BRAY v WHITBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and HANDLEY JJA 16 APRIL 1993, 6 May 1993 [1993] NSWCA 36 INJURY TO WORKER WHEN LOGGING — DUTY OF CARE OF EMPLOYER TO WORKER — WEIGHT TO BE GIVEN TO STATEMENT OF PLAINTIFF MADE TO INSURANCE ASSESSOR AFTER ACCIDENT — DUTY OF JUDGE TO GIVE WEIGHT TO ALL THE EVIDENCE — DAMAGES — ASSESSMENT OF ECONOMIC LOSS — PREDICTION OF PLAINTIFF'S FUTURE WORKING LIFE APPEAL from Common Law Divison — Worker injured in logging — Judgment for $480,000. LIABILITY — Duty of care of employer to worker — Plaintiff injured when logs rolled on him — Duty of employer working with plaintiff to ensure care taken while plaintiff was in vicinity — No error by trial judge. Statement made by plaintiff to insurance assessor after accident — Weight to be given to statement — Duty of judge to take account of all of the evidence — No error by trial judge. DAMAGES — Assessment of economic loss — Prediction of plaintiff's future working life — Use of comparable earnings — No error. General damages $90,000 — High but not appealably excessive. INTEREST — Adjustment as to past general damages. Mahoney JA On 5 September 1980 the plaintiff Owen Paul Whitby was injured while working for the defendants as a timber worker. In 1983 he commenced proceedings against the defendants to recover damages. He contended that their negligence had caused his injuries. On 27 February 1991 Grove J held that the defendants had been negligent and awarded damages to him. Judgment was entered for $480,00-0. The defendants have appealed to this Court against his Honour's judgment. Their contention is that the plaintiff did not establish negligence and that, if he did, the damages were, in relevant respects, excessive. The facts as found by the trial judge were as follows: "At the date of accident the plaintiff was but 16 years of age and had recently left school. He had been raised in the Bega area where his father had two small properties. He had left school with the intention of finding physical labour and continuing to earn his living doing "bush work'. His employment by the defendant was the first significant work of that nature that he had obtained. The parcel of land was about 400 acres and the defendant Mr Charles Bray was operating a loader bringing felled trees to a dump area where the plaintiff was employed to remove excess foliage and bark from the logs. The logs were transported by being chained by the loader and the operation was known in the parlance of the timber trade as 'snigging'. As the trial proceeded it seemed to develop as common ground that there was a foreseeable risk that the logs being snigged had potential to strike standing timber with the creation of attendant risk that that timber might fall down and 2 UNREPORTED JUDGMENTS strike anybody within range. This must have been particularly so with standing deadwood, and in the event, that is what happened. Noting some dispute about minor detail of alleged arrangement concerning contact, the plaintiff testified that he came to seek the defendant because he had no work to carry on with and he wished to check that the defendant was safe and proceeding to bring further material. He made what I take to have been some form of eye contact supplemented by a wave whereupon he noticed the loader continue to move forward dragging a snig of logs when one of them struck a dead tree. The plaintiff saw it starting to fall in his general direction. He then said that he ran towards the machine to seek protection from the tree by going to ground using the height of the blade on the loader as a possible buffer. He was face down on the ground and the tree caught him. He gave evidence that the tree turned and I am satisfied that he was not seeking to convey that he saw such a phenomenon but rather that, having seen the tree heading towards him and moving in a direction of safety he was able to conclude by the circumstances that the tree caught him that it must have in fact turned in some way. He sustained very serious injuries. It is plain that common sense would have predicated that if there was a requirement for two men to work in the bush together the purpose of it was to enable routine and frequent checking on each other's safety. I am prepared to find that such an arrangement did come into effect and that it was pursuant to that arrangement that the plaintiff left the dump area and went to check on Mr Bray. No doubt the fact that he had finished his allocated tasks inspired him to choose that moment for one of these checks but the defendant ought to have anticipated that he would come from time to time. The defendant had the control of the moving vehicle and created the potential risk of striking other trees. The opinion of Dr Adams upon the hypothesis of facts contained in Exhibit B is reasonable and acceptable." His Honour's conclusion was stated as follows: "Once it is recognised that a system for mutual checks on safety needed to be undertaken and that the person whose particular safety required focus was the operator of the moving machine it became part of the plaintiffs duty to enter the area of potential hazard. He was entitled to expect that the defendant would carefully participate in the check and recognition system and keep risks to a minimum whilst the plaintiff was within the hazard area. In this case the defendant failed to notice the plaintiff and although it was not suggested that reasonable care postulated that the defendant should be able to so control the snig of logs that it did not strike a dead tree or other threat to safety I am satisfied that the defendant was simply content to approach the matter on the basis that the plaintiff ought look out for himself. I am satisfied that the length of time which had elapsed was such as to make it appropriate for the defendant to consider that the plaintiff might be on his way having regard to the evidence, which I accept, that the plaintiff had completed any task that was necessary in respect of former load or loads. If the defendant had noticed the presence of the plaintiff he had the means of reducing risks by waiting until the plaintiff was well clear before proceeding in his progress. The issue of contributory negligence is not pleaded but having regard to the submission which I earlier adumbrated I record that I am not persuaded that anything in the circumstances bespeaks such on the part of the plaintiff." 1. LIABILITY: URJ BRAY v WHITBY (Mahoney JA) 3 The submissions of Mr Hall QC for the defendants as to liability were two: that on the facts as found by the learned judge, there was no negligence; and that his Honour had failed appropriately to take into account and weigh a statement which the plaintiff had made on 2 October 1980. lam satisfied that his Honour was correct in holding that the plaintiff's injuries resulted from the negligence of the defendants. The defendants were, or were in a position analogous to, employers of the plaintiff. The duty of an employer to provide a safe system of work and to take proper care to eliminate or guard against the dangers to which the work may expose an employee have recently been emphasised in decisions of the High Court: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 6ll. The plaintiff was, at the time, aged sixteen. There were obvious dangers in the work in which he was engaged and the system which was to be followed. Two things were, if not common ground, at least clear on the evidence. The plaintiff and Mr Bray were working together in the getting of timber. This involved that they should, as it was put, look after each other. It involved that, if the plaintiff did not see Mr Bray for a period of some ten minutes or more, or if the plaintiff had done the work which Mr Bray had brought to the dump for him to do, the plaintiff was to go into the bush to where Mr Bray was to check that Mr Bray was not injured or otherwise in difficulty. And the work which Mr Bray was doing, the snigging of logs, involved dangers to those in the vicinity. As the judge said: "\.. it seemed to develop as common ground that there was a foreseeable risk that the logs being snigged had potential to strike standing timber with the creation of attendant risk that that timber might fall down and strike anybody within range." Accordingly, the plaintiff's work involved that he would enter an area of danger. What occurred was the danger which was anticipated. The submission for the defendants was, at the trial and in this Court, that dangers of this kind were an incident of the work against which provision could not properly be made. In addition, it was submitted that in the circumstances Mr Bray acted reasonably. The judge found that "it was not suggested that reasonable care postulated that the defendant should be able to so control the snig of the logs that it did not strike a dead tree or other threat to safety". If Mr Bray had seen the plaintiff in the vicinity, as the plaintiff claimed he did, then, I think, negligence would have been established. Mr Bray should have stopped his operations until he was satisfied that the plaintiff was out of danger. But his Honour held that Mr Bray did not see the plaintiff. His Honour based his finding of negligence in this regard upon his conclusion that, as he said, the plaintiff "was entitled to expect the defendant would carefully participate in the check and recognition system and keep risks to a minimum whilst the plaintiff was within the hazard area." His Honour's conclusion was to the effect that Mr Bray was "simply content to approach the matter on the basis that the plaintiff ought look out for himself" and, as I infer, that he failed to see the plaintiff because he did not keep a proper lookout for him. It is upon this aspect of the matter that I confess to some difficulty. The evidence as to the likelihood of Mr Bray seeing the plaintiff in the bush, some hundred feet or thereabouts away from him, was not explored in detail. However, in the end, I am satisfied that Mr Bray did not take the care that he should. As I have said, the plaintiff was required by his work to enter into an area of significant danger: the danger was, as occurred, that a tree might fall on him and 4 UNREPORTED JUDGMENTS seriously injure him. There was, in principle, a duty upon the employers to take appropriate steps to eliminate injury from this risk. In my opinion, it was not sufficient for an employer to place upon the employee the practical task of attracting the employer's attention. The obligation of the employers was the adoption of procedures to ensure that, when the employee came into the area of risk, the likelihood of trees falling and injuring him was eliminated or appropriately minimised. It was, I think, to this that the learned judge referred when he said, I am satisfied that the defendant was simply content to approach the matter on the basis that the plaintiff ought look out for himself". Accordingly, I am satisfied that the facts as found by the learned judge disclosed negligence. Mr Hall's alternative submission brought in question his Honour's findings of fact. The essence of the plaintiffs case was that he had left the dump where he was working and gone into the bush to find Mr Bray. It was there that he was injured. But the plaintiff had, on 2 October 1980, shortly after the accident, signed a statement prepared by an insurance assessor in which he gave a different version of the facts. The statement said: "There were three of us working in this area, myself, Charles Bray and Ray Radford. Ray was felling the trees and Charles was operating the caterpillar loading and snigging the logs to where I was in the bush dump for barking. It was about 1.00 pm and I had barked a number of logs that day. I heard Charles in the loader coming back to the dump with another log. I looked up to see where he was intending to position the log and when I considered I was far enough away from the machine I went back to barking. As I continued to work I suddenly saw a tree out of the corner of my eye begin to sway. It was immediately apparent the tree was going to fall in my direction. I dropped the debarking bar and tried to get away but I was unable to do so. The tree struck my back... and I was forced to the ground. While I didn't actually see the machine Charles was driving strike the tree it was apparent from the way the tree fell that this is what happened." Mr Hall's submission was to the effect that the accident did not occur when the plaintiff had left the dump and gone into the bush to find Mr Bray; it had happened while he was working in the dump. Accordingly, the basis of negligence to which I have referred was not established. The statement was put to the plaintiff in evidence. The plaintiff denied that he had started barking or gone back to work: he reiterated his evidence in chief that the accident occurred while he was on his way to find where Mr Bray was. The judge, in his judgment, considered the effect which should be given to the statement. His Honour said: "The plaintiffs recollection of the arrangement for checking seems at first glance a little more elaborate than it may have been in the past. He acknowledged his signature on a statement which is obviously the paraphrase of what the plaintiff discussed with a loss assessor. Although the plaintiff, who impressed me as a young man of candour upon whose testimony I am prepared to depend, conceded that his recollection may have been fresher for events in October 1980 than in February 1991, I am not persuaded that the statement reveals that attention was directed to the matters of detail which have now assumed some importance in the context of the proof of negligence. I accept the evidence of the plaintiff." Mr Hall QC submitted that his Honour, in dealing with the statement in this way, did not give proper consideration to it or give to it the weight that URJ BRAY v WHITBY (Mahoney JA) 5 should have been given to it. He referred to the observations of Isaacs ACJ in Federal Commissioner of Taxation v Clarke (1927) 40 CLR 246 at 262 et seq. It is, of course, the duty of a judge in fact finding to take into account all of the evidence before him. But the process or order in which he takes evidence into account is, in my opinion, not to be stereotyped: see Fabre v Arenales and Ors (1991-1992) 27 NSWLR 437. In some cases, it may be proper for a judge to dismiss some evidence from consideration: it may, for example, be inherently incredible or the witness speaking to it may have no credit. On other occasions, the proper course may be to weigh all of the evidence in order to arrive at the conclusions of fact necessary to determine the issues. Where, as in the present case, the trial judge has had the advantage of seeing a witness whose evidence is in question, he is, in the relevant sense, in a position of advantage vis-a-vis an appeal court, even on a rehearing: Abalos v Australian Postal Commission (1990) 171 CLR 167. However, an appellate court may come to a different conclusion of fact notwithstanding the trial judge's advantage: see generally Voulis v Kazarv (1976) 50 ALJR 59. In this case, Mr Hall's submissions suggest that, notwithstanding the trial judge's acceptance of the plaintiff as a credible witness, the statement signed by him can and should lead this Court to a different conclusion. I do not doubt that a statement of the present kind may, in some circumstances, warrant a court on appeal coming to a different conclusion of fact notwithstanding the trial judge's position of advantage. But, of course, it is not compelled to do so. And, in this case, I do not think that it should. As Mr Wheelahan QC for the plaintiff pointed out, there were other facts which supported the oral evidence given at the trial and were inconsistent with what was said in the statement. In the accident report prepared by Mrs Bray and adopted as correct by Mr Bray at the trial, the accident was described as having happened "in the bush towards clear area of dump". The version of the facts given by the plaintiff in the Workers' Compensation Court in 1985 as it was before the trial judge differed from that given in the statement and accorded generally with his oral evidence at the trial in this proceeding. And, in addition, the account of what occurred given by Mr Bray at the trial was to the effect that the accident had happened, not in the dump, but in the bush some distance away. Mr Bray's evidence was, in general, corroborative of what the plaintiff said at the trial. In these circumstances, I see no error in what the judge did. He was, in my opinion, entitled to prefer the version of the facts given by the plaintiff orally and confirmed by Mr Bray and, to an extent, by the accident report. Mr Hall QC submitted, I think, that the way in which the learned judge had dealt with the statement indicated that it had not given appropriate consideration to it. His Honour did not spell out in detail the basis of the reasoning which led him to prefer the plaintiff' B oral evidence to the written statement. But the thrust of it is, I think, generally as I have indicated. I do not see in what the judge did any ground for holding that the consideration of the facts miscarried. 2. DAMAGES: In setting out the damages awarded to the plaintiff the judge said: "For convenience of reference I table those ingredients of damage once more: Out of pocket expenses $18,680.73 Fox v Wood 14,744.60 Disputed physiotherapy 812.20 Economic loss to date 100,000.00 Interest on difference between those damages and compensation payments actually received 35,437.50 Future economic loss 225,136.00 General damages 90,000.00 Interest on general damages accrued to date 35,437.50 The arithmetical total of those ingredients is 6 UNREPORTED JUDGMENTS $520,075. It is agreed pursuant to Exhibit E that the defence by way of payment of worker's compensation is made good to the extent of $40,252. The difference is therefore $479,823. I direct entry of judgment for the plaintiff for $480,000. I order the defendant to pay the plaintiff's costs of the action." The material before this Court indicates that judgment was entered for $480,000. Mr Hall QC submitted that the learned judge had erred in calculating past and future economic loss, general-damages, and the interest on past general damages. The submissions in respect of past and future economic loss may be dealt with together. The thrust of the submissions was that his Honour had used the earnings of a Mr Umback in calculating economic loss and that those earnings were not proper to be used for that purpose and/or that the way in which his Honour had used them involved error. It was necessary for his Honour to assess what, uninjured, the plaintiff would have earned, before and after the trial. This involved, inter alia, two things: the determination of what work he would have done and what he would have earned for it. The judge took into account the earnings of Mr Umback as a timber worker. He inferred that the plaintiff, uninjured, would probably have followed that occupation. The determination of what the plaintiff would have done was, of course, difficult if not speculative. But the uncertaintieS affecting such matters have been held not to prevent the court coming to an assessment of earnings based upon conclusions of this kind: as to the extent to which inference may extend, see Government Insurance Office (NSW) v Cox (1976) 50 ALJR 559. In the present case, there was positive evidence from which the judge could infer that the plaintiff would probably have followed work in the timber industry sufficiently analogous to that of Mr Umback. As Mr Wheelahan QC pointed out, the plaintiff had been asked about such matters and had indicated a preference for the higher earning work which he saw as available in the timber industry. The fact that he was at the time of the accident only sixteen years of age would not, I think, prevent the judge approaching the matter generally on the basis that the capacity which the plaintiff lost would probably be employed in such a way. It was then submitted that Mr Umback's earnings did not provide a basis for inferring what the plaintiff would have earned. There were differences in their age and, it was suggested, in the earnings they would derive. I do not think that the judge erred in using Mr Umback's earnings as a general basis for assessment of the plaintiff's loss. His Honour recognised the relevant differences and discounted Mr Umback's earnings to the date of trial substantially. His Honour took into account the difference between what the plaintiff, after his injury, was in fact earning and what Mr Umback was earning and then significantly discounted the difference between them to make allowance for the differences which would have existed had the plaintiff not been injured. The determination of these matters is essentially one of assessment and I am not satisfied that the judge erred in what he did. I would come to a similar conclusion. Accordingly, I am not satisfied that the judge erred in his assessment of past and future economic loss. The plaintiff was awarded $90,000 for general damages. Views differ as to the order of compensation for physical injuries of various kinds. No doubt such differences will continue, not the least amongst judges. But an appellant is URJ BRAY v WHITBY (Mahoney JA) 7 entitled to have the judgment of this Court, subject to the qualification that this Court will not set aside an award of damages of this kind unless, in accordance with principle, it concludes that the award goes beyond a sound discretionary judgment of the plaintiff's loss: see Miller v Jennings (1954) 92 CLR 190; Moran v McMahon (1985) 3 NSWLR 700. My first impression was that the award was appealably excessive. However, on consideration of the detail of the plaintiff's condition, I am not satisfied that it is beyond what was open to be awarded. The plaintiff suffered injuries which were severe. He had physical injuries to his right leg and to his back as well as various abrasions and lacerations. The result of the injuries is such that he is confined to light work. He is able to walk and to carry out the postal duties, of a sorting nature, of his present occupation but he is limited in the extent to which he can run or lift. He is in addition subjected to pain and discomfort. Over ten years after the accident he still has pain in his back and the top of both legs. During his luncheon break he goes home and lies "flat on my back to carry on for the afternoon". His local doctor, in reports given on 15 March 1989 and 8 August 1990, referred to his continuing back problem. In 1990, the doctor said: "He will no doubt continue to require the use of analgesics, physiotherapy and devices such as the TENS machine to be able to cope with his back problems". The doctor reported that he attended physiotherapy approximately twice weekly and received heat treatment and massage and "the combination of all these treatments result in continued relief (at page 14) of pain and ability to cope in general". Without them he would "have to cease work altogether". In the circumstances, I am not satisfied that the award of general damages is appealably excessive. It is agreed that the learned judge applied a basis of calculation of interest on past general damages inconsistent with the present law: MBP (SA) PtY Ltd v Gogic (1990-1991) 171 CLR 657; MetroPolitan Meat Industry Board v Williams (1991) 24 NSWLR 54. The judge apportioned to the past general damages of $45,000. The submission for the appellants has been that the interest awarded should be not $35,437.50 as awarded by the judge but $45,000 at 2 per cent over 10.5 years, namely $9450. The judgment must be reduced accordingly. On this basis, subject to what I shall say, the judgment should be for $454,012.50. The papers placed before this Court suggest that alterations may have been made or should be made to the amount of the judgment formally entered for the plaintiff, viz, $480,000. The appeal papers suggest that the judgment should be for a lesser sum $446,385. It is not clear what is the correct order to be made. If, as prima facie is the position, the appeal is to be upheld to the extent that the judgment for $480,000 is to be reduced to $454,012.50, then the order to be made is that the appeal be upheld, that the judgment be set aside, and that there be substituted for the judgment given at the trial judgment for $454,012.50 and costs. The judgment should take effect from 27 February 1991. Leave should be reserved to the parties to move for a different judgment if, for reasons other than those advanced in argument and to which I have referred, judgment should be entered for a different sum by reason of the matters appearing in the appeal papers. The parties may within fourteen (14) days from the date of delivery of this judgment, substitute by consent order judgment for such other amount as may be agreed upon between them. In the event of contest as to the appropriate amount, either party may within that time move for judgment 8 UNREPORTED JUDGMENTS accordingly. In the absence of application within that time, the judgment to be entered is that to which I have referred. Priestley JA I agree with Mahoney JA. Handley JA I agree with Mahoney JA. Subject to what follows, the appeal is upheld, the judgment is set aside, and there is substituted for the judgment given at the trial judgment for $454,012.50 and costs. The judgment should take effect from 27 February 1991. Leave is reserved to the parties to move for a different judgment if, for reasons other than those advanced in argument and to which the Court has referred, judgment should be entered for a different sum by reason of the matters appearing in the appeal papers. The parties may within fourteen (14) days from the date of delivery of this judgment, substitute by consent order judgment for such other amount as may be agreed upon between them. In the event of contest as to the appropriate amount, either party may within that time move for judgment accordingly. In the absence of application within that time, the judgment to be entered is that to which the Court has referred. Counsel: Appellant: PM HALL QC / WPY AUSTRON Respondent: DA WHEELAHAN QC / SL WALMSLEY Solicitors: Appellant: HUNT and HUNT Respondents: CARROLL and O'DEA