Seage v State of New South Wales - [2008] NSWCA 328

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Seage v State of New South Wales [2008] NSWCA 328

FILE NUMBER(S):
40091/08

HEARING DATE(S):
14 November 2008

JUDGMENT DATE:
5 December 2008

PARTIES:
Dennis Seage (Appellant)
State of New South Wales (Respondent)

JUDGMENT OF:
Tobias JA Macfarlan JA James J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4448/06

LOWER COURT JUDICIAL OFFICER:
Gibson DCJ

LOWER COURT DATE OF DECISION:
28 March 2008

COUNSEL:
H N KellySC/T F McKenzie (Appellant)
P W TaylorSC/G Giagios (Respondent)

SOLICITORS:
Taylor & Scott (Appellant)
Hicksons (Respondent)

CATCHWORDS:
TORTS - negligence - police detective sergeant injured back whilst moving desk in police station - commonplace activity not forming part of employee's regular duties - no breach of duty by employer

LEGISLATION CITED:
Civil Liability Act 2002
Occupational Health and Safety Act 2000

CATEGORY:
Principal judgment

CASES CITED:
Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301
Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 838
Electric Power Transmission Pty Limited v Cuilui [1961] HCA 3; (1961) 104 CLR 177
Flounders v Millar [2007] NSWCA 238
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
New South Wales v Fahy [2007 HCA 20; (2007) 232 CLR 486
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Phillis v Daly (1988) 15 NSWLR 75
RTA (NSW) v Dederer [2007] HCA 42; (2007) 81 ALJR 1773
Smith v Broken Hill Proprietary Co Ltd [1957] HCA 34; (1957) 97 CLR 337
State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463
Wyong Shire Council v Shirt [1980] HCA 12; (1979-90) 146 CLR 40

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40091/08
DC 4448/06
TOBIAS JA
MACFARLAN JA
JAMES J
FRIDAY 5 DECEMBER 2008

SEAGE v STATE OF NEW SOUTH WALES

Judgment

TOBIAS JA: I agree with Macfarlan JA.
MACFARLAN JA: On 22 September 2003, the appellant injured his back whilst attempting to lift a heavy desk in the Detectives’ Room at the Wollongong Police Station. At the time, the appellant was a detective sergeant in the Police Service. The injury led to his medical discharge from the Police Service on 2 September 2005. In proceedings commenced in the District Court against his employer, he claimed damages alleging that his injury was caused by breaches of a common law duty of care owed by the employer to him. Following a hearing before J C Gibson DCJ, her Honour ordered that judgment be entered for the respondent. The appellant now appeals against that decision.
Factual Background
The appellant joined the New South Wales Police Service in 1987 when he was aged 33. He became a detective in 1990 and a detective sergeant in 2002. He worked throughout his service in the Wollongong area.
In September 2003, the commander of the Wollongong Police Station was Mr John Trott, a superintendent. His second in charge was, on a relieving basis, Mr Michael Robinson whose position was crime manager. Below him were a number of inspectors and below them sergeants and detective sergeants and then constables.
The appellant reported to the crime manager and to Mr Trott.
Prior to September 2003, there was a significant increase in detectives at the Wollongong Police Station, from 16 to 27. The appellant was asked to relieve in the position of detective senior sergeant, a position which was known as the investigations manager. In that position, he had the 27 detectives under his control. He was concerned that the Detectives’ Room at the police station was not big enough to house the increased number of detectives.
After some general discussions with others at the Police Station, the appellant suggested to Mr Trott that a “strike force room” be created. The appellant’s evidence was that he said to Mr Trott “that the two interview rooms in the general detectives’ office, if the wall dividing the two rooms were to be knocked down, then that would suffice as a strike force room” (Black Appeal Book 17F). Mr Trott agreed with the suggestion.
The appellant had a later discussion with Mr Trott just before the appellant commenced a period of leave. He said to Mr Trott: “I’ve spoken to the troops and they have agreed to embrace the idea, and the strike force room will be up and running by the time I get back from annual leave”. Mr Trott said words to the effect “make it happen” or “do it”. (Black Appeal Book 175).
The appellant gave evidence that at about this time he said to the senior detectives in the office, “it’s your strike force room. Set it up the way you see fit, but I would suggest that we get whiteboards around all of the walls, whatever walls we can put them on. That’s been okayed, and Garry Roberts is happy to help with anything like that”. He also said to them “Get everything out of the room. It’s got to be cleared, and we’ll see about putting benches around, as opposed to tables, that aren’t as wide” (Black Appeal Book 17V). The evidence was that Mr Roberts was the station manager and also the station occupational health and safety officer.
When the appellant returned from leave, he found the room unchanged except that the wall had been removed and had “been replaced by a room divider”. He was very disappointed. Remaining in the room was a desk which he then proceeded to move, with resultant injury to his back.
The desk can be seen from photographs which were in evidence to have been a substantial desk made wholly or partly out of metal. Its appearance suggests that it would be heavy, as in fact it was. The evidence indicated that it weighed about 100 kilograms.
When asked what happened when he saw the desk still in position, the appellant said:
“Well, I moved it. It had to be done that day. I gave an undertaking that it would be operational when I returned from leave and it wasn’t” (Black Appeal Book 25X).
When asked what he did, he said:
“Grabbed hold of the desk. It was such that it was obviously the first thing to get rid of. It was the biggest object there and bulky. It took up too much room. So I grabbed hold of the desk and started – lifted it and started to pull it out, and that’s when I felt the pain in my back, but I didn’t realise what I’d done. I’d no idea the damage I’d caused” (Black Appeal Book 26C).
When he moved the desk, a Mr Bridge, a detective sergeant at the station, was standing “right next to it”. After the injury was suffered, Mr Bridge was requested to, and did, assist the appellant to move the desk.
The appellant said that he had not thought about the weight of the desk before attempting to move it. In his evidence, he estimated the weight of the desk at about 100 kilograms. This was about the weight that he said he used to weight-lift in the gym.
The Primary Judge’s Findings
The primary judge made findings to the following effect:
“The evidence shows that no directions were given to the plaintiff by Mr Trott, or indeed by anyone else, that he should move the desk or any other piece of equipment, either during the time that the project was under discussion or on the day of the accident. Nor did Mr Trott say anything that indicated he had any such expectation. The plaintiff acted entirely of his own volition, in a state of upset for reasons made clear in his duty book (which is discussed further below). His duty book, and statements to his general practitioner, confirm that he was moving other equipment as well, including a computer printer which looks, from the material before me, to have been quite large”. (Red Appeal Book 77E).
…
“The real explanation for the plaintiff moving the desk lies in what the plaintiff wrote in his duty book on the day of the accident, which is that on his return from leave he found the new strike force room in what he called a ‘disgusting’ state. I find that he wrote ‘disgusting’ because he was angry that the table was in the strike force room, not because the room was not up and running as a task force room in accordance with his wishes” (Red Appeal Book 81X).
Her Honour said that she was satisfied that “reorganising the strike force office falls within the scope of the plaintiff’s duties as a police officer” and that “in practical terms, that means there is a duty of care extending to the situation the subject of this litigation” (Red Appeal Book 78K). However, her Honour did not suggest that the movement of furniture was in any sense part of the regular activities within the station. In this context, she said that there was “no evidence of a system of work requiring the plaintiff, or anyone else to move furniture at a police station” (Red Appeal Book 76S).
Ultimately her Honour found that “it was never foreseeable that the plaintiff, who had never mentioned the desk to Mr Trott or his colleagues, would become so irate to find it still there that he would attempt to remove it himself without warning or requesting assistance. Accordingly the defendant is not negligent for failing to take precautions against a risk of harm because it was not foreseeable and because a reasonable person in the defendant’s position would not have taken those precautions (Red Appeal Book 84T).
Her Honour derived assistance from Smith v Broken Hill Proprietary Co Limited [1957] HCA 34; (1957) 97 CLR 337 and said that “(a)s was the case in Smith, the task of moving furniture would not involve any real risk of injury if carried out ‘in a reasonably sensible and careful manner’ (at 343), namely the way he had told his men to go about it, in consultation with the occupational health and safety officer, Mr Roberts. The plaintiff knew the desk was ‘very cumbersome’, to use his own words. To impose a requirement that there be a risk assessment every time a desk is moved in an office is a requirement in excess of the obligations of an employer (or a person with an analogous duty), for the reasons explained by Taylor J.” (in Smith’s Case) (Red Appeal Book 82K).
The primary judge accordingly dismissed the appellant’s claim.
I should add reference to two factual findings of her Honour which were the subject of challenge on the appeal. Whilst I consider the criticisms of the findings to be well-founded, they do not appear to me to have played a crucial role in her Honour’s conclusions to which I have referred above. In any event, the findings which are ones favourable to the respondent, have been disregarded, in my consideration below of the correctness of her Honour’s conclusions.
The first of these findings was one that the appellant “told his men to consult the occupational health and safety officer when asking them to move the furniture” (Red Appeal Book 79I-J). An examination of the evidence upon which this finding was based indicates that the appellant’s reference to consultation with the occupational health and safety officer was confined to setting up of whiteboards (Black Appeal Book 17V and 57V). That evidence is not without an element of ambiguity but I consider that the better view of it is as I have indicated.
Secondly, her Honour found that “given the plaintiff’s duties must have involved some computer knowledge, his claim that he never read his sergeant’s manual because he could not use a CD-Rom is implausible” (Red Appeal Book 77C). This view led her Honour to find that it was a matter of choice rather than inability that resulted in the appellant not reading the sergeant’s manual and to find that the respondent “did provide information of an occupational health and safety nature” to the appellant (Red Appeal Book 84J). Whether the evidence warranted her Honour’s conclusion as to why the manual was not read need not be examined as even if there was a basis for concluding that the manual contained information concerning safety there was nothing in the evidence which indicated that it said anything pertinent to the lifting of heavy objects.
Duty of Care and Breach
The duty of care owed by an employer to an employee was described by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 838 in the following terms:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work” (at [12], citations omitted).
Whether there was, in the words of this passage, a “real risk of an injury” needs to be considered in the present case in light of the provisions of s 5B(1) of the Civil Liability Act 2002 which is in the following terms:
“(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.” (emphasis added)
The decision of this Court in State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463 dealt with the applicability of the Civil Liability Act in a negligence action brought by a detective chief inspector of police against his employer. In that case the Court noted the concession of the police officer that the application of the Civil Liability Act to the proceedings was not excluded by s 3B(1)(f) of that Act. That sub-section provides that the Act does not apply to “civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies …”. It was conceded that the police officer in that case did not fall within the definition of a worker under the Workers’ Compensation Act, as it is only police officers who joined the New South Wales Police Service after 1 April 1988 who fall within that definition and he joined the Service before that date. The position is the same in relation to the present proceedings as the appellant joined the New South Wales Police Service prior to 1 April 1988.
In accordance with Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40, it is necessary in deciding whether there has been a breach of a duty of care to first ask “whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk” (at 48).
In the context of the liability of employers to their employees, it is necessary to bear in mind that the standard of care is “not a low one” (308) (Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308) and that the “standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others” (Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78 at 90 quoting McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-12).
Leaving aside for the present the particular circumstances that gave rise to the injury in question in these proceedings, my view is that the risk of the appellant (or one of the other senior members of the police force at the Wollongong Police Station) undertaking by himself the removal from one place to another of a heavy desk and thereby injuring himself was not one which met “the not insignificant” risk test.
Important in this context is the fact that the appellant was in a senior supervisory position having some 27 detectives under his control. It was not part of ordinary policing duties for desks or other furniture to be moved around the work premises although no doubt there was always, as there would in any workplace, be the possibility that that would occur. It could not in my view be concluded that the appellant’s employer should have reasonably foreseen a not insignificant risk of the appellant (or other member of the police force of his seniority) taking upon himself, particularly without assistance from any others, the performance of the relatively menial task of moving an obviously heavy desk. The presence at the police station of a large number of detectives (quite apart from other ranks) would have emphasised the unlikelihood of the appellant doing this. It seems only to have been a fit of anger which led the appellant to do what he did.
Even if (contrary to my view) a reasonable person in the employer’s position would have assessed the risk as a “not insignificant” one, the reasonable person would not in my view have taken any steps to attempt to reduce or eliminate that risk. That is, the reasonable person would at least have assessed the probability of occurrence as “very low” (see RTA (NSW) v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 at [61)] and would not have taken any action “by way of response to the risk” (Wyong Shire Council Ibid at 47; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at [57-8, 125]).
As pointed out earlier, the conduct in question was not of a type peculiarly related to policing duties. On the contrary, being the moving of furniture, it was a commonplace activity likely to be encountered, just as frequently, if not more frequently, in the course of ordinary domestic life than in the workplace.
It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Cf Phillis v Daly (1988) 15 NSWLR 65 at 74B-C; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 177 [24].
A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee’s regular duties or activities to perform it, in my view falls into the same category.
This approach derives support from the decision, relied upon by the primary judge, in Smith v Broken Hill Proprietary Co Ltd [1957] HCA 34; (1957) 97 CLR 337.
In affirming the dismissal of the worker’s claim in that case against his employer, Taylor J (whose approach to the case was concurred in by three other members of the Court) said that the task there assigned to the plaintiff and his co-worker:
“… did not involve any real risk of injury even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness; the accident occurred because of the quite extraordinary and unnecessary method in which the two employees proceeded to carry out a perfectly simple task” (at 344).
To similar effect is the statement of the Court in O’Connor v Commissioner for Government Transport (1958) 100 CLR 225 that:
“It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job” (at 230).

In Electric Power Transmission Pty Limited v Cuilui [1961] HCA 3; (1961) 104 CLR 177, the plaintiff was required to cut up pieces of timber for use in a fuel stove. He suffered injury when using a tomahawk to perform the task. Kitto J (with whom three other members of the Court agreed) said that:
“When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so” (at 180-1); see also Glass, McHugh and Douglas, Liability of Employers, 2nd ed (1979) Law Book Co at 44-5.
It was said by three members of the Court in the Bankstown Foundry Case ibid at 309 that “what is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer”.
Whilst it is possible to discern a trend since cases such as Smith, O’Connor and Electric Power were decided towards a more stringent standard applicable to employers and whilst statutory changes such as the enactment of the Occupational Health and Safety Act 2000 have occurred, the applicable tests continue to require a focus on how a reasonable person would assess the risk of injury to the plaintiff (or a class to which the plaintiff belongs) and would respond to any risk so identified. Notwithstanding these changes, I consider that the reasonable employer’s position in 2003, when the accident occurred, would have been as I have described earlier. In particular, I do not consider that Regulations 80 and 81 of the Occupational Health and Safety Regulation 2001 assist the appellant in the manner for which he contended. The appellant submitted that they here required a risk assessment to be undertaken and that that did not occur. Although there was no claim for breach of statutory duty, breach of the Regulations was contended to be evidence of negligence on the part of the employer. I do not agree that a risk assessment was required, as the source of such a requirement would have had to be found, if at all, in Regulations 9 and 10. These Regulations however only come into play if an employer, taking reasonable care, identifies a “foreseeable hazard”. For reasons already given, I do not consider that such a hazard existed in the present case.
It is necessary then to turn to the particular circumstances of this case to see whether the events which occurred would have affected the reasonable employer’s assessment or response.
It is important in this regard that the effect of her Honour’s findings was that the appellant’s superior Mr Trott had had no reason to expect, or indeed suspect, that the appellant would himself be engaged in moving furniture and in particular be so engaged without the assistance of any of the 27 subordinate detectives who were to use the room. The conversation which the appellant says that he had with Mr Trott pointed in the opposite direction. The appellant led Mr Trott to believe (no doubt consistently with the appellant’s own belief) that the work would be done whilst the appellant was on annual leave. The appellant said nothing to suggest that, acting alone or at all, he would move furniture such as the desk out of the room in question if that had not occurred whilst he was on leave, and such could not have reasonably been anticipated by Mr Trott. In these circumstances, I do not consider that there is anything in the particular circumstances of this case to necessitate a warning being given or other precautions being taken.
For the reasons above, I consider that her Honour was correct to give judgment for the defendant.
In light of this conclusion, various other issues the subject of the appellant’s appeal do not arise. I however set out my views on those issues as follows:
Contributory Negligence
Against the possibility that she erred in finding that there had been no breach by the respondent of a duty of care owed to the appellant, her Honour considered and accepted the respondent’s submission that contributory negligence of the appellant should be assessed as 70% responsible for the appellant’s injury.
I agree with her Honour’s conclusion that the appellant was guilty of contributory negligence. Her Honour inferentially accepted the respondent’s submissions that the appellant “went at the task like a bull at a gate, when he could have consulted his superiors, or the occupational health and safety officers, or asked for help” (Red Appeal Book 85P). As her Honour said, the appellant “was tidying a room he considered disgusting and in a state of anger he moved a large heavy desk without warning” (Red Appeal Book 84G). He did this whilst a colleague was standing right next to him and only asked the colleague to assist once he had injured himself. The appellant’s conduct went beyond “mere inadvertence, inattention or misjudgement” to “negligence rendering him responsible in part for the damage” (Bankstown Foundry Pty Limited ibid at 310). Her Honour’s assessment of contributory negligence at 70% was in my view open to her.
Damages
Her Honour’s conclusions as to damages (which were expressed to guard against the possibility that she was wrong on the issue of liability) were challenged in limited respects only on the appeal. My views on the matters raised are as follows:
Non-Economic Loss
Her Honour assessed the severity of the appellant’s non-economic loss for the purposes of s 16 of the Civil Liability Act 2002 as 25% of a most extreme case. This involved an acceptance of the respondent’s submission as to the appropriate percentage and a rejection of the appellant’s submission that 33% was the appropriate percentage (Red Appeal Book 87B).
The appellant asserted that the percentage adopted by her Honour was outside the range reasonably available to her because the appellant’s condition here was permanent, with it being likely that he would experience pain for the rest of his life. He also complained that her Honour had described the appellant’s post-injury restrictions as “comparatively minor” (Red Appeal Book 87D).
However, it is apparent from the fact that her Honour adopted 25% as the appropriate percentage that her Honour did not treat the appellant’s post-injury restrictions as minor in an absolute sense. Her assessment of 25% reflects a conclusion that significant restrictions existed and were likely to continue. Her Honour’s use of the expression “comparatively minor” indicates that she regarded the appellant’s injury as far less severe than a most extreme case. This was appropriate.
Bearing in mind the evidence that was before her Honour as to the level of the appellant’s pain and the extent of restrictions on his activities, I do not regard the percentage adopted by her Honour as outside the range available to her.
Economic Loss
When calculating past wage loss, her Honour deducted the sum of $500.00 per week from the agreed wage loss figure to represent retained earning capacity. The appellant conceded that this was appropriate in her Honour’s calculation of future earning capacity and did not provide any persuasive reason as to why her Honour was incorrect in making the same deduction in respect of wage loss to the date of the hearing.
Another issue arose as to the appropriate percentage to be used in calculating loss of superannuation entitlements. After discussion this was agreed by both parties to be 9% of the gross wage loss. This was the percentage used by her Honour.
The next issue which arose was whether her Honour was correct in calculating future economic loss upon the assumption that the appellant would, but for his injury, have retired from the police force at the age of 55.
The appellant’s evidence was that his intention had been not to retire until he was 65 and that he probably would have sought promotion to inspector later in 2003 if the accident had not occurred (Black Appeal Book 45Q-U, 46-Y).
His evidence as to his promotion prospects was strongly supported by evidence from Detective Inspector East and by a number of written commendations which were in evidence.
However, her Honour did not accept the appellant’s evidence that he would have remained in the Police Service past the age of 55 years. She gave as her reasons:
“He did not present as a police officer who was passionate about policing; if anything his comments about his sergeant’s course and his lack of knowledge of computers would indicate to the contrary” (Red Appeal Book 88F).
The Court was taken to the evidence which the respondent contended supported these reasons of her Honour. I do not consider that that evidence in fact provided a basis for rejecting the appellant’s evidence. Certainly, the appellant’s comments about the sergeant’s course were capable of indicating some arrogance on his part. However his evidence that he didn’t learn anything that he didn’t already know during the sergeant’s course and that the CD he was given at the end of the course was not thought by him to have any educative value (Black Appeal Book 73Q-W) cannot reasonably be regarded as supporting the view that he was not “passionate about policing”. Similarly, his evidence concerning his knowledge of computers was not capable of supporting the conclusion that he was not “passionate about policing”. He said that he was “semi-literate as far as computers went at that time. I wouldn’t have known how to read it” (referring to the CD) (Black Appeal Book 108Y-109C).
The respondent relied in argument upon a calculation it did for the purposes of the appeal of the monetary benefit the appellant would have derived from staying in the police force after the age of 55. It said that this benefit was so limited that it could be inferred that the appellant would not have stayed in the police force after 55, as he said he would have. I do not think that this argument can be sustained in circumstances where the relevant proposition was not put to the appellant in cross-examination even though he had given in cross-examination the explanation that he would have retired at 65 because his pension prior to that time would not have been enough for him “to survive” (Black Appeal Book 94 M-P).
As a result, the calculation of the appellant’s future economic loss should be approached upon the basis that he intended to continue with the police service until he was 65. However, a substantial discount for vicissitudes should be made. In light of the evidence before her Honour that, on average, retirement from the police force occurred very much earlier than 65, my view is that the appropriate discount would be 30%.
The final issue as to economic loss related to the appellant’s claim that an allowance should be made for the prospect of him obtaining an increased salary as a result of promotion to inspector.
This was framed as a claim for an additional lump sum of $50,000 for loss of opportunity. Her Honour rejected it and said:
“If the plaintiff retired at 55 he would have then been in a position to obtain some part time work of the kind that his doctors say he can do. This is a man at the end of his working life, looking at the lifestyle and work habits of a partially retired person. In my view it is not appropriate to add an additional lump sum for loss of opportunity” (Red Appeal Book 88M).
The foundation for these views is the conclusion that the appellant would have retired at age 55. Once the likelihood of him continuing in employment until 65 is accepted, the need arises to consider the prospect of his promotion. The evidence referred to above from Detective Inspector East and the written commendations pointed towards a significant prospect of promotion in the event that the appellant continued in the police service. In my opinion an award of an additional lump sum of $50,000 to compensate for the loss of the opportunity to obtain increased income through promotion was appropriate.
Causation
The question of whether, if it were found that the respondent should reasonably have taken any steps to reduce or eliminate the prospect of the appellant being injured, the failure to take those steps was causative of the appellant’s injury was not dealt with by her Honour. It was raised on appeal by the respondent in relation to the contention that the respondent should have carried out a risk assessment and it was the subject of significant discussion during the hearing of the appeal.
The question is clearly one that would need to be addressed in the event that the appellant proved a breach of duty. Much would turn in the present case upon the primary judge’s assessment of the appellant’s personality and likely response to the relevant steps if they had been taken (see Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [26-28]). For example, would the appellant’s anger and disgust have caused him to disregard any warning that he might have received? Would the appellant have adopted one of the other alternatives (for example, hiring a professional removalist, using a trolley designed for furniture handling or use of a trained team of four men: Blue Appeal Book 98H-L) which the appellant’s evidence suggested should have been available? In hearing the appellant give his evidence, the primary judge would have had an undoubted advantage in respect of this issue over this Court which of necessity has to proceed on the basis of the written transcript. As a result, if the appellant had otherwise succeeded on liability, my view is that the issue of causation would have needed to be remitted to her Honour for consideration.
I should add that the appellant submitted that an evidentiary onus in relation to causation lay upon the respondent and that that evidentiary onus had not been discharged.
There is a full discussion of the principles applicable in this area in the judgment of Ipp JA in Flounders v Millar [2007] NSWCA 238 at [1-38].
Orders
For the reasons given above, I am of opinion that the appeal should be dismissed with costs.
JAMES J: I agree with Macfarlan JA
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LAST UPDATED:
5 December 2008