% 429 TITLE OF ACTION Date(s) of hearing Counsel and for Solicitors Sere ee Counsel and Solicitors for (rato: Yo Jnr ce AAA AAA AON sparabed ve FLDERY COURT oO: AUSTRALIA oe BEE OPT SUN ..DISTRICT RUGISTRY No of Action ....30.... of OSB... eoveee Cee tem weet sre nee em ear eee etme eareer eer terse nesr neurons er ey Peer eee ner cere nr pere stare scce Maree ecco edb ever evrerseses Slonud 6. SSUPTTIET IN Dee ee ree teens ee ee ee Prgpe yp 1] "eerst Percinay po on-forvurding to few publishers) CATCHWOARDS Damages - Appeal on quantum upheld. MICHAEL LAPADAT v. CIVIL AND CIVIC PTY. LIMITED F.C. No. 10 of 1978 Smithers, Connor and Franki JJ. Canberra 29 November 1979 IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) No. F.C. 10 of 1978 DISTRICT REGISTRY BETWEEN : MICHAEL LAPADAT Appellant AND : CIVIL AND CIVIC PTY. LIMITED Respondent O R_ D £E R JUDGES MAKING ORDER: Smithers, Connor and Franki JJ. DATE OF ORDER : 29 November 1979. WHERE MADE : Canberra THE COURT ORDERS THAT: 1. Appeal upheld. ' 2. Order of Supreme Court of the Australian Capital Territory varied by the substitutzon of the sum of $61,739.19 for the sum of $38,739.19. 3. Respondent to pay the appellant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA) I P ERRITORY No. F.C. 10 of 1978 DISTRICT REGISTRY BETWEEN: MICHAEL LAPADAT Appellant AND: CIVIL AND CIVIC PTY. LIMITED Respondent Coram: Smithers, Connor and Franki JJ. ' Canberra 29 November 1979 REASONS FOR JUDGMENT SMITHERS, CONNOR and FRANKT Jd.: wenn eee. Fer enppraeer se! This is an appeal by Michael Lapadat limited to the measure of damages. On 21 August 1974, the appellant, whilst working for the respondent, was ingured when he fell some 10 or 12 feet to the ground from a scaffold. The learned trial judge found for the appellant on the question of negligence and awarded nim the sum of $38,739.19 by way of damages. The appellant, who was born in Roumania, came to Australia in 1961 and was 24 years of age at the date of the trial. He left school after getting the School Certificate at the Albury North High School about 1970. He went to Canberra about 1973 and worked there as a builder's labourer. He had been employed in that capacity by the respondent for some months at the time of the accident, The learned trial gudge, without indicating his method of calculation, said: "In my view he is entitled to a verdict as follows: 1. Out of pocket 1,475.19 . 2. Loss of wages to December 1976 and a period ending February 1977 16,264.00 3. Loss of earning capacity 12,000.00 4, Pain, suffering and loss of amenities 9,000.00 $38,739.19" " -_7f—- The figure for out of pockets was en oerecd amount. In his gudgment the trial gudge a'so saad: "My conclusions are that the plasnciff has suffered angursres causing pain and disabslitiy parvecaulerly in the Luck and ankle, thal do ane .Lil dasauaiiry him from the worl of a burleer's scleurer or other heavy latsuring. I voulec have found that he had this carabslity come time in 1975 but I aceevt the puplication of the award (cervhibit 'F') rade on 74 December 1976, aS relating to the work oi a builder's labourer. A man is not usually able to perfor: heavy labourin# vork anyia2y for all his working lite; eventuzily ho will be obliged to seek lighver (non-skilled) work accepting a reauced wage 1f necessary. ed that the Further, I am not satisr2 cere cond reosonable plaintiff has mace since efforts to obta2n enpior enc within his capability cor to atte nt +o rehapilstate himself within r2s oun couacity. He has been content, 1% scens. To accept comronsetion prvi ewnics cond ait Tor cone person or orgenacetion to aurrenzte artfairs for hin. I ao net regard the vetal period off work as a guice to earning capacivy." Exhibit "E" was an avard made under tno Warkmen'!s Cemsenac tiry Ordinance 1951 on 14 Docembrr 1976 and included the finding that: ny "The Applicant ras been ¢ for work as a rervit of ch from 21st Augusy, 1974 to so iuncapaciliated ror work. Two epcc1alist orthopaciic surgeons were called on behelf of the apocllant, one a Dr. Rocbuck practising in Canberra and the other a Dr. Keng practasing at Albury. Rcports from fave other redical practitioners were tendered in evidcenes py By consent and in respect to tnose the leurnecd trial judy, wi iG) bs an his judgment: "TJ have experienced to: difficulty others no avust have felt an try. to evalualo evidence :- hich 1s produced in the form oz a report." The trial judge did not indic.te in detail the view he took of the several reports but ke did make a finding that: "There is no evidence ihich I accept that any psychiatric co idition suffered by ine plaant: ff wijl continue after the litigation; and some evidence asserts he was at some stare ralinserin,. I rote the eviderce that, in erfect, he exagacrates his limp." The trial judge found that the enpellant had no known physical deficiencies up to the time of the accident. He also found: . | "In the accrdent the plaintiff suffered an undisplaccd Potts fracture of the left ax:le and a contusion to tne left is.ee. Also he was diacnoscd as having & condition kne.n as spenayloiis stiesis which itself 15 cavab of producing pain and is induced 11: his case by a congenital cond2tion 284 PaVAT ted by the fall cn 21 August 1574." The trial judge then cealt further with these three conditions. In relation to the left ankle he found thet there was a fracvure of tLe medtal malleolus - 4 - but apparently wathout displacement end that 1% also seemed there was a slightly dicplaccd freeture of the anterior part of the lower end of the tibia but that afler some delay the fractures united satirfcoctorily. Dr. Rochuck, in his evidence, said that he had seen the plaintiff on several occasions between 2 April 1975 end 6 Apri2 1978 and that as at this latter cate the plaintiff had about 30% to 408 of the norwal range of moveeents and tnat his complaint of "stiffress" an the ankle joint was reasonablc in the circunstances. He also conside: ed that the degree of restriction of novement 1.ould be permanent but that, apart from stiffness, this would not lcad to problems in the future. Dr. Keng said that the plaintiff could develop arthritis in the ankle in his late fifties and that this could come earlier if the avpellant .@s involved ia heavy labour. In relation to the left Inee the trial judge found thet as a result of the accident, or as an agsrvevation produced by the accident, the plaintiff suffered a conditacn known as chondroralacia patellae for .hich ke was given cortisone injections. Dr. Reebuck in evidence said he thought the appellant would probably develon arthritis of that ccotoartment of the knee goint ultimately requiring removal of the knce cap but this would, in effect, free him of arthritic pain Lut would leave some weakness and stiffness but he did not thin' any, significant pain would remain. - 5- In relation to the back the trial judge found that the appellant had a condition of spondylolistnesis which may have been of long standing, but which was aggravated by the ingury. That condition, he found, would be aggravated by hard work and it could account for the pain said to have been felt by the appellant in his back. Dr. Keng explained that in this condition of spondylolisthesis there was separation of the vertebral body of the neural arch and that people suffering from this condition would not be fit for heavy labouring work. Dr. Roebuck said in general that the appellant in April 1978 was fit for most kinds of work other than heavy labouring. In deciding whether to allow this anpeal the Court is not entitled merely to substitute its own view but it must examine the total sum awarded for general damages and decide whether, tc use the words of Aickin J. (with whose reasons for judgment Barwick C.J. and Stephen J. agreed) in Gamser v. The Nominal Defendant (1977) 51 A.L.J.R. 315 at pp. 371-322 that award for general damages is "cut of all reason" or "wholly disproportionate to the circumstances", Gibbs J. at p. 31/7 cited a passage from Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.c. 601 at pp. 616-617 which was cited with approval by Dixon C.J. and Kitto J. in Miller v. Jennings (1954) 92 C.L:R. 190 at pp.195-195. The passage included the following: "Tt as difficult to lay down any precise rule which will cover all cases, but a good general guide 1S given by Greer L.J. in Flint v. Lovell, [1935] 1 K.B. 354, at p. 360. 'In effect the court, before it interferes with an award of damages, should be satisfied that the audge has acted on a wrong principle of law, or has misapprehendea the facts, or has for these or other reasons made a wholly erroneous estimate of the mm. - auras -6- damage surtercad. Jt is not enough that theses 25 & bulénce of opinion or preierence. The scate rust go 4. down heavily asaainst tne farure attacked if tne «pnellate court 1s to interfere, whether on the ground of eaccss or insufficiency." Wecome now to exemine the assessrcnt of danagcs which was made, Dcaling farst with atem 2 it seems difficult to decide whether the eward of 416,26" was to cover loss of wages from the date of the accident to December 1976 or to a period ending in February 1977. The figure of 916,264 is the exact figure which is arrived at as the agreed amount the appellant would have earned if he had worked as a builder's labourer for the pseciod from the accident to 14 December 1976. It secms thet the figure of $16,264 is in respect of the perzod onded on 14 December 1976, The finding made under the Vocvments Conmensation Ordinance that total ancapacity existcd up to 14 December 1576 may explain the reference to "December 1976" but however one interprets item 2 any loss of earning cepacity in relaticn to the period either from December 1976 or from February 1977 to the date of judgment in iiay 1978 can only find a place, if at all, in item 3 where the "loss of earning capacity" was estimatee at $12,000. It was agreed that, if the plaintiff hed not been inyured and had continued to work as a builder's labourc.>, he would have been earning a net ware of $175 per weex at the date of the trial, and at 14 Decenber 1975 the corresponding a figure was agreed to be $165. A man receiving 1165 a week and working for a year would receive in excess of £8,500, The learned trial judge did nef andicatc in any way how he reacied the figure of 112,000 Lor the loss of earning capacity Lut bearing in rind that 1n nis gudgnent in May 1978 the trial gudye said tuit the plaintifits injuries "...do and will Ciscualify Lim frem the work of a builderts labourer or other heavy Labouring" and the finding of the Yorkers! Compensation Tribunal that votal ancapacity existed on 14 December 1976 1t 18 difficult to see how the figure for the loss of earning capacity from either Docember 1976 or February 1977 could te properly assessed at £12,009. There was no evidence befors the Court of the availability of the type of work which the plaintirf could do, or andeed of the wage, nich the plaiantifft might have expected to receive for such wirk et the time of the lie ct trial. Unsatasfactory as this 1s ¢% rial judge stviil has to do the best he can \1ih the material avallable. (See generally Matvornl Inctrunents Pty, [td. v. Gilles (19% 49 A.L.J.R. 349). The learned trial gudge said that he was not satisfied that the plaintaff had de sincerc and reasonable efforts to obtain employiwent within his carabiiity or to attenpt to rch#bilitate nincelf wi lhin his own capacity and he alsossia that he dia "mot regard fue total pericd cats off worx as a poide te errning carecity." . Cy Doing ihe bestwe sia with the evadvnce end buaring o ? in mind an parv:eculor: ' -8- 1. the age of the eppellent, 2. the lack of educational qual2zficationus of the appellant, 3. that the only work the appcllaiut had cver dene had been labouring work, 4, the nature of the appellant's inguries, 5. the future likely condition of the appellant as a result of the injuries, and thet he has lost entirely and permanently his c. pacity to perform heavy labouring work, 6. that the appellant was unlit:tely to be able to compete on equal terins ageinst men who did not suffer physical disabilities in the labour market. (See generally Wede v. Allsorp (1976) 50 A.L.J.R. 643), 7. that apart from the accident the appellent right reasonably have cexpectec to perform heevy larouring work for acother 25 years and taking inteu account the vicissituies of lite we are of the opinion that the amount of $12,000 15 wholly disproportionate to the circvunctances and consider that a figure of $30,000 is appropriate. ?xamining this figure in the Llitht of 6% tables for, say 25 years, one finds that this would Le the present value of an economic loss of atout #15 5 per weck, W vefer to these table if] as no rore thin useful background material anu. are waindful that the very Limited amount of evidences in this case rakes it extrenely difficult te attempt any precise aaclycis of the positicn. etm iaied ~ —s eee Se ee -~Q- The only other iten of general dumuges imcludcd in the total verdict is the figure of $5,000 for pain, suffering and loss of amenities. According to the appellant's eviderce, after the accident his Jer was in plaster for some t1'0 months and he suffcreda considerabie pain. He tried to work an Novenber 1°74 Lut he said he could not continue because of pau and, in May 1975, he went to Albury, vhere his paronts lived, and in Itarch 1976 was admitted to nospital where his 'eg was in traction for two or three wertss. Prior to the eccident tne appellant said that his mein hetbies were swinming, running end athletics and that he had engaged in some weight lifting and judo. Since we hive retched , conclu- ion that the anount awarded for loss of carninzg cap rcity was inadeguate it 18 appropriate to exdiane Sc cmount a.arded for pain, suffering and loss cf amenities « Little more cixcely then would otherwise be the case. We are quite cavisfied that the arount $9,000 was not teo hush. It mast be remembercd thet up to the date of *)> trial the avoolient had suffered consideradle poin ad . retucuuwe. an the activities in which Oo ne couid cugage. VWhis clearly hed a sabslantial effect on his engoyrent of the amenities of Jife. There is evidence thav he. wall sus *1ucd ciscomfurt, some measure of pain and restricted mobility for the rest of his life. It is only reasonabic 19 conclu' tahat, because of the Timit2c1on in the activities cpr. to hen, his opiortunity to engoy the amenitics of life nes Tren sicnisacancly reduscd because IU of the accadent. Jn all the circurslsnces we u_nsider a figure of [9,000 was too low anc tian an emount of $14,000 is appropriate for puin, sulferiny and loss of amenities. The overall figure for rencral damages, which would result from vorking upon the Lacis that on approv-riate amount for th? leus of earning capacity is 429,000 and an appropriate avount for pain, suftecing and loss of the amenities of life 12 £14,C00 would be "£h,OCo. Cn this basis the total avard for dwrages vould be %61,739.° 9. Finally, treating this figure as a single sum of money, and dearins in mind the nced to guard ayainst any "overlapping", we consider that the figure of $61,739.19 represents a fair and reasonable compensation for the injuries received. It is appropriate to add thet this view does not disregard the finding of the learned trial gudge that he was not satisfied that the appellan zy had made simcere and reasonable cffcrts to obtain employment vithin his capacity, or to rehekilitate hauself within has own capacity, but wedo not regari that zs a finding tlat further effor.3 by the 2p. llant .orlie have resulted in himoebtaining fvivable ex ploynent nor thet sincere and reacunetile efforts in the future Ly the plaintaif would enavle nin te eteen gurtaple employnest, Accordingly the appeal is allowed with costs and it is ordered that the respondent pay the appellant's costs of the appeal and that the order of the Supreme Court of the Australian Capital Territory be varied by the substitution of the sum of $61,739.19 for the sum of $38,739.19. Ben Ce) 2A Tanithers ; ———) , vt VE hice 4 2H WAY A ™ (vey . oF Ye od - Sy YY "AL ee t Chon bb ot mate hen fo) Dats wPeawice Copyud the io? Sudgment herein of ho g doncur moe Paya ak , ip Abn, e Log. Asgcstate Y ee VY —ewerb tS The Sate eceeteaenenmnind atid