Richardson v Whymark Nominees Pty Ltd
[2004] WASCA 208
•16 SEPTEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RICHARDSON -v- WHYMARK NOMINEES PTY LTD [2004] WASCA 208
CORAM: MALCOLM CJ
STEYTLER J
JENKINS J
HEARD: 4 MARCH 2004
DELIVERED : 16 SEPTEMBER 2004
FILE NO/S: FUL 182 of 2002
BETWEEN: JASON JOHN RICHARDSON
Appellant
AND
WHYMARK NOMINEES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File Number : CIV 630 of 1999
Catchwords:
Torts - Negligence - Damages - Special damages - Liability not in issue - Appellant unable to resume work as sandblaster or undertake any employment involving heavy lifting - Appellant disadvantaged by limited intellectual capacity and verbal skills - Whether able to work as a service station console operator or storeperson - Finding that appellant's post-accident earning capacity was between the wages of those two occupations - Assessment of loss of earning capacity past and future - Whether damages awarded inadequate - Whether damages were at least equal to the prescribed amount as at the date of judgment
Legislation:
Occupational Safety and Health Act 1984 (WA), s 19
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93A, s 93D
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr I L K Marshall
Respondent: Mr M H Zilko SC
Solicitors:
Appellant: S C Nigam & Co
Respondent: Jackson McDonald
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Baird v Roberts [1977] 2 NSWLR 389
Bowen v Tutte (1990) Aust Torts Rep 81‑043
Eltin Ltd v Dowsett [2001] WASCA 101
Fox v Wood (1981) 148 CLR 438
Freudhofer v Poledano [1972] VR 287
Harvey v Electrolytic Zinc Co of Australasia Ltd [1980] Tas R 167
Johnson v Perez (1988) 166 CLR 351
Jongen v CSR Ltd (1992) Aust Torts Rep 81‑192
Love v Clarona Pty Ltd, unreported; FCt SCt of WA; Library No 970012; 24 January 1997
Medlin v State Government Insurance Commission (1995) 182 CLR 1
O'Brien v McKean (1968) 118 CLR 540
Thomas v O'Shea (1989) Aust Torts Rep 80‑251
Case(s) also cited:
Abbott v Pacific Industrial Co (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 970079; 4 March 1997
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fane v Smart [2002] WASCA 62
Gamser v Nominal Defendant (1977) 136 CLR 145
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Linsell v Robson [1976] 1 NSWLR 249
Pettitt v Dunkley [1971] 1 NSWLR 376
Selvanayagam v University of the West Indies [1983] 1 All ER 824
Sharman v Evans (1977) 138 CLR 563
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Warren v Coombes (1979) 142 CLR 531
Wilks v Bradford Kendall Ltd [1962] NSWR 1303
MALCOLM CJ: This is an appeal from a judgment of Groves DCJ dated 3 December 2002 in the District Court by which his Honour awarded the appellant damages in the sum of $152,962.14 in respect of personal injuries which he suffered on the weekend of 18 and 19 May 1996. The injuries were suffered in the course of his employment when he was required to sandblast an exhaust fan contained in the chute of an airconditioning system unit, which was mounted on the roof of the Ministry of Education building in Royal Street, East Perth. The appeal is only concerned with the adequacy of the award of damages. The award of damages was made up as follows:
Past loss of earning capacity $ 16,905.45
Interest $ 1,124.86
Past loss of superannuation $ 1,318.78
Interest on past loss of superannuation $ 87.75
Future loss of earning capacity $ 68,299.00
Future loss of superannuation $ 6,220.68
Gratuitous and paid services $ 4,233.17
Fox v Wood component $ 25,685.10
Special damages $ 1,087.35
Future treatment costs $ 3,000.00
General damages $ 25,000.00
Total $152,962.14
There are no less than sixteen grounds of appeal which challenge practically every head of damages.
Background and Employment History
The learned Judge recounted the appellant's background and employment history in terms which appear to be uncontroversial. The appellant left Armadale Senior High School in mid‑1987 after completing the first semester of year 11. He had learning difficulties throughout his schooling. He was failing in his subjects and this prompted him to join the workforce at that time. He immediately gained employment with Wormall Contracting as a full‑time labourer. He ceased that employment in December 1988 and was then employed by Michael McKrill as a full‑time roof tiler until June 1990. For a few months in 1990 he was employed by one Gary Mackiell as a casual furniture removalist. From September 1990 to October 1992 he was employed by L & N Harper as a full time grano worker.
In October 1992 he commenced employment with Action Blast as a full time sandblaster. Here he learned the trade of sandblasting and he engaged in this occupation for 12 months through to 18 October 1993. Thereafter he was employed by his father who operated Maida Vale News. He worked as a full time newspaper delivery agent for 20 months through to 30 June 1995. In August 1995 he suffered a fracture of the right femur and was out of work for some six or seven months.
On 26 March 1996 after an interview and a medical check-up the appellant was employed by the respondent trading as Mills Sign & Painting Services to work full time as a sandblaster. The appellant did not hold any trade qualifications or certificates for sandblasting. When he had previously been employed by Action Blast his work involved heavy industrial sandblasting, removing paint from heavy equipment such as excavators and loaders and other machinery before repainting. This work was done in the outdoors. His work with the respondent was mainly undertaken in a sandblasting shed and sometimes outdoors and involved sandblasting machinery and sometimes pipes and rims. Before commencing work with the respondent he was asked if he knew how to use a sandblaster which he did by reason of his previous employment and was then sent to work. He received no instructions or training from the respondent in relation to the use of the sandblasting equipment.
Sandblasting involves sand being pumped under pressure from a supply hopper through a reinforced hose so that the sand coming out the hose nozzle is of sufficient force to remove paint from metal and other surfaces so as to render them clean for repainting. As his Honour put it:
"A simple analogy is water going through a garden hose through the nozzle producing a fine spray."
The worker wears a helmet for protection. The helmet is similar to, but larger than, the type of helmet worn by racing motor cyclists which has a tube from a compressor which pumps fresh cool air into the helmet. The operator also wears a blast suit or heavy duty apron and safety gloves for protection.
The Accident
On Friday 17 May 1996 the appellant was asked by his employer if he would like to do some overtime work on the weekend. He was told that the work was at the Education Department on Royal Street, Perth, and that he would meet another worker there who had done the type of work to be undertaken previously. The appellant duly attended the next morning, Saturday 18 May 1996 at 7.00 am, where he met another employee of the defendant, Mr Geoff Oldfield. They then proceeded up onto the roof of the building where all the equipment to undertake the work was located, it having been left there from previous weeks when similar work had been undertaken.
As pleaded in the statement of claim, the relevant facts were that on the weekend of 18 – 19 May 1996 in the course of his employment, the appellant was required to sandblast the exhaust fan contained in a chute of the airconditioning turbine system unit mounted on the roof of the Ministry of Education building, which necessitated him to work in a confined and insufficient space, holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands for long hours. In the course of this work, he suffered injuries to his back.
As a result of the accident, it was alleged that the appellant suffered soft tissue injury to his thoracic spine; posterior bulging at the disc of L3/4 and L4/5; posterior herniation of the L4/S1; central disc protrusion of L5/S1; and soft tissue injury to his cervical spine.
The appellant pleaded that the injuries he sustained were caused by breach of his contract of employment by the respondent, its servants or agents or, alternatively, negligence. The same particulars were relied upon for each cause of action, namely, that:
"The [respondent], its servants or agents:-
(a)failed to take all reasonable precautions for the safety of the [appellant] in that the [respondent] instructed the [appellant] to carry out sandblasting duties:-
(i)for prolonged periods in a closed and confined area with insufficient work space holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands;
(ii)requiring the [appellant] to work in awkward positions for prolonged periods holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands.
(iii)involving the [appellant] to lift, carry, pull and push heavy objects without being able to maintain an ergonomically safe posture;
(b)exposed the [appellant] to a risk of damage or injury of which it knew or ought to have known in that the [respondent]:-
(i)required the [appellant] to work without adequate rest breaks;
(ii)set unrealistic deadlines for the work to be completed by the [appellant];
(iii)requiring the [appellant] to work in awkward positions for prolonged periods holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands;
(c)failed to provide a safe system of work for the [appellant] in that the [respondent]:-
(i)failed to provide sufficient co-workers necessary to assist the [appellant] with sandblasting duties;
(ii)failed to instruct the [appellant] as to how to work in a confined space without a risk of injury;
(iii)failed to carry out a risk assessment in respect of the sandblasting duties on the exhaust fan contained in a chute of the air-conditioning turbine system prior to instructing the [appellant] to carry out the job;
(iv)failed to implement a safety policy in respect of sandblasting duties;
(v)failed to warn the [appellant] as to the risk of injury in the event of him working in a confined space holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands without adequate rest breaks and assistance;
(vi)failed to render any or any sufficient supervision of the [appellant] in his sandblasting duties."
In respect to the negligence claim, the appellant also pleaded further or alternatively that the injuries sustained were caused by breach of the statutory duty imposed on the respondent pursuant to s 19 of the Occupational Safety and Health Act 1984 (WA) on the part of the respondent, its servants or agents in that the respondent failed to:
"(a) provide and maintain a workplace, plant and system of work such that, so far as is practicable, the [appellant] was not exposed to hazards;
and
(b)provide such information, instructions and training to, and supervision of, the [appellant] as was necessary to enable him to perform his work in such as manner that he was not exposed to hazards."
The respondent company admitted that it employed the appellant and that in the course of his employment he was required to undertake the work in question. The respondent otherwise denied the allegations in the statement of claim and contended in its defence that:
"5.The [appellant] was an experienced sandblaster adequately supervised. The [appellant] was instructed in the proper way to use the equipment provided.
6.The [appellant] has failed to mitigate his damages by:
(a)failing to apply himself to rehabilitation and work trials;
(b)exaggerating his symptoms to medical practitioners;
(c)failing to seek any or any appropriate employment."
It was apparent from the evidence of the appellant, which was accepted by the learned trial Judge, that the work on which the appellant was engaged was carried out in an extremely confined space. Externally, the chute of the airconditioning turbine system casing was 1.87 m wide and 2.52 m high. The casing was cylindrical, but tended to a point at the top. At either end the casing was vertical. There was an opening 300 mm high x 870 mm wide on one of the cylindrical sides. The bottom of the opening was 1220 mm above the base level of the unit. On the opposite side from the entry there was a duct which takes cold air into the building. Inside the unit there was an impeller comprising what might be described as a number of fan blades which were located centrally and horizontally across the unit. The ends of the blades were 500 mm from the vertical sides of the unit. The length of the fan blades was about the same as the width of the opening, namely 870 mm. There was a clearance of some 560 mm ‑ 585 mm between the edge of the fan blades and the internal cylindrical wall of the unit. There was no flat floor inside the unit as the bottom, (below the fan blades), follows the unit's cylindrical shape.
The work to be undertaken required sandblasting of the fan blades, internal walls, cleaning out of the unit, applying a primer to the cleaned areas and then applying a final coat of paint. The job had to be completed over the weekend, when airconditioning was not required and the building was unoccupied. The appellant's co-worker, Mr Oldfield, told him that he had previously done two other chutes and that the work was not good enough because they had been done from the outside through the entry opening. The appellant was told that he would have to go inside the chute to sandblast the fan blades. Preparatory work involved taping up internal areas of the unit with plastic and tape. Oldfield taped up the airconditioning duct so as to ensure that sand did not go through into the ducting. The appellant was instructed to go inside the unit and start blasting. The appellant then described what happened as follows:
"The helmet wouldn't actually fit in there with me wearing it, so we had to put it in sidewards; it was too small, the gap. So I put the helmet in there and all the hoses, and you got up onto a stepladder because the opening is fairly high because, you know, the stepladder was about three steps, and I had to get in sort of legs first and then pull my head back and get that in there because its not a very big gap, and then trying to get a footing and I just couldn't get a footing because it was all rounded and a big fan in the middle. So I couldn't even stand up in there…"
Once inside the appellant's job was to sandblast the fan and all the sides of it and the inside walls of the chute. Oldfield had simply told him "sandblast everything inside." There were no instructions about how he should proceed. The preparatory work took about two to three hours and sandblasting commenced between 10 and 11 am. It was the appellant's evidence that he was "in there for five or six hours." Oldfield remained on the outside refilling the sand pot when it emptied. Not being able to stand up the appellant adopted the position of lying in the bottom of the chute underneath and fan and working above himself. As the appellant described it:
"Some of it I had to stretch my arms up as much as I could and just put my other arm – just put my other arm and somehow I just had to twist around and try and get as far as I could up, you know, while laying down. I mean I was having trouble getting parts of the fan and things. The fan itself wasn't too bad because it was loose and just freewheeling so I could push that around but to actually get up the sides up the top and that it was very difficult. I mean a lot of it I – you couldn't see if you'd got it or not."
While in the chute the appellant took a few breaks while he was lying on the bottom of the chute. He got out once for a toilet stop of about 20 minutes. He also got out at lunch time when he had a break of about one hour. He described the difficulty which he had in working in such a confined space, both insofar as positioning and moving and twisting his body was concerned, coupled with wearing the safety equipment and helmet, manoeuvring the hoses and the vibration of the hose while it was emitting sand under high pressure. He had never previously been engaged in sandblasting in a confined space.
The appellants' evidence was that by about lunch time his lower back was quite painful. He mentioned this to Oldfield. Nevertheless, he continued sandblasting after lunch. The sandblasting was completed before they finished work that day. At no time did Oldfield do any of the sandblasting. Before leaving, the appellant told Oldfield that because of the soreness in his back, he did not want to work the next day. Oldfield's response was that he could not contact the boss and said:
"You've got to come in because we have to have two people to do the job. One stand [sic] on the outside and watch while the other person's doing the job."
The appellant went home, had a shower and went straight to bed. When he woke up next morning his lower back was very sore, but nevertheless he turned up for work at 7.00 am. On the Sunday the appellant and Oldfield took it in turns of getting into the chute to clean down the walls and vacuum the sand. The vacuum cleaner remained outside the chute. When the vacuum cleaner filled with sand it then was emptied of sand into 20 litre steel buckets. It took the two of them to lift the vacuum cleaner to empty it, with the consequence that whoever was in the chute had to get out to help the other empty the vacuum cleaner.
The vacuuming took about three or four hours. They ended up with four buckets each half to two‑thirds full, and the vacuum cleaner full of sand. When this work was done it was necessary to carry the buckets of sand across the roof and over a meshed walkway and down two flights of stairs. They together carried the vacuum cleaner down the stairs. Part way down, the appellant had to take a rest and complained to Oldfield of his back soreness. He estimated that the weight of the vacuum cleaner filled with sand weighed about 50, 60 kilos. They finished work between 3.30 and 4.00 pm. The appellant went straight home, showered and went to bed with his sore back.
Medical Treatment and Work Trials
The following morning, the appellant telephoned his employer to say that he wanted the day off to see a doctor. He was told that there was too much work on and that he was needed. Being concerned that he might lose his job if he did not attend, he went to work. He commenced sandblasting some large metal pipes but, after about two hours, the pain worsened. He was unable to stand upright and was in a great deal of agony. He left work and went to his parent's home. His mother made an appointment for him to see his general practitioner, Dr Offer, the next day. X‑rays were taken and he was prescribed analgesic medication and subsequently referred to Mr John Ker. He received conservative treatment including physical therapy programmes, medication and attendance on various medical practitioners. He subsequently engaged in work trials in January 1997 at Coventrys as a storeman, in September 1997 at Melville Nurseries as a gardener's assistant and in December 1997 as an attendant at an Ampol service station in Kelmscott. He also attempted a work trial at Ginger's Gull Roadhouse at Upper Swan. None of these work trials lasted very long because he developed pain in his back and was not able to be usefully engaged. The work trial at Upper Swan involved travel of about 45 minutes. By the time he arrived there he was in no condition to work by reason of pain in his back.
The Consequences of the Work Injury
The appellant gave evidence at the trial that he suffered pain in the lower back, the middle back and in the area of the shoulders and neck. The pain in the lower back persisted most of the time. He also suffered frequent headaches requiring him to take medication and rest. As a consequence of his physical problems he had sought treatment for depression. He had none of these problems of which he complained at trial before this incident. He had not returned to or engaged in any form of employment other than the work trials and had not applied for any employment. He felt that his condition was such that he simply could not undertake any form of employment. He said in evidence that, if he had not suffered the injury, he would have gone to the north west of Western Australia to work where he knew there were opportunities for workers with his skills and experience. Had he remained fit and able he intended to work for the rest of his life to age 60 to 65 years.
The learned Judge found that prior to the weekend of 18 – 19 May 1996, the appellant was a fit, healthy and outgoing person who had experienced no previous problems with his back. He did heavy labouring work involving bending, lifting and carrying without any trouble. In October 1995 he had sustained a broken leg but made a satisfactory recovery prior to commencement of his employment with the respondent. He said that he had given thought to going up to the north west of Western Australia where he knew there were jobs offering for experienced sandblasters. It was his intention that he would to work to the age of 60 or 65 years. He had no intention nor qualifications to do other than physical labouring work. He had participated in various sports including water skiing, soccer, martial arts, fishing, indoor cricket and bush walking. He used to go nightclubbing with friends but does not any more. He has not participated in any of those recreations since he sustained his injury.
At the time he gave evidence, he described having a lot of sharp stabbing type pain in his lower back, which was pretty much constant. He experienced pain in the middle back and in the shoulders and neck region. The pain in those areas started approximately twelve months after the incident. From time to time he had pins and needles down both legs. He had headaches every couple of weeks, with not much relief from medication. The headaches comprised a throbbing at the back of his head, which caused him to feel sick. He had not previously experienced such headaches. The pain has caused him aggravation and led to him experiencing symptoms of depression. He tried marihuana to reduce his level of pain, but ceased this some six months prior to trial on medical advice. He said he only slept three hours at night because he was woken by pain in his back.
The appellant's workers' compensation payments ceased on 2 August 1999 and he had since been in receipt of social security payments. He was taking a plethora of medication, namely, Doxepin, a sedative antidepressant, Cipromil, Digesics as painkillers, Celebrex, and Zyprexin for depression. All of the medication had been prescribed.
The appellant said that sitting for long periods caused back pain. So far as housework was concerned, he has done some washing up and cooking, but is unable to lift any heavy items such as taking out bags of rubbish or carrying groceries, etc. The learned Judge commented that:
"He is, it would seem, pampered in the home environment by his parents and by two sisters who live at home."
The appellant had not attempted to resume his employment as a sandblaster. He had undertaken work trials in 1997 without success. The learned Judge noted that apart from his back pain, the appellant suffered from learning difficulties in reading and writing during his school years. This was noted by many of the doctors who gave evidence. It was accepted that by reason of this his fields of vocational employment were more restricted. Consequently, the appellant was only suitable for manual work of the sort which he had undertaken since he left school. His Honour acknowledged that this factor must be taken into account in assessing his future options.
Findings by the Trial Judge
On the basis of the medical evidence, the learned Judge made the following findings:
"1.The [appellant] suffered a soft tissue injury to the dorso lumbar spine, a non-specific low back sprain injury.
2.The [appellant] may have suffered a central disc protrusion from L5/S1 but that if he did it is only minor. Mr Ker referred to a disc abnormality, Mr Williams to a mild central disc bulging and Mr Gee to a small central disc protrusion. Mr Marsden was not convinced that there was a significant disc protrusion lesion. Both Mr Brash and Mr Schaeffer considered the disc was within anatomical limits.
3.From very early on in his treatment regime the [appellant] has been apprehensive about experiencing back pain. Mr Ker referred to 'undue apprehension' and Mr Brandis reported that the [appellant] expressed keenness to get back to work 'as long as nothing hurts my back'.
4.Motivation, or lack thereof, has been a significant factor in the [appellant's] presentation. Both Mr Mustac and Mr Schaeffer commented that motivation was a significant factor in determining the [appellant's] future. Lack of motivation in my view follows as a progression from the early apprehension which the [appellant] had as to his future.
5.The weight of medical evidence clearly is that there are inconsistent signs as between the [appellant's] presentation which are not supported by the clinical findings. See the evidence of Mr Ker, Mr Gee, Mr Brash, Dr Marsden and Mr Schaeffer.
6.No invasive measures for treatment have ever been considered necessary. From the outset the medical advice has been management through exercise, muscle strengthening, maintaining physical fitness and avoiding aggravating circumstances. Mr Gee notes marked improvement after the [appellant] undertook a 10 week physical training programme in 1998. Unfortunately, however, the [appellant] has not maintained any physical fitness regime and has on the evidence of Dr Marsden and Professor Harper become physically deconditioned.
7.The weight of medical evidence and a view consistently expressed by most doctors and which I accept is that the [appellant] is unfit to return to heavy manual labouring type work.
8.Again, the weight of medical opinion is that at the very least he can do full time light duties in occupations such as a storeman, console operator, process worker, or the like. The only qualification to that would be that those duties do not require a high level of numeracy or literacy that being as a consequence of the [appellant's] early learning difficulties. That is a factor which will undoubtedly impact on the range of employment in those areas which might be available to the [appellant].
9.Again based on the weight of medical opinion I find that the [appellant] has been fit for full time light duties work since, at the latest, the end of 1998. Despite that, the [appellant] has done nothing, either in the way of work trials or looking for employment since then and on his evidence and that of his parents does nothing or at the most very little so far as domestic work in the home environment.
10.I find that whilst the [appellant] may have ongoing lower back pain it is not so debilitating that he is unable to do anything. Nor do I accept his own assessment of his situation, that being that there is no job that he can do. As I have stated earlier I do not accept that he is an invalid. Apart from the extreme view of Professor Harper none of the medical evidence supports the [appellant]. The [appellant's] own assessment clearly reflects the apprehension and lack of motivation which the doctors have spoken about in their reports.
11.The range of loss of efficient function of the thoraco-lumbar spine ranges from 20 per cent (Professor Harper and Mr Goodheart) to 10 per cent Mr Narula, 5 per cent Mr Marsden and nil Mr Brash and Mr Schaeffer. I find on balance that the range is between 5-10 per cent at most.
12.I do not accept that the cervical/neck pain which the [appellant] complains of is a consequence of the work related injury. No pain in that area nor headaches were indicated until some two years after the event and which were initially indicated to Mr Williams."
Assessment of Damages
The learned Judge noted that the appellant was paid by the respondent weekly payments of workers' compensation at the rate of $655.20 gross per week between 20 May 1996 and 2 August 1999. The rate paid was the award rate effective at the time when the injury was sustained for 40 hours work per week pursuant to the National Building Trades Award. In fact, the appellant was employed as a casual sandblaster and, according to his pay advice (Exhibit 7), his average gross earnings per week over the period during which he was employed by the respondent was $547. It was contended by the respondent that that rate should be used as the base against which to calculate any past or future economic loss. I do not accept that proposition. The proper measure of damages is the loss of earning capacity of the appellant. The learned Judge found that the appellant had the capacity to earn the award rate and that, if he had gone to the north west, as he intended, his earnings may well have exceeded that rate. For these reasons, his Honour took the award rate as being appropriate as the basis for calculation of loss or earning capacity.
The appellant paid income tax in the sum of $159.10 per week on his gross weekly income of $655.20. The appellant estimated that the total amount of income tax paid by him on his weekly payments of workers' compensation was in the sum of $25,685.10. This amount was recoverable as damages representing the additional loss by having to repay the gross amount of workers' compensation when he had received the benefit of only the net amount after tax: Fox v Wood (1981) 148 CLR 438.
The trial Judge had evidence in the form of a report from Professor Charles Mulvey, a consultant to Labournet. This report provided an analysis of the availability of jobs for the occupations of a service station console operator and storeperson, the number of people who are employed in them, the sort of duties performed in such positions and a summary of weekly payments payable to persons engaged in them. For service station console operators, the award rate of pay (gross per week) was $439.60. The going market rate was as per the award. For storepersons the award rate of pay was between $460 - $500. The market rate (being the average weekly income before tax for storepersons then employed) was $581.37.
The learned Judge concluded that by the end of 1998 the appellant was fit to undertake employment in either of those capacities. He assessed the appellant's earning capacity as being the median between the award rate for a service station console operator and the market rate for storepersons, namely, $510 per week "rounded off". From 1 January 1999 to 2 August 1999 the appellant continued to receive weekly payments of workers' compensation at the award rate. Thus, no loss was sustained to the latter date. The learned Judge calculated the past economic loss between 2 August 1999 and 30 November 2002 as follows:
"(a) Between 2 August 1999 and 30 June 2000:
The rate of income tax payable by a single person living in the metropolitan area of Perth on the gross weekly income of $655.20 was $159.10 per week leaving a net weekly income of $496.10.
The rate of income tax on the median rate of $510 was $107.65 leaving a net weekly income of $402.35.
The net weekly loss during that period is $496.10 - $402.35 = $93.75.
The [appellant's] past economic loss between 2 August 1999 and 30 June 2000, a period of 47 weeks at the rate of $93.75 per week is $4,406.25.
(b)Between 1 July 2000 and 30 November 2002 the rate of income tax on $655.20 is $140 per week leaving a net weekly income of $515.20.
The rate of income tax on $510 per week is $94 per week leaving a net weekly income of $416.
The net weekly loss during that period is $515.20 - $416 = $99.20.
The [appellant's] past economic loss between 1 July 2000 and 30 November 2002, a period of 126 weeks at the rate of $99.20 per week, is $12,499.20.
(c)Past economic loss between 2 August 1999 and 30 November 2002 is $4,406.25 + $12,499.20 = $16,905.45.
(d)Interest at the rate of 2 per cent per annum (given that rates over the period have been in the order of 4%) on past economic loss in the sum of $16,905.45 between 2 August 1999 and 30 November 2002, a period of 173 weeks, is the sum of $1,124.86."
The total awarded was $16,905.45 plus interest of $1,124.45. The learned Judge calculated the appellant's past loss of superannuation, using an average for the period 2 August 1999 to 30 November 2002 at $1,883.97. His Honour adopted the figure of 30 per cent which was used in Jongen v CSR Ltd (1992) Aust Torts Rep 81‑192 to allow for administration and fund management fees and the impact of taxation on the gross contributions. Accordingly, the appellant was allowed for loss of past superannuation benefits $1,883.97 – 30% = $1,318.78 together with interest on that sum at 2 per cent per annum of $87.75. The total amount for past economic loss was $17,470.64.
So far as the appellant's future economic loss is concerned, the finding by the learned Judge was as follows:
"The plaintiff is now 32 years old having been born on 12 November 1970 and has a future employment life of 33 years. He has a net weekly loss of $99.20 for a period of 33 years. The multiplier for 33 years on 6% Discount Table of Multipliers for weekly loss of income is 765. The plaintiff's future economic loss is $99.20 x 765 = $75,888. That amount will be reduced by 10 per cent for contingencies leaving an amount for future economic loss (rounded off) of $68,299."
As to the remaining heads of damage, the learned Judge expressed his conclusions as follows:
"For future loss of superannuation benefits on the difference between the gross weekly award rate and the gross median rate, ie $145.20 a rate of 8 per cent calculated for the period of 33 years will be allowed. The loss per week (as indicated above) is $145.20 of which 8 per cent equals $11.62 per week. Therefore $11.62 x 765 = $8,886.24 – 30% = $6,220.68 (Jongen v CSR Ltd & Anor (supra)).
I am satisfied that whilst the plaintiff was incapacitated and not able to be gainfully employed he did require assistance by way of gratuitous and paid services which were provided to him by his family and a neighbour. Accordingly I will allow gratuitous and paid services on an average of two hours per week from 20 May 1996 to 31 December 1998, a period of 125 weeks. I am not satisfied that he has since then or will in the future reasonably require such services. Allowing an agreed rate of $15 per hour for two hours per week totals $30 per week for a period of 125 weeks = $3,750. Interest at the rate of 2 per cent per annum on $3,750 from 20 May 1996 to 30 November 2002, a period of 335 weeks = $483.17. Thus the claim for past gratuitous and paid services together with interest thereon will be allowed in the sum of $4,233.17.
For medical treatment and reviews a modest sum will be allowed. On the preferred medical evidence analgesics is as much as should be required for the future, gymnasium membership to get fit and keep in shape, the occasional doctor's visit and an allowance for travelling is, in all the circumstances, all that is warranted. A sum of $3,000 would be a generous allowance. For the reasons previously expressed I am not of opinion that consultations with psychiatrists, neurosurgeons or for regular physiotherapy or massage are warranted.
The plaintiff claims reimbursement of the statutory allowances paid by the defendant in the sum of $30,171.03 pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 as amended. I was not addressed as to why this sum should be reimbursed. It was paid by the workers' compensation insurer who paid the weekly compensation payments. Why should the plaintiff be reimbursed for something which he has not paid? If there is substance to the claim for reimbursement (which I am missing) then I will hear counsel at the time when final orders were made.
The plaintiff also claims medical expenses (after amendment) of $732.70 and pharmacy expenses of $354.65. An allowance for these items in the sum of $1,087.35 will be made.
For his general damages for pain and suffering that the injury has caused him and may cause him in the future and the loss of satisfaction in being unable to pursue recreational interests and a career as a sandblaster I will allow the plaintiff $25,000."
Under s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA), damages can only be awarded if the disability results in death or is a serious disability. A worker is only deemed to have suffered a serious disability if the future pecuniary loss is no less than the prescribed amount as at the date of judgment. The relevant figure is reviewed on 1 July every year and as at the date of judgment in this case, on 9 December 2002, the relevant amount was $130,609. In the result therefore, the action was dismissed with costs.
Grounds 1 and 2
It is convenient to consider grounds 1 and 2 of the grounds of appeal first.
Ground 1 contends that the learned Judge, having accepted:
(a)in par [102] of his reasons that the appellant was of below average verbal ability,
(b)in par [105] of his reasons that the appellant had a good prior work history and was a willing worker who had been used to heavy labouring work; was not a malingerer and had no prior history of back complaint; and
(c)having accepted in par [118](7) of his reasons that the appellant was unable to return to heavy manual work, erred in assessing damages at $152,962.14 as:
(i)the award was well below an amount which would be awarded had the learned Judge exercised sound discretionary judgment; and
(ii)the award was both unreasonable and unjust.
Ground 2 contends that the learned Judge erred in failing to make an adequate allowance for:
(a)loss of earning capacity past and future by finding that the appellant's retained earning capacity was $510 gross per week;
(b)loss of past and future superannuation entitlements;
(c)loss of interest on past earning capacity;
(d)future medication, consultations and treatment;
given that the appellant:
(i)had learning difficulties through his schooling (par [118](8)) of the reasons;
(ii)had limited earning capacity prior to the accident as he was restricted to physical, manual, labouring tasks (par [117] of the reasons);
(iii)the appellant suffered a soft tissue injury to the dorso‑lumbar spine, a non‑specific lower back sprain injury;
(iv)the appellant "may have" suffered a central disc protrusion from L5/S1 of a minor nature (par [118](1) and (2) of the reasons);
(v)the appellant's back complaint impacts upon his employability (par [117] of the reasons).
It was contended that on the facts found, the damages awarded were inadequate; there were relevant matters in respect of which there were no findings which, if proper findings had been made, would have increased the damages; and there was an inadequate approach by the learned trial Judge to the employability of the appellant.
It is a matter for significant concern and regret that in this case, while the action was heard on 6 – 10 August 2001, the reasons for judgment were not delivered until 3 December 2002, some 16 months later, although the trial Judge called the parties to attend the Court on 15 November 2002 and announced that he had found for the appellant on the issue of liability and would publish his reasons later, as he did on 3 December 2002.
It was submitted on behalf of the appellant that, given the findings of the trial Judge referred to in ground 1, pars (a) to (d), the assessment of damages was erroneous as it was well below an amount which would be awarded had the learned trial Judge exercised a sound discretionary judgment and was an unreasonable and unjust award. In support of this contention, the Court was asked to have regard to the matters specified in ground 2(1)(v); 3(a) – (c), 6(a) – (l), 8(a) – (c), 10(a) – (f) and 12(a) – (d). Each of these matters was relied upon by way of particulars in support of the submission.
It was contended on behalf of the appellant that, as a result of the events described, the appellant had suffered a low back injury which caused a central disc protrusion at L5/S1 with no impingement on the nerve. There was low back pain symptomatology from the outset and the appellant had not worked since the accident on 18 May 1996. It was contended that the damages awarded by the learned trial Judge were inadequate, even accepting his findings. Further, it was contended that there were identifiable errors, namely, a failure to assess properly the loss of earning capacity, the future economic loss and, in particular, a failure to address the issue of employability of the appellant. In this respect, it was contended that the appellant suffered from a learning difficulty, so that he was limited to physical work. His pre‑accident work had been heavy labouring work such as a grano worker, involving concreting as well as a furniture removalist and roof tiler. Three of his previous employers testified how good and what a willing worker he was, but from the day of the accident in question, he had not worked.
It was submitted that given the appellant's learning difficulties, the trial Judge had before him a plaintiff who did not have an earning capacity for any form of intellectual work. He had no capacity for clerical work or work involving literacy or numeracy skills. His only capital asset was his capacity for physical work which had been taken away from him as a result of the accident. It was also submitted that, while the learned Judge found that there was a 5 to 10 per cent permanent physical disability, the fact that the appellant was only capable of physical work considerably restricted him in the open labour market. Reliance was placed on the finding by the learned Judge at par [102] where his Honour appears to have accepted the evidence of the psychologist, Mr Brandis, who undertook a vocational assessment of the appellant in 1996. His assessment was that the appellant was a person "… of below average verbal and average non‑verbal ability". In respect of that, the learned Judge commented that:
"Consistent with that it was my observation that the [appellant], whilst he was in the witness box, whilst he understood most questions put to him without difficulty and answered appropriately, he was nevertheless not a naturally articulate person."
The learned Judge concluded at par [105] that:
"It is also relevant in my assessment of the [appellant] that he had a good prior work history and was a willing worker who had been used to heavy labouring work. There was no suggestion by any employers that he had been a malingerer. The [appellant] had no prior history of back complaint."
It was contended that there had been a failure on the part of the trial Judge to properly address the issue of the appellant's employability. Consequently, although there was a finding of a loss of only 5 to 10 per cent permanent disability that had to be seen in a context where his intellectual capacity considerably restricted the appellant's opportunities in the open labour market. As has been seen in par [118] subpar (8), there was a finding by the learned Judge that:
"… the weight of medical opinion is that at the very least he can do full time light duties in occupations such as a storeman, console operator, process worker, or the like. The only qualification to that would be that those duties do not require a high level of numeracy or literacy that being as a consequence of the [appellant's] early learning difficulties. That is a factor which will undoubtedly impact on the range of employment in those areas which might be available to the [appellant]."
It was conceded on behalf of the appellant that he could do full‑time light duties in occupations such as storeman, console operator, process worker or the like, providing no heavy manual labouring was involved and providing no numeracy or literacy skills were required. As has been seen, the learned Judge found that the weight of medical opinion was, at the very least, he could do these full‑time light duties in such occupations. His Honour, however, found that the only qualification to that would be that "those duties do not require a high level of numeracy or literacy that being as a consequence of the [appellant's] early learning difficulties".
It was acknowledged, however, that this was a factor which would undoubtedly impact on the range of employment in those areas which would be available to the appellant.
It went against the appellant's case that the learned Judge found that, although the appellant had been fit for full‑time light duties work since, at the latest, the end of 1998, he had done nothing, either in the way of work trials or looking for employment since then. On his evidence and that of his parents, he did nothing, or, at the most, very little so far as domestic work in the home environment was concerned.
As I understood the appellant's case, it was that accepting the findings made by the learned trial Judge, the amount of damages awarded was wholly inadequate. Counsel for the appellant accepted that this was his first proposition. The second proposition went further and suggested that in some areas there were either no findings or incorrect findings. An example related to the appellant's learning disabilities. Evidence of the appellant's limitations was given by both the appellant's parents, but no specific findings were made by the learned Judge in relation to their evidence.
The starting point, however, was that, accepting the findings by the trial Judge, the appellant was a labourer with a 5 to 10 per cent back disability. It was submitted that it follows from this that his ability to obtain employment was, as a matter of common experience, severely compromised, taking into account his intellectual disability. As counsel for the appellant put it, it is one thing to have a theoretical capacity from an orthopaedic point of view, but it is another thing to translate that into a job in the open labour market, which was the thrust of the evidence of Professor Harper, Dr Marsden and Mr Febbo, to which I will refer in detail in due course.
In the context of ground 2, reference was made to the finding by the learned trial Judge at par [120] – [121]. His Honour concluded, in the light of an analysis of the availability of jobs for the occupations of a service station console operator and storeperson, that by the end of 1998 the appellant was fit to undertake employment in either of those capacities. It was then determined that the appellant's earning capacity was the median between the award rate for a service station console operator and the market rate for storepersons, namely, $510 per week rounded off. As from 1 January 1999 to 2 August 1999, the appellant continued to receive weekly payments of workers' compensation at the award rate. No loss was sustained to that date. In fact, as counsel for the appellant pointed out, the evidence was that workers' compensation payments were paid to the extent of the prescribed amount of $105,776.96 which was received between 20 May 1996 (two days after the accident) and 2 August 1999 during which period he received weekly payments at the rate of $685.20 gross per week or $496 per week net.
It was contended that the learned Judge wrongly credited the appellant with an earning capacity of $510 gross per week because the employability of the appellant had to be taken into account. His Honour had evidence that the appellant had gone to work trials and had done the console operating work trial at Ginger's at Upper Swan as a console operator from which he was sent home on the basis that he was in no condition to do the work. He then saw his general practitioner, Dr Offer, who suggested that the appellant did not do the work any more. At the same time, it had been found by the learned Judge that he was not a malingerer, as has been seen.
In addition, there was also a work trial as a storeperson with Coventry Motors commencing on 22 January 1997. He commenced working for two days a week for two hours and slowly increased to six hours. At that point, the hours had to be reduced because it was hurting his back too much. The work as a storeman involved lifting, carrying and bending as well as climbing up ladders. According to the appellant's evidence, quite often there were things in big boxes that were light and things in big boxes that were not light. As the appellant himself put it:
"You didn't really know what was what so it was a bit deceiving. I mean probably every couple of hours I was going into the lunch room and sitting down for half an hour to let my back calm down."
The work trial lasted for about six weeks but he was unable to continue with it because it hurt his back too much if he did more than a few hours.
On 15 September 1997, he commenced a part‑time work trial at Melville Nurseries as a gardener's assistant. He worked for two hours a day for two days. He could not manage the work because the work place was:
"… on a big hill with gravel, so I had to walk up and down this big hill and also do a bit of weeding and replanting. It just stirred my back up really badly."
The location was at Carmel and the work surface was very uneven. His work required taking plants from small pots to put into bigger pots. When that started to hurt his back, he was told to walk down the hill and see the boss who directed him to do some weeding. This was no better. He only worked for the two days for two hours and had to go back and see Dr Offer because "the pain increased too much".
On 8 December 1997, he attended a third work trial at the Ampol Service Station in Kelmscott. His duties involved reaching up to get cigarettes and other items and reach over the counter with the bottles and other things that were purchased. As he himself put it:
"… they never had a seat there so I couldn't sit down or anything and it just didn't seem to work out very well. My back got into a fair bit of pain again and I only did a few weeks – a few days there, I think it was."
According to Professor Andrew Harper, the applicant was incapacitated for his pre‑accident work as a sandblaster:
"In the future I would not expect him to be capable of returning to a manual job at any stage. At present (ie as at 2 August 2001), I feel he is incapacitated for all forms of gainful employment. While I expect some improvement in his physical capacity with time, my opinion is that improvements will be insufficient to permit him in the future to compete for employment in the open workforce. This injury precludes him from physical and manual work which was the only work he was capable of doing prior to his injury. His dyslexia precludes him learning and acquiring skills for sedentary and non‑manual work. I feel his only real prospect for employment are to work in a family business where he would be employed part‑time by his father, or to work in a sheltered work situation."
In a report dated 25 November 1998, Dr Marsden, an occupational physician, noted that the appellant had a diagnosis of a non‑specific low back sprain injury, which was probably facetal originally, according to his history. As Dr Marsden described it:
"He had pain on bending backwards, and has always been locally tender over the right lumbo‑sacral junction, which would be very typical of facet joint type strains. This would also fit well with his history of working in a confined and awkward space, probably at the limits of the facet joints ligaments, with some eventual sprain or strain to these ligaments as the source of his problem. He had no other particular slip, trip or fall.
He seems to be settling down but there are no other workers' compensation factors coming into place, but I do confirm that I am not convinced that he has a significant disc protrusion lesion. I have recommended that he does not have any form of surgery considered, and he is not considering any form of surgical management, nor has this been recommended.
In my opinion he now has a permanent 5 per cent loss of efficient function of his thoracolumbar spine directly due to the working in confined and awkward spaces for prolonged periods on the 18 May 1996.
I have recommended that he does develop his gymnasium programme, particularly with respect to back extension exercises to redevelop the extensor muscles so that his facet joints are protected. I would not recommend facet joint injections at this stage.
He is unfit to work as a sandblaster at the moment, but in my opinion he could work on a full time basis as a console operator, or a storeperson, with appropriate training in lifting and carrying and limitations in his lifting to 10 kg initially, but I suspect there are going to be difficulties with his overall employability due to other independent factors."
On this last point, this would appear to tally with Professor Harper's views on the issue of his employability by reason of his physical and mental limitations.
Evidence was also given by three psychiatrists. Dr Booth was called on behalf of the appellant and Dr Mustac and Dr Febbo were called to give evidence on behalf of the respondent. Dr Booth gave a diagnosis that the appellant had a major depressive disorder. Dr Febbo, however, said that the appellant had significant depressive symptoms falling short of a major depressive order. Asked whether he had given any consideration to the appellant's ability to function in the open labour market given his physical state and the psychiatric assessment made by him, Dr Febbo said:
"I think with the first time I saw him from the psychiatric perspective, you know, he would have been okay to work if he could find something within his physical limitations. The second time I saw him … I got the impression with Mr Richardson that the limiting factor was more of the physical side than the psychiatric sort of issues."
There were also academic limitations. At that time, however, Dr Febbo saw the limiting factors being more physical as opposed to his psychiatric condition. However, by the time of his second examination in February 2000, the appellant revealed "a number of depressive symptoms". There was a diagnosis of depressive symptoms, sleep disturbance and fatigue. This would prejudice his capacity to obtain work.
Dr Mustac, who was called by the respondent, was aware that the appellant's general practitioner had been treating him with anti‑depressant medication for some years. Dr Mustac was not aware that the anti‑depressant was seen by Dr Febbo to be effective to control the appellant's depression. Dr Mustac agreed, however, that on the occasions that he saw the appellant, he had no major depressive disorder.
While Dr Mustac considered that the appellant did not qualify for a mental illness, such as a major depressive illness or any other form of mental illness relating to depression, he also said that the appellant may have had depressive symptoms at the times he had indicated on a couple of occasions. He said he may or may not have needed medication for those symptoms. In the light of this evidence, it was contended that sufficient weight was not given to the depressive symptoms and the limitation on the appellant's employability by reason of his depressive symptoms.
Counsel for the appellant referred the Court to the Education Department school reports from the Challis Remedial Centre for the years in question and a report on the appellant when he was part of the way through year 11 at the Armadale High School. These reports were not included in the appeal book. It was conceded that these may not make any difference to the case, because the trial Judge had made the findings that the appellant was a physical worker with no clerical experience, who had below average verbal ability, learning difficulties and lacked numeracy and literacy skills. In response to an inquiry regarding the purpose of seeking to refer to such reports, having regard to the finding to which I referred, counsel for the appellant contended that the material was relevant to the appellant's numeracy and literacy disabilities so as to counteract any suggestion by counsel for the respondent that there was only hearsay evidence that the appellant was dyslexic. Counsel for the appellant sought to tender the reports in the appeal. Counsel for the respondent suggested that they had been left out of the appeal books because objection had been taken to their tender at the trial as evidence of the truth of their contents without the teacher who was the author being called to say something about them. They were simply put into evidence as reports having been received by the appellant. No teacher was called. They were tendered on the basis that they had been received by the appellant.
Although there was no objection to the tender of the reports at the time, counsel for the respondent said that, at the time of tender, it was not known what the appellant's case was going to be or whether any relevant witnesses would be called to speak to the reports. The objection was subsequently taken that without the authors to speak to their contents they were "worthless". Further, the trial Judge did not refer to the reports in his reasons. It was suggested that no teacher having attended the Court to give evidence as to the contents of the reports, the trial Judge could not give any weight to them. That is the basis upon which the matter was said to have been left. At the same time, counsel for the respondent indicated that if the Court wished to received them he was "not going to argue about it". Counsel for the respondent maintained the objection taken at the trial and that the reports were put in on a specific basis and on that basis objection to their tender in this Court was maintained because without the benefit of a teacher speaking to them they must be given no weight.
In addition, counsel for the respondent pointed out that a Mr Brandis, a psychologist, who did assess the appellant in adulthood after the accident, gave evidence of the results of proper vocational and intellectual testing of the appellant. It was submitted that Mr Brandis' evidence was the best evidence concerning relevant matters.
Counsel for the appellant acknowledged the objection which had been made but had responded at the trial by saying that he sought to tender the reports as the appellant's school reports. They were accepted by the learned trial Judge as such as evidence of their contents. Mr Brandis referred to the results of the Kaufman Brief Intelligence Test, which was a measure of verbal and non‑verbal intelligence. The test was described as useful in determining an individual's general intellectual ability and for obtaining valuable vocational and rehabilitation information, such as the person's ability to follow instructions in English or solve any problems. The report indicated that the appellant completed the tasks and his results indicated that he was a man of "below average verbal, and average non‑verbal ability. These results would suggest that Mr Richardson is suited to practical, hands‑on level training courses".
So far as the school reports are concerned, when counsel for the appellant sought to tender them at the trial, counsel for the respondent said that, if they were being tendered on the basis that the appellant received them:
"I don't have any difficulty. If they're being tendered as to the truth of the matters in them, then I must say I have a major difficulty with that contrary to the rule that only the author of a document can give evidence to it.
...
It seems to me that putting them in and putting to your Honour perhaps in closing that this is indicative of how he was when he was 11 or 12 and that it sets the scene for how he is now would be wrong, and I must object to that, but I am certainly happy for them to go in on the basis that they represent a document he received."
Counsel for the appellant then sought to tender them as the appellant's school reports to which the Judge said, "Very well" and gave them exhibit numbers.
In the result, the documents were marked for identification as exhibit 1 on the appeal subject to the Court determining later the degree to which they were admissible and for what purpose.
The appellant's father gave evidence at the trial concerning the disabilities suffered by the appellant which necessitated his attention at remedial classes since he was in primary school. He failed grade 2 and had to repeat that year and went on basically to remedial teaching for the rest of his schooling. He failed all of the years up to year 11, when he was asked to leave school. He then sought labouring work. One or other of the appellant's parents attended medical appointments with the appellant to make sure that he understood what was going on and to provide assistance "on the literacy side of things."
At the time of the accident the appellant was living with one of his married friends, but he returned home on the Monday after the accident. From May 1996 he was living with his parents, but he got his own place in mid 1998. He returned home, however, toward the end of 1999 and had been at home for approximately 18 months at the time of trial.
In my opinion, ground 2(a) has not been made out. While it is true that, as a result of his injuries, the appellant's earning capacity in the context of physical labouring work was substantially lost. The finding by the learned trial Judge at [121] that the appellant could work as a service station console operator or storeperson as from the end of 1998 and earn $510 per week was clearly open on the evidence. I will deal with this matter more fully in the context of grounds 9, 10 and 12. These grounds are in essence particulars of ground 1. I will deal with each of them in turn.
The appellant's case in support of the grounds of appeal can be encapsulated in two broad propositions. First, it was contended that the learned trial Judge failed to take into account the appellant's intellectual or learning disabilities and dyslexia in concluding that he could carry out the duties of the occupations referred to in his reasons. Secondly, it was contended that the learned trial Judge failed to take into account the appellant's degree of disability.
Counsel for the respondent pointed out that none of the medical practitioners who gave evidence had any personal knowledge of the appellant's learning disabilities or dyslexia. The only evidence on these matters was given by the appellant himself and his parents. There was no expert evidence on this topic.
The respondent called Mr Brandis, a psychologist, who assessed the vocational prosepcts of the appellant in the light of the accident. No question was raised regarding the qualifications or experience of Mr Brandis. He administered a number of tests. He assessed the appellant as a person of below average verbal and average non‑verbal ability. Mr Brandis noted that the appellant was punctual for his appointments on 4 and 5 November 1996. He was friendly and cooperative throughout both sessions, applied himself to the assessment tasks and was open in discussing future vocational options and directions. He was skeptical of future training and stated that he had difficulties at school and would be unsure of undergoing future vocational training. He reported he may find it difficult to obtain future employment as he perceived himself as "purely a hard, physical labouring type person". Mr Brandis reported that:
"During the vocational assessment it was apparent that [the appellant] was suited to realistic type work. Testing indicated that [the appellant] would be suitable to practical hands‑on level training and he stated a preference for the following work aspects:
•Lifestyle
•Independence
•Self‑Development."
He indicated that he would be keen to pursue employment in the occupations of cook, storeman, labouring work, truck driver, courier or dogman. He said, however, that he could not return to employment of a heavy nature. It was suggested that Prime Rehabilitation meet with the appellant to clarify his preferred vocational direction and also discuss with his general practitioner the options for employment in their vocational assessment and, if appropriate, to arrange for his participation in a work trial/training program to determine his skills and abilities and physical suitability to undertake the work.
It was not suggested that the appellant was not fit for work of any kind or that his learning difficulties would preclude him from working. It was accepted, however, that some of the occupations indicated may not be appropriate, having regard to the appellant's physical and intellectual limitations. The appellant expressed his keenness to return to work "as long as nothing hurts my back". He reported to Mr Brandis that he was currently undertaking a back care program with Royal Perth Rehabilitation Hospital and was finding this useful in increasing the mobility and strength of his lower back. In cross‑examination, he agreed that he was not suggesting that he did not have verbal skills and that he had average non‑verbal ability which relates to problem solving ability. Mr Brandis agreed that the appellant would be more likely to prove successful if he had on‑the‑job training where he learned a series of simplified work tasks such as those of a process worker at a bench. It is important to bear in mind that the interview with Mr Brandis took place just one month after the date of the accident.
There was no other evidence that the appellant had any intellectual disability which would prevent him from carrying out the tasks of a process worker at a bench, as Mr Ker had suggested and with which Mr Brandis agreed. It was submitted that while the appellant was of below average verbal ability and average non‑verbal ability, his ability to undertake abstract reasoning was average. It was acknowledged, however, that his parents said he suffered from literacy and numeracy problems, but these were not addressed by Mr Brandis.
There was no expert evidence that the appellant suffered from dyslexia. The only evidence on this topic was from the appellant and his parents. The appellant gave evidence that he was required to repeat grade 2 at school and at that time " … they found out that I had dyslexia." That evidence was objected to. The learned Judge was not asked to rule on the matter, but it is apparent that counsel for the appellant at the trial accepted the objection, saying:
"Well, don't give us a diagnosis but did you have any difficulty completing your school?"
The appellant said that he had difficulty with reading and writing and that in 1980 he commenced at the Challis Remedial Centre in Armadale where he completed grades 4 to 7 and went on to Armadale Senior High School from 1984 to 1987. He gave evidence that the Challis Remedial Centre was for dyslexic people. It was objected that only a medical practitioner could give such evidence. The matter was left on the basis that the evidence indicated that the appellant had difficulty in learning. The appellant's father gave evidence that "according to everyone he came across he certainly had learning problems, dyslexia or whatever you like to call it." Counsel for the respondent commented that:
"If that's evidence of what he was told then certainly I don't have any objection. If it's supposed to be evidence of a fact, then I do object."
The learned Judge noted that comment. The appellant's father gave evidence that the appellant always had learning difficulties and had attended remedial classes since he failed grade 2. Subsequently, he failed each of the years and in 1987, when he was in year 11, he left school and looked for employment.
Asked to assist his Honour by giving some practical examples of the appellant's reading, numeracy or literacy deficiencies, Mr Richardson Senior said:
"I mean, any forms that come in that he has to fill in or anything of that nature – as I say, my wife or myself certainly have to do that. Any documentation that has to be done, we certainly have to read it and in a lot of cases basically say that we read it on his behalf and we have explained it to him and basically repeated it until we fell [sic feel] that he understands it and then say, you know, you're now happy to sign the documentation or whatever, and that has basically been the situation."
The appellant was employed in his parents' newsagency from 18 October 1993 to 30 June 1995. His role was to wrap the newspapers, cart them to the shop and assist with the delivery of the newspapers overnight, seven days a week, for approximately 20 months. It was then that he left his employment with the newsagency and obtained work as a sand blaster.
It is surprising that none of the experts consulted by the parties were asked to assess the appellant's literacy or numeracy skills. The appellant's father said that he had to take the appellant to doctors so that he could fill out forms for him and explain to him what was going on. He also said that at any time the appellant had to fill out forms they had to explain to him what it meant. Mrs Richardson, however, did not say that she went with the appellant to visit doctors only to fill out forms. She said that she took the appellant to see doctors because he had lost his driver's licence and also to help him fill out forms.
The appellant's mother gave evidence that when the appellant came home to do his reading homework " … he had to be prompted with just about every second or third word when he was doing his homework with me. With his writing, his writing was either – the letters were around the wrong way or the words were written back to front or written the way they sounded." In my opinion, this evidence was sufficient to justify a finding of disability in reading and communicating in writing.
Bearing these matters in mind, it seems that the medical evidence was directed primarily to the appellant's physical fitness for work. There remained a question whether the evidence about his literacy and numeracy skills went so far as to render him unfit for occupations such as a storeman, console operator, process worker or the like. In this respect, there was no evidence that the appellant had sought or applied for work of that kind. In my opinion, the evidence before the learned Judge was sufficient to enable him to find that the appellant had difficulty in learning, reading, writing and numeracy skills.
According to Mr Ker, a consultant physician in rehabilitation medicine, conventional forms of educationally based training such as TAFE study were probably not suitable for the appellant, given his previous limited education. The adoption of a purely educational strategy was unlikely to succeed. In Mr Ker's opinion, the appellant was more likely to prove successful in some form of sedentary work involving on‑the‑job training. This would involve learning by direct instruction a few simplified series of work tasks that might involve various forms of process work, where he was able to stand at a bench, where the amount of lifting that he undertook was strictly controlled, and where he did not have to bend, as he did when undertaking a work trial at a nursery. He conceded, however, that as a person who has been out of the work force for 5 years and who had failed four previous work trials, it was "going to be a struggle". Asked how realistic it was, Mr Ker responded:
"Well, I think - I think it's – there is an element of realism in it that each of his work trials, as I understood it, failed – not because he couldn't actually understand the job or he made errors on the job but he actually – in the work trials, these new types of work, he actually failed physically. So I remain hopeful but obviously with a number of reservations that I've expressed today."
Asked how he would compete with other workers in the open labour market, Mr Ker replied:
"Well, in his present situation, without specific skills and without a job to go to, he'd find it very difficult to compete."
At the same time, he regarded the description of the appellant's current level of functioning as:
" … disturbing because it appears to me out of keeping with the severity of the pathology in this young man, as I knew it to exist in 1996 and 1997."
Dr Marsden said that the appellant could do process work in a factory, could work as a console operator and could return to all duties after a physical conditioning regime. Dr Gee said the appellant could do process work in a factory and could work as a courier driver. Mr Brash said that the appellant could work as a console operator, courier driver or storeman and Mr Narula said the appellant could work full‑time in light duties. Mr Schaeffer said the appellant could do his pre‑accident work as a sand blaster, or as a store worker or a console operator. Mr Williams said the appellant could work in light duties.
Dr Marsden's evidence was that the appellant's ability to work as a console operator or storeman was not affected by the fact that he had below average verbal skills and average non‑verbal skills. Mr Ker understood that the appellant's failure at work trials was for physical not intellectual reasons. The only professional witness who suggested that the appellant could not work at all was Dr Harper. His view was that the appellant could only obtain employment in a sheltered workshop. This view was rejected by the learned Judge.
Notwithstanding the absence of expert evidence supporting the existence of an intellectual disability, the trial Judge accepted that the appellant had vocational restrictions independent of the work injury and took these into account in the assessment of damages. In my opinion, the assessment made by the trial Judge was consistent with his findings that the injuries sustained by the appellant were modest and not productive of a high level of disability. So far as the central disc protrusion is concerned, the weight of evidence was that either there was no disc protrusion or that it was of minor pathological significance, according to Mr Ker, Dr Gee, Dr Marsden, Mr Shaeffer, Mr Brash and Dr Offer.
So far as the appellant's employability is concerned, it is clear that the effect of the injury was taken into account in the finding by the learned trial Judge that the appellant was unsuited to heavy manual work. The evidence was consistent with the appellant retaining a capacity for some full‑time alternative work, despite the injury. Further, there was no evidence that the absence of training would preclude the appellant obtaining work as a console operator and the finding that the appellant had the capacity to perform that work was consistent with the medical evidence.
It was submitted that Dr Marsden's comment that the appellant may have difficulty working as a courier driver was based on the assumption that he suffered "intellectual difficulties". There was some evidence suggestive of some reading and comprehension difficulty, although Dr Marsden's oral evidence was that the appellant's ability to work as a console operator was not affected by his below average verbal skills and average non‑verbal skills. In the light of this body of evidence I am of the opinion that grounds 1 and 2 have not been made out.
Ground 3
Ground 3 contends that the learned trial Judge erred in failing to make an adequate allowance for general damages to include pain and suffering both past and future, loss of enjoyment of life, the residual disabilities and the loss of amenities. The amount of $25,000 was said to be wholly inadequate for this component of the claim. The sum of $25,000 was expressed to be for "pain and suffering that the injury has caused him and may cause him in the future and the loss of satisfaction in being able to pursue recreational interests and a career as a sand blaster", whereas it should have covered:
"(a)the appellant's inability to return to a career of doing any heavy manual work including sandblasting;
(b)a 5 per cent‑10 per cent permanent loss of efficient function of the thoraco‑lumbar spine and the impact of such a loss on all facets of his life – work, domestic, recreational and sporting;
(c)the fact that the appellant's L5‑S1 disc protrusion made him vulnerable in the future to further L5‑S1 problems."
It was contended on behalf of the appellant that the sum of $25,000 awarded for general damages for past pain and suffering; future pain and suffering; loss of satisfaction in being able to pursue recreational interests and a career as a sand blaster; and non‑pecuniary loss, including loss of enjoyment of life and loss of amenities, was inadequate. It was also submitted on behalf of the appellant that he already had intellectual and learning difficulties and had worked hard as a physical worker only to have this taken away from him by his accident‑caused disabilities.
It was contended that the awards under the above heads were not given sufficient weight in that his work, domestic, recreational and sporting activities had been adversely and heavily impacted because he had not been able to play sport since the accident, or pursue his hobbies of rifle shooting, motorbike riding and fishing. He had also not been able to visit nightclubs and attend parties. It was submitted that the permanent 5 per cent‑10 per cent disability of the thoraco‑lumbar spine was significant in the case of the appellant, to which had been added the non‑specific low back injury and the vulnerability associated with the L5/S1 central disc protrusion. It was also put that the ongoing low back pain was a problem which impacted on all facets of his life. Prior to the accident, the appellant had no back problems and was fully fit to do heavy work.
It was submitted that the assessment of $25,000 was too low and ought to be increased because the learned trial Judge underestimated the impact of such injuries upon a young man who was to carry the legacy of the accident for the rest of his life.
In my opinion, the award for general damages was appropriate in the context of the findings of fact made by the learned Judge. These were that while the appellant had ongoing lower back pain, it was not debilitating; the degree of residual disability in his thoraco‑lumbar spine was 5‑10 per cent at most; there were inconsistencies between the appellant's presentation and the clinical findings; and the appellant was given to embellishment when it suited him.
As the learned trial Judge commented at [114], the appellant's account of his symptoms varied from doctor to doctor. Whilst the appellant consistently complained of low back pain, several of the doctors noted that the symptoms were diffuse, when one would have expected a more localised pattern to exist. Most of the doctors were unable to identify any pathology for the symptoms and the learned trial Judge identified a significant number of inconsistencies in [114]. His Honour also noted in [115] that the appellant was not always frank in his evidence and gave a number of examples. As the learned Judge commented in [116]:
"Furthermore, the evidence suggests that from an early point in time the [appellant] was more concerned about not hurting his back than he was about improving his condition and getting better. He expressed this concern to Dr Ker in August 1996 and to Mr Brandis later that year. This concern seemingly has overshadowed every attempt by the doctors and rehabilitation trainers to get the [appellant] back to work. On his own evidence the [appellant] has now reached the stage where he cannot even sweep the kitchen floor. In the light of the objective medical evidence I do not accept that as being the case. The circumstances in which he lives with his family and his not being required to do anything at all unless he wishes to do so was described in the evidence of Dr Ker as being 'an abnormal presentation'. It is quite apparent that the [appellant] is living in a protected environment which of itself perpetuates his belief that he is not able to do anything. He is not an invalid. He seems, however, to lack motivation to either do anything for himself or to make any attempt at improving his circumstances. When he did engage in fitness and physical training regimes there was improvement in his physical well‑being. His lack of physical exercise in recent times is a significant factor in his present condition which both Professor Harper and Mr Marsden were agreed that he was physically deconditioned. The consensus of medical opinion is that there is no call for invasive treatment. Consistently the medical advice has been rehabilitation through exercise treatment programmes and intermittent physical therapy so as to maintain mobility and flexibility."
His Honour accepted that the appellant had had learning difficulties in reading and writing through his schooling years and that this was a factor which impacted upon his employability. He said, in that respect (at [117]):
"This aspect was noted by many of the doctors and it is accepted that by reason of this his fields of vocational employment are more restricted. He really is only suitable for manual work of the sort which he has undertaken since he left school. That factor must be taken into account in assessing his future options."
Then, his Honour made a number of findings, as follows, on the basis of the medical evidence (at [118]):
"1.The plaintiff suffered a soft tissue injury to the dorso lumbar spine, a non-specific low back sprain injury.
2.The plaintiff may have suffered a central disc protrusion from L5/S1 but that if he did it is only minor. Mr Ker referred to a disc abnormality, Mr Williams to a mild central disc bulging and Mr Gee to a small central disc protrusion. Mr Marsden was not convinced that there was a significant disc protrusion lesion. Both Mr Brash and Mr Schaeffer considered the disc was within anatomical limits.
3.From very early on in his treatment regime the plaintiff has been apprehensive about experiencing back pain. Mr Ker referred to 'undue apprehension' and Mr Brandis reported that the plaintiff expressed keenness to get back to work 'as long as nothing hurts my back'.
4.Motivation, or lack thereof, has been a significant factor in the plaintiff's presentation. Both Mr Mustac and Mr Schaeffer commented that motivation was a significant factor in determining the plaintiff's future. Lack of motivation in my view follows as a progression from the early apprehension which the plaintiff had as to his future.
5.The weight of medical evidence clearly is that there are inconsistent signs as between the plaintiff's presentation which are not supported by the clinical findings. See the evidence of Mr Ker, Mr Gee, Mr Brash, Dr Marsden and Mr Schaeffer.
6.No invasive measures for treatment have ever been considered necessary. From the outset the medical advice has been management through exercise, muscle strengthening, maintaining physical fitness and avoiding aggravating circumstances. Mr Gee notes marked improvement after the plaintiff undertook a 10 week physical training programme in 1998. Unfortunately, however, the plaintiff has not maintained any physical fitness regime and has on the evidence of Dr Marsden and Professor Harper become physically deconditioned.
7.The weight of medical evidence and a view consistently expressed by most doctors and which I accept is that the plaintiff is unfit to return to heavy manual labouring type work.
8.Again, the weight of medical opinion is that at the very least he can do full time light duties in occupations such as a storeman, console operator, process worker, or the like. The only qualification to that would be that those duties do not require a high level of numeracy or literacy that being as a consequence of the plaintiff's early learning difficulties. That is a factor which will undoubtedly impact on the range of employment in those areas which might be available to the plaintiff.
9.Again based on the weight of medical opinion I find that the plaintiff has been fit for full time light duties work since, at the latest, the end of 1998. Despite that, the plaintiff has done nothing, either in the way of work trials or looking for employment since then and on his evidence and that of his parents does nothing or at the most very little so far as domestic work in the home environment [is concerned].
10.I find that whilst the plaintiff may have ongoing lower back pain it is not so debilitating that he is unable to do anything. Nor do I accept his own assessment of his situation, that being that there is no job that he can do. As I have stated earlier I do not accept that he is an invalid. Apart from the extreme view of Professor Harper none of the medical evidence supports the plaintiff. The plaintiff's own assessment clearly reflects the apprehension and lack of motivation which the doctors have spoken about in their reports.
11.The range of loss of efficient function of the thoraco‑lumbar spine ranges from 20 per cent (Professor Harper and Mr Goodheart) to 10 per cent Mr Narula, 5 per cent Mr Marsden and nil Mr Brash and Mr Schaeffer. I find on balance that the range is between 5‑10 per cent at most.
12.I do not accept that the cervical/neck pain which the plaintiff complains of is a consequence of the work related injury. No pain in that area nor headaches were indicated until some two years after the event and which were initially indicated to Mr Williams."
The Damages Assessed
In assessing the damages which should be awarded to the appellant, the trial Judge accepted that, were it not for his injury, the appellant would have continued to work as a sandblaster and would have earned an award rate of $655.20 gross per week. He also accepted that, as a consequence of his injury, the appellant was no longer fit to work in that capacity, but said that the appellant was able to work as a service station console operator or as a storeperson, there having been evidence outlining the kind of duties performed in such occupations and of the availability of jobs of that kind. The median between the award rate for a service station console operator and the rate for a storeperson was a gross figure of $510 per week, rounded off. The trial Judge consequently used, as his measure, the difference between the two rates, after allowing for the deduction of income tax.
He said, in this respect (at [122]), that from 1 January 1999 to 2 August 1999 the appellant had received weekly payments of workers' compensation at the award rate for a sandblaster and thus had suffered no loss to that date. He calculated that, after that date and up to 30 November 2002 (three days before the delivery of judgment but some 15 months after the trial had concluded on 10 August 2001), the appellant had suffered a "past economic loss" of $16,905.45. He also awarded "past loss of superannuation" over that period amounting in all to $1318.78. He allowed interest on those figures at 2 per cent per annum amounting, respectively, to $1124.86 and $87.75.
He then turned to the issue of future economic loss. Because the plaintiff was then 32 years old (having been born on 12 November 1970), his Honour allowed for a future employment life of 33 years. Working upon the basis of a net weekly loss of $99.20 (the difference in the after‑tax rate as between a sandblaster's wage, on the one hand, and the median wage as between a service station console operator and a storeperson, on the other) for a period of 33 years, and using the multiplier of 765 derived from the 6 per cent table of multipliers comprising Table 2 to the Appendix of Luntz: Assessment of Damages for Personal Injury and Death, 4th ed, he arrived at a total of $75,888. That amount was reduced by 10 per cent for contingencies, leaving a total award for future economic loss of $68,299.
Then, for future loss of superannuation benefits, his Honour made an award of $6220.68.
Next, his Honour accepted that the appellant had required past gratuitous services for an average of two hours per week from 20 May 1996 to 31 December 1998 and allowed, in that respect, an amount, inclusive of interest, of $4233.17. However, the trial Judge said that he was not satisfied that any such services had since been required or would reasonably be required in the future.
He awarded a total of $1087.35 in respect of medical and pharmacy expenses and also an amount of $3000 in respect of future medical and allied expenses. He said, in this last respect, the following (at [128]):
"On the preferred medical evidence analgesics is as much as should be required for the future, gymnasium membership to get fit and keep in shape, the occasional doctor's visit and an allowance for travelling is, in all the circumstances, all that is warranted. A sum of $3,000 would be a generous allowance. For the reasons previously expressed I am not of opinion that consultations with psychiatrists, neurosurgeons or for regular physiotherapy or massage are warranted."
His Honour could see no reason why the appellant should be reimbursed an additional sum of $30,171.03 claimed by him, being the amount paid by the respondent's insurer by way of workers' compensation (the same insurer insured the respondent in respect of the common law claim). However, he said that, if there was substance to the appellant's claim for reimbursement of this sum, he would hear from counsel at the time when final orders were made.
Finally, his Honour awarded the appellant, by way of general damages for pain and suffering and for loss of satisfaction in being unable to pursue recreational interests and a career as a sandblaster, the sum of $25,000.
The total sum credited to the appellant, inclusive of income tax paid by him on his weekly payments of workers' compensation (an amount of $25,685.10), was consequently $152,962.14. However, because the provisions of s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) (to which I shall return below) precluded any award of common law damages, the award for future pecuniary loss not having exceeded the statutory threshold, the appellant's action was dismissed.
The Grounds of Appeal
The grounds of appeal are lengthy, repetitive and prolix. There are 16 of them. As they are more fully set out in the judgment of the Chief Justice, I need do no more than set out their effect. Ground 1 is merely a "catch‑all" contending that the total award of $152,962.14 was so low as to be unreasonable and unjust. Ground 2 challenges the allowances made for past and future loss of earning capacity and superannuation entitlements, interest on past loss of earning capacity and future medical expenses. Ground 3 challenges the adequacy of the award for general damages. Ground 4 challenges the adequacy of the award for past gratuitous services and interest. Ground 5 challenges the adequacy of the award for future paid services. Ground 6 is another "catch‑all" ground challenging the awards for past and future loss of earning capacity and superannuation and those for gratuitous paid services and interest and future treatment costs and medication. It also challenges the failure to make any award for past statutory allowances. Ground 7 challenges the finding of the trial Judge in respect of allowances for analgesics, gymnasium membership, visits to the doctor and travelling expenses. Ground 8 challenges the finding that no award was required in respect of future consultations with a psychiatrist or neurosurgeon or for physiotherapy treatment, massage treatment and antidepressant medication. Ground 9 challenges the rejection of the opinions expressed by Dr Booth and Professor Harper and what is described as the rejection of the evidence given by the appellant's parents. It also contends that too much weight was given to the evidence of Dr Mustac and Mr Schaeffer. Grounds 10, 11 and 12 challenge the trial Judge's findings in respect of the appellant's employability. Ground 13 contends that the trial Judge erred in failing to calculate the appellant's past economic loss from the date of the injury until the first day of trial and in failing to calculate the future economic loss from the first day of trial until age 65. Ground 14 is not pursued. Ground 15 challenges the trial Judge's findings in respect of the appellant's retained earning capacity. Ground 16 contends that the respondent failed to discharge what is said to have been its evidentiary burden of establishing the availability of work and opportunity for employment for the appellant and the rate payable for such work for a person such as the appellant, "with both physical and intellectual incapacities".
The respondent, by a notice of contention lodged on its behalf, contends that there was a body of evidence at the trial, not referred to by the trial Judge, which supported a finding that the appellant was able to undertake the occupations of storeperson, console operator and process worker.
Grounds 9, 10, 11, 12, 15 and 16 and the Notice of Contention
Because those grounds which challenge the trial Judge's findings in respect of the appellant's work capacity are central to the outcome of the appeal, it is convenient to deal with them together. They are grounds 9, 10, 11, 12, 15 and 16 and the notice of contention.
I propose, first, to deal with the trial Judge's findings as regards the extent of the appellant's residual physical disabilities.
The overwhelming preponderance of the evidence was that the back injuries sustained by the appellant were relatively minor. All that he had, as the trial Judge found, was a non‑specific low back sprain injury and a minor central disc protrusion at the L5/S1 level.
I have mentioned that Dr Offer's diagnosis, made shortly after the injuries were sustained, was one, only, of back strain. While subsequent scans showed the disc protrusion, the evidence was overwhelmingly to the effect that this was not serious. I have said that Mr Ker said that it was not causing any neurological compromise, Mr Williams described it as "mild", Mr Brash regarded it as a "normal anatomical bulge" and Mr Schaeffer regarded it as being within anatomical limits.
As to the muscle strain, I have mentioned that Dr Offer was surprised that it did not improve and that Mr Schaeffer considered that the appellant should have recovered from it within about six weeks.
As will also be apparent, most of the doctors considered that there was no physical explanation for many of the symptoms described by the appellant. Dr Offer said that they were not supported by objective clinical signs and were inconsistent with what he had seen in other back injury patients. Mr Ker said that the appellant had a "somewhat undue apprehension with respect to mobilising his back" and that his presentation was quite abnormal for a person with back pain due to a single level disc lesion. Mr Gee could make no clear physical diagnosis for the appellant's ongoing symptomatology and said that there was an inconsistency between the appellant's inability to return to employment and his clinical findings. Mr Brash considered that, from an anatomical point of view, the appellant was fit for the full activities of daily living. Dr Marsden said that there were "inconsistent signs" in the appellant's presentation and noted that the appellant had "become generally physically deconditioned". Mr Schaeffer said that the appellant presented with a very diffuse symptomatology which was not at all suggestive of a physical condition and considered that his presentation was based on non‑physical causes.
I have earlier mentioned that, as the trial Judge found, Professor Harper's more pessimistic diagnosis was based almost entirely on what he had been told by the appellant, rather than on objective factors. Given that fact, and given the overwhelming preponderance of evidence to the effect that the appellant's physical injuries were minor, it was undoubtedly open to the trial Judge to reject Professor Harper's opinion. Indeed, even Dr Goodheart's diagnosis of a 10 per cent cervical spine disability and a 20 per cent thoraco‑lumbar spine disability seems to be pessimistic in the light of the whole of the medical evidence. As I have mentioned, his diagnosis (as with that of Mr Narula, who indicated a guarded prognosis) was partially reliant on the subjective history provided by the appellant.
As to the evidence of the appellant's mental state, it will be apparent from what I have already said that there was a good deal of evidence to suggest that he took an unduly pessimistic view of his own condition. His fear of back pain, and his belief that he was unable to undertake a range of ordinary, quite modest, physical activities, had no basis in fact. The only physical limitation which could be drawn from the preponderance of the medical evidence was that he could not undertake strenuous physical activity or heavy work such as sandblasting or any task involving heavy lifting.
As I have earlier mentioned, there was a significant conflict in the evidence as regards the question whether or not the appellant suffered from depression and, if so, to what extent. I have said that Dr Booth considered that he suffered from a major depressive disorder, whereas Dr Mustac (who, as I have said, saw the appellant on three occasions over a period of some 27 months) consistently reported that there was no evidence of him suffering from any form of mental illness. Dr Febbo, too, found nothing to suggest the presence of a major depression or an anxiety disorder and considered that the residual depressive symptoms which the appellant had were a product of his physical symptoms, incapacity and concern over his circumstances. In my opinion, it was undoubtedly open to the trial Judge to reject the evidence of Dr Booth, having found that he was an unconvincing witness whose assessment was superficial and unsubstantiated when compared with that made by each of Dr Mustac and Dr Febbo. Moreover, given the preponderance of evidence to the effect that the appellant's concern about his physical condition had no basis in fact, it seems that such depressive symptoms as he had could not be brought home to his physical injuries.
That brings me to the question of the appellant's residual work capacity.
It seems to me to have been open to the trial Judge to find that the appellant was physically able to take on, full‑time, the occupations of a storeperson, console operator, process worker, or the like. That was the plain effect of the medical evidence accepted by his Honour. While it is true that the evidence of the appellant's parents, and to some extent that of Ms Lee, painted a different picture, that evidence was contradicted by the medical evidence and, perhaps not surprisingly, the appellant's parents and Ms Lee were influenced by the appellant's subjective description of his symptoms and by his own assessment of what he could, and could not, do. Also, so far as the appellant's depressive symptoms existed, there was nothing in the evidence of either of Dr Mustac or Dr Febbo which suggested that these rendered him unfit for full‑time work. Indeed, Dr Febbo thought that his mental state could still be improved upon and it was at least implicit in his evidence that a full‑time job would have assisted in that respect.
As to the appellant's so‑called "intellectual disability", the evidence in that respect was somewhat mixed. It might readily be accepted (with or without regard to the appellant's school reports) that the appellant had learning difficulties while at school. So much appears from the evidence of the appellant and from that of his parents. However, his father said that he was able to learn repetitive tasks once they were explained to him and that, having learned such a task, the appellant was "full of confidence". His mother, too, said that once the appellant obtained a job, his confidence increased. She said that he had a good memory and that he could read, albeit slowly. Mr Ker considered that the appellant was likely to succeed with job training if it involved a simplified series of tasks, such as bench or process work and Dr Marsden considered that he could work full‑time in occupations such as console operator or light storeperson, where he would be shown what tasks to perform and given a standardised set of procedures.
Perhaps the best evidence in this respect was that of Mr Brandis. As I have mentioned, he had tested the appellant. I have said that he concluded that, while the appellant was of below average "verbal" ability, he was of average "non‑verbal" ability, suggesting that the appellant was suited to practical, hands‑on level training courses. He specifically discussed with the appellant occupations such as that of a storeperson. In the course of his oral evidence, he agreed with Mr Ker's assessment that the appellant was likely to succeed with job training involving a simplified series of tasks such as bench or process work.
It should also not be overlooked, in this context, that the trial Judge had the opportunity of observing the appellant in the course of giving evidence over what appears to have been a period of some four hours.
In all of the circumstances, it seems to me that it was open to the trial Judge to arrive at the conclusion that the appellant was fit to undertake employment either as a service station console operator or as a storeperson. Moreover, the evidence of Professor Charles Mulvey, a consultant with an organisation known as Labournet, was to the effect that there were, on 27 June 2001, some 107 advertisements for console operators Australia‑wide, some of these offering more than one position and all of them advertising jobs at the award rate.
It follows, in my opinion, that it was open to the trial Judge to find, as he did, that, by the end of 1998, the appellant, even allowing for his learning difficulties, was fit to undertake employment and could have obtained employment as a service station console operator or storeperson, had he made a genuine effort to do so.
I have said that the appellant made no application for any such job, having concluded, from his unsuccessful work trials and as a result of his pessimistic view of his own abilities, that he was not fit for employment of that kind. As I have stressed, there was no basis in fact for that pessimistic outlook. I have mentioned, in this last respect, that the trial Judge found a number of inconsistencies in the evidence of the appellant and said that he was "given to embellishment where it suits him". His Honour also said that the appellant had not always been frank in his evidence. There is no basis for questioning his Honour's assessment in those respects.
It consequently follows that the challenges mounted to his Honour's assessment of the appellant's physical and mental capacities and to his retained earning capacity fail.
I should add, in this respect, that it is unnecessary to have regard to questions of evidentiary burden as, even if that burden rested with the respondent, it has, in my opinion, been discharged. The evidence shows, as his Honour found, that the appellant is still able to do work of the kind referred to and there was no dispute as to the general availability of work of that kind. There was also evidence of the rates of remuneration which such work would produce. (Cf, in these respects, Baird v Roberts [1977] 2 NSWLR 389; Thomas v O'Shea (1989) Aust Torts Rep 80‑251 and Bowen v Tutte (1990) Aust Torts Rep 81‑043.)
Ground 2
What has been said in respect of the grounds already dealt with covers all that has been raised in ground 2, save for the criticism that the trial Judge failed to make an adequate allowance for future medication, consultations and treatment. Because that issue is raised also by grounds 7 and 8, I will deal with it below, when considering those grounds.
Ground 3
In my opinion, the challenge to the award of general damages fails, given the trial Judge's findings (which, as I have said, were open to him) as regards the limited physical and mental disabilities suffered by the appellant as a result of his injuries. While the appellant has suffered some pain, his symptoms have been overstated and, as I have stressed, are largely unsubstantiated by any physical injury. Such social difficulties as he has seem, on the evidence, to be a product of his lack of motivation and his over‑assessment of his own level of disability rather than of any consequence of his injuries. It is, of course, true that the appellant is now unable to undertake heavy manual work and that he does, on the trial Judge's finding, have some loss of efficient function of the thoraco‑lumbar spine ("between 5‑10 per cent at most"). However, it seems to me that the award of $25,000 adequately compensates the appellant in these respects and also in respect of the limits which his injury has necessarily placed on his former pursuit of sporting activities.
Grounds 4 and 5
In my opinion, it was open to the trial Judge to reach the conclusions arrived at by him in respect of past and future services required by the appellant.
As is plain from what I have already said, the bulk of the services previously provided to the appellant by his parents and others appears to have been unnecessary. While the appellant did, no doubt, have some need for assistance during the initial period of his injury, I have said that there was medical evidence to the effect that the strain injury should have cleared up in about six weeks and the preponderance of the evidence was to the effect that the appellant has since been able to undertake the ordinary range of household duties, so long as no heavy lifting is required. It is significant, in this respect, that the appellant was able to live on his own for a period in excess of a year, albeit he did (at least in his own mind) require assistance with some tasks during that time.
Given the medical evidence to which I have referred, and the findings in respect of it made by the trial Judge, it seems to me that the allowance for past gratuitous services was adequate and that the trial Judge rightly found that no allowance was reasonably required in respect of future services.
Ground 6
I have mentioned that ground 6 is, essentially, another "catch‑all". However, it does encompass a challenge to the trial Judge's failure to award any amount for past statutory allowances. While, strictly, the trial Judge should have awarded to the appellant the amount of the workers' compensation paid to him in order that he might reimburse that sum to the insurer, the point was effectively academic given, as I have said, that the same insurer has insured the respondent in respect of the common law claim. It also becomes academic in circumstances in which the challenge to the award for future pecuniary loss fails (a matter to which I shall return below).
Grounds 7 and 8
As to grounds 7 and 8, it seems to me that, given the trial Judge's findings on the medical evidence, there is no substance to the contention that no adequate allowance was made for future medical, pharmaceutical and allied expenses, or for gymnasium and travelling expenses.
It was open to his Honour to find that analgesics were as much as should be required by the appellant in the future, that only an occasional doctor's visit would be required. While his Honour seemingly made some allowance in respect of the cost of gymnasium membership, this was, in the circumstances, generous.
On the evidence accepted by his Honour what was really needed was a change in attitude on the part of the appellant who could, if he chose to do so, get fit in any number of ways and who did not, on the evidence, have any physical condition requiring ongoing monitoring by doctors within the reasonable future. In addition, so far as travel is concerned, it seems to me that no allowance was required.
In all of these circumstances the trial Judge rightly described the allowance of $3000 made by him as generous.
Ground 13
That leaves only ground 13, which challenges the approach taken by the trial Judge in distinguishing between past and future economic loss. I have mentioned that he selected, as the cut‑off date for past economic loss, 30 November 2002, some three days before the delivery of judgment but many months after the conclusion of the trial.
Under s 93D(1) of the Workers' Compensation and Rehabilitation Act 1981 as it then stood, damages could only be awarded to a worker at common law if the disability in question resulted in the death of the worker or if it was a "serious" disability. Under s 93D(2) a disability was a serious disability if, and only if, it was assessed, in the manner prescribed in s 93D(3), as having a degree of 30 per cent or more or if the future pecuniary loss resulting from the disability was of an amount that was at least equal to the prescribed amount. In this case it was not established (or even contended) that the degree of disability was 30 per cent or more. Consequently, the question whether or not the disability was a serious disability, and hence whether or not damages could be awarded at common law, depended upon the question whether or not the future pecuniary loss resulting from the disability was at least equal to the prescribed amount, being, at the date of trial, an amount of $126,145 and, at the date of judgment, an amount of $130,609.
Under s 93A of the Act as it then stood "future pecuniary loss" was defined to mean "pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court".
Counsel for the appellant contended that the time when the amount of the loss is required to be determined by a court is the first day of trial. Counsel for the respondent, on the other hand, contended that it was on the date of judgment. The only authorities referred to by either counsel in this respect were the judgment of the High Court in O'Brien v McKean (1968) 118 CLR 540 and an unreported decision of this Court, Eltin Ltd v Dowsett [2001] WASCA 101.
The first of those cases turned upon rather different circumstances and did not involve a consideration of any similar statutory prescription. It is consequently of no assistance. As to the second of them, that of Eltin Ltd v Dowsett, it seems there to have been conceded that "the prescribed amount" for the purposes of the then s 93D(2)(b) was the amount prescribed as at the date of judgment, from which it might be inferred (if that concession was rightly made) that that is the date when the amount of the future pecuniary loss "is required to be determined".
While it is, for reasons which I will explain, unnecessary to decide the point in this case, I would have thought that there is something to be said for the notion that the words "when the amount of that loss is required to be determined by a court", in the definition of "future pecuniary loss", have the effect that the determination is required to be made at the conclusion of evidence in the trial, in this case being 10 August 2001. That seems to me (albeit the matter has not been argued fully) to follow from the ordinary meaning of the words used. The Court cannot determine the amount of the pecuniary loss until all of the evidence bearing upon it has been heard but, once the evidence is in, the Court is, of course, then required to make a determination in respect of it. If that is so, "the prescribed amount" for the purposes of s 93D(2)(b)
should be that at the date of the conclusion of evidence in the trial and not that at the date of judgment. Had the legislature intended otherwise, it would have been a simple matter for it to have said so.
However, given the conclusions at which I have arrived in respect of the other grounds, this rather tentative conclusion can have no consequence as regards the outcome of the appeal. If the starting point of 10 August 2001 was adopted for the assessment of future economic loss, and if the 35‑year multiplier was consequently to be adopted instead of the 33‑year multiplier used by the trial Judge, this would, using the figures adopted by the trial Judge, give rise to a total future economic loss of $99.20 x 779 (the 35‑year multiplier on the 6 per cent table), which equals $77,276.80. After allowing for the contingency of 10 per cent allowed by the trial Judge, this gives rise to a total future economic loss of $69,549. That amount, even when added to an increased loss of future superannuation benefits and to other items of future pecuniary loss, falls substantially short of the prescribed amount.
It necessarily follows that the then s 93D of the Act precluded the award of any common law damages in this case, whichever of the starting points for the estimation of future pecuniary loss was adopted, and that the appellant's action was rightly dismissed.
It follows that the appeal should be dismissed.
JENKINS J: I have had the advantage of reading, in draft, the reasons to be published by Malcolm CJ and Steytler J. I agree that for the reasons given by Steytler J, except in respect to the issue raised by ground 13 of the grounds of appeal; namely the appropriate time for the assessment of future pecuniary loss, the appeal should be dismissed. The following are my reasons with respect to that issue. My reasons do not affect the ultimate result of the appeal.
In O'Brien v McKean (1968) 118 CLR 540 at 545 Barwick CJ said:
"In the case of such personal injuries, though there may be something to be said logically for making the assessment of damages as at the date of the receipt of the injuries, the date of the verdict is, in my opinion, the proper date as at which to make the assessment. It may be that delay on the part of the injured person in bringing or prosecuting his claim could on this basis in some circumstances advantage the plaintiff, though, except in the case of some dramatic change in purchasing power, this possible advantage would be minimal and largely
theoretical. However, even if in some case it became necessary to prevent a plaintiff obtaining a substantial advantage by his own dilatory conduct, the date as at which to make the assessment would not, in my opinion, be the date of the injuries but some later date, probably related to the time as at which a diligent plaintiff would have brought his proceedings to a verdict."
In the same case, at 554 – 555, Windeyer J said that damages fell to be assessed at the date of the hearing. The other three Justices did not express a view on this issue.
In Johnson v Perez (1988) 166 CLR 351 at 355 – 356, Mason CJ said that there is a general rule that damages for torts are assessed when the cause of action arises, but that this rule gives way in relation to the assessment of damages for personal injury in that, in accordance with the dicta of Barwick CJ in O'Brien, the date of the verdict is the proper date for assessment of damages. Mason CJ said that by choosing this date courts have insulated plaintiffs from inflation and thus it is the date that is "best adapted to giving an injured plaintiff the amount in damages which will most fairly compensate him for the wrong he has suffered".
After discussing appropriate dates for assessing damages in other causes of action, the Chief Justice said at 360:
"As the cases to which I have referred reveal, the principles governing the assessment of damages do not permit the application of rigid rules based on categories of actions. Instead, the injured party's intentions and the surrounding circumstances must be considered in light of the underlying principles in order to do justice between the parties."
In the same case at 371, Brennan J said, citations omitted:
"The general rule as to the date at which damages are to be assessed is subject to the principle governing the measure of damages. A plaintiff who has suffered damage as a result of a defendant's tort or breach of contract is entitled to such a sum as will, so far as possible, put him in the same position as he would have been in but for the tort or breach of contract: Wenham v. Ella; Todorovic v. Waller; Livingstone v. Rawyards Coal Co. The time at which damages are assessed must be so fixed as to give effect to the governing principle. In giving effect to that principle, matters occurring after the tort or breach may be excluded from consideration by selecting the date of the tort or breach of contract as the date for assessment; conversely, such matters may be included by selecting the date of the trial as the date for assessment. In either case, it is the governing principle rather than the temporal rule which determines what is to be taken into consideration and what is not."
Wilson, Toohey and Gaudron JJ expressed similar views, at 367, where they said:
"As a general rule, 'damages for tort or for breach of contract are assessed as at the date of the breach' (Lord Wilberforce in Miliangos v. Frank (Textiles) Ltd. (49)). The rule will yield if, in the particular circumstances, some other date is necessary to provide adequate compensation …"
Deane J, at 381, said that in personal injuries cases the general rule was that damages for personal injuries were assessed at the time of verdict. Dawson J, at 386, doubted that there was any longer a rule that damages are assessed as at the date of breach but that if there was it did not offer a certain guide in all cases. His Honour said, at 388, that the "most clearly established departure" from any such rule is in personal injury and fatal accident cases "where damages are measured at the date of trial or, more accurately, the date of judgment".
Thus in personal injury cases the general rule is that damages, including damages for future pecuniary loss, are assessed as at the date of verdict. In earlier times the date of verdict would have more than likely been the concluding day of the trial. However, I see no reason why, in light of modern day practice of trial by Judge alone, it should not be regarded as being the date of judgment, as Dawson J indicated.
This general rule must give way to the overriding principle that the purpose of an award of damages is to fairly compensate the plaintiff for the wrong he or she has suffered. If the choice of another date of assessment will better do that then it is within the discretion of the trial Judge to use it.
In my opinion, the above principles are relevant to the then Workers' Compensation and Rehabilitation Act, 1981, s 93A and s 93D. As has been explained fully by Steytler J in his reasons, the then statutory regime was that damages for the disability of a worker caused by the tort of his or her employer could only be awarded if the disability resulted in death or serious disability. A serious disability was, relevantly, defined to include where "the future pecuniary loss resulting from the disability is an amount that is at least equal to the prescribed amount". Section 93A defined "future pecuniary loss" to mean "pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court".
Whilst the cases which I have discussed did not consider any similar statutory provisions, I conclude that the then definition of "future pecuniary loss" was referring to the time when, under the general law, the amount of pecuniary loss is required to be determined by a court. That time would be when damages were assessed as a whole. His Honour was not in error in assessing the appellant's future pecuniary loss as at the date of judgment.
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