The applicants have leave to amend the statement of claim in the terms of the amended statement of clain already delivered and to make amendments thereto as it may consider necessary in the light of -the comments in the reasons for judgrsent delivered this day concerning

paras. 27 and 27A of the amended statement of claim.

The applicants deliver to the respondents further particulars of each work in which copyright is claimed Stating the nature and extent thereof and the extent to which it was included -in any ROM or other item of equipment comprised in the relevant BBC microcomputer,

The respondents have liberty to apply should = any question arise as to the sufficiency of the particulars delivered by the applicants. Otherwise the respondent's

o eal on i tae]

iy] i bf ise] (] Lad (47) ta}

) (1) » . " MOS 0.1 (iid . , » "8 1.2 (e> so. . " NES 3.34 (d) . . " DES 0.90

Ce) An uncommited logic array to operate a video processor often designated -as SC; <--+-- 7-7

(Cf) An uncommitted Logic array to act as a serial processor often designated as 2C;

Third, Acorn alleges in para 28 that it 15 the equitable

owner or equitable joint owner of copyright in certain

.drawings, sketches and other works referred to in -that

paragraph by virtue of an equitable assignment thereof from

Ihe applicants have filed affidavits purporting to set forth the authorship of the works referred to. It as the contention of the respondents that inferences to be drawn from the contents of the affidavits are that Acorn is not the sole owner of some of the works the subject of para.27, that in respect of some of the works it has ownership only in part

thereof and that part is not identified, and that as to some, if mot all, of such works Acorn's title, if any, arises by

Wath respect to the works referred to im para. 27A of the smended statement of claim it is said that the claim that

copyright therein was acquired by assignment falls to the ground because no written assignment is alleged. In addition

contentions similar to those made with respect to the

It is the contention of the respondents with respect to those works in which Acorn has only joint ownership with a person or persons not parties to the action that such an interest is insufficient to support a cause of action against

And 1t is the contention of the respondents that with

respect to the copyright in any of the works which Acorn Claims by virtue of an assignment there was on 14 August 1984, the date of _commencement of these proceedings, no title whatever in Acorn because the provisions: of -5.196(3)-" of the Copyright. Act 1968 (the Act) were not complied with, there

being at that time no assignment in writing. Section 196(3)

"an assignment of copyright (whether total or partisl) does not have effect unless it 15 in writing signed by or on behalf of the assignor."

This last contention was in the forefront of the attack upon the proposed amended statement of claim. It appears that on 17 September 1984 CPUL executed a deed of assignment to Acorn but Mr. Archibald contended that that factor did not affect the validity of his objection that Acorn had no sufficient title on 14 August 1984 to commence the action. He said that s5.196(3) is unambiguous and rendered the equitable assignment relied on in this case of no effect. The equitable assignment relied on by Acorn, as indicated in para. 27ACh) is alleged to have been effectuated by an agreement or arrangement between CPUL and Acorn under which the whole of the business assets and liabilities of CPUL, excluding certain portions thereof not significant for present purposes, but including all . of its assets and undertakings relating to the developing and production of the BBC microcomputer and the intellectual and industrial property rights relating thereto were transferred to or assumed by Acorn. And it is alleged in

particular in sub-paragraph (j) of para. 274 of the amended

statement of claim that it was at all material times the intention of each of CPUL and Acorn that Acorn would hoid the beneficial interest in any intellectual and industrial property rights arising - cut ef - the development of- -the BBC -

I did not understand Mr. Archibald to contend that apart from the non compliance with the provisions of s.196(3) of the

Act there was not, on the facts alleged, possibly, or

'arguably, equitable ownership in Acorn of every interest which

CPUL had in any relevant copyright in any literary or artistic work. It was the absence of writing which was fatal to the effectiveness of the transaction between CPUL and Acorn as an assignment of interests in the copyright. In support of this contention Mr. Archibald relied, in particular, om the decision of the Court of Appeal in Robam J19 Tool Co. Ltd. and

Elkadort Lid. v.» Taylor, % Ors [£1979] Ch. 130, In that case the plaintiffs sued for infringement of copyright in three groups of drawings identified as S/Rob, RF, and Hf and WN respectively. The plaintiffs' title to copyright having been put in issue particulars were given. From these it appeared that the drawings S/Kob and DB and N had been prepared for the plaintiffs by independent contractors. No other source of title was disclosed. As to the RP drawings it appeared that the same were made by one P when he was a partner of a firm the assets of which were said to have been vested in the first Plaintiff upon its incorporation. The manner of vesting was

not stated. It was alleged that P had made the drawings for

the firm. It was held by Whitford J., the trial judge, that

the claim in respect ef the drawings S/ROB and D and N should be struck out as no title to the copyright therein was shown to exist. He held however, that in relation to the RP drawings, the-: pleading 'should -be allowed -to stand. - He held that a possible inference from what was particularised was, 'that the plaintiffs were and are indeed owners of some beneficial interest in the copyright in the RP drawings even though the pleadings may be defective in the sense that there is insufficient particularity and even though it may be hecessary at some later stage to join the legal owner of the copyright.". The plaintiffs appealed and the defendants

eross appealed. The appeal was dismissed but the cross-appeal

It was held, on appeal, that there being no facts disclosing a written assignment of copyright to the plaintiff ho title was shown. So far as the plaintiffs relied on the assignment of an equitable interest it fsiled because of the provisions of s.53(1)(c) of the Property Law Act 1925 which 1s in lake terms to s.53(1)(c) of the Victorian Property Law Act 1958 and requires that a disposition of an equitable interest "... must be in writing signed by the person

It was said by ctr. Archibald -that. the -ratio decidend:. of the Court of Appeal decision is decisive of the issue in this case so far as the applicants rely on the agreement or arrangement between Acorn and CPUL. Mr. Archibald referred to

the observations of Stamp LJ at p.140 (supra) that there being

no suggestion of any written disposition of the copyright in favour of either of the plaintiffs it -followed that the statement of claim as particularised disclosed no cause of action in respect of any -of -the drawings. :-He referred also to the observations of Ormrod LJ at p.143 (supra) where his Lordship pointed out that the pleadings plainly showed on their face that the plaintiffs were not the authors of any of the drawings and must therefore plead and prove 2 valid assignment or assignments in their favour. And he observed "the combined effect of 5.36 of the Copyright Act 1956 and $.53¢1) (ce) of the Property Law Act 1925 is that in the eircumstances such assignments whether they be of legal interests or equitable interests in such copyrights, must be im writing". The relevant provision in 5.36 of the Copyright Act 1956 15 in the same terms as 5.196(3) of the Act. To my gind the question in this case is not so much whether there is in writing an assignment of copyright, but whether there was in Acorn at the commencement of the proceedings equitable ownership of the relevant copyrights.

It 1s to be noted, that in the Roban Jig Case (supra)

there was in the pleadings or particulars no suggestion that there had been a transaction for value under which it was agreed that the interest of the owner or part owner of the copyright in works was to pass to the plaintiffs and that the agreement was one of which specific performance sight 'have been desired. It would seem that Whitford J. had sensed that

there was such 2a suggestion and it was this that persuaded him

to allow the claim concerning the RP drawings to stand. But

that there was such a suggestion was not accepted on appeal. In this case a transaction of the kind referred to is pleaded. The pleading does not refer to the availability of specific performance, but it does put forward a transaction susceptible of specific performance. It may be, although 1% 15 unnecessary to discuss it in this case that the element of specific enforceability is not essential to the creation of an equitable estate arising from a transaction inter partes: see

Meagher Gummow and Lehane, Equity Doctrines and Remedies 3rd

It is normally the consequence of such a transaction that, value having been given, an equitable interest in the subject thereof arises ain the party giving it: see Central

Trust, and | Safe Deposit Co. v. Sinden £19163 AC 266 at 272;

Fairweather yv._ Fairweather £1944] 69 CLR at 154. In such a ease the equitable interest arises not by way of transfer but by activation in Equity of the conscience of the receiver of the valuable consideration. A trust is created; there is not a transfer or assignment; there is no transmission of an equitable interest. The estate arising from a declaration of trust is appropriately spoken of as the estate created thereby; thus per Gibbs CI in DKLR Holding Co. (No. 2) Pty. Lid... ¥... Commissioner. of. Stamp. Duties. _ (NSW) (1981-82) 149 CLR 491. It is appropriate also tn speak of the faction that by a declaration of trust the declarant "imparts*" to the beneficiary an equitable estate or interest upon which the Stamp, Duties Act 1920 (NSW) operates 3} per Mason J. ain the

last mentioned case at p.457. Where there is no transmission

s.196(3) of the Act is not involved. Similarly where there 15 can enforceable contract to transfer property the equitable interest arising in the proposed transferee is not the product

of a transfer -but an exercise.in creation. - wee

In the claim made in para 274 of the amended statement of claim the applicants rely on the equitable interest which arose from the agreement toa assign the copyright. It appears to me that just as prior to the 1968 Act, which provided for the legal assignment of future copyright, equity would treat an enforceable agreement for value to assign such 3 right as creating an equitable interest capable of sustaining an interlocutory injunction in the absence af the legal owner, and of sustaining a perpetual injunction once the legal owner w3s joined as a party to the proceedings, so equity will treat as the equitable owner, and as a person entitled to commence proceedings for infringement of copyright, 3 person im whom there resides an enforceable right to an assignment of the relevant copyright. This appears to conform to the requirements of justice. It would not be just that a person should infringe a copyright, the right in equity to which had been acquired for value by another party from the owner merely because writing was absent and the legal owner would not become a party to the proceedings. I am therefore not persuaded that the agreement or arrangement as pleaded is not '

such as to confer upon Acorn equitable ownership of the

It 1s to be noted that in the Roban J19__Case (supra)

Lord Justice Stamp accepted the submission that "you may sue relying on the-equitable right to property which you claim has been damaged and get in the legal title afterwards.". But he pointed out that what the plaintiffs were attempting to do in that case was to commence proceedings with no title at all and to sue on a title subsequently acquired: see his Lordship's

In Performing. Rights Society Ltd. v. London Theatre of

Varieties Ltd. [©1924] AC 1, the matter under consideration was

a claim by the equitable owner of a copyright to sue for infringement without joining the legal owner. It was conceded that the equitable owner might be granted an interlocutory injunction but that permanent relief would not be granted in the absence of the legal owner. The equitable interest had arisen by virtue of a written assignment of future copyright. Viscount Finlay pointed out that s.5 of the Copyright Act 1911 authorised an assignment in writing not only of a legal interest in copyright but of any interest whether legal or equitable. And ain that case there was writing. But he said that the established rule of practice should be adhered to, namely, that the owner of the legal estate should be joined as a party. He pointed out that in the case of a refusal of the owner of the legal estate to join as a plaintiff he might be added as defendant "or if for any" reason, all this were. impossible, the action ought to be allowed to proceed without

In this case there is no joinder of the legal owner as

applicant or respondent. But, soon after action brought, Acorn became the owner of the legal estate by written assignment. Assuming that the agreement or arrangement between Acorn and CPUL which is pleaded was sufficient to make Acorn the equitable owner of the relevant copyrights the question is whether the "getting in" of the legal estate by written assignment will relieve the applicants from actually joining as a party the person who was legal owner at the date of action brought but who has since ceased to be so. If the assignment to Acorn of the legal interest in the copyright to it had occurred prior to action brought the legal owner would not have been a proper party to the action. If the legal owner had been joined prior to the assignment of his interest to Acorn his presence in the action would, when the assiqgnment was given, have become unnecessary and embarrassing. It appears to me therefore that at this stage its presence would serve no useful purpose and is umnecessary. Nevertheless, the assignment should be pleaded although it is something that has

With respect to those works in which there was joint authorship in Acorm and some other party, Mr. Archibaid contended that Acorn could not establish a justiciable clain. It was said that if joint authorship creates joint ownership in the true sense, the interest is one out of which one of two joint owners cannot sever his own interest. This, he said, is

a consequence of the nature of the thing in which the

copyrights claimed in this case is said to exist and the definition of a "work of joint authorship" in s.10 of the Act.

Whereas it was conceded that the interest of one joint owner of a copyright is characterised as an interest as a tenant in common, and that one joint owner can sue for

infringement, and for the damage which he has suffered, it was

argued that this is not relevant to the present submission.

For the purposes of this proceeding, at least, I cannot act upon the contention that as a result of the definition mentioned above or otherwise that Acorn cannot make title capable of supporting its claims in the works or parts of the works which were the subject of joint ownership arising out of joint authorship and which were the subject of the agreement or arrangement referred to in para. 27A(h). It was held by Gowans J. in Prior y. Lansdowne Press Pty. Ltd. £1977] VR 65 adopting what was ssid by Copinger and Skone James on Copyright lith Ed. Para. 692 that co-authors hold the copyright as -tenants in common rather than as joint tenants and ain the absence of agreement to the contrary in equal shares. Once the interest is characterised as that of a

tenant in common it is difficult to accept that the interest

of each tenant in the property owned in common cannot be

It was also said by Mr. Archibald that there is no way the work or part of a work in which CPUL or Acorn might have had an interest as joint owner can be meaningfully identified. As andicated below further particulars to resolve this

In the light of the foregoing it is to be noted that, having regard to the contents of the affidavits referred to hereafter, the allegation of legal ownership which is made in paragraph 27 of the amended statement of claim is subject in various respects to the risk that it cannot stand. Once 1t 1s seen that the claim to copyright in respect of the items or some of the items referred to in that paragraph aust, in the absence of a pleading of a valid assignment which passed the legal aiunterest, be established as 3 claim to equitable ownership, presumably by the same route as 1s indicated in para. 27ACh), then para. 27 is insufficient to sustain the

According to the terms of para. 27A equitable ownership of the copyright which according to that paragraph is based on the agreement or arrangement referred to in para. 27ACh) is said to be acquired by an equitable assignment. I do not understand that, in the face of 5.196(3), the agreement or

arrangement, not being in writing, could, as an assignment,

have any effect. But the substance of the plea relates the acquisition of the equitable interest by Acorn to equitable doctrines operating on the transaction for value described in para. 27ACh). It is that process which is referred to as an equitable assignment. For the purposes of the statement of claim whether or not the allegation correctly characterises the process 35 an equitable assignment the basis of the claim of copyright by virtue of the alleged agreement or arrangement

Paras. 27 and 27A refer to the works "included in* parts of the BEC microcomputer described as a3 ROM or uncommitted logic array or file server or otherwise. The particulars under these paragraphs speak as though the works with respect to which copyright 15 claimed are the ROM, the logic srray or the file server themselves. The contents of the affidavits indicate that the works in which copyright is claimed are not these items but items included therein. Clearly, to my mand, precisely identifying the relevant works is necessary. I propose to make san order to that effect and the observations with reference to the particulars under these paragraphs proceed in contemplation of such identification being

provided. As appears in these observations the contents of

the affidavits confirm the necessity for such identification.

With respect to the ROM designated as Basic III which is said to be a work or adaptation of a work made by one Wilson who was at all times employed by Acarn, an affidavit of Wilson filed by the applicants creates a doubt as to whether when Wilson made the work he was the employee not of fAcern but of CPUL. If the latter, the claim of Acorm would depend om there having been an effective assignment of the CPUL's copyright to Acorn. No such assignment is alleged. Until the ambiguity is resolved the respondents are embarrassed. This comment

Mr. Archibald pointed aut also that the terms of the affidavit throw doubt upor the validity of the allegation that the ROM was a work or an adaptation of 3 work. Ali that Wilson says is that the enhancement of a particular source ecode which was his work was utilized in the creation of BASIC III. This question could be

resolved by adequate identification of the work in which

Wath respect to the ROM designated as DFS 1.2 said to be a work made or partly made by one Tyson, as an employee of Acorn, the inference to be drawn from Tyson's affidavit is that when Tyson made or partly made the work it was done by him or some other person as an

employee of CPUL. The question of assignment arises.

It was said also by Mr. Archibald that the allegation that the work was possibly only partly made by Tyson introduces a serious element of uncertaintly into the claim. Questions immediately arise as to the sense in which the expression 'partly made* is used, Does it indicate some particular section of the RGM or does it indicate that the total work was the result of joint contributions by Tyson and other persons? The delivery

With respect to the ROM designated NES 3.6 it 1s said that it is a work or an adaptation of a work made or partly made by Jeremy Douglas Wills who was at all msterial times an employee of CPUL. Willis' affidavit states that he and a Dr. Brian Robertson, also a CPUL or Acorn group employee, wrote the source code for the NES. The affidavit also discloses that the NFS version supplied to date in BBC microcomputers sold in the UK and Australia has not been the 3.6 version but the 3.34 version. Mr. Mandie for the applicants explained that they seek relief against future infringements when the

With respect to the ROM designated DNES which is said to

have been made by persons employed by Acorn pursuant to @ contract of service with it and other persons the relevant affidavits filed by the applicants indicate that there 1s uncertainty as to the identity of the work so made or partly made and as to whether the work said to have been performed by employees of the Acorn in making it was not actually performed by them as

employees of CPUL. FEurther particulars are inevitable.

With respect to a file server designated as Level 2, it is ssid that the inference to be drawn from the affidavits filed by the applicants is that as to part of the file server programme referred to the relevant worl was performed exclusively by independent contractors of Acorn or of CFUL and no interest in the copyright therein could have arisen in either of those companies. It 1s said, alternatively, that the inference is that partly at least, the relevant work was performed by employees of CPUL and questions of joint ownership arise. It 1s said also that there is no identification im the pleading or particulars thereunder of the work forming that portion of the level 2 file server programme in respect of which the claim to ownership of copyright is properly or reasonably able to be

With respect to the nine literary works the subject of the allegation that Acorn is the equitable owner or equitable joint owner thereof by virtue of an equitable assignment and of which particulars are given in sub-paragraphs (a) to (9) of para. 27A of the amended statement of claim, the necessity for

further particulars is also demonstrated by the contents of

(a) the ROMS designated as BASIC I and BASIC II are said in the pleadings to be a work or an adaptation of a work made by Alun Roger Wilson whilst employed by CFUL. Witson's affidavit seeks to identify the work carried out by him on the BASIC I and the BASIC II. It states that Wilson created a BASIC Language interpreter source code which was then assembled into machine code and then transferred into a BASIC I. This source code was

(b) the ROMS designated as MOS 0.1 and MOS 1.2 are each said to be awork or an adaptation of work made or partly made by Paul Bond and Jaseph PBascombe Dunn, It is alleged that Dunn was employed by CPUL at all relevant times and that CPUL was the joint legal owner of the copyright therein. Bond's relationship to CPUL is not Stated. Dunn's affidavit states that he designed and

wrote the source codes for the cassette filing system

modules of the machine operating systems ultimately

The work carried out in the MOS 0.1 and 1.2 as identified and its function explained but it appears on the face of the particulars and even giving due consideration to Dunn's affidavits that the existence of joint ownership of copyright aver the whole of the relevant work depends upon the nature of the worb in which it is claimed and the contributions as authors of

The ROM designated as NFS 3.34 is said in the particulars to be a work or an adaptation of a work made or partly made by Jeremy Dowglas Wills who was at all material times an employee of CPUL which is the joint legal owner of the copyright therein. The affidavit of Wills indicates that he wrote the source code known as NES together with Dr. Brian Robertson also am employee of CPUL or Acorn. On this basis no question of joint ownership would arise unless contributions were made by

The particulars allege that the RGM designated as DFS 0.90 was a work or an adaptation of a work made or partly made by Huge Mark Tyson and Stephen Byram Furber who were both CPUL employees at all saterial times.. Tyson in his affidavit states that he is wholly

responsible for developing and improving the existing

disc filing system known as DFS although the program was originally developed by a number of persons during the

Furber deposes in his affidavit that in late 1978 whilst working as a consultant for CPUL he wrote the source eode for an early disc filing system which was modified by employees of the Acorn group. This dise filing system formed the basis of the disc filing system utilised by Acorn and some of his source code is used in the DFS ROM. He also deposes that the object code of the present DFS ROM used is an adaptation of the DFS source code, part of which was prepared by him and of which he is a joint owner. on 7 June 1984 he assigned

any copyright he sight have had in the saurce code to

The uncommitted logic array to operate a video processor often designated as SC is said in the particulars to have been made or partiy made by Furber or to be an adaptation of a work made or partly made by Furber. Furber's affidavit sets aut a humber of circuit diagrams, symbols and drawings which he designed and from which a final mask of the SC was ultimately made. Furter states that the SC is a translation or adaptation of the data contained in his original schematic layout and that he was the author of the literary work embodied

Nr. Archibald said that in view of the statement in the particulars that the SC was partly made or was an adaptation of a work partly made by Furber the inference is that the rest of the work was done by outsiders to the Acorm group of companies. Further particulars may

It is stated in the particulars that Kim Spence-Jones and Richard John Chamberlain made or partly made the uncommitted logic array to act as a serial processor often designated as 2C. The particulars state that Chamberlain was an employee of CPUL. CPUL thus claims that ait is the original joint legal awner of the

Chamberlain's affidavit states that he was requested to create a final drawing from working drawings prepared by Spence-Jones. Spence-Jones is not stated to be an employee £ CPUL or Acorn. Chamberlain says that he did not add any new or original information but merely prepared it in a final format. He says that his drawing

was substantially a reproduction of the working drawing

The level I file server is alleged in the particulars to have been made or partly made by Wills, Dunn, Stephen Love, Karl Dellar and Brian Knight of whom Wills, Bunn

and Love were CPUL employees at all material times.

Dellar and Knight are not said to be employees of CFUL

The affidavit material does not disclose that any of

It is unnecessary to deal specially with these. Observations along the lines of those made in respect of

particulars under para. 27 and 27A are generally applicable.

It is apparent from the foregoing that the nature and extent of the works in which copyright is claimed are not identified with precision. Also there is uncertainty in the source of the applicants' title to the copyright claimed and that in some respects where copyright is said to arise from joint authorship there is uncertainty as to whether what is alleged is not separate authorship of separate parts of a work

It appears to me that it would be appropriate, where there are allegations that copyright claimed by assignment or otherwise has arisen from joint authorship of works made or partly made by persons through whom Acorn claims, the respondent are entitled to be informed with precision of the identity of each work or part of a work ain respect of whom

Acorn's interest is said so to have arisen, and of the

contribution of each person to the making of that particular work or part of a work, so as to show the contribution of authorship and the circumstances giving rise to copyright in the person or persons through whom the alleged interest of Acorn is said to be derived. At this stage I leave the detail of matters of this kind to be dealt with pursuant to request of the respondents for further particulars if such request is necessary after delivery of further particulars by the applicants along the lines referred to above. The necessity for such a request will depend on the extent to which the applicants deal with these msatters in association with the giving of particulars which are now ordered identifying the works in which copyright is claimed and the extent to which the respondents need further information for the purposes of

1. that the applicants have leave to amend the statement of claim ain the terms of the amended statement of clsim already delivered and to make amendments thereto as it may consider necessary in the light of the comments in the reasons for judgment delivered this day concerning

paras. 27 and 274 of the amended statement of clain.

2. that the applicants deliver ta the respondents further particulars of each work in which copyright is claimed stating the nature and extent thereof and the extent to

equipment comprised ain the relevant BBC microcomputer,

On the respondent's motion I make no formal order ather than to reserve liberty to apply should any question arise as to the sufficiency, in the light of the observations in these reasons, of particulars delivered by the applicants, and to

CATCHWORDS Damages - personal injury - assessment - appeal - damage to cervical discs - builder's labourer - incapacity for heavy work - capacity for light work unaffected - economic loss - scarcity of work for builder's labourers - award for economic loss excessive - general damages not excessive - appeal

RICHARD BROERS and HANS HOOGVLIET v. PETER MISOSSIOU

CORAM: SHEPPARD, MORLING AND EVERETT Ju. 6 DECEMBER 1984 SYDNEY.

WHERE, MADE 3 Sydney THE COURT ORDERS AS FOLLOWS:

1. Appeal allowed.
2. Order of Kelly J. varied by substituting for the

4. Respondent to have a certificate under the Federal

AUSTHALTAN CAPITAL TERRITORY ~ ~ No. ACT G 330 of 1984 DISTRICT REGISTRY

BETWEEN : RICHARD BROERS and HANS

• -HOOGVLIET Appellants AND: PETER MISOSSTOU Respondent

CORAM: SHEPPARD, MORLING and EVERETT JJ. DATED: 6 DECEMBER 1984

THE COURT: This is an appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory in an action in which his Honour qave judgment for Peter Misossiou (the respondent) against the appellants for the sum of $174,019.55. The proceedings before the Supreme Court were by way of assessment of damages in respect of injuries received by the respondent as a result of the negligence of the appellants,

against whom interlocutory judgment had been entered.

The respondent was injured on 8 November 1979 when the car in which he was travelling was struck by vehicies driven bv

the appellants. The respondent was born on 2 May 1932 in

Macedonia. He did not receive any secondary education nor did he qualify for -any trade. He arrived in Australia in 1960 and in 1970 he "moved with his family to Canberra. Thereafter he had a number of jobs. For about three years he was employed in a grocery store but then left to work as a labourer witha plumbing firm. He worked with that firm from July 1978 to 26 February 1979 and thereafter was unemployed until 22 June 1979 when he obtained work for a brief period with the plumbing firm for which he had worked previously. On 23 July 1979 he commenced work with John Collet Constructions Pty Limited and he remained with that company until 26 June 1980. His work included fixing concrete, fixing steel, erecting scaffolding, carrying materials for bricklayers and carpenters and doing

The injuries which the respondent suffered in the accident are referred to in considerable detail in the trial

judge's careful judgment. It is sufficient for present purposes that we make a brief reference to them, because neither party sought to challenge his Honour's findings in respect of them. At the time of the accident the respondent exper1renced pain in his neck. Subsequently he also experienced frontal headaches. He said the pain was continuous and worsened over the ensuing three months. He sought medical attention but continued to work. He continued to work asa builder's labourer from the date of the accident until 26 June

1980. He was given notice by his employer about a week before

that date,.. noé because of his injuries but because of -3

The respondent was operated on by Dr Robson on 31 July 1980 for fusion of cervical discs. He experienced some relief from his symptoms for about a month after the operation but thereafter said he started to get headaches and pain in his neck. Dr Robson was of the view that solid union had been attained at the site of the surgery. Nevertheless the

respondent continued to complain of symptoms. In a report on 9

"I am afraid my views are perfectly clear on this A matter and those views are that he is not within
reach of any conventional forms of treatment at the | moment. I do not consider he will feel better or will be better until all possibilities of leaqal redress are removed, and he is back on his own.

I do consider that the proper treatment for him is not medical at all but 1s legal and consist(s) in

the most immediate settlement possible of all legal matters.

After this there is some probability that he will improve but until that point is reached there is no possibility whatever in my opinion.

I think one can only say that he is unable to work, but I find it difficult myself to accept that he is unable to work on any grounds except functional ones."

The respondent continued to complain of pain at the back of the neck radiating to the occipital region. He had severe occipital headaches daily and claimed that he was rarely free from pain, in spite of medication. On 29 July 1982,

following conservative treatment, Dr Newcombe performed

micro-surgical. disc excision at the C4 - 5 level of the neck and found, soft degenerate disc tissue extending into the spinal canal. The earlier post-operative course was promising but on 3 September 1982 the respondent again experienced neck pain. On 10 September 1982 Dr Newcombe expressed the opinion that the respondent was precluded by his injury from the work of a labourer.

Thereafter the respondent continued to complain of his

disabilities. Apparently there was no improvement in his

condition. The trial judge was of the view that the

respondent's physical condition co-existed with a functional

The appellants arranged for films of the respondent's activities to be taken at various times. When shown these

films Dr Mann, who had furnished reports in respect of the

"He has much more mobility and moves more freely in those films than he showed me he was able to do in my consulting rooms." The trial judge said that the existence of the films and the respondent's answers to questions concerning the

subject matter made 1t impossible for him to accept him on many

-" Dr'-Mann was of the opinion that the respondent was capable of Light work, although he had informed the doctor that he could not work. As to the respondent's ability to perform labouring work, Dr Mann said:

"Tf someone were to ask me, 'Do you think it is wise for Mr. Misossiou to work as a builders labourer

now?' I would say, 'No'. I would say 1t was most unwise for him to undertake that work for the

• reason that he has a number of joints in his neck fused and other joints are going to have to do more work, they are already diseased. If I were an insurance company advising an employer whether or

not to employ this man I would say, 'If you employ him I will think of asking you to get another insurer'. So there is a hazard there, not only for the worker who might stumble ona brick and wrench his neck in a way which an ordinary person would not think twice of which could be a calamity to Mr. Misossiou, and for his employer, and for the insurance company at that time." The learned trial audge expressed himself as being satisfied on ali the evidence that the respondent was no longer

able to pertorm the heavy work of a builder's labourer. He was

also satisfied that he was physically capable of doing light

work. Neither of these findings was challenged before us.

The respondent gave evidence that he experienced much pain in his lumbar spine. There was evidence that the

respondent did, ain fact, suffer from degenerative changes in his lumbar spine, but the first occasion when he complained about this condition was in February 1983. Of the lumbar spine condition, his Honour said:

"T have taken into account the lumbar condition from which he is now suffering, a condition which I am

"" umable to attribute to the accident but which is

. degenerating lumbar spine. However, I do not think

would have proved disabling. On this I accept the opinion advanced by Dr. Newcombe. "

appellants who submitted that, on the evidence, there should

have been a finding that the respondent's low back pain was in fact disabling. The difficulty about this submission is that the trial judge had the considerable benefit, which we do not have, of seeing and hearing the respondent in the witness box. He viewed films of the respondent's activities which we have not seen. These films were available to be viewed on the

hearing of the appeal. We did not find it necessary to see them. It was common ground between counsel that they would

undoubtedly show that the respondent was capable of performing

Nevertheless, whilst the trial judge found that the low back pain would not have proved disabling to the respondent up to the time of judgment, he said that it was proper to take into account that he had a degenerative spinal condition which predated the accident. He said that it was possible that some other incident might have caused symptoms which could have rendered him incapable of working. He said he took this into account as a possibility and not as a probability and that 1t was a contingency which must be

a Since the question of the availability of work to the respondent in the future had he not been injured is a matter of central importance to the appeal, we should make reference to some of the more important evidence on this question. Some of the respondent's former employers gave evidence. One of them said that "there was not all that much work around" as at June 1980 when the respondent was retrenched, but that he was of the opinion that the respondent could have found some employment. Another former employer said that there was a downturn in the building industry in 1980 and that there had been a problem of availability of work in the building industry ever since. He gave the following evidence:

came to you with a bad lower back, you would not employ him, would you, with low back

It is too heavy to have a man with any low back problems, is not it,---That is right.

And also I think it is true to say that younger men, unfortunately, are given preference for

more work out of older men than the younger men. That is my personal belief.

But, there are not too many builders labourers of 65 about, are there?---No.

Not too many builders labourers of 60 about either, are there?---No.

They tend to end in that occuption in their early fifties, do not they?---I would say so, yes."

Another witness said that over the three or four vears

prior to the trial he had employed labourers for periods of a

few. weeks and then terminated their employment because of non-availability of work. He agreed that "generally speaking" work was "pretty tight in the A.C.T., not only for labourers, and also that there was a lot of competition for the few

However, it should be said that there was other evidence that the respondent was a good worker before the accident and opinions were expressed by people who knew him that he would always be able to find a job in Canberra. His former employers spoke well of him as an employee and one of them said that he was the last person to have his employment

terminated on one occasion when there was a downturn in the

It is apparent from the evidence that there were a number of factors which were likely to affect the respondent's

ability to continue to obtain employment as a builder's labourer in the years that followed the accident. First, there was the disability which he suffered as a result of the injury to his cervical spine. : Secondly, the degenerative condition of his lumbar spine, although not disabling at the time of the accident, was a factor which could have affected his continued ability to perform heavy work. Thirdly, the downturn in the building industry in the A.C.T. cast some doubt on the

respondent's ability to obtain continuous employment

notwithstanding the good quality of his work. Fourthly, there

was. a disinclination on the part of employers to continue to employ" builder's labourers in their middle fifties 'and thereafter, particularly if they manifested any signs of back

respondent's future work prospects in the following terms:

"In summary therefore I regard the plaintiff as permanently incapacitated from doing heavy

lahouring work of the kind in which he had engaged. I make some modest allowance for the fact that he may obtain some suitable light work consistent with his capacity. I allow for the possibility that from the date of the accident until to-day he may have lost some work because of the conditions

operating in the building industry. I make a similar allowance, again modest, for the future."

We turn now to consider the manner in which his Honour

"For economic loss to date, taking into account the matters to which I have referred, I think the proper amount to award 1s $48,500.00. This 1s based on the net loss agreed at the trial with a continuing loss at the rate of $262.13 to 5 April

_1984 and a subsequent continuing loss from 6 April 1984, taking into account the 4.1% national wage rise which occurred on that date and making due allowance for tax, of $271.79 per week. I have deducted the claim made on account of travelling allowance since it seems to me that that sum would in the normal way be expended by the plaintiff in gaining his income. See Sharman v. Evans (1977) 138 C.L.R. 563 at p.577.

For the period from 31 August 1984 to 31 October 1984 I allow $2,400.00.

Based on the new tax rates to come into operation on i November 1984 - no impost on the first $4,595.00 with tax at the rate of 25% on

income between $4,596.00 and $12,500.00 and, so far as is relevant, at the rate of 30% thereafter, I conclude. that the plaintiff will from 1 November 1984 suffer a net loss of $279.35 per week. Over seven and a half years until he reaches the age of 60, using a discount rate of 3%, his ioss at that rate would amount toa little less than $97,772.00. I think the proper amount to award for future economic loss from 1 November 1984 is $75,000.00. In fixing this sum, I have regard to a contingency to which I have not earlier referred, namely, that the plaintiff might have worked beyond the age of 60. I donot think this is particularly likely having regard to the evidence but it is something which I ought properly to take into account.

Out-of-pocket expenses are agreed at $6,369.55. I allow on account of the Fox v. Wood (1981) 148 C.L.R. 438 component the sum of $11,750.00, a proportionate increase from the figure agreed at the hearing to take account of the time which has elapsed since then.

For general damages I award the sum of $30,000.00. I do not think the plaintiff's injuries are seriously iriconveniencing although they disabled him from earning his living and I think that sum 1s the proper amount to award in all the circumstances. I have regard to the fact that he exaggerated his claim to some degree but I cannot lanore the siaqnificant fact that surgerv was twice resorted to by treating neurosurgeons. There can be no doubt that 1t was necessary in each case."

No challenge was made to the allowance of the sums of $2,400 and $11,750. The appellant sought to challenge as excessive the award of $48,500 for economic loss to date of judgment, and of $75,000 for future economic loss. Further, we permitted the respondent to file a notice of contention raising the question whether the allowance of $30,000 for general damages was too low and also whether there should have been included in the judgment a modest amount for future

' Before considering the arguments advanced to us by counsel for --thé appellants we should say that we reject the argunent that the trial judge was in error in finding that the respondent's lower back pain would not have proved disabling. It is true that there was evidence (much of which came from the respondent himself) that the degenerative condition of his lumbar spine was causing him significant disability as at the date of trial. However, there was other evidence in the case, not the least cogent of which may have been the films, which established that the respondent had little or no difficulty in carrying out many activities notwithstanding his spinal condition. In the light of all the evidence we think it was plainly open to his Honour to come to the view, as he did, that the respondent would not have been disabled because of lower back pain. This is not to say. of course, that the condition of his lumbar spine was not a significant matter to be taken

unto account in determining the proper amount of damages to

We turn now to consider the two criticisms of his Honour's judament made by counsel for the appellants. It was first submitted that the allowance of the sum of $48,500 for

past economic loss was excessive. It is apparent that this sum

was calculated by making a discount of about 6% on a sum of approximately $51,000 which would have been the total amount of wages that the respondent would have earned had he continued in

full time employment as a builder's labourer to the date of

judgment. in our opinion this discount was too low. We have already adverted to the circumstance that the respondent had been given notice of termination of his employment because of a downturn in the building industry. It should also be mentioned that he had been unemployed for some months in the year or two before he sustained his injury because of non-availability of work. The evidence to which we have already referred as to the state _ of the building industry in the Australian Capital Territory leads us to the view that for a man of the respondent''s age and limited skills there was a significant visk that he would have suffered periods of unemployment

between June 1980 and date of judgment, a period in excess of

We do not overlook the fact that the respondent was a good worker who was well regarded by his former employers.

Whilst this 1s a factor to be taken into account in his favour

on this issue, it 1s, we think, mare than counter-balanced by the circumstance that whilst his lumbar back condition may not

have produced disabling symptoms as at June 1980, it may well have done so during the ensuing four years. The respondent was approaching the age when, having regard to the nature of his occupation, the degenerative changes in his lumbar spine could be expected to produce symptoms which might affect his capacity for work. In fact, ain February 1983, the condition of his lumbar back was such as to cause him to seek medical attention.

Even though he may have exaggerated his troubles it is

inescapable that-he did seek medical attention for his back at that - time. : in our opinion all these factors warranted the making of a greater discount than that allowed by his Honour. In all the circumstances we would reduce the amount of the

We turn now to consider the award of $75,000 for future economic loss. At the date of judgment the respondent was nearly 52-1/2 years old. The evidence to which we have already referred shows that it was unlikely that he would have been able to obtain employment as a labourer in the building industry in the Australian Capital Territory after he reached the age of 60. The evidence, which was called in his own case, made it plain that few labourers were able to continue in employment in the industry beyond their mid-fifties. We think it would be a reasonably generous assumption to make that the respondent might have expected to continue in employment as a builder's labourer for a further five years beyond date of judgment. Of course, this is not to say that the respondent might not have continued in some form of employment for more

than five years and this is a matter to which we shall

The present value of 5 years wages at $279.00 per week, using the 3% tables, 15 approximately $68,000. However his Honour found that the respondent had some residual work

.° "E think it possible that with the problems of -~ Yitigation behind him, the plaintiff may well : become more at ease with his neck problem and find

" himself able to search for and perhaps obtain light work, I do not rate the possibility very highly

If one were to take the view that the respondent's future capacity to earn income was limited to $50 per week, then the figure of $279.00 is reduced to $229.00 per week. The resultant capitalised figure, again using the 3% tables, would be about $56,000. It is still necessary to have regard to all the other vicissitudes of life. In the respondent's case they included not only the ordinary vicissitudes, but the distinct possibilities that he would be unable to obtain continuous employment in the five years after judgment and that the condition of his lumbar spine midht incapacitate him in any event. Of course he may not have suffered any periods of unemployment and may have worked bevond his 57th year, and had the respondent lost his job as a builder's labourer he might well have been able to obtain light work in some other field of employment. But there is no suggestion that the injuries suffered by the respondent have disabled him from light work. Taking into account all these matters we think that a figure of $50,000 for future economic loss is appropriate to compensate

The two criticisms of the Judgment made by the respondent's counsel can be dealt with shortly. In our opinion

the award of $30,000 for general damages was well within the

range. of general damages appropriate to the respondent's injuries, especially bearing in mind the exaggerated account he gave of his symptoms. His Honour said that he did not think that the respondent's injuries were seriously inconveniencing although they disabled him from earning his living. This was a finding which we think was justified on the evidence. There

is no basis for disturbing the award for general damages.

The claim for future medical and pharmaceutical expenses can also be dealt with shortiy. It is true that there was evidence that before the respondent underwent surgery for the second time he did have a continuing need for some modest medical care and pharmaceuticals. But there is no evidence that after the second operation, which appears to have been successtul, this need continued. His Honour's judgment isa most careful one. He did not see tit to award the respondent anything for this head of damages. It may well have been his view, for instance, that there was no substance in the respondent''s claim that he needed to expend moneys on sedatives

and the like because of his view that the respondent was

exaggerating his symptoms. We do not think any reason 1s shown

for disturbing his Honour's judgment in this respect.

In the result, we are of the opinion that the judgment should be reduced by the sum of $30,000. The appeal will theretore be allowed and the judgment varied by reducing it to

$144,019.55. The respondent must pay the appellant's costs,

] certify that this and the 1s preceding pages are a true copy of the reasons for

judgment herein of the Court LP MLK on, ' "Associate