PROTECTEX CHEMICAL INDUSTRIES PTY LTD v MORKAYA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and COLE JJA 17 May 1996, 17 May 1996 [1996] NSWCA 438 DAMAGES — personal injuries — Workers Compensation Act 1987 s151L — whether statutory onus discharged — mitigation. Plaintiff had suffered severe burn injuries at place of work — defendant employer admitted liability — serious long term effect on plaintiff's life and economic capacity — damages awarded to plaintiff. On appeal — past loss of earnings — interest on past loss of earnings — future loss of earning capacity — challenged on the basis that worker had not taken all reasonable steps to mitigate damages pursuant to s151L of Workers Compensation Act 1987 — that trial judge had erred in finding statutory onus discharged by worker — that worker had taken all reasonable steps to mitigate damage against weight of evidence. Held: trial judge was entitled to reach the conclusion he did and had sufficient evidence of everything the plaintiff had done up to the trial. It was open to trial judge to conclude that all reasonable steps had been taken by the plaintiff. ORDERS Appeal dismissed with costs. Priestley JA This appeal is by a defendant who was the employer of the plaintiff at the time when a grievous accident occurred at the plaintiffs place of employment. In view of the circumstances of the case and the way the issues on the appeal have been presented it is not necessary to go into detail of what it was that happened to the plaintiff in the accident. It is enough to say that it caused him very serious injury with long term effects upon both his economic capacity and his life in general. At the trial which was before Finlay J sitting alone, the defendant admitted liability. The trial judge delivered reasons for his decision, going into some detail. The severity of the effect upon the plaintiff of the accident can be discerned from the amounts assessed by the trial judge for the different heads of damage, which I will list in order to make intelligible what it was that the employer has sought to appeal about. General damages $108,000, interest on past general damages $7,020, past loss of earnings $116,965, interest of past loss of earnings $51,630, agreed Fox v Wood component $3,562, agreed past out of pocket expenses $103,381, future loss of earning capacity $215,000, past Griffiths v Kerkemeyer allowance $30,880, interest on that allowance $14,822, future expenses $78,400. This totals $729,660, from which $110,131 was to be deducted for the worker's compensation pay back, leaving a judgment sum of $619,529. In the appeal the employer has challenged only three of those items: past loss of earnings, the interest on it, and the future loss of earning capacity. Those items were challenged on the basis of three grounds in the notice of appeal. Other grounds were not pressed. The three grounds were: that his Honour erred in finding the plaintiff had taken all reasonable steps to mitigate his damages pursuant to s151L of the Worker's Compensation Act 1987; that he erred in law in finding the plaintiff had 2 UNREPORTED JUDGMENTS discharged the onus he bore under that section; and that his Honour's finding that the plaintiff had satisfied him he had taken all reasonable steps to mitigate his damage was against the evidence and the weight of the evidence. The three grounds, which can conveniently be dealt with together focused upon three paragraphs in subs2 of s151L. Para(b) is a paragraph saying, when it is read with the earlier part of the subsection, that the Court must consider whether the plaintiff had promptly sought suitable employment from the employer or if necessary suitable alternative employment. Para(c) requires the Court to consider whether the plaintiff duly co-operated in the procedures under the Employers General Rehabilitation Programme and para(d) required consideration of whether the plaintiff had sought appropriate rehabilitation and training. The primary submission for the appellant defendant employer was that there had been no evidence before the trial judge entitling him to deal with the case on the basis that the worker had done what those paragraphs require. Although the argument was put on that no evidence basis, it did seem to me to become in the course of discussion with the Court a somewhat wider argument and amounted really to saying that on the material before him the judge should not have come to the conclusion that he did. I would assume that that argument was also part of what the appellant sought to put before us. In my opinion neither argument succeeds. As to para(d) the plaintiff was injured in December 1988, had very extensive hospital and other treatment for the very severe burning he had suffered and returned to the workplace in or about May of 1989. He there complied with the first stage of a rehabilitation programme organised by the employer. He continued in that program working three hours a day for approximately three months when, according to his own evidence, which I think the Court must take the trial judge accepted in this respect, he had a problem with his legs; as he said, they were cutting at the back of the knees, "They were cutting but it's not durable. I was hitting. There was bleeding. There was too much pain. I couldn't stand up." It was at that point that the expert who was looking after the rehabilitation program in his case recommended that the plaintiff's hours be increased from three to five. It was also at that point that the plaintiff, having attended the workplace for his three hour a day rehabilitation program, as I have already said, ended his attendance, not to return. He was discharged by the employer in November. Returning to para(b) for the moment, on the facts I have outlined, it seems that the trial judge had ample material upon which he could find that the plaintiff had promptly sought suitable employment from the employer. As to para(c), what I have already said, in my opinion, indicates there was material before the trial judge justifying him after considering the requirements of para(c)C in concluding that the plaintiff had complied with that paragraph. As to para(d), the submission for the appellant was that, putting it broadly, the trial judge was not in a position on the evidence before him to find that the plaintiff had complied with its requirement. It was submitted that the employment for which the plaintiff sought to have himself trained after his employment with the appellant ended was incongruous with his abilities and his past training. The submission involved the idea that for the plaintiff to have contemplated that he might find employment as an interpreter or in the travel industry was so URJ PROTECTEX CHEMICAL INDUSTRIES PTY LTD v MORKAYA (Priestley JA) 3 unreasonable a hope that taking it into account with what else happened in regard to rehabilitation after his employment ended the Court could not have found in the way that it did. There are various considerations relating to this which the judge had before him. He had the evidence of the plaintiff. He had the evidence of Dr Dholakia, who incidentally the plaintiff said he had been consulting fortnightly or so in connection with rehabilitation from the time his employment ended right up to the time of the trial and also had the evidence and reports of Dr Lewington which dealt with the plaintiffs abilities and various things that he had done following the ending of his employment. The evidence before the judge, in my opinion, entitled him to reach the conclusion that he did. That conclusion was stated towards the end of his reasons for judgment where he set out the four paragraphs containing the matters he had to consider under s151L(2). He then said, "The plaintiff has satisfied me that he has taken all reasonable steps to mitigate damages." There was a suggestion in the appellant's submissions that the judge should have explained himself further in regard to his satisfaction concerning the mitigation of damages. However, simply reading his reasons in light of the evidence what his process of reasoning was seems plain enough. In addition, the respondent to the appeal, that is the plaintiff below, has filed written submissions with the Court to which are annexed excerpts from written submissions which were placed before the trial judge both by the plaintiff and the defendant, which deal with many of the matters raised today. Looking through those written submissions, it is apparent that to a certain extent at least the trial judge framed his reasons in a way which dealt with the matters raised in the submissions in much the same terms as those submissions had been put. To someone in possession of the written submissions to me trial judge and his reasons, what his Honour was doing and why he did it, as he explained in his reasons, becomes even clearer. A further submission was put that apart from the matters required to be considered by the judge under (2) of s151L he should not have been satisfied on the more general requirement of (3), the subsection which puts upon the plaintiff the onus of proving that all reasonable steps to mitigate damages had been taken by the plaintiff. The key word in that subsection is the word reasonable. The judge had before him full evidence of everything the plaintiff had done following the accident up to trial. It was open to the trial judge on all that evidence to say, as he did say, that all reasonable steps had been taken by the plaintiff. That must mean all steps that, in the circumstances of the plaintiff, and in the light of what happened to him and the consequences of what happened to him, were reasonable. Any other reading could place quite impossible burdens on parties. In my view the judge was entitled to reach the conclusion that he did and I myself would reach the same conclusion on the materials in the appeal papers. One final matter to mention is that counsel for the appellant stressed to the Court the importance of S151L in many cases of personal injury and submitted that this might be a case in which some of the potential difficulties in the working out of the proper meaning of the section might be explored and perhaps some observations made which would be useful to persons occupied in this field in seeking to cope with or otherwise comply with the section in the course of proceedings and litigation. 4 UNREPORTED JUDGMENTS Although I appreciate that if the Court were in a position to comply with that request it might be of assistance, this case does not seem to me to be a suitable one to embark upon any particular interpretation of the section. On the facts in the present case it seems to me that what the trial judge did complied with the section whatever way it might be interpreted and that his decision on the facts before him is not open to challenge here. In saying that I should also point out that I have taken into account in what I have said that there were some aspects of the plaintiffs evidence which the judge did not fully accept. Indeed on reading his Honour's reasons it seems to me to be plain that he took a careful, reasonable and temperate approach to the plaintiffs claims, discounting quite a deal of the plaintiff s case based on an even more extreme view of his condition than the judge found to be the fact. In my opinion the appeal should be dismissed with costs. Handley JA I agree. Cole JA I also agree. Priestley JA: That then is the order of the Court. Appeal dismissed with costs. Counsel for the appellant: DG Nock SC/DG Staehu Solicitors for the appellant: Hunt and Hunt Counsel for the respondent: PW Neil/L Ellison Solicitors for the respondent: Watson Stafford Wilmot Klimt