RNJ SICAME (AUST) PTY LTD v MOSS [2001] NSWCA 213

New South Wales Court of Appeal

CITATION : RNJ SICAME (AUST) PTY LTD v MOSS [2001] NSWCA 213 FILE NUMBER(S) : CA 40838/00 HEARING DATE(S) : 14 June 2001 JUDGMENT DATE : 14 June 2001

PARTIES : RNJ SICAME (AUST) PTY LTD v Andrew David John MOSS JUDGMENT OF : Mason P at 1; Stein JA at 29

LOWER COURT JURISDICTION : District Court LOWER COURT 84/99 FILE NUMBER(S) : LOWER COURT Williams J JUDICIAL OFFICER :

COUNSEL : Appellant: J D Hislop QC/ H Kelly Defendant: T K Tobin QC/ A Black SOLICITORS : Appellant: Price Waterhouse Coopers Legal Respondent: Mark Mulock & Co CATCHWORDS : Damages - appeal - workplace injury - whether trial judge erred in assessment - past economic loss - future economic loss - no error in award. (ND) DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40838/00

MASON P STEIN JA Thursday 14 June 2001

RNJ SICAME (AUST) PTY LTD v Andrew David John MOSS

JUDGMENT 1 MASON P: In January 1995 the respondent was injured at work when he slipped on an oily floor. He injured his lower back. He was twenty two at the time. 2 At a trial in the District Court on 5 October 2000 the respondent established negligence and recovered a verdict of $568,732.15. Included in the components of the verdict were an award of $96,609 for past economic loss and an award of $304,000 for future economic loss. 3 The appellant contends that the trial judge's assessment of damages for impairment of past and future earning capacity is erroneous and requires correction, with consequential adjustment to the allowances for superannuation and interest. 4 The trial judge, Williams DCJ, reviewed the medical evidence. He accepted that the respondent suffered permanent disability of his back in the order of twenty two to twenty five per cent and permanent disabilities of a lesser percentage in both legs. Among the medical opinions accepted by his Honour was that of Dr Scougall who reported in March 1997: His back lesion has now stabilised. I believe that his present level of impairment of function is likely to remain unchanged in the future. Even if he does have further treatment, it is very doubtful I believe that this treatment is likely to lessen his present level of impairment of function. Since he is able to do semi-sedentary work, I believe he can stand and walk for a reasonable length of time but has a definite restriction on activities requiring bending and lifting, I believe he has a 20% permanent impairment of his back. On the information available to me, he had a 0% impairment of his back prior to the episode that occurred at work on 10 January 1995. Since also he has bilateral leg pain of about equal intensity in each leg and since that leg pain contributes to his level of impairment of function, I believe that he has a 10% loss of the efficient use of each leg, at or above the knee, deemed to include below the knee. 5 The respondent gave evidence that he experienced pain daily of varying intensity but normally getting worse during the day. The award for non-economic loss was assessed at forty six per cent of a most serious case. 6 The only oral evidence at trial was that of the respondent, who gave evidence of his pre- and post-injury work experience. That experience was fairly extensive and obviously impressed the trial judge. The respondent left school at age fifteen. His literacy is very limited and he lived in a semi-rural area. Between ages fifteen and twenty two he had a wide range of jobs, including labouring, brickie's labourer, making house frames, working in a furniture factory, gyprocking, welding, engineering and mechanical work. He had also spent time working on escalators, on a dairy farm and as a roof insulator. At the time of his injury, the respondent's job with the appellant, a manufacturer of electrical conductors, was that of a leading hand. In the respondent's words: I was to make sure everyone else was doing their job properly and to make sure of the quality of the products that were coming out and to keep the machines running. 7 The respondent was earning $400 per week net, this sum including overtime every day. 8 Since his injury, the respondent made several attempts to return to gainful employment. He worked with the appellant for a time on light or restricted duties. He tried his hand as a painter. He sought a vocational assessment report from CRS Australia in May 1999. The findings of that report included the following: Mr Moss disclosed that he is in constant pain and uses a tennes machine on a regular basis. After the injury Mr Moss reported that he attended physiotherapy, however this increased the pain and he no longer attends. Mr Moss reported that his left leg feels "dead" and he experiences a constant pain. He reported that the right leg is not as severe as the left and he experiences more sensation in the right leg. Mr Moss reported that he experiences sharp pains in his back if he bends or lifts over 5 kilogram. Mr Moss reported that before the injury he was physically active participating in rock climbing and bush walking. Now he reported that he is able to walk short distances on flat terrain, needs to shift his position when sitting and needs to stretch after 30 minutes sitting. Mr Moss reported that he is able to stand stationary for about 10 minutes, longer if he is able to alter his position and relieve the pressure on his back. Mr Moss stated that he has a driver's licence, however he cannot afford to run a vehicle and borrows his parents when he needs to attend appointments as the jolting on public transport causes severe pain in his back and he cannot keep his balance if required to stand. Mr Moss reported that his car had been a manual without power steering, which he found difficult to steer. Mr Moss reported that he does not like driving in traffic and does not have the patience to drive to the city or in high traffic areas. Mr Moss reported that he is not on medication as the Naprosyn caused stomach problems. If the pain is severe and the tennes machine has not impacted on the pain Mr Moss reported that he takes panadol. Mr Moss disclosed that he became depressed, was bored and was feeling suicidal after leaving his job and not being able to maintain any of the jobs he obtained for more than a week due to the pain and lack of physical capacity. Mr Moss claimed that he had worked hard and lost everything and felt that there was no point in living. Mr Moss stated that he had been living with his girlfriend, who left after he was out of work and he moved back in with his parents as he could not afford accommodation. Mr Moss said that he did not seek any assistance for his depression but pulled himself together and reported that he is now focussed on gaining employment and getting on with his life. Mr Moss said that he feels like a burden on his parents as he is no longer self-sufficient. While he reported that he is aware of his limitations Mr Moss presented as very motivated to obtain employment. 9 The rehabilitation counsellor concluded by saying that after discussions with Mr Moss and in view of Mr Moss's work experience, educational background, interests, physical abilities and stated work preferences, she thought the following occupations were considered best: (a) motor vehicle and related products sales person and (b) courier. 10 The respondent gave evidence about his own assessment of his capacity to deal with each type of employment thus suggested. He indicated areas in which he thought he would be able to handle the job and areas where problems would arise in consequence of the back pain (see Black 25- 27). 11 The trial judge did not overlook this evidence. The findings he made in relation to the respondent's willingness to work and capacity for work included the following: There is a general concession that the plaintiff is unfit for work involving lengthy standing, bending, carrying or lifting. The plaintiff concedes that there is work that he can do, however, given his problems with literacy and the fact that he lives in a country area of course the problems of finding appropriate employment are going to be extremely difficult. The plaintiff I am satisfied has a good worth ethic. I am satisfied that his inability to work is caused by the pain that he experiences as a result of this accident. There may well be a mild psychological component but I agree with Dr Bodel that that component is not out of keeping with the type of injury that he has….