Damages - Personal injuries sustained on a number of occasions - Onus of establishing effective contributing causes - Appeal turns on alleged errors of fact - Various aspects of award of damages challenged - Allegation of bias by trial Judge - Claims for past hospital expenses when accounts issued more than 6 years after treatment - Turns on own facts

Second Respondent : Mr M H Zilko SC & Ms D J Davies

Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237

Housing Commission of NSW v Tatmar Pastoral co Pty Ltd [1983] 3 NSWLR 378

Klahn v Audeh [2001] WASCA 336

Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245

Selvanayagam v University of the West Indies [1983] 1 ALL ER 824

Western Australia v Watson [1990] WAR 248

1 MURRAY J: This matter came before Nisbet DCJ as an assessment of damages. Liability was not in issue. His Honour assessed the damages at $57,698, awarding costs to the appellant to 22 January 2000 and thereafter awarding the costs to the respondents. The hearing before his Honour took three days on 25-27 July 2001.

loss of chance of past and future employment $ 5,000

3 I do not propose to set out the grounds of appeal, many of which are not truly grounds of appeal at all. There are fifteen of them, although at the hearing of the appeal the appellant abandoned grounds 8, 12.2 and 14 and particular (g) to ground 15.

4 It is convenient to deal with that ground immediately. It alleges that Nisbet J "demonstrated a reasonable apprehension of predecision adverse to the appellant". A number of particulars are given, generally concerned with comments made by his Honour during the trial, exchanges of questions and answers between his Honour and expert witnesses, his ruling denying the appellant leave to call a further medical practitioner, permitting the respondents to amend their defences and permitting the respondents to adduce evidence from medical practitioners, the substance of which it is alleged had not been previously disclosed to the appellant's solicitors.

5 This is a ground which, if it was to be made out, required the appellant to demonstrate that the appearance of bias on the part of the trial Judge was such that a fair-minded lay observer might reasonably believe that his Honour might not bring an impartial and unprejudiced mind to the task of assessment with which his Honour was confronted: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. And yet counsel for the appellant made no submissions in support of this ground but simply observed in his outline of submissions, without providing any material in support of the ground, that "the appellant is content to rely on the remaining particulars in support of the ground."

6 In my opinion, counsel may not properly proceed in this fashion in support of a ground such as this which impugns the apparent impartiality of the trial Judge. In my view such a ground should not be advanced unless it is supported by clear evidence worth the attention of an appellate court and I need only say that, having trawled through the evidence which might relate to the various particulars advanced in respect of this ground, I can find nothing of substance anywhere which might require this Court to consider whether there might be a reasonable apprehension of bias. I propose to say no more about ground 15.

7 The background circumstances out of which this case arises are as follows. The appellant was aged 53 when his case came before the District Court. He had worked in a variety of occupations in Europe before emigrating to this country in 1986. Here he followed the occupation of a motor mechanic in the course of which, on 21 December 1992, he injured his lower back. He did not work much thereafter. Finally, on 13 October 1994 he went to a construction site where the second respondent, a painting contractor who employed subcontractors, was working for the first respondent who was building a group of home units. Mr Stawarz thought that he might be able to provide the appellant with some work as a spray painter. While standing on a first floor balcony looking at the work being done, the appellant lost his balance and fell through a gap in railing attached to a scaffold. It is perhaps not surprising that under those circumstances liability was admitted.

8 Nisbet J reviewed the evidence given by the appellant and his wife as to the extent of his physical disabilities and the impact they had upon his pre-accident earning capacity. His Honour noted that a full picture of the appellant's pre-accident condition only emerged during cross-examination which particularly focused attention upon what the appellant had said or adopted as true in support of applications for a disability pension and appeals made in respect of that matter.

9 There were three conditions which were significant: the injury to the appellant's lower back sustained on 21 December 1992, added to which there was a degenerative condition of the spine, dermatitis which seems to have been difficult to deal with and was a recurrent problem which adversely affected the range of work the appellant could do, and epicondylitis, a condition which affected one or other or both of his elbows from time to time (sometimes called "tennis elbow"). As I have said, the appellant did little work after the accident on 21 December 1992 and, after his treating medical practitioner, Dr Prendergast, declared him unfit for work in May 1993, he did not work again.

" ... prior to his accident on 13 October 1994, the [appellant] had been certified unfit for work to varying degrees, that is to say to the extent that he was wholly incapacitated on occasion and on other occasions partially incapacitated, in respect of three work-related conditions, namely, dermatitis, epicondylitis and low back pain."

11 As to the extent to which these conditions in combination had an impact upon the appellant's pre-accident earning capacity, the trial Judge in effect noted that the appellant and his wife in evidence tended to minimise the effect of these conditions, whereas his Honour noted that when documents relating to his pension applications were put to the appellant, he accepted the contents to be true in the way they described his disabilities as being of substantial severity. The conclusion drawn by Nisbet J, which seems to me to be fairly open upon the evidence as a whole as I have reviewed it, was that:

"The contemporaneous records suggest that the plaintiff was incapacitated to a significant degree before his injury on 13 October 1994 and certainly to an extent greater than he suggested in evidence."

12 His Honour then reviewed the evidence of no less than seven medical practitioners who were called to discuss the appellant's condition both before and after the accident of October 1994. His Honour noted that Dr Prendergast was the only medical witness who had the advantage of seeing and treating the plaintiff both before and after that incident. To him had been put the opinion of Dr Delaney, a dermatologist, upon which Dr Prendergast was permitted to comment. Dr Delaney was not called initially but an application was made ultimately on behalf of the appellant to reopen his case to call that witness. That application was refused and the appellant complains that his Honour erred in doing so.

13 The issue of the contribution of the pre-existing occupational dermatitis to the final state of disability suffered by the appellant had been clearly pleaded by the respondents, together with the previous injury to the appellant's back in December 1992 and the pre-existing degeneration of his lower spine. The problem of dermatitis was referred to in numerous medical reports and certificates. The respondents objected to the additional witness being called. Nisbet J noted that he had clear evidence about the dermatitis and so this would be additional evidence related to that condition. Leave was required and his Honour was not persuaded that harm would be done to the appellant's case if it was refused, which it was. I am not persuaded that his Honour erred in this regard.

14 It is clear, I think, that Nisbet J considered that the appellant was unfit for work, at least until July 1994 and probably up to September 1994, as a result of his disabilities, although his Honour noted that Dr Prendergast was of the opinion that "the [appellant] was not excluded from seeking work of all types."

15 The medical practitioners were, of course, asked their opinion about the impact on the appellant's condition of the accident of 13 October 1994. All agreed that at that time the appellant suffered a very serious back injury. He was fortunate, some thought, not to have been rendered paraplegic by the fall but, his Honour noted, most of the medical practitioners were also agreed that the appellant had made a good recovery from this injury.

16 In relation to the evidence of the appellant and that of medical practitioners who gave evidence, there are numerous complaints in the grounds of appeal about the trial Judge's assessment of the appellant's credibility, his use of the evidence of what the appellant said or instructed should be said in the course of proceedings concerned with his efforts to obtain a disability pension, and the weight which Nisbet J placed on certain medical practitioners, particularly Dr Prendergast, and his failure to place weight on the views of others.

17 When dealing with such grounds of appeal, which I do not propose to set out or discuss in any detail, this Court is obliged to review the evidence bearing upon the trial Judge's findings about the relevant facts, particularly in this case those concerned with the pre-accident condition of the appellant and the extent to which the accident of 13 October 1994 produced additional compensable injury. In conducting that review, I remind myself that this Court is obliged to accord substantial weight to the decisions of the trial Judge about the credibility of witnesses, particularly the appellant and his wife. His Honour had the advantage of seeing those witnesses and hearing all their evidence. Nonetheless, to the extent that the grounds of appeal complain about the conclusions of the trial Judge in this regard, I have been obliged to read the evidence carefully to see if I can discern any ground upon which this Court ought to conclude that Nisbet J misused his advantage as the trial Judge. I can detect nothing of that kind.

18 Nor has a thorough review of the reports and evidence of medical witnesses of which, it seems to me as it seemed to Nisbet J, there was perhaps an over-abundance, produced any disquiet in my mind as to the body of evidence upon which the trial Judge chose to rely or about the conclusions his Honour drew in so doing. In particular, it seems to me that although Dr Prendergast naturally deferred on occasions to the greater expertise which specialist medical practitioners might have in relation to particular questions, his Honour was entitled to have regard to the fact that Dr Prendergast was the appellant's treating general practitioner who had a close association with him and his various complaints and disabilities over the whole of the relevant period leading up to and after the accident in October 1994.

19 I do not pause to set out the authorities which guide an appellate court in conducting an appeal of this kind and in the review of the evidence to which I have been referring generally. The current state of the authorities is, in my respectful opinion, very helpfully discussed and explained by Kirby J in State Rail Authority of NSW v Earthline Constructions (in liq) Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306.

20 The relevant question of causation, which Nisbet J recognised was before him, was the extent to which the appellant's post-accident condition and disabilities were the product of the respondents' negligence on 13 October 1994 or were caused quite independently by conditions with which the appellant was already afflicted at that time. As I have said, Nisbet J recognised that the appellant had suffered very serious injuries in October 1994. His Honour appreciated therefore that an evidentiary onus fell upon the respondents to show the extent to which the appellant's post-accident disabilities were attributable, not to that accident, but to other prior circumstances. Numerous authorities discuss the approach to be taken and Nisbet J referred to a number of them, quoting from the decision of the High Court in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 and referring also to the decision of this Court in Western Australia v Watson [1990] WAR 248 at 310 - 313. His Honour noted, with respect correctly, that the respondents were entitled to rely upon any portions of the evidence, whether given by witnesses called by them or by the appellant, to discharge the evidentiary onus.

21 Nisbet J relied upon a coherent body of medical evidence, including that of Dr Prendergast. He noted that by August or September of 1997 that witness was of the opinion that the appellant's subjective clinical incapacity, particularly associated with his back, was about the same as it had been prior to the accident. That also, his Honour noted, was the view of a number of the medical witnesses upon which he relied. But it should not be overlooked that when cross-examined for the appellant about his views concerning the 1997 state of the appellant, Dr Prendergast made it clear that he was speaking purely of functional capacity and said that he did not resile from the opinion expressed in a report dated 12 February 1996 when, writing to the appellant's solicitors, he said that following the accident of 13 October 1994 and the fracture of the vertebra which occurred at that time, the appellant's:

" ... pain, disability level and employment prospects have really taken a dive. Certainly the extent of the L1 vertebral fracture involving the pars of L1 and L2 with a loss of spinal canal diameter of 50% means he is stuck with persistent pain and rest, sitting and even with light duties his pain will be a real problem. Besides this fracture will inevitably lead to degenerative osteoarthritic changes and this will cause long-term pain and suffering."

The doctor concluded his report by saying that the appellant was certainly unfit for work "on a very long-term basis."

22 Nisbet J particularly mentioned only that Dr Prendergast had given evidence that there was an additional degree of unemployability in the plaintiff for about a year after the 1994 accident and he referred to the view expressed by the witness Professor Harper, who considered that the appellant was not a candidate for obtaining a job on the open job market before October 1994 and that was the position after that accident. Professor Harper agreed with the trial Judge, who endeavoured to summarise his opinion by saying that he was of the view that the appellant had gone from having a bare chance of getting work before October 1994 to having no chance afterwards. His Honour said that the evidence established:

" ... that insofar as the [appellant's] incapacity for employment is concerned, the injury of 13 October 1994 had the effect of reducing the potential perimeter of employment available to the plaintiff only marginally such that it could be said as it was (in effect) by Professor Harper that he went from a man having very little prospect of employment to one having no prospect of employment."

23 There was evidence that prior to October 1994 the appellant might have secured and been able to perform a range of work which involved no heavy manual work and which, to avoid exacerbating the dermatitis, would be described as work of a relatively clean character. Positions such as those of a service station driveway attendant, a courier driver, a clerk, and a gatekeeper were suggested. The appellant was seeking work which might have occupied him for a relatively few hours each week. Even giving that evidence its full weight, there was evidence which was accepted by Nisbet J which tended to emphasise restrictions on the appellant's work capacity. His pre-existing earning capacity had to be regarded as extremely limited. In my respectful opinion, the trial Judge did not err in so regarding it and there was no doubt that such earning capacity as previously existed had after and as a consequence of the respondents' negligence on 13 October 1994 shrunk to nothing.

24 As to his Honour's assessment of damages, ground 10 complains that the allowance of $50,000 for general damages for pain and suffering and the loss of amenities of life was manifestly inadequate. It was said in argument that such an allowance must effectively have been made on the erroneous basis that the appellant had made a full recovery from the consequences of the accident in October 1994 by the time of the trial, but I think that is not the case. After this accident, little could be done to assist the appellant. The trial Judge found that his convalescence and rehabilitation were long and slow but ultimately the evidence supported the trial Judge's conclusion that the appellant "made a good recovery and appears to have little in the way of continuing symptoms which may be directly attributable to this injury". His existing symptoms of pain in his legs, low back pain and referred pain would then be attributable to the 1992 low back injury. However, without detailing the particular matters to which his Honour gave consideration, he concluded that although the appellant had made a good recovery, he did sustain "a serious, near catastrophic injury to his spine". Given the appellant's age and the likely sequelae, both past and into the future, of the October 1994 injuries, I am unable to conclude that such an allowance for non-pecuniary general damages is so low as to compel intervention by this Court.

25 Ground 11 complains about the inadequacy of the award of $5000 in respect of loss of earning capacity or, as the trial Judge put it, for the "loss of the chance of past and future employment". The claim pressed by the appellant at trial was based on a pre-accident earning capacity of between six and eight hours a week at the statutory minimum rate of pay in WA. Interest was sought in respect of past loss and the future loss for the 12-year period from trial to age 65, it was suggested, might be reduced for contingencies by no more than 25 per cent. The final figure calculated on that basis for past and future loss of earning capacity was suggested to be just under $66,000. It was, in my opinion, abundantly clear that no such claim was established by the evidence.

26 The trial Judge took a similar view. His Honour appears to have accepted that prior to the accident the appellant was looking for employment, but he commented that, "The fact that the [appellant] was looking for employment does not mean that he had any capacity for employment." There was justification I think for the view that since 1992 the applicant's capacity to work as a motor mechanic, the job for which he was qualified, was closed to him, not only because of his back injury, occupational dermatitis and epicondylitis but also because of his lack of language skills, his age (46 years as at October 1994) and what the trial Judge referred to as "the other attendant social factors then pertaining to his condition".

27 Nisbet J expressed his final conclusion as follows:

"In the end result I am quite unpersuaded that the [appellant] has lost any work capacity in consequence of the injuries he sustained on 13 October 1994. Nevertheless the medical evidence does disclose that he lost what remaining chance he had of obtaining employment and in these circumstances he is entitled to be compensated for the loss of the chance. For all the reasons I have outlined I think that the award in this regard must be modest and I allow $5000 under this head."

28 In my respectful opinion, the approach is right but the result is too low. It was appropriate to make a global award to cover the period of some 19 years to age 65. The evidence did not support the making of calculations of a conventional kind proposed by the appellant but there were a number of relatively clean sedentary occupations, particularly of a part-time character, which it appears that prior to the accident the appellant had a chance of obtaining, even if it was the case, as Nisbet J commented, that the appellant's best chance of obtaining such employment might have been through his contacts in the Polish/Australian community of which he was a member. In other words, it seems to me that there was a chance of employment which was not relatively valueless as the trial Judge supposed, limited though its value was. It seems to have been accepted that such chance as there was was now lost as a result of the respondents' negligence. I agree that a modest global award was appropriate. Doing the best I can upon the evidence led at trial, I am inclined to the view that the appropriate award would have been a sum of $22,000.

29 Ground 12 is a complaint that the award of $1248 for gratuitous services was inadequate. This was a claim for past and future gratuitous assistance and relied upon the evidence of Mr Batalin in particular among the medical witnesses, together with that of the appellant and his wife. The trial Judge thought, it would seem, that in relation to this issue there was no reason not to accept the evidence of the appellant and his wife, but his Honour commented that they "found it difficult to distinguish between those tasks which Mrs Lyszkowicz would have performed for [the appellant] in the ordinary course of daily life with its attendant ups and downs and periods of ill-health arising from his condition before October 1994, and those different things peculiar to the injuries sustained in October 1994."

30 So much may be accepted when one reads their evidence, and it affected his Honour's conclusion about a particular aspect of this claim which was that for the foreseeable future it was said that assistance would be required with cleaning and ironing tasks. There was evidence that the appellant had, since he separated from his wife in 1999, engaged a lady to do cleaning and ironing at a cost of about $10 per week. But the trial Judge was not persuaded that the need for these services arose even partly by reference to the injuries sustained on 13 October 1994 as opposed to his condition at and prior to that time and so, in my opinion, the complaint made that there was no allowance for this aspect of the claim cannot be sustained.

31 There was a claim for assistance rendered to the appellant by his wife for the initial period while he was in hospital. That was disallowed and is no longer pursued. In respect of the period after the appellant's discharge from hospital, the claim was of a conventional kind, subject to the evidentiary difficulty to which I have referred in respect of services rendered to the appellant by his wife during the period of their relationship prior to their separation in 1999. However, Nisbet J said that based on the evidence of Dr Prendergast, that the appellant "had an element of unemployability for about 12 months after his 1994 accident before he recovered to the extent that he was beforehand, the allowance should be limited to this period."

32 I find it difficult, with respect, to follow the connection between unemployability which effectively continues and the need for gratuitous services. If one was to rely on the evidence of Dr Prendergast entirely, the relevant conclusion would seem to me to be that by about August or September 1997, some three years after the accident, the appellant had recovered to the point where his subjective clinical capacity in his back was about the same as it was prior to the accident. On this basis it would seem to me to be reasonable to conclude that the need for gratuitous services thereafter might be said to be related to the pre-existing level of incapacity of the appellant and not to the effects of the October 1994 accident. The relevant period would appear to be one of three years.

33 The appellant's case at trial was put in respect of this period upon the basis that upon the appellant's discharge from hospital, for a relatively short period of a few months, his need for assistance was more intensive as he re-mobilised himself, with the difficulty that his spine had not yet assumed a stable condition. I have perused the evidence in respect of this period and am unable to find any particular support for the appellant's proposed calculation that gratuitous services were required for eight hours a day seven days a week for a period of three months.

34 Thereafter, the claim which was made was on a basis which appears to have been accepted by Nisbet J, that after allowing for the fact that the assistance rendered to the appellant was overwhelmingly of a kind which might be expected as between husband and wife, there remained some two hours a week at the rate of $12 per hour. The calculation made by the trial Judge for the period of a year which he allowed was made using these figures. In the result it seems to me that the appellant succeeds in the claim that the award in respect of past gratuitous services was inadequate. In lieu of the sum of $1248, I would allow three times that amount and round it off to $3750.

35 In respect of this aspect of the award, his Honour allowed interest at the rate of 6 per cent per annum for the period to the date of the award "since those gratuitous services were no longer attributable to the negligence of the defendants". Using the same calculation and applying it to a period of four years at the flat rate of 6 per cent results in an adjustment for the award of interest from $450 to the sum of $900.

36 Finally, ground 13 complains that Nisbet J erred in refusing to award damages "for proven special damages in respect of hospital charges" totalling $13,936. That sum is made up firstly of an account for $3216 for accommodation at Sir Charles Gairdner Hospital from 13 October to 19 October 1994, a period of six days at the rate of $536 per day. It is evident that the account was genuinely raised, but only on 24 July 2001 at the request of the appellant's solicitors. There was also a bundle of accounts for the appellant's accommodation and treatment at Royal Perth Hospital from 19 October to 8 November 1994, a period of 20 days at the same rate of $536 together with out-patient charges in respect of services provided by the hospital on 16 December 1994, 27 November 1995 and 15 January 1998. The total charge is $10,960. Each of these invoices is dated 20 July 2001 and, as I understand it, each was again generated by the hospital at the request of the appellant's solicitors.

37 The total of the bundle of accounts comes to $14,176. There is no indication that any part of this sum has been paid. The amount referred to in ground 13, the sum of $13,936, is the figure which results by deducting the sum of $240 from the total of the accounts rendered. That sum corresponds to the out-patient charges made by RPH for 16 December 1994, 27 November 1995 and 15 January 1998. I can only presume that the claim for these sums is not pursued. However that may be, one can only speculate as to the reason why it would appear that the hospitals rendered no charges for the accommodation and services provided in October and November 1994 until, in July 2001 immediately prior to the trial, they were invited to do so by the appellant's solicitors.

38 The reason why Nisbet J made no allowance for these accounts in the award of damages is:

"As is disclosed on their face these accounts were not rendered to the [appellant] until well after the limitation period expired, and then only on the request of his solicitors. Clearly if the hospital has decided to institute proceedings for the recovery of these sums the plaintiff would be obliged in mitigation of his loss to plead the Limitations Act and such a plea would have been an absolute bar to recovery and he would not have sustained any loss."

39 In my respectful opinion, the reasoning is fallacious. Neither party was able to cite any relevant authority, but as a matter of general principle it seems to me that these accounts represented a liability or loss sustained by the appellant which was directly caused by the respondents' negligence and recoverable from them. There is no dispute that the services in question were rendered by the hospitals and there was a liability to pay. The fact that the accounts were not generated for one reason or another in a timely way seems to me to be irrelevant. This is not a case where a loss which might have been occasioned by a plaintiff has been avoided.

40 Nor, in my opinion, can it be the case that the damage which has clearly been sustained may be rendered one for which no compensation is payable because the appellant might have a capacity to avoid claims for payment made by the hospitals on the ground that they are time-barred.

There is no compulsion to plead such a defence and the reasonable response of the appellant, the accounts now having been generated and the demand for payment having been made, would be to pay for the services he received. It can, in my opinion, have nothing to do with the appellant's obligation to take reasonable action to mitigate his loss that he might in future have the capacity to refuse to pay and, if sued, to plead that the hospitals' claims were time-barred.

41 I would therefore allow this appeal, set aside the judgment of the District Court and substitute an award of damages made up as follows:

In the result, the damages awarded by the District Court would be increased by the sum of $33,888.

42 ANDERSON J: The rule that the assessment of general damages for personal injury must be a rational process not merely intuitive (Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 per Stephen J at 149) means that there must ordinarily be a separate examination and evaluation by the court of trial of each of the distinct ways in which the defendant's tortious conduct has harmed the plaintiff; and the assessment of the plaintiff's loss must ordinarily be expressed in terms of individual amounts allocated to the particular heads of claim: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 571 - 572. However, it is still the law that the award of damages is a single award, not a series of discrete awards under particular heads: Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 per Windeyer J at 505; Gamser v Nominal Defendant (loc cit); Paul v Rendell (1981) 55 ALJR 371 at 376 - 377; Villasevil v Pickering [2001] WASCA 143; [2001] 24 WAR 167 at 172. The overall assessment is a discretionary judgment as to the amount which the defendant should pay to compensate the plaintiff for all of the harm caused by the defendant's tortious conduct. A plaintiff who brings an appeal against such a discretionary judgment on the ground that the amount awarded is not enough will not necessarily succeed by showing that one or more heads of claim has been underestimated. Notwithstanding that there may have been an undervalue of some items of

loss, the global award may still be within the range of a proper exercise of discretion. It is the adequacy of the total amount of damages awarded which is the "ultimate question": Sharman v Evans (supra) per Gibbs and Stephen JJ at 589.

43 In this case, the learned trial Judge proceeded in the conventional manner to deal with the heads of claim put forward by the appellant and to make a separate monetary evaluation of each of them and he concluded that there should be an award of $57,698 made up as follows:

Loss of chance of past and future employment $ 5,000

44 The award with respect to the first three heads of claim is challenged as being inadequate. In addition to the above items of loss the appellant claimed special damages in the form of Royal Perth Hospital and Sir Charles Gairdner Hospital accounts totalling $13,936. This claim was disallowed and this is challenged by ground 13.

45 There would appear to be little controversy about the following facts. The appellant was of the age of 53 years at trial, having come to Australia from Poland some 15 years previously. He had qualified as a motor vehicle mechanic in Poland and there is a history of full-time employment in Poland and Germany in that trade and also as a taxi and truck driver. He promptly obtained employment in Western Australia as a motor mechanic and worked full-time for the same employer until about April 1993. He has had little or no employment since leaving that job. The accident which gives rise to the case now under consideration happened on 13 October 1994, when the appellant was at a building site in the hope of obtaining employment as a spray painter subcontracting to the second respondent, Mr Bogdan Stawarz, a painting contractor with whom the appellant had become acquainted through his membership of the Polish Club. While he was having a look around one of the upper levels of the structure, he fell to the ground onto his back from a scaffold or work platform through a height of about three metres, in circumstances in which both respondents admitted liability for negligence.

46 The appellant sustained a serious spinal injury, described in one of the medical reports as "a burst crush fracture to the L1 vertebral body, with spinal canal narrowing, and a fracture to the left lamina arch at this level". The spinal canal narrowing was caused by a fragment of the vertebral body protruding into the spinal canal. There was a body of medical evidence to the effect that the appellant was fortunate not to have been made paraplegic by this injury. He was hospitalised for 26 days and there was a lengthy period of convalescence and rehabilitation. The appellant made a good but not complete recovery. He is not now employable. There is no realistic prospect that he can return to any form of remunerative work.

47 It was the appellant's case that, at the time of his accident on 13 October 1994, he had a significant earning capacity and was about to start work with Mr Stawarz as a subcontractor. It was the respondent's case that the appellant had no earning capacity and has not suffered any economic loss from the injury sustained on 13 October 1994.

48 In order to understand why this issue dominated the trial, it is necessary to go into the facts a little further. During the course of the appellant's employment as a motor mechanic, he had sustained a low back injury on 22 December 1992. This injury incapacitated him to some extent, at least to the extent that he needed extra assistance to carry out his work. According to the appellant, this did not suit his employer, resulting in him being dismissed from his employment in about April 1993. It appears that he made no claim for workers' compensation, although there are some workers' compensation documents amongst the exhibits. Perhaps a claim was made but not pursued. At all events, the appellant started on a sickness allowance under the Social Security Act 1991 (Cth) in May 1993, shortly after his dismissal, and he remained on a sickness allowance for some time (until May of the following year, I think) and progressed to a disability pension for a while and, finally, he went on to unemployment benefits in the form of a job search allowance. There is evidence that he did, in fact, actively seek employment, always informing his prospective employers of his back condition. His bad back was not the only physical impairment from which he suffered at the time of the accident. The trial Judge found, and there was evidence to support the finding, that the appellant had chronic occupational dermatitis of the hands, for which he was receiving medical treatment by his general medical practitioner and for which he had been seen by at least one specialist. There is evidence that this was a serious and incapacitating condition, at least at times. He also suffered from epicondylitis, or "tennis elbow", in both elbows, which affected his capacity to use some items of mechanical equipment; and he had a troublesome duodenal ulcer.

49 The learned trial Judge found that at the time of the accident the appellant was practically unemployable with only a bare chance of obtaining employment and that the injuries sustained in the accident deprived him of no more than that chance. This finding was expressed in the following terms:

"52. In the end result I am quite unpersuaded that the plaintiff has lost any work capacity in consequence of the injuries he sustained on 13 October 1994. Nevertheless the medical evidence does disclose that he lost what remaining chance he had of obtaining employment and in these circumstances he is entitled to be compensated for the loss of the chance. For all of the reasons I have outlined I think that the award in this regard must be modest and I allow $5000 under this head."

50 By ground 11 of the grounds of appeal the appellant pleads that the award of $5000 under this head was "a wholly erroneous estimate of the appellant's (plaintiff's) loss of earning capacity".

51 I would uphold this ground of appeal for the following reasons.

52 In the first place, and with great respect, there seems to be an inconsistency between the first and second sentences in the above passage. Damages are awarded under this head of claim for the destruction or diminution in the capacity to earn money: Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 per Windeyer J at 566; Teubner v Humble (supra) per Windeyer J at 506; Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 per Barwick CJ at 658. The victim of a tort who cannot demonstrate that his earning capacity has been diminished or destroyed by the tortfeasor's conduct has not suffered this form of loss and is not entitled to be compensated as if he had. Implicit in the making of the award of $5000, therefore, is an acknowledgment by the learned trial Judge that there was some diminution of the pre-accident earning capacity. I think we must take it, therefore, that when his Honour said in the first sentence of the quoted passage that he was not persuaded that the appellant had lost any work capacity in consequence of the injuries which he sustained on 13 October 1994, his Honour did not mean that there was no compensable diminution in earning capacity in consequence of those injuries.

53 In any event, there is a substantial body of evidence that the appellant did have a not insignificant earning capacity prior to the accident. In August 1993, the appellant was seen by the orthopaedic surgeon, Prof D J Wood, who described the appellant as "of normal affect and exhibited normal spontaneous mobility, normal gait and normal change of posture". Prof Wood thought that it was likely the appellant had sustained "a ligamentous strain superimposed on a spine with early degenerative disc disease" from which he had made a "partial recovery". Prof Wood assessed the appellant as "currently able to perform light manual and sedentary work" and thought that he would be able to "perform the duties of a service station driveway attendant, courier driver, taxi driver, clerk or gatekeeper on a full-time basis".

54 The rehabilitation specialist, Dr A R Robinson, saw the appellant on several occasions between May 1993 and May 1994, and gave evidence that the appellant's low back condition and dermatitis would prevent him from working as a motor mechanic but that he "would have thought" the appellant could manage to work for 30 hours a week handling a piece of equipment weighing about two kilograms such as a spray gun. There was some discussion with him as to whether this should be ascertained objectively by some form of work trial conducted under the supervision of rehabilitation experts, but, pressed for his opinion, he said he "would have expected" that the appellant could manage that level of work activity.

55 The appellant's treating medical practitioner, Dr Prendergast, gave evidence that although he did not consider it would be desirable for the appellant to attempt to work for 30 hours per week as a spray painter because of the adverse effect this might have on his contact dermatitis which was irritated by contact with chemicals such as solvents, it was his opinion that before the 1994 accident the appellant "certainly had employable and useful skills".

56 After making full allowance for the unreliability of the appellant's own evidence on the subject of his pre-accident earning capacity, there was a body of independent evidence that, as disabled as he was, or as he claimed to be, there was a capacity to work, thus leaving open the real prospect that sooner or later he might find a suitable part-time job. This was certainly the view of the medical officers who had assessed him in order to see whether he qualified for continuation of social security benefits. Notwithstanding the appellant's best efforts to persuade them to the contrary, he was assessed in late 1993 as insufficiently disabled to qualify for the continuation of the disability support pension pursuant to s 94(1) of the Social Security Act 1991 (Cth). In order to qualify for the continuation of that pension the appellant had to demonstrate an impairment of 20 per cent or more under the impairment tables set out in the Act and a continuing inability to work. The appellant could not convince the Commonwealth medical officers that he had that level of impairment and an inability to work. His disability pension was terminated and, as has been noted, at the time of the accident in question he was receiving a job search allowance.

57 The precise extent of the appellant's residual earning capacity immediately before the accident of 13 October 1994 involves considerations with respect to which there is, naturally, little direct evidence and it may seem to be an unreal exercise to attempt any arithmetic. However, as counsel for the appellant points out, to value the total and permanent loss of the appellant's earning capacity at $5000 is to value it at only about $11 per week for the 12 years that remained of the appellant's notional working life after trial, using the 6 per cent tables. If the commencement of the period of economic loss is taken to be the date of the accident, on which date the appellant was of the age of 46 years with a notional working life of 19 years, the sum of $5000 would represent only about $8 per week for lost earning capacity. This, I think, is much too little. It would reflect a pre-accident earning capacity of less than one hour per week on the minimum wage.

58 Whilst fully recognising that arithmetical precision is impossible, nevertheless, doing some sums can provide some guidance. In my opinion, the best approach is to take 13 October 1994 as the starting point in the process of assessing economic loss. On that date the appellant had a residual earning capacity which, although severely diminished by the multiple disabling conditions referred to, was not completely gone. Having regard for the fact that he was actively seeking work and had just found a prospective employer in Mr Stawarz to do work which he obviously believed he would be able to do - casual painting on a subcontract basis - it should be accepted that his retained earning capacity, such as it was, did have a value. One way to value it might be to take the value of the work that Mr Stawarz had immediately available for him - say, a seven to eight-hour painting job at, say, $12 per hour - and assume that the appellant might have been able to do, say, one seven-hour job each week, all going well. If that was discounted by, say, 50 per cent for factors such as the risk of a lack of continuity in such work, the risk that there may be periods when the appellant's symptoms and/or dermatitis prevented him from doing any work at all and for the risk that due to his impaired physical state he may not have been able to carry on until age 65, the appellant can be seen to be a man who lost an earning capacity having a value of about $25,000, the sum being $84 per week for 19 years on the 6 per cent tables ($50,350) discounted by 50 per cent.

General damages - pain, suffering and loss of amenities

59 Concerning the challenge to the claim for non-economic loss - compensation for pain and suffering - I do not accept that the amount of $50,000 is inadequate. Although I think it is true that the learned trial Judge tended to approach the evaluation of this head of claim on the basis that the appellant had made practically a full recovery, even if it is accepted that the appellant had not done so and that there was a risk of further deterioration in the future, the award cannot be said to be so inadequate as to be beyond the range of the exercise of a sound discretionary judgment. It was a serious accident. There was nearly a month of hospitalisation and a long period of convalescence. However, there has not been a complete recovery inasmuch as the appellant now has a second level of pain in his back and episodes of pain in the groin, all the doctors are agreed that he has made a good recovery. This recovery appears to have taken place over about three years at most so that by the end of that time his general well-being (including his mobility and pain levels) compared favourably with his general well-being immediately before the accident, as long as he did not try to do too much. That remains the position. Whilst it must be accepted that the addition of another level of pain in his back and other symptoms such as groin pain must have reduced the appellant's enjoyment of life and that there is a risk of further deterioration and increased symptoms of pain, an award of $50,000 is not insubstantial. I am not persuaded that it is unduly low. This is a head of damage which the Courts have always approached with moderation in fairness to defendants and because of the danger of overlapping. Although it is now 25 years ago, it is worth remembering that in Sharman v Evans the High Court considered that the sum of $80,000 was an excessive award for this head of damage in the case of a young woman who had been made paraplegic.

60 Concerning the claim for a sum of money to meet the need created by the respondent's negligence for domestic services fulfilled by members of the appellant's family following his accident, I would not be prepared to interfere with the award of $1248. A defendant is liable to pay damages under this head only if his tortious conduct has created a real need for the services, the test being that if they were not provided by members of the family or other volunteers, the injured party would have engaged paid help. The evidence as to need was very much a matter for the trial Judge to assess. The opportunity to see and hear the witnesses (including the appellant) give their evidence on this subject and to observe the appellant during the course of the trial gave him a very considerable advantage in evaluating the appellant's claim that services to the extent claimed had been, or would be, actually needed. Counsel for the appellant relied heavily on the evidence of the orthopaedic surgeon, Mr Batalin, as to need, but the evidence in question was given in response to leading questions and without much expatiation. The evidence is at AB 251 - 254 and the relevant parts of it are as follows:

"All right, thank you, Mr Batalin. In the light of the pathology that we've just looked at, and the radiology that you've described to his Honour, would you agree that it would be sensible, from a medical point of view, for Mr Lyszkowicz not to do any heavy cleaning or ironing?---Absolutely.

And would you agree that it's reasonable from a medical point of view that he gets help, say 2 hours a week, to do heavy cleaning and ironing?---Yes."

"What I was putting to you is that given that this man's degeneration related to the fall will increase as he gets older, would you agree with me that his need for home help would increase with time as a matter of logic?---Yes, yes."

61 In light of the way these questions are framed, it is difficult to know what to make of the answers. That an orthopaedic surgeon might consider it "sensible" to "get help" with "heavy cleaning or ironing" does not establish that a need had been created in the appellant which it was reasonable to require the defendant to fulfil by payment of money.

62 The main evidence of need for domestic services came from the appellant and from his wife. His Honour considered this evidence to be exaggerated. He said:

"Doubtless the plaintiff's wife rendered additional services to him but nowhere near the extent that she and he each maintained. As sometimes happens in these cases in my opinion the plaintiff and his wife found it difficult to distinguish between those tasks which Mrs Lyszkowicz would have performed for him in the ordinary course of daily life with its attendant ups and downs and periods of ill-health arising from his condition before October 1994, and those different things peculiar to the injury sustained in October 1994."

63 In the end, his Honour awarded compensation based upon a need for two hours per week for 52 weeks following the appellant's discharge from hospital, at a rate of $12 per hour. It is true that he appeared to relate the period of 52 weeks to the period during which, according to Dr Prendergast's evidence, the appellant had "an element of unemployability", but I think, properly understood, all his Honour was doing was using Dr Prendergast's evidence to identify a maximum period during which there may have been a compensable need.

64 It was not disputed that the appellant needed hospitalisation at Sir Charles Gairdner Hospital and needed treatment as an outpatient at Royal Perth Hospital on the dates covered by these accounts and that the accounts represent reasonable treatment costs. The trial Judge disallowed the claim for reimbursement of these costs because the accounts were not rendered until after the expiration of the limitation period stipulated in the Limitation Act 1935 and were rendered on the request of the appellant's solicitors. He thought that the appellant should refuse to pay the accounts and plead the Limitation Act defence as part of his duty to mitigate his loss. With respect, I do not think this can be right. The Limitation Act does not expunge debts and it is not unreasonable for a creditor to wish to discharge a debt even although a Limitation Act defence might be available to him. That is to say, it is not unreasonable to decline to rely on such a defence. The principle that the victim of a tort must act reasonably to mitigate his loss does not extend to placing a duty on a plaintiff to avoid paying hospital and medical accounts reasonably incurred by pleading a Limitation Act defence.

Refusal to allow appellant to reopen to call Dr Delaney

66 This ground of appeal, which is ground 2, concerns the refusal of the trial Judge to allow counsel for the appellant at trial to reopen his case to call a specialist dermatologist, Dr Delaney. This application was made after hearing Dr Prendergast's evidence about the extent and severity of the appellant's dermatitis and the ways in which this must have affected his pre-accident earning capacity. Dr Prendergast was called as part of the respondents' case. The grounds on which the application to reopen was made were that Dr Prendergast's evidence went beyond what had been notified to the appellant in the pre-trial exchange of medical reports so that the appellant was taken by surprise.

67 I doubt very much that the evidence given by Dr Prendergast really did differ from the evidence which ought to have been anticipated in the light of his various reports and the various certificates which he signed referring to the appellant's condition of dermatitis. That the appellant had been treated by, or seen by, Dr Delaney with respect to this particular condition must have been, or should have been, known to the appellant's legal advisers. Certainly it was known to the appellant. Naturally enough, the appellant's case in chief did not place any emphasis on the extent of the appellant's pre-accident disabilities and it is easy to see why a deliberate decision might have been taken not to call Dr Delaney to give evidence as part of the appellant's case in chief.

68 The rule that a plaintiff should present the whole of his case at once is designed to ensure that the trial process is completed fairly and expeditiously and that trials are not unduly long. Leave will not lightly be given to a plaintiff to reopen once he has heard the opposing case. In this case the trial Judge observed that the appellant had every opportunity to call Dr Delaney as part of his case and had not done so even although it was obvious that the appellant's pre-accident earning capacity would be in issue. It is apparent that the trial Judge considered that Dr Delaney's evidence would anyway be just another controversial medical opinion in a case in which his Honour thought, with some justification, too many doctors had been called. His Honour was not persuaded that he would be assisted by yet another medical opinion in light of all the evidence he had already heard.

69 In my opinion, these were proper grounds on which to refuse to allow the appellant to reopen to call evidence in reply. I would add that there is reason to think that the decision not to call Dr Delaney as part of the appellant's case was a deliberate tactical decision not to include the evidence he might give as part of the appellant's case in chief. To allow the appellant to reopen to call that evidence after hearing the respondent's case would be tantamount to allowing the appellant to split his case - that is, to present first a case in chief and then a case in reply. To encourage this tactic would cause trials to become longer and would erode the primary rule that a party must ordinarily adduce all his evidence when presenting his case.

70 I am not persuaded the trial Judge made any error in refusing leave to reopen.

71 All the other grounds of appeal, with the exception of that ground which pleaded that the learned trial Judge "demonstrated a reasonable apprehension of pre-decision adverse to the appellant", that is, bias, are nothing more than particulars of the grounds of appeal which I have specifically dealt with or argumentation in support of those grounds. Many of them are not in themselves proper grounds of appeal and would not have survived a strike-out application. It is a pity no such application was made. Thus, for example, ground 1 pleads:

"The learned trial Judge ... misconstrued the appellant's ... evidence that the pre-existing dermatitis (in either or both of his hands) prevented him from performing 'any dirty or heavy work' in the future."

72 This complaint, unless it is a particular of the plea in ground 11 that the award for loss of earning capacity was "wholly erroneous" leads nowhere. I make that same observation with respect to grounds 3.1, 3.2, 4.1, 4.2, 4.3, 5, 6, 7 and 9. I take the view that I have disposed of these grounds of appeal, if that is what they are, in dealing with the above grounds of appeal.

73 This leaves only the ground which alleges that the learned trial Judge was biased. As to this ground, I agree with all that has been said by Murray J.

74 It follows that, in my opinion, the appeal should be allowed, the judgment of the District Court set aside and in lieu thereof there should be an increased award of damages. I would have proposed an award made up as follows:

75 However, I am content to join in an order that the appellant should be awarded the sum proposed by Murray and Parker JJ, that is, $91,586.

76 PARKER J: I am in agreement with the increased award of damages proposed by Murray J and with the reasons his Honour has now published.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LYSZKOWICZ -v- COLIN EARNSHAW HOMES PTY LTD & ANOR [2002] WASCA 205 (S)

Costs - Successful appeal against quantum of damages - History of offers to compromise before trial - Impact on award of costs as to trial and appeal - Turns on own facts

Capolingua v Phylum Pty Ltd (1989) 5 WAR 137

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721

Mannix v Loumbos Pty Ltd [2002] NSWCA 32

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Transit Australia Pty Ltd v Crewford Australia Pty Ltd (1998) 1 QLDR 690

1 JUDGMENT OF THE COURT: The appellant's action against the respondents was tried in the District Court on 25 - 27 July 2001 as an assessment of damages. The trial Judge assessed the damages at $57,698. By reason of a history of offers of compromise made under the Rules of the Supreme Court, O 24A the appellant was awarded his costs up to and including 21 January 2000, but thereafter it was ordered that the respondents should have the costs of the action.

2 The appeal against the quantum of damages succeeded. An award of non-pecuniary general damages in the sum of $50,000 was left untouched, as was an award of $1000 to defray possible future medical expenses; otherwise an award of $5000 in respect of loss of earning capacity was increased to $22,000, an award of $1248 for past gratuitous services was increased to $3750, all of which doubled the award of interest from $450 to $900, and this Court awarded special damages of $13,936, the claim for which (with a minor adjustment in relation to the amount) had been refused by the trial Judge on the ground that the claim was for hospital expenses which were statute barred. In the final analysis, this Court set aside the award of $57,698 made by the District Court and substituted an award of $91,586, an increase of $33,888.

3 The appellant's application for the costs of the trial and appeal was opposed. We allowed the parties time to present written submissions in support of their respective arguments and, having received those documents and supporting affidavit evidence in relation to the history of the matter, these are our reasons in respect of the award of costs which, both in respect of the trial and the appeal, lie within the discretion of the Court.

4 The first offer of compromise was that of the respondents made on 12 January 2000 to settle the action for the sum of $60,000, special damages and costs. Special damages had not then been quantified. On 21 February the appellant made a counter-offer to settle the action for $120,000 damages, special damages and costs. This was followed up on 19 June 2000 by providing particulars of some special damages totalling $1075.50 and promising more when the appellant obtained particulars of any costs charged to Medicare. The appellant thereafter in fact provided no such further particulars.

5 The next development was on 12 December 2000 when the respondents increased their offer to $75,000, including special damages, but exclusive of costs. Nothing seems to have eventuated from that and on 21 March 2001 they increased their offer yet again to $90,000 and costs, the offer being made in the context of the disclosure of a little over $1000 in special damages and a reference to the possibility of unspecified further amounts.

6 The appellant eventually responded to that offer on 21 June 2001 by making a counter-offer to settle for $105,000, plus any outstanding matters in respect of which Medicare would require reimbursement and costs. The respondents did not accept that offer and on 18 July informally offered to settle for $75,000 "all in". Thus the matter went for trial.

7 The respondents' argument is that although they appreciate that following the appeal the appellant well and truly exceeded the respondents' offers made in January 2000, December 2000 and July 2001, the appellant has in the final result obtained an award very close to the $90,000 the respondents offered in March 2001. They say that should have been accepted and therefore they should have the costs following the date of that offer.

8 Particularly is that the case the respondents argue because that offer was made in the light of disclosed special damages of $1075.50. They point out that it was not until Friday, 20 July 2001 that the appellant added to that claim the costs incurred with Royal Perth Hospital which were particularised as amounting to $10,960. Even then the appellant did not make the further claim ultimately pressed at trial in respect of the costs of hospitalisation at Sir Charles Gairdner Hospital. The invoices in respect of that treatment were not presented by the appellant to the respondents until 24 July 2001, the day before the trial was due to commence. We note that the great bulk of those costs claimed by the appellant comprised the special damages of $13,936 which are awarded by the judgment of this Court.

9 When those costs were disclosed, the respondents did not, informally or otherwise, seek to amend their offer of settlement. Had they accepted this claim, that would no doubt have justified an increase from their informal offer of $75,000 to very close to the $90,000 which they had offered in March. Instead, the respondents opposed this claim on the ground that both in respect of the costs incurred at Royal Perth Hospital and Sir Charles Gairdner Hospital the appellant had not, in truth, suffered the loss because any claim made by the hospitals against the appellant could be resisted on the ground that the limitation period had expired. This Court found that proposition, which appealed to the trial Judge, to be without merit.

10 In those circumstances, it seems to us that it is not clear that even if there had been earlier disclosure of the special damages in question, albeit outside the limitation period, the respondents would so have adjusted their offer of settlement as to result in an amount in the region of or greater than that which, following the appeal, the appellant has recovered. It seems to us therefore that upon that ground the costs of the trial and the appeal should not be awarded to the respondents and the appellant should not be deprived of his costs.

11 The respondents make a further submission that if that be our view, at least in respect of the appeal the conduct of the appellant's counsel and solicitors was such that he should be deprived of no less than half of his taxed costs. It is pointed out that the grounds of appeal were in a number of respects subject to criticism by the Court and it is submitted that some were abandoned and the appellant achieved only limited success in relation to the remaining grounds.

12 It is true that there were 15 grounds, which had been settled by the counsel who argued the appeal (not Ms Marche). They did raise something of an ambit claim and little attempt had been made to concentrate on matters which had merit. To that extent the Court was not assisted to define the issues sought to be raised by the appellant in respect of the trial Judge's assessment of damages. However, the argument of the appeal was not, in our view, unduly lengthened by attempts to support untenable grounds. Indeed, our criticism of ground 15, which alleged perceived bias on the part of the trial Judge, was that it was made and not abandoned without any attempt to support it by argument. In all the circumstances, it seems to us that the appellant should not be penalised by being deprived of a portion of his taxed costs.

13 In our view, the respondents should pay the costs of the appeal and of the trial to be taxed.

• Loss of earning capacity
• General damages - pain, suffering and loss of amenities
• Gratuitous services
• Special damages - hospital expenses
• Refusal to allow appellant to reopen to call Dr Delaney