Visyboard Pty Limited v Ranieri [1999] NSWCA 331

New South Wales Court of Appeal CITATION : Visyboard Pty Limited v Ranieri [1999] NSWCA 331 FILE NUMBER(S) : CA 40792/98 HEARING DATE(S) : 22/07/99 JUDGMENT DATE : 22 July 1999

PARTIES : Visyboard Pty Limited Frank Ranieri JUDGMENT OF : Beazley JA at 1; Davies AJA at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 5459/97 LOWER COURT JUDICIAL OFFICER : Dent DCJ

COUNSEL : Appellant: I G Harrison SC Respondent: M Williams QC/ P Little SOLICITORS : Apellant: Blake Dawson Waldron Respondent: Geoffrey Edwards & Co CATCHWORDS : Damages for personal injury; sustained during employment; assessment of past and future economic loss; medical evidence DECISION : Appeal Dismissed With Costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40792/98 DC 5459/97

BEAZLEY JA DAVIES AJA

Thursday, 22 July 1999

VISYBOARD PTY LIMITED v FRANK RANIERI

JUDGMENT

1 BEAZLEY JA: This is a defendant's appeal from a decision of Dent DCJ in which his Honour awarded the plaintiff (the respondent to this appeal) damages for personal injury which he sustained during his employment with the defendant/appellant. The appellant appeals only against the award for past and future economic loss. 2 The respondent injured his back on 18 April 1994 when, in the course of his work for the appellant, he lifted a 44 gallon drum of glue onto a forklift and ruptured a disc. He continued work with the appellant until 18 February 1997, when his back "locked up". The respondent has not worked since. His employment was subsequently terminated by the appellant on 31 October 1997. In the letter of termination the appellant advised the respondent: "Unfortunately, Visyboard Pty Ltd is unable to continue your employment. We have come to this decision after a close examination of your current medical condition as certified by your treating doctors which indicates that you are unable to return to your pre-injury duties as a supervisor. Rehabilitation, which the company regards as a means to return injured employees to their pre-injury employment, has not been successful. In these circumstances we, unfortunately, do not have any suitable positions available for you at this time." 3 The respondent's personal history was that he was educated in Italy until the age of 11. He later came to Australia with members of his family to join his father and sister, who were already here. He has always worked in unskilled jobs, although his rapid promotion to foreman in the employment of the appellant is testament to his innate organisational abilities and leadership qualities. 4 The reports of ten medical witnesses were tendered at trial. None were called for cross-examination. The trial judge awarded $77,139 of past economic loss on the basis that the respondent had been totally incapacitated for work from the date of ceasing to work until the date of hearing. He awarded $229,544 for loss of future earning capacity, on the basis that he had lost two thirds of his earning capacity. 5 The appellant submitted that the medical evidence did not support a total loss of earning capacity up to the date of hearing and further submitted that that award was inconsistent with an assessment of a two thirds loss of earning capacity commencing the day after the hearing loss. It was submitted that inconsistency itself revealed error in the trial judge's assessment. As to future economic loss the appellant submitted that there was in fact no loss of earning capacity. 6 In both his written and oral submissions, counsel for the appellant referred the Court to the various medical experts' reports tendered at the hearing. Those reports were remarkable for almost totally preceding the date of the incident on 18 February 1997 which, on the respondent's evidence, caused him to cease work. Dr Mahoney, however, did examine the respondent after that time. The effect of Dr Mahoney's evidence was that when he saw him, which was about two weeks before the February 1997 incident, he considered the respondent to be fit for work not involving significant bending or lifting. When he saw him on two occasions in periods of about three weeks and five weeks after February 1997 he considered him to be unfit for work and concluded overall that the respondent: "… has been considered fit for duties as outlined (as a supervisor) and, in order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant bending or lifting." 7 The trial judge stated that Dr Mahoney had expressed an opinion that the respondent was unfit for work up until the date of termination of his employment on 31 October 1997. His Honour was in error in making that finding as Dr Mahoney's last consultation was in March 1997. The respondent contends, despite the error, it was still open for his Honour to infer that the respondent in fact remained unfit up until that date. The appellant contends that Dr Mahoney's evidence is inconsistent with the finding of total incapacity and he makes that submission as from the date of cessation of employment on 18 February 1997, notwithstanding the incident that occurred on that day. 8 The appellant also referred to the report of Dr Smith of 2 March 1998, that being a report which did post-date the February 1997 incident. That report concluded that: "I would not anticipate any spontaneous improvement or attributable deterioration and the present situation could reasonably be regarded as permanent for assessment purposes. As he has not worked for over a year and had significant other impairment I am doubtful of his returning to the work force. If his back injury is considered in isolation he would be able to manage a wide range of duties provided heavy, repetitive or provocative lifting and prolonged or repetitive bending could be avoided and could change posture at reasonable intervals and at will." 9 The appellants also say that this opinion is not consistent with a finding of total incapacity for work since February 1997. 10 It is worth noting, however, that Dr Smith in his report also reported that the respondent regarded himself as capable of only light physical activity and had reported to Dr Smith that walking 500 metres, sitting and driving for half an hour were possible but that he needed help with his socks and that his sleep was regularly disturbed by back pain. Dr Smith reported that a CT scan had showed a moderate central protrusion at L4-5 and that the symptoms: "… are consistent with this diagnosis which is consistent with the injury described." 11 Dr Anderson provided a report dated 9 October 1996, that is, preceding the February 1997 incident. He concluded that the respondent "is fit to continue with his current occupation at its existing level … H[e] is not fit to return to his previous heavy physical activities of lifting pallets and manoeuvring drums of glue". Dr Bodel, in a report of 6 January 1997, again preceding the February 1997 incident, expressed the opinion that the respondent "should be able to continue in work as a foreman indefinitely". 12 Dr Stephen provided two reports, dated 3 June 1996 and 10 February 1997, neither of which contain an opinion as to the respondent's work capacity. The final report notes that the respondent's "symptoms have remained unchanged over the past 18 months and they are likely to persist in low-grade fashion into the indefinite future". The appellant argues that this opinion supports the contention that, to the extent that the respondent was capable of performing selected duties over that period, he should have remained capable of continuing to perform similarly thereafter, and that such a finding is not consistent with his Honour's finding of total incapacity. 13 The respondent accepts that the medical evidence supports the proposition that the respondent retained a residual earning capacity which permitted him to perform selected duties of the sort he had performed up to and including February 1997, but contends that such residual capacity was interrupted for a period when his back locked up and continued up until the date of hearing. 14 In that regard the respondent himself had given evidence that he did not consider that he would be able to do the supervisor's job at Visyboard. The trial judge accepted the respondent as an honest witness and found no reason to reject or qualify any part of his evidence. It was against this background that the trial judge held: "I am satisfied from the plaintiff's evidence and the evidence of Doctor … Smith and Doctor Mahoney that the plaintiff has been effectively disabled from working in any employment up to the present time by the exacerbation of pain and symptoms which occurred in February of 1997 …"