HASSIB v HAINES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 20 July 1989, 20 July 1989 [1989] NSWCA 97 CONTRIBUTORY NEGLIGENCE — DAMAGES — INADEQUACY — IMPAIRMENT OF EARNING CAPACITY — NO QUESTION OF PRINCIPLE INVOLVED Clarke JA This is an appeal from an award of damages by Young J in favour of the appellant, in the sum of $73,500. The appellant challenges both his Honour's conclusion that the appellant had been guilty of contributory negligence and the assessment of damages. It is convenient to consider initially the argument of contributory negligence. The appellant, who was at the time aged forty-one and had migrated to Australia from Afghanistan, was employed in March 1981 at the North Sydney Technical College as a general assistant, which I understand to mean an assistant gardener. One of his tasks was to operate a ride-on motor lawnmower in the college grounds. He was performing this operation on 30 March 1981 when he sustained serious injury. What occurred seems to be that he needed to stop the mower during the course of the mowing in order to move some chairs or other lawn furniture. He duly stopped the mower, descended from it and cleared away the furniture. He then returned to the mower and started the motor. The mower was apparently in gear and started to move. At this time the appellant was behind the machine and he saw it moving in the direction of a parked car. In his endeavours to either stop the machine or change its direction his foot slipped and came into contact with the rotating blades of the mower, with the consequence that he suffered a significant injury to his right foot. The thrust of the case which he made, and which was accepted, was that the respondent had been negligent in requiring him to work a mower which was not properly or adequately guarded. Because there is no appeal from the finding of negligence it is unnecessary to descend into greater detail on the facts relating to the exact movement of the machine. However, his Honour held that the appellant was himself guilty of contributory negligence and apportioned liability between the parties in the ratio of 90:10. In other words he found the appellant responsible to the extent of ten percent. It is the finding that the appellant was guilty of contributory negligence which is challenged. There appears to have been some confusion as to whether his Honour found the appellant partially responsible because he left the mower in gear when he stopped the motor and descended from it; or whether it was his failure to check and ensure that the motor was in neutral before he endeavoured to restart the motor. Upon the basis that his Honour made a finding based on the fact that the appellant left the motor mower in gear a number of submissions were advanced to the court, the general thrust of which was to suggest that there was no rational 2 UNREPORTED JUDGMENTS basis upon which this finding could have been made. In my opinion it is not really necessary to examine those submissions although if I had been obliged to undertake that examination I would have been disposed to conclude that the appellant had failed to make good his claims. However, it seems to me that the respondent is correct when he says that the basis of his Honour's finding of contributory negligence is to be found in a section of the judgment which reads: "that the plaintiff not checking to make sure that it was not in gear when it was started is a matter which constitutes a failure to look after his own safety." The essence of that conclusion is that the appellant had failed to take proper procedures on the restarting of the motor mower. That finding was, it seems to me, clearly open on the evidence for, as the appellant himself admitted in cross-examination, the mower would not have moved unless it had been in gear and if the appellant had checked to ensure that it was in neutral prior to starting it the problems would not have arisen. Upon that basis the appellant's counsel submits that there are still two reasons why his Honour was in error in concluding that the appellant had been guilty of contributory negligence. The first was that the failure to check that the motor mower was in neutral was no more than mere inadvertence and could not be properly described as constituting negligence. His Honour considered and rejected that submission and in my opinion not only was it open to him to do so but he was correct in adopting that course. It cannot be said that it was an insignificant failure on the part of the appellant nor that it might not have serious consequences. In these circumstances I would conclude that the failure to comply with a basic safety requirement is properly to be regarded as constituting negligence. It was then submitted that even if that was so the sole cause of the appellant's injury was the serious omission of the respondent to have the blades of the mower properly guarded. If that is correct then there is no room for a finding of a causal nexus between the appellant's breach of duty and his later injury. The question of causation is always a difficult one but it should not, as the authorities make clear, be approached according to scientific or philosophical theories of causation. It requires the application of common sense principles. One statement of the test is to be found in the judgments of Hope and Priestley JJA in Barnes v Hay (1988) 12 NSWLR 337 at 339, to this effect: "The law requires the court to decide whether the connection and the negligent act or omission of the defendant to the plaintiff's loss was such that the defendant should be made liable for it." That statement appears in the context of a claim that the defendant was negligent but no reason appears why the same approach should not be adopted in considering whether the negligence of the plaintiff should be regarded as causally linked to his own injury. Upon the adoption of either the common sense approach or the test advocated by Hope and Priestley JJA in Barnes it seems to me that the proper conclusion in this case is that there was such a connection between the omission of the appellant and his injury as to lead to a conclusion that the appropriate causal nexus has been established. It should not be overlooked that one is not searching for one cause. One is searching for a relevant and materially contributing cause to the appellant's injuries. In this case, although I would accept as his Honour did, that the respondent's negligence was by far the greater cause of the injury, the appellant's URJ HASSIB v HAINES (Clarke JA) 3 own failure to ensure that the motor mower was in neutral before he started it, itself constituted a negligent omission which constituted a relevant cause. I would reject therefore the appeal from the finding of contributory negligence. The learned trial judge's assessment of damages was challenged on two separate bases: in the first place it was said that the allowance of $55,000 for general damages was plainly inadequate for the serious injuries which the appellant had suffered. Furthermore, counsel for the appellant submitted the inadequacy was demonstrated by his Honour's failure to deal with a significant area of disability which emerged most clearly from the evidence of Dr Greenberg which was accepted by the respondent at the trial and has been accepted again by his counsel on the appeal. Before turning to that evidence, it is necessary shortly to describe the injury suffered by the appellant. His right foot was struck by the rotating blades which cut deeply into the foot between the toes and the ankle. The seriousness of the lacerations was such that the forefoot and toes had to be amputated; what was lost were all the toes on the right foot and about four and a half inches of the foot. This was, as the photograph makes plain, a very serious injury. The appellant spent a good deal of time in hospital and did not return to any form of work until May 1982. He was unable to return to the physical labour in which he had been engaged before his accident but gained employment with his old employer doing the job of a base grade clerical assistant. In this employment his wages are, if anything, slightly more than his wages as a gardening assistant. The appellant has suffered from discomfort and pain and the sensation caused by what is described as "phantom toes" from the time of the accident to the present and will continue to suffer from some of these discomforts and pains in the future. He does not speak English very well and is, therefore, significantly disadvantaged in performing clerical work. Indeed the description of the work which he is presently doing gave me the impression that it would be of a type which was highly boring to anyone and this is, as I understand it, the appellant's feeling about it himself. Thus he has had a serious physical injury which has taken from him the opportunity to do the work which he liked doing before the accident, and which has also had a number of other effects which have been gathered most conveniently in a report of Dr Greenberg dated 26 November 1986. In addition to his physical injury he has, since the accident, felt very depressed and is always aware of his injury. He finds concentration and memory of recent events impaired. He suffered a great deal of insomnia in the early stages, although he is sleeping somewhat better now. It would appear that his feelings of awkwardness impinge greatly on his ability to move freely socially and the indications are that his difficulty with his concentration and memory have significantly set back his attempts to improve his understanding of the English language. He was trained in Afghanistan as a lawyer and was, before coming to Australia, doing clerical work which I would infer was of a more demanding nature than his present menial tasks. The difficulty of course with his performing clerical work in Australia was his inability to understand the English language, and although he may have been able to learn English reasonably quickly if he had not had the accident, it is his complaint that his poor concentration and memory have made it difficult now to do so. 4 UNREPORTED JUDGMENTS Dr Greenberg came to the view, having considered the appellant's condition, that he was suffering from a chronic reactive depressive state which is likely to continue in some degree indefinitely. His Honour did not mention that condition at all in dealing with the question of general damages and in my opinion the size of the allowance demonstrates that either his Honour failed to consider it or to accord that factor proper weight. In many respects the allowance for general damages in respect of a person who has suffered an injury of this nature is very much a matter of impression in the light of the presentation of the injury and the evidence concerning his suffering, to the extent that evidence is accepted. His Honour made it plain that he was very impressed with the appellant and thought that, unlike some other litigants, he had worked hard to get on with his life after a shattering injury. The evidence certainly justified that view but I am left with the conviction that in the end his Honour failed to have proper regard to the severity of the combination of physical and mental injuries. In my opinion the amount awarded by his Honour was so low that this Court should interfere. The assessment of a proper amount is a matter of no little difficulty, but bearing in mind those factors to which I have drawn attention, I would be disposed to regard an award of $70,000 as appropriate for general damages. The appellant also challenged an award for impairment of future earning capacity in the sum of $2,500. It is clear from a reading of his Honour's judgment that his Honour allowed that figure essentially for the loss by the appellant of the slim chance of becoming head gardener or achieving a better position as a gardener in the employment of the respondent. So much was, I think, recognised by counsel for the respondent. The allowance of that amount may be adequate for the loss of that chance but it fails to have any regard to what is a much more significant factor in this case: that is, that a completely able man engaged in physical labour, which he enjoyed, has been deprived of the opportunity of searching for more remunerative physical labour and in that way obtaining greater economic benefit from his abilities. It goes without saying that although he was not technically qualified either as a gardener or in any trade or other relevant calling, there was a wide range of tasks which would have returned a remuneration to him greater than his remuneration in his employment with the respondent. On the one hand he may have been happy to stay with the respondent for the rest of his working life. On the other hand he may have wished to perform other labouring works which returned him greater moneys and which enabled him to work closer to his home. The injury has denied him those opportunities. It is true that he is now in employment which should be regarded, in the way the case was fought at the trial, as secure and which returns him a wage slightly better than his wage at the time of his injury. But the fact that he is presently earning as much as he would have been if he had remained indefinitely in his old employment does not mean that he did not suffer any impairment of earning capacity at all. He has undoubtedly suffered a physical incapacity and that suffering gave rise to a need for the court to evaluate the extent to which that physical incapacity would or might reflect in economic disadvantage in the future and to award appropriate compensation. The recognition that his Honour allowed $2,500 for the chance which I have identified carries with it a demonstration that his Honour failed to allow anything at all for the general impairment of the appellant's earning capacity. Certainly his URJ HASSIB v HAINES (Meagher JA) 5 Honour does not mention it and if he had paid any regard to it, it is unthinkable that he could have awarded only $2,500 for the loss. In some circumstances a loss of this nature to a man who was about forty-seven at the time of trial, could reflect in a very significant award of damages indeed. What operates in this case to render that approach not completely valid is his continued employment with the respondent. Nonetheless he was entitled to proper compensation in respect of his impairment and that entitlement which has not been recognised, calls in my mind for a reasonably significant amount of damages. It is always a difficult task to determine the precise figure in a case of this nature when there are immeasurable uncertainties involved. However, one must take a broad approach in the light of the evidence and, doing that, I have concluded that the appropriate award for the impairment of earning capacity is $25,000. If it is not clear, that sum includes the amount of $2,500 which his Honour awarded, so that the damages would be greater by the sum of $22,500 than it otherwise would have been. The other elements of his Honour's award of damages, excluding interest, were agreed and there is no need to alter those. Accordingly, in my mind the award of damages should include: Past economic loss $25,463.75 Surgical footwear 8,150.00 General damages 70,000.00 Impairment of earning capacity and appropriate 25,000.00 interest There is a need, of course, to apportion the general damages for the purpose of the calculation of interest and in this respect I am of the opinion that broadly the damages should be halved so that $35,000 relates to the past and $25,000 relates to the future. These calculations will require adjustment to the interest component which was allowed by his Honour and also some further calculations to take account of workers' compensation payments, and I am of the opinion that short minutes should be brought in, either orally or in writing, setting out the consequences of my conclusions. Priestley JA I agree with what Clarke JA has said and with the orders he proposes. Meagher JA I also agree. (It is noted that the parties have agreed on the substituted verdict in the amount of $114,243.84 which includes the elements that Clarke JA set out; it takes ten per cent off the total, deducts the net workers' compensation amount and it is that figure that has been entered as the substituted judgment assessed as at today.) Counsel having agreed that the result of the arithmetic consequent upon the reasons of Clarke JA is that judgment entered as at today's date should be $114,243, and it being noted on the record that Mr Gee has explained how that figure was arrived at, the court makes the following orders: The appeal is upheld. The judgment is set aside. In lieu thereof and to date from today's date, judgment should be entered for $114,243, with costs. The respondent is to pay the appellant's costs of the appeal. Counsel for the Appellant: C Gee QC and PR Hennessy 6 UNREPORTED JUDGMENTS Solicitors for the Appellant: Kenny Spring, Bathurst Counsel for the Respondent: CC Branson Solicitors for the Respondent: EG Scarparo