Moodie v Ladbrolli Pty Ltd

[1994] QCA 69

IN THE COURT OF APPEAL	[1994] QCA 069
SUPREME COURT OF QUEENSLAND

Appeal No. 173 of 1993.

Brisbane

[Moodie v. Ladbrolli]

BETWEEN:

ROBERT CAMERON MOODIE

Respondent

(Plaintiff)

AND:

LADBROLLI PTY LIMITED

(in liquidation)

Appellant (Defendant)

____________________________________________________________

_____

Fitzgerald P.
McPherson J.A.
Pincus J.A.
____________________________________________________________

_____

Judgment delivered 25/03/94.

Judgment of the Court.
____________________________________________________________
_____

APPEAL DISMISSED WITH COSTS. CROSS-APPEAL ALLOWED, WITH COSTS, BY INCREASING THE JUDGMENT GIVEN FOR THE PLAINTIFF AGAINST THE DEFENDANT TO THE SUM OF $175,056.51.

____________________________________________________________

_____

CATCHWORDS:	NEGLIGENCE - CONTRIBUTORY - apportionment of responsibility - plaintiff suffered a severe electric shock - defendant employer failed to provide a safe system of work - plaintiff failed to perform elementary test to ascertain whether or not cables were alive before touching them - liability apportioned 80% to 20% - whether should be greater liability on plaintiff - apportionment upheld.
NEGLIGENCE - economic loss - past and future - plaintiff suffered post-traumatic stress syndrome and panic disorder - unable to work as an electrician - at the time of trial largely unemployable - whether sums awarded for past and future economic loss too low - award increased.
Counsel:	Mr R A I Myers for the respondent (plaintiff). Mr J R Webb for the appellant (defendant).

Solicitors: Lindsay Duffy & Co. for the respondent

(plaintiff).
Gayler Cleland Towne for the appellant
(defendant).

Hearing Date: 14/03/94.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 173 of 1993.

Brisbane

[Moodie v. Ladbrolli]

Before	Fitzgerald P. Pincus J.A. McPherson J.A.
BETWEEN:

ROBERT CAMERON MOODIE

Respondent

(Plaintiff)

AND:

LADBROLLI PTY LIMITED

(in liquidation)

Appellant (Defendant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25/03/94

This is an appeal in a master and servant case, by the employer, based on the proposition that the primary judge apportioned liability wrongly. The appellant was held liable in negligence and for breach of statutory duty and the respondent guilty of contributory negligence; the judge apportioned liability 80% against the appellant and this was argued to reflect a weighting of the relevant considerations which was too generous to the respondent. There is also a cross-appeal by the respondent plaintiff, on damages. The judgment attacked is for $135,056.51.

Liability

The respondent was injured while engaged as a maintenance worker at a resort in north Queensland. He saw, as he drove about the property in the daytime, that what is described as a bollard light was lying on the ground instead of being in its proper position; it had apparently been damaged by some object colliding with it. The respondent, a qualified electrician, took steps to remove what was perceived to be a danger inherent in the situation, namely that conductors which provided electric power to the light in the bollard were exposed in such a way as to endanger persons who might contact them. The respondent obtained some insulating tape with the intention of wrapping the tape around the exposed wires, so that if anyone came in contact with them during the period before a permanent repair was effected they would be safe from injury. But in the process of doing this the respondent himself was injured; contrary to his assumption, the wires were live at the time he attempted to make them safe with the tape and he received an electric shock.

The reason why the respondent expected the wires not to be energised at the relevant time was that it was about midday; the bollard lights were operated by time clocks which were set to turn the lights off during daylight hours.

The trial judge held that it was hard to see whether the light in the bollard was on during the daytime. His Honour also held that the respondent should not merely have assumed that the wires were not energised, but should have done some sort of test to make sure they were not. Equipment was available, not far away, to enable it to be safely determined whether the wires were live, but even if that had not been so, the respondent could with reasonable safety have touched a screwdriver across the wires to see if they were live.

The judge concluded that a finding of contributory negligence was inevitable, and that was not challenged. The judge also made findings of negligence and breach of statutory duty, as has been mentioned, against the appellant:

i.   Although the respondent had requested a circuit diagram on a number of occasions, that was never provided. The diagram would have shown where the power came from for the lights and other electrical devices of the resort, so that a person who wished to do work on one of the devices could have ascertained where to go to switch off the power in the relevant circuit. There were a large number of switchboards and the judge accepted that it would have been impracticable for the respondent to go to each of them to find out where the relevant circuit could be switched off. Neither the respondent nor his immediate supervisor one Atkinson, who was in the vicinity when the accident happened, knew where to switch off the power to the circuit serving the broken light.

ii.  The judge held that there should have been a system in operation whereby, whenever work was being done on electrical installations, they would be isolated by switching the source of the power off and whereby steps would be taken to ensure that it was not switched on again while the work proceeded.

The judge held that there was no such system in operation, nor "indeed any system at all".

iii. There also should have been, the judge held, leakage devices installed which would, in the event of such an incident as occurred, break the circuit. There was a conflict of evidence on this point, but the judge accepted that such devices were in widespread use at the time and that had one been installed the respondent would not have been seriously injured.

iv.  There was evidence that insulating mats were available and the judge held that had a mat been provided to the respondent and used by him it would have prevented serious injury.

The judge held that such a mat should have been provided.

Generally, the judge held that there was a plain failure in the appellant's obligation to provide a safe system of work. His Honour regarded the failure to ensure that the respondent was aware of the sources of power to the various electrical installations as a serious one, associated with the appellant's failure to institute a system to ensure that the installation upon which the respondent worked was isolated during the time the work was being done. The judge held that matters to which reference has been made constituted breaches of statutory duty and referred to provisions of the Workplace Health and Safety Act 1989 in this connection.

The principal argument, as it seemed to us, in support of the appeal was that the respondent admitted the importance of his own mistake and did so at a number of places in his evidence. For example, one finds this question and answer:

"Well now, I would ask you this, is there not a basic fundamental rule in the matters electrical that you observed when you first go to an electrical installation. Is there not a fundamental rule that you assume whatever it is you go to, is alive?-- That's correct." (40)

To describe that rule as "fundamental" emphasises its importance, but does not assist much in the process of weighing the respondent's error against those for which the appellant was responsible. The concession made by the respondent that what he did was contrary to proper practice was hardly necessary and his having made it cannot much influence the outcome of the case. It is evident that to handle damaged wires, being part of a circuit which should not be live, but might just possibly be live, with voltage high enough to cause serious injury or death, is careless;

the respondent having done so was the immediate cause of his injury. But even experienced tradesmen such as the respondent will occasionally make mistakes in their work, through inattention or perhaps because of long familiarity with electrical work. It is very foreseeable that this will occur, and the judge's findings against the appellant involve the conclusion that nothing was done to guard against the consequences of any such slip; his Honour has also held that means were available to eliminate or greatly reduce the risks of subsequent injury.

One thus has a rather familiar situation: the direct cause of the employee's injury was his own mistake, but the employer was guilty of breaches of duty in failing to take steps which should have been taken to prevent any such mistake from causing serious injury. The way in which liability should be apportioned in such a case is not a legal but a factual question. The primary judge had to assess the importance, to put it broadly, of the respondent's negligence compared with that of the various breaches of which the appellant was guilty. This is a task of a discretionary kind: A V Jennings Construction Pty Ltd v. Maumill (1956) 30 A.L.J.R. 100 at 101; the discretion is a very wide one. Exceptional circumstances must be shown to justify interference with the learned primary judge's apportionment: Watt v. Bretag (1982) 56 A.L.J.R. 760 at 761. As was succinctly stated in Phillips v. Daley (1989) Aust. Torts Reports 80-234 at 68477 by McHugh J A, as his Honour then was:

"Determining the apportionment of responsibility for damages is a task upon which minds notoriously differ. Appellate courts are reluctant to interfere with an assessment of responsibility unless the judge or jury has acted upon a wrong principle or the apportionment is manifestly erroneous".

In our opinion, it is impossible to hold that the apportionment made below satisfies either test; it is not suggested that the judge went wrong in principle. Nor can it plausibly be said that his Honour's conclusion is manifestly erroneous; indeed, we accept that it was a reasonable one. Further, none of the findings of fact his Honour made on the way to his ultimate conclusion is challenged. In the circumstances it seems plain that the appeal on liability must fail.

Damages

The cross-appeal on damages, however, raises questions which are not quite so easily disposed of. The argument for the respondent focused on the primary judge's view with respect to economic loss; it was said that his Honour's conclusions necessarily involved discounting the respondent's economic loss by proportions which could not, on the evidence, be supported. A subsidiary point was that, so it was argued, the judge made too low an estimate of the amount payable for the care bestowed upon the respondent by his wife, under the principle of Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161. The non-economic loss award was $50,000, that for past economic loss $40,000 and that for future economic loss $92,408. Allowances were made for interest, for care and assistance by the respondent's wife, for future medical treatment and special damages. The total damages assessment was $218,851.99.

The plaintiff was born on 10 March 1940; he was nearly 50 years of age when injured, and 53 at the date of judgment. The judge held that the respondent had suffered a serious electric shock which caused a post-traumatic stress syndrome; although it was initially expected that this would resolve itself in due course, it has persisted, and it was common ground that it would be "permanent more or less at the present level" (417). The judge said that:

"The more general condition dealt with by the psychiatrists is, both of them agree, capable of treatment which will significantly reduce, if not entirely obviate it". (417)

It is not immediately obvious what the "more general condition" is. The two psychiatrists were Drs. Rigano and Nothling. The former said, in effect, that with treatment the chances were that the respondent would be able to return to work in an administrative capacity, but not as an electrician (81, 82). In referring to the more "general syndrome" his Honour presumably had in mind what Dr Rigano described as a "panic disorder...a syndrome characterised by sudden extreme bursts of anxiety...patients become phobic". (84)

Dr Nothling expressed the view that if the respondent were "withdrawn from alcohol and...attended for regular psychiatric treatment, that he should be able to return to work perhaps over one or two years, but certainly not to a work situation where he was involved as an electrician, or working with electrical apparatus" (143).

The suggestion which appealed to both psychiatrists that, with treatment, the respondent might be able to handle managerial work has some importance, in view of the following finding by the primary judge:

"I accept [the respondent] as an intelligent man and his work history would suggest that he has some capacity to manage people and to administer".

But the judge later added:

"He is now I think largely unemployable although his prospects of obtaining employment would be increased by treatment..."

The judge accepted that as a result of the passage of electrical current the respondent had some problems falling within the orthopaedic sphere, but his Honour thought those matters not to be "of any great significance in the overall picture". It is important to notice that the judge accepted the respondent as an honest witness (420); malingering was mentioned as a possibility in one of the medical reports, but his Honour has implicitly rejected that suggestion.

The judge held that the respondent would have lost the
employment he had at the time of the accident in early 1992;
that was based on the evidence of the witness B J Lindsay

who worked for the appellant from March 1992 (272). Lindsay said that when he began with the respondent he reviewed staffing and put off an electrician; it is that time - March 1992 - at which, according to the finding, the respondent would probably have been dismissed. The judge commented upon the respondent's position at that point:

"...he would have had difficulty, given his age, in obtaining suitable employment but...given his experience it is likely that he would have been employed during a significant part of the period between the time of the accident and the time of trial".

His Honour assessed past economic loss in the sum of $40,000. That assessment was vigorously criticised by Mr Myers, for the respondent. According to the evidence, if the respondent had continued to work at the wage rates applicable to the employment he had with the appellant, for the whole period from accident to trial, he would have earned a nett sum close to $80,000; that period was about 180 weeks.

It has been mentioned that the judge found that the respondent's employment with the appellant would probably not have been available after "early 1992" which, as has been explained, appears to mean March 1992. If one assumes that the respondent would have been dismissed as soon as Lindsay came to work for the appellant, on 9 March 1992, and further assumes that the rate of earnings producing the figure of about $80,000 would have been steady over the whole period from accident to trial - an assumption slightly favourable to the respondent - then the wages earned before dismissal would have been about $47,000. The respondent, treated by the judge as honest, said that he liked his job with the appellant. He regarded it as his "retirement job" (325). It seems safe to assume that the respondent would have retained it as long as he could.

The judge has not made any finding to support the idea that there was a particular circumstance likely to bring the respondent's employment with the appellant to a premature end - i.e. to an end before, as the judge held, he would probably have lost the job due to Lindsay's rearrangement of the staff. Taking into account the possibility that the respondent would have decided to leave the appellant before Lindsay came on the scene and other adverse contingencies, it is still difficult to see why the loss of earnings up to March 1992 should be assessed at very much less than the figure of $40,000 which the judge has fixed for the whole period up to trial.

The post-Lindsay period, about 74 weeks, remains to be
considered - that is the period from 9 March 1992 to trial.

The judge held in effect that after losing his employment

with the appellant the respondent would have had
difficulties in obtaining employment but:

"On the other hand he had a wide range of experience behind him and I think that it is appropriate to proceed on the basis that his prospects of obtaining some employment were reasonable".

The award rate for an electrician at March 1992 was $418.25. The judge has not made a finding as to the likely average earnings of the respondent after losing employment with the appellant, until trial. However, some notion of his Honour's thinking about that can be derived from the award for future economic loss. His Honour assessed that at 7 years purchase, on the basis of $300 nett per week; if the weekly figure were applied to the period from March 1992 to the date of trial it would produce a loss of a little over $20,000.

It may be thought that the application of the figure of $300 per week (derived from his Honour's calculations of post-trial loss) would be excessively generous as applied to pre-trial loss; there is a heavy discount built into the number of years purchase taken by the judge, namely 7 years.

Further, as was pointed out by Mr Webb for the appellant, the respondent's work history immediately prior to his obtaining employment with the appellant was very patchy, showing a pattern of brief periods of employment and two substantial periods when the respondent did no work at all;

the respondent was apparently in funds at the time, from
previous well-paying employment. Nevertheless, it seems to
us impossible to avoid the conclusion that something has
gone wrong with the judge's calculation of past economic
loss. At the date of the accident the respondent had a well
paying job which suited him and there was no certainty that
he would have lost it as soon as Lindsay came; the judge
has found that when he did lose it he would have had
reasonable prospects of obtaining some employment. We are
respectfully of opinion that the estimate for past economic
loss should have been about $60,000, not $40,000. The judge
allowed interest on $13,500 of the sum of $40,000,
calculated to be $2,835.00. That must increase to $7,035,
calculated on $33,500.

The next subject requiring consideration is future economic loss which was briefly dealt with by his Honour:

"I think it is likely that the employment which he would have obtained would have been such that he would have remained in it until normal retiring age but I apply the appropriate discounts for the various vicissitudes and contingencies of life. I allow $300.00 for 7 years. This produces a present value of $92,408.00".

The discounting was described by Mr Myers as "savage". Whether it deserves that description or not depends upon the view one takes of the facts. Although analysis of the

reasonableness of his Honour's assessment of future economic loss would, with respect, have been assisted if the findings had been somewhat more elaborate, it seems evident from the result that his Honour thought the negative contingencies were substantial.

It is difficult to reconcile his Honour's statement that it was likely that the employment obtained would have been such that the respondent would have remained in it until normal retiring age with the allowance of only 7 years purchase. One would think that must reflect a substantial discount for unemployment during the period of 12 years from the date of trial to the age of 65; but the figure chosen of $300 per week, according to the argument put forward for the appellant, itself included an allowance for broken periods of work.

The respondent is not able to point to any specific error in the judge's treatment of this subject; on the other hand, it may be thought unfair that the rather cryptic character of the statement by way of direct explanation of the assessment of future economic loss should preclude this Court from interfering with it. The malady complained of was largely psychiatric, and so more subject to suspicion than physical liability. However, the respondent was accepted, it appears, as genuine. He had worked at well- paying jobs for most of his career and was held to be "largely unemployable" at the date of trial.

We feel impelled to the conclusion that his Honour's assessment of future economic loss is too modest. Taking the findings at face value, and in particular the finding that the respondent would have remained in employment which he obtained until normal retiring age, it is difficult to see how the discount implied by taking only 7 years purchase can be supported. We do not overlook that the judge has found, as Mr Webb pointed out, some residual earning capacity; nor that there was some prospect of a degree of improvement by treatment. On the whole, we think the figure for future economic loss taken is significantly too low and propose to increase it by $25,000, that being equivalent to an addition of a little over 2 years to the period of 7 years allowed by the judge. Rounding the figures off, the allowance for economic loss, past and future, (including interest on the former) will be increased by $50,000.

The remaining topic is the Griffiths v. Kerkemeyer allowance. His Honour found that the respondent's wife provided assistance in massaging his neck and undertaking some of the household jobs which he would previously have done. The evidence, described as "not very satisfactory", was not such as to enable the judge to identify precisely the extent to which these services were necessary as a result of the injuries. It was held that the respondent's wife's daily life was disrupted by demands by the respondent that she be with him because of his aversion to being alone.

The allowance was based on 2 hours assistance per week in
1990, 1991 and 1992, and 3 hours per week in 1993 and in the
future.

We were referred by Mr Myers to some of the evidence relating to this subject and have studied it. Having done so, we can understand his Honour's difficulty and the description of it as "not very satisfactory". In particular, we agree with Mr Webb's suggestion that the respondent's wife's evidence did not reconcile at all points with that of the respondent. While it is true that, accepting some of what was said literally, a much higher allowance than the 2 and 3 hours per week which we have mentioned could have been justified, his Honour was not obliged to be satisfied that evidence of that kind was correct. We are unconvinced that his Honour's Griffiths v. Kerkemeyer assessment should be increased.

In the result, the cross-appeal succeeds to the extent of raising the allowance for past and future economic loss including interest on the former by $50,000, producing an enhancement of $40,000 in the amount of the award.

The appeal will be dismissed with costs. The cross- appeal will be allowed, with costs, by increasing the judgment given for the plaintiff against the defendant to the sum of $175,056.51.