MULTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS; PEBMONA PTY LTD v ANGELIDIS IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MAHONEY JJA 19 April 1988 [1988] NSWCA 98 Damages — quantum — industrial accident — appeal on award of interest — cross-appeal on ground of inadequacy — no question of principle — appeal and cross-appeal allowed and damages re-assessed. ORDERS (1) Appeal and cross-appeal allowed. (2) Judgment of District Court other than as to costs set aside and in lieu thereof judgment for plaintiff in sum of $271,568.30, to date from 18 December 1986. (3) No order as to costs of appeal. (4) Defendants to pay nine-tenths of the plaintiff's costs of the cross-appeal. Hope JA On 29 October 1982 the plaintiff, a labourer/jackhammer operator, was injured when he fell through a hole in the floor of a building in which he was working. In the proceedings which he brought in the District Court against his employers to recover damages in respect of his injuries, liability was admitted and the only issue was damages. On 18 December 1986 Godfrey-Smith DCJ gave judgment for the plaintiff in the sum of $146,986.75 made up as follows:- Past wage loss 75,000.00 Interest thereon 21,700.00 General damages, future loss of earning capacity 80,000.00 and future medical and pharmaceutical expenses Interest in respect of pre-trial general damages 13,760.00 Fox v Wood award 4,612.95 Past medical expenses 5,260.96 $ 200,333.91 Less workers' compensation payments made 53,437.16 Judgment $146,896.75 Each of the defendants appealed and the plaintiff cross-appealed. Each of the notices of appeal of the defendants contained six grounds of which five related to the awards of interest or matters relating thereto, and one was that the damages were excessive. The cross-appeal of the plaintiff challenged the award of damages as inadequate and in particular challenged the award by reason of what was said to be either an absence of or inadequacy in the assessment of damages for future loss of earning capacity and liability for future medical and pharmaceutical expenses. 2 UNREPORTED JUDGMENTS The first matter raised by the defendants in respect of interest concerned the amount awarded in relation to the past wage lost. In the event the plaintiff conceded that the defendants' claim was correct and that his Honour had omitted to deduct from the amount of wages in respect of which interest was awarded the payments of workers' compensation which had been made to the plaintiff during the pre-trial period. There is no issue that the sum of $9,091 should be deducted from the amount of interest which his Honour awarded on those wages. The questions as to interest on any amount awarded in respect of pre-trial general damages are more appropriately dealt with in association with the plaintiff's cross-appeal but it is to be noted that both parties agreed at the hearing that by calculation the amount with reference to which this interest was awarded was approximately $40,000. Neither defendant pursued the ground in the notices of appeal that the damages awarded by his Honour were excessive. In his short judgment Godfrey-Smith DCJ said that he accepted the evidence of the plaintiff and his witnesses and that he found the plaintiff to be a witness of truth who did not exaggerate. He accepted the medical evidence called on his behalf and preferred that evidence where there was a conflict with the evidence called on behalf of the defendants. He was satisfied that in the accident the plaintiff sustained injuries to his right forehead, right buttock, two pelvic fractures and a comminuted fracture of the right wrist. He said that the plaintiff had inherent disadvantages in the economic employment market by reason of the fact that he had language limitations - he was a Greek who could not read or write in English, and who spoke only a little English and gave his evidence through an interpreter - and he was satisfied that before the accident the plaintiff was a reliable, conscientious and admirable worker. He was satisfied that as a result of the injuries he had sustained the plaintiff was no longer able to do labouring work or any other work of a heavy nature, that he was confined to light duties, and that he had physical disabilities of indefinite duration which meant that he was not a particularly desirable proposition in the employment market He was satisfied that the plaintiff had tried to obtain work but so far had been unable to do so. He considered that his prospects of future employment even on light duties and on limited wages to be remote or to be unlikely to be long-term. His Honour was satisfied that the plaintiff would indefinitely sustain pain and suffering and would need pharmaceutical relief as well as medical attention arising out of the injuries sustained in the accident. He found that the plaintiff was not able to indulge in any heavy lifting or lengthy walking and that overall he had substantial physical limitations arising from the injuries sustained in the accident. He was further satisfied that the plaintiff suffered psychologically as a result of his injuries and that he had had considerable periods of depression because of his injuries and that such depression was likely to continue. Basing himself on these findings his Honour awarded the sums I have previously set out. Having awarded the amount for past wage loss and interest thereon, he said he was satisfied that the plaintiff would have material future loss of earning capacity and at least some future medical and pharmaceutical expenses indefinitely. His Honour went on to say:- Doing the best I can to arrive at a global figure to compensate the plaintiff for past, present and future pain and suffering, loss of enjoyment of life and interference with the amenities of life, together with future loss of earning capacity and future medical and pharmaceutical expenses, I find general damages in the sum of $80,000, upon which I award interest in the sum of $13,760." His Honour then dealt with the other aspects of the award and arrived at the amount of the judgment. WRJLTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS; PEBMONA PTY LTD 3 ANGELIDIS (Hope JA) (Hope JA) The principal injuries which the evidence showed that the plaintiff suffered were fractures of his right wrist and pelvis and an injury which resulted in a condition of spondylolisthesis in his low back which was either caused initially by his fall, or was an aggravation by that fall of a pre-existing asymptomatic condition. I shall refer later to this last injury which his Honour did not describe in these terms. The plaintiff was born on 15 August 1934 and was thus 48 at the accident, 51 at the trial, and 52 at the time of judgment. After the accident he was admitted to the Royal North Shore Hospital where he had surgery under a general anaesthetic to the wrist. While still in hospital x-rays were taken of his pelvis. He spent two weeks at the hospital and when he left his right arm was in plaster. This plaster was in place for some six to seven weeks, and as well the plaintiff used elbow crutches for three months. He could not sleep in bed and spent most of his time in the lounge room. The plaintiff is right-handed, and his wife had to shave and wash him and to cut up his meals for about three months. There was no improvement in his right wrist after he left hospital and it was manipulated in a private hospital on 17 May 1983. That did not improve the pain and disability which he was suffering. At the time of the trial he was wearing a brace on his wrist for two or three hours a day for protection and pain reduction. Dr Segelov stated that he had half the normal range of movement in his right wrist when compared with the left and another medical witness called by him, Professor Jones, expected deterioration rather than improvement in the wrist. He was in bed in hospital for three days unable to move his right leg before x-rays were taken which revealed the fracture of his pelvis. After discharge from hospital the pain in the front and back of the right pelvis, right hip and right groin became more severe, forcing him to rest if he walked for about 20 minutes. At about one to one and a half years before the trial the pain in the right hip spread down the thigh. He did not sleep for more than three to four hours at a stretch due to the hip pain. He wore from time to time a back brace which Dr. Segelov prescribed for him. The doctors who gave oral evidence at the trial, Dr Segelov and Professor Jones, both expressed the opinion that the condition of spondylolisthesis in the plaintiff's low back was, on the probabilities, caused by the accident, whether caused initially by the trauma or by way of aggravation of a pre-existing condition. The plaintiff's evidence was that he was quite fit and healthy before the accident and that he had worked continuously as a labourer/jackhammer operator up to the time of his injuries. Evidence from persons who knew his work history at first hand confirmed his long period of working at this heavy labour, and indeed spoke most highly of him as a worker. The evidence of Dr Segelov and Professor Jones as to the causal relation between the accident and the spondylolisthesis was confirmed by the evidence in a report of Dr Leigh, whose report was tendered by one of the defendants. In that report Dr Leigh said:- "On the basis of probability the spondylolisthesis is probably related to his fall, if not by cause then by aggravation." Psychiatric evidence which was accepted by his Honour confirmed the plaintiff's evidence that he was suffering from depression. The plaintiff said that for some two and a half years before the trial he found that he could not tolerate noises, felt unhappy, depressed, edgy and tense. He took medication for his depression which did not occur continuously but once every week or two. A 4 UNREPORTED JUDGMENTS psychiatrist Dr Greenberg said that if the plaintiff could not get some reasonably continuous light work he would continue intermittently to be depressed and would require medication. The medical evidence clearly supported his Honour's conclusions as to the incapacity of the plaintiff to do any work of a heavy nature, and also as to his difficulties in finding any light work. Apart from problems inherent in his continuing disabilities, his inability to read or write English and to communicate in English and the fact that he had had very little education and no experience of any kind of office work severely limited the type of work he could do and indeed Professor Jones regarded him as essentially unemployable and doubted the Possibility of any vocational rehabilitation for him. Evidence was called by the plaintiff as to the age to which he could continue to work as a jackhammer operator. He wished to continue this work until at least 65, but the evidence showed that many if not most people stop this work at 60, although some continued until 65. There was also evidence that quite apart from his injuries and their consequence, he may have developed a condition of spondylolisthesis because of the nature of the heavy work he had undertaken in the past and but for the accident would have undertaken before the age of 60. Accordingly, apart from any other matters relating to contingencies, whether favourable to him or against him, they would include the age to which he would be able to work as a jackhammer operator and the possibility of his developing spondylolisthesis in any event. Taking his Honour's judgment literally, he awarded $80,000 to cover the whole of general damages, future economic loss and future medical and the like expenses. Since he awarded interest in respect of approximately $40,000 of this amount, it is to be assumed that that sum is the part of his award which he attributed to pre-trial general damages. On that basis he awarded $40,000 for future general damages, future economic loss and future medical and the like expenses. It has been submitted that a possibility is that his Honour awarded $80,000 solely for general damages and simply forgot to make an award in respect of the other two areas. While that is a possibility, I think that the question of inadequacy must be dealt with on the basis that his Honour awarded $80,000 for the whole of the matters he described. It has been submitted for the defendants that the plaintiff's claims as to inability to work should not be taken at face value, and reliance is placed on a film which was taken of him doing work, on one occasion, on his car. The Court saw the film but in the light of the evidence which his Honour accepted and in the light of his Honour's conclusion as to the plaintiff's credit and his acceptance of the medical evidence called for the plaintiff, and what the film showed, I am satisfied that his Honour's conclusions as to the plaintiffs disabilities and as to their consequences in relation to his capacity to work cannot be interfered with. As I have indicated, one of the continuing disabilities of the plaintiff which the evidence clearly established to have a causal relationship with the accident was the spondylolisthesis in the plaintiff's low back. Since Godfrey-Smith DCJ referred neither to the plaintiff's low back nor to the spondylolisthesis, it is submitted for the defendants that his Honour did not find that the plaintiff suffered this disability as a result of the accident and that since the plaintiff relies upon his Honour's findings and has not sought to vary them, this Court should not take that injury into account in relation to the question of damages. I do not accept this submission. His Honour found that the plaintiff had suffered an injury to his right buttock. Dr. Leigh identified the relevant area of pain as being in the WRJLTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS; PEBMONA PTY LTD & ANGELIDIS (Hope JA) (Hope JA) plaintiffs right sacro-iliac area. This would place it in or approximately in the right buttock. Professor Jones described the pain as being in the plaintiffs "right side of his lower back". As it seems to me this is apt to describe a pain in the right buttock. Dr. Segelov distinguished the pain in the pelvis area from the relevant back pain, but in my opinion his description of it is consistent with it being in the right buttock. Counsel for the defendants has submitted that his Honour probably took his findings from the particulars, but the first particular of continuing disabilities commenced by describing "pain in the lower back radiating across the right buttock". Furthermore, although the plaintiff's wrist disability would no doubt preclude him from doing most heavy work, the medical evidence was unanimous that he was unable to do any heavy work, and that quite apart from the wrist, the low back condition would preclude him from doing that work, in particular from bending, lifting, stooping and climbing. Accordingly, although his Honour does not explicitly find that the plaintiff was suffering from spondylolisthesis as a result of the accident or that this condition was one of the causes of his inability to do heavy work, I am satisfied that his reference to injury to the right buttock referred to or included the low back injury in question and that his Honour's finding as to the plaintiff's inability to do heavy work was based in part upon that implicit finding. The plaintiff's net wage at the time of the accident was $385.24 per week. Of this amount $32.50 was a travelling allowance provided by the award, which was payable to the plaintiff whether he incurred expense in travelling or not. It has been submitted for the defendants that the travelling allowance should be deducted from the amount of the net wage in assessing future economic loss, but in my opinion, in the circumstances, it should not be deducted, and damages should be assessed on the basis that the plaintiff's wage was $385.24 per week net. If the plaintiff had continued to work as a labourer/jackhammer operator to the age of 60, the three per cent tables, applied to a wage of $385 net per week, would produce a present value at the time of the judgment of $143,143. A deduction of 15 percent for contingencies would reduce this amount to $121,671.55. The equivalent figures on the assumption that the plaintiff would work as a labourer/jackhammer operator until 65 would be $216,832 and $184,307.20. If one took the figure for eight years and discounted it by 30 per cent for contingencies, a figure of $100,200 would be produced. Taking into account the need to award a substantial amount for general damages, it is apparent that the award was so low that it was outside the range of a proper exercise of discretion, and should be set aside as inadequate. It has been strongly submitted for the defendants that if the award is set aside, the Court should not re-assess itself because it is not in a position to do so. The proceedings should be remitted for retrial. The defendants rely essentially for this submission upon their challenge to the plaintiff's credibility. If this challenge had succeeded before the trial judge, or if it had succeeded to an extent that left the acceptability of parts of the evidence in doubt, then a good case would no doubt be made that this Court is not in a position to re-assess. However that is not the position. Godfrey-Smith DCJ rejected the challenge to the plaintiff's credibility, accepted him as a witness of credit, and found that he did not exaggerate. He accepted the medical evidence tendered for the plaintiff, he found what injuries were sustained and what their consequences were as regards the past and future working capacity of the plaintiff. There is no reason why the Court should not re-assess as the plaintiff wishes and in my opinion it should do so. 6 UNREPORTED JUDGMENTS I have already described the injuries and disabilities of the plaintiff, who was 48 at the time of the accident, and I have stated my conclusion that the plaintiff's low back disability should be included for the purposes of assessing damages. The plaintiff suffered a very significant injury which has entirely changed his life, left him with continuing, albeit in some respects intermittent, pain and restriction of movement and as well has deprived him of the ordinary enjoyment of life which he was entitled to look forward to, and has made him depressed, nervous and irritable. Account must be taken of the Possibility that he would develop a condition of spondylolisthesis in any event, and this possibility should be reflected in the award. In my opinion the sum of $80,000 is a proper amount to award for general damages. As did Godfrey-Smith DCJ, I would apportion $40,000 of that sum to the pre-trial period and award the same amount of interest in respect of it as did his Honour. As regards loss of future earning capacity, it is necessary to decide whether the award should be based on an assumption that the plaintiff would work as a labourer/jackhammer operator until 60, taking into account the fact that he might work for a further period, or on an assumption that he would do this work until 65, discounting for the possibility that he might not continue this heavy work until that age. In either case, apart from ordinary contingencies, special account needs to be taken of the possibility of his developing spondylolisthesis in any event, and to the prospect that he might at times find some light work he is able to do. This latter possibility is, on the evidence, a very slight but nonetheless must be taken into account. In the light of the evidence I have concluded that the proper approach is to assume that the plaintiff would probably have worked as a labourer/jackhammer operator until 60 but that he might have worked for all of some of the subsequent years until he reached 65, and that in any event he may have found some light work to do during this five year period. The possibilities that I have referred to should be taken account of in the amount of the discount of the capital sum of $143,143 which is the present value of eight years' work at $385 per week net. I have concluded that the possibility that the plaintiff may have continued to do heavy work after 60 and the alternative possibility that he may have done some light work during this period offset the possibilities of his development of spondylolisthesis and of his finding light work given his present condition. Accordingly an ordinary discount of 15 per cent should be applied. This results in a figure of $121,671.55, and this is the amount which should be awarded in respect of the plaintiff's future economic loss. As regards future medical and pharmaceutical expenses, the evidence was clear that the plaintiff would incur these expenses but the evidence did not indicate what their amounts would be. There is a figure of $5260.96 in respect of past medical expenses, but because of treatment which this amount covered and which will not recur, it is not a guide for the future. In the circumstances I think a fairly nominal sum of $3,000 should be awarded in respect of this head of damages. In the result the amount of damages to be awarded to the plaintiff upon a re-assessment should be $271,568.30. I accordingly would propose that the appeal and cross-appeal be allowed. The judgment below should be set aside and in lieu thereof there should be judgment for the plaintiff in the sum of $271,568.30, to date from 18 December 1986. Although the defendants succeeded in part at least of their appeal, this did not have to be argued and was a small matter compared with what was involved in WRJLTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS; PEBMONA PTY LTD ¥ ANGELIDIS (Mahoney JA) (Mahoney JA) the cross-appeal. I would propose that the defendants pay nine-tenths of the plaintiff's costs of the cross-appeal and that no order should be made as to the costs of the appeal. Samuels JA I agree with Hope JA. Mahoney JA I agree with the views expressed by Hope JA as to the judgment of the trial judge and as to orders which, as a reassessment, this Court should make. I was originally of the view that the proceedings should be returned to the District Court for retrial and reassessment of the damages. The appeal to this Court is by way of rehearing. Such a rehearing is to be had in accordance with the principles decided in, or indicated in, Shehata v Montague L. Meyer Pty. Ltd. 51 ALJR 77 Upon such a rehearing, it is necessary for this Court to make its own assessment of, inter alia, the credibility of the plaintiff and his witness and the weight to be given to the evidence as to the plaintiff's capacity for work. Where such matters are in contest and the Court does not feel able to determine them or the issues on which they bear without seeing the witnesses, the Court will ordinarily direct a retrial However, in this case, the trial judge found the relevant issues in favour of the plaintiff and, for reasons which have been dealt with during this appeal, the correctness of his findings on such matters is not an issue before this Court. That being so, the Court is able to undertake the reassessment of the plaintiff's damages. I therefore agree with the orders proposed by Hope JA. The appeal and cross-appeal are allowed. The judgment below is set aside and in lieu thereof there is judgment for the plaintiff in the sum of $271,568.30, to date from 18 December 1986. Although the defendants succeeded in part at least of their appeal, this did not have to be argued and was a small matter compared with what was involved in the cross-appeal. The defendants are to pay nine-tenths of the plaintiff's costs of the cross-appeal and no order is made as to the costs of the appeal.