydney to get another prescription. He also said he had been told he would be home every two days, but that by the time he left the job he had been away for two weeks and “ it didn’t look like [he] was coming back home ”. He said he was in a great deal of pain and thought the best thing to do was “ to give it up and come home ”.

11 The appellant was cross-examined as to why he did not go and see a doctor in Victoria. He explained that whilst in Victoria “he wasn’t near anywhere” that he knew. He gave the same explanation as to why he did not go to a hospital or a chemist. The appellant said he informed his employer:

“… that I couldn’t do it. I had to go and get painkillers and stuff and he sent me home to do it because the arm wasn’t getting any better so I called him and explained it to him.”

12 It would seem that the cross-examination of the appellant to the effect that he had left his employment with JMA Brothers because he had to be away for three months, was based upon the progress notes of the appellant’s general practitioner, Dr Yen Tao, dated Monday 30 January. Those notes recorded, relevantly:

“ Monday January 30 2006 14:21:16 …

History: …

Quit previous driving job yesterday as was told had to be away for 3 months. So quit and hitchhiked back from Melbourne.
Pain in back gone.
Pain in left arm tolerable with tramadol 100 SR and tramadol 50 mg bd …
Prescriptions printed:
TRAMADOL HYDROCHLORIDE CAPSULE 50 mg a q.8.h p.r.n.
TRAMADOL HYDROCHLORIDE SR TABLET 100 mg 1 daily”

13 Apart from the cross-examination to which I have referred, there was no other cross-examination to the effect that the appellant would not undertake long haul work driving a B double because it would mean being away from his family.

14 Medical records from Dr Tao and Dr Anna Pham reveal that the appellant had been experiencing considerable pain in his left arm in the earlier part of January 2006. He attended Dr Pham on 5 January and Dr Tao on 9 January 2006, complaining of problems relating to his left arm. Dr Pham recorded, relevantly “parathesia lateral 3 fingers”; and Dr Tao, “excruciating pain left arm pain and numbness left hand 1 week. Had before but got worse”.

15 The appellant was admitted to Liverpool Hospital on 9 January 2006. It appears that he was an inpatient for two days. The hospital notes recorded a “presenting problem” of “[left] arm pain and hand numbness”. The “principal diagnosis” was “left C6/7 disc prolapse”. Under the “Summary of progress and management plan”, it was noted “not for operation at present” and “pain settled”.

16 The appellant was again admitted to Liverpool hospital on 3 April 2006, where he underwent an anterior cervical discectomy and replacement performed by Associate Professor van Gelder. He was discharged on 4 April 2006.

17 The appellant did not obtain any further employment until late 2006, when, on two occasions for periods of two weeks, he worked for Scotts Car Carriers. However, he said he could not do that work. It was apparent from his evidence that the lifting associated with this work was too heavy and caused him pain.

18 It was not in dispute at trial that the appellant was not capable of returning to his pre-injury employment as a furniture removalist/truck driver in an unrestricted capacity. Nor was it in dispute that he had an MC licence and that rates of pay for persons driving B double trailers (for which an MC licence was required) were higher than for driving vehicles for which only an HR or HC licence was required. The appellant had been assessed at the Vocational Capacity Centre by David Verhagen, physiotherapist, as capable of performing a range of other occupations and, in this regard, had a number of transferable skills and abilities. In particular, he had been assessed as being able to undertake the work of a courier, telemarketer, general clerk, sales assistant, receiving and despatching clerk and meter reader.

19 In rejecting the appellant’s claim that but for the accident he would have become an interstate truck driver utilising his MC licence and that because of the accident he was unable to do this, her Honour stated:

“[50] The difficulty I have with [the appellant’s] claim that but for this accident he would have become an interstate truck driver and that because of the accident he cannot do this, is that the requirements and demands of interstate truck driving, as opposed to driving as a courier, were never put by him to the report preparers for the defendant, or to [the appellant’s] own doctors, in the course of these work assessment and medico-legal reports.

[51] [The appellant] told the preparers of these reports that he was looking for work as a truck driver, which he could not obtain. He does not appear ever to have told the vocational assessors of his wish to be an interstate truck driver. When asked about his job preferences, according to the November 2008 report, he ‘could not immediately identify any preferences for work but stated that he would like to return to work in some capacity although ‘all he knows is driving’. He is disinterested in undertaking any study to improve his job chances. When questioned as to his future goals and aspirations [the appellant] stated ‘[I] really don’t know’ … He told the assessors he had an HC Truck Driver’s licence … and said nothing about attempting to work as an interstate truck driver immediately prior to surgery.

…

[53] [The appellant’s] failure to tell the assessors that he had not only an HC but also an MC licence is unexplained, as is his failure to tell them of a wish to become an interstate driver. If he had raised these matters with the assessors, I would have had the benefit of reading their opinions on the subject. As it is, the assessors make clear the fact that [the appellant’s] physical condition is such that he is able to work as a truck driver. There is no evidence to enable me to identify the difference between interstate truck driving, truck driving and courier work. The ‘rigid’ vehicles with automated handling referred to by the assessors would include rigid long-haul vehicles.

[54] [The appellant] was unable to work as an interstate truck driver immediately prior to surgery. However, his condition has improved to the extent that the vocational assessors consider he is fit to work in the occupations outlines above. If [the appellant’s] condition did not improve to the extent of being able to be an interstate truck driver, that is a matter that should have been discussed with the assessors, not put forward for the first time in these proceedings in circumstances where the defendant’s experts could not opine on whether or not he could perform such work. (emphasis added)

[55] In addition, a significant factor in his ceasing work as an interstate truck driver was that his employer (for the job he held briefly prior to surgery) told him, according to his statements to his general practitioner, that he would be required to remain away from home for three months, which he was not prepared to do. The conditions of interstate driving include long absences from home, and I find that this is an unattractive feature of such employment for [the appellant] which would make it unlikely for him to have persisted in a career as an interstate truck driver.”

20 Her Honour concluded:

“[60] [The appellant] was cross-examined about how he prepared these reports and he admitted quite frankly that he made up some of these job applications. He obtained names out of the papers and rang up. He went out looking for work but did not take a resume. It was put to him in cross-examination that he was not looking very hard for work. I see similar opinions expressed in the vocational assessment reports.

…

[65] For the reasons set out above, I am satisfied that [the appellant’s] work intentions were to remain in the removalist trade. I am satisfied that he should be awarded the sum of $5,000.38 for the first period of economic loss up to when he commenced to work.

[66] However, for the reasons I have indicated above, I do not accept [the appellant’s] evidence that but for the accident he would have become an interstate truck driver, and that because of the accident he is unable to do this work. I am not satisfied that he would have become an interstate driver. Nor am I satisfied that the nature of interstate truck driving is such that he is unable to do it; if this is work [the appellant] wished to do it should have been raised with the vocational assessors so that they had the opportunity of giving their expert opinion. As it is, they were not even told he had an MC licence.”

Arguments on the appeal

21 The appellant contended that her Honour erred in two respects in assessing his future economic loss on the basis that, but for the accident, his work intentions were to remain in the removalist trade. First, he submitted that her Honour came to this conclusion because she considered that the appellant had not told the vocational assessors of his wish to be an interstate truck driver. Her Honour had expressed the opinion that if that was his intention, “it should have been raised with the vocational assessors so that they could give their expert opinion on that matter”. It appears from her Honour’s reasons that she considered the appellant’s intention in this regard was a recent invention (see particularly at [54]). Secondly, and this followed if the first argument was made out, the appellant submitted that his future economic loss should have been assessed in accordance with the principles in Malec v JC Hutton Pty Ltd.

First argument

22 The appellant submitted that her Honour was incorrect in her understanding that the appellant’s claim that he had intended to work as an interstate driver using his MC licence had not been raised with the vocational assessors. In the course of the assessment undertaken by Mr Verhagen on 25 and 26 July 2007, Mr Verhagen noted that the appellant had tried to return to work driving trucks and carrying cars. The appellant reported difficulties lifting heavy steel ramps required in this work. Mr Verhagen referred to this again, when he said in a later section of the report:

“It was also noted that [the appellant] reported [that he] returned to work lifting large steel ramps as a car carrier in the same year as he underwent a disc replacement in his neck.”

23 The appellant submitted that this was clearly a reference to his driving B doubles, as was apparent from his description of the work he did when he drove the B doubles for JMA brothers. Because of possible confusion in the chronology, at least as recorded by Mr Verhagen, I am not certain that Mr Verhagen’s report would be obviously understood as a reference to driving B double trailers. However, the fact is, his report dealt with the driving of heavy vehicles. Mr Verhagen expressed the opinion that the appellant would not be suitable to perform such work in the future. B doubles were the heaviest of the vehicles that the appellant could drive. If Mr Verhagen’s evidence was directed to vehicles that were not as heavy as B doubles, then it would follow that his comments would also apply to work involved in driving those vehicles, but with more force.

24 Mr Verhagen considered that, generally, the appellant appeared to be searching for work in a too-heavy work category. Mr Verhagen was of the opinion that at the time of the assessment, it was prudent to restrict the appellant to 15 kg of lifting capacity. In a further passage in the same report, Mr Verhagen concluded that the appellant had appeared to return to work in a “somewhat random fashion”. Mr Verhagen expressed the opinion that it was unlikely the surgeon would have approved the appellant performing such heavy activities as he had undertaken in the year following his surgery.

25 The appellant was assessed by Peter Defina, psychologist, also at the Vocational Capacity Centre. The appellant informed Mr Defina that he was licensed to drive B doubles or road trains and that at school, “his vocational aspiration” had been to work as a truck driver. He told Mr Defina that:

“… he would like to work as a truck driver. He expressed a preference for interstate driving and added that much of his work as a removalist had been interstate. In addition, he expressed an interest in work as a landscaper or gardener.”

26 The appellant also underwent a vocational assessment with the ARC Work Assessment Centre. That assessment was undertaken by Liz Atteya, occupational rehabilitation counsellor. Ms Atteya noted that the appellant was “a disjointed historian” and was unable to recall detail, particularly relating to dates. Nonetheless, Ms Atteya considered that the appellant:

“… co-operated with the assessment and answered all interview questions although not in a detailed manner.”

27 There is no reference in the ARC Assessment to the appellant having an MC licence. However, there is a reference to his HC licence, Ms Atteya noting that in 1999, the appellant obtained his HR licence and then upgraded to an HC licence. The appellant was not cross-examined to explain this omission in the history he had given Ms Atteya.

28 It is apparent from the evidence to which I have referred that there were various references in the reports of the vocational assessors to the appellant’s wish to be an interstate truck driver. There was at least one reference to his holding an MC licence. The assessments were at one that, as a result of his injuries, the appellant was not suitable to undertake the work of driving heavy vehicles. Indeed, the assessors recommended that his lifting capacity be restricted to 15 kg. That restriction would not allow him to drive any form of heavy vehicle, or perform any form of work associated with such vehicles, including driving vehicles that were not as heavy as a B double.

29 Accordingly, her Honour’s concerns in the passages of her judgment set out above overlooked this evidence and the proper inferences to be drawn from it. In particular, the emphasised portion of [54] is inconsistent with the evidence of the assessors, or at least does not take into account the evidence of the assessors relating to driving heavy vehicles on interstate trips. Driving a B double was either included in those references, or was properly inferred from them. Accordingly, I consider that the first argument advanced by the appellant should be upheld.

Second argument

30 The appellant gave evidence that prior to the accident, he had planned to obtain an MC licence. Whilst her Honour did not have to accept that evidence, she was required to consider it, together with: the evidence of his statements to the assessors that it had always been his vocational aspiration to be a truck driver, in particular, to be an interstate truck driver; that he in fact had an MC licence which enabled him to drive B doubles; and that he had obtained that licence after the accident for the purposes of his employment with JMA. As I have already stated, a person driving B doubles is able to earn at a higher rate than persons driving vehicles for which only an HR or HC licence is required. The appellant was not cross-examined to the effect that he was not being truthful when he said that prior to the accident he had an intention to obtain his MC licence. Nor was he cross-examined to the effect that he was not prepared to be away from home whilst undertaking long haul work, or at least that he was not prepared to do that work whilst his family was young.

31 Given the unchallenged evidence of the appellant’s intentions and the absence of cross-examination on critical aspects of his claim, I am of the opinion that her Honour erred in basing the assessment of the appellant’s future economic loss on his being a removalist. Rather, her Honour was required to assess the degree of probability that, had he been uninjured, the appellant would have exercised his earning capacity by driving B doubles, in accordance with the well known principles in Malec v JC Hutton Pty Ltd.

32 Accordingly, her Honour’s assessment of future economic loss miscarried. Unfortunately, I do not consider that this Court can itself make that assessment. Her Honour’s finding essentially involved an adverse credit finding against the appellant. However, before the matter is remitted to the District Court for a reassessment of future economic loss, I consider that there ought to be a mediation of that issue and I propose to so order. In making that order, I am aware the parties have attended a compulsory mediation under the processes required by the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Nonetheless, the parties now have the advantage of this Court’s judgment that the damages in this matter should have been assessed in accordance with the principles in Malec v JC Hutton, which should assist in the resolution of the matter.

33 The orders I propose are:

1. Appeal allowed;

2. The respondent to pay the appellant’s costs of the appeal, but to have a certificate under the Suitors’ Fund Act 1951, if so qualified;

3. Remit the matter to the District Court for the redetermination of the question of future economic loss;

4. Order that, before order 3 is implemented, pursuant to the Civil Procedure Act 2005, s 26, the assessment of the appellant’s future economic loss be referred to mediation.

: I agree with Beazley JA.

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