wt CATCHWORDS Damages - award of damages for personal injury - challenge to amounts included in award for past and future loss of earnina capacity and for general damages ~ no question of principle. EMIDIO LUCINO CIUFFETELLI v. DAVID MILLER No. A.C.T. G31 of 1986 Coram: Sheppard. Everett and Miles JJ. Date : 15 December 1986 Place: Canberra = 6. JAN 1987 FEDERAL Gouar op / 7 austria OF 7 j PRINCIPAL cy REGISTRY "a A Sy i er =D IN_THE FEDERAL COURT OF ANSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. A.C.T. G31 of 1986 ) ) GENERAL DIVISION CORAM: PLACE: DATE : On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: EMIDIO LUCINO CIUFFETELLI APPELLANT AND DAVID_MILLEP RESPONDENT SHEPPARD. EVERETT and MILES JJ. CANBERRA 15 DECEMBER 1986 MINUTES OF ORDER THE COURT ORDERS THAT: - i. 2- The appeal be allowed. The amount of the judgment entered in favour of the appellant in the Supreme Court of the Australian Capital Territory be varied bv increasing it from $127.473.28 to $157,473.28. The respondent pay the appellant's costs of the appeal. 2. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. A.C.T. G31 of 1986 wee weve On appeal from the Supreme Court of the Australian Capital Territory BETWEEN : EMIDIO LUCINO CIUFFETELLI APPELLANT AND: DAVID MILLER RESPONDENT CORAM: Sheppard, Everett and Miles JJ. DATE : 15 December 1986 REASONS FOR JUDGMENT THE COURT: This is an appeal from a judgment of the Supreme Court of the Australian Capital Territorv (Gallop d.) delivered on 12 Mav 1986. The judament was given in an action in which the appellant sued the respondent for damages for personal injury. Liabilitv was not in issue and the only question was the amount of the appellant's damages. In the appellant's submission the award of damages was too low. 2. The amount of the judament is $127,473.28 and was made up ag follows:- "General damages 6 30,000.00 Past economic loss 60,000.00 Loss of earnina capacity 20,000.00 Agreed medical expenses 10,033.37 Aareed Fox v. Wood component 7,439.91 Total $127,473.28" The reference to the Fox v. Wood component is a reference to the component required to be included in the award by the decision of the High Court in Fox v. _Wood (1981) 148 C.L.R. 438. The component represents the additional loss occasioned bv a plaintiff havina to repav the aqross amount of workers' compensation when he will have the benefit of onlv the net amount after tax. In the appellant's submission the amounts included in the award for general damages, past economic loss and loss of earnina capacitv, that is, future earning capacity, are each too low and should be the subject of substantial increase. Additionally, it is submitted on behalf of the appellant that the amount of the award, looked at as a whole. is itself too low and requires increasing, In order to understand the submissions of the parties, it is 3. necessarv to refer to the evidence and also to the fudament in order to see how the matter was approached by the learned primary Judge. The appellant was born on 13 January 1950 in Italy. He came to Australia in 1964. At that time he had had about five vears of basic schooling. It would not appear that he had much more schooling in Australia. His ability to speak and understand Enalish is poor. He cannot write it and it is obvious that he has difficulty in understanding spoken English on occasions. The appellant is married with three children. Since he has been in Australia he has had employment as a gardener. a plant operator and a cleaner. His principal occupations have been those of a plant operator with various undertakings in the Canberra area and of a cleaner. The appellant was intured when run over by a tractor onl March 1981. He sustained the following iniuries:- a fracture dislocation of the right forearm: a severe sprain of the medial ligament of the right knee; a spinal disc protrusion at the L4/5 level. He was admitted to the Calvarv Hospital on the dav of the accident and discharged nine davs later. Durina this time he was under the care of an orthopaedic surgeon, Dr. McNicol. who performed an operation to reduce and internaliv fix the fracture of the riaht forearm with a compression plate. After discharae he made slow but steadv progress. His knee continued to qive 4. trouble. On 1 July 1981 a minor procedure was carried out and the knee examined. No sianificant lesion was found. In September 1981 he was again admitted to the Calvary Hospital. The plate in his wrist was removed and the distal end of the ulnar excised. In November 1981 he had vet a third operation on his arm. This was carried out in order to correct a deformity of the radius and for further plating. The appellant was last seen bv Dr. McNicol on 9 April 1986. Of Dr. McNicol's examination his Honour said:- ",.. it was noted that the plaintiff had a good range of movement in the right wrist but was still complaining of pain and swelling with use. The plaintiff's power grip was reduced and Dr. McNicol assessed this in evidence at about 50% or so. In Dr. McNicol's opinion the plaintiff's weakened right wrist is a permanent condition and will remain much the same. This disability will interfere with his abilitv to engage in some Manual occupations." His Honour then referred to examinations conducted for medico-leqal purposes bv a consultant surgeon, Dr. Arnold Mann. He examined the appellant on 16 September 1983, 14 August 1984 and 4 March 1986. His Honour referred to Dr. Mann's opinion that the appellant's grip seemed to be "somewhat better than previously". By March 1986, it had, in Dr. Mann's' opinion, improved from a residual disability of between 5 and 10 per cent, which he had found during his earlier examinations, to somethina more approaching 5 per cent. In Dr. Mann's opinion the wrist had stabilized. 5. Despite early trouble with his knee the appellant's condition resolved and there is now no complaint made in relation to the consequences of the injury to it. His Honour then turned his attention to the condition of the Plaintiff's back. He referred to a number of medical examinations which the appellant underwent and to an operation carried out on his back on 29 November 1982. The operation was carried out by a neurosurgeon, Dr. R.L.G. Newcombe. Dr. Newcombe carried out some investiaations prior to performing the operation on 29 November. The detail of the operation is described in his Honour's judgment and in a report prepared bv Dr. Newcombe. Without qoing into the technical detail of what was done the operation was performed ta correct the presence of a protrusion at the L4/5 level of the lumbar spine. There was an issue as to whether the protrusion had been caused or exacerbated as a result of the accident. After reviewing the medical evidence his Honour said that he was satisfied on the balance of probabilities that the appellant did suffer a spinal disc protrusion at the L4/5 level, or alternatively an aaaqravation of a pre-existina condition at that level. in the accident. He proceeded to the assessment of damages accordinaly. Elsewhere in the medical evidence the procedure carried out by Dr. Newcombe is referred to as a laminectomy and we propose to 6, refer to it as such in what follows. We do that not unmindful that the procedure described in Dr. Newcombe's operation note appears to have been a more extensive one. As is so frequently the case in matters of this kind. the issues between the parties centered upon the question of what earnina capacity the appellant has compared with what he had had prior to his iniuries. It was the respondent's contention that the appellant was, in practical terms, fit for his pre-inijuryv work. It was the appellant's contention that he was not. The relevant matters to be taken into account in determining the question at issue were the appellant's evidence of his disabilities and the medical evidence. His Honour formed an unfavourable view of the appellant as a witness. The essential paragraphs of his Honour's jdudament in which he agave reasons for his adverse views on the appellant's credibility are as follows:- "My initial impression of him as a witness of truth (sic) was substantially confirmed by films of the plaintiff. depicting him doing various things on18 February 1984 and 28 April 1985. Thev show him with two of his children walking quite brisklv and apparently without disability in a shopping area. Thev also show him at his home and doing some work on a backhoe parked at the back of a carport. I accept the evidence of Mr. Dickson, an insurance loss assessor and investigator retained on behalf of the defendant, that on 28 April 1985 he took the films shown in court and saw the plaintiff over a period of about four hours at his home. In that time for a period of about 40 minutes the plaintiff was seen to be doina work on the backhoe. He stepped up 7, and down from the backhoe many times in that period and was using a screwdriver and small shifter in his riqght hand. No obvious restriction in movement or activity could be observed. Despite the poor quality of the film I accept Mr. Dickson's evidence that the plaintiff appeared to be repairing and servicing the backhoe. When shown the film in court and asked to aaree that he was the person depicted working on the backhoe, the plaintiff denied that it was him. He said that it was his son. In my assessment of him the plaintiff lied in evidence about this matter. Earlier in his evidence and before he was shown the film, he had conceded that the backhoe was at his house for two or three davs about one vear ago and that he had done some work on it in the nature of repairs. As the plaintiff was, in my assessment, deliberately untruthful about this matter. I am verv sceptical about accepting his evidence qenerally, particularly where it cannot be tested. For instance, it is more difficult to accept the plaintiff's complaints of subjective matters, such as headaches. Furthermore, it is difficult to escape the conclusion that the Plaintiff can do much more than he was prepared to admit". In order properly to understand what his Honour has said in these paragraphs, it is necessary to refer to some of the evidence of the loss assessor, Mr. Dickson, who took the photographs. Mr. Dickson said that he made observations of the appellant on two occasions. 18 February 1984 and 28 April 1985. The observations to which his Honour referred in the passage quoted from his iudoment were those made on 28 April 1985. The film is indistinct and it is difficult to identify people in it. But Mr. Dickson's evidence was that the central figure shown in the film was the appellant whom he identified in court. His 8. Honour accepted this evidence. There was no submissi was on that he not entitled to do so. Mr. Dickson's evidence of hig observations was as follows:- "On 28 April, (1985), I saw him on many occasions step up to and down from the rear of a back hoe - I was going to call it a front-end loader - a back hoe. I clearlv saw that. I attempted to film it and as vou saw, some of the film does not show that. When the telephoto lens was used, and you saw some of it in the film, I had a clearer view of what he was actually doing. He was using a screwdriver in his right hand, at one stage, and he was using also what appeared to me to be a small shifter. The plaintiff, on several occasions, returned to the garage. At one stage he left the area that I have described and he went around to the front of the front-end loader and he did something else. I saw that. I attempted to film it. but vou did not see it. Do vou want me to explain it? Yes. What did he attempt to do? ---He simplv bent from the waist, and he knelt in under the front of the back hoe. He was there probably three or four seconds. He stood up and walked back around the other side and disappeared. Did vou notice anv obvious restriction in movement as he was performing these activities? ---No, not at all. How lona were you there this day on surveillance? ---I was there from 7 am until. I believe, something like 11.30. I would have to check nv notes. I actuallv saw the plaintiff for about 40 to 45 minutes, and the filming time, I think. was 31 1/2 minutes - of exposure time". Mr. Dickson said that he had seen the back hoe at the premises on a later occasion which was about six weeks after 28 April 1985. Mr. Dickson was cross-examined extensivelv about his 9. observations. It was suaaested to him that he could not see the appellant very clearly. He resisted these suagestions. As we have said. his Honour accepted Mr. Dickson's evidence and was therefore entitled to have regard to what he said in the earlier quoted paragraphs of his evidence in order to base his findings concerning the appellant's credibility. We should say that we ourselves saw the film. It is most indistinct and, without Mr. Dickson's evidence of his observations, it would not be very helpful. But Mr. Dickson's evidence. accepted as it was bv his Honour. establishes that the plaintiff on 28 April 1985 performed the work and the range of movements which were described. The appellant was cross-examined about working on the back hoe. His evidence in this respect is as follows:- "MR. COSTIGAN: Mr. Ciuffetelli, that garage was your garage, was it? ---Yes. And that was vou on the back of the front end loader, was it? Do not vou understand mv question? ---Not quite. You saw the film taken of aman at' the back of the aqarage apparently on something above the level of the floor. You saw that man at the back, did not you? ---Yes. I think it is my son. Your son - is that the truth? ---Yes, because actually I have been out to Tony from time to time when he got a problem with his car I sort of aive him the right spanners he required for the job and also I qive him advice. You have been on the back or on top of the front end loader (i.e. the back hoe referred to bv Mr. Dickson) in the same wav that the man in that film was on the loader, have not you? You have done that kind of work. have not vou? ---Yes. - 10. That was in February last year doing repairs on the front end loader, were not vou? ---Sorry. In February last year, 1985, that was when that film was taken, you were doing work on the front end loader, were not you? ---I do not know. Is that the only time vou have ever done that kind of work? ---No, I done a few times. But the evidence recalls that on that occasion you were doing it for a considerable period of time. How lona do you sav that you were doing that work? ---I do not know. about half an hour. Half an hour, that is all. is it? What exactiv were you doina? ---Just aqivina the right spanners",. The appellant denied that he was working on a front end loader as the plant was described to him. He said that he was working on a motor car which he described as "the Camira". He said that it was not possible to work on the front end loader in the qarage and that if work were done on it, it was done in the vard. Importantly the appellant agreed that, although not on the occasion on which the films were taken, he had done work on the front end loader in front of the garage. He said that he had done this a couple of times. We must confess. from our observation of the film. that we think there is something to be said for the appellant's evidence that it was not the front end loader or back hoe on which he was working but the motor car. But nothing turns on this because Mr. Dickson's evidence establishes that he was in fact working on the back hoe. This was his Honour's finding and we see no reason to 11. disturb it. The matter is not of areat importance because of the appellant's concession that, if not on this occasion. then on others, he did do work on the back hoe. The important question is what significance this evidence has. There are two points; firstly, his initial statement that he thought it was his son who was working and secondly, what indication of his earning capacity is given by the work which he admittedly did on the front end loader on some occasions. We should add to what we have said that the appellant's family is young. There ig a photograph of it in evidence and his eldest son appears to be no more than an early teenager. It would not, in our opinion. be possible to confuse the appellant himself with his eldest son. It is next necessary to make reference to his Honour's findings concerning the appellant's pre-injury work and earnings. At the time of the accident the appellant had four different jobs. He was emploved by the Canberra Rex Hotel as a cleaner. He had commenced that employment on 25 January 1981. He was also emploved by a Mr. Marripodi as a casual plant operator. He had been enaqaged in this casual employment from September 1980 and was earning about $45 per week after income tax from it. The appellant also had a cleaning contract from a company, Gold Star Cleanina Company Pty Limited, from which he was making a profit of $354 per week. Finally, the appellant had a small income from a rotary hoe business which he had commenced towards the end of 12. 1980. He was earning about 840 per week after tax from that business. His Honour found that the appellant's net earnings at the time of the accident were $418.72 per week. For the purpose of ascertaining his entitlement to loss of earninas between the date of the accident and the date of the hearing, his Honour took this figure as a startina point. but rounded it off to $400 per week. His Honour said that in order to earn this money the appellant needed to work for 84 hours per week. This longa span of hours was new to the appellant because in previous vears he had had only one job, whether as a plant operator or as a cleaner. His earnings after income tax for the year endina 30 June 1980 had been $8,000, for the vear ending 30 June 1979, $6,000 and for the vear ending 30 June 1977, $9,000. In those circumstances there was obviously a question whether the appellant would have gone on working at four different tasks involving him in 84 hours work per week for an indefinite period. Whatever his Honour''s views as to the credibility of the appellant, there would, even ina case brought by an honest plaintiff. have arisen the question of whether it would be safe to accept a figure as high as $400 per week for the entirety of the period of five vears between the accident and the hearing. Be that as it may. the fact that the appellant was workina 84 hours per week in order to earn $400 per week at the time of the accident had another and independent sianificance in his Honour's 13. mind. It was that the appellant, havina been infured as he was and having been for a time unable to carry out his previous activities, would be reluctant to return to a span of hours which was so extensive. If he did not. but worked ordinary hours instead. he would not be likely to receive as much as he was in fact receiving by way of workers' compensation. This, in his Honour's view, was one of the matters which had persuaded the appellant not to endeavour to work since the accident. He did not have the incentive to do go. This reinforced his Honour in his conclusion that the appellant was not putting his best foot forward so far as work was concerned and was thus unreliable in the evidence he gave ag to his capacity for work. The appellant qave evidence as to what work he had been able to do since the accident. The appellant said that he had tried to drive plant with an excavation company. After about one anda half hours he had to give up "because of a sore back and swellina of the arm". He said that he would not be able to do work asa taxi driver. He had applied for such a job but failed to be selected. He said that he could not sit all day. apparently because of his back and could not lift luggage, He tried to do some cleaning and earned about $200 at one stage but considered himself unfit for a cleaning job at the time he aave evidence. He was unable to think of anything that he could do in the wav of employment. He had undergone rehabilitation for one year and was makina tables and chairs. He said that he qave it up because he was told that he was no good at it. He had applied to the 14, Commonwealth Emplovment Service for work but was unsuccessful. His last application was about a vear before the tiudament. He gave evidence of looking for jobs in newspapers and of not findina any. The appellant has been on workers' compensation ever since the accident. It is clear from his Honour''s judgment that, not only because of the circumstances surrounding the showing of the film and the appellant's statement that the person in it was his son, but for other reasons as well, his Honour. as he was well entitled to do, formed a most unfavourable impression of the appellant's credibility. He was thus not bound to accept the appellant's evidence of the limitations on his earning capacity. He was also well entitled to say, as he did, that he was reluctant to accept any part of the appellant's evidence unless it was capable of being tested against objective facts established otherwise. It is next convenient to refer to the way in which his Honour approached his assessment' of the appellant's loss of earning capacity. As mentioned, his Honour rounded off the pre-inijury earninas fiqure to $400 per week. He applied this fiaqure to the first two vears which followed the accident and assessed the loss up to that time at $40,000. He thought that for the next three years the figure should be $300 per week rather than $400 per week. Although it does not appear from his judgment. his Honour no doubt took this course because he thoucdht it unsafe to conclude that the appellant would have gone on workina 84 hours 15, per week indefinitely. We have some misaivinas about what hig Honour has done simply because waaqes would have increased over this period and would have tended to offset the discount which his Honour was undoubtedly entitled to make. However. we do not think that what his Honour has done reveals anv error. In round terms $300 per week yielded the sum of $45,000 for the three years, but upon the assumption that the appellant remained totally incapacitated during that time. His Honour did not award $45,000. He awarded $20,000. His reasons for doing so were expressed as follows:- "Bearing in mind the unfavourable impression that I had of the plaintiff as a witness of truth and taking into account all the medical evidence, I do not think it is reasonable to reaard the Plaintiff as totally incapacitated since the 1981 accident. I think he certainly had some residual earning capacitv not later than two vears after the accident. In all the circumstances I provisionally assess the sum of $60,000 for past loss of earning capacity". In the submission of counsel for the appellant his Honour ought not to have reduced the fiaqure of $45,000 with the consequence that the amount awarded in respect of past lost earnina capacity should have been $85,000 rather than $60,000. His Honour then turned to the question of future economic loss. He said:- "With regard to the future. the evidence is that 16. the plaintiff could be aiven work in his brother-in-law's cleaning business if he was capable of doina the work. If he could work as a Plant operator, he would be remunerated at the rate of $12 per hour. He would be required to work an 8-10 hour day five or six days per week. There is just some evidence that he might not be able to work to that extent. I am left with the impression, however, that he will be able to do 80. To make allowance for the possibility that he will not, I think it is reasonable to allow some amount for loss of earning capacity. I provisionally assess the sum of $20,000". Two things need to be said about that paragraph. Firstlv, his Honour's provisional assessment of $20,000 became, after he had considered the matter overall, his actual assessment of loss of earning capacity. Secondly, it is necessarv to refer to the evidence of the appellant's brother-in-law, Mr. Belmonte. Mr. Belmonte has a company which operates plant and does excavation work around Canberra. He also runs a general cleaning companv. Mr. Belmonte agave evidence that the appellant tried work both as a cleaner and as a plant operator but was unable to do either job without a great deal of difficulty. Eventually he had to give each job up. This occurred in 1983. Mr. Belmonte also gave evidence of the earnings of a plant operator which are referred to in the paragraph quoted from his Honour's judaqment. On the basis of what his Honour said, it would appear that he thought that in the future the appellant would be able to do the work both of a plant operator and a cleaner. He therefore took the view that the appellant was to all intents and purposes fullv fit for work in the future. To quard against the possibility that he might not be fully fit he allowed the sum of §20,000 as a buffer 17. or for the risk that the appellant might not be fully fit for work. In passina it may be noted that on the 3 per cent tables 820,000 paid to a man aged 36, as the appellant was at the date of judgment, would represent the sum of 820 per week if paid to age 65 or $22 per week if paid to age 60, That, of course, is not the way in which his Honour arrived at the fiqure of $20,000, nor is there anv reason why it should have been. The only reason for noting the weekly sums which it represents is to put the figure in context. It was the appellant's submission that notwithstanding his Honour's view of the appellant as a witness, the uncontested medical evidence as to the appellant's fitness for work should have led his Honour to award an additional sum of §25,000 for pre-judament loss of earnings anda much larger figure' than $20,000 for future economic loss. The next step is, therefore, to make an analysis of the medical evidence to see whether the appellant's submission is made out. As earlier mentioned, the appellant''s original treating doctor was an orthopaedic surgeon, Dr. McNicol. The back operation was carried out by a neurosurgeon, Dr. Newcombe. Both these doctors made a number of reports and both gave oral evidence. We qo first to the evidence of Dr. McNicol. We have earlier referred to the various procedures carried out by Dr. McNicol in relation to the appellant's arn. On 30 April 1982 Dr. McNicol said, after having seen the appellant on 7 18. April 1982, that the appellant was qoina to require lona-term rehdbilitation of his wrist to develop motor power. He said that he could recommence work if his employers could find light sedentary duties for him. As mentioned, Dr. McNicol's final opinion was given in a report dated 15 April 1986. He there said:- "This man informed me that previously he was occupied as a tractor driver, a cleaning subcontractor and cleaner and he had a small side business doing rotarv hoeing. He tells me he is still enaaged in these activities as vibration in particular seems to aaqgravate his wrist (sic). Certainly his power grip is significantly reduced as a consequence of his injurv. From a prognosis point of view I believe this man is alwavs going to have a weakened right wrist and as such this will interfere with his abilitv to engage in manual occupations. He could however work ina sedentarv position if he had sufficient training and skills. From the point of view of his previous occupation I believe he is close to 100% incapacitated at this time". In his oral evidence Dr. McNicol said that the appellant's wrist was permanently weakened "compared to his other side with respect to his power grip". He said that the appellant hada qood range of movement, but removal of the distal end of the ulnar would result in permanent weakening of the wrist. Dr. McNicol expressed the opinion that the appellant was unfit for heavy manual work, but thought that there was no reason whv he could not be enaaqed in a clerical position, perhaps working as a storeman "in a sort of sheltered workshop environment. But where it involved, sav, heavv lifting, or a lot of manual work, that 19, would probably be - he would be incapable of doing that to any satisfactory extent". As to the appellant's future. Dr. McNicol said that the wrist would remain the same, He added, "I mean, one cannot be doqmatic about that, but my judament would be it will remain much the same". It is important to refer to some of Dr. McNicol's cross-examination. This included the following questions and answers:- "And I take it, then, that you, like anybody else, is in the situation that you have to accept the plaintiff's complaints about loss of power, or the onset of pain? ---Well, of course. I mean, IT have to believe what he tells me, and I did not have any reason to disbelieve him. Yes. For instance, if it were to be demonstrated to you that he was capable of using the wrist for movement such as screwdriving or a spanner on nuts with the right arm, is that a sort of - is that the sort of activity vou would anticipate him doing without discomfort, having regard to your present assessment of him? ---My judgment would be that he - I mean. he has a full range of wrist and forearm movement. that he would be quite capable of screwdriving and turning a spanner. Now. whether he could sustain that activity for lona periods, I would not know. I mean, he would be the iudae of that. You would have to leave it to him? ---Yes. It is quite possible that he would accomplish such activities without discomfort so far as you are concerned? ---I believe so, ves. And, doctor, that type of activitv puts some considerable strain ona wrist, does it not? ---It would depend, of course, for how lona the activity was going on for. how difficult the nut was or the screw was as to how much power grip was needed". 20. Dr. McNicol also said that the appellant had had a full ranae of movements in the wrist from some time in 1983. In Dr. McNicol's opinion the problem was not restriction of movement: rather it was weakness of arip. He said that the operative procedure performed on him would result in permanent weakness of the wrist and almost certainly permanent discomfort "with vibrational-type activities". Dr. McNicol was cross-examined extensively on the sort of work the appellant miaht be able to do. At one stage he seemed to concede that some cleanina jobs might be within the appellant's capacity. Later, however, he returned to the earlier thrust of his evidence and said that he thought that the appellant could work ina sheltered position, for example, in a warehouse or a store where he was doing light lifting or shop work, but that a three hour shift where the appellant was engaged in continual moppindg would create difficulties for hin. It is to be observed that: Dr. McNicol's evidence was restricted to the condition of the appellant's wrist and knee. From the latter condition he made a complete recovery. Dr. McNicol did not deal with problems which the appellant says he has in his spine. On 25 April 1983 Dr. Newcombe reported to the appellant's solicitors after the operation on the appellant's back. He said that the appellant needed an alternative job to his previous labouring work. He added, "I do not recommend that he returns to 21. work involving heavy lifting and bending in the future". He said that the iniury had curtailed the appellant's employment prospects and added, "... especially in the current market and in this sense he remains unemployable following his injury until such time as there is reasonable prospect of sedentary or semi-sedentary employment for him". In his oral evidence Dr. Newcombe said that he had seen the appellant last on 10 April 1986. He said that the appellant complained of some back pain on prolonged sitting. There was no sciatica. straight leq raising was full in range and the appellant appeared to have a aqood ranae of lumbar spinal movement. There were no sensory, motor or reflex changes in the lower limbs. Much of the cross-examination of Dr. Newcombe was taken up with questions desianed to raise doubts whether the appellant's back condition was a result of the accident and whether the operation was. in any event, necessary. Strangely, Dr. Newcombe was not asked anv questions by either counsel as to the appellant's fitness for work. In other words the onlv evidence about his fitness or otherwise for work at the time of the trial, so far as anv treating doctor was concerned, came onlv from Dr. McNicol and then in respect of the wrist. not the back condition. The appellant had been seen in 1982 by a neurologist, Dr. Danta. He reported on 5 August 1982 that he thought that the 22. appellant's backache was basically a mechanical backache. We are not sure what this means - perhaps it only means that it wage mechanical rather than hysterical. Dr. Danta did not see the appellant again and did not give oral evidence. His opinions were therefore not helpful in relation to the appellant's capacity for work in 1986. The appellant was seen for medico-legal purposes by Dr. Arnold Mann who is a consultant surgeon, and Dr. Alistair Robson who is a neurosurgeon. It is no criticism of Dr. Robson to say that his opinions are not of assistance in reaching a conclusion on the present problem. That is because he opened the first of his reports, which is dated 21 November 1983, with the statement that he felt "terribly reluctant to make pronouncements about people's ability to work other than in a very qeneral sense when they are under the care and continuing attention of other practitioners". He did however say that. although the wrist was imperfect. he thought that one could work with it and that it would not stop the appellant from driving a tractor "although it might possibly interfere with his abilitv to use something like a shovel for the whole day". In relation to the back he said that he himself believed that the appellant had pain. He said that he had considered whether he should believe the appeliant or not and went on to give reasons why it was that he did believe him. Dr. Robson was thus of opinion that the acceptance or rejection of the complaints which the appellant makes is an all important factor in determining his capacity for work. Dr. Robson saw the 23. appellant aqain in October 1983. In relation to the wrist he said that he had given up "testing people's power as it is simply @ valueless exercise". In relation to the back he again indicated that he was very much in the appellant's hands. He said, "How this (the back) is up to him to describe, and I certainly have no way of putting any measure to that". Dr. Robson did not see the appellant after October 1983. Like Dr. Danta he cannot throw light on many of the questions in issue in this appeal. His oral evidence adds nothing to what he has said in his reports. Dr. Mann first saw the appellant in September 1983. He thought the range of movement the appellant had in his wrist was excellent. He thought some loss remained and that the appellant also had loss of strength of grip and some residual pain. He assessed the residual disability remaining in the lower part of the right arm to be between 5 and 10 per cent of its function. As regards the appellant's back, he said that he supported the opinion of Dr. Newcombe that it would not be advisable for the appellant to resume heavy work. He added that this, unfortunately, made him virtually unemployable at that time, i.e. September 1983. Dr. Mann saw the appellant again in Auaust 1984. He said that he had improved considerably since he had last seen him and that, if he had some reasonable command of English. there would be many jobs that he would be able to undertake. He instanced 24. the job of a shop assistant. In relation to the spine he said that the situation was that "his spine is fairly aqood now but it is doubtful if it would sustain heavy work". Dr. Mann last saw the appellant on 4 March 1986. He expressed the view that the condition of the right forearm was as previously recorded except that the appellant's arip seemed to be somewhat better than previously. Little was said about the back except that the appellant moved more quickly than in the past and that spinal mobility was better than previously recorded. He said that slow leq raising was present to 80 degrees on each side and deep reflexes were equal and active. In his oral evidence Dr. Mann said that he thought the wrist had improved to the extent that by March 1986 the loss of function in it was closer to 5 per cent than 10 per cent. Dr. Mann agreed that between his first examination and his last the appellant's spinal problem had shown "a marked improvement". Pressed about the consequences of the appellant's spinal condition as thev affected his capacity for employment, Dr. Mann said that he would consider it ill-advised for anyone who has had a laminectomy for a prolapsed intervertebral disc to go back to heavy work. He agreed that there were situations where people had had laminectomies and returned to heavy work. There followed the following question and answer:- "And when you say "inadvisable", that is merely voicing a cautious medical view. Is that the situation? ---Yes, I put myself in the shoes of the patient and I would ask myself what would I 25. do in those circumstances and the answer is, I would not risk gettina the same problem aaain. But. of course, what people do with that advice is another matter", It is now appropriate to come to conclusions on the principal submission which was made in support of the appeal. The appellant has been left with some residual disability in both his lower right arm and his lumbar spine. His Honour considered that neither of these was now having a great effect on his capacity for his pre-injury work. In our opinion his Honour was well fustified in reaching the conclusion he did insofar as the appellant's case rested upon the condition of his wrist. There is some difference between the emphasis to be found in Dr. McNicol's reports and evidence on the one hand and the evidence and reports of Drs. Robson and Mann on the other. But, having had the advantage of seeing the appellant and the doctors, his Honour was in the best position to weigh the matter up. Undoubtedly there had been substantial improvement in the condition of the appellant's wrist over the years since treatment of it had concluded. We think the best view of it on the face of the evidence is that the restriction was no more than the 5 per cent or thereabouts deposed to by Dr. Mann. The spine presents a more difficult problen. Despite the fact that Dr. Newcombe was not asked about the appellant's fitness for work when he gave evidence. his opinion expressed in his report of 25 April 1983 was that he did not recommend that I 26. the appellant return to work involving heavy lifting and bendina in the future. That statement oudht to be read as applying, not only in 1983, but for the rest of the appellant's working life. That is how Dr. Mann understood it. He was of the same opinion. He did not deny that some people who had had laminectomies went on to engage in heavy labouring work, But his opinion was that it was unwise for such a person to do such work because of the consequent risk to the spine which would be involved. It must follow, although Dr. Mann did not in terms say so, that in his opinion a person in the appellant's condition would be justified in refusing heavy work involving lifting or bending. In the absence of cross-examination on that point, that too must be taken as the effect of Dr. Newcombe's evidence. No other doctor, with the exception of Dr. Danta, expressed views about the appellant's spinal condition. The only relevant evidence is, therefore, that of Dr. Newcombe and Dr. Mann. What Dr. Newcombe and Dr. Mann said needs to be carefully understood. The work which the appellant would be ill-advised to do is heavy work involving lifting or bending. The fact is he was not. prior to the iniury. engaged in any such work. Certainly cleaning work would not fall into this cateqory. There is, however, more difficulty with plant operating. The evidence about this work is scant, but, although it does not involve lifting or bending, it is work which tends to impose stresses and strains on the body of the operator, particularly if the plant is operating on rough ground. On the other hand, a back hoe digging 27. a ditch from a fixed position on level ground would not present this problem. His Honour thought that the appellant was fit for work both as a plant operator and as a cleaner. It was to the earnings of a plant operator that he referred in the critical part of his judgment. He said that, if the appellant could work as a plant operator, he would be remunerated at the rate of $12 per hour, but he would be required to work an eight to ten hour day five or six days per week. It was then that he said that there "is just some evidence that he miaght not be able to work to that extent". It was for that reason that he included the sum of $20,000 for loss of earning capacity in the award. However his Honour had earlier said that the evidence was that the appellant could be given work in Mr. Belmonte's cleaning business. So much is undoubtedly the case provided the appellant is fit for such work. In our opinion the medical evidence given by Dr. Newcombe and Dr. Mann was such that his Honour should not have found that the appellant was generally fit for the work of a plant operator. It would have been open to him to find that he was fit for some such work but not all forms of it. As we have earlier indicated, we are of opinion that it was open to his Honour to find, as he did, that the appellant was fit for work as a cleaner. We bear in mind Dr. McNicol's reservations concerning mopping for a continuous period of three hours. But we think his Honour was entitled to discount that evidence in the liaht of Mr. Dickson's observations and Dr. Mann's evidence. It follows that the 28. appellant is by no means totally incapacitated for work. He is capable of working as a cleaner and he is capable of doina some of the work of a plant operator, No doubt there are other unskilled or semi-skilled jobs within his capacity notwithstanding his difficulties with the Enalish language. The question then arises whether the sum of $20,000 is sufficient to compensate the appellant for the loss of earning capacity which he has suffered. Plainly he was fit for the full work of a plant operator prior to the accident. He is now not fully fit for that work. Because of his ability to do other tvypes of work, particularly cleaning work, this may not be of substantial economic consequence to him in the future. On the other hand it may be. In this respect it should be mentioned that he is not assured, throughout his total remaining working life. of the support, for employment purposes, of his brother-in-law. Mr. Belmonte, who said in evidence that he dismissed the appellant after a short period of work about 1983 because he could not satisfactorily carry out his duties. Having reflected on the matter, we would not ourselves be disposed to change the approach adopted bv his Honour of treating the appellant as having a substantial capacity for work, but of taking the precaution of awarding him a sum of money to compensate him for the risk or chance that such incapacity as he has may, on occasions, prevent him from working in the future. The question is whether the sum of $20,000 which his Honour has included in the award is so low as to require the interference of 29. this Court. This question has caused us a degree of anxiety. On the one hand, it 1s equivalent only to a sum of about $20 per week paid over the appellant's expected remaining working life. Viewed in this way it is not a sum of any significance bearing in mind the limitations which the appellant's back condition imposes on his capacity for work. On the other hand, the sum is being awarded, not as representative of an actual loss which he has suffered, but rather as a buffer to compensate him for the risk or chance of periods of unemployment in the future or periods when he will not be able to earn as much as would have been the case had he not been injured. There can be no question but that he was a hard working man as witness the fact that he was workinag 84 hours per week at the time of the accident. Whilst he mav not have kept that up indefinitely, it seems not unlikely that there would have been periods when he would have worked verv long hours with the consequence of hidh earninas. Having taken these matters into account, we have reached the conclusion that the sum of $20,000 was substantially too low and requires increasing. We would increase it to the sum of §50,000. As to the other components of the award which were challenged, namely, the amount which was awarded for pre-judqment loss of earnings and the amount which was awarded for general damages, we do not consider that they warrant the interference of this Court. For these reasons we would allow the appeal with costs. We sp? 30. ~ 4 ' would order that the jfudaqment appealed from be varied by increasina the amount of it from $127,473.28 to §157,473,28. | certify that this and the Aq preceding pages are a true copy of the reasons for judgment herein of the Court Lon. Fthser Assoclate Dated (5 DECEMBER /786 Counsel for the Appellant: Mr. P. Sheils, 0.C. with Mr. H. Marshall Solicitors for the Appellant: Gillespie-Jones & Co. of Fyshwick, A.C.T. Counsel for the Respondent: Mr. F. Costigan, Q.C. with Mr. P. Dodson. Solicitors for the Respondent: Abbott Tout Creer & Wilkinson of Canberra Citv, A.C.T. Date of hearina: 4 November 1986