Paul Andrew Barton v Samarkos Earthmoving Pty Limited

[2004] ACTCA 6

PAUL ANDREW BARTON v SAMARKOS EARTHMOVING PTY LIMITED
and T & S SIMEONOV PTY LIMITED
[2004] ACTCA 6 (19 April 2004)

DAMAGES – Personal Injuries – Appeal against assessment of heads of damages – whether general damages award inadequate – whether future economic loss or future domestic assistance awards inadequate – whether calculation of “buffer” for past economic loss reasonable on evidence – construction site worker injured shoulder in fall.

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

No. ACTCA 28 - 2003
No. SC 436 of 2000
Judges:         Higgins CJ, Gray and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date:            2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 28 - 2003
  )          No. SC 436 of 2000
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PAUL ANDREW BARTON

Appellant

AND:SAMARKOS EARTHMOVING PTY LIMITED ACN 003 988 694

First Respondent

AND:T & S SIMEONOV PTY LIMITED ACN 003 781 600

Second Respondent

ORDER

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  19 April 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The judgment be varied so as to increase the sum awarded by $30,000 to $266,926.76.

IN THE SUPREME COURT OF THE       )          No. ACTCA 28 – 2003
  )          No. SC 436 of 2000
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PAUL ANDREW BARTON

Appellant

AND:SAMARKOS EARTHMOVING PTY LIMITED ACN 003 988 694

First Respondent

AND:T & S SIMEONOV PTY LIMITED ACN 003 781 600

Second Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  19 April 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal by the appellant against a decision by Connolly J to award the appellant $236,926.76 with costs for damages for personal injury suffered by him in a fall at work on 18 November 1998.  The facts and the history of the proceedings are set out by Connolly J in his reasons for decision of 6 August 2003.  It is not necessary to repeat them in full.

1. The appellant complains that the damages awarded were less than adequate in a number of aspects.  The heads of damage so complained of are:

(a)general damages

(b)past economic loss

(c)future economic loss

(d)domestic assistance

THE FACTS

1. By the time the matter came to trial there was little dispute as to the facts of the occurrence that gave rise to the claim.

1. The appellant, a manual worker (date of birth 8 May 1964) with no educational qualifications or capacity, was injured at work on 18 November 1998.  He fell about 6 metres to the ground from a ladder whilst descending into a pit at a construction site in Manuka in the Australian Capital Territory.  He injured his right shoulder.  The finding of liability against the respondent is not now challenged.

1. The appellant’s employment history indicated an aptitude for manual labour only.  He did have a qualification as a plant operator and, when injured, was a foreman plant operator earning net $538 per week.

1. He had sustained prior injuries.  In 1984 a motor vehicle accident caused soft tissue cervical damage from which the plaintiff appeared to have fully recovered.  Later in 1984 there was another motor vehicle accident, this time causing a fracture to a cervical vertebra.  However, the plaintiff seemed again fully to recover, even to the extent of working as a shearer and resuming the playing of rugby league and cricket.

1. Two further accidents, this time at work, occurred in 1989.  The first injured the plaintiff’s left knee.  As a consequence he was off work for four months, but then returned to full time work.  He then suffered a fractured pelvis and lower back injury.  This kept him off work for around 12 months but he then returned to full duties.  He did have residual problems with his back but continued on nevertheless.

1. Following the fall at Manuka there was an operation performed to fix a detachment of the fibrous rim of the socket in his right shoulder joint (a SLAP lesion).  The appellant, despite ongoing difficulties with the right shoulder, returned to work in November 1999 and continued until his employment was terminated, for purely economic reasons, in February 2000.  He has not worked since.

1. It appears that the shoulder operation was not successful.  A second operation is recommended but, due to the fact that the respondent’s insurer would not fund it, it was, at least as at time of the hearing, still to occur.  The appellant’s medical practitioners were confident that it would be of benefit but no full recovery was anticipated.  Indeed, the balance of opinion was that the appellant would be permanently debarred from undertaking heavy physical labour.  He would have been restricted in his bending and lifting capabilities to light duties in any event as a result of his previous injuries.

THE JUDGMENT

1. His Honour accepted that, as a result of the subject accident, the plaintiff had suffered a frank injury and pain and disability arising therefrom in the right shoulder.  He accepted that there was an ongoing 22% permanent loss of the efficient use of the right arm as a result, albeit that this disability was likely to be improved by a further operation.

1. He assessed general damages at $65,000, attributing $50,000 to the past.

1. The attack on that award relied on the proposition that, given the need for further operative treatment and the chance of failure of the further operation, an award of $15,000 for the future was inadequate.  There is some force in that proposition.  However, the apportionment between past and future is necessary to enable interest to be awarded for damages attributable to the past.  The real question is whether the overall award is inadequate.

1. In all the circumstances we think that $65,000 is well within the range of general damages appropriate for the injury and disabilities attributable to the accident sued upon.

1. If anything, it might be said that the award overvalues the past component so that the interest awarded is too high.  However, there was no call to interfere with that aspect of damages.  Accordingly, we make no alteration to that aspect of the award.

PAST ECONOMIC LOSS

1. The question in relation to this head of loss was complicated because, although clearly struggling, the appellant had continued, after his recovery from the initial operation, with his pre-accident duties as a foreman plant operator.  How long he would have been able to continue but for the termination, for economic reasons, of his then employment was seriously in doubt.

1. As his Honour noted, Dr White had, in a report made well before the fall in question, expressed the view that, due to his previous back injury, the appellant should not engage in “heavy work”.  His prognosis for continuation of such work was not good.

1. Further, for reasons not connected with the accident, the plaintiff’s driver’s licence was cancelled.  There was no evidence that this would have precluded the plaintiff from operating a plant on building sites or from undertaking supervisory work.  However, it would have created some difficulties for him in getting to and from such sites.

1. That such capacity remained even after the shoulder injury was not open to dispute.  The plaintiff opted to act as a carer for his mother and received an allowance as a result.  That does not, of course, warrant any inference that the plaintiff was in any way “playing down” his residual capacity, nor did his Honour so conclude.

1. His Honour awarded $60,000 “as a buffer” for past economic loss, inclusive of superannuation.

1. The description of that award as a “buffer” is perhaps inappropriate.  A “buffer” is an award for contingent loss in the future which may or may not occur.  It is a loss of a chance, such as was referred to in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

1. It is true, as the appellant’s counsel submitted, that the award of $60,000 is not explained.  There is clearly a call for the exercise of considerable discretion in the circumstances.  However, the award is for loss of earning capacity, whether or not it is exercised to its fullest extent.

1. Even granted, however, that for six months the plaintiff was prevented by the shoulder injury from earning at all, he clearly thereafter had a residual capacity for light duties.  Even a total loss would have amounted to no more than $130,000 before allowance for actual earnings and the reduced capacity for work with which the appellant was left.

1. On that basis the award of $60,000 for past economic loss does not seem unreasonable.

1. We would not interfere with that award.

FUTURE ECONOMIC LOSS

1. It was accepted by his Honour that –

The plaintiff will have a period of total incapacity following the likely shoulder surgery, but that he will then probably have a capacity for most plant operation duties, save that he should avoid heavy lifting, a restriction that has previously been diagnosed as a long-term restriction due to a prior back injury.

1. It was, however, true that the operation may not have succeeded.  The impact of that chance on the plaintiff’s future earning capacity was to be taken into account and, given the addition of the likely residual shoulder disability to the plaintiff’s existing disabilities, there was clearly a need to award a “buffer” for the future loss of earning capacity.  However, the consequence of the shoulder operation was a known adverse event.  It was likely to lead to a total incapacity for up to six months.

1. Allowing for that factor it does seem to us that the allowance of $50,000 for the future was inadequate. 

1. It should be increased to $75,000.

FUTURE DOMESTIC ASSISTANCE

1. His Honour awarded $10,000 in respect of the past need for domestic assistance.  The primary justification for that was the immediate aftermath of the fall and, particularly, the shoulder surgery during which the appellant was totally incapacitated.

1. It was not disputed that the appellant will need a repeat of the shoulder surgery.  Thus, for some part of the period following that surgery, the appellant will, once more, require domestic assistance.

1. We accept that his Honour would seem to have overlooked this consideration and would award $5,000 on account of future domestic assistance.

1. We were asked to reserve the costs of the appeal and refrain from making a final order as to costs pending further submissions which may be made in writing if desired.

1. It is ordered that the appeal be allowed and the judgment sum be increased by $30,000 to $266,926.76.

   I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:
   Date:     19 April 2004

Counsel for the Appellant:  Mr S Pilkinton

Solicitor for the Appellant:  Stacks with Snedden Hall and Gallop

Counsel for the Respondent:  Mr G P McNally

Solicitor for the First Respondent:  Hunt and Hunt Lawyers

Solicitor for the Second Respondent:                Phillips Fox

Date of hearing:  10 February 2004

Date of judgment:  19 April 2004