Morgan v Costello - [2004] WASCA 260

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MORGAN -v- E K and M M COSTELLO T/AS WANNEROO SMASH REPAIRS PTY LTD [2004] WASCA 260

CORAM: MALCOLM CJ
MURRAY J
WHEELER J

HEARD: 5 APRIL 2004

DELIVERED : 18 NOVEMBER 2004

FILE NO/S: FUL 119 of 2002

BETWEEN: JOHN LEONARD MORGAN
Appellant (Plaintiff)
AND
E K and M M COSTELLO T/AS
WANNEROO SMASH REPAIRS PTY LTD
Respondent (Defendant)

ON APPEAL FROM:
For File No              :  FUL 119 of 2002
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
Citation  :MORGAN -v- E M & M M COSTELLO TRADING AS WANNEROO SMASH REPAIRS PTY LTD [2002] WADC 168
File No  :CIV 3644 of 1999

Catchwords:

Torts - Negligence - Assessment of damages - Past and future loss of earning capacity - Future loss of superannuation benefits - Future gratuitous services - Past loss of earning capacity - General damages - Prescribed amount applicable

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA)

Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr D R Clyne

Solicitors:

Appellant (Plaintiff) : Vertannes Georgiou
Respondent (Defendant) : Phillips Fox

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Adams v Ascot Foundry Pty Ltd (1968) 72 SR (NSW) 120
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bowen v Tutte (1990) A Tort Rep 81‑043
Commonwealth v Chessell (1991) 30 FCR 154
Devries v National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 77 ALJR 989
George v Erikson (1998) 27 MVR 323
Gillan v Brannan (1991) A Tort Rep 81‑136
Jones v Hyde (1989) 63 ALJR 349
Kschammer v R W Piper & Sons & Anor [2003] WASCA 298
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Medlin v SGIC (1995) 182 CLR 1
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
State Government Insurance Commission v Toomath (1996) 23 MVR 319
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430
Thomas v O'Shea (1989) A Tort Rep 80‑251
Waddington v Silver Chain Association (1998) 20 WAR 269
Warren v Coombes (1979) 142 CLR 531
Yammine v Kalwy (1979) 2 NSWLR 151

Case(s) also cited:

Dossett v TKJ Nominees (2003) 202 ALR 428
Mills v Shire of Mundaring, unreported; FCt of SCt of WA; Library No 970403; 15 August 1997
Newman v Nugent (1992) 12 WAR 119
Paris v Stepney Borough Council [1951] AC 367
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Rosniak v GIO (1997) 41 NSWLR 608
Saade v Fruci [2003] NSWCA 168
Ta v Lucky Import & Export [2002] WASCA 65
Wade v Allsopp (1976) 10 ALR 353
Watts v Rake (1960) 108 CLR 158
Wright v Shire of Albany (1993) A Tort Rep 81239

MALCOLM CJ: This is an appeal against a judgment of her Honour Judge Deane in the District Court on 7 August 2002 by which her Honour dismissed the appellant's claim for damages for personal injuries. The learned trial Judge found that the appellant's injuries were caused by the respondent's negligence, but the damages suffered by the appellant in respect of future pecuniary loss were assessed to be $35,673 which was less than the threshold amount for the purposes of s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA), namely, $109,650, at the material time. It was for that reason that the appellant's claim was dismissed. It follows that the appeal is only concerned with the assessment of damages including, in particular, the award of damages for future loss of earning capacity and future loss of superannuation entitlements.
The appellant also seeks orders that the provisional assessment by the learned Judge of the appellant's damages in the sum of $273,565.12 be set aside and that in lieu thereof the respondent pay to the appellant such sum by way of damages as assessed by this Court. As amended by leave at the hearing of the appeal, the grounds of appeal are:
"A.The learned trial Judge's assessment of $29,975.00 as being the appropriate award to the appellant for future loss of earning capacity was so inordinately low as to be a wholly erroneous estimate of damage and was wrong in fact and law.
B.The learned trial Judge's assessment of the sum of $2,698.00 as being the appropriate award for future loss of superannuation benefits was so inordinately low as to be a wholly erroneous estimate of damage and to be wrong in fact and law.
C.The learned trial Judge's award of $1,000.00 for future gratuitous services (at Reasons [102]), was so low such as to warrant adjustment by the Full Court, particularly having regard to the evidence germane to this issue, as well as her Honour's award for past gratuitous services in the sum of $2,000.00.
D.The learned trial Judge's assessment of $71,200.00 as being the appropriate award for past loss of earning capacity was so inordinately low as to be a wholly erroneous estimate of such damage and to be wrong in fact and law.
E.The learned trial Judge's assessment of $18,000.00 as being the appropriate award for general damages for pain, suffering and loss of amenities was so inordinately low as to be a wholly erroneous estimate of damage and was wrong in fact and in law.
F.The ruling by the learned trial Judge that the prescribed amount as at the date of trial was $130,000.00 was wrong in law."
Each of those grounds was supported by particulars to which I will refer in the relevant context.

The Appellant's Case at Trial

On 18 March 1998, the appellant was injured in an accident in the course of his employment at the respondent employer's premises, which was found to have been caused solely by the negligence of the respondent. On the morning of that day, the appellant attempted to pull and slide a large heavy door open and, while he was pushing the door, it came off its lower guide rail or track and came to a sudden halt, which resulted in the injuries which he suffered.
It was found the respondent was negligent in that, being aware that the door had a tendency to come off its tracks, it failed to undertake repairs to prevent this recurring, with the result that the system of work and the workplace itself were unsafe. As a result of the accident, the appellant suffered a traction type injury to his right forearm and to the base of his neck on the right side, with accompanying subacromial bursitis.
While it denied liability for any subsequent loss or damage as a result of the alleged accident, the respondent pleaded that if any incapacity, loss or damage to the appellant was found to exist, it was caused or materially contributed to either by an injury to the appellant's shoulder and neck on the preceding evening, while he was playing indoor cricket, or as a result of a motor vehicle accident in which the appellant was involved, after the accident at the respondent's premises and while the appellant was driving to a nearby doctor's surgery in order to seek medical treatment. The respondent also pleaded that if any incapacity, loss or damage was caused as a result of the alleged accident then it was of a transient and minor nature only and was not causative of any pleaded disability or incapacity alleged by the appellant.
Finally, and in any event, the respondent contended at the trial that the appellant had a retained capacity to work in a variety of occupations and had failed to mitigate his loss and damage by seeking employment in any of those occupations.
It was common ground at the trial that, in order to obtain an award of damages, if the respondent was found totally or partially liable to the appellant in respect of the alleged accident, the appellant was required to establish future pecuniary loss in excess of $130,609, being the threshold amount as from 1 July 2002 pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) as it applied at the relevant time. At the appeal, however, it was common ground that the correct prescribed amount was $109,650 as previously indicated.
The appellant was born on 3 August 1960 and was nearly 42 years of age at the time of the trial. He completed his schooling at the age of 15 before commencing an apprenticeship as a spray painter in 1975. He was very successful in this endeavour and worked in the industry as a spray painter almost continuously, save for two breaks that he took to minimise his exposure to isiocyanate paints, which are used in the spray painting industry and can cause health problems. During the two periods in question the plaintiff worked as a trades assistant for about 2½ years for O'Donnell Griffin in the early 1980's and as a nightshift moulder making concrete pipes for CSR Humes in the mid‑1990's again for about 2½ years.
On 8 September 1997 the appellant commenced work with the respondent as a spray painter. He worked from 8.00 am to 4.30 pm daily. According to the appellant, his duties as a spray painter were physically strenuous, but he enjoyed the work which he carried out unsupervised because of his level of experience. His evidence was that he intended to work in that capacity until he attained the age of 65 years.
The appellant was not married and was not in a permanent domestic relationship, although he did say that, after the accident, he was in a relationship with a woman for a short time, but that came to an end. The appellant had no dependents and both his parents were deceased. He had six older sisters, one of whom, Mrs Baikauskas, visited his home from time to time and carried out some limited domestic duties to assist him. The appellant lived in rented premises which he shared with a male housemate, who also carried out some limited domestic duties.
At the trial, it was suggested that the relevant injuries had been suffered when the appellant had been playing indoor cricket on the evening prior to the accident. In this respect, her Honour found that there was nothing in the medical evidence that supported that suggestion.
After the accident, the appellant was directed to report the accident at the office, which he did. The receptionist, Ms Vladich, confirmed that the appellant came to the office on the day in question and informed her that he had hurt his shoulder and intended to seek medical attention. She gave him the address of a Dr Wong to whom such accidents were usually reported.
The appellant then drove his Suzuki Sierra vehicle along Wanneroo Road intending to attend the Joondalup Hospital. In the course of the journey, he decided to stop at an x‑ray clinic, but the clinic was not yet open and he did not have a referral. Consequently, he got back into his vehicle and continued driving along Wanneroo Road.
He said he experienced severe pain in his right shoulder and felt the shoulder area seizing up, so he stretched his arm out of the window to loosen the stiffness. He then found he had difficulty turning his neck. He was stretching his neck in the opposite direction away from the arm which was extended out the window and attempting to rotate his neck to get some flexibility.
In the course of this manouevre, he was not paying proper attention to the traffic with the result that, at the intersection of Wanneroo Road and Ocean Reef Road in Wanneroo, he collided with a Toyota four‑wheel drive vehicle which had stopped about three to four car lengths in front of him. He collided with the Toyota travelling about 50 km per hour. As a result he said he struck both of his knees on the dash and hit his nose on the sun visor, but did not experience any other significant painful symptoms, except for those he had sustained in the accident with the sliding door. He said the seatbelt which he was wearing across his right shoulder left no marks as a result of the impact of the sudden collision. As a consequence he sustained some damage to his motor vehicle which he said cost approximately $1,600 to repair.
The learned Judge found that no incapacity, loss or damage sustained by the appellant was caused or materially contributed to by any injury sustained while he was playing indoor cricket the night before the accident with the sliding door. That finding is not contested in the appeal.
As to the motor vehicle collision, her Honour found in par [86] of her reasons that:
"There is conflicting evidence as to the precise manner in which the motor vehicle collision involving the [appellant] occurred in the course of the driving to Dr Wong's surgery. Whilst I consider the [appellant's] sworn evidence as to this matter to be in contradiction to a number of his answers to interrogatories, in the final analysis I take the view that there is nothing in the medical evidence, taken as a whole, which would support the proposition that the injury to the [appellant's] right shoulder in particular and the right side of his neck in general was in any way substantially caused by his involvement in that collision."

Ground A: Future loss of earning capacity

Ground A, supported by some eleven particulars, contended that the assessment of the appellant's future loss of earning capacity of $29,975 was so inordinately low as to be a wholly erroneous estimate of damage and was wrong in fact and law.

Ground A(i)

Particular (i) of ground A is in fact a concession that the learned Judge correctly found that by reason of the injuries he suffered in the accident, the appellant permanently lost his pre‑accident capacity to work and earn income as a spray painter.
Her Honour concluded in par [87], however, that despite the evidence of the appellant that he intended to work until 65 years of age, that intention would not have "come to pass". As her Honour found, the work in which the appellant was engaged was, on his own admission, comparatively physically strenuous. His medical history indicated that, prior to the accident, on 18 March 1998, he suffered from a variety of physical ailments, including neck pain and breathing problems. Her Honour also said in par [87]:
"There is also the issue, which arises on the [appellant's] own evidence, of health concerns which could well occur if an individual works continuously for many years in an industry where there is regular exposure to chemicals which are believed to contain a degree of toxicity. In my view this would be very likely to shorten the working life of an individual such as the [appellant], who clearly is prone to chest infections and associated breathing problems as well as having a pre‑disposition to psoriasis. In addition the strong impression from the bulk of the medical evidence was that it would be most unlikely for someone in the [appellant's] circumstances and in the occupation of spray painter to work beyond 60 years of age in that capacity. For this reason I consider that the [appellant], all things being equal, would have worked to 60 rather than 65 years of age. He did not give evidence that it was his intention to move into a supervisory role within the industry."
On the basis of the evidence, the learned Judge found that the appellant had a retained capacity to work in a variety of occupations. Her Honour went on to say in par [89]:
"It is of some concern that the [appellant] at the time of trial had not sought employment as actively as he may have done given his retained capacity. His only occupation has been driving for 12 hours per week for three months in 2000 which even Dr Quinlivan felt hardly tested his ability to work. According to the [appellant's] evidence he had applied for 15 jobs and sent off three résumés but there was not a great deal of detail supplied regarding these efforts. He specifically advised his rehabilitation providers in May 2000 that he had a driving job and did not require any other employment. In the light of all of the evidence, including the medical evidence, I totally reject the [appellant's] contention that he is too stressed to carry out 40 hours work of a lighter nature per week."
Her Honour also made the following findings in pars [90] – [93] as follows:
"90.I also do not accept that by reason of temperament and lack of impulse control the [appellant] is unsuited to carrying out an occupation that places him in a position whereby he is required to deal with members of the public. He did not present in this way during the course of giving his evidence. He has generally had steady and consistent employment in the past which indicates he has no significant problems in interacting with people.
91.Furthermore he has played team sports and had no difficulty in participating in his driving job for Truemix International, which had distinct public relations features. Mr Winters, with whom he used to work at the defendant's premises, recalled in his evidence that the [appellant] would have a social chat to him before commencing work on most mornings once more indicating in my view that the [appellant] is capable of positively interacting with others in the workplace.
92.On occasions in the past the [appellant] has experienced episodes of loss of temper (usually associated with excessive consumption of alcohol). There is, however, no evidence before the Court of any formal psychological or personality problems that would in reality prevent him from undertaking the type of work many of the treating medical practitioners say he can do.
93.On balance I do not consider that the [appellant] would find this type of work more difficult to obtain than others of similar age and background."

Ground A(ii)

Ground A(ii) contended that the appellant had a pre‑accident propensity for panic attacks which reduced his suitability for employment as a static security guard.
In par [88] the learned Judge concluded that:
"On all of the evidence I have no difficulty in accepting the argument put on behalf of the defendant that the plaintiff has a retained capacity to work in a variety of occupations."
I have set out pars [89] – [93] of the judgment.
So far as the possibility of the appellant being employed as a security guard is concerned, the finding made by the learned trial Judge in pars [110] – [111] was as follows:
"110.I consider that as from 18 March 2000 the plaintiff was and has been fit to undertake full-time work as a static security guard. I further take the view that in the light of the evidence given by Mr Caffery and Mr Yeo such work would have been available in all likelihood to the plaintiff thereafter. The plaintiff's tax returns indicate that on his gross salary of $33,800 per annum he was earning $650 gross per week or $512 net per week. The figures relevant to the Security Officers (Western Australia) Interim Award 1996 (Federal) indicate that the plaintiff would be capable of earning approximately $440 gross per week or $368 net per week. This is without factoring in any increase in salary by way of penalties for shift work. It is not possible to say what precisely the plaintiff would have earned or would earn if he undertakes this occupation as there is no precise evidence as to what penalty rates, if any, would apply because it is not known what shifts would be available to the plaintiff or what shifts he would be prepared to undertake. For this reason I consider it fair to allow a loss of $50 net per week to apply to age 60 when, as I have found, the plaintiff would have ceased work. The plaintiff's future economic loss is therefore;
$50 x 599.5 (6% multiplier for 19 years from age 41 to age 60 years) = $29,975.
111.Due to a number of uncertainties and imponderables that apply in these particular circumstances I do not consider it appropriate to reduce that figure to take account of contingencies."
As noted by the learned Judge in par [76] of her reasons, Dr Fong saw no reason why the appellant could not undertake a work trial as a security guard and was unaware that a three‑month work trial had been organised with Chubb Security for this purpose.

The real question raised by ground A(ii) is whether the learned Judge was in error in finding, as her Honour did, that the appellant was "suitable" for full‑time work as a static security guard since March 2000. The appellant's employment history was that he left school at the age of 15, became an apprentice spray painter in 1975 and worked in that employment until the accident, except for two short periods of 2½ years each when he was employed as a labourer. It was conceded on behalf of the appellant that it was open to her Honour to find on the evidence that the appellant had the physical capacity to work as a static security guard, but it was contended that the learned Judge overlooked the evidence that the appellant had a pre‑accident propensity for panic attacks, which would have reduced his suitability for such employment.
In my opinion, her Honour's findings in pars [88] – [93], to which I have referred, did not identify anything which would have prevented or reduced the appellant's suitability for employment as a security guard. It was contended, however, that the learned Judge only considered the appellant's "temperament", "lack of impulse control" and "loss of temper" in her reasons at par [33], in dealing with the evidence of Dr Quinlivan, who had been the appellant's general practitioner for some 26 years. Her Honour noted in par [33] that:
"The [appellant] also has a longstanding history of panic attacks and some anger management problems which would appear to be exacerbated by alcohol use."
As her Honour noted in par [45] in August 2000, Dr Quinlivan had recorded that the appellant complained of panic attacks and stress and informed her that he had "packed in job" as recorded in her notes, being a reference to his job as a driver with Truemix International, which he had undertaken rather than pursue the possibility of becoming a security guard. In pars [47] – [49], her Honour said:
"47.Dr Quinlivan's evidence was at odds with that of the [appellant] in an area that I consider to be of particular importance and significance. In his proof of evidence the [appellant] said that he underwent a training course with Chubb Security to become a static security guard in February 2000. That course was of approximately one week's duration and there is no dispute that the [appellant] undertook and completed it without any difficulty whatsoever. According to the [appellant's] proof of evidence he did not apply for a licence as a security officer nor did he undergo the proposed work trial with Chubb Security. Part of the reason for this, according to the [appellant], was that he has a criminal conviction.
48.Upon questioning at trial it transpired that the relevant conviction was recorded many years ago when the [appellant] was in his early 20's and it would not seem to me to be of a nature which would preclude the [appellant] from obtaining a police clearance in February 2000. The major reason, however, that the [appellant] gave for not undertaking the work trial was that he claimed Dr Quinlivan advised him that work as a security guard was physically unsuitable for his condition. As a result of this advice the [appellant] said that he obtained a job working as a driver for approximately 12 hours per week with Truemix International in May 2000. He received about $12 gross per hour for this job, which entailed driving females around to promotional events in an Oldsmobile. This work came to end in August of 2000 and the [appellant] has not worked since.
49.Dr Quinlivan was most explicit in her evidence that she never advised the [appellant] that he could not undertake work as a static security guard and indeed she expressed considerable surprise that his rehabilitation providers did not pursue the [appellant] to take up this work. In her opinion he was physically capable of undertaking that work for about 15 hours per week when she reviewed him on 9 March 2000. Although she did not sign a document faxed to her by Active Injury Management under cover of letter of 2 March 2000, Dr Quinlivan has nonetheless ticked a box indicating that she had reviewed the work trial programme proposed and approved of it. Her restrictions are noted as applying. Dr Quinlivan stated in her evidence relevant to the form that she would have received it. She assumed that the rehabilitation providers would have telephoned her."
The learned Judge noted in par [51] that there was additional conflicting evidence on the question of employment as a security guard. On 9 May 2000, the rehabilitation providers were informed by the appellant that police security licensing had lost the letter from Chubb Security, which the police required in order to give him a clearance to undertake the work trial. In this respect, the learned Judge commented as follows:
"It was my impression that the [appellant] was rather vague and somewhat evasive in his evidence regarding the events of April 2000 or thereabouts with respect to undertaking the work trial, but it would appear that in May 2000 the [appellant] further advised Active Injury Management that he had a job with Truemix International and did not require other work to be provided. It does not appear that he ever informed his rehabilitation providers that as far as the [appellant] was concerned Dr Quinlivan had advised him not to undertake the work trial as a security guard. If he had done so of course this would have been entirely contradictory to Dr Quinlivan's attitude on the matter."
In a report dated 28 August 2000, Dr Quinlivan referred to consultations with the appellant on 27 June, 28 July and 15 August 2000 "to discuss the stress he was feeling and panic attacks he was getting and flare‑up of ulcer pains" which were not billed as worker's compensation as his case had been closed. The evidence suggested that the panic attacks may have resulted from shortness of breath in the context of his former employment involving sanding cars as well as spray painting. In that context, Dr Quinlivan was cross‑examined about an entry in her notes of a consultation with the appellant on 9 October 1994 as follows:
"Gets hot then feels the necessity of taking a really deep breath. Going to get other job not sanding cars."
Her evidence was that:
"Sanding cars wasn't ideal. The spray‑painting I don't think was so bad. The sanding cars was not ideal for anybody that has any possibility of getting asthmatic responses, with chest infections, but he didn't do that, he kept working at it."
At that time the appellant indicated an intention to get another job which did not involve sanding cars.
There was also a referral by Dr Quinlivan in 1987 to a Dr Knezevic to examine the possibility whether the "so-called panic attacks" were due to hyperventilation. The appellant was subsequently prescribed Propranolol for "possible" temporal lobe epilepsy.
Reliance was placed on a significant body of other evidence in this context. The appellant's sleeping problem was treated from 1993 with Sinequan, which was a medication originally developed for depression, but found, according to Dr Quinlivan, to be very good for regulating normal sleep patterns and ensuring a proper rest at night. It was commented that the appellant had "done quite well on it". He was also prescribed Depo‑medrol which, it was said, "always gives temporary relief" and sometimes gives permanent relief.
There was a record in 1984 of the appellant being prone to panic attacks, as well as him becoming agitated and displaying bouts of anger and fighting, a lot of which "was precipitated by alcohol consumption". In cross‑examination, the appellant agreed that he had suffered panic attacks for many years before the accident. The neck pain suffered by the appellant appears to date from a motor cycle accident in 1986 and a motor vehicle accident in 1990 when a car ran into his vehicle from behind.
There was evidence that the appellant had complained of anxiety symptoms and panic attacks in July 1987 and that, before that time, he had undergone hypnotherapy with a Mr Brian Allen. This worked for a while and then the appellant started getting anxiety and panic attacks again, which were found by Dr Fisher possibly to be temporal lobe epilepsy.
As a result of an argument, he ceased to be treated by Dr Fisher and was referred to Dr Knezevic. He had an EEG which showed some "left temporal lobe epileptic focus". He was prescribed further Tegretol and also gave up drinking and smoking for six years from 1987 to 1993. In a medical report at the time, it was recorded that some of the appellant's episodes were "almost certainly panic hyper‑ventilation attacks, tension vascular headaches". Propranolol was prescribed.
In September 1987, there was a report of "severe headaches present all the time" for which the appellant was taking six Aspros a day and was being violent. The appellant explained this in the following passage in his evidence at the trial:
"Do you recall having bouts of severe headache?‑‑‑Yes, sir.
And being violent?‑‑‑Yes, sir.
What do you mean by 'violent'?‑‑‑If someone upsets me I used to get a bit stirred up.
And, what, fight?‑‑‑I'd just yell and scream a bit.
Was that happening at work?‑‑‑Could've done, yes.
Did that cause you any problems in your employment?‑‑‑No, not really."
It also came out in cross‑examination that in September 1987 he was breathalysed with an excess quantity of alcohol after being stopped by police.
It was submitted that, as a matter of common sense, persons who are prone to panic attacks are not suitable to work as security guards, statically or otherwise. Further, it was contended that such work would logically require the appellant to have the physical capacity to defend himself if assaulted, thereby running the real and not remote risk of aggravating his accident‑caused injury or further injury.
In this context, her Honour said in par [96] that:
"The [appellant's] panic attacks and insomnia have been present for a number of years predating the accident as has his neck pain for which he received fairly extensive treatment prior to the accident. The [appellant] also suffered a variety of conditions such as gastric reflux and headaches well prior to the accident and I cannot see any evidence which suggests that the result of the accident has been to worsen these conditions or to contribute to them in any significant way. The [appellant] has been assessed by a number of doctors as essentially having about a 20 to 25 per cent disability of the right shoulder."
Her Honour went on to conclude in par [97] that:
"In viewing the video surveillance tapes and in considering the [appellant's] evidence, I cannot see that his general social life is unduly restricted by pain or any other condition which might be said to be a result of the accident. The [appellant] has undergone three lots of surgery to his right shoulder area with associated injections and physiotherapy. It must be noted of course that each surgical procedure carried out by Mr Janes was a day procedure. In all of the circumstances I consider that an award of $18,000 by way of general damages is appropriate to reflect the above matters."
In this context, the relevant principle to be applied was that laid down by this Court in Thomas v O'Shea (1989) A Tort Rep 80‑251 in which Malcolm CJ and Wallace J said at 68,701:
"This was clearly a case where, as the learned Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at p. 657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at p. 550 per Bray CJ; and Linsell v Robson [1976] 1 NSWLR 789 at pp. 253-254 per Hutley JA; and at pp. 254-255 per Glass JA. In Baird v Roberts [1977] 2 NSWLR 389 it was held that a defendant who seeks to show that the plaintiff can still do 'light work' or follow a 'sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be."
According to the rehabilitation provider called by the respondent, a work trial is neither a job nor a promise of a job. Mr K K Yeo, a qualified occupational therapist and a case manager with active injury management who worked with the appellant, identified the possibility of employment as a static security guard with Chubb Security. The appellant undertook and passed the security course easily. Arrangements were then made for a three‑month work trial with Chubb as a static security guard. It appears that this was not followed up because the police security licensing centre lost the letter from Chubb Security. The appellant subsequently informed Mr Yeo in early May 2000 that he had obtained part-time employment with Truemix International as a driver working two hours per day. As appears from par [50] of her Honour's reasons, Dr Quinlivan considered that the work that the appellant undertook as a driver for promotional events was trivial and "not a form of proper work for him". It was in these circumstances, the appellant indicated that he did not wish to pursue employment in the security industry.
At that time, the appellant had a medical clearance to undertake the security work. Mr Yeo then recommended that the appellant's file be closed for the following reasons:
"It appears that his current work as a driver is appropriate and I will continue to encourage him to increase his work hours as a driver. I do not believe that ongoing vocational rehabilitation assistance will be of benefit for Mr Morgan. He has been provided with the necessary training to work in the security industry, which has been medically approved."
In my opinion, it was open on the evidence before the learned trial Judge to conclude, on the balance of probability, that the appellant had a reasonable prospect of obtaining work as a static security guard, although there were necessarily some risks. The evidence also indicated that the appellant had a reasonable prospect of employment as a chauffeur or driver.
There was evidence that in his pre‑accident employment, the appellant had been earning at the rate of $512 net per week, whereas the minimum rate applicable to work as a static security guard was $368 net per week without penalties.
It was contended on behalf of the appellant that the learned trial Judge incorrectly assessed damages for future loss of earning capacity on the basis that it was a certainty that employment as a static security guard would have been open and available to the appellant to age 60, regardless of his injury, whereas the evidence merely established that there was a chance that the appellant could succeed in obtaining that employment in the future, if successfully trained, and/or if there was behaviour or personality modification and/or successful treatment for panic attacks.
In this context it was contended that Dr Quinlivan's historical certification that the appellant was medically fit for a work trial as a static security guard for up to a maximum of 15 hours per week with restrictions was not a certification that he could work full‑time as a static security guard. The evidence of the rehabilitation provider called by the respondent was that the work trial was not a job, but employment for a probationary period. It was conceded that there were no guarantees that there would be work available to him at the end of that period. Mr Yeo also gave evidence that the driving job the appellant found for himself working 12 hours a week was a suitable job for him.
Given that a work trial was neither a job nor a promise of a job, the respondent needed to plead and prove an unreasonable failure by the appellant to mitigate his loss: cfKschammer v R W Piper & Sons & Anor[2003] WASCA 298 at [157] and [165] per Malcolm CJ (with whom Murray and Parker JJ agreed); Thomas v O'Shea (supra) at 68,701 – 68,702 per Malcolm CJ and Wallace J, citing with approval Adams v Ascot Foundry Pty Ltd (1968) 72 SR (NSW) 120; and Medlin v SGIC (1995) 182 CLR 1 at 22 – 23 per McHugh J.
It was submitted that the learned Judge wrongly found that the appellant had failed to mitigate his loss. In par [6], her Honour noted that the respondent contended that the appellant had a retained capacity to work in a variety of occupations and had failed to mitigate his loss and damage by seeking employment within those areas. In par [104] her Honour's conclusions in respect of past economic loss were:
"In the light of all of the evidence I accept the submissions made on behalf of the [respondent] relevant to this category of damages. The loss from 18 March 1998 to 18 March 2000 when the [appellant] was fit to undergo a fully funded work trial with Chubb Security, with the very distinct probability of permanent employment thereafter can be calculated as follows;
$33,800 per annum = $650 gross per week or $512 net per week.
$650 gross per week (to include the allowance pursuant to Fox v Wood (1981) 148 CLR 438) x 104 weeks = $67,600.
Thereafter the loss from 18 March 2000 to trial in August 2001 is
72 weeks at $50 net per week = $3,600."
The total past economic loss as computed by her Honour was $71,200. In that context it was noted by her Honour that counsel for the appellant conceded that the workers' compensation payments to the date of trial had met the appellant's past economic loss.
It was contended on behalf of the appellant that the failure or refusal to undergo the work trial as a static security guard could not amount to an unreasonable failure to mitigate because the appellant chose to work 12 hours per week as a limousine driver. Dr Fong said that while in hindsight this choice might be viewed as "unwise", the fact that "he had two options and he chose one of them" did not amount to an unreasonable failure to mitigate. That, of course, was a matter for the Court to decide. The rehabilitation provider, Active Injury Management, was said to have considered his return to work as a part-time driver as "appropriate". In fact, Mr Yeo had recommended that the appellant obtain his security licence and then commence a three‑month work trial with Chubb Security. It is clear from his letter dated 27 March 2000 that his recommendation that the appellant continue working as a driver on a part‑time basis was pending the commencement of the work trial. It is also apparent from the letter that Mr Yeo also recommended ceasing vocational rehabilitation assistance to the appellant, if he did not wish to pursue work as a security officer, and that further work placement activities would not be recommended as being productive. It was suggested it would be appropriate to counsel the appellant regarding pursuing work as a security guard but, as an alternative, Mr Yeo said he would speak to the appellant about increasing his hours as a driver.
In my opinion, the evidence was such that it was open to the learned Judge to find that the appellant's work history, notwithstanding the potential for panic attacks, was such that he had a reasonable prospect of obtaining employment as a security guard. It follows that ground A(ii) has not been made out.

Ground A(iii)

Ground A(iii) contended that the appellant, by reason of his accident‑caused injuries, had a reduced ability to drive for prolonged periods of time without a break which would have reduced his employability as a chauffeur, courier driver or taxi driver.
In this context, her Honour found at par [67] that Mr Janes:
"… was clear in his evidence that the [appellant] is fit to undertake a variety of occupations. On 20 January 2000 he considered that the [appellant] was fit to undertake work as a static security guard and further he considered that the [appellant] could undertake work as a driver, if he avoided heavy lifting above the shoulder. He also considered that the [appellant] was physically fit to undertake work as a sales representative subject to that particular restriction."

The learned Judge also accepted the evidence of Mr Williams who was of the opinion that the appellant could undertake a driving job, although there may be some limitation in the number of hours to be worked. He also recommended swimming as a form of rehabilitation.
In par [73] her Honour noted Dr Fong's opinion that the appellant was fit to carry out light duties, such as driving. Dr Fong also saw no reason why the appellant could not undertake a work trial as a security guard and was unaware that such a trial had been organised for the appellant.
In par [77] her Honour noted that Professor Skirving, speaking of the appellant's physical rather than vocational abilities to undertake alternative employment, considered that the appellant had "a very significant alternative work capacity and could carry out work as a salesman in the paint industry or a range of jobs driving a motor vehicle, providing he avoided repetitive activity above shoulder height". He assessed the appellant as having a 25 per cent loss of function of the right shoulder at or about the elbow.
As noted by the trial Judge at par [59], Dr Clarke considered that the appellant had "… a generally good prognosis for recovery, especially if he avoids lifting or work above shoulder height".
Significantly, the learned Judge said in par [78] of her reasons:
"Mr Yeo from Active Injury Management gave evidence and through him a very large number of reports being Exhibit D3(1 – 35) were tendered. These cover the involvement that the organisation had with the plaintiff between 17 April 1998 and 29 June 2000 with a view to assisting him to return to work and recover from his alleged injury. It is unnecessary to detail the contents of all of these reports save to note that this organisation appears to have worked most persistently and consistently aiming to assist the plaintiff in his rehabilitation with the objective of rejoining the workforce in some capacity. I do not consider that the plaintiff has been as cooperative or as forthright with his rehabilitation providers as he should have been for example with reference to the earlier comments regarding Dr Quinlivan's opinion as to his ability to undertake the static security guard work trial and his failure to advise them of the true situation."
At par [72] the learned Judge summarised the evidence of Mr Williams as follows:
"When he reviewed the [appellant] in February 2001 Mr Williams considered that there had been a significant improvement to his right shoulder as reflected by an increased range of movement. He considered the neck problem to be a soft tissue injury, which he believed would settle over time. As to the [appellant's] work capacity Mr Williams was of the opinion that he could not return to work as a spray painter and would have to undertake a lighter form of employment avoiding heavy lifting and repetitive duties. He considered that the [appellant] could undertake a driving job, although there may be some limitation in the number of hours to be worked. As a form of rehabilitation he recommended swimming."
There was no significant evidence to the contrary of this body of evidence which, in my opinion, fully supported the finding made by the learned Judge. It follows that ground A(iii) has not been made out.

Ground A(iv)

Ground A(iv) was that:
"The learned trial Judge found that the appellant in his injured state had the physical capacity to work as a static security guard and that most static security guards employed by Chubb earn a minimum of $439.60 gross per week which wage was often supplemented by penalties allowances."
This ground does not challenge any finding made by the learned Judge but reflects her Honour's finding in par [110] that under the Security Officers (Western Australia) Interim Award 1996 (Federal) the appellant would be capable of earning $440 gross or $368 net per week. This was without factoring in any increase in salary by way of penalties for shift work as there was no evidence of what penalty rates would apply, because it was not known what shifts would be available to the appellant, or what shifts he would be prepared to undertake. On this basis, her Honour concluded that it was "fair to allow a loss of $50 net per week to apply to age 60 when the [appellant] would have ceased work".
The future loss of earnings was calculated as follows in par [110]:
"$50 x 599.5 (6% multiplier for 19 years from age 41 to age 60 years) = $29,975."
Due to "a number of uncertainties and imponderables that apply in these particular circumstances" the learned Judge concluded in par [111] that it was not appropriate to reduce that figure to take account of contingencies. In my opinion, it has not been established that the learned Judge was in error in adopting the approach which I have described. It follows that ground A(iv) has not been made out.

Ground A(v)

Ground A(v) was that:
"In his pre‑accident employment the [appellant] had been earning at the rate of $512.00 net per week whereas the minimum rate applicable to work as a static security guard was $368.00 net per week without penalties."
This was the finding by the trial Judge, although the amount pleaded in the statement of claim was $403.18 per week without penalties. In my opinion, this particular does not advance the matter or challenge the finding to which I have referred in the discussion of ground A(iv).

Ground A(vi)

Ground A(vi) was that:
"The learned trial Judge incorrectly assessed damages for future loss of earning capacity on the basis that it was a certainty that employment as a static security guard would have been open and available to the appellant (plaintiff) to age 60 regardless of his injury whereas the evidence merely established that there was a chance that the appellant (plaintiff) could succeed in obtaining that employment in the future if successfully trained and/or if there was behaviour/personality modification and/or successful treatment for panic attacks."
It was conceded that this contention was correct, but, in my opinion, the contingency of not finding work had to be balanced against the learned Judge not discounting for all negative contingencies, while at the same time acknowledging that there was ample evidence of the appellant's fitness for the other occupations which I have described. For these reasons, Ground A(vi) has not been made out.

Ground A(vii)

Ground A(vii) was that:
"The learned trial Judge incorrectly assessed the award for future loss of earning capacity on the basis that the earnings from employment as a static security guard would be no less than $462.00 net per week ($50.00 net per week less than the net weekly wage which the appellant (plaintiff) had been earning in his pre‑accident employment as a spray painter) when such finding was not reasonably open on the evidence."
In my opinion, the finding made by the learned trial Judge at par [110] was clearly open on the evidence. Ground A(vii) has not been made out.

Ground A(viii)

Ground A(viii) was that:
"The learned trial Judge correctly found that there was no precise evidence as to what penalty rates or shift allowances would apply to employment as a static security guard but erred in law in failing to attach any or any proper weight to such finding in determining the net weekly rate applicable to such employment."
In my opinion, there was no demonstrable error in the approach adopted by the learned Judge. Having regard to the state of the evidence, it was not possible to make a precise calculation. In such a case where precise proof is unattainable in respect of future events, it is appropriate to adjust the amount of the award to reflect the degree of probability of such an event occurring. As Deane, Gaudron and McHugh JJ said in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643:
"The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at pp 212 and 219, and McIntosh v Williams [1979] 2 NSWLR 543 at pp 550 – 551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
It was contended on behalf of the appellant that there was no evidence that he would succeed in obtaining a police clearance certificate. Consequently, it was submitted that her Honour was in error to disregard this mandatory requirement, or speculate about how the Police Department would have regarded his past criminal conviction, in the absence of any admissible evidence on the issue. The relevant practice of the police service was said not to be a matter in respect of which judicial notice could be taken. In my opinion, however, given that the appellant was accepted for training and a work trial with Chubb Training Services, it is implicit that Chubb, who would be expected to be aware of the relevant requirements, considered that it was worthwhile for the appellant to undertake the relevant training. The fact that Chubb provided him with a "letter of intent to employ" the appellant also implies that Chubb believed there was a reasonable prospect of obtaining a security licence. I have set out earlier in the reasons the conclusions of the learned Judge in pars [90] – [93]. As previously stated, I consider those findings to have been open on the evidence.
It was submitted, however, that the clinical notes of Dr Quinlivan demonstrated a long‑standing tendency on the part of the appellant toward aggression, culminating in numerous violent outbursts over the years. When Dr Fong was made aware of this, he expressed concerns regarding the appellant's suitability to work as a security guard. It was put to Dr Fong in cross‑examination that the appellant's surgeon had assessed work as a security guard being appropriate for him. Dr Fong said that, as a member of the Department of Rehabilitation Medicine and a rehabilitation physician, he took the whole situation about the patient into account, as opposed to an orthopaedic surgeon who may look at things specifically having regard to just a physical capacity. Dr Fong expressed the view that there were personality and behavioural issues that had come up which did have an impact. On the information available to him at that time, however, he did not see any reason why he should not have worked as a security guard. Having seen Dr Quinlivan's notes which recorded anger problems and periodic binge drinking, he concluded that the appellant would not "be of a really stable functioning to really act in a fairly challenging role". He expressed the view that:
"… security guards, to do their job properly, need to really be in control of their emotions at all times and to really exhibit a high level of judgment."
He agreed, however, that, if the appellant had got over his anger problems, as the appellant himself said in his evidence, that would reduce one of the barriers. If he had stopped his binge drinking, that would eliminate another. Dr Fong confirmed that, until he saw Dr Quinlivan's notes when giving evidence, he would have said that the appellant was suitable to work as a security guard. Dr Fong agreed, however, that it was entirely appropriate that the appellant should be given the opportunity for a three‑month trial with a view to subsequently obtaining a security licence.
As previously mentioned, the Security Licensing Centre lost the letter from Chubb Security. Dr Fong was not aware of any other reason why the appellant did not pursue that avenue, but considered that it would have been an appropriate way to test his employment capacity. At the same time, Dr Fong also considered that it would be an appropriate course of action for the appellant not to proceed with the work trial and that the part‑time driving would have been a more stable long‑term option to work towards.
So far as the finding that the appellant was in a position to obtain work as a static security guard is concerned, that was an ultimate finding of fact. It was submitted on behalf of the appellant that in arriving at that conclusion, her Honour committed errors of law and fact. The first related to the evidence of panic attacks to which I have referred. In this context, it was submitted that in some respects, the sole question focused upon was the finding by the learned trial Judge that the appellant was suitable for work as a security guard. In that context it was suggested that the decision in Thomas v O'Shea (supra) could be put to one side. It was, however, relevant to the extent that the appellant pursued the argument regarding the necessity for a police clearance. This is significant because it was a major part of the defence case that the appellant failed to discharge his duty to mitigate his loss by undergoing a work trial, which probably would have led to full‑time work from March 2000. It was accepted by the respondent that it had the onus of proof in relation to the duty to mitigate.
There was evidence from Dr Quinlivan that the appellant had a long‑standing history of panic attacks and some anger management problems. In par [96] of her Honour's reasons, the learned trial Judge said:
"The [appellant's] panic attacks and insomnia have been present for a number of years predating the accident as has his neck pain for which he received fairly extensive treatment prior to the accident. The [appellant] also suffered a variety of conditions such as gastric reflux and headaches well prior to the accident and I cannot see any evidence which suggests that the result of the accident has been to worsen these conditions or to contribute to them in any significant way. The [appellant] has been assessed by a number of doctors as essentially having about a 20 to 25 per cent disability of the right shoulder."
Her Honour went on to say in par [97]:
"In viewing the video surveillance tapes and in considering the [appellant's] evidence, I cannot see that his general social life is unduly restricted by pain or any other condition which might be said to be a result of the accident. The [appellant] has undergone three lots of surgery to his right shoulder area with associated injections and physiotherapy. It must be noted of course that each surgical procedure carried out by Mr Janes was a day procedure. In all of the circumstances I consider that an award of $18,000 by way of general damages is appropriate to reflect the above matters."
It was submitted in this Court that, as a matter of common sense, a security guard, static or otherwise, who was prone to panic attacks and, given that his most recent panic attack occurred between June and August of 2000, the appellant was not "an excellent candidate" for the job of a static security guard. Reference was made to the decision in Waddington v Silver Chain Association (1998) 20 WAR 269 albeit that that case involved an interlocutory decision which was taken on appeal to the Full Court. In that case, Malcolm CJ, Kennedy and Owen JJ, after referring to Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 at [27] per Parker J (with whom Kennedy and Wheeler JJ agreed) accepted the proposition that "likely" in the context of s 93D(5)(c) conveyed the notion of a substantial – ie, a real and not a remote chance, regardless of whether it is less or more than 50 per cent.
The case for the appellant below, however, was that he had never been suitable for employment as a static security guard. Consequently, it appears that the case that the appellant was seeking to make was that it was an irrelevant consideration that he might have been physically capable of performing the relevant work, because he was psychologically unsuitable to undertake employment of that kind. This was said to be compounded by a "proneness" to panic attacks. It was contended that, rather than take the panic attacks and insomnia into account in the context of whether those conditions were compensable, there was a question whether the proneness to panic attacks had been made worse by, or had been caused by, the accident.
In this context it was submitted that Dr Quinlivan's historical certification that the appellant was medically fit for a work trial as a static security guard for up to a maximum of 15 hours per week with restrictions was not a certification that he could work full‑time as a static security guard. As has been seen, the evidence of the rehabilitation provider called by the respondent was that a work trial was neither a job, nor a promise of a job. The respondent needed to plead and prove an unreasonable failure to mitigate damage. In this context, despite the failure of the respondent to plead and prove an unreasonable failure to mitigate, her Honour effectively (and wrongly) found that the appellant had failed to mitigate his loss.
In my opinion, the alleged failure or refusal to undergo the work trial as a static security guard at the material time could not amount to an unreasonable failure to mitigate, particularly when the appellant did exercise a choice to work 12 hours per week as a limousine driver. As has been seen, Dr Fong gave evidence that, while in hindsight this choice might be viewed as "unwise", the fact that "he had two options and chose one of them" could not amount to an unreasonable failure to mitigate. Even the rehabilitation provider considered his return to work as a part‑time driver as "appropriate".
As was accepted by her Honour, the evidence from Chubb Training Services through Mr Caffery was that a police clearance certificate was mandatory. There was no evidence that the appellant would succeed in obtaining a police clearance certificate. In my opinion, her Honour was in error to disregard or minimise this mandatory requirement, or speculate how the Police Department would have treated the appellant's past criminal conviction, in the absence of any admissible evidence. In this respect, it was contended that current police practice was not a matter in respect of which judicial notice could be taken. In my opinion, that contention was correct.
The respondent was aware of the absence of police certification and the need for it, in terms of the evidence of Mr Caffery. Additionally, the respondent became aware of the serious nature of the appellant's past criminal convictions, including convictions for being drunk and disorderly, assault and indecent dealing, on the first day of the six‑day trial, but neither attempted to adduce evidence of police licensing requirements, nor sought an adjournment.
So far as the possibility of employment in the security industry was concerned, a reasonable inference from the evidence of Mr Caffery of Chubb Training Services was that in the one‑week course period, although he was not aware of the appellant's total background, but in the light of his performance in the course, Chubb would be looking to employ someone who was a little bit more stable. Furthermore, there was no evidence in relation to the availability of static security guard positions in the labour market generally, nor of employment opportunities within Chubb, in particular. This evidence formed the background to ground A(xi) which contended that the learned trial Judge erred in failing to attach any or any proper weight to the evidence that by reason of his personality and propensity for temper outbursts, the appellant was not an entirely suitable candidate for employment as a static security guard or in occupations which involved frequent contact with members of the public.

In that context, it was contended that the clinical notes of Dr Quinlivan demonstrated a long‑standing tendency on the part of the appellant towards aggression, culminating in numerous violent outbursts over the years. When Dr Fong was made aware of Dr Quinlivan's notes, he expressed concern regarding the appellant's suitability to work as a security guard, in particular, and his work prospects generally.
Her Honour apparently disregarded the well‑documented medical history solely on the ground that there was no evidence of "any formal psychological or personality problems". Her Honour concluded, however, that it would be "unusual" for a person to obtain formal medical intervention for anger management because the usual course is for that maladaptive response to evolve over the course of time. In any event, there was evidence that the appellant was referred to and attended a clinical psychologist for anger management after the accident.
In the result, her Honour concluded at [92] – [93] that:
"92.On occasions in the past the [appellant] has experienced episodes of loss of temper (usually associated with excessive consumption of alcohol). There is, however, no evidence before the Court of any formal psychological or personality problems that would in reality prevent him from undertaking the type of work many of the treating medical practitioners say he can do.
93.On balance I do not consider that the [appellant] would find this type of work more difficult to obtain than others of similar age and background."
In my opinion, in reaching these conclusions, her Honour disregarded the appellant's well‑documented medical history solely on the basis that there was no evidence of "any formal psychological or personality problems", but it would be "unusual" for a person to obtain formal medical intervention for anger management. The usual course was that maladaptive responses evolve over the course of time.
In any event, however, as I have already found, there was evidence that the respondent was referred to and attended a clinical psychologist for anger management after the accident. Had the learned trial Judge articulated her concerns prior to delivery of the reasons for judgment, these matters could have been drawn to her Honour's attention. It was possible that Ms Beardmore could have been called to testify to this well‑documented personality trait. In my opinion, there should have been some formal evidence regarding the psychological problems encountered by the respondent. No such evidence was tendered and there was no formal psychological testing. In this context, however, Dr Quinlivan agreed with the report from Mr Janes of Active, the rehabilitation providers, that, as of March 2000, the appellant was currently fit to undertake duties as a security guard for a proposed duration of three months. The certification provided by Dr Quinlivan was for a 15‑hour week work trial.
It was contended on behalf of the appellant, however, that, leaving aside questions of suitability, the circumstances relied upon by the respondent as a failure to mitigate were neither pleaded nor proved: cfKschammer (supra) at [157] and [165] per Malcolm CJ; Thomas v O'Shea (supra) at 68,701 – 68,702 per Malcolm CJ and Wallace J, citing with approval Adams v Ascot Foundry Pty Ltd (supra) at 120; and Medlin v SGIC (supra) at 21 – 23 per McHugh J.
It is trite law that a defendant bears the onus of proof of any alleged failure to mitigate damage: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 at 240 per Glass JA, with whom Moffitt P agreed. The defendant who contends that the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657 per Barwick CJ. There are numerous authorities to the effect that a defendant who seeks to show that a plaintiff can still do light work or follow a sedentary occupation must adduce evidence that the plaintiff can do such work; that it is available and what can be earned by doing it: Yammine v Kalwy (1979) 2 NSWLR 151; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; Commonwealth v Chessell (1991) 30 FCR 154; Gillan v Brannan (1991) A Tort Rep 81‑136; Thomas v O'Shea (supra); Bowen v Tutte (1990) A Tort Rep 81‑043; George v Erikson (1998) 27 MVR 323 at 333 – 334; State Government Insurance Commission v Toomath (1996) 23 MVR 319.
Notwithstanding this, the learned trial Judge found that the appellant had failed to mitigate his past loss. In this respect, her Honour said at par [6] that the respondent had argued that the appellant had a retained capacity to work in a variety of occupations and had failed to mitigate his loss and damage by seeking employment in those areas. This contention was upheld by the learned Judge at par [104] – [105] where her Honour said:
"104. In the light of all of the evidence I accept the submissions made on behalf of the respondent relevant to this category of damages [past economic loss]. The loss from 18 March 1998 to 18 March 2000 when the [appellant] was fit to undergo a fully funded work trial with Chubb Security, with the very distinct probability of permanent employment thereafter can be calculated as follows;
$33,800 per annum = $650 gross per week or $512 net per week.
$650 gross per week (to include the allowance pursuant to Fox v Wood (1981) 148 CLR 438) x 104 weeks = $67,600.
Thereafter the loss from 18 March 2000 to trial in August 2001 is
72 weeks at $50 net per week = $3,600.
105.Total past economic loss is therefore $71,200. It should be noted that counsel for the [appellant] conceded that the workers' compensation payments to the date of trial had met the [appellant's] past economic loss."
The alleged failure or refusal to undertake the work trial (as a static security guard), at the material time, was the subject of a submission that it could not amount to an unreasonable failure to mitigate, particularly when the appellant did exercise a choice to work 12 hours per week as a limousine driver. As has been seen, Dr Fong's evidence was that, while in hindsight this choice might be viewed as "unwise", the fact that the appellant "had two options and he chose one of them", did not amount to an unreasonable failure to mitigate. In this context, it is important to bear in mind that the respondent did not plead a failure to mitigate.
It was contended by the respondent that the judgment the subject of appeal was one clearly open on the evidence. Significant and relevant credibility findings were made by the trial Judge which were adverse to the credit of the appellant. Thus, her Honour said at par [27] of her reasons:
"The [appellant's] evidence was somewhat inconsistent with a number of answers he gave to interrogatories concerning the detail of the motor vehicle accident on the way to Joondalup Hospital."
Further, in par [51] her Honour said:
"It was my impression that the [appellant] was rather vague and somewhat evasive in his evidence regarding the events of April 2000 or thereabouts with respect to undertaking the work trial …"
In par [78] her Honour said that:
"I do not consider that the [appellant] has been as co‑operative and forthright with his rehabilitation providers as he should have been …"
Her Honour also noted at par [79]:
"There were a number of short video surveillance films … I consider that they clearly indicated that the [appellant] functions at a higher level and with less physical restrictions than he would have had the court believe … I have no hesitation in accepting the thrust of the proposition put forward on behalf of the [respondent] that the [appellant] is not as disabled as he suggested in his evidence or as he portrayed to various medical practitioners by whom he was reviewed over a number of years."
In par [89] of her reasons her Honour said:
"I totally reject the [appellant's] contention that he is too stressed to carry out 40 hours of work of a lighter nature per week."
At par [95], after a change in evidence regarding doing "doughnuts" in his vehicle, her Honour commented that:
"… I do not accept this change of recollection as being reliable or credible."
There was other evidence, particularly from medical practitioners, which clearly enabled the learned trial Judge to form an adverse assessment of the credibility of the appellant.
The learned Judge also commented at par [55] in respect of the evidence of Dr Fitch that the latter:
"… was somewhat perplexed by the changing signs and symptoms exhibited by the [appellant] on various reviews, which included complaints of pins and needles in the arm. He noted that the [appellant's] right shoulder exhibited a good range of movement, although there was some weakness in the biceps. He resisted the [appellant's] request to undergo surgery and took the view that the [appellant] should in fact consult an occupational physician … The type of injury Dr Fitch diagnosed relevant to the [appellant] was in his view often the result of what he described as wear and tear and he certainly did not recommend subacromial decompression by way of surgery. He had some misgivings as to how serious the [appellant] was in his desire to return to work."
In a report dated 10 August 1998 Dr Fitch said that:
"On the six occasions that I examined Mr Morgan, the most significant features were:
*The change in clinical signs
*The Atypical complaints
In particular, on his first visit (27 May) he had very definite clinical evidence of a partial tear of the short head of his right biceps. This is a very rare condition and I was convinced that the Ultrasonograph would confirm this. I was very surprised to learn that I was incorrect and re‑examined Mr Morgan's (R) shoulder (2 June). The clinical signs appeared essentially unchanged. I injected his shoulder because of the Ultrasound report and tenderness over his subacromial bursa. Over the last four weeks the strength of his biceps had returned to normal and tenderness over the coracoid process (the presumed site of rupture) had disappeared.
From then on I became quite perplexed by his complaints. He failed to report immediately after Dr Breidahl injected his OS acromiale as requested. It is my policy to clinically observe the immediate response to the injected local anaesthetic.
On 13 July I became concerned that Mr Morgan's complaints were so bizarre that I considered my role should terminate and referred him back to Dr Quinlivan. I did not request another appointment. I asked him to see Dr Quinlivan on 20 July but he must have misunderstood.
On 20 July my note stated; 'I questioned how serious he is about a return to work'.
As to your question 'could taping or strapping his shoulder be consistent with his symptoms?', I doubt it. However, as indicated above, Mr Morgan's symptoms varied considerably during the period of my observation and eventually became incompatible with any single pathological condition of the region."
As previously indicated, it was submitted that Dr Quinlivan's certification that the appellant was medically fit for a work trial as a static security guard for up to a maximum of 15 hours per week was "hardly certification as he could work full‑time as a static security guard". According to the rehabilitation provider called by the respondent, a work trial is neither a job nor a promise of a job.
In my opinion, the learned Judge was quite justified in finding that the appellant had failed to mitigate his loss. The appellant's choice to work 12 hours per week as a limousine driver was regarded by Dr Fong as "unwise", even though the rehabilitation provider considered his return to work as a part‑time driver as "appropriate". I consider that it was reasonable to expect that the appellant would have attempted to complete the training course for employment as a static security guard. There was no evidence one way or the other whether the appellant would succeed in obtaining a police clearance certificate given his minor record. While police practice was not a matter in respect of which judicial notice could be taken, the issue was one of not taking the opportunity to train as a security guard so that he could seek employment in that capacity.
As has been seen, Dr Fong's evidence was that it would be significantly more difficult for the appellant to retrain and obtain a job, given the reluctance of prospective employers to take on a person who is disabled through major injury. Mr Yeo of Active Injury Management regarded his work as a driver as "appropriate".
In this respect the learned Judge noted that, while the appellant was not able to drive for lengthy periods of time without a break, he could still drive from the city to the Gnangara pine plantation area to watch Motorcross events. He also admitted in cross‑examination that he had on about three occasions since the accident travelled to that area in order to do "doughnuts" in his vehicle on the mud flats. He last did this about one week prior to the commencement of the trial. He found this activity enjoyable. The learned Judge noted that in his re‑examination he claimed that on the last occasion it was his girlfriend who drove the car to Gnangara and did "doughnuts" for some seven to 10 minutes. As to this evidence, the learned Judge said at [95]:
"I do not accept this change of recollection as being reliable or credible."
In my opinion, that finding was fully justified. I have already referred to the incident reported to Mr Yeo on 8 July 1999 when the appellant was referred for psychological counselling or anger management following an incident at a physiotherapy appointment. Although he admitted previously having difficulty controlling his anger, this had improved since hypnotherapy about 12 years ago. The appellant considered that psychological intervention was unnecessary and this appears to have been accepted by Mr Yeo. He decided to undergo counselling.
As accepted by the learned Judge, the appellant could not work as a full‑time driver. It was submitted that as a matter of commonsense a full‑time one‑handed driver would pose a heightened risk to society, even though his car was fitted with a steering wheel knob. Additionally, chauffeurs and taxi drivers would be expected to load and unload baggage, as well as change flat tyres. On this basis the learned Judge did not make a finding or award of damages on the basis of the appellant's suitability for work as a driver. It was contended that, however, the appellant either had an unascertained retained earning capacity or was an "odd lot".
In this context reliance was placed on the decision of this Court in Bowen v Tutte (supra), in which the approach this Court followed in Thomas v O'Shea (supra) in which in the joint judgment of myself and Wallace J, with which Kennedy J agreed, it was held that the legal onus of proof of loss of earning capacity rests on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what employment opportunities were open, including the state of the labour market and the likely earnings. This approach was adopted by the High Court in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657, per Barwick CJ, and followed in a number of subsequent cases. In Bowen v Tutte at 68,086 I also said that:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupation or profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment: see, for example, Ashford v Ashford (1970) 44 ALJR 195; Chelini v Northern Territory Port Authority (1976) 12 ALR 519; and Dessent v The Commonwealth (1977) 13 ALR 437 at p 447 per Mason and Aickin JJ."
Consequently, the basic approach adopted by the learned trial Judge in the present case to take account of the existence of a residual earning capacity by the deduction of a percentage amount from the figure she calculated from the total loss of earning capacity was correct. Whilst the appellate court is in as good a position as the trial Judge to draw inferences from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge, as was held in Warren v Coombes (1979) 142 CLR 531 at 551, per Gibbs CJ, Jacobs and Murphy JJ, the Court must also take account of the advantage of the trial Judge where the decision is affected by the credibility of witnesses whom the trial Judge sees, but the appellate court does not: Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v National Railways Commission (1993) 177 CLR 472; and Fox v Percy (2003) 77 ALJR 989 at [25], per Gleeson CJ, Gummow and Kirby JJ.
As I have said, this was a case in which the trial Judge made a number of significant and adverse findings regarding the credibility of the appellant's evidence.
As stated earlier, the appellant gave evidence that the reason that he had not sought work as a security guard was because Dr Quinlivan had advised him not to undertake that work. That evidence was contradicted by Dr Quinlivan. It was in this context that the learned Judge commented in [89] of the reasons that:
"According to the [appellant's] evidence he had applied for 15 jobs and sent off three resumes but there was not a great deal of detail supplied regarding these efforts. He specifically advised his rehabilitation providers in May 2000 that he had a driving job and did not require any other employment. In the light of all the evidence, including the medical evidence, I totally reject the [appellant's] contention that he is too stressed to carry out 40 hours work of a lighter nature per week."
Further, the appellant failed to tell most of the medical practitioners who examined him of a significant pre‑existing neck complaint arising from a motor vehicle accident in 1991, in respect of which he was receiving regular, three‑monthly, injections of Depo‑Medrol from Dr Quinlivan. His presentation to virtually all of the examining doctors was on the basis of pre‑accident good health and without prior trauma, complaining that the subject accident was the cause of all his problems. This was the position in relation to his consultations with Dr Clarke, an occupational physician referred to in par [56]; Mr Janes, the orthopaedic surgeon referred to in par [62]; and Mr Williams, the orthopaedic surgeon referred to in par [71].
He told Dr Salmon in April 1999 that he fell off his motorcycle 12 years previously and suffered concussion and neck pain for about three months but did not have any significant time off work. He told Dr Fong on 7 February 2000 that he had no previous history of any significant trauma or work‑related injuries. He had been in good health, apart from a history of upper gastrointestinal tract dyspepsia and a vague history of being diagnosed with temporal lobe epilepsy many years ago, but for which he had no recurrence of symptoms since.
He told Dr Wong on 18 March 1998, the day of the accident with the door, that he had hurt the right side of his neck and shoulders in that accident. He also said that he drove to Joondalup to have an x-ray and was involved in the motor vehicle accident I have described. Dr Wong was then uncertain which of the accidents was work related and which injury was from the motor vehicle accident. The appellant also told Dr Wong, in response to a question about any previous injury, that he sustained a previous whiplash injury some 8 years previously and that he was getting treatment from Dr Quinlivan. Dr Wong also provided a second report dated 31 October 2000 which was in substantially the same terms as the earlier report.

On 18 March 1998 Dr Wong suggested that the appellant take simple analgesic for his injury. The appellant told him that Dr Quinlivan had been giving him three‑monthly injections of Depo‑Medrol to his neck. Dr Wong then advised the appellant that it was preferable for him to see Dr Quinlivan "so she could perhaps separate his new from his old symptoms".

Ground A(ix)

Ground A(ix) as amended at the hearing was that:
"The learned trial Judge failed to attach any or any proper weight on the fact that the parameters of employment open and available to the appellant (plaintiff) in the future were significantly restricted by his accident caused injuries with the result that the appellant (plaintiff) would be a less attractive candidate for employment on the open labour market and that the existence of such injuries could prejudice the appellant's (plaintiff's) attempts to find employment in the future, particularly (but not exclusively) having regard to the doctrine of qualem talem."
In my opinion, the weight of the relevant evidence did not support the contention that the appellant's opportunities for employment had been significantly limited. The general effect of the evidence was that the only significant limitation in physical terms was that which excluded repetitive lifting of objects above his head. The appellant's background was that of a long‑term reliable employee as a spray painter.
In this context, Dr Clarke considered that it would be unusual for a spray painter to work until the age of 65. His evidence was that less than 25 per cent of such workers worked to that age. Having reviewed Dr Quinlivan's notes and very detailed material, he concluded that the appellant had a generally good prognosis for recovery. In my opinion, particular (ix) has not been made out.

Ground A(x)

Ground A(x) was that:
"In the alternative to Particulars (ii) and (xi), the learned trial Judge should have assessed the appellant's (plaintiff's) loss of earning capacity to be at least $144.00 net per week to age 65 and then should have awarded an additional sum to compensate the appellant (plaintiff) for the restriction in the parameters of employment, likelihood of periods of unemployment and difficulties in obtaining employment resulting from the injuries."
For the reasons already stated, there was ample evidence to support the finding that the appellant was unlikely to have worked as a spray painter to the age of 65. In my opinion, that finding was clearly open on the bulk of the medical evidence as the learned Judge found. Consequently, the learned Judge was entitled to conclude, as she did in par [87], that the appellant, "all things being equal, would have worked to 60 rather than 65 years of age".

Ground A(xi)

Ground A(xi) was that:
"The learned trial Judge erred in failing to attach any or any proper weight to the evidence that by reason of his personality and propensity for temper outbursts the appellant (plaintiff) was not an entirely suitable candidate for employment as a static security guard or in occupations which involved frequent contact with members of the public."
In my opinion, there is no substance in this particular for the reasons stated by the learned Judge in pars [88] – [93] to which I have already referred.
It follows that ground A has not been made out.

Ground B

Ground B contended that the assessment of $2,698 for future loss of superannuation benefits was so inordinately low as to be wholly erroneous. The particulars relied upon in support of this ground were those in ground A. It follows from the conclusions in respect of that ground that ground B also fails.

Ground C

Ground C contended that the awards of $1000 for future gratuitous services, particularly having regard to the award of $2000 for past gratuitous services, was "a wholly erroneous estimate of such damage". This ground was introduced by way of an amendment made with leave at the outset of the hearing of the appeal. The ground did not descend to particulars.
The learned Judge commented in par [98] that the evidence on this topic was "somewhat vague and lacking in detail". The relevant evidence was as follows:
"99.One of the plaintiff's sisters, Mrs Baikauskas, gave evidence that as the plaintiff was her younger brother she took a sisterly interest in his welfare and when he was indisposed, for example, after surgery she would visit him and do some washing for him and change the household linen. She said that this was not a regular attendance and that in fact it did reduce after the plaintiff had overcome the immediate effects of surgery. At one point she said she perhaps attended the plaintiff's house to visit him and help him out due to sisterly concern by vacuuming, doing a few dishes and chatting to him to cheer him up about 9 or 10 hours per month. My impression was this was a somewhat vague estimate on her part. She said she took it upon herself to do that sort of activity depending on when she had the time available. At best Mrs Baikauskas said that she currently might assist the plaintiff for a couple of hours every three weeks or so, but again it was not particularly definite.
100.The plaintiff said his sister helped him to clean the house, for example, the bathroom once a week, but this did not seem to be Mrs Baikauskas' precise recollection. There was no detail given as to what help the plaintiff's housemate renders other than he assists generally. The plaintiff admitted that he can vacuum albeit slowly and indeed do most things about the house including the dishes. As at November 1999 the plaintiff indicated to Dr Clarke that in fact he was looking after himself and made no particular mention of any need for assistance in the domestic area to any of the medical practitioners that he consulted.
101.I do not believe that the plaintiff's past claim for gratuitous services can be dealt with by way of precise mathematical calculation and at best in my view a global figure of $2,000 would appropriately reflect the limited assistance he has been given in the past.
102.As to future gratuitous services again there is no specific evidence as to the plaintiff's requirements regarding household assistance other than a claim relating to monthly lawnmower hire. I certainly do not accept that the plaintiff would require anything more than one hour a week by way of domestic assistance within the home and even then I do not believe that would be in any way constant or consistent. At the moment it would appear that the plaintiff's sister assists the plaintiff on an extremely intermittent basis when she has time. Overall I believe an award of $1,000 is adequate to cater for the plaintiff's future requirements in this regard."
It was submitted that, in the light of this evidence, the award for future gratuitous services was inadequate and that an allowance for one hour per week at $14 per hour should be made for the rest of the appellant's life. Evidence on this topic was given by the appellant's sister, Ms Baikauskas. Her evidence was as recounted by the learned Judge. It was submitted on behalf of the appellant that the evidence justified an allowance of one hour per week at $14 per hour for the balance of the appellant's life expectancy at the date of trial of 37 years with a deduction of 5 per cent for contingencies. The calculation yielded a figure of $10,530.95.
In my opinion, the findings made by the learned Judge were open on the evidence, which indicated that there was some significant assistance in the immediate aftermath of the accident and some further assistance after surgery, but otherwise no significant need. I am not persuaded that ground C has been made out.
In this context, it was also submitted that an allowance should be included for future special damages which had been allowed by the trial Judge at $2000. This was not disputed. It was submitted for the respondent, however, that no amount could be awarded for gratuitous services because there was a threshold of $5000 under s 93F(6) of the Act and that the sum awarded in the present case was below the threshold. However, the award was not the subject of a cross‑appeal.

Ground D: Past Loss of Earning Capacity

Ground D contended that the assessment by the learned trial Judge of damages for past loss of earning capacity in the sum of $71,200 was so inordinately low as to be a wholly erroneous estimate of such damage. The appellant relied on the particulars and submissions in relation to ground A in support of this ground.
In my opinion, it follows from the conclusion already reached that ground A was not made out and that therefore, ground D also fails.

Ground E: General Damages

Ground E, as amended at the hearing of the appeal, contended that the assessment of $18,000 as being the appropriate award of damages for pain, suffering and loss of amenities was so inordinately low as to be a wholly erroneous estimate of such damage and was wrong in fact and law. In the particulars in support of this ground it was contended, first, that the appellant had suffered a very significant injury to his right shoulder resulting in permanent pain and discomfort requiring no less than three invasive surgical procedures; secondly, that her Honour correctly found that the injury had caused restriction in the appellant's lifestyle and his capacity to participate in and enjoy recreational, domestic and sporting activities; thirdly, he was left with an incapacity for lifting above shoulder height and fourthly, engaging in any repetitive activity with his right arm and unable to drive for lengthy periods of time without a break.
The reasons stated by the learned Judge for the award of general damages were as follows:
"94.The plaintiff has clearly suffered some pain and ongoing discomfort as a result of the injury to his right shoulder. He has also suffered some restrictions in lifestyle in that his ability to participate in certain recreational activities has been diminished or come to an end. In addition his ability to carry out a very limited range of some domestic activities has been restricted to a degree. He is not able to play volleyball nor is he able to play golf which he used to participate in approximately four times a year according to his evidence. He no longer plays indoor cricket which he used to play once a week. Nor does he lift weights in the gym or attend motor cross events which he used to do every couple of weeks. Although the plaintiff used to engage in boxing, his evidence was that he ceased this activity in 1995 or 1996 which was well prior to the accident. Whilst he can undertake most domestic chores hanging washing on the line is somewhat problematic and he has certainly been advised to avoid lifting above shoulder height or engaging in any repetitive activity with the right arm.
95.Whilst he is not able to drive for lengthy periods of time without a break, he can still drive to the Gnangara pine plantation area in order to watch motor cross events and he admitted in cross-examination that he had on about three occasions since the accident travelled to that area in order to do 'doughnuts' in his vehicle on the mud flats. He last did this about one week prior to trial. This is an activity which the plaintiff indicated that he found was enjoyable. Later in re-examination he claimed that in fact on the last occasion it was his girlfriend who drove the car to Gnangara and did 'donuts' for 7 – 10 minutes only. I do not accept this change of recollection as being reliable or credible.
96.The plaintiff's panic attacks and insomnia have been present for a number of years predating the accident as has his neck pain for which he received fairly extensive treatment prior to the accident. The plaintiff also suffered a variety of conditions such as gastric reflux and headaches well prior to the accident and I cannot see any evidence which suggests that the result of the accident has been to worsen these conditions or to contribute to them in any significant way. The plaintiff has been assessed by a number of doctors as essentially having about a 20 to 25 per cent disability of the right shoulder.
97.In viewing the video surveillance tapes and in considering the plaintiff's evidence, I cannot see that his general social life is unduly restricted by pain or any other condition which might be said to be a result of the accident. The plaintiff has undergone three lots of surgery to his right shoulder area with associated injections and physiotherapy. It must be noted of course that each surgical procedure carried out by Mr Janes was a day procedure. In all of the circumstances I consider that an award of $18,000 by way of general damages is appropriate to reflect the above matters."
In support of this ground, it was contended that the particulars of this ground were "self-evident". I did not find that submission helpful. There was a reference to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 which was presumably cited in support of the contention that the award of $18,000 under this head of damage equated with a temporary, mild to moderate soft‑tissue injury as distinct from a whole body impairment of 15 – 20 per cent in a right‑arm dominant man who had undergone three operative procedures on the relevant limb.
It was submitted on behalf of the appellant that an award of $40,000 to $50,000 would have been within the range of a sound discretionary judgment. As against that, the respondent contended that the award for general damages was appropriate given the modest nature of the appellant's injuries. In this context, it is necessary to bear in mind the fact, as found by the learned trial Judge, that the appellant sought to exaggerate his symptoms and asserted a degree of disablement rejected by the learned trial Judge. In my opinion, it has not been demonstrated that the award of $18,000 was inadequate in the light of the facts as found or that the relevant findings should be disturbed.
For these reasons, ground E fails.

Ground F: The Prescribed Amount

Ground F (which was originally ground E) was that the ruling of the learned trial Judge that the prescribed amount for the purposes of the relevant case was $130,000 at the date of trial was wrong in law. The trial in this case commenced on 3 August 2002 and judgment was delivered promptly on 7 August 2002.
On 5 October 1999, the Workers' Compensation and Rehabilitation Act 1981 (WA) was amended by the Workers' Compensation and

Rehabilitation Act Amendment Act 1999 (WA) which came into force on that day. Section 32(5) provided that ss 93D, 93E and 93F of the Workers' Compensation and Rehabilitation Act 1981 (WA) were repealed and ss 93D, 93E, 93F and 93G were substituted. In particular, s 32(7) provided that the amended provisions did not affect the award of damages in proceedings commenced before the "assent day" (ie, 5 October 1999) or for the commencement of which the District Court had given leave under the former provisions before the assent day, and that the former provisions would continue to apply to such proceedings.

As at 5 October 1999, the prescribed amount under the former provisions for the purposes of this case was $109,650, as was correctly conceded at the hearing of the appeal.
In the result, the total award of damages in respect of future pecuniary loss did not exceed the threshold sum of $109,650. It follows that the action was rightly dismissed and that for that reason the appeal should be dismissed.
MURRAY J: I have had the benefit of reading in draft the judgment of Malcolm CJ. There is nothing I wish to add to the discussion of the grounds of appeal by his Honour.
For my part I have carefully reviewed the evidence and the findings of fact by the trial Judge. The complaints made by the grounds of appeal essentially challenge the conclusions of fact of the trial Judge upon which her Honour's assessment of damages depended. It seems to me that her Honour dealt carefully with the evidence and made what I would describe, with respect, as sensible decisions of fact which were well open to her.
Putting to one side ground F which, in effect, complains that all at trial misunderstood what was the prescribed threshold amount for the award of damages under s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA), as it then was, the complaint of the manifest inadequacy of the award of damages centres upon the award in respect of past loss of earning capacity, future loss of earning capacity (most importantly), future loss of superannuation benefits and the award for future gratuitous services.
As to the crucial issue of the award in respect of future loss of earning capacity, it seems to me that this was not a case concerned with the appellant's failure to mitigate his loss, but essentially it was a case where the evidence established a considerable retained earning capacity

preventing the Court from making an assessment which would achieve or exceed the prescribed amount so as to enable an award of damages to be made.

I too would dismiss the appeal.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Chief Justice and of Murray J. I am in agreement with their Honours' conclusion that the appeal should be dismissed. I am in agreement with their Honours' reasons, and do not wish to add anything further, except in respect of ground A, particulars (ii), (vi), (viii) and (ix). In relation to those matters I wish to express my own reasons for dismissing the appeal.
The Chief Justice has set out the background to this appeal; I adopt and do not repeat what his Honour has said.
Ground A(viii) can be dealt with quite briefly. The complaint is that her Honour found that there was no precise evidence as to what penalty rates for shift allowances would apply to employment as a static security guard, but erred in "failing to attach any or any proper weight" to such finding. It is not suggested by the written submissions, and was not suggested to us in oral argument, in what different way her Honour should have dealt with this issue. Since her Honour had no precise evidence as to penalty rates or shift allowances, she was necessarily called upon to make some reasonable estimate based upon the evidence which was before her. She found that the earnings from employment as a static security guard would be no less than $462 per week net. The evidence which was before her was that most static security officers employed by Chubb (the major employer, a representative of whom gave evidence) earned a minimum of $439.60 gross, the net figure being approximately $368 per week. However, the evidence was that that minimum wage was "often" supplemented by penalties, which could range from a 15 per cent penalty for afternoon shifts up to a 150 per cent penalty for public holidays. In addition, there was a "torch allowance" of 46 cents per shift, and there were site allowances specific to individual areas.
Further, the evidence was that scope for promotion was considerable in the security industry, depending upon ability and commitment. At least some of the training and qualifications which would lead to promotion included matters such as computer literacy, so that it appears that even a person with some physical restrictions might well be able to take advantage of further training and the potential for promotion it involved. Given the different levels of penalty rates and other allowances available,

and the scope for promotion, it appears to me that the appellant has not succeeded in establishing that her Honour's estimate of the likely earnings available to the appellant from such an occupation was in error.

The remaining particulars are all concerned with the appellant's personality and his psychological condition. It is suggested that his pre‑accident propensity for panic attacks and for outbursts of temper meant that he was an unsuitable candidate for employment as a static security guard, or for employment in any area which involved frequent contact with members of the public.

However, her Honour made a number of findings relevant to the appellant's suitability for employment, particularly in the security industry. Her Honour noted that the evidence of the witness who was experienced in the industry was that both static security guards, and security guards in general, were trained and instructed to observe, record and report only. That is, their training would emphasise that the individual did not have a responsibility to tackle or arrest any possible offender. In the training the "emphasis is on being non-aggressive and non‑confrontational", as the witness put it.
Her Honour did not accept that by reason of temperament and lack of impulse control the appellant was unsuited to carrying out an occupation that placed him in the position of dealing with members of the general public. It was her Honour's impression that he did not present in that way during the course of giving his evidence. She made the commonsense observation that his steady and consistent employment in the past tended to indicate he had no significant problems in interacting with people. In addition, he had played team sports and had apparently had no difficulty with the public relations features of a recent driving job. A witness with whom the appellant used to work gave evidence of certain positive social interactions.
Against that, her Honour noted that in the past on occasions the appellant had experienced episodes of loss of temper, usually associated with excessive consumption of alcohol. Her Honour accepted that the appellant had a long‑standing history of panic attacks and some anger management problems which appeared to be exacerbated by alcohol use. She observed, however, that there was also no evidence before the Court of any formal psychological or personality problems.
It is desirable to consider briefly the evidence underlying the limited findings which her Honour made about the appellant's alleged difficulties with anger management and self‑control. Dr Fong said, based largely upon the notes of the appellant's general practitioner, Dr Quinlivan, that he had a history of "intermittent alcohol excess and behaviour volatility"; it is to be noted that the behaviour volatility does appear, as her Honour observed, to be linked with alcohol excess. There was no evidence, so far as I can tell, to suggest that alcohol consumption during the course of employment had been a difficulty. One would not therefore expect that "volatility" to manifest itself during working hours. So far as the appellant's more recent history was concerned, the rehabilitation provider noted in a report dated 12 July 1999 that the appellant had had an "outburst" during a physiotherapy appointment and had as a result been referred for psychological counselling for anger management. The appellant had advised the provider that he had previously had difficulty controlling his anger but that since hypnotherapy "about 12 years ago" this had improved. The appellant considered that psychological intervention was unnecessary, but apparently agreed to attend a psychologist in any event. There was no report of any psychologist placed before her Honour.
It is fair to summarise the evidence relating to impulse control or volatility problems on the part of the appellant as very limited. There was no suggestion of any problem which recurred with any degree of frequency, or which had caused any difficulty with employment in the past. Against that background, and having regard to the factors which her Honour considered indicated that the appellant would not have difficulty by reason of his temperament, it is my view that her Honour was correct in considering that, on balance, he was unlikely to find work as a static security guard any more difficult to obtain than "others of similar age and background".
In relation to the "panic attacks", all that is suggested on behalf of the appellant is that as a matter of commonsense, persons prone to panic attacks are not suitable to work as security guards. There seems to have been no evidence from any person with either appropriate medical qualifications or any expertise in the security industry, which could support that observation. Given the limited role of a static security guard as discussed above, one could not, I think, conclude that any person who had ever suffered from a panic attack would be unsuitable for that employment. Much would depend upon the nature of the attacks and the circumstances in which they had been demonstrated to arise.
The evidence as to the appellant's panic attacks was patchy and inconclusive. Dr Quinlivan, a witness whom her Honour considered to be sympathetic to the appellant, discussed the panic attacks in the context of the appellant getting angry, having trouble breathing, and having chest pains. The chest pains appear to have been associated in part with smoking, and in part with his occupation of spray painting; both the panic attacks and the anger appear to have been the subject of Dr Quinlivan's observation that "a lot of it was precipitated by alcohol consumption". Although Dr Quinlivan referred to "panic" a number of times during the course of her evidence, she also, at one point, referred to "so‑called panic attacks", and a reading of her evidence as a whole suggests that the reference to panic arose particularly in the context of difficulties in breathing, with panic attacks being but one of a number of possible explanations for those difficulties (the others being a variety of physical causes). In the light of the lack of any evidence which could lead to the conclusion that the appellant was suffering from "panic attacks" properly so called and in the absence of evidence suggesting the circumstances in which those "attacks" were experienced, her Honour could not, in my view, be expected to do other than subsume that evidence, as she did, under the general heading of the appellant's "temperament". Having done so she found, for the reasons which she explained, that his temperament did not appear to be a barrier to employment. That finding appears to me to have been soundly based.
There was also an issue raised during the course of the written submissions, and emphasised in the oral submissions of counsel for the appellant, which does not directly emerge from the grounds of appeal. That was the question of whether her Honour erred in effectively disregarding the requirement for police licensing of security guards, with which requirement it was alleged that the appellant would be unable to comply. The evidence was that police licensing of security officers was mandatory. The evidence from the appellant was that he had been convicted in the past of what he described as "drunk and disorderly, assault and indecent dealing". Those convictions had occurred "about probably" 18 years ago, to his recollection. The appellant did not make any enquiries about whether he would be able to obtain a police clearance; he did not apply for a police clearance; and he did not apply for a licence as a security officer.
The appellant submits that it was for the respondent to adduce evidence of relevant licensing requirements in order to demonstrate that work as a security guard would be available to the appellant. The difficulty with this proposition is that it was not until the first day of the trial that the respondent became aware of the nature of the appellant's convictions, and even then they were referred to only in general terms. It is not apparent to me that the respondent was aware, until the appellant gave evidence, that the appellant had convictions that might have been relevant. In those circumstances, it seems to me that the onus lay upon the appellant to adduce evidence as to the precise nature of his convictions and as to the likely effect of those convictions on his ability to obtain a clearance. Without such evidence, her Honour was driven to look only at the nature of the convictions and the time at which they were recorded (many years ago when the appellant was, at the latest, in his early twenties) and to form a tentative view that they might well not preclude him from obtaining a relevant police clearance.
In any event, the principal reason given by the appellant for not undertaking any work trial as a static security guard was not based upon the licensing requirement; rather, it was that Dr Quinlivan had advised him that that work was physically unsuitable for his condition. His first response during the course of cross‑examination about his retraining as a security guard was, "… my doctor wouldn't allow it". He did not make enquiries, he said, about whether he would be able to obtain a police clearance because his doctor had said "I don't want you doing it". Reading the evidence, the references to the criminal convictions have something of the flavour of afterthought. Dr Quinlivan was very clear in her evidence that she did not ever advise the appellant that he could not undertake work as a static security guard. Indeed, she was surprised that the rehabilitation providers did not pursue that issue with him. She approved the work trial proposed as a static security guard.
As to all of the grounds of appeal which deal with the appellant's "suitability", by reason of personality and criminal record, for work as a static security guard, a reading of her Honour's reasons and of the evidence given at trial as a whole leads me to the view that the major basis upon which the case was fought was that the appellant lacked the physical capacity to perform that work. He went so far as to say that the medical advice he had received was that he definitely should not undertake it. References to his anger management problems, panic attacks, and criminal record were peripheral to that central issue. That was an issue upon which the appellant was contradicted by Dr Quinlivan and in respect of which her Honour considered that the medical evidence generally did not support the appellant. It is also clear from her Honour's reasons that she considered that the appellant was not to be relied upon in relation to his physical capacity for work. She considered him "rather vague and somewhat evasive" in his evidence relating to undertaking a work trial; she considered that he had not been "as co‑operative and forthright with his rehabilitation provider as he should have been"; and she formed the view that a number of short video surveillance films demonstrated that the appellant functioned with fewer physical restrictions than he would have had the Court believe.
Her Honour formed the view, soundly based upon the medical evidence, upon the video surveillance films and upon her own observations of the appellant's demeanour, that he did have the physical capacity for work as a static security guard. The other matters which the appellant now seeks to raise as being of importance in relation to the appellant's ability to undertake that work, were treated as issues of much less importance during the course of the trial, and in my view, her Honour considered those matters appropriately. I would therefore dismiss the appeal.