Johnston v Cowra Shire Council [2000] NSWCA 117

New South Wales Court of Appeal

CITATION : Johnston v Cowra Shire Council [2000] NSWCA 117 FILE NUMBER(S) : CA 40785/98 HEARING DATE(S) : 5 May 2000 JUDGMENT DATE : 5 May 2000

PARTIES : Colin Joseph Johnston (Appellant) Cowra Shire Council (Respondent) JUDGMENT OF : Stein JA at 1, 49; Heydon JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 42/98 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER :

COUNSEL : J Glissan QC/A Capelin (Appellant) A Hewitt SC (Respondent) SOLICITORS : Golsby Whiteley (Appellant) P W Turk & Associates (Respondent)

DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40785/98 DC 42/98

STEIN JA HEYDON JA

Friday, 5 May 2000

COLIN JOSEPH JOHNSTON v COWRA SHIRE COUNCIL JUDGMENT

1 STEIN JA: The Court is in a position to give judgment now and I will ask Heydon JA to give the first judgment of the Court. 2 HEYDON JA: This is an appeal by the plaintiff against the quantum of damages awarded by Phegan DCJ in relation to a back injury suffered by the plaintiff when he slipped while working on a truck as a temporary full-time employee of the defendant on 18 April 1995. 3 There were three grounds of appeal. 4 The first ground was as follows: "The amount of damages for non-economic loss was manifestly inadequate having regard to the claimant's age, background and employment prospects in circumstances where there is no evidence available to satisfy the requirements of Purkess v Crittenden (1965) 114 CLR 164." 5 The written submissions of the plaintiff contended as follows in paragraphs 3-5: "It is submitted that his Honour's finding in relation to non-economic loss of 24% of a most extreme case was manifestly inadequate and against the weight of the evidence. According to the plaintiff he suffered intermittent back pain of a debilitating nature following the initial injury on 18 April 1995, and it was expected that pain would continue into the future and be subject to aggravation by work stressors. The plaintiff did not complain very much as he was anxious to keep his job. Having regard to the plaintiff's age and the medical evidence of the debilitating nature of problems likely to be experienced by the plaintiff in the future, it is submitted that his Honour's finding in relation to non-economic loss was manifestly inadequate. It is submitted a more appropriate finding would have been in the order of 35% of a most extreme case." 6 The contention that the plaintiff did not complain very much as he was anxious to keep his job is supported by a finding of the trial judge at red 40 L-X and also red 41 M-P. The contention that the plaintiff suffered debilitating back pain and that this was likely to continue for many years, the plaintiff only being 35 at the time of the trial, is supported by findings of the trial judge at red 45 T to 46 K. 7 However, other findings by the trial judge or evidence narrated by the trial judge in non-critical fashion, stand in the way of accepting the submission. 8 The first of these was at red 40 Y to 41 I where his Honour said: "There is also the evidence, not controverted, that the plaintiff continued to work on, to all appearances, in much the same way after the 1996 incident [I interpolate to say that is a reference to another accident causing injury] as he had after that of 1995. While he may have been suffering from intermittent pain, and while he may have had to avoid taking on particularly heavy lifting or other activities which would have placed undue strain on his back, he nonetheless worked on a full-time basis, and as far as his fellow workmen were concerned, showed no signs of avoiding the overall tasks which he was required to do. In fact the evidence was that he was regarded as a particularly reliable and good workman."