The City of Prospect v Jaspers - [2012] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
THE CITY OF PROSPECT v JASPERS
[2012] SASCFC 85
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice David)
18 July 2012
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Appeal against award in plaintiff's favour for $356,340 as a result of injury sustained whilst performing work for defendant.
Plaintiff injured whilst lifting compactor onto the back of a truck - whether plaintiff liable for contributory negligence - trial Judge correct in determining that no evidence existed to support a finding that the presence of dolomite on the back of the truck in some way contributed to the plaintiff's injury.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
Whether sums awarded for past economic loss and loss of future earning capacity were manifestly excessive.
Held: Appeal dismissed - trial Judge erred in using gross figures in lieu of net figures one year after injury but differential amount not so significant to render the award manifestly excessive - trial Judge correct in not treating subsequent knee injury as a negative contingency - subsequent injury referable to the injury the subject of the claim - no double compensation from worker's compensation payments in respect of second injury - trial Judge correctly took into account circumstances surrounding plaintiff's security work.
Civil Liability Act 1936 (SA) s 34, referred to.
Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301; Robinson v Riley [1971] 1 NSWLR 403; Metron Medical Australia Pty Ltd v Windahl [2007] VSCA 40; Wardleworth v Green (1996) 66 SASR 421; Fox v Percy (2003) 214 CLR 118; Medlin v The State Government Insurance Commission (1995) 182 CLR 1, applied.
Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147; ACIR v Frosster Pty Ltd [2009] VSC 454; Lindeman Ltd v Colvin (1946) 74 CLR 313; March v Stramare (1990) 171 CLR 506; Murray v Dawson (1996) 24 MVR 244; Bresatz v Przibilla (1962) 108 CLR 541, considered.

THE CITY OF PROSPECT v JASPERS
[2012] SASCFC 85
Full Court: Sulan, Vanstone and David JJ

SULAN J: This is an appeal against a decision of a Judge of the District Court awarding $356,340 in damages to the plaintiff, now respondent, for personal injury.
The respondent, Mr John Anthony Jaspers, was an employee of Maxima, a labour hire company. He was directed to work at the premises of the City of Prospect (‘the Council’), the appellant.
On 8 July 2004, as part of his employment, Mr Jaspers and another worker were required to lift a compactor onto the back of a truck. During the course of this act Mr Jaspers sustained an injury to his back. He sought damages for the injury on the basis that the Council was negligent, and in particular, that it failed to provide a safe system of work.
The Council disputed Mr Jaspers’ claim contending that the injury was not caused by the lift or, in the alternative that the system of work was safe but Mr Jaspers had failed to comply with it. Further, that should the Council be found to be negligent, Mr Jaspers’ damages should be reduced by reason of his contributory negligence.
It was not in dispute that Mr Jaspers had a disc prolapse in his mid-back region. The trial Judge summarised the issues as follows:
1.   How did Mr Jaspers injure his back?
2.   Was the system of work unsafe?
a.   What was the task?
b.   Was the risk of injury foreseeable?
c.   Was Prospect’s response reasonable?
3.   Did Mr Jaspers contribute to his injury?
4.   What is the proper assessment of Mr Jasper’s (sic) damages?
Negligence
The relevant task involved moving a compactor weighing 85 kilograms from the ground to the tray of a truck, a distance of approximately 1 metre. The truck was already loaded with equipment, crushed rock and dolomite. A two man lift was performed to carry out the task. The first 50-100 millimetres of the compactor was placed on the truck and then moved in a snaking motion to get it entirely aboard. This was said to have been difficult due to the presence of the dolomite and crushed rock on the truck. There was approximately 100-200 millimetres of dolomite still on the truck.
The trial Judge was satisfied that Mr Jaspers had sustained the injury whilst moving the compactor from the ground to the back of the truck. She rejected a contention by the Council that the injury was not sustained at that time, or in the manner alleged by Mr Jaspers.
The trial Judge accepted that the evidence demonstrated that the cause of the disc prolapse was the pushing motion as opposed to the lifting motion. She did not consider that the Council should escape liability on the basis that Mr Jaspers’ pleading only related to a pushing motion rather than a lifting motion. She found it artificial to separate the pushing motion from the lift.
The trial Judge found the Council liable in negligence to Mr Jaspers. She considered that a reasonable person in the position of the Council would have foreseen that the task undertaken by Mr Jaspers involved a risk of injury to workers in his position. Not only did she consider the risk of injury to have been reasonably foreseeable but further, that the Council had in fact foreseen it. This was demonstrated by the safe work procedure and risk assessment of a similar process of lifting the compactor onto a bituminising truck that had been conducted.
It was contended by the Council that Mr Jaspers was guilty of contributory negligence. It was put that Mr Jaspers had no regard to his own safety as it was said to have been obvious that pushing the compactor onto a truck filled with 100 to 200 millimetres of dolomite could lead to injuries. The trial Judge found that there was no clear instruction to clean up the dolomite prior to loading the compactor and that if it were so obvious, one might expect it to form part of the safe work procedure. Further, there was no evidence that the presence of the dolomite in the truck was causative of the injury. The trial Judge did not consider that the Council had demonstrated that Mr Jaspers was guilty of contributory negligence at the time the accident occurred. She said:
Further, there is no evidence that the presence of the dolomite was causative of the injury. Mr Morrison’s evidence was that pushing a heavy object was the sort of activity that was likely to cause an injury of the type suffered by Mr Jaspers. There was no evidence that the presence of dolomite made such an injury more or less likely.
In my opinion, there was nothing culpable in the conduct of Mr Jaspers and Mr Thomas. The truck contained some material which may or may not have made pushing the compactor more difficult. Their failure to consider whether that was the case at its highest constituted inadvertence, inattention or misjudgement and no more. I do not consider Prospect has demonstrated that Mr Jaspers was guilty of contributory negligence at the time the accident occurred.
Damages
The trial Judge outlined Mr Jaspers’ work history, including his employment with BHP where he suffered injuries to his left knee and left shoulder. She then addressed general damages for pain and suffering and loss of amenities. She noted that Mr Jaspers’ ability to lead a normal life was significantly impaired by the injury for at least seven days. She assigned a numerical value of 15 to non-economic loss, and awarded Mr Jaspers an amount of $23,840 in damages under this head.
The trial Judge then turned to Mr Jaspers’ lost earning capacity. He was totally incapacitated for work for a period of six months following the injury. Thereafter he returned to work in alternative duties. She addressed the significance of Mr Jaspers’ injury to his right knee which was the result of his participation in a WorkCover rehabilitation programme for his back injury.
The trial Judge noted that the Council should not be liable for the period of time off work owing solely to the right knee injury. She rejected the submission by the Council that the knee injury should be treated as a novus actus interveniens or a negative contingency.
A starting point of gross weekly earnings of $600 was used. Mr Jaspers’ actual earnings were then reduced, to which superannuation at a rate of 8% was then added with a small deduction for contingencies. A final amount of $140,000 for past loss of earning capacity and a loss of employer superannuation contributions was awarded.
Future loss of earning capacity was assessed at $175,000, special damages at $12,500, non-economic loss at $23,840 and future medical expenses at $5000. This amounted to a sum of damages of $356,340.
The appeal
The Council appeals the judgment of the trial Judge in respect of the finding that Mr Jaspers’ was not liable for contributory negligence, and in respect of the sum awarded for past and future economic loss. I will first deal with the issue of contributory negligence.
Contributory negligence
The Council contends that the trial Judge did not apply the same principles in relation to whether or not the Council was negligent, and whether or not Mr Jaspers was liable for contributory negligence. The Council does not contest the finding of the trial Judge of negligence. Rather, it is the contention of the Council that the acceptance of the following evidence of Mr Thomas, Mr Jaspers’ co-worker, is inconsistent with the conclusion that there was no evidence that the presence of dolomite was causative of the injury. Mr Thomas was asked whether any part of the compactor was sitting on any of the material on the flat tray of the truck. He said:
I would say it’s been sitting on the materials because if it wasn’t on the materials it would slide very easily, if it was on the back end of the truck. If I can recall, there was material we had to shove to get it to, to get more of it in. We were pushing it uphill.
The Council submits that this evidence is inconsistent with the trial Judge’s finding that there was no evidence that the presence of dolomite made such an injury more or less likely, and inconsistent with the finding that the action of pushing caused Mr Jaspers’ injury. It is put that the trial Judge did not, therefore, appropriately apply section 44 of the Civil Liability Act 1936 (SA).
Counsel contends that the appropriate test is one of contribution, rather than causation. In this sense, it is argued that Mr Jaspers’ failure to take reasonable care for his own safety and well being contributed, at least in part, to the subsequent injury, by Mr Jaspers’ failure to clear a space on the back of the truck in which to place the compactor. It is the submission of the Council that common sense dictates a conclusion that the fact that there existed approximately 100 to 200 millimetres of dolomite on the truck, made the pushing exercise inherently more difficult, contributing to the injury of Mr Jaspers.
It is further submitted that the trial Judge incorrectly characterised Mr Jaspers’ failure to consider whether the presence of the material might make the push more difficult. This was characterised by her, at its highest, as inadvertence, inattention or misjudgement and no more. It is argued that this finding is incongruous with Mr Jaspers’ evidence in cross-examination where it was suggested to him that it was obvious that one would not want to lift the compactor up a hill of material. Mr Jaspers responded that he “just did what everybody else did at the Council” and that if he was to jump on the back of the truck and clear it, it would be time consuming and he would get his “arse kicked”.
Counsel for Mr Jaspers submits that the trial Judge correctly found that Mr Jaspers’ failure to consider whether the presence of the dolomite made the task more difficult constituted inadvertence, inattention or misjudgement. It is argued that although the evidence of Mr Thomas was that the machine would slide more easily if the tray were clear of material, there is no evidence to suggest that Mr Jaspers knew or ought to have known that the presence of dolomite would give rise to a risk of injury.
Counsel points to the absence of any evidence which goes to establishing that the injury would not have occurred had the dolomite been swept away. Counsel for Mr Jaspers called Dr Morrison who gave evidence that the sudden nature of Mr Jaspers’ disc prolapse was consistent with some forcible action, and in particular, that the injury was consistent with pushing an item the weight of the compactor. It was never put to Dr Morrison by the Council that the extra force required to push the machine over the remnant material caused or contributed to the prolapse.
The onus of proof lies with the Council to establish that the alleged negligence of Mr Jaspers contributed to his injury. That is, that the failure to clear away the dolomite prior to executing the lift and push was a necessary condition of the harm that ensued.[1]
[1] Civil Liability Act 1936 (SA) section 34(1)(a).
Mr Jaspers’ actions must be viewed in the context of the Council’s negligence and the system of work generally. In Bankstown Foundry Proprietary Limited v Braistina the High Court relevantly observed:[2]
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to a risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage.
[Footnotes omitted.]
[2] Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301, 310.
In respect of the Council’s complaint, I can find no inconsistency between the trial Judge’s finding that Mr Jaspers’ pushing action caused injury to his back, and the finding that there was no evidence that the presence of the dolomite made such an injury more or less likely. In my view, it may be common sense that the presence of the dolomite in the truck required additional force to be used to load the compactor, but it does not follow, in the absence of any supporting evidence, that the extra force needed contributed to the injuries of Mr Jaspers.
Mr Jaspers was not instructed by the Council to clean up the dolomite before lifting the compactor onto the tray of the truck, nor was there any instruction in the safe work procedure to do so. Further, the Council took no steps to ensure that employees cleaned away materials in the truck prior to exercising a lift.
Mr Jaspers exercised the lift and push with the help of Mr Thomas, who was also employed by Maxima, and working at the Council. Mr Jaspers gave evidence that in his experience it was common that rubbish or materials would remain from prior jobs. Further, that when this occurred, it was usual to identify the best spot to place the machine, as jumping on the back of the truck each time would be time consuming. In my view, the trial Judge was correct to reject the submission that the need to clear away the dolomite was so obvious that no warning was needed.
There is no evidence to support the finding that the presence of the dolomite in some way contributed to Mr Jaspers’ injury. In addition, I can find no culpability in the conduct of Mr Jaspers that supports a finding of contributory negligence. I agree with the trial Judge’s characterisation of Mr Jaspers’ failure to consider the presence of the dolomite as inadvertence, inattention or misjudgement at its highest. In my view, there has been no misapplication of section 44.
Damages
The Council submits that the trial Judge erred in awarding damages in the sum of $140,000 for past economic loss and superannuation, and $175,000 for future economic loss and superannuation.
Background
Mr Jaspers was 43 years of age at the time of judgment delivery. He attended school until age 16 when he left to become a trade’s assistant making metal security doors. He obtained a position with BHP in Adelaide, working as a folder operator. Whilst at BHP he suffered injuries to his left knee and left shoulder. Mr Jaspers gave evidence that neither BHP injury continued to trouble him to any great extent, with the exception of aches in the cold months. He said that his injuries did not interfere with the work he undertook following his resignation from BHP until the subject injury.
Following his employment with BHP he worked in a number of positions principally in a labour hire arrangement. These positions involved driving trucks on the northern expressway project and operating other heavy machinery such as a dump truck operator and roller.
The trial Judge found that Mr Jaspers was totally incapacitated for work for a period of six months following the injury. She accepted that Mr Jaspers is permanently incapacitated for general labouring duties, truck driving and heavy machinery operation by reason of his back injury.
Mr Jaspers suffered injuries to his knee whilst participating in a WorkCover rehabilitation programme for his back injury. While undertaking duties as part of a work hardening program at Barry’s Hardware in mid-2005, he submitted a notice of injury and a claim for workers’ compensation to QBE on 20 April 2006, stating that he suffered a bilateral knee injury in August 2005. In a report dated 20 November 2006, Dr Paterson said that Mr Jaspers would be totally incapacitated for two to six weeks and then partially incapacitated for an unpredictable period. He noted that Mr Jaspers ‘is almost certainly not going to be fit to return to his previous employment as a labourer.’ Dr Morrison agreed that the right knee injury might be sufficient of itself to preclude Mr Jaspers from undertaking heavy labouring work.
The trial Judge rejected any contention by the defendant at trial that the injury suffered to Mr Jaspers’ right knee should be treated as either a novus actus interveniens or a negative contingency. She summarised his capacity to work as follows:
In this case I have found that Mr Jaspers was able to work as a general labourer albeit with some minor restrictions occasioned by his pre-existing left shoulder and left knee conditions. The back injury caused by the defendant’s negligence precludes him from working in his previous occupations as a general labourer, driver and machine operator. The subsequent knee injury may also preclude him from working in those occupations. No evidence was called to suggest that the subsequent knee injury added significantly to the incapacity caused by the back condition let alone that it was of sufficient gravity to break the causal nexus. Further, no evidence has been called to suggest that the knee injury would have occurred in any event regardless of the back injury.
Mr Jaspers later completed security guard training and commenced employment with Ample Security on a full time basis. His employment commenced on 6 May 2007 and ceased on 23 October 2008. During this employment he worked full time hours with overtime. He left Ample to take up work with Patron Security Services. He worked full time for Patron until 21 December 2008. He then resumed working with Ample on 14 April 2009 where he worked until 7 February 2010 when he terminated his employment. It appears that there were some disciplinary issues concerning Mr Jaspers.

At the time of judgment Mr Jaspers was employed as a crowd controller with Paul Tomney Security. This employment commenced on 31 December 2010. This work is casual, part-time work on Friday and Saturday nights. He works at least 8 hours per week in 2-4 hour shifts at an hotel. On occasion he also undertakes an extra 7 hour shift at the Para Hills Community Club.
The trial Judge noted that since terminating his employment with Ample, Mr Jaspers has not been able to obtain alternative full time employment despite a large number of applications to a range of employers. She observed that the full time work for which he was applying is not in the security industry as the work that industry offers is usually casual rather than permanent and not at ‘family friendly’ hours.
Three issues arose before the trial Judge. The first was the treatment of Mr Jaspers’ pre-existing injuries from BHP to his shoulder and left knee. The trial Judge made clear findings in respect of these injuries. She said:
Mr Jaspers said that neither BHP injury continued to trouble him to any great extent. They ached in the cold months but neither interfered with the work he undertook following his resignation from BHP until the subject injury.
She considered the evidence of Dr Eriksen. Dr Eriksen gave evidence that there appeared to be no muscle wasting in Mr Jaspers’ lower limbs, noting that if a person has significant knee pathology they develop wasting of the quadriceps quite quickly. He considered it unlikely that Mr Jaspers’ had a significant problem with either knee. The trial Judge concluded:
Taking this evidence in conjunction with the fact that Mr Jaspers was able to work without difficulty in a number of occupations from which he is now precluded by reason of his back injury, it is my view that the BHP injuries represented a relatively minor limitation on Mr Jaspers’ earning capacity.
The Council contends that this finding was in error.
The second issue that arose was Mr Jaspers’ subsequent knee injury suffered in mid-2005. The trial Judge made a finding on the basis of Dr Eriksen’s evidence that the injury to the right knee represented only a minor additional impairment. The Council disputes the findings in respect of this subsequent knee injury.
The third issue that arose was Mr Jaspers’ ability to do security work and his resignation from this employment. That is, whether Mr Jaspers failed to mitigate his loss by abandoning the security work.
Past economic loss
The trial Judge selected $600 per week as the starting point for assessing past loss of earning capacity. She regarded this figure as a conservative amount.
A schedule of past economic loss was tendered during the trial based on gross weekly earnings of $600. Further, details of payments made by WorkCover were also tendered. These were based on notional weekly earnings of approximately $700, being reflective of earnings at the Prospect City Council. As noted by the Judge, these did not reflect past earnings as disclosed by his taxation returns or the fact that he was a casual employee who did not necessarily work a full year.
The trial Judge remarked:
As I have indicated I find Mr Jaspers was totally incapacitated for work for a period of about six months after the accident and thereafter partially incapacitated. I reject the defendant’s contention that he did not fully exercise his residual capacity for work by failure to participate in rehabilitation. It is my view that Mr Jaspers has made a genuine attempt to undertake employment following his recovery and that apart from the short period of time that his right knee injury was in the acute phase of injury and treatment he is entitled to compensation for past economic loss.
Some reduction must be made from the gross amount of damages claimed for past loss of earning capacity on the basis that Mr Jaspers was a casual employee who did not necessarily work a full year. It appears clear however that in the period immediately prior to his back injury Maxima had been supplying him with regular work and he was capable of undertaking heavy work at Prospect and similar places of employment. In my view therefore any reduction for this results in only a moderate deduction from the gross sum.
The Council submits that this figure was in error, and that from one year after the injury, that is from 8 July 2005, the Workers Rehabilitation and Compensation Act 1986 (SA) dictates that what is payable is 80% of the relevant amount.[3] Therefore, Mr Jaspers’ was only entitled to a sum of 80% of gross figures, with 20% being based on net figures. It is put by the Council that this amounts to a difference of some $7,800. The Council further submits that the trial Judge continued to assess past loss of earning capacity after 30 June 2010 up until judgment in February 2012. It is argued that as WorkCover ceased weekly payments on 30 June 2010, 100% of net earnings should have been used. It is put that the difference in that period is approximately $4,550. This amounts to a differential of $12,350 in total.
[3] Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147.
Counsel for Mr Jaspers disputes this amount. It is submitted in respect of the first alleged error, that any error would only affect the 2006 and 2007 financial years, and would not render the award manifestly excessive. Further, that the overall assessment of $140,000 is towards the lower end of the range based on an assessment of $600 per week gross and $700 per week gross, and could not be said to be manifestly excessive.
In respect of the trial Judge’s starting point of gross weekly earnings of $600, I accept that the appropriate amount should have been calculated using net earnings. In Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson Lander J observed:[4]
In my opinion, future loss of earning capacity would only be assessed by reference to gross earnings if the award was taxable in the hands of the plaintiff or the receipt of future benefits under the Workers Act exposed a plaintiff to a future taxation liability which needed to be compensated for in the common law assessment. The award is not taxable in the hands of the first respondent so the first respondent’s contention is only good if the first respondent can demonstrate that future benefits under the Workers Act will expose the first respondent to a further taxation liability which he will have to repay.
[Footnotes omitted.]
[4] Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147, 177.
Nevertheless, the question that arises is whether the award is so inordinately high that it ought to be set aside. The appropriateness of an appellate court declining to interfere with a component of a damages award, unless the award as a whole is unduly high or unduly low is well established. In Robinson v Riley Asprey J.A observed:[5]
The award is, I think, a high one and its amount is greater than I personally would have arrived at. But this Court should not set it aside unless it is convinced that it is inordinately high. As Lord Wright said in Davies v. Powell Duffryn Associated Collieries Ltd: “It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
[5] Robinson v Riley [1971] 1 NSWLR 403, 407.
In my view, a differential in the amount of $12,350 would not of itself be sufficient to warrant the interference of this Court to the overall award of $356,340 unless some other error can be demonstrated.
I turn now to the issue of the defendant’s subsequent knee injury. This injury was sustained following participation in a WorkCover rehabilitation programme for the back injury. The trial Judge correctly noted that the defendant should not be liable for the period of time off work owing solely to the right knee injury. However, she concluded that the knee injury was consequent upon the initial injury and therefore no allowance for a negative contingency in respect of that injury should be made. Further she concluded that the knee injury was not due to any intervening event. It is alleged by the Council that this finding was in error.
At trial it was contended by the defendant that by virtue of Mr Jaspers’ BHP injuries (to his left knee and left shoulder) that it was only a matter of time before Mr Jaspers’ would suffer further injuries preventing him from carrying out unrestricted labouring work. In my view, this contention was rightly rejected by the trial Judge. I consider that it was open to the trial Judge to accept the evidence of Dr Eriksen that Mr Jaspers’ was unlikely to have a significant problem with either of his knees.
In order to demonstrate a reduction of damages in respect of lost earning capacity, it was necessary for the Council to prove that the knee injury would have happened in any event, notwithstanding the back injury.
In ACIR v Frosster Pty Ltd[6] a similar issue of whether a subsequent injury related to the first injury arose. In Frosster the plaintiff suffered a back injury after lifting a crate from a box truck. Following his return to work where he undertook light duties, he suffered a subsequent injury to his right shoulder. It was held by Forrest J that there existed a causal link between the original negligence and the subsequent shoulder injury.
[6] ACIR v Frosster Pty Ltd [2009] VSC 454.
The placing of a plaintiff in a position where he or she may suffer a further injury does not of itself establish a causal link between the negligent act and the subsequent injury. In Lindeman Ltd v Colvin, Latham CJ observed:[7]
Where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. But not everything that happens during a period when a man is undergoing medical treatment can be regarded as part of the medical treatment so as to be causally connected with the injury for which he is being treated. A man undergoing medical treatment must have meals, and in one sense the eating of food may be described as an integral part of his medical treatment. But if these meals consist of normal food and he happens to choke himself and die, and the choking had nothing to do with his original injury, there would be no evidence to justify a finding that the death resulted from the original injury and so arose out of his employment. In this case the cause of the fracture was quite independent of the original injury. The bone condition of the respondent was not due to or aggravated by or otherwise affected by the original injury. The act of walking was not necessitated by the head injury. Walking is a normal activity of ordinary life, and when the respondent was walking in the hospital grounds he was only resuming his normal life. There was no causal connection between the fracture and the original injury. …
[7] Lindeman Ltd v Colvin (1946) 74 CLR 313, 317-8.
In March v Stramare the High Court said:[8]
Generally speaking that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent. …
…it is all ultimately a matter of commonsense … and not susceptible of reduction to a satisfactory formula.
[8] March v Stramare (1990) 171 CLR 506, 514-5.
In Metron Medical Australia Pty Ltd v Windahl[9] the plaintiff suffered a work injury and later in the course of physiotherapy treatment for the injury received an electric shock causing profound disability. The Judge concluded that a causal link could be established as the worker had been placed in that position by reason of the negligence of his employer. Arguments of novus actus interveniens and remoteness were rejected. The trial Judge determined that it was a mishap with the Vectrosurge machine that caused the plaintiff’s injury though the negligent employer bore some responsibility in placing him on the physiotherapist’s table. The Court of Appeal affirmed this conclusion, with a further special leave application to the High Court being refused.
[9] Metron Medical Australia Pty Ltd v Windahl [2007] VSCA 40.
In this case, Mr Jaspers’ knee injury was sustained whilst undergoing rehabilitation work at Barry’s Hardware in 2005. He was sent to undertake this work by his WorkCover rehabilitation officer as a response to his back injury. There was no evidence to suggest that the right knee injury would have occurred in any event regardless of the back injury. The subsequent injury to the right knee is factually referable to the back injury. Importantly, the first injury sustained at BHP prior to Mr Jaspers’ back injury, was sustained to the left knee.
There is no reason to interfere with the trial Judge’s acceptance of Dr Eriksen’s evidence that it was unlikely that Mr Jaspers had significant problems with either of his knees following his employment with BHP. The trial Judge was correct in concluding that Mr Jaspers’ knee injury suffered whilst working at Barry’s Hardware was referable to the injury the subject of the claim. The Council has failed to establish that it was either a novus actus interveniens or a negative contingency.
It is further argued by the Council that the trial Judge erred in not deducting earnings from the period after the subsequent knee injury in May 2005 until approximately six months after the surgery on the right knee in December 2006, on the basis of double compensation. It is contended that Mr Jaspers claimed and was paid workers’ compensation for his knee injuries and such compensation is not recoverable by WorkCover from any damages award.
As to the Council’s contention that Mr Jaspers was doubly compensated, counsel for Mr Jaspers points to exhibit P16 which was tendered at trial. The Council, at trial, objected to the tendering of this exhibit. The exhibit constitutes a book of workers’ compensation payments made to Mr Jaspers by WorkCover. It is not possible to determine from this document whether the payments made related solely to Mr Jaspers’ back injury, or to both the back and knee injuries.
In Wardleworth v Green[10] the plaintiff suffered injuries to his left knee as a result of a motor vehicle accident. He was paid benefits under the Workers Rehabilitation and Compensation Act 1986 (SA). He later sustained further injury to the knee following a slipping accident, whilst the original knee injury was still causing significant disability. In assessing damages the trial judge proceeded on the basis that WorkCover would be able to recover from the respondent payments of compensation made to the respondent both before and after the second incident. This issue arose pursuant to section 54 of the Workers Rehabilitation and Compensation Act 1986 (SA) which was in substantially the same terms as the current section.
[10] Wardleworth v Green (1996) 66 SASR 421.
On appeal, it was argued by the appellant that the right to compensation after the second incident arose from the fall, and it was thereby not the case that the right to damages in the first claim, and the right to compensation for the second incident arose from one and the same event. It was contended therefore that the trial judge erred in treating compensation after the second incident as recoverable from damages awarded for the tort the subject of the first incident.
The Full Court of this Court dismissed the appeal. The Court found, on the findings of fact made by the trial Judge, that the compensation paid by WorkCover in respect of the second incident was recoverable from damages awarded in respect of the motor vehicle accident. Doyle CJ considered that although the incapacity was caused by the fall, the trial judge’s findings made it clear that the total incapacity, as a matter of law, was to be regarded as also attributable to the injury sustained in the motor vehicle accident. He observed:[11]
…it is my opinion, as a matter of law, that the proper construction of the Act does not require that in the case of a disability attributable to successive injuries, one of which is a secondary disability, or where a later incident is an aggravation of an existing disability, that the final or resulting disability be attributed exclusively to the later incident so as to attach the liability to pay compensation wholly and exclusively to the person liable to pay compensation in respect of the later incident.
[11] Wardleworth v Green (1996) 66 SASR 421, 436.
He later concluded:[12]
It follows that the worker’s right to compensation under the Act arises from the injury sustained in the motor vehicle accident, which is the event out of which the right to claim damages arises. It therefore follows that the judge was right to conclude that payments of compensation already made and yet to be made by the Corporation were recoverable from the worker under the Act, and that the amount of such payment should not be taken into account in assessing the damages payable to the respondent.
[12] Wardleworth v Green (1996) 66 SASR 421, 436.
As I have said above, WorkCover does not distinguish between any amount paid to Mr Jaspers in respect of the back injury, and any amounts paid if at all, in respect of the knee injury. The right to compensation under the Act arises from the first injury at the Council. I can see no reason to regard any of the payments as relating exclusively to the knee injury. Mr Jaspers’ injury to his back was still continuing at the time the knee injury was sustained. In my view, the knee injury is factually referable to the back injury. It would follow therefore, that the amounts paid would be wholly recoverable.
Further, it is to be noted that the issue of how WorkCover is to classify Mr Jaspers’ injury, and whether or not they choose to seek recovery, ought not to be a matter for this Court to consider, and is a matter for the WorkCover Corporation itself. I consider that the Council has neither proved that Mr Jaspers received worker’s compensation in relation to his knee injury, nor that any of these alleged amounts are not recoverable.
Future loss of earning capacity
The trial Judge characterised Mr Jaspers’ back injury as a substantial interference with his capacity to work. As to whether he would have been able to continue in full time work as a labourer, she considered that there was a reasonable likelihood that other injuries would have precluded him from such heavy employment, including the possible deterioration of his pre-existing knee and shoulder conditions.
The trial Judge was of the view that Mr Jaspers would have continued in full-time employment of some type until age 65, giving allowance for the possibility of full-time work being unavailable for the duration of that period.
Based upon the past loss of earnings of $600 per week gross, she used a net weekly loss of $300 per week to assess future economic loss. This translated into a sum of $208,200. This was then reduced by 25% for adverse contingencies, to which 9% was then added to reflect employer superannuation contributions. This resulted in a calculation of $175,000. The Council contests this approach submitting that at best a small lump sum, based on a loss of chance, should have been awarded for future loss of earning capacity.
The Council submits that the trial Judge made no finding as to whether or not Mr Jaspers was likely to have continued work at Prospect City Council. It is contended that his placement at the Council was only temporary, and that Mr Jaspers gave dishonest evidence on this topic. It is thereby submitted that the trial Judge erroneously used Mr Jaspers’ earnings at the Council as a basis for her calculations. Mr Jaspers gave evidence in chief that he was informed by Mr Haddon that in one to two weeks there would be a permanent job for him. Mr Haddon’s evidence, however, was that at no time did he tell Mr Jaspers that a permanent position would be available.

It is to be noted that no evidence was called by the Council to determine whether Mr Jaspers’ employment at the Council was for a set period or was to continue indefinitely. The trial Judge concluded that in the period immediately prior to the back injury Maxima had been supplying Mr Jaspers with regular work, and he was capable of undertaking heavy work at Prospect and similar places of employment. Further, Mr Thomas, Mr Jaspers’ co-worker, had been offered full time employment by the Council. Mr Jaspers had good reason to believe that he would be offered permanent employment at the Council when a position became available.
Mr Jaspers received WorkCover payments of $1380 per fortnight or $690 per week, which supports his earnings at the Council. By choosing a starting point of $600 gross, the trial Judge discounted Mr Jaspers’ current earnings. I can find no reason to depart from this approach. In my view it was reasonable for the trial Judge to base her calculations on his employment with the Council. Further, it was appropriate for her to assess future loss using a notional net weekly loss rather than to assess it by taking a broad axe approach.[13]
[13] Murray v Dawson (1996) 24 MVR 244.
It is further submitted by the Council that the trial Judge failed to take into account Mr Jaspers’ motivation and personality defects which ought to have been considered when assessing past and future earning capacity. It is submitted that these would have been likely to have prevented him from holding down consistent employment had he not sustained a back injury.
The trial Judge made the following findings as to Mr Jaspers’ attempts to seek employment following the back injury:
Mr Jaspers received rehabilitation assistance from WorkCover. The defendant is critical of his participation in that process and suggests that he was less than motivated. The evidence on that topic was however limited. Mr Jaspers gave what I accept to be good reasons for his inability to continue with various rehabilitation positions. I also note that he undertook retraining as a security guard and was able to obtain full time employment in that area. This does not sit comfortably with the suggestion by the defendant that he was not willing to fully exercise his remaining work capacity.
…
As I have indicated I find Mr Jaspers was totally incapacitated for work for a period of about six months after the accident and thereafter partially incapacitated. I reject the defendant’s contention that he did not fully exercise his residual capacity for work by failure to participate in rehabilitation. It is my view that Mr Jaspers has made a genuine attempt to undertake employment following his recovery and that apart from the short period of time that his right knee injury was in the acute phase of injury and treatment he is entitled to compensation for past economic loss.
Mr Jaspers undertook various stints of work at Meals on Wheels, Atrium Gardens, Barry’s Hardware and Hyde Park Press following his employment with Maxima. He gave reasons for the termination of work in each of these positions, which was accepted by the trial Judge. The Council did not call any evidence from Mr Jaspers’ rehabilitation officer or persons from any of the places of work to contest Mr Jaspers’ evidence. Further, there was no evidence of any personality defect given by the psychiatrist, Dr Davis, nor the psychologist, Mr Magliaro. Similarly, these assertions were never put to them. Instead, the Council argues that Mr Jaspers’ evidence is demonstrative of personality defects, and possible motivational issues which would hinder his ability to obtain work in the future.
At trial, submissions were made by the Council that Mr Jaspers should not be accepted as a witness of credit, and that his evidence should not be accepted unless independently corroborated. The trial Judge made the following observations in this respect:
My general impression of Mr Jaspers is that he is an unsophisticated man, with limited education and intelligence. He was very confused as to dates, the sequence of events and a number of matters. … On the whole however, I formed the view that Mr Jaspers gave his evidence genuinely and honestly within his limitations albeit on occasions he may have exaggerated or failed to fully inform the court on certain topics until pressed.
A finding of fact by a trial judge based on the credibility of a witness may be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.[14] In my view, the Council has failed to point to any relevant evidence to contest the factual findings of the trial Judge with respect to Mr Jaspers’ motivation and work habits following the accident. The trial Judge had the benefit of hearing and seeing the witnesses. I can find no reason to interfere with her findings.
[14] Fox v Percy (2003) 214 CLR 118, [28].
I turn now to the issue of Mr Jaspers’ security work.
In March 2007 Mr Jaspers undertook retraining as a security guard and was employed with Ample Security on a full time basis. His employment with Ample commenced on 6 May 2007 and ceased on 23 October 2008, during which he worked full time hours with overtime. On about 28 October 2008 he commenced work with Patron Security Services until 21 December 2008 when he left due to a dispute over shift allowances and damage to a patrol car. On 14 April 2009 Mr Jaspers returned to Ample where he worked until 7 February 2010.This employment was terminated by Mr Jaspers after certain disciplinary issues arose.
At the time of judgment Mr Jaspers’ current employment was with Paul Tomney Security as a crowd controller. This was casual, part-time work on Friday and Saturday nights. The trial Judge observed:
It is unfortunate that Mr Jaspers gave up work for which he was suited and which paid well. Since terminating his employment with Ample he has not been able to obtain alternative full time employment despite a large number of applications to a range of employers. The permanent work he has been applying for is full time but not in the security industry. It appears that he has chosen not to pursue such employment because the work offered is usually casual rather than permanent and was also generally night work which is not “family friendly”.
It is submitted by the Council that the trial Judge had insufficient regard to the fact that Mr Jaspers earned and was capable of earning more money as a security officer than as a general labourer, yet chose to voluntarily relinquish that work and not seek further security work. In addition, that the trial Judge erred in finding that Mr Jaspers was capable of doing only restricted security work as a result of his back injury. It is argued that it is relevant that Mr Jaspers’ termination of his security work was unrelated to his back injury.
The Council points to Mr Jaspers’ evidence that security work was easy to get, as there was plenty of it around. In addition, the Council submits that it is relevant that Mr Jaspers now works only eight to ten hours a week, as this ‘suits him,’ essentially enabling him to look after his child and his partner’s children while she goes to work.
In Medlin v The State Government Insurance Commission[15] a fifty-six year old university professor was injured in a motor vehicle accident caused by the negligence of the driver of the other vehicle. He resumed university duties but later took retirement four and a half years before he would have been obliged to retire. The issue before the High Court was whether the plaintiff was entitled to damages for loss of earnings capacity where he had voluntarily terminated his employment. At the trial, the plaintiff gave evidence that pain and sleeplessness and associated loss of ‘intellectual energy’ made him no longer able to discharge his teaching and research duties at a sufficiently high level to satisfy himself (as opposed to his employer).
[15] Medlin v The State Government Insurance Commission (1995) 182 CLR 1.
Deane, Dawson, Toohey and Gaudron JJ approached the question as follows:[16]
In these circumstances, the relevant question was not whether the plaintiff “should” have continued in his University post or whether his decision to retire was not “reasonable” but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant’ liability in damages, the premature termination of the plaintiff’s employment was the product of the plaintiff’s loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement.
[16] Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 11.
The Court was of the view that even if the premature termination of the plaintiff’s University appointment had not been relevantly caused by the accident, this would not been fatal to the plaintiff’s claim. The Court observed:[17]
A plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The continued availability of such employment will, of course, be relevant to the question of the existence and extent of any loss of earning capacity and a finding that a plaintiff’s termination of employment was not the product of an accident-caused loss of earning capacity will necessarily preclude the calculation of damages on the basis that it was. Such a finding does not, however, mean that damages cannot be recovered for loss of earning capacity which has been or will be productive of financial loss during that subsequent period.
[17] Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 11-12.
McHugh J described the question to be answered as follows:[18]
Whether there had been an impairment of the plaintiff’s earning capacity was a matter conceptually distinct from the plaintiff’s reasons for retiring. The correct question was whether, as a result of the accident, the plaintiff had been rendered less capable of earning income. In answering that question, his Honour was required to look at the plaintiff’s capacity for work beyond the particular employment in which he was engaged at the time of the accident. That the plaintiff was able to retain his position as Professor of Philosophy was not conclusive proof that he had suffered no loss of earning capacity.
[18] Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 17.
Mr Jaspers has proved that his earning capacity has been diminished as a consequence of the defendant’s negligence. This is so in respect of his labouring abilities and his ability to undertake security work. The trial Judge correctly noted that there are restrictions upon Mr Jaspers’ work capacity as a security officer by reason of his back injury. These include difficulties in foot patrol work for a shift, standing in one spot for a shift, difficulties with driving a car, riding a bike, walking over uneven or slippery surfaces, and further the inability to grapple with an intruder.
I consider that the trial Judge appropriately applied Medlin. It is relevant to the extent of Mr Jaspers’ earning capacity that the termination of the security work was not the product of an accident-caused loss of earning capacity. Nevertheless, the factors addressed by the trial Judge as to Mr Jaspers’ restrictions in carrying out security work which would be productive of future financial loss were correctly taken into account.
In my view, the trial Judge did not err in her approach to assessing future economic loss. She made a finding as to Mr Jaspers’ earnings, assuming the subject accident had not occurred. She made a finding as to the way in which Mr Jaspers’ would have exercised that earning capacity taking into account his pre-existing knee and shoulder injuries. She then made a finding as to the likely retirement age of Mr Jaspers, being 65 years of age. She allowed for any variances, having regard to Mr Jaspers’ re-training as a security guard, his diminished capacity for work, his personal life, and the possible unavailability of work. Finally, the amount arrived at was adjusted to reflect the time value of money, and was then reduced by 25% on account of adverse contingencies. All in all, I consider this to be an orthodox approach. The Council has not demonstrated error in the trial Judge’s approach.
In addition, I have had regard to the submission of the Council that there was an inconsistency between the trial Judge’s findings that Mr Jaspers suffered a significant loss of earning capacity because he is unable to work as a labourer, and the finding that there is a reasonable likelihood that other injuries may have precluded him from heavy employment. In my view, these findings could not be said to be inconsistent. The former was clearly open on the evidence and the latter a mere finding of a negative contingency in accordance with principle.[19]
[19] Bresatz v Przibilla (1962) 108 CLR 541.
Finally, I reject the submission put by the Council that Mr Jaspers’ back injury was the catalyst to his re-training therefore leaving him no worse off. This approach is not in accord with principle. The question to be answered is what is the value of Mr Jaspers’ loss of earning capacity. There is no doubt his capacity has been significantly reduced.
The Council has failed to establish that the award of damages was in all the circumstances manifestly excessive.
I would dismiss the appeal.
VANSTONE J: I would dismiss the appeal. I agree with the reasons of Sulan J.
DAVID J: I would dismiss the appeal. I agree with the reasons of Sulan J.