New South Wales Court of Appeal CITATION : DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 17 May 2004 JUDGMENT OF : Giles JA at 1; Santow J at 55; Windeyer J at 56 DECISION : (1) Appeal allowed; (2) Set aside verdict and judgment for $404,452.59 and in lieu thereof verdict and judgment for $227,408.76 taking effect on 25 March 2003; (3) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified. CATCHWORDS : Damages - tortious injury - subsequent non-tortious injury - would independently have diminished the earning capacity diminished by the first injury - whether taken into account in assessing damages. D Baker v Willoughby (1970) AC 467; Bridge Printing Pty Ltd v Mestre [1999] NSWCA 342; Godden v Metropolitan Meat Industry Board (1972) 2 NSWLR 183; Graham v Baker (1961) 106 CLR 340; Faulkner v Keffalinos (1971) 45 ALJR 80; Harwood v Wyken Colliery Co (1913) 2 KB 158; Husher v Husher (1999) 197 CLR 138; Jaksic v Cossar (1966) 2 NSWR 581; CASES CITED : Jobling v Associated Dairies Ltd (1982) AC 794; Leschke v Jeffs (1955) QWN 67; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Perkes v Crittenden (1965) 114 CLR 164; South Australian Asset Management Corporation v York Montague Ltd (1977) AC 191; State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003; State of New South Wales v Moss (2000) 54 NSWLR 536; Watts v Rake (1960) 108 CLR 158; Western Australia v Watson (1990) WAR 248. PARTIES : DNM Mining Pty Ltd - Appellant Anthony Barwick - Respondent FILE NUMBER(S) : CA 40305/03 COUNSEL : G F Little SC & A J Black - Appellant P R Hessessy SC & E Romaniuk - Respondent SOLICITORS : Hicksons - Appellant Farrell Lusher, Wagga Wagga - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 261/01 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40305/03 DC 276/01 GILES JA SANTOW JA WINDEYER J Tuesday 18 May 2004 DNM MINING PTY LTD v BARWICK Judgment 1 GILES JA: This is an employer's appeal from a judgment in favour of an injured worker. The appeal is confined to the damages for past economic loss and future economic loss, being the amounts of $90,022.45 and $168,511.30 plus superannuation. The appellant's primary submission is that the amounts should be $49,493.00 and nil. In issue is how the damages should have been assessed when the respondent's earning capacity was diminished by the injury for which the appellant was liable and was then diminished by an injury for which the appellant bore no responsibility. The respondent's employment and successive injuries 2 The respondent was dyslectic and had learning difficulties at school. He was good at sports, but was virtually unable to read or write. Prior to his employment with the appellant he had a number of unskilled jobs, doing casual landscape gardening, as a farm hand and as a driver's offsider. 3 In March 1995 the respondent began employment with the appellant at its gold mine at Mineral Hill near Condobolin. He worked as a miner. He had a neck condition bringing some pain to his neck and shoulders, but it did not impede his work. 4 On 4 September 1995 a piece of rock fell from the roof of the mine tunnel onto the respondent's lower back. He went to a doctor, who said that his injury was muscular. After about a week he returned to work, but with pain. Further investigation showed a fracture of the transverse process of the first lumbar vertebra, and he was certified unfit for work. The judge appears to have accepted that he also suffered "a severe ligamentous or soft tissue injury" to his back. He returned to work on light duties on occasions in the latter part of 1995, but then no light work was offered and in early 1996 his employment by the appellant ceased. 5 In mid-February 1996 the respondent began employment with Kidman & Co, driving tractors, front end loaders and other machinery in its farming business and doing some general farm labouring. He still had back pain, but was able to operate the machinery and had difficulty only with work such as fencing. 6 On 22 February 1997 the respondent was assaulted in a hotel. He was struck on the head, and for six months or more had headaches and some dizziness and pain in his neck and shoulders. He remained in his employment with Kidman & Co. While part of the history, this injury was not relied on for loss of earning capacity. 7 On 8 September 1999 the respondent was involved in a car accident. His car struck a cow and went off the road. He suffered injury to the neck and a fracture of the right clavicle. He was off work until early December 1999, and then returned to Kidman & Co on light duties. As part of his light duties the respondent was required to drive a four-wheel motor cycle on stock work. This caused significant jarring to his neck and shoulder. He sought further medical treatment, and was certified unfit for work. He attempted to return to work at Kidman & Co, but he could not do the work available and his employment by Kidman & Co ceased in January 2000. 8 The respondent was unemployed for some time. He undertook limited bar work in the period March – June 2001, but could not continue because of pain brought about by "a lot of twisting and lifting like the glasses". Thereafter he was unemployed until the hearing in March 2003. 9 The respondent said that he had constant pain in his back and neck and pain off and on in his shoulder. He did a few hours voluntary work each week at Vinnies. He said he thought he could "serve in a shop or something", but had not been able to get work in Condobolin where he lived. The judge's findings 10 The respondent's case included that his neck had been injured in the mining accident as well as his back. The judge did not accept his case in this respect, finding that the respondent had the pre-existing neck condition and that there was neither a fresh injury nor an aggravation of the pre-existing condition. 11 The judge appears to have accepted that mining work was physically hard and that a great deal of it required working at or above shoulder level. I do not understand that to have been disputed. 12 The judge found - (a) that if the respondent had not been injured in the mining accident "there is no reason to believe that he would not have continued in mining work until the present time … ", and that "because of his back injury, [he] was no longer capable of working as a miner"; (b) that the respondent was able to perform most of the work and to hold down the job at Kidman & Co until after the car accident, and that if he had not been injured in that accident "he would most likely still be working in that, or in a similar, job as a plant operator"; (c) that the injury that had prevented the respondent from working in his former occupation at Kidman & Co since January 2000 was the injury to his neck and shoulder, and that "the neck injuries are the real reason why [he] is unable to work, say, as a machine operator"; (d) that the respondent's "injury", apparently meaning both the back injury and the neck and shoulder injuries, had become permanent. 13 The judge made no finding as to what employment, if any, was open to the respondent following his injury in the car accident. He said that the respondent and his mother "gave evidence about the consideration of possible current and future employment", but said - "In my view that evidence is not particularly relevant because, as I have found, his current condition of disability is due principally to the damage to his neck and shoulder suffered in the motor vehicle accident or, in any event, independently of any fault of the defendant." 14 The judge did say that "the aggravation of [the respondent's] neck injuries while he was riding the four wheel motor cycle in December 1999 was the straw that broke the camel's back", and that the medical evidence was that "the pain at this stage was primarily, if not exclusively neck and shoulder pain". Counsel for the respondent drew attention to his evidence that he had trouble with his low back in December 1999 but did not tell the doctors about it "because you go to the main pain", to his denial that the "real problem that you have these days" was the neck and shoulder, and to his evidence in re-examination to the effect that, while he had constant pain in his back and neck, it was the back pain that prevented him from working. The judge did not specifically refer to this evidence. It was not submitted that the judge's finding in (c) above, or his Honour's reference to the respondent's current condition being due principally to the damage to his neck and shoulder, were incorrect. Notwithstanding this evidence, it was open to the judge to find as he did. The submissions to the judge 15 The judge's assessment of economic loss should be seen in the light of the submissions made to him. Fortunately, a transcript is available. 16 As I have said, the respondent's case at the trial included that his injury in the mining accident had extended to his neck. Counsel for the respondent, Mr Hennessy SC, submitted to the judge that the car accident aggravated a neck injury caused by the mining accident, but that the aggravation to the neck injury had in any event settled down by mid-2000 or at the latest by mid-2001. He submitted that the back injury alone was the cause of the respondent's diminished earning capacity, but that if there were added diminution from the aggravation to the neck injury it was a consequence of the mining accident so that all diminution in earning capacity was caused by the mining accident. 17 Counsel for the appellant, Mr Black, submitted to the judge - "If your Honour considers that the plaintiff has suffered an injury to his low back, but not an injury to his neck, but if notwithstanding my submissions your Honour still considers that that's more than 24 per cent of a most extreme case, and then your Honour is looking at quantification for economic loss and domestic assistance, it is my submission that never the less your Honour has to consider the incapacity caused by the neck and shoulders, and I understand from Mr Hennessy's submissions that he doesn't disagree with the general approach. But it would be in my submission incorrect to attribute the time off work between effectively April 2000 and the present as being attributable to the low back when one looks at the history. HIS HONOUR: I have given that some thought and it seems to me that what happened in the motor accident was a consequence of the motor accident, not a consequence of any fault of the defendant. MR BLACK: That's right. HIS HONOUR: And what I have to look at is the loss, if any, attributable to the fault of the defendant, and that may or may not be a difference between what he was earning at the mine and what he could earn elsewhere. BLACK: Yes, well I think that's right your Honour, it's not quite one of those United Dairies v Jobling [ Jobling v Associated Dairies Ltd (1982) AC 794] situations but it's close to it. And there is a rather helpful decision of the Full Court of Western Australia in the matter of State Government Insurance Commission v Oakley, and I have a copy for your Honour. I probably don't need to take your Honour through it because the submission is precisely what your Honour has just said. The relevant judgment is the judgment of his Honour the Chief Justice Mr Justice Malcolm, and I say no more about it." 18 Counsel for the respondent did not further deal with this in his submissions in reply. 19 Counsel for the appellant added to his submissions just before the judge reserved his decision - "BLACK: Your Honour the other point that I wish to make is that, or make clear, is that the defendant's case is that the motor vehicle accident was a supervening event that has affected his capacity anyway, that is it's the motor vehicle accident neck and shoulder that has quite apart from anything else made the plaintiff unsuited to heavy manual work. That's the context in which your Honour has to look at this case. HIS HONOUR: I understand that too, thank you Mr Black. What I would like to do now, as I say I will take some time to consider this, and I should be able to give a judgment next week." 20 Counsel were alive to the potential of the car accident as an independent source of loss of the capacity to work as a miner for which the appellant was not responsible. Counsel for the respondent sought to negate it through an end to its effect, and in any event through a causal connection between the mining accident and the injury suffered in the car accident. Counsel for the appellant sought to use it to cut down the damages. The judge's assessment of economic loss 21 When working at the mine the respondent earned about $650 per week net. He earned less when working for Kidman & Co. At one point the judge said that he earned "between approximately $320 and $520". At another point the judge said that he "suffered an immediate reduction in wages of some $335 per week although his wage subsequently increased, and after the first year the loss became somewhat less." 22 After referring to the lastmentioned reduction in wages, the judge said - "I find that he is entitled to the difference between his wage as a miner and, until he ceased working for Kidman's at the end of 1999, his wages in that employment. Since that time his economic loss should be calculated on the basis that he would have continued working at Kidman's or in similar work." 23 Apparently in amplification of this, the judge then said - "I have been referred to a judgment of Malcolm CJ in the Full Court of the Supreme Court of Western Australia, State Government Insurance Commission v Oakley (1990) Australian Torts Reports 81-003. In that case his Honour said (at 67,577): 'In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) where the further injury results from a subsequent accident, which would not have occurred and the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as completely independent of the first.' His Honour then referred to some authorities supporting the propositions he had enunciated and continued (at 67,578): 'In such a case the plaintiff does not recover the full damages resulting from the second accident, but only those extra consequences of the second injury due to the existence of the first injury.' His Honour went on to consider the effect of Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. In my view the plaintiff's disabilities should be regarded as 'the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant'. It is not as if the defendant in this case is not liable to compensate the plaintiff for the injuries he suffered as a result of the defendant's fault. However, the defendant does not have to compensate the plaintiff for those aspects of the plaintiff's condition which cannot be attributed to its fault. It follows that his loss of future earning capacity is to be calculated on the same basis, namely, that, but for the injuries received in the motor vehicle accident, he would have continued to work as a machine operator or driver for the remainder of his working life." 24 The calculation of economic loss as set out at the end of the judge's reasons was – "Past economic loss 90022.45 Wages 4/09/95- 12/2/96 - $13650 Loss of earnings 13/2/96-8/9/99 (difference between earnings of comparable and actual earnings at Kidman's) $3584311 Loss of earnings 9/9/99 to 27/3/03 (3 years 200 days)(difference between earnings of comparable and highest rate of earnings at Kidman's [$516 net p.w.] increased by 3.68% p.a.) $54379.452 Past superannuation at 7% 6301.57 difference between average weekly net wage of comparable [$806.77] and last wage rate at Kidman's increased by 3.68% p.a. [$575.09] ($231.68 p.w. X 855.7 X 85%) Future superannuation at 9% 15166.02 1Year ended 30/6/96 – loss of earnings $4469 Year ended 30/6/97 – loss of earnings $8367 Year ended 30/6/98 – loss of earnings $9829 Year ended 30/6/99 – loss of earnings $10834 29/9/99 – 30/6/00 –loss of earnings $14370.30 Year ended 30/6/01 – loss of earnings $12674.62 Year ended 30/6/02 – loss of earnings $13108.53 1/7/02-27/3/03 – loss of earnings $14226." 25 The calculation of future economic loss was not fully set out. Taking a wage as a miner of $806.77 and a wage at Kidman & Co of $575.09, the difference being $231.68, applying the multiplier 855.7 appropriate to employment until age 65, and deducting 15 per cent for contingencies brings a figure of $161,511.30. Observations on the judge's reasons 26 The judge's findings meant that, contrary to Mr Hennessy's submissions, the respondent's loss of earning capacity was not all caused by the mining accident. The judge did not accept that the mining accident caused neck injury, so the car accident did not aggravate a neck injury caused by the mining accident. The injury in the car accident at the least further diminished an earning capacity already diminished by the mining accident: as the judge said, "the neck injuries are the real reason why [the respondent] is unable to work, say, as a machine operator". 27 The judge recognised this in his reference to separate consequences of concurrent and independent causes only one of which was the conduct of the defendant, words taken from State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003 at 67,578, and in saying that the appellant did not have to compensate the respondent for those aspects of the respondent's condition which were not its fault. He recognised position (3) of the three positions stated in State Government Insurance Commission v Oakley, notwithstanding the judge's citation from that case commencing "In such a case … ", which was concerned with positions (1) and (2). 28 So far as he went, the judge correctly confined the respondent's economic loss to the loss produced by the diminution in his earning capacity caused by the mining accident, measured by the difference between his wages as a miner and his wages in employment similar to his employment with Kidman & Co. He gave no damages for loss produced by the further diminution in earning capacity caused by the car accident. 29 Counsel for the appellant specifically put to the judge that the car accident made the respondent unsuited to heavy manual work. He had earlier referred to Jobling v Associated Dairies Ltd, albeit at that point as "not quite" the present situation but "close to it", in which it was held that supervening illness destructive of all earning capacity had to be taken into account in assessing economic loss. There was clearly enough raised for the judge's attention that he should go further, and should award no or reduced damages for economic loss after the car accident because the car accident independently caused a diminution in earning capacity which encompassed the diminution in earning capacity caused by the mining accident. 30 The judge did not reduce the damages for economic loss for the period after the car accident. The facts in State Government Insurance Commission v Oakley were not those of a position (3) case and, apart perhaps from the consideration of Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 concerning disentangling the consequences of independent and concurrent causes, that case was not concerned with how the subsequent independent injury affected the award of damages. The judge did not make findings as to the comparative effects of the mining accident and the car accident on the respondent's earning capacity. He did not find that the injury in the car accident would have had no effect on the respondent's capacity for remunerative employment as a miner. Nor did he expressly find that it would independently have destroyed that capacity. Was the judge in error: the appellant's subm i ssions 31 The respondent was entitled to damages for economic loss to 8 September 1999, the date of the car accident. His back injury brought a loss of earning capacity, because he could no longer work as a miner. It was productive of economic loss, because he was off work for much of the latter part of 1995, he was out of work until he obtained employment with Kidman & Co in February 1996, and until the car accident he earned less with Kidman & Co than he would have earned as a miner. The appellant's figure of $49,493.00 took the judge's amounts for this period. Calculated as the judge calculated it, superannuation is $3,464.51. 32 The appellant submitted that the respondent was not entitled to the damages for economic loss awarded by the judge for the further period from the time he was injured in the car accident. It said that the injury in the car accident would independently have incapacitated him from working as a miner, acknowledging that the judge had not expressly so found but saying that it followed inevitably from mining work being physically hard and requiring work at or above shoulder level and from the respondent's incapacity to work for Kidman & Co or even in bar work. Taking that into account, it said, the diminution in earning capacity from the back injury was not productive of the economic loss assessed by the judge after the car accident, because the economic loss was to be attributed to the later diminution in earning capacity for which the appellant was not responsible. The appellant relied in particular on Jobling v Associated Dairies Ltd and the judgment of Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80. 33 The appellant recognised that the respondent may have been entitled to some damages for economic loss for the further period. There might have been work other than mining work which the back injury prevented him from performing but the neck and shoulder injuries did not. Even if so, the appellant submitted, the respondent was not entitled to the damages awarded by the judge. Was the judge in error: the respondent's submissions 34 With a qualification, the respondent did not take issue with the basis of the appellant's argument. He accepted that the injury from the car accident had been found to be causally independent of the mining accident, and as I understand his submissions he accepted that incapacity to engage in remunerative employment subsequently and independently caused by the car accident would be regarded as productive of the respondent's economic loss. In his written submissions he accepted that where there were multiple causes each sufficient to produce the incapacity, the law would attribute the whole of the causal effect not to the prior tortious cause but to a subsequent innocent cause, or alternatively that in that situation the reasoning in Jobling v Associated Dairies Ltd and Faulkner v Keffalinos led to the same result. 35 The respondent's submissions were essentially factual. He submitted that the appellant had to show that the injury in the car accident so diminished his earning capacity that, even if not injured in the mining accident, he would have had the loss of earning capacity which he had at the time of the hearing. He said that the judge had not so found, and that the evidence did not support such a finding. The respondent said that it was the combination of the back, neck and shoulder injuries which caused his near total loss of earning capacity, and drew attention again to the judge's description of the neck and shoulder pain as the straw that broke the camel's back and to the other evidence to which I have earlier referred in that connection. 36 The qualification is that, and with manifest diffidence on the part of his counsel, the respondent submitted that where the subsequent of the multiple causes each sufficient to produce the incapacity was tortious, the law would attribute the whole of the causal effect to the prior tortious cause: Baker v Willoughby (1970) AC 467. He said that that was because the later cause was compensible, and that because he was entitled to workers compensation with respect to the car accident it was to be regarded as a compensible cause. So, it was said, the injury from the car accident was to be put aside. Was the judge in error: decision 37 The object of damages awarded for tortious injury is to put the plaintiff in the same position, so far as money can do so, as he would have been in if he had not been injured. 38 Damages for economic loss are conceptually for loss of earning capacity (see for example Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4, 16; Husher v Husher (1999) 197 CLR 138 at 143). Damages are not recoverable unless the loss of earning capacity has been or will be productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347; Medlin v State Government Insurance Commission at 3). In effect, the lost earning capacity is valued according to the earnings it would have brought to the plaintiff. 39 In recognition of the object of the award of damages, it is necessary to allow, amongst other positive and negative contingencies, for the contingency that the lost earning capacity would have been lost in whole or part from a cause independent of the defendant's tortious act. The earnings which the lost earning capacity would have brought to the plaintiff would have been more or less according to the duration and extent of its exercise, and there would be over-compensation if the lost earning capacity were valued regardless of the possibility that it would otherwise have been lost. Since the court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of the lost earning capacity and so in arriving at the plaintiff's damages. 40 This was the reasoning in Jobling v Associated Dairies Ltd and the judgment of Windeyer J in Faulkner v Keffalinos. It is compelling, however difficult it may sometimes be to apply it to the facts. Conformably with it, a plaintiff's damages are assessed according to the fact rather than the contingency that his earning capacity is later wholly lost from the independent event of death (Jaksic v Cossar (1966) 2 NSWR 581) or illness (Jobling v Associated Dairies Ltd), or lost for a period of time from an independent event such as a heart attack (Bridge Printing Pty Ltd v Mestre [1999] NSWCA 342). The known contingency in Leschke v Jeffs (1955) QWN 67 was the plaintiff's imprisonment for ten years, which was regarded as diminishing his earning capacity while in prison and on the labour market after his release: it could alternatively be seen as going to the exercise of his earning capacity. As was said by Windeyer J in Faulkner v Keffalinos at 85 - "The impairment of a faculty, such as a capacity to earn money, is not like damage to property. The capacity has no value unless it be exercisable. It is only while, and for so long as, it can be exercised that an impairment of it can produce a pecuniary loss. It is for this reason that in assessing damages for the destruction or reduction of earning capacity an allowance must ordinarily be made for the contingency – if in the particular case it is seen as a reasonable possibility – of interruptions of a man's working life by periods of unemployment, sickness or accident. If in fact any of such things occurs before the assessment has to be made, what would have been allowed for as a possibility has become an actuality: the risk of an interruption of earnings has materialised and a hypothetical deduction to be made in the computation of damages has crystallized. It is therefore a mistake to think of damages recoverable for the consequences of the first accident as diminished by the second accident. So far as the damages result from the impairment of earning capacity, the second accident merely supplies a measure of one thing that must be taken into account, namely the risk of an accident." 41 In my opinion, the same must go for the fact rather than the contingency that the plaintiff's earning capacity is wholly or partially lost from a later independent accident. It would be absurd to take account of the contingency of death or illness when hypothetical but refuse to take account of it when a known fact, and similarly for the contingency of accident. 42 In Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, para 2.6.12 it is suggested that the second accident does not merely supply a measure of the risk of an accident, because "[t]he first accident has changed the situation, so that the contingencies relate to the hypothetical world without the first accident, whereas the second accident occurs in the real world as modified by the first accident". In this way the learned author distinguishes between a subsequent natural condition such as the illness in Jobling v Associated Dairies Ltd, and a subsequent accident. 43 It is well established that it would not avail the respondent to suggest that, but for the mining accident, his life may not have taken the course by which he was driving at a time and place coincident with the cow (see Faulkner v Keffalinos at 86; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 516; South Australian Asset Management Corporation v York Montague Ltd (1997) AC 191 at 213). As Professor Stapleton convincingly shows ("Perspectives on Causation" in Horder (ed), Oxford Essays in Jurisprudence 61), this is a normative choice of a theory of individual responsibility. The learned author's distinction runs counter to the choice in the law's rejection of an inflexible "but for" test in that respect, and an accident is one of life's misfortunes equally with illness; further, impossible questions of causation would arise as to both subsequent accident and illness occurring in the world as modified by the first accident. 44 In my opinion, if it was fact rather than contingency that the respondent's earning capacity as a miner would wholly or partially have been lost from the independent event of the car accident, that was to be taken into account in arriving at his damages. It is not necessary to decide whether Baker v Willoughby is good law so far as it stands for a different result where the later independent event is tortious. No doubt strict logic does not fully govern the assessment of damages, for example as to the "but for" test; see also the differing views as to the contingency of remarriage in De Sales v Ingrili (2002) 212 CLR 338. It may be that Baker v Willoughby can be justified on the rationale of ensuring that the victim of successive tortious injuries receives full compensation, although it is not easy to see why that should be at the expense of the first tortfeasor. I am not sure it was established that the respondent was entitled to workers compensation with respect to the car accident, but even if it was there is no reason in policy for the appellant to pay more in damages because of a happenstance such as that the respondent was driving home from work at the time of the accident. So far as Baker v Willoughby rested on the workers compensation case of Harwood v Wyken Colliery Co (1913) 2 KB 158, the reliance was held to be misplaced in Jobling v Associated Dairies Ltd, and I do not think the rationale is enlivened. 45 In Godden v Metropolitan Meat Industry Board (1972) 2 NSWLR 183 it was said (at 191) that the conclusion in Faulkner v Keffalinos did not "support a view of the law consistent with that expressed by Windeyer J", and that the damages of $20,000 despite later injuries which "in effect swamped any effect that the earlier injuries might have continued to have" were an application of "a principle the same or akin to that which was enunciated by the House of Lords in Baker v Willoughby". These observations were obiter. In Faulkner v Keffalinos none of Barwick CJ, McTiernan J and Menzies J expressly referred to the plaintiff's later accident. Gibbs J referred to it, and regarded it as a contingency which had become the fact; his Honour's view of the law was congruent with that of Windeyer J. It is not clear whether the plaintiff's later injuries were regarded as tortious, and the decision was prior to Jobling v Associated Dairies Ltd; the $20,000 is explicable if it was not thought that the later injuries wholly swamped the effect of the earlier injuries. The observations in Godden v Metropolitan Meat Industry Board were also prior to Jobling v Associated Dairies Ltd. I consider that the reasoning of Windeyer J can properly be followed. 46 As I have said, the judge made no finding as to the comparative effects of the mining accident and the car accident on the respondent's earning capacity. I do not think that this was because he implicitly found that the neck and shoulder injuries did not overlap with the back injury as causes of the respondent's overall loss of earning capacity: indeed, he appears to have recognised overlap in saying at one point that the back injury and the neck and shoulder injuries both "contribute significantly to [the respondent's] mental and physical condition". The effect of the neck and shoulder injuries in independently precluding work as a miner was plainly a matter for consideration, and with due recognition of the advantages of hindsight and of reading the appellant's submissions to the judge in cold print, it was presented for consideration. Either because it was not fully appreciated at the time or because it was overlooked, it was not dealt with. 47 It may be that the respondent's loss of earning capacity from the mining accident was not wholly overtaken by the loss of earning capacity from the car accident. But that is not an answer to the appellant's submissions. Even if there were some ongoing effect of the back injury on earning capacity, it was necessary to consider whether the neck and shoulder injuries would have incapacitated the respondent from working as a miner. If they would have, continuing economic loss assessed on the basis that he could work as a miner should not have been awarded. The contingency of the car accident was known as a fact at the time of the hearing, and account had to be taken of it. In not doing so the judge was in error, and his award of damages for economic loss can not stand. Reassessment 48 Both the appellant and the respondent invited this Court to undertake a reassessment rather than order a new trial. I see no point in ordering a new trial, since the parties had the opportunity to put such evidence as they desired before the court and it was not suggested that there were now live issues of credit or impression. 49 As I have indicated, the appellant said that it followed inevitably from mining work being physically hard and requiring work at or above shoulder level, and from the respondent's incapacity to work for Kidman & Co or even in bar work, that the injury in the car accident would have incapacitated the respondent from working as a miner. The judge clearly attributed the respondent's incapacity to carry out the lighter work for Kidman & Co to his neck and shoulder injury. If he had asked himself whether the neck and shoulder injury would independently have incapacitated the respondent from working as a miner, I consider he would have so found: I would so find. 50 The key question, then, is the extent of the effect of the injury in the car accident on the respondent's earning capacity on the assumption that his earning capacity had not been diminished as a result of the mining accident; put another way, whether the neck and shoulder injuries would have brought the same diminution in earning capacity as was brought by the back injury. We were not referred to the numerous medical and associated reports in evidence nor, other than in the most general terms, were submissions put to us to assist in the reassessment. The respondent suggested a minor reduction in the wage difference of $231.68 used by the judge. The appellant suggested a "cushion". 51 My reading of the medical reports provides no real assistance in addressing the key question. The report of Dr Middleton, a rehabilitation specialist, stated that "as a result of the effects of the various injuries" the respondent was unfit for work or other activities "involving heavy or repetitive lifting, prolonged repetitive bending, twisting or other movements, jarring, vibration or prolonged unrelieved static posturing of his head, neck, trunk, upper or lower limb girdle structures". It did not distinguish between the injuries, but this suggests that the neck and shoulder injuries would independently have had a profound effect on the work the respondent could do. Unaided by evidence, it is not easy to arrive at the independent effect of the injury in the car accident, or to determine whether the neck and shoulder injuries would have brought the same diminution in earning capacity as was brought by the back injury. The Court must do its best on such evidence as there is (State of New South Wales v Moss (2000) 54 NSWLR 536 at 554, 559 and cases referred to), and where the respondent was unskilled an injury sufficient to prevent him from working as a machine operator would be likely significantly to restrict his employability. 52 In Watts v Rake it was said that, where the plaintiff's pre-accident condition might eventually have led to a similar disability to that resulting from the accident, it was for the defendant to disentangle from the plaintiff's disabilities those which were not his responsibility. The same can be said where a later accident might have led to a similar disability (see Western Australia v Watson (1990) WAR 248 at 311). However, it was made clear in Purkess v Crittenden that the defendant's burden was evidentiary only, and arose because the plaintiff could rely on a factual inference from the change in his capacity. In the present case the car accident had a significant effect on the respondent's earning capacity. A factual inference in the respondent's favour from the change in his earning capacity as a result of the mining accident is effectively unavailable, and any factual inference may well be unfavourable to him. 53 In my opinion, a broadly assessed lump sum must be struck to allow for any loss of earning capacity in the mining accident which would not have been lost in the car accident. I make no pretence of calculation. I consider that the respondent should have damages for economic loss of $50,000, inclusive of superannuation, in addition to the $49,493.00 plus superannuation. Orders 54 There is no occasion to disturb the costs order made at the trial. I propose the orders - 1. Appeal allowed. 2. Set aside the verdict and judgment for $404,452.59 and in lieu thereof verdict and judgment for $227,408.76 taking effect on 25 March 2003. 3. Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified. 55 SANTOW JA: I agree with Giles JA. 56 WINDEYER J: I agree with Giles JA. ********** Last Modified: 05/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.