Green Triangle Bark Processors Pty Ltd v Parker [2000] VSCA 22

Court of Appeal (Vic)|2000-02-15|Before: WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.

Damages - Jury's award - Assessment - Pain and suffering - Pecuniary loss - Whether "manifestly excessive" - Test to be applied.

I will invite Chernov, J.A. to give the first judgment in this appeal.

The plaintiff was born on 15 November 1978 and at the time of the accident was aged 17. He had been working for the appellant since he left school in about mid-1995. Before the accident, he was an energetic person who enjoyed working, water skiing, riding motor bikes, mixing with his friends and no doubt engaging in the usual range of activities that are pursued by young people of his age. During his school days, he worked outside school hours, first delivering newspapers and later, products for the local chemist. He obtained employment with the appellant on his own initiative and often worked well over eight hours while only being paid the standard wage. During his time with the appellant, the plaintiff decided that he would like to become a tradesman in the building industry or a pastry chef. Although he attended apprenticeship interviews, they were not fruitful as at the date of the accident. As will be seen later, the evidence established, or at the very least, it was open for the jury to find on the evidence, that the accident left him seriously impaired physically, emotionally and psychologically, depriving him of enjoyment of life including the ability to undertake work which he had every reason to expect he would pursue.

On 19 May 1999, the jury awarded the plaintiff damages of $230,000 for pain and suffering and $517,000 for pecuniary loss and damage. Judgment was entered for the plaintiff accordingly, after taking into account deductions that were agreed upon between the parties and damages by way of interest. This appeal is concerned with the appellant's contention that the jury's verdict was unreasonably high or manifestly excessive and should therefore be set aside. It asserted that the award of $230,000 for pain and suffering was wholly disproportionate to the plaintiff's incapacities and that it should be reduced to $125,000. It further contended that the plaintiff's pecuniary loss and damages should be limited to no more than $270,344.

It is convenient to mention at this point that the appellant accepts that the plaintiff was an honest witness and a keen worker who showed initiative at seeking out and securing employment since his school days and that in relation to his injuries to which I will turn shortly, he did not overstate their magnitude or effect on him.

Since the jury awarded separate amounts for pain and suffering (including the loss of amenities of life) and for pecuniary loss, it is convenient to deal separately with each of the two heads of damages.

Mr Gillies who, with Mr Perry, appeared for the appellant, argued that the jury's award of damages of $230,000 for pain and suffering was unreasonably high given the recovery made by the plaintiff from the injuries suffered by him. He contended that it was disproportionate to his residual incapacities. Mr Gillies accepted that the plaintiff had suffered severe injuries which included a fractured pelvis and nerve damage to the urogenital area. These injuries resulted, inter alia, in the plaintiff continuing to suffer pains in the back, the pelvic region and to experience numbness in his left leg as well as impaired sexual and urinary functions. Mr Gillies also accepted that these were serious disabilities. He further recognized that the plaintiff experienced psychological disorders such as depression and post-traumatic stress as well as diminution in self-esteem. But, he argued, these injuries have stabilized and the plaintiff was mobile and able to lead a reasonably normal life and his prospects for the future, particularly in terms of employment, were not unreasonable. Mr Gillies pointed to the fact that although the medical and associated treatment of the plaintiff was intensive for a few months after the accident, it tapered off after that and the plaintiff had not found it necessary to consult doctors for the past two years or so.

It was also emphasised on behalf of the appellant that it was not the plaintiff's case that he would never work again, notwithstanding that he suffered significant diminution in work capacity, particularly in relation to work that requires considerable physical effort. Mr Gillies pointed to the fact that on the evidence, it was obvious that the plaintiff was a highly motivated young man who was anxious to get back into the work force. That he may be capable of achieving that wish, so it was said, was illustrated by the fact that he had found employment with American Action in about mid-1998 for approximately three months. The plaintiff's work with that firm included spray painting, panel beating, fibre-glassing, rust repairs and welding. Such work, Mr Gillies submitted, required some physical exertion with which the plaintiff was able to cope albeit on the basis that he had to take a five-minute break every half hour or so. Mr Gillies also pointed to the plaintiff having undertaken a bar course at an hotel. Thus, it was contended on behalf of the appellant, the plaintiff was employable and had reasonable prospects of obtaining some employment during his next 40 or more years.

As to his impaired sexual function, it was pointed out on behalf of the appellant, that this did not preclude him from having sexual intercourse and that he had not lost the capacity to obtain an erection, notwithstanding that its rigidity was only 80 per cent of what it was before the accident. Consequently, it was argued for the appellant, the residual injuries of the plaintiff were essentially orthopaedic albeit augmented by sexual dysfunction and other problems. It was contended that an award of damages in the range of $230,000 for pain and suffering in respect of such injuries is unreasonably excessive and that such an amount should be confined to cases where the plaintiff has suffered substantial diminution in mobility arising from brain damage or quadriplegia.

In my view, however, it was well open for the jury to conclude on the evidence that the injuries in question incapacitated the then 20-year-old plaintiff physically, emotionally and psychologically to a much greater extent than was put forward on behalf of the appellant and that such incapacities will materially and detrimentally affect the quality of his life in the future. He will continue to suffer significant pain and discomfort, is unlikely to obtain meaningful long-term employment and will be denied the full enjoyment of social and sexual relationships and other aspects of life.

That the plaintiff experienced severe pain as well as terror during the accident was not challenged by the appellant. The backhoe fractured his pelvis and sacrum and remained on top of him for 15 to 20 minutes at the end of which it was lifted a couple of inches. He nevertheless remained pinned down by it for another 45 minutes or so before the machine was pulled away and he was taken to hospital. As well as suffering extreme pain during that episode, he was terrified because he could not be certain whether he had lost his legs by reason of the accident; he could not see from his waist down because the machine blocked his view. Moreover, he had to watch diesel fuel pouring out of it, hoping that it would not ignite. At the hospital he had to endure further physical and psychological pain. He was subjected to painful tests and was confined to the intensive care unit for about three weeks. Four pins, two on either side of him, were placed through the pelvis between two layers of bone and an A-frame was placed on top to hold them in position. He had to stay in the one position for almost three months during which he often had to experience extreme pain, particularly when he was bumped and as a consequence, the pins pulled on the bone. He suffered from bed sores and other associated discomforts such as having a catheter in his penis for approximately two weeks, bad constipation, often being without bowel for a week or more, nightmares, etc. He was initially given morphine which relieved the pain, but he experienced hallucinations as a result and was therefore taken off it. The substitute medication gave him relatively little pain relief and ultimately, when he was able to stand on his legs, he described the pain as if razor blades had been pumped through his veins.

On the physical side, the accident has left him with one leg shorter than the other which contributes to his back pains which, on occasions, are so severe that he is required to lie down in order to obtain relief. He also continues to experience pain in his hip, buttocks and groin. Parts of his left leg have almost no sensation, he cannot walk in bare feet, he cannot run or even walk for any distance and when he does walk, he does so with a limp. He cannot stand or sit for any periods without experiencing great discomfort and pain. Thus, he cannot go to the pictures, drive a car for any length of time, go bushwalking or participate in any sporting life as he used to do and, but for the accident, he may have continued to enjoy. The accident has also left the plaintiff with sexual dysfunctions which are likely to continue - a lessening sensation in his left testicle, difficulty in achieving a full erection, on occasions being unable to complete the sexual act and general loss of interest in sexual activity.

On the employment front, the evidence was that notwithstanding the plaintiff's keenness to return to work, given his disabilities and lack of work skills, the prospect of obtaining employment in the future other than the occasional work, is small. The medical evidence was that the plaintiff could not work at jobs which require him to stand on his feet for long periods. Similarly, the medical opinion was that he would be incapable of performing unrestricted bar work or work as a driver where he would be required to be seated for lengthy periods or to drive a machine such as a backhoe which vibrates and which calls for the use of a heavy clutch. In short, the medical evidence justifies the conclusion that the plaintiff is unlikely to gain long-term employment. Some confirmation of this pessimistic outlook was reflected in the plaintiff's experience since the accident. He put into effect his eagerness to return to work by visiting and telephoning prospective employers, sometimes to the point of making a nuisance of himself, but with no result. Moreover, the Industrial Rehabilitation Service to which he was sent and which interviewed him and prepared his CV, could not find him employment. He could not even hold down the job which he secured at American Action because he had to take the breaks to which I have referred earlier.

The appellant sought to bolster its case by pointing to the plaintiff's evidence that he had a positive outlook on life and on his own situation and was keen to return to work. It was submitted that this was a strong indication that the plaintiff's injuries have stabilised and that he was likely to lead a reasonably normal life in the future. It is true that the plaintiff gave evidence which put a positive gloss on his present situation and the future. But such evidence cannot be looked at in isolation from the medical evidence and that of Mr Moss, a neuropsychologist, who has a special interest in the field of rehabilitation and who treated the plaintiff. He spoke of the plaintiff's psychological disorder (which was brought on by the accident and the injuries). At the very least, it was open for the jury to have acted on that evidence. Mr Moss swore that the plaintiff was suffering from a moderately severe major depressive disorder which was being experienced against the background of a post-traumatic stress disorder which was chronic. He explained that in his view, the plaintiff significantly understated his problems thereby denying reality in order to feel less distress. As a consequence, he was prone to treat what are really small gains, as huge gains. Mr Moss expressed the view that the plaintiff's adjustment was basically fragile and placed him at considerable risk in managing the inevitable further personal and social challenges that were ahead of him. One of his concerns was that the plaintiff had suicidal thoughts which were at the back of his mind. He felt that "given sufficient concrete, practical obstacles that are likely to be placed in [the plaintiff's] way in the future, he remains vulnerable to those suicidal ideations and suicidal thoughts". His conclusion in relation to the plaintiff's ability to find work was that "given the extent of his physical injuries, his current psychological condition and level of support he is currently receiving, together with his lack of work-related skills, he remains most unlikely to be able to gain employment, particularly in an increasingly competitive job market". Not surprisingly, the plaintiff pointed out in argument that this vital opinion evidence was not challenged by the appellant during the hearing although in his final address, counsel for the appellant submitted that the jury should give that evidence little weight because it was not consistent with the plaintiff's own assessment of himself. It was obviously open for the jury to accept Mr Moss's assessment of the plaintiff.

In his final address, the plaintiff's counsel invited the jury to award his client damages for pain and suffering in an amount between $200,000 and $300,000. The appellant's counsel, on the other hand, submitted that the figure should be in the range of $100,000 to $120,000, but he made no complaint to his Honour, nor did he suggest to the jury, that the figures mentioned by the plaintiff's counsel were so excessive that on the evidence it would be unreasonable for the jury to award damages in that range.

The law to be applied in an appeal of this nature was recently canvassed by Charles, J.A. (with whom the President and Ormiston, J.A. agreed) in Pilkington (Aust.) Ltd. v. Verka Dervisovski, unreported, 1 February 1996. His Honour noted that the test which is to be applied to determine whether a jury's verdict as to quantum was manifestly excessive, has been variously stated. As his Honour pointed out, the formulation derived from the judgment of Taylor, Menzies and Owen, JJ. in Australian Iron and Steel Ltd. v. Greenwood [1962] HCA 42; (1962) 107 C.L.R. 308 at 311 is that the appellant must demonstrate that, on the view of the evidence most favourable to the plaintiff, the verdict was so high that no reasonable jury properly instructed and confining itself to matters relevant could have arrived at that figure. A like test was applied in Coyne v. Citizen Finance Ltd. (1991) 172 C.L.R. 221 at 227-8, and in Carson v. John Fairfax & Sons Ltd. [1993] HCA 31; (1993) 178 C.L.R. 44 at 61. In Calin v. Greater Union Organisation Pty. Ltd. [1991] HCA 23; (1991) 173 C.L.R. 33, however, Mason, C.J. and Deane, Toohey and McHugh, JJ. seem to have enunciated a different test. At 41 their Honours said that:

"The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach."

In Pilkington, Charles, J.A. queried whether the test in Calin was confined to the situation where the appellate court deals with a jury verdict on liability only. The case itself, of course, was concerned only with a jury verdict on liability and the authorities to which their Honours referred in the context of formulating their test, all arose out of jury verdicts on liability. Moreover, it seems that the wording of the test in Calin was taken directly from one of those authorities, namely, The Metropolitan Railway Co. v. Wright (1886) 11 App.Cas. 152 in which Lord Herschell, L.C., said at 155 that the relevant test was "whether the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust".

In any event, it is doubtful whether there is a material difference between the test enunciated in Calin and that which was stated in the earlier authorities. The earlier case did not suggest, for example, that the totality of the relevant evidence should not be looked at for the purpose of determining whether a reasonable jury could have awarded the damages in dispute. Thus, for example, in Coyne, Toohey, J. (with whom Dawson and McHugh, JJ. agreed) said at 239 that in determining whether the jury's verdict on damages is excessively high or excessively low, the appellate court should "first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict returned, and then ask whether, in the light of that evidence, the award is sustainable". Similarly, the judges constituting the majority in Calin, did not suggest that in examining this issue the court should not look at the evidence from the point of view most favourable to the plaintiff. That Calin did not enunciate a new test was the view expressed by Kirby, P. (with whom Mahoney and Clarke, JJ.A. agreed) in Metro Meat (Cootamundra) Ltd. v. Ricardo, unreported, Court of Appeal (N.S.W.), 2 November 1993. In Keremelevski v. Payless Superbarn (N.S.W.) Pty. Ltd., unreported, Court of Appeal (N.S.W.), 4 April 1995 at 8, the President confirmed that view and his rejection of the contention that the approach laid down in Calin involved a more active role for appellate supervision of jury verdicts than had previously been understood in the earlier cases. The President went on to say that "Calin does not enunciate a new test, although there was perhaps a slightly stronger emphasis in that case upon the duty of the court to consider the evidence in its totality".

For present purposes, however, it is not necessary to determine whether Calin formulates a test which is materially different from that stated in the earlier cases or whether the decision is to be confined to appeals dealing with jury verdicts on liability. This is because on any view of the stated formulations of the relevant test and having regard to the evidence to which I have referred, it was open to a reasonable jury which was properly instructed and which acted on the relevant evidence, to award the plaintiff damages for pain and suffering in the sum of $230,000. Put another way, having regard to the evidence, the verdict is not such that no reasonable jury could have reached it.

At the hearing of the appeal, counsel for the appellant accepted that the plaintiff was entitled to $32,105 in respect of past loss of earnings. The complaint was that the award for future loss of earnings of approximately $485,000 was unreasonably high. It was the appellant's contention that any award to this plaintiff in excess of $300,000 for loss of future earnings was too high. Mr Gillies initially submitted that the plaintiff's future loss of earnings should have been calculated as follows, namely, the plaintiff's earnings as a backhoe operator or equivalent of $473.60 (a figure agreed between the parties) should have been multiplied by the (agreed) multiplier of 1,257.6 which would have produced, in round terms, the sum of $595,599. From that figure, he submitted, there had to be deducted an amount for vicissitudes of life and contingencies, including the plaintiff's prospects of obtaining employment. I have already mentioned the appellant's contention was that the plaintiff had a reasonable prospect of obtaining employment during the next 40 years or so of his life notwithstanding that the work would necessarily be limited to that which did not require significant physical exertion. Hence, the appellant argued, the plaintiff's (notional) future earnings of $595,599 should be discounted to 40 per cent, namely, to a figure of $238,239. In addition, since the plaintiff was entitled to $32,105 in respect of past earnings, his total entitlement for pecuniary loss was $270,344. Mr Gillies submitted that judged against that sum, the award of $517,000 was manifestly excessive.

Mr Gillies later accepted that in addition, the plaintiff was entitled to claim a similar proportion of the agreed (discounted) sum for superannuation which will be lost to him by reason of the accident. Thus, if he were treated for relevant purposes as a backhoe operator, his (agreed) discounted superannuation entitlement would be $100,298. If that were to be discounted by the same amount as the notional future earnings, namely, to 40 per cent, the plaintiff's loss of superannuation entitlement would be approximately $40,000. On that basis, even on the appellant's figures, the plaintiff would have been entitled to almost $280,000 (namely, $238,239 plus $40,000) by way of loss of future earnings. In addition, he would be entitled to $32,000-odd for past loss of earnings, thereby bringing his entitlement for loss of earnings to approximately $312,000.

In a further argument which was aimed at demonstrating that the amount awarded under this head of damages was unreasonably excessive, the appellant contended that the jury's award, in effect, assessed the plaintiff's loss of earning capacity at $385 (per week) which, it claimed, was over 80 per cent of the relevant weekly earnings of $473.60. It was submitted that this was equivalent to saying that the plaintiff was likely to work for only 20 per cent of the next 40 years or more, which was an unrealistic and unreasonable assessment of the plaintiff's prospects of future employment. The appellant arrived at the figure of 80 per cent by dividing the amount of $485,000 awarded to the plaintiff for loss of future earnings, by 1,257.6, thereby producing $385 which, on an arithmetic calculation, is 80 per cent of $473.60. The problem about that calculation is that it does not set off two figures of a like kind - the sum of $385 includes a component for superannuation entitlement that was lost to the plaintiff, whereas the sum of $473.60 does not include such a component. The latter figure represents no more than wages paid to a backhoe operator or equivalent worker. If the figures are adjusted to take account of the loss of superannuation entitlement, the jury's assessment of the plaintiff's loss of earning capacity in terms of lost wages would be significantly less than 80 per cent of the weekly wage of $473.60; it would be closer to 60 per cent of that figure. One way of undertaking this calculation is to deduct from the amount of $485,000 (which includes a superannuation entitlement component) the amount of that component, namely, $100,000, being the $100,298 referred to earlier, rounded off. The remaining figure of $385,000 would represent the notional loss of future wages by the plaintiff. If that amount (rather than the $485,000) were divided by the multiplier, the loss of future (weekly) wages would be a little over $300, which is approximately 63 per cent of $473.60. Thus, on the appellant's own figures, the jury did not assess the plaintiff's future loss of wages as a backhoe operator at as high an amount as was contended for by the appellant.

But in any event, it was open for the jury to assess the plaintiff's loss of future earnings on a basis different from that contended for by the appellant. For example, it was open for them to have made the calculation on the basis that, but for the accident, the plaintiff would have succeeded ultimately in obtaining a trade and, therefore, assess his loss of future earnings not on the basis of the wages of a backhoe operator, but on the basis of the weekly wage of a bricklayer or pastry chef. Any such calculation would almost put beyond doubt the appropriateness of the award. In my view, it was open for the jury to consider that the plaintiff would have secured a trade at some stage in the future, but for the accident. First, there was evidence before them that since school days, he had shown initiative in gaining employment. They also had before them evidence that the plaintiff was persistent when he set his mind to obtaining employment. I have already mentioned that after the accident he persisted with his application for employment with some employers to the extent of becoming a nuisance. Moreover, the plaintiff did not merely talk about his ambition to become an apprentice; the evidence was that he had taken the initial steps aimed at securing an apprenticeship, albeit without success to that point in time. Furthermore, the jury saw the plaintiff in the witness box and it was open for them to conclude that he was the type of person who probably would have successfully pursued his ambitions in that regard.

That it was open for the jury to calculate the plaintiff's loss of future earnings on the basis that, but for the accident, his earnings would have been equivalent to those of a tradesperson, was virtually conceded by the appellant at the trial. By agreement, the parties put before the jury a document, being Exhibit "J", which set out, inter alia, the agreed earnings and superannuation benefits not only of a backhoe operator, but also of a bricklayer ($801.30). It was common ground, therefore, that it was open for the jury to base their calculations on any of those figures. It is true that the appellant's counsel sought to persuade the jury to disregard them on the ground that they were not helpful, but it was never suggested that the jury could not properly act on them. Had they acted on the higher earnings figures, as was open for them to do, this award of $485,000 for the plaintiff's loss of future earnings could not be regarded, in my view, as unreasonably high.

In all the circumstances, therefore, in my view, the jury's award of damages for the plaintiff's pecuniary loss arising from the accident was not manifestly excessive.

It follows from what I have said, that in my view, the appeal should be dismissed.

The formal order of the court will be that the appeal is dismissed with costs.

At a glance

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Decision date

Before

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Judgment (30 paragraphs)

Parties