NESTLE AUSTRALIA LTD v McDOUGALL

(i) whether the trial judge should have made a deduction for vicissitudes from the amount awarded for past economic loss. There was also a challenge to the award of economic loss for the period to September/October 1991;

(ii) whether such deduction should also have been made from the award for general damages;

(iii) whether his Honour wrongly excluded the potentiality of non-tortious work-related injuries from the assessment of the percentage deduction made for vicissitudes; and (iv) whether the trial judge erred in permitting any claim for future out-of-pocket expenses when such claims, although notified in a general sense, had not been particularised.

(1) In an award of damages for future economic loss, account must be taken of the vicissitudes which may affect a particular plaintiff's earning capacity. Account must be taken of both positive and adverse contingencies in assessing the appropriate award of damages, including the possibility of future non-tortious injury, as well as the possible development or deterioration of any pre-existing injury or condition.

Bresatz v Przibilla (1962) 108 CLR 541; Teubner v Humble (1963) 108 CLR 491; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 followed.

(2) Whether the usual deduction of 15% for contingencies or some other discount should be applied depends upon the particular circumstances of the individual. The trial judge's deduction of 25% for vicissitudes was within an appropriate discretionary range, given the respondent's particular circumstances.

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Moran v McMahon (1985) 3 NSWLR 700; Hobell v Leonard (unreported, NSWCA, 29 May 1990); Burnicle v Cutelli [1982] 2 NSWLR 26 followed; Commercial Union Assurance Company of Australia Ltd v Pelosi (unreported, NSWCA, 2 February 1996); Government Insurance Office of NSW v Wojnar (unreported, NSWCA, 15 December 1988); Urban Transit Authority of New South Wales v Seitis (unreported, NSWCA, 17 May 1995); New South Wales Insurance Ministerial Corporation v Sprengnagel (unreported, NSWCA, 28 March 1995) considered.

(3) While there is no particular rule or principle that there should be a deduction for vicissitudes in respect of past economic loss or general damages, if events have materialised between the date of injury and date of assessment these should be taken into

account in the assessment of other heads of damage. As the trial judge clearly had in mind the respondent's pre-existing medical condition, the submission that the trial judge erred in failing to make any deduction for vicissitudes from the amount awarded for past economic loss and general damages rejected.

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Koeck v Persic (1996) Aust Torts Reports 81-386 followed; Hall v Tarlinton (1978) 19 ALR 501; Barber v Meadwell (1980) 32 ALR 162; Struthers v Harris [1983] WAR 123 considered.

(4) Given the evidence, no appealable error has been shown in the trial judge's assessment of the respondent's residual earning capacity.

(5) There was no error in the trial judge taking into account the whole of the past wage loss claimed by the respondent in respect of the period from the date of the accident to September/October 1991.

(6) The purpose of particulars is to assist in having a fair trial, by an opposing party being made aware, by the provision of particulars, of the nature of the case to be met. However, the mere fact that a claim is not particularised does not, of itself, prevent such a claim being made if there is evidence to support it. In the absence of any prejudice to the appellant being asserted, the trial judge did not err in allowing the claim for future out-of-pocket expenses.

R v Associated Northern Collieries (1910) 11 CLR 738 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214; Dare v Pulham (1982) 148 CLR 658 followed; Chakravarti v Advertiser Newspapers Ltd (unreported, High Court of Australia, 20 May 1998); Sims v Wran [1984] 1 NSWLR 317; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228; Emmerton v University of Sydney [1970] 2 NSWR 633; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; Saunders v Jones (1877) 7 Ch D 435; Philipps v Philipps (1878) 4 QBD 127; Lachaume v Broughton (1903) 3 SR (NSW) 475; Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570; Domsala v Barr [1969] 1 WLR 630 considered.

Mason P I agree with Beazley JA. Powell JA I agree with Beazley JA.

Beazley JA This is a defendant's appeal from the award of damages made by Badgery-Parker J in favour of the plaintiff/respondent for personal injuries sustained on 10 April 1987. The trial was heard in June 1996.

(i) whether the trial judge should have made a deduction for vicissitudes from the amount awarded for past economic loss. There was also a challenge to the award of economic loss for the period to September/October 1991;

(ii) whether such deduction should also have been made from the award for general damages;

(iii) whether his Honour wrongly excluded the potentiality of non-tortious work-related injuries from the assessment of the percentage deduction made for vicissitudes. See Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; and

(iv) whether his Honour erred in permitting any claim for future out-of-pocket expenses when such claims, although notified in a general sense, had not been particularised.

It is convenient in the first instance to deal with the matter of principle raised by the third issue.

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 3

It is well established that, in an award of damages for future economic loss, account must be taken of the contingencies or vicissitudes or the "various possibilities" which may affect a particular plaintiff's earning capacity: see Bresatz v Przibilla (1962) 108 CLR 541 at 544; Teubner v Humble (1963) 108 CLR 491 at 508-509.

Contingencies may be positive or adverse and account has to be taken of both in assessing the appropriate award of damages. Luntz in Assessment of Damages for Personal Injury and Death 3"! Edition 1990 at 288, identifies sickness, accident, unemployment and industrial disputes as the four major adverse contingencies which expose employees to loss of income. The possibility of future non-tortious injury (but not tortious injury), as well as the possible development or deterioration of any pre-existing injury or condition, are other adverse contingencies to which regard must be had: see Wynn at 499. The reason for not taking into account the possibility of tortious injury in determining the appropriate deduction to be made for vicissitudes was explained in Wynn, at 498-499:

"That possibility must be disregarded because, in the event of further injury, damages would be assessed, as in this case, by allowing for any pre-condition resulting in or having the possibility of resulting in impaired earning capacity. Only by disregarding the possibility of further tortious injury does the law ensure full compensation."

It is accepted that the "usual deduction" for contingencies is 15%. This percentage was accepted by the High Court as "the practice" in New South Wales, "subject to adjustment up or down to take account of the plaintiff's particular circumstances": see Wynn at 498. See also Moran v McMahon (1985) 3 NSWLR 700 at 713-714; Burnicle v Cutelli [1982] 2 NSWLR 26 at 30; Hobell v Leonard (unreported, New South Wales Court of Appeal, 29 May 1990); Commercial Union Assurance Company of Australia Ltd v Pelosi (unreported, New South Wales Court of Appeal, 2 February 1996). See also Government Insurance Office of NSW v Wojnar (unreported, New South Wales Court of Appeal, 15 December 1988) at 13 where Kirby P stated:

"A conventional discount of 15%... is allowed in many cases, although this Court has been at pains to say that there is no warrant for inflexibility in fixing the appropriate deduction. The eventualities which people, individually, are likely to face in their lives necessarily vary enormously. They are particular to each injured claimant."

A survey of the authorities reveals that discounts of up to 40% have been applied for vicissitudes. Urban Transit Authority of New South Wales v Seitis (unreported, New South Wales Court of Appeal, 17 May 1995) was one such case, where this Court increased the discount for vicissitudes from 25% to 40% where the plaintiff had cerebral palsy. It should be noted, however, that a 40% discount has been described as "high": New South Wales Insurance Ministerial Corporation v Sprengnagel (unreported, New South Wales Court of Appeal, 28 March 1995) per Priestley JA at 8. I make reference to these authorities, not to seek any comparison with this case, but to emphasise the fundamental notion that whether the usual discount or some other discount should be applied depends upon the particular circumstances of the individual.

In dealing with the percentage deduction to be made in respect of vicissitudes in this case the trial judge stated:

"The question then is to what extent [the award for future economic loss] should be discounted for vicissitudes. It is clear on the whole of the medical evidence that before the accident the plaintiff suffered a condition of his spine capable of producing significant disability, even disability as great as that which he has in fact experienced, in the event that he was subjected to trauma. In a small degree, his past history of pain in the neck and thoracic spine demonstrates his vulnerability. His employment as a truck driver, had the injury in April 1987 not occurred, would have provided ample opportunity for the sort of trauma which could have rendered his spine symptomatic; but had that occurred he would have been entitled to compensation for the consequences and I therefore leave that out of account in determining the extent to which his assessed loss ought to be discounted. However, his energetic lifestyle, involving as it did participation in many vigorous sporting activities also provided ample opportunities for the occurrence of trauma of a sort capable of precipitating symptoms and disability. Taking all of these things into account it appears to me that it is appropriate to discount the present value of his future loss of earnings by 25%."

Counsel for the appellant submitted that this passage revealed two errors in his Honour's approach. First, it was submitted that the reference to "compensation" for a work related injury was a reference to tortious injury (and, therefore, by inference excluded an injury compensable by workers' compensation only) contrary to the principle in Wynn. Secondly, that his Honour failed to include a number of relevant lifestyle matters which should have impacted on the percentage deduction to make in this case.

It is correct to say that this passage in his Honour's judgment, in so far as it deals with the possibility of future work related injury, does not distinguish between tortious and non-tortious injury. The language used by his Honour is wide enough to encompass both and there is no specific indication in the judgment as a whole to assist in determining his Honour's meaning. If the passage was intended to deal only with tortious work-related injury, it is an accurate statement of the law. If it intended to deal with work-related injury which is not tortious in nature but which only gives rise to workers' compensation, it is not. Likewise if it refers to both types of injury, it is not an accurate statement of the law. If the passage is intended to refer only to tortious injury, his Honour either omitted to deal with non-tortious work related injury as part of the relevant contingencies which required consideration, or left the matter unexpressed, or treated it as falling within the "usual contingencies" of which account is taken. As it is not possible to determine whether there is in fact appealable error in this part of his Honour's judgment, the preferable approach to this ground of appeal is to consider the overall deduction for vicissitudes which his Honour made to ascertain whether that was so low, given all the relevant circumstances of this case, as to itself demonstrate error. This leads logically to the second challenge made to the percentage deduction which his Honour applied.

Neither party challenged the trial judge's finding that the respondent, who was employed as a truck driver at the time of the accident, had a pre-existing spinal condition which of itself was "capable of producing significant disability, even disability as great as that which he has in fact experienced, in the event that he was subjected to trauma" (emphasis added). This finding was significant and would in the normal course result in a greater than usual deduction for contingencies.

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 5

Counsel for the appellant submitted that there were other matters which his Honour failed to take into account which were relevant to the assessment of the deduction for

vicissitudes. He submitted that the fact that the respondent suffered "ongoing conditions of pleurisy, bronchitis and pneumonia which would in all likelihood have had some impact on his ability to perform full time work" had not been taken into account. With respect to this submission I am unsure how a person continues to have ongoing conditions of pleurisy and pneumonia. However, bronchitis was a relevant consideration - but one in respect of which there was no evidence which would require his Honour to deal with it outside the notion of the usual vicissitude of sickness: see Luntz at 288.

I am of the opinion, therefore, that the only question which truly arises on this issue is whether a 25% deduction for vicissitudes was too low, given the matters which were relevant to the assessment. Those matters were the respondent's pre-existing back condition; his energetic sporting life and his general health. The trial judge, in dealing with his pre-existing back condition found that it could have brought the respondent to the same condition as had the accident if he was subjected to trauma. The trauma to which he might be subjected which was relevant to this question could have arisen from any circumstance including non-tortious work related trauma. Also relevant to the assessment was the evidence of Dr Carey, the respondent's treating orthopaedic specialist was, that the respondent's pre-existing back condition did not put him in any particularly vulnerable category.

I can see no reason why it should be assumed that the trial judge, who is an experienced judge, failed to take these matters into account. The deduction of 25% for vicissitudes was a substantial increase on the usual deduction. There were no other significant factors, which, in my opinion, should have led to an increase in the deduction to be allowed. A deduction of 25% was, on the evidence, within an appropriate discretionary range, given the respondent's particular circumstances. Accordingly, I am of the opinion that the percentage deduction allowed by his Honour ought not be disturbed.

Should a Deduction for Vicissitudes have been made from the Awards for Past Economic Loss and General Damages?

The appellant submitted that the trial judge erred in failing to make any deduction for vicissitudes from the amount awarded for past economic loss and general damages.

There is no particular rule or principle that there should be a deduction for vicissitudes in respect of past economic loss or general damages. However, as Miles CJ said in Koeck v Persic (1996) Aust Torts Reports 81-386 at 63,359:

"No authority was cited on the question whether allowance for vicissitudes or contingencies should be made in components of an award of personal injury damages other than for future loss of earning capacity. Logic would suggest that such a course would be appropriate, although in practice it is probably done intuitively. It has, as far as I am aware, never been suggested that 15 percent should be deducted from the component of future pain and suffering because of ordinary vicissitudes. Logic also suggests that regard should be had also to past vicissitudes if there is an appreciable time between the injury and the hearing, as there almost always is. The submission was made, and experience suggests that, in practice, awards for pain and suffering, whether past or future, and awards for

loss of earning capacity, both past and future, are commonly discounted for contingencies which arise on the evidence in a particular case or which are applicable to a particular plaintiff."

However, if events have materialised between the date of injury and the date of assessment, 'facts should be preferred to prophesies" and taken into account in the assessment of other heads of damage: see Luntz p36. Conformably with this principle, examples can be found where a trial judge has taken into account factors which related to a plaintiff's pre-accident employment, such as strikes or redundancies. Thus in Hall v Tarlinton (1978) 19 ALR 501, the trial judge made a deduction to take into account the possibilities that the opportunities of working overtime may be reduced, or that the plaintiff may be retrenched and so on. The Full Court agreed with the trial judge that it would be impossible to be precise about this matter, and concluded that they could not be satisfied that the trial judge was wrong in his conclusions on the issue. In Barber v Meadwell (1980) 32 ALR 162, the trial judge made a deduction to take into account periods of unemployment. The Court was not able to say that the trial judge was wrong in this approach. In Struthers v Harris [1983] WAR 123, the trial judge discounted the pre-trial loss of earning capacity by 15%. The Court found that this was excessive, saying at 125:

"There is nothing in his 'previous work history' as opposed to the general vicissitudes of life so-called which would as a probability support the conclusion that had he not been injured he would not have been in that employment as at the date of the assessment. If some discounting is called for it would, in our opinion, be less than 15 per cent."

In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 645, Deane, Gaudron and McHugh JJ stated that damages for pain and suffering (as well as the Griffiths v Kerkemeyer damages awarded in that case) had to be reduced "to take account of the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar [pre-existing] neurotic condition ". Their Honours drew no distinction between past and future losses. Luntz adopts this view and states at 131 that "the same approach [to the reduction for vicissitudes in respect of future economic loss] should apply to all heads of damages, not only loss of earning capacity."

The question whether a deduction should be made from heads of damage other than future economic loss was also considered by Miles CJ in Koeck v Persic. His Honour stated at 63,360-63,361:

"... I think that Luntz's view is consistent with the authorities and is to be accepted....However, the question whether a reduction for contingencies is inadequate or excessive in a particular case, is one that should be approached with considerable caution by an appeal court. The decision of the trial judge on the issue of contingencies is essentially an exercise in value judgment or in nature, *quasi discretionary": see Moran v McMahon, per Priestley JA at Aust Torts Reports 69.586; NSWLR 723. It is an assessment of the impact of hypothetical events which may occur in the future or may have occurred in the past or both. The trial judge must base the prediction on the facts as found. In that sense the prediction is an inference, but it is not an inference of fact. It is an inference from facts. Hence whilst the finding as to the plaintiff's capacity to earn immediately before the injury is a finding of fact, any finding as to what the plaintiff was likely to have earned, if not so injured, either in the past between the date of injury and hearing, and in the future after the date hearing, is a prediction and not a finding of fact. Hence, in my view, this Court as a court of appeal is not

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 7

in a position like that in Warren v Coombes (1979) 142 CLR 531 where it was said that the appellate court is as able to draw inferences from primary facts as is the trial judge. Rather the position is like that in Gronow v Gronow (1979) 144 CLR 513 where the primary decision being one essentially of discretion, the appellate court will not substitute its own view for that of the trial judge except in the well established categories of demonstrable error of fact or law or manifest unreasonableness or injustice."

There is no suggestion that the appellant made any particular submission at trial that a deduction for vicissitudes should be made from the awards for past economic loss or general damages. Given that his Honour clearly had in mind the respondent's pre-existing medical condition I do not consider that this Court should infer that the trial judge did not make the "intuitive" assessment to which Miles CJ referred and which I consider is an accurate reflection of the manner in which trial judges usually approach their tasks in this regard. I would reject this ground of appeal.

The appellant further submitted that his Honour erred in the assessment of the respondent's residual earning capacity in assessing it at $100 per week. It was submitted that the respondent's pre-trial earnings in his job as a fork lift driver at an orchard represented his true earning capacity upon which the calculation of future economic loss should have been based.

Ido not consider that the appellant has demonstrated any error in his Honour's approach on the issue. The respondent's employer at the orchard, Mr Plunkett, gave evidence that he had given the respondent a job in circumstances where the respondent, whom he already knew, had approached him "out of the blue" for employment and suggested to him that there was a WorkCover Incentives Scheme for Employers (WISE), which would pay some of his wages. Mr Plunkett gave evidence that the respondent "does have problems from time to time" with his work and that he is instructed to let the employer know if that is the case and "somebody else will take over his job". He said the respondent had required some time off work since taking up the employment at the orchard. Mr Plunkett said that he would consider continuing to employ the respondent at the expiration of the scheme but that "because of the situation we have to have somebody that is reliable during the season and we have to have somebody we know can do the job.... it is unlikely we will be able to offer him work after that."

"Q. If the protection that you have under the WISE scheme, in so far as any fresh injury is concerned, is withdrawn, would that have any effect upon your decision whether you would employ him or not?

A. Yes, if that is withdrawn we would not take the risk."

Given this evidence, I am of the opinion that no appealable error has been shown and that his Honour's assessment of the respondent's residual earning capacity should not be disturbed.

Past Economic Loss: Claim for the Period from Date of Accident to September/October 1991

It was argued that the trial judge also erred by taking into account the whole of the past wage loss claimed by the respondent in respect of the period from the date of the accident to September/October 1991, in circumstances where there

was no evidence to support that loss. Counsel for the appellant submitted that the only evidence in respect of the period was that the respondent "did his usual work". This submission derived from the respondent's evidence in chief, where he had responded affirmatively to the question "I think you continued your truck driving...?". Counsel for the appellant also submitted that the "schedule of trips" which was tendered in the respondent's case revealed that the respondent had been doing regular long hauls from Shepparton to Sydney and return. Further, in cross examination the respondent had given the following evidence:

"Q. And thereafter, you would agree would you not, that you did all of your normal driving work?

The respondent was also cross-examined on the contents of the schedule of trips, in respect of which he gave this evidence:

"Q. If anything, I put it to you, that the frequency of those trips was more frequent than was usually the case?

Q. That during that period if anything your (sic) were doing more trips that you usually, did even before this accident?

Q. Well, an average of five a fortnight is about ten a month, is it not?

Q. And an average of 12 is a bit more than ten a month?

A. Mmm I suppose so, yeah. Might have been some weekend work.

Q. But you're asking his Honour to accept, Mr McDougall, that shortly prior to you going off in September 1991, you were doing less than you had previously been driving because of problems in your back. It just can't be right, can it?

A. I don't think I said I was doing less. I said my back was getting sorer.

Q. Do you agree with me then that you were not in fact doing any less driving jobs before you went off, and what you ask his Honour to accept is that you went off because of the back pain that you were experiencing in doing the work that you were performing; is that a correct statement?

Q. What you are saying to his Honour is, it is not that I was driving less than Thad been before the accident, but that I was having increasing pain whilst doing that driving work; that's what you are saying is it?

Counsel for the appellant also relied upon the history which the respondent gave to the doctors was to the effect that he had continued with his usual work until September/October 1991, and the respondent's employer's evidence that up until the respondent went off work in September/October 1991 he "had been doing the normal driving duties".

If this was the only evidence on this issue, the appellant's point would be good. However, there was other evidence which did support the respondent's claim for this period. The respondent gave evidence that prior to the accident he averaged about 5 trips per fortnight or 120 trips per year. His schedule of trips revealed that in the post accident period to September 1991 he averaged 100 trips per year. During the course of his cross-examination he gave this evidence:

"Q. Well, how long before you ceased in 1991, do you say you first started to do something less than your usual driving trips?

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 9

A. I couldn't tell you for sure. I was taking trips off. Every now and again I would ring them up and tell them they will have to put another driver in the truck. I wouldn't get a doctor's certificate. I would just take a trip off."

There was also a schedule of comparable employees handed to the trial judge as part of the respondent's "Schedule of Damages". No objection was taken to that part of the schedule by counsel for the appellant. That schedule supported a conclusion that the respondent was earning less than those comparable employees during that period. There was also the history recorded by Dr Voss, a specialist physician retained by the appellant to provide a medico-legal report in the matter, that the respondent "recalls missing out on some trips, but did not 'record it as sick leave', but 'just took a trip off.'"

His Honour was entitled to take the whole of the evidence into account, including that part which supported the claim for the period to October 1991. In my opinion no error has been shown in his Honour's assessment of economic loss in this regard.

In the respondent's statement of claim, filed in September 1992, it was alleged that the plaintiff's treatment was continuing and that particulars of past and future out-of-pocket expenses would be provided in due course.

On 2 February 1996, the respondent filed an amended statement under Pt33 of the Supreme Court Rules. Pt33, r8A provides, in respect of claims for damages for personal injuries, that a plaintiff may not file a notice to set proceedings down for trial:

"... [U]nless the party has served on all other parties who have an address for service in the proceedings a statement seeing out -

(d) where any claim is made in respect of loss of income -

(i) the name and address of each employer during the 12 months preceding the accident together with details of the periods of employment, capacity in which employed and net earnings during each period of employment;

(ii) the name and address of each employer since the accident together with details of the periods of employment, capacity in which employed and net earnings;

(iii) the amount claimed in respect of loss of income to the date of the statement by comparison between what the plaintiff has earned since the accident and what he [or she] would have earned but for the accident, setting out, in respect of what the plaintiff would have earned but for the accident, particulars thereof including where appropriate, particulars of the earnings of comparable employees and the identity of those employees or, where appropriate, particulars of payment which the plaintiff would have received under a relevant award or industrial agreement and the description of that award or industrial agreement;

(iv) particulars of any alleged loss of earning capacity and future economic loss;

(v) where self employed, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income; and

(vi) particulars of any claim in respect of services of a domestic nature or services relating to nursing or attendance,

(e) copies or originals of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including -

(i) hospital, medical and similar accounts (f) copies or originals of all hospital and medical reports available at the time of serving the statement upon which the plaintiff intends to rely at the trial."

It will be seen that r8A, whilst not expressly requiring a claim for future out-of-pocket expenses to be particularised, envisages that if such a claim is made, it will be supported by relevant documentary material. The respondent's amended Pt33 statement provided particulars of on-going disabilities. However, the only particularisation of out-of-pocket expenses was in these terms:

"The workers compensation insurer for the Plaintiff's employer has advised that it has paid medical and other expenses of $52,426.65. In addition, the plaintiff has incurred expenses which have not been reimbursed. Particulars of these latter expenses and his expected future expenses are not presently available."

There is no indication in the appeal book as to what documentation was provided in support of any of the respondent's claim for out-of-pocket expenses as required by r8A(2)(f).

On the third and last day of the hearing, after the respondent had completed his evidence, the respondent's counsel handed up a document entitled "Plaintiff's Schedule of Damages". Relevantly, this included a claim for future out-of-pocket expenses in excess of $200,000. The specific claims were:

"FUTURE OUT-OF-POCKET EXPENSES (life expectancy of 42 years according to Australian life tables

Medical Consultations -Dr Zelwer, psychiatrist at $160.00 weekly

(160.0 x 1255.2) 200,832.00 -Mr Zaitzev, physiotherapist at $49.40 weekly

(49.40 x 1255.2) 62,007.00 -Mr Goegan, masseur at $11.50 weekly

(13.10 x 1255.2) 16,443.00 -Ecotrin for pain and anti-inflammation

At trial, the appellant's counsel objected to this claim, no specific notice having been given of it. Counsel for the respondent sought to maintain the claim by categorising it as "an ambit claim", whatever that might mean. His Honour

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 11

allowed the claim to be made and awarded a total sum of $75,000 On the appeal, counsel for the appellant submitted that the claim should not have been allowed. He did not seek to make out any case of prejudice. Rather, he submitted:

"Particulars are required in order to identify the nature and extent of the case against which the defendant is called upon to answer. Without particulars of these items it ought not to have been allowed at all."

A complaint of this nature has drawn some judicial sympathy. In Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, Lord Radcliffe said at 241:

"Proper use of [particulars] shortens the hearing and reduces costs. But if an appellate court is to treat reliance upon them as pedantry or mere formalism, I do not see what part they have to play in our trial system."

This comment emphasises the important part which particulars play in the adversarial trial system. Their proper function has been the subject of frequent judicial comment, the essence of which is that the purpose of particulars is to assist the having of a fair trial, by an opposing party being made aware, by the provision of particulars, of the nature of the case to be met. In R v Associated Northern Collieries (1910) 11 CLR 738, Isaacs J described the function of particulars in these terms at 740-741:

"T take the fundamental principle to be that the opposite party shall always be fairly appraised of the nature of the case he [or she] is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his [or her] legal liability. He [or she] is to receive sufficient information to ensure a fair trial and to guard against what the law terms "surprise":

but he [or shed is not entitled to be told the mode by which the case is to be proved against him [or her]."

Gibbs J in Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 said at 219:

"Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds."

Hunt J in Sims v Wran [1984] 1 NSWLR 317 said at 321, that the question is not whether one party has adequate knowledge of the actual facts, but "it is a question of whether he [or she] has adequate knowledge of what the other party alleges are the facts, for that is the case which he [or she; must meet'. See also Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commissioner of Taxation at 219, 220, 221; Sims v Wran at 321 per Hunt J; Saunders v Jones (1877) 7 Ch D 435 at 451; Dare v Pulham (1982) 148 CLR 658; Philipps v Philipps (1878) 4 QBD 127 at 139; Lachaume v Broughton (1903) 3 SR (NSW) 475; Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570; Domsala v Barr [1969] 1 WLR 630.

Gaudron and Gummow JJ, of the High Court, said more recently in Chakravarti v Advertiser Newspapers Ltd (unreported, High Court of Australia, 20 May 1998) at 25:

"Doubtless, the pressures on court time and the cost of litigation ordinarily require that, at trial, a party be held to the particulars or those parts of the pleadings which specify the case to be made if departure would occasion delay or disadvantage the other side."

However, the mere fact that a claim is not particularised does not, of itself, prevent such a claim being made if there is evidence to support it. Thus, in Dare v Pulham, the High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) said at 664:

"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) [(1916) 22 CLR 490 at 517]); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron [(1936) 54 CLR 572 at 576-577]); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [(1916) 22 CLR at 517, 518]; Sri Mahant Govind Rao v Sita Ram Kesho [(1898) LR 25 Ind App 195 at 207]). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v Irvings Pty Ltd [(1956) 96 CLR 99 at 111, 112, 127]), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v Public Transport Commission (NSW) [(1976) 9 ALR 437 at 446; 50 ALJR 666 at 668])."

"In the event that evidence, admitted without objection, tends to establish a claim for damages higher than the claim made in the particulars, the defendant is placed in no stronger position to avoid an assessment based upon that evidence than he would be if a verdict was returned on facts not alleged in particulars but admitted without objection at the trial to establish the cause of action pleaded."

It must be always borne in mind, however, that the overriding principle is that of fairness.

Turning to the particular circumstances of this case, there was, in fact, no evidence to support the lavish claim for ongoing psychiatric expenses, save that it was known from the medical evidence that the respondent saw a Dr Zelwer on two occasions, and that Dr Zelwer was of the opinion he would need long term treatment for his depression in the form of medication (prozac) as well as an unspecified form of "long time support". There was no evidence as to whether prozac could only be prescribed by a psychiatrist or whether it could be prescribed by a general practitioner. In any event, there was no evidence that the respondent had had or was having any form of psychiatric assistance other than for the two consultations with Dr Zelwer.

-There was evidence, however, of the frequency and cost of physiotherapy treatment from 1991 to the date of trial. This averaged three visits per month at a cost of $25 per visit. In addition there was evidence of the frequency and cost of remedial massage which the respondent had had up to the date of trial. There

URJ NESTLE AUSTRALIA LTD v McDOUGALL (Beazley JA) 13

was also evidence of the cost the respondent had expended on medication in the eighteen months prior to trial. This was an average of between $800 - $900 per annum or about $15.60 - $17.50 per week.

The trial judge was satisfied of the respondent's need for future physiotherapy and/or remedial massage. His Honour was also satisfied he would need analgesia for back pain. His Honour made an arbitrary allowance for those items in a sum of $50,000. He did not accept the extensive claim for psychiatric treatment and depressive medication. Rather, he found:

"IT am satisfied that he will need treatment from time to time with anti-depressant medication and, to monitor that, attendance on medical practitioners including a psychiatrist on occasions."

His Honour also found that he would need to attend upon his medical practitioner for his back from time to time. His Honour awarded $25,000 "for those aspects of his ongoing and future treatment".

The future, of course, can only be predicted from knowledge from the past or present. In the present case, the respondent's past and continuing treatment was particularised to the appellant, even if only in a general sense. Having regard to the evidence which was available of past and continuing treatment, the award of $75,000 was sound. Indeed, counsel for the appellant did not contest the amount awarded. He contested the award of any amount, given the absence of any pre-trial particularisation of the claim.

Whilst no criticism can or should be directed to a party in the position of the appellant for objecting, at trial, to this claim being made in the way it was, I do not consider his Honour erred in allowing it. The appellant was in possession of the medical evidence prior to the trial, from which it was obvious that the respondent was having treatment and medication in respect of which the claim for future expenses was made. It was also aware of the amount claimed for past medical treatment. It is not clear whether the appellant had ever been provided with a breakdown of these costs. However, if it was not, there was no evidence that it had sought any particularisation of it. More significantly, the appellant advanced no case of prejudice either before the trial judge or on appeal in support of this ground of appeal. There was no suggestion, for example, that it had been deprived of an opportunity to properly assess the damages in the matter so as to make a payment into court, or that it could not assess the veracity of the amounts claimed or the basis upon which they were claimed. Its stance was based on what it perceived was a matter of principle. If a claim was not particularised, it should not be allowed.

A trial judge has a wide discretion in the conduct of a trial, that discretion being governed by the overriding principle that to the extent that our system of law allows, all parties to the litigation be treated fairly. In the absence of any prejudice to the appellant being asserted, his Honour did not err in allowing the claim for future out-of-pocket expenses.

In my opinion, the appeal should be dismissed with costs.

Appeal dismissed with costs. Counsel for the appellant: P J Deakin QC Solicitors for the appellant: John Joseph Mannix

Counsel for the respondent: C O'Connor QC/M F Fletcher