FENN v JEWEL FOOD STORES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS (1) AP, MEAGHER (2) JA AND HOPE (3) AJA 28 August 1989, 28 August 1989 [1989] NSWCA 77 DAMAGES — quantum — observations concerning the relevance of evidence of the state of the labour market for partially incapacitated workers. Yammine v Kalwy [1979] 2 NSWLR 151, Baird v Roberts [1977] 2 NSWLR 389 at 397, and Dessert v The Commonwealth 13 ALR 437 at 447 referred to. Samuels JA This is an appeal from an assessment of damages made by Cole J in proceedings in which, although liability was not formally admitted, it was not in contest at the trial. The plaintiff, as I will call her, the present appellant, was born on 16 May 1962 and was therefore about eighteen when, on 22 August 1980, she sustained the accident which gave rise to the action. She was then working in a supermarket when a pallet of groceries fell on her left foot. She sustained a crush injury without any fracture and for some time it was considered that the pain and discomfort of which she complained was caused by a soft tissue injury, the consequence of that trauma. The learned judge, in a very careful and detailed judgment, assessed the plaintiff's damages in the total sum, gross of workers' compensation repayments, of $83,492.78, rounded off to $84,000. Of this total he awarded $19,000 for future economic loss, $35,000 for past economic loss and $20,000 for damages for pain and suffering and the like of which he allocated $5,000 to the future. Despite the care with which his Honour approached the assessment, I am afraid that in my opinion the award cannot stand, and since I think that in the circumstances the remedy must be that of a new trial, I will confine myself only to those facts which are necessary as a context for the conclusions I will express. From August 1980 or thereabouts, when the accident occurred, until December 1982, the plaintiff complained of persistent pain in her left foot. She had left school in Year 10 without the School Certificate and was not qualified for any but simple tasks such as working as a cashier or packer in a supermarket and some clerical jobs of little complexity. During the period to which I have referred she did work intermittently and was seen by a large number of doctors. They were unable to identify any clinical basis, any physiological basis, for her complaints and naturally enough tended to attribute them to a psychosomatic condition rather than to some organic cause. For example, Dr Michael Stuckey, who was her treating doctor, an orthopaedic specialist, said in respect of an examination on 7 May 1981, "I feel she has become embroiled in the medico-legal processes involving compensable injury and that she will complain of symptoms until this matter is settled." However, in December 1982 and following a second opinion by another orthopaedic specialist, Dr Michael Stuckey investigated her foot and discovered a neuroma in an unusual position, it is true, between the heads of the second and 2 UNREPORTED JUDGMENTS third metatarsals. This was clinical evidence of what I might call an acceptable source of pain. Of course, the extent of the pain remains subjective and the mere fact that a condition of that kind was discovered on operation cannot of itself justify all complaints that the patient might make. She continued to complain after this operation, and on 15 August 1984 a second operation was carried out by Dr Stuckey and a further neuroma was found, or an exacerbation of the first, and excised. Dr Stuckey's view in reports he gave and in his oral evidence, was that she was suffering from recurrent neuromata, had at the date of the trial in May 1988 an existing neuroma and was then unfit for work requiring much standing or walking, and would probably be free of pain or incapacitating pain in five to ten years. He did not recommend a third operation because he thought it would probably have the same outcome as the second. This was an opinion in which Dr Phillip Marnie, the other orthopaedic specialist to whom I have ref erred, concurred, and they preferred to leave the matter to what they expected and hoped would be some natural healing process. His Honour evidently did not accept as vigorous the plaintiff's efforts to obtain employment, and took the view that she was not well motivated in this respect. He considered that between the accident and 1984, when the second operation was carried out, the plaintiff had in fact been unable to work for a period of about thirteen months. This he increased to two years, which he thought was on the generous side, and accordingly he awarded her the sum to which I have referred on the footing of unfitness for employment from time to time up to September 1984, and fitness thereafter. From September 1984 until August 1986, when she delivered a child, he awarded her damages for diminished earning capacity in the sum of $60 per week which is about a twenty per cent deficit based upon the earnings of a cashier/packer in the 1984/85 year. I should add that for the remaining two years of the period from 1980 to 1984 his Honour compensated the plaintiff too at the same rate on the same basis of diminished earning capacity. The difficulty which I see with this assessment is that the learned judge does not appear to have taken account of the possible consequences of the neuroma discovered at operation in 1982 and 1984. I would have expected his Honour to have looked at the plaintiff's situation during the four year period from 1980 to 1984 in the light of findings, which were not disputed, that she had, during the period, an actual, clinically established organic source of pain. This is not only relevant upon the question of capacity for work but is also of great relevance upon findings as to credit, desire for employment, stoicism and so forth, all of which are inextricably involved in assessments of work capacity and credit. His Honour deprived himself of materials for these judgments, if I may respectfully say so, by not applying to the fact finding process the material results of these two operations. Furthermore, when one comes to consider the future, his Honour does not mention that at the date of trial the plaintiff was again suffering from a neuroma, although it is perfectly true that his Honour allowed her a period of eight years of diminished earning capacity. Over that period her complaints of pain would diminish, as the evidence had it, but I must say I am by no means convinced that a twenty per cent disability is an adequate starting point, but I do not make any express finding on that score. URJ FENN v JEWEL FOOD STORES PTY LTD (Samuels JA) 3 In my opinion therefore his Honour's failure, as I must term it, to take account of the operative findings constitutes an error which requires the intervention of this Court. Apart from that, however, in my view an award of $5,000 for future pain and suffering, on his Honour's own findings, is inadequate to a degree that demands review. This was pain which, on his Honour's own assessment, reduced the plaintiff's earning capacity by twenty per cent and would attract value in excess of the figure which his Honour has assigned. For those reasons in my opinion the award of damages must be set aside. The question then arises as to whether the Court should itself reassess the damages or whether the matter must go back for a new trial. A new trial is, we know, a remedy to be avoided if it is possible. Mr Wales for the plaintiff submits that there ought to be a new trial in this case. Mr Deakin seeks to persuade us that a reassessment would be appropriate. There are credit issues undoubtedly; I have made some reference to them. Whatever the material which ought to be taken into account, this is a case in which the plaintiff's own response and the extent to which her symptoms are genuine must be most material; and these issues were in dispute. I do not think, therefore, that this Court is in a position to reassess. The matter must therefore be returned for a new trial. Before parting with the case I should add this. His Honour during the course of his judgment expressed this proposition: "In my view, save in the most exceptional cases, where a Court has found that a plaintiff with a diminished capacity to earn flowing from injuries is nonetheless capable of engaging in a significant area of employment, it must assume that the plaintiff will be able to obtain such employment. This assumption will be made only after the court has fully determined the extent of the plaintiffs reduced capacity so as to enable it to make the assessment that the plaintiff can engage in employment in some reduced area, or is otherwise inhibited in obtaining employment in the pre-accident area of employment." Iam not entirely sure what his Honour meant and it appears that it is likely that he did not exclude from consideration the state of the employment market. If, however, he meant that a Court must assume that a plaintiff with a physical disability caused by the defendant's tort will be able to obtain, and presumably to retain, employment within his or her reduced earning capacity, it is not, with respect, a correct statement of principle. It is always open to a party to lead evidence about the prospects of a plaintiff's obtaining such employment and thus about the state of the employment market in particular areas and for particular categories of work. Thus a plaintiff may lead evidence that there is no work in the district in which he or she lives which they are able to do in their post-accident condition. In such a case a contest may develop as to whether the plaintiff, acting reasonably, must move where suitable work is available, if indeed it is, somewhere else - a fact, usually, for the defendant to establish. However, as I have said, I doubt that the proposition which his Honour stated in fact influenced the judgment and in the circumstances it is unnecessary to deal with the matter further. It is true, of course, that the plaintiff may be incapacitated by a physical disability, the consequence of an accident, in two ways: firstly, because the disability may reduce the range of work which the plaintiff can undertake and secondly, because it may make the plaintiff a less attractive prospect to an employer. 4 UNREPORTED JUDGMENTS I might mention that in addition to the case of Yammine v Kalwy [1979] 2 NSWLR 151, to which his Honour referred, Baird v Roberts [1977] 2 NSWLR 389 at 397, and Dessert v The Commonwealth 13 ALR 437 at 447, are in point. I would therefore propose that the appeal should be allowed with costs and that a new trial be ordered limited to damages. The judgment below must, of course, be set aside save for the order for costs. Meagher JA I agree. I will only add one thing. Samuels JA, dealing with the question of future general damages, which his Honour gave at $5,000, expressed a view with which I agree, that even on the basis of his Honour's actual findings of fact his assessment is manifestly inadequate. It is all the more inadequate in the light of the finding of fact which his Honour should have made but did not, that a third neuroma has developed. Hope AJA I agree. Appeal allowed with costs and new trial ordered limited to damages. Judgment below is set aside save for order for costs. Counsel for the Appellant: Mr I Wales Solicitors for the Appellant: Peter R Murphy and Co Counsel for the Respondent: Mr P Deakin Solicitors for the Respondent: Hunt and Hunt