Court of Appeal (WA)|2001-09-07|Before: Wallwork J, Steytler J

Butler v Barnfield Holdings Pty Ltd [2001] WASCA 277 (7 September 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BUTLER -v- BARNFIELD HOLDINGS PTY LTD [2001] WASCA 277

Damages - Appeal - Law graduate - Slipped at work at fresh food outlet and hurt her back - Not fully recovered - Depression - Whether able to work as a lawyer - Whether damages for loss of amenities and loss of future earning capacity sufficient

Abalos v Australian Postal Commission [1990] HCA 47; (1991) 171 CLR 167

Agbaba v Witter (1977) 51 ALJR 503

Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Chambers v Jobling (1986) 7 NSWLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Galea v Galea (1990) 19 NSWLR 263

Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Joyce v Yeomans (1981) 1 WLR 549

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Rosenberg v Percival [2001] HCA 18; [2001] 75 ALJR 734

SS Hontestroom v SS Sagaporack [1927] AC 37

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306

The Mediana [1900] AC 113 HL

Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355

Western Australia v Watson [1990] WAR 248

Wilson v Peisley (1975) 50 ALJR 207

Wright v Shire of Albany (1993) Aust Torts Reports 81-239

1 WALLWORK J: The appellant appeals against the sum of damages awarded to her in a judgment of the District Court at Perth on 21 December 2000. Essentially, the appellant complains that a sum of $36,000 which was awarded to her for damages relating to pain, suffering and loss of amenities was not sufficient; also, that the sum awarded for future loss of earning capacity was inadequate.

2 The learned trial Judge found that the appellant had sustained an injury to her back which later required spinal surgery, when she slipped on a lid of a rubbish bin which had been left on the floor at her place of work.

3 There is a cross-appeal which challenges the finding that the appellant suffered her disc injury in the fall; but, for reasons which I will later discuss, that ground of the cross-appeal should not be upheld. There is also a ground of that cross-appeal which asserts that the learned trial Judge erred by awarding the appellant the sum of $45,000 for an aspect of her future loss of earning capacity which I will also discuss later in these reasons.

4 In the reasons for judgment, the learned trial Judge related that some weeks after the appellant had fallen and injured her back, the pain had become worse. Eventually she was in agony and dragging her left foot. The accident had happened on 21 August 1996. On 12 October 1996, Mr Bannan, a neurosurgeon, performed a discectomy on the appellant.

5 At the time of the accident the appellant had been 25 years of age. By the time of the trial she was 29 years of age. At that stage, sitting for more than 20 minutes caused her pain but she could walk and swim without any difficulty. However, activities which she had enjoyed prior to the accident were no longer open to her. Those activities included scuba diving, skiing, hiking, netball, tennis and jogging.

6 The appellant, who is a graduate in law, had commenced working with a law firm in 1998 for two hours a day and had worked up to four or five hours a day. If she sat in any one place for any length of time, her back would become very sore. The firm was not able to give her articles because she was not able to work full time as it was causing too much pain in her back. She had then tried to work as a waitress for four hours a day, but when she was asked to carry tables and chairs she said she could not do that. She did not obtain any more work with that employer. She had then attempted another job as a waitress for 20 hours a week, but the plates were very heavy. She had ended up with a very sore back and required further physiotherapy.

7 At the time of the trial, the appellant suffered with depression. She said that she felt down all the time and did not want to get out of bed. She did not feel useful and her mood was really low by the end of 1999. Her general practitioner had prescribed her anti-depressants. She was also taking sleeping tablets and analgesics. Her ambition was to work part-time as a lawyer. She did not believe that she could work full time, but she could do five to six hours a day.

8 Mr Bannan, who had performed the discectomy on the appellant on 12 October 1996, told the Court that at the operation he had found a sequented fragment of disc under the nerve root. This was a piece of disc which had broken off from the disc itself and travelled down under the nerve. He had removed that fragment, decompressed the nerve and removed some more disc fragments from the L4-5 disc.

9 Nearly 12 months after the operation, Mr Bannan said that the appellant was suffering pain in the back after prolonged sitting and standing. He considered that those symptoms were due to pain arising from her degenerated disc at the L4-5 level. That was the disc which had been damaged. He thought the appellant would have a long and gainful employment in the legal profession but might have some restrictions in her ability to lift and carry heavy legal files. Subsequently to that diagnosis, and by 23 March 1999, which was nearly three years after the accident, Mr Bannan was of the opinion that the appellant would not be able to cope with full time work as a law clerk because of the sitting and standing requirements and the lifting of files. He thought she could work part-time as a waitress for about 20 hours per week. A year later, on 26 May 2000, he said that the appellant had been left with symptomatic mechanical back pain which might require surgical treatment in the future. There was a 5 to 10 per cent chance that she might need a lumbar fusion or artificial disc placement if her pain back worsened after her pregnancies. Later that year Mr Bannan said he did not believe the appellant had the ability to work in a job which involved any repetitive heavy lifting or bending. Her incapacity for heavy lifting was likely to be permanent. It was possible she might be able to return to work as a lawyer. She had the ability to work as an articled clerk or law clerk in a part-time capacity. She should be able to work between three and five hours per day up to five days a week.

10 Mr Slinger, a spinal surgeon, advised on 30 May 2000 that he would not have thought the appellant was fit to return to work as an articled clerk or solicitor in view of the prolonged sitting required. Also, he thought that work as a waitress was best to be avoided. He thought the appellant was fit to return to work such as retail sales, light store person, general office duties or receptionist, emphasising the need for such employment to allow the appellant to sit or stand at her discretion.

11 Mr Schaeffer, a consultant neurosurgeon, thought that the appellant was capable of working full time in a sedentary occupation such as a lawyer, although he did not deny that from time to time she would have a mild to moderate degree of intermittent physical discomfort.

12 Mr Harper, an occupational physician, thought that the appellant would be capable of working as an articled clerk part-time time, with restrictions. He thought her then work capacity was very low and that she was incapacitated to work as a solicitor, shop assistant or waitress. She had to avoid prolonged sitting, stressful situations, lifting, carrying and stooping. He thought she could practise law on a part-time basis. He thought it was important to acknowledge the presence of pain and the effect it had on a person's concentration and tolerance of remaining at work throughout the day. Also there was the question of the inconvenience and the general disruptive effect of having to stand after 20 minutes of sitting. He thought that was an intrusion into a person's capacity to maintain a thought and continue it.

13 Dr Marsden, an occupational physician, said that the appellant did have a capacity to work in a legal office. He had had three consultations with the appellant and thought she could work as a junior solicitor. He said:

"I think in all fairness and the way one would run the rehabilitation, I would run her through a gradually increasing rehabilitation programme, but the ultimate would be full time work and I think she would get there."

Dr Marsden initially thought that the appellant might go back to work, say, four hours a day but gradually build it up and ultimately be able to work full time as a solicitor.

14 The learned trial Judge came to the view that the appellant was permanently physically unfit to perform any sort of manual work. The Judge was not satisfied on the probabilities that, simply looking at the appellant's physical capacity, she was only capable of working part-time as a lawyer. The Judge commented:

"Mr Slinger said that prolonged sitting would not be possible for the plaintiff and I do accept that, but he appeared to think that that was all that was available to her as a legal practitioner, and I do not accept that."

The Judge took the view that in most areas of legal work the appellant could sit or stand at her discretion, and accepted the evidence of Dr Marsden that the appellant could work full time after a rehabilitation process. The Judge thought that given time, the appellant could gradually integrate herself into working in the law, with a rehabilitation programme of the nature referred to by Dr Marsden, with perhaps a little longer time than he would allow.

15 The learned Judge noted that the appellant's then physical condition was complicated by her depressed state. The Judge preferred the evidence of one psychiatrist to a second psychiatrist who had given evidence. Dr Febbo, whose evidence the learned Judge accepted, had said that on one occasion when he had seen the appellant she had been suffering from a major depression of marked severity. She required intensive and assertive psychiatric treatment in order to address the impairment in her mental state. It was his view that there could still be significant improvement in her mental state. That would occur with psychiatric treatment. However, Dr Febbo said that the chronic nature of the appellant's physical condition was such that she will remain at risk of a future deterioration in her mental state with the development of significant depressive symptoms. She may need an additional input from a psychiatrist in the future.

16 In the long term, Dr Febbo was of the opinion that it would be likely that there would be significant improvement, and that would be achieved through the use of anti-depressant medication. He noted that there was considerable stress related to the compensation/litigation process and he thought the removal of that stress would be associated with improvement. His opinion was: "To what point she is left with residual symptoms is a little unclear".

17 From the point of view of general damages, it is significant that Dr Febbo thought the appellant would need to see a consultant psychiatrist for a period of 6 to 12 months. The visits would start being quite frequent and then gradually decrease. By that he meant starting at fortnightly visits, then monthly, six weekly and then every two months. He thought there would be an improvement and that the improvement would take place over the course of a few months. Then it would depend on the response to medication.

18 The learned Judge said that the appellant had suffered an extremely painful and debilitating accident which had required surgery. She continued to have pain and difficulty and, as a result of her injury, she had suffered, and continues to suffer, depression which will require ongoing treatment. Furthermore, at some time in the future she may require a fusion. A whole range of the physical activities in which she previously engaged is now denied to her.

19 The learned Judge assessed the sum of $36,000 for the appellant's loss of amenities.

20 In my view, it is not without significance in this regard that the learned Judge allowed the sum of $34,000 for future medical costs and a further $6,000 for future pharmaceutical costs.

21 The appellant complains that the sum of $36,000 was not an appropriate award for general damages excluding the allowance for loss of future earning capacity.

22 The principles concerning the approach of an appeal court to an appeal against the quantum of damages were discussed by Ipp J in State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; 104 of 1996; 11 March 1997 - BC 9700650. In his reasons in that case, Ipp J said:

"In Wilson v Peisley (1975) 50 ALJR 207, Mason J said at 214:

'The settled rule then is, that an appellate court will not disturb the primary Judge's award of damages for personal injuries unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.'

In Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, Aickin J said, at 159 - 160:

'In my opinion the proper approach to this case is to look at the total sum awarded as general damages and in all the circumstances, the plaintiff's suffering, past, present and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the award of $150,000 is "out of all reason" or "wholly disproportionate" to the circumstances.'

In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, Cooper J, at 346, said:

'Thus although an assessing Judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated. ... It is the allocation of particular sums which disclose the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum. ... That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.' "

"These principles are particularly pertinent in a case such as the present, where the damages award is relatively high and is made up of several components, the majority of which are based on discretionary considerations. ... In these circumstances there is considerable room for individual choice in regard to a multitude of factors. It may well be that in regard to certain particular components of the award, the appellate tribunal might consider that the trial Judge, without acting on a wrong principle of law or misapprehending the facts, has awarded too much or too little. Where errors falling into that category lead to relatively insignificant increases or reductions in the overall sum awarded, the appeal court will not normally interfere. In regard to issues of that kind the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not whether some portion of that total sum standing alone would call for the court's intervention. On the other hand, it may be that a component of an award is held to be wrong, not because of discretionary matters, but because the trial Judge has acted upon some erroneous principle or upon some mistake or fact."

24 Applying the principles discussed by Ipp J, and taking into account the award for loss of future earning capacity which is discussed below, I think that the learned Judge in this case has erred concerning the award of $36,000 for this aspect of the damages. I would increase the sum of $36,000 to the sum of $60,000 for that aspect of the general damages. This is because the appellant's injury caused the appellant great distress in the four years prior to the trial and will continue to cause her serious problems for the rest of her life. She has not only suffered the physical difficulties which have been described in these reasons and which have resulted in a gross interference with her work and recreational activities, but in addition to those disabilities she has suffered severe mental distress, which the learned Judge accepted. Further, there is the possibility she will require surgery in the future. I repeat that the learned Judge assessed a sum for future medical costs and future pharmaceutical costs at $40,000. That is a good indication of what the learned Judge thought lay in store for the appellant in the future.

25 With respect to loss of future earning capacity, the learned trial Judge calculated a sum to December 2001 and thereafter allowed a further sum of $45,000. That was on the basis that allowing for the loss of earnings to December 2001 would allow the appellant time to get back to full time work, but would not allow for the fact that the appellant would have a mild to moderate degree of intermittent physical discomfort, particularly under conditions of undue physical distress or undue loading of the spine. The Judge thought that this could lead to some difficulty with work and some time away from work.

26 The learned Judge, in calculating this aspect of the damages, provided information as to the way in which the calculations had been made. Her Honour said:

"As to the sum of $45,000 I have chosen 10 per cent of the calculation made by the plaintiff's counsel of her loss over a period of 35 years."

That 35 years was to the age of 65. The sum of $45,000 was 10 per cent of $457,273, which was the sum which had been calculated by the plaintiff's counsel for future economic loss, less a 50 per cent discount for retained capacity and all contingencies. The total loss, using the 6 per cent discount multiplier for 35 years to age 65, had been $914,546 - 50 per cent of that was $457,273. The counsel's calculation for the future loss of earning capacity, which included superannuation, had been based on the earnings of a fourth year solicitor, being $85,000 per annum.

27 It can be seen that in some respects the use of the $85,000 per annum could be seen to be conservative. Also, in my view, the learned trial Judge's assessment of only 10 per cent of the appellant's claimed loss was, in the light of all the evidence which the learned Judge accepted, extremely conservative. The appellant had not reached a stage where she was able to work full time and, even if she does reach that capacity by December 2001, on all the evidence she will have serious limitations on her capacity to obtain employment and keep it in the open market. She will be competing against young lawyers in good health with no physical problems. If she were to apply for employment against other lawyers, she would be gravely disadvantaged in the employment market. Even if she obtained full time employment, she will always be working at a disadvantage. In my view, a more appropriate allowance for this aspect of the damages would be the sum of $100,000. That sum may even be conservative.

28 The respondent cross-appeals, and the first ground of the cross-appeal is that the learned Judge erred in finding that it was more probable than not that the appellant had suffered a disc prolapse in the fall at work when there was compelling evidence to the effect that the initial pain did not necessarily imply that the disc prolapse was suffered in the fall; that the plaintiff would have found it very difficult, if not impossible, to play the netball game after her fall if she had suffered the disc prolapse in the fall; thirdly, that the disc prolapse could have been caused by the appellant's active involvement in netball or some other precipitating event given the degenerative condition of her disc prior to the fall.

29 On a fair reading of all the medical evidence, most of the doctors had no hesitation in attributing the appellant's injuries and consequent need for treatment to her fall after she slipped on the lid of the rubbish bin at work. The learned trial Judge accepted that the appellant had proved her case. There was ample evidence from the appellant herself, from her boyfriend at the time and from the medical witnesses to justify that finding.

30 The appellant had said that, after the fall, she had been collected by her boyfriend, Mr Benfield. She had told him that she was feeling sore and he had suggested that she not play netball, but she had determined that she should. The game that evening was played in two halves of about 20 minutes each. The appellant said her back was sore but she was being careful. About half way through the second half, when her team was ahead, she had stopped playing. The game was not a contact sport and there had been no incidents during the game. Mr Benfield confirmed the facts outlined by the appellant.

31 The appellant went to work on the two days following her accident but was very sore. Because the chef was away she had felt that there was no one who could do the work that she was doing and she should work. The following Monday she attended a physiotherapist. She told the physiotherapist that there had been no incident during the netball game, but on the next day she had developed central low back pain but no leg pain. She was then sent to a general practitioner, Dr Ward, who put her off work for two weeks. She then returned to work with a lumbar support. The pain got worse over subsequent weeks until eventually she was in agony and dragging her left foot. It was then that she went to see Mr Bannan and the discectomy was performed.

32 The learned trial Judge accepted the appellant's evidence as to how the incident occurred and also accepted the evidence of Mr Benfield, whom the Judge described as an impressive young man with no reason to lie, as his relationship with the appellant had ended. The learned Judge said:

"I accept what the plaintiff has to say about when and where she suffered pain and as I say that is supported by the evidence of Mr Benfield. The plaintiff fell on her left side and there was no incident at netball."

33 The Judge, having considered the medical evidence and the other evidence, came to the conclusion that it was more probable than not that the appellant had sustained the injury when she fell at work. In my view, there is no reason to suggest that the learned Judge was wrong in that finding.

34 Ground 1 of the cross-appeal is not established.

35 The second ground of the cross-appeal is that the evidence did not justify a finding that the appellant would have difficulties in finding employment and that the award of $45,000 was inordinately high in all the circumstances for "some difficulty with work and some time away from work".

36 I have already discussed this question when considering the grounds of appeal. In my view, the total award for damages was not sufficient to

compensate the appellant for the very considerable damage which was done to her and to her future working life.

37 In the result, I would allow the appeal with costs and, taking into account both the aspects of the global damages discussed above, I would increase the sum for damages by $79,000.

39 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Wallwork J. I agree with them and with his Honour's conclusions.

40 BURCHETT AUJ: I have read in draft the reasons for judgment of Wallwork J. I agree with them and the orders he proposes.

(1998) 17 NSWCCR 355

Butler v Barnfield Holdings Pty Ltd [2001] WASCA 277

At a glance

Court

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Judgment (80 paragraphs)

Butler v Barnfield Holdings Pty Ltd [2001] WASCA 277 (7 September 2001)

Parties

Cases Cited (17)