Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mungekar v Hermes Precisa Pty Ltd [2013] NSWCA 225 Hearing dates: 19 April 2013 Decision date: 19 July 2013 Before: Meagher JA at [1]; Tobias AJA at [19]; Simpson J at [20] Decision: (i) Appeal allowed; (ii) Set aside the orders of the District Court (Hungerford DCJ) made on 10 February 2012; (iii) Judgment for the appellant in the sum of $309,196.33, such judgment to take effect on 10 February 2012; (iv) Respondent to pay the appellant's costs of the trial and of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - torts - negligence - personal injury - workplace accident - appellant injured by lifting heavy metal plate - whether appellant contributorily negligent - whether appellant had knowledge of risks involved in lifting plate - whether trial judge erred by placing too much weight upon prior injury - system of work - whether trial judge erred in findings with respect to economic loss - whether appellant fit for pre-injury occupation - whether trial judge erred in findings with respect to domestic assistance Legislation Cited: Civil Liability Act 2002 Workers Compensation Act 1987 Cases Cited: Fox v Wood [1981] HCA 41; 148 CLR 438 Graham v Baker [1961] HCA 48; 106 CLR 340 Husher v Husher [1999] HCA 47; 197 CLR 138 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 Pennington v Norris [1956] HCA 26; 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 Category: Principal judgment Parties: Sanjay Mungekar (Appellant) Hermes Precisa Pty Ltd (Respondent) Representation: Counsel: S Norton SC/M Daley (Appellant) M L Williams SC/S E Torrington (Respondent) Solicitors: Brydens Law Office (Appellant) Lee & Lyons (Respondent) File Number(s): 2012/61790 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-02-10 00:00:00 Before: Hungerford ADCJ File Number(s): 2009/337186 Judgment 1MEAGHER JA: I have had the benefit of reading the reasons of Simpson J in draft. These reasons should be read in the light of her Honour's judgment. I agree with her Honour's conclusion that the primary judge erred in finding that there was contributory negligence and in apportioning responsibility for the appellant's injury to him as to one-third. 2The weighing platform regularly became dislodged and the respondent's system of work permitted employees, and it was their observable practice, to manually reposition the weighing platform when it did so. That practice developed in part in response to "the fast pace of the work and the need to avoid delays" which was part of that system of work: [77]. The appellant was never instructed not to attempt to reposition the platform manually in accordance with that work practice. 3Any error of judgment which the appellant made in moving the platform manually was one which the respondent's system of work permitted him to make. The appellant's evidence was that he considered the plate was "not that much heavy", that he understood that he had to be careful about lifting and that he knew that he should not attempt to lift the platform if he had any doubt as to whether it was safe to do so (Black 62). It was not put to him in cross-examination that on this particular occasion he had such a doubt or knew that it was unsafe to attempt to lift the platform. In these circumstances it was not established that the appellant acted without reasonable care for his own safety so as to justify a conclusion that he was in part responsible for the injury which he suffered: cf Pennington v Norris [1956] HCA 26; 96 CLR 10 at 16. 4I also agree with Simpson J that the primary judge erred in his assessment of past and future economic loss. The accident happened in October 2006. At that time the appellant was working as a forklift driver. In October 2007 he obtained a taxi driver's licence and in November 2007 he commenced working as an employed taxi driver. There were periods of time after that date when he did not work because of the surgery which he had to his right shoulder. From November 2009, the appellant has leased a taxi which provided services to disabled passengers. He continues to operate that taxi six days a week for shifts of up to ten hours a day. 5The primary judge awarded the appellant damages for past economic loss for the period from October 2006 to May 2009. He held that by May 2009 the appellant was able to resume his pre-accident work as a forklift driver if he had chosen to do so (at [90], [100], [102]). For that reason, he concluded that there was no continuing diminution in his earning capacity which was or may be productive of financial loss. 6That finding was not justified or supported by the evidence of Associate Professor Oakeshott (on which the primary judge expressly relied at [90]) or the evidence of Dr Smith. For that reason, the conclusion that the appellant suffered no continuing diminution of his earning capacity after May 2009 was not justified. 7That makes it necessary to assess the appellant's claim for economic loss from that point in time to the date of judgment and thereafter. 8It was common ground that from November 2009 the appellant could work as a driver of taxis for the disabled, although on the evidence it appears that he does so with some difficulty. Those duties involve significant heavy lifting during shifts which extend ten hours a day and for six days a week. That lifting occurs in the loading and unloading of wheelchair bound disabled passengers and the carrying or moving of their luggage; and appears to be an irregular rather than continuous activity associated with that occupation. 9The appellant's claim to damages for diminution of his earning capacity was formulated by reference to a comparison between his earnings assuming he had continued as a forklift driver and his actual earnings as a taxi driver; the assumption being that the accident had the consequence that he could no longer work as a forklift driver but could work as a taxi driver. The difference between the incomes generated by those employments was relied upon as indicating the extent of the appellant's financial loss resulting from his diminished earning capacity: see Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566; Graham v Baker [1961] HCA 48; 106 CLR 340 at 346-347; and Husher v Husher [1999] HCA 47; 197 CLR 138 at [7]. 10Before the primary judge it was agreed that the appellant was earning $550 net per week at the time of the accident. The evidence also established that for the financial years ended 30 June 2010 and 30 June 2011 the appellant's net taxable income as a taxi driver was between $10,000 and $14,000. The accuracy of those returns as a record of the appellant's total income for these periods was challenged in cross-examination. However, the appellant said that those returns declared all of the income that he had received and that answer was accepted and not challenged. That being the position, there is no good reason why that evidence should not be accepted. 11The appellant's claim for past economic loss was for 262 weeks at $550 net per week less actual earnings during that period of $30,820. The primary judge awarded the appellant damages of only $39,600. That amount excluded any allowance for superannuation and was for the period to May 2009, being 72 weeks at $550 net per week: at [101]. The appellant submits that the primary judge should also have awarded damages for past loss for the period from May 2009 to the date of the hearing. He claims $144,100 (262 weeks at $550 net per week) less actual earnings of $30,820. The appellant also claims $291,380 for future economic loss, being $500 net per week for a period of 21 years (to age 65) less 15 per cent for contingencies. 12Each of these claims is made on the basis that the economic consequences of the appellant's lost earning capacity are to be assessed on the assumption that he could no longer work as a forklift driver but was able to fully exercise his diminished earning capacity as a taxi driver. 13The appellant gave evidence that he could not do "any form of manual physically demanding work on an employed basis". That evidence was, to some extent, contradicted by his evidence as to what he was required to do in loading and unloading disabled passengers and their luggage on a daily basis. However, it was never squarely put to him that he could return to work as a forklift driver, but had chosen not to do so. Nor was it put to him that there were other activities which he could undertake which would generate greater income than was apparently being generated from his taxi driving. The appellant also gave evidence that his treating orthopaedic surgeon, Dr Maniam, "ruled out" any more forklift driving. That evidence did not, however, indicate what assumptions Dr Maniam may have made as to what activities forklift driving involved or required. 14The medical evidence also did not assist in establishing that the appellant's loss of earning capacity was best assessed by reference to that underlying assumption. Dr Maniam, in his report dated 29 April 2010, assumed that the appellant was driving a taxi "for limited hours" and that he avoided "lifting heavy loads". On that basis he opined that "there has been a significant loss of earning capacity". Dr Ellis, in his report of 28 November 2007, expressed the view that the appellant was "permanently unfit now for physically demanding work requiring forceful and repetitive use of his right arm". That opinion, given two years before the appellant commenced driving a taxi for the disabled, does not take account of the physically demanding work subsequently undertaken by the appellant. Dr Ellis's subsequent three page report of 16 July 2008 does not advance the matter any further. He expresses the opinion that "it is unlikely that [the appellant] will be able to return to work in which he has been previously employed in physically demanding work in the future". That opinion is in general terms and does not take account of the appellant's later employment. 15Dr Bodel produced three reports. His last, dated 10 May 2011, records that the appellant is driving a taxi "3 or 4 days a week up to a 12-hour shift each day" and expresses the view that he "will struggle with any heavy physical manual work". That opinion does not accurately assume the extent of the work being undertaken by the appellant at that time. Nor does it engage with the nature of that work and the lifting which it involves. Finally, in his report dated 2 September 2009, Dr Sun expressed the view that the appellant was only fit for "selected duties with no lifting over 5kg no forceful pushing or pulling". That opinion also is not consistent with the appellant being fit to undertake the activities which his current occupation seems to require. 16Although this medical evidence does not justify the assumption by reference to which the appellant seeks to have his economic loss assessed, it does establish that he suffered an injury to his right shoulder which has resulted in a reduced range of movement in that shoulder and ongoing pain and discomfort; and that this has made him permanently unfit to undertake employment which would involve heavy and continuing manual work which requires the repeated use of his right arm. 17This being the evidence, how best to assess the appellant's economic loss, in respect of his undoubted diminution of earning capacity, remains problematic. Although at first I was inclined to think otherwise, I agree with Simpson J's reassessment of those claims. The claim to past economic loss is based on the net weekly wage earned whilst the appellant was working in the respondent's premises as a forklift driver. In the absence of the respondent challenging the appellant's evidence that he could not return to work as a forklift driver or his evidence as to the income he was generating from his taxi driving, his past economic loss is justified on the basis claimed together with an allowance for lost superannuation. With respect to the future, a lump sum award should be made taking into account his diminished earning capacity and the likelihood that there will be periods when that capacity is productive of financial loss. The amount assessed by Simpson J takes those uncertainties into account. Finally, I agree with Simpson J's conclusion that the primary judge was correct to reject the appellant's claim for paid domestic assistance. 18For these reasons the orders proposed by Simpson J should be made. 19TOBIAS AJA: I agree with Simpson J. 20SIMPSON J: In proceedings heard in the District Court in November 2011, the appellant claimed against the respondent damages for personal injury sustained by him in a workplace accident on 31 October 2006. He alleged that, although he was not employed by the respondent, the respondent nevertheless owed him a duty of care commensurate with the duty owed by an employer to an employee, and that, in the respects particularised, the respondent breached that duty of care. That the respondent owed the appellant a duty of care as alleged was not in dispute. That it was in breach of that duty was in dispute. The respondent's liability under the claim was governed by the Civil Liability Act 2002. The appellant claimed damages under the following heads: (i) non-economic loss (ii) out of pocket expenses (already incurred) (iii) out of pocket expenses (future) (iv) economic loss (past) (v) economic loss (future) (vi) Fox v Wood [1981] HCA 41; 148 CLR 438 (vii) domestic assistance (future) (viii) superannuation (past) (ix) superannuation (future) 21By judgment delivered on 10 February 2012, Hungerford ADCJ found (within the bounds of the Civil Liability Act) that the appellant had established negligence in the respondent, that the respondent's negligence was a contributory cause of the appellant's injury, and that the appellant was contributorily negligent, to the extent of one-third, for the damage he suffered. Pursuant to s 16 of the Civil Liability Act, he assessed the appellant's injuries at 25 per cent of a most extreme case. He quantified damages as follows: $ non-economic loss 33,800.00 out of pocket expenses (past) 25,696.42 out of pocket expenses (future) 8,864.31 Fox v Wood 4,095.60 economic loss (past) 39,600.00 superannuation (past) 4,356.00 He declined to award any damages in respect of future economic loss, having concluded that, from May 2009 and continuing, the appellant was and is medically fit to undertake his pre-injury duties. Accordingly, he also declined to make any award in respect of the loss of superannuation benefits for the future, or domestic assistance for the future. 22After deducting one-third, referable to his finding of the appellant's contributory negligence, and then adjusting as required by s 151Z(2) of the Workers Compensation Act 1987, he awarded the appellant damages in the sum of $68,493.46. 23The respondent has not appealed against the finding of negligence. The appellant appeals in respect of the quantification of damages. The specific bases of the appeal are: * the assessment of contributory negligence at one-third; * the quantification of damages awarded in respect of past economic loss; * the assessment of future economic loss at zero; * the award of damages in respect of superannuation (consequent upon the finding in respect of past and future economic loss); * the failure to award any damages in respect of future domestic assistance. Background 24The appellant was born in India in 1965. He there completed his schooling, and commenced a university degree in commerce, which he only partly completed. In May 2003, at the age of 37, he migrated to Australia. He quickly obtained employment, initially in a pizza shop, and then with a company called Sonoco, where he was employed from June 2003 until 2005. During that time he obtained a licence to operate a forklift. In about March 2005, he took up employment as a forklift driver with a company identified in the evidence only as "Webstar", where he remained for about a year. He married in 2005, and a son was born in 2006. Also in 2006, he commenced employment with a labour hire firm called Westaff Pty Ltd. In September, Westaff assigned him to work at the respondent's premises at Matraville as a forklift driver. There the respondent operated a bulk mail processing centre for Australia Post. Among the appellant's tasks was the use of a forklift to place metal cages containing bags of mail on a weighing platform. 25It was in the course of this employment that he suffered injury. The accident of 31 October 2006 26The appellant had been employed in this occupation for about 15 days as at 31 October 2006. On that day he was performing his duties, placing the bags of mail on the weighing platform. The metal base of the platform became dislodged, rendering the machine unfunctional. The appellant alighted from the forklift and attempted manually to reposition the metal plate. The platform weighed about 100 kgs. As he attempted to reposition the plate, the appellant felt pain in his right shoulder. It was late in his shift and he ceased work and went home, thinking that the pain would resolve. It did not. The appellant consulted his general practitioner Dr Virk on 19 November, who referred him for x-rays and physiotherapy. Dr Virk referred the appellant to an orthopaedic surgeon, Dr Dave, who saw him once only, on 13 December 2006. Thereafter, Dr Virk referred the appellant to a different orthopaedic surgeon, Dr Vijay Maniam, who has treated the appellant since March 2007. In September 2007 the appellant began to develop pain in the left shoulder, which was attributed by Dr Maniam to overuse consequent upon the appellant's pain in the right shoulder. On 16 December 2008 Dr Maniam performed surgery on the right shoulder, which was followed by a program of rehabilitation. 27The appellant did not return to the employment at the respondent's plant. Until January 2007 he was in receipt of WorkCover benefits. From 25 January 2007 he was assigned by Westaff to part-time clerical work in its own office in Parramatta. This the appellant did for four hours per day, four days a week. 28In July 2007 the appellant commenced a taxi driving course and in October he obtained a taxi driver's licence. From November 2007 he worked as an employed taxi driver. Although he worked 12 hour shifts, five days per week, he took regular rest breaks during that time. In 2009 he undertook and completed a disability taxi driving course and leased a taxi plate and taxi and became a self-employed driver of a disability taxi. 29The facts as outlined above are uncontroversial. The evidence Breach of duty 30There was a conflict in the evidence concerning the nature of the working conditions in the plant. The appellant's evidence was to the effect that he had frequently seen the weighing platform dislodged. He had observed other employees repositioning it manually. As a general practice, supervisors applied pressure to those working in the facility to work quickly, and it was for this reason that he decided to follow the practice of other employees and re-align the plate by himself, manually. 31The appellant's evidence was supported in two relevant respects by Mr Sunny Kharbanda who had also been assigned by Westaff to work at the respondent's premises, at a time shortly before the appellant. Mr Kharbanda said that the steel plate was a major problem; it repeatedly became dislodged and he himself had reported it many times to the supervisor, but with no result. He agreed with the appellant that pressure was applied to staff to perform work quickly, to the extent that he missed his rostered breaks. Other forklift drivers (employees of the respondent) also applied pressure to casual staff, such as himself and the appellant. Mr Kharbanda said that the pressure and the need to reposition the plate was such as to make him concerned for his safety. 32Both the appellant and Mr Kharbanda were cross-examined to the effect that no such pressure had been applied, and that their evidence concerning the regular dislodgment of the plate was incorrect. 33In the respondent's case, Mr Norik Sarkissian was called. In 2006, Mr Sarkissian was in a supervisory position in the respondent's Matraville premises. He had been employed by the respondent (or its successor, "Salmat") for 25 years. He said that the platform had been in use for 15 to 20 years, and that he had never seen it dislodged. Nor had he ever seen staff members attempting to lift or move the steel plate. 34Mr Sarkissian denied that pressure was applied to staff to work quickly. He said that the accident occurred early in the morning at a time when operations were "pretty slow". (The appellant's evidence was that the accident occurred shortly before his shift was due to finish at 3pm.) 35In cross-examination it was put to Mr Sarkissian that his evidence that he had never seen the metal plate dislodged was untruthful. He maintained his original position. He denied that the pace of work in the plant was "flat out", and that forklift drivers who did not work quickly enough were "complained to and shouted at". He did, however, agree that there were complaints from time to time about drivers being unavailable at the time trucks arrived to take away the loaded and weighed cages of mail. 36No other workers, employees, or supervisors were called to give evidence on behalf of the respondent. Mr Sarkissian explained the absence of one former supervisor by saying that he had moved to live in Thailand some years previously. The respondent did not otherwise explain its failure to call any other supporting witnesses. 37The evidence concerning work practices in the plant was primarily relevant to the allegation of breach of duty on the part of the respondent, about which there is no current issue. It was, however, also relevant to the question of contributory negligence. In relation to contributory negligence, the appellant was cross-examined to the effect that he was aware of the risks involved in lifting heavy objects. He agreed that when he commenced employment with Westaff he had been given some training about lifting, and was instructed "if in doubt don't lift". He denied that he had been given similar instructions at the respondent's premises. His evidence included: "They just give me the key of the forklift, first they ask me whether you have a forklift ticket, I said yes and then the work started, they just asked me to put the cages in the weighing platform, bring them down and gradually as the work comes they keep on telling me do this do that that way, it was not a proper induction of work at all." He also said: "The workload of the factory is for two or three forklift operator and suddenly an employee who becomes sick and they gave the - the job. The floor manager himself was all the time busy, there was no such other person who can assist me or guide me what to do, I was totally new in that - that environment, a lot of pressure on us surrounding on me, a lot of people pressurising me to get the job done as quickly as I can, that was the situation. First, there was no proper training or induction that this is the proper way you have to put it there, after this you have to take the cages over there, then you have to put them - labelling and all those things. These things was not properly explained to me at all." 38I also note the following questions and answers set out as recorded in the transcript: "Q. You knew you shouldn't have done that lift, isn't that right? A. After the incidents I realised that I shouldn't have done it. Q. Before the incident you knew you shouldn't have done it, isn't that right? A. Yes. Q. And that was based on the training, the knowledge and the experience you'd had in relation to lifting, correct? A. Yes. Q. And if you had been asked by an employer should you have done that, your answer would have been no, I shouldn't have, correct? A. Yes." (italics added) 39The appellant was also cross-examined about what was said to have been an injury caused by lifting in his previous employment, at Webstar. The transcript records the following questions and answers: "Q. And in December 2005 you had an injury when you were lifting a log, isn't that right? A. It was not an injury, maybe a slight back pain or something like that. Q. It was a muscular strain to your back, wasn't it? A. Yes. Q. The employer had a talk to you about lifting at that time, didn't they? A. Yeah. Q. And they told you to be careful about lifting, didn't they? A. Yes. Q. And the reason they told you to be careful about lifting was because you could hurt yourself, correct? A. Yeah, yes. Q. So that before you started with Westaff, you knew about dangers in lifting, didn't you? A. Yes. Q. And the reason you knew is because you'd hurt yourself, correct? A. Yes." 40In the respondent's case, an "Employer's Report of Injury" (Webstar to its insurance company) concerning the "injury" referred to in these questions was tendered. The report contained, as "Injury Details", the following: "Worker was lifting a log and about half an hour later felt cramping in his back" The "injury" was recorded as "Back - muscular spasm". The employee who completed the form also recorded: "Although claim appears genuine, worker had been told by supervisor not to lift logs. He will be told again that he should not do this." The appellant's evidence with respect to the consequences of the injury 41The appellant gave evidence that, after the injury, he went home in pain, and took painkillers. When he was still in pain the next day he advised the Westaff supervisor that he was not able to attend work. He remained at home, he said, "for a couple of days", taking painkillers, before consulting Dr Virk. (In fact, it was not until 19 days later that Dr Virk first recorded his attendance.) For six months he had physiotherapy three days per week. The pain continued, and affected his daily living activities, including sleeping. It continued until he had surgery in December 2008, when he spent two days in hospital. He continued to have physiotherapy. At the time of trial, he said, the symptoms in the right shoulder and arm were becoming worse. 42His taxi driving duties caused him pain, especially loading and unloading wheelchair-bound passengers. His wheelchair taxi has manually operated ramps. He works 12 hour shifts, but with substantial breaks, which affects his income earning capacity. 43He suffers from some depression. 44He said that he was unable to perform household tasks he had previously performed, such as cooking, vacuuming, and looking after and playing with his child. Previously, he said, he had spent six to seven hours per day in domestic household tasks. The medical evidence 45Reports were provided on behalf of the appellant by Dr Virk, Dr Dave, Dr Maniam, Dr Max Ellis and Dr James Bodel (both orthopaedic surgeons) and Dr Clive Sun (a rehabilitation specialist). Of these, only Dr Sun gave oral evidence. 46On behalf of the respondent, medical reports were provided by Dr Anthony Smith (an orthopaedic surgeon) and Associate Professor Oakeshott (a consultant surgeon). Neither was called to give oral evidence. 47In his judgment, Hungerford ADCJ described the medical evidence as "sharply conflicted". The issues as to which medical conflict emerged were predominantly three - the nature and extent of the appellant's injury, the degree (if any) of continuing disability it caused, and the causal connection (if any) between the injury to the right shoulder and the subsequent problems the plaintiff experienced with his left shoulder. 48Dr Dave, who saw the appellant once only, at a very early stage, and referred him for physiotherapy, then considered that surgery was not indicated, that the appellant was fit to continue working "at least doing selected duties" and that he would possibly be fit to return to pre-injury duties after six weeks. Dr Dave diagnosed "grade 2 dislocation of acromio-clavicular joint", and recognised the possibility of weakness with respect to some activities and of the development of osteoarthritis that would require stabilisation and excision of the outer end of the clavicle. (He did not comment on the left shoulder issue, which had not, at that early stage, emerged.) 49Dr Maniam took over the orthopaedic treatment of the appellant from Dr Dave in March 2007. He made a similar diagnosis to that of Dr Dave. On 16 December 2008 he performed the surgery mentioned above. In a report dated 29 April 2010, under the heading "Diagnosis", he reported: "The diagnoses for this man's problems are: 1. The primary injury related to the right shoulder as a consequence of the nature and conditions of his work. He developed an impingement and severe subacromial bursitis. 2. Due to overuse and favouring the right side he also developed a similar condition on the left. Investigations are being awaited. It is likely that he may have to submit to a further operation to the left side." (italics added) Later in the report, he said: "However, due to over reliance on the left he gradually started experiencing an increasing amount of pain on that side. The current situation is that of a gradual improvement on the right and a deterioration on the left." (italics added) Under the heading "Prognosis", he wrote: "It is likely that some pain and stiffness will remain in relation to each shoulder. There will be constraints for heavy manual work. Fortunately, he has opted to work in a suitable position avoiding manoeuvres that would aggravate the symptoms in the shoulders. To this end he drives a taxi for limited hours and takes frequent breaks and also avoids lifting heavy loads. He is well motivated and I have encouraged him to continue with this job. Despite his attempts to return to normalcy, I envisage frequent absenteeism from his work. As to whether he will be able to return to full time is in question. Overall, there had been a significant loss of earning capacity. His working life will be curtailed somewhat on the longer term." (italics added) Taking into account both the right and left shoulder conditions, he assessed total whole person impairment at 16 per cent. 50Dr Maniam considered that the appellant required four hours per week of domestic assistance for "shopping, scrubbing, washing and maintenance work". 51Dr Ellis examined the appellant on 28 November 2007 for medico-legal purposes. He reported: "Radiological investigation has confirmed the subluxation due to ligamentous rupture at the acromioclavicular joint and damage to the capsule of the shoulder joint with subacromial bursitis and a probable tear of the glenoid labrum. ... He is permanently unfit now for physically demanding work requiring forceful and repetitive use of his right arm, the dominant one. Continued medical supervision and conservative treatment for pain relief will be required ... Surgical intervention on the right shoulder I think will become necessary ..." (italics added) 52In a separate report of the same date he assessed the appellant's impairment, in accordance with WorkCover guidelines, with respect to the right shoulder injury, as 22 per cent. He did not anticipate any further improvement. 53He repeated this assessment in a subsequent report dated 16 July 2008. He repeated that it was unlikely that the appellant would be able to return to his pre-injury employment or physically demanding work. 54Dr Bodel, who reported three times, on 22 September 2009, 24 August 2010 and 11 May 2011, agreed that the appellant had "ongoing disability with pain and stiffness in both shoulders" and that the appellant: "... has not been able to return to his pre-injury stores and forklift driving work." In his final report, he said that the appellant: "... is working as a taxi driver and he should be able to continue this indefinitely. He will struggle with any heavy physical manual work because of his ongoing pathology in the shoulders and the hands." He considered that the appellant required domestic assistance for household maintenance and clearing for three hours per week, as a direct result of his injury. 55Dr Sun reported on 2 September 2009. He said: "Functionally the injury has resulted in persistent symptoms with poor lifting, dropping of objects, weakness, poor sleep, difficulty showering, dressing, shopping, vacuuming, driving, table tennis, cricket, swimming and carrying his child. There was no pre-existing injury or condition to account for his condition. ... It is likely that he will continue to suffer neck and bilateral shoulder symptoms affecting his daily activities. ... He is fit for selected duties with no lifting over 5kg, no forceful pushing or pulling, no sustained work above shoulder level, no repetitive twisting or bending and change posture every 30 minutes. Provided suitable duties and workstation are available he may be able to manage 30 hours a week." (italics added) He assessed, by reference to both the right and the left shoulder, whole person impairment of 23 per cent. 56Dr Smith examined the appellant on behalf of the respondent on 19 July 2010 and reported the same day, and again, in May 2011 and June 2011. In his 2010 report he observed that clinical examination demonstrated the appellant to be "in no distress". He wrote: "It is possible he could aggravate degenerative change that may be present in his acromioclavicular (AC) joint, but there was no subluxation of the AC joint." In his diagnosis, he considered that: "... in all probability, [the appellant] suffered an aggravation to cervical degenerative disease. He would most likely have that." He thought the appellant's symptoms were consistent with a neck injury. He then wrote: "It is conceivable he may have not had such problems prior to the accident, so once it became symptomatic he will notice recurrent symptoms from activities of daily living. There was no shoulder injury. There was no indication to perform surgery on his shoulder. If he has had an acromioplasty that would not and has not done him any harm. He is manufacturing a restriction in shoulder movement and he is manufacturing weakness in both upper limbs. ... I believe he has substantially recovered. It would be difficult for him to do his current job if he had not." (italics added) He accordingly assessed the appellant's whole person impairment at zero. 57In his 16 May 2011 report, Dr Smith adhered to the views previously expressed and wrote: "He continues to manufacture physical signs. There is no injury to the left shoulder and the left shoulder would not be injured by taxi driving." He maintained that the appellant suffered: "... no assessable impairment regarding either shoulder ..." In the June 2011 report Dr Smith confirmed his previously expressed opinions. 58Associate Professor Oakeshott saw the appellant on 25 August 2011. He reported: "Investigations of his right shoulder region confirm the subluxation/dislocation of the right acromioclavicular joint and soft tissue injuries to the region of the right shoulder. ... Objective clinical examination of this right shoulder today reveals a stable shoulder joint with a reduced range of movement. I could not identify any objective evidence of any pre-existing condition in his right shoulder that was aggravated, accelerated or exacerbated in the accident on 31 October 2006. It is my opinion that Mr Mungekar has achieved maximum medical improvement in regard to his right shoulder injury. Furthermore, it is my opinion that his present right shoulder condition does not require any domestic or handyman assistance. As far as his work ability is concerned, I consider that he can continue working as a taxi driver indefinitely and until his retirement age is reached." (italics added) He assessed the appellant as having a 19 per cent upper extremity impairment of his right arm as a result of the right shoulder injury, with a whole person impairment of 11 per cent. 59Associate Professor Oakeshott disagreed with Dr Maniam's opinion that the appellant's left shoulder problem was associated with, and a result of, the right shoulder work injury. He wrote: "I do not agree with the assumption that his left shoulder symptoms are related to 'overuse'. I am unaware of any publication in the refereed medical literature to support this claim. In my clinical experience, I have never seen a patient with an injured/amputated/paralysed arm who has developed symptoms in the uninjured shoulder/arm due to 'overuse'. To claim such an association, in my opinion, engages in the 'fallacy of association being causal' ... It is my opinion that the condition of his left shoulder relates to constitutional changes which include possible degenerative changes. Furthermore, it is my opinion that his left shoulder symptoms would have occurred whether or not the injury to his right shoulder had occurred as described above." (italics in original) He later repeated that the pain in the appellant's left shoulder was not in any way related to the right shoulder workplace injury. Nevertheless, he assessed the whole person impairment resulting from the left shoulder condition at 7 per cent. The trial judge's conclusions 60It is clear that, in some respects at least, the judge took an adverse view of the appellant's credibility. For example, he said: "83. The inference may be drawn from the [appellant's] own evidence that he had no physical problems before the subject injury to his right shoulder. However, the lifting incident in December 2005 causing a back injury makes one at least suspicious of the real position. As that was not pursued in the case nothing may be concluded from it other than, perhaps, the [appellant's] clear reluctance to acknowledge that it occurred. Notably also, there was no mention in any of the medical reports that the [appellant] advised that event as part of the history he gave; and that was so even to the extent of the alternative of disclosing it but denying any resultant problem. Thereby, the doctors were unable to consider an earlier condition and its likely effects on the present condition. To me, the course adopted by the [appellant] in this respect shows a studied attempt to focus his present condition on the subject lifting incident and to remove an occurrence which could reduce the effects of it against his case. That course, I think, is consistent too with the exaggeration which I otherwise perceive to exist in the [appellant's] evidence as to his condition from this October 2006 shoulder injury." 61He expressed scepticism concerning some of the evidence given by the appellant with respect to his present capacity to operate a forklift and the view that the appellant's evidence as to incapacity was "highly exaggerated and ... affected by embellishment". (a) negligence of the respondent 62After consideration, Hungerford ADCJ "with some hesitation" accepted the evidence of the appellant and Mr Kharbanda concerning the system of work, in particular that the dislodgement of the metal plate was a not uncommon occurrence, and that there was some pressure on staff to get the job done. Accordingly, he found that the risk to the appellant that eventuated was part of an unsafe system of work. In part, he reached this conclusion because of the (unexplained) absence of any witnesses called on behalf of the respondent to support Mr Sarkissian's evidence. (b) contributory negligence 63The conclusions with respect to contributory negligence are encapsulated in two paragraphs of the judgment, as follows: "80. One may well understand [the submission of senior counsel for the appellant] that [the appellant] was merely following the laid down system of work. However, it seems to me, one should consider the totality of the circumstances in apportioning responsibility for what occurred. It is plain ... that the [appellant] knew of the risks involved in lifting the heavy metal plate by hand and he even accepted that he would not have done so if instructed - but he nevertheless attempted the lift. The earlier December 2005 occasion when he injured his back lifting a log after being told not to do so is some indication of his approach to instructions in the workplace. It may be inferred from his evidence to some degree that he would not have acted in any other way on the subject occasion even if he had been instructed not to life (sic - lift) a dislodged plate on the weighing scale. 81. The [appellant] had the opportunity to forego the attempted lift but knew the risks if he proceed (sic) to do so. I consider his conduct was a real and material cause of his injury. I assess contributory negligence at one-third." (italics added) (c) damages (i) non-economic loss 64As mentioned above, the judge assessed, for the purpose of awarding damages in respect of non-economic loss, the plaintiff's injury at 25 per cent of a most extreme case. There is no challenge by either party to this assessment. In accordance with s 16 of the Civil Liability Act that assessment produced an award of damage for non-economic loss (before deduction for contributory negligence) of $33,800. (ii) economic loss 65The judge concluded that from May 2009 the appellant did not suffer any relevant economic loss that could be causally related to the accident. That was because he further concluded that the appellant was "from at least that date" fit to engage in his pre-injury work of forklift driving, and that, if his current employment as a taxi driver yielded lower income, that was a result of the appellant's own choice, for which the respondent was not to be held accountable [102]. In reaching this conclusion he expressly relied upon the opinions expressed in the reports of Dr Dave, Dr Smith and Associate Professor Oakeshott. He said: "... I accept, and as Associate Professor Oakeshott opined, that the [appellant] has achieved maximum medical improvement and is able to continue working as a taxi driver or even in his pre-accident work as a forklift driver." He also relied on the evidence that the appellant had been able to, and from November 2007 did, drive a taxi for lengthy shifts. 66He gave little, if any, weight to the evidence of Dr Sun, who he considered adopted the role of advocate for the appellant rather than expert witness, and was "not prepared to make any apparently appropriate concessions", and "even then, responded in a guarded but qualified way but directly unresponsive to the question posed". 67He accordingly assessed past economic loss for a closed period of 52 weeks from 31 October 2006 to 1 November 2007, and 20 weeks from 16 December 2008 (the date of surgery) to early May 2009. This resulted in an award of damages for past economic loss of $39,600, together with an appropriate award for lost superannuation referable to that amount. In accordance with his finding concerning the appellant's fitness for forklift driving, he declined to make any award of damages for future economic loss. That means that there is a period of 58 weeks prior to May 2009 in respect of which he made no award. Since that follows a reference to the appellant's taxi-driving, I infer that he considered that, during that time (as well as post May 2009) he was fit for his pre-injury work. (iii) domestic assistance 68The appellant claimed damages for domestic assistance in the future for seven hours per week at $38 per hour. The hourly rate was not challenged; the claim itself was. 69In respect of this claim, the appellant relied on the reports of Dr Maniam and Dr Sun, set out above. 70Hungerford ADCJ rejected this claim "for the reasons given earlier". I take this to mean that, as he found the appellant fit for his pre-injury occupation, he also found no interference with the appellant's capacity to perform his normal household tasks. The appeal 71In substance, the appeal is limited to the findings with respect to contributory negligence, economic loss (both past and future) and domestic assistance (for the future). The award of damages in respect of superannuation flows from the conclusions concerning economic loss. So far as the economic loss component is concerned, the appeal hinges essentially on the conclusion that the appellant was, between November 2007 and May 2008, and from May 2009, fit for his pre-injury occupation of forklift driving. Contributory negligence 72The finding of contributory negligence requires an apportionment involving assessment of the degree of departure from the appropriate standard of care by each party, and the relative importance of the acts of each party in causing the damage. It requires examination of the whole of the conduct of each party: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34 at [10]; 59 ALJR 492; 59 ALR 529. I accept that a trial judge's assessment of contributory negligence is "not lightly to be reviewed": Podrebersek at [8]. 73In my opinion, the approach taken by the trial judge to this question was marked by at least three errors. 74First, there is an inconsistency in the findings contained in para [80], extracted above ([63]). The trial judge said that the appellant "even accepted he would not have [lifted the heavy metal plate by hand] if instructed"; but, immediately after, held that the appellant "would not have acted in any other way on the subject occasion even if he had been instructed not to lif[t] a dislodged plate on the weighing scales". Inconsistent as they are, neither finding can, independently, be sustained. 75The first observation appears to be drawn from the italicised answer in the evidence of the appellant, also extracted above (at [38]). Properly punctuated, in my opinion, the question should have been recorded as: "Q. And if you had been asked by an employer 'should you have done that?', your answer would have been 'no, I shouldn't have', correct?" 76It was this question to which the appellant gave an affirmative answer. So put, the question (and answer) relate to the appellant's perception after the injury; the question was not a hypothetical question about how the appellant would have responded, if asked by the respondent, prior to injury, manually to lift the plate. It was therefore an error to rely on that answer as evidence of the appellant's knowledge of the risks involved in lifting the plate by hand. 77Second, I detect nothing in the evidence of the appellant to found the inference that he would not have acted in any other way even if he had been instructed not to lift a dislodged plate. Although reluctantly, the trial judge accepted the evidence of the appellant and Mr Kharbanda that forklift drivers were under pressure to work at speed. They complied with what was expected of them. That does not permit an inference that the appellant would have disobeyed a specific instruction not to lift the plate. 78Third, the judge placed considerable weight upon what he more than once described as the "injury" to the appellant's back sustained in the 2005 incident when he lifted a log while working at Webstar. I have set out above (at [40]) the relevant content of the employer's report of injury, which demonstrates, clearly, that the description of the incident as an "injury" is an overstatement. The report indicates "cramping" in the appellant's back. It makes it clear that this was a very minor incident indeed. That is consistent with the appellant's oral evidence that he did not suffer an injury, but "maybe a slight back pain or something like that". 79For these reasons, in my opinion, the finding as to contributory negligence was flawed. The issue must be reassessed by this Court. 80On examination of the evidence, there is, in my opinion, no basis for a finding of contributory negligence to any degree. The appellant worked under pressure both from supervisors and from other employees of the respondent to work at a fast pace, and not to hold up the rapid output of the business. He worked in accordance with the culture and practice of the plant. I would allow the appeal in that respect. Economic loss 81The trial judge's findings in respect of economic loss depended upon his acceptance of the opinions of Dr Smith and Associate Professor Oakeshott, and, to some extent, of Dr Dave in preference to those of Dr Maniam and Dr Sun. Dr Dave, as mentioned above, saw the appellant once only, three weeks after the injury. His assessment at that time could have no bearing upon the appellant's subsequent capacity to engage in forklift driving. 82There is also error in the reliance upon the opinions of Dr Smith and Associate Professor Oakeshott. The judge expressly (para [90]) purported to accept an opinion of Associate Professor Oakeshott that the appellant was capable of working in his pre-accident employment, that is, as a forklift operator. Such an opinion is not to be found in the report of Associate Professor Oakeshott. What he said was: "I consider that [the appellant] can continue working as a taxi driver indefinitely and until his retirement age is reached." The appellant's capacity to work as a taxi driver was not in issue. 83Also relevant to this conclusion was the judge's rejection of the evidence of Dr Sun. His reasons for rejection were that Dr Sun took on the role of advocate for the appellant, and answered questions in a "guarded and qualified way" and "directly unresponsive to the question posed". 84It is not possible for this Court to assess the degree to which Dr Sun's evidence was "guarded", but examination of the transcript does not support the findings that his answers were "qualified" or "directly unresponsive". It is of some note that no complaint was made of Dr Sun's manner of giving evidence by experienced counsel who cross-examined, and nor was any submission made to the effect that his evidence was "guarded" or his answers "qualified" or "unresponsive". 85It is difficult to understand how weight could be attached to the opinions of Dr Smith, who was at odds in some respects with all other medical practitioners, including Associate Professor Oakeshott. Alone, Dr Smith found evidence of pre-existing degenerative changes that, he said, were aggravated by the attempt to lift the plate. He found, in contradistinction to all other medical practitioners, no shoulder injury. The foundation for Dr Smith's opinion that the appellant suffered no continuing disability is flawed. Moreover, like Associate Professor Oakeshott, he did not express a view that the appellant was fit to drive a forklift; his opinion was that the appellant could drive a taxi for as long as he wishes. 86There is, in any event, no indication in the reports of either Dr Smith or Associate Professor Oakeshott, that they were aware of, or took into account, the nature of the duties of forklift drivers in general, or a forklift driver in the respondent's business. Given that the appellant was a casual employee, assigned to various work places by his employer, Westaff, the assessment of his capacity for forklift driving could not be confined to the duties he was required to undertake at the respondent's premises. A finding that he was fit for forklift driving necessitated an understanding of the full range of duties and demands associated with that occupation. 87Another factor in the determination with respect to the appellant's earning capacity was the adverse view the judge took of the appellant's credibility. Of course, this is predominantly a matter for the trial judge, and not something with which this Court would readily interfere. But it is of some significance that the assessment was made, in part, in reliance on what the judge perceived as the appellant's evasiveness with respect to the so-called prior injury (see [60] above]. Given that the objective evidence supported the appellant's evidence about this, the credibility finding must be treated with caution. It is hardly surprising, having regard to the minor nature of the event in 2005, that the appellant did not disclose it to medical practitioners who treated or examined him in 2007 and later. 88As a practical matter, it is difficult to see how the findings as to the appellant's work capacity sit with the assessment of his case at 25 per cent of a most extreme case. 89There was no dispute that the appellant could continue to discharge his duties as a disabled taxi driver. He does this with some difficulty. 90The conclusion that the appellant could return to his pre-injury occupation was unsound. It was wrong to base the consideration of his claim for economic loss, both past and future, on that finding. 91The consequence of the above conclusions is that the appellant's claim for damages in respect of past and future economic loss, and domestic assistance, must be reassessed. 92Reassessment of the economic loss claims is no easy task. As was the case with the medical practitioners, this Court has little information as to the nature of the work performed by forklift drivers, compared with the work of drivers of wheelchair-accessible taxis. There is something to be gained from Dr Maniam's report that the appellant would have constraints "for heavy manual work but had opted for work within his capacity". Dr Ellis agreed, saying that the appellant was permanently unfit for physically demanding work requiring forceful and repetitive use of his (dominant) right arm, and that it was unlikely that he would be able to return to the work in which he had previously been employed, that is, in physically demanding work. 93I would accept the evidence, in particular, of the appellant's treating orthopaedic surgeon, Dr Maniam. I see no reason to conclude that the appellant is not fully exercising the earning capacity that he retains. One difficulty with recalculating his loss is that his pre-injury income was not stable, because (presumably) of the casual nature of his work. It was agreed on behalf of the respondent that the appellant's net weekly earnings, during the short time that he worked at the respondent's plant, were $550.00. (The evidence from the income tax returns shows that over the financial year 2005-2006, his average net weekly earnings were $673.95.) 94In my opinion, the claim for a loss of $550.00 net per week was modest, having been calculated only on the appellant's earnings while working at the respondent's premises, which did not accurately represent his earnings over the year. I would allow the sum claimed to the date of hearing (a total of $144,100) less his actual earnings of $30,820, which results in an award of $113,280. 95It was not in issue that the appellant is entitled also to an award of damages reflecting lost superannuation calculated at 11 per cent of the awards made in respect of past economic loss. That calculation yields an amount of $12,460.00. 96Allowance for the future is even more difficult. The appellant claimed a sum calculated upon a continuing net loss of $500.00, reduced by 15 per cent for vicissitudes. That would give a sum of almost $300,000. Having regard to the appellant's current capacity and employment, I am of the view that no reasonable conclusion can be drawn concerning ongoing losses. I do accept that his income earning capacity has been significantly adversely affected, and that there are likely to be, as Dr Maniam said, periods of "absenteeism" or incapacity. I would allow a lump sum by way of buffer against such contingencies. In my opinion that sum should be quantified as $111,000. (That figure includes an amount to represent lost superannuation benefits.) I do not accept that the appellant has made out his claim for damages for paid domestic assistance in the future. The evidence concerning his capacity to perform the work he is now performing is evidence that he is also capable of performing normal domestic tasks. I would make no allowance in that respect. 97The total award of damages would therefore be: $ non-economic loss 33,800.00 out of pocket expenses (past) 25,696.42 out of pocket expenses (future) 8,864.31 Fox v Wood 4,095.60 economic loss (past) 113,280.00 superannuation (past) 12,460.00 economic loss (future, including superannuation) 111,000.00 TOTAL 309,196.33 98I propose the following orders: (i)Appeal allowed; (ii)Set aside the orders of the District Court (Hungerford DCJ) made on 10 February 2012; (iii)Judgment for the appellant in the sum of $309,196.33, such judgment to take effect on 10 February 2012; (iv)Respondent to pay the appellant's costs of the trial and of the appeal. ********** 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. Decision last updated: 19 July 2013