Medlin v The State Government Insurance Commission

No judgment structure available for this case.

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A27 of 1993
B e t w e e n -
BRIAN HERBERT MEDLIN

Appellant

and
THE STATE GOVERNMENT INSURANCE
COMMISSION

Respondent

DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

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TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 1994, AT 10.16 AM

Copyright in the High Court of Australia

MR T.A. GRAY, OC:

May it please the Court, I appear with my

learned friends, MR R.A. CAMERON and MS M.A. PERRY,
for the appellant. (instructed by Paul Kirk
Roberts & Co)

MRS. WALSH, OC: If the Court pleases, I appear with my

learned friend, MR H.G. ROWELL, for the respondent.
(instructed by Stratford & Co)

DEANE J:	Mr Gray?
MR GRAY:	If the Court pleases, could I start with just two

general observations. The first about the nature
of the injury and its effects and the second about
the particular university duties that the appellant
had to perform.
As far as the appeal is concerned the relevant

injury is a serious injury to the hip and pelvis,
but in particular a stellate fracture to the
acetabulum so that the moving surfaces in the hip

joint were affected by a serious fracture. A
consequence of damage to that articular surface is
that it becomes a source of pain. Following the
aftermath of the initial treatment and
convalescence, the appellant was left with a
serious hip injury but in particular one that
caused constant pain - described as chronic pain -
found to be chronic pain, and found to be pain that
was sufficient to wake him every night.
Further, because it was in a moving surface,

it was prone to degeneration and the finding of the
trial judge was that there would be a need for a
hip replacement by about 1995 or 1996. That was
three to four years after trial. So, the plaintiff
faced, through the degenerative process, an
increase in the level of pain to the point where a
hip replacement would become necessary.

The finding in regard to pain, and that really

is the important matter as far as the appeal is concerned, is that not only was it chronic, and
there at a low level, but activity exacerbated the
intensity of the pain, and all of that was really
not in issue.
Could I then turn to the other matter of

general introduction. It was in regard to
Professor Medlin's duties. At the Flinders
University in the faculty of philosophy, there were
two, as it were, senior positions. There was the
position of the holder of the chair, and there was
a position of head of discipline of the faculty.
The position was such that the one person could
hold both those positions or it could be split.

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Essentially, the duties of the professor were,
obviously, to lead in terms of professional
standard of the faculty, but were principally
three: they were the teaching of undergraduate
students, research and, thirdly, the supervision of
postgraduate students and, of course, there were
ancillary duties. But, broadly speaking, there
were those three duties.
The head of discipline had the administrative

responsibilities in regard to the faculty, and that
distinction is important to draw when one comes to
consider the consequences to the appellant, flowing

from his injuries. Now, shortly put the
appellant's case was - - -

DEANE J:	The head of discipline is what, the dean in other places is?
MR GRAY:	Yes, it is, and he would be charged with run of

administrative duties, and -

DAWSON J:	What, the dean of the arts faculty?
MR GRAY:	Yes, but in this particular university there was a

dean of this discipline, and through the relevant
period, Professor Medlin - - -

DAWSON J: But, what was this discipline?

MR GRAY: This discipline being the school of philosophy.

DEANE J: So, it was not the equivalent of the dean?

MR GRAY:	Not of the arts faculty, no.
DEANE J:	You are saying faculty; do they call philosophy a

faculty at Flinders, or is it a department?

MR GRAY:

Yes, it is correctly called a department.

The

point that I am wishing to draw is that the

administrative responsibilities in regard to that
department did fall to the office of the head of
that discipline, and importantly, although
Professor Medlin had exercised that function, he had been relieved of it from time to time, and in regard to the period that this appeal concerns, a
Dr O'Hair had primarily exercised those
administrative functions.
The complaint in regard to loss of earning capacity was not so much that Professor Medlin
could not do those administrative tasks and put up
with the discomfort of the physical pain, it was
when he attended to his lecturing duties; that was
as far as he could go. And when he did attend to
his lecturing duties his evidence was that sapped

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him of his energies and he could no longer perform
the research, or satisfactorily perform the
supervision of post-graduate students, or for that
matter deal with, in addition, administrative
functions.

TOOHEY J: That seems to me to take perhaps an unduly narrow

view of loss of earning capacity. Naturally you
focus upon the job that the person was doing when

he or she was injured. But in some cases a person
is not working at all at the time of an injury,
maybe because they are unemployed or it might be
somebody in a contemplative order. It does not
mean that they have not suffered some loss of

earning capacity. Why is it confined to the
particular duties which the appellant was carrying
out at the time?

MR GRAY:

The answer is that it is not. At the conceptual

level our case is that Professor Medlin suffered,
by reason of a serious hip injury with chronic
pain, a significant impairment of earning capacity,

and that is at large. He is unfit, obviously, for

manual work. He is unfit for a whole range of
things that he might otherwise be fit for. But in regard to his particular vocation, he became unfit
to perform a number of the duties of the university

professor. So we put it in the general, but then
we specifically put our submissions to the
particular job that he was undertaking at the time.
Turning, for example, to the position

post-retirement, there is clear evidence that he
had attempted to do work, post his retirement, and
could do some but not the full range that he would

like to have. So there was an impairment of his
earning capacity at large. If the Court pleases, against that background the Court would have seen from the synopsis at the start of our written
submission the primary points that we seek to

agitate on this appeal.

DAWSON J:

Why can you not say that the only earning capacity that was relevant was the earning capacity

as a professor, because that was the only one which

was ever in contemplation.

MR GRAY:

If the Court pleases, we say that that inquiry is
relevant to the point of assessing the loss of the

damage that follows. That one would say that, for

example, he had lost the ability to be a heavy

labourer but as - and that is plain, he had.

Whatever ability he had for heavy work at age 56

was lost to him, but that would not, in the

ordinary course of things, in his case, have led to

any form of financial loss.

And so when one come

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to assess damages there would be simply a notional
allowance in that regard.

TOOHEY J:

Up to retirement, I suppose the answer in part is

that alternative employment, having decided to
throw in his job and do something else, there is no
evidence to suggest that he would have earned any
more, and on the face of it he would have earned
less. It is only, I think, when you get to the post-retirement situation that you then perhaps
look to alternative forms of employment in which he
may have engaged, and absent any evidence, what
does the court do?

MR GRAY:

If the Court pleases, the court is left to do the

best it can on inadequate material, and obviously
the question of post-retirement earnings is an
extremely difficult area in which to have a
framework absent some special circumstances.

DAWSON J: Are you entitled to loss of earning capacity if,

in fact, you would have retired and not obtained
alternative employment after retirement?

MR GRAY:

In our respectful submission, the proper finding

would be that you have suffered a loss of earning
capacity. If the particular finding was that you
are unlikely to have, in the ordinary course of
events, used that capacity in any way, then it
would follow that any assessment of loss that
followed would just be nominal. There would be a
secondary finding required, namely, what was likely
to happen in regard to that earning capacity,

whether it would have been put to use or not. If
the answer is it would not have in a particular
case, then purely a nominal award would follow.

DEANE J: Except one gets the impression, reading the

judgments, that the case was fought on the basis
that the issue was whether your client retired
because of whatever the relevant wording is, the

accident injuries, or whether he would have retired
anyway.

MR GRAY: That was undoubtedly the primary focus and

obviously where the major loss was to be found, but
the Court will find that there was evidence led as
to what in particular the professor had tried to do
after he retired, in fact, and evidence led as to
what he had achieved and the inadequacy of that
achievement.

DEANE J:	What was said about that in the judgment?
MR GRAY:	Shortly put, the professor said that he had

attempted to - -- -

Medlin(2)	10/3/94
DEANE J:	What was said about that in the judgment?

MR GRAY: Nothing, nothing at all.

DEANE J:	Was an argument put in relation to it?
MR GRAY:	The arguments were put in this way, that the

professor had suffered a serious impairment to his

earning capacity at large. A particular
calculation was proffered by the plaintiff designed
to allow the Court to put a fairly precise number
on the value of that up to the date of otherwise
retirement and to compare that with some benefits
that he had received by early retirement, and the
judge has done that calculation.
It was put, I am advised, that that

information was put forward as a guide to what the
judge might assess in regard to the overall claim

for loss or incapacity. The difficulty that was
confronted was that the trial judge in the
appeal court took the view that there had been no
loss of incapacity established. So that there was,
as it were, a fundamental difference at step one
that made it difficult to progress the further

debate. I am specifically instructed that the case
was put for an award at large and the calculation
that was proffered was designed to be a guide in
regard to a major part of that.

TOOHEY J:

Mr Gray, the notice of appeal asks that the

assessment of damages be increased to such amount
as the Court deems just. Are you inviting this
Court, if it is otherwise minded to allow the
appeal, to make the assessment itself?

MR GRAY:

If the Court pleases, if that was appropriate it

could be done, yes, otherwise the matter be
remitted. If I can indicate to the Court very
shortly what are our submissions in that regard.

In very broad terms, the judge has assessed the
losses up to the date of retirement of the order of
$150,000. That is a pre-trial component of
approximately $30,000 and a post-judge's trial
component of $120,000. In addition to that we say
there needs to be a further allowance for a head of
damage, namely loss of earning capacity post-
retirement.

TOOHEY J:

I am sorry, could you just go back one step and

identify the heads of damage to which those amounts
were reparable?

MR GRAY:

There was a claim calculated dealing with loss of

earning capacity from the period from the date of
the accident to the date of ordinary retirement,
at 65. In that regard, the learned judge said that

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he would award damages - in regard to that loss of
earning capacity, he would allow something in the
order of $150,000; the precise figures are in his
reasons.
His Honour assessed, through a fairly

complicated process, bringing into account some
other benefits that came from early retirement, an
amount of approximately $30,000 being the loss
before the trial before His Honour, in 1990. He
then assessed the losses that would flow between
that time and the time of retirement at $130,000
and that second figure, the $130,000, included an
adjustment for a loss of improved pension had he
continued through to 65.
So if one was to simply take the loss of

earning capacity, past and future, in regard to
that period, the judge has come up with a figure of

$150,000. One might argue about it but it is

obviously about the mark. But what the judge has
not done is to allow anything in regard to loss of
earning capacity post-retirement.

DEANE J:

Was he asked to, or was the case conducted on the

basis, without the accident his earning would have
finished, for practical purposes, at 65 and that is
all that you need worry about?

MR GRAY: No. If the Court pleases, if I could try to be

quite specific. I am instructed that the case was
presented on this basis; that there should be an
award of general damages for loss of earning
capacity this man suffered without any suggestion
that it stop at 65. For the purposes of putting
information before His Honour against which
His Honour could make that assessment, the
calculation was confined to a period that ended at
age 65. It was simply left that way and His Honour
was not specifically asked to allow, for example, a
further $50,000 for post-retirement loss of earning

capacity. A specific submission like that was not
put, rather, it was left in the generality.

GAUDRON J: Without evidence of retirement earnings for

people in similar positions or the like? Post-
retirement earnings?

MR GRAY:

No, there was no evidence of retirement earnings.

There was evidence of impairment of earning
capacity post-retirement which I will take the
Court to later, but there was no attempt to couple
that to any specific dollar amount other than to
say what one could infer from the evidence that was
in about the university salary and of emoluments.
It was simply left at large to do the best that
could be done with it.

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DEANE J:	Or to do anything
MR GRAY:	Or to do anything with it, yes.

DEANE J: Normally in these cases one works on the basis

that if somebody wants compensation in respect of
or by reference to a period after ordinary
retirement he leads some evidence about it or she
leads some evidence about it.

MR GRAY: There was evidence that there was impairment.

There was no evidence against which one would say,
for example, that an emeritus professor delivering
lectures could earn so much a lecture, or in
refereeing journal articles could earn so much.
There was no evidence of that sort at all.

GAUDRON J:

Or that having retired he is incapable of doing

it anyway.

MR GRAY:	Were he fit he could do tasks of that sort.
GAUDRON J:	Or that the injuries prevent his doing tasks of

that sort in his retirement.

MR GRAY:

Yes, the evidence was that he had attempted to do

some post-retirement work. He had wished to go on
supervising some post-graduate students, and he

could not do so. He tried and could not. He
published some material and he expressed himself as
satisfied with the quality of it, but he could not

simply publish as much as he wished. He was due
to, I think, attend some seminars and could not
deal with that.
So in the circumstances, if the Court pleases,

our case would be there should be an allowance in
so far as there is a lack of evidence that was put
forward by the plaintiff appellant that will
obviously go to tending to a modest allowance

rather than a more expansive allowance. So the
inadequacy of information about the precise dollar
value of those types of activities must resound
against the plaintiff, and accordingly the award
would be more modest, but there would still be an
award.
I am instructed that the case was conducted in

a way that left that open, but that the trial judge
and then the appellate court were not even
interested in taking the first step of considering
loss of earning capacity. In fact, the approach in
the court below, we say, was to confuse loss of
earning capacity with loss of earnings, and out of
that confusion, unfortunately, the case did not
develop in the way we say it should have.

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McHUGH J:	The question of his retirement only went to mitigation uf loss, did it not? The Full Court
seemed to think that it is the beginning and end of
the whole question of loss of earning capacity.
MR GRAY:	We respectfully adopt that position, and

essentially we say that both the trial judge and,
in particular, the Full Court just simply went off on the wrong track. When one comes to analyse the
reasoning, we would respectfully submit that it is
superficial and involves errors of law and fact.

McHUGH J:

If you tried to value this man on the wages

market with his problems, it seems to me on the
evidence that you could only come to one
conclusion, that he was less valuable as a lecturer
in philosophy or a professor of philosophy than he
was before the accident.

MR GRAY:

Indeed, and if one adopts that pragmatic test, the

answer is that he has suffered obviously a loss and

he has got nothing for it. Can I indicate to the
Court how it is that the Full Court - - -

McHUGH J:

Then the question arises as to whether or not his retirement was unreasonable so that he has not

mitigated his loss, that he could have stayed there

and earned the money that he could have otherwise

earned if he had been fully fit.

But that is a

matter on which the onus is on the other side

really.

MR GRAY:

In fact, he retired in accordance with the advice

of his orthopaedic surgeon. He went to the
orthopaedic surgeon and said, "I've got this
problem, can you refer me to a pain clinic?", and
the orthopaedic surgeon's advice - and this is in
evidence - was, "That's not your answer, you'd be
best advised to retire.".
Then, if the Court pleases, what in fact

happened was that he wrote the long letter that is
in the appeal book in May 1987 saying that he
wished the university to consider retiring him on
the ground of invalidity and then set out all the reasons for that. Then, in December of that year he, in fact, went on sick leave and he stayed on
sick leave from December 1987 until June 1988 when
the university accepted his request that he be

retired on the grounds of invalidity. The
university suggested to him that he stand down from
his professorial position and take on a reader's
position and his answer to that was to thank them
for the offer but to say that would not resolve his
problem. His problem was he could not attend to
the duties of lecturing and research and
supervision and he would have that problem as a

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reader as much as a professor. So that adjustment
would not help.

DAWSON J: Can I put an academic question to you:

if I were

to retire tomorrow with no intention of doing
anything and I were injured, could I get any
recompense for loss of earning capacity?

MR GRAY:

If the Court pleases, we would say that in that

circumstance there would be a loss of earning
capacity and what the court would have to do is
assess whether the then intention not to do
anything was long-lasting or whether Your Honour,
within a short space of time, would become bored
with doing nothing and wanted to -

DAWSON J:

No, assume I was not going to do anything and

that was that.

MR GRAY:	At all?
DAWSON J:	No.
MR GRAY:	If the evidence was that, in fact, there was going

to be no attempt to exercise any earning capacity
at all then there would have been a loss of earning
capacity but it would be productive of no damages.
But conceptually the loss is there.

DAWSON J: Why should I not get it? If it is the actual

physical loss of capacity which you are
compensating, why should I not get it even if I do
not intend to use it?

MR GRAY:

In a sense it would depend on how the other

general damages were assessed but, if the Court
pleases, we would say that - - -

DAWSON J: But I have lost it.

MR GRAY:

Yes, but

McHUGH J:

I would have thought, having regard to your

written submissions that you would have had to have
said, "Yes", because you were relying on Van
Gervan, and that line of territory.

MR GRAY:

To take up Your Honour's theoretical question, one

would say that the injuries had created in you,
through that loss of capacity, a need to have the
results of that incapacity replaced to you and it
is that need which would be the subject of

compensation. But in that particular case, in that
particular theoretical case, there would not have
been, because it would not have been exercised, a
need for money.

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McHUGH J:

I do not know what the real legal theory is but

the practical theory, when I used to do these
cases, and do plenty of them, was that wages was
simply evidence of what your loss of earning
capacity was. What was valued was the asset
itself, the earning capacity.

MR GRAY:

Indeed. Yes, and that theory is well demonstrated

through the cases, but in the light of, for
example, the remarks of Chief Justice Bray in Beck
v Farrelly, and in the remarks of this Court in
Griffiths v Kerkemeyer and Van Gervan, conceptually
the best analysis we would suggest is that when
there is a loss of earning capacity, what in fact
is created is a need for the otherwise ..... of that
capacity be provided. Analysed in that way, the
wrongdoer cannot, for example, claim a benefit from
the benevolence of an employer. If an employer,
out of charity, says to the injured party, "Look, I
know you cannot do the job satisfactorily, but I
will pay your wage anyway out of charity", why
should the wrongdoer pick up the advantage of that
charity?
We say, if the Court pleases, that the logic

in the two areas of earning capacity should be the
same and the approach of the court should be the

same. That, of course, in this case is an

alternative argument. Our primary argument is that
plainly the injuries and the pain was, to apply a
common sense test, a cause of the retirement on the

grounds of invalidity. Then in the alternative we
say, if we are wrong in that in any event, Graham v
Baker should be reviewed by this Court and the approach to loss of earning capacity should be brought in line with the loss of other capacities -
to care for oneself, for example.
I have strayed a little in the argument, if

the Court pleases, but we do treat the question
about Graham v Baker and the question of Van Gervan

alternative, if the Court is with us, that the as being plainly an argument to be put. But, as an
court below applied the wrong test on causation and
that a cause, to pick up the wording of March v
Stramare and Bennett v Community Welfare Department
case, was whether the defendant's negligence was a
cause from a common sense point of view of the
decision to retire and hence the loss that
followed, and on that ground alone this Court would
interfere.
If I may come back for a moment to Your Honour

Justice Dawson's theoretical question. We say that
when one was analysed in that way, Your Honour
would have had a need created but in that
particular circumstance, because there was no

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intention to exercise that capacity, the need would
be met by a nominal award. If the Court pleases, I
had proposed to identify in the decision of the
intermediate Court of Appeal the particular errors
that we identify.
Could I go first to page 268 in the appeal

book and deal with the question of loss of earning
capacity. At line 30 Justice Millhouse speaking
for the court, and Justice Moore and
Justice Bollen:
The appellant has shown no loss of earning
capacity as a result of the accident.

And if one goes back a page to 267 at line 28,
His Honour said again:
Has the appellant continued in his

position until December 1992 as he apparently
could have done then he would have suffered no
loss of earning capacity.
We say in that sentence His Honour really has

confused loss of earnings with loss of earning

capacity. He might have said, "Well, the appellant
has loss of earning capacity but because he was
able to continue on and draw his salary, therefore

he did not suffer a loss of earnings". But
His Honour there has confused the two concepts.
So it is at that time that we say that the Full Court erred, that the Full Court should have
found that there was, in fact, a significantly
impaired loss of earning capacity, and then come to
consider what should be done about the damages to
be awarded for that demonstrable loss.
Now, if the Court pleases, in the written

submission, which is perhaps a little fuller than
usual, we have set out under the heading "critical

book reference, what we have identified as being findings" with a footnote reference to the appeal
the critical findings that we would invite this
Court to have account of, and in particular at
page 4 - - -

DEANE J:

Mr Gray, before you do that, can you try to

identify the precise finding?

MR GRAY:

Yes.

DEANE J: Because on one approach we are in an area of

concurrent findings of fact. I follow what you say
if the answer to Justice Dawson's question that you
apparently give in correct, and that is that even
though the evidence establishes that as a matter of

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fact you have not, and will not, lose a penny by
reason of the injuries caused by the accident, you
are none the less entitled to be compensated for
loss of earning capacity by reference to some
theoretical basis.
Now, assume against yourself that that answer

is not ultimately successful, what is the finding
in the Full Court? Is it that his predominant
reason for retiring, in the circumstances that
existed, was that he wanted to devote himself to
creative work or is there implicit in that a
finding that even if the accident had never
occurred he would none the less have retired,
because they are two quite different matters.

MR GRAY:

Yes, well one has difficulty in finding the

detailed matter in the Full Court judgment because

they are simply not there. The Full Court has
approached the matter on this very narrow question
about was his decision to retire pre-eminently
caused by the injuries.

DEANE J:

Even if one were to adopt the "but for" test, that

finding does not answer the "but for" test. Well,
it does not answer it against your client.

MR GRAY:

No.

If the Court pleases, can I answer

Your Honour this way: the trial judge specifically
found that the professor had a number of reasons to
retire and the professor certainly asserted that
his primary reason was because of the pain

following the disability. The trial judge said,
"Well, there are a number of mixed reasons here,"
and the trial judge then applied the pre-eminent
cause test.
He asked, "What was the pre-eminent cause?"

He found that the pre-eminent cause was to free
himself of university responsibilities so he could
do his research.

When the matter got to the Appeal Court, the

Appeal Court said that approach they adopted, and
they do that at page 268, at line 10:
The learned Trial Judge found:-
"The pre-eminent reason why -

et cetera, and then at line 25:
Based upon the appellant's own letter the finding is entirely justified.

So, one has simply the Full Court adopting the
trial judge's reasoning, and so to put it into its

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context, the court has a finding that the professor
had a number of reasonings for retiring and, we
say, plainly one of those was the consequences of
his injury.

TOOHEY J: But, the Full Court finding really goes further

than the trial judge's, does it not?

MR GRAY:	Yes.
TOOHEY J:	The trial judge says, the pre-eminent reason was

so that he could devote himself to research and
creative philosophy. That is on page 268. But if
you drop down to line 25, the Full Court, having
referred to that part of the judgment says:
The appellant's retirement was not

because of the injuries ..... It was for other
reasons.

In other words, it seems to exclude. It is not a
question of pre-eminence of cause, but it just
seems to exclude the accident and the injuries as
playing any part in a decision to retire.

MR GRAY:

Yes, Your Honour is quite correct, they have gone

further. But, we say, to adopt a pre-eminent
reason test is wrong, that the test to be asked is,
"Was the defendant's negligence a cause of the
loss?" The intermediate question is, "To achieve
that, was it a cause the decision to retire?" If
the Court pleases the learned trial judge made a
finding - chronic pain; made a finding that from
the plaintiff's point of view his intellectual

capacities were restricted. He could not engage in
intense concentration required to attend to his
tasks. There is a very long letter that explains
exactly the professor's reasons, and in it he is

saying, "I cannot teach and research." The court
rather has assumed that his research is not part of

his job. In terms of the Full Court's approach to it we identify page 268 and those passages read, and
page 269 as identifying the error, but to

understand the background to it, and because the the findings one has to go back into the trial judge's findings to understand what has happened. That matter is addressed in the outline of
argument, really starting at page 4.
The nature of the injury is identified in

paragraph 8 with appropriate references, and at paragraph 10 is the trial judge's finding about osteoarthritis and then the consequent hip
replacement operation. Paragraph 12 on page 5

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picks up the description of chronic pain and then

its intensity in proportion with activity. Then
paragraph 13 summarizes the findings of the trial
judge with appropriate references and there are
specific findings about pain, its intensity and the
effect of it.
In a sense, to say if one is woken every night

by pain the consequent tiredness of that is
obviously going to sap one's ability to intense
concentration. In particular, there was evidence
and clear evidence that there was impairment of the
ability to concentrate and there was a sapping of
intellectual energy and the judge made such a
finding at page 250 and, in particular, over the
page, the last of the bullet points, that the pain
reduced the appellant's capacity to concentrate at
the intense level required and interfered with his
intellectual energies and there was again a finding
by the trial judge in that regard coupled by some -
not only the professor's evidence, but also the
head of discipline, Dr O'Hair gave evidence
specifically to that effect.
Then at point 14 the evidence as to the effect

of the pain on the performance of duties is
asserted and the footnote picks up some examples of
that. If I might just introduce one aspect of that
to give the Court an example. At pages 49 or
thereabouts in the appeal book the professor
described what happened about his lecturing. After
his injuries he came back and attempted to resume
his lecturing. At page 48 he describes the
lecturing and he lectured according to something

called the Smart and Martin technique. A Professor
Smart and a Professor Martin had developed a
technique for lecturing in philosophy and it was
described as being demanding and intense. It was
more like a seminar than a lecture. It required
the students to participate in the lecture to bring
forward ideas for discussion. It obviously called

on the lecturer to be taking on the students' ideas and allowing a discussion and to teach through that
method.
When the professor came back, at the foot

page 48 he:
found it impossible to keep up with the
demands of that course.

He could not do it and what he did was to change
the technique of lecturing and he then adjusted his
lecturing technique to deliver the appropriate
words to a passive audience, and that he could cope
with but his evidence was that if he did that, that
is that adjusted lecturing technique delivered to a

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passive audience, the task of preparing that and
delivering that was all he could cope with.
He attempted to continue with his post-graduate supervision and that caused problems.

That is at page 49, lines 16 to 20. He identifies
that the graduate teaching involves concentration
and he just did not have the energy for that level
of concentration. Ultimately he had to pass over
his post-graduate students to other people,
something he wished to continue, even post his
retirement, and could not do it.
Perhaps just to identify the way he put his

case in regard to his incapacity, if the Court
could turn to page 196 of the appeal book, there is
a lengthy and, with respect, lucid letter that the

professor wrote when he really exposed exactly what
he was feeling and thinking and this letter came
into evidence and was specifically adopted by the
professor, and came in by consent, at pages 51

and 52. The Court will see that this letter is
addressed to the Vice-Chancellor,
Professor Abrahamson, and it starts out, and I will
just read some discrete parts of it:
This letter is to request that I should

be retired on the grounds of invalidity as
from 31st December 1987. It is my wish to be
released, on these grounds, from all paid
services to the University. Nonetheless, I
propose, granted the permission of the
University, to continue supervising my current
graduate students.

He then goes on to articulate his reasons and, at
line 25 on page 196, he identifies as the primary
reason the severe injury to his hip. At the foot
of that page he goes into the sensations and his
sleep impairment. Over the page he identifies an
earlier injury that he had overcome but was

exacerbated by this road accident and he then came,
at the foot of 197, to discuss his problem with
Professor Hancock who was the then Vice-Chancellor
and:
come to some firm decisions by the end of
June -

1987. Over the page -
I now know that I cannot do my job

properly.

Then he goes in to explain why and at line 17, he
says:

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My main immediate problem is that I

cannot combine research with teaching. I am
teaching competently enough -

that is the revised lecture technique -
though I think not brilliantly. Competently
enough from day to day ..... This uses up all
the energy I have available. Non-teaching periods of the year are mostly consumed by teaching - either preparation or recovery.

Then, at line 32:
Less centrally, perhaps, I feel that I am

not able to give the kind of leadership that
should come from a professor.

He goes on to discuss that. At the foot of that
page:
Solving these problems -

that is the problems of teaching the modern
student -
will take much new thinking and hard work in

the Discipline. I am regularly too tired for
that thinking and hard work.

Then, over the page, he just simply, in the first paragraph, does not have the ability to cope with
the work required "on the radical revision of
teaching methods''. At line 15:
I don't have the energy or resilience to adapt.

And then, at line 30:
The central consideration is my present

satisfactorily and the fact that this and persistent inability to do my job inability derives from poor health. It was
suggested to me by Professor Hancock that my
problem (and the University's) might be solved
if I were prepared to step down to a
Readership. This might have seemed a
reasonable suggestion in the context at the
time, when it looked as though the main
question was my ability and willingness to act
as head of discipline.

That is get rid of the administrative duties.

It is irrelevant if the main question is what
I now take it to be, namely, my ability to

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perform both the teaching and research
functions of an ordinary academic.

So although the trial judge and the

intermediate court took the view that he retired
for the reason to pursue his research, research was

one of the duties of his job.

McHUGH J:

I was going to ask you that. that research and publication, for example, are

Is there evidence

expected of those in the Department of Philosophy?

MR GRAY:

No, there was not evidence as directly as that.

There was evidence such as comes from this letter,
and we say is axiomatic, that that is part of a professorial position. Why would one take on a
professorial position with the - - -

DEANE J: Well, one might hope that once you have a

professor reaching this age, it is not a general
self-evident proposition.

MR GRAY: There was evidence that professors of philosophy

in fact go on to 65.

DEANE J:

I am not suggesting they do not go on.

I am

suggesting in some cases the research and
publication seems to dry up.

MR GRAY:

Well, in this particular case not so.

The

professor, in fact, had some particular ideas he

wanted to develop. He describes it as being a
creative period, the judge so found, and in fact
post-retirement he did do - - -

DEANE J: Justice McHugh was asking you about the requirements of the job rather than what

Professor Medlin was claiming.

MR GRAY:

The answer is that there was not a job

specification put into evidence. There was not

some evidence saying that a professor is expected
to do this, that and the other, but there was this
description of the research function of the job in
this letter that went in by consent, and
effectively it was, we say, not in issue.
However, the court appears to have said,

"Well, because he wants to pursue research and
cannot do that with teaching, therefore he should
stay on and teach and not do research." That was
the letter that went with, we would say, a lucid
identification of the reasons and placing the
effects of the accident, plainly, very much as the
cause; certainly a cause and certainly, we say,
satisfying - when one has the injuries - and his
orthopaedic surgeon's advice that he should retire,

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the ''but for" test would be satisfied but certainly

also the March v Stramare test would be satisfied.
And by going back to one of those labels
"predominant cause", like proximate or whatever,
simply put a gloss on the correct test and
therefore fell into error.
If the Court pleases we do say this letter is

important because it was a letter requesting that
the university retire Professor Medlin on the
grounds of invalidity. It was then followed in
December by six months of sick leave followed by
his retirement, when this letter was accepted, on

the grounds of invalidity. So against that
background it is very very difficult to say that,
as the court said, his retirement apparently is for

other reasons. The facts, we say, are so strong
that the Full Court simply got it absolutely wrong.
If the Court pleases, at page 7 in the outline there is, picked up in paragraph 16, a statement by the trial judge that:
there was no evidence that the University
believed that either his teaching or his
administrative skills were unsatisfactory, and
there was no evidence that the Appellant was
not performing his duties to the satisfaction
of the University.

We say that that assertion of no evidence, or that
finding of no evidence, is just wrong and we have
set out in paragraph 17, and a footnote of the
fuller text, the evidence of Dr O'Hair, and
evidence that we say was not challenged in
cross-examination, and Dr O'Hair was the head of
the discipline, charged with the administration of
the discipline, and he gave the clearest evidence
that it was becoming increasingly unsatisfactory,
from his own point of view, and he goes then to

deal with the graduate and under-graduate teaching,
and he goes, the lecturing had been less than
satisfactory, difficulty in concentration, and
Dr O'Hair went on to talk about there being matters
of concern being expressed to him by other fellow

staff members and students. So there was that
evidence.
Then, if the Court pleases, there was the

evidence of Mr Hayes, the orthopaedic surgeon at
pages 215 and 216, two short reports that came in
and Mr Hayes gave oral evidence as well. This is
in November and December 1987 and it is leading up
to his going on to sick leave for six months.
Mr Hayes, at 215 describes the injury, and then in
the penultimate paragraph at line 35:

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I believe his time away from the rigours of teaching etc would stand him well in the long
term and write to support his application for
sick leave.

Over the page at 216 line 15:
Following further conversations with
Professor Medlin, I would like to state that
as a result of his various injuries and
orthopaedic problems, he is unable to carry out his normal duties and at times, will be
unable to work at all.

That was the opinion of his treating orthopaedic surgeon, and in the evidence that is taken into the
judgments, of course, are the passages where
Mr Hayes specifically said that he would be advised
to retire because of his injuries. That is
identified in the Full Court's reasons at the foot
of 265 and the top of 266. At the foot of 265,
Justice Millhouse at line SO, and this is at the
end of Mr Hayes' evidence in-chief and then
questioned by counsel examining:
Q. Did you advise him at that stage that
rather than look at treatment along those
lines -

that is, going to a pain clinic
it would be better for him to retire?
A. Yes, I think that there is no doubt
Professor Medlin was a very fit person but he
was getting a lot of symptoms which were
irritating him and interfering with his
ability to work."

Justice Millhouse said:

Yet that is not direct advice to retire.

And Professor Medlin at page 52 gave in oral
evidence really in amplification of the matters in

the letter, his reasons for retiring. At lines 19
to 28, dealing with 1987 and that letter, he said:
Before I discussed this matter with
Professor Abrahamson, which happened before I wrote the letter, I consulted Mr Hayes and I said to him that I was suffering constant pain from the hip joint, that in fact it was
disordering my life in such a way that I felt
that unless I did something about it that I

couldn't continue in my work. I asked
Mr Hayes at that time if he could perhaps get

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me into a pain clinic, and this was a rather
desperate move on my part because I didn't
want to be hanging around doctors, but I asked
him if he could do this and his reply was that
he would rather I retired on invalidity
because this would give me space to back off
when I was in trouble because of pain and
space to work at my own rate when I could and
not when I couldn't.
Faced with a situation of chronic pain that

was going to worsen to lead to a hip replacement,
faced then with seeking relief from pain and
inquiring about a pain clinic, his treating
orthopaedic surgeon - described by
Justice Millhouse as an eminent orthopaedic surgeon - was that, yes, he should retire because
of pain. So we add that to Dr O'Hair's evidence
that there was evidence known to the university,
because the university then accepted Mr Hayes'
opinion and put him on sick leave and then accepted
the letter that he be retired on the grounds of
invalidity.
We say, if the Court pleases, that the third

evidence is in the letter in which Professor Medlin
describes having discussed the matter with the
vice-chancellor and identifying the problem and the
universities, and the vice-chancellor suggesting
that he stand down from his chair and take on the
job of a reader, would that help? So, plainly the
university was recognizing that they had a problem

too. So we say that the judge's finding - and that
finding was adopted by an intermediate court of
appeal at page 266 - cannot stand. At 266,
line 20, there starts a passage:
During his argument we put to Mr Cameron that
there was no evidence of the attitude of the
University regarding the appellant's capacity

or incapacity. He answered that

Mr Greg O'Hair, Reader in Philosophy and a
close long-time friend of the appellant had

given evidence about that. So he did but what
Mr O'Hair said was his personal opinion: it
cannot be taken to be the attitude of the
University.
He was the head of the discipline at the time

and there were things that he had observed, and
there is no reference being made to this other

material. Then the Full Court went on to discuss a
Dr Wright, and Professor Medlin had a high opinion
of Dr Wright, and Dr Wright wrote in November 1984
- this is really anecdotal historical matter - that
at that time:

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it would be quite contrary to his interests to
encourage him to consider retirement -

That is really ancient history to this issue. But
then:
More significantly, on 7 March 1988 he wrote:

There is a short extract from Dr Wright at that

point. The fuller text of that letter is found a
little earlier in the book at page 244, and what
Justice Millhouse has quoted is the last of the
three paragraphs. If one goes to the opening
paragraph of page 244:
In Professor Medlin's case, there is no
evidence that, despite his difficulties, he is
not performing his duties to the satisfaction
of the employer. Should evidence become
available that he is not adequately performing his duties, it would first be a matter for his
specialist to certify -

That in fact happened. Mr Hayes gave that
certification:
as to whether the stated medical condition is
likely to be the reason for his acknowledged
poor performance.
Mr Hayes gave the opinion that he should be on

sick leave, and the university accepted it, and
then he goes on to say:

A complicating issue -

in regard to pain and then, finally, he comes up
with a conclusion saying:
There is no evidence -

But, plainly Dr Wright was really saying it was a
matter for the man's specialist to give the
opinion. Yet, the Full Court has ignored
Dr Hayes' - has read down Dr Hayes' evidence, has
read down the letter of reasons, and has taken one
paragraph of Dr Wright's letter out of context.

TOOHEY J:	Did Dr Wright give evidence, Mr Gray?
MR GRAY:	No, he did not.
TOOHEY J:	Or did his letters go in by consent?
MR GRAY:	His letters went in, and he was not presented.

Now, if the Court pleases, we say that those

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findings cannot stand, that is, that there was no
evidence on those topics.
At page 8 to 9 in the outline of argument we

summarize our submissions in regard to the
diminution in earning capacity and, in particular,
attempt to articulate the conclusions we invite

this Court to draw. We have identified each of his
essential components of his duties, teaching,
research and supervision, and then articulated what
we say is the impairment that relates to each of
those.
Our argument is, it does not really matter

whether the university considered that his
lecturing in a revised way as being a satisfactory
performance of his job. That is not the issue, he
plainly did suffer this loss of earning capacity.
I do not know that I can add to that written

submission, and take the Court's time up. The
matters, again, are footnoted, either in that
discrete passage, or earlier under "Critical
Findings".
At page 10 the argument and submissions in regard to the causation error are addressed.

Could I just introduce that material? I have
identified in the intermediate court's reasons the
errors at page 267 and, in particular, if I could
adopt Your Honour Justice Toohey's comment that in
fact the Full Court went further than the trial
judge had gone on this question about reason. But,
the Court should also have regard to an earlier
passage at page 252 in the judgment of the trial

judge. The trial judge found at line 10:
His reasons for retiring early were mixed but
the pre-eminent reason was his desire to be
able to devote as much time as possible to
research and creative philosophy.

The finding that the reasons were mixed

necessarily, in this case, involves a finding that
the other reasons were pain, because that is the

only other body of reasons that comes forward. So
it is a case of mixed reasons and we say that on
any common sense point of view the pain here was a

cause. So on the trial judge's finding about mixed
reasons, and applying a common sense approach, we
say that error has occurred which has then been
perpetuated in the Full Court.
When one looks to see why error has occurred,

the answer is the trial judge and the Full Court
put a gloss on the true test by posing a pre-

eminent cause test. So that, really, is the

argument on causation. One would need to add to

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the references, of course, to March v Stramare the
reference that this Court is well familiar with of

Bennett v the Community Welfare Department. But
perhaps I could just provide that reference:
(1992) 176 CLR 408, and in particular the joint
judgment of the Chief Justice, Your Honour
Justice Deane and Your Honour Justice Toohey at 412
and 413; Your Honour Justice Gaudron at 418 and
419; and Your Honour Justice McHugh at 428 where
March v Stramare is picked up and applied.
I had not proposed to read from that, the

Court is well familiar with that decision, but
March v Stamare and Bennett, of course, are the two
most recent statements of this Court on the issue

of causation. I can make available copies of that
decision, if the Court wishes.
Under this particular section of causation, if

the Court pleases, we go on to develop the argument
in regard to post-retirement damages and that
commences from paragraph 30 through to the end of
that section. Again, I do not wish to add to that,
if the Court is content that I leave that in the
way in which it is put in the written outline.
Can I turn then to the issue concerning Graham

v Baker. The Full Court do not refer to that issue

at all. We say that is really encapsulated in that
passage at 267 that I read to the Court earlier
when Justice Millhouse wrote:
Had the appellant continued in his

position until December 1992 as he apparently
could have done then he would have suffered no
loss of earning capacity.

His Honour is really saying, presumably, that is
because there was no loss of earnings. But
Justice Debelle, the trial judge, dealt with the

point specifically at page 251, line 35:
He will be entitled to recover only if he can
prove a diminution in his earning capacity
which has been or may be productive of
financial loss -
citing Graham v Baker.
In our respectful submission, Graham v Baker

should be reviewed by this Court and the dicta and
the principle there rejected.
We start that argument by addressing the South

Australian Full Court decision in Beck v Farrelly,
(1975) 13 SASR 17. This was the first of the cases
in Australia to introduce the claim or the

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allowance for voluntary services and was followed
by Griffiths v Kerkemeyer and was discussed by this
Court in Griffiths v Kerkemeyer.
Chief Justice Bray at page 23 addresses the

issue, line 3:
However, the question which may and which

almost certainly will arise in the future is,
how is Graham v Baker to be reconciled with
the new principle in Donnelly v Joyce? If the
loss of earning capacity is the plaintiff's
loss, as in one sense, of course, it is, and
the question from what source the plaintiff's
need for his wages has to be met is, as far as
defendant's liability is concerned, irrelevant
(Donnelly v Joyce, at p 480), then why should
it make any difference whether the lost wages
have been supplied pursuant to a pre-existing
contract of service with the employer or,
indeed, in any other way?

Then, moving to the foot of the page:
These conundrums will all have to be

resolved hereafter. By this decision we
accept the principle of Donnelly v Joyce. It
will have to live with the principle in

Graham v Baker which is binding on us. The
precise mechanics of the symbiosis can be left

to some future Court. The common law has
never made a logical coherence its overriding
value, though, for myself, I think that the
Court should strive to achieve it when that can be done consistently with authority and
with justice. It does not, I think, require
us to reject the principle in
Donnelly v Joyce.

So, Chief Justice Bray and Justice Mitchell
agreeing - her reasons - took that step. That came

to be reviewed -

DEANE J:

Where did Chief Justice Bray identify what he said

was the principle laid down in Graham v Baker?

MR GRAY:

He has not explicitly identified the precise

passage. We say that it is in that opening
paragraph on page 23 and - - -

TOOHEY J:

He does, to some extent I think, Mr Gray,

although I am not sure relevantly for your
purposes, at page 22 about 6 or 8 lines from the
bottom.

MR GRAY:

Yes.

If the Court goes to the footnote to Graham v Baker, 106 CLR, the Chief Justice identifies

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page 347 as being the source of concern. The
passage that is attracting His Honour the
Chief Justice's attention was at about eight lines
down:
To be more precise, however, an injured
plaintiff recovers not merely because his
earning capacity has been diminished but
because the diminution of his earning capacity
is or may be productive of financial loss.

We would say that undoubtedly that is the sentence
the Chief Justice had in mind.
This Court came to consider this new approach

to damages in Griffiths v Kerkemeyer, 139 CLR 161
and, in particular, that matter came straight to
the High Court from a single Judge's decision, and
essentially in Griffiths v Kerkemeyer the Court was
reviewing Donnelly v Joyce and Beck v Farrelly.
There was no intermediate court of appeal in

Griffiths v Kerkemeyer. The Court, as is well
known, took the view that Beck v Farrelly was
correctly decided and, at page 165, Justice Gibbs,
as he then was, addressed the difficulty that the
Chief Justice had pointed out in these terms at about point 7 on the page:
In Beck v Farrelly Bray CJ pointed out the
difficulty of reconciling the principle laid
down in Graham v Baker with Donnelly v Joyce.
In my opinion it is not right to say that a
plaintiff who suffers injuries that create a
need for medical or hospital treatment,
nursing assistance or pharmaceutical supplies
thereby necessarily suffers a loss that calls
for compensation by way of damages. I am of
course not intending to speak of damages for
loss of amenities or pain and suffering. In
my opinion, in cases of this kind also, the

plaintiff is entitled to damages only to the
extent that the need thus created is or may be
productive of financial loss.

Now, Justice Mason, as he then was, at page 194,
addressed the difficulty that Chief Justice Bray
had identified, at point 4 on the page:
As Bray CJ and Mitchell J have pointed out in Beck v Farrelly, the principle
enunciated in Donnelly v Joyce may pose some
questions in related fields, notably in
connexion with the decision of this Court in
Graham v Baker, but there is no need to
discuss them here.

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The next step in the development of this matter is
Van Gervan v Fenton, 175 CLR 327. There had been

the decision, in the interim, of Nguyen. In
Van Gervan dealing with a claim in respect of
gratuitous services, this Court clarified what was
the ratio in Griffiths v Kerkemeyer and that in
particular the passage I read from Justice Gibbs
represented a minority view, and in Van Gervan this
Court clearly stated that in terms of damages for
gratuitous services it was not necessary to show
financial loss. The correct characterization was
existence of need, and the fact that somebody had
gratuitously met that need in the particular case,
could not be bought to the credit of the wrongdoer;
the damages should be the market cost in the
ordinary case of meeting the need, assessed by the
market cost.

TOOHEY J:

Why do we need to get into this area of

discourse? Does Graham v Baker really present a
problem in this case? It speaks of loss of earning
capacity that can give rise to a claim for damages
where it is or may be productive of financial loss.

MR GRAY:

If the Court pleases, if one were to read down the

dictum in Graham v Baker those words "may be
productive of financial loss" to mean may or may

not, then there is no difficulty. But that is not
the way that the courts have treated that passage
at all, or for the way, for example, learned
commentators have treated it. In
Professor Fleming's book there is a long treatment about these problems and they have been the subject
of a lot of commentary, and the view has been taken
that that use of words in Graham v Baker did in
fact indicate that the claimant had to show -

TOOHEY J:

You mean there is a positive obligation, to show

what?

MR GRAY:

Either actual or likely financial expense or loss.

That is the way it has been treated. We do accept
entirely Your Honour's point that the words "may
be" do allow for that interpretation of the

principle in Graham v Baker to be read down. We
accept that and we are obviously quite content with

that. But if, in fact, the types of commentaries
that have been made about the meaning of that
statement by Justice Gibbs are the correct
interpretation, then we say it is wrong.
In a sense, to identify the conflict in

Griffiths v Kerkemeyer, the result in Van Gervan
necessarily involved the more stringent
interpretation of those words in Graham v Baker.
Otherwise there would not have been the point to be
reconciled.

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Your Honour is quite correct that this Court

in this case does not need to grapple with that
point, if it finds for us in regard to the
causation issue. This is an alternative argument.
If we are wrong in the sense that here there was earning capacity but it could not be said to be productive of financial loss, then the Court needs to deal with this argument explicitly. But on the other hand this case does present a very suitable vehicle to clarify the law in regard to Graham v
Baker to deal with the inconsistency that
Chief Justice Bray identified and that, with respect, the Chief Justice identified in Griffiths
v Kerkemeyer. This case does present an ideal
vehicle to clarify that.
Likewise, this case presents an ideal vehicle

to deal with this conceptual problem of economic
loss and loss of earning capacity. Again, if one
goes to the commentaries and Professor Luntz's
work, for example, one finds quite a long section
about this conceptual difficulty and the difference
between jurisdictions as to loss of earning
capacity and loss of earnings.
But, in our respectful submission, time has

taken its toll on Graham v Baker and the time is
now right for it to be said that it was wrongly
decided and cannot stand with the modern theory of
damages in Van Gervan. Otherwise, when one is
dealing with loss of capacity, whether it be
earning capacity or capacity to care for oneself,
there is a different approach in logic by the Court
to the assessment of damages.

DEANE J: Is there anything in the majority judgments in Van

Gervan which is inconsistent with the approach that
the measure of damages for loss of earning capacity
is an estimate of the actual financial detriment
which will, in fact, be sustained.

MR GRAY:

Yes, we say that the reasoning of the majority in

Van Gervan is inconsistent with that. The
reasoning of the majority in Van Gervan would
require a loss of earning capacity case, one to
identify first that the loss of earning capacity
created a need and that need is to be assessed
against appropriate market factors, which will be
salary ranges, and the wrongdoer cannot bring into
account the charity of a benevolent employer.

DEANE J: Without taking us to them, have you reference to

the pages which you say - if you have not, do not
trouble, Mr Gray?
We would invite attention in the judgment of

the Chief Justice, Your Honour Justice Toohey and

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Your Honour Justice McHugh, in particular 331 to
333, in particular concluding at page 333 point 5,
if I might read the short paragraph:
Consequently, it should now be accepted

that the true basis of a Griffiths v
Kerkemeyer claim is the need of the plaintiff
for those services provided for him or her and
that the plaintiff does not have to show, as
Gibbs J. held, that the need "is or may be
productive of financial loss".

DEANE J: Yes, there is a bit of a gap, though, is there

not? I mean, it does not automatically logically
follow that the approach in assessing damages for a
need created by the accident must be the same as -
I have put it the wrong way around - as the approach for assessing damages for loss of earning capacity.

MR GRAY:

Yes.

Your Honour is quite correct, there can be a

gap. Could we suggest that that gap is filled in
this way, that when one says there is a loss of
earning capacity one has to add that in consequence
of that loss of earning capacity a need is created

for wages. And that was the language that

Chief Justice Bray used in Beck v Farrelly. In
fact, in our researches this concept of need starts
in Donnelly v Joyce, is picked up by
Chief Justice Bray in Beck v Farrelly and then is
followed through in the approach in this Court,
principally by the Chief Justice in Griffiths v
Kerkemeyer through to modern doctrine.
In particular, Chief Justice Bray in pointing out the logical inconsistency in the two areas, the
Graham v Baker area, obviously has sought to
characterize loss of earning capacity in terms of
the creation of a need to enable the logic to be
tested.

DAWSON J:

I do not follow that.

If you take a person who

has got a lot of money and is not employed at all
and suffers an injury, you would say he recovers
nothing, or next to nothing, because his loss of

capacity does not create a need. On the other
hand, if you have someone who is out of employment
and he suffers exactly the same injury, it does
create a need and he is recompensed for that need.
Why is that not the same as saying that in the one
case it is may be productive of financial loss and
in the other it is not?

MR GRAY:

If the Court pleases, we say in both cases there

would be a head of damage, loss of earning
capacity, there would be a need created in both
cases - - -

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DAWSON J: But there is not a need in the case of a person

who does not need the money, he has got it anyway.

MR GRAY:

He might lose his resources and have to go and

work at some later time.

DAWSON J:	Then he gets the same, does he, as the man - - -
MR GRAY:	No, the Court would then have to assess what, in his case - - -

DAWSON J: If it assesses that he is not going to lose his

resources - - -

MR GRAY:

If it assesses that he is not going to lose his

resources then the Court would find - - -

DAWSON J:	Mr Packer, or someone.
MR GRAY:	In that particular case his need would be

satisfied by a nominal award.

DAWSON J:

Why a nominal award?

Why any?

MR GRAY:

Because he has, in fact, suffered a loss that then

does call for a consideration of what - - -

DAWSON J:

But he has not suffered a need, which is the way

you measure it.

MR GRAY:

He has suffered a need in a particular - - -

DAWSON J: He has not, he has not any need whatsoever.

DEANE J: It is going to lead to a rather undemocratic

assessment of needs, is it not? Or does the man on
$10,000 a week no longer recover for loss of
earning capacity by reference to the fact that he
can no longer earn the $10,000 a week that
otherwise he would have earned as a matter of

course? Would you say his needs are $10,000 a
week, but that of the coal miner, he has to live at
a lower level?

MR GRAY:

They both have a need for money at the level of

recovery dictated by their particular
circumstances. Their loss is an individual loss,
the qualification of their loss is individual.

DEANE J:	I understand what you say there.
MR GRAY:	The question that Your Honour Justice Deane poses

to me - - -

DAWSON J: It is a question of need, and the difference in

that and productive or financial loss, I do not see
what is the difference?

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MR GRAY:

The hypothesis Your Honour Justice Dawson poses

is, of course, one that raises a critical point.
We say that conceptually that in either case, if I
can say it this way, there is a loss of earning
capacity. In one case a need is created; in the
other case a need is created of a different type.
For example, a need that could be characterized as,
in the event of a loss of that capital, the need
then for wages.
At the instant time, the court might say,

"Well, there is no need at the instant, but there
might well be a need later," and the court had to
assess that, that possibility, that probability, in

making some award. Now, it would either be
nominal, according to the facts or it might be

substantial. I mean, if there had just been, for
example, if the entire investment was in the stock
market and there had been the recent crash thought
of, the court might be inclined to think, "Well,
there is a risk there and, therefore, something
more than nominal."
But, we say that, if the Court pleases, no

injustice will be done by adopting the needs
approach and the Van Gervan approach of loss of
earning capacity. In fact, it will resolve a lot
of difficult areas, for example, the partnership
situation - Your Honour Justice Toohey's judgment
in the Dal Zotto case, for example - when the
courts have grappled with what to do with
partnerships. If one is adopting a needs approach
analysis, a Van Gervan type of approach, those

problems would disappear. So, if I might, if the
Court pleases, just finish on that point by saying
that this is an alternative point but the case does
clearly raise, in that alternative sense, the
matter squarely for decision.
We have on page 16, in paragraph 45, made a

reference to the American authorities in this area.

I do not have those references copied in Court. I
will have them made available to Your Honours'
staff later in the day but, essentially, they are
contrary to the Graham v Baker dicta and allow for,
in American jurisprudence, a recovery, even though
economic loss cannot be shown in the particular
case. Although the authorities are at - the
supreme court, the authorities that we have grouped
there have been picked up in the more authoritative
texts in regard to the topic.
If the Court pleases, they are the essential

submissions we would put in support of this appeal.

DEANE J: Thank you, Mr Gray. Yes, Mr Walsh.

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MR WALSH: If the Court pleases, I should have given you

last night nine copies of my outline of argument.
I attempted to do so earlier this morning but was prevented but I do hand up nine copies of my
outline.

DEANE J:	Thank you, Mr Walsh.
MR WALSH:	If I may put in a nutshell the propositions that

we will promote during the course of my argument,
they are these: firstly that the overriding
principle of compensation is to put the plaintiff
back in the position that he or she would have been
had the injury not occurred. In other words, to
compensate them for what they have lost and that is
done as best it can be achieved in money terms and
because money is brought into the equation as
necessarily it must, one tends to think it apt that
at the end of the day the inquiry that will take
place in relation to that which is lost is the
question of how it is lost in money terms. We say,
with respect, that the principle that is enunciated
in Graham v Baker has been accepted by this Court
and· the overriding principle has been accepted by
this Court in many areas.
Examples of that are of course that taxation

should be deducted if it is a conceptual theory of
loss of earning capacity, as is put in my learned
friend's alternative argument, then why enter into
that debate. It is looked at by this Court. It
has been followed in terms of the issue of interest
on damages. Interest are said to be compensatory
in nature and part of the overall compensation in
money terms that the plaintiff is entitled to and
this Court has said, of course, in Haines v
Bendall, that no, you will deduct the amount that
you might have received by way of interest in so
far as you have received money by way of
compensation payments from another source, and in
other areas.

We say that if you are to overturn the

principle as it has been followed by the courts in
Graham v Baker, then it is going to require a
revisiting of a number of other areas.

DAWSON J: Griffiths v Kerkemeyer does overturn it, maybe

just to a limited extent.

MR WALSH:

Yes, it may not, Your Honour, and we will urge

you not to do so, for good practical reasons and we
say and conceptual reasons as well, because what we
say is that in fact, in truth the decisions of
Van Gervan v Fenton and Kerkemeyer v Griffiths are
not inconsistent with the overall principle that
has been followed in cases of compensation for

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tortious loss. We put it this way: if you look at
the cases of Van Gervan v Fenton, what is being
said is that you shall be compensated for the need
that you have for services which ordinarily will
sound in damages, and it is going to be a very rare
case, as one judge said, where you are going to say
that any moneys received should be in aid of a
wrongdoer, but it is the need that the court was
looking at.
If we look at it and compare it with loss of

future earning capacity on the other hand, it could
be said, as has already been said today, that we
are really looking at two different assessments,

different things, at different issues. But if we
must, as my learned friend encourages us to do so,
if we must look at it in terms of the principle in
Van Gervan v Fenton, then let us look at it in

terms of need. What can be said - - -

DAWSON J:	I thought there was something pretty pragmatic in those cases. If someone is charitably providing
the services it is not acceptable that the
defendant who has caused the situation should
thereby gain a windfall, and choosing between the
defendant and the plaintiff so far as the windfall
is concerned, you choose the plaintiff.
McHUGH J:	But is not the key to it the difference between

loss and need on the one hand, and damage. When
one is dealing with loss of earning capacity, that

is not the same thing as damage. Somebody may lose

earning capacity but suffer no damage from it. On
the other hand, in the Griffiths v Kerkemeyer
situation, a need is created and that need itself
sounds in damage but what the courts do is that
they refuse to allow the defendant to obtain any
credit from the fact that the person does not
suffer financial loss; if a person suffered damage
but financial loss is obviated by the fact that a

third person has voluntarily provided the service.

MR WALSH:

That point is mirrored, of course, in the area of loss of earning capacity in cases such as Redding v

Lee where you look at the nature of what it is that

is being given by a third party to replace, pension

or unemployment benefits.

What happened, of

course, in Redding v Lee and in the case that was

heard with it is that the Court determined by

majority that in the case of unemployment benefits
they were specifically given for the purposes of
replacing an income; therefore, they would be taken

into account.

But all those cases, of course, and

Redding v Lee are accepting that fundamental principle which I put earlier, and one which

supports the position of Graham v Baker.

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What we say is the appropriate way to look at

it in terms of need is this: that if you look at
loss of earning capacity as two components, one is
the need for replacement of that which is lost in
money terms because of the fact that the capacity
was going to be exercised. There is a need for
replacement of that income, just as much as if you
have services that are required there is a need for
a replacement of those services. But there is no
need for a replacement of a notional or conceptual

loss of earning capacity, we say. The need is to
replace that which will be either a loss to the
plaintiff because he requires the services, or the
loss to the plaintiff because he is now no longer
able to exercise his earning capacity in the way he
intended to do so.
If we can then test the proposition by looking

at the concept of capacity in this way, we could do
it by looking at capacity and saying, "Let us take
a person who, before an accident, has a capacity to paint his house, for example. He has a capacity to

look after himself, of course; he has a capacity
to be able to live his life without medical care
and nursing services, and all these things are
attributes that he has, but in relation to, for
example, the inability to paint, then he suffers an

accident and he is put into an institution." He
has a need for services because of the services
that are provided at the institution, but in a
notional sense and a conceptual sense, it might be
said that he has lost the capacity to provide for
things that he would have provided for, exercising
that capacity, had the accident not occurred. That
conceptual loss can be if he was the person who
painted his house, then that is the loss. If he
was not the person who painted his house, there is
no loss, we say, even in a conceptual sense because

he was never going to exercise it anyway. He was
one of those people who had a fixed mind against

painting houses. He just would not have done it.

The point that we make, I suppose, is this:

that if you go back to that starting point, it is
immediately recognized, in our respectful
submission, that when you adopt the conceptual
approach, Van Gervan v Fenton is not saying that
you should follow it. It is merely saying that you
should replace those services which are, in fact,
required, not which conceptually you might have
lost, namely, your capacity, which might
conceptually have been lost.

McHUGH J: Whenever a person suffers physical or mental injury and the question of damages arises, the

first question which arises is: what capacities
have been impaired as a result of that physical or

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mental injury? Sometimes it is a purely conceptual
way of approaching it. If a 70 year-old retired
surgeon loses his right hand, arguably you could
say, "There is no question of loss of earning
capacity of the surgeon arises", or you could look
at it another way and say, "Well, he has lost his
earning capacity as a surgeon but he has suffered
no damage from it" - there is always this question
of identifying what capacity - - -

MR WALSH:

I suppose, even applied to the facts of this

case, we argue - and I will say so on the facts, and I should indicate now that that is the case

that we are talking about. We are saying, "Here we
have a man who, if my learned friend is correct,
has lost some capacity but there was no damage that
has been suffered because of it." That is one
answer to the problem with the case at bar. But if
we are dealing solely with the conceptual approach, we say that there is, in fact, no inconsistency, as my learned friend suggests, between the cases of
Van Gervan v Fenton and the concept in Graham v
Baker.

DAWSON J:

You get loss of capacity in other ways, do you

not, I think? For instance, if I can no longer do

the crossword. I never got an income from it - - -

MR WALSH:

I am sorry, Your Honour, I cannot hear you.

DAWSON J: If I could no longer do the crossword. It does

not earn me any income but I get compensated, do I
not, for loss of amenity of life or something like
that?

MR WALSH:

Indeed, Your Honour, and, indeed, that is exactly

what His Honour Justice Debelle adverted to and he, in fact, gave him some money, an award for pain and
suffering because of some loss of enjoyment of

life. He adverted to that fact and Your Honour is
entirely correct, in our respectful submission.

The way in which loss of earning capacity has been approached by the courts is adequately
illustrated, for instance, in a case of the South
Australian Full Court of Mann v Ellbourne, to which

I will return shortly. But what had happened in that case was that the proposition was put, namely
the conceptual proposition, whether you should have
an award for loss of future earning capacity, on a

conceptual basis. The Full Court decided, "No".
The Chief Justice Dr Bray recanted from what he had said in the earlier case of Forsberg v
Muslin and he did so for this reason: because he
found the reasoning of Justice Bright utterly
compelling, namely that where you have three people
who are injured, one who would have exercised his

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or her capacity to the fullest, one who would have
exercised his or her capacity to a less extent, and
one who would not have exercised his or her
capacity at all, do you compensate them on exactly
the same basis? And he concluded, "No", because
you must, at the end of the day, as principles of
fairness and justice and within the concept of the overriding principle of compensation, look to what they would actually lose.

TOOHEY J:

But you are not supporting a proposition that

some differential is required. You are supporting
a proposition that no damages should be awarded
under this particular head?

MR WALSH:

Indeed, Your Honour, yes. In this case, yes, and

we say the reason for that and the justification
for that is firstly a combination of the fact that
this man was 56 or 57 years of age at the time of
the trial and we could look with some certainty at
what it is that he was likely to be doing for the
remainder of his working life, to age 65 at the
very least, and we then say that the learned trial
judge found that, in truth, despite what he
asserted, he in fact had no loss of earning
capacity for that work and, further, that he
decided to leave the job for other reasons.
Finally, we say that even if it had been

urged, which we say it was not, that there would be
loss of future earning capacity after the age of 65 years. There was no evidence of that and, in fact,
there was evidence to demonstrate that he was doing

quite a lot and that he could do quite a lot. We
say, at the end of the day, in this case, that the
answer is simple, that you can say that there was,
in truth, irrespective of some confusing statements
as to pre-eminent cause, and so forth, the learned
trial judge was saying that he had no capacity that
now cannot be exercised because of his injuries.

That is our approach to the issue of the

conceptual approach. We say there simply is not an
inconsistency, and we say that as far as the other
cases are concerned in the various areas such as
deduction for tax, deduction for - no compensation
for interest and the like, as I have indicated in
my outline of argument, all of those fit into place
within the general concept of an overriding
principle of compensation, because I suppose at the
end of the day the question of assessing for loss
of earning capacity or the question of assessing
for future needs of services, is all but various
parts of an overall principle of compensation for
damages, and what we now do, since
Arthur Robinson (Grafton) is that we go through the process for the purposes of making a little more

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certain of assessing damages in accordance with
heads of damage, and because we assess in
accordance with heads of damage, we then have
little rules that sometimes might appear a little
anomalous in one case or the other, but does it
matter?
Does it matter that there may be a slightly different approach in different areas if, at the
end of the day, what we are achieving is the
ultimate aim, namely to provide an assessment of
damages in accordance with the overriding
principle. But we say in any - - -

TOOHEY J:

I am not sure that I follow that.

Are you saying

that if a court expressly says, "We make no
allowance for loss of earning capacity", in testing
whether that proposition can be sustained or not,
you look at the overall award of damages and say,
"Well, is that adequate compensation for this
plaintiff in all these circumstances?"

MR WALSH:

What I was addressing at the time was a

conceptual issue, not thinking of this case at all.
I was simply putting a proposition that what we
endeavour to achieve in an assessment of damages in
any case is to look at the various heads of damage
and then come to a figure that finally is an
appropriate award of damages, and I was not dealing
specifically with the issue of loss of future
earning capacity.

TOOHEY J:

No, but it might· be one thing for a respondent to

an appeal by an injured plaintiff to say, "Well,
maybe the court below failed to award adequate
compensation under that particular head, but when
you look at the award overall, there can be no
complaint on the basis that it failed to adequately
compensate the plaintiff." But is that an argument
that is to be run here?

MR WALSH:

No, Your Honour.

I am not suggesting that the

overall compensation awarded is an issue in this
case, offsetting anything that might be considered
to be incorrect in terms of the approach of the

Full Court. I was merely looking at it as a
conceptual issue, that there may be differences of
approach when one is looking at different heads of
damage, and if it is considered that I am wrong
about my assertion, that there is no inconsistency
between Van Gervan on the one hand and
Graham v Baker approach on the other hand, well we
say so be it. That does not mean that you then get
the tail to wag the dog and change, as it were, the approach in another area. That is the simple point
that I make on that topic.

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I suppose having said that, it is then necessary to turn to the issue of causation very
briefly, and this is the next point that I make in
what was to be my argument in a nutshell, but it

has progressed a little further from that. But the
point that we make in relation to the topic of
causation is this, that in truth what the learned
trial judge did was determine that in fact there
was a capacity to continue his job, if he chose to
do so, and that the loss, if anything, that flowed
was a loss that arose as a result of his own
decision to retire for other reasons.
Now, in so far as His Honour adopted or used the words "pre-eminent cause" - and that might be
seen to be falling into error - we say that, in
truth, irrespective of the use of those words, he
was saying that he had a capacity to do that work
and he chose not to do it for other reasons.

TOOHEY J: So, that is really saying there has been no

diminution of earning capacity at all. Put to one
side whether it is productive or non-productive of
economic loss, there simply has been no diminution.

MR WALSH:	Yes. Well, that is so in relation to - it is in the context, however, of the way in which he
clearly would have contemplating exercising his
earning capacity. I mean, true it is that if a man
has an injury to his hip, even at the age of 57, it
might be argued on the conceptual approach that he
has some disability for working in a road gang, that he could not do the heavy work.

Curiously enough, in this case, in his

evidence about what he can do since the accident,
there are such things as fly around Australia in a
light plane for five weeks; such things as

shifting logs. He is still a very healthy man, and
there was evidence of the fact, and His Honour so
found, that he really had recovered well from that

injury and was left with ache, albeit it had some
consequences for him, but in the overall context of
this man, His Honour was finding that he still had
a capacity to earn in all areas that he might
choose to exercise that capacity.

TOOHEY J: Is there a finding of that fact?

MR WALSH:

I think I should go to the findings.

Just before

I do that I wish to say this about the case before
His Honour Justice Debelle. His Honour was
confronted with much evidence from doctors, who you
do not have the evidence of in the appeal book;
two letters that were written by Professor Medlin
to the university; medical reports that related to
a pre-accident history of illness and incapacity

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and problems and difficulties with his job; and
His Honour was then confronted with a witness who said that he had given up his job partly because of
his injury and partly because of some other
factors.
His Honour had to make an assessment of what

was the truth of the matter, and we say, with
respect - and I will turn to the findings shortly -
that His Honour did so, and he did so on the basis
that this man, for other reasons, including other
reasons associated with a condition that had
existed prior to the accident, had decided to give
up his job. There is evidence, if I may say so -
and I have copies of it if it is necessary - - -

DAWSON J: That is a little simple, is it not, really? What

he did say was, as I understand the evidence, was
that he did not feel he was doing the job according
to the standards which he set himself. Although
the university would have accepted the lower
standards as sufficient to allow him to retain his
job. Undoubtedly he did, in that sense, suffer a
loss of capacity, because the pain that was caused
to him interfered with the performance of his
duties.

MR WALSH:

Yes.

DAWSON J: Yet, you say, he gets no compensation for that

lack of capacity.

MR WALSH:

The point we make is that that is what he said,

and what His Honour had to decide was the truth of
the matter. His Honour was confronted with a man
who had considerable difficulties in his work well
before he ever had a motor vehicle accident and had
the same sorts of difficulties, conceptually, and
in his approach to his work, afterwards, and made a
decision when he had finally come to terms with

those difficulties that he had in his mind and the
depression that he had had before this motor
vehicle accident, he finally decided that he wanted

to really fulfil himself in his final years. He
wanted to fulfil himself by leaving the university,
we say, and devoting himself to the creative work
that he thought could pull all the pieces of his
life together - in his words, I think - to pull his
life together, his whole life.
What we say is that the history that I was

referring to earlier, Your Honour, is that
His Honour had to assess the truth of that earlier
history, how that affected him, what it was that
was making him feel that he could not do his job as
a matter of truth, and what it was that truly

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decided for him that he should give up his
employment and fulfil his life. There is evidence
in other reports, a Dr Kalucy who was a
psychiatrist who saw him in 1982, that he had had a

problem with alcohol, for instance. He was
drinking six bottles of beer a day for ten years on
the history.
He had had this difficulty in coping with a

long history of problems associated with his
beliefs, stemming back from the days of the Vietnam

War days. He was a troubled man. What His Honour
found was a troubled man, and on three separate
occasions, at least, we can determine from the
transcript that His Honour asked telling questions
of Professor Medlin on the basis that he was
searching to see what the truth of the matter was,

as opposed to his fixation. Because as he
admitted himself, here was a man who, once he made
up his mind, he attacked his belief with enormous
vigour and he had omitted, for example -

DEANE J: Is this really not getting a little bit away from

the problem. I mean, on the material that we have
seen there is obviously a great deal to be said for
the view that the pain caused by the relevant
accident was a contributing factor to the decision
to retire. One would have thought that would give

rise to a need for three findings. One would b

was it or was it not a contributing factor? The
second: was it significant enough to be treated as

a cause of his decision? And the third may be:
was that decision reasonable in all the
circumstances?
I just cannot see any findings in relation to

any of those matters spelt out in any of the

judgments. The query, therefore, is are they

implicit in what is said. I follow you saying yes,
they are, but unless it can be demonstrated that
they were really made, is there not something

lacking somewhere along the line?

MR WALSH:

Your Honour, I accept entirely, as I must, what

Your Honour puts to me in terms of the appropriate
approach and the three questions to be asked in a
case of this kind but we do say, with respect, that
it is implicit that His Honour has been through

that process. I suppose, in fairness to His Honour
the trial judge, it would be appropriate for me to
just refer in a chronological way through his
judgment of the - refer you to the findings that he
has made and then the conclusion.
If the Court pleases, I would like to start by

referring Your Honours to page 228 at line 35 and Your Honours will see that His Honour found that:

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By about September 1984, the pain had reduced

to a low level. However, the pain has not
disappeared. It has remained at a low level
and is a source of constant discomfort.

That is a question of evaluation of the evidence,
we say, an acceptance of the plaintiff's specific
evidence on that. At page 229 His Honour said at
line 11 that:
The plaintiff impressed me with his

ability to overcome the physical effects of
his injuries as quickly as possible.

Then at line 31 he concludes by saying:
In short, the plaintiff has made a good
recovery and is still a very fit man for his

age. However, he still suffers from pain
which is a continuing source of discomfort.
He had shaken off the bouts of depression by
1986.

Another specific finding. One of the reasons why
this man is said not to be able to continue with
his work is because of, presumably, some
psychological input over the physical injury and
the effect that it had upon him.
Your Honours will see at page 230 - and this

is on a slightly different topic but it adverts to

that issue of what was really being claimed. At
line 18 His Honour said this:
The major issue in this trial -

and I think His Honour meant as opposed to pain and
suffering and other such issues -
concerned the plaintiff's claim for economic
loss based on his early retirement from his
position as head of the Discipline of

Philosophy at Flinders University.

Then jumping a little to line 35 you will observe
that His Honour said:
The plaintiff claimed loss of salary and long
service leave entitlements for the four and a
half year period from 30 June 1988 to
10 December 1992 which he had lost in

consequence of his early retirement. The
defendant -

however - and this is the point that was raised -

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submits that the plaintiff's decision to
retire was not a consequence of the injuries
he received in the accident.

That was the point that was then debated. The next
point I wish to refer to in the judgment is at
page 232 line - - -

TOOHEY J: Just before you leave 230,Mr Walsh, can I just

ask you this because the pleadings are not in the
appeal book: that reference to claim in loss of
salary and long service leave entitlements, was
that a claim by way of special damages?

MR WALSH:

No, Your Honour.

TOOHEY J: His Honour was referring to the way in which the

argument was presented before him, was he?

MR WALSH:

No, Your Honour,

it was not claimed as special

damages, it was merely, I believe, claimed as loss
of earning capacity and specifically I should
indicate to Your Honour that there was evidence
before His Honour from an accountant of the way in
which you go about calculating the loss as if it
were almost a special damage.

TOOHEY J: Yes, thank you.

At page 234, His Honour dealt with some of the

pre-accident history and Your Honours will note, at
line 5:

In November 1983, before the accident, the
plaintiff once again asked to be relieved of

administrative duties. He applied to be
replaced indefinitely as head of the
discipline.

This is before the accident. Then you will see
that His Honour continued, at line 15, to refer to

Dr Clayer:
diagnosed a depressive illness which Dr Clayer

believed was due to the personal problems in his life and problems in his position at the Flinders University. In this respect he was
referring to the fact that Professor Medlin
had been involved in a number of conflicts -
and so forth, and there were medical reports from
Dr Clayer which were within the Full Court appeal

books. Then you will see, at page 234 line 45:
The plaintiff believes that by the end of

1983 he had begun to shake off his depression.
However, the injuries he received in the motor

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vehicle accident exacerbated his existing
depressive state.

His Honour found that that had been overcome in
1986, that exacerbation.
The next point I would take you to is at

page 236 line 50, at the foot, where His Honour
related that:
The plaintiff continued to be relieved of

administrative duties in 1985 and in 1986 -

which had started before the accident.

In 1985 he continued teaching -

and so forth. Then His Honour referred to evidence

of a Dr Le Page, at page 238. Dr Le Page's
evidence is not in this appeal book but it was

before the Full Court. You will see at line 15
that:
he intended to return to his normal

professional duties in 1987. Dr Le Page then
formed the view that the plaintiff could
continue with his work.

This is in 1986.

TOOHEY J:

A lot of this is really a recital of evidence.

MR WALSH: It is, Your Honour.

TOOHEY J: It does not necessarily constitute findings by

the trial judge.

MR WALSH:

I am sorry, Your Honour, I just wanted to deal with a little of that.

TOOHEY J: Yes, I understand why you are doing it but maybe

that should be kept in mind.

MR WALSH:

Indeed, Your Honour, and I accept fully what you

are saying. His Honour then, at the foot of
page 245, in dealing with the letter of 26 May 1987
adverted to the fact that - this is the last two
lines:
He wished to be relieved of teaching and administrative duties so that he could take
full advantage for what he believed was about
to be the most creative period of his life.

Then His Honour said, at page 246 line 11:

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While there can be little doubt that the
plaintiff was continuing to suffer from
chronic pain, I do not think that was -

and this is where we get into some difficulty -
the pre-eminent reason for the plaintiff
choosing to take advantage of the University's
early retirement scheme. As he himself says,
he was still able to do the tasks required as

head of Discipline of Philosophy. He
acknowledged that he was still a competent

teacher. He said that he could still perform
the administrative tasks required.

That is all a little contrary to some of the other evidence, but the point is that there was

contrary evidence from time to time. Then
His Honour referred to Dr Le Page again, and at the
foot of page 247 His Honour - again, I accept in
reciting some history - at line 49 in reference to

Mr O'Hair:
He had found those duties irksome several
years before the accident. His unwillingness
to carry out these duties was not a
consequence of the accident. Furthermore, the
plaintiff could have been relieved of
administrative duties by accepting the

position of Reader. The fact that he chose
not to do so is a further indication -

this is His Honour speaking now
of his desire to be rid of teaching and administrative duties to devote time to research and creative philosophy.

His Honour then dealt with some evidence of

Dr Raptis which he was not persuaded by. He also

refers to the plaintiff, Dr Michael Hayes. He has

not ignored what Mr Hayes has said, and refers at

the foot of the page to Dr Clayer. He then says at
page 249 in a new paragraph:
Even if it is wrong to conclude that the reason for the plaintiff's decision to retire
early was the desire to pursue his creative
interests -

In our respectful submission, it is implicit in
that and the earlier paragraph that I referred to
that His Honour is making a finding that the reason
for him to retire was nothing to do with his
accident and furthermore, in our respectful
submission, with his other findings that he was fit

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to do his work. Then he finds at the foot of
page 249 the following:
1. By 1986 the plaintiff had shaken off any
depression caused by factors pre-dating the
accident or caused by the accident and was
looking forward to new challenges.

That is a finding of fact.
His early retirement was not the result of any
feelings of depression.

Finding.
2. By 1987 the plaintiff had made a good
recovery from the injuries he had sustained in

the accident. The plaintiff was, however,

still recovering from chronic pain. The pain
was at a low level -

Finding -
and did not usually require pain relief

medication. However, if the plaintiff
over-exerted himself physically, the pain
could become quite intense and require

medication. The pain was at a sufficient
level to cause him to wake at least once on
most nights. This left the plaintiff feeling

tired. He did not have the intellectual
energy which, he believed, was required to
discharge his duties to his complete
satisfaction.

Then he went on to find, 3:
Although he said in his letter of

26 May 1987 that he could discharge them, the
plaintiff had for some time found the
administrative duties required as head of the

Discipline of Philosophy burdensome and
and the inference is that he did not want to do
them, and that was so before the accident, as we
irksome -

know. And then in point 5:
In 1987 and 1988, the plaintiff had the teaching and administrative skills to retain
the position as head of the Discipline of
Philosophy -

a finding of fact. 6, and this is where we get
into slight difficulty but, in the light of what
has happened, we say it is implicit that "pre-
eminent" means "the reason":

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The pre-eminent reason why the plaintiff
decided to retire early was to be able to
devote as much time as possible to research
and creative philosophy untroubled by the
requirements of University life and in
particular the administrative and teaching

duties required of him. He wished to be able
to devote as much time as possible to research
in the next five years so that he could make
the best use of what he perceived to be the
most creative period of his life.
The decision to retire was also in part

the result of the plaintiff's own high

standards. He believed that, as he was not
performing at the level he thought desirable,

he should resign. However, this was not the
main reason for the plaintiff's early
retirement.

I should pause by saying, because that might speak
a little against me, that what His Honour was
confronted with and what may well have been in his
mind when he made that finding, was the fact that
he had troubles before, they continue throughout,
the plaintiff accepted that some of his problems
had continued throughout, he had a back problem
which was continuing and had nothing to do with the
accident, it was a back pain involving a
degenerative condition. His Honour did not go
through all of that. But if one looks at the
totality of the evidence, what is implicit is
clear, that when he said that there were other
things it was not the accident that he was pointing
to as being all those other things.

DEANE J: Except when you look at 7, particularly the word

"main" in the second sentence, does that not demand
some specific findings?

MR WALSH:

I have missed that, Your Honour. Point 7?

DEANE J: Point 7, yes.

MR WALSH:

The word "may".

MCHUGH J:

"Main" at the top of 251.

MR WALSH:

"The main" , I am sorry, Your Honour, yes .

I

suppose it could be argued - yes, with respect,
Your Honour - that it would have been good had
His Honour been through the overall analysis that he had obviously made of all these witnesses and

problems that he had referred to earlier. We
accept that, Your Honour. 8:

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The plaintiff could have retained his

position as head of the discipline of
Philosophy until he retired at the age of 65

years on 10 December 1992. There is no
evidence that the University believed that
either his teaching or his administrative
skills were unsatisfactory.

I should at least comment on what my learned friend
said about evidence of O'Hair. O'Hair was a very

close friend of him. He had been through the
troubled times with him and usually on his side,
and they were considerably troubled times, and
O'Hair said that he had these problems, but when
one looks at O'Hair's evidence in cross-examination
he accepted that he had these problems in 1982/1983
and that he was re-evaluating his life, and in his
evidence he actually says he was still doing that
re-evaluation process in 1986/1987, and His Honour
was entitled to thread from that that it was
consistent - at least O'Hair's evidence was in part
consistent with the conclusions that he was
reaching.
I think I should, at least, give you the

passages, I do not ask that you look at it now, but
page 184 point 26, 190 point 24 and 192 point 7,
that is O'Hair's evidence. His Honour continued at
point 8 on page 251:
Indeed, Dr Wright's report states and there is
no evidence to qualify it or gainsay it) that
there is no evidence that the plaintiff was
not performing his duties to the satisfaction
of the University.

One might have asked that if, in fact, it was
asserted that this man was not, in the university's opinion, satisfactorily performing his duties, that there might have been some evidence from his
superior, or somebody to say, "No, look, we have

observed that he is not satisfactorily performing
his duties." There is not one shred of evidence to
suggest that he was not.
His Honour went on to deal with the issue of

any award for loss of earning capacity. It is
implicit, we say, in the next line, namely:
The plaintiff can only recover damages

for the loss of four and a half years salary
if he can prove that his earning capacity has
been diminished.

That what was really the point and the issue before
him, and what was really being argued was that four
and a half years, and nothing more.

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DEANE J:

Mr Walsh, are the references to retirement on the

grounds of invalidity the same as the references to
retirement under the early retirement scheme?

MR WALSH:	I suspect not, Your Honour.
DEANE J:	They read differently, but - - -
MR WALSH:	It depends on which reference -

DEANE J: It appears he was retired under the early

retirement scheme, but the things leading up to it
were seeking retirement on the grounds of

invalidity. I mean, did things change, or - - -?

MR WALSH:

Yes, he indicated - I think the evidence was that

he took advantage of the scheme that had just
started for early retirement. That was the
evidence.

DEANE J: Which did not - - -

MR WALSH:	- - - exist before.
DEANE J:	And which did not require him to establish

invalidity.

MR WALSH:

Yes, Your Honour.

DEANE J:

I see.

Mr Gray said to us that the answer to

that report of Dr Wright's was that he had sought
retirement on the grounds of invalidity, and the
university had agreed that he be retired on the

grounds of invalidity. You would dispute the
second of those propositions, would you?

MR WALSH:	We do, with respect, Your Honour, yes.
DEANE J:	How do we resolve the dispute, that is, if we want

to?

MR WALSH:

With great difficulty, Your Honour.

Can I throw

something else into the equation, with respect,
Your Honour, just to muddy the waters a little
more, as it were?

DEANE J: Well, I doubt that that is possible, but you do

your best.

MR WALSH:

Thank you, Your Honour. There is evidence - it

is not before you but it is part of one of the
reports, I think from Dr Kalucy - that there had
been a hint of intention before the accident,
namely in 1982/1983 of seeking retirement on the
grounds of invalidity and it seems, with respect,
that in the process - and this is what His Honour
Justice Debelle no doubt was grappling with in

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terms of the facts of the case - of passing from
his problems of 82/83 continuing as they were past
that but also superimposed on that his accident of
1984 and then his sudden enlightenment in 1986, 87,

when he thought, "I've got over all of this. I
know what I want to do with my life. I want to
give up and I want to go out and do some really
creative work", His Honour had to determine whether
there was really, in truth, any desire to retire
for invalidity. If there was, upon what basis and
whether there was any justification for it and what
was the university's attitude to it. But there are
not specific findings in relation to all of those
items.
What we do say is that if one looks at all of the evidence, it is implicit when one looks at the
findings that His Honour makes and the way he
expresses those findings that he has reached a very
clear conclusion, a very clear conclusion that this
man would have retired even if the accident had not

occurred, when this scheme came into force. So
that whether you look at it from the point of view
of the "but for" test which we say is perfectly
appropriate in a case of this kind - it does not
apply in some cases of course, but this Court did
not reject the "but for" test. It said that it is
not the sole test.
But we say in this case that His Honour has

obviously concluded that he would have retired had
the accident not occurred, because one can
imagine - this man is a very intelligent man, an
obsessive man. Reviewing his life at the age of
56, 57, he finally sees the light, as His Honour
refers to in the passages of evidence, and

Mr Medlin himself refers to it, and decides, "I
know what I want to do with my life", and then goes
out and does it.
If one looks at O'Hair's evidence, how does he

do it - I think it may be appropriate to look at

O'Hair's evidence at page 195, and there is a long
answer about two seminars that he had been doing
when he had presented some of the material:

Q. In general, would you describe his work
since his retirement as being good work.

A. Yes.
Q. Creative work.

A. Yes.

He is exercising the very capacity that he wants to exercise and there is no evidence to
suggest that there is any diminution of that
capacity, nor any loss flying from it.

Medlin(2)	49
TOOHEY J:	I know this is not an answer to what you are putting to us, but it is a very unusual situation
to find an assessment of damages which expressly
excludes loss of earning capacity in the case of
someone who is of an age where he or she could
expect to go on working for some years at whatever they were then doing, irrespective of what they
might do after retirement.

MR WALSH:

Yes.

As opposed to a nominal loss, yes.

TOOHEY J:

Most unusual.

MR WALSH: That is so, and of course the Supreme Court of

South Australia and the individual judges are very
accustomed to awarding nominal damages for loss of
chance and the like within the accepted principle

of Graham v Baker. But in this case the learned
trial judge, and accepted by the Full Court, must
have been very impressed that this man was going to
fully exploit any capacity that he chose to

exploit, irrespective of the accident. And it is
an unusual case, Your Honour, we accept that.

TOOHEY J: That rather brings us back to something that was

being said earlier on, that the focus is not so
much, in one sense, on whether the diminution is
productive of financial loss but, really, on your
case is there was no diminution of earning
capacity. You put it as strongly as that?

MR WALSH: That is so, Your Honour. Yes, we do. Yes. If

we accept Graham v Baker, which we do, if we accept
what was said by the Full Court of South Australia
in Mann v Ellbourne, and I will not go to it - I
will discuss the principles but I will leave nine
copies with the Court - if we accept all of that,
we acknowledge that in the assessment of loss of
future earning capacity the Court will look at what
is likely to be the demonstrated loss and,
particularly, in some cases, the chance that there

may have been an exercise of capacity in some other
arena, particularly with young people because they
change their minds about their career paths, and so
forth and they might want to go into other arenas,
or they might suffer an accident and have to be
forced to go into another arena, that is so.
But when you get into a person whose age is say 56, 57, things are a little clearer and that must have been something that weighed on the mind
of the trial judge. That is no disrespect to
people who are aged 56 or 57.

TOOHEY J:

No, you may be talking to a fairly unreceptive

audience.

Medlin(2)

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MR WALSH:

I said that with, inside me, a great caution but

it did not sound that way the way it came out.
But, with respect, I think we can probably accept
that by the time that we have reached a certain age
we know what it is that we want to do and
particularly in the case of this man where he
really had decided, "I know exactly what I want to
do. This has all, in a sense, helped me. I've
decided that I can focus on what I want to do to
achieve my ultimate aim in concluding my life the
way I would hope to conclude it.".

GAUDRON J:

But it is a decision in a context where the

injury has occurred. He may well have been able to
do everything he wanted to do after the injury.

MR WALSH: Yes, I accept that, Your Honour.

It must be in

context, yes. I have put my proposition, I
suppose. I can only say this is a very unusual case and accepted by the learned trial judge as

such. He was an unusual man and that is why, in
our respectful submission, the Full Court ought not
to have interfered with the award and we would urge
that this Court ought not to either because
His Honour has had to grapple with an unusual
person and make an assessment of him as a person. At three pages, and I will not ask you to look at
it now, you will see that His Honour is going
through the assessment of trying to analyze what

the plaintiff is all about. I merely mention those
pages as being at 122 line 30, 88 line 12 and 87
point 25.
One has a hint when one reads those passages

that His Honour is exploring the man. He had been
listening to him and the way in which he has given
his evidence and, of course, we all know, if I am
right about that, that the logical result is that
an appeal court ought not to interfere as long as
he has, at the end of the day, made the correct
assessment and it not demonstrably wrong.

If the Court pleases, I do want the Court to

have some passages of evidence without laboriously
going through it. There are two ways I could do
that: to simply give Your Honours a note of those
passages of evidence, or over the luncheon
adjournment I could have it typed up and simply
handed to the Court. Alternatively, I can have it
typed up, give my friend a copy of what it is that
I have typed up and make sure the Court has a copy
of those passages which otherwise I would refer to.

DEANE J: If we are finished before lunch, that would be

quite satisfactory. If we are not finished before
lunch, you could bring it back after lunch.

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MR WALSH:

Thank you, Your Honour.

TOOHEY J: Are you speaking of pages that are in the

material before us, Mr Walsh?

MR WALSH:

Yes, I will give Your Honours passages of what is

contained in this book. I think I have indicated
to the Court that one must be careful, in order to
do justice to the learned trial judge's evaluation
of the evidence, to look through the whole of the
judgment in the way in which he has dealt with the
evidence of different witnesses, for example,

Mr Hayes. My learned friend complains about some
conclusions reached as against some of the evidence

of Mr Hayes, but that again is inconsistent. His
reports disclose, for example, that he thought that
he had recovered very well and that there was
nothing to prevent him from doing his work. help to put a letter to the vice-chancellor, and
also which he sends to his solicitors because if
Your Honours look at the bottom of that letter,
that letter goes off to the solicitors. His Honour
had. to deal with all those issues, and I do not
want to trouble the Court with having to go through
all of those, but I will detail those passages of
evidence.
I suppose I can conclude by simply returning to - and I will not read it to the Court - my

outline of argument. What I have dealt with in
point 1 is the primary proposition that I put to
Your Honours that the basic principle has been
followed by this Court in a number of ways and a
number of areas, and I do not seek to take the
Court through the cases that I have referred to
there.
In point two - I suppose it is a little

verbose, but the point I am making is that simply
because Professor Medlin might himself feel that he

has reached an end to the exercise of his capacity
in a particular way does not mean that thereafter
he has a capacity which he is going to use, as
opposed to it being viewed in the context of that
capacity in effect no longer being available to

him. A decision, because of a particular viewpoint
or because of a particular belief or otherwise, is
as much an incapacity in a sense as a physical
incapacity or one as a result of a mental disorder;
if you have a fixed bent that you are never going
to do something, then therefore you will not do it,

and we say that is Professor Medlin. He had
reached the view that he did not want to exercise
his capacity in the way he had in the past any
longer and therefore he had incapacitated himself
for that area of work by his own decision.

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The next matter is 3.2, the issue of

Griffiths v Kerkemeyer, and I will not trouble the
Court further with that. I have put my proposition
and I say that there is no inconsistency and then I
deal with the application of the principles of the

facts of the case at bar.
I should conclude, as my learned junior

rightly points out, by simply commenting on

something that the Full Court said at page 268. My
learned friend challenged this but we say that it
is justified. At page 268 line 25 the Full Court
said:
The appellant's retirement was not

because of the injuries sustained in the
accident on 31 December 1983. It was for

other reasons. The appellant has shown no
loss of earning capacity as a result of the
accident.

We say, in the light of all the evidence and the
reasons of the learned trial judge, that is

justified. My learned friend challenged it but we
say it is justified.
If the Court pleases, subject to those

passages of evidence, they are the arguments for
the respondent.

DEANE J: Mr Walsh, can I ask you this: if, contrary to

your general submissions, the Court was ultimately
to conclude that the decision of the court below
that there had been no compensable loss of earning
capacity could not stand because of the absence of
one or more specific negative finding, what would

your view be? I am not suggesting that we will
reach that stage but what would your view be as to
the correct course; to remit it to the trial judge
to deal with those relevant findings?

MR WALSH:

Yes, inevitably so, we say with respect, because

this Court will say, "Well, there are deficiencies
in these areas," and the trial judge will have to

consider the comments made by the Court. The trial
judge will have to consider alternatives, namely,
"Well, if I am wrong about the conclusion I have
reached," taking into account the argument of
mitigation of damage, how does that fit into the
picture - - -

TOOHEY J: In a sense the trial judge did that, did he not?

MR WALSH:	Yes.
TOOHEY J:	I am not suggesting in a way, necessarily, acceptable to the respondent, but there was a

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calculation made on the basis that the view the
judge had taken that loss of earning capacity might

prove to be wrong. Does that provide any
foundation for this Court?

MR WALSH: It depends on your findings. If you find that

the sole mistake that they made was in the area of
loss of earning capacity in the context of Graham v
Baker, for example, and that they were
alternatively wrong in the context of - I withdraw
that first one, I will start again.
If you find that the trial judge made an error in terms of causation, and no other error at all,
then you may find that being so, if it did cause
the need to retire, then the loss that flows is
obvious. But, the difficulty with that is that
His Honour did not then consider the alternative propositions because he, obviously, did not think
he needed to at that time; namely, well, if that is
so did he fail to mitigate his loss? That argument
was put, and all those issues are going to have to

be dealt with by the trial judge afresh. I hope
that answers Your Honour's question.

TOOHEY J: Yes, thank you.

DEANE J:

Thank you, Mr Walsh.

Mr Gray.

MR GRAY:

If the Court pleases, some short matters in reply.

My learned friend suggested that when the courts
below used the word "pre-eminent" that should be
read to mean "the reason". If the Court pleases,
we say that such a construction is not open. There
is not only the passage that Your Honour the
presiding Judge mentioned in paragraph 7 when reference was made to the main reason, but at
page 252, Justice Debelle, at lines 10 and 11
specifically said:
His -

that is, the professor's -
reasons for retiring early were mixed but the
pre-eminent reason was -
so, the reference to the - the use of the word
"main", main reason at 251 line 1, and the reference to mixed reasons at 252 line 11,
demonstrate that my learned friend's submission
that pre-eminent means "the reason" cannot stand.
My friend was driven to that, of course, because of the clear departure by the courts below from the
test enunciated in March v Stramare.

Medlin(2)

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If the Court pleases, my learned friend spoke

of some activities that the professor had

undertaken in taking a holiday trip. The Court
will find that evidence in the appeal book at
pages 120 to 122, and in it the professor describes
how he did go on such a trip, but how it caused him

discomfort and he did it with difficulty. The
position was that the appellant was a stoical man,
was found by His Honour to be a stoical man, and he
was not simply going away and wrapping himself in

cotton wool and doing nothing. He still wanted to
lead an active life; the price of that was pain.
And in those passages he speaks of doing those
matters and speaks of discomfort and difficulty.
My learned friend - if I might move to a

different topic - made reference to Redding v Lee,
151 CLR 117. Redding v Lee concerned, of course,
the question as to whether an invalid pension
should be brought into account to reduce otherwise

damages. The Court, in Redding v Lee, did make
reference to Graham v Baker, in particular in the
judgment of Justice Mason, as he then was, and Your
Honour Justice Dawson. The matter was discussed in
several passages, in particular at pages 134, 137
and 139.
At page 134, when the issue was being

discussed, reference was made in fact to the
passage of Justice Gibbs in Griffiths v Kerkemeyer
that has been subsequently disapproved of in
Van Gervan. So Redding v Lee took place at a time
when there was still currency about Justice Gibbs'
views in Griffiths v Kerkemeyer being the views of

the Court. So Redding v Lee is to be understood in
that light. Justice Brennan also specifically
refers to the position of Graham v Baker at
page 162.

If the Court pleases, we say that

Redding v Lee is, in any event, quite
distinguishable because one is not talking there

about a wrongdoer gaining the benefit of a charity
of a third person, and likewise in the cases of
taxation and interest, they are quite

distinguishable. They do not involve this question
of a gratuitous benefit or a charitable benefit
coming from a source of which the wrongdoer is
seeking to take the benefit.
Your Honour the presiding judge inquired about

how this matter was dealt with in the pleadings. I
do have a copy of the statement of claim available
to me at the bar table. The relevant matter was
addressed in the plea as to general damages, not
special damages. If I can read the paragraph to

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the Court - it is quite short - it will indicate
the way in which the matter was pleaded:
At the time of the collision the plaintiff held the chair in philosophy at Flinders University. In consequence of the injuries sustained in the accident, it was necessary for him to reduce his workload and take a
substantial amount of time off work
altogether. Ultimately he was forced to
retire from his chair on medical advice on
30 June 1988. At that stage he was earning in

excess of $59,000 per annum. He has suffered
a severe loss of earning capacity in
consequence of his injuries.

There was no particularization of special damages.
At trial His Honour was provided a report by an
accountant who did the sums that led to
His Honour's calculations in the latter part of his
judgment.
If the Court pleases, the remaining matter

that we wished to put by way of reply was this,
that we say it would be quite inappropriate for the
matter to be remitted to the trial judge; he has

finished with the matter. If there was to be a
remission at all, it would be back to the
Full Court of the Supreme Court to deal with in
accordance with this Court's direction. That court
would then have to deal with the issue at the State
level.
If Your Honour pleases, we say this, that the learned trial judge carefully assessed what the
damages would have been if he were wrong in regard
to any capacity and the Court has that and the

detail of it in his reasons. The only two
additional factors to be considered are what would
be an appropriate allowance in regard to loss of

earning capacity post-retirement and this Court is in as good a position as any Court to assess that; it is simply at large on the evidence that is
there.

DEANE J: Except if, for example, a situation arose in which

this Court considered that a finding was necessary
as to whether his retirement had been reasonable in
all the circumstances and that such a finding had
not been made, someone would have to make it - we
have not got all the material before us and it
would be really inappropriate that we set out to.

MR GRAY:

If the Court pleases, we say the appropriate order

then would be to remit the matter to the Full Court
of the Supreme Court of South Australia and that

Medlin(2)

56

10/3/94

court would then deal with it in the way that it
thought appropriate -

DEANE J:	Or decide to remit it to the trial judge.
MR GRAY:	Yes, that court could decide to remit it if they

thought it appropriate. But, if the Court pleases,
could we say in that respect, in regard to the
question of the reasonableness of the - - -

DEANE J: Well, I just took that as an example of a possible

finding would need to be made.

MR GRAY:

Yes.

We would say that - and it is dealt within

our outline - there is ample material, in the
circumstances, to say there was no other
conclusion; he had the advice of his treating
surgeon and the passages are referred to in the
transcript, and it is a matter also on which my
learned friend carried the onus. If one took up
the principles in Watts v Rake, on the findings and
on the evidence, the defendant did not approach
meeting the obligation it has in regard to a
failure to mitigate. They are the matters by way
of reply, if the Court pleases.

DEANE J:

Thank you, Mr Gray.

The Court is indebted to

counsel for their assistance and reserves its
decision in this case.
The Court will now adjourn until 9.30 am

tomorrow in Melbourne and 9.45 am in Canberra.

AT 12.52 PM THE MATTER WAS ADJOURNED SINE DIE

Medlin(2)

57

10/3/94

Key Legal Topics

Areas of Law

Negligence & Tort
Civil Procedure

Legal Concepts

Appeal
Damages
Duty of Care
Negligence
Causation
Remedies

Actions

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Citations

Medlin v The State Government Insurance Commission [1994] HCATrans 233

Most Recent Citation

Woods v Leane No. DCCIV-00-109 [2002] SADC 5

Cases Citing This Decision

29

Stove v Hall [2008] ACTCA 21

McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353

Tran v Younis [2006] NSWCA 188

Cases Cited

2

Statutory Material Cited

0

Bennett v Minister of Community Welfare [1992] HCA 27

Auspine Staff Superannuation Pty Ltd v Henderson (No 2) [2006] FCA 1533

and that is at large.	He is unfit, obviously, for
manual work.	He is unfit for a whole range of

whether it would have been put to use or not.	If
the answer is it would not have in a particular
case, then purely a nominal award would follow.

$150,000.	One might argue about it but it is
obviously about the mark.	But what the judge has

reader as much as a professor.	So that adjustment
would not help.

alternative, if the Court is with us, that the	as being plainly an argument to be put. But, as an
court below applied the wrong test on causation and that a cause, to pick up the wording of March v
Stramare and Bennett v Community Welfare Department
case, was whether the defendant's negligence was a cause from a common sense point of view of the
decision to retire and hence the loss that
followed, and on that ground alone this Court would
interfere.

book reference, what we have identified as being	findings" with a footnote reference to the appeal
the critical findings that we would invite this
Court to have account of, and in particular at
page 4 - - -

his job. In terms of the Full Court's approach to it we	identify page 268 and those passages read, and
page 269 as identifying the error, but to
understand the background to it, and because the the findings one has to go back into the trial judge's findings to understand what has happened. That matter is addressed in the outline of
argument, really starting at page 4.

on the lecturer to be taking on the students' ideas	and allowing a discussion and to teach through that
method.

cannot combine research with teaching.	I am
teaching competently enough -

satisfactorily and the fact that this	and persistent inability to do my job	inability derives from poor health. It was
suggested to me by Professor Hancock that my
problem (and the University's) might be solved
if I were prepared to step down to a
Readership. This might have seemed a
reasonable suggestion in the context at the
time, when it looked as though the main
question was my ability and willingness to act
as head of discipline.

or incapacity.	He answered that
Mr Greg O'Hair, Reader in Philosophy and a

only other body of reasons that comes forward.	So
it is a case of mixed reasons and we say that on

eminent cause test.	So that, really, is the
argument on causation.	One would need to add to

Bennett v the Community Welfare Department.	But
perhaps I could just provide that reference:

v Baker.	The Full Court do not refer to that issue
at all.	We say that is really encapsulated in that

for wages.	And that was the language that
Chief Justice Bray used in Beck v Farrelly.	In

reference to the American authorities in this area.
I do not have those references copied in Court.	I
will have them made available to Your Honours'

is not the same thing as damage.	Somebody may lose
earning capacity but suffer no damage from it.	On
the other hand, in the Griffiths v Kerkemeyer
situation, a need is created and that need itself sounds in damage but what the courts do is that
they refuse to allow the defendant to obtain any

accident and he is put into an institution."	He
has a need for services because of the services

rise to a need for three findings.	One would b
was it or was it not a contributing factor?	The

[1994] HCATrans 233

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Damages

Duty of Care

Negligence

Causation

Remedies

judgments.	The query, therefore, is are they
implicit in what is said.	I follow you saying yes,

that issue of what was really being claimed.	At
line 18 His Honour said this:

and so forth.	Then His Honour referred to evidence
of a Dr Le Page, at page 238.	Dr Le Page's

Dr Raptis which he was not persuaded by.	He also
refers to the plaintiff, Dr Michael Hayes.	He has
not ignored what Mr Hayes has said, and refers at
the foot of the page to Dr Clayer.	He then says at
page 249 in a new paragraph:

the accident.	The plaintiff was, however,
still recovering from chronic pain.	The pain
was at a low level -

problems that he had referred to earlier.	We
accept that, Your Honour. 8:

when he thought, "I've got over all of this.	I
know what I want to do with my life. I want to
give up and I want to go out and do some really

something that the Full Court said at page 268.	My
learned friend challenged this but we say that it
is justified. At page 268 line 25 the Full Court
said:

be dealt with by the trial judge afresh.	I hope
that answers Your Honour's question.

how this matter was dealt with in the pleadings.	I
do have a copy of the statement of claim available to me at the bar table. The relevant matter was
addressed in the plea as to general damages, not
special damages. If I can read the paragraph to