COASTWIDE STEEL & METAL WORK PTY LIMITED v DOUGLAS [2008] NSWCA 173 | Case summary

COASTWIDE STEEL & METAL WORK PTY LIMITED v Jason James DOUGLAS JUDGMENT 1 ALLSOP P: This is an appeal from orders made by a judge of the District Court (Boulton ADCJ) awarding judgment in favour of the plaintiff (the respondent in the appeal) in the sum of $277,365.02. 2 The accident in question occurred on 12 July 2000 and arose out of the plaintiff's employment with the defendant (the appellant in the appeal). While engaged in the task of delivering some lengths of steel to another business, the plaintiff attempted to dismount from the tray of the truck used in the appellant's business and which was stationary. In dismounting he slipped and fell awkwardly causing injury to his back. 3 An Ordinary Statement of Claim was filed in the District Court at Newcastle on 21 March 2001. It alleged a breach of the defendant's duty of care as an employer. The defendant's defence contained a plea that the incident was a motor accident within the meaning of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) and that the plaintiff was precluded from commencing the proceedings under s108 of that Act, various required preliminary steps not having been taken. On 28 November 2001, the defendant moved the District Court by notice of motion to "dismiss" the statement of claim. On 11 December 2001, a judge of the District Court (Coleman DCJ) struck out the statement of claim. He did so without evidence, on the basis that the claim as pleaded could only be characterised as a claim under the MAC Act. No appeal was lodged against this order. 4 In 2004, fresh proceedings were filed in the District Court being the proceedings determined by the primary judge, the subject of this appeal. The motor accident insurer was joined as the second defendant. 5 The primary judge refused to deal with the issue between the employer (the first defendant) and the motor vehicle insurer (the second defendant) prior to the trial. In his judgment, the primary judge concluded that the accident was not a motor vehicle accident within the meaning of the MAC Act. No complaint was made about that conclusion on the appeal. No party before the primary judge sought to plead any issue estoppel in respect of this issue. The second defendant below (the motor vehicle insurer) was not a party to the appeal. 6 Various complaints were made about the approach of the primary judge. The first, and most fundamental, was that he failed to apply correctly relevant amendments to the Workers Compensation Act 1987 (NSW) (the WC Act) introduced by the Workers Compensation Legislation Further Amendment Act 2001 No 94 of 2001 (the 2001 Further Amendment Act) with effect from 27 November 2001 (one day before the defendant brought its motion to dismiss the plaintiff's first proceeding in the District Court). Relevantly, Clause 14 of Schedule 4 of the 2001 Further Amendment Act amended Clause 9(1) of Part 18C of Schedule 6 of the WC Act to provide as follows: (1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment. 7 The primary judge found that cl 9(1) did not apply to make Schedule 1 to the 2001 Further Amendment Act relevant (these provisions brought in a new damages regime) because he concluded that proceedings for recovery had been commenced in a court before the commencement of the amendment, that is before 27 November 2001. 8 The primary judge referred to two decisions of this Court and distinguished both as not governing the result before him. His dealing with the second decision was not controversial; his dealing with the first, Asplundh Tree Expert (Australia) Pty Limited v Robertson [2005] NSWCA 471 was. In that case, on 26 November 2001 (one day before the operation of the 2001 Further Amendment Act), the plaintiff had filed a statement of claim for damages for an injury suffered at work without having complied with the WC Act, s151C. This provision provided that a person claiming compensation payable under the WC Act was not entitled to commence court proceedings for damages in respect of the injury concerned until after six months elapsed from the time of notice of the injury being given to the employer. There were certain exceptions in s151C(2), not apparently relevant in Asplundh. The plaintiff in Asplundh had been injured at work on 4 June 2001. Six months had not elapsed since notice to the employer before proceedings were commenced by way of Statement of Claim in the District Court claiming damages for his injuries. The plaintiff was plainly seeking to take advantage of the damages regime in place before the anticipated changes in the law on 27 November 2001, without complying with s151C. On 24 April 2003, the objection to the proceedings having been taken, the plaintiff discontinued the action that had been commenced. The plaintiff then commenced a second action. The question arose which regime of damages applied - whether that governed by the amendments made by Schedule 1 of the 2001 Further Amendment Act or that subsisting before 27 November 2001. This question fell to be answered by the proper construction of cl 9(1) of Part 18C of Schedule 6 of the WC Act introduced by cl 14 of Schedule 4 of the 2001 Further Amendment Act. 9 In Asplundh, Handley JA (with whom Spigelman CJ and McColl JA agreed) construed cl 9(1) and expressed the view that the word "proceedings" towards the end of the clause meant "the proceedings". Thus, one looked to the date of commencement of the proceedings under which the damages were relevantly claimed. It had been argued that "proceedings" had been commenced before 27 November 2001, though they had been discontinued in 2003. The Court rejected this argument because the proceedings for the recovery of damages (and the only such proceedings, the former having been discontinued) were the proceedings commenced after 27 November 2001. See generally [2005] NSWCA 471 at [9]-[13]. 10 Handley JA could, possibly, have approached the problem by a different route. His Honour could, possibly, have concluded, in the light of the terms of s151C(1), that the first proceedings (filed on 26 November) were not proceedings at all within the meaning of cl 9(1), since they were filed without any legal entitlement. They could, perhaps, have been seen to be invalid or unauthorised proceedings, and as such not encompassed within the word "proceedings" in cl 9(1). His Honour did not so find. The ratio of his judgment was that the word "proceedings" should be read and understood as "the proceedings" under which damages were claimed. 11 In the present appeal, leave was not sought to argue that Asplundh was wrongly decided. Rather, the respondent sought to distinguish it by reference to the different facts here. Here, the proceedings commenced before 27 November 2001 were authorised by the WC Act, s151C and no question of attempting to subvert the new regime introduced by the 2001 Further Amendment Act arose, as it did in Asplundh. These matters do factually distinguish the plaintiff's position here, from that of the plaintiff in Asplundh. They do not, and cannot, however, affect the meaning of the statute. The Court in Asplundh interpreted cl 9(1) in a manner which leads to the conclusion that "the proceedings" here are the proceedings, that is the action, filed in 2004 and which were heard by the primary judge, not the proceedings that were struck out in 2001. 12 The parties were agreed about the consequence of this conclusion. The primary judge had assessed damages by reference to certain categories. It was agreed that some of those categories were not permissible subjects of compensation on the assumption that the regime brought in after 27 November 2001 governed the plaintiff's claim. These were general damages for non-economic loss, future out-of-pocket expenses, damages in the nature of care referred to as Griffiths v Kerkemeyer damages and past out-of-pocket expenses. 13 The conclusion that I have reached that Asplundh is determinative in the appellant's favour on the question of the proper regime to apply, therefore limits, somewhat, the matters on appeal. The appellant complained in relation to non-economic loss or general damages that the primary judge had awarded a sum that was excessive and out of proportion to the facts before him such that it could be seen that his evaluation contained error. Given the above conclusion about the correct regime to apply, it is strictly unnecessary to deal with this question. In case I am wrong in relation to Asplundh, I will, however, deal with this question at the end of these reasons. Complaint was also made about the judgment of the primary judge in relation to past economic loss, future economic loss and a reduction of only 20% for contributory negligence. Bound up with the complaints about these matters was a complaint that the primary judge had not dealt adequately or indeed at all with an attack on the plaintiff's credit made at the trial. Thus, it was said by the appellant that if the appeal were to be successful, the matter should be returned to the District Court for another hearing. 14 I have come to the view that the complaints about the primary judge's approach to damages were, in part, justified. In order to explain these conclusions it is necessary to examine the facts of the matter and to describe the approach of the primary judge. 15 The plaintiff was born in March 1973. He was 27 years old at the date of the accident on 12 July 2000. As the plaintiff unloaded the lengths of steel from the back of the truck he was required to move back and forth on to the rear of the truck. The truck had a tailgate and side walls. The task became more difficult as the lengths of steel were removed from the tray. Ultimately, the plaintiff sought to get off the back of the truck by placing his feet on a metal tie rail underneath the frame of the truck towards the back of the truck. He slipped and fell from the vehicle while dismounting, catching one foot between the tie rail and the frame of the truck and falling backwards on to the ground. As a result of the incident the plaintiff suffered disc lesions at L4/5 and L5/S1. The plaintiff underwent surgical treatment, being two laminectomies in 2001. The medical and other evidence examined by the primary judge indicated that the plaintiff had had significant alcohol abuse problems prior to the accident and also obesity problems. He found that there had been a severe aggravation of these matters along with severe depression extending over almost the entire period since the accident. The laminectomies had alleviated to a large extent his leg pain, but he was still troubled with low back pain which caused him pain on a daily basis and interfered to a significant extent with his leisure pursuits and amenities of life. 16 A number of things need to be emphasised about the accident. This was the plaintiff's second day on the job. He had spent the first day at the premises of the defendant. This was the first time that he had been asked to use the truck for any deliveries. The Court had the benefit of examining the photographs that were before the primary judge and it is evident that without any steps or ladder or without taking the tailgate down and sitting on the bed of the tray there were few risk-free ways of getting off the tray of the truck. It might be thought that the plaintiff took one of the more risky ways, seeking to put both feet on the tie rail while facing towards the tray of the truck in order to prepare to jump of the tie rail to the ground. 17 The allegations of negligence were clearly made out. The appellant said that the assessment of contributory negligence of only 20% was manifestly inadequate. In argument the defendant said that a proper apportionment would have been 30%-40%. I cannot agree that 20% is unreasonable in the circumstances. Reading the report of Dr Adams which contained the clearest statement of how the accident occurred and recognising that the plaintiff had not been given any assistance or instruction as to an appropriate way of removing himself from the tray of the truck, I do not find the primary judge's conclusions in any way inadequate. As the primary judge said: "He [the plaintiff] adopted an ill judged solution which is partly the product of his own inexperience and his desire to get on with the job in hand". In all the circumstances, in my view, the assessment of contributory negligence of 20% was in an acceptable range. 18 The next complaint was that the economic loss award was manifestly excessive. It was said that the primary judge had failed to address in any real way the employment history of the plaintiff given the lack of any real history of employment prior to the accident and given the lack of information tendered on behalf of the plaintiff about remuneration in prior work. The reasons for judgment deal briefly with the plaintiff's education and early work history. The primary judge said the following at page 3 of his reasons: The Plaintiff was born [in] March 1972. He was educated to Year 10 level, which he completed in 1989. He did unskilled work as a supermarket employee, builder's labourer and bar attendant, doing this last-mentioned work at Merrylands Bowling Club, The Entrance Bowling Club, and at Port O'Call Lodge at Port Douglas. These jobs were interspersed with lengthy periods of unemployment. Indeed prior to his accident in July 2000 he had been unemployed for some thirteen months. 19 The primary judge then spent a page discussing the plaintiff's playing of lawn bowls. This was important because there had been a degree of exaggeration by the plaintiff in his evidence about his proficiency at the sport. This was emphasised by the appellant in this Court in the context of the criticism of the primary judge that he had failed to address the attack on the plaintiff's credit raised at the trial in relation to the undertaking of lawn bowls. It was said that the evidence given by the plaintiff at the trial was inconsistent with some of the history he gave to doctors leading up to the trial. Whilst the primary judge did not specifically deal with this attack on the plaintiff's credit, it can be seen from the early discussion of lawn bowls in the reasons for judgment that the primary judge dealt with the matter as an important subject and also that he recognised that there had been exaggeration by the plaintiff in his evidence. 20 Complaint about past economic loss was also made that the primary judge gave no discrete analysis of the work history (or lack of it) of the plaintiff or of the material or lack of material put before the Court as to previous earnings. Reliance was placed upon what was said by Hodgson JA (with whom Giles JA and Basten JA agreed) in Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [66] where his Honour said: [I]t was erroneous for the primary judge to have paid no regard to the plaintiff's record of earnings, as disclosed by his tax returns and as disclosed by the records concerning the 33 weeks prior to the accident. Those were important matters, and if they were to be totally disregarded, they needed to be explicitly addressed and reasons given for disregarding them. The failure of the plaintiff to lead satisfactory evidence concerning his pre-accident employment earnings, and to give any explanation for the earnings shown in the income tax returns, means in my opinion that uncertainties created by this absence of evidence should not be resolved in the plaintiff's favour. 21 The approach of the primary judge in relation to past economic loss was set out on page 35 of his reasons as follows: The Plaintiff has received payments of compensation from the First Defendant. This has involved payment of reasonable and necessary out of pocket expenses pursuant to s60 of the Workers Compensation Act and further payment of wage losses pursuant to s40 of the Workers Compensation Act. These last mentioned payments involve the five step process of calculation set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527. They total $191,914.30 already paid by the First Defendant. The Plaintiff does not claim anything for past wage loss over and above the $191,914.30. 22 It can be seen that there was no reasoning process other than the adoption of the workers compensation payments. Such evidence as there was would indicate that the plaintiff in the period 30 November 1998 to 23 December 1998 had earned gross salary in the sum of about $450 per week. His employment at the defendant, however, was at an award rate of $15.60 per hour gross entitling him to wages of $592.80 gross and $472.00 net per week. 23 The lack of expressed reasoning by the primary judge is open to legitimate criticism by the appellant. Nevertheless, a number of things can be stated about past economic loss. First, the payment of workers compensation payments can be taken as an admission of some incapacity for work. Secondly, there was, on the medical evidence, little doubt that the plaintiff had suffered a significant injury to his lower back in the incident on 12 July 2000. The primary judge carefully reviewed the medical evidence in his reasons. From that objective evidence, it is tolerably clear that the primary judge accepted the medical evidence that the plaintiff was unfit for work involving heavy lifting, though he had a residual capacity for work and to use the expression of some of the medical practitioners "to do light duties". Whilst the primary judge did not examine, at all, the material concerning the plaintiff's lack of employment history, in this context, it cannot be said that this matter did not bear upon his Honour's reasons, to some degree. It is clear from the short extract that I earlier cited that his Honour was well aware of the lack of consistent employment by the plaintiff. Also, the evidence disclosed that the plaintiff had just begun his job with the defendant which, on his evidence (not challenged), was to be given to him. The plaintiff said in examination in chief: "At first, I was set down as a trial basis for a week but after the first 24 hours, after the first day, George, the boss, was quite impressed with me and just said 'look the job is going to be yours but we still have a trial'". Thus, there was material upon which the primary judge could conclude that the respondent had the prospect of full time employment with the defendant at the rate of $472 net per week. The question of impairment of capacity from the injury could therefore be assessed by reference to these objective factors. 24 Later in his reasons, in dealing with future economic loss, the primary judge referred to "potent factors" about the plaintiff's history. They were:

(8) The plaintiff has had further unrelated accidents involving fractures when he would also have been unable to engage in paid employment in any case. 25 Particularly the first seven of the above factors are equally important in assessing what can be said to be the economic consequences of the affectation of the plaintiff's capacity for work caused by the injury. From the text and structure of the primary judge's reasons it is clear that his Honour did not take these matters into account in assessing past economic loss. Counsel for the appellant stressed the unreality of the award of $191,914.30 based as it was on workers compensation payments for total incapacity. While the sum can be seen as referable to an amount of a little under half the average weekly earnings at the time of the trial (as stressed by counsel for the respondent) it can also be seen to bear little relationship to the evidence concerning this plaintiff and his history. The acceptance by the primary judge of the potency of the above factors (when considering future economic loss) allows these matters to be taken into account, together with the fact that the plaintiff was able to undertake some sporting activity after his injury and together with the medical evidence as to partial incapacity or capacity for light duties, to lead to the conclusion that the choice of the workers compensation payments in all probability over-compensated him for the past. 26 Notwithstanding the attempts of counsel for the respondent to justify the sum of $191,914.30, I do not think, in all the circumstances, that the use of these payments was a proper method of assessing past economic loss. First, the use of workers compensation payments is not determinative of the past economic loss of the plaintiff. Secondly, apart from the equation of workers compensation payments with past economic loss there were no reasons given for the conclusion. Thirdly, when one has regard to the "potent factors" referred to above, the lack of any enthusiasm displayed in the past by the plaintiff for work, the ability of the plaintiff after the injury to engage in some sporting activity and the continued failure of the plaintiff to seek light duties after the injury, and set these facts against the objective conclusion of partial incapacity described by the medical practitioners in their reports discussed by the primary judge, it is difficult to conclude that a proper assessment of the award for past economic loss was the equivalent of a sum that equates to payment of a sum a little below the full time wages in the job in question with the defendant for five days a week. 27 Given the history of this matter and the likely cost of another hearing, I think it important that any reassessment be done by this Court. 28 The parties were agreed that the sum of $191,914.30 could be seen to be based on a gross sum of approximately $525 per week. Taking into account the matters to which I have made reference about the clear history of a lack of activity and enthusiasm by the plaintiff for engaging in paid employment and his partial incapacity after the accident, I am of the view that a sum in the order of $150,000 would more than adequately compensate him for his past economic loss and would reduce the sum awarded to him which can be seen to be calculated on in effect full time employment at a modest wage by almost 20% to take account of the kinds of matters to which the appellant directed its attention on the appeal, and which the primary judge thought (in another context) were potent factors. This is not, I accept, the most precise way of approaching the matter, but I think it does justice between the parties by reducing an amount which is excessive, without the considerable added expense to both parties of a re-hearing. 29 This conclusion would reduce the past loss of superannuation to a sum reflective of this sum of $150,000. The sum should be $13,500 on the basis the parties put to the Court. The amount pursuant to Fox v Wood (1981) 148 CLR 438 would also have to be adjusted at the rate identified by the parties. 30 The future economic loss was calculated by his Honour at $250,000. The primary judge accepted counsel for the defendants' submissions that the matters which I have earlier set out, were relevant to the ascertainment of future economic loss. (They were, as I have found, equally relevant to making an assessment as to whether the workers compensation payments for past economic loss adequately reflected the monetary value of the past economic loss.) 31 Counsel for the plaintiff submitted to the primary judge that the future economic loss should be calculated at $497,987.00 based on an employment figure of $700 per week, calculated on 5% tables for 32 years and subtracting 25% for vicissitudes. Together with superannuation this produced a gross figure of $497,987.00. The primary judge rejected this submission because of the potent factors outlined by counsel for the defendant and to which I have made reference. His Honour said that the only acceptable procedure appeared to involve the assessment of a global or buffer figure which would have to be, nonetheless, substantial. The primary judge said that he would include superannuation in this amount. The primary judge continued: I must have regard to the fact that the plaintiff having been born [in] March 1973 is still a relatively young man. He has some residual capacity as I have pointed out above but is unlikely ever to return to the full time work place. I offset this residual capacity against the prospect that with increasing family responsibilities his work pattern was likely to improve. 32 The last comment was one which was open to his Honour, though it involved a degree of speculation. The plaintiff had shown no real appetite for work in his life thus far, as far as the evidence revealed. At the time of the trial he had four children. It may well be that in due course his increasing family responsibilities would change his work pattern. 33 There was no real reasoning in the assessment of the buffer figure. However, counsel for the plaintiff was able to identify how the figure of $250,000 could be reached conformable with the kinds of considerations identified by his Honour and quoted above. Taking the period up to the plaintiff turning 65 and adopting a figure for vicissitudes of 25% one only needed a figure of $394 per week, including superannuation, to reach the sum the primary judge awarded. This can perhaps be seen by the submission of the plaintiff which he rejected. The employment figure put by counsel for the plaintiff at the trial of $700 can be halved to $350 and a sum for superannuation added and one can understand how a figure of $250,000 could be reached. It was submitted, without any objection by counsel for the appellant, that a sum in the order of $350 was approximately one-third of average weekly earnings at the time of the trial. 34 Whilst I have concluded that his Honour assessed the past economic loss excessively, one can conclude that he did so because of a failure to take into account the kinds of matters, set out above, which he described as "potent", in particular the first seven of those factors. However, in this calculation of future economic loss, in the primary judge's attempt to arrive at an appropriate global or buffer figure, his Honour plainly did take into account these matters. In these circumstances, I am not prepared to conclude, given the plaintiff's lack of education and skills and the future vicissitudes of life, that his Honour was not entitled to come to this global figure. Therefore I would not interfere with it. 35 In the light of the above reasons and the agreement of the parties about other matters the orders that I would make would be based on the following calculation: Past economic loss $150,000.00 A calculation by reference to Fox v Wood $ 23,377.77 Past loss of superannuation $ 13,500.00 Future economic loss $250,000.00 $436,877.77 Less 20% contributory negligence $ 87,375.55 Subtotal $349,502.22 36 From this sum workers compensation payments are to be deducted under the WC Act, s151A. The Court has not heard the parties as to whether the deduction should be $191,914.30 or some lesser sum referable to past economic loss. I would permit the parties to put in written submissions about this. 37 As to general damages (on the assumption that I am wrong about the first point concerning Asplundh) the maximum applicable to this plaintiff was agreed to be $222,450. The primary judge assessed the severity of non-economic loss at 60% of the most extreme case. Having regard to all the medical evidence and the evidence of the plaintiff, I think that this was excessive and beyond a reasonable range, which, in my view, had an upper band of 40%. Thus, if it be necessary I would reduce the respondent's award of general damages accordingly. 38 As to costs, both sides have had success on appeal in roughly equal measure. I would make no order as to costs. The appellant did not seek to have the costs order below varied. 39 I would require the parties to file written submissions as to the operation of s151A of the WC Act. Subject to that, I would allow the appeal, set aside the orders of the District Court made on 29 June 2007 (other than as to costs) and in lieu thereof order the entry of judgment in the sum referable to the above figures. If the parties can agree upon the approach that agreement should be notified to the Court within 7 days and orders conformable with these reasons and the agreement of the parties will be made. If competing submissions are to be filed, the Court should be informed of that fact within 7 days and the competing submissions should be filed within a further 21 days. The issue will then be dealt with on the submissions. 40 IPP JA: I agree with Allsop P. 41 BASTEN JA: I agree with the directions and prospective orders proposed by Allsop P and with his Honour's reasons. **********

COASTWIDE STEEL & METAL WORK PTY LIMITED v DOUGLAS

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Judgment (28 paragraphs)

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