Millis v Valpak (Aust) Pty Limited

[2013] NSWCA 249

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Millis v Valpak (Aust) Pty Limited [2013] NSWCA 249

Hearing dates:

19 July 2013

Decision date:

19 July 2013

Before:

Beazley P;
Meagher JA;
Gleeson JA

Decision:

Appeal and cross-appeal dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - appeal - Supreme Court Act 1970, s 45(4) - no question of general principle - short form judgment.
TORTS - employment accident - lifting injury - liability - risk assessment analysis required - no training in lifting techniques - employer negligent.
DAMAGES - future economic loss - exaggeration of extent of disability - no error in award.

Legislation Cited:

Supreme Court Act 1970

Cases Cited:

Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588

Category:

Principal judgment

Parties:

Paul Millis (Appellant)
Valpak (Aust) Pty Limited (Respondent)

Representation:

Counsel:
S Norton SC; E Welsh (Appellant)
L King SC; P Menary; J Lee (Respondent)
Solicitors:
Brydens Law Office (Appellant)
DLA Piper Australia (Respondent)

File Number(s):

CA 179880/12

 Decision under appeal 

Citation:

Paul Millis v Valpak (Aust) Pty Limited

Date of Decision:

2012-05-25 00:00:00

Before:

Balla DCJ

File Number(s):

11/263828

Judgment

1. THE COURT: The appeal and the cross-appeal are each dismissed and the Court is of the unanimous opinion that the appeal and the cross-appeal do not raise any question of general principle. Pursuant to the Supreme Court Act 1970, s 45(4) the Court's reasons in short form are as follows.

1. The appellant/cross-respondent (referred to hereafter as the appellant), sustained an injury to his back on 16 February 2006 in the course of his employment with the respondent/cross-appellant (referred to hereafter as the respondent). Apart from a short period of light duties, the appellant has not worked since the accident.

1. The trial judge awarded the appellant economic loss for the whole of the period up to the time of trial in the sum of $190,000. Her Honour assessed the appellant as having an impaired future earning capacity, which she assessed in the sum of $200 net per week until age 67, in a total sum of $130,678, after taking into account vicissitudes of 15 per cent and allowing for superannuation.

1. The appellant has appealed against her Honour's assessment of damages for future economic loss. The respondent has cross-appealed against her Honour's finding of liability and her Honour's rejection of its argument as to there being contributory negligence. It is convenient to deal first with the cross-appeal.

1. The injury occurred when the appellant twisted his back whilst picking up boxes that had spilled from a pallet. He had never been given any instructions by the respondent or by any other employer that he should not twist his body while lifting. Her Honour accepted one aspect of the expert ergonomic report of Mr Adams, dated 1 February 2011, and found that the respondent, acting as a reasonable employer, should have conducted a formal risk analysis directed to identifying any work activity which involved a significant risk of injury.

1. Her Honour considered that, in this case, such an analysis would have identified the risks involved in lifting while holding the load out from the body and twisting. Her Honour considered such a risk analysis would have identified the risks involved and steps would have been taken to train staff in safe working techniques. Her Honour considered that, had the appellant been trained in proper lifting techniques, he would have been aware of the risk and had the opportunity to change the way he was working and thereby avoid the risk associated with the way he undertook the lifting task on the occasion of his injury.

1. The challenge to the finding of liability was, in essence, that her Honour's conclusion was not supported by Mr Adams' report. In particular, the respondent contended that it was integral to Mr Adams' report that it was the haste at which the appellant was working, and not merely the twisting, that created the risk of injury and caused the injury. Although Mr Adams' report does refer to the rapidity of movement and the impact that rapidity had, he stated, at para (3.3.3) of his report:

"In addition, [the appellant] twisted very significantly to both sides during many of the individual lifts. He did so, rather than simply moving the position of his feet and keeping his back as untwisted as possible, both because of the haste induced by the pressure he felt to complete the task as rapidly as possible, and because he had not been trained with respect to safe manual handling and was not aware of the significantly increased risk of injury likely to be associated with that twisting. As it is well known to medical practitioners and injury prevention professionals that the structures of the spine are more susceptible to injury if forces are exerted when the back is even lightly twisted, another common recommendation is that workers should avoid twisting when performing any lifting task."

That opinion was not dependent on haste being an essential or integral element in the lifting process.

1. Mr Adams' expert opinion was unchallenged and it was open to her Honour to accept or reject the expert opinion stated in the report, provided there was evidence of the underlying facts upon which the opinion was based: see Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588. The acts on which Mr Adams' opinion was based were relevantly supported by the appellant's evidence. The respondent has not demonstrated that her Honour was not entitled to reach the conclusion that she did on the evidence available.

1. The respondent also challenged her Honour's finding that there was no contributory negligence. It argued that the appellant should have sought assistance. Her Honour found that, even if the appellant had asked for help, he would have continued to perform the task in a manner which involved the same risk of injury. This conclusion was open on the evidence and has not been demonstrated to be wrong.

1. Turning then to the appellant's appeal in relation to future economic loss, the trial judge declined to find that the appellant was, in any realistic sense, unemployable. Her Honour accepted that the appellant had sustained a significant injury and had issues with anxiety. As a consequence, her Honour considered that although the appellant could obtain work as a real estate agent, he was likely, when compared with other real estate agents, to "have a reduced earning capacity due to time off work for back pain and needing time to re-enter the workforce". Her Honour considered that the appellant could obtain such work because she was satisfied, he having recently obtained his real estate qualification, that he was likely to seek and obtain work as a real estate agent.

1. In reaching her conclusion as to the extent to which the appellant's future earning capacity had been impaired, her Honour took into account that he had, in cross-examination, exaggerated his evidence in certain respects. In particular, he had first said that he had to avoid bending completely and that he would squat to pick up even a light load. Later, after further cross-examination, he conceded that he could bend and lift light loads. He also conceded that he could drive for at least up to an hour at a time with little rest time in between. Her Honour's finding as to exaggeration was open on this evidence.

1. The medical evidence was not current at the time of the trial, but was unanimous that there were restrictions on the appellant's earning capacity. The appellant was not challenged to suggest that he did not suffer pain, nor was it suggested that he had no limitations due to his back injury. The appellant's challenge to her Honour's assessment of damages was essentially based on the contention that her Honour had failed to take into account that the appellant was at a disadvantage when competing for jobs because of restrictions on his work capacity. In particular, it was said that he was restricted in his capacity to drive for long periods, to walk other than for short periods, and in lifting.

1. In the Court's opinion, her Honour had regard to those factors. In making her assessment she referred to the appellant's significant injury and its limitations and to the disadvantage those limitations posed to the appellant as compared to other persons seeking work in the same field. There was not a significant differential between the appellant's likely future pre- and post-injury earnings. One way of looking at her Honour's assessment of damages is that she made an overall assessment of his impairment and considered that the appellant had slightly less than a thirty per cent diminution in his earning capacity. Accordingly, she allowed damages assessed at $200 per week out of future pre-injury earnings said to be approximately $750 per week.

1. Another way of considering her Honour's assessment is that in allowing the sum of $200 per week, given a range of possible future post-injury earnings from $680 to $750 per week, her Honour also took in to account, in a general evaluative way, the fact that it would take the appellant some little period of time in which to find employment and that there would be periods when he could not work full time and may be unemployed. In the circumstances, it has not been demonstrated that her Honour's assessment was wrong, either as to the extent of incapacity or as to what must be inferred was her Honour's finding as to the income that the appellant could earn but for his injury and taking into account the other factors to which the Court has referred.

1. The Court considers that, as both the appeal and cross-appeal have failed, there should be no order as to costs.

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Decision last updated: 02 August 2013