Syd Matthews & Co Pty Ltd v Cavanagh
[2005] WASCA 178
•19 SEPTEMBER 2005
SYD MATTHEWS & CO PTY LTD -v- CAVANAGH [2005] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 178 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:18/2004 | 11 AUGUST 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 19/09/05 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Appeal in relation to issue of liability and contributory negligence dismissed Cross-appeal on the issue of liability dismissed Appeal in relation to damages allowed Case remitted to District Court for reassessment of damages | ||
| B | |||
| PDF Version |
| Parties: | SYD MATTHEWS & CO PTY LTD TREVOR PAUL CAVANAGH |
Catchwords: | Negligence Duty of care Employer and employee Safe system of work Sheep carter climbing the side of sheep truck Opening gate to sheep pen on truck Charged by a sheep and knocked to ground Whether employer ought to have warned worker of the risk of injury and trained or instructed him in ways to avoid injury in the course of his work Negligence Contributory negligence Employee injured when opening gate to sheep pen on a sheep truck and knocked by a sheep to the ground Experienced employee Whether employee took sufficient care for his own safety Damages Loss of earning capacity Extent to which accidentcaused injuries contributed to loss of earning capacity Effect of other injuries suffered on other occasions Approach to assessment of loss of earning capacity Gratuitous services Whether services allowed were properly services rendered to the respondent for disabilities caused by injuries sustained in accident Broad range of services by a number of different persons Future travelling expenses Accuracy of calculation Reimbursement of workers' compensation |
Legislation: | Nil |
Case References: | Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Chappel v Hart (1998) 195 CLR 232 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Graham v Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Husher v Husher (1999) 197 CLR 138 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1985) 155 CLR 306 Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 Newman v Nugent (1992) 12 WAR 119 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Purkess v Crittenden (1965) 114 CLR 164 Tomlinson v Congleton Borough Council [2004] 1 AC 46 Van Gervan v Fenton (1992) 175 CLR 327 Wagner v Midland Junction Abattoir Board [1963] WAR 84 Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110 Australian Iron & Steel v Krstevski (1973) 128 CLR 666 Duyvelshaff v Cathcart & Ritchie Ltd [1973] Qd R 11 F v R (1983) 33 SASR 189 Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (1987) 8 NSWLR 707 Kondis v State Transport Authority (1984) 154 CLR 672 Martin v Clarke [2005] WASCA 66 McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Quigley v Commonwealth of Australia (1981) 35 ALR 537 Raimondo v South Australia (1979) 23 ALR 513 Rogers v Whitaker (1992) 175 CLR 479 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65 Tame v The State of New South Wales (2002) 211 CLR 317 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SYD MATTHEWS & CO PTY LTD -v- CAVANAGH [2005] WASCA 178 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
- Appellant (Defendant)
AND
TREVOR PAUL CAVANAGH
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : JENKINS DCJ
Citation : CAVANAGH -v- SYD MATTHEWS & CO PTY LTD [2004] WADC 11
File No : CIV 1788 of 1999
(Page 2)
Catchwords:
Negligence - Duty of care - Employer and employee - Safe system of work - Sheep carter climbing the side of sheep truck - Opening gate to sheep pen on truck - Charged by a sheep and knocked to ground - Whether employer ought to have warned worker of the risk of injury and trained or instructed him in ways to avoid injury in the course of his work
Negligence - Contributory negligence - Employee injured when opening gate to sheep pen on a sheep truck and knocked by a sheep to the ground - Experienced employee - Whether employee took sufficient care for his own safety
Damages - Loss of earning capacity - Extent to which accidentcaused injuries contributed to loss of earning capacity - Effect of other injuries suffered on other occasions - Approach to assessment of loss of earning capacity - Gratuitous services - Whether services allowed were properly services rendered to the respondent for disabilities caused by injuries sustained in accident - Broad range of services by a number of different persons - Future travelling expenses - Accuracy of calculation - Reimbursement of workers' compensation
Legislation:
Nil
Result:
Appeal in relation to issue of liability and contributory negligence dismissed
Cross-appeal on the issue of liability dismissed
Appeal in relation to damages allowed
Case remitted to District Court for reassessment of damages
Category: B
(Page 3)
Representation:
Counsel:
Appellant (Defendant) : Mr D R Clyne
Respondent (Plaintiff) : Mr P G McGowan
Solicitors:
Appellant (Defendant) : Phillips Fox
Respondent (Plaintiff) : Paul O'Halloran & Associates
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chappel v Hart (1998) 195 CLR 232
Czatyrko v Edith Cowan University (2005) 214 ALR 349
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Husher v Husher (1999) 197 CLR 138
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1985) 155 CLR 306
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
Newman v Nugent (1992) 12 WAR 119
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Purkess v Crittenden (1965) 114 CLR 164
Tomlinson v Congleton Borough Council [2004] 1 AC 46
Van Gervan v Fenton (1992) 175 CLR 327
Wagner v Midland Junction Abattoir Board [1963] WAR 84
Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110
Case(s) also cited:
Australian Iron & Steel v Krstevski (1973) 128 CLR 666
Duyvelshaff v Cathcart & Ritchie Ltd [1973] Qd R 11
F v R (1983) 33 SASR 189
(Page 4)
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (1987) 8 NSWLR 707
Kondis v State Transport Authority (1984) 154 CLR 672
Martin v Clarke [2005] WASCA 66
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Quigley v Commonwealth of Australia (1981) 35 ALR 537
Raimondo v South Australia (1979) 23 ALR 513
Rogers v Whitaker (1992) 175 CLR 479
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Tame v The State of New South Wales (2002) 211 CLR 317
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 5)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA and Roberts-Smith JA. I agree with Miller AJA, except in relation to the findings of the learned trial Judge in relation to the "three-point hold". As to that matter, like Roberts-Smith JA, it seems to me that a hold on the open gate of the silly pen could not be characterised as the "firm contact" which Dr Chew said was required for a safe three-point hold. I would add, since there was some criticism of the finding by counsel for the appellant, that it was open to her Honour to find, as she did, that an alternative safe system of work could have involved not using the silly pen. Dr Chew's evidence in his report was that only an estimated 1 per cent to 2 per cent of the load area would have been lost in such a case. The respondent's evidence, quoted by Miller AJA, was that in "a lot of loads" the back of the silly pen was closed off and not used. This evidence was not challenged in cross-examination.
2 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons of Miller AJA. I agree with his Honour's reasons and conclusions in all respects other than ground 2 of the appeal.
3 I do not consider that the primary Judge was wrong to have concluded there was a failure on the part of the respondent to maintain a three-point hold at the relevant time. It is true the respondent's unchallenged evidence in this regard was that he had both feet on the slats and one hand on the silly pen gate, but that was not a "three-point hold" as described by Dr Chew.
4 The respondent described what he did and what happened, in the following way in his evidence-in-chief (AB 1/132-3):
"To get out of the silly pen what did you do - to reach the silly pen?---I was hanging onto the side of the crate.
What would your feet be on at that time? What would you be standing on?---Slats.
What were you holding onto?---The slats on the side of the crate.
With which hand were you using to hold on?---Just intermittent, you know, as you move along the crate and that. Sometimes you are not actually holding one at all, it depends - you know, as you are moving you are moving your hands too.
(Page 6)
- When you get to the silly pen did you do anything in relation to the outer gate inside of the truck?---I opened the front gate on the outside of the silly pen.
What was the purpose of opening that gate at that time?---To turn the wethers down the ramp."
5 He then described how he could not get the sheep to move down the ramp, even with the prodder. He then continued (AB 1/133):
"Then what did you do in relation to the outer gate of the silly pen?---I opened it up with my left hand.
Whilst you were opening it with you [sic] left hand where was your right hand?---Hanging onto the side of the crate.
Then when the gate was open what did you do?---Hung onto the gate with my left hand and went in and turned the first sheep down the ramp and the next one hit me.
When you say you went in, how much of you went into the silly pen?---2 or 3 foot of me.
Sorry, can you - - -?---Probably up to my bellybutton, from the head to the bellybutton.
You say one of the sheep hit you. Can you explain just exactly what happened?---As I reached for it, it charged, I ducked my head and I cannot remember coming out of the gate but I can remember just before turning, you know, sideways on my left-hand side before I hit the ground."
6 It is clear from this that the respondent was holding on only with his left hand, and that was holding an opened and unfastened gate.
7 Dr Chew's evidence (at AB 2/369) was that to minimise the risk of falling off the side of the shipping crate a person who is climbing on it must at all times be able to exercise a three-point grip method. He explained that as follows:
"---A three-point grip method is one where this person is either being able to firmly grasp the side of the crate with both hands and securely stand on the crate with at least one food [sic foot], or, alternatively, firmly grasp the side of the crate with one hand
(Page 7)
- and securely stand on the crate on both feet, so at all times the three-point contact, firm contact.
How is that three-point grip affected by entry into the silly pen through that gate?---Well, my understanding is that if you push your torso through the gate into the silly pen it is unlikely that you can have a firm grip with both hands on a fixed object."
8 It is clear from Dr Chew's evidence that the critical feature of a three-point hold is that each of the holds is to a firm, secure contact. It was open on the evidence for her Honour to take the view that a one-handed hold on a free-swinging gate was not a secure hold and to find (as she did at [96] of her reasons) that the respondent was routinely opening the gate of the silly pen and inserting his torso into the pen without maintaining a safe hold on the crate.
9 Although I differ from Miller AJA in this respect, as his Honour concludes that what he considers an erroneous conclusion by her Honour does not vitiate her finding the appellant breached its duty of care to the respondent, we both arrive at the same result.
10 MILLER AJA: This is an appeal from a judgment of Jenkins DCJ in the District Court at Perth delivered on 28 January 2004 when the respondent recovered against the appellant the sum of $758,020.67 by way of damages in respect of injuries he sustained when he fell from the appellant's sheep-carrying truck. The appeal contests the learned trial Judge's findings on the issues of liability, contributory negligence and damages.
Liability
11 The respondent suffered personal injury on 13 December 1995 whilst in the course of his employment with the appellant. He sued the appellant for damages in negligence, breach of statutory duty and breach of contract. The learned trial Judge found it necessary only to deal with the question of negligence.
12 The respondent was, at the time of his accident, a 43-year-old man from Kojonup. He was educated to year eight at high school. He entered the workforce in 1994, working in the Kojonup area in various occupations which included stock manager, shearer, truck driver and sheep carter. He had a long history of experience with sheep, including shearing and as a truck driver carting goods of one sort or another. The respondent's father had been a truck driver engaged in carting livestock
(Page 8)
- and the respondent learned how to handle sheep on trucks from his father. The respondent's father had worked with the appellant between 1965 and 1992 and the respondent, as a child, had often worked with his father.
13 The respondent testified that from 1978 to 1979 he was employed with Farr's Rural Company, where he became stock manager at the age of 19 years. He handled up to 40,000 sheep every six weeks. The respondent resigned from that position and in 1982 obtained work with the appellant carting sheep, cattle, wool and superphosphate. After a disagreement with his principal, he resigned in 1982, but worked in sheep transporting with an associated company until 1984. In the period 1986 - 1992, the respondent was actively engaged in shearing and a number of other duties which included tractor and truck driving. Thereafter, he did some further shearing and truck driving, prior to commencing work in 1994 with the appellant as a "heavy truck driver". This work entailed primarily carting or transporting live sheep, but also grain and superphosphate.
14 The question of the respondent's experience with sheep and sheep carting was the subject of cross-examination. It transpired that, when the respondent had been stock manager at Farr's Rural Company, he dealt with millions of sheep in a year. This included loading and unloading the sheep. His experience in handling sheep in transport was explored as follows:
"You used to go out on these types of trucks with your father?---Not four-deckers but three-deckers and two-deckers.
Yes; and again dealing with loading and unloading sheep?---Yes.
I think your father worked for this company for 25 years or something?---That's right.
And your brother has been with them for a long time and he's the present manager?---I don't know if he's the present manager.
If not manager, he has a fairly senior position there?---Yes, that's right.
And you have been out with him on trucks as well?---Yes. I've seen him unload sheep and that too.
And you learnt how to load and unload sheep by being with other truck drivers?---Yes, that's right.
(Page 9)
- That's the method for learning?---Eh?
That's how you learn the job. You go out with others and learn the job that way?---You just pick up what they do, yes.
But again it's something you've done many, many times over the years?---What's that?
Loading, transporting sheep, unloading sheep?---Yes."
15 There was extensive evidence before the learned trial Judge about the loading and unloading of trucks and trailers carting sheep. It is unnecessary to describe in detail the construction of a sheep-carting truck and trailer, but in broad terms, such a truck and trailer comprised four decks, holding approximately 400 - 600 sheep. The sheep are generally loaded at places with fixed ramps such as sale yards and feed lots.
16 Loading starts at the bottom deck. The right-hand side of the truck is first loaded and then the left-hand side. Nine or 10 sheep are loaded to a pen. Each level is then loaded by ramp, deck-by-deck. The respondent testified that unloading is a reversal of the process used to load the sheep. The exception is when a pen known as the "silly pen", which is on the back corner of the third deck, has to be unloaded. When it becomes necessary to get sheep out of the silly pen, this is done by unloading the right-hand side and then putting a sheep dog in to turn the sheep around before exiting that pen. The learned trial Judge described the process in this way (at [16]):
" … It is referred to as the silly pen because the peculiar nature of this pen is that in order to unload the sheep from it it is necessary to get them to move forward towards the centre of the crate to exit the pen through its gate. The sheep then have to do a U turn and exit the crate via the ramp at the rear of the right hand side of the trailer. It is difficult to persuade the sheep in the silly pen to execute these manoeuvres as they can see the other sheep exiting at the back of the trailer and therefore they want to leave the silly pen through the rear of the silly pen and not by way of a gate in the centre of the body of the truck."
17 Although the respondent sometimes had the assistance of sheep owners when loading and unloading sheep, he was often required to perform his duties alone. The learned trial Judge found that this was not unusual in the industry. To assist him, he had an electric prodder and a sheep dog. He had been using the electric prodder for a period of only
(Page 10)
- two months and the dog belonged to his brother-in-law because the respondent's own dog was unavailable.
18 Whilst the respondent was unloading sheep from a trailer at Mundijong, he experienced trouble with two sheep in the silly pen. He described what happened as follows:
" … I was - unloaded the two bottom deck and the right-hand side of the third deck and I was presently unloading the silly pen of the third deck.
Will you tell the court did something go wrong or were there difficulties, put it that way, in off-loading the silly pen on that particular occasion?---Two sheep just wouldn't come out. No matter how - the dog was pretty worn out by then and I used the prodder to prod them in the rear end to get them out and they just kept on circling around the dog and I opened the gate and turned one down the ramp and the next one charged me.
To get out of the silly pen what did you do - to reach the silly pen?---I was hanging onto the side of the crate.
What would your feet be on at that time? What would you be standing on?---Slats.
What were you holding onto?---The slats on the side of the crate.
With which hand were you using to hold on?---Just intermittent, you know, as you move along the crate and that. Sometimes you are not actually holding one at all, it depends - you know, as you are moving you are moving your hands too."
19 The respondent explained that his feet were about 2.5 metres from the ground at the time he carried out this manoeuvre. Basically, he was holding onto the side of the crate in question with his right hand and he had his feet positioned on what was described as the kick-plate. This was a horizontal slat, forming part of the side of the second deck crate. The respondent thus had what was termed a "three-point hold" and he used his left hand to open the outer gate of the silly pen. He said:
"Then when the gate was open what did you do?---Hung onto the gate with my left hand and went in and turned the first sheep down the ramp and the next one hit me.
(Page 11)
- When you say you went in, how much of you went into the silly pen?---2 or 3 foot of me.
Sorry, can you - - -?---Probably up to my bellybutton, from the head to the bellybutton.
You say one of the sheep hit you. Can you explain just exactly what happened?---As I reached for it, it charged, I ducked my head and I cannot remember coming out of the gate but I can remember just before turning, you know, sideways on my left-hand side before I hit the ground."
20 A great deal turned on the question of the extent of the respondent's experience manoeuvring sheep on transport trucks and, in particular, within the silly pen. This is what he said:
"How often would you need to enter the silly pen through that side gate to manoeuvre sheep within the silly pen? I mean how often in the course of your work?---It could be once a load unloading and once - and opening the gate once a load to load up.
Have you seen other drivers in the industry using that gate for that purpose?---Yes, everyone I've seen.
So how many times would you see that happen?---Most loads if half the silly pen's not shut off. You know, a lot of loads you don't have to use the back half of the silly pen and you can put the gates across and not use it. You just close the centre gate."
21 When cross-examined about this, the respondent said:
"And the idea of getting the sheep out of the silly pen is to turn them from facing towards the back of the trailer to get them facing back towards the front of the trailer. Is that right?---That's right.
And to do that you can go to the very back of the trailer and use the prod?---Yes.
And you could have done that?---I did do that.
You did do that, and the others left, did they - the other sheep in the silly pen?---They - yes, I got them moving. They went down.
(Page 12)
- And so there were still just two left?---Two, and they just kept on going around in circles.
You could have got into the crate, couldn't you?---From the other side.
Up the ramp from the other side?---I could have.
Yes, and that would have meant you wouldn't have to cling onto the side of the truck?---What are you trying to say, that I should go in that way and unload all the sheep off the crate?
Not all. Just two that you were not able to move with a prod and a dog?---Well, I didn't think - I tried not to go in there and crawl around on the hard mesh on my knees and whatever.
But it was able to be done?---It's able to be done.
And don't you think it would have been safer to do that?---In hindsight, probably, yes.
But instead you opened the gate and stuck part of your body in?---Like I've done every other day.
So you've done that lots of times, have you?---Done it all my life.
All your life, and did your father do that before you?---Yes, he's been in them side gates - - -
But you knew - - -?--- - - - but there was only three-deckers in his days and two-deckers.
But you knew when you did it there must be a risk of the sheep charging?---No.
You didn't?---No.
You didn't see that as a potential risk at all?---No."
The findings of the trial Judge on liability
22 The learned trial Judge found that the respondent had received no instruction or training as to the safe system for performing his work. She held that, like most others in his situation, he had learned the job by observing others, from doing it himself and by working out for himself the
(Page 13)
- most efficient way to perform it. She added that he had not been provided with any safety equipment by the appellant. Her Honour said (at [22]):
"As I have already stated, it was standard industry practice for drivers whilst standing on the horizontal slats to manually prod or handle the sheep. This is despite the working height and the presence of excrement and urine on the edges of the slats making them, at times, slippery. It was not always practical to get into the crates on the first to third decks in order to remove sheep as the decks were only 31 inches high and the flooring of the crates was rough, slippery and dirty. I accept that the plaintiff had seen his father and other truck drivers using the gate at the side of the silly pen to manually handle sheep as he did on this occasion. I also accept that it was something that the plaintiff regularly did. There is insufficient evidence to enable me to conclude that it was a system of work approved of by the defendant. It is clearly a dangerous practice as there is an obvious risk of sheep pushing or charging a worker whilst they are in a precarious position some height off the ground … "
24 After reviewing a wealth of expert evidence in relation to the safety of the system of work engaged in by the respondent and various alternative methods of unloading sheep which could be utilised, the learned trial Judge (after reviewing authority) concluded that there was a moderate degree of probability of an accident occurring in the circumstances in which the respondent was working. She saw the real question in the case as what the difficulties and inconvenience to the employer were of taking action to remove or minimise the risk of injury by reason of such an accident. The case for the appellant at trial was that none of the means of alleviating the risk proposed by the respondent were practical or available at the time of the accident and because the respondent was an experienced sheet carter, it was unnecessary for the appellant to warn him of the risk of injury or instruct him as to how he should perform his job.
(Page 14)
25 The learned trial Judge looked carefully at the evidence in relation to alternative systems of work that may have been employed. She held that it was not practicable for the appellant to have required the respondent to use a safety harness when unloading sheep from a height on the outside of a crate and it was not practicable for the appellant to provide the respondent with a suitable scaffold, ladder, platform, walkway or lift to facilitate the safe unloading of sheep from a crate. Her Honour also found that there was no evidence to support the contention of the respondent that the appellant had failed to provide adequate manpower to assist the respondent in the unloading of the sheep, as the overwhelming evidence was that the unloading of sheep at feedlots and similar places was a job universally done by the driver alone.
26 The learned trial Judge found that the appellant was not negligent in failing to supervise the respondent in his system of unloading sheep because he was an experienced livestock carter and "it was not reasonable to expect the defendant [appellant] to supervise such an experienced employee".
27 The learned trial Judge found, however, that the respondent had established that the appellant was negligent in failing to instruct or train the respondent in a safe system of unloading sheep and in failing to warn the respondent of the danger of injury arising from unloading sheep in the manner he did on this occasion. The appellant had a non-delegable duty of care to the respondent. The appellant could not discharge this duty merely by employing the respondent as an experienced livestock carter and leaving it entirely up to him to devise a safe system of work for performing his job. Her Honour added (at [94] - [96]):
"I accept that, generally speaking, it is not negligent for an employer to fail to supervise, train or instruct an experienced worker, or to warn such a worker in respect to risks of injury that are obvious and of which he is, in fact, already fully aware. These general principles applies unless it is apparent that the worker is making a practice of ignoring an obvious danger: McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 at 7.
In my opinion a reasonable employer would have taken some steps, by initial supervision, observation or training, of the plaintiff to ensure that his basic method or system of work was as safe as reasonably possible. If it was shown to be the case, and I believe it would have been, that the plaintiff was ignoring
(Page 15)
- an obvious danger because he was regularly employing a system of work that was unsafe and unnecessary, the employer should have taken steps to warn the plaintiff of the risk and to train or instruct him in ways of avoiding that system of work.
Consequently, in order to discharge its duty of care to the plaintiff, the defendant upon re-employing the plaintiff in 1994, should have conducted some initial supervision, observation or enquiry of the plaintiff to ensure that his system of work was not exposing him to unnecessary risk or that he was not ignoring obvious risks. Such supervision, observation or enquiry would have disclosed that the plaintiff was routinely opening the gate of the silly pen on the third deck and inserting his torso into the silly pen without maintaining a safe hold on the crate … "
28 The conclusion reached by the learned trial Judge that the respondent was routinely inserting his torso into the silly pen without maintaining a safe hold on the crate is an erroneous one, at least in relation to the accident in question. The respondent made it clear that when he opened the outer gate on the silly pen, he did so with his left hand whilst hanging on to the side of the crate with his right hand. His feet were safely anchored on the kick-plate.
29 The learned trial Judge went on to say (at [96]):
"This unsafe system of work was sufficiently common place, as proven by the evidence of Mr Symington, Mr Hindmarsh and the plaintiff, to warrant the defendant being aware of the possibility that the plaintiff may use it. The defendant should have then specifically warned the plaintiff of the dangers of doing so and instructed or trained him in a system of work that avoided that unsafe system. Such a system may have been not to attempt to empty the silly pen from the outside of the crate, but rather to get inside the crate to remove the sheep, or to remove his dog and wait until it and the sheep had rested before recommencing the task or not to use the silly pen when transporting wethers. It could have also involved instructions to the plaintiff to ensure that a three point hold was maintained on the crate at all times whilst he was working on the outside of the crate."
(Page 16)
30 Counsel for the appellant criticised the conclusions reached by the learned trial Judge as to what may have been appropriate in a safe system of work and described them as speculative. However, it seems to me that the learned trial Judge was simply suggesting some commonsense measures that might have been appropriate. To the extent that her Honour thought that the respondent was not maintaining a three-point hold, she was wrong.
31 The learned trial Judge then concluded that there were alternative safer systems of work which could have been utilised by the appellant. In particular, she accepted the evidence of Duncan Symington to the effect that, since the respondent's accident, he had changed the system of removing sheep from the silly pen. His company had conducted training sessions to keep workers informed of correct procedures to minimise accidents and, in particular, trained drivers to use the gate on the side of the silly pen as a last resort. He was in favour of the use of convertible crates and was also looking at the possibility of the use of a harness system.
32 The learned trial Judge considered carefully the evidence in relation to the use of convertible crates. She found that convertible crates were not in common use in the industry in Western Australia in 1995 and although some have since been introduced, they are not the common design of crate in use in Western Australia. This is in contradistinction to other Australian States, but her Honour was unable to find that the appellant, in using fixed-deck crates as opposed to convertible crates, was in breach of his duty of care to the respondent. She did, however, add (at [104]):
"However, if, as in this case, an employer chooses to use fixed deck crates that places a responsibility on the employer to ensure that the system of work used by employees is such as to alleviate or reduce the risks inherent in the use of fixed deck crates. It is in this respect that the defendant has failed in its duty of care to the plaintiff."
Grounds of appeal on liability
33 There are five grounds on which the appellant appeals against the learned trial Judge's conclusions on the issue of liability. Summarised, they are:
(1) The conclusion that the appellant was in breach of its duty of care to the respondent on the basis of failing to instruct
(Page 17)
- or train in a safe system of unloading sheep and to warn of the danger of injury arising from unloading sheep in the manner he did was wrong in law and fact because of the findings that the respondent was an experienced worker, the risks of injury were obvious and he was fully aware of them.
- (2) The conclusion that the appellant had failed to warn the respondent to ensure that he maintained a three-point hold on the side of the crate at all relevant times was irrelevant to the cause of the accident because the evidence was that the respondent was maintaining such a hold.
(3) The finding that there had been a breach of duty based on failure to adopt a training programme for the respondent based on the evidence of a system of training introduced by Symington after the respondent's accident was irrelevant as a matter of law and irrelevant as to causation because entry to the silly pen in the manner performed by the respondent remained an option to Symington's workers if all else failed.
(4) On all the evidence, the system of unloading sheep as performed by the respondent was, and remains, standard industry practice and no other practical means of unloading was demonstrated to be available.
(5) There was no evidence that, had any warning been given to the respondent by the appellant, he would have acted in any way differently from that in which he did, and consequently there was no evidence that the breach of duty as found by the learned trial Judge was causative of the respondent's accident.
34 There is a cross-appeal by the respondent. The grounds are:
(1) The learned trial Judge erred in concluding that the appellant was not required to provide the respondent with a safety harness.
(2) The learned trial Judge erred in concluding that the appellant did not breach its duty of care by refusing and/or failing to use convertible crates as opposed to fixed crates.
35 Detailed particulars of each of these grounds is given, but it is unnecessary to repeat them.
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General principles
36 In Czatyrko v Edith Cowan University (2005) 214 ALR 349, the High Court recently restated the basic principles upon which employers' liability rests. At [12], the Court said:
"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 (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J). If there is a real risk of an injury to an employee in the performance of a task in a 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 (Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342 per Taylor J). The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work (Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342 - 343 per Taylor J; Da Costa v Cockburn Salvage & TradingPty Ltd (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 500 per Kirby J)."
37 These principles are so well-known that it is unnecessary to quote the passages to which reference is made. It is sufficient to add that whilst a reasonably prudent employer would have taken reasonable steps to avoid exposing its employee to unnecessary risks of injury, the degree of care and foresight from such an employer will necessarily vary with the circumstances of each case: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.
38 What is in issue in this appeal is whether there was a failure on the part of the appellant to supervise, observe and/or train the respondent in a safe system of work for the task in which he was engaged. It was no answer in the present case for the appellant to say that the respondent was an experienced sheep carter. An employer cannot disclaim responsibility for devising a safe method of work merely because his workers are experienced. This was not a case where the job was so simple and risks were so obvious that the activity was such that the man on the job could ordinarily decide what to do: O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230. It was not a case in which any problems which arose were capable of resolution by "the
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- application of common knowledge": see Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 per Taylor and Owen JJ at 368.
39 In the area of employer's liability, there is a duty cast upon the employer to protect his employee against even obvious risks. It was formulated in Tomlinson v Congleton Borough Council [2004] 1 AC 46 by Lord Hoffman at [46] as follows:
" … A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk … "
40 The evidence in the present case established that the appellant had given the respondent no instruction at all in relation to the system of work in which he was to engage. It left it entirely to him to follow the practice that he had observed in the industry.
41 It was insufficient for the appellant to say that because the respondent's father and, no doubt, others before him had used the very same system of work that the respondent was using, there was no obligation to give the respondent any instruction. What is reasonable in terms of instruction to an employee is to be influenced by current community standards and there are higher community expectations of the reasonably prudent employer today than there were decades ago: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 per Mason, Wilson and Dawson JJ at 309. Accident prevention is "unquestionably one of the modern responsibilities of an employer": McLean v Tedman (1985) 155 CLR 306 at 313.
Conclusion on liability
42 In my view, it was open to the learned trial Judge to find that the appellant had breached its duty to take reasonable care, as the respondent's employer, to avoid exposing the respondent to the unnecessary risk of injury in the course of his work as a sheep carter. It failed to take reasonable care to avoid the risk of injury to him in an occupation which carried with it inherent risk. It provided no instruction to him about his work. That instruction should have included advice to avoid using the silly pen in the circumstances in which he did.
43 As the learned trial Judge found, there were other alternatives open. The dog could have been rested to ensure that, when it was able to do so, it could get the sheep out of the silly pen. More attempts could have been
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- made with the prodder. It is true that time may have been lost, but industrial safety cannot be measured by considerations of time. The respondent was not engaged in an urgent task. No doubt, he had a time schedule with which to comply, but he had obstinate sheep and they refused to move from the silly pen. It was incumbent upon the appellant to instruct the respondent in these circumstances to take special care and to use the gate to the silly pen only as a matter of last resort. This is what Symington had concluded in relation to his business and it was what he was ensuring his workmen understood. Instead, in this case, the appellant did nothing to instruct the respondent in any shape or form, but left him solely to his own devices to offload the sheep, utilising whatever procedure he saw fit. The respondent, by his own admission, had been opening the gate to the silly pen and partially entering it "every other day" and "all his life". It was the danger of doing this about which he should have been warned by the appellant.
44 I do not accept the contention in the first ground of appeal that because the respondent was an experienced livestock worker, it was "logically inconsistent" for the learned trial Judge to find that there was negligence based on a failure to train or warn the respondent. It is well established that, where a practice of ignoring an obvious danger has arisen, it is not reasonable to expect a worker to take the initiative in devising precautions, but the duty of the employer to devise a suitable system and to warn the worker of unexpected risks and instructing him how best to secure himself against injury: Wilson v Tyneside Window CleaningCompany [1958] 2 QB 110. The first ground of appeal therefore fails.
45 The second ground of appeal has been made out in the sense that the learned trial Judge was wrong to have concluded that there was a failure on the part of the respondent to maintain a three-point hold as he opened the silly pen gate. However, of itself, this erroneous conclusion does not, in my view, vitiate the conclusion reached by the learned trial Judge in relation to the breach of duty of care of the appellant.
46 The third ground of appeal must, in my view, fail. I do not accept that the evidence of the witness, Symington, was "irrelevant as a matter of law". The authority relied upon by counsel for the appellant does not, in my view, establish this proposition. It is Wagner v Midland Junction Abattoir Board [1963] WAR 84 per D'Arcy J at 87, where his Honour said:
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- "Nor do I overlook the inadmissibility of evidence of preventive action taken by an employer against recurrence of injury to his workman in proof of his negligence in not having taken the action before in a case such as this: Hart v Lancashire and Yorkshire Railway Co (1869) 21 LT (NS) 261. The evidence relating to the installation of a guard as a matter of simplicity shortly after the mishap was however admissible as tending to show the practicability of a reasonable safeguard: Davis v. Langdon (1911) 11 SR (NSW) 149 per Bullen CJ at p 162."
47 D'Arcy J was merely saying that preventive action taken by an employer against recurrence of injury to a workman is not admissible to prove in itself that the employer was negligent. The evidence is, however, admissible to show other practical means that may have been employed to avoid the risk in question.
48 The learned trial Judge expressly rejected allegations of negligence based on the failure to provide a safety harness, the failure to provide suitable ramps and walkways and/or the failure to use convertible crates in lieu of fixed crates. It was not the case (as contended in ground 4) that no other practical means of unloading were demonstrated to be available. Other means were demonstrated to be available, but the learned trial Judge did not consider there had been any breach of duty of care on the part of the appellant in failing to utilise them. Her Honour did accept that the method of unloading being utilised by the respondent was standard industry practice, but she held that more could have been done by the appellant than was done in terms of instruction, namely, instruction to avoid use of the gate to the silly pen unless absolutely necessary and as a matter of last resort. I can find no substance in ground 4.
49 Ground 5 contends that there was no evidence that the breach of duty found by the trial Judge was causative of the respondent's accident because there was no evidence that, had warning been given to the respondent, he would have acted in any way different from that in which he did. However, there was no exploration at trial of what the respondent would have done had he been instructed by the appellant to take more care and to avoid use of the silly pen unless it was absolutely essential to do so. The appellant gave no instruction at all. It does not appear to have turned its mind to the question of instruction. The appellant took the view that, because the respondent was an experienced man, he needed no instruction. It begs the question what he might or might not have done had he been properly instructed.
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50 Counsel for the appellant relies upon Chappel v Hart (1998) 195 CLR 232 per McHugh J at [34], where it was said:
"The foregoing observations lead me to the following conclusions concerning whether a causal connection exists between a defendant's failure to warn of a risk of injury and the subsequent suffering of injury by the plaintiff as a result of the risk eventuating:
(1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved; (Rogers (1992) 175 CLR 479; 109 ALR 625; Nagle (1993) 177 CLR 423; 112 ALR 393);
(2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given; (Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 293 - 4; 145 ALR 294; Daniels v Anderson (1995) 37 NSWLR 438 at 528);
…
(6) the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff."
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51 Application of these principles to the present case does not help the appellant. The respondent did prove that the appellant had breached a duty to warn of a risk and the risk eventuated and caused harm to him. He therefore made out a prima facie case of causal connection. The appellant did not, in evidence, point to anything to suggest that no causal connection existed. In particular, it did not establish that the respondent would not have acted on a warning. Nor did it establish that no alternative course of action would have eliminated or reduced the risk of injury. There was evidence to the contrary, namely, that by warning carters to avoid using the silly pen gate at all possible costs, the risk of injury could be avoided. In my view, ground 5 also fails.
Cross-appeal
52 The learned trial Judge carefully analysed and weighed up the expert evidence on the issues of use of a safety harness and/or use of convertible crates. I have already referred to the conclusions her Honour reached. These conclusions were, in my view, clearly open and supported by expert opinion. It was for the learned trial Judge to determine what opinion was acceptable. The respondent has not, in my view, demonstrated that the conclusions reached by the learned trial Judge were wrong and should be reversed. I would therefore dismiss the cross-appeal.
Contributory negligence
53 The appellant contended that if it was negligent, the respondent caused or contributed to his loss or damage by his own negligence, pleading that:
(i) he knew or ought to have known by reason of his experience that if he inserted the upper half of his body into the stock crate, he would put himself into a potentially dangerous position;
(ii) he knew or ought to have known that he should have approached the sheep inside the stock crate and used the electric prodder or the sheep dog;
(iii) he opened the side gate of the stock crate when he knew from experience this was not a safe practice because sheep might charge at him; and
(iv) he knew or ought to have known by reason of his experience that the action he took was unnecessary and potentially unsafe.
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54 The learned trial Judge concluded that the respondent had "deliberately and not inadvertently employed the relevant system". She said the question was whether in the circumstances when he did so he failed to take reasonable care for his own safety. Her conclusion was (at [108] - [109]):
"Although reasonableness is an objective test it must be judged in the light of the known circumstances. These, in my view, include the fact that the defendant had not provided any warnings, instruction or training in relation to the appropriate safe system of work, that the plaintiff had seen other workers, including his father, employ the same system and it was also a system which Mr Symington sometimes used. Further, although as I have found there were other safer systems to employ, those other systems involve some risks and the plaintiff had been left to his own devices to work out the safest system for himself.
Against the background of these circumstances, it has not been proven that the plaintiff was contributorily negligent in opening the external gate of the silly pen and leaning into the silly pen in an attempt to unload the sheep."
55 In my view, this conclusion was open. This was not a case in which the respondent disobeyed any direction or warning from the appellant. No direction or warning had been given to him (see Czatyrko v Edith Cowan University (supra) at [18]). Further, the respondent was clearly at the end of his tether trying to get the remaining two sheep out of the trailer, and what he did was nothing more than "mere … misjudgment": Bankstown Foundry Pty Ltd v Braistina (supra) at 310. His conduct was not, in my view, negligence which rendered him responsible in part for the damage he sustained. I would dismiss the appeal insofar as it contests the conclusion of the learned trial Judge in relation to contributory negligence.
Damages
56 The appeal against damages contends that the learned trial Judge erred in her assessment of damages in the following respects:
(1) In assessing past loss of earnings and past loss of superannuation on the basis of a total loss of wages from the date of the accident until 1998, all of 2001, and an
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- allowance of 65 per cent of the loss for the balance of the period between the accident and trial.
- (2) In allowing future loss of earning capacity and loss of future superannuation entitlements in circumstances where her Honour failed to identify what capacity it was which had been impaired or lost and what financial loss had been occasioned as a result.
(3) In allowing damages for past and future gratuitous services by making allowances for services in respect of which damages for gratuitous services are not payable.
(4) In wrongly assessing future travelling expenses.
(5) In wrongly ordering reimbursement of workers' compensation payments to the extent of $119,159.92.
Loss of earning capacity
57 The appellant accepts the findings of the learned trial Judge in relation to injuries and disabilities. They were that the respondent had sustained a number of injuries and disabilities prior to the accident of 13 December 1995 and a number of injuries and disabilities which were subsequent to that accident and wholly non-accident-related. The specific injuries which her Honour found to be accident-related were injuries in relation to the left ankle, right foot, right ankle and left shoulder. Her Honour found disabilities to have resulted from these injuries. She said:
"The plaintiff has also suffered a considerable loss of bodily function in that he has a significantly decreased function of his left foot and ankle, right foot and ankle and left shoulder. However, I acknowledge that with respect to the right foot and the left shoulder the loss of bodily function only occurred after a significant period of time."
58 The injuries and disabilities which the learned trial Judge found to be unrelated to the motor vehicle accident involved the cervical spine, thoracic spine, lumbar spine, right shoulder, right hip and both knees.
59 In relation to the left shoulder disability, her Honour concluded that the injury had been aggravated by an incident in which he pushed an auger whilst delivering a load of superphosphate in Ravenswood on 22 June 1996. The auger was a grain auger which had to be shifted continually towards the centre of a mound of lupin in a trailer. Whilst
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- pushing this auger with his arms outstretched at about shoulder height the respondent suffered an injury. Her Honour also found that a subscapular bursitis was unrelated to the accident, but a condition which would have been aggravated by the shoulder injury.
60 Having reached these conclusions the learned trial Judge found that the accident-caused injuries and disabilities had nevertheless diminished the respondent's earning capacity. As a further complication, her Honour found that the respondent had suffered significant problems with his knee since 2000. Taking into account the medical evidence, she concluded that his current knee problems would prevent him from carrying out his pre-accident employment in that it would be unsafe for him to climb up and down sheep crates. However, the knee problems were not such as to prevent him from carrying out some truck driving work or more sedentary occupations. Her Honour concluded, however, that the respondent would not be truck driving or driving for any distance due to back and neck problems which were not accident-related. Those back and neck problems would be aggravated by truck driving or driving any distance.
61 The learned trial Judge concluded that, had it not been for the accident, the respondent would still be working, but not carting livestock or doing any other demanding manual labour. She considered the accident-caused injuries to have been and to be continuing to be productive of economic loss, although those injuries and the resultant disabilities were not the sole cause of his current economic loss. She held:
"It was and is the cause of the loss of income from a significantly less physically demanding job than livestock carting and, certainly, full time truck or car driving. Thus it is the predominant cause of his loss of income but the non fall related injuries and disabilities had also diminished the plaintiff's earning capacity and would have been productive of economic loss too."
- Her Honour then went on to measure the extent of the respondent's economic loss in the following terms:
"Consequently I consider that the past economic loss due to the fall can be calculated by allowing the plaintiff his claim in full up to and including 1998. Further I accept that he should be allowed his claim in full for 2001, as it was in this year that he had surgery on his left shoulder. This would have significantly reduced his earning capacity due to the fall even further for that
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- year. For the remaining years I allow 65 per cent of the claim. Accepting the figures and deductions agreed to by the parties, this results in a figure of $139,235.40. Allowing interest on this sum at three per cent for eight years, the award for past economic loss is $172,651."
62 The appellant submits that the learned trial Judge went about the assessment of economic loss in an erroneous way. It submits that the so-called "but for" test utilised by her Honour was wrong. This submission is correct, in that the "but for" test in relation to causation has been held not to be a definitive test of causation. In March v E & MH StramarePty Ltd (1991) 171 CLR 506 Mason CJat 515 said:
"Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, eg Fleming, Law of Torts, 7th ed (1987) pp 172-173; Hart and Honore, Causation in the Law, 2nd ed (1985) p 110. It is said that, in determining this second questions, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgement has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR 268 at 277 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [ie, causation] is not susceptible of reduction to a satisfactory formula' ((1954) 91 CLR 268 at 278)."
63 The question for her Honour was to determine what earning capacity the respondent had lost and to what extent it was productive of financial loss. In Graham v Baker (1961) 106 CLR 340 at 347 Dixon CJ, Kitto and Taylor JJ put it this way:
"… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss."
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64 More recently, in Husher v Husher (1999) 197 CLR 138 at 143 Gleeson CJ, Gummow, Kirby and Hayne JJ reiterated this by saying:
"If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment.
Since at least Graham v Baker (1961) 106 CLR 340 it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss' (Graham v Baker (1961) 106 CLR 340 at 346 - 347, per Dixon CJ, Kitto and Taylor JJ). But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
65 Applying these principles, it is difficult to see how the learned trial Judge fixed on an allowance for economic loss for the period from the date of the accident until and including 1998; for the full year of 2001, and by way of an allowance of 65 per cent of the claim for future loss of earning capacity.
Past economic loss
66 The allowance of a past economic loss was based on a total incapacity for work from the date of the accident until 1 July 1998 when the respondent commenced a mail run. However, this allowance is complicated by the fact that during this period, the respondent had returned to do some work with the appellant and within that period, he suffered injury when pushing the auger. Her Honour concluded that it was difficult "solely on the history of the auger incident to determine which of the injuries then kept him out of the workforce," but reached the view that, because of difficulties with the left ankle and surgery on that ankle in September 1997, he was unable to return to the workforce until some time in 1998. With great respect, this assessment does not seem to
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- disentangle the extent to which the accident-caused injuries actually interfered with the respondent's capacity to work, as distinct from other non-accident-related injury. Further, there was the question of the extent to which from mid-1997 the respondent's neck and back disabilities would have precluded him from working.
67 The allowance for past loss of earning capacity for the year 2001 is also difficult to understand because at that time, the respondent had a combination of accident-caused injuries, together with knee problems and neck and back disabilities. The knee problems were found to have commenced in 2000, although the learned trial Judge considered that those problems would not have prevented the respondent from carrying out some truck driving work or more sedentary occupations. The neck and back problems were such that truck driving or driving any distance would aggravate those disabilities and thus preclude any driving occupation. It was not clear what else the respondent could have done with the combination of accident-caused disabilities, knee disabilities, and neck and back disabilities that he had. Indeed, he had tried work with Australia Post in the year 1998, but only worked from July until December "due to numerous physical complaints", some of which her Honour found to be related to the accident and others which she did not.
68 The allowance of 65 per cent of the claim for past economic loss from the end of 2001 until the time of trial led to an award of $139,235.40. Where the calculation of 65 per cent came from is unclear. No reasons were given as to why that percentage was selected and, in light of the findings, it is impossible to fathom a reason for it.
Future economic loss
69 The award for future economic loss was based on the following conclusions reached by the learned trial Judge:
(1) Had it not been for the accident-caused injuries, the respondent would still be in employment although not carting livestock, shearing or driving trucks.
(2) The accident-caused injuries had rendered the respondent currently unfit for most of the positions that he could have obtained given that he had the other disabilities to which I have referred and which were unrelated to the accident.
(3) The accident-related disabilities had made the respondent a "very unattractive employment prospect for an employer".
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- (4) It could not be said that the non-accident-related disabilities of themselves would have made the respondent unemployable.
(5) The appellant had not called any evidence as to the likely income that the respondent could have earned were it not for his accident-caused disabilities.
(6) The respondent assumed that were it not for the accident, he could have continued to have earned his pre-accident income, but this was inconsistent with the finding that the non-accident-related injuries and disabilities would, by the time of trial, have curtailed the respondent's earning capacity in any event.
70 Having reached these conclusions, the learned trial Judge said that, doing the best she could to reflect the various findings, she would calculate future economic loss on the basis that the accident-caused injuries and disabilities were and would in the future, be the cause of 65 per cent of the respondent's economic loss. The figure arrived at was reduced by 5 per cent for contingencies because there was a "realistic possibility that his earning capacity would have reduced because of increasing degeneration in his spine or because of another accident". The end result was an award of $302,838.05.
71 I accept the appellant's submission that there was no obligation on the part of the appellant to call evidence as to the likely income that the respondent could have earned were it not for his accident-related injuries. The onus remained at all times upon the respondent to prove that the accident-caused injuries and disabilities were productive of economic loss. He was obliged to prove that even with the various disabilities he developed, which were unrelated to the accident, he would still have been capable of work had it not been for the accident-caused disabilities.
72 Although the learned trial Judge considered that the permanent disabilities which had resulted from the accident had made the respondent a very unattractive employment prospect for an employer, it seems on any view of it that the other disabilities of themselves made him an entirely unattractive employment prospect.
73 There was evidence in the form of a statement tendered by the appellant which showed that there were employment opportunities in the Kojonup region which included positions as a store person, service station operator, bar attendant and shop assistant. If the respondent had been able to secure work in any of these positions, he would, as at May 2000, had
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- been in a position to earn between approximately $24,000 and $31,000 per annum working on a full-time basis. Whilst the appellant put this material forward, its basic submission was that the respondent was, in any event, totally unemployable by reason of disabilities occasioned otherwise than as a result of the accident. The material did, however, reveal what basic occupations in Kojonup might pay in the event that the respondent was successful in obtaining one.
74 There was evidence before the learned trial Judge from two well qualified occupational physicians. They were Professor Andrew Harper and Dr Andrew Marsden. Professor Harper was of the view that the respondent's knee problems would prevent him from occupations which involved climbing, carrying and sitting in one place for a long period of time, thus preventing him from carrying out his pre-accident employment and affecting his ability to carry out all manual jobs. Professor Harper was also of the opinion that the low back pain would prevent the respondent from doing the same type of work and the neck pain would prevent him from sitting in a static position. It is difficult to see what occupations might therefore have been available to the respondent even if he had not suffered the accident-caused disabilities.
75 Dr Marsden was of the opinion in 1997 that the respondent was permanently unfit to operate a sheep truck as a result of his accident-caused disabilities and was permanently unfit for shearing. He did, however, consider that the respondent could operate a simple grain loading and unloading truck and undertake work which did not involve standing on stairs or rungs of a ladder or frequent climbing. He could not operate a fork-lift, but would be able to operate some farm machinery - but not plant machinery such as dozers, front-end loaders or graders. The learned trial Judge noted that Dr Marsden's opinion was that "from a strictly foot and ankle point of view on the left side he saw no reason why he (the respondent) should not be able to work in (any of these capacities)".
76 By the time of trial, it was Dr Marsden's opinion that had the accident not occurred, the respondent could have worked carting livestock for approximately 10 years but due to the vigorous nature of that work, he would have then ceased it and commenced driving trucks carrying goods such as bulk grain. This conclusion ignored, however, the other disabilities. In relation to those, Dr Marsden considered that they, taken together with the respondent's accident-caused disabilities, made him "effectively permanently unemployable".
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77 All of this presented a very complex economic loss claim. It was for the respondent to disentangle the various injuries and disabilities and establish how it was that the accident-caused disabilities had resulted in a loss of earning capacity as distinct from the other disabilities from which he suffered. In Purkess v Crittenden(1965) 114 CLR 164 Barwick CJ, Kitto and Taylor JJ at 167 said:
"We do not regard (Watts v Rake (1960) 108 CLR 158) as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant's negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him."
- At 168, their Honours added:
"It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
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79 The learned trial Judge recounted the opinions of the occupational physicians, but, in my view, failed to identify from the evidence how the accident-caused disabilities had, or to what extent they had, rendered the respondent incapable of employment when regard was had to the other progressive conditions from which he suffered. To take a figure of 65 per cent of economic loss based on the loss of earnings of a sheep carter ignored the fact that there was no way that the respondent could have engaged in the occupation of sheep carting irrespective of the accident-caused disabilities. His non-accident-related disabilities simply precluded him from that occupation.
80 Further, the projection of the loss through to a retirement age of 65 years overlooked the fact that Dr Marsden had said that if one ignored all other disabilities of the respondent, had he not been injured in the accident he would have worked carting livestock for only about 10 years, following which the vigorous nature of the work would have necessitated that he commence driving trucks carrying goods such as bulk grain.
81 The learned trial Judge's assessment of both past and future loss of earning capacity is thus flawed. It is one thing to adopt a broad-brush method of assessment of damages and another to take an arbitrary figure of 65 per cent of the loss of earnings as a sheep carter until the age of 65 and to allow that sum by way of assessment less a small deduction for contingencies. In Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658, Barwick CJ warned against "disarming appearance of introducing some mathematic accuracy into the assessment of (compensation)" pointing out that:
"… to take the present value of a regular weekly wage paid continuously for the estimated working life and then attempt to discount that figure to allow for the many factors of which it takes no account is not to my mind a satisfactory course to take".
82 In my view, the assessment of damages for both past and future economic loss cannot stand and grounds 6 and 7 of the grounds of appeal which deal with those assessments are thus made out.
Gratuitous services
83 The appellant challenges the award of $19,000.82 for past gratuitous services and $20,896.96 for future gratuitous services. The challenge is based upon the contention that the learned trial Judge, having correctly stated the law to be that gratuitous services are only to be awarded in
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- respect of accident-caused inability of the respondent to provide those services for himself, then failed to apply that principle and awarded damages for services rendered by various persons including communal and household benefits, grandparent duties and the like.
84 It is well established that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of that person for those services. A plaintiff in an action does not have to show that the need is or may be productive of a financial loss and accordingly, damages are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided or by reference to income foregone by the provider of the services, but, generally, by reference to the market-cost of providing such services: Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327.
85 There is an important qualification to the entitlement of a plaintiff to damages for gratuitous services when provided in or about the matrimonial home by a husband, wife, partner or by relatives. In Van Gervan v Fenton, it was put by Deane and Dawson JJ at 343 - 4 as follows:
"The assessment of damages for personal injuries in a negligence action is not an exact science. It must always be governed by considerations of practical common sense in the context of the circumstances of the particular case. It may be that, if the appellant had not been married, it would have been reasonable, for the purposes of assessing damages, for him to have continued to live at home and to have employed the services of a seven-day-a-week live-in housekeeper to attend to his accident-caused needs during the period of seven and a half years following the trial. The facts of the matter were, however, that the appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidents of that relationship and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the appellant's accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into 'services' rendered or to be rendered by the other spouse even if
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- they obviate a need for such 'services' which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff."
86 In Newman v Nugent (1992) 12 WAR 119, following Griffiths v Kerkemeyer and Van Gervan v Fenton, Franklyn J at 123 said:
"It is clear that that sum was awarded for the services provided by the father and daughters since the accident in respect of domestic and household work previously performed by the respondent for the benefit of the whole household. It seems probable, having regard to his Honour's reasons, that it included in some part of the husband's services in the garden to replace such as she might have provided, which might well have been done by way of recreation in any event. The husband did not give evidence. In my opinion his Honour has equated the family's loss of the respondent's services in performing domestic and household duties, chores and activities, both for its communal benefit and for the benefit of specific family members, with an accident-caused need of the respondent for such services to be provided to her, the need arising out of her accident - caused inability to provide such services herself. He has overlooked that the relevant need is her need for services to be provided for herself because of her accident-caused incapacity to look after herself."
87 This passage has particular application to the present case, because the learned trial Judge appears to have made an allowance in the award for gratuitous services for substantial aspects of services provided by various
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- persons for the whole of the respondent's household. Specifically, when dealing with past loss of gratuitous services, her Honour made an allowance for services provided by the respondent's wife for the benefit of the family and "the other members of the family". Allowances were made in respect of a friend who cut and carted wood which was used to heat the family home. Gratuitous services provided by the respondent's father-in-law, which involved sheep killing, wood cutting and caring for children while the respondent and his wife went to medical appointments, were also the subject of compensation. Gratuitous services provided by the respondent's mother-in-law were, likewise, the subject of compensation. These services involved looking after the children, supplying the family with meat and groceries, paying for piano lessons for the children and taking them for polo-cross. Gratuitous services provided by a friend for doing work around the family home and for driving the respondent from Kojonup to Perth and back, were the subject of an allowance. Another allowance was made in respect of work done by a friend who helped with the provision of decking for the family home and spent some time cutting and carting wood for the family. Finally, there was an allowance in respect of the respondent's brother's work "coating the house".
88 It seems to me that all of these so-called "gratuitous services" required more detailed analysis. The learned trial Judge allowed some of the claims in full and reduced others, but without allocating any particular reason for doing so. They seem to have been intuitive assessments.
89 When dealing with future gratuitous services the learned trial Judge wrongly categorised them as "loss of future paid services". In truth, however, the services allowed appear to have been future gratuitous services because her Honour made an allowance based on the provision by the respondent's wife of services of two hours per week. Her Honour said, "Taking all these matters in to account, I am satisfied that the plaintiff will need two hours per week of future paid services." Use of the term "paid services" clearly meant gratuitous services.
90 How her Honour arrived at the two hours per week is unclear, but included in the services were the provision of driving duties to drive the respondent to and from some "medical appointments" and "daily activities such as hanging out his washing that he cannot perform". It seems obvious that if the respondent had not been injured and been working as a sheep carter, he would not have been hanging out his washing on a day-to-day basis. This was not a need which arose out of an accident-caused inability to provide "such services" for himself: Newman
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- v Nugent per Franklyn J at 123. Further, it is not clear for how many years the learned trial Judge allowed the two hours per week of "future paid services". The gross sum allowed was $21,996.80, from which 5 per cent was deducted for contingencies. No calculations are set out to indicate how the ultimate figure was arrived at.
91 I am of the view the appellant has made out grounds 8 and 9 in that the awards for past and future gratuitous services appear to be inflated by the inclusion of allowances for services provided other than for an accident-caused need of the respondent. Further, there is no indication of the period for which the calculation for future gratuitous services was made.
Future travelling expenses
92 The award for future travelling expenses was $7612.44. It included $2537.49 for the cost of travelling from Kojonup to Perth and return for a surgical procedure. Unfortunately, the schedule which was provided to the learned trial Judge contained a miscalculation. The cost of one visit to Perth and return for the operative procedure was $168, but it was calculated on a continuing annual basis. The award was thus inflated by $2369.49 for this item.
93 Although ground 10 of the grounds of appeal challenges the allowances for the cost of travel for surgery and the cost of travel to visit each of two specialists, the submissions challenge only the cost of travelling for surgery, where there was an over-allowance of $2369.49.
94 There was also an allowance for the respondent to visit the orthopaedic specialist, Mr Peter Honey. This was claimed at $2537.49 and claimed by way of one visit per annum. A similar claim was made in relation to the orthopaedic specialist, Mr Gerard Hardisty. Just what allowances were made is unclear. The learned trial Judge accepted that allowances should be made for the expenses of travel to doctors for treatment of the respondent's shoulder and ankles respectively and these two specialists appear to have had the separate medical disciplines to treat the two disabilities. It appears that an allowance was made for the cost of an annual visit to each of these two doctors in Perth. The cost of a visit to a general practitioner in Katanning was disallowed because there was a general practitioner in Kojonup.
95 It is unnecessary to resolve the question whether or not the visits to the two specialists were properly allowed. There was a very real question as to whether such visits would have been required annually for the rest of
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- the respondent's life. No deduction appears to have been made for contingencies in that respect. However, it is presently unnecessary to consider the matter any further.
Workers' Compensation Reimbursement
96 The final ground of appeal (ground 11) contends that there was an error made by the learned trial Judge in the allowance for reimbursement of expenses paid by the workers' compensation insurer. An allowance was made for reimbursement for $119,159.92. This was less than the amount claimed, which was $176,692.88. The learned trial Judge allowed the claim for workers' compensation payments and made an award for tax payable in respect of those payments, but declined to allow certain payments which the respondent had failed to prove related to the injuries and disabilities caused in the accident.
97 The ground of appeal contends that the reimbursement was wrong in law and in fact because the evidence disclosed that the payments had continued until April 2000 and:
(a) on the basis of the learned trial Judge's findings only 65 per cent of the payments should have been allowed from 1 January 1999 until cessation of the payments; and
(b) in the alternative, if the respondent had established that past loss of earnings were a consequence of non-accident-related causes, there had to be an appropriate deduction from the workers' compensation reimbursement allowance to reflect this fact.
98 These submissions are basically correct. The learned trial Judge appears to have overlooked the fact that, even on her findings, there should have been an apportionment of the amount of workers' compensation to be reimbursed.
Conclusion on damages
99 The appellant has made out the grounds of appeal which contest the learned trial Judge's award of damages to the respondent. It is not possible for this Court to calculate what allowance should have been made. One solution to the problem would be to remit the question of damages to the learned trial Judge for reconsideration in the light of this judgment. However, her Honour is now a member of this Court and it would therefore be necessary to remit the action to the Supreme Court if it was to be sent back to her in that way.
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100 At the hearing of the appeal, counsel for each party was asked to endeavour to reach agreement on what questions of damage might properly be the subject of reconsideration by the learned trial Judge on the basis of her findings. By letter dated 18 August 2005, signed by both counsel, the Court was advised that counsel considered that course "untenable". It was submitted that the only proper course was for the entire issue of the assessment of damages, under all heads, to be remitted to the District Court for assessment by another Judge. It is unnecessary to set out the reasons which were advanced as to why this is considered to be the only appropriate course of action, but they included the submission that there are credibility issues which must necessarily be decided before there can be a final determination of all aspects of the assessment and there was an absence of critical findings as to when certain symptoms, both accident-related and non-accident-related, impacted upon the respondent's work capacity.
101 In these circumstances, I am of the view that the only course open is to allow the appeal on grounds 6 to 11 of the grounds of appeal, to set aside the award of damages, and to remit the action to the District Court in order that damages may be reassessed according to law.
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