Moxham v Commonwealth of Australia

[1992] QCA 317

IN THE COURT OF APPEAL

[1992] QCA 317

SUPREME COURT OF QUEENSLAND

Appeal No. 65 of 1992

BETWEEN:

VIVIAN MORTON MOXHAM

(Plaintiff) Respondent

AND:

THE COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

JUDGMENT - THE COURT

Delivered the Fifth day of October 1992

This is an appeal against an assessment of damages in a master and servant case. The appellant, the Commonwealth of Australia, was the employer of the respondent when he was injured in the course of his employment on 24 October 1986.

As a result, a pre-existing spinal deterioration was made much worse; to use the language of the judge's finding, the injury received by the plaintiff in 1986 "aggravated substantially an existing degenerative disc condition".

The appeal is based on two complaints about the judge's assessment of damages for future economic loss, namely $50,000. The matter is in short compass, but it is desirable to give some detail as to the findings relevant to the appellant's attack on the judgment.

The respondent, born in October 1935, was 56 years of age at trial. He worked for the Commonwealth Department of Housing and Construction from 1968 until 1988, but had during that period injured his back at work, long before the 1986 injury. To Dr. Watson, a specialist in rehabilitation medicine, the respondent admitted to having had "chronic low grade intermittent low back pain for many years", but he said this had not caused any loss of time from work. Dr. Lewis, an orthopaedic surgeon, said that the plaintiff's degenerative disc disease had been caused by or aggravated by the 1986 accident and Dr. Gavin Douglas, an orthopaedic surgeon, gave evidence to much the same effect. The judge's finding that the 1986 injury substantially aggravated the respondent's condition is not challenged and indeed appears not to be challengeable.

A question arose at the trial as to the date to which, had the respondent not suffered the 1986 injury, he could have continued with the job he then had, which involved some heavy work. For reasons of convenience, the judge made a preliminary finding about that. His Honour held that it was probable that the respondent would have had to cease the work on which he was employed before he was aged 60 and that he could have continued on lighter duties from that time, but such duties would not have been available to him in the appellant's employment. In his final reasons, the judge expressed himself similarly. His Honour assessed damages on the basis that, but for the 1986 accident, the respondent would probably have done some light labouring jobs after he retired from his work with the appellant. It is desirable to quote precisely the findings which the judge made, relevant to this point.

"I am satisfied that the plaintiff would have been able to engage in a number of occupations and would have done so after he was unable to continue in his employment with the Commonwealth, though he would have been disabled from doing heavy labouring work. I consider it probable that he would have continued in his work with the Commonwealth until age 57 or 58, and then would have done light labouring jobs until about age 63. I allow him a sum calculated on the basis of $100 per week from age 57 or 58 to age 63. I assess his future loss over the period from trial until age 57 or 58 on the basis of the income he would have received as a Commonwealth employee. On that basis, and discounting for the usual contingencies, I assess future economic loss at $50,000".

The appellant took two points. The first was that there was no medical evidence to justify the judge's finding that the respondent would have continued to work with the appellant until age 57 or 58. The argument was that none of the doctors said this and that therefore his Honour was not entitled so to find.

It is true that there is not to be found in the medical evidence any statement that a doctor was of opinion that the respondent would, but for the 1986 accident, have worked to age 57 or 58 in the job he had at the time of that accident.

The doctors' views on this point were somewhat at variance, one from another. Dr. Lewis appeared to say in his written reports that the respondent would, but for the accident, have continued to work until 65. But in cross-examination, as Mr. Pope for the appellant pointed out, his opinion was to the effect that it would have been necessary for the respondent to take up lighter duties as he grew older. Dr. Douglas said that in his experience a person with a degenerative condition in the lumbar spine becomes incapable of heavy work about the age of 55. In cross-examination, the doctor made it clear that one has to consider the individual's history and that it was possible, but he thought not probable, that the respondent could have continued up to age 65.

It is not, in our opinion, the law that in a contest of this kind the trial judge is obliged to accept the view of one doctor as representing the exact truth and reject the rest. Here, his Honour had a body of evidence bearing upon the point and capable of supporting a number of conclusions.

What his Honour found was, as Mr. Pope argued, not precisely in accordance with the view of any of the doctors called, but it appears to us to be a conclusion which was well open to the judge. The respondent had an excellent working history and had carried on well enough, despite some degree of disability, for quite some years before the 1986 accident. It was the judge's task to consider all of the evidence bearing on the point and reach that conclusion which he thought to be the most probable. His Honour did that and we can see no basis on which his Honour's finding could be upset.

The second point taken related to the respondent's capacity to earn income on light duties. In the passage we have quoted from his Honour's reasons, an allowance is made of $100 per week from the age of about 57 or 58 to age 63, being a postulated period of light duties. The judge decided the case on the basis that, within a year or two of the date of trial, but for the 1986 accident, the respondent would eventually have obtained some kind of lighter work; a substantial list of possible jobs was put forward on the respondent's side. What Mr. Pope contended was that, in the absence of evidence that at the relevant time one or more of those jobs would have been available, the respondent could recover nothing under this head.

In our opinion, the argument cannot succeed. The respondent had a good employment history; he had in the past been able to get and keep employment. In some circumstances, no doubt it would be unreasonable for a judge to include in an assessment of damages an allowance for loss of the chance to take a particular type of job, unless specific evidence had been led that such a job could probably have been obtained at the relevant time. Here, the respondent's case was that over a period of relatively few years, on a date some time in the future, he would probably have been able to obtain some kind of light work. It was his Honour's view that that was so, although the allowance made shows that the judge heavily discounted the respondent's possible earnings: he allowed much less than would have been obtained from working full-time in light work. His Honour did not in our view pass beyond the bounds of permissible judicial notice of economic conditions and other factors bearing upon the respondent's prospects of getting light work.

In our opinion, his Honour's view was well open to him, on the evidence; the second point also fails.

In our opinion, the appeal should be dismissed with

costs.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 65 of 1992

Before the Court of Appeal
The President
Mr. Justice McPherson

Mr. Justice Pincus

BETWEEN:

VIVIAN MORTON MOXHAM

(Plaintiff) Respondent

AND:

THE COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

JUDGMENT - THE COURT

Delivered the Fifth day of October 1992

MINUTE OF ORDER:  The appeal is dismissed with costs.

CATCHWORDS: for injury which worsened pre-existing spinal deterioration - damages for future economic loss based on continuation of employment till age 57/58 - whether spinal problem would have dictated earlier retirement - whether finding based on evidence.

DAMAGES - MEASURE OF - APPEAL - Respondent awarded damages for back injury at work - whether pre-existing spinal deterioration would have required respondent to cease full employment earlier than considered in award - whether finding that full employment would continue to age 57/58 supported by evidence.

DAMAGES - MEASURE OF - Respondent suffered back injury at work which worsened pre-existing condition - whether trial judge's assumption that full employment of respondent would have continued to age 57 supported by medical evidence - whether judge obliged to accept view of one doctor rather than others.

DAMAGES - QUANTUM - Respondent suffered back injury at work which worsened pre-existing condition - whether trial judge's assumption that full employment of respondent would have continued to age 57 supported by medical evidence - whether judge obliged to accept view of one doctor rather than others.

EVIDENCE - OPINION EVIDENCE - EXPERT - Trial judge awarded damages to respondent on basis that, but for injury, full employment would have continued to age 57 - whether judge entitled to so find even though no medical witness expressed that view - whether judge obliged to accept medical evidence.

Counsel:	M.E. Pope for the Appellant C.A. White for the Respondent
Solicitors:	Australian Government Solicitor for the Appellant Nehmer Davenport Dean McKee for the Respondent
Hearing Date(s):	5 October 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 65 of 1992

BETWEEN:

VIVIAN MORTON MOXHAM

(Plaintiff) Respondent

AND:

THE COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

_______________________________________________

The President
Mr. Justice McPherson

Mr. Justice Pincus

_______________________________________________

Judgment of the Court delivered on 5th

October, 1992.

_______________________________________________

APPEAL DISMISSED WITH COSTS.

_______________________________________________