Riley v Cocco

Court of Appeal (NSW)|2001-06-28|Before: Mason P, Heydon JA, Young CJ, Mr J

Background On 30 March 2000 Patten DCJ entered a verdict and judgment for the plaintiff in the sum of $103,709, and ordered the defendant to pay the plaintiff's costs. The claim related to injuries allegedly sustained in a motor vehicle accident, liability for which was admitted by the defendant on 6 May 1996. 3 The plaintiff appealed on the ground of inadequacy of damages. The defendant cross-appealed. The defendant complained that the trial judge erred in finding that the plaintiff's ability to lead a normal life had been significantly impaired for a continuous period of at least twelve months within the meaning of s 79A of the Motor Accidents Act 1988. The significance of the cross-appeal in this respect is that if the defendant were correct, the plaintiff could not recover damages for non-economic loss. The defendant also propounded many other arguments to the effect that the damages were excessive.

The trial judge's findings 4 The plaintiff's evidence about the circumstances of the 6 May 1996 accident, which the trial judge apparently accepted, was summarised thus by the trial judge. "The Plaintiff was born on 30 November 1947 and according to his testimony has very limited reading and writing skills. At the time of the accident he was employed as a Plant Operator by Allied Mines for whom he had been employed for twenty-three years. His duties required him to drive and operate heavy vehicles and machinery. It was his practice with some of his workmates to travel to between their homes and the mine, north of Singleton where they worked, by minibus, taking turns to drive. He lived at Beresfield, a distance of about 100 kilometres from the mine. On the day in question, the Plaintiff, who was then working what he described as the 'dog-watch' shift between 11pm and 7am, was travelling home from work as a passenger in the front seat of the minibus, when a white car, travelling in the opposite direction, crossed to the incorrect side of the road and collided with it. He was leaning forward to remove something from the glove box when he heard someone cry, 'Look out'. He was jolted by the impact and struck his head on the windscreen, causing it to shatter." 5 The plaintiff thereafter suffered other accidents. On 1 July 1996, the plaintiff's neck was jarred and its condition was aggravated when a large rock was accidentally dumped in the truck he was driving at work. On 29 April 1997 the minibus hit a kangaroo. In May 1997, while the plaintiff was journeying to work in the minibus, an owl collided with and broke the window of the bus. On 15 May 1997 the minibus, while taking the plaintiff home from work, had a tyre blow out. The vehicle swerved but the driver kept it under control and there was no impact. The plaintiff said that as a result he was "shaken up". After the tyre was changed, the bus proceeded on its way. That evening the plaintiff went out line dancing with his wife and said that while on the dance floor he went to pieces and started crying, and felt that he had nothing to live for any more. 6 After a lengthy review of the evidence, the trial judge made the following findings: "Although the issues raised in this case are by no means easy to resolve, in my opinion, the Plaintiff was an honest witness, who gave responsive answers to questions and did not consciously seek to exaggerate his condition. He was not, however, a good historian and his recollection of events was relatively poor. Moreover, difficulties of the case have been compounded by the fact that, although a considerable body of medical evidence was tendered, most of it suffered from the deficiency of an inaccurate or incomplete history. I am satisfied, accepting the evidence of the Plaintiff and his wife, that as at January 1996, he was physically fit and capable of performing all the duties of his employment as a heavy vehicle and machine operator and that he was also, at that time, fit to pursue his principal recreational activity of bicycle riding. It seems plain that, at the time, there was a degree of degeneration in his cervical spine, but I am satisfied that it was then, asymptomatic, notwithstanding evidence suggesting that, in or about 1992, he experienced symptoms which led to radiological investigation and, so far as his shoulder was concerned, reference to an orthopaedic surgeon. The documentary evidence satisfies me that, in the accident with the loader in January 1996, the Plaintiff jarred his back causing lower back pain and some neck pain. Although it appears that the symptoms had largely resolved by the subject accident on 6 May 1996, the Joint Coal Board Occupational Health Service documentation indicates that, although he had returned to normal shift hours, on two days a week, he was to be assigned general i.e. light duties for half his shift. In the subject accident, I am satisfied, that he suffered injuries to his neck, upper shoulder, shoulder blade and left knee which were productive of pain and limitation of movement and headaches. The symptoms were sufficient for the Plaintiff to consult Dr Mellows on several occasions and to undergo chiropractic treatment and physiotherapy which extended well into 1997. Notwithstanding, the Joint Coal Board Occupational Health Service documents seem to make it clear that, by the end of June 1996, he was regarded as fit to work normal shifts as a full-time truck operator, with the caveat 'Mr Riley has been advised to contact his supervisor, doctor and myself should he experience an increase in symptoms.' In November 1996 his progress was interrupted by bleeding, thought to be a gastro-intestinal problem but, in the result, diagnosed as relating to haemorrhoids. This was treated at Maitland Hospital on 26 and 27 November and, on the evidence, should not be regarded as having any causal connection to the subject accident. His neck symptoms had however, in the meantime, been aggravated on 1 July 1996 when a large rock fell into the back of his truck, as I have previously related. It is, I think, to be inferred that following his hospitalisation for bleeding haemorrhoids, the Plaintiff's return to work [in November 1996] was again monitored and in the period up to May 1997, it appears that there was some limitation on the duties which he performed, albeit, minor. This was the situation on 15 May 1997 when the tyre of the minibus blew out on the Plaintiff's return from work, an event which seems to have been, at least, a precipitating factor in the emotional breakdown which the Plaintiff suffered on the dance-floor that evening. In the twelve month period between May 1996 and May 1997 I am satisfied that there was a change in his emotional state, sufficient to be noticed by his wife, but apparently not of such magnitude as to prompt him to seek medical advice. However, I am also satisfied that, since childhood, he has exhibited symptoms of suffering from an anxiety state which may well be related to his low level of literacy. It follows, in my view, that the May 1996 accident did no more than aggravate his pre-existing anxiety condition, such condition being further aggravated by the other incidents which befell him while travelling in the minibus, including the culminating event of the tyre blow out, leading directly, at least from a temporal point of view, to his emotional breakdown. It is, I think, also probable that the industrial situation and proposed changes at his workplace had some impact upon his emotional condition. In other words, I am of the opinion, that the subject accident was no more than one of a number of, more or less equal, factors leading to the eventual breakdown. As to his physical symptoms, that is those relating to his neck and knee, I think, on balance, that the opinions of Dr Scougall should be preferred where they conflict with those of other practitioners. They seem to me to accord with the evidence of the Plaintiff and his wife and as the symptoms have troubled him continuously since May 1996, there seems no reason to attribute them to some other cause. I also accept Dr Scougall's opinion that neck and right [sic: scil left] knee pain continue to impose some restriction upon his ability to perform work which involves strenuous physical activity but, in my view, such restriction is slight and would not prevent him working at the level he worked in the month prior to May 1997. The Plaintiff's physical symptoms which have continued since the accident, whilst relatively minor, are, I think, when coupled with the contribution the subject accident has made to his emotional condition, sufficient to warrant a finding that his ability to lead a normal life has been significantly impaired for a continuous period of not less than twelve months. I asses 18% as the relevant proportion of a most extreme case which represents an award of general damages for non-economic loss of $7,000. Out of pocket expenses were agreed as to arithmetic as the sum of $20,464.31. The Plaintiff's claim, as to this, was disputed by Mr Guihot who submitted that it should be reduced by fees payable to, or claimed for Dr Fenton, Dr Bull, Dr Lumley and Dr Mellows after 15 May 1997. There is force in this contention. Certainly the fees payable to Dr Fenton should be wholly excluded. Other items should be allowed in part, consistently with the views I have expressed. I think it would be reasonable to quantify Out of Pocket Expenses at $15,000. As to compensation for past wage loss and diminished earning capacity, it was common ground that the Plaintiff lost 9 days of work in the period after the subject accident and, on the basis that his net income was then of the order [of] $843 net per week, I allow $1,517 for this wage loss. In the period up to 15 May 1997, the Plaintiff seems to have carried out the duties of his employment apart from the period unrelated to the accident when he was treated for bleeding haemorrhoids. Although he did not work after the tyre blow out incident of 15 May 1997, I do not think the evidence established that the subject accident was more than a contributing factor in the sense that it, with other factors, predisposed the Plaintiff to the emotional breakdown he suffered on 15 May 1997 which, in turn, seems to be the principal reason for him ceasing work. On this basis I will award $20,000 as lost income for the period from 15 May 1997 to his retrenchment or separation in October 1998. There has been since then, I think, some diminution in his income earning capacity attributable to the subject accident, arising out of his neck pain and restriction, albeit slight, and the part which the subject accident plays in his anxiety state which itself, on the evidence, is improving. This has to be assessed in light of the fact that he took voluntary redundancy (which may or may not have been otherwise inevitable) and that, as agreed, he would have been obliged, in any event, to retire at age 60. Of course, also to be taken into account, on the basis that the Defendant must take him as he finds him, is the limiting factor that his ability to read and write is very restricted. I think it would be reasonable to allow a lump sum of $40,000 as compensation for his diminished capacity to obtain employment on the open market in competition with wholly able bodied persons. There remains the question of compensation for future medical expenses and treatment. There should, I think, be some allowance to cover medication and occasional visits to medical practitioners, but not of the order suggested by the Plaintiff. In all, I allow $3,000 under this head."

The figures assessed by the trial judge totalled $86,517. In circumstances to be examined below, the trial judge later decided that a further $17,192 should be allowed as a " Fox v Wood " component.

Cross-Appeal The defendant's arguments 7 The cross-appeal is logically anterior to the appeal in the sense that if the defendant's arguments succeeded it would not be necessary to consider the plaintiff's arguments on the appeal. It is therefore convenient to deal with it first. 8 The defendant's written and oral submissions were very lengthy and detailed (as indeed were those of the plaintiff in answer). It is not useful to set them out fully. In outline the defendant's submissions may be grouped as follows.

The plaintiff failed to satisfy the s 79A thresholds 9 The defendant submitted that the trial judge erred in attributing as much causal significance to the tortious injury on 6 May 1996 as he did in the light of the fact that on 29 January 1996, before the 6 May 1996 collision for which the defendant was liable, the plaintiff had jarred his neck and back in a work accident, on 1 July 1996 he re-aggravated his neck condition when a large rock accidentally fell into his truck at work, on 29 April 1997 he was a passenger in a minibus which collided with a kangaroo, in May 1997 an owl collided with and broke the front window of a minibus in which the plaintiff was a front seat passenger, throughout 1997 and 1998 there were rumours of large-scale redundancies and related industrial action (for example on 15 May 1997) and on 15 May 1997 the plaintiff was a passenger in a minibus which experienced a tyre blow out. The defendant submitted that the trial judge should have found that the 6 May 1996 accident did no more than temporarily aggravate a pre-existing anxiety state of long standing and that the real causes for the plaintiff's post 15 May 1997 symptoms were the accidents and industrial troubles leading up to that day; or alternatively that each of the later incidents was a novus actus interveniens. Similarly, the defendant submitted that so far as the plaintiff was complaining of physical injuries, the 6 May 1996 accident did no more than temporarily aggravate underlying degenerative changes. 10 The trial judge was said to have erred in accepting the evidence of the plaintiff and his wife that there had been a change in him between the 6 May 1996 accident and the 15 May 1997 accident because:

(a) their evidence was said to have been so unreliable in relating the history of the plaintiff's physical symptoms as to preclude acceptance of their evidence about his emotional condition;

(b) no complaint of emotional problems was made to any medical practitioner seen between 6 May 1996 and 15 May 1997;

(c) despite medical evidence of the plaintiff's long-standing pre 6 May 1996 anxiety state, he and his wife denied it; and

(d) the 1997 car accidents involving the owl, the kangaroo and the tyre blow out, and the 1997 industrial action, were the real causes of the psychological troubles of the plaintiff which became evident from the evening of 15 May 1997 on. 11 The defendant submitted that no reliance could be placed on various doctors (Drs Mellows, Ball, Lumley, Canaris and Scougall) who had been given flawed histories by the plaintiff. This reliance was said to have led the trial judge to erroneous conclusions about the plaintiff's physical state as well as his psychological state. The trial judge should have given greater weight to Dr Lewin, because his report was based on the most accurate and complete history. 12 The defendant submitted that the key finding of the trial judge was: "the May 1996 accident did no more than aggravate his pre-existing anxiety condition, such condition being further aggravated by the other incidents which befell him while travelling in the mini bus, including the culminating event of the tyre blow out, leading directly, at least from a temporal point of view, to his emotional breakdown."

It was submitted that this finding was flawed because it was not supported by, in the sense that it did not coincide with, any particular doctor's view. It rested merely on selected elements from various medical opinions. 13 The defendant submitted that so far as the trial judge's conclusions were credit-based, they were glaringly improbable, were inconsistent with incontrovertibly established facts and represented an abuse of the trial judge's position of advantage. 14 Hence the trial judge erred in finding that the plaintiff's ability to lead a normal life had been significantly impaired for a continuous period of more than twelve months and in finding that the plaintiff's non-economic loss was at least 15% (i.e. 18%) of a most extreme case.

Economic loss in the period 15 May 1997 - 20 October 1998 15 The trial judge's award of $20,000 for the period 15 May 1997 to 20 October 1998 was attacked on the following grounds. First, insufficient reasons were given. Secondly, it was wrong to conclude that the plaintiff had diminished earning capacity arising from neck pain and restriction. Thirdly, any emotional breakdown after 15 May 1997 was not caused by the 6 May 1996 accident for the reasons summarised above.

Economic loss post October 1998 16 The trial judge was said to have erred in awarding $40,000. First, he was criticised for giving insufficient reasons. Secondly, there was no physical incapacity arising from neck pain and restriction. Thirdly, the plaintiff's emotional condition was not caused by the 6 May 1996 accident.

Past out-of-pocket expenses 17 The award of $15,000 was attacked. It was said the trial judge had failed to provide reasons for this figure, and had failed to discount the expenses in part on the basis that he regarded the 6 May 1996 accident as only one among a range of contributing factors to the plaintiff's post 15 May 1997 emotional breakdown.

Future medical expenses 18 The trial judge was attacked for failing to give reasons for the $3,000 allowed.

Workers' compensation elements 19 The submissions in relation to these subjects will be dealt with later.

The fate of the cross-appeal 20 There is no doubt that the trial judge's task was extraordinarily difficult in several ways. First, the range of factors both pre-dating and post-dating the tort which potentially contributed to the plaintiff's condition was wide. Secondly, the plaintiff's poor memory affected the value not only of his evidence but also of the medical evidence. Thirdly, there were difficulties caused by the plaintiff's economic capacity at his age (52 at the date of the judgment) in an industry likely to make him redundant with his lack of marketable skills and his near illiteracy. The ultimate question is whether the trial judge's approach was appellably erroneous, or whether on the other hand what he did was a commendable attempt to grapple with almost insoluble forensic difficulties. 21 The defendant's arguments on the cross-appeal were put with considerable tenacity and earnestness. The essential problem was that they were much more appropriate for the consideration of a trier of fact at first instance than for an appellate court. The defendant had to demonstrate positive appellable error. In circumstances where the trial judge could choose between a wide range of possibilities in a context where credit had some importance, there must be substantial, though certainly not complete, deference shown to his opinions. 22 In effect the trial judge found that the 6 May 1996 accident made the plaintiff worse than he would have been without it; that although the emotional symptoms did not manifest themselves acutely until another year had passed, it did not follow that they were not caused in part by the 6 May 1996 accident; and that while the plaintiff managed to soldier on without much complaint for some time, further events, taken with the effects of the 6 May 1996 accident, made his real condition clear. 23 One flaw in the defendant's attack on the trial judge is that it takes no account of various classes of evidence positively supporting the view that the 6 May 1996 accident caused symptoms of emotional injury. That is, the defendant's submission suggesting that apart from the evidence of the plaintiff and his wife there was no evidence of any change in the plaintiff is not merely exaggerated but entirely wrong. 24 While there is no medical report bearing a date in the period 6 May 1996 - 15 May 1997 recording a complaint about anxiety having been caused to the plaintiff by the 6 May 1996 accident, there are reports dating from or from very soon after 15 May 1997 supporting the view that the plaintiff was experiencing anxiety in that period because of the accident. The trial judge found the plaintiff to be honest, and the defendant does not challenge that finding. The trial judge also found him to be unreliable, but he is much less likely to have been unreliable in narrating in mid 1997 generalised symptoms experienced in the quite recent past. In Dr Mellows' report of 23 June 1997, he said: "Apart from the physical injuries sustained by the [6 May 1996] accident over the following months he complained of intermittent headaches, sleepiness and increase in anxiety before travelling to work. This became very obvious when he saw me on the 15/5/97. …" (emphasis added)

Even if, as the defendant would have it, that records complaints on 15 May 1997 and not before, they are still complaints very close to the relevant time, and unlikely to be affected by weakness in recollection. According to Dr Mellows' report of 23 July 1997: "On the 15 May 1997 he came to me with obvious symptoms of anxiety/depression. He stated that he had been anxious since the [6 May 1996] accident and the major problem was actually travelling to and from work in the bus as this brought back vivid recollections of the accident. Apparently the bus had also been involved in two minor incidents since the accident and this had compounded the anxiety." (emphasis added)

This history is both plausible and given very near the relevant time. According to Dr Lumley's report of 31 July 1997 the plaintiff "has become very dependent upon [his wife] and increasingly so since the motor accident last year". 25 There was also lay corroboration for the view that the plaintiff had changed emotionally since the 6 May 1996 accident. Mr Downie, his immediate supervisor at work, said that after it: "There was a change in Bruce. When he - as said we'd sort of fluctuate a little bit in his ability to get back to full duties to the extent where he hadn't quite got back onto full duties on the loader and it took a bit of effort on - from the three parties, myself, Bruce and the Joint Coal Board, and when he had his accident which essentially put him back on light duties again he was quite disappointed, in fact we were all a little disappointed, but Bruce more than anyone because he'd worked pretty hard and stuck to the letter, he'd done all of his exercises in his own time, so yeah. And he also seemed to lose a little bit of confidence, I think perhaps in himself because as I said we'd fluctuated a little bit and I think he was cursing his bad luck as well. He became a little surly if I remember."

The trial judge did not criticise Mr Downie's evidence, and the defendant's submissions did not mention this part of it. 26 The plaintiff's wife's evidence was summarised thus by the trial judge: "She said that her husband's health immediately prior to the subject accident was very good, both emotionally and physically and in particular that he enjoyed socialising and riding his bicycle. In the period between May 1996 and May 1997, she said that her husband seemed, occasionally, withdrawn and unenthusiastic about going to work, which was out of his normal character. He also seemed bothered about little things and 'started to get clingy - used to want to accompany me everywhere'. She noticed that when they were out together, unlike previously, her husband nearly always remained by her side."

At Red 25V the trial judge indicated acceptance of the plaintiff's wife as a witness, and there is no reason to suppose that was not acceptance of all her evidence. 27 A second difficulty in the defendant's position is that even if the evidence of the plaintiff had to be looked at carefully because of its unreliability in some respects, and even if the evidence of the plaintiff's wife, given some time after the events in issue, also called for close scrutiny, the trial judge was well aware of the problem and bore it in mind in assessing the evidence. The defendant made some contrary submissions from time to time, but they were quite unsustainable. The defendant did not demonstrate that the trial judge assessed the credibility of the plaintiff and his wife so poorly that this Court can depart from his conclusions. 28 The third difficulty for the defendant is that a trial judge is not obliged to reject the whole of a medical expert's opinion or accept the whole of it. A trial judge may well be in a better position than any doctor to reach appropriate conclusions - better informed factually than any particular doctor and better informed in point of medical expertise in having access to all the available medical reports. Hence a trial judge can accept some of what one medical witness says and some of what another says. 29 A fourth difficulty for the defendant is that while the plaintiff may have made innumerable errors in points of detail in his evidence and in histories he gave, it does not necessarily follow that he was wrong in swearing to an increased anxiety state after 6 May 1996 or wrong in giving histories of the increased anxiety state to doctors on and after 15 May 1997. A witness can be mistaken in the particulars of little things but correct in fundamental and general things. That approach appears to underlie the trial judge's conclusions, and it does not seem erroneous. 30 Further, the complaint that the trial judge failed to give reasons for his conclusions about causation and about the figures for damage to income-earning capacity and out-of-pocket expenses ignores the fact that the trial judge's task did not readily permit detailed reasons to be formulated. There was, for example, a complaint that some attempt should have been made to quantify the relevant significance of the various factors having an influence on the plaintiff's position. This case raised imponderable difficulties in arriving at a conclusion of fact, judgment and degree. Any attempt at precision would have been wholly artificial and fictitious. 31 Finally, the specific figures selected for damages are in all the circumstances very far from unduly high. Once the trial judge's conclusions as to the credibility of the plaintiff and his wife are permitted to stand, they cannot be upset on that score. 32 In short, if it was necessary for the plaintiff to establish that in the first twelve months after the 6 May 1996 accident his ability to lead a normal life had been, or in the near future was likely to be, significantly impaired for a continuous period of not less than twelve months by the injuries suffered in the accident, the trial judge was correct in concluding that he had done so. The challenge to the causation findings and the challenge to the quantum of particular integers in the verdict fail. 33 A question arose in the course of argument, as distinct from being explicitly raised from the outset by the defendant, as to whether the emotional consequences for the plaintiff were of the type which a person of normal fortitude would suffer. An answer adverse to the plaintiff's interests should be rejected for two reasons. First, independently of the pre-existing state of the plaintiff, it was reasonably foreseeable that to be injured in the manner in which the plaintiff was in the 6 May 1996 accident would affect a person of normal fortitude. Secondly, the plaintiff's injury was not purely a matter of mental trauma: physical injuries were intermingled with mental trauma.

The appeal: issues other than workers compensation 34 The plaintiff contended that the trial judge awarded too little for non-economic and economic loss. The defendant, who in urging the merits of the cross-appeal on the court had been extremely critical of the trial judge, reversed his posture in defending the appeal and seemed to characterise the reasoning of the trial judge as approaching a model of that which should be done in arriving at difficult assessments of fact resting on credit, judgment, impression and degree. 35 The primary argument advanced by the plaintiff was that having found that the 6 May 1996 accident was a contributing cause of the plaintiff's post 15 May 1997 condition, the trial judge should have awarded damages on the basis that the full effects of the plaintiff's condition, including those flowing from the 15 May 1997 incident, were caused by the 6 May 1996 accident, and should not have attempted to dissect out those parts not related solely to the 6 May 1996 accident. 36 That argument fails. First, the pre-existing propensity to anxiety has to be taken into account. While defendants must generally take plaintiffs as they find them, they are not obliged to compensate plaintiffs irrespective of the possibility that pre-existing conditions would have caused the plaintiffs harm in any event: Wilson v Peisley (1975) 7 ALR 571 at 574; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 499. Secondly, if the various post 6 May 1996 incidents had not happened and the industrial relations circumstances had been different, it is likely that the plaintiff's post 15 May 1996 condition would have been less bad. The trial judge was entitled to reduce damages on account of these factors, since the defendant had no responsibility for any of them. This justifies the reduction of damages for the period 15 May 1997 to 22 October 1997 from over $60,000 to $20,000. It also justifies the reduction of damages for the period 22 October 1998 until the plaintiff's 60th birthday (at which time he would have had to leave the mining industry, and after which time he had little chance of remunerative activity) from a very large sum to $40,000. And it renders the trial judge's selection of 18% as the relevant proportion of a most extreme case defensible. In all the circumstances the trial judge's conclusions have not been shown to be outside the range of sound judgments on damages. 37 Like the defendant, the plaintiff attacked the trial judge's figures for past and future out-of-pocket expenses, and for similar reasons. That attack should share the same fate.

Workers' compensation issues 38 In the course of oral argument in the appeal, the plaintiff was given leave to add the following ground to his Notice of Appeal: "That the judgment of His Honour did not reflect the substance of His Honour's decision that the plaintiff be awarded the economic loss buffers of $20,000.00 and $40,000.00 in addition to any Workers' Compensation Payments which were to be repaid under Section 151Z of the Workers' Compensation Act to the Workers' Compensation Insurer." 39 The plaintiff pointed out that from 15 May 1997 until his retrenchment in October 1998, he had received workers' compensation payments. Section 151Z of the Workers Compensation Act 1987 provides: "(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but it is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Compensation Court. (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d)) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement." 40 The plaintiff raised a question whether the trial judge intended the plaintiff to receive not only the $20,000 awarded as a buffer for damage to his economic capacity in the May 1997-October 1998 period, but also the quantum of workers' compensation payments received which were repayable under s 151Z. 41 On the second last day of the trial proper, 16 November 1999, there was some discussion of the "Fox v Wood" component. In Fox v Wood (1981) 148 CLR 438 the High Court decided that a successful plaintiff-worker in a personal injuries case was entitled to recover damages representing the additional loss occasioned by having to repay to the workers' compensation insurer the gross amount of workers' compensation where that plaintiff had only had the benefit of the net amount after tax. Thus if $x is the sum of the workers' compensation payments received by the plaintiff-worker net of income tax, $y is the sum of the amounts paid to the Commonwealth by way of income tax, and $z is the sum of the gross weekly workers' compensation payments, such that x + y = z, the "Fox v Wood" component is $y. 42 On 16 November 1999 counsel for the plaintiff said that the "Fox v Wood" component was $16,356.15. Exhibit K was tendered. It revealed, inter alia, the level of workers' compensation benefits received by the plaintiff, and the figure of $16,356.15 was the tax deducted from those benefits over the years 1995-1996 to 1999-2000. 43 After the trial judge said in his reasons for judgment dated 20 December 1999 that the total of the heads of damage he was prepared to award was $86,517, he said: "As it seems to me on the authority of cases such as Kempsey District Hospital v Thackham (1995) 36 NSWLR 492, the above award will require adjustment to take account of benefits paid or payable to the Plaintiff under the Workers Compensation Act. As the parties should have the opportunity of either reaching agreement or addressing submissions in the light of these reasons, without entering a verdict, I stand the matter over to 24 January 2000, or such other date as may be arranged with my Associate, for further argument and the making of formal orders." 44 In Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 the facts were that a worker suffered a work-related injury in 1981 with one employer. That injury gave rise to a right to claim at common law for damages. The worker suffered another work-related injury in 1998 with a second employer which did not give rise to any common law rights. The worker sued the first employer at common law and recovered damages in respect of both injuries. The trial judge deducted from the assessment of damages amounts paid by both employers in respect of workers' compensation but did not deduct all future entitlements, which were payable by the second employer, under the Workers Compensation Act. The first employer appealed and the worker cross-appealed. The Court of Appeal, in allowing the appeal and dismissing the cross-appeal, held that s 151Z(1) did not apply. The court held that the compensation which had actually been paid by the second employer and compensation which was payable in the future was to be deducted from the worker's damages. 45 Thus on 20 December 1999 the trial judge was apparently contemplating, not that the plaintiff should repay the workers' compensation insurer the gross workers' compensation payments, nor that the defendant should indemnify the workers' compensation insurer, but that the amount of $86,517 should be reduced to take account of workers' compensation benefits paid in the past and payable in the future. 46 The matter did not in fact come back before the trial judge on 24 January 2000, though it did on 28 January 2000. On that day it was adjourned. The next day it was before the trial judge was on 30 March 2000. Mr Dooley appeared for the plaintiff and Mr Guihot for the defendant. What happened that day, as recorded in the transcript, is confused. There was confusion as to which counsel said what. There was confusion as to why the matter was before the trial judge. And there was confusion about what the parties were arguing. In the course of the hearing of the appeal, corrections were made to the transcript by agreement so as to attribute to particular counsel submissions which they in fact made, as distinct from those which the uncorrected transcript suggested they had made. So corrected, the transcript records the following: "DOOLEY: I wasn't here on the last occasion but as I understand it when your Honour mentioned it there was a problem with the Fox v Wood addition -- HIS HONOUR: I don't think anyone has ever raised that with me, not the Fox v Wood, there was a problem about deductions for workers compensation entitlements as I recall it.

GUIHOT: There are two sides to the same coin. Your Honour will recall in your Honour's judgment that your Honour stood it over for … (not transcribable) .. type adjustments which was a matter which I had raised at the trial. As much as the defendant would like to seek a deduction of workers compensation matters made in respect of the May 1997 accident, we take the view that in view of your Honour's findings that the adjustment will take place by virtue of section 151A [scilicet 151Z] so that the workers compensation payments will be refundable out of the plaintiff's damages to the employer rather than, as we would have liked to have argued and did raise at the trial, that they ought be adjusted in his verdict so your Honour from our point of view we would simply ask that your Honour enter a verdict in the amount as found by your Honour. My friend has an application which is the other side of that, however, in that he would seek to add the amount of the Fox v Wood to the verdict.

DOOLEY: Your Honour, it was a matter pleaded, I have an up to date Fox v Wood figure --

HIS HONOUR: Nobody can have mentioned the figure to me, I think, or I would --

DOOLEY: It was in the Furzer Crestani report, set out there, I think it was the way the argument developed your Honour, it was in the evidence, it was claimed and indeed it was as I say in the Furzer Crestani report.

HIS HONOUR: I think I must have overlooked it. What is your position about that Mr [Guihot]?

GUIHOT: I formally oppose it, I can hand to my friend a copy of the up to date Fox v Wood figure as at today.

GUIHOT: $17,192.15 your Honour. Your Honour could I formally protect my position by making the submission that your Honour ought not allow the Fox v Wood figure and I won't be making any submissions at length in support of --

HIS HONOUR: The submission is that I can't allow it, I take it.

GUIHOT: Can't allow it and secondly ought not allow the whole amount in respect of the periods for which --

DOOLEY: [This was not corrected, but the context suggests that the correct name was 'Guihot'.] I don't wish to make any further submissions in that respect your Honour.

HIS HONOUR: What do you say Mr [Guihot]? [This too was not corrected, but the context suggests that the correct name was 'Dooley'.]

DOOLEY: Your Honour, if monies have to go back to the insurer they go back in a gross amount, that's why Fox v Wood came into being and it's appropriate to add them back in. It was a claim made in the application, it was a claim particularised in the Furzer Crestani report that was before your Honour. It was not drawn to your Honour's attention and that is perhaps why your Honour has not included it.

DOOLEY: And we have to repay a gross amount to a workers compensation insurer.

HIS HONOUR: As a matter of justice it sounds as though it ought to be allowed to your client. What was the verdict Mr Dooley?

DOOLEY: The verdict was $86,517, added to which should be $17,192.15.

HIS HONOUR: That comes to $103,709." 47 The trial judge then said: "The situation is that I did overlook the plaintiff's claim for a ' Fox v Wood ' component and I think, in those circumstances, it is reasonable that I should now allow the plaintiff the appropriate sum, it being agreed that it is $17,192. I will enter verdict and judgment for the plaintiff in the sum of $103,709, it being agreed between the parties that no further adjustment is appropriate, notwithstanding the last paragraph of my judgment delivered on 20 December last year and the findings that I then made." 48 Thus it seems that on 30 March 2000 counsel for the defendant had formed the view that the course which the trial judge contemplated on 20 December 1999, namely reducing the award to take account of workers' compensation payments that had been made and were to be made, was not the correct course. Rather, counsel for the defendant said the correct course was for there to be a verdict in the amount of $86,517, leaving the workers' compensation payments to be refundable by the plaintiff. 49 The problem posed by the amended ground of appeal is whether the trial judge intended to arrive at a particular result not reflected on the face of his formal reasoning or his orders. The problem posed is a problem of construction - a problem of construing the language used by the trial judge on 20 December 1999 and 30 March 2000, in the context of what was under discussion on and before those occasions. Like many questions of construction, it must be answered as a matter of impression, and the reasons for any particular answer do not permit of much elaboration. 50 What the trial judge said on 20 December 1999 and 30 March 2000 does not suggest any intention on his part that the awards totalling $60,000 should be in addition to workers' compensation payments. There is no positive indication that that was his intention. His duty at the trial was to assess what damages the plaintiff was entitled to at common law (as modified by the Motor Accidents Act) for the consequences of the defendant's negligence in causing the accident of 6 May 1996. The content of those common law entitlements was unaffected by the existence of a right to compensation under the Workers Compensation Act, save in so far as that created a right to the "Fox v Wood" component. The extent of the common law entitlements was also not affected by the existence of a duty under the Workers Compensation Act to repay any monies received under it, except for the "Fox v Wood" component. When, in his reasons for judgment of 20 December 1999, the trial judge discussed wage loss for the three relevant periods - the period 6 May 1996 to 15 May 1997, the period 15 May 1997 to October 1998, and the period after October 1998, he did not convey any indication that the three figures of $1,517, $20,000 and $40,000 were incomplete or liable to be supplemented by workers' compensation payments actually received. At no later stage did he convey any such indication either. Accordingly this ground of appeal must be rejected.

Orders 51 Since the appeal and the cross-appeal have each failed, a question arises as to costs. One approach would be to order the appellant to pay the respondent's costs of the appeal and to order the respondent to pay the appellant's costs of the cross-appeal. However, it is undesirable for the parties to be put to the additional expense of costs assessment. The amount of time devoted by the parties to the appeal and the amount of time devoted by the parties to the cross-appeal appear to be about equal. In the circumstances there should be no order as to the costs of either the appeal or the cross-appeal, to the intent that each party is to bear its own costs and is not to recover any costs from the other. 52 The following orders are proposed:

Note that the court makes no order as to the costs of either the appeal or the cross-appeal. 53 YOUNG CJ in EQ: I also agree with the reasons of Heydon JA and the orders he proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Riley v Cocco [2001] NSWCA 379 FILE NUMBER(S) : CA 40261/00 HEARING DATE(S) : 28 June 2001 JUDGMENT DATE : 26 October 2001

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