Williams, W.R. v Commonwealth of Australia

[1988] FCA 460

C A T C H W O R D S

Negligence - Appeal from A.C.T. Supreme Court against quantum of

damages - inclusion of medical expenses overlooked by trial judge - assessment of past earnings loss - assessment of future medical expenses - assessment of loss of earning capacity.

Matter No. ACT G82 of 1987

WILLIAM RONALD WILLIAMS	v. COMMONWEALTH OF AUSTRALIA
4 AUGUST 1988

FORSTER, SPENDER & MILES JJ.
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY 1 1

REGISTRY	DISTRICT	)	NO.ACT G82 Of 1987
)

DIVISION	GENERAL	)
ON APPEAL from a decision of HIS Honour Mr Justice Gallop of the Australian Capital Territory supreme^ Court
BETWEEN:

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WILLIAI? RONALD WILLIAMS

Appellant

AND :	-
COMNONWEALTH OF AUSTRALIA

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER	FORSTER, SPENDER	&	I
MILES 3J.

CANBERRA MADE WHERE

ORDER DATE OF 1988 4 AUGUST,

THE COURT ORDERS THAT:

1. The appeal be allowed for the purpose of increasing the I . , ,

amount of the judgment by $19,442-73, and thus substituting

judgment of $302,722-73 for the sum of $283,280 awarded. t ..

2. That the appellant should pay nine-tenths of the !

respondent's costs in the appeal.	j . ,
,

- Note : Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA 1

1

AUSTRALIAN CAPITAL TERRITORY 1 1

REGISTRY	DISTRICT	1	NO. ACT G82 Of 1987
1

DIVISION	GENERAL	1
ON APPEAL from a decision of
H15 Honour Mr Justice Gallop of
the Australian Capital Territory Supreme Court

! BETWEEN:

*-

WILLIAM RONALD WILLIAMS

:

Appellant	I
I I ”

AND :

-

COIiIMONWEALTH OF AUSTRALIA

Respondent

COURT: Forster, Spender and Miles	JJ.
PLACE:	Canberra

-

- DATE: 4 August 1988

REASONS FOR JUDGMENT

THE COURT :

This is an appeal against an assessment of damages made

by the Supreme Court of the Australian Capital Territory (Gallop

J. 1

The appellant was quite seriously injured on 18 January

1984 when he fell, having tripped over a door wedge at Parliament

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House, where he was employed by the respondent as a security

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officer. He sued the respondent for damages on the footing that his fall was caused by the respondent‘s negligence or, alternatively as a result of the breach by the respondent of its

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obligation as an employer. The issue	oi liability was resolved
in the appellant's favour.

Damages were assessed at $283,280 and judgment was

entered for the appellant f o r this amount and costs.

The amount of damages was made up as follows :

General damages $50,000

Past economic loss 78,000

FOX v. Wood component	12,280
LOSS of earning capacity	120,000
Future medical expenses	2,500
Home alteration and maintenance	500
provision of domestic services	5,000
Interest on past general damages and
past economic loss	15,000 $283,280

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Complaint is made in the notice of appeal of the fact

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that the learned trial judge failed to include in this list an

amount of	$19,442-73 agreed out-of-pocket medical and related
expenses. Counsel for the respondent before	us conceded that
this sum had been	agreed, ought to have been included and,

whatever might happen with respect to the other complaints about

the assessment, damages ought to be increased by this sum.

Complaint is also made of the amount assessed for past

earnings loss, for loss of earning capacity, and for future

medical expenses. The appellant asks that judgment for an increased amount be substituted for the Judgment given and also

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for costs.

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In order that the matter may be understood it is

necessary to set out some background facts. The appellant was born on 14 March 1937, was 46 when he was injured and was 50 and a half at the time of the trial. At the time of his lnjury he

was employed as a security guard at Parliament House, as we have

said, and had been so employed for about 10 years. His work at

Parliament House was at night and for the entire 10 years he

worked part-time in the day time at another job. This was

driving for Mayne Nickless. In addition to this somewhat

exhausting work schedule the appellant was a champion power

weight lifter in his class and age group and, at the age of

46, was in training to run his first marathon. Notwithstanding,

and perhaps to some extent because of this physical activity, the

appellant suffered from lumbar spondylolisthesis which he claimed

was aggravated by his fall. He has not worked since the

accident and was compulsorily retired from his job at Parliament

House on the grounds of ill-health in May 1985.

The learned trial judge arrived at the figure of $78,000

for past economic loss by considering the figures agreed between

the parties for past net wage loss with respect to his Parliament

House employment of	$62,427-05 and with respect to his Mayne
Nickless employment of $18,525.	His Honour said "The aggregate

of these two figures is $81,000. I discount that figure

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slightly to take account of past vicissitudes between the date of

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the accident and the date of trial and provisionally assess the

sum of $78,000 for past wage loss". The accident was on 18

January 1984 and the trial took place in October 1987 some three

years and eight months later. In view of the appellant's

vigorous regime of athleticism and his already deteriorated back

we are quite unable to say that his Honour was wrong to dlscount

this figure by what amounts to approximately l% per year.

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The matter of future medlcal expenses is also relatively

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easy to dispose of. His Honour sald :

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"There is a claim for future medical expenses.

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The evidence is that It 1 s costing the plaintiff

at the present time $9.50 per week for medication.

I think it 1s reasonable to allow that sum for say

the next five years. I provisionally assess the

sum of $2,500 for future medical expenses."

The figure of $9-50 per week was in fact agreed between

the parties and is the last figure on a page in the appeal book

headed	"agreed	figures".	The	calculation	of	this	figure	is
somewhat	mysterious	and	hard	to	follow.	The	appellant	gave

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evidence that he	saw his doctor every three	or	four weeks	in	,.
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order, if for no other reason, to obtain further prescriptions

for drugs. He said that each visit cost $19. These visits

would cost somewhere between $4-50 and $5 per week. In addition, at the time of the trial, the appellant was taking an

anti-depressant drug, Surmontil, at a rate which incurred cost of

a little more than $4-80 per week. He also took Di-gesic but

there was no evidence of the cost of these.	He	also took
Indocid or Feldene	at a cost which works out at	$1-40 per week.

However all this may be, the amount agreed for future medical

expenses was $9-50 per week.

In a report dated 11 May 1987 Dr Bremner, the

appellant's general practltioner, said that it was proposed to

continue the anti-depressants for a few more months and then withdraw them very gradually over perhaps another six months.

This had apparently not happened at the date of the trial but

there is a plain indicatlon that the most expensive drug in the

appellant's list is expected to be withdrawn in due course. so

far as the pain killers and anti-inflammatory drugs are

concerned, his Honour was quite entitled to take the view that	P '
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the appellant's need for these would become less. Dr Newcombe,

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the neurosurgeon, gave evidence of continual improvement between

the end of 1985 and March 1987, although he says that there was

no further improvement when he last aw the appellant on 30 July

1987, which is perhaps not altogether surprising in view of the

shortness of the interval between the visits. In March 1987 the

appellant was walking two kilometres at a time and had, so Dr	!
Newcombe said, shown improvement.	In view of the fact that it
was expected that the use of Surmontil would	be iscontinued and

the real possibility of further improvement by the appellant, we

consider that the learned trial judge was quite right to place

some limit on the allowance for future medical expenses. We are

quite unable to say that to allow an amount calculated on the

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basis of five years at the current rate of expense without any discount for immediate payment or, because of the probability of

the discontinuance of the use of Surmontil, was unreasably	low
and should be interfered with.

There remains the question of loss of earning capacity.

His Honour arrived at the figure of $120,000 by considering the

agreed present figure for an employee at Parliament House

comparable to the appellant at $315 net per week with overtime

and the agreed net figure for the appellant's part-time earnings

at $95.

His Honour went on :

"Assessing an earning rate of $400 per week net,

the lump sum necessary to compensate the plaintiff
for loss of earnings to age 60 years, discounted

at 3% with no allowance for interest on the

principal	sum, 1 s about $180,000.	I think the
plaintiff is likely to get back to some	sort	of

job which will produce income, even if that takes

the form of some sort of self-employment. Doing

the best I can, and using that figure of $180,000

as a guide, I provlsionally assess the sum of

$120,000 for loss of earning capacity".

Two complaints were made about this assessment. First,

that his Honour should have assessed damages under this head on

the footing that the appellant remained	in work until the age of
65 and second, that a reductlon from $180,000 to $120,000,	that
is of	a third, was a good deal too much to take account of

vicissitudes and the possibility of return to work.

We do not accept these two criticisms. The learned

trial ~udge had the opportunity of observing the appellant when giving evidence and also of observing Dr Newcombe. Although Dr

Newcombe did not think it probable that the appellant would

return to any sort of employment he conceded that i was possible

that he would do so. The appellant was quite apparently a

stoical individual who, as we have said, by March 1987 was

walking two kilometres at a time and had showed improvement in Dr

i Newcombe's view. Even after his accident the appellant

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continued his interest in weight lifting and attended a gymnasium

on about five days a week for f om one to three hours in order to

coach young weight lifters. He also attended on almost every

week morning for physlotherapy o r hydrotherapy and at the time of

his trial was learning to play the organ. He has a special seat

to enable him to drive a car and he has driven to Sydney and to

Wollongong since he was injured. Earlier in his life the

appellant had shown considerable commercial ability in the running and expanding of the business of a bakery in a country town.

His Honour said :

"The plaintiff is now	50 years of age. I do not	. .
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think it is approprlate to calculate loss of ,

earning capaclty on the basis that the plaintiff will never return to the work force. He has a

lot to offer an employer if he can adjust to pain

and disabilities.	I accept Dr Newcombe's opinion
given in evidence that it	is possible that the

plaintiff could get back to some sort of

employment within two to three years. The type

of employment would probably have to be a

sedentary job that permits him to move about and

indeed he would probably need a sympathetic

employer .	'I
We are quite unable to say that the learned trial judge

was wrong to decline to assess the appellant's loss on the basis

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that he would never return to work. We are therefore not

satisfled that he was wrong to discount the	appellant's loss of
earning capacity on the footing that he would return to	some form

of paid	work.	The	amount	by	which	compensation	for	the	:
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appellant's loss of earning capacity should be dlscounted because

of the possibility of future employment and because of the

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ordinary vicissitudes was a matter for the trial judge. we point out that the appellant's future was likely to be affected by his pre-existing back condltion and the vigorous physical life

which he was leading before the accident. We mention agaln

power liftlng and the taking up of marathon running at a

comparatively advanced age. There was in addition the

likelihood that because of	shift changes for security personnel
at Parliament House the appellant would not be able to	do bo h of
the jobs he had been doing. There was therefore a measure of	:. ,

uncertainty as to whether he would be able to do two jobs and, if

so, with what net return.

For these reasons the amount assessed for future

earnings loss should have been considerably discounted. His

Honour chose a particular method of calculation regarding the

appellant as working until aged 60 and then discounting the

result by one third. We are unable to say that he was wrong to

calculate in this way. Moreover, what is perhaps more

important, the global sum arrived at by his Honour appears to us

to be well within the appropriate range for a plaintiff in	the
position of the appellant.

As we have said, the amount assessed must be increased

by $19,442-73 omitted from calculation no doubt by inadvertence.

The appeal is allowed for the purpose of increasing the amount of the judgment by the amount overlooked and substituting judgment

for $302,722-73 for the sum of $283,280 awarded.

We are informed by counsel that when the error in the

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judgment was discovered the solicitor for the respondent agreed

to facilitate an amendment of the judgment by he use of the slip

rule or in some other way but the appellant’s solicitor declined

this offer as he had decided to appeal. against the judgment in

any event. In these circumstances we consider that as the

respondent has been substantially successful in the appeal the appellant should pay nine-tenths of the respondent’s costs.

I certify that this and

the 8 preceding pages are	i .’
a true copy of the Reasons for Judgment of the Court.
Associate: l ’ ~ p - 7 ~ Dated: 4 August 1988

Counsel for the appellant : Mr P. Sheils, Q.C. with

Mr B. Meagher

Solicitor for the appellant : Messrs Pamela Coward &

Associates	I
t.

Counsel for the respondent : Mr R.E. Williams

I Solicitor for the respondent : Australian Government

Solicitor

Date of hearing : 5 July 1988

Place of hearing : Canberra