Supreme Court of Western Australia
[2002] WASCA 169
•4 SEPTEMBER 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | MITCHELL ERECTORS PTY LTD -v- HINNEN [2002] WASCA 169 |
| CORAM | : MALCOLM CJ |
WHEELER J EINFELD AJ
| HEARD | : 10 SEPTEMBER 2001 | ||
| DELIVERED | : 4 SEPTEMBER 2002 | ||
| FILE NO/S |
| ||
| BETWEEN | : MITCHELL ERECTORS PTY LTD |
Appellant
AND
KEVIN RANDALL HINNEN
Respondent
Catchwords:
Torts - Negligence - Personal injuries - Damages - Whether excessive - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed as to damages only
[2002] WASCA 169
Category: B
Representation:
Counsel:
| Appellant | : | Mr N J Mullany |
| Respondent | : | Mr K J Bonomelli |
Solicitors:
| Appellant | : | Phillips Fox |
| Respondent | : | Slater & Gordon |
Case(s) referred to in judgment(s):
Cullen v Trappell (1980) 146 CLR 1
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd [1992] Aust Torts Reports 61,706
Villasevil v Pickering (2001) 24 WAR 167
Wilson v Wheatley (1975) 50 ALJR 207
Case(s) also cited:
Abalos v Australian Postal Commission (1991) 171 CLR 167
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Chicco v Corporation of the City of Woodville (1990) Aust Torts Rep 81-028
Devries v Australian National Railways Commission (1993) 177 CLR 472
Galea v Galea (1990) 19 NSWLR 263
Giner v Public Trustee (1991) 105 FLR 410
Jones v Bartlett (2000) 75 ALJR 1
Kondis v State Transport Authority (1984) 154 CLR 672
Lawson v Flavell [2001] WASCA 272
Malec v JH Hutton Pty Ltd (1990) 169 CLR 638
McMahon v Giffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA;
Library No 970226; 16 May 1997
Miller v Jennings (1954) 92 CLR 190
[2002] WASCA 169
Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; FCt SCt of WA;
Library No 980520; 14 September 1998
Rosenberg v Percival (2001) 75 ALJR 734
SS Hontestroom v Ss Sagaporack [1927] AC 37
State Government Commission v Hitchcock, unreported; FCt SCt of WA;
Library No 970089; 11 March 1997
State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193
Voulis v Kozary (1975) 180 CLR 177
West Australian Trotting Association v Zafer, unreported; FCt SCt of WA;
Library No 960222; 26 April 1996
Wilson v Peisley (1975) 50 ALJR 207
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
[2002] WASCA 169
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MALCOLM CJ: This is an appeal against a judgment of Viol DCJ in the District Court on 15 February 2001 by which the learned Judge awarded the respondent damages in the sum of $525,658 inclusive of interest for negligence. The grounds of appeal as set out in the notice of appeal are extensive and relate both to the issue of liability and the assessment of damages.
The respondent was employed by the appellant. On 16 August 1996 at about 8.30 am the respondent was working at a construction site known as the Whitfords Cinema Complex. The appellant was a contractor on site carrying out steel construction work. This involved the "grouting" of areas at the base of steel columns, including the filling of spaces left between the concrete floor and the columns. The respondent was injured when he was required to walk across an area of wet concrete carrying a bucket of grouting cement. While doing so he slipped and was injured. He subsequently claimed damages for negligence or, alternatively, damages for breach of statutory duty under s 19 of the Occupational Health Safety and Welfare Act 1984.
The respondent alleged that the appellant was negligent in a number of respects, namely that the appellant:
(a) failed to provide a safe system or safe place of work; (b)
failed to take any or any adequate precautions to ensure that the [respondent] would not and could not slip at the premises;
(c)
caused or permitted water to accumulate on the floor of the premises;
(d)
failed to employ any or any adequate means to ensure that water would not be left on the floor of the premises;
(e)
permitted the [respondent] to walk in the area of the pool of water when they knew or ought to have known that it was unsafe and dangerous for him to do so;
(f)
failed to give the [respondent] any or any adequate or effective warning of the danger of the premises; and
(g)
caused or permitted the said pool of water to become or to remain a danger to the persons lawfully using the said premises."
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The particulars of breach of statutory duty were that the appellant:
"(a) failed to provide and maintain a workplace plant and system of work such that so far as was practicable, its employees and in particular the [respondent] were not exposed to hazards;
(b) failed to make arrangements for ensuring that the use of plant at the workplace was carried out in a manner such that its employees and in particular the [respondent] were not exposed to hazards; and (c) failed to ensure that the floor of the premises were as even, slip resistant and free from obstruction as practicable in breach of reg 332(1)(b) of the Occupational Health Safety and Welfare Regulations 1996."
5 The appellant denied the duty of care alleged to be owed by it and
did not admit the circumstances of the accident as pleaded. The appellant also pleaded that the alleged activities did not expose the respondent to a foreseeable risk of injury. Alternatively, it was contended that if the respondent was exposed to a foreseeable risk of injury, there were no reasonably predictable precautions which could or should have been taken by the appellant to prevent the accident. There was also a plea of contributory negligence on the part of the respondent in that he failed to keep a proper lookout and failed to take reasonable care for his own safety in all the circumstances.
6 So far as the issues of causation and liability are concerned, I agree
with the conclusions expressed by Einfeld AJ. So far as the appeal against the quantum of damages is concerned, this was limited to the amounts awarded for past economic loss and future economic loss, namely, $132,948 and $270,921 respectively.
7 At the time of the accident the respondent was 38 years of age. As a
result of the accident the respondent was found by the learned Judge to have sustained the injury and consequent disabilities and loss of enjoyment of life pleaded in his statement of claim. The injury was to the lumbar spine causing annular bulging of the L4/L5 disc, a lateral extension of the right L5/S1 disc and annular bulging of the L3/L4 disc. He had undergone continuous and conservative treatment under the care of a general practitioner and a neurosurgeon. These injuries had left him with residual disabilities, namely:
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(a) restriction in straight leg raising on the left side to 80 degrees; (b) pain and discomfort in the right leg; (c) impairment of walking skills; (d) 25 per cent efficient use of the back; and (e) preclusion from his pre-accident employment. 8 The respondent claimed that he had lost his previous enjoyment of
life and was either unable or restricted in his ability to engage in activities in which he had participated prior to the accident, namely, gardening, general domestic duties, providing skilled and unskilled help to family and friends and playing with children. His character had changed so that he had become impatient, frustrated and suffered loss of self-esteem and feelings of inadequacy. As a result of the accident he had been totally and permanently disabled from working. Consequently, he had suffered both past economic loss and interest thereon. He had also suffered future economic loss by way of damages on the basis that he would have continued to work in his pre-accident capacity until the normal retirement age of 65 years. In the course of the trial the appellant conceded that the respondent could no longer work as a rigger, but contended that he could work full-time in a sedentary occupation not involving repetitive lifting, twisting and bending. Such work could be as a shop assistant, in a video or CD store, courier driver, usher, commissionaire in an office building or a car park attendant.
9 The learned Judge found that the accident was due to the negligence
of the appellant and there was no contributory negligence on the part of the respondent. It was found that the respondent had suffered the injuries claimed and had undergone the course of treatment described. In particular, the learned Judge concluded at pars [83] – [87] of his judgment:
83 The course of treatment was as described by the [respondent], with referrals to Mr Bannan, neurosurgeon. The [respondent's] attendances on his general practitioner (Dr McKneeley) appear to involve a constant pattern of complaints, consistent with the back injury suffered in the accident.
84 The medical evidence confirms, in my view, a continuance of symptoms in the [respondent's] back consistent with the injuries to the [respondent's] lower spine. Although Professor Hollingworth opined that the
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back symptoms were now referable to the generation [sic degeneration] rather than the injuries, Mr Bannan, the treating neurosurgeon, was far less certain on this point, and thought that a proportion of his leg and back pain were still work related (T17 - de bene esse). In my view, there is an ample basis to find that the [respondent's] continuing back symptoms are accident related per se.
85 As to the [respondent's] leg pain, Professor Hollingworth was rather strongly of the view that this was a recent result of degeneration and a new physiological condition. Mr Bannan's view was as above. Mr Bannan also confirmed that the [respondent's] leg pain could be connected to the back injury and explained the mechanics of this. Bearing in mind this explanation and the evidence generally, I consider that on the balance of probabilities, the [respondent's] continuing level of pain both in his leg and his back is accident related.
86 These views I have arrived at with the background that pre-accident, the [respondent's] back and legs were asymptomatic, but this position changed after the accident and that the predominant medical opinion is that one cannot, with any certainty, predict when (and whether) a person such as the [respondent] engaged in the work he did, would inevitably suffer such symptoms due only to degeneration.
87 Despite the opinion of Professor Hollingworth and submissions on behalf of the [appellant], I consider that there was ample evidence upon which I can conclude that the [respondent's] present symptoms are work related, that is, caused by the accident and not to some degenerative process."
10 So far as damages are concerned, the appeal contested only the
amounts awarded for past economic loss of $132,948 and future economic loss of $270,921. In Wilson v Wheatley (1975) 50 ALJR 207 at 214 Mason J said that an award of damages by a trial Judge for personal injury will not be disturbed on appeal unless the court is convinced that:
"… he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages is so
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inordinately low or so inordinately high as to be a wholly
erroneous estimate of the damages suffered."
See also Rosenberg v Percival (2001) 75 ALJR 734 at [38] – [39] per
McHugh J.11 For the purposes of the appeal the appellant accepted the findings
that the accident occurred as alleged at 8.30 am on 16 August 1996 on the "retail" or "shopping" level of the complex. The defence at the trial was conducted in the manner and the circumstances alleged by the respondent. As I have indicated, I agree with Einfeld AJ so far as the issue of liability is concerned.
12 It was contended for the appellant in support of ground 4 of the
appeal that the trial Judge erred in his finding that the respondent "sustained an injury to his lumbar spine which caused the bulging of his L4/L5 disc, a lateral extension of the right of the L5/S1 disc and an annular bulging of L3/L4 disc". These findings were said to be inconsistent with the evidence of Dr Barran that the accident only caused a rupture of the L5/S1 disc and related symptoms; that the L4/L5 disc bulge was caused by "age related change"; and was asymptomatic after the accident and did not deal with the L3/L4 disc at all. They were also said to be inconsistent with Professor Hollingworth's evidence that the accident caused a protrusion of the respondent's L5/S1 disc and related symptoms. On this basis it was submitted that the learned trial Judge ought to have found that the rupture of the L5/S1 disc was the only injury caused by the accident.
13 In my opinion, however, as was contended on behalf of the
respondent, the findings by the learned Judge were supported by the evidence. In his report dated 3 September 1999 (Exhibit 17E) Professor Hollingworth accepted that the injury on 16 August 1996 made an asymptomatic back condition or degeneration symptomatic. In his report dated 14 October 1997 Mr Bannan said that the low back pain was due to disc disintegration at L4/5 and L5/S1 and that this was related to the respondent's work injury. In his report dated 7 December 1999 Mr Bannan confirmed that the relevant event on 16 August 1996 precipitated the injury to the respondent's disc. Given his complaints of back and left L5 pain, the event of 1996 was still the cause of his current symptoms. Mr Bannan also gave evidence that the injury was a rupture of the L5/S1 disc, which is the lowest disc in the lumbar spine, which was degenerate and that there was pressure on the nerve root.
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For these reasons ground 4 of the grounds of appeal fails.
15 Ground 5 contended that the learned Judge erred in fact and in law
by failing to make a sufficient reduction in the respondent's damages for economic loss for the contingency that the respondent's degenerative back condition would have become disabling in any event. A number of submissions were advanced in support of this contention. First, it was contended that his Honour misdirected himself by inquiring whether such contingency could be predicted with "any certainty". This approach was said to be incorrect because, as a matter of law, the test was whether the contingency was a "real possibility" and then to apply a percentage discount to reflect that possibility.
16 This was a matter which was the subject of a deal of evidence by
both Mr Bannan and Professor Hollingworth. Mr Bannan's evidence was that the extent of wear and tear is guess work; it is impossible to accurately predict the material history of the disease; it could not be said with any certainty that the respondent would have to stop work at 50; some people can work up to 65 with wear and tear; it is not possible to say how much of his complaints of pain are work related and how much is due to wear and tear; his leg pain is work related; his back pain is partly work related and a portion is due to underlying wear and tear; he would have cause to complain of back pain as the wear and tear advanced; there is a question whether the back pain would have been enough to stop him working; a lot of people have back pain with their job and just put up with it; and that is what Mr Bannan said he did not know and did not think anyone knew. In Mr Bannan's opinion the respondent may have worked to 55, he may have worked to 60 or he may have had to stop work at 45.
17 According to Professor Hollingworth, there was no correlation
between the extent of degeneration and pain. The presence of pain does not necessarily mean that physical incapacity will occur. The injury which the respondent suffered made an asymptomatic condition or degeneration symptomatic. It is difficult to guess at what stage the respondent would have to retire, but a probable scenario would be somewhere in the region of 50-55.
18 In my opinion, the learned Judge correctly resolved the issue raised
regarding the degeneration point by making a total deduction of 5 years in respect of the respondent's normal working life and a further deduction of 5 per cent on account of the relevant contingency.
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19 Ground 6 contended that the learned Judge was in error in allowing a
deduction of only 5 per cent for the contingency that the respondent would have "periods off work" when the evidence disclosed a real possibility that he would have been unemployed for significantly longer periods than 5 per cent each year had he not been injured. The respondent's contention was that the deduction was adequate. The learned Judge noted that the respondent's occupation was to some extent "seasonal", although there were some periods when the respondent had been unemployed before the accident. Past economic loss was calculated on the basis that the accident related injuries precluded any possibility of the respondent working between the date of the accident and the date of trial, subject to a limited deduction of 5 per cent on account of the "seasonality" of the work. In my opinion it was not demonstrated that this allowance was inadequate.
20 Ground 7 contended that the learned trial Judge was in error in
assessing the respondent's loss of earning capacity partially on the basis of
his earnings as a rigger because the respondent testified that:
(a) if he had not been injured he would not have continued working as a rigger; (b) he intended to work as a mobile crane driver and the earnings in that position would be commensurate with those as a rigger; (c) he was paid by the appellant as a first class labourer and not as a rigger; and (d) the evidence did not support findings that the respondent's earnings would have been an average of $850 per week between the date of the accident and the date of trial and not less than $925 per week in the future. 21 In my opinion the approach adopted by the trial Judge was correct.
The respondent's evidence was that he commenced employment as a rigger to gain experience to qualify for employment as a mobile crane driver. If he was employed as a mobile crane driver his earnings would have been the same as a rigger. A rigger was paid the same as a first class labourer.
22 Ground 8 contended that the learned trial Judge erred in fact and in
law in finding that the respondent had only a 30 per cent retained earning capacity in the future because, having found in par [102] of the reasons that, "given a reasonable time to be trained and to assimilate the duties" the respondent would be fit to work in various capacities and occupations,
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the learned trial Judge failed to attach any weight, or sufficient weight, to the uncontested evidence of Larson as to the earnings and employment prospects applicable to the occupations for which the respondent was suited.
23 As to this, I agree with Einfeld AJ that the level of remuneration used
to calculate the loss of earnings, both past and future, was excessive. Further, there were errors made in relation to interest on past loss of earnings and in failing to apply Fox v Wood (1981) 148 CLR 438.
24 In my opinion, the calculation for loss of past and future income at
the rate of $600 per week net is appropriate. For the purpose of the assessment of damages for past and future loss of earnings, there must be taken into account in reduction of the gross loss assessed, the income tax which the respondent would have paid on the earnings of which the respondent has been deprived: Cullen v Trappell (1980) 146 CLR 1; and see Luntz, Assessment of Damages for Personal Injury and Death (3rd Ed) par 5.7.1 at 257.
25 The relevant calculation should be made by reference to the
Australian Tax Office Tables based on the net figures used by Einfeld AJ.
26 As to loss of future superannuation benefits, this should be
compensated in accordance with the decision of the Full Court (Malcolm CJ, Anderson J and Grove AJ) in Villasevil v Pickering (2001) 24 WAR 167. In the absence of any specific actuarial evidence, the method of assessment adopted in Jongen v CSR Ltd [1992] Aust Torts Reports 61,706 provides a prima facie measure of damages for loss of superannuation benefits. As Anderson J said in Villasevil at [50] – [51]:
"For all practical purposes the surcharge prescribed by the Act [Superannuation Guarantee (Administration) Act 1992 (Cth)] can be regarded as the minimum employer contribution and I will call it that. Under the Act the minimum employer contribution until July 1997 was 6 per cent of gross wage. It then rose to 7 per cent until July 2000, since when it has been 8 per cent of gross wage. It will rise to 9 per cent in 2002 and, as the Act presently stands, it will remain at that level thereafter.
That being part of the law of the land, it follows that an employee who is incapacitated for work suffers a detriment over and above his or her loss of wages or salary, namely the benefit of whatever superannuation arrangements are applicable to his
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employment, which will be at least the arrangements guaranteed
by the Act."
27 As appears from the judgment of Anderson J in Villasevil, supra , par [53], the Court in that case followed the method of assessment in Jongen v CSR Ltd, supra. As was noted by Anderson J at [56] a common version of the Jongen formula takes the prevailing minimum employer's contribution rate prescribed by the Act, applies that percentage rate to the lump sum figure determined as the relevant loss of earning capacity and deducts 30 per cent to cover the income tax levied on contributions, which was, and as I understand it, still is, 15 per cent, and the fact that the plaintiff is not entitled to the benefit of the contributions until retirement and other contingencies, including the risk that fund administration costs may exceed investment income and the risk of the failure of the fund itself. Under the Act the minimum employer superannuation contribution until 1 July 1997 was 6 per cent of the gross wage. It then rose to 7 per cent. From 1 July 2000 the rate increased to 8 per cent and will increase to 9 per cent from 1 July 2002. For the period 30 June 2000 – 1 July 2002 the employer contribution was $2,496 each year, a total of $4,992. From 1 July 2002 it will be $2,808 per annum, assuming no change to the legislation. The total loss of superannuation to 30 June 2002 is, therefore, $11,328. The loss at the date of judgment was calculated by the learned trial Judge using a figure of $650 per week net for past loss of earnings as an average.
28 In respect of past superannuation the learned Judge scaled up the
gross wage to $850 per week. Based on Jongen v CSR, supra, his
Honour's calculation of past superannuation loss was:"6 per cent x $850 = $51
$51 x 215.3 weeks = $10,980
Less discount of 5 per cent - $549, leaving a figure of $10,431(As per Jongen v CSR and Anor [1992] A Tort Rep 81-192)"
| 29 | Future superannuation was calculated as follows: "$42 per week ($700 x 6 per cent) x 582 = $24,444 Less 30 per cent for the deduction already referred to = $17,111 Less 30 per cent as per Jongen v CSR = $11,978" |
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30 In this case, the learned trial Judge used gross weekly income as the
basis for calculation of past superannuation loss and net weekly income to calculate future superannuation loss. His Honour also used a superannuation contribution rate of 6 per cent in respect of future superannuation loss. On 21 June 2002 the Court raised these issues with counsel for the parties and gave them the opportunity to file submissions. Each party accepted that the Court had power to correct these errors.
In respect of the first error, the calculation should be made in each case on gross weekly income in accordance with Villasevil, supra, per Anderson J. In respect of the second error, the rate prescribed under the Superannuation Guarantee (Administration) Act 1992 (Cth) at the date of trial is the rate to be used: Villasevil. The trial was heard from 3-6 October 2000. According to s 20 of the Act the applicable rate at the time of trial was 8 per cent.
Accordingly, the calculation is as follows:
Past:
6 per cent of gross weekly income $774.29 = $46.46 ($46.46 x 215.3 weeks) minus 5 per cent Jongen v CSR discount to cover income taxation levied on contributions = $9,502.70
Future:
Based on 13 years of income @ $600 net per week:
(gross $774.29 x 8 per cent) 502 = $31,095.49 less 30 per cent deduction retained earning capacity = $21,766.84 less 30 per cent Jongen v CSR = $15,236.79 Based on 5 years of income @ $500 net per week: (gross $628.31 x 8 per cent) 232 = $11,661.43 less 30 per cent deduction retained earning capacity = $8,163.00
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WHEELER J
EINFELD AJ
less 30 per cent Jongen v CSR = $5,714.10
Total: = $20,950.89
The resulting damages are:
General damages $50,000.00 (not challenged) Special damages $12,972.00 (agreed)
Past loss of earnings $122,721.00 Interest on past loss $143.00 Past superannuation $9,502.70 Future loss of earnings $265,069.00 Future superannuation $20,950.89 Total: $481,358.59 34 Finally, the agreed Fox v Wood amount of $28,440.60 must be deducted. I would dismiss the appeal on the issue of liability and allow the appeal on the issue of damages by substituting a total award of $452,917.99.
WHEELER J: In respect of liability I agree with the reasons of Acting Justice Einfeld and, so far as damages are concerned, I agree with the reasons of the Chief Justice and the orders his Honour proposes.
EINFELD AJ : On 16 August 1996, when aged 38 years and working as a rigger, the respondent was carrying a bucket of grout weighing about 30 kilograms on a wet concrete floor at the Whitford Cinema Complex then being constructed by the appellant, his employer, when he slipped and fell, injuring his back. He took action in the District Court and on 19 January 2001 was awarded damages of $525,658.
37 The employer has appealed the primary decision on both liability and
damages. Although contested at first instance, the appellant accepted for the purposes of this appeal that it could not now challenge the basic findings at trial that the accident had occurred at the time and place, and in the circumstances, alleged by the respondent. However, it argued that the facts found by the learned Judge did not amount to negligence and that there was no causal nexus between the alleged negligence and the fall. If either of these contentions could be made good, the appellant correctly submitted, the appeal must succeed.
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38 The first of these attacks on the judgment on liability depends upon a
finding of error by the learned Judge in his conclusions concerning the
slipperiness and wetness, and the unevenness, of the floors, viz:"It is clear also that the floor was wet and that there were puddles on the floor. The fact that there were puddles confirms the position, which commonsense would cause one to conclude, that the floor was not precisely level and that there were some areas of a slightly different height than others …
It is clear that the floor upon which the [respondent] was required to walk was wet, given to being slippery and with a surface that varied as one walked across it."
39 The appellant argued that these findings were not open on the
evidence. In my opinion, there was ample evidence to support the
findings and the learned Judge accepted the evidence.40 The respondent's evidence was that the area where he fell was open
to the elements at the time and that on the morning in question it had been raining and windy. As a consequence, the concrete floor was very wet and slippery causing him to fall. He was not told by anyone to stay off the floor while it was wet.
41 Robert Thompson, a health and safety inspector at the site for the
entirety of the construction, corroborated his account. Mr Thompson's evidence was that it was dangerous to work in the rain and on wet surfaces at the time because of possible electrocution due to exposed electrical wires and power, and of the slipperiness of the surface. He said that workers would normally, and should, be warned not to go on these surfaces until they had been dried, or that the areas should, and would normally, be cordoned off to prevent passage while still wet. Mr Thompson said that wet concrete surfaces at construction sites are made even more dangerous by the tendency for the floor to be uneven and to hold sawdust or other loose material which are particularly slippery when wet.
42 Mr Thompson was on this particular floor area when the respondent
fell. He was angry that the respondent was there because the floor had not been cleaned and cleared of loose building material and had not been dried. There were puddles on the surface. It was slippery and dangerous, not least because like similar concrete surfaces elsewhere, it had been treated with curing agents causing the formation of a film which together
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with the sawdust and other materials emanating from the work being performed, including on the floor above, add significantly to the hazard and risk of injury. This view was supported by Andrew Van Der Meer, a consulting engineer, who gave expert evidence of how and why the curing process and water combine to make concrete surfaces of the kind in question resistant to footwear establishing a grip. The presence of puddles suggested the unevenness of the surface and increased the risk of instability of footing.
43 The appellant attacked the reasons for judgment below because they
did not "identify with precision" the basis for the findings made on these matters. It contended that his Honour's rejection of the evidence of its expert, Dr Stephen Chew, and its project manager, John Spence - or as was really being put, his preference for the evidence of the respondent's witnesses over those persons - was not explained in that "no basis was articulated" for the rejection.
44 I reject those submissions. In the first place, they invited an
appellate court to reverse a first instance finding based on the acceptability of witnesses which well articulated authority forbids. Arguments that undue weight was given to some evidence and insufficient weight to others, as was put here, is directly in this category. Secondly, it was based upon a series of contentions which ignore the evidence expressly given and accepted to which I have referred. Thirdly, it failed to give attention to his Honour's quite proper reliance on the failure of the appellant to cross-examine the respondent at the trial as to the state of the floor or how he slipped. This omission was a glaring gap in the appellant's case having regard to the arguments made on appeal which I have outlined. In fact, the learned Judge gave explicit reasons for discounting the evidence of Dr Chew and Mr Spence. Dr Chew's evidence denying slipperiness was largely based on the testing of a concrete surface which was not the accident site. His Honour's finding that it was irrelevant to the issues at the trial was not only open to him, it was correct. Mr Spence's evidence that all the concrete floor areas had the same finish was also irrelevant which, in contrast to the failure to cross-examine the respondent, explains why he, Mr Spence, was not cross-examined. These reasons were weighty and persuasive. They were at least open to the learned Judge to make.
45 Although dressed up as a studied search for legal error, the
appellant's submissions relied in truth upon the simple proposition that his Honour should have accepted an argument that the respondent was performing a simple task which did not expose him to a foreseeable risk
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of injury. I respectfully agree with the learned Judge that this argument
defies not merely the law but "commonsense".46 It was also contended that there was no evidence that it was the
appellant who instructed the respondent to go to the floor with the bucket of cement while the floor was still wet. This submission was entirely without substance. It was common ground or not challenged that the respondent was employed by the appellant and that someone told him to start work after the rain, what work he was to do, and where he was to do it. The appellant said that it might have been anyone who told him including persons not representative of the employer.
47 Many epithets could be used to describe this proposition but it will
suffice to say that the responsibility for giving instructions to an employee as to the work to be performed and the possible risks to be encountered is the employer's alone. If "someone" other than the employer gives a premature "go ahead" to an employee to go into a dangerous environment, the employer is nonetheless liable in negligence for any injury sustained.
48 As to causation, I did not understand the argument of the respondent
to raise in reality any additional argument to that put in relation to the breach of duty itself. In the circumstances, it is sufficient to state that the trial Judge's implied finding that the negligence found caused the respondent's injury was not tainted by error.
The challenge to the award of damages was limited to the amounts awarded for past and future economic loss ($132,948 and $270,921 respectively). The respondent posed ten possible approaches which this Court might take to these elements of the damages awarded of which, as I understood its argument, eight would be in error. I did not find this approach particularly helpful.
50 It was common ground that the total award was high but that
agreement would not mandate interference on appeal except that the respondent conceded that $28,440.60 should have been made as a Fox v Wood income tax allowance on the workers compensation received. That aside, the question is whether there was one or more errors of principle, and if so, whether the error(s) led to the assessment exceeding sound discretionary judgment. It is well settled that a mere difference of opinion by an appellate court with the assessment at trial does not warrant intervention.
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EINFELD AJ
51 The learned Judge found, I believe correctly having regard to the
medical evidence adduced at the trial, that at the time of the accident, the respondent had a degenerative spine which was asymptomatic and that, without the injury, it would not have become symptomatic between the accident and the trial. He therefore made no deduction for this possible contingency but allowed a 5 per cent deduction for the seasonal nature of his work. Nothing was put, and I can see no reason, as to why these findings are vulnerable to attack. However, it seems to me, with respect, that the level of earnings used to calculate the loss of earnings, both past and future, was excessive and reflects error. There were also errors made in relation to interest on past loss of earnings and in failing to apply Fox v Wood. These errors permit and require review by this Court.
52 The learned Judge found that the respondent would have worked to
aged 60 and he made a deduction of 5 per cent for contingencies, including the fact that even without the injury at work, he may have had time off work due to natural degeneration of his spine. Strong, even uncontested, evidence established a likely degenerative process, the casual and spasmodic availability of rigger's work, and the unlikelihood of work as a rigger going beyond the age of 55 years. This evidence meant that it was inappropriate to take a rigger's wage as the basis for the calculation of economic loss to aged 60 years. In addition, the respondent's own evidence was that in the five years before the accident, he had been employed irregularly, and as a rigger only for short periods. His employment with the appellant was as a casual and he was paid as a labourer first class. His average weekly earnings for the 12 month period was about $500 per week after tax.
53 Allowing for increases in income levels over time, I think that it was
appropriate to calculate his loss of income both past and future on the basis of $600 per week net. From the accident to trial, 215.3 weeks @ $600 per week amounts to $129,180. From this sum must be deducted the 5 per cent allowed by his Honour for contingencies, leaving $122,721 plus interest of 6 per cent for 4.1 years on the difference between this figure and the workers' compensation paid of $122,139. This amounts to $143.
54 As to the future, I think that the appropriate calculation was to allow
13 years from aged 42 to aged 55 at $600 per week, and $500 per week for a further five years to aged 60 which his Honour found, as he was entitled, would be the effective end of his formal working life. The Chief Justice has performed the detailed calculations relevant to future economic loss and to loss of superannuation benefits. I agree with his Honour's findings and conclusions in those regards.
[2002] WASCA 169
EINFELD AJ
55 I agree with the Chief Justice that the appeal on liability should be
dismissed but that the appeal on damages should be allowed as
his Honour proposes.
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