Westrac Equipment Pty Ltd v King
[2004] WASCA 188
•19 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: WESTRAC EQUIPMENT PTY LTD -v- KING [2004] WASCA 188
CORAM: MALCOLM CJ
STEYTLER J
MCLURE J
HEARD: 11 MAY 2004
DELIVERED : 19 AUGUST 2004
FILE NO/S: FUL 95 of 2003
BETWEEN: WESTRAC EQUIPMENT PTY LTD
Appellant
AND
STANLEY JAMES KING
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :H H Jackson DCJ
Citation Number : [2003] WADC 126
File Number : CIV 1316 of 2001
Catchwords:
Negligence - Assessment of damages - Obligation of trial Judge to make findings and give reasons - Respondent injured at work - Liability admitted by appellant - Competing medical evidence concerning respondent's retained earning capacity - Failure of trial Judge to make findings of fact on disputed issues central to the assessment of damages - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Retrial before a different Judge ordered
Category: B
Representation:
Counsel:
Appellant: Mr D R Clyne
Respondent: Mr B L Nugawela
Solicitors:
Appellant: Pynt & Partners
Respondent: Chapmans
Case(s) referred to in judgment(s):
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Cochrane v Hannaford (1999) 30 MVR 55
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Lloyd v Faraone [1989] WAR 154
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
Case(s) also cited:
Dessent v Commonwealth (1977) 51 ALJR 482
Ecob t/as Black Swan Coffee Lounge v WentworthShields [2002] ACTCA 2
Gamser v Nominal Defendant (1977) 136 CLR 145
Garrett v Nicholson (1999) 21 WAR 226
Kember v Thackrah [2000] WASCA 198
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Linsell v Robson [1976] 1 NSWLR 249
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Morris v Zanki by his next friend Zanki (1997) 18 WAR 260
Pettitt v Dunkley [1971] 1 NSWLR 376
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Reynolds v Roche Bros, unreported; DCt of WA; Library No D980164; 17 June 1998
Richards v Mills (2003) 27 WAR 200
Stork ICM Australia Pty Ltd v Hill [2002] WASCA 132
Suffolk v Meere [2002] ACTCA 1
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) Aust Torts Rep 80251
MALCOLM CJ: In my opinion, this appeal should be allowed for the reasons to be published by Steytler J. I also agree that, given the agreement between the parties to which his Honour has referred, there should be an order for a retrial before a different Judge. Consequently, I would wish to hear submissions from the parties regarding the precise form of the orders to be made to give effect to these conclusions.
STEYTLER J: The respondent, then 44 years old, was injured on 17 March 2000 while operating an excavator at a mine site in Western Australia. At the back of the cab in which he was sitting was a window. Behind the window there was an hydraulic hose containing oil. The hose burst, sending out a spray of hot oil under high pressure. The force of the spray was sufficient to push out the glass of the window. The respondent was struck on the back of his head and neck by the glass and oil and he was thrown forward to the extent permitted by the lap‑sash seat belt which he was then wearing. His head and neck were injured.
The respondent sued the appellant, which had done some maintenance work on the hose. According to the respondent, the appellant had negligently failed to clamp the hose properly, resulting in its later failure.
After two days of the ensuing trial, liability was admitted. The trial consequently proceeded in respect of the assessment of damages only. In the result, the respondent was awarded general damages of $35,000, an amount of $91,257.66 in respect of past economic loss ($40,000 of which covered the period January 2001 until the trial), an amount of $150,000 in respect of future economic loss and an amount of $5000 for future special damages.
In this appeal and cross‑appeal from that judgment the appellant challenges the awards for past and future economic loss. It challenges the award for past economic loss in respect of the period from January 2001 onwards (grounds 2 and 3). It challenges the award for future economic loss in its entirety (grounds 1, 2 and 3). By his cross‑appeal, the respondent challenges the whole of the trial Judge's award, contending, for reasons which span some 10 pages, that it was "a wholly erroneous estimate of the … [respondent's] loss".
As matters transpired at the hearing of the appeal, it was agreed between the parties that the Court should (after receiving further submissions in writing) rule first upon ground 1 of the appellant's grounds of appeal (as that ground was amended during the course of the hearing)
and that argument should be heard on the remaining grounds and as regards the cross‑appeal only if that ground should fail. It was common cause between the parties that, if ground 1 should be upheld, there will have to be a retrial before a different Judge on the issue of assessment of damages.
I will consequently deal only with ground 1, which, in its amended form, reads as follows:
"The learned trial Judge has erred in law when in assessing damages for future economic loss in the sum of $150,000 he has failed to make relevant findings of fact essential to the task of assessment, in circumstances where the credibility of the Respondent (Plaintiff) was critically in issue, and has failed to give reasons disclosing the basis upon which the assessment was made, such as to deprive the Appellant (Defendant) of an effective right of appeal conferred on it by statute."
While that ground refers only to the assessment of damages for future economic loss, it is apparent from the appellant's submissions that the difficulties there referred to are said by it to affect the award of economic loss in respect of the whole of the period from January 2001 onwards.
The relevant facts as they emerged at the trial
As a result of his injuries, the respondent was off work until 13 July 2000. On that day he returned for a two‑week work trial. He was made redundant by his employer (Newcrest Mining) at the end of that time because the mine closed down. He said that, during the work trial, he found it painful to drive a truck or to travel in a vehicle over rough ground. However, he was able to do some work "pegging wooden pegs".
The respondent was then under the care of his general practitioner, Dr Geoffrey Shulman. He had also consulted Mr Peter Silbert, a neurologist to whom he had been referred by Dr Shulman. It was Mr Silbert who had suggested that he return to his original employment for a two‑week work trial. After being made redundant the respondent again consulted Dr Shulman. Dr Shulman certified him as then being unfit for work, although, later, he was cleared to undergo work trials and to commence seeking employment, in particular, as a bus or limousine driver.
In late 2000 the respondent drove a limousine for a friend on two occasions. He also underwent a brief unpaid work trial driving a freezer truck. Moreover, he also earned a small amount of money selling Amway products in late 2000 and early 2001. In July 2001 he obtained casual and part‑time work as a limousine driver with a business known as Manhattan Limousines. He worked between 10 and 15 hours per week in summer and between 4 and 8 hours per week in winter. He said that he found this difficult and, on some occasions, pain and the effects of pain‑killing medication made the work unacceptable.
He also obtained other work, in July 2001, on a temporary basis as a trades assistant helping fitters. The work lasted for some 14 weeks, during which period he worked up to 50 hours per week. However, he experienced some neck and shoulder pain and was advised by Dr Shulman to consider reducing his hours. He did so, but the work was, in any event, coming to an end and so he gave it up.
The respondent made inquiries, in 2001, about employment as a nursery hand and as a factory hand. He also inquired about employment assisting with Shire rubbish disposal, working as a storeman and making deliveries. However, he made no job applications during 2002 or January 2003 (the trial having commenced on 3 February 2003), although, during the period February 2000 to December 2002, he had been in contact with an organisation known as Work Pac concerning possible employment opportunities in and around Perth. He had been referred to that organisation by Mr Silbert. He admitted to having hydroponically cultivated three crops of cannabis plants during this period, partly for the purposes of sale. Legible entries in his diary showed sales of cannabis at prices totalling some $4000.
The respondent acknowledged, in the course of his evidence at the trial, that he was employable. However, he said that he was limited in the work that he could do. He said that his failure to seek full‑time employment as a trades assistant or otherwise was a product of his physical limitations, application rejections and the need to be in Perth (he had three children in Perth, although he and his wife had separated for reasons which he attributed to the stresses brought about as a consequence of his injuries).
The medical evidence
A good deal of medical evidence was placed before the trial Judge. This included evidence from Dr Shulman, Mr Silbert, Dr Peter Connaughton, an occupational physician, and Ms Fiona Chromiak (mistakenly referred to by the trial Judge as Ms F "Kromhout"), a physiotherapist.
Dr Connaughton examined the respondent in respect of his accident‑caused injuries on 12 May 2000 and 2 May 2002. In the later of two reports prepared by him (a report dated 2 May 2002), he said that he would have expected gradual or progressive improvement in the respondent's symptoms and that he had some difficulty in explaining the respondent's reported lack of improvement. He considered that the respondent "could be rehabilitated to full‑time operation of a shovel or excavator on a mine site", but said that he "would not initially recommend" that the respondent return to positions such as operating forklifts, loaders or bulldozers. However, he said, the respondent was fit to continue work as a limousine driver and could work full‑time.
In his oral evidence, Dr Connaughton said that he had not been told of the respondent's work as a trades assistant. He said that the fact that the respondent had been able to undertake that work reinforced his opinion that the respondent could, after rehabilitation, go back to working full‑time on a "shovel" or excavator at a mine site and that, if he had known of the respondent's ability to do that work (depending upon its precise nature), he "may well have" expressed a different opinion as to the respondent's ability forthwith to undertake work operating forklifts, loaders or bulldozers. Dr Connaughton also mentioned that, on the occasion of the respondent's second visit, he had been concerned by differences between the range of the respondent's movements on formal examination and those on casual observation. He also had "reservations about the accuracy of … [the respondent's] reporting of function and symptoms" and wondered, in May 2002, whether the respondent was as disabled as he said he was. He said that it was significant that the respondent had not consulted specialists for a period of some six to eight months and that the respondent had been guarded or cautious on examination. He said that other workers, some with more significant injuries than those suffered by the respondent, had been fully rehabilitated.
Dr Shulman, on the other hand, expressed the opinion that the respondent was unlikely to show much further improvement and said that he was totally unfit to work as a plant operator. He also expressed the opinion that while the respondent was able to do casual work as a limousine driver, he would not be able to engage in that work on a full‑time basis and that he would not, in any event, be able to continue in duties of that kind until age 65. Dr Shulman doubted Dr Connaughton's assessment that the respondent could be rehabilitated to full‑time work operating a shovel or excavator at a mine site.
Mr Silbert had, at first, been optimistic that the respondent would be able to return to his pre‑accident employment, but, ultimately, accepted that he would be unable to drive excavators on uneven ground in view of his cervical discomfort. He said that the respondent would probably have difficulty working as a plant operator, as that involved frequent neck movement and turning. However, he considered that the respondent was fit for full‑time employment in his occupation as a limousine driver.
Ms Chromiak, in a report dated 1 May 2002, said that the respondent was "slowly worsening with the symptoms that he presents".
The judgment of the trial Judge
The trial Judge, having referred to the evidence before him, turned, in his judgment ([2003] WADC 126), to consider the submissions which had been made, respectively, on behalf of the appellant and the respondent.
Counsel for the respondent had invited the trial Judge to regard the respondent as a credible witness, albeit he acknowledged that the respondent's evidence had been unsatisfactory in some respects. He also urged the trial Judge to prefer the evidence of Dr Shulman and Mr Silbert to that of Dr Connaughton. Counsel for the appellant, on the other hand, invited the trial Judge to find that the respondent had lacked credibility in material respects and that he had done, and was able to do, more than he admitted to. He invited the trial Judge to accept the evidence of Dr Connaughton.
Having outlined those competing submissions without comment, the trial Judge went on to consider the issue of general damages. He said, in that regard, no more than the following (at [51] and [52]):
"There is no doubt that the … [respondent] suffered significant injury. In my view however he has for some time, say from mid 2001, been physically able to obtain and maintain employment but has not fulfilled his physical potential, allowing his remaining symptoms to limit his activity. He has become somewhat physically deconditioned. At the same time [he] has sought little medical assistance.
I assess general damages in the sum of $35,000. It is difficult to be adamant about the medical evidence. I think some allowance has to be had to Dr Connaughton's view that the … [respondent] could have been fully rehabilitated to his former work. His domestic situation, age and pre‑existing degeneration [resulting from a pre‑existing low‑back problem which the respondent had experienced] must however also be had regard to."
The trial Judge then turned his attention to the issue of past economic loss. Once again, he outlined the submissions advanced on behalf of the appellant and respondent respectively. So far as those submissions dealt with the period subsequent to January 2001, he described the calculations advanced on behalf of the respondent as "optimistic" (at [61]). He said (at [62] to [64]):
"In Linsell v Robson [1976] NSWLR 249, Hutley JA said, at p 251:
'This Court has laid down in clear terms what is required of a plaintiff who claims to have lost part, but not all, of his earning capacity… He is required to provide evidence, not only of what he could earn prior to his injury but what he is capable of learning [sic] since his injury… This is not a case, in my opinion, where the evidentiary burden has passed to the defendant. The efforts of the plaintiff were very meagre, and, only after considerable efforts to obtain an occupation have been made and failed, does the burden pass to the defendant to show that there is something the plaintiff can do.
Those propositions apply here. His Honour added that a court may award only a nominal sum for loss of earning capacity if the evidence is inadequate.
Whilst … [counsel for the respondent's] basis for submissions are [sic] logical given the evidence they rely on, the proposition that Dr Connaughton's evidence that [sic] the … [respondent] could have been rehabilitated to his former employment is rejected [I take this to mean 'rejected by counsel for the respondent']. There is however at least a significant chance that Dr Connaughton is correct. The … [respondent] has failed to give the possibility a full testing. Nor is there evidence of his having fully mitigated his loss short of that course. In the result some doubt is cast on his true loss. I allow $40,000."
Next, the trial Judge turned his attention to the question of future economic loss. After quoting from a written outline of submissions lodged on behalf of the respondent, he said (at [67] to [69]):
"… [Counsel for the respondent] argues that there is no evidence that the … [respondent] would not, save from [sic] the accident, have continued in his employment as an operator of heavy mining equipment to age 65. Dr Silbert thought it as likely as not. The … [respondent] had been doing the work for some 22 years. Whilst the law starts from such a position in my view it is more likely that before age 65 the … [respondent] would have preferred to live in a more congenial environment closer to his family and that increasing age and a degenerative cervical joint would have made such work less attractive or even impossible.
In the context of the present case … [counsel for the respondent] drew my attention to Wade v [Allsopp] (1976) 10 [ALR] 353; 50 ALJR 643 and Reynolds v Roche Bros Pty Ltd [1999] WASCA 141. He argues that the … [respondent] will have difficulty finding and retaining full time employment given his pre‑existing limitations and disabilities and his present injury so that the court should neither underestimate the loss in earning capacity nor allow too great a discount for contingencies.
He concedes though that the … [respondent] can now work full time as a truck or limousine driver. As I said above I also take into consideration the evidence of Dr Connaughton that in his view the … [respondent] could in any event have been rehabilitated to his previous work."
The trial Judge then turned his attention to the submissions advanced on behalf of the appellant. He said, in that regard, the following (at [70]):
"… [Counsel for the appellant] argues that this is a modest future economic loss claim. He points also to the … [respondent's] age, and pre-existing degenerative neck. The … [respondent], he argues, has not reached the point of establishing loss of pre-accident earning capacity and inability to find alternative employment, such that an evidentiary burden shifts to the … [appellant] on that issue: Ta v Lucky Imports and Export Co Pty Ltd [2002] WASCA 65 referring to Thomas v O'Shea (1989) A Tort Rep 8‑251 and Linsell v Robson [1976] NSWLR 249. In any event the … [appellant] says it has established that the … [respondent] has significant retained earning capacity."
His Honour went on to express his conclusion on the issue of future economic loss, saying no more than the following (at [71]):
"I allow on a global basis, and without attempting to make a pseudo‑scientific calculation of such imponderables, a figure of $150,000."
It is plain from the aforegoing that the trial Judge made only limited findings of fact. Nowhere did his Honour make any finding in respect of the appellant's credibility or any analysis of the competing medical evidence or any findings expressing any preference for any one part of that evidence over any other part. Nor did he express any conclusion as to what was the retained working capacity of the respondent (notwithstanding the competing evidence in that regard) and, hence, as to what income might have been earned by him after January 2001 and into the future. In particular, he did not resolve the dispute in the evidence between Dr Connaughton, on the one hand, and Dr Shulman and Mr Silbert, on the other. While he said, at [52], that some allowance had to be had to Dr Connaughton's view and, at [64], that there was "at least a significant chance that Dr Connaughton is correct", he did not say what allowance should be made in that respect, or why. Nor did he give any other reasons for his conclusion that the sums of $40,000 and $150,000, respectively, should be awarded.
The need to make findings and give reasons
While counsel for the respondent sought to defend this approach by suggesting that it was open to the trial Judge to make a "global" or intuitive assessment, I am unaware of any recent authority which would support the proposition that intuitive awards can be made without finding facts on disputed evidence and without the benefit of disclosed reasoning. To the contrary, there is a wealth of authority to support the proposition that a trial Judge is obliged to give reasons: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA); Lloyd v Faraone [1989] WAR 154; Stojkovski v Fitzgerald [1989] WAR 328; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (CA); Cochrane v Hannaford (1999) 30 MVR 55 (NSW CA) and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [26] to [29]. The giving of reasons is a normal (albeit not universal) incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; Soulemezis, above, at 259 ‑ 270, 278; Beale, above, at 441 and Mount Lawley, above, at [26]. Where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party is unable to identify error. Consequently, where one set of significant evidence is preferred to another, the trial Judge should not only express his or her conclusions in that respect, but set out sufficient findings to explain why they were arrived at: Beale, at 443; and Mount Lawley, at [28].
I would also respectfully endorse what has been said by Winneke P (with whom Hayne and Batt JJA were in agreement) in CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505 at 508, as follows:
"… [I]t remains true that an assessment of damages made by a judge is not as inscrutable as an assessment made by a jury: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369, per Gibbs J. Unlike the jury, the trial judge is expected to give reasons for the assessment which he makes and, in a case like this where damages are claimed under several heads, it is usually desirable that the reasons should descend to some degree of particularity in respect of each head of damage. As Stephen J said in Gamser v Nominal Defendant (1977) 136 CLR 145 at 149:
'… that so long as awards of damage for personal injuries are to be assessed at first instance by judges rather than juries, with the accompanying advantage of the existence of stated reasons, those reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at … An award of damages is not, nor should it ever be, arrived at intuitively. Only if it were would particularity as to its component parts be otiose; and if an award is to be the result of a process of reasoning, often quite complex, that process should be exposed, both for the satisfaction of the parties and for the enlightenment of appellate courts should there be an appeal.'
See also per Gibbs J, in the same case at 147‑8; Dessent v Commonwealth (1977) 13 ALR 437 at 445‑7; 51 ALJR 482 at 486‑7, per Mason and Aickin JJ."
In this case, given the paucity of expressed reasoning in the judgment of the trial Judge, and his failure to make findings of fact on disputed issues which were central to the assessment of damages for past and future economic loss, it is impossible to arrive at any other conclusion than that, having considered the evidence to which he referred at some length, the trial Judge arrived at the amounts awarded by him intuitively. So far as the award of $40,000 is concerned, his Honour appears, with due respect, merely to have thrown the possibilities to which he referred into the ring without any expressed evaluation of them and, intuitively, to have arrived at the figure of $40,000. As to the figure of $150,000, I have earlier mentioned that his Honour arrived at that figure "on a global basis", and without attempting to make what he referred to as "a pseudo‑scientific calculation" or even any assessment of the competing medical evidence, such an assessment being essential to any reasoned resolution of the issue.
In these circumstances ground 1 of the grounds of appeal must succeed. That being so, and given the agreement between the parties to which I have earlier referred, it follows that a retrial before a different Judge should be ordered. I would hear further from the parties as to the form of the orders which should be made in order to give effect to these conclusions.
MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Steytler J. I agree with the proposed orders for the reasons he has given.
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