COMMONWEALTH OF AUSTRALIA v HANSEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 3 March 1994, 4 March 1994 [1994] NSWCA 61 DAMAGES — multiple accidents; damages for injury arising from work related accident; trial judge's finding as to economic loss upheld Sheller JA The respondent, Kenneth Hansen, was involved in three accidents: a motor vehicle accident which occurred on 4 February 1981, a work related accident which occurred on 6 October 1984 and another motor vehicle accident which occurred on 12 March 1987. In respect of the work related accident he commenced proceedings against his employer, the appellant, the Commonwealth of Australia, in April 1985 claiming damages for injuries suffered. These proceedings together with proceedings he commenced against other defendants in respect of the motor vehicle accidents were heard together by Levine J. There was no order for consolidation. His Honour gave judgment on 29 September 1992. In the work accident proceedings his Honour gave the respondent a verdict in a tote' amount of $193,230.27 which included a component for general damages of $65,000 and a component for future economic loss of $66,390. The Commonwealth appeals against the award of general damages and against his Honour's assessment of future economic loss. The respondent was born in 1936 and was fifty-six at the date of the trial. At the time of the accident in 1984 he was employed at Garden Island Naval Dockyard. On 6 October 1984 he was working with others at HMAS Cook on an oceanographic winch holding a five foot long tension wrench. The socket at the end of the wrench was inserted into the winch and force applied. The drive pin sheared the wrench which catapulted forward and the respondent went forward with it. The supervisor then brought that particular job to an end. The respondent completed his shift and shortly thereafter at the normal time went home. He made no report of the injury. He said he had received a severe jolt to the shoulder and neck. Two days after the accident he went to see Dr Cameron. He told that doctor that his right shoulder was very sore and he was sent for an X-ray. Four or five days later he complained about his neck and said the pain in it had become very severe. He did not return to work till a year later on 1 October 1985. When he returned to work his neck region was still very painful and his right shoulder was giving a slight twinge every now and again. He was given light work until February 1987. During this period of sixteen months from October 1985 to February 1987 he said his neck was still very painful. The pain was there all the time. There was some pain in the shoulder and he was still suffering headaches during the day, sometimes two or three times a day each lasting about an hour or so. It was his view that by February 1987 there had not been improvement in his condition. From February 1987 he was asked to do and did do office work which he said he was able to do. On 12 March 1987 the second motor vehicle accident 2 UNREPORTED JUDGMENTS occurred when the respondent was a passenger in a bus involved in a collision. He was off work from 13 March 1987 till February 1988. In February 1988 he was assigned to the planning section. On 11 July 1989 he was appointed to a permanent position as an ASO2 at the commercial branch. In July 1990 he went off work by reason of anxiety and depression. On 4 November 1990 he received a letter terminating his employment. In March 1991 he commenced casual work as a security guard. He said that it had been his intention to work to the age of sixty-five in his career as a fitter and turner. At the time of the trial he said his neck was very sore at all times. He suffered headaches more severe than prior to the accident. He had pain to the right shoulder. He complained also of anxiety and depression. The grounds of appeal set out in the Commonwealth's notice of appeal as filed claimed that the award of general damages was wholly erroneous given the nature of the pre-existing constitutional condition of the plaintiffs cervical spine. In its written submissions filed in late February this year this ground was expanded to say that the award of general damages involved a misapprehension of the impact of other compensible injuries for which the respondent was reasonably compensated. Not surprisingly, this change in the grounds of appeal led the respondent, in order to protect his position if the appeal should succeed on this basis, to apply for an adjournment so he could seek leave to appeal against one or both of the other defendants, effectively, the GIO. This application obviously had merit. In the result the Commonwealth abandoned the enlarged ground of appeal and confined itself to the ground as set out in its notice of appeal. The challenge so put to general damages was quite a simple one. On 25 October 1984 a radiologist, Dr Travers, diagnosed a degenerative change in the respondent described as gross calcification of the soft tissue anteriorly to the bodies of C2-5. This was confirmed by Dr RA Murray Nobbs in a report of 20 February 1987. In a report of 6 March 1985 Dr Drummond said that the respondent had symptoms in the cervical spine suggesting aggravation of the pre-existing cervical spondylosis caused by the incident on 6 October 1984 while at work. In his reasons for judgment his Honour said that the 1984 accident was the cause of the respondent's present incapacity. He went on to say that it could not be ignored, however, that the overwhelming weight of the evidence was in his view that the natural progression of the disease in any event would have severely interfered with the plaintiffs capacity to work as a fitter and turner in his late fifties and this was a factor to be taken into account in allowance for future economic loss based on a diminution in earning capacity. This view expressed by his Honour was supported by a report prepared by Dr Ireland on 21 April 1992. The appellant submitted that the incident which caused the respondent's injury was a minor one and that the general damages award was manifestly excessive involving a misapprehension of the facts, particularly the respondent's advanced onset of cervical spondylosis. However, it is clear that his Honour was under no misapprehension. He expressly took it into account. His Honour said that he did not think the respondent's credit was in any way impugned, none of the medical experts doubted his honesty. I have referred to the various matters concerning the pain of which the respondent spoke in his neck within a few days after the accident and then on various occasions thereafter, up to and including the time of trial. His Honour referred to a report prepared on 20 URJ COMMONWEALTH OF AUSTRALIA v HANSEN (Sheller JA) 3 March 1985 by Dr Bornstein in which Dr Bornstein said that he considered the injury in 1984 to be a material aggravation to pre-existing problems in the respondent's neck. His Honour said that the effect on the respondent's neck was substantial, resulting in the long period off work and his ultimate return to light duties. Later in his reasons his Honour said that the 1984 accident resulted in the respondent's being unable to work as a fitter and turner as acknowledged by Dr Bornstein. In other words, the 1984 accident had the greatest impact on the plaintiffs life. He could no longer work as a fitter and turner. He had another accident and returned to light duties. Whatever may be the consequence of the underlying degenerative condition of the respondent upon his ultimate earning capacity, the condition was not shown, in my opinion, to reflect upon the persistent pain and suffering which resulted from the 1984 accident which is described in his Honour's reasons. His Honour expressly took account of the effect of the pre-existing condition upon the plaintiffs work capacity. There is no finding or evidence which would enable us to say that the existence of this condition made his Honour's award of general damages manifestly excessive. In my opinion, having considered his Honour's reasons for it, it was entirely a proper award. Accordingly, in my opinion, this ground of appeal fails. The second ground in which the appellant challenged his Honour's assessment of future economic loss revolves around a narrow point. In his judgment his Honour referred to the comparable net earnings of a fitter and turner at $480 per week and for a clerk at $350 per week. He took the difference of $130 as the basis for calculating economic loss from the termination of the respondent's employment in November 1990 up to the time of the trial. This was apparently an agreed differential for the period from the second accident to the date of termination. When his Honour came to deal with future economic loss he said that it was clear that the respondent intended to work to the age of sixty-five years, nine years from the trial. He then said that earning capacity would have increasingly diminished by reason of the underlying condition in any event. He proposed, however, for the future to adopt the figure of $230 allowing a discount of 30 per cent on the tables being of a view that the calculation this way accommodates both the increase in the diminution in earning capacity of the plaintiff as he was rendered by the accident as well as allowing for exigencies peculiar to a person in such a position. The appellant claims that the figure adopted by his Honour of $230 was unexplained. Indeed, there was a suggestion that it was a mistake for the figure of $130 although the calculation of future economic loss was based on $230. Apparently an application was made to his Honour to treat the $230 as a slip. This application was refused. At first blush I was attracted by the argument that having said that the earning capacity would be increasingly diminished by reason of the underlying condition in any event, it was curious that his Honour should have increased the differential and hence treated the earning of income as reduced by $100 by the trauma of the 1984 accident. However, implicit in his Honour's approach is that whereas up to the trial he was prepared to proceed on the basis that the residual earning capacity was reduced by the trauma to $350, thereafter it was reduced further by the trauma to $250, which would explain the difference between the wage he now expected and the wage he could have expected ($480) but for the accident. This was clearly a 4 UNREPORTED JUDGMENTS conscious finding of his Honour. While, no doubt, it would have been helpful if he had given reasons for this conclusion, the area is one of imponderables and uncertainties. The residual earning capacity before trial could in the circumstances be regarded as somewhat high. I do not think that the figure chosen by his Honour is demonstrated to be unreasonable. In my opinion, no ground is shown for interfering with his Honour's assessment of future economic loss. Accordingly, in my opinion, this ground of appeal also fails. I would propose that the appeal be dismissed with costs. Clarke JA I agree. Handley JA I also agree. The order of the court will be as Sheller JA has announced. The order for costs, that the appellant pay the respondent's costs includes payment of the costs of the preparation of the respondent's written submissions on an indemnity basis. This is to mark the Court's disapproval of the failure by the appellant to comply with the rules and practices of the Court in relation to the serving of submissions in sufficient time. Counsel for the appellant: P G Mahony Solicitors for the appellant: Australian Government Solicitor Counsel for the respondent: A J Leslie QC/A O Leslie Solicitors for the respondent: Paul A Curtis & Co