Bridge Printery Pty Ltd v Mestre

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 14815/92 LOWER COURT JUDICIAL OFFICER : Master Harrison

COUNSEL : J N Gleeson QC/E Romaniuk (Appellant) T Tobin QC/R Sheldon (Respondent) SOLICITORS : Sparke Helmore (Appellant) Carroll & O'Dea (Respondent) CATCHWORDS : Personal injury; damages; effect of post-injury heart attack on quantification; age of retirement; past and future economic loss. DECISION : Orders: 1. Allow the appeal with costs. ; 2.Set aside the judgment below and in lieu thereof substitute a judgment for the respondent for the amount awarded by the trial judge adjusted as follows:(a) Reduce the amount awarded to the respondent for past economic loss by deducting the wages lost by the respondent during the period 3 June 1988 to 31 December 1988.(b) Reduce the amount awarded to the respondent for past economic loss by calculating that amount on the basis that the respondent would have ceased work at aged 65.(c) Reduce the amount awarded to the respondent for future economic loss by 15% for vicissitudes.

• 13 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40858/97 CLD14815/92 MASON P FITZGERALD JA DAVIES AJA

1 MASON P: I have had the benefit of reading the judgment of Fitzgerald JA. I agree, except in relation to future economic loss. 2 A court may assume without specific evidence that a plaintiff would, in the ordinary course, probably have continued to work in the pattern exhibited before injury until reaching the age at which the age pension became payable (Dykstra v Head (1989) Aust Torts Rep ¶80-280). But there is no fixed rule. In a particular case there may be a basis for finding that early retirement was likely or that the plaintiff might have continued to work beyond the ordinarily accepted age of retirement. As McHugh J put it in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 24: There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at the age of sixty-five. However, the financial loss which flows from that impairment in respect of the period beyond age sixty-five is of a different measure from the loss for the period up to age sixty-five. It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom.

See also Balasubramanian v Sara (12 June 1997, NSW Court of Appeal, unreported). 3 In Dykstra (at 68,985), Samuels JA said: It is not uncommon for plaintiffs to be asked specifically what they had in mind, and the answers may be accorded various degrees of weight. In a great many cases the plaintiff has probably never considered the matter, or did not until injury introduced a handicap which had not previously been contemplated. 4 There are at least three reasons for discounting the weight of a plaintiff's answer to the question: "How long would you have worked if uninjured?" 5 First, it is necessarily hypothetical. Secondly, the question is usually posed at a time well in advance of the date on which the plaintiff would be faced with the reality of retirement on pension or continuing to work. Thirdly, capacity to work is as relevant as intention to do so. 6 The respondent was injured when he was fifty-one and he gave evidence when he was sixty-three, over ten years since he had last worked. Shortly before the accident, he had applied to join a superannuation fund and had nominated sixty-five as his retirement age. His stated intention to work until seventy because "money is never too much" was of little weight in the circumstances. The cardiac condition and the need to treat it persuades me that the learned Master erred in calculating future economic loss on the basis of retirement at seventy. In my view, the probabilities strong support the "normal" age as the upper limit. 7 On this basis I would apply the conventional fifteen per cent for vicissitudes. 8 FITZGERALD JA: This appeal seeks a reduction in the damages for personal injury awarded to the respondent by a Master on 2 December 1997. According to the appellant, the respondent was awarded too much for past economic loss, future economic loss and lost superannuation. 9 The respondent was injured at work on 22 October 1987. His physical injury to his right shoulder and neck made him unfit for work for a period of only months, but the Master found that a paranoid reaction extended his total incapacity up to judgment. The Master was also of opinion that the respondent has a post-judgment residual earning capacity of 30%. 10 Two points were raised by the appellant in relation to the Master's assessment of past economic loss. 11 One argument was based on the premise that, since it was found that the respondent had a post-judgment residual earning capacity of 30%, he must have had a similar pre-judgment residual earning capacity, and s151L of the Workers Compensation Act 1987 requires a corresponding reduction in the amount awarded because of the respondent's failure to attempt to find work for a number of years prior to trial. Since I am of opinion that the underlying assumption is unwarranted, this ground of attack fails. 12 The other point raised by the appellant with respect to the award for past economic loss related to a heart attack which the respondent suffered on 3 June 1988, i.e., little more than seven months after his injury at work. Although the heart attack was unconnected to the respondent's work injury or its consequences, i.e., would have occurred in any event, and would have incapacitated the respondent for a period if he had not earlier been injured but was fit for work, the Master awarded the respondent past economic loss equivalent to his total loss of wages between the date of his injury and the date of judgment. 13 The evidence plainly demonstrates that, even if he had not been injured, the plaintiff would have been totally unfit for work between his heart attack on 3 June 1988 and the end of that year. The position thereafter is less clear. At trial, there was not a close examination of when the respondent's heart condition ceased to prevent him from working. However, a report dated 2 May 1990 from one cardiologist (which the appellant tendered) and another report dated 7 July 1990 from another cardiologist (which the respondent tendered) both support the conclusion that the respondent's heart condition had ceased to prevent him from working by, at the latest, mid-1990. 14 For whatever period the respondent's heart condition incapacitated him for work, he was incapacitated also by his work injury and its sequelae. The onus was on the appellant to establish when the respondent's heart condition ceased to incapacitate him. Purkess v Crittenden (1965) 114 CLR 164. 15 In my opinion, the state of the evidence is such that it cannot be concluded that the respondent was incapacitated by his heart condition for any longer than the period from 3 June 1988 to the end of that year. 16 The respondent opposed the deduction of any amount from his past economic loss on the basis of his incapacity to work due to his heart condition. The only support for that approach in circumstances such as the present is to be found in a brief passage in the judgment of Lord Reid in Baker v Willoughby. [1970] AC 467, 494. There is, on the other hand, a persuasive body of opinion to the contrary. See for example Faulkner v Keffalinos (1970) 45 ALJR 80, 85 per Windeyer J; Hogdson v General Electricty Co Ltd (1978) 2 Lloyds Law Reports 210; Jobling v Associated Dairies Limited [1982] AC 794; Nilon v Bezzina (1988) 2 QdR 420; Chappel v Hart (1998) 72 ALJR 1344, 1348 [16]. 17 Accordingly, I am of opinion that the respondent's award for past economic loss should be reduced by the amount which he was awarded in respect of the period from 3 June to 31 December 1988. 18 The appellant's primary challenge to the Master's award for future economic loss was related to her conclusion that, but for the respondent's work accident, he would have continued to work until he was 70. That was the effect of his evidence, which the Master accepted. 19 At the time when he was injured at work, the respondent was aged 51 and had not suffered his heart attack. The Master might have concluded, but did not, that a person who had that experience was likely not to continue working past 65, the age contended for by the appellant. Further, the respondent was aged 61 at trial, and his cardiologist considered that it was probable that he would need a further coronary by-pass graft before he is 65. Again, that is a matter which would diminish many people's desire to continue working. On the other hand, there was no attempt by the appellant to provide evidence that the respondent would not have been permitted to continue working until age 70 if he desired to do so. 20 While it is regrettable that the Master's reasons for her decision do not discuss this aspect of the case in more detail, the matters which can be advanced in opposition to acceptance of the respondent's evidence that he intended working until he was 70 are not so compelling as to justify this Court in concluding that the Master erred in her factual finding and substituting its own opinion that the respondent would have ceased work at age 65 if he had not been injured. 21 On the other hand, the matters relied on by the appellant reinforce its complaint that the Master did not discount the respondent's award for future loss to take account of vicissitudes. In the circumstances, there should be a discount of 25% to take account of the respondent's particular circumstances. Cf Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497-499. 22 The appellant's final point related to the respondent's award for lost superannuation. The amount awarded by the Master was within a range supported by a report provided by a firm of accountants. There is no basis for this Court to reject the Master's conclusion on this matter. 23 In summary, I would allow the appeal, and reduce the amount awarded to the respondent by the Master by deducting wages lost by the respondent during the period 3 June to 31 December 1988 and reducing his award for future economic loss by 25%. 24 As arranged at the hearing, the Court will receive written submissions from the parties in relation to the costs of the appeal. Those submissions can also provide for the correct amount of the respondent's damages according to the decision of this Court. 25 DAVIES AJA: There are three issues with respect to which the learned Master, in my opinion, adopted a wrong approach. 26 The first concerns the fact that, during the period that Jose Mestre, the respondent, was incapacitated as a result of the injury which he had sustained at work, he suffered a heart attack and underwent a bypass operation. Those events would, themselves, have incapacitated Mr Mestre from engaging in employment for a period. Fitzgerald JA has adopted a period of incapacity of six months and I am content to accept that. Notwithstanding that Mr Mestre would have been incapacitated by that event, the learned Master made no allowance for it. The Master said, "There is no economic loss attributable to the heart attack". 27 The principle which should have been applied is that which was enunciated by Gibbs CJ and Wilson J in Todorovic v Waller (1981) 150 CLR 402 at 412 where their Honours said: " [A] plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries." 28 The aim of the award is to put the plaintiff, so far as an award of money can do so, in the position he would have been in if he had not sustained his injury. In the present case, it was necessary to take account of the fact that, prior to the injury at work, Mr Mestre suffered from cardiovascular disease and, as the facts have shown, this would have led inevitably to heart problems and the necessity for a bypass operation. 29 A different principle which the Master may have had in mind is that laid down in Baker v Willoughby [1970] AC 467 where it was held that damages are not to be reduced by reason of the happening of a subsequent tort. In that case, it was held that, where the subsequent event is another tort, the first tortfeasor cannot rely on the subsequent tort to reduce the damages unless the second event either reduces the disabilities from the injury for which the defendant is liable or shortens the period during which they will be suffered: see Lord Reid at p 494 and Lord Pearson at p 496. 30 Mr Mestre's heart attack was not a supervening event of that nature. It arose from Mr Mestre's existing atherosclerotic condition. In calculating damages for a plaintiff's pre-judgment loss, a court prefers facts to speculation, and will take account of the facts as have actually occurred: see Graham v Baker (1961) 106 CLR 340 at 346. Accordingly, the damages should be reduced to take account of the period of six months during which Mr Mestre was incapacitated for work by reason of his heart attack. 31 A second issue is that the Master assessed future damages on the basis that Mr Mestre would have continued to work in the printing industry until the age of seventy. This finding was based principally upon the following evidence: "Q. How long did you intend to work for? A. Well, everything goes well, money is never too much. If I am well and I am alive to 70 years old not too much."

Mr Mestre also gave evidence that he believed that one of his co-workers had been over sixty-five years when he stopped work. 32 A finding that an injured plaintiff would have worked beyond the usual retirement age ought not to be made unless there are facts from which an inference can be drawn that probably that would have happened. The age of sixty-five for males is not just an arbitrary age. It is a usual and customary age for employees to retire. Experience has shown that the ability of employees to function at an adequate level beyond that age tends to be much reduced, particularly if any physical work is involved. Industry and employment are structured so that the age of sixty-five is a common age for retirement. The age pension for males commences at age sixty-five. Superannuation schemes, such as the one which Mr Mestre hoped to join, assume and specify that employees will retire at or before that age. And usually they do, for it is what they expect to do and what is expected of them. 33 In Balasubramanian v Sara (Court of Appeal, unreported, 12 June 1997), Mason P, with whom Priestley JA agreed, made these points when he said: "The conventional approach to such matters is to assume that a male in employment will continue to work until age 65, when he would take up the age pension. This reflects the common experience of working Australian men, the attitude of employers generally (at least in the era before discrimination on account of age in matters of employment was proscribed), and assumes that the person in question has no source of income other than that from personal exertion which would undercut his ability to earn the full age pension. However there is no fixed rule. In a particular case there may be a basis for finding that early retirement was likely or that the plaintiff might have continued to work beyond the ordinarily accepted age of retirement. As McHugh J put it in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 24: 'There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at the age of sixty-five. However, the financial loss which flows from that impairment in respect of the period beyond age sixty-five is of a different measure from the loss for the period up to age sixty-five . It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom." (emphasis added) 34 In the present case, not only was there no evidence of particular factors existing which would have made it probable that Mr Mestre would have continued in employment beyond the age of sixty-five, but, before that age, he had already suffered a heart attack and had a bypass operation. Moreover, his surgeon expressed the opinion that, "He is probably looking at further coronary bypass grafts over the next few years". In such a circumstance, a finding that Mr Mestre may have retired prior to attaining the age of sixty-five would not have been unexpected. A finding that he would, as a matter of probability, have worked to the age of seventy, was not well based. 35 I would reduce the future economic loss so as to calculate the loss on the basis of retirement at the age of sixty-five. 36 The last issue is that no allowance was made for vicissitudes. I would make an allowance of 15 per cent, which would take into account, inter alia, Mr Mestre's cardiovascular condition. 37 On the issue of mitigation, I agree with Fitzgerald JA.

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