Visyboard Pty Limited v Ranieri

[1999] NSWCA 331

CITATION:	Visyboard Pty Limited v Ranieri [1999] NSWCA 331
FILE NUMBER(S):	CA 40792/98
HEARING DATE(S):	22/07/99
JUDGMENT DATE:	22 July 1999
PARTIES :	Visyboard Pty Limited Frank Ranieri
JUDGMENT OF:	Beazley JA at 1; Davies AJA at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	5459/97
LOWER COURT JUDICIAL OFFICER:	Dent DCJ

COUNSEL:	Appellant: I G Harrison SC Respondent: M Williams QC/ P Little
SOLICITORS:	Apellant: Blake Dawson Waldron Respondent: Geoffrey Edwards & Co
CATCHWORDS:	Damages for personal injury; sustained during employment; assessment of past and future economic loss; medical evidence
DECISION:	Appeal Dismissed With Costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40792/98
DC 5459/97

BEAZLEY JA
DAVIES AJA

Thursday, 22 July 1999


VISYBOARD PTY LIMITED v FRANK RANIERI

JUDGMENT

1    BEAZLEY JA: This is a defendant’s appeal from a decision of Dent DCJ in which his Honour awarded the plaintiff (the respondent to this appeal) damages for personal injury which he sustained during his employment with the defendant/appellant. The appellant appeals only against the award for past and future economic loss.

2    The respondent injured his back on 18 April 1994 when, in the course of his work for the appellant, he lifted a 44 gallon drum of glue onto a forklift and ruptured a disc. He continued work with the appellant until 18 February 1997, when his back “locked up”. The respondent has not worked since. His employment was subsequently terminated by the appellant on 31 October 1997. In the letter of termination the appellant advised the respondent:

“Unfortunately, Visyboard Pty Ltd is unable to continue your employment. We have come to this decision after a close examination of your current medical condition as certified by your treating doctors which indicates that you are unable to return to your pre-injury duties as a supervisor.
Rehabilitation, which the company regards as a means to return injured employees to their pre-injury employment, has not been successful. In these circumstances we, unfortunately, do not have any suitable positions available for you at this time.”

3    The respondent’s personal history was that he was educated in Italy until the age of 11. He later came to Australia with members of his family to join his father and sister, who were already here. He has always worked in unskilled jobs, although his rapid promotion to foreman in the employment of the appellant is testament to his innate organisational abilities and leadership qualities.

4    The reports of ten medical witnesses were tendered at trial. None were called for cross-examination. The trial judge awarded $77,139 of past economic loss on the basis that the respondent had been totally incapacitated for work from the date of ceasing to work until the date of hearing. He awarded $229,544 for loss of future earning capacity, on the basis that he had lost two thirds of his earning capacity.

5    The appellant submitted that the medical evidence did not support a total loss of earning capacity up to the date…